New Delhi: As the world grapples with Covid-19, students in India are battling it out in the Supreme Court against the 6 July notification issued by the University Grants Commission (UGC), mandating universities to conduct final-year exams by September end.
The notification has been challenged in the Supreme Court by a batch of petitions, including one by 31 students from universities across the country.
While students have opposed the move citing the health risk, a few state governments have also refused to conduct the exams due to the pandemic. However, UGC has remained adamant, asserting that its guidelines are mandatory in nature, and that degrees cannot be granted without conducting the exams.
As the Supreme Court reserved its verdict in the case Tuesday, here’s how the UGC is relying on the constitution to demand adherence to its notification, and how the state governments resisting the move.
Guidelines mandatory: UGC
The crux of UGC’s submission is that the universities across the country are bound to follow its guidelines and the state governments, therefore, cannot cancel the final-year exams.
To this end, it has cited Entry 66 of the Union list in the court. This entry mentions ‘Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions’.
Union list is one of the three lists on the 7th schedule of the Constitution. State list and Concurrent list are the other two.
According to Article 246, the central government has exclusive powers to make laws on the subjects in the Union list, while the state government can make laws on subjects in the State list.
As for the Concurrent list, both central and state governments can enact laws listed under it. But if there is a conflict between the laws, the central law will override the state law.
The enactment of the UGC Act 1956 is traced to Entry 66 of the Union list. Section 26 of this Act allows UGC to make regulations. It accordingly framed the “UGC Guidelines on Examinations and Academic Calendar for the Universities in view of Covid-19 pandemic and subsequent lockdown” in April.
Thereafter, in July, these guidelines were revised and the Universities were asked to compulsorily conduct final-year exams.
Relying on various regulations formed by it, UGC has therefore contended that universities across the country are bound to accept its guidelines.
“It is settled law that the regulations made by the UGC are binding on all universities, whether conventional or open, and its powers are very broad,” it has told the Supreme Court.
The UGC has further contended that the decisions taken by State governments to cancel final-year exams will therefore encroach on the Parliament’s power under Entry 66.
During the hearing Tuesday, the UGC also told the court that degrees cannot be granted to the students without examinations, and therefore, while exams can be delayed or postponed, they cannot be cancelled.
State govts rely on Covid, lack of infrastructure
On its part, the Maharashtra government has informed the Supreme Court that it was the State Disaster Management Authority that took the decision on 13 July to not conduct exams in the state amid the pandemic.
The Delhi government has told the court that on 11 July, the UT’s Deputy Chief Minister directed “all Delhi State Universities to cancel all written online and offline semester examinations including final year exams”, in the wake of Covid-19.
The government has also pointed out the accessibility issues in conducting online classes. It has submitted that “in Delhi’s State universities, best efforts were made to conduct online classes, but the reality of our digital divide is that online classes are not accessible equally by all”.
Due to such issues, it has asserted that “the students did not get the kind of preparation needed to attempt a full-fledged examination”.
During the hearing Tuesday, the West Bengal government also told the court that the state is bound by its constitutional duty to protect the health of the citizens. It pointed out the fact that south Bengal districts were affected by Cyclone Amphan and hence, most people, including students, have been evacuated.
The state has, therefore, submitted that neither physical exams are possible, nor online exams as both, the authorities and the students, lack digital infrastructure.
The Odisha government also relied on the increasing Covid cases to submit that it was not possible to conduct the exams.
‘States, universities not consulted’
In addition, the state governments have also submitted that the 6 July order was not a statutory document, but an executive order.
Both, Maharashtra and West Bengal government also cited Section 12 of the UGC Act.
Section 12 of the Act makes it the commission’s duty to take steps for promotion of university education, but it says that the UGC should do so “in consultation with the Universities or other bodies concerned”.
The state governments have now contended that neither did UGC consult any state governments nor any health or medical experts to understand the practical ground realities before issuing the order.
The students who have challenged the UGC order have also made a similar submission, asserting that failure to consult the universities or other relevant bodies makes the order illegal.
They have further pointed out that Section 22 of the UGC Act says that the “right of conferring or granting degrees shall be exercised only by a University”. They have therefore refuted UGC’s claim that it would not be able to provide degrees to students who don’t appear in the exams.
SC to consider validity of the order
The Supreme Court will now consider several such legal questions arising in the case.
For instance, in view of the submission made by the Maharashtra government, the court will decide whether the decision of the State Disaster Management Authority of Maharashtra can override UGC guidelines.
It will also look into the nature of the July notification – whether it is mandatory or not – and whether correct procedure was followed before issuing the guidelines.
The court will also examine the contention of the students, who have asserted that the UGC order violates their fundamental rights under Articles 14 and 21 of the Constitution, in light of the pandemic.
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