Constitutionalising the Administration of Higher Educational Institutions – An Important Supreme Court Decision
This article was first published on Kafila.
The Supreme Court bench comprising of Justice Chelameshwar and Justice Sapre delivered a judgment, which will have a widespread impact on governance of higher education in India – Dr. Janet Jayapaul v. SRM University, in continuation of their “penchant” for education, recently reflected in Haryana Panchayati Rajdecision, delivered by this very bench.
By holding that a deemed university is ‘state’ under Article 12 of the Constitution of India, courts have opened the doors for application of even ‘vertical’ fundamental rights to these institutions. For an outsider to the practice of law, it may sound like an issue of mere technicality and semantics wrapped up in legal jargon. However, this case has a great potential in playing a very important role in infusing constitutional values in administration of these educational institutions. The issues such as gender discrimination, curbing of freedom of speech, right to privacy, etc. within the college environment are no more merely questions of propriety and culture, but also amenable to a claim in a court of law. Therefore, the outcome of this semantic exercise is very real, not just for the purposes of immediate case that the court was involved with, but for long-term educational reform in India.Facts of the Case
The appellant in this case was a professor teaching in the SRM University. He challenged the illegality of a notice served to him relieving him from his services. Madras High Court dismissed a writ petition filed against SRM University holding that a writ petition under Article 226 cannot be filed against a deemed university as it is not ‘state’. From this decision of Madras High Court, an appeal was filed in the Supreme Court. The Supreme Court held that a writ petition may be filed against SRM University and set aside the High Court’s judgment as SRM University is a “deemed university” declared by the Central Government under the UGC Act, 1956.
The decision: Deemed University is an authority under Art.226, and ‘state’ under Art.12
This writ petition was challenged on the grounds that the University is “neither a State nor an authority within the meaning of Article 12 of the Constitution of India and hence it cannot be subjected to writ jurisdiction of the High Court under Article 226”. It seems that the decision of the high court is anyway misplaced and does not follow the existing authorities on this issue of law.
This was also reflected in the expert opinion submitted by Harish Salve, where is stated,
“While deciding such issue is always to test as to whether the concerned body is formed for discharging any ‘Public function’ or ‘Public duty’ and if so, whether it is actually engaged in any public function or/and performing any such duty.” He further clarified that a body need be a state or its instrumentality for being subjected to writ jurisdiction under Article 226: “the expression ‘any person or authority’ used in Article 226 are not confined only to statutory authorities and instrumentalities of the State but may in appropriate case include any other person or body performing ‘public function/duty’.”
This submission of Salve also confirms with the earlier decisions of the Supreme Court. In the case of Andi Mukta Sadguru. v. V.R. Rudani, which is also extensively cited by the court in this case, the court had held,
“The term “authority” used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non- fundamental rights. The words “any person or authority” used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State”. (emphasis added)
The crux of the judgment lies in Paragraph 22. The court holds that Deemed University is “state” within the meaning of Article 12, though the issue in front of the court did not require it to decide if the university is a “state” under Article12. The court had already concluded that ‘providing education’ is a ‘public function’ and, that SRM University is performing that public function. The combined effect of these two findings is that the case already satisfied the requirements for maintainability of a writ petition under Article 226 of the Constitution. The additional finding of the court that SRM University is “state” has wider impacts.
The impact of this decision
According to the decision in Andi Mukta, it seems that since it is “state” under Article 12, a writ petition against Deemed University directly to the Supreme Court should also be maintainable. However, the relevance of the question – whether a deemed University qualifies to be ‘state’ – is not just relevant for the procedural issues such which court to approach. It is also relevant to determine if a body can violate certain fundamental rights (or against whom can the fundamental rights be claimed).
In our constitutional scheme, essentially, there are two kinds of fundamental rights. This distinction is made on the basis of whom it can be claimed against (or who can violate it). This distinction is apparent in the way fundamental rights are worded. For instance, Art.15(2) states, “No citizen shall be…subject to…”. However, Art.14 is worded as such: “State shall not…”. This means that while the second kind of fundamental rights can only be claimed against State (vertical rights), the first kind of fundamental rights can also be claimed against private individuals (horizontal rights). If court had held only that a deemed university is an authority against which a writ petition can be filed under Art.226, the horizontal rights would be enforceable against a deemed university, but not vertical rights. Since the court held that a deemed university is also ‘state’, even the vertical rights will be applicable. This means that several doctrines under Art.14 such as that of reasonable classification (i.e. in any purported action of inequality, there should be intelligible differentia for classification, and it should have rational nexus with the object) and arbitrariness will now be applicable to deemed university. It also means that other vertical fundamental rights, such as rights under Article 19 including freedom of speech can now be claimed against a deemed university.
The contours of these legal claims against deemed universities will depend on how courts decide the future challenges arising due to this holding. However, it can only be hoped that this judgment will convert certain questions of propriety in the governance of higher educational institutions into constitutional challenges.