Liberty, Education and the State
By Sushant Chandra
Published on September 1, 2016
The desire to seek a quality education is central to most families. Indian households are no exception; particularly those marginalised by society. In that spirit, it is hoped that the recent public interest case Ajay Kumar Patel v. State of U.P 2016 will resonate as judicial recognition for both the legal and equitable rights of the child. The case upholds the ‘Fundamental Constitutional Right’ to free schooling; now entrenched by primary legislation by way of the Right of Children to Free and Compulsory Education Act 2009. Things are seldom clear-cut, however, and this article will show, despite constitutional amendments and primary legislation facilitating this now ‘Fundamental Right’, that the fight for education is far from over.
What is certain, nevertheless, is that Ajay Kumar Patel and its preceding cases are strongly indicative of the constitutional settlement within India and its application of the principle of Judicial Independence. Firstly, though, it is worth noting the historical road towards education for all of India’s children. This provides context to the disquiet emanating from the judiciary, seeking to nurture and safeguard the right. Education in India is sensitive, emotive and complex policy area. Yet, it is a right that must be defended. In light of the recent judgment in Ajay Kumar Patel, we must hope that the situation will continue to flourish. The rights of the child must be its guiding compass and the Constitution and the judiciary its bearings!
Historical and Constitutional context of the Right to Education in India
Despite numerous Parliamentary attempts throughout the history of the Constitution to enshrine the right to education as absolute, its negative status had prevailed. In Mohini Jain v. Union of India (AIR 1992 SC 1858), the Supreme Court for the first time created a positive obligation on the state to provide education as a tangible right. It ruled that:
“The State Government is under an obligation to make endeavors to provide educational facility at all levels to its citizens”.It should be noted that judgment in Mohini Jain was delivered in the same year that India ratified the United Nations Convention on Rights of the Child (UNCRC). Though the intent in Mohini Jain was salutary, as it endeavoured to make education at all levels a sole duty of the State, the ruling was possibly optimistic. Providing a state education to all proved to be not just economically unsound, but also virtually impossible.
Predictably, this obligation was diluted just one year later in the case of Unnikrishnan v. State of Andhra Pradesh (AIR 1993 SC 2178). In this judgment, the apex court departed from Mohini Jain and ruled that the obligation of the State to provide free education extended only to children under fourteen. Despite being unsatisfactory, it was almost understandable considering the lack of State resources. Still, the breach remained. Those under the said age and without the benefit of higher means were not catered for.
Twelve years later, however, and with the spotlight again firmly on education, The Constitution of India was amended by The Constitution (Eighty-Sixth Amendment) Act, 2002. This provided that the education of children would be a ‘Fundamental Right’. Art 21-A states:
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. Accordingly and seemingly in spirit of The Constitution, the Parliament of India legislated via an enabling provision to give effect to this new found ‘Fundamental Right’, albeit some seventeen years after the UNCRC ratification.
Article 21-A itself does not create an enforceable right per-se, and that is not the way the Constitution is intended to work; rather it places an obligation on the State to enact legislation to secure education for all. The right was finally brought home in 2009 when the Right of Children to Free and Compulsory Education Act was passed by Parliament. This entrenched the constitutional right to schooling in primary legislation
Section 3(1) of the Right of Children to Free and Compulsory Education Act 2009 makes clear that:
Every child of the age of six to fourteen years shall have a right to free and compulsory education in a neighbourhood school till completion of elementary education.
This was a momentous legislative action. It would surely do much for many families and children. The Act contains detailed provisions for the inclusion of disadvantaged children into the mainstream educational system. The wording of the statute refers to ‘economically weaker sections’ (EWS) and ‘disadvantaged categories’(DG), while putting the onus on institutions to enable access to schooling.
Free, compulsory education to the poorest children marginalised by society was now embodied by statute. One of the core provisions enshrined within the Act related to the mandatory inclusion of EWS and DG children in privately-run schools. These institutions receive no State subsidy and in the public sector there is a qualitative difference between the services provided by its private counterpart. With ever plummeting standards, the guardians of children had lost faith in the system. Those whose circumstances enabled them were understandably drawn towards private institutions.
