An Act nullified

Print edition : September 09, 2005
R. KRISHNAKUMAR in Thiruvananthapuram

At the Secretariat in Thiruvananthapuram, supporters of the SFI protest against the Supreme Court verdict.-S. MAHINSHA

THE abolition of government quotas in unaided professional colleges by the Supreme Court verdict has had a numbing effect on the student community in Kerala, where such colleges began to be established only in 2000. It was only in July that Opposition student organisations withdrew a violent agitation against the admission process, without significant immediate gains. Compared with the mood a few weeks earlier, initial reactions to the verdict from the student organisations were subdued.

On the other hand, the Congress(I)-led United Democratic Front (UDF) government, which altered the State's education policy by anchoring it on private capital instead of public funds and the principles of equity and justice (Frontline, July 29), has found in the judgment a safety valve to divert public attention from its wayward education policy. Leaders of the ruling coalition took on the task of leading the `grievance chorus' that the verdict was sharply at variance with a 2004 State law that set aside 50 per cent of the seats in unaided professional colleges as government quota. The government would ensure a certain quota of these seats for the backward sections of society. It had enacted the law to overcome a series of interim orders of the Kerala High Court and the apex court that favoured the private managements.

In the four years since the then Chief Minister A.K. Antony argued that the sanctioning of two self-financing professional colleges would provide the same benefit as the government establishing a college of its own, Kerala has seen self-financing professional colleges mushroom in the private sector. According to Education Minister E.T. Mohammed Basheer, the total number of seats in engineering, medical, agriculture and B.Pharm courses rose to 29,511 in 2005-06 from 9,369 in 2000-01, with 18,930 of these seats being created in the private colleges. The number of candidates admitted under the reservation quota for Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Classes shot up to 7,004 in 2005-06 from 2,666 in 2000-01, he said.

The UDF government had intended this as a measure to curb the flow of students to Tamil Nadu and Karnataka for professional education. In addition to the creation of educational opportunities at home, it announced that half the number of seats would be set apart for students in the government quota with fees as applicable in government colleges. Antony claimed that he had struck an unwritten understanding with the private managements about the 50 per cent government quota before allowing them to build their institutions. But, he said, they had reneged on their promise using the Supreme Court verdicts in the T.M.A. Pai case in 2002 and the Islamic Academy of Education case in August 2003 (Frontline, July 16, 2004), a claim that the private managements deny.

The Supreme Court's interim orders after the Pai case verdict eventually resulted in a hike in fees even for government quota seats and also led to unhindered profiteering by private managements, who secretly began to claim Rs.20 lakhs to Rs.30 lakhs for a medical seat.

A three-Judge Bench of the Supreme Court also said in 2004 that until the court gave a final verdict the "uniform" fee structure recommended by the Justice K.T. Thomas Committee (constituted under the directions of the court, Frontline July 16, 2004) should apply for admission to government and management seats. Hence, students admitted under the government quota had to pay Rs.1,13,000 and Rs.38,000 respectively for medical and engineering courses as recommended by the Thomas Committee, against the earlier Rs.11,500 and Rs.6,600 respectively.

The recent order throws open around 14,000 seats that are now in the government quota for profiteering by the managements. Said Mohammed Basheer: "The State government is of the opinion that the new verdict will put professional education in Kerala beyond the reach of students from the weaker sections of society. The stage will be set for extreme commercialisation and profiteering. There is no provision for ensuring educational avenues for the weaker sections and reservation for the Scheduled Castes and Scheduled Tribes. Social justice will be denied. Backward sections of society will no longer be able to claim the benefit of reservation of seats in higher education. The management will impose a hefty fee on the students. Merit will be ignored. Money power will rule. Professional education opportunities will only be available to the rich. The court's ruling is against the social realities in Kerala. We cannot accept it."

The Minister, who belongs to the Muslim League, said the government was considering legal opinion on the status of the State Act of 2004. He said: "We are not thinking of going in appeal against the verdict. We have our doubts whether an appeal by a State government will stand against an apex court verdict. Our priority will be to press for a law to be implemented as soon as possible. In all probability, the State law will cease to exist because the apex court has passed the verdict after hearing arguments also about the law passed by Kerala. The apex court judgment contradicts all the major provisions of the Kerala law. So there is no point in the State arguing that the law it passed still remains valid. The State can go for new legislation. We are considering whether that is possible. But a comprehensive Central law that takes into consideration all our concerns will be more than sufficient."

