Kerala High Court
The Trustee vs State Of Kerala on 24 January, 2020
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
FRIDAY, THE 24TH DAY OF JANUARY 2020 / 4TH MAGHA, 1941
WP(C).No.25006 OF 2017(A)
PETITIONER/S:
THE TRUSTEE
HIDAYA EDUCATIONAL & CHARITABLE TRUST,MUHAMMED
UMER, AL-BISHARA, TC-43/758,KALATTUMUKU, MANACAUD
P.O.,THIRUVANANTHAPURAM DISTRICT - 695 009.
BY ADV. SRI.R.K.MURALEEDHARAN
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY,DEPARTMENT OF GENERAL
EDUCATION,SECRETARIAT, THIRUVANANTHAPURAM - 695
001.
2 THE DIRECTOR OF PUBLIC INSTRUCTIONS
OFFICE OF THE DPI, JAGATHI,THIRUVANANTHAPURAM - 695
014.
3 THE DEPUTY DIRECTOR OF EDUCATION
THIRUVANANTHAPURAM,THIRUVANANTHAPURAM DISTRICT -
695 001.
(*) Add.R4 THE SECRETARY
HOME DEPARTMENT
GOVERNMENT OF KERALA
[(*) ADDL.R4 IS SUO MOTU IMPLEADED AS PER ORDER
DT.2/8/2017]
R1 BY GOVERNMENT PLEADER
S KANNAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-
10-2018, THE COURT ON 24-01-2020 DELIVERED THE FOLLOWING:
=========================
W.P.(C).No.25006 of 2017 "C.R."
~~~~~~~~~~~~~~~~~~~~~~~~~
JUDGMENT
Dated this the 24th day of January 2020 Did our Constitution intend to transform civil society composed in the polity; if so, in what manner? Does the word 'secular' in the Preamble denote the character of polity alone? Or, does it intend to give a new shape to civil society? What matters while imparting learning in elementary school? Did our Constitution conceive elementary education tightened within the boundaries of schools segregated on communal line slipping into the position dismantled in Brown v. Board of Education of Topeka, [347 U.S. 483]? These are the foremost questions that have come up for consideration while deciding the fate of this writ petition filed by a private unaided school, imparting elementary education, challenging the State's action of closing down the school on the premise that it promotes exclusive religious instruction and admits only students W.P.(C).No.25006/2017 -:2:- from one particular community thereby posing threat to the secular fabric of society.
2. These questions arise against the backdrop of declaring right to elementary education as a fundamental right under Article 21A of the Constitution of India and the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as the "RTE Act"). This case presents an issue of seminal importance, do private unaided schools which require State recognition have the right to promote a particular religion to the exclusion of other religions while imparting elementary education?
3. The school is alleged to be functioning without Government recognition or CBSE affiliation and have admitted more than 200 students, all of them adherents to Islam. The State Government acting on intelligence report issued order of closure. The State Government noted that admission was being given exclusively to children belonging to one particular community. Acting upon the Government direction, the Deputy Director of Education, Trivandrum, issued the impugned order. Ext.P9 is the said order. It seems that W.P.(C).No.25006/2017 -:3:- before issuing the order of closure, an inspection was conducted by the Deputy Director of Education, who observed that the syllabus was in accordance with the curriculum prescribed by MFERD (Millet Foundation Education Research and Development). On browsing through the website of Millet Foundation, it was seen that the aforesaid foundation is providing a common platform to Muslim Educational Institutions for sharing, networking, co-ordinating and co-operating among themselves, to complement the efforts of individuals, professionals and organizations to achieve excellence in the field of education within the boundaries of Islamic Shariah. It is appropriate to refer to the presentation of the aforesaid foundation in the website, which reads thus:
"MFERD is a not-for-profit organization conceived in 2004 with the vision of providing a common platform to Muslim educational institutions for sharing, networking, co-ordinating and co-operating among themselves, thereby complementing the efforts of individuals, professionals and organizations in achieving excellence in the field of education within the boundaries of Islamic Shariah.
Our aim is to address various challenges faced by Muslim educational institutions and find solutions through collaboration, research and development.W.P.(C).No.25006/2017 -:4:-
One of our major objectives is to provide quality education by formulating and designing a value based curriculum for schools to nurture and culture our future generations with Etiquettes (Tarbiyat), Education (Taleem) and Excellence (Miyaar).
