New Education Policy to become more clear when it becomes a law

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The Union Cabinet has approved a new education policy that will lead to revolutionary changes in the field of education. The policy will provide more clarity when it becomes a law.

As primary education is on the state list and higher education is on the central list, Parliament can enact legislation to implement the new policy.

The policy intends to promote the private sector in education. In the TMA Pai case, the Supreme Court made it clear that the government can impose restrictions on educational institutions run by charitable organisations to ensure they provide quality education without indulging in profiteering. 

The new education policy says it will prevent education from becoming a business.

Those in charge of higher education institutions will be free to make appointments and make administrative decisions without political or external interference. The government cannot intervene except to ensure that qualified people are appointed. It ensures the autonomy of institutions, including those of minorities. 

It is noteworthy that the new education policy excludes the terms 'secular' and 'secularism'. The question is whether this will lead to infringement of the rights guaranteed by Articles 29 and 30 of the Constitution.

In the case of Keshavananda Bharathi, the Supreme Court has stated that minority rights are the basic structure of the Constitution and cannot be watered down by means of amendments. It helps minorities to preserve and nurture their identity through their educational institutions. The court has intervened whenever the legislature or the government has infringed on these rights.

This is made clear in the provisions of the Kerala Education Bill and the Right to Education Act, 2009. The new policy states that the Right to Education Act will be subjected to a comprehensive review and improved based on the experience of the last decade. It also states that the Act will be reviewed to ensure quality education — from pre-school to class 12 — for all students from the backward and vulnerable sections of society.

Any attempt to bring minorities under the purview of the Right to Education Act is sure to lead to a fierce legal battle. The Right to Education Act was passed in accordance with Article 21A 15 (5) of the Constitution. Article 21A stipulates that the government must provide compulsory education to all children between the ages of 6 and 14. According to the Right to Education Act, schools are obliged to provide compulsory primary education to all children.

Primary education covers class I to the 8th grade. A constitutional amendment would be required to extend this beyond class 8.

In 2014, the Supreme Court had ruled in the Pramati Educational and Cultural Trust case that minority institutions were exempt from the scope of the Right to Education Act. The court also ruled that the Right to Education Act could not be applied to minority institutions by amending the Constitution.

The new education policy says that education should be in the mother tongue wherever possible up to at least grade V. It is not clear whether this is mandatory.

If it is made mandatory, it would infringe on the right of students (21a) and the management of the education institutions 30 (1) to select the medium of studies. 

Therefore, any legislation to implement the new education policy of 2020 must comply with the provisions of the Constitution.

(The author is a Supreme Court advocate)

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