The Kerala High Court has recently passed a judgment stating that a private school requiring the Government’s recognition has no freedom to impart religious instructions of a particular religion in exclusion of other religions.

Secularism in India means equal treatment of all religions by the state. With the 42nd Amendment of the Constitution of India enacted in 1976, the Preamble to the Constitution asserted that India is a secular nation. However, neither India’s constitution nor its laws or political ideology define the relationship between religion and state.

In the judgment of this case, Justice A Muhamed Mustaque traced certain limitations on an educational institution in the matter of religious instructions, even if it was a private un-aided institution. The Court while considering a writ petition filed by the management of a school, which was ordered to be closed by the Government after it was found to be functioning without recognition, and to be imparting exclusive religious instructions after admitting students from a particular community alone.

The Court said that schools imparting elementary education were discharging a State function and were therefore bound by the principles of Secularism. The judgment stated, “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,”

The Court also went on to elaborate on the concept of secularism. It stated, “Secularism is against the very idea of exclusivism of one religion over other. The idea of secularism in India does not negate religion in public space unlike the French concept of ‘laicte’, which excludes religion in public space. Indian secularism on the other hand envisaged religious neutrality and equal treatment of all religions”.

The court thus held that a public functionary like the school in the said petition has an obligation to promote ‘constitutional idealism, morality and values” which includes secularism as an ideal.

The judgment further stated, “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 allowing dominance of any of the constituents over others. Secularism as envisaged in our Constitution epitomize the shared culture of the past.”

Thus the judgment leaned towards the opinion that public functionaries have the obligation to shape society based on Constitutional moralities and values and that they cannot adopt measures which are repugnant to the basic tenets of the Constitution and 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. It stated, “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.”

The Court also stated that the minority rights under Article 30 do not extend to dilute the secular nature of education. These rights cannot override the basic values of the Constitution. The Court also said that it was not completely denouncing the value of religious instruction but was expressing its disapproval of exclusive nature of the religious instruction imparted in the school in the given case. “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.” But however, 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.”

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Link to Judgment: Hidaya Edu & Charitable Trust v. State of Kerala