M J Antony: When orders lead to disorder

OUT OF COURT

For more than 12 years, the Supreme Court has been making efforts to contain the vice of capitation fees in professional educational institutions and introduce merit as the main criterion. Unfortunately, commercialisation of education has been going far ahead of judicial labour in this field.

Instead of streamlining the system by balancing merit and money power, the various judgements and interim orders have led to virtual chaos. Students and their parents are not sure of admissions because many get admitted on the basis of interim orders from the courts.

The fee structure is also not final. There is the Damocles' sword hanging over them as well as the managements because the final judgement may upset their career and financial planning.

The state of disarray can be measured from fact that at least half a dozen important issues have again been referred to a larger bench. "Larger", in this case, has to be made up of at least 13 judges because an 11-judge bench had tried to sort out the main issues two years ago and had apparently failed.

For instance, the TMA Pai Foundation judgement of the 11 judges had ruled that unaided, private, professional colleges have full autonomy in the matter of admissions and fee structure. Last year came a clarification, in the Islamic Academy judgement, that the governments can set the quotas on the basis of "local needs".

Then started the debate on the interpretation of the phrase local needs. The states understood it in the sense that they could decide the quotas according to the needs of the state in terms of backwardness, social justice and the like. The managements perceived the phrase as catering to their needs, like those of their communities. The phrase has now to be reinterpreted.

There are several other issues to be sorted out. The Islamic Academy judgement had asked the states to set up committees of experts to determine the fee structure, by balancing the interests of the students and the managements. But almost all the recommendations of these committees have been caught in another round of litigation.

In Maharashtra, the government has reduced the fee recommended by the committee and challenged its advice by moving the Supreme Court. Kerala disregarded the proposals of its committee but the Supreme Court restored the committee's suggestions. There are similar tussles in Madhya Pradesh, Orissa and other states. All these are slated to go before a larger bench.

Another point of conflict is about who will conduct the common entrance tests. The states were conducting them so far. Later, associations of colleges were also given the power. As a result, candidates have to write several tests.

Yet another point of discord is about the separate quota for non-resident Indians. Earlier, they had no special quota. Later, they were given a percentage. This discord has also to be sorted out by the larger bench.

Normally, these nettlesome issues should have been sorted by the Centre long ago. But it has chosen to watch the muddle from the backbench while the states fight out their own legal battles.

In the Islamic Academy judgement, the Supreme Court had in fact called upon the Centre to carry the cross that belonged to the executive. It appealed to Parliament to pass a comprehensive law for the whole country.

But one has not heard even a whisper about this from the human resources juggernaut all these years. Perhaps it was too busy with primary school history textbooks. As a result, two benches of the court are now busy dealing with scores of petitions from students and managements every week.

One bench last week declared that it would lay down comprehensive guidelines on admissions and fee structure to clear the confusion at least for this year. One would eagerly wait for them and wish the court good luck.