On one hand, there are schools that admit only a certain class of students, becoming cocoons populated by elites, whereas some institutions have become ghettos of underprivileged students languishing in backwardness. This is reported by the NCPCR in its 2021 report on impact of exemption of minority institutions from the RTE Act. As per the said report, nearly 62.5 per cent of students in minority schools belong to non-minority communities, and only 8.7 per cent of students in these minority schools are from socially and economically disadvantaged backgrounds. Thus, it raises the question: why the mushrooming of the minority institutions and whether it is permissible?
Mushrooming in UPA-raj
The National Commission for Minority Educational Institutions Act (NCMEI Act) 2004 has provisions to grant minority status to schools established by minority groups. The Act came into force in the year 2005 and since then several institutions across the country have applied and have been granted the minority tag.
The Constitution (Eighty-sixth Amendment) Act, 2002 inserted Article 21-A in the Constitution to provide free and compulsory education of all children in the age group of six to fourteen years as a Fundamental Right. Later in 2009, the Right to Education (RTE) Act, 2009 was enacted to extend this right of free and compulsory education to children without discrimination.
The RTE Act mandates schools to allocate 25 per cent of their seats to children from Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Classes (or the OBCs) and other sections of society as disadvantaged groups, and must be provided free and compulsory elementary education. Subsequently, in 2012, by way of an amendment, the institutions imparting religious education were exempted from following the RTE Act.
The minority status has become a way to circumvent these institutions from implementing the provisions of the RTE Act and reserving seats for the weaker and disadvantaged sections. This application and grant of minority institutions goes against the spirit of the Act, which is to provide free and compulsory education to all children.
Post-enactment of the NCMEI Act, as evident from the graph, in UPA-1 (2005-2009) around 25oo minority institution tags were given, at the rate of 500 institutions each year. Then comes the landmark Right to Education Act, 2009 that came into force in 2010. Immediately after the enactment, there was a massive hike in the number of institutions granted minority tag with nearly 8000 institutions in UPA-II, at a rate of around 1600 institutions becoming minority institutions each year. The above data clearly indicates that there is a strong correlation between the introduction of the RTE Act and the increase in applications and grant of minority status.
The huge rise in applications for minority tag despite lesser number of minority students studying in these institutions clearly shows that the intent is not for betterment of educational status amongst minorities rather to seek recourse to minority tag to avoid the objective of admission and access to education of disadvantaged and economically weaker students.
This has amounted to a constitutional anomaly and conflict between the fundamental right of children and right of minority communities, since many children who are enrolled in these institutions and/or schools are not able to enjoy the entitlements that other children are enjoying because the institution they are studying in is exempted and is enjoying the rights of minority institution.
Take for instance the case of Aligarh Muslim University where attempts have been made to attribute minority status to a university that was a creature of a law made by the State; and by trying to convert institute of national importance declared by the Constitution to be converted into a minority institution all of which are contrary to the objectives of the provisions enshrined in Articles 25 to 30 of the Constitution. The matter is sub judice before a Constitution Bench of the Supreme Court. Even otherwise, the mechanism of NCMEI Act is being misused to grant minority institution tags to national institutions, for instance in 2011, the NCMEI declared Jamia Millia Islamia as a religious minority institution.
Whether the Mushrooming of Minority Institutions is permissible?
To answer the question, we need to dig deeper into the intent and philosophy of the constitutional provisions. Cultural and Educational Rights are provided in Articles 29 and 30 of the Constitution. The right given to religious and linguistic minorities to establish and administer their own educational institutions under Article 30(1) of the Constitution was not intended to ghettoise them, rather it was a temporary measure.
The constitutional ideal underlying Articles 25-30 is to create conditions where there remains no necessity to shield or protect rights of a minority or majority – rather an amelioration of all. The real intent behind the introduction of these rights was to create an environment free of discrimination to such an extent that ultimately the need of continuing with these rights goes away. This has been the position consistently in the Constituent Assembly, as well as been reiterated by the Supreme Court in its judgments.
To understand the true purport, it is essential to refer to what Sardar Patel and Babasaheb Ambedkar, the two luminaries and founders of the Constitution, thought. While moving the resolution proposing the Draft Constitution, Babasaheb Ambedkar in the Constituent Assembly, on 4th November 1948 stated that the Draft Constitution was criticised because of the safeguards it provides for minorities. He stated that it was not intended to perpetuate minorities but rather to find a solution to enable majorities and minorities to merge someday into one. He suggested that minorities are an explosive force which, if it erupts, can blow up the whole fabric of the State whereas his view was the minorities in India have agreed to place their existence in the hands of the majority. He took a step ahead and said that the moment the majority loses the habit of discriminating against the minority, the minorities can have no ground to exist, they will vanish.
