UGC v. Students: Finding the Right Balance (Part II)
The novel Coronavirus has had a global impact primarily on health; however, spill-over effects can already be discerned in the education sector. Due to the sudden closure of all educational institutions, the whole education system has encountered a radical change not less than havoc. Not only have classes shifted to remote learning overnight, but the system is suddenly facing an indefinite impasse. In India, the government has been instrumental in closing all educational institutions on account of the nationwide lockdown, as an outcome of which, learning and research of school going students to postgraduate scholars has been severely disrupted. Furthermore, the University Grants Commission (“UGC”) along with the Ministry of Home Affairs (“MHA”), through its recent set of directions, is adding to the plight of the already battered students. The greatest damage has been brought to the final year students- who were ordinarily scheduled to graduate in the month of June/July, but in the current unprecedented times, they find a sword hanging over their head. In its revised guidelines (“the Guidelines”)released on 06.07.2020, UGC decided to conduct final year exams by September 30, and it continued to be the butt of students’ ire.
Masses of students have resorted to social media to protest against the arbitrary decision, trending #Studentlivesmatter and #DUagainstOnlineExams. This also points us towards the discussion as to whether graduating without exams could be normalized in such times of distress. It is tragic, how during this historic global crisis, the Centre is neglecting the emotional and mental well being of students. Students are facing a dilemma by the utter disconnect between their problems and decision-makers. Thus, it becomes pertinent to assess the guidelines as against the fundamentals enshrined under Articles 14 and 21 of the Indian Constitution.
Counterintuitive Application of the Revised Guidelines by UGC
Violation of the Right to Life
As per the provisions of Article 21 of the Constitution, “No person shall be deprived of his life or personal liberty except according to procedure established by law”. The word life in this Article does not only concern itself with the mere act of breathing. It does not connote mere animal existence or continued drudgery through life. It encompasses a wider scope including the right to live with human dignity, right to livelihood, right to health, among others.[i]
The Apex Court has been approached by the students through a plea seeking issuance of orders to UGC, thereby requesting for quashing of the revised Guidelines on holding mandatory exams for final year students through an online, offline or even a blended method keeping in mind the Covid-19 pandemic. In such stressful times, the MHA along with the UGC has irrationally prioritised academic evaluation, neglecting the importance of the health and lives of the students involved.
While the majority of students and scholars spread all over the country have been emphasising on the demand for mass promotion based on internal assessment, and accordingly awarding provisional degrees, UGC has not shifted from its stance. Almost all states are following a lockdown, with many big cities having various containment zones. It is preposterous to expect students to move across cities and states, taking into account the threat involved and non-availability of transport movement.
Further, the Government has remained unsympathetic towards the students who may have tested positive for Covid-19. Certain measures have so far been taken by the governments to accommodate such students. However, setting a bar as to the date until which they can take the examinations does not appear to be in the academic interest of such students, but can instead be viewed as a flagrant violation of their fundamental right to life as provided by the Constitution. While the guidelines make mention of a provision for conduction of exams through a special chance for the students who may not be able to appear for final examinations, the same, however, is characterised by vague terms such as one-time measure. Moreover, the provision stipulates that the Universities may conduct exams for them whenever it is feasible for them, which can greatly affect the career prospects of such students as it inhibits a student in securing a degree for a long time.
Another grave concern looming large over the head of the students is examinations in the present times coupled with the uncertainty of their career ahead. The mental peace is often neglected by the authorities while framing such orders despite the fact that mental stress falls within the ambit of the right to health under Article 21 of the Constitution.[ii] The right to health does not merely equate to the right to not be unwell, but rather the right to be well.[iii] It circumscribes not just being diseased or unwell but extends to complete physical, mental and social well being[iv] of an individual, entitling him the right to a system of healthcare that gives everyone an equal opportunity to enjoy the highest attainable level of health. It was held in the K.S. Puttaswamy judgement that, “Article 21 of the Indian Constitution imposes negative as well as a positive obligation upon the state not to interfere with the right to health, but also to take positive steps to provide adequate resources to secure effective enjoyment of the right to health”.[v] It is appalling to note that there have been numerous instances of students succumbing to the pressure and committing suicide after failing to attend online classes in absence of a smartphone and computer.
The Equality Conundrum
Moreover, the present set of guidelines issued by the UGC also fall foul of the touchstones of equality as enshrined under Article 14 of the Constitution. It can be seen that the UGC, in its revised set of guidelines, has failed to take note of the fact that, in the present circumstance, not every individual is placed at a similar pedestal like the others.
There are several factors that should have been taken into consideration by the UGC here, before asking the universities across the country to implement its directions. A straightjacket formula cannot be applied when the students themselves, despite being the chief stakeholders in this case, are placed differently. In the case of online examinations also, it needs to be remembered that not all individuals have similar access to internet and technology. Additionally, unequal power access and blackouts are also a reality and cannot be completely ignored in the country while devising a scheme (relying on the access and availability of technology and internet facilities) that will impact a significantly large portion of the populace. The guidelines, moreover, have turned a blind eye to the plight of the students from States such as Assam and Bihar (facing the wrath of incessant floods), and from West Bengal and Odisha that are still reeling from the loss caused by cyclone Amphan.
Thus, the present set of guidelines not only appear to be arbitrary and unreasonable in nature but also apathetic to the cause of the students, especially from the lower strata, who may have no or limited access to internet facilities. The scheme of equality as per the Constitution does not state that the same rules should be devised and applied to all individuals but instead postulates that only the individuals who are similarly circumstanced can be subjected to the same laws.[vi] It should be noted here that the decision of holding exams is not arbitrary in itself, but instead, it is the deadline set for conducting the exams, i.e. September 30, is unreasonable.
