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Sunday, December 30, 2012

Dr. B R Ambedkar, speech on Friday, 25th November 1949.

This was the final statement made in the Constituent Assembly debates, by Dr. Babasaheb Ambedkar, speaking on the way forward after introducing the new Constitution of India.

The entire proceedings of that day can be read here: http://parliamentofindia.nic.in/ls/debates/vol11p11.htm

Dr. Ambedkar's statement - now mostly known as the "Grammar of Anarchy" speech - can only be described as prescient. The full text is extracted below.

The Honourable Dr. B.R. Ambedkar : Sir, looking back on the work of the Constituent Assembly it will now be two years, eleven months and seventeen days since it first met on the 9th of December 1946. During this period the Constituent Assembly has altogether held eleven sessions. Out of these eleven sessions the first six were spent in passing the Objectives Resolution and the consideration of the Reports of Committees on Fundamental Rights, on Union Constitution, on Union Powers, on Provincial Constitution, on Minorities and on the Scheduled Areas and Scheduled Tribes. The seventh, eighth, ninth, tenth and the eleventh sessions were devoted to the consideration of the Draft Constitution. These eleven sessions of the Constituent Assembly have consumed 165 days. Out of these, the Assembly spent 114 days for the consideration of the Draft Constitution.
    Coming to the Drafting Committee, it was elected by the Constituent Assembly on 29th August 1947. It held its first meeting on 30th August. Since August 30th it sat for 141 days during which it was engaged in the preparation of the Draft Constitution. The Draft Constitution as prepared by the Constitutional Adviser as a text for the Draft Committee to work upon, consisted of 243 articles and 13 Schedules. The first Draft Constitution as presented by the Drafting Committee to the Constituent Assembly contained 315 articles and 8 Schedules. At the end of the consideration stage, the number of articles in the Draft Constitution increased to 386. In its final form, the Draft Constitution contains 395 articles and 8 Schedules. The total number of amendments to the Draft Constitution tabled was approximately 7,635. Of them, the total number of amendments actually moved in the House were 2,473.
    I mention these facts because at one stage it was being said that the Assembly had taken too long a time to finish its work, that it was going on leisurely and wasting public money. It was said to be a case of Nero fiddling while Rome was burning. Is there any justification for this complaint? Let us note the time consumed by Constituent Assemblies in other countries appointed for framing their Constitutions. To take a few illustrations, the American Convention met on May 25th, 1787 and completed its work on September 17, 1787 i.e., within four months. The Constitutional Convention of Canada met on the 10thOctober 1864 and the Constitution was passed into law in March 1867 involving a period of two years and five months. The Australian Constitutional Convention assembled in March 1891 and the Constitution became law on the 9th July 1900, consuming a period of nine years. The South African Convention met in October, 1908 and the Constitution became law on the 20th September 1909 involving one year's labour. It is true that we have taken more time than what the American or South African Conventions did. But we have not taken more time than the Canadian Convention and much less than the Australian Convention. In making comparisons on the basis of time consumed, two things must be remembered. One is that the Constitutions of America, Canada, South Africa and Australia are much smaller than ours. Our Constitution as I said contains 395 articles while the American has just seven articles, the first four of which are divided into sections which total up to 21, the Canadian has 147, Australian 128 and South African 153 sections. The second thing to be remembered is that the makers of the Constitutions of America, Canada, Australia and South Africa did not have to face the problem of amendments. They were passed as moved. On the other hand, this Constituent Assembly had to deal with as many as 2,473 amendments. Having regard to these facts the charge of dilatoriness seems to me quite unfounded and this Assembly may well congratulate itself for having accomplished so formidable a task in so short a time.
    Turning to the quality of the work done by the Drafting Committee, Mr. Naziruddin Ahmed felt it his duty to condemn it outright. In his opinion, the work done by the Drafting Committee is not only not worthy of commendation, but is positively below par. Everybody has a right to have his opinion about the work done by the Drafting Committee and Mr. Naziruddin is welcome to have his own. Mr. Naziruddin Ahmed thinks he is a man of greater talents than any member of the Drafting Committee. The Drafting Committee would have welcomed him in their midst if the Assembly had thought him worthy of being appointed to it. If he had no place in the making of the Constitution it is certainly not the fault of the Drafting Committee.
    Mr. Naziruddin Ahmed has coined a new name for the Drafting Committee evidently to show his contempt for it. He calls it a Drafting committee. Mr. Naziruddin must no doubt be pleased with his hit. But he evidently does not know that there is a difference between drift without mastery and drift with mastery. If the Drafting Committee was drifting, it was never without mastery over the situation. It was not merely angling with the off chance of catching a fish. It was searching in known waters to find the fish it was after. To be in search of something better is not the same as drifting. Although Mr. Naziruddin Ahmed did not mean it as a compliment to the Drafting committee. I take it as a compliment to the Drafting Committee. The Drafting Committee would have been guilty of gross dereliction of duty and of a false sense of dignity if it had not shown the honesty and the courage to withdraw the amendments which it thought faulty and substitute what it thought was better. If it is a mistake, I am glad the Drafting Committee did not fight shy of admitting such mistakes and coming forward to correct them.
