Juvenile Justice Act: Does It Need Review?

Dr M N Buch, 

Dean, Centre for Governance and Political Studies, VIF

Children have been an exploited class in India, not only on account of age but also on account of the way our economy functions in the informal sector, as also the caste system which discouraged education for large sections of the community and virtually forced the children into the labour market at a very young age. There has been a strong reform movement which has tried to return to the child its childhood and in the forefront was Shiela Barse who dedicated her entire life to ensure that children were given protection, their rights were safeguarded and society gave them a fair chance to enjoy childhood. The question of children was important enough for inclusion of Article 39, 45 and 47 in Part IV of the Constitution, the Directive Principles of State Policy. Article 39 (f) reads, “ The State shall, in particular, direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment”. Article 45 makes it the duty of the State to provide for free and compulsory education for children and Article 47 generally calls for raising the level of nutrition, standard of living and health care for all citizens, especially children. Article 24 prohibits the employment of children below the age of fourteen in a factory, a mine or in any hazardous employment. In other words, the Constitution recognises the vulnerability of children and calls for special protection to be given to them by the State. This is very much in keeping with the provisions of the Convention of the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989. It is from this that the Juvenile Justice (Care and Protection) Act, 2000, as amended in 2006, emerged. Basically this Act states that a juvenile, that is, a person below the age of eighteen, cannot be accused of criminality nor, if a juvenile commits an offence, can he be tried in a normal criminal court. He cannot even be arrested or kept under police or judicial custody. A juvenile cannot be described as an offender or criminal but rather, as per the definition given in section 2 (l) of the Juvenile Justice Act, he has to be referred to as “juvenile in conflict with law”. Under section 10 of the Act, if a juvenile is in conflict with law (which means that he has committed an offence), the juvenile has to be immediately placed under the charge of a special juvenile police unit or a designated officer, or sent to an observation home. The idea is that by not keeping him under normal police or judicial custody the juvenile would not be exposed to known criminals or to any moral, physical or psychological danger.

When a juvenile is accused of an offence, the power to inquire into the matter is transferred to the Juvenile Justice Board constituted for a district under section 4 of the Act. If the juvenile is brought before a Magistrate and the Magistrate is of the opinion that he is a juvenile, then the apprehended person shall be transferred to custody of the Juvenile Justice Board, which can take further necessary steps on how to deal with the juvenile. Notwithstanding the nature of the offence the enquiry against the juvenile will be conducted by the Juvenile Justice Board, which may make any order that it deems fit under section 15 of the Act, provided that the maximum period of custody which the Board may order is three years. Under section 19 an order under section 15 will not attract any disqualification which may attach to a conviction under law for the same act by a person who is not a juvenile. The above discussion became necessary because whereas not much attention was hitherto paid to the Juvenile Justice (Care and Protection of Children) Act, a rape took place in a moving bus in Delhi in December 2012 in which a young woman was raped by several young men and then severe internal injuries were inflicted on her which ultimately resulted in her death. This is certainly not the first incident of its kind in India, but because the rape took place in Delhi, the national capital, there was an uproar. Activists of every hue, groups of women, even antisocial elements took to the streets and for four days there was complete chaos and danger of complete breakdown of law and order in Delhi. Advice such as given by Sheila Dixit, then Chief Minister of Delhi, that young women should themselves take appropriate steps to avoid provocation or being in the open at late hours and in lonely localities led to strong condemnation by women’s groups because they alleged that government was avoiding its own responsibility and placing the burden of self protection on women themselves. Almost with one voice women’s groups were baying for blood, demanding stern action against antisocial elements who do not respect women and even calling for mandatory death penalty for rapists. Almost all of them forgot that under Indian law, regardless of the offence with which a person is charged, he is deemed to be innocent till proved guilty, he has a legal right to be heard and the law demands that justice be done impartially and in an environment free of any kind of pressure on the court trying the case.

Anyway, government panicked, the law was amended to include death as a possible penalty for rape, the police was activated and suddenly throughout the country we had a spate of convictions in rape cases. The trials were speeded up to an extent where one even began to doubt whether the accused had a fair hearing and judges vied with each other in the matter of the rapidity with which trials were concluded, harsh sentences were handed down and when this happened in the Mumbai rape case in which the judge awarded death sentence to some of the accused, it brought a rebuke from Mulayam Singh Yadav who felt that death was uncalled for in a rape case. But what really angered the activists was that, as in the Delhi rape case, because some of the accused were juvenile, they could not be tried for an IPC offence under the provisions of Cr.P.C, they were brought before the Juvenile Justice Board, the maximum period of custody was three years, the adverse order did not carry the taint of conviction and after three years the accused would walk free. The adult accused were sentenced to death, which meant that for the same offence which was committed collectively, some people would die and others escape with a rap on the knuckles. Now it was the turn of the very people who had supported the enactment of the Juvenile Justice Act demanding that for heinous offences juveniles should be treated as adults. Since then the pressure has mounted to bring about a suitable amendment in the Juvenile Justice Act.

