The Design of RTE – Part II

In the first part of the writeup, we had seen how the RTE Act was constructed to ensure complete autonomy to minority educational institutions with regard to admission of students.

In this part, we will attempt to decipher how the RTE Act aims to achieve the same with regard to administration of the institutions.

Unlike the interpretations of the judiciary with regard to admissions, which were mostly in favor of the minorities, the courts delivered mixed opinion on the issue of administration. While always holding that the administration must remain firmly with the minority management, they kept introducing clauses on what aspects of the administration the State could have a say in.

In Kerala Education Bill, 1957, the Supreme Court made some strong remarks about the extent of freedom the minority management can get.

The right to administer cannot obviously include the right to mal-administer.

It stands to reason, then, that the constitutional right to administer an educational institution of their choice does not necessarily militate against the claim of the State to insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of the institutions to be aided

In St Xavier’s College vs State of Gujarat, 1974, a 9 judge bench of the Supreme Court went a step further and defined elements of administration where the State can have a stake.

Prescription of standards for educational institutions does not militate against the right of the minority to administer the institutions. Regulations made in the. true interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed

The right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not an absolute right. This right is not free from regulation. Just as regulatory measures are necessary for maintaining the educational character and content of minority institutions, similarly regulatory measures are necessary for ensuring orderly, efficient and sound ad-ministration.

The right to administer is to be tempered with regulatory measures to facilitate smooth administration. The best administration will reveal no trace or colour of minority.

A similar stream of interpretation was seen in multiple observations in TMA Pai Foundation vs State of Karnataka, 2002 as well.

The right under Article 30(1) cannot be such as to override the national interest or to prevent the government from framing regulations in that behalf. It is, of course, true that government regulations cannot destroy the minority character of the institution or make the right to establish and administer a mere illusion; but the right under Article 30 is not so absolute as to be above the law

The right under Article 30(1) has, therefore, not been held to be absolute or above other provisions of the law, and we reiterate the same.

In P A Inamdar vs State of Maharashtra, 2005, the Supreme Court almost formalized the mechanism by coming up with a “triple test” (actually, it was first created in TMA Pai J)to determine whether a law intended to be made applicable to minority institutions qualifies for the same.

Subject to reconciliation of the two objectives, any regulation accompanying affiliation or recognition must satisfy the triple tests: (i) the test of resonableness and rationality, (ii) the test that the regulation would be conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it, and (iii) that there is no in-road on the protection conferred by Article 30(1) of the Constitution, that is, by framing the regulation the essential character of the institution being a minority educational institution, is not taken away

The ground lay very clear that, as long as certain criteria were met, the State could impose administrative conditions and rules on minority institutions as well. For the #IOI, this HAD to be overcome.

I firmly believe that the nature and composition of the RTE Act is extremely well thought out and deliberate in the way it is crafted. The intention was to piggy-back on the strength of the laws governing admission, i.e Article 30 and Article 15(5), to push through laws governing administration, and remove it from the scope of applicability.

  • Therefore, even though the stated objective of the RTE Act is along the lines of admission of students of unprivileged communities, the actual content of the Act is heavily loaded with almost all aspects of administration. In fact in the entire RTE Act, there are more sections on administration than on admission.
  • During the framing of the 93rd Amendment, the authors made sure the potential conflict with Article 30 was handled by explicitly coding in the exception to minority educational institutions. However, in the entire RTE Act, the very same authors did not include enough “exceptions” to any of the sections. For e.g. in Section 18 of the Act, there could easily have been clarification on the procedure to obtain recognition for minority schools.
  • Of course, as part of the 2010 Amendment to the RTE Act, some references to minority schools were added. However, this was clearly because the SC had included aided minority institutions into the purview of RTE in its April 2012 judgement in Unaided Private Schools of Rajasthan vs Union of India.

With such a heavy inter-twining of the various aspects of school management, the authors ensured that the Law of Severability can never be applied to the RTE Act. In other words, if certain (objectionable or invalid) parts of the Act were to be removed, the entire Act itself would become invalid or illogical. It therefore becomes a “whole or nothing” scenario.

IMHO, one of the prime goals of the way in which the RTE Act was framed was to ensure that the Act can never pass the Test of Severability.

And the authors tasted success on this count in Unaided Private Schools of Rajasthan vs Union of India, 2012.

With hardly any detail about the reasons, the Supreme Court, in this particular judgement, held that the RTE Act failed the test of Severability and hence it cannot be applied to unaided minority institutions.

However, the said 2009 Act and in particular Sections 12(1)(c) and 18(3) infringes the fundamental freedom guaranteed to unaided minority schools under Article 30(1) and, consequently, applying the R.M.D. Chamarbaugwalla v. Union of India [1957 SCR 930] principle of severability, the said 2009 Act shall not apply to such schools.

