People's Democracy

The Kerala Professional Colleges Bill And Social Justice

K K Ragesh

THE Kerala Professional Colleges (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non Exploitative Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Bill, 2006 serves as a prototype for all future legislations on ensuring social justice in private self financing institutions. The Bill is formulated on the lines of the 93rd (104 in its original form) constitutional amendment that empowers the state to make any special provisions by law, for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes or the scheduled tribes. 

The Supreme Court in its verdict in the Pai Foundation's case and subsequent cases allowed the government to ban capitation fee and to regulate fee structure to prevent profiteering. The court in the Inamdar case also ruled that in order to ensure excellence and maintenance of high standards in higher education, in national interest, the state could regulate admission procedure in private educational institutions, including minority and non-minority, through a ‘single window system’. The Supreme Court’s direction to reserve 15 per cent seats for NRIs and utilise the additional amount collected from such NRIs for the benefit of the students coming from economically weaker sections of the society; its direction to regulate fees and admissions etc. turned out to be the legal basis for the Kerala legislation.

PAI CASE VERDICT AND CROSS SUBSIDISATION 

The observations made by the Supreme Court in the Pai case for declaring the Unnikrishnan Scheme (50 per cent free seats and 50 per cent payment seats) as unconstitutional, are very significant. The court held that students from affluent families generally enjoyed the benefits of the free seats under the Unnikrishnan Scheme since they have better school education and the advantage of professional coaching facilities and therefore, secure higher rank in the common entrance test. It is a fact that majority of the backward students usually do not find a place in the merit list because of an unscientific entrance examination and the socio-economic disparities existing in society. The court, instead of making provisions to ensure that the benefit of free seats goes to the needy and backward students, declared the Unnikrishnan Scheme itself as unconstitutional and hence shut down even the limited opportunity of admissions available in self-financing professional colleges. Even though the court banned capitation fee and profiteering, it allowed private managements the freedom to admit students and decide a fee structure; such an unfettered freedom has in fact opened doors for unlimited free trade in education. The court’s advice to provide freeships and scholarships to poor students was never considered by private managements.

The decision of the LDF government in Kerala to enact a legislation to ensure reservations and provision of admissions for economically and socially backward sections in self financing institutions is no doubt a bold step and indeed the government and the minister deserve appreciation. The new legislation obviously is the accomplishment of the long pending demand of all the progressive and democratic organisations including the SFI.

MISCONCEPTION AND MISUSE OF THE COURT VERDICT

The court, while declaring the Unnikrishnan Scheme as unconstitutional, had opined that there should be no profiteering and collection of capitation fees. The court’s direction to impose uniform and reasonable fee structure in all the seats was misinterpreted by managements to collect exorbitant fee and propagate it as their right. The court allowed the state to frame regulatory measures in order to ensure educational standards especially in the matter of admissions to professional institutions and maintaining excellence. The private managements prepared fake merit lists with their own definition of merit and admitted students on the basis of the amount of fee paid, and hence violated the court verdict. The Congress-led UDF government in Kerala extended tacit support to private managements in this regard. If the UDF leaders, who shed crocodile tears, were really against the misuse of the court verdict, they could have compelled the private managements to ensure 50 per cent free seats. The UDF government, yielding before the student’s agitation, was compelled to enact the Kerala Self-financing Colleges Act. While enacting the law the government made many provisions for self-financing institutions by allowing them to hold separate entrance test and collect capitation fee. With this the UDF government in fact destroyed even the limited possibility of control over private institutions.

PROVISIONS TO ENSURE SOCIAL JUSTICE

The proposed legislation of the LDF government is aimed at ensuring merit and social justice in higher education. Several strict provisions in the Bill are capable of resolving the chaos and confusion prevailing in the professional education sector. According to the Bill, 85 per cent of the total seats must be filled on the basis of a single window system according to the merit list prepared by the commissioner of entrance examinations. 50 per cent of the total seats are reserved for socially and economically backward classes and freeships would be given to all students who come under the reservation category. 10 per cent of the total seats are earmarked for the SC/STs, 25 per cent for the socially and educationally backward classes, 3 per cent for physically challenged and 12 per cent for economically backward sections among other communities who do not come under the first two categories. The last two categories of reservations will be given on the basis of discussions and consultation with private managements. A total of 15 per cent of the seats come under NRI quota while the rest 35 per cent come under the general category. If seats under reservation category or the NRI seats are not filled up with concerned students, the vacant seats will be earmarked for the general category. 

The additional amount collected from NRI students will strictly be used to give freeships to students in the reservation seats. Even though 15 per cent seats are already reserved for NRIs and high fee is collected, private managements are presently not giving any freeships to the needy students. The Bill seeks to ensure complete fee wavier to SC/ST students and waiver of government college fee for other students taking admission under the reserved category. The additional amount collected from the NRIs will be used to ensure this. The basic principle behind such legislation is the concept that such students with merit should not be denied opportunity in higher education because of his/her economic condition.

