Opinion - News Analysis   

A balancing act for justice to all

M. A. Baby

The Kerala Professional Colleges Act (KPC Act), 2006, is neither pro-minority nor anti-minority; it is only pro-people.

THE WIDESPREAD debate on the Kerala Professional Colleges Act (KPC Act), 2006, is a measure of public concern for education in the State. Kerala is unique in this respect among Indian States. Such universal interest in educational issues is the result of the egalitarian ethos nourished during the past 200 years in this part of the country. Amartya Sen has traced the history of this laudable achievement to the contributions made by enlightened rulers of the pre-Independence era, Christian missionaries, Hindu renaissance movements, and left-wing politics in the State. The KPC Act is a humble attempt to carry forward the long tradition of promoting equity in education in Kerala.

The Act also aims at promoting excellence in professional education. A concern for excellence has become paramount in the emerging knowledge society. Economic progress today is dependant primarily upon progress in the accumulation and use of knowledge capital. A diffusion of such capital among the maximum number of people is the most effective means to ensure social justice in the distribution of economic opportunities and promote inclusive national development.

With such an understanding, the Left Democratic Front (LDF) promised, in its election manifesto, to ensure merit and social justice in unaided professional education. Fulfilling the promise was not easy. In the absence of comprehensive Central legislation, the State had to undertake the responsibility of framing the law to regulate unaided professional education. In doing this, the Government had to act within the framework of the directives laid down by the Supreme Court. The sky-high aspirations of the people who voted the LDF to power had also to be addressed. At the same time, the Government could not ignore the genuine problems of managements whose contributions to the expansion and modernisation of professional education cannot be ignored. However, the sharks in the educational waters needed to be weeded out.

The Government was compelled to perform a delicate balancing act, which would give maximum satisfaction to the people without causing undue hardships to the managements. It had to tune the entrepreneurship of the managements to the educational needs of the students. In doing this, it made use of the positive provisions in various Supreme Court judgments and the 93rd constitutional amendment to arrive at a compromise formula for promoting equity and excellence in unaided professional education.

The Act has, by and large, been welcomed by the people. A deliberate effort has been made in it to allocate the available seats among different sections of the people, so that no one is left out in the scramble for opportunities. The legislation has given effect to the 93rd constitutional amendment to give 35 per cent of the sanctioned seats to the traditionally deprived sections of society. The concerns of the physically challenged and the economically backward sections not covered under Scheduled Castes and Scheduled Tribes and Socially and Educationally Backward Classes have been addressed by setting apart 3 per cent and 12 per cent of the total seats for them. Since such reservation is not constitutionally mandated, it can be implemented only with the consent of the managements concerned. The Government has no doubts that the managements will cooperate. None of them has so far disagreed with the arrangement on this count.

The concept of excellence envisaged by the Act includes not only academic excellence, but excellence in sports and culture as well. Two per cent of the seats have been set apart for students who have made outstanding contributions in the fields of culture and sport. The demands of the managements have been conceded in 30 per cent of the seats — 15 per cent as privilege seats and 15 per cent as NRI seats. The rest is the open merit quota, which will be enriched by spillover from other categories. The crocodile tears shed over the fees fixed in NRI seats have no substance. The openings for NRIs are not confined to the NRI quota. They are as free as any other segment to claim the other 85 per cent of seats. The 15 per cent is the special quota reserved for them, of course with the rider that those who want to have the privilege shall provide for their less fortunate brethren at home or even abroad.

It is really strange that sections in the United Democratic Front (UDF) find fault with the provisions in the Act dealing with freeships and seat allotment to accommodate different sections of society. They allege that merit has been given the go-by despite the fact that 85 per cent of admissions are made on the basis of merit through the Common Entrance Test (CET) conducted by the State Commissioner for Entrance Examinations.

Freeships

Unfortunately, the critics are unable to appreciate merit beyond the confines of open merit. The concept of inter se merit to identify the meritorious among the socially, educationally, and economically backward sections of the people is anathema to this highbrow meritocracy. So is the concept of cross-subsidy of the poor by the rich. They attack the scheme of freeship in the Act saying the Supreme Court has opposed it, without understanding that the court was opposed to the Unnikrishnan Scheme because it resulted in the poor subsidising the rich. They have little respect for their leader Arjun Singh who wrote to Oommen Chandy, then Chief Minister of the State, urging him to implement the 93rd constitutional amendment that empowers the State governments to do everything for the educational advancement of the downtrodden, including (1) reservation of seats, (2) differential fee structure, and (3) a separate admission procedure.

