RTE – Destroying Hindu Run Schools

Link to a presentation, prepared by us, giving comprehensive information about #Core1 and RTE, tracing its genesis from the formation of the Constitution to the various case laws and analysing its effects as of today.

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Attempts at Core1 Prior to the Debates in the Constituent Assembly

Introduction

Before proceeding further with this article, it would be better if the following two articles are read, and their context understood.

  1. The initial version of Article 30(1) proposed by one of the key members of the Constituent Assembly Experts Committee
  2. The modifications that happened to (the eventual) Article 30(1) before it was officially included as part of the *final* Draft Constitution of India.

The deliberations before the Constituent Assembly debates

The Draft Constitution of India, as finalised by the Drafting Committee was submitted to the President of the Constituent Assembly on February 21, 1948. This version of the Draft had included all the modifications and recommendations given by the various sub-committees of the Constituent Assembly.

Copies of this Draft were circulated widely throughout the country, and feedback and suggestions were sought. Between February and October of 1948, various comments were received. To discuss and make good use of these comments, the Drafting Committee, and then A Special Committee, met in March and April of 1948 respectively.

In October 1948, the Drafting Committee met again and finalised the version of the Draft Constitution that would be placed in the Constituent Assembly for thorough discussion and passing.

In each of the above meetings, the ‘Constitutional Adviser’ had taken detailed notes and recommendations. These notes officially reflected the views of the Drafting Committee and/or the Special Committee. Hence these notes are very valuable in understanding the position of the Constitution makers on various issues.

Version of Article 30(1) placed before public for feedback

The version of Draft Article 23(3)(a) – that eventually became Article 30(1) – which was put forth for feedback and review was as below.

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

It was upon this version of the Article that various members provided feedback during February-October 1948.

Amendments sought in the Draft Article 30(1)

A list of the amendments sought in this Article, and also the official notes prepared by the Constitutional Adviser, reveals the mindset of the Constitution makers on this important provision.

Amendment moved by B. Pattabhi Sitaramayya and 6 others

That in article 23, clause (2) and sub-clauses (a) and (b) of clause (3), after the word religion, the words “caste, creed” be inserted

This amendment was not accepted but the official reasoning given was as below

Note: The term “community”  would seem wide enough to include “caste” and “creed” would seem to be covered by “religion”. The amendment therefore would seem to be unnecessary”

It becomes extremely clear from the words of the Drafting Committee that caste, which is a unique feature of Hindu religion, was very much meant to be considered in this provision. Therefore, the benefit of this right for minorities within the Hindu religion was also very much intended to be provided.

Amendments moved by Jaya Prakash Narayan:

Jaya Prakash Narayan moved two amendments, which reveal a completely #Core mindset.

  1. The Article must completely drop the benefit for religious minorities
  2. Another sub-clause must be included which reads as – “Denominational and communal educational institutions are forbidden except for the purposes of the study of religion and oriental learning”

Sri Jaya Prakash Narayan submitted the following as the reason for moving the two amendments.

Secularization of general education is necessary for the growth of national outlook and unity

The Drafting Committee did not accept these two recommendations indicating that a change of policy would be needed, and also indicated that the promised benefit to Anglo-Indian community would not be possible if this change was accepted.

Note: This amendment involved a question of policy”

Conclusion

Two very important conclusions can be drawn from these proposed amendments, and the responses of the Drafting Committee to these amendments.

  1. Several members of the Constituent Assembly made sincere attempts to secularise this particular provision in the Constitution and make it uniform across all religions thus ensuring no untoward disadvantage for Hindus.
  2. The Drafting Committee did see the applicability of Article 30(1) for ‘minorities within the Hindu religion’ as seen by their response to the inclusion of ‘castes’ as a denomination.

References

  • The Framing of India’s Constitution – A Study – by B Shiva Rao and Others
  • The Framing of India’s Constitution – Select Documents Vol IV – by B Shiva Rao and Others

The ‘Core’ Judgement in Re Kerala Education Bill

As part of a short discussion on a previous article on Twitter, a reference to the dissenting judgement of Justice Venkatarama Aiyar in ‘Re Kerala Education Bill vs Unknown’ came up.

