“You don’t want the government controlling education” – David Friedman

Anarchist-anachronist-economist. That’s how David Friedman, who is currently a professor of law at Santa Clara University (more about him on his website), describes himself. The son of economists Rose and Milton Friedman, David studied physics and chemistry at Harvard.

Prashant Narang: Welcome to India, David. You hold no formal education in economics and law, yet you teach these subjects. Durga Das Basu might have been one such rare example in colonial India. One cannot teach without a degree in India. How do you think we can get to a system where the competence of a person is determined by something other than the certificates he holds?

Professor David Friedman

Professor David Friedman

David Friedman: In the United States, most people hold doctorates in concerned professions, not all – but most. My uncle for instance, an important person, started law and economics, was a professor at the University of Chicago and held only an undergraduate degree. He had written a book and was associated with the University of Chicago for a long time. So it is not impossible but it also was certainly not easy. There is however, no legal restriction of the sort.

Even in practice a university might hire a professor whose doctorate was in a different but related profession. So it is not really that surprising for a physics department to hire someone with a doctorate in mathematics or for the economics department for that matter.

PN: As a recent trend in India, private universities are coming up. While they provide state-of-the-art facilities, the fee structures are exorbitant. Do you think such a system would promote merit?

DF: Presumably over time you can have more than one private university or law school. What prevents others from existing?

One of the things that struck me while in India is that while India seems like the most egalitarian country in the world, there is a vast gap between the rich and the poor. There are stores with very expensive things in them and then there are people sleeping on the streets. I suspect that these two are not unrelated. One of the results of a society where you need certificates and permits for everything is that it is very hard for you to rise. This is true even in the US. There are restrictions. The Institute for Justice (IJ) has dealt with certain such cases of restrictions with regards to who can enter certain professions. These restrictions make it very hard for someone who doesn’t have the money or connections to rise. So I wonder if in fact the regime and style of the Indian government is one of the reasons why it has such striking poverty than you would normally expect from it.

PN: Education institutions, be it primary, secondary, or tertiary, in India – have to be “not-for-profit”. Education is supposed to be a charitable activity and no one should be making profits out it.

DF: If people have a better way, a cheaper way, and know how to do a better job, to figure out best ways of teaching and have an incentive in the sector, they will invest. If the government feels that for-profits are evils, then surely the government officials should accept a reduction in their wages.

Also, by that logic, even restaurants and farms should be for non-profit. Surely food is more important than education. Why not follow the same principle.

This is very odd. One charitable activity is feeding hungry people. My wife’s church for example, every once in a while, has a dinner for the homeless people. But the fact that it is charitable does not mean that feeding people in a restaurant or having a farm – for money, is illegal. So if people wish to provide charitable education, that’s fine, but there is no reason to forbid those who don’t.

PN: Private schools in India, by law, have to provide reservations of 25 per cent to economically weaker and other backward classes. Or should there be more government schools?

DF: You have all these laws that are supposed to help poor people do better, yet you have an enormous number of people who are poor. Shouldn’t you at some point think you are doing something wrong?

In China, after Mao died, various leaders went abroad and were able to see how the rest of the world was living and while they believed that socialism was right, they realized they were doing something wrong. India has all sorts of interventions to help the poor. She claims to be in favour of equality, when in reality it appears that it’s all about the large imposing governmental bungalows with open spaces and gardens on one side and over-crowded housing, business spaces etcetera, for everybody else on the other.

If you require more private schools for education, it means there are fewer private schools and more governmental schools –which also implies an obvious control of the government over education.

There are a couple of arguments why education should be paid by state. More societal productivity is one. Well, if you build a factory, the factory too will be more productive for the society. Getting educated in ways that make you more productive is investing in more human capital. In a market system when you insist on more human capital, most of the return goes to you because you get a higher wage.

Now, that may be less true in India, I don’t know how much of the wage goes to the government in one-way or another. As a general rule, getting education is just a form of capital investment in people and it is not true that my being productive automatically makes you better. You may be a competitor, you may be a customer, but most of the gain of my being productive goes to me.

The other argument is that you need to have educated voters in a democracy so they all vote correctly. Here specifically, you don’t want the government controlling education – they will teach people what they want them to believe. It is hard to tell if education can ensure that people will vote correctly. This is simply because an ordinary voter – not just has very little incentive to vote, but it also affected by various factors. William Buckley said “he’d rather be ruled by a 1000 random people pulled out of the New York telephone book at random, than by the faculty at Harvard; simply because the faulty at Harvard has a fairly uniform set of political bias.”

