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Note on Law Commission's Proposal for a Central Educational tribunal
by B.D. Agarwala *
Cite as : (1988) 1 SCC (Jour) 13
The Law Commission of India has lately been concentrating on the task of devising and recommending judicial reforms including the necessity of decentralisation of justice. The power of judicial review of administrative decisions resulted in accumulation of huge arrears of cases, in the High Courts as also the Supreme Court of India-cases where interference has been sought in the exercise of jurisdiction under Articles 226 and 32 respectively of the Constitution. The Commission has recently published certain salient portions of the Paper :
"Decentralisation of Administrative of Justice :
Disputes involving Centres of Higher Education"
which has some wholesome suggestions. The subject appears to be presently under the active consideration of the Law Commission.
The salient portions of the Paper, as published have attempted to fathom the varying nature of disputes which arise in the Centres of High Education. Disputes arise in the matter of admissions more specially in relation to admissions to professional courses : Upon the introduction of different kinds of entrance tests; the laying down of the policy of reservation of seats for members of socially and educationally backward classes of citizens; the selection and appointments, either at the initial stage, or, upon promotion to higher posts. In fact disputes covering all aspects of service come up before Courts for adjudication. It has been found that disputes relating to disciplinary matters, both relating to teachers and students have been occupying the time of the Courts. Mention must also be made herein of those disputes which emanate strictly from matters within the field of academic activity.
The Commission has in its Paper, laid emphasis on the necessity of devising a forum wilh All-India jurisdiction and in conclusion, it has observed-
"Disputes involving universities have, therefore, to be handled not by a purely legalistic approach but keeping in view the obligations of the universities to the society and to the nation. Therefore, both from the point of view of specialist approach in the matter of resolving disputes involving universities and decentralisation of administration of justice with a view to reducing the pressure on High Courts and the Supreme Court, it is time to devise a forum with all-India jurisdiction in which all disputes involving universities and its affiliated colleges may be brought for their resolution."
The jurisdiction of such a centralised tribunal must be all enveloping. It must include disputes, controversies and causes involving universities, their financial autonomy, appointment of Vice-Chancellors, their administrative functions, their inter-relation with the State Governments, their inter-relation with affiliated colleges, admissions, disciplinary proceedings, etc.
The Paper then has adverted to a tentative consideration of the composition of this tribunal and in this regard, it has been observed thus :
"The composition of such a tribunal can be tentatively considered. One-third members may come from the cadre of Vice-Chancellors and former Vice-Chancellors and the rest comprising of a few legal academics, judges who have functioned in the High Courts, a few professors and retired officers who have worked in the Ministry of Education. It can sit in benches at various places. The jurisdiction of all courts including the High Courts to deal with disputes falling exclusively within the jurisdiction on such a tribunal must be ousted. Only an appeal to the Supreme Court of India under Article 136 can be preferred against any of the decisions of the tribunal."
Ultimately, the issues which would arise for consideration have been briefly, set out as follows :
(a) Should there be a central educational tribunal to deal with causes, controversies and disputes involving concerned Government, universities, professors in the universities and affiliated colleges and students, with comprehensive jurisdiction to deal with disputes involving the aforesaid parties?
(b) Would such a tribunal provide an all-India perspective to educational problems which today it sadly lacks in view of the fact that education has more or less remained a State subject even after the amendment of Entry 25 in the concurrent list?
(c) What ought to be the composition of such a tribunal? Should it include educationists, vice-chancellors, present and former, government servants who have dealt with problems of education, lawyers and judges who have worked at the High Court level and even social activists?
(d) Would it be conducive to improving administration of universities if the jurisdiction of the High Courts to deal with such disputes is abolished?
(e) Would decentralisation of administration of justice brought about by establishing such a tribunal achieve the desired result of
expeditious disposal of such disputes so as not to render university
administration stagnant ?
(f) Would such a tribunal help in reducing the area of conflict between the State Government and the university in the matter of appointment of Vice-Chancellors, affiliation of colleges, internal autonomy and financial autonomy?
(g) Would such a tribunal help in introducing undisturbed atmosphere in universities for pursuit of excellence?
(h) Keeping in view the fact that all sorts of corrupt influences have reduced the credibility of examination system, would such a tribunal help in restoring credibility?
(i) Would the tribunal help in resolving disputes about admission to professional colleges which is a recurring phenomenon?
As would be seen the subject of the Paper being prepared by the Law Commission of India, salient portions of which have been published at this stage is not only of vital concern to those who are directly concerned with the Centres of Higher Education in this country but also of wide concern to those who are directly involved in and concerned with the administration of justice as well as the general public. It remains to be seen how enthusiastically concerned persons contribute a response to the Commission's proposals and the final product that emerges on the basis of public suggestions.
