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Resource centre on India's rural distress
 
 

Right to Education: neither free nor compulsory-Alok Prasanna Kumar and Rukmini Das
-The Hindu
 

The Supreme Court's judgment upholding the validity of Article 21A and the Right to Education Act has gutted the operative provisions of the law

While free and compulsory education for all children below the age of 14 has been a constitutional imperative for the government for the last 64 years, it is a matter of fact (and shame) that successive governments have not achieved this yet. The most concerted effort to bring about a legal framework to ensure free and compulsory education for all was made with the introduction of Article 21A and passage of the RTE. This was, however, first weakened by the Supreme Court in Society for Unaided Private Schools of Rajasthan v Union of India (Rajasthan Schools) in 2012 and has now been severely destabilised through the erroneously reasoned judgment in Pramati Educational and Cultural Trust v Union of India (Pramati), delivered earlier this week. What is incredible about the Pramati judgment is that while the Court has upheld Article 21A as valid, it has simultaneously weakened it by making it subject to Article 30.

Removing from RTE

In Pramati, the Court has gone further than Rajasthan Schools and completely removed all minority schools, whether aided or unaided, from the purview of the RTE Act. While agreeing with the majority judgment in Rajasthan Schools on the applicability of the law to private institutions, the Court has, on a strained and entirely unreasonable reading of clause (1) of Article 30, placed all minority schools in a regulation-free zone. Article 30 (1) recognises the fundamental right of all minorities to establish and administer educational institutions of their choice. The implication of the judgment in Pramati is that minority schools will continue to be permitted to charge any amount of fees, prescribe any admission criteria, and discriminate against any class of citizens without being answerable in any court of law to the government or to aggrieved parents. This is because the provisions of the Act which provide for these restraints will have no applicability to minority schools.

Three problems are evident with the reasoning adopted in Pramati. First, it has placed Article 30 on a pedestal, possibly elevating it to a status above the fundamental freedoms, even Article 21. All fundamental rights are limited by reasonable restrictions imposed by law on certain bases, but Article 30 alone, on the Court's interpretation in Pramati, is above any restriction in any manner. The Court's reasoning in this case has little basis in the Constitution or even in the intent of the framers. Its idea of a minority institution seems to be that somehow the mandatory inclusion of even a few non-minority students would dilute the minority character of the institution.

Second, the Court bases its reasoning upon judgments in T.M.A. Pai v State of Karnataka (2002) and P.A. Inamdar v State of Maharashtra (2005) which were decided in the context of tertiary education and not primary education. The Constitution does not recognise a fundamental right to tertiary education, but primary education is a fundamental right. Moreover, the difference in legal obligations of the state with regard to the two levels of education is well recognised worldwide and also in international instruments that India is bound by.

Third, even assuming that the judgments in TMA Pai and Inamdar are applicable to schools imparting primary education, both judgments recognise that the rights of minorities under Article 30 are not unbridled. It was held, for instance, in TMA Pai that admitting a few members of a non-minority group into a minority institution does not take away the minority character of such an institution and that Articles 29 and 30 clearly contemplate such an inclusion. The Court's judgment in Pramati, by closing the door to non-minority students of economically weaker sections, actually goes contrary to the principles laid down in the earlier Bench decisions in TMA Pai and Inamdar, despite the Court extracting passages from these judgments in Pramati.

The Supreme Court has read these judgments to mean that regulating minority schools including admission of non-minority students (or even minority students) from economically weaker sections of society, regulation of fees and admission procedures would be unconstitutional. This is perplexing at best, and absurd at worst.

Bringing about equality

This critique of the judgment should not be read to be a disparagement of minority schools or institutions. Many of them have rendered yeoman service to the nation and continue to do so. The RTE was designed, among other things, to empower the underprivileged sections of society to benefit from the best of minority institutions. It was also supposed to educate and expose children of privileged sections to the reality of inequality in this country by making them share space daily with children from deprived sections of society. Whatever noble intentions the Constitution framers had in mind while inserting Article 30, surely they did not intend to defeat these purposes as well.

(Alok Prasanna Kumar is Senior Resident Fellow and Rukmini Das is Research Fellow at the New-Delhi based Vidhi Centre for Legal Policy.)