New Delhi: The UPA Government is trying hard to get the new Bills for Higher Education in India approved in this winter session of Parliament. Minister for Human Resource Development (HRD) is leaving no stone unturned to convince the UPA allies and Party MPS on these Bills.

As per the recommendations of the Parliamentary Standing Committee on HRD, the Union Cabinet has approved the amendments to the 'Prohibition of Unfair Practices in Technical Educational Institutions, Medical Educational Institutions and Universities Bill, 2010'.

While The Educational Tribunals Bill, 2010 was postponed in the Rajya Sabha over a year ago, another controversy regarding the New Bills for Higher Education proposed by MHRD has evoked.

Legal luminaries have pointed out that the move of the UPA Government to control and regulate the Universities is "Unconstitutional". They informed that according to the exclusion contained in Entry 44 of List I, Parliament does not have legislative competence to legislate in issues of universities.

The State legislatures have a right to alone forming the regulatory regime for universities in their respective state.

Former Chief Justices of India analyzed the Bills named as 'The Prohibition of Unfair Practices in technical educational institutions, medical educational institution and Universities Bill, 2010', 'The National Accreditation Regulatory Authority for Higher Educational Institutions Bill, 2010', 'The Educational Tribunals Bill, 2010', and 'Higher Education and Research Bill 2010' on the Constitutional Anvil.

Astonishingly, provisions contained in these above mentioned Bills, proposed by UPA to include universities oppose to the provisions of the Constitution and the Federal Structure of the country.

Justice Madan Mohan Punchhi, former Chief Justice of India & former Chairman, Commission on Centre State Relations, Ministry of Home Affairs, Govt. of India commented on 'The Educational Tribunals Bill, 2010' that the State Legislatures can only draft an enactment for establishment of Educational Tribunals for final judgment of universities matters.

Therefore, the clauses mentioned in the new bill to include universities violates the constitution and the concept of separation of powers. The bill lacks legislative competency and if it is enacted as a law, it will be beyond the powers of constitution.

Justice Punchhi expressed the same opinion in case of other bills as well.

Justice A S Anand, former Chief Justice of India& former Chairperson, NHRC, said that the Parliament does not have power to legislate in matters of universities to establish any regulatory regime according to the exclusion mentioned in Entry 44 of List I and the State Legislatures alone have the power to constitute the regulatory regime regarding universities in the respective states.

Thus, the proposed Bill if enacted by the parliament would lack legislative competence and in that case would be ultra-vires the Constitution.

Justice K N Singh, former Chief Justice of India and former Chairman Law Commission of India analyzed 'The National Accreditation Regulatory Authority for Higher Educational Institutions Bill, 2010' and expressed that the legislative power under Entry 25 of List III cannot override provisions contained in Entry 32 of List II and Entry 44 of List I which do not provide power to the Parliament to enact law to control or regulate Universities.

Therefore, the New Educational Bill is Unconstitutional and the proposed law will be highly controversial to the extent that court may strike it down.

According to R.C.Lahoti, former Chief Justice of India, the creation of tribunals by the Centre has dual impact. Firstly, The Centre envisages taking over the administration of universities including the ones which are enacted by State Legislature. Secondly, the final judgment of any disputes regarding universities will be transferred in hands of the Tribunals set up the Centre.

Overall, several clauses contained in the New Education Bill are against constitutional Provisions as stated time to time by the Supreme Court of India.

Failing to get through the test of constitutional validity and encroaching upon the State's right, these bills might be the next big issue to be raised by the opposition in parliament.