My phone finally stopped ringing after a series of calls from my students and well-wishers.
Everybody had one question: “Since the Supreme Court has disallowed deemed universities from using the word ‘university’, what will be the validity of the degrees issued so far and what is the course of action?” I told everybody that the past, present and future degrees are valid as per Section 22 of the The University Grants Commission Act, 1956 (UGC Act) and the course of action would be based on a recall of the past and understanding of the present. Let us begin with the past.
The First Education Commission report of Sarvepalli Radhakrishnan (1948-49) devoted a chapter on the genesis of deemed universities. The report recommended that the government evolve a method of creating university charters similar to many countries, where universities are set up not through acts of legislature but through charters granted by the head of the state. Thus was born the concept of deemed university under Section 3 of the UGC Act. As recommended by the commission, the National Commission for Higher Education and Research Bill which unfortunately got derailed, aimed for a permanent parliamentary solution to the deemed university nomenclature. The need to fix this was born out of a legitimate concern from global peers who constantly wanted to know “when will deemed universities become universities?” not knowing that they are universities for all practical purposes.
This deemed university conundrum was discussed by a three-judge bench of the Supreme Court in Prem Chand Jain vs R K Chabra, (1984) in which the court left it to the Centre to interpret or amend, if necessary Section 23 of the UGC Act. Empowered by this order, the Ministry of Human Resources Development (MHRD) directed the UGC to form a committee comprising the MHRD Secretary and Chairmen of UGC and AICTE. This committee recommended that since deemed universities are public universities established by an executive charter, they can use the word ‘university.’ Based on this, the UGC during September 2006 allowed deemed universities to use the word university. What appeared to be a settled case, assumed gargantuan proportions in the November 3 order of the Supreme Court in Orissa Lift Irrigation Corp. Ltd. Vs Sri Rabi Sankar Patro resulting in the on-going melee.
This case was a service matter issue arising out of the validity of engineering degrees offered in distance education mode by only four deemed universities in India. None of the other 120 plus deemed universities were before the SC as the larger issue was not about the deeming fiction which is a subject matter of another batch of cases pending before the apex court. The court was also not made fully aware of the conscious permission of the UGC to use the word ‘university’ pursuant to the liberty granted by the Supreme Court in Prem Chand Jain’s case. Also, the Supreme Court attempted to distinguish the present case from the Bharathidasan University case (2001) delivered by a coordinating bench.
In an attempt to bring clarity to the issue, some deemed universities and associations approached the SC with modification and impleading applications on various grounds including the fact that the interpreter of law allows the interpreter to inquire not into the subjective intent of the author, but rather the intent the author would have had, had he or she acted reasonably. This spirit of purposive construction highlighted by Aharon Barak in Purposive Interpretation in Law, (2007) was appreciated by the Supreme Court in New India Assurance Co. Ltd. vs Nusli Neville Wadia, (2008). The Supreme Court also appreciated the principles of Casus Omissus in UCO Bank vs Rajinder Lal Capoor (2008) which as per G P Singh’s Interpretation of Statutes, is an application of the general principle that a matter which should have been, but has not been provided for in a statute cannot be supplied by courts, as doing so will be legislation and not construction.
But all of these arguments advanced before the SC went in vain and the applications were dismissed making the November 3 order—which includes formation of a committee to frame new monitoring mechanism and regulations for deemed universities—effective without any modification. Under these circumstances, the following options in the interest of progressive policy making lie before the Centre and its statutory agencies such as UGC, AICTE, etc.
Action 1: As observed by the SC obiter dicta, the UGC Act of 1956 needs amendment to Section 23 to include deemed universities declared under Section 3 of the UGC Act to also use the word ‘university.’
Action 2: Approval from AICTE for engineering courses made mandatory only for those institutions that were not offering any technical education on the date of conferment of deemed university. This was distinguished by the SC in the present case and the AICTE Act rightly doesn’t include deemed universities in its definition of an institution. This was upheld by a coordinating bench of the Supreme Court in the Bharathidasan University case. A subordinate regulation to rope in all deemed universities not only needs an amendment of the AICTE Act but will also be a retrograde measure.
Action 3: The new committee must be guided by the proposed UGC Deemed Universities Graded Autonomy Regulations that is to be notified anytime soon. This is inherently designed to identify and encourage good performers and to take action against erring ones and aligns well the apex court’s recent directive to UGC.
Final recommendation: Amend to oxygenate and not mend to strangulate.
Dean, Planning and Development, SASTRA University