The Ministry of Human Resource Development (“MHRD”) has initiated a number of reforms in the education sector, more particularly in the field of higher education. The Higher Education and Research Bill, 2010 (“HER Bill”) is one of the most important initiatives of the MHRD to regularize and streamline the existing regulatory regime in the higher education sector.

One of the most salient features of the Bill is that pursuant to its enactment, it shall put an end to the over-lapping powers of the University Grants Commission (“UGC”) and the All India Council for Technical Education (“AICTE”). Consequently, all doubts in relation to the authority regulating a university have been adequately addressed under the HER Bill. The National Commission of Higher Education and Research (“NCHER”) shall unify and subsume the powers of all these regulatory bodies and function as a single, all-encompassing higher education regulatory authority.

However, the HER Bill in its present form raises few concerns for the private players and the industry and therefore require immediate attention of the policy makers.

LACUNAE / PROVISIONS WHICH NEED TO BE RE-LOOKED

Treatment Meted to Private Universities under the HER Bill:

The HER Bill does not provide a separate definition for ‘private universities’. As private universities are privately funded, receiving no grant from the Government, it is important that such private universities are not clubbed with other central and state universities which are funded by the Government. It is necessary that the HER Bill treats private universities as a separate category of institutions and due care is taken to ensure that all regulations governing central/state run universities are not made applicable to private universities.

Under the extant regime, private universities are established under the various state private university enactments. In addition to the statutory requirements prescribed under the relevant state private university enactments, the private universities are also required to adhere to the minimum standards stipulated by the UGC and AICTE. Under the HER Bill, all universities (including private universities) are required to take prior approval of the NCHER before the commencement of its academic operations and are required to be in compliance with its proposed regulations for commencement of academic operations. It is imperative that these regulations are published alongside with the enactment of the HER Bill so that the parties interested in establishing private universities are well aware of and are in abidance with the eligibility norms before approaching NCHER for authorization. This is to avoid situations where institutions that have adhered to the minimum criteria laid down in the state private university enactments are not granted authorization by the NCHER for falling short of the standards prescribed under the HER Bill. Also, it will create a lot of confusion if the proposed regulations are not in consonance with the existing minimum eligibility norms prescribed by the UGC/ AICTE or the relevant state private university enactment.

As on date, private institutions are not permitted to be established as ‘universities’ under the Central Government, however, ‘deemed to be university’ status may be granted by the Central Government to institutions having 15 years of experience. Therefore, private parties interested in establishing a private higher educational institution can do so only in states having a private university enactment in place or else they have to run for 15 years as an educational institution (without the status of a university) before being eligible to apply to the Central Government for a ‘deemed university’ status. Keeping in mind that the preamble of the HER Bill provides for promotion of higher education institutions, it is imperative that the Government considers a mechanism to provide for the establishment of private educational institutions directly under it. Further, the HER Bill does not throw any light on the fate of the pending application of institutions seeking a ‘deemed institution’ status. Also, there is a lack of clarity on the status of de-novo institutions. As on date the government has not granted the ‘de-novo’ status to any institution.

Accreditation to happen only after running of an Institution for a few years:

Accreditation, as on date, is a voluntary process while the HER Bill aims at making accreditation a mandatory process. As per Clause 33(2) of the HER Bill, at the time of seeking authorization from the NCHER, all universities are required to submit report from an ‘accreditation agency’ which has been defined under the HER Bill as an agency registered under the National Accreditation for Higher Educational Institutions Act, 2010. Mandatory accreditation is a welcome change in relation to institutions and universities which have been in existence for years without any accreditation so as to ensure quality education to the students. However, making accreditation mandatory at the nascent stage of establishment of a university will not be of much use as true assessment of quality of an institution and its programmes is only possible when an institution has functioned for a considerable period of time. For example, Section 40 of the Haryana Private Universities Act, 2006 states that every university is required to obtain accreditation from National Assessment and Accreditation Council (“NAAC”) within 3 years of its establishment and to inform the concerned state government and other regulatory bodies (UGC, AICTE etc.) about the grade provided by NAAC to such university. Further, NAAC and the National Board of Accreditation (“NBA”) are the only two reputed accrediting agencies in our country. Keeping in mind the limited resources of NAAC and NBA, it is highly unlikely and nearly impossible that all such institutions will get timely accredited by them. Additionally, in relation to private universities, it may be noted that the state private university enactments already provide for mandatory accreditation for private universities within 3 years of its establishment. Therefore, it is advisable that the HER Bill is revised to provide for a minimum time-span to universities to obtain accreditation and accreditation should not be made a condition precedent to the grant of authorization by the NCHER to the universities.

Information to be disclosed by Private Universities:

Under the various state private university enactments, private universities are required to disclose certain information/ details to the state government before the letter of intent is granted to the sponsoring body of the university. Such information may be accessed by the general public under the Right to Information Act, 2005 (“RTI Act”). The private universities may be mandated to declare on their website certain details about their infrastructure, course content, programme etc. or such other details which may help a student in taking an informed decision as to whether he/she intends to apply/ pursue a course in the said institution. The HER Bill may issue guidelines mandating the disclosure of such information by private institutions/universities. Confidential information pertaining to the funding mechanism of universities, private contracts/ arrangements entered by universities, etc. which do not concern the prospective students of the university may be kept outside the purview of such disclosures.

Conclusion

The MHRD proposes to revise the HER Bill further based on the comments from the various state governments. The HER Bill in its present form does have certain concerns for the private players and the industry, however, one cannot negate the fact that the HER Bill may bring about the much needed paradigm shift in the regulation of higher education in this country.

Inder Mohan Singh is a Partner at Amarchand Mangaldas and specialises in M & A, Joint Ventures, Private Equity and real estate. Sadia Khan is an Associate with Amarchand.

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