Background
There has been a lot of heat in the recent past about a
purported move by the Telangana government to restrict "fee reimbursement"
only to those students who can demonstrate their parents (or grand parents)
were bonafide residents of Telangana as of November 1, 1956.
So far I resisted the urge to write on this subject in the
absence of any concrete move and the related text. It now
appears
that the state has issued a Government Order (GO) to this effect. As one may
expect, the Seemandhra politicians are unhappy about the development. Social
welfare minister Ravela Kishore Babu reportedly called the GO
"unconstitutional". Babu claims it violates the Telangana formation
act that "categorically states that all admission-related matters that
have been in practice in Andhra Pradesh before June 2, 2014, would continue for
ten years in the two states".
The minister is further reported to have said:
"Constitution of India bars any sort of discrimination against anybody
based on their region and imposition of restrictions on the Seemandhra students
by the Telangana government was tantamount to violating the Constitution".
Babu is quoted: "There is a strong ground to challenge
the GO in court as it robs lakhs of students who were born and brought up in
Hyderabad of their basic (sic!) right to get education without any
discrimination. I have had consultations with the AP advocate general and we
will pursue the matter legally".
Seemandhra Chief Minister Nara Chandra Babu Naidu, in what
has been projected as a reconciliatory gesture,
offered
his government would bear 58 per cent of the total fee reimbursement amount for
professional courses and wanted Telangana to pay the balance. Naidu is said to
have referred to the Presidential Order and six-point formula and allegedly
claimed the Telangana formation act "stipulated that there should be
common admissions to
professional
courses for 10 years". Naidu reportedly advised Telangana that
solutions to any intractable problem could be found if representatives of both
the governments sit together and discuss.
Status
of the proposed scheme
The actual
GO
is itself limited to the constitution of a committee of principal
secretaries/secretaries for finalizing the guidelines of the scheme. In other
words,
there is still no definite scheme.
Section 4 of the GO consisting the contentious part of the proposed
scheme i.e. section 4 is reproduced below:
"With a view to enable the students of Telangana State
to get financial assistance, it is proposed to lay down the fundamental
principles based on which this policy will operate. FAST shall be made
applicable to all the students pursuing ongoing studies and fresh admissions
and whose parents were bonafide
residents of Telangana State as on 01-11-1956 and shall come into force
from the current academic year 2014-15. The Certificates for the bonafide
residence shall be issued by the Revenue Department after seeking for
information from the applicants through a detailed format to ascertain the bonafide
residence status of the parents/grand parents of the students".
The impugned GO is obviously not yet open to a legal
challenge as it is still a statement of intention rather than an enactment. Ravela
Kishore Babu and other like minded individuals are best advised to attack the
final GO that emerges after the committee's deliberations come to a logical
end.
However the intentions are quite clear. It is probable (or
even highly probable) the committee's guidelines will relate only to matters such as the elements of
assistance, quantum/extent thereof, modalities relating to the verification/certification
of "1956 bonafide residency" and disbursement. The present is
therefore as good a time as any to examine the dimensions and impact of the
proposed scheme.
Questions to be examined
Let us first cut through the unnecessary layers of confusion
to separate the wheat from the chaff. The following facts need to be
acknowledged before getting down to serious business:
·
The fee reimbursement scheme in the erstwhile
state of Andhra Pradesh (AP) is of recent origin
·
For instance, no such scheme existed during
Naidu's two previous terms
·
As Telangana has since rescinded the earlier GO,
the scheme is no longer valid in the state
Assuming the scheme that finally emerges will be
substantively based on section 4 of GO 36, the following questions become
pertinent:
·
Does the Seemandhra government have the right to
mount a legal challenge to the scheme?
·
Is the scheme ultra vires the constitution?
·
Does the scheme violate the Telangana formation
act?
Seemandhra government locus standi
Parens patriae, the Latin term often translated as "parent
of the nation" refers to the right of an organ of the state (often but not
always the executive) to intervene on behalf of citizens.
Can the Seemandhra government intervene under this
principle? In Suchita Srivastava & Anr v. Chandigarh Administration, 2009,
Chief Justice KG Balakrishnan writes: "The doctrine of `Parens Patriae'
has been evolved in common law and is applied in situations where the State
must make decisions in order to protect the interests of those persons who are unable to take care of themselves".