Since that dissenting judgement has many aspects in line with the #Core1 approach, this article attempts to highlight the various views of Justice Aiyar, along with short notes (where needed) and relevant portions of his judgement.

(Notes are made as bullet points. Portions of judgement quoted in italics)

Minority institutions have no inherent right under Article 30(1) for recognition from the Government

  • There is no inherent right embedded in Article 30(1) that mandates a Government to grant recognition to a minority institution
  • Under Article 30(1), both purely-religious and secular institutions can be opened. If such a right of recognition is accepted, it then means that the Government has to mandatorily recognise purely religious schools, which goes against the stated goal of the Constitution to be secular. Hence no such right can be read into Article 30(1)

“The educational institutions protected by Art. 30(1) might impart purely religious
instruction. Indeed, it seems likely that it is such institutions that are primarily intended to be protected by Art. 30(1). Now, to compel the State to recognise those institutions would conflict with the fundamental concept on which the Constitution is framed that the State should be secular in character. If institutions which give only religious education can have no right to compel recognition by the State under Art. 30(1), how could educational institutions established by minorities and imparting secular education be held to possess that right ?”

Policy behind Article 30(1) is to ensure the ‘majority’ do not destroy the ‘minority’

  • The main purpose behind Article 30(1) was to ensure that the majority in a State do not impair the rights of the (religious and linguistic) minorities
  • Meant to aid minorities to preserve and develop their own culture
  • The State cannot prevent minorities from establishing educational institutions

But what is the policy behind Art. 30(1) ? As I conceive it, it is that it should not be in the power of the majority in a State to destroy or to impair the rights of the minorities, religious or linguistic. That is a policy which permeates all modern Constitutions, and its purpose is to encourage individuals to preserve and develop their own distinct culture..

In other words, the minorities should have the right to live, and should be allowed by the State to live, their own cultural life as regards religion or language. That is the true scope of the right conferred under Art. 30(1), and the obligation of the State in relation thereto is purely negative. It cannot prohibit the establishment of such institutions, and it should not interfere with the administration of such institutions by the minorities

Article 30(1) is a shield for minorities and not a sword against the majority

  • Meant to be used be minorities to protect themselves from any attack by the majority.
  • Not meant to be used to compel the majority to grant concessions (such as recognition, exemption from laws, etc)

The true intention of that Article is to equip minorities with a shield whereby they could defend themselves against attacks by majorities, religious or linguistic, and not to arm them with a sword whereby they could compel the majorities to grant concessions

Summary of State’s position vis-a-vis Article 30(1)

(1) The State is under a positive obligation to give equal treatment in the matter of aid or recognition to all educational institutions, including those of the minorities, religious or linguistic.
(2) The State is under a negative obligation as regards those institutions, not to prohibit their establishment or to interfere with their administration

Exemption from certain provisions/laws will lead to discrimination

  • If unstated provisions are read into Article 30(1), a reverse discrimination will ensue
  • This is because there will be laws which the majority will be forced to comply while the minorities stand exempted

While recognised institutions of the majority communities will be subject to clause (20), similar institutions of minority communities falling within Art. 30(1) will not be subject to it. The former cannot collect fees, while the latter can. This surely is discrimination

No ground for a more favoured position for minorities

In my opinion, there is no justification for putting on Art. 30(1) a construction which would put the minorities in a more favoured position than the majority communities”

Conclusion

With the advantage, now, of being able to look back at this critical segment of Education – we can confidently state that the dissenting judgement of Justice Venkatarama Aiyar was indeed the correct approach on issues related to Article 30(1). While it completely upholds the protection offered to minority institutions, it nevertheless recognises that the purpose of Article 30(1) was only limited to ensuring that the minorities are treated on par with the majority, and not with the intention of according any special privileges.

The fear of reverse discrimination that J Aiyar expresses has, as we all now know, come true!

The Original Form of Article 30

In an earlier article, I had blogged about the evolution of the Cultural and Educational Rights of the Minorities in the Indian Constitution in the form of Articles 29 and 30. In that post, I had covered the modifications that the relevant Articles underwent from the time the first draft of the would-be Articles was prepared by the Minorities Sub-Committee of the Constituent Assembly.

However, the genesis for the two Articles lay in the Draft Constitution prepared by various members of the Constituent Assembly. Many members, including B N Rau, Harnam Singh, K T Shah and others had their own ‘Drafts’, which contributed to the development of the various parts of the Constitution that was eventually adopted.

