Evolution of Constitution & Its Consequences in Education Sector

Political literacy plays a vital role in the sustenance and growth of a democracy as vibrant as the Indian democracy. Unfortunately, even after almost 70 years of the commencement of Constitution of India, the dismal state of political literacy among the people of India remains a daunting challenge before all of us. The Government of India, in this light, has decided to commemorate and celebrate November 26 as the Constitution Day, henceforth, in order to spread political literacy among the people of India. The winter session of the Parliament began with a debate on the Constitution which lasted for two days. While we appreciate this initiative of the Union Government to spread political awareness among the citizens, it is imperative upon us to submit our modest contribution and hence this write-up is devoted to the consequences of evolution of the Constitution in the field of education.


The Directive Principles of State Policy embodied in Part-IV are a unique feature of our Constitution. Besides the precedent of the Irish Constitution, the basic inspiration for the Directive Principles chapter came from the concept of a welfare state [Kesavananda Bharti v/s State of Kerala, AIR 1973 SC 146]. While seeking to protect the basic rights of the individual, the framers of the Constitution also wanted it to become an effective instrument for social revolution. The possible conflict between the rights of the individual and the needs of the community was sought to be resolved on the one hand by hedging the fundamental rights themselves by necessary restrictions in ‘public interest’ etc. and, on the other, by incorporating a chapter on the more positive ‘Directive Principles of State Policy’.


Article 45 was originally provided for free and compulsory education for all children upto the age of 14. But the Eighty-sixth Amendment (2002) made education a fundamental right for children of 6 to 14 years by inserting a new article 21A. As a corollary, article 45 was substituted by a new article providing for early child care and education to children below 6 years.


Not only has demand overwhelmed the ability of the governments to provide education, there has also been a significant change in the way that higher education is perceived. The idea of an academic degree as a “private good” that benefits the individual rather than a “public good” for society is now widely accepted. The logic of today’s economics and an ideology of privatization have contributed to the resurgence of private higher education, and the establishing of private institutions where none or very few existed before.


With regard to the establishment of educational institutions, three Articles of the Constitution come into play. Article 19(1)(g) gives the right to all the citizens to practice any profession or to carry on any occupation, trade or business; this right is subject to restrictions that may be placed under Article 19(6). Article 26 gives the right to every religious denomination to establish and maintain an institution for religious purposes, which would include an educational institution. Article 19(1)(g) and Article 26, therefore, confer rights on all citizens and religious denominations to establish and maintain educational institutions. There was no serious dispute that the majority community as well as linguistic and religious minorities would have a right under Article 19(1)(g) and 26 to establish educational institutions. In addition, Article 30(1), in no uncertain terms, gives the right to the religious and linguistic minorities to establish and administer educational institutions of their choice.


Article 19(1)(g) employs four expressions, viz., profession, occupation, trade and business. Their fields may overlap, but each of them does have a content of its own. Education is per se regarded as an activity that is charitable in nature [See The State of Bombay v. R.M.D. Chamarbaugwala,. Education has so far not been regarded as a trade or business where profit is the motive. Even if there is any doubt about whether education is a profession or not, it does appear that education will fall within the meaning of the expression “occupation”. Article 19(1)(g) uses the four expressions so as to cover all activities of a citizen in respect of which income or profit is generated, and which can consequently be regulated under Article 19(6). In Webster’s Third New International Dictionary at page 1650, “occupation” is, inter alia , defined as “an activity in which one engages” or “a craft, trade, profession or other means of earning a living”.


A provision under the title of ‘Cultural and Educational Rights’ has been made in the form of articles 29 and 30 for the protection of interests of minorities. The article 30(1) recognizes two kinds of minorities, viz. religious minorities and linguistic minorities and grants them the right to establish and administer educational institutions of their choice.


The Ninety-third Amendment (2005) exempted educational institutions established and administered by minorities from making special provisions for admission to any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes. It was, thus, left to the discretion of the management of those particular educational institutions established and run by minorities:

(a) to admit students;

(b) to set up a reasonable fee structure;

(c) to constitute a governing body;

(d) to appoint staff (teaching and non-teaching); and

(e) to take action if there is dereliction of duty on the part of any employees.


This particular amendment unsettled what the landmark judgment of T.M.A.Pai Foundation v/s State of Karnataka settled as a precedent vis-à-vis educational institutions established and administered by minorities.  As noted in the judgment of Islamic Academy of Education v/s State of Karnataka, “Although the minorities have a right to establish institutions of their own choice, they admittedly do not have any right of recognition or affiliation for the said purpose. They must fulfill the requirements of law as also other conditions which may reasonably be fixed by the appropriate Government or the university.”


