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 underrepresentedâ€. 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 educationâ€. 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 organismâ€.
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)
