[dropcap]T[/dropcap]wo points are likely to strike the reader immediately, about the new proposed legislation, purportedly for the reform of higher education (HE) in India, titled the Higher Education Commission of India (Repeal of University Grants Commission Act) Bill 2018, especially when compared to the UGC Act that it intends to replace. One, the replacement of the word “university” with the phrase “higher education”; and two, the disappearance of the word “Grants”, with nothing specific replacing it. The implications of both are far-reaching, and will be engaged with in detail later. Before that, however, I would like to
- list some of the less immediately striking differences between the two legislations;
- outline their individual implications where necessary;
- and finally (though not necessarily at the end), analyse the larger picture that emerges, as a sketch of some fundamental changes in policy directions;
though not necessarily in this sequential order. I will conclude with a few comments on the implications of the timing of this proposal.
No clear rationale
The University Grants Commission Act was passed in 1956. It has since seen some amendments and elaborations, but has remained more or less the same since 1985, when it was last modified.
The mandate of this Act is:
- Promoting and coordinating university education.
- Determining and maintaining standards of teaching, examination and research in universities.
- Framing regulations on minimum standards of education.
- Monitoring developments in the field of collegiate and university education; disbursing grants to the universities and colleges.
- Serving as a vital link between the Union and State governments and institutions of higher learning.
- Advising the Central and State governments on the measures necessary for improvement of university education.
If the draft HECI Bill is passed, the UGC Act will automatically stand repealed, and the proposed Higher Education Commission of India (HECI) will replace the UGC. Usually, a law is repealed only when it becomes obsolete, irrelevant, ineffective, or proves patently unjust. If it is a “repeal with replacement”, then a new law comes in its place, designed to address the deficiencies of the repealed one. The HECI Bill is explicitly and evidently a “repeal with replacement”. The question now is: What were/are the deficiencies in either the UGC Act or the institution itself, that provoked this drastic measure of repeal, and replacement by new legislation?
The “Preamble” to the proposed HECI Bill notes that, “there is a need for creation of a Body that lays down uniform standards, and ensures maintenance of the same through systematic monitoring and promotion”, in order to promote “uniform development of quality of education in higher educational institutions” (2018: 1). It is to address this putative “need”, the “Preamble” implies, that the “Body” called HECI is being proposed.
Troublingly though, the draft Bill does not acknowledge the UGC as one such “Body” that has been performing these very tasks for decades; nor does it attempt to identify any possible failures by the UGC to deliver on its mandate, of a magnitude that would require its repeal — or of any magnitude, for that matter. As we shall see shortly, the perceived deficiency of the UGC Act was of a kind that could not be pointed out, for strong political reasons; nor could it be dealt with by amending the existing law, because an amendment would require making the problem explicit, and that returns us to the evasive silence around it.
Interestingly, the new legislation has no specified “mandate”. In fact, it actually employs this word only twice, itself, both times in the “Preamble”. The first instance is:
“Whereas the Constitution of India mandates Central Government to take steps for co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.”
And the second, barely a short paragraph later:
“Whereas the existing regulatory structure as reflected by the mandate given to University Grants Commission required redefinition based on the changing priorities of higher education and allow its growth” (2018: 1; both emphases added).
The first of these is unremarkable, in that it just refers to a general Constitutional mandate that any new Act has to have anyway, to legislate on education. The second use, however, is more significant. It refers to an “existing regulatory structure”, as “reflected” in the UGC “mandate” cited above; but even a cursory glance at the bullet-points of the “mandate” is enough to see that they make no reference to a “regulatory structure”. In fact, the word “regulatory” is not used anywhere in the UGC Act; nor is the word “regulate”; nor even its closest synonym, “monitor”.
