In ‘a sorry state of affairs’ when Parliament ceases to be a forum of enlightening debate and discussion, and when ‘privilege’ is invoked to block scrutiny by a parliamentary committee, it is propitious that the recommendation of the National Commission of Protection of Child Rights (NCPCR) to bring all minority-run schools, including madarsas, under the purview of Right to Education Act (RTE Act) and Sarva Shiksha Abhiyan(SSA), has generated a public debate.

The NCPCR also backed reservation for students from minority communities in such schools after its survey found a large proportion of non-minority students studying there. The NCPCR report says Christians comprise 11.54 per cent of India’s minority population, they run 71.96 per cent of schools, and Muslims with 69.18 per cent minority population run 22.75 per cent of the schools. Sikhs comprise 9.78 per cent of the minority population and run 1.54 per cent of schools, Buddhists with 3.83 per cent minority population run 0.48 per cent of schools, and Jains with 1.9 per cent minority population run 1.56 per cent of schools.

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Notably, the report traces the establishment of minority educational institutions to the colonial policy of divide and rule.

The report finds a surge in the number of schools securing Minority Status after the 93rd Amendment in 2006, with more than 85 per cent of the total schools securing the certificate in the years 2005- 2009.

A second surge was seen after the 2014 judgement of the Supreme Court in Pramati Educational & Cultural Trust v. Union of India making the RTE Act inapplicable to minority schools. The NCPCR has, therefore, recommended to the Union Government to bring all minority schools, including madrasas under the purview of the RTE Act and SSA and also recommended reservation for students from minority communities in such schools in view of its finding that 74 per cent of students in Christian missionary schools belonged to non-minority communities, and overall, 62.50 per cent of students in such schools belonged to non-minority communities.

The report also points out that many schools have registered as minority institutions to thwart implementation of the RTE Act. It is a worrisome spectacle though some of the conclusions appear contentious, for instance the number of students studying in Christian schools as against the students of majority community studying in them. However, let me confine myself here to the limited question of bringing minority-run educational institutions within the ambit of RTE Act and whether such an action impinges on the Cultural and Educational Rights of the minorities.

So the vital question is, can minorities, permitted to run educational institutions under the protective umbrella of Article 30, contravene Article 21(A) which protects a child’s fundamental right to education.

Since after the Praniti judgement, minority schools are outside the purview of the RTE Act, there is no compulsion to admit students from disadvantaged backgrounds even from within the minority communities running the educational institutions. The Constitution of India guarantees protection of interest of minorities.

All minorities, whether based on religion or language, have the right to establish and administer educational institutions of their choice.

Article 29 protects the interests of minorities by making a provision that any section of citizens, residing in the territory of India, having a distinct language, script or culture have the right to conserve the same.

It further mandates that no discrimination would be done by the State on the ground of religion, race, caste, language or any of them for admission in educational institutions maintained by the State. Article 30 guarantees the right of minorities to establish and administer educational institutions of their choice and also bars the State from discriminating against such institutions on the ground that they are under minority management in the matter of grant in aid. Parliament inserted Article 21A in the Constitution vide the 86th Constitution Amendment Act, making it incumbent on the State to 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.

The said Amendment also substituted Article 45 which now reads, “The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years”.

Besides, it inserted clause (k) in Article 51A casting an obligation on the parent or guardian “to provide opportunities for education to his child or ward between the age of six and fourteen years.”

The 93rd Constitution Amendment Act added clause (5) to Article 15 which reads, “Nothing in this article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30.”

In order to give effect to the constitutional provisions, the Parliament enacted The Right of Children to Free and Compulsory Education Act, 2009, (RTE Act). There is an apprehension in some sections that bringing minority-run educational institutions under the ambit of RTE Act and the SSA would violate the fundamental Cultural and Educational Rights guaranteed by Articles 29 and 30.

The expression ‘minorities’ in Article 30 is not defined in the Constitution.

However, Section 2 (c) of the National Commission for Minorities Act, 1992 notifies Muslims, Sikhs, Christians, Buddhists, Jain and Zoroastrians (Parsis) as minority communities and hence defines minorities.

Will the recommendation to bring the minorityrun educational institutions under the ambit of RTE Act and the SSA, if implemented, curb, control or erode the fundamental Cultural and Educational Rights of minorities guaranteed by the Constitution? To answer this question, let’s have a closer look at the aims and objects of the RTE Act. Education, being a Concurrent field of legislation under the Constitution, the RTE Act casts an obligation on the appropriate Governments and local authorities to provide and ensure admission, attendance and completion of elementary education by all children in the 6-14 age group.

The RTE Act also requires all private schools to reserve 25 per cent of seats for children of weaker sections whose stipulated fee would be reimbursed by the State.

The Right to Education of Persons with Disabilities until 18 years of age is reinforced by the Persons with Disabilities Act, 2016 and the Sarva Shiksha Abhiyan (SSA).

