The Bombay High Court recently held that minority educational institutions cannot admit economically and socially disadvantaged children under the RTE Act, even if they chose to do so “voluntarily”. The HC’s Aurangabad bench ruled that allowing such admissions would violate the constitutional protections that exempt minority educational institutions from tha mandate of the RTE Act.
Notably, the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act), mandates every school to reserve 25% of seats for children from disadvantaged and weaker sections of society. Students enrolled under this quota are provided concessions on school fees – the state governments have to then reimburse private schools. However, minority-aided and unaided educational institutions are exempted from the mandate of the RTE Act, courtesy 93rd Constitutional Amendment, 2005.
The bench of Justices Mangesh Patil and Shailesh Brahme upheld the exemption for the minority institutions while hearing petitions filed by Izak English Medium School and Anand Medical and Education Foundation. Both of them are minority-run English-medium schools in Ahmednagar. The petitions had challenged a government circular dated 15th March 2013, that excluded minority schools from admitting students under the RTE quota.
The petitioners’ counsel submitted that the school should be allowed to admit students under the 25% quota as a “voluntary gesture”. They, however, sought reimbursement from the State government for admitting these students during the previous years.
The Court dismissed their submissions stating that by permitting the admission of students under the RTE Act, these institutions would violate their constitutional rights under Article 30(1). The Article says that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
On 14th August, the two-judge bench observed, “Once the constitutional bench of the Supreme Court has held the RTE Act itself being ultra vires Article 30(1) of the Constitution, this Court in exercise of the powers under Article 226 of the Constitution cannot permit the minority institutes like the petitioners to subject themselves to the provisions of the RTE Act. Even if they [minority institutions] are ready and willing [to admit students under the RTE quota], allowing them to do so could be only by making the provisions of the RTE Act applicable to them, which in itself is prohibited by virtue of the declaration in Pramati Educational and Cultural Trust (supra).”
The bench added that allowing the institutions to do so would amount to making RTE applicable to them. The court based its ruling on Section 1(5) of the RTE Act which explicitly exempts minority institutions from its applicability.
The court underlined that the RTE Act “expressly excludes” aided or unaided minority schools, Madrasas, and Educational Institutions primarily imparting religious instruction.
However, while dismissing their petitions, the bench said that admittedly Izak English Medium School had previously enrolled students under the RTE quota and had not been reimbursed for the academic years 2017-18 to 2019-20. Subsequently, it directed the government to undertake “scrutiny of the claim” and reimburse the school within six weeks.
RTE heavily skewed against Hindu Educational Institutions (HEI), tens of thousands of HEI closed down because of the RTE mandate
The 93rd Constitutional Amendment which exempted minority institutions from the mandate of RTE, has often faced severe criticism from Hindu advocacy groups and legal experts as it discriminates against Hindu-run private schools and makes them unable to compete effectively with minority-run institutions. It has put the onus to serve poor students solely on privately-run educational institutions, run by Hindus, to reserve 25% of seats for poor and disadvantaged students. They are also expected to spend their monetary resources on their textbooks, uniforms, transport, etc.
In theory, the government compensates this expense, however, in reality, this puts Hindu-run institutions at the mercy of the government to seek a refund which takes a long time. This has led to the closure of tens of thousands of Hindu-run schools which has translated into them ceding ground to minority institutions in this regard. According to a 2017 CAG report, the government took as long as 307 days to release these funds to schools. A recent report estimated that the RTE is responsible for the shutting down of more than 10,000 Hindu-run schools.
In contrast, the National Commission for Minority Educational Institutions Act (NCMEI Act) 2004 liberally grants minority status to schools established by minority groups. Ever since the act came into effect in 2005, thousands of minority institutions across the country have applied for and secured the minority tag which has often become a way to prevent themselves from the ambit of RTE mandate.
The data emphasises how there is a direct and strong correlation between the introduction of the RTE Act and the mushrooming of institutions securing minority status and circumventing RTE’s 25% quota, albeit at the expense of Hindu educational institutions, which have closed down in tens of thousands in the last decade or so.
