Abdicating Legislation to Judiciary?

I was recently reading the book – “The Vision of the Anointed” by Thomas Sowell. While discussing the issue of “Judicial Activism”, the author briefly makes a point about how, in the US, the “anointed” deliberately blur the concept of separation of powers and leave some parts of legislation unclear so that they could use help from their “co-anointed” in the judiciary to get laws the way they want it structured. In other words, deliberate abdication of the responsibility of legislation.

In India too, one can sense a similar strategy played by #IOI. While there may be numerous examples, I will focus on a couple of them related to #Core1 which shows a deliberate abdication from legislation in order to ensure requisite laws framed in the desired way through the courts.

The reasons for such an approach could be multiple

  • Insufficient strength in legislature to pass a (perhaps) controversial piece of legislation.
  • Fear of the move turning out to be electorally unpopular if recorded in black & white.
  • Desire for a contrary interpretation from the courts and legal difficulties in encoding the same in law.

Clause 3 of the Draft Article 21A

In another article, I had detailed how Article 21A of the Constitution came into being. One of the important developments during the drafting of the law was the debate on inclusion of a clause (number 3) which specified that private unaided institutions would not be required to participate in any law in providing free and compulsory education.

“Clause (3) The State shall not make any law, for free and compulsory education under Clause(2), in relation to the educational institutions not maintained by the State or not receiving aid out of State funds”

The bill was sent to the Standing Committee of Rajya Sabha where this particular clause was debated extensively. Finally, the Committee took a strange decision. It said that since the Supreme Court had already commented on this issue (in Unnikrishnan) there is no need to legislate this piece at all!!

“As regards the interpretation as to whether the private institutions should provide free education or not, the Committee is aware of the Supreme Court judgment given in the Unni Krishnan case. This judgment provides the rule for application and interpretation. In view of the judgment, it is not necessary to make a clause in the Constitution. It would be appropriate to leave the interpretation to the courts instead of making a specific provision in black and white.

Here was a new law being made to introduce free education to kids in India, and a legislation about whether or not the private unaided schools of this country would be made to participate in this endeavour was left “to the interpretation of the courts”. In other words, the legislature asked the Courts to make the law on their behalf.

If the logic of an existing judgement is used, then in the very same Unnikrishnan judgement, the honorable court had also declared Education as a fundamental right and therefore Article 21A itself would not have been needed!!!

This was a clear case of legislature abdicating its responsibility of legislating in favour of the judiciary.

The law, without Clause3, was passed in early 2002 and a few months later, the Supreme Court pronounced the TMA Pai judgement. As detailed in a separate article, the SC interpreted various existing legislation, including 21A and other Constitutional provisions, and declared that private unaided institutions can be asked to reserve seats in order to implement laws related to free education. However, TMA Pai went one step ahead and declared that such a responsibility can also be placed upon minority educational institutions.

“At the same time, the admissions to aided institutions, whether awarded to minority or non-minority students, cannot be at the absolute sweet will and pleasure of the management of minority educational institutions ….. It would be open to the state authorities to insist on allocating a certain percentage of seats to those belonging to weaker sections of society, from amongst the non-minority seats”

So TMA Pai did give the “interpretation” which the Rajya Sabha Committee wanted. However this interpretation did not go fully well with #IOI. The part about including even minority educational institutions was not as per plan, it would seem. Therefore, a somersault was made on this issue of legislating about the role of private unaided institutions and in 2005, the 93rd amendment to the Constitution added Article 15(5)!!

Article 15(5) introduced specific provisions in the Constitution to ensure all kinds of schools *except minority educational institutions* were to give up seats to implement free and compulsory education programs.

It is quite clear how the legislature took exact opposite stances on its role in legislating depending upon the interpretations made by Courts.

The RTE Act

A second such instance can be seen in 2009 with the drafting of the RTE Act. The Right to Education Act was a comprehensive law comprising legislation on every single aspect of running educational institutions. It includes sections on admissions, infrastructure, teachers, management of schools, examinations and so on. It is obvious that these topics affect every single (type of) school in the country.

In spite of this, the Act makes no reference with regard to its applicability to minority institutions. In TMA Pai the Supreme Court had pretty much brought minority and non-minority institutions on par on many aspects of regulation and management. In light of this, it was very important for such a critical law to make itself clear about its applicability. Yet the lawmakers chose not to do so.

If, hypothetically, the lawmakers had indeed decided to include in the RTE Act a line about it’s applicability to minority schools – it certainly could not have been a blanket statement stating the Act applies to minority schools as well. Such an inclusion would be in direct conflict with Article 15(5) of the Constitution. Therefore, any clarity on applicability would have had to be in one of two forms

“Section 12(1)(c) of this Act shall not be applicable to minority educational institutions”

OR

“All sections of this Act are applicable to minority educational institutions as well, except Section 12(1)(c)”

Section 12(1)(c) is the section in conflict with Article 15(5). Above examples are only representative. Other sections which may conflict would have also have been included in the exemption list.

However, the key point is – with the inclusion of such a clause, the entire Act automatically becomes severable. That is, the law itself makes it possible to apply portions of itself while leaving out few. This is the exact principle used by the SC in Unaided Schools of Rajasthan in declaring that the RTE Act shall not be applicable to unaided minority schools. The same reasoning was retained in Pramati as well and unaided minority schools were also exempted.

Thus, legislation about applicability to minority institutions was deliberately avoided as otherwise, the law would have evolved itself into a severable Act.

We can thus clearly see how legislature abdicates and avoids clarity in making laws in order to obtain desired outcomes without having to expose their own stance clearly.

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A Legal Case for Shared Parenting

Provisions in the Indian Constitution related to Children’s Rights

There are not too many provisions in the Indian Constitution which talk explicitly about the rights of children, and the rights & duties of parents towards children. Article 39(f) briefly touches upon this topic, but only in passing reference.

