Twilight Constitutionalism in India: Wrong Rules of exclusion from Higher (Professional) Education of deprived segment of majority of Indian Population

Twilight Constitutionalism in India: Wrong Rules of exclusion from Higher (Professional) Education of deprived segment of majority of Indian Population

Where the mind is without fear and the head is held high

Where knowledge is free

Where the world has not broken up into fragments

By narrow domestic walls

Where words come out from the depth of truth

Where tireless striving stretches its arms towards perfection

Where the clear stream of reason has not lost its way

Onto the dreary desert sand of dead habit

Where the mind is led forward by thee

Into ever-widening thought and action

Into that heaven of freedom, my Father, let my country awake

                                          -     Poet   Laureate,   Rabindranath Tagore

History says, Don't hope

On this side of the grave,

But then, once in a lifetime

The longed-for tidal wave

Of justice can rise up,

And hope and history rhyme. ^[ii][i]

Education should be such that it builds the inner strength of our people. It should bring our ancient heritage to the new generation and make available our aesthetic treasures to the young generation.

–Rajiv Gandhi, Late Prime Minister of India

“Education is a liberating force, and in our age it is also a democratizing force, cutting across the barriers of caste and class, smoothening out inequalities imposed by birth and other circumstances”.

 –Indra Gandhi, Late Prime Minister of India

Right to Access to Higher Education (Professional Education):

The vexed question of access to education has hounded India from times immemorial. The futile pleadings of an Ekalavya for a teacher, that could not even be suppressed in the recesses of our cultural consciousness, to the modern day demands for exclusion from portals of knowledge of the "others", deemed to be unfit even if lip service of acknowledgement is paid that such "unfitness" may be due to   no fault of theirs but is rather on account of their social, economic and cultural circumstances, gouges   our very national soul.

Concept of merit:

Even as higher levels of knowledge becomes vital for survival, and its technologies become capable of empowering those whom belong to groups, that historically and in the present have been excluded from the liberating prowess of knowledge, this country seems to witness, as in the past, a resurgence in demands that knowledge be parceled out, through tight fisted notions of excellence, and concepts of merit that pander to the early advantages of already empowered groups. 

Historical mistakes:

For much of our history, most of our people were told that they were excluded, for no fault of theirs in this and here, but on account of some past mistakes. Hope was restricted to the duty that was supposed to attach itself to station ascribed by a cruel fate, cast as cosmic justice. This order that parceled knowledge, by grades of ascribed status, chiefly of birth and of circumstances beyond the control of the young, weakened this country.

How our country weakened?

It weakened our country because it reduced the pool of those who were to receive higher levels of knowledge to only a small portion of the upper crust. This in turn weakened our method of  knowing and creating new knowledge - knowledge of the deductive kind was extolled primarily for its elegance, and its practical significance derided, and soon enough turned into metaphysics of mysticism that palliated the deprived with paens of a next life.

How it weakened our practical ability? [Practical Knowledge / Deductive Knowledge]

This weakened our ability to apply knowledge to practical affairs of all segments of population, and effectively shut off the feed back loop that practice by users could have provided, so that new knowledge could be generated. Our practical knowledge ossified, and deductive knowledge became ever more ready to justify the worth of the high and the mighty, for such justification  brought   status to the peddlers of mysticism and enabled the high and the mighty to evade questions of accountability to the masses. 

What is truth about knowledge?

It was that truth that our national poet spoke about when he prayed that knowledge would be free. It was that truth that the makers of modern India, those great souls, who could see the causes for   past events, and foresee the needs of the future, tried to inscribe in our Constitution. It is not any wonder that our first Prime Minister in the excitement of the first seconds of freedom from foreign rule spoke about our "tryst with destiny" to the Constituent Assembly, and yet in the same breath also added "now the time comes when we shall redeem our pledge, not wholly or in full measure, but   very substantially."

Views of Noble Laureate Amartya Sen:  

As Amartya Sen points out those were heady times, of promises made and of hope kindled. ^[[ii]] And we, as a nation, promised ourselves that our huddled masses, condemned to rot in squalor, ignorance and powerlessness on account of the incessant exploitation by the elites, and on account of enforced hierarchies of social stature and worth, will never again acknowledge as a teacher, a person who will say that he will teach only members of this group, and not that group. To each and every group, and to each and every individual in those groups, we promised that never again would we allow social circumstances of the groups they belonged to be a factor in our assessment of their social worth. We gave our people the hope that we, the upper crust of India will change, and that their patience and tolerance of our inhumanity, over many millennia in the past and for a few decades more into the future, will soon be rewarded by our humanization. 

What our (Indian) Constitution promises?

We formed our nation-state to make sure that hope and history, as an actuality of experience of our people - all of our people, belonging to all of the groups into which they belonged to - would indeed rhyme. That is what our Constitution promises. And that is the motive force that informs the basic structure of our Constitution. Our fealty to that motive force is as sacred a promise that we as a nation have ever made to ourselves. Every other commitment can be assessed only on the touchstone of that motive force that balances hope and actuality of history, with hope progressively, and rapidly, being transcribed into actuality of real equality. 

Strange interpretation of Indian Constitution:

In contrast to the above, a strange interpretation has been pressed upon us in this instant matter (IMA vs. Union of India, 2011). On the one hand it is contended that the State has to be denied the power to achieve an egalitarian social order and promote social justice with respect to deprived segments of the population, by imposing reservations on private unaided educational institutions, on the ground that this Court has held that private non-minority unaided educational institutions cannot be compelled to select students of lower merit as defined by marks secured in an entrance test, notwithstanding the fact that the State may have come to a rational conclusion that such underachievement is on account of social, economic or cultural deprivations and consequent denial of admissions to institutions of higher education deleterious to national interest and welfare.  ^[[i]]

Twilight Constitutionalism in India:

On the other hand it is contended that private unaided non-minority educational institutions, established by virtue of citizens claimed right to the charitable occupation, "education", an essential   ingredient of which is the unfettered right to choose who to admit, may define their own classes of students to select, notwithstanding the fact that there may be other students who have taken the same entrance test and scored more marks.

It would appear that we have now entered a strange terrain of twilight constitutionalism, wherein constitutionally mandated goals of egalitarianism and social justice are set aside, the State is eviscerated of its powers to effectuate social transformation, even though inequality is endemic and human suffering is widely extant particularly amongst traditionally deprived segments of the population, and yet private educational institutions can form their own exclusive communes for the imparting of knowledge to youngsters, and exclude all others, despite the recognized historical truth that it is such rules of exclusion have undermined our national capacity in the past. 

[iii] [2] Seamus Heaney, The Cure at Troy: A Version of Sophocles' Philoctetes, (London Faber and Faber, 1991); cited in Sen, Amartya, the Idea of Justice (Allen Lane, 2009).