#Columns: A Respectful Dissent on the SC's judgement on Distance Education courses

Bar & Bench November 14 2017

Anupam Lal Das

The regulatory regime in education offered through the distance mode has been marred with controversy since its inception. The regulator viz. Distance Education Council (DEC) was created under the Indira Gandhi National Open University Act, 1985 (IGNOU) in the year 1992.

What was perplexing was the fact that IGNOU was the largest player in distance education, and the regulator was created under the IGNOU Act. Nonetheless, despite the said apparent conflict of interest, DEC continued to regulate distance education till the year 2012.

The Supreme Court of India in the case of Orissa Lift Irrigation Corporation Limited Vs. Rabi Sankar Patro, while inter-alia dealing with the issue of whether an engineering course could be offered through distance mode, ended up entering a field that was totally unrelated to the case. After examining in-extenso the history of education imparted through the distance mode, it came to a correct conclusion that imparting an engineering course through the distance mode was not permissible without the approval of AICTE.

It also severely criticized the practice of granting ex-post facto approvals, which were completely opposed to the policy statements governing the issue. Also, the Supreme Court set aside the ex-post facto approvals granted by UGC in cases of candidates enrolled during the Academic Sessions 2001-2005 and suspended the degrees of these candidates until AICTE devised modalities to conduct an appropriate test/tests in terms of the judgment.

The Supreme Court, however, directed cancellation of degrees of candidates enrolled after the Academic Sessions 2001-2005 and also directed withdrawal of benefits secured by such candidates. Unfortunately, these candidates did not have the benefit of an audience before the Supreme Court.  The Court further directed the CBI to carry out a thorough investigation into the conduct of the concerned officials who dealt with matters concerning grant of permission against the policy statement in this regard.

It is humbly stated that though the judgment is correct in its interpretation of the policy statement which leans towards the lack of desirability of offering a technical course like engineering through the distance mode, the Court lost sight of the fact that the DEC and the joint committee consisting of AICTE, UGC and DEC had granted such permission to institutions for some academic years.

The regulatory regime was clearly in a state of chaos and the grant of permission further compounded a sense of confusion in the minds of the students. This lack of clarity in the regulatory regime resulted in offering of technical courses by institutions for over two decades. While conceding to the fact that some of the deemed universities may have indulged in malpractices, the broad brush directions by the Supreme Court have the potential of taking away the livelihood of lakhs of students who may be gainfully employed in various organisations.

The Supreme Court is known for its magnanimous approach in dispensing justice. Article 142 of the Constitution has always been used to do complete justice between the parties and, therefore, the Supreme Court ought to have made the judgment prospective.

However, woefully, the judgment has created a class within a class between students who took admission during the Academic Years 2001-2005 and students who took admission after 2005. It is humbly stated that this artificial classification is not correct since the only reason for protecting the former class is the post-facto approval granted by the UGC. The Supreme Court has itself deprecated the practice of post-facto approvals in this very judgment, and thus everyone should have been treated equally by giving them one chance to make good the deficiency in their degrees.

The Supreme Court has further directed that the to-be deemed universities should stop using the word “University” within one month of the judgment. The Court has, however, not adverted to certain important sections of the UGC Act, 1956 and the UGC (Institutions Deemed to be University) Regulations, 2016.

Section 2(f) of the UGC Act defines a “University” to mean a University established or incorporated by or under a Central Act, a Provincial Act or a State Act, and includes any such institution as may, in consultation with the University concerned, be recognized by the commission in accordance with regulations made in this behalf under this Act.

Further, Section 3 postulates that the Central government, on the advice of the commission, may declare an institution for higher education as a deemed to be a University for the purposes of this Act and on such a declaration being made, all the provisions of this Act shall apply to such institution as if it were a University within the meaning of clause (f) of section 2.

The judgment of the Supreme Court has clearly missed the merger provision contained in section 3 which merges the deemed to be University post such declaration “as if it were a University within the meaning of clause (f) of section 2.

The Supreme Court has further missed the critical words employed in section 23 of the UGC Act, 1956 which reads as under:

“No institution, whether a corporate body or not, other than a University established or incorporated by or under a Central Act, a Provincial Act or a State Act shall be entitled to have the word University associated with its name in any manner whatsoever…”

The expression “…other than a University established or incorporated by or under a Central Act,...” clearly means an institution declared as a deemed to be University under section 3 read with section 2(f) of the UGC Act which is a Central Act referred to in section 23 of the Act. Therefore, section 23 of the UGC Act itself permits the institutions deemed to be Universities established by and under the UGC Act to use the word “University”.

Furthermore, by virtue of Section 22 of the UGC Act, the deemed Universities like any other University are entitled to grant degrees and, therefore, the deemed Universities must be treated at par with any other University in identifying itself as a University and associating the word University to its name is an integral part of its very existence.

The Supreme Court has further not even adverted to the UGC (Institutions Deemed to be Universities) Regulations, 2016 and has referred to the earlier regulations of 2010, which stand superseded by the 2016 regulations.

Also, the impression the judgment holds with regard to the lack of regulatory regime for the deemed to be Universities is not correct as a detailed regulatory regime is envisaged in the regulations of 2016. Furthermore, the National Assessment and Accreditation Council (NAAC), an autonomous body under the UGC Act, grades the institutions as A, B and C institutions on scientific parameters where the most important criterion is adherence to all applicable UGC rules and regulations.

The author is an advocate of the Supreme Court of India.