Bombay High Court
Vikas Motewar vs The State Of Maharashtra And 5 Ors on 15 March, 2017
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 717 OF 2016
DR.VIKAS MOTEWAR ... PETITIONER
Versus
THE STATE OF MAHARASHTRA
AND OTHERS ... RESPONDENTS
...
Mr.Jaydev Trivedi for the petitioner.
Mr.Navroz Seervai, Sr.Advocate with Mr.Kamal Katha, Z.A.Jariwala
and Ms.Jyoti Ghag, Mr.Rajendra Jain i/b Thakore Jariwala &
Associates for respondent Nos.2 & 3.
Ms.Poornima Kantharia, Govt.Pleader for respondent Nos.1, 4 and 6.
CORAM : DR.MANJULA CHELLUR, C.J.
AND M.S.SONAK, J.
RESERVED ON : 1st DECEMBER, 2016
PRONOUNCED ON : 15th MARCH, 2017
ORAL JUDGMENT :-
1 Petitioner in the status of natural guardian being father
of Ms.Durva Motewar, is before this Court, seeking direction against
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the respondents to allow Ms.Durva to continue her future education
in the institution of respondent nos.2 and 3 by admitting her to 7 th
Std to be held in the month of April 2016, and further allow her to
complete her studies and examination of 4th and 6th Standard.
2 Other reliefs sought are for a direction directing
Respondent no.4 to take action against the respondent nos.2 and 3 to
implement the order dated 29th September 2015. The petitioner has
sought interim relief to allow Ms.Durva to sit in 7 th Std and to give
examination of 7th Std to be held in the month of April 2016.
3 The background in which the present Writ Petition is
filed is as under :
The respondent no.3 - Lokhandwala Foundation School
is an unaided minority institution, and the petitioner admitted his
daughter in this school from nursery class. When Ms.Durva was
studying in 4th Std, she remained absent for three months during the
second term of the school. However, shortage of attendance was
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condoned and management permitted her to appear for the final
examination. The consequences of the same is that she was
promoted to 6th Std for the Academic Year 2013-2014.
4 During the Academic year 2013-14, she attended the
school between June to August, and abruptly absented from school
since 30th August 2013. The petitioner was forced to go to his native
place at Nanded along with his family members in order to attend to
his family disputes which were pending for a long time. For about 7
months, the entire family stayed at Nanded. During the month of
December 2013, petitioner was asked to pay Rs.31,731/- as school
fees. Then, he explained to them the family difficulties, and
informed them that his daughter may not be able to attend school for
some days. However, on 24th January 2014, an e-mail was sent to
the petitioner, intimating him of removal of Ms.Durva from the
register of the school. He informed the school authorities that
Ms.Durva was studying at home, and she is capable of attending
examination of 5th Std.
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5 Only in the month of March 2014, the family disputes
came to an end, and the petitioner and his family returned to
Mumbai in March 2014. Immediately, he met the Principal of the
School on 29th March 2014, and by that time, examination of 5 th Std
had already commenced from 27th March. Though Principal after
discussion, informed the petitioner that after discussing the matter
with the management of the school, he could come back to him.
Later, she, however, informed him that the Management was not
keen to allow his daughter to appear for the examination. Explaining
his problem, he sought intervention of the 6th respondent seeking
assistance in terms of Right to Education Act, 2009 (for short "RTE
Act"). 6th Respondent directed 3rd respondent to promote Ms.Durva
Motewar to 6th Std.
6 On 12th June 2014, when 3rd respondent School
reopened, in spite of direction to respondent nos.5 and 6 much prior
to the reopening of the school, 3 rd respondent did not heed to the
request of the petitioner to allow his daughter to sit in 6 th Std.
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Again, he had to approach respondent nos.5 and 6 who arranged a
joint meeting on 14th July 2014. In the said meeting, 5th respondent
explained to the representatives of 3rd respondent the guidelines and
the provisions of RTE Act and requested them to allow Ms.Durva to
continue her studies without holding her back in 5th Std.
7 In spite of repeated request and persuasion to comply
with the directions of Education Department in terms of RTE Act, at
last on 13th August 2014, 3rd respondent informed the petitioner that
they are ready to admit her only to Class 5. After several attempts
for amicable settlement, 6th respondent had to pass an order dated
12th March 2015 directing the respondent nos.2 and 3 to allow
Ms.Durva to continue her studies from 6th Std for the Academic Year
2014-15. 3rd respondent was informed that if the orders are not
complied with, they would withdraw the 'NOC' granted to them.
This also did not compel the respondent no.3 to comply with the
directions.
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8 According to the petitioner, on 2 nd September 2015, an
order came to be passed by Maharashtra State Commission for
Protection of Child rights in terms of Maharashtra Right of Children
for free and Compulsory Education Rules, 2011 (for short 'Rules of
2011) directing the respondent authority to take action so that
Ms.Durva is able to complete her elementary education. This order
was also violated by respondent no.3.
9 Respondent no.4 authority even intimated respondent
no.4 that they would proceed to take action in terms of section 12(3)
and 18(3) of the RTE Act. Though 3rd respondent allowed Ms.Durva
to sit in 7th Std class appropriate to her age as on 2 nd December 2015,
however, on 15th October 2015 at 8.00 am, when Ms.Durva went to
the school, she was not allowed to enter the school premises.
