RIGHT TO EDUCATION: ONE FUNDAMENTAL RIGHT AT COST OF ANOTHER FUNDAMENTAL RIGHT?
“Education
imparted by heart can bring revolution in the society”
-
Maulana
Abul kalam azad
BACKGROUND:
The Right to
education was initially not included as a fundamental right in the constitution
of India and our founding fathers has included education as a Directive
principles of state policy under Part IV of the constitution of India.
Article
45 (unamended)
Provision for free and compulsory education
for children The State shall endeavour to provide, within a period of ten years
from the commencement of this Constitution, for free and compulsory education
for all children until they complete the age of fourteen years
The directive under Article 45 was confined not merely to primary education but to the education up to the age of 14 years irrespective of stage of education.
The directive under Article 45 was confined not merely to primary education but to the education up to the age of 14 years irrespective of stage of education.
The court emphasized
that solemn obligation is placed on state by Article 45 which can be discharged
by it through governmental and aided schools and that Article 45 doesn’t
require that obligation to be discharged at the expense of minority
communities.
Without making the
right to education a reality, the fundamental rights would remain beyond the
reach of large majority which is illiterate. Capitation fees is nothing but a
price for selling education and this amounts to commercialization of education.
The court observed
that capitation fees is nothing but a price for selling education and this
would amount to commercialization of education. The court took an extremely
expansive view of state obligation to provide education to everyone at all
levels. This approach created practical hurdles to meet day to day economic
issues for private educational institutions as well as state.
The approach of court
was guided by an assumption of seeing education not as an “occupation” under
sub clause (g) of clause (6) of article 19.
The Right to
education is implicit in Article 21 read with Article 41, 45 and 46 but merely
to rely on directive principles per se doesn’t mean that each and every
obligation casted by directive principles would automatically included in
purview of Article 21.
The State obligation
limited until the child attain the age of 14 years and beyond that stage, state
obligation to provide education is subject to the limits of economic capacity
and development of state. The obligation of state can be discharged by state
either through governmental schools or private aided schools.
Article 14 applies to
state Institutions and its application cannot be excluded by supplementary
activity. The court evolved a scheme regarding level of fees chargeable by
private educational institutions.
The scheme framed by
court in Unni Krishnan and
followed by government held to be a unreasonable restriction under clause 6 of
Article 19 in TMA Pai foundation case[4].
CONSTITUTIONAL (EIGHTY SIXTH AMENDMENT) ACT, 2002:
Article
21A
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
45 (amended)
The
State shall endeavor to provide early childhood care and education for all
children until they complete the age of six years
Article
51A (K)
Fundamental
duty of every citizen who is a parent or guardian to provide opportunities for
education to his child or, as the case may be, ward between the age of six and
fourteen years
Article 21A read with
sub-clause (a) of clause (1) of Article 19 has been construed as giving all
children the right to have primary education in a medium of their choice.[5]
Article 21 A also
have been construed as a fundamental right of each and every child to receive
education free from fear of security and safety so that children have a right
to receive education in a sound and safe building.[6]
RIGHT
TO FREE & COMPULSORY EDUCATION ACT:
In 2001-2002, the
Government launched Sarva Shiksha
Abhiyan to make elementary education free. However, no central
legislation was enacted to make the right a reality despite the court noting in
PA Inamdar[7].
In 2008, Ashok kumar Thakur v. UOI[8],
the court directed the Union of India to set up a law on it within 6 months.
Accordingly, the Right of children to free and compulsory
education act, 2009 (RTE) came into picture.
The Validity of RTE
was challenged in Unaided private schools of Rajasthan case and same was upheld
by apex court. However, the majority held that the section 12 & 18 of the
act is void to the extent of its applicability on Unaided minority Institutions
due to its violation to Article 30(1).
As a consequence of
this judgment, the parliament brought an amendment act of 2012 to exclude
Minority Unaided from the purview of the act.
