The Supreme Court recently appointed senior advocate Salman Khurshid as amicus curiae and directed the Chief Secretaries of the ‘capitation quartet’ States — Andhra Pradesh, Karnataka, Tamil Nadu and Maharashtra — to provide all information to Mr. Khurshid to enable him analyse and submit a solution through which we can put an end to the capitation fee menace in professional colleges. As we await the report, some perspective is necessary.

The Supreme Court’s concern on various public issues like smoking in public, parental care, capitation fee and even mosquito control exemplifies its empathy for common citizens. It has protected common citizenry, not only by giving the final word on disputes involving interpretation of the Constitution and legislative enactments, but also framing schemes to ensure a proper implementation.

That is what everyone thought when the Supreme Court in the Unnikrishnan case (1993) framed a scheme to prevent commercialisation of admissions to professional colleges.

A fundamental right

I distinctly remember my conversation in 1993 with a senior Supreme Court advocate, who felt that the judgment had made the pendulum move to an extreme position, snatching away the fundamental right to administer educational institutions. He said it needed to be brought to an equilibrium. True to his words, in the T.M.A.Pai Foundation case (2002), the Supreme Court scrapped the Unnikrishnan scheme, deeming it unconstitutional. The Court held that starting an educational institution was a fundamental right and that the government could not interfere in the administrative rights of private institutions — minority or non-minority.

In Islamic Academy (2003) and P.A. Inamdar (2005), the Supreme Court reinforced the rights of private institutions and condemned the practice of collecting capitation fees. The Supreme Court’s triple-test formula for admissions directed private institutions to ensure fairness, transparency and non-exploitation. The same senior advocate in 2002 recalled his 1993 comment and was puzzled that the pendulum had gone to the other extreme.

In 2013 came another opportunity for the Supreme Court in the NEET (National Eligibility and Entrance Test) case.

Justice V.R. Krishna Iyer in State of Kerala vs. T.P. Roshana (1979) brought to light the goal of judiciary. He said, “The rule of law should not petrify life or be inflexibly mulish. It is tempered by experience, mellowed by principled compromise, informed by the anxiety to avoid injustice and softens the blow within the marginal limits of legality. That is the karuna of the law.

“Nor is law unimaginative, especially in the writ jurisdiction where responsible justice is the goal. The court cannot adopt a rigid attitude of negativity and sit back after striking down the scheme of Government, leaving it to the helpless Government caught in a crisis to make-do as best as it may, or throwing the situation open to agitational chaos to find a solution by demonstrations in the streets and worse.”

He goes on to add, “The need for controlling its repercussions calls for judicial response. After all, law is not a brooding omnipresence in the sky but an operational art in society.”

The NEET case was the perfect one to test ‘responsible justice’. The Supreme Court struck down the NEET as ultra vires and held that Medical Council of India (MCI) Act, 1956 doesn’t empower MCI to conduct a unified NEET. The government ended up on the losing side, thanks to a battery of highly paid Supreme Court advocates who appeared on behalf of private medical colleges.

In NEET case, the Supreme Court correctly interpreted the judgments of Islamic Academy and TMA Pai Foundation cases, which came as a form of relief and rescue to private medical colleges. However, was ‘responsible justice’ served?

It was Justice Anil R. Dave who, in his dissenting judgement, pointed out: “I fail to understand as to how autonomy of the said institutions would be adversely affected because of the NEET. The government authorities or the professional bodies named hereinabove would not be creating any hindrance in the administrative affairs of the institutions. Implementation of the NEET would only give better students to such institutions and from and among such highly qualified and suitable students...”

After the NEET case, I wrote an article on how the Supreme Court could have taken the pendulum to its equilibrium position and also suggested a workable formula that not only satisfies the triple test laid down by the Supreme Court but also does not affect the rights of private institutions. The appointment of Mr. Khurshid as amicus has provided a ray of hope. Its an opportunity that is too precious to be lost and, if lost, will snap the pendulum beyond anyone’s reach.

‘Highest bidder is the final buyer’

A mere reliance on the four State Governments’ data may lead to an “All izz well” feeling, implying that the Centre and States, through various legislative and statutory provisions, have been effective in dealing with the issue of capitation fees. If that is the case, why did the National Institute of Public Finance and Policy give the education sector a shameful number two position in the list of black money generators?

The ‘highest bidder is the ultimate buyer’ principle has resulted in a collusion between management and parents and in an unscrupulous triumph of money over merit. The regulators have preferred to turn a Nelson’s eye, acting as a catalyst to this annual capitation ritual.

The capitation fee issue is not just about college managements. It comprises a broad ecosystem having varied stakeholders — selfish parents with brutal money power; deafeningly silent regulators; and other victims and beneficiaries who have been direct or indirect consumers of professional education. It would be a good idea foramicus Khurshid to gather inputs from different parties on the ground realities and the possible remedies. The concerned stakeholders, including the students, are high with the hope that ‘Dr.’ Salman Khurshid will prescribe the killer antidote to this toxic steroid and that the Supreme Court will administer this antidote and deliver ‘responsible justice.’