Article 39(f) That children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment

However, this Article, being a part of the Directive Principles, is not really enforceable.

Apart from the above, the rights of children and parents are protected only in a generic sense by the rights protected under Part III

Procedure to be followed in the absence of domestic law

Issues such as custody of children, visitation rights, ‘best interest of children’ and responsibility of parenting have not been codified well under Indian law. While there is some coverage under Acts such as the Guardians & Wards Act 1898, the Hindu Marriage Act 1955 and the Prevention of Women From Domestic Violence Act 2005, the focus of the provisions under these Acts is more on the procedure to be followed with respect to these issues, rather than defining what considerations should go into determining custody, visitation and ‘best interest of child’.

It is therefore safe to say that there is NO clear domestic law on these topics.

The judiciary, over the course of several decades and judgements, has used the power of discretion it wields, to determine ‘best interest of child’ in adjudicating most of the cases involving disputes over custody.  However, in the recent judgement in “Justice K S Puttaswamy and Anr Vs Union of India and Ors”  the Supreme Court of India has laid down very clear guidelines on the process to be followed in such situations.

The honorable Supreme Court has said that in the absence of clear domestic law or legislation on any front, the relevant International law has to be construed as part of domestic law.

In para 91 (page 91) the Court says

In the view of this Court, international law has to be construed as a part of domestic law in the absence of legislation to the contrary and, perhaps more significantly, the meaning of constitutional guarantees must be illuminated by the content of international conventions to which India is a party

In the same judgement, in para 133 (page 130) the Court says

On the contrary, constitutional provisions must be read and interpreted in a manner which would enhance their conformity with the global human rights regime. India is a responsible member of the international community and the Court must adopt an interpretation which abides by the international commitments made by the country particularly where its constitutional and statutory mandates indicate no deviation. In fact, the enactment of the Human Rights Act by Parliament would indicate a legislative desire to implement the human rights regime founded on constitutional values and international conventions acceded to by India

Thus it becomes clear that International treaties and legislation, to which India is a party, must be considered as domestic law itself and adhered to, especially in cases where there is no explicit domestic legislation to the opposite effect.

Convention on the Rights of the Child

On the 2nd of September 1990, the United Nations Children’s Fund (UNICEF) came out with a Convention on the Rights of the Child. In its own words, the convention is defined as follows

The Convention on the Rights of the Child is an international treaty that recognizes the human rights of children, defined as persons up to the age of 18 years. The Convention establishes in international law that States Parties must ensure that all children—without discrimination in any form—benefit from special protection measures and assistance; have access to services such as education and health care; can develop their personalities, abilities and talents to the fullest potential; grow up in an environment of happiness, love and understanding; and are informed about and participate in, achieving their rights in an accessible and active manner

India is a party to this treaty.

The Convention contains several articles that confer rights on children on various aspects of their development. However, some articles that are relevant from the point of view of a child whose parents are separated are as below

Article 9(1) Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child

Article 9(3) Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests”

“Article 14(2) Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child”

“Article 18(1) Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern”

“Article 29(c) The development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own”

In summary, the rights conferred by the treaty, on children, and parents, can be summarized as follows

  1. Children cannot be separated from any of their parents, against the will of the parents
  2. Children have a right to maintain relations and contact with both their parents
  3. Parents have common (read as equal) responsibilities for the upbringing and development of the child
  4. Only under extreme scenarios, and if also in best interest of the child, can the above rights be restricted

Manifestation of existing practices on children’s rights

Under Indian jurisprudence, it is common practice to grant custody and guardianship to one parent and allow only visitation rights to the other parent. Even under the best circumstances, the non-custodial parent gets visitation rights to the extent of only a few hours a week. Over the course of a year, the non-custodial parent may get, under the very best of circumstances, a total of 30 days (aggregate) custody of the child. This translates to less than 10% of the time of the child.

Needless to say, due to such reduced access to the child, the child is denied the chance to maintain appropriate relations and contact with the non-custodial parent.

Viewing the same from the angle of the non-custodial parent, minimal custody and visitation rights renders it impossible to fulfill his or her duty towards the child, except perhaps financial obligations which can be discharged even without physical access to the child (through maintenance support and so on). The non-custodial parent has very limited, almost non-existent, opportunity in areas such as education of the child, imparting of moral and social values, developing respect in the child for culture, identity, language and the nation.

Thus, the prevalent practice of limited visitation rights greatly destroys the rights of the child, and the non-custodial parent, as guaranteed by the Convention on the Rights of the Child. In other words, it applies restrictions on the rights of the child and the non-custodial parent.

Restrictions on Rights – need for non-excessiveness

Under Indian law, it is very much allowed for the State to restrict the rights of an individual. However, the restrictions must possess several attributes for it to become applicable.

Udai Raj Rai, in his book “Fundamental Rights And Their Enforcement”, gives a descriptive list of the attributes that ‘reasonable restrictions’ must possess in order for them to become applicable. Few examples are

  • Restriction should not disproportionate
  • Restriction should not be more than necessary to prevent the evil sought to be remedied
  • Restriction should not be more than necessary to achieve the stated objective

In addition to the above, there are two important attributes of reasonable restrictions that must be adhered to

  1. The restriction should not be excessive
  2. The vagueness of statutory provision may make the restriction excessive or disproportionate

The Supreme Court of India also, over various judgements, has held the above to be valid tests of the reasonableness of a restriction.

In Chitaman Rao vs the State of Madhya Pradesh, the Supreme Court said

The phrase ‘reasonable restriction’ connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public

In State of Madras vs V G Row, the Supreme Court said

The nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict

It becomes quite clear from all the above that even when the right of an individual has to be restricted due to circumstances, it must never be excessive.

In other words every opportunity must be ensured that the individual gets to exercise his or her right to the maximum extent possible.

