By Neelabh Bist
A recent decision[1] of the Karnataka High Court, against which a petition has been filed in the Supreme Court of India, highlights an ill-conceived vision of substantive equality. The decision upheld the constitutionality of Rule 4 of the Karnataka Right of Children to Free and Compulsory Education Rules, 2012,[2] which provides that a student from a disadvantaged group or weaker section does not have the right to admission in a private school under the Right of Children to Free and Compulsory Education Act, 2009[3] or the Right to Education Act, if a government or aided school is available within the neighborhood.
The provision that forms the genesis of the contention, whether to allot seats to underprivileged children in private schools, is Section 12(1)(c) of the Right to Education (RTE) Act, which mandates non-minority private unaided schools to reserve at least 25% seats in class I for children belonging to the weaker sections and disadvantaged groups in the neighborhood. This is in light of the RTE Act which envisages not only ‘compulsory’ but also ‘free’ education to every child, meaning that the Act stands for the removal of any financial barrier by the State that might come in the way of a child’s education. To the solace of the private institutions, the government is bound to reimburse the money for the 25% seat occupants.
The present petition filed in the Supreme Court develops on the argument of the goal of substantive equality to be achieved by the State. Substantive equality has been best articulated by the Supreme Court in the Sabarimala judgment[4]. The Court had stated that “substantive notions of equality require the recognition of and remedies for historical discrimination which has pervaded certain identities. Such a notion focuses on not only distributive questions but on the structures of oppression and domination which exclude these identities from participation in an equal life.”[5] The State has been entrusted with the responsibility of achieving substantive equality by the framers of the Constitution by the introduction of Article 14, 15 and 16 of the Constitution. Knit neatly together, they mandate the State to ensure that the inherent inequality in the society is reduced by providing a level playing field to the weak and oppressed members of the society.
The Karnataka High Court in the impugned judgment had accepted the argument that the presence of the 25% quota had led to the replacement of state schools with private ones and had also placed a huge financial burden on the public exchequer for reimbursement purposes. Further, it was held that Section 6 read with Section 12(1)(c) of the Act had put a positive obligation on the State to establish public schools in neighborhoods within a time frame of three years. This means that the 25% quota was only a temporary and transitionary measure, to cater to the educational requirement of the unprivileged children till the time public schools were established.
This judgment has been challenged in the petition before the Supreme Court by raising some fundamental flaws in the reasoning of the High Court. The first argument is on the wrong interpretation of the language of the law. The RTE Act provides in categorical terms under Section 12(1)(c) that private unaided schools have to admit underprivileged children to their school by the usage of the word ‘shall’ in the text. This makes it an absolute obligation on the private unaided schools to admit 25% of students from underprivileged classes without any exception. Further, the petition challenges the wrongful reading of the relationship existing between Sections 6 and 12(1)(c) which nowhere renders the usage of the 25% quota as a transitionary provision. This can be deduced from a bare reading of the Statement of Objects and Reasons of the Act. It provided that the RTE Act was enacted for a just and humane society, which could be achieved from the idea of inclusive education for all. Therefore, the fulfillment of this obligation was a responsibility on not only the schools run by the government but even the ones not dependent on government funds.
The petition has further raised the issue of socio-economic justice by integration of a classroom on an economic basis. It has argued that the reverse of the same would lead to a situation of segregation based on class which would further widen the disparity between the classes. A parallel example for the same has been raised in the case of Brown v Board of Education,[6] where a similar separation was in place, though on the basis of the race of the student. The US Supreme Court in Brown had held that racial separation of the students, despite meeting the requirement of formal equality, was unconstitutional as separate educational facilities were inherently unequal. By extending this rationale to the present petition, sorting of children right from the primary school level into an inordinately segregated structure of private and public school enforces class divide, as it is a well-known truth that private schools students in India perform exceedingly better than public school students due to the poor quality teaching provided in the latter.[7]
The vision of the Constitutional framers and therefore the Constitution has always been to bridge the social gaps and achieve substantive equality.[8] This essentially means that everyone gets an equal opportunity to pursue the path that they want and the State is given the responsibility to ensure the same. However, institutional barriers to the fulfillment of this aim have resulted in the widening of this disparity amongst classes. In their clarificatory memorandum[9] on RTE, the Ministry of Human Resource Development has reiterated this point by stating that “inequitable and disparate schooling reinforces existing social and economic hierarchies, and promotes in the educated sections of society an indifference towards the plight of the poor.”[10] With a challenge pending in the Supreme Court on the fate of the foremost socio-economic provision of the RTE, it can only be hoped that good sense prevails and that the provision of the Karnataka RTE rules is struck down.
The author is a fifth year student at Maharashtra National Law University (MNLU), Mumbai.
[1] Education Rights Trust vs Government of Karnataka (W.P. NO.8028 OF 2019).
[2] Karnataka Right of Children to Free and Compulsory Education Rules, 2012, availbale at https://mhrd.gov.in/sites/upload_files/mhrd/files/upload_document/Karnataka_RTE_1.pdf
[3] Right of Children to Free and Compulsory Education Act, 2009 available at https://mhrd.gov.in/sites/upload_files/mhrd/files/upload_document/rte.pdf
[4] Indian Young Lawyers Association and Ors. v. State of Kerala and Ors. (2018 (13) SCALE 75).
[5] Id, ¶ 117.
[6] Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).
[7] For a better explanation of the connection between the two cases, visit https://indconlawphil.wordpress.com//?s=Brown+v+Board+of+Education+&search=Go
[8] Nicole Lillibridge, The Promise of Equality: A Comparative Analysis of the Constitutional Guarantees of Equality in India and the United States, 13 Wm. & Mary Bill Rts. J. 1301 (2005).
[9] Clarification on Provisions on The Right of Children to Free and Compulsory Education Act, 2009 available at https://mhrd.gov.in/sites/upload_files/mhrd/files/upload_document/RTE_Section_wise_rationale_rev_0.pdf
[10] Id, p. 7.
The Journal of Indian Law and Society 