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Hollowing Out the Right to Education

Alok Prasanna Kumar (alok.prasanna@vidhilegalpolicy.in) is a senior resident fellow at Vidhi Centre for Legal Policy, and is based in Bengaluru.

 

The Right of Children to Free and Compulsory Education Act, 2009 aims to ensure inclusive education by requiring private educational institutions to admit students of economically weaker sections as part of the fundamental right to education. However, the existence of the act has never been free of state government and judicial attempts to dilute its beneficial provisions. The latest attempt by the Karnataka state government, upheld by the state high court, threatens to nullify the provision completely.

A recent division bench judgment of the Karnataka High Court, Education Rights Trust v Government of Karnataka (2019), has effectively put an end to the hopes of lakhs of children belonging to economically weaker sections (EWS) from gaining admission to unaided private schools. The high court dismissed a public interest litigation (PIL) challenging the constitutional and legal validity of Rule 4 of the Karnataka Right of Children to Free and Compulsory Education Rules, 2012 which imposed certain preconditions for children from the EWS category to avail admissions to private schools. Rule 4, as amended in January 2019, requires that any child seeking admission to a private school—under the quota provided under Section 12(1)(c) of the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act)—must not have a government school or aided school in the “neighbourhood.”

Even before the judgment of the high court was delivered, the operation of this rule had dramatically reduced the number of private school seats open for children from the EWS. From about 1.52 lakh available seats in the academic year 2018–19, the number dropped to around 5,000 in the academic year 2019–20, a sharp fall of over 96% (Kulkarni 2019). The high court’s judgment put a seal of approval on this large-scale exclusion of underprivileged children from school.

Flawed and Muddled Judgment

In this column, I intend to dissect the flawed reasoning of this judgment and its baffling interpretation of the RTE Act. I link this to the judiciary’s approach to treating the quota for children from EWS as a charity that is offered at the sufferance of the state, rather than an essential part of the right to education, and why, if this approach is followed, a dystopian vision awaits primary education in India.

The PIL filed by the Education Rights Trust (an organisation of parents of children seeking admission under the RTE Act) raised two very basic and straightforward challenges to Rule 4: that it was contrary to the RTE Act itself, and that it was against the constitutional mandate of Article 21-A of the Constitution. It was contended that Rule 4, contrary to the provisions of Section 12(1)(c) of the RTE Act, curtails the freedom of children and parents from EWS to choose their schools, forcing them to go to government schools. This, they contended, was contrary to the intent and purpose of the RTE Act.

In dismissing the PIL, the high court wholeheartedly accepts a bizarre reading of Section 12(1)(c) of the RTE Act advanced by the Karnataka government, that the private schools’ obligation to admit students from EWS is only contingent upon the government not being able to provide schools in the neighbourhood in furtherance of its obligation under Section 6 of the RTE Act. This is an entirely flawed and baseless reading of the two provisions as, on the face of it, there is no connection between the provisions in question. The two provisions contain two independent obligations on two different sets of persons: Section 6 on the government and Section 12(1)(c) on private, unaided schools. Save for the fact that they occur in the same chapter, there is no link between the two whatsoever. Section 12(1)(c) nowhere says that the obligation of private schools to admit children from EWS categories is contingent upon the government failing, in some way, to provide enough schools. The Karnataka High Court judgment simply adds words to the statute that, in fact, go contrary to the intent of the law.

The nature of the obligation under Section 12(1)(c) was made quite clear by the constitutional bench of the Supreme Court of India in Pramati Educational & Cultural Society v Union of India (2014), that is, it was a binding obligation on private aided and unaided schools to admit students belonging to the EWS category, with the fees being reimbursed by the government (even though this judgment has its problems as I later point out). At no point does the court find this obligation contingent upon the government being unable to set up enough schools or any other such requirement. This entirely unjustifiable and baseless reading of the RTE Act is then used to uphold the rules which deny children from the EWS category admission to private schools.

At times the argument in favour of the rule bordered on the utterly absurd. At one point, the advocate general appearing for the state argued that children who went to government schools became “better citizens” than those who went to private schools (Times of India 2019). One wonders therefore why the state government thought it fit to force only children belonging to the EWS category into government schools but allow apparently dangerous private schools to flourish and thrive. Be that as it may, the court has thankfully not gone into the merits of this particular argument.

It might be tempting to see this particular judgment as Karnataka-specific and something which might only affect children in Karnataka, but if this reasoning is adopted by other high courts, all existing state rules which do not create preconditions for admission under the EWS quota would automatically be struck down as ultra vires the RTE Act. If the Karnataka High Court is right, no child from the EWS category has a right to claim admission in any private educational institution unless the state has failed to provide government-run schools, and any rules providing an automatic right to admission under the quota would be contrary to the RTE Act.

Education as Charity, Not a Right

As egregiously wrong as the Karnataka High Court judgment is, it is only the latest judicial attempt to nullify the implicit mandate of inclusion under Article 21-A and the RTE Act. The inclusion element of the RTE Act has been repeatedly emphasised by the union government and other agencies (Sarin et al 2018). Yet, courts have repeatedly refused to give the idea the primacy it deserves in context of the right to education.

