THE CONTEXT:In the recent past various State governments have passed bills to take away the powers of the Governor as the chancellor of the State universities, driven by the opinion that the Governor’s role in State-run universities needs to be minimized. Apart from Tamil Nadu, the governments of West Bengal, Maharashtra and Kerala have expressed concerns over the Governors’ excessive intervention in the functioning of State universities.The area of conflict here is the appointment of vice-chancellors and the functioning of universities. This article analyses the issue which adds another potential flash point in the Governor – State government relations.
THE HISTORY OF THE ISSUE
- The practice of appointing the Governor as ex-officio chancellor of universities dates to the pre-Independence era. The foundation was laid down in the dispatch of Sir Charles Wood in 1854 to the court of directors described as ‘The Magna Carta of English Education’ in India.
- This document led the Court of Directors to deliberate that it was perhaps time to establish Indian universities modelled on the London University. Consequently, the universities of Calcutta, Bombay and Madras were established in 1857. These universities like the university back in London consisted of a chancellor, vice-chancellor and a senate. The Governor-General of British India was the chancellor of Calcutta University and the Governors of Bombay and Madras headed their State universities.
- After Independence, whenever a State university is established, it is done with the help of legislation passed by the State assembly. The statute unequivocally incorporates this vestigial provision of making the Governor of that State its ex-officio chancellor. And this is why the Governor, to date, exercises the power to appoint vice-chancellors. However, what we need to note is that post-Independence, the Governor is a constitutional functionary.
THE RECENT AMENDMENTS AND DEVELOPMENTS
- The Tamil Nadu Universities Laws (Amendment) Act, 2022, substitutes the expression “chancellor” in the original Act with “government” with regards to both appointment and removal of VCs. The Bills seeking to amend the process of appointment of VCs in the State universities underline that “every appointment of the vice-chancellor shall be made by the government from out of a panel of three names” recommended by a search-cum-selection committee.
- A separate bill to amend the Chennai University Act, 1923 [Chennai University (Amendment) Act, 2022], with similar intent, was passed by the House.Currently, the Governor, in his capacity as the chancellor of State universities, has the power to pick a VC from the shortlisted names. The bills also seek to empower the State government to have the final word on the removal of VCs, if needed.
- Removal will be carried out based on inquiries by a retired High Court judge or a bureaucrat who has served at least as a Chief Secretary.
- In December 2021, the Maharashtra Assembly passed a bill amending the Maharashtra Public Universities Act, 2016.
- Under the original Act, the Maharashtra government had no say in the appointment of VCs. If the changes take effect, the Governor will be given two names to choose from by the State government.
- In 2019, the West Bengal government reduced the Governor’s authority in appointing VCs to State universities. The government issued a gazette notification West Bengal State Universities (Terms and Conditions of Service of the Vice Chancellor & the Manner and Procedure of Official Communication) Rules, 2019; that abolished the chancellor’s secretariat, reduced the chancellor’s role in choosing vice-chancellors, took away his power to convene meeting of the highest bodies of the universities or take action against vice-chancellors.
- The new rules also Stated that in case of appointment of the vice chancellor of a university, the chancellor shall maintain the order of preference of names placed before him,” as against when the government used to send three names to the governor who was free to choose any one. The rules were notified in the name of the Governor since he is the constitutional head of the State.
- In June 2022, the State Legislative Assembly passed the West Bengal University Laws (Amendment) Bill, which seeks to replace the Governor, with the CM as the Chancellor of State-run universities. Ironically, the Bill will become law only after it receives Governor’s assent.
- In December 2021, in an unprecedented move, Kerala Governor asked Chief Minister to take over as the chancellor of the universities, a post held by the Governor in the State, “so that nobody would question the political appointments and interference in the universities”.
- The case was related to the Vice-Chancellor of Kannur University Prof Gopinath Ravindran who was re-appointed for another four years even after issuing a notification for a fresh appointment.
