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Friday, December 8, 2023

The Design of RTE – Part II

In the first part of the write-up, we had seen how the RTE Act was constructed to ensure complete autonomy to minority educational institutions with regard to admission of students.

In this part, we will attempt to decipher how the RTE Act aims to achieve the same with regard to administration of the institutions.

Unlike the interpretations of the judiciary with regard to admissions, which were mostly in favor of the minorities, the courts delivered mixed opinion on the issue of administration. While always holding that the administration must remain firmly with the minority management, they kept introducing clauses on what aspects of the administration the State could have a say in.

In Kerala Education Bill, 1957, the Supreme Court made some strong remarks about the extent of freedom the minority management can get :

The right to administer cannot obviously include the right to mal-administer.

It stands to reason, then, that the constitutional right to administer an educational institution of their choice does not necessarily militate against the claim of the State to insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of the institutions to be aided.

In St Xavier’s College vs State of Gujarat, 1974, a 9 judge bench of the Supreme Court went a step further and defined elements of administration where the State can have a stake :

Prescription of standards for educational institutions does not militate against the right of the minority to administer the institutions. Regulations made in the. true interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed

The right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not an absolute right. This right is not free from regulation. Just as regulatory measures are necessary for maintaining the educational character and content of minority institutions, similarly regulatory measures are necessary for ensuring orderly, efficient and sound ad-ministration.

The right to administer is to be tempered with regulatory measures to facilitate smooth administration. The best administration will reveal no trace or colour of minority.

A similar stream of interpretation was seen in multiple observations in TMA Pai Foundation vs State of Karnataka, 2002 as well :

The right under Article 30(1) cannot be such as to override the national interest or to prevent the government from framing regulations in that behalf. It is, of course, true that government regulations cannot destroy the minority character of the institution or make the right to establish and administer a mere illusion; but the right under Article 30 is not so absolute as to be above the law

The right under Article 30(1) has, therefore, not been held to be absolute or above other provisions of the law, and we reiterate the same.

In P A Inamdar vs State of Maharashtra, 2005, the Supreme Court almost formalized the mechanism by coming up with a “triple test” (actually, it was first created in TMA Pai J)to determine whether a law intended to be made applicable to minority institutions qualifies for the same :

Subject to reconciliation of the two objectives, any regulation accompanying affiliation or recognition must satisfy the triple tests: (i) the test of reasonableness and rationality, (ii) the test that the regulation would be conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it, and (iii) that there is no in-road on the protection conferred by Article 30(1) of the Constitution, that is, by framing the regulation the essential character of the institution being a minority educational institution, is not taken away

The ground lay very clear that, as long as certain criteria were met, the State could impose administrative conditions and rules on minority institutions as well. For the #IOI, this HAD to be overcome.

I firmly believe that the nature and composition of the RTE Act is extremely well thought out and deliberate in the way it is crafted. The intention was to piggy-back on the strength of the laws governing admission, i.e Article 30 and Article 15(5), to push through laws governing administration, and remove it from the scope of applicability.

  • Therefore, even though the stated objective of the RTE Act is along the lines of admission of students of unprivileged communities, the actual content of the Act is heavily loaded with almost all aspects of administration. In fact in the entire RTE Act, there are more sections on administration than on admission.
  • During the framing of the 93rd Amendment, the authors made sure the potential conflict with Article 30 was handled by explicitly coding in the exception to minority educational institutions. However, in the entire RTE Act, the very same authors did not include enough “exceptions” to any of the sections. For e.g. in Section 18 of the Act, there could easily have been clarification on the procedure to obtain recognition for minority schools.
  • Of course, as part of the 2010 Amendment to the RTE Act, some references to minority schools were added. However, this was clearly because the SC had included aided minority institutions into the purview of RTE in its April 2012 judgement in Unaided Private Schools of Rajasthan vs Union of India.

With such a heavy inter-twining of the various aspects of school management, the authors ensured that the Law of Severability can never be applied to the RTE Act. In other words, if certain (objectionable or invalid) parts of the Act were to be removed, the entire Act itself would become invalid or illogical. It therefore becomes a “whole or nothing” scenario.

IMHO, one of the prime goals of the way in which the RTE Act was framed was to ensure that the Act can never pass the Test of Severability. And the authors tasted success on this count in Unaided Private Schools of Rajasthan vs Union of India, 2012. With hardly any detail about the reasons, the Supreme Court, in this particular judgement, held that the RTE Act failed the test of Severability and hence it cannot be applied to unaided minority institutions :

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.

In the Pramati vs UOI Judgement of 2014, the Supreme Court went the last mile and declared that due to the very same test of severability failure, the RTE Act won’t apply to aided minority schools as well!

What this meant was that due to the condition of either the whole Act or none of it being applicable, all the sections of the Act which correspond to administration of schools also are inapplicable to minority educational institutions. In a round about fashion, the minority schools have earned themselves complete autonomy!

(This article first appeared on and is being reproduced with the permission of the author, Hariprasad N).

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Hariprasad N
Hariprasad N
श्रीमध्वाचार्यस्य तत्ववादः | ऋक् शाखः | राजराजायते रिक्तो राघवेन्द्रं तमाश्रये | सत्यमेव जयते नानृतं | Twitter: @pranasutra


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