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JUDICIAL REVIEW OF ACADEMIC DECISIONS THESIS SUBMITTED BY S. GOPAKUMARAN NAIR FOR THE DEGREE OF DOCTOR OF PHILOSOPHY IN FACULTY OF LAW COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY KOCHI- 682 O22 MARCH 2010 CERTIFICATE This is to certify that this thesis entitled Judicial Review of Academic Decisions submitted by Shri. S. Gopakumaran Nair for the Degree of Doctor of Philosophy is the record of bona flde research carried out under my guidance and supervision in the School of Legal Studies, Cochin University of Science and Technology. This thesis, or any part thereof, has not been submitted for any other Degree. \ Y7?-/)_@//4/‘.01/4,/-\%’/L,/’(""‘; Cochin Prof. (Dr.) K. N. Chandrasekharan ' ' 21-12-2009 (Supervi ' eacher) DECLARAIION l do hereby declare that this thesis entitled Judicial Review of Academic Decisions is the record of bona fide research carried out by me under the guidance and supervision of Professor (l.)r.) K. N. Chandrasekharan Pillai, Dean, Faculty of Law, Cochin University of Science and Technology. I further declare that this study has not previously formed the basis for the award of any degree, diploma, associateship or other similar title of recognition. ,__,..»\/\/[___..» _________..____­ -- - H ‘M Q ,\ ‘ Cochin S. Gopakumaran Nair 21»V%q010 CONTENTS ChapterNo. A Particulars i Page No. PREFACE C C PCT i-v I INTRonI1oTIoN 1 _ 1-10 1.1 Background p p _ KL M l1.2 Scope and Objective of the Study _ 1.3T Methodology __ K p pp p_ 1.4 Scheme ofpthe Study p II HQOCTRINE Q!iTpJUDICIAL_REVIEW p _ W1 1-60 2.1 l Conqeato C 11 y2.2 Origin p W pp Ty 13 2.3 Development in English Law _ 15 2.4 Judicial Review and Rule of Law C20 ;2.5 ,V Judicial Review and Judicial Supremacy 25 i2.6 Judicial Review in a Representative Democracy 12.7 Present Position in Common Law Jurisdictions , 39 2.8 p Con stitutional Propriety H p p {ll 2.9 I Doctrine of Ultra Vires 45 %2.1O The Rationale of Judicial Review pp 1 49 12.11 Criticism“ against Judicial Review? H 51“ l 2.12C"iii CiThe Common Law Theory of Judicial Review 4 53 l2.13 Conclusion p p_ l 53 l mi JUDICIAL REVIEW IN THE INDIAN CONTEXT 61-115 3.1 Background of thelndian Constitution J61 6-3 @3.2 The Concept inppthe Constituent Assembly H 1 68 C3-3v Initial Approachpof the Indian J udiciaiy p_ i 3.4 p_Gradua1 Empowermentp ofplndian Judiciary C 87 3.5 Towardstludicial Restraints pp___ M l 94 C 35 Judicial Revieyv in Po1icy_Matters up A l 97 3.7” Judicial Review and Separation of Powers E 101 3.8 v Judicial Review andgudicial Activism 1;; India 103 3.9 lConclu sion“ p _p lpp H 113 “m m l 00 O0 U1 )1l ii6lI57 IVAUTONOMY ACADEMIC FREEDOM AND UNIVERSITY India4.1 Academic Freedom and University Autonomy in 116 A-2 Univ¢rSityAut0n<>my in Engléiiid and United Statesli 126 __14.3 InAutonomy defpe of IndianInd Universities I I before = 5 130 4.4 I Universityp enc_e__ Autonomy in Independent India_ during 135 I 7 1 first two decades 5.4.5.. I University Autonomyr Myth.-0r-R¢,-ality _ I 137 _ 4.6 Judicial Intervention p 140 4.7 Tension between Academic Freedom and 148 ____W_Ad_ministrati0n g 4.8 Downsizing Higher Educati0n- An Interference 149 F L Indirectly v ’ JUDICIAL REVIEW OF ACADEMIC DECISION or i 158-1891 I UNIVERSITIES- AN ANALYSIS OF SUPREME COURT DECISIONS - PART - A 5. 1 _p_ _Background 158 5.2 ; Supreme Court and Academic Decisions in General 1 159 1 (Non-interference, Interference Policy Matters) ; 5.3 TConclusion 5 189 VI JUDICIAL REVIEW OF ACADEMIC DECISION OF 192-274 UNIVERSITIES- AN ANALYSIS OF SUPREME . LCQUBT DEQISIONS - PART—B .13 Jf___. ’ Recognition[Affili_ ‘on I I _g 192 N6 6. 2” g 7 __ gEgqugivgalpegnc_eg1 I of Degree, at1 Diploma andgCourses _pl 196 I 6.3 Admission . 198 2.1.2 =.6~5I__--I 6.4 .__.,..Ma-_1pra¢ii.¢9§--i.n_EXami1iati0H Examination _ __ _ ­ 219 22882 6.6 T Re-valuation _ 230 Lg6.8j 6.7 Campus* Grace Discipline Marks _ _ _ . 232 _6.96.1_Qp Attendance 8 Migration __g____g 8 I g_W pj._ _ . 238237 l ;.S@l@¢ii<>1i/[email protected]¢nt of Academic Staff I 239 I 6.12 I Effect of Interim Orders m_ 1 255 $6.13 l Miscellaneous I I 256 vii 1 KERALA HIGH COURTON ACADEMIC MATTERS 275-348 1 1 L 7»1 if 1 -'*'--—"i Non-interference i '7 -———— —-—--i'~'——-——'- - ——' 7278 | 7.2 1 Interference _ “Q84 7.3 Recognition/Affiliation .-_ 287 7.4 Admission - - 295 7 7.5 311 I Examination _% 7 I Revaluation 1 32 1 7.7 ...DiS.<;ip1in§.-.--,,--,.__-.-..-.-- ___ 324 7.8 Grace Mark _> _ A 329 7.9 V HAQpOlI1t1‘§1¢n_t and Selection of Faculty { 331 7.10 Fee Structure { 1 M342 7.11 __ General Interference L 7 1 7.12 _ 1 _-- ‘ 347 VIII CONCLUSIONS AND SUGGESTIONS . 