SGS-3B-Applications of Fundamental Rights

Civil Services Examination 2013 Conventional General Studies www.gktoday.
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Target 2013 Module SGS-3 : Indian Polity & Constitution 1
Constitution Part III: Introduction to Fundamental Rights
Contents
Story of Reservation 13. Right to Education Act: Main Features
1. Introduction 14. RTE Implementation Issues: Share of Burden
2. Discrimination on the basis of residence 15. RTE Challenged by Private Schools
3. Reservation in appointments 16. Admission Issues
4. Can reservation be at the cost of efficiency? 17. Free Education
5. Reservation for OBC: Mandal Commission 18. Extension to Class X
6. Indra Sawhney Case 1992 Abolition of untouchability
7. Reservation in Promotions 19. Defining Untouchability
8. Challenging the amendments: M Nagaraj Case 20. Protection of Civil Rights Act, 1955
9. The Constitution 117th amendment Bill 21. Prevention of Atrocities Act 1989
Right to Education Abolition of titles
10. Children in our constitution 22. Constitutional Provisions
11. The changes in constitution by 86th amendment Act
12. Background to RTE
Story of Reservation
Introduction
Article 14 of our constitution says that the State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India. By clause (1) of article 15, the constitution says that State shall not
discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
By Clause (2) of the Article 15, Constitution makes the accessibility to shops, public restaurants, hotels and places of
public entertainment, wells, tanks, bathing ghats, roads and other places of public use which are fully or partly funded
by the Government to all people belonging to any caste, creed, race, sex or whatever.
Then, Constitution makes further clarification by clause 3 of Article 15 that State is empowered to make special
provisions for women and children.
The constitution was enacted with the above three clauses in the article 15. At the same time, we find that Article 46,
which is one of the directive principles of state policy, says that state should promote with special care the educational
and economic interests of the weaker sections of the people and protect them from social injustice.
But, if the government had done so, it would have been challenged in the court to be discriminatory. So, in order that any
special provision that the State may make for the educational, economic or social advancement of any backward class of
citizens may not be challenged on the ground of being discriminatory, the government brought the first amendment of
the constitution in 1951 and added new clauses 15(4) and 15 (4) which became the foundation bricks of
Reservation Policy in India.
By article 15(4) & Article 15(5), the state was empowered to make special provisions for the advancements of any
socially and educationally backward classes of the citizens or for the SCs and STs.
While the Article 15 is general in its scope, in the Article 16, the equality of opportunity has been emphasised. Article
16 says that no person will face discrimination in the matter of opportunity. Then this Article mentions seven
prohibited grounds viz. religion, race, caste, sex, descent, place of birth, residence or any of these seven, on which
discrimination is disallowed in India.
Discrimination on the basis of residence
Article 16(3) says that only the parliament can make any law prescribing employment or appointment for a
government job on the basis of residence. This means that if parliament finds it suitable, it can discriminate on the
ground of residence. Here, you should note that parliament is empowered to make a recruitment within a state or union
territory in which person's "residence" may get preference. But at the same time, the State Governments are NOT allowed
to make such a recruitment in which residence of a person gets preference in state government jobs.
For example, in October 2011, the Bengal Police had given a recruitment notification in which provides for jobs for not
only specific districts but even particular areas. This was against the article 16(3) of the constitution. In "Kailash
Chandra Sharma versus the State of Rajasthan and others”, the Supreme Court observed that residence within a district
or rural areas of that district should not be a valid basis for classification for the purpose of public employment.
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Residence be it within a state, region, district, or lesser area within a district can not be a ground to accord preferential
treatment or reservation, as provided under Article 16(3).
Reservation in appointments
Then, in Article 16(4) the State is empowered to make any provisions for the reservation of appointments or posts in
favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services
under the State. Via various amendments, the article 16 has been further tweaked and it is now a law that:
1. State can make any provision for reservation in matters of promotion
2. Filling backlog vacancies via reservation
The above two have been enabled by the constitution only on satisfying two conditions. One of them is that State
should have an opinion that that particular class is backward. Second is that the State is of the opinion that the said
class is NOT adequately represented in the Government job. The Government had always an opinion that the SCs and
STs have not been adequately represented in the Government Jobs so used these provision to enable reservations in the
Government Jobs.
