Hypothetical situation related to quota and language problems
State of Seema is the largest state in terms of both population and land in the Union of Zapra, a democratic republic. Aindi is the official language of Zapra as the majority of Zapri (as the citizens of Zapra are popularly known) speak Aindi; though in different states of Zapra, different languages are spoken and recognized as the first language of the state concerned. The majority of the population in the state of Seema speaks Ulugu, which is the mother tongue and belong to the Amish religion. In Seema, there is a linguistic minority community Zomili, originally from the state of Zomil, whose mother tongue is also known as Zomiland a religious minority community which speaks Kurdu. There are very few or no primary schools offering Zomilor Kurdu as medium of instruction at the primary level in the state of Seema and children of the two communities are forced to study in either public schools or private schools. The government run primary schools in Seema follow a one language system and children in the age group of 5-14 are taught in Ulugu. The private schools in Seema put much emphasis on learning English as well. Many other states in Zapra adopt a two language system in primary education and teach primary students two languages, one being English, which is widely recognized as language for international communications and expertise in English is considered as an asset in the global world and the second being the official language of the state. But in Seema, it is only later at the College level that the medium of instruction is bilingual and the students have the option to opt for either Ulugu or English as the medium of instruction. Mr. Ram Rahim Robert is a prominent figure in the state of Seema and a film Actor turned politician. In the year 2005, he established a school called Little Flower Convent (LFC), affiliated to CBSE, in Jumpa village near the city of Donden in the State of Seema. The purpose of establishing this school was (i) to provide an inclusive education to all sections of the society. In pursuance of the same, the school provided a 25% reservation to students from economically low income groups and disadvantaged backgrounds; and (ii) to give importance to Zomili and Kurdu languages to the students in their schooling. Students under this 25% reservation category get not only free tuition but also boarding and lodging facilities along with stationery and books free of cost. Coincidentally, 50% of the school’s management happens to be from a certain minority group and belongs to the Zomili linguistic minority in the State of Seema. The selection procedure for the 25% quota is based on the recommendation and referrals made by the local NGO’s and also referrals made by parents of children already admitted. Parents of the students approach LFC through the NGOs. LFC, upon verification of the application and pursuant to running background checks both psychological and physical on the children, admits them to their school, i.e., LFC. The Union of Zapra in order to provide importance of free and compulsory education for children between 6 and 14 has enacted Right of Children to Free and Compulsory Education Act, 2009 and came into effect from 1 April 2010. After coming in to force of the Act, the state of Seema has issued notices to the LFC and has asked LFC to strictly comply with the stipulations of the Act for starting its new academic sessions from 2013-2014 as the LFC admitted students in violation of the provisions of the Act. LFC Challenges the said notice. Note: The Constitution, other statutes and case laws are similar to the Union of India and the State of Andhra Pradesh as may be applicable.
This problem is a moot of the actual case that legal fraternity has witnessed way back in 1993. The Parliament has brought about article 21A via 86'th Constitutional Amendment Act, which makes education compulsory and free to all children between age 6-14.
Unnikrishnan v/s State of A.P. (1993 AIR 217), had similar issues. The Apex Court emphasised that, The constitution had envisaged common school system in consonance with the principles of equality and social justice enshrined as Fundamental Rights. Any programme that provided education of varying quality to different sections of society and denied education of equitable quality is unacceptable to the Constitution. But precisely that happened all the while. The schools ranged from those with no roof, no teacher in villages to the expensive boarding schools and international schools for the handful elites. The RTE legitimated this trend as neo-casteism in the sphere of education.
The Court held that the right to basic education is implied by the fundamental right to life (Article 21), when read in conjunction with the directive principle on education (Article 41). The Court held that the parameters of the right must be understood in the context of the Directive Principles of State Policy, including Article 45 which provides that the state is to endeavour to provide, within a period of ten years from the commencement of the Constitution, for free and compulsory education for all children under the age of 14.
Article 41 indicates that after the age of 14, the right to education is subject to the limits of economic capacity and development of the state.
Indeed it was found that there is no fundamental right to education for a professional degree that flows from Article 21.
Quoting Article 13 of the International Covenant on Economic, Social and Cultural Rights, the Court stated that the state's obligation to provide higher education requires it to take steps to the maximum of its available resources with a view to achieving progressively the full realization of the right of education by all appropriate means. the Court said that, in order to treat a right as fundamental right, it is not necessary that it should be expressly stated as one in Part III of the Constitution: “the provisions of Part III and Part IV are supplementary and complementary to each other”. The Court rejected that the rights reflected in the provisions of Part III are superior to the moral claims and aspirations reflected in the provisions of Part IV.This case provides a good example of how the right to life can be interpreted as including the right to livelihood, and explicitly the right to education (at least primary education). It should be noted that the Indian courts have thus far been unique in reading the right to education directly into the right to life.
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