When the Chief Justice of India, R.C. Lahoti, remonstrated with Parliament last month for its ‘‘unwarranted criticism’’ of the recent Supreme Court order ending caste-based quotas in privately run professional institutes, it was a cry from the heart. After all, the court had formulated the guidelines for the administration and admission policies of technical colleges after debates and deliberations spanning over a quarter century.The seven-judge Supreme Court bench which pronounced its far-reaching verdict last month was simply interpreting the judgment of the eleven-judge bench headed by former Chief Justice B.N. Kirpal in 2002. The same issues had been earlier debated before a five-member bench of the highest court in the land. The genesis of the debate goes back much earlier. St Stephens College, Delhi, appeared before the courts to defend its admission policies. And some 20 years earlier, St Xaviers College, Ahmedabad, had questioned the right of Gujarat University to interfere in the hiring and firing of professors to the college. Not months, but years of the Supreme Court’s time have been spent in discussing threadbare questions concerning the constitutional rights of minority, non-minority, aided and unaided private institutions of higher education. And yet MPs have decided practically overnight that the latest judgment should be overturned by introducing a populist bill in Parliament in the next session.The real issue at stake is not about caste quotas and the need for affirmative action for the underprivileged classes which should be the responsibility of government institutions or government-aided colleges. It is the right of an individual or society to run an educational institution without being hamstrung by government interference, a fundamental right guaranteed under Article 19 (1)(g) of the Constitution.In an era when most areas of the economy have opened up to the private sector, resistance to liberalise the field of education continues. The opposition is based on the belief that running an educational institution is basically a matter of charity or philanthropy and not a business. Profit should not be a motive. Using the argument that education must be distributed equally and widely as far as possible in society, the state has maintained a stranglehold over higher education in the country. This in turn has resulted in falling educational standards, archaic systems, widespread corruption in entrance tests and string pulling in admission procedures.In the name of equal opportunity, standards have fallen to meet the requirements of the lowest common denominator. The disadvantages of institutions held to ransom by government red tape, inefficiency and populism are evident in the slipping standards of the once premiere colleges in the country — Elphinstone College, Mumbai, Presidency College, Calcutta, and Presidency College, Chennai. On the other hand, their privately run contemporaries such as St Xaviers, Mumbai, St Stephens, Delhi and Loyola College, Chennai have managed to hold their own in a changing environment.Private colleges have to be sensitive to market forces. Last week I attended an award ceremony organised by a fairly new private business management college, which in the span of less than a decade has increased its student strength from 19 to 1000 students. The ceremony in its spacious well-equipped campus was an eye opener. The college had flown down a leading academician from abroad as its chief guest. The dean announced proudly that his business school had tie-ups with half a dozen colleges outside the country and professors from foreign universities had contributed to its journals. Representatives from some four dozen leading Indians business houses were invited to receive awards of excellence. Traditional educationists might sniff at such brash, go-getting and networking tactics, but it has paid dividends. All the college’s graduates get placements and there is a huge demand for admission, even if it is affiliated to a minor university in UP.So what does all this have to do with education quotas? The reason there has been a spurt of private players in the higher education arena is simply because the evolving law has given them the leeway to operate freely, a right which was earlier reserved only for institutions run by minorities who had special protection under Article 30 of the Constitution.Judicial pronouncements tend to reflect society’s changing outlook. Thus the judgment of the Kirpal bench in 2002 which observed that ‘‘it is well established all over the world that those who seek professional education must pay for it’’ is very different from Justice Jeevan Reddy’s position a decade earlier that every rich student should subsidise a poorer one and the state must control at least 50 per cent of the admissions in technical colleges. (Ironically, the Jeevan Reddy formula for admissions actually made poor students subsidise richer ones. Contrary to the judge’s assumption in most cases it was the poor students who paid for the more expensive seats since the merit based placements were monopolised by the rich students who had the advantage of a better education).In its latest judgment, the Supreme Court has held that all unaided professional colleges should be granted a certain latitude in deciding admissions and fee structure, subject to reasonableness and transparency of procedure, depriving state governments, particularly in South India, of an important source of power and patronage. For instance, in Karnataka under the prevailing system, 75 per cent of the admissions in unaided colleges are regulated by the state, on the basis of a variety of quotas. The MPs who are keen to enact fresh legislation to reverse the court’s decision and turn the clock backwards seem to forget that the court has given its ruling in the light of its interpretation of Article 19 (1) (g) of the Constitution. To pass a bill which attempts to override this fundamental right will inevitably lead to a fresh round of lengthy litigation. The anguish of the judges is understandable.
