Human Right to Education | Daily News

Human Right to Education

Part 2

The assignment of a fixed number of places to a minority group is not a necessary means towards achieving diversity, the Court stated. It was held that since the special programme at Davis totally excluded whites from a specific percentage of places while preferred applicants had the opportunity to compete for every place, it had to be struck down as violating the Equal Protection Clause. The four Judges who formed the minority on the question of the constitutionality of the special admission programme upheld Davi’s special programme. The programme, they said, did not operate to stigmatize or single out any discrete and insular, or even an unidenfiable, non-minority group. It did not establish an exclusive preserve for minority students. Its purpose was to overcome the effects of segregation by bringing the races together.

Although whites were excluded from the special programme, that only operated to reduce the number of whites to be admitted in the regular programme in order to permit admission of a reasonable percentage. (less than their proportion in California where Negroes and Chicknos made up 22% of the population) of otherwise under-represented, qualified minority applicants. The minority Judges took the view that the special programme was not unconstitutional merely because there was a pre-determined quota for disadvantaged minority applicants instead of using minority status as a positive factor to be considered in evaluating their applications. For purposes of constitutional adjudication, there is no difference between the two approaches. A determination of the degree of preference to be given to disadvantaged minorities is unavoidable and this depends on how many minority applicants a particular school is seeking to admit in a particular year as long as the number of qualified minority applicants exceeds that number.

Principle of Equality

Equality is a new frontier of judicial activism in Sri Lanka. The guarantees of equality provided by Article 12 of the Sri Lankan Constitution of 1978 to a considerable extent, resemble corresponding provisions in the Indian Constitution (Articles 14 and 15). The early phase of jurisprudence of the Supreme Court of Sri Lanka relating to equality revolved the traditional doctrine of reasonable classification mainly developed by the US Supreme Court.

In India, a new orientation has been given to Article 14 of the Indian Constitution (which corresponds to our Article 12) by the Supreme Court of India, the Supreme Court of India for the first time laid down in Royappa’s case in 1974 ‘a new dimension’ of Article 14. It was Justice Bhagwathi who first propounded this new doctrine. The claim was repeated in Maneka Gandhi v. Union of India (1978); Ramana v. International Airport Authority of India (1979); Ajay Hasia v. Khalid Mujib (1981). In Hasia’s case the claim was formulated thus;

“Equality is a dynamic concept with many aspects and dimensions and it cannot be cribbed, cabined and confined within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness”.

By embracing the new doctrine on equality evolved by the Indian Supreme Court, the Sri Lankan Supreme Court infused a new dimension to the guarantee of equal protection of the law by pronouncing that it embraces the right to public administrative justice to be free from a caprice of arbitrary executive or administrative action. Article 12 of the 1978 Constitution of Sri Lanka allows a reasonable classification. The grounds referred to in Article12 (2) cannot be a valid basis of classification. The Article specifically bars the State from discriminating against any citizen on any of those grounds. Article 12 (1) offers equality to all persons in which the right to equality is generally stated.

Equal opportunities through education.

Article 12 (2) specifies the institutionalised grounds on which discrimination against any citizen is prohibited, including race, religion, language caste, sex, political opinion, place of birth or any one of such grounds. Article 12(3) prohibits discrimination in the form of any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels, places of public entertainment, and places of public worship of a person’s own religion. Finally Article 12(4) permits ‘special provision being made by law, subordinate legislation or executive action, for the advancement of women, children or disabled person, On the other hand, Article 12 (2) is applicable to citizens only and therefore it is an instance and particular application of the right of equality which is generally stated in Article12 (1). If discrimination is alleged on a ground other than those specified in Article 12 (2), the case must be decided under the general Article 12 (1).

Right to Education and Constitution

Chapter III of the 1978 Constitution lists out a number of justiciable fundamental rights with an enforcement mechanism including right to equality, freedom of speech, and freedom from torture and so on. But not a word about education.

By Article 27(2) (h) of the 1978 Constitution under Chapter VI – Directive Principles of State Policy (DPSP) the State is pledged to “the complete eradication of illiteracy and the assurance to all persons of the right to universal and equal access to education at all levels”, but free education is not stipulated; not the right to non-State education. The content and quality of education is not stipulated, but Article 27(13) calls upon the State to ensure the “full development” of children and youth, and that must include education in its widest sense and of reasonable quality. However, Article 29 of 1978 Constitution provides that these DPSP do not create legal rights or obligations and are not enforceable in any court or tribunal, and that no question of inconsistency shall be raised in any court or tribunal. It follows from the above that the right to education is not a fundamental right justiciable under our present Constitution.

In our previous Constitution of 1972 Right relating to education was not mentioned either in its FR Chapter (VI) or its Chapter on Principles of State Policy (Chapter V), it is also noted here that the Constitution of 1972 does not even set out a mechanism to enforce Fundamental Rights.