Recently, the Minister for Women and Child Development, Maneka Gandhi, has called for a revision of the Act whereby a person above the age of sixteen, considering the heinousness of the offence, could be tried as an adult. This demand seems to be fairly common now in India. Some of our so called news channels whose programmes are often only shouting matches between contending invitees, had a series of debates on the issue. On one news channel, the panelists included three eminent women activists whose forte is the rights of children. In December 2012, even such people supported draconian measures against rapists, but in the programme in question they vehemently opposed any review of the Juvenile Justice Act. These well-heeled, highly educated ladies, actually seemed to be arguing that because many of the juvenile offenders are from deprived homes, their background must be taken into account and if they commit offences they should be treated more as victims of circumstances rather than as aggressive criminals who have done an unlawful act. In other words, a juvenile committing a rape should be treated as wayward rather than a deliberate criminal. One can understand a child from a slum resenting a fat cat kid driving past in a chauffeured limousine and heaving a brickbat or two at the car’s windscreen. A deprived child might be tempted into pick pocketing, petty theft or snatching a lady’s hand bag. To such people certainly the Juvenile Justice Act must apply and in the course of rehabilitation the deprivation suffered by the child should be attempted to be ameliorated. But here we are talking about rape, murder, dacoity, etc., which do not fall within the definition of “letting off steam”. These are acts in which violence is deliberately used against the victim to deprive him and her of dignity, property or even life. These offences are never off the cuff and call for a degree of planning or at least of a specific intention to cause harm. These are acts in which mens rea, or criminal intent is involved.

Mens rea means criminal intent or knowledge on the part of law breaker of the unlawfulness of his act. Under Anglo Saxon jurisprudence, mens rea has to be a vital ingredient of an act to make it criminal. What the Juvenile Justice Act does is to begin with a premise that a juvenile cannot commit an act of criminality because he is not mature enough to have mens rea. The law defines juvenile as anyone below the age of eighteen. However, the Chambers Twenty-first Century Dictionary defines juvenile as “young, youthful, childish, immature”. The legal definition of juvenile is unambiguous, which means that a person one day short of eighteen years is juvenile and cannot commit a crime, whereas the same person, had he committed the same crime two days later, would be liable to action under the normal law. The dictionary definition of juvenile leaves some flexibility in that whereas age and youth both are necessary ingredients of the state of being juvenile, maturity and immaturity, both of which are mental or psychological factors, are important. As per the legal definition, notwithstanding the fact that the person who is in conflict with law is mature enough to be able to understand the consequences of his deeds and thus meets all the parameters required for having of mens rea, he would still be deemed to be juvenile. However, if the person is mentally mature then he or she can certainly distinguish between right and wrong and if he or she deliberately opts for what is wrong, then mens rea should be presumed. That is not possible as the law stands at present. In many countries, a court of law before which a juvenile is brought would have the discretion, after suitable psychological, psychiatric and sociological advice, to determine whether the perpetrator of the offence understands what he has done and, therefore, is fit to stand trial. After all, if a plea of insanity is entered by an adult offender the court may rule that it accepts the plea and, therefore, whereas the accused would be subjected to be indefinite court custody, he cannot be tried and sent to jail, despite the fact that he is not a juvenile. In India, on the other hand, the Juvenile Justice Act arbitrarily prescribes an age limit and anyone below the age of eighteen is deemed to be a juvenile and, therefore, incapable of mens rea. Surely this is a situation which calls for some review.

In the Delhi rape case, as also the subsequent rape in Mumbai, the groups which committed the rape consisted of both adults and those who were legally juvenile. In physical terms they performed the same deed, which means that they had attained puberty and were capable of committing sexual assault. There is no evidence to prove that both adults and juveniles were not equally enthusiastic about their wrongdoing. How, then, can one presume that the juveniles had no mens rea and, therefore, what they did was not a crime? It is to address this anomaly that the Minister for Women and Child Development has suggested that the Juvenile Justice (Care and Protection of Children) Act be revisited. No one is suggesting that the Juvenile Justice Act should be scrapped. It has many good points and certainly in a society in which exploitation of children is rampant we need to emphasise the provisions of the Directive Principles of State Policy. In a country in which a four-year old can be forced to become a rag picker in order to survive, society must immediately take steps to ensure a fair deal for the children. If under the constant goading of Prateep Umsongthan, the Thai Government, with the blessings of the King, could launch a massive programme for quality schools in slums, backward areas and the rural hinterland which has transformed Thailand in one round of schooling, India needs to take giant steps in ensuring that no child sleeps hungry, every child goes to school and smiles return to the faces of children who today see no hope for themselves.

The Juvenile Justice Act protects children, who are not born criminals but are forced into petty thieving by social circumstances, who are thus given the special protection of law. But at the same time where those who are legally juvenile but are pubescent commit acts which call for specific violence against an individual, such as murder, dacoity, armed robbery, molestation of women and rape, we need to build into the law a position that in defined serious offences the court should have the authority to determine whether the apprehended person is capable of mens rea. If fifteen is taken as the age of puberty, then a court should be able to rule, after suitable psychological, psychiatric and sociological advice, whether the perpetrator of the act is capable of mens rea or not. Perhaps the Act needs amendment so that if a court finds a person above the age of fifteen capable of mens rea in the matter of defined serious offences, then the court may order that the juvenile be tried as an adult. However, taking his tender age into account, the law may state that such a person cannot be given the death penalty and that the maximum period of imprisonment shall be fifteen years, with the court reviewing the situation after half the sentence has been served so that if there is sufficient evidence of penitence and reformation then the court may suitably reduce the term of punishment. What is more, the institution in which the juvenile is detained should be specially designated and designed for giving education and skill development training to the juvenile so that on release the person can earn a decent living. The place of detention should isolate the juvenile from hardened criminals and as far as possible should not be a part of the normal prison system. These provisions would provide adequate protection to juveniles whilst ensuring that there is a deterrent effect of punishment.

