Reality check The RTE Act 2009 and the RTI Act 2005 Its impact on Minority Educational Institutions Following harassment of minority educational institutions by the authorities in Dhanbad district of Jharkhand, Fr. Gerald Ravi D’Souza, SJ, of De Nobili School throws light on RTE Act and its impact on minority institutions T he time has come to clear our doubts and know the applicability of the RTE Act 2009 and the RTI Act 2005 for minority institutions. Often people are misguided without making efforts to know which institution is minority and non-minority. An institution is not granted minority status just based upon the 50% or more enrollments of minority students. It is purely granted based on the two essential conditions i.e. who established the institution and whether it is maintained by a person or group of persons from amongst the minorities. A “Minority Educational Institution” means an institution established and administered by the minorities under clause (1) of article 30 of the Constitution and so declared by an Act of Parliament or by the Central Government or declared as a minority educational institution under the National Commission for Minority Educational Institutions Act, 2004. The Hon’ble Supreme Court after marathon hearings and prolonged deliberations has pronounced its judgment on April 12, 2012. The minority judgment delivered by one of the three 0202 INDIAN CURRENTS 06 - 19 April 2015 judges held that the provisions of the Right of Children to Free and Compulsory Education under RTE Act 2009 can be enforced against the schools u/s 2(n) of the said Act except Unaided Minority Schools not receiving any kind of aid or grants to meet their expenses from the Appropriate Government or Local Authorities. This decision of the Hon’ble Supreme Court dated April 12, 2012, is well known to the Education Departments since three writ petitions were collectively taken up for hearing by the Hon’ble Chief Justice of India along with Hon’ble Justice Mr. K.S. Radhakrishnan and decided in which the Education Departments also represented. However, they seem to be novices to these and trying to enforce them on institutions which are exempted by the Hon’ble Supreme Court. Aggrieved by this majority view judgment, the aided minority institutions challenged it with writ petition (C) No 416 of 2012. Delivering the landmark judgment, the Constitutional Bench of the Supreme Court upholding the petitioner’s point, it concluded that as minority institutions (aided/unaided), the provisions of the Right of Reality check O Jharkhand Christian Schools Targeted fficials of Christian schools in Jharkhand’s Dhanbad say district officials accused them for faulting rules of Right to Education (RTE) Act, and threatened action without considering their rights as minority institutions. As many as 48 principals from higher secondary schools in the district, including catholic schools, were summoned on March 25 to the meeting at the deputy commissioner’s office by Dhanbad superintendent of education (DSE) Bankey Behari. But representative of De Nobili group of schools Father Gerald D’Souza and Margaret Mary principal of Carmel School in Dhanbad alleged the officials singled them out and targeted them, accusing them of faulting in the implementation of the RTE. “The DSE asked me to leave the hall as I am not a principal but a representative of the eight De Nobili schools. I was called rule flouter by Manoj Mishra, secretary of Jharkhand Abhibhavak Manch,” D’Souza said. Dhanbad’s additional collector B.P.L. Das chaired the meeting that was attended by Behari and members of Jharkhand Abhibhavak Manch. Das asked all schools to abide by the RTE Act and submit action-taken reports furnishing all information by March 31. He gave schools time to implement all rules till April 15 and warned of action in case of any complaint. Sister Margaret Mary said the Supreme Court has allowed certain privileges to Christian minority schools in implementing the RTE, which aims to help government to provide free education to children. “We (Christian minority institutions) cannot be forced to abide by rules blindly,” she said. Refuting the allegations, additional collector Das said: “No one was insulted. We only asked all the schools to adhere to the RTE Act,” the Telegraph reported. (UCAN) Children to Free and Compulsory Education are not applicable to them vide judgment in Pramati Education and Cultural Trust Versus Union of India [vide (2014) 8 SCC page 1 (269-271)]. When we closely look at the applicability of the RTE and RTI Acts, there is a big difference between these two, more particularly the implementation of the provisions of the RTE Act in private aided and unaided minority schools at the behest of the judgment of the SC on 12.04.2012. There is also a big difference between the institute on aid (one time if we say the land and building) and aided institute. An unaided minority school does not come under the RTE Act or a public authority under RTI Act. Aid means and is recurring in nature and public authority means which is established by the enactment of parliament or assembly and /or its day to day administration is monitored and interfered with by the state as defined under article 12 of the constitution. Almost all private schools are under the assistance of the respective state Govt. in our country which includes onetime support of giving land and building and in some cases the MLA and MP lad fund also supports schools. This is not the aid and definitively not an aided school. To become a public authority, an institution has to An unaided minority school does not come under the RTE Act or a public authority under RTI Act be an aided by the government and has to be established by the enactment of parliament or assembly. This fact is well laid down by the Hon’ble Bombay High Court in writ petition number INDIAN CURRENTS 06 - 19 April 2015 21 Reality check Those who are forcing the unaided minority institutions to implement the RTE Act, contrary to the Supreme Court’s verdict, are in all probability violating the apex court’s judgment 5576 of 2013 with CA No. 1885 of 2013 in The Society of St. Mary’s School & Another Vs. The Pune Zilla Parishad & Others. Arguing the case in favour of the petitioners, the two bench court held that a school becomes aided school provided it receives aid or grants in terms of money to meet whole or part of its expenses. Obviously, for running a school, there is recurring expenditure on the payment of salaries and allowances to the teaching and non-teaching staff, maintenance of the school building and purchase of articles such as stationary etc required for day-to-day functioning of the school. If any amount is received by a school either from any Appropriate Government or a Local Authority to meet whole or a part of such expenditure, a school can be treated as an aided school. One time aid to a school for infrastructure etc. to run with private management without any recurring aid from and without interference by the Govt. into its administration and day to day affairs does not mean a public authority u/s 2(h) of the RTI Act. Mere representation of a member of the Govt. in the managing committee or advisory body of the school cannot change its nature, character and status from private to Govt. nor can convert the school an aided one 2222 INDIAN CURRENTS nor can entitle our school to claim and get aid therefore. There is a lack of desire to know from the part of the authorities concerned in the department Those who are forcing minority institutions to implement the RTE Act are in all probability violating the SC judgment in 2012 of education to learn the amendment made in the RTE Act 2009 on June 19, 2012. However, there is also a deep ignorance and arrogance reflected by their statements and comments towards the implementation of the judgment of the SC in its right spirit. The recent press statements of Mr. Banke Bihari Singh (DSE), Dhanbad District RTE & RTI nodal officer, clearly sends out signals of harassment and torture that is meted out to the minority community school 06 - 19 April 2015 authorities. The officers of such rank cannot blindly ignore the facts and figures, notifications and judgments before issuing press notices and letters to the institutions. Those who are forcing these institutions to implement the RTE Act, contrary to the SC’s verdict, they are in all probability violating the Hon’ble SC judgment. Just because any officer in the Education Department on the face of the allegations of some miscreants for non implementation of the RTE Act, cannot enforce to implement some provisions thereof, without verifying the correct position of law. It is found that in Dhanbad District of Jharkhand State, the Nodal officer of RTE Act 2009, Mr. Banke Bihari Singh (DSE), seems to tarnish the image of the prestigious schools by issuing letters to the press, its authorities and community which is not expected from a govt. official of his stature. The minority institutions need no exception nor pitied by anybody except implementation of the judgment of the SC in its right spirit. Those who are forcing these minority institutions to implement the RTE & RTI Acts, contrary to the SC’s verdict, to ensure that none is transgressing any law or committing any contempt of the court.