The Struggle to Save the JNU Act – The Student Standing Counsel’s response to UGC 2016: Pratiksha Baxi

Guest post by PRATIKSHA BAXI

The growing global mistrust and derision of the intellect and all that is the intellectual, is a political trd that displaces reason, method, contemplation, experiment, reflexivity and critique as valued traits in education. This politics colonises the University Grants Commission (UGC) in specific ways. Unlike 2008-9 when the UGC was mindful of the autonomy of the University, the UGC now is made to mandate every University to follow its anti-intellectual policies and surrender academic autonomy. The UGC has been used to put in place a repressive apparatus that is emptying out Universities of reflexivity, critique and contemplation on which are built standards of excellence. With the 2016 UGC Regulation on minimum standards for MPhil and PhD (in effect since 5 July 2016),[1] the audit culture of the UGC, has now been hijacked to empty out universities of research scholars, literally.

Jurispathic Interpretations of the JNU Act

The JNU administration in its exceptional intimacy with the MHRD speaking through the so-called mandatory regulations of the UGC has announced its new admission policy,[2] foundationally based on “jurispathic” (to use Robert Cover’s term) interpretations of the JNU Act, one that hollows out the JNU Act.[3] The process of arriving at the admission policy of 2017 is based on a series of statutory and procedural irregularities, after an oddly secretive process of seeking of clarifications from the UGC. Autonomy stood surrendered when the JNU administration sought clarifications from UGC on how to uphold the constitutional provisions on equality, affirmative action and even its intake,[4] and in the ultimate analysis, UGC 2016 trumps the JNU Act. 

UGC 2016 entered the agenda of the now famous 141st Academic Council meeting in its adjourned Part B meeting in October 2016. This regulation was not circulated to Schools and Centres for comments and suggestions, before listing it on the agenda.  The Academic Council has two parts—A and B.  Part A includes representations from the student elect who have a statutorily right to participate in the formulation of policies that impacts the student body including admissions and reservations. Matters relating to students, especially admission policy, have always been deliberated in Part A of the Academic Council—wherein Statute 15 of the JNU Act accords elected students the statutory right to participate in the academic affairs of the University. The JNU Act specifies that students elected to the Academic Council cannot be present when the AC considers (a) faculty positions, recruitment, conditions of service and academic freedom; (b) actual processes of evaluating academic performance and merit of students. The predecessor to UGC 2016 was also discussed in Part A of the 126th Academic Council in 2009. Surely it is a matter of pride that students have this statutory right and exercise their academic freedom without fear or threat. Very few universities, if any, concede such rights to students and we, as faculty are privileged to learn from our students how to make our university an inclusive, equal and dignified experience. This is an ongoing process—and we have much to learn from our institutional history. 

The making of the New Normal

Colleagues in the Academic Council and the teachers association (JNUTA) have repeatedly held that the 141st AC (Part B) meeting did not deliberate the Regulation—and there was no clarity on how the UGC regulation could be implemented, since by the University’s own admission, UGC needed to offer clarifications first. The 141st Academic Council, Part A approved intake for admissions in 2017-2018. Intake is determined at the Centre level and then approved by the Academic Council as per the Statutes. The AC also discussed the reduction in viva marks for entrance examination to reduce the potential of discrimination and bias from 30% to 15% following the Nafey Committee report. Despite written dissent by a few EC members the 141st minutes were passed by the Executive Council. Feedback from the AC members on the 141st minutes was not solicited. The UGC regulation was now deemed to be an Ordinance. Yet it is the Academic Council (AC) alone that can make Ordinances on academic matters—and the Executive Council must ensure that the Academic Council has indeed deliberated and approved an Ordinance. The checks and balances in the JNU Act allows AC members to requisition an AC meeting if an Executive Council (EC) passes an Ordinance not in keeping with the JNU Act and accords the Visitor the power to annul Executive Council proceedings.

