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The former V-C of DU looks at an apex court ruling which quashed the reappointment of Kannur University V-C and said governors acting as chancellors are not bound by the advice of the council of ministers

By Prof Upendra Baxi  

A recent decision of the Supreme Court of India (November 30, 2023) regarding Kannur University V-C, articulates two major constitutional principles which serve to safeguard universities from being treated as backyards of competitive party politics and polices. This was amidst what has been described by the media as a “major setback” to Kerala’s government and amidst state opposition outcry for the resignation of its education minister. 

It goes without saying that this article merely explores juristic reasoning and basic principles, regardless of competitive power contexts and conjectures, important though they are being critical resources for the development of deliberative democracy.

The judgment authored by Justice JB Pardiwala (with whom Chief Justice Dr Dhananjaya Y Chandrachud and Justice Manoj Misra fully concur) first “quashes” the reappointment of the V-C of University of Kannur, Professor Gopinath Ravindran, on the grounds of “unwarranted political interference”. (He has already returned to his post at AMU, saying that no question of resignation arose since the Court had quashed the reappointment). And second, the Court re-emphasises the principle that the governor of a state when acting as chancellor is not to act under the aid and advice of the council of ministers. 

It goes a step further to criticise the action of the governor for “abdicating or surrendering” his statutory powers. This is because it is the “Chancellor who has been conferred with the competence under the Act 1996 to appoint or reappoint a Vice-Chancellor” and no “other person even the Pro-Chancellor or any superior authority can interfere with the functioning of the statutory authority”. Further, “if any decision is taken by a statutory authority at the behest or on a suggestion of a person who has no statutory role to play, the same would be patently illegal” (Para 85). Extra-constitutional authorities may not usurp the powers or supersede the authority of the governor. Such interference will “vitiate” (or jeopardise) the entire decision-making process (Para 86).

The Court further held that if “the outer age limit provided in sub-section (9) would apply even to reappointment, then the same would effectively mean that only those persons who are appointed as Vice-Chancellor at the age of fifty-five or below could be considered for reappointment”. It reasons that had “the intent of legislature been otherwise, sub-section (10) or the words ‘shall be eligible for re-appointment’ would have been specifically qualified by or made subject to the words sub-section (9)” or “provisions of this section”.

This way of reading leaves much space for the legislature to reword the statute accordingly and make, by a statuary amendment, the process of reappointment the same as the process of appointment. Maybe it would be the prerogative of the legislature to accomplish such a change, but in that case, the autonomy of educational institutions will further remain hostage to fickle legislative fortune. That is unless the University Grants Commission adopts a different rule or standard which will then prevail over the state, education being, since the 42nd amendment, a concurrent subject.

Will the ruling necessarily extend to other powers of the Chancellor (e.g. to cause an enquiry against the Vice Chancellor, term of office, etc.) under the University Acts? Equally, will this principle extend to central universities whose Visitor is the president of India and to National Law School Universities whose Visitor is usually the Chief Justice of India and the chief justice of the High Court, who is the Chancellor? By theory of precedent, it should. And in terms of the preservation of the autonomy of educational institutions, it must. But constitutional judicial review process often limits the sway of prior decisions to the law-fact compass of the prior case or controversy.

Yet the recognition of discretionary power does not mean the acceptance of despotic power. Discretionary powers conferred by law are never a gateway to the exercise of arbitrary powers (to act just as you please). The Court goes to great lengths in emphasizing the ruling in Union of India vs Kuldeep Singh [ (2004) 2 SCC 590, articulated in paragraphs 20, 21 and 22], stressing that “the law intends it must be done with sound discretion, and according to law”. This means: “Discretion is to discern between right and wrong; and therefore, whoever hath power to act at discretion, is bound by the rule of reason and law”. 

It prescribes (in the immortal words of Lord Halsbury) “knowledge and prudence” that “enables a person to judge critically of what is correct and proper united with caution”. What is required is “nice discernment, and judgment directed by circumspection; deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colorable glosses and pretenses, and not to do according to the will”. In terms of ancient Hindu wisdom, discernment (Vievaka) entails the determined pursuit of Sayam (another name for a framework of discipline on power that is called Maryada).

All this does not mean that all powers of the governor are discretionary—the Constitution expressly provides for situations where the governor is held bound to act according to the aid and advice of the council of ministers. As the Court observes: “There can be no gainsaying that all the powers that are exercisable by the Governor by virtue of his office can be exercised only in accordance with the aid and advice of the Council of Ministers except insofar as the Constitution expressly, or perhaps by necessary implication, provides otherwise” [Para 75].  It is conceivable that an amendment to the Constitution may so provide but such an amendment may have to run the gauntlet of the Basic Structure. The legislative discretion (to make, unmake, and remake the law) cannot be unbridled; that discretion must be reasonably and be responsibly exercised.

It is eminently arguable that almost all the fundamental duties of citizens in Part IV-A of the Constitution and other provisions and principles stand animated by the spirit and substance of the autonomy of the state and state-aided educational institutions, which require relative autonomy from the power of the political executive, and of the economy, of the day. It may also further be maintained that such autonomy also flows from the golden triangle of Articles 14, 19, and 21, and the preambular values enshrined in the constitutional provisions and principles. It emanates, at least, from the essential features of democracy and rule of law.

Such autonomy may be subject to “reasonable limits”. And the tests of “proportionality” will determine their “reasonableness” in the title of accountability (reasonable expectations of best performance by teachers, administrators, and the system overall). But it is also true that institutions must, in the first place, be autonomous (in order that they become thus accountable). In my words, there is an inner constitutional dialectic between autonomy [A1] and accountability [A2], entailing that A1 must precede A2.

—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer

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