Since the inception of the Right of Children to Free and Compulsory Education Act (RTE), the legislation has been embroiled in controversy over its scope and application to unaided minority schools in the country.
Recently, a Division Bench of the Karnataka High Court, comprising Chief Justice SK Mukherjee and Justice PS Dinesh Kumar, directed the state government to cease all directions obligating minority schools to reserve 25 percent seats under Section 12(1)(c), and an additional 10 percent seats owing to delay in admissions.
The court also directed the schools to obtain a valid certification of minority status from the National Commission for Minority Educational Institutions within six months. The need for such intervention by the Karnataka High Court arose on account of Section 12(1)(c) of the RTE Act, which makes it mandatory for private schools to reserve 25 percent seats in entry-level classes for children belonging to economically weaker sections and disadvantaged groups. The court was of the view that several institutions were fraudulently claiming a minority status in order to escape the requirements of this provision.
The case in the high court is not an isolated incident. Section 12(1)(c) had a contentious birth and was challenged soon after its enactment in Pramati Educational and Cultural Trust versus Union of India (2014). In Pramati, the Supreme Court found in favour of all aided and unaided minority schools and exempted them from the application of the RTE Act in its entirety.
The precedent has been upheld in several cases involving arbitrary admission procedures of minority schools, lack of infrastructure and basic facilities in such schools, and selective violations of the RTE Act. For instance, in Master Srikanth L versus the Principal, the school violated the no-detention (a part of the RTE Act at that time), by failing a student.
The Karnataka High Court, relying on Pramati, did not interfere with the school's decision. In G Murugendran versus the Union of India, it was brought to the attention of the Madras High Court that admissions to an unaided religious minority school were being conducted in a discriminatory manner. However, the court could not rectify the procedure.
Admittedly, minority educational institutions enjoy some level of autonomy with respect to admissions. All religious and linguistic minorities enjoy the right to establish and administer their educational institutions through Article 30 of the Constitution. However, based on existing jurisprudence, there ought to be some regulatory safeguards made mandatory for even minority institutions, since not every provision under the RTE Act necessarily violates their rights under Article 30 of the Constitution. This was neither recognised nor considered in Pramati.
While the issue of admissions may be severely opposed by such institutions, there are some basic regulations prescribed under the RTE which can be made applicable to these schools. The RTE Act is largely regulatory and many provisions dealing with the ban on corporal punishment and capitation fees, availability of adequate teachers and non-teaching staff.
Further, the Act mandates essential facilities like clean drinking water and hygienic toilets, and basic building norms, which are necessary for fulfilling the mandate under Article 21A of the Constitution. These regulations are universal in nature and do not impede the day to day operations of minority schools. This view has been echoed by the Supreme Court in JK Raju versus the State of AP. However, with the blanket exemption, schools cannot be made obligated to follow certain welfare-oriented obligations laid down in the Act.
While a case can be made for considering baseline regulatory obligations for such schools, 12(1)(c) admissions remain contentious. The Supreme Court, in cases such as TMA Pai and PA Inamdar, has opposed reservation in minority institutions as it would lead to heavier state scrutiny over admissions.
Even though, in Pramati, the court acknowledged that as per settled judicial precedent, admission of students belonging to communities other than the minority community which has established the institution, would not annihilate the minority character of such institutions, it still went ahead and exempted all minority schools from the application of 12(1)(c). This is a contradiction.
It must be added here that there is no clarity on what "minority character" entails. In several judgments of the Supreme Court, it has been held that minority educational institutions can admit a "sprinkling" of students not belonging to that minority. Even if minority schools are opposed to changing their admission policy for all admissions, the jurisprudence on Article 30 permits schools to admit a reasonable number of students who do not belong to that minority.
In this context, 12(1)(c) admissions strike the perfect balance between the fundamental right under Article 21A and the rights enjoyed by minority institutions. However, as of now, the position of law laid down in Pramati is here to stay.
The author is Research Fellow (Public Law) at the Vidhi Centre for Legal Policy, New Delhi.
Your guide to the latest election news, analysis, commentary, live updates and schedule for Lok Sabha Elections 2019 on firstpost.com/elections. Follow us on Twitter and Instagram or like our Facebook page for updates from all 543 constituencies for the upcoming general elections.
Updated Date: Sep 21, 2017 12:34:56 IST