Education and the law
&
Regulation of education

 

• National Policy on Education 1986 (As modified in 1992) National Policy on Education, 1968, Government of India, 01/01/1998, R.N00.34 - part iii National System of Education – pg 5-7 (scan)

• Kothari Commission, Anmol Publications Pvt. Ltd, B.N00.B16,  Education and the Law - “Primary Education, Constitutional Amendment” Ch 45 pg 359-363, - “Constitutional Basis of Education” Ch 24 pg 205-209

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The apex court of our country has proved itself relevant and meaningful by illegalizing capitation fees and asserting the right of our citizens to educa-tion. In its judgment dated 4/2/93 in the matter of J.P. Unnikrishnan and State of Andhra Pradesh the five-member bench of the Hon'ble Supreme Court by its majority judgment categorically declared that "the citizens of this country have a fundamental right to education."
The Hon'ble Judges together with a large num-ber of advocates for both sides had been toiling for days to reach to a solution to the problem of capitation fees prevalent in many private institutions of higher education especially that of medicine and engineering.
The Hon'ble Court and in a way the whole country were facing the threat by private educational institutions that the declaration of capitation fees as illegal or the recognition of right to education as a fundamental right will kill all their educational initia-tives and they will be forced to close down all such institutions. It is a pleasant surprise in the context of recent judicial developments of our country that the apex court courageously faced the threat and has come out with the most legal as well as humanitarian solution to the problem.

- No to Capitation Fee and Yes to Right to Education, M.P. Raju, Legal News and Views, 01/03/1993, [J.ELDOC.N00.01mar93LNV.pdf]

The Supreme Court on Thursday July 30, declared that all Indians have a fundamental right to education "at all levels". This new fundamental right has been held to be part of the fun-damental right to life under Article 21 of the Constitution. Justices Kul-dip Singh and R. M. Sahai have given this new gift to citizens in Miss Mohini Jain vs State of Karnataka by stating that the right to life and the dignity of an individual "cannot be assured unless it is accompanied by the-right to education." With a single judgment the judges have converted the non-enforceable right to education in the directive principles of the Constitution into an enforceable fundamental right. Millions of Indians kept illiterate by poverty can now demand education from their respective State govern-ments, municipal corporations, pan-chayats and zilla parishads as their right by taking those managing State and local Governments to the court for securing this right

 

- The educational institutions can-not be so run as to confine the opportunity of education to the richer sections of society.
- Any State "action or inaction" which defeats this constitutional obligation to give education to all citizens at all levels is per se arbit-rary.
- Privately managed but State recognised educational institutions do not have a right to admit non-meritoriouscandidates by charging capitation fee as a consideration. The capitation fee brings to the fore "a clear class bias" since it enables the rich to take admission whereas the poor have to withdraw due to financial inability even though hav-ing greater merit. Capitation fee in any form , even disguised as higher tuition fee, can-not be sustained in the eyes of law.
- The concept of "teaching shops" or selling education is wholly con- trary to the constitutional scheme and is wholly abhorrent to the Indi-an culture and heritage.
- The "only method of admission, to the medical colleges in conso-nance with fair play and equity is by way of merit and merit alone."

- SC upholds right to education, Krishan Mahajan, Indian Express, 01/08/1992,  [C.ELDOC.N00.01aug92ie1.pdf]

 
THE Government of Kerala has finally decided to approach the Supreme Court to appeal against an order of the state's High Court which had ruled against the opening of private professional colleges. In effect, the Supreme Court will now be asked to review its decision taken two years ago when it banned the levy of capitation fees, and directed State Governments to de-cide the appropriate fees that should be charged by private educational institutions.

The first is the issue of secularism that Article 28 specifically prohibits the Government from teaching religious education through its schools or those maintained by it or allowing the compulsory teaching of religion by grant-aided schools. What the Government cannot do directly, it cannot do indirectly through its Ministry or the NCERT (the National Council of Educational Research and Training).

