Article 21A was inserted in the Indian Constitution to ensure equality of opportunity with regard to primary education. This was followed by the Right of Children to Free and Compulsory Education Act 2009 (the RTE Act), enacted by the outgoing United Progressive Alliance government in 2009. Under the act, 25% seats in private unaided schools are reserved for children belonging to economically weaker sections (EWS) and disadvantaged groups (DG). This provision was attacked as transgressing private schools’ right to occupation under the Indian Constitution but was holistically approved by the Supreme Court in Rajasthan Unaided Society v Union of India.[i]
In this article I wish to examine the implementation of the 25% reservation clause under the RTE Act in Uttar Pradesh (UP). It has been reported that the states with top 10 fill rates under 25% reservation clause (in %) included Delhi: 92.08, Madhya Pradesh: 88.24, Manipur: 64.77, Chhattisgarh: 63.1 and Sikkim: 50.26 while UP was 3.62 (Indian Institute of Management, Ahmedabad, Central Square Foundation, Accountability Initiative and Vidhi Centre for Legal Policy (2015)). The same report estimates that the 25% reservation clause in UP would cover 6,37,149 seats, out of which 5,65,406 seats are in the rural areas (National University of Educational Planning and Administration 2014).
In the last admission season (until June 2015) only 3061 admissions were approved by the Basic Education officers in the state under the 25% reservation clause. This debacle was created by three regressive government orders (GOs) notified by the state government in 2012, 2013 and 2015. There are droves of children who are perpetually spurned by the school authorities citing provisions from these regressive GOs.
Under these three GOs reasons for denying admission could be marshalled into the following four categories:
1. The neighborhood area for implementing RTE shall be a “ward” and not within 1.0 km radius from the home of a EWS child seeking admission (GO 2013).
2. The 25% reservation clause shall be applicable only in urban wards and not in rural wards (GO 2015) (GO 2015).
3. Those wards have to be identified where no government/board/aided schools exist and 25% reservation clause shall be applicable only in private unaided schools of such identified wards (GO 2015).
4. Students can be arbitrarily rejected on grounds of age.
There are a bunch of petitions which have already been filed before the Allahabad High Court and many more are anticipated in the months to come impending next academic session. It is imperative at this stage to demystify these four categories for its sheer impact on the looming fate of several children. It is pertinent to mention that vires of these GOs have already been challenged in a Public Interest Litigation (PIL), Ajay Kumar Patel v State of UP (Writ Petition No 3334 of 2016). This PIL was admitted by a division bench comprising of the Chief Justice Dr D Y Chandrachud and Justice Yashwant Verma on 27 January 2016 and its hearing is going on before the Allahabad High Court.
Rule 2 (c) of Government Order No 539/79-6-2013 published on 20 June 2013 says that “wards” (wards are the smaller units of a district where each district is subdivided into many wards based on its population and not on distance) shall be the relevant unit of defining “neighbourhoods” under the RTE Act and the UP RTE Rules, 2011 (the Rules). The “neighbourhood” as defined under Rule 4 (1) (a) read with Section 6 of the RTE Act should be within 1.0 km from the home of an EWS or disadvantaged children. These definitions are clearly contradictory.
For instance, an EWS or DG student residing in ward A could wish to avail admission in a school X which is 0.5 km from her home, that falls in ward B. Under the present regime of rules she is denied admission on the ground that her house and schools are in different wards. This is absurd and reduces the legitimacy of the state government. This has led to denial of admission to unfathomable number of students in the state. This order is against the entrenched canon of statutory construction that a direction issued under s 35 (2) of the RTE be allowed to mutilate provisions of the RTE and rules enacted by the state of UP pursuant to s 38 of the RTE. In case of inconsistency, it must be resolved harmoniously in favor of the beneficiary. This is evident from the observation made by the Delhi High Court in Federation of Public School v Director (Education) [187 (2012) DLT 184] wherein the then Chief Justice, AK Sikri on paragraph 10 observed:
We are however of the view that the paramount purpose is to provide access to education. Whether for that access, the child is to travel within 1 km or more is secondary.
The state government must dispense with its regressive attitude and devise guidelines explicating the contours of “neighbourhood” in the upcoming admission season. Perhaps, “wards” may be kept as units and preference may be given to those EWS students whose residence falls within 1.0 km from such private unaided schools.
It is proposed that in case of conflict between “ward” and “1.0 km” rule, “1.0 km” rule must trump the ward, otherwise both may operate harmoniously. District Basic Education officers (DBEOs) should calculate 1.0 km distance only if there is confusion between distance and wards. In every other case, wards may very well serve the purpose without abrogating the values espoused by the RTE Act.
