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SC declines to interfere with Right to Education law

Courts and PILs

Business Standard

06-01-2014

The Supreme Court Monday declined to interfere with the Right to Education Act which provides for free and compulsory elementary education without holding back the promotion of a child to next class till class 8.

Rejecting a plea by petitioner Abhishek Gupta seeking the stay of section 16 of the act, a bench of Justice H.L.Dattu and Justice S.A.Bobde asked him to be constructive and positive in his approach.

“You always have a positive thinking and constructive teaching. When a teacher takes salary he will teach… Don’t be negative,” Justice Dattu said as Gupta sought to argue as to the futility of such a free and compulsory education sans learning.

The petitioner had sought the stay of the section 16 which says: “No child admitted in a school shall be held back or expelled from the school until completion of elementary education.”

Contending there were several scenarios where students were getting promoted even without learning, Gupta told the court that under the right to education scheme, “passing is compulsory and education is optional”. He argued that RTE makes the learning and teaching process doubtful.

“Repetition is the essence of education. If repetition goes, then there is no learning,” Gupta said adding that the government through RTE was promoting the students without education.

Mocking the provision, Gupta said, “If a teacher does not teach, the child is passed. (It relieves teacher from the duty of teaching). If a child does not learn, child is passed. (It relieves child from the duty of learning). If a child does not attend school, child is still passed. (It relieves child from the duty of attending the school) and this together, relieves the government from the duty of educating the children of our country.

Unable to agree with the petitioner, the court asked him: “Why you get the idea if they go to school they will not learn anything? You teach them the basics. It is not that without studying they will pass.”

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Bombay high court reserves verdict on RTE for unaided minority schools

Courts and PILs, Minority Education

Time of India

12-10-2013

PUNE: The Bombay high court on Friday reserved its judgment on the writ petitions filed by Bishop’s, St Mary’s and other city schools challenging the applicability of the provision of 25% quota for children of weaker and disadvantaged sections of the society in case of unaided minority institutions, under the Right to Education (RTE) Act.

“Arguments by all parties concluded before the court today. The bench has reserved its judgment and we expect it to come after Diwali vacation,” high court government pleader S K Shinde told TOI on Friday. The matter is being heard by the high court division bench of justices A S Oka and Revati Mohite-Dhere. The schools have cited the Supreme Court judgment of 2012 to contend that the RTE Act provisions were not applicable to unaided minority institutions.

However, the Pune zilla parishad (ZP), which had directed the schools to cancel their 2013-14 admissions for not adhering to the 25% quota provision, insisted that the schools had received aid in the form of concessions in property tax, lease of land from the government and thus cannot be viewed as unaided.

At a previous hearing, the court had observed that whether facilities like concession in property tax can be termed as ‘aid’ requires a wider debate. This is also to determine whether the petitioner schools get any aid from the state, the Centre or the local authority to fall within the ambit of the RTE Act provisions.

Shinde said, “We have argued on behalf of the state that it is for the Central government to decide and clarify as to what constitutes an aid or grant vis-a-vis applicability of the 25% quota, considering that RTE is a central enactment. The court has no jurisdiction over the matter.”

Apart from the Bishop’s and St Mary’s, Saraswati Vidyalaya (SV) Union school is the third petitioner. Minority institution head P A Inamdar also filed a separate petition.

In May, the high court had allowed the three schools of Bishop’s to fill 75% of its seats on a first-come-first-served basis while the admissions to the remaining 25% seats will be subject to the outcome of the court’s final order. A similar relief was also given to St Mary’s and the other schools.

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Cleaning up the NEET mess

Courts and PILs

July 29,2013

India Today

India’s system of higher education consists of powerful statutory regulators: AICTE, MCI, UGC, NCTE and those for architectural, pharma, veterinary, indigenous medicine and other higher educations.

At once greedy for money, status and power, these regulators fight each other for turf and importance. Corruption is rampant and resulted in to Parliament putting in a Board of Governors to replace the Medical Council. The MCI wants to be frontline and imagines new ways of asserting its authority and importance.

