On 31 May, a division bench of the Karnataka High Court handed down its judgment in RTE Students and Parents' Association v State of Karnataka, upholding the constitutional validity of Rule 4 of the Karnataka Right of Children to Free and Compulsory Education Rules of 2012. The background is this: Section 12(1)(c) of the Right to Education Act requires private schools to admit – to the extent of 25% of the strength of their Class I batches – students belonging to "the weaker sections and disadvantaged groups in the neighbourhood." The money spent on these children would be reimbursed to the private schools by the government. Rule 12 of the Karnataka Rules – secondary legislation under the RTE Act – stated that "provided that no unaided school falling under such clause (iv) of clause (n) of Section 2 [i.e., of the RTE Act] shall be identified for the purpose of admission of disadvantaged group or weaker section, where government school and aided schools are available within the neighbourhood." The effect of this rule, therefore, was that the obligation under S. 12(1)(c) would not apply to private schools in cases where there existed government or aided schools in the neighbourhood. Or, in other words, children from disadvantaged sections would no longer be able to seek admission in private schools under the aegis of s. 12(1)(c) if there existed a government or aided school in their neighbourhood.
The constitutionality of Rule 4 – as flagged above – was challenge, and the High Court rejected the challenge. The case of the petitioners was primarily based on the contention that the vast quality gap between government and private schools essentially consigned socially and economically disadvantaged students to a second-class education, and deprived them of an equal opportunity to exercise their right to education under Article 21A of the Constitution. On the other hand, the State argued that the effect of the RTE had been a gradual closing down of state schools and a proliferation of private schools, apart from a heavy burden on the public exchequer. spent on reimbursing private schools. As far as statutory interpretation went, the State argued that under Section 6 of the Right to Education Act, the State was under an obligation establish – within three years – public schools in every neighbourhood. It was therefore argued that on a combined reading of Sections 6 and 12(1)(c), the 25% obligation on private schools was a "transitory" one, until such time that government schools were established in the neighbourhood. Consequently, Rule 4 – which effectively provided that when a government school was established, the requirements of S. 12(1)(c) no longer applied – was valid.
Accepting the argument, the High Court held that:
The learned Advocate General is right in his submission that the State Government or the local authorities are under the obligation to identify schools defined under Section 2(n)(iii) & (iv) only if there are no schools in the neighbourhood. The case of the petitioners is that notwithstanding the existence of Government or Government aided schools in the neighbourhood, unaided schools must also be identified to ensure that parent and the child get admission in schools of their choice. If petitioner's contention is to be accepted, the State Government will be compelled to reimburse astronomical figures. The argument on behalf of the petitioners that children entitled for seat under the RTE Act may choose an unaided school in the neighbourhood though there exist Government and aided schools, is fallacious. (paragraph 21)
The Court then went on to explain the need for judicial restraint in the review of administrative action (!), and noted that because the Rule was neither arbitrary nor unreasonable, it could not be struck down under judicial review.
There are, however, a number of flaws with the analysis in paragraph 21. The first and most glaring is that it appears to ignore the plain wording of the statute. Section 12(1)(c) is clear that the private school shall admit 25% of its Class I batch strength from the disadvantaged sections. The obligation upon the private schools, in other words, is mandatory. What the High Court did, however, was to convert this mandatory obligation into a conditional obligation, based upon its reading of Section 6 of the RTE. Section 6, however, is a different provision entirely: it is addressed to the role of the government in carrying out its obligations under the Act, and therefore, requires the government to establish schools within three years. Nowhere in Section 6 – or anywhere else in the Act – is it indicated that the Section 12(1)(c) obligation on private schools is subject to the obligation upon the government under Section 6 remaining unfulfilled. Something as important as that, one would think, would be spelt out in the Act itself, and not merely inferred. The bridge between Sections 6 and 12, therefore, that the Court built, seems to be made entirely out of air.
