Case: Society for Un-Aided Private Schools of Rajasthan Vs. U.O.I. &amp; Another

Cess of 1% is applicable on the subtotal of taxable income. The proceeds of the cess are directed to a separate non lapsable fund called Prarambhik Shiksha Kosh (PSK), setup by Government of India, to exclusively cater to the elementary education in India. This fund is under the control of the Ministry of Human Resource and Development (MoHRD) and is typically utilized for its flagship programmes Sarva Sikksha Abhiyaan (SSA) and the Mid-day Meal Scheme (MDMS). 142. The statistics would indicate that out of the 12,50,775 schools imparting elementary education in the country in 2007-08, 80.2% were all types of government schools, 5.8 % private aided schools and 13.1% private unaided schools. Almost 87.2% of the schools are located in the rural areas. In the rural areas the proportion of private unaided schools is only 9.3% and that of aided schools is 4.7%. However, in the urban areas, the percentage of private unaided and aided schools are as high as 38.6% and 13.4% respectively. 143. Out of the total students enrolled in primary classes in 2007-08 about 75.4, 6.7 and 17.8% are enrolled in government, aided and unaided schools. The total number of teachers working in these schools in 2007-08 was 56,34,589 of which 69.3, 10.4 and 20.7% are teaching in government, aided and private schools, the average number of teachers per school being 3.9, 8.3 and 6.7% respectively. The statistics would indicate that the Government schools have the highest percentage of teachers who are professionally trained at 43.4%, followed by aided school (27.8%) and unaided private schools (only 2.3%). However, the learning achievements are higher in private schools compared to Government schools. Going through the objects and reasons of the Act, the private unaided educational institutions are roped in not due to lack of sufficient number of schools run by the appropriate Government, local authorities or aided educational institutions, but basically on the principle of social inclusiveness so as to provide satisfactory quality education. Some of the unaided educational institutions provide superior quality education, a fact conceded and it is a constitutional obligation of the appropriate Government, local authority and aided schools not only to provide free and compulsory education, but also quality education. 144. Positive steps should be taken by the State Governments and the Central Government to supervise and monitor how the schools which are functioning and providing quality education to the children function. Responsibility is much more on the State, especially when the Statute is against holding back or detaining any child from standard I to VIII. 145. Mr. Murray N. Rothbard, an eminent educationist and Professor in Economics, in his Book Education: Free and Compulsory [1999, Ludurg von Mises Institute, Auburn, Aliana] cautioned that progressive education may destroy the independent thought in the child and a child has little chance to develop his systematic reasoning powers in the study of definite courses. The Book was written after evaluating the experiences of various countries, which have followed free and compulsory education for children for several years. Prohibition of holding back in a class may, according to the author, result that bright pupils are robbed of incentive or opportunity to study and the dull ones are encouraged to believe that success, in the form of grades, promotion etc., will come to them automatically. The author also questioned that since the State began to control education, its evident tendency has been more and more to act in such a manner so as to promote repression and hindrance of education, rather than the true development of the individual. Its tendency has been for compulsion, for enforced equality at the lowest level, for the watering down of the subject and even the abandonment of all formal teaching, for the inculcation of obedience to the State and to the group, rather than the development of self-independence, for the deprecation of intellectual subjects. 146. I am of the view that the opinions expressed by the academicians like Rothbard command respect and cannot be brushed aside as such because, much more than anything, the State has got a constitutional responsibility to see that our children are given quality education. Provisions of the statute shall not remain a dead letter, remember we are dealing with the lives of our children, a national asset, and the future of the entire country depends upon their upbringing. Our children in the future have to compete with their counter-parts elsewhere in the world at each and every level, both in curricular and extra-curricular fields. Quality education and overall development of the child is of prime importance upon which the entire future of our children and the country rests. 147. The legislation, in its present form, has got many drawbacks. During the course of discussion, the necessity of constituting a proper Regulatory Body was also raised so that it can effectively supervise and monitor the functioning of these schools and also examine whether the children are being provided with not only free and compulsory education, but quality education. The Regulatory authority can also plug the loopholes, take proper and steps for effective implementation of the Act and can also redress the grievances of the children. 148. Learned Attorney General for India has favoured the setting up of an Adjudicatory/Regulatory Authority to determine the question whether compliance with Section 12(1)(b) and Section 12(1)(c) will have an adverse impact on the financial viability of the school, and if so, to suggest remedies and to deal with issues like expulsion etc. Learned Attorney General indicated the necessity of a statutory amendment if the Regulatory/Adjudicatory body has to be set up under the Act. Proper adjudication mechanism may also pave the way for a successful and effective public-private partnership for setting up educational institutions of best quality so that our children will get quality education. I am sure that the Government will give serious attention to the above aspect of the matter which are of prime importance since we are dealing with the future of the children of this country. PART VI CONCLUSIONS

