Education in India

Tamil Nadu Govt introduces Bill to Prohibit Private Players in Legal Education

A new bill - the Tamil Nadu Establishment of Private Law Colleges (Prohibition) Act, 2014 (full text) - was introduced in the Assembly by the Tamil Nadu Government on July 30th. The objects and reasons for the bill are described by the government as follows (the emphasis on the key words below is mine):

The Government have taken a policy decision to establish adequate number of Government Law Colleges in the State in a phased manner, to impart legal education at affordable cost. The past experience reveals that private trusts/societies are not able to provide legal education at affordable cost to the economically and socially weaker sections and also not able to continue to run the law colleges successfully. The Government have, therefore, decided to prohibit the establishment of law colleges by the private persons in the State by undertaking legislation.

This raises some questions:

• Is this bill arising out of ideological considerations (i.e. private provision is not good), or, is it arising in response to concerns felt/expressed by the public that they do not want private players to set up and run educational institutions? Or a very complex combination of both?
• Does the government have the right to control citizens' access to education by determining what is the 'adequate' amount of supply and restricting supply beyond that? What if citizens' perception of 'adequate' is far higher than the government's?
• Can the government insist that education must be provided to the public at a price not more than a certain price deemed by the government as 'affordable' to the public, irrespective of the costs incurred by the education provider?
• What kind of criteria should the government use to determine if an educational institution is being run 'successfully' or not? Shouldn't the government make public such criteria/standards, so that educational institutions know the standards that they are expected to live up to?
• Can the government 'prohibit' private parties from establishing educational institutions by law even if the private parties are willing to abide by all the rules and regulations imposed by the government on existing institutions, either government or private?
• Isn't the proposal for this Act by the Tamil Nadu government an admission of their inability to properly regulate private Law Colleges that are not run 'successfully'? Are they throwing out the baby with the bathwater because of their inability to separate the private Law colleges that are run well from those that aren't run well, and deal with each appropriately?

It seems inevitable that this bill will end up in Court.

Competition between different levels of government in education

With private school enrollments increasing over the years, government schools are in effect in competition with private schools for students. But there is another kind of competition in play in the education sector - the competition between the local governments, the state government and the central government.

T.R. Raghunandan's recent piece at Accountability Initiative helps put this kind of competition in context. Here is what Raghunandan wrote:

In a landmark book, named Competitive Governments, Albert Breton turned the concept of decentralization on its head.

The classical idea of decentralization is that different levels of government ought to be given clear and exclusive responsibilities. It is hypothesized that this will drive people to hold each level of government accountable for what they ought to do and consequently, service delivery will improve.

Breton, came up with an alternative hypothesis. He proposed that governments could be competitive in their relations with each other and in their relations with other institutions in society, such as private providers of services, in supplying consuming households with goods and services. He contended that such competition between government levels and private service providers would enable households to make efficient choices as they would individually make the links between the services that they pick from each provider, based upon the tax prices that they pay for these goods and services.

...

This is a really chastening thought for pro-decentralisers like me!

Let me illustrate whether the thoughts of Albert Breton and Jack Weldon are relevant in the real world. One does not need to go far to seek out examples. In India now, we have a significant number of people who have obtained the ‘Aadhaar’, which is a unique identification number. Earlier, identification was a local activity. If an individual moved from one place to another, she needed to cancel her ration card in one location and obtain a new ration card in another. This was terribly inconvenient and corruption prone. Now, the Aadhaar number is universally accepted all over India. Seen in the light of theory, the Aadhar number is thus a mechanism by which the central government has managed the ‘externality’ of identification. However, this leads to some interesting spinoffs. With a relatively more reliable identification process in its hand, it is possible for the central government to centralize the delivery of pro-poor services through a direct cash transfer. For instance, using the Aadhaar number, the centre could send pensions directly to all senior citizens, with little work for the State or the local government to do, because the externality of identification has been managed at the top through the UID.

So how would this apply in the education sector? Govt funded schools in India have been run by different levels of government including panchayats, zilla parishads, municipal corporations, state governments and the central government (Kendriya Vidyalayas, Navodaya Vidyalayas, Sainik Schools etc..). The state governments also have indirect control over all government-aided schools under private management. I don't know if anyone has studied how competition between these various levels of governments in running schools has been playing out, right from the pre-independence era.

