Deemed Universities and Article 12 of the Constitution

Krupakar Manukonda has drawn my attention to an interesting Supreme Court judgment handed down yesterday. In Dr. Janet Jeyapaul v SRM University, the question was whether a writ petition was maintainable against the SRM University, which is a “deemed University” within the meaning of S. 3 of the UGC Act (the petitioner had filed a writ petition complaining of unfair termination of services).

The Supreme Court held that the petition was maintainable under Article 226 of the Constitution, since SRM University had been constituted for – and was engaged in – performing a “public function”. In paragraphs 15 and 16, it relied upon De Smith, “a well-known treaty (sic!)” on judicial review, and the English case of R v Panel. This is somewhat curious, since both the treatise and the judgment deal with the scope of judicial review in a common law system sans a Constitution, while in the present case, the issue turned upon the scope of Article 226 of the Constitution. In any event, in paragraph 22, the Court provided five reasons for its decision:

“Firstly, respondent No. 1 is engaged in imparting education in higher studies to students at large. Secondly, it is discharging “public function” by way of imparting education. Thirdly, it is notified as a “Deemed University” by the Central Government under Section 3 of the UGC Act. Fourthly, being a “Deemed University”, all the provisions of the UGC Act are made applicable to respondent No. 1, which inter alia provides for effective discharge of the public function – namely education for the benefit of public. Fifthly, once respondent No. 1 is declared as “Deemed University” whose all functions and activities are governed by the UGC Act, alike other universities then it is an “authority” within the meaning of Article 12 of the Constitution. Lastly, once it is held to be an “authority” as provided in Article 12 then as a necessary consequence, it becomes amenable to writ jurisdiction of High Court under Article 226 of the Constitution.”

The underlined paragraph is a little curious. It is by now well-established that the correct test for determining whether or not a particular body falls within the meaning of “other authority” under Article 12, is whether it is within the “functional, financial and administrative” control of the State. The fact that the legal status of a body is determined by a statute is neither necessary, nor sufficient, for it to fall within Article 12. In the early case of Sukhdev Singh v Bhagat Ram, the Supreme Court had noted:

“A company incorporated under the Companies Act is not created by the Companies Act but comes into existence in accordance with the provisions of the Act. It is not a statutory body because it is not created by the statute. It is a body created in accordance with the provisions of the statute.”

There is a distinction, therefore, between a body that is conferred with a certain legal status under a statute, and a body that is created by the statute. Unarguably, in the former case, the legal status, without anything more, is insufficient to bring the body within the meaning of Article 12. Here, however, the Supreme Court seems to have held that the mere fact that the SRM University is brought within the purview of the UGC Act automatically brings it within Article 12, without any analysis of whether the control test has been satisfied.

Indeed, in 2012, while dealing with an identical issue, the Rajasthan High Court observed:

“Perusal of the pleadings reveals that no facts pertaining to financial or administrative involvement and control of the Central or the State Government in any manner has been pleaded. The only argument is in regard to section 3 of the UGC Act whereby BITS has been declared as ‘deemed to be university’. Merely declaring respondent BITS as deemed to be university does not cover it under Article 12 of the Constitution.”

(The single judge’s opinion has been challenged on the ground that a previous division bench of the Rajasthan High Court had already held BITS to fall within Article 12. Interestingly, in that case, the Court had gone into a detailed analysis of the functional, financial, and administrative control exercised upon BITS by the government – see here).

It is unclear why the Supreme Court needed to go into Article 12 at all. As we have discussed before on this blog, the tests for maintainability under Articles 12 and 226 are different, and the word “authority” has a much broader meaning under Article 226 than it does under Article 12. A public function test is sufficient to attract Article 226, as compared to the much stricter control test under Article 12. This, being an Article 226 case, could have been decided solely on public function grounds. The introduction of Article 12, and the manner in which it has been discussed, raises some concerns about the future direction of law on the point.

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8 Comments

Filed under Article 12: Meaning of "State"

8 responses to “Deemed Universities and Article 12 of the Constitution

  1. Chinmay

    Could you share the blog link to the discussion on (the tests for maintainability)/(authority) under Article 12 and 226? — Strangely the search function is not working for me. Thanks

  2. Karan Lahiri

    The conclusion on Article 12 is clearly an error. The entire reasoning focuses on “public function” and, suddenly, there is a conclusion on Article 12 without discussion on any of the jurisprudence on it.

    The reference to De Smith etc., however, can be understood in the context of the discussion generated by your last post on Art. 12. The fact is that, in India, Art. 14 has becomes the starting point for fairness and natural justice in administrative law (as Raghav had commented). More importantly, Art. 226 is the default method to challenge administrative decisions. The “public function” test, therefore, is being drawn from administrative law sources to determine the jurisdiction of the High Court under Article 226, because Article 226 has come to effectively contain within it administrative law remedies. So, while there is some discussion (in the literature available on horizontal effects of constitutional rights) on “public functions” in the context of US law (some of which, I can tell you, was actually cited before the Court) and the Human Rights Act in the UK, the UK administrative law decisions on “public function” are, again, entering the fray because of how our constitutional and administrative law jurisprudence is almost irretrievably entangled.