MFERD is a community of global educators from different fields who endeavour, encourage, share ideas and mutually work with one another for the success and uplifment of the Ummah, for the Ummah and by the Ummah.
MFERD is a registered trust and has a central office at Hyderabad (Telengana) to coordinate its activities."
This clearly shows that apart from achieving excellence in temporal education, an attempt is made to promote the individual identity of the pupil based on Islamic Shariah which would necessarily be possible only by imparting religious instruction in institutions.
4. Under Article 28(1) of the Constitution, there is a complete embargo on educational institutions wholly made out of State funds, imparting religious instruction. However, our Constitution allows educational institutions having State recognition or funds from the State to give religious instruction with the consent of guardian [Article 28(3)]. This enables educational institutions to give religious instruction to minor students with the consent of W.P.(C).No.25006/2017 -:5:- the guardian. It has to be kept in mind that this enabling clause existed in the constitution at a time when elementary education was not declared as a fundamental right. Further this does not enable schools to give religious instruction of one religion to the exclusion of other religions. The Hon'ble Supreme Court in Ms.Aruna Roy and Others v. Union of India and Others [(2002) 7 SCC 368] did not negate religious education based on religious pluralism but it cautioned against religious education based on religious exclusivism. There exists a substantial distinction between religious instruction and religious study. 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. It is in this background that the issue in this writ petition subsequent to the incorporation W.P.(C).No.25006/2017 -:6:- of Article 21A, which declares right to education as a fundamental right among children in the age group of 6 to 14, will have to be considered.
5. While framing the Constitution, the makers of the Constitution thought that compulsory education amongst children upto the age of 14 should be included in the directive principles under Article 45. Considering the role of education in transforming civil society, the Parliament amended the Constitution in the year 2002 to declare right to education as a fundamental right, qua Article 21A.
6. Thus, private institutions which impart elementary education discharge State function. The test of determination of State action of a private body is the nature of the authority related to the action. If the action emanates from the authority sanctioned by State, such action must satisfy all elements for validity based on constitutional norms.
7. The point of conceptual questions often elusive in arguments where the plain text of the Constitution is explained, the interpretation of Constitution must be in W.P.(C).No.25006/2017 -:7:- such a way that it reflects upon its aim for a transition from past to future and as a means to travel to the goal. As propounded by Thomas Hobbes, the noted political philosopher, the transformative nature of 4Constitution gives importance to 'resolutive-compositive method'. In the quest to hold organic unity in society, in his narratives of social contract, which propounds the individual and his relation with society, Thomas Hobbes acclaims proposition for political action in a resolutive-compositive method:
"Everything is best understood by its constitutive causes. For as in a watch, or some such small engine, the matter, figures, and the motion of the wheels cannot well be known, except it be taken asunder and viewed in its parts, so to make a curious search in the rights of states and duties of subjects it is necessary, I say, not to take them asunder, but yet that they be so considered as if they were dissolved".
8. 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 democaracy. The Hon'ble Justice Dr.D.Y.Chandrachud in Navtej Singh Johar & Ors. v. Union Of India, Through W.P.(C).No.25006/2017 -:8:- Secretary, Ministry Of Law And Justice & Ors. [(2018) 10 SCC 1] at para.601, spoke about the transformative character of Constitution as guiding factor of constitutional morality in the following lines:
"601 Constitutional morality requires that all the citizens need to have a closer look at, understand and imbibe the broad values of the Constitution, which are based on liberty, equality and fraternity. Constitutional morality is thus the guiding spirit to achieve the transformation which, above all, the Constitution seeks to achieve. This acknowledgement carries a necessary implication: the process through which a society matures and imbibes constitutional morality is gradual, perhaps interminably so...
602. The flourishing of a constitutional order requires not only the institutional leadership of constitutional courts, but also the responsive participation of the citizenry. Constitutional morality is a pursuit of this responsive participation. The Supreme Court cannot afford to denude itself of its leadership as an institution in expounding constitutional values. Any loss of its authority will imperil democracy itself."
9. This Court has to examine the role of State, public instrumentality and public functionaries in promoting Constitutional morality. The transformative character of Constitution makes perceptible changes from past to future on the basis of ideals cherished, valued and nourished in the Constitution. The Constitution casts an obligation on W.P.(C).No.25006/2017 -:9:- the public functionaries to promote constitutional idealism, morality and values. Secularism has value in the Constitution as an acknowledgment of the past and as a guide to future generations. The declaration that secularism is one of the basic features of Constitution in S.R.Bommai and Others etc. v. Union of India and Others etc. [AIR 1994 SC 1918] is only a reminder to insulate the Constitution against the persistent attacks on the ideal of secularism.