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]125. As per our understanding, neither in the judgment of Pai Foundation nor in the Constitution Bench decision in Kerala Education Bill which was approved by Pai Foundation is there anything which would allow the State to regulate or control admissions in the unaided professional educational institutions so as to compel them to give up a share of the available seats to the candidates chosen by the State, as if it was filling the seats available to be filled up at its discretion in such private institutions. This would amount to nationalization of seats which has been specifically disapproved in Pai Foundation. Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions. Such appropriation of seats can also not be held to be a regulatory measure in the interest of the minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution. Merely because the resources of the State in providing professional education are limited, private educational institutions, which intend to provide better professional education, cannot be forced by the State to make admissions available on the basis of reservation policy to less meritorious candidates. Unaided institutions, as they are not deriving any aid from State funds, can have their own admissions if fair, transparent, non-exploitative and based on merit.Pai Foundation, it was pointed out by Inamdar, merely permitted the unaided private institutions to maintain merit as the criterion of admission by voluntarily agreeing for seat sharing with the State or adopting selection based on common entrance test of the State. Further, it was also pointed that unaided educational institutions can frame their own policy to give free-ships and scholarships to the needy and poor students or adopt a policy in line with the reservation policy of the state to cater to the educational needs of weaker and poorer sections of the society not out of compulsion, but on their own volition. Inamdar reiterated that no where in Pai Foundation, either in the majority or in the minority opinion, have they found any justification for imposing seat sharing quota by the State on unaided private professional educational institutions and reservation policy of the State or State quota seats or management seats. Further, it was pointed that the fixation of percentage of quota is to be read and understood as possible consensual arrangements which can be reached between unaided private professional institutions and the State. State regulations, it was pointed out, should be minimal and only with a view to maintain fairness and transparency in admission procedure and to check exploitation of the students by charging exorbitant money or capitation fees. Inamdar, disapproved the scheme evolved in Islamic Academy to the extent it allowed States to fix quota for seat sharing between management and the States on the basis of local needs of each State, in the unaided private educational institutions of both minority and non-minority categories. Inamdar held that to admit students being one of the components of right to establish and administer an institution, the State cannot interfere therewith and upto the level of undergraduate education, the minority unaided educational institutions enjoy total freedom. Inamdar emphasised the fact that minority unaided institutions can legitimately claim unfettered fundamental right to choose the students to be allowed admissions and the procedure therefore subject to its being fair, transparent and non-exploitative and the same principle applies to non-minority unaided institutions as well. Inamdar also found foul with the judgment in Islamic with regard to the fixation of quota and for seat sharing between the management and the State on the basis of local needs of each State in unaided private educational institutions, both minority and non-minority. Inamdar noticed that Pai Foundation also found foul with the judgment in Unni Krishnan and held that admission of students in unaided minority educational institutions/schools where scope for merit based is practically nil cannot be regulated by the State or University except for providing the qualification and minimum condition of eligibility in the interest of academic standards30. Pai Foundation as well as Inamdar took the view that laws of the land including rules and regulations must apply equally to majority as well as minority institutions and minority institutions must be allowed to do what majority institutions are allowed to do. Pai Foundation examined the expression general laws of the land in juxtaposition with national interest and stated in Para 136 of the judgment that general laws of land applicable to all persons have been held to be applicable to the minority institutions also, for example, laws relating to taxation, sanitation, social welfare, economic regulations, public order and morality31. While examining the scope of Article 30, this fact was specifically referred to in Inamdar (at page 594) and took the view that, in the context of Article 30(1), no right can be absolute and no community can claim its interest above national interest. The expression national interest was used in the context of respecting laws of the land, namely, while imposing restrictions with regard to laws relating to taxation, sanitation, social welfare, economic legislation, public order and morality and not to make an inroad into the fundamental rights guaranteed under Article 19(1)(g) or Article 30(1) of the Constitution32. Comparing the judgments in Inamdar and Pai Foundation, what emerges is that so far as unaided educational institutions are concerned, whether they are established and administered by minority or non-minority communities, they have no legal obligation in the matter of seat sharing and upto the level of under-graduate education they enjoy total freedom. State also cannot compel them to give up a share of the available seats to the candidates chosen by the State. Such an appropriation of seats, it was held, cannot be held to be a regulatory measure in the interest of minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution since they have unfettered fundamental right and total freedom to run