Live Law | Deepak Kumar | March 5, 2017 | Opinion |
As the human body needs a proper meal for nourishment in the same way education is needed for the nourishment of human mind.Education is thesole factor to the difference between animals and human. Historically,education in India only restricted to a certain caste that dominates the majority of the population. Alas, till the date things are more or less same. It is highly unfortunate that almost seven decades has come to complete after the enforcement of Indian Constitution but education has not become the national interest subject under the Constitution.*Indian Education Inclusive or Exclusive *In India, there are various kinds of boards and universities exist for primary as well as higher education level i.e. central, state,minorities and private or self-financing to established segregation or water type compartment among citizens. On the one hand, in the schooling system, there are International boards, ICSE board, CBSE board, states boards, minorities’ boards like Madarsa and Gurukul. Among all Kendriya Vidyalaya is the unique schooling system which is available only for the central government employees’ children. On the other hand in higher education, there are institute of national importance, IITs, IIMs AIIMs,NLUs etc., the central universities, the state universities, minorities’ universities, deemed universities and the private or self-financed universities.The State segregates the citizens on the various grounds in education but the “language” is the most contested ground of all. For example almost all states boards in India; mandate the medium of education intheir local language rather than English. The result of this prohibition of majority of the students lose the opportunity to entering in the mainstream professional degrees for example IITs, IIMS, IIMs, NLUs, and even these students cannot make it to the merit list just because of the useof English in the top universities in India like Delhi University. It remains a sociological fact that through English one can be getting better education and jobs because it opens the doors of manyopportunities. Amartya Sen argued that “/knowing English opens all sortsof doors in India, even to someone who may not be particularly qualifiedotherwise [/Dreze, Jean and Sen, A. (2013)]To control and regulate whole education system in India, there is aUniversity Grant Commission (hereafter UGC) which comes under thecentral government, and the UGC is doing whatever the Central governmentwants to do. There is no single board for the school as well as thehigher education level in India. The primary education is the foundationfor the higher education and from primary level the State startsits/segregation’s policy/ through various modes. The condition ofgovernment schools is miserable and become to commodity that canpurchasable. The condition of the higher education is more or less same.The scope of the public universities is shrinking day by day due to neweconomic policies of the State. The education budget is lesser thanother things because the State does not believe that education is not anecessary for the development of the nation. For analysis the above situations, the questions arises here that who is responsible to makeeducation a commodity, Constitution, industry or the State? Thesequestions arise yet again in light of the controversy over the UGC notification of May 2016, and its implementation in various universitiessuch as Jawaharlal Nehru University and Jadavpur University among others?The UGC last year in May 2016 passed a Regulation which has become controversial and its impact has been perceived as drastically negativeon the researcher’s freedom to craft research areas as well as for undermining the autonomy of the universities and institutions. I suggestthat that through the2016 UGCs regulation the State’s intention is to prohibit the down trodden peoples from acquiring the M.Phil and Ph.Ddegree and become the part of the mainstream. We may well ask why is theUGC through the new notification trying to cut the huge number of theseats of M.Phil and Ph.D programme. Do the new regulations signal that onthe one hand the State curbs the scope of public university to restrictthe access of the down trodden communities candidates from higher education and on the other hand, the State promotes private education?Do we fully understand the effect of 5^th May, 2016 UGC’s Notificationon social justice which is guaranteed by the Constitutions of India?The preamble of the Indian Constitution guarantee to its citizen thatthe State shall be provide justice (social, economic and political) and equality of status and opportunity to all irrespective to anything.Article 38 of the Indian Constitution is direct to the State to secure social order for the promotion of the welfare of the people. Art 38(1)stated that /“The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform allthe institutions of the national life/.Article 38(2) stated that /“ The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, and not only amongst individuals but also amongst groups of peoples residing indifferent areas or engaged in different vocations./That means it is the fundamental obligation on the State to make such laws accordance with the sprite of the Constitution which ensure justice and opportunity to all, but the State fails to fulfil its positive duty towards the Constitution as well as its citizen. The State on the one hand promotes and established the private education and on the otherhand shrinks the scope of public education due to reduction in funding,by not recruiting faculty and now reducing or freezing intake in theM.Phil/Ph.D programme.These disadvantage groups are neither able to /“purchase primary”/education from private schools nor are they able to access publicuniversity due to limited seats available. The State is under threat from the voices raises by these socially and educationally backwardsstudents’ communities after acquiring the higher education from public universities. Therefore, it is the last weapon in the hand of the State to stop marginalised populations for not entering in the higher education. This may be the reason behind the low budget of the education in India that in the State’s priorities the concept of spending money on education is a concept of /waste of money/. To acquire the higher education in private institutions is not less than a day-dream for the majority of the population (historically disadvantage groups i.e. SC/ST/OBC/women and minorities) and the last hope left in their hand that is public universities which is equal to the private education.