Serious papers should also have lighter moments so that they do not leave behind a macabre or ghoulish aftertaste. When Fredrick the Great of Prussia was the young Crown Prince, he was spoilt and frail. When he joined school his personal tutor advised the class teacher, “When His Royal Highness is naughty punish the child sitting next to him. That will have a deterrent effect”. See how important is deterrence? We need to deter heinous crime, so let us not brush aside Maneka Gandhi’s suggestion.

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Published Date: 29^th July 2014, Image source: http://psychologybenefits.files.wordpress.com

(Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the Vivekananda International Foundation)

When Reservation Becomes Reverse Discrimination

Dr M N Buch, 

Dean, Centre for Governance and Political Studies, VIF

Because India is wedded to the principle of social, economic and political justice and equality of status and of opportunity, it is the fundamental duty of government to ensure this for every citizen of India. That is what the Preamble to the Constitution states. Article 38 requires the State to secure a just social order for the promotion of the welfare of people, minimise inequalities in income and eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. Article 39 suggests in greater detail how this can be achieved. Contained in Article 38 is the mandate to narrow down or eliminate caste based or class based inequalities, to give every profession not only dignity but also equality of status and to remove regional differences arising on account of geography, topography, remoteness, or any other factors which have kept the region backward. From this flows the special consideration given in the report of the quinquennial Finance Commission to backward, remote and underdeveloped areas, together with a special status given to backward people.

All this is aimed at promoting the equality to which the Preamble refers. Read in this context, this is a powerful message of the Constitution to those who govern us because contained in the words of Articles 38 and 39 is the entire blueprint of the Welfare State. Unfortunately Articles 38 and 39 are more or less dismissed because they form a part of the Directive Principles of State Policy which many of us consider to be advisory rather than mandatory. This is unfortunate. It is almost as if the Ten Commandments were to be treated as a mere sermon rather than as the very core of the Christian faith.

Article 14 of the Constitution confers the Fundamental Right of Equality before law on every person within the territory of India. If viewed constructively, this right extends even to those persons living in India who are not citizens of this country. This, incidentally, is the true hallmark of a country governed by the rule of law, which does not discriminate between people on account of religion, race, caste, sex, or place of birth and, in the context of Article 14, even nationality. Article 15 expressly prohibits any form of discrimination. However, Article 16 does state that if there are any backward class of citizens who are not adequately represented in the services under the State, then the State may make special reservations for appointments or posts in order to correct the imbalance. The operative words are “backward class of citizens” and not “backward castes”. This distinction is important as will be discussed later in this paper.

Part XVI of the Constitution goes further and provides for special provisions relating to certain classes. The heading of this Part is slightly misleading in that apart from class-wise reservation it provides for both ethnicity based reservation and for caste based reservation. Articles 330 and 332 provide for reservation of seats for scheduled castes and scheduled tribes in the House of the People of Parliament and Legislative Assemblies of States. Article 331 permits reservation for Anglo Indians in the House of the People and Article 333 provides for similar reservation in the Legislative Assemblies. Under Article 334 such reservations were for a period of fifty years from the commencement of the Constitution, which means that the reservation should have ceased in the year 2000. Unfortunately from time to time the period of special representation has been extended by constitutional amendments and now it appears as if they have become more or less a permanent part of the Constitution. This is also true of Article 335 which states, “The claims of the members of the scheduled castes and scheduled tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State”. Unfortunately the words, “consistently with the maintenance of efficiency of administration” have been used only in the case of the Armed Forces which have steadfastly refused to accept any reservation in recruitment at any level. For the rest, not only have reservations become almost permanent, but their scope in fact has been widened from time to time as populism becomes the guiding factor in politics.

Reverting to Article 16, apart from reservation in government service for scheduled castes and scheduled tribes, there was no reservation for anyone else. Unfortunately the V.P. Singh government decided to disinter the Mandal Commission Report and activate its recommendations on reservation for what are called Other Backward Classes. Without going into the details of the Mandal Commission Report, the fact is that this Commission recognised more than three thousand sub-castes within the Hindu fold and classified a large number of them as backward classes. The Chambers Twenty-first Century Dictionary defines caste in the following words, “all the four hereditary social classes into which Hindu society is divided”. It is important to understand that caste is a concept exclusively within the domain of Hindu society and is defined by sage Manu in Manusmriti. To the best of my knowledge, no other religion has a concept of caste, not even those religions which have originated from the Sanatana Dharma, including Buddhism, Jainism and Sikhism. So far as castes are concerned, special consideration for them is contained in Part XVI of the Constitution and Article 16 does not apply to any matter which is dependent on caste. So far as class is concerned, the Chambers Twenty-first Century Dictionary gives the following definitions, “a category, kind or type, members of which share common characteristics; any of the social group into which people fall according to their job, wealth, etc.,; a system by which society is divided into such groups”. Class, therefore, has nothing to do with any religion and even within the same caste there can be different classes depending on one’s social status, wealth, profession, etc. For example, amongst the Brahmins of Gujarat the caste is divided between two classes, the Nagars who consider themselves to be the top of the heap, perform no priestly duties and who are served in the matter of religion and social customs by Nagar Brahmins, who stand one notch below. All the other Brahmin communities are grouped in a class below the Nagars, though both belong to the same caste. A class cannot have caste but within a caste there can be different classes.