This does not mean that a body like the UGC would not have a discernible “regulatory structure” and functions, in practice. In fact, both of these are clearly writ large, in the extensive and detailed provisions empowering the UGC to create and enforce rules and regulations, regarding recognition, affiliation, claims, etc., for institutions funded by it. The draft HECI Bill glosses over these extensive powers, amounting to tens of pages of rules and regulations in the modified UGC Act, with just the cryptic observation that they “required redefinition based on the changing priorities of higher education”.
UGC | Photo Source: The Indian Express
Again, for strictly political reasons, there is nothing further in the draft to clarify what specific aspects of the UGC’s “regulatory structure” “required redefinition”. Neither is there any elaboration of the “changing priorities”, which are supposedly going to be the bases of the redefinition. But without this information, how can we assess whether or not there is indeed a “need” for this new Act, with its new Commission? And how do we assess whether the new draft legislation is designed well or not, whether its provisions will serve the “need” for it, or not? It is clear then, that our assessment of both the legislations depends on information that the draft Act makes conspicuously unavailable, except for vague references to “redefining” the UGC’s putative “regulatory structure”.
From regulation to divestment of regulation
However, this in itself is a clue: the proposed Bill’s only stated concern is with the “regulatory structure”. This phrase, and the structures it refers to, are evidently important to the proposed Bill: the word “regulatory” is explicitly reiterated four times in the fourteen pages of the proposed legislation. The first instance of usage is of course in the “Preamble”; the second is in a stipulation that, amongst the twelve members of the Commission, there must be “Two Chairpersons of other Regulatory Bodies of Education” (HECI, 2). These two are not of much consequence to this discussion, beyond signalling a general concern with the Commission’s regulatory function. The third and fourth, however, specify more directly the kind of regulatory role that is being emphasised.
The first of these, or the third use, is in item no. 4 (d), in the section “Functions of the Commission”, which reads, “[to] Specify norms and standards for Graded Autonomy to Universities and Higher Educational Institutions and accordingly prescribe regulatory mechanisms” (HECI, 7); and the last is in item no. 4 (m) of the same section, and reads, “[to] Enable universities to become self-regulatory bodies for the maintenance of academic quality in higher education and research and in colleges affiliated to it [sic]” (HECI, 8).
Both points make it amply clear that the proposed HECI will not itself function as a regulatory body, but will only “prescribe regulatory mechanisms”, and thereby “enable universities to become self-regulatory”. Here now, we can begin to discern the provocation for the new legislation, as well as for the silence around the provocation itself. Contrary to expectations, the proposed legislation’s explicit and repeated emphasis on a “redefined” “regulatory structure”, is not about assuming greater regulatory power than the UGC Act, but about divesting itself of this regulatory power. HECI focuses instead on facilitating the transfer of this power onto the higher education institutions (HEIs) themselves, under its jurisdiction.
This understanding is borne out by the details about the divestment of regulatory power, provided in Section 15, “Functions of the Commission”, especially in Subsections (4) c) [“Lay down standards for grant of autonomy for institutions and provide flexibility and freedom to institutions granted autonomy to develop their own curriculum”]; (4) d) (“Specify norms and standards for Graded Autonomy to Universities and Higher Educational Institutions and accordingly prescribe regulatory mechanisms” [emphasis added]); and (4) m) (“Enable universities to become self-regulatory bodies for the maintenance of academic quality in higher education and research and in colleges affiliated to it”).
Criminalisation of non-compliance
Nevertheless, some crucial regulatory powers are retained: for instance, Sections 16 through 20 go into great detail about the proposed Commission’s power to “grant authorisation” to HEIs, without which they cannot operate (Section 16 (1)); as well as to withdraw it (Section 20). A particularly telling point in this regard is the fixed period for which such authorisation will be granted (“for a period of three years from the date of notification of this Act”); and the said authorisation will remain in force conditional to periodic validations of the HEI’s performance. Where the UGC had relied on controlling fund-flows to the HEIs, to ensure their compliance to its regulations, the proposed Bill threatens nothing short of full withdrawal of authorisation.