One such Draft Constitution was prepared by K M Munshi, who was one of the key members of the Committee that drafted the Constitution of India. K M Munshi was also a key member of several sub-committees such as the Order of Business Committee and the Experts Committee.

In the draft prepared by K M Munshi, Article XII covered the Religious and Cultural Rights of Citizens. This Article had 11 sub-articles.

Sub-article 3 of this Article is what eventually evolved into Article 30(1) of our Constitution. The entire text of Article XII (3) is as below.

Article XII(3) of K M Munshi’s Draft Constitution of 1947

3. Citizens belonging to national minorities in a State whether based on religion or language have equal rights with other citizens in forming, controlling and administering at their own expense charitable, religious and social institutions, schools and other educational establishments with the free use of their language and practice of their religion”

It is quite clear from the above text that the intention was to grant equal rights to all citizens irrespective of whether they belonged to the majority or the minority.

What is also interesting is that the wording of the above sub-article is extremely similar to articles in the Constitutions of several countries that were created by the Allied Powers immediately after the World War I. In fact, K M Munshi clearly indicated this to the Advisory Committee on April 22, 1947 that the minority rights contained in the Polish Treaty of 1919 was the basis for some of the minority related rights incorporated in the Draft Constitution.

The specific provision of minority rights in the Polish Treaty (and subsequently in the Polish Constitution) is as follows.

Article 8 of the Versailles Minorities Treaty of 1919

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”

The similarity in the structure and language of the clauses in the Polish Treaty and K M Munshi’s Draft Constitution is obvious.

While the article in the Polish Treaty remained as-is, the sub-article in the Indian Draft Constitution underwent several modifications and became eventually what is today Article 30 – which grants more privileges to minorities, thus placing the majority on a lower pedestal with respect to educational rights.

References:

  1. The Framing of India’s Constitution – A Study: B Shiva Rao and Others
  2. Pilgrimage to Freedom – Vol 1 – K M Munshi

An Analysis of the Lingayat Demand for Minority Religion Status

Link to my article, published by the kind folks at MyInd, on the recent controversy in Karnataka with the Lingayat community demanding a separate minority religion tag from the Government of India.

Why are the Lingayats in Karnataka demanding a ‘minority religion’ status?

Also read this excellent analysis by RealityCheckIndia on the same issue.

Lingayat protests are about the perverse legal regime in Indian Edu Laws

Issues with Constitutional Interpretation Styles

In the judiciary, various techniques or styles are deployed when it comes to interpretation of the Constitution. A study of these ‘Constitutional Interpretation’ methods help understand the approach taken, and the reasoning behind, the judgement arrived at in any particular case. Although interpretation styles can be attributed to any judgement, they become especially relevant in judgements where the Constitution is interpreted.

Classification of Constitutional Interpretation

Two classifications of the approaches are popular.

In the first classification, two categories exist: (a) Textualist and (b) Living Constitutionalist. The Textualist approach focuses more on the exact wordings of the particular law in the Constitution. To an extent the original intent of the lawmakers in framing the Constitution in the particular manner also is considered.

In the Living Constitutionalist approach, the Constitution is treated as an evolving document and the social, cultural, political and historical aspects of society, along with the wordings of the Constitution itself is given weightage. This approach gives far more power and leeway to the Judges to interpret a given situation and deliver judgements.

The Living Constitutionalist approach is the foundation of judicial activism. This approach has been detailed quite well in the recent Right to Privacy Judgement (page 280).

A second, equally popular, approach of classification exists. In his work ‘Constitutional Interpretation’, Philip Bobbit has categorized Constitutional Interpretations into six approaches – (1) Historical (2) Textual (3) Prudential (4) Doctrinal (5) Structural and (6) Ethical.

In the Historical approach, the focus is on determining the intent of the Constitution makers behind crafting a particular law the way they did it. The challenge here is to figure out how the makers intended the provision to take effect.

The Textual approach is quite similar to the Historical approach but an equal weightage is given in this style to interpret or suit the exact words of the provision to the current situation.

The Prudential approach revolves around understanding the logic behind a particular provision and thereafter interpreting it to resolve the current issue-at-hand.