Moreover, if the offline mode is accepted by the Universities, and imposed on the students and the teachers/ examiners, they would then be compelled to risk their lives so as to comply with the same so as to appear for the final examinations. It would also imply that the lives of such a class of students and invigilators are not as important as the others. This rule set by the UGC egregiously undermines the value of the life of various individuals. The same cannot be construed to be a reasonable classification of these individuals, for the purposes of the guidelines, since it not only fails to meet the cornerstones of reasonableness, equality and non-arbitrariness under Article 14,[vii] but also seeks to truncate the right to life enshrined under the Constitution. Thus, the guidelines prima facie appear to be ultra vires the constitutional safeguards on grounds of them being manifestly arbitrary[viii] and should, therefore, be declared void.
Can Degrees be Granted without Conducting Examinations: Dissecting the Law
Recently, the State governments of Delhi and Maharashtra expressed their inability to conduct final term exams and thus, this decision of the Government fell in contradiction to the revised guidelines set for the same. The argument presented by the UGC against this decision of the governments before the Supreme Court was that the State Governments do not have the power to cancel the exams when it is UGC that confers degrees to the students. Thus, it first becomes pertinent to analyse as to whether the State Governments can decide to not hold the exams in contravention of the guidelines set by the governing body, i.e. the UGC, and in the present case, by taking recourse to the powers conferred to it under the Disaster Management Act, 2005 (“DMA”).
It would be pertinent to state here that the present guidelines issued by the UGC are not binding in nature. Moreover, it must also be noted that while in ordinary circumstances, only the Parliament, under Entry 66 of List I of the Seventh Schedule, is empowered to determine the standards of higher education in the country, the instant decision of the governments to not hold exams cannot be held invalid on this pretext, due to the overriding power available to the State Authorities under the DMA.[ix]
It would be imperative to address that, in view of the existing law, degrees are not conferred to the students solely based on their score in the final semesters but instead on the basis of their performance throughout the duration of their course.[xii] Thus, it carries no added weightage and does not have a decisive or special value. Moreover, the Act explicitly states that “[T]he right of conferring or granting degrees shall be exercised only by a University established or incorporated by or under a Central Act, a Provincial Act or a State Act or an institution deemed to be a University under section 3 or an institution specially empowered by an Act of Parliament to confer or grant degrees”.[xiii]
Upon perusal of the aforementioned provisions of the UGC Act, it becomes evident that UGC does not have the absolute power to award degrees to the students. Additionally, the present law does not establish that the award of degrees would solely be on the basis of the scores of students in the final semester examinations. Therefore, the decision of the state governments to cancel the examinations cannot be termed as an arbitrary exercise of power but instead a preventive measure to ensure the safety and well being of the students.
As a general practice, the conducting of examinations is considered to be a prerequisite for granting degrees to students all across the globe. Unfortunately, being in the midst of a pandemic, which has created an unprecedented circumstance, the task of conducting examinations is herculean as well as utopian. This is evident from the reply filed by the Odisha Government, on 15.08.2020, stating that the revised Guidelines are not implementable given the worsening Covid-19 situation.
The revised guidelines by the UGC were inherently meant for the best interests of the students and “to safeguard the principles of health, safety, fair and equal opportunity for students.”[xiv] However, a blind eye cannot be turned to the adverse ramifications of these Guidelines as highlighted before. By prioritising examinations and not taking into account all the other factors that would occur as a consequence of it, UGC ignored the fact that the fundamental right to life and health should not be compromised by forcing students to give exams.
It can be recalled that during the initial lockdown phase, all economic and academic activities were forced shut due to the heavy spread of the notorious virus. Even though the lockdown phase has ended, and the ‘Unlock’ has commenced, one needs to be aware of the fact that the spread of the virus is more than ever. Hence, conducting examinations should not be given precedence over the lives of numerous individuals. The Apex Court has maintained the status quo by reserving its judgement on the subject matter. However, the issue needs to be resolved at the earliest so as to relieve the students of this exceedingly precarious position that they have been pushed into.
[i]Maneka Gandhi v. Union of India, 1978 AIR 597.
[ii]Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
[v]Justice KS Puttaswamy v. Union of India, (2017) 10 SCC 1.
[vi]Western U.P. Electric Power & Supply Co. Ltd. v. State of Uttar Pradesh, (1969) 1 SCC 817.
[vii]EP Royappa v. State of Tamil Nadu, (1974) 4 SCC 3.
[viii]ShayaraBano v. Union of India, AIR 2017 SC 4609.
[ix]Section 72, The Disaster Management Act, 2005.
[x]U.P. State Electricity Board v. Hari Shanker Jain, (1978) 4 SCC 16.
[xii] Regulation 8, UGC (Minimum Standards of Instruction for Grant of the First Degree through Formal Education) Regulations, 2003.
[xiii]Section 22, The University Grants Commission Act, 1956.
[xiv]University Grants Commission, Revised Guidelines on Examinations and Academic Calendar for the Universities in view of COVID-19 Pandemic (Jul. 06, 2020), https://www.ugc.ac.in/pdfnews/6100894_UGC-Revised-Guidelines-on-Examinations-and-Academic-Calendar-for-the-Universities-in-view-of-COVID-19-Pandemic_06_07_2020.pdf.
By Rishabh Chhabaria, Junior Editor and Antariksh Anant, Digital Editor at RSRR.