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The Supreme Court on Monday (September 1) cast serious doubt on a Constitution Bench judgment from a decade ago that exempted minority educational institutions from the provisions of the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act).
A two-judge Bench of Justices Dipankar Datta and Manmohan, while ruling on the mandatory nature of the Teacher Eligibility Test (TET), held that the ruling in Pramati Educational and Cultural Trust v Union of India (2014) requires reconsideration by a larger Bench.
The court observed that by taking minority schools out of the ambit of the RTE Act, the Pramati judgment may have inadvertently jeopardised the fundamental right to quality education for children studying in them.
The Bench was hearing a batch of appeals concerning two main issues: (i) whether the TET qualification could be made mandatory for teachers in minority schools, and (ii) whether in-service teachers in non-minority schools who were appointed before the RTE Act came into force, must pass the TET to be eligible for promotion or to continue in service.
TET, introduced in 2011, is the minimum qualification for appointment as teacher for Classes 1 to 8. A Central Teacher Eligibility Test (CTET) is conducted by the Central Board of Secondary Education (CBSE); most states have their own TETs.
While referring the core issue of the applicability of the RTE Act to minority schools to a larger Bench, the court passed a nuanced order for in-service teachers of non-minority schools.
Invoking its special powers under Article 142 of the Constitution “for doing complete justice in any cause or matter”, the court directed that teachers with less than five years of service remaining may continue in their jobs without clearing TET, although they would have to pass the test in order to be promoted.
However, teachers with more than five years to go before retirement must clear the TET within two years in order to continue in employment.
It was while deciding these questions that the Bench concluded that it could not ignore the larger constitutional conflict between minority rights and the universal right to education created by the Pramati verdict. (Anjuman Ishaat e Taleem Trust v. The State of Maharashtra and Ors)
The court’s criticism of the Pramati verdict
The Bench said that the verdict in Pramati appeared “legally suspect”, “questionable”, and “disproportionate” primarily because the five-judge Bench had struck down the applicability of the entire RTE Act to minority institutions based almost entirely on its analysis of a single provision, Section 12(1)(c).
This clause requires all schools to reserve at least 25% of seats in Class 1 for “children belonging to weaker section and disadvantaged group in the neighbourhood”.
In its verdict delivered on Monday, the SC noted that the Pramati judgment was “conspicuously silent” on how other provisions of the RTE Act – such as those prescribing minimum qualifications for teachers, infrastructure norms, and prohibition of corporal punishment – infringed upon the rights of minorities under Article 30(1) of the Constitution. (This provision gives “all minorities, whether based on religion or language, …the right to establish and administer educational institutions of their choice”.)
The Bench observed that “Regulation of teachers’ qualification, such as the TET, fall within the permissible regulatory measure as the object is to maintain educational quality and standards”.
Such measures, it said, are “educational essentials, not ideological impositions”, and do not destroy the minority character of an institution. The right to administer an institution, the court reiterated from earlier judgments, is not a right to “mal-administer”.
The court pointed to a critical conflict created by the blanket exemption provided by the 2014 judgment. While Article 30(1) protects the right of minority groups to establish and administer their institutions, Article 21A guarantees every child a fundamental right to education. Therefore, the Bench reasoned, exempting minority schools from the RTE Act effectively denies the children studying in them the statutory benefits and protections that flow from the fundamental right under Article 21A.
The bench expressed its distress over the “potential misuse” of the exemption. It cited a study by the National Commission for Protection of Child Rights (NCPCR) which found that only 8.76% students in minority institutions were from socially and economically disadvantaged backgrounds, and that 62.5% of students in minority schools belonged to non-minority communities.
“This is indicative of many institutions labelled as ‘minority’ not serving their communities exclusively, but continuing to enjoy exemption from inclusionary mandates,” the Bench said.
It called for a harmonious interpretation where the rights under Article 21A and Article 30(1) “can and must co-exist mutually” rather than one being treated as an “unqualified trump card” over the other.
Four questions for the larger Bench
The two-judge Bench framed four questions for the Chief Justice of India to place before a larger Bench:
* First, it asked directly if the Pramati judgment needed to be reconsidered in light of the reasons detailed in Monday’s order.
* Second, it questioned whether the RTE Act really infringed upon minority rights. If only Section 12(1)(c) was found problematic, should the court have “read it down” by applying it only to children from the minority community, instead of invalidating the application of the entire Act?
* Third, the Bench asked about the impact of the Pramati judgment’s failure to consider Article 29(2) of the Constitution, which prohibits discrimination in admission in any educational institution receiving government aid.
* Finally, it asked whether it was right to declare the entire RTE Act inapplicable to minority schools when the reasoning in Pramati focused on the unconstitutionality of just one provision, Section 12(1)(c).
What the 2014 Pramati judgment held
The five-judge Constitution Bench was deciding the constitutional validity of The Constitution (86th Amendment) Act, 2002, which introduced Article 21A, and The Constitution (93rd Amendment) Act, 2005, which introduced Article 15(5) in the Constitution.
Article 21A established education as a fundamental right, providing that “the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine”.
Article 15(5) allowed the state to make special provisions for admission of backward classes, Scheduled Castes, and Scheduled Tribes in educational institutions, including private educational institutions, “whether aided or unaided by the State, other than the minority educational institutions”.
The Pramati Bench upheld the validity of both constitutional amendments, but ruled that the RTE Act was unconstitutional “insofar as it applies to minority schools, aided or unaided, covered under clause (1) of Article 30 of the Constitution”.
The reasoning of the court was rooted in the protection of the unique character of minority institutions. The Bench feared that forcing these institutions to comply with the RTE Act would lead to an “abrogation” of their fundamental right under Article 30(1) to “establish and administer educational institutions of their choice”.
The judgment focused closely on the impact of Section 12(1)(c) and its 25% reservation mandate. It reasoned that a “legal obligation to admit children belonging to weaker sections and disadvantaged groups in the neighbourhood who need not be children of the members of the minority community…cannot be forced upon a minority institution because that may destroy the minority character of the school”.
The 2014 ruling overturned a 2012 judgment of the SC that had held that the RTE Act would apply to government-aided minority schools, and extended the exemption to all minority schools, regardless of whether they received government aid or not.
The 2014 Bench interpreted the constitutional obligation under Article 21A to provide free and compulsory education as a duty resting solely on the “State”, and held that this duty could not be offloaded onto minority institutions in a manner that would infringe upon their special protections under Article 30.
