The Hindu : Opinion / Leader Page Articles : Confusion and chaos in professional education

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Friday, Apr 28, 2006

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Confusion and chaos in professional education

T.R. Andhyarujina

Between cynical politicians and contradictory judgments of the highest court, students, parents, educationists, and institutions are perplexed, awaiting the next move by the government or the court.

UNION MINISTER for Human Resource Development Arjun Singh has justified his proposal of a 27 per cent quota for OBCs (Other Backward Classes) in admissions to Indian Institutes of Management, Indian Institutes of Technology, and Central Universities as a "follow-up action" and logical conclusion of the Constitution 93rd Amendment Act, 2006, which came into force on January 20, 2006. If the proposal is implemented, IIMs, IITs, NITs, and 113 medical colleges run by the Central Government will have 49.5 per cent reservation in admissions — the existing 22.5 per cent quota for Scheduled Castes and Scheduled Tribes, and 27 per cent for OBCs.

How correct is the Minister's statement that this decision is only a follow-up of the 93rd Amendment? The Amendment was neither made nor required to provide reservation in Centrally owned or aided institutions. It was enacted by Parliament for a different purpose: to overcome the August 12, 2005, decision of the Supreme Court in the Inamdar case. The Court had struck down existing reservation by State Governments in private, unaided medical and engineering institutions. It held that the right to run educational institutions was a "fundamental right to occupation" protected by Article 19 (1) (g) of the Constitution. The state, therefore, did not have the power to impose reservation in private, unaided educational institutions.

Some States, particularly Karnataka, Tamil Nadu, and Kerala, had reserved seats in private, unaided medical and engineering colleges for socially and educationally backward classes for many years, giving them opportunities to higher professional education they would have otherwise had no access to. The Supreme Court decision was a setback for reservation in such States. Parliament, therefore, inserted a new sub article, 15(5), in the Constitution with almost unanimous approval to enable the state to reserve seats for any socially and educationally backward classes of citizens (which could include OBCs) or for the Scheduled Castes and the Scheduled Tribes in private educational institutions, which, by the terms of this amendment, could no longer claim a fundamental right to carry on an occupation under Article 19 (1)(g) of the Constitution. This is clear from the Sub-Article 15 (5) of the Constitution which states:

"Nothing in this article or in sub-clause (g) of Clause (1) of Article 19 shall prevent the state from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes insofar as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the state, other than the minority educational institutions referred to in clause (1) of Article 30."

Thus this new amendment was not for enabling reservation of seats for Scheduled Castes, Scheduled Tribes or OBCs in centrally administered institutions such as the IIMs and the IITs, but only for doing so in private unaided institutions. The Central Government already had the power to provide reservation in institutions controlled by the state. The Constitution, by a specific amendment in 1951, introduced sub article 15(4) enabling the state to make special provisions for the advancement of any socially and educationally backward classes of citizens or for Scheduled Castes and Scheduled Tribes. Article 15(4) says:

"Nothing in this Article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes."

Despite this, the Central Government did not think of reserving seats for OBCs in higher education institutions funded by it until April 5, 2006, when Mr. Arjun Singh disingenuously stated that it was the Constitution Amendment of January 2006 that required follow-up action. Of course no political party has thought it expedient to disagree with this move because of the political vote bank involved. It does not occur to them that centres of excellence such as IIMs and IITs, which have received world recognition, should not be tinkered with or that there can be affirmative action other than quotas to equalise disadvantages of the backward classes in such institutions.

This will be a summer of discontent, chaos, and confusion for students and professional institutions. Apart from the Central legislation now being considered for reservation for OBCs in centrally administered educational institutions, States like Karnataka, which were deprived of their quota in unaided private professional institutions because of the Supreme Court judgment in the Inamdar case, will now enact laws to restore reservation for SCs, STs, and OBCs citing the 93rd Amendment. This will inevitably lead to further challenges in courts. Indeed retired Chief Justice R.C. Lahoti who wrote the Inamdar judgment has made bold to say that the court may strike down the amendment itself.

The Inamdar judgment was, to say the least, controversial. Consider how it came about. In 1993, the Supreme Court in the Unnikrishnan case evolved a judicial scheme for admission of students in professional medical and engineering colleges for "payment," and "free seats" to control capitation fees. After some initial problems, the scheme settled down and worked satisfactory. But on October 31, 2002, in the TMA Pai case, an 11-judge Bench of the Supreme Court declared the scheme "unconstitutional" as it violated the fundamental right of private, unaided professional institutions to carry on an occupation. The judges were cautious and did not frown on reservation for backward classes. Indeed, in one significant part of the majority judgment widely believed to be a compromise to achieve consensus among the judges, it suggested that reservation could be made "for poorer and backward sections of the society" considering the local needs.

On August 14, 2003, in the Islamic Academy case, a bench of five judges headed by Chief Justice V.N. Khare held that reservation was still possible even after the TMA Pai judgment. But on August 12, 2005 in the Inamdar case, a seven-judge bench overruled the Islamic Academy judgment and held that no reservation could be made in private, unaided professional institutions as that would violate the fundamental right of educational institutions to carry on an occupation. This put an end to reservation for socially and educationally backward classes in private educational institutions, which had been implemented for many years in some States. No serious consideration was given to the fact that there could be no absolute right to carry on an occupation by private unaided institutions without any social obligation and to the fact that they were in some degree dependent on state help or recognition and there could be reasonable restrictions on their right to carry on an occupation. This situation led to the 93rd Amendment to the Constitution to restore reservation in private unaided institutions. It is quite another matter that advantage is now being taken of this amendment to push in Mandalisation.

Where are we now in this vital field of education? Are we to be bogged down by acrimonious controversies dividing the nation, and baffling litigation? Neither the Government nor the courts have covered themselves with credit. Between cynical politicians of all parties and contradictory judgments of the highest court, students, parents, educationists, and institutions are perplexed, awaiting the next move by the Government or the Court. We are like the hollow men of T.S. Eliot — "Shape without form, shade without colour, paralyzed force, gesture without animation."

(The writer is a Senior Advocate and former Solicitor-General of India.)

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