It sounds ironical to talk of ‘ownership’ of the ‘state’. Traditionally, ownership and State belong to two different realms of law possessing distinct characters. The only common feature both of it has that they are regarded at least legal notions. The division and consequently inviolability of realms of public and private laws are consciously engendered notions. In a liberal democratic legal system a constant trade-off between the two continues mediated by the norms and the interests of the central organising institution of the 21st century, that is market. The immediate instigation for writing this post is caused by the recent judgement of the Supreme Court of India.
The judgement in the BCCI v. Cricket Association of Bihar did not cause a sincere rethinking or even a public debate (though it entailed few journalistic peace, see here and here) amongst public intellectuals and scholars of law on law, Constitution or idea of India. Perhaps the reason being that the Court did not lay down anything new which was not already said in its decision of 2005 again involving BCCI. The spirit in which these judicial pronouncements are received symbolise exclusive importance of procedural fairness than to the substance. The constitutional jurisprudence developed by lawyers/judges on this point has been essentially structured by the vestiges of analytical thinking and formalistic reasoning typical of a common law layer. The issue, I intend to offer some arguments about ultimately concerns the idea of India (interpretations of Art. 12 of the Constitution) which has constantly been renovated by piece meal juristic adventures (also misadventures) lacking utterly even a bare amount of consistency, predictability and certainty the greatest virtues for modern judicial process (Cardozo, 1921). The inescapable consequences of it, simultaneously, is lose and gain of the state. Whatever the paradoxes of such statement about law and state may be, this has become more or less, in the present state of our nation, an existential issue for lofty ideals of the Constitution, that the Indian academics must rise to and find some long lasting solutions. The concern does not, yet, ebb away at this. In the past over three decades the modern market has not seen anything that can stop or slow down its pace of conquest (Sandal, 2011). The modern state too is being lost and simultaneously taken over. Who is losing the state? Alternatively, who is gaining it? Consequently whose law it becomes that ‘we’ must respect when the state is battled for and is won and lost? These quarries seem, though, unusual relates to “ownership of the state”. Who owns the state or and ought to own the state?
A general survey of the juristic discourse on the constitutional provision over the last six decades shows emergence, acceptance and dominance of the following arguments in succession: Law and Justice argument, Efficiency/Convenience argument, and Rights/Autonomy argument. These arguments use, explicitly or implicitly, ‘sovereign function; welfare of people or public function; and free market, respectively, as legitimate, more or less exclusive objects towards which the system must progress. The enterprise, however, remains myopic in character and selective in its attention to constitutional provisions. For instance, neither the lawyers nor the judges have taken a call as to what impact entails for the idea of ‘state’ when they succeed in ascribing a particular content to a specific fundamental rights provision, legalise an economic policy or acquiesces in affecting one of the values mandated by the Constitution such as politically engendered process of shrinking of ‘state responsibility’.
Law and Justice Argument
Until 1970s the judicial reasoning on expounding the law under Art. 12, was dominated by requirements such as legal authority to make binding and enforce (do justice) law, and the power to take consequential actions. Any body and entity which were clothed with such power in law could be held to state or part of state. These characteristics are traditionally supposed to be essential functions of legislative and executive wings of the state. The textual rationale for this view were found in the choice and arrangement of Art. 12 terminologies. The common law way of articulation dubbed it as ‘sovereign function’. It is noteworthy that, except laws intended at land reforms, the state was neither minimalist nor had embraced the expansionist ambitions, characteristic of political dispensations of 1970s and 1980s. Though, it did control the heights of economy and its means and resources. The rights under part III had not received extended constructions by the Court. Sometime, rather, the Court belied the common understanding of them and stick to positivistic thinking. The directive of part IV did not occupy a large portion of judicial and political imagination. The resultant matrix of state, law and people did not and could not be seen effectuating a trade-off of the portions/responsibilities and rights of the state, the central claim of this post.
