Ordinance fiasco in Kerala

Print edition : July 16, 2004
in Thiruvananthapuram

Chief Minister A.K. Antony and his Cabinet colleagues at a meeting with college management representatives in Thiruvananthapuram on June 8.-K.GOPINATHAN

THE newly appointed Governor of Kerala, R. L. Bhatia, had hardly settled down at the Raj Bhavan on June 24 when the Congress-led United Democratic Front (UDF) government approached him for his assent to a controversial ordinance on the regulation of admission and the fixation of fees in unaided, self-financing professional colleges in the State before the start of the monsoon session of the Assembly the next day.

The government, which has been trumpeting the large-scale sanctioning of self-financing educational institutions as its greatest achievement since coming to power in 2002, was keen to stall a discussion on the controversial measures it was contemplating on the vexed issue of admissions to and the fee structures of the colleges. Hence the urgency to get the Governor's sanction for the draft law.

However, the Governor returned the draft ordinance and directed the government to get a formal approval for its provisions from the State Assembly. Many of the provisions of the draft law were against the directions of the Supreme Court (see box) and bound to be challenged in the courts. The ordinance, if promulgated, could provide the government a temporary reprieve and become the basis for admitting students to the professional colleges in the current academic year. The alternative before the government was to draft a Bill with the same provisions and present it for discussion in the Assembly.

Had it passed the Governor's scrutiny, the draft ordinance would have rescued the A.K. Antony government from the task of implementing the recommendations of the five-member (Justice K.T. Thomas) Committee appointed as per the directions of the Supreme Court to fix the fee structure of and oversee the admission process in private self-financing professional colleges. Although the apex court had envisaged the setting up of two committees, one for fixing fees and the other to oversee admission procedures, only one committee, which was also overseeing the admission process in the colleges, came into being in Kerala.

The recommendations of the Justice Thomas Committee on the fee structure met with widespread opposition - from the student-parent community, the college managements, and the government and political parties. Unwittingly, perhaps, it had vitiated the already sore atmosphere in the fast-liberalising educational sector in the State.

The committee had suggested a "uniform" fee structure for all students, irrespective of whether they gained admission in the merit or management quota. In short, any student seeking admission in a medical, engineering, or dental college or for an MCA degree, for example, would have to pay Rs.1,13,000, Rs.38,000, Rs.76,000 and Rs.38,000 respectively as fees. The committee members insisted that they had adhered to the directions of the Supreme Court in the Islamic Academy of Education case and the T.M.A. Pai case. The committee had arrived at the fee structure after nearly five months of inquiry and deliberations on the "reasonable costs" incurred by different groups of institutions and after considering several other factors, including the court's directive that merit alone should be the basis for admission and that profiteering in any form should not be allowed.

Until last year, merit quota students of private, self-financing professional colleges were paying only the low fees applicable for students in government professional colleges (Rs.11,500 in medical colleges and Rs.6,600 in engineering colleges, for example). The committee's rationale for recommending the fee hike in the merit stream was that the apex court had expressly prohibited the realisation of two types of fees from students in the same course and that economically weaker students could utilise "easily available" bank loans.

In effect, the K.T. Thomas Committee recommendations meant that (1) students in the 50 per cent merit seats in each private self-financing institution would have to pay the same (higher) fees fixed for students in the management seats; (2) the admissions to the 50 per cent management seats in the private unaided colleges would be based on a separate common entrance test conducted by the association of college managements (and not on the common test conducted by the government as demanded by students' unions); (3) although the college managements would get a total fee revenue that was higher than what they received the previous year (because the merit quota students now had to pay more), the revenue would still not match their expectations or do justice to the representations that they had placed before the committee; and (4) the A.K. Antony government was in a spot because contrary to the government's stated policy, merit seat students were being asked to pay as much as those in the management quota. While launching the self-financing college revolution soon after his government came to power, Antony had proudly reasoned that "allowing two private self-financing colleges, in a way, amounted to the setting up of one government professional college" because 50 per cent of the seats in the private institutions were to be set apart for students from the government merit quota who had to pay fees equivalent to those in the government-run colleges. Strangely, even before the committee announced its contentious recommendations, the unaided medical, dental, Ayurveda and Siddha college managements went ahead with the admission procedures for the year, inviting applications (obviously with the prospectus giving some idea of the huge fee expected of them - over Rs.4.5 lakhs in medical colleges, for example - in the management quota) and making preparations for conducting a common entrance examination of their own for filling the 50 per cent management seats. The private managements reasoned that their colleges would lose the recognition of the respective national councils if the tests were not conducted before June 13. The committee had expressly prohibited the managements from going ahead with the test, pointing out that more applicants would like to appear for the test once they know that the committee had recommended a reduced quantum of fees in the management quota and that the tests need to be conducted under its supervision in a fair and transparent manner.

