COMMENTARY

A Bill to Kill Higher Education

Radhika Menon

The union cabinet has given the green signal to Kapil Sibal to table the Foreign Educational Institution (Regulation of Entry and Operation) Bill, 2010, in the Parliament. Part of Sibal’s much touted 100 day agenda, the Bill proposes to make laws prescribing the approval of branch campuses of foreign educational institutions in India.
The Bill which has still not been made available in the public domain and is being guarded secretly exemplifies the functioning of this government which has gone ahead with important policy and legislative actions without any public consultation, debate or discussion. Nevertheless, a look at a 2009 December version of the Bill in the light of Sibal’s grand pronouncements suggests that once more, global pro-corporate interests are in play in the guise of educational reform.
FEPs in India
Foreign education providers(FEPs) have been operating in the country since the year 2000. Despite protests, foreign direct investment in education was permitted and 100 percent equity was allowed in educational institutions. Those who entered educational activities, worked through a variety of forms including that of twinning - wherein enrolled students complete part of their study in India and partly in educational institution situated abroad, offering dual degrees and collaborative education with a local private educational institute. The quality of these programmes have been doubtful, while their costs have been very high. Much like the domestic private operators, they preyed upon the educational and employment insecurities of post liberalised India and the gaping holes in access to quality higher education and made huge profits at the cost of the students. Many domestic private institutes expanded their base by palming off mediocrity in the name of associating with a foreign institution.
In this context, regulation is certainly called for, but the Bill reveals that more than regulating, it is actually attempting to create a smooth passage for the FEPs to set up shop in India. Even though FEPs twinned, franchised and collaborated with institutes in India, they were not able to provide recognised degrees and diplomas to their students, who were neither able to apply for public sector employment or further domestic degrees on the basis of qualifications earned. This limited the market expansion of these institutes and they could never attain the popularity that the liberalisation gurus hoped they would. Moreover, the FEPs could not declare themselves as a university as this involved being regulated by a higher education body and being governed by a Central or a State Act.
The Bill bridges the gap by ensuring that it fulfils what foreign direct investment alone failed to do: i.e. provide legitimacy to a commercial enterprise. Thus, the Bill grants legitimacy to the activities of a foreign company through a Central Act, making them at par with the Indian universities by recognising their degrees and yet giving them a special start to tap higher education as a marketable commodity by allowing them to be governed by another set of rules.
Hollow claims of regulation
While regulating foreign education providers and reigning them in is definitely a priority requirement given the students who are falling prey to their advertisement campaigns, the current Bill is least concerned with regulatory aspects.
Regulation implies, not only deciding terms of setting up but also regulating the courses, programmes, types of degrees and most importantly the fees charged, as well as the students, teachers and staffs’ rights. Yet it is largely silent on most of these counts. On the issues of fees, a great pretence is made: the clause actually calls only for publishing fees charged and not restraining them, thus permitting foreign institutes to charge what they want.
The Bill also dilutes the meaning of what regulation means by limiting it to laying out the terms and the process for becoming a functional FEP. In a clever play of words, it attempts to establish the complete commercialisation of education. While it calls for stopping repatriation of profits from surplus generated in operations, it does not stall the commercialisation of the educational process itself and in fact encourages the investment of surpluses for expanding the foreign educational business within the country. Venture capitalists across the world today are happy investing in educational enterprises because even during recession it was found that the educational business assures regular income. By not stopping profit-making from education provided it is reinvested in education, it is actually laying out a blueprint for the future course of expansion of higher education. Notably, non-repatriation of profits is with reference to profits over operational costs, but it is still possible for companies to repatriate profits provided the routes are different like faculty consultancies and projects, which have lately become a big income resource for several top rung universities.
The Bill soon enough overturns its own claims of regulation: it declares that the Central government on the basis of a three-person advisory can overrun the limited regulatory provisions on procedures and penalties for certain institutes if they stick to non-diversion of profits from educational activities! But soon enough, even the not-for-profit clause is given up: FEPs that give certificates and awards which are not degrees or diplomas can do what they like, if only they keep reporting their activities!