One example is the Kendriya Vidyalayas (KVs). In the early 1960s, the Central Government set up the KVs to address the problems faced by the children of transferable central government employees who have to move across the country. Transferring from one state board curriculum to another, at possibly different levels and, with a different set of languages would have been a nightmare for children of such employees. The KVs are present across all states and provide uniformity in the curriculum as well as continutity in the school year across all schools. They are entirely under the purview of the Kendriya Vidyalaya Sanghatan, a central government body, and the state governments have no say in how they are funded or run.

Although admissions to KVs are restricted to children of Central Government employees, what if the central government could set up many more KVs or other such schools across the country (there are around 980 now) and also open up admissions to any child. I wonder if there are any restrictions on the Kendriya Vidyalayas or the Central Government from doing something like this. For instance, Tamil Nadu has not permitted the Central Government to run a Navodaya Vidyalaya in the state.

Currently, control of schools is pretty much concentrated with the state governments. They call the shots for all schools run by lower levels of government. The central government provides some funding to the states, but doesn't have a say in the administration of schools. If, and when, the state governments decide to actively devolve power and control of schools, including financial and administrative autonomy for running schools to the lower levels of governments, some interesting possibilities may emerge. These schools are likely to be more responsive to parents and children and more accountable for learning outcomes. The idea of devolution has been discussed for a long time now, but the political class, the bureaucracy and the teacher community seem to have little incentive to do so. It will probably happen only after sustained bottom-up political pressure is mobilised by the parents at the grassroots level.

Another type of competition between governments that is playing out is at the level of accrediting bodies, the school boards. An ongoing case in the Supreme Court (Special Leave Petition (Civil) 16 of 2013 - Asso. of Management of Pvt. Schools(CBSE) .Vs. State of Tamil Nad & Ors.) highlights this.

The Tamil Nadu Legislature passed the Tamil Nadu Private Schools (Regulation of Collection of Fee) Act, 2009 that allows the Government to determine and specify a ceiling for fees for each school. Private schools in Tamil Nadu affiliated to the CBSE and ICSE went to the Madras High Court arguing that by dint of their affilation to the CBSE/ICSE, they could not be regulated by the State Government. The CBSE's counsel also made the same point in the case arguing that the State Government will not be entitled to regulate the fees by enforcing a rigid fee structure on CBSE schools. But the Madras High Court ruled (Writ Petition 28305 of 2010) in favour of the Government of Tamil Nadu in September 2012.

The case is now in the Supreme Court and it's decision on this is due early next month.

Govt backtracks on home schooling; says not permitted under the RTE Act

In a volte face, the Govt has reversed its view (filed earlier in an affidavit in the Delhi High Court) that home schooling is permissible under the Right to Education Act.

Deccan Herald reports

The Union government took a U-turn before a division bench of the Delhi HIgh Court, saying its earlier stand that the Right to Education Act does not come in the way of home-schooling was "incorrect and contrary" to Section 10 of the Act.

The Centre had sought time to file a fresh affidavit clarifying its stand.

...

Advocate Ashok Agarwal, in the capacity of an intervener appointed by the High Court in this case, had objected to the government's and the petitioner's stand in their affidavits.

"The demand on the part of the petitioner for home-schooling or alternative forms of schooling and the stand taken by the Union Government in support of such demand through counter affidavit dated July 16, 2012 is based on completely casual and erroneous interpretation of the letter, spirit and intent of the RTE Act," he had submitted in his response.

The Delhi High Court directed the Union of India to file its counter affidavit by December 19th, 2012.

Case Details:

Delhi High Court Case no. W.P.(C) 8870/2011

SHREYA SAHAI AND ORS  Vs. UOI AND ORS
Advocate: Somnath Bharti

(APPELLATE JURISDICTION) , COURT NO. 1 ,  (DIVISION BENCH-1) 
HON'BLE THE ACTING CHIEF JUSTICE , HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

Additional Respondents:

Ashok Aggarwal
Central Board of Secondary Education 
National Institute of Open Schooling
Association of Unaided Private Schools

Jandhyala B G Tilak, has argued in the Economic & Political Weekly that the affidavit submitted in July 2012 by the Government to the Delhi High Court permitting home schooling under the Right to Education Act contradicts the letter and spirit of the Right to Education Act.