This is evident from the fact that the Court seemed to view the issue only to be involving the right of children to be admitted into private schools of their choice. Once the argument was framed this way, it was able to make the common-sensical argument that the Constitution only guaranteed the right to education, and not the right to education in a private school of one's choice. This, however, attacks a straw-man. The purpose of Section 12(1)(c) goes beyond granting a right of admission to private schools. To get a sense of the purpose, consider the Statement of Objects and Reasons appended to the RTE Bill of 2008, which is a permissible external aid to interpretation:
The proposed legislation is anchored in the belief that the values of equality, social justice and democracy and the creation of a just and humane society can be achieved only through provision of inclusive elementary education to all. Provision of free and compulsory education of satisfactory quality to children from disadvantaged and weaker sections is, therefore, not merely the responsibility of schools run or supported by the appropriate Governments, but also of schools which are not dependent on Government funds.
Not only does this make clear that Sections 6 and 12 of the RTE Act are independent provisions operating in independent spheres, but it also provides the rationale: inclusion, or integration. The rationale is further elaborated – in absolutely unambiguous terms – by the Ministry of Human Resource Development's clarificatory memorandum on the provisions of the RTE
The idea that schooling should act as a means of social cohesion and inclusion is not new; it has been oft repeated. 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. The currently used term 'inclusive' education implies, as did earlier terms like 'common' and 'neighbourhood' schools, that children from different backgrounds and with varying interests and ability will achieve their highest potential if they study in a shared classroom environment. The idea of inclusive schooling is also consistent with Constitutional values and ideals, especially with the ideals of fraternity, social justice and equality of opportunity. For children of socio economically weaker backgrounds to feel at home in private schools, it is necessary that they form a substantial proportion or critical mass in the class they join. The relevant universe in which the proportion needs to be considered is the class/section. It is for this reason that the RTE Act provides for admission of 25% children from disadvantaged groups and weaker sections in class I only. This implies that these children cannot be pooled together in a separate section or afternoon shift. Any arrangement which segregates, or treats these children in a differentiated manner vis-à-vis the fee-paying children will be counter- productive.
Think of it as the anti-segregation rationale of Brown v Board of Education, only applied to class instead of race. The purpose of Section 12 was – and is – to combat, in whatever minimal way, the two-tier system of schooling that exists in India, where class enforces what is effectively a highly segregated structure, and where the the rich and the poor are "sorted" right from the moment primary schooling begins. Now, of course, a lot of people may have objections to the wisdom or the efficacy of the provision, but that is not the question here. The question here is a question of interpretation. And from that perspective, once the inclusive or integrationist purpose is clear, it also becomes clear that Section 12 – far from being a "transitory" provision, something like a poor cousin of Section 6 – is the heart and soul of the RTE itself. And that being the case, there is little doubt that Rule 4 – which effectively negates Section 12 – is ultra viresthe RTE, apart from being unconstitutional.
How did this meaning of Section 12 – hiding away in plain sight – escape the Court? It is hard to say, but the Court's repeated reference to the financial burden on the exchequer and to how the number of state schools was declining, gives us a hint of the factors that may have influenced the decision-making process. Neither of these factors, however, is relevant. The question of reimbursement is a pure question of policy, which – on the Court's own insistence – it was in no position to get into. And whether the effect of the RTE was the decline of state schools is, as well, a deeply complex issue where questions of causation would be particularly difficult, and – again – unsuitable for judicial adjudication. And in any event, the clear meaning of Section 12 – and the constitutional goals that it is designed to fulfil – should have been enough for the Court.
The Karnataka High Court's judgment, however, now makes it very easy for state governments to accomplish an end run around the heart of the RTE, and through copycat rules, basically once again ensure the insulation of private schools from the obligations of inclusion and integration, thus restoring economic segregation in the field of education. In this light, one hopes that the judgment will be set aside on appeal to the Supreme Court.
Gautam Bhatia is a Delhi based Lawyer
The article was first published here