[Students vs UGC] Universities Cannot Confer Degrees Without Exams; UGC Directions In Students' Interests: Solicitor General Tells SC
Universities can seek for extension for deadline under the UGC guideliness but cannot take the decision to conquer degree without exams. submitted by Solicitor general Tushar mehta, on behaves of the universities grant commision.
SG made a submission in a matter before a bench of Justices Ashok Bhushan, R. Subash reddy, and MR Shah.
He added a caveat to the submission, stating that he did not want to make into a Centre v. State argument. However, he requested the Bench to read the UGC act and the power of the UGC enumerated in it.
Here are the conversation of Lawyers...
Datar: I will come to the practical difficulties which exists in holding the exams. Please come to the Counter filed by #UGC. I will refer to the common compilation and my written submissions.
SG Mehta asks for the written submissions to be sent to him. Datar obliges. Datar continues his submissions
There is a slight confusion regarding the counters which are being referred to. Datar informs the Bench that the Counter he is referring to is dated 30th July.
Datar: The UGC Act is traced to Entry 66 of List 1. My submission is that UGC can lay down standards, but it can’t compel exams to be held.
Datar now refers to a judgement. Justice MR Shah states that the judgment is related to medical colleges.
Datar continues with the 2016 judgement and informs the Bench that he will try to convey its relevance.
Datar: 2016 7 SCC. This was regarding medical education and main controversy was what was the power of State Govt. and Central Govt
Datar: Kindly note that here it was “coordination and determination of standards”. He continues reading the judgement.
Datar submits that the judgment states that Entry 66 has a very limited scope. It would only mean “laying down standards, but not include conduct”.
Justice Shah: But, UGC is not conducting the exams here. That is up to the Universities. You can’t say that UGC says conduct exams.
Datar: You have raised two questions. I will come to the constitutional aspect later. I will raise the “welfare of students” issue.
Justice Bhushan says that the students cannot decide their welfare. “Only the authorities can decide what is in their welfare. Students are not competent enough to decide.”
Justice BR Gavai raises the issue, “Won’t not conducting the exams lead to dilution of the standards only ?
Justice Ashok Bhushan explains the scope arrogated to an authority under the Disaster Management Act.
Datar refers to the question asked by Justice Reddy whether not conducting the exam would lead to dilution.
Datar: IIT itself is going to issue degrees without conducting the final exams.
Justice Bhushan: We are not concerned with IIT.
Datar: I am only putting forth the best argument. If a central institute of international repute can do this, why can’t we ?
Datar: I will explain why not holding the exams is not something fatal and why it won’t amount to dilution. We are now dealing with 2003 UGC Guidelines.
Datar: Note 3 things - What is a programme, what is a semester and what is a course.
Datar: We have 3-year degree & 5-year degree courses. I’m currently concerned with only non-professional courses. In 2003, the semester system was there
Datar: As of March 2020, 5 semesters had already been completed, and the internal assessment for 6th sem was almost over.
Datar: Clause 6 read with Clause 8 of the 2003 Guidelines gives the picture that a student is evaluated from Day 1. This is different from what we had in our days.
Datar: If I am a student of 1st semester, I write the courses and get the marks. Same for 2nd semester. Now a person gets the aggregate of these two sems which is called CGPA.
Datar: Now today, we are only concerned with final exams. If there are 42 courses, the student has already completed 36. As of March, his CGPA will be the average of first five sems.
SG Mehta asks whether the pattern is present in all Universities. Datar states that it’s the case for State of Maharashtra.
Justice Bhushan states that the arguments needs to be addressed in a manner which affects the entire country, and should not be limited to a State as UGC applies across the country.
Datar: The semester system is applicable throughout the country.
SG: It is not.
Datar: As per my instructions, it is.
Datar: I want to make one point clear. These Regulations apply across India.
Justice Shah: So, Universities have a choice about the kind of semester system they want to follow.
Justice Bhushan: We’ve understood your case that in Maharashtra it is this system. But the entire country is different. What is your argument ?
Justice Bhushan: We have gone through the Regulations. If there’s anything you want to point out, point out.