Repeated attempts to attend the school was not fulfilled resulting in
mental agony to the minor daughter Ms.Durva and also her parents
i.e. petitioner and his wife.
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10 Petitioner is before this Court complaining the conduct of
respondent nos.2 and 3, and according to him, there is intentional
deprivation of Right to Education to his daughter at the instance of
respondent nos.2 and 3 and they are liable for consequences in terms
of RTE Act since they flouted the direction of the respondent
authorities. He mainly relies upon provisions of section 16 of RTE
Act which says that no child admitted to the school be held back in
any class or expelled from school till completion of elementary
education.
11 According to them, in spite of intervention of District
Child Protection Officer, no solution is given to the petitioner and his
daughter. Therefore, he is knocking at the doors of this Court to give
relief to his daughter who sincerely intends to continue her
education with third respondent school and her desire is nothing but
a right conferred on her in terms of RTE Act.
12 As against this, the stand of the State is that State would
request the State syllabus school in the neighbouring area where the
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petitioner resides for admitting the child to 8 th Std in Maharashtra
Board School. However, the child and the parents refused to accept
the said offer by contending that Ms.Durva has to study in the 3 rd
respondent school. The State has expressed its inability to do any
assistance in furtherance of the cause of the petitioner. According to
the State, the management of the school being run by a minority
community, they have protection in terms of Article 30 of the
Constitution of India.
13 Learned counsel appearing for respondent nos.2 and 3
contends that there is no obligation on the part of the respondents to
admit Ms.Durva to 8th Std in the school since they have protection as
a minority institution. They have also placed reliance on Pramati
Educational and Cultural Trust Vs. Union of India, [(2012) 6 SCC
102].
14 With the above facts, we proceed to analyse the facts of
the present case vis-a-vis the Right to Education Act, and the claim of
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the respondent nos.2 and 3 that they are protected as minority
institution under Article 30 of the Constitution, therefore, there is no
obligation to comply with the directions of the respondent
authorities.
15 According to the petitioner, there is total arbitrariness on
the part of respondent nos.2 and 3 in not complying with the
provisions of RTE Act since no child admitted in the school could be
held back in any class or expelled from the school till completion of
elementary education. He also contends that respondent no.4 has
not taken any coercive action to complete the exercise undertaken in
terms of order dated 29th September 2015. Intervention of District
Child Protection Officer was also violated. Therefore, according to
them, the Writ Petition has to be allowed since right of Ms.Durva
under RTE Act is well established in the present case.
16 The controversy which arises for consideration of the
Court is whether in terms of Act of 2009 and the Rules of 2011, they
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would persuade the court to conclude that the 2nd and 3rd
respondents could be compelled to readmit Ms.Durva to their school
since she is expelled from the school.
17 United Nations Universal Declaration of Human Rights
adopted in 1948, says "Everyone has the right to education.
Education shall be free, at least in the elementary and fundamental
stages. Elementary education shall be compulsory. Technical and
professional education shall be made generally available, and higher
education shall be equally accessible to all on the basis of merit
(Article 26). No doubt, the Right to Education has, therefore, long
been recognized by International Treaties as encompassing not only
access to educational proficiency, but also an obligation to eliminate
discrimination of all levels of education systems to set minimum
standard and to improve quality.
18 The Indian Constitution is a document committed to
social justice as well. Literacy paves the path for equal opportunity.
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Therefore, education has to be recognized as the essence of social
transformation of a person. The Supreme Court, while considering
the right to education as a fundamental right in Mohini Jain Vs.
State of Karnataka (1992) 3 SCC 666 opined that "the right to
education flows directly from the right to life. The right to life and
the dignity of an individual cannot be assured unless it is
accompanied by the right to education." In the case of J.P.
Unnikrishnan Vs. State of Andhra Pradesh, (1993) 1 SCC 645,
Five Judge Bench of the Apex Court opined that the Right to
Education further means that the citizen has a right to call upon the
State to provide education and facilities to him within the limits of its
economic capacity and development. Similarly, in the case of Bandu
Mukti Morcha etc. Vs. Union of India, 1997(5) SCC 285, after
referring to earlier judgments of the Apex Court, the Supreme Court
opined that even right to education at the initial stage was to be
fundamental right. Therefore, the State has an obligation to provide
facilities and opportunities so as to prevent exploitation of childhood
due to indigence and vagary.
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19 Several provisions of the Act are relevant in order to
appreciate the issue before us. It is not in dispute that over a period
of three months during second term when she was in 4 th Std, she
remained absent, but however, shortage of attendance came to be
condoned. Further, she was promoted to 5 th Std for the Academic
Year 2013-14. Again from August 2013 onwards, she absented by
not attending 5th Std for about 7 months. Ultimately, her name came
to be removed from the register of the school in January 2014 which
was communicated to the natural guardian of the child. The
petitioner claims that from March 2014 onwards, his family shifted
back to Mumbai from Nanded. She was allowed to appear for 5 th
Std.
20 Article 21-A of the Constitution reads as under :
"21A. Right to Education.- 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. "
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21 One has to read terms of obligation imposed on the State
to provide free and compulsory education. It is well settled that the
State has an obligation to provide free and compulsory elementary
education. Since it is the duty of the welfare state to provide free
and compulsory education, Article 21-A of the Constitution was
introduced by 86th Amendment which can be termed as legislative
history. The question is whether any other institution or
establishment or organization can be imposed with the obligation of
free and compulsory elementary education. This is answered in
many of the judgments which are referred to in the later part of the
judgment.
