– Jaideep Khanna*
A decision of the Delhi High Court in Laxmi College of Education v. National Council for Teacher Education, has once again opened a pandora’s box with respect to the litigation surrounding regulation of teacher education institutions in the country. The issue for consideration was whether a central education regulator, such as the National Council for Teacher Education [‘NCTE’], can incorporate a policy decision of a state government on the aspect of mushrooming of educational institutions. The NCTE, established under the NCTE Act, 1993, is the apex body for regulating teacher education in India (similar to All India Council for Technical Education and Medical Council of India).
The NCTE Act, 1993 empowers the central government to frame rules and regulations to carry out the provisions of the act. Accordingly, the NCTE 2014 regulations introduced regulations pertaining to the norms, standards and application processes for new and existing teacher educational institutions. Pertinently, Regulation 7 provides for the application process for institutions under which amongst other requirements, a formal recommendation is to be sought from the concerned state government. Regulation 9 stipulates the norms and standards to be met out by institutions for existing and newly introduced courses. A 2019 amendment to Regulation 9 introduced two new courses. The two courses were four-year integrated teacher programme courses for pre-primary and upper primary to secondary schools (hereinafter referred to as ITEP).
A public notice dated 20.05.2019 was issued by the NCTE seeking invitation of applications for the ITEP courses. The requirements under the notice included inter alia a specific list of States, Union Territories and Districts from which applications were to be invited. Therefore, by necessary implication certain institutions were ousted from applying for the ITEP courses. The NCTE justified this exclusion on the basis of state government’s expressing their explicit discontent to allow more institutions to be opened on grounds of depleting standards of education and increasing unemployment.
Aggrieved by the public notice, the institutions sought to challenge the constitutionality of this exercise by arguing that the NCTE did not have the statutory authority to effectuate the concerns of the state government at a “pre-application” stage.
The Delhi High Court in Laxmi College partly decided in favour of the institutions by allowing institutions to submit their applications to NCTE for recognition, despite the explicit disagreements communicated by the state governments to the NCTE in this regard. The NCTE relied upon communications with state governments that expressed their discontent on the mushrooming of teacher educational institutions. Further, reliance was placed on statutory provisions and legislative intent of the concerned act and regulations. Regulation 7 of the NCTE Regulations, 2014 was relied upon to establish a pre-existing pre-requisite of state approval in an application process.
The court’s decision in Laxmi College offered a textualist interpretation to the regulations and held that the NCTE Act, 1993 does not allow the NCTE to restrict invitation of applications on the basis of “advance correspondences” and at a “pre-application stage”. Therefore, despite recognizing the bona fide of the NCTE, the court diluted the role of a state in allowing applications from institutions.
It is pertinent to highlight that the Delhi High Court’s decision in Laxmi College has been challenged by the NCTE before the Supreme Court and vide order dated 06.12.2019, the Supreme Court has ordered for status quo to be observed with respect to the pending applications of the concerned institutions. The case before the Supreme Court is currently sub-judice and the pleadings are yet to be completed in the matter.
The cause of concern at the moment is that the Delhi High Court has pending litigation concerning the state government’s authority under the NCTE Act, 1993. The pending cases include an appeal preferred by the NCTE to a single judge decision in Sir Chottu Ram Jat College of Education v. National Council for Teacher Education. The impugned order directed the NCTE to process the applications of 63 institutions which are located in states that have expressed their discontent on their applications. Other pending cases include a dispute involving the state government’s authority to deny issuing a “No Objection Certificate” to applicant institutions. It is anticipated that the Supreme Court’s decision in Laxmi College shall impact the fate of these cases.
The Division Bench in Laxmi College
The core argument of the NCTE in Laxmi College was that the state is a legitimate stakeholder in assessing the needs and requirements of the teaching profession. The empirical data analyzed by various state governments revealed a surge of educational institutions that have reduced the quality of teaching and heightened rates of unemployment.
Moreover, the NCTE in Laxmi College placed reliance upon the Concurrent List of the Constitution wherein the subject matter of education has been placed as entry 25 of the Seventh Schedule. It was argued that the Constitution recognizes that states have a necessary and legitimate stake in the educational infrastructure of the country. Taking this argument to its logical conclusion it was argued state governments are best equipped to assess the viability and requirement of new institutions.
