IV. The Principle of Anti-Hierarchy: How The Nep 2020 Reinforces Historical Structural Inequalities.
Having concluded that Part IV cannot be used in a manner which violates the Part III Rights of an individual or a group in the previous piece, we now discuss certain unarticulated constitutional concerns with the NEP, 2020 which are at odds with the equality jurisprudence in India. These concerns regarding the failure of the policy to observe the fundamental principle of anti-hierarchy on the touchstones of Articles 14-16 of the Constitution are far from trite and remain unaddressed till date.
The principle of anti-hierarchy essentially rests in remedying the historic subordination of a group of individuals based on factors such as caste, race, sex etc. Anti-hierarchy, while advancing the transformative aim of the Constitution, implores us to presume any such legislation to be impermissible, whose impact furthers group discrimination based on historical subordination. As has rightly been argued elsewhere:
“[T]he principle of anti-hierarchy advances the transformative purpose of the fundamental rights chapter: the recognition that true democracy could not exist without ensuring that at a basic level, the dignity and equality of individuals was protected, both from the state as well as from social majorities.”
The essence of this principle was asserted by the Supreme Court in the State of Kerala v. NM Thomas. By holding Articles 15(4) and 16(4) not to be exceptions but restatements of Articles 15(1) and 16(1) respectively, the Court affirmed that the Constitution owes a commitment to the historically subordinated groups which can only be discharged by remedying group subordination by affirmative action. In other words, the Court acknowledged that the essence of equality is not merely in mitigating the further creation of inequality by the State, but also in ensuring that existing inequalities of historically subjugated groups are removed.
This reasoning was emphatically furthered by Justice P.B Sawant in Indra Sawhney v. Union of India where he said that the legal idea of equality was not enough to enable everyone to compete with each other on an equal level playing field. He advocated for real equality while not only emphasising on the equality of opportunity but on the equality of results as well.
These decisions also made it sufficiently clear that an essential facet of mitigating group subordination (through anti-hierarchy) was ensuring that the disadvantaged communities are uplifted to an equal level playing field. This mandate not only involves an obligation to provide education for all, but also involves the obligation to provide a standard quality of education for all. As has already been discussed earlier in the foregoing section, Article 46 of the Constitution has been used to structure the idea of equality defined above, under the Indian Constitution, and not to undermine it. Thus, for the purposes of the present piece, as we see it, the principle of anti-hierarchy, by taking the social goals of Part IV as structuring values for Articles 14-16, ensures that the goals of the Constituent Assembly (as discussed in Part III) do not go unaddressed.
Having briefly discussed the principle of anti-hierarchy, an important point of departure here would be understanding how the NEP, 2020 is at odds with the same on the following two levels:
First, by having bypassed the need for any affirmative action for the socially and educationally backward classes by having omitted the provisions relating to reservation, the policy has not only violated Article 16 of the Constitution, it has also done a disservice to these communities by having dismissed their years of struggle social justice and access to educational opportunities.
Second, the policy lacks any roadmap to ensure that the States remain committed to its goal of spending six percent on education. To this effect, the entire policy only contains a perfunctory reference addressing this objective where it is stated that:
“¶26.4 […] The Centre and the States will work together to increase the public investment in Education sector to reach 6% of GDP at the earliest.”
This perfunctory reference in the absence of a roadmap leads to a situation where such investment and spending is left at the discretion of the respective States. This is essentially because Education forms a part of List III of the Constitution of India. This discretion is further strengthened in light of the fact that the States have not been adequately consulted before NEP, 2020 was released.
Since the spending on education bears a direct causal link with the quality of education imparted, this means that due to the silences in the policy, the quality of education imparted at schools in some States would be better than the quality of education in others. In addition to the above, it is also pertinent to note here that the States which spend the lowest amounts on education are also home to the largest population of backward classes in India. This leads to the following implications. First, it leads to a discriminatory impact on the students inasmuch as, the policy leads to the creation of two separate groups within the class of students on the basis of State expenditure on education. Second and more importantly, it leads to a disproportionate discriminatory impact on individual students of backward classes living in economically weaker States. It is important to note here that discriminatory impact on the individual students is due to characteristics which are not within their control.
In other words, in an attempt to secure its welfare objective of providing education for all, the National Education Policy ends up depriving individual students of the equality of opportunity in attaining quality education, while concurrently disproportionately impacting the students and teachers of historically marginalised and backward classes alike. Moreover, it creates an artificial distinction between similarly situated students which, in turn, is impermissible in terms of the law laid down by the Supreme Court in D.S Nakara v. Union of India. This is essentially because there exists no difference between students who would get a better quality of education and students who would not, except the fact that they live in different States. This approach became evident in the case of Joseph Shine v. Union of India, where the Court interpreted Article 14 in terms of the ‘real impact’ a legislation has on an individual and whether it leads to the subordination of a disadvantaged group of individuals.
The welfare obligations of the State under Article 46 of the Constitution of India which guided the formation of this policy cannot be read without taking into account the principle of anti-hierarchy and equality of treatment enshrined in Part III of the Constitution which assures every individual of the protection of their equality, both from the Sate as well as from social majorities. This sentiment was shared by Dr. B.R Ambedkar in Constituent Assembly Debates on more occasions than one, and was echoed by the Delhi High Court, as recently as 2015 where it said that:
“Education is the foundation on which the society seeks to build its edifice of social harmony. It is the means through which one hopes to root out the divides that exist in society and integrate the country. To the question: what happens when the means to bring equality are inherently unequal? The answer is obvious. The social divide is widened and the nation remains divided.”
This is precisely what the National Education Policy, 2020 misses out on. While it seeks to advance the interests of the ‘Socially and Educationally Disadvantaged Groups’ its means end-up subjugating their interests under the interests of the privileged and meritorious social majorities of the country.
Throughout the course of the present piece, we have discussed how the NEP discounts the need for an equal access to quality education in an attempt to provide for a universal access to education. A National Education Policy after a hiatus of thirty-four years, should have acknowledged the ground realities of the country, while attempting to structurally reform the system to ensure that the commitment of our Constitution to the historically marginalised sections of the society is realised. The inadequate measures in the policy to bridge educational inequalities coupled with its omissions of concrete guarantees for the historically disadvantaged classes, and its silences on issues which affect them, makes the promise of their inclusion in the society, delusional at most.
 Equal amount is required to be mandated instead of GSDP since a higher percentage of GSDP of an economically weaker State will essentially still be less than a lower percentage of GSDP of an economically advanced State.