The Supreme Court’s judgment that unaided and aided minority and non-minority professional institutions had rights to admit students of their choice is a step in the right direction. This judgment must be seen in the context of an evolving jurisprudence that is trying to achieve two objectives. First, the courts are giving unaided institutions progressively more autonomy, so that we can move away from a one-size-fits-all regulatory regime. Second, in the case of unaided educational institutions, the courts are trying to reduce the gap between the freedoms that were enjoined by minority institutions on the one hand and the liberties that could be exercised by non-minority institutions, on the other hand. So long as they are unaided, both have now been given much greater autonomy about whom they can admit.At the very least, this judgment puts an end to the confusion and uncertainties generated by the T.M.A. Pai Foundation case and the subsequent clarifications given by a five judge bench. It will by no means resolve all the issues pertaining to the regulation of higher education, but it is a good beginning. Many citizens will have legitimate apprehensions about the consequences of this decision. Will it lead to a denial of access to marginalised communities? Will professional education become more expensive for middle-class families? The judgment is not by any means immune to the force of these questions. The Court has reiterated its traditional opposition to profiteering and capitation fees, and allows the possibility of regulation in this area. The Court is also facilitating the provision of cross subsidies by allowing institutions to admit 15 per cent NRI students, provided this subsidy is actually used to help poorer students.But the implication of the Supreme Court judgment is that as a society we now have to think more creatively and compellingly about how we achieve the goal of a society where everyone can get access to higher education appropriate to them. Merely denying institutions autonomy over some basic decisions achieved neither excellence nor greater access.