THREE BROAD WAYS OF APPOINTING THE V-Cs IN A STATE UNIVERSITY
DISCRETION OF THE GOVERNOR
- Appointment of the V-C in a State University is the statutory power of the Governor, endowed over him either by any State law or by the statute of the university itself. In such a scenario, the Governor appoints the VC at his discretion after having suggestions by the search committee.
- Eg: Earlier Maharashtra Government had no say in the appointment of the VC and hence the bill was passed in 2021 to take away the statutory power of the Governor although it has not become a law yet.
BY THE COUNCIL OF MINISTERS OF THE STATE
- The VC of a State university is appointed by the Council of Ministers of the State headed by the Chief Minister. The CoM may/may not constitute the search-cum-selection committee for the purpose.
- The Telangana Universities Act, 1991 States that the search committee shall “submit a panel of three persons to the Government in alphabetical order and the Government shall appoint the Vice-Chancellor from out of the said panel”.
- The Gujarat University Act, 1949 also States that “the vice-chancellor shall be appointed by the State government from amongst three persons recommended by a (search-cum-selection) committee”
BOTH THE GOVERNOR AND CoM PARTICIPATE IN DECISION MAKING
- The Governor chooses from a list of potential VCs submitted by the CoM.
- In Andhra Pradesh and Karnataka, the vice-chancellors were appointed by the Governor from the list of three names recommended by the search committee and with the approval of the State government.
- Incident: In April 2022, Karnataka High Court quashed the appointment of Prof KR Venugopal as Vice-Chancellor of Bangalore University. The order Stated that the appointment had been made by the Governor without the concurrence of the State government. The Supreme Court stayed the Karnataka High Court order and the matter is sub-judice.
ROLE AND POWERS OF THE GOVERNOR AS THE CHANCELLOR OF THE STATE UNIVERSITIES
The Governor of a State is the Chancellor of State Universities including General Universities, Agricultural Universities, Technical Universities, Medical Universities and also Deemed-to-be universities. The Chancellor, by virtue of his office, is a Head of the University and is vested with various powers:
- Appoints the Vice-Chancellors by setting up a search committee, which recommends a panel of names from which he/ she makes the final selection and appointment. Consequently, Chancellor is also vested with the authority to grant leave or institute disciplinary action and award penalties.
- Power to nominate certain members to the Executive Council/ Court of the University.
- Chancellor as the appellate authority has the power to annul decisions of the various university bodies/ authorities which in his view, is against the Act, statutes, ordinances and regulations.
- Power to assent or withhold assent to the statutes and other regulations passed by the Executive Council of the university submitted to the Chancellor for assent.
- Power to hear memorandum and representation of the employees and students.
- Power to take final decisions on election disputes with regard to the representation in different bodies of the universities and managing committees of its colleges.
- Power to nominate experts in the appointment of teachers of various categories in the university.
- Power to preside over the convocation of the university and meeting of its Court/ Senate.
- In order to draw the attention of the Government and streamline the academic session and improve the standard of University Education, convenes review meetings of Vice-Chancellors and concerned ministries.
- The Chancellor shall have also such other power as may be conferred on him by or under Act or the Statute.
IN THE CASE OF CENTRAL UNIVERSITIES
- Under the Central Universities Act, 2009, and other statutes, the President of India shall be the Visitor of a central university.
- With their role limited to presiding over convocations, Chancellors in central universities are titular heads, who are appointed by the President in his capacity as a Visitor.
- The Vice-Chancellor too is appointed by the Visitor from panels of names picked by search and selection committees formed by the Union government.
- The Act adds that the President, as Visitor, shall have the right to authorise inspections of academic and non-academic aspects of the universities and also to institute inquiries.
ROLE OF UNIVERSITY GRANTS COMMISSION
- Education comes under the Concurrent List, but coordination and determination of standards in institutions for higher education or research and scientific and technical institutions come under entry 66 of the Union List.
- The UGC plays that standard-setting role, even in the case of appointments in universities and colleges.
- According to the UGC Regulations, 2018, the “Visitor/Chancellor” (mostly the Governor in States) shall appoint the VC out of the panel of names recommended by search-cum-selection committees.
