The right to education under Article 21A of the Indian Constitution is operationalized by the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act). The constitutionality of the statute was initially upheld in Society for Unaided Private Schools of Rajasthan v. Union of India (2012) (Society), where the Supreme Court of India (SC) excluded unaided minority institutions and boarding schools from the operation of the RTE Act. On 7 May 2014, a constitution bench of the SC rendered judgment in Pramati Educational and Cultural Trust v. Union of India (Pramati). Although the court reiterated the underlying constitutionality of the statute, it went a step further from the Society case in excluding minority administered institutions, both aided and unaided, from the operation of the RTE Act. Here, I argue that the judgment is flawed on three counts. First, it builds on SC jurisprudence that has not provided a consistent understanding of what constitutes a minority group in the context of education, second, when justifying the exclusion of minority educational institutions, it ignores the difference between the reservation and regulation obligations cast by the RTE Act, and third, that the decision’s doctrinal support is derived from case law concerning higher, and not primary and secondary education.
Who is a minority?
The SC case law on this question has led to broad criteria that may be applied while answering this question, with two meaningful conclusions which one can infer. First, that religion and language are the axes on which this determination is made. Second, the identification of a minority group or community requires a determination of whether the discrete group is numerically less than 50% of the total population of a state (Bal Patil v. Union of India, 2005; DAV College v. State of Punjab, 1971). Anomalously, this ensures that each religious and linguistic group is a minority in some part of India. The process of grant of minority status to an educational institute varies from state to state, is often opaque, and not very well understood. Religious minority identification is straightforward, and the Central Government has so far notified six religious minorities: Muslims, Christians, Sikhs, Parsis, Buddhists and Jains. Further, at the Union level, the National Commission for Minority Educational Institutions (NCMEI) is statutorily empowered to grant and withdraw minority status to an applicant educational institutions that is established and administered by persons belonging to a minority group, and fulfils certain other guidelines as established by case law (Re Kerala Education Bill, Sidhrajbhai, TMA Pai and PA Inamdar). It appears that the domain of the NCMEI runs parallel to the authorities set up by various state governments. The determination of linguistic minorities presents a greater challenge, and involves a multitude of state authorities whose jurisdiction is not clearly defined. Consider the case of Karnataka, where educational institutions seeking minority status had been applying to the Department of Public Instruction. This may change after certain educational institutions seeking minority status challenged the basis on which the minority certification was being granted before the Karnataka High Court (W.P. 44968/2012). The outcome of these proceedings may ensure that the criteria for determination of minority status of an institution is crystallized and made more inflexible. The general practice amongst states while granting minority status is to check whether the governing body of the institution consists of members belonging to a particular minority group, whether a minority group comprises a majority of the student body, and whether the institution serves the educational interests of the minority group. Therefore, it appears that there are a variety of institutions which often have overlapping jurisdiction to deal with this question.
Regulation v. Reservation
The approach of the RTE Act when operationalizing the fundamental right to education is to cast two types of obligations on schools: reservation obligations (where private schools are mandated to provide free and compulsory education to socially and economically disadvantaged students) and regulation of schools (where all schools are expected to meet minimum norms and standards in the nature of general regulation to function legitimately). The former has been the arena for fierce legal contestation, but is held to be constitutionally valid, yet the obligations imposed by the latter has received relatively lesser attention. The regulation obligations cast by the RTE Act provides, among others, specific entitlements to children such as access to education, building infrastructure, teacher-pupil ratios, non-discrimination and freedom from harassment.
The petitioners in Pramati, a group of aided and unaided private schools, contended that these obligations under the RTE Act violated their right to freedom of profession under Article 19 (1) (g). Additionally, minority institutions claimed that their right to establish and administer educational institutions under Article 30 (1) was violated. The arguments put forth by the latter are discussed here. Article 30(1) is meant to ensure that a minority group is capable of conserving its religion and language, and enable children belonging to a minority group to receive a thorough general education (P.A. Inamdar v. State of Maharashtra, 2005). Significantly, the jurisprudence of the SC points toward two circumstances under which this right may be limited. The first of these circumstances is in the application of a legal provision enacted in the national interest, which is applicable to all educational institutions. This line of reasoning emerges from the approach taken by the court in the Inamdar case, departing from previous cases like Sidhrajbhai (1963). Despite this seemingly ambiguous formulation, it is brought into sharper focus by the second limiting circumstance, which provides that reasonable regulation may be imposed upon a minority administered institution for the benefit of the institution as a vehicle of education, such as those intended to maintain the educational character and standard of the institution (DAV College v. State of Punjab, 1971; Ahmedabad St. Xavier’s College v. State of Gujarat, 1974). History points to permissible regulation in the areas of laying down qualifications and conditions for service, maintaining sound standards of teaching and administration, and ensuring no maladministration. Interestingly, it was precisely this kind of regulation imposed by the RTE Act which was under challenge in Pramati. Further, the SC has ruled that labour legislation like the Industrial Disputes Act, 1947 may be validly imposed upon a minority educational institution so long as it does not take away the minority group’s right to administer the institution (Christian Medical College Hospital Employees’ Union v. Christian Medical College Vellore Association, 1987). In exempting minority educational institutions from the application of the RTE Act in its entirety, the court has ensured that a statutory scheme of maintaining educational and infrastructure standards is defeated.
Laissez Faire, but only in higher education
Without delving into the divergence on its philosophical underpinnings, there exists a difference in the judicial approach to higher and school education. In deciding minimum educational standards, there is good reason to generally allow greater regulatory oversight in cases concerning school education in contrast to higher education. Such regulation would of course be limited to the narrowly circumscribed areas described in the preceding section. This has not been given adequate weightage by the court. Further, in grounding its doctrinal justification for the minority group exemption in case law concerned with higher education, the court overlooks many of its previous decisions in, inter alia, Frank Anthony Public School Employees’ Association (1986), All Bihar Christian Schools Association (1988) and Modern School (2004), where it had allowed a considerable level of regulation over institutions imparting school education. In my opinion, these cases are representative of situations where larger policy objectives, derived from other rights contained in Part III of the Constitution, have trumped the right of minority groups to administer educational institutions. This approach of the SC should have informed the judgment rendered in Pramati.
A Possible Way Forward?
Following the judgment of the court in Pramati, a two judge bench of the SC on 9 May in a contempt petition initiated by J.K. Raju against the state of Andhra Pradesh (No.532 of 2013), asked the government to ensure the availability of drinking water facilities, separate toilets for boys and girls, and separate facilities for teaching and non-teaching staff. Significantly, the court cited Pramati as it reiterated that these directions would be applicable to both minority and non-minority institutions. The two judge bench chose the idiom of “basic human rights that enhance the atmosphere where the education is imparted” while justifying the need for these directions. While it is not entirely clear on what basis the court chose only drinking water and separate toilets as constitutive of a conducive atmosphere for learning, such facilities exist as general regulation as part of the RTE Act. A possible manner in which J.K. Raju and Pramati can be reconciled is by a reading down of the latter. This would mean that the ruling is interpreted as excluding minority administered educational institutions not from the ambit of the RTE Act in its entirety, but merely from the operation of the reservation rule embodied in section 12(1) (b) and (c). Such an interpretation would also ensure consistency with the object of Article 30(1) which seeks to preserve the minority character of an institution.