JOIN USThe business in knowledge
It is a moment of reckoning for higher education. The Yashpal Committee has submitted its much publicised report to overhaul the higher education in the country. The Union HRD Ministry has also unveiled an ambitious 100-day plan to revamp the system. It is heartening that the committee noted in unequivocal words that universities cannot be centres of profit-making. The committee felt deeply disturbed on the mushrooming of engineering and management colleges that have “largely become business entities dispensing very poor quality education". Lamenting the growth of deemed universities, it called for a ban on further grant of such status. Questioning the source of funding of private education providers, the committee recorded that it was either "unaccounted wealth from business and political enterprises or from capitation fees”.
In a welfare state, education, healthcare and justice should be provided to citizens either free or at minimal cost. Unfortunately, all three have become too expensive in India, negating the very concept of a welfare state. The notion of welfare-statism acquired prominence after World War II in response to some momentous changes in economic and social fields and in the state’s role in Great Britain from the beginning of the 20th century.
Earlier, the only form of public aid for the destitute was the Poor Law but the working class detested it as conditions for applying for relief under it were quite mortifying. As the demand for a more effective approach to tackle poverty became louder, legislations were introduced to fortify the interests of the vulnerable sections of the society. This marked the transition of the British economy from vigorous laissez-faire to increasing state responsibility. Since then, Great Britain has been known as a welfare state. After attaining independence, India embarked on a policy of planned development and social welfare policies evolved as an integral part of Five Year plans. However, not much could be done under welfare schemes for the downtrodden.
Education became a major casualty as the government virtually stopped setting up new institutions. The vacuum was filled by private players who invested money not for charity but to reap a good harvest as this field proved quite fecund for minting money. These moneybags could manage to wangle the status of ‘deemed university’ for their institutions which lacked infrastructure.
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 undertaken for profit while “education has never been commerce in this country”. It lambasted the practice of charging capitation fee. 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 of the right to education as a fundamental right. The Court, however, conceded that education could “perhaps fall under the category of occupation provided no recognition is sought from the state or affiliation is sought from the universities on the bases that it is a fundamental right”.
However, an 11-judge Constitution Bench of the apex court in T M Pai Foundation (2002) overruled Unnikrishnan and opened the doors to commercialising 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 also 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 fulfilling 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.
To resolve the confusion, the Supreme Court, in an unprecedented exercise, set up another Constitution Bench of five judges in Islamic Academy of Education vs Karnataka to interpret the ratio decidendi of T M A Pai Foundation, and in the name of interpretation a smaller bench overruled the larger bench. The judgment in Islamic 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 states to decide the fee structure and admission procedure in unaided private institutions. However, even this case could not dispel the thick fog of confusion. Another seven-judge bench was constituted in P A Inamdar 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, is protected by Article 19(1)(g).
Whatever the Court’s pronouncements, the government must ensure that education is not allowed to become commerce. As Vivekanada said: “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.”