The Kerala High Court on Friday held that schools which are required to have recognition under the RTE Act are not entitled to impart religious instruction or religious study of one religion exclusively in preference to other religions.
Justice Muhammed Mustaq was examining the question "do private unaided schools which require State recognition have the right to promote a particular religion to the exclusion of other religions while imparting elementary education?"
The writ petition was filed by a private unaided school run by Hidaya Educational and Charitable Trust, Manacaud, imparting elementary education, challenging the State's action of closing down the school on the premise that it promotes exclusive religious instruction and admits only students from one particular community thereby posing threat to the secular fabric of society
Breaking: No school which is required to have recognition under the RTE Act is entitled to impart religious instruction or religious study of one religion exclusively in preference to other religion: Kerala HC— Live Law (@LiveLawIndia) January 24, 2020
The school was alleged to be functioning without Government recognition or CBSE affiliation and have admitted more than 200 students, all of them adherents to Islam. The State Government acting on intelligence report issued order of closure. The State Government noted that admission was being given exclusively to children belonging to one particular community. Acting upon the Government direction, the Deputy Director of Education, Trivandrum, issued the impugned order
The court remarked,
" Under Article 28(1) of the Constitution, there is a complete embargo on educational institutions wholly made out of State funds, imparting religious instruction. However, our Constitution allows educational institutions having State recognition or funds from the State to give religious instruction with the consent of guardian [Article 28(3)]. "
While pointing out the substantial difference between religious instruction and religious study, the court opined that there is no ban on educational institutions imparting religious study in the Constitution but the ban is on educational institutions imparting exclusive religious instructions. This was observed on the basis of the case Ms. Aruna Roy & Ors. v. Union of India & Ors. The apex court in this case cautioned against religious education based on religious exclusivism.
"Secularism is part of the wheel that has to drive political democracy in India. It is one of the pillars on which the edifice of India was built under the constitution. Secularism as a value is interconnected with many other values that constitute the morality of the Constitution in a liberal democracy", said the court.
"Exclusivism or preference of one religion over others by State or public functionaries or private bodies, while discharging public functions, strikes at the very root of the fundamental values of our Constitution, namely, secularism. It negates neutrality, promotes discrimination and denies equal treatment. Private schools which are required to have recognition from State must not promote one religion over others. The exclusive promotion of a particular religion by private educational institutions defies the secular character of the Constitution and denies constitutional value and morality. An individual or a group or a denomination have the freedom to express and to promote and practice their religion. That freedom is not available to a private body while discharging a public function. In a pluralist society like India, which accepts secularism as the basic norm in governing secular activities including education, there cannot be any difficulty in imparting religious instruction or study based on religious pluralism. What is prohibited is exclusivism"
The court observed that the religious instruction/study is capable of moulding value based education. The same shall be settled through a multi cultural method by allowing parents to choose what is best suited to their children.
The court opined that no elementary schools imparting secular education can promote one religion over others.
The Court also held that the private school which requires recognition is entitled to impart religious instruction or study based on religious pluralism after obtaining permission from the State Government.
While disposing the writ petition, the court said,
" ...this Court is of the view that an opportunity should be given to the petitioner to desist from imparting religious instructions or study without permission from the Government. In light of the fact that this issue is of great significance, the Secretary of General Education Department is directed to issue a general government order directing all recognised private schools in the State to desist from imparting religious instruction or religious study without permission from the Government."
If Government finds that in spite of the direction, schools violates such an order, the Government can initiate action for closure and derecognition of such schools.
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