As would be seen from the points for consideration as have been set out
above, it is manifest that the subject requires detailed consideration. We
cannot allow the importance of the subject to be underestimated.
Presently, only two aspects of the matter are being touched upon. The foremost question is in relation to the composition of the proposed tribunal. The composition as suggested by the Commission in its Paper, would include present and past Vice-Chancellors, people of legal academics, past High Courts judges and those professionals and retired educationists who have worked in the Ministry of Education in the Government. Prima facie, there appears nothing objectionable in this suggestion but certainly it merits deeper consideration.
The Law Commission, presumably will, while finally proposing the constitution of the tribunal, take into account the decision of the Supreme Court in the case of S. P. Sampath Kumar v. Union of India, (1987)1 SCC 124. The case related to the Administrative Tribunals Act wherein vires of Section 28 of the Act which relates to exclusion of jurisdiction of Courts except the Supreme Court under Article 136 of the Constitution was challenged. The Supreme Court held relying upon the Minerva Mills case that the powers of judicial review is an integral part of our constitutional system and that there will be no Government of laws without it and the rule of law would become a teasing illusion and a promise of unreality. It has further held that the Parliament can set up affective alternative institutional mechanisms or arrangements for judicial review provided of course this alternative mechanism or arrangement is no less efficacious than the High Court. The Supreme Court has held that the Tribunal should be a real substitute of the High Court-not only in form and de jure but in content and de facto. The alternative arrangement has to be effective and efficient as also capable of upholding the constitutional limitations.
It has, therefore, to be seen as to whether proposed composition of the Educational tribunal would satisfy the test which has been laid down by the Supreme Court in relation to the Administrative Tribunals Act. The power of judicial review being an integral part of the Constitution has to be preserved both in its form and content. No doubt the anxiety of the Law Commission appears to be, as evidenced from the paper, that a legalistic approach in the matters of disputes relating to this sphere, more than often militates against correct decision which may serve the cause of good administration in the institutions of higher education. But this does not mean that we should pursuade ourselves to reduce the number of legal experts from the composition of the Tribunal. The composition should be such that it can evince an apparent judicial approach to the issues involved, with due regard to the view of academic experts in the matter, but certainly not so as to give it a look of an overwhelming administrative approach. The judicial core and substance of the decision of the tribunal should be ensured for it is that alone which can infuse confidence in the decision-making authority. The decision so made would, of course, be subject to any decision which may be rendered by the Supreme Court in its jurisdiction under Article 136 of the Constitution.
It may also be relevant to mention that the inclusion of Vice-Chancellors, be they present or past, as proposed by the Commission, may in many a case not serve the desired purpose. It has been lately seen that many present day Vice-Chancellors are either themselves men of politics or who have been appointed not because they are academicians and well-versed in university administration but because of political affiliations.
The purpose of constitution of Central Educational Tribunal is to exclude the jurisdiction of the High Courts under Articles 226 and 227 of the Constitution. This can only be achieved to the desired degree if the provisions enabling the making of representations to the Visitor or the Chancellor of the University concerned, are deleted from the different enactments relating to universities. Under the different Central Acts which govern the Central universities, invariably there is a provision empowering the Visitor who is the President of India, to annul any proceedings of the university which is not in conformity of the Act, Statutes and Ordinances thereunder. A mention may herein be made of sub-section (6) of Section 13 of the Aligarh Muslim University Act, 1920 and sub-section (7) of Section 5 of the Banaras Hindu University Act, 1915. Even under the State Acts which govern the State Universities where the Governor of the State is the Chancellor of the University concerned, there is, by and large, a provision conferring a power upon the Chancellor to examine as to whether any decision of any authority or officer of the university is in conformity with the Acts, and the Statutes and Ordinances made thereunder and the decision of the Chancellor has been made final.
During the years it has been held by the Courts before resorting to the jurisdiction of the High Court under Article 226 of the Constitution, an aggrieved person must have already availed of alternative remedies available to him under these Acts, Statutes and Ordinances. Even under the Central Administrative Tribunal Act, 1985 express provisions have been that exhaustion of the available alternative remedies is a must before a claim by the aggrieved person can be entertained by the Tribunal. There further exists a provision expressly, laying down certain rules of limitation relating to entertainment of claims.
In view of the aforesaid, it appears necessary that the provisions in the different Central and State Acts which enable the Visitor or the Chancellor, as the case may be, to examine and annul any decision or proceeding of the university, should be deleted from the different Acts.
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