Child Rights Body Scrutinises SC Order as Minority Groups Plan Next Move

After the National Commission for the Protection of Child Rights released a report titled ‘Impact of Exemption Under Article 15 (5) with regards to Article 21 (A) of the Constitution of India on the Education of Children of Minority Communities’, the organisation has come under fire, with experts questioning its expertise in the matter.

Dr. John Dayal, a prominent leader of the Christian community, questioned the locus standi of the child rights body to examine the issue when the matter was settled in the Supreme Court. “This shows the politicisation of all commissions under the present dispensation,” he said, explaining that NCPRC was originally set up to ensure the dignity of children and that they are allowed to grow in freedom, without exploitation or abuse. He questioned why a body meant to protect child rights should focus on the functioning of other government bodies or review SC judgments.

Priyank Kanoongo, chairperson of NCPRC, writes in his introduction to the NCPRC report: “…in 2014, ...the honourable Supreme Court declared the RTE Act inapplicable to schools with minority status with the view that the Act should not interfere with the rights of minorities to establish and administer institutions of their choice. As this is creating a conflicting picture between fundamental right of children and right of minority communities, it was observed that many children who are enrolled in these institutions and/or schools were 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.”

Article 30 of the Indian Constitution protects the right of minority communities – whether based on language or religion – to establish and administer their own education institutions. In 2012, institutions imparting religious education were exempted from following the Right to Education Act, 2019, that reserves 25% of seats at private education institutions for students from economically weaker sections.

Under Article 15 (5) of the Constitution, which provides for protection against discrimination, the state can make special provisions for groups that are socially and economically backward, Scheduled Castes and scheduled tribes. Education institutions run by minority communities are exempt from this as well.

Kanoongo explained in the NCPCR report that consultations were held soon after the SC judgment in 2015. In all, 16 consultations with students and teachers were held to study the impact of the SC ruling. The report published by NCPCR was put together by Quality Council of India, a non-profit society that does not fall under the government of India, but which, according to its website, assists “bureaucrats in problem solving”.

The executive summary of the NCPCR report stated: “The RTE Act was applicable to all government schools, aided non-minority schools and unaided non-minority schools. It was not applicable to minority schools because the RTE Act, particularly Section 12(1)(c), was held to infringe on the other Fundamental Rights guaranteed to minority schools under Article 30(1). The rationale behind the exemption to minority educational institutes was to provide equal opportunity to the minorities to conserve their language, script and culture.

As a result of the exemption, students studying in minority institutes of all religious and linguistic communities were deprived of their Fundamental Right guaranteed as part of RTE Act, 2009. It had considerable consequences for students from minority communities since in the absence of guidelines, minority schools functioned arbitrarily, setting their own norms in terms of admission of students, recruitment of teachers, implementation of curriculum, pedagogy, etc.”

The summary makes sweeping generalisations – while some institutions became “cocoons populated by the elite”, others became “ghettos of unprivileged students”. The aim of the study was “to find out ways to create a pathway to ensure that children in minority schools are able to study in an inclusive environment…” Besides studying already available reports and data, the study analyzed data from 23,487 minority schools across India.

According to Census 2011, Christians comprise 2.3% of the total population of India; the NCPCR report states that Christians make up 11.54% of the total religious population of India, and run 71.96% of the total religious minority schools in the country. Muslims comprise 69.18% of the religious minority population in the country, and run 22.75% of the minority schools in the country. It was found that 62.50% of students in minority-run schools were from non-minority communities. Schools run by the Muslim minority community had over 75% of the student community from the Muslim community, the report noted. Schools run by Jain and Christian communities had far less percentage of children from their own community in schools. “Only 8.76% of total students in minority schools belong to socially and economically disadvantaged background,” the report found, reiterating that such schools are not obliged to make provisions for students from poorer backgrounds.

In conclusion, the report calls for “introspection” by the communities on the role of these schools and advocates the need to bring minority institutions under RTE Act.

“Originally, the Right to Education Act was applicable to all schools in India. Its validity was challenged, and the SC ruled in 2012 that RTE Act violates minority rights guaranteed under Article 30(1) of the Constitution of India, and was hence not applicable to minority institutions, whether aided or unaided,” Supreme Court advocate Jose Abraham explained. He added that the SC verdict is treated as law and is binding on all, and that attempts to dilute a well-settled legal position would not stand in courts.

Attempts to curtail the freedom of minority institutions to administer and recruit teachers is already under attack in Gujarat, where an association of minority schools has approached the High Court challenging The Gujarat Secondary and Higher Secondary Education (Amendment) Act, 2021. The schools fear it will take away the freedom to administer institutions without government interference.

In an open letter to the NCPCR chief, veteran journalist A.J. Philip commended him for being “quite capable of shocking the people”. Philip recalled the abrupt October 2020 order by the commission to close down all children's homes which house orphan children or those who run away from home or are caught by police after involvement in petty crimes. Such children are referred to these homes by the child welfare committee of the district and offered a space to call home and an education by the government until they turn 18. Shutting down these homes and ordering that the children either be returned to families or given up for adoption was one way the commission could save the government money. This order was challenged in the Supreme Court and not implemented. Philip also cited earlier instances where the courts have ruled against government interference in the administration of minority institutions.

Shujaat Ali Qadri, national president of the Muslim Students’ Organisation, said: “One random survey cannot possibly do justice to the gamut of institutions run by the different minority communities. This matter should be left to minority institutions – whether they want to come under the purview of RTE or not. They already serve local communities and not just children from minority communities. Unnecessary and unjustified interference will only create bad blood.”

"Every institution of the government is under threat today. Ultimately, it is the courage of individuals who refuse to sell their integrity that will take us out of this decay. If government has failed, so have we. After all, democracy is based on the conviction that there are extraordinary possibilities in ordinary people," a school teacher who retired from a Catholic school in New Delhi and does not belong to any minority community, said, requesting anonymity.

The author is a freelance journalist based in Pune. The views are personal.