Shared parenting as the go-to solution

This article will not venture into discussing the concept of ‘Shared Parenting’. In short, shared parenting refers to a collaborative arrangement in child custody or divorce determinations in which both parents have the right and responsibility of being involved in the raising of the child(ren). Both parents obtain equal custody rights under this method, and also bear equal responsibility on other aspects of the child’s development as well.

There has been a considerable amount of research that shows shared parenting to be a very effective instrument in reducing the ill-effects on a child that has to grow under separated parents.

From the point of view of this write-up, it is quite clear that under shared parenting, the child

  • Is guaranteed equal access to both the parents
  • Gets an opportunity to maintain equal relations with both parents
  • Gets equal aid/attention from both his parents towards his or her physical, mental, social, moral and cultural development

From the point of view of the parents, shared parenting ensures

  • Both parents get equal responsibility, and opportunity, towards upbringing of their child(ren)

Research has established numerous other benefits of shared parenting, as it is the closest that comes to co-parenting. However, only the ones that are relevant from the point of view of enabling the rights of the child and parents have been mentioned here.

Conclusion

In the absence of clear domestic law, the Conventions on the Rights of the Child has to be adopted as part of Indian law. The said law grants several rights to the child which assure equal care from, and equal access to, both the parents. The said law also imposes duties on both parents towards upbringing of their child, even when separated.

Shared parenting is the only arrangement that can come close to fulfilling the requirements of the UN treaty, in the case of separated parents and upbringing of their common child.

Difference in interpretation between Religious Establishment Rights & Educational Rights

I want to highlight a strange difference in interpretation, by our executive and judiciary, of the Rights guaranteed under our Constitution for running our temples (religious establishments) and a section of our citizenry running educational institutions.

Common structure between religious establishment rights and educational rights

There is considerable similarity in the way rights related to religious establishments and educational establishments (for minorities) are coded in our constitution.

  • Both the rights are governed by two sets of Articles in the constitution
  • The first right is in the sense of a generic right. This right has an exception encoded.
  • The second right is a specific right to run the particular establishment.

Let us look at the specifics.

I) Rights related to religious establishments

Generic right

The generic right is provided by Article 25. It is as follows

25. (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion

By this right, all citizens are free to profess and practice any religion.

Restriction to the generic right

A sub-clause under Article 25 itself imposes some restrictions on the above right.

25. (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice

By virtue of this, the State can get involved in any economic or other secular activity even if the practice is religious.

Specific right

Under Article 26, all citizens have the right to establish and maintain religious institutions. For Hindus, this translates to temples and mathas.

26. Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—
(a) to establish and maintain institutions for religious and charitable purposes

We can notice from the wording of Article 26(1) that it is very broad and does not impose any restrictions.

Interpretation of the specific right

Over the years, our governments and courts have interpreted the above rights in such a way that even though the specific right (Art 26(1)) does not have any restriction, the restrictions under the generic right (Art 25(2)(a)) have been read along and hence State interference in management of temples and mathas have been held constitutional.

For e.g. in Pannalal Bansilal Pitti & Ors, the Court said

The right to establish a religious and charitable institution is a part of religious belief or faith and, though law made under clause (2) of Article 25 may impose restrictions on the exercise of that right…….

 The administration of religious institution or endowment or specific endowment being a secular activity, it is not an essential part of religion and, therefore, the legislature is competent to enact law.

Due to this line of interpretation, most of the State Governments in India have taken over management of Hindu temples.

II) Rights related to educational establishments

Generic right

The generic right to establish educational institutions is provided by Article 19(1)(g)

19. (1) All citizens shall have the right—

(g) to practise any profession, or to carry on any occupation, trade or business

Under this right, any citizen can open and run a school, college or any other form of educational institution.

Restriction to the generic right

A sub-clause under Article 19 imposes certain restrictions on the above generic right.

19. (6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, 2[nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,—
(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business…]

As one can see the State can make laws to impose restrictions on running educational institutions, just like it can for any other establishment.

Specific right (for minorities)

Under Article 30(1), minorities obtain rights to establish and maintain educational institutions.

30. (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice

Once again, we notice from the wording of Article 30(1) that it is very broad and does not impose any restrictions.

Interpretation of the specific right

When it comes to interpreting this particular specific right, governments and judiciary, over the years, have taken an opposite stance when compared with rights related to temples. Here, they have held that the specific right (Art 30(1)) will NOT be governed by the restrictions on the generic right (Art 19(6))

For e.g. in the Pramati judgement, we find the following

Religious and linguistic minorities, therefore, have a special constitutional right to establish and administer educational schools of their choice and this Court has repeatedly held that the State has no power to interfere with the administration of minority institutions…

Due to this, various laws such as RTE, fee-restriction-Acts etc are not applicable to minority institutions.

Conclusion

  • On the issue of temples, the restriction on the generic right is held as good enough to be imposed on the specific right.
  • On the issue of minority educational institutions, the restriction on the generic right is held as not having any impact on the specific right.

Educational Rights for Hindu Minority Communities

This post is part 2 of a 2-part series. Read the 1st one here.

Article 23 in the Draft Constitution

When the Constitution was being drafted, the Rights under Articles 29 and 30 were clubbed under a common Article 23. This Article had 3 clauses. Clause 3 had 2-sub-clauses. The entire Article consisted of clause 23(1), 23(2) and 23(3)(a) and 23(3)(b).

minority-rights-draft-3

Two crucial amendments to Draft Article 23

On the 8th of December 1948, Pandit Thakurdas Bhargava moved 2 important amendments to the above draft. In a significant development, both these amendments were accepted in full by Dr B R Ambedkar.

