SC VERDICT ON PROFESSIONAL EDUCATION

 Persisting Confusion, Weaknesses Must Be Removed

 K K Ragesh

A DANGEROUS state of affairs has been nagging the arena of professional education in India, with private managements and various state governments giving dubious interpretations to the October 2002 verdict of the 11-member constitutional bench of the Supreme Court of India in the T M A Pai Foundation case. Such contradictory interpretations by different parties, especially by vested interests, have created a lot of confusion. The verdict has caused chaos in the entire system of professional education in our country, with many students losing the opportunity of education due to unprecedented profiteering legitimised by this verdict. The ability to pay hefty kickbacks as the eligibility criterion to get admission into professional educational institutions has replaced academic excellence. Exorbitant fee hikes are further taking education beyond the reach of the common people.

The apex court then formed another constitution bench for interpreting its own judgement in response to the fears and queries of many who condemned the Supreme Court verdict in the T M A Pai Foundation case. This August 14 judgement of the constitutional bench, on a number of special leave petitions and writ petitions filed by various state governments and self-financing college managements, as well as the interlocutory applications submitted by students’ organisations including the SFI, has opened up new debates in the arena of private, self-financing professional education.

GIST OF THE VERDICT

The new verdict leaves many contentious issues involved in various pending cases between private managements and state governments to the regular benches for disposal on merit. However, it lays down clear-cut norms regarding the ratio of management and government seats, and gives a specific directive on the question of fee structure. The verdict clarifies that admissions should be based only on merit lists prepared through common entrance tests. It rejects the argument that managements have absolute power over admitting students and deciding their fee structure. It also bans capitation fee and directs professional institutions to make provisions for ensuring reservation of students from economically and socially backward sections. The Pai case verdict had given unbridled legitimacy to commercial interests and “user-pay principle” in education. The new verdict, significantly, reinstates some rights of the government to impose “reasonable restrictions” on the functioning of private and professional educational institutions.

The apex court makes a recommendation for forming a 5-member committee chaired by a retired High Court judge to take final decisions regarding fee structure and to supervise that merit is maintained while admitting students. Representatives of the Medical Council of India (MCI) or All India Council for Technical Education (AICTE), a reputed charted accountant and another person of repute recommended by the chairperson will be the members of this committee. Medical/technical education secretaries of respective states would work as secretaries of these committees. The committee has the right to ensure that capitation fee or exorbitant fees are not collected from students. A self-financing institution can submit its proposed fee structure along with its annual accounts statement before this committee. The committee will be at liberty to approve or reject the proposed fee structure and recommend some other fee structure to the institution. The fee fixed by the committee shall be binding for a period of three years. The verdict further clarifies that no institute can charge any other amount, directly or indirectly, over and above the amount fixed as fees, and that if any excess amount is charged it would amount to charging capitation fee.

SETBACK TO TRADERS OF EDUCATION

The verdict further directs that students admitted even through the management quota should be from the merit list prepared on the basis of the common entrance test. This entrance test must be conducted either by the association of managements or by government agencies. The court suggests certain methods for supervising the common entrance test conducted by the association of managements for ensuring that the test is conducted in a fair and transparent manner. This is a definite setback to the traders of education who want to replace the criterion of merit for admissions with money power. It eventually discards the argument that private unaided managements enjoy complete autonomy in admitting students and fixing any fee structure.

With regard to management quota admissions to minority institutions, the apex court reiterates that while admitting students of their community or linguistic group in management quota, inter-se merit among the students of their community/language should be ensured for admissions. If management quota seats cannot be filled up from members of the minority community, then other students can be admitted, but only from the merit list prepared by government agencies. Moreover, government quota admissions must be done absolutely on the basis of the merit list prepared from the common entrance test conducted by government agencies. Significantly, the Supreme Court also recommends that provisions must be made for poorer and socially backward students in admissions. 

According to the judgement, in order to ensure transparency in the conduct of the proposed entrance test, a state government must form another committee. It will be headed by a retired High Court judge, with the secretary in charge of medical or engineering education of the respective state government acting as the secretary of the committee. Besides, a prominent academician of the state, vice chancellor of any university in the respective state and a doctor or engineer too will be nominated as members of the committee. The committee shall have the right to call for the proposed question paper, to know the names and other details of the persons who prepare the question paper, and also to check the methods adopted to ensure that the papers are not leaked. The committee will also be the ultimate deciding authority in matters of dispute regarding fixing of seats according to the quotas allotted to different categories.

MANAGEMENTS EXPLOIT SITUATION

The court allows respective state governments to decide the percentage of government and management seats in unaided professional colleges according to the local needs. The court also categorically rejects the claim that the managements have the absolute right to admit students to the entire seats. While remaining silent on the fee structure, the court has directed that a ratio of 50:50 must be maintained for admissions to various institutions for the current academic year. This has sparked a new controversy since the 5-member committee, which has the right to stipulate fees, is not in place in most of the states. Thus the managements, which only have the right to suggest and not to decide the fee structure, are fully exploiting this situation by imposing hefty fees upon students. This practice by the managements is completely opportunistic and against the spirit of the court judgement. It is not the managements but the concerned state governments who must decide the interim fee structure.

Vested interests are still offering many interpretations of the Supreme Court verdict to benefit the commercial and profit oriented private managements. It is being interpreted that the fee structure for the seats of both the managements and the state governments must be the same in view of the abolition of cross-subsidisation by the court. However, there is no logic in this argument since a common fee structure will completely invalidate the basis for having a government quota in the first place, i e to provide equality of opportunity to the deprived sections of our society. It is necessary to ensure that the fees for merit seats from government quota in unaided professional institutes do not exceed the fee paid by the students from government institutes. The fact that the verdict of the constitutional bench helps the governments to control the private, self-financing managements is by itself a criticism of the principle of free trade in education to make profit out of it.

DISTURBING OBSERVATIONS

The court has made many contradictory and disturbing observations in this judgement. Labelling education as a ‘charitable’ exercise on the one hand and allowing managements to make ‘reasonable surplus’ from fees on the other is in itself incompatible. It has also failed to make the common entrance test conducted by government agencies mandatory for admissions in all professional institutions, thereby leaving scope for having two separate examinations for admission to the same institution from different quotas. The suggestion of the court to have a bond written by students at the time of admission, stating that they will study for the entire duration of their course, is also an undemocratic exercise, which will prevent students from going for better options.    

The verdict lacks concrete suggestions to ensure the social accountability of the committees formed to control private, self-financing professional educational institutions. When the whole system is drowned in corruption, with judiciary itself being no exception, can one expect that a committee that is not accountable can act judiciously? How can one ensure that its decisions are not affected by vested interests? These committees can also be used by governments committed to the policies of liberalisation to pass on the blame for the consequences accruing out of their own anti-people policies.

In a democracy, the policymaking authority lies with the representative bodies elected by the people. A government cannot shy away from its responsibility and pass on the buck to the judiciary. If any government tries to shift the blame away from itself and on to the judiciary, it tries to divert the people’s ire on to the judiciary. The legislators must wake up much before the present judgement given by the 5-member constitution bench gives rise to numerous litigations. A suitable legislation must be immediately enacted to empower the state governments to control the private unaided institutions before they press for a 7-member bench to gain leeway.