The Mandal Commission tried to confuse between class and caste by lumping all the people of a particular sub-caste into a group to which it gave the title Other Backward Classes (OBC). Therefore, all Gujars, all Yadavs, all Ahirs, each of whom form a sub-caste within Hindu society, were lumped together as OBCs. Even within the Yadavs there are different classes, with some Yadavs being highly educated and highly placed, others following their traditional agricultural and pastoral professions and yet others being uneducated, backward and unable to find gainful employment. However, all Yadavs are now OBC and though government did try to introduce a creamy layer concept in the matter of extension of reservations, the fact remains that an entire sub-caste became transformed into a class and obtained backdoor entry under Article 16 in the matter of public employment. Here is a case of blatant misuse of the wordings of the Constitution to extend patronage to whole sub-castes of people in order to gain their votes. The situation is that as much as half of all posts in government service are reserved one way or the other on the basis of caste, caste masquerading as class, class per se and with an attempt being made to provide reservation on account of religion either directly as in Andhra Pradesh or in the guise of OBC reservation. Both of these are a blatant misuse of the Constitution, though none of our politicians dare acknowledge this publicly for fear of losing their seats. In all this the words of Article 335, “consistently with the maintenance of efficiency of administration”, are conveniently forgotten.

In the Madras Presidency, reservation became a part of government policy in 1923 and gradually the upper castes, especially the Brahmins, not only faced reduced opportunities for government employment but their children were denied education because of reservation of seats in educational institutions. Under the DMK Government things to came to such a pass that only about eight percent of the seats in institutions of higher learning in Tamil Nadu were available to the Brahmins. Because the community has always prided itself on knowledge and learning, the Brahmins decided that their generation would sacrifice itself so that their children could be educated and, therefore, large numbers of Tamil Brahmin children migrated to universities on all points of the compass in order to gain higher education. Similarly, Tamil Brahmins denied employment in Tamil Nadu moved to wherever jobs were available and, like the Malayalees, they formed the backbone of every government in this country. As for the youth, so many migrated to Silicon Valley in the United States that today the entire computer industry in that country would probably collapse if Tamil Brahmins were to withdraw. Without being judgemental or without empirically trying to assess the loss to Tamil Nadu on account of out migration of many of its brightest children, one can safely state that the gain of the Silicon Valley is at the cost of Tamil Nadu. This is one case where reservation has converted itself into positive discrimination against a particular caste and this has certainly not benefitted the State.

The argument for reservation is that social discrimination in India for over thousands of years has created such massive inequalities that if India is to emerge as a modern State it must take all necessary steps to reverse the inequalities and eliminate the longstanding discrimination. That is why we need to empower the scheduled castes, scheduled tribes and OBCs through a share of government service and, therefore, of power so that they can correct the imbalances of the past. I can understand the sentiment behind this argument and do realise that if I were of a caste subjected to discrimination and utter humiliation I would also be filled with a desire for revenge. But revenge is a very bad cure and can kill as surely as the disease itself. The law must take care of social discrimination and we must be ruthless in suppressing it in every form. Perhaps we have not totally succeeded in this behalf and that is utterly shameful. Part of this is because we have not fully understood the context in which Manu divided society into castes. The original division was profession-wise and there is nothing in Manusmriti which suggests that cross caste movement could not take place as one changed one’s profession. The stratification of Hindu society is a subsequent event and its main cause is the extreme form of Brahminical Hinduism into which India descended and against which Prince Siddhartha revolted, became Buddha the Enlightened One and gave us a new religion, Buddhism. That religion itself retreated after Adi Sankara reformed Hinduism, though the reforms were not carried far enough to eliminate the worst forms of caste discrimination. Even today Hindu society is mired in social prejudice and inequality and this must be corrected. The question is whether reservation is the correct way of doing it.

If the State were to consciously follow a policy of providing high grade education to the most backward, the most discriminated against, the most disadvantaged, inequalities based on caste or religion can be narrowed down and even completely eradicated. King Bhumibol Adyuladej of Thailand was able to persuade his government that it must invest in the best educational infrastructure in backward areas, the remote provinces, slums and depressed areas so that, through education, inequalities of status and opportunity could be removed. In one cycle of school education, the Thai Government has succeeded beyond its wildest dreams. The Navodaya Vidyalaya experiment of Rajiv Gandhi is a shining example of what can be achieved through education, though the scale is too small to have a major impact. However, flood the country with such schools then, regardless of caste, we can bring equality to all children and within a cycle of twelve years this would transform India. Empowerment through active affirmative action for equal opportunity is far more effective than the lazy man’s resort to reservations, because reservations neither help the community as a whole, nor raise the capabilities of the target community because what is being offered is a job on a platter, but not the training for the competence needed to acquire that job. Rather than promote merit in the target group, it has created a new class of ‘haves’, who get jobs through reservation and the ‘have nots’ who are left out because there is not sufficient availability of jobs.

Let us begin with political reservations. Rather than having reservation of seats through the Constitution can we not amend the Representation of Peoples Act or, if need be, the Constitution to make it mandatory for every political party to field a given proportion of its candidates from the categories for which reservation now exists? Leave it to the parties to select candidates from scheduled castes and scheduled tribes in adequate numbers. If the party wants to win a particular seat it will have to put up the best SC/ST candidate and whilst this would give representation to these categories, it would be done not because there is reservation but because there is an adequate number of candidates from these categories. Similarly, instead of reservation in jobs should we not, through an aggressive programme of education and training, not increase the competence level of SC/ST candidates so that they can compete on equal terms? Should we not remove from our polity the spectrum of reservation as a means of empowerment and replace it by genuine empowerment through education, training and increasing competence levels?

