Report No. 123
Has a Case for Change Been Made out?
2.1. The first question that must engage the attention of the Law Commission is whether any case is made out for setting up a specialist tribunal for dealing with disputes arising in the field of education. The answer to this question lies in ascertaining the nature of disputes and the technical know how necessary for their speedy, scientific and fair resolution. This aspect must be examined in the light of the fact whether a mere legalistic approach disclosed in law courts would be adequate to bring about a scientific, sensible and just resolution of these disputes. Would a specialist tribunal be more competent than State courts to deal with this problem?
2.2. The Law Commission in its just preceding report1 has, while recommending setting up of Industrial Relations Commission at the Central and State level, given extensive and adequate reasons for setting up specialist tribunals. These reasons will, mutatis mutandis, support the approach in this report about setting up a specialist tribunal for problems in the field of education. It would be merely adding to the length of this report if all those reasons are reiterated here. One of the guiding considerations of the Law Commission is that such specialist tribunals are less formal, less technical, speedy and result-oriented. This is part of a significant social movement aimed at reforming the legal system.
Institutions such as the police, prisons, legal services, therapeutic and educational agencies have been given aid to expand their capacities, broaden services and develop new alternatives for coping with disputes.2 Whether all these actions actually lead to improvements remain problematic, as more often than not, the problems tackled are rooted in the structure of society while the solutions build up existing pillars of these structures.3 It is beyond controversy that the justice system has become too complex and unresponsive to meet community needs.
Efforts are being made in the directions of simplifying and streamlining court structures and procedures. However, there is another effort of vital importance of which a note must be taken. Attempt must be made to remove disputes from the court entirety by taking them to less formal, more responsive forums. The current movement for delegalisation, simplifying and informality has been directed at a wide variety of activities ranging from simplifying procedure to decentralisation of administration of justice.
1. LCI, 122nd Report.
2. Roman Tomasic and Malcolm M. Feeley Neighbourhood Justice, p. (ix).
3. Ibid., p. (ix).
2.3. It is, therefore, necessary to examine whether disputes arising in the flied of education are such as would necessitate specialist forum to be manned by people imbued and acquainted with the problems of education. The importance of education may be noticed by reference to a specialist report in this behalf. It says:
"Education has always been important but, perhaps, never more so in man's history than today. In a science-based world, education and research are crucial to the entire developmental process of a country, its welfare, progress and security. It has characteristic of a world permeated by science that in some essential ways the future shape of things is unpredictable. This emphasises all the more the need for an educational policy which contains a built in flexibility so that it can adjust to changing circumstances."1
1. Report of the Education Commission (Kothari Commission), 1966-Forwarding letter of Shri D.S. Kothari, dated June 29, 1966.
2.4. Consequent upon the report of the Kothari Commission, Government of India declared the national policy on education in 1968 which marked a significant step in the history of education in post-independent India. It aimed to promote national progress, a sense of common citizenship and culture and to strengthen national integration. It laid stress on the need for a radical reconstruction of the education system, to improve its quality at all stages, to give much greater attention to science and technology, the cultivation of moral values and a closer relation between education and the life of the people.1 Since the adoption of the 1968 policy, admittedly there has been a vast expansion in the education facilities in all branches of education all over the country.
In January 1985, Government of India announced that a new education policy would be formulated for the country. A country-wide debate ensued. After a careful study, National Policy on Education-1986 was announced in May 1986. It is founded on a national perception that education is essentially for all add this is fundamental to all-round development, material and spiritual. It was accepted that education has an acculturating role. It Refines sensitivities and perceptions that contribute to national cohesion, a scientific temper and independence of mind and spirit-thus furthering the goals of socialism, secularism and democracy enshrined in our Constitution.2
With this laudable aim in view, the policy deals with education at all levels. It is assumed that while implementing the new policy, basic changes will occur in management systems. The need to equip students with the ability to cope with them is felt. The policy covers education in early childhood, elementary education, secondary education, vocationalisation, higher education and setting up of rural universities. The policy aims at providing facilities for technical and management education. This comprehensive policy has also taken note of the management of education itself. The Central Advisory Board of Education has to play a pivotal role in a comprehensive developmental programme of education as outlined in the policy statement. The policy also envisages setting up of Indian Education Service as an all-India service. The policy envisages setting up of State Advisory Boards of education as also District Boards of Education.
