Husain Aanis Khan: Constitutional Avoidance by Administrative Law Principles

Courts in common law countries – including India, Australia and the USA – often claim to be committed to a doctrine of constitutional avoidance. By this doctrine, courts interpret statutes in ways that avoid difficult constitutional questions where it is unnecessary to answer those questions to decide the case. The doctrine of constitutional avoidance is related to other substantive constitutional law doctrines animated by the value of judicial humility, such as the doctrine of precedent, the incremental approach to constitutional change and the idea of ‘decisional minimalism’.

In this post, I argue that the Rajasthan High Court should have practiced constitutional avoidance in the recent decision of School Development Management Committee v. State of Rajasthan Civil Writ Petition No. 16367/2021. That case concerned a challenge to the establishment of English language schools in what was previously a Hindi language education context in India. While the Court in that case grounded its judgement in constitutional provisions, it could and should have reached the same result by applying administrative law principles. As I will explain, constitutional avoidance was desirable in that case because: (a) the reliance on constitutional provisions in the judgement was unnecessary and led to an internal inconsistency; and (b) the former policy of teaching students in Hindi generated a legitimate expectation that they would continue to be taught in that language, which legitimate expectation should have been recognised and protected in the judgement of the Court.

Facts of the case

The Chief Minister of Rajasthan, the largest state in India, proclaimed in a speech the establishment of English language schools in each village and town of Rajasthan with 5000 or more inhabitants. If that proclamation had been implemented, it would have effectively converted the medium of instruction of the schools in the region from Hindi to English. The concern of the petitioner, viz, the School Development Management Committee (“SDMC”) of Shri Hari Singh Sr. Sec. School (“Hindi school”), was that the conversion would close down their school. SDMC is an authority established in every school in accordance with the Right of Children to Free and Compulsory Education Act 2009 (“RTE Act”). The SDMC discussed the desirability of an English language school and resolved that an English language school would be established in a vacant building of the Hindi school. The Department of Education of the State Government of Rajasthan nevertheless issued an order to convert 345 schools from Hindi to English, one of which was the petitioner’s school.

Aggrieved by the order, the SDMC of the Hindi school resolved that the Hindi school would not be converted because the conversion would negatively affect the future of their students, especially female students. The SDMC made representations to the State Government requesting it not to convert the Hindi school. Not seeing any change in the position of the State Government, the petitioner approached the High Court.

The Court ultimately found for the petitioner, striking down the policy on the basis of two provisions of the Indian Constitution:

  1. Article 14, because the order was arbitrary as it was not based on research, study or intelligible criteria, hence it was antithetical to the right to equality before law.
  2. Article 19(1)(a), because children at the Hindi School had the right to choose the language of instruction under the right to freedom of speech and expression.

What went wrong in the judgement

Courts in the past have delivered judgements concerning social rights solely on the basis of administrative principles without referring to fundamental rights. The avoidance of constitutional rulings in cases like these – where the same remedy could be granted using administrative law principles – has been preferred to guard against the implications of constitutional guarantees becoming uncontrollably wide or internally inconsistent.

An example of uncontrolled constitutional implications arising from a failure to practice constitutional avoidance is the case of Mohini Jain v. State of Karnataka. There, the Court held that the right to education was a fundamental right under Article 21 of the Indian Constitution in the context of a case about medical education. A year later, the Court in Unnikrishnan v. State of Andhra Pradesh partially overruled the earlier case to confine it. The earlier judgement could and should simply have held that charging a ‘capitation fee’ was ultra vires under the relevant legislation, rather than resorting to constitutional principles.

Similarly, in the present case, the Rajasthan High Court could have held the change in language policy to be ultra vires because it violated section 29(1) (ie curriculum to be specified by the State Government) and section 29(2)(f) (ie children must be taught in their mother tongue) of the RTE Act. This would have allowed the Court to avoid asking the question of whether changing the language of the schools violated the students’ freedom of speech and expression.

Another alternative in the present case would have been to premise the judgement on Wednesbury or natural justice principles on the basis that the state’s decision to issue the change of language policy without the consent of the SDMC was legally unreasonable or procedurally unfair. The focus of the judgement thus should have been the administrative failure to seek the consent of the SDMC. A judgement on these administrative law principles could have created a guide for administrators and the public on what is expected before similar policy changes in the future.

Instead, the Court held the State Government’s order was arbitrary and violative of Article 14. Yet it is difficult to see how that was necessarily so in circumstances where the State had relied in part on public demand for English schools (and thus there was an element of public interest underpinning the order). If not completely avoiding the Article 14 analysis, the Court could have at least referred to Wednesbury principles to assess the arbitrariness and unreasonableness of the order.

Having held that the order to convert the medium of instruction was unconstitutional, the Court at the same time empowered the SDMC to decide whether the conversion should happen. This leaves open the possibility that the SDMC will decide to convert the medium of instruction to English despite the holding that such a result (at least on the facts as they were presented to the Court) was unconstitutional. There is an obvious internal inconsistency in this result that could have been avoided by not commenting on the powers of the SDMC. An approach more consonant with decisional minimalism would thus have made the judgement more coherent.

Legitimate expectations

The most obvious non-constitutional basis on which the case could have been decided was the contested administrative law doctrine of legitimate expectations. Students and parents had a legitimate expectation that students would continue to be taught in Hindi because the former policy created a bilateral relationship between them and the State Government. In other words, the relationship generated an implicit promise to students and their parents that the medium of instruction would be Hindi only and would not suddenly switch to any other language. The order by the Department of Education broke that promise and frustrated those legitimate expectations.

Conclusion

The purpose of the above discussion has not been to suggest that constitutional remedies must always be avoided. If we tweak the facts of the present case slightly, such that the language in question was a regional language which was protected by Article 30 of the Indian Constitution, then giving a constitutional law remedy would have been important for symbolic and expressive purposes. However, because the group of students in this case was diverse and did not have any specific regional or religious identity, the Article 30 issue could have been avoided and the case better dealt with using administrative law principles. Such an approach would still have provided guidance to future decision makers on the importance of consulting academic authorities before making major linguistic and educational policies.


Husain Aanis Khan is a Research Fellow at the Vidhi Centre for Legal Policy, New Delhi, India.

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