22 Recognizing the obligation of the State under Article 45
(directive principles of State policy) in time-bound, time-frame, State
was required to provide free and compulsory education for all
children till the age of 14 years. This directive principle was
considered as yeomen duty of the State in various judgment of the
High Courts and Apex Court. It imposes an obligation on the State
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alone as indicated in several judgments.
23 On one hand, we have the right to education Act which
capitulates the vision and commandment of Article 21-A of the
Constitution. Section 3 of the Right to Education Act is a visionary
plan how State shall provide free and compulsory education to all
children between the age of 6 to 14 years.
24 The Right to Education Act, 2009 is a detailed and
comprehensive piece of legislation which includes various provisions
regarding schools, teachers, curriculum, evaluation, access and
specific division of obligation and responsibility of different
stakeholders. It also prohibits physical punishment, expulsion or
detention of a child. It provides free and compulsory education to all
children in India between the age group of 6 to 14. Until completion
of elementary education, no child shall be held back or required to
pass a board examination.
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25 Section 4 envisages special provisions providing that
where a child of about 6 years of age has not been admitted in any
school, or though admitted, could not complete his or her
elementary education, then he or she shall be admitted in a class
appropriate to his or her age. Proviso says, if the child is directly
admitted in a class appropriate to his or her age, he or she shall, in
order or to be at par with others, have a right to receive special
training, in such manner, and within such time limit as may be
prescribed. Further proviso provides that a child who is admitted to
elementary education, shall be entitled to free education till
completion of elementary education even after 14 years.
26 In terms of Section 2(c) of RTE Act, child means a male
or female child between the age of 6 to 14 years.
27 Section 2(f) defines elementary education as the
education from 1st Class to 8th Class. Section 2(k) refers to Parents,
means either the natural guardian or step or adopted father or
mother of a child. Section 2(n) defines School which means any
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recognized institution imparting elementary education, including
unaided school not receiving any kind of aid or grant to meet its
expenses from the appropriate Government or local authority.
28 Section 3(1) confers right on child to have free and
compulsory education. According to the petitioner, the School in
question is a School in the neighborhood. Therefore, the child has
every right to insist to join the same school.
29 Section 10 refers to duty of parents and guardians which
reads as under :
10. Duty of parents and guardian: It shall be the duty
of every parent or guardian to admit or cause to be
admitted his or her child or ward, as the case may be,
to an elementary education in the neighbourhood
school.
30 This section imposes an obligation on every parent or
guardian to admit his child or ward in the neighborhood school.
Apparently, when the petitioner shifted his family to Nanded from
Mumbai, he had not sent his daughter to neighborhood school at
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Nanded which means he neglected his responsibility and obligation
to send his child to the neighborhood school at Nanded.
31 Section 15 confers an obligation on the part of the school
not to deny admission to a child which reads as under:
15 No denial of admission: A child shall be
admitted in a school at the commencement of
the academic year or within such extended
period as may be prescribed:
Provided that no child shall be denied
admission if such admission is sought
subsequent to the extended period:
Provided further that any child admitted after
the extended period shall complete his studies
in such manner as may be prescribed by the
appropriate Government.
32 Section 16 refers to relevant provisions required to be
considered in this petition i.e. no child admitted in a School shall be
held back in any class or expelled from school till completion of
elementary education and the same reads as under :
16 Prohibition of holding back and expulsion.
No child admitted in a school shall be held back in
any class or expelled from school till the completion
of elementary education.
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33 Section 29 refers to Curriculum and Evaluation
procedure which indicates how the curriculum must be prepared and
how the evaluation procedure must be done, which reads as under:
29. Curriculum and evaluation procedure: (1) The
curriculum and the evaluation procedure for elementary
education shall be laid down by an academic authority
to be specified by the appropriate Government, by
notification.
(2) The academic authority, while laying down the
curriculum and the evaluation procedure under
subsection (1), shall take into consideration the
following, namely:--
(a) conformity with the values enshrined in the
Constitution;
(b) all round development of the child;
(c) building up child's knowledge, potentiality and
talent;
(d) development of physical and mental abilities to
the fullest extent;
(e) learning through activities, discovery and
exploration in a child friendly and child-centered
manner;
(f) medium of instructions shall, as far as
practicable, be in child's mother tongue;
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(g) making the child free of fear, trauma and anxiety
and helping the child to express views freely;
(h) comprehensive and continuous evaluation of
child's understanding of knowledge and his or her
ability to apply the same.
34 Section 30 refers to examination and completion
certificate which reads as under:
30. Examination and completion certificate: (1)
No child shall be required to pass any Board
examination till completion of elementary education.
(2) Every child completing his elementary
education shall be awarded a certificate, in such form
and in such manner, as may be prescribed.
35 On the other hand, we have Articles 29 and 30 which
recognizes the rights of the minorities to establish and administer
schools of their choice, be linguistic or other minorities. Several
judgments have analyzed this enactment of the centre with the
provisions of Constitution of India. There is an obligation on all the
stake-holders to implement the provisions of Right to Education Act.
