Rohith Vemula’s institutional murder has, once again focused on the discrimination and violence against Dalit-Bahujan scholars. in Indian institutions of higher education. The persistent demand for a Rohith Act has echoed in past months; here is the fleshed out version
Dilip Mandal , Consultant Editor of Sabranghindi interviews Supreme Court advocate Nitin Meshram, who is drafting a Model Act, on the proposed law that draws from the experiences of democracies to tackle the phenomenon of systemic discrimination
Nitin Meshram, Advocate, Supreme Court of India
What is this Act all about? Please give us an overview.
The Ambedkar Education and Equality Act, 2016 provides for establishment of Equal Education and a Mechanism of justiciable and enforceable Equality to citizens, residents, and persons living on Indian soil and to persons, who, though not living on Indian soil, but who are, nonetheless governed by the Indian Constitution and Laws.
It provides for the abolition of all the Educational Authorities including Schools, Colleges, Universities and Commissions established for Educational purposes and for re-construction and re-establishment of Educational Institutions and Authorities including Schools, Colleges, Universities and Commissions or Corporations or Agencies for Educational purposes on the principles of Equality and Equal opportunities with justice and freedom to all.
It further provides for a mechanism to annihilate caste and other forms of racial, ethnic, gender and other forms of discrimination in and out of Education and other walks of life through the mechanism of bringing notional change.
It ensures the separation of Departments of Education, Educational Administration and Departments of Examination and Results. It provides for offences in the field of Education (within Institutions) and offences related to Equality including the offences related to discrimination. It also provides for punishments.
It earmarks separate jurisdiction to the High Courts of the States and to the Supreme Court of India to try the offences relating to Education, Equality, and Discrimination prohibited by the Constitution and other humanitarian laws of the United Nations.
It sets out a Mechanism to establish an Egalitarian Social Order free from the notions of Caste, Race, and Gender, ethnic or national origin and provides for Morning Prayer, uniform, classroom, play ground, holidays and vacation etc.
The proposed Act makes provision for Merit Awards, Grants of Scholarship and Loans and outlines a separate baking system for Educational Institutions including the mandatory budgetary allocation to be made by the State through the Annual Financial Bill. It mandates special provisions for an Educational Hour during Parliamentary proceedings for both Union Parliament and State Legislatures.
It provides for Mechanisms of recruitment and conditions of service of teachers including University teachers and other teaching and non-teaching staff of such Institutions or Authorities. It provides for Establishment of Students’ Council and Regulation of their Election and voting rights including separate electorate for the students belonging to Scheduled Castes, Scheduled Tribes, and Other Backward Classes.
Significantly, it also provides for the definition and grounds of misconduct of a Judge (including the Chief Justice) liable for impeachment under Article 124 and 217 of the Constitution for misinterpretation or contrived interpretation or for the hostile judgement (to and for this Act).
Why are you calling this the Ambedkar Education and Equality Act, 2016?
It is well within the knowledge of all that the Baba Saheb Dr. Ambedkar is a symbol of knowledge. He lived as a student and died as student. His name is synonymous with Education and Educational Degrees. Apart from that, he is an architect of the Constitution of India, which provides for Establishment of Egalitarian Society based on the principles of Justice, Liberty, Equality, and Fraternity.
The dawn of Constitution (al) existence in India is considered as the beginning of revolution to achieve Justice, Liberty, Equality, and Fraternity. Therefore, the Constitution provides for Education and it does not only provide for Education up to primary education. There are provisions in the Constitution that provides for Child Education, Primary Education, Higher Education, Medical and Technical Education, Adult Education, Minority Education, Agricultural Education and scientific research, University Education, Reservation in Education, Cultural and Aesthetic Education, Maritime and Shipping Education and Special provisions for Education in the Tribal Districts enumerated in Sixth Schedule of the Constitution.
The Constitution has been given to us by Baba Saheb, Dr. Ambedkar. The proposed Act does not stop here but it enshrines the provision for establishments of Educational and Research Institutions not only by the Union Government and State Governments but also by people themselves. Therefore, the Constitution has given the right and power to the People of India to impart and administer Education and this right is not limited to the minorities alone.
There is another significant aspect of our Constitution that you would never find in any other Constitution; where the word “education” occurs more than fifty times in the text of the Constitution. This is unique to the Constitution of India and therefore, the mandate of the Constitution of India is “Education.”
There is another aspect: Babasaheb Dr Ambedkar was himself a great educationist. He founded the Peoples’ Education Society (PES) and established the Siddhartha College of Bombay. He also established the Milind College of Aurangabad which is imparting all kinds of education with hostel facilities and that is also considered bigger than many universities of modern day India. There are many colleges and hostels established by the PES and those are still functioning in various States. He established hostels in his early period and his wife Ramabai Ambedkar had to sell of her ornaments for maintenance of those hostels. Therefore, the contribution made by Baba Saheb Dr. Ambedkar in the field of education in his personal as well as social capacity is extraordinary. It has no match anywhere and besides, tens of thousands of million students perceive him as a role model.