    I am glad to find that with the exception of a solitary member, there is a general consensus of appreciation from the members of the Constituent Assembly of the work done by the Drafting Committee. I am sure the Drafting Committee feels happy to find this spontaneous recognition of its labours expressed in such generous terms. As to the compliments that have been showered upon me both by the members of the Assembly as well as by my colleagues of the Drafting Committee I feel so overwhelmed that I cannot find adequate words to express fully my gratitude to them. I came into the Constituent Assembly with no greater aspiration than to safeguard the interests of he Scheduled Castes. I had not the remotest idea that I would be called upon to undertake more responsible functions. I was therefore greatly surprised when the Assembly elected me to the Drafting Committee. I was more than surprised when the Drafting Committee elected me to be its Chairman. There were in the Drafting Committee men bigger, better and more competent than myself such as my friend Sir Alladi Krishnaswami Ayyar. I am grateful to the Constituent Assembly and the Drafting Committee for reposing in me so much trust and confidence and to have chosen me as their instrument and given me this opportunity of serving the country. (Cheers)
    The credit that is given to me does not really belong to me. It belongs partly to Sir B.N. Rau, the Constitutional Adviser to the Constituent Assembly who prepared a rough draft of the Constitution for the consideration of the Drafting Committee. A part of the credit must go to the members of the Drafting Committee who, as I have said, have sat for 141 days and without whose ingenuity of devise new formulae and capacity to tolerate and to accommodate different points of view, the task of framing the Constitution could not have come to so successful a conclusion. Much greater, share of the credit must go to Mr. S.N. Mukherjee, the Chief Draftsman of the Constitution. His ability to put the most intricate proposals in the simplest and clearest legal form can rarely be equalled, nor his capacity for hard work. He has been as acquisition tot he Assembly. Without his help, this Assembly would have taken many more years to finalise the Constitution. I must not omit to mention the members of the staff working under Mr. Mukherjee. For, I know how hard they have worked and how long they have toiled sometimes even beyond midnight. I want to thank them all for their effort and their co-operation.(Cheers)
    The task of the Drafting Committee would have been a very difficult one if this Constituent Assembly has been merely a motley crowd, a tasseleted pavement without cement, a black stone here and a white stone there is which each member or each group was a law unto itself. There would have been nothing but chaos. This possibility of chaos was reduced to nil by the existence of the Congress Party inside the Assembly which brought into its proceedings a sense of order and discipline. It is because of the discipline of the Congress Party that the Drafting Committee was able to pilot the Constitution in the Assembly with the sure knowledge as to the fate of each article and each amendment. The Congress Party is, therefore, entitled to all the credit for the smooth sailing of the Draft Constitution in the Assembly.
    The proceedings of this Constituent Assembly would have been very dull if all members had yielded to the rule of party discipline. Party discipline, in all its rigidity, would have converted this Assembly into a gathering of yes' men. Fortunately, there were rebels. They were Mr. Kamath, Dr. P.S. Deshmukh, Mr. Sidhva, Prof. K.T. Shah and Pandit Hirday Nath Kunzru. The points they raised were mostly ideological. That I was not prepared to accept their suggestions, does not diminish the value of their suggestions nor lessen the service they have rendered to the Assembly in enlivening its proceedings. I am grateful to them. But for them, I would not have had the opportunity which I got for expounding the principles underlying the Constitution which was more important than the mere mechanical work of passing the Constitution.
    Finally, I must thank you Mr. President for the way in which you have conducted the proceedings of this Assembly. The courtesy and the consideration which you have shown to the Members of the Assembly can never be forgotten by those who have taken part in the proceedings of this Assembly. There were occasions when the amendments of the Drafting Committee were sought to be barred on grounds purely technical in their nature. Those were very anxious moments for me. I am, therefore, specially grateful to you for not permitting legalism to defeat the work of Constitution-making.
    As much defence as could be offered to the constitution has been offered by my friends Sir Alladi Krishnaswami Ayyar and Mr.. T.T. Krishnamachari. I shall not therefore enter into the merits of the Constitution. Because I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However had a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics. Who can say how the people of India and their purposes or will they prefer revolutionary methods of achieving them? If they adopt the revolutionary methods, however good the Constitution may be, it requires no prophet to say that it will fail. It is, therefore, futile to pass any judgement upon the Constitution without reference to the part which the people and their parties are likely to play.
    The condemnation of the Constitution largely comes from two quarters, the Communist Party and the Socialist Party. Why do they condemn the Constitution? Is it because it is really a bad Constitution? I venture to say no'. The Communist Party want a Constitution based upon the principle of the Dictatorship of the Proletariat. They condemn the Constitution because it is based upon parliamentary democracy. The Socialists want two things. The first thing they want is that if they come in power, the Constitution must give them the freedom to nationalize or socialize all private property without payment of compensation. The second thing that the Socialists want is that the Fundamental Rights mentioned in the Constitution must be absolute and without any limitations so that if their Party fails to come into power, they would have the unfettered freedom not merely to criticize, but also to overthrow the State.
