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Arif Mohammad Khan vs Kerala govt isn’t a new faceoff. Old cases show Governor wears two hats

Under UGC provisions, a search committee is appointed to find suitable candidates for the V-C post. Governors make their selection from among these names.

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Controversies surrounding the appointment of vice-chancellors in many Kerala universities have left us with some pertinent questions vis-à-vis the Governor’s role: To what extent can a Governor—who is the nominal head of a state—exercise his discretion, and where does he need to act on the aid and advice of his government.

The Kerala faceoff, however, isn’t new. West Bengal to Punjab, many court judgments have upheld the importance of University Grants Commission (UGC) guidelines while selecting a Vice-Chancellor (V-C).

It is a settled legal proposition that the Governor, as chancellor of a university, has the choice to act as per law. Kerala Governor Arif Mohammad Khan did the same by asking nine V-Cs to tender their resignations because those appointments were made after flouting UGC norms.

But V-Cs of eight universities approached the Kerala High Court and the matter was heard on 24 October 2022.  It challenged Khan’s communication—dated 23 October 2022—to each of them.  It was asserted that the communication, which asked them to resign from their respective positions, was beyond the Chancellor’s jurisdiction because the respective parent Acts applicable to the universities do not provide any power to the Chancellor to either declare the appointments of V-Cs to be illegal or to cancel the same. The Chancellor could not have acted as he did in these cases.

A similar case from APJ Abdul Kalam Technological University in Thiruvananthapuram (Dr Sreejith P.S Vs R. Rajasree M.S), decided on 21 October 2022, raised this issue in Supreme Court: Should V-C appointments be made as per prevailing UGC Regulations or under provisions of the University Act 2015, a state legislation?

The UGC Act of 1956 was enacted to make provisions for the coordination and determination of educational standards in universities, and mandated the establishment of a University Grants Commission for this purpose. As per Article 254 of the Constitution, if there is any conflict between the state and Union legislation,  Union law shall prevail to the extent the provision of the state legislation is repugnant. Therefore, UGC provisions have to be followed in Kerala as well.  Precisely why a two-judge Supreme Court bench quashed the V-C appointment at APJ Abdul Kalam Technological University in October, calling it “illegal” and “void ab initio” for overriding UGC norms. Any appointment at any university, without following procedure provided by UGC cannot be considered as an appointment in the eyes of the law and so is bound to be declared as “void-ab-initio”.

This controversy has reignited two important legal issues in addition to other concerns. First, whether the central law, which is the UGC Act, prevails over the state law, which is the law passed to establish and administer state universities. Second, the power of the Governor and its constitutional limits.


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State enactment Vs state law

State of West Bengal Vs Anindya Sundar Das, which was decided on 11 October 2022 brought a similar issue before the Supreme Court while challenging the order passed by the Calcutta High Court in September 2022. In this case, the Supreme Court held that being a subordinate legislation, UGC regulations become part of the UGC Act, which is passed by Parliament. It was further held that in case of any conflict between the state legislation and the central legislation, central legislation shall prevail by applying the rule/principle of repugnancy as enunciated in Article 254 of the Constitution.

This is because the subject “education” is in the Concurrent List (List III) of the Seventh Schedule of the Constitution. Therefore, any Vice-Chancellor appointment contrary to  UGC Regulations can be said to violate statutory provisions,  justifying  ‘quo warranto’—an order issued by the court to enquire into a person’s claim to a public office position.


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Chancellor’s role different from Governor’s

As per constitutional law, the Governor is supposed to act on the advice of his council of ministers. The pressing questions, however, are whether the Governor is necessarily required to act on their advice in all cases and if his role as chancellor is different from his role in the political arena.  It is also important to see whether the procedure for V-C appointment has political interference and if such influences compromise the merit of an institution’s executive head and its academic standards.

It is established in various judgments related to such cases that the role of university chancellor cannot be equated with functions assigned to the Governor of the state. There is no mention of assigning the role of chancellor to other government departments in Rules of Business of States, which determines departments role regarding work on behalf of the Governor. Therefore, the Governor is to act at his discretion as per provisions made for the appointment of V-C.

Under UGC provisions, a search committee is appointed to find suitable, qualified candidates for the post of V-C. The search process generally involves all important stakeholders, who make a list of appropriate candidates for the position. The Governor makes his selection from among these names.

The Governor has certain immunities too, but not absolute. This was illustrated by the Punjab and Haryana High Court in the matter of Hardwari Lal, Rohtak v. G.D. Tapase, Chandigarh and others.

“that no absolute immunity under Clause (1) of Article 361 of the Constitution is available to the Governor for the acts done in exercise of the power or in performance of the duties as Chancellor of the University,”

The High Court also observed that powers and duties exercised and performed by the Chancellor of the University as per statutory laws applicable upon any university have absolutely no relation to the performing of the powers and duties of the office of the Governor.

In light of the above discussion, it is clear that the Governor’s role as a statutory authority is different from his role as state head. The law gives two hats to one individual, but both are different.


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Journey ahead

It is a known fact that academia is not uninfluenced by politics. While internal issues and politics in such cases are not rare,  outside influences could have a cascading effect on students as well as the academic standard of the university. Therefore, stakeholders must avoid situations where students could be potentially used, and strive to protect their interests.

The destiny of an institution is determined through decisions taken by the executive head of that institution. Such appointments affect not just teaching standards, but also the course of a student’s life. The legislature has intentionally separated the role of chancellor and Governor, and this is exactly how it should be interpreted. In the case of V-C appointments, Governors only act in their capacity as chancellors. The powers exercised by them under statutes related to a university have absolutely no relation to their state duties. Such academic appointments should steer clear of politics, and there must be no compromise while making them.

The Kerala High Court, if anything, deserves appreciation for following legal principles and upholding decisions taken by the chancellor to appoint V-Cs under UGC provisions.

The author is Advocate-on-Record in the Supreme Court of India, and former assistant professor, National Law School of India University (NLSIU), Bangalore. She tweets @Swarupama. Views are personal. 

(Edited by Zoya Bhatti)

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