<p>The judgment of the honourable Supreme Court on the validity of the Right of Children to Free and Compulsory Education Act, 2009( Right to Education Act) and applicability of section 12(1)(c) is a mixture of joy and disappointment – joy because the validity of the Act has been upheld by the apex court and disappointment is due to non-inclusion of unaided minority institutions under 12(1) (c). <br /><br /></p>.<p>As per the majority judgment by the bench headed by honourable Chief Justice S H Kapadia, Justice K S Radhakrishna and Justice Swatanter Kumar J J, “the validity of the Right of Children to Free and Compulsory Education Act, 2009 is constitutionally valid and shall apply to the following: (i) a school established, owned or controlled by the appropriate government or a local authority; (ii) an aided school including aided minority school(s) receiving aid or grants to meet whole or part of its expenses from the appropriate government or the local authority; (iii) a school belonging to specified category; and (iv) an unaided non-minority school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority. However, the said 2009 Act and in particular Sections 12(1)(c) and 18(3) infringes the fundamental freedom guaranteed to unaided minority schools under Article 30(1) and, consequently, applying the R M D Chamarbaugwalla v. Union of India [1957 SCR 930] principle of severability, the said 2009 Act shall not apply to such schools”<br /><br />In essence, the unaided minority institutions are outside the purview of the Right to Education Act. This part of the judgment throws a lot of questions for debate. Without getting into the nitty-gritty’s of the law, as a common citizen of this country, I would like to pose the following concerns in relation to the honourable apex court judgment.<br /><br />Firstly, the non-inclusion of unaided minority institution into the orbit of the Right to Education Act creates more segregation and gaps in the present education system and leads to a kind of cold war between ‘minority’ and ‘non-minority’ institutions. In a way, the honourable apex court has allowed minority institutions to continue their education business relentlessly without any checks and balances. Further, the quantum of unaided minority schools exempted from 12 (1) (c) is not ‘minority’ in the true sense because in all major cities, majority of the unaided institutions are ‘minority’ institutions; based on either religion or language .<br /><br />Secondly, as a lay person, if we go by Article 30(1) in the Constitution, the minorities have the right to establish and administer educational institutions. On several occasions in the past, the honourable Supreme Court, while dealing with the provision opined that right to establish and administer educational institutions does not mean maladministration that could defeat the very object of Article 30 (1) (All Saints High School v. Government of Andhra Pradesh,1980). <br /><br />Defeating the purpose<br /><br />Thirdly, in my opinion, at the time of framing the constitution, this fundamental right was provided to minorities in order to protect and promote the educational right of minority groups considering political, social and cultural sensitivity at that point of time. But in reality, today the significant number of students studying in minority institutions belong to majority groups. There may be a small percentage of children from that specific minority religion but again they are from the upper strata of that religious group. Moreover, in practice these schools receive hefty fees and donations from students. In fact, while using the tag of ‘minority institution’, they are actually opening basic education to business beyond philanthropy that may defeat the original intention of the Constitutional provision.<br /><br />Fourthly, from a sociological point of view, minority institutions are not islands themselves .They are an integral part of the mainstream society. These unaided minority institutions are enjoying the benefits of getting land for concessional rate from the government and subsidies for other facilities like water, electricity, land tax etc. Hence, these institutions are not purely unaided minority institutions. More fundamentally, these institutions are not created to propagate any religion but to augment the educational cause of their community which has in recent years transformed into profit making. This being the reality, the minority tag for these schools is an easy escape from the provisions of RTE Act and their societal obligation to supplement the state core obligation to ensure fundamental right to education for all children . <br /><br />Finally, what is worrisome is that as a result of the honourable court verdict, in future, all upcoming schools may use all possible ways and means to get shelter under the ‘minority’ tag either based on religion or language. Taking shelter under linguistic minority may be much easier to escape from the RTE Act.<br /><br />In a nutshell, after the apex court verdict, we are only left with other non-minority institutions that include a small number of prestigious but many chota-mota mediocre unaided institutions where we can enforce minimum 25 per cent seats for marginalised children. These institutions may even volunteer to implement 25 per cent because the state will reimburse the fee on the basis of per child cost in government schools. In effect, it further accelerates the privatisation process leading to collapse of the idea of building a national system of education based on neighbourhood school principle rooted in the Common School System as envisaged in the 1968, 1986 ( as modified in 1992) policy. It is a great setback for the current debate across the nation to move towards building a national system of education based on CSS to uphold the core principles of the Constitution.<br /><br /><em>(The writer is with the National Law School of India University, Bangalore)</em></p>