    These are the main grounds on which the Constitution is being condemned. I do not say that the principle of parliamentary democracy is the only ideal form of political democracy. I do not say that the principle of no acquisition of private property without compensation is so sacrosanct that there can be no departure from it. I do not say that Fundamental Rights can never be absolute and the limitations set upon them can never be lifted. What I do say is that the principles embodied in the Constitution are the views of the present generation or if you think this to be an over-statement, I say they are the views of the members of the Constituent Assembly. Why blame the Drafting Committee for embodying them in the Constitution? I say why blame even the Members of the Constituent Assembly? Jefferson, the great American statesman who played so great a part in the making of the American constitution, has expressed some very weighty views which makers of Constitution, can never afford to ignore. In one place he has said:-
    "We may consider each generation as a distinct nation, with a right, by the will of the majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country."
    In another place, he has said :
    "The idea that institutions established for the use of the national cannot be touched or modified, even to make them answer their end, because of rights gratuitously supposed in those employed to manage them in the trust for the public, may perhaps be a salutary provision against the abuses of a monarch, but is most absurd against the nation itself. Yet our lawyers and priests generally inculcate this doctrine, and suppose that preceding generations held the earth more freely than we do; had a right to impose laws on us, unalterable by ourselves, and that we, in the like manner, can make laws and impose burdens on future generations, which they will have no right to alter; in fine, that the earth belongs to the dead and not the living;"
    I admit that what Jefferson has said is not merely true, but is absolutely true. There can be no question about it. Had the Constituent Assembly departed from this principle laid down by Jefferson it would certainly be liable to blame, even to condemnation. But I ask, has it? Quite the contrary. One has only to examine the provision relating to the amendment of the Constitution. The Assembly has not only refrained from putting a seal of finality and infallibility upon this Constitution as in Canada or by making the amendment of the Constitution subject tot he fulfilment of extraordinary terms and conditions as in America or Australia, but has provided a most facile procedure for amending the Constitution. I challenge any of the critics of the Constitution to prove that any Constituent Assembly anywhere in the world has, in the circumstances in which this country finds itself, provided such a facile procedure for the amendment of the Constitution. If those who are dissatisfied with the Constitution have only to obtain a 2/3 majority and if they cannot obtain even a two-thirds majority in the parliament elected on adult franchise in their favour, their dissatisfaction with the Constitution cannot be deemed to be shared by the general public.
    There is only one point of constitutional import to which I propose to make a reference. A serious complaint is made on the ground that there is too much of centralization and that the States have been reduced to Municipalities. It is clear that this view is not only an exaggeration, but is also founded on a misunderstanding of what exactly the Constitution contrives to do. As to the relation between the Centre and the States, it is necessary to bear in mind the fundamental principle on which it rests. The basic principle of Federalism is that the Legislative and Executive authority is partitioned between the Centre and the States not by any law to be made by the Centre but by the Constitution itself. This is what Constitution does. The States under our Constitution are in no way dependent upon the Centre for their legislative or executive authority. The Centre and the States are co-equal in this matter. It is difficult to see how such a Constitution can be called centralism. It may be that the Constitution assigns to the Centre too large a field for the operation of its legislative and executive authority than is to be found in any other federal Constitution. It may be that the residuary powers are given to the Centre and not to the States. But these features do not form the essence of federalism. The chief mark of federalism as I said lies in the partition of the legislative and executive authority between the Centre and the Units by the Constitution. This is the principle embodied in our constitution. There can be no mistake about it. It is, therefore, wrong to say that the States have been placed under the Centre. Centre cannot by its own will alter the boundary of that partition. Nor can the Judiciary. For as has been well said:
    "Courts may modify, they cannot replace. They can revise earlier interpretations as new arguments, new points of view are presented, they can shift the dividing line in marginal cases, but there are barriers they cannot pass, definite assignments of power they cannot reallocate. They can give a broadening construction of existing powers, but they cannot assign to one authority powers explicitly granted to another."
The first charge of centralization defeating federalism must therefore fall.
    The second charge is that the Centre has been given the power to override the States. This charge must be admitted. But before condemning the Constitution for containing such overriding powers, certain considerations must be borne in mind. The first is that these overriding powers do not form the normal feature of the constitution. Their use and operation are expressly confined to emergencies only. The second consideration is : Could we avoid giving overriding powers to the Centre when an emergency has arisen? Those who do not admit the justification for such overriding powers to the Centre even in an emergency, do not seem to have a clear idea of the problem which lies at the root of the matter. The problem is so clearly set out by a writer in that well-known magazine "The Round Table" in its issue of December 1935 that I offer no apology for quoting the following extract from it. Says the writer :