Justice Shah asks Datar to read 8.1 Regulation.
Justice Shah: According to you, only five semesters will be considered, and six will not be conducted at all ?
Datar: Kindly appreciate, I’m not saying that a 2nd year student should be passed. I’m saying that this is a student who has almost finished the course.
Datar: Please note that job interviews also take place in the last semester. Here is a student who has completed 87.5% of the course !
Justice Bhushan: If there is a contrary direction of UGC, the University cannot act against it. If a University dilutes it, then every University will act in this manner. If a standard is fixed, it’s fixed.
Datar: You are under the impression that not conducting the exam will lead to the dilution of standards.
Justice Bhushan: That we have understood your argument.
Datar: My first submission is that there is nothing arbitrary in a University taking a decision against UGC. If IIT can do that, others can too.
Datar: My second submission is that direction of UGC to all Universities to hold it at any cost by Sept 30 is completely violative of its powers.
Datar: They cannot say that you have to hold the exams by Sept 30 at any cost. Their powers are confined to List 1 and Constitution Bench says that it is limited.
Datar: It is outside the scope of the powers of UGC. It is ultra vires of UGC to mandate the exams to be held by Sept 30.
Datar: The July 6 Guidelines is liable to be struck down.
Datar: The situation in Maharashtra with regard to #COVID19 is terrible.
Justice Bhushan: There is no dispute that Maharashtra is the worst.
Datar refers to a judgment with the citation AIR 61 SC 552.
He submits that Article 14 is violated if you treat the unequal equally.
Datar: How can you say that Kerala, Maharashtra, Odisha must hold it by Sept 30 ? It is completely violative of Art. 14.
Justice Bhushan states that if there are different dates for different States, then the argument would be raised that UGC is being discriminatory.
Datar: Please see the April 29 guidelines where UGC had left it to the States and said that States would take a call depending upon the situation.
Datar: When there were few cases and they couldn’t hold the exams, how can they say that we must hold the exams by Sept 30 when the cases are in lakhs ?!
Datar: The other point I’m making is that an education centre in Pune which has lakhs of students is empty because the students have gone back home.
Datar: There are so many educational institutes which have been turned into quarantine centres. As per the MHA guidelines, they can’t open till August 31.
Datar: When it comes to accessibility and online exams, how will students without access be able to give the exams ? What about students with disabilities ?
Datar: We are also worried about the students. We too want the exams to be held at the earliest. We are worried about their future, but it can’t be done in this manner.
Datar now refers to the UGC Act and the duties of the Commission.
“In consultation with Universities and other bodies concerned”.
Datar: My submission is that any decision taken should be with consultation of Universities. “Other bodies concerned” should include authorities under DMA.
Datar: I will take 10 minutes. This is at the beginning of #COVID19. It was noted that some universities lacked the infrastructure to conduct online exams.
Datar: They said that it would not be feasible and this was with few cases.
Justice Bhushan: Mr. Datar, we have read these guidelines.
Datar: What were guidelines back then, have become mandatory now. If the same UGC says back then that chart your own course, how can they force us now ?
Datar: The recommendations of the expert committee itself stated that if the severity of the situation does not abate, the students could be evaluated on internal marks.
Datar: This report was a report published by the Expert Committee. Kindly see who they were on April 30
Datar highlights that the recent Committee report (which mandates compulsory conduction of exams) does not mention who has been consulted.
Datar submits that the 29 April report says that it will be left to the discretion of the States and the recent report states that the final examinations must be conducted
Datar: In the second Committee, kindly see who all they’ve consulted. It’s very interesting
Datar submits that first committee was chaired by Prof. RC Kuhad. The second committee was also under him.
He states that other universities and other bodies were not consulted.
Datar: I have asked everyone in Maharashtra. No one was consulted. No one tried to find out what the situation was in Maharashtra. Section 12 was not complied with
Justice Bhushan asks Datar if there’s anything more.
Datar highlights some paragraphs regarding the practical difficulties with respect to conduct of exams.
The Bench tells Datar that they have noted all these submissions.
Justice Shah (in a lighter vein): Allow other Counsels to give the exam too !
