The fleecing of students by self-financing professional colleges exploiting loopholes in the law and the government's inability to check it trigger violent protests in Kerala.R. KRISHNAKUMAR in Thiruvananthapuram
PETROL bombs, Stun Lac grenades, tear-gas shells and water cannons are becoming part of the July street scenes in Kerala as student organisations agitating against the four-year-old self-financing college phenomenon in the State try to disrupt the yearly professional college admission process conducted by the government and, now, separately, by the fee-hungry private college managements.
The new academic year saw, for the first time, 29 of the 50 self-financing engineering colleges joining hands to conduct a separate common entrance examination on July 1 using a convenient provision in a 2004 law formulated by the Congress-led United Democratic Front (UDF) government whose avowed policy is to encourage more private investment in the professional education sector.
The four-day agitation of Opposition student organisations that followed - first to try and disrupt the entrance examinations conducted by the private managements in 29 centres, and then to blockade the three venues of the centralised allotment process organised by the government - and the police response to it were unusually violent, provocative and destructive, paralysing normal life in the State and causing serious injury to students, police personnel and citizens and extensive damage to property.
July 4 was unusually disruptive, but the compromise solutions worked out the next day by the government and the Opposition leaders did little for the cause of the student organisations. The latter demanded that the private managements be allowed to charge only the moderate fee as applicable in government-run colleges in the 50 per cent merit quota seats in their institutions. Instead, the government agreed to fix its own moderate fee structure for the merit-quota seats in self-financing professional colleges run by three government agencies and in the seven colleges in the cooperative sector from the next academic year. It agreed to coerce the private managements to offer scholarships to (a minority of) merit quota students whose annual family income was less than Rs.2 lakhs. The agitation was withdrawn without any major immediate benefits for the students. The outcome could not be otherwise because, away from the public eye, the real battle was being fought in the Supreme Court and, from all indications, seemed to be tilting in favour of the private managements.
UNTIL 2000, the seats available in the few government-run engineering and medical colleges in Kerala were far too inadequate for the ever-rising demand for professional college seats in the State. Consequently, every year the State witnessed a steady flow of students and resources to mushrooming self-financing colleges in neighbouring Tamil Nadu and Karnataka. As soon as it came to power in 2001, the UDF opened the doors for large-scale private investment in the sector, claiming it as a measure to help hundreds of students to find the educational opportunities of their choice in the State itself. Leaders of the UDF said, at least in their policy declarations, that the principles of equity and social justice that had been the cornerstone of the State's education sector until then would continue to guide it in the new era of large-scale private investment too.
In what then became the main policy statement, the then Chief Minister A.K. Antony argued that the sanctioning of two self-financing professional colleges would be equivalent to the government establishing a college of its own. Antony said so because, according to him, 50 per cent of the seats in such institutions would be filled only from the government merit list prepared on the basis of a common entrance examination conducted by it and students gaining admission in these seats would be required to pay only the moderate fee in the government colleges.
However, just when the Antony government issued "essentiality certificates" to the managements of the first few of the self-financing professional colleges based on what the then Chief Minister said was an unwritten "understanding" with them that half the number of seats would be set apart for government merit-quota students came the 2002 Supreme Court ruling in the T.M.A. Pai Foundation case. The judgment redefined the rights of the minorities to establish and run educational institutions of their choice and declared "unconstitutional" the provision in the 1993 Unnikrishnan case judgment that forced students studying under the payment quota to subsidise the cost of education of those admitted in the merit quota.
Hence, when the Kerala government issued orders in December 2002 fixing norms for admission and payment of fees in unaided professional colleges according to its earlier "understanding" with the college managements, two unaided minority medical college managements sought to invoke the provisions of the new Supreme Court verdict in a petition filed in the Kerala High Court. A Division Bench of the High Court ruled that the government order was "arbitrary" and "illegal" and directed the government that the merit quota of seats could only be 25 per cent of the total number of seats in the two colleges. The court fixed the fee payable by students selected from the merit list at Rs.1.5 lakhs, based on the government's own submission regarding the likely expense that it incurs for a medical student's education in government colleges. In the 75 per cent management quota seats that year, the fee was reportedly over Rs.22 lakhs.
This was the first blow to the Antony government, which had assured the people that it would "ensure equity and social justice" while sanctioning self-financing colleges freely. Antony described it later as "nothing but a betrayal of trust" by the college managements, while the latter claimed they were never a party to such an "unwritten understanding" with the government. Facing allegations that certain forces within the government had colluded with the managements and prevented the government from making a strong case before the court, the Antony government filed a review petition. But the High Court ruled that if the State was to be given an equal number of seats in these colleges, the distinction between aided and unaided institutions would be "rendered nugatory". "The State must realise that after it had given the no-objection certificates to the two college managements, the decision of the apex court in the T.M.A. Pai case has brought about a sea change in the legal position. The State cannot shut its eyes to the hard realities in the post-T.M.A. Pai era," it said.
From then on, as the college managements began to make hay, the government pleaded helplessness. The government said nothing could be done until a new law was formulated to enforce its policy. But in the two years, when the UDF government was drafting the legislation, the Supreme Court revised its judgment in the T.M.A. Pai Foundation case. In 2003, in the Islamic Academy of Education case, a five-member Constitution Bench of the Supreme Court said, significantly, that government should not fix a rigid fee structure in private self-financing colleges and that the managements should be allowed sufficient discretion in admitting students. However, it reiterated that merit should be the criterion for admissions and warned against profiteering and the charging of capitation fees by such institutions.
