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Hard lessons

Courts and PILs, Curriculum Development

THE two-month-old All India Anna Dravida Munnetra Kazhagam (AIADMK) government in Tamil Nadu suffered a tremendous loss of face when the High Court of Madras struck down, on July 18, an amendment it made to the Uniform System of School Education (USSE) Act of Tamil Nadu, 2010. The amendment aimed at shelving the Samacheer Kalvi (equitable standard education) scheme introduced by the previous Dravida Munnetra Kazhagam (DMK) government. Describing the amendment as a piece of “colourable legislation”, the court said it was “unconstitutional and ultra vires Article 14 of the Constitution”.

Though the State government moved the Supreme Court on July 19, it did not get the relief sought. In response to its special leave petition (SLP) that sought the quashing of the High Court judgment and an interim stay, the Supreme Court, on July 21, directed the government to begin distribution of the USSE textbooks forthwith and complete it on or before August 2 instead of July 22 as stipulated by the High Court. The court posted July 26 as the date for the final disposal of the case.

The court order left the government with no option but to implement the USSE for all classes in all schools under the four streams – State Board, Matriculation, Oriental, and Anglo-Indian – in the current academic year itself.

The Samacheer Kalvi scheme was introduced for Classes I and VI all over the State in the academic year 2010-11. It was also decided then that it would come into force for classes II to V and classes VII to X in the academic year 2011-12.

The State government’s decision to challenge the High Court judgment triggered a protest, with students, parents and organisations such as the Students Federation of India (SFI) staging demonstrations in different parts of the State calling for the implementation of the scheme without further delay. Signature campaigns and dharnas were also launched. In Chennai, activists of the SFI staged a road roko agitation near the Directorate of School Education and courted arrest.

Major political parties in the State, including the Desiya Murpokku Dravida Kazhagam (DMDK), which is the principal opposition party in the State Assembly, the DMK, the Communist Party of India (Marxist), the Communist Party of India, the Congress and the Pattali Makkal Katchi, have urged the government not to defer the implementation of the scheme, particularly in the wake of the High Court order.

High Court’s direction

The High Court had also directed the government to distribute forthwith the textbooks printed under the USSE and complete the process on or before July 22 to enable teachers to commence classes.

Delivering the order, the First Bench, comprising Chief Justice M.Y. Eqbal and Justice T.S. Sivagnanam, said: “[W]e feel that the decision of the State government to put on hold the Uniform System of Education and to revert back to the 2004 stream is undoubtedly a step backward, which we shall not permit.”

In tune with the Supreme Court’s observation in the Indra Sawhney vs Union of India case of 2000 that the court “can tear the veil to decide the real nature of the statute if the facts and circumstances warrant such a course”, the High Court said: “We have no hesitation to hold that the State has exceeded its powers in bringing the Amending Act to postpone an enactment which has already come into force.”

“The doctrine of colourable legislation also states, ‘whatever legislature cannot do directly, it cannot do indirectly’,” it added. “An amendment Act which has the effect of repeal of the parent Act under the guise of postponement of its implementation, when in fact the parent Act has already been implemented, though partially, has to be held to be an arbitrary piece of legislation which does not satisfy the touchstone of Article 14 of the Constitution of India.”

The court said that amendments to principal or subordinate legislation either by executive decisions or by a legislative Act should normally have one paramount consideration in mind, that is, the persons who were going to be affected by such amendment. “Bearing in mind the above principle, we have no hesitation to hold that if the impugned amending Act is allowed to stand, the impact on the education system and over one crore students would be tremendous and would result in far-reaching consequences.” The petitioners had also submitted in a singular voice that students had been idling for nearly one month now as they had not been provided with textbooks, it pointed out.