While imposing to complete the obligation to provide free and
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compulsory education to all children of the specified age within the
State, one should not transgress upon the rights conferred upon
others under constitution. Otherwise, it would amount to
transgressing the constitutional limitation. Education, no doubt is
brought under the concept of Right to live under Article 21 of the
Constitution.
36 In the above background, we have to analyze various
judgments with regard to Education, in general, Right to Education
Act and the constitutional protection conferred upon certain sections
of the society.
37 We now proceed to place on record several judgments
which are dealt with educational need of the citizens and how right
to education becomes a fundamental right.
38 In the case of N. Kunhichekku Haji (dead) by LRs Vs.
State of Kerala & Others, 1995 Supp(2) SCC 382, the Bench of
the Apex Court held that from primary to upper primary school,
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application of mind must be there while considering the educational
need of the locality. Their Lordships while considering the personal
interest as against public interest opined that larger interest of
children who have fundamental right to education must be the
primary consideration while procedural technicalities should not be
allowed to subsume the substance.
39 Again, in the case of Gram Vikas Shikshan Prasarak
Mandal, Sondoli, Vs. State of Maharashtra & others, 2001(1)
Mh.L.J 776, while considering the education of the children vis-a-vis
Article 21 of the Constitution, Their Lordships opined that education
until the attainment of age of 14 years is a fundamental right
guaranteed under Article 21 of the Constitution since right to
livelihood includes right to acquisition of knowledge. They also
discussed about the basic considerations which have to be borne in
mind by the State in terms of norms and standards for establishment
of new primary and secondary schools.
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40 In the case of Warana Education Society, Sagaon Vs.
State of Maharashtra & Ors, 2007(4) Mh.L.J, it was held that the
fundamental principle that has to be borne in mind is that provision
of primary education is a constitutionally protected fundamental
right. The State has a constitutional duty to provide within the
limits of its economic capacity and development the right to
education. When private institutions which enter the arena of
providing education, perform the role of supplementing the function
of the State, the establishment and functioning of those institutions
must therefore be subject to regulation by the State to secure the
interest of the students and teachers.
41 In the case of Anil s/o Panjabrao Nahate & Anr Vs.
State of Maharashtra, 2011 (1) Mh.L.J, 86, it was held by the
Division Bench of this Court that the State Government is expected
to keep in view the provisions of Article 21-A so also the provisions
of Article 51-A of the Constitution of India vis-a-vis the provisions of
Right of Children to Free and Compulsory Education Act (35 of
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2009) (for short "the Act of 2009") while dealing with the proposal
for establishing/starting a new school or for shifting the established
school, that it is established/shifted within such area where no
school is so established. Therefore, the criterion for establishing/
shifting the school was to be with regard to convenience and need of
the children for whom the school is established, and not the desire
and convenience of institutions/managements.
42 After analyzing the principles laid down so far as the
constitutional duty of the State to provide within the limits of its
economic capacity and development education to its citizens, one
has to see now whether the right provided under the Right to
Education Act vis-a-vis the provisions of the Act, especially with
reference to Section 16 of the Act with that of provisions of
Constitution protecting the rights of the minorities. Admittedly, the
respondent - management which is running the school in question
in which Ms.Durva was studying is a minority institution. We now
proceed to refer to the relevant judgments.
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43 Way back in 1974, in the case of The Ahmedabad St.
Xavier's College Society and Anr. Vs. State of Gujarat & Anr,
(1974)1 SCC 717, Their Lordships of the Apex Court had an
occasion to deal with Article 30, the scope and ambit of the rights of
religious and linguistic minorities to establish and administer
educational institutions of their choice. While considering the
controversy whether Article 30 extends to establishing educational
institutions only for conserving their language, script or culture, or
whether Article 30(1) of the Constitution is to be read subject to
Article 29(1), Their Lordships came out with four rights.
(i) First is the right of any section of the resident
citizens to conserve its own language, script or
language or culture in terms of Article 29(1).
(ii) The second right is the right of all religious and
linguistic minorities to establish and administer
educational institutions of their choice as mentioned in
Article 30(1).
(iii) Third right is the right of an educational
institution not to be discriminated against in the
matter of State aid on the ground that it is under the
management of a religious or linguistic minority as
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mentioned in Article 30(1).
(iv) Last and the fourth one is the right of the citizen
not to be denied admission into any State maintained
or State-aided educational institution on the ground of
religion, caste, race or language as mentioned in Article
29(1) of the Constitution.
44 While analyzing Articles 29 and 30, Their Lordships were
of the opinion that it would lead to wrong conclusion if one reads
Article 30(1) as restricting the right of minority to establish and
administer educational institutions of their choice only to cases
where such institutions are concerned with language, script or
culture of the minorities. Their Lordships further opined that Article
29 confers the fundamental right on any section of the citizen which
will include the majority section whereas Article 30(1) confers the
right on all minorities. Again, Article 29(1) is concerned with
language, script or culture while Article 30(1) deals with minorities
of the nation based on religion or language. Thirdly, Article 29(1) is
concerned with the right to conserve language, script or culture
whereas Article 30(1) deals with the right to establish and
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administer educational institutions of the minorities of their choice,
and lastly, the conservation of language, script or culture under
Article 29(1) may be by means wholly unconnected with educational
institutions and similarly, establishment and administration of
educational institution by a minority under Article 30(1) may be
unconnected with any motive to conserve language, script or culture.