The Right of Children to Free and Compulsory Education Act 2009
Under the Act, Government, local authorities and the private sector now have a positive duty embodied by s8 and s9 to facilitate access to education. They are to ensure that those “belonging to a disadvantaged group(s) are not discriminated against and prevented from pursuing and completing elementary education on any grounds” – [my emphasis]
By virtue of s12, both public and private institutions are legally bound by way of a “reservation clause” to allocate 25 percent of their admission capacity to those marginalised and living on the fringe of our society. This gives effect to Article 15(5) of the Constitution, stating:
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 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.
This was intended to ensure equal access to education and to level the playing field. The issue which has been subject to much judicial debate pertains to the exempted ‘minority educational institutions’ referred to in Article 15.
Anyone familiar with Indian demographics will know that catering for minorities is no small task, many of whom live in rural areas. Under the National Commission for Minorities Act 1992, Muslims, Sikhs, Christians, Buddhists, Zoroastrians, Parsis and Jains are all notified as minority groups; consequently the unaided minority educational establishments form a sizable proportion of quality institutions.
Regrettably, the mandatory inclusion of children in unaided private schools – even with the specified exemptions – was widely perceived to be an attack on institutional autonomy and a coercion by the State. It may be argued that this is possibly synonymous with other matters of governmental interference.
In 2013, 2015 and 2016, the Executive issued orders purporting to allow admissions for EWS and DG children in private unaided schools, only if the public schools rejected prospective admissions on the grounds of no vacancy. An intensive investigation of the primary legislation of 2009 reveals that no such provision is supplied. The right to choose between the public and private schools has been safeguarded under the Act. For all intent and purpose, the Executive orders of 2013, 2015 and 2016 sought to remove this choice from EWS and DG children and coerce them to op solely for public schools.
Insidiously, the 2015 order provided for identifying the wards in the urban areas and extending the benefit of reservation clause; yet without similar provision for the rural classes. This clearly ousted the rural areas from the benefit extended by the reservation clause and thus defeated the objective of the Act. A natural consequence is that this stands to further alienate the rural community from receiving the benefits of the 25 percent reservation clause.
A point of consideration is that the issue in its entirety has shone a light on Indian education. Its problems and thus the children’s, are compounded by the disparities between the calibre of education in public and private institutions. It is regrettable that it has taken Parliament roughly 60 years to realize its constrained ability in providing compulsory education to all; predominantly due to scarce resources. That said, the contents of the instrument are prima facie; a step in the right direction for social mobility, but they must be enforced with enthusiasm if the objective is to be met. The numbers below indicate just how much of an extraordinary task this is. Conversely, this can be no reason to legitimise departure from the commitment.
The District Information System Education (DISE, 2013-14) identifies around 56 million seats in class 1st across the state of Uttar Pradesh in India. This includes both public and private schools. Around 25 million seats are with the private schools. There are around 0.6 million seats with such private schools which do not receive any support or aid from the State and hence had no obligation – prior to enactment of The Right of Children to Free and Compulsory Education Act, 2009 – to admit children from marginalised sections of the society.
The Parliamentary intention behind s12 was undoubtedly laudable and the assimilation of these deserving children into mainstream society is vital to equality and progression. Unfortunately, what ensued subsequently , through policy and case law, simply did not marry with this newly found foresight. It evidenced a reluctant approach by both the government and the private educational institutions to implement their obligations. It is becoming apparent that it is the judiciary which is evidently more inclined towards the notion of free education; perhaps more so than those drafting the legislation. Much can be attributed to the application of the principle of judicial independence.
Judicial Independence and the right to Public Review
The Constitution of India confers the power of judicial review through Article 13. This power is enjoyed by the High Court in their supervisory jurisdiction as well as the Supreme Court. Both can question and strike down primary legislation and any other instrument which conflicts with this part of the Constitution.
