‘The blanket exemption granted to minority educational institutions (both aided and un-aided) from the purview of policy of creating an inclusive social order by the Parliament is not justified’ in view of the law which guarantees fundamental ‘right to education’ ‘to all children’ in terms of ‘right to access education’.
Under the framework of Indian constitution, right of children to universal elementary education is blessed not just twice but thrice. Realizing the potential value of education in shaping the fabric of emerging social order in independent India, the founding fathers of our Constitution incorporated the provision of free and compulsory education for all children until they complete the age of fourteen years. Initially, such a provision under the original article 45 was envisaged as an integral part of the directive principles of state policy contained in Part IV of the Constitution. In view of the very nature of this right, coupled with the stark reality of pervasive poverty and ignorance, it was made society-centric by putting it into the basket of ‘socio-economic’ rights and not ‘civil and political’ rights enforceable in the court of law at the instance of affected individual(s). Such is the eloquent declaration made under article 37: “The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall bethe duty of the State to apply these principles in making laws.” In this constitutional ambience, hopefully, the basic right to education was to be realized within the time-period of ten years from the commencement of the Constitution. We may count this as the first blessing.
However, this singular objective somehow or other failed to materialize despite the generous extensions of the promised period repeatedly during the past more than six decades. All along it remained more or less simply an ‘endeavour’ on the part of the State. Here came the second blessing through the intervention of the Supreme Court. In the discharge of its bounden duty of laying down the law by interpreting the spirit of the constitution under article 141, the Supreme Court read this basic right to education implicit within the ambit of the guaranteed fundamental right to ‘protection of life and personal liberty’ under article 21. This reading remains unaltered despite the overruling of Uni Krishnasn (1993) by the majority court in 11-Judge bench decision in T.M. Pai Foundation (2002). Through this judicial fiat, ‘unenforceable’ ‘endeavour’ is instantly transformed into ‘enforceable’ obligation of the State.
The third blessing we may count in the insertion of new article 21-A by the Constitution (Eighty-sixth Amendment) Act, 2002, with effect from 1st April, 2010, which guarantees fundamental ‘right to education’ ‘to all children’ in terms of ‘right to access education.’ ’ Unlike the other fundamental rights enumerated in Part III of the Constitution that are invariably couched in prohibitions on the part of the State, right under article 21-A commends positively by proclaiming: “The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.”
The clear constitutional concern of article21-A is that the State is obligated to provide ‘free’ and ‘compulsory’ education to all children in time-bound manner. For achieving this tall objective, the State is empowered to initiate all kinds of multiple measures by enacting suitable law. Accordingly, the Parliament enacted the Right of Children to Free and Compulsory Education Act, 2009, the enforcement ofwhich, as if to avoid any time lag between the constitutional commandment and its commissioning into action, was made coterminous with that of the newly inserted article 21-A itself, namely with effect from April 1, 2010.
The intended beneficiaries of free and compulsory education under the new legal regime are essentially those children whose parents, owing to their lack of financial resources, are unable to send them toschool. One of the strategies envisaged by the Act to accomplish this gigantic task is to make use of all the available recognized existing schools imparting elementary education in the first instance, irrespective of the fact whether they are owned, aided or un-aided by the State. For this purpose, under section 12(1)(c) of the Act the State is empowered to make it mandatory for them to admit in Class I, to the extent of at least 25% of strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide them compulsory elementary education till its completion.
The constitutional validity of the Act of 2009 was challenged before a Three-Judge bench of the Supreme Court in Society for Un-aided Private Schools of Rajasthan v. Union of India and Another (2012). The challenge was on grounds of violation of fundamental rights mainly in two respects: one, the provisions of section 12(1)(c) of the Act violate the fundamental right of un-aided minority educational institution under Article 30(1) of the constitution; two, these provisions also infringe the fundamental rights of un-aided nonminority educational institutions under Article 19(1)(g) read with its clause (6).