The real shocker in this context though, is the criminalisation of non-compliance with the HECI. Section 23 (2) says:
“The Chief Executive and other members of Management of such institution who do not comply with the penalty imposed by the Commission shall be liable for prosecution as per procedure laid under the Criminal Procedure Code and may be punished with imprisonment for a term which may extend up to three years.” (p.11)
Compare this with the penalties of the UGC, and that too, only for one specific illegality, covered by Sections 22 and 23, which deal with fraudulent educational enterprises:
“Whoever contravenes the provisions of section 22 or section 23 shall be punishable with fine which may extend to one thousand rupees, and if the person contravening is an association or other body of individuals, every member of such association or other body who knowingly or wilfully authorises or permits the contravention shall be punishable with fine which may extend to one thousand rupees.” (UGC, 2002: 18)
The UGC’s position was to directly penalise the offender, but with no more than a fine, and that too only for fraudulent educational practices. The HECI position is to take exemplary criminal action against “The Chief Executive and other members of Management” of the guilty institution – regardless of whether or not they are themselves the law-breakers. Strictly speaking, criminal prosecution in this instance, is attracted for non-compliance “with the penalty imposed by the Commission” on an institution, which in turn, would have been imposed for non-compliance with its rules and regulations. The penalties referred to here “may include fine, or withdrawal of power to grant degrees/diplomas or direction to cease operations”. (p.11)
There are two serious problems with this: one, its constitutionality will almost certainly be challenged, on the grounds that all three penalties would fall in the domain of civil matters, and therefore not attract the provisions of the CrPC. If this understanding is correct, then the HECI – with no other provisions to discipline errant institutions – will be like a class-teacher who’s been tied up and gagged, in a classroom full of delinquents.
Turning education into market for profit-mongering
Let’s put this in context, to understand it better: according to one trade estimate, “the overall market for higher education is projected to be worth USD 115 billion in the next 10 years”. The private sector is expected to invest well over Rs 50,000 crores per year, but with a market of that size, the returns are expected to be in the range of Rs 70,000 crores per year, marking a profit of Rs 20,000 crores per year. This is the bounty waiting to be tapped by the large number of private players (both Indian and foreign) waiting to enter the HE sector in India. Now, imagine this bounty being opened out with no real regulatory power left with the government to intervene in it or control it in any way. By the time the smoke clears and new, more realistic and enforceable Acts are brought in, incalculable damage would have been done to the HE sector, as well as to millions of hapless students and parents.
Conversely, if the constitutionality of this punitive action is upheld, it is worse. Recall that, other than criminal prosecution, the only regulatory power the HECI has, is the power to withdraw the authorisation granted to the institution. Given the extreme nature of both the punishments here, violations by HEIs are unlikely to attract convictions evenly, likely leading to a growth in such violations by powerful HEIs (confident that no action will be initiated against them), rather than a reduction; and a growth in penalisation of HEIs that may, for whatever reason, fall out of favour with the HECI. Further, if we take into account the high socio-statistical probability that “The Chief Executive and other members of Management” of a HEI are likely to be from wealthy and influential, usually Hindu upper-caste, social contexts, it will become obvious that extreme penal action – perhaps even any penal action – is likely to make matters worse, rather than better.
Illustratively, consider an institution that fails to apply the principle of reservations in admission, and/or admits “general category” students against “reserved” seats. Let’s say the HECI takes note of this, orders the institution to declare those admissions invalid, and to apply the quota system properly. The institution ignores the order. Let’s say then, that an affected student files a complaint with the police, who duly notify the HECI, as the institution’s admission policies, as well as the penalties for violating them, are covered by the rules for admission set by the HECI. At this point, the HECI must decide whether to withdraw its authorisation to the institution; or initiate criminal proceedings against its “Chief Executive and other members of Management”.
