NCPCR Exposes Everything That’s Wrong With India’s Minority Policy And One Of Its Recommendations Can Really Help

The National Commission For Protection of Child Rights published a report yesterday (10 August) based on a nationwide survey of 23,487 minority schools and it documents an open secret of the Indian education system: how different treatment of minority and non-minority institutions (granted by the Constitution and laws) has been a net negative not only for the country in general but even for the students of minority communities in particular.

“It (the exemptions granted to minority institutions) 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.

Certain detrimental effects were observed: while, on the one hand, there were schools that admitted only a certain class of students, becoming cocoons populated by elites, some institutions became ghettoes of underprivileged students languishing in backwardness,” the report states.

What were those exemptions? First, in 2006, the 93rd Constitution Amendment Act inserted Clause (5) in Article 15 which enabled the State to create special provisions such as reservations for advancement of any backward classes of citizens like Scheduled Castes and Scheduled Tribes, in all aided or unaided educational institutes, except minority educational institutes.

This exemption was justified on the basis of clause (1) of Article 30 of the Constitution which provides the right to all minorities to establish and administer educational institutions of their choice.

Second, in 2009, the Right to Education Act (RTE) was passed and it provided for 25 per cent reservation of seats in unaided schools for admission of children from economically weaker sections and disadvantaged groups.

The RTE Act is not applicable to minority schools because the judiciary ruled saying that such an act infringed on the rights of minority schools under Article 30(1).

Apart from these exemptions, the Manmohan Singh government in 2004 had set up a national statutory body — National Commission for Minority Education Institutions (NCMEI) — which is the highest statutory body (a Hindu cannot become its member) that presides over all matters and disputes relating to the minority status of religious minorities educational institutions in India.

And as per the National Commission of Minorities (NCM) Act of 1992 and even NCMEI, only six religious minorities namely Muslims, Christians, Sikhs, Jains, Parsis and Buddhists (Jains were included in 2014) are notified by the Central government even though Article 30 mandates that linguistic minorities are also eligible for similar special status.

The NCPCR report details how these aforementioned factors have distorted the education scenario at the institution level throughout the country. Its findings are stated below:

1. One can see a surge in the number of schools securing Minority Status Certificate (MSC) after passage of the 93rd Amendment, with more than 85 per cent of the total schools securing the certificate in the years 2005-2009 and later. This can be attributed to the ease in administering minority schools, without the legal mandate to reserve seats for backward classes.

2. The Christian community, which makes up 11.54 per cent of the total religious population, contributes to 71.96 per cent share of the total religious minority schools of the country.

On the other hand, the Muslim community, despite contributing a share percentage of 69.18 per cent to the religious minority population in the country, contributes only a paltry share of 22.75 per cent to the religious minority schools. (emphasis mine)

3. It was found that 62.50 per cent of students in minority schools belong to non-minority communities (Comment: This percentage goes much higher in the case of Christian minority schools. See the graph below. It shows that while Muslim minority schools primarily cater to the students of the Muslim community, that’s not true for others)

4. A comparison of enrolment of students from disadvantaged sections as a percentage of total enrolment in the minority schools shows that across the communities, only 8.76 per cent of the total student population belongs to the disadvantaged section.

Since minority schools are outside the purview of the RTE, there is no compulsion to admit students from disadvantaged backgrounds.

The figure is again skewed due to Muslim minority schools which have 25 per cent of students from disadvantaged sections but the share is much less than the national average for schools of other communities as the graph below shows.

The report reasons that ‘the right provided to minority institutions under Article 30(1) of the Constitution of India cannot be taken as unconditional or absolute’ and to tackle the specific issue of minorityism, it gives four main recommendations:

1. Expanding the coverage of Right to Education (RTE) Act to Madrasas: The RTE Act, which guarantees every child in India mainstream school education, irrespective of religion professed, should take precedence over the Right to Religion.

2. Need for appropriate steps to extend the provisions of RTE to minority educational institutions or make law with similar effect to ensure RTE of children studying in minority educational institutions.

3. Requirement of issuing guidelines regarding nature and number of minority institutes in a state.

4. Notification of guidelines regarding composition in minority institutes.

5. Re-examination and further amendment of guidelines for grant of minority status to schools.

6. Addition of Minority Status Renewal at periodic intervals.

7. Creation of appropriate administrative system for the purpose of meaningful realisation and effective implementation of linguistic minority rights.

First suggestion doesn’t make much sense. As the data shows above, already 25 per cent of Muslim minority schools have students from disadvantaged backgrounds (equal to what the RTE quota mandates).

Moreover, the madrassas anyway cater to the poorest sections of the population among Muslims. Non-Muslims anyway won’t be interested in coming to study there even if general subjects are included apart from religious education.

However, if the intention is only to extend secular aspects of RTE Act to madrassas (input based requirements of classroom sizes, playgrounds, computer labs, libraries, etc), then it makes sense.

But the government should be mindful of the implementation aspect. The threat of non-recognition won’t work either because these institutions anyway work outside the mainstream.

Second, suggestions numbering 2 to 6 are in direct conflict with the protections provided by the Constitution to the minority institutions and the six-decade-long jurisprudence that has dealt with these issues case after case only to reach the conclusion that the liberty of minorities to establish and administer education institutions ‘of their choice’ means that even reasonable restrictions can’t be applied.

RTE was applicable to all the unaided and aided schools in the beginning. It was only the Supreme Court in the Pramati judgement in 2014 which declared that the RTE Act ‘insofar as it is made applicable to minority schools referred in clause (1) of Article 30 of the Constitution is ultra vires the Constitution’.

The suggestion of putting a minimum cap of minority students is not a novel one. In the 1957 Kerala education case, the apex court had ruled that a sprinkling of outsiders in a minority institution would not amount to the cessation of the minority character of the institution.

The court did not specify the precise percentage of ‘sprinkling’. This was later decided in a historic decision in St Stephen’s College vs. University of Delhi where the court ruled that ‘the State may regulate the intake in this category with due regard to the need of the community in the area which the institution is intended to serve.

But in no case such intake shall exceed 50 per cent, of the annual admission.’ Remember, this is the maximum cap.

As far as the suggestion of tightening guidelines for minority status (or periodic renewal) is concerned, the Supreme Court has already clarified that an institution is not minority because the state has granted it that status but because it's minority by the fact that it’s established or managed by the minorities and it’s immaterial if the state bestows the official status on it or not.

As late as 2019, the Supreme Court bench of Justices R F Nariman, R Subhash Reddy and Surya Kant ruled that a minority institution that has been set up with the intention of serving the minority will always enjoy that status and under no circumstance can that status be waived.

The court then went further to state that the precedent was clear that even recognition of minority status from the government was not needed.

The jurisprudence so far is clear: the rights granted under Article 30 have been put on a higher pedestal than any other fundamental rights guaranteed by the Constitution.

That leaves the last suggestion at the government’s disposal: to create a legal mechanism to realise the rights granted under Article 30 to linguistic minorities.

That legal mechanism can be either by creating a separate commission for linguistic minorities or by simply notifying a host of linguistic minorities for each state under the NCM Act of 1992 or NCMEI Act of 2004.

This is the best way forward to neutralise the minorityism that has become a canker for the education system In the country.

Of course, there is another way. To frame a better RTE Act which handsomely rewards schools financially for admitting poor students, reinstates their admission autonomy and replaces the burden of input requirements with focus on learning outcomes.

There will be a reverse rush of schools to give up their minority status and join the RTE Act bandwagon.

The solutions are there. Only the will on the part of the Modi government is missing.

One hopes that at least the NCPCR report will shake it up from its deep slumber and force it to act.