The second is the issue of federalism. Education is a Union and State responsibility. State schools and schools in States are to teach these new curricula, syllabi and textbooks. If the Union launches a new education policy, should the States be consulted? How? Through the NCERT  a private body with a public profile from whose meeting State representatives walked out? Or through the official medium of consultation CABE (the Central Advisory Board of Education) which has existed for this purpose since 1926 at least 1935 but not recently been re-constituted? Before the Sarkaria Commission (1988), most States wanted CABE as a permanent mechanism of consultation between the Union and the States. This federal issue is made further significant because Justice Cheema dissented in favour of the essentiality of CABE as a mechanism of federal consultation. On this, the majority judges (Justices M.B. Shah and Dharmadhikari) did not agree. Now, where has the Court gone wrong? The one obvious area where the Court has gone wrong is not just that it has placed the NCERT in the position of an official body but treated it as a substitute for CABE and federal consultation. This is wholly contrary to its own decision in the NCERT case (1991, 4 SCC 578) in which the Council successfully argued that it was a private body and not state within the meaning of Article 12 of the Constitution and in respect of fundamental rights. How, then, did the Supreme Court ignore its own the NCERT decision of 1991? It does not matter if the 1991 decision was of two judges? Surely, the NCERT knew its defence of 1991. It should have told the Court that it was a private body. Instead, it went along with the Court making the NCERT the official federal basis of all educational change.

In fact, the Court said: "There is nothing in either the Constitution of the NCERT or in any Rule, Regulation or Executive Order to suggest that the NCERT is structurally `subordinate' or inferior to any other body in the field." This is amazing. A body declared to be private in 1991 has been declared to co-equal if not superior to all in 2002 without the earlier ruling being examined. For this reason alone, this judgment of 2002 is wrong and proceeds on the wrong fundamental assumption.

A. The right guaranteed to minorities in Article 30(1) is a positive one, giving special privileges. It is given to linguistic and religious minorities only. For the protection of Article 30(1) it is not neces-sary that minority should be both religious and linguistic. The right is not also limited to the teach-ing of their religion or language alone. In D.A.V. College, Jullundur vs. State of Punjab, the Supreme Court brushed aside the sugges-tion that only those educational institutions of the minorities are entitled to protection under Article 30(1) whose purpose is only to conserve the language, script or culture of the minority com-munities. The minorities may establish institution for the purpose of giving general education.

We are perplexed, pained that the State has taken absolutely untenable stand of its financial instability and need for financial austerity. If aus-terity measures are to be taken, they are to be taken at elsewhere. It is common knowledge that large sums of money are spent in festivals, for celebrations. What do we celebrate? and what for? If we cannot provide financial assistance to 62 helpless deaf and dumb children, these are unnecessary financial extravagances. After nearly half a century of independence, it does not befit the State to take plea of unsound financial condi-tion to deny meagre amounts needed for a few deaf and dumb children.

'The State has a para-mount duty to look after the welfare of children and more so in the case of handicapped children.  Even if it is accepted that the deaf and dumb boys are not as restricted in the movement as highlighted by the State in its counter-affidavit, and its submission before Court, that is no justifi-able reason for denying recognition, to the deaf and dumb section of the school, and refusal to provide financial assistance. We direct the State to grant recognition and to provide financial as-sistance to the said section. Let necessary steps be taken by the end of March, 1994.

In a three part series on the state of primary education in the city we look at the problem that plagues parents and students from all angles, including unchecked fee hikes without correspond-ing benefits, increasing demands for money from parents under various heads, the mushrooming of sundry trusts and bod-ies dishing out dreams of quality education and the state of unrecognised schools.

For once, school managements in the city have got a firm rap on their knuckles. The directorate of education, reacting to strong protests from parents' associations, has directed 23 unaided schools to scale down their exorbitant fees and bring them down to the ceiling of fee hike imposed by the government in August. The state government had allowed schools a maximum hike of 50 per cent from their existing fee structure. However, most schools jumped the ceiling and implemented hikes to as much as 200 per cent. This was done even by highly reputed schools in the city like Utpal Sangvi and Hindi Vidya Bhavan, Marine Drive.

