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Why lawyers should oppose – ‘The Higher Education and Research Bill, 2011’?

We should be thankful to BCI to attract the attention of All Indian lawyers on ‘The Higher Education and Research Bill, 2011’ (herein after referred as Bill) and thereby spread awareness about the upcoming bill which is already introduced in the Rajyasabha. Of course, I won’t enter into the controversy over the legality of strike called by the BCI but I would like to throw light upon the Bill.

The Bill defines Higher Education as “such education, imparted by means of conducting regular classes or through distance education systems, beyond twelve years of schooling leading to the award of a degree or diploma; and includes research associated with such education.”

Further, Bill also defines Higher Education Institution as “an institution of learning including a university, an institution deemed to be university, a college, an institute, an institution of national importance declared as such by an Act of Parliament, or a constituent unit of such institution, a polytechnic or other institutions in vocational education, which is imparting by means of conducting regular classes or through distance education systems, higher education or research therein.”

In short the Bill is applicable to all the Universities, Deemed Universities, colleges and such other educational institution providing post 12th Education.

The present Bill will establish ‘National Commission for Higher Education and Research’ (NCHER) which shall be a corporate body having its Headquarter at Delhi.

The commission will consist of Chairman, three whole time members and three part time members appointed by the President. Further, the member of the National Commission of the Human Resources for health will also be a ex-officio member of the NCHER. The term of the Chairman and members shall be for period of five years or until attaining the age of 70. At this juncture, I must point out that the National Commission of Human Resource for Health Bill also is in controversy and widely opposed by the medical practitioners of our country.

There shall be Selection Committee for the Members of NCHER, which will consist the PM, the Speaker of Loksabha, the leader of Opposition in Loksabha, Ministers in charge of Higher Education and Medical Education. In short the appointments shall be political appointments subject to qualifications laid down under the Bill.

Most importantly the act or procedure cannot be challenged on the ground of defect in the constitution of commission or defect in appointment of person or irregularity in the procedure. That means the Commission shall be holding immense autonomy in its functions.

Following are further features of the Bill: (Source from the Mr. Kaushik Sanyal’s Article published on the www.prsindia.org)

  • The Bill establishes a General Council to advise the NCHER on issues such as access, adequacy of funding and quality.  The Council shall consist of members of the NCHER, representatives of State Higher Education Council, heads of each professional body and research council, one Director of each  IIT,  IIM and National Law Universities etc.
  • The Bill also establishes a Collegium, which shall consist of 30 Fellows who are citizens or overseas citizens of India, a National Research professor or recipient of specified awards.  The Selection Committee shall consist of five members including the Prime Minister, Speaker of the Lok Sabha and the Leader of the Opposition in the Lok Sabha.   It shall recommend a vision on the emerging trends in different fields of knowledge, recommend persons for inclusion in the directory of academics eligible to be appointed as Vice Chancellors, and assess the performance of the NCHER based on the reports filed by it.
  • The functions of NCHER include (a) promotion of autonomy in educational institutions; (b) promotion of a curriculum framework with specific reference to emerging or inter-disciplinary fields of knowledge; (c) promotion of coordination between educational institutions and industry for innovation; and (d) taking measures to enhance access and inclusion in higher education.
  • The NCHER may, with prior approval of the General Council, make regulations specifying standards of higher education and research.  The regulations may specify requirements for award of a degree or diploma, specify norms of academic quality for accreditation, specify norms for establishment and winding up of educational institutions, regulate entry of foreign educational institutions, and specify standards for appointment of Vice Chancellors.
  • The NCHER shall maintain a directory of academics eligible for appointment as Vice Chancellors or Head of a central educational institution.  The directory shall be prepared by the Collegium. NCHER shall recommend a panel of three names from the directory when asked to do so by the central government or a central educational institution.
  • Every educational institution which intends to enroll students for the first time shall inform NCHER along with its accreditation report.  NCHER has to notify the institution within 120 days whether it can proceed with the enrolment.  The NCHER also has the power to revoke such permission.  An order of the NCHER can be appealed in the National Educational Tribunal (to be established under the Educational Tribunals Act, 2011).
  • The central government shall establish a Board for Research Promotion and Innovation to recommend measures to the NCHER to facilitate research.  The Board shall consist of a Chairperson and 12 members appointed by the NCHER on the recommendation of the Collegium.
  • The central government shall establish the Higher Education Financial Services Corporation, which shall disburse grants to educational institutions based on norms to be specified by the NCHER.
  • The central government shall establish Qualifications Advisory Councils in vocational education.  Each Council shall be headed by a Chairperson and eight members.  Each Council shall be appointed for a specific skill area and shall made recommendations on qualification framework, accreditation norms etc.
  • Any difference of opinion between the NCHER and the National Commission for Human Resources for Health shall be referred to a Joint Committee.
  • Each financial year, the NCHER shall furnish a statement of estimated expenditure for development of higher education and research.  The accounts shall be audited by the Comptroller and Auditor General of India.
  • The central government has the power to supersede the NCHER, General Council, Board or Corporation for a maximum period of six months if any of them are unable to discharge their functions or persistently defaults in complying with directions of the central government.

 

Now let us consider why the BCI is opposing the Bill.

The Advocates Act 1961 provides the functions of the BCI with consultation to the State Bar Council. The following provisions are overriden by the present Bill which directly affects the BCI and the Advocates of our country:

S.7:

(e) to promote and support Law reforms

(h)  to promote legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and the State Bar Councils;

(i) to recognise Universities whose degree in law shall be a qualification for enrolment as an advocate and for that purpose to visit and inspect Universities or cause the State Bar Councils to visit and inspect Universities in accordance with such directions as it may give in this behalf;

 

In short, the elected members of Bar Council who are the representative of the Advocates in India won’t be able to influence policy decisions or won’t be able to take decisions on the Legal education for lawyers, and it will become merely a toothless body as far as legal education is concerned.

Recently, discussion was triggered whether national law schools are serving the purpose to provide better advocates for our country? Indeed, they are providing best lawyers for non-litigation purpose or to serve the corporate sector but not better Advocates to deal with litigation in all the courts throughout India.  Similarly, the present bill may be helpful to produce best lawyers but won’t be able to produce best advocates as there is no participation of the Advocates in country. In the present Bill, the director of the National Law School may have his say to influence legal education but the democratic body of the Advocates won’t be able to influence and/or guide legal education system in any manner. In short, the persons who are not advocates will decide the fate of persons who are aspiring advocates. What can be the worse than this?