THE EDUCATIONAL TRIBUNALS BILL, 2010
{ Rajya Sabha Speech by Shri Bal Apteji (31.08.2010)}
MR. CHAIRMAN: Thank you. The allotted time for discussion on this Bill is two hours. I would request the hon. speakers to adhere to their party's time. Now, the first speaker is Shri Balavant Bal Apte.
SHRI BALAVANT alias BAL APTE (MAHARASHTRA ):
Sir, I must record my total disappointment at the attempts of educational reforms, which the hon. Minister has always promised, both, at the regulatory level as well as in matters of standard.
There were several committees, the latest being the National Knowledge Commission and the Yashpal Committee. They have made recommendations, anticipating the country's role in the 21st century, which talks about the knowledge society and our primacy in this century, in this field. Our youth, our talent and our knowledge, have proved their utility when they saved the Y2K transaction in 2000.Therefore, the challenge is of quality, quantity, expansion, inclusion and regulation. But the bigger challenges are: One, foreign universities and our attraction for them, and, therefore, our submission to the white skin complex; two, large-scale commercialization, where the entire system is being controlled by educational barons as in Maharashtra, we had sugar barons, we have, now, education barons; and, third, the corruption in education regulatory agencies, like, the MCI, the AICTE, and every other regulatory agency, which is empowered by the Supreme Court, without reason, to deal with everything, even overriding the universities.
SHRI BALAVANT ALIAS BAL APTE (CONTD.): Sir, these are the challenges, and what is the response? The response is, ghettoization of minority institutions by the last Bill -- Aligarh University
15 per cent. Numbers yes; but what about quality? There is no planning, there is no thinking about quality, and, without quality, talking about leadership in a knowledge society is something which is on their dream. The Knowledge Commission says, we should have 1500 universities and we should have 15 per cent gross enrolment ratio. Then, law, medicine, management, engineering, agriculture, intellectual rights; all are listed. What are we going to do with this?
We have no plans. We talk about finances also. I will not go into that at this stage. Everybody has suggested that there should be one regulator. The Bill is circulated somewhere. But without going into the regulatory mechanism first, the creation of tribunal is really putting the cart before the horse.
Sir, the present Educational Tribunals Bill is half-baked, is without any homework and without vision. A basic question is about the creation of tribunals. Sir, after the 42nd Amendment, our dubious attempt at constitutional reform during the Emergency when we brought Administrative Tribunals on the statute book in the Constitution, there is a passion of creating tribunals so that you will save the civil courts from litigation and litigation from civil courts. Butwe create tribunals and the civil courts are barred, which are worse. I will give only two-three examples. Sir, we have CAT; we have MAT; the Central Administrative Tribunal; the State Administrative Tribunals; then we have family courts; the consumer courts. All these are tribunals for speedy justice. All these are places where justice is almost never delivered. In a family court, the interim maintenance application is kept pending for three years; and family court is for the purposes of speedy remedy. This is the status of the tribunals which we are creating today, and, therefore, Justice Malimath who earlier had recommended tribunals for these educational institutions says that 'the efficacy of tribunals is doubtful; let us go to the civil court.'
SHRI BALAVANT ALIAS BAL APTE (contd.): Thus, the efficacy of establishment of these tribunals itself is a matter of doubt, is questionable and, therefore, why a tribunal is needed is a question which ought to be answered. The tribunals are recommended. The National Policy on Education, 1986, unfortunately, was a non-starter. That policy had recorded that the first National Policy on Education of 1968 was never implemented. They made that confession and now, after 25 years of the National Policy on Education of 1986, we can say the same thing that nothing under that policy had happened. When universalisation of primary education was recommended, the then Member of the Planning Commission had said that, for the next five years, we do not have even a pie for this purpose. Rs. 20,000 crores were recommended. Nothing happened. Thereafter, the Sarva Shiksha Abhiyan came and other programmes came. Then, the Law Commission, in its 123rd Report of 1988, recommended the establishment of educational tribunals. Twenty years ago, tribunals were recommended. After that, as they say, much water has flown down the Ganges , and every other river in this country! Sir, most of the States have tribunals for redressal of grievances, mainly of teachers. I would refer to the other things a little later. But now, we are making decisions and establishing tribunals on the basis of data which was used to make the earlier recommendations. We are referring to those recommendations as the foundation of our decision today and establishing tribunals, without any current data. That is something which is normally not done. Here, it is a legislation that has been rolled out only for the purpose of showing that they are doing something. In the earlier legislation, the
regulatory authority that I was waiting for did not come. I believe, it will not come any time soon because there are various vested interests and I do not know how the hon. Minister is going to contend with them. Those vested interests are very, very powerful. So, I do not know when that regulatory authority will come. But that is the first need and that we do not have. So, it is just peripheral. If the CPWD cannot repair the entire building, it just whitewashes it. So, this tribunal is in the nature of a whitewash; the building is as it is.
Sir, the Bill was sent to the Standing Committee. The Standing Committee examined it dispassionately and it gave a very scathing report. The Standing Committee recorded that this Bill had been brought without any homework, without any consultation; they do not have any data and it is based on outdated recommendations. Out of 35 States and Union Territories
did not respond. Now, we have that famous saying, “mounam sammati lakshanam”. So, if a State does not respond, then it is with it. That is how the Bill has been brought. There was no effort made to get a response from the very major States. Thirty States did not respond and they say that there were wide consultations! We have had the experience of other legislations; where the implementing agency insofar as the State is concerned is the State and, if the State does not concur, nothing happens. So, in such a situation, this Bill would be a non-starter insofar as state tribunals are concerned, because the States do not want them. If the States don’t want them, in the federal structure of ours, the Centre has to persuade them. They cannot just assume that the States agree with them.