The court suggested reservation of a certain percentage of the seats "for admission by the management" for those students who have passed the common entrance test held by "itself or by the State". The rest of the seats may be filled up on the basis of counselling by a State agency. The court said that the percentage of seats for this purpose was to be prescribed by the government "according to local needs" and that "different percentages could be fixed for minority unaided and non-minority unaided and professional colleges".
Significantly, the court said that each unaided private college would be entitled to "its own fee structure", keeping in mind the need to generate funds to run the institution and to provide facilities necessary to the students. They must be able to generate surplus funds "which must be used for the betterment and growth of that educational institution", the court added. It suggested that the States set up two committees - one to decide whether the fee proposed by an institute "is justified" and to propose the fee that could be collected, and the other to oversee the admission tests and procedures and ensure that they are administered in a fair and transparent manner.
The court said that the fee fixed by the committee should be binding for a period of three years, at the end of which the institution could seek a revision. Any amount charged over and above the fee fixed thus was to be considered as "capitation fee", and would lead to loss of recognition and affiliation to the university. Following the apex court verdict in August 2003, even as it was formulating a law, the UDF government announced the appointment of the two committees, both headed by former Supreme Court Justice K.T. Thomas. But, after nearly five months of inquiry and deliberations, when the committee arrived at a "uniform" fee structure for all students, irrespective of whether they gained admission in the merit or management quota, it drew much criticism.
The committee suggested that any student seeking admission in a medical, engineering or dental college or for an MCA degree, for example, would have to pay Rs.1,13,000, Rs.38,000, Rs.76,000 and Rs.38,000 respectively as annual fees. Until the year before, merit quota students of private, self-financing professional colleges were paying only the moderate fee applicable for students in government professional colleges (Rs.11,500 in medical colleges and Rs.6,600 in engineering colleges, for example). The committee's rationale for recommending the fee hike in the merit stream was that the apex court had expressly prohibited the realisation of two types of fees from students in the same course and that economically weaker students could utilise "easily available" bank loans.
The K.T. Thomas Committee's recommendations meant that from academic year 2004, students taking the merit seats (50 per cent) in each private self-financing institution had to pay the same (higher) fee as that for students in the management seats; admissions to the management seats (50 per cent) in the private unaided colleges could be based on a separate common entrance test conducted by the association of college managements if they so decided collectively (and not on the basis of the common test conducted by the government as demanded by students' unions); although the college managements would get a total fee revenue that was higher than what they could expect under the government's stated policy (because the merit-quota students now had to pay more), it would still not match their expectations; and the government was in a spot because, contrary to its policy objective, merit seat students were being asked to pay as much as those in the management quota.
THE setback eventually forced the UDF government to formulate a piece of compromise legislation, the Kerala Self Financing Professional Colleges (Prohibition of Capitation Fees and Procedure for Admission and Fixation of Fees) Act, 2004. Contrary to what the K.T. Thomas Committee suggested, the new law said that the fee for candidates admitted in the 50 per cent government merit quota seats "shall be the same as the fee prevailing for the corresponding course in the State government colleges" and the fee to be collected from the candidates admitted in the management quota "shall be determined by the management taking into consideration the inevitable expenses for running the institution".
As the Supreme Court suggested, the Act said that the management quota seats were to be filled "either from the list prepared on the basis of the Common Entrance Examination conducted by the Commissioner for Entrance Examinations or from the list prepared on the basis of the common entrance test conducted by a consortium of a particular type in the State". But, significantly, unlike the apex court's direction, the Act had no provision for the constitution of a body to monitor the fee structure or admission process in the private self-financing professional colleges. The Act gave the managements the option to earmark not more than 15 per cent of the seats in the management quota to dependents of non-resident Indians (NRIs) and to admit such students on the basis of the marks they obtained in their qualifying examinations.
In effect, through the new Act passed by the Assembly, the State government was expressing its willingness to give the private college managements a free rein, if only they would allow it the mercy of agreeing to admit students from the government merit quota in 50 per cent of the seats and implement a moderate fee structure for them. But it is not to be. The self-financing professional college managements petitioned the apex court, asking it to quash the provisions in the new law that were inconvenient to their interests alone - for example, the government college fee structure proposed for 50 per cent government merit seats in the new Act.
Strangely, as Justice K.T. Thomas says, the government, the Opposition parties or the agitating student organisations have not challenged the provisions in the Act that goes against the genuine interests of the students of the State. He cited as examples the sanction given to the private managements to fix their own fee structure and the absence of a monitoring mechanism to fix the fees or oversee the admission process as was suggested by the apex court in the Islamic Academy of Education case. The end result could well be that the private managements would manage to get a new law with all its provisions in their favour through their intervention in the court, with no one countering their claims.
The president of the Kerala Self Financing Engineering College Management Association, G.P.C. Nair, said that a consortium of private professional colleges had conducted a separate common entrance examination this year for admitting students into the management quota seats exactly as per the provisions of the new law. "The stress in our colleges is on the quality of education and we cannot ensure quality with the kind of fee structure the government is trying to implement through the Act," he said.
In an interim order issued in response to the petitions against the new law, the Supreme Court refused to stay the operation of the provision in the Act fixing 50 per cent of the seats as government merit quota. But, simultaneously, it refused to allow the moderate fee structure as suggested by the Act to come into effect. Instead, it said, that uniform fees fixed by the K.T. Thomas Committee be collected provisionally from all students this year too, until the court gave a final verdict (as is now expected, by the end of July). Meanwhile, political parties in Kerala have reached a consensus that steps should be taken to move Parliament so as to include the Act in the Ninth Schedule of the Constitution to place it safely away from judicial intervention. But, as the self-financing professional college managements know from experience, it is easier said than done.