*Differences between 2009 and 2016 UGC’s Regulation*
*Eligibility Criteria for M.Phil and Ph.D*
The UGC Regulation in 2009 allows the Universities to retain their autonomy in the matter relating to the academic activities. Section 6 ofthe 2009 UGC’s Notification allows all Universities and others Institutions;/“the institutions shall lay down the criteria for the faculty to be recognised as Research Supervisor for both M.Phil and Ph.D Programmes/.”Section 7 of the 2009 Notification allows the Universities and other Institutions to “/lay down and decide on annual basis, a predeterminedand manageable numbers of M.Phil and Doctoral students depending on the number of the available eligible Faculty Supervisors. A Supervisor shallnot have, at any given point of time, more than Eight Ph.D Scholars and Five M.Phil Scholars/.”Section 9 (i) of the 2009 Notification allows to all universities and other Institutions to admit the M.Phil and Doctoral admission through an/Entrance Test/ conducted at the individual level of the Institution.Section 9 (ii) allows to take /the interview/ at the Institutionslevel.But on the other hand in 2016 the UGC dilute its progressive approach after imposition the new guidelines for the Entrance Test under section 5 of the regulation:/“5.4.1 An Entrance Test shall be qualifying with qualifying marks as50%. The syllabus of the Entrance Test shall consist of 50% of research methodology and 50% shall be subject specific. /And 5.4.2 has provisionfor/interview/ viva voce.” /Section 10 of the UGC 2009 Notifications allows the intergraded M.Phil-Ph.D Programme i.e. “/The Admission to the Ph.D Programme would be either directly or through M.Phil Programme./Contrast this with the 2016 Notification.In 2016, the UGC does notmention a single word about the intergraded programme thereby indicating that the UGC totally undermines this unique programme through aRegulation. Unlike the earlier Regulation, UGC 2016 alters the entrance test in a manner that will decidedly exclude the marginalised—most students, especially in marginalised areas, are not taught methodology. In fact, UGC 2009 cherished the hope that methodology will be taught atthe MPhil level, now it is expected that MA students should be wellversed in methods to qualify for an MPhil! Even more insidious is that the provision for viva, which the JNU administration first insisted was to 100%, and following protests supposedly changed it to 20%, with 80%for the written marks, makes a mockery of the question of access to higher education. For, if a candidate does not qualify an OMR test, the candidate won’t be able to write the descriptive examination. This interpretation by JNU — an alteration of the admission policy—that has not been approved by the Academic Council yet, has been perceived by students as a potent way by which students, especially those marginalised, will not be able to qualify even if there were “vacancies”.
*On the Reservation*
Section 3 the Central Educational Institutions (Reservation in Admission) Act 2006, allows the reservation in the Central Educational Institution.Section 11 of the UGC in 2009 clearly mentions that /theUniversities and other institutions will pay due attention to the national/State Reservation Policy/. That means the UGC talks about particularly CEI Act 2006 which is undemocratically ended by the 2016Notification by limited or cut the seats at large scale.The Act mentions that out of the annual existing permitted strength in each branch of thestudy or faculty, fifteen per cent seats shall be reserved for the SCs,Section 3 (i), seven and one-half per cent for the STs, Section 3(ii),and twenty-seven per cent for the OBCs, Section 3(iii).Section 5 of theCEI Act stated the mandatory provision for the implementation of the reservation policy which mentions under section 3 of the Act.On the contrary, the 2016 Regulation mention that the national level reservation policy will applicable in the admission process but thequestion arise on the intention of the State that neither the vacancies of Faculty fulfil nor the seats available for the research then how canthe object of CEI Act 2006 will be fulfil? Is there not a conflict between CEI Act and UGC’s 2009 and 2016 regulations? The UGC 2009regulation makes mandatory provision to extent the existing seats/vacancies with the SC/ST/OBCs reservation but on the contrary 2016regulation curb the seats/vacancies for the M.Phil and Ph.D. If the seats are not available then what will be benefit of CEI Act 2006?