But that is not the only reason for which I am calling this Act, an Ambedkar Education and Equality Act, 2016. The vast movement (and revolutionary upheaval) to claim Education for all including by the Scheduled Castes, Scheduled Tribes and Backward Classes of people was first initiated by Baba Saheb’s teacher, Mahatma Jyotiba Phoole and his wife Savitribai Phoole in 1948 from Poona. This was most successfully carried forward by Sahuji Maharaja, the King of the Princely State of Kolhapur by establishing several hundreds of educational Institutes including Ferguson College of Poona, And, it is that legacy that was ably inherited by Baba Saheb – Dr. Ambedkar.
Therefore, what you see today in the form of a highly evolved and conscious state of education in India is because of this historical movement against structural inequality, of which Ambedkar has become the symbol in modern day 20th and 21st centuries. This, then, is the most important reason for calling this Act, an Ambedkar Education Act. There are other reasons: Baba Saheb Dr. Ambedkar had a number of Educational Degrees, which cannot be easily remembered. He had an excellent education from the top universities of the world including Columbia University of New York and the sea of literature he left behind him is still guiding in various disciplines. It has itself become a curriculum in itself that is being taught in many universities.
What is the need to have an exclusive act for educational institutions? Why is the present legal framework, in your view, inadequate?
The mandate of the Constitution is higher and specialised quality Education for all without any hindrance or discrimination. However, we do not have an Act passed by the Parliament or State Legislature to regulate and ensure that such Education, as envisaged by the Constitution, actually becomes available.
What we have today are Acts establishing Universities, University Grants Commission Acts 1956, National Council for Teachers Education Act, 1993 and Right to Education Act 2009. All these Acts — except to some, limited extent the RTE Act, 2009 — do not provide for the administration of Education but all of them provide for the establishments and administration of institutions of education.
All University Acts passed by the Parliament or the Legislature lack the mandatory and essential provisions for a mechanism for setting up of a uniform curriculum of education in consonance with Constitutional provisions. They do not have provisions laying down what substance that shall constitute education and its curriculum and what shall not.
There are CBSE, ICSE and State Boards for setting up the syllabus but most of them are being guided by discretion and are working under both political and caste influence. These boards are not at all accountable because the respective Acts under which they have been constituted lack that mechanism. They are not independent, impartial, accountable and guided by professional excellence.
There is an another lacuna is that these Acts do not provide for definition of education which can be considered to be in consonance with the spirit of Constitution, mechanism of entry of students and teachers in the Educational institutions, their rights, duties and moral obligations, mechanism for contravention of rights, duties and moral and legal obligation, offences and punishments. The existing mechanism does not provide for enforceable and guiding principles of classroom teaching, teachers’ and students’ behaviour, classroom sitting, uniform, right to admission to hostels, round the clock access to library, sitting arrangements of the class room without gender or caste discrimination, mechanism of timely distribution of scholarship and fixing responsibility and provision of punishment for contravention of it.
It does not provide for mandatory banking accounts and banking system for students and teachers. It lacks the mechanism and enforceable non discriminatory Right to enforce the academic test of Interview(s). Therefore, everything within the field of Education is left to be decided by the discretion of the man (in positions of power) who cannot be held responsible and punished for any malpractices, anti Cconstitutional, anti Institutional activities.
We do not have a mechanism to ensure that education shall be imparted without the influence of this particular man or the government. We do not have separate commission for appointment of teachers and therefore, it is teachers who are appointing teachers. We do not have s clear definition available as to what constitutes, academic prejudice(s), academic offence(s) and academic malpractice(s) and therefore, we do not have offences and punishments thereof.
We do not even have a mechanism for providing a regulation of fees, providing fee structure(s), infrastructure, staff room strength, regulation on misleading advertisements by private educational institutions. The Mechanism to check poor quality education is also missing. Provisions of Health Centres and Doctors with medical aid in Educational Institutions are nowhere provided for. All these critical factors, are, at present are guided by the mere discretion of the government.
There is no separate jurisdiction of Courts to deal with academic matters by specially qualified judges and therefore, what you see today are judgments rendered by the Judges, which have ruined the state of education (with some exceptions). We do not have provisions for election to Academic or Students Council and therefore, we do not have an established mechanism of a students’ council. Also, nowhere are the powers and rights of the students’ council(s) provided for and protected.
Here too, I feel that the area is regulated by unbridled discretion. Therefore to implement the scheme of Education provided by the Constitution we need a Comprehensive Mechanism to Administer Education. We have mechanisms to administer the Institutions of education but we do not have the Mechanism to administer Education itself and that is the lacuna.
