Cover Story

Licence-permit-quota blitzkrieg dismays Indian academia

At a juncture in the nation’s history when liberalisation and de-control of Indian industry has enabled it to record unprecedented growth and development, a strong contrary current is imposing the discredited licence-permit-quota regime upon Indian education. Dilip Thakore reports

With his term as a member of the Rajya Sabha due to end this month (February) and the prospect of re-election clouded by uncertainty, Union human resource development minister, Arjun Singh (76) has initiated a burst of hyperactivity within Shastri Bhavan, New Delhi in which the ministry is housed. Unfortunately the broad current of hyperactivity within this vitally important ministry engaged in mapping the education and future of the contemporary world’s youngest population — 415 million Indians are below 18 years of age — runs contrary to the liberalisation and deregulation policies initiated in 1991 which have pitch-forked the Indian economy into the 6-7 percent annual rate of growth orbit, among the highest worldwide.  

Across the country, academics, the liberal intelligentsia and judges of the Supreme Court are voicing growing dismay that the control and command regime which laid Indian industry and agriculture low for over four decades during the licence-permit-quota socialist era, is being imported into India’s education sector. In particular there is increasing disappointment within Indian academia that the HRD ministry under the Congress-led United Progressive Alliance (UPA) government which was unexpectedly voted to power in the general election of May 2004, has proved to be as close-minded and interventionist as it was under Dr. Murli Manohar Joshi, the notoriously imperious HRD minister of the predecessor BJP-led National Demo-cratic Alliance government (1999-2004).

Rising disappointment and dismay within the intelligentsia about the 20-month-old UPA government’s — and particularly Arjun Singh’s — record in this vitally important ministry is not unwarranted. Singh’s first initiatives to undo the damage caused by Joshi during his five-year tenure as the undisputed master of the HRD ministry were received with great relief and even acclamation.

The good beginning included reviving the moribund 71 member Central Advisory Board of Education (CABE); setting up high-powered committees to review and rewrite history and social science school textbooks into which Joshi and his handpicked chairman of NCERT (National Council of Education, Research and Training) Dr. J.S. Rajput had infiltrated right-wing Hindu propaganda and distortions; sacking Rajput and several other academically unqualified Joshi cronies appointed as heads of ICHR (Indian Council for Historical Research) and ICSSR (Indian Council of Social Science Research).

Simultaneously to his credit, Singh reaffirmed the new government’s commitment to the NDA’s Sarva Shiksha Abhiyaan or Education for All initiative which makes it mandatory for government to provide free and compulsory elementary education to all children six-14 years of age. Moreover commendably, he played a major role in ensuring that the Union Budget 2005-06 was India’s most pro-education budget ever. And last August when India’s first National Knowledge Commission was constituted under the chairmanship of Satyen (‘Sam’) Pitroda, the architect of India’s amazing telecom revolution, it had the full backing of Arjun Singh.

However after a good beginning in the HRD ministry, Singh — a self-confessed socialist of the Nehruvian mould — has reportedly begun playing populist politics to shore up his base and standing within the Congress party. According to party insiders Singh is well past the rigours of a ministerial job and frequently falls asleep during important meetings and briefings, and has been receiving broad hints from 10, Janpath (the residence-cum-office of party president Sonia Gandhi) to retire gracefully.

On August 12, in P.A. Inamdar vs. State of Maharashtra (Appeal (Civil) 5041 of 2005) a seven-judge bench of the Supreme Court upheld the extensively deliberated judgement of an 11-judge bench of the apex court in T.M.A Pai Foundation vs. State of Karnataka & Ors (2002 8 SCC 481) affirming the right of minority and non-minority trusts, societies etc to establish and administer education institutions of their choice. The apex court also declared the widely prevalent practice of state governments legislating 50-80 percentage quotas for scheduled castes, tribes and other backward castes in private unaided (financially independent of government) institutions of professional education (medicine, engineering, business management, pharmacy, nursing etc) illegal and unconstitutional. Following this verdict, Singh reportedly discerned a perfect opportunity to project himself as the champion of minorities.

