IN THE HIGH COURT OF KARNATAKA AT BANGALORE

(oRtctNAL JURtSDtCTtON)

W.P. No.$p2014

BETWEEN:

1. The Azim Premji Foundation#134, Doddakannelli,Next to Wipro Corporate OfficeSarjapur RoadBangalore - 56003SRepresented by its Chief Executive Officer

AND

1. The State of KarnatakaRaj Bhavan Road " (q.t fgl"lovovr.Bangalore - 560001

o**{-ic+ by the GovernorQ.cfx&heulqrA B.l +vre Se.cre-(o\rY .

2. State Government of KarnatakaEducation Department (primary and secondary Education)M.S. Buitding,Bangalore 560 001Represented by its principal Secretary

3. State Government of Karnataka,Department of public lnstruction,Central Junior College Ground,Kempegowda Road,Bangalore - 560002Represented by its Commissioner

4. The State Government of KarnatakaDepartment of Women and Child WelfareM.S. BuitdingBangalore-560001 .

Represented by its principal Secretary

5. National commission for Minority Educational lnstitutions,Gate No.4, 1't FloorJeevan Tara Building5, Sansad Marg,Patel Chowk,New Dethi - 110 001Represented by its Chairman

6. Union of lndiaNational Commission for MinoritiesSth Floor, Lok Nayak Bhavan,!Khan Market, New Delhi 110 003Represented by its Chairperson

7 Karnataka State Minorities Commission5 Floor, Vesveshwariah T'ower(M)!Dr. B.R, Ambedkar VeedhiBangalore - 560 001

...PETITIONER

N{inistry of Hur:an Rescurces Deve;oprnentDepartment of School Education and Literary

Shastri BhawanNewDelhi -110001Represented by its Secretary ... RESPONDENTS

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MEMORAN OF WRIT TION U ARTIC AND 2

CONSTITUTION OF INDIA

.he Petitioner above-named most respectfully submit as follows:

1. This petition is filed as a public interest litigation challenging the 1't

Respondent's Order No. ED 27 MAHITI 2012 (Part 'l) Bangalore, dated 18-6-

2014 that has drastically reduced the minority requirement for schools in

Karnataka, thereby rendering ineffective the right to education of children under

Article 21A of the Constitution and also expanded the protection to minority

educational institutions beyond the coverage of Article 30 of the constitution.

Ttre said Government Order states that a school seeking linguistic/religious

minority status must, among other things, have only 25% of its total student

strength made up of students from the concerned religious or linguistic minority

community. This is a drastic reduction from the previous mandate of 75% of the

student strength to be from the concerned minority category. This arbitrary

reduction to 25% of student strength when seen together with the recent

Supreme Court ruling in Pramati Educational and Cultural Trust v. Union of

lndia, WP (C) 416t2012 ("Pramati") lhat excluded minority schools from the

Right of Children to Free and Compulsory Education Act, 2009 ("RTE Act"), has

the effect of a large number of schools rushing to be declared as minority

schools without having to show that even a majority of its students are from a

religious or linguistic minority or that they have any intention of serving the

interests of the minority community. Further, under the garb of being a minority

schools, such schools seek to exclude themselves from following the RTE Act,

thus unclermining the right and interest of a child under Article 21A of the

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canstitutionr of lndia. This runs contrary to the airn and objective of protection to

nrncrities under Articles 29 and 30 0f the constitution of lndia and also the right

io free and compulsory education of a child under Article 21A of the

constitution, Further, by seeking minority status, these schools are in reality'

seeking exemption from the entire RTE Act' The judgments of the supreme

court that excluded minority schools from providing reservation under the RTE"

Act only excluded minority schools only from following section 12 and 1B' Later'

the Hon'ble supreme court in Environment and consumer Protection

Foundation v. Delhi Administration and others, wP (C) 631t2004 obligated

all schools including minority schools to provide separate toilets' drinking water

facilities etc and all other requirements as provided for under the RTE Act' ln

light of this decision, it is necessary to clarify that even schools that obtain

minority status recognition are obligated under other requirements of the RTE

Act such as norms and standards, prohibition of holding back and corporeal

punishment, and other requirements of quality education' Hence this Petition'

(A Certified Copy of the 1't Respondent's Government Order No' ED 27 MAHITI

2012 (Part',l) Bangalore, dated 18-6-2014 is annexed herewith and marked as

ANNEXURE - A)

