CONSTITUTIONAL LAW

ARTICLE 21-A : RIGHT TO EDUCATION

SUBMITTED TO : MS. NANDITA BATRA

SUBMITTED BY : SHELLY ARORA

SECTION D

213/13

B.COM. LL.B (HONS)

YEAR - 2015

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Acknowledgement

I am using this opportunity to express my gratitude to everyone who supported me throughout the course of this CONSTITUTIONAL LAW project. I am thankful for the aspiring guidance, invaluably constructive criticism and friend advice during the project work. I am sincerely grateful to them for sharing their truthful and illuminating views on a number of issues related to the project. I will strive to use gained skills and knowledge in the best possible way, and I will continue to work on their improvement.

I express my warm thanks to my subject teacher Ms. NANDITA for giving me opportunity to work on this topic and without her support and guidance ,I would have not completed this project.

Furthermore I would also like to acknowledge with much appreciation the crucial role of the Library staff of the department, who gave the permission to use all required equipment, books and necessary material required to complete the task, and thanks to all the people who provided me with the facilities being required and conductive conditions for my Constitutional law project. . I choose this moment to acknowledge their contribution gratefully.

A special thanks goes to my class mate, who help me to assemble the parts and gave suggestion about the task .

I also acknowledge with a deep sense of reverence, my gratitude towards my parents and members of my family, who has always a supported me morally as well as economically.

Any omission in this brief acknowledgement does not mean lack of gratitude.

Thanking you

Shelly Arora

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SR.NO. CONTENTS PAGE NO.TEACHERREMARKS

INDEX

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RIGHT TO EDUCATION

Article 21A provides : “ 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.”

Article 21A added by the constitution (86th amendment) Act,2002 makes education from 6 to 14 years old, a fundamental right, within the meaning of Part III of the Constitution.

This article may be read with new substituted Article 45 and new clause (k) inserted in Article 51 A by the constitution (86th amendment) Act,2002.

While the substituted Article 45 obligates the state “ to Endeavour to provide childhood care and education for all children until they complete the age of six years”, Clause (k) inserted in Article 51 A imposes a fundamental duty on parent/guardian “ to provide opportunities for education to his child or, as the case may be, ward, between the age of six and fourteen years”.

With reference to Article 51A(k) which explained the emphasis would be “ to encourage and prompt” parents to bring children to schools, rather than to punish the economically weak parents. It was explained that the Government would Endeavour to target children of economically weak parents guardians through Sarva Shiksha Abhiyan and a series of measures and facilities.

The right to education – recognized as a implicit fundamental right in Mohini Jain1 and Unni Krishnan2

CASE :

Emphasize on the right to education in Brown v. Board of Education3

Today education is the most important function of the State and local Governments.. it is required in the performance of our most basic responsibility, even services in the armed forces. It is very foundation of good citizenship. Today, it is principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.

1 Mohini Jain v. State of Karnataka, AIR 1992 SC 1858 [Hereinafter Mohini Jain]2 Unni Krishnan J.P. v. State of Andhra Pradesh, AIR 1993 SC 2178 [Hereinafter Unni Krishnan]3 347 US 483 (1954), quoted in Election Commission of India v. St. Mary’s School, AIR 2008 SC 655.

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To bring the Constitution (86th Constitution Amendment) Act,2002 into force, the Right of Children to Free and Compulsory Education Act, 2009 has been enacted to translate the constitutional intent into action. The Act, 2009 provides for children’s right to free and compulsory admission, attendance and completion of elementary education. Section 3(1) of the Act, 2009 provided with free education in the nearest school till that child completes his/her elementary education.

Though the Act, 2009 is a central legislation, its effective implementation lies in the hands of the State Government of India announced that 25% seats in private schools for children from poor families be reserved as also prohibited donation or capitation fee.

The Act 2009 lays down that the curriculum should provide for learning through activities, exploration and discovery. It requires that the teaching- learning process must become stress free and the curriculum reform be initiated to make the learning system child friendly. Besides the Act, 2009 contains provisions prohibiting corporal punishment, detention and expulsion.

