A Constitutional Analysis of Clause 12 of the Viksit Bharat Shiksha Adhishthan Bill, 2025
This blog has been written by Arnav Mathur, a 4th-year student at NALSAR University of Law, Hyderabad.
Introduction
On December 15, 2025, the Union Government introduced the Viksit Bharat Shiksha Adhishthan Bill, 2025 (“Bill”), proposing a comprehensive restructuring of India’s higher education regulatory system. The Bill seeks to repeal the University Grants Commission Act, 1956 (“UGC Act”) and related sectoral statutes. It would replace them with a single overarching framework for regulating, accrediting, and setting standards for higher educational institutions nationwide. At its core, the Bill aims to streamline regulation, reduce multiplicity of authorities, promote outcome-based accreditation, enhance institutional autonomy through graded mechanisms, and ensure uniform academic standards by vesting substantial powers in a newly constituted central regulatory body.
The overall objectives of the Bill are, on their face, significant and ambitious. They reflect long-standing policy concerns about fragmentation in higher education governance, uneven quality across institutions, and the need for a more transparent and accountable regulation. However, before engaging with questions of policy wisdom or administrative efficiency, this article attempts to tackle a constitutional question: is the Parliament competent to enact all the provisions it proposes under the existing federal distribution of legislative powers?
This article examines the Bill through the lens of legislative competence. It first outlines the constitutional framework governing education and the Supreme Court’s (“SC”) jurisprudence on the scope of Union and State powers in this domain. It then proceeds to a focused analysis of Clause 12 of the Bill. By applying settled principles such as the pith-and-substance test, the article argues that Clause 12 exceeds the Union’s constitutionally permissible role in standard-setting and intrudes into areas reserved to the States.
The Constitutional Framework
Under India’s federal scheme, “education” is a subject of shared responsibility but with important caveats. Today, Entry 25 of the Concurrent List empowers both Parliament and State Legislatures to legislate on education (including universities), “subject to” specific exclusive Union List entries. Among those exclusive domains is Entry 66 of List I, which grants the Parliament the power to legislate for:
“coordination and determination of standards in institutions for higher education or research and scientific and technical institutions.”
Simply put, the Union has the final say in setting and maintaining academic standards for higher education across India.
The States, on the other hand, have a concurrent power over education and an exclusive power under Entry 32 of List II, which reads:
“Incorporation, regulation and winding up of corporations, other than those specified in List I, and universities; unincorporated trading, literary, scientific, religious and other societies and associations; cooperative societies.”
The phrase “coordination and determination of standards in institutions for higher education” in Entry 66 has been interpreted to mean academic standards necessary to ensure nationwide comparability in higher education.[6] This power enables the Union, acting through Parliament and statutory bodies such as the UGC, to ensure that degrees awarded across the country reflect a broadly comparable level of learning and competence, and that minimum benchmarks for faculty, curricula, and evaluation are maintained.
In Preeti Srivastava v. State of Madhya Pradesh, the SC illustrated the scope of “determination of standards” by including the prescription of syllabi and curricula, teacher qualifications, examination content and quality, and minimum eligibility criteria for admission to advanced courses. The unifying principle is that these factors directly impact academic quality and the attainment of graduates. Accordingly, the SC struck down a State’s attempt to dilute the minimum qualifying marks for postgraduate medical admissions below the threshold fixed by the Medical Council of India, holding that central standards must prevail to maintain excellence. At the same time, it clarified that States may impose more stringent requirements to enhance quality, so long as they do not undermine the central minimum.
Earlier, in R. Chitralekha v. State of Mysore, the SC affirmed that unless a State law adversely affects educational standards or directly conflicts with legislation under Entry 66, the State remains competent to legislate in the field of education.
The SC has also clarified the limits of “standards.” In Modern Dental College v. State of Madhya Pradesh, which concerned common entrance tests for medical and dental admissions, the SC held that the conduct of an examination as such does not amount to standard-setting. While the quality and content of an examination relate to standards, the mere mechanism or agency conducting the examination does not, so long as academic rigour is preserved. Entry 66, therefore, does not confer carte blanche on the Union to regulate every aspect of education with a remote nexus to quality. There must be a clear and direct connection to maintaining academic standards. Where such a link is absent, the matter falls within the State or concurrent domain, particularly under Entry 25 of List III
Normatively, the allocation of power over the incorporation and organisation of universities to the States reflects a logic of proximity. State governments operate closer to local communities and would be better positioned to respond to regional educational needs, demographic realities, and socio-economic priorities. This proximity would also strengthen democratic accountability. Decisions concerning campus location and institutional structure would remain answerable to local political processes. Preserving this decentralised control would allow contextual responsiveness, while leaving the Centre free to coordinate minimum academic standards where uniformity is genuinely required.
These decisions help us understand the threshold. Parliament’s power under Entry 66 extends only to measures that directly preserve standards of higher education. Matters concerning the establishment, expansion, and internal organisation of universities would, by contrast, remain within States’ power under Entry 32. The next section tests Clause 12 of the Bill against this framework.
Analysing Clause 12 of the Bill
Clause 12 provides that:
“(1) Notwithstanding anything contained in this Act, any existing or newly accredited University shall establish constituent colleges, off-campuses and multiple campuses, only with prior approval of the Regulatory Council.”