In the 142nd AC meeting, the minutes of the 141st meeting were passed amidst protests by members of the Academic Council. From accounts of colleagues in the AC, we learnt that the minutes were cursorily called out, as “passed, passed”. Students who protested were suspended and teachers who were issued a collective show cause notice, following the JNUTA’s call for a one-day strike. The show cause notice raised the spectre of CCS Rules, and five teachers were subsequently threatened with enquiries for making speeches on the adverse impact of the UGC Act evoking an inapplicable 20m rule, which proscribes where certain kinds of protests can take place.

The intake that was already approved now had a caveat that these were subject to the 2016 UGC guidelines. The matter now referred to a Standing Committee of Admissions, wherein again objections about statutory violations about the very adoption of the UGC regulations were ignored. In short, the powers of the Academic Council were delegated to the standing committee, the Executive Council and ultimately to various committees of administrators, without bring the matter back to the Academic Council.

A new admission policy was announced—and an unnecessary crisis was created resulting in protests on and off campus and desperate appeals to the visitor. The protests then were a created by the usurpation of the powers of the Academic Council—and while debates may continue on what kind of protest is legitimate—the signal that was sent that the JNU Act could be violated with impunity by taking recourse to the argument that the UGC regulation is mandatory. The bottom line is that it is the faculty and students who make the Academic Council and the Academic Council must ordain all academic matters including admission, yet the statutory power and the jurisdiction of the Academic Council stands trumped by the executive interpretation of the UGC Regulation of 2016. And now we must read letter and verse of the JNU Act, to prove the clause-by-clause erosion of our way of life.

Computing Negative Vacancies

On 7 February, a circular informed all faculty members that the UGC regulation of 2016 was adopted and as per clause 6.5 of the Ordinance (now enacted presumably by JNU), there was a need to work out “vacancies” for the academic year 2017-2018.  Yet clause 6.5 of the UGC regulation had been listed as ‘an item to be discussed for inclusion’ in the 142nd AC minutes. It seemed as if a “magic trick” had been used to transform an item to be discussed for inclusion (perhaps with the UGC?) into a clause of an Ordinance. The JNU Act had unravelled—a new clause in a new ordinance had taken birth in a circular.

The two tables, as per schools and individual faculty, listed the number of students supervised in MPhil and PhD (as if these are de-linked programs) now uploaded on the JNU website were made public. Anyone on the World Wide Web could go to check out each faculty’s vacancies and negative vacancies. They could also, if they had nothing better to do, check out how many students, category wise, each faculty member had supervised. And as we struggled to make sense of the “tentative list” which did not include the figures of the 2016 batch, we were asked to reply in seven hours and informed if Centres/faculty did not send a response, it would be assumed that ‘the concerned centre had no correction to make’.

The shock induced by the lists uploaded was palpable as one walked around one’s neighbourhood pursuing ordinary chores with a weary heart. Many of my neighbours stopped to lament the new vocabulary of “vacancies” that would wreck havoc on courses many have spent years building lovingly. There are many faculty members, irrespective of academic or ideological perspectives, who are deeply unhappy that their pedagogic and academic interests are altered by an upload on the JNU website. Many are not too vocal perhaps due to the show cause jurisprudence that now stands fully entrenched in JNU. While there are many sensible and academically sound ways of allocating supervision, the strange idea of vacancies—a category that is not specified by any statute—of allocating supervisors mechanically, without any consideration of research topic and expertise frankly seemed inane. And created stress and anxiety among students, especially as the batches from 2014 to 2016 who remain desperately worried about their academic futures.

The new language of “vacancies” indicated that a wait list would be prepared to assign students to supervisors as and when there was a vacancy. Nor did the category wise classification of students against each faculty make any sense, unless the design mandated the creation a waitlist for each faculty with negative vacancies, and then the plan were to draw a roster as per reservations. It all remains unclear. What was clear was the grave potential of annihilating the academic coherence of the integrated MPhil and PhD program; adversely impacting the affirmative action policy of JNU, reducing intake and utter confusion about what would happen to batches from 2014 to 2016 who were otherwise assured a PhD if they make their grades. Thereafter, direct PhD admission stood cancelled and re-advertised.[5] After the deadline to clarify the matter of vacancies lapsed, protests inhabited the administrative block—and many questions deserved reasonable answers.  However, the response to the protests followed in the shape of a new admission policy.