ARRAY OF PARTIES:

2. The petitioner is the Azim premji Foundation, a non-profit organization that has

been working in the field of education in lndia for the last thirteen years' lt is a

not-for-profit company incorporated under section 25 of the companies Act'

lgs6.TheFoundationhasbeenoperationalsince200l.TheFoundationtoday

works in I states, which together have more than 3,50,000 schools through a

committed workforce of nearly 1000 professionals' The Foundation's work on

education focuses mainly on the quality of education in rural gr:vernment

schools and in-depth research and impact assessment' lts Board of Directors

comprise of eminent citizens such as: Mr. Azim Premji (chairman' wipro); Mr'

Sharad Chandra Behar (Former Chief Secretary, Govt. of Madhya Pradesh);

Mr. Rishad Premji (Head - special Projects, wipro Technologies); Mrs'

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':s-e=: P:emji tDirector. Azim Prem;l Fc-r-cation): Mr. P.M. Sinha lFormer

l-: *ar Pecsi India): and Mr. N. Vaghul (Former Chairman, ICICI)

: s submitted that the Foundation works in collaboration with State

3:.e-:rnents and engages with teachers, teacher educators, head teachers,

: ::< and cluster level education officials, senior government functionaries and

:: :,i makers at the state and national level. This has been done by the Field

-st:utes of Azim Premji Foundation, which includes State lnstitutes in the

:.ac;tals of select lndian states, and several District lnstitutes within these

s:a:es. The Foundation, today, has institutes that are located at Karnataka

Eangalore, Yadgir, Mandya and Gulbarga), Rajasthan (Jaipur, Sirohi, Tonk,

3armer and Rajsamand), Uttarakhand (Dehradun, Uttarkashi, Udham Singh

Nagar and Almora), Bihar (Patna), Chhattisgarh (Raipur and Dhamtari),

[,;ladhya Pradesh (Bhopal) and Puducherry. At many of the District lnstitutes,

schools have been established. These schools provide quality free education to

the local community, at costs and constraints similar to that of rural government

schools. Over the next few years, the Applicant Foundation plans to have about

50 District lnstitutes, 30 schools and over 4000 teachers and staff.

It is submitted that, since the Foundation is committed to ensuring good quality

education for all children as per Article 21A and the RTE Act, the Foundation

has made successful interventions in the Supreme Court and High Court of

Karnataka on matters concerning the constitutional validity of the RTE Act and

Article 21A of the Constitution. ln Sociefy for Unaided Private Schoo/s of

Rajasthan v. lJnion of lndia, (2012) 6 SCC 1, ("Sociefy') where several

private schools challenged the provisions of the RTE Act, the Foundation

was the only representative on behalf of the rights of the child and

successfully made a case for the horizontal application of fundamental

right to education of the child on private schools. Further, in Pramati,

where unaided minority and non-minority schools again challenged the

RTE Act, Article 21A and Article 15(5) of the Constitution, the Foundation

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again argued that the interests and righE of child are paramount and have

b prevail over the rights of the school owners to engage in an occupation

nrnder Article 19(1Xg) and enjoy minority rights protection under Articles

29 and 30 of the Constitution. The Foundation has also been impleaded as

a party Respondent in a W.P. 44968-69/2012 betore this Hon'ble High

Court where certain schools/societies are seeking minority status. Further

the Foundation is impleaded as party Respondent in a suo moto petition

W.P. 15768t2013) of this Hon'ble Court concerning the implementation of

the right to education laws regarding out of school children. Therefore the

Foundation has been actively representing the rights of the child under Article

21A and the RTE Act in the Supreme Court and is thus well informed and

competent to elaborate and clarify the rights of the child in this petition vis-d-vis

the rights of minority educational institutions. Further, the Foundation has a

bona fide interest in promoting quality education in the country and thus has the

/ocus standito file this petition.

5. The 1't Respondent is the Governor's Office in the State of Karnataka on whose

behalf the impugned Order dated 18-6-2014 was issued. The 2nd Respondent is

the State Department which is in charge of the primary and secondary

education in the State. The 2nd Respondent issued the impugned Order dated

18-6-2014 on behalf of the Governor, Respodent No. 1.

6. The Respondent No.3 is the Department of the State Government which deals

with all matters pertaining to public education and receives instruction from the

education deparment on rules applicable regarding primary and secondary

schools.

