Justice Parthiban’s Rule of Law- ‘Assent’ of Governor of the State was no ‘Empty Formality’ Narasimhan Vijayaraghavan Lord Bingham said,  “Rule of Law is well known to the legal fraternity and politicians and administrators ‘as an expression”’.

Justice Parthiban’s Rule of Law- ‘Assent’ of Governor of the State was no ‘Empty Formality’

Narasimhan Vijayaraghavan

Lord Bingham said,

 “Rule of Law is well known to the legal fraternity and politicians and administrators ‘as an expression”’.

Rule of law is commonly understood as ‘basic rule of the thumb’ in carrying out the acts of the State and its institutions. Yet, there is ‘vague obfuscation’ as to what it actually means in practice. It would be dangerous to define it. It has been attempted before unsuccessfully. But the crux of it, I am emboldened  to say is  ‘Rule of law relates to role of all individuals and organisations within the State whether public or private,  are bound by and entitled to the benefit of the laws prospectively promulgated and publicly administered in the courts’.”

Lord Bingham admitted that his attempted definition was quite a ‘mouthful’. He then illustrated that hundreds of legislations were promulgated by  the State and thousands  more regulations were passed by delegated legislation – and amendments to it, and further amendments and more.No man worth the salt can keep track of. But, he said  that those who administer the law and these regulations, who  put it there, cannot be seen to flounder.

The Rule of Law is as much for us as them. He recounted his own experience in dealing with a

‘compensation case with 66,000£, and at a late stage and by sheer chance, it emerged  that the regulation under which the impugned order was passed had been revoked seven years earlier.And nobody could have found it out. Parliament alone is not to blame as Judges themselves are given to extreme prolixity, length and complexity and both do not do what is required of them to make the law simple as it ought to be”.

To add punch and pungence Lord Jonathan Sumption said,

“, I truly wonder whether Rule of Law has morphed into Rule of Lawyers (and Judges)”

in his famous Reith Lectures series on BBC Radio. One  was reminded of these, as one tucked into yet another scholarly 94 page 62 Para pronouncement from Justice V Parthiban, in  a lovely story telling style.

Not the prosaic, pedantic for him. And that, in as mundane a proceeding as Madurai Kamaraj University not following the ‘Rule of Law’, in the matter of fixation of renewal of affiliation fees for self finance courses,  conducted by member colleges.

Parthiban, I am emboldened to call him that, has proved to be a revelation on the bench. There is nary a portfolio he has not taken  to as fish to water. From the Bench, he may seem impatient and on rare occasions ‘abrasive’ as is jurisprudentially alluded to in the ‘corridors’, by practitioners. That is because as C P Ramasamy Aiyar famously said, “ I cannot suffer fools. I would make a poor judge if the likes of me appeared  before me. So I declined to become a Judge”.

In the last 6 years on the Bench, now on ‘his final lap’ before attaining the age of superannuation, as he himself reminds everyone, has proved to  be astute enough,  to camouflage his abrasiveness with silence to stupidity. He has the depth of knowledge and felicity of expression. They need to  go ‘ hand in hand with  a deep dive into ‘whys’ and ‘hows’ to divine, detect and decide’ as Justice Louis Brandeis said.

All these faculties come to the fore in this erudite decision. It fell within a short canvass as captured by him. ]

“ The petitioner is an Association representing the interest of management of various private colleges affiliated to the respondent/University. The grievance as projected in the present writ petition is in regard to the issuance of a letter of the respondent University dated 01.07.2016 informing the association as to the fixation of renewal of affiliation fee for self finance courses conducted by the member colleges at Rs.10,000/- per year, per course. The colleges were advised to pay all the arrears of renewal of affiliation fee on or before 31.07.2016. The substance of the challenge in the writ petition is that while revising the affiliation fee, the respondent University has not followed the mandatory procedures contemplated in the Madurai Kamaraj University Act, 1965 (hereinafter referred to as ‘the Act’), the Statutes, Ordinances and the Regulations framed thereunder and hence, the revision suffered from patent illegality and liable to be interfered as being void.

 

  1. According to the learned counsel, it is only the Senate being the supreme governing body in terms of the Act which is empowered to revise affiliation fee applicable to the Colleges affiliated to the University. In comparison, the learned counsel would refer to Section 20 of the Act which deals with the powers of the Syndicate. Section 20(1) confers powers on the Syndicate to make ordinances, regulating and determining administrative matters concerning the University in accordance with the Act, Statutes, Ordinance and Regulations. Thus, Syndicate has also been given wide powers under Section 20 of the Act. Although the Syndicate has a power to affiliate colleges within the University area to the University and to recognise colleges as approved colleges as per sub-clause 11 of Section 20, but as far as the subject matter of the present dispute is concerned, the Senate has the exclusive domain and the Syndicate has no role at all within the defined contours of powers as per the scheme of the Act.

