STATE OF KERALA Vs. SCHEDULED CASTE SCHEDULED TRIBE

JUDGEMENT

(1.) TEN years before the Parliament decided to include Right to Education as a fundamental right under Part III of the Constitution of India by introducing Article 21a through the Constitution (86th Amendment) Act, 2002, the Supreme Court had considered the scope of right to education in the Indian context in the decision of Mohini Jain (Miss) v. State of Karnataka and others, reported in (1992) 3 SCC 666. In that case, the Supreme Court inter alia considered the question as to whether there is a "right to education guaranteed to the people of India under the Constitution" and held as follows in respect of that issue: "6. In order to appreciate the first point posed by us it is necessary to refer to various provisions of the Constitution of India. The Preamble promises to secure to all citizens of India "justice, social, economic and political" and "liberty of thought, expression, belief,faith and worship". It further provides "equality of status and of opportunity" and assures dignity of the individual. Articles 21, 38, 39 (a) and (f), 41 and 45 of the Constitution are reproduced hereunder: "21. Protection of life and personal liberty:- No person shall be deprived of his life or personal liberty except according to procedure established by law. 38. State to secure a social order for the promotion of welfare of the people:- (1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. (2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. 39. Certain principles of policy to be followed by the state: - The State shall, in particular, direct its policy towards securing-- (a) that the citizens, men and women equally, have the right to an adequate means of livelihood. xx xx xx (f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. 41. Right to work, to education and to public assistance in certain cases:- The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other areas of undeserved want. 45. Provision for free and compulsory education for children:- The State shall endeavour to provide within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years. " 7. It is no doubt correct that "right to education" as such has not been guaranteed as a fundamental right under part III of the Constitution but reading the above-quoted provisions cumulatively it becomes clear that the framers of the Constitution made it obligatory for the State to provide education for its citizens. 8. The Preamble promises to secure justice 'social, economic and political' for the citizens. A peculiar feature of the Indian constitution is that it combines social and economic right along with political and justifiable legal rights. The Preamble embodies the goal which the State has to achieve in order to establish social justice and to make the masses free in the positive sense. The securing of social justice has been specifically enjoined an object of the State under Article 38 of the Constitution. Can the objective which has been so prominently pronounced in the Preamble and Article 38 of the Constitution be achieved without providing education to the large majority of citizen who are illiterate. The objectives flowing from the preamble cannot be achieved and shall remain on paper unless the people in this country are educated. The three-pronged justice promised by the Preamble is only an illusion to the teaming millions who are illiterate. It is only education which equips a citizen to participate in achieving the objectives enshrined in the preamble. The Preamble further assures the dignity of the individual. The constitution seeks to achieve this object by guaranteeing fundamental rights to each individual which he can enforce through court of law if necessary. The directive Principles in Part IV of the Constitution are also with the same objective. The dignity of man is inviolable. It is the duty of the State to respect and protect the same. It is primarily education which brings forth the dignity of a man. The framers of the Constitution were aware that more than seventy per cent of the people, to whom they were giving the Constitution of india, were illiterate. They were also hopeful that within a period of ten years illiteracy would be wiped out from the country. It was with that hope that Articles 41 and 45 were brought in Chapter IV of the Constitution. An individual cannot be assured of human dignity unless his personality is developed and the only way to do that is to educate him. This is why the universal Declaration of Human Rights 1948 emphasises: "education shall be directed to the full development of the human personality. . . . . " article 41 in Chapter IV of the Constitution recognises an individual's right "to education". It says that "the State shall, within the limits of its economic capacity and development, make effective provision for securing the right. . . to education. . . . . " Although a citizen cannot enforce the Directive Principles contained in Chapter IV of the Constitution but these were not intended to be mere pious declarations. We may quote the words of Dr. Ambedkar in that respect: "in Enacting this Part of the Constitution, the assembly is giving certain directions to the future legislature and the future executive to show in what manner they are to exercise the legislative legislative and the executive power they will have. Surely it is not the intention to introduce in this Part these principles as mere pious declarations. It is the intention of the Assembly that in future both the legislature and the executive should not merely pay lip service to these principles but that they should be made the basis of all legislative and executive action that they may be taking hereafter in the matter of the governance of the country. " 9. The directive principles which are fundamental in the governance of the country cannot be isolated from the fundamental rights guaranteed under Part III. These principles have to be read into the fundamental rights. Both are supplementary to each other. The State is under a constitutional mandate to create conditions in which the fundamental rights guaranteed to the individuals under Part III could be enjoyed by all. Without making "right to education" under Article 41 of the Constitution a reality the fundamental rights under Chapter III shall remain beyond the reach of large majority which is illiterate. xx xx xx 12. "right to life" is the compendious expression for all those rights which the courts must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. The right to education flows directly from right to life. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to make endeavour to provide educational facilities at all levels to its citizens. 13. The fundamental rights guaranteed under Part III of the Constitution of India including the right to freedom of speech and expression and other rights under Article 19 cannot be appreciated and fully enjoyed unless a citizen is educated and is conscious of his individualistic dignity. 14. The "right to education" therefore, is concomitant to the fundamental rights enshrined under Part III of the constitution. The State is under a constitutional mandate to provide educational institutions at all levels for the benefit of the citizens. The educational institutions must function to the best advantage of the citizens. Opportunity to acquire education cannot be confined to the richer section of the society. . . . . . " As is clear from the above judgment, even prior to the introduction of Article 21a in the Constitution of India, although the right to education was only a Directive Principle of State Policy included in Articles 41 and 45 of the Constitution of India, the Supreme Court held that right to education is concomitant to the fundamental rights enshrined under Part III of the Constitution. By the above said Constitution Amendment Act, right to education has been expressly made a fundamental right by introducing Article 21a in Part III of the Constitution of India. Article 21a reads thus: "21a. Right to education:- The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. "

(2.) SINCE, in these cases, another Directive Principle of state Policy also comes into play, we shall extract that also hereunder before discussing the issues involved. The same is contained in Article 46, which reads thus: "46. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections:- The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. "

(3.) ORIGINALLY, the appellant-State contested the writ petitions on two grounds. They are: (a) Sanctioning of a new school or upgradation of an existing one is dependent on the policy decision of the government and such a decision has not been taken so far by the Government. (b)There is no provision in the Kerala Educational Rules to sanction a school directly to a person and a trust and the same can be sanctioned only after issuance of a notification calling for objections. At that time, it was practically conceded by the Government that there was educational need in Ward no. V of Pulimath Panchayath and the area in question is educationally, socially and economically backward as the area is mostly inhabited by scheduled caste families and there is a tribal colony spread over 900 acres in the said area. The learned Single Judge, after noting that the educational need of the locality is conceded and that the area is a socially and educationally backward area, repelled the contentions of the State regarding the Government policy and want of necessity to comply with the procedure prescribed under the Kerala education Rules. Thereafter, the State filed two review petitions taking a new stand that there is no educational need, based upon two reports obtained after the passing of the judgment by the learned Single Judge. The said review petitions, namely, R. P. Nos. 410 and 404 of 2006 in W. P (C) Nos. 6636/2006 and 6706/2006, respectively were also dismissed by the learned Single Judge. It is under the above said circumstances that the State has filed these writ appeals against the said common judgment in the two writ petitions.