EVERY Human Resource Development (HRD) minister in recent times has cherished visions – or fantasies – of changing the world, but surprisingly little attention has been paid within India’s university system to legislative measures that may change it beyond recognition. In practice, there appears to be a radical disjuncture between a hyperactive and even delusional ministry and a self-absorbed, often apathetic academic body. Indeed such initiatives as there are appear to be taken by the wrong persons for the wrong motives.

In November 2010, a group of (mainly private) institutions calling itself the Indian Council of Universities (ICU) met Oscar Fernandes, Rajya Sabha member and Chairman of the Parliamentary Standing Committee on Higher Education, to urge that the bills the government had been trying to push through were unconstitutional and would be void in law unless preceded by a constitutional amendment. Their argument was that Entry 44 in the Union List prohibits the central government from incorporating, derecognizing or regulating universities, a power vested in the states by Entry 32 in the State List. Entry 66 in the Union List, read with Entry 25 in the Concurrent List, limits Parliament to the function of determining and coordinating standards of higher education and research. Further, the Constitution does not allow education to come under the purview of a tribunal, as proposed in the Educational Tribunals Bill, 2010.

Nothing further has been heard of this possibly untenable argument, which was clearly advanced by the ICU in its own interests, since the government has moved to derecognize deemed universities and to prohibit unfair practices such as the charging of capitation fees by private medical and technical institutions. It would be surprising to learn that the central government cannot incorporate a university, given the rapid increase in the number of central universities. Nevertheless, the argument that the new bills militate against the constitutional principle of separation of powers, arrogating to the Centre rights that are vested in the states, is an interesting one in the current climate of parliamentary action, which has certainly both ignored and alienated the states – and, by implication, state universities.

The tenure of the current HRD minister has witnessed a flurry of new legislation intended to overhaul, shake up, and reform higher education in India, with the express purpose of making India, in the new millennium, a knowledge economy. I have written elsewhere on the deep misconceptions that inform this enterprise, and will not repeat those arguments here.¹ But the drawing up of new higher education bills and the creation of new institutions followed directly upon the reports submitted by the Yash Pal Committee and the National Knowledge Commission in 2009, ignoring, to a considerable extent, their differences and disagreements.²

 

There can be no doubt that among the most important of all the laws enacted by this government is the Right of Children to Free and Compulsory Education Bill (RTE 2008). Although this does not relate to higher education, it has the widest sphere of influence, and the most important consequences, of any measure so far undertaken. The RTE Act was approved by the Union Cabinet at a meeting on 30 October 2008, after three years of intense argument over its contents. It was passed by both the Lok Sabha and the Rajya Sabha on 20 July and 4 August 2009, notified as law on 3 September 2009, and came into force for all states of the Indian Union excepting Jammu and Kashmir on 1 April 2010.

The act made education a fundamental right for children between six and 14, a long-delayed implementation of a directive in our Constitution. It also stipulates that 25% of seats in private schools be reserved for students from economically weaker backgrounds. This stipulation, ignored and in some cases challenged in court by private schools, has recently (on 17 February 2011) been reiterated by a three-judge bench of the Supreme Court headed by the Chief Justice of India.

 

Since education is a subject on the concurrent list, the Centre and the states are also divided over who should pay for this. The cost of implementing the law is estimated at Rs 55,000 crore a year, to be divided in the ration of 2:1 between Centre and states. But it is uncertain whether it can be made effective given the inefficacy of laws prohibiting child labour, marriage of minors, and dowry, the first two practices directly connected to the possibility or otherwise of universal schooling. The act requires the establishment of a sufficient number of neighbourhood schools with adequate infrastructure and staff, a mammoth task compounded by India’s extreme linguistic and ethnic diversity, and the rapidly growing class divide between the privileged minority in private schools using English as the medium of instruction, and the mass of ordinary learners in state schools.

I would suggest that the most important implication of the act is that it recognizes education as a public good, a much-debated issue in economic theory. This is a critically important recognition, part of the vision enshrined in our Constitution, though one that is under attack from free market economists who claim that education, especially higher education, cannot be a public good. Neither of these two camps is willing to bring the debate out into the open, though some of the tensions were apparent when the economist Kaushik Basu submitted a note of dissent (advocating the privatization and commercialization of universities) to the Yash Pal Committee’s Report on Higher Education (2009), which recommended more public funding and state control.

Yet, even in countries where a considerable proportion of educational institutions are privately funded, the state also contributes significantly. In 1996, India set itself the goal of spending 6% of its GDP on education, but its GDP has grown too fast and the state has lagged far behind to achieve more than a spending rate of around 4%. In its ‘Report to the Nation’, the National Knowledge Commission put it at only 3.6% during the last plan period. Of this, about 0.37% was spent on higher education, while the OECD’s figures for roughly the same period in ‘Education at a Glance’ estimated an expenditure of 2.9% in the US and 1.3% in the UK. The present commitment is to spend 5% of GDP on education during the eleventh plan, which will run until 2012.