PN: Thank you, David, for your time.

(Prashant Narang is an advocate with iJustice, a CCS initiative.)

Supreme Court of India

Supreme Court’s pragmatic approach shields right to education amendments from basic structure challenge

In an important judgment this week, the Supreme Court upheld Articles 15(5) and 21A of the Constitution of India against a basic structure challenge.


In Ashoka Kumar Thakur (2008), a Constitution Bench had upheld the validity of Article 15(5), save for its application to private un-aided educational institutions. That question had been left open for another day, and was finally answered this week. Alongside it was the question of whether Article 21A, which guarantees the right to a free and compulsory education between the ages of six and fourteen, is consistent with the basic structure.

It is trite knowledge that Kesavananda Bharati v. State of Kerala established the proposition that Parliament, in the exercise of its amending power, cannot “damage or destroy” the Constitution’s basic structure. Over the years, basic features of the Constitution have been identified in the language of abstract principle: separation of powers, the rule of law, a democratic and republican form of government, secularism, judicial review, and so on. In this case, the petitioners made a novel claim: Article 19(1)(g), which guarantees the freedom of occupation, was a basic feature, and that Article 15(5) eliminated it entirely. It was argued in addition that by “treating equals unequally”, there was an Article 14 violation as well.

GautamBhatia_SupremeCourtofIndiajpgIf you find something odd about these claims, you’re right. Typically, Articles 14 and 19(1)(g) are invoked to challenge the constitutionality of a law. Here, however, it is not a law that is at stake. A Constitutional right itself is being attacked for violating other constitutional rights. Thus, we have the odd argument that some constitutional provisions stand in a hierarchical relationship above others. This cannot be right. It is precisely to avoid this manner of claim that the Supreme Court, over the years, has steadfastly refused to locate the basic structure in any one provision, but has understood it to embody abstract principles that underlie and justify concrete provisions.

Admittedly, some provisions are integral to the basic structure. Undoubtedly, if Parliament simply repealed Article 14, thus removing the anchor for the principles of “equality before law” and “rule of law”, a basic structure challenge would be sustained. Arguably – although more controversially – eliminating Article 19(1)(g) from the Constitution altogether would violate the basic structure. Article 15(5), however, does nothing of the sort. It just carves out a fairly narrowly drawn exception to Article 19(1)(g): that the Article will not apply only to the special provisions aimed at advancing socially and educationally backward classes. This language is familiar to us from Article 16(4), and leaves ample scope for judicial review, as is evidenced from sixty years of affirmative action jurisprudence, which has placed substantial limits both on the government’s identification of beneficiaries, as well as the extent to which reservation is permitted. Admittedly, it goes against a strictly formalistic, colour-blind vision of equality, but so do all reservation provisions under the Constitution – Articles 15(4), 16(4), 16(4A) and 16(4B).

These were precisely the arguments that the Court used to reject the basic structure challenge. Article 15(5), insofar as it sought to equalise the educational opportunities of members of socially and educationally backward classes, did not destroy equality. Rather, it adopted a group-and-context sensitive vision of equality that took into account historic and continuing structural subordination in determining present allocation of resources. As the Court has held before, the Constitution holds both these visions of equality in balance. Therefore, it also clarified – correctly, in my opinion – that Article 15(5) would not prevent it from reviewing laws on the touchstone of Articles 14 and 19(1)(g). Article 19(1)(g), for instance, would continue to apply if the government failed to demonstrate that the requirements of Article 15(5) were satisfied. Article 14 would continue to apply in all cases. For example, if the government imposed an 80% reservation requirement on private schools, it is likely that the Court would not find it to fall within Article 15(5) at all, and almost certain that it would strike it down under Article 14.

In challenging Article 21A, the petitioners made another curious argument.


The Right of Children to Free and Compulsory Education Act, 2009, (“RTE Act”) as is well known by now, requires private, un-aided schools to accept 25% of their total admitted students from underprivileged backgrounds. The petitioners used this to argue that because Article 21A imposed constitutional obligations upon private parties, it violated the basic structure. Naturally, the Court gave short shrift to this argument. Article 21A does nothing of the sort. It provides a right to education that is enforceable against the State. Under the RTE Act, the State carries out its obligations by imposing certain regulations of admissions upon private schools. While that might raise constitutional questions about the Act, it does not, in any way, affect Article 21A itself.

