Supreme Court’s final verdict on 12th April 2011 in WRIT PETITION (Civil) NO. 95 OF 2010 and other such 30 petitions, in almost two years with thirty day-long hearings, adjournments and arguments, has changed the way RTE Act came in to play, though with certain inbuilt deficiencies, as an universal enjoyment for each and every children from age group 6-14 of this country, especially with respect to certain categories of schools.
In literal sense, the RTE Act has tried to bring all primary schools within a single universal umbrella of registration, regulation and standards. It did try to provide opportunity for children of certain deprived section of society to get entry in to private schools both aided and un-aided. Initially, it didn’t make any distinction between any categories of schools viz. Madrasa, Vedic/Sanskrit, Minority and Non-Minority schools. Soon after the enactment, while the case was pending in the Supreme Court, Madrasas and Vedic/Sanskrit Schools providing primary education have been brought out completely by the Government. Despite this, the debate over exclusion of Minority schools was heated up both within the Court and outside the court, amongst the community leaders/representatives/Minority school lobbyists and the policy makers and Mr. Sibal once announced publically that the government will soon come up with its revised policy for exclusion of minority schools from the universal coverage of the law.
At the same time before the UP and other state elections, union government had announced the reservation/quota to Muslim/minority OBCs within the existing OBC quota almost in line with all the four south Indian states and west Bengal. Interesting, the Andhra reservation Case is still pending in the Supreme Court and for now Court has given an interim green signal to AP government to continue with its reservation scheme.
Many new doors of opportunities are being opened and/or intended to be opened for the Minority communities especially after the Sachar’s disclosures about the condition of Minorities especially Muslims in our country, earmarking beginning of a serious and sincere path way to development of this section of the country.
Classes without roof of Urdu Girls High School, Palamu (Daltenganj) Jharkhand. [TCN Photo]
Then comes this verdict of the Supreme Court, upholding the constitutionality of RTE Act in respect of all categories of school save un-aided minority primary schools, which includes institutions run without any government support by communities such as Muslim, Christian, Zoroastrian, Sikh, and Buddhist and in some states like Karnataka, the list include Jains also. Even the verdict included aided-minority primary schools. And therefore, the Judgment came as a surprise to me, particularly, its portions which gave an overarching and absolute immunity to non-aided minority schools. Precisely now the RTE Act will be applicable to all schools except non-aided minority primary schools. Very interesting, strange and far reaching verdict, both in terms of its content and impact, the order promoted status quo [Read no change] for existing as well as future un-aided minority primary schools and RTE for other primary schools.
I don’t know how to put this in perspective, but my concerns and questions around this verdict, surrounded by a series of doubts, in the changing context of Minority development in the country, is that whether this verdict has opened a new set of opportunities vis a vis minorities of country or not or it has done just the reverse?
The answer is mixed, in yes, no and/or both.
‘Yes’, or ‘may be yes’ for a section of schools administered and controlled by a certain section of Minority communities and even a ‘no’ to some extent that it closes the opportunity for such institutions to open up and interact with diversity, tolerance and co-existence, which is generally alleged against this section of schools by others, for me this verdict has reinforced this allegation. But definitely a ‘no’ for children from both the poor and marginalized section of society which are defined as socially and economically backward community under the Act and covered by the 25% free seats in standard one in private primary schools and even a bigger ‘NO’ for the children from the minority community studying in such un-aided minority schools.
This is only in respect of one part of the verdict, which for me is not the real cause of worry but the other part, (definitely not the better half) of the verdict, which talks about unconstitutionality of S. 18(3), which reads as "on contravention of the conditions of recognition, the prescribed authority shall, by an order in writing withdraw recognition". Even more frustrating as the court interpreted it as a “threat to withdraw recognition” and therefore, held it a direct and clear interference in the enjoyment of the rights under Article 30(1) and therefore it has scraped the entire law vis a vis this category of primary schools.
On earlier occasions, the Supreme Court of India has defined extent of regulation permissible under Article 30(1) of the Constitution and following observations made by the same court worth a mention.
Re Kerala Education Bill case (AIR 1958 SC 956)
“As a condition of granting aid or recognition to an institution coming under Article 30(1), the state may impose reasonable regulations for the purpose of ensuring sanitation, competence of teacher, maintenance of discipline etc.”