Therefore, a minority may administer an institution for religious
education which is wholly unconnected with any question of
conserving a language, script or culture. It is further held that the
scope of Article 30 rests on linguistic or religious minorities and no
other sections of citizens of India has such a right.
45 Ultimately, it was held that the whole object of
conferring the right on minorities under Article 30 is to ensure that
there will be equality between the majority and the minority. If the
minorities do not have such special protection they will be denied
equality. Hence, it was held that it was not possible to exclude
secular education from Article 30.
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46 Per Justice Khanna, one of the Judges on the bench, by
these provisions, a liberal generous and sympathetic approach is
reflected in the Constitution in the matter of preservation of the right
of minorities so far as their educational institutions are concerned.
Since constitution practices rights of the minority thereby no one
could deprive the minorities of a sense of belonging, of a feeling of
security, of a consciousness of equality and of the awareness that the
conservation of their religion, culture, language and script as also
the protection of their educational institutions is a fundamental right
enshrined in the Constitution. Therefore, the same generous, liberal
and sympathetic approach should weigh with the courts in
construing Articles 29 and 30 as marked in the deliberations of the
Constitution-makers in drafting those articles and making them part
of the fundamental rights. It was further held that the minorities
may be based either on religion or language. The right conferred
upon the said minorities is to establish and administer educational
institutions of their choice. It was further held that the word
"establish" indicates the right to bring into existence, while "the right
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to administer an institution" means the right to effectively manage
and conduct the affairs of the institution. Administration connotes
management of the affairs of the institution. The management must
be free of control so that the founders or their nominees can mould
the institution as they think fit and in accordance with their ideas of
how the interest of the community in general, and the institution in
particular will be served. The words "of their choice" qualify the
educational institutions and opines that the educational institutions
established and administered by the minorities need not be of some
particular class; the minorities have the right and freedom to
establish and administer such educational institutions as they
choose.
47 Justice Khanna further opined that Articles 29(1) and
30(1) deal with distinct matters. Therefore, one cannot circumscribe
or restrict the right conferred by clause (1) of Article 30 by reading
in it any limitation imported from clause (1) of Article 29. While
referring to the distinction between Article 29(1) and 30(1) of the
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Constitution, Their Lordships opined that Article 29(1) confers a
right on any section of citizens residing in the territory of India or
any part, the right to conserve its language, script or culture, and it
does not speak of any minority, religion or otherwise, while the
beneficiary of the right under Article 30 is a minority, either religious
or linguistic. Therefore, while under Article 29(1) confers rights in
respect of three subjects viz., language, script or culture, Article
30(1) deals with only the right to establish and administer
educational institutions, and further opined that Article 29(1) cannot
limit the width of Article 30(1). Therefore, the right guaranteed to a
religious or linguistic minority under Article 30(1) is the right to
establish any educational institution of its choice. They further
opined that Regulations which will serve the interest of the students,
regulations which will serve the interests of the teachers are of
paramount importance in good administration. Regulations in the
interest of efficiency of teachers, discipline and fairness in
administration are necessary for preserving harmony among
affiliated institutions. Regulations are, therefore, necessary to see
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that there are no divisive, or disintegrating forces in administration.
The right of a minority to administer its educational institutions
involves, as part of it, a correlative duty of good administration.
This was the view of Justice A.N. Ray and Justice D.G. Palekar, while
opinion of Justice Khanna was to administer educational institutions
does not, however, prevent the making of reasonable regulations in
respect of those institutions. Therefore, the right to administer
educational institutions can plainly not include the right to
maladminister. It was further opined that Regulations are required
in the true interest of efficiency of instruction, discipline, health,
sanitation, morality, public order and the like may undoubtedly be
imposed. Such. regulations are not restrictions on the substance of
the right which is guaranteed under Article 30(1) of the
Constitution. His Lordship also referred to Sidhajbhai Sarabhai Vs.
State of Bombay, (1963) 3 S.C.R. 837, wherein it was held that
educational institutions under the guise of exclusive right of
management, if decline to follow the general pattern it cannot be
allowed and should prevent minority institutions to fall below the
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standards of excellence expected. Though the management must be
left to them, they may be compelled to keep in step with others.
Therefore, minorities have the right to establish and administer their
educational institutions, but balance has to be kept between the two
objectives, that of ensuring the standard of excellence of the
institution, and that of preserving the right of' the minorities.
Therefore, the unrestricted nature of a right does not prevent the
making of regulations relating to the enforcement of that right.
48 In the case of St.Stephen's College Vs. University of
Delhi, (1992) 1 SCC 558, after referring to Sidhajbhai Sarabhai
Vs. State of Bombay (supra). and also The Ahmedabad St.Xavier's
College Society & Anr Vs. State of Gujarat (supra), Their
Lordships opined that the administration of educational institutions
of their choice under Article 30(1) means management of the affairs
of the institution. This management must be free from control so
that the founders or their nominees can mould the institution as they
think fit, and in accordance with their ideas of how the interests of
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the community in general and the institution in particular will be
best served. However, the standards of education are not part of the
management as such. The standard concerns the body politic and is
governed by considerations of the advancement of the country and
its people. Such regulations do not bear directly upon management
although they may indirectly affect it. The State, therefore has the
right to regulate the standard of education and allied matters.