It is true that some managements are crying wolf against the arrangement for providing freeships to 50 per cent of the students. As a matter of fact, it is the Government that provides freeships for the SCs and STs irrespective of any income limit and irrespective of their admission in the reservation (10 per cent) or merit quota. Forty per cent of the admitted students with annual incomes below Rs.250,000 will be selected for freeships on the basis of merit from the non-NRI, non-privilege, and non-SC/ST segments. It is only those who have not properly understood the provisions of the Act who argue that there are no freeships for students coming under the merit quota. In fact, all students in the open merit quota with annual family incomes below Rs.250,000 are likely to get freeships. The amount required for freeships for 40 per cent of the students will be contributed by 50 per cent of the students who constitute the comparatively richer segment in the student population. For them, it will be a two-tier fee structure, the maximum being realised from the NRI segment.

Most of the opposition to the Act comes from the traditional leadership of the minorities. When the Bill was first introduced in the Assembly, it was dubbed pro-minority. Now the Act is being accused of being anti-minority. The wheel has come full circle. The legislation is neither pro-minority nor anti-minority; it is only pro-people. The leadership on either side of the minority divide is opposing the Act on account of a certain communication gap. It has failed to grasp the implications of the evolving constitutional law on minority rights.

The full implications of the Supreme Court's judgment in TMA Pai Foundation versus State of Karnataka (2002) on minority rights are yet to be realised. The judgment has rightly classified minority rights as federal, secular, and equitable rights. Since TMA Pai, the concept of national minorities has given way to the concept of State minorities. A distinction has been drawn between the criteria for identification of minorities and minority educational institutions. The question whether an educational institution established and maintained by a religious or linguistic minority will automatically qualify for status as a minority institution has been left open by TMA Pai. At the same time, the basic principles for the award of minority status have been spelt out in no uncertain terms in the judgment.

Subsequent apex court judgments have reinforced the view taken in TMA Pai. Minority rights have been held to be a part and parcel of the rights to equality and secularism. They are protective rights and not absolute rights. Positive discrimination is justified when special protection is required to ensure equality between numerical minority and numerical majority. Special protection will amount to reverse discrimination when the minority has already achieved equality with the majority, proportionate to its demographic strength vis-à-vis non-minority.

In Bal Patil and Another v Union of India and Others (2005), the Supreme Court further clarified that statistical data produced to show that a community is numerically a minority cannot be the sole criteria for the award of minority status. The socio-economic position of the community is another important criterion. The higher up the socio-economic ladder, the lower the chances for conferring special protective cover of minority status. In P.A. Inamdar and Others v State of Maharashtra and Others (2005), a further classification in respect of minority rights has been made with reference to the stage of education. Education at the school level is culture-specific and location-specific. On the other hand, education beyond the graduate level has no special minority attribute. It is national wealth. What counts is merit and merit alone. Therefore uniform regulations can be made with a view to achieving excellence in educational institutions, irrespective of whether they are minority or non-minority institutions.

The UDF has been quite dismissive in its approach to minorities. On February 3, 2005, the UDF Government issued an order refusing minority status to eight institutions. The reasons assigned were the following: (1) the institutions applied for minority status only because they wanted to corner the management seats; (2) they had no commitment to the minorities they claimed to represent. The LDF acted with care and caution. The triple test in Section 8 of the Act is intended to ensure protection of the minority where such protection is required. It also ensures that protection is not extended to minorities that are already adequately protected so that there will be no reverse discrimination in the application of minority rights. Test one relates to the demographic status of the community. Those below 50 per cent are to be treated as minority communities. The second and third tests quantify the educational status of the minority to assess whether the community is educationally deprived enough vis-à-vis the non-minority community in the State to justify special protection. The proportionate representation of the minority community in the ownership of institutions of higher learning and opportunities available to the minority students for higher learning is statistically ascertained.

The test is fair, transparent, and objective. It is a test not to identify minorities, but only to identify unaided minority professional educational institutions to which special protection can be extended. If the minority has proportionately greater representation than the non-minority, additional protection will amount to reverse discrimination. Statistics is the key to understanding the minority issue. It is unfortunate that statistics has few takers among those who raise the bogey of minority rights.

The Government is fully aware of the complexity of the issues. It has been and is still open to debate and discussion. It is willing to accommodate the genuine concerns of all — students, parents, and managements.

At the same time, the Government is committed to the implementation of the Act, overcoming all attacks against it from whatever corner it might come. Nothing will prevent the LDF from redeeming its solemn promise to the people.

(The writer is Minister for Education and Culture in the Government of Kerala.)

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