There is a need to have a sensible and pragmatic discussion on the models that allow private schools to remain financially viable, and fulfil the aim of quality elementary and pre-elementary education.
The recent Delhi high court orders staying the state government’s decision to scrap the management quotas in private unaided schools has reignited the debate on government regulation of pre-elementary education. In two interim decisions, the high court has ruled that the government circulars had no legal basis and violated the rights of private schools to manage their own affairs.
Beyond the legalese, the nature and scope of the constitutional questions in this case are of national importance. A potentially long-drawn litigation leading up to the Supreme Court is bound to affect the legal regulation of education across the country. Thus, a nuanced discussion of the legal aspects of the issue is critical.
The high court’s orders are based on a prima facie evaluation of the legality of the circular. But like its judgment in the precursor case of Forum for Promotion of Quality Education in 2014, the current orders do not clearly demarcate the constitutional issues and principles at stake in the debate. Thus, rather than allaying the confusion around the legal norms, they have augmented it.
There is an existing statutory policy in Delhi under the Delhi School Education Act of 1973. As the 2012 review committee constituted by the state’s directorate of education had noted, this legal regime increasingly looks dated, especially in the light of the 2009 Right to Education Act. In addition, there is an evolving and unresolved question of the extent and nature of autonomy of private unaided educational institutions. The management quota issue falls right in the middle of the ambiguities of how these three regimes of education policy can be satisfactorily brought together.
The first constitutional confusion is over the extent private unaided educational institutions can function without government interference. Decades of Supreme Court jurisprudence, led by the eleven-judge bench in the T.M.A. Pai case, has made it abundantly clear that these institutions have the right of autonomy that includes both management and admission. But this comes with two important caveats. Firstly, the institutions’ right to manage does not include a right to mismanage. Regulations in the public interest would count as reasonable restrictions on the right. When it comes to admissions, private unaided institutions are free to evolve their own criteria of admission without the interference of the state. But the criteria must be fair, transparent and non-exploitative.
Secondly, while freedom of occupation protects the right to administer educational institutions, this activity cannot be used for profiteering. Time and again, the Supreme Court has held that education is a ‘charitable’ activity. This spirit is captured by the Right to Education Act that prohibits the charging of capitation fees or the sale of seats.
Consequently, designing an admission policy falls within the purview of unaided schools. Nevertheless, the specific problem with management quotas is that schools tend to not prescribe any criteria whatsoever for these seats. The Supreme Court in the P.A. Inamdar case endorsed management quotas in higher education. Private educational institutions were allowed to charge higher fees on these seats, provided they were filled in a fair and transparent manner on inter se merit. But this minimum criterion of merit is unavailable in the cases of pre-elementary admissions that involve children younger than six years of age.
That does not mean that there can be no legitimate uses of such quotas. For example, seats can be set aside for the children of school teachers and staff. But the failure to provide even some broad criteria not only potentially hampers transparency, but also raises concerns that such quotas are nothing but a façade to carry out corrupt practices.
In its decisions, while the high court relied on the right to autonomy in admissions, it did not provide any reasons as to why ‘management quotas’ without any criteria whatsoever would be an acceptable practice under the law. Moreover, it is not clear why the government cannot legitimately expect private schools to introduce transparency on this count. Apart from emphasising the autonomy of private schools, one would have expected the high court to rule on how management quotas do or can comply with the concerns of transparency and non-exploitation of students.
Admittedly, the court did ask the Delhi government to proceed against delinquent schools if any evidence of malpractice exists. But to what extent the government can collect evidence of financial misdemeanors of this kind is unclear.
The right to education
The stakes in the matter are of course related to the education and future of children. The children’s right to fairly access quality education provides the compelling interest to the government to regulate school education within the bounds of law. What this right entails is central to the legal assessment of government intervention in private schools.
In its decisions on the management quotas, the Delhi high court has continued its position, as articulated in the 2010 case of Social Jurist, that the right to education is inapplicable to pre-elementary schools. It also sees no role of the right outside the 25% seats reserved for weaker sections and disadvantaged groups as mandated by the 2009 Right to Education Act.
This is technically true since both the fundamental right to education under Article 21-A and the 2009 Act explicitly deal with the educational rights of children between the ages of six to 14. But understanding the role of legitimate government must involve a more complex evaluation of the constitutional goals. Article 45 of the Constitution mandates the State to provide education to children below the age of six as a directive principle of state policy. And without doubt, the right to quality and non-discriminatory pre-elementary education must be read as part of the right to life of children under Article 21 of the Constitution. The government and the courts must take this into while evaluating the boundaries of the right of autonomy of private unaided schools.
There is a need to have a sensible and pragmatic discussion on the models that allow private schools to remain financially viable, along with fulfilling the aim of quality elementary and pre-elementary education. While we reach a sustainable policy position, the courts must clarify, as far as possible, what the constitutional and legal stakes are.
Mohsin Alam Bhat is a Gruber Fellow in Global Justice and a doctoral candidate at the Yale Law School.