The individuals aggrieved by the FAST scheme include
students applying for higher education. They are presumably well educated and
mentally fit to defend their own interests. While their ability to pay for
legal action may not be limited, there is no dearth of legal assistance
(including the abundant availability of lawyers willing to work on pro bono
basis).
Applying the "inability to defend oneself" rule,
Seemandhra government intervention is therefore untenable in the present case.
DP Joshi (details further below) and thousands of students like him have taken
up legal action in the past. Some of the aggrieved students may indeed be law
graduates themselves.
Let us now consider the reasons proffered by the
politicians. Babu refers to "imposition of restrictions on the Seemandhra
students" while Naidu speaks of "intractable problem" presumably
between the two states. The inference is obvious: Seemandhra government is
asserting the right to intervene on behalf of "its students" whatever
definition may be applied to claim the aggrieved individuals as their own.
There is no conceivable way Seemandhra government can
represent all the students aggrieved
by the scheme. It is clear several other states (especially Karnataka &
Maharashtra) can make a similar assertion. Their locus standi claims would
stand on equal strength if the above
contention is accepted.
Parens patriae can be exercised only if the action passes
the "best interests test". The honorable Chief Justice held in the
Suchita Srivastava case: "It is important to note that the Court's
decision should be guided by the interests
of the victim alone and not those of other stakeholders such as guardians
or society in general". Let us check if treating Seemandhra & other
governments as parens patriae serves the best interests of the aggrieved
students.
·
Multiplicity of litigants is no guarantee of
success. On the other hand, contradictions between their arguments and lack of
coordination are likely to drag down the proceedings
·
In a politically charged atmosphere, it is only
to be expected that the states will pander more to the interests of others
(e.g. party/state) rather than the students
·
Most importantly, accepting the premise gives
raise to a circular reference. Claiming
to act on behalf of "our people" may gain locus standi but is also tantamount
to admitting Telangana has no obligation towards these individuals
What about public interest litigation? Ravela Kishore Babu
can probably mount a legal challenge against FAST in his individual capacity. The
Advocate General, a constitutional authority appointed under article 165, would
however be under no obligation to assist or advice any individual merely
because he coincidentally happens to be a minister. In fact, such assistance
may be considered inappropriate.
FAST and fundamental rights
Based on the observations, it appears the politicians
opposing FAST believe it violates the fundamental rights of "their"
students. Let us check if this is the case.
Article 14 is simple but succinct. The entire text reads
"The State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India".
The contention that education is a fundamental
("basic" in the minister's words) right is interesting. Even if is,
financial assistance can in no way be termed a fundamental right. Accepting
this assertion would lead to a situation where Naidu's previous government
would be put in the dock. As a loyal party insider, surely Babu does not want
this!
Article 15 is in four parts. 15 (1) reads: "The State
shall not discriminate against any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them". 15 (2) while also forbidding
discrimination is not relevant to our discussion as it relates to access/use of
facilities. The other two points permit special provisions and are hence
immaterial.
It is evident at a first glance that discrimination based on
region ("Seemandhra students") is not forbidden. Only religion, race, caste, sex and place of
birth are covered. More over the article applies to cases where place for
birth (or any of the others) is the only
basis for discrimination.
The minister either received wrong advice or misunderstood
the Advocate General. I trust the latter would be able to sort out the
unwarranted confusion.
Let us now look at available precedent. DP Joshi v. Madhya
Bharat, 1955, relates to a situation where a publicly owned college applied
different financial norms to bonafide residents and others. The term
"bonafide residents" was defined to include an individual who met any
of the four prescribed qualifications. Interestingly enough the first criterion
read "a citizen of India whose original
domicile is in Madhya Bharat, provided be has not acquired a domicile
elsewhere".
Joshi, a student who did not qualify for exemption, argued
that exempting bonafide residents from capitation fee while imposing it on
others violates his article 14 rights. The petitioner also alleged that the
exemption was based on birth and hence ultra vires article 15 (1).
The historic case settled an important question "whether
there can be such a thing as Madhya Bharat domicile apart from Indian domicile".
After examining various aspects, Chief Justice Bijan Kumar Mukherjee writing
for the majority concludes: "We do not, therefore, see any force in the
contention that there cannot be a domicile of Madhya Bharat under the
Constitution".
Joshi's claim of injury under 15 (1) was rejected in toto:
"Residence and place of birth are two
distinct conceptions with different connotations both in law and in fact,
and when article 15(1) prohibits discrimination based on the place of birth, it
cannot be read as prohibiting discrimination based on residence".