He yields equal space to the University when he records:

“ 27. Learned Additional Advocate General would therefore submit that in the complete absence of procedure in terms of the Act and the Statute of the University, no infirmity could be found in the ultimate decision taken by the University in revising the rates of affiliation fee. When the power of the University to revise the affiliation fee is not being challenged, the manner in which the resolution was passed by the Senate cannot be successfully questioned by the petitioner.

  1. Moreover, from the scheme of the Act, Statute, Ordnances, it could be seen that the Syndicate has a substantial and important role in regulating the affairs of the University including the receipt of applications for grant of affiliation from the colleges, scrutiny of the applications, recommendation for withdrawal of applications etc. and in the face of such powers being conferred on the Syndicate, a proposal or recommendation from the Syndicate recommending the revision of affiliation fee to the competent body namely, the Senate, cannot be questioned as being violative of any provisions of the Act, Statute or Ordinances. As stated earlier, ultimately, the Senate, the competent body passed the resolution accepting the recommendations of the Syndicate and only thereafter, the petitioner was communicated about the decision of the University.

 

  1. In the above circumstances, the petitioner Association which has in fact, parties to similar revisions of affiliation fee on multiple occasions in the past, wherein the University had adopted the same procedure for effecting the earlier revisions, it is not open to the petitioner herein to question the present revision alone for serving its own ends.
  2. Finally the learned Additional Advocate General would submit that every infraction of procedure need not necessarily vitiate the decision per se taken by the competent body, even assuming if there is any procedural lapse. In any case no prejudice could be shown to have impacted on the interests of the petitioner, as the petitioner Association had been taken into confidence pursuant to the direction of this Court in the earlier Writ Petition in W.P.(MD).No.7469 of 2016 dated 18.04.2016 and only thereafter, decision of revision of affiliation fee was taken. Therefore, the present challenge by the Association has to necessarily fail as being not only without substance and merits but also lacking in bonafides.

 

Then Parthiban opens up his innings,  with this teaser. A subtle hint- Excuse me , I know what I am talking about or ought to decide,  what is under the scanner.

“ 32. This Court, at the outset makes it clear that it has no quarrel with the legal proposition that University has the power to revise the rates of affiliation fee and it is not anyone’s case either that the University has no power to revise the rate of affiliation fee periodically. Needless to mention that absence of such power would lead to a preposterous situation. As a matter of fact, admittedly, several revisions had taken place in the past and had been implemented across the Board by the respondent University.”

He does not hesitate to give it a whack when a dolly is served. He is not going to tap  it back to the bowler, what is easy pickings.

“ However, controversy herein is whether the respondent University has followed the procedure contemplated in the Act, Statutes, Ordinances and Regulations, while revising the affiliation fee or not presently. As a corollary to the principal question is when the provisions of the Act contemplate a particular procedure, whether the procedure is mandatory or otherwise demanding strict compliance and consequently, non-adherence to the procedure contemplated in the Act and the Statute of the University whether would render the impugned decision vulnerable, calling for intervention of this Court in its exercise of its power of judicial review or not? The answers are to be found hereunder by dissecting through the anatomy of the Act and applying the correct legal principles that fit the bill.

He zeroes in on the nub.

“ 43. As far as the nucleus of the issue on hand is concerned, as to whether the present revision of the affiliation fee by the University has been effected by following the provisions of the Act, this Court has to necessarily rely on the cardinal provisions i.e., Section 31 of the Act. In terms of sub- clause(4) and (b) of Section 31, there is a clear embargo placed upon the Syndicate among others that it shall not propose the draft of any statute or of amendment of the statute affecting the conditions of affiliation or approval of affiliated or approved colleges with the University or by the University as the case may be. Thus, sub-clause (4) is an exception carved out from sub- clause (1) of section 31 which provided for proposal by the Syndicate of any draft Statutes for consideration of the Senate. Thus, the Scheme of the Act clearly envisaged the procedure to be followed in regard to a decision to be taken on certain matters. Although general power of proposal of any draft statutes is enjoined upon the Syndicate in Section 31 under sub-clause(1), however, under the same section sub clause (4) the Syndicate is denuded of the right to propose any draft statute inter alia as to affecting the conditions of affiliation etc.”

 

Then, he clinches the case and the verdict in this sound and resounding words. It cannot get any clearer. That University may have been ‘lulled into complacency’  over decades. The member colleges may have acquiesced in their indifference. But Rule of Law is no mere expression as Lord Bingham said. It is Rule of Law. ‘It is the Law of Life in a court’ as my favourite Justice Antonin Scalia used to say.

