No, Bringing Minority Institutions Under RTE Will Not Violate Rights Guaranteed By Article 30(1)

A few days ago, the Bharatiya Janata Party leader and Member of Parliament from East Delhi Maheish Girri introduced a Constitutional Amendment Bill in the Lok Sabha aimed at removing the exemption given to minority educational institutions in the matter of reservation in admissions under Article 15(5) of the Constitution. Given the history of private member bills, this one stands a very small chance of being passed. However, undoubtedly, it is an important step towards restoring parity between minority and non-minority educational institutions.

Under the Right To Education (RTE) Act, the state plays a role in deciding 25 per cent of the seats in any school that qualifies under the Act, but it is not applicable to minority institutions. This article attempts to analyse the issue of exempting minority educational institutions from having to admit students who are not chosen by them.

Restrictions On Rights

The Constitution provides many rights to its citizens, some of which are deemed vital and hence called ‘fundamental’.

Our Constitution grants a number of such Fundamental Rights to citizens. Freedom of speech through Article 19(1)(a), right to practise any profession through Article 19(1)(g) and right to life through Article 21 are a few examples.

The makers of the Constitution have also ensured that these rights are not absolute. Under certain circumstances, the State can impose ‘restrictions’ on these rights, even if they are fundamental in nature. The primary reason for imposing restrictions is that the exercise of the right, without the particular restriction, will lead to an unwanted negative outcome that will cause greater harm than good that the right brings with it. For example, the State gives freedom of speech to all its citizens. However, if an individual, who is in possession of some State secrets by virtue of his employment with the government, publishes it, then it will surely compromise national security. Hence restrictions act as safeguards during exercise of rights.

Some of these restrictions have been encoded in the Constitution. Examples are Articles 19(2) to 19(6), which imposes restrictions on the rights guaranteed under Article 19(1). There are few other rights provided by the Constitution, which do not have an explicit restriction mentioned in the Constitution itself. However, the judiciary has from time to time extended the concept of restrictions to these rights as well, and correctly held that no right can be absolute.

Similarly, the educational rights guaranteed to minorities under Article 30(1) can be subjected to certain restrictions to ensure ‘there is no maladministration’ even though the Constitution itself does not specify any such restriction.

Nature of Restrictions

Based on the type of restrictions imposed through the Constitution and Supreme Court jurisprudence, some key attributes of these restrictions have been identified.

• Restrictions can be imposed only by following due process of law
• The restrictions must be reasonable in nature
• If there are clauses explicitly calling out the purpose, then the restrictions necessarily have to conform to those purposes.

In his book, Fundamental Rights and Their Enforcement, Udai Raj Rai identifies several key criteria that a restriction must satisfy for it to be valid.

Restrictions

• Should not be disproportionate
• Should not be excessive
• Should not be more than what is required to prevent the evil that is being remedied
• Can lead to total withdrawal of the Right, if circumstances so warrant
• Must factor the prevalent conditions of the time

In addition to the nature of restrictions mentioned above, there are at least two other important attributes to restrictions that are important in the context of the current discussion.

Restrictions must not be redundant: If a particular restriction is inherently applicable to every action of a citizen, or is exhaustively covered elsewhere, it serves no purpose to call it out specifically in the context of a particular right. For example, every citizen has a right to life. It is coded explicitly in Article 21. Therefore, there is no need to explicitly mention separately that the right to practise any profession or occupation should not lead to any loss of life.

Restrictions such as conformance to standards related to health, hygiene, sanitation and others are general restrictions applicable to all rights and no explicit encoding is required. On the other hand, correctly identifying ‘related’ restrictions is important.

The interest that is being protected must be directly related to the right being restricted: For example, the right to practise any profession has a restriction that subjects the right to proper professional qualifications requirement. A good description of this attribute was given by the Supreme Court in Rev Sidhajbhai Sabhai And Others vs State Of Bombay in the context of Article 30 dealing with educational institutions:

Categories Of Restrictions

With the above background, we can classify restrictions into two broad categories:

Remedial: Any right that is exercised without this type of restriction can cause damage to the State and/or society. For example, the freedom to form association and groups has to be subjected to the restriction of ‘public order’. The interest to be protected here is public order, and if this restriction is not imposed, then rogue groups could engage in violence and destruction of public property. Here, the restriction remedies the damage that unbridled exercise of the right can cause.

Relinquishing: This type of restriction leads to an individual possessing the right giving up the same so that a greater public cause can be served. For example, all citizens in India possess the right to acquire property. However, if the State so decides that a greater public good, such as a highway, needs to be built, then the State can acquire the property of an individual. Of course, it goes without saying that such restrictions, as also with all remedial restrictions, have to be under due process of law. And such restrictions do not take away the right completely. The person who lost his land is free to acquire property elsewhere.

