22 March 2023 9:37 AM GMT
A petition challenging Madhya Pradesh High Court’s decision to allow the state government to hold board examinations for classes five and eight has been filed in the Supreme Court of India. Chief Justice DY Chandrachud, before whom the matter was mentioned on Wednesday, directed it to be posted with another pending plea on a similar issue arising out of Karnataka. The petition has...
A petition challenging Madhya Pradesh High Court’s decision to allow the state government to hold board examinations for classes five and eight has been filed in the Supreme Court of India. Chief Justice DY Chandrachud, before whom the matter was mentioned on Wednesday, directed it to be posted with another pending plea on a similar issue arising out of Karnataka.
The petition has been filed by Ashaskiya Vidyalaya Pariwar, a registered society in Madhya Pradesh, and its president, one Mohandas Nagwani through advocate-on-record Shwetank Sailakwal and advocate Areeb Uddin Ahmed. It seeks to challenge the dismissal order of a division bench of the state high court in an appeal against a single judge allowing board examinations to be conducted in classes five and eight in government as well as government-affiliated private and aided schools.
The primary contention of the petitioners is that a circular issued by the state education department (Rajya Shiksha Kendra) directing government-affiliated private and aided schools, alongside government schools, to conduct annual board examinations in classes five and eight for the academic session 2022-23 was violative of Section 30 of the Right of Children to Free and Compulsory Education (RTE) Act, 2009 and various rules made under the act. Section 30, the petitioners have emphasised, enjoined governments from requiring children “to pass any board examination till completion of elementary education”.
The petitioners have further contended that the Madhya Pradesh government was misinterpreting Rule 10-A inserted in the 2009 Act by a state amendment in 2019, which laid down that a ‘regular examination’ would be conducted in classes five and eight at the end of every academic year. As per Rule 10, the students will be declared passed if they obtain the marks decided by the Rajya Shiksha Kendra. The students who fail will be given an opportunity of re-examination and if they fail again, they will be detained in Class 5 or Class 8 ,as the case may be.
On the strength of this amendment, the education department in September last year, mandated government, and government-affiliated private and aided schools to conduct annual examinations in a ‘board pattern’ for the academic session 2022-23. The mid-term examinations would have a weightage of 20 per cent, while the annual examination, divided into two components, namely written examination (60 per cent) and project work (20 per cent) would contribute 80 per cent of the marks under the scheme of evaluation. It was further directed that the syllabus for the State Council for Educational Research and Training (SCERT), instead of the more prevalent National Council of Educational Research and Training (NCERT) prescribed syllabus would be followed. The petitioners have challenged this new rule saying that the 2019 amendments did not allow the Madhya Pradesh government to force students to take ‘board-type examinations.
Furthermore, the ‘circular’ itself has been challenged on the ground that it is actually a letter from the state education department which has been structured in the form of a circular to avoid or escape the procedure, process and methodology required to frame a rule. However, it is required to pass the test of the legislative framework as prescribed under the RTE Act, the petitioners have argued.
The petitioners have also invoked the doctrine of colourable legislation, which states that what cannot be done directly, cannot be done indirectly. “The direction by the state government does not supplement the Rules 10 and 10A of the 2009 Act but rather supplants the amended rule and has an overriding effect on the state amendment,” the petitioners have argued. Therefore, the impugned direction was not in consonance with the parent act itself, therefore, breaching a cardinal principle of law requiring delegated legislation to flow from the statute on which it is based. Besides this, the petitioners have pointed out that in the event of a conflict between a central law and a state law in a domain where both central and state governments have the power to legislate, the former would prevail and the state legislation, to the extent of repugnancy, would be rendered inoperative.
Among other things, the petitioners have also highlighted the guarantee contained in Article 21-A of free and compulsory education for all children in the age group of six to fourteen years, which eventually led to the enactment of the RTE Act, saying:
“It is important to highlight herein that the RTE Act 2009 was enacted by keeping in mind the object of Article 21-A of the Constitution of India (which is the only positive fundamental right in Part III of the Constitution). This was amended/enacted with the objective to protect the [education of] children coming within the age group of 6-14 years [and ensure that] the stage of elementary education i.e., from classes one to eight, [remained] uninterrupted.”
The top court will hear this petition along with another petition challenging the move to conduct board examinations in classes five and eight in schools affiliated with the Karnataka state board.
Ashaskiya Vidyalaya Pariwar & Anr. v. State of Madhya Pradesh & Ors. |