Against this backdrop, the court said, “[T]o end the impasse, the only legal, reasonable and proper solution would be to direct the State to commence academic session 2011-2012 by following the uniform syllabus and common textbooks under the uniform system which have been printed and are ready for distribution, while simultaneously permitting the State to examine the issues pointed out by the committee [appointed by the present government, as directed by the Supreme Court] to suggest additions, deletions within the shortest possible time, say within three months, and, if necessary, to introduce a supplemental booklet to cover the topics which are stated to have been omitted and simultaneously provide material to the teachers guiding them about teaching methodology for effective implementation of the uniform system of education.”

Expressing concern about the plight of as many as 1.23 crore students from Standards I to X in all the four streams of school education in the State, the court said the children were left without any textbooks and syllabi. “[A]long with their parents, they are in a dilemma as to whether the uniform syllabus, which was to commence as per the Tamil Nadu Uniform System of School Education Act, 2010, would be postponed because of the amendment brought in the Act by the new government immediately after coming into power, and also as to whether the textbooks as per the new syllabus got printed and made ready by spending about 200 crore rupees of public money by the erstwhile [DMK] government would be destroyed or disposed of.”

Samacheer Kalvi

In its preface to the order, the Bench also gave a brief history of the Tamil Nadu USSE Act, 2010. The Samacheer Kalvi scheme was introduced to provide a common syllabus, common textbooks and common examinations for all the four streams of school education. The then DMK government was of the view that it was “indispensable to evolve a uniform system of school education in the State to ensure social justice and provide quality education in all the schools in the State”. The court also referred to the appointment of the Muthukumaran Committee to examine the possibilities of implementing the USSE and also recounted other follow-up measures taken by the then government ( Frontline, July 1, 2011).

Private school managements from various districts challenged the Act on various grounds, one of which was that the legislation interfered with the right of children to choose their preferred system of education. However, the Act was upheld by a Division Bench of the High Court on April 30, 2010. The “aggrieved parties” moved the Supreme Court by filing SLPs that were ultimately dismissed, and the judgment of the Division Bench attained finality.

However, the Cabinet of the new government at its first meeting on May 22 decided to put on hold the Act and the Assembly passed on June 7 a Bill to amend Section 3 of the Act [fixing the time frame for its implementation and the norms for giving instructions and conducting examination]. The amendment was stayed by the High Court on June 10. But the court made it clear that the stay would not operate as a bar for the government to conduct a detailed study of the common syllabus and common textbooks introduced under the original Act and that the government was entitled to delete, add, modify, substitute or alter any chapter, paragraph, portion of textbooks that were included to propagate the achievement of a political party or an individual and issue appropriate instructions in this regard.

Challenging the High Court’s stay order, the State government moved the Supreme Court. The apex court disposed of the appeal on June 14 with certain directions, amending the interim order of the High Court “in the interest of justice”.

The order said that USSE, which had already been in force for Standards I and VI for the academic year 2010-11, should continue “in all aspects” for 2011-12 as well. The court directed the State to appoint a committee “primarily to examine ways and means of implementing the ‘Uniform Syllabus System’ to the Classes (II to V and VII to X) in question, common syllabus and the books which are to be provided for the purpose”, besides going into the “objections which are raised to the books already published or any part thereof”. The court also said that the expert committee headed by the Chief Secretary to the Tamil Nadu government should place its recommendations before the High Court within three weeks.

Pursuant to the order, a committee was constituted by the government on June 15 and the panel submitted its report to the High Court on July 5. The panel, in its recommendations, concluded that the common syllabus for implementing the USSE was “not up to the standard” and the Samacheer Kalvi textbooks could not be used for the academic year 2011-12.

Striking at the roots of the USSE, the committee concluded that equality in schools would not be achieved just by imparting education by devising a common syllabus and textbooks but would also need other important segments of education such as infrastructure in classrooms, toilets, drinking water facilities and a safe environment for children and, most importantly, qualified, well-trained teachers in the right pupil-to-teacher ratio.

Claiming that the committee’s recommendations were “unanimous”, the report decried the common syllabus for not being age-appropriate. The report also faulted the syllabus on the grounds that it had been organised around abstract concepts without giving importance to key themes in any subject area; that it deviated from the National Curriculum Framework 2005 with regard to primary and upper primary stages; that it neglected analytical thinking; that it omitted life and survival skills; and that it lacked gradation and interdisciplinary relationship among the concepts in a subject and across subjects.

