On 28 August, India set the world record for the highest daily increase in number of COVID-19 cases. On the same day, the Supreme Court of India upheld the decision of the University Grants Commission (UGC) requiring universities across the country to conduct exams for final-year students by 30 September.
However, the court’s judgment reveals an omission to scrutinise the UGC’s decision for its impact on fundamental rights.
The petitioners before the apex court questioned the UGC’s authority to grant such directions. Here’s what they said:
- The petitioners argued that the directions violated the right to life under Article 21 and the right to equality under Article 14 of the Constitution
- They contended that holding exams posed a serious risk to the life and health of students. Offline exams entailed substantial risks for students, especially those who would have to travel across states.
- Even in the case of online exams, it was contended that hastily organising exams would severely impact students who do not have easy access to internet.
- Finally, the petitioners contended that granting degrees on the basis of the average results of five semesters and internal assessment would not result in a violation of the UGC’s regulations. Counsel for several state governments also challenged the setting of a uniform deadline as being arbitrary in light of the vastly differing impact of the pandemic across the country.
The framers of our Constitution tasked the judiciary with reviewing all forms of state action in respect of their impact on fundamental rights particularly keeping in mind the real possibility that the executive may abuse its powers while taking hasty decisions.
The constitutional responsibility of the court in this case was to examine whether final semester examinations were necessarily required to be conducted on an urgent basis despite the substantial risks to the students’ health and life outlined in their contentions.
Students’ Agency Negated?
The Supreme Court failed to identify a satisfactory explanation as to why final-year exams are qualitatively different from other exams. This question was crucial, as the risk to the lives of students, staff and teachers could only be justified if final-year exams were shown to be indispensable.
“...Performance in examination especially Final-year/terminal semester examination are reflection of competence of the students. Terminal semester/Final-year examination also provides an opportunity to the students to improve upon their overall score/marks which are very crucial for academic excellence and opportunities of employment. Final-year/terminal semester examination of under-Graduate or Postgraduate is an opportunity for student to show his optimum calibre which pave his future career both in academics and employment.”Supreme Court
This reasoning is dubious. It is not clear why final-year examinations are a better indication of a student’s calibre than exams taken earlier.
In fact, in most universities, results of each semester are given equal weight in the calculation of a cumulative grade point average. Thus, all semesters are considered an equal “reflection of competence of the students.”
The only basis identifiable in the court’s reasoning to distinguish final-year students from other students is its further assertion that it would be in the best interests of the final-year students to be afforded an opportunity to show their optimum calibre and improve their performance.
This form of reasoning is particularly problematic because it is asserted to reject a plea by the very individuals who identify the UGC decision as constituting a risk to their health.
In this way, the court negates the agency of the students to determine what is in their best interests. Using such logic, courts may reject contentions advanced in any writ petition on the ground that the petitioner has failed to comprehend what is in their best interests.
This inclination toward paternalism spells danger for the very idea of individual rights.
Uniform Deadline for Entire Country Unnecessary?
While evaluating whether or not the decision to set a uniform deadline for exams was arbitrary, the Supreme Court failed to actually assess the argument advanced by the petitioners. The petitioners and states argued that the decision to set a uniform date across the country was arbitrary because circumstances differed across the country.
The court repelled this contention by simply asserting that uniformity was needed for persons to apply for jobs and higher studies. However, here again, the court fails to evaluate the adverse impact that would be caused in mandating the states in adhering to this uniform deadline.
Strangely, the court ultimately went on to hold that the state governments can override the UGC timeline by invoking the Disaster Management Act, 2005 and apply for extension for time to conduct examinations.
Once the court acknowledged that the ultimate power to assess the dangers posed by the pandemic vests with state governments, it ought not to have insisted that a uniform deadline for the entire country was necessarily a reasonable measure.
In doing so, the court has merely caused confusion over the powers vested in the UGC and the state governments.
Can Intent Alone Protect Students?
Instead of asking the UGC to explain why its decision was reasonable, the Supreme Court merely asked whether the UGC was aware of the risks posed by the growing pandemic in India.
The petitioners argued the UGC’s decision violated Articles 14 and 21 because it failed to properly consider the threat to the health of students, teachers and university staff.
They argued that a proper consideration of the surrounding circumstances would necessarily lead to the conclusion that requiring exams to be held would constitute a major health risk – a risk that was not offset by any particular gain by holding exams for final-year students.
To determine the constitutionality of the decision, the court required the UGC to justify why the harm caused by not holding final-year exams was greater than that which could be caused by holding exams. Instead, the court simply noted that the UGC guidelines had “taken due notice of the prevailing situation of COVID-19 and it cannot be said that the expert body is unaware of the pandemic.”
The court went on to cite the standard operating procedure, providing directions for sanitisation of exam centres as adequate evidence of an intent to protect the health of the students, saying nothing at all about the risk of traveling within and across states.
The Setting of a Dangerous Precedent
By rejecting the petitioners’ contentions in this manner, the court avoided examining the balance of interests involved in this case. Like the court’s embrace of paternalistic reasoning, this, too, sets a dangerous precedent.
Applying this deferential standard of judicial review, any executive decision may be upheld as constitutionally valid as long as the order or guidelines state that risks have been considered.
Aside from rendering the judiciary powerless, this approach would incentivise decision-makers to deal with dangers associated with their decision in a mechanical fashion, rather than actually computing the possible harms involved.
Aside from the weaknesses in reasoning pointed out above, it is striking that the court did not render any findings on the petitioners’ contentions regarding the disparate impact of the UGC decision on students from economically weaker sections of society.
One of the counsel for the petitioners laid particular emphasis on the fact that compliance with the UGC decision would cause substantial difficulty to persons with disability. It is worrying that the court did not deem these submissions important enough to merit attention.
Overall, the court’s judgment appears to overlook the depth of submissions advanced by the petitioners, and reflects an unwillingness to seek out detailed justifications from the concerned authority.
Several legal commentators have identified this as an emerging trend in Indian constitutionalism, where the judiciary occasionally appears to be even “more executive minded than the executive.” Watching the judiciary repeatedly refrain from carefully scrutinising State action, one is invited to wonder how long the fundamental right to judicial review will lie in disuse before being resuscitated.
(Vikram Aditya Narayan and Jahnavi Sindhu are Delhi-based advocates. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)