This provision envisages that if any law is inconsistent with ‘Fundamental Rights’ (which are housed in Part III of the Constitution) then to the extent of their inconsistency, they shall be void and thus held as a nullity. The word ‘law’ here, has been given an elaborate meaning under Article 13 (3) to include ‘any ordinance, order, by law, rule, regulation, notification, custom or usages’. In the past, Parliament has attempted to oust the jurisdiction of the court – to review certain legislative instruments. This in turn led the Court to expound the theory of ‘basic structure’ in Kesavananda Bharati v. State of Kerala (AIR 1973 SC 1461). The theory holds that there are certain features of the Indian Constitution which cannot be amended by the Indian Parliament. The right to public review has been held to be one such feature, ergo it forms part of the basic and essential structure of the Constitution and is and cannot be subject to amendment or repeal.
It must be noted that after a mere perusal of s37 of the Right of Children to Free and Compulsory Education Act, it could be said to be inconsistent with the power of judicial review, purporting to immune ‘anything done in good faith, intended to be done pursuant to the Act or any rules or orders made thereunder’ from any legal proceeding or suit before any court in India. This is constitutionally unsound.
In view of the theory of ‘basic structure’, s37 would only exempt those actions, rules or orders which do not contravene with the ‘Fundamental Rights’ of the Constitution. If this provision was intended to oust the jurisdiction of the courts from exercising their right to judicial review, then s37 ought to have specified, in unambiguous language, the exclusion of the Supreme Court and High Court’s power to review public Acts and decisions. Accordingly, s37 is amenable and could have been challenged on the ground of violating ‘basic structure’; therefore it is liable to be struck down. However, the jurisprudence of the Supreme Court is still conclusively unsettled on the point – i.e. can an ordinary piece of legislation be struck down on the ground of basic structure violation. The situation invokes a number of conflicts regarding judicial independence and the separation of powers. The matter remains as the often dismissed or unspoken question mark. As a matter of fact, the Supreme Court employs basic structure to strike down amendments to the Constitution, but there have been instances where provisions from ordinary legislations have also been struck down on the ground of basic structure violation. As can be seen from the following case law, this can operate as both a benefit and a detriment to a great number of conflicting interests; respective parties often seeking their version of rights to be upheld.
Society for Unaided Private Schools of Rajasthan v Union of India & Another (2012) 6 SCC; Writ Petition (C) No. 95 of 2010
In 2012 the constitutional legitimacy of the Act was questioned before the Supreme Court. An association of private schools challenged the 25% reservation clause within s.12 (1) (c) RTE on two substantive grounds. Firstly, that it violated their freedom of occupation under Article.19 of the Constitution and secondly that it infringed on the constitutional right under Article 30(1) for minority groups to institute and superintend educational institutions with autonomy.
The first argument was dismissed by the court. It held that the freedom of occupation is not an absolute right and is subject to the reasonable restrictions in the name of public interest as provided by Article 19(6) of the Constitution. Consequently private institutions fell within the ambit of the reservation clause. The court did however, differentiate between private schools and private minority schools. The latter was held to be exempt from complying with s.12 (1) (c) as it offended minority rights pursuant to The Constitution, per Justice S H Kapadia CJI:
Thus, the 2009 Act including Section 12(1) (c) violates the right conferred on such unaided minority schools under Article 30(1).
The ratio of the Indian Supreme Court in Unaided Private Schools case is perhaps slightly skewed and hence could be traced to multiple reasons. It could be located in the overlapping territories of social, economic, political and moral spaces. The court’s reasoning as far as the exempting the private minority schools placed great emphasis not just Article 30 but also on Article 29(1) which provides as a ‘Fundamental Right’ that minorities are understandably entitled to protect ‘their language, script or culture’. Conversely, s.12(1)(c) notwithstanding its non-applicability to unaided minority schools was held to be obligatory on public minority schools. The court emphasised that the Act is “child centric and not institution centric”, thus the equality of education to all children is the overriding objective and the 25% quota remained.