    "Political systems are a complex of rights and duties resting ultimately on the question, to whom, or to what authority, does the citizen owe allegiance. In normal affairs the question is not present, for the law works smoothly, and a man, goes about his business obeying one authority in this set of matters and another authority in that. But in a moment of crisis, a conflict of claims may arise, and it is then apparent that ultimate allegiance cannot be divided. The issue of allegiance cannot be determined in the last resort by a juristic interpretation of statutes. The law must conform to the facts or so much the worse for the law. When all formalism is stripped away, the bare question is, what authority commands the residual loyalty of the citizen. Is it the Centre or the Constituent State ?"
    The solution of this problem depends upon one's answer to this question which is the crux of the problem. There can be no doubt that in the opinion of the vast majority of the people, the residual loyalty of the citizen in an emergency must be to the Centre and not to the Constituent States. For it is only the Centre which can work for a common end and for the general interests of the country as a whole. Herein lies the justification for giving to all Centre certain overriding powers to be used in an emergency. And after all what is the obligation imposed upon the Constituent States by these emergency powers? No more than this – that in an emergency, they should take into consideration alongside their own local interests, the opinions and interests of the nation as a whole. Only those who have not understood the problem, can complain against it.
    Here I could have ended. But my mind is so full of the future of our country that I feel I ought to take this occasion to give expression to some of my reflections thereon. On 26th January 1950, India will be an independent country (Cheers). What would happen to her independence? Will she maintain her independence or will she lose it again? This is the first thought that comes to my mind. It is not that India was never an independent country. The point is that she once lost the independence she had. Will she lost it a second time? It is this thought which makes me most anxious for the future. What perturbs me greatly is the fact that not only India has once before lost her independence, but she lost it by the infidelity and treachery of some of her own people. In the invasion of Sind by Mahommed-Bin-Kasim, the military commanders of King Dahar accepted bribes from the agents of Mahommed-Bin-Kasim and refused to fight on the side of their King. It was Jaichand who invited Mahommed Gohri to invade India and fight against Prithvi Raj and promised him the help of himself and the Solanki Kings. When Shivaji was fighting for the liberation of Hindus, the other Maratha noblemen and the Rajput Kings were fighting the battle on the side of Moghul Emperors. When the British were trying to destroy the Sikh Rulers, Gulab Singh, their principal commander sat silent and did not help to save the Sikh Kingdom. In 1857, when a large part of India had declared a war of independence against the British, the Sikhs stood and watched the event as silent spectators.
    Will history repeat itself? It is this thought which fills me with anxiety. This anxiety is deepened by the realization of the fact that in addition to our old enemies in the form of castes and creeds we are going to have many political parties with diverse and opposing political creeds. Will Indian place the country above their creed or will they place creed above country? I do not know. But this much is certain that if the parties place creed above country, our independence will be put in jeopardy a second time and probably be lost for ever. This eventuality we must all resolutely guard against. We must be determined to defend our independence with the last drop of our blood.(Cheers)
    On the 26th of January 1950, India would be a democratic country in the sense that India from that day would have a government of the people, by the people and for the people. The same thought comes to my mind. What would happen to her democratic Constitution? Will she be able to maintain it or will she lost it again. This is the second thought that comes to my mind and makes me as anxious as the first.
    It is not that India did not know what is Democracy. There was a time when India was studded with republics, and even where there were monarchies, they were either elected or limited. They were never absolute. It is not that India did not know Parliaments or Parliamentary Procedure. A study of the Buddhist Bhikshu Sanghas discloses that not only there were Parliaments-for the Sanghas were nothing but Parliaments – but the Sanghas knew and observed all the rules of Parliamentary Procedure known to modern times. They had rules regarding seating arrangements, rules regarding Motions, Resolutions, Quorum, Whip, Counting of Votes, Voting by Ballot, Censure Motion, Regularization, Res Judicata, etc. Although these rules of Parliamentary Procedure were applied by the Buddha to the meetings of the Sanghas, he must have borrowed them from the rules of the Political Assemblies functioning in the country in his time.
    This democratic system India lost. Will she lost it a second time? I do not know. But it is quite possible in a country like India – where democracy from its long disuse must be regarded as something quite new – there is danger of democracy giving place to dictatorship. It is quite possible for this new born democracy to retain its form but give place to dictatorship in fact. If there is a landslide, the danger of the second possibility becoming actuality is much greater.
    If we wish to maintain democracy not merely in form, but also in fact, what must we do? The first thing in my judgement we must do is to hold fast to constitutional methods of achieving our social and economic objectives. It means we must abandon the bloody methods of revolution. It means that we must abandon the method of civil disobedience, non-cooperation and satyagraha. When there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods. But where constitutional methods are open, there can be no justification for these unconstitutional methods. These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us.