Can reservation be at the cost of efficiency?
Please note that Article 335 of the constitution says that the claims of STs and STs shall be taken into consideration
constituently with the maintenance of efficacy of the administration. This means that in the light of Article 335, the
constitution forbade the Government to make unreasonable reservation at the cost of efficiency in the administration.
Reservation for OBC: Mandal Commission
On 20 December 1978 India’s prime minister, Morarji Desai of the Janata Party, announced the formation of a second
Backward Classes Commission whose chairman was B. P. Mandal, a former member of Parliament. The commission’s
assignments were:
x to determine criteria for defining India’s “socially and educationally backward classes”
x to recommend steps to be taken for the advancement of those classes;
x to examine the desirability of reserving state- and central-government jobs for those classes;
x and to present a report to the president of India.
On 31 December 1980 the Mandal Commission submitted its report to President N. S. Reddy, recommending ways to
advance India’s “socially and educationally backward classes.”
The Mandal Commission developed eleven indicators of social, educational, and economic backwardness. One
indicator was being considered backward by other castes or classes. Other indicators included depending mainly on
manual labour for livelihood and having an average value of family assets at least 25 percent below the state average. In
addition to identifying backward classes among Hindus, the Mandal Commission identified backward classes among
non-Hindus (e.g., Muslims, Sikhs, Christians, and Buddhists) if they had belonged to “untouchable” castes before they
converted to a non- Hindu religion, or if Hindu castes with the same occupational names, such as dhobi (launderer),
lohar (iron worker), nai (barber), or teli (oil presser), were considered backward.
In February 1980 the Mandal Commission conducted a nationwide socioeconomic field survey in which it gathered
interview data from two villages and one urban block in
405 of the nation’s 406 districts. The field survey data, The Mandal Commission concluded that India’s population consisted of
combined with information from the 1961 census, various approximately 16 percent non- Hindus, 17.5 percent Brahmans and
“forward castes,” 44 percent “other backward classes,” and 22.5 percent
states’ lists of their backward classes, and personal
scheduled castes and tribes. However, since the 16 percent non-Hindus
knowledge of Commission members and others, enabled
presumably included approximately the same proportion of “other
the Mandal Commission to generate an all-India “other backward classes” as did the Hindus (i.e., another 8%), the total
backward classes” (OBC) list of 3,743 castes and a proportion of “other backward classes” (Hindu and non-Hindu)
came to 52 percent (44% + 8%) of India’s population, therefore
moreunderprivileged “depressed backward classes” list of
27% government jobs should be reserved for them.
2,108 castes.
On 7 August 1990 Prime Minister V. P. Singh announced in the Parliament that his government would implement the
Mandal Commission’s recommendations. This was followed by the violent objections in northern part of India.
Indra Sawhney Case 1992
The 27% reservation quota for backward classes and the government notification reserving 10% government jobs for
economically backward classes among the higher castes was challenged in the Supreme Court in the Indra Sawhney
Case of 1992. On 16 November 1992 the Supreme Court upheld the Mandal Commission’s 27 percent quota for
backward classes, as well as the principle that the combined scheduled-caste, scheduled-tribe, and backward-class
beneficiaries should not exceed 50 percent of India’s population. At the same time, court also struck down the
government notification reserving 10% government jobs for economically backward classes among the higher castes.
The opinion of the Supreme Court in the Indra Sawhney case is summarized as below:
Backward Classes of the Citizens of in Article 16(4) can be identified on the basis of caste and not only on
the economic basis.
Article 16(4) is not an exception to Article 16(1)
The backward classes in Article 16(4) are not similar to as socially backward classes in Article 15(4) i.e. SC
and ST
Creamy layer can be and must be eliminated from the Backward Classes.