Of course, the constitutional validity of the RTE Act – including the 25% requirement – was challenged, and upheld, in Society for Un-Aided Private Schools of Rajasthan v. Union of India. After having upheld the validity of Article 21A then, the Court needed to go no further. It clarified, however, that while Article 21A vested in the State the power to make law to discharge its educational obligations, the scope of that Article – and consequently, the scope of the power it conferred upon the State – would still be interpreted harmoniously with Articles 19(1)(g) and 30. Consequently, a law made under Article 21A would continue to be tested for reasonableness under Articles 19 and 30. Notice how this analysis mirrors the Court’s analysis of Article 15(5), and leaves it with maximum judicial wiggle room to examine laws as and when they are made.

LR-BlogAdHarmoniously construing Articles 21A and 30(1), the Court held that the minority institutions’ right to preserve their character necessitated excluding the applicability of the RTE Act to those institutions. It also found that Article 21A provided a basis separate from Article 19(6), for justifying the 25% seat reservation. This, I would suggest was unnecessary. It would have been doctrinally more satisfactory to use Article 21A – as the Supreme Court did in Society for Un-Aided Private Schools – to adjudicate upon the reasonable restriction that the RTE Act placed upon private schools, and uphold it on that basis. The Supreme Court’s opinion, however, implies that we now have two separate bases for restricting Article 19(1)(g) rights: 19(6) and 21A, and it is entirely unclear how these two relate to each other.

Ultimately, the opinion is characterised by pragmatism. The Court maintains its time-honoured tradition of judicial avoidance when it comes to basic structure claims. At the same time, it leaves its hands untied to scrutinise legislation passed under the two amendments on the touchstone of existing constitutional rights, as and when it might come to court.

(Gautam Bhatia blogs at Indian Constitutional Law and Philosophy.)

Human Rights

On the commercialisation of education

Recently the High Court of Andhra Pradesh in Nalanda Education Society and Others v. Government of Andhra Pradesh, while dealing with a challenge to the regulation of fee structure for the pupils studying in the private and corporate schools, took serious cognizance of the general and increasingly strident complaints by parents and students, that there is crass commercialisation of education, which is reaching alarming proportions.

Hon’ble Justice Goda Raghuram speaking for the Bench observed:

“Post Independence, India witnessed a gradual transformation, from an initial stage of the State being the principal provider of educational infrastructure and regulator of formal education to being a supporter (grants-in-aid) and to now being largely a mere regulator, contouring and determining academic and faculty standards and infrastructural norms. The State is steadily and inexorably withdrawing from the funding of educational infrastructure at all levels and is content to merely regulate.  Education is now exponentially and largely a free market commodity. With accelerating privatization and an ever increasing demand for education, alongside well meaning philanthropists committed to altruistic support to education, came the carpetbaggers. The scourge of commercialization of education looms large; education is now big business and is occasionally or often pursued with a cynical and ruthless disregard for the raft of intermeshing values that must substrate a rational, benign and sustainable medium for accretion, dissemination and transmission of the wealth of accumulated human knowledge, within a generation or across generations. The Indian State has now a new and emergent item on its governance agenda – containing the rampaging sociopathy of the commercialization of education.”

Despite these observations, the Court set aside an attempted regulation of fee structure by the Government of Andhra Pradesh as being a misadventure. The Court held that the State must evolve effective and sensitive tools to regulate the educational sphere, to maintain that delicate balance between academic and operational autonomy of private unaided educational institutions and the legitimate Governmental interest in ensuring that these private entities do not indulge in profiteering.

Justice Raghuram observed: “In the matter of fee regulation the State must maintain that delicate balance; between permissible regulation to verify and prevent profiteering and collection of capitation fee by the management of a private unaided educational institution in whatsoever form, garb, guise or camouflage on the one hand and avoidance of undue intrusion into the operational, managerial and academic autonomy of the institution, on the other. This balance is the nucleus and essence of the guaranteed right under Article 19(1)(g). The fee regulating authority must be sensitive to and conscious of the broad spectrum of academic and operational autonomy that inheres in a private unaided educational institution….The instruments of regulation must be nuanced and appropriately calibrated to ensure effective but non-invasive oversight.”

According to the Court, an effective execution of the role of a regulator was possible only through informed discourse and a rational analysis after due consultation with relevant areas of expertise.

A perusal of the judgment drives home hard, the fact that it is high time, that the Governments evolve with utmost expedition, fair and effective instruments to curb profiteering and the collection of capitation fees. However since regulation of the educational sphere ‘is a pious platitude which is not calculated to give any mileage either to the politician or to his political party,’ one wonders if it is time for governments to pass on the baton to independent regulators.

(Pavan Kumar is a Hyderabad-based advocate.)