On the top of it, the Parliament passed the THE RIGHT OF CHILDREN TO FREE AND COMPULSARY EDUCATION ACT, 2009 which rendered the very existence of private institutions, which offer primary education and not established or run by minorities, virtually impossible. Salient clauses of the RTE Act, viz. reservation of 25 per cent of the total seats, prohibition of holding back and expulsion, no capitation fee and screening procedure for admission, pupil-teacher ratio, etc. amount to an administrative nightmare. The factors listed here will ensure that the overall quality of education also end up deteriorated, quite ironical to the very purpose of this Act.


The judgment further went on to state that “the moment aid is received or taken by a minority educational institution it would be governed by Article 29(2) and would then not be able to refuse admission on grounds of religion, race, caste, language or any of them. In other words it cannot then give preference to students of its own community. Observance of inter se merit amongst the applicants must be ensured. In the case of aided professional institutions, it can also be stipulated that passing of common entrance test held by the State agency is necessary to seek admission.”


Now, as we all know that profiteering is not allowed at any level in education; and hence it is very unlikely that entities other than religious or social service trust/society will invest in Education sector. The factor listed above will make sure that the cost of running private schools, established and administered by non-minorities, become prohibitive enough to force the management to either slap a substantial hike in fees or shut down the school. So, exactly opposite to its very purpose, the RTE Act has ended up being detrimental to the provisions of article 21(A), and thus while we may claim that the fundamental right of the children of 6-14 years of age to avail compulsory and free primary education will be upheld, the overall quality of education will end up deteriorating to a great extent. Having received excellent schooling from a government school, I do not subscribe to the gross generalization that the government schools are unable to offer quality schooling but at the same time I cannot and will not brush aside the harsh reality- that most government run schools are in shambles and need a major shakeup even to come at par with private schools which provide decent schooling. One more point I wish to make is that while the state has, so far, failed to provide free education to all its citizens, it is highly imprudent on its part to issue the death warrant of educational institutions which are catering to the educational needs of those who can afford them by means of the RTE Act.


As we all know, it takes a very long time to undo the damage done by a bad legislation; also the current political scenario doesn’t allow us to hope that an allegedly Hindu Nationalist NDA government of Prime Minister Shri Narendra Modi will be able to clear the mess inherited to him as legacy by the Indian National Congress led UPA government in the field of education any time soon. It is, therefore imperative upon us to understand that we (i.e. the majority community) have to guard our interests by our own and no one of those who matter is going to extend a helping hand to us! All this has to be done within the realm of constitution…


As we discussed earlier, members of the both linguistic and religious minority communities exempted from both the legislations. Anybody who lives in a state whose official language is not his first language is a member of the linguistic minority community in that particular state, e.g. a person whose mother tongue is Gujarati  is living in, say, West Bengal, he’s a linguistic minority, eligible for both the exemptions, regardless of everything else, in the state of West Bengal. Similarly, a member of any of these six faiths/religions viz. Zoroastrianism, Sikhism, Christianity, Islam, Buddhism, and Jainism will be a member of the religious minority community throughout India.


In order to bring down legislation or get it amended in the desired manner its loopholes should be identified at first and then those loopholes must be exploited by an organized and systematic campaign. When a law ceases to serve the very objectives (stated or implied) which gave it birth, the government of the day has no option but to either amend or repeal that legislation. And insofar as my understanding goes, there are loopholes which can be exploited to render the both- The Ninety-third Amendment (2005) and THE RIGHT OF CHILDREN TO FREE AND COMPULSARY EDUCATION ACT, 2009 useless.


Hindus can and should use religious conversion as a weapon to protect their own interests! No, I am not talking about any Ghar Wapsi here… I am rather talking about religious conversion as a legal formality- insofar as my experience and instinct are concerned, I think religious conversion from Hinduism to say Jainism or even Sikhism or Buddhism practically changes nothing in a person’s life. For the sake of argument, even religious conversion to Islam and Christianity will practically change nothing in a person’s life if carried out as a legal formality. It is important for all of us to understand that I am not talking about mass conversion to any other religion. This is not a permanent solution to our woes yet it will, if carried out in a sophisticated and organized manner, help Hindus to buy some time to devise a comprehensive strategy to deal with this menace.


To sum up, do not wait for the Bharatiya Janata Party to put forth a spirited fight for any Hindu cause. Instead let us draw our inspiration, my Hindu brethren, to put forth a spirited fight to guard our interests, from this Shloka of Katha Upnishad:

उत्तिष्ठत जाग्रत प्राप्य वरान्निबोधत,
क्षुरासन्न धारा निशिता दुरत्यद्दुर्गम पथ: तत् कवयो वदन्ति |

Or as retold to us by Swami Vivekananda- Arise!  Awake! and stop not until the goal is reached!