7. The Respondent No.4 is the Department in charge of welfare of the child in the

State of Karnataka. lt forrnulates policies, programmes and schemes and also

co-ordinates governmental and non-governmental working on the welfare of

chlildren.

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Respondent No. 5 is the statutory body set up under the National Commission

fcr Minority Educational lnstitutions Act, 2004. It has the powers to declare the

status of an educational institution as a minority educational institution and also

advise the Central and State Governments on any question relating to the

education of minorities.

9. The Respondent No. 6 is set up under the National Commission for Minorities

Act, 1992. Respondent No. 7 is the State Commission in Karnataka also set up

under the same Act. The functions of these Commissions, inter-alia, are to

safeguard and protect the interests of minorities provided in the Constitution

and laws enacted by Parliament and the State Legislatures. The Commissions

also have provisions for grievance redressal to aggrieved persons belonging to

minority communities.

10.The Respondent No. 8 is the Ministry in charge of formulating national policies

on primary education in lndia and also is responsible to ensure the

implementation of policies such as Sarva Shiksha Abhiyan (SSA), National

Policy for Education and Universal Elementary Education (UEE) in alignment

with the legally mandated norms and standards and free

entitlements mandated by the RTE Act.

BRIEF FACTS:

11.lt is submitted that in 2009, Parliament introduced the Right of Children to Free

and compulsory Education Act, 2009 ('RTE Act"). The RTE Act is the first

central legislation that takes progressive measures towards ensuring free and

compulsory education to every child from the age of six to fourteen years in the

country. Therefore the RTE Act is a statutory measure to realize the guarantee

of the fundamental right of every child under Article 21A of the constitution.

Under the RTE Act, there are provisions relating to:

(i) section B(q), 9(h), 18(2). 19 and Schedure: Basic norms and

standards that every schoof. boin prrvate and public, shourd complyyrith such as pupil teacher ratio, mid_day meals, drinking water,

;:: separare toitets for sirls and boys, disability access among

fii) Section 12. Every private una ided school is required to provide freeseats upto 25% of their seats in crass 1, to chirdren from weaker anddisadvantaged groups. private aided schools are rrree education to rhe crass .,r"r";; ,:::::"

required to provide

by the school.

' 'v !r re urass stl"€r'lgth in proportion to the aid received

section 16: prohibits schoors from hording back or expering any chirduntil the completion of elementary education.

Section 17: prohibits physical punishment and mental harassment ofthe child in any schoot.

12'The constitutionality of the RTE Act was first chalrenged before a Fu, Bench ofthe Hon'ble supreme court in society for unaided private.schools of Rajasthanv' union of rndia, (2012) 6 scc 1. The Hon,bre court upheld the varidity of theRTE Act, but held that the RTE Act, particutarty Section 12()(c)and 18 (3)would not apply to unaided minority schoors. The Hon,bre supreme court in theSocrefy,s judgment held as under:

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rt;,y**:i**ri;it"txii,t{ri,'!ffi13' rt is submitted that the main import of the above judgment qua unaided minorityschools is that in view of Articles 2g and30 of the constitution, the mandate ofSection 12 U) (c) of the RTE Act requiring them to make ddmi.scin^- ;^ _

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certain manner would be a violation of their right to establish and administer

their own educational institutions for the preservation of their culture, language

and religion as 25o/o non-minority students would alter the predominance of

minorities in such schools. Therefore, the judgment granted minority protections

only to schools that primarily enrolled students belonging to the minority

community with a permissible sprinkling of students from the non-minority

communities. ln other words, the court envisaged that minority schools would

have more than 75oh of minority students, as only then would 25% non-minority

students affect their minority status.

14.It is submitted that, thereafterthe RTE Actwas once again challenged before a

constitutional bench of the Hon'ble Supreme Court in Pramati Educational and

Cultural Trust v. Union of lndia, WP (C) 41612012 as being violative of the

basic structure of the constituion. ln this case, the Hon'ble Supreme Court

exempted even aided minority institutions from being required to make

admissions under Section 12 (1) (c) of the RTE Act to children from

economically backward and disadvantaged groups.