Amendment 1

The first amendment proposed a re-write of sub-clause 2. The proposed wording was

No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them

While justifying this amendment, Pandit Bhargava laid down his arguments on 3 different aspects

1) The first change was to replace the word ‘minority’ with ‘any section of the citizens’. This was proposed because Pandit Bhargava felt that when it came to educational rights, there should NOT BE any discrimination between majority and minority

In educational matters, I cannot understand, from the national point of view, how any discrimination can be justified in favour of a minority or a majority

2) The second change was to include institutions which received State aid, in addition to those institutions which were run by the State

3) The third, and *critical* change, was to remove the word ‘community’ from the clause and replace it with ‘race or caste’. This was done because Pandit Bhargava felt that whatever was conveyed by the word ‘community’ was already fully captured by the words ‘religion’ and ‘language’. His full explanation on this aspect is given below

Now, Sir, the word ‘community’ is sought to be removed from this provision because ‘community’ has no meaning. If it is a fact that the existence of a community is determined by some common characteristic and all communities are covered by the words religion or language, then ‘community’ as such has no basis. So the word ‘community’ is meaningless and the words substituted are ‘race or caste’. So this provision is so broadened that on the score of caste, race, language, or religion no discrimination can be allowed

As noted above, this entire amendment was accepted by Dr B R Ambedkar and the same was included in the Constitution as Article 29(2)

Amendment 2

This was a change to Article 23(3)(a) which eventually became Article 30(1). Let us look at the ‘before’ and ‘after’ versions of this clause.

Before

All minorities, whether based on religion, community or language, shall have the right to establish and administer educational institutions of their choice

After

All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice

As highlighted, the key, and only, change made here was the deletion of the word ‘community’.

Pandit Bhargava, while debating this amendment, made the following submission

This is an amendment to amendment No. 690. There is not much to be said. The word ‘community’ as I said before has no meaning. No common characteristic can differentiate one community from another which is not covered by the words ‘religion or language’. These words sufficiently cover the field that is sought to be covered by the word ‘community’. Therefore the word ‘community’ has no meaning in that provision and therefore it should be deleted.

The key part of the submission here is the referral to the explanation of the previous amendment. Pandit Bhargava said that the purpose of removal of ‘community’ was because it was sufficiently covered in the remaining words itself.

Dr B R Ambedkar’s explanation of the term ‘minorities’

While finally discussing inclusion of these 2 amendments, some relevant portion of Dr Ambedkar’s speech is extremely important.

While initiating the discussion on the amendments, he said thus

Sir, of the amendments which have been moved to article 23, I can accept amendment No. 26 to amendment No. 687 by Pandit Thakur Dass Bhargava. I am also prepared to accept amendment No. 31 to amendment No. 690, also moved by Pandit Thakur Dass Bhargava

Thus, at the outset, he accepted the two amendments.

Then, Dr Ambedkar gave a detailed explanation of the term minorities. Instead of paraphrasing it, I reproduce relevant portions as-is

The first point that I would like to submit to the House as to why the Drafting Committee thought it necessary to alter the language of paragraph 18 of the Fundamental rights is this. On reading the paragraph contained in the original Fundamental Rights, it will be noticed that the term “minority” was used therein not in the technical sense of the word “minority” as we have been accustomed to use it for the purposes of certain political safeguards, such as representation in the Legislature, representation in the services and so on.

The word is used not merely to indicate the minority in the technical sense of the word, it is also used to cover minorities which are not minorities in the technical sense, but which are nonetheless minorities in the cultural and linguistic sense. For instance, for the purposes of this article 23, if a certain number of people from Madras came and settled in Bombay for certain purposes, they would be, although not a minority in the technical sense, cultural minorities…..

The article intends to give protection in the matter of culture, language and script not only to a minority technically, but also to a minority in the wider sense of the terms as I have explained just now. That is the reason why we dropped the word ‘minority’ because we felt that the word might be interpreted in the narrow sense of the term, when the intention of this House, when it passed article 18, was to use the word ‘minority’ in a much wider sense, so as to give cultural protection to those who were technically not minorities but minorities nonetheless…

I have supplied emphasis in the above quotes to the most important portions of the speech. The following can be gathered from the speech.

By stating that the meaning of minorities is NOT THE SAME as in political safeguards, Dr Ambedkar has clearly stated that the term here goes beyond religious minorities and SC/STs since the entire discussion around guaranteed representation in legislature and services was based on religion (Muslims and Sikhs, especially) and to SCs and STs.

Dr Ambedkar has also clearly stated that these rights are for those who are minorities in the cultural and linguistic sense. Since all religions apart from Hinduism have already been covered under Article 30(1) anyways, the term ‘cultural minority’ would be redundant for them and therefore it is referring to Hindu communities only.

In the third portion of the speech quoted, the highlighted part shows that Dr Ambedkar feared that the word minority would be interpreted in the narrow sense of the term i.e as non-Hindus. Hence he kept referring to the phrase ‘technically not minorities but minorities nonetheless”

We should also remember that when all these discussions took place, all the clauses and sub-clauses were under one single Draft Article (23). Therefore, the explanation of the term minorities provided by Dr Ambedkar is fully relevant to what eventually became a separate Article 30.

One additional point. When Pandit Bhargava defended the removal of the word ‘community’ from Article 30(1), he said his explanation for this was exactly the same as it was for Article 29(2) which means it was meant to be ‘race and caste’ also which was covered under the umbrella term of ‘religion’.

Based on all this distinct evidence, we can safely conclude that the phrase ‘based on religion’ in Article 30(1) not only means minorities when compared across religions, but ALSO MINORITIES WITHIN A RELIGION.

Therefore, communities such as Lingayats, Vokkaligas, Brahmo Samaj and others, who form a distinct minority ‘community’ under the broader Hindu religion also qualify for Rights under Article 30(1) WITHOUT HAVING TO MOVE OUT OF HINDUISM.