 

Not only does the RTE Act establish basic education for all as India’s first priority, it implicitly requires a huge increase in higher education opportunities for the projected school-leavers. Given that entry to higher education is based on merit and not all will qualify, the national educational policy has assumed that the benefits of education (at all levels) are non-exclusive, and India’s higher education system is still largely state-funded, partly through the imposition of an education cess. The Knowledge Commission noted that the gross enrolment ratio (GER) for higher education was around 10%, as against a rate of 25% for many other developing countries including those in Asia (figures cited for the USA, UK and Japan are 81%, 54% and 49% respectively).

To achieve a GER of 15% by 2015, India requires at least 1500 universities. At present there are around 400, in contrast with 900 in Japan and over 2000 in China. Many of these universities are much too large and unwieldy, and need to be broken up into smaller institutions. Forty-four ‘deemed’ universities were derecognized on the advice of the P.N. Tandon Committee, but the MHRD has recently offered them a reprieve on the condition that they improve their facilities over the next three years. Inevitably then, the reports of advisory bodies and recent policy initiatives have focused on the provision and regulation of higher education for the quantum leap envisaged in the number of school-leavers.

 

This brings us, then, to the specific bills concerning higher education, those listed, for example, as ‘Policy Pronouncements’ on the MHRD Department of Higher Education website, together with suggested academic reforms (such as semesterization, the credit system, continuous evaluation, interdisciplinarity, competitive admissions, and upgrading of teachers’ qualifications). Five bills are mentioned here, which may be some indication of their importance for this government, given that other legislation of this kind (especially with regard to setting up new Institutes of Technology and Universities for Innovation) is also in process. These are the National Commission/Council for Higher Education and Research Bill (framed in 2010 but now revised to be introduced in the budget session of 2011) and, pending from 2010, the National Accreditation Regulatory Authority for Higher Educational Institutions Bill, the Prohibition of Unfair Practices in Medical Educational Institutions, Technical Educational Institutions and Universities Bill, the Educational Tribunals Bill, and the Foreign Educational Institutions (Regulation of Entry and Operations) Bill (Nos. 54-57 of 2010). Of these, the Educational Tribunals Bill (No. 55 of 2010) was actually passed by the Lok Sabha in August 2010 (though the Standing Committee recommendations were not incorporated), but subsequently rejected by the Rajya Sabha in an acrimonious debate led by a Congress member, at which the HRD Minister, Kapil Sibal, complained about the party’s floor managers. The other three are still, at the time of writing, under consideration by the Parliamentary Standing Committee for Higher Education.

 

The full text of each of these bills is in the public domain, and should have attracted far more attention from the academic community. Taken together, they constitute not just a massive central intervention in higher education, but an attempt to bring the entire field under the direct control of new, centralized regulatory authorities – that is, a centralized bureaucracy. Unsurprisingly, even as they show a lack of confidence in existing institutions, they do not open up the field by devolving power and encouraging autonomous action, simply replacing one set of controls by another. The alarm of private players in the market is perfectly understandable: what is more astonishing is the silence of state governments which have been bypassed at the planning stages and must witness the birth of a lavishly funded central superstructure designed to destroy their jurisdiction.

 

The NCHER Bill intends to replace the UGC and AICTE, though not the Medical Council of India, by a single regulatory authority. The detailed prescriptions for the appointment of the chairperson and the constitution of the collegium for this body seem to me impractical, even delusional. For example, the core fellows of the collegium (with the power to elect their associates) should be National Research Professors, Nobel Prize or Fields Medal winners, Jnanpith awardees, or members of academies of international standing. One can foresee a rush of persons from this last, ill-defined category, and deep unwillingness on the part of all the others. But their powers in appointing vice chancellors and constituting selection committees for all universities, central and state, are so overriding as to be seriously disturbing.

On the one hand it is hard to imagine a single body attending to these tasks for every university in the land; on the other, this would contravene the provisions of most state university acts. While the purpose of this National Council is to replace an ineffective UGC and corrupt AICTE (also central bodies), I see no assurance of better management and greater transparency. Given the UGC’s objections, there was talk of the new NCHER as an apex body rather than a replacement (thus multiplying bureaucratic levels, always favoured by officialdom). But the available text of the bill does not suggest this.

The National Accreditation Regulatory Authority Bill does in fact propose a new apex body, retaining all the existing ones – and new ones that might be constituted. It does not replace the NAAC, but establishes a watchdog authority to regulate the accreditors and to make accreditation mandatory. The bill mentions the UGC (though this body will presumably cease to exist), but insists that even recognized universities must be accredited by a body licensed by the regulatory authority, which will lay down and periodically revise accreditation norms. What is truly perplexing about this bill is a lack of clarity as to the nature of the accreditation body itself. Is this to be NAAC, or something that replaces the defunct AICTE and MCI, or something else? At present, accreditation by NAAC is voluntary, not compulsory, and even so, given the number of universities and colleges in India – numbers set to increase – it is unlikely that all could be newly accredited within a three year or five year period.