'l5.lt is submitted that the onus has always been on the State Governments to

formulate strict criteria for definlng a religious or linguistic minority educational

institution. At the central level, The National Commission for Minority

Educational lnstitutions Act, 2004 (NCMEI Act) does not exclude the State

Government from identifying minority communities in the State of Karnataka. ln

Section 2(f1 and (g) of the NCMEI Act "minority" and "minority educational

institution" are defined as under:

2(f): "minority ,"for the purpose of this Act, means a community notified as suchby the Central Government

2(g) "Minority Educational lnstitution" means a college or an educationalinstitution established and administered by a minority or minorities;

Therefore identification of a minority as notified by the Central Government is

onlv for the Durooses of the NCMEI Act and does not exclude other

\l-l)comrnunrtjes f:om being notified as minorities by the state Governmen*WFurther' it is not crear if a schoor fars under the definition of ,,minorityeducational instrtution". section 11$) of the Act provides that one of thefunctions of the commission is to "decide ail questions rerating to the status ofany institution as a Minority Educationar rnstitution and decrare its status assuch"' The commission has issued a Notification No.F. 7_5tvoo5_Mc(p) dated18-01-2005 identifying Muslim, Christian, Sikh, Buddhist and Zorastrian

religious communities as minority communities. The commission has notidentified any particurar rerigious or ringuistic community as a minority in thestate of Karnataka' Hence, this exercise of power under the centrar Act in nowway excrudes the power of the state Government to identify the minoritycommunities in the state as per supreme court precedent and the RTE Act.since education is a concurrent List subject, the state is not excruded fromlegisrating on the minority status of schoors providing primary education.(A Copy of the Notification No.F. 7-5/2005-r\AC(p) dated 18-01-2005 is annexedherein and marked as ANNEXURE - B )

1.'Accordingly' 1't Respondent by order No. lD s NMc 2002 dated 2o-T-2004 hadcreated a screening committee that wourd screen primary and high schoorsseeking to be recognised as minorities and it laid down certain criteria thatwould define whether an educational institution wourcl be a rerigious or ringuisticminority school or not. These criteria are:(i) That the TrusUsociety that has established the school must be dulyregistered.

(ii) That 2/3rds of the members in

Society that established the

linguistic/religious minority.

(iii) That members of the Management who berong to the concerned minoritycommunity must produce caste/rerigion certificate issued by the Tahsirdar.(iv)A',east 50% of the student strength in the schoor must be from theconcerned minority community

the Management Committee of the Trust /school must be from the concented

(A Copy of the Government Order No. lD 5 NMC 2002 dated 20-7-2004 is

herewith produced and marked as ANNEXURE - C)

17. lt is submitted that subsequently, by Government Order No. lD 22 MPS 2005

dated 12-12-2006, the 1't Respondent issued a Corrigendum whereby it

replaced the requirement of 50% minority community student strength with a

requirement that the student strength from the minority community in the school

shall be proportionate to the population of the concerned minority group in the

area where the school is established. Therefore there was no fixed percentage.

lnstead, it was to be determined based on the population for each area. This

rationale was on the face of it erroneous, because the percentage of minority

population does not control the percentage of the minority students enrolled in

minority school.

(A copy of the State Government Order No, lD 22 MPS 2005 dated 12-12-2006

is annexed herein and marked as ANNEXURE- D)

18.Thereafter by another Government Order No. lD 27 MAHITI 2012 (Part 1)

Bangalore dated 24-7-2012, the 1't Respondent once again revised the minority

student strength requirement in primary and high schools. This Order dated 24-

7-2012 required schools to ensure that atleast 75% of the student strength in

every academic year was from the minority community that the school sought to

be recognised under. Therefore, this Order dated 24-7-2012 brought back a

clear criteria that complied with the observation of the court in the Sociefy case

and would ensure that only those schools that had a clear objective of serving

the interests of the minority community would be entitled to be declared as a

minority school.

(A copy of the Government Order No. lD 27 MAHITI 2012 (Part 1) Bangalore

dated 24-7-2012 is annexed herein and marked as ANNEXU.BE - E)

19. It is submitted that the Government Orders that establish a criteria to identify

minority schools seek to ensure that there is a dominance of members of the

@religious/linguistic minority group both in the management of the schoor (2/3rds)and arso the student strength (75%).This criteria was not set arbitrariry, but in

consonance with the interpretation of the right of a minority comrnunity to"estabrish and administer" an educationar institution and in line with the varioussupreme court decisions' This right enjoys a speciar status