- Higher educational institutions, particularly those that get UGC funds, are mandated to follow its regulations. These are usually followed without friction in the case of central universities but are sometimes resisted by the States in the case of State universities.
THE NEED FOR SUCH LAWS BY STATE LEGISLATURES
LACK OF CONSULTATION
- The tradition for the Governor to appoint the vice-chancellors in consultation with the State government is witnessing a change in the recent past.
- The inability of the elected government to appoint a vice-chancellor of its own university was causing various irregularities in the overall administration of the varsity.
- Governors should not be vested with the powers that were not mentioned by the Constitution (appointing vice-chancellors) as it would lead to a clash of functions and powers between the State government and the Governor.
AT THE BEHEST OF THE CENTRE
- The elected governments have repeatedly accused the Governors of acting as per the wish of the Centre on various subjects, including education.
OTHER FRICTION POINTS IN GOVERNOR-STATE LEGISLATURE RELATIONS
In recent years, these have been largely about the selection of the party to form a government, the deadline for proving the majority, sitting on Bills, and passing negative remarks on the State administration. For instance:
- The State government and the Governor were at odds in 2021 regarding the appointment of 12 MLCs as Governor Nominees.
- In 2019 the Governor invited a leader and administered him oath as CM. This government lasted just 80 hours.
- The Governor also stalled the election of a Speaker since the post fell vacant in February 2021.
- In 2020 when the State cabinet decided to convene the assembly and communicated that decision to the Governor to sign the order of summons, the Governor kept it pending and has kept sending a series of questions to the government seeking clarifications on the agenda of the house, etc.
- There was, thus, arose a question of great significance in relation to the powers and function of the Governor vis-à-vis the elected government of a State and legislature.
- In December 2020, Kerala Governor turned down a request to summon a special sitting of the Assembly to debate the three central farm laws.
- The steps taken by the Governor in regard to the NEET exemption Bill and the clemency petition of Mr Perarivalan had created quite a stir in the recent past.
Governor is vested with Constitutional as well as Statutory powers and both of his roles have become controversial in the recent past. As the constitutional head of the State, Governor is bound by the advice of his Council of Ministers (CoM) and functions as a vital link between the Union Government and the State Government.In regard to his statutory powers, he is expected to act according to the statute books. The contestation in both these cases arises when he/she inclines toward any political party lines which usually happens when the ruling party at the Centre and the State are different.
The contemporary controversies have mostly been around the issues of selecting the chief minister, determining the timing for proving legislative majority, demanding information about day-to-day administration, taking an apparently long time in giving assent to bills or reserving bills for the President, commenting adversely on specific policies of the State government and exercising powers of the Governor as the chancellor of State universities. The controversies are not new but given that we have a single-party majority government at the Centre, the States have alleged the undue pressure from the Centre.
In the background of present controversies we need to understand that the Governor is the appointed head of the State and not the representative of the people, he cannot be held accountable for the issues of administration and any other disaffection among the people. The present disputes are more or less related to the political contestations and not to the autonomy, accountability and transparency required for academic excellence. Education being in the Concurrent List of the Schedule 7 calls for the cooperative mechanism between the Centre and the States to take the nation forward.
SOME INTERNATIONAL PRACTICES
The selection of vice chancellors ought to be based on the principle of open impartiality and political non-interference which most of the Western countries seems to follow, barring a few. For instance:
- The collegiums of professors elect the vice chancellor in Germany and France.
- The university council elects the vice chancellor.
- In the United States (US), the board of trustees searches and appoints the vice chancellor.
Ø The government appoints the vice chancellor in Sweden.
VARIOUS COMMITTEE/COMMISSION RECOMMENDATIONS
JUSTICE R.S. SARKARIA COMMISSION (1988)
- It acknowledged the distinction between the Governor’s constitutional role and the statutory role performed as a Chancellor and also underlined that the Chancellor is not obliged to seek the government’s advice.