The SSA, launched in 2002-2003 in partnership with the State Governments and Local Self Governments, aims to provide education for all. Now rechristened as Samagra Shiksha, it subsumes the three Schemes of Sarva Shiksha Abhiyan (SSA), Rashtriya Madhyamik Shiksha Abhiyan (RMSA) and Teacher Education (TE).

It is now the Government of India’s flagship programme for the achievement of Universalisation of Elementary Education (UEE) in a time-bound manner in mission mode, as mandated by the 86th amendment to the Constitution of India making free and compulsory education available to children of the 6-14 years age group.

The SSA envisages opening of new schools in those habitations which do not have schooling facilities and strengthen the existing school infrastructure through the provision of additional classrooms, toilets, drinking water, playgrounds, boundary walks, maintenance grant and school improvement grants.

Also, schools with inadequate teacher strength are provided with additional teachers, while the capacity of existing teachers is being strengthened by extensive training, grants for developing teaching-learning materials and strengthening the academic support structure at a cluster, block and district level.

The rights of minorities to establish and administer educational institutions of their choice under Article 30 has been a matter of litigation. Freedom to ‘administer’ a school does not permit ‘maladministration’. Regulations for maintaining academic standards, ensuring proper infrastructure, health and sanitation, etc. could be imposed on minority schools as well, as evident from Articles 19 and 26.

Further, a government-aided minority school cannot discriminate against students on grounds of religion, race, caste, language in the matters of admission. In my considered view, the Pramati judgment failed to notice that besides the 25 per cent quota in Section 12(1)(c), the RTE Act also has provisions on infrastructural norms, pupilteacher ratio, prohibition on screening tests and capitation fee and ban on corporal punishment, etc. These provisions benefit both the students and the minority community.

Moreover, the judgement did not consider the fact that the government-aided minority schools stand on a different footing from their unaided counterparts, and as such are subject to regulations in order that all children receive free, compulsory and quality education. In the true interest of efficiency of instruction, discipline, health, sanitation, morality, public order and the like, the State may frame and impose reasonable restrictions.

All regulative measures which are not destructive or annihilative of the character of the institution established by the minority, have been held valid by the judiciary. In the Ahmedabad St. Xavier’s College case (AIR 1975), while considering the importance of teachers in an educational institution, Ray C.J. in his leading judgment observed, “The minority institutions have the right to administer institutions. This right implies the obligation and duty of the minority institutions to render the very best to the students. In the right of administration, checks and balances in the shape of regulatory measures are required to ensure the appointment of good teachers and their conditions of service.”

It was further stated that “regulations which will serve the interests of the teachers are of paramount importance in good administration.”

According to Khanna, J., “The regulations have necessarily to be made in the interest of the institution as a minority educational institution. They have to be so designed as to make it an effective vehicle for imparting education”, and “Regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed.”

A word of caution was also expressed by Justice Khanna while observing, “The minority institutions cannot be allowed to fall below the standards of excellence expected of educational institutions, or under the guise of exclusive right of management… .Balance has, therefore, to be kept between the two objectives, that of ensuring the standard of excellence of the institution and that of preserving the right of the minorities to establish and administer their educational institutions. Regulations which embrace and reconcile the two objectives can be considered to be reasonable.”

These observations were quoted, and concurred with, by the Supreme Court in Sk Md. Rafique vs Managing Committee, in their judgement delivered in January 2020, setting aside the judgment of the Single Judge of the Calcutta High Court, and upholding the West Bengal Madrasah Service Commission Act, 2008.

The Supreme Court held that the State has the right to introduce a regulatory regime in the national interest to provide minority educational institutions with well-qualified teachers so that they can achieve excellence in education.

It would be worthwhile to mention that an eminent scholar like Faizan Mustafa has termed the judgement per incuriam, i.e., contrary to law.

However, in the light of a catena of judgements of the apex court, minority institutions cannot ignore or contravene the regulations issued by the State which aim to strengthen the reach of quality education to all children.

The children belong to the State and it is the paramount constitutional obligation of the State to strive incessantly to provide universal access to quality education to all children regardless of their religion, gender or community.

The objective of successive National Policies on Education has been to provide universal access to quality education and promote lifelong opportunities for all. India is a signatory to Sustainable Development Goal 4 (SDG4), and committed to attain these goals which are in accord with the philosophy, and specific provisions, of the Constitution.

The RTE does not bar the minority run institutions to choose their own management, appoint teachers and staff subject to their fulfilling the necessary norms and standards of education, admit eligible students, have a reasonable fee structure and use their properties and assets for their institutional benefit subject to the laws of the land.

The provisions of the Constitution have to be construed harmoniously to give to each one of them, to uphold unity in diversity.

The writer is a former Addl Secretary of India and a member of the Delhi Bar Council. The views expressed are personal.