“The committee is of the strong opinion that the common syllabus has been framed in a hurried manner within a very short period of time without taking into account the basic requirements of formulating a good curriculum,” the report said. Dubbing the textbooks “substandard”, the committee appointed by the AIADMK government said, “[T]he textbooks seemed to be prepared in haste and in a hurried manner. The textbooks have been translated from Tamil into English, which in general is very poor and at times atrocious. This process of literal translation has made the science and social science textbooks of all the classes worthless.”

N.G.R. Prasad, senior counsel appearing for the State Platform for Common School System, argued that the Supreme Court had not directed the committee to reject the uniform syllabus and the common textbooks but only to submit its recommendations as regards the implementation of the USSE. Therefore, the report of the committee was far beyond the mandate granted by the apex court, he argued.

‘Specific mandate’

The High Court Bench also observed that the Supreme Court had given a specific mandate to the committee to review the quality of the textbooks prepared under the USSE and there was no direction to decide whether the Samacheer Kalvi textbooks could be used for the current academic year. “But the committee came to the conclusion that the Samacheer Kalvi textbooks cannot be used for the academic year 2011-12. A similar stand was taken by the respondent-State in their counter-affidavit. Not only that, the whole exercise was done by the Secretary, School Education Department, right from the preparation of the draft report till the finalisation of the final report,” it pointed out.

After going through the minutes of the proceedings of the expert committee meeting, the High Court said not a single member of the panel expressed the opinion that the textbooks could not be used for the academic year 2011-12. “At this stage, we may note that the committee members were not of unanimous opinion that the uniform syllabus and common textbooks have to be discarded for the current year. Each member has pointed out certain changes and additions. The nominees from the NCERT [National Council of Educational Research and Training] have also voiced such an opinion. The positive aspects of the uniform syllabus and common textbooks have been pointed out in their individual reports,” the court observed.

Referring to the efforts made by the previous government in evolving the USSE system, the court said, “We cannot countenance the submission made by the State as well as the matriculation schools that the introduction of the Uniform System of Education was done in a hasty manner.” On the government’s claim that certain provisions of the Act, such as the notification of an Academic Authority, were not complied with, the court said: “We fail to understand as to why the student community should be put at peril for the inaction or lethargy of the executive.”

Referring to the decision of the Cabinet to put on hold the USSE at its hour-long meeting on May 22 where several issues, including the one relating to Samacheer Kalvi, were discussed, the court said, “ Prima facie, this shows that the action of the government to switch back to the old syllabus is not based on the report of any expert committee…. On a closer examination, by going into the true intent of the amending Act, it is in effect a repealing Act, seeking to repeal the parent Act.”

The State government’s SLP said: “The High Court failed to appreciate that the amendment Act is a valid legislation empowering the executive government to decide when to implement the uniform syllabus after overhauling the syllabus thoroughly and all steps are taken to comply with the directions of the judicial verdict.

“As such it is a well-recognised legislative tool which ought not to have been lightly interfered with and interdicted, that too without any finding of transgression of constitutional guarantees and/or nullifying judicial pronouncement.”

Frontline, July 30-August 12, 2011

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‘Schools will follow old syllabus until HC verdict’

Courts and PILs, Curriculum Development

CHENNAI: A diagram in a science textbook depicting the sun in shadow during a lunar eclipse has been blacked out as the sun resembled the DMK’s symbol, advocate N G R Prasad submitted in the Madras high court on Thursday.

The submission by the advocate, appearing on behalf of the State Platform for Common School Sytem, came in the course of a hearing on petitions relating to the Tamil Nadu Uniform System of School Education Act, 2010. The matter came up before Chief Justice M Y Eqbal and Justice T S Sivagnanam. Contending that there was no material to postpone the implementation of the common school syllabus (‘Samacheer Kalvi’), he said the amendment to the Act was made not to promote education but for the purpose of discarding the common syllabus.

