Wrong To Education, Part 3 (Or, The Art of Judicial Legislation)

(The introduction to this series analysing RTE can be found here:
http://kianayema.blogspot.in/2012/08/wrong-to-education-introduction.html)
(Part 1: http://kianayema.blogspot.in/2012/08/wrong-to-education-part-1.html)
(Part 2: http://kianayema.blogspot.in/2012/08/wrong-to-education-part-2.html)
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3. The 2012 SC judgment on RTE is DEEPLY & SERIOUSLY FLAWED.

a) A bunch of issues was raised before the Supreme Court in Society for Un-aided Private Schools (Rajasthan) vs. Union of India & Anr. This is partly because, originally, the case was Writ Petition #95 of 2010, but it came to be clubbed with a host of others.

(Literally. "with Writ Petition (C) Nos. 98/2010, 126/2010, 137/2010, 228/2010, 269/2010, 310/2010, 364/2010, 384/2010, 21/2011, 22/2011, 24/2011, 47/2011, 50/2011, 59/2011, 83/2011, 86/2011, 88/2011, 99/2011, 101/2011, 102/2011, 104/2011, 115/2011, 118/2011, 126/2011, 148/2011, 154/2011, 176/2011, 186/2011, 205/2011, 238/11 and 239/11.")

Of these, the majority only ventured into two questions:
(i) Is the 25% quota on unaided schools (Sec. 12c) Constitutional?
(ii) Can it apply even to minority-run educational institutions? 

(i.e. established u/Art. 30 of the Constitution)

b) Before I venture my own opinions on the case, I'll put out 2 disclaimers:
(i) Read the case. Specifically, read Justice Radhakrishnan's dissent. It makes up the bulk of the reported case (the majority judgment is 21 paragraphs, the dissent is 149). He explores many more of the issues raised, and reaches what I can only describe as an eminently sensible decision. I learnt more about the history of both Art. 21A & the RTE from this judgment alone than everything else I could find.
(ii) I had to read the majority judgment again & again. CJI Kapadia is someone I respect tremendously, as both a legal professional & in his official capacity. I found it very hard to believe that a judge of his calibre, whose intelligence & integrity are beyond question, while holding the highest office in the country in this profession, could author something like this. The same is true for Justice Swatanter Kumar. I am still at a loss as to how or why, because the mistakes are evident - to use the language of the Court - "on the face of the record." It is still hard for me to speak critically of the work of those I admire, but at some point of time the flaws become great enough to invite - even demand - sarcasm.

c) So as to be kind to the non-law inclined reader, here's the Executive Summary first. You can skip to Part #4 after this, or you can scroll down to read any particular point. 

This is "things a good judgment should not do" <but this one does anyway.>

(i) Openly disregard your own advice. (Check)

(ii) Allow government to get away with a weasel definition. (Check)
The government inserted the word "for" after "provide" in Art. 21A. But again, as reading words in goes, this is nothing compared to what's coming up.

(iii) Open the door to future dilution of ALL Fundamental Rights. (Check)
The judgment precisely misstates the relationship between Fundamental Rights & Directive Principles, and appears to privilege the latter over the former.

(iv) Rely on flimsy premises. (Check)

The premise being "Education is a charitable activity". And even that argument is not internally consistent: if it is a charity (to which you give no money) then on what basis can you pick the recipients? 

(v) Contradict yourself again for good measure. (Check)

The premise of charitable endeavour is extended with respect to its purpose. Apparently the purpose of a minority institution is to protect or promote their religion, language, culture etc. - so it is not actually in the sphere of elementary education, & RTE won't be helped by including them. Except that this position does not explain why aided minority institutions are included - and was overruled by the very case cited to show that education is purely charitable anyway.

(vi) Bypass the challenge on Reasonable Classification (Check)

The judgment simply accepts that the classification made is reasonable as required by Art. 14. To be fair, the Act leaves the exact classification of beneficiaries open to State governments, so perhaps a challenge at the national stage would be premature.