those institutions subject to the law relating to taxation, sanitation, social welfare, economic legislation, public order and morality105. I am, therefore, of the considered view that Article 21A, as such, does not cast any obligation on the private unaided educational institutions to provide free and compulsory education to children of the age 6 to 14 years. Article 21A casts constitutional obligation on the State to provide free and compulsory education to children of the age 6 to 14 years111. I am of the view, going by the ratio laid down by Pai Foundation and Inamdar, to compel the unaided non minority and minority private educational institutions, to admit 25% of the students on the fee structure determined by the State, is nothing but an invasion as well as appropriation of the rights guaranteed to them under Article 19(1)(g) and Article 30(1) of the Constitution. Legislature cannot under the guise of interest of general public arbitrarily cast burden or responsibility on private citizens running a private school, totally unaided. Section 12(1)(c) was enacted not only to offload or outsource the constitutional obligation of the State to the private unaided educational institutions, but also to burden them with duties which they do not constitutionally owe to children included in Section 2(d) or (e) of the Act or to their parents135. I am of the view that requiring the minority and non-minority institutions to follow the National Curriculum Framework or a Curriculum Framework made by the State, would not abrogate the right under Article 19(1)(g) or Article 30(1) of the Constitution. Requirement that the curriculum adopted by a minority institution should comply with certain basic norms is in consonance with the values enshrined in the Constitution and cannot be considered to be violative of the rights guaranteed to them under Article 30(1). Further, the curriculum framework contemplated by Section 29(1) does not subvert the freedom of an institution to choose the nature of education that it imparts, as well as the affiliation with the CBSE or other educational boards. Over and above, what has been prescribed by those affiliating or recognizing bodies is that these schools have also to follow the curriculum framework contemplated by Section 29(1) so as to achieve the object and purpose of the Act. I, therefore, find no infirmity in the curriculum or evaluation procedure laid down in Section 29 of the Act138. The Act has now brought in the concept of public- private partnership for achieving the goal of Universal Elementary Education. It also stresses upon the importance of preparing and strengthening the schools to address all kinds of diversities arising from inequalities of gender, caste, language, culture, religious or other disabilities. The concept of neighbourhood schools has also been incorporated for the first time through a legislation and the right of access of the children to elementary education of satisfactory and equitable quality has also been ensured. The duties and responsibilities of the appropriate government, local authorities, parents, schools and teachers in providing free and compulsory education, a system for protection of the right of children and a decentralized grievance mechanism has been provided by the Legislature. Obligation has also been cast on the State and the local authority to establish neighbourhood schools within a period of three years from the commencement of the Act and the Central Government and the State Governments have concurrent responsibilities for providing funds for carrying out all the provisions of the Act and the duties and responsibilities cast on the local authorities as well. A provision has also been made in the Act for pre-school education for children above the age of three years. The purpose is to prepare them for elementary education and to provide early childhood care and education for all children until they complete the age of six years and the appropriate government has to take necessary steps for providing free pre-school education for such children. Further, the Act also cast a duty on every parent or guardian to admit or cause to be admitted his or her child or ward, as the case may be, for an elementary education in the neighbourhood school, which is in conformity with Article 51A(k) of the Constitution139. The State has played a dominant role in providing educational services through the Government schools, largely managed by State Governments and local bodies, as well as through privately managed but publicly funded schools called government-aided schools. These aided schools are operated by charitable trusts, voluntary organizations, and religious bodies but receive substantial funding from the government. According to the Indian Human Development Survey (IHDS), 2005 about 67% of students attend government schools, about 5% attend government-aided schools, and 24% attend private schools. Convents and Madrasas account for about 1-2%. The survey conducted by IHDS indicates that in 2005 about 21% of rural and 51% of urban children were enrolled in private schools. Part of this increase in private school enrolment has come about through a decline in enrolment in government-aided schools. In 1994, nearly 22% of rural children were enrolled in government-aided schools. By 2005, this declined to a bare 7% in rural areas and 5% in urban areas. At an all India level, 72% of children are enrolled in government schools, and about 28% are in private schools. The survey further indicates that the children between 6-14 years old, about 40% participated in private sector education either through enrolment in private school (20%), through private tuition (13%), or both (7%). The growing preference for private schooling and the reliance on private tutoring, has to be seen in the context of differences in admission of children in government and private schoolsThe quality of education in government schools, due to various reasons, has gone down considerably. The Act is also envisaged on the belief that the schools run by the appropriate government, local authorities, aided and unaided, minority and non-minority, would provide satisfactory quality education to the children, especially children from disadvantaged and weaker sections140. Private