The Supreme Court has, in a recent verdict, by a majority of 2:1, upheld the validity of the Right to Education (RTE) Act, most significantly the clause mandating 25% reservation for economically weaker children, but exempted unaided minority institutions (the term ‘minority’ has been used in both the linguistic and religious contexts and it applies in the context of respective states) from the same. The judgment has been widely criticized on this account by several scholars of the law such as Prof. Krishnaswamy and this is indeed an interesting issue of constitutional law wherein three categories of fundamental rights (not other constitutional rights) are juxtaposed with each other.

In this blog, I argue that the critique of the judgment is well founded and there is no convincing justification to exempt minority schools from the 25% reservation regulation.

The exemption granted to minority institutions is on the basis of Article 30 of the Indian constitution, which is stated hereunder -

“Right of minorities to establish and administer educational institutions.—(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.

(2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.”

Now, none of the clauses have anything to do with the matter at hand i.e. exemption from RTE, except that as regards clause 2, it may be argued that not only does the exemption not discriminate against minority schools, but on the other hand, it discriminates in their favour. This is so, because the right of non-minority private entities “to practise any profession, or to carry on any occupation, trade or business” under Article 19(1)(g) of the constitution has been held in this very judgment to be reasonably restricted in the light of Article 21A of the constitution inserted by way of the 86th Amendment, upholding the right to education for all in the age group of six to fourteen years. Then why should minorities get the privilege? Their right to “establish and administer educational institutions” under Article 30(1), one may argue, is basically no different from that of other private individuals who wish to take up establishing and administering educational institutions as the occupation of their choice under Article 19(1)(g); so, where is the difference? To my mind, the difference can arise only if Article 30(1) is read with Article 29(1) (both Articles 29 and 30 of the constitution fall under the head of Cultural and Educational Rights), which states -

“Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.”

The title of Article 29 is ‘Protection of interests of minorities’ and so, the right of minority communities, linguistic or religious, to establish and administer educational institutions under Article 30(1) is in the light of allowing them to take steps to help them preserve their language and/or culture. But, does the imposition of the 25% quota take away their right to do so (considering the assumption, right or wrong, that the RTE Act is not to be treated as violative of other non-minority school managements’ right to run their institutions)? Not in any way I can think of, for they are still free to teach their language and/or religion. If minority colleges like St. Stephen’s College can have a Christian quota as also quotas for SCs, STs and OBCs (though I am dead against caste-based reservations or even income-based reservations at the college level, since I believe that compromising on merit isn’t a good idea, though I am fine with minority colleges granting a quota to students of their community so long as the students availing of their quota are mandatorily taught their language and/or religion in that college once they join), then minority schools (P12 institutions) can also have a fixed quota for students of their particular community and a separate 25% quota for the poor.

The obvious implication of this judgment was bound to be the opening of a floodgate for claims to minority status, which is indeed happening.

In my opinion, the judgment amounts to a miscarriage of justice and has dangerous implications with respect to interpreting constitutional law in the future. It may be in conformity with the vested interests of certain political parties to appease religious minorities (or even the majority Hindu community in other contexts), but our judiciary should be above this and should not read too much into constitutional safeguards for the minorities so as to divest them from statutory responsibilities for the larger national cause, in which the economically deprived of their communities have as much to gain. 25% reservation for economically weaker children practically makes for the largest venture in the world wherein quality education of private schools can be extended to the poor as well, with the Government bearing the financial burden, and as I see it, there’s no reason why unaided minority schools, such as unaided convent schools, many of which are highly renowned, should not be a part of this huge social phenomenon that can help transform the face of this country.

5 Comments on Should Minority Schools be Exempted from the Right to Education (RTE) Act Norms?

  1. Very nice Karmanye! You have legally explained that the grain of the judgement goes against equality before law. Certain exemptions shouldn’t have been made specifically for minority schools.

    And, as expected there is a flurry of activity to get minority status for them. I hope, this selected application of law doesn’t erupt into something ugly.

    Also, do state what criterion does a school need to follow to qualify as a minority institution in Delhi.

  2. Vishnu says:

    Ok so I have to ask at this point, in a strictly classical liberal sense, wont the whole idea of mandatory reservation be criticized due to it being biased towards one group/type/section of individuals (Thomas Sowell also contributed to this area if I am not mistaken). If I am right, then how does this blog post justify the deviation for mandatory reservation. And if I am wrong then what are the flaws in the first statement?

  3. karmanye says:

    Abhishek, thanks for reading the blog, commenting on it and also expressing appreciation in the same. As regards your query about how a minority status is accorded to a certain school, which I really appreciate for your interest in the subject, the regulations are not uniform throughout the country. But to get a general idea, you can have a look at the regulations in Maharashtra as an example by looking at this link -

    http://mdd.maharashtra.gov.in/.....0final.pdf

    Thanks again.

  4. karmanye says:

    Mr. Vishnu, thank you for your comment. Your query is a very rational one and there’s absolutely nothing wrong with your statement.

    As a research associate at the Centre for Civil Society (CCS), I shall spell out our stand on the issue of 25% reservation. Yes, as classical liberals, we do not approve of State intervention in the functioning of private entities. Having said that, we also believe in Milton Friedman’s concept of education vouchers, based on the principle that the government has a justifiable mandate in ensuring public services like education are accessible to the poor, but as far as possible, not by becoming a service-provider itself but by way of a system whereby the government sponsors education of poor children in private schools, expanding the freedom of choice for poor parents.

    Now, in the given context, CCS believes that the 25% reservation should not have been mandatory, but should have instead been encouraged as an optional initiative for private schools, since we believe that Govt. regulation in the working of private institutions is basically unethical. But under the RTE Act, it is mandatory and though that’s something we don’t support, we do welcome the fact that it is the largest education voucher scheme in the world and helps the poor avail of the high quality education of private schools as compared to their Govt. counterparts (and this assertion of the superiority of private schools is an assertion of our non-socialist stand) and as liberals, we believe that all should be implemented if it has to without any special privileges to any class of people, which is why I have opposed the exemption given to minority schools (and speaking in my personal capacity, I am dead against reservations at the college level based on any criterion like caste or even economic status, for merit comes into play there, as I have mentioned in the blog), and we at CCS firmly believe that the provision in the RTE Act mandating the Govt. fully bearing the financial burden of these economically weaker students enrolled in private schools under the quota must be implemented to perfection.

    I understand that there is seemingly an inherent dichotomy in our stand, but we believe that often, compromises have to be made with our ideal conceptions to adjust to existing realities and maximize whatever benefit we can from the prevalent circumstances for the sake of the needy.

    Thanks again.

  5. Vincent Barneto says:

    If A nun is appointed in an educational institution run by a minority school. Can a medical fitness certificate be insisted by the Education Department ? or are nuns in such educational institutions exempted from Medical fitness ? Please clarify.

What do you think