The recent judgment of the Delhi High Court upholding the right of unaided schools to apply screening procedure for nursery admissions to unreserved category of students has brought cheer to many schools, and disappointment to social activists. The schools and many parents are relieved that the cloud of uncertainty around the admission process has withered away at least for this academic year. However, the battle is far from over. The judgment is likely to be appealed in Supreme Court. That may be a positive development as it may settle similar issues that are arising in various states on the applicability of the Right to Education Act.
Since an appeal looks likely, it is important to examine the judgment for its robustness. On pure judicial reasoning, the judgment appears fragile. A few examples will suffice.
Based on a certain construction of Section 35 of the RTE Act, the court comes to a conclusion that guidelines and directions issued under the RTE Act do not apply to unaided schools. However, without any further justification, the same guidelines become applicable to unaided schools in respect of admission of reserved category students.
The Court validly invokes the provisions of Articles 41 (dealing with right to work, to education and to public assistance in certain cases) and 45 (dealing with early childhood care and education to children below six years of age) of the Constitution containing the Directive Principles of State Policy in justifying certain provisions of the RTE Act. However, same constitutional demands are not invoked when the court interpreted Section 13 of the RTE Act. It will be interesting to see if the Supreme Court will also adopt a similar approach, considering its preference otherwise in the celebrated judgments of Mohini Jain, Unni Krishnan and even last year's Society for Unaided Private Schools of Rajasthan v. Union of India, which had upheld the constitutional validity of the RTE Act.
It is important to keep in mind that the right to free and compulsory education up to the age of 14 years has been read as part of the right to life under Article 21 by the Supreme Court in Mohini Jain and Unni Krishnan. Article 41 continues to remain in the Constitution in the same way in which it existed before the right to education was introduced as Article 21A.
By interpreting the words “child” and “school” under the RTE Act the way it did, the court virtually made the prohibitions on capitation fee, screening procedure, corporal punishment and similar other provisions not applicable to students below six years of age and children not belonging to economically weaker sections. The conclusion was based on interpretation of the word “child” and “school” in section 2 (which opens with the phrase In this Act, unless the contest otherwise requires’). The context qualifier in Section 2 is intended to prevent absurd results from applicability of literal definition, and this was a fit case for a contextual interpretation. The result — that a four-year-old child can be beaten in a school (through corporal punishment), while a six-year-old cannot be — was surely not the intent of the law. In fact, a four-year-old may need greater protection than a six-year-old. The same applies for capitation fee and screening procedure as well. One wonders if such differentiation would also pass the scrutiny of the equality paradigm under Article 14, if argued. A more nuanced interpretation of the word “school”, by applying principles of statutory interpretation, may also result in a conclusion different from the one arrived at by the High Court.
In fact, the predominant basis for the judgment, that the RTE Act is merely aimed at providing free and compulsory elementary education to the poor, itself is questionable. There are various provisions in the RTE Act which have nothing to do with provision of free and compulsory education, a fact which appears to have been ignored. This confusion was bolstered by the government's deposition before the High Court.
In just a few years of working of the RTE Act, several aspects of the RTE Act have been questioned by educationists and school administrators. This is a policy issue, and it is unfortunate that the government is relying on the courts to do something when the issue really needs proper legislative changes. In fact, the RTE Act faces several administrative hurdles which find its genesis in the foolhardy assumption of their own superior wisdom by the Union government and Parliament. Historically, school education has been controlled and regulated by state governments and legislatures, which have made policies and regulations in line with local realities.
One could easily argue that the guidelines issued by the Lieutenant Governor of Delhi under the Delhi School Education Act were more easily implementable and in tune with local realities of Delhi. But no; Parliament is sovereign and the Union HRD Ministry knows best. With the RTE Act in place, many battles are yet to be fought by schools, including the sword of closure as the deadline for compliance with recognition under the RTE Act approaches. Unfortunately, in the absence of political guts, the battle will again be fought in the courts. The Delhi High Court's judgment may have unintentionally provided further ammunition to warriors in this arena.
The writers are Delhi-based lawyers