Education Litigation in India

Aparna Ravi & Varsha Iyengar

May 26, 2015

Overview• The Legal Framework

• Litigation around the RTE Act

- Constitutional Challenges

- Implementing the RTE Act

- Competing Rights Claims: The Issue of Minority Schools and the Medium of Instruction

Legal Framework: Constitution

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.

Legal Framework: RTE ActThe Right of Children to Free and Compulsory Education Act, 2009

• Free and compulsory education to all children of the age of 6 to 14 years in a neighbourhood school (Sec. 3)

• Covers all schools (government owned, government aided, private) (Sec 2(n))

• Prohibits capitation fee and screening procedure (Sec 13), corporal punishment (Sec 17), holding back and expulsion (Sec 16)

• School Management Committee to monitor running of school (Sec 21)

RTE Act: Norms and Standards• Pupil teacher ratio• Building infrastructure, including

▫ One classroom for every teacher▫ Barrier free access▫ Separate toilets for boys and girls▫ Safe and adequate drinking water▫ Kitchen for midday meals▫ Playground▫ Boundary wall or fencing

• Minimum working days/hours• Library, learning equipment, sports equipmen

RTE Act: Private Schools

•Section 12(1)(c): Requires private schools to admit at least 25% of class strength from disadvantaged groups for a fixed compensation by the state

Other - 75%Disadvantaged and weaker sections - 25%

The 1st Challenge: Society Society for Unaided Private Schools of Rajasthan v. Union of India & Anr [2012 6 SCC 102]

• Filed by private aided and unaided, minority and non-minority schools

• Challenge under: Article 19(1)(g) (right to carry on occupation, trade or business) and Articles 29 (protection of interests of minorities and 30 (right of minorities to establish and administer educational institutions)

The 1st Challenge: Society • Supreme Court upheld constitutionality of the RTE Act…

▫ Rejected right to occupation based challenge: “The activity pursuant to the right to establish and administer educational institutions under 19(1)(g) supplements the primary obligation of the state to provide for free and compulsory education to children between the age of 6 to 14 years. Thus the State can regulate by law the activities of the private institutions by imposing reasonable restrictions under Art 19(6)”

▫ “The provisions of the RTE Act… also envisage imparting of quality education by providing required infrastructure and compliance with the specified norms and standards… the state governments must take the opportunity to reorganize their financial outflow at the micro level by weeding out the non-performing or under-performing or non-compliant schools receiving grant in aid to achieve the object… of not only providing free and compulsory education … but also to provide quality education.”

The 1st Challenge: Society

•BUT with one exception – private unaided minority schools

▫Special constitutional status for minorities under Articles 29 and 30

▫Section 12(1)(c) violated minority character of those institutions

The 2nd Challenge: Pramati

Pramati Educational and Cultural Trust, v. Union of India & Ors, [(2014) 8 SCC 1]

▫Filed by aided minority schools and unaided non-minority schools

▫Challenge based on violation of equality resulting in damage and destruction of basic structure of constitution

The 2nd Challenge: Pramati•Court again upheld constitutionality of RTE

Act and Article 21A•BUT carved out another exception to the RTE

– aided minority schools▫Resulted in all minority schools being exempted

from the Act▫ “members of communities other than the

minority community which has established the school cannot be forced upon a minority institution because that may destroy the minority character of the school.”

Aftermath of Society and Pramati

RTE Act hijacked by private schools, the 25% issue and the definition of minority schools

What about norms and standards for minority schools?

 Litigatio

n to Implement the RTE Act

Section 12(1)(c) (Parent groups)

Challenges by

Private Schools

Out of School

Children (Court, NGOs)

Norms and

Standards(NGOs)

Norms and StandardsEnvironment and Consumer Protection Foundation v. Delhi Administration and Others, WP (C) 631/2004 (Oct 12, 2012)

• PIL to improve conditions in government and aided schools to give effect to Article 21A

• Supreme Court sought affidavits from states on compliance with norms and standards in the RTE Act

• Disposed petition with directions to states to implement all requirements under RTE Act within 6 months stating that these standards were to apply to all schools “whether State owned or privately owned, aided or unaided, minority or non- minority.” 

