Tuesday, July 5, 2016

Harmonising RTE with minority schools

On June 10, the Kerala High Court, in a remarkable verdict, ruled that Section 16 of the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act), that mandates schools to not detain any child before s/he completes elementary education, is applicable to minority educational institutions as well ( Sobha George v. State of Kerala ). The Supreme Court had exempted minority schools from the purview of the RTE Act in Pramati Education and Cultural Trust v. Union of India (2014). The High Court located this obligation not in the Act but under Article 21 of the Indian Constitution, which guarantees right to life and liberty. It ruled that no-detention policy (NDP) is in the “best interest” of the child and could independently be considered a fundamental right. How does this judgment redraw the lines of engagement between minority rights and rights to education? While this judgment is indeed innovative, is it necessarily good?
RTE Act and minority rights
Article 21A recognises the right of all children aged between 6 and 14 to free and compulsory elementary education. The RTE Act operationalises this right by elucidating supporting rights, identifying the duty-bearers and establishing administrative structures to enforce these rights. The generic scope of right to education seems to conflict with the specific contexts of the rights of minorities to establish and administer educational institutions of their choice under Article 30. That right, however, is not absolute. Freedom to ‘administer’ a school cannot include ‘mal-administering’ it. Regulations for maintaining academic standards, ensuring proper infrastructure, health and sanitation, etc. could be imposed on minority schools as well. Further, a government-aided minority school cannot discriminate against students on grounds of religion, race, caste, language in the matters of their admission (Article 29(2)).
The Pramati judgment was erroneous on two counts. First, it failed to notice that besides the 25 per cent quota in Section 12(1)(c), the RTE Act also has provisions on infrastructural norms, pupil-teacher ratio, prohibition on screening tests and capitation fee and ban on corporal punishment. Far from annihilating the ‘minority character’, these provisions benefit both the students and community. Second, it did not consider the fact that the government-aided minority schools stand on a different footing from their unaided counterparts and are more amenable to regulations than the latter.
Earlier, the Karnataka High Court refused to apply NDP to minority schools as it rightly considered itself bound by Pramati judgment. Interestingly, the Kerala High Court, while it began with the same premise, ended up with the opposite result! The significance of the Sobha George verdict, therefore, lies not only in making certain provision of the RTE Act applicable to minority schools but the strategy employed for this. The courts reasons: “… RTE Act has no application in a minority school, whether aided or unaided. However, the Court has to examine whether Section 16 of RTE Act is a mere statutory right or can be treated as a fundamental right expressed in the form of statutory provision.”
A key takeaway from this judgment is the recognition that certain provisions of the RTE Act have a universal appeal, even if the Act lacks it. However, it is completely within judicial discretion to determine which provisions are these. Prior to Pramati , courts had consistently upheld those regulations that do not annihilate their ‘minority character’ of the school and would actually serve the interests of students and community. As the RTE Act and rules incorporated a substantial part of these regulations, the Pramati judgment practically forecloses this line of reasoning.
A question of a clear law
While the Sobha George judgment opens possibilities of applying different provisions of the RTE Act on minority schools through the Article 21 route, it simultaneously forces a rethink on the role of judicial precedents. In the contrasting judgments of two High Courts on the same issue while ostensibly paying allegiance to the same Supreme Court precedent, one could notice a snowballing effect. This makes the overall position of law unclear arising from an erroneous opinion by the highest court. Besides fairness, certainty and stability are essential values underpinning the rule of law. In Common Law, a lower or a latter court cannot displace the judgment given by a higher or a prior court merely because it has a different perspective. This is what makes that judgment ‘binding’. While a lower court may distinguish its case from the higher court on material facts, the latter judge could do that, or if there are compelling reasons, overrule the prior judgment of the same court. The question here is not only about NDP. A number of studies have documented the effects of detention on the psyche of young children. The issue is the obligation of the superior court in laying down a clear binding law for all subordinate courts. TheSobha George case may immediately benefit thousands of children in Kerala, yet conflicting judgments adversely affect realisation of rights of all children equally. A ‘constitutionally-permissible balance’ between right to education and minority rights requires an interpretation that makes them mutually reinforcing rather than irreconcilable. It is hoped that Supreme Court: (i) re-examines the positive (establishing and administering educational institutions for the welfare of minorities) and the negative (protection against imposition of majority language or culture) aspects of educational rights of minorities; and (ii) appreciates the special case for guaranteeing right to elementary education universally and equitably.
The problem with a judgment like Pramati is that for the issues it addresses, it either can overstay or is overruled.
Ajey Sangai is a Research Fellow with Vidhi Centre for Legal Policy, New Delhi.

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