Tweeting the New Admission Policy

JNU’s Director of Admissions (DoA) in a surprisingly and somewhat bold move revealed the secret of the UGC Regulation over the weekend. In his letter, sent at midnight of 12 February 2016, he informed a rather perplexed JNU community that ‘the intake in M.Phil./PhD programmes will be calculated as per the 2016 UGC Gazette Notification’. Surely one may argue that it is commendable that a sleepless administration, which works tirelessly from its office now in the Convention Centre and that too on a weekend to implement the mandates of the UGC, delivers a specific kind of anti-intellectualism at midnight. This was accompanied by a bewildering style of the delivery of the new admission policy, now posted as a tweet by the DoA. In the digitally saturated new JNU, ordinances are tweeted. Perhaps the written text of the UGC “clarification” is not dramatic enough to be posted by the official twitterati. But perhaps it is encouraging for RTI activists would find more documents posted on twitter rather than on the forlorn RTI corner on the JNU webpage.

Vacancy, not Intake and Intake, not Vacancy

On 16 February 2017, faculty members woke up to find an email addressed to Chairpersons of all Centres asking them to ‘draw the intake’ of the ‘Centre/School as per clause 6.5 of the UGC Regulation 2016’ by 20.2.2017, else ‘it will be assumed that the concerned centre is not willing to take new intake for the A.Y. 2017-18’.  The deadline of one working day to hold a faculty meeting to discuss the circular was perplexing. Surely the statutes are clear that any decisions on intake cannot be delegated to the Chairperson—the faculty committee must meet to recommend intake and then forward the same for approval of the Academic Council.

Apart from the temporality of the administration, a schedule that no one understands anymore, we were told that the vacancies uploaded did not indicate intake for 2016-2017. Rather these reflected the present positions/intake of MPhil/PhD students sent by Centre and Schools. Blaming Centres for not sharing data on how many MPhil/PhD students the University has on its rolls and at what stage of supervision, the administration claimed that when they asked Centres/Schools/Deans/Chairpersons to send correct information back, they received ambiguous and inclusive information—it seems some sent information, some worked out their own intake and others sought clarifications.  Surely a uniform method of determining intake must first be announced before collating data through the appropriate authority.

Ten days into the protests, we were informed about ‘a meeting of the Rector-I, Director of Admission, A.R. (Evaluation), A.R. (Admission) and System Analyst (Sh. S. Venkatesan) was held on 15/2/2017 at Convention Centre, due to current students agitation and blockade/occupation of the admin building’. These gentlemen worked on a method to determine ways of implementing intake as specified by the UGC 2016.

The first clarification was that the students registered/admitted in 2016-2017, inclusive of the transition period between 5 May 2016 (the date of the Gazette) to 7 October 2016 (the date of the AC meeting) were to be treated as “admitted”, with the caveat that “other clauses of the Regulation need to be adhered to”. Ignoring thereby the UGC letter to JNU (dated 27.9.2016), uploaded on the link titled “information to MHRD” on the JNU website which reveals that ‘the Regulations become operational from the date of their publication in the Gazette of India as such these Regulations are in force from 5th July, 2016’.  The so-called transition then must begin on 5th July, for the UGC regulation did not exist legally in May 2016. We could of course decide to be forgiving of administrators who do not really understand legality.

But then nor did they quite comprehend that clause 13.2 was recorded as an “item to be discussed for inclusion” in the 142nd AC meeting minutes.

13.2 Prior to the actual award of the degree, the degree awarding Institution shall issue a provisional Certificate to the effect that the Degree has been awarded in accordance with the provisions of these UGC Regulations, 2016.

Yet, the batch of 2016 in the MPhil/PhD program is now informed that while they will be “recognized” as admitted, they would get a provisional certificate, prior to the actual award of the degree, only if they adhere to “other” clauses of the regulation. The batch of 2016 is not told what these other clauses may be—and whether or not they would be assured of a degree at the end of their coursework, let alone assured of a PhD, if they make a grade.

