Judicial benchmarks

WHEN the practical scheme evolved by the apex court in the 1993 Unnikrishnan case to check commercialisation of education and ensure social justice and quality in self-financing professional education was found to be defective in several respects, the judgment was reviewed by an 11-Judge Bench (in the 2002 T.M.A. Pai Foundation case), which declared it "unconstitutional."

The Bench specifically objected to the provision in the 1993 judgment that forced students studying under the payment quota to subsidise the cost of education of those admitted under the merit quota. But it failed to suggest an alternative scheme, leaving its judgment open to different interpretations by the governments and various educational institutions. Therefore, in a judgment on August 14, 2003, in the Islamic Academy of Education case, a five-member Constitution Bench of the Supreme Court sought to clarify the doubts and anomalies raised before it about the ruling in the T.M.A. Pai Foundation case and its practice.

In its judgment, the court reiterated that merit should be the criterion for admissions and warned against profiteering and the charging of capitation fees by private self-financing educational institutions. However, the court also said that the government should not fix a rigid fee structure in these colleges. The government could insist on merit-based selection while allowing the managements sufficient discretion in admitting students. This could be achieved, it said, for instance, "by reserving a certain percentage of the seats for admission by the management" for those students who have passed the common entrance test held by "itself or by the State", while the rest of the seats may be filled up on the basis of counselling by a state agency. The court said that the percentage (of seats) for this purpose was to be prescribed by the government "according to local needs" and that "different percentages could be fixed for minority unaided and non-minority unaided and professional colleges."

Significantly, the court stipulated that each unaided private college would be entitled to "its own fee structure", keeping in mind the need to generate funds to run the institution and to provide facilities necessary for the benefit of the students. They must also be able to generate surplus funds "which must be used for the betterment and growth of that educational institution", the court explained. However, it pointed out that "imparting of education is essentially charitable in nature" and that there should be "no profiteering" or a system to collect "capitation fees".

It suggested that the States set up two committees each, one to propose the fees that could be collected, and the other to oversee the admission tests and procedures and ensure that they are administered in a fair and transparent manner.

The first committee comprising five members, including a chartered accountant, professionals and bureaucrats and headed by a Retired High Court Judge, was to decide whether the fees proposed by an institute "is justified". The court had said that the fees fixed by the committee should be binding for a period of three years, at the end of which the institution could seek a revision. Any amount charged over and above the fee fixed by the committee was to be considered as "capitation fee", and would lead to loss of recognition and affiliation to the university.

The Bench also said that admissions had to be based on common entrance tests. "We thus hold that the management could select students, of their quota, either on the basis of the common entrance tests 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, for example, medical, engineering or technical," the Bench said. If any professional college chose not to admit students from the common entrance test (CET) conducted by the association, then that college had to admit students from the CET conducted by the State, it said.

The second "permanent" committee that the Bench proposed would ensure that the tests conducted by the association of colleges are fair and transparent. The committee should be headed by a retired judge of the High Court, nominated by the Chief Justice of that State, and should include a doctor or an engineer of eminence, the Secretary of the State in charge of Medical or Technical Education, an independent person of repute in the field of education and one of the Vice-Chancellors of the universities in that State as members. It will have the powers to monitor the entrance tests conducted by the association, including the power to call for the proposed question papers, know the names of persons setting the papers and the examiners, and check the method adopted to ensure that the question papers are not leaked. The committee shall also have the power to permit an institution, "which has been established and which has been permitted to adopt its own admission procedure for the last, at least, 25 years", to adopt its own admission procedure, the court said.

These are among the major observations of the Bench in the Islamic Academy of Education case, which together form a sort of evolving standard, against which the schemes of the various States to regulate admissions and fees in self-financing professional colleges are compared in order to determine their affinity to the constitutional provisions. But the Kerala government is trying to overrule the court's judgment itself through many of the provisions of the Bill proposed to be introduced in the State Assembly soon. However, the extent to which the State can regulate admissions and the fee structure in private, unaided professional colleges continues to be a matter of convenient interpretation, even after several interventions by the Supreme Court.