People's Democracy

Creating a Judicial System Suited to Private Sector

Vijender Sharma

THE Educational Tribunals Bill 2010 was introduced in parliament on May 3, 2010 to establish educational tribunals at the national and state levels for “effective and expeditious adjudication of disputes” in the higher education sector. The bill covers all kinds of disputes involving teachers, other employees of higher educational institutions and other stakeholders including students, universities and statutory regulatory authorities. It also provides penalties for indulging in unfair practices.

DETAILS OF

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. They should have at least 25 years of experience and should be of age not less than 55 years. They will hold office for a period of five years and can be reappointed, but cannot hold office after attaining the age of 70 years.

A state educational tribunal will exercise powers in relation to (a) service matters of teachers and other employees of higher educational institutions, (b) affiliation of an institution with the affiliating university, and (c) unfair practices by a higher educational institution, which have been prohibited by law. While an appeal can be made in the national level educational tribunal against some order of a state tribunal in relation to (b) and (c), the decision of the state level tribunal will be final in case of (a) and no appeal can be made against it.

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 chairperson may constitute a bench consisting of three members, with one member each from the three said categories. Bench members can be transferred from one bench to another. Their term, experience, reappointment and minimum and maximum age will be the same as are in case of the members of a state tribunal.

The national educational tribunal will exercise powers in relation to disputes between (a) a higher educational institution and an appropriate regulatory authority, (b) an affiliated institution and the affiliating central university having affiliating jurisdiction over two or more states, and (c) constituent units of a deemed-to-be university or a central educational institution located in two different states. It can also take up issues of the similar nature pending before two or more state level tribunals. It will also take up the service matters of teachers and other employees only in case of the (c) above. An appeal against the decision of the national level tribunal can be made only to the Supreme Court.

GRAVE INJUSTICE

TO STUDENTS

This bill thus seeks to accommodate the retiring or retired judges, vice chancellors and secretary level IAS officers up to the age of 70 years. It thus contravenes the judgements of the Supreme Court about the constitution of such tribunals in which majority of members should be judicial.

The state and national level tribunals will have the powers of a civil court and can punish anyone who fails to comply with any order made by them, with imprisonment for to three years or fine up to ten lakh rupees or both. The collector of the concerned area will execute the order. If the institution or the person against whom an order has been made fails to pay, then such amount will be recoverable from the institution or person as arrears of land revenue.

No court can take cognisance of any offence punishable under the chapter on penalties unless a complaint is made by an officer authorised by the either of the tribunals. No civil court will have jurisdiction to entertain any suit in respect of any matter falling under the purview of these tribunals.

The national educational tribunal will have administrative control over all the state level tribunals and will oversee their functioning. This amounts to centralising the whole mechanism.

The bill does not spell out the kinds of problems and disputes facing the students, on which either the national or a state level tribunal would adjudicate. The word ‘student’ appears only on the first page, after the title of the bill and in the first paragraph of the statement of objects and reasons. ‘Student’ is simply missing in the main body and provisions of the bill. There is no section in the bill in which the disputes between students and their institutions are mentioned. This being the case, a tribunal might well refuse to entertain such disputes.

This means an aggrieved student cannot go either of a tribunal or to a court of law. This bill is thus most authoritarian as far as students are concerned and does grave injustice to them.

NO WIDER

CONSULTATION

This bill was presented in Lok Sabha and passed without taking into account the series of objections made by the parliamentary standing committee on human resource development. In Rajya Sabha, where the UPA-2 does not have a majority, the minister had to withdraw this bill in view of the protests coming not only from the opposition but from his own party as well.

The parliamentary standing committee on human resource development (PSC-HRD) had rightly said that the bill was introduced without a wider consultation process involving all the state governments and union territories. The central institutions of higher education too were not consulted. The whole exercise thus seems to be a hurried affair. Also, the three-member state level tribunals would simply be unable to take up all the conceivable aspects of higher educational institutions. Further, there would be only one tribunal in a state, no matter whether it is a small or a big state.

That the majority of the membership of a tribunal is non-judicial, is totally contrary to a ruling of the Supreme Court. As the PSC-HRD said in its report, this is a legislation meant to accommodate the retired vice chancellors and top bureaucrats, which would lead to bureaucratisation of the adjudication process in the realm of higher education. Prescribing the minimum age limit to 55 years could lead to ineligibility of otherwise competent and younger people.

The term ‘unfair practice’ has nowhere been defined in the bill. The lack of a definition of the term ‘unfair practices’ will leave it open to interpretation by the tribunals and courts.

As students are the soul of an institution, their interests should be protected and taken care of. But this would be possible only by including the word ‘students’ in the substantive clauses.

NO APPEAL TO

A HIGHER COURT

In the name of “effective and expeditious adjudication of disputes,” this bill presents an alternative system in which the disputes between teachers or other employees and institutions of higher education would get stopped at the tribunal level. The aggrieved teachers and other employees would be thus denied their constitutional right to take recourse to a higher court.

Thus, the bill seeks to set up an alternative dispute redressal mechanism at the state and national levels by depriving all the concerned people of their constitutional right to move a court of law.

One of the statements of objects of this bill says that the expansion of higher education to effectively “compete with other countries” can be achieved only if the “regulatory regime and dispute-settlement process engender credibility and assurance.” That is why the bill proposes a two-tier “system through a fast track, speedy recourse to justice delivery.” However, the provisions of the bill do not match the objects of the bill. This bill, in fact, has been designed to keep the teachers, other employees and students away from courts of law. This is probably designed to provide the foreign educational institutions and private players an environment in which they do not have to bother much about litigation.

Under the new agenda of the government in the name of expanding higher education, there have thus come up a series of bills whose aim is to throw our higher education system into the hands of private players --- both local and foreign --- for the trade in and all-round privatisation and commercialisation of higher education. In order to protect our education from these predators, therefore, we have to force the government of India to desist from its moves. For that purpose, let all the stakeholders, viz. students, teachers, non-teaching employees and officers of schools, colleges and universities, youth, parents, people’s science movement, etc converge in Delhi on December 2, 2010, and make the rally called by the national forum in defence of education a grand success.