New Delhi: Eleven years after a five-judge Supreme Court bench ruled that the Right to Education Act (RTE), 2009, does not apply to minority institutions, whether aided or unaided, a two-judge bench has now raised “serious doubts” over its reasoning and sought the judgement’s reconsideration.
In a detailed 110-page verdict, a bench of Justices Dipankar Datta and Manmohan said Monday that there cannot be a “blanket exemption from the applicability of the law”, as it referred the matter to Chief Justice of India B.R. Gavai for appropriate directions on whether the Pramati ruling should be reconsidered by a larger bench.
The decision as well as the reference came on a set of appeals that had raised the question of the applicability of the Teacher Eligibility Test (TET) to minority educational institutions.
The petitioners relied on the 2014 Supreme Court judgement in the Pramati Educational and Cultural Trust Vs Union of India that declared the RTE Act ultra vires to the extent that it was held inapplicable to minority schools covered under Article 30(1), which deals with the right of religious and linguistic minorities to establish and administer educational institutions of their choice.
“We… have serious doubts as to whether Pramati Educational and Cultural Trust…was justified in granting a blanket exemption to minority institutions falling under Article 30(1) from the applicability of the RTE Act,” said Justices Datta and Manmohan. “The exemption granted in Pramati Educational and Cultural Trust… on the assumption of demographic dilution fails to consider this nuance and, in our humble opinion, warrants reconsideration.”
The RTE Act makes elementary education a fundamental right for every child between the ages of 6 and 14. It mandates free and compulsory education for children in this age group, bars expulsion before students have completed elementary education, requires private schools to reserve at least 25 percent of seats for children from economically weaker sections of society, and prescribes standards for schools.
In the SC’s opinion now, the RTE Act ought to apply to all minority institutions, irrespective of whether they receive financial aid from the government or not.
It differed from the Constitution Bench’s explanation that the RTE’s applicability will erode the minority status of such institutions protected under Article 30(1) of the Constitution.
“On the contrary, applying the RTE Act aligns with the purposive interpretation of Article 30(1), which was never meant to shield institutions from reasonable regulation in pursuit of constitutional goals,” the bench said, while identifying the purpose of RTE as “universalisation of elementary education”.
“There is no inherent conflict between Article 21A (Right to education) and Article 30(1); both can and must co-exist mutually,” it said.
Addressing Section 12(1)(C) of the Act, which mandates schools to reserve 25 percent seats for children from disadvantaged groups and weaker sections at the entry level, the bench said it “serves the broader purpose of social inclusion in and universalisation of elementary education”.
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‘RTE & minority rights can coexist’
While the bench agreed with the Pramati Educational and Cultural Trust decision that reservation impacts institutional autonomy to some extent, it found fault with the question considered by the Constitution Bench. It said the correct issue to have been decided was whether the reservation mandate annihilates the minority character of such institutions.
According to the two-judge bench, it does not alter the “school demographics in a way that would compromise the minority identity of minority schools”.
“Minority institutions undisputedly admit students from outside their community; doing so under a transparent, State-guided framework does not affect any right. Moreover, Section 12(1)(c) is accompanied by a reimbursement mechanism, which ensures financial neutrality,” held the bench.
To reconcile the perceived conflict between Section 12(1)(c) of RTE and Article 30(1) of the Constitution, the bench suggested reading down of Section 12(1)(c) in a manner that children admitted under the reservation policy could be only from the minority or linguistic community the school belongs to.
“Section 12(1)(c) does not mandate that 25% of children (from disadvantaged and economically weaker sections) admitted under the quota must belong to a different religious or linguistic community. In fact, the requirement can be met by admitting children from the minority community itself, provided they fall within the definitions of “weaker section” or “disadvantaged group” as specified under the RTE Act.”
It said there would be children even from the minority community who may fall within the definitions of economically weaker sections of society.
“A Christian or a Muslim school, or a school run by a linguistic minority, for instance, may well find that a substantial number of the 25% children admitted under Section 12(1)(c) belong to their own religious or linguistic group but are otherwise socially or economically disadvantaged. Hence, the idea that Section 12(1)(c) necessarily undermines or annihilates the school’s minority character is based on an incorrect presumption. Compliance with Section 12(1)(c) need not come at the cost of eroding the minority character of the school,” it added.
To admit students under the 25 percent quota from the minority community would not compromise the character of the institution, the bench said while adding that such an implementation of the law would reinforce the minority institution’s own constitutional mandate by serving the most underprivileged sections of its own community.
“This would not only preserve the institution’s cultural and religious identity but could also affirm its commitment to intra-community upliftment,” said the bench.
Compliance with the RTE Act would not annihilate the minority institution’s identity, protected under Article 30(1) of the Constitution, and should not be viewed as an “encroachment”, the bench held.
Rather, pointing to the “danger of a blanket exemption”, the bench said non-compliance with the RTE Act would reduce Article 30(1) to a tool for “evading necessary and child-centric regulatory standards”.
“The constitutional guarantee under Article 30(1), we are inclined to the view, was intended to preserve cultural and linguistic identity and not to provide institutions unqualified immunity from laws framed in the best interest of children,” opined the bench.
Listing out the gaps in the Pramati ruling, the bench said that total exclusion meant keeping an entire section of society out of the “idea and notion of nation building by providing education to children at the grassroot level.”
“Even if one were to accept that Section 12(1)(c) violated Article 30, the same could have been read down by including at least the children of the particular minority community who also belong to weaker section and disadvantaged group in the neighborhood. To hold that the entirety of the RTE Act is inapplicable, with due respect, does not appeal to us to be reasonable and proportionate.”
“Regulation in the form of norms and standards to ensure quality of education, does not dilute the minority character of an institution, and in fact is a necessary feature of the right to education, as understood both domestically, and internationally,” the court said, while upholding that TET was the “one of the minimum qualifications” under section 23 of the RTE Act.
(Edited by Sugita Katyal)
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