What has intoxicated the regulatory tendrils is the judicially recognised fact in TMA Pai (2002) that higher education has changed immeasurably into a huge public-private partnership. This has increased the regulatory empires of MCI, AICTE and the like. On the flip side it has increased their lust for power and the spoils of regulation – with private colleges (some worthy and some not) grovelling before these authorities.

Testing

In the 11 judge TMA Pai verdict (2002) the apex court saw the need for standards and education but was worried that the State would treat private colleges as providers of largesse or treat them as “government departments.” The Court therefore sought to protect the autonomy of private institutions in four significant areas (i) admissions and selection of students, (ii) financial autonomy, (iii) selection of staff and their discipline, (iv) management. Two caveats were added (a) standards were to be laid down and overseen by statutory regulators; and, (b) independent admission committees would ensure clean merit-based education without capitation fee and finance committees would ensure probity. Each committee was to be headed by retired High Court judges.

To minimise too many individual college tests, room was made for state tests and collegiate tests whereby like-minded colleges grouped together to hold independently administered tests. MCI was a party to these decisions and bound by them. But, uneasy lies the head that thinks it wears an imperial crown. AICTE started the quest for an All-India admission under its control. Some Supreme Court judges liked the idea. The MCI decided to totally take over entrance admissions and announced a NEET test for graduate and post graduate courses irrespective of state, region or institutions, contrary to the Supreme Court decisions and contrary to the MCI Act which gave them no power to do so.

In the NEET judgment of the Supreme Court (18 July 2013), the Court divided 2 judges: 1 judge against the MCI usurpation of monopoly power, which was the principal issue. The MCI Act allowed regulation and prescription of standards (even for tests) but not to take over admissions. Equally, the judgments of the Supreme Courts were crystal clear that government admission would be made by government devised tests and private college admissions (especially those of minority and unaided institutions) by collegiate tests – each with oversight committees.

The MCI had simply acted illegally and overreached itself. To change this situation, MCI needed not only to amend its MCI Act but also ensure reversal of 7 and 11 judge benches of the Supreme Court.

In Justice Dave’s spirited dissent, that the MCI had the power on the basis of an analogy that “even (in)… manufacturing, (the attempt is) to make (the)… final product excellent. Principle is no different in the field of education.” Unexceptional for manufacturing, but a bad analogy.

It was no one’s case that the best product eluded the present system. The Supreme Court in Preeti’s case (1999) decided that the relaxation of standards by states had to be reasonable and in the AIIMS case (2013) that specialties and super specialties were exempt from reservation.

Supervision over collegiate and state tests existed; and this ensured that these complied with the Supreme Court’s ‘Inamdar’ (2005) triple test of being fair, transparent and non-exploitative.

Standards

NEET was obviously MCI and the Union’s brain wave. But the NEET tests themselves had their peculiarities. The test was more a question and answer aptitude test. There were to be different answer sheets for different students. To get a fair standard, tougher answer sheets were to be equalised against not so tough ones, the equivalents to be worked out by different people differently.

Further standards could be lowered.

The cut-off was not a percentage but a percentile and could vary. If the first 50 per cent candidates got much lower than 50 per cent that would be the cut off. Again, unlike with State and collegiate tests, the best would go to some states and institutions and other states and institutions would look at the bottom of the NEET barrel for students.

Experiment

Some have argued that a one-time NEET test is good for students. This is not how most students felt. The test was like a draw of lots forfeiting options. As with selections all over the world, the system of selection is based on choice. Choice of an institution by the student if they have reached a certain level. Choice of the institution for the kind of students they want.

Christian College Vellore wants students who will work in rural areas. So, do some states. This system of choice is at the heart of a good merit-based counselling.

To assimilate all this into ‘All-India tests’ run by a power hungry MCI whose regulatory reputation is blemished seems an unworthy experiment. It is also beyond the MCI’s statutory power and an infringement of Constitutional guarantees, which form the basis of how the private-public partnership would work in medical and higher education.

Looked at every which why, the MCI’s NEET test is not so neat.

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Court stays State Institute of Educational Technology closure

Courts and PILs

Times of India

19 June 2013

BHUBANESWAR: The Orissa high court has stayed closure of State Institute of Educational Technology (SIET), an autonomous organization to promote technology in school education. The government had notified the closure on April 29.

