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Professional education and the S.C.

By Rajeev Dhavan

The Constitution Bench judgment in the Islamic Academy case creates a potentially enormous quota without working out the economics of its implementation.

THE SUPREME Court judgments on professional education have moved from `half-baked socialism' to `half-baked capitalism'. The ruling of the Constitution Bench in the Islamic Academy case (2003) once again portends problems. Writing more between the lines has added new confusions — both in principle and over detail.

Professional and technical education is the new growth sector in Indian education — crucial to the nation and for the young. Enormous pressures for admissions triggered corruption in the past. Seats were bought and sold under the guise of `capitation' fee and `number 2' money under the table. Many States enacted laws against capitation fee. Government control was equally feared. Ministers and bureaucrats made money. It would have been simpler to let the University Grants Commission (UGC), the All India Council for Technical Education (AICTE) and other supervisory bodies discipline bogus institutions and procedures.

But the Supreme Court was in an innovative mood. In the Unnikrishnan case (1993), Justice Jeevan Reddy evolved a scheme — ostensibly to help the poorer students. All the seats were virtually nationalised. Fifty per cent of the seats were fixed at a lesser fee (free seats) and 50 per cent for a higher fee (payment seats). Fees were determined by some arbitrary method without balancing any budgets. The `free' seats were further subsidised. Any losses would be offset from fees collected from non-resident Indians (NRIs, including foreigners) by up to 15 per cent. Minority institutions suffered a similar fate though they were permitted their own split quota.

This was `half-baked' socialism. . Woe betide a scheme that solely depends on financial solvency by fleecing NRI students. There was chaos. Richer meritorious students got the `free' (subsidised) seats. Poor students could not afford the (expensive) `payment seats'. Seats went waste. Colleges, especially those `unaided by the Government', suffered varying degrees of financial insolvency.

The Unnikrishnan disaster was sought to be remedied by Justice B.N. Kirpal's majority judgment in the 11-judge TMA Pai case (2002). What emerged was incomplete, baked-half capitalism. Justice Kirpal's underlying philosophy was clear. Education required a partnership between the state and private institutions. Private institutions had a fundamental right to impart education, subject to reasonable restrictions. But the new architectural plan for education was as complex as what emerged after the Unnikrishnan case. Unaided institutions had maximum autonomy in the matter of devising tests based on merit, making admissions on rational criteria and fixing fees on the basis of balanced budgets which covered revenue costs plus development fees but no profiteering; and, certainly not capitation and corruption. Aided colleges would come under greater Government control — and give up a percentage of seats for the Government's reservation programme which in most States meant at least 50 per cent — presumably on lower fees. Government colleges could maximise their quotas. Merit was to be followed within quotas. This overall object to liberate educational institutions (especially the unaided ones) from excessive control was soon to crumble.

If this was the new mixed economy in education, where was the social justice element? Clearly, only the rich could afford the `revenue-based' seats in unaided institutions. Under Justice Kirpal's plan, social justice for the needy students would come from Government colleges and aided institutions, which would follow the reservation programme.

But sprawling judgments invariably contain slip-ups. Justice Kirpal's judgment was no exception. In one or two seemingly throwaway sentences, Justice Kirpal suggested that even unaided institutions would have to set aside a `Government' quota for local needs. He visualised this as a `small percentage' in one place and a `certain' percentage in another. This was a mistake. After the latest five-judge Bench verdict, can `local' needs mean anything — even beyond 50 per cent? `Quotas' do not grow in the air. If a quota was to breed, who would foot the bill? Would the Government pay commercial rates for its quota? Would the institution provide scholarships? Would the fees for this Government quota be subsidised as intended by many States? If there was to be a subsidised quota in aided and unaided colleges, are we not back to the `half-baked' socialist scheme of Unnikrishnan? Or is this the new `half-baked' capitalism?

The five-judge Bench in the Islamic Academy case was supposed to interpret the 11-judge Bench judgment in the TMA Pai case. But Chief Justice V.N. Khare's judgment in the case charts a trajectory of its own whilst ignoring the basic approach, text and philosophy of the TMA Pai case.

The critical issue in all this is the Government quota. The Government wants this quota for political and patronage reasons. If unaided institutions were also to have Government quotas (possibly up to 50 per cent), does it not amount to re-introducing Unnikrishnan? To the politics of admissions, we can add the economics of fees. Who would pay for this quota? Would the fees for 100 per cent of the seats (quota and non-quota) be calculated so that the non-quota students would subsidise students under the quota system? But this would be wrong — since Justice Kirpal pointedly declared that the Unnikrishnan case scheme was faulty because it required one student to subsidise another!

Under Justice Khare's judgment, the quota could be large even if Justice Kirpal envisaged a `small percentage'. The new judgment creates a potentially enormous quota without working out the economics of its implementation. Would the colleges be expected to provide scholarships if the Government did not? Would there be a lesser fee for quota students? Could the local needs of quota be above 50 per cent? With nothing worked out, and threatening possibilities in the 11-judge Bench remaining unclarified, Justice Khare's judgment further half bakes what was already unclear. The intended liberation of unaided institutions from Government quotas was nipped in the bud. These unaided institutions were once again partly nationalised to carry an onerously ambiguous burden. The Unnikrishan case verdict was overruled in the TMA Pai case but restored in the Islamic Academy case through the backdoor.

The broad approach of Justice Kirpal's judgment further branched into a seemingly wrong direction. The 11-judge Bench specifically gave unaided institutions the right to devise their own entrance tests and select students on the basis of merit and rational criteria to protect their unique character — even more so for minority institutions. Students seeking admission were not expected to play roulette but decide which institutions they wanted to join. Aided and Government institutions could have a common entrance test (CET) only if the Government so desired.

Now, the latest judgment changes that. Now unaided private institutions will either have a joint CET of their own or join the Government's CET. The private CET will be under a committee's control from beginning to end. Are such magnum tests a good idea? If each State were to hold its own test to also cater to massive Government quotas, unaided institutions will be sucked back into the old regulatory regimes. The TMA Pai case 11-judge Bench made it clear that transparency, merit and rationality alone would govern admissions. To deprive institutions of their right to devise tests and admissions except collectively could not have been done by a five-judge Bench interpreting a 11-judge ruling by devising new prescriptions.

Indubitably there should be no racketeering and profiteering in education. `Fees' should be subject to supervision by an independent expert committee. This was specifically intended by the 11-judge Bench and finds a place in Justice Khare's judgment. Mechanism must exist to ensure that even private college admissions are done fairly. But the new control system in the Islamic Academy case goes beyond the 11-judge Bench verdict; and over-reaches it.

A new 11-judge Bench needs to clear the chaos — especially with regard to minority institutions to which the Constitution affords a special protection but which the latest judgment of 2002-03 only half protects.

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