The Right of Children to Free and Compulsory Education Act, 2009 does not merely guarantee a right to admission and be educated in a school. It also guarantees against expulsion from school. Indeed, the right not to be expelled is a logical extension of the fundamental right to education. The act states in express terms that a child shall not be expelled from school till the completion of elementary education (Section 16) and shall not be subjected to physical punishment or mental harassment (Section 17). If compulsory education is targeted to weaker sections and disadvantaged groups, the right against expulsion shall be targeted for every child, whether he or she belongs to weaker sections or the disadvantaged. Two recent examples have brought this issue into focus. In one case, the child took her life through suicide after she was expelled from school, and when the state ordered an investigation, it was to ensure that such incidents did not happen in the future. In yet another case, all was not lost; an order of injunction by the high court against compulsory expulsion saved the day — and so too, the children's immediate future, when the school made mandatory the payment of tuition fees in one lump sum per term and refused to receive monthly payment with a threat of expulsion. We have lessons to learn from both.
In Mohini Jain (Ms) v State of Karnataka (1992), the Supreme Court for the first time expounded the right to education as a fundamental right. It arrived at this result through the constitutional exordium of justice, liberty and equality; referred to Article 21 of the Constitution that guarantees the right to life, which ought to include right to dignified life; and made use of the Directive Principles of State Policy in its endeavour to secure to its citizens free and compulsory education. In Unnikrishnan (1993), the court again gave an interesting dimension to the fundamental right to education as being available even against a private institution but took a beating in T.M.A. Pai (2002), insofar as the latter judgment recognised a greater autonomy for privately-run educational institutions. In P.A. Inamdar (2005), the Supreme Court said that unaided institutions (both minority and non-minority) could claim an unfettered fundamental right to choose the students for admission, subject to the procedure being fair, transparent and non-exploitative.
Hitherto, attention has always been on admission to colleges for students and the right to establish and administer colleges and the extent to which state intervention is possible in the context of the right to education. There was but one occasion in Bijoe Emmanuel (1986) when three students, who being Jehovah's Witnesses conscientiously objected to being compelled to sing national anthem, were expelled by virtue of administrative instructions from the state's educational authority. The SC intervened on behalf of the students by striking down the expulsion order and directing re-admission into their school. The court added that "our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practices tolerance; let us not dilute it."
A child should never be faced with a prospect of being turned out of school even for non-payment of tuition. The fee shall only be taken as a debt to a school, which could be enforced as any other financial obligation. The right of enforcement, could, if at all, be protected as a first charge against the assets of the parent. Should an errant behaviour of a minor student be a ground for expulsion? The Juvenile Justice (Care and Protection of Children) Act, 2000, known as the JJ Act, provides for temporary care and custody of children who are in conflict with the law. A child that may have to be removed for extraordinary reasons of commission of offences shall be restored to mainstream schools as soon as favourable reports come in from monitoring agencies. The JJ Act already contains a provision for the parents' participation in sharing expenses for the maintenance of children for running children's homes — and, in case of indigent parents, requires the state to extend assistance. Will it not be apposite that the provision is amended suitably to cover also a situation of a parent not being able to afford continuation of education of children due to change in circumstances, such as loss of job for a parent or other causes of impoverishment?
A school that expels a student shall be made to do so at the peril of withdrawal of recognition and state grants, by suitable amendments to the respective state regulatory legislation for administering private schools. Even without legislative changes, the right to education, if it is seen as a fundamental right and what is more, a human right, expulsion of student from any school, for any reason whatever, shall soon be a forgotten expression.
K. Kannan
The writer is a judge at the Punjab and Haryana high court, Chandigarh
express@expressindia.com