Acting on a writ petition by 11 SIET employees, a bench of Justices M M Das and B K Mishra on May 15 issued the stay order. “If the state is proposing to close down SIET, such order of closing down shall not be implemented without leave of this court,” the order said.

The HC also told the government not to disengage the services of SIET employees and pay their salary regularly till final disposal of the petition.

Petitioners’ advocate Abhijit Pattnaik said the court direction has three parts: first, not to disengage the employees, second, pay them their salaries and third not to close down the institute, pending the case.

The institute, one of the six of its kind in the country, was established in 1986 and ran as an autonomous body under school and mass education department, receiving financial aid from the Centre. Besides creating teaching aid for adult literacy, SIET played crucial role in programmes under education satellite – the HRD ministry’s satellite-based education broadcast programme – and use of information and communication technology (ICT) in school education till the early 1990s.

In their petition, the employees highlighted that closing down SIET will be a great loss to the state. It would affect making of audio-visual programmes for schools and national education policy on ICT scheme. Besides, the huge infrastructure on which SIET functions will go waste, they said.

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Nursery schools need recognition too: HC

Courts and PILs

Digital Campus

21-Jun-2013 :

 As per law, every educational institution, including a pre-primary school, should obtain recognition. If a plea that no recognition is required for nursery schools is accepted, there would be several such schools without any kind of control, the Madras High Court has said.

Justice K.K. Sasidharan passed the order on a writ petition by Achariya Educational Public Trust challenging an order of the Director of Elementary Education of June 10 directing the trust to close its nursery schools in Coimbatore.

The Judge said nursery schools should possess all the required facilities. There had been several unfortunate incidents in the State involving students. Such incidents should not recur. The Puducherry-based trust started three play schools for kids in Coimbatore. The District Elementary Educational Officer (DEEO) called upon the petitioner to submit an application for obtaining recognition. Accordingly, the petitioner submitted one which is pending. While so, the Director of Elementary Education affixed a notice on the institutions that they were unauthorised and should be closed (for its failure to obtain recognition under RTE Act.) The petitioner said that Act would not apply to nursery schools. Justice Sasidharan said even a pre-primary institution would come under the Tamil Nadu Recognised Private Schools (Regulation) Act. When the law mandated that every educational institution, including pre-primary, should obtain recognition, there was no merit in the petitioner’s contention that the authorities had no authority to take action against nursery schools.

Granting liberty to the trust to submit an application to the DEEO for recognition, the Judge asked the authorities to dispose it of on merits and as per law within a month.

Keywords: Madras High Court, nursery schools, Achariya Educational Public Trust, Director of Elementary Education, Coimbatore nursery schools, nursery schools closure, school rules violation

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Professor arrested for blogging against Manipal university

Courts and PILs

New Education Review

21 May 2013

 

An Indian university lecturer, S Manikandan has been arrested in Dubai for blogging in India against a private university based in Dubai.

The lecturer, who taught in Dubai campus of Manipal University and finished his term at the private university a year ago, had his contract terminated without reason. Dubai courts acted in his favour and he received his end-of-service- benefits, said police.

However, after returning to India he wrote on his blog about what happened to him at the Dubai-based institution.

The police said that a university employee filed a case against the lecturer accusing him of defamation due to publishing his story on his blog.

S Manikandan, in his email sent to India Education Review said, “The Dubai Court ordered last year to return my passport immediately when Manipal Director was holding it and threatened me to cancel my sponsorship after terminating the services without giving any valid reason. I got the compensation amount through my law firm only two months before after Dubai Appeal Court order was executed.”

“I took further action against them back in India by filing Human Rights Violation case and reported it in the online media (my personal blog). A Writ petition is pending against Manipal in Karnataka High Court from July 2012. So they are now trying to threaten me again to withdraw that case as the Ministry of HRD, Government of India filed an affidavit in the court stating Manipal Dubai Campus has no approval,” he added.

The professor further added that though it is my personal case, but now turned into a public case as thousands of students life is endangered by the fake degrees offered by the University these many years here in Dubai.

