Service or business?

TWO recent judgments of the Supreme Court on medical education, one on the National Eligibility Cum Medical Entrance Test (NEET) and the other on the additional intake of students in Rohilkhand Medical College in Bareilly, Uttar Pradesh, reflect the divided thinking of the apex court on the conduct of private professional education in the country. While the NEET judgment champions the cause of unfettered freedom of private entrepreneurs in professional education, the Rohilkhand judgment underlines the need for regulating such freedom in the wider interests of quality in medical education. Ironically enough, both judgments trace their arguments to the Supreme Court judgment in the TMA Pai case (2002). The 11-judge Bench’s landmark judgment in the TMA Pai case in its attempt to balance the claims of private entrepreneurs for running a business in education with those and of society at large for equity and excellence in professional education has given adequate arsenal to both claims and resulted in endless litigation and contradictory verdicts.

Broadly speaking, in the judicial debate over social control over professional education and the entrepreneurial rights of private players who run professional educational institutions there are two categories: one that gives primacy to the educational rights of citizens and the other that gives primacy to the entrepreneurial rights of managements in the business of education.

The Supreme Court judgment in Mohini Jain (1992) gave the widest amplitude to the fundamental right to life by extending it to cover the right to education at all levels. The Unnikrishnan judgment (1993), while restricting such right to education up to 14 years of age, continued to define education at all levels as a charitable activity. It ruled that profiteering in education was unconstitutional and sought to restrict the discretion of managements in admissions and in formulating the fee structure with the objective of enlarging the rights of the people. The TMA Pai judgment declared unconstitutional the meritorious seat-sharing arrangement and equitable fee structure evolved by Unnikrishnan . The argument was that the scheme was counterproductive as it would, in practice, benefit only the urban rich.

TMA Pai did not, however, evolve a new scheme that would ensure admission on merit and on the basis of social justice and the payment of fee according to the financial capacity of the student. Instead, it threw open the field of professional education to educational entrepreneurs by redefining professional education as a part of the right to practise a profession/trade/business. The “user pay” principle was extended to the field of higher education and was also given constitutional protection. A specious distinction was made between profiteering and profit-making. While the former was unconstitutional, the latter was held to be perfectly legal.

While giving private entrepreneurs the freedom to device and administer their own admission procedure, TMA Pai also held that the entire process should be fair, transparent and non-exploitative. However, unlike Unnikrishnan , TMA Pai did not evolve any foolproof mechanism for implementing its directions, with the result that the pious exhortations in the judgment were seldom put into practice.

The reinterpretation of the Constitution in favour of the rich is in keeping with the philosophy of capitalist globalisation, providing unfettered “freedom” to finance capital. The Central Government, while paying lip service to the cause of equitable educational opportunities, has so far resisted the demand for a comprehensive law that will ensure social control over professional education. At the same time, it has kept up the pretence of addressing the issue seriously by circulating drafts of proposed pieces of legislation, one after the other.

The Centre’s latest move is the introduction of the “The Prohibition of Unfair Practices in Technical Educational Institutions, Medical Educational Institutions and University Bill, 2010” in both Houses of Parliament. The provisions of the Bill are not comprehensive enough to ensure equity and excellence in medical education. It is intended only to provide transparency in the business of education through mandatory disclosures. But the business lobby, which opposes even a semblance of regulation in this sector, is so powerful that no further follow-up action has been taken to enact the Bill. The concerns that the Supreme Court expressed in Rohilkhand Medical College have to be understood in this context. The apex court observed as follows:

“The CBI’s investigation reveals a sorry state of affairs, which is an eye-opener for taking appropriate remedial measures in future so that medical education may attain the goals envisaged by the IMC [Indian Medical Council] Act and the Regulations and serve the community. [The] CBI had to charge-sheet none other than the then Union Minister of Health and Family Welfare itself, which depict how the educational system in this country is deteriorating. Many of regulatory bodies like MCI, AICTE, UGC, etc., were also under serious cloud in the recent years. [The] CBI, in the year 2010, had to arrest the president of the MCI for accepting [a] bribe to grant recognition to one medical college in Punjab. Later, it is reported that the CBI found that the president of the MCI and his family members possessed disproportionate assets worth of [Rs]24 crores. We have referred to these instances only to indicate the falling standards of our educational system at the highest level, sometime even at the level of the Central government, making a serious inroad to the right to life guaranteed to the citizens of the country under Article 21 of the Constitution....

