The Supreme Court strikes down as unconstitutional the Chhattisgarh Private Sector University Act under which 112 private universities sprang up in the State in one year.
in New Delhi
CLOSE to 30,000 students in Chhattisgarh were left pondering their future after the Supreme Court, in a landmark judgment, declared unconstitutional the provisions of the Chhattisgarh Private Sector University Act (Chhattisgarh Niji Kshetra Vishwavidyalaya (Sthapana Aur Vinayam) Adhinayam). As many as 112 self-financed private universities were set up under the Act in the past one year, most of them without basic infrastructure, adequate teaching staff or sufficient financial resources.
The Ajit Jogi-led Congress government passed the Act in 2002, and in November 2003 Professor Yashpal, former Chairman of the University Grants Commission (UGC), challenged its constitutionality in court. In 2004, perhaps sensing that the decision would go against the Act, the BJP government of Raman Singh amended it through an ordinance.
The amended Act required that a university show proof of an endowment fund of Rs.2 crores and 15 acres (six hectares) of land in Raipur if the main campus was to be established there, or 25 acres (10 ha) if the campus was going to be established elsewhere in the State. The ordinance said that if the university could not furnish such proof it would have to deposit an additional Rs.2 crores. The government denotified 60 universities for not satisfying these criteria.
In February 2005, a three-Judge Bench of the Supreme Court, consisting of Chief Justice R.C. Lahoti and Justices G.P. Mathur and P.K. Balasubramanyan, struck down the amended Act, saying that the constitutional defects pointed out in 2002 remained after the amendment, and that Sections 5 and 6 of the amended Act were unconstitutional. Section 5 enabled the setting up of a university through a notification in the official Gazette and Section 6 permitted the university to grant affiliation to a college or any other institution or to set up more than one campus with the approval of the State government.
Said Rajeev Dhawan, advocate for the petitioners: “We found it astonishing that a State with minimal infrastructural resources in both the private and public sectors could create 112 universities within a period of a year. As of September 30, 2004, there were only 312 universities in the entire country, including 204 State universities. Beneath this clearly lay a massive fraud to enable educational entrepreneurs to make money through indifferent education, virtually cheating students of their undoubted right to proper education.”
The court, in its judgment, observed: “For those who want to establish a university, a sum of Rs.2 crores is a pittance. The fact that many of the private universities have challenged the provisions of the amending Act itself shows their intention and purpose – that they do not want to create any infrastructure but want to have the right of conferring degrees and earn money thereby.”
The court held that a university pre-supposes the existence of a campus, classrooms, lecture theatres, libraries, laboratories and office rooms, besides some playgrounds and sports facilities for the overall development of the students. The court said that a university is generally understood as a place with adequate infrastructural facilities, where a wide variety of subjects are taught at a particular level.
Under the amended Act, on the basis of a project report for the establishment of a university the government could confer on such an institution the legal status of a university. The project report required details of the nature of the faculty and the courses proposed, the proposed infrastructure and the proposed capital expenditure for at least five years. The project report had to indicate the availability of land and how resources were going to be mobilised. In effect, a university that existed only on paper could use this provision to confer degrees.
In its affidavit to the Supreme Court, the Chhattisgarh government claimed that it had notified universities on the basis of representations made in project reports by the parties establishing them. It said the State government reasonably expected these universities to have the necessary infrastructure and qualified staff. The government said that by amending the Chhattisgarh Private Sector University Act and denotifying the universities that did not satisfy the criteria therein it had done its bit.
Section 3 of the Act required that a university aimed to fulfil any of 11 objectives and not all of them. Hence, the aim of a university could be to “provide consultancy to the industry and public organisations” or “establish examination centres” or “establish the main campus in Chhattisgarh and have study centres at different places in India and other countries”. The court criticised this as a “colourable piece of legislation being beyond the legislative competence of the State legislature”.
