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Legal Correspondent: Utkarsh Sinha
Dec 18, 2021: A PIL has been filed in the Supreme Court demanding application of the Right to Free and Compulsory Education Act, (Right to Education Act) 2009, to minority schools as well. The petitioner, Javed Malik’s writ petition filed via advocate Gautam Jha has sought directions to Union of India to take necessary steps to extend the ambit of RTE Act to encompass institutions run and managed by minorities. The petition alleges that Sections 1(4) and 1(5) of the Act violates the right of the minority communities bestowed upon them by the Constitution of India. When the RTE Act was passed, it did not state that the law was not applicable to minority-run institutions, however the latter challenged the Act insofar as it applied to them arguing that if fell foul of the 93rd Amendment of the Constitution passed in the year 2006 which inserted a new clause numbered 5 in the Article 15.
Article 15(5) says that nothing in this Article or in sub-clause (g) of the clause (1) of the Article 19 shall prevent the State from making any new special provisions by law, for the advancement of any socially and educationally backward communities of citizens or for the SC or the ST’s in so far as such provisions related to their admission in educational institutions including any private educational institutions, whether aided or unaided by the state, other than the minority educational institutions referred to in clause (1) of the Article 30, which says about the religious and linguistic minorities and the right to establish and administer any educational institution of their choices.
On April 2012, the Supreme Court in Unaided Private Schools of Rajasthan v. Union of India, ruled that unaided minority educational institutions were indeed outside of the purview of the RTE Act as per Article 15(5).However, the Court also said that “The Act is constitutionally valid qua aided minority schools”. But the Union government amended the Right to Education Act within the two weeks of the judgment exempting the unaided minority institutions even those funded by the government.
“Whereas under the judgment of the Supreme Court the aided institutions are governed by the school management institution by virtue of this amendment, the aided institutions will not be covered. Only advisory capacity is what they will be having. So, this way we already have moved two step further to protect the interests of the institutions of the minority communities”, the Union Human Resource Development Minister, Mr. Kapil Sibal assured during the discussion on the Amendment by the Parliament.
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