Judge: why not a law to rope in minority institutions?

A Constitution Bench of the Supreme Court is examining the validity of various provisions of the Right to Education Act and Rules, and Articles 15(5) and 21-A in this connection.

The 93rd amendment in 2005 inserted clause (5) in Article 15, enabling the state to make special provisions for the Scheduled Castes, the Scheduled Tribes and the Socially and Educationally Backward Classes (SEBC) for admission to all educational institutions, including private unaided institutions, except those run by minorities. Parliament enacted the Right of Children to Free and Compulsory Education Act in 2009 by inserting Article 21-A to provide education to all children aged 6-14.

The Act imposed obligations on schools to admit students from weaker sections to at least 25 per cent of their seats. A three-judge Bench, in a majority judgment, upheld its constitutional validity.

Later, following a reference that the matter ought to have been decided by a Constitution Bench, Justices R.M. Lodha, A.K. Patnaik, Dipak Misra, S.J. Mukhopadhaya and Ibrahim Kalifulla are hearing arguments on the validity of the two Articles.

On behalf of the Federation of Public Schools and others, it was contended that compelling unaided institutions to provide admissions to SEBC children, as contemplated under Article 15(5), violated the basic structure of the Constitution. The law violated their right to run their schools without government interference. Article 21-A, being applied to private unaided schools, abridged the “unfettered fundamental rights of such institutions to establish, run and administer their educational institutions, which include the right to admit students of their own choice.”

It was argued that Article 15(5) violated Articles 14 (equality), 19(1)(g) and 21 as it applied to unaided institutions and did not cover aided minority institutions. The idea of Article 15(5) to help disadvantaged children study in elite schools and mix freely with children from affluent backgrounds could not obviously have led to its enactment. For, Christian minority institutions, aided or unaided, were not covered by it.

Quoting decisions, it was submitted by counsel that the balance between the fundamental right of private unaided institutions and the state’s measures of social control was thus tilted irrevocably against them.

When Solicitor-General Mohan Parasaran was justifying the 93rd amendment and the RTE Act and their applicability to unaided institutions, Justice Patnaik referred to the Sachar Committee report and asked him to find out why the state should not be called upon to bring in a law to make minority institutions provide admissions to weaker sections among Muslims and other minorities.

The Solicitor-General will make his submissions on Thursday.