There is little realistic chance that the HECI will move for withdrawal of its authorisation, and adversely affect the lives of all the other students in the institution. If it initiates criminal proceedings against the “Chief Executive and other members of Management”, as per its own provisions, the chances of getting a conviction will depend, to a large extent, if not entirely, on being able to meet the evidential requirements of the Criminal Procedure Code — which would be near impossible, since the “Chief Executive and other members of Management” do not actually conduct the admissions.
Contrarily, the proposed HECI may also choose to exercise its draconian powers over institutions that have run foul of it for some reason — for example, in perhaps denying admission to someone, despite being told to do so by the HECI. In short, this is recipe for arbitrary disciplinary action, with no checks and balances built in to prevent misuse.
It will take just one case to pan out like this, for the entire edifice of reservations in Higher Education to come crashing down.
An ungainly weight-loss
At this point, it is already clear that the two Commissions are almost diametrically opposite, in terms of their conceptions of their respective roles in HE in India. Where the existing UGC is a funding and regulatory body with extensive powers of intervention, the proposed HECI apparently will neither fund HEIs nor seek to regulate them directly (except to grant or withdraw authorisation). So, what then is its conception of HE, and of its role in HE? What is its brief, its raison d’etre?
Why, in other words, is the HECI being proposed at all?
One of the biggest drawbacks of the draft is its baffling silence on these fundamental questions. Apart from the terse lines quoted above from the “Preamble”, there is nothing in this draft Bill to clarify its vision for HE, its objectives or its mandate. It pays much attention (almost five full pages) to the details of its internal organisational structure (pp. 2-6); another almost-three pages (pp. 8-10) to detailing its power to grant or withdraw “authorisation”, viz., the only real regulatory power it retains; and three pages (pp. 12-14) devoted to this body’s relations to the Central Government, and the powers devolving to it from those relations. Of the remaining three-odd pages of this 14-page document, one – the first page – carries the Preamble, definitions and other introductory details; and one which deals with the arrangement of its internal finances (p. 11); leaving just about two pages (pp. 6-8) to detail its role and functions.
These may be summarised as follows: to “specify learning outcomes”; set pedagogic standards; design accreditation systems; assess institutional performance; promote research by coordinating government funding for it; provide institutional mentoring and guidance to meet its standards; advise the government on HE; and “prescribe proactive public discourse” on HE (pp. 6-7). If we compare this to the chapter-length exposition of the “Powers and Functions of the Commission (Chapter III)”, in the UGC Act, the weight-loss– so to speak – of the HECI is astounding – and not just in quantitative terms. Even qualitatively, we can see that the HECI’s role is now confined almost entirely to prescription, recommendation, evaluation, and consultation, with no realistically usable powers to enforce its say.
The government has referred to this as “Downsizing the scope of the Regulator”, in keeping with its newfound enthusiasm for the principle of “Less Government and more Governance” (PIB, 2018). But this is not just a substantially trimmed down version of the UGC, as these slogans seem to imply; this is the equivalent of a “demonetisation”-type gambit, seeking a radical, far-reaching transformation of the HE sector – and never mind if it is also a profoundly destructive one. It is nothing short of a “surgical strike” (to use the Prime Minister’s words) undertaken on behalf of big corporate interests, at the very conception of HE in India.
Questions of ‘Autonomy’
That said, there remains one other function listed here, a crucial one, which stands out for the attention with which it is elaborated: this is the issue of “autonomy”. Section 15 (“Functions of the Commission”) of the draft Bill: No. 15 (2) states that
“The Commission shall…take measures to promote the autonomy of higher educational institutions for the free pursuit of knowledge, innovation, incubation and entrepreneurship, and for facilitating access, inclusion and opportunities to all, and providing for comprehensive and holistic growth of higher education and research in a competitive global environment.” (p. 6; emphases added)
Points c), d) and m) of Sections 15 (4), dilate further on how “autonomy”can be promoted through this draft Bill. A point of some significance is that the words “facilitating”, “access”, “inclusion” and “opportunities”, are not even mentioned in the UGC Act, whether as individual words, or together as a phrase – not because the said Act did not focus on promoting and providing these, but because it did not need to do so: arguably, the Act in its entirety is about “facilitating access, inclusion and opportunities to all”.