(vii) Openly misinterpret established precedent (Check), & thereby

(viii) Engage in a fantastic & unprecedented instance of judicial legislation. (Check)
In India. In a case on access to education as a fundamental right. In a judgment written by the Chief Justice. The Supreme Court. Read into a law where it did not exist. The word "MINORITY". As an exception.

I don't even know what to say. Res ipsa loquitur. 

(This flagrantly violates precedent on the Doctrine of Severability, as laid down in the RMD Chamaurbagwalla case, being instead what that case calls "Judicial Legislation". And we had issues with them reading in the word "for"?)

(ix) Leave the legislative scheme both inoperable & unsecular. (Check)

The minority-run unaided institutions include, in many places, the best schools available, so excluding them seriously dilutes the access to quality RTE purports to achieve. It also means, in effect, that only Hindu (or secular) private unaided schools must give this quota - which is a textbook example of reverse discrimination.
On a related note, since a minority institution includes linguistic minorities - since the judgment brings up the TMA Pai case, which left that possibility open - I'm not even sure what schools are actually left.  

Let's just say, I can't wait for this case to come up in review & be overturned.
Read on, or skip to the last bit on Judicial Legislation & its impact (Point vii-ix).
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(i) The majority judgment itself starts by saying this about Constitutional interpretation:

[A] "To say that a thing is Constitutional is not to say that it is desirable"
(from Dennis vs. USA, a 1950 US Supreme Court judgment)
[B] "...If what has been done is legislation, within the general scope of the affirmative words (i.e. of the Constitution) which give the power, and if it violates no express condition or restriction by which that power is limited, it is not for any Court to inquire further, or to enlarge constructively those conditions and restrictions."

(from a 1878 Indian case, R. vs. Burah)

I pick these up as well, because the judgment, as best as I can tell, goes on to specifically contradict this excellent advice. The decision is one which is "desirable" - although arguably not Constitutional - and was arrived at specifically by enlarging constructively the conditions & restrictions imposed.

(ii) Weasel Petting: From Para 9 of the judgment: 

Where the State must provide something in a manner to be determined by law, it need not actually provide the thing in question. It need only make a legal provision for it.

I'm sorry, but that's sheer sophistry to evade the duty imposed!

(iii) The MOTHER OF ALL Slippery Slope moments.

Normally, the government has had to fight the Court tooth & claw to push an agenda on the basis of Directive Principles over Fundamental Rights, so why the sudden willingness to accept this plank? I am not a fan of slippery slope or thin-end-of-the-wedge arguments, but this is one case where they seem justified. To accept the logic used below is to say farewell to all civil & political rights within our lifetimes!

[A] Such "provision by law" (from Art. 21A / quote from Para 9 above) can be examined to see if it imposes on Fundamental Rights, and if it does, it must be seen whether the imposition is one which is permitted - a "reasonable restriction" as in Art. 19. 

I'm sorry, but even a student knows that "reasonable restriction" is a test under Art. 19, specifically because the text of Art.19 provides for it. There is, for instance, no reasonable restriction on Art. 14, especially when it is read as a guarantee of due process or a bar on arbitrary action. Instead there are the specific exceptions created by Art. 15 & 16 (which is one reason why, though Art. 14 has never been amended, 15 & especially 16 have seen numerous changes) & the doctrine of Intelligible Differentia. At the other extreme, there can be any number of restrictions on Art. 21, provided that they are imposed through the process required & to the extent determined by law. (And before Art. 14 came to be a due process clause, that "procedure established by law" could well have been arbitrary. After all, the decision in ADM Jabalpur v. Shukla in 1976 essentially said no procedure was needed during Emergency.) The point being made is, if you do determine that a law imposes on a Fundamental Right, then that ought to be the end of the discussion. It cannot. If it falls within the specified exceptions, the determination is that it DOES NOT infringe upon the right in question!