aided educational institutions, though run on aid and grant provided by the State, generally the payment to such schools is not performance oriented. The State Governments provide 100% salary to the teachers on its roll on monthly basis and some State Governments would provide 90%. Generally, the State Governments do not provide capital cost either for construction or for repair and whenever these schools are aided, the school fee is regulated and is generally equal to the fee prevailing in the government schools. The recruitment of teaches by these schools is also subject to the Government regulation like inclusion of a representative of the Government in the selection committee, or the appointment being subject to the approval of the Government141. Currently, all taxes in India are subject to the education cess, which is 3% of the total tax payable. With effect from assessment year 2009-10, Secondary and Higher Secondary Education Cess of 1% is applicable on the subtotal of taxable income. The proceeds of the cess are directed to a separate non lapsable fund called Prarambhik Shiksha Kosh (PSK), setup by Government of India, to exclusively cater to the elementary education in India. This fund is under the control of the Ministry of Human Resource and Development (MoHRD) and is typically utilized for its flagship programmes Sarva Sikksha Abhiyaan (SSA) and the Mid-day Meal Scheme (MDMS)142. The statistics would indicate that out of the 12,50,775 schools imparting elementary education in the country in 2007-08, 80.2% were all types of government schools, 5.8 % private aided schools and 13.1% private unaided schools. Almost 87.2% of the schools are located in the rural areas. In the rural areas the proportion of private unaided schools is only 9.3% and that of aided schools is 4.7%. However, in the urban areas, the percentage of private unaided and aided schools are as high as 38.6% and 13.4% respectively143. Out of the total students enrolled in primary classes in 2007-08 about 75.4, 6.7 and 17.8% are enrolled in government, aided and unaided schools. The total number of teachers working in these schools in 2007-08 was 56,34,589 of which 69.3, 10.4 and 20.7% are teaching in government, aided and private schools, the average number of teachers per school being 3.9, 8.3 and 6.7% respectively. The statistics would indicate that the Government schools have the highest percentage of teachers who are professionally trained at 43.4%, followed by aided school (27.8%) and unaided private schools (only 2.3%). However, the learning achievements are higher in private schools compared to Government schools. Going through the objects and reasons of the Act, the private unaided educational institutions are roped in not due to lack of sufficient number of schools run by the appropriate Government, local authorities or aided educational institutions, but basically on the principle of social inclusiveness so as to provide satisfactory quality education. Some of the unaided educational institutions provide superior quality education, a fact conceded and it is a constitutional obligation of the appropriate Government, local authority and aided schools not only to provide free and compulsory education, but also quality education144. Positive steps should be taken by the State Governments and the Central Government to supervise and monitor how the schools which are functioning and providing quality education to the children function. Responsibility is much more on the State, especially when the Statute is against holding back or detaining any child from standard I to VIII145. Mr. Murray N. Rothbard, an eminent educationist and Professor in Economics, in his Book Education: Free and Compulsory [1999, Ludurg von Mises Institute, Auburn, Aliana] cautioned that progressive education may destroy the independent thought in the child and a child has little chance to develop his systematic reasoning powers in the study of definite courses. The Book was written after evaluating the experiences of various countries, which have followed free and compulsory education for children for several years. Prohibition of holding back in a class may, according to the author, result that bright pupils are robbed of incentive or opportunity to study and the dull ones are encouraged to believe that success, in the form of grades, promotion etc., will come to them automatically. The author also questioned that since the State began to control education, its evident tendency has been more and more to act in such a manner so as to promote repression and hindrance of education, rather than the true development of the individual. Its tendency has been for compulsion, for enforced equality at the lowest level, for the watering down of the subject and even the abandonment of all formal teaching, for the inculcation of obedience to the State and to the group, rather than the development of self-independence, for the deprecation of intellectual subjects146. I am of the view that the opinions expressed by the academicians like Rothbard command respect and cannot be brushed aside as such because, much more than anything, the State has got a constitutional responsibility to see that our children are given quality education. Provisions of the statute shall not remain a dead letter, remember we are dealing with the lives of our children, a national asset, and the future of the entire country depends upon their upbringing. Our children in the future have to compete with their counter-parts elsewhere in the world at each and every level, both in curricular and extra-curricular fields. Quality education and overall development of the child is of prime importance upon which the entire future of our children and the country rests147. The legislation, in its present form, has got many drawbacks. During the course of discussion, the necessity of constituting a proper Regulatory Body was also raised so that it can effectively supervise and monitor the functioning of these schools and also examine whether the children are being provided with not only free and compulsory education, but quality education. The Regulatory authority can also plug the loopholes, take proper and steps for effective implementation of the Act and can also redress the grievances of the children