Unreasonable Restrictions

Context:  The bias against private non-minority institutions in the Right to Free and Compulsory Education (RTE) Act shall be removed.

Evolution of RTE in India:

• The right to Education was initially mentioned in Article 45 as a part of the Directive Principles- the state should provide free and compulsory education to children up to the age of 14 within a decade.
• In 1992, the Supreme Court held in Mohini Jain v. State of Karnataka that the Right to Education was a part of the right to life recognised in Article 21.
• In 1993, in Unnikrishnan JP v. State of Andhra Pradesh held that the state was duty-bound to provide Education to children up to the age of 14 and recognised the role of minority institutions
• In 2002, the Right to Education was finally given the status of a fundamental right by the 86^th constitutional amendment by the addition of Article 21A in the Constitution.
• Landmark judgments such as TMA Pai Foundation and P A Inamdar laid the groundwork for the constitutional right to Education.
  • It argued for no reservation in private institutions and that minority, and non-minority institutions would not be treated differently.
• In 2005, the Constitution was amended by the 93^rd amendment to include Clause(5) to Article 15, which dealt with the fundamental right against discrimination.

Issue of bias against private non-minority institutions

• The 93^rd Amendment Act: permitted the state to provide for the advancement of “backward” classes by ensuring their admission in institutions, including private institutions.
  • However, it excluded both aided and unaided minority educational institutions, thus overruling the Supreme Court’s judgment in Inamdar.
• RTE Amendment 2012: mention that its provisions (25% of reservations in private) were subject to Articles 29 and 30, which protect the administrative rights of minority educational institutions.
  • It was found that while non-minority aided and unaided schools were bound by the legislation, both aided and unaided minority schools were exempt.
  • It must be noted that Article 21 does not make any discrimination between minority and non-minority institutions.
  • It is also violative of Article 14 and also economically unviable for many private schools by differentiating between minority and non-minority schools.
  • Thus, the doctrine of harmonious construction of fundamental rights was violated.
  • In Sobha, George v. the State of Kerala explained that although the functioning of minority institutions is not subject to RTE, they are subject to fundamental rights enshrined within the Constitution.

Way Forward: Enabling RTE provisions for the minority institutions as well.

• RTE has provisions such as prevention of physical/mental cruelty towards students as well as quality checks on pedagogical and teacher standards which children studying in minority institutions should not be deprived of and to that extent be dis- criminated against.