Rights Of Minority Educational Institutions

Under Article 30(1) of the Constitution, religious and linguistic minorities have the right to establish and administer educational institutions of their choice. As noted earlier, the Constitution has not imposed any specific restriction on this right. However, the Supreme Court of India, on numerous occasions, has held that the rights under this section also can be restricted. Therefore, there is no doubt about whether or not this particular right can be restricted. The point of contention is about what the restrictions are which can be imposed.

Based on the exact wording of Article 30(1) and the numerous judgements produced by the Supreme Court of India, the Rights guaranteed under this section can be elaborated as below:

1. Right to establish educational institutions (of their choice)

a. Founders belonging to the minority community

2. Right to administer educational institutions (of their choice)

a. Right to constitute management committee

b. Right to appoint teachers

c. Right to use properties and assets of institution for its benefits

d. Right to admit students

3. Right to maintain minority character of the educational institution

a. Propagation of values related to minority religion or language

The sub-rights mentioned under (2) above are based on the Supreme Court judgement given in The Ahmedabad St Xaviers College vs State Of Gujarat & Anr. In a few other judgements, the apex court has elaborated on the sub-rights in a slightly different way. However, all those sub-rights can be subsumed under the ones mentioned above. Therefore this classification suffices for the purpose of our discussion.

Minority Educational Institutions: Restrictions On Right To Admit

The restriction on the right to admit students qualifies as a “relinquishing” restriction as described above. This restriction results in a greater good for the nation being realised – that of upliftment of socially and economically backward sections of society.

From the list enumerated above, we realise that any restriction imposed on admission of students, such as via the RTE, concern only 2(d) and 3(a) among all the sub-rights. None of the other sub-rights enumerated are affected in any way by restrictions on admissions. We can safely conclude that this restriction does not grossly dilute rights under Article 30(1).

Our analysis can now focus on only the two sub-rights which are actually affected – (1) Right to admit students of choice (2) Propagation and preservation of values possessing minority character.

One of the primary attributes of any restriction is that it should NOT be excessive. Therefore, the State can never enforce a restriction that demands the institution to hand over say all, or 75 per cent, of admissions to the government. The courts will immediately quash any such restriction. Therefore, it will always be safe to assume that only a small, and reasonable, amount of seats will be taken away by the State. For example under the RTE Act, the limit is 25 per cent.

Therefore, the Right to admit students of choice is NOT COMPLETELY negated by a restriction in this area.

Let us now turn our focus on the other sub-right – that of minority nature of the institution, and the need to preserve it.

Minority educational institutions can be of three types

a) Institutions teaching purely secular subjects.

b) Institutions teaching a mix of secular and religious/linguistic subjects.

c) Institutions teaching purely religious/linguistic subjects.

Institutions belonging to type (a) are no different from non-minority institutions teaching secular subjects. Therefore, the minority character of the institution is not influenced in any way by either the curriculum or the students.

Institutions belonging to type(c) are more religious institutions than educational institutions. Hence they are not under the focus of these restrictions.

The main area of contention therefore will be type (b) institutions and whether introducing restrictions on right of admission will alter the minority character of such institutions.

The minority ‘character’ of educational institutions are influenced by

• ‘who’ teaches at these institutions – the teachers, principal and management committee.
• ‘what’ is taught at these institutions – the subjects, courses and teaching methodology.
• ‘where’ the education is provided – the ecosystem under which the students learn, infrastructure and facilities.
• ‘whom’ the education affects – the students.

It is quite clear that the restriction on right to admit is isolated to just the ‘whom’ clause in the above list. The other three, equally vital, components are completely untouched.

With regard to the clause which does get affected, the following points are worth noting:

1. The need for the restriction to be mandatorily non-excessive will mean that the right of admissions to majority of the students will always remain with the management of the minority institutions.
2. When a non-minority student undergoes education in a minority institution and undertakes study of minority subjects, the influence of the institution on the student far outweighs any reverse influence the student may bring upon the institution. In other words, this arrangement actually imparts minority education to non-minorities.
3. Almost all the minority religions in India welcome the study of their religions by people belonging to other religions. This actually aids their goals of propagation and preservation of their religion and culture.
4. When it comes to linguistic educational institutions, the opportunity to teach non-minority language students during their prime learning age can only positively contribute to the sustenance and growth of the non-minority language.
5. Almost all minority institutions today do admit non-minority students, albeit to varying degrees. This only proves the assertion here that non-minority students do not affect the minority character of the institution.
6. Minority character of an institution is not an end in itself. It aids in furthering the cause of the religion or language for which the right has been granted in the first place. And the cause of propagation and preservation of religion or language will not be diluted by a reasonable admission of non-minorities.

From the above analysis, we can draw the following conclusions about restrictions on the right to admit students on minority educational institutions:

1. The restriction impacts only a very small subset of rights granted under Article 30(1)
2. The restriction does not change the minority character of the institutions
3. The restriction absolutely does not abrogate the rights granted to the minority educational institutions.