Ker HC | No elementary schools imparting secular education can promote one religion over others

Kerala High Court: A. Muhamed Mustaque, J., dismissed a petition filed by a private unaided school, imparting elementary education, challenging the State’s order of closure of 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.

The instant case at hand, poses an issue of seminal importance, wherein the question that arises is,

“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?”

It has been alleged that the above-mentioned school is functioning without Government recognition or CBSE affiliation and all the students that have been admitted are adherents to Islam.

State Government on noting that the admission in the above school was being provided to only one community and therefore, the order for closure of the school was issued after an inspection. During the inspection it was observed that the syllabus was in accordance to the curriculum prescribed by Millet Foundation Education Research and Development, the presentation on the website of the said foundation clearly states 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.”

High Court’s Analysis

Under Article 28(1) of the Constitution of India, 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 the guardian.

In accordance with the above, educational institutions are enabled to give religious instruction to minor students with the consent of the guardian. This enabling clause existed in the constitution at a time when elementary education was not declared as a fundamental right. The said clause does not enable schools to give religious instruction of one religion to the exclusion of other religions.

Supreme Court’s Judgment in Aruna Roy v. Union of India, (2002) 7 SCC 368, the Apex Court did not negate religious education based on religious pluralism but it cautioned against religious education based on religious exclusivism.

There is no embargo on educational institutions imparting religious study in the Constitution. Exclusivism in religious study, if promoted by educational institutions will, therefore, have to be tested against the backdrop of the secularist ideal of Constitution.

Further, the Court noted that,

Secularism is part of the wheel that has to drive political democracy in India. Justice Dr D.Y. Chandrachud in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, “spoke about the transformative character of Constitution as guiding factor of constitutional morality.”

Constitutional morality requires that all the citizens need to have a closer look at, understand and imbibe the broad values of the Constitution, which are based on liberty, equality and fraternity. Constitutional morality is thus the guiding spirit to achieve the transformation which, above all, the Constitution seeks to achieve.”

 “Secularism has value in the Constitution as an acknowledgment of the past and as a guide to future generation.”

 Secularism is against the very idea of exclusivism of one religion over others.

Court further noted that, in a multi-religious and multi-cultural society, the students need an educational system that equips them to acknowledge and accept diversity in society. Multi cultural education must reflect upon coexistence for mutual benefit and the nation’s benefit. It must focus on the reduction of prejudices, bias and promotion of democratic values.

Multi cultural education in practice focuses on equity pedagogy by structuring school syllabus, accepting diversity of all in equal measure.

In a secular democratic State, no institution can survive unless the institution follows the virtues of constitutional morality. The idea of secularism in the Constitution is the result of the acceptance of the character of a pluralist society composed by people having diverse interests.

Recognition that is required from the State Government under the RTE Act is for imparting secular education.

Adding to the above, the Court stated that the Constitution does not allow the mixing of secular activities with religious activities.

Referring to the Supreme Court Case, S.R. Bommai v. Union of India, (1994) 3 SCC 1, wherein it was held that,

“…mixing up of religion with secular activities, is only based on the broad policy of equal treatment of all religion and maintaining neutrality of public functionaries.”

In regard to the liberty given to parents to choose the value and type p education to be imparted to their child, Court stated that, though the Constitution protects the said liberty, the State has not lost its power to regulate the curriculum of education to ensure guidance in the making of true citizens on the foundation of ideals of Constitution.

Supreme Court in Santosh Singh v. Union of India, (2016) 8 SCC 253, referred to education as an important instrument towards the development of the individual as well as an instrument in nation-building. It is further opined that the acceptance of plurality and diversity of ideas, images, and faith is a result of education.

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.

High Court stated that, Private Schools that are required to have recognition from State must not promote one religion over others.

“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. What is prohibited is exclusivism.”

Court stated the following with respect to the minority institutions,

“minority institutions cannot shrug off their role as State Functionaries and protect sectarian education under the garb of Articles 29 and 30.”

“If minority institutions are given free hand to promote religion, it would result in denial of admission to such schools based on religion.”

What the Court held?

High Court does not denounce value education moulded on the basis of religious instruction or study. Religious instruction or study is capable of moulding value-based education.

No elementary schools imparting secular education can promote one religion over others.

Thus, it would be open to any private unaided educational institution to approach the Government for permission to impart religious education or instruction based on religious pluralism.

In the present case, the petitioner is imparting religious instruction exclusively following the Islamic religion which cannot be permitted. It offends the fabric of secular society; hence the order of closure of the school is justified. [Trustee, Hidaya Educational & Charitable Trust v. State of Kerala, 2020 SCC OnLine Ker 312, decided on 24-01-2020]

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