References:

  1. Constituent Assembly Debates, Volumes V and VII
  2. The Framing of India’s Constitution, A Study – By B Shiva Rao, First Published 1968

Evolution of Minority Cultural & Educational Rights

This post will be part of a 2-post series where I aim to prove that the makers of our Constitution very much intended to provide Educational Rights to all communities, INCLUDING THOSE WITHIN THE HINDU RELIGION.

The deduction of that intention will be made in the 2nd post of this series. However, in order to get there, it is important to understand the textual transformation of the minority cultural and educational rights in our Constitution during its making.

Draft under Sub-Committee of Fundamental Rights

The first draft of the cultural and educational rights of minorities was prepared by a team consisting of K M Munshi, K T Shah and Harnam Singh. The draft prepared by them was placed in front of the Sub-Committee of Fundamental Rights on the 27th of March 1947.

The Sub-Committee felt that this particular area was better placed under the supervision of the Minorities Sub-Committee and transferred the drafting to this group. On the 19th of April 1947, the Minorities Sub-Committee came up with the first official draft which looked as below

minority-rights-draft-1.png

Clause 18 in the interim report

The Minorities Sub-Committee deliberated further on the above 6 points, and came up with a refined version which came to be included as Clause 18 in the Draft Constitution. In this Clause 18, sub-clauses (i), (v) and (vi) from the first draft were dropped and sub-clauses (ii), (iii) and (iv) remained, with some modifications. Clause 18 looked as below

minority-rights-draft-2.png

It is to be noted that even in the above draft version, clauses 1 and 2 still retained the term minorities.

Article 23 in the Draft Constitution

Further deliberations on the above draft took place on the 1st and 3rd of November 1947 and a refined version of the Article 23 came to be prepared. This looked as below

minority-rights-draft-3.png

The key difference noticeable in the above draft is that under clause 1, the word ‘minority’ had been replaced by ‘any section of the citizens’ and some other changes to the wording had been performed.

Articles 29 & 30 of the Indian Constitution

On the 7th and 8th of December 1948, Draft Article 23 came up for discussion in the Constituent Assembly. 2 key changes took place

  1. sub-clause (2) was re-written. The new sub-clause read
    • No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them
  2. The word “community” was dropped from sub-clause 3(a)
    • Sub-clause 3 (a and b) were moved out as a new Draft Article 23-A

With the above 2 (main) amendments included, Draft Articles 23 and 23-A were approved and included in the Constitution, and finally became Articles 29 and 30.

The Articles now looked as below

minority-rights-draft-4.png

The amendments moved to modify what became 29(2) and 30(1) give some very important clues on the real intentions of the makers of the Constitution. Hence it will be covered in detail in the next post.

Core and the Rationale Behind Equal Rights for All Institutions

This article is a response to the article titled “Jamia and the Rationale Behind Special Rights for Minority Institutions” published by The Wire on the 22nd of August 2017, in which the author has attempted to justify, with several arguments, the need for special status for minority educational institutions. A response is especially important since the author is a well known thought leader on minority rights.

The response will be for several of the claims and arguments made in the article. I will briefly quote or paraphrase the argument made, and then provide a counter response under each heading.

Intent of the Constitution makers

The article quotes the statements of Sardar Patel and G B Pant to claim that the makers of the Constitution always intended to bestow special privileges to minorities.

As part of the same deliberations (The Debates of the Constituent Assembly), while discussing about Article 29(2), Pandit Thakur Das Bhargava had this to say

Unfortunately, there is in some matters a tendency that the minorities as such possess and are given certain special rights which are denied to the majority

In educational matters, I cannot understand, from the national point of view, how any discrimination can be justified in favour of a minority or a majority

When discussing about Article 30(1), Professor K T Shah introduced an amendment to add a sub-clause that read as follows

Provided that no part of the expenditure in connection with such institutions shall fall upon or be defrayed from the public purse; and provided further that no such institution, nor the education and training given therein shall be recognised, unless it complies with the courses of instruction, standards of attainment, methods of education and training, equipment and other conditions laid down in the national system of education.

The above sub-clause bound the rights given under Article 30(1) to the conditions that would laid down under a common national system of education.

It becomes clear from the above discussions and attempts in the Constituent Assembly that there were distinct voices in the house that wanted Equal, and not Special, rights to minorities with respect to educational institutions.

Substantive Equality

The author of the referenced article justifies the special rights to minorities using the reservation policy for under privileged communities.

The authors of the constitution recognised that India needed ‘substantive equality’ and thus they made provisions for reservation in favour of weaker sections and special rights for the minorities

A starting point for reading up on ‘substantive equality’ may be this wikipedia article. However, the concept of substantive equality is only suitable, if at all, in situations where distribution of resources or opportunities, such as seats, jobs and scholarships are involved. In other words, substantive equality can only be applied in zero-sum games. Due to the inherent advantage enjoyed by the majority, if ‘formal equality’ is used in distribution of resources, the minority may never get an opportunity to compete on equal terms and get their share. Hence in many countries, affirmative action, a form of substantive equality, is used.

For e.g. if there are only 100 seats in an institution, and if merit is the only criteria, then children belonging to the dalit castes (for e.g) whose families have never had the opportunity to grow up in an ecosystem that enables children to crack entrance exams may never make the cutoff. In such situations, reasonable reservations under substantive equality does help to an extent.

However, the establishment and maintenance of educational institutions is a completely non-zero-sum game. It is no ones argument that allowing the majority to run institutions under the same rules and regulations is going to deny the ability to do so to minorities. Further,  the field of educational institutions, though charitable, is still a competitive market. Under the non-zero-sum game theory, it is well recognized that if one of the parties involved is subjected to “restriction of alternatives”, then that party eventually is forced to go with the opposite party, to maximize payoff.

