Disaffirming action

A recent judgement by the Supreme Court of India denies the underprivileged equal access to education

Appropriate: take possession of; take to oneself, especially without authority (Concise Oxford Dictionary).

In a judgement delivered three days before Independence Day, 2005, in the case of Inamdar and Ors vs. State
of Maharashtra and Ors
(Case No. Appeal (civil) 5041 of 2005), the seven-judge constitution bench of the Supreme Court of India frequently used the word appropriation (by the State). The word was used each time to denote the role of the State in allotting quotas for reservation of seats in educational institutions. It said, "Our answer to the first question is that neither the policy of reservation can be enforced by the State nor any quota or percentage of admissions can be carved out to be appropriated by the State in a minority or non-minority unaided educational institution".

The Supreme Court judgement reduced the role of the State to an ‘appropriationist’ when it comes to imposing any quota of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes (add Physically Handicapped and Ex-Servicemen). The natural outcome of this judgement was a raging controversy between the Supreme Court and Parliament. Members of Parliament cutting across party lines unequivocally criticised the judgement which pronounced that the State cannot impose any reservations in the case of private unaided educational institutions whether minority or non-minority establishments. The criticism evoked a sharp reaction from the Chief Justice of India on the parliamentarians’ response during a case related to reservations for Dalit Christians.

At the root of the controversy lies the issue of the government’s role in ensuring education to all, whether the educational institutions are run by government or by private parties, whether aided or unaided. The Inamdar judgement will go into the annals of judicial history as one more judgement against the interests of the poor, the weak, the marginalised and the discriminated. The Inamdar judgement will join the pantheon of judgements such as Champakam Dorairajan vs. State of Madras whence the then Law Minister of India, Dr. BR Ambedkar piloted the first ever amendment to the Constitution in 1951. The amendment necessitated the introduction of Clause 4 in Article 15 of the Indian Constitution. Article 15(4) provides a blanket provision that nothing shall prevent the State from making any special provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. Article 15(4), not originally contained in Article 15 as originally enacted, was inserted by the Constitution (First Amendment) Act, 1951 following the decision in the Champakam Dorairajan case, which set aside reservation of seats in educational institutions on the basis of caste and community. Years later, the Indra Sawhney case of 1992 set aside the protection of SC and ST interests by abolishing reservation in promotions wherein it was held that reservation should be confined to the initial appointment and cannot be extended in matters of promotion. This resulted in the 77th Amendment to the Constitution, which restored the provisions.

Post-Mandal judicial pronouncements have adversely affected the interests of Scheduled Castes and Scheduled Tribes in the civil services. In 2000, Clause 4(B) was inserted into Article 16 by the 81st Amendment to the Constitution, again to neutralise the Indra Sawhney judgement on the issue of filling up of backlog vacancies. In the year 2001, Article 16(4)(A) was amended by virtue of the 85th Amendment to provide consequential seniority in promotions to the Scheduled Castes and Scheduled Tribes which they had lost as a result of the Ajit Singh Janjua case. Article 335 was amended by the 82nd Amendment in the year 2000 to provide for relaxation of standards in the matter of promotions. Few judgements, such as that in the RK Sabharwal case, still affect recruitment through reservation. The judgement in the Inamdar case is only the latest among a plethora of judgements that have seriously affected the interests of Scheduled Castes, Scheduled Tribes and Other Backward Classes, precluding the enjoyment of their rights as provided by the Constitution.