The Prohibition of Unfair Practices in Schools Bill, 2012 - full text of the draft

The Central Advisory Board of Education (CABE) has come up with a draft legislation for prohibiting unfair practices in schools.

A copy of the full text of the draft of  The Prohibition of Unfair Practices in Schools Bill, 2012 can be downloaded here (~15MB pdf).

I quickly scanned through it and at first glance, the bill seems to be excessively harsh and severe on the schools, although there are some very good clauses too, which could bring about much needed transparency in the functioning of schools.

The proposed draft legislation was to be presented before the Central Advisory Board of Education (CABE) meeting on November 1st, but Business Standard reports that the CABE Committee meeting for November 1st was postponed due to the change of guard at the Ministry of HRD.

According to a report in Law et al, even before the Government officially published the draft of the bill,  the Independent School Federation of India (IFSI) filed a petition in the Delhi High Court on this and the Court has already issued orders on the petition.

The Delhi High Court on Wednesday directed the Central Advisory Board of Education (CABE) to publish on its website the proposed “Prohibition of Unfair Practices in Schools Bill, 2012" framed by it.

A bench of Justice Rajiv Shakdher was today hearing a petition by Independent School Federation of India (ISFI) seeking direction to CABE to give appropriate hearing to all before finalizing penal provisions in the proposed Bill.

ISFI also sought direction to Ministry of Human Resource & Development (HRD) to give appropriate representation to the managements of private schools in the composition of CABE to give their suggestions.

In its petition ISFI has alleged that although CABE gave lip-representation to academicians but no representation is given to private management.

The proposed legislation would be presented before the Central Advisory Board of Education (CABE) meeting on November 1.

Delhi High Court case details:

Delhi High Court Case no. W.P.(C) 6857/2012

INDEPENDENT SCHOOL FEDERATION OF INDIA & ANR  Vs.   THE UNION OF INDIA & ANR
Advocate: SK Chauhan

The orders passed by Justice Rajiv Shakdher have not yet been uploaded on the Delhi High Court website, at the time of writing this post. The next hearing of the case is scheduled for November 5th.

Schools seem to fear that the Government will ride roughshold over their concerns and drive the bill through Parliament without giving them a fair hearing. Hence the pre-emptive petition by ISFI in the Delhi High Court. Though the ISFI has taken up the cudgels on behalf of the schools, correspondents and principals of all private, aided and unaided ought to go through the draft bill and consider the legal and practical implications of the bill, if it becomes law in the proposed form. Various associations of schools across the country would do well to print and mail a copy of the draft bill to each and every school correspondent/principal to ensure they are aware of the bill and can provide their feedback.

There needs to be widespread public debate on the draft bill with the views of schools, teachers, parents and the policy establishment taken into account to improve the draft legislation, before it becomes law.

Home schooling is now permissible under the RTE Act. Govt. Clarifies the word "Compulsion"

IMPORTANT UPDATE:

On Oct 17, 2012, the Government reversed its earlier stand (referred to in the original post below) and now says home schooling is NOT permissible under the RTE Act. For more details, see new post on this. The Government will be filing a fresh affidavit on this in Delhi High Court on December 19, 2012.

--------------------- Text of my original post continues below ---------------------

The Government has clarified in the Delhi High Court that parents interested in home schooling their children or adopting alternate forms of education are now perfectly at liberty to do so. According to a report in the Indian Express (July 20, 2012),

In response to a public interest litigation, the Ministry of Human Resources Development filed an affidavit in the Delhi High Court, which stated that

"Parents who voluntarily opt for alternate forms of schooling may continue to do so. The RTE Act does not come in the way of such alternate schooling methodologies or declare such form of education as illegal."

The Ministry’s response came after the High Court directed it to respond to a petition filed by a 14-year-old girl, Shreya Sahai, who opted for home schooling but contended that Section 18 of RTE Act does not recognise any other mode of imparting education except the one through formal schooling.

“The benefits of all children aged 6-14 years and their parents who feel threatened because their right to choose a mode of education for primary education stands violated as the Act restricts the same only to a formal school,” she said.

All other modes of imparting education, except a formal school, like home schooling, alternate schools of education and the schools not subscribing to the norms and curriculum mandated in the Act stand declared illegal under sections 18 and 19 of the Act, said the petition. 

