Tuesday, June 06, 2006

Prashant Bhushan, Pratap Bhanu Mehta and Jaivir Singh on the constitutional tenability of the 93rd amendment

They gave their opinion as a part of the Perspectives section of the Economic Times.

Several weeks ago, Satya pointed to a Telegraph   op-ed by Sudhir Krishnaswamy about the same topic.

First, we have Prashant Bhushan, a Supreme Court lawyer:

a Constitution which from its inception had provisions for special treatment of backward sections, both in the chapter on fundamental rights and in the Directive Principles, can hardly be said to have basic features which prohibit the State from reserving seats in private institutions.

Here is Pratap Bhanu Mehta, who has been making news (in addition to commenting on it) lately:

[The 93rd Amendment] can be held to violate [the Constitution] on two grounds: first, if we think it somehow violating property rights and that the private-public distinction is somehow part of the basic structure. I doubt any court in India would be radical enough to make this distinction part of the basic structure.

But it is shocking that the State first does not fulfil its responsibilities in the sphere of education; then comes down hard on the private sector when it picks up the slack. The second ground could be equality: does the reinstatement of the distinction between minority and non-minority unaided, repeat, unaided institutions violate equality? I happen to think it does, but then our courts have often tried to square circles.

Finally, we have Jaivir Singh, a professor in JNU's Centre for Law and Governance:

Changing the Constitution whenever majoritarian political agendas are to be pushed through will create an impotent constitution. In the current context, the state should think of putting into effect an affirmative action policy that does not upset the carefully ordered constitutional balance.

I am evidently not an expert to offer any deep, thoughtful comments on this piece. But, such considerations should not come in the way of blogospheric attempts at collective enlightenment! Wisdom of crowds, and all that. So, here we go...

Wouldn't it be wonderful to have a bunch of law blogs -- blawgs@ -- by Indian legal luminaries of all political persuations? In the US, for example, blawgs are being praised for "some of the freshest and insightful writing" [via Political Theory Daily Review (June 5)].

To me, Jaivir Singh seems to make some very valid points. Considering that reservation (or, more broadly, a program of affirmative action) could have been pushed through without resorting to an Amendment to the Constitution, it appears to me that this was an entirely undesirable thing. Also, as Singh points out, this Amendment's liberty-limiting side effects could come back to bite us in unpredictable ways later (he gives the example of Narmada oustees to illustrate his point).

On the other hand, the 93rd Amendment was meant for a different purpose: reservation or affirmative action in private, unaided institutions (and perhaps later, in private industry as well). Could this objective have been achieved without resorting to amending the Constitution? I believe the answer to be a qualified 'yes', and this is based on what I have learnt from my (admittedly limited) reading of the early history of affirmative action (and of the Civil Rights movement and anti-discrimination laws) in the US. I am still working on saying something coherent on this topic, so that post will have to wait for a while.

In the meantime, if any of you can point me to online resources on the history (particularly early history) of affirmative action in the US and positive discrimination in the UK, please leave them in the comments. I realize that there are many on racial integration in schools and jobs, but I am keen on stuff on affirmative action in colleges. Many thanks in advance.


  1. Anonymous said...

    well i came across an undergrad thesis on this topic:

  2. Abi said...

    Pratik: Thanks for that link! It has some interesting stuff about the developments after Bakke, but I am somewhat familiar with this part of the history. I am also aware of the 2003 decisions involving the University of Michigan.

    I am (still) looking for resources on the early history (1950s and 1960s) of affirmative action; more specifically, on AA in colleges and universities.

  3. Anonymous said...

    Banu Pratap’s Lassez Faire in education cannot be accepted. The issue of right of pvt colleges to administer themselves should be viewed in larger context. I hv been a personal witness to the working of private colleges.

    When rules and social responsibilities are relaxed, the private sector views education as an area to make quick bucks exploiting the great Indian middle class's appetite for professional education.

    An empirical view of private colleges established in AP would prove that those colleges which were established during the early 80's today have higher standards and are rated much higher than those which were established in the mid-90's. The worst being those who were established in the late 90's.

    So much so that students in AP prefer pvt colleges established in the early eighties in TN (even if they have to pay capitation fee) than those recently established in AP. Lack of infrastructure and sound faculty is rampant in most of these colleges. Some have the notoriety of temporarily hiring computers when there is an inspection by the AICTE officials. Most of them have flagrantly violated the locational requirements that were in force some years back to ensure sufficient presence of colleges in rural areas Hence regulation is inevitable.

