Enforcing the right to education

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Enforcing the right to education

Friday, 20 August 2021 | Devender Singh Aswal

Enforcing the  right to education

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

In a sorry state of affairs when Parliament ceases to be a forum of enlightening debate and discussion, it is propitious that the recommendation of the National Commission of Protection of Child Rights (NCPCR) to bring all minority-run schools under the purview of Right to Education Act (RTE Act) and Sarva Shiksha Abhiyan (SSA), has generated a new debate.

The NCPCR also backed reservation for students from minority communities in such schools.  The report finds a surge in the number of schools securing Minority Status after the 93rd Constitution Amendment, with more than 85 per cent of the total schools securing the certificate in the years 2005-2009.  A second surge was seen in 2010-14, 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 recommended bringing all minority schools, including Madrasas, under the purview of the RTE Act and SSA and also recommended reservations for students from minority communities in such schools in view of its findings. The report also points that many schools have registered as minority institutions to thwart implementation of the RTE Act.  The limited question is whether bringing the minority run educational institutions with in the ambit of RTE Act would impinge on the Cultural and Educational Rights of the Minorities?  Can the 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?  Another cause for serious worry is after the Pramati judgement, placing minority schools outside the purview of the RTE Act.

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 the 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.  Article 30 guarantees the right of minorities to establish and administer educational institutions of their choice.  But Article 21A inserted vide Eighty-sixth Constitution Amendment, makes it incumbent that the State shall provide free and compulsory education to all children of the age of six to fourteen years. The 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, clause (k), Article 51A casts 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 Amendment  added clause (5) to Article 15, which enables the State to make 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 RTE Act.

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 defines minorities. The question is, if these schools are brought under the ambit of RTE Act and the SSA,  will it  erode the Cultural and Educational Rights of the minorities. Education, being a Concurrent field of legislation, the 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 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 SSA, launched in 2002-2003, aims to provide education for all. It is a flagship programme for the achievement of Universalisation of Elementary Education in a time-bound manner.

The Pramati judgment failed to notice that besides the 25 per cent admission quota for children of weaker sections, the RTE Act also has provisions on infrastructural norms, pupil-teacher ratio, prohibition on screening tests and capitation fee and ban on corporal punishment, etc. These provisions benefit both the students and the minority community. All regulative measures which are not destructive of the character of the institution established by the minority, have been held valid by the judiciary.  In Ahmedabad St. Xavier’s College case (AIR1975), Ray C.J. observed, “This right implies the obligation and duty of the minority institutions to render the very best to the students [....] checks and balances in the shape of regulatory measures are required to ensure the appointment of good teachers and their conditions of service.”  According to Khanna, J., “The regulations have necessarily to be made in the interest of the 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.”  Justice Khanna also cautioned, “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”.  These observations were concurred in by the Supreme Court in their judgement in Sk Md. Rafique vs Managing Committee in January, 2020, upholding the West Bengal Madrasas 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 to achieve excellence in education. In the light of a series of judgments of the apex court, minority institutions cannot ignore or contravene the regulations issued by the State which aim to strengthen the reach and 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 RTE Act does not bar the minority-run institutions from choosing their own managements, appointing teachers and staff subject to their fulfilling the necessary norms and standards of education, admitting eligible students, having a reasonable fee structure and using 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. The barriers of community or gender cannot thwart the aims and objects of the legislature.  It is time to review the Pramati Judgment.

(The writer is a former Additional Secretary of the Lok Sabha and a member of Delhi Bar Council. The views expressed are personal.)

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