The Hindustan Times (July 20, 2012) adds,

The affidavit clarifies that the Act concerns itself with the rights of children, and is not a compulsion. “The compulsion is on the appropriate government and the local authority to provide free education to all children up to 14 years,” the affidavit said.

This statement in the affidavit provides complete clarity on the connotation of the world "compulsion" in the RTE Act. The compulsion is on the state to provide free education and not on the citizens to be educated in a conventional school.

Case Details:

Delhi High Court Case no. W.P.(C) 8870/2011

SHREYA SAHAI AND ORS  Vs. UOI AND ORS
Advocate: Somnath Bharti

(APPELLATE JURISDICTION) , COURT NO. 1 ,  (DIVISION BENCH-1)
HON'BLE THE ACTING CHIEF JUSTICE , HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

Additional Respondents:

Ashok Aggarwal
Central Board of Secondary Education
National Institute of Open Schooling
Association of Unaided Private Schools

PILs filed in the Supreme Court to challenge the 93rd amendment

A public interest litigation has been filed in the Supreme Court to challenge the validity of the 93rd amendment according to The Hindu (May 30, 2006).

The Supreme Court on Monday refused to stay the 93rd Constitutional Amendment Act, but issued notice to the Central Government, the States and the Union Territories on a public interest litigation (PIL) petition challenging the Amendment's validity.

The court issued notice on the PIL petition by educator and business consultant Shiv Khera and on another by Supreme Court senior counsel Ashoka Kumar Thakur, seeking the Court's intervention to ensure that the Centre submitted all relevant reports and data on which it had based its decision.

Mr. Thakur's petition challenged the basis of the Mandal Commission's conclusion that OBCs constituted 52 per cent of the total population. The National Sample Survey Organisation had estimated it as 32 per cent and the National Family Health Survey 29.8 per cent.

Mr. Khera challenged the constitutionality of the 93rd Amendment Act, saying it was discriminatory and violated the fundamental right to equality. The Amendment inserted Article 15(5), enabling the state to make any special provision for the advancement of "any socially or educationally backward classes" or for the Scheduled Castes or the Scheduled Tribes, insofar as these provisions related to their admission to educational institutions, including private ones.

The court gave the Centre six weeks to file a rejoinder.

Whether the 93rd Amendment will survive the "basic structure" test remains to be seen, but there is certainly likely to be a lot of debate on the NSSO data and the extent of reservation.

No-objection Certificate from state governments required for private, unaided schools seeking CBSE affiliation?

Does a private, unaided school seeking affiliation to CBSE require a no-objection certificate from the state government of the state in which the private unaided school is situated? The Delhi High Court has ruled that a no-objection certificate from the state government is a must and that decision is currently on appeal in the Supreme Court. If the Supreme Court upholds it, state governments will have a means to control the growth of private, unaided CBSE schools in their respective states, which would not be good at all. Things like this could happen in any state.

Here's the background to the case currently before the Supreme Court. There was a Delhi High Court ruling on September 08, 2005, in a case involving a private, unaided school (run by Tushar Welfare Society), seeking affiliation to the CBSE, which had applied to the Uttar Pradesh State Government for a no-objection certificate, to which the state government never responded. The CBSE had declined affiliation to the school on the grounds that it had not submitted the no-objection certificate from the state government, which it claimed was a requirement according to the bye-laws of the CBSE. The school obviously couldn't submit the no-objection certificate because the state government was dragging its feet for some reason. The school filed a writ petition in the Delhi High Court arguing that the CBSE's constitution stipulated that a no-objection certificate was required only for state-funded schools and the bye-laws could not extend that to private, unaided schools, and over-ride the CBSE's constitution. Justice Vikramajit Sen of the Delhi High Court agreed and ruled in favour of the private, unaided school and asked the CBSE to recognise the school even without the no-objection certificate, if it satisfied all other conditions.

Justice Vikramajit Sen also made a few other interesting observations in his ruling (of September 08, 2005), which are excerpted below (emphasis is mine). These observations were criticised by two other judges of the Delhi High Court when this matter went on appeal (see below).