The Karnataka Education Act which becomes effective from tomorrow has evoked mixed public reaction. While over 600 unaided schools in the State have protested against the needless interference which they apprehend in the management of their institutions, employees and teachers have urged its implementation which they feel will check their exploitation. The former has viewed it as a draconian measure which could lend itself to misuse. The latter thinks that its emergence will put an end to all malpractices. Both are mistaken. However stringent its clauses, no legislation can hurt the interests ofinstitutions which abide by them.

 

The Education Act has taken twelve long years to come into force. Introduced in 1983, the Karnataka Comprehensive Education Bill sought to regulate all educational institutions by arming the State Government with the necessary statutory powers to take action against their aberrations, if any. It did not exempt any school, tutorial or college from its purview despite repeated pleas from the Centre to keep minority edu-cational institutions out of its ambit. The State Government retained its stand that an omnibus clause included in the pro-posed legislation protected their constitutional privileges. The Bill thus received Presidential assent in 1993 in its totality, with a recommendation from the Centre to exempt only insti-tutions affiliated to central boards or councils .... 

THE Karnataka Education Act 1983, which received President's assent in 1993, to become effective in 1995, has evoked mixed reactions. The pub-lic which has personal experi-ences of donations and other har-assment by private managements
has welcomed the Act. Private managements, including minority institutions, have become appre-hensive about its repercussions. A good section of the public who have been beneficiaries of quality education in private institutions are equally perturbed. The Act is meant "to provide the planned development of educa-tional institutions, inculcation of healthy educational practices, maintenance and improvement in the standards of education, better organisation, discipline and con-trol over educational institutions in the State with a view to foster-ing the harmonious development of the mental and physical facult-ies of students to cultivate a scien-tific and secular outlook through education".

The Education Act confers very wide powers to the State to take over managements in "public in-terest". It's powers to requisition the institution and acquire the school property are too arbitrary. The Act seems to have ignored the sacrifices made by the private managements, with their years of struggle to build up their institu-tions.

No management will incur capital expenditure to build edu-cational assets hereafter. By exempting religious institutions from being taken over, the other institutions are discriminated it is not but is hot extended to all categories of schools? This strengthens the suspicion that the Act is only to enable nationalisation of educational institutions in Karnataka.

A comparitive study of the Acts of other States reveals that only their State-funded institutions are governed by them and the
unaided institutions are outside their ambit. They have sufficient freedom to manage their own af-fairs.

Kerala seems to be sliding into a terra firma for a booming educational trade. Recent steps initiated by the State government and the manner in which various educational reform measures have been introduced give definite indication of what is in store for the whole educational sector in the State. There are, however, some discernible signals which .bode ill for the very philosophy of education and the whole architecture of educational planning in the State. It was only recently that the State government stirred up a hornet's nest by introducing the Kerala Universities' Bill in the Legislative Assembly. The Bill was intended to consolidate the existing Acts of universities in the State on the lines prescribed by the UGC. There was considerable opposition to the Bill due to the provisions envisaged in it seeking to ensure government control over the affairs of the universities. However, given the popular reactions, the government kept it in abeyance and the Select Committee of the Assembly is still negotiating a final 'settlement'. Interestingly, even the UGC seems to have some reservations about certain provisions in the Bill.

THE DELHI Government has decided to replace Delhi educa-tion Act, 1973 with a new Education Act, 2000. Addressing a Press confer-ence, to announce a series of measures for improving the quality of school education in the Capital...Education Minister Narendra Nath on Saturday said a new ed-ucation bill would be introduced in the budget session ofthe Delhi Assembly in February next year.

The Ministry of Human Resource Development has launched a massive exercise to assess and grade the quality and performance of universities, colleges, technical institutes and correspondence courses, both private and government-run, throughout the country.

Once cleared by the State cabinet, the organisation will set in motion a system of monitoring to ensure that every school, government or private, maintains minimum expected standards and also effectively implements improvement plans.