What we are doing today is to move into a regime in which reservation has become counterproductive and is now tantamount to a reverse discrimination, not only against the upper castes but also within the categories for which reservation is done because by offering easy employment it is destroying their desire for advancement through their own efforts. This is an issue on which we need to do some serious thinking because if reservation creates ennui, despondency or even a degree of fatalism amongst those for whom reservations are provided and also those who have to compete in the open market, the results can be disastrous. For reserved categories it can lead to a feeling that performance and merit are irrelevant because they will find employment through reservation and this would be a demotivating factor in achieving excellence. For those outside the reservation net, the restricted job market can lead many to take the view that no matter how good they are at their studies they will not be given a job, so why study! This is when reservations becomes reverse discrimination and, therefore, counterproductive. We are about to reach that unfortunate stage in our history.      

Constitutionalism Versus Adventurism

Dr M N Buch 

(Visiting Fellow, VIF)

The Constitution of India, despite the amendments which have been introduced from time to time, has a high degree of immutability, partly because its basic structure is sound, partly because it establishes a balance between public good and the constituent organs of the State, the Executive, the Legislature and the Judiciary, partly because amendment of the Constitution cannot be done whimsically because both Houses of Parliament have a role to play and this provides a check against arbitrariness and partly because there are certain inbuilt constitutional structures and organisations which in a way stand outside the normal executive, legislative or judicial structures, but which nevertheless give an independent voice and opinion to issues of national importance concerning governance. The immutability of the Constitution also rests on the Preamble which has been amended only once on 3.1.1977 and that, too, for the better. The immutability of the Constitution is further strengthened by Part III which contains the Fundamental Rights and, according to me, equally importantly through Part IV which contains the Directive Principles of State Policy, which has increasingly been used by the Supreme Court to remind the State from time to time of its basic duties towards the citizens.

An immutable constitution is not a static constitution and this has been reinforced by some fairly sensible amendments which pushed the frontiers of fundamental rights, fine-tuned and enhanced the meaning of words such as justice and equality by conferring on the underprivileged and the voiceless a whole set of rights and by the proactive role of the Supreme Court, the Comptroller and Auditor General and the Election Commission. In many ways these institutions, through interpretation, pronouncement, by public reporting have furthered the cause of constitutionalism beyond the mere letter of the law and have reinforced and strengthened the basic structure of the Constitution. I do not comment at length in this paper on the Supreme Court and High Courts which are part of the judicial components of the Indian State, except to state that through its pronouncements the Supreme Court has given a new meaning to Article 141 which says that a law declared by the Supreme Court is binding. Article 141 does not confer the power to legislate on the Supreme Court, but by interpretation of law the Supreme Court has given a whole series of judgments which to an extent do create a new legal environment, if not a new enactment. Instead, I would like to comment on four different constitutional authorities which are creatures of the Constitution and have a vital role to play in constitutionalism.

In this context the word ‘constitution’ is narrowly constructed by me as per one of the definitions given in the Twenty-first Century Chambers Dictionary, which reads, “Constitution:- the supreme laws and rights upon which the country or state is founded, especially when it is seen as embodying the rights of its people”. The four authorities to whom I refer are the Attorney General of India appointed under Article 76, together with the Advocate General of each State appointed under Article 165, the Comptroller and Auditor General of India as appointed under Article 148, the Union Public Service Commission and the State Public Service Commission appointed under Article 315 and the Election Commission of India appointed under 324 of the Constitution. Whereas there are a number of commissions, such as the National Human Rights Commission and tribunals such as the Central Administrative Tribunal, which are created under the relevant provisions of the Constitution, they are not an integral part of the Constitution and are, therefore, the creatures of law. In a way they come one step below the organs of the State which are an integral part of the Constitution itself.

Let us begin with the Attorney General of India and in this I shall include, mutatis mutandis, the Advocate General of each State, both officers being responsible for giving advice on legal matters to the Government of India and the Government of a State as the case may be. Though the Attorney General holds office during the pleasure of the President and is appointed by the President on the advice of his Council of Ministers, he is expected to be nonpartisan in the rendering of legal advice and performing the legal duties assigned to him. It is for this reason that the Attorney General has the right of audience in all courts in India and, under Article 88, has the right to speak or otherwise participate in the proceedings of either House of Parliament or any committee of Parliament. The legal advice given by the Attorney General and the Advocate Generals has to be based directly on law and the constitutional implications of the issue on which advice is required to be rendered and, therefore, such advice has to transcend the narrow confines of politics. We have had great Attorney Generals in the past who have fulfilled this role admirably and we have had a few whose conduct has been suspicious and whose advice has been tainted by politics. Constitutionalism requires the Attorney General and the Advocate General to be completely free of such bias and to the extent that he performs his duties according to the Constitution, the Attorney General, standing outside the three organs of the State, still performs the vital function of protecting the interests of the people of India by advising the State to act according to the Constitution.