The honorable Chief Justice proceeded to verify the alleged
violation of the petitioner's article 14 rights. This was found not to be the
case and the classification was held to be "eminently just and reasonable".
FAST and article 371-D
The only applicable parts of the Telangana formation act of relevance
to us relate to article 371-D. Before examining these, let me remind the
readers I
demolished
the earlier claim that Telangana formation is illegal as long as the article is
on the statute books. As this post covered the nature, purpose and operation of
the article to a good extent, there is no need to repeat these aspects. I have
also
provided
a complete link between the so called six point formula, the thirty second
amendment and article 371-D.
Does article 371-D define the domicile applicable to the two
states? The answer appears to be in the negative. The language of the article
or the resulting presidential orders can in no way be stretched to indicate
domicile. The article is related only to local
status as applied to zones
within a state.
Let us now examine the changes arising out of the 2014 act.
Section 95 reads: "In order to ensure equal opportunities for quality higher
education to all students in the successor States, the existing admission
quotas in all government or private, aided or unaided, institutions of higher,
technical and medical education in so far as it is provided under article 371D
of the Constitution, shall continue as such for a period of ten years during
which the existing common admission process shall continue.
Section 97 amends article 371-D at three places. The major
change is in clause 1 that now reads as follows (changes emphasized):
"The President may by order made with respect to the State of Andhra Pradesh or the State of
Telangana, provide, having regard to the requirement of each State, for equitable opportunities and facilities
for the people belonging to different
parts of such State, in the matter of public employment and in the matter
of education, and different provisions may be made for various parts of the States”
The other two amendments are minor drafting matters in that the
two successor states are clearly mentioned against the lone earlier.
The above changes in article 371-D do not have any bearing
on the subject of domicile whatsoever. The main thrust article continues to be
the same as before.
Strangely enough Babu is now seeking relief under the
amended article 371-D while his party colleagues earlier held any such amendment
would be ab initio void and illegal. How the wheels of time turn!
A plain reading of section 95 shows it applies to "institutions
of higher, technical and medical education", not "professional courses"
as Naidu claims. As a politician of some standing, I trust the distinction
would have been apparent to him had he read the law himself!
Section 95 provides that "admission quotas" will
continue "in so far as it is provided under article 371D". As the article
itself has been simultaneously amended, this reference can only be to the
amended article.
Naidu's contention of "common admissions" is
undoubtedly correct but Babu is off the mark by a wide margin. Nowhere does the
section speak of "all admission matters".
The "quotas" are not a part of the article itself
but in the resulting presidential orders. As FAST does not propose to change
this in any way, the scheme is not open to attack under this count.
FAST does not touch the common admission process in any way.
As admission is a prerequisite for any financial assistance, it is axiomatic
that the process of evaluating eligibility for assistance starts only after a student is admitted under the
applicable rules. No activity can destruct its predecessor.
Let us remember article 371-D is of a merely enabling
nature. If (when) different presidential notifications are issued for the two
successor states, the common admission process will lose its relevance.
FAST and 1956
Article 371-D recognizes only two categories i.e. locals and
non-locals and that too for two specified purposes. More over the rules can be
(and in fact are) different between the two categories. The fact that locals
whether admitted under the preferential quota or the merit list, may or may not
be eligible for financial assistance is not relevant to the article.
"Duration of residence" being akin to
"residence" itself may not be invoked to challenge the cut-off date
under article 15 (1).
Article 14 does not forbid discrimination by itself. It only
mandates "equality before the law or the equal protection of the laws".
This should by no means come in the way of any cut-off date.
Going beyond the law
Having established the proposed scheme does not (subject to
assumptions stated herein) violate Indian law, let us go beyond the strictly
legal aspects.
Domicile is closely associated with succession &
inheritance. If domicile is defined with a 1956 cut-off this would lead to a
situation where any law passed in these matters (e.g. strengthening women's
property rights) will not be applicable to those who were not bonafide
residents as of 1956. Determining the applicable law in every case would prove
extremely contentious situations. The option of prescribing the applicable
rules in domicile based legislation is neither elegant nor free from mischief.
Domicile is typically discretionary. Individuals are free to
change their residence as and when their situations change. There would be
thousands of cases of migration and return, especially between bordering areas.