Article 16(4) permits the classification of backwards classes into more backward classes.
Reservation shall not exceed 50%. The court said that this rule should be applied every year. However, it
may be relaxed in favour of people from far flung and remote areas because of their peculiar conditions.
However, extreme caution should be exercised in doing so.
Carry forward rule is valid but it is subject to 50%
There should be NO reservation in the Promotions.
Reservation in Promotions
The Article 16(4) came under the Supreme Court's interpretation in the Indra Sawhney case. The members of the
Scheduled Tribes and Scheduled castes of the country were enjoying the facility of reservation in appointments as well
as promotions since 1950s. On 16 November 1992, Supreme Court in its judgment in the Indra Sawhney and Others vs.
Union of India and Others (1992) case held that the Reservation of Appointments under article 16(4) of the constitution is
CONFINED to initial appointments and does not extend to the matter of Promotion.
Thus, Indra Sawhney case made two important normative points.
The first was the 50 per cent cap on reservations, ground in the rationale that backwardness does not exist in
the abstract; it depends on the average on society.
Second, the Court held that reservations in public employment could only exist at the entry level.
The reasoning was that reservations exist to create a level-playing field, to remedy unequal starting positions, thereby
removing the justification for promotion quotas. The court used the light of Article 335 to justify this.
But the government opined that this ruling of the Supreme Court will adversely affect the interests of the Scheduled
castes and Scheduled Tribes Community of the Country. The government further opined that representation of the SCs
and STs in the services in the state have not reached the required level. This was a conflict of judiciary and interests
of the executive / legislative. So to continue the existing share of reservation in the promotions as well, an
amendment bill was brought to the parliament, which after being enacted came into force as Constitution (77th
amendment) Act, 1995. Later it was further amended to include consequential seniority by 85th amendment.
One by one, the government made four amendments of the constitution viz. 77th, 81st, 82nd and 85th to provide not
only for reservations in promotion but also for consequential seniority on that basis. What this means is that a person gets
promoted through reservations, then claims to be senior on the basis of that promotion for the purposes of a further
promotion, and this continues indefinitely.
Challenging the amendments: M Nagaraj Case
In the M Nagaraj & Others vs. Union of India & Others (2006) the validity of these amendments was challenged in the
Supreme Court through various petitions clubbed together on the ground that these altered the Basic Structure of the
Constitution. But the court upheld the amendments because they did not alter the basic structure of the constitution.
The court further held that these provisions are merely enabling provisions. If a state government wishes to
make provisions for reservation to SC/STs in promotion, the state has to collect quantifiable data showing
backwardness of the class and inadequacy of representation of that class.
The Supreme Court had made it very clear that Article 16 (4A), which was inserted through these amendments,
was only an enabling provision. In essence, every time a government or the legislature sought to provide
reservation in promotions under Article 16 (4A), it would have to pass constitutional muster. While justifying each
attempt to provide reservation in promotions, the state would have to demonstrate backwardness, inadequacy of
representation and maintenance of efficiency.
Implications of M Nagaraj Case
The conditions laid down in Nagaraj case had raised a number of concerns. Since Article 16 (4A) permits reservation in
promotions only for the SCs/STs and not for the OBCs, the first condition in Nagaraj requiring the state to demonstrate
backwardness of the beneficiaries is problematic because it may lead to bringing in the ‘creamy layer’ test for SCs/STs
through the backdoor. However, Supreme Court had held for several times that test of ‘creamy layer’ is not applicable
to SCs/STs. The settled position of law is that all members of recognised SC/ST groups automatically satisfy the
condition of backwardness and there is no burden on the state to further establish the backwardness of those
individuals benefiting from reservation.
th
The Constitution 117th amendment Bill
The current controversy started from a judgment delivered by a two-judge bench of the Supreme Court in U.P Power
Corporation Ltd. v. Rajesh Kumar in April 2012. In the M. Nagaraj Case of 2006, it was already held by the Supreme
Court that the state must demonstrate backwardness, inadequacy of representation and maintenance of efficiency before
providing reservation in promotions. What the U.P Power Corporation did for the first time was to strike down
reservation in promotions for not meeting these criteria.
