“Education is the mirror of the society, without which you can still grow but directionless”.
Education initially was the subject matter of State (e.g. Bihar, Orissa Etc.) but subsequently in 1976 through ‘Right to Education Bill’, education was re-classified under concurrent list by amending Article 42 of The Indian Constitution. In 2010, the children within the age group from 6-14 were sufficed with ‘right to education’ in response to the transposition of police state into a welfare state.
It is well known that ‘with power comes the conflict’, there were different subjects of legislation under different lists, e.g. Union List, State List, Concurrent List. Under item 11 of List II, states were empowered to legislate on education, subject to Items 63, 64, 65and 66 of Union lists. Item 11 of List II regulates the ‘medium of instruction in universities’ while Item 66 of List I regulates the ‘co-ordination and determination of standards in institutions of higher education’. It was envisaged that the Item 11 of List II restricts the full-fledged enforcement of Item 66 of List I. In 1976, concerning the same dispute the power of a state under Item 11 was mitigated harmonically with the power under Item 66 of List I, now Item 25 of the concurrent list embrace the same conflicting interest. Concurrent list is so constructed that the Union government has discretionary power in aspects of the legislation. Though indirectly, the power of the Centre regarding legislation in the subject matter of education is preferred. [1]
Power of Union to direct regarding higher education is subject to disaster management Act or not.
In “Students vs U.G.C.”, the issue which the Supreme Court is addressing right now is, ‘Can states cancel exams even though U.G.C. has directed inversely’.
The states contended that Disaster Management Act confers such right to them and the same is in conformity with the direction of State Disaster Management Authority while the contention of U.G.C. is, they are unconditionally conferred with the power of ‘giving away educational degrees’.
State’s contention
Maharashtra Government contended that it is the conscious decision of the State Disaster Management Authority of quashing the final year examinations after having a thorough outlook over the present situation prevailing in Maharashtra. Delhi government explained the court that Chief Minister/Higher and Technical Education Minister of N.C.T. of Delhi authoritatively expressed his willingness to cancel written as well as the online examination of final year students, irrespective of whether they were enrolled under professional or non-professional courses.
Points which were focused on by states:
-Alternative measures to grant degrees to students of final semesters were devised. In place of the final examination, aggregate of previous semester examinations and class performance would be sufficient for accruing them the degree, as they have completed 85-90% of course which is sufficient for earning them jobs or admission in foreign colleges.
– No classes were conducted in most of the universities in the past five months and commencing the final semester exams without classes is unjustifiable. There is a nexus between teaching and conducting the examination.
-It was also contended that only 33% of the Indian population has access to the Internet as well as online examinations will deprive 2/3rd students of equal opportunity to appear in exams.
-Majority of Vice-Chancellors across the State voted against conducting examinations amid Coronavirus pandemic.
-No clear indication regarding the conduct of examination was contemplated, the examination is not the issue before the court but the examination amid pandemic is.
-The direction of U.G.C., for conducting the examination is against the established institution of federalism. As no consult of states were taken, examination amid pandemic is subject to the local situations within a state.
-The direction of U.G.C. is manifestly arbitrary, as it is violative of Article 14 of the Indian Constitution.
-U.G.C. guidelines are mere advisory and can be refrained to be followed in an extraordinary situation. U.G.C. guidelines are subordinate to the direction issued by the State Disaster Management Authority, as Disaster management authority is a special body and its direction bars as precedence.
-Students are not a heterogeneous class; the difference in promotional provisions between intermediate semester students and final year students is not justified.
Union’s contention
The final say rests with the U.G.C. an issue relating to “grant of degree”. It was also contended that without examination, the degree could not be granted to the final year students. Otherwise, the reliability of such a degree is liable to be questioned in future instances.
Points which were focused on by Union:
-This decision is for the betterment of students and their academic future.
-It was also contended that the said ‘committee which was formed regarding this issue, comprising of Vice-Chancellors of various universities, have recommended for final-year exams after considering the safety measures.
-Over Academic decisions, the force of judicial review is insignificant.
-Guidelines of the Ministry of Home Affairs and the Ministry of Human Resources Development advocates for final year examinations.
Conclusion
It not about who has what power, it is more important to embrace the power for the common object which is to “enlighten this holy land with education”. However, the supremacy of Centre over states is evident from various case law on the question of separate spheres of legislative powers. Nonetheless, the quasi-federal model of India vacates space for the states to have a say.
Life is more important than any examination; the cases of COVID 19 is increasing day after day. The whole object of education is to make things enjoyable rather than burdensome. It is easy to suggest ‘online mode’ of examination, but without requisite classes and lack of digitalization of education, it seems unjust and on the face violates Article 14. Nevertheless, the students should “continue to prepare.”
[1] Sudhir N. Vs. State of Kerla,(2015) 6 SCC 852.
