Private school is entitled to impart religious instruction or study based on religious pluralism

Harshit Sharma | Amity Law School, Madhya Pradesh | 28th January 2020

The Trustee, Hidaya Educational & Charitable Trust V/s. State of Kerala & Ors. WP(C). No. 25006 OF 2017(A)

FACTS OF THE CASE

1. The present writ petition filed is by a private unaided school, imparting elementary education, challenging the State’s action of closing down the school on the premise that it promotes exclusive religious instruction and admits only students from one particular community thereby posing threat to the secular fabric of society.
2. The school is alleged to be functioning without Government recognition or CBSE affiliation and have admitted more than 200 students, all of them adherents to Islam. The State Government acting on intelligence report issued order of closure. The State Government noted that admission was being given exclusively to children belonging to one particular community. 
3. The inspection showed that the curriculum which the school follows is in line with that of MFERD which clearly showed that apart from achieving excellence in temporal education, an attempt is made to promote the individual identity of the pupil based on Islamic Shariah which would necessarily be possible only by imparting religious instruction in institutions.

ISSUES RAISED

1. Do private unaided schools which require State recognition have the right to promote a particular religion to the exclusion of other religions while imparting elementary education?
2. Did our Constitution conceive elementary education tightened within the boundaries of schools segregated on communal line slipping into the position dismantled in Brown v. Board of Education of Topeka, [347 U.S. 483]?
3. Does the word ‘secular’ in the Preamble denote the character of polity alone?

RULING OF THE COURT/ THE COURT HELD THAT

While disposing the present writ petition, the Hon’ble Court has observed the following findings and following directions have been made: 

1. “Under Article 28(1) of the Constitution, there is a complete embargo on educational institutions wholly made out of State funds, imparting religious instruction. However, our Constitution allows educational institutions having State recognition or funds from the State to give religious instruction with the consent of guardian [Article 28(3)]. This enables educational institutions to give religious instruction to minor students with the consent of the guardian. It has to be kept in mind that this enabling clause existed in the constitution at a time when elementary education was not declared as a fundamental right.”
2. “The Hon’ble Supreme Court in Ms.Aruna Roy and Others v. Union of India and Others [(2002) 7 SCC 368] did not negate religious education based on religious pluralism but it cautioned against religious education based on religious exclusivism. There exists a substantial distinction between religious instruction and religious study. The embargo in the Constitution is on educational institutions imparting religious instruction. There is no embargo on educational institutions imparting religious study in the Constitution.”
3. “Exclusivism or preference of one religion over others by State or public functionaries or private bodies, while discharging public functions, strikes at the very root of the fundamental values of our Constitution, namely, secularism. It negates neutrality, promotes discrimination and denies equal treatment. Private schools which are required to have recognition from State must not promote one religion over others. The exclusive promotion of a particular religion by private educational institutions defies the secular character of the Constitution and denies constitutional value and morality. An individual or a group or a denomination have the freedom to express and to promote and practice their religion. That freedom is not available to a private body while discharging a public function. In a pluralist society like India, which accepts secularism as the basic norm in governing secular activities including education, there cannot be any difficulty in imparting religious instruction or study based on religious pluralism.”
4. “This issue has to be examined in yet another perspective. The RTE Act was enacted by the parliament after the insertion of Article 21A in the Constitution. Under Section 29, the Act mandates that the curriculum and evaluation procedure should be as laid down by the appropriate authority to be specified by the government and Appropriate authority, per u/s.  2(a)(ii)(A) within the State, is the State Government. In such circumstances, no school shall impart any religious instruction or religious study without permission from the State Government.” 
5. “…this Court is of the view that an opportunity should be given to the petitioner to desist from imparting religious instructions or study without permission from the Government. To this effect, the Secretary of General Education Department is directed to issue a general government order directing all recognised private schools in the State to desist from imparting religious instruction or religious study without permission from the Government.”