The Court in Laxmi College had occasion to comment on the legislative mandate of the NCTE Act, 1993 and not restrict itself to a strict textualist interpretation. The preamble of the NCTE Act, 1993 becomes relevant to assess the legislative mandate for the NCTE. The preamble is reproduced hereinbelow:
“An Act to provide for the establishment of a National Council for Teacher Education with a view to achieving planned and co-ordinated development of the teacher education system throughout the country, the regulation and proper maintenance of norms and standards in the teacher education system and for matters connected therewith.”
Supplementing the preamble, the statutory provision of the NCTE Act, 1993 provide the NCTE with the authority to create regulations, norms and standards to ensure planned and coordinated development under Section 12 of the NCTE Act, 1993. Furthermore, as alluded to above, Regulation 7(5) of the NCTE Regulations, 2014 requires the state government to issue a recommendation for granting recognition to an institution.
It is reasonable to argue that the legislature envisaged a strong reliance on coordinated development between stakeholders to ensure a holistic development of norms and standards in teacher education. When concerned state governments express their discontent on cogent grounds of depleting teaching standards and rampant unemployment, it may not be alien for the NCTE to restrict invitation of applications from such states. The court’s decision in Laxmi College has only added to the ambiguity. It is reasonable to expect that state government’s will not provide the required recommendation under Regulation 7(5) of the NCTE Regulations, 2014 for the ITEP courses. Even though institutions may apply for ITEP courses, they would face rejection from the state government under the provisions of the act itself. In other words, the Court’s will have to address the concerns of the state government if the NCTE is ousted from doing so.
The Supreme Court of India has had several occasions to assess the state government’s role under the NCTE Act, 1993. In St. Johns Teacher Training Institute v. National Council for Teacher Education and Adarsh Shiksha Mahavidyalaya And Others v. Subhash Rahangdale And Others, the court adverted to the importance of the NCTE consulting the state governments in an institution’s application process. This was reasoned by stating that the state government would be most suited to assess the localized circumstances such as employment opportunities and quality of teachers.
The Supreme Court has adopted the importance of state autonomy to other areas of education such as medical sciences and technical education. Pertinently, the Supreme Court in the case of Modern Dental College and Research v. State of Madhya Pradesh And Others grants credence to the NCTE’s stance of state policy consideration. In the concurring opinion, Justice Banumathi held that the concerned state government must be responsible for the welfare and development of education. Furthermore, it was held that it is the duty of the state to ensure that correct steps are taken in the area of higher education as this directly affects the growth and development of the state concerned.
The decision in Laxmi College failed to consider the Supreme Court’s decision in Jawaharlal Nehru Technological University Registrar v. Sangam Laxmi Bai Vidyapeet where it was held that a state government/university has the power to refuse a grant of a “No Objection Certificate” to start a pharmacy course. The Supreme Court found favor with the state government’s argument of mushrooming of institutions.
Furthermore, the Delhi High Court in Laxmi College failed to consider the decision of the Supreme Court in the case of Chintpurni Medical College and Hospital v. State of Punjab which concerned the Medical Council of India’s requirement of obtaining an “Essentiality Certificate”. In effect, the requirement of obtaining an essentiality certificate was upheld. Therefore, the Supreme Court once again accepted the importance of the role of a state government in determining whether an educational institution is required to be set up or not.
However, the court in Laxmi College has not engaged with the precedents and legislative mandate argued by the NCTE. The court has emphasized the importance of following the letter of the law by reasoning that the NCTE Regulations, 2014 mandate a state government to issue a recommendation after an application has been made by an institution. Therefore, despite recognizing the NCTE’s positive intention to reduce inconvenience, the court found the NCTE’s decision to exclude applications from certain states to be foreign to the regulations themselves.
We are now at a stage where the Supreme Court’s decision in Laxmi College shall have a crucial impact on the pending litigation initiated by institutions against the NCTE. The Supreme Court would necessarily have to set out the contours of the role of a state governments policy decision vis-à-vis the NCTE as a central educational regulator. This would necessarily require a harmonious reading of the NCTE Act, 1993, NCTE Regulations 2014 and the Concurrent List of the Constitution of India, 1950 which places education within the domain of the state as well.
The Supreme Court may turn to its previous decisions pertaining to technical and medical colleges in the country or distinguish the applicability of these decisions to the NCTE.