Recently, Professor G. Haragopal, noted human rights activist and scholar, in the news for being on the Maoist-mediating team set up by the Centre to negotiate the release of Malkangiri Collector R. Vineel Krishna, was recounting his experiences at an afternoon lecture at the department of Political Science in Delhi University. As an aside, he surprised the audience by asking how many present there knew of nine “vital” Bills on higher education that were in the process of being introduced and passed in Parliament by the end of this year (A report in The Hindu dated September 13, 2010 had carried this news, in fact, from Professor Haragopal's address to Yogi Vemana University in Kadapa.)
Most of us, whom these Bills will most directly affect, had no real information about them at all, though they actually possess the potential to completely destabilise and overturn our university existence as we know it now. The deadliest of the Bills, perhaps, is the one that takes away the right for anyone in all systems of higher education to seek arbitration in regular courts of law in cases of complaint on campus, through the introduction of the Educational Tribunals Bill (No. 55 passed in the Lok Sabha in August 2010, and awaiting clearance from the Rajya Sabha in the next session of Parliament).
The proposed Bill seeks “to provide for the establishment of Educational Tribunals for effective and expeditious adjudication of disputes involving teachers and other employees of higher educational institutions and other stakeholders (including students, universities, institutions and statutory regulatory authorities) and to adjudicate penalties for indulging in unfair practices in higher education and for matters connected therewith or incidental thereto.” Structured along two tiers, of State Educational Tribunals (three members, appointed by the State government) with a National Educational Tribunal (comprising nine members appointed by the Central government) at its head, the higher body has complete authority to exercise power in matters of dispute, reference and affiliation between any higher education institution and any appropriate statutory regulatory body, and between units of institutions where one is a Central university, and exercise appellate jurisdiction over some clauses pertaining to State Educational Tribunals. Penalties for failure to comply with orders of the Tribunals range from imprisonment up to three years and a fine of Rs. 1 lakh, or both. Most important, any order made by the Tribunals under this Act shall be “executable as a decree of a civil court” and for this purpose they “shall have all the powers of the civil court.”
The very notion of a ‘tribunal' is rather amorphous — both etymologically and conceptually. The word ‘tribunal' is not conclusive of a body's function. Are tribunals judicial structures or can they serve as lawmaking and law-enforcing bodies at the same time? Or is their mandate more specific and temporary? Many governmental bodies that are titled ‘tribunals' are so described to emphasise the fact that they are not courts of normal jurisdiction. For example, the International Criminal Tribunal for Rwanda is specially constituted under international law; in Great Britain, Employment Tribunals are set up to hear specific employment disputes. Structurally, tribunals are more private judicial bodies though often mandated by the government.
Besides, are tribunals merely routes of appeal or can they provide regulatory supervision? Usually, the role of tribunals is inquisitorial, brought forth to look into urgent public disputes. Tribunals are obliged to report, not to administer justice. They have the power to enforce the attendance and examination of witnesses and the production of documents relevant to the work in hand, and not much beyond.
It may be true that a rapid growth in the higher education sector has resulted in increased litigation, but stemming malpractice or settling disputes among ‘stakeholders' is neither an extraordinary predicament nor irresolvable. Often institutions have their own set of systems or councils which take up issues case by case. Sometimes disputes are amicably settled. If matters are legal in nature or require structural changes, the law of the land takes it own course. What urgent reasons do we have to set up such tribunals within our education system?
At a fundamental level, one can interrogate the proposed structure and composition of the tribunals. The State level educational tribunals will have three members each. While its chairperson will be a judge of some High Court, a Vice-Chancellor and a person of the rank of a Chief Secretary of the State government will be the other members. At least one of them will be a woman. The nine-member national educational tribunal will include a chairperson and two other judicial members who will be the judges of the Supreme Court. Further, it will have three academic members (Vice-Chancellors) and three administrative members (Secretary to the Government of India or of equivalent rank). At least one-third of its total members will be women. The Bill seeks to accommodate retiring or retired personnel up to the age of 70. The majority of members may not be judicial or working; this takes away the kind of public accountability that serving personnel usually provide. More important, the cross-section of the personnel is heavily bureaucratic and top-down with scant clue about the specificities of the daily disputes and malpractices that occur in higher education spaces. In fact, it appears that the appointments will be hand-picked by the Central government.
The more alarming aspect of the proposed Educational Tribunals Bill is its total disregard for the due process of law. It seeks to bypass the whole judicial structure. The tribunal system will run parallel to the judiciary and will create an alternative vigilante system with tight governmental control over the higher education systems with no democratic or legal mandate. This is a way of creating a glass ceiling for resolving disputes, with litigants having no right to move courts outside of the tribunal system. The very constitutional right of citizens to move a court of law will be stymied by this bill. Far more than putting justice into the fast track, as claimed, it is neatly designed to help privatised players and bureaucrats so that they do not get into protracted judicial battles with litigants.
In fact, there is no constitutional validity for the new tribunal structure to come into being in the first place. The Constitution categorically prohibits Parliament from regulating higher education while empowering the States to do so. Parliament can, at best, coordinate and determine the standards of higher education but cannot regulate it. It is not even permitted to incorporate and wind up universities. Neither the Centre nor the States have been entrusted with the power to make tribunals or such ad-hoc bodies to deal with matters and disagreements in the highly complex, volatile space of higher education.
The Bill heavily assaults the federal nature of our higher educational system by creating a subtle hierarchy between the State and the Central jurisdiction of the proposed tribunals. It clearly states that if any State has an already existing tribunal system in practice, the Bill will have precedence over and override the existing legal structures and systems. The State education system will have little autonomy in matters of affiliation of an institution with the affiliating university and unfair practices by a higher educational institution, which have been prohibited by law; it is only in the service-matters of teachers and other employees of higher educational institutions that no appeal can be made beyond State tribunals. Although education is primarily a matter of the State and a concurrent concern, such a Bill appears to be part and parcel of a larger concerted move by our policymakers to shift the fulcrum of power towards the Centre.
But the unkindest cut of all is that the decision to subvert the judicial system and centralise education by slipping in a tribunal system will result in the so-called base level ‘stakeholders' — students and teachers — simply having no say in settling their own disputes. The participatory nature in important decision-making matters, say in syllabus formation, in deciding what constitutes an appropriate academic cycle, in staging protests on administrative matters, in deciding research agendas and collaborations — in all such disputes it is a top-down tribunal system that will have the final say; a system that is arbitrary, quick, ideological and unconstitutional.
Undoubtedly, expeditious growth now takes precedence over important everyday concerns within institutions of higher education. And that this Educational Tribunals Bill — seeking to do away with the possibility of seeking proper judicial redress in civil courts for any dispute in higher educational institutions — is now merely awaiting a smooth safe passage into becoming an Act without any sort of public consultation and debate should be a matter of the gravest concern to all of us, not just academics.
(Brinda Bose and Prasanta Chakravarty teach in the Department of English, University of Delhi.>brindabose@gmail.com , >mrsceptic@gmail.com )
