From courtrooms to classrooms

• No quotas in private institutions: In the August 2005 judgement, the SC held that neither could the policy of reservation be enforced by the State nor any quota or percentage of admissions carved out to be appropriated by the State in a minority or non-minority unaided educational institution. The judges said: ‘‘The State cannot insist on private educational institutions which receive no aid from the State to implement State’s policy on reservation for granting admission on lesser percentage of marks, i.e. on any criterion except merit.’’ The bench also was of the opinion that ‘‘a limited reservation of seats, not exceeding 15 per cent, in our opinion, may be made available to NRIs depending on the discretion of the management’’.

• Admissions: The court said up to the level of undergraduate education, the minority unaided educational institutions enjoy total freedom. However, different considerations would apply for graduate and post-graduate level of education, as also for technical and professional educational institutions. Such education cannot be imparted by any institution unless recognised by or affiliated with any competent authority created by law, such as a University, Board, Central or State Government or the like.

• Fee Structure: In the Pai Foundation case, the court declared that every institution was free to devise its own fee structure subject to the limitation that there can be no profiteering and no capitation fee can be charged. According to the Constitution bench in the Islamic Academy Case, a provision for reasonable surplus can be made to enable future expansion. The relevant factors which would go into determining the reasonability of a fee structure are: (i) the infrastructure and facilities available, (ii) the investments made, (iii) salaries paid to the teachers and staff, (iv) future plans for expansion and betterment of the institution etc.

• Regulation and Control: The judgement in the Pai Foundation case is unanimous on the view that the right to establish and administer an institution, the phrase as employed in Article 30(1) of the Constitution (Right of minorities to establish and administer educational institutions), comprises of the following rights: (a) to admit students; (b) to set up a reasonable fee structure; (c) to constitute a governing body; (d) to appoint staff; and (e) to take action if there is dereliction of duty on the part of any of the employees.

A minority educational institution may choose not to take any aid from the State and may also not seek any recognition. Such institutions cannot indulge in any activity which is violative of any law of the land. They can admit all students of their own community.

TN tops

Different states have their own regulations for reservations in education but Tamil Nadu’s case is unique. The Madras Presidency first introduced caste-based reservations in education in 1922. This was challenged in 1950 and struck down by the Supreme Court in the Champakam Dorairajan case on the ground that it discriminated and violated Article 15 (Right to Equality) and 29 (2) (Cultural and Eductional Rights) of the Constitution. The apex court restricted the reservation to 50 percent. So from 1951 onwards, Tamil Nadu had 49.5 per cent reservations in education.

Following the amendment to Article 15(4) enabling provision for reservations in excess of 50 per cent, quotas were hiked to 69 percent in all professional and non-professional colleges in 1980. It continued so till 1993, when senior advocate K M Vijayan challenged the reservation of 19 per cent that was in excess of the stipulated 50 per cent. The then government passed a law providing for 69 percent reservation as desired in the Mandal case. To protect it from legal challenges, it was brought under the Ninth Schedule of the Constitution. However, Vijayan took the case to the Supreme Court, where it has been pending for the past 12 years.

Maharashtra has passed ordinances this month reserving 50 percent for SC/STs and OBCs in their private unaided educational institutes as well, while Uttar Pradesh is likely to pass the bill. — Jaya Menon

Starting School

Nearly every state in the country has similar procedural rules for this. Under the Constitution, no educational institution can be started for a ‘profit’ motive. So it is extremely difficult for an individual to start a school.

In Delhi, for instance, according to the Delhi Education Act, only a society or a trust/ association can open a school. Indiviaduals are barred to stress the the ‘non- profit motive’ of the school. Then the school needs to get an ‘Essentiality Certificate’ from the Directorate of Education, following which land is sold to the school.

Next, the school needs to apply for recognition from concerened authorities — the Municipal Corporation for schools upto standard V and the Directorate of Education for schools upto standard XII. These are accompanied by secondary licenses like Water testing report, health certificate, completion certificates, sanctioned building plan etc. Then follows affiliation to a Board of education, which prescribes examination pattern.

In all, one needs to clear about 12 licenses to start an educational institution. One of these used to be an essentiality certificate that had a cap on the number of schools in the district. But now, the cap has been removed in Delhi, which means an essentiality certificate is granted if the other criteria are fulfilled.

The Central Board of Secondary Education — the largest Board in the world with 8000 plus schools in India and abroad — sends its expert committees to assess a schools infrastucture and teaching staff when a school asks for affiliation.

The numbers of affilaited schools though are growing. ‘‘Our purpose is to have a uniform curriculum that every school follows. We have now made the application process for affiliation online. Each year, we get about 200 applications for affiliation,’’ says an official.

Flagship Schemes

Sarva Shiksha Abhiyan: An effort to universalise elementary education by community-ownership of the school system, and it aims at all children in the country completing eight years of elementary schooling by 2010. The scheme enviasages an important role of the state with decentralisation of powers to Village Education Committees/ Panchayats/ Urban local bodies. Under SSA, free textbooks given to all SC/ST boys upto class VIII, and all girls.

In this respect, through an act in 2004, an education cess at 2% on direct and indirect taxes was imposed, to provide ‘universalised, quality basic education.’

Mid-day meal scheme: Launched in 1996, it creates a captive consumer in the primary school child by giving one hot cooked meal to each student in school each day, intending “to give a boost to universalisation of primary education, by increasing enrolment, retention and attendance and simultaneously impacting on nutrition of students in primary classes”.

The government has tied up with the Food Council of India godowns to be able to provide 100 gms of wheat/rice per child. The results of this scheme are encouraging. Reports indicate that there is a direct relationship between the MDM and student retention.