In the present case, by not specifying any explicit rights to the majority, subjecting them to a myriad of educational laws and rules, and at the same time exempting minorities from almost all of the laws, the State is effectively restricting alternatives to the majority community. In the long run, the majority community, in order to maximise its payoff (on factors such as fees, standards, teachers’ pay and so on) WILL have to go with minority institutions. This will have a devastating effect on majority institutions!!

(Do read up the link on non-zero-sum game theory linked above; It explains the threat to the majority perfectly)

State-wise classification of minorities

The article claims that there is nothing preventing Hindus from claiming and enjoying minority rights in states where they are in minority, such as Jammu Kashmir and Punjab.

But we must remember that even Hindus have religious minority status in a few states and are fully entitled to all the privileges as linguistic minorities in the remaining states

This is only theoretically correct.

In reality, all the privileges granted to religious minorities in India are governed by the NCM Act and the NCMEI Act (specific to educational institutions). Under both these Acts, the Government of India has the power to notify religious communities as minorities. As it stands today, only 6 communities – Muslims, Christians, Jains, Buddhists, Sikhs and Parsis are designated as minorities by the GOI.

No one else, apart from these 6, can enjoy any minority rights anywhere in India.

The author further quotes the Supreme Court judgement in “N. Ammad vs The Manager, Emjay High School” to support the contention that Hindus too can enjoy minority rights. The said judgement was delivered in 1998 when no Act existed that had the provision to declare institutions as minority. However, post the creation of NCMEI, every educational institution that wants to enjoy minority rights has to be certified as a minority by either a Competent Authority (CA) or the NCMEI. And both the CA and NCMEI are bound by the GOI’s notification that defines who a minority is.

History of minority rights in other countries

The article subsequently quotes several international laws and treaties to claim granting of ‘Special’ Rights to minorities is a long standing feature of International law.

The idea of special rights for minorities is not new and dates back to the 19th century

I quote below several of the laws cited by the author and then highlight the exact stance of those very laws on this issue.

a) Article 19 of the Austrian Constitutional Law (1867) 

The exact text of Article 19 of the Austrian Constitutional Law (1867) is as below

….All the languages used in the provinces are recognized by the State as having equal rights with regard to education, administration and public life

Notice the phrase “equal rights” which places all communities on equal pedestal with regard to educational rights.

b) Hungary’s Act XLIV of 1868

The relevant text of Hungary’s Act XLIV of 1868 is quoted below

The Act (Article 26.) further ensures that all citizens, communes and Churches of all nationalities shall be free in the future — as they were in the past too — to found
primary, secondary and higher education institutes and associations, the language to be used by such institutes and associations to be determined by those responsible for
their foundation

Here too, one can easily notice “all citizens….and…all nationalities” being given equal rights without any special privilege to any section of citizens.

c) Peace treaty between Allied and Associated Powers and Poland

The portion of the treaty related to minority rights, especially with respect to educational rights is produced below

Art. 8. Polish nationals who belong to racial, religious or linguistic minorities shall enjoy the same treatment and security in law and in fact as the other Polish nationals. In particular they shall have an equal right to establish, manage and control at their own expense charitable, religious and social institutions, schools and other educational establishments, with the right to use their own language and to exercise their religion freely therein.

Quite clearly the treaty actually grants equal, and NOT special, status to minorities.

d) Peace treaty between Allied and Associated Powers and Bulgaria (known as the Neuilly treaty)

A common format was used for treaties between Allied and Associated Powers and several countries such as Bulgaria, Albania and so on. The relevant portion of the treaty is produced below.

Article 54: Bulgarian nationals who belong to racial, religious or linguistic minorities shall enjoy the same treatment and security in law and in fact as the other Bulgarian nationals. In particular they shall have an equal right to establish, manage and control at their own expense charitable, religious and social institutions schools and other educational establishments, with the right to use their own language and to exercise their religion freely therein

From all the above treaties and Acts (referred to by the author himself), it is evidently clear that every single country grants *Equal* rights to minorities with regard to establishing educational institutions, and NOT special rights.

Rights under Article 19

The article then goes on to claim that the majority in India enjoy the same rights as Article 30(1) but under Article 19.

Non-minorities too have a similar right under Article 19

This is totally incorrect. Rights under Article 19(1)(g) are generic rights to practice any profession or occupation available to all citizens including minorities too. Of course, it does cover the right to open educational institutions but it is a much weaker right than that available to minorities under Article 30(1).

The rights under Article 19(1)(g) are subject to several restrictions, like for e.g. those under Article 19(6) where as those under Article 30(1) have no restrictions. The Supreme Court of India also, on several occasions, has reinforced this facet of Article 19(1)(g). A couple of relevant portions from the 2014 Pramati judgement is sufficient to confirm this difference.

Reference to Article 19(1)(g) and Article 15(5)

…Clause (5) in Article 15 of the Constitution, thus, vests a power on the State, independent of and different from, the regulatory power under clause (6) of Article 19…

Reference to Article 30(1)

the minority educational institutions, by themselves, are a separate class and their rights are protected by other constitutional provisions

The above snippets clearly show majority rights under Article 19(1)(g) being subject to restrictions under 19(6) and 15(5) while no such restrictions exist for Article 30(1).

Hence the comparison between the two is an attempt to draw a false equivalence.

Reservations in Private Majority Institutions

Next, the article claims private majority institutions like Amity, Bennett and others enjoy privileges equal to that of minority institutions.

Private, unaided universities like Amity, Bennett or Ashoka are not at too much of a disadvantage. Like minority institutions, they too are exempt from the SC/ST/OBC reservations

This, too, is incorrect.

Amity University comes under the ‘Maharashtra Act No XIII of 2014’ Act and is subject to the same reservation policy as other institutions. This condition is covered by Sections 6(2) and 35(3) of the Act. The University is also subject to other guidelines under the UGC Act.

Similarly, Bennett University is also subject to the Government’s reservation policy for private unaided Universities, as clearly mentioned in their website.

