29.3 Critical Analysis
Procedural Delay: The Regulation-making process is a primary source of administrative lag in the Indian education sector. Although the UGC is an autonomous body, it cannot notify regulations under clauses (a), (b), (c), (d), (h), (i), or (j) without the previous approval of the Central Government. This creates a double-vetting process. Even after the academic experts at the UGC finalize a regulation, it can sit in the Ministry of Education for months or years awaiting political or bureaucratic clearance. Regulations only become law once they are published in the Official Gazette. The gap between the Commission passing a resolution and its appearance in the Gazette often leads to legal limbo, where universities are unsure whether to follow the old rules or the new ones. Specifying the manner of inquiry for fee violations under Section 12A requires a specific regulation. Because these are complex legal procedures, the delay in notifying them often allows errant colleges to continue charging capitation fees while the procedure for inquiry remains stuck in the drafting phase. As capitation fees violation may cause lot of frauds and students may become victim of such loot, such specific regulations are required at war footing, but till this date no such rules specifically dedicated to inquiry in violation of capitation fees are in force. Such kind of matters may include criminal angle in investigation hence such strict regulation are required.
Constitutional Validity and Ultra Vires: Section 26 is frequently challenged in High Courts and the Supreme Court regarding the boundaries of delegated legislation. Under Entry 66 of List I, the UGC can set standards. However, when a Section 26 regulation, like the minimum qualifications for teachers under Clause (e) conflicts with a State University’s own Act, it leads to constitutional friction. UGC Regulations prevail over State Acts in matters of standards, but this remains a point of constant litigation.[1]A regulation is ultra vires if it goes beyond the scope of the Act. For example, if the UGC uses Clause (g) i.e. co-ordination of work, to mandate student union election procedures a matter of internal governance, it may be challenged as exceeding the power to maintain academic standards. While the Commission can give retrospective effect to regulations, it cannot prejudicially affect the interests of any person. In P. Suseela v. UGC, the court scrutinized whether changing NET exemptions retrospectively was a valid exercise of power or a violation of Article 14 i.e. Right to Equality.[2]
Room for Misinterpretation: The broad and overlapping language of Section 26 clauses creates significant Gray Areas. The Act does not define what a standard is. Does it include the number of toilets in a college or only the quality of the syllabus? The UGC has interpreted standards so broadly that it now regulates almost every aspect of university life, leading to regulatory creep where administrative micro-management is disguised as academic standards. The use of the word ordinarily in relation to teacher qualifications suggests there under Clause (e) is room for exceptions. This ambiguity is often exploited by universities to appoint underqualified individuals by claiming extraordinary circumstances, leading to inconsistent quality across institutions. Regulating the scale of fees is a highly sensitive area. Misinterpretation often occurs regarding whether fees includes hostel charges, mess bills, or development funds. This allows private colleges to bypass the scale of fees regulation by inflating non-tuition costs.
Colonial Era Policy and Irrelevance: Section 26 embodies a Command and Control model that is increasingly irrelevant in the age of global education. Section 26 seeks to define minimum standards Clause (f) that apply to a tiny rural college and a massive metropolitan university alike. This one-size-fits-all approach is a colonial legacy that ignores the diverse needs of India’s states. Modern education systems favor Graded Autonomy over the rigid Regulation-by-Gazette model of 1956. Many Clause (g) regulations still focus on physical facilities land size, library books. The requirement for previous approval Sub-section (2) is a colonial-era safeguard to ensure the Native academics did not pass rules that contradicted the Government’s agenda. In a truly autonomous system, a specialized regulator like the UGC should have the power to notify academic regulations without seeking permission from a non-academic Ministry.
[1] Annamalai University V. Secretary to Government, Information and Tourism Department, [(2009) 4 SCC 590]
[2] P. Suseela & Ors. Vs. Univ. Grants Commn. & Ors. [8 SCC 129]