As regards the responsibility, the Act, 2009 mandated that the education Department of the Central and State Governments would provide schools, infrastructure, trained teachers, curriculum and teaching - learning material as also mid-day meal facilities.

CASE 1 :

SHIKSHAN PRASARAK MANDAL, PUNE v. STATE of MAHARASHTRA4

Stating that imparting education was a constitutional obligation of the state and a fundamental right of the students under Article 21-A, a full bench of Bombay High Court in Shikshan Prasarak Mandal , Pune v. State of Maharashtra, ruled that the performance of the constitutional and fundamental duty by the State would have to be placed at a much higher pedestal than the policy of the State which had statutory backing.

CASE 2 :

ZEESHAN V. DISTRICT EDUCATION OFFICER,KANNUR5 The term “child” for the purpose of Article 21-A is held to be a child who is citizen of Indian. Te Kerala High Court in this case upheld the denial of admission to Standard V in a school of a child who was a citizen of Pakistan under Section 22(ii) of the Kerala Education Act, 1959.

4 AIR 2010 Bom. 39.5 AIR 2008 Ker. 226.

Right of Children to Free and Compulsory Education Act, 2009

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CASE 3:

Associated Management of (Government Recognized Unaided English Medium) Primary & Secondary Schools in Karnataka v. State of Karnataka.6

In Associated Management of (Government Recognized Unaided English Medium) Primary & Secondary Schools in Karnataka v. State of Karnataka, a full bench of Karnataka High Court held by the virtue of Article 21-A, the medium of instructions was to be entirely the choice of the parents and the student and that no one could claim to know better than the parents about the child, to decide as to what the child required in the sphere of education to shape its career and destiny.

Thus Article 21-A is read with Article 19(1)(a), all children shall have the freedom to have primary education in a language of their choice.

CASE 4:

T.M.A. Pai v State of Karnataka (2002)7 and P.A. Inamdar v State of Maharashtra (2005)8

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 recognize 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 recognized 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 recognize 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.

6 AIR 2008 (NOC) 2790 (Kar.).7 AIR (2002) 8 SCC 4818 AIR (2005) 6 SCC 537

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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.

CASE 5 :

Action Committee Unaided Recognized Private schools v. Hon'ble Lt. Governor & Ors W.P. (C) 177/2014 & The Forum of Minority Schools v. Lt. Governor of Delhi & Anr W.P. (C) 208/2014 9

Parental choice wins

In ‘Forum for promotion of quality education for all v Lt. Gov. Of Delhi and Ors.’ Writ Petition no. 202 of 2014 (with WP 177/2014) decided on 28.11.2014, the learned Single Judge of the High Court of Delhi set aside the impugned office orders being violative of the fundamental right of the school management to maximum autonomy in day-to-day administration including the right to admit students as well as the fundamental right of children through their parents to choose a school. By the said office orders, the Lieutenant Governor had directed that 75% nursery seats, i.e. after excluding 25% seats reserved for EWSD sections shall be admitted on the following basis:

70 marks for neighborhood 20 marks for siblings 5 marks for parent/alumni And 5 marks for interstate transfers

ISSUE

Whether private unaided schools have the autonomy to admit students and the children through their parents have a right to choose a school in which they wish to study or whether the executive by way of an office order can impose a formula on the basis of which nursery

admissions have to be carried out by such schools.

CONTENTIONS

9 AIR 2014 Delhi HC

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The counsel for ‘Forum for promotion of quality education for all’ contended that freedom of schools/ tutor and child/ parent to choose one another constitutes autonomy of the school under Article 19(1)(g) and which needs to be preserved and protected under Article 21 of the constitution as well as Article 19(1)(a) and 19(1)(g).