    The second issue is that the pvt colleges cannot claim absolute freedom to manage there affairs as they have availed numerous benefits from the govt in terms land, electricity etc. In addition to this, most of these colleges operate behind the veil of a bogus NGO (usually called as some educational society) and get numerous tax concessions. Further, it can be seen that majority of senior faculty are contributed by the govt colleges. Thus the pvt colleges owe the society and govt much more than whatever little tax they pay.

  4. Anonymous said...

    Glad you asked:

    Thomas Sowel on AA
    deceptive comparison
    Reservation or AA?
    Another Article
    Paper on AA vs. Reservation

  5. Anonymous said...

    cosmic voices,

    Why do you say that regulation is inevitable? As you rightly claim, the reputation of the colleges has forced students from AP to even go to better colleges in TN by paying capitation fees. Don't you see that this is a very good example of the education market correcting itself? What would government regulation change in this scenario other than in preventing these colleges to come up in the first place?

    With that said, I agree that the word "private" is a little nebulous in the case of the educational institutions because of all the tax breaks and cheap lands that they get (if they have, that is). As such, there is nothing constitutionally wrong in regulating private colleges. What I would like to see is the government letting completely private colleges to come up, and not interfere in their functioning in anyway.

  6. Anonymous said...

    Prashant Bhushan is somewhat incorrect. The constitution did not have special provisions for backward classes from the inception, only a clause about abolishment of untouchability. The article 15 had 3 clauses.

    The very first amendment actually added that fated 4th clause (amid quite a bit of protests) to the article 15.

    2. Amendment of article 15.-To article 15 of the Constitution, the following clause shall be added:-

    "(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes."


  7. Anonymous said...


    market correcting itself? at whose costs? At cost of hapless students?

    If you believe that we should let market correct itself, then I think we should disband SEBI, TRAI, Consumer courts and finally the administration itself.

  8. Anonymous said...

    Cosmic voices,

    Please don't caricature my position. All I said was that regulation is not inevitable. My position is not that we should let market correct itself; it is that market has already corrected itself and that people have formed opinions about the colleges over time. No new regulation is going to have any beneficial effect.

    If new colleges are opened in the future, they will have to start from the bottom of the reputation heap and work their way upwards.

  9. Anonymous said...

    @ easwaran

    OK..got that..

    that market has corrected itself is true of engg colleges.... but in AP we find the same crap repeating in medical and pharma colleges...

    and in any case i would not agree that "No new regulation is going to have any beneficial effect" ... new situation might demand new regulations... regulation is a perpetual process, however the intensity and involvement of the process could vary with times.... but we cannot blanketly do away with it

  10. Anonymous said...

    Mehta asks:

    'Is it anti-discrimination? Is it to increase representation? Is it to increase empowerment? Is it to break down the power of inherited networks? Is it an anti-poverty measure..'

    And then goes on to say:

    'These goals are not all the same and reservations do not meet most of them. And we do not take measures that actually meet them.'

    He's not sure about the goals, but he's definitely sure about the measures - they're not reservations.

    From what I can gather from what he writes/says on Television, he doesn't mind adding his own 'truth' to history - 'the relentless expansion of the category of backwardness since is an insult to those who experience real injustice on the ground.' Who was expanding, relentlessly,the category of backwardness? There was no category of bsckwardness in central policy as late as the 90s. THis adding of color, this ignoring of the profile of students not admitted, year after year, at the institutions now being asked to reach out.. this inclination to litigate - has it helped in formulating any of the measures, he asks for but doesn't elaborate, in the last twenty five years?

    On the other hand, it has definitely helped foster discrimination, non-representation, disenchantment etc.,

  11. Anonymous said...

    The amendment was necessitated because the supreme court asked for it. The HRD Ministry had earlier tried to impose quotas on private colleges, but the decision was struck down by the SC (TA Pai case, was it not?). So as far as "imposing quotas" is concerned, the amendment was necessary.

    If you are talking about a more nuanced approach to affirmative action which does not involve arm-twisting (like a couple which we discussed on chat for the industry), I'd love to hear about them.

  12. Abi said...

    Eswaran: "Private" certainly is a nebulous word. In higher education -- specifically, research universities -- there can be no institution that is completely 'private'. Much of basic, academic research depends on government funding. It's this handle that our government could have used to ask the private colleges to toe its line. If the government thought long and hard, it could have come up with many other ways of making private colleges do its bidding. Its powers of persuasion are immense, indeed!

    Instead, our politicians have chosen a constitutional amendment. I think it's very unfortunate.

    OBC Voice: Thanks for adding your views to this discussion.

    Gaurav: I am yet to work my thoughts through. Will get to it, eventually. I hope it won't take long ...