• This part covers, what are the rights that minority but majority community institutions do not have?

We are repeatedly told that all Indians are equal before law but not told how some laws apply unequally to the majority community. Right to management of educational institutions is an example.

Article co-author is Hariprasad Nellitheertha.

Article 30 (1) of the Constitution states: “All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.”

The introduction to article covers what is the background to Article 30 and what is the current scenario. It can be read HERE

This part covers, what are the rights that minority but majority community institutions do not have? Read on.

In the ‘TMA Pai Foundation vs Others…’ judgement the Supreme Court has listed these rights. 

“50. The right to establish and administer broadly comprises of the following rights i.e. to:

(a) Admit students:

(b) Set up a reasonable fee structure:

(c) Constitute a governing body;

(d) Appoint staff (teaching and non-teaching); and

(e) Take action if there is dereliction of duty on the part of any employees.”

This table compares rules for majority vs minority community educational institutions.  

Let us look at some of these rights in some detail.

1. What does Right to admit students mean?

This involves the type of students being admitted and procedure to admit students.

One, minority institutions need not reserve 25% of the seats under the Right to Education (RTE) Act. Conversely Hindu schools have to under RTE, reserve 25% of their seats to be allocated by the government. The RTE was held valid by the SC in the ‘Pramati Educational Society…’ case year 2014.

Why is the responsibility of educating children from economically weaker sections of society placed on the majority community alone? 

Two, there is a huge disparity on the procedure to be adopted with respect to selection of students. Section 13 of The RTE Act says:

“No capitation fee and screening procedure for admission: (1) No school or person shall, while admitting a child, collect any capitation fee and subject the child or his or her parents or guardian to any screening procedure.”

It means that a RTE compliant institution cannot screen any child to determine whether or not he/she will fit well into the school for students admitted under RTE quota. A Mumbai based school administrator told this author that many parents moved their children out of their school due to poor quality of students admitted under RTE. It is not that the school did not want to take students under RTE but there has to be a profile match. 

Minority institutions have always enjoyed complete freedom in selecting students. This has been highlighted by the SC in the ‘Sindhi Education Society….’ Judgement:

“A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit.”

The words fair and transparent allow scope for misinterpretation and abuse.  

As a result, minority institutions have freedom in selecting students that is not available to non-minority institutions.

2. How are schools paid for students taken under RTE?

There is invariably a large gap between expenses incurred and reimbursement by the state government. Reimbursements are not prompt either.  

In February 2019, over 4,000 schools threatened a one day bandh in Maharashtra due to a delay in reimbursement of student fees to schools.

The state government tried to reduce its liability by modifying the norms for RTE reimbursement stating that “if a private school is using any government land and benefiting from the same then the school would not receive reimbursement for students who have been admitted in 25 per cent RTE quota,” Mumbai Mirror.

A Mumbai based school was told that it could claim exemption from this provision if it paid property taxes in excess of Rs 1 lakh per year.

Delays in reimbursement adversely affect school cash flows, increases costs and puts them at a disadvantage as compared to minority community schools. Members of the majority community complain why so few schools are run by them, most are unaware of this discrimination?

3. How has RTE negatively affected Hindu schools?

According to the trustee of a Mumbai school that belongs to the majority community,

“The number of students is restricted to 40. The subsidy does not cover all expenses. There is no clarity on what is covered under subsidy for e.g. books, uniforms, fees for additional facilities, sports etc. This leads to constant arguments with the education department who advice parents to demand the same from schools inspite of not being clear on matter. If parent do not pay, school has to bear the cost as you cannot single out these students.” 

“There is no clarity on how fee subsidy is fixed. It allows unfettered intrusion and interference from education department and parents. It is very difficult to expel students for harmful activities, bad behaviour etc. Vacancies on account of shortfall (difference between total number on 25% basis and actual admissions taken under 25%) in number of RTE students cannot be filled up at all so seats remain vacant. This results in financial loss for majority community schools.”

This is also a national loss as some students lose opportunity to learn in private schools which are better than government schools.

Why must schools of the majority community be discriminated against like this? 

4. Right to appoint teaching staff.

In Maharashtra majority community schools are given a Teachers Rule Handbook. Name of book by which they govern secondary schools is called SS Code. The minority community have to adhere to this only if they receive government aid. Further, state government can transfer surplus teachers from other aided school to another without consulting management.

Also, according to a March 2018 Madras High Court order , irrespective of whether the institution receives government aid or not, the Court has ruled that teachers are exempt from Teachers Entrance Test (TET). So teachers of majority community schools have to go through TET but not minority. 

Minority institutions have complete autonomy in selection of teachers, the only restriction is that the process must be fair and transparent, subjective to say the least.