Of course, having introduced Art. 21A as a Fundamental Right, we've put ourselves in a fix. What happens when a law (ostensibly) to enforce one Fundamental Right is challenged for infringing another. Is there a hierarchy between Fundamental Rights as well? To answer this, the court came up with:

[B] "In this connection, the first and foremost principle we have to keep in mind is that what is enjoined by the directive principles (in this case Articles 41, 45 and 46) must be upheld as a "reasonable restriction" under Articles 19(2) to 19(6)."

I'm sorry, WHAT? Rarely have I seen a more dangerous statement, or one that more precisely misrepresents the nature of both Fundamental Rights & Directive Principles. Jurisprudentially, we recognise negative rights & positive (or enabling) rights. Some Fundamental Rights are negative rights. They are prohibitions or restrictions on actions of the State (& often of private individuals as well). Others are enabling rights, which the State must strive to provide to its citizens. Usually, the former are civil & political rights, the latter are economic, social & cultural rights. So, Art. 14, 19 & 21 in particular are powerful negative rights, although Art. 15, 17, 18, 20, 22, 23 & 24 all prohibit specific actions by the State or citizens. Art. 25-30, by contrast, are enabling socio-cultural rights.

Art. 16 & 31 are rather telling provisions peculiar to India: they are expressly written exceptions to the negative rights introduced & amended by successive governments to protect (from the scrutiny of Art. 13 & 32) such items on their agenda as could not survive the challenge of those negative rights: reservations in public employment & land acquisition policy. And yes, such actions have usually been justified on the grounds of seeking to give effect to Directive Principles of State Policy. This is because the Directive Principles represent that body of enabling rights which we cannot yet afford to implement. Art21A migrated from Directive Principles to being a Fundamental Right precisely because (this government appears to believe) we can afford it - or perhaps that we cannot afford to ignore it any longer. Sweden, I believe, recently guaranteed its citizens broadband internet access - & perhaps one day India will do that as well.

This should serve to clarify the relation between Directive Principles & Fundamental Rights. Namely, that a State must try & secure all the former WITHOUT infringing on any of the latter. Or, in the simplest terms, the State must try to do all it can to secure such rights, EXCEPT what it is forbidden to do.

In other words, exactly the opposite of what the Court now suggests. The grounds for being seen as a reasonable restriction on Art. 19 are in Art. 19 (2) through (6), not in Part IV or IV[A] of the Constitution.

(iv) The Flawed Premise: My arena is only a millimetre (but even there, I'll trip up)

Here's what the court has to say about Education (Para 9):

"One more aspect needs to be highlighted. It is not in dispute that education is a recognised head of "charity" [see T.M.A. Pai Foundation v. State of Karnataka (2002)]. Therefore, even according to T.M.A. Pai Foundation, if an educational institution goes beyond "charity" into commercialization, it would not be entitled to protection of Art.19 (1)(g)."

TMA Pai?! You want to rely on TMA Pai? (Anyone who has had to read it will understand my incredulity.) So you're proceeding based on a judgment that answered almost none of the questions raised before it, and where it did, the answers are largely unhelpful. Hmm, actually, that's a pretty good summary of this judgment as well.

Okay, if you insist, here's what TMA Pai says:
+ Minorities are to be decided on a state-wise basis (not clear if this means only linguistic minorities, or religious & linguistic minorities both).
+ WE NEED NOT SAY if a sect is a minority in a certain state.
+ WE NEED NOT SAY on what basis an institution is a minority institution.
+ A professional college can be a minority institution (Art. 30 says "of their choice").
+ Govt. can't regulate admission to an unaided minority institution. It can only lay down minimum standards & insist that the process is transparent & internally merit based, whereas institutions that receive aid forfeit this absolute control over admissions.
>>> Unaided Institutions can select any admission procedures but *ought* to use merit.
>>> Aided institutions must use merit based procedures, subject to reservations.
>>> Even in questions of management & administration, unaided institutions are subject only to minimum standards laid down by government & following rational procedures.
+ WE NEED NOT SAY if a state-based linguistic minority can run "minority institutions" in other locations, i.e. outside that state, or v.v. (a majority in one state run a "minority institution" in another.)
+ The decision in St. Stephen's College vs. University of Delhi is wrong: Art.29 (aided) & Art. 30 (unaided) are disjunctive categories, they need not be balanced.