    The second thing we must do is to observe the caution which John Stuart Mill has given to all who are interested in the maintenance of democracy, namely, not "to lay their liberties at the feet of even a great man, or to trust him with power which enable him to subvert their institutions". There is nothing wrong in being grateful to great men who have rendered life-long services to the country. But there are limits to gratefulness. As has been well said by the Irish Patriot Daniel O'Connel, no man can be grateful at the cost of his honour, no woman can be grateful at the cost of her chastity and no nation can be grateful at the cost of its liberty. This caution is far more necessary in the case of India than in the case of any other country. For in India, Bhakti or what may be called the path of devotion or hero-worship, plays a part in its politics unequalled in magnitude by the part it plays in the politics of any other country in the world. Bhakti in religion may be a road to the salvation of the soul. But in politics, Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship.
    The third thing we must do is not to be content with mere political democracy. We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it social democracy. What does social democracy mean? It means a way of life which recognizes liberty, equality and fraternity as the principles of life. These principles of liberty, equality and fraternity as the principles of life. These principles of liberty, equality and fraternity are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them. We must begin by acknowledging the fact that there is complete absence of two things in Indian Society. One of these is equality. On the social plane, we have in India a society based on the principle of graded inequality which we have a society in which there are some who have immense wealth as against many who live in abject poverty. On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which is Assembly has to laboriously built up.
    The second thing we are wanting in is recognition of the principle of fraternity. what does fraternity mean? Fraternity means a sense of common brotherhood of all Indians-if Indians being one people. It is the principle which gives unity and solidarity to social life. It is a difficult thing to achieve. How difficult it is, can be realized from the story related by James Bryce in his volume on American Commonwealth about the United States of America.
    The story is- I propose to recount it in the words of Bryce himself- that-
    "Some years ago the American Protestant Episcopal Church was occupied at its triennial Convention in revising its liturgy. It was thought desirable to introduce among the short sentence prayers a prayer for the whole people, and an eminent  New England divine proposed the words `O Lord, bless our nation'. Accepted one afternoon, on the spur of the moment, the sentence was brought up next day for reconsideration, when so many objections were raised by the laity to the word nation' as importing too definite a recognition of national unity, that it was dropped, and instead there were adopted the words `O Lord, bless these United States."
    There was so little solidarity in the U.S.A. at the time when this incident occurred that the people of America did not think that they were a nation. If the people of the United States could not feel that they were a nation, how difficult it is for Indians to think that they are a nation. I remember the days when politically-minded Indians, resented the expression "the people of India". They preferred the expression "the Indian nation." I am of opinion that in believing that we are a nation, we are cherishing a great delusion. How can people divided into several thousands of castes be a nation? The sooner we realize that we are not as yet a nation in the social and psychological sense of the world, the better for us. For then only we shall realize the necessity of becoming a nation and seriously think of ways and means of realizing the goal. The realization of this goal is going to be very difficult – far more difficult than it has been in the United States. The United States has no caste problem. In India there are castes. The castes are anti-national. In the first place because they bring about separation in social life. They are anti-national also because they generate jealousy and antipathy between caste and caste. But we must overcome all these difficulties if we wish to become a nation in reality. For fraternity can be a fact only when there is a nation. Without fraternity equality and liberty will be no deeper than coats of paint.
    These are my reflections about the tasks that lie ahead of us. They may not be very pleasant to some. But there can be no gainsaying that political power in this country has too long been the monopoly of a few and the many are only beasts of burden, but also beasts of prey. This monopoly has not merely deprived them of their chance of betterment, it has sapped them of what may be called the significance of life. These down-trodden classes are tired of being governed. They are impatient to govern themselves. This urge for self-realization in the down-trodden classes must no be allowed to devolve into a class struggle or class war. It would lead to a division of the House. That would indeed be a day of disaster. For, as has been well said by Abraham Lincoln, a House divided against itself cannot stand very long. Therefore the sooner room is made for the realization of their aspiration, the better for the few, the better for the country, the better for the maintenance for its independence and the better for the continuance of its democratic structure. This can only be done by the establishment of equality and fraternity in all spheres of life. That is why I have laid so much stresses on them.
    I do not wish to weary the House any further. Independence is no doubt a matter of joy. But let us not forget that this independence has thrown on us great responsibilities. By independence, we have lost the excuse of blaming the British for anything going wrong. If hereafter things go wrong, we will have nobody to blame except ourselves. There is great danger of things going wrong. Times are fast changing. People including our own are being moved by new ideologies. They are getting tired of Government by the people. They are prepared to have Governments for the people and are indifferent whether it is Government of the people and by the people. If we wish to preserve the Constitution in which we have sought to enshrine the principle of Government of the people, for the people and by the people, let us resolve not to be tardy in the recognition of the evils that lie across our path and which induce people to prefer Government for the people to Government by the people, nor to be weak in our initiative to remove them. That is the only way to serve the country. I know of no better.