Norms and Standards

“We clearly indicated that it is imperative that all the schools must provide toilet facilities; empirical researches have indicated that wherever toilet facilities are not provided in the schools, parents do not send their children (particularly girls) to schools. It clearly violates the right to free and compulsory education of children guaranteed under Article 21-A of the Constitution.” [Environment and Consumer Protection]

Norms and Standards

National Coalition for Education v. Union of India, WP 267/2014 (pending before the Supreme Court)

• Seeks to make all schools RTE compliant within one year

• Specific directions sought on infrastructure, changes to Child Labour (Prohibition) Act, teacher training and reporting by private schools on students admitted under the 25% quota

Out of School Children

Out of School Children•Suo moto by Karnataka High Court. CLPR

intervened on behalf of Azim Premji Foundation•Litigation pending, but several interim orders

passed including:▫Setting up of High Powered Committee to

suggest plan of action for mainstreaming out of school children

▫Ordered door-to-door survey to determine number and identify out of school children

▫Karnataka State RTE Rules amended to establish attendance authorities

Minority Institutions and the Indian Constitution

• Article 29. Protection of Minorities:- (1): Any section of the citizens… having a distinct language, script or culture of its own shall have the right to conserve the same.

• Article 30. Right of Minorities to establish and administer educational institutions:- (1): All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

• Article 15(5). Excludes Minority Educational Institutions from State mandated reservations.

Minority Schools: Background

•Types of Minority Schools: Aided/Unaided; Linguistic/ Religious

• Conditions for Identification24 July 2012 18 June 2014

Trust/Society - duly registered.

Trust/Society - duly registered.

2/3rds of the Working Committee (Management) from the Minority Community

2/3rds of the Working Committee (Management) from the Minority Community

75% of total student strength from the minority community

25% of total student strength from the minority community

The ChallengesLaw Challenged

Private School claiming to be minority

APF/CLPR Parent Groups

24 July 2012 Order (75% student strength)

Challenged as violative of their rights under Articles 29 and 30

Intervened to defend the Order

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18 June 2014 Order (25% student strength)

Challenged as violative of their rights under Articles 29 and 30

Challenged as violative of Supreme Court precedent on MEI.

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Non- Compliance of 25% admission by schools claiming to be minority

Self Identified themselves as Minority Schools

----- Challenged as a violation of RTE

Issues Arising Out of the Litigation•What is a minority educational

institution? Does determination allow regulation of management composition and student strength?

•Who is to identify a minority educational institution? – National Commission for Minorities Educational Institution/State Government/ self identification?

Supreme Court on Minority Educational Institution •State is the Unit for identifying a

Minority Community (TMA Pai 2002)

•Institution to be “established and administered” by the Minority community

Minority will have the right to administer educational institutions of their choice

provided they have established them, but not otherwise. (Azeez Basha 1968)

Supreme Court on Minority Educational Institution • “Sprinkling of Outsiders”The real import of Articles 29(2) and 30(1) is that they clearly contemplate minority institutions with the sprinkling of the outsiders admitted into it. (In re Kerala Education Bill 1957, 1958)

• “Real Positive Index”

The object of Art. 30(1) is not to allow bogies to be raised by pretenders but to give the minorities 'a sense of security and a feeling of confidence’… What is important and what is imperative is that there must exist some real positive index to enable the institution to be identified as an educational institution of the minorities. ( APMCE 1986)

A. Karthik Rao & Ors v. State of Karnataka & Ors (WP. 29061/2014)

• Petition filed by parents challenging Schools’ claim of Minority status.

• Petition allowed holding:▫“Self Serving assertion” of Minority status is not

permitted. No denial of admissions without declaration of minority status by a competent authority

▫More non-minority students than minority.▫Declaration applies to school/college. Not the Trust or

Society.▫Denying admission - violation of children’s

fundamental right under Article 21A and also their human right.

Medium of Instruction• State of Karnataka & Anr v. Associated Management

of (Government Recognised – Unaided – English Medium) Primary & Secondary Schools & Ors. ((2014) 9 SCC 485)

• Who has the right to decide medium of instruction? State Government, parents or private school? ▫Parent- based on the child’s right to freedom of speech

and expression (Art. 19(1)(a)); right to education (Art. 21A)

▫School- based on the freedom of trade, occupation and business. (Art. 19(1)(g))

▫State – Policy Decision

Medium of Instruction• State of Karnataka & Anr v. Associated Management

of (Government Recognised – Unaided – English Medium) Primary & Secondary Schools & Ors. ((2014) 9 SCC 485)

• Who has the right to decide medium of instruction? State Government, parents or private school? ▫Parent - based on the child’s right to freedom of speech

and expression (Art. 19(1)(a)); right to education (Art. 21A)

▫School- based on the freedom of trade, occupation and business. (Art. 19(1)(g))

▫State– Policy Decision

Way Forward?