Promotion of particular religion by private schools defies the secular character of the constitution: Kerala HC

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On 24th January 2020, while disposing the writ petition filed by private school that imparts religious education exclusively following Islamic religious instruction, the Kerala High Court ruled that no private school that require recognition from the state shall impart religious instruction of one particular religion exclusively over other religions. The court further ruled that any private schools in order to impart religious instruction based on religious pluralism should obtain permission from the government which will consider the same on case to case basis.

Brief Facts:

The petitioner herein is a trustee that imparts education under the name and style of ‘Hidaya educational and charitable trust’. This school was found to have admitted 200 students who are exclusively from Muslim community and had imparted religious instructions of Islam community exclusively over the other religion. The said school neither possessed government recognition or affiliation to CBSE board. The state, based on the intelligence report issued closure order which was duly acted upon by the Deputy Director of Education, Trivandrum who issued the order in dispute.

The Deputy Director of Education before issuing the order of closure inspected the premises. During the inspection it was observed that the syllabus followed by the school was according to the curriculum prescribed by the Millet Foundation Education Research and Development (MFERD). The said MFERD is a registered trust having its office at Telengana, Hyderabad. It is a non-profit organisation established with a view to provide “ Common platform to Muslim Educational Institutions for sharing, networking, co-coordinating and co-operating among themselves, thereby complimenting the efforts of individuals, professionals and organisations in achieving excellence in the field of education within the boundaries of Islamic Shariah”

The court observed that Article 28(3) of Indian Constitution provides for educational institutions having state recognition or receiving state funds to impart religious instructions to minor students with the consent of the guardian. However this does not permits any educational institution to impart religious study of one particular religion excluding the other religions. This has been the case before declaring right to education as a fundamental right. However examining the current situation where right to education is declared as a fundamental right under article 21-A, it can be said that any private schools that impart elementary education is performing a public function and hence the public functionaries cannot adopt actions that are not in consonance with the basic features of the constitution.

The court further observed that the right provided to minorities under Article 25, Article 29 and Article 30 that allows them to establish and administer educational institution also includes the right of choice of education. However the same is subjected to the restriction that it cannot dilute the secular nature of education which forms the basis of the constitution of India.

The court further stated that under section 29 of the Right to Education Act, it is mandatory that the curriculum and the evaluation procedures adopted by the schools must be as laid down by the specified authority. The specified authority under the act is the state government and hence to impart religious instructions by the schools require the permission of the state government. Such religious instructions must be based on the religious pluralism which is not prohibited under the constitution.

Key features:

1. The court observed that no educational institution that requires state recognition shall impart religious study of a particular religion exclusively.

2. It further observed that the constitution of India does not prohibit religious education which is based on the religious pluralism wherein it prohibits religious exclusivism.

3. The court pointed out that secularism is one of the pillars of the constitution and hence the public functionaries cannot adopt measures that defy secularism.

4. The court stated that educational institutions imparting religious instructions must obtain permission from the state government.

5. The court observed that after the amendment of constitution that includes right to education as fundamental right under Article 21-A, private schools imparting elementary education discharges public function and hence the virtues of constitutional moralities are to be followed.

In the present case the court observed that the petitioner has imparted religious study of Islam religion excluding other religions which is against secularism and hence the action of the state was held to be appropriate. However the court stated that an opportunity can be given to the petitioner to desist from imparting religious study without the permission of the government. The court further directed the Secretary of General education Department to issue a general G.O. to all recognized private schools ordering not to impart religious instructions without the permission of the government. The government can initiate action for issuing closure order to the schools including the petitioner if found to violate the above order.   

Edited by J. Madonna Jephi

Approved & Published – Sakshi Raje

End Notes:

1. The Trustee, Hidaya educational and charitable trust vs. State of Kerala and others, Kerala High Court, W.P. (C) No. 25006 of 2017, dated 24/01/2020

2. Bar and Bench, Promotion of particular religion by private schools defies the secular character of the constitution: Kerala HC, (last visited on 25th January, 2020)

3. Schools Which Require Govt Recognition Cannot Impart Religious Studies Of One Religion Exclusively In Preference To Others: Kerala HC (last Visited on 25th January, 2020)