The specific articulation of these words in the HECI Act, and that too in relation to its function of promoting autonomy, is deeply disingenuous, if not duplicitous. Perhaps it is a sign of the dramatically changed times that when the UGC Act was drafted, these words, this phrase, were not just slogans and sound-bytes, but objectives to work towards, so deeply implicit in the developmental agenda that they did not require mention. It is a tragic paradox of the developmental discourse that, as it fades away under the onslaught of privatisation-liberalisation-globalisation, its keywords have not only been appropriated by the latter, but are flashed around, like so many red-herrings, to hide their actual absence in policies.
The HECI draft is no different: its deployment of this phrase is at that precise point in the articulation of its functions, where the absence of “access, inclusion and opportunities to all” would be most strikingly observed. There is no real explanation here, as to why the HECI is mandated to promote “autonomy”, partly because there is no clarification anywhere in the draft about what constitutes “autonomy”. The passage quoted above is the only attempt to explicate what is understood by “autonomy” — and this too, is little more than a series of general platitudes, like “the free pursuit of knowledge”, etc.(In fact, it would not be unfair to say that this document relies more on cliches and platitudes, than on hard evidence or persuasive arguments, to make its case.)
It is true that the pursuit and granting of “autonomy” are hardly mentioned in the UGC Act; and perhaps — as with several other glaring problems with the structure, function, procedures and policies of the UGC — the question of “autonomy” too should have been addressed through public debate and discussion, culminating in appropriate amendments to the existing Act, if necessary. The fact that this was not the chosen road, suggests that the existing UGC Act was not considered hospitable to the particular conception of “autonomy” being sought to be introduced. Hence, the perceived need to bring in this mysterious form of “autonomy”, as a policy, through legislation that will replace the inhospitable UGC Act.
The idea of academic institutional “autonomy” is not new to the HECI Act; it has been celebrated as an ideal for academic institutions from the time of the Radhakrishnan Commission Report of 1962 (the first major report on HE in independent India), but was never linked to financial autonomy. On the contrary, as the Radhakrishnan Report notes: “[W]e have indicated the desirability of the autonomy of university administration. Government should assist with funds and should provide general discipline and oversight, as through the University Grants Commission. Otherwise freedom of action and local initiative should be respected.” (1962: 181)
When we see therefore that a major part of the “functions” of the HECI Act is the promotion of “autonomy”; but that, at the same time, through the very same legislation, the body that will promote “autonomy” will also cease to fund HE; we have to connect the dots. The draft does not actually declare its withdrawal from funding; in fact, apart from mentioning at one point (Section 15 (3) (d)), that it will ‘Promote research in HEIs and coordinate with Government for provision of adequate funding for research’, it is silent on the entire question of financing HE; needless to say then, unlike the UGC Act, it makes no provision for the same. This brings us back to one of the issues we had opened with, viz., the dropping of the word “Grants” from the title of the proposed Bill.
Why drop ‘Grants’? Who will fund HEIs?
In an interviewin The Indian Express dated July 4, 2018, R Subrahmanyam, Higher Education Secretary in the MHRD, is reported to have said:
“When funding and regulation are done by the same entity, it leads to conflict of interest. It also takes the focus away from regulation, because when you disburse grants, you have to monitor its utilization, retrieve unspent funds and initiate inquiry in case of misappropriation….This leaves little time to look at academic matters.”
one of the big fears expressed repeatedly in recent public discussions around this proposal, is that HEIs will have to be seek funds from the MHRD, which will use its financial clout to gain political and ideological control over teaching and research. In response to this, Subrahmanyam reportedly goes on to say:
“Whether the grant-giving function will be taken over by the ministry or not is a matter of detail. It’s possible the ministry may do it or assign it to another entity. But one thing is clear that the funding function will be carried out in a transparent manner, through an online process that has least human interference. So the fear that the ministry is taking over and that (this is aimed at) politicisation (of higher education) is completely rubbish.”
