On Tuesday, in a batch of petitions challenging the July 6 directive of the University Grants Commission (UGC) to the Universities to hold final semester examinations by September 30, the Supreme Court reserved judgment.
After hearing the parties for nearly four hours via video conferencing, the judgment was reserved by a bench comprising Justices Ashok Bhushan, R Subhash Reddy and M R Shah.
Senior Advocate Arvind P Datar (for State of Maharashtra), Senior Advocate Jaideep Gupta (for teachers from West Bengal), Senior Advocate K V Vishwanathan (for Government of NCT of Delhi), Advocate Generals for Odisha and West Bengal, for intervenors Senior Advocate Meenakshi Arora, Advocate Alakh Alok Srivastava among others were heard by the Bench on Tuesday.
The University Grants Commission was represented by Solicitor General Tushar Mehta.
Submissions by Solicitor General Tushar Mehta
It was submitted by Mr. Mehta that UGC have a statutory and mandatory force as all guidelines are issued under the UGC Act.
He further submitted that the Central authority does have the supremacy to decide Under the Act and that University cannot take the decision to confer degrees without holding exams, but can seek for the deadline to be pushed.
The bench during the hearing, questioned the Solicitor General whether the UGC can override a state where a certain situation is existing to direct the holding of exams.
The bench questioned, “if there is a certain situation in a State, can the UGC override the State and mandate for the exams to still be held? How can that happen?”
Background to the UGC Case
On August 14, the court for the petitioners heard Senior Advocates Dr Abhishek Manu Singhvi and Senior Advocate Shyam Divan and started with the detailed analysis of the case.
Dr. Singhvi’s submissions
On 14 August 2020, Senior Advocate Dr Abhishek Manu Singhvi opened the arguments for the petitioner, Yash Dubey and submitted that the matter was related to “life and health of students. It is important to keep in mind Article 14. Different students have different access levels. The exam is not an end in itself. Exam must happen after teaching. There is a direct nexus between teaching and taking of exams. How can there be exams without teaching?Education is not special here; pandemic here is special. Pandemic applies to everyone and everything. If NDMA says that don’t have physical courts, can I come and say that I have this right and that right?”
The Guidelines are a “one-size fits all” method which doesn’t take into account the accessibility, transport etc of students.
He pointed out that the Ministry of Home Affairs has not permitted the opening of educational institutions even now, but has allowed the conduct of exams. This, according to him, was done without a proper “application of mind”.
The States should have the autonomy to take a call on this issue based on the assessment of the local conditions and that the UGC decision was vitiated by “manifest arbitrariness” as per the principles laid down in the Shayara Bano case (triple talaq verdict).
In conclusion, he expressed that, “No one is against the exams in normal times. We are against exams during the pandemic.”
Shyam Divan’s submissions
Shyam Divan, Senior Advocate representing Yuva Sena before the Supreme Court in the petition seeking cancellation of the UGC direction to hold final term exams by Supreme Court expressed that When the UGC itself says that its guidelines are advisory in nature, they must be tailored according to local needs and pointed out that COVID-19 cases are rising exponentially in several states like Maharashtra and that many places, colleges and educational institutions have been converted to quarantine centres.
“Universities need to keep the local situation at mind before deciding to conduct the exams. When Exams Can’t Be Held In April With 1137 COVID-19 Cases, How Can They Be Held Now With Lakhs Of Cases?” Shyam Divan noted.
Contentions by Arvind Datar
On Tuesday, Arvind Datar, Senior Advocate, on behalf of the State of Maharastra before the Supreme Court submitted that the source of the power of the UGC Act is traced to Entry 66 of List 1 of the Constitution which deals with “coordination and determination of standards” for higher education and referred Modern Dental College case to state that “coordination and determination of standards” will not include right to conduct examinations.
He expressed that the University Grants Commission can only lay down guidelines and standards for examinations, and cannot compel that exams should be held by a particular date.
Datar in his arguments pointed that the Indian Institutes of Technology have conferred degrees without conducting final exams and questioned, “If a central institute of international repute can do this, why can’t we(State of Maharashtra)?”, (The State of Maharashtra has passed a resolution based on the decision of the State Disaster Management Authority to cancel the final semester exams and directed the Universities to confer degrees based on alternate evaluation methods) and then elaborated on how not conducting the exams is not something fatal and will not dilute the standards.
The uniform direction to hold exams without advertence to local situations is in violation of Article 14, and Datar notes “How can you say that Kerala, Maharashtra, Odisha must hold it by Sept 30 ? It is completely violative of Art. 14. When it comes to accessibility and online exams, how will students without access be able to give the exams ? What about students with disabilities? We are also worried about the students. We too want the exams to be held at the earliest. We are worried about their future, but it can’t be done in this manner.”
He concluded by saying that referring to Section 12 of the UGC Act, UGC has to consult “universities and other bodies” before taking a decision and cannot act unilaterally and here without consulting anyone in Maharashtra and without finding out the situation in the State, the UGC direction to hold final exams by September 30 was taken.
Delhi Government’s stance
On Tuesday Senior Advocate K V Vishwanathan appearing for the Government of National Capital Territory of Delhi, told the Supreme Court that the poor, downtrodden and those without access to technology will be “hard hit” by the UGC direction to hold final exams by September 30 and “The most hard-hit will be the poor, the downtrodden, and those without any access to technology. Unless you decide to give them all Tablets.” and questioned “What will happen to those Universities who have already followed the April Guidelines? Students have already arranged their affairs as per those guidelines“
West Bengal’s Stance
Senior Advocate Jaideep Gupta representing West Bengal Teachers in the Supreme Court expressed that to insist for examinations for the final semester alone while exempting other semesters from such requirement is unreasonable and discriminatory.
He submitted that, “It (requiring only final semesters to exams) is not a reasonable proposition because every semester is important and average of semesters is important. They are placing a higher weight on the last semester. To insist for an examination for the last semester is not reasonable because there is no difference between the last semester and the second semester or any other semester.”
“These are special circumstances which affect West Bengal. Metro is not working, local trains are not working. Question of holding exams does not arise. Cannot be done!”
“There is also the Cyclone Amphan which has led to many institutions being turned into shelters. Physical exams in this situation are just not possible!”
He concluded by saying that, “The UGC has not taken into account the ground realities. They have not taken into account the accessibility of students. West Bengal will not be able to hold online exams because students don’t have the technology to give the exams. What they’re asking us to do is impossible. In the process, many students will be left out”
Even, Advocate General for West Bengal, Kishore Datta, submitted that different States cannot be treated on the same platter as every State has certain peculiarities. Further, UGC has not taken into account these differences and that “UGC cannot consider this to be a normal circumstance. They have proceeded on the basis as if this is 2019 or 2018. These are exceptional circumstances. They are not concerned with public health.”
The Advocate General also submitted that the UGC took its decision without taking into account the ground realities and without consulting the state government.
The Supreme Court bench has asked the parties to submit their written submissions while reserving its judgment.