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Act of promise – Frontline

A Kerala Act on self-financing professional educational institutions raises the hackles of many who run such institutions.

R. KRISHNAKUMAR in Thiruvananthapuram

M.A. Baby, Minister of Education of Kerala.-C. RATHEESH KUMAR

THE fate of the new law, the Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-exploitative Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006, adopted by the Kerala Assembly, with determined provisions to curb the profiteering indulged in by private, unaided, minority and non-minority professional college managements, will soon be decided by the courts. Its bold stipulations, which are being challenged by the managements and minority leaders, have already generated a lot of interest and controversy.

For the first time in India, a State law has ventured into the highly volatile turf of defining clear norms to identify a “minority educational institution” and has stirred up a hornet’s nest as it seeks, through several such provisions, to curb the outright sale of professional course seats by managements of self-financing professional colleges.

Curiously, most of the self-financing professional colleges in Kerala are run by a people belonging to the two prominent minority communities, Christians (in most cases) and Muslims (to a lesser extent), who constitute almost 43 per cent of the State’s population. In the five years of their existence, many of these college managements (with a few notable exceptions) have reneged on promises made to the government and utilised every legal loophole to hoodwink the state in order to make a roaring business out of college admissions.

The Act, introduced by the new Left Democratic Front (LDF) government, is in a way a sharp reaction to such profiteering. Self-financing professional colleges had mushroomed in Kerala only since 2001, drawing strength from the liberal policy of the previous United Democratic Front (UDF) government of inviting large-scale private investment in professional education.

The new State law has also incorporated the provisions of the 93rd Constitution Amendment Act to provide for the reservation of seats (35 per cent) for socially and educationally backward classes of citizens and for the Scheduled Castes (S.C.) and the Scheduled Tribes (S.T.) in all self-financing professional colleges, except `minority educational institutions’ (as ordained in the 93rd Amendment passed by Parliament to overcome the August 2005 ruling of the Supreme Court in the P.A. Inamdar vs State of Maharashtra case. The seven-Judge ruling of the court clarified previous judgments such as the October 2002 T.M.A Pai Foundation case and the August 2003 Islamic Academy of Education case, which had declared that the state cannot impose its policy of reservation on unaided private colleges, including professional colleges.)

The net result of the new law is that if the self-financing college managements that had a free run in the matter of admission of students for over five years fail to obtain for their college the tag of a “minority educational institution”, they will now have to earmark 10 per cent of the total seats for S.C. and S.T. candidates and 25 per cent for Other Socially and Educationally Backward Classes; and “reach a consensus based on mutual agreement with the government” to provide 3 per cent of the seats for physically challenged persons and 12 per cent for other (economically weaker) sections of society not covered above on a “merit-cum-means basis”.

They will also have to set apart 18 per cent of the seats for students from the general merit list and 2 per cent for students with outstanding records in sports and the field of culture.

Of the remaining 30 per cent of the seats, the law allows both non-minority and minority unaided institutions to fill up to 15 per cent of the total seats with candidates from the non-resident Indian (NRI) category and up to 15 per cent from “privilege seats”, from its definition, literally, a “management quota” of seats but one that also should be filled up from the common list prepared by government, “on the basis of inter se merit from the applications submitted by the management”.

The Act prohibits the collection of capitation fee and does not allow the managements to conduct their own separate entrance examination as they had done in the past few years.

Admission in all categories except NRI seats in all professional colleges are to be based on the common entrance test conducted by the government followed by counselling through a single-window system as per the government merit list. A seven-member `admission supervisory committee’, headed by a retired Supreme Court or High Court Judge, is to supervise and guide the entire admission process to ensure that it is “fair, transparent, merit-based and non-exploitative”.

Any violation of these provisions of the Act is to be decided by the committee and would invite a fine of up to Rs.10 lakhs, withdrawal of university affiliation or recognition for the college or a particular branch of study, cancellation of the results and the debarring of candidates involved from appearing in any further examination.

Well in advance of the commencement of every academic year each unaided professional college is also required under the Act to submit its proposed fee structure before a five-member committee headed by a retired Supreme Court or High Court Judge for its satisfaction that the proposals do not amount to profiteering or charging of capitation fee. All managements can collect only a year’s fee from a candidate in an academic year and the fee finally determined by the committee is to be binding on the managements for three years.

All unaided professional colleges are also required under the Act to provide freeship, or full or partial remission of tuition fee to S.C., S.T. and other socially, educationally and economically backward students to the extent prescribed by the government to a minimum of 50 per cent of the students admitted, utilising the surplus funds (collected over and above the fee fixed for other students) generated from NRI seats. The Act also envisages severe punishment or even imprisonment of one to three years and a fine of not less than Rs.50 lakhs for those receiving conviction for contravening the provisions of the law.

It is such stringent provisions that has made many persons running professional colleges in Kerala today seek “minority professional college or institution” status for their institution, or protection under Article 30(1) of the Constitution which guarantees the right of minorities to “establish and administer” educational institutions “of their choice”. Such status would have originally allowed them to overcome many hurdles posed by the new law to large-scale profiteering, including, for example, the requirement that 35 per cent of the seats in every course should be set apart as reserved seats for S.C. and S.T and backward class students.

But, no doubt, wiser from the sheer profit-mongering indulged in by a large number of the so-called minority managements in the past, the LDF government chose to give a new definition to the term “minority professional college or institution” in the new Act.

In the absence of any explanation of the term “minority” in the Constitution itself, from various court rulings interpreting Article 30(1) (which says “All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice”), it had popularly come to mean that in order to claim the benefit under Article 30(1), the community needs to show only that (a) it is a religious or linguistic minority and (b) that the institution was “established’ by it. It had also come to mean that the words “established” and “administered” have to be read conjunctively for claiming minority status for an institution.