CONSTITUTIONAL
(NINETY-THIRD AMENDMENT) ACT, 2005:
In PA Inamdar , It was held that
the state power to regulate under Article 19(6) cannot extend to reservation in
private unaided educational Institutions and would violate their fundamental
right under Article 19(1)(g) as said reservation policy is not a reasonable restriction
within meaning of Article 19(6).
Thus, to enable such
a power the parliament enacted clause 5 of Article 15 so that it can enable
itself to do which was disabled by Article 19(6).
Clause
5 of Article 15 inserted :
Nothing
in this article or in Sub-clause (g) of Clause (1) of Article 19 shall
prevent
the State from making any special provision, by law, for the
advancement
of any socially and educationally backward classes of citizens
or
for the Scheduled Castes or the Scheduled Tribes in so far as such special
provisions
relate to their admission to educational institutions including
private
educational institutions, whether aided or unaided by the State, other
than
the minority educational institutions referred to in Clause (1) of Article
30.
The Validity of
Article 15(5) was upheld by apex court in Ashok
Kumar Thakur (2008)[9]
but the Judgment gave no remark with respect to Private Unaided.
Bhandari,
J held that the Article 15(5) violates basic
structure of the constitution of India.
In
Pramati Educational and cultural Trust case[10]
The constitutional
validity of Article 21A and Article 15(5) was challenged before apex court on
ground of being violation to Article 14, 19(1)(g), 21, 30(1) and basic
structure.
Court
observations:
1.
Article 15(5) is not an exception but
an enabling provision to achieve the social justice set out in preamble and
Part-IV.
2.
TMA Pai foundation held that right to
administer private educational institutions is an occupation within Article
19(1)(g) and little % of seats reservation by state will not affect their
autonomy.
3.
PA Inamdar has clarified that
reservation policy of state on unaided Institutions is not a regulatory measure
and thus violates Article 19(1(g).
4.
Article 15(5) has a very limited
purpose. i.e. for admission and nothing more. If state do more than for which
it is enabled by Article 15(5) then it would certainly be no longer can claim a
immunity under Article 15(5) and will straight away be in violation to Article
19(1)(g).
5.
Rights of minority under Article 30(1) will
not be defeated if they give admission to non minority into their college. Due
to over lapping Interest of Socially educationally backward classes and that of
minority, the parliament has excluded minority institutions from purview of Article
15(5).
6.
The essence of secularism is to
promote and preserve different people and same is done by excluding Article
30(1) and thus secularism is not violated.
7.
Article 21A is to be harmonious
constructed with Article 19(1)(g) and Article 30(1).
8.
Article 21A has created a new power to
the effect of voluntariness of freedom under Article 19(1). This power is an
Independent power & different from Article 19(2) to (6).
9.
So long as these additional power is
been used to fulfill objectives of preamble and Directive principles, there is
no violation of Fundamental right under sub-clause (g) of clause (1) of Article
19.
10.
Section 12 of RTE mandates private
unaided educational institutions to give 25 % reservation to children ranging
age 6 go 14 years. Their expenses will be reimbursed by state. Thus, in any
manner it is only the state who is taking the charge to perform its obligation
under Article 21A.
Decision:
1.
Minority whether aided or unaided
under Article 30(1) cannot be touched upon by RTE act, 2009
2.
RTE continue to be applied on private
unaided because of Article 15(5) plus additional power of state under Article
21A.
AUTHOR
REMARKS:
1.
The court in this case has upheld the law
which infringing the fundamental right under Article 19(1)(g) and has failed to
pass the test of reasonable restrictions
under Article 19(6) but taking recourse to Article 21A. By doing the same, the
court trying to evolve the doctrine of exclusivity which has become a dead letter
now.
