New Delhi, Sept. 16: Enforcing the right to education law in minority institutions will be “unconstitutional”, India’s apex minority education watchdog has said, exposing a rift within the government on the applicability of the landmark legislation.

If implemented in minority education institutions, the Right of Children to Free and Compulsory Education Act would violate the Constitution, the National Commission for Minority Educational Institutions (NCMEI) has said.

“We welcome the law for the nation, but the commission has taken a position that implementing it in minority educational institutions would be unconstitutional, and would violate Supreme Court rulings and the NCMEI’s own guidelines,” Sister Jessy Kurien, a member of the NCMEI, told The Telegraph.

This is the first time that fissures have appeared within key government agencies over the applicability on minority education institutions of the law passed by Parliament in its last session.

The commission reports to the human resource development ministry headed by Kapil Sibal, who has argued that the right to education law does not violate minority rights guaranteed under the Constitution.

Sibal had said he wanted to implement the law from the next academic session.

Under Article 30 of the Constitution, minorities are allowed to run and administer their own education institutions, without any government interference except in cases of alleged corruption.

This understanding of the article has been upheld by the Supreme Court.

The UPA, in earlier laws like the legislation to enforce OBC quotas in higher education, had specifically exempted institutions covered under Article 30.

But the right to education law does not exempt minority institutions, as was reported by The Telegraph on December 13, 2008.

The law requires all schools to reserve at least 25 per cent seats for economically and socially weak children.

This quota, if implemented in minority schools, will constitute a violation of Article 30, said Kurien.

Sibal has argued that the quota can be used by minority institutions to assist backward or poor students of their own community.

But Kurien argued that this too would constitute a violation of the law.

“The commission,too, believes that minority institutions should come forward and help their community. But any decision by an institution to reserve seats must be purely voluntary. They cannot be bound under this law,” she said.

NCMEI sources also pointed to what they called a deeper “inconsistency” between their rules and the right to education law.

A section in the law — requiring that 75 per cent of a school’s management committee consist of guardians or parents of students — violates the commission’s guidelines for granting minority status to institutions, they argued.

NCMEI guidelines require that the majority of management members of an institution must belong to a particular minority community for that institution to be eligible for minority status.

As students at many missionary and other minority schools belong to all religions, forming the school management committee according to the right to education law could mean giving up minority status, NCMEI sources said.

Sibal, a lawyer, finds himself up against other legal experts and commentators in this debate with the NCMEI.

The commission is headed by Justice M.S.A. Siddiqui, a retired judge of Delhi High Court. Kurien is herself a lawyer and had recently published a book on legal education in schools.

Sibal had to out-shout UPA ally Asauddin Owaisi in the Lok Sabha during the debate on the right to education bill after the Hyderabad MP alleged that it violated the law.

But the opposition from the NCMEI to the law’s application on minority institutions is likely to prove harder for Sibal to bypass as minority perceptions are viewed by the Congress as critical to its fortunes.

The commission was set up in 2004 by the UPA after it first came to power with the specific task of protecting minority rights in the field of education.