Where are the Tyagis?

Education As Commerce

Swami Vivekananda had once remarked, “In our country, the imparting of knowledge has always been through men of renunciation. The charge of imparting knowledge should again fall upon the shoulder of Tyagis.” When one looks at the state of higher education in the country today, one needs a very powerful binocular to search for those ‘Tyagis.’

The Yashpal Committee has submitted its much publicised report to overhaul the higher education and it is a moment of reckoning for the country. The Union HRD minister has also unveiled an ambitious 100-day plan to revamp the system. It is heartening that the committee has noted in unequivocal words that universities cannot be centres of profit making.

The committee felt deeply disturbed by the mushrooming of engineering and management colleges, that had “largely become business entities dispensing very poor quality education.” Lamenting the growth of deemed universities, it has called for a complete ban on further grant of such status. Questioning the source of funding of private education providers, the committee has recorded that mostly it was either “unaccounted wealth from business and political enterprises or from capitation fees.”

Indian tradition

There may be controversies over other recommendations of Yashpal Committee regarding disbanding of myriads of regulators like UGC, AICTE, etc, but its condemnation of the crass commercialisation of education is welcome and in consonance with the Indian tradition. In a welfare state, education, healthcare and justice should be provided to citizens either free of cost or at the minimal cost. Unfortunately, all the three have become too expensive in India to be within the reach of the have-nots negating the very concept of welfare state.

Education became a major casualty as the government virtually stopped setting up new educational institutions. The vacuum was filled up by private players who invested money not for charity but to reap a good harvest as this field proved quite fecund for minting money.

In J P Unnikrishnan vs Andhra Pradesh (1993), the Supreme Court clearly held that education could not be a trade, business or profession within the ambit of Article 19(1)(g) as all these activities are carried for profit while “education has never been commerce in this country.” It lambasted the practice of charging capitation fee and almost nationalised the whole professional education in India.

Expanding the right to life under Article 21 of the Constitution, it declared the right to education up to 12 years of age a fundamental right. Subsequently, parliament amended Article 21 to make an express declaration in this regard.

However, a 11-judge constitution bench of the apex court in T M A Pai Foundation case (2002) overruled Unnikrishnan and opened the door for commercialisation of education by ruling that setting up and running educational institutions is an occupation, if not a business, under Article 19(1)(g) and a charitable purpose under Article 26(a). According to it, “that private educational institutions are a necessity becomes evident from the fact that the number of government-maintained professional colleges has remained more or less stationary, while private institutions have been established.”

This is unquestionably true, but then does it give private institutions a carte blanch to charge exorbitant fees? Though the court held that, “the decision on the fee to be charged must necessarily be left to the private educational institution that does not seek or is not dependent upon any funds from the government,” it, nevertheless, said a categorical ‘no’ to profiteering and capitation fee. It further clarified that since the objective of setting up such institutions is essentially ‘charitable,’ they cannot charge such a fee which is not required for the purpose of fulfiling that object. Thus a sort of confusion was created, which was further confounded when the court added that those who seek professional education must pay for it.

Ratio to be decided

To resolve the confusion, the Supreme Court, in an unprecedented exercise, set up another constitution bench of five judges in Islamia Academy of Education vs Karnataka to interpret the ratio decided in Pai Foundation case, and in the name of interpretation a smaller bench overruled the larger bench. The judgment in Islamia Academy has itself recorded that a new bench had to be set up as “the parties to the writ petitions and special leave petitions attempted to interpret the majority decisions in their own way as suited to them.”

The court brought back certain regulations by ruling that educational institutions could not be used for profiteering and directed that committees be appointed in each state for deciding the fee structure and admission procedure in unaided private institutions.

However, even this case could not dispel the thick fog of confusion, and another seven-judge bench was constituted in P A Inamdar case to clarify doubts created by the earlier two cases. The court held that the right to establish an educational institution for profit or for charity, being an occupation, is protected by Article 19(1)(g). Now, only God knows whether Inamdar case has resolved the confusion or added to it.

Whatever the court’s pronouncements and the confusion created by them, the government has a duty to ensure that education is not allowed to become pure commerce.