The Doctrinal approach uses the text of the Constitution as an aid, along with the list of precedents set by the judiciary itself, in interpreting any provision.

The Structural approach lends focus to the structures of the Government setup by the Constitution and relies on infering what the provision is meant to serve.

The Ethical approach is also very similar to the Structural one but in addition it also tries to account for the cultural and moral aspects of society that potentially reflect (or ought to reflect) in the Constitution.

The Living Constitutionalist Approach

The Living Constitutionalist approach of the first classification can be considered as a combination of the latter 4 styles in the second classification while the Textualist approach is likely a combination of the Historical and Textual approaches of the second classification.

The Indian judiciary has moved from a Textualist interpretation style to an increasingly Living Constitutionalist interpretation style. Such a shift allows the judiciary to exercise greater flexibility and creativity in interpreting the Constitution. In some cases, such an approach allows the judiciary to fill in gaps due to ‘absence of clear laws’.

The most recent example of the product of such an approach is the Right To Privacy judgement where the Supreme Court declared Privacy as a Fundamental Right even though the text of the Constitution does not contain the word privacy, not even indirectly. The said approach also allowed the bench to disregard the doctrinal approach that was established via the M P Sharma and Kharak Singh judgements given by the same Court long ago.

Disadvantages of the Living Constitutionalist Approach

On the other hand, an increasing tendency to deliver judgements using the Living Constitutionalist approach has its own disadvantages. One of the disadvantages, highlighted by Chintan Chandrachud in his essay ‘Constitutional Interpretation’ as part of the book ‘The Oxford Handbook of The Indian Constitution’ (Oxford University Press), is methodological and doctrinal incoherence leading to inconsistency in case law. Chintan Chandrachud gives an example of how the Supreme Court, in the year 2013, gave 3 varying judgements related to electoral jurisprudence in 3 different cases leading to an inconsistent case law on this topic (the 3 cases being CEC vs Jan Chaukidar, Lily Thomas vs UOI and People’s Union for Civil Liberties vs UOI).

As a second example, consider the following

In the The Secretary,Malankara Syrian College vs T.Jose & Ors judgement, the Supreme Court made the following categorical observations with regard to the nature of Article 30(1)

“The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis- `-vis the majority.

…..

The right to establish and administer educational institutions is not absolute

However, in 2012, in the Society for Unaided Private Schools of Rajasthan vs Union of India judgement, the Supreme Court ruled thus

“The 2009 Act has been enacted to give effect to Article 21A. For the above reasons, since the Article 19(1)(g) right is not an absolute right as Article 30(1), the 2009 Act cannot be termed as unreasonable…

….

The right established by Article 30(1) is a fundamental right declared in terms absolute unlike the freedoms guaranteed by Article 19 which is subject to reasonable restrictions”

The rights (or the restrictions thereof) under Article 19 were used to hold RTE applicable to non-minority schools while the rights under Article 30(1) were used to decide RTE won’t apply to minority schools. And in this case, the two rights were held unequal.

Thus, the use of Living Constitutionalist approach means that the Courts can end up reversing their own position on the exact same issues.

Judicial Activism

The other main disadvantage of the Living Constitutionalist approach is that it leads very quickly to ‘Judicial Activism’. When judgements move away from the strict role of interpreting law, they naturally get into guaging what’s best for society and what the law therefore ought to be. What the judges see for themselves as their role can be well highlighted by the following words of Justice Chandrachud in the Right to Privacy judgement.

“Hence, it would be an injustice both to the draftsmen of the Constitution as well as to the document which they sanctified to constrict its interpretation to an originalist interpretation. Today’s problems have to be adjudged by a vibrant application of constitutional doctrine and cannot be frozen by a vision suited to a radically different society.”

“Its continued relevance lies precisely in its ability to allow succeeding generations to apply the principles on which it has been founded to find innovative solutions to intractable problems of their times. In doing so, we must equally understand that our solutions must continuously undergo a process of re-engineering”

This approach therefore allows judges to arrive at ‘innovative solutions’ to problems of their times.

However, quite clearly, such an approach is not without the danger of the Judiciary overstepping into the domain of the legislative i.e. ‘Judicial Activism’.

