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Karnataka
By A. Jayaram
The October 31 judgment of an 11-judge Constitution Bench presided over by the former Chief Justice of India, B.N. Kirpal, is general in nature, and is not specific to educational rights of minorities and professional education. The scope of the judgment is from primary to the highest. Though the case will go down in law journals and legal history as "T.M.A. Pai Foundation and others vs. State of Karnataka and others'', there were 161 other petitioners in the case. Of them, 27 were from Karnataka. Some of the petitions were pending in the apex court from 1976 (in one case). The main judgment was written by Mr. Justice Kirpal, and Justices G.B. Pattanaik (CJI), S. Rajendra Babu, K.G. Balakrishnan, P. Venkatarama Reddi, and Arijit Pasayat agreed with him. There were four other judgments written by Justice V.N. Khare, Justice S.S.M. Quadri, Justice Ruma Pal, and Justice Ashok Bhan, and they were in agreement with the broad conclusions. Justice S.N. Variava was the other judge on the Bench. Besides the T.M.A. Pai Foundation, the other institutions from Karnataka which had approached the Supreme Court petitioning against the State of Karnataka and figuring in the case were Madrasa-E-Madeenathul Uloom Trust, Islamic Academy of Education, Vijayanagar Education Trust, Father Muller Charitable Institute, Nanak Jhira Saheb, Al-Badar Education Charitable Trust, Khaja Education Society, S. Venkatesha Education Society, Bangalore University Old Students' Forum, Mahatma Gandhi Vidyapeeth, Catholic Bishop Conference, Al Ameen Charitable Fund, Vocational Education Society, Hazrath Shaik, H.H. Sri Shivakumara Swamigalu, Karnataka State Junior Doctors' Association, Gurala Sarojini, Association of Managements of Aided Engineering Colleges, BLBDEA Association of Engineers, Hyderabad Karnatak Education Society, Ambedkar Memorial Society, Karnataka Unaided Private Engineering Colleges' Association, Islamic Academy of Education, College of Dental Sciences (Davangere), and Al-Ameen Charitable Fund Trust. The State of Karnataka (vs. Manipal Academy of Higher Education) was itself one of the petitioners.
HC intervention
The judgment has already created the impression among the managements of private unaided professional institutions (both "non-minority", the phrase used by the Court in the judgment, and "minority") that they have an unfettered right as regards the students they can admit. That is why they have refused to admit some of the students selected by the Common Entrance Test Cell of the State, which has won acclaim all over the country through the selection methods it has evolved. In the case of one student, the Karnataka High Court (Justice N.P. Kumar) intervened on Tuesday to direct the college concerned to admit him to the B.E. degree course. A perusal of the 125-page main judgment does not, however, support the type of helplessness expressed by the Minister for Higher Education, G. Parameshwar, who has said that a majority of engineering, medical and dental colleges in the State will be out of the purview of the CET. The judgment is of great import for professional education in Karnataka because of the overwhelming presence of unaided institutions among them run by both non-minority communities, and religious and linguistic minorities. Of the 123 engineering colleges, 107 are unaided, and of them 15 are minority institutions. Of the 32 medical colleges, 28 are unaided (10 minority), and of the 36 dental colleges, 35 are unaided (five religious- and four linguistic-minority-managed). While replying to 11 specific questions posed during the hearing, the judgment has the following to say with regard to the admission procedure to be followed by a minority institution. As already reported in these columns on November 1, "A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or selection made should not tantamount to maladministration. Even an unaided minority institution ought not to ignore the merit of the students for admission, while exercising its right to admit students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence.''
Payment of fees
About the quantum of fees, the judgment is clear: "Fees to be charged by unaided institutions cannot be regulated, but no institution should charge capitation fees.'' The principle laid down by the court in Unnikrishnan J.P. vs. State of Andhra Pradesh (1993), that there should not be capitation fee or profiteering, is correct. "Reasonable surplus to meet cost of expansion and augmentation of facilities does not, however, amount to profiteering.'' From the Unnikrishnan judgment till now, the State was fixing the tuition fees to be charged by the institutions for the free and payment seats, and the private managements could not overcharge the parents or students. It is noteworthy that under the recent judgment there is no scope for collecting capitation fees and profiteering. (To be concluded)
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