People's Democracy

  Allowing Space For Free Trade In Education

K K Ragesh

A RECENT judgment by the seven-member constitution bench of the Supreme Court (P A Inamdar & Ors V/s State of Maharashtra & Ors) has permitted private managements to have absolute autonomy in admitting students and deciding fee structure. This pronouncement has invited large-scale protests. The court while abolishing state quota and reservations in private self-financing institutions argues that such impositions are an infringement upon the autonomy of private managements. Hence, judiciary has allowed private management with a free hand in their quest for free trade in education. However, it is to be noted that a 7- member constitution bench cannot go into the question of the judiciousness of the judgment in the TMA Pai case which is of a larger bench. The seven-member bench, therefore, considered merely a single question: whether the 5–judge Bench decision in the Islamic Academy case is any manner inconsistent with 11–judge bench decision in Pai Foundation. It is in this context that the court has overruled the government quota stipulated in the Islamic Academy judgment. While making the decision on more than hundred writ petitions and Special Leave Petitions and IAs the judgment, in effect does not give reasonable solutions but in fact opens the case for a number of future litigations.

PAI JUDGEMENT DIFFERENT INTERPRETATIONS

In fact the Pai Judgment itself is prone to various interpretations with its inconsistencies in findings and conclusions. While giving unlimited freedom to private managements to set up fee structure and admit students, the Supreme Court opines that educational institutions are charitable institutions and the fee charged should not amount to profiteering. At the same time it allows private managements to generate a reasonable surplus, the vague nature of which is an invitation for commercialisation of education. While talking about merit based admissions the judgment conveniently allows to sabotage merit-based admissions by permitting the consortium of private managements to conduct Common Entrance Tests which are often prepared on the basis of bogus merit lists. Despite the fact that the verdict bans collecting capitation fee, it suitably leaves all loopholes to collect capitation fee. Yet, it is ironical that the Inamdar judgment itself makes the observation “that certain recitals, certain observations and certain findings in Pai Foundations are contradictory inter se and such conflict can only be resolved by a Bench of a Coram larger than Pai Foundations”.

The Pai Case and subsequent verdicts could not resolve any of the issues that confront the professional education sector of our country. Rather they disrupt the existing limited social control over self-financing institutions. The only way out is a new legislation in the parliament to control private management and a ban on the commercialisation of education. As decided by the state education ministers’ conference held at Bangalore on January 10 & 11, 2005 a draft legislation to regulate admission and fees into private professional colleges is being prepared by the Union Ministry of Human Resources Development (MHRD). This legislation is named ‘The Private Professional Educational Institutions – Regulation and Fixation of Fee Act 2005’ and was circulated in the CABE meeting held recently. The government will send it for recognition of the Ministry of Law after seeking opinion of state governments. The MHRD is expecting to enact the legislation within a very short span of time.

DRAFT LEGISLATION

In a press meet held after the CABE meeting, the union minister for Human Resources Development (HRD) Shri Arjun Singh responded to reporter’s queries by saying that the proposed legislation would be enacted irrespective of the Court’s stance on it. However, any divergence of views is unlikely to arrive between the Court and the Ministry in the case of this legislation because the proposed legislation does not contradict any of the court’s earlier verdicts. Various clauses in the draft legislation related to admission of students and fixation of fee are a reiteration of the retrograde conclusions drawn by the Supreme Court in the TMA Pai, Islamic Academy, P A Inamdar cases. Many clauses in the new legislation are designed to ensure the commercial interests of private managements. Therefore, it is irrational to believe that the draft bill will be challenged by private managements in court.

According to the draft legislation, a three-member committee headed by a Vice-Chancellor would be responsible for fixing fee and maintaining transparency in the functioning of professional colleges. In case of central universities and deemed universities the responsibility would rest with the Vice-Chancellor of a central university. Similar committees lead by Vice-Chancellors of state universities will be formed in all states. These committees shall have the power to ask private professional colleges to submit all relevant documents before the fixation of fees. Any appeal against the decision of these committees shall be given to the appellate committee. A High Court Judge in all states would head the one member appellate committee. At the central level there will be a similar committee headed by a Supreme Court judge.

Many of the clauses in the draft legislation overturn the charitable object attached with educational institutions working on charitable/service basis. The draft legislation states that the fees can be fixed only after considering the location of the professional institute, the nature of the professional course as well as the cost of the land and building. The committee shall also consider the available infrastructure, the expenditure on administration and maintenance, and also the revenues foregone on account of waiver of fee, if any, to the socially and educationally backward classes and other economically weaker sections of the society. Above all, instead of using the word profit, the draft legislation also makes use of the term “reasonable surplus” which was used by the Supreme Court to baptize the commercial motive. All these reflect the callous concept of market dictates that not only demand full cost recovery for all services including education, and also its’ profits. With regard to the “Management Quota,” clear guidelines are given that it should be not less than 50 per cent of the sanctioned intake in minority institutions. In case of private non-minority institutions, management quota is a maximum of 50 per cent. And the managements are allowed to decide the extent of the management category from out of the sanctioned intake. Above all the managements are allowed to admit foreign students against seats, not exceeding 15 per cent, over and above the sanctioned intake. The consortium of managements can admit students by conducting their own common entrance test. Although it is stated that the responsibility of ensuring transparency of such entrance tests rests with the proposed three-member committee, it’s role in the conduct of entrance is not clearly mentioned in the legislation.

