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Mainstream, VOL L, No 25, June 9, 2012

RTE Act, Minority Schools and Supreme Court Verdict

Tuesday 12 June 2012




The Supreme Court’s final verdict on April 12, 2011 on the Writ Petition (Civil) no. 95 of 2010 and 30 such other petitions, in almost two years with thirty day-long hearings, adjournments and arguments, has changed the way the RTE Act came into play.

The RTE Act has attempted to bring all primary schools under a universal umbrella of registration, regulation and standards. It has opened an opportunity for children of certain deprived sections of society to have an entry in the private schools, aided and unaided, by providing 25 per cent free seats in such schools. Initially, it didn’t make any distinction between the categories of schools, namely, Madrasa, Vedic/Sanskrit, Minority and Non-Minority schools, but soon after the enactment, Madrasas and Vedic/Sanskrit schools have been excluded from the purview of the Act by the government.

Then finally came the verdict of the Supreme Court, upholding the constitutionality of the RTE Act in respect of all categories of schools save the unaided minority primary schools, giving them an over-arching and absolute immunity. The SC order promoted the status quo for the existing as well as future unaided minority primary schools and the RTE Act for other primary schools.

The concern and questions around this verdict, surrounded by a series of doubts, is whether it has opened a new set of opportunities vis a vis the minorities of the country or whether it has done just the reverse.

It has closed the opportunity for such institutions to open up and interact with diversity, tolerance and co-existence, which is generally alleged against this section of schools by others, and has rather reinforced this allegation and put a ‘no-entry board’ for children from the ‘weaker sections’ and ‘disadvantaged groups’ in these schools, and even a bigger and complete disappointment for the children from the minority community studying in such unaided minority schools to have the benefits of the RTE Act in their schools.

THE Supreme Court has defined the permissible limits of regulation under Article 30 (1) of the Constitution, which is worth a mention here to understand this issue. In the Kerala Education Bill case (AIR 1958 SC 956), the Apex Court upheld the imposition of “reasonable regulations for the purpose of ensuring sanitation, competence of teacher, maintenance of discipline etc. as a condition of granting ‘aid or recognition’ to an institution covered by Article 30 (1)”. Further, in the Frank Antony Association vs Union of India case (AIR 1987 SC 311) and the GF College vs Agra University case (AIR 1975 SC 1821) the Court reiterated the above position and added “pay of teachers or qualification of governing bodies” within the regulation framework, and in Fr Thomas Shingare vs State of Maharashtra case (AIR 2002 SC 463) the Court generalised the extent of regulation and observed that “regulation can be made for ensuring excellence in education”.

It clearly empowers the government to regulate the unaided minority institutions in order to ensure excellence, quite in line with the intent and mandate of the RTE Act. If the condition for recognition to unaided minority schools is valid in the eyes of Constitution, then violation of such ‘conditions’ resulting in ‘withdrawal of recogni-tion’ as purported by Section 18 (3) should logi-cally be valid, and therefore the Apex Court’s interpretation of Section 18 (3) as a ‘threat to with-draw recognition’ runs counter to the above verdicts of the Apex Court.

Noteworthy, the Court itself ruled that this law is “a child-centric and not an institution-centric law” and further that “by admitting a non-member into a minority institution, it does not shed its character and cease to be a minority institution” but ultimately made an exception in favour of the school in question. Why was the ‘institution-centric’ and not ‘child-centric’ logic not applied in relation to the unaided minority primary schools?

This verdict will directly hit the children studying in those schools, their right to universal, compulsory and quality education will be no more justiciable at par with children studying in other schools, without any guarantee of access to schools with minimum infrastructure such as all-weather building; accessible and barrier-free school and class rooms; class rooms for each class, not the over-crowded class rooms; safe and adequate drinking water facilities; separate toilets for boys and girls; playground; library; a child friendly and caring environment; a school free from corporal punishment and abusive environment; adequate number of qualified teachers; minimum teaching hours; holistic curriculum; modern and scientific evaluation system and so on and so forth. It would also result in an unaccountable scenario for such schools, beyond the reach of law and regulations. It is depriving the deprived even further.

To conclude, was that the intent of the petitioners, when they challenged the RTE Act on ground of it being violative of Article 30 (1)?

A strange state of affairs indeed!

The author is a Senior Research Fellow, Centre for Study of Social Exclusion and Inclusive Policy, National Law School of India University, Bangalore.

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