In the Pramati vs UOI Judgement of 2014, the Supreme Court went the last mile and declared that due to the very same test of severability failure, the RTE Act won’t apply to aided minority schools as well!

What this meant was that due to the condition of either the whole Act or none of it being applicable, all the sections of the Act which correspond to administration of schools also are inapplicable to minority educational institutions. In a round about fashion, the minority schools have earned themselves complete autonomy!

The Design of RTE – Part I

I would strongly recommend reading this article by Realitycheck India as compulsory reading before you venture further down this article.

There were two distinct parts to the RTE agenda that was pursued by the IOI brigade

  • Admission of students into minority educational institutions
  • Administration of the minority educational institutions

In this part, I hope to trace the route used by the RTE Architects to permanently seal the deal with regard to admission of students.

The Supreme Court, in the 50+ years before RTE was enacted, had passed several judgements and observations that made it quite clear that the Government cannot have too much of a say in determining who got into a minority educational institution.

Very early in 1957, while commenting on the Kerala Education Bill, a 7 Judge bench made the following observation.

The real import of Art. 29(2) and Art. 30(1) seems to us to be that they clearly contemplate a minority institution with a sprinkling of outsiders admitted into it. By admitting a non-member into it the minority institution does not shed its character and cease to be a minority institution.

The above judgement made it clear that minority educational institutions can admit non-minority students.

In W Proost v State of Bihar, 1969, the SC made it clear that the minority status of the institution will not be affected at all, even if students from the majority or any other communities were admitted.

This choice is not limited to institution seeking to conserve language, script or culture and the choice is not taken away if the minority community having established an educational institution of its choice also admits members of other communities.

In TMA Pai Foundation & Others vs State of Karnataka, 2002, the SC went further and said that it is not possible, or is not required, to determine a proportion of minority vs majority students for the minority institution to retain its minority character.

The best possible way is to hold that as long as the minority educational institution permits admission of citizens belonging to the non-minority class to a reasonable extent based upon merit, it will not be an infraction of Article 29(2), even though the institution admits students of the minority group of its own choice for whom the institution was meant. What would be a reasonable extent would depend upon variable factors, and it may not be advisable to fix any specific percentage

Thus far, minority educational institutions got the following advantages

  1. The right to admit non-minority students
  2. The safe-guard of their minority status not being taken away under any circumstance
  3. The right to admit any percentage of non-minority students.

However, in the same TMA Pai Foundation & Others vs State of Karnataka judgement, one roadblock came up with regard to student admissions.
The Supreme Court, while commenting on the right of the Government to have a say in admission of students to *aided* institutions, both minority and non-minority students, made some observations as below.

At the same time, the admissions to aided institutions, whether awarded to minority or non-minority students, cannot be at the absolute sweet will and pleasure of the management of minority educational institutions

…..

It would be open to the state authorities to insist on allocating a certain percentage of seats to those belonging to weaker sections of society, from amongst the non-minority seats.

The above 2 observations made it clear that if the State were to introduce any welfare measure that involved reservation of seats for welfare categories, the same would be applicable to aided minority institutions.

In my honest opinion, the genesis of the 93rd Amendment lies in the above judgement of the Supreme Court.

By explicitly keeping minority institutions out of social welfare responsibilities, the 93rd amendment made sure that these institutions would not have to reserve seats, *even from amongst the non-minority seats*.

The 93rd amendment is produced below for easy reference. Notice the reference to both aided AND unaided minority institutions.

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

After the 93rd Amendment became a reality, the UPA government brought in the RTE Act in 2009.

However, it is interesting to note that in the original RTE Act passed by Parliament there was no explicit reference to the 93rd Amendment or Articles 29 and 30. Perhaps the IOI brigade felt that there was enough link between the two already.

However, in Unaided Private Schools of Rajasthan v Union of India, 2012, a 3 judge bench of the Supreme Court, due to the lack of direct mention of the 93rd Amendment (IMO), held that the RTE act was not applicable ONLY to UNAIDED minority educational institutions.

However, when we come to aided minority schools we have to keep in mind Article 29(2). As stated, Article 30(1) is subject to Article 29(2).

……

It is enacted pursuant to Article 21A. Applying the above tests, we hold that the 2009 Act is constitutionally valid qua aided minority schools.

Clearly, this was a big setback to the IOI agenda who wanted to ensure that the entire gamut of minority institutions were outside the purview of RTE.

The solution that was engineered was another amendment to the RTE Act, the Amendment Act of 2010.

This amendment added a new provision into Section (1) of the Act, bringing in a direct and explicit reference to Articles 29 and 30.

(4) Subject to the provisions of articles 29 and 30 of the Constitution, the provisions of this Act shall apply to conferment of rights on children to free and compulsory education

The Unaided Private Schools of Rajasthan judgement came in April 2012. The UPA Government amended the RTE Act in June 2012, within just two months!