1. National Policy on Education-1986, p. 1.
2. Ibid., p. 3.
2.5. Education was a topic in the State List at entry No. 11. By the Constitution (Forty-second Amendment) Act, 1976, the entry was deleted and 'Education' was inserted at entry No. 25 in the Concurrent List. During the interregnum between 1968 and 1986, there was a massive expansion of educational facilities throwing up numerous disputes in the field of education. Surprisingly, the National Policy on Education-1986 has not taken note of this phenomenal rise in disputes in the field of education and has not suggested any alternative to the existing mode of resolution of disputes in this behalf. The omission may not be accidental. It may. have been assumed that the change in the pattern of education would, by itself,,, be sufficient to eliminate the disputes. It is a consummation devoutly to be wished.
2.6. The expectations from the welfare State in the field of education as hereinabove set out, coupled with explosion of population, a keen and unquenched thirst for higher education, the slow pace of coming up of educational institutions commensurate with the demand for them and a highly competitive society, all combined to make entry in educational institutions from kindergarten to the top professional courses very-very competitive and not within the easy reach of everyone seeking the admission. This has provided a fruitful field for rising crescendo of disputes in this field.
2.7. There is another factor which accentuated the problem of which note must now be taken. Indian society was both feudal and hierarchical in character. At the lowest end of the spectrum were the Scheduled Castes and Scheduled Tribes, the victims of exploitation for thousands of years. Socially speaking, they lived in semi-slavish condition and had been denied entry both to services and educational institutions by the upper crust of the society. They were the victims of discrimination. Independent India cannot tolerate such a situation for a day. While undertaking to transform a feudal society into an egalitarian one, one of the limitations on State's power was that it shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
To dilute this constraint, sub-Article (4) of Article 15 conferred power on the State to enact laws or make special provisions for the advancement of any socially and educationally backward classes of citizens or for members of the Scheduled Castes and Scheduled Tribes. The power was thus conferred on the State to undertake affirmative action even if by measures, apparently discriminatory, for the advancement of members of Scheduled Castes and Scheduled Tribes and socially and educationally backward classes of citizens. Armed with this power, a number of States enacted laws or made special provisions for reservations of seats in favour of members of Scheduled Castes and Scheduled Tribes and socially and educationally backward classes of citizens.
This started a chain of litigation commencing from 1951 and down to 1985. What must be the percentage of reservation for different classes of people for whom it can be made within the parameters of Article 15(4) was a policy decision, the choices and options being covered by the availability of seats and the demand from members of Scheduled Castes and Scheduled Tribes and socially backward classes of citizens? Soon after the enforcement of the Constitution, State of Madras issued an order reserving seats for admission into medical colleges on communal lines.
The Supreme Court struck down the order as being violative of the fundamental rights and rejected the submission that the order is in implementation of the Directive Principles (.1 State Policy by observing that "the Chapter on Fundamental Rights is sacrosanct and not liable to be abridged by any Legislative or Executive Act or Order except to the extent provided in the appropriate article in Part III. The directive principles have to conform to and run as subsidiary to Chapter on Fundamental Rights".1 Numerous disputes on the question of reservation, both about the power to reserve, the class in whose favour the reservation was made and the percentage of reservation, landed in the courts. Only some may be referred to here just to give a glimpse of the nature of the controversy which would indicate the expertise required to deal with the same.
