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December 25, 2017

HIGHER EDUCATION SECTOR IN INDIA: BIRD’S-EYE VIEW


- Saurya Bhattacharya, Partner [ Cyril Amarchand Mangaldas ]

Saurya Bhattacharya

In a continuation, the series looks at key regulators that grant access and continuity to higher education institutions in India

Background


We have, in an earlier edition, looked at some noteworthy considerations when one is interested in establishing a K-21 school. In the current piece, we speak about the key regulators who grant access and continuity to the higher education institutions in the country. But owing to a series of significant developments in the legal regime in the sector, we also look into the consequent changes that are coming about.

Setting up an Institution of Higher Education


Higher education in the Indian context implies the stages of education that a candidate/student would undergo after successfully completing his K-12 education, i.e., school. Depending on the stream and level of education, there is a multitude of regulators that could have jurisdiction over an educational institution. The key regulators, however, continue to be the University Grants Commission (“UGC”) and the All India Council for Technical Education (“AICTE”). There are other regulators as well for specialized education, like the Bar Council of India and the Medical Council of India.

For the purposes of this article, we will exclude institutes of vocational training. Although the AICTE has a role to play in this as well, vocational training is substantially governed by a separate regulator, being the National Council on Vocational Training.

As a bird’s-eye view, compared to the K-12 education sector, the higher education sector could either be considered to be in greater flux or in a state of evolution

The AICTE


The AICTE (established under the AICTE Act of 1987) is in charge of recognition and standards in technical institutions, i.e., an institution set up by the government, government aided and self-financing trust/society/company, for conducting courses/programs in the field of technical education, training and research in engineering, technology, MCA, architecture, town planning, management, pharmacy, hotel management and catering technology, applied arts and crafts, and such other programs as may be notified in terms of the parent legislation.

For this exercise, the AICTE follows the criteria set out in its Approval Process Handbook, which contains detailed conditions to be satisfied. The expected conditions that the institution has to be set up through a trust, society or not-for-profit company and should not have a profit-motive are writ large in the relevant AICTE regulations, including the comparatively recent AICTE (Grant of Approvals for Technical Institutions) Regulations, 2016. The Approval Process Handbook itself envisages a single window application process and prescribes detailed criteria on the process from making an application, inspection, approval, change of location, closure of an institution, etc. The norms prescribed by the AICTE are wide ranging and include those for entry level and duration of courses; land requirement and utilization allocation; faculty cadre and qualifications, and the like. It also deals with not just the aforementioned areas but also extension of approval and change in affiliation of board or university and the courses that can be offered (which include not just diplomas but also degrees and post-graduate degrees).

The UGC


The UGC was set up under the UGC Act, 1956(“Act”). Its mandate includes framing regulations for minimum standards of educationandal somonitoring developments in the field of collegiate and university education. The UGC, too, has wide ranging regulatory oversight for any “university”. A university in terms of the Act means one that has been established by a central, provincial or state legislation, and includes any such institutions as may be recognized by the UGC in consultation with the relevant university, in accordance with regulations enacted under the Act. A university has variants as well, including private universities and deemed universities. The regulatory overview of the UGC inter alia addresses matters of establishment and maintenance of institutions; minimum standards of instructions for grant of degrees; admission to specified programs; and qualifications of teaching staff and other posts. It too underpins the not-for-profit nature of the entity university, prescribing that it should be run through a society, trust or not-for-profit company.

Under the Act, the UGC is the sole body authorized to grant university status to an institution. Further, a university can alone grant degrees.

UGC and/or AICTE?


A reasonable question arises: who regulates a university which provides technical education at the end of which it would provide a degree to the successful candidate/student? This is a recognized regulatory grey area, as there is a case to be made for adherence of standards of UGC as well as AICTE. Each of these regulators have regulations that would govern the institution as well as the course being conducted. The overlap has often been criticized by legislators and stakeholders in higher education, not the least because all regulations from these two regulators are not congruent.

Sectoral Crests and Troughs


The higher education landscape in India has seen twists and turns over recent times, some positive and some debatable. This, with the positive assumption made earlier: that at present both the UGC and the AICTE should be considered the foremost regulators in the higher education sector. Given this background, please note the following:

  • Convergence: Pursuant to the suggestion of the National Knowledge Commission, earlier this year, the Ministry of Human Resource Development with the aid of the NitiAyog started working on a proposal of replacing the UGC and AICTE with a single apex regulator to remove the ambiguity and confusion surrounding applicability and implementation of their regulations on various institutions. The prospective body was tentatively named Higher Education Empowerment Regulation Agency. A single nodal regulator with a comprehensive set of guidelines for various categories of institutions should always be a welcome move. It is however being seen as a transition that will take time because of the labrynthian roots the current system has developed over decades.
  • Online Education: This year also saw the UGC undertake a significant departure from earlier positions with respect to online education being allowed for grant of degrees. Earlier in the year, the draft UGC (Online Education) Regulations, 2017 were opened up for public comments. At the same time, the UGC (Open and Distance Learning) Regulations, 2017 got notified. These regulations provide for open educational resources (OERs) and massive open online courses (MOOCs), and lay down the minimum standards of instruction for grant of degrees at the undergraduate and post-graduate levels through open and distance learning mode.

    Both of the above remove stiff entry bar riers to more providers of higher education, where the importance of access to good education in a country like India can never be over-emphasized. They also offset the bad taste in the mouth that some developments left; for instance:
  • the UCG (Institutions Deemed to be Universities) Regulations, 2010 having to be replaced by the UGC (Institutions Deemed to be Universities) Regulations, 2016 due to inadequacies of the former; and
  • the Supreme Court only weeks back (in Orissa Lift Irrigation v Rabi Sankar Patro) nullifying degrees on technical courses handed out between 2001 and 2005 by a few universities through distance learning. (Interestingly, one of the aspects that the apex court looked into was the applicability of AICTE regulations did apply to deemed universities.)

Takeaway


As a bird’s-eye view, compared to the K-12 education sector, the higher education sector could either be considered to be in greater flux or in a state of evolution. For those that are already established education providers, it is a good time to look at internal housekeeping. This will also make them more friendly destinations for interested partners or investors. In addition, degrees through online education being better governed is definitely a positive industry breakthrough, if implemented correctly. The topic of investment into higher education will be explored next time.

Disclaimer – The views expressed in this article are the personal views of the author and are purely informative in nature. They should not be considered as substitute for specific legal advice.




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