Datar concludes his submissions by placing on record the Maharashtra Examination Act to put forth the legal proposition.
Datar: One is a delegated legislation and one is a State legislation. It states that a State has complete autonomy. A statutory provision will overrule the Guidelines. There is no repugnancy.
Adv. Alakh Alok Srivastava attempts to make a submission, but the Bench notes that they will hear his submissions later.
The Bench notes that they will hear State of Odisha before.
The AG of Odisha submits that his arguments are along the lines of Datar’s
AG of Odisha: Under the prevailing situation of COVID-19, it is not possible to hold a conventional examination. With this background, it is our submission that the exam is a culmination of 6 sems.
AG of Odisha: In the present circumstances, it would be completely impossible for the State to hold the exams as mandated by UGC. Odisha is at its peak !
AG of Odisha: We have been writing to the government to make them understand this situation.
Justice Bhushan: We will read your Counter.
Sr. Adv. Jaideep Gupta, on behalf of an association of teachers, now makes his submissions with respect to the situation in State of West Bengal.
Gupta: Just as Mr. Datar pointed out, in both semester and yearly system, an aggregate marks are taken into place.
Bench: There is no issue. If it is permissible, then University is free to evolve its own procedure.
Gupta: My submission is that the UGC guidelines of 6 July is not a statutory document. Mandating the exams to be held by September 30 is unreasonable.
Gupta: It is not a reasonable proposition because every semester is important and average of semesters is important. They are placing a higher weight on the last semester.
Gupta: To insist for an examination for the last semester is not reasonable because there is no difference between the last semester and the second semester or any other semester.
Gupta: In West Bengal, we don’t have campus centres. There are different centres which need to be booked and would require students to travel and find accommodation across the State.
Gupta: These are special circumstances which affect West Bengal. Metro is not working, local trains are not working. Question of holding exams does not arise. Cannot be done !
Gupta: There is also the Cyclone Amphan which has led to many institutions being turned into shelters. Physical exams in this situation is just not possible !
Gupta: These Guidelines are an Executive order and still need to be tested under Article 14. The Wednesbury Rules apply. The UGC has just not taken into account the ground realities.
Gupta: They have not taken into account the accessibility of students. West Bengal will not be able to hold online exams because students don’t have the technology to give the exams.
Gupta: What they’re asking us to do is impossible. In the process, many students will be left out !
Gupta: Further, three persons across the country cannot be said to form a proper consultation method. UGC has not complied with Section 12 of the UGC Act.
Sr. Adv. Jaideep Gupta concludes his submissions.
AG of State of West Bengal, Kishore Datta, now begins making his submissions.
Datta submits that different States cannot be treated on the same platter as every State has certain peculiarities. Further, UGC has not taken into account of these differences.
Datta: UGC cannot consider this to be a normal circumstance. They have proceeded on the basis as if this is 2019 or 2018. These are exceptional circumstance
Datta: They are not concerned with public health.
Bench: Guidelines of social distancing etc. still need to be followed.
Datta: UGC has not consulted with the State. The State is working on the ground level and know how the situation. It is the duty of the State to ensure public health.
Datta: There are dual aspects. There is education and public health. UGC has not informed the Court about what they’re doing about public health !
Datta: Fine, they care about the standards of the examination. But, what about public health ?
The Bench informs Datta that these propositions have already been argued.
Sr. Adv. KV Vishwanathan, on behalf of Delhi Govt., begins his submissions now.
Vishwanathan highlights the divide between rich and poor students, with the latter having no access to proper technology.
Vishwanathan: As per 6 July Guidelines, three modes of exams are permitted. Offline - Completely out of question ! Online - They don’t have access to libraries or any student material.
Vishwanathan: There are students who have grandparents, parents at home; they are not even stepping out of the house ! They don’t have access to books (which can be very expensive).
Vishwanathan: This is the pith and substance of the argument. Section 12 (consultation) has been argued, so I will not delve into it.
Vishwanathan: The strongest argument for the SG here is that the past few circulars are Guidelines. But, they cannot be mandatory.