Minority institutions cannot be permitted to fall below the standards
of excellence expected of educational institutions. It was further
held that so long as the right of minority to manage educational
institution is not taken away, the State is competent to make
regulatory legislation.
49 In the case of Islamic Academy of Education and Anr
Vs. State of Karnataka & Others, (2003) 6 SCC 697, while
considering the right of minorities under Article 30(1), His Lordship
Justice S.B. Sinha opined that regulations can also be framed to
prevent maladministration as also for laying down the standard of
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education, teaching, maintenance of discipline, public order, health
and morality. It was further held that Article 30(1) of the
Constitution does not confer an absolute right. Since exercise of
such right under Article 30(1) is subject to permissible State
regulations with an eye on preventing maladministration, the
regulatory measures are necessary for ensuring orderly, efficient and
sound administration. The regulatory measures can be laid down by
the State in the administration of minority institutions. Therefore,
the right to administer does not mean the right to maladminister,
and the right is not free from regulation.
50 In the case of P.A. Inamdar & Others Vs. State of
Maharashtra & Ors, (2005) 6 SCC 537, while considering the
admission procedure and fee structure in the professional unaided
(minority and non-minority) educational institutions, Their
Lordships opined that merely because Article 30(1) has been
enacted, educational institutions do not become immune from the
operation of regulatory measures because the right to administer
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does not include the right to mal-administer. They also referred to
T.M.A. Pai Foundation Vs. State of Karnataka, (2002) 8 SCC 481,
and reiterate that any regulation framed in the national interest
must necessarily apply to all educational institutions, whether run by
the majority or the minority. They further opined that a balance has
to be struck between two objectives (i) that of ensuring the
standards of excellence of the institution, and (ii) that of preserving
the right of the minority to establish and administer its educational
institution. Subject to reconciliation of the two objectives, any
regulation accompanying affiliation or recognition must satisfy the
4(four) tests: (i) the test of reasonableness and rationality, (ii) the
test that the regulation would be conducive in making the institution
an effective vehicle of education for the minority community or
persons who resort to it. (iii) It is directed towards maintaining
excellence of education and efficiency of administration so as to
prevent the institution falling in standards. (iv) that there is no in-
road on the protection conferred by Article 30(1) of the Constitution,
that is, by framing the regulation the essential character of the
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institution being a minority educational institution, is not taken
away.
51 The Regulations could be to prevent exploitation of
students or the teaching community.
52 In the case of Secretary, Malankara Syrian Catholic
College Vs. T. Jose and others, (2007) 1 SCC 386, it was held that
aided minority educational institutions are bound by the terms and
conditions of service to the extent that regulations made by the State
are applicable. Therefore, all regulations that are made to regulate
the administration of educational institution and grant of aid in
general will apply to minority educational institutions except to the
extent that they interfere with the overall administrative control by
the management over the staff or abridge/dilute in any other
manner, right to establish and administer educational institution.
53 In the case of Sindhi Education Society & Another Vs.
Chief Secretary, Government of NCT of Delhi & others, (2010) 8
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SCC 49, the basic question which arose for consideration before the
Supreme Court was the extent of right to establish, administer and
manage institutions by linguistic minorities, the extent of control,
restrictions that can be imposed by the State and that of the right of
a minority institution to receive grant in aid. It was held that the
appellant being a minority institution and the society is one which
enjoys status of linguistic minority and thus, is entitled to all the
constitutional benefits and protection under Articles 29 and 30 of
the Constitution.
54 In the case of T. Varghese George Vs. Kora K. George
& Others, (2012) 1 SCC 369, Their Lordships again affirmed the
earlier view of the Apex Court that right to establish and administer
educational institutions does not include right to maladminister.
55 In the case of Society for Unaided Private Schools of
Rajasthan Vs. Union of India, (2012) 6 SCC 1, Their Lordships
beautifully explained as to what is the role of primary or elementary
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education under Right to Education Act. They also referred to
extent of enforceability on non-Stake holders i.e. whether the
provisions of the Act could be enforced against unaided minority
and non-minority schools. Per majority, they opined that provisions
of section 12 and section 18(3) i.e. reservation of 25% of the seats
for admission in Class-I based on criterion of economic or financial
backwardness from the neighborhood, and also withdrawal of
recognition u/s.18(3) of the Act for non-compliance with specified
norms and requirements, including non-compliance of Section
12(1)(c) & (b). Per majority, they opined that Section 12(1)(c) and
Section 18(3) infringes fundamental freedom guaranteed to unaided
minority schools under Article 30(1) of the Constitution and,
consequently, applying principle of severability, they opined that
Right to Education Act shall not apply to such schools. They further
opined that the manner in which the obligation under Article 21-A
has to be discharged, is left to the State to be determined by law.
Thus, the State may, by law, decide to provide free and compulsory
education to all children of the specified age through its own
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schools, or through government aided schools, or through unaided
private schools. Thus, Courts are required to decide whether such
impugned law infringes a fundamental right within the limits
justified by the directive principles or whether it goes beyond them.