To understand the judicial approach to Section 12(1)(c) of the RTE Act, one must go back to the Society for Unaided Private Schools of Rajasthan v State of Rajasthan (2012) (Rajasthan Schools) case where the Supreme Court first held that the right under Article 21-A cannot be claimed vis-à-vis unaided, private schools run by linguistic and religious minorities. In doing so, the Court set up a false dichotomy between Article 21-A and Article 30(1) of the Constitution, and made the former entirely subordinate to the latter. While upholding the constitutional validity of the Constitution (Eighty Sixth) Amendment Act, 2002 in inserting Article 21-A, the Court (by a majority of two to one) nonetheless effectively rendered minorities’ right to run educational institutions superior to the right to education. The minority judgment goes even further and renders Article 21-A subordinate to even Article 19(1)(g), the right to freedom of trade, commerce and business.

The majority’s line of thinking was affirmed by a constitutional bench of the Supreme Court in the Pramati judgment even while once again upholding the constitutional validity of Article 21-A. The fundamental error in reasoning committed both in the Rajasthan Schools case and the Pramathi case has been to use principles evolved in the context of university education (which is not a fundamental right) to determine the scope of the right to primary education, even after the latter was made a fundamental right (Kumar and Das 2014).

The necessary consequence of this judicial sleight of hand was to turn a fundamental right into state largesse. Between them, the Rajasthan Schools and Pramati judgments began the process of hollowing out the right to education of aspects of choice, quality, and inclusion. Even while ostensibly upholding large parts of the RTE Act—though they confused the regulatory and inclusion aspects of the law (Mukherjee 2014)—and applying Section 12(1)(c) to private, unaided, non-minority schools, the Court created distinctions in the enforcement of the right to education where there are absolutely none. The Court’s attempt at “balance” between Article 21-A and Article 30(1) is anything but. The linguistic or religious minority character of an institution is not in any way destroyed by admitting students from EWS categories, and even if there was a “danger,” the Court could have read down Section 12(1)(c) to hold that the minority institution could give preference to minority students from the EWS category.

When seen thus, the Karnataka state government and the high court have simply taken forward this approach of using flawed reasoning and unsustainable construction of statutes to further diminish the scope of the right to education.

Conclusions

Even without judicial dilution, the noble intent of the 86th Amendment and the RTE Act has been facing and continues to face implementation difficulties at the state government level elsewhere too (Sarin et al 2018; Mehendale et al 2015). In the case of the rules framed by the Karnataka government, we find an instance where the state government has explicitly abandoned any intention of implementing the mandate of Section 12(1)(c) contrary to the plain intent of the RTE Act, and the Karnataka High Court has supported it in the process. The logical endpoint of this judgment is a dystopia where government schools are reserved for those who cannot afford to pay the high fees charged by private schools, ensuring a segregated education system that is fundamentally at odds with the constitutional values of equality and the right to education.

References

Education Rights Trust v Government of Karnataka (2019): Writ Petition No 8028 of 2019, 31 May, Kant.

Kulkarni, Tanu (2019): “Drastic Drop in Number of RTE Quota Seats in Private Schools,” Hindu, 1 March, viewed on 10 June, https://www.thehindu.com/news/national/karnataka/drastic-drop-in-number-of-rte-quota-seats-in-private-schools/article26400982.ece.

Kumar, Alok Prasanna and Rukmini Das (2014): “Right to Education: Neither Free nor Compulsory,” Hindu, 9 May, viewed on 17 June 2019, https://www.thehindu.com/opinion/op-ed/right-to-education-neither-free-nor-compulsory/article5989866.ece.

Mehendale, Archana, Rahul Mukhopadhyay and Annie Namala (2015): “Right to Education and Inclusion in Private Unaided Schools: An Exploratory Study in Bengaluru and Delhi,” Economic & Political Weekly, Vol 50, No 7, pp 43–51.

Mukherjee, Gaurav (2014): “Whittling Away the Right to Education,” Law and Other Things, 30 May, https://lawandotherthings.com/2014/05/whittling-away-right-to-education/.

Pramati Educational & Cultural Society v Union of India (2014): SCC, SC, 8, p 1.

Sarin, Ankur, Ambrish Dongre, Praveen Khanghta, Nishank Varshney, Akriti Gaur and Ajey Sengai (2018): “Implementation of Section 12(1)(c) of the Right to Education Act,” Economic & Political Weekly, Vol 53, No 8, pp 31–38.

Society for Unaided Private Schools of Rajasthan v State of Rajasthan (2012): SCC, SC, 6, p 102.

Times of India (2019): “Government School Kids Become Better Citizens: Advocate General to Karnataka High Court,” 4 April, viewed on 10 June, https://timesofindia.indiatimes.com/city/bengaluru/govt-school-kids-become-better-citizens-ag-to-hc/articleshow/68712304.cms.

Updated On : 26th Jun, 2019

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