+ The scheme in Unnikrishan JP vs. State of Andhra Pradesh is unconstitutional: while there should still be a ban on capitation fees, REASONABLE SURPLUS is not profiteering.

+ On the right to administer & run educational institutions, I quote:

"The right to establish and administer educational institutions is guaranteed under the Constitution to all citizens under Article 19(1)(g) and 26, and to minorities specifically under Article 30. All citizens have a right to establish and administer educational institutions under Articles 19(1)(g) and 26, but this right will be subject to the provisions of Articles 19(6) and 26(a). However, minority institutions will have a right to admit students belonging to the minority group, in the manner discussed..."

[A] TMA Pai explicitly provides that, even if education is not meant to be conducted for profit, maintaining a reasonable surplus is not profiteering. It explicitly rejects the scheme in Unnikrishnan, except where it declares primary education a fundamental right, & where it bans capitation fees. Nowhere does it insist that education must be (or can only be) charitable.

So, yes, it is not in dispute that education is a recognised head of charity. What is in dispute is, can it exist ONLY as a charity? Is education on a not-for-loss basis, for instance, illegal?

[B] TMA Pai distinguishes between institutions on the basis of whether they are aided or unaided, not minority / non-minority run. This is in keeping with its expansive definition (or, rather, unwillingness to restrict the definition) of a minority. (To be fair, as a Constitutional Bench, the Court in TMA Pai scrupulously refused to comment on anything that did not inevitably require Constitutional interpretation. Not that this was helpful.)
As the quote shows, though, anyone can run an educational institution, subject to Art. 19(1)(g) Freedom of Occupation, while a minority can run an educational institution with additional privileges u/Art. 30, but anyone - even a minority - that receives aid is subject to government regulation u/Art. 15 & 29(2) respectively. The judgment in PA Inamdar vs. State of Maharashtra (2005) also clarified & upheld this exact distinction.

[C] This distinction is made precisely because neither Art. 19(1)(g) - read w. 19(6) - nor Art. 30 consider allowing the government to impose quotas in private institutions. (Insisting that open category students be admitted in minority institutions would amount to a reverse quota.) They only speak of setting out minimum standards, e.g. of qualifications or workplace quality, etc. On the other hand, the moment one accepts aid from the government, one accepts the reservation policies in admission (Art. 15/29) as well.

[D] The argument has thus been restricted, on an academic level, to the impact of Art. 19 & Art. 30 on government regulation of access to the charitable endeavour of education. This is absurd, because it both excludes the reality of education in this country & is inherently logically untenable.

[E] Education is not a charitable endeavour. Private institutions, while not charging a capitation fee, do charge amazingly high fees for tuitions, facilities etc. They also largely deliver quality - because otherwise parents move children to their competitors. So the Court is now talking about a vanishingly small percentage of actual unaided schools.

[F] If education actually is charity, then why on Earth would the government get to pick the recipients? Of course, if they are funding this charity, they can nominate beneficiaries - which is why nobody has an issue with Sec. 12 (a) or (b) of the RTE Act. Where they are not, though, then this is akin to telling a private philanthropist, "you can do charitable work here, but you must include those we name for charity". Can you imagine the government telling the Ford Foundation that, in the houses they build for UN-HABITAT, 25% must go to "the disadvantaged & weaker sections" in that state?

[G] So we are left with an argument that says, in regulating a Charitable endeavour, there is a special protection (to unaided minority institutions, u/Art. 30) that gives them absolute control over admissions, so to make our rules apply to their charities is Unconstitutional. Everyone else, however, must follow these rules. Which is why the Court had to except the absurdity dealt with in pt. (iii) above to justify Sec. 12 of RTE as a "reasonable restriction" on Art. 19 - which it isn't, because it's not under Art. 19(6).