They proceeded to analyze fundamental rights vis-a-vis the directive
principles. In other words, Their Lordships were of the opinion that
the fundamental rights have to be interpreted in the light of the
directive principles of State policy. In paragraph nos,27, 28, 32 and
33, while analyzing the two aspects of fundamental rights, Their
Lordships opined that free and compulsory education under Article
45, prior to constitutional 86th Amendment Act of 2002, is not the
same thing as to provide free and compulsory education. By reading
the word "Education" into Article 21, it declared education to fall
within the contours of right to live. In order to provide for
implementation of that right to access to education, Article 21-A is
child-centric and not institution-centric. It was held that the said
Act was enacted primarily to remove all barriers (including financial
barriers) which impede access to education. Therefore, they opined
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that the restriction imposed to admit 25% children in Class-I under
Section 12(1)(c) of the Right to Education Act, 2009 by imposing
obligation on unaided minority, it cannot be termed as 'an
unreasonable restriction' since it cannot be said as a transgress of
any constitutional limitation. Since the Right to Education Act of
2009 intended to set up an intrinsic regime of providing Right to
Education to all children by providing the required infrastructure
and compliance of all norms and standards was also intended to be
imposed not only on the State, but also on the parent-guardian of
every child, unlike other fundamental rights. There is a reciprocal
agreement between the State and the parents and placed an
affirmative burden on all stake-holders in our civil society by
enacting Right to Education Act of 2009. The primary obligation to
provide free and compulsory education to all children of the
specified age is on the State. However, the manner in which said
obligation will be discharged by the State has been left to the State
and determined by law. It can be achieved either through schools of
the Government of the State, or through aided schools or through
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private schools so long as law made in the regard does not
transgress any other constitutional limitation.
56 The constitutional bench of the Apex Court in the case of
Pramati Educational & Cultural Trust Vs. Union of India (supra),
had an occasion to deal with Articles 15(5), 19(1)(g) and Article
368, Article 14 and 30(1) of the Constitution. Their Lordships
opined that power under Article 15(5) is a guided power and its use
in furtherance of its objects and purpose is subject to judicial review.
Therefore, Article 19(1)(g) is not affected. Their Lordships opined
that if there is stealthy encroachment into fundamental right by
constitutional amendment meant for beneficial purpose, duty of
Court in such cases is to protect fundamental right of private
educational institutions under Article 19(1)(g) from the insertion of
Article 15(5) if meant to appease political gains. It was further held
that duty to maintain distinction between aided and unaided
educational institution in matters of admission of Scheduled Castes
and Scheduled Tribes etc, it was held that if law is made to
effectuate Article 15(5) it must provide for compensation to the
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unaided institutions so as not to violate Article 14. It was further
held that reading of preamble and Article 30(1) vis-a-vis Articles 14
and 15(5) of the Constitution, exclusion of minority aided and
unaided educational institution referred to in Article 30(1) from the
purview of Article 15(5) held not discriminatory, and further held
that it does not destroy the secular character of India under Article
15(5). They opined that Article 15(5) promotes fraternity, unity and
integrity of the nation, ordained by the preamble.
57 After referring to the Three Bench judgment in Society
for Unaided private schools of Rajasthan, 2012(6) SCC 102,
which is already referred to above, Their Lordships opined that the
power under Article 21-A of the Constitution vesting in the State
cannot extend to making any law, which will abrogate the rights of
the minorities to establish and administer schools of their choice.
The relevant paragraphs are 48, 49, 51, 52, 53, 55 and 56. Their
Lordships in the concluding paragraphs held as under :
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48. It is submitted that the Right of Children to Free
and Compulsory Education Act, 2009 (the RTE Act, for
short) will result in the effacement of education and will
lead to the destruction or extinction of private unaided
schools.
49. The provisions of the RTE Act make grave and
unconstitutional inroads into the fundamental rights of
private unaided schools and completely destroy their
autonomy, violate the free choice and volition of parents,
and gravely erode, with the distinct possibility of
destroying altogether, the financial independence and
survival of unaided private schools.
51. In short, Section 3 of the Act delineates its
operational mandate, and encapsulates the underlying
philosophy, as well as the legislative vision, which
informs Article 21-A. Sections 6, 7, 8, 9 and 11 in
Chapter III of the Act when read as a whole, make the
legislative scheme for achieving the constitutional goal
abundantly clear that Parliament was aware, and
intended, that the entire scheme of Article 21-A must be
fulfilled by the Central Government, the appropriate
Governments, and the local authorities.
Submissions
Article 21-A in its plain terms imposes the
obligation to provide free and compulsory
elementary education upon the State
52. The words of Article 21-A are plain, without
ambiguity, and susceptible of only one meaning, namely,
that "the State shall provide". Use of the words "in such
manner as the State may, by law, determine" does not
enlarge, alter, or change in any way the clear mandate
and requirement that it is the State which shall provide
free and compulsory elementary education. The latter
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portion of Article 21-A only lays down the modality or
mechanism by which the State shall provide. But that
latter portion does not empower the State to make a law
which requires that somebody other than the State shall
provide. Indeed, to read the latter portion in such manner
would be to do grave violence to the plain language of the
constitutional provision.
53. The legislative history which led to the
Constitution (Eighty-sixth Amendment) Act, 2002 also
clearly supports the interpretation which flows from the
plain words of Article 21-A, namely, that it is the State
alone which is required to provide free and compulsory
elementary education throughout India. Article 45 was
the only directive principle which was time-bound and
required the State to endeavour to provide, within ten
years of the commencement of the Constitution, for free
and compulsory education for all children until they
complete the age of 14 years. This directive principle was
consistently construed as imposing an obligation solely
upon the State. Ultimately, in Unni Krishnan, J.P. v. State
of Kerala, (1993) 1 SCC 645, a Constitution Bench held
that this directive principle had to be read into and
treated as a part of Article 21 of the Constitution. Even
Unnikrishnan makes it clear that the obligation and duty
to provide free and compulsory elementary education was
of the State alone.