Response of the Three-Judge bench of the Supreme Court on both the counts is divided. S.H. Kapadia, CJ (for himself and Swanter Kumar, J.) holds that section 12(1)(c) is unconstitutional vis-à-vis unaided minority schools inasmuch as it infringes their fundamental freedom guaranteed to them under article 30(1) of the constitution, whereas it is constitutional in respect of un-aided non-minority educational institutions because the conditions imposed upon them under article 19(6) are reasonable to restrict their fundamental right under article 19(1)(g) of the constitution.
On the other hand, in the considered opinion of K.S. Radhakrishnan, J., (representing the minority view), both un-aided minority and non-minority educational institutions stand on the same footing. As such they fall outside the reach of State in exercising its regulatory power under article 19(6) read along with the right under article 19(1)(g) in terms of section 12(1)(c) of the Act of 2009.
Interestingly, both the opinions derive their respective support and sustenance from the exposition given by the 11-Judge bench of the Supreme Court in T.M. A. Pai Foundation (2002). Since I had the privilege of critically examining this case soon after the judgment was delivered, and my analysis was published in 2003, it would be in order to extract a passage relevant to resolve the issue relating to unaided minority schools:
“Thus, there are two distinct domains of educational institutions. One refers to educational institutions that have been set up by minorities ‘at their own expense’ for the purpose of conserving their ‘distinct language, script or culture’. In this domain, minorities enjoy almost unrestricted freedom and the state is not supposed to interfere except perhaps on such grounds as ‘public order’, ‘morality’ or ‘health’. …
The second domain of educational institutions is the one whose prime purpose is not to conserve a particular language or culture but to impart, say, professional education in the field of medicine or engineering. These institutions invariably require the state support by way of recognition or affiliation to a university with or without aid. In this domain, minorities exercise their right, not qua minorities, but qua citizens, and, thus, instantly become subject to the discipline of article 19(6) as well as of article 29(2).”
[See, Virendra Kumar, “Minorities’ Rights to Run Educational Institutions: T.M.A. Pai Foundation in Perspective,” Journal of the Indian Law Institute. Vol. 45, No. 2 (2003), 200-238, at pp. 225-226]
The following 93rd constitutional amendment in 2005 bears the resonance my analysis in its new clause (5) to article 15 of the Constitution, which states:“Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to the educational institutions including private educational institutions, whether aided or unaided by the state, other than the minority educational institutions referred to in clause (1) of article 30.” [Emphasis supplied]
However, the blanket exemption granted to minority educational institutions (both aided and un-aided) from the purview of policy of creating an inclusive social order by the Parliament is not justified. To this extent the majority decision of the Supreme Court in Society for Un-aided Private Schools for not taking out at least the aided minority schools from the ambit of section 12(1)(c) of the Act of 2009 is not only in conformity with the principle laid down in T.M. A. Pai Foundation (2002) but also stands by the spirit of article 21A as substantively reflected in the provisions of the Act of 2009.
It needs emphasis to state that enactment of article 21-A into the Constitution with effect from 1st April, 2010, is post 11-Judge bench decision in T.M. A. Pai Foundation (2002), 7-Judge bench decision in P.A. Inamdar (2004), et al., its spirit, without being arrested by past precedents, should be expounded in terms that obliges the State to meet the challenge of providing free and compulsory education to all children within the severe constraint of resources, both men and material. The commensurate wherewithal to carry out this obligation given to the State includes the power of granting certificate of recognition under section 18 of the Act of 2009, which, in our view, is much more valuable than all the material gains put together. In our respectful submission, the potential power of this ‘recognition’ needs to be judicially recognized, especially more when it is conditioned to fulfil the constitutionally proclaimed objectives. Such recognition, it is stressed again, would instantly dissolve the invidious distinction between aided and unaided minority educational institutions that are established not just to conserve their cultural rights, language, script, etc. but to impart market driven professional education.
www.grandmasters.in | 8 Years & Counting
www.rcls.in | 8 Years & Counting
www.itlegalsummit.com | 8 Years & Counting
www.bfls.in | 8 Years & Counting
www.maels.in | 8 Years & Counting
www.plcs.co.in | 8 Years & Counting
Copyright © 2020 Lex Witness - India's 1st Magazine on Legal & Corporate Affairs Rights of Admission Reserved