Pramati Educational Cultural Trust and Society v. Union of India (2014) 8 SCC 1
After the somewhat stern defeat of the litigants in Unaided Private Schools of Rajasthan another petition was proffered before the Supreme Court. This time the constitutional validity of Article 15 (5), Article 21-A and the RTE was the point of contention.
The court decreed:
the 2009 Act insofar it is made applicable to minority schools referred in clause (1) of Article 30 of the Constitution is ultra vires the Constitution. We are thus of the view that the majority judgment of this Court in Society for Unaided Private Schools of Rajasthan v. Union of India & Anr. (supra) insofar as it holds that the 2009 Act is applicable to aided minority schools is not correct.
Although The Supreme Court upheld the constitutional validity of the Act, it decided that both public and private minority schools were exempt from enforcing the reservation clause in view of their fundamental right under Article 30 of the Constitution:
All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
To this extent, judgment in Unaided Private Schools of Rajasthan stood overruled.
Ajay Kumar Patel v. State of Uttar Pradesh
The Allahabad High Court delivered a momentous judgment on the 25 percent reservation clause for EWS and DG category students this March. A division bench of the Allahabad High Court in Ajay Kumar Patel v. State of U.P. has given relief to 0.63 million EWS and DG children in the State. This judgment stands out due to its marvellous ability to: reflect the executive’s regressive attitude; be opaque in admissions; and in inspiring hapless families to claim a dignified life in the present society.
The court held that government could not derogate from its constitutional and legislative commitments towards the right to education by disadvantaged children. Unfortunately however, in the application of its enforcement of s12, the Government attempted to draw a distinction between children residing in urban and rural areas. The result of which is that the latter was detrimentally affected. They were essentially being denied the education that they rightly deserved on the grounds of poverty, ethnicity and geographical location. A natural consequence of this is not just inequality between educational institutions, and their students; it also endorses a notion of State-approved segregation.
The High Court ruled that it was impermissible for them to do so, holding that the right to education “must be enforced by the State without distinction between urban and rural areas. The first argument conveys a situation demonstrating hierarchy in obligations. Obligations imposed upon private schools and public schools in providing primary education to EWS and DG children. This would mean that the obligation on private unaided schools is secondary to State schools. The court dislodged this argument on the ground that no such qualification could be found either in the parent enactment or in the Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011. This is the correct approach.
There is no room for any ambiguity in socio-economic legislation. It must always be resolved in favour of the beneficiary. The obligations are independent and must operate separately. This restored the choice with EWS and DG children to seek admission in the school of one’s preference.
The second argument alluded to perverse discrimination between urban and rural wards without any cogent reason. This was also conceived as transgressing the equitable principles. The recently drafted National Policy on Education (2016), released under the auspices of Ministry of Human Resource and Development, alludes to national and international acceptance of the provisions. We hope that this will be followed through beyond its apparent lip service.
The inequitable elementary education system naturally propels one to seek admission in private schools due to their robust infrastructure and brilliant facilities. It is a human nature to want better things in life. This interest frequently remains unfulfilled due to economic inability of the State in recognising it as a right. The Right of Children to Free and Compulsory Education Act, 2009 bridges the gap between an interest and a right. The recently released National Policy on Education, 2016 under the chairmanship of T.S.R Subramanian noted that the reservation clause has been received with ‘approval and social acclaim internationally and nationally’. The Policy also made no recommendations to change the reservation clause under the 2009 Act. It noted that ‘this provision, implemented so far in 50,000 schools has helped more than 20 lakh students cross the socio-economic school barrier that segregates and ghettoizes them.’ There is no qualm about the potential benefit of this provision for children belonging to marginalised section. The commendable spirit of the provision must be directed in attaining the well-being of marginalised children and to secure a dignified life for them.
Education in India is not a forlorn hope. It could, indeed, be argued that the recent constitutional history evinces a wider legitimate interest in its obvious benefits; an interest for which that people are willing to argue.
Sushant Chandra is a lawyer and teaches at Jindal Global Law School, Sonipat. The author wrote the Public Interest Litigation petition in Ajay Kumar Patel v. State of U.P.
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