55. Section 3 of the RTE Act encapsulates the vision
and mandate of Article 21-A, and lays down the roadmap
for how "the State shall provide free and compulsory
education to all children of the age of six to fourteen
years". The right is conferred by upon every child of that
age group to have free education in a neighbourhood
school till the completion of elementary education.
Coupled with Section 10, which imposes a duty upon
every parent and guardian, Section 3 is intended to fulfil
the laudatory goal of Article 21-A.
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56. Section 6 mandates that "for carrying out the
provisions of this Act", it is the appropriate Government
and the local authority which have to establish
neighbourhood schools within a period of three years
from 1-4-2010 i.e. by 31-3-2013. Section 7 contains
elaborate provisions to ensure that finances have to be
raised by the Centre and the States for the aforesaid
purpose, and leaves the Government with no leeway or
escape routes. Section 8(a) and Section 9(a) mandate
that it is the duty of the appropriate Government and the
local authority to provide free and compulsory
elementary education to every child, and the use of the
word "shall" makes it clear that this is a mandatory duty.
If there were any doubt or ambiguity in this behalf, it is
dispelled by the Explanation to Section 8(a), which
clarifies that the term "compulsory education" means the
obligation of the appropriate Government to provide free
elementary education to every child of the age of six to
fourteen years, and to ensure compulsory admission,
attendance and completion of elementary education.
58 In the case of Pramati Educational and Cultural Trust
Vs. Union of India, (supra), the issue was with regard to
implementation of Section 12(1)(c) of Right to Education Act which
refers to an obligation to admit children belonging to weaker section
and disadvantage groups in the neighborhood who need not be the
children of the minority community which has established the
school.
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59 In clear terms, they opined that the application of 2009
Act, to minority schools (aided and unaided) would lead to
abrogation of right of the minorities under Article 30(1) of the
Constitution. Therefore, it was further held that the 2009 Act
insofar as it is made applicable to minority schools referred to clause
1 of Article 31 of the Constitution is ultra vires of the Constitution
and further opined that the law or the view held in society for
unaided private school is not the correct law.
60 On one hand, we have the rights and obligations
conferred upon the State run educational institutions, institutions
run with the financial assistance of the State and without the
financial assistance of the State. It is also well settled that even in
the case of minority institutions when it comes to imposition of
regulations by the State, such regulations have to be followed by the
institution so long as they do not invade into the constitutional
protection conferred upon the minority institutions under the
Constitution of India. In the case on hand, the child and its parents
are seeking implementation of provisions of Right to Education Act
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which provides not to expel, not to withhold a child from its school
once admitted till it completes elementary education. On the other
hand, we are dealing with the rights conferred upon the minority
institution to establish and administer the school. In the judgments
referred to above, it is clearly explained that the word 'establish'
refers to the right to bring into existence and the word 'right to
administer an institution' means the right to effectively manage and
conduct its day-to-day affairs. This definitely would mean
management of the affairs of the institution. The minorities
definitely have the privilege of Right and freedom to establish and
administer their educational institution as they choose. It is also well
settled that right to administer does not include right to
maladminister. The right to administer refers always to positive and
good administration. The regulations imposed in the true interest of
efficiency of instruction, discipline, health, sanitation, morality,
public order and the like, can always be imposed.
61 In the present situation, having regard to the fact that
the institution in question is a minority institution, whether one
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could impose the terms of Right to Education Act, compelling the
respondent institution to re-admit the minor girl Ms.Durva to the
respondent institution recognizing the right of Ms.Durva under the
Right to Education Act that she cannot be expelled or withheld in
terms of section 15 and 16 of the Act. Right to Education Act is a
statute in terms of Article 21A which again is in terms of directive
principles of State policy as an obligation of the State. Articles 29
and 30 of the Constitution protect the interest of minorities and give
them unfettered rights to establish and manage the day-to-day
affairs of the administration in their institution. Reading the
judgment of the constitutional bench in the case of Pramati
Educational and Cultural Trust Vs. Union of India (supra),
especially the paragraphs referred to above, we are of the opinion
that the rights of the parties including the child Ms.Durva must yield
to the right of the minority institution protected under the
constitution. The constitutional protection given to a minority
institution recognizing their right to establish and administer
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educational institutions stand on a higher pedestal than the rights
conferred upon Ms.Durva under Right to Education Act, a statute in
terms of Article 21-A of the Constitution. It is not a situation where
Ms.Durva is totally denied of a right under Education Act in terms of
Section 15 and 16 of the Act since State, in the present case, is
coming forward to provide Ms.Durva admission in any other
neighborhood school upon which the State can impose such
obligation.
62 Accordingly, Petition is disposed of denying the relief
sought by the petitioner seeking re-admission to the respondent
institution in question in terms of Sections 15 and 16 of the Act.
However, we direct the State Government to provide admission to
Ms. Durva to any of the neighborhood school to a class which is
appropriate to her age and further, allow her to take examination, if
any, for this academic year of 2016 and 2017.
(M.S.SONAK, J) (CHIEF JUSTICE)