10. Secularism is against the very idea of exclusivism of one religion over others. During a debate in the Constituent Assembly, Prime Minister Jawaharlal Nehru explained his vision thus:
"By secular State, as I understand, the State is not going to make any discrimination whatsoever on the ground of religion or community against any person professing any particular form of religious faith. This means in essence that no particular religion in the State will receive any State patronage whatsoever. The State is not going to establish, patronize or endow any particular religion to the exclusion of or in preference to others and that no citizen in the State will have any preferential treatment."
11. The idea of secularism in India does not negate religion in public space unlike the French concept of 'laicite', which excludes religion in public space. Indian W.P.(C).No.25006/2017 -:10:- secularism on the other hand envisages religious neutrality and equal treatment of all religions. The renowned author Rajeev Bhargava in his book 'The Promise of India's Secular Democracy', refers to the distinguishing feature of Indian secularism as follows:
"I argue that Indian secularism is distinguished from others versions by five features. First, its explicit multi-value character. Second, the idea of principled distance that is poles apart from one-sided exclusion, mutual exclusion, and strict neutrality. Third, its commitment to a different model of moral reasoning that is highly contextual and opens up the possibility of multiple secularism, of different societies working out their own secularisms. Fourth, it uniquely combines an active hostility to some aspects of religion with an equally active respect for its other dimensions. Finally, it is the only secularism that I know that attends simultaneously to issues of intra-religious oppression and inter-religious domination. In my view, these are path-breaking features of any model of secularism."
12. Secularism in India has to be understood in the background of a multi religious and multi cultural society. In the tradition of past, a distinction or discrimination has not been made based on religion or its belief.
"Vasudhaiva Kutumbakam", a Sanskrit phrase found in Hindu texts such as Maha Upanishad, refers to the world as one family. Referring to the duty of the ruler, 'Raja Dharma', W.P.(C).No.25006/2017 -:11:- late Justice M.Rama Jois in his book 'Raja Dharma with Lessons on Raja Neeti', refers to secularism of ancient India as follows:
"SECULARISM:
Narada Smriti vide Dharmakosha, P-870 laid down thus:-
The king should afford protection to compacts of associations of believers of Veda (Naigamas) as also of disbelievers in Veda (Pashandis) and of others."
The author also observed obligation of the King to give equal protection to all by quoting Manu Smriti as follows:
"EQUAL TREATMENT OF ALL:
It was also made obligatory for the king to give equal protection to all persons without discrimination. In this behalf, "Manu Smriti"
on Rajadharma [IX-31] says:-
यथथ सरथरणण भभतथनन धरथ धथरयतत सममम ।
तथथ सरथरणण भभतथनन ब भत पथरथर र वतमम ॥ Just as the mother earth gives equal support to all the living beings, a king should give support to all without any discrimination."
13. The concept of secularism that evolved in the Constitution is based on what was existing in ancient India. Perhaps that is the reason why the makers of the Constitution did not declare India as a secular State in the W.P.(C).No.25006/2017 -:12:- Constitution during its framing. The Parliament, on realising the threats and challenges being posed to the pluralist characteristic of the nation on the basis of religious identity, included secularism as a basic feature in the Preamble to the Constitution, vide forty-second constitutional amendment.
14. The objects of education include character building of the people as well. In a multi-religious and multi cultural society, the students need an educational system that equips them to acknowledge and accept diversity in society. Multi cultural education must reflect upon co- existence for mutual benefit and the nation's benefit. It must be capable of integrating diverse needs without affecting the distinct identity which they own for a unified vision of the society and the State. It must focus on reduction of prejudices, bias and promotion of democratic values. Multi cultural education in practice focuses on equity pedagogy by structuring school syllabus, accepting diversity of all in equal measure. This would create an atmosphere of mutual respect and intimacy among students. W.P.(C).No.25006/2017 -:13:- The Apex Court in Aruna Roy's case [(2002) 7 SCC 368] relied upon SB Chawan Committee report which succinctly referred to value based education. After referring to SB Chawan Committee report, it was observed in para.37 that the use of religion will not imperil secularism and value based education is likely to help the nation in fighting against all kinds of fanaticism, ill-will, violence, dishonesty, etc.