 

If the NCHER and NARA Acts seek to regulate higher education, the Prohibition of Unfair Practices and Educational Tribunals Bills set up a structure for meting out penalties, and settling disputes, of various kinds. The first, directed against malpractices such as the demanding of donations or capitation fees in institutes of medical or technical education, has been positively received except by the offenders themselves. But, as most commentators point out, it is already illegal to charge capitation fees (see the 1993 Unnikrishnan case), and the bill does not alter the enforcement mechanism, though it imposes higher penalties (upto Rs 50 lakh).

The bill also states that its provisions do not impinge upon the right of minorities to administer educational institutes – are they then exempt from its prohibitions, especially with respect to fees? Currently, fees and admission procedures in private unaided institutions are regulated by the states, with some intervention in the public interest by the UGC. If the state governments are to be rendered inactive, what enforcement instruments are envisaged by the bill for those institutions which defy its prohibitions?

The Educational Tribunals Bill proposes that penalties be imposed by state and national educational tribunals. These promise fast-track resolutions of grievances relating to educational institutions in a two-tier structure, but signally fail to define their separate jurisdictions as against that of the courts. The bill attracted a storm of criticism in the Rajya Sabha last year, largely because the ministry failed to incorporate any of the corrections suggested by the Parliamentary Standing Committee. Instead, it persisted with the bill’s technical defects.

 

Yet though the foregoing bills give an impression of a hungry bureaucracy seeking to strengthen the Centre’s control over the entire field of higher education, there is also much official rhetoric about opening up higher education to private investment and foreign institutions. In fact the two are perfectly compatible, since new regulatory authorities need not prevent private and foreign players from entering the education market in India. They might instead facilitate their entry by removing some of the cumbersome older procedures of registration.

The Foreign Educational Institutions Bill is touted as a solution to the drain on national resources by students opting to study abroad. The MHRD estimates that Rs 27,000 crore per annum, more than twice the sum of the Union budget allocation for higher education (Rs 13,000 crore) are being spent on foreign education by Indian students, and permitting foreign universities to set up campuses in India would keep a large proportion of this money in the country and make up the shortfall in expenditure on education (from 3.78% of GDP at present to 6%) by adding substantial non-public investments.

It may be noted, however, that the best foreign universities are unlikely to invest heavily in postgraduate research and training in India, or to import their own faculty for this purpose, given that they are not permitted by the bill to repatriate any profits. They may create facilities for undergraduate study, with the intention of attracting students for postgraduate courses in the home country. But the bill does not require foreign education providers to offer courses that meet the criteria of India’s accreditation authorities. Their courses are only required to be comparable to those in their country of origin – this being no easy matter to verify. Moreover a large number of exemptions are proposed on the basis of the reputation and standing of the foreign institution, while Indian institutions must submit to regulations. Will foreign and private universities abide by India’s mandates of affirmative action for the socially or physically disadvantaged? Who will regulate their fee structure?

 

In a recent article in The London Review of Books, Howard Hotson has challenged the assumption, popular in neoliberal circles, ‘that the introduction of market forces into the higher education sector will simultaneously drive up standards and drive down prices.’³ In the United Kingdom, where the Browne Report envisages less and less public funding for universities, encouraging them to raise funds from higher fees, the American model has proved a seductive one, despite evidence that shows it to be wasteful, inefficient and not conducive to quality. In India, higher education has traditionally been funded by the state: more specifically, by the states, since a majority of universities (including the oldest, the Presidency universities of Calcutta, Bombay and Madras) are state institutions, though a proportion of salaries and research funds come from the Centre through the University Grants Commission.

Historically, the universities of modern India emerged as the country’s first secular public spaces, ignoring distinctions of caste, class and gender, though these distinctions continue to operate at the school level. They were also unruly sites of political machination and disorder. But their ills were endemic to public education in India as a whole, in a climate of funding constraints and active degradation of teaching and research environments.

The new bills pending before Parliament will intervene in this field, but not by seeking the cooperation of the states in improving standards and extending educational opportunity. Rather, they impose legislative authority from above in the form of regulatory bodies, while setting up better funded central institutions and allowing private and foreign universities to offer educational services at market rates. The combination of an inexperienced but rigid administration, and new institutions tapping into the Indian bourgeoisie’s hunger for degrees and status, is likely to have disastrous implications for the public university system. It will lose its best faculty and researchers to higher-paying institutions, while it is starved of the funds needed to satisfy bureaucratic norms. Meanwhile, the new regulatory authorities are unlikely to prove any more efficient than the UGC or more honest than the AICTE. Those who forget history are condemned to repeat it.

 

Footnotes:

1. Supriya Chaudhuri, ‘What is to be Done? Economies of Knowledge’, Thesis Eleven 105(1), February 2011, pp. 7-22.

2. National Knowledge Commission, Report to the Nation, 2006-2009. Government of India, Delhi, March 2009. See http://www. knowledgecommission.gov.in/downloads/ report2009/eng/report09.pdf (Accessed 10 May 2011), and Yash Pal Committee, Government of India, June 2009. Report of the Committee to Advise on Renovation and Rejuvenation of Higher Education. http://www.academics-india.com/Yashpal-committee-report.pdf (Accessed 10 May 2011).

3. Howard Hutson, ‘Don’t Look to the Ivy League’, London Review of Books 33(10), 19 May 2011, pp. 20-22.