Legalising exploitation

The draft of a law on admissions to private institutions of professional education leaves private players free to function in the way they choose.

T.K. RAJALAKSHMI in New Delhi

AMIDST the debate over the question of autonomy to private institutions of professional education and a slew of court orders following the T.M.A. Pai case, the Union Ministry for Human Resource Development circulated a draft Private Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Bill, 2005, at a recent meeting of the Central Advisory Board of Education.

The idea was mooted first at the State Education Ministers' conference in Bangalore in January. The Bill is all the more significant now in the context of the Supreme Court ruling in P.A. Inamdar and Others v. State of Maharashtra and Others. The ruling abolished state quotas in private self-financing institutions, holding them to be an infringement upon the autonomy of private managements.

The proposed piece of legislation was avowedly envisaged in the interests of both social justice and institutional autonomy. The draft deals with the issues of fee regulation and quota for weaker sections in private, unaided educational institutions.

However, there appears to be no fundamental contradiction between the proposed legislation and the verdicts by the Supreme Court. Various clauses in the draft Bill, said K.K. Ragesh, president of the Students Federation of India, actually reiterated the court's conclusions in the T.M.A. Pai, Islamic Academy and Inamdar cases. Many of the clauses, he said, were designed to protect the commercial interests of private managements.

For instance, on the fixing of fees, the Bill gives a long rope to the private unaided institutions. It says that the factors determining the fee structure are: the location of the professional institution; the nature of the professional course offered; the cost of land and building; the available infrastructure; the expenditure on administration and maintenance; a reasonable surplus required for growth and development of the professional institution; and last but not the least, the revenues forgone on account of any fee waivers for students from the Scheduled Castes, Scheduled Tribes, economically weaker sections and socially and educationally backward classes. The draft Bill also allows the institution to have its say before fees are fixed, though there is a provision for a committee to regulate fees and admission.

Said Ragesh: "Instead of using the word `profit', the Bill refers to a `reasonable surplus'. A similar term was used by the Supreme Court to justify the commercial motive." The draft says nothing about controlling capitation fees and there are no provisions to ensure that the pattern of government fees applies to general seats. The proposed law provides for reservation of seats for candidates from the Scheduled Castes and the Scheduled Tribes and, wherever applicable, for students from socially and educationally backward classes and other economically weaker sections. But the bulk of the seats are for the institutions to fill at their discretion.

A close scrutiny of the draft Bill suggests that it has perhaps little to do with social justice. There are clear guidelines regarding the `management quota'. The proposed law says that in unaided professional educational institutions, other than minority institutions, the management may reserve up to 50 per cent of the `sanctioned intake' under the management category. (The sanctioned intake is the total number of seats sanctioned by an authority notified by the Central government for admitting students in each course of study in a professional institution.) Only around 15 per cent of the seats of the general category in a private professional institution may be filled on an all-India basis in a manner notified by the Central government. The Bill allows the managements to admit foreign students over and above the `sanctioned intake'.

The admission process in private, unaided institutions has been left entirely to the managements. There is provision for a common entrance test to be conducted by an association of private, aided or unaided professional educational institutions. Only if the admission to a seat under the `management category' is seen to be not `fair' and `transparent' will the seat come under `general category'. But it is not clear how the `fairness' of the process is assessed or how the state will be able to intervene.

The idea of a consortium of managements admitting students on the basis of its own common entrance test in the absence of any clearly defined agency to ensure transparency left scope for manipulation, the SFI leader said. Though the Bill provides for a three-member committee to be presided over by a former Vice-Chancellor to ensure transparency in admissions under the management category, it is not clear how this committee would go about its task.

The SFI president told Frontline that the Human Resource Development Minister had assured the Left members of Parliament that the Bill would address the concerns stemming from Section 2(g) of the Minority Education Commission Act, enacted to give affiliation to minority institutions in Central universities. Here minority institutions were defined as institutions run by an individual or group of individuals belonging to a minority community, rather than institutions that provide educational opportunities to members of a minority community.

The apprehension, said Ragesh, was that admission would be given to sections that could afford high capitation fees, even if they did not belong to the minority community. Hence the Left parties and student organisations such as the SFI have demanded that a clause be inserted to ensure the entry of economically backward students from the minority community.

These concerns, Ragesh said, were not reflected in the Bill in its present form. It only says that the government would notify what the term "minority" means for the purpose of this Act and that "minority institutions" would be institutions run by the "minorities."

The SFI feels that the government should enact the draft Bill after removing all the shortcomings. The only way of controlling unbridled capitation fee under the management quota is to admit students from the rank list prepared on the basis of an entrance test conducted by a state agency. The situation of a consortium of private institutions conducting the tests can lead to the use of the very loopholes the proposed law intends to plug. The draft should also include a provision for governing bodies with elected people's representatives, student representatives, teachers and other academic representatives as members, according to the SFI.

Thomas Joseph, national secretary of the All India Federation of University and College Teachers' Organisation (AIFUCTO), expressed serious reservations about the draft Bill. The legislation, he said, was necessitated by a public outcry against the unbridled freedom given by the Supreme Court to private entrepreneurs in professional education.

Thomas Joseph felt that the draft proposals were unlikely to fulfil the expectations it had raised and that the problems would only aggravate if the Bill were enacted in its present form. The most disquieting feature, he said, was the provision for reservation in minority aided and unaided institutions under the "management category" rather than the "community category". Expressing concerns similar to those of the SFI president, he said that the managements might sell seats openly to the highest bidder.

Under the proposed law, an aided minority institution (run by members of a minority community) may reserve up to 50 per cent of the `sanctioned intake' for the community under the `management category'. In an unaided minority institution, the figure should be not less than 50 per cent, a provision that Thomas Joseph said might lead to the reservation of all seats under the "management category". "How can individual applicants benefit from this as the seats are reserved under the management quota and not the community quota?" he wondered.

The general opinion is that in its current form, the draft law is not capable of addressing the crisis in the arena of professional education, and will only open channels for further litigation and harassment of aspiring students.

The `user pay' principle cannot operate in a situation of deep inequities, especially since the United Progressive Alliance's Common Minimum Programme has promised that no student would be denied access to professional education because of poverty.

The draft Bill may not be put through the test until the next winter session. State governments are supposed to submit their feedback to the Ministry in September. An all-party committee to be appointed by the Ministry will discuss the draft proposals. If the government takes a serious view of the criticisms, a new draft may emerge in the near future.