State action must not be arbitrary but must be based on some rational and relevant principle which is non-discriminatory
Nandkumar M Kamat
Goa has an unsatisfactory educational governance and here who knows whom in the government matters more than the merit of any issue or a good idea or initiative. Politically incorrect people have no future in this culture. The judgement pronounced on February 16, 2021 in the writ petition (filing) Number 83 of 2021 in Vikas parishad, Mandrem versus State of Goa and three others has raised many fundamental issues about sense of maturity and impartiality of the Government in Goa since 2012 besides raising questions on the basic constitutional obligations of the state.
In short, the case of the society which was running Mandrem College of Commerce, Economics and Management was simple and straightforward and was strictly based on perceived, well known educational backwardness and needs of the developmentally neglected Pernem taluka. It was basically the pending issue of the release of the grants in aid from the state public funds. The judgement has raised a number of fundamental questions and as Goa is slowly marching towards next assembly elections people need to think very seriously if they would support a culture of selective discrimination and favouritism after 2022 assembly elections irrespective of any party that would come to power.
The 34 pages judgement of the Goa bench of Bombay would be hailed as a landmark judgment on good and strictly impartial educational governance demanding strict adherence to the oath to declare allegiance to the constitution. But to our horror we see that the spirit of the oath is totally breached in educational governance. The schedule 3, para 5 of constitution has this text for the Chief Minister or Ministers- “I, do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will faithfully and conscientiously discharge my duties as a Minister for the State of and that I will do right to all manner of people in accordance with the Constitution and the law without fear or favour, affection or ill-will.”
The words “in accordance with the constitution” and “without fear or favour, affection or ill-will” are extremely important. Because a simple reading of the 34 pages judgment shows us that there were “favours” for three politically correct parties and “ill-will” only towards politically targeted Vikas Parishad, Mandrem. The advocate general, obviously on the instructions of the government, sought the dismissal of the petition by stating the position of the government. He submitted “that though the concept of equality is ingrained in the Constitution of India, the said concept would not involve the idea of absolute equality amongst all, which may be a physical impossibility and though Article 14 may guarantee similarity of treatment but it do not ensure identical treatment and mere differentiation or inequality of treatment does not per se amount to discrimination and whenever an action is deemed as violative of Article 14, it is necessary in the first place to ascertain the policy underlying the statute and the object intended to achieve.” The bench then observed-“since the grant-in-aid, according to the learned Advocate General, cannot be claimed by way of right, what is to be seen is whether the decision making process of the State if discriminatory or arbitrary and obviously according to him, the case of the petitioner was taken up for consideration, processed through various departments and ultimately a decision is arrived that the petitioner’s institute is not entitled for grant-in-aid and the decision is justifiable one as can be seen through the noting placed on record.”
The comments made further in the judgment are extremely important for the future of Goa’s educational governance. Sample this- “From the noting of the finance authorities and the returns filed, it appears that an impression persists that merely because grant-in-aid cannot be claimed by any educational institution as a matter of right, correspondingly there is absolute and unfettered discretion vested in the State to grant or deny grant-in-aid. This is not correct. There is no such absolute and unfettered discretion vested in the State. In the exercise of discretion, the State is bound, inter alia, by principles of reasonableness, good faith, and equality. Relevant considerations have to be taken into account and irrelevant considerations eschewed. The discretion cannot be exercised with an unequal hand or in bad faith.”
The learned judges further observed- “The principle underlying equality clause under Article 14 is well settled and the right to equality means not only the right to be not discriminated but also ensures protection against any arbitrary or irrational action of the State. Any administrative or executive action which is found to be arbitrary is liable to be struck down. Arbitrary action is the one which is irrational and not based on sound reason and may the one which is unreasonable.”
Making an important observation on the whole issue of poor educational governance observed in this case the judgment remarked, “The rule emanating arbitrary action by Government flows directly from the doctrine of equality embodied under Article14 and it is now well settled that Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment.”
Educational decision makers in the government, who are custodians of public funds and public trust need to understand the following comments very seriously to end the use of government machinery to launch proxy political wars and favour only the politically correct entities. The judgment advised- “It requires that the State action must not be arbitrary but must be based on some rational and relevant principle which is non-discriminatory, it must not be guided by extraneous or irrelevant provision because that would result in denial of equality.”
Here comes the warning for the violators of the constitutional oath-“When the State Government exercise any powers, statutory or otherwise it shall not discriminate between two persons and if the exercise of the said power is found to be violative of equality clause, it would be struck down as being arbitrary and capricious.
Exercise of such power is the antithesis of equality before law. The action of the State Government is hit by Article 14 of both the aspects being discriminatory and also being arbitrary. It is not permissible for the State to act as per its whims and fancies to suit some chosen few, while distributing its largesse and it is expected to act reasonably and fairly while dealing with the grant-in-aid, though discretionary.” It would be a shame if the government challenges this judgment in the Supreme court at public costs.