Miscellaneous

I am clubbing together a few other incorrect claims made in the article, in this common section.

The article claims JMI does not enjoy sufficient autonomy.

In fact, universities like AMU and JMI hardly have any substantial autonomy as they receive funds from the government

The truth is that JMI is a minority institution, as it stands today due to such recognition from NCMEI in 2011 and therefore enjoys all the rights and privileges that are available to it.

Next, the article claims that AMU was denied minority status due to it adopting standards and control procedures per Government rules.

In AMU’s case, on this very basis, the Supreme Court denied the institution its minority character

This is far from the truth. In “S. Azeez Basha And Anr vs Union Of India” the primary reason why AMU was denied minority recognition was because it was found to have not been established by the minority community.

The article also claims all minority institutions educate 50% non-minority students.

Minorities invest their resources, properties and time and then educate 50% non-minorities in their institutions, yet we have problems with these institutions which are playing a major role in uplifting minorities

Once again, this is incorrect. The rules of almost all states regarding admission of minority students is very clear. There is a minimum stipulation, which varies from 25% to 50%, from state to state. However, every institution is fully free to admit students of their own community even up to 100%. In fact, the very fact that even 25% stipulation per RTE Act has not been mandated for minority schools confirms this point.

Conclusion

Minority educational institutions enjoy a significant advantage in terms of rights and exemption from obligations and rules, none of which are available to majority institutions. In a non-zero-sum area such as educational institutions, such a privilege, coupled with a heavy regulatory regime for majority institutions, means minority institutions enjoy an unfair competitive advantage.

SJW Laws: Designed for Misuse?

Recently, the Supreme Court of India issued some landmark directions to curb the menace of misuse of the draconian IPC 498A. It has brought in a more rigorous review process, in the form of Family Welfare Committees, to reduce the problem of false cases and consequent arrest of innocent people.

Naturally, this new directive has attracted the ire of feminists and SJWs. In spite of strong evidence regarding rampant misuse of the law, these activists refuse to acknowledge the problem. One recent article on this issue totally dismissed the existence of the problem in one line stating the total number of cases of misuse was ‘miniscule’. At the same time, the article dealt in great detail the issues faced by the victims of domestic violence and abuse *in dealing with the criminal justice system* of India.

Since I want to deal with a different topic in this post, I will only briefly comment on the said article.

  • The article is totally wrong regarding the prevalence of misuse. Like quoted earlier, there is ample evidence indicating the rampant nature of the problem. It is also unlikely that multiple High Courts and multiple benches of the Supreme Court, over a period of many years, would come to the same conclusion that misuse was common, if it were actually not so.
  • The article is very accurate on the issue of the problems and inefficiencies of our justice system. I fully agree with the suggestion of the author that real justice would be served if separate courts are setup for such issues, and cases are disposed off in three months. In fact, if we actually reach a stage where we are able to dispose off cases in three months, then an additional month in the initial stage, for the purpose of weeding out false cases would hardly make a difference, given the fact that today it takes 5 years or more for such cases to be concluded. Also, a drastic reduction in false cases would only reduce the burden on the criminal justice system thereby helping it deal with genuine cases even faster.

The interesting part of the above quoted article is the detail with which it highlights the problems of our justice system today. Inordinate delays in getting the police to accept FIRs, the snail’s pace at which the courts move, the harassment to which the victims are put to, the abysmally low conviction rate and victims being forced to ‘settle’ the cases – are all true. But these are true for any case in India today, not just 498A or dowry cases. And it’s true for even men who end up fighting cases. Even if an individual has to file an FIR for a lost cellphone or a laptop, the hassles are the same. If an individual loses his or her vehicle and then it is found by the police, it takes several months to obtain the same from the courts. Obtaining a bail, especially for the poor, can be an arduous and long process.

If one were to categorize the most important issues with the criminal justice system today, I am confident a majority would agree with the following three

  • Low conviction rate
  • Inordinate delay in delivering justice/punishment
  • Hassles faced by the parties involved

Keeping in mind the above issues, especially the three listed above, I have tried to study a few of the criminal laws and amendments that have been brought into effect in India in the past few years. In particular, I tried to analyse the following.

Attempt at circumventing systemic problems

When we look at these laws which have come into existence in the past 2 decades or so, we can identify a conscious attempt in shaping the law in a way some of the problems existing with the criminal justice system is overcome. One point to note is that these laws do not attempt changing or improving any of the processes with justice delivery. They introduce measures in the law to *work around* existing issues.

I) Increasing the scope of the crime

Given the low conviction rates in India for almost all crimes, one striking similarity between all these laws drafted by SJWs is the effort to increase the scope of the crime. The theory here seems to be that if more people are subjected to a law, the natural consequence would be that more people would get convicted. This manifests in two ways

  • Loosening the definition of the crime
  • Widening the definition of accused

The tendency here is to enlarge the definition of what constitutes a crime and also make it abstract to measure and prove. A second aspect is to include as many people related to the incident as possible amongst the accused.

In the DV Act, ‘domestic violence’ includes “….includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse….”. The Act goes on to define what constitutes verbal, emotional and economic abuse and includes an extremely broad definition for each of these. Even if a couple have a fight and words are exchanged between them, the retorts of the husband to the wife can and will qualify as ‘verbal violence’. Further, under the DV Act, all persons who shared a domestic household with the victim can be named as accused.

In the SC/ST Atrocities Act, there are nearly 29 categories of atrocities defined under Section 3. The Act lists these Atrocities using english alphabets and after running out of alphabets has sub-clauses named za, zb and zc. The list includes offences such as “giving false information…that can cause annoyance to a SC/ST member”, “insulting a deceased SC/ST member”, “…dumps obnoxious matter in the neighborhood…..” and so on. The definition of who can be an accused is again very broad – “any person who is not a member of the SC or ST community”

Under the modified rape laws (since 2013), the definition of rape has been changed and includes a definition that reads “…manipulates any part of the body of a woman so as to cause penetration into the …..or any part of body of such woman or makes her to do so with him or any other person….”. Recently Ms Madhu Kishwar has filed a PIL in the Delhi High Court highlighting such a classification of the offence and states, rightly, that even a non-sexual penetration can be classified as rape under this new law.

