, by SYYED MANSOOR AGHA
Constitutional validity OK, but desirability still questionable
SYYED MANSOOR AGHA hails the Apr 12 judgement of the Supreme Court, which exempts madrasas from applicability of RTE.
The Supreme Court of India, in a landmark judgment on Apr 12, while upholding Constitutional validity of Right to Education Act 2009 (RTE), declared that the institutions that predominantly provide religious instructions like Madrasas, Vedic Pathshalas, etc. and do not provide formal secular education are exempted from the applicability of the Act. The judgment running over 200 pages was pronounced by a 3-judge Bench headed by Chief Justice of India, Justice H.D. Kapadia. Justice Kapadia, CJI, wrote main judgment with Justice Swatanter Kumar, while Justice Radhakrishnan wrote a separate judgment disagreeing on the point of applicability of the Act on unaided private schools and aided minority schools.
In 1997, by way of 83rd amendment in the Constitution of India, a new clause “21A - Right to Education” was added which reads as:
21A (1)- The State shall provide free and compulsory education to all citizens of the age of six to fourteen years.
Clause (2) The Right to Free and Compulsory Education referred to in clause (1) shall be enforced in such manner as the State may, by law, determine.
Clause (3) The State shall not make any law, for free and compulsory education under Clause (2), in relation to the educational institutions not maintained by the State or not receiving aid out of State funds.”
BOUND TO BOOMERANG
The RTE was enacted to enforce this fundamental right. It was rushed in a hasty manner and within two months of its introduction in Parliament, it was made a law after notification by President of India. By this law the government sought to offload its Constitutional obligation of providing education for the weaker sections by providing 25 per cent reservation for EWS (economically weaker sections) in every School and by opening the gates of every school to every child of neighbourhood without considering intellectual level or social background of the child.
This is bound to boomerang and cause trauma to the children who will come empty-pocket or on foot and see their classmates taking luxurious lunch and driving home in luxurious cars. The trauma will consequently create inferiority complex and problems to their families, too. A student with low IQ will also have to face to follow the subject and fall frustrated of education altogether. There are many other drawbacks which have been subject of discussions among the teaching fraternity and educationists.
The Apex Court examined limited aspect of legality of law and rightfully held its constitutionality, however the question of “desirability” of this piece of law, which in the opinion of many is questionable and bound to destroy the whole Primary Education system, remains open for discussion. Interestedly, the Apex Court, in the very beginning of judgment, has indicated this aspect by reproducing a quote in the opening paragraph:
To say that “a thing is constitutional is not to say that it is desirable” [see Dennis v. United States, (1950) 341 US 494].
While examining the validity of the law, the SC has pointed out that the principle is, “The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the Constitution by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited it is not for any Court to inquire further or to enlarge constructively those conditions and restrictions”.
The majority judgment, pronounced by H.D. Kapadia, CJI and Swatanter Kumar, J held that reservation for EWS will apply on all schools barring unaided minority schools while Radhakrishnan J, in his separate judgment argued that the government cannot offload its responsibility to pass on the burden of teaching EWS students on the schools that run without financial aid of the Government. This descending opinion left a window of hope and a review petition may be filed and matter may be referred to a bigger constitutional bench.
RELIEF TO RELIGIOUS SCHOOLS
However this judgment provides much-sought-after relief for religious institutions from the applicability of this law which makes secular education according to the curriculum prescribed by the State compulsory and also provide provision to punish the parents of absconding children from 6-14 years from Primary School.
Justice Radhakrishnan, in Section 137 of his judgment, writes:
Counsel appearing for some of the aided minority institutions raised a doubt as to whether the Act has got any impact on the Freedom of Religion and Conscience guaranteed under Article 25 insofar as it applies to institutions run by a religious denomination. It was clarified by the Union of India that the Act would apply to institutions run by religious denominations in case the institution predominantly offers primary education either exclusively or in addition to religious instruction. It was pointed out that where the institution predominantly provides religious instructions like Madrasas, Vedic Pathshalas etc. and do not provide formal secular education, they are exempted from the applicability of the Act.
The Act, therefore, does not interfere with the protection guaranteed under Articles 25 and 26 of the Constitution and the provisions in the Act in no way prevent the giving of religious education to students who wish to take religious education in addition to primary education. Article 25 makes it clear that the State reserves the right to regulate or restrict any economic, financial, political or other secular activities which are associated with religious practice and also states that the State can legislate for social welfare and reform, even though by doing so it would interfere with the religious practices. Madrasas and Vedic Pathshalas, as I have already indicated, predominantly provide religious instruction and do not provide formal secular education and, hence, they are exempted from the applicability of the Act. The Central Government has now issued Guidelines dated 23.11.2010 under Section 35(1) of the Act clarifying the above position. The operative part of the guidelines reads as under:
“3. Institutions, including Madrasas and Vedic Pathshalas, especially serving religious and linguistic minorities are protected under Articles 29 and 30 of the Constitution. The RTE Act does not come in the way of continuance of such institutions, or the rights of children in such institutions.” Madrasas, Vedic Pathshalas and similar institutions serving religious and linguistic minorities as such are, therefore, protected under Articles 29 and 30 of the Constitution from the rigour of the Act.”
Significantly, Justice Radhakrishnan’s conclusion that “madrasas, vedic pathshalas, etc, which predominantly provide religious instructions and do not provide secular education stand outside the purview of the Act” is not objected to in the majority verdict written by Chief Justice of India S H Kapadia. Therefore it will be considered the unanimous opinion of the SC.
We welcome this ruling. Since guidelines of the Central Government issued on 23.11.2010 under Section 35(1) of the Act has been endorsed by the Supreme Court, no ground remains of any apprehension that any future government may change them.
However, danger to recognised and Government aided minority schools that will fail to fulfil the criteria of exuberant infrastructure laid down in this Act, has raised fear manifold of taking over by the State. The Gujarat Government has taken lead in this direction by enacting its own “Rules for the implementation of the Right to Education Act (RTE) 2009” notified on Feb 18, 2012 through Extraordinary Gazette 54. It has introduced some of the most alarming ideas for recognition of existing private unaided schools and envisages takeover of the schools which fall short in infrastructure and are under threat of being de-recognised and subsequently closed.
The rules envisage, as reported by Ajay Shah, Firstpost, Apr 11, and qaumiawaz.info, “If a private school is unable to meet recognition norms, then the RTE Act de-recognises the school and forces it to close down. This sudden forced closure would create serious problems for the students and parents who would have to find a new school in the neighbourhood. The Gujarat Rules allow the state to take over the school, or transfer management to a third party, and create a genuine possibility for the school to continue and meet the norms. This, once again, shows the focus of the Gujarat Rules upon the interests of students and parents.”
Other states may also follow the Gujarat Government Guidelines and minorities may easily be deprived of management and control of their aided and recognised minority schools. Interestedly, after the Government takeover the conditions of infrastructure will not apply as the RTE has made this discriminatory provision for Private Schools only.