COMMENTARY

The Draft Higher Education Bill, 2010: A Critical Review

T C A Anant, B Venkatesh Kumar

Three years after the National Knowledge Commission submitted its report suggesting that there is a need to create an overarching regulator in higher education, the Ministry of Human Resource Development has finally come out with a draft Bill. This article reviews this Bill and finds that it seeks greater centralisation of power, essentially in the appointment of vice chancellors and on issues which traditionally should fall within the domain of universities. Although there is a need for a new regulatory system in place, this has to be more like a facilitator and as a catalyst in enabling universities to pursue teaching and research within an autonomous, and yet, accountable framework of self-governance.

he Ministry of Human Resource Development (MHRD) has come out with a draft bill towards the establishment of the National Commissionfor Higher Educationand Research (NCHER) which was recommended by the Yashpal Committee (YPC) in 2009. Prior to this, in 2006, the National Knowledge Commission (NKC) had also emphasised the need to create an overarching regulator in higher education.1 Currently, this draft Bill is being debated through a process of public consultation, initiated by the MHRD. The draft Bill, we believe, seeks greater centralisation of power, essentially in the appointment of vice chancellors and on issues which traditionally should fall within the domain of universities, thereby seriously jeopardising the autonomy of the university system. We further argue that, while there is a need for a new regulatory system in place, this has to be more like a facilitator and as a catalyst in enabling universities to pursue teaching and research within a framework of self-governance and autonomy. Our assessment of the Bill notes that it is likely to cause more harm than good, a clear case of the path to hell being paved with good intentions.

Given such an indictment of the present framework, one would expect that a reform bill would seek to create a simpler, less-intrusive regulator that would seek to strengthen the university system by creating a conducive environment for greater autonomy, and quality awareness in our universities. We examine here certain key elements in the draft Bill in light of these expectations.

Appointment of Vice Chancellors

This is one of the core and critical areas of university functioning which has been emphasised by both NKC and YPC as needing reform. The procedure for appointment of vice chancellors and heads of institutions of national importance has a critical requirement that
No person shall be eligible for appointment as vice chancellor of any University or head of an institution of national importance unless his name is included in the National Registry of persons eligible and qualified for appointment as vice chancellor or head of institution of national importance. .

Background
The NKC in its report on higher education noted a sorry state of affairs and ascribed this in part to the framework of governance. They noted that:
The present regulatory system in higher education is flawed in some important respects. The barriers to entry are too high. The system of authorising entry is cumbersome. There is a multiplicity of regulatory agencies where mandates are both confusing and overlapping. The system, as a whole, is overregulated, but undergoverned. NKC perceives a clear need to establish an Independent Regulatory Authority for Higher Education (IRAHE) (NKC, 29 November 2006).

T C A Anant (tca.anant@gmail.com) is with the Delhi School of Economics, Delhi. B Venkatesh Kumar (venk71@gmail.com) is with the Tata Institute of Social Sciences, Mumbai.

This registry will be maintained by the proposed NCHER on the basis of names recommended by the collegiums. At present the selection of vice chancellors is carried out by the institutions as per the provisions of their different statutes. The registry as well as the collegiums are flawed concepts. We examine the reasons in some detail. The collegiums will consist of both core and co-opted members. The Bill gives four categories of core life members; there are three sharply defined categories of national research professors, Nobel Laureates and Field Medal awardees and Jnanpith awardees; and a fourth, somewhat loosely defined, cate gory which refers to membership of an Academy of International Standing. The co-opted members are to be selected by the core members from the panels recommended by the state governments and union territories. The selection is supposed to be by a preferential voting system. The sharp categories listed for core members seem idiosyncratic and lead one to speculate on the criteria for inclusion given that a number of other merit-driven

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recognitions have been excluded, for example, Sahitya Akademi, Padma awardees, Indian Council of Social Science Research (ICSSR) national fellows, Bhatnagar awardees, etc. Further, the size and age of these three categories make one wonder of how many will effectively be available for this work. One should note that national research professors are limited to 12 at any time and are typically well over 70; Nobel Laureates and Field Medal awardees, who are also citizens or overseas citizens of India, are at best three i ndividuals at present.2 The group of J nanpith awardees is similarly small and they are all literary figures who are not necessarily academics and are on an a verage even older than the national r esearch professors. The last category is vague and mischievous. It talks about being a member in an Academy of International Standing. A phrase whose meaning is not at all clear. Does it refer to the membership in national academies of other countries as many countries have national academies with overseas members? But there is a vast variation in the quality and methods of selection between the academies in the United Kingdom (UK) and the United States (US) on the one hand, and those in the erstwhile eastern bloc, on the other. Then there are a whole range of private societies, some explicitly international in scope and others are local; these societies also have an extraordinary variation in quality. Some are genuine academic fellowships as in the case of the Econometric Society and many others who will effectively enrol anyone who is willing to pay a fee. The vagueness of these categories implies that it would need the enlightened assessment of the same government which the collegiums seeks to keep at an arms length. The status of our national academies is also not clear in this definition: Are they of international standing? They too honour, like other national academies, overseas fellows. However, the better known of these academies in India are all in science. If these are included, then, the number of core fellows in the collegiums jumps manifold but all of them in sciences with virtually no member in social sciences and humanities. In social science, we have assorted private bodies such as the Indian Academy of Social Sciences about which