The UP Power corporation did this because the question of inadequacy of representation, the text of Article 16 is clear
that it is a matter for the state to determine.
The response of the government has now come in the form of 117th Constitution Amendment Bill introduced in the
Rajya Sabha.
The article 16 4 A as per this new amendment bill speaks as follows:
Notwithstanding anything contained elsewhere in the Constitution, the Scheduled Castes and the Scheduled Tribes notified
under article 341 and article 342, respectively, shall be deemed to be backward and nothing in this article or in article 335
shall prevent the State from making any provision for reservation in matters of promotions, with consequential seniority,
to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes to
the extent of the percentage of reservation provided to the Scheduled Castes and the Scheduled Tribes in the services of the
State.”.
We see that the proposed Article 16 (4A), which seeks to substitute the existing Article 16 (4A), has done away with
concerns of efficiency by stating that nothing in Article 335 can be an impediment, and the reference to ‘adequacy of
representation’ has been deleted.
Government says that the reservation in promotions at the entry level does not ensure that the project of equality of
opportunity is complete. It says that the reservation in promotions would take that project further, and it would not let
Article 335 to become a roadblock in this project.
Right to Education
Children in our constitution
At present, there are five articles in the constitution of India which have Children as their special focus. These articles are
Article 21A, 24, 39 & 45 and 51A (k). Thus special provisions for children find place in our constitution in Fundamental
Rights, Directive Principles as well as Fundamental Duties.
Article 21A: The Right to Education inserted in constitution via 86th amendment act.
Article 24: No child below the age of 14 years shall be employed to work in any factory or mine or engaged in
hazardous employment.
Article 39 (f): The State shall, in particular, direct its policy towards securing—
(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of
freedom and dignity and that childhood and youth are protected against exploitation and against moral and
material abandonment.
Article 45 : The State shall endeavour to provide, within a period of ten years from the commencement of this
Constitution, for free and compulsory education for all children until they complete the age of fourteen years.
Article 51A(k): who is a parent or guardian to provide opportunities for education to his child or, as the case
may be, ward between the age of six and fourteen years.
th
The changes in constitution by 86th amendment Act
The 86th Amendment Act 2002 had made the following changes in our constitution:
Change in Fundamental Rights:
A new article 21A was inserted below the Article 21 which made Right to Education a Fundamental Right
for children in the range of 6-14 years. This article reads:
“The State shall provide free and compulsory education to all children of the age of six to fourteen years in such
manner as the State may, by law, determine”
Change in DPSP:
Article 45 which originally stated:
The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free
and compulsory education for all children until they complete the age of fourteen years.
Was substituted as
The State shall endeavor to provide early childhood care and education for all children until they complete the age of six
years 1."
Change in Fundamental Duties
Article 51A was also amended and after clause (J), the clause (k) was added which says:
"who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the
age of six and fourteen years.".
As per the above amendments, the 86th Amendment Act came up with the following:
x It made Right to Education a Fundamental Right for Children from Age 6-14.
x It made education for all children below 6 years a Directive Principle for State Policy (DPSP).
x It made the opportunities for education to child a Fundamental duty of the parents of
the children.
Thus, we see that Right to Education is acquired by a child when he / she attains the age of 6 years. The day this 86th
Amendment Act was passed, a huge crowd of 70,000 people gathered at the capital and demanding that education be
made a fundamental right also for children up to six years of age.
Background to RTE
9 The 1986 National Policy of Education DID NOT make the education compulsory.
9 The first official document on the education right of children was Ramamurti Committee Report in 1990
which reviewed the National Education Policy 1986. This committee mentioned that not paying attention to
1
However this substitution has not been notified yet.
the right to education was the most fundamental problem of our education system. Ramamurti Committee
also noted that “the time has come to recognize “Right to Education’ as a fundamental right of the Indian
Citizens.