Agriculturally backward districts evidence migrations by busloads every day:
some return while others don't.
The fact that an individual was a "bonafide
resident" in 1956 does not guarantee he remains one on the day he applies
for financial assistance. This opens up a pandora's box. The phrase "whose
parents were bonafide residents of Telangana as on 1956" is clearly not
enough. The domicile status must have been preserved all these years.
Whichever way the qualifications are worded, anomalies
and/or inconsistencies are bound to remain. This may (will) lead to much
wrangling, frivolous litigation and unnecessary hostile media cacophony. Do we
need to go through all this for something that can be handled in a simpler
manner?
What are the proposed benefits of the 1956 cut-off? The
impugned GO mentions two objectives: enable access by poor and eligible
students to higher education and increase the gross enrolment ratio. I fail to
understand how these can be realized by prescribing a 58+ year continuous
domicile requirement.
I am told the fee reimbursement scheme is a rip-off that
benefits unscrupulous college owners. There are several allegations of
inadequate facilities, fleecing and poor standards in most of the colleges
benefitting from the scheme. Perhaps some or most of this is true but does
restricting assistance to "bonafide residents" eradicate the problem
or even reduce its magnitude?
There is no doubt that the current education system needs an
overhaul. There are no doubt grave issues concerning the efficacy of the way we
are working today. The root cause of these problems lies in the lack of
cohesion between education, economics, industry and life in general. The widely
prevalent crony capitalist phenomenon feeds on this lacuna as much as it
exploits greed & political corruption. No cut-off date can be a magic wand
that dispels these social evils. Expecting a mere tool to purge society of its
ills is like hoping the tail would wag the dog.
I read Katta Shekar Reddy's
blog post
titled 1956
ప్రాతిపదిక ఎందుకు (why 1956 as basis)
with great interest. I am constrained to observe the post (probably a reprint
of an editorial or news story) throws no new light on the matter. Claiming
Telangana's past suffering due to violation of Mulki rules and the subsequent
zonal system would be negated by the 1956 cut-off is unrealistic to say the
least. The post does not establish correlation much less nexus between these
aspects. I am not surprised as I believe these are entirely unrelated to each
other.
I am not persuaded by the "justification" that a similar
cut-off (1950) was used by the erstwhile state in the past. Perhaps it was not
contested by anyone? Perhaps there were extenuating circumstances (e.g.
protection of tribals) in the cited instance?
In any case, two wrongs do not cancel out each other. A long
stick such as the proposed cut-off does not look reasonable at the face of it
any which angle you look at it.
Because 1956 is the subject matter of the debate let us take
a quick look at the situation obtaining on that date. The prevalent Mulki rules
specifically permitted an individual "who has a permanent residence in the
Hyderabad State for at least 15 years and had abandoned the idea of returning
to the place of his previous residence" to obtain domicile status. It may
be worth recalling here I among others have
advocated
that "To the extent practicable, the methodology may be based on the
likely consequences that may have occurred if Telangana & Seemandhra
had not merged in 1956".
The human element is missing from the entire debate. Tens of
thousands of people migrated to Telangana in the immediate aftermath of the
breakup of Hyderabad. Most of these families had and continue to have deep
rooted ties with Telangana. This migration continued unabated till the early
seventies. Post-1956 migration was equal to the above if not even larger. Most
of these people were driven by the opportunities for livelihood.
Many but not all
the newcomers came from Andhra. Among these, some but by no means all, exhibited a carpetbagger's attitude
towards the previous inhabitants and treated land that gave them shelter,
livelihood & security with scant respect. A large majority of the migrants however
harbored no hostility or ill-will. Many integrated well settling down as a part
of the Ganga Jamuni tehzeeb.
Excluding everyone from the scope of a beneficial scheme
merely because a small group usurped
jobs and/or ridiculed our culture can hardly be termed rational. Telangana can
and should avoid such broad brush strokes.
I am aware many "post-1956 Andhras" opposed the
Telangana movement with varying degree of hostility. This is no reason for
denying them (and the many who stayed neutral or supported the movement) access
to assistance.
The eminent jurist William Blackstone formulated the
principle "It is better that ten guilty persons escape than that one
innocent suffer". In the present context we should not hesitate to let a
few violators go scot free rather than deny justice to a single deserving
individual.
I urge the Telangana government to give up the move. We can
and should work out a more appropriate method without throwing the baby with
the bath water.
