Lesson in justice

The Supreme Court's verdict will help demolish the subtle policy of segregation engrafted into India's education system.

I HAVE grown to see that the judicial process in its highest reaches is not discovery but creation. The recent Supreme Court judgment on the educational rights of children compels one to agree with these words of the great jurist Benjamin N. Cardozo.

The Bench consisted of three judges; two of them wrote separate judgments. One of the judgments, authored by Chief Justice S.H. Kapadia, upholding the Right to Education Act, 2009, to a great extent became the majority view as the third judge, Justice Swatanter Kumar, decided to go along with that view. Justice K.S. Radhakrishnan's judgment declared the major part of the Act unconstitutional.

The opinion he expressed frowned upon the attempt of the legislature to usher in an era of inclusive primary education of quality. Had this got majority support, the only way left for the people of India would have been to turn to the advice of the Buddha.

A learned man once said to the Buddha: The things you teach, sir, are not to be found in the holy scriptures.

Then put them in the scriptures, said the Buddha.

After an embarrassed pause, the man said, May I be so bold as to suggest, sir, that some of the things you teach actually contradict the holy scriptures?

Then amend the scriptures, said the Buddha.

This is what happened to the social justice aspect in the field of education. Our secular scripture, the Constitution of India, had to be amended. The first of the amendments incorporated Clause 4 in Article 15 to remove the obstacle of a Supreme Court judgment striking down communal reservation in admission to educational institutions.

In the T.M.A. Pai case in 2005, an 11-judge Bench, after conceding great autonomy to private unaided professional colleges, opined that representation for weaker sections could be made even in unaided private colleges. Clarifying the same, a five-judge Constitution Bench in the Islamic Academy case stated categorically that reservation could be provided to backward sections of society.

However, in the Inamdar case, a seven-judge Bench consisting of judges who were not part of either the T.M.A. Pai Bench or the Islamic Academy Bench concluded that any kind of reservation for backward classes was impermissible in unaided professional colleges even though it conceded an NRI (non-resident Indian) quota on higher fees to the said colleges. Hence, the Constitution was amended to provide for reservation for backward classes and the Scheduled Castes and the Scheduled Tribes even in unaided institutions by adding Clause (5) to Article 15. The consequent law providing for reservation in unaided professional colleges was upheld by a Constitution Bench in the Ashok Kumar Thakur case.

Despite the said constitutional amendment putting social justice back into the heart of unaided private education, the logic of the minority view in the current judgment found the 25 per cent quota at the primary level for weaker sections and disadvantaged groups anathema and declared it impermissible in the case of unaided schools. How easy it is for some to forget the core of Indian culture, which always considered educational activity a charity and a mission. In the Indian context, imparting education is considered the greatest gift vidyadanam mahadanam.

The verdict reiterated the principle that the activity of imparting education should remain charitable even by unaided institutions. It also held that unaided schools should share the obligation to provide free and compulsory education to children under Article 21A of the Constitution, thus supplementing the primary obligation of the state.

Though the majority view saved the day, it appears to have fallen into two fallacies one of over-exclusion and the other of over-inclusion.

Over-exclusion

After laying down that 25 per cent quota be provided to weaker sections and disadvantaged groups as a permissible regulation in view of the supplementary obligation on unaided institutions flowing from the right to education and stating that such a provision was a permissible condition while granting recognition to institutions, the blanket exclusion of minority unaided schools from the Act can be regarded as an over-exclusion.

Even if minority unaided schools were excluded from quota provision, the other provisions of the Act, relating to standards, quality, curricula and infrastructure, could be made applicable to them. Moreover, the 25 per cent intake could be interpreted in tune with the freedom of choice of minorities. Properly construed, the Act does not mandate that the 25 per cent quota should be taken from non-minority students. If linguistic and religious minority educational institutions are directed to give representation to children belonging to the weaker sections in their own communities, it will enhance their rights and not violate them.

Minority rights are group rights and they dwell in the community, including children of weaker sections and disadvantaged groups in the community. The managements of these institutions exercise this right derivatively and on behalf of the community. Thus, such reservation for weaker sections of their own community would have been cutting horizontally across their vertical preference for the minority's own children. They would have been required to prefer children of weaker sections from among non-minorities only to the percentage of their total intake of non-minority children.

Such preference could be upheld without infringing on their freedom of administration as a regulation in the national interest or as a permissible condition for recognition or in compliance with the supplementary obligation flowing from Article 21 and 21A towards the community's own children. These minority schools could educate the weaker and disadvantaged children of their own community on the expense of the government, utilising the provision for reimbursement.

Over-inclusion

The fallacy of over-inclusion flows from the fact that once the judgment takes a view that the whole Act is not applicable to unaided minority institutions, it being violative of their right to administer under Article 30 of the Constitution, there was no rhyme or reason to make the said Act applicable to aided minority institutions. The classification of minority educational institutions into aided and unaided under Article 30 in making the whole Act applicable or inapplicable runs counter to the settled law laid down in the T.M.A. Pai case and the Inamdar case.

It has been reiterated that the only regulation that can be imposed on an aided institution in addition to the ones permissible on unaided ones are those meant to ensure proper spending and accounting of the aid given. There cannot be any limit or restriction on the freedom of administration. Even the mandate of non-discrimination under Article 29(2) has been held not to affect the freedom of administration except to the extent of admitting non-minority students after exhausting substantially the admission for minority students. This balancing of Articles 30 and 29(2) cannot be construed in a manner that a restriction on administration permissible in an unaided minority school is made in an aided minority school.

A vacuum

The majority judgment has also created a vacuum as far as minority unaided schools are concerned by completely excluding them from the operation of the Act. The applicability of the right to education of children belonging to the linguistic and religious minorities and the interplay between Article 21A and Article 30 remains to be addressed by the legislature. It is true that the 2009 Act has not addressed the issue of minority educational institutions and admissions to these and how these institutions are to be regulated in the matter of fulfilling their supplementary obligation flowing from Articles 21 and 21A.

The Constitution contemplates a separate law to regulate such obligations of minority educational institutions. Even in the case of compulsory acquisition of land, the Constitution has contemplated a separate law for acquiring land belonging to minority institutions. This is evident from the provisions of Clause (1A) of Article 30, which provides for a special law and special procedure to acquire land belonging to minority educational institutions.

The legislature ought to have followed this constitutional scheme and made a separate law and procedure in the matter of regulating the supplementary obligation of unaided minority institutions in fulfilling the mandate of Article 21A.

The lack of clarity contained in the law has made the judgment also to exclude boarders in boarding schools from the Act. The neighbourhood school concept was not specifically defined and was left vague.

This made the Supreme Court treat the neighbourhood as a geographical neighbourhood instead of a flexible and liberal concept denoting the catchment area principle depending on the nature and category of the school and the nature and background of the children for whom it was meant, such as Central schools, Sarvodaya schools, and schools for the physically challenged. Thus there would not have been any difficulty in providing for this 25 per cent even in boarding schools and residential schools if the concept of neighbourhood had been understood as catchment area.

Overall, let us hope that this verdict is a harbinger of the change in the subtle policy of segregation engrafted into our education system. A change that would no longer mean:

Education for us, literacy forthem;Convent schools for us, under thetree one teacher schools for them;English medium for us, vernacularfor them;Trained teachers for our children,para teachers for theirs;Unaided institutions for ours,government ones for theirs.

M.P. Raju is a lawyer and the author of Education: A Mission in Jeopardy. He has represented the Bachpan Bachao Andolan in the Supreme Court with regard to the rights of children.