9 In 1991, a book by Myron Wiener titled “ The Child and State in India: Child labour & Education in
comparative perspective” noted states failure to eradicate child labour and enforce compulsory education.
9 In 1992, India became signatory to the UN Convention on Rights of the Child. Article 28 of this Convention
“asks the states to recognize right of education for every child and make primary education compulsory”. At
that time, it was not in line with the constitution’s provision in article 51(c) which says: State shall endeavor
to foster respect for international law and treaty obligations. (DPSP)
9 In 1993, Supreme Court Gave its landmark judgment in the Unnikrishnan JP vs State of Andhra Pradesh &
Others. In this case, SC held that Education is a Fundamental right flowing from Article 21.
9 In 1994, The United Front Government set up Saikia Committee to examine the proposal of making right to
free and compulsory education.
9 In 1997, the Saikia Committee Reported that Constitution of India should be amended to make the right to
free education up to 14 years of age a compulsory right. It also recommended making an explicit fundamental
duty of every parent to provide opportunities for elementary education.
9 In 1997, the United Front Government introduced 83rd Amendment Bill, 1997 which encompassed insertion
of article 21A & omitting article 45 of the Constitution. This amendment bill had an additional financial
memorandum that outlined the costs that would go into making education for children in the six to 14 age
groups a fundamental right for a 10-year period.
9 Tapas Majumdar Committee was set up by the NDA Government in 1999 to look into the financial
implications of operationalising the 83rd Amendment Bill introduced by the United Front government in
1997, seeking to make the right to free and compulsory education up to the age of 14 a fundamental right.
The 83rd Amendment Bill was renamed the 93rd Amendment Bill and significant changes were incorporated
in it. The tapas majumadar committee recommended that even children belonging to the poorest sections of
society must receive education that was comparable in quality with the best. It did not advocate low-cost
alternatives.
9 The 93rd Amendment Bill was discussed and passed By Lok Sabha on 27 November 2001 and Rajya Sabha on
14th May 2002. The date of the bill was to amended from 2001 to 2002 so it again went to Lok Sabha.
9 After ratification by the President, it became Constitution 86th Amendment Act.
9 In pursuance with article 21A, which says that “The State shall provide free and compulsory education to all
children of the age of six to fourteen years in such manner as the State may, by law, determine” and
Constitution 86th amendment act, it was now up to the state (means central government) to determine how
and in which manner the Free & compulsory education is to be provided.
9 The 86th amendment provided for a follow-up legislation, which culminated in Right to Education Bill 2005,
Right to Education Bill 2008 and finally Right to Education Act 2009.
Right to Education Act: Main Features
Education as Fundamental Right:
" Every Child of the age group of 6-14 years shall have right to free and compulsory Education.
" No child is liable to pay any kind of fee/ capitation fee/ charges. A collection of capitation fee invites a fine up to 10
times the amount collected.
Children from Disadvantaged Group:
" This right provides that “ child belonging to disadvantage group” means a child who
1. Belongs to SC & ST
2. Socially backward class.
3. Geographical, Linguistic, Gender or such other matters.
4. Is differentially abled.
The Right to Education Act 2009 did not initially talk about “Physically disabled” children. To enable such provisions,
the Right of Children to Free & Compulsory Education (Amendment) Bill 2010 was introduced in the Rajya Sabha on
April 16, 2010. This bill was later referred to a standing committee on Human Resource Development. The bill was
passed in both the houses of the parliament by May 2012 thus expanding the definition of “Child belonging to
disadvantaged group”. Now this group shall also include the children with disability. Disability means blind, leprosy
cured, hearing impaired, locomotor disabled and mentally ill. It also includes autism, cerebral palsy, mental
retardation & multiple disabilities. These children have the same right as of other children. Please note that Right to
Education of persons with disabilities until 18 years of age is laid down under a separate legislation- the Persons
with Disabilities Act. A number of other provisions regarding improvement of school infrastructure, teacher-student
ratio and faculty are made in the Act.