In order to supervise and guide the entire process of admission of students in the unaided professional colleges with a view to ensure that the process is fair, transparent, merit-based and non-exploitative, the government is seeking to constitute an Admission Supervisory Committee with six members with a retired judge of the Supreme Court or High Court as chairperson. Similar committee will be formed to regulate fee structure. The Fee Regulatory Committee while deciding on the fee structure will have to consider the obligation on part of all unaided professional colleges to provide freeships to students admitted under reserved category, the location of the unaided professional college, the nature of the professional course, the available infrastructure, the expenditure on administration and maintenance, a reasonable surplus required for the growth and development of the college and the additional expenses over and above the excess funds generated from Non-Resident Indians and funds required for providing freeships to the students in the reservation category.

Strict provisions are proposed to ban capitation fee also. Admission of students in all professional colleges shall be made through Common Entrance Test conducted by the state agency followed by centralised counselling through a single window system. If private managements are not allowed to hold separate entrance test, collection of capitation fee can effectively be regulated. The chief motive behind the private management’s argument to hold separate entrance test for at least 50 per cent seats is nothing but to collect capitation fee. If it is allowed merit will be a causality and criterion for admissions will be replaced with money power.

MINORITY RIGHTS MISUSED

During the course of discussions on the proposed legislation the private managements in the state realised that challenging the strict provisions incorporated in the legislation is a difficult task and they proposed to reinstate the Unnikrishnan scheme so that the provision for 50 per cent free seats can be ensured. But the government was warned about the dubious record of private managements and of the possible trap behind such assurances. The private managements in Kerala were allowed to establish self-financing colleges with a precondition to ensure 50 per cent free seats, stipulated in the Unnikrishnan scheme. But after the Pai case verdict, they simply forgot about the assurance of social commitment and chose to collect exorbitant fee in all the seats. 

While enacting the Kerala Self Financing Act during the UDF regime, the same private managements compelled the government to make provisions to hold their own separate Entrance Test for the seats under the management quota as a precondition to give the rest 50 per cent as free seats. But when the Bill was passed, the managements approached the Court and managed to get an interim order to make the provision of free seats illegal. Using the provision to hold separate Entrance Test in the Act, the private managements conducted separate tests. Thus, the previous Act became a legislation to merely protect the vested interests of the private managements. The unholy alliance of the UDF government with the private managements created chaos and confusion in the arena of professional education in Kerala. Even now the managements tried to ensure certain provisions in their favor in the proposed legislation. But the LDF government, as expected, was firm on its policy to bring out a legislation with strict provisions to regulate fees and admissions in private self-financing institutions.

Some of the private managements are trying to escape from the control of the legislation by wearing the minority mask. The 93rd constitution amendment ensures reservations in private educational institution and excludes minority institutions that come under Article 30 (1) of the Constitution. Many of the managements have approached the National Minority Education Commission and some of them have managed to obtain minority status. These managements do not serve the minority community and no percentage of seats are reserved for the backward sections of the minority community. These managements are only keen to conduct their own separate entrance test so that they can prepare fake lists on the basis of the willingness to pay rather than merit. In the Ahmedabad St Xaviers College case the court while explaining the rationale behind Article 30, observed, “The idea of giving some special rights to the minorities is not to have a kind of a privileged or pampered section of the population but to give to the minorities a sense of security and a feeling of confidence. Special rights for minorities were designed not to create inequality. Their real effect was to bring about equality by ensuring the preservation of the minority institutions and by guaranteeing to the minorities autonomy in the matter of the administration of these institutions. The differential treatment for the minorities by giving them special rights is intended to bring about an equilibrium, so that the ideal of equality may not be reduced to a mere abstract idea but should become a living reality and result in true, genuine equality, an equality not merely in theory but also in fact.” And the same principle of ensuring equality was reiterated in the Pai case judgment also. But the National Minority Education Commission has not considered any of these aspects. Rather they have merely considered the minority label of the concerned institutions. It is clear that minority status is being used as a mask to carry on the free trade in education. Education institutions that pursue blatant profiteering shouldn’t be given minority status. 

In Kerala around 80 per cent of the educational institutions are run by the minority community. In all these institutions admissions are given on the basis of money power rather than the community of the applicant. If all such institutions are accorded minority status, the very purpose of the legislation and even the true interest of the minorities would not be protected. Considering all these factors, the new legislation also contains certain stipulations regarding the minority institutions. The legislation stipulates that in a minority education institution, at least 50 per cent of the seats should be reserved for the concerned minority community and there must be a provision for government college fee in the 50 per cent seats. Students in the community reservation seats must be admitted on merit basis. This will protect true and genuine minority interest. Some sections of the media are still trying to argue that minority rights are equivalent to the right to establish private institutions by members belonging to the minority community. It should be understood that the spirit behind minority protection enshrined in the Constitution under Article 30 is aimed at the concerned community and not the affluent sections in the community.

The new Bill is a result of the agitations of the entire academic community and especially the student community over the last several years. No doubt the profit mongering managements in Kerala will again try to escape from the grip of the law by using the favorable attitude of the courts and also by getting either deemed university status or misusing provisions for the minorities. However, since the law is aimed to protect the interests of the backward sections, the government can take necessary steps to include the legislation in the 9th Schedule of the Constitution. Any attempt to sabotage the law by vested interests must be resisted and the academic community and the society as a whole must keep vigil to protect the law.