JUSTICE M.M. PUNCHHI COMMISSION (2010)
- The Commission was quite forthcoming in its 2010 report. Noting that the Governor should not be “burdened with positions and powers… which may expose the office to controversies or public criticism”, it advised against conferring statutory powers on the Governor.
KEY OBSERVATIONS BY THE COURTS VIS A VIS THE STATUTORY POWERS OF THE GOVERNOR
- The full bench of the High Court of Punjab & Haryana in Hardwari Lal vs G D Tapase (1981) has held that the Governor has an independent existence and the office held by him is statutory in nature as distinct from the constitutional office of the Governor.
- The Supreme Court has also affirmed in Bhuri Nath vs State of J&K (1997) that when Governors are entrusted with powers derived from statutes in an official capacity, they are not to act on the aid and advice of the council of ministers making a distinction between the two types of offices.
- Most recently the Supreme Court had in March 2022 made some pertinent, though unrelated to the current dispute, observations while setting aside the appointment of the VC of Gujarat’s SP University by the State government. The court said that “any appointment as a Vice-Chancellor contrary to the provisions of the UGC Regulations can be said to be in violation of the statutory provisions, warranting a writ of quo warranto.” The apex court also held that in case of any conflict between State legislation and Central legislation, Central legislation shall prevail by applying the rule/principle of repugnancy as enunciated in Article 254 of the Constitution as the subject ‘education’ is in the Concurrent List of the Seventh Schedule of the Constitution.”
THE WAY FORWARD:
- The recommendations of the Punchhi Commission to save the office of the Governor from any statutory functions not mentioned in the Constitution shall be accepted.
- President Ramnath Kovind at the 51st Conference of Governors, Lieutenant Governors and Administrators called upon the heads of States to play the role of a friend, a philosopher and a guide to the State government. The persons holding the post of Governor shall act in line with such advice rendered by the President.
- Governor as a State University Chancellor is in a way result of colonial hangover which shall be done away with. However, State governments should also try to find alternative means of protecting university autonomy so that the governments do not exercise undue influence on the functioning of universities.
- Appointment and removal of Governor: Venkatachaliah Commission (2002) recommended that the Governor’s appointment should be entrusted to a committee comprising the prime minister, the home minister, the speaker of the Lok Sabha and the chief minister of the concerned State, if Governor to be removed before completion of the term, the central government should do so only after consultation with the Chief Minister.Punchhi Commission (2010) also recommended that the phrase “during the pleasure of the President” should be deleted from the Constitution; Governor should be removed only by a resolution of the State legislature.
- At times judiciary has also come to the rescue of the office of the Governor and made judgments that in a way were meant to ascertain the dignity of the office like in SR Bommai vs. Union of India, 1994, Rameshwar Prasad Case, 2006 etc. These judicial pronouncements are in a way guiding light for the incumbent persons holding the office of the Governor and should act on wisdom.
- It goes without saying that unless the Centre and States work based on cooperative federalism principles, the Governors’ position will keep attracting controversies. Hence, both Centre and State need to functions as partners in the development and governance process of the country.
THE CONCLUSION:The insightful and responsible recommendations made by the committees and commissions examining Centre-State relations have created widespread public sensitivity and opinion regarding various wrongdoings of the Centre through the office of the Governor which have proved to be damaging to the essential federal structure in India. There is little doubt that the provision of autonomy to academic institutions is one of the international benchmarks of a good institution, but we need to balance it with our social realities. It will achieve its desired effect only if any transformation goes beyond merely being ornamental or ascertaining the win in a political tussle.
MAINS PRACTICE QUESTIONS:
- If we want our academic institutions to improve and feature higher in world rankings, we need to think beyond CMs and Governors as chancellors. Comment.
- Many undesirable actions, from the standpoint of the federal and democratic constitutional systems that Governors often at times engage in, could be the result of the uncertainty of tenure that they suffer from. Critically examine.
- ‘Constitutional functions of the Governor are different from his/her statutory functions. Hence the Governor can act independently of aid and advice by CoM while performing the latter roles.’ Examine the Statement in light of recent controversies related to the Governor as Chancellors in the State universities.