Bombay High Court Upholds Constitutional Validity Of UGC Regulations On Distance Learning And Online Programmes

The petitioners had challenged Regulation 3(A)(i), Regulation 3(B)(b)(ii), Regulation 4(B)(ii) and Regulation 4(C)(ii) of the University Grants Commission (Open and Distance Learning Programmes and Online Programmes) Regulations, 2020 ('Regulations') made under the University Grants Commission Act, 1956.

The Regulations challenged imposed the following requirements on Higher Educational Institutions (HEI) to offer undergraduate and postgraduate programmes through the Open and Distance Learning (ODL) mode and the Online (OL) mode:

(i) that HEIs must achieve a specific NAAC accreditation score or NIRF ranking before being permitted to offer programmes in these modes

(ii) that HEI proposing to offer programme in ODL or OL mode must already be offering the programme in the conventional mode, where face-to-face teaching occurs in a classroom setting and at least one batch of students should have completed the programme.

The petitioner no. 1, Symbiosis Open Education Society and Symbiosis Skills and Professional University (SSPU) is a skill university which sought to offer certain programmes through the ODL but was unable to meet the requirements of the above-mentioned Regulations.

The Division Bench of Justices B. P. Colabawalla and Somasekhar Sundaresan first examined the history behind the policy choice for the Regulations. The Court noted that Ministry of Human Resources Development had constituted a Committee headed by Prof. N.R. Madhava Menon (Menon Committee) in 2010 that provided recommendations for approval of Distance Education courses/institutions.

It observed that key recommendation of the Menon Committee included encouraging conventional universities to adopt a dual mode of education, offering Open and Distance Learning (ODL) programmes in addition to conventional programmes to better utilise the existing infrastructure. Further, universities could be granted permission to offer ODL programmes only if they were being offered in conventional mode, with same syllabus and evaluation for both.

Reviewing the policy choice, the Court stated that a lack of quality control mechanisms was identified as a serious challenge to the effectiveness of ODL programmes. It noted that NAAC accreditation and NIRF ranking provide empirical and objective analysis to measure the quality of HEI. Therefore, the requirements provided in the Regulations help determine whether an institution has the capacity to offer programmes through the ODL and OL modes.

“Therefore, such measures bring in the ability to stipulate a measure to determine if an institution should be allowed to offer programmes through the ODL and OL modes i.e. in a teaching environment that is more challenging than a conventional classroom. Therefore, it would stand to reason that if an institution is poorly rated in the conduct of programmes even in the classroom mode, it is reasonable to not permit it to take on the even more challenging platform of ODL and OL modes” the Court said.

The Court thus found that the requirement of NAAC accreditation or an NIRF rating in the Regulations was not unreasonable and arbitrary.

Conventional programme requirement

With respect to requirement that ODL programme must also be offered in the conventional mode, with at least one batch having passed out, the Court noted that this is a mere requirement that HEIs must demonstrate as a 'proof of concept' in offering a programme. It observed that if at least one batch has graduated from the conventional programme, it would indicate that the HEI is conducting the programme with market acceptability for it, thus ensuring the quality in the ODL and OL modes.

The Court therefore held the requirements of the Regulations were a rational and reasonable policy choice.

Accreditation process of a Skill University

The petitioners contented that the requirement for accreditation or ranking should not apply to skill universities as the parameters for accreditation of traditional/conventional HEIs are not a fair means to assess programmes of a skill university.

The Court examined the regulatory framework governing the process for accreditation and ranking. It found the current NAAC accreditation process inappropriate for a skill university such as the SSPU and this was even acknowledged by the respondents.

It held that the parameters used by NAAC for rating traditional universities “is evidently not totally appropriate for a skill university” and that no distinction is being made for accreditation process between a traditional university and a skill university.

The Court noted Department of Higher Education, Government of India (respondent No. 2) has constituted an “Overarching Committee” to recommend on strengthening the accreditation process. In its report of 2014, one of the reforms proposed by the Committee was to consider the heterogeneity of HEIs in the country and categorise them based on various factors, as opposed to one-size-fits-all approach. In view of this, the court examined if the current process followed by NAAC for a Skill University was arbitrary.

It held that until an appropriate set of NAAC parameters is established for a skill university, the outcome of a skill university's review by NAAC would not be appropriate. However, the Court also remarked that since it did not find the requirements of the Regulations to be unconstitutional, it has to issue directions to address such anomaly so that the constitutional validity of the Regulations was not disturbed while ensuring that its effect was not arbitrary and unreasonable to the petitioner.

The Court therefore held that SSPU would be entitled to offer the courses in ODL without waiting for NAAC accreditation since the programmes proposed to be offered through ODL by SSPU were already offered in the conventional programmes and one batch had already graduated. Thus, the requirements of Regulations 4(B)(ii) and 4(C)(ii) would be met.

In conclusion, the High Court upheld the constitutional validity of the Regulations, yet permitted the SSPU to offer programme in ODL and OL mode as NAAC accreditation process was deemed inappropriate for a skill university.

Case title: Symbiosis Open Education Society and Symbiosis Skills and Professional University & Anr. vs. University Grants Commission & Ors. (Writ Petition No. 7339 Of 2023)