Teachers:
This act provides that the states will ensure that no non-teaching work is given to the teachers. The act recommends
quality teachers and mandates that untrained teachers will have to upgrade themselves in 5 years.
Schools:
The act has listed minimum infrastructure requirements as a part of the schools and mandates the states to ensure
that schools have these requirements. The schools which don’t conform to the quality standards as mentioned in the
act, will upgrade themselves in 3 years or face derecognition.
Reservation:
The act mandates 25% reservation for disadvantage sections of the society as defined by the act.
Management Committees:
The act mandates that parents are to constitute the 75% members in the management committees. The School
management committees are to have 50% women members.
Screening:
This act makes the screening of students / parents unlawful. It invites fine up to ` 25000 in the first instance and
double in every successive violations.
Examinations:
No child can be put through any exam, not even class V & Class VIII board examinations.
Number of Teachers:
The act mandates number of teachers as follows: (please note that in newspapers, different news have written
different ratios. The following list is reproduced from the official document 2)
Class I to Class V
9 Up to 60 children : 2 teachers (Pupil Teacher Ratio: 30:1)
9 61 to 90 children : 3 teachers (Pupil Teacher Ratio: 30:1)
9 90 to 120 : 4 teachers (Pupil Teacher Ratio: 30:1)
9 121-200 : 5 teachers (minimum Pupil Teacher Ratio: 40:1)
Class VI to Class VIII
9 One teacher per class each for 1. Science and math 2. Social Studies 3. Languages.
9 One teacher for 35 children
9 If there are more than 100 children then 1. A full time teacher 2. Part time instructors for Art, Health and
Physical Education, Work Education.
Corporal punishment:
The Right to Education Act 2009 makes corporal punishment unlawful.
2
http://www.education.nic.in/Elementary/free%20and%20compulsory.pdf
Private Teaching / Tuitions:
Clause 28, Chapter 28 of the act mandates that no teacher shall engage himself / herself in private teaching.
Monitoring:
The act states that National & State Commissions for protection of Child rights would monitor the effective
implementation of measures in this act and inquire into complaints.
National Advisory Council:
The act provides that the central Government shall constitute a National Advisory Council of maximum 15 members
which shall advise the central government on implementation of the various provisions of the act.
RTE Implementation Issues: Share of Burden
The Right to Education Act has made state and local bodies accountable for its implementation by 2013. Right from the
day one of its enactment, the states have been clamouring that these bodies do not have the financial capacity to cover
all the schools needed for universal education. Thus it was clear that the central government (which collects most of
the revenue) will be required to subsidize the states.
Consequently, the Anil Bordia Committee was set up by the HRD ministry in 2009-10 to harmonise the Sarva
Shiksha Abhiyan and the RTE.
The Anil Bordia committee was asked to study the funds requirement and funding initially estimated that Rs 171,000
crores would be required in the next five years to implement the Act. This committee argued for a higher financial
burden for the centre. The committee said that said that sharing ratio of 55:45 (for the current year) and 50:50 (in
2011-12 ) would be unfavourable to the states as they would have to practically double their allocation.
However, in April 2010 the central government agreed to share the funding for implementing the law in the ratio of 65 to
35 between the centre and the states, and a ratio of 90 to 10 for the north-eastern states.
However, later, this figure was upgraded to Rs. 231,000 crores. When the ` 24,000 crore awarded by the Finance
Commission is also taken into account, the centre's share effectively works out to 68% while that of the states' 32%.
A report on the status of implementation of the Act was released by the Ministry of Human Resource Development on
the one year anniversary of the Act. The report admits that 8.1 million children in the age group 6-14 remain out of
school and there’s a shortage of 508,000 teachers country-wide.