Vishwanathan: The scenario we are in today, there has to be a different method which is devised. This is an extraordinary situation.
Vishwanathan: There is no rational differentiation between last semester students and second semester students. Unequals are being treated equally.
Vishwanathan: The Court should not rest with the Kuhad Committee Report. No alternative mechanisms have been explored. Please consult someone of repute.
Vishwanathan: The most hard-hit will be the poor, the downtrodden, and those without any access to technology. Unless you decide to give them all Tablets.
Vishwanathan: Finally, what will happen to those Universities who have already followed the April Guidelines ? Students have already arranged their affairs as per those guidelines.
Bench: There is no contradiction between April and July Guidelines. They former only allowed the Universities the discretion to decide the method.
Sr. Adv. Mihir Desai attempts to make submissions on behalf of Intervenors. The Bench states that they will hear him later.
Arora: My arguments are based on two planks. Let the students not be made Guinea pigs as to whether they will be able to take online exams.
Arora: Students have not been given a level-playing field. Plus, the University treats them on two different ways.
Arora: There are students who are able to give the exams now. And there are students who won’t. The latter are called leftover students.
Arora: The issue here is that other Universities, jobs have limited seats which will be fulfilled at the earliest. The leftover students will lose out.
Justice Bhushan: What is your solution ? This has been argued.
Arora: DU has already begun the exams. I request my Lords to ensure that those students who have not been able to give the exams to be treated on equal footing.
Arora: You must seriously consider this. Not only are they going through trauma of an epidemic, but the mental trauma the students are going though is compounding the problem.
Arora: Please consider that when the results of the leftover students are declared, Universities take into account the situation and take in students on that ground.
Srivastava: These exams will directly affect the health of lakhs of students. Section 12 requires consultation and the consultation should include public health experts.
Srivastava: Section 14 of the UGC Act says that if a University fails to comply with UGC Guidelines, UGC can stop giving it grants. That’s the widest scope.
Alakh Alok: Further, the nature of the exams should be told to the students at the beginning of the semester. The session began in July 2019. Of course the pandemic could not be foreseen.
Alakh Alok: Coming to the constitutional arguments, my predecessor who has passed out, they will be treated on a different footing and I will be disadvantaged. This is against Art. 14.
Alakh Alok further highlights that there are flood-affected areas as well which impede the conduct of exams.
Bench notes that these arguments have been made before.
Adv. Kishor Lambat, for the Intervenor, makes his submissions. He highlights that there are parents who have lost jobs and students are facing hardships.
Narasimha: Many students, for going to higher education abroad, it is to be noted that the final examination is absolutely necessary.
Narasimha highlights the importance of the final-year examination in assessing the capability of a student, even for purposes of higher education.
Narasimha: There are students who put in a lot of hope in their last exam. They think that “final exam aayega toh karenge”. By doing away with the exam, meritorious students will jeopardised.
Narasimha: Further, life must go on ! Government is functioning, Courts are functioning. We must be resilient in this matter. In this context, UGC has given the COVID guidelines.
Narasimha: I don’t think the Guidelines given by UGC contravene the issues of health as Vishwanathan has said. We must move forward.
Navare: Apart from the pandemic, one cannot say that there is no legal soundness in the decision of UGC.
Navare: The decision taken by UGC is within the four corners of its powers. It does not exceed their powers.
Navare: I must raise the issue that students seeking for examinations not to be held cannot be heard under Article 32 at all.
Navare: At the most, in its widest amplitude, the deadline can be moved. But, States cannot be directed to not hold the exams at all.
Navare: This is not an opportunity to gain popularity amongst students by Chief Ministers of States. The DMA does not give the SDMA any power to do this.
Navare: The only powers conferred upon a State is under Section 8. There is no other provision which gives powers to the State. In fact, even VC is given the power, but not the State.
Navare: In this context, UGC completely has the power to mandate the conduction of exams. But, yes, the deadline of September 30 must be left to the individual Universities.
Navare: So, I completely support the UGC Guidelines.
Solicitor-General Tushar Mehta now begins his submissions.
