On August 5, the Gujarat High Court ruled that the arbitrary dismissal of a professor at Sabarmati University, a private university governed by the Gujarat Private Universities Act 2011, could not be challenged in court as a violation of a fundamental right because such rights must necessarily be violated by the “State”, as mentioned in Article 12 of the Constitution of India, and not by private persons/organizations.

The court further held that the respondent university was a private university and not a government university, so the employer-employee relationship between the university and the professor was governed by a private contract. Accordingly, the relationship was beyond the applicability of fundamental rights and, therefore, no fundamental rights were violated.

I argue that the private university falls under the definition of “state”, just like any government university; it is also required to fulfill its obligation to respect fundamental rights and to avoid arbitrarily dismissing employees for two reasons: first, that the university shares publicity similar to that of the State; and second, as an employer, it controls employees’ access to the basic social goods of non-interference from the state, valuable opportunities, and self-respect, just as a state does through government universities.

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The respondent private university has a public character because it performs the public function of higher education. Higher education is provided for the public good because education prepares individuals for better economic opportunities, such as well-paid employment, as well as non-economic opportunities, such as access to a network of more influential people. It allows a person to live a more comfortable life and gain diverse experiences.

Another reason is that education as an activity is essential to a person’s participation in modern life. A traditional example of an equally important activity would be accessing a well to collect water, from which the Dalits were excluded and, therefore, separated. In response, in the late 1920s as part of Mahad Satyagrahathe Dalits lobbied to exercise their right to draw water from public sources.

On the other hand, if a university teaches the sole activity of doing higher vertical jumps, it would not be a public service. Unless you are a basketball player, learning to jump higher does not provide better access to basic social goods, nor does it improve your participation in modern life.

Thus, the nature of higher education as an activity is such that the private university ends up fulfilling a public function. Its decisions on curriculum, admission and even the employment of professors remain subject to the mandate of fundamental rights.

This does not mean that all private spheres should be subject to fundamental rights. The Vice-Chancellor (VC) of the university can arbitrarily choose not to invite Dalits and Muslims to a small family event as she would not be making the decision in her capacity as VC. However, if it was a university event, she would be making the decision on behalf of the university as VC, thus fulfilling a public function.

The private university as an employer

In addition to the nature of the activity, it is the nature of the person or body carrying out an activity that determines whether the activity will fall within fundamental rights. The private university is an employer, while the professor whose job has been terminated is a mere employee. Although both may be private individuals, 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 fundamental social goods – non-interference, valuable opportunities and the Self respect. Arbitrary termination of employment would disrupt the professor’s access to these assets.

In fact, the job offered by the university strongly controls the level of self-respect an employee enjoys. The sudden disruption in employment would stop the flow of income. As a result, the position in the social circle of family and friends would weaken because the workplace is also the place where friendships are made. And through employment, one maintains financial stability to take care of 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 v Indian Union, held that “the meaning and extent of a fundamental right cannot be gleaned solely from the specific text. . . it must be gleaned from the matrices of interrelations with other fundamental rights and provisions in other parts of the constitution”.

The court must recognize that the private university performs the public function of educating people and holds a dominant position to control the resources and lives of its employees, just as a government university does. He must submit the decisions of the university to the fundamental rights which can be challenged in court. Such a judicial approach will improve access to justice in areas traditionally considered private.

Husain Aanis Khan is a lawyer and researcher at the Vidhi Center for Legal Policy, New Delhi.

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