The Supreme Court Constitutional Bench’s judgment this week upholding the Right to Education (RTE) Act but excluding minority institutions from its ambit, raises new questions. The RTE Act, through inserting Article 15(5) in the Constitution, allowed the State to make special provisions for advancing the cause of socially and economically weaker sections. In practice, all private educational institutions, aided or aided, but not minority institutions, would have to reserve 25 per cent seats for weaker sections. Not surprisingly, of 36,000 private schools in Maharashtra, 77 per cent have now secured minority status, to evade the RTE Act. Non-minority schools contended that all private unaided schools must be delinked from the RTE Act as this violated Article 19(1)(g) guaranteeing the citizen’s right to professional freedom.
The petitioners also claimed that the exemption granted to minority institutions by Article 15(5) violated Article 14 promising equality before the law. However, the Supreme Court ruled that Article 30(1) is categorical in giving minorities the right to establish and administer institutions of their choice.
Since ratification, the Constitution has evolved over 64 years to reflect the social and economic realities of the times. While Article 30(1), provided by the unamended original Constitution of 1950, forecloses State interference in minority institutions, it is relevant to remember that the original Constitution did not accord the State the right to pursue affirmative action. It was the First Amendment to the Constitution in 1951 that inserted Clause(4) in Article 15 which excluded the reservation policy from the Article 15’s imperative to prohibit discrimination on grounds of religion and caste. Similarly, the time has come to foster a debate among politicians, jurists and, most importantly, among minority communities over an exception clause in Article 30 that allows the RTE Act to advance the cause of weaker sections among minorities vis-a-vis their admission to minority institutions. Of course, any amendment to Article 30 must not violate the “basic structure” of the Constitution. Taking the minority institutions’ argument — that their weaker sections are accommodated in their institutions — at face value runs counter to evidence on the ground. A study of the social and economic composition of the minorities in elite minority institutions would give the answer. The preponderance of minority institutions among private schools, as in Maharashtra, undermines the RTE Act for every weaker section.
On a related issue, the Constitutional Bench’s ruling that the state cannot impose its official language as the medium of instructions on private unaided and linguistic and religious minority schools raises the class question. In effect, poorer students who rely on government schools or aided private non-minority schools will be forced into a medium of instruction against their choice while the more affluent sections of minorities and non-minorities have been spared. The obsession with majority languages as the compulsory medium of instruction in Karnataka, West Bengal, Maharashtra and Tamil Nadu targeted narrow political aims and linguistic appeasement but fared disastrously. The democratic rights of linguistic minorities, schools, parents and students are constrained by forcing a medium of instruction. Rather the focus should be on ensuring that the state’s official language is offered as a course of study in all schools for students to choose. Defying all predictions of doomsday under an Indian State, major regional languages have flourished in their respective states. If any, it is the linguistic minorities within states, who require some protection.