This loose interpretation had served well all these years when minorities, especially in Kerala, were in the forefront of expanding educational opportunities and no one really bothered about gaining “minority status” for their institution. Things changed with the advent of self-financing professional educational institutions, which threw open a world of opportunity for the college managements to mint profits utilising the huge demand for professional course seats in the State.

In fact, in Parliament during the recent debate on the 93rd Constitution Amendment Bill which made it mandatory for all institutions of higher learning, except minority institutions, to reserve seats for students belonging to the weaker sections, all political parties repeatedly stressed the need for a clear definition of the term “minority educational institution”. Even the National Commission for Minority Educational Institutions Act, 2004, which was subsequently amended in March, defines “minorities” only as “a community notified as such by the Central Government” and a “minority educational institution” as “a college or an institution (other than a university) established or maintained by a person or a group of persons from amongst the minorities”. This definition is widely considered a violation of the constitutional provision further as it dilutes the requirement that the institution ought to be established and maintained by the person or persons belonging to the minority for it to be accorded the status of a “minority institution”.

Perhaps for the first time, therefore, the Kerala Professional Colleges Act, 2006, prescribes three conditions of “demographic equivalence” between the minority community to which the college or institution belongs and the “non-minority community of the State taken as a single unit” for the college to be accorded recognition and conferred the status of an “unaided minority professional college or institution”:

One, the population of the “linguistic or religious” minority that runs the professional college should be less than 50 per cent of the total population of the State. Second, the number of professional colleges or institutions run by the minority community (to which the college that seeks minority status belongs) should be proportionately smaller than the number of professional colleges or institutions run by the non-minority community in the State. Three, the number of students belonging to this particular minority community in all professional colleges in the State should be smaller than the number of students belonging to the non-minority community undergoing professional education in all professional colleges in the State.

No wonder none of the managements that were raising the clamour for a “minority status” to overcome the new barriers against free sale of professional college seats today feel enthused by such a definition in the new law.

In its preamble, the Act of 2006 explains the rationale behind the three conditions for deciding minority status for professional colleges, especially in Kerala where, for example, 36 of the 49 engineering colleges, six of the nine medical colleges and a similar majority of colleges offering courses in other professional branches such as dentistry, pharmacy, nursing, teacher training, Ayurveda and homeopathy are run by a person or a group of persons from the minority communities.

Referring to the Supreme Court’s interpretations, the preamble says, among other things, that “the essence of Article 30(1) is to ensure equal treatment between the majority and minority institutions and no one type or category of institution should be disfavoured or, for that matter, receive more favourable treatment than another, since laws of the land, including rules and regulations must apply equally to the majority institutions as well as the minority institutions”.

Speaking at a seminar in Thiruvananthapuram soon after the Bill became law, Education Minister M.A. Baby said the government believed that there was a clear distinction between the rights of minority communities to set up and run institutions of their choice and an institution run by such a community getting minority status. He pointed out that though Christian missionaries and other community-based organisations had played a prominent role in spreading educational opportunities in Kerala, none of them had so far wanted minority status for their institutions. The real intention behind some managements now wanting minority status for their institutions is suspect, as the law does not prevent any minority community from establishing any number of institutions, he said.

The Kerala Catholic Bishops Council has described the new law as the biggest challenge that Christians have had to face in recent times and is already on the warpath along with several Christian management associations that have approached the courts challenging the provisions of the Act. Leaders of various Christian denominations, which met under the aegis of the Inter Church Council for Education, decided to fight the provisions of the law jointly, which they say has robbed the minorities of their constitutional rights. They have also ignited a fear that the new law would eventually come to have its influence over other areas such as school education in such a way as to impact adversely the concept of minority rights as a whole.

The Church leaders also took their grievances to New Delhi. They met the President, the Prime Minister and the Human Resource Development Minister and launched awareness campaigns. They even decided to read pastoral letters against the law during Sunday prayers, creating the impression, initially at least, that they would not hesitate to join hands with Muslims and be on the path of yet another “liberation struggle” in Kerala (on the lines of the one launched by mostly Christian managements with support from other communities against the first Communist government under E.M.S. Namboodiripad for its policies that sought among other things, to curb the rampant commercialisation of education in the late 1950s).

Christian minorities traditionally have been in the forefront of spreading educational opportunities in the State and perhaps as a result the community is today far ahead of other communities in educational, economic and social spheres. It is natural that such community members could immediately seize the opportunity when the State decided to open the doors wide for self-financing professional educational institutions.

The crucial question is whether such an edge in educational opportunities and economic progress is offering some among them an unequal opportunity for blatant profiteering and exploitation of the large majority of students belonging to all communities in the name of minority rights. This is the problem that the government seems to have tried to address.

There is concern that in its eagerness to curb the exploitation of students, the government may have been forced to see all minority managements as culprits (while indeed a handful are exceptions) and has perhaps stepped on the rights guaranteed to the minorities by the Constitution to “establish and administer” educational institutions “of their choice”.

Curiously, while the Assembly was discussing the new law, the National Commission for Minority Educational Institutions, in what is generally seen by the government as a violation of the amended Central Act that should have guided it, accorded sanction to seven self-financing professional colleges in the State, ignoring the government’s plea to wait for the provisions in the new State law before it decided on minority status for such institutions.

It is going to be a long-drawn-out legal battle, if, as is generally believed, the issue is not settled through a Constitution amendment to overcome the uncertainties created by a series of Supreme Court judgments that have followed the Unnikrishnan case.

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