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Are the RTE Act and the Right of Minorities Act playing well together?
Two different High Courts following the same precedent of the Supreme Court have landed up with two different judgements based on different interpretations of the law. There is an urgent need to reconcile the RTE Act with the Right of Minorities Act to make education truly universal.
The law of the land has passed 2 contrasting verdicts on the same issue in the education sector. Let’s have a look.
On June 10, the Kerala High Court passed a remarkable verdict where it ruled that Section 16 of the RTE Act 2009, that spells out the no-detention policy, is applicable to minority educational institutions as well (Sobha George v. State of Kerala). However, it is noteworthy that the Supreme Court had exempted minority schools from the purview of the RTE Act in Pramati Education and Cultural Trust v. Union of India (2014).
While passing its judgement, the High Court located this obligation not in the Act but under Article 21 of the Indian Constitution, which guarantees right to life and liberty. It ruled that the no-detention policy (NDP) is in the “best interest” of the child and could independently be considered a fundamental right.
How does this judgment affect the dynamics between minority rights and rights to education? While this judgment is indeed innovative, is it necessarily good?
How do the RTE Act and minority rights interplay?
The Article 21A recognises the right of all children aged between 6 and 14 to free and compulsory elementary education. The RTE Act in turn facilitates this right by elucidating supporting rights, identifying the duty-bearers and establishing administrative structures to enforce these rights. The problem arises because the generic scope of the RTE Act seems to be in conflict with the specific contexts of the Rights of Minorities Act to establish and administer educational institutions of their choice under Article 30. That right, however, is not absolute.
Regulations for maintaining academic standards, ensuring proper infrastructure, health and sanitation, etc. could be imposed on minority schools as well. Further, a government-aided minority school cannot discriminate against students on grounds of religion, race, caste, language in the matters of their admission (Article 29(2)).
The Pramati (Supreme Court) judgement was erroneous on 2 counts. First, it failed to notice that besides the 25% quota in Section 12(1) (c), the RTE Act also has provisions on infrastructural norms, pupil-teacher ratio, prohibition on screening tests and capitation fee and ban on corporal punishment. Far from infringing upon the ‘minority character’, these provisions benefit both the students and community. Secondly, it did not consider the fact that the government-aided minority schools stand on a different footing from their unaided counterparts and are more open to regulations than the latter.
Earlier, the Karnataka High Court similarly refused to apply NDP to minority schools as it rightly considered itself bound by Pramati judgment. Interestingly, the Kerala High Court, beginning with the same premise, ended up with the opposite result! The significance of the Sobha George verdict, therefore, lies not only in making certain provision of the RTE Act applicable to minority schools but route taking for making it happen. The courts reasons: “… RTE Act has no application in a minority school, whether aided or unaided. However, the Court has to examine whether Section 16 of RTE Act is a mere statutory right or can be treated as a fundamental right expressed in the form of statutory provision.”
A key positive take away from this judgment is that certain provisions of the RTE Act have been recognised to have a universal appeal, even if the Act in itself lacks it. However, it is completely within judicial discretion to determine which provisions are these. Prior to the Pramati judgement, courts had consistently upheld those regulations that would actually serve the interests of students and the minority community. As the RTE Act and rules fell in a many of these regulations, the Pramati judgment practically forecloses this line of reasoning.
Bringing clarity in the law
While the Sobha George judgment has done an excellent job of opening up possibilities of applying different provisions of the RTE Act on minority schools using the Article 21 route, it simultaneously compels us to rethink on the role of judicial precedents.
The two contrasting judgments of the High Courts on the same issue while paid allegiance to the same Supreme Court precedent one can’t help but notice the ripple effects of both. This makes the overall position of law unclear arising from an erroneous opinion by the highest court. In Common Law, a lower or a latter court cannot displace the judgment given by a higher or a prior court merely because it has a different perspective. This is what makes that judgment ‘binding’.
The question here is not only about NDP. The issue is the obligation of the superior court in laying down a clear binding law for all subordinate courts. The Sobha George case may immediately benefit thousands of children in Kerala, yet conflicting judgments adversely affect realisation of rights of all children equally. A ‘constitutionally-permissible balance’ between right to education and minority rights requires an interpretation that makes them mutually reinforcing rather than irreconcilable. We hope that the Supreme Court: (i) re-examines the positive (establishing and administering educational institutions for the welfare of minorities) and the negative (protection against imposition of majority language or culture) aspects of educational rights of minorities; and (ii) appreciates the special case for guaranteeing right to elementary education universally and equitably.
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