~ This post has been authored by Mohd. Fahad Ansari and Avnee Byotra.
Introduction
Recently, in State of West Bengal v. Dr. Sanat Kumar Ghosh (Sanat Ghosh), the Supreme Court established a Search-cum-Selection Committee, led by former Chief Justice UU Lalit, to oversee the appointment of Vice-Chancellors for about 37 state-funded universities in West Bengal. This decision reversed a previous ruling of the Calcutta High Court, which had endorsed the Chancellor’s appointment of interim Vice-Chancellors without consulting the State Government. While the Court’s intervention is commendable, the underlying issues remain unresolved.
Scrutiny of the Search-cum-Selection Committee: Court’s Directives and Legislative Challenges
The Court established a Search-cum-Selection Committee to form either separate or joint committees for each University based on their academic disciplines. The committee is responsible for selecting four qualified experts from the panel to shortlist potential Vice-Chancellor candidates. It must then provide a list of at least three names for each University.
The Court not only established the committee, but also provided a list of experts for the Chairperson to select from. It outlined specific procedures to follow once the committee had made its recommendations. Furthermore, the Court declared that if the Chief Minister objected to any of the proposed names and the Chancellor did not accept these objections, or if the Chancellor had reasons to oppose certain names, the Court would make the final decision. Consequently, the Court would appoint the Vice-Chancellors based on the input from both the Chief Minister and the Governor.
It is clear that the Court’s comprehensive guidelines are subject to criticism, as they involve the judiciary in the selection of Vice-Chancellors for state universities. The Court acknowledged that this detailed approach might be seen as excessive judicial intervention, but defended its actions with several justifications. Firstly, persistent disagreements between the Chief Minister and the Governor created ongoing conflicts. Secondly, there was no applicable legislation since the previous framework was invalidated by the High Court in Anupam Bera v. The State of West Bengal case (Anupam Bera). Thirdly, the situation was exacerbated by the absence of regular, interim, or ad-hoc Vice-Chancellors. Fourthly, the Chancellor had appointed individuals without academic backgrounds to perform Vice-Chancellor’s duties. Fifthly, both the Chief Minister and the Governor had agreed upon the list of experts, showing that the judiciary was not imposing its own judgment. Lastly, the Court aimed to ensure transparency, fairness, and the appointment of highly competent and principled individuals to lead the universities effectively.
While the judicial intervention in this case might be defended due to its urgency and the lack of existing legislation, such an approach was not strictly necessary. The West Bengal Universities Laws (Amendment) Bill 2023, which establishes a comprehensive legal framework for 29 state universities, addresses the issues raised in the Anupam Bera case. It also includes the provision for a UGC nominee on the Selection Committee and complies with constitutional requirements. Despite being introduced on August 1, 2023, this Bill has not yet been approved by the Governor. This delay is not unprecedented; a similar bill namely West Bengal Universities Laws (Amendment) Bill 2022, which proposed replacing the Governor with the Chief Minister as Chancellor of state universities, also remains pending.
The Court knew about the pending bill because it had asked the counsel to update it on the amendments and related provisions. Instead of creating its own Committee, the Court should have ensured that the Governor fulfilled his constitutional responsibilities. As established in State of Punjab v. Principal Secretary to the Governor case, the Governor acts as a symbolic figure rather than a direct representative of the electorate, and thus cannot indefinitely delay action on Bills passed by the State Legislature. The Governor must either approve, reject, or refer the Bill to the President, according to Article 200 the Constitution’s requirement for prompt action. Rather than setting up a new Committee and issuing detailed guidelines, the Court should have directed the Governor to expedite his duties, as was done in similar cases in Punjab and Kerala. In April 2024, the Supreme Court had already issued a notice regarding the Governor’s delay on the 2022 Bill, presenting a prime opportunity for the Court to address the issue directly instead of venturing into new and complex areas.
Uniformity vs. Statutory Authority: The Court’s Application of Article 142
The Court established the Search-cum-Selection Committee under its authority to ensure justice as per Article 142 of the Constitution. It recognized that the legislation for the 37 state-aided universities varied, particularly regarding Committee composition. Nonetheless, the Court utilized Article 142 to mandate a uniform Committee structure across all universities, overriding the specific statutory procedures and compositions outlined by individual statutes. For example, Section 8(1) of the Calcutta University Act 1979 specifies that the Vice-Chancellor is appointed based on the Senate’s unanimous recommendation, without reference to a Selection Committee.
Although the Court argued that this approach would simplify logistics, reduce confusion, and increase transparency, it exceeds the authority granted under Article 142. Precedent establishes that Article 142 cannot be used to override or issue orders that contradict substantive statutory laws. This principle was initially articulated in Prem Chand Garg v. The Excise Commissioner case, where the court noted:
“An order which this Court can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws.”
In recent rulings, including High Court Bar Association v. State of Uttar Pradesh and Shilpa Shailesh v. Varun Sreenivasan, two constitution benches clarified that while Article 142 allows the Court some flexibility with procedural rules, it cannot alter the substantive rights granted by statutes.
One might argue that changing the composition of a Selection Committee is merely a procedural matter that could be adjusted using plenary powers. However, the Supreme Court has consistently invalidated Selection Committees formed contrary to state legislation, citing violations of UGC Regulations. Cases like Gambhirdan K. Gadhvi v. State of Gujarat and Professor (Dr.) Sreejith P.S. vs. Dr. Rajasree M.S. illustrate this. In the current case, the West Bengal Universities Laws (Amendment) Bill 2023, introduced to address such issues by including a UGC nominee—an amendment recommended by the High Court in Anupam Bera case—aims to remedy past violations. Therefore, the composition of a Selection Committee is not merely procedural but crucial for compliance with UGC standards.
Given this context, the Court’s use of plenary powers under Article 142 is unwarranted as it undermines the substantive rights of Vice-Chancellors to be appointed by a robust Selection Committee mandated by statute.
Conclusion
In summary, although the Supreme Court’s appointment of Vice-Chancellors via the Search-cum- Selection Committee represents a new approach, but it has also introduced numerous Constitutional issues. Instead of establishing its own detailed appointment process, the Court could have compelled the Governor of West Bengal to fulfil his constitutional role concerning state legislation. The Court exceeded its authority under Article 142 by creating the committee and issuing these guidelines, as they infringe on the substantive rights of Vice-Chancellor candidates. Therefore, while the intention was to clarify and ensure fairness, the approach raises questions about both the process and its outcomes.