“Mushrooming of [a] large number of medical, engineering, nursing and pharmaceutical colleges, which has definitely affected the quality of education in this country, especially in the medical field, calls for serious introspection. Private medical educational institutions are always demanding more number of seats in their colleges even though many of them have no sufficient infrastructural facilities, clinical materials, faculty members, etc. Reports appear every now and then that many of the private institutions which are conducting medical colleges are demanding lakhs and sometimes crores of rupees for MBBS and for post-graduate admission in their respective colleges. Recently, it is reported that [a] few MBBS seats were sold in private colleges of Chennai. We cannot lose sight of the fact that these things are happening in our country irrespective of the constitutional pronouncements by this court in TMA Pai Foundation that there shall not be any profiteering or acceptance of capitation fee, etc. Central Government, Ministry of Health and Family Welfare, Central Bureau of Investigation or the Intelligence Wing have to take effective steps to undo such unethical practices or else self-financing institutions will turn to be students financing institutions.”

In the absence of a comprehensive constitutional amendment that redefines education at all levels as a purely charitable activity and an enabling Central legislation that empowers States to enact legislation to bring about social control on professional educational institutions, the legislative attempts in many States have not been entirely successful. The courts have, citing TMA Pai , struck down such laws either in part or in full as ultra vires the Constitution.

The Kerala legislation

The Kerala legislation of 2006 was a comprehensive attempt to bring about equity and excellence in professional educational institutions, both minority and non-minority. Though widely acclaimed by the public, many provisions of the Act, including the one for the determination of minority institutions, were struck down by the court. But even the truncated Act has brought about some order and justice in the chaotic field of professional education in the State.

The admission and fee regulatory committees set up under the Act have been effective in curbing corruption and nepotism in admissions and to a limited extent the levy of capitation. Non-transparent admission tests conducted by managements were struck down more than once and managements were compelled to admit students on the basis of tests conducted by the entrance commissioner under the supervision of the committee.

Meanwhile, the corporate lobby has been active in opening up education at all levels for profiteering. Starting with the Ambani-Birla Report, it has come out with several policy initiatives, all of which have got the widest possible support from the Planning Commission, the Central government and regulatory bodies like the UGC. The latest initiative in this regard is the N.R. Narayana Murthy Committee Report, in the making and implementation of which the Planning Commission has collaborated actively with the corporate lobby. The committee was constituted in January this year to study and recommend steps for increasing commercially viable corporate participation in higher education and research. The Planning Commission released the report in May and is taking steps for the immediate implementation of the recommendations.

In this context, the expression of shock and disappointment by Minister for Health and Family Welfare Ghulam Nabi Azad on the NEET verdict can only be viewed as a publicity stunt to contain the public outcry against the judgment. The proposal for a review petition confirms the suspicion that the government is trying to buy time and prevent the enactment of a comprehensive parliamentary legislation. The judgment in the Rohilkhand Medical College case, which implicates the then Health Minister as a party to the fraud perpetrated by the college in question, is further proof of the real interests of the powers that be.

It is clear that justice cannot be done in matters of admission and fee structure in professional education as long as TMA Pai rules the ground. A constitutional amendment reversing TMA Pai , which defines education as part of a profession/business/trade, and restoring the constitutional ethos of education as a charitable activity alone will ensure equity and excellence in professional education. But that would involve a reversal of the policies of capitalist globalisation initiated in 1991, which would upset the Ambani-Birlas and the Narayana Murthys.

M.A. Baby, formerly Education Minister of Kerala, is a Polit Bureau member of the Communist Party of India (Marxist).