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Schools pitching for review plea

Courts and PILs, Private schools, Right to Education

BANGALORE: The Karnataka Unaided Schools’ Managements Association (KUSMA), which has 1,800 members, will file a review petition in the Supreme Court over the next few weeks, challenging 25% reservation in private unaided schools under the Right to Education Act.

The main grouse is the government’s decision to transfer the responsibility of educating poor children to private schools. The other contention is that the law has exempted private unaided minority (religious and linguistic) schools from reserving 25% seats for underprivileged children.

“Giving education is the government’s constitutional obligation . For this, it needs to develop the infrastructure instead of passing the buck. With the 25% RTE quota, we’ll be penalizing 75 children to help 25. Moreover, we’re one nation and therefore there should be one law. It’s unfair for some institutions to be exempted,” said VRN Reddy, vicepresident , KUSMA. The decision was taken at the last association meeting on Saturday.

KV Dhananjay will represent KUSMA in court. “KUSMA had stayed away from the Supreme Court proceedings primarily because the RTE Act could not be meaningfully challenged in a court unless it was seen in actual operation. Now that the judgment has been delivered and the consequences are being felt, KUSMA will filing a review petition to protect the interests of its members. No reasonable person should debate on whether every child should be educated. Every child deserves to be freely and compulsorily educated. Rather, the means by which such a goal is sought to be achieved should be debated,” he said.

KUSMA’s argument would be that it’s not that the government of the day is somehow more concerned about education for the poor. Our founding fathers who gave us our Constitution did indeed debate in 1949 on making education free and compulsory. But once they realised the government itself did not have the resources to do so, they put free and compulsory education as a recommendation and not as a fundamental right. However, in 2009, the Parliament removed that recommendation and made it a fundamental right.

As such, schools cannot succeed in challenging the Act unless they contest the 2009 Amendment to the Constitution. Surprisingly , no institution that fought the RTE Act in the Supreme Court did that. The RTE Act nationalizes private education and also distorts the ‘fundamental right’ concept of our Constitution . Every other fundamental right talks of the government’s conduct like treating everybody equally, not discriminating and so on. Only this right talks of a facility, a facility to provide which the government itself does not have resources.

the Times of India, 01 May 2012

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Scripts under RTI: Apex court

Access to education, Courts and PILs

The Supreme Court has upheld a Calcutta High Court judgment permitting examinees to inspect and photocopy their answer scripts in any academic or professional exam under the Right to Information Act.

NGOs such as JOSH (Joint Operation for Self-Help) and MKSS (Mazdoor Kisan Shakti Sangathan), who fight for right to information, had sought the apex court’s intervention so that examinees could access their answer scripts.

Responding to a court notice, the CBSE, Institute of Chartered Accountants of India, public service commissions and the West Bengal secondary and higher secondary education boards had presented their views before the court.

Most of the institutions did not want answer scripts to be accessible to the examinees since they felt they were not equipped to deal with requests for access en masse.

“The order will apply to all examination-conducting agencies in the country,” said lawyer Divyajyoti Jaipuriar, who represented the NGOs.

The detailed judgment is not available yet.

On March 28, 2008, Calcutta High Court had permitted Presidency College student Pritam Rooj to inspect his answer scripts, prompting Calcutta University to move the apex court.

On August 14, 2007, Rooj had sought to obtain his answer scripts under the RTI Act but his plea was rejected. He moved the high court challenging the information officer’s decision to deny him the information.

The university had claimed that the answer script of an examinee was not information under Section 6 of the RTI Act and an examinee was expected to be aware of the paper he wrote and could not seek its inspection.

The university also claimed that showing students answer scripts was tantamount to involving them in the evaluation process.

The high court rejected these contentions. It said: “…it is not for the court to rein in desirable curiosity that the act has unleashed, but for other measures to be adopted to pave the way for its operations.”

The court also said: “An examining authority may not tell a student that he must learn to answer questions in the format the examining authority desires, yet leave the examinee uninformed of the manner of evaluation.”

