PIL Filed In Supreme Court To Extend Provisions Of The Right To Education Act To Minority Education Institutions

A petitioner, Javed Malik, has filed a public interest litigation (PIL) in the Supreme Court stating that certain provisions of the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) which exempt its application to minority education institutions thereby depriving educational excellence to children of minority communities are unconstitutional, specifically ultra vires to Article 21-A and Article 14.

Malik’s writ petition filed via advocate Gautam Jha has sought directions to Union of India to take necessary steps to extend the ambit of RTE Act to cover institutions run and managed by minorities.

In 2009, when the RTE Act was passed, it did not state that the law was not applicable to minority-run institutions, however, the latter challenged the act insofar as it applied to them arguing that it fell foul of the 93rd constitutional amendment passed in 2006 which inserted a new clause numbered 5 in Article 15. Article 15(5) thus read:

Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.

Article 30 gives religious and linguistic minorities the right to establish and administer education institutions of their choice.

In April 2012, the Supreme Court in Unaided Private Schools of Rajasthan Versus Union of India, ruled that unaided minority educational institutions were indeed outside of the purview of the RTE Act thanks to Article 15(5).

However, the court also stated that the act "is constitutionally valid qua aided minority schools".

But the then Union government amended the RTE Act within two weeks of the judgement not only exempting the unaided minority institutions but even those funded by the government, basically overturning the inconvenient part of court’s verdict while incorporating the other half which was in favour of minority institutions.

"Whereas under the Supreme Court judgement, aided institutions will be governed by school management institution by virtue of this amendment, we have said that aided institutions will not be covered. They will have only an advisory capacity. So, in a sense, we have moved two steps further to protect the interests of the minority institutions," the then Union Minister of Human Resource Development Kapil Sibal had assured during the discussion on amendments in Parliament.

Now, Javed Malik’s writ petition seeks to challenge the constitutional validity of Sections 1(4) and 1(5) of the RTE Act arguing that these violate the fundamental rights of lakhs of children belonging to minority communities in India because Article 21(A) of the Constitution provides for free and compulsory education for children between the age of six to 14 years, and children studying in minority institutions can’t be exempt from it.