By Devender Singh Aswal
In “a sorry state of affairs” when Parliament has ceased to be a forum for enlightening debates and discussions, and when “privilege” is invoked to block scrutiny by a parliamentary committee, it is propitious that the recommendation of the National Commission for Protection of Child Rights (NCPCR) to bring all minority-run schools, including madrasas, under the purview of the Right to Education (RTE) Act and Sarva Shiksha Abhiyan (SSA), has generated public debate. The NCPCR has also backed reservation for students from minority communities in such schools after its survey found that a large proportion of non-minority students study there.
The NCPCR report says that religion-wise, Christians comprise 11.54 percent of India’s minority population and run 71.96 percent of schools; Muslims with 69.18 percent of minority population run 22.75 per cent of schools; Sikhs comprise 9.78 percent of the minority population and run 1.54 per cent of schools; Buddhists with 3.83 per cent of minority population run 0.48 per cent of schools; and Jains with 1.9 per cent of minority population run 1.56 per cent of schools.
There are three kinds of madrasas in India, namely, recognised madrasas which are registered and impart both religious as well as secular education; unrecognised madrasas found deficient for registration by state governments as secular education is not imparted by them or they lack in infrastructure, and madrasas which have never applied for registration. 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 percent 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 vs Union of India, making RTE inapplicable to minority schools.
The NCPCR has, therefore, recommended to the government of India to bring all minority schools, including madrasas under the purview of the RTE and SSA and also recommended reservations for students from minority communities in such schools in view of its finding that 74 percent of students in Christian missionary schools belonged to non-minority communities, and overall, 62.5 percent of the students in such schools belonged to non-minority communities.
The report also points out that many schools have registered themselves as minority institutions to thwart implementation of the RTE Act. Some of the conclusions are specious. For instance, the number of students studying in Christian schools as against the students of majority community studying in them.
However, let me confine here to the limited question of bringing the minority-run educational institutions within the ambit of the RTE Act and whether such an action impinges on the cultural and educational rights of the minorities. So, the vital question is: does the right of the minorities to run educational institutions under the protective clothing of Article 30 contravene fundamental right to education? Since minority schools are outside the purview of the RTE Act, there is no compulsion to admit students from disadvantaged backgrounds even 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 of the Constitution 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 has 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 such institutions on the ground that they are under minority management in the matter of grant-in-aid.
Article 350B says that there shall be a Special Officer for linguistic minorities to be appointed by the President. It shall be the duty of the Special Officer to investigate all matters relating to the safeguards provided for linguistic minorities under the Constitution and report to the President upon those matters at such intervals as the President may direct.
The Parliament inserted Article 21A in the Constitution vide 86th Constitution Amendment Act, making it incumbent that the Sate shall provide free and compulsory education to all children aged between six and 14 years in such manner as the State may, by law, determine. The said Constitutional 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 Constitutional Amendment Act inserted after Clause (4) of Article 15, Clause (5), 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).
The recommendation of the NCPCR, a statutory body set up under the Commissions for Protection of Child Rights Act, 2007, has caused anxiety in some and, consternation in a few. There is an apprehension that by bringing the minorities-run educational institutions under the ambit of RTE Act and the SSA, it 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.
The precise question for consideration is whether by bringing the minorities-run educational institutions under the ambit of the RTE Act and the SSA will curb, control or erode the fundamental cultural and educational rights of the minorities guaranteed by the Constitution. To answer this question, let us 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 percent of seats for children from 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 SSA.
The SSA, launched in 2002-2003 in partnership with 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 central government’s flagship programme for the achievement of Universalisation of Elementary Education (UEE) in a time-bound manner in a mission mode, as mandated by the 86th amendment to the Constitution, mandating free and compulsory education to the Children in the 6-14 year age group.
The SSA envisages the opening of new schools in those habitations which do not have schooling facilities and strengthens the existing school infra additional classrooms, toilets, drinking water, playgrounds, boundary walks, maintenance grant and school improvement grants.
Moreover, schools with inadequate teacher strength are also provided with additional teachers, while the capacity of existing teachers is being strengthened by extensive training, grants for developing teaching-learning materials and strengthening of 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 their admission.
In my considered view, the Pramati judgment failed to notice that besides the 25 percent quota in Section 12(1)(c), 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. Moreover, the judgment 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 Ahmedabad St. Xavier’s College case (AIR 1975), while considering the importance of teachers in an educational institution, Ray (CJ) 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 in, by the Supreme Court in Sk Md. Rafique vs Managing Committee, in the judgment 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 rights 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 judgments 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 the 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 author is a former Addl Secretary of India and a member of the Delhi Bar Council. The views expressed are personal