The Hindu : Courts & minority education

Online edition of India's National Newspaper
Tuesday, Dec 17, 2002

Opinion

Opinion - Leader Page Articles

Courts & minority education — II

By V.R. Krishna Iyer

Social justice and equal opportunity for educational excellence at all levels have gone by default.

SOMETIMES FAULTLESS logic may falter on fundamentals and that, I suspect, has partially vitiated the Court's jarring slant towards unaided institutions. The elite in India, since 1991, is obsessed with privatisation and globalisation in an almost totalitarian fashion. This bias is apparent in the unconcealed observation of the Kirpal judgment. I quote: "Private education is one of the most dynamic and fastest growing segments of post-secondary education at the turn of the twenty-first century. A combination of unprecedented demand for access to higher education and the inability or unwillingness of the Government to provide the necessary support has brought private higher education to the forefront. Private institutions, with a long history in many countries, are expanding in scope and number and are becoming increasingly important in parts of the world that relied almost entirely on the public sector."

Look at the ideological shift of the Court: "Not only has demand overwhelmed the ability of the Governments to provide education, there has also been a significant change in the way that higher education is perceived. The idea of an academic degree as a `private good' that benefits the individual rather than a `public good' for society is now widely accepted. The logic of today's economics and an ideology of privatisation have contributed to the resurgence of private higher education, and the establishing of private institutions where none or very few existed before." (Paras 48 and 49)

Commercialisation of education is the bete noire in a socialist democratic republic that India is under its great Preamble. Fortunately, the Court has provided for conditions of transparency and merit. The Court happily frowns upon preference being shown to less meritorious but more influential applicants. Why? Because, "excellence in professional education would require that greater emphasis be laid on the merit of a student seeking admission and appropriate regulations for this purpose may be made..." This lovely note notwithstanding, the privatisation predilection is an ideological deviation. The Court takes the view that in the case of unaided private schools maximum autonomy has to be with the management including the fees to be charged. The Court holds a brief in favour of private schools although it is a notorious racket that unaided private schools and colleges, with rare exceptions, are a law unto themselves and a trade in the matter of fees, admission, administration and the like flourishes.

"At the school level, it is not possible to grant admissions on the basis of merit. It is no secret that the examination results at all levels of unaided private schools, notwithstanding the stringent regulations of the governmental authorities, are far superior to the results of the government-maintained schools. There is no compulsion on students to attend private schools. The rush for admission is occasioned by the standards maintained in such schools, and recognition of the fact that state-run schools do not provide the same standards of education. The state says that it has no funds to establish institutions at the same level of excellence as private schools, it disables those schools from affording the best facilities because of a lack of funds. If this lowering of standards from excellence to a level of mediocrity is to be avoided, the state has to provide the difference which, therefore, brings us back in a vicious circle to the original problem, viz., the lack of state funds. The solution would appear to lie in the states not using their scanty resources to prop up institutions that are able to otherwise maintain themselves out of the fees charged, but in improving the facilities and infrastructure of state-run schools and in subsidising the fees payable by the students there. It is in the interest of the general public that more good quality schools are established; autonomy and non-regulation of the school administration in the right of appointment, admission of the students and the fee to be charged will ensure that more such institutions are established. The fear that if a private school is allowed to charge fees commensurate with the fees affordable, the degrees would be `purchasable' is an unfounded one." (Para 61)

Many Government colleges, the Court forgets, have been a pride in the field. Many professors in Universities have won laurels. Many students from University and Government colleges, professional or other, have established their merit. To generalise in favour of private institutions is to succumb to contra-constitutional prejudice when the winds of privatisation are blowing with propaganda power. My hunch is that while Justice Jeevan Reddy in Unnikrishnan's case castigates commercialisation of education, Justice Kirpal in the T.M.A. Pai case, reverses the process and advocates the cause of the private sector. Profiteering, no. Profit-making, yes. "This partition do their bounds divide."

A reasonable surplus for future expansion is, in the apex court diction, permissible profit but not profiteering. So students are to subsidise the educational charity out of their poverty. Founders, with philanthropic motivation and eleemosynary reputation must rely on social sources, donative channels and business barons for handsome grants, not fleece the poor parents who borrow for their child's future nor squeeze young students with educational hunger and meritorious talent. The vast poor have no claim to judicial compassion. That is privatisation and market methodology exciting for the affluent but the brilliant indigents are priced out of the educational bazaar!

Alas, unaided minority schools from the L.K.G, U.K.G and the very first standard have become a ubiquitous business with heavy capitation fees under various dubious disguises. Merit is measured by money and so public morality requires some measure of control. But the Court is inclined to overlook the rampant rage regarding the fee levy and discriminatory dimensions of `free to loot' unaided bodies. Regulation becomes justified not because state grant is given but because public education is a matter of serious social concern, that too, in a socialistic democratic republic. The term capitation fee is more a clever formality because these extra-levies have different terminology to outwit judicial vocabulary. The prescription of transparency and adequate attention to merit in the matter of admission to unaided colleges is more a placebo than an effective panacea.

While overruling Unnikrishnan the court salves its conscience by holding, "however, the principle that there should not be capitation fee or profit theory is correct". How naive to uphold "reasonable surplus to meet cost of expansion and augmentation of facility". The fluid phraseology facilitates exploitation without compunction as if this generation of students must fund future development about which there is no plan, no record, no restraint nor no definite direction, no verification of viability.

There is no gainsaying the fact that social justice and equal opportunity for educational excellence at all levels have gone by default. Of course, globalisation, liberalisation, privatisation and marketisation have captured the Court's notice and the Preamble to the Constitution is de facto judicially jettisoned.

While Unnikrishnan has been extinguished in social philosophy, pragmatic operation and 50 per cent for admission of non-minority students, there is no firm, fool-proof indication, barring vague generalisations, as to what should be a just proportion of non-minority admission. The Court has the last word, but the common people should not have the least word. The classroom, it has been said, shapes the destiny of the nation and education is too serious a matter to be left only to the robed brethren. Our crimson Constitution has a value vision to blink at which is to miss its social mission.

(Concluded)

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