In the draft MASUKA lynching act, it is proposed that anyone who conspires to lynch will be treated in the same manner as one who lynched and will be subject to the same punishment. In other words, even if a person has not actually committed the act of lynching, he can still be punished for lynching.

Thus we see how, by loosening the definition of the crime and widening the net for accused, these laws intend to cause more and more people to be dragged in as accused. It does seem like this tendency is a response to the prevalent low conviction rates in our judicial system.

II) Interim relief or justice

A second aspect identified earlier in this post, with regard to the problems with the criminal justice system, is the inordinate delay in cases reaching closure. Coupled with low conviction rates, this means that most accused do not undergo punishment that the law actually prescribes for the offences.

The laws under analysis definitely make an attempt to work around this problem by introducing measures that aim at delivering some form of punishment to the accused, and relief to the victims, during the pendency of the trial itself.

Under the DV Act, the victim woman is entitled to a ‘protection order’ from the courts. If such protection order is issued, then the accused cannot engage with the victim in any form whatsoever. There cannot even be verbal communication attempted with the victim. At the same time, the victim is given (in many cases, rightly so) the right to live in the shared household, along with the accused (husband and his family). It is no brainer that a protection order combined with a residence order is a most impractical benefit accorded. Living with a family while being legally prevented from communicating with each other is more a punishment than a relief.  In numerous cases, therefore, the husband is forced to vacate the property to avoid further criminal charges.

Under the same DV act, during the pendency of the case, the accused cannot dispose off any assets of household articles in which the victim can have an interest or entitlement. So if a case drags on for years and even if the accused have genuine financial constraints (for e.g.) they cannot dispose off any property or assets on which the victim can stake a claim.

Under the new rape laws, the ‘minimum punishment’ irrespective of the extent of the crime is 7 years imprisonment. The law has completely done away with the concept of graded punishment depending upon the severity of the crime, which is a common principle of natural justice. Like the PIL by Ms Madhu Kishwar highlights, the punishment for unwanted bodily embrace and physical penetration, though both definitely crime, are equated and same punishment is mandated by the law.

Under the proposed MASUKA law, any person who offers any assistance to an accused under the Act can be sentenced to 5 years of imprisonment. Such a measure would definitely prevent family and friends from offering any assistance to an accused, even if they know that he or she is innocent. The trial stage of the case itself can therefore become a terrible punishment for the accused with complete lack of support.

Thus, these laws have creatively incorporated various clauses in them that serve to deliver ‘interim justice’ to the accused. This is a definite response to the problem of long delays and low conviction rates in our system.

III) Reducing hassles for the accused

A third problem we had noted earlier is that of the hassles that have to be faced by the parties involved. Cases can go on for years. Victims (and accused) have to appear in courts hundreds of times. Interim reliefs take months to be pronounced. Dealing with police, public prosecutors and courts can be extremely consuming.

While the above problems are common to both victims and accused, the laws have focused on introducing measures that attempts to alleviate the problem for victims.

Under the 498A Act, once a chargesheet is filed, the victim has to appear before the courts only during evidence stage. The accused of course have to appear during all hearings. To be fair though this rule is common to all criminal cases when trial occurs. However, this provision facilitates those who file false cases because they really don’t have to ‘fight’ their cases since the State does so on their behalf.

Interim monetary reliefs for things such as medical expenses, loss of earnings and so on can be granted under the DV Act and these, and maintenance, have to be “…consistent with the standard of living to which the aggrieved person is accustomed”

Under the SC/ST Act, the victims, informants and witnesses are entitled to traveling and maintenance expenses during the investigation, relocation and social-economic rehabilitation.

Under the proposed MASUKA Act, the following is proposed in relation to a witness

“….it shall be the endeavour of the Court to ensure that any witness is not required to attend court on more than two dates of hearing”

Thus we see that various provisions to attempt reduce the trouble for victims is incorporated into these laws.

Facilitation of misuse

Even though there are 2 opposing parties involved in any dispute, any attempt to circumventing problems with the system can only favor one side. That is the very nature of remedies attempted. And naturally, such remedies in a law have to be oriented towards the victim(s).

The fall out of these provisions is that they greatly facilitate misuse.

  • The increased scope of the crime makes it very easy for those who misuse to indict anyone whom they wish to target
  • The attempt at interim relief or justice makes it very attractive for those who misuse to inflict pain and misery upon their targets and also derive monetary benefits
  • The aim of reducing hassles for the victims makes it possible for those who misuse to undergo no trouble when engaging in falsely accusing others

Another common, and extremely important, aspect of all these laws is that there is absolutely no provision for penalty and/or punishment for misuse. This means even if the case is proven to be a deliberately false one, the laws themselves provide no counter measure to punish those who misuse.

For a person who wishes to misuse the law, the following four weapons are available

  • Ability to indict whomsoever you wish (to target)
  • Ability to inflict considerable social, economic, financial and physical damage during the trial
  • Minimal hassle while engaging in the false case
  • Zero punishment even if caught

Given the above, it is a no-brainer that these laws are widely misused.

Conclusion

Laws should focus on accurate description of the crime, the duties of the victim, accused and State upon a crime occurring, the punishment to be meted out and the relief to be provided. If the laws, in addition, venture into overcoming the deficiencies of the justice system, they will end up becoming biased towards the victims and against the accused. Under such circumstances, rampant misuse of such laws is an unfortunate but natural side-effect.