15. A child sees the world through the windows of the school. What he learns and observes in school is considered as unassailable truths as he has no other cognitive skill to rationalise his thoughts by questioning what he learns and observes with empirical reality. Education must equip him to see the world with an open mind. 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. W.P.(C).No.25006/2017 -:14:-
16. In a democratically governed society under the Constitution, public institutions have an important role in shaping the society. They not only discharge public functions as dictated by the Constitution, but they also have the obligation to shape society based on Constitutional moralities and values. Indian polity and society will have to be evolved upon secular lines, adopting neutrality in the treatment of religions and not by rejecting any religion. The State and its instrumentalities and public functionaries must discharge their functions without showing any distinction based on religion, caste or creed. In a secular democratic State, no institution can survive unless the institution follows the virtues of constitutional morality. Secularism as a value needs to be reflected upon public governance and on the character of every institution discharging public function. The idea of secularism in the Constitution is the result of the acceptance of the character of a pluralist society composed by people having diverse interests. In a pluralist society, people enter into a social contract to live together equally without W.P.(C).No.25006/2017 -:15:- allowing dominance of any of the constituents over others. Secularism as envisaged in our Constitution epitomize the shared culture of the past.
17. Public functionaries cannot adopt measures which are repugnant to the basic tenets of Constitution. 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. Public Functionaries are duty bound to preserve the collective identity of a multi cultural and secular society. The liberty of an individual or the collective freedom available to a group even to denounce multi cultural character is not available to the State or its instrumentalities or public functionaries.
18. A private body that discharges public functions must adhere to constitutional values in regard to the discharge of pubic functions. It cannot adopt any character contrary or repugnant to constitutional morality or value. W.P.(C).No.25006/2017 -:16:- Individual freedom available to a private body to promote his own belief or faith is not available to a private body when it discharges public function. It is bound by public morality conceived in the Constitution. Public morality is the morality dictated by the Constitution. Public functionaries, therefore, cannot have their own morality independent of the one envisaged in Constitution. Every public functionary is, therefore, bound to sustain the shared morality of a multi cultural society.
19. The recognition that is required from the State Government under the RTE Act is for imparting secular education. In Alton J. Lemon et al. v. David H.Kurtzman [403 US 602, (29 L Ed. 2d 745)], a question was considered by the US Supreme Court in regard to the legality of Government funding of non secular schools in light of the establishment clause of the first amendment. The US Supreme Court devised the three part test popularly known as the lemon test. The three part test laid down as follows:
i. Government action must have secular purpose.W.P.(C).No.25006/2017 -:17:-
ii. Government action must neither advance nor prohibit religion.
iii. Government action must not result in excessive government involvement with religion.
If any of the above prongs are violated, the actions are to be declared unconstitutional. It was observed that using sectarian institution to further goals in secular institution, the Government may not employ religious means to serve secular interest, however legitimate that may be.
The RTE Act intends to schematize elementary education based on non sectarian commitment of private school to promote elementary education. If a private elementary school cannot promote true vision of the Constitution and the State in moulding the character of the young mind as true citizen, the State cannot grant recognition to such schools. The neutrality of the State in regard to religion must be imbibed at all level of State action.
20. The Constitution does not allow mixing of secular activities with religious activities. If the purpose of education on broad vision to inculcate values based on religious instruction is left to the choice of pupil with W.P.(C).No.25006/2017 -:18:- the consent of guardian, it must fulfil constitutional parameters under Article 28(3) as such choice must be available to all based on religious pluralism. In S.R.Bommai's case [AIR 1994 SC 1918], the Hon'ble Supreme Court opined that religion cannot be mixed up with the secular activities of State. The mixing up of religion with secular activities, is only based on the broad policy of equal treatment of all religion and maintaining neutrality of public functionaries. The Supreme Court of United States in Brown's case [347 U.S. 483] had made a notable mention about education as instrument to awaken cultural values and opined at para.13 as follows:
"Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state W.P.(C).No.25006/2017 -:19:- has undertaken to provide it, is a right which must be made available to all on equal terms."
This opinion remains significant in a multi religious society where the child needs to adjust his own identity, in conflict, with others identity to maintain the character of a true citizen based on the ideals of Constitution. The State has high responsibility in the matter of education. The very title of RTE Act denotes the ambition of the State to provide compulsory education at elementary education level. The State sees compulsory education as an opportunity to mould the child as a true citizen. Thus, the State can look at education, only through the lens of secular activity, to subserve the ideals of Constitution.
