With the Supreme Court granting privately run unaided professional colleges the right to conduct their own entrance examinations for admission and to charge capitation fee, professional courses could well be out of the reach of the socially and educationally backward sections of society.
in ChennaiA JUDGMENT of the Supreme Court on the rights of minority educational institutions, which received little notice when it was delivered four months ago, is slowly moving centre stage, thanks to the approaching admission season. The judgment has caused dismay among thousands of students aspiring for professional education.
A 11-Judge Constitution Bench headed by Chief Justice B.N. Kirpal struck down on October 31, 2002, a scheme evolved by the apex court in the Unnikrishnan case (1993) to regulate admissions in private professional colleges by classifying eligible students into three categories: "free seats" and "payment seats" on the basis of their ranks, and "management quota". This enabled the State governments to ensure social justice under the reservation system for admissions. Holding this scheme "unconstitutional," the Judges observed: "The scheme framed by this court and the direction to impose the same, except where it holds that primary education is a fundamental right, is unconstitutional." Referring to the fees collected by the professional colleges, the court said: "The principle that there should not be capitation fee or profiteering is correct. Reasonable surplus to meet the cost of expansion and augmentation of facilities, does not, however, amount to profiteering."
The Bench, which was disposing of more than 200 petitions that raised several complex issues relating to the status and rights of minority communities, reaffirmed in a significant ruling the rights of minority communities to establish and run educational institutions "of their choice" as provided in the Constitution. However, it ruled that only those minority institutions that did not receive state aid would enjoy unrestricted rights and aided institutions could be brought under the state's minimal regulatory measures. Unaided educational institutions run by "non-minorities" could have their own admission procedure, but fairness and transparency should be ensured.
THE judgment has met with well-meaning criticism from lawyers, academics and political leaders. Critics say that the judgment is based on certain assumptions that are farther from ground reality. They question the interpretation that the "right to education" guaranteed by the Constitution was confined to "education up to the age of 14" and that there is no fundamental right to "higher education". Former Vice-Chancellor of Anna University, Chennai, Dr. M. Anandakrishnan, said this was based on the assumption that if one went for higher education it was meant only to promote one's own interests and that it was not for social good. "Even the World Bank and the World Trade Organisation, which were the first to moot this idea, have since retracted," he said. "They have realised that higher education, particularly in today's knowledge society, plays a crucial role in the development of any country."
Another assumption is that it was the government's failure to provide "quality education" that led to the emergence of private institutions. Anandakrishnan said this assumption also was contrary to the reality. He cited institutions such as the Indian Institutes of Technology (IIT) and the Indian Institutes of Management (IIM) at different centres, besides several universities, as "excellent centres" of education. There are also many Central schools that provide excellent education.
Yet another assumption is that only private institutions can provide "quality education" and that they are run by "educationists and philanthropists" with a "charity motive". The ground reality seems to be otherwise. Many private engineering colleges that have mushroomed in the past two decades have often had to face the wrath of students and parents for their failure to provide qualified teachers, laboratory facilities and modern teaching aids. Charges of malpractices levelled against the managements of many self-financing colleges, including the demanding and taking of unauthorised payments from students, do not speak well of the "quality" of service rendered by these institutions. The management of one college in Tamil Nadu is said to have demanded for the hall ticket a few thousand rupees from each student on the eve of the university examination.
Although the Single Window System (SWS) ensured admission for a qualified student in accordance with his or her rank and the government had fixed the fee structure for both "free seats" and "payment seats" in these colleges, there is no guarantee that the student will not be harassed after admission. A number of students are forced to drop out. Student leaders allege that all sorts of fees - game fee, computer fee, garden fee, development fee, to mention a few - are demanded in a number of colleges. Worst of all are the allegations of "mass copying" by students in many of these colleges. Last year a university inspection team in Tamil Nadu is said to have recorded "large-scale'' copying by students in about 10 professional colleges, which apparently could not have been possible without the connivance of the managements.
Senior advocate K. Chandru of Chennai said the 11-Judge Bench's verdict goes against the socialist preamble of the Constitution. If the Balco case (2001) judgment upheld disinvestment and the SAIL case (2000) sanctified outsourcing, the present judgment seems to have re-interpreted the "right to education" to suit the needs of the state, which is already withdrawing from the education sector, he said. It marks the return of the market economy in the field of education. The socially and economically deprived sections of society have been left to the mercy of the market forces. "Social justice flows from the socialist preamble and when the socialist preamble is dismantled social justice also goes with it," said Chandru. He felt that a review by a 13-Judge Bench was still possible and the other alternative was to demand necessary amendments to law. Either of these would be done only by public pressure, he said.
