The 2012 Amendment to RTE Act

This is a short post guided by a discussion that happened on Twitter on whether the UPA Government was pro-actively working towards keeping minority educational institutions out of the purview of the RTE Act.

In 2012, on April 12, the Supreme Court pronounced its judgement in the Unaided Private Schools of Rajasthan v Union of India case and declared that “unaided minority educational institutions” are outside of the purview of the RTE Act.

This however meant that the RTE Act was applicable to aided minority institutions. The thinking in the political circles, based on the interpretation of the judgement was that the hierarchical order of Article 29/30 and the RTE Act was not clear (my assessment of the understanding).

Within 12 days, on 24 April 2012, the Rajya Sabha passed an amendment Act to RTE that was in the works since 2 years then. The original amendment Act and the report of the Statutory Committee did not have any amendment planned for Section 1 of the Act. However, immediately after that above referred judgement, the UPA Government added an amendment clause and inserted Section 1(4) into the Act. The clause says the following

[(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
(5) Nothing contained in this Act shall apply to Madras as, Vedic Pathsalas and educational institutions primarily imparting religious instruction.]

I am reproducing the entire speech of the then MHRD minister Kapil Sibal on the floor of the Rajya Sabha made on 24th April 2012 with respect to the above clause insertion. It leaves no one in doubt what the UPA Government wanted.

“Now, I come to the issue of minority institutions. The Supreme Court Judgement has come. It makes it very clear in view of provision of 29 and 30 of the constitution, unaided minority institutions will not be governed by the provisions of this Act. In terms of section 1(4), the provisions of this Act shall apply to conferment of rights on children to free and compulsory education. Subject to the provisions of Articles 29 and 30 of the Constitution. So, this is subject to Articles 29 and 30. The Supreme court has declared the law under Articles 29 and 30 and clearly said that unaided private institutions are not governed by the provisions of this Act. That clarity is given by the Supreme Court. That law cannot be changed. That’s the final verdict of the Supreme Court. But, aided institutions are covered. Now, under this amendment, even in aided institutions, the school management committees will not be governing the minority institutions. They will only have an advisory function. Therefore, we have made a departure. Whereas under the Supreme Court judgment, aided institutions will be governed by school management institution by virtue of this amendment, we have said that aided institutions will not be covered. They will have only an advisory capacity. So, in a sense, we have moved two steps further to protect the interests of the minority institutions. So, Adeebji, I would request you that please be assured that we are extremely sensitive to the concerns of the minority community. If you walk two steps, we will walk ten steps in order to make sure that their interests are fully protected. The UPA government, the UPA Chairperson and our Prime Minister are always extremely concerned about this”

Edit: (28th March 2017 – Adding Kapil Sibal’s comments in the Lok Sabha during the discussion on this amendment bill)

“The other set of objections was raised by distinguished members of the minority community.  They had said that the Act did not have any article and any clause which indicated that this Act was subject to the rights of the minority communities under Articles 29 and 30 of the Constitution.  Though, I believe that this is implicit because the Constitution of India and the provisions therein overwrite any legislation as also it is a constitutional provision.   So, any legislation passed by Parliament is subject to Articles 29 and 30 of the Constitution.  It is given.  Yet, the Committee thought that it should be prescribed for and incorporated in the Act.  This suggestion was also accepted by us.  Therefore, we moved an amendment Bill.  It was referred to the Standing Committee on 16th April, 2010.

….

  Sir, this is one set of amendments that I seek the approval of the distinguished Members of this august House from. The other, of course, is the demand of the minority community who suggested that we should incorporate in this amendment Bill specific references to articles 29 and 30 of the Constitution. We have, therefore, added in Section 1(a), clause 4 and 5 and I will read those. Clause 4 says:

‘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.’

Clause 5 says:

‘Nothing contained in this Act shall apply to Madrasas, Vedic Pathshalas educational institutions primarily imparting religious instructions.’

This also came about because many of the Madrasas do not impart religious instructions and there was also a demand from the Vedic Pathshalas as well as Madrasas that we should keep both Madrasas and Vedic Pathshalas out of the ambit of this Act and then, of course, incorporate articles 29 and 30 specifically in the amendment provisions. This is what we have done.

In the context of that we have made another amendment in Section 21. As you know that under the original Act School Management Committees were to be set up and the School Management Committees were to decide on the developmental plans of the school. The decision making was in the School Management Committees. माइनोरटीज़ की तरफ से यह भी मांग आई कि जो माइनोरटीज इंस्टीटय़शंस हैं, आर्टिकल 29 और 30 के अंतर्गत उन्हें अख्तियार नहीं होना चाहिए कि वे निर्णय लें, चाहे वह डवलपमेंट प्लान में निर्णय हो या कोई और हो, इसलिए माइनोरटीज इंस्टीटय़ूशंस को इसके बाहर रखना चाहिए। हमने समझा कि यह मांग सही है और वह हमने मान ली। अब तो सुप्रीम कोर्ट का भी फैसला आ गया है।  On the 12th of April, 2012 the Supreme Court also rendered a decision in which the Supreme Court said that no provisions of this Act will apply to unaided minority educational institutions. So, to that extent, the Supreme Court clarified and severed those provisions of the Act which apply to unaided minority institutions. But the Supreme Court also said that as far as aided institutions are concerned, it will have full application. In that context, I might just mention to the distinguished Members of this House that I had already moved an amendment in Section 21 where I have said, proviso to sub-Section (ii), provided that the School Management Committee constituted under sub-Section 1(a) a school established and administered by minority whether based on religion or language and all other aided schools as defined in sub-Section (2) shall perform advisory function only. 

So, what we have said is that, as far as minority institutions which are aided or even otherwise aided institutions are concerned, the School Management Committee shall only perform advisory functions.”

Summing up UPA’s minority appeasement in Kapil Sibal’s own words – “If you walk two steps, we will walk ten steps

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