Secondly, we are told that no retired faculty, part time faculty or faculty without PhD would be allowed to supervise. While this provision caused many Universities to reduce intake drastically, however, in JNU, regular faculty supervise students.  It simply means that a faculty member would have to give up supervision a few years before her retirement, unless one of her colleagues is willing to take on the student after she retires, provided she has vacancies. And those who are close to retirement are allowed maximum number of students to supervise as professors.

Thirdly, those students who get one extra year to finish their PhD theses under the 9b rule, or those who are in their last year of MPhil will be considered as “possible” vacancy, for the purpose of calculating intake.

Fourthly, students who are registered under Ph.D. programmes and who are in last semester of their programme will be considered as vacant seats. In other words, those who are about to finish their dissertations will not be counted to determine the vacancy of supervisor.

Finally, the students registered in the 4th semester of the integrated MPhil/PhD programmes, who are writing MPhil dissertations and those registered as provisional PhDs would be considered “continuing students”. And the 2016 batch in the MPhil programme would be considered “continuing students”.The most breathtaking declaration that follows is that ‘the faculty members who have excess number of students, as per clause 6.5 of the UGC Regulation, 2016, may continue with the present number of students as supervisor. However, he/she can take new students only after the number comes down to the limit prescribed during the limit prescribed under the above mentioned clause.’ It had not perhaps even occurred to any faculty member that there was even the possibility that we would not be able to continue supervision of our doctoral students, even if the number of our students far exceeded the numbers prescribed by the UGC. And we are still not sure what happens if a de-registered doctoral student, re-registers to submit her thesis.

UGC 2016 marks a departure from UGC 2009—a critical departure that was not allowed deliberation in JNU’s Academic Council in 2016. The 2009 UGC Regulation recommended that all Universities should ‘lay down the criteria for the faculty to be recognized as Research Supervisor both for M.Phil. and Ph.D. Programmes’. Most importantly, the 2009 Regulation gave recognition to the Integrated MPhil/PhD program when it stated that ‘the admission to the Ph.D Programme would be either directly or through M. Phil Programme’. It recommended that all Universities institute on ‘annual basis, a predetermined and manageable number of M.Phil. and doctoral students depending on the number of the available eligible Faculty Supervisors’.

The 2009 UGC recommended that ‘a supervisor shall not have, at any given point of time, more than Eight Ph.D. Scholars and Five M.Phil. Scholars’. Further the UGC stated that ‘the allocation of the supervisor for a selected student shall be decided by the Department in a formal manner depending on the number of student per faculty member, the available specialization among the faculty supervisors, and the research interest of the student as indicated during interview by the student. The allotment/allocation of supervisor shall not be left to the individual student or teacher’.  In 2009, the UGC respected the autonomy of the Universities.

At the same, the 2009 guidelines emphasized that reservations, including the requirement of increased intake of OBC students, must be followed. And in its wisdom the 126th AC resolved ‘to implement in a phased manner the guidelines on number of MPhil/Ph.D. students with each faculty member till the recruitment as per sanctioned strength is completed’. However, now intake is calculated per actual faculty, rather than as per sanctioned strength.  The JNU administration does not have so far a convincing response to the question of to the mandated expansion of seats after the OBC reservation was implemented from 2008-2011. The students have time and again referred to institutional and legal histories to make this point. And institutional and legal history also tells us that UGC regulations had a part mandatory and part directory character (see Kalyani Mathivanan v. K V Keyaraj and Ors, Supreme Court of India, dated 11 March, 2015).[6]

The Student Standing Counsel

In fact, students of constitutional law would be surprised to learn that it is student activism that has brought manifold constitutional gifts to JNU. It is student litigants who have corrected the admission policy when it has acted with indifference to constitutional provisions of equality.  It is students who often challenge arbitrary acts of power with the demand for rights. Consider the history of the enactment of The Central Educational Institutions (Reservation in Admission) Act, 2006 (5 of 2007) [dated 4 January, 2007], following which directions were given to all Universities to implement 27 per cent reservation in admissions for Other Backward Classes (OBCs).