In a parliamentary democracy or, for that matter, in the American pattern of democracy, one of the functions of the Legislature which cannot be tampered with by any one is its control over public funds. Britain was pushed towards a constitutional monarchy by the fact that the purse strings are controlled by Parliament and without parliamentary sanction the Crown cannot spend even a penny from the exchequer. This role of Parliament and of the State Legislature is enshrined in the Constitution in Articles 112, 113, 114,115 and 116 in the case of the Union and Article 202, 203,204,205 and 206 in the case of the States. It is Parliament and the State Legislature which alone can permit withdrawal of funds from the Consolidated Fund of India and that of the State concerned, which means that without the approval of the annual financial statement of receipts and expenditure, the assent of the Legislature to a demand for grants, enactment of the Appropriation Bill, sanction of supplementary, additional or excess grants or a vote of account on exceptional grants, government may not spend anything from the Consolidated Fund. In order to ensure that government is functioning strictly in accordance with what has been sanctioned for it by the Legislatures. Parliament and the State Legislatures through discussions, deliberations of committees such as the Public Accounts Committee and the Estimates Committee and other procedures which have been adopted from time to time, call government to account, which acts as a very healthy check on the executive. It is to help Parliament and State Legislatures to fulfill this role that the Constitution provides for the Comptroller and Auditor General with wide ranging authority. The CAG, constitutionally, determines the manner and form in which the accounts of the Union and of the States will be maintained, he has overriding powers to audit all expenditure directly from the Consolidated Fund or indirectly on the basis of grants, etc., and he has the constitutional authority under Article 151 to present his audit report to the President or the Governor as the case may be, who will then cause such report to be laid before Parliament or the State Legislature. In a way the CAG is the chief police authority and investigating agency in all matters relating to public revenues and expenditure and to that extent, whilst standing outside the Legislature, he still is the public instrument to help the Legislature in determining whether government has acted strictly according to the approved budget. By doing his duty CAG adds to constitutionality because he forces the Executive to render accounts and to face the consequences for wrongdoing. Public funds are involved in all state expenditure and this constitutional authority helps to ensure that the funds are spent wisely.

Articles 53 and 154 vest the Executive power of the Union and the States in the President and the Governors respectively and such powers are to be exercised by officers subordinate to the President or the Governor. Because the Preamble mandates justice and equality and Article 14 further mandates equality before law, the officers who help the President or Governor in exercising his powers have to ensure that whereas the aid and advice given to the President or Governor by the Council of Ministers may be and will be based on the political agenda of the party in power, the decisions taken thereon will be implemented totally impartially and without any form of political bias. For this we need independent Civil Services and, therefore, we have Chapter 1 of Part XIV of the Constitution. That recruitment to the Services should also be impartial and based on merit, under Chapter 2 of Part XIV there is a constitutional provision for setting up Public Service Commissions for the Union and the States. Whereas UPSC members are appointed by the President and State PSC members by the Governor under Article 316, in the matter of removal of the Chairman or a member of any Public Service Commission, Union or State, this can only be done by an order of the President and that, too, after an enquiry by the Supreme Court conducted as per provisions of Article 145 of the Constitution. Further, to ensure that members of Public Service Commissions remain independent and are not amenable to government pressure, under Article 319 a member of a Public Service Commission who ceases to hold office is not eligible for any further employment under the Government of India or of a State. The idea is to immunise the Services from undue blandishment right from the time of recruitment up to the time of retirement by giving independent Public Service Commissions the key role in this behalf. This is another example of constitutionalism in India.

In a democracy it is through elections that one constitutes the Legislature which, in turn, causes the government to be formed. In this behalf we have Part XV of the Constitution which governs elections and provides for an Election Commission which has superintendence, direction and control over elections to Parliament and State Legislatures. The Commission enjoys sweeping powers in this behalf, partly under the Constitution, partly under the Representation Of the People Act, but very largely through the manner in which successive Chief Election Commissioners have enhanced their own role in conducting free and fair elections and bring the entire machinery of the State under the control of the Commission for the duration of the election process. Whatever else works in India or not, certainly the Election Commission of India has won universal recognition and admiration for the manner in which democratic elections are conducted in this country. The apex of constitutionalism, therefore, can rightly be considered to lie in the Election Commission.

This paper is not only on constitutionalism but it is also on political adventurism. In this behalf, unfortunately, the Congress Party has played a most unwanted role in that whenever any of the constitutional authorities have been inconvenient to it the party has tried to bring about constitutional amendment which could curb constitutionalism. Of this the Forty-Second Amendment of the Constitution was the most notorious because through it Parliament tried to give a special status to the Prime Minister in matters of election, it tried to reduce the role of the Supreme Court, it tried to restrict the powers of superintendence of the High Courts under Article 227, it tried to constitute tribunals under Part XIV –A which would not be under the High Courts and it used Emergency provisions under Part XVIII in a manner redolent of wanting to impose authoritarianism on India. Fortunately the Forty-Second Amendment was negated by the Forty-Fourth Amendment of the Constitution, but on the horizon could be seen the danger of political adventurism. It is here that the Supreme Court, in the Keshwanand Bharti case, defining what constitutes the basic features of the Constitution, ruled what lay outside the purview of Parliament in the matter of amendment of the Constitution and laid down the vital legal principle that the amending powers of Parliament did have limitations and Parliament could not, therefore, negate what was provided by the Constitution as a part of its basic structure. The present Comptroller and Auditor General, by his own interpretation of his role, has also enhanced constitutionalism, though there is a political move to reduce the role of CAG, first by trying to set up a multi-member audit organisation and then by trying to see how legally CAG’s independence can be curbed. One sincerely hopes that these efforts come to naught because in the present state of political flux India needs constitutional activism of its constitutional authorities. In particular, Parliament must also realise that in India it is the people, collectively, as represented by constitutional authorities and institutions, who are sovereign and that the organs of the State are restricted to the role assigned to them the people. This would be the most effective curb on political adventurism of the 1975 mould, as now articulated by a junior minister in the Prime Minister’s Office.