The Secretary’s protestations of transparency are somewhat clouded, so to speak, by the fact that he himself appears (deliberately or otherwise) to have no clue about the future of Higher Education funding. But he may indeed have a point when he indicates that takeover of HE financing by the ministry is not on the cards — simply because it runs against the grain of the larger agenda, which is to push HE, and then probably the entire education sector, into private hands. I have discussed this agenda, and the directions and methods of its operationalisation, in some detail elsewhere.
‘Deemed universities’ to leave teachers in a lurch
Suffice it here to point out that this draft HECI Bill is the first concrete step towards making education a matter of affordability: those who can pay, will buy it; those who can somehow wangle aid, will do what it takes to get it; and the rest will slide into literate ignorance. Literacy programs will no doubt continue with full governmental support, because it is in the interests of everyone to have a literate populace – but not everyone necessarily wants an educated populace. Needless to say, the cost of education will be decided by market demand, and will have severe implications for the kind of courses that will be offered or research conducted. However, as if this was not bad enough, there is another very serious issue that I would like to touch on here before (finally!) concluding this critique.
Nowhere in the draft proposal is there any mention of teachers’ service conditions, salaries, benefits, etc. This is deeply alarming, not just because it reflects through this very silence, the complete lack of interest or concern for the teaching community, on the part of the government; but because, if the financial arrangements relinquished by this draft Bill are not put in place before it is passed, it is not clear who will bear that burden after its passage. It is true that, as per point (7) (d) of Clause 31, pertaining to “Repeal and Savings”, of this proposed Bill, after repeal of the UGC Act, “all rights and liabilities of the University Grants Commission shall be transferred to, and be the rights and liabilities of, the [new] Commission”.
One assumes that this includes the liability of meeting the wages of all UGC funded university and college staff, everywhere. However, this is also to assume that these universities and colleges will remain in status quoafter the passage of the new Bill. What if that is not the case? What if some of the managements of these universities and colleges have already been apprised of the provisions of the draft Bill, move for autonomy immediately after its passage, and then initiate a bloodletting to get rid of all staff they consider a nuisance or hindrance?
This writer’s college (Hindu College, University of Delhi) is one such likely institution. Its management has been in communication with no less a forum than the Prime Minister’s Office, pushing for a change of status from “college” to “Deemed to be University”. A12-page document, dated August 2016, and obtained under RTI by the Hindu College Staff Association a few days ago, purports to be a proposal for the Chairman of the Hindu College Governing Body, to the Prime Minister’s Office (PMO), pleading for the grant of “Deemed to be University” status to the College, through an Executive Order from the PMO. This was apparently legally not viable, because Hindu College is a constituent College of Delhi University, and till the Delhi University Act is amended, cannot be disaffiliated.
However, Clause 26 of the current proposed HECI Bill makes this immediately and imminently possible:
“26. Act to have overriding effect:
The provisions of this Act shall have overriding effect notwithstanding anything inconsistent there with contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.” (original emphasis)
In other words, the provisions of the Delhi University Act will no longer apply, and the college can immediately be granted the status it seeks. One of the reasons for seeking this is that, according to the Chairman’s proposal, is the rank indiscipline amongst the staff. This bodes ill for us, especially because, once the college is disaffiliated from Delhi University, its staff can no longer remain members of the Delhi University Teachers’ Association, nor claim its protection. And if Hindu College leads the way in destroying its staff, it will not be long before the teaching community across the country will have to face the same music.
I will close with a small comparison. The UGC belongs to that class of statutory bodies whose mandate is to ensure that state policies and resources actually reach the people in a structured, systemic, institutionalised way, regardless of whichever party is currently in power; as well as to insulate the people from the vagaries and whims of the political elite. The Public Distribution System too was one such body.