349-368 E r LIST OF CASES it K 7 A 369-397i I l BIBLOGRAPHY Q98-406 B<><>kS‘Reports "' 7 1398-4702" 402“ ! __ .A!f¢i¢1@S _ - - --. 403-4951 i PREFACE Education in India is being increasingly controlled and guided by the courts. The presence of courts in the campus has been recognized gradually either out of necessity or of compulsion. All concerned in education-teachers, students, managements and universities— have played their own roles in inviting the court to the campus. This has resulted in and has gone to the extent of regulating the conduct of college union elections and maintaining the law and order in the campus by banning the menace of ragging and also interfering in admission, examination, valuation, selection of teachers etc., which are considered to be inherently academic matters. In the given context, this study makes an attempt to assess the involvement of the court in regulating education and its role or interference in the conventional concepts of ‘academic freedom’ and ‘university autonomy’. The attempt herein is to find out the extent of judicial intervention in academic matters and its justification, logic and reasoning and also to see whether the courts are maintaining the constitutional balance or are succumbed to the compulsions of contingencies and indulge in judicial encroachment into the academic areas. The study mostly concentrates on the jurisdiction under Article 226 of the Constitution and its invocation in academic matters with particular reference to the decisions of the Kerala High Court. Instead of directly entering into the case law discussion, the study, to begin with, glances through in its 2nd chapter the origin, concept, history, growth, development and the present position of the doctrine of judicial review in the common law world including India. It also traces ii the relationship of the doctrine with the dominant constitutional principles of rule of law, separation of powers and democracy and their foundation on common law. The constitutional propriety of the doctrine, its reliance on the doctrine of ultra vires, the rationale of judicial review and its criticism are also being looked into. Though the attempt is not to have a comprehensive study of the jurisdictional parameters of judicial review, a study of the fundamentals and first principles of the doctrine of judicial review and its development was necessitated so as to find out the legitimacy of its involvement or encroachment in academic matters in the present day context. Coming to the Indian context, the concept of judicial review in the Constituent Assembly, initial approach of the Supreme Court of India towards the doctrine, gradual empowerment of Indian judiciary in this area and the resultant judicial activism have been highlighted in chapter 3. The smooth, orderly and uniform development of the doctrine by the Indian Supreme Court, which was made possible by the written constitution and its specific provisions for judicial review to safeguard the fundamental or any other rights of the citizens, has been traced in the said chapter with a view to finding out the limitations imposed on the High Courts while invoking Article 226 of the Constitution. The study proceeds through the analysis of ‘academic freedom’ and ‘university autonomy’ in the 4"‘ chapter. This chapter attempts to probe academic freedom and university autonomy in India, England and United States and autonomy of Indian universities before and after independence. It also attempts to find out the myth and reality behind university autonomy and the tension between academic freedom and administration. The recent trend in India of downsizing higher education by the policy of privatization and liberalization affecting the university autonomy is also highlighted. iii Chapters 5 and 6 deal with analysis of the judgments of the Supreme Court of India on the subject. While the former deals with the background and the general principles of the initial non-interference and subsequent interference in academic matters, the latter deals with the judgments under various separate sub—titles dealing with specific issues of academic governance. Chapter 7 is about Kerala High Court on academic matters, again dealing with the judgments available on non-interference and interference of the court on academic matters and on specific issues under separate sub—titles. Chapter 8 sums up the conclusion and presents the suggestions of the study. The study originally envisaged was on the topic ‘ Judicial Review- Its jurisdictional Parameters’. Having found that it is a vast and unwieldy subject, which could not be effectively contained in a doctoral study, my Guide, Professor (Dr.) K.

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