The Hindu : National : 13-Judge Bench should address the issue, say experts

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Friday, Aug 06, 2004

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National

13-Judge Bench should address the issue, say experts

By J. Venkatesan

NEW DELHI, AUG. 5. The process of admissions to various professional courses for 2004-2005 across the country is in total disarray and it is time that a 13-Judge Bench of the Supreme Court took up the issue to clear the mess created due to different interpretations of the judgments in the T.M.A. Pai Foundation and Islamic Academy Education cases, feel experts in the field.

Though the situation is the same in almost all the States, the confusion is felt more in the southern States than in the north since the bulk of the self-financing colleges are situated in the four southern States and the demand from students is high. As a result, the admission process has not been completed even during the first week of August when, normally, the classes begin. In the T.M.A. Pai case, a 11-Judge Bench of the Supreme Court held that unaided institutions would have the maximum autonomy not only in the admission of students but also in determining their own fee structure. A five-Judge Bench, giving clarifications, stated that the percentage of the quota for students to be admitted by the managements and the Government in the minority or non-minority unaided professional colleges shall be fixed on the basis of "their needs."

While the State Governments interpreted this phrase as "local needs" or the "needs of the Government," the institutions have interpreted the phrase as referring to the need of the minority or non-minority unaided professional institutions.

Confusion

Prof. R. Sethuraman, Vice-Chancellor of Shanmugha Arts, Science, Technology and Research Academy, a deemed university in Thanjavur, Tamil Nadu, feels that different interpretations have paved the way for a single window system at the State level even for filling the management quota seats and for various enactments by the States to fix the quota. Never before in judicial history has a clarification given by a five-Judge Bench on an 11-Judge Bench judgment caused such confusion in admissions to medical and engineering courses. Prof. Sethuraman says that in the era of globalisation and the World Trade Organisation, the customer has a choice; the students and parents are fully aware of the facilities, opportunities, faculty, etc., available in private institutions. Though the intervention of the judiciary has ensured equity in justice, the status of higher education needs a fresh look by a 13-Judge Bench.

The former Attorney General and senior Supreme Court advocate, K. Parasaran, says that the right to admit students is an essential facet of the right to administer and so long as admission to unaided educational institutions is made on a fair, transparent and merit-based manner, the Government cannot interfere with the admission process. But because of different interpretations, the States have brought unnecessary controls on the managements.

Awkward situation

As a result, a person who starts a college will not be able to admit his own son or daughter. Neither the T.M.A. Pai nor the Islamic Academy judgments contemplate such a situation, he says. Two different Benches of the Supreme Court have already referred to a larger Bench the issues arising out of the two judgments. Whether it is five, seven or 13, the Supreme Court should step in immediately to clarify in categorical terms the rights of unaided professional institutions in admitting students, says Mr. Parasaran.

The President of the All-India Medical and Engineering Colleges Association, T.D. Naidu, is of the view that there must be an All-India Common Entrance Test (AICET) for filling seats under the "management quota" in medical, engineering and other professional courses so that students will have a different choice in choosing the colleges for admission under the management quota.

He says that under the TMA Pai and the Islamic Academy Education judgments, unaided private educational institutions had absolute right and autonomy to hold a separate test and what is applicable to the State level should be extended to the national level also.

He wants the court to give the option to the colleges to choose either the All-India Engineering Entrance Examination or the AICET proposed by the association for admitting students under the management quota.

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