Rakesh Shukla examines the recent Supreme Court judgment on the Right to Education, which clarified that the obligation on un-aided non-minority schools to admit 25% children from disadvantaged groups is a reasonable restriction on the fundamental right to carry on a business or occupation
The Supreme Court in a recent ruling has upheld the constitutional validity of the Right of Children to Free and Compulsory Education Act, 2009. The legislation had been challenged in a slew of petitions from commercial schools as well as alternative schools. The judgment is reported as Society for Un-aided Private Schools of Rajasthan versus Union of India, 2012(4) SCALE 272.
A look at the legal framework is necessary in order to appreciate the context of the adjudication on the validity of the Act. The Constitution of India guarantees certain fundamental rights like life, liberty and equality. These rights are justiciable and courts can be approached in case of violation. There are certain directive principles laid down which, though not enforceable in court, are fundamental in governance of the country and in making laws.
The initial promise was to provide free and compulsory education for all children up to 14 years within 10 years of the commencement of the Constitution, as enunciated in Article 45 of the Directive Principles. As often happens with good intentions, the promise remained a dream for half-a-century. In the early-’90s the Supreme Court declared that the right to education is a part of the fundamental right to life guaranteed in Article 21 of the Constitution. At the time, the declaration was reported with much fanfare; but nothing changed at the ground level.
The Constitution was amended in 2002 and a new article -- Article 21A -- was introduced as a fundamental right enjoining the state to “provide free and compulsory education to all children from six to 14 years in such manner as the state may by law, determine”. Thus the promise of Article 45 of the Constitution was made a fundamental right in 2002. The Right of Children to Free and Compulsory Education Act enacted in 2009 is the law made by the state to fructify the fundamental right in Article 21A.
The idea of providing free and compulsory education to children was welcomed by everyone. However, there were two principal features of the Act which were attacked as unconstitutional by private schools. The Act prescribes that private un-aided schools are to admit in class I at least 25% children from weaker sections and disadvantaged groups in the neighbourhood and provide free and compulsory elementary education to them. The law provides for reimbursement of the expenditure incurred per child by the state. The second feature causing distress to private schools is the total ban on subjecting the child or its parents or guardians to any screening procedure for purposes of admission.
The main grounds for challenging the law was that the objectionable provisions were a violation of the right of private un-aided schools to practice any profession, or to carry on any occupation, trade or business guaranteed under Article 19(1)(g) of the Constitution. A large number of earlier judgments where courts had been approached by private un-aided professional colleges were cited to affirm the fundamental right to run an educational institution without undue interference from the state.
The Court observed that Article 21A contemplates the right to education flowing from the law to be made by the state. It examined the provisions of the Act and noted that the law gives every child of six to 14 years the right to free and compulsory education in a neigbourhood school till completion of elementary education. The rules provide for setting up of schools within a walking distance of 1 km in respect of children from classes I to V and 3 km for classes VI to VIII. The use of the word ‘free’ in the title of the Act was held to stand for removal by the state of financial barriers that prevent a child from completing eight years of schooling. The Act declares that no child will be liable to pay any kind of fee or charges or expenses which prevent him from pursuing elementary education. The judgment observes that a child who is denied access to education is deprived not only of the right to live with dignity but also deprived of his right to freedom of speech and expression under Article 19(1)(a) of the Constitution.
The upheld law seeks to remove the financial and psychological barriers which a child belonging to a weaker section or disadvantaged group faces while seeking admission to a school. The Act bans charging of capitation fee for admission as well as prohibits subjecting the child or parent or guardian to screening procedures for admission. The judgment notes that earlier cases which asserted the right to run educational institutions was institution-centric and in the context of higher education. The focus of the present law was child-centric and provides for elementary education free from the barriers of cost, parental obstruction and state inaction. The Court observed that education is imparted at various levels from primary to professional, and governmental regulation of all levels cannot be identical. Factors like merit and excellence would be given different weightage in higher education. The Act deals with admission to Class I. Universal elementary education to strengthen the social fabric of democracy through the provision of equal opportunities for children of weaker sections and disadvantaged groups was held to be a qualitatively different category from admissions to higher and professional education.
The Court distinguished the earlier judgments stressing the role of merit in admissions to professional courses as having no application in the context of elementary education. It observed that it may not normally be possible to judge the merits of a child seeking admission in Class I. The Act’s prohibition of holding back and expulsion of a child makes clear the objective of elementary education. To ensure that teachers impart quality education in the school, the Act imposes a total prohibition on them giving private tuitions. The rules prescribe norms and standards for schools, lay down minimum qualifications for teachers and specify the pupil-teacher ratio to be maintained in schools. Article 21A left to the state the manner in which the obligation to provide free and compulsory education is to be provided. The state could do it through its own schools or through aided schools or through private schools. The judgment stressed that the right to establish an educational institution should not be confused with the right to ask for recognition or affiliation. The judgment declared that to put an obligation on un-aided non-minority schools to admit 25% children from lower socio-economic and disadvantaged groups is a reasonable restriction on the fundamental right to carry on any trade, business or occupation and is permissible under Article 19(6) of the Constitution.
Next, the Court examined the applicability of the Act with respect to minority institutions. It noted that the fundamental right of minorities to establish institutions of ‘their choice’ to conserve their language, script or culture under Article 30(1) of the Constitution was declared in absolute terms. The freedoms under Article 19(1) including the right to carry on any business, trade or occupation were subject to reasonable restrictions. The Court held that reservation of 25% in un-aided minority schools would result in changing the character of the schools and struck it down. The provision was held applicable to aided minority schools as under Article 29(2) a citizen cannot be denied admission on the ground of religion, race, caste or language in an educational institution receiving aid from the state.
The majority judgment held the Right of Children to Free and Compulsory Education Act, 2009 to be constitutionally valid and applicable to all government schools, all aided schools, specified schools like Kendriya Vidyalaya and unaided non-minority schools. The minority judgment did not make a distinction between minority and non-minority and declared the Act to be inapplicable to all un-aided schools.
There has been valid criticism that the law enacted does little to improve the pathetic quality of teaching in government schools. Despite the mushrooming of private schools, at present the vast majority -- about 67% of students -- attend government schools. To get recognition, private schools are required to fulfill norms and standards. However, government schools continue to have abysmal infrastructure and teacher-student ratio. Ironically, government school teachers are paid more than private school teachers while the quality of teaching is worse. There is no doubt that the situation with regard to government schools needs to be remedied. However, it is not an either/or situation. Improving the standards of government schools can go hand in hand with 25% reservation for weaker sections in Class I in private schools to move towards social inclusiveness. The influx of students from lower socio-economic classes in elite schools would doubtless throw up new concerns and problems. Feelings of inferiority in any child are hardly conducive to mental health. Private schools have a tremendous responsibility to take corrective measures as far as attitudes of teachers and staff towards the poor is concerned. A competent team of counselors to deal with possibly increased social tensions, aggression, gangs and bullying needs to be put in place in schools. Perhaps the law could have worked out ramifications of the Act in greater detail and provided for steps to be taken to better equip schools for the new social experiment towards equality.
(Rakesh Shukla is a Supreme Court advocate)
Infochange News & Features, April 2012