Federalism on Trial: The Battle Over University Governance

CHENNAI: India’s higher education system has become the unlikely arena for a constitutional showdown of far-reaching significance. What appears as a bureaucratic tussle over Vice Chancellor (VC) appointments masks a deeper and graver contest – between federalism and creeping centralisation, between plenary State legislative authority and the overreach of Central subordinate legislation, and between academic freedom and bureaucratic control. The outcome of this contest will shape not merely university governance, but the very character of Indian federalism.

Universities in limbo

Nowhere is this conflict starker than in Tamil Nadu where 11 out of 20 State universities remain without VCs, some for over a year, crippling university administration. The deadlock arises from a stand-off between the Governor and the State Government over the composition of VC Search Committees.

The Governor, as ex-officio Chancellor under State University Acts, insists on including a nominee of the University Grants Commission (UGC) in the Search Committee, citing Regulation 7.3 of the UGC Regulations, 2018. The State government, however, insists on adhering to its University Acts, which typically provide for one nominee each of the Chancellor, Syndicate, and Senate. It views UGC involvement as an infringement on State autonomy.

Similar stand-offs plague Kerala and Punjab revealing that this dispute has pan India ramifications.

Fractured judicial landscape

Conflicting Supreme Court rulings have deepened the confusion. In Annamalai University vs Secretary, Information and Tourism (2009), Gambhirdan K Gadhvi vs State of Gujarat (2022), State of West Bengal vs Anindya Sundar Das (2022), and Prof Sreejith PS vs Dr Rajasree MS (2022), one set of two-judge Benches has endorsed the Governor’s position that UGC Regulations override State University Acts where conflicts arise.

On the other hand, in Jagdish Prasad Sharma vs State of Bihar (2013), Kalyani Mathivanan vs KV Jeyaraj (2015), PJ Dharmaraj vs Church of South India (2024), another set of two-judge Benches has supported the State government’s view that UGC Regulations are advisory unless adopted by the State.

The doctrine of stare decisis – ‘to stand by precedent’ – is a cornerstone of judicial discipline, ensuring consistency and certainty in the law. In Central Board of Dawoodi Bohra Community vs State of Maharashtra (2005), a five-judge Constitutional Bench of the Supreme Court reaffirmed that the decisions of a Bench bind all smaller and co-equal Benches. If there is doubt about the correctness of a decision by a co-equal Bench, the matter must be referred to a larger Bench.

Yet, no larger Bench has been constituted to resolve these conflicting interpretations by two-judge Benches, leaving State universities in a twilight of uncertainty and the federal fabric frayed at the edges.

Constitutional, legal framework

Under Article 246(1) of the Constitution, Parliament has exclusive competence to legislate on matters in the Union List. Under Article 246(2), both Parliament and State Legislatures can legislate on matters in the Concurrent List.

The Union List enjoys constitutional primacy over the Concurrent List due to the non obstante clause in Article 246(1). In cases of conflict (repugnancy) between Central and State laws on the same Concurrent List subject, the Central law prevails by virtue of Article 254(1).

The UGC Act, 1956, enacted under Entry 66 of the Union List, empowers the UGC to maintain academic standards and coordinate higher education nationally. However, it is silent on the appointment of VCs or the composition of Search Committees. In contrast, State University Acts, enacted under Entry 25 of the Concurrent List, explicitly govern VC appointments and the composition of Search Committees.

The maxim Expressio unius est exclusio alterius is a principle of statutory interpretation which asserts that the express mention of certain things in an Act implies the exclusion of those things not mentioned. Legislative silence is not inadvertent but intentional. The UGC Act explicitly delineates the various powers and functions of the UGC, but omits any mention of VC appointments or Search Committee composition, reflecting Parliament’s conscious decision to leave governance matters to the States. With no overlap, much less conflict, between the UGC Act and State University Acts on this subject, the question of the former prevailing over the latter under Article 246(1) does not arise.

UGC’s brazen overreach

Subordinate or delegated legislation – such as rules, regulations, and by-laws - is made by authorities below the Legislature to give effect to and operationalise the provisions of a plenary law. Rules are framed by the government, regulations by statutory bodies, and by-laws by local authorities.

UGC Regulations are delegated legislation framed by twelve bureaucrats of the Commission under Section 26 of the UGC Act, 1956. It is a settled principle of law that delegated legislation must remain within the four corners of its enabling statute. It must dance to the tune of the statute, not compose its own symphony. What the UGC Act does not authorise, Regulation 7.3 – requiring a UGC nominee on VC Search Committees – cannot arrogate.

