Small Institutions, Towering Offices: The Architecture of Power Within the NLUs

CHAIRMAN OF THE BAR COUNCIL OF INDIA (‘BCI’), Manan Kumar Mishra’s directions imposing a ban on the enrollment of students of the National Academy of Legal Studies and Research University of Law (‘NALSAR’) and the events that followed, have brought the BCI under renewed scrutiny. Much has been written about the functioning of the BCI, as well as the discriminatory practices, work environments, fee structures and inadequate infrastructure and amenities of the National Law Universities (‘NLUs’). Far less attention, however, has been paid to the architecture of power within the NLUs. This piece argues that the judicialisation of NLU governance, combined with a striking mismatch between the institutional scale of these universities and the extraordinary weight vested in the office of the Vice Chancellor, has produced a structural imbalance that deserves much closer examination. It is also an attempt to critically reflect upon the concentration of administrative and institutional power, the role of judicial figures in governance and the relative weakness of other mechanisms of accountability.

The Judiciary’s Relationship with the NLUs

The Judiciary has played a pivotal role in conceiving, establishing and nurturing the NLUs. But that history should not place judicial authority beyond scrutiny. The judiciary is itself a powerful institutional centre while the NLUs are public universities whose governance must be accountable, transparent and democratically defensible. This article is, ultimately, a constructive effort intended to subject the governance of the NLUs to the same critical examination that we rightly demand of other institutions of public power. It is intended to contribute to the institutional health and democratic functioning of these universities.

A highly judicialised university administration exercises a disproportionate degree of power over a relatively small and largely captive constituency comprising students, research scholars, teachers and administrative staff. The NLUs operate in significant measure under the tutelage of the higher judiciary with the Chief Justices of the respective High Courts serving as the heads of most of these institutions. For students, this creates a particularly unusual configuration of authority. Judicial officers are not merely their administrative superiors but also represent a professional establishment within which many of these students hope to work in the future. For the judiciary, administering a university is an additional responsibility, one that is fundamentally non-judicial in character. This may be an onerous responsibility but is equally an additional source of authority.

There are currently 28 National Law Universities in the country. All of them, including the National Law School of India University (‘NLSIU’), have been established under State legislation. Their administrative and governance structures are broadly similar. They mostly follow the NLSIU institutional model. 

The functioning of these institutions is regulated by a range of State and statutory authorities including the University Grants Commission (‘UGC’), the BCI, State Bar Councils, the higher education departments of the respective State governments and the Ministries of Law and Justice and Finance. These agencies also regulate law colleges affiliated to traditional State universities, private law colleges and law schools established by private universities. This, however, is where the institutional similarities end. Unlike most other law schools and colleges, the NLUs incorporate members of the higher judiciary into their governing structures. In addition to representatives of the statutory and governmental bodies mentioned above, the governing bodies of the NLUs include judges of the High Courts and the Supreme Court, often as presiding officers or members. So the presence of the Judiciary is not merely regulatory or supervisory but is embedded in the very architecture of the governance of NLUs. 

Most NLUs operate within a governance structure in which the higher judiciary occupies a central position. Their administrative authorities include the Vice Chancellor or a Director, an Executive Council, Academic Council/Senate and a General Council. By statute, the Chief Justice of the respective State High Court serves as the Chancellor of the NLU, although there are exceptions. For instance, at the National Law School of India University and the West Bengal National University of Juridical Sciences (‘WBNUJS’), the Chief Justice of India (‘CJI’) serves as Chancellor. At other NLUs like the Maharashtra National Law University (‘MNLU’) Mumbai, MNLU Nagpur, MNLU Chatrapati Sambhajinagar and the Gujarat National Law University, Gandhinagar (‘GNLU’), a sitting Supreme Court Judge occupies the position of Chancellor or Visitor. 

Some NLUs have Supreme Court Judges as Visitors. The Dr Ram Manohar Lohiya National Law University (‘RMNLU’) is the only NLU whose General Council is headed by the Chief Minister of Uttar Pradesh while the Dr B.R. Ambedkar National Law University, Sonipat (‘DBRANLU’) is the only NLU whose Chancellor is the Governor of the State. But the visitor of DBRANLU, however, is the Chief Justice of India. Significantly, Supreme Court and High Court judges preside over, or serve as members of the Governing Bodies of most NLUs. These are not informal associations or positions of ceremonial patronage, but are offices conferred by the statutes establishing the universities. A glance at the governing structure of NLSIU is particularly revealing. A striking number of judges of the highest court of the land occupy positions within its various governing bodies. 

This is a rare institutional arrangement in which judges of constitutional courts, members of the Bar, representatives of the State government, bureaucrats and academicians participate directly in the governance of universities. The non-judicial members of these bodies are often deferential to their judicial counterparts. However worthy the objective of running law universities on sound lines and grooming future lawyers, it does not place their governance beyond scrutiny. Good intentions do not make the underlying structure any less a concentration of institutional power above accountability. There is a formidable and deeply embedded imbalance of power within this mode of governance. Given this scenario, non-judicial members may find themselves relegated to an obsequious role. The result is a governing structure that may be formally diverse but is, in practice, profoundly asymmetrical.

On the other hand, the participation of judges in the functioning of NLUs has also facilitated an interface between the judiciary and the student community. Yet, this presence can, at times, become domineering and raise serious questions about institutional independence. When students, faculty or non-teaching staff seek legal recourse against arbitrary or unfair practices within the university, their recourse is ultimately to the High Courts or the Supreme Court. In such circumstances, basic principles of natural justice and institutional propriety demand that a matter should not be assigned to, or heard by, a judge who is a member of the governing bodies of the law school concerned. 

But the problem is deeper than a direct conflict of interest. How can institutional bias be entirely eliminated when fellow judges are called upon to adjudicate matters concerning an NLU whose Chancellor is the Chief Justice of their own High Court? Can there truly be equality and justice for a member of the NLU academia or non-teaching staff community seeking it when the highest judicial authority of the very institution from which relief is sought occupies a formal position at the top of that university’s governance? The issue is not whether a particular judge will in fact act or proceed with bias. It is whether institutional architecture inspires confidence that the matter will be decided without fear, favour or undue influence.

What ought properly to be dealt with on the administrative side of the NLU is instead brought before the judicial side of a constitutional court. Often, this places the judiciary in an awkward and sometimes embarrassing position while making the process acutely intimidating for those seeking justice. The very act of seeking redress becomes fraught. It is easy to invoke the doctrine of necessity but it is much harder for those caught within this factual matrix to live with the consequences. Such situations have the potential to breed mistrust and resentment between the administration, judiciary and those seeking redress. A truly Kafkaesque entanglement.