Topic: Brief examination of the

extent of violation of the

separation of power between the
legislation, the executive and the
judiciary in West Bengal.
( With a case study of an incident
that took place in the last 10
years. )

AMITAVA DAS (1ST YEAR) (2nd SEMESTER) (SECTION: C,

ROLL: 40)

UNIVERSITY OF CALCUTTA DEPARTMENT OF LAW

14 May 2024

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ABSTRACT :

The three branches of the government are the executive, the legislature
and the judiciary. Although the three have distinct functions to perform,
their scope sometimes meets. Separation of powers divides the
mechanism of governance into three branches i.e. Legislature,
Executive and the Judiciary. Although different authors give different
definitions, in general, we can frame three features of this doctrine.

1. Each organ should have different persons in capacity, i.e., a

person with a function in one organ should not be a part of
another organ.
2. One organ should not interfere in the functioning of the other
organs.
3. One organ should not exercise a function of another organ (they
should stick to their mandate only).
The doctrine of separation of powers is a part of the basic structure of
the Constitution, although not specifically mentioned. The legislature
cannot pass a law violating this principle. The functions of the three
organs are specifically mentioned in the Constitution.

Articles of the Constitution which suggest separation of powers:

Article 50: This article puts an obligation over the State to separate the
judiciary from the executive. But, since this falls under the Directive
Principles of State Policy, it is not enforceable.

Article 123: The President, being the executive head of the country, is
empowered to exercise legislative powers (Promulgate ordinances) in
certain conditions.

Articles 121 and 211: These provide that the legislatures cannot discuss
the conduct of a judge of the Supreme Court or High Court. They can
do so only in case of impeachment.

Article 361: The President and Governors enjoy immunity from court
proceedings.

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In this research article, I have explained and discussed the extent to
which the separation of power between the legislative, executive, and
judiciary branches in West Bengal has been violated. This has been
analyzed by examining a case study of an incident that occurred within
the past 10 years.

And I wrote the whole article below regarding the ‘Conflict

of appointment and re-appointment of vice-chancellors in 22 State-
run Universities of West Bengal.’

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INTRODUCTION :

In India, the government follows a separation of functions approach

instead of a strict separation of powers like in the United States.
However, a system of checks and balances has been established to
ensure the judiciary has the power and authority to strike down any
unconstitutional laws that may be passed by the legislature.

Most modern constitutional systems do not have a rigid

separation of powers among the different branches in the traditional
sense, as it is not feasible. In the upcoming sections, we will explore the
current system in India, the inter-relationship between each branch, and
the constitutional provisions related to it.

In the year 2023, the state of West Bengal witnessed a major

conflict among the governing bodies regarding the appointment or
re-appointment of Vice-Chancellors in 22 state-run universities of
WB. It was found that these appointments were unsustainable in law,
and the incumbents had no right to continue in their positions.

The court has ruled that the appointment of Vice-

Chancellors must be done in accordance with the law, and that
conflicting provisions in the State Universities Act will be superseded
by the UGC regulations of 2018. This ruling came in response to a PIL
challenging the validity of amendments to the WB Universities Act
made in 2012 and 2014, which allowed the state to appoint, reappoint,
and extend the tenures of VCs. Former WB governor Jagdeep Dhankar
had also expressed concerns over the appointment process of VCs in the
state.

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CONTENTIONS IN THE PIL :

In 2012 and 2014, the University Act was amended in the state of
WB. As per the guidelines, candidates applying for the post of VC
were required to have a minimum of 10 years of experience as a
professor. However, in the latest amendment of 2018, this
requirement was reduced to 5 years. As a result, a person needs to
serve as a professor for 5 years to apply for the post of VC. The main
point of contention in the PIL is that the state government cannot
change the rules as they wish through an amendment. This is
because education is a subject on the concurrent list, and whatever
is decided by the Union Government will prevail over the State's
Amendment Act.

Another contention is that 22 VCs are reappointed in State

Universities in Bengal without consultation and approval of the
Chancellor who happens to be the Governor of the State. But here
interestingly, the Governor of WB is replaced by the Chief Minister
as a Chancellor of the State Universities in 2020. Though this law
was passed by the assembly but did not get approved by the Governor.

So primarily it is a legal issue but at hindsight and the

background it is more about the political issue, where the governor and
the State Government was loggerheads in many issues and the State
Government wanted to bypass the Governor’s office and appoint
and re-appoint the VCs of these Universities so that was the main
matter of contention and the Calcutta High Court has ruled against it
and said that it’s all the illegal appointments because the process has not
been followed properly and the criteria set but the Government of WB
is also not in accordance with the guideline of the UGC.

