After my previous blog on UGC coming up with new rules on dual-degrees which essentially declare IITs offering of BTech-MTech dual degree as illegal, I have been asked by many people whether UGC has jurisdiction over IITs. Can UGC dictate terms to IITs.
Before I answer that question, we need to understand the history and the Constitution of India a bit. In our constitution, the tasks between the state governments and the union (or central) government have been defined in terms of three lists, a union list of topics on which only parliament can make laws, a state list of topics on which only state legislatures can make laws, and a concurrent list of topics on which either can make laws, and in case of any conflict, union law will prevail. Of course, parliament can always influence activities in the state list by suggesting model laws, and by offering financial or other incentives to states to adopt those model laws.
When the constitution was promulgated, the higher education was included in the state list. It meant that parliament could not legislate anything related to higher education. However, as I said above, it was always possible to influence state governments by offering financial incentives.
Nehru was quite wary of having any legislation on higher education passed by parliament since he wanted to maintain the fine balance that the constituent assembly had crafted between the powers of the union and the states. And hence all the central government institutions in the first few years of the independence came to union territories, since parliament could exercise the rights of a state assembly for laws to be applicable in a union territory. The reason for delay of IIT Kharagpur Act (it was not passed in 1951 but in 1956) was precisely this. As per the Constitution, Parliament could not pass such an act, but everyone was advising Nehru that the new institution would lose its national character, if it is set up through a West Bengal act. And it was only after Nehru was convinced that no one is likely to drag the Union Government to court on this issue that the IIT Kharagpur Act was presented to the parliament.
So this was the context in which UGC Act was passed in 1956. Nehru was extremely careful in ensuring that the Act does not contradict any of the state acts which had set up all the universities in the country at that time. The UGC therefore would not have any power to dictate terms to universities. However, it could only push those universities to follow best practices by offering financial incentives.
Things changed in 1976. During the emergency period, a large scale butchering of the constitution happened. Some of the changes were restored later by Supreme Court in the landmark Kesavananda Bharti case through its doctrine of basic structure of the constitution being inviolable. However, the transfer of education from the state list to the concurrent list was considered as regular.
With this change, overnight, the union laws took supremacy over the state laws. The parliament could impose any kind of restriction on state universities, because in case of any conflict, now the union law will prevail. To strengthen the UGC and make it a more powerful body, some changes were done to the UGC Act in 1985.
But the questions remain. Can a body primarily constituted to disburse funds to universities over which it had no legal control, suddenly become all powerful and its directives become legally binding just because the education has now become a part of the concurrent list. Wouldn't this need an explicit and a new legislation by the parliament.
Nobody wanted to know the answer, and still does not want to know the answer. For a long time, UGC was happy because it could control pretty much the entire higher education landscape simply through the carrot of more funding or the stick of reduced funding. A few places where these carrots and sticks did not work were places like IITs, which had a direct funding through parliament, bypassing the UGC. IITs maintained that UGC had no legal jurisdiction over universities, it was only a funding agency, and hence it had no control over how IITs functioned. UGC kept claiming that it had jurisdiction over all universities (which included IITs). However, UGC did not try to force the implementation of its directives, taking the high moral ground of giving sufficient autonomy to universities. It was happy to see most universities follow most of its directives (because of funding). Universities were happy that they did not have to think of making their own rules and in those few situations where they wanted to do things on their own, UGC was not taking a hard stand. Nobody wanted to go to court in most cases, since everyone was unsure of what the courts might rule.
This cozy equilibrium state has now been threatened by the emergence of private universities. These are universities which are not funded by UGC, and hence the carrots and sticks should not necessarily work with them. However, when the first few private universities appeared on the scene, UGC included them in its funding through the so-called 12B route.But with an ever increasing number of private universities, it is no longer possible to provide substantial funds to most of the private universities. Of course, since UGC has a huge nuisance value (it could simply remove your name from its list of recognized university on its website and let you explain the situation to all your students and parents), the private universities have mostly fallen in line too. However, as time passes, and as more and more portion of higher education goes into private hands, questions about the role of UGC will be increasingly asked.
As should be obvious from the description above, there are two schools of thought. One school believes that UGC can issue directives in order to maintain the quality and standard of higher education, and those directives are legally binding on all universities. The other school believes that UGC can issue directives but can enforce them only through the carrot and stick of funding, and has no legal force behind those directives. As an IITian, I tend to believe the latter.
The problem is that either interpretation has its share of problems.
If UGC has all the powers over all universities, then it has powers over IITs, AIIMS, and all such top institutions in the country, and all UGC directives must be compulsorily implemented by IITs. And mind you, it is not just UGC but any stake holder that can take an IIT to court for non implementation of those directives under this interpretation of UGC Act. So our PhD program was always illegal. Our dual degree programs are now becoming illegal. In fact, pretty much everything we do is arguably illegal, since we do not even have 180 days of classes in a year which is required by UGC. So we might as well close shop and go home. MHRD can declare as many IITs as it wants but all of them will either become university-like or will only do illegal things.
On the other hand, if UGC can only get its directives implemented through carrots and sticks of funding, then it has no control over private universities whom it does not fund, and while I think that is absolutely fine (as I have repeatedly argued, we should not have government control in education sector, only accreditation), but most people in academia in Government sector seem to be afraid of such a scenario. Most people in government sector believe that private sector is corrupt and worse, and must be controlled by UGC and perhaps by many other bodies. And unfortunately for this country, the say of the vast private sector is very limited in policy making, at least not in the direct transparent ways, forcing some elements in the private sector to find ways to have influence, thereby proving the critics of the private sector correct (letting them generalize a few to the entire private sector).
As the tension between private universities and UGC increase over a period of time, IITs will get dragged into the debate. After all, from the legal perspective, there is no difference between IITs and private universities - both do not get funded by UGC. And I think it will be good for the education in this country if this clarity of UGC role is provided by the courts sooner rather than later.
Till a bunch of private universities get the courage to take UGC to court, we in IITs can afford to keep throwing UGC letters to dustbin. But how long can that continue?
Hamilton Masakadza at Hamilton
55 minutes ago