The consequence is the Constitutional (104th Amendment) Bill, 2005 which pointedly overrules the verdicts of the Supreme Court in the TMA Pai and Inamdar cases. This Amendment Bill was rushed through Parliament and hurriedly passed (by unanimous acclamation) on December 21. The Bill adds a new clause to Article 15 of the Constitution which prohibits discrimination on grounds of religion, race, caste, sex or place of birth subject to the States’ right to affirmative action in favour of scheduled castes, tribes or any socially and educationally backward classes of citizens (Article 15(4)). Says the newly added Article 15 (5): "Nothing in this Article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any special provision by law for the advancement of any socially and educationally backward classes of citizens or for Scheduled Castes and Scheduled Tribes insofar as such special provisions relate to their admissions to educational institutions including private educational institutions, whether aided or unaided by the State, other than minority institutions referred to in clause (1) of Article 30."

In TMA Pai (2002) and Inamdar’s case (2005) the apex court ruled that imposing government mandated quotas upon private unaided institutions of professional education is tantamount to unreasonable interference with the fundamental right of citizens engaged in the "occupation" of providing education conferred by Article 19 (1) (g). In short, by enacting Article 15(5) Parliament has made Central or state government legislation related to reservations for SCs, STs and/or "any socially and educationally backward classes" in education institutions non-justiciable. However religious and linguistic minority education institutions are exempt from the obligation of reserving state-mandated quotas for scheduled castes, tribes and other backward castes or communities.

Following the latest constitutional amendment, the road is clear for the Central and/ or state governments to re-impose caste and other quotas in private unaided institutions of professional education as also to determine the tuition fees chargeable by them under the Private Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Bill, 2005 which is awaiting parliamentary approval and presidential assent. Moreover a provision made for 25 percent reservation for poor neighbourhood children in class I and thereafter their retention until class VIII in all privately promoted schools under the Right to Education Bill, 2005 (see EW cover story January) will also be beyond the purview of the courts following the enactment of Article 15(5).

"India has about 113 million students between the ages of six and 14 who would qualify for reserved seats. The total number of seats in private schools is one-tenth that. Thus over 100 million reserved category students will be outside the private school system. If so, it will be government and not private schools that will make the difference in bringing disadvantaged groups into the educational net," says Kanti Bajpai, headmaster of the famous Doon School, Dehra Dun writing in the Times of India (January 18).

In short, the priority of the Central and state governments should be to uplift the country’s 1,123,000 government schools rather than encroach upon the administrative and financial indepen-dence of India’s private schools which have done the country proud. But then that would be to take the hard road...

However constitutional law experts are of the opinion that the new Article 15(5) which purports to place government mandated quotas in education institutions beyond judicial purview, may itself be bad in law. This is because when it was finalised in 1950 after protracted and detailed debate in the Constituent Assembly, the Constitution of the Republic of India drew heavily upon the well-established doctrine of the separation of powers. In effect this means that while Parliament is empowered to make laws for national governance, the judiciary has independent power to interpret and strike down parliamentary legislation which violates or abridges any fundamental rights of citizens.

The issue of the extent of the power of Parliament to amend the Constitution was extensively debated in the 1960-70s culminating in the Supreme Court’s judgement in Golak Nath’s Case (1967) which ruled that the fundamental rights endowed upon citizens in Part III of the Constitution cannot be altered or abridged by Parliament. Subsequently in Keshavnanda Bharati vs. Union of India (1973), the brilliant constitutional lawyer the late Nani Palkhivala persuaded the Supreme Court to rule that any legislation passed by Parliament which violates the "basic structure of the Constitution" is bad in law.