PRIVATE professional college managements are a happy, silent lot. Fr. Abraham of the Pushpagiri Institute of Medical Science and Research, Tiruvalla (in Pattanamthitta district), the first such college in Kerala that approached the court seeking the quashing of government quota following the Pai case judgment and within months of its opening, said: "We have nothing to say. We are not interested in speaking to the media."

Others were more forthcoming. Said Babu Musaliar, convener of the MEA Engineering College in Malappuram district: "We are happy. How else can we be when the highest court says that instead of 50 per cent we are eligible to admit students to 100 per cent of the seats in our colleges? But our college is run by a trust that believes in its commitment to society. We feel that the poor should not be denied the opportunity for higher education. A situation should not be created where professional education is pushed beyond the means of the poor and the backward sections of society."

G.P.C. Nair, president of the Kerala Self-Financing Engineering College Management Association, said the apex court had been "just" and had merely upheld the rights of citizens guaranteed by the Constitution. "The government has the right to bring in new legislation. We have to obey the law. But can any government pass a law that goes against the provisions of the Constitution? We are clear that no law in future can ignore the interests of the self-financing college managements because the governments do not have the resource to start more such institutions on their own. Reserving 50 per cent of the seats as government quota and imposing a low fee structure for those students are an economically unviable proposition. We feel that the government will have to amend the Constitution if the new law has to have provisions that go against the grain of the court verdict," he said.

In a State with a substantial Christian and Muslim population, the Supreme Court verdict could bring in a fresh set of problems with its reasserted dictum that "minority, whether linguistic or religious, is determinable only by reference to the demography of a State and not by taking into consideration the population of the country as a whole".

The court also said that "to establish a minority institution, the institution must primarily cater to the requirements of that minority of that State or else its character as a minority institution is lost".

A number of unaided colleges are run by managements that claim minority status and use it as protection against legal hurdles that prevent them from indulging in blatant profiteering and admitting a substantial chunk of students from other communities. Already, the Catholics Corporate Agency, which runs several colleges, has warned the government against the move to pass a new law and deny constitutionally guaranteed rights to "minority educational institutions".

In a State where political leaders are increasingly averse to touch upon the issue of minority status and where some of them often say in private that "no community in Kerala is a minority", a new Central law that defines `minority' as " a minority notified under Section (2) of the National Commission of Minority Educational Institutions Act, 2004" is likely to trigger a series of contradictory claims and social conflict.

Babu Musaliar's statement to Frontline that "the benefits are usually cornered by the minority managements, while the minority itself fails to get anything" is a significant reminder to the reality of blatant profiteering by many private managements, which are now more emboldened by the apex court verdict.

Mohammed Basheer, however, said the court's ruling on minority institutions was unlikely to cause any major impact in Kerala. "Minority rights are a welcome provision that needs to be ensured in the education sector. The court verdict may, however, prompt some managements to raise the demand for minority status with the sole motive of making profit. But then it is up to the State governments to take a judicious decision based on well-established norms. There is a danger that some managements may try to make capital out of the verdict, which merely reiterates the constitutional rights of the minorities. Rights of the minorities should be protected. But we should not allow it to be misused," he said.

The Minister said that while the State government was largely in favour of the provisions of the draft law circulated by the Centre, it too required major amendments. For example, though the draft law stated that 50 per cent of the seats in unaided professional institutions could be set apart for the managements, it did not specify that the other half of the seats were to be set apart as government merit quota seats. That was one major drawback, he said. "Kerala would ideally like a Central law similar to the one passed by the State. While the court denies the principle of cross subsidy as an argument for government quota seats, it allows cross subsidy from the 15 per cent quota it envisages for NRI students. These problems have to be addressed clearly by the new law," he said.

As T.N. Jayachandran, a member of the K.T. Thomas Committee, who is a retired Additional Chief Secretary and a former Vice-Chancellor of Kerala and Calicut universities, said the crux of the problem was the reluctance of the authorities to devise a mechanism to abolish capitation fee.

The State law, too, he said, had failed miserably to curb capitation fee. Said Jayachandran: "Despite the courts and the governments repeatedly stressing the need to prevent commercialisation and profiteering, nobody has so far evolved a fool-proof mechanism to stop the practice of capitation fees. The State law passed in 2004 also says that it is an Act `to prohibit capitation fee' but lays down any number of ways in which a private management can collect a hefty fee under several heads. Why prohibit capitation fee when the management can collect it under a different guise? Every unaided engineering and medical college in Kerala today collects capitation fees, and despite the law, no step has been taken by the government to stop it."

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