7. The Constitution of the CBSE requires the concurrence of the State Government concerned if in those cases where an Institution receiving 'regular maintenance or grant-in-aid from a State' applies for affiliation to the CBSE. There is sufficient reason for this stipulation since the State which is disbursing grant-in-aid to an Institution must retain the power to decide inter alia whether such Institutions should prepare the students for appearing for examinations conducted by the State itself or jointly by the State Education Boards as well as Central Boards such as the CBSE. Equally, Institutions which do not take aid from the State must have the freedom to choose whether they will prepare its students to appear in a Central or State Board examinations. If Central Boards are increasingly preferred over State Board, one of the consequences would be that High Courts throughout the country would not be burdened with several Writ Petitions dealing with the grant of equivalence of educational qualifications. It is widely experienced that one State does not automatically grant recognition to educational qualifications obtained from another State and educational standard vary drastically. The most effective solution is to be found in students appearing in one of the Central Board examinations such as conducted by the CBSE. The difficulties and problems that are endemic in varying and deferring standards of State Education Boards would automatically be obviated.

8. In this analysis, therefore, the CBSE is adopting a retrogate practice and stand in insisting that State clearances should be taken even by School which are private and unaided. In the present times, control and interference of the State is consciously being minimised. It would be a progressive step if educational institutions maintain themselves and regulate their affairs without drawing upon the State funds for which there invariably are many other suppliants. Where the parents of students are unable to afford the fees of private institutions, State schools should be available, as they presently are. No further regulation of education is called for. It is this ethos which has been expressed in the Constitution of the CBSE itself. All institutions which fall in the category of being private and unaided need not therefore obtain the concurrence and prior approval of a State Government for applying for affiliation to the CBSE. This is also what the Constitution of the CBSE itself envisages. The Bye-laws of the CBSE which require the concurrence and/or approval of the State Government are clearly ultra vires, and are, therefore, struck down. Private institution which obtain affiliation to the CBSE or any other Central Board need not have any connection with the State in which it is located, apart from it following and adhering to local laws including labour legislation.

The CBSE then appealed the decision in the Delhi High Court, which was heard by the Chief Justice Markandeya Katju and Justice Madan Lokur who delivered a judgement on December 09, 2005 which set aside the judgement of September 08, 2005 of Justice Vikaramajit Sen and dismissed the original writ petition filed by Tushar Welfare Society. Some excerpts from the December 09, judgement make interesting reading.

15. In para 3 of the counter affidavit it is stated that the CBSE is discharging the function of conducting examinations, prescribing educational courses and generally maintaining standards of school education and advising the Government of India when called upon to do so on matters pertaining to school education. The CBSE frames its own rules and is governed by them and it has not been created under any statute. The CBSE is an autonomous and independent body, and no part of its expenses for running the organization is borne by the Government. It gets no aid, grant or subsidy from the Government and is not a State under Article 12 of the Constitution.

This is an interesting point, which I had not been aware of. According to the CBSE web site, "CBSE is a self-financing body which meets the recurring and non-recurring expenditure without any grant–in–aid either from the Central Govt. or from any other source. All the financial requirements of the Board are met from the annual examination charges, affiliation fee, PMT examination etc."

But the CBSE web site also states that the "The Education Secretary, MHRD, Govt. of India is the Controlling Authority of the Board. If the Board does not, within a reasonable time, take action, to the satisfaction of the Controlling Authority, the Controlling Authority may, after considering any explanation furnished or representation made by the Board, issue such directions, consistent with this Resolution, as he may think fit, and the Board shall comply with such directions." So its autonomy is questionable.

17. Thus it is evident that although the CBSE was initially created by the Central Government by the Resolution dated 01.07.1929, subsequently the appellant was registered as a society registered under the Societies Registration Act, 1860. Hence after its registration on 02.01.1935 it ceased to be a limb of the Central Government and became an independent and distinct legal entity.

24. In Para 06 of the impugned judgment the learned Single Judge has observed :- So far as regulations or bye-laws vis-a-vis a statute are concerned it is firmly entrenched in our jurisprudence that a delegate would exceed the jurisdiction and the powers vested in it if it were to go beyond the provisions of the Statute which has created it.

25.There is no disputing the proposition which the learned Single Judge has referred to in the above observation. However, with due respect to the learned Judge what has not been taken into consideration by him is that there was no statute which created the CBSE but only a Resolution of the Central Government dated 01.07.1929. That Resolution is only an executive order and not a statute. Subsequently, the CBSE became a registered society under the Societies Registration Act, 1860 on 02.01.1935. Hence from 02.01.1935, the society is no longer a limb of the Central Government, but is a distinct legal entity like a company registered under the Companies Act, 1956. Hence from 02.01.1935 the CBSE is no longer governed by the Resolution of the Central Government dated 01.07.1929. It is this vital point which has been over looked by the learned Single Judge and hence in our opinion, the said judgment cannot be sustained.