"Although Article 15(5) has excluded the jurisdiction of the courts to protect legislation relating to reservation made by the State, i.e the Central or state governments, in education institutions, such legislation can always be legally challenged on the ground that it violates the basic structure of the Constitution by excluding judicial review. With two full-bench judgements of the Supreme Court having ruled that government mandated reservations and quotas in private unaided institutions of professional education abridge fundamental rights of the promoters of such institutions, the legality of contradictory legislation is certainly questionable in the apex court. Unless mutually acceptable seat sharing agreements are negotiated between state governments and private unaided institutions, a spate of writ petitions are certain to be filed challenging the Private Professional Educational Institutions Act and perhaps the Right to Education Bill if they are enacted in their present form," says Aditya Sondhi, a constitutional and corporate law expert who practices in the Bangalore high court. An alumnus of the National Law School University of India, Sondhi also teaches constitutional law at his highly-reputed alma mater.

Unfortunately the damage that the Union HRD ministry under Arjun Singh is inflicting upon the education system is not restricted to the prickly reservations issue. Recently Singh precipitated a huge row in academia by refusing permission to the Indian Institute of Management-Bangalore to establish an offshore campus in Singapore (which was in an advanced stage of negotiation) on the ground that there is unmet demand for IIM education in India. Meanwhile it transpires that an application by IIM-Ahmedabad to establish a campus in Mumbai has been pending without acknowledgement in the HRD ministry for almost a year. Almost simultaneously in mid-January, officials of the Delhi-based All India Council for Technical Education — the technical education supervisory body under the administrative control of the HRD ministry — reportedly swooped down on several respectable B-schools across the country (including the state-of-the-art Indian School of Business, Hyderabad promoted at a cost of Rs. 250 crore in collaboration with the Kellogg and Wharton schools of business), questioning courseware and foreign collaboration agreements.

Against this backdrop of licence-permit-quota-inspector raj back with a vengeance in the education sector, it’s hardly surprising that the relief that educationists and academics experienced after the ignominious exit of former Union HRD minister Dr. Murli Manohar Joshi from Shastri Bhavan following the rout of the BJP in the general election of 2004 (in which thanks to a coalition of students and teachers who actively campaigned against him, Joshi also lost his Allahabad parliamentary seat), has evaporated. Increasingly a consensus is emerging within academia that Singh is cut from the same control-and-command cloth as his predecessor in the vitally important HRD ministry.

In particular there is widespread apprehension about the impact that the 104th Amendment (which gives free licence to state governments to decree caste-based and other quotas) will have upon institutions of professional education promoted at great cost and often with great care, by education entrepreneurs and well-intentioned philanthropists across the country. "The expensive and time-consuming struggle of private trusts, societies and charities to administer our own financially independent institutes of professional education has been continuing for almost two decades. Now after the country’s highest judicial authority — the Supreme Court — has upheld our fundamental right to do so, Parliament and the political class exhibiting scant regard for constitutional propriety has passed the 104th Amendment Bill overruling the considered opinion of two full benches of the highest court. This is a huge setback not only to private education initiatives in India but also to the judiciary and the Constitution. We will go back to the Supreme Court to challenge the legality of the new Article 15 (5)," vows Dr. S. Kumar principal of Bangalore’s highly rated M.S. Ramaiah Medical College and executive secretary of the Consortium of Medical and Engineering Colleges-Karnataka (Comed-K) which represents 179 privately promoted, unaided medical, engineering and dental colleges in the state.

The sentiment that by overruling the considered judgements of the apex court, the UPA government and Parliament in general have committed contempt of the judiciary and the Constitution and transgressed the rules of justice and fair play, is widespread. "As a Muslim minority institution our college is not affected by the amendment. Nevertheless it is improper to pass legislation barring scrutiny of the courts. The Constitution mandates that the Supreme Court has the power to guide the State in policy decisions and that everyone is obliged to abide by its rulings. The court has made the perfectly sensible ruling that the State can impose restrictions on government and state-aided institutions, but exercising control over unaided institutions is unfair and unconstitutional. The consequence of Article 15 (5) will be that 30 percent of students admitted thus far under the open competition category will be most adversely affected as additional seats from this category will be given to students of other backward communities. In short, merit will be given lesser consideration than before," says Dr. S. Armugam an alumnus of IIT-Madras and currently academic director of PET Engineering College, Chennai.

