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A Policy Blind On Minority Rights

A Policy Blind On Minority Rights

The National Education Policy 2020 recently approved by the Union Cabinet is generally applauded and celebrated as a praiseworthy vision document on educational reforms in the country.  But on critical appraisal what it seemingly lacks is objectivity and incapacity to address the growing demands of a just and equitable society and its failure to recognize meaningfully the minority rights, a cherished ideal and a gift of the Constitution occupying a transcendental and unique place in our constitutional scheme. As such any Policy Statement without meaningfully recognizing this sacred right is incomplete, as minority rights constitutes the golden thread running through the fabric of the educational domain in India.

What the Policy Proclaims :

The released Policy document comprises of four parts dealing separately on school education, higher education, other key areas of focus, and making it happen. Policy has been tailored to ensure inclusive and equitable quality education and promote lifelong learning opportunities for all by 2030, as part of the global education development agenda. The Policy proceeds on the fundamental premise that Education is fundamental for achieving full human potential, developing an equitable and just society, and promoting national development.

An evaluation of the Policy shows that minority rights do not form part of the vision or the principles of the Policy. What it states on Minorities could be discerned from Para.6.2.4 of the document which reads: “Minorities are relatively under-represented in school and higher education. The Policy acknowledges the importance of interventions to promote education of children belonging to all minority communities, and particularly those communities that are educationally underrepresented”. No distinction is drawn between the constitutionally protected minority-run educational Institutions forming a separate class by itself and the remainder. One cannot have any rational disagreement on the Policy’s laudable objectives. But if the Policy really intends to build upon India’s traditions, value systems and strives for egalitarian pattern of society, truly minority rights should be meaningfully acknowledged, respected and effectuated.

Para.8.7 of the Policy document on School education says that public and private schools will be assessed and accredited on the same criteria, benchmark and processes. On Higher Education sector, Para.18.13 states all Higher Educational Institutions- Public and Private shall be treated on par within the regulatory regime, while encouraging private philanthropic efforts. Thus the Policy has not fully recognized the existence of minority educational institutions as constitutionally protected class.

Minority Rights as Sacred Constitutional Guarantees :

In a pluralistic Society, rights of minorities and weaker sections need to be safeguarded. This approach is not designed to generate inequalities but to bring about true equality and to instill a sense of security in minorities. This feeling of equality and security can be ensured only by preserving the minority character of the minority-run Institutions by guaranteeing autonomy in the administration of these Institutions. Minority rights are not fleeting promises, but they are constitutional prescriptions and the music of the Constitution recognizes its rhythm.

Minority educational Institutions are ‘melting pots’ in our national life. They are authoritative symbols of nationality. Minority right is not individual, but community right, meant to benefit the community. Right to conserve minority language is constitutionally protected under Article 29 and the right of the Minorities to establish and administer educational institutions of their choice is additionally protected by Article 30. These enumerated fundamental rights of the minorities are not seen meaningfully acknowledged in the Policy.

The Indian cultural tradition of protecting the insular minorities against exclusion ‘from the shores of a vast sea of humanity’ is well recognized from time immemorial. The UN Declaration of Minority Rights 1993 stresses on constant promotion and realization of the rights of ethnic, religious and linguistic minorities as an integral part of the development of society as a whole. The object of this approach was to provide equal opportunity for conservation of culture and protection of linguistic and religious minorities against coerced assimilation in the educational front, with the aim to hold India’s many people, languages, culture and religion into an atmosphere of tolerance and intellectual growth.

In TMA Pai Foundation Case, the Supreme Court explaining the significance of minority rights observed: “India is a land of diversity of different castes, communities, languages, religions and culture. Although these people enjoy complete political freedom, a vast part of the multitude is illiterate and lives below the poverty line. The single most powerful tool for the upliftment and progress of such diverse communities is education”. Thus educational and minority rights are intertwined and a minority Institution may promote its religion, tenets, philosophy, culture, language or literature and may choose its own medium of instruction.

In Pramati Educational and Cultural Trust case (2014), the Supreme Court affirmed that minority Institutions constitute a separate class and their exclusion from the ambit of Article 15(5) is not   violative of  Constitution. The Court also held that the Free and Compulsory Education Act, 2009 in so far as it applies to minority schools aided or unaided is ultra vires the Constitution. However, it is also settled that minority rights are subject to the Constitution and national interest.

