THE 1992 judgment in the Mohini Jain case by Justice Kuldip Singh – which was against the practice of capitation fee and which held that education was a fundamental right enforceable by a court – came into direct conflict with the objectives of the government as outlined in the National Education Policy of 1986. For, when capitation fee cannot be collected, the state becomes responsible for providing education. According to senior advocate K. Chandru, when the conflict came to the fore in the Unnikrishnan case (1993), the Judge performed a balancing act in an attempt to resolve the conflict.
“In the Unnikrishnan case, Justice Jeevan Reddy read the Education Policy and at the same time upheld the statement of Kuldip Singh in the Mohini Jain case, in which he said that the Constitution provided for free universal education only up to 14 years of age. This means school education up to the 10th Standard stage only. Beyond that it is not possible for the state. Therefore you have got to provide the private entrepreneurs. When a private entrepreneur comes, it is not a trade or a business. He also does a state function; it is adjunct to the state function. Therefore we should evolve a scheme by which these things can be regulated. So, a scheme was framed for providing “free seats” and “payment seats”. Capitation fee was held to be bad. At the same time private entrepreneurs are not running a trade or a business. So, the scheme provided for an element of social justice on two accounts; one is that a “payment seat” person pays not only for himself because he gets “out of turn” entry. He also pays for a “free seat”… .
“Reservation was also a criterion by which, to an extent, one can enter the “free seat” category. In the “payment seat” category the managements could have their say in the matter of collection of fee, which, however, was regulated by the state. The deregulation is only in terms of the state funding in these institutions.
“The Unnikrishnan scheme faced stiff resistance from all quarters, but it worked satisfactorily from 1993 to 2003. But two things happened. One is, the minority issue and the minorities’ right to admission came under severe review. Because in St. Stephen’s College vs University of Delhi (1992) they said that for 50 per cent of the seats they can admit minorities. So the same Unnikrishnan case Judge made a reference to a seven-member Bench with reference to the right of the minorities to admit under Article 30(1).
“But other people thought otherwise. For example, a number of self-financing institutions – actually it is wrong to call these institutions self-financing because they have taken public money and are also collecting money from students. They are not state-funded and so “unaided” – began lobbying. There are three groups: religious denominational groups from Karnataka, then religious minority groups from some other States, and then the other group, of powerful liquor barons, people who are enjoying the fruits of these new institutions. The matter was subsequently referred to a 11-member Bench, which, on October 31, 2002, overturned the Unnikrishnan scheme.
“A number of State governments and also the Central government run by a party which earlier did not entirely agree with the New Education Policy and attacked it, had supported the dismantling of the Unnikrishnan scheme. It was rather a collaborative effort by State governments, private entrepreneurs and the Union government. This was the starting point of the dismantlement. So, their first attack was that the Unnikrishnan scheme was based on some “misconceived” socialist principle. This is something like a socialist regulation. So, that should go. What is required is deregulation. What is required is disinvestments, allowing private investment.
“So the process started by Rajiv Gandhi with the National Education Policy has come a full circle. It is to say that the state is totally withdrawing from higher education. At the same time they say `we are responsible for primary education’. So, the state’s withdrawal from its commitment to higher education, whether it is engineering or medicine or whatever it is, was total with the NDA (National Democratic Alliance, the ruling alliance at the Centre) taking this stand.
“The only reference before the 11-Judge Bench was the content of Article 30 (1). At the same time, the demand from outside was that if minorities have the right, why not the non-minorities? This fitted into the Hindutva agenda. That the minorities have better rights than the majority is one of the powerful slogans from outside. They are not even for having a Minorities Commission. They were talking of only a Human Rights Commission.
“Their only argument was, `You cannot allow this country to be run by the minorities.’ This was in tune with the agenda of the present government. Attorney-General Soli Sorabjee, , who had earlier appeared for many of these minority institutions, including the St. Xavier’s College case of 1974, also appeared in this case. The government was not satisfied with his submission before the Bench. They appointed a Solicitor-General, Harish Salve, who, according to them, truly represented the Central government. When there was a conflict, which statement is the Central government’s? The Cabinet endorsed Harish Salve’s statement, not Soli Sorabjee’s.
“What happened was that the Bench created a reference. They made additional issues. The additional issues, which they framed, were not part of the original reference. So, by consent of the parties, the court gave itself new issues, which they were bound to answer. In the final process they answered the additional issues and not the original issues… . The parties agreed for a common reference, the reference being that if I am allowed to operate an institution on my own, where is the question of regulation? So deregulation, especially in the matter of admission, which is a crucial thing in any educational institution and secondly the collection of fees.
“These are the two things, which the private entrepreneurs wanted, the mutt heads of Karnataka wanted, the religious fundamentalists wanted, and they have done it. In the judgment one sentence is significant. `All the parties have agreed that the Unnikrishan scheme is unconstitutional.’ It was based upon `socialist notions, which have no place. So, we are holding it unconstitutional’. And hence, the Unnikrishnan judgment goes. This is the basic purpose. At the same time, the people may find fault with them. Therefore, they said, that portion of the Unnikrishnan judgment which guaranteed education up to the school level would stay.”