Inevitably there is a dissenting viewpoint. "For several decades we have been admitting 50 percent of our students from scheduled tribes, castes and disadvantaged classes as per the reservation policy of the state government and the reputation of this institute has not suffered in any way. In fact the reservation policy gives us a good mix of students which is an important part of education. If quality education is available only to the affluent sections of society, how can the country progress? When Germany was unified after the fall of the Berlin Wall in 1989, I was in that country at the time and I witnessed how West Germans considered it their duty to help and develop their East German brethren, which they did without much hue and cry. Making a noise about these issues lowers the image of this country in the eyes of the world," says Dr. R.K. Jadhav an alumnus of Bombay University and the Tata Institute of Social Sciences and currently director of Mumbai’s prestigious Jamnalal Bajaj Institute of Management Studies, an affiliate of Bombay University.

Yet it’s hardly surprising that promoters of the large number of private unaided medical and engineering colleges which have sprung up in the southern states in particular are "making a noise" about the Private Professional Educational Institutions (PPEI) Bill. Apart from appropriating 50 percent of available capacity in unaided institutions of professional education, the Bill also provides for fixation of the tuition fees chargeable by them by admission and fee regulatory committees at the Centre (for institutions affiliated to Central universities and deemed universities) or in the states (for institutions affiliated to state universities).

Although merged into single committees to supervise admissions and fees as opposed to two separate committees as recommended by the Supreme Court in Islamic Academy vs State of Karnataka (2003 SCC 697), there’s no doubt that they significantly dilute the right of private managements to "administer" their institutions independently as mandated by Article 30(1) of the Constitution whose ambit was expanded by the apex court in the TMA Pai Foundation and P.A. Inamdar cases to cover non-minority institutions as well. Though s.9(1) of the PPEI Bill enjoins the admission-cum-fees-fixation committees to make provision for "a reasonable surplus required for growth and development of the professional institution", fee fixation committees set up in the wake of the Islamic Academy judgement exhibited a notorious disinclination to permit medical colleges in particular to charge reasonable tuition and development fees resulting in continuous litigation. Private professional college managements expect the new committees, to be chaired by former vice chancellors and inclusive of two other members with finance and administrative experience, to be as grudging.

Yet apprehensions of promoters of private professional colleges that they will suffer the double whammy of sacrificing 50 percent of their seats to government mandated disadvantaged students and fixation of below break-even fees apart, the licence-permit-quota blitzkrieg of the HRD ministry has even private schools — which were hitherto spared the heavy hand of government — running scared. Under the Right to Education Bill, 2005 drafted by the ministry which is pending parliamentary approval, all private aided and unaided schools are obliged to reserve 25 percent of the annual intake of class I students for "randomly selected" children from poor households in their neighbourhood and provide them free education through to class VIII.

The upshot of the rain of legislation emanating from within the Union HRD ministry is that not only are promoters of private unaided professional college managements (who waged a successful decade-long battle to run their institutions without micro management from (state) governments only to have their success negatived by the 104th Amendment) demoralised, even private school managements are confused, if not bewildered.

The fingerprints of the Union HRD ministry on the stringent norms prescribed by AICTE and UGC — both of whom are under the administrative control of the ministry — are clearly visible. And the intent is unmistakable: Abandon hope to enter here!

According to Kanti Bajpai, headmaster of the famous Doon School, Dehra Dun the introduction of "at least three Bills in the past two years" drafted to provide reservations for SCs, STs (scheduled castes and scheduled tribes), OBCs (other backward castes) and BPL (below poverty line) students in education institutions could add up to "close to 80-90 percent of all admissions". "At 80-90 percent reservations, what will remain of the financial viability of private schools? Given that schools may not charge their regular fees for reserved category students and given that government transfers on behalf of the reserved category are likely to be nominal per child, will private schools survive? Even if they survive, will they be in a position to provide quality facilities? The financial crunch facing private schools will be dire indeed given the government’s insistence that fee increases are to be regulated. Combine this with the Supreme Court’s ruling against cross-subsidy and one has to wonder where funding for the reserved students and school facilities will come from," writes Bajpai in a despairing op-ed page column contributed to the Times of India (January 18).

