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And the winner is: We the people

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Narasimhan Vijayaraghavan
Narasimhan Vijayaraghavan
The author is practicing advocate in the Madras High Court

The proceedings before the Division Bench of Justices Vineet Kothari and R. Suresh Kumar, Madras High Court, on the challenge to the conduct of Tenth Standard State Board examinations from 15th June, 2020, made fascinating reading. No one in his right senses was arguing against the precept and practice of ‘examinations’ in schools. Surely, not the High Court. The one question the learned judges posed was pointed and poignant. It could not have possibly nailed the options better – being evaluated by the State Government.

That was, “Whether the State Government could guarantee that not one student taking the examinations would not contract Covid-19?”. It was too tough a poser to be answered straight and honest. That possibly clinched the issue for lakhs of students and their families to heave a huge sigh of relief. Let us critically examine the question shot by the Learned judges, on a constitutional construct.

Ordinarily, it is a policy decision for the Executive to take a call. Whether to hold the examinations or the schedule thereof? Judiciary has little say in it. The Court cannot be expected to weigh the available choices and decide for the Executive. The ‘inputs’ necessary, such as medical advice, views of health experts, logistics support, compliance with social distancing norms, travel of students and their parents to the venues and back, the attendant risks, and provision of security support to teaching and support staff, the whole works, are exclusively with the State. The implications arising from the conduct or non conduct of such examinations also, is within the purview of the education department, within the domain of the Executive. Judiciary is hardly qualified to step into the shoes of the State and make the decision for them.

We earlier had the spectacle of the TN State Government, ‘compelled and constrained by financial stringency’ choosing to open TASMAC shops to vend liquor to the thirsty tipsters. The Madras High Court chose to intervene, not wholly barring the re opening of the Bars, but by imposing several conditionalalities, which the State felt ‘were practically neither necessary nor possible to implement’. Surely, the High Court did not ask any ‘guarantee from the State that not one drunkard would get afflicted by the Pandemic virus’. Not a logical question then, as the option lay with the customer to go stand in a serpentine queue or not. Not so with school children, under compulsion to sit for the examinations, despite these extraordinary times.

That we live in abnormal times is undeniable. Even the High Court chose to ‘resume sitting of Judges from Court halls/chambers’ though on the videoconferencing route, but had to abort and abandon the attempt within a week, as a few judges themselves contracted the virus. The Division Bench must have factored in the quicksilver stay order granted by the Supreme Court to its TASMAC order. Notwithstanding the noble sentiments involved and the ‘popular support’ for it, the interim orders of the Madras High Court did not pass muster before the robed brethren on the national pulpit.

So, the High Court played safe and cautious. They did not choose to ‘make the decision for the Executive’ which they were aware may run foul of the constitutional scheme of power sharing . Instead, they engaged the State in a bout of or exchange of volleys. They kept returning the serves from the State vigorously and kept passing them on the net, with difficult return of serves. The State kept standing up assuming that they could prevail as they too had the interest of the children at heart, and ultimately it was the territory of the Executive, which they cannot be seen to be yielding, no matter what. Obviously, at the back of the mind of both the State of TN and the High Court would have been the curt interference by the apex court, in the matter of TASMAC issue.

It was a strategic battle of nerves between not actually competing interests, for larger good, with lakhs of school children and their families, caught in the middle of the muddle. Adding to the discomforting query posed by the High Court on the ‘guarantee’ from the State, was the allied poser as to what other States, similarly placed, had chosen to do. Possibly aware that Telengana was the most recent State to skip examinations this curriculum.

The twin missiles served from the Bench, were sufficient for the State to pivot from its rather exploratory rigid stand, to go ahead and cancel the slated examinations. In fact, they have gone beyond and cancelled examinations for eleventh standard and even left over examinations for Plus Two as well. Well done.

All is well that ends well. It was a battle of wits in which neither the Executive nor the Judiciary won. Neither was seen to be giving a quarter. Yet, not being seen to be holier than thou. It was in the end, a win for pragmatism. Neither side lost. Everyone, all the stakeholders won in the end.

It was smart strategy from the High Court to have not rushed into any interim order. It may have been tempting to do so. It would have earned plaudits for it had popular support. But the High Court tactically held back and the result is a huge relief for the citizens.

In fact, as it was the third round of a similar challenge, it may have been easy for the High Court to nix it. But it is to the lasting credit of the Learned judges that they did not rush into a decision either way. but chose to play thrust and parry with the State. Yes, let us also applaud the State for not standing on prestige to vindicate their turf supremacy. This was not that occasion. We can afford to wait for normalcy to return, for an exciting turf war of such genre.

It required statesmanship not oneupmanship from the Executive and the Judiciary to demonstrate that ultimately who and what matters is We The People.

(Narasimhan Vijayaraghavan- Author is practising advocate in the Madras High Court).

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Narasimhan Vijayaraghavan
Narasimhan Vijayaraghavan
The author is practicing advocate in the Madras High Court
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