The ‘Sindhi Education Society….’ Judgement elucidates on this matter as well:

“……in the matter of day-to-day management, like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself…”

Conversely, state governments have made laws detailing multiple qualifications for appointment of teaching staff to educational institutions. Majority community run institutions have to strictly adhere to these norms.

According to a trustee of a school in Maharashtra, all can fire teachers after conducting an enquiry as mandated by the law. But except for aided schools, education department is not involved.

He adds that generally education laws in Maharashtra are applicable to every school, but education department is reluctant to challenge the minority schools or take action on complaints. Also, all boards make it compulsory to adopt state qualifications for teachers. So indirectly, it is applicable to minority schools also.

When there is no standardization of teacher qualification, can the quality of teaching be consistent? 

Further, a minority institution can appoint a teacher for a secular subject based on religious considerations, whereas a majority community run institution cannot do the same, even if it intends to further the cultural and religious education of Hindus.

For example, in a minority school, even a teacher of mathematics or science can be selected in such a way that their adherence to the religious principles of the particular minority is taken into account.

On the other hand, no Hindu school can make choices of similar teachers involving any religious or dharmik factors.

This makes it difficult for Hindu runs schools to teach their culture and religion making children grow up in a cultural void.

This is one of the reasons why those want to seriously study or teach Sanatana Dharma migrate abroad, mostly the U.S., because there is freedom to learn and a better appreciation of Indian thought in that country.

5. Right to appoint management (principal)

Article 30 (1) provides minority institutions with a large amount of flexibility in the matter of appointment of a Principal or Headmaster.

The Supreme Court ruled thus in the ‘The Secretary, Malankara Syrian….’ Judgement:

“Section 57(3) of which act specify provides that the post of Principal when filled by promotion is to be made on the basis of seniority-cum-fitness. Section 57(3) trammels the right of the management to take note of merit of the candidate, or the outlook and philosophy of the candidate which will determine whether he is supportive of the objects of the institution.”

“Such a provision clearly interferes with the right of the minority management to have a person of their choice as head of the institution and thus violates Article 30(1). Section 57(3) of the Act cannot therefore apply to minority run educational institutions even if they are aided.” Act is “Kerala University Act, 1974.”

Only a minority institution can appoint a Principal keeping aside concerns of seniority and merit in order to further the objectives of the institution.

One wonders why the principals of majority should be controlled by state laws when the same does not apply to those run by minorities.

6. Restrictions on Fees

Hindu schools have to get their fee structure approved by the State Education department. Unaided schools do not require pre-approval of state government for fixation of fees. If the increase in fees is challenged by the parents then procedure laid down by the law is followed. In practice, minority school parents do not complain about increase in fees.

7. Right to provide religious education

Article 28 of the Indian Constitution states that no religious instruction shall be provided in any educational institution wholly maintained out of State funds, simply put no Government school can provide any religious education.  

Whenever the government provides aid to a Hindu run institution (even private), the same becomes ‘aided’ thus teaching ‘religious practices’ is disallowed.

Conversely, when the same government provides aid to a private minority institution, it does not stop it from teaching religious principles and practices.

What is difficult to fathom is this disdain, for teaching of Sanatana Dharma in educational institutions, by those who drafted and interpret the Constitution? No wonder children grow up without an understanding or appreciation of Indian culture and thought.  

Even if a government school has 100% Hindu students, it cannot provide any religious education to them.

Even if a minority institution has only 1% of the student body belonging to the actual community, it can still teach religious education to all students belonging to any religion. This continues even if the said institution is aided significantly by the same government!

Based on Art 28, can the state government deny aid to a minority institution because it imparts religious education?

The Constitution, however, prohibits such a possibility through Article 30(2), which reads:

“The state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.”

8. Other regulations for Hindu schools

Hindu run schools face multiple other regulations for which individual States have prepared rules for e.g. mandatory requirement of a certain amount of real-estate, infrastructure, sports and play equipment, compulsory establishment of libraries, setting up of school-management-committees with 75% representation from parents etc.   

Being exempt from the above minority institutions have complete flexibility to setup any kind of an educational institution – from a budget school to a premier institution.

In case of mismanagement in a majority community institution, the State can appoint an administrator but not if the school is a minority institution. Further the State cannot insist on having its own nominees on the managing body in case of a minority institution. It has become difficult to ensure security of tenure to teachers in minority institutions.

To read what is the net impact of the Right to Education Act and Article 30 click HERE.

Sanjeev Nayyar is a Chartered Accountant and founder www.esamskriti.com. Hariprasad Nellitheertha is a software professional who is interested in spirituality, and law, and writes occasionally on these topics.

First published in Swarajyamag and here