Sunday, 15 April 2012

clarity needed on the definition of unaided minority educational institution

This week's judgement by SC on the applicability of RTE and the 25% reservation for weaker sections has thrown up confusion as well as concern amongst lot of people with regard to the Court's decision that RTE will not be applicable to unaided minority institution. I am extracting here below 4 specific paragraphs from the Judgement.

.... Article 30(1) gives the minorities two rights: (a) to
establish and (b) to administer educational institutions of
their choice. The real import of Article 29(2) and Article 30(1)
is that they contemplate a minority institution with a sprinkle
of outsiders admitted into it. By admitting a non-member
into it the minority institution does not shed its character and
cease to be a minority institution. ....

..... Reservations of 25% in such unaided minority schools
result in changing the character of the schools if right to
establish and administer such schools flows from the right to
conserve the language, script or culture, which right is
conferred on such unaided minority schools.......

....However, when we come to aided minority schools we have to keep in
mind Article 29(2). As stated, Article 30(1) is subject to Article
29(2). The said Article confers right of admission upon every
citizen into a State-aided educational institution. Article
29(2) refers to an individual right. It is not a class right. It
applies when an individual is denied admission into an
educational institution maintained or aided by the State. The
2009 Act is enacted to remove barriers such as financial
barriers which restrict his/her access to education. It is
enacted pursuant to Article 21A. Applying the above tests, we
hold that the 2009 Act is constitutionally valid qua aided
minority schools. .....

....However, the said 2009 Act and in particular Sections
12(1)(c) and 18(3) infringes the fundamental freedom
guaranteed to unaided minority schools under Article 30(1)
and, consequently, applying the R.M.D. Chamarbaugwalla v.
Union of India [1957 SCR 930] principle of severability, the
said 2009 Act shall not apply to such schools.


Now, there are lot of unaided minority educational institutions, where there are not just sprinkle of 'outsiders' , but many more than a sprinkle , significant number of students belonging to non-minority religions or groups. This holds good especially for Christian minority instiutions. Some of these schools enjoy the status of minority for 'certain privileges' but run the school with hefty fees and donations from all types of students. Except for the tag of minority, there is no language, script or culture or flavour that has to be preserved in such schools.

Moreover, some of these so-called unaided minority schools  might have made use of land from Govt at concessional or subsidesed rates. This means that these are not purely unaided, but schools that might have recieved some form of state subsidy. Moreover, their focus may not be predominantly religious activity but running of a school.

This being so, will these schools come under the definition of minority, unaided schools and escape the scope of RTE 2009?

Is there a scope for building up a case and filing a 'CLARIFICATION PETITION' before the Honourable Supreme Cout? Those who have a legal understanding of the issue may kindly clarify for the benefit of others. All said and done, the RTE 2009 is a pot leaking at several points. By the time, pot reaches the children, much of the intentions of the act would have spilled through the leaks. So, how to plug the leaks so that the pot carries education to the millions?
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A.Narayanan (98403 93581)
Paadam, Monthly Magazine in Tamil for Development Politics
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Chennai - 602 101.

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