THE bold provisions of the law introduced by the Left Democratic Front government in Kerala, meant to curb profiteering by private professional college managements and to ensure transparency in student admissions, were struck down on January 4 by a Division Bench of the Kerala High Court.
Among other things, the Kerala Professional Colleges (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-exploitative Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006, adopted by the State Assembly in July 2006, intended to make admissions to such colleges merit-based, through a single-window scheme of entrance examinations, and to allow a government-appointed committee to determine the fee structure. It also provided for the reservation of seats in all self-financing professional colleges for the socially and educationally backward classesand for the Scheduled Castes (S.Cs) and the Scheduled Tribes (S.Ts). Moreover, for the first time in India, a State law attempted to define the norms for determining a "minority educational institution".
Self-financing professional colleges have mushroomed in Kerala since 2001, following the implementation of a liberal policy by the previous (United Democratic Front) government, which allowed large-scale private investment in professional education. The majority of such colleges were established by persons or organisations belonging to the two prominent minority communities in the State: Christians and Muslims.
In the six years of their existence, many of these colleges had reneged on promises made to the government and made a roaring business out of admissions. The stringent provisions of the Actwere in a way a sharp reaction to such profiteering (Frontline July 15-28, 2006).
The Division Bench, comprising Chief Justice V.K. Bali and Justice P.R. Raman, has now struck down these provisions, terming them unconstitutional. It said that since the Constitution allowed as a fundamental right unaided minority and non-minority managements to run educational institutions and since the new law already provided for transparent, fair and non-exploitative admission procedures, the State was not justified in framing further provisions, arrogating to itself the complete right to make admissions and decide the procedures for it. The court also said that the provisions fixing the factors to be considered while determining the fees and for offering different fee structures and freeships to 75 per cent of the students were an infringement of the rights of the managements as guaranteed by the Constitution and the Supreme Court.
If the new law had retained all its original provisions, self-financing colleges that failed to satisfy the new conditions for obtaining minority status would have had to earmark 10 per cent of the total number of seats for S.C. and S.T. candidates and 25 per cent for other socially and educationally backward classes. In addition, the law would have required them to "reach a consensus based on mutual agreement with the government" to provide 3 per cent of the seats for physically challenged persons and 12 per cent for other (economically weaker) sections of society, not covered above, on a "merit-cum-means basis". They would have also been required to set apart 18 per cent of the seats for students from the general merit list and 2 per cent for students with outstanding records in sports and the field of culture. Of the remaining 30 per cent of the seats, the law would have allowed both non-minority and minority unaided institutions to fill up to 15 per cent of the total number of seats with candidates from the non-resident Indian category and up to 15 per cent from "privilege seats", or "management quota" of seats that also should be filled up from the common list prepared by the government "on the basis of inter se merit from the applications submitted by the management". The Bench said the total reservation, be it in education or employment, could not go beyond 50 per cent and, as such, fixing of quotas for various sections up to 82 per cent of the total number of seats was "illegal and unconstitutional". However, it said, the government could issue an ordinance or take other measures under Article 15(5) to provide quotas.
The court also struck down the provision, which had prescribed certain conditions for a college to be accorded recognition and conferred the status of an "unaided minority professional college or institution". The conditions included, first, that the population of the "linguistic or religious" minority that runs the professional college should be less than 50 per cent of the total population of the State.
Second, the number of professional colleges or institutions run by the minority community should be proportionately lower than the number of professional colleges or institutions run by the non-minority community in the State. Three, the number of students belonging to minority community in all professional colleges should be lower than the number of students belonging to the non-minority communityin all professional colleges in the State. The court declared these conditions as violative of the rights of linguistic and religious minorities as envisaged under Article 30(1) of the Constitution.R. Krishnakumar