26. The learned Single Judge in para 8 of the impugned judgment has further observed:- In this analysis, therefore, the CBSE is adopting a retrograde practice and stand in insisting that State clearances should be taken even by Schools which are private and unaided. In the present times, control and interference of the State is consciously being minimized. It would be a progressive step if educational institutions maintain themselves and regulate their affairs without drawing upon the State funds for which there invariably are many other suppliants. Where the parents of students are unable to afford the fees of private institutions, State schools should be available, as they presently are. No further regulation of education is called for. It is this ethos which has been expressed in the Constitution of the CBSE itself. All institution which fall in the category of being private and unaided need not therefore, obtain the concurrence and prior approval of a State Government for applying for affiliation to the CBSE.

27.With profound respect to the learned Single Judge, we are of the view that using language like "retrograde practice" and remarks like "in the present times, control and interference of the State is consciously being minimized", are wholly irrelevant and misplaced. The court has to decide a case on legal principles and not on its own notions of what is "retrograde" and what is "progressive".

34. In our opinion, it is entirely for the Board to lay down the rules for grant of affiliation. This is a policy matter, and it is not proper for this Court to interfere in this.

45. The bye-law 3(i) which requires a No Objection Certificate from the State Government before grant of affiliation to a school is a policy decision of the CBSE, and it is well settled that in policy matters this court should not ordinarily interfere.

The Independent Schools Federation of India has appealed in the Supreme Court on April 13, 2006 against the Delhi High Court judgement of December 09, 2005. The Hindu (April 16, 2006) reported on this appeal.

The Supreme Court has issued notice to the Central Board of Secondary Education on a special leave petition challenging a Delhi High Court order, which said it was mandatory for a school seeking CBSE affiliation to obtain a no-objection certificate" (NoC) from the State Government concerned. A Bench consisting of Justices K.G. Balakrishanan and P.P. Naolekar issued the notice on Thursday.

The petitioner, Independent Schools Federation of India, contended that the by-law, making it mandatory for schools seeking affiliation to the CBSE to get the NoC, was violative of the government resolution by which the board was constituted. As per this resolution, affiliation could not be denied to an unaided school if it failed to secure the NoC.

The petitioner said it represented hundreds of unaided public schools seeking affiliation to the CBSE in the interest of the children of government servants with transferable jobs, who might otherwise have to contend with different syllabi and different courses being followed in various States.

The petitioner cited clause 9 of the July 1, 1929 Central Government resolution, which laid down that the State Government's concurrence was mandatory if a school was getting grant-in-aid from it. This clause was not applicable to unaided public schools, which were not getting any grant-in-aid from the State.

Note the mention of the terms "public schools" and "children of government servants with transferable jobs" in the report above. What is meant by "public schools"? How are they different from private, unaided schools on which the Delhi High Court had ruled earlier?

While The Hindu had reported on the September 08, 2005 ruling by the Delhi High Court, I could not find any report on the Delhi High Court order on December 09, 2005 overturning the September ruling of the Delhi High Court. The Hindu's latest report (April 16, 2005) on the appeal in the Supreme Court makes no mention of the overturning of the September ruling on December 09, 2005, except to say it was being challenged in the Supreme Court. Not very good reporting by The Hindu, I must say. I had to dig around for the various rulings to piece together the puzzle.

The Executive and the Legislature are ceding influence to the Judiciary

Shiksha Bachao Andolan has filed a public interest litigation in the Patna High court claiming that Rs. 1,100 Crores of Sarva Shiksha Abhiyan funding that was given to the Govt. of Bihar remains unutilised and many posts of principals and teachers remain vacant.

