A recurring trend among successive Union governments has been their penchant for encroaching on prerogatives of state governments. During the early deliberations of the Constituent Assembly, a chorus of voices advocated for a model akin to the British Cabinet Mission Plan of 1946, envisioning a Centre with limited powers and significant autonomy for states. However, the upheavals surrounding Partition upended the mood, resulting in the adoption of a Constitution imbued with strong unitary features. Despite this, successive Union governments have exhibited a propensity to creep even upon these delimited realms of states.
Education serves as a quintessential example of such incursions. Our founding fathers were resolute in keeping education with states, thus placing it as Entry 11 of the State List under the Seventh Schedule of the Constitution. However, during the Emergency, the Constitution (Forty-second) Amendment Act of 1976 altered this by transposing it from the State List to Entry 25 in the Concurrent List. In the wake of this, a crucial development catalysed by the University Grants Commission (UGC) has diminished states’ control over higher education, particularly in universities established under state laws. The tweaking by the UGC in its regulations seemingly at the behest of the Centre, often contradicting state laws, has sought to effectively make the former’s representatives – governors – the sole custodians overseeing universities painstakingly established by states.
Among the several challenges to the primacy of UGC Regulations, none looms larger than the debate around the Union’s stance on its supremacy concerning the selection and appointment of vice-chancellors in state universities. At the heart of this is the concept of subordinate legislation or delegated legislation, a progeny of executive fiat, which refers to rules, regulations, or orders promulgated by executive authorities under the powers conferred upon them by an Act of Parliament or state legislature.
The Centre maintains that any provision within state laws contradicting UGC Regulations shall be deemed “repugnant”. Interestingly, the Supreme Court has accepted this argument in its recent judgments, overlooking a constitutional provision that unequivocally delineates the scope of “repugnancy” between state laws and central regulations. The UGC relied on this “repugnancy factor” in its affidavit filed in another case before the SC to assert the supremacy of its Regulations over state laws. However, constitutional provisions do not uphold this perspective.
The decisions of the SC in Gambhirdan K. Gadhvi v. State of Gujarat & Ors, State of West Bengal Vs. Anindya Sundar Das & Ors. Professor (Dr.) Sreejith P.S v. Dr. Rajasree M.S & Ors, have ignited debates on the constitutional interpretation of the relationship between central regulations vis-à-vis state laws. In these cases, the SC accorded primacy to UGC Regulations over state laws, contending that they formed an integral part of the UGC Act as a subordinate legislation. The SC reasoned that since UGC Regulations and Rules are to be laid before each House of Parliament as per section 28 of the UGC Act, they assume statutory force and become inseparable from the parent Act. However, this interpretation glosses over the constitutional labyrinth it traverses.
Granting primacy to delegated legislation over state enactments not only impinges upon the federal tapestry but also raises profound questions regarding its constitutional legitimacy and ramifications on the constitutional framework governing legislative relations between the Union and states.
The foundational principle embodied in Article 254 of the Constitution serves as the lodestar amidst this entanglement. It delineates a delicate equipoise between parliamentary enactments, pre-constitutional subordinate legislation and state legislation, save for exceptions carved out under presidential assent. The fundamental tenet gleaned from a meticulous examination of Article 254 evinces that in the event of any “repugnancy” between laws enacted by Parliament and state legislatures, the laws made by Parliament shall prevail unless the conflicting state legislation receives the President’s assent. As such, the concept of repugnancy under this Article pertains specifically to conflicts between state laws and substantive laws passed by Parliament, thereby excluding considerations of Rules, Regulations, and the like.
Clause (1) of Article 254 further establishes that if any provision of a law enacted by a state legislature conflicts with a provision of an “existing law” concerning matters enumerated in the Concurrent List, the “existing law” shall take precedence. This underscores the critical distinction between the terms “law” and “existing law” within the purview of Article 254.
Within the Constitution’s definition clause (Article 366), the term “law” lacks a specific definition. The sole provision permitting the inclusion of Rules and Regulations within the ambit of “laws” is Article 13(3)(a) in Part III. However, this provision is confined to determining the validity of laws inconsistent with or derogatory to fundamental rights and does not apply to other parts of the Constitution.
Consequently, the significance of the term “existing laws” becomes paramount. Clause 10 of Article 366 defines ‘existing law” explicitly as “any law, Ordinance, order, bye-law, rule or regulation passed or made before the commencement of this Constitution by any Legislature, authority or person having power to make such a law, Ordinance, order, bye-law, rule or regulation”. Article 366 (10), therefore, allows for a narrow interpretation of Article 254, accommodating only those Rules and Regulations promulgated “before the Constitution’s commencement” under the term “existing law”. Thus, the makers of the Constitution deliberately employed both “Laws” and “Existing Laws” within Article 254 to unequivocally convey their intent that no form of subordinate legislation by the central government or its instrumentalities should render state laws subservient, except for those promulgated prior to the Constitution’s commencement.
As such, since the UGC Act, 1956 came in after the Constitution came into effect and does not pertain to fundamental rights outlined in Part III of the Constitution, the UGC Regulations can neither run pari passu with state laws nor make them subservient. In instances of conflict between UGC Regulations and state laws, the latter should prevail.
Remarkably, this pivotal aspect of “existing law”, outlined in Article 254 in conjunction with Article 366(10), has been overlooked in judgments. By equating subordinate legislation with central laws without delving into the scope of the term “existing laws”, the judiciary has inadvertently expanded the scope of Article 254 beyond its intended purview. This equivalence neglects the difference between legislative and delegated powers, posing grave concerns regarding democratic accountability. While state laws are crafted by elected representatives, delegated legislation originates from executive bodies which, by its nature, lack the democratic participation, scrutiny, and consideration of regional interests and deliberation associated with legislative enactments. The will of a legislature comprising the elected representatives shouldn’t be made subservient to Regulations promulgated by the Executive.
Likewise, the judgments of the Supreme Court in Gambhirdan K Gadhvi and subsequent cases overlooked its own precedent established in Kalyani Mathivanan vs. K.V. Jeyaraj & Ors, wherein it was ruled that UGC Regulations are not binding unless adopted by the state governments.
Therefore, there is a pressing need for recalibration of this jurisprudence to realign with the true essence of Article 254.
Brittas is a CPM Rajya Sabha Member and Babu is a researcher
Among the several challenges to the primacy of UGC Regulations, none looms larger than the debate around the Union's stance on its supremacy concerning the selection and appointment of vice-chancellors in state universities. (Express archive) 
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