Efficiency or Convenience argument
The decades of 1970s and 80s are known for passionate affections that the nation’s political and judicial establishments developed for higher values of part IV of the Constitution, Arts. 38 and 39. This is also in reflection of developing world’s voice in the international forum for a new international economic order, sovereignty over natural resources etc. (It is also, though, not less important that International Covenants on socio-economic and cultural rights came into existence during this time). The rise of socialism rhetoric started from the democratic politics of the time (Guha, 2007) in which the Court found itself as equal upholder of the cause. The notion of sovereign function occupies a back seat and judicial soul was moved by the cries of hugely extended ‘public function’ which the state came to assume in pursuance to the new found responsibilities/cause. It was bound to pour in new content into the idea under Art. 12. The state took onto itself all sorts of responsibilities towards people consequently. See for example the following observation of Iyer J. (Som Praksh, 1981 para 32): “The constitutional philosophy of a democratic, socialist republic mandated to undertake a multitude of socio-economic operations inspired by Part IV and so we must envision the state entering the vast territory of industrial and commercial actively, completely or monopolistically, for ensuring the welfare of the people….Art. 12 is a special definition with a broader goal”. This line of juridical thinking started, on the idea of Indian state, with Mathew J. (Sukhdev, 1975 para 102) that the state is no longer merely coercive machinery but now is a ‘service state’. “… institutions engaged in matters of high public interest or performing public functions are by virtue of the nature of the functions performed….. Activities which are too fundamental to the society are by definition too important not to be considered government function” (Ibid). The following lines of Bhagwati J. (Airport, 1979 para 10) are instructive of the main thesis of the post, “[T]oday with tremendous expansion of welfare and social service functions, increasing control of material and economic resources and large scale assumption of industrial and commercial activities by the state, the power of the government to affect the rights of the people is steadily growing…”. What is intuitive to note that the increased functions and assumptions of incremental powers of ‘state’ went in corridors of the court as an acute warning inviting response of the Court in the form of “state agency of instrumentality theory”.
The efficiency and convenience argument came to rescue the state from the difficulties it would have faced in carrying out newly realised constitutional functions. Hence in the corporate personality/body, old contrivance in law, it found legitimacy as part of public law in 20th Century (Berley, 1932). “Although corporate personality is not modern invention, its adaptation to embrace the wide range of industry and commerce has a modern flavour. Welfare state like ours called upon to execute many economic projects readily resort to this resourceful legal contrivance because of its practical advantages…..”. Therefore, “[A] commercial undertaking may be better manages (by Govt.) with professional skills and on business principles, guided of course by social goals, if it were administered with commercial flexibility and clarity free from departmental rigidity, slow motion procedures, (redtapism) and hierarchy of officers (Iyer J. Som Prakash, para 21-22). The establishment of this legitimate way of doing ‘government’ had immense effect on large number of fundamental rights. In other words the Indian state incarnated itself into something, constitutional idea of India, (Baxi, 2013; Gallanter, 2002) which would have drastic consequences for the provisions of Part III. Naturally the Court was tempted to ready itself protecting rights by inventing the meagre means of ‘agency and instrumentality’, constricted by strict positivistic requirements conclusively articulated by Bhagwati, J. in Ajay Hasia, 1981 and recast in Pradeep, 2003.
Rights and Autonomy argument
The argument is susceptible to be misconstrued and has been so worked out by the Indian judiciary in the last nearly two decades, a proposition I will return to later. First, let’s have a brief survey what this argument has meant for the Govt. and the Court. It involves legitimate rights/responsibilities of the govt. and what the Court regards as legitimate rights of ‘individual citizens’. The interpretations of specific labour laws (Steel Authority, 2001; Umadevi, 2006) in the post liberalisation era similarly reconstitute the dynamics of relationship amongst govt., employer and the employees. The judicial decision involving economic policies (disinvestment-BALCO, management of natural resources- 2002; Spectrum, 2012; Coal, 2014) of the govt. of time leave enormous privileges with the later. In this post I will take up the fundamental right to education to argue the theme of this post.
In T M A Pai (2003, 11 judge bench, paras 20, 25) the Court enunciates that “[E]ven if there is any doubt about whether education is a profession or not, it does appear that education will fall within the meaning of the expression "occupation", Art. 19 (1) (g), … an activity of a person undertaken as a means of livelihood…”. The individual right and autonomy in business, in education, was finally categorically established in Inamdar (2005, 7 judge bench, paras 93-94), “[T]he right to establish an educational institution, for charity or for profit, being an occupation, is protected by Article 19(1) (g). Education, accepted as a useful activity, whether for charity or for profit, is an occupation.”
