Editorial 1: RTE and minority schools
Context:
Two judges SC bench recently held that the previous judgment in Pramati Educational and Cultural Trust vs. Union of India (2014) was doubtful. In this case, SC had held that minority educational institutions established under Article 30 (1) is exempt from the provision of Right of Children to free and compulsory education Act, 2009(RTE Act)
TET case judgment:
- Two judges bench is hearing the case on whether TET should be made mandatory for teachers in minority institutions. It also included the question whether the non-minority in-service teachers who were appointed before RTE case into force, must pass the TET to be eligible for promotion or continue in the service.
- TET is the minimum qualification mandatory for teaching students from class 1 to 8.
- Bench has ruled that for non-minority schools, Teachers who have remaining period of service less than 5 years need not pass TET. However they need to pass it to be eligible for promotion. For those with period of service greater than 5 years, they need to pass TET mandatorily.
- For minority institutions, it referred the matter to the larger bench.
Criticism of Pramati ruling:
- Bench held this ruling as “disproportionate” because it struck down the application of entire RTE Act, mere based on the analysis of Section 12 (1) c. This section mandates all the school to reserve 25% of all the seats in class 1 for the students belonging to weaker sections and disadvantaged groups.
- This exemption created a sweeping conflict between Article 30 (1) which enables minorities to establish and administer their educational institutes, and article 21A which guarantees every child free education. Thus, exempting minority institutions from the RTE hampers the statutory benefits that flow from the fundamental right to free education.
- The bench held that Pramati judgment must be revisited to create a harmonious interpretation, so that rights under Article 30 (1) and 21 A must co-exist mutually.
Pramati Educational and Cultural Trust vs. Union of India (2014) Case:
- The case involved the validity of 86th Constitutional Amendment Act, 2002 and 93rd constitutional amendment act, 2005 which introduced fundamental rights under Article21 A and 15 (5) respectively.
- Under Article 21A education was made the fundamental right. Article 15 (5) allows the state to make special provisions for backward classes,, SCs, STs ,educational institutes including aided and unaided schools except the minority educational details.
- This judgment upheld the validity of both these amendments. It also ruled that it is considered as unconstitutional insofar as its application in minority institution under article 30 (1).
- It upheld that the minority character of these institutions must be protected. Application of RTE will destroy this lead to ‘abrogation’ of their fundamental right to “examine and establish institution of their choice” under article 30(1).
- The mandatory reservation of 25% seats of these institutes to admit children belonging to weaker and disadvantaged groups in neighborhood need not be of minority community. This may destroy its minority character.
RTE act:
- It guarantees free and compulsory education or children from 6 to 14 years of age. It also proposed that aided institution may provide free seats proportionate to the aid received by them.
- Private unaided schools are required to reserve 25% of seats for the children belonging to disadvantaged groups which will be refunded by the government.
- It also prescribes minimum pupil-teacher ratio, trained teachers, and infrastructure, bans corporal punishment and mandates all schools to promote free reduction.
- It is child- centric and not institution-centric. Right of children as an individual is greater than collective right of the group to run the institution. Thus, there was no need of exempting minority institutions from RTE.
Reasons for referring it to bigger branch:
- According to report by National Commission for Protection of Child Rights stated that only 8.7% children belong to disadvantaged group in minority community, and 62.5% of students belong to non-minority institution.
- This indicates that they are not serving as “minority institutes” and using these exemptions for motivated benefits.
- Many private groups and minority groups complained that mandatory 25% quota infringed on their rights and the law was challenged in court.
- In 2014, SC granted exemption to minority institution from RTE. It claimed that it may change their minority status.
- Following this judgment, many institutes sought minority status, some merely with token minority management to escape RTE compliance. They did not admit poor children from their own community and continued as elite institutes.
Way Forward:
Every child has right to life and dignity under article 21. Dignity means access to basic human needs including education. Our constitutional makers enshrined the free education as part of DPSP. Children right to free education is necessary to take benefit of demographic dividend India possesses. Also lifting this ban will help the disadvantage child from his community.