*On Choice/Interest of the Researcher*
The 2009 UGC’s Notification allows great autonomy both the Faculty Supervisor as well as the student as mentions in section 12 of the Notification that “/The allocation of the supervisor for a selected student shall be decided by the Department in a formal manner depending on the number of the student per faculty member, *_the available specialization among the faculty supervisors_*_,_ and the *_research interest of the student as indicated during interview by the student._*The allotment/allocation of the supervisor shall not be left to the individual student or teacher./The choice/interest of the researcher must not be compromise in research. For example if in particular center/department, the particular Faculty who has expert in particular subject but has already maximum candidate for supervision for next 4-6 years, then what will happen withnew researcher who wants to research under /that /particular supervisor?In that situation not only the student deprived her research which shehas interest but the ultimate loss goes to the nation. It will be the pathetic condition if the plants will not get proper water and thegardener hope for the fruits. It is absolutely not justified and itleads to injustice for the future of research in India. If the 2016UGC’s regulation applicable the essence of the research in India will be compromised.
*Is UGC’s Notification Arbitrary and Unreasonable?*
The 5th May, 2016, the UGC make a notification <http://www.sliet.net.in/pdf/2016/UGCNOTIFICATION05MAY2016.pdf> which
says in section 6.5:
/A Research Supervisor/Co-supervisor who is a Professor, at any given point of time, cannot guide more than three (3) M.Phil and Eight (8)Ph.D. scholars. An Associate Professor as Research Supervisor can guideup to a maximum of two (2) M.Phil and six (6) Ph.D. scholars and anAssistant Professor as Research Supervisor can guide up to a maximum of one (1) M.Phil and four (4) Ph.D. scholars./It is statutory power of the UGC to make any rule/regulation for the academic purpose under section 26, but the question arises that can theUGC has sole power within itself or it can consult with universities.Section 12 of the UGC Act, 1956, that /It shall be the general duty of the Commission to take, in consultation with the Universities or other bodies concerned, all such steps as itmay think fit for the promotion and co-ordination of University education and for the determination and maintenance of standards ofteaching, examination and research in Universities, and for the purpose of performing its functions under this Act./Though, the UGC has expert members but how can the UGC free from influence of the central government? It is serious question which required answer from the UGC as well as the Government.In a democratic country every single decision which affects the public at large even the future of the country must be taken by the democratic process. It is the duty of the State to secure justice and make every single stake holder directly or indirectly in the process of any decision. Neither the State nor the UGC have absolute power do whatever they want to do. It was the UGC’s duty to consult with the universities before taking such step.
*Judicial Approach Regarding UGC’s Rules/Regulation/Notification *
In */Ajesh V.V. Varapuzha House vs The University Grants Commission<https://indiankanoon.org/doc/113619130/>/*/, /the Supreme Court of India held that the UGC has statutory power to frame any Rules and Regulation under section 26 of the UGC Act, 1956. The Court held in para21 that “/If any interference is made to the guidelines issued by theUniversity, it will amount to dilution of the 2009 Regulations which isnot permissible and the Courts cannot take a different view from whathas already been stated”./The Supreme Court in*/P.Suseela and Others v. University Grants Commission and Others <https://indiankanoon.org/doc/68173382/> /*heldthat the regulations made by UGC have no retrospective effect:/“14. The other interesting argument made is that such regulationsshould not be given retrospective effect so as to prejudicially affect the interests of any person to whom such regulation may be applicable.In order to appreciate this contention, it is necessary to distinguish between an existing right and a vested right.”/The apex court apply its hands offs approach in */University Grant Commission & Anr v Neha Anil Bobde (Gadekar)<https://indiankanoon.org/doc/187384523/>/* CIVIL Appeal No. 8355 of 2013.
