India became one of 135 countries to make education a fundamental right of every child, when the Parliament passed the 86th Constitutional amendment in 2002. Eight years after the Constitution was amended to make education a fundamental right, the government implemented a historic law to provide free and compulsory education to all children in age group of 6-14 years.

The Right of Children to Free and Compulsory Education Act, a law to enable the implementation of the fundamental right, was passed by Parliament last year. The Act makes it a right of every child to get education. The Act makes it obligatory for the appropriate governments to ensure that every child gets free elementary education.

According to this act every school shall conform to certain minimum standards defined in the Act. Government schools shall provide free education to all admitted children. Private schools shall admit at least 25% of children from weaker sections; no fee shall be charged to these children. Screening tests at the time of admission and capitation fees are prohibited for all children.

No doubt the legislation is the most important tool to literate the young India and enables them to acquire the skills, knowledge, values and attitudes necessary to become responsible and active citizens of India and secure a strong and prosperous future.

But the question that needs to be addressed in the present scenario is how far these provisions intrude the rights of the private educational institutions and more importantly the minority education institutions.

Section 3 of the Act imposed an absolute mandate upon all schools including private unaided and minority institutions to admit without any choice each and every child whosoever comes to take admission in the said schools in the neighborhood.

Provisions of the Act violates the rights of private educational institutions under Article 19(1)(g) which provides maximum autonomy to private managements to run their institutions without any interference from the government. The 11-judge Constitution Bench of Supreme Court in the TMA Pai held that maximum autonomy should be provided to private educational institutions. Therefore requiring the private educational institutions to conform the provisions of Act would greatly minimize the autonomy henceforth violating there right under Art.19(1)(g).

Article 21(A) lays down the obligation to provide free and mandatory education to every child, only on the state not on the private organisations. But the Supreme Court while hearing a batch of petitions filed by different associations of private and un-aided schools challenging the constitutional validity of the Right of Children to Free and Compulsory Education Act or Right to Education (RTE) Act 2009 observed that “The Right to Education Act is one of the means to identify a priority group and to help them. If the state is under obligation to do (provide education) it, then it can ask private schools to do it as well,”

No doubt the private educational institutions also have social duty to provide education for poor children. But making mandatory for private education institutions to provide free education and interfering in their administration would curtail their rights. Until and unless these educational institutions are reimbursed the expenses incurred by the schools in providing 25% of the reservation and also providing some autonomy to these schools within the framework of the Act.

Another aspect is with regard to the rights of the minority educational institutions provided under Art.29 and 30 of the Constitution. Enforcing the right to education law in these minority institutions will be “unconstitutional”, Under Article 30 of the Constitution, minorities are allowed to run and administer their own education institutions, without any government interference except in cases of alleged corruption.

The autonomy of minority schools must be ensured. Articles 29 and 30 of the constitution provide the right to preserve distinct minority languages, scripts and cultures. It also grants minorities the right to establish and administer their own educational institutions.

Section 12 (c) states that 25 per cent of the seats should be allotted for the backward communities, poor and the marginalized. But the Supreme Court held in P.A. Inamdar Vs. State of Maharashtra that neither can the policy of reservation be enforced by the State nor any quota or percentage of admission be carved out to be appropriated by the State in a Minority Educational Institutions. The State cannot regulate and control the admissions in these institutions.

A Section 21 of the RTE Act requires that 75 per cent of a school’s management committee should consist of guardians or parents. This provisions if implemented, would violate the Constitution and the National Commission for Minority Educational Institution Guidelines.

In T.M.A. Pai case that Supreme Court held that the freedom to choose the persons to be nominated as members of the governing body has always been recognized as a vital facet of the right to administer the educational institution. It further states that the government or the statuary authorities cannot induct their nominees in the managing committees/governing body of minority educational institutions

Therefore it clearly held that the Minority educational institutions have absolute right to administer their institutions. The Section that requires setting up of School Management Committees under the Right to Education Act will not apply to minority institutions as it can’t override Article 30 of the Constitution.

Conclusion
No doubt the Right to education act is one of the landmark legislation in the Indian history to provide basic education to poor children and in turn secure a better future to Country. But this cannot be done at cost of the Rights of minority education institutions which established under Article 30 of the Constitution. So there is a need to bring certain amendments in the act to exempt the minority educational institutions from the ambit of the Act.