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.
Before proceeding further with this article, it would be better if the following two articles are read, and their context understood.
- The initial version of Article 30(1) proposed by one of the key members of the Constituent Assembly Experts Committee
- 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.
- The Article must completely drop the benefit for religious minorities
- 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”
Two very important conclusions can be drawn from these proposed amendments, and the responses of the Drafting Committee to these amendments.
- 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.
- 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.
- 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
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”
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!
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.
- The Framing of India’s Constitution – A Study: B Shiva Rao and Others
- Pilgrimage to Freedom – Vol 1 – K M Munshi
(Reproduced as-is from https://medium.com/@pranasutra/core2-need-for-equitable-distribution-of-public-goods-f4d1d576e7d)
Among the many fallacies of the #IOI regime in India, the second most important issue that #TeamCore is concerned about is that of (un)equitable distribution of public goods and resources. In the #Core hierarchy, therefore, this issue is termed #Core2 (#Core1 refers to discrimination with regard to Educational Rights).
A crisp, and to the point, definition of #Core2 is given by @realitycheckind in his blog, which I reproduce below
Sectarian Purse: No 2 on Core Right is to preserve the secular nature of the public purse if you are to function as a coherent whole. The issue oddly, is not that the state spends on minority only issues like Haj where only minorities have an interest but on public goods like scholarships, schools, public works (MSDP), loans, etc. Areas where everyone has aspirations and interest. This is not to take away minority scholarships but to absorb the part into the whole. The idea is to have common public goods and ensure equitable distribution within the program. Not to run separate programs.
In this post, I am attempting to elaborate a little more on why the current, favorite, method of distributing public goods is flawed, and why there is a pressing need to implement #Core2.
The nature of ‘Benefit Programs’
When any Government intends to distribute a public good, there are 3 high level attributes of the benefit program or ‘scheme’ that is devised.
- Public good/resource
- Distribution criteria & methodology
While there could be programs that could cater to a specific segment or class of people, such as say a program to perform eye surgeries for blind people, or say funding artificial limbs for those military personnel or police personnel who lost their legs on duty — the programs that are of concern to us in this post are those in which the goods being distributed are necessarily public — commonly applicable — in nature.
To borrow the words of @realitycheckind again
“…. public goods like scholarships, schools, public works (MSDP), loans, etc. Areas where everyone has aspirations and interest.”
So these goods are the ones which every individual citizen aspires for — resources which if one obtains — he or she can carve out a better future for oneself. The list includes scholarships, infrastructure like roads, highways, lighting, power, financial support for business, hospital facilities and so on. In a sense, all citizens have an equal Right over these public goods.
At the same time, one unfortunate reality of these public goods are that they are NOT infinite. In almost every society, scarcity of resources is an unavoidable reality. In fact, the fundamental business of an economy is to manage the scarcity of resources in the most efficient manner!
Given this reality of resources being scarce — two key questions open up when setting up a benefit scheme:
- Who qualifies to benefit?
- On what basis does one lose?
#IOI approach of distribution
In the #IOI approach, both the questions — who gets the benefit — and who doesn’t — get answered at the first stage of allocation of the resource itself. This mindset translates to creation of specific ‘schemes’ for targeted communities even if the resource is public in nature.
A higher level ‘identity’ — for e.g. religion, caste or gender — is typically used as the highest level filter in the #IOI approach. Let’s call this the ‘Identity Based Filter’.
So, for e.g, the Government of India can come with a scheme for ‘Post Matric Scholarships for Minority Students’. Even before the exact nature of the resource is identified, the beneficiary list gets finalised — only those students belonging to minority communities can get the scholarships — and all students who belong to the majority community stand disqualified.
I purposely say that the filtering of beneficiaries happens before the exact resource is identified because in the very same scheme, the nature of the goods being distributed can be varied and it will have no effect on who qualifies (or doesn’t qualify). Today the scholarships could be actual money being handed over to the students. Tomorrow the scheme can be changed to a ‘fee waiver’. We can then have a fee/books/uniform voucher system on the third day. Irrespective of the actual good, the beneficiaries are pre-decided.
A significant feature of the #IOI model is that the ‘Identity based filter’ has no connection, whatsoever, with the public-good being distributed!!
Let us say the Government comes up with a scheme to provide street lights in localities where at least 50% of residents are retired military personnel. It does not matter if you live in a poor locality where roads are in bad condition and completely unlit — you will not get the benefit if your locality does not have 50% military retirees — a factor completely unconnected with the need for the resource (street lights).
Once this high level filtering has been done, the scheme itself typically has several secondary ‘elimination filters’ which further decide who amongst the qualifying set of people actually get the resource. By its very nature, these ‘elimination filters’ are connected with the goods/resources. For e.g. in the same hypothetical ‘street light’ scheme, there could be further conditions imposed to determine who do not get the benefit — say those streets which have at least 4 lights already— or those streets in which at least half the households have UPS connections — and so on.
Thus in the IOI approach, the ‘Identity Based Filter’ is applied during allocation and the ‘Elimination Filter’ is applied during distribution.
#Core2 approach of distribution
In contrast with the #IOI approach — the two questions of who gets the resource — and who doesn’t — get answered only in the resource distribution stage of the scheme. Due to this, the programs constructed under this approach are by design ‘public schemes’.
For e.g. a ‘Post Matric Scholarship Scheme for All Students’. To start with, all students stand a chance to derive the benefit of this scheme.
In the #Core2 approach too, there are two types of ‘filtering’ that is possible. But it is inevitably the ‘Elimination Filters’ that are applied first. Some filters corresponding to the scholarship example.
- Filter to identify the more needy — ‘All students who are in the Grade X or below do not qualify under this scheme’ — to ensure that the benefit is applicable to only post matric students
- Filter to identify those who already have the resource — ‘All students whose parents’ income exceeds 3 lakh rupees per year’ — these students have an alternate source (own parents) for the equivalent amount.
