Part 3
Former Chief Justice Sarath N Silva also stated that the requirement stated by Brewer J., in the case of Gulf Colarado and Santa Railway Co. v Ethis has been subsequently stated as the ‘Basic standard’ to be satisfied in a permissible classification. The Supreme Court applied the classic formulation of the basic standard stated in the case Royster Guano Co. v. Commonwealth of Virginia (1920) at page 415. It reads as follows:
Classification must be reasonable not arbitrary and must rest upon some ground of differences having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.
The Supreme Court stated that the broad phrase ‘National Policy’ appearing at the top List 11 should be interpreted with the relevant provisions in Chapter VI of the 1978 Constitution which contains the ‘Directive Principles of State Policy’. The limitation in Article 29 which states that the provisions of Chapter VI are not justiciable would not in the view of former Chief Justice his SN Silva be a bar against the use of these provisions to interpret other provisions of the Constitution. Article 27 of Chapter VI lays down that the ‘Directive Principles of State Policy’ contained therein shall guide ‘Parliament, the President and the Cabinet of Ministers in the enactment of the laws and the governance of Sri Lanka for the establishment of a just and free society’.
As regards education, the policy objective as referred to by the Court is stated in Article 27(2) (h) of the Chapter VI of the 1978 Constitution which is not justiciable under Article 29 of the 1978 Constitution as follows:
‘The State is pledged to establish in Sri Lanka a democratic socialist society, the objective of which include - …… (h) the complete eradication of literacy and the assurance to all persons of the right to universal and equal access to education at all levels’.
The Supreme Court also stated that equal opportunity in the matter of education was held by the Supreme Court of the United States to be a requirement of the Equal Protection Clause (Similar to Article 12 of our Constitution) of the 14th Amendment to the US Constitution. The Supreme Court also referred to the judgement, Brown v Board of Education Topika where the Chief Justice Warren delivering the opinion of the Court stated as follows:
‘Today, education is perhaps the most important function of the State and the Local Governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic responsibilities, even service in the Armed Forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values in preparing him for later professional training and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity where the State has undertaken to provide it, is a right which must be right made available to all on equal terms.
The Supreme Court stated that the classification in the Circular in question is not based on the suitability and the need of a particular child to receive education in a National School or any other State school. The Court noted that “The extent to which the suitability of the child is excluded from the process is seen from the fact that no marks whatsoever are attributable on that account.” The classification underlying the Circular in question is based on wholly extraneous considerations. Similarly the system of weighted marking referred to as contained in the Circular completely defeats the objective of providing equal access to education. Therefore the Supreme Court held that the Circular in question applicable in the matter of admission of students is inconsistent with the fundamental right to equality before the law and the equal protection of the law guaranteed by Article 12(1) of the 1978 Constitution, in so far as it relates to the admission of students to Grade I of National Schools and other schools to which the Circular has been made applicable.
As noted by the Supreme Court the authorities have failed over the decades that elapsed to provide an effective legal machinery to manage, regulate and supervise education. The Ministry of Education appeared to have formulated the Circular as the purported national policy outside the framework of the law, which fact by itself would suffice to declare invalid. Section 2 of the National Education Commission Act No.19 of 1991 empowers the President to declare from time to time the national education policy which shall be conformed to by all authorities and institutions responsible for education in all its aspects. The policy is formulated on the recommendations and advice of the Commission and in terms of section 2(2) includes, inter alia: “……. Methods and criteria for admission of students’.
In the view of former Chief Justice SN Silva, this is the proper guideline for the formulation of a policy. The Ministry fell into error by laying down classifications, quotas and a system of weighted marking being elements completely antithetic to the guarantee of equality before the law whereas the focus should be on appropriate methods and criteria that would apply in the process of effecting admissions. In the situation that has arisen, the Supreme Court was of the view that it is appropriate for immediate action to be taken in terms of the National Education Commission Act for the formulation of a policy setting out methods and criteria for admission of students.
Therefore, the Supreme Court held that,
(1) The national policy of school admission to be formulated may be submitted to the Court for the policy to be examined from the perspective of the fundamental right to equality before the law and the equal protection of the law guaranteed by Article 12(1) of the 1978 Constitution.
(2) S.C applications 10 to 13 – 2007 are allowed and the petitioners are granted the Declaration that their fundamental rights guaranteed by Article 12(1) of the Constitution have been infringed by executive and administrative action.
(3) It is further declared that the Circular in question is inconsistent with Article 12(1) of the Constitution and is invalid and of no force or avail in law in respect of admission of students to Grade I in the schools to which the Circular is addressed.
Here the Supreme Court not only struck down the circular in question which is the normal nature of a judicial order and nothing more, but also went a step further and ordered the educational authorities to reformulate and resubmit the same to the court for its examination as a remedial checkup in terms of the guideline as per the judgement to which such authorities later complied with. This is the true nature of judicial activism within the parameter of law in pursuing social justice to expedite executive remedial action, as pioneered by the Indian Supreme Court. This Course of action is contrary to at least initial conventional doctrinal English Jurisprudence.
* Seneviratne v. University Grants Commission (1978-80)
Seneviratne v University Grants Commission concerned admission to universities. In this case the scheme of admission to the Universities provided for 55% of the places available to be distributed on the basis of the ratio of population among the 24 administrative districts; 15% of the places were to be apportioned at the discretion of the University Grants Commission among 13 districts which were considered to be underprivileged and 30% of the places were to be decided solely on merit. The challenge was directed to the said allocation of the 55%. The petitioner relied on the judgement of the Supreme Court of India in Rajendran v. State of Madras (1968).
In that case, the Supreme Court of India struck down a rule which laid down district wise distribution of seats in the State Medical College on the basis of the ratio of the population of each district to the total population of the State. It was pointed out that there was no nexus between such distribution and the object to be achieved viz. admission of best talent among the candidates. Fixation of district-wise quota on the ratio of the district population to the total state population for admission to the State Medical College is discriminatory. Basically any district quota is discriminatory, for quota means that as between two candidates of equal merits coming from two different districts the candidate belonging to one district is preferred to the other, just because he comes from the wrong district whose quota is filled up. Deserving candidates will be frustrated by reservation for the less deserving persons. The test applied to adjudge the validity of any reservation is whether it is based on any rational and relevant principle.
The respondent University Grants Commission submitted to Court that by reason of the educational-socio-economic circumstances of Sri Lanka and the unequal secondary educational facilities provided mainly by the government, the determination of entry to the Universities based solely on the aggregate of raw marks of a candidate cannot be accepted as the sole criterion for higher education. Wanasundera, J. upholding the classification stated that “the increasing number of students pressing for admission and the woeful lack of teachers and facilities in most of the provinces had compelled the authorities to modify the merit principle to meet the ends of justice. The departure from the merit principle, though unfortunate, is inevitable. His Lordship referred to, with approval, Kesavananda Bharati v. State of Kerala and State of Kerala v Thomas where the Indian Supreme Court had given the Directive Principles a place of honour in the Constitution-they “constitute the conscience of the Constitution”.
To be continued
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