Thomas Sowell, the renowned scholar highlights the following problems with judicial activism (in his seminal book ‘The Vision of the Anointed’)

  • Citizens need to rely on ‘the law of the land’ in their plans and actions, until the time the law is explicitly changed by new statutes and amendments. Judicial activism leaves citizens with a doubt about their understanding of the law, as it stands at a particular point in time.
  • Judicial activism leads to citizens discovering only after the fact that they are violating ‘evolving standards’ – which could be costly in many scenarios such as litigation.
  • Judicial activism allows judges to second-guess the decisions made within the boundaries of governmental power and allows them to call the decisions they dislike “unconstitutional”

One thing is certain – judicial activism, through the Living Constitutionalist approach, allows the judiciary to step into the domain of policy making.

Consider the following two examples.

In the Society for Unaided Private Schools of Rajasthan vs Union of India, the SC passed the following orders with regard to private schools.

“In our view, even the State Government(s), by resorting to the provision of the 2009 Act, must take opportunity to re-organise its financial outflow at the micro level by weeding out the non-performing or under- performing or non-compliance schools receiving grant-in- aid, so as to ensure that only such government funded schools, who fulfill the norms and standards, are allowed to continue, to achieve the object of the 2009 Act of not only providing free and compulsory education to the children in the neighbourhood school but also to provide quality education. Thus, there is a power in the 2009 Act coupled with the duty of the State to ensure that only such government funded schools, who fulfill the norms and standards, are allowed to continue with the object of providing free and compulsory education to the children in the neighbourhood school”

The Court literally made a policy/law which targeted closure of schools which did not adhere to some kind of a defined ‘standard’. At least at the time of this judgement, such an approach was not covered by any statute or law.

In the recent Rajesh Sharma vs The State Of Uttar Pradesh judgement, the Supreme Court, with the intention of preventing false arrests under IPC 498A, passed the following order.

“(a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.

(b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing.

…sections (c) to (j)….

(k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper”

The Court effectively ended up passing a new statute, containing 11 clauses, deciding how the enforcement of IPC 498A will be performed.

Problems of mixing interpretational styles

We have seen above the issues with mixing interpretational styles across judgements, which leads to inconsistency in case laws. However, in some cases, when different interpretational styles are used together in the same judgement, the results can be even more drastic.

Consider the following example.

In the Society For Un-Aided Private Schools Of Rajasthan vs U.O.I, the bench adopted a Living Constitutionalist approach (especially leaning on the ethical interpretation approach) and declared that the RTE Act was applicable for private non-minority schools.

“If education is an activity which is charitable, could the unaided non-minority educational institution contend that the intake of 25% children belonging to weaker section and disadvantaged group only in class I as provided for in Section 12(1)(c) would constitute violation of Article 19(1)(g)? Would such a provision not be saved by the principle of reasonable restriction imposed in the interest of the general public in Article 19(6) of the Constitution?”

By declaring running of schools as charity, for Hindu run institutions, the Court concluded that reserving 25% seats is not a reasonable restriction on them.

However, in the very same judgement, the bench used a more Textual approach of interpretation to decide on the exact same issue for minority schools.

“The right established by Article 30(1) is a fundamental right declared in terms absolute unlike the freedoms guaranteed by Article 19 which is subject to reasonable restrictions. Article 30(1) is intended to be a real right for the protection of the minorities in the matter of setting up educational institutions of their own choice………

…………

Applying the above test in the case of Rev. Sidhajbhai Sabhai v. State of Bombay [1963] SCR 837, this Court held the rule authorizing reservation of seats and the threat of
withdrawal of recognition under the impugned rule to be violative of Article 30(1)”

In this case, the guarantees given by the words of Article 30(1) over-rode any charitable considerations.

Thus, a mix of interpretational styles can lead to orthogonal conclusions even within the same judgement.

Conclusion

Constitutional interpretation styles offer a variety of approaches to judges in deciding cases. Indian judiciary is increasingly moving away from a textual interpretation approach even though our Constitution allows itself to be modified (by the legislature) and thus is amenable to reshaping itself to meet challenges of an evolving society. A Living Constitutionalist approach is very helpful in ‘judicial activism’. However, it comes with its own set of challenges such as inconsistency of case law and dilution of the concept of ‘separation of powers’

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.