The Inamdar case judgement of 2005 was a logical continuation of the TMA Pai Foundation case on the issue of admissions and administration in minority educational institutions. Interestingly, the Constitution makes special provisions for the minorities under Article 30, to establish and administer their educational institutions. In the Inamdar judgement, the Supreme Court extends the protection awarded to minority institutions to non-minority institutions as well. This is a significant departure in jurisprudence whereby unaided minority institutions have been equated with unaided non-minority institutions. The judgement extends the rights available under Article 19(1)(g) to "practice any profession or to carry on any occupation, trade or business", to non-minority institutions. In the judgement, under the sub-heading Backdrop, education was described as an occupation:

"BACKDROP: Education used to be charity or philanthropy in good old times. Gradually it became an ‘occupation’. Some of the judicial dicta go on to hold it as an ‘industry’. Whether to receive education is a fundamental right or not has been debated for quite some time. But it is settled that establishing and administering of an educational institution for imparting knowledge to the students is an occupation protected by Article 19(1)(g) and additionally by Article 26(a), if there is no element of profit generation. As of now, imparting education has come to be a means of livelihood for some professionals and a mission in life for some altruists".

The judgement also mentions that the State cannot ‘appropriate’ seats to provide them to reserved categories that are given admission with lower marks. "So far as appropriation of quota by the State and enforcement of its reservation policy is concerned, we do not see much difference between non-minority and minority unaided educational institutions. We find great force in the submission made on behalf of the petitioners that the States have no power to insist on seat sharing in the unaided private professional educational institutions by fixing a quota of seats between the management and the State. The State cannot insist on private educational institutions, which receive no aid from the State, to implement State policy on reservation for granting admission on lesser percentage of marks, i.e. on any criterion except merit".

Having completely marginalised the State’s role in these institutions solely on the basis that they are not aided by the State, the latter part of the judgement says that "Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions. Such appropriation of seats can also not be held to be a regulatory measure in the interest of minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution".

The serious implications of the judgement are that the natural powers available to the State under Article 19(6) to impose reasonable restrictions have been abrogated. That means imposing principles of social justice on the admission process and quota in such institutions cannot now be deemed as a reasonable restriction. This judgement has far-reaching consequences even on the issue of reservations in the private sector where the provision of equal employment opportunities in the private sector could be imposed as a reasonable restriction through Article 19(6) in all trade, business and occupations in the private sector under Article 19(1)(g).

More than the issue of whether there should be reservation in unaided private educational institutions, it is this part of the judgement that blocks the State from imposing any reasonable restriction for any purpose as deemed fit by the State. This has largely curtailed the powers of the State in using Article 19(6). This has to be taken into primary and serious consideration by the polity and Parliament while considering any amendments to the Constitution. Otherwise the juggernaut of globalisation and privatisation of education can also take protection from the lack of reasonable restrictions through Article 19(6).

Societies across the world where traditions of discrimination were widespread and deep have tried to grapple with them as their civilisations evolved. Countries like the United States of America with age-old racial discrimination and South Africa with minority-run discriminatory practices during apartheid have tried to effect changes in their social reality by ensuring that access to education was and is one of the primary rights. Interestingly, the USA has a history of judicial interventions to ensure this at critical stages. These have dealt with the issue of admissions. From the famous Brown vs. Board of Education case of 1954 right up to the Grutter vs. Bollinger case, 2003 (concerning the Michigan University Law School) there are several excellent examples of such judicial interventionism that India should be watching closely.

The Brown judgement delivered by the US Supreme Court was a landmark judgement that remains a milestone in the history of that country. Through this judicial pronouncement, segregation in public schools was held to be unconstitutional by the court in 1954. This was just three years after the Supreme Court of India pronounced its judgement in the case of Champakam Dorairajan vs. State of Madras in 1951, occasioning the first constitutional amendment in India. The irony lies in that India boasts no judicial verdict comparable to the Brown vs. Board of Education judgement of the US Supreme Court. In the same month – August 2005 – that our apex court delivered its verdict disempowering the Indian State from ensuring affirmative action for the underprivileged, the USA commemorated 50 years since the judgement in the Brown case. Celebrations included a commemorative postage stamp released in Kansas on August 30.

The 1954 United States Supreme Court decision in Oliver L. Brown et al vs. The Board of Education of Topeka (KS) et al is among the most significant judicial turning points in the development of that country. It dismantled the legal basis for racial segregation in schools and other public facilities. By declaring that the discriminatory nature of racial segregation "violates the 14th amendment to the US Constitution, which guarantees all citizens equal protection of the laws", Brown vs. Board of Education laid the foundation for shaping future national and international policies regarding human rights.