Stating that the nine-member committee appointed as per the Supreme Court’s directions to review the Samacheer Kalvi textbooks did not include any academician, he said it contrasted sharply with the panel formed to study the question of introducing a common syllabus. It included S Muthukumaran, former vicechancellor, Bharathidasan University, educationist S S Rajagopalan, a former school principal, and representatives from Matriculation and Anglo-Indian schools.

Senior advocate S Silambanan, appearing on behalf of schools against the implementation of the Samacheer Kalvi syllabus for classes II to V and VII to X, questioned the hasty printing of textbooks under the common syllabus. He said it created the impression that prejudice would be caused if the books (made at Rs 200 crore) were not distributed. The Chief Justice then asked if counsel had seen a TOI news report on Thursday quoting school education minister C Ve Shanmugam as saying that the government had ordered printing of books under the old syllabus (before implementation of Samacheer Kalvi) on June 29.

Supreme Court advocate P P Rao, who appeared for the state along with advocate general A Navaneethakrishnan, said the apex court had laid down that the common syllabus would continue for classes I and VI. For other classes, the implication of the order was that until the high court reached a verdict on the committee report, schools had to revert to the old syllabus. The matter has been posted for hearing on Monday.

The Times of India, July 08, 2011

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Private schools are money spinning ventures: Supreme Court

Courts and PILs, Right to Education

New Delhi, Feb 24 (IANS) The Supreme Court Thursday said private schools were money- spinning enterprises and asked them to wake up to their corporate-social responsibility by educating poor children.

The apex court bench of Chief Justice S.H. Kapadia, Justice K.S. Panicker Radhakrishnan and Justice Swatanter Kumar said this on a petition by the Society for Unaided Private Schools of Rajasthan.

The society has challenged 25 percent reservation of seats for students from economically weaker section (EWS) under the Right of children to Free and Compulsory Education law.

The court indicated that it might call for the accounts of last five years of these schools to check their financial status.

The court asked senior counsel Vikas Singh, appearing for the schools, to tell ‘if there is a mechanism for the regulator (under the right to education) to exempt a school from admitting 25 percent (of the) students from the EWS’.

The court reminded the private educational institutions that they ‘are questioning the wisdom of parliament as the said provision flows from a statute enacted by parliament’.

Vikas Singh told the court that under Article 21A of the constitution ‘parliament can’t make a law and compel an unaided school whether belonging to minorities, or other wise, to provide free and compulsory education to the children from EWS of society’.

The senior counsel told the court that ‘the right to education law is not in line with Article 21A but is contrary to its objectives’ and that of the fundamental rights.

Article 21A of the constitution states that the state shall provide free and compulsory education to all children of the age of six to 14 years in such manner as the state may, by law, determine.

Vikas Singh said that the said provision of the statute violated the right of an affluent child from taking admission to a school of his choice.

The court dismissed the plea on the grounds that there was no student with such a pleading before it. ‘None of them is before us. Where are the pleadings of the rights of the affected child,’ the court asked.

Schools’ counsel said that whatever law the apex court will lay would affect this (affluent) child also. At one point, Vikas Singh said that the government would use it (right to education law) ‘as an election issue’.

The court asked Additional Solicitor General Indira Jaising to refer to the report of the Law Commission on this issue.

Jaising said that the commission dealt with this subject in its report but there were no recommendations.

Taking a dig at Vikas Singh, she told the court: ‘He (Vikas Singh) may be representing a higher (class) school but we are concerned with the country as a whole.’

Sify, 24 February 2011

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Consumer court gets tutorial to refund fees

Courts and PILs

In a relief to thousands of students studying in coaching institutes, a consumer forum in Delhi has held that they can seek a refund of fees if they decide to leave an institute without completing the course.

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High Court asks school to take back dyslexic student

Courts and PILs

NEW DELHI: Shocked at the manner in which a Delhi school treated a student by asking him to leave once he was found to be dyslexic, the Delhi high court has ordered the school to take him back.

