The clearance for “Prohibition of Unfair Practices in Technical and Medical Educational Institutions and Universities Bill, 2010” by the Union Cabinet appears to have created an impression that the Central government has positively responded to the long standing public demand for stringent regulations to rein in private professional educational institutions. The provisions in the bill for awarding a maximum of three years imprisonment and fine of Rs.50 lakhs for charging capitation fee and issuing misleading advertisements or wilfully giving wrong information in the prospectus has been highlighted with approbation by the media across the country. While the steps contemplated in the bill for enforcing transparency in the functioning of private professional educational institutions are laudable, any presumption that the bill would ensure social and academic accountability of private professional educational institutions would be totally unwarranted.
As a matter of fact, the overall impact of the legislation is to frustrate rather than augment efforts being made by the State governments to ensure social control on private professional educational institutions. This is because the bill has two objectives, one stated and the other unstated, and the two objectives do not converge on a platform of social and academic accountability. The apparent objective of the bill, which is to ensure transparency in the functioning of educational institutions, is orchestrated through the title of the bill. Amidst the din and noise of the shrill proclamations and stringent punitive provisions, the unstated objective goes largely unnoticed. One has to take note of the strategic omissions in the bill to properly understand what the bill seeks to achieve through its negations.
Provisions don't go far enough
While the provisions in the bill are commendable as far as they go, they do not go far enough. There are no provisions to regulate the three vital concerns of students, namely admission, fees and content of courses. Through its studied silence on these aspects, the bill seeks to limit social and academic accountability of educational institutions to merely ensuring transparency in the process of admission and levy of fees. The larger issues of social justice and excellence in education are totally ignored.
There is no provision in the bill for an admission procedure based on a common entrance test (CET) and centralised counselling conducted by the agency of the State or allotment of seats among various categories of students including SC/ST/OBC/Minorities. There is also no provision for a differential fee structure on the basis of merit/income of students. What is more, the operation of admission and fee regulatory committees set up by various State governments, including Kerala, in accordance with the judgment of the Supreme Court could possibly be challenged, once the Central law comes to occupy the field.
The only good practice that the bill recognises is that of transparency in the functioning of educational institutions. The bill makes it mandatory for educational institutions to publish details of fee structure, admission procedure, faculty, infrastructure, syllabi, etc, on the website/prospectus of the institution. There are provisions to prohibit collection of admission fee and other fees without receipts. There are also provisions for the imposition of monetary penalties which include penalty for non performance according to prospectus, for accepting capitation fee, for withholding documents, for misleading advertisement, etc. There is an appropriate mechanism in the form of tribunals which have sufficient powers to adjudicate on issues arising from enforcement of the law.
By identifying transparency as the only mandatory good practice, the bill seeks to equate educational practices with business practices. Profiteering is justified, provided the account books are open. The bill overcomes the restrictions on commercialisation of education, which law courts have been consistently upholding. Even TMA Pai judgment, despite its reformist sympathies, had ruled that profiteering in education was unconstitutional. The new bill only recognizes corporate responsibilities and corporate ethics. Imparting education would cease to be charitable activity, even in name, and become a business activity, sanctioned by law, with the enactment of the bill. The restrictive interpretation of unfair practices would keep the vast majority of academic and social offences out of the ambit of the present bill.
Not inadvertent
It is not as if the omissions in the bill are inadvertent. This would become quite evident if one looks at the history of the bill. The bill has been in the making for quiet a long time. A Central umbrella legislation empowering States to regulate admission, fees and content of education in private professional educational institutions had become necessary to offset the judgment of the Supreme Court in TMA Pai Foundation case in 2002, which had unsettled the arrangements made for common entrance test and differential fees through the Unnikrishnan judgment in 1993.
In response to the large public demand for a comprehensive legislation to restore the dimensions of equity and excellence in private professional education, attempts were made twice during the first UPA regime to enact a central legislation for regulating private educational institutions. The first draft legislation was prepared by the Ministry of Human Resource Development (MHRD) in 2005 and posted on its website for consultation. The second draft was prepared by a committee appointed by UGC in 2007. The Private Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Bill, 2005 had certainly not fully addressed the demand for a law ensuring admission according to merit and reservation and fee structure according to the paying capacity of the parent. However, the principles of Common Entrance Test (CET), centralised counselling, allotment of seats among various categories including weaker sections and differential fees were accommodated.
The UGC brought out its draft legislation two years later in the form of “Admission and Fee Structure in Private Aided and Unaided Professional Educational institutions, 2007.” This had provisions which empowered the State/Union Territory governments to regulate universities set up within the State/UT. These provided for allotment of seats under Government General Quota, Government Reserved Quota, and Institutional Quota and Management Quota. Such quotas would be variable for minority and non-minority institutions. There were also provisions for regulating admission through CET and centralised counselling conducted by agencies appointed by the State. There could be variable fee structure determined by fee regulatory committees appointed by the State, taking into account the socio economic realities in each State. In addition to the above, there were also adequate provisions for ensuring transparency in the functioning of educational institutions and for imposing exemplary penalties on those institutions which fail to comply with the regulations.
Both drafts had actually addressed the concerns of equity and excellence in professional education to a large extent. Unfortunately they were allowed to lapse. Kapil Sibal has now abandoned both drafts and has come out with an entirely new bill. The new bill is the child of a new policy on education, authored by the second UPA government. An understanding of the objectives and outcomes of the present bill can be made only by situating it in the overall context of the new policy pronouncements of the Human Resource Development Minister and the steps being taken by him to enact a slew of legislative and administrative reforms. Kapil Sibal is on record as having stated that he would do to the education sector what had been done to the financial sector in 1991. With this objective, he is feverishly pushing ahead with a number of reforms, all of which share a common objective, which is to expedite neo-liberal reforms in higher and technical education.
( The writer is Minister for Education& Culture, Government of Kerala .)
