Multiplicity of higher education regulators is a concern for policy to address
With the Supreme Courts rejection,a few days ago,of the review petition filed by the All India Council for Technical Education (AICTE),the stage is set for an arduous tussle over jurisdiction between the AICTE and the University Grants Commission (UGC). In April this year,the SC had restricted the role of the AICTE in regulating technical education provided by colleges affiliated to universities. It also held that MBA courses did not come under technical education. While the judgment was hailed by many technical colleges,in government and bureaucratic circles,the curtailment of the AICTEs powers caused much anxiety. Consequently,the government sought a review of the SCs April order.
The judgment held that colleges affiliated to a university are not required to obtain permission from the AICTE before starting a course in technical education. The SC held that the role of the AICTE vis-a-vis universities and their affiliated colleges was supervisory and not regulatory. In reaching its conclusion,the court relied on the definition of technical institution under the AICTE Act,which excludes a university from the regulatory purview of the AICTE,and Section 12A of the UGC Act.
Section 12A allows the UGC to regulate the fee that may be charged for certain courses. Further,the UGC may recommend that the university disaffiliate a college found violating the regulations framed under Section 12A. This section defines a college as an institution of study recognised by a university as providing instruction in a course,the qualification of which is granted by the university. Arguably,this definition is aimed at distinguishing between a college and a university. But the SC subsumed the former into the latter.
The definition of a university under the AICTE Act is in line with the UGC Act. A reading of the definition of university with the definition of college under the UGC Act leaves no doubt that the two concepts were intended to be different. Any other reading renders the AICTE Act an otiose piece of legislation,as almost all technical institutions are also affiliated to universities (which alone have the power to grant degrees under the UGC Act). It appears that the Supreme Court was inclined to read the phrase university in a more expansive manner to bring colleges out of the regulatory control of multiple bodies the UGC,the AICTE and universities. Although this is a valid policy concern,it would have been best done through a legislative amendment.
The second and more perplexing conclusion concerns the pronouncement that MBA courses do not fall under technical education. The conclusion is surprising,given that the word management is expressly included in the definition of the phrase technical education under the AICTE Act. The SCs conclusion was based on the dictionary meaning of the word technology.
Why did the SC overlook the definition under the AICTE Act? The answer lies in the judgment itself. The petitioners were concerned with the interpretation of an MBA as technical education and had sought to exclude it from the purview of the AICTE. The judgment (as reported) does not contain any pleadings by either the petitioners counsels or the AICTEs counsel on the issue. In fact,this was not even an issue framed by the court. Should the court have pronounced on an issue that was not pleaded by either party? There are a number of precedents wherein the SC has held that a court should not suo moto decide any issue that has not been pleaded by the parties. Even if evidence is led on such an issue,the court should ignore the same. Clearly,the SCs attempt at interpreting an issue not argued before it has resulted in a hasty and incorrect conclusion.
The judgment has profound,and perhaps unintended,ramifications. Based on the SC order,the Delhi High Court quashed the show cause notices issued by the AICTE against the Indian Institute of Planning and Management in relation to its courses. This implies that all similarly placed institutes can get ongoing AICTE proceedings against them quashed. Will this help students and management education in India? It is unclear if the AICTE is merely an advisory council or if it will continue to exercise its powers over diploma-granting stand-alone institutions. And if an MBA is not technical education,then what is the status of institutions that offer MBA degrees without being affiliated to a university? Can the AICTE still conduct the common management entrance test? Given the SCs interpretation,can it be pleaded that fashion and interior design courses are not technical education either?
The multiplicity of regulatory agencies in higher education is a valid concern and perhaps the most important reform required in this space. But courts are usually not the best places to resolve such policy issues. The SC has often refused to enter into the domain of policymaking. In the present case,the court seems to have unintentionally ventured into this territory. It is almost certain that the SCs ruling will be rendered naught with an amendment to restore the status quo.
The writer is a Delhi-based lawyer firstname.lastname@example.org