Frank Antony Association vs. Union of India (AIR 1987 SC 311) and GF College vs. Agra University (AIR 1975 SC 1821)
“There is no constitutional or other right for an institution to receive state recognition and the state may impose reasonable conditions for receiving its recognition e.g. Aa to the qualification or pay of teachers or qualification of governing bodies.”
Fr. Thomas Shingare vs. State of Maharashtra (AIR 2002 SC 463)
“State cannot impose any restriction on the right … so long as such institutions are unaided, except to the limited extent that regulation can be made for ensuring excellence in education”
Accordingly, imposition of condition on recognition was severally upheld as constitutional by the Apex Court. Worth underlining here that ‘condition to recognition’ as a regulation, if valid in the eyes of constitutional principles, then violation of such ‘conditions’ would logically end in ‘derecognition’ or withdrawal of recognition, therefore, construction of ‘withdrawal of recognition on account of failure to fulfill conditions for recognition’ as a ‘threat’ seems somewhat devoid of the logic in light of the earlier verdict of the Apex Court.
Further, It's interesting to see that the Judgment disqualifies RTE Act vis a vis non-aided minority schools on the apparent ground of "preservation of culture and script", so what about aided private minority schools, as if they have no right to preserve culture and script. Therefore, selective use of this justification only for non-aided minority schools falls short of real reasoning and logic, which is ironic.
One has to understand and analyze it in perspective that what was so compelling for the court to exempt this section of schools, though principles laid down by the Apex court on many occasion, very clearly validated the regulation on registration and maintenance of academic standards of private Minority educational institutions and which equally applicable to the union government while defending the law in the court, despite, clarifications on the part of Union HRD Ministry that 25% free seats for socially and economically backward section of nation in private schools is not reservation rather a mechanism to curb social exclusion. How it can be termed as ‘reservation’ then, when it is just a free ship coupled with a right to continue and complete primary schooling only at the level of standard 1st and not for all other classes up to standard 8th.
Therefore, firstly terming it 'reservation' by the Court made it more complex because by doing this the upper cap of 50% reservation came as an obstacle for minority schools and amounted to giving away the minority children’s legitimate 50% share. For me the Court could have, only for the purpose of RTE Act, made exception to the existing 50% cap in Minority Primary Schools and would have allowed continuing / non-interference in the existing 50% and adding another 25% for the children of groups intended by the RTE Act and the remaining 25% for others.
Supreme Court’s verdict has a far reaching implication on children in un-aided minority primary schools and such schools are concerned.
Noteworthy in the present context, the Court itself ruled the logic that the RTE Act is “child centric and not an institution centric” law and relying on its logic it validated the law for all categories of schools except the school in question and further recorded that “by admitting a non-member into a minority institutions, it does not shed its character and cease to be a minority institution.”
But quite paradoxical, why the same ‘child centric’ logic has not been applied here and the Court took a departure from this ideological position of law to institution centric approach in relation to un-aided Minority primary school?
Let’s explore a little further, why this verdict has closed the doors of opportunities opened up by RTE Act for children studying in such schools. The direct implication would be on the standards vis a vis school infrastructure/building, academic standards, teacher-pupil ratio, teaching hours, teaching ethics etc. as prescribed in Sections 19 and 25 read along with schedules of the Act as the main guiding principles, thereby the un-aided minority schools are not required to upgrade its school to the common minimum standards, and inturn amount to depriving children studying there, who would be mainly Minorities, from such benefits. Also, the right to universal and compulsory education for this section of children will be no more justiciable at par other children studying in other schools, further ‘quality education’ will no more a guarantee for such children and would also result in to an unaccountable scenario for such schools, beyond the reach of law and regulations.
Keeping the ‘minority child centric’ focus in mind, now onwards, a children studying in un-aided minority primary schools will not be at par children studying in other schools, they will not have access to a school with minimum infrastructure such as all weather building, accessible and barrier free school and class rooms, class rooms for each class, not so over-crowded class rooms, safe and adequate drinking water facilities, separate toilets for boys and girls, play ground, library; a child friendly and caring environment; a school free from corporal punishment and abusive environment, adequate number of qualified teachers, minimum teaching hours, holistic curriculum, modern and scientific evaluation system and so on so forth.
To conclude was that the intent of the petitioners, when they challenged the RTE Act on ground of violative of Article 30(1)?
Very strange state of affairs! Unfair?
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