SHRI BALAVANT ALIAS BAL APTE (CONTD.): In so far as the Tribunals are concerned, this is something which ought to be considered. When offences are created and when there is a need to go to courts, it is said that there should be a Judicial Impact Assessment in so far as the court system is concerned. A learned Committee has given its report. Now when we are creating so many
tribunals, it has become necessary to have a Judicial Impact Assessment because every Tribunal is amenable to the jurisdiction of the High Court and Article 226 gives power and opportunity – power to the court and opportunity to citizens -- and a great impact of every such Tribunal and its decision will ultimately come under the jurisdiction of the High Court.
One has to examine as to what is this Judicial Impact because ultimately the existence of a Tribunal creates litigation, and if that litigation is going to be pending in the High Courts for years together, then creation of the Tribunal becomes ridiculous. If the Judicial Assessment for civil courts is necessary, then it is also necessary for Tribunals.
Now I come to the provisions of the Bill. Sir, the hon. Minister is an eminent lawyer and probably he has taken care of his fraternity. Therefore, he has created provisions which will create litigation and a lot of work and money for lawyers. Clause 3(1)(w) talks about service matters and disciplinary matters. They are not defined here. They may be defined in some other Act; I don't know
when that Act will come. What is a service matter or what is a disciplinary matter may create a lot of litigations. Every action can be contested. Then I come to clause 15. It talks about unfair practices. What is an unfair practice of an educational institution is not defined. This will also be incorporated from other legislation which has yet to come and that ultimately will lead to litigation. What is an unfair labour practice is something which will create litigation and every lawyer will have his own interpretation, and in this country every judge will have his own interpretation. So, it's a haven for lawyers. Clauses 17 and 33 say that whoever comes to this Tribunal should first avail of all the other remedies which are available to him. What are all other remedies? Litigation. You have to see whether he has gone to the higher authority, or, whether he has gone in revision? Or is it an efficacious remedy? I don't think anybody will leave any of these questions out before going up to the Supreme Court because it is a contentious issue which is not defined, not clearly said and not clearly laid down. It is put so vague so as to enable lawyers to create litigation. Then there is a provision for appeal to the National Tribunal. Again a doubtful remedy. There are issues relating to article 226, Supreme Court, going to the Appellate Court and writ petition. This may lead to litigation. Then we are providing appeal to the Supreme Court. Why? What is the necessity? Supreme Court has the power to interfere if it wants to interfere. Creating a right to appeal is something which may again create litigation. If Tribunals are there not to prolong litigation, then you are giving a handle for prolonging litigation.
SHRI BALAVANT alias BAL APTE (CONTD): Then, there is a provision for execution. I am only going through the list. Each of them can tell you how many possibilities of litigation are inherent in the legislation itself which is kept so vague deliberately. Execution is provided. The Tribunal shall execute. Can it be sent to the civil court? Then, the Collector is also in the execution - collecting money as land revenue. So, what will overlap which? Can I go directly to the Collector for execution, as the Tribunal sent me to the Collector?
The clauses are not clear.
Then, it is provided that the Tribunal is independent. Tribunal is not within the clutches of the procedure of laws like the Civil Procedure Code and the Evidence Act. Then, the question comes about the fairness of the procedure. I remember litigation about various arbitrations. There also, there is no Civil Procedure Code, no Evidence Act. But, for any procedure, in this country, the law of the land says that it must be fair. So, where lies the line of fairness? Somebody has to decide. So, the Tribunal will decide and whether the Tribunal has decided correctly is something for the court to examine because we have seen tribunals thinking that since Civil Procedure Code and the Evidence Act do not bind them, they can do whatever they want. They will take the evidence of their choice. I have seen judgments. I am not talking in the air. I have seen
judgments of arbitration tribunals, of arbitrators going berserk because there is no CPC and no Evidence Act. Same thing is here. So, again, what I said in the beginning, I have only listed seven provisions, the provisions which provide readymade material for litigation because the provisions in the Bill are vague. Probably, those, who made these provisions, do know this, but there should be
some legislation; so make it. Therefore, I said, "It is half-baked."
Therefore, I said, "There is no home work."
THE VICE-CHAIRMAN (PROF. P.J. KURIEN): There is one more speaker from your Party.
SHRI BALAVANT alias BAL APTE: I am aware, Sir, and I am never required to be told. I have listed only seven. But, if you go through this little more carefully, you will get another 17 where the provisions are made by a routine drafting clerk without going into the merits of the definitions. Therefore, I believe this is something which must be gone into.
There are only two things I want to mention. One, in this entire structure, the student is missing. He is conspicuous by his absence. If you go to Internet you get similar provisions in other countries. I have seen that list. I am not going to mention it here. In each of those legislations, in Europe, in the U.K. , in the U.S.
Secondly, minority institutions are excluded from such a vital structure of tribunals. Then, where are we going to lead the minority institutions? That is one question which we must answer.
Regarding clauses 49 and 50, I want to mention this because they contradict each other. One says that the provisions of this Act are overriding. The other says that it is in addition to the earlier provisions. So, is it in additional or, is it overriding? We don't know. Probably, the makers of the legislation don't know, and it will be for the Courts to interpret. Therefore, I urge that your good effort
THE VICE-CHAIRMAN (PROF. P.J. KURIEN): There are only five minutes left for your Party.
SHRI BALAVANT alias BAL APTE: should begin with something good, and, therefore, withdraw this legislation which is useless.
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