On the other hand, Sardar Patel in the Constituent Assembly on 25th May 1949 while moving the Report of the Advisory Committee on Minorities said that the object should be, as soon as possible and as rapidly as possible to drop these classifications and differences and bring all to a level of equality. He said that, although temporarily we may recognise this, but on our part, taking this responsibility of laying the foundations of a free India which should be our endeavour both of the majority and also of the minority community, have to create an atmosphere in which the sooner these classifications disappear the better.
Therefore, it is evident that what was ultimately intended by introduction of protection for minorities was not a perpetuation of minorities, but rather an amelioration and amalgamation within the national stream. The object is thus to protect and promote Unity in Diversity. Not only this, but these thoughts have also been echoed in the landmark judgment of the Supreme Court in Bal Patil v. Union of India, (2005) 6 SCC 690 wherein while discussing why minority religious rights had been included in the Constitution and the history of minority rights in India, for adjudicating the claims for minority status of a religious group, speaking through Dharmadhikari, J. has observed that:
“John Stuart Mill described India as “a world placed at closed quarters”. India is a world in miniature. The group of Articles 25 to 30 of the Constitution, as the historical background of partition of India shows, was only to give a guarantee of security to the identified minorities and thus to maintain the integrity of the country. It was not in the contemplation of the framers of the Constitution to add to the list of religious minorities. The Constitution through all its organs is committed to protect religious, cultural and educational rights of all. Articles 25 to 30 guarantee cultural and religious freedoms to both majority and minority groups. Ideal of a democratic society, which has adopted right to equality as its fundamental creed, should be elimination of majority and minority and so-called forward and backward classes. The Constitution has accepted one common citizenship for every Indian regardless of his religion, language, culture or faith. The only qualification for citizenship is a person’s birth in India. We have to develop such enlightened citizenship where each citizen of whatever religion or language is more concerned about his duties and responsibilities to protect rights of the other group than asserting his own rights. The constitutional goal is to develop citizenship in which everyone enjoys full fundamental freedoms of religion, faith and worship and no one is apprehensive of encroachment of his rights by others in minority or majority.
Differential treatments to linguistic minorities based on language within the State is understandable but if the same concept for minorities on the basis of religion is encouraged, the whole country, which is already under class and social conflicts due to various divisive forces, will further face division on the basis of religious diversities. Such claims to minority status based on religion would increase in the fond hope of various sections of people getting special protections, privileges and treatment as part of the constitutional guarantee. Encouragement to such fissiparous tendencies would be a serious jolt to the secular structure of constitutional democracy. We should guard against making our country akin to a theocratic State based on multinationalism…”
It was further said in the judgment that the Commission instead of encouraging claims from different communities for being added to the list of notified minorities under the Act, should suggest ways and means to help to create social conditions where the list of notified minorities is gradually reduced and done away with altogether.
The Way Ahead
Mushrooming of minority institutions to an extent and in a manner designed to escape and defeat the constitutional ideals of Affirmative Action and Access to Education for children from constitutionally protected and socially and disadvantaged groups is nothing but a fraud on the Constitution.
It is high time that appropriate steps are taken to extend the provisions of the RTE to minority educational institutions or in the alternative to bring in a law with a similar effect to ensure the right to education is available to the children studying in minority educational institutions.
Having taken a broad overview of the situation at hand, I ponder whether this is the right time to revisit the exemptions granted to minority institutions under the Right to Education Act. While Article 30 of the Indian Constitution rightly empowers minority communities to establish and administer their own educational institutions, ensuring the preservation of their cultural, linguistic, and religious heritage, this cannot be allowed to impede the objectives of Article 21(A), which safeguards the fundamental right to education for every child.
Notably, as referred by several experts and as per data attributed to the RTI replies, the trend has seen a consistent fall in the pace of granting minority status to institutions ever since the Narendra Modi-led BJP government came in power since 2015 and with a major decline since 2019. Thankfully, the Indian State has come to its senses. Yet, a lot more needs to be done (for example, maybe by repealing the NCMEI Act itself).
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