According to Rajesh Dwivedi, the amicus curiae appointed by the court, while Entry 32 of the State List covered the incorporation, regulation and winding up of universities and Entry 25 of the Concurrent List covered higher education, Entry 66 of the Union List governed the coordination and determination of standards in institutions for higher education. Parliament had the power to make provisions for the coordination and determination of standards in higher education in universities, the provisions of the UGC Act and the functioning of the UGC.
The court directed the State government to protect the interests of those studying in the private universities by asking the universities established by it to grant affiliation to such institutions, subject to their fulfilling the norms laid down for the purpose. Technical, medical and dental colleges would have to fulfil the criteria prescribed by the All India Council of Technical Education, the Medical Council of India and the Dental Council of India respectively.
Some of the universities set up under the Chhattisgarh Private Sector University Act offered highly specialised or unusual courses that bordered on the dubious. A degree in Member of the International Institute of Medical Sciences (MIMS), a diploma in Cruise Hospitality Management (DCHM), B.A. in Beauty Care and Health Services, and a certificate programme in Mushroom Cultivation were some of them. Such courses are not taught in the State universities, and granting affiliation to them would be difficult. Said Sumeet Srivastav, who enrolled for the `fast track MBA’ course in Rai University, Raipur: “Before I joined the course I double-checked with the teachers as I had not heard of the course in any other university. Only after I was convinced that the university would continue I paid Rs.75,000 as fees. Now, after the Supreme Court judgment I am in a dilemma.”
THE most troubling question is how the Chhattisgarh Assembly passed such an Act in the first place. Said Sudiep Shrivastava, journalist and co-petitioner in the case: “When the Supreme Court hearings began, the State government went in for cosmetic changes to the Act instead of taking appropriate corrective measures.” In a bid to minimise the damage, the Chhattisgarh government said it would invite teams from the Human Resource Development Ministry and the UGC to recommend whether a fresh Act was required to protect the universities.
According to Chhattisgarh’s Minister for Higher Education, Ajay Chandrakar, the government offered to affiliate 37 universities that fulfilled the requirements under the amended Act to Guru Ghasidas University in Bilaspur and Shukla University in Raipur. But the offer was unacceptable to these universities, which formed the Association for Private Universities (APU) and suggested that legislation be enacted to protect their identities and the interests of their students.
Said Dr. Harish Sanskrityayan, chairman of the APU: “The universities that the government is suggesting we be affiliated to do not have any goodwill in the market or facilities like hostels. It is the duty of the government to see that the career of our students is not hampered.” Added J.K. Soni, Secretary of the Institute of Business Administration and Management, one of the universities affected: “We are an educational body in our own right, looking for avenues to enhance our functioning. We have taken advantage of the government’s norms, with which we have complied.”
However, the affidavit filed by Additional Solicitor-General Amerendra Sharan, who is appearing for the UGC as a respondent in the case, tells a different story. According to the affidavit, in December 2003 the UGC framed the UGC (Establishment of and Maintenance of Standards in Private Universities) Regulation so as to provide an effective regulatory mechanism to maintain the standard of teaching, research, examination and extension services in private universities. The UGC inspected 77 of the private universities created in Chhattisgarh in order to verify the infrastructure and teaching facilities. According to the UGC, most of these universities did not exist on the date of inspection. Most of those that did exist did not have adequate infrastructure and the quality of education being imparted was very poor. The managements of the private universities that were in existence had been running distance education centres outside Chhattisgarh before they set up the universities and these centres were brought under the umbrella of the universities. This was in contravention of the UGC regulations pertaining to the establishment and maintenance of private universities.
The Supreme Court judgment reverses a trend towards the commercialisation of higher education. Said Dhawan: “The judgment is important because after the T.M.A. Pai case in 2002, the Supreme Court enabled a massive commercialisation of education, an issue with which the court continues to struggle. But the Chhattisgarh universities crisis represents the lengths to which this commercialisation could go at the cost of education and students. This judgment arrests that doubtful trend by insisting on prior quality control so that fake universities do not give false degrees and certificates.”