Following Ashoka Kumar Thakur, JNU implemented the OBC reservation over a period of three years, in the backdrop of protest and litigation.  A litany of cases followed. In 2009, P.V. Indiresan (2) corrected JNU’s interpretation of P. V. Indiresan (1) regarding how to fix the minimum percentage of marks for OBC candidates; in 2010 Apurva & Anr. v. Union of India & Anr corrected the question of relaxation to be given to qualifying marks for OBC candidates and finally in 2016, Gautam Sharma unveiled the lack of constitutionality of the admission procedure followed by JNU. The DHC then held that ‘the policy of JNU, whereby the OBC candidates are put at par with the General Category candidates, in respect of minimum eligibility marks required to be obtained, vis-a-vis the base-degree, is declared unconstitutional and contrary to Article 14 of the Constitution’.  In other words, the performative aspects of student politics replete with sounds of drums, songs, and slogans or the occupation of the university by marches or strikes have been equally demosprudential—i.e., wherein the student litigant in court is but one arena of entrenching constitutionality in the governance of university.

It would surprise teachers of law, lawyers and judges to find that the Supreme Court judgment of Ajay Hasia was a manifesto, in the students’ demand, to reduce viva marks from 30% to 15% to tackle potential discrimination in a viva voce entrance examination in the 141st Academic Council. This kind of politics is demosprudential such that courts and their rulings are used to entrench democratic governance in universities. Moreover, this kind of politics creates an epistemology of solidarity—one that is pedagogic—where students teach transformative constitutionalism to the faculty. This form of legal literacy is not one received in the chambers of lawyers or through standing counsels of Universities—rather its a specific kind of human rights education that deserves recognition. If students elect had been asked for legal opinion on the UGC regulation of 2016, the University would not have to ask UGC for clarifications on matters constitutional. And indeed, they have been at pains to explain that the admission policy delivered at midnight and as a tweet is not constitutional, if it links intake to the UGC 2016 the new limits set on the student-supervisor ratio. If the student body were the standing counsel of JNU they would have advised the University not to surrender its autonomy to the UGC by seeking clarification on intake or how to remain committed to constitutional provisions on reservation.

They have advised the University as “shadow” student standing counsels that “the present number of seats in JNU has been fixed as part of the implementation of OBC reservation and the concomitant expansion of seats, infrastructure and faculty (during 2008-10), mandated by the 93rd amendment of the Constitution”. The increased intake to implement the CEI Act of 2006 that mandated an increase in seats is perhaps one of the reasons why some faculty may have more students, however this has not lowered rather it has enhanced the standards of excellence as certified by the Visitor’s award to JNU recently. The student standing counsels advice that the new admission policy of 2017 not only violates the JNU Act and the CEI Act of 2006, it now falls foul of the UGC itself, which binds all Central University to the reservation policy. Hence, a reduction of intake produces an urgent constitutional question—can intake be reduced in violation of the JNU Act, the CIE Act and the UGC’s own regulation of 2016?

The student standing counsel further point out that the intake/offer can only be determined by the Centres and Schools which is then approved by the Academic Council. This means there cannot be seat cuts or reduction in intake by the decisions of the Executive Council without the consent of the Academic Council.

The student standing counsel has argued that visions of “dynamic” admission would hollow out constitutional provisions which mandate that higher education must reach out to all especially those structurally and socially excluded from access to higher education. The replacing of the annual admission of a batch of MPhil/PhD students to a waitlist of individual students, who would be allotted a seat when a supervisor is available, is in violation of all policies on inclusive higher education—for the scope of applying the reservation policy would now be applied to individuals on a wait list instead of a batch of students every year. Ironically UGC 2009 used the JNU model of annual admissions, with a pre-determined number, of doctoral students, to be admitted annually applicable to all Universities. Yet now the idea of “dynamic vacancies” demolishes the integrated MPhil and PhD program, which the 2009 UGC Regulation recognised. The course work for MPhil and PhD would make scarce academic sense, if admissions to the program were to happen twice a year, depending on the vacancies of supervisors. 