Further evidence of the hollowness of 'regulatory' claims is the fact that there is no attempt to regulate the application of constitutional laws of non-discrimination and implement social justice in these institutions. While the high fees will lock out large sections of students, absence of reservation policies will ensure that these institutes remain the preserves of the privileged castes and classes. A dangerous proposal considering that Sibal has already gone to town declaring how these institutions will set best practice benchmarks, indicating that in the years to come social exclusion is going to be the indicator of quality education.
So the question is what is the Bill supposed to regulate, when it does not check the fees demanded from students, allows no student union (only a council), waives off penalty provisions for a broad category of FEPs, does not implement social justice laws, and permits commercialisation in the area of education besides creating regulatory loopholes to allow favoured FEPs to escape.
The main regulatory body mentioned in the Bill, the University Grants Commission, is itself facing a doubtful future, with the impending emergence of the National Commission for Higher Education and Research(NCHER), which is in the pipeline in the form of yet another Bill in the Parliament. It has already been announced that NCHER is likely to act as the regulatory authority for FEPs. While regulatory authorities of the likes of AICTE, UGC, NCTE and others in the country have been mired in bureaucratic troubles and corruption, substituting them with another body with still less representation is hardly likely to make things any better; if anything there is a strong likelihood of things getting worse.
The bluff of Sibal’s concern for poor quality of deemed universities has also been called with this Bill as it seeks to allow the FEP to become a ‘deemed university’ if it so chooses, this even before any merit has been proved on the quality of these institutes.
The FEP Bill and GATS
The FEP Bill should be seen in the light of the commitments India has given to the World Trade Organisation (WTO) on Higher education. Opening up for General Agreement on Trades and Services (GATS) negotiations on higher education has been long on the agenda of the UPA government, which had first made its moves in the previous term itself through a Consultative paper of the Commerce Ministry. Moving ahead, the FEP Bill establishes through an Act of the Parliament that higher education is a marketable service, which foreign educational providers are entitled to legally deliver through commercial presence in the Indian market by establishing Branch campuses. This fits in with the Mode 3 of GATS rules, which is meant for situations when foreign commercial presence is felt in domestic markets. Once identified within the Mode 3 format, India would be left with very little negotiation powers under GATS, whose trade rules are then bound to govern it since Indian has already made commitments at WTO. The GATS rules are notoriously against the poorer countries, and India with only about 12 percent of its population in higher education is thus going to face catastrophic effects of commercialisation of education that will affect the spread, access, content , nature, orientation and impact of higher education.
Higher education has played a fundamental role in the development of societies and changed the directions that it has taken. India is far behind the countries it proclaims to compete against. While nearly 22-27 percent of Chinese have access to higher education, in the middle income and advanced countries those accessing higher education amounts to 50 -70 percent of the population. Very few countries including those of the European Union have opened their markets out to commercial presence of the Mode 3 format within GATS. Yet India with its woeful under representation of the 18-24 age group in higher education is being put up for a commercial dismantling by the UPA.
Vacuous premise
The assumptions driving the FEP bill are far-fetched. It imagines that markets and FEPS can fulfil demand for higher education within the country. Higher education needs to be context-specific. In a country like India with its deep social fissures, higher education has the additional role of breaking the ceilings on opportunities available to certain sections of society. Its impact is way beyond private benefits and its costs must be borne collectively through public funding. The content of higher education also cannot be merely dictated by the call of a fickle market controlled from abroad, which has lately shown how degrees can become worthless as markets keep changing to the tune of global capital. The consequence for students who fall for loan markets, pay through their nose only to find the worth of their degree waning because international markets have changed, is devastating. Also by pricing knowledge, certain kinds of learning are rendered worthless whatever its social importance.
The assumptions of the pro-Bill lobby are fanciful too. It starts with the notion that students who leave India will stay back to study in the branch campuses of FEP. Only a minuscule section of Indian students go abroad and when they do so, they do it in the hope of settling there or on the look out for an international campus atmosphere. To imagine that tele-conferencing and foreign textbooks in a branch campus would provide a significant alternative for such students is hardly believable. Hence let there be no illusion that the UPA is actually inviting the foreign educational businesses – not for those students who leave but for those students who stay and then are forced to pay!
It is an established fact by now that franchises and branch campuses are often set up by foreign universities that are facing a crisis in their countries because of a cut in public funding. As a result they end up exporting poorer versions of their courses and implementing programmes that are commercially viable, so that they can remain afloat. They do not arrive to set examples on educational best practises, do fundamental research or to ensure wider access to higher education. They arrive with profits in mind and if they are unable to make it they will pack up and leave, or not arrive at all or worse but more likely get the Central Government to give them special provisions to bypass the rules. Given UPA’s surrender to corporate interest it would not be surprising to find rules being redrafted sooner than later.

The Bill fits in with the large game plan of the UPA government, which is to engineer a decline of public-funded universities and their dismantling and replacement with teaching shops both of domestic and foreign make. The annual budgetary provisions, including this year’s data indicate an overall decline in non-plan allocation to public universities and UGC, thus forcing them to either fail in maintenance or rely upon private funding for survival. The plan allocations are also headed towards the Public Private Partnerships models, which will further reduce education to a mere business opportunity with no social responsibility.