- Filter to identify repeat beneficiaries — ‘All students who already receive the benefit of another scholarship’ — to maximise the coverage of the beneficiaries
- Filter to identify the undeserving — ‘All students who do not score 50% or more in their exams’
Depending upon the particular scheme — many such elimination filters could be devised — but even a cursory look shows that each filter is intricately connected with the resource being distributed.
Even in #Core2 an ‘Identity based filter’ could be used secondarily. But this filter will only work to ensure the resources are distributed ‘pro-rata’ amongst the beneficiaries. This filter will act as a limiting filter rather than an eliminating filter.
So for e.g. in the scholarships example, in order to ensure that children of all religions get a fair chance at the scholarship, there could be quotas for each religion, based on the overall population numbers.
Again, using the same street-light-scheme example, there could be a quota that states how many unlit roads need to be lit-up within each district of a given state.
Thus, in #Core2, three main approaches stand-out
- Everyone who aspires for a resource has a chance to stake a claim
- The eliminating factors are exercised first and all of them necessarily relate to the resource being distributed
- A group or class identity could be used — but only as a limiting factor vis-a-vis other groups — and not as an eliminating factor
Contrast between #IOI and #Core2 approaches
Fairness: The very purpose of a ‘separate’ or ‘sectarian’ scheme is to show bias. It is to show favor to a particular group or class. The harvest expected could be electoral advantages, or even (unannounced) social transformation.
If a particular scheme does not carry any bias — for e.g — a separate scholarship scheme which gives the same amount as the general scheme and has a pro-rata budget — it is just a badly designed scheme! Or even worse, it is a scheme designed to fool the target community.
Hence a ‘normal’ #IOI scheme is inherently biased and discriminatory.
In contrast, the #Core2 scheme is naturally fair. The nature and unit of distribution of the resource HAS TO BE uniform for all beneficiaries. A general scheme in which a Hindu student will get twice the scholarship amount of a Christian student, for e.g, will simply not stand social or legal scrutiny. Hence fairness is automatically built-in.
Appeasement Opportunity: Sectarian schemes are very good instruments for appeasement of the target group. The budgetary requirements are much lesser than the general scheme — and the attention and scrutiny it is subject to — is far less. Further, since it is targeted at a particular group — it is natural for the beneficiary group to feel a sense of thankfulness towards those who devised the scheme.
If a sectarian scheme has a budget of say 200 crores and a general scheme of say 600 crores, it is far more easier to effect a 10% increase in the budget of the sectarian scheme as against a 10% hike in the general scheme budget. This coupled with the fact that the appeasement effect is higher, the chances of budget increases/relaxation of restrictions is much more likely in a sectarian scheme.
On the other hand, #Core2 schemes are that much more appeasement proof. Any additional benefit proposed to be added to the scheme will have to address all sections of the beneficiaries. The cost in terms of resource allocation and implementation is higher — which means there is bound to be more review and due-diligence. Naturally, this leads to better thought out changes to the scheme, and is therefore less prone to misuse (for appeasement).
Categorization: The big challenge in the #IOI approach is to determine the right ‘identity’ to create the sectarian schemes. Due to the complexity, and the amount of effort, involved in such exercises, only those identities which bring electoral advantages and/or hidden social transformation benefits are likely to be used. In India, this inevitably translates to religion, caste and gender based schemes.
There are many infrastructure schemes which have been launched in districts which have a minimum concentration of ‘minority religion’ citizens — programs like MSDP and sub-schemes under JNURM. However, the connect between religion and economic status is a very weak one.
Let us say, a survey was conducted amongst all construction labourers in urban India, it is very likely that a similar pattern with regard to economic status, lifestyle and access to infrastructure will emerge — irrespective of the religion of the labourer.
Or if a survey of less-educated migrant workers who are resident in a city for less than 5 years is conducted — their problems are likely to be similar to the ones that led to MSDP and other schemes — irrespective of their religion.
There is no end to the number and types of classification that can be done — to arrive at the same criteria — that will warrant a dedicated scheme. Hence creation of such schemes will ONLY be attempted when there is an electoral or hidden social transformation benefit.
#Core2 methodology has no such misuse potential.
Redistribution: In the #IOI approach, if there is a shortfall of beneficiaries under a particular category, the only way to still utilize the allocated resource is to relax the elimination criteria and grant the benefit to lesser deserving beneficiaries.
For e.g. if under our hypothetical street light scheme for military retirees, if the target was to cover 100 streets, each of which had less than 4 street lights already — but during execution it was determined that there are only 90 such streets — the remaining lights have to necessarily go to streets which have 4 or more street lights.
In contrast, the #Core2 approach tends itself to always favor the ‘most deserving’ beneficiaries. In the same example, if a particular district has fewer streets which pass the ‘less than 4 street lights’ criterion, the excess budget can simply be routed to another district where there are more such streets.
Resentment: Even if the beneficiaries of the generic and sectarian schemes are handed out the same type and amount of resource, the creation of a separate scheme is bound to cause huge resentment amongst those who fall under the general scheme.
Consider a mother who has two kids. She feeds one kid personally — holding the child on her lap — and spoon feeding it. On the other hand, she asks the second kid to help himself to a meal kept in the kitchen. Even though the same preparation is being consumed by both kids, it is a no-brainer that the second kid will resent such treatment, and in fact may develop hatred towards the sibling.
The #IOI approach is bound to cause social unrest in the long-run. Needless to say, the #Core2 approach, being fair and non-discriminatory, will lead to no such resentment.
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.
Also read this excellent analysis by RealityCheckIndia on the same issue.
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.
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  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.
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’