Higher Education and Research bill: Implications on Legal Education
The Higher Education and Research Bill, 2011 aims to establish the National Commission for Higher Education and Research. The proposed commission states that “shall…take all such steps as it may think fit for the promotion and coordination of Higher Education and Research” and “make regulations to determine, coordinate and specify standards of higher education and research in India.
This Bill had created repercussions in the Legal Fraternity of the Country as the bill seeks to usurp the control of Legal Education framework by captivating away the control from the hands of BCI and being taken over by the HRD Ministry.
The Bar Council’s concern is, of course not the general sentiment towards higher education regulation that animates the Bill, but its intrusion into legal education. Legal education is currently the responsibility of the Bar Council as it protects legal education and regulates its standards. According to the council, the Bill takes away this power and goes against the Advocates Act. So the Bar Council is in opposition of the Bill.
The Ministry of Human Resource Development (HRD Ministry) which is headed by Kapil Sibal wants to bring Legal Education under the National Commission for Higher Education and Research (NCHER) as introduced by the HRD Ministry before Rajya Sabha on December 27, 2011.
Through the NCHER, the government aims to set up a super regulator, which would subsume existing regulatory bodies such as UGC, All India Council for Technical Education and National Council for Teachers Education to bring transparency in regulating higher education.
Higher Education and Research Bill and Bar Council of India
This Bill is constituted by the government on the recommendation of Yashpal Committee and National Knowledge Commission. On the first of February 2010, the Ministry of Human Resource Departments drafted the National Commission for Higher Education and Research Bill (NCHER) Bill, 2010.
In this Bill, it was presumed that abolishing the University Grants Commission (UGC), All India Council of Technical Education (AICTE) and National Council of Teacher Education (NCTE), and establishing an eight member commission, will lead to “renovation and rejuvenation” of higher education. It was also presumed that the selection committee, consisting of the Prime Minister, speaker of the Lok Sabha, the leader of the opposition in Lok Sabha and two ministers in charge of higher education and medical education, will chose seven members, most competent for “renovation and rejuvenation” of higher education, and these will be the best brains and the only brains to shape the future of higher education in India. It is further presumed that the ills of the UGC, AICTE and NCTE and prevalent corruption in these institutions would never infect the proposed NCHER.
The Bar Council of India, which has been opposing the Centre's proposed law for regulating legal education, has termed it as unconstitutional and a threat to the federal structure of the Constitution. In a joint meeting of the Chairman of the BCI and office bearers of all bar associations in Delhi, it was unanimously resolved by the apex body for lawyers that "there shall be no compromise on the independence of the legal profession and judiciary".
Ashok K Parija, the Chairman of BCI, said the provision for inclusion of legal education in the bill, which was introduced by Human Resource Development Minister Kapil Sibal, in the Rajya Sabha on December 29, last year, "usurps" the powers of the regulatory body for legal education. "BCI resolves to oppose tooth and nail this (inclusion of legal education) draconian and highly condemnable proposal contained in the bill,". He said that, it was left to the state councils to decide on the manner of protest adding that "though the feedback we (BCI) gets, is that the lawyers will abstain from attending the court". He also expressed displeasure and "anguish" over the manner in which the Bill was cleared by the cabinet saying that BCI being the regulatory body should have been consulted. Responding to a question on Law Ministry's role, Parija said, "We made several representations to the Law Ministry. Our administrative ministry (Ministry of law and Justice) should have consulted us before. For reasons good or bad, it did not happen".
The BCI has directed all the Bar Associations and State Bar Councils in the country to send copies of their resolutions against the Bill to the President of India, Prime Minister Manmohan Singh, Union Minister for Law and Justice Salman Khurshid, Union Minister for Corporate Affairs Veerappa Moily, Union Minister for Human Resource Development Kapil Sibal and others “to draw their attention to the malafide intention with which these draft Bills are sought to be introduced,” said secretary J R Sharma and chairman Manan Kumar Mishra of BCI.
According to the Advocates Act, 1961, BCI is liable to promote legal education and set standards of such education in consultation with universities, recognize universities whose degrees in law shall be qualified for enrolment as an advocate and visit & inspect universities. However, the HER Bill will curb all these activities of the bar councils.
"The BCI is of the view that the bill is an attempt to allow the entry of foreign institutions in the country. Studying law will then become impossible for poor students. The HRD ministry is bent on weakening the lawyers' bodies," said MC Bhuyan, secretary of the bar council of the all eight north-eastern states.
The council members claimed that the Higher Education and Research Bill, 2011, the National Accreditation Regulatory Authority for Higher Educational Institutions Bills, 2010, the Foreign Educational Institutions (Regulation of entry and operations) Bill, 2010 and National Law School Bills, 2011will only harm the autonomy of the BCI. The members also slammed the Union Human Resource Development Ministry for neglecting legal education and its reluctant approach in promoting and improving the legal education in the country.
"The Higher Education and Research bill seeks to abdicate the powers and functions of the bar councils and will destroy its autonomy from taking disciplinary action against erring advocates. We oppose the bill and demand the HRD ministry not to regulate any such bill in the country," said a member of BCI.
HRD Ministry sources said that this Bill will be delinked from the Unfair Practices in Technical Education Institutions, Medical Educational institutions and Universities Bill, 2010. The Educational Tribunal Bill was passed by Lok Sabha in 2010, but has been struck in the Rajya Sabha due to lack of consensus among political parties.
Sources said Unfair Practices Bill “will be amended so that adjudication of penalties is delinked from the Educational Tribunal Bill, 2010, and restored to civil courts”. “This Bill, introduced in Lok Sabha, specifies guidelines under which unfair practices such as charging capitation fees, demanding donations, questionable admission processes etc could be treated as civil or criminal offences,” said a HRD official.
The Association of Self-Financing Universities has, however, voiced objections to these bills along with three other Bills which are pending in Parliament, terming them as unconstitutional. It said the five new Bills proposed to regulate all universities and higher education institutions, which is “completely unconstitutional” in nature.
The association, which approached four former Chief Justices of India, quoted them as saying that Parliament does not have legislative competence to legislate in matters of universities. Thus, this in view of exclusion of universities in Entry 44 of List I-Union List and inclusion of universities in Entry 32 of List II-State List
In the end the author would like to conclude on the note that Higher Education and Research Bill, 2011 must not be in the field of Legal Education Field . The bill is against the interest of Lawyers fraternity and Law students of the country. Otherwise the bill would continue to face oppositions from the Lawyers of the country as it had faced in the recent past.
The Bills in question are The National Accreditation Regulatory Authority for Higher Educational Institutions Bill, 2010, Higher Education and Research Bill, 2011, and The National Commission for Human Resources for Health Bill, 2011. “The Central Government does not have the right to implement any of these bills which tries to govern universities as well. Universities are the matter of States as per the Constitution of India. The Bills would take away the power of the State.
# lawyers-to-protest" target="_blank"> http://barandbench.com/brief/2/1958/regulation-of-legal-education-law-ministry-v-hrd-ministry-bci-upset-lawyers-to-protest
# The Economics Times, May 8,2012 available at http://articles.economictimes.indiatimes.com/2012-05-08/news/31626759_1_legal-education-bci-bar-counil (Last Visited on October 20,2012 )
# The IBN live January 9,2012 - http://ibnlive.in.com/generalnewsfeed/news/bci-to-protest-against-higher-education-and-research-bill/948206.html
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