(v) Minority Institutions are not "schools"

Another set of contradictions. 

This seems to be the logic: since a minority educational institution exists "for the protection of their unique language & culture", it's raison d'etre as such is not to impart primary education. Which is why it cannot be brought into the ambit of RTE - it offers no benefit to promoting primary education as such. 

[A] Leaving aside that this is a breathtakingly academical view - even taken at face value, it contradicts the answer to Qn.4 in the TMA Pai judgment: a minority can establish educational institutions "of their choice", even for professional education. ONE characteristic of these institutions, or ONE aim for which some may be established, can indeed be to protect or promote their language, culture, script etc. In both TMA Pai & PA Inamdar, though, the idea is clearly countenanced that an educational institution may work for upliftment of a particular community precisely through providing education.
(This is why no one quotes TMA Pai. It supports, in effect, everything - which also means that it's bound to contradict you somewhere else.)

[B] If this is true, how does it then help to have quotas in aided minority institutions? It's not as if the government is regulating their syllabi, curricula or pedagogy as a function of aid (except to prevent obvious discrimination), nor does RTE contemplate mandating a particular syllabus for all aided institutions. This logic should then rule out all minority institutions, right?

[C] Alternately, if this is not true (& having lived through Jesuit schooling, I can tell you that it isn't), why can the quota in RTE not be suitably modified for minority unaided institutions. Remember, what TMA Pai says is that they have a right to admit their own community in  their institutions. So don't require them to admit outside the communities they would have admitted, but require them to take 25% of the economically weakest within that community for free! This would not "change their composition" beyond their original objective, as the Court worries. 
(And, as charitable institutions working for the betterment of their communities in the first place, they should have no issues with such a provision. Especially since the government will pay them some amount per "free" student.)

In fact, if you allow them to function as always, but simply make 25% of the seats free, I strongly suspect even those from outside that community would happily send their children as well. There are enough parents who would think like this: better a madrassa, synod, whatever, over no school (or no functional school) at all. So what if the child learns only in Urdu? Even that is better than being illiterate. Anecdotal evidence from regions lacking a functional government or private school tends to support this hypothesis.

(vi) Of Course It's Reasonable! It says "for the poor" on the label.

From Para 10 of the judgment:

"Earmarking of seats for children belonging to a specified category who face financial barrier in the matter of accessing education satisfies the test of classification in Art. 14"

One can't particularly dispute this here, because the Act leaves the actual allotment of quotas to each State government. I just want to emphasize that the Supreme Court has identified, as the basis for the reasonable classification, the economic consideration - the children must face a financial barrier to accessing education.

As you will see (in #4), the States definitely don't see it that way. That's a lot of potential High Court lawsuits - & as long as this SC judgment stands, those are open & shut lawsuits - in the making.

Also, in this respect, the Court itself makes a curious classification: RTE can apply to day scholars at boarding schools, but not to boarders. Presumably this is because the right is only to education, and not to board & lodging. But if we relate the boarding experience to quality of education, then the same Art. 14 argument can surely apply here as well? If the argument is about access to a certain minimum standard of education, why exclude the minority schools?

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(vii) & (viii). Unprecedented Judicial Legislation
This part will leave me in shock no matter how often I read it. I'll stick to the basics.
The Court ruled that the RTE Act could operate, except where it would apply to Minority unaided institutions under Sec. 12(c). It justified this distinction on the basis of the Doctrine of Severability, as outlined specifically in the case of RMD Chamarbaugwalla vs. Union of India (1957).

Problem. The FIRST PRINCIPLE OF SEVERABILITY as contemplated by Chamarbaugwalla is YOU CANNOT ADD NEW WORDS. Only strike out existing ones. That is, the case specifies that principles contained in a law must be related to actual provisions, so that specific provisions (or parts thereof) - the parts deemed both severable & required to be severed on grounds of Unconstitutionality - can be struck out. If the remaining portion is capable of operating independently, it will remain in operation. Failing this - if the impugned portions are not severable from the scheme of the legislation in question - then the entire Act will be struck down.

