The Telegraph
Thursday , May 15 , 2014
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With respect to aided minority schools, the Right to Education Act required that like aided and unaided non- minority schools, they too must reserve 25 per cent of their seats for students from economically weak sections of the society (EWS), and provide them free education. In its latest judgment, Pramati Educational and Cultural Trust versus Union of India, the court has overruled its 2012 judgment in Society for Unaid- ed Private Schools of Rajasthan versus Union of India, where it had held that the above requirement did not violate Article 30 of the Constitution, which gives religious and linguistic minorities the right to “establish and administer institutions of their choice”. However, the bench in the Pramati case held that minority institutions, aided or unaided, could not be required to compulsorily admit non-minority students as this would destroy the minority character of such schools.

The Pramati judgment, I argue, errs in finding the Right to Education Act’s application to aided minority schools ultra-vires of Article 30. To see why, we must look at the history of the debate on the preservation of the minority character of institutions, and how this right is circumscribed once an institution receives aid. In particular, it is helpful to look at the debate on the clash between Article 30 and Article 29(2), which forbids discrimination on the basis of religion in admission to State-maintained or aided educational institutions.

In the 1958 Kerala education bill case, the court had argued that Article 29(2) read together with Article 30 implied that once a minority institution took aid from the State, it would require a “sprinkling of outsiders”. In St Stephen’s College versus University of Delhi (1991), the court reaffirmed the need for a harmonious reconstruction of the two articles, and declared that minority institutions must admit non-minority students once they drew aid from the State, but could reserve 50 per cent of their seats for members of their community.

Finally, in the most authoritative judgment on minority rights, the court declared in TMA Pai Foundation versus State of Karnataka (2002) that the principle laid down in the St Stephen’s case was correct, but no rigid limitation could be placed on the percentage of reservation to be allowed. Instead, the court left it to every state to frame its own policy on this matter based on relevant contextual factors. Two important lessons follow from the court’s approach in each case. First, that the receipt of State aid does affect a minority institution’s right in admitting students exclusively from its community. Second, the court also consistently holds that this fact must not entirely eliminate the minority character of that institution. A reconciliatory approach, therefore, must be found.

I wish to suggest that a similar reconciliation could have been attempted in dealing with competing claims of social justice for poor students, and minorities’ rights to maintain their institutions. Such reconciliation is possible in two ways. First, one might hold that minority institutions can continue to reserve, in accordance with each state’s policy, a fixed percentage of seats for members of their community. However, within the remaining seats, that must be left open to non-minorities, they must reserve 25 per cent for students belonging to the EWS category. Second, one could affirm that minorities can reserve seats as per the ratio determined by the state government, but within such a ratio, they must ensure that at least 25 per cent of the total seats are provided to poor students from their community. Both these approaches leave the minority character of institutions intact by leaving the right to reserve seats for students of one’s community untouched. Rather than excluding minority institutions from the RTE altogether, the court could have directed the government to adopt either one of these approaches.

The former provision might be criticized by poor non-minority parents, who would argue that such institutions are now made inaccessible through ‘double reservation’: for minorities, and then, for poor students. This complaint is particularly likely with respect to ‘sought-after’ minority institutions like elite convent schools, which would then be available to an even smaller fraction of non-poor, non-minority students. The latter, on the other hand, would be criticized by parents of minority students who do not belong to the EWS category. They might argue that this encroachment of minority reservation by EWS reservation means that a large number of them will not be able to find a place for their children in their own community’s schools. But we might respond that conceding to their demand would come at the expense of a poor minority student’s ability to obtain education in an institution established for his or her community.

On either approach, the minority character of an institution and poor students’ right to free education in aided schools is shielded from impact. Of course, the choice between either is an intensely political question, involving burdens on one party or another. Many arguments in this debate do not reach the court. Take, for instance, the notion that the admission of EWS students would be an affront to the ethos of elite minority schools. Or the argument that non-poor parents, either belonging to the minority or the non-minority would be adversely affected.

However, the choice that I have framed brings precisely these questions — common to the application of the RTE to other private schools — into focus, and removes the question of constitutional infirmity with respect to minority institutions from this debate. In a controversy that has knocked at the court’s door at every step, the elimination of the ‘constitutionality’ question is an important step towards a more forthright debate.