This amendment meant that the RTE Act was subservient to Article 29, and, specifically, to Article 30. And note that Article 30 does not make any distinction between aided and unaided minority educational institutions.

Further, Article 15(5) i.e the 93rd Amendment ensured that the State cannot impose students on aided and unaided minority institutions.

Therefore, soon after this, in 2014, in Pramati vs Union of India, the Supreme Court held that RTE would NOT apply to unaided or aided minority educational institutions!

In our view, if the 2009 Act is made applicable to minority schools, aided or unaided, the right of the minorities under Article 30(1) of the Constitution will be abrogated. Therefore, the 2009 Act insofar it is made applicable to minority schools referred in clause (1) of Article 30 of the Constitution is ultra vires the Constitution

So that is where RTE stands today! With regard to the aspect of admission of non-minority students into their institutions. Total immunity from having to reserve seats for EWS/DG students even when they can admit any percentage of non-minority students under the regular category!

In the next part, we will try to analyze how the RTE was also designed to ensure that the minority institutions are completely out of the ambit of Govt regulations, from an administration point of view.

Article 29(2) of the Indian Constitution – The Genesis and Purport

A look at how Article 29(2) of the Indian Constitution took shape gives some great insights into the intention that the Authors of our Constitution had, in providing certain protection for the minorities.

This is of interest to us given how the sectarian laws in education are taking shape in India today.

RTE – being the most prominent of such laws.

Articles 29 and 30 of the Constitution were originally constructed and debated under Draft Article 23 of the Constituent Assembly. The original Article 23(2) was as below.

No minority whether based on religion, community or language shall be discriminated against in regard to the admission of any person belonging to such minority into any educational institution maintained by the State”

An amendment to this clause was introduced by Pandit Thakur Das Bhargava and he proposed that the following be substituted

“No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them”

This modified clause Article 23(2) subsequently became Article 29(2) and remains in almost the same form even today.

The key difference between the original clause and the amended clause is that it has been made applicable to any citizen of India, instead of the original target of just minorities. The Article guarantees that no citizen shall face discrimination based on religion, caste etc when getting into any educational institution.

When this amendment was introduced in the Constituent Assembly (on the 8th of December 1948), Pandit Bhargava gave an excellent speech and highlighted some key reasons why this clause must not be specific to minorities alone. The reasoning given in that speech is an indication of the line of thinking that our founding fathers had with respect to the treatment of minorities, their rights and duties.

Some key statements from the speech of Pandit Bhargava is produced below.

“Now if we read Clause (2) it would appear as if the minority had been given certain definite rights in this clause, whereas the national interests require that no majority also should be discriminated against in this matter”

Unfortunately, there is in some matters a tendency that the minorities as such possess and are given certain special rights which are denied to the majority

“It was the habit of our English masters that they wanted to create discriminations of this sort between the minority and the majority. Sometimes the minority said they were discriminated against and on other occasions the majority felt the same thing”

“This amendment brings the majority and the  minority on an equal status”

In educational matters, I cannot understand, from the national point of view, how any discrimination can be justified in favour of a minority or a majority

“Therefore, what this amendment seeks to do is that the majority and the minority are brought on the same level. There will be no discrimination between any member of the minority or majority in so far as admission to educational institutions are concerned

“So I should say that this is a charter of the liberties for the student-world of the minority and the majority communities equally”

(Even a cursory reading of the above leaves one in no doubt that the authors of our Constitution viewed both majority and minority on equal terms when it comes to opportunities in educational institutions)

When the various amendments proposed for Article 23 came up for adoption, the leader of the Constituent Assembly, Dr B R Ambedkar replied to the debates and accepted only 2 main modifications to the original draft article.

The amendment proposed by Pandit Bhargava was accepted by Dr B R Ambedkar. In fact it was accepted in toto!!

Here is the statement of Dr B R Ambedkar

Sir, of the amendments which have been moved to article 23, I can accept amendment No. 26 to amendment No. 687 by Pandit Thakur Dass Bhargava. I am also prepared to accept amendment No. 31 to amendment No. 690, also moved by Pandit Thakur Dass Bhargava.”

With this in mind, we can draw 2 conclusions

  1. The 93rd amendment to the Indian Constitution which inserts clause (5) to Article 15 of the Constitution giving immunity to minority institutions regarding admission to educational institutions goes orthogonal to the very intention of the makers of the Constitution with respect to Article 29(2) of the Constitution.
  2. The interpretation of the Supreme Court vide Pramati vs Union of India in declaring that the whole of the RTE Act will not apply to minority educational institutions, both aided and unaided, once again goes against the principles based on which the makers of our Constitution drafted and adopted Articles 29 and 30.