The Patna High Court (HC) on Wednesday took exception to the deterioration in the school education system, especially middle schools, of Bihar. The high court asked the state government to file an affidavit outlining the present education scenario in Bihar. The high court fixed the next date for hearing on May 2 and directed the Bihar Education Project (BEP) director to be present in the court on that day.

says The Times of India (April 13, 2006)

Citizens shouldn't be looking to the courts in such situations - the Opposition parties must be raising this in the state legislature. But if the executive fails to provide basic governance, let alone good governance, and on top of it the opposition legislators fail to challenge the executive for their omissions and commissions, what're citizens to do? By abdicating their responsibilities, the Executive and the Legislature are digging their own grave and ceding influence to the Judiciary.

The ongoing case of the AICTE vs Deemed Universities (summarised by Badri) is another case in point. The UGC could have quickly stepped in asking the deemed universities to fall in line with the AICTE's norms and ensured that the deemed universities did so. But as Abi pointed out, the UGC and the AICTE don't seem to get along and that has resulted in a lot of confusion for the students who have been the most affected - all because the executive is not doing its job properly. Again the legislature seems to be least bit interested in raising this in Parliament and the courts are the last resort for the citizens.

Will the 93rd Consitution Amendment Act survive the "basic structure" test?

There is sure to be a legal challenge to the Constitution 93rd Amendment Act on the grounds that it violates the "basic structure" of the Constitution.

Sudhir Krishnaswamy, writing in The Telegraph (January 31, 2006) puts forward two plausible arguments that the 93rd Amendment Act violates the "basic structure" of the Constitution:

1. The first argument against the amendment is that it destroys the basic feature of equality. The apex court has reiterated in the recent Mandal commission case (1994) when dealing with reservation in public employment that 'equality' is a basic feature of the Constitution. The Mandal commission ruling is not clear about the precise limits to state action that equality as a basic feature entails. As basic structure review operates at a permissive 'damage or destroy' standard, petitioners will have to show that the reservation amendment eviscerates the concept of equality in the Constitution.

   As the Constitution adopts a concept of equality which permits special provisions for SC/ST and OBCs as valid derogations from a symmetrical equal treatment principle, this is a difficult argument to sustain. Such a low standard of scrutiny in basic structure review may seem incongruous, but considering that this is an exceptional power of judicial review where the court safeguards abstract constitutional values, the court's deference to the legislature's mode of setting out the equality principle is more appropriate. So basic structure review on equality grounds may fail to satisfy the 'damage or destroy' standard.
   

2. The second argument against the reservation amendment is that it fails to respect the division between the state sector and private sector. This argument would have to persuade the court to recognize a new basic feature: namely, the separation of state action from private action. It is clearly open to the court to do so as basic features are an open catalogue which may be expanded or modified through the common law method proceeding on a case-by-case basis. The right to associate freely [Article 19(1)(c)], read with the right to carry on any occupation, trade or business, or to practice any profession [Article 19(1)(g)] suggest that citizens enjoy the freedom to conduct their life as they choose to. This liberty is best illustrated by contrasting it with the constitutional obligations of the state to act within the fetters cast upon it by the fundamental rights of citizens (Article 13). These provisions read together suggest that the state/private distinction is a basic feature of our constitutional design. However, our Constitution does not maintain this distinction throughout. It clearly prohibits the practice of untouchability between private persons (Article 17) and imposes several fundamental duties on citizens, including the duty to abide by the Constitution (Article 51A (a)). The court has on previous occasions, as with sexual harassment, held that individual citizens may be required to respect the constitutional rights of citizens.

   On balance, the court will assess whether the state/private distinction stands with democracy, equality and secularism as an inviolable constitutional principle or whether it is an important but malleable principle. In the last fifty years, the Supreme Court has interpreted the state action doctrine to include, and exclude, a wider range of public and private authorities against whom administrative law standards and rights guarantees are enforced. The most charitable understanding of this body of law would conclude that this area is in flux. In these circumstances, the court could refrain from anointing the state/private distinction as a basic feature of the Constitution.

and concludes that the 93rd Amendment Act will probably survive the "basic structure" test.

Affirmative action politics in India is obsessed with quotas. Political parties vie with each other to expand quotas to newer arenas for an ever-expanding category of beneficiaries. It may be shown that this policy neither advances the interests of its beneficiaries nor that of the nation. But bad policy is not always 'bad' legally. One would therefore not be wrong to conclude that the 104th Constitution Amendment Act 2005 should survive the Supreme Court's basic structure review and be declared constitutional.

We will have to wait to find out the judiciary's interpretation of whether the 93rd constitution amendment violates the "basic structure" of the constitution.