The fundamental rights conferred
by Part III are not distinct and mutually exclusive rights. Each freedom has
different dimensions and merely because the limits of interference with one
freedom are satisfied, the law is not freed from the necessity to meet the
challenge of another guaranteed freedom. The decision in A. K. Gopalan case
gave rise to the theory that the freedoms under Articles 19, 21, 22 and 31 are
exclusive - each article enacting a code relating to the protection of distinct
rights, but this theory was overturned in R. C. Cooper case where Shah, J.,
speaking on behalf of the majority pointed out that “Part III of the
Constitution weaves a pattern of guarantees on the texture of basic human
rights. The guarantees delimit the protection of those rights in their allotted
fields they do not attempt to enunciate distinct rights.[11]
2.
The court justification for giving
additional power to state under Article 21A so as to curtail the freedom under
Article 19(1)(g) is for giving effect to the Directive principles under Part-IV
& objectives of Preamble.
Conditions of freedom and a
vibrant assertion of civil and political rights promote a constant review of
the justness of socio-economic programmes and of their effectiveness in
addressing deprivation and want. Scrutiny of public affairs is founded upon the
existence of freedom. Hence civil and
political rights and socio-economic rights are complementary and not mutually
exclusive[12].
The Indian Constitution has
maintained a balance between the fundamental freedoms and the DPSP, therefore,
giving absolute primacy to one, would disturb the harmony and balance sought by
the founding fathers of our constitution. The goals set to be achieved in part
4 are to be achieved by purity of mean and not at the cost of fundamental
freedoms. These two should go hand in hand[13]
CONCLUSION:
The
fundamental rights represent the basic values cherished by the people of this
country they were included in the Constitution in the hope and expectation that
one day the tree of true liberty would bloom in India. since the Vedic times
and they are calculated to protect the dignity of the individual and create
conditions in which every human being can develop his personality to the
fullest extent. They weave a “pattern of guarantees on the basic-structure of human
rights” and impose negative obligations on the State not to encroach on
individual liberty in its various dimensions. It is apparent from the
enunciation of these rights that the respect for the individual and his
capacity for individual Volition which finds expression there is not a
self-fulfilling prophecy. Its purpose is to help the individual to find his own
liability, to give expression to his creativity and to prevent governmental and
other forces from ‘alienating’ the individual from his creative impulses.[14]
Hence,
State cannot use one Fundamental right or Directive Principles to curtail
another Fundamental right as by doing the same, the idea of achieving
constitutionalism, the goal of egalitarian society, the concept of pluralism and the constitutional morality
would remain a social distancing objective.
DISCLAIMER:
The views and opinions expressed in this article are those
of the authors and do not necessarily reflect the official policy or position
of any agency of the Indian government. Examples of analysis performed within
this article are only examples. They should not be utilized in real-world
analytic products as they are based only on very limited and dated open source
information. Assumptions made within the analysis are not reflective of the
position of any Indian government State.
The author is a Practicing company secretary and founder of
Budhiraja & co. He is a Second Year
Law student at faculty of law, University of Delhi besides associated as Para
Legal volunteer with Delhi State Legal Service authority and core member of
moot court society of its college.
+919654055315
[1]
AIR 1958 SC 956
[2]
AIR 1992 SC 1858
[3]
AIR 1993 SC 2178
[4]
AIR 2003 SC 355
[5]
Associated Management of Primary and secondary schools in Karnataka Karnataka (2008), 4 Kar LJ 593
[6]
Avinash Mehrotra (2009) 6 SCC 398
[7] PA
Inamdar (2005) 6 SCC 537
[8]
Ashok kumar Thakur (2008) 6 SCC 1 : (2008) 5 JT 1
[9]
(2008) 5 JT 1
[10] MANU/SC/0311/2012
: (2012) 6 SCC 102]
[11] Maneka
Gandhi v. Union of India, AIR 1978 SC 597
[12] Justice
K.S. Puttaswamy v. Union of India (2017)10SCC 1
[13] MANU/SC/0075/1980
: (1980) 3 SCC 625]
[14] Granville
Austin in ‘The Indian Constitution - Cornerstone of a Nation
Comments
Post a Comment