The Right to Education

Dr. M.N. Buch
Visiting Fellow, VIF

The original Article 45 of the Constitution, which forms a part of the Directive Principles of State Policy, read, “The State shall endeavour to provide within a period of ten years from the commencement of this Constitution for free and compulsory education for all children until they complete the age of fourteen years”.

By the Constitution (86th Amendment) Act 2002 a new Article 21-A was introduced after Article 21 as a part of the Fundamental Rights and Article 45 was substituted by a new Article 45. The two Articles read, Article 21A – “The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.". New Article 45 – “The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years". In Article 51A, clause (k) was added which reads, “who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years”. Article 21A, being a part of the Fundamental Rights which are enforceable by law, now makes it the Fundamental Right of a child from the age of six to fourteen years to receive free and compulsory education and the responsibility for providing it rests in the State. Subsequently in the year 2009 by Act No. XXXV of 2009, the Right of Children to Free and Compulsory Education Act 2009, Parliament prescribed by law how this right will be made available to every child in India and what will be the duty of the State in this behalf.

Let us begin with an analysis of what the State must do. Article 21A is now a Fundamental Right and it directs that it is the State which will provide free and compulsory education to all children from the age of six to the age of fourteen years. The law amplifies this provision of the Constitution, but by enacting a law the State cannot shrug off its responsibility to ensure that every child is educated and that this education is free. As per the Schedule to the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as the Act) the State has to ensure that between Class-I and Class V in a school which has up to sixty students there will be at least two teachers, between sixty-one and ninety students, three teachers, between ninety-one and one hundred twenty students, four teachers, between one hundred twenty-one and two hundred students, five teachers plus one headmaster and above two hundred children the pupil-teacher ratio will not exceed one teacher for forty students. Between 6th and 8th Class it would be mandatory for there to be one teacher for thirty-five students and dedicated faculty in Science, Mathematics, Social Studies, Languages and part time teachers in Art, Education, Health and Physical Education. In the matter of physical infrastructure every school must have an all-weather building with one classroom for every teacher and an office for the head teacher, separate toilets for boys and girls, safe and adequate drinking water, a kitchen for mid-day meals, a playground and perimeter fencing or wall. There is provision for a library, teaching and learning equipment and play and sports equipment. This means that in a school which does not have these facilities government by law is bound to provide them and to do so immediately. The law, therefore, mandates that the Ministry of Human Resource Development at the Centre and the Education Department in the States must make adequate budgetary provision to ensure that within a reasonable time these norms are met and because this is as per provisions of law government can be taken to court for any failure in this behalf.

Chapter III of the Act gives the duties of the appropriate government. Section 6 of the Act says that where a school of the appropriate standard does not exist government shall establish it within three years of the commencement of the Act. This means that by the end of the year 2012 schools of the appropriate standard should be established. The fact is that nothing of the sort has happened, nor is it likely to happen soon in terms of section 7 of the Act. The Central Government is required to prepare the estimates of capital and recurring expenditure for the implementation of the Act, but it is not the Central Government alone which would provide the money. The State Governments will be given grants and subventions by the Central Government and a reference can be made to the Finance Commission for recommending additional funds to be given to the State Governments. Under section 8 the appropriate government is required to provide free and compulsory elementary education to every child, which means that even if the Central Government does not provide adequate funds the States will have to do so from their own resources. This applies to local authorities also. This leaves the question of funding wide open. Some States may provide adequate funds and the schools there will improve. Other States may not be so fortunately placed and the standard of schools would, naturally, be that much poorer. Urban local bodies may and in fact do provide better schools than rural local bodies. Depending on the pattern of funding in a State this unequal situation may continue to prevail.

Chapter II of the Act is important because it is this provision of law which gives a child the right to free and compulsory education in a neighbourhood school. The Act does not define neighbourhood schools and it would be left to the Central Government or State Governments under section 38 (2) (b) to frame Rules to define the area or limits for establishment of a neighbourhood school. In section 2 (n): a school is defined as an establishment owned or controlled by government, an aided school, a school belonging to a specified category and a wholly unaided school. A specified school is a school which is a Kendriya Vidyalaya, a Navodaya Vidyalaya, a Sainik School, or a school notified as such by government. Every school is required to reserve twenty-five percent of seats for admission to Class I for children from the weaker sections and disadvantaged groups in the neighbourhood. An unaided school would be entitled to reimbursement per child admitted upto a maximum of the per child expenditure provided in the budget of a school established by government or by a local authority. In other words, twenty-five percent of the children admitted to public schools (here the British definition of public school applies), that is, unaided schools will not pay the fees of that school and instead government will reimburse the school to the extent that government would have spent per child studying in a government school. Considering the high fees structure of most public schools and other unaided schools, this reimbursement would be a pittance.