/“29. We are of the view that,<http://www.ugc.ac.in/pdfnews/6370531_Supreme-Court-judgement-UGC-NET-exam.pdf>in academic matters, unless there is a clear violation of statutoryprovisions, the Regulations or the Notification issued, the Courts shallkeep their hands off since those issues fall within the domain of theexperts. This Court in University of Mysore vs. C.D.Govinda Rao, AIR1965 SC 491, Tariq Islam vs. AligarhMuslim University (2001) 8 SCC 546and Rajbir SinghDalal vs. Chaudhary Devi Lal University (2008) 9 SCC284, has taken the view that the Court shall not generally sit in appealover the opinion expressed by expert academic bodies and normally it iswise and safe for the Courts to leave the decision of academic expertswho are more familiar with the problem they face, than the Courtsgenerally are. _UGC as an expert body has been entrusted with the dutyto take steps as it may think fit for the determination and maintenance of standards of teaching, examination and research in the University._For attaining the said standards, it is open to the UGC to lay down any“qualifying criteria”, which has a rational nexus to the object to beachieved, that is for maintenance of standards of teaching, examination and research.”/* *
*The effect of UGC Notification on JNU*
JNU administration adopts UGC’s 5^th May, 2016 Regulation in its 142^nd Academic Council Meeting with undemocratic manner and not consulted withthe whole member of the AC Meeting. The JNU administration did not follows the JNU Act while trying to implement the UGC’s 2016 Regulation.In 141 Academic Council meeting the UGC’s Regulation not discussed in democratic manner by the JNU Administration and neither this Regulation circulated to the Schools and Centres for comments and suggestions before adaptation of the Regulation.There are two highest level committees in JNU, first Academic Council(Academic Body of the University), and the second Executive Council(Executive Body of the University). The Academic Council has two parts (A and B), part A include the student representative body with the Faculties, who elect by the election andhave statuary rights under the JNU Constitution to participate in AC Meetings when the policy matter discuss about admission and reservation at the university level. The part B of the AC includes the Faculty members and representatives of the elected members of the JNTA.On the other the student body have no right when the matter discuss relating to(a) faculty positions, requirement, conditions of service and academic freedom; (b) the issue relating to actual process of evaluating theacademic preference and merit of the students.The JNU administrations deliberately not discussed the Regulation andeven not clear how to implement the regulation. Pratiksha Baxi stated,it is the unique feature of the JUN student body that represent indecision making process. Baxi stated:<https://kafila.online/2017/02/21/the-struggle-to-save-the-jnu-act-the-student-standing-counsels-response-to-ugc-2016-pratiksha-baxi/>/Surely it is a matter of pride that students have this statutory rightand exercise their academic freedom without fear or threat. Very few universities, if any, concede such rights to students and we, as faculty are privileged to learn from our students how to make our university aninclusive, equal and dignified experience. This is an on-going process—and we have much to learn from our institutional history. /In the JNU Act, the AC only has rights to make Ordinance on matters relating to academic and the EC (Executive Committee) must approved the Ordinance which is deliberately decision taken by the AC. The AC alsohas a power to requisition an AC meeting if the EC passed an Ordinance beyond the JNU Constitution, and the Visitor have the power to annul EC proceedings.Baxi stated that how undemocratically the administration passed the
/In the 142 AC meeting, the minutes of the 141 meeting were passed amidst protests by members of the Academic Council. From accounts ofcolleagues in the AC, we learnt that the minutes were cursorily calledout, as “passed, passed”. Students who protested were suspended andteachers who were issued a collective show cause notice, following the JNUTA’s call for a one//‑//day strike. The show cause notice raised thespectre of CCS Rules, and five teachers were subsequently threatened with enquiries for making speeches on the adverse impact of the UGC Actevoking an inapplicable 20m rule, which proscribes where certain kinds of protests can take place<https://kafila.online/2017/02/21/the-struggle-to-save-the-jnu-act-the-student-standing-counsels-response-to-ugc-2016-pratiksha-baxi/>./By