MINORITY EDUCATION COMMISSION

Section 2(g) of the Minority Education Commission Act (MECA), which was enacted to give affiliation to minority institutions in central universities, invited lot of criticisms. The Act defines ‘Minority Institutions’ as institutions run by an individual or a group of individuals who belongs to a minority community, rather than those which provide educational opportunities to members of the minority community. In reality, most of the institutions, which are functioning under the label of minority institutions, are in fact not serving the purpose of the welfare of minorities. The admission to such institutions is given only to those who can afford huge amounts as capitation fee irrespective of their minority identity. Hence, the demand to incorporate a clause that ensures opportunities for the economically backward students among the majority of the minorities was raised. The HRD minister assured the left MPs who raised this demand that while enacting the legislation to control self-financing institutions the issue will be addressed. But this issue has not found any concern in the present draft bill. What is given is an ambiguous definition that the government would notify the “minority” for the purpose of this Act and the “minority institutions” will be those institutions, which are run by the said “minorities.” Nevertheless the draft Bill is silent on the criteria on the basis of which the central government will decide the “minority” status. It is important to find a way out to prevent the abuse of Article (30) of our constitution and hence ensure that true minority interest is protected.

DEEMED UNIVERSITIES

Although deemed universities are also included under the purview the Act, the majority of the clauses are not applicable to them. Admissions to such institutions are to be done from the merit list prepared on the basis of the All India Entrance Test conducted by respective universities. By giving nod to such private institutions that are accorded the deemed university status the government in fact is favouring private managements to prepare “bogus mark lists” and auctioning of seats. Furthermore, students will be forced to appear in unlimited number of entrance tests for a seat when over a hundred such institutions conduct several entrance tests. Again it is important to note that no general seats are provided in such institutions. After providing the deemed university status to private institutions, the government would be conferring blank cheques for free trade and auctioning of education to deemed universities in the name of autonomy. Private investors are well aware of the fact that deemed university status is the bypass to skip the limited control of affiliated universities and state governments over such private educational institutions. Presently large numbers of self-financing institutions are waiting in queue for a decision on their application for deemed university status from the MHRD and the UGC. The private self-financing lobby is all set to cash on the deemed university status as soon as the draft legislation comes into existence.

The proposed committee to fix fees in professional colleges, the 50 per cent management quota, the entrance test by the consortium of private managements and the ‘reasonable surplus’- all these are the pernicious perceptions that the Supreme Court had already uttered in the Pai and Islamic Academy cases which are mere reverberations of neo-liberal policies. Legitimising the same views with legislative stamp cannot be the solution to the present problems in the professional education sector. The court at least showed benevolence to ban capitation fee for formality, whereas in the draft legislation there is no reference to controlling capitation fee. While referring to the fixation of fees, the Court directed to consider recurring expenditure with a surplus, but in the draft it has become all the costs including infrastructure, land and buildings, maintenance and other liabilities of the institutions. The MHRD has also made its part clear by allowing private managements to conduct their own entrance tests and keeping silent on bringing the entrance test conducted by the consortium of managements under a committee proposed by the Court. While ensuring loopholes to collect capitation fees, the legislation doesn’t have any provisions to ensure government fees in general seats. The only relief is the promise of reservation/ fee concession for the economically and socially backward students. The clause, which allows considering the vacant seats under management quota under general quota, is also a welcome step.

The government should enact the Draft legislation immediately after removing the present shortcomings. New provisions need to be added to enable government fees in general quota and to stop capitation fee. Clauses must be included to implement fees fixed by government in general seats. Besides this, the lone way to control capitation fee as well as charging exorbitant fees in management quota is to admit students from the rank list prepared on the basis of the entrance test conducted by the state agency. Provisions must be included to form governing bodies with the participation of elected peoples’ representatives, teachers, academicians and students. Such governing bodies should be empowered to examine all relevant documents related to the respective institution. The clause, which makes consideration of the cost of building and land while fixing fees, must be removed. Charging fees from students, for building and land, which remains with the owner forever, is not justifiable. It is also worthwhile to state that the assets of minority institutions hereditarily belong to members of respective communities. Members of respective communities had imparted years of collective and concerted effort to establish such institutions and hence they might have the right to get benefit out of the assets. But unfortunately studies show that even members of such communities are getting deprived of such rights. 

SELF-FINANCING INSTITUTIONS

The demand for a central legislation to control self-financing colleges came for the first time after the verdict of an 11-member bench of the Supreme Court. This demand is to be understood in its proper perspective. Initially the Court in the Mohini Jain case instructed private colleges to collect the fees at par with that of the fees collected for the equivalent course in government institutions. Later in the Unnikrishnan case the Court suggested a scheme of 50% payment seat (higher fees) and 50 per cent free seat (government fees). In TMA Pai case, the Court gave the private institutions complete autonomy to collect higher fees as well as to admit students. This resulted in massive denial of educational opportunities to economically and socially backward students and academic excellence was replaced by money power. No private institution ever bothered to follow the Court’s advice to give freeships and scholarships to socially and economically backward students. The situation aggravated further to result in suicides by a number of students. All these factors and developments together led to the demand for Central Legislation to solve the crisis created by successive court verdicts. 

PRESENT CRISIS IN PROFESSIONAL EDUCATION 

The proposed draft legislation is not capable of solving the present crisis in the arena of professional education. At the most it serves the purpose of giving endorsement to the legislature for the “inventions” made by the judiciary in the Pai and subsequent cases. The Common Minimum Programme on the basis of which the United Progressive Front government was formed says that no student is denied access to professional education since she or he is poor. It is not desirable to legislate the concept of user pay principle propounded in the Ambani- Birla report.The new legislation shall adversely affect the future of socially and economically backward students by abolishing opportunities for affordable professional education. The role of the government in a society where the gap between the haves and have-nots is increasing day by day should not be confined to the protection of the interests of the elite classes. The Centre and the MHRD must make constructive and immediate changes in the draft Bill to ascertain social control over self-financing institutions and also to prevent black marketisation of higher education. Effective and inevitable intervention by the academic community as well as constant effort by the left is required to realise this.