The decision in Unni Krishnan (1993, five jidges bench, para 63.) had ‘established’ that right to education is a fundamental right of ‘all citizens’ (Art. 21) and consequently individual citizens does not have a right to business or profit from education. The resulting idea of state and responsibility of government entailed were different.
However it is instructive to understand the reasoning of the majority judges in Pai (para 23) the way in which they overruled Unni. “While the conclusion (in Unni) that "occupation" comprehends the establishment of educational institutions is correct, the proviso in the aforesaid observation to the effect that this is so provided no recognition is sought from the State or affiliation from the concerned university is, erroneous,”(therefore, overruled). The Pai Court went on to say in a separate para containing only these words’ ‘In short, education is national wealth essential for the nation's progress and prosperity (para 93).’
The dichotomy of the right to occupation in education and chances to get affiliation or recognition was abolished and merged into one, right to education as occupation for profit. But the latter two Courts did something more, that educations is wealth and source of prosperity. By way of being custodian of the later of the two rights, govt. holds this wealth in the similar capacity as it holds other sources of prosperity and progress such as natural resources or right to grant contact, job, business, licence etc. a field of the policy of largess.
The constitutional responsibility of government to provide education (school or higher) comes to have limited meaning as there are numerous individuals (private) to share this burden!!
If it the rights and responsibilities of the state which gives it or attaches a particular identity and substance then that is lost and are on offer to be acquired largely on the principles that apply in modern market.
The individuals (private entrepreneurs) have a right to provide education for exchange of money though the right is regulated by the rules which regulate the distribution of governmental largess.
Though every citizen has right to education but it is similar to the civil right to buy a car or banglow, own a yacht, factory of socially and economically capable ones, the hand full of citizenry, and earn two breads every day or own a piece of cloth to cover the wretchedness by the less capable, the majority.
It has devastating consequences for other fundamental rights too. The right to equality substantially must draw its meaning from the principle of desert and what one has capacity to exchange for. The right to life (with dignity) continue to exist, strange, event though one may be forced to live in ignorance due to lack of capacity to pay for knowledge! The right against discrimination is reduced to hollow promises because dominant providers of education has a constitutional licence to discriminate primarily for money and secondly on all other grounds. Equal opportunity claim of the constitution gets halved proportionately.
Last but not the least, the transformation of ‘the right’ the Court has achieved reconstitutes the Common Law traditional arbitrary division of law into public and private laws. A portion of the ‘public’ of the state is sold to ‘private’ of the civil.
Govt. evinces a special attitude of reverence to the sacrosanct space of the entrepreneurs which should not be temper with bull of public law. Thus Central Education Institutions (reservation in Admission) Act, 2006 does not affect them. Even the Court does not question the enactment on the point as to haw public may be made private, thanks to the technicalities of the Common Law judicial process (Ashok Thakur, 2007).
Impact of Right on the Constitutional Idea of Indian State
The magnitudes of these judgements has not been mapped sufficiently by the academics of law, though, the impact has been felt writ at large by most of Indian populace gullibly without knowing the sources or causes of such consequences and also being unaware of them. The mainstream writings being structured by its own traditions, does not have capacity, rather opportunity to go beyond the semantic connotations of ‘state, rights, individual autonomy, nature of judicial reasoning, and ideals or so called legitimate claims of market. This is age of market triumphalism (Sandal, Ibid). However, we must avoid speculations and stick to contextual analysis of facts existent social and economic realities.
It is not surprising, in higher education, that the private ‘entrepreneurs’ found this opportunity most appropriate to do business in education and hence the proliferation and mushrooming of the private collages in last two decades. Prior to the triumph of market principle in the education, barring engineering and medical education that two were very few, rarely private institutions existed. On an average the amount required for securing the first course/degree is 6-10 lakhs for private colleges and schools, and in some privately controlled and run institution it may go up to well above 40 lakhs. It is doubtful how much proportion of the Indian population including middle class can conveniently have effective access to education on those principles. More or less education of kids (primary, secondary or senior secondary education) have come to be organised on similar basis.
