Context

• The draft regulation proposed by the University Grants Commission (UGC) concerning the selection and appointment of vice-chancellors has become a contentious issue.
• The draft regulation raises concerns about federalism, with critics arguing that the draft regulation undermines the constitutional principles of State autonomy.
• Therefore, it is now imperative to examine the UGC’s proposal, the constitutional and legal challenges it raises, and its implications for the governance of higher education in India.

Key Provisions of the Draft Regulation and the Mandate of the UGC

• Key Provisions of the Draft Regulation
  • The proposed amendment to the UGC Regulation 2010 aims to widen the eligibility criteria for the appointment of vice-chancellors.
  • The current regulation mandates that only academicians with at least 10 years of experience as professors are eligible.
  • The draft proposes to include professionals with equivalent experience in industry, public administration, or public policy.
  • Proponents argue this broadens the talent pool, while detractors claim it deviates from the UGC’s primary mandate and encroaches on the States’ jurisdiction over higher education.
• The Mandate of the UGC
  • Established under the University Grants Commission Act of 1956, the UGC was tasked with coordinating and maintaining standards in university education across India.
  • Its functions include advising governments, regulating fees, determining teaching standards, and allocating funds.
  • However, the Act does not explicitly authorise the UGC to regulate the selection or appointment of vice-chancellors.
  • Critics argue that this overreach undermines the legislative autonomy of States, which typically establish universities and prescribe the qualifications and appointment processes for their leadership.

Legal and Constitutional Challenges Faced by UGC’s Draft Regulation

• The Scope of the UGC’s Mandate
  • The UGC Act, 1956, explicitly outlines the commission’s role in maintaining and coordinating academic standards across universities.
  • Its functions, as outlined in Section 26 of the Act, include prescribing qualifications for teaching staff, setting minimum academic standards, and coordinating educational initiatives.
  • However, the Act does not confer the UGC with powers to regulate the administrative appointment of vice-chancellors, whose responsibilities often extend beyond academic oversight to include administrative leadership and institutional governance.
  • Critics argue that the draft regulation overreaches by venturing into a domain not expressly granted to the UGC by its parent Act.
  • Subordinate legislation, such as UGC regulations, is valid only when it operates within the framework of the enabling statute.
  • The principle of ultra vires applies here, if a regulation exceeds the authority granted by the statute, it is deemed invalid.
  • In this case, the UGC’s attempt to dictate the selection and qualifications of vice-chancellors could be challenged as being outside its statutory remit.
• Judicial Interpretations and Precedents
  • Suresh Patilkhede vs The Chancellor, Univ. of Maharashtra (2011)
    • In this case, the Bombay High Court held that the qualifications and methods of appointing vice-chancellors do not directly impact academic standards and therefore fall outside the UGC’s jurisdiction.
    • The court emphasised that administrative appointments, including those of vice-chancellors, are primarily the prerogative of the respective university statutes and State legislatures.
  • Kalyani Mathivanan vs K.V. Jeyaraj and Ors (2015)
    • The above interpretation was partly overturned by the Supreme Court in this case.
    • The apex court held that UGC regulations, being subordinate legislation under a Central Act, have binding authority over universities, including those established under State laws.
    • This ruling created a precedent for the enforceability of UGC regulations, though it did not explicitly address whether the UGC could regulate areas beyond its statutory mandate.
    • The Supreme Court’s reasoning in Kalyani Mathivanan has been critiqued for its interpretation of parliamentary procedures regarding subordinate legislation.
  • The ‘Direct Impact’ Test
    • An additional challenge lies in determining whether the UGC’s regulations on vice-chancellors meet the direct impact test on academic standards.
    • Courts have repeatedly held that regulations must demonstrate a clear and direct connection to the UGC’s mandate of maintaining academic quality.
    • The administrative and leadership qualities of vice-chancellors, while significant, may not directly affect teaching and research standards in a manner that justifies UGC intervention.

Implications on Federalism and the Principle of Repugnancy

• The UGC draft regulation also raises questions about its compatibility with the constitutional framework of federalism.
• Education is a subject in the Concurrent List of the Indian Constitution, meaning both the Union and the States can legislate on it.
• However, the Constitution ensures that State legislatures retain significant autonomy in matters of higher education governance, particularly concerning universities established under State statutes.
• Article 254 of the Constitution addresses situations where a state law conflicts with a Central law.
• If such a conflict exists, the Central law prevails, and the State law is void to the extent of the inconsistency.
• However, this principle applies primarily to laws enacted by legislatures, not to subordinate legislation like UGC regulations.
• Consequently, a regulation made by the UGC cannot override a state statute unless the State law is explicitly repugnant to a Central law.

Recommendations and the Way Forward

• The SC’s observation in the Kalyani Mathivanan case that Regulation 7.3.0 on vice-chancellors is recommendatory rather than mandatory for State universities offers a potential resolution to the current controversy.
• Treating the UGC’s guidelines as advisory respects the autonomy of State legislatures while providing a framework for maintaining educational standards.
• To avoid future conflicts, the UGC should align its regulations with the constitutional distribution of powers and focus on areas explicitly within its mandate.
• A collaborative approach involving consultation with State governments and other stakeholders can ensure that reforms in higher education respect federal principles while achieving the goal of academic excellence.

Conclusion

• The UGC’s draft regulation on the appointment of vice-chancellors touches upon critical issues of federalism, legislative competence, and the role of regulatory bodies in higher education.
• While the intention to broaden the selection criteria may be well-meaning, the proposal raises constitutional and policy concerns that cannot be ignored.
• Addressing these challenges requires a nuanced understanding of the UGC’s mandate, the constitutional framework, and the need for cooperative federalism in the governance of education in India.