Giving relief to Priyam Kumar, a student of St Mary’s School in Safdarjung Enclave, Justice Kailash Gambhir directed the school to take back the student in class IX since he has cleared the class VIII annual examination.

Criticising the school’s attitude, the court noted that instead of providing him with special care the student was meted out “harsh and inhumane treatment”.

“School poses multiple challenges for students with dyslexia and such other disorders, but it is the responsibility of the school to provide a friendly and conducive environment to channelize their energies so that such children can successfully thrive in the classroom,” the HC observed while asking the school to immediately take back Kumar on its rolls.

HC also empathized with the parents of children with dyslexia. “Parents of such children already have an arduous task and schools are expected to make concerted effort to make their task easier and not subject them to their administrative tyranny leaving them in the lurch,” the court said.

Priyam’s father had approached the court after the school ignored the state education directorate’s order directing the school to take back the student.

On its part the school pleaded that such students need more attention and hence it is difficult to handle them.

HC took a dim view of the school’s submission and said, “Giving education to such students will make the environment more congenial and other students will also learn as how to cooperate with each other.”

The court also sought a status report from the school by July 14.

The Times of India, 15 May 2010

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Setting up private school is fundamental right of a citizen, says HC

Courts and PILs, Edupreneurship, Licenses and Regulations

MUMBAI: To set up a private un-aided school is the fundamental right of every citizen, the Bombay HC has ruled. Giving a major push to private equity in setting up schools, a division bench of Justice Ajay Khanwilkar and Justice Sambhaji Shinde overturned a 2009 ban on permissions for new unaided Marathi schools.

“The state should encourage private investment in educational institutions on unaided basis, which the private management is entitled to pursue on condition that it would fulfil the prescribed norms and standards and not indulge in profiteering and commercialisation of education,” said the bench.

“The induction of private institutions into the field of education would introduce competition, which is healthy for the growth of quality education and not merely paper-compliance-education imparted by the state through schools receiving grant in aid, which have dearth of highly trained and professional staff and are notorious for lack of punctuality and efficiency.”

The HC said it would also give children a “fair opportunity to choose between the two institutions”. The court was hearing a bunch of petitions filed by around 70 trusts challenging a July 2009 government resolution that refused approval for new private, unaided Marathi schools till the state has finalised a “School Development Plan”. The SDP has been in the works since 2000, but has still not seen the light of the day.

The court rejected the government’s contention that the ban was a reasonable restriction on fundamental right and termed the new rule “illegal and unconstitutional being discriminatory and arbitrary and also suffers from the vice of non application of mind”. The court said the plan was applicable only to government and aided schools and not to private unaided institutions.

Referring to the Supreme Court’s verdict on private professional colleges in the TMA Pai case, the court said the right to establish an educational institution was a fundamental right guaranteed to “every citizen” of India. The court held that the restrictions, such as the necessity to take prior permission to start a private unaided school, impinges on the fundamental right to occupation. The state can impose conditions on such schools, but only at the stage of granting/ continuing recognition, said the court.

“The demand for more educational institutions is ever growing. If the state cannot provide educational institutions imparting quality education at every corner of the state—even though constitutionally obliged to do so—on account of financial compulsions or inadequate infrastructural resources, there is no justification in denying the opportunity to the private management to establish an unaided educational institution in such areas, on the grounds that the locality is not included in the state’s perspective or School Development Plan,” said the judges.

The HC said the ban could not be sustained in the face of statistics that there was no secondary school in 50,000 villages and no primary school in 11,000 villages across Maharashtra. The government argued that it was the state’s duty to provide quality education. The court said the “subject of imparting education cannot be said to be in the exclusive domain of the state”.

The state’s other contention that the masterplan was necessary to prevent schools from crowding in one locality also failed to cut ice with the HC. The government counsel claimed that due to the mushrooming of schools, the state was forced to close down divisions or even entire schools due to lack of demand.