Monday, August 06, 2012

Mooch Nahin Toh...

This is actually a really old one. Done when I was in Class XII or something - about the time they reported Veerappan finally being cornered & killed. Just found it again!

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MINE’S BIGGER THAN YOURS!

In the sandalwood jungles of Karnataka, notorious dacoit Veerappan was reclining masterfully on a hammock with a chilled nariyal-pani, watching Sholay on the Japanese-make DSL large screen satellite television set he had stolen from that film star’s house. He was making a concerted effort to get engrossed in the film (now in a special digitally remastered format), but was somewhat hampered in this by the squat, oily man who crouched next to him. Not that Veerappan really had anything against squat, oily men, but you really can’t concentrate on any movie – even your favourite – when a squat oily man is making tally marks in a notepad at your elbow and periodically running a comb through your resplendent moustache. With a snort that made the comb tremble precariously, Veerappan reached for the remote control and rewound the film for the twenty-seventh time. He was just starting to focus on Gabbar Singh’s inspired dialogues when the comb snagged rather painfully and jerked him back to reality – quite literally. Anyone who has tried to comb their moustache while reclining masterfully in a hammock will know what I mean.
          A short, strangled noise – one would have called it a yelp in a less masterful person – escaped the bandit’s lips as he sat up and complained to his squat, oily lieutenant – “Tell me, Lallan, how are you going to get an accurate count of my moustache hair if you pull half of them out while counting?” Lallan whined a response, “Not my fault, Sir, it’s just the hammock that complicates things – yes I know I started in the morning when you were on a solid sandalwood bench, but you can see how it’s taking time… Aah, what’s the point of counting anyway, that scoundrel will just fudge his figures after he’s seen my final count! Do you know, Sir, he had the nerve to go around telling the villagers he has a longer moustache than you…”
          At this point Lallan had to cut his rant short – having to dodge a gourd full of chilled nariyal-pani has that effect on most people. Veerappan had risen to his feet, a dangerous glint in his eye. The movie ran on, neglected now. “You never told me this,” he muttered, and neglecting Lallan’s nervous muttering about not wanting to disturb his esteemed leader’s repose, continued – “Such audacity! Fine! We will have a fair count – simultaneously and face to face. Go bring him here…” Suddenly the rage left Veerappan, to be replaced by a curious glee. Lallan had seen this kind of good humour in his master earlier – it reminded him of childhood tales of the hyena, which laughs as it rips out your liver… “…And you never know, if that rascal does turn out to have a bigger moustache, then I have just the prize to give him…”
          B. Subramaniam, the “scoundrel” and “rascal” of the above exchange, was a simple village youth who had stumbled upon some plant growth hormones in a can. The stuff looked oily, so he used it to oil his moustache – and suddenly “Bala” was famous for the most luxuriant facial appendage in all the Deccan forests. He was just reflecting upon – well one could call it serendipity, but then Bala didn’t know that this was the correct term - when Veerappan’s summons reached him. It came in the form of a blanket thrown over the head and a couple of sharp punches to the ribs. By the time he had regained his breath he had been carried, inside the forest, to Veerappan’s lair, where he was confronted by the bandit lord himself.
A large smile glistening under his resplendent foliage, Veerappan told young Bala to be seated and explained that it was time to settle once and for all who had the longest moustache. Bala was scared at first, but eventually relaxed and began to enjoy the special show of Sholay the bandit lord had put on for him - it’s hard not to relax when you are being plied with choice liquors and fresh fruits by young damsels dressed like sylvan nymphets. That squat oily guy combing through his moustache was a bit of a dampener, but all in all it wasn’t so bad…
Many, many bottles of liquor and three reruns later, in the early hours of morning, Lallan had to reluctantly admit that Bala beat Veerappan, 67,890 to 66,945. With a broad smile upon his face, Veerappan told Bala he had a special prize for him. The dazzled recipient, who was seeing triple by now (and that is a lot of dazzling white teeth to see), gladly allowed himself to be led away, his mind full of triplicate visions of similar luxury, liquor and nymphets mingling with Gabbar’s face grinning as it asked him “Ab tera kya hoga, kaliya?”

         The next day newspaper headlines read
“MANHUNT SUCCESSFUL: VEERAPPAN CAUGHT AT LAST!”
Conspicuous moustache gave away bandit despite a clever disguise…

Saturday, August 04, 2012

Wrong To Education, Part 4: The ASSES!

(The introduction to this series analysing RTE can be found here:




(Part 3, which is longer than the average, but divided into logical & legal analysis: http://kianayema.blogspot.in/2012/08/wrong-to-education-part-3-or-art-of.html)
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This isn't RTE. It's utterly anti-poor.
a) Let's start with a clarification: I'm not talking about the "neighbourhood schools" in the RTE, i.e. Sec.12(a). If those are set up, managed & run properly, they will indeed bring education to many who need it. There is some concern that, in the medium to long term - if one reads the Act as the 2012 judgment does - these schools will come up at the expense of existing government efforts, but if that must be the price for a uniform & reliable system, it may even be worth it. In as much as Sec. 18-19 may be applied as between government schools, we should see a net rise in allocative efficiency, however counter-intuitive it may initially appear.


b) With respect to the quotas under Sec. 12(b) & (c), in aided & unaided schools, my considered opinion is that it is a bold experiment, but it *could* be a good step. IF the quotas reliably & consistently provide access to a quality of schooling hitherto unavailable to the poorest children on account of their economic weakness, it will still be a step forward for education for the poor.



(i) The media certainly thinks so. I remember Barkha Dutt saying something to the effect that we had always argued that education-sector reservations should be on an economic basis, and now we finally have an Act that follows this. (I don't want to single out Barkha - I specifically remember her, but she was not unique here. Almost every news outlet took this line.) And, as I pointed out in #3, the Supreme Court thinks so too; whatever its flaws - & those are legion! - the 2012 judgment does proclaim this: <emphasis added>

"Earmarking of seats for children belonging to a specified category who face financial barrier in the matter of accessing education satisfies the test in Art. 14." (At Para 10)


(ii) The test in question is the test of Reasonable Classification based on Intelligible Differentia. Art. 14 guarantees equal treatment by the State (equality before the law & equal protection of the law), which has been interpreted to mean that equals must not be treated unequally, but those who are not equal may receive differential treatment. The test is whether the distinction (classification) being made is a reasonable one, made
[A] on the basis of objective ("intelligible") differentiating factors between the groups
[B] having a clear relation ("nexus") to the objective of the Act, for which any such classification is sought to be made.

c) In other words, you can treat people differently, if the basis for such differential treatment is both objective & rationally related to the purpose of making such a differentiation in the first place. With respect to RTE, the Supreme Court itself has provided this basis - financial inability to access education. As long as this judgment stands, this criterion can neither be gainsaid nor ignored.

d) RTE, in effect, ignores the "financial inability" criterion for providing quotas.
Which means that it is not only is not a step towards educating the poor, but now explicitly in violation of the Supreme Court's judgment; ironically, the very judgment that  went to illogical lengths to save quotas under the Act may have opened (another) door to the entire quota scheme being struck down!

