The regulatory role of the University Grants Commission involves forming and implementing rules and imposing penalties on violators. Sadly, it has failed in all these areas

The controversy over the Four Year Undergraduate Programme (FYUP) raises several important issues on university autonomy, academic freedom, the regulatory powers of the University Grants Commission and the power of the Central government to interfere in higher education in the country.

With the Human Resources Development Minister stating that Delhi University should follow the directive of the UGC and another Cabinet minister stating that the government, by withdrawing FYUP, fulfilled its election promise, the issue also assumed political overtones. Also, the student wing of the Bharatiya Janata Party, the Akhil Bharatiya Vidyarthi Parishad, demanded that FYUP should be withdrawn.

According to the vice-chancellor of DU, the UGC had approved FYUP in 2012. The then HRD Minister of State stated that the change to FYUP was approved by the previous government after due deliberation. Therefore, the UGC’s stand — that FYUP should be withdrawn — is not the regulatory body’s stand but represents the position of the new ruling party, which stated that FYUP is against the National Policy on Education, 1986.

That the UGC is incapable of regulation is evident from the fact that many deemed and private universities are illegally collecting huge capitation fees for admission

Defending itself, the UGC stated that proper procedures were not followed by DU, that the Delhi University Act was not amended to empower DU to introduce FYUP, and that the consent of the Visitor (the President) was not obtained. These are clearly mere afterthoughts of the body to justify its position.

Through their actions, the UGC and the Central government managed to put the entire higher education system in jeopardy, compromising the interests of students and the academic community. This issue raises a fundamental question regarding the extent to which the UGC is independent as a regulator vis-à-vis the government and the extent to which governments can control the higher education system in India.

Autonomy and interference

University autonomy and academic freedom are twin concepts that have been well-accepted in the context of higher education as part of the fundamental right to freedom of speech and expression. Justice Frankfurter of the U.S. Supreme Court, as early as in 1957, had stated in the context of university autonomy in Sweezy’s case that a university has the right to decide what to teach, who to teach, how to teach and who to admit for teaching as part of the first amendment: the right to freedom of speech and expression. Therefore, in the West these principles enabled universities to have maximum autonomy in academic matters, including courses taught and degrees offered.

These universities have also been able to maintain supremacy in global rankings as they frequently introduce innovative courses. In 1947, these principles also found acceptance in the Indian Supreme Court when the eleven-judge Constitutional Bench in the T.M.A. Pai case quoted with approval the report of the Dr. Radhakrishnan Committee (The UGC Committee), which stated that universities should be free from governmental interference. It said: “…Institutions of higher learning controlled and managed by governmental agencies act like mercenaries, promote the political purposes of the state, make them acceptable to an increasing number of their population and supply them with the weapons they need. We must resist, in the interests of our own democracy, the trend towards the governmental domination of the educational process.”

The Central government enacted the UGC Act in 1956 to to determine and maintain standards of teaching and research in universities. The UGC was also constituted to provide funds to institutions of higher education. At the time of enacting the Act there were very few universities — only about 58 — compared to the number today. Most of them were public universities, either owned by the Centre or by States. There were no private and deemed universities; therefore there was no requirement of a regulatory body. Later, as the number of private universities and the conferment of deemed-to-be university status to many educational institutions grew, the number of universities in India multiplied manifold. This necessitated the need for a regulator.

Failures of the UGC

However, the UGC, which holds this responsibility, has miserably failed in its role. This is because there are about 637 universities today — 42 are Central universities, 300 are State universities, 165 are private universities and 130 are deemed universities. The regulatory role of the UGC varies among these categories — it plays a more limited role in regulating public universities than private universities. However, deemed universities are under the direct control of the UGC, being conferred with university status on the recommendation of the regulatory body.

The regulatory role of the UGC involves making rules, implementing and enforcing them, and imposing penalties on violators. Sadly, the UGC has clearly failed in all these areas. For instance, under the UGC Act, all the regulations framed by the body require Parliamentary approval. Recently, in the Association of Private Management Institutions case, the Supreme Court struck down an AICTE (All Indian Council of Technical Education) regulation on the ground that it was not placed before the Parliament as mandated by the AICTE Act. There are many other such UGC regulations today which can be challenged on the same ground.

Implementing regulations regarding, among others, courses taught, qualifications of teachers and conditions of service, infrastructure, admission of students, collection of fees and academic collaborations in 637 universities is a herculean task, especially if the onus lies with one regulatory body. That the UGC is incapable of discharging this function is evident from the fact that many deemed and private universities today are illegally collecting huge capitation fees for admission, especially in medical and engineering colleges. The UGC’s power to punish such universities is minimal and without proper procedure.

To what extent the UGC can coordinate and determine standards in universities is not evident. For instance, does it also include the power to prescribe what courses should be taught in universities and the power to retrospectively withdraw a course? The UGC must follow guidelines when it directs a university to withdraw a particular course. Such measures should involve application of the principles of natural justice. There is a need to revisit the functioning of the UGC and also a need to create separate institutions to discharge the regulatory function in the three key areas of rule making, supervision and enforcement. This assumes importance in the context of the proposal of the new government to initiate the Foreign Universities Bill as the first reform in higher education. Foreign universities would want to enter a stable higher education environment, not operate upon a 28-year-old, pre-globalisation education policy.

(A. Francis Julian is a senior advocate in the Supreme Court and adjunct professor of Law, O.P. Jindal Global University.)

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