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APPOINTMENT AND RE-APPOINTMENT AND EXTENSION
OF TENURE OF THE VCs & THE GUIDELINES OF UGC :

According to the UGC persons of the highest level of competence,

integrity, morals and institutional commitment are to be appointed
as Vice-Chancellor. The Vice-Chancellor to be appointed should have
served in any State/Central Police Department/ Organization or
Military/Para Military Forces or have been in the State or Central
administration connected with the training of State or Central Police
Force or Military or Para Military Forces with proven record in research
and/ or academic administrative organization.

The selection of Vice-Chancellor should be through

proper identification of a Panel of 3-5 names by a Search Committee
through a public notification or nomination or a talent search process or
in combination. The members of the above Search Committee shall be
persons of eminence in the sphere of police/military establishment and
shall not be connected in any manner with the University. While
preparing the panel, the search committee must give proper weightage
to academic excellence, exposure to the training system in the county
and abroad, and adequate experience in administrative governance to be
given in writing along with the panel of three to five names to be
submitted to the Chancellor.

A member nominated by the State Government, who shall

be an eminent person and has achieved excellence in the field of
education or administration and shall be the Chairman. The Director or
Head of an institute or organization of national repute, such as, National
Defence College, Indian Military Academy, Police Training Colleges, or
Vice-Chancellor of a Law University nominated by the State
Government as Member.

A member nominated by the Chancellor who shall have

knowledge about higher education of the State and have achieved
excellence in the field of training/teaching. The Vice Chancellor shall be
appointed by the Chancellor in consultation with the State Government.

The tenure of the Vice Chancellor shall be of three

years. Provided that he may be considered for reappointment for
one more tenure after the completion of one tenure. The person

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appointed as Vice Chancellor shall retire during his tenure or
extended tenure after attaining age of seventy years.

According to the UGC guidelines the Vice-Chancellor

to be appointed should be a distinguished academician, with a
minimum of ten years of experience as a Professor in a University
system or ten years of experience in an equivalent position in a
reputed research and / or academic administrative organization.

In the case of Gambhirdan K. Gadhvi v. State of

Gujarat and Ors The Supreme Court said that “Appointment of Vice
Chancellor must be as per the UGC Regulations, even if they have not
been specifically adopted by the State. In case of any conflict between
the State legislation and the Central legislation, the Central
legislation, i.e., the applicable UGC Regulations shall prevail by
applying the principle of repugnancy under Article 254 of the
Constitution as the subject "education" is contained in the
Concurrent List of Schedule VII of the Constitution.”

In State of West Bengal v. Anindya Sundar Das &

Ors the apex court said that appointment of the Vice Chancellor by the
State government has to be as per the UGC Regulations and any
appointment of Vice Chancellor in violation of the UGC
Regulations shall be void ab initio.

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CONCLUSIVE REMARKS :

By discussing the whole matter of the Vice Chancellor's appointment

and re-appointment conflict in West Bengal, we can draw a picture of
the conflict between the power bodies.

Here the Governor and the UGC are the

representatives of the ‘Executive’ body. On the other hand, we can
see that the assembly of the State of West Bengal represents the
‘Legislature’ body. And the Calcutta High Court is the ‘Judiciary’
body.

So, the conflict among these power-holder bodies

presents the problem of the ‘Check and Balance’ method which is one
the most essential element of the separation of power theory.

According to the regulations set forth by the UGC, the process of

appointing and re-appointing Vice Chancellors should involve the
identification of a panel of 3-5 individuals by a search committee
through a public notification, nomination, talent search process, or a
combination thereof. The appointment of the Vice Chancellor will be
made by the Chancellor in consultation with the State Government. The
Vice Chancellor must be a distinguished academician with at least 10
years of experience as a Professor in a University system or 10 years of
experience in a similar position in a reputable research and/or academic
administrative organization. The tenure of the Vice Chancellor will be
three years, and they may be considered for reappointment for one more
tenure after the completion of one tenure. The person appointed as Vice
Chancellor must retire during their tenure or extended tenure after
reaching the age of seventy years.

West Bengal amended the UGC's act to require VCs to

have five years of experience as a professor and established the Chief
Minister of WB as the Chancellor of the 22 State Universities, which is
illegal.

When the PIL is filed in court, the court stated that the State's
amendment is unconstitutional.

In conclusion, it can be said that the violation of the

separation of powers in West Bengal is a major threat to democratic

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governance and the rule of law. It is crucial to make efforts to restore
balance and uphold the independence of each branch of government.
This will ensure accountability and safeguard constitutionsl principles.