Back
2020 Supreme(Ker) 36
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.MUHAMED MUSTAQUE, J.
The Trustee Hidaya Educational & Charitable Trust, Muhammed Umer – Appellant
Versus
State Of Kerala – Respondent
WP(C).No.25006 of 2017(A)
Decided on : 24-01-2020
For the Appellant : SRI.R.K.MURALEEDHARAN
For the Respondent: S. KANNAN
IMPORTANT POINT
Our Constitution accords special protection to the minorities under Article 25, Article 29 and Article 30. Cultural rights, as protected under Article 29, would include nature of education as well. The right to establish and administer educational institutions under Article 30 would also include the right to choice of education, subject to any restriction imposed under law. However, these rights do not extend to dilute the secular nature of education. These rights cannot override the basic values of the Constitution. It can be exercised only in consistent with the fundamental values of the Constitution. The status of minority institutions in relation to imparting elementary education is relatable to State function. Minority institutions, therefore, cannot shrug off their role as State functionaries and protect sectarian education under the garb of Articles 29 and 30. Article 21A and RTE Act of compulsory elementary education do not conceive the idea of education beyond the realm of secular activity of State. If minority institutions are given free hand to promote religion, it would result in denial of admission to such schools based on religion.
Headnote:
Constitution of India-Article 21A- The RTE Act was enacted by the parliament after the insertion of Article 21A in the Constitution- Under Section 29, the Act mandates that the curriculum and evaluation procedure should be as laid down by the appropriate authority to be specified by the government. Appropriate authority, as defined under Section 2(a)(ii)(A) in relation to school within the State, is the State Government. In such circumstances, no school which is required to have recognition shall impart any religious instruction or religious study without permission from the State Government.
Statement of facts:
Did our Constitution intend to transform civil society composed in the polity; if so, in what manner? Does the word 'secular' in the Preamble denote the character of polity alone? Or, does it intend to give a new shape to civil society? What matters while imparting learning in elementary school? Did our Constitution conceive elementary education tightened within the boundaries of schools segregated on communal line slipping into the position dismantled in Brown v. Board of Education of Topeka, [347 U.S. 483]? These are the foremost questions that have come up for consideration while deciding the fate of this writ petition filed by a private unaided school, imparting elementary education, challenging the State's action of closing down the school on the premise that it promotes exclusive religious instruction and admits only students from one particular community thereby posing threat to the secular fabric of society.
Finding of the court:
The petitioner imparts religious instruction exclusively following Islamic religion- This cannot be permitted. Since it offends the very fabric of the secular society, the Government is justified in ordering closure of the school. However, taking note of the peculiar facts and circumstances of the case, this Court is of the view that an opportunity should be given to the petitioner to desist from imparting religious instructions or study without permission from the Government. In light of the fact that this issue is of great significance, the Secretary of General Education Department is directed to issue a general government order directing all recognised private schools in the State to desist from imparting religious instruction or religious study without permission from the Government. In light of the above, if the Government finds that inspite of the direction, schools including that of the petitioner violates such order, the Government can initiate action for closure and derecognition of such schools.
Result: Disposed of
JUDGMENT :
Did our Constitution intend to transform civil society composed in the polity; if so, in what manner? Does the word 'secular' in the Preamble denote the character of polity alone? Or, does it intend to give a new shape to civil society? What matters while imparting learning in elementary school? Did our Constitution conceive elementary education tightened within the boundaries of schools segregated on communal line slipping into the position dismantled in Brown v. Board of Education of Topeka, [347 U.S. 483]? These are the foremost questions that have come up for consideration while deciding the fate of this writ petition filed by a private unaided school, imparting elementary education, challenging the State's action of closing down the school on the premise that it promotes exclusive religious instruction and admits only students from one particular community thereby posing threat to the secular fabric of society.
2. These questions arise against the backdrop of declaring right to elementary education as a fundamental right under Article 21A of the Constitution of India and the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as the “RTE Act”). This case presents an issue of seminal importance, do private unaided schools which require State recognition have the right to promote a particular religion to the exclusion of other religions while imparting elementary education?
3. The school is alleged to be functioning without Government recognition or CBSE affiliation and have admitted more than 200 students, all of them adherents to Islam. The State Government acting on intelligence report issued order of closure. The State Government noted that admission was being given exclusively to children belonging to one particular community. Acting upon the Government direction, the Deputy Director of Education, Trivandrum, issued the impugned order. Ext.P9 is the said order. It seems that before issuing the order of closure, an inspection was conducted by the Deputy Director of Education, who observed that the syllabus was in accordance with the curriculum prescribed by MFERD (Millet Foundation Education Research and Development). On browsing through the website of Millet Foundation, it was seen that the aforesaid foundation is providing a common platform to Muslim Educational Institutions for sharing, networking, co-ordinating and co-operating among themselves, to complement the efforts of individuals, professionals and organizations to achieve excellence in the field of education within the boundaries of Islamic Shariah. It is appropriate to refer to the presentation of the aforesaid foundation in the website, which reads thus:
“MFERD is a not-for-profit organization conceived in 2004 with the vision of providing a common platform to Muslim educational institutions for sharing, networking, co-ordinating and co-operating among themselves, thereby complementing the efforts of individuals, professionals and organizations in achieving excellence in the field of education within the boundaries of Islamic Shariah.
Our aim is to address various challenges faced by Muslim educational institutions and find solutions through collaboration, research and development.
One of our major objectives is to provide quality education by formulating and designing a value based curriculum for schools to nurture and culture our future generations with Etiquettes (Tarbiyat), Education (Taleem) and Excellence (Miyaar).
MFERD is a community of global educators from different fields who endeavour, encourage, share ideas and mutually work with one another for the success and uplifment of the Ummah, for the Ummah and by the Ummah.
MFERD is a registered trust and has a central office at Hyderabad (Telengana) to coordinate its activities.”
This clearly shows that apart from achieving excellence in temporal education, an attempt is made to promote the individual identity of the pupil based on Islamic Shariah which would neces
