A protection under test

The Supreme Court's August 14 ruling interprets its October 2002 judgment on minority educational institutions, but there is scope for further clarity.

in New Delhi

THE constitutional protection guaranteed to the minorities to preserve their language, religion and culture is proof of the Indian state's commitment to the principles of secularism and pluralism. This protection, enshrined in Articles 29 and 30 and grouped as Cultural and Educational Rights, has given the minorities a sense of security and belonging in the face of aggressive majoritarian tendencies everywhere. However, a certain degree of ambiguity has clouded this protection owing to different judicial interpretations.

The latest of these is the judgment of the Supreme Court's five-member Constitution Bench delivered on August 14 in the Islamic Academy of Education vs State of Karnataka case. The Bench, comprising Chief Justice V.N. Khare and Justices S.B. Sinha, S.N. Variava, K.G. Balakrishnan and Arijit Pasayat, sought to interpret the judgment delivered by the Supreme Court's 11-Judge Bench on October 31, 2002 in the T.M.A. Pai Foundation and Others vs State of Karnataka and Others case (Frontline, November 22, 2002). In that judgment, which included two notable dissents, the court held that under Article 30, the rights of linguistic and religious minorities (as well as the majority community) to set up educational institutions of their choice were unfettered, but that the right to administer them was not absolute. The State and the universities could apply regulatory measures in order to maintain educational standards and excellence in such institutions, it held. The verdict defended the fee hike in private unaided professional educational institutions by suggesting that they may be allowed to charge a reasonable surplus to sustain their operations and to allow for augmentation and improvement.

The October 2002 judgment led to legitimate fears that unaided educational institutions, whether minority- or majority-run, would fleece students if they were left to fix their own fee structures (Frontline, August 1, 2003). That the Bench forbade these institutions from charging capitation fee and thereby profiteering was hardly a consolation in the absence of clarity on what constitutes a legitimate fee structure.

In the Unnikrishnan vs State of Andhra Pradesh case (1993), the Supreme Court had laid down a scheme that envisaged three types of seats: 15 per cent seats to be filled by the management of private professional institutions with candidates of their choice for any quantum of fee; 35 per cent seats to be filled with candidates for a fee fixed by the State government; and 50 per cent "free" seats, to be filled with candidates selected on the basis of merit determined by a common entrance examination. The court had evolved the scheme in its anxiety to check the commercialisation of education.

The court assumed that the economic capacity of the 50 per cent of students getting admission under the payment category would be greater than that of the remaining 50 per cent, gaining admission to the free, merit seats. In reality, however, the student taking the "payment seat" not only paid for his own seat, but also financed the cost of the seat his classmate coming under the merit quota. This was found to be unreasonable, and the right of a private unaided institution to give admission and to fix the fee was found to have been compromised by the court's decision. Not only were the institutions that followed the Unnikrishnan scheme confronted with revenue shortfalls, but most of the "free seats" were occupied by students from affluent families, as their scores in the common entrance test were higher (their better economic and social backgrounds gave them access to better coaching) than those from less affluent families (the latter ended up paying exorbitant capitation and tuition fees to secure admission). The scheme became applicable to the minority institutions as well, notwithstanding the constitutional protection.

In the T.M.A. Pai judgment, the court declared the Unnikrishnan scheme unconstitutional, but gave the discretion to each State to reserve a certain percentage of the seats for admission by the managements from among those students who had passed the common entrance test held by the college or by the State/university and had applied to the college concerned for admission, while the rest of the seats might be filled on the basis of counselling by the State agency. Prescribing the percentage for this purpose has to be done by the government according to the local needs, and different percentages can be fixed for minority unaided and non-minority unaided and professional colleges, the judgement had stated.

This led to sharp diversity on the size of the management quota, to be fixed by the State government, in various States. In the present case, private unaided colleges submitted to the Supreme Court that they had been given complete autonomy not only as regards the admission of students but also as regards the determination of their own fee structure. They argued that the right to admit students was an essential facet of the right to administer, and that so long as admission to the unaided educational institutions was on a fair and transparent basis and on the basis of merit, the government could not interfere. Those who made this plea included both minority and non-minority institutions, which also claimed a fundamental right to establish and administer educational institutions.

