Updated: August 6, 2022 9:15:08 am
— Written by Biplob Das
A petition has been filed in the Madras High Court against the National Medical Commission’s (NMC) directive to reduce fees for half of the total approved seats in private medical colleges. Education Promotion Society of India (EPSI), a not-for-profit autonomous nodal agency founded by educational entrepreneurs, intellectuals, and policymakers, has challenged the NMC directive arguing that it is unconstitutional and infringes on the fundamental rights of citizens to establish and administer private educational Institutions.
The petitioners have asked for an interim stay on the NMC order and pleaded the High Court to quash the directive because of its unconstitutionality.
In February, Prime Minister Modi had announced that 50 per cent of the fees in private medical institutes will be reduced to the fee level of government institutes. In March, the NMC announced that medical institutes will have to comply with this decision from the new academic year.
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There are 85,000 medical seats in the country out of which half are in private colleges (41,190) and the other half in government colleges (43,237). Due to the NMC order about 20,000 more seats (50 per cent of private seats) will be available to students at low fees on par with government institutes. “The students will first be given the seats at government medical colleges, their next option would be the seats in private medical colleges (at government determined fees) and then the rest of the private seats. All admissions will be through merit,” an NMC member had told Indian Express in March.
The NMC Act, passed in 2019, gave powers to the NMC to “frame guidelines for determination of fees and all other charges in respect of fifty percent of seats in private medical institutions and deemed to be universities which are governed under the provisions of this Act,” The NMC created an Expert Committee which directed in an Office Memorandum that; “The fee of the 50 per cent of the seats in the private medical colleges and deemed Universities should be at part with the fee in the Government medical colleges of that particular State & UT.”
On Wednesday, NMC wrote to private medical institutes to implement the order for students who will be admitted in the new academic session. Sources in the NMC have further stated that action will be taken against private medical colleges upon complaints of non-implementation of the order.
The Indian Express was able to access a copy of the petition filed by EPSI in the Madras High Court. The petitioners have argued that the NMC directive is violative of the fundamental right guaranteed under Article 19(1)(g) of the Constitution to establish and administer educational Institutions.
P. Palanivel, Executive Secretary of EPSI who submitted the petition on their behalf, has argued that the directive will lead to discrimination in the fee structure since 50 per cent of students will have to bear the cost of education for the other half of students.
The petition stated, “Since higher education is not a fundamental right, it is unreasonable to compel a citizen to pay for the education of another, more so in the unrealistic world of competitive examinations.” It referred to the Supreme Court ruling in the T.M.A. Pai case (2002), where the court had overruled its previous verdict in the Unni Krishnan case (1993) arguing that some students should not be compelled to pay for the education of others.
The writ petition further argued that “the determination of fees for 50% of seats will result in the nationalization of the private educational institutions in respect of important features including their right to administer the Institution.”
Citing the Supreme Court’s verdict in the T.M.A. Pai case and the Islamic Academy case (2003), EPSI further argued that a private institution that does not seek aid from the Government should be left to determine the scale of fee it can charge. The government only gets a say as far as collection of capitation fee or profiteering is involved in private institutions, the petition further stated.
The power of the NMC to provide such directives was also questioned by the petition. The petition argued that NMC can only frame ‘guidelines’ for determination of fees for 50 per cent of seats in private institutions. The NMC does not have the regulatory power to direct private institutions to restrict the amount of fees that can be charged from students, it stated.
The Supreme Court had directed the setting up of Fee Committees to be headed by retired Judges of High Courts. These committees were empowered with quasi-judicial regulatory powers, although their judgements would be subject to judicial review. The petitioners pointed towards the pre-existence of a fee regulatory mechanism.
It is noteworthy that in the T.M.A Pai Foundation vs State of Karnataka case, the Supreme Court had stated in its verdict 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.”
In the Islamic Academy of Education vs State of Karnataka case, the Supreme Court had upheld its previous ruling by stating that Each institute must have the freedom to fix its own fee structure taking into consideration the need to generate funds to run the institution into consideration the need to generate funds to run the institution and to provide facilities necessary for the benefit of the students. They must also be able to generate surplus which must be used for the betterment and growth of that educational institution.”
The petitioners stated that the government has seized the fundamental right of Institutions to fix their own fee structure through the NMC order, and its implementation will “put the members of the Petitioner Association in a disastrous position as their very existence will be at peril.”
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