Insights into Editorial: Harmonising RTE with minority schools
05 July 2016
Setting aside Supreme Court’s judgment on RTE, the Kerala High Court, in a remarkable verdict in June 2016, ruled that Section 16 of the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act), that mandates schools to not detain any child before s/he completes elementary education, is applicable to minority educational institutions as well (Sobha George v. State of Kerala).
What is Right to Education (RTE)?
The Constitution (Eighty-sixth Amendment) Act, 2002 inserted Article 21-A in the Constitution of India to provide free and compulsory education of all children in the age group of six to fourteen years as a Fundamental Right in such a manner as the State may, by law, determine.
- The Right of Children to Free and Compulsory Education (RTE) Act, 2009, which represents the consequential legislation envisaged under Article 21-A, means that every child has a right to full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards.
- Article 21-A and the RTE Act came into effect on 1 April 2010. With this, India moved forward to a rights based framework that casts a legal obligation on the Central and State Governments to implement this fundamental child right as enshrined in the Article 21A of the Constitution, in accordance with the provisions of the RTE Act.
- It is seen as the most historic development in universalisation of elementary education in the country. It implies that every child in the age group of 6 to 14 years has Right to elementary education. They are entitled for free and compulsory education.
- The RTE Act provides for the Right of children to free and compulsory education till completion of elementary education in a neighbourhood school.
- It clarifies that ‘compulsory education’ means obligation of the appropriate government to provide free elementary education and ensure compulsory admission, attendance and completion of elementary education to every child in the six to fourteen age group. ‘Free’ means that no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education.
- It makes provisions for a non-admitted child to be admitted to an age appropriate class.
- It specifies the duties and responsibilities of appropriate Governments, local authority and parents in providing free and compulsory education, and sharing of financial and other responsibilities between the Central and State Governments.
- It lays down the norms and standards relating inter alia to Pupil Teacher Ratios (PTRs), buildings and infrastructure, school-working days, teacher-working hours.
- It provides for rational deployment of teachers by ensuring that the specified pupil teacher ratio is maintained for each school, rather than just as an average for the State or District or Block, thus ensuring that there is no urban-rural imbalance in teacher postings. It also provides for prohibition of deployment of teachers for non-educational work, other than decennial census, elections to local authority, state legislatures and parliament, and disaster relief.
- It provides for appointment of appropriately trained teachers, i.e. teachers with the requisite entry and academic qualifications.
Supreme Court’s judgment:
The Supreme Court had exempted minority schools from the purview of the RTE Act in Pramati Education and Cultural Trust v. Union of India (2014). The court had observed that the Right to Education (RTE) Act is not be applicable to aided or unaided minority schools.
High Court’s view:
However, the High Court located this obligation not in the Act but under Article 21 of the Indian Constitution, which guarantees right to life and liberty. It ruled that no-detention policy (NDP) is in the “best interest” of the child and could independently be considered a fundamental right.
Significance of High Court’s judgment:
The significance of the Sobha George verdict lies not only in making certain provision of the RTE Act applicable to minority schools but the strategy employed for this. The courts reasons: “RTE Act has no application in a minority school, whether aided or unaided. However, the Court has to examine whether Section 16 of RTE Act is a mere statutory right or can be treated as a fundamental right expressed in the form of statutory provision.” A key takeaway from this judgment is the recognition that certain provisions of the RTE Act have a universal appeal, even if the Act lacks it. However, it is completely within judicial discretion to determine which provisions are these.
The Pramati judgment was erroneous on two counts.
- First, it failed to notice that besides the 25% 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. Far from annihilating the ‘minority character’, these provisions benefit both the students and community.
- Second, it did not consider the fact that the government-aided minority schools stand on a different footing from their unaided counterparts and are more amenable to regulations than the latter.
Are rights guaranteed under Article 30 absolute?
The generic scope of right to education seems to conflict with the specific contexts of the rights of minorities to establish and administer educational institutions of their choice under Article 30. That right, however, is not absolute. Freedom to ‘administer’ a school cannot include ‘mal-administering’ it. Regulations for maintaining academic standards, ensuring proper infrastructure, health and sanitation, etc. could be imposed on minority schools as well. Further, a government-aided minority school cannot discriminate against students on grounds of religion, race, caste, language in the matters of their admission (Article 29(2)).
The Sobha George judgment opens possibilities of applying different provisions of the RTE Act on minority schools through the Article 21 route. It also simultaneously forces a rethink on the role of judicial precedents.
- However, two contrasting judgments on the same issue have made the overall position of law unclear. The Sobha George case may immediately benefit thousands of children in Kerala, yet conflicting judgments adversely affect realisation of rights of all children equally.
- Therefore, a ‘constitutionally-permissible balance’ between right to education and minority rights requires an interpretation that makes them mutually reinforcing rather than irreconcilable.
What needs to be done now?
The Supreme Court has to re-examine the positive and the negative aspects of educational rights of minorities and appreciate the special case for guaranteeing right to elementary education universally and equitably.
The problem with a judgment like Pramati is that for the issues it addresses, it either can overstay or is overruled. It might also lead to judicial conflicts and confusions. Hence, it is the responsibility of the Supreme Court to thoroughly re-examine the issue.