A RTE Forum report representing the leading education networks in the country, however, challenging the findings
pointing out that several key legal commitments are falling behind the schedule. The Supreme Court of India has also
intervened to demand implementation of the Act in the Northeast. It has also provided the legal basis for ensuring pay
parity between teachers in government and government aided schools.
RTE Challenged by Private Schools
This Right to Education Act defines the schools 3 as recognized schools-
9 that are aided by the government and local authorities.
9 that are not aided by the government and school authorities.
This means that private schools have not been ruled out by the act. This mandate is for all schools without exception.
The private schools are for making profits. Those who are anti this act can say there this affects their business and their
fundamental right provided by article 19 (1g) (to practice any profession, or to carry on any occupation, trade or
business). When we analyse this issue we can easily figure out that the above clause (g) to practice any profession or
business is virtually controlled by article 19 (6) which says that nothing in sub-clause (g) of the said clause shall affect
the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the
interests of the general public, reasonable restrictions on the exercise of the right conferred. Still the RTE was
challenged in the Supreme Court as an unconstitutional infringement on the rights of private and minority
schools. An association of schools had challenged the constitutional validity of RTE Act in the Supreme Court saying
3
Section 2 (n) RTE Act 2009.
the government was trying to enforce reservation and regulate affairs of private unaided and minority educational
institutions.
On 12 April 2012, a three judge bench of the Supreme Court delivered its judgement by a majority of 2-1. Chief Justice
SH Kapadia and Justice Swatanter Kumar held that providing such reservation is not unconstitutional, but stated
that the Act will not be applicable on unaided private minority schools and boarding schools. However, Justice KS
Radhakrishnan dissented with the majority view and held that the Act can not apply to both minority and non
minority private schools which do not receive any aid or grant from the government.
Admission Issues
The Model Rules don't provide many details on the implementation of 25 per cent reservation in private schools. It
does not specify the definition and verification of the weaker and disadvantaged sections. How to select the children
and in which class they shall be admitted. How they will gap the admission demand and seats available? What can be
the vigilance mechanism? How the schools (private) would be reimbursed? etc. There is no clear instruction for
private schools for formation of the school management committee.
Free Education
This is the most basic issue, which caused lot of confusion. It was earlier stated by Kapil Sibal that “ It could mean free
books, free uniform or anything as defined by the states”. This confusion prevails because of the hastily framed
document.
Madarsa and Vedic Pathshalas
Madarsas & Vedic Pathshalas have been clearly kept out of the purview of the Right of Children to Free and
Compulsory Education Act.
Extension to Class X
In 2011, it was reported that entre is keen on extending the provisions of the Right of all Children to Free and
Compulsory Education Act to Class X (age 16) instead of VIII. Nothing substantial has been decided in this context so
far.
Abolition of untouchability
Article 17 of the constitution of India “Abolishes untouchability” and forbids its practice in any form. As per this,
untouchability was made an offence punishable in accordance with law. The law includes a law passed before the
coming into force the constitution.
Defining Untouchability
Untouchability is neither defined in the constitution nor in the subsequent act by the parliament. It refers to a social
practice which looks down upon certain depressed classes solely on account of their birth and makes any
discrimination against them on this ground.
The untouchables were not supposed to draw water from the same wells, or use the pond/tank which is being used
by the higher castes. They were not allowed to enter some temples and suffered many other disabilities.
By virtue of Clause (2) of the Article 15, Constitution makes the accessibility to shops, public restaurants, hotels and
places of public entertainment, wells, tanks, bathing ghats, roads and other places of public use which are fully or
partly funded by the Government to all people belonging to any caste, creed, race, sex or whatever. But the grave
situation of the social stigma of “untouchability” led the framers of the constitution to put a dedicated article for this.
Please note that while other rights are against the state, this right is directed against private persons. The nature of
untouchability is such that it is not possible to conceive where the state may practice untouchability.
It was later held by the Supreme Court that whenever a fundamental right contained in arts. 17, 23 or 24 was being
violated by a private individual, it would be the constitutional obligation of the state to take necessary steps to interdict
such violation and ensure that such person should respect the right. Merely because the aggrieved person could himself
protect or enforce his invaded fundamental rights, did not absolve the state from its constitutional obligations.
