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Vanishing equity in higher education

M. Anandakrishnan

If the Supreme Court judgment on abolition of quota in private unaided colleges comes into force next year, many deserving socially backward students will be deprived of access to higher education.

FOR OVER a decade, there has been growing concern that opportunities for higher education to the weaker sections of society are getting rapidly eroded. The persistence of inequities is manifest in local and regional disparities of access, gender discrimination, non-affordable fee structures, confusing eligibility requirements, bewildering admission procedures, reduced government support, unabashed commercial practices, and lack of socially sensitive government policies on higher education. More opportunities are available to the urban population and those with higher economic status.

Three years ago, considerable hope was placed on the Supreme Court judgment in the T.M.A. Pai Foundation versus State of Karnataka case, Pai Foundation case for short. The decision of the 11-member Bench (October 30, 2002) raised more questions than it answered. Flooded with writ petitions, a five-member Constitution Bench sat to interpret that verdict, and gave its opinion on August 14, 2003 ("Islamic Academy" case).

It was clear from the events that followed the Islamic Academy judgment that some of the main questions still remained unanswered. A few of them as also some aspects of the clarification were considered by a seven-member Bench, which delivered its verdict on August 12, 2005. It is this judgment on unaided private colleges that has pushed the equity concerns to a new high.

The task of the Bench, as spelt out by it, was "not to pronounce our own independent opinion on the several issues which arose for consideration in Pai Foundation ... [but] to cull out the ratio decidendi of Pai Foundation and to examine if the explanation or clarification given in Islamic Academy runs counter to Pai Foundation and if so, to what extent. If we find anything said or held in Islamic Academy in conflict with Pai Foundation, we shall say so as being a departure from the law laid down by [the Court in] Pai Foundation and on the principle of binding efficacy of precedents, over-rule to that extent the opinion of the Constitution Bench in Islamic Academy." The Bench thus limited its decisions to unaided professional educational institutions.

In the Pai Foundation case, the Court, in para 68 of the judgment, states that it would be unfair to apply the same rules and regulations for admission to both aided and unaided professional institutions. While the unaided professional institutions are entitled to autonomy in administration, they cannot discard the principle of merit.

"It would, therefore, be permissible for the university or the Government, at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while, at the same time, giving the management sufficient discretion in admitting students. This can be done through various methods."

The Court goes on to say that a certain percentage of the seats can be reserved for admission by the management out of those students who have passed the common entrance test held by itself or by the State/university and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counselling by the State agency. "This will incidentally take care of poorer and backward sections of the society."

In relation to this opinion, the latest decision states: "As per our understanding, neither in the judgment of Pai Foundation nor in the Constitution Bench decision in Kerala Education Bill, which was approved by Pai Foundation, there is anything which would allow the State to regulate or control admissions in the unaided professional educational institutions so as to compel them to give up a share of the available seats to the candidates chosen by the State ... This would amount to nationalization of seats which has been specifically disapproved in Pai Foundation. Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions. Such appropriation of seats can also not be held to be a regulatory measure in the interest of minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution."

Reservation of seats for the Scheduled Castes, the Scheduled Tribes or Other Backward Classes, in management quota or in Government quota, did not come up for consideration either in the Pai Foundation or in the Islamic Academy case. The latest judgment has this to say about `seat-sharing' with the Government discussed in para 68: "A reading of the majority judgment in Pai Foundation in its entirety supports the conclusion that while the first part of para 68 is law laid down by the majority, the second part [relating to seat-sharing] is only by way of illustration, tantamounting to just a suggestion or observation, as to how the State may devise a possible mechanism so as to take care of poor and backward sections of the society. The second part of para 68 cannot be read as law laid down by the Bench."

In the last decade, the number of seats available in aided institutions has been only a small proportion of the total, since most of the growth in higher education, especially in technical education, has been in the unaided segment. For instance, this year in Tamil Nadu the number of seats available in government and aided engineering colleges is about 4800 compared with the total of about 78000, of which about 40500 were available to the government for allocation according to the reservation policy. If the latest judgment comes into force next year, deserving students in the reservation category will have to contend with a share of about 4800 seats, a tiny portion of the large available educational capacity in the State.

The judgment also states: "The number of seats available in government and government-aided colleges is very small, compared to the number of persons seeking admission to the medical and engineering colleges ... This void in the field of medical and technical education has been filled by institutions that are established in different places with the aid of donations and the active part taken by public-minded individuals. The object ... has thus been to provide technical or professional education to the deserving candidates, and is not necessarily a commercial venture." The assumption that unaided professional institutions are run as a charity or with non-commercial motives is contestable. The capitation fee charged by them is so hefty that the poor and the backward would never be able to afford it.

Transparency in admission has been emphasised in many parts of the judgment. Here again the reality is that capitation fee is the main criterion. While many private professional institutions that have been conferred the status of deemed universities in recent years enjoy freedom from governmental interference, most of them have disregarded the principles of transparency and non-commercialisation. This provoked the UGC to write to them saying they were not following guidelines with regard to admissions, fees, introduction of new courses, and intake capacity of students and that several of the private deemed institutions, especially in the professional disciplines, had misused their university status and acted in a manner detrimental to the interests of students and lowering the reputation of the Indian university degrees.

Various options

In the light of the latest judgment, several options to preserve social equity can be explored. The governments can freeze the number of new unaided professional institutions and find ways of starting government-run, aided or joint sector institutions. They can bring in legislation whereby all individual- and family-controlled charities are declared as commercial establishments (as is done in the U.S.) and only charities with broad-based membership are recognised as non-profit organisations.

The judgment has correctly advised that "It is for the Central Government, or for the State Governments, in the absence of a Central legislation, to come out with a detailed well thought out legislation on the subject ... The Committees regulating admission procedure and fee structure shall continue to exist, but only as a temporary measure and an inevitable passing phase until the Central Government or the State Governments are able to devise a suitable mechanism and appoint competent authority in consonance with the observations made herein above."

Going by experience, it appears doubtful if governments would be willing to undertake any of these measures. It is an open secret that the professional institutions engaged in undesirable commercial practices are owned or controlled by powerful persons. Many are major donors to political campaigns.Experience shows that the two committees formed for fee fixation and admission may continue indefinitely and often with no real possibility of implementing their mandates.

(The writer is Chairman, Madras Institute of Development Studies, Chennai.)

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