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”


“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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