The Question of Access

Access to higher education especially for students from marginalised backgrounds, would stand annihilated by UGC 2016. This is not just JNU’s story—but research scholars from Kerala, Orissa, Maharashtra and Uttar Pradesh, among others, have been hit by seat cuts/reduced intake. The story of how Shivaji University[7] had to reduce intake by 90% last year precedes the JNU story. Research scholars in Kerala have moved the courts in 2016. Universities in Orissa were hit by reduced intake in 2015.[8] Yet the JNU protests have been exceptionalized, by claiming that no other University has been hit by the colonisation of the UGC. Each of these Universities now adopts the language of vacancy—the new normal to describe reduced intake.

The student standing counsel in JNU point out that reducing choice of supervision to vacancy without any consideration of expertise and research area is not only anti-intellectual but also curtails academic freedom. They point out that the delegation of power to determine which courses a student may take in an MPhil or what her topic may be at the beginning of a course or according excessive powers without any redress to an advisory or an ethics committee, amounts to unreasonable control of research.

New Academic Hierarchies

If the student standing counsel were to address, their rights as future academics then they would argue that the differential distribution of students to teachers according to rank (as versus a range irrespective of hierarchy) would be more equitable and dignified. The UGC 2016 cap on supervision reduces each specialisation and passion to a statistic. UGC 2016 not only diminishes the very definition of supervision but also introduces a hierarchy that has hitherto not existed between supervisors. The UGC now accords 1 MPhil student and 4 PhD students to a Assistant Professor, 2 MPhils and 6 PhDs to an Associate Professor and 6 MPhil and 8 PhD students to a Professor.

An Assistant Professor is allowed to supervise only 1 MPhil student—and yet it is Assistant Professors who struggle the maximum to get to the next stage of promotion, as they stand hyper-regulated the API system imposed requirements, unlike the professors who get maximum supervision. The API demands that Assistant Professors supervise more, rather than less. Yet the same UGC does not allow them to supervise more than 1 MPhil student. Student standing counsel would argue that this arbitrary cap on assistant professors not only creates a disincentive but also is an unreasonable restriction on their right to teach and supervise or their right to profess their profession.

Student standing counsel could also point out that the UGC introduces a second kind of cap on supervision. The requirement that teachers should have a minimum mandatory publication in refereed journals, and these refereed journals are recognised as such only if they are be listed on the UGC website. If an Assistant Professor published in an internationally recognised referred journal and it is not listed on the UGC website, she would be dependent on her University recommending the journal as worthy of UGC’s attention. Further such move disadvantages vernacular and indigenous journals and existing list posted on the UGC website depends heavily on one portal driven by market logic and privileging one kind of knowledge production, apart from listing predatory journals.[9] The student standing counsel would argue that the UGC regulations prescribe “minimum standards”, JNU can supplant or supplement minimum standards—there is nothing mandatory about implementing that which is minimum.

Sadly, the use of executive power to quell the epistemology of solidarity that emerges from embodied knowledge that an inclusive vision of a University heralds by inaugurating, consolidating and propagating intellectualisms from below, as it were is writ large in the brief of UGC 2016. Any reasonable resolution of this impasse would be to return the conversation to the Academic Council within the parameters of the JNU Act and with constitutional responses to the questions posed by the shadow standing counsel. The absence of a constitutional response to these questions generates another kind of response, which rejects the demosprudential potential, one that is deeply wounded by the broken promise of law—and suffocated by a deep sense of betrayal when law is only evoked to unleash repressive power over the student body. It is time that the wounded affective economy produced by the broken promise to the JNU Act and constitutional law is healed, and urgently so, by taking the conversation back to where it belonged in the first place—the 142nd Academic Council, Part A.











2 thoughts on “The Struggle to Save the JNU Act – The Student Standing Counsel’s response to UGC 2016: Pratiksha Baxi


    The struggle against the authorities adopting anti-student policies should continue till the original reservation policy and simpler procedures of admission of students is restored

  2. Pingback: UGC 2016 Regulation and the Future of Higher Education in India | Live Law

We look forward to your comments. Comments are subject to moderation as per our comments policy. They may take some time to appear.

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s