In response, the Centre, various State governments and some students who sought to intervene, contended before the Supreme Court that the right to set up and administer an educational institution was not an absolute right and that that right was subject to reasonable restrictions and (even in respect of minority institutions) the national interest. The state's interference was justified in order to check the charging of capitation fees and profiteering, to ensure that admissions were made on the basis of merit, and to ensure that persons from the backward classes and poorer sections of society had an opportunity to receive professional education.

IN its August 14 judgment, the court clarified that there could be no fixing of a rigid fee structure by the government. Each institute would be entitled to have its own fee structure, keeping in mind the infrastructure and facilities available, and required in future, the court explained. In order to give effect to the judgment in the T.M.A. Pai case, the court suggested the creation of a five-member committee of professionals (including a chartered accountant) and bureaucrats in each State. The committee will be headed by a retired High Court Judge, to be nominated by the Chief Justice of that State. This committee will be empowered to decide whether the fees proposed by an institute, well in advance of the academic year, are justified. The fees so fixed by the committee shall be binding for a period of three years, at the end of which the institution would be at liberty to apply for revision, the Bench held. If the institution charged any amount as fee over and above the fee fixed by the committee, it would amount to the charging of capitation fee, and this would invite penalisation in the form of loss of recognition and affiliation of the institution with the university, the Bench warned.

The Bench sought to remove the misgivings created by the court's judgment in the T.M.A. Pai case with regard to the status of non-minority educational institutions. Holding that non-minority educational institutions do not have the protection of Article 30, the Bench pointed out that in certain matters they could not and did not stand on a similar footing as minority educational institutions. The Bench made it clear that even though the government may have a right to take over the management of a non-minority educational institution, the management of a minority educational institution cannot be so taken over because of the protection given under Article 30. Minority educational institutions had preferential right to admit students of their own community/language; no such rights existed so far as non-minority educational institutions were concerned, it pointed out.

However, the Bench added a caveat: "Of course, we must not be understood to mean that even in national interest a minority institute cannot be closed down." Clearly, what is in "national interest" has been left unexplained. The phrase "national interest" does not find mention anywhere in the Constitution, and its use by the Bench to justify restrictions on Article 30 is ominous for the protection of minority rights. A government that has scant regard for minority rights can easily invoke this ruling to deny the benefit of Article 30 to minorities under the guise of catering to the "national interest". The majority of the Judges who passed the judgment in the T.M.A. Pai case had also observed that the right under Article 30 could not be such as to override the national interest or to prevent the government from framing regulations in that behalf. The observation, in the form of obiter dicta, reflected the feeling among certain sections that the minorities cannot have any fundamental right that is not available to the majority community.

The Bench clarified that a minority professional college can admit, in its management quota, a student of the management's own community/language in preference to a student from another community, even though that other student was more meritorious. However, the Bench warned that such institutions cannot ignore inter se merit of the students so selected. The Bench held that the managements could select students to its quota either on the basis of the common entrance test conducted by the State or on the basis of a common entrance test to be conducted by an association of all colleges of a particular type in that State.

The Bench allowed institutions, which were established and have had their own admission procedures for the past 25 years at least, to apply to the committee to be set up for the purpose. This committee, a permanent body, to be set up by the State government on the same lines as suggested in the case of fixation of fee by an institution, will ensure that the tests conducted by the association of colleges is fair and transparent. This second committee has been empowered by the court to fix different quotas for students to be admitted by the management in each minority or non-minority unaided professional college on the basis of their need in excess of the quota so fixed by the State government.

The court directed the setting up of the two committees in the States under Article 142 of the Constitution until appropriate legislation is enacted by Parliament. For the academic year 2003-04, in view of the time constraint, the Bench directed that the seats be filled up by the institution and the State government in the ratio of 50:50.

It remains to be seen whether the court's new scheme would help eliminate the problems faced in following the Unnikrishnan scheme, even while satisfying the demands of merit, accountability and minority rights in the admission process.