‘UNIVERSITIES’ UNDER THE CONSTITUTION
By Dr. Justice A. K. RAJAN
Definition for Universities
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Tomlin’s law dictionary defines University as “a place where all kinds of literature are taught”. University is a corporation aggregate – Aggregation of corporations – The corporations are usually schools or colleges. It is a body incorporated for the purpose of learning, with various endowments and principles. Such bodies were anciently founded by Papal Bull or Charter, later by Royal charter. Oxford dictionary defines university as a “High level educational institutions, in which students study for research and academic research is done”. The word is a derivative from the Latin word, ‘Universite’ – meaning “the whole”. According to Ramanatha Iyer Law Lexican, it is a “A corporation of teachers or assembly of learned men or colleges for teaching higher branches of learning; and having power to confer degrees”. A university differs from a college in that it is usually larger, has a broader curriculum and offers graduate and professional degrees in addition to undergraduate degrees.
History of origin of Universities
In India, though many universities were established even 2500 years earlier like Nalanda, they were not similar to the modern day universities. The earliest Western institution that can be called a university was a famous medical school that arose at Salerno, Italy, in the 9th century and drew students from all over Europe. The first true university was founded at Bologna late in the 11th century. University of Paris founded between 1150 and 1170.
The first modern university was that of Halle, founded by Lutherans in 1694. These early universities were corporations of students and masters, and they received their Charters from Popes, Emperors and Kings. The modern universities were established in India in the year 1857. Three universities were established in the three metropolitan cities, Calcutta, Bombay and Madras. All the universities were established by a specific law made by the legislatures.
In a unitary country, the legislative body will have the power to make any law on any subject. In most of the unitary countries, the constitution does not regulate or restrict the power of law making on any subject. In a federal country like India, where the law making power is distributed between the component units like provinces or State and the federal or Central governments, the field of legislation is demarcated by the constitution. Certain subjects are allotted exclusively to federal government and some subjects are allotted to the component units. Over some of the subjects, both federal as well as provincial state legislatures will have the power to make laws. This is to ensure separation of powers between the provinces and the federal government. It is also to prevent conflict of laws. Therefore. the constitution specifically defines and demarcates the powers of the legislative bodies. All the federal constitution like Canada, Australia, India and other nations do ensure the system of separation of powers through the constitution.
Subjects on which the Centre and States can make laws listed in Schedule VII of the Constitution of India
The Indian constitution ensures the separation of power in Part XI Chapter I (Art.245 to 255). The VII schedule contains the subject matters allotted to central government in List I, to state government in List II and the subject matters over which both the centre and state can make law is specified in List III, which are respectively called Union List, State List and Concurrent list. Thus, the Parliament and state legislatures can make law on the subject matters specified by the Constitution in the entries specified in the VII schedule. If the power is not relatable to any of the entries therein, the legislative bodies cannot make law on the subject. If such a law is made, it will be ultra vires the constitution and therefore, will be void and ‘non-est’ in law.
Cases arose due to the controversies between the laws of Centre and States
Inspite of such definite demarcation of powers, at times, dispute arises due to conflict of laws made by the State legislatures and Parliament. As early as 1951 [State of Bombay vs.
Balsara (AIR 1951 SC 318)], such a dispute went up to Supreme Court. In that case, the Supreme Court held categorically that while determining the competency of the legislatures, the entries of different lists in the 7th schedule should be read together without giving a narrow meaning to any of them. The Supreme Court reiterated in 1963 in Ramakrishna Rai vs. State of Bihar (AIR 1963 SC 1667) when the argument was advanced that certain entries must be given more wider interpretation vis-a-vis other entries, the Supreme Court rejecting that contention, held that there can be no reason to give a broader interpretation to one power than the other. Further, in State of Bombay vs. Narottom Das Getha Bhai (IR 1951 SC 69), the Supreme Court held that when one item is general and another is specific, the latter will exclude the former. In another case, APSWI Society vs. Labour court AIR 1987 SC 182, the Supreme Court held that in case of conflict between entries in List I and List II, the question is not of repugnancy but of competence.
Widest meaning could not be attributed for any entry in the three lists of Schedule VII
From the above axiomatic principles laid down by the Supreme Court, it can be safely concluded that all the entries found in the 3 lists in VIIth schedule are to be given the widest meaning. Entry in List I cannot be given a wider meaning than an entry in List II or vice versa. Similarly, an entry in List III cannot be interpreted to widen its power when there are specific restrictions found in List I or List II. Therefore, only that legislative body, which has been conferred with the power to make law on a subject by the constitution, can make law on the subject matter. Otherwise, the law made by any legislative body would be void and untra vires the constitution.
What is said in the Constitution about the Universities
In the Constitution of India, the word University is found in the following three entries :
Entry 44 – List I – Incorporation, regulation and winding up of corporations, whether trading or not, with objects not confined to one State, but not including universities.
Entry 32 – List II – Incorporation, regulation and winding up of corporations, other than those specified in List I, and universities; unincorporated trading, literacy, scientific, religious and other societies and associations, co-operative societies.
Entry 25 – List III – Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.
How the subject Education has been taken from State List to Common List
Entry 25 was brought into List III only by 42nd amendment in the year 1976 during emergency. The 42nd Amendment was passed without any discussion in Parliament. Few persons know the contents of the 42nd Amendment. Prior to that, “Education” was found in Entry 11 of List II. That is, all matters relating to education, (subject to Entries 63, 64, 65 and 66 of List I) were within the legislative competency of the States.