Although the grim scenario painted by Bajpai is somewhat alarmist (because the RTE Bill 2005 proposes a mere 25 percent reservation, and that too only up to class VIII in private schools and the PPEI Bill 2005 is not applicable to schools), the breadth of the new Article 15(5) inserted into the Constitution gives free licence to the Central and state governments to enact reservations envisaged by Bajpai without fear of challenge in the courts. Little wonder that promoters of globally benchmarked capital-intensive private schools are exhibiting symptoms of paranoia.

"Indian education is experiencing an acute shortage of good quality teachers to whom we have to pay very high salaries. For instance the starting pay of teachers in our NPS (National Public Schools) institutions is Rs.21,000 per month and in TISB (The International School, Bangalore) Rs. 30,000 averaging Rs.6 lakh per year. With this pay structure and the high cost of our affiliations to foreign examination boards, it will be very difficult — if not impossible — for us to meet the 25 percent quota obligation proposed by the RTE Bill. There is a distinct possibility of high end and international schools being taken over by minority trusts and charities which are exempt from reservation and quota obligations," muses Dr. K.P. Gopalkrishna promoter chairman of the five NPS schools in Bangalore and Chennai and of the state-of-the-art TISB.

Middle class outrage against the UPA government’s reservations policy which threatens to dumb down the country’s few education institutions that can justifiably claim to be internationally benchmarked, to the level of ramshackle government schools and colleges which churn out millions of unemployables annually, has prompted a growing number of academics to question the fundamental premise of caste-based reservations in institutions of learning. Addressing the Sixth Editorial Conference on Social Sector Issues in Delhi on January 17, Lord Meghnad Desai, former director of the London School of Economics who was elevated to the House of Lords for service to British education, observed that caste is not a good "label" for reservations in India’s education institutions. "I am all for reservation but I don’t like the criteria chosen for selection," said Desai who advocated a "gigantic national merit scholarship system" instead.

On the other hand Dr. G. Thimmaiah former director (1984-87) of ISEC (Institute for Social and Economic Change) and former member of the Planning Commission (1996-98) believes that caste-based reservations in instit-utions of education were "introduced with a noble social purpose". But the noble intent of the founding fathers of the Constitution in institutions of education has been "abused by politicians who have made it repugnant even to the people targeted". Therefore he recommends the appointment of a new commission to review the castes, tribes and OBCs included in the lists of the Central and state governments rather than abolition of caste-based reservations in toto.

"As far back as 1965 the Lakur Committee had recommended that 13 castes which had progressed should be removed from the Central list. The proposal was rejected and since then the SC and ST lists have been arbitrarily expanded for political purposes. Likewise OBC lists which fall within the purview of state governments, have been continuously expanded to cover almost all castes. As a result most of the reserved seats in institutions of higher education are monopolised by SCs and OBCs which are no longer backward. In my opinion genuinely backward SCs and STs constitute only 10 percent of the population and OBCs 30 percent. A new commission needs to be constituted to thoroughly review and prune existing SC, ST and OBC lists. Reservations in education institutions should not be permitted to be grabbed by a creamy layer within reserved categories as is the case currently. If reserved categories are pruned to 30-40 percent of the population, reserved quotas to that extent will become saleable to private education institutions," says Thimmaiah.

Quite clearly hyperactivity within the Union HRD ministry which has precipitated a blitzkrieg of hastily drafted, politically motivated legislation, bodes ill for India’s institutions of learning. At a juncture in the nation’s history when liberalisation and decontrol of Indian industry has enabled it to record unprecedented growth and development, a strong contrary current is re-imposing the discredited licence-permit-quota regime upon Indian education threatening to level down reputable private institutions of learning, if not wipe them out altogether. This is a bad omen for generation next which will have to bear the full brunt of international competition in the emerging global economy.

With Srinidhi Raghavendra (Bangalore); Hemalatha Raghupathi (Chennai) & Gaver Chatterjee (Mumbai)