Brown vs. Board of Education was not simply about children and education. The laws and policies struck down by the US Supreme Court decision were products of the human tendencies to prejudge, discriminate against and stereotype other people by their ethnic, religious, physical, or cultural characteristics. Ending this behaviour as a lawful practice caused far-reaching social and ideological implications that continue to be felt throughout the USA.

One must remember that the Civil Rights Movement of the 1960s led by Martin Luther King Jr. and others happened subsequent to the Brown judgement. The Brown verdict inspired and galvanised human rights struggles across the United States. It is little wonder that the USA celebrates it. The judgement initiated educational and social reform throughout the United States and was a catalyst in launching the modern Civil Rights Movement. Bringing about change in the years since the Brown case continues to be difficult. But the Brown vs. Board of Education victory brought USA one step closer to living up to its democratic ideals.

The US Supreme Court decision in Brown began a critical chapter in the maturation of their democracy. For the underprivileged Blacks, it reaffirmed the sovereign power of the people of the United States in the protection of their natural rights from arbitrary limits and restrictions imposed by State and local governments. These rights are recognised in the Declaration of Independence and guaranteed by the US Constitution.

But in societies that are ravaged by social inequities, the victory and the goodwill of such judgements have had to withstand the times to come. The United States has its own history of judicial interventions at crucial stages from issues related to admissions in educational institutions to equal employment opportunity laws. After almost 50 years of the Brown judgement, the issue of admissions came up in a big way to the Supreme Court in 2003 in the case of Grutter vs. Bollinger and Gratz vs. Bollinger in the Michigan University Law School admission case.

Two White women were at the centre of the University of Michigan case. Jennifer Gratz was a top high school student in suburban Detroit in 1995 when Michigan rejected her application. Barbara Grutter, a 49-year-old mother of two, ran her own consulting business. Michigan’s prestigious law school rejected her application in 1997.

The university acknowledges it has used race as a factor in admissions, relying on a complicated point scale to rate applicants. Grades and academics are most important, but members of "under-represented" racial and ethic minority groups have received extra points, as well as a few other groups, children of alumni, athletes and men enrolling in nursing programmes. Gratz’s lawyers called the points granted for race a "super bonus", and opposed that system.

The school’s undergraduate programme admissions comprised of nine per cent African-Americans, Hispanics six per cent, and Native Americans about two per cent. The University of Michigan admission policy had been in place more than a decade by then.

The court ruled that the law school’s affirmative action policy, which considers race as a factor in admissions but does not assign specific weight to it, does not violate the equal protections clause of the 14th Amendment of the US Constitution. Justice O’Connor, who wrote the majority opinion, said the Constitution (of USA) "does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body". The court agreed with the university’s arguments that the law school policy "promotes ‘cross-racial understanding’, helps to break down racial stereotypes, and ‘enables [students] to better understand persons of different races’".

Interestingly, in the United States there is no fixed quota of reservation available to the underprivileged classes which are called minorities and who are African Americans, Hispanics, Asians and Native Americans. Most of the educational institutions, such as public schools, colleges and universities, are run by private management and are not aided by the State. The Brown judgement of 1954 and the Michigan University judgement of 2003 are applicable on all these unaided private institutions as well as those universities and colleges that are supported by State funding.

The courts of a capitalistic country like the USA, notwithstanding President George Bush’s anti-affirmative action affidavit of 2003, delivered a judgement in the Michigan University case that sustained access to education. In unfortunate contrast, the judgement in the Inamdar case blocks Indian State intervention providing for the underprivileged classes to enter so-called privately managed institutions. This case comparison throws new light on the role of crucial judicial interventions in the evolution of those democracies that strive to provide equity in access to education. Today the underprivileged Dalits, tribes and backward classes of this country await a decision from the Supreme Court that would instead give cause for celebration.
Archived from Communalism Combat,October 2005 Year 12    No.111, Dalit Drishti 1





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