The total number of students studying in privately owned, unaided schools in Class I is about 72 lakh. Twenty-five percent of this comes to 18 lakh. The structure of the unaided schools would now change with 54 lakh students being from families which pay the full fee and other costs of the school and 18 lakh children who themselves pay no fees but on whose behalf government reimburses an amount equivalent to the cost of educating that child in Class-I in a government school, which would be much less than the normal fees of the school. Within the same school one would have two categories of students. Category-1 would be the full fee paying children who come from affluent families, well-dressed, probably coming to school in the family car, carrying their own tiffin and having pocket money. Twenty-five percent of the students within the same school would come from relatively poor families, would not be as well-dressed as the fee paying students, would be less familiar with languages such as English and would generally be looked down upon by other children for lack of sophistication. Children from affluent families probably have association with educated people and, therefore, at least superficially are better off in manners and bearing than the children from poor families. This divide which is social could also become a learning divide which would split the school wide open. Is this the purpose of education, to create a caste system or class system within the same school and have a whole group students feeling inferior to the majority of students?

The number of students seeking admission to schools under the Act would be approximately 2.5 crores in Class I. If only 18 lakh students are to go to non-government schools, that would leave government schools to cater for about 2,30,00,000 (two crore thirty lakh) students. Where these children would be accommodated? Obviously, in the nearest government, municipal or panchayat school. Except for a few large urban centres the government and local body schools have a very poor infrastructure and in backward states the infrastructure would put a pig-sty to shame. Most village schools do not have any furniture and the children sit on the ground on a strip of jute matting if they are lucky or on the bare ground if they are unlucky. These students may be even worse placed than category-2 students within a non-government school, whose infrastructure may be marginally better. They would be the third category of school children in Class I. To recall, category-1 would be the fee paying students in non-government schools, category-2 would be students in non-government schools who enter that school under the provisions of section 3 of the Act read with section 12 and category-3 would be students in government schools. Category-1 would look down upon category -2 which, in turn, would look down upon category-3. This is not free and compulsory education -- it is a perpetuation of the worst aspects of the caste system. The Right of Children to Free and Compulsory Education Act, therefore, will become a device for perpetuating and accentuating the caste and class divisions in society.

Another question which arises is why the State has deliberately restricted the right to education up to the age of fourteen, that is, the end of middle school education. Our education system has three phases with Classes I to V being the primary school, Classes VI to VIII being the middle school and Classes IX to XII being the high school and higher secondary school. Education upto Class –VIII does not quality a child for any kind of a job even on attaining majority and it only opens up the door to higher secondary school or to vocational education. Surely a child should be supported till Class-XII, by which time it should have acquired an adequate level of education to become competitive and to enter a college or go directly to the job market. Other countries take children up to the end of high school and the Right of Children to Free and Compulsory Education Act, as also Article 21 A, should extend this right upto the age of eighteen or nineteen so that a child entering the school system at least goes up to the higher secondary level.

Whence comes the right to education? One commonly held belief is that the right emanated from the original Article 45. It can now be argued that it comes from Article 21A. Both thoughts are erroneous because the right to education is contained in the Preamble to the Constitution. The Preamble mandates Justice, social, economic and political and Equality of status and of opportunity which can only come about if there is equity in education and imparting of knowledge. The right to education, therefore, emanates from these two provisions of the Preamble itself. Article 21A confers no additional rights though it does specify within the body of the Constitution itself that there is a fundamental right to education. The government of the day is a creation of Part V, Chapter 1 of the Constitution and Part VI, Part 2 of the Constitution in the case of the Union and the States respectively. It is these Parts of the Constitution which create the Executive or the Government. The duties of the government in the matter of providing education up to the age of fourteen are given in Chapter III of the Act. That being the case what we really need is not a Right to Education Act, but a Duty to Educate Act. That Act should categorically state that it is the duty of the State to educate all children upto the higher secondary level, to ensure that the educational institutions are of a quality where they can impart genuine education and not merely make a sham of promoting literacy. The minimum standard to be achieved should be that of the Navodaya Vidyalayas.

Since 2004 I have been writing to the Prime Minister that government must establish at least ten thousand new Navodaya Vidyalayas so that quality education reaches down into rural India. Obviously what I said made sense because the Prime Minister publicly announced in 2007 that government would establish six thousand new model schools of the Navodaya standard. This would be the right step in fulfilling the duty of government to educate. What happens to this announcement? The Planning Commission and Ministry of Human Resource Development insisted that these schools will be established in the Public-Private Participation (PPP) mode. The plea taken was that government did not have adequate funds.

This is violative of the even somewhat anaemic provisions of section 7 of the Act in the matter of funding and, therefore, is both morally and legally untenable. However, it is definitely indicative of the mindset of a section of government, unfortunately the very section which deals with education. Article 21A was brought on the Statute Book and the Act enacted because there was public pressure and because government thought it could win kudos by these paper transactions, However, the intention to educate was never there because it was never intended to provide adequate funds. The 86th Amendment of the Constitution and the Right of Children to Free and Compulsory Education Act, 2009 are both fraudulent in that the law-makers knew that there was no intention to enforce the right. What can one say about a country whose rulers refuse to acknowledge that the base of civilization, of society, of knowledge, of culture, of higher education and technological achievement is the school? If the level of the school is as miserably poor as that of the average Indian school, what sort of a base or foundation would we have? The superstructure of the education system at present rests on quicksand. God help this country if we do not genuinely decide to not only give the right of education to our children but to actually enforce this right with all the resources at our command.