Further sub-clause (2) states, “the manner of establishing constituent colleges, off-campuses and multiple campuses, shall be such as may be prescribed.”
To assess Clause 12, the statutory baseline must be identified. The Parliament’s exercise of Entry 66 since 1956 has been primarily through the UGC Act, which empowers the Commission to prescribe minimum academic standards, regulate recognition, and, in limited cases, withdraw recognition or grants for non-compliance with these standards. Crucially, however, the UGC Act contains no provision authorising the Commission to determine the legal existence of a university or its power to establish constituent units; those matters have consistently remained within the domain of State legislation or executive action under State law.
Clause 12 is therefore a qualitative shift. The provision does not merely set minimum academic prerequisites that an off-campus institution must meet to be recognised; it requires prior approval from a Central Regulatory Council for the very act of establishing constituent colleges and off-campuses, and delegates the “manner” of establishment to rules. This is control over form and existence. Who may exist, where, and in what organisational shape. It is not a mere assurance that a program meets a threshold academic standard. This shift matters because the Constitution assigns the incorporation and regulation of universities to States under Entry 32 of List II. The Centre’s historical leverage in recognition and funding is constitutionally different from a statutory power to pre-authorise establishment across States.
The SC, in State of Kerala v. Asianet Satellite Communications Ltd., held that where there is an apparent overlap between two entries, the doctrine of pith and substance is applied to find out the true character of the enactment and the entry within which it would fall. The enquiry requires the court to examine the enactment in substance rather than in form, having regard to the legislation as a whole, its scope, and its objects. If, in its pith and substance, the law substantially falls within the powers of the legislature that enacted it, it is not rendered invalid merely because it incidentally encroaches upon matters assigned to another legislature. The question of legislative overlap is determined by substance and not by degree.
Therefore, in the present context, the question is whether Clause 12, in its dominant character, sets academic standards under Entry 66 or instead regulates governance and incorporation under Entry 32. The SC jurisprudence, as shown above, consistently confines Entry 66 to the preservation of academic quality, not the control of institutional existence or governance. While standards encompass matters such as curriculum, faculty qualifications, and examinations, measures that merely restructure institutions or determine their legal capacity fall outside the scope of Entry 66. Accordingly, Clause 12 can be sustained under Entry 66 only if it bears a direct and substantial nexus to academic standards, rather than operating as a governance or incorporation provision.
Applying the abovementioned precedents, Clause 12 cannot be characterised as standard-setting. Its chief operation is to establish conditions conditional on prior central approval and to authorise the framing of centrally prescribed rules governing the “manner” of such establishment, effectively displacing State legislative and statutory frameworks that presently regulate these matters.Even if some aspects of a campus, such as faculty qualifications or lab standards, relate to quality, the power to pre-authorise and to prescribe the mechanics of establishment reaches far beyond ensuring comparability of learning outcomes. The delegated “manner” power is arguably equally defective. The Parliament cannot expand its competence under Article 246 by delegating the substance of incorporation to subordinate instruments.
The incidental-powers doctrine permits a legislature to incidentally encroach upon another field only where such encroachment is ancillary to the effective exercise of a power within its competence. It does not authorise the assumption of substantive control over matters constitutionally assigned to another competent legislature. Where the incidental effect of a provision is to systematically displace State authority over university incorporation and regulation, it cannot be argued that the encroachment is merely ancillary to standard-setting under Entry 66. Clause 12 operates as an independent regulatory transfer that the incidental-powers doctrine would not be able to sustain.
For illustration, consider the Maharashtra National Law University, Mumbai (“MNLU-M”). Since its establishment in 2014, MNLU-M has operated from rented premises in Powai pending the development of its permanent campus at Goregaon. Under the existing constitutional and statutory framework, decisions relating to the location and expansion of the university, including continued use of rented facilities or the establishment of additional campuses, lie within the State’s domain and the university’s powers under the Maharashtra National Law University Act. Clause 12 of the Bill would substantially alter this position. If MNLU-M were to continue its academic operations at Powai after relocating to Goregaon, or seek to establish an academic unit in another city, such as Pune, it would not be able to do so without the prior approval of the Central Regulatory Council and compliance with centrally prescribed conditions. What is presently a State-centred decision concerning institutional organisation would thus become contingent on central regulatory authorisation, extending Union control into matters of territorial organisation and structural governance traditionally regulated by the States.
Conclusion
Clause 12 of Bill marks a deliberate shift in the regulation of higher education and its increasing centralisation. Rather than merely prescribing academic standards, the provision conditions the very establishment and structural organisation of constituent colleges and off-campuses on prior central approval. Read against the distribution of legislative powers and the pith-and-substance doctrine, the Bill arguably moves beyond the limited standard-setting power.
The article has shown that Union’s legitimate role under Entry 66 lies in preserving academic quality and standards, not in pre-authorising institutional existence or displacing State incorporation regimes. Clause 12’s practical effect is arguably governance rather than standard-setting of regulatory control.
In this sense, Clause 12 is less about regulation alone and more about the price of uniformity. The pursuit of nationwide consistency, when untethered from the Constitution, risks eroding State autonomy and institutional diversity. Any durable reform must reckon with this trade-off rather than obscure it behind the language and rhetoric of efficiency.
No responses yet