SG: Your Lordship has the jurisdiction to set this aside. But, I will put forth the contours of the jurisdiction
SG: First the Bench needs to decide who is superior. I don’t want to make this into a Centre v. State argument. But, let us look at the UGC Act and its powers.
Connection with the Bench has been lost.
SG: Must be an electricity problem. I am having the problem too.
KV Vishwanathan: Imagine the plight of the students !
Sr. Adv. KV Vishwanathan asks SG Mehta about how he deals with the physical files during COVID times.
SG responds, but no sound comes.
Vishwanathan: Oh, you are muted. For a change !
Bench is getting connected. Matter has now resumed.
SG Mehta continues his submissions. He refers to the compilations wherein the UGC Guidelines are enumerated.
SG: On 6th May, State of Maharashtra constituted a State-level Committee by Minister of Higher and Technical Education. Their own committee recommended the conduct.
SG: It was their committee and their observations that the exams can be conducted. And the State accepted their report. But, I am not concerned only with Maharashtra.
SG: There was a political somersault by the Maharashtra government in this matter.
SG now refers to the chain of events in a chronological manner, including the decision of MHA to reduce the extent of the lockdown.
SG now refers to Divan’s arguments of last week about how the government wasn’t functioning. He further states that the MHA’s guidelines could make the restrictions stricter.
SG: Now, responding to Dr. Singhvi’s manifestly arbitrary argument, the conduction of final-year exam is a must. One cannot say that holding it is arbitrary.
SG now refers to the MHA Guidelines which have been referred to in the past few months. He also refers to the Guidelines for conduct of examinations.
SG: Presently many Universities have conducted the exams - online, offline and in hybrid mode.
SG: The performance in examination brings in scholarship and recognition, and job opportunities. I want to now show application of mind and consideration of ground situation.
SG now refers to the Standard Operating Procedure which lays down the dos and don’ts that has been vetted by the Ministry of Health and Family Welfare.
SG: The SOP talks about thermal scanning, masks, social distancing, and this was approved so as to ensure that students’ health was fine.
SG: The UGC and other Regulators exist for the protection of interests of stakeholders. Here, students are the main stakeholders.
SG: The UGC’s directions are meant to ensure that the degrees of the students are provided to them at the lastest. It is for their interest only.
SG now refers to State of Maharashtra’s 13 July affidavit.
SG: What is the position ? We are not only dealing with 4-5 states. It is a pan-India issue.
SG now attempts to show the Bench statistics regarding all the States.
The Bench directs him to submit a short note and to begin on the legal submission.
SG: UGC Act derives its power from Entry 66 of List 1 in Schedule 7. I want to draw your attention to Section 12 which provides functions of University.
SG: Regulation 6(1) of 2003 Regulations is regarding the minimum standard for giving the first degree. Plus, the University must adhere to it. There is a statutory mandate here.
SG: The limited point that I am making is that the Guidelines have a statutory mandatory force.
SG now refers to a 2005 judgment.
SG now refers to a 2013 judgment of “Maha Vaishno Devi Mahila Vishwavidyalaya v. State of UP”.
SG: I am now directly coming to the arguments based on the Disaster Management Act.
SG: I don’t wish to travel in the area of whether Centre is supreme or State is Supreme. The Act is designed in a way that a disaster can be a local disaster or a disaster can be pan-India.
SG: For instance, disaster in Gujarat is a local disaster, which is area-based. Now come to the definition of the term “Central Government”. And “disaster” means a catastrophe, mishap. calamity etc.
Bench: This much is clear. The only question that needs to be answered is whether a University’s decision can override the Guidelines.
SG: Under this Act, the Central Government does have the supremacy to decide.
Bench asks SG Mehta that if there is a certain situation in a State, can the UGC override the State and mandate for the exams to still be held ? How can that happen ?
SG makes a final submission that the entire country is working.
“The students are 21-22 year olds. Can you really believe that they will not be going out ?”
SG finally notes that the Universities can seek for the deadline to be pushed, however, they cannot take the decision to confer degrees without holding exams.
Supreme Court now closes the hearing.
All Counsels have been directed to submit a note on their submissions within three days.
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