1. State of Madras v. Champakam Dorairajan, 1951 SCR 526.
2.8. The reservation in favour of Scheduled Castes and Scheduled Tribes more or less remained unquestioned. But when the State, in exercise of the power conferred by Articles 15(4) and 16(4), started making reservation in educational institutions and public services of seats in favour of socially and educationally backward classes of citizens, the challenge surfaced. Initial approach was to treat a caste label as an insignia of social and educational backwardness. This was questioned on the ground that caste alone cannot be the sole determining factor for determining the social and educational backwardness of the members of a particular caste. The court foresaw the danger in treating caste as the sole criterion of determining social and educational backwardness.1 A suggestion was also made that a 'means test' be also applied.
As the reservation in favour of a caste or a class would cut down the area of seats available on open merit competition the court suggested that the Government must strike a reasonable balance between the claims of the backward classes and the claims of others.2 Proceeding along this line of thinking while considering that the caste of a group of citizens may be a relevant circumstance in ascertaining their social backwardness, it cannot be the sole or dominant test in that behalf. Additionally the criterion of 'means test' can also be validly applied.3
Noting that the expression 'caste' is not used in Article 15(4) and contrasting it with the comprehensive expression employed therein, namely, 'socially and educationally backward classes of citizens', a view was expressed that the expression 'backward class' cannot be used as synonymous with 'backward caste' or 'backward community'. Realising that members of a caste may not be treated as backward class merely because they belong to a particular caste, it was pointed out that the members may, in the social, economic and educational scale of values at a given time, be backward and, therefore, are entitled to affirmative action.
The development of law on this line shook the proponents of canvassing caste alone as the basis for determining backwardness.4 Moving a little backward, a view was expressed that in India there are numerous castes which are socially and educationally backward and to ignore their existence is to ignore the realities of life.5 State of Andhra Pradesh prepared a list of backward classes, more or less employing the caste test. When challenged, the court found that the caste mark is merely a description of the group following the particular occupations or professions referred to by the Commission which drew up the list. Looking at the report, the court said that the caste remained the criterion for determining social and educational backwardness6.
The wheel moved the full circle when it was said that mere poverty cannot be a test for determining backwardness because in India, except for a small percentage of the population, the people are generally poor-some being more poor, others less poor. The 'means test' got shaken.7 An attempt to make reservation in favour of people coming from rural areas was held to be unconstitutional on the ground that it cannot be said as a general proposition that rural areas represent socially and educationally backward classes of citizens.8 The debate continued with unabated ferocity whether reservation on a caste label alone can stand the scrutiny of Article 15(4).
A realisation grew that the problem of determining who are socially and educationally backward classes is undoubtedly not simple. Chartering a central path which will keep not only the debate open and the inflow of disputes in the courts, it was observed that it may not be irrelevant to consider the cast of a group of citizens claiming to be socially and educationally backward.9 If total abolition of social and economic inequalities was to be aimed at, it has to be realised that social backwardness is not the cause but the consequence of economic backwardness. Even a man coming from castes which are generally designated as depressed classes, if he is economically well-placed, he would never suffer social backwardness. Therefore, elimination of economic inequality may be aimed at in translating the promise of Article 15(4) into action.10
1. M.R. Balaji v. State of Mysore, AIR 1963 SC 649.
2. T. Devadasam v. Union of India, AIR 1964 SC 179.
3. R. Chitralekha v. State of Madras, AIR 1964 SC 1823.
4. Triloki Nath v. State of Jammu & Kashmir, AIR 1961 SC 1.
5. A. Periakaruppan v. State of Tamil Nadu, AIR 1971 SC 2303.
6. State of Andhra Pradesh v. U.S.V. Balram, AIR 1972 SC 1375.
7. Janki Prasad Parimoo v. State of Jammu & Kashmir, AIR 1973 SC 930.
8. State of Uttar Pradesh v. Pradeep Tandon, AIR 1975 SC 563.
9. K.S. Jayasree v. State of Kerala, AIR 1976 SC 2381.
10. K.C. Vasanth Kumar v. State of Karnataka, AIR 1985 SC 1495.