Higher education Bills unconstitutional

Updated on: Thursday, December 29, 2011

Three proposed Bills pertaining to higher education are unconstitutional, as Parliament lacks the legislative competence to enact them, according to the Association of Self-Financing Universities, New Delhi.

The body has appealed to the Union government to put on hold these legislation and hold talks with higher education institutions and other stakeholders on how to deal with the issues they seek to address.

“We consulted three former Chief Justices of India, and their opinion is that these Bills will go against the provisions of the Constitution and the [doctrine of] separation of powers. They will take away the powers of the State government,” Association president G. Viswanathan said in an interview to The Hindu.

The Bills are the Educational Tribunals Bill, 2010 that was passed in the Lok Sabha and is pending in the Rajya Sabha, the Prohibition of Unfair Practices in Technical Educational Institutions, Medical Educational Institutions and Universities Bill, 2010, and the National Accreditation Regulatory Authority for Higher Educational Institutions Bill, 2010.

The former Chief Justices, A.S. Anand, M.M. Punchhi and K.N. Singh, who were approached by the Association for their opinion on the validity of these Bills, especially in the light of appropriate entries in the Union and State Lists in the Seventh Schedule of the Constitution, reckoned that “Parliament does not have the legislative competence for matters of universities in view of clear exclusion of universities from Entry 44 in List I (the Union List) and express inclusion in Entry 32 of List II (the State List).”

While Entry 44 in the Union List deals with “Incorporation, regulation and winding up of corporations, whether trading or not, with objects not confined to one State, but not including universities,” Entry 32 in the State List refers to “Incorporation, regulation and winding up of corporations, other than those specified in List I, and universities, unincorporated trading, literacy, scientific, religious and other societies and associations, cooperative societies.”

Mr. Viswanathan, who is also the founder-chancellor of VIT University, said the Educational Tribunals Bill, if enacted, would mean that aggrieved institutions, teachers and students could not go to the High Court for immediate relief, but only to the tribunal. “The State tribunal has no powers to pass interim orders, so we will have to wait till the judgment is pronounced. And even after that, one can go only to the national tribunal, which also has no powers for granting interim orders.”

Noting that prohibiting capitation fees was the original intention of the law, Mr. Viswanathan held corruption as the main reason for institutions collecting capitation fees. “We, as an association, will support the government in abolishing capitation [fees], but unless corruption is eradicated, it cannot be curtailed.”

Asked to elaborate on corruption, he said: “There is corruption at various levels — it begins at the panchayat level, and [is there at] the district level, the State level and the national level. Either departments of the government or the regulatory authorities of the State and Central governments — all of them have to be paid now. And it has to be paid in cash.” If controls were increased, corruption would also increase, resulting in an increase in capitation fees.

Encourage competition

According to him, the solution lay in encouraging competition among institutions and creating enough seats for students. Harassment of those running institutions was a major impediment to the expansion of higher education. “Asking the government to fix the fees of institutions will inhibit competition. Only if there is competition, quality will go up and the cost of education will come down.”

Mr. Viswanathan said accreditation should not be made mandatory, as envisaged in the proposed law, but only voluntary. It should also be done by professionals and not solely by government agencies. “We want the Prime Minister's liberalisation policy in business and industry to be extended to education.”

He also favoured serious steps to attract talent to the teaching profession. And if at all foreign universities should be allowed to set up campuses in the country, they should be allowed to function with a local partner. They could be asked to bring at least 50 per cent of teachers from their own countries, and only reputed universities should be allowed to operate.

Higher education Bills unconstitutional

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