There is something more about the march of the rules of private laws or norms of market that must not be lost sight of. The govt. itself, even, within the portion of public that is left with or it regards to itself has substantially moorings of private laws or norms. For instance, take the case of the institutions of the National Law Schools located in various State Capitals. Currently there are about 18 such schools each admitting only 80 students, charging fees between Rs. 5-6 lakhs for integrated 5 year LL.B. course. But the total cost goes up to Rs. 10 lakh. Excellent work some of them are able to do to which the traditional govt. institutions are, sometimes, no mach, yet the state they are located surely does not need, for example, only 80 good trained men. Intuitively the rise of such schools and the rise of market and market norms coincided in India, but more importantly the India Bar and Benches spearheaded the triumph in law education (unfortunately few academics too). Consider, however, the Gandhian principle that if the means are not appropriate (good), ‘sacrosanct ends’ cannot be achieved!
As a result two set of Educational Institutions exists governed by two diametrically opposite norms and rules: one by the concerns and ideals underpinning the so called public law and the other by pure norms of market invisible hands (for allocation and distribution).
A unique point of law, in general, can be easily deciphered, out of this whole process of transformation. Law does not, more often, express ‘common sense’. It is nonsense. Law is an ass (Dickens, 1838). The ‘educational enterprises’ are open for all on principles of Art. 15 (2) (again an epitome of public-private dichotomy in so far it talks of access only and not access on the basis of equal opportunity or kind/quality of law). The institutions which are allowed to ‘extort’ up to Rs. 1 million and in some cases higher than Rs. 4 million for securing education of first degree course, too repose faith is the said principle of access. Neither the lower class nor the so called middle class (a capitalist’ way of articulation) can arrogate to itself any meaning of that ‘access’. The upper class does include judges of higher courts, senior bureaucrats (such as secretaries) etc. apart from the big business. Even the first two cannot, living a life of honesty, practically avail such education for their children given the lawful sources of their income. On the other hand the govt. cannot accept that these institutions are meant, really, only for children coming from the business parents. It is an accepted truism about human nature that parents care for children, bring them up in an environment of love and warmth, even make spontaneous sacrifices and therefore tempted to provide all good facilities available in the society. And of course ‘good’ education is the prime one. Is the law asking them all to become corrupt? This line of arguments inescapably lead to attributing to the law ‘immoral motives’ hence we must stop. But in order that one is not tempted to do similar speculations of the real purpose and motive of law, necessarily has to subscribe and entertain to oneself a ‘bad faith’ (Sartre, 1993) that she has access.
Ownership of the State Lost and Gained
It is possible to look at the transformation of fundamental right to education (Unni) to Fundamental right to education as an occupation for profit (Pai, Inamdar) at least from following four pints though all intimately concerned with other entailing shifts to or ownership of the state by different minority groups from the citizenry.
Firstly, the government of a time is no more surety of once believed sacrosanct rights but merely a source of state largess (Reich, 1962). This view is preconditioned by huge shifts in the notion of public function and state’s constitutional responsibility towards people in general. It happens when a public good becomes an object matter of private rights and privileges, exercisable due to their nature by select few.
Second, till the public good of education is seen entailing huge responsibility on the state in the form of public function, right to education necessarily implies a right to specific service from the state to all. This is in line with the natural purpose of things as natural resources traditionally existed in India (Chhatrapati Singh, 1987). However the market has an inherent tendency to view such benefits, services or entitlements as ‘thing’ or object de-horse their social and natural function. For example, the notion of property till recently only referred to certain right in the thing or object and not the thing itself (Macpherson, 1978). Hence commodification of the said right (to education) is a precondition that the norms of market must become applicable. The modern Indian state (CEI Act, 2006) and the Supreme Court (Pai, Inamdar and Ashok) did more than it.
Third, the notion of individual autonomy, the life blood on which market survives and flourishes gets articulated in a very narrow and negative sense. It’s a autonomy of predators (state being one of them, often) to lure and hunt countless preys.
Fourth, efficiency and convenience argument of 1970s are recast serving interests and conducive of the private rights and privileges.
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Posted By: Chanchal Kumar Singh, Asst. Professor, Faculty of Law, University of Delhi. India.
Note: all references to para, AIR.
This is a theme I leave incomplete with a promise to return to in near future.
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