THE August 12 Supreme Court judgment brings to the managements of unaided private professional colleges an embarrassment of riches, as some of them see it, and leaves the State government searching for ways to retain its quota of seats and hold over admissions in these colleges. By implementing the court's orders the State government stands to lose control over 1,300 medical seats in 27 privately managed colleges, 1,200 dental seats in 48 colleges and over 24,000 engineering seats in 108 colleges. It will be left with less than 500 medical seats, 60 dental seats and 4,340 engineering seats.
Minister for Higher Education D. Manjunath told Frontline that the government was contemplating filing a special leave petition (SLP) against the ruling in a bid to retain its percentage of seats - 50 per cent in medical and dental colleges and 65 per cent in engineering colleges for the academic year 2005-06 - so as to ensure reservation for special category students and for those from Karnataka. It would also impress upon the Central government the need to pass Central legislation in this regard.
However, legal experts felt that an SLP or a review petition would not work since the Supreme Court's judgment was a reaffirmation of the court's August 2003 order in the Islamic Academy of Education case, which in turn was a clarification of the court's October 2002 ruling in the T.M.A. Pai case. In all three judgments the court settled the fundamental question whether the state can encroach upon the rights and functioning autonomy of institutions and courses that it does not fund.
Said A.N. Jayaram, a former Advocate-General for Karnataka and a former Additional Solicitor-General of India in the Supreme Court: "A review will not succeed since the court has taken the stand that higher education should pay for itself. It has also held that higher education is not a fundamental right... . The only way out of this is a deeply thought out constitutional amendment that provides for reservations in higher education. A constitutional amendment cannot be struck down by the court."
An ordinary law passed by Parliament would not provide the succour that Karnataka and other States wanted, he said. "An ordinary law passed by Parliament will in all probability be seen by the Supreme Court as an attempt to override its judgment, and could be struck down. A constitutional amendment, whose passage has to be ratified by the States, will send a message to the Supreme Court that all the States concur with the Union government's thinking on providing reservation in privately run higher educational institutions."
In August 2004, an all-party delegation led by Chief Minister N. Dharam Singh had submitted a memorandum to Human Resource Development Minister Arjun Singh seeking legislation to govern admissions and the fee structure in private professional colleges. Also pending is the State's request that the legislation that the Assembly passed in 2004, governing admissions to these colleges, be included in the Ninth Schedule of the Constitution so that it cannot be challenged in court. The Centre recently circulated to all States a copy of the draft `Private Professional Education Institutions (Regulation of Admission and Fixation of Fee) Bill, 2005'.
On their part the college managements, while calling the verdict "a liberation" providing them with "an opportunity to exercise their right", were wary that it might not be a politically correct one. They were also worried that any Central legislation in this regard would seek to nullify the verdict. Most managements viewed the judgment as "interim happiness". Said Professor M.R. Doreswamy, chairman of PES Institutions: "As things stand today, nobody can prevent reservation and quotas. Keeping this in mind, I think it will be impossible for both the Central and State governments to allow the judgment to be implemented. But the Central government must specify the number of years reservations should continue."
Dr. N. Kumar, executive secretary of the Consortium of Medical, Engineering and Dental Colleges - Karnataka (COMED-K), said the government could not practise social justice at somebody else's expense. The COMED-K conducts entrance examinations for various private medical, dental and engineering college associations in the State and has the allegiance of 15 medical, 21 dental and 53 engineering colleges. On August 18, COMED-K announced that it would earmark 25 per cent of seats in its colleges for students from the weaker sections, especially those from Kannada-medium schools, rural areas and the S.C./S.T. categories. M.R. Jayaram, chairman of COMED-K, said the fees for these seats would be the same as for free seats in government colleges.
"Social justice should be voluntary; you cannot prescribe it by pointing a gun. The government's role should be confined to that of a good referee. The trouble is when it starts making the rules instead of implementing them," said Kumar.
Added Doreswamy: "Social justice is primarily the responsibility of the government. But most private professional colleges do reserve a percentage of seats for socially and economically underprivileged students. In an attempt to correct social disparities we at PES do accommodate/help by means of scholarships, a certain percentage of Scheduled Caste and backward class students. But it is for the government to start colleges and take care of Scheduled Caste and backward class students."