little is known. If the list is expanded to include state academies and private academies, then almost anyone can become a member. Further, the Bill also provides for co-opted members, who are to be selected by the core members from amongst panels recommended by the state governments and union territories. It is not clear what happens if a state panel is rejected. In the recent past, states have a ppointed people with corruption and criminal charges against them as vice chancellors.3 The composition of the collegiums is important because unless the collegiums command universal academic credibility, its decisions will not have the desired legitimacy. The ambiguity in composition implies that in its initial years the focus will be on the category of research professors. The collegiums will have to maintain a registry capable of supplying panels of names for the position of vice chancellor in various central and state universities over 300 universities and and/or heads of institutions of national importance. At a simple count, this registry would need to have at least 2,000 names. The task of collecting names, their curriculum vitae, verifying their credentials, etc, is huge. Small collegiums will clearly require to rely on the good offices of the secretariat assisting them. Thus effectively making the registry under the

control of the same bureau cracy from which it is sought to be liberated. And the large collegiums will almost certainly include people who aspire for appointment to such posts which are proposed to be filled. In the past we have seen examples of members and chairs of search committees seeking similar posts for themselves under the same government, with consequent lack of transparency. We must further note that the involvement of national professors in this process will imply that in the future selection of such national professors will also be influenced by the potential role they will play in the collegiums leading to even greater incentives for the politicisation of these awards. This clause in the proposed Bill is one of the central areas of concern, and is likely to impinge on the freedom and autonomy of institutions and other stakeholders, who at present view this in their domain. This includes both other ministries and state governments. It is not clear how this will be viewed by minority institutions, who are under the Constitution protected in their rights to manage their institutions. All of these lead one to wonder whether this proposal is in conformity with the doctrine of separation of powers implicit in the Constitution which gives minorities and states to operate educational

National University of Educational Planning and Administration (MHRD, Government of India)

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institutions as per their requirements and choose their people. The proposed registry will, in order to meet this latter challenge, need to be inclusive of all such categories, and geographically representative, be a mindboggling task. This power grab was completely unnecessary. What was required was an insistence on a search committee model drawing upon eminent academics, as described both in NKC and YPC, which observes principles of transparency and fairness.4 The proposed commission could have been given some power to review the process and advice or mandate changes without necessarily taking on itself the obligation of supplying names and maintaining a registry. Eliminating the registry will also effectively eliminate the need for the collegiums and can make for a simpler and leaner NCHER. It is possible, if this power grab is removed, then some of the turf objections by agriculture, medical or even state governments may be avoided.

The Commission The principal aim of the Bill is to establish the NCHER. The proposed commission is sought to be made autonomous on the lines of the Election Commission of India. It will have six members (three full-time and three part-time) and a chairman. The commission will be the principal regulator combining the tasks of the University Grants Commission (UGC), All India Council for Technical Education (AICTE), N ational Council for Teacher Education (NCTE) and other bodies under the MHRD. The appointment is to be done through a committee consisting of the prime mini ster, the speaker of the Lok Sabha, the leader of the opposition and the ministers of higher education and the minister-incharge of medical education on the basis of names suggested by the collegiums. The idea of clearly defining the search committee is good. There is an attempt to include bipartisanship by referring to the inclusion of the leader of the opposition. We feel that it will be both desirable

and prudent to have a bipartisan search committee, but the current proposal does not go far enough. Its composition is likely to invite allegations of bias, and would therefore, suggest a following simpler more inclusive classification consisting of the prime minister, the speaker of the Lok Sabha, the chairman of the Rajya Sabha, the leader of the opposition and the chairman of the public accounts com mittee. Having such a committee that in addition to bipartisanship also includes voices of both the upper and lower houses of Parliament will in our judgment help in raising the status of such a commission above party politics. Such bipartisanship does not exist, at present, even for the Election Commission, but will in our view create the basis for healthy parliamentary practices. The draft Bill proposes three part-time members and three full-time members. The proposal suggests that the full-time members be persons of eminence and standing in the field of academics and

