How To Make The Law An Ass

There\’s an old saying that the law is an ass, but I never grasped its full meaning till I read the Supreme Court\’s judgement on the right to education.

The court was pronouncing on the validity of Karnataka\’s law on private medical colleges. This law abolished capitation fees but allowed colleges to charge Rs 60,000 per year as tuition fees for students from other states, Rs 25,000 per year for local students, and Rs 2,000 per year for government seats (which are in effect scholarships). The real cost of medical education can go up to Rs 1 lakh per year.

The court has held that if any private medical college charges more than the fees in a government college (namely, Rs 2,000 a year), that amounts to a capitation fee and is unconstitutional. If the logic of this is extended to other educational institutions, it implies that every private school and college, from the nursery to post-graduate level, must close down unless it slashes its fees to the level of similar government institutions. Since many first-class educational institutions in India are private ones without a government subsidy, they will be forced to close down.

ZANY LOGIC: Does the court really want this zany logic to be universalised as a matter of principle? Apparently so. In this case, the court decided that the right to livelihood and dignity implies a right to education. Now almost everybody will applaud such a right. What is hilarious is the court\’s interpretation of such a right.

It says private tuition fees in excess of the fees government institutions charge represent the selling of education. \”The concept of teaching shops is contrary to the constitutional scheme\” says the court, since the right to education will be vitiated if a rich man can buy himself a good education which poor, meritorious candidates cannot. It declares that education cannot be a commodity for sale.

Let us take this idea to its logical conclusion. This implies that:

• Nobody should be allowed to hire a tutor, for the poor cannot afford tutors.
• No students should be allowed to buy their own text-books, for the poor cannot afford them. Indeed, all existing text-books must be burned and no more should be printed save to the extent government schools themselves are able to provide such books.
• Nobody should be allowed to go abroad for an education, since such a person would be committing the unconstitutional sin of purchasing an education.
• If by any chance a person does go abroad for education, such a person must be prevented from returning to India, since he will have an unconstitutional advantage over the poor. Long live the brain drain.

A good Stalinist might claim that such a system promotes the social good even if it means a sacrifice in quality. But the Supreme Court believes quality will actually improve. It quotes approvingly a resolution of the Indian Medical Association which says that \”commercialisation of medical education endangers (sic) the lowering of standards of medical education\”. Going by this logic, American universities like Princeton, Harvard, and Stanford — all of which are guilty of charging enormous, commercial fees — are a recipe for low standards, while government medical colleges in India are a recipe for excellence. Apparently the existence of Princeton and Yale denies Americans a right to education. On the other hand, if we reduce all private education in Bihar to the pathetic standard of government institutions, Biharis will enjoy greater rights than Americans.

FUNDAMENTAL RIGHT: Let us take this logic further. Since health is surely a fundamental right, health facilities should not commodities for sale. So apparently, we must shut down all private hospitals and clinics which cannot afford to cut their rates to government levels. This logic can be stretched to sector after sector. It can be claimed, for instance, that no restaurant can charge more than a government one since access to food is a fundamental right. Stalin would have approved.

The court wants to reconcile fundamental rights with the fact that incomes are unequal. The wrong, solution is a scheme in which a rich man may buy a luxury car but not a good education. The right solution is to provide a minimum level of education and health for all citizens, and supplement this with scholarships for the poor in private educational institutions and a quota of free beds in private hospitals.

Indeed, it seems to me that the court\’s judgement militates against my fundamental rights. If education is critical to life and dignity, I must have the right to spend all I can to improve my education. Any court judgement that comes in the way is surely unconstitutional.