21. Parents of the child might seek a curriculum based on personal choices related to their religion. The United Nations' 'International Covenant on Civil and Political Rights' (ICCPR) protects the liberty of parents to ensure religious and moral education of their children in conformity with their own convictions [Article 18(4) of ICCPR]. However, State can provide a curriculum that W.P.(C).No.25006/2017 -:20:- subserves only the purposes of State. 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. If the State ignores its own goal in securing the object of State in the formulation of curriculum, it would result in disastrous consequences paving way for preferences based on individual ideals than collective ideals, eroding the shared value and culture ordained to be sustained through secularism. Although the Constitution protects the liberty of parents to choose the value and type of education, the State has not lost its power to regulate the curriculum of education to ensure guidance in the making of true citizens on the foundation of ideals of Constitution.
22. Education plays an important role in transforming the character of civil society. In preambular justice, the Constitution lays importance to fraternity. Fraternity in diverse society can be achieved only by incorporating values in education imparted. This must be attained through a W.P.(C).No.25006/2017 -:21:- mutli cultural pedagogy. There needs to be a value based education to promote values of multi cultural societies. The Apex Court in Santhosh Singh v. Union of India [(2016) 8 SCC 253], referred to education as an important instrument towards the development of the individual as well as an instrument in nation building. It is further opined that acceptance of plurality and diversity of ideas, images and faith is a result of education.
"22. Morality is one and, however important it may sound to some, it still is only one element in the composition of values that a just society must pursue. There are other equally significant values which a democratic society may wish for education to impart to its young. Among those is the acceptance of a plurality and diversity of ideas, images and faiths which unfortunately faces global threats. Then again, equally important is the need to foster tolerance of those who hold radically differing views, empathy for those whom the economic and social milieu has cast away to the margins, a sense of compassion and a realisation of the innate humanity which dwells in each human being. Value based education must enable our young to be aware of the horrible consequences of prejudice, hate and discrimination that continue to threaten people and societies the world over. Morality as a defining concept of spreading values may run the risk of being dangerously one sided, exposing young citizens to the same dogma which those who decry the creed of materialism seek to change. Moreover, morality itself is a notion which has varying hues."W.P.(C).No.25006/2017 -:22:-
23. Exclusivism or preference of one religion over others by State or public functionaries or private bodies, while discharging public functions, strikes at the very root of the fundamental values of our Constitution, namely, secularism. It negates neutrality, promotes discrimination and denies equal treatment. Private schools which are required to have recognition from State must not promote one religion over others. The exclusive promotion of a particular religion by private educational institutions defies the secular character of the Constitution and denies constitutional value and morality. An individual or a group or a denomination have the freedom to express and to promote and practice their religion. That freedom is not available to a private body while discharging a public function. In a pluralist society like India, which accepts secularism as the basic norm in governing secular activities including education, there cannot be any difficulty in imparting religious instruction or study based on religious pluralism. What is prohibited is exclusivism. In Aruna Roy's case W.P.(C).No.25006/2017 -:23:- [(2002) 7 SCC 368], the Apex Court at para.71 held as follows:
"71. Education in India which is to be governed by secular ethos contained in its Constitution and where 'religious instruction' in institutions of the State are forbidden by Article 28(1), the 'religious education' which can be permitted, would be education based on 'religious pluralism'. The experiment is delicate and difficult but if undertaken sincerely and in good faith for creating peace and harmony in the society is not to be thwarted on the ground that it is against the concept of 'secularism' as narrowly understood to mean neutrality of the State towards all religions and bereft of positive approach towards all religions."
While lamenting exclusivism, it was observed in Aruna Roy's case (supra) as follows at para.65:
"65. In a pluralistic society like India which accepts secularism as the basic ideology to govern its secular activities, education can include study based on the 'religious pluralism'. 'Religious pluralism' is opposed to exclusivism and encourages inclusivism."
24. The role of educational institutions which require recognition under the RTE Act, therefore, must be to promote constitutional values to shape the character of pupil based on fundamental values of the Constitution, and not by denouncing it. Thus, educational institutions can impart religious instruction or study based on religious pluralism instead of exclusivism.
