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 Act The 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

The 1 st Challenge: Society Society for Unaided Private Schools of Rajasthan v. Union of India & Anr [ 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 1 st 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 1 st 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 2 nd 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 2 nd 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?

Litigation 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 Standards Environment 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

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 onreligion 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 Identification 24 July June 2014 Trust/Society - duly registered. 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 Challenges Law ChallengedPrivate School claiming to be minority APF/CLPRParent Groups 24 July 2012 Order (75% student strength) Challenged as violative of their rights under Articles 29 and 30 Intervened to defend the Order 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 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 /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?