The impugned office orders are against public interest and contrary to principles of autonomy as enunciated in TMA Pai Foundation and Others v. State Of Karnataka and Others (2002) 8 SCC 481, as well as the Directive Principles Enshrined in Article 38 to 41, 45 and 46 and Fundamental Duties in Article 51A(9)(e), (j), (k) of the Constitution. He contended that the direct and inevitable result of the impugned neighborhood rule was that now only the rich in the affluent localities would have exclusive access to good schools situated in the localities, whereas poor people staying in distant areas of Delhi stood excluded from the same. He also contended that the impugned office orders are also contrary to provisions of the Delhi School Education Act of 173 Delhi School Regulation Rules 1973 as well as RTE Act 2009. The impugned office orders over and above 25% reservation stipulated in RTE Act 2009 also provided for 5% staff quota and 5% girls quota as an additional/extra reservation contrary to Section 12 and 13 of RTE Act 2009.

Senior Counsel appearing for Action Committee Unaided Recognized Private Schools mainly contended that the impugned office orders are not only in violation of Rule 145 but also without jurisdiction as Section 3(1) and 16 of the DSE Act 1973 read with Rule 43 of the DSE Rules 1973 did not empower the administrator to overwrite Rule 145 which conferred power to regulate admissions upon the head of the recognized unaided school. Petitioners also stated that the neighborhood concept had been considered and rejected by the Expert Ganguly Committee. Neither any pleading were filed nor any arguments were advanced by the Social Jurist, though it had been impeded as a respondent on the first date of the hearing itself.

DECISION

The decision was based on three main arguments:

(i) the admission guidelines violate autonomy of private educational institutions;(ii) office order is not a law under Article 19(6); (iii) neighborhood criteria is contrary to parental choice.

The Court held :

Private unaided school managements have a fundamental Right under Article 19 (1)(g) to establish, run and administer their schools, including the right to admit students. Autonomy has also been recognized and conferred upon schools by Section 16(3) of the DSE Act 1973 and Rule 145 of DSE Rules 1973 which empowers the head of every unaided school to regulate admissions in the school or any class

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thereof. Right to establish an educational institution can be regulated, but such regulatory measure must in general be to ensure the maintenance of proper academic standards, atmosphere, infrastructure and prevention of maladministration by those in charge of the management. Right to impose conditions while granting recognition/affiliation cannot be used to destroy institutional autonomy. TMA Pai Foundation judgment is applicable to nursery admissions in private unaided non-minority schools. Article 21(a) and Article 15(5) of the constitution have no application to the present case.

Restriction under Article 19(6) can only be by way of a law and not by way of an office order without any authority of law.

There was no material to show that private unaided schools were indulging in any malpractice or misusing their right to admit students in pursuance to 2007 Notification.

Except proviso to Section 12(1)(c), none of the other provisions of RTE Act 2009 apply to the nursery admission. Impugned office orders are contrary to guidelines issued by central government under section 35(1) of the RTE Act 2009.

Section 3 of the DSE Act 1973 and Rule 43 of DSE Rules 1973 cannot be used to contradict or overrule a specific provision. Further Rule 15 of DSE Rules, 1973 cannot be interpreted to mean that the school has to be confined to the locality where it is situated.

The point system introduced by the impugned office orders is neither procedurally proper not rational. No empirical study or mapping exercise was carried out with regard to availability of good quality schools in the neighborhood of each colony. Even in the United States of America, the concept of neighborhood school or distance does not apply to private unaided school. It applies only to public schools.

Children through their parents have a fundamental right to choose school in which they wish to study under Article 19(1)a of the Constitution. Parental School Choice in its broadest sense means giving parents the ability to send their children to the school of their choice. The school of choice often emphasize a particular subject or have a special philosophy of education. Also if parents are given freedom to choose the school that they prefer, good schools will attract more students and will expand whereas the not so good schools will lose the students and eventually close thereby schools will maintain their standards and will endeavor to raise their educational attainments in order to attract more students. Primary cause of nursery admission chaos is lack of adequate number good quality public schools. School choice gives families freedom to choose any school that meets their needs regardless of their location. This court is of the opinion that by increasing parental choice and by

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granting schools the autonomy to schools to admit students the autonomy of private schools could be ensured.