<p>The judgment of the honourable Supreme Court on the validity of the Right of Children to Free and Compulsory Education Act, 2009( Right to Education Act) and applicability of section 12(1)(c) is a mixture of joy and disappointment – joy because the validity of the Act has been upheld by the apex court and disappointment is due to non-inclusion of unaided minority institutions under 12(1) (c). <br /><br /></p>.<p>As per the majority judgment by the bench headed by honourable Chief Justice S H Kapadia, Justice K S Radhakrishna and Justice Swatanter Kumar J J, “the validity of the Right of Children to Free and Compulsory Education Act, 2009 is constitutionally valid and shall apply to the following: (i) a school established, owned or controlled by the appropriate government or a local authority; (ii) an aided school including aided minority school(s) receiving aid or grants to meet whole or part of its expenses from the appropriate government or the local authority; (iii) a school belonging to specified category; and (iv) an unaided non-minority school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority. However, the said 2009 Act and in particular Sections 12(1)(c) and 18(3) infringes the fundamental freedom guaranteed to unaided minority schools under Article 30(1) and, consequently, applying the R M D Chamarbaugwalla v. Union of India [1957 SCR 930] principle of severability, the said 2009 Act shall not apply to such schools”<br /><br />In essence, the unaided minority institutions are outside the purview of the Right to Education Act. This part of the judgment throws a lot of questions for debate. Without getting into the nitty-gritty’s of the law, as a common citizen of this country, I would like to pose the following concerns in relation to the honourable apex court judgment.<br /><br />Firstly, the non-inclusion of unaided minority institution into the orbit of the Right to Education Act creates more segregation and gaps in the present education system and leads to a kind of cold war between ‘minority’ and ‘non-minority’ institutions. In a way, the honourable apex court has allowed minority institutions to continue their education business relentlessly without any checks and balances. Further, the quantum of unaided minority schools exempted from 12 (1) (c) is not ‘minority’ in the true sense because in all major cities, majority of the unaided institutions are ‘minority’ institutions; based on either religion or language .<br /><br />Secondly, as a lay person, if we go by Article 30(1) in the Constitution, the minorities have the right to establish and administer educational institutions. On several occasions in the past, the honourable Supreme Court, while dealing with the provision opined that right to establish and administer educational institutions does not mean maladministration that could defeat the very object of Article 30 (1) (All Saints High School v. Government of Andhra Pradesh,1980). <br /><br />Defeating the purpose<br /><br />Thirdly, in my opinion, at the time of framing the constitution, this fundamental right was provided to minorities in order to protect and promote the educational right of minority groups considering political, social and cultural sensitivity at that point of time. But in reality, today the significant number of students studying in minority institutions belong to majority groups. There may be a small percentage of children from that specific minority religion but again they are from the upper strata of that religious group. Moreover, in practice these schools receive hefty fees and donations from students. In fact, while using the tag of ‘minority institution’, they are actually opening basic education to business beyond philanthropy that may defeat the original intention of the Constitutional provision.<br /><br />Fourthly, from a sociological point of view, minority institutions are not islands themselves .They are an integral part of the mainstream society. These unaided minority institutions are enjoying the benefits of getting land for concessional rate from the government and subsidies for other facilities like water, electricity, land tax etc. Hence, these institutions are not purely unaided minority institutions. More fundamentally, these institutions are not created to propagate any religion but to augment the educational cause of their community which has in recent years transformed into profit making. This being the reality, the minority tag for these schools is an easy escape from the provisions of RTE Act and their societal obligation to supplement the state core obligation to ensure fundamental right to education for all children . <br /><br />Finally, what is worrisome is that as a result of the honourable court verdict, in future, all upcoming schools may use all possible ways and means to get shelter under the ‘minority’ tag either based on religion or language. Taking shelter under linguistic minority may be much easier to escape from the RTE Act.<br /><br />In a nutshell, after the apex court verdict, we are only left with other non-minority institutions that include a small number of prestigious but many chota-mota mediocre unaided institutions where we can enforce minimum 25 per cent seats for marginalised children. These institutions may even volunteer to implement 25 per cent because the state will reimburse the fee on the basis of per child cost in government schools. In effect, it further accelerates the privatisation process leading to collapse of the idea of building a national system of education based on neighbourhood school principle rooted in the Common School System as envisaged in the 1968, 1986 ( as modified in 1992) policy. It is a great setback for the current debate across the nation to move towards building a national system of education based on CSS to uphold the core principles of the Constitution.<br /><br /><em>(The writer is with the National Law School of India University, Bangalore)</em></p>