The UGC claims authority for Regulation 7.3 from Section 26(1)(e) of the Act, which empowers the UGC to prescribe qualifications for ‘teaching staff’, and Section 26(1)(g), which allows it to regulate standards and coordinate work or facilities in universities. This contrived argument collapses under scrutiny.

A VC is not ‘teaching staff’ within the meaning of S.26(1)(e). Across all University Acts – Central and State – the VC is classified as an ‘officer’ of the university, along with the Chancellor, Registrar, Controller of Examinations, and Finance Officer, and is part of the administrative hierarchy. Stretching the term ‘teaching staff’ to include the VC distorts both language and legislative intent. Similarly, the broad phrasing of Section 26(1)(g) cannot be twisted to confer authority over VC appointments - a matter on which the UGC Act is silent and State Acts are explicit.

Further, Section 12(d) of the UGC Act merely authorises the Commission to advise universities on maintaining standards. In University of Delhi vs Raj Singh (1994), the Supreme Court ruled that UGC Regulations are recommendatory, not binding. Universities may disregard them, though they risk losing UGC grants under Section 14. Financial coercion cannot transform advice into enforceable law.

Thus, Regulation 7.3 is ultra vires the UGC Act and void ab initio.

Moreover, the UGC’s own history betrays its opportunism: no regulation on VCs for the first 54 years (until 2010), a nominee introduced in 2010, withdrawn in 2013, reinstated in 2018, and expanded in the 2025 draft. If maintaining academic standards were the real concern, why such vacillation? The motive appears regulatory aggrandisement, not educational excellence.

History warns that great usurpations often begin with small encroachments. If the UGC, by mere regulation and without Parliamentary sanction, can prescribe VC Search Committees today, what prevents it from dictating the choice of VCs, languages of instruction, curricula, or textbooks tomorrow? Such a precedent arms unelected Central regulators with powers that even Parliament cannot exercise without due legislative process. Gradually, they could overrun vast fields in the Concurrent List, hollowing out the legislative competence of States and striking at the heart of constitutionalism.

Cannot override State university acts

Section 28(1) of the UGC Act, 1956 requires that Regulations be laid before Parliament for thirty days, during which Parliament may modify or annul them. In Annamalai University (2009), Anindya Sundar Das (2022), Gambhirdan Gadhvi (2022), and Sreejith PS (2022), two-judge Benches of the Supreme Court erroneously held that once laid before Parliament, these Regulations merge with the UGC Act and acquire the status of plenary law, rendering inconsistent State university laws void under Article 254(1). This interpretation is flawed for three reasons:

1. Delegated legislation does not merge with the parent Act: The Constitution, the General Clauses Act, 1897, or the UGC Act itself do not support the idea that delegated legislation merges with the parent Act once laid before Parliament. Binding precedents of Constitution Benches confirm the contrary.

· In Chief Inspector of Mines vs Karam Chand Thapar (1961), a five-judge Bench ruled that delegated legislation does not merge with the parent Act simply because it is laid before the Legislature; it always remains subordinate and separate. Even statutory language declaring rules to have effect “as if enacted in the Act” – a phrase absent in the UGC Act – is a legal fiction for interpretation, not legislative incorporation.

· Similarly, in Kerala State Electricity Board vs Indian Aluminium Co. (1975), another five-judge Bench reaffirmed that legislative laying is a mechanism for oversight, not a substitute for legislative enactment, as it lacks the formal assent of the President or Governor. It cannot cure ultra vires defects or imply ratification.

· Parliament’s scrutiny is akin to a teacher reviewing homework; it is not legislative alchemy that transmutes Regulations into Acts of Parliament. Hence, Section 28(1) cannot elevate UGC Regulations into plenary law or cure the ultra vires defect in Regulation 7.3.

2. Repugnancy applies only to conflicts between plenary laws: The very heading of Article 254 – “Inconsistency between laws made by Parliament and laws made by the Legislatures of the States – confines repugnancy to conflicts between plenary laws enacted by Parliament and State Legislatures. It does not extend to conflicts between Central subordinate legislation and State plenary laws. To hold otherwise is to wrest sovereignty from elected representatives and hand it to those who answer to no electorate. This distinction is judicially well-settled.

· In Ch Tika Ramji vs State of Uttar Pradesh (1956), a three-judge Bench of the Supreme Court held that a Union executive order (the Sugarcane Control Order, 1955), issued under the Concurrent List law (the Essential Commodities Act), could not override a State plenary law (UP Sugarcane Act, 1953). Such power rests exclusively with Parliament and cannot be delegated to an executive authority; any such delegation would be void.