But the government's bid to start six new medical colleges came unstuck when the Medical Council of India refused them sanction because they lacked the required infrastructure and the teaching faculty. Karnataka now has four government medical colleges. Ironically, the State, which boasts 48 private dental colleges, has just one government dental college. Of the 120 engineering colleges, 108 are privately managed and there is not one that is managed directly by the government.
The managements were happy that they could earmark 15 per cent of their seats for non-resident Indians. They said funds generated from these students would come in handy "to upgrade their infrastructure, attract top-class faculty and subsidise poorer students". But the court's reiteration that all seats should be filled on the basis of merit, they felt, would not provide them with "a small discretionary quota" from where they could hand out seats "to children of faculty members and others who are useful to the institution". A petition on this from Doreswamy is pending before the Karnataka High Court.
The managements were not clear who would conduct the entrance test once the judgment came into force. While some said there would necessarily have to be an all-India examination, others felt that bodies such as the COMED-K were well within their rights to do so.
Meanwhile, managements, including those allied with the Karnataka Private Medical and Dental Colleges Association, reiterated their demand that the State government's Common Entrance Test (CET) Cell should be an autonomous body with representatives from the managements. According to M.R. Jayaram, if that was done, the managements under the umbrella of COMED-K would be willing to draw up the merit list for their seats on the basis of marks secured in the CET.
Some of them also questioned the court's direction that there should not be profiteering. Said D.P. Nagaraj, joint secretary, RV Institutions: "If we run our colleges only taking into effect salaries, how do we build infrastructure? We should be allowed to have depreciation on existing capital costs. The government should get over the feeling that private colleges are here only to make money."
Doreswamy said there should be no fear that colleges would start prescribing exorbitantly high fees or revert to demanding capitation fees. "The Court has envisaged governmental regulation in maintaining fairness and transparency in the admission procedure and to check exploitation of students. And market forces will prevail in controlling fees. Many engineering colleges have lowered their fees this year to below what is prescribed by the government," he said. There were no takers for over 8,500 engineering seats in the 2004-05 academic year.
According to Doreswamy, while the fee structure for medical seats should be in the region of Rs.2.5 lakhs a year, a good engineering college could be run comfortably if it collected Rs.40,000 a year in fees.
According to many students and educationists, it will be very difficult for the government to observe and rectify any anomalies since the very people in government are the ones who are running many of the private professional colleges. A former college principal cited the case of an educational group that runs an engineering college in Bangalore with an intake of around 1,000 students every year. He said: "At any time there are 4,000 students in the college each paying around Rs.50,000 per annum. This translates into Rs.20 crores per annum. This educational group also runs courses in medicine, dentistry, nursing, pharmacy, management.... Who is to decide whether the money that is being gathered amounts to profiteering or not?"
Former Chief Minister M. Veerappa Moily, the architect of the State's 1993 `policy' governing admissions to private professional institutions - specifically its CET and the division of seats under the `free' and `payment' categories - is unhappy with the judgment. He said that rather than clarifying the points that were raised in the T.M.A. Pai and Islamic Academy judgments, it had caused more confusion.
In his opinion, the judgment, which talked of unfettered rights for unaided institutions, would open a Pandora's box since the term unaided would now have to be redefined. Asked Moily: "What is unaided? Can we construe that affiliation to a university is a form of aid? Can the use of facilities at government hospitals by students from private medical colleges for clinical studies be construed as aid? Can the grant of land at concessional rates and other concessions by the government be construed as aid?"
He added: "This judgment is against the letter and spirit of the Constitution. This is a conciliation judgment. And it is for the first time that the Supreme Court is denying social justice. Which is sad since the accessibility of higher education even today is very restricted. Today hardly 6 per cent of those who are admitted to the first standard take up higher education. This judgment has far-reaching consequences not just for professional education but also for society in general. It is surprising that when the talk is of affirmation programmes in employment even in the private sector, we have a judgment that says there is no room for social justice in unaided institutions. Given India's social hierarchy and disparity, the judiciary cannot rule in isolation. Even today the haves of our society can be compared to an island of prosperity in an ocean of poverty."
Moily blamed both the Central and Karnataka governments for not taking the initiative and enacting legislation. "You can't run private professional educational institutions only with executive orders. You need laws. The courts will interpret the laws, but if there are no laws they will make them," he said. "The August 12 judgment is not judicial interpretation but a writing of law."