Till the quality of all public schools is improved, the disparity between demand and supply will remain. This court was of the view that no office order or policy or notification or f formula can resolve this disparity. Social Jurist has filed an appeal before the Division Bench in the High Court of Delhi but this judgment has not been stayed.

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i. The Beginnings of the Judicial Interpretation of Article 21A

Earlier any attempt to define the contours of Article 21A necessarily involves entering unchartered waters. In spite of the fact that Article 21A has only recently entered into force, there is already a limited amount of judicial dicta on its scope and meaning. The most prominent example is the opinion of Bhandari J. in Ashoka Kumar Thakur, arguably the most significant affirmative action case to be decided by the Indian Supreme Court in the last decade or more.

CASE I On its face, Ashoka Kumar Thakur10 would appear to have little to do with primary school education. The constitutional question centered on whether the reservation of places in educational institutions for members of the Other Backward Classes (i.e. socially and educationally backward classes of citizens of India) was violative of the constitutional guarantee of equality. In his separate opinion in Ashoka Kumar Thakur, Bhandari J. was sharply critical of the Government for prioritizing higher education (and, more particularly, affirmative action in higher education) over primary education, in what he considered to constitute an inversion of constitutional priorities. It is in this context that his opinion contains dicta on Article 21A. He envisaged a two-fold content for Article 21A; first, that all children in the requisite age group must compulsorily attend school, and second, that the education provided to them must constitute “quality” education.

This is a preliminary indicator that, when the question eventually arises in the context of concrete claims under Article 21A, the Supreme Court might be inclined to hold that a minimum core guarantee of quality is essential for satisfaction of the constitutional mandate.

10 Ashoka Kumar Thakur v. Union of India & Others, (2008) 6 SCC 1

The Proposed Approach to Article 21A

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CASE II

In Avinash Mehrotra v. Union of India and Others 11

Bhandari J. observed that the broad and generous interpretation afforded to other fundamental rights by the Indian Supreme Court offered significant guidance to how Article 21A ought to be understood. Educating a child required more than “a teacher and a blackboard, or a classroom and a book”. While acknowledging that the case at hand did not require (or perhaps even permit) the Court to detail the full contours of Article 21A, he opined that it was at least warranted to conclude that where clearly unsafe structures were employed to house schools, this could not be construed as constituting compliance with the mandate of Article 21A. Another possible constitutional challenge in the context of Article 21A could be to laws or policies that actively impede the achievement of the constitutional goal of universal primary education.

CASE III

ELECTION COMMISION OF India V. ST. MARY’S SCHOOL12

An excellent example of the approach that might be adopted by the Supreme Court is provided by Election Commission of India v. St. Mary’s School . Here, the Supreme Court was considering the policy of requisitioning school teachers to conduct elections during normal school hours. The Court itself framed the issue in terms of how to resolve the conflict between two conflicting constitutional priorities. It recognized the paramount importance of free and fair elections in the Indian context, and the constitutional role of the Election Commission of India with respect thereto. Nevertheless, it held that the fundamental right to primary education could not be subordinated to this other constitutional priority. It took note of the “deplorable condition” of primary education in India. The operative portion of the Supreme Court’s judgment therefore provided that teaching staff should ordinarily be deployed for election duties only on holidays and non-teaching days.The Supreme Court’s analysis substantially focused on Article 21 of the Constitution which, at least textually, is framed as a negative procedural due process right protecting life and personal liberty. Evidently, the coming into force of Article 21A might only slant the constitutional balance further in favor of the outcome the Court reached in any case.