· In Indian Express Newspapers v Union of India (1985), the Supreme Court ruled that subordinate legislation can be struck down if it violates its parent statute or any other statute. Similarly, in Kerala Samsthana Chethu Thozhilali Union v State of Kerala (2006), the Court ruled that rules must conform to their enabling Act and must not violate any other plenary law enacted by Parliament or a State Legislature.

3. Repugnancy under Article 254(1) requires both Central and State laws to occupy the same field within the Concurrent List. However, the UGC Act is enacted under Entry 66 of the Union List whereas State University Acts fall under Entry 25 of the Concurrent List. In such cases, any conflict is resolved by Article 246(1), which gives primacy to the Union List. However, as already noted, there is no conflict here, as the UGC Act is silent on the appointment of VCs.

Hence, the UGC cannot override plenary State laws through its regulations. Only Parliament, through valid Central legislation, can do so.

TN’s imperfect Act amendments

In 2022, the Tamil Nadu Legislative Assembly amended ten University Acts, transferring only the power to appoint VCs from the Governor-as-Chancellor to the State Government. This half-measure inexplicably retained the Governor as Chancellor, clashing with another mandate of UGC Regulation 7.3 that the Visitor/Chancellor shall appoint VCs. The amendments allowed the Governor to remain the titular head of State universities; nominate members to university Syndicates; nominate a member to the VC Search Committee; preside over convocations; and approve ‘university statutes’.

A better course of action would have been to fully displace the Governor. Tamil Nadu could have designated the Chief Minister as Chancellor (as proposed by Punjab and West Bengal), or an eminent public figure appointed by the State Government as Chancellor (following the model adopted by Telangana and proposed by Kerala).

Tamil Nadu must undertake a further amendment of the 10 University Acts to remedy this defect and end the current state of uneasy duality.

Predictably, the Governor reserved the amendment Bills for the President’s consideration under Article 201. The indefinite delay in assent prompted the Supreme Court – in State of Tamil Nadu vs The Governor of Tamil Nadu (April 2025) – to invoke its extraordinary powers under Article 142 and order ‘deemed assent’. Following this, Tamil Nadu notified the amendment Acts, and initiated the VC appointment process.

A questionable HC ruling

On May 21, 2025, a vacation Bench of the Madras High Court stayed the amendments, citing repugnancy with UGC Regulation 7.3 on two grounds:

· The absence of a UGC nominee in Search Committees,

· The vesting of appointment power in the State Government instead of the Chancellor.

The High Court’s reasoning fell short. It selectively relied on pro-UGC Supreme Court rulings, ignored contrary precedents, and overlooked both the UGC Act’s silence on VC appointments and the UGC’s purely advisory role as per the statute. It disregarded settled Constitution Bench principles that legislative laying does not merge delegated legislation with the parent Act or cure its ultra vires defects. It also ignored clear precedents holding that only a plenary Central law — not executive-made subordinate legislation — can override a plenary State law. Tamil Nadu, too, failed to mount a robust constitutional argument anchored in these principles and precedents.

Given the conflicting decisions of different two-judge Bench decisions of the Supreme Court on the interplay between UGC Regulations and State University Acts – and the fact that Tamil Nadu’s challenge to UGC Regulation 7.3 was already pending before the Supreme Court – judicial discipline warranted that the High Court refer the matter to the Supreme Court for authoritative adjudication rather than grant a premature stay.

A Constitution Bench must decide

Due to the doctrinal confusion, a definitive ruling by a Constitution Bench is imperative to:

• Reaffirm that delegated legislation remains subordinate and does not merge with the parent Act by legislative laying [Karamchand Thapar (1961); Kerala State Electricity Board (1975)]

• Declare that UGC Regulations are advisory unless States choose to adopt them [Sections 12 and 14 of the UGC Act, 1956; Raj Singh (1994); Jagdish Prasad Sharma (2013); Kalyani Mathivanan (2015); and P.J. Dharmaraj (2024)]

• Strike down Regulation 7.3 as ultra vires the UGC Act, 1956

• Reiterate that only a plenary Central law – not executive-made subordinate legislation – can override a plenary State law. [Ch Tika Ramji (1956); Indian Express Newspapers (1985); Kerala Samsthana Chethu Thozhilali Union (2006)].

Beyond these legal intricacies lies a larger, more enduring truth. Federalism is not a matter of administrative convenience, but a solemn principle. It is a shield against the centralisation of power, a safeguard for India’s diversity, and a recognition that liberty is best preserved when authority is distributed, not concentrated.

Let the Supreme Court, as the sentinel of the Constitution, reaffirm that federalism is part of its inviolable basic structure – to be defended against every encroachment, however slight, however stealthy.

(The writer is a former IAS officer of Tamil Nadu cadre and a former Vice-Chancellor of Indian Maritime University)