Why do I say this? The devil, as one blogger put it, is in the details. 

(i) Note these definitions from RTE: <Emphasis added>
Sec. 2(d): Child belonging to disadvantaged groups: means a child belonging to the  Scheduled Caste, Scheduled Tribe, the socially and educationally backward class OR such other group having disadvantage owing to cultural, economical, social, geographical, linguistic, gender OR such other factor, as may be specified by the appropriate government, by notification.
Sec. 2(e): Child belonging to weaker section: means a child belonging to such parent or guardian whose annual income is lower than the minimum limit specified by the appropriate government by notification.

(ii)  Now note the crucial quota-creating provisions, in Sec.12: <Emphasis added>
Sec. 12(b): <provision of free education by aided schools for> "such proportion of children admitted therein as its annual recurring aid or grants... bears to to its annual recurring expenses..." <subject to a minimum of at least 25%>
Sec. 12(c): <quota - at least 25%, at the stage of admissions to Class I - in unaided & specified schools for> "children belonging to weaker section AND disadvantaged group in the neighbourhood..." 


(iii) What does this mean?
[A] Aided schools - Sec. 2(n)(ii) read with Sec. 12(b) - have to provide free education to (assume the minimum level) 25% of their total strength. Who are these beneficiaries? The poorest, the ones who face - as the court said - a "financial barrier to access to education", right?
Wrong. Actually, we have no idea. The Act simply does not say. All it lays down is the percentage / proportion rule. It gives NO basis for selecting these children. Since a basis is given in the following sub-section 12(c), I believe this is just an example of shoddy drafting. Note that, if this is NOT followed, the action can immediately be challenged for violating Art. 14, because the doctrine of Reasonable Classification is violated. 
Yet, even if we read in the same criteria as 12(c), it will face the same problem.


[B] Unaided & Specified schools - Sec. 2(n)(iii),(iv) read with Sec. 12(c) - have to provide free education to 25% of their intake at Class I (& continue to provide it free to such admitted students until completion/age 14). These beneficiaries are to be children belonging to the weaker section AND the disadvantaged section.
In other words, economic weakness - a "financial barrier to access to education" - is only one factor, and at least one other factor, which is caste by default, but completely at the discretion of the local/state government, must be included as well. The SC judgment, however, recognised only the former category, so unless all of the latter are linked to a financial barrier to access, they can  be struck down as violating Reasonable Classification norms. Indeed, they ought to be - it is not immediately clear why, if the point is to overcome financial barriers, any criterion other than economic weakness is necessary!

[C] The Act, however, MANDATES that they cannot be just the former. Seats must be provided to children whose parents have incomes below the minimum limit specified by the appropriate government, AND either (SC/ST) or (SEBC) or (any other factor, as may be specified by the appropriate government). Most importantly, there is no "creamy layer" provision - that is, there is nothing to say that any of those falling into the "disadvantaged section" will lose this benefit if their parents' annual income is above the minimum limit specified. Remember, if the income is above the minimum limit, they presumably face no financial barrier to access to education. If it is below the limit, they are eligible in any case!
(The Chennai High Court recently read this into the Act - Priyanka Rajkumar vs. Rajaji Vidyashram - but, as a High Court ruling, this has no impact outside Tamil Nadu.) 

Note that, since no relative weightage within the quota is provided, it is possible to provide precisely one seat for "children from weaker sections", all the rest on the basis of caste or any other factor, and still be in compliance with the Act!

e) This is exactly what has been done in practice!

I have not been able to access the actual RTE guidelines on allotment of quotas as notified by any state government in India, so this section depends entirely on analysis of such rules & guidelines made on blogs like Reality Check India and Serious Fun.
( http://serious--fun.blogspot.in/2012/04/right-to-education-act-devil-is-in.html )

To take up just the example of the KV guidelines, just two seats are shared between economically weaker sections, handicapped, or such other groups as may be specified.  This is 2 seats out of 10 reserved seats, in a class of 40: an effective quota of 5%. From what I have read in these blogs - and it's what I'd predict, so I have little reason to doubt it, but I won't report it as fact till I can read the notifications myself - most State guidelines are scarcely any better. Even Kerala, with the most progressive proposal so far, wants to allot 10% to the economically weaker & 15% to the disadvantaged section.

In other words, the child of an SC/ST/SEBC/any other group specified can have the benefit of such quota NO MATTER WHAT their parents' income. In the Rajaji Vidyashram case in Tamil Nadu, the parents' annual income was reported at 30 lakh!

f) To complete the exclusion: The "random selection" guideline
This is, literally, the final nail in the coffin. So far, we've seen that - even if it is solely as a fig leaf (to hide naked caste-related/vote bank politics) - some minimal proportion of seats must be allotted on an economic basis, right?
Schools reported a different - albeit entirely foreseeable - problem: they were receiving applications for the 25% free seats far outnumbering the number of seats, so how were they to select between such applicants? To deny any would be to risk the wrath of the authorities, for how does one reject an applicant to "free & compulsory" education?

In their wisdom, the authorities issued this guideline: seats will be allotted between eligible applicants by a process of random selection. Each school may devise a process for such allotment.