Disagreeing with the view, the HC said the existence of a particular school in a locality could not be the grounds to deny permission to set up a new institution. “The children from the locality will have a choice between the private unaided school and the municipal or grant in aid schools. Taking any other view would be denial of opportunity to the children to exercise the option to pursue quality education offered by unaided schools to make them self-reliant and not merely potential pen pushers.”

The government’s final argument that that private institutions exploit students as well as teachers, led the court to say that such a condition exposed its weakness. “The state should play a proactive role in setting up permanent regulatory authority invested with the task of continual monitoring of such institutions, in respect of infrastructure, quality of education and also matters related to the staff and oversee if the fees were used in profiteering and commercialisation of education.”

The court ruled that the July 2009 GR was discriminatory as private unaided English, Urdu and Gujrati medium schools as well as municipal Marathi-medium schools were approved during this period. The high court has directed the state to take a decision on the request of the schools for grant of recognition by May 31, 2010, so that they can start their academic year in June 2010.

Shibu Thomas, The Times of India, 19 April 2010

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Delhi Government Ad for class 6 entrance test violates education act

Courts and PILs, Government run schools, Right to Education

The Right to Education Act (RTE) that came into effect from April 1 mentions there should be no entrance test for a child seeking admission to any class.But a Delhi government advertisement on March 28 — an admission notice for Rajkiya Pratibha Vikas Vidyalayas (RPVVs) —  says students must sit for an entrance exam for admission to class 6.

In what would be a clear violation of the section 13 of the RTE Act, “if any school or person … subjects a child to a screening procedure, shall be punishable with fine which may extend to twenty-five thousand rupees for the first contravention and fifty thousand rupees for each subsequent contraventions.”

The admission notice mentions, “All registered students will have to appear in the entrance test that will be administered on the same day, date and time in all RPVVs.” The entrance test for the RPVVs, which have classes 6 to 12, is conducted every year consists of objective type questions to test numerical ability, mental ability, general knowledge and language.

City-based lawyer and activist Ashok Agarwal, who is also associated with the NGO Social Jurist, has already written to CM Sheila Dikshit, Directorate of Education (DoE) and Delhi Commission for Protection of Child Rights (DCPCR) to intervene and withdraw it immediately.”What is the point of having such an act and then see it undermined by such tests. The government should withdraw the notice immediately,” said Agarwal, who plans to file a PIL if the government does not take immediate action.

“When I approached government officials, they said that in the absence of an entrance test, the standard of the RPVVs will fall,” he added.

Amod Kanth, chairperson, DCPCR said, “We will ensure there is no violation of the Act. We will take up the issue with the DoE on Monday.”

Hindustan Times, 4 April 2010

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Private schools move apex court against education act

Courts and PILs, Right to Education

The legislation that makes free and compulsory education a fundamental right of a child has hit a legal hurdle.

Some private schools have challenged the Right to Free and Compulsory Education Act (RTE Act), saying it was an attempt by the government to abdicate responsibility of providing education to children and shifting the burden on private schools.

Arguing for the Society for Un-aided Private Schools, advocate Harish Salve told the Supreme Court on Monday that the Act was “unconstitutional” and “violated fundamental rights” of unaided private educational institutions.

A bench headed by Chief Justice K.G. Balakrishnan issued a notice to the Centre and also the human resource development ministry.

Along with free and compulsory education for children aged between 6 and 14, the Act also mandates 25 per cent reservation in all schools for children from weaker sections.

Salve said the Act violated the rights of private educational institutions and the maximum autonomy granted to them. The public interest litigation (PIL) recalled a Constitution Bench order, which ruled for maximum autonomy for private institutions.

The PIL also challenges certain sections of the Act that take away the right of schools, including minority institutions, to select students. The Act imposes absolute mandates upon the schools to admit students without screening them and restrains the authorities from verifying the proof of age, it says. The Act is silent on the fate of children between the age of 3 and 6 years, a crucial period for a child’s education to commence.

Hindustan Times, 23 March 2010

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