Parthiban knows and knew ‘Procedure is the handmaiden of justice’. Yet, ‘Justice cannot be sacrificed at the altar of expediency of the blundering ways of the State and/or its institutions’ as Lord Denning famously said,  while challenging a Secretary’s diktat in immigration law. Law is an Ass. No one knows it better than Parthiban, with a J, for a difference. ‘But it is a respectable Ass and ought to be treated as such’ as Abraham Lincoln mused. Exactly,  what Parthiban has done while wading into the ‘lulled complacency’ of Madurai Kamaraj University. He has shook them up. To wake up and be aware.

And in these ringing tones,

“ 49. From the above material facts, it could be seen that the Syndicate has arrogated to itself the primary role towards revision of affiliation fee structure. As borne out by the records in 2004 revision, the Syndicate has approved the revision of affiliation fee recommended by the Affiliation Fee Review Committee by effecting modification in the revision, consequently, the modified affiliation fee was approved by the Senate. Therefore, the Court has to come to an inevitable conclusion that the revision of affiliation fee either in the past or in the present was not in terms of the scheme of the Act.

 

He catches the bull by the horns. It cannot escape. It is trapped in its own ‘lulled complacency’.

                                     “ 55. Apart from the above procedural violation, the most important infraction pointed out on behalf of the petitioner is that the impugned amendment is unenforceable in law, as clause 3 of Section 31 states that a Statute passed by the Senate shall have no validity until it has been assented to by the Chancellor, as admittedly, the amendment has not received the assent of the Chancellor. This submission cuts at the root of the issue. Although countering the contention, the learned Additional Advocate General argued that in the past several revisions had taken place and the same petitioner is also a party to such revisions in the deliberations preceded such revisions, and in interference with the exercise of power within the frame work of subordinate legislation, flexible approach to be adopted, this Court is unable to countenance such reasoning of the respondent University. In fact, in this regard, learned counsel for the petitioner has brought to the notice of this Court that in the year 1988, when the affiliation fee was revised by the University, the revision has received the assent of the Chancellor on 03.06.1988 and incorporated in the Statute. Admittedly, the present revision of the affiliation fee has not received the assent of the Chancellor, who is none other than His Excellency The Governor of the State.

He gives the University a long rope. To hang themselves. Which they well oblige.

“ 57. Be that as it may, no plausible explanation has been given by the University for not obtaining the consent from the Chancellor for the subject revision or for that matter, no possible reason could make the impugned revision legal and valid. Unless or until the decision/ resolution of the Senate is assented to by the Chancellor of the University only then the amendment become legally enforceable. Assent by the Chancellor of the University is not to be regarded as an empty formality for the University to adopt a stand that in the past, revisions of affiliation fee were implemented and accepted by the colleges. The audacious stand taken by the University in this regard is apathetic reflection of its understanding of the scheme of the Act. It only showed that the University has been lulled into complacency having not faced any challenges in the past on this vital legal aspect. In the said circumstances, the impugned communication which seeks to enforce the unassented resolution of the Senate has to be necessarily discountenanced in law.”

Kudos my friend.

Well, would the Madurai Kamaraj University realise it folly and get on the corrective path? As it ought to, if ‘Rule of Law’ had any potence and significance in the educational jurisprudence. Or, they may feel slighted  that what has changed,  after all these decades of ‘lulled complacency’, that this learned judge must feel good to thrash  us ‘as if’  we have failed to abide.By the well laid out procedures and practices of yielding  to the supremacy of the Senate and seeking the blessings of the Chancellor of the State viz. Governor. We have simply done what we have always done. Why pick on us now, University may ask.

Typical of the ways,  the University may yet challenge  this order. On the ground  that the learned judge had given primacy to ‘procedures and practices’ when the ‘substance of the law’ namely exercise of available authority of the University was not under challenge. Possible. But, for Parthiban, having done his duty, it  is no longer his baby to care and nurture. Philosophically enduring indifference.

Law  usually  makes sedentary reading. Not for those who want a brisk and fast pace. Justice Parthiban is different. He has the dexterity to weave an engaging story. Therefore, guardedly, Parthiban has pointed out that  he was not oblivious of the multiple decisions in this jurisprudence. He has thoughtfully given them  their due and space . But pointed out that the necessary imprimatur  from the institution of Chancellor or Governor  was no ‘empty formality’. It is  his punchline. It dovetails the essence of Rule of Law.

Rule of Law under the Madurai Kamaraj University Act mandates the ‘Assent’ of the Governor of the State, in whose name, Constitution says the administration of the State is run. Surely, it cannot be an ‘empty formality’. If it was, why put it there?

( Author is practising advocate in the Madras High Court)

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