Education in a welfare state

IT is a moment of reckoning for the higher education. Yashpal Committee has submitted its much publicized report to overhaul the higher education in the country. Union HRD ministry has also unveiled an ambitious 100-day plan to revamp the system. It is heartening that the Committee has 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 had "largely become business entities dispensing very poor quality education". Lamenting the growth of deemed universities, it has called for a complete ban on further grant of such status. Questioning the source of funding of private education providers, the committee has recorded that mostly it was either "unaccounted wealth from business and political enterprises or from capitation fees”. The TOI had recently exposed how medical colleges run by politicians are charging exorbitant amount as the capitation fees.
In a welfare state, education, health care and justice should be provided to citizens either free of cost or at the minimal cost. Unfortunately, all the three have become too expensive in India to be within the reach of the have-nots negating the very concept of welfare state. The notion of welfare-statism acquired prominence after the Second World War in response to some momentous changes in economic and social fields and in the role of the state that took place in Great Britain from the beginning of the twentieth 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. It was a design to discourage people from taking recourse to it. As the demand for a more effective approach to tackle the problem of 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 one of vigorous laissez-faire to one of increasing state responsibility in matters of individual and social welfare. Since then, Great Britain has been known as a welfare state. Ironically, changes brought about by welfare legislations in Britain did not trickle down to India which was its colony. 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 downcast.
Education became a major casualty as the government virtually stopped setting up new educational institutions. The vacuum was filled up by the 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 utterly lacked in infrastructure. In J. P. Unnikrishnan v. 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 carried for profit while “education has never been commerce in this country”. It lambasted the practice of charging the capitation fee and almost nationalized the whole professional education in India. Expanding the right to life under Article 21 of the Constitution, it declared the right to education up to twelve 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, a 11-judge constitution bench of the apex court in T. M. A. Pai Foundation (2002) overruled Unnikrishnan and opened the door for the commercialization of 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 further 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 v. 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 each state for deciding the fee structure and admission procedure in unaided private institutions. However, even this case could not dispel the thick fog of confusion, and another seven-judge bench was constituted in P. A. Inamdar to clarify doubts created by the earlier two cases. Now, the Court held that the right to establish an educational institution for profit or for charity, being an occupation, is protected by Article 19(1)(g). Now, only God knows whether Inamdar has resolved the confusion or added more to it.
Whatever the court’s pronouncements, the government must ensure that education is not allowed to become commerce. Let us not forget what 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.”