W.P.(C).No.25006/2017-:24:-
25. Our Constitution accords special protection to the minorities under Article 25, Article 29 and Article 30. Cultural rights, as protected under Article 29, would include nature of education as well. The right to establish and administer educational institutions under Article 30 would also include the right to choice of education, subject to any restriction imposed under law. However, these rights do not extend to dilute the secular nature of education. These rights cannot override the basic values of the Constitution. It can be exercised only in consistent with the fundamental values of the Constitution. The status of minority institutions in relation to imparting elementary education is relatable to State function. 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. If minority institutions are given free hand to promote W.P.(C).No.25006/2017 -:25:- religion, it would result in denial of admission to such schools based on religion.
26. This issue has to be examined in yet another perspective. The RTE Act was enacted by the parliament after the insertion of Article 21A in the Constitution. Under Section 29, the Act mandates that the curriculum and evaluation procedure should be as laid down by the appropriate authority to be specified by the government. Appropriate authority, as defined under Section 2(a)(ii)(A) in relation to school within the State, is the State Government. In such circumstances, no school which is required to have recognition shall impart any religious instruction or religious study without permission from the State Government.
27. This Court does not denounce value education moulded on the basis of religious instruction or study. This Court had only considered the point in relation to State function being discharged through elementary school. Religious instruction or study is capable of moulding value based education. However, it shall be settled through a W.P.(C).No.25006/2017 -:26:- multi cultural pedagogy allowing parents to choose what is best suited to their children. This Court had only frowned on the actions of public functionaries, like provider of elementary education constricting the secular nature of education, promoting the religion of one sect in preference to other sects which would ultimately promote sectarian education and deny education to the students belonging to other sects. No elementary schools imparting secular education can promote one religion over others. Therefore, 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.
Upshot of the discussion is as follows:
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.W.P.(C).No.25006/2017 -:27:-
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.
28. In this case there is a clear finding that the petitioner imparts religious instruction exclusively following 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. However, taking note of the peculiar facts and circumstances of the case, this Court is of the view that an opportunity should be given to the petitioner to desist from imparting religious instructions or study without permission from the Government. In light of the fact that this issue is of great significance, the Secretary of General Education Department is directed to issue a general government order directing all recognised private schools in the State to desist from imparting religious instruction or religious study without permission from the Government. In light of the above, if the Government finds that inspite of the direction, schools W.P.(C).No.25006/2017 -:28:- including that of the petitioner violates such order, the Government can initiate action for closure and derecognition of such schools.
Therefore, declining the challenge, the writ petition is disposed of with the above observations and directions.
Sd/-
A.MUHAMED MUSTAQUE
ms JUDGE
WPC 25006/2017
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1. A TRUE COPY OF THE DEED OF TRUST DATED 02.04.2001.
EXHIBIT P2 A TRUE COPY OF THE APPLICATION FOR
RECOGNITION DATED NIL.
EXHIBIT P3. A TRUE COPY OF THE CERTIFICATE ISSUED BY THE THIRUVANANTHAPURAM CORPORATION DATED 01.02.2013.
EXHIBIT P4. A TRUE COPY OF THE DEED OF TRUST DATED 24.07.2015.
EXHIBIT P5. A TRUE COPY OF THE TIME-TABLE FOR STANDARD I TO IV.
EXHIBIT P6. A TRUE COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT DATED 04.01.2017.
EXHIBIT P7. A TRUE COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT TO 2ND RESPONDENT DATED 20.10.2016.
EXHIBIT P8. A TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT DATED 29.11.2016.
EXHIBIT P9. A TRUE COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT DATED 31.05.2017.
EXHIBIT P10. A TRUE COPY OF THE NOTICE ISSUED BY THE SCHOOL FOR ADMISSION TO 2017-18.
EXHIBIT R2(A) TRUE COPY OF COMMUNICATION DT.20.10.2016 EXHIBIT R2(B) TRUE COPY OF THE REPORT FILED BY DEPUTY DIRECTOR OF EDN. DT.18.1.2017 EXHIBIT R2(C) TRUE COPY OF THE REPLY DT.6.1.2017 FILED BY THE PRINCIPAL OF THE PETITIONER SCHOOL WPC 25006/2017 EXHIBIT R2(D) TRUE COPY OF THE COMMUNICATION DT.12.5.2017 ANNEXURE A THE ENTIRE DETAILS OF STUDENTS ALONG WITH THEIR ADDRESS, FATHER'S NAME, OCCUPATION AND CONTACT NUMBER.