In determining severability, the Court may examine the intent of the legislature: was the Act as a whole intended to apply to the impugned category in particular, and will the intent of enacting the legislation survive if it is struck out? If yes, then the part is struck out, and the rest of the legislation can be given effect. What the Court cannot do, however, is introduce its own terms to replace or clarify meaning. This, according to the Chamarbaugwalla case, is "JUDICIAL LEGISLATION" & thoroughly impermissible.

To enable RTE to operate except with respect to minority unaided institutions, however, the judgment here has read in the word "Minority".

Read that again. In India, where that word is political dynamite, and elections are won or lost over its definition, inclusion or exclusion, the court simply read it in - while considering universal access to elementary education as a fundamental right, no less - into an Act WHERE THE WORD WAS NEVER MENTIONED.

Just to put this in context. Imagine:

[A] Reading a judgment that somehow applied Maneka Gandhi vs. Union of India to determine that an arbitrary action is not banned by Art. 14. At a minimum, someone would point out that, with all due respect (probably said with noticeable sarcasm), the principle had been completely misinterpreted & misapplied. So what happens when the Chief Justice of India misapplies an even older principle of Constitutional interpretation?
[B] Reading a statement to the effect that Muslim schools exist only to teach Islam, not to educate children, so they should not be considered schools at all. You'd be labelled a hardline Hindutva nutcase. If it was a big enough leader saying it, riots could ensue. So what happens when the Chief Justice of India says it? 

In effect, this judgment:

[A] Openly violates the precedent in Chamarbaugwalla's case - which has never been challenged before - without apparently trying to change or expand it. This is what we meant by "error apparent on the face of the record".

[B] Engages in the most blatant example of law-making by the judiciary I have ever seen.

[C] Clearly defeats the legislature's intent with respect to the legislation. If the legislature wanted only Hindu schools to offer quotas, it would have said so, so the provision that is left is now deeply unsecular at worst, simply unenforceable at best.

[D] Misses the more obvious available severability, of Sec.12(c) as a whole, which is what the applicants were asking for in the first place.

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(ix) WHAT DOES IT ALL MEAN NOW?
<The Counterproductive Part, #3>

It means that the RTE Act has been impoverished & turned into a parody of a secular legislation. It is no secret that in India, many of the best schools are run by various religious orders, particularly Christian missionaries. "Convent education" is a byword for a desirable standard of education. By placing all of those very institutions (except the ones receiving government aid) beyond the purview of the Act, the judgment has excluded precisely those schools that - from the point of view of quality, facilities, financial wherewithal or a commitment to service - were best suited to implement it. Worse, it has created a situation of reverse discrimination, where only non-minority run unaided institutions must provide reservations, EVEN IF they too are primarily oriented to protecting or promoting a certain culture. After all, it's not as if Hindu culture spreads more or less automatically than any other - it too has to be taught, and (for one who wants to promote it) if not in the school, then where?

Of course, even that's an optimistic statement. Minority institutions can include linguistic minorities as well: this is one of the very few things the judgment in TMA Pai clearly & unambiguously mentions. Of course, it is utterly ambiguous as to who constitutes a linguistic minority, or whether an institution opened by a designated minority of one state in a state where it is not a minority is considered a minority institution or not. In other words, anyone who is inclined to can have their institution declared a minority institution - it only needs a little obliging of the relevant bureaucracy - and evade having to provide such quotas. So in very short order we may find ourselves wondering which private schools the RTE applies to at all!

I ask, again: How is this a step forward, towards education for the poor?

I ask because, despite all the damage that this judgment will inflict - to the RTE scheme, and to the reputation of the Court itself - the experiment with quotas will still be worth it, if it brings education to the poorest. Part 4 will explore if this will happen - or if RTE is even intended to make it happen.


NEXT:
(Part 4: http://kianayema.blogspot.in/2012/08/wrong-to-education-part-4-asses.html)