You might have noticed that the catchword (slogans/mottos) of almost all Institutions of Education are in Sanskrit which is a prejudice or a bias towards the Treasure of Wisdom contained in other languages. Should not one wonder or ask, whether, this exclusion of a vast majority –barring very few students and teachers, many of whom do not even know the clear meaning of those slogans– is fair? Sanskrit is no more in existence as a language of the people (though historically too, it was never really a language of people).
One of the aims of the National Policy Education of 1968 and 1986 was to revive the Sanskrit language. I would reiterate that we don’t have a Mechanism to enforce the Right to Education, which is equal, universal, impartial, independent and free from prejudices, bias and the particular temperament and which has quality and potential to excel in life.
Therefore we need altogether new and different Ambedkar Education Act, 2016 to Administer Education in line with Constitutional principles and values and on the lines of the International Covenant on Economic, Social and Cultural Rights, 1966 and other such covenants of United Nations.
What is the global experience of discrimination in education and remedies provided?
Experiences from United Kingdom:
I have now studied, in depth, the experiences of the United Kingdom and the United States of America’s, in and around their Policies of Education. They have Special Acts dealing with the discrimination in education. The United Kingdom has the Equality Act, 2010 and very interestingly, it provides the measures of non-discrimination on the basis of race, gender, ethnic or national origin. It provides for prohibited conduct in chapter 2 of Part 2 and defines Direct Discrimination in Section 13 and Indirect Discrimination in Section 19 and part 6 of the Act regulates the Equality and prohibition of discrimination in Schools and higher education. Some of the instances of prohibited discrimination are as follows:
· In class discussions, black pupils are never called on and the teacher makes it clear that she is not interested in their views.
· Girls are not allowed to do design technology or boys are discouraged from doing food technology. This is not intrinsic to the curriculum itself but to the way in which education is made available to pupils.
· The girls’ cricket team are not allowed equal access to the cricket nets, or the boys’ hockey team is given far better resources than the girls’ team. This would be less favourable delivery of education rather than to do with
the sports curriculum per se.
The Equality Act thus provides for judicial review or proceedings in tort.
Experiences from the United States of America:
The Unites States is notoriously infamous for its practices of discrimination in education. On May 18, 1896, the US Supreme Court held “Separate but equal” (Homer A. Plessy v. John H. Ferguson, citation: 163 U. S. 537) which was overturned by it on May 17, 1954 in Oliver Brown, et al v. Board of Education of Topeka, et al. (347 U. S. 483) and held establishing separate public schools for black and white students to be unconstitutional.
Thereafter, the US has travelled a long way, particularly in the filed of educational equality and this journey has been made mainly possible through the judicial intervention. It has enacted Equal Educational Opportunities Act, 1974 (Federal Legislation) and the Supreme Court has handed out several judgments prohibiting discrimination on the basis of race and other factors of discrimination in education.
The experience of the implementation of the EEOA is not encouraging because of its vague language and therefore the concept of equal opportunities has been evolved by judicial verdicts. The aggrieved can move the court with an appropriate suit or the department of justice can initiate suo-moto proceedings.
I am currently reviewing the system of other or alternative forms of non-discriminatory mechanisms of education adopted by South Africa, Canada, and other European countries.
To better understand the US challenge of equal education, this paragraph is imported from that reads as under:
The challenge of ensuring educational equity is formidable. Our country’s international competitors are improving faster than we are educationally, and many are having greater success in closing achievement gaps—which remain stubbornly wide in the United States. Structural barriers, including inequitable funding systems, impede our progress. While one might expect schools in low-income communities to receive extra resources, the reverse is often true; a Department of Education study found that 45 percent of high-poverty schools received less state and local funding than was typical for other schools in their district.
We also know that traditionally underserved students, including minorities and low-income students, attend and complete college at far lower rates than their peers. These students are suspended, expelled, and drop out at higher rates, and are less likely to have access to strong teachers and challenging curricula. As just one striking example, a recent study of the Advanced Placement exam in computer science found that in 11 states, no African-American students took the exam; in eight states, no Hispanic students participated. Recognizing these disparities, the Obama Administration is committed to advancing equity in education. That commitment underlies nearly every significant activity for the U.S. Department of Education. We’re motivated in this work because we recognize the power of education to transform lives.
When should we expect that the model act would be ready? What is your plan to propagate it?
I am expecting that the Ambedkar Education and Equality Act, 2016 (in Bill form) would be ready by July 26, 2016 and it would be propagated throughout the country by organizing at least two seminars in 10 major states including five major cities, Bombay, Bangalore, Calcutta Delhi, and Madras.
I alone would be not capable to organise all these seminars and therefore, would request and appeal to all stakeholders to take part and play a role.