Case Law (FR) from Sri Lanka

The following case law from Sri Lanka under our 1978 Constitution, illustrates the creative role of our Supreme Court in realizing the Human Right to Education despite the aforesaid defects in our constitution. Due to limited space a few cases are presented here in outline.

l R. Haputhantrige and Others v. Secretary, Ministry of Education and Others (2007) (Grade One Admission case)

An important unanimous judgement in the field of education was delivered by former Chief Justice SN Silva with Dissanayake J and Somawanse J agreeing in 2007. In the absence of the right to education as a fundamental right in our present Constitution, the Supreme Court applied the fundamental right to equality (Article 12 of the Constitution) as discussed above to prove the infringement of the child’s right to education by the education authorities of the State. The petitioners in this case alleged infringements of their fundamental rights guaranteed by Article 12(1) of the 1978 Constitution, seeking an order for admission of their children to respective schools.

The alleged infringements were in respect of the refusal to admit the several children named in the petitions to Grade I of respective National Schools. The allegations have related to unequal, arbitrary and capricious application of the relevant circulars resulting in less suited children securing admission to the detriment of the children who have been thereby compelled to invoke the jurisdiction of the Supreme Court. The underlying cause of this pervasive malady is the ever increasing demand for admission to the leading schools in Colombo and other principal cities administratively designated as National Schools within the purview of the Central Government. The response of the authorities to this classic situation of a gross mismatch in supply and demand has been to narrow down, through an intricate system of criteria contained in circulars, the area that would feed a particular school described in the circular as the ‘feeder area’ of the school.

The petitioners made applications for the admission of their respective children to the Sujatha Vidyalaya, Matara on the basis of Circular No. 20 of 2006 dated 23.05.2006 issued by the 10th Respondent, being the Secretary of Ministry of Education, titled ‘Admission of Children to Schools’. Petitioners admittedly reside within close proximity of the Sujatha Vidyalaya and their common complaint was that on the elaborate system of assigning marks they in fact received sufficient marks to secure admission of their children. However, 30 other children, residing further away secured admission depriving Petitioners’ children of their due places in view of a decision of the Respondents to assign 15 marks to each child who was born at the Matara Hospital. The Petitioner’s children were born outside Matara Hospital in the rural hospitals in the native places of their mothers as a traditional custom. As a result Petitioners’ children fell below the cut-off point giving an undue advantage to children who were born in the Matara Hospital.

The Supreme Court examined the grounds urged from the ambit of the fundamental right to equality guaranteed by Article 12(1) of the 1978 Constitution. As noted by the Supreme Court, the law in its primary sense of an Ordinance or Enactment of the legislature related to Education is contained in the Education Ordinance originally proclaimed in 1939, prior to the granting of independence. According to the Supreme Court a perusal of the provisions of the Ordinance reveals that these provisions have mostly fallen into disuse. A similar observation was made by the Court as regards the exhaustive regulations that have been made under the Ordinance. Here the regulations referred to those in operation at the time of the judgement. The Education Ordinance established the Department of the Education as the central authority for education which function under the general direction and control of the Minister.

As noted by the Supreme Court in the judgement, the 13th Amendment to the Constitution, inter alia provides for the devolution of power to Provincial Councils. In terms of section 3 of List 1 in the 9th Schedule to the 13th Amendment, ‘Education and Educational Services’ to the extent set out in Appendix III are devolved to Provincial Councils. Section 1 of Appendix 111 states that the provision of facilities to all State schools other than specified schools shall be the responsibility of the Provincial Council. It is therefore provided that specified schools will be ‘National Schools’. The concept of national schools derives solely from its single reference to it in Appendix III. Almost all leading government schools have been declared as being ‘National Schools’. According to the Supreme Court, the Education Ordinance has not been amended to provide for the newly emerged situation and there is no specific law that is operative as regards National Schools or for that matter.

The Supreme Court examined the content of the right to equality in order to form a basis to judge the alleged infringement in this case. Accordingly, the Supreme Court referred to the renowned exponent of Socialism, Harold Laski (A Grammer of Politics), Justice C. G. Weeramantry and the Judgement of Brewer J., sums up the concept of equality and the manner in which the equal protection of law applies, as follows:

‘Equality, as Laski stated, does not mean identity of treatment. There can be no ultimate identity of treatment so long as men are different in want and capacity and need. Men are unequal in strength, talent and other attributes. While some of these are natural, others are referable to the society in which they live. Some are born with advantages. Other factors and combinations of factors may favour some people and place others at a disadvantage. To quote Weeramantry:

As the myriads of constituent units of a society keep thus shifting their positions relative to each other, absolute equality among (men) even in one characteristic of for a moment of time is patently an impossibility. Far greater is the impossibility of preserving general equality for any period, however short. A permanent state of equality is only the remotest dream.’

Equal protection does not mean that all persons are to be treated alike in all circumstances. It means that persons who are similarly circumstanced must be similarly treated. The State is however permitted to make laws that are unequal and to take unequal administrative action when dealing with persons who are placed in different circumstances and situations. Thus the State has the right to classify persons and place those who are substantially similar under the same rule of law while applying different rules to persons differently situated. A classification should not be irrational or arbitrary. It must be reasonable and based on some real and substantial distinction, which bears a reasonable and just relation to the act in respect of which the classification is proposed can never be made arbitrary and without any such basis.’

(The writer is a retired Professor in Law in the University of Sri Jayawardenepura. He is an Attorney-at-Law and practiced in Courts with PhD in law)

To be continued

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