11 MANU/SC/0555/2009 [Hereinafter Avinash Mehrotra].12 AIR 2008 SC 655.

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ii. A critical analysis of the Strength of the Right It cannot escape notice that the right in Article 21A is not premised on the availability of resources, nor is it phrased in terms of a progressive obligation on the part of the State. The beneficiaries of the right are identified in clear-cut and precise terms, being children between the ages of six and fourteen years. The word “shall” presumptively connotes a mandatory obligation, and there is nothing in the backdrop of the framing of the right which would suggest otherwise. In fact, an alternative, non-mandatory interpretation of the word “shall” would be oxymoronic in the context of Part III of the Indian Constitution, although it is of course possible to conceive of other formulations of the right that might curtail its scope and reach even within the context of Part III.The latter portion of Article 21A – i.e. “in such manner as the State may, by law, determine” – strongly suggests that the means to be adopted to fulfill the mandate of the fundamental right are to be within the domain of the State

iii. Validity of Article 21A of the Constitution The substantial question of law which we are called upon to decide is whether by inserting Article 21A by the Constitution (Eighty-Sixth Amendment) Act, 2002, the Parliament has altered the basic structure or framework of the Constitution. Before we refer to the contentions of the learned counsel for the petitioners, we must reiterate some facts. Article 21A is titled ‘Right to Education’ and it provides that 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, the 2009 Act was enacted by Parliament to provide free and compulsory education to all children of the age of six to fourteen years. The validity of the 2009 Act was challenged and considered in Society for Unaided Private Schools of Rajasthan v. Union of India & Anr. (supra) by a three-Judge Bench of this Court.

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CASE ISociety for Unaided Private Schools of Rajasthan v. Union of India & Anr.13

Two learned Judges S.H. Kapadia C.J. and Swatanter Kumar J. held that the 2009 Act is constitutionally valid and shall apply to the following: 50(i) a school established, owned or controlled by the appropriate Government or

a local authority; (ii) an aided school including aided minority school(s) receiving aid or grants to

meet whole or part of its expenses from the appropriate Government or the local authority;

(iii) a school belonging to specified category; and (iv) an unaided non-minority school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority.

The two learned Judges, however, held that the 2009 Act, in particular Sections 12(1)(c) and Section 18(3), infringe the fundamental rights guaranteed to unaided minority schools under Article 30(1) of the Constitution and therefore the 2009 Act shall not apply to such unaided minority schools. Society for Unaided Private Schools of Rajasthan v Union of India (Rajasthan Schools) in 2012 and has now been severely destabilized through the erroneously reasoned judgment in

CASE II

Pramati Educational and Cultural Trust v Union of India (Pramati).14

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) recognizes 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

13 AIR (2012) 6 SCC 10214 AIR (2014) 8 SCC 1

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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. 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

iv. Remedies for the breach of Article 21A

Governmental inertia to be a prominent cause of the imperfect realization of the constitutional goal of free and compulsory education, it is clear that the question of remedies probably requires greater attention than the contours of the underlying right itself. I now turn to the types of remedies that the Supreme Court ought to consider, along with the potential benefits and pitfalls these might entail. In Ashoka Kumar Thakur, Bhandari J. observed that it was essential that the Government revise budget allocations for education, and set a realistic target for fully achieving the right enshrined in Article 21A. While acknowledging that this might require the judiciary to oversee government spending, he stressed that the power of the purse was entrusted to Parliament, and that spending was consequently one area where the judiciary must not overstep its constitutional mandate.Nonetheless, these strongly worded observations in the opinion of Bhandari J. do represent an important starting point for our evolving understanding of Article 21A. Perhaps the best elucidation of these observations is that the Judiciary will not dictate to the Government how much to spend or how to spend it, but will nevertheless hold it accountable for providing primary education to all. This would be enforced with strong remedies (much as Tushnet describes), with periodic reporting requirements, the refusal to easily accept withdrawal from past commitments, judicial censure and of course the threat of contempt of court as a last resort. This obviously points back to Godavarman, and I these that case is indeed a fair model for the mode of enforcement that Article 21A demands.

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BibliographyBOOKS :

(A) Kumar Narender, “ Constitutional Law Of India”. Panjab University, Chandigarh : Jain Law Agency, (2002).

(B) Singh M.P. , “ The Constitution of India”. Delhi : Delhi Law House, (2009).

(C) Chowdhury Rishad, “The Road Less Travelled”: Article 21A and the Fundamental Right to Primary Education in India.