The Supreme Court has now devised a new method. It is of distilling the defence of the sky-high fees for professional education from an admitted sale of seats. The latter is what ‘capitation fees’ suggests – seats for a hefty price; the ‘C’-word sounds uncomfortably close to ‘corrupt’.

In October 2002, an eleven-member bench of the Court shocked the country by a virtual ‘carte blanche’ or clearance for capitation fee seats in professional colleges. Regarded as a dreaded trend of allowing non-meritorious students to secure professional degrees based purely on money power – which is what it is – it broke out as a veritable pox-rash in Karnataka in the 1970s. Interestingly, the entire ‘defence-of-merit’ fighters opposing the Mandal Commission’s extension of reservation, as also the anti-reservationists in professional education at the time of Gujarat agitation of early 1980s, never gave battle to the emasculation of merit by ‘management seats’ or even the more direct capitation-fee colleges. For them, merit meant saving seats from dalits and OBCs.

Flourishing private professional colleges affiliated to private recognized universities, prescribing fees of back breaking nature for all seats uniformly. This has rendered the actual need of a stigmatized separate capitation fees rather obsolete. Further the incessant liberalization of higher education in general under NEP and World Bank tutelage has raised the fees in government colleges many times over. Much more so for government professional colleges; in fact very few lower middle class homes can now hope to finance this education without loans.

In this overall situation, a five-member Constitution Bench of the Supreme Court has clothed the sky rocketing fees of private professional colleges in the garb of legitimacy. It has also – may be inadvertently – created a mechanism of jobs for retired judges and a route for state governments to take a share of the cake at stake.

The bench sat to interpret the Court’s own earlier judgement of 2002. It considered four major questions – whether private unaided professional colleges (PUPCs) can admit students for 100% of the seats, whether educational institutions can fix their own fee structure, whether the PUPCs can admit students evolving their own method of admission, and whether minority and non-minority educational institutions stand on the same footing and have the same rights.

The Supreme Court has taken the position that while no capitation fees can be collected as capitation fees, no donations taken above fixed fees, and no admissions can be made from outside the merit list, governments can not fix a rigid fee structure. Each private college has the right to suggest its own fees, keeping in mind not only the existing infrastructure, facilities available, investment done and salaries to be paid, but also its future plans for both ‘betterment and expansion’. Thus almost it can charge the capitation fees as its regular fees. However, all these private colleges will submit their proposed fee scheme to a board to be set up by the state government, where the fee structure will be passed. Whatever is approved has to be implemented for a period of three years. No specific direction is there for uniformity even within the state. The Committee per state will be headed by a retired judge of the High Court, will have a chartered accountant, a representative of the MCI (or AICTE) or central or state agencies depending on whether it is a medical, general or engineering college. Lastly, the Secretary of this Committee will be the State’s Secretary in charge of medical / general / technical education (as the case may be). Thus the private colleges now only have to convince (including by paying ‘capitation fees’ most likely) this Board about the justification of their fee proposals. It is an interesting admission of the gross commercialization of education being blessed by the highest Court, that a chartered accountant should have decision-making ability on the socio-political issue of cost of higher education!

There is little doubt which section of society will avail these colleges. Merit now is also a double-edged sword, with the firm dual education policy established in schools often settling the major part of this question. That is apart from rampant corruption, which gets around all the hedges due to its shelter by the highest echelons. The financial divide in the country has also created a large upper middle class consumer section in the past 10-15 years of NEP, with a high earning class of IT professionals, doctors, engineers, teachers drawn into the well paying market, and leaving the bulk of India too far down below. Hence, keeping also the needs of this vocal, high paying society in mind the Court has provided certain 'relief'. Thus such colleges (as above) cannot charge fees for four years at one go (fearing students will leave them, due to stress on actual performance of either side, which is not a question of money alone); at the most, they can ask for bank guarantees for that period!

On the question of admissions, firstly the Court has gone overboard on the question of ‘merit’. All admissions will be on the ‘basis of’ a common entrance test conducted by the state or by a group of similar colleges. The state government can intervene in and regulate admissions in professional colleges, both private and minority. This may well be a double-edged sword in the days of Hindutva uniformity. However, the Justice Khare led Bench has ruled “national interest would prevail even over minority interests”. This can have, of course, many meanings.

Second, the state government can fix the proportion of seats to be filled by management and through the merit list based on CET. Provision has to made for students from ‘backward and needy sections’. Apart from this the proportion of seats can be fixed keeping local needs in mind, but the Court has suggested a general direction of 50:50 sharing! Yet the Court insists ‘merit’ will be the basis of admissions – how it is going to be so when 50% seats are management seats is anyone’s guess. The direction seems to be that an admission seeker has to be just anywhere on the CET lists.

For unaided minority institutions, however, the proportion between the managements and CET filled seats can be different. Here the management has the right to admit students of their own community or language in preference to non-minority students. The provision says that the seats fixed for the minority will be in keeping not with local needs but "the needs of the community in the state".

To prevent ‘overcharging’(!) by the private colleges of high fees for registration, admissions will be only on the basis of the CET. However, the state government will set up another Board, giving employment to yet another retired judge of the High Court as its head. This can monitor the admissions to management seats of private, unaided professional colleges, it can even allow them to admit students over and above the quota allocated to them on the basis of infrastructure. If any unaided minority college wishes to continue conducting its own entrance examinations separately, ‘based on past practice’ of many years, it has to take the permission of this second Board. Both Boards will exist till Parliament legislates on the issue.

In totality, the Court ruling has substituted the blanket cheque given for capitation fees by the earlier ruling of the Court in 2002, for institutionalized commercialization. The ruling is well within the purview of WTO - World Bank prescriptions for ‘payment for services’. Education as a tool of development, education in accordance with the needs of the country, the concept of the country subsidizing the development of its own technical and intellectual personnel – these concepts are no longer even kept for lip service. It is clear, however, that merit has actually little to do with the new scheme of things, no matter how diligently the Court labels it so. In passing, it needs to be remarked that there is no direction by the Court of any dealing with highly meritorious students unable to meet the fee structure. In the Court’s eyes, perhaps, they are ‘non-meritorious’ on the account that really matters.