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research; the requirements for part-time members in contrast, states that (they) can be in addition to being persons of eminence with high academic credentials with proven contribution to economic and social development. The reasons for this distinction are not clear and may well be mischievous.5 The NKC had clearly said that all members should be eminent academics.6 In addition, the reference to different types of members raises issues of relations amongst the different categories. Here as in the models of corporate governance, the role of non-executive members (part-time in this case) in supervising the executive and constituting key committees for internal audit and remuneration for the full-time members should be c learly delineated. Further, the draft bill states that in case of a conflict between the regulator and the government on a matter of policy the view of the president will be final. This effectively means that the concerned ministry of the government can overrule the regulator. In the past, in other cases as in the Telecom Regulatory Authority of India, this type of proviso has led to a lot of conflict between the regulator and the ministry. Given the stated objective of maintaining an arms length distance from the govern ment, and further, the reference to the Election Commission, where no ministry has any such authority, why should such disputes not be referred to the tribunal or if need be, the Supreme Court. This clause is completely anachronistic given the purpose of the Bill. The functions of the commission are also a source of concern. The draft Bill proposes combining the regulatory, funding and promotional roles in higher education under a single body. In particular, it is possible of conflicts developing between these different roles. In which case there is a fear that the regulatory burden may be compromised to meet funding or promotional objectives. This conflation of objectives has been one of the major reasons for the failure of the UGC and other bodies. Ideally, funding as with accreditation should be hived off to a separate body. In addition, the Bill provides a vast list of areas to be brought under the uniform regulation of the commission. These

i nclude areas like curriculum, affiliation of colleges, etc. These have traditionally been under the purview of universities and this type of rule-making goes against the stated larger objectives of university autonomy and the development of the university as a self-regulating structure. Instead of mandating areas of rule-making, it would have been better if one were to use the current phrasing from the UGC Act mandate a duty to take, in consultation with the universities or other bodies concerned, all such steps as it may think fit for the promotion and coordination of university education. And instead, provide steps making such consultation genuinely open, transparent and participative.

essential for the effective fulfilment of this desire. This will be possible through enabling both the provisions in the NCHER Bill and the regulator being the empowered authority to deal with states on matters of central funding to states in the areas related to higher education. Further, states would not automatically respond to directives of the centre, local pressure through stakeholder participation and social audits in a manner analogous to the N ational Rural Employment Guarantee Act would clearly be one way of an effective governance and delivery mechanism. This will need changes both in the mindset in Delhi and the states as well as in our universities.
Notes
1 References to NKC are to the Letter to the Prime Minister Dated 29 November 2006 and the associated note on higher education (http://www. knowledgecommission.gov.in/focus/higher.asp accessed on 27 February 2010) and the reference to the Yashpal Committee (YPC) refers to the report of the committee to advice on Renovation and Rejuvenation of Higher Education (http:// www.education.nic.in/HigherEdu/YPC-Report. pdf ) accessed on 27 February 2009. 2 Note that the award to the Intergovernmental Panel on Climate Change (IPCC) was to an organisation. Individuals working for the IPCC are not themselves recipients of the Nobel Prize any more than employees of the United Nations were in 2001. 3 Yashpal Committee (2009). 4 This was for instance attempted recently in M aharashtra. What is needed, however, is for the proposed NCHER to monitor this process and ensure that state governments adhere to announced principles of openness and fairness. 5 Enabling membership from the senior civil services who are not academics but may have academic credentials. 6 The IRAHE would be constituted as follows. It would have a chairperson and six members. . The members would be distinguished academics drawn from the following sets of disciplines: physical sciences, life sciences, social sciences, humanities and professional subjects such as engineering, medicine, law or management (NKC, November 2006).

Conclusions
In conclusion, there is clearly a need to reform the legal framework in higher education. This case has been cogently made by the NKC and reiterated by the YPC. However, in our judgment, the present Bill fails in its objectives to reform the existing laws, and must, therefore, be returned to the drawing board. We would further like to emphasise that any Bill seeking to r eform higher education must view universities as equal and valuable partners in the exercise. The effort of the law should be to protect and enhance autonomy and internal governance mechanisms of the university rather than to centralise power and increase the scope of patronage in central or state bureaucracy. To this end, we recommend that the entire segment of the Bill dealing with the appointment of vice chancellors be dropped and drastically restricted. The NCHER should be a guardian on behalf of the universities and should protect them from encroachment by state and central government. In order for this to be possible, it is necessary that the universities and academia at large have ownerships and stakes in the proposed NCHER. It goes without saying that the governance structure in the universities needs to be improved but this cannot happen through a hierarchical process of a master-servant relationship, where universities are perceived to be the recipients of orders from any centralised bureaucracy. Finally, we must note that compliance and participation of state governments is

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