  3. Janet jeyapaul

    I think the Sukhdev ram vs Bhagat ram reference has been misquoted in the main article as The extract pertains to last part of para 25 of the judgement order Sukhdev Singh vs Bhagat Ram ( 1975) 3 S.C.R. 619.wherein both sides of the argument were heard , and the Additional Solicitor General held the view that even if a Company is created by a statute like ONGC, LIC its regulations do not have the force of law as it is (regulation) the same as a Company incorporated under the Company Act that has to follow provisions of the Act.
     
    The Additional Solicitor General submitted “that regulations could not have the force of law because these regulations are similar to regulations framed by a company incorporated under theCompanies Act. The fallacy lies in equating rules and regulation of a company with rules and regulations framed by a statutory body. A company makes rules and regulations in accordance with the provisions of the Companies Act. A statutory body on the other hand makes rules and regulations by and under the powers conferred by the Statutes creating such bodies. Regulations in Table-A of the Companies Act are to be adopted by a company. Such adoption is a statutory requirement. A company cannot come into existence unless it is incorporated in accordance with the provisions of the Companies Act. A company cannot exercise powers unless the company follows the statutory provisions. The provision in the Registration Act requires registration of instruments. The provisions in the Stamp Act contain provisions for stamping of documents. The non-compliance with statutory provisions will render a document to be of no effect. The source of the power for making rules and regulations in the case of Corporation created by a statute is the statute itself. A company incorporated under the Companies Act is not created by the Companies Act but comes into existence in accordance with the provisions of the Act. It is not a statutory body because it is not created by the statute. It is a body created in accordance with the provisions of the statute.”

    However in the same Sukhdev Singh v Bhagat Ram (1975) 3 S.C.R.619, the Supreme Court held
    Rules and Regulations of the Oil and Natural Gas Commission, Life Insurance Corporation, Industrial Finance Corporation have the force law
    Briefly, a summary of all case laws seem to suggest that there r 3 imp test for inclusion of a body under ” other authorities ” of article 12- . 1 instrumentality or agency of state 2. Statutory body 3. Should have power to lay done rules or force of law eg, university power to lay down rules for conductance of exams that r binding and have force of law to give degrees recognised under a statute ( section 22 of ugc act ) besides given the power to affiliate colleges under section 3 of ugc act…a power not conferred to private universities

    . It is important to note that there have been cases where the semblance to instrumentality / agency of Govt or public function in terms of educational manifestos have been established in cases involving NCERT ( Chander Mohan Khanna v National Council of Educational Research and Training I LR 1980 Delhi 1010. )and CSIR (Pradeep kumar Biswas vs Indian institute of Chemical Biology , 2002(5) SCC 111) but which were not found amenable under Article 12 due to the fact that the pervasive presence of Govt was not felt either through statutory force and or demonstration it had the force of law the power to lay down rules and regulation that are binding on its employees .
    16. This despite the fact that these above institutions received grant in Aid from govt to the tune of 75-95% of its expenses, had govt.officials on their board, and undertook activities to promote education such as text book publication s etc. Thus, this shows that grant in aid is not such a big factor for jurisdiction through Article 12 and is not a criteria to show pervasive presence of Govt.

    Dr Janet jeyapaul petitioner in person

  4. Janet jeyapaul

    Further the article 12 was included together with article 226, because divisional benches of other high court had ruled in favor of writ maintainibility of deemed universities and the divisional bench of the madras high court was the first divisional bench to bring article 12 into its ruling of non maintainibility of writ petition of deemed university. Though the petitioner in person had through several affidavits, rejoinders and submissions pressed that merits of case be considered for establishing writ maintainibility, the Supreme Court took the view of the divisional bench of madras high court to examine writ maintainibility without going through merits of case and thus had to include article 12 in its ruling, I think.

    Dr Janet Jeyapaul petitioner in person

  5. Janet jeyapaul

    Even a cursory reading of section 3 UGC Act ,1956 together c section 2 (f) of the same act will reveal , that conferring University status by UGC Act brings deemed universities / universities under the same legal status of univ created by a Central or state Act. It is so stated by the section 3 and section 2 (f) of the UGC act itself.

  6. Janet jeyapaul

    In a state where the Tamil Nadu Private colleges Regulation Act 1976, which clearly advocates deposition of Prof/ assoc profs/ assistant Prof / lectures salary even during period of enquiry and payback of all salary n arrears on completion of it and appeals to competent authority etc etc.., has lost its sheen and shine due to cultural compulsions overriding the rule of law and compassionate professionalism etc, atleast a central Govt act such as UGC Act must be safeguarded for some measure of justice to prevail.

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