The committee announced that the test was "rigged" and was a "farce" and issued directions to all the affiliating universities in the State that admissions made on the basis of the irregular entrance tests be considered irregular and asked the respective national councils to take legal action against the college managements. In turn, the "fee fixation committee's" right to oversee the admission process was questioned, as the court had recommended the formation of another "permanent" committee for this purpose.

When an agitation by students last year in front of the State Secretariat in Thiruvananthapuram against the State government's education policy turned violent.-K.GOPINATHAN

Chaos reigned when the government subsequently announced that the committee's suggestions were unacceptable and that it was drafting an ordinance. The draft ordinance was to be a please-all one that would at one stroke push away the inconvenient Justice Thomas Committee and its recommendations and introduce government fees in 50 per cent of the merit quota seats. It would give the managements total freedom to fix a "reasonable fee structure based on the costs incurred" for the management seats, allow them to conduct a separate common entrance test to fill the management quota, reintroduce a quota for non-resident Indian students from among the 50 per cent management seats, prohibit the collection of "capitation fee", and provide for the appointment of another committee to monitor and take action if the managements erred on this count.

However, many of the provisions of the draft ordinance, which were meant perhaps to balance the conflicting interests within the State, went against the grain of the existing law of the land, the recent Supreme Court's directions on admissions and fee structure in unaided, self-financing professional colleges. In fact, some of the provisions in the draft were similar to the ones in a 1993 apex court verdict (Unnikrishnan case), which was subsequently declared as "unconstitutional" by an 11-Judge Bench in October 2002. But Antony claimed that once the Governor promulgated the draft Ordinance and subsequently it received the approval of the State Assembly, the law (Act) could be recommended to Parliament for inclusion in the Ninth Schedule of the Constitution and thus positioned beyond the reach of the courts. It was a tall claim, both legally and procedurally. Such a law, if it went against the provisions of the Constitution as interpreted by the highest court, was sure to be challenged and there was no certainty that it would stay undisturbed during its long passage towards inclusion in the Ninth Schedule. Most important, the immediate purpose of such a law, to ensure a smooth, fair and just admission process for hundreds of students waiting anxiously to pursue a career, would not be served if it was legally flawed and encountered hurdles at every stage.

The draft ordinance will now have to pass the test of time and legal and legislative scrutiny, if it is to be a convenient antidote against the apex court's directions on the admission process and the fee structure. Admissions for the year 2004-05 have been inordinately delayed, the centralised allotment process planned for the State has been put on hold indefinitely, and the fate of hundreds of students hangs in the balance. It is unclear how the changes in the fee structure would affect the students who are in the second year of their study in the private professional colleges. The Opposition Left Democratic Front and its student organisations have announced the launching of a major agitation.

There is a reason why the government let the chaos spread. Kerala was a late entrant into the field of private, self-financing professional education and the first such institution started functioning in the State only during the academic year 2001-2002. Until then, the State had witnessed an exodus of students seeking professional education to Tamil Nadu and Karnataka, and according to one estimate, in 2001, 45 per cent of the student community in the mushrooming private professional sector in those States were from Kerala.

In three years, since the Antony government threw open the doors for private managements, 48 engineering colleges, six medical colleges, six dental colleges, 20 institutions offering MBA and MCA programmes, 29 nursing colleges and 52 B.Ed. colleges were established in the State. More are in the offing. The new self-financing college managements proudly claim that in a State where investors fear to tread, they have already devoted Rs.2,500 crores, provided direct employment to 18,000 people and indirect jobs to another 25,000. Above all, they claim, they had re-routed the Rs.400 crores that used to be invested in Tamil Nadu and Karnataka every year.

In this context, the UDF government, in which the Muslim League traditionally holds the Education portfolio, had left no one in doubt that its policy would be to ignore the potential for profiteering by the private managements if they offered 50 per cent of the seats in their institutions to "merit quota" students at fees fixed at its discretion. Such a policy compels the government to pretend to be struggling simultaneously to achieve the contradictory objectives of social justice and private profits, when all it does is to let problems drift and perhaps be solved deliberately through last-minute, imperfect initiatives or by the courts.

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