the undemocratic attempt of the JNU administration, constitutionally validity of the JNU Act, Academic Council, JNUSU, and JNUTA become /null and void. /The JNU administration, by pass the whole process which is violated the JNU Act and surrenders JNU’s autonomy before the UGC’s Regulation.The JNU administration uploads two tables of the existing research scholar and Faculty Members. The administration did not follow a due process while made these two tables. Because of these tables not onlythe student but the Faculty members are under stress that what will happen with the future of the M.Phil 2^nd year and Provisional Ph.Dcandidates. Dr. Baxi called it /Show Cause Jurisprudence<https://kafila.online/2017/02/21/the-struggle-to-save-the-jnu-act-the-student-standing-counsels-response-to-ugc-2016-pratiksha-baxi/>/*.*
<https://kafila.online/2017/01/24/howdothenewugcregulationsaffectprospectivestudentsapplyingtojnuayeshakidwai/>,argued /in “How do the new UGC regulations affects prospective students applying to JNU/? Kidwai stated that due to this regulation the seatswill be reduced drastically and in may center of JNU will not have asingle seats of M.Phil/Ph.D. Due to this Regulation the admission policywill be affect as disaster for the JNU, it will be a blow on socialjustice, and the researcher advisory committee will curtail the academic freedom in the campus.
<https://kafila.online/2016/12/26/jnuvcsabotagesdemocraticfunctioningofacademiccounciltopushthroughantisocialjusticepolicies/>JNU Prof along with 20 Prof in /JNU VC Sabotages Democratic Functioningof Academic Council to push through Anti-Social Justice Policies, /stated:/“We, faculty members of the JNU Academic Council, are shocked anddismayed at the manner in which the Vice Chancellor has conducted the142 Academic Council meeting of December 23 (adjourned to December 26).This was a thinly attended meeting since it was held at short notice inthe middle of the winter vacation, despite several requests forrescheduling. The minutes of the previous (141) Academic Council meetingthat had been circulated contained many errors, misrepresentations, andfalsities. Several of these had been pointed out by many members of theAcademic Council, including in written representations to theRegistrar….//We disapproves of the way in which opinions of many in thehouse were not heard and democratic norms were violated in the conductof the 142 Academic Council meeting by the administration led by theVice Chancellor/.”
We are living in an era where the State not follows its fundamentalobligation to secure justice social-economic and political to itscitizen. Education is the only means through which every sections of thesociety will get the opportunity to come with mains streams, but theState’s intention is opposite at all. On the one hand the State and theUGC is violating the Constitutional principles as they can, and on theother hand the judiciary adopt /hands off approach/ in the matterrelating UGC’s Notifications. The judiciary should take intoconsideration that whether the UGC’s Notification is democratic or not?
The scope of public university is shrinking day by day through various tactics of the State and the future of the higher education comes at theedge. It was not possible for anyone to get admission in any public orprivate university without English but it’s the unique feature of theJNU to allow all sections of the society irrespective of any caste,class, race, gender, religion, language, place of birth andethnicity.The entire academic community are living under stressed due toUGC’s Notification and JNU Administration’s arbitrary and undemocraticdecision. In the academic session 2015-16 the total number of 24,171 Ph.D degrees
and during 2014-2015 academic year the total 21,830 Ph.D degree wereawarded in the country. Due to reduction of seats or intake by the UGC’s2016 regulation, the question arises on the conflict of lawsof thevarious provisions i.e. the constitutionally validity of the socialjustice ensured in Indian Constitution, the JNU Act of 1966, UGC 2009and 2016 regulation, andthe /Central Educational Institutions(Reservation in Admission) Act/ 2006.The UGC 2016 regulation’s impact entire universities and othersinstitutions but the strong voice raised against this draconianregulation by few universities like JNU and Jadvapur University. SomeM.Phil and Ph.D scholars of JNU have moved the Delhi High Court forseeking justice and the whole JNU community is waiting for a positiveresponse from the Court. – Deepak Kumar is a M.Phil Scholar at Centre for the Study of Law and Governance, JNU, New Delhi. – Article Courtesy