Centre has no powers to enact a law to create or wind up a new University
Entry 44 in List I means that power to make law relating to “incorporation, regulation, winding up of corporations” are conferred on the Parliament. This entry specifically excludes “universities”. That is, incorporation, regulation and winding up of universities are not included in this entry. The Entry 32 in List II relates to “incorporation, regulation and winding up of corporations (other than those specified in List I) and universities. That is “incorporation, regulation and winding up” of universities are within the competence of state legislatures. Therefore, in so far as universities are concerned, power of incorporation, regulation and winding up is conferred only on state legislatures. Reading entry 44 (list I) and entry 32 (list II) together, makes it clear that incorporation, regulation and winding up of universities are conferred only on the State and that power has been specifically excluded from the union or central government. That is, central government and Parliament has no power to make law on matters relating to incorporation, regulation and winding up of universities. This power has been specifically conferred only on the state legislatures. That is, Parliament cannot make law incorporating or regulating or winding up any university.
10. The effect of transferring the subject of education from List II to III by 42nd amendment would mean that both the state and Parliament will have power to make law relating to education including technical education, medical education and universities. But the power of the state legislatures on this subject is subjected to the entries 63, 64, 65 and 66 of List I. Here, the word “education including universities” does not include the power to make law relating to “incorporation, regulation or winding up” of universities. Since these aspects have been specifically covered under entry 44, List I and entry 32, List II, these aspects are excluded from entry 25 List III. Therefore, central government have no power to incorporate, regulate or winding up of universities as per the scheme of distribution of legislative powers.
Why IITs, IIMs were given status of Deemed Universities instead of declaring them as Universities.
Incorporation : The University Grants Commission Act, 1956 in Section 3 provides that the Government of India can, on the recommendation of UGC, declare any institution as “Deemed to be a University”. That is because central government has no power to incorporate any university. Incorporation means an act of forming or creating, it is nothing but establishment. Therefore, it is more probable that the central government was aware of the fact that it cannot establish an university and therefore, by section 3 of UGC Act, it conferred the status of “Deemed to be a University” on certain institutions like IIT.
Regulation : The word regulation means ‘a rule or order for management’ – ‘a rule or directive made and maintained by an authority’. To regulate means to control or supervise by means of rules and regulations. Management means administration, control, supervision, guidance etc.
Winding up means ‘closing’ any institution or organization.
Therefore, as per the provisions of the constitution, the federal or union government have no power to make law on the above said aspects.
Proposed National Commission for Higher Education and Research
The National Commission for Higher Education and Research Bill, 2010 There is a proposal to introduce the above Bill in Parliament, which contains, inter-alia, the following provisions :
(1) Section 2 make the Act applicable to all higher educational institutions (other than agricultural and medical institutions).
(2) Section 3(g) defines “Central University” as a university promoted and established under a Central Act.
(3) Section 3(u) provides that higher educational institutions includes universities etc.Section 3(ai) defines State university as one established under a State Act. Section 3(aj) defines university as university established by a central Act or State Act including deemed to be a University.
(4) Section 4 provides that a National Commission for Higher Education and Research shall be established.
(5) Under Section 17, a ‘collegium’ is to be established with wide powers.
(6) Section 20 relates to the preparation of National Registry of persons eligible and qualified for appointment as Vice Chancellors or head of institution of National importance.
(7) Section 24 specifies the powers and functions of the Commission, which includes, inter-alia, prescribing norms for transparent, efficient and accountable governance of any university; prescribing minimum eligibility conditions for appointment of Vice-Chancellor of any university; prescribing norms and principles for allocation of grants for a State University.
(8) Section 26 empowers the Commission to recommend, a panel of five names from National Registry maintained under this Act, for appointment to the post of Vice Chancellor of a State University.
(9) Section 26(4) – No persons shall be eligible for appointment as Vice Chancellor of any University unless his name is included in the National Registry for appointment as Vice-chancellor.
(10) As per Section 32, no university, empowered by law to award any degree or diploma established after this act has come into force, shall commence its first academic operation unless it is authorized in accordance with such norms specified by regulations.
(11) Under Section 36, The commission can revoke the authorization for failure to comply with the regulations.
(12) Under Section 41, the right to confer degrees or diplomas shall be exercised only by an institution or university authorized under this Act.
The States will not have powers to appoint Vice-Chancellors for Universities created by States
The Act applies to all institutions including State Universities and Deemed universities (except institutions of ‘agricultural and medical education’), which confers degrees or diplomas. The power of appointment of VCs is taken away from the States/Governors; The Appointing Authority has no power to choose the VC. The State government can only select one from the “five names” given by the commission.
Shifting of “Education” from Concurrent List to Central list without any Constitutional Amendment
Even a State University, e.g. Madras University, can be wound up. No person shall be appointed as VC of any State university unless his name was found in the list of names furnished by the Registry. That has the effect of shifting the entry of “Education” from List III to List I without actually amending the Constitution. This is contrary to the principle of State Autonomy. It has effect of making India as a Unitary State.
Supreme Court may not approve
this bill
The above provisions definitely falls within the meaning of incorporation, regulation and winding up of the universities. It is difficult to comprehend how the Bill can be introduced in Parliament and made as a law. The provisions contained in the Bill militates against the express provisions of the constitution and the concept of separation of powers and the doctrine of immunity of instrumentality. The Bill lacks legislative competency. The Bill, if made as law, will not get the approval from the Hon’ble Supreme Court and the entire Act may even be struck down by the Supreme Court.
The National Commission for Higher Education and Research Bill, 2010 lacks legislative competency. The Bill, if made as law, will not get the approval from the Hon’ble Supreme Court and the entire Act may even be struck down by the Supreme Court.
(Courtesy: The Rising Sun -
14th March,2010) / Posted on May, 2010
Reposted from The Modern Rationalist (http://www.modernrationalist.com/2010/may/page11.html)
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