Right To Education With Special Emphasis To Minority Education Institutions

By | September 16, 2016


“A man without education is equal to animal”

Education is a basic human right. For the success of democratic system of government, education is one of the basic elements. The Constitutional framers realising the importance of education have imposed a duty on the state u/a 45 as one of the directive policy of state to provide free and compulsory education to all children until they completed the age of 14 years within 10 years from the commencement of this constitution. The constitution framers were also view that in view of a financial condition of a new state it was not feasible to make a Fundamental Right. But it is unfortunate that since lapse of 60 years from the commencement of constitution they didn’t take any step to implement this directive and still 40 % population of country is illiterate.

After lapsing of 45 years this matter encroach to court in Mohini Jain v. State of Karnataka[1] case the matter was raised by the petitioners that the right of education is a fundamental right under article 21.The court held that right to education at all level is a fundamental right u/a 21 of the constitution. The matter was again raised in Unni Krishnan v. State of A.P.[2] where the court specifically held that the right to education for the children of the age of 6 to 14 years is a fundamental right. The court overruled the decision of the Mohini Jain case and held that the right to education is only available up to 14 years of age. The court has said that after the 14 years of age the obligation of the State depended on the economic development. Even after this case there was no improvement in situation. Consequently, the article 45 is deleted and the Government enacted Constitution (86th amendment) Act, 2002 has added a new article 21A and has made a education for all children of 6 to 14 years a fundamental right. It provides that “the state shall provide free and compulsory education to all children of the age 6 to 14 years in such a manner as state may, by law determine.”

Ultimately after a lapse of 8 years for enforcement of 86th amendment Act, 2002 Parliament has passed the Right of children to Compulsory Education Act, 2009. It provides responsibility of the Central & State Gov., teachers, parents, and community members in ensuring that all children of the age of 6 and 14 years received free and compulsory education.




Despite of constitutional provisions and legislative enactment passed by the Legislature which provides free and compulsory education to all children of 6 to 14 years of age is not achieved. This is a big problem and has remained unsolved, even after 67 years of independence and even today elected government of the country did not take any concrete steps to implement Article 21A from that 30% population of the country is still illiterate.

On coming on the first issue the main reason behind that the population of the country has considerably increased and number of children of age from 6 to 14 are in crores. The government does not have money at present to run its own educational institutions. Majority of higher secondary schools are run by private persons where there is no provision for free education. They charge high fees. Only middle class and rich peoples can afford to send their children to these schools. Today there are no schools how would government implement it? If proper amounts of schools are there the court will obliged to give an order for its enforcement.

On coming on the second issue reservation for SEBCs under the minority educational institutions is not valid. Under article 30 of the constitution of India tells about the Right of minorities to establish and administer educational institutions- it provides that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

In other words, religious and linguistic minorities have a special constitutional right to establish and administer educational schools of their choice and Courts has repeatedly held that the State has no power to interfere with the administration of minority institutions and can make only regulatory measures and has no power to force admission of students from amongst non-minority communities, particularly in minority schools, so as to affect the minority character of the institutions.

There is a National Commission for Minority Educational Institutions which was established to protect and safeguard the educational institutions which are established by the minorities in India. This also ensures rights of minorities to establish and administer educational institutions of their choice as provided in the Article 30 of the Constitution of India.

Here are some cases who describe about that why SEBCs reservation is not included in Article 30(1):-

In Dr. M. Ismail Faruqui and Others v. Union of India and Ors[3].-In this case the Court has held that the Preamble of the Constitution read in particular with Articles 15 to 28 indicates that the concept of secularism embodied in the constitutional scheme is adopted by the Indian people. Hence, secularism is no doubt a basic feature of the Constitution, but we fail to appreciate how clause (5) of Article 15 of the Constitution which excludes religious minority institutions in clause (1) of Article 30 of the Constitution is in any way violative of the concept of secularism.

In Smt. Vidya Verma v. Dr. Shiv Narain Verma [4] case that the fundamental right of personal liberty under Article 21 of the Constitution is available against only the State and not against private individuals. He submitted that, therefore, the word “State” in Article 21A of the Constitution would not include private unaided educational institutions or private individuals.

In Kerala Educational Bill case to argue that admitting children other than those of the minority community which establish the school cannot be forced upon the minority institutions, whether aided or unaided.

Also in the Right of children to Compulsory Education Act, 2009, in particular Sections 12(1) (c) and Section 18(3), infringe the fundamental rights guaranteed to unaided minority schools u/a 30(1) of the Constitution and therefore the Act shall not apply to such unaided minority schools.

In Society for Unaided Private Schools of Rajasthan v. Union of India[5]-The court has taken a view that the 2009 Act will not apply to unaided minority schools but will apply to aided minority schools.


The 2009 Act was amended by the Right of Children to Free And Compulsory Education (Amendment) Act, 2012, so as to provide in subsection (4) of Section 1 of the 2009 Act that subject to the provisions of Articles 29 and 30 of the Constitution, the provisions of the 2009 Act shall apply to conferment of rights on children to free and compulsory education.  So, 2009 Act will not apply to unaided minority schools but will apply to aided minority schools.


In India minority generally consists of Christians (2.5%), Sikhs (2%), Jain (1%) and Muslims (12%), which is world’ third largest. In India majority consist of Hindus, their population includes more that 80% of India’ population and constitution of India provides for special rights to both linguistic and religious minorities “to establish and administer educational institutions of their choice” under Article 30. As in the St Xavier’s College[6] case, the Supreme Court has rightly pointed out, “The whole object of conferring the right on the minorities under Article 30 is to ensure that there will be equality between the majority and the minority. If the minorities do not have such special protection they will be denied equality.”

The only alternative is to encourage nongovernmental organisations to come forward and participate it in to fulfil the mandate of constitution but There should also be necessary steps should be taken by the Government that to run its own institutions, help the NGO’s and to see that teachers and employees working in these private educational institutions get minimum salary to survive and make the scheme successful.

[1] AIR 1992 SC 1858

[2] (1993) 1 SCC 645

[3] AIR 1994 SC 547

[4] AIR 1956 SC 108

[5] AIR 2012 SC 3445

[6] AIR1974 SC 1389

Mayank Shekhar
Author: Mayank Shekhar

Mayank is a student at Faculty of Law, Delhi University. Under his leadership, Legal Bites has been researching and developing resources through blogging, educational resources, competitions, and seminars.

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