Minorities as Part of Indian Culture :

Education is a preparation for living in a better way in future with an ability to participate successfully in the modern economy and society. It is empowerment for socio-economic mobility, an instrument for reducing socio-economic inequalities, and an equipment to trigger growth and development. So much so, the linkage of the right to education to the right to dignified life, equality, freedom, cultural and minority right has become highly relevant. K.T. Shah, a great visionary, expressed in the Constituent Assembly thus: “whether we think of the arts, the learning, the sciences, the religion or philosophy, culture includes them all, and much else besides. As such, it is progressive and should be regarded as being capable of constant growth as any living organism”.

It is a reality that culture as a sense of ultimate value possessed by a particular society, and expressed in its collective institutions, endeavours and designates a way of life and deeply influences human behavior. Attainment of perfection in or through culture is a desirable social practice.

The Forgotten Truth:

The seminal contributions of Christian Missionaries and Missionary Societies in building up India’s modern educational system can never go unnoticed. A large tract of the country was benefited from their presence and deeds. They inculcated moral values in society. They were the catalysts of social transformation and change in many areas of life and their energetic efforts played a prominent role in the intellectual progress of the country. These noble men who have dedicated themselves for the service and well being of the country are part of India’s history in the educational sector. The fruits of their wisdom and the pioneering role played by them as initiators in education bear eloquent testimony for their missionary values which have become integral part of India’s rich tradition.

What 1986 National Policy Said:

The National Education Policy 1986 explicitly recognized minority rights and the importance of education of minorities with clarity. It stressed on the need for protecting the constitutional guarantees given to them to establish and administer their own educational institutions, and protection to their languages and culture.   In contrast with this trend, the 2020 Policy is blind on the constitutional right of the minorities to establish and administer educational institutions of their choice and the existence of such institutions as a constitutionally protected separate class.

Education as a Fundamental Right :

Education is not trade or commerce. Neither is it business or occupation. It is a welfare activity pursued as a public function. NEP 2020 also asserts education as a public service.  At no stretch of imagination, education can be used as a means for commercialization, exploitation and profiteering.  The Constitution (Eighty–sixth Amendment) Act, 2002 was a revolutionary attempt and it specifically elevated right to free and compulsory education of   children of the age of   six to fourteen years as a fundamental right under Article 21A and it is for the State to ensure this right in the manner determined by law.

Intervention by law has taken place thereafter by enacting the Right of Children to Free and Compulsory Education Act, 2009 which became effective from 01-04-2010. Being the first Policy framed after the constitutional amendment adding right to education as a fundamental right under Article 21A, the Policy should have contained rational principles and approaches treating right to education as a fundamental right enforceable against State and State actions by expressly treating educational service as State actions. But very little has been said about the right to education as a constitutional guarantee against the State.

The Policy encourages privatization of education and this trend has to be viewed in the context of a changing role of the State in the 21st century. But the question seemingly unanswered in the Policy is whether the State obligation under Article 21A is to be met on its own or by encouraging privatization.   Privatization of education has separate goals different from the goals of the State and with privatization accompanied by commercialization, profiteering and exploitation, can it secure and take the right to education under Article 21A to its meaningful heights. Is the Policy approach fully conducive for a multilingual country like India is the further question looming large?

Allowing the entry of Foreign Universities to India may be welcomed. But the apprehension is that does it not make higher education costly and beyond the reach of the common man. The Policy does not answer this.   It is also silent on the public concerns that Private foreign entities may eventually emerge as prominent power centres in the educational scenario in India resulting in the abdication of the traditional sovereign function of the State to private actors thereby exposing egalitarian goals to risk.

Vision Great, Yet Incomplete:

A Policy document is not law. It only outlines what the Government hopes to achieve

and the methods and principles it will employ to achieve them. But the laws are preceded and guided by policies and it forms the basis of law that finally sets the standards, procedures and principles. Hence, the policies of the Government should demonstrate elements of good governance and that it should be legitimate, proportionate and equitable.

While the NEP is a manifestation of the changing roles of the Government in a Modern State, it has not fully recognized that constitutional values guiding a Limited Government controlled by Fundamental Rights remain the same. Goals are high, but the means of achieving these goals are equally important and unless it is properly defined, very little could be achieved from the Policy. The way of achieving the goals adumbrated in the Policy to realize country’s human resource potential to its fullest with equity and excellence should also focus on cultivation of constitutional and moral values and a closer relationship between education and life of the people.

(Adv.Dr.Pauly Mathew Muricken, is a Lawyer at the High Court of Kerala. He is also an Adjunct Professor and Research Guide at The National University of Advanced Legal Studies, Kochi and a member of the Guest Faculty in Law at Cochin University of Science and Technology)

(Published on 17th August 2020, Volume XXXII, Issue 34)