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On August 5, the Gujarat high court held that the arbitrary termination of employment of a professor at Sabarmati University, a private university regulated by the Gujarat Private Universities Act, 2011, could not be challenged before the court as a violation of a fundamental right because these rights have necessarily to be violated by the ‘state’, as mentioned in Article 12 of the Constitution of India, and not by private persons/organisations.
The court further reasoned that the respondent-university was a private university, not a government university, so the employer-employee relationship between the university and the professor was regulated through a private contract. As a result, the relationship stood beyond the applicability of fundamental rights and hence, no fundamental right was violated.
I argue that the private university stands within the definition of ‘state’ just like any government university does; it is also bound to fulfil its obligation to observe fundamental rights and avoid arbitrarily terminating employees for two reasons: first, that the university shares state-like publicness; and second, by virtue of being an employer, it controls employees’ access to the basic social goods of non-interference from the state, valuable opportunities and self-respect, just like a state does through government universities.
Publicness of the private university
The respondent-private university holds a public character because it discharges the public function of providing higher education. Higher education is imparted for public good because education primes individuals for better economic opportunities, such as a well-paying job, as well as non-economic ones, such as access to a more influential network of people. It allows a person to live a more comfortable life and gain diverse experiences.
Another reason is that education as an activity is central to a person’s participation in modern life. A traditional example of a similarly important activity would be of accessing a well to collect water, from which Dalits were excluded, and as a result, segregated. In response, during the late 1920s as part of Mahad Satyagraha, Dalits pressed for exercising their right to collect water from sources which were of public character.
On the other hand, if a university teaches the single activity of making higher vertical jumps, it would not be a public function. Unless you are a basketball player, learning how to make a higher vertical jump does not provide better access to basic social goods, nor does it improve one’s participation in modern life.
So, the nature of higher education as an activity is such that the private university ends up performing a public function. Its decisions with respect to curriculum, admission and even employment of professors, remain subject to the mandate of the fundamental rights.
This does not mean that all private spheres must be placed within the ambit of fundamental rights. The vice-chancellor (V-C) of the university can choose to arbitrarily not invite Dalits and Muslims to a small family event because she would not be taking the decision in her capacity as a V-C. However, had it been a university event, she would take the decision on behalf of the university as its VC, thus performing a public function.
The private university as an employer
Other than the nature of the activity, it is the nature of the person/body conducting an activity that determines whether the activity will fall within the ambit of fundamental rights. The private university is an employer, whereas the professor whose employment was terminated is a mere employee. Though both may be private persons, the power dynamics place the university in a much more dominant position.
Just like the state itself or the state through a public university, even the private university can dictate the professor’s access to the three basic social goods – non-interference, valuable opportunities and self-respect. The arbitrary termination of employment would disrupt the professor’s access to these goods.
In fact, the employment offered by the university strongly controls the level of self-respect an employee enjoys. The sudden disruption of employment would stop income flow. As a result, one’s standing in the social circle of family and friends would become weak because the workplace is also the place where one builds friendships. And through employment, one maintains financial stability to look after the family.
What the court must do
The constitutional provisions cannot be read in isolation from each other. In 2011, the Supreme Court in the case of Indian Medical Association versus Union of India, held that, “The meaning and extent of a fundamental right cannot be gleaned only from the specific text . . . it needs to be gleaned from the matrices of interrelationships with other fundamental rights and provisions in other parts of the constitution”.
The court must recognise that the private university performs the public function of educating people and holds a dominant position to control resources and the lives of its employees just like a government university does. It must make the decisions of the university subject to the fundamental rights that can be challenged before the court. Such a judicial approach will enhance access to justice in spheres traditionally considered private.
Husain Aanis Khan is a lawyer and Research Fellow at Vidhi Centre for Legal Policy, New Delhi.