Implications of the 93rd Constitution Amendment Act

The 93rd Constitution Amendment Act, termed by Minister of Human Resource Development, Arjun Singh as only a piece of "enabling legislation", may have opened Pandora's box by amending Article 15 of the constitution to provide for reservations for OBCs in all "educational institutions" including private, whether aided or unaided, excepting minority educational institutions.

What was the driving force and the hurry for the 93rd constitution amendment?

The Supreme Court delivered an unanimous judgement by 7 judges on August 12, 2005 in the case of P.A. Inamdar & Ors. vs. State of Maharashtra & Ors.declaring that the State can't impose its reservation policy on minority and non-minority unaided private colleges, including professional colleges. All political parties without exception were unhappy with the Supreme Court's recent judgement in the P.A. Inamdar case and there was a consensus among all political parties for amending the Constitution to impose the State's reservation policies on the private unaided colleges too.

The Government reacted very quickly. The Minister for Human Resource Development, Arjun Singh, drafted and piloted the 104th Constitution Amendment Bill which was passed in the Lok Sabha on December 21st with 379 votes in favour and one vote against and one abstaining. The Rajya Sabha also passed it on December 22nd with 172 votes in favour and only two against. The BJP had protested that minority education institutions should also come under the purview of this bill, but did not oppose the bill in principle.

The 104th Constitution Amendment Bill became the the Constitution 93rd amendment Act, 2005 when President Kalam signed it on January 20, 2006 after coming very close to withholding his assent to the Bill. President Kalam had raised a number of queries and Prime Minister Manmohan Singh was apparently able to address all queries to the President's satisfaction.

According to the Constitution 93rd amendment Act, 2005,

Amendment of article 15.-In article 15 of the Constitution, after clause (4), the following clause shall be inserted, namely:-
"(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30."

While the Amendment was clearly intended to bring all private institutions, whether aided or unaided, under the purview of the Government's policies on reservation and fee structure, it has also quietly achieved much more than that by widening the scope of the Amendment Act to specifically include the term "admission to educational institutions". Article 15 of the constitution, as it was originally framed in 1950, stated the following and did not include the term "admission to educational institutions".

15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.-

1. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

2. No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to
   (a) access to shops, public restaurants, hotels and places of public entertainment; or
   (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
   
3. Nothing in this article shall prevent the State from making any special provision for women and children.

Article 15 was first amended by the the Constitution (First Amendment) Act, 1951 enacted on June 18, 1951. While this Amendment mentions "educational advancement", it does not use the term "admission to educational institutions" either. According to that amendment,

It is laid down in Article 46 as a directive principle of State policy that the State should promote with special care the educational and economic interests of the weaker sections of the people and protect them from social injustice. In order that any special provision that the State may make for the educational, economic or social advancement of any backward class of citizens may not be challenged on the ground of being discriminatory, it is proposed that article 15(3) should be suitably amplified.

Amendment of article 15.
To article 15 of the Constitution, the following clause shall be added:-
"(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement
of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.".

Note that the term "admission to educational institutions" has been inserted in the 93rd Amendment but "educational institutions" has been left undefined . I'm not sure if the Constitution defines "educational institutions" anywhere. If there is indeed no definition of it in the consitution, the term "educational institutions" could be interpreted by the current or any future government to include all schools from nursery schools upwards and could also include institutions like NIITs, and others offering specialised training. This is the beginning of a slippery slope.

Minister of HRD, Arjun Singh termed this Act as an "enabling legislation" and said all States would be required to draft their own laws to ensure implementation of this Constitution amendment. Now that this "enabling legislation" is in place, the Central Government has chosen to fire the first salvo by proposing reservations in all higher educational institutions coming under the purview of the Centre, including the IITs and the IIMs. Most state governments are likely to follow suit.

The "enabling legislation" is insidious and technically allows the government to enforce reservations not just in higher education institutions but in all educational institutions starting from the nursery upwards.

Given that the government has not been able to so far, and is no position now, to be able to provide quality primary education through state funded schools to all children, there is every likelihood that the government will find it tempting to extend reservations upto 50% (not any higher only because of a Supreme Court ruling that all reservations together can't amount to more than 50%) to all private, unaided primary schools too at some time in the future and abdicate its own responsibility of providing quality primary education for all children.