Balancing the Absence of a Right to Education in the Constitution of Sri Lanka: Recognition of the Right to Education through Recent Court Decisions

Abstract

Right to Education is an undebated right encapsulated in almost all of the international instruments. Starting from the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights, leading up to the recent International Convention on the Rights of Persons with Disabilities together with regional instruments on human Rights state the obvious: The right to education is so basic and fundamental that it is an inalienable right that should be protected and nurtured by the State. With this immense burden being laid upon the State in ensuring that this right is guaranteed to its citizens, the legislative organ of the State plays a pivotal role. The basic mechanism adopted by the States in this endeavor is through the Fundamental Rights chapter of the Constitution. The 1978 Constitution of Sri Lanka only contains the right to education as a Directive Principle which is not a right enforceable through courts. The issue that arises with regard to Sri Lanka is whether in the absence of an explicit provision for such a fundamental right, the judiciary plays a proactive role as another mechanism that steps in to fill the gap and balance the need. In the light of this question, where the Legislators have failed, the Judiciary champions this cause. This paper explores the role played by the Judiciary through recent Court decisions with special reference to benchmark judgments on the South Asian Institute of Technology and Medicine (SAITM), Grade one School admission case in Kuliyapitiya as well as the Z-score judgment. The final conclusion drawn from the analysis is that even though there is no explicit recognition of the right to education in the Constitution, the judiciary has by default, through judicial activism, taken up the role of filling the gap and balancing the need that should have been taken up by the legislators as evident through the recent judgments of Sri Lanka.