At the first meeting held by Indian Council of Universities in New Delhi today, various Chancellors / Vice Chancellors representing central universities, state universities, private universities, deemed universities and institutions of national importance, discussed on newly framed higher education laws by the ministry. Mr. Oscar Fernandes, Member of Parliament (Rajya Sabha) & Chairman of Parliamentary Standing Committee on Human Resource Development inaugurated the meeting and participated in the discussions.
The discussions on the various points took place with Shri Oscar Fernandes, Member of Parliament (Rajya Sabha) & Chairman of Parliamentary Standing Committee on Human Resource Development: including the Constitutional Validity of higher education laws introduced in the Parliament. The Council discussed that all the higher education laws including ‘The Educational Tribunals Bill, 2010’, ‘The Prohibition of Unfair Practices in technical educational institutions, medical educational institution and Universities Bill, 2010’ and ‘The National Accreditation Regulatory Authority for Higher Educational Institutions bill, 2010’ and ‘The Foreign Educational Institutions (Regulation of entry and operations) Bill, 2010’as well as ‘Higher Education and Research Bill, 2010’ yet to be introduced in the Parliament, are unconstitutional and their constitutional validity needs to be checked.
Referring the Constitution of India the council referred following points:
(i) Constitution of India categorically prohibits Parliament from regulating higher education while empowering States to do so. Parliament can maximum coordinate and determine the standards of Higher Education but CANNOT Regulate it. Parliament is even not permitted to incorporate and wind up universities.
Entry 44 in the Union list reads “Incorporation, regulation and winding up of corporations, whether trading or not, with objects not confined to one State, but not including universities” thus clearly PROHIBITS Parliament to incorporate, regulate and wind up the universities.
Entry 32 of the State List reads “Incorporation, regulation and winding up of corporation, other than those specified in List I, and universities; unincorporated trading, literary, scientific, religious and other societies and associations; co-operative societies” and hence in specific EMPOWERS State Governments to Incorporate, regulate and wind up universities.
Entry 66 of Union List when is read with the Entry 25 of the Concurrent List, in specific restricts the power of Central Government only to Determine and Co-ordinate standards of Higher Education or research and scientific and technical institutions only. Entry 66 NOWHERE EMPOWERS Central Government to Regulate and Maintain Higher Education and Research. Regulation is Under the Jurisdiction of the State Government ONLY.
Observations in the Supreme Court Judgement in case of Private Universities of Chhattisgarh (Prof. Yashpal & Anr. Vs. State of Chhattisgarh & Ors.) on the legislative competence of the Centre vis-à-vis States on matters of education and universities made without taking cognizance of the Entry 44 in Union List do not stand valid to support this case and also cannot be referred or taken as a precedent for resolving any controversies arising on this issue.
In the case of State of Bombay vs. Narottom Das Getha Bhai (IR 1951 SC 69), the Supreme Court clearly held that when one item is general and another is specific, the latter will exclude the former. Subject of legislation on matters of incorporation, regulation and winding up of universities even if it otherwise falls with the large field of “education including Universities" by item 25 in Concurrent List or “coordination and determination of standards in higher education” by item 66 in Union List, power to legislate on that subject cannot lie with the Parliament as this power is excluded from the purview of the Union Government by a specific entry 44 in Union list and is exclusively entrusted to the State by a specific entry 32 in State list.
However all the new higher education laws are to provide inter alia for the establishment of regulatory authorities; and/or to regulate the operations of the universities and other institutes of higher education. Besides this, these laws are to deal with matters of incorporation and winding up of universities. No university will be allowed to commence its operations unless authorized by the regulatory body to be created at Central level, as proposed in Higher Education and Research Bill, 2010 and it will be even empowered to wind up any university. Each new higher education bill does also specifically empowers the Central Government and/or concerned regulatory authority to make rules/regulations for the purpose of carrying out the provisions of that legislation to be further complied by the universities and other institutes of higher education.
(ii) Parliament cannot set up a Tribunal for Education related matters.
Article 323A and Article 323B are the only Articles found in the Constitution which deals with Tribunals and do not contain any provision of Tribunal for matters of education. Thus neither the Centre nor the States have been entrusted with the power to make a Tribunal to deal with the matters related to education.
The extended scope of these articles as defined in the Supreme Court judgment in case of State of Karnatka v. Vishwabarathi House Building Co-operative Society, air 2003 SC 1043: (2003) 2 SCC 412: (2003) Comp Cas 536, although empowers a legislature for establishing tribunals not covered by these articles, but as long as there is legislative competence under an appropriate entry in the Seventh Schedule. Parliament as is not competent to legislate on matters of incorporation, regulation and winding up of universities mainly representing higher education, the Educational Tribunals Bill, 2010 framed for the purpose of universities and other institutions of higher education cannot be enacted by the Parliament.
All the new higher education bills thus militate against the express provisions of the Constitution and the concept of separation of powers. These Higher Education Bills lack legislative competency and ultra-vires the Indian Constitution and if made as a law will be void.
Therefore, all the new higher education bills are urgently required to be referred to the Solicitor General or a committee headed by a Supreme Court Judge or any other competent authority, other than those are already involved in framing these bills, to check the validity of these laws in view of constitutional provisions distributing the legislative powers related to higher education among states and union government.
Parliament can be empowered to enact the new higher education laws so framed only after making amendment in the Constitution of India. After constitutional amendment, national consensus should also be obtained before framing any law for the purpose of higher education by giving a fair opportunity to all the stakeholders including academicians, universities and other institutions of higher education, associations and other organizations engaged in the field of education, industry, students as well as States and other concerned to deliberate upon these bills in detail and share their views as they can contribute much better towards reforming the higher education system of the country.
