Regulation of Education not permissible by Executive Fiat, Supreme Court [Read Judgment]
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Regulation of Education not permissible by Executive Fiat, Supreme Court [Read Judgment]

Meera Emmanuel

The Kerala government’s move to impose additional restrictions against the ‘mushrooming’ of CBSE-affiliated schools in the state was cut short by the Supreme Court today, when it struck down certain guidelines issued to this effect by Kerala in 2011.

In doing so, the Court has also sent a message that the State cannot regulate education by merely issuing arbitrary executive fiats.

The Bench of Justices Madan B Lokur and Deepak Gupta passed the verdict in special leave petitions filed by the Kerala against the High Court’s decision in the case.

Case history

As per the CBSE by-laws, in order to obtain affiliation under the Board, applicant schools are required to obtain a No Objection Certificate (NOC) from the State government.

Following challenges made to guidelines issued in June 2007, the Kerala government eventually issued new guidelines limiting consideration of applications for grant of an NOC in October 2011.

Three of the newly proposed guidelines were challenged before the Single Bench of the Kerala High Court. Eventually, the Division Bench of the High Court struck down two of the challenged guidelines in 2012. Challenging this verdict, the Kerala government approached the Supreme Court.

The two rules examined by the Supreme Court in the instant appeal related to the area required to be covered by the school seeking affiliation and student intake.

One rule required that a school seeking an NOC for affiliation to the CBSE must have 3 acres of land, out of which 2 acres should be contiguous and in the actual location of the school (minimum area rule). The other rule in question required, inter alia, that the school should have at least 300 students enrolled (student intake rule).

The Supreme Court expressed its disdain for the appeals filed by the Kerala Government at the outset itself, when it remarked,

The fundamental right to free and compulsory education to all children between the age of 6 and 14 years postulates good quality education and not just education for the sake of providing education.

Regulation of such education is permissible by law and not by executive fiat

Unfortunately, in this batch of petitions, the State of Kerala seeks to impose its authority over schools that provide apparently quality education, which is perceived to be a threat to the public education system in the State.

Rigid, impracticable stance of the Kerala Government

The Bench noted that the restrictions imposed by the Kerala government to regulate schools in the State were impractically rigid. This was in contrast to the CBSE’s approach, which was pragmatic and realistic.

In particular, referring to the minimum area rule, the Court noted that schools may cover different areas depending on its location. Whereas the CBSE takes such factors into account in prescribing the minimum area to be covered by the school, no such flexibility is provided for by the Kerala government. Rather, the Court noted,

It appears to us that the rigid requirement of Kerala indicates that it is imposed upon the schools that seek affiliation with the CBSE only with a view to unnecessarily burden them with an onerous and arbitrary condition, since Kerala believes it has the authority to do so.”

No rational basis for the guidelines in question

On the student intake rule, it was noted that the High Court in Queen Mary Public School v. State of Kerala has previously struck down a similar requirement mandating 500 students on the rolls for affiliation of schools for being irrational and contrary to the CBSE Affiliation By-laws. Applying the same logic, the Court opined that in this case as well, the guideline was merely an unwarranted imposition on school managements.

The Court observed that there was no basis given to indicate that the minimum student intake would have any effect on the quality of education.

We do not see how, if the number of students is less than 300, it will detract from the quality of education imparted to the students … the requirement of a minimum strength of 300 students is a completely arbitrary is a completely arbitrary figure arrived at by Kerala and which has no rational nexus with quality education or the CBSE Affiliation Bye-laws.“

The Court also noted that this guideline would set impossible goals for schools which complied with the mandate of the Right to Education Act.

The Right of Children to Free and Compulsory Education Act, 2009 (the RTE Act) requires a student-teacher ratio of 30:1. A school having 30 children in one class and having one division will have only 180 students upto and including Standard VI. Such a school cannot, therefore, obtain provisional affiliation for secondary or senior secondary classes.

Actually, such a school would not be eligible for affiliation till Standard X when it has 300 students – and it can never reach that stage since Standard IX and X can be started only if the school has CBSE affiliation. Kerala is, therefore, expecting an impossibility from such schools that strictly conform to the provisions of the RTE Act.

The State has not complied with its own guidelines

The Court had directed that the State government to furnish information as to the number of government schools that do not comply with the guidelines issued in October, 2011. However, in response, Kerala filed an evasive affidavit to the effect that since the guidelines do not apply to such schools, there is no compulsion on such schools to comply with them.

On this apparent double standard, the Court remarked,

This is remarkable – guidelines are framed by Kerala for application by schools other than those run by the State Government or aided by the State Government or affiliated with the State Board. There is no reason given for this distinction drawn by Kerala which appears to be completely arbitrary.

Who benefits from the restrictions?

On the whole, the Court found that the only reason offered by the state to issue the said guidelines was that it has the authority to make such a prescription. On this argument, the Court responded,

While this may be so, the requirement must have some rational basis but we are unable to find any such rational basis.

Even in the counter affidavit filed before the learned Single Judge it is stated by Kerala that restrictions have been placed on CBSE schools to prevent their mushrooming growth which would affect the public education system in the State. No details have been given for arriving at this conclusion.

The Court also observed that the so called ‘mushroom growth of CBSE schools’ may indicate that the state-managed public education system leaves something to be desired in terms of the quality of the education. Given this possibility, the Court queried,

How does the restriction imposed by Kerala benefit the children of the State?

Given these reasons, the Court has dismissed the Kerala government’s appeal, in effect striking down the restrictive guidelines for CBSE affiliation.

It can be noted that one of the guidelines also required that Unique Identity enrolment (UID/Aadhaar enrolment) be completed in order to be eligible for affiliation. However, the Court did not make a decision on this aspect given that a Constitution Bench of the Court is yet to decide on the Constitutionality of the Aadhaar scheme itself.

Read the judgment below.

Supreme-Court-Kerala-Govt-CBSE-affiliation-May-2-2018.pdf
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