In other words, we're down to lotteries. Now, all through this post, I've been ignoring issues of corruption, fake documents, misreporting of incomes etc. - on the grounds that those are realities that any scheme in any Act must contend with, so why single out RTE for failing to address them? Now, however, we've gone a step further - RTE has become only a right to a chance at access to education. In this respect, how does one ignore the chance of a rigged lottery?

Don't answer, because the question is academic. Remember, the idea was that the criterion for selection was economic weakness. Just look how far we've come from that standard. The criterion is now a random-chance modulated possibility in which economic weakness is one factor. In other words, following precisely the Act & its guidelines, those who face - as determined by the appropriate government - a financial barrier to access to education, may never get the benefit of the quotas under Sec. 12(c).

In other words, RTE's quota system does not specifically target or benefit the poor.

g) Let's finish with a Stakeholder Analysis: How does RTE look to each actor?
<The Counterproductive Part, #4>
(i) Economically weaker section: their children - in whose name RTE is trumpeted - may never see the inside of a quality school. Gods willing, neighbourhood schools will reach them some day.
(ii) Disadvantaged section: given a certain amount of political leverage, their children may corner the benefits of the Sec. 12(c) quotas, or free seats under Sec. 12(b). For groups lacking such leverage, they may see no more benefit than the EWS.
(iii) Govt. run schools: there will be a spurt in constructing such schools, perhaps even in enrollment, but - as has always been the question - where will they find qualified teachers? Note that, if they lack these, it is precisely the poorest children (who will wind up in such schools by default) that will suffer.
(iv) Aided schools: must pray that the amount of expenditure they incur on free students will not exceed the amount they receive in aid or grant from the government. In the long run, we may see such schools choosing to become entirely independent of government aid, especially if they are minority educational institutions.
(v) Unaided schools: These schools will be squeezed. They must meet norms, or be derecognised, so they will incur expenses. They must provide seats to the children of politically favoured groups. They will be reimbursed only the cost-per-head the government incurs on such students, which is clearly less than their expenses on each such student. (One assumes that providing a quality of education higher than the neighbourhood school needs more expense than the neighbourhood schools incur.) At the same time, given regulations on fees, they cannot raise them enough on paid students to cross-subsidise the free seats.
Of course, they still have options. But all of these involve effectively minimising expenses on free seat students, which creates an atmosphere of exclusion within the school & defeats the purpose of the Act. For instance, they may put all free seats in a separate division, and treat that division in utterly stepmotherly fashion. They cannot expel or hold back those students in any case, so why spend money teaching or testing them? A more sophisticated system would be to move these students to another division after class I - perhaps on the premise of remedial teaching - and fill up those vacancies with paying students in Class II. The RTE Act may thus create two levels of entry: Class I for free students, Class II for those willing to pay - and this is only one of many forms of distortion it can induce!
They can also choose to utterly ignore RTE. It will cost Rs. 38 lakh a year. (Fine of Rs. 1 lakh + 10,000 per day). I know schools that could absorb this as a "licensing expense" & keep running.
(vi) Minority schools: will continue unaffected. Except that the pool of potential students to these schools will expand, and - with no direct control on their management etc. - they can safely raise fees in light of this higher demand. Especially if even other unaided schools raise fees, if only to pay off that Rs. 38 lakh non-compliance burden. Of course, this means that quality education will be out of the reach of even more students!
(vii) Alternate schools: the many emerging endeavours, NGO schools, etc. will all fail to receive recognition for lack of infrastructure, and have to pay fines & shut down. As they, more than any other type of school, actually provide to the poorest children, it is precisely those children that will suffer.
(viii) Teachers: are banned from earning any alternate income by the Act. They will either successfully agitate for higher incomes under the Act, which will squeeze schools (& consequently students) even further, or they will quit the profession. Prospective teachers will prefer to become tutors than join a school, exacerbating the shortage in skilled teaching staff. First neighbourhood schools, but then even aided or unaided schools will suffer, unless they can offer a salary high enough to attract these prospective teachers away from other options. Where they get this money is anyone's guess, but if it's the students, then again, access to quality teaching will be out of the reach of many.
(ix) Contractors, Officials in charge of licensing / recognition, enforcement etc.: The Act is a godsend to such players, to engage in unprecedented levels of rent-seeking or extortionist behaviour. They can say to schools - do as we say, or we won't pay you. They can also, in effect, refuse to transfer even the payments due, and say to those who would complain - if you speak up, we'll derecognise & fine you.
(x) Government (& Political parties): Will apparently announce the Act as a step towards promoting universal education. Will also no doubt play all kinds of casteist or vote-bank politics to corner the benefits of reservations under the Act for their chosen group. In this, they will be helped by a media that seems to read only the press packs, not the legislations or judgments in question.

So let me ask, one final time: HOW is this a step forwards, towards educating the poor?

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Having undertaken this assessment, I've come to the conclusion that the so-called Right to Education Act is the antithesis of its name. From the point of view of every stakeholder actually looking to promote education, it's heavily counterproductive. So much so, I have a new label for it: The Anti-School, Student & Education Scheme - ASSES.

Which is the kindest term I can use for those who designed it, and also for those who promote it.

Friday, August 03, 2012

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)