The Telegraph, August 10, 2011

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High Court panel to audit private schools’ accounts

Courts and PILs

Holding that the fee hike resorted to by the Capital’s private recognised schools in 2009 was an interim measure, the Delhi High Court on Friday constituted a three-member committee to inspect and audit the accounts of these schools.

The terms of reference for the committee headed by retired Chief Justice Anil Dev Singh of the Rajasthan High Court are to find out how much funds these schools require to meet their increased financial obligations following the implementation of the Sixth Pay Commission recommendations on pay hike for their staff and on that basis to determine how much fee hike, if at all, was required by them.

The committee will also have chartered accountant J. S. Kochar and the third member will be nominated by the Chief Secretary of the Delhi Government from the field of education.

A Division Bench of the Court comprising Justice A.K. Sikri and Justice Siddharth Mridul directed these schools to render full cooperation to the committee.

If the committee found that the increase in fees proposed is more, the same would be brought down and the excess amount paid by the students would be refunded along with nine per cent interest per annum, the Bench said.

It added that if a particular school was able to make out a case for higher increase in fee, then it would be permissible for such schools to recover from the students over and above what is charged in terms of the Delhi Government decision of February 2009 to allow these schools to hike the fees.

The Bench also pulled up the Directorate of Education of the Delhi Government for dereliction of duty for ensuring a rational fee structure for these schools as par the laid down rules and procedures.

The Bench suggested to the Government to set up a regulatory body to resolve the problem once and for all.

It also recommended to the Union Government to consider framing a national policy on fee hike for these schools operating across the country. “We recommend that the Government should consider this aspect. If necessary, an expert committee be constituted which can go into feasibility of establishing a regulatory body for unaided/aided and recognised private schools in Delhi and recommend the changes that are required to be made in the existing law or to suggest a separate legislation if that is required,” the Bench said.

“The Central Government may even consider the feasibility of formulating a national policy on fee,” the Bench added.

The orders came on separate petitions by three non-government organisations — the Delhi Abhibhavak Mahasangh, Social Jurist and Faith Academy — challenging the Delhi Government decision to allow the Capital’s private unaided schools to hike fees.

The petitioners had submitted that the decision to allow these schools hike the fees was arbitrary and illogical.

They further said the Government should not have allowed these schools to increase the fees without examining their financial records and going through the parameters laid down by the Supreme Court and the High Court for fee hike.

The Hindu, August 13, 2011

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Verdict on petitions challenging RTE Act reserved

Courts and PILs, Right to Education

The Supreme Court on Wednesday reserved verdict on a batch of petitions challenging the constitutional validity of the Right to Education Act, 2009, which guarantees free and compulsory education in a neighbourhood school till completion of elementary education for all children between 6 and 14 years of age in the country.

A three-Judge Bench of Chief Justice S.H. Kapadia, Justices K.S. Radhakrishnan and Swatanter Kumar reserved verdict at the conclusion of marathon arguments spread over nearly four months.

The petitioners contended that the RTE Act “has included all sorts of schools, including private unaided and minority schools within its wings, in complete disregard and violation of the law. The Act is violative of the fundamental right of private unaided schools enshrined under Article 19(1)(g) of the Constitution and the minority schools enshrined under Articles 29 and 30 of the Constitution.”

They argued that the law completely failed to address the issue of quality education. “It discriminates between children by applying the faulty concept of neighbourhood schools, it is silent on pre-primary education for children between 3 and 6 years and it makes no mention of the learning levels of children etc.”

Pointing out that every unaided and minority school would now have to admit without any choice any child who came from its neighbourhood, they argued that this would compel poor children to study in incompetent schools in their locality.

It was argued that the Act directing schools to provide free and compulsory education to 25 per cent students violated petitioners’ fundamental right to establish and administer the educational institutions. They said the unfettered right, which the private unaided schools were now enjoying, would be taken away and once these institutions were subjected to provisions of the RTE Act, the character of an unaided institution would be taken away.

Further it was contended that the Act violated the right of a minority school, which so far did not require any recognition and thus had unfettered right of admission. If the Act was applied to private unaided schools, it would make it very difficult to recover fees from its students.

The Centre, however, said the Act was enacted to secure the fundamental right to education of children.

The Hindu, August 04, 2011

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