[eebill] Convention on Education 24/09/05

organised by Sahmat & Democratic Teachers' Front

Hindu report: Yechury demands equity in education
http://www.hindu.com/2005/09/25/stories/2005092502781000.htm

Social Jurist paper:


From: "Social Jurist" <[email protected]>

Subject: Article for Circulation, Publication and Suggestions
Date: Sat, 24 Sep 2005 10:27:35 +0530

COMMERCIALISATION OF EDUCATION AND ROLE OF STATE: RECENT TRENDS IN JUDICIAL DECISIONS AND LEGISLATIONS

Ashok Agarwal, Advocate



I. SUPREME COURT JUDGMENTS IN TMA PAI FOUNDATION, ISLAMIC ACADEMY FOUNDATION AND P.A.INAMDAR CASES



The dictum of total autonomy to the private educational institutions as given by the 11-judge bench of the Supreme Court in T.M.A.Pai Foundation case (2002) 8 SCC 481 and taken forward by 7-judge bench of the same Court in P.A.Inamdar's case JT 2005 (7) 313 is nothing short of granting licence to perpetuate the existing inequity in education. These judgments are not influenced by the social-justice-philosophy of the Constitution of India but are primarily influenced by the philosophy of Liberalization, Privatisation and Globalization.



The above noted two judgments, in nutshell, lay down that (i) the State cannot insist on private unaided educational institutions to implement State's policy on reservation for granting admission to socially disadvantaged groups, (ii) a reservation up to 15% can be made available to less meritorious NRIs depending on the discretion of the management, (iii) the unaided educational institutions can claim unfettered fundamental right to choose the students to be allowed admissions and the procedure thereof and (iv) every unaided educational institution is free to devise its own fee structure.



It is relevant to submit that in 2003, the TMA Pai Foundation case judgment came for clarification for the first time before a 5-judge bench of the Supreme Court in Islamic Academy Foundation case (2003) 6 SCC 697. The majority opinion in Islamic Academy Foundation case had, by explaining Pai Foundation case judgment amongst others, held that the State can provide for reservation in favour of financially or socially backward sections of the society. However, the 7-judge bench in P.A. Inamdar case took a different view and held that the State cannot at all provide for reservation. This in our view is tantamount to overruling the Constitution itself and abrogating the fundamental rights of the underprivileged sections.



II. UNAIDED PRIVATE SCHOOLS AND RIGHT TO EDUCATION BILL, 2005



The guiding principle of the draft Right to Education Bill,2005 as prepared by the Kapil Sibal Committee appears to be to grant complete immunity to the unaided private schools from all existing regulatory measures.



It is submitted that the very premise of granting complete immunity to unaided private schools would not only be against the provisions of the Constitution of India but would also be against the Supreme Court judgment in Modern School case (2004) 5 SCC 583. In 1997, the Government through 83rd Constitution Amendment Bill attempted to grant complete immunity to the unaided private schools from the control of the government but the government did not succeed because of strong public opinion against the proposed amendment. The same attempt has again been made through this Bill. The government is doing indirectly, what they could not do directly. Obviously, it is all under the pressure of the mighty lobby of the unaided private schools.



It would be beneficial to quote from 165th Report of the Law Commission of India on "Free and Compulsory Education for Children". Commenting on the proposed constitutional amendment, the Law Commission said, "So far as clause (3) is concerned, the Law Commission suggests that it should be totally re-cast in the light of the basic premise of the decision in Unnikrishnan, which has been referred to hereinabove. It would neither be advisable nor desirable that the unaided educational institutions are kept outside the proposed article altogether. While the primary obligation to provide education is upon the State, the private educational institutions, whether aided or unaided, supplement this effort."



The Constitution of India under Article 21-A mandates the State to provide free and compulsory education to every child in age group 6-14 years. In other words, every child up to the age of 14 years has a fundamental right under the Constitution to receive free and compulsory education. To provide elementary education, is primarily the responsibility of the State. However, the private schools are also constitutionally obliged to provide free and compulsory elementary education to the children.



RECENT TRENDS TRAMPLE UPON THE 'CONSCIENCE' OF OUR CONSTITUTION



The recent trends in judicial decisions and legislations run counter to the earlier consensus as reflected in the fundamental rights and the directive principles as enshrined in the Constitution of India and as followed by the Supreme Court in a catena of decisions. Quoting from Keshwananda Bharti case 1973 IV SCC 225, decided by a 12-judge bench of the Supreme Court, wherein the learned judges observed:-



"The Fundamental Rights and the Directive Principles constitute the 'conscience' of our Constitution. The purpose of the Fundamental Rights is to create an egalitarian society, to free all citizens from coercion or restriction by society and to make liberty available for all. The purpose of the Directive Principles is to fix certain social and economic goals for immediate attainment by bringing about a non-violent social revolution. Through such a social revolution, the Constitution seeks to fulfil the basic needs of the common man and to change the structure of our society."



It is our humble submission that education is such a basic need, which is required to be available for all, and this cannot be done without liberating the education system and structure from the stranglehold of the private commercial barons who today run the private unaided educational institutions.

_____________

(Paper presented at the "Convention on Education", September 24, 2005 at New Delhi, organized by SAHMAT & Democratic Teachers' Front)




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