GO No 33577 – 926 notified on 6 January 2015 (Rule 1) instructs the DBEO to identify only urban wards in the district headquarter for enforcement of the 25% reservation clause. This is because the government feels that identifying unaided private schools is not important outside the urban areas. It is pertinent to flag at this juncture that 5,65,406 out of 6,37,149 seats identified in the DISE report, belong to rural areas. A vast segment of EWS and disadvantaged students are kept in abeyance in rural areas from availing the right conferred upon them under the RTE Act. The stinking rule not only commits a treachery on the 2009 Act, and the state Rules, but also wrecks all corners of the equality clause under the Indian Constitution. No delegated legislation can transgress the provisions of the enabling statute and Part III rights under the Constitution. It is an equally settled principle that a subordinate legislation cannot be permitted to curb the enabling statute. This rule unsettles the policy enunciated by the RTE Act and must be set aside. The state must consciously take a note of this and make a whole hearted endeavour in securing the admissions of EWS and DG in the coming admission season starting this year.
Rule 1 and Rule 2 of the 2015 GO compels the EWS and disadvantaged students to take admissions in government/board/aided schools in their respective wards. A student may seek admission in private unaided schools only if such schools do not exist in their ward. Such perverse rules mangle the spirit of this provision read with Article 21A of the Constitution. This reading is consistent with the ruling of the Supreme Court in In Re Delhi Laws Act case (1951) as well as Dwarka Prasad v. State of U.P. (1954). To illustrate, say A, who is an EWS or disadvantaged student is keen on taking admission in a private unaided school M within her neighbourhood. Now, A will only be able to seek admission in M if there is no government/board/aided school in her neighbourhood or if all the seats in a government/board/aided schools are filled.
This creates a hierarchy and prevents an EWS or disadvantaged student from the “choice” of seeking admission in a school of her preference especially when neither the enabling statute nor the enacted rule conceives of any such situation. Few months back, a prestigious school from Lucknow refused to admit 31 EWS and disadvantaged students and filed a petition before the Lucknow Bench against the order of DBEO. Rebuking the school for such a regressive attitude, in CMS v State of UP (2015), the Lucknow Bench of the Allahabad High Court observed strongly against such a hierarchy and divesting such a choice from economically weaker section and disadvantaged students. The court observed:
Neither Section 3 nor the definition of ‘school’ contained in Section 2(n) lays down a preferential order in respect to the said schools for the purpose of admission therein. The area or limits of ‘neighborhood’ through not defined in the Act, 2009 has been specified in Rule 7 (3) read with Rule 4 (1) of the Rules 2011 framed by the State of U.P. to mean, in respect of children in Class I to V, a school ‘within a distance of 1.0 km and population of 300. Thus, as per a conjoint reading of the aforesaid provisions, a child residing within a 1.0 km of the Schools as defined in Section 2 (n), is entitled to free and compulsory education in any of the said schools, therefore, the contention of learned counsel appearing for the petitioners that, first of all the admission are to be made in a Government/Board/Aided school and only if the seats are not available therein, the 4th category of unaided school, such as the petitioner can be asked to make admissions, is not borne out from the provisions and scheme of the Act 2009. This is not the intention of the legislature. Having the option of more than one school in the neighborhood, the child or the guardian has the right to choose therefrom.
This decision goes against “hierarchy” and allows EWS and disadvantaged students the “choice” to seek admission in any private unaided school within their neighborhood.
The irony is that in PM Narendra Modi’s own constituency, Varanasi, only three wards out of roughly 50 (urban) wards have been identified where 25% reservation clause is applicable. This only adds insult to the injury and mocks the whole bureaucratic process. The DBEO awaits the verdict of the Supreme Court before which the judgment of the Lucknow Bench has been appealed and the constitutional promise of dignified life to EWS and disadvantaged students has been kept on hold.
The RTE Act obligates providing education to children in the age group of 6–14 years. There have been many instances where EWS and DG group children in the age bracket of 6–7 years were denied admission without giving any reason. A recently obtained Right to Information Act report revealed that 10 out of 21 students in Varanasi were denied admission last year despite fulfilling the age criterion.
The exercise of discretion by the executive in the present case is an assault on the norms of public reason. Public reason, in democratic institutions, is often invoked as a relevant standard to evaluate rules and govern the executive’s conduct. Public reason, whose subject is always public good, mandates the executive to exercise its discretion in a fair and reasonable way. Distinct from the idea of public reason, the ideal of public reason is satisfied when the executive acts from and follows the idea of public reason and attempts to explain to other citizens their reasons for supporting fundamental political positions in terms of the political conception of justice they regard as the most reasonable (Rawls 1997). However no definition of justice can explain why 6–14 year-old children should be kept out of schools, citing arbitrary age-related reasons.
If one digs deep, one might sense an obnoxious collusion between the unaided private schools and the state government. The state must function in a fair and transparent manner and any aberration in the implementation of the 25% clause in the RTE Act must be strongly dealt with by the courts. The fundamental liberties, especially of children seeking primary education, must be safeguarded in all possible situations and the state must protect it at all costs.