TAMIL NADU is perhaps one of the first few States that permitted the large-scale opening of unaided private engineering colleges, in the mid-1980s when Prime Minister Rajiv Gandhi launched the New Education Policy. Under the policy, entrepreneurs were invited to open professional colleges to meet the increasing need, since the government could not generate the funds required. Instant support came from the then Chief Minister, M.G. Ramachandran. For many it was an opportunity for money-laundering. Politicians, including Members of Parliament, also entered the field making use of some generous offers from the government in terms of land and infrastructure facilities. The highly polarised political situation in the State was also helpful in a large number of influential politicians getting permission to start colleges. Besides engineering colleges, medical colleges, though few in number, and paramedical institutions also came up. The State government hardly opened any new college during this period, and since 1978 no fresh aided college has come up.
The State saw a phenomenal increase in the number of unaided professional colleges, particularly engineering colleges, since the early 1990s. Between 1997-98 and 2001-02, there was a 150 per cent increase in the number of self-financing engineering colleges in the State (from 76 to 207). Tamil Nadu today accounts for the largest number of unaided institutions of higher learning in the country. About 600 colleges - engineering, medical and paramedical, and arts and science - were functioning in the State during 2000-2001, roughly one-third of them run by minority communities, linguistic or religious. Of the 222 engineering colleges in the State, 212 are unaided institutions. As for medical and paramedical colleges, 132 of the total 147 are unaided. Of the 440 arts and science colleges, 247 are private institutions run without State funds.
Tamil Nadu is one of the few States where a time-tested reservation system is operational, particularly in admissions to professional colleges. Understandably, therefore, leaders of political parties and academics expressed deep concern over the implications of the judgment for the poor and the socially deprived sections of people. If the reservation rule is not enforced, the backward sections will see a huge erosion in the number of seats they would have otherwise got.
Educationists fear that owing to the presence of such a large number of "self-financing" colleges, which already charge hefty fees and fleece students with additional collections every now and then, low-income families will also be increasingly alienated from professional and higher education in general. They want the State government to protect the interests of these sections by ensuring social justice in the matter of admissions and also by making higher education affordable to them. Pressure is also mounting on the State government to look for a legal remedy, if necessary through a revision petition in the apex court.
Ten weeks after the Supreme Court judgment, on January 26, the Tamil Nadu Self-Financing Colleges Association president, Jeppiaar, announced in Chennai that the association's member-colleges would admit students for B.E./B.Tech courses in the coming academic year on their own, without participating in the processes of the State government's SWS. The SWS, under which students are selected on the basis of marks obtained in a common entrance examination added on to their marks in the qualifying higher secondary (Plus Two) examination, was launched in the wake of the Unnikrishnan case. The Chennai-based Anna University conducts the entrance examination and arranges for the counselling, which ensures fairness and transparency. The SWS has evolved into a model one over the years. It has also taken care of the reservation system of the State government, which provides for the allocation of 69 per cent of the total seats to the backward and most backward communities and the Scheduled Castes and the Scheduled Tribes.
Jeppiaar announced that a mere pass in the Plus Two examination was enough to qualify for admission to the member-colleges. This, he said, was based on the guidelines of the All India Council of Technical Education (AICTE). Jeppiaar also said that these colleges would adopt a "fair and transparent" admission system.
Anna University Vice-Chancellor E. Balagurusamy, after a meeting with State Education Minister S. Semmalai, made it clear that students admitted by self-financing colleges in violation of university norms would not be awarded degrees. The university would not allow standards to be diluted, the Vice-Chancellor said. The students and parents were agitated over the controversy.
The government held discussions with the managements of the unaided professional institutions on February 3 and announced thereafter that a new admission policy would be announced soon. A fortnight's delay in announcing the entrance examination added to the tension of the students. The government at last came out with its new policy on March 4. According to the policy, applicable from the coming academic year, the unaided non-minority colleges can fill 50 per cent of their seats, leaving the rest to be filled by the government through the SWS. Unaided minority colleges are to leave 30 per cent of their seats to be filled under the SWS. It was also announced that when the colleges admit students on their own, they should follow the reservation rules and adopt "a transparent and reasonable method of admission".
It was also announced that since the government, as per the Supreme Court judgment, could not prescribe the fee for unaided institutions, it advised these colleges to charge Rs.30,000 as the annual fee and extend a concession of Rs.5,000 to meritorious students admitted under the SWS. Education Secretary V.K. Subbaraj said the government was evolving an "appropriate mechanism" to see that no student was overcharged or harassed by the management and also to prevent "profiteering."
Another significant announcement was that the minimum marks for eligibility would not be changed. The government turned down a plea from the managements to prescribe a mere pass in the Plus Two examination as the criterion for eligibility.
Even if the government's new policy can help reduce the impact of the judgment to a limited extent by retaining the SWS and protecting the reservation rules, provided the unaided institutions extend their support, the potential of these colleges to fleece students will remain unchanged.
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