Protection of Civil Rights Act, 1955
Based upon the power of Article 35 and Article 17, parliament enacted the Untouchability (Offences) Act, 1955. In
1976, it was made more stringent and was renamed The Protection of Civil Rights Act, 1955.
9 It defines civil right as any right accruing to a person by reason of the abolition of untouchability by Art. 17 of
the constitution.
9 All offences under the act have been made non-compoundable. Compoundable offences are those which can
be compromised by the parties to the dispute. The permission of the court is not necessary. When an offence is
compounded, the party, who has been aggrieved by the offence, is compensated for his grievance. Non-
compoundable offences are those in which compromise can take place only with the permission of court.
9 The act prescribes punishment (1-2 years imprisonment ) for preventing any person from entering any
place of public worship or from worshipping or from worshipping or denying access to any shop, public
restaurants, hotels or places of public entertainment or refusing to admit persons to hospitals and refusing
to sell goods or render services to any person.
9 Also, insulting a member of scheduled caste on the ground of untouchability or preaching untouchability or
justifying it on historical, philosophical, religious or other grounds is a crime.
9 Under the act, it has been declared a duty of the public servants to investigate offences relating to
untouchability. If a public servant wilfully neglects the investigation of any offence punishable under this act,
he shall be deemed to be an abettor.
9 The state governments have been empowered to impose collective fines on the inhabitants of an area
involved in or abetting the commission of offences under the act.
Prevention of Atrocities Act 1989
To prevent the commission of offences or atrocities against the members or the Scheduled Castes and Scheduled
Tribes, the parliament also enacted the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities ) Act, 1989.
9 The act provides for special courts for the trial of offence under the act and for the relief and rehabilitation of
the victims of such offences.
9 The act excludes the application of sec. 438, Cr. P.C. (granting of anticipatory bail in case of anticipated
accusation of non-boilable offences) to cases arising under the act.
9 Atrocities committed against a Hindu SC or ST, who had converted to another religion, can be prosecuted
under the act, if the victim is still suffering from social disability.
Abolition of titles
England is a monarchy where one finds Marquis, Barons, Lords And Knights, etc. Prior to independence, India also had
his highness, Nawab, Raja, Maharaja, Dewan Bahadur and similar titles some of which were hereditary. Via article 18(1)
, the constitution has abolished all the titles.
Constitutional Provisions
9 Article 18(1) prohibits the state to confer titles on any body whether a citizen or a non-citizen. Military and
academic distinctions are, however , exempted from the prohibition. Thus, a university can give title or
honour on a man of merit.
9 Clause (2) prohibits a citizen of India from accepting any title from any foreign state.
9 Clause (3) prohibits a person not being a citizen of India, but holding any office of profit or trust under the
state, from accepting any title from any foreign state without the consent of the president.
9 Clause (4) further prohibits such a person from accepting present, emolument or office of any kind from or
under any foreign state without the consent of the president.
9 Clause (3) and (4) have been added to ensure that a non-citizen should remain loyal to the state i.e. do not
commit the breach of trust reposed in him.
Please note that Article 18 does not secure any fundamental right but imposes a restriction on executive and
legislative power. Further, conferring of titles offended against the fundamental principle of equality of all citizens
guaranteed by art. 14. Further, you should not that Article 18 is merely directory because there is no penalty
prescribed for infringement off the prohibition.
Please further note that conferment of titles of Bharat Ratna, Padma ,Vibhushan , Padam Shri, etc. (Introduced in
1954) are said to be not prohibited under art. 18 as they merely denote state recognition of good work by citizens in the
various fields of the activity. The opponents say that these awards though may not be used as titles, the decorations
tend to make distinctions according to rank, contrary to the preamble which promises equality of status. Moraji desai
during his prime minister ship (1977-79) discontinued these decorations.

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