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

The Kerala High Court has held that private educational institutions that require recognition from the state government cannot impart instruction with respect to one religion exclusively, in preference to others.

The Court has also held that such schools may impart religious study on the basis of religious pluralism.

The judgment rendered by Justice Muhamed Mustaque also contains several interesting observations on the concept of secularism and the role of public functionaries or private bodies performing a state function adhering to the same. It states,

The Court was hearing a writ petition filed by a school that was closed down by the state government on the premise that it promoted exclusive religious instruction. Further, the school was found to have admitted only students from the Muslim community.

The question before the Court was whether private unaided schools that require State recognition have the right to promote a particular religion to the exclusion of other religions.

Article 28 and Religious Instruction

The Court noted that under Article 28(1) of the Constitution, educational institutions wholly maintained out of State funds cannot impart religious instruction. However, as per Article 28(3), educational institutions having State recognition or funds from the State can give religious instruction with the consent of guardian of the child.

However, the Court noted that this enabling clause existed before elementary education was recognised as fundamental right under Article 21A of the Constitution. The Court also observed this does not enable schools to give religious instruction of one religion to the exclusion of other religions. The Court went on to make a distinction between mere religious study and exclusive religious instruction.

“The embargo in the Constitution is on educational institutions imparting religious instruction. 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. The Constitution nowhere permits to impart exclusive religious instruction or study.”

Moreover it was noted that though the parents of a child may seek a curriculum based on personal choices related to their religion, the State cannot provide sectarian religious choices in a multi religious society.

“The parents' right must, therefore, reconcile with the State's perspective of religious pluralism in imparting education.”

Secularism and Constitutional Morality

Justice Mustaque also makes pertinent observations regarding the concept of secularism in the Indian Constitution.

“Secularism is part of the wheel that has to drive political democracy in India. It is one of the pillars on which the edifice of India was built under the constitution. Secularism as a value is interconnected with many other values that constitute the morality of the Constitution in a liberal democracy.”

He goes on to cite Justice DY Chandrachud’s judgment in the Navtej Johar case, and adds,

Duty of public functionaries to uphold Secularism

The Court notes that in a secular democratic State, no institution can survive unless the institution follows the virtues of constitutional morality. While individuals are free to promote and propagate their faith under Article 25, the government cannot do so, lest it violate Article 14. The judgment states,

“An individual or a religious denomination has the liberty to follow his own identity based on belief or faith and also to protect the same under Article 25. However, the same activity or promotion of that activity by the Government or public functionaries is prohibited under Article 14.”

The Court went on to observe,

Thus, a private elementary school that does not promote the true vision of the Constitution cannot be granted recognition by State. The neutrality of the State in regard to religion must be imbibed at all levels, the Court held.

“Minority institutions, therefore, cannot shrug off their role as State functionaries and protect sectarian education under the garb of Articles 29 and 30. Article 21A and RTE Act of compulsory elementary education do not conceive the idea of education beyond the realm of secular activity of State.”

Multi-cultural education and Religious Pluralism

The Court went on to note that in a multi-cultural society, students need an educational system that equips them to acknowledge and accept diversity in society.

“Multi cultural education is a gateway to open his mind to understand the diversity that surrounds him and to equip himself by building a character capable of accepting differences. What makes our tradition and culture adorable is its contribution to respect the other persons point of view. This must be the essence of education in a multi religious society.”

In the background of these observations, the Court held that educational institutions can impart religious instruction or study based on religious pluralism, instead of exclusivism. Further,

“…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. It is for the Government to consider such request on a case to case basis.”

On the basis of these observations, the Court finally held:

i. No school which is required to have recognition under the RTE Act is entitled to impart religious instruction or religious study of one religion exclusively in preference to other religion.

ii. The private school which requires recognition is entitled to impart religious instruction or study based on religious pluralism after obtaining permission from the State Government.

In the present case, the Court found that the petitioner clearly imparts religious instruction exclusively following the Islamic religion.

“This cannot be permitted. Since it offends the very fabric of the secular society, the Government is justified in ordering closure of the school."

Having held so, the Court decided to grant the petitioner an opportunity to desist from imparting religious instructions or study without permission from the government.

Owing to the significance of the issue, the Court directed the Secretary of General Education Department to issue a general government order directing all recognised private schools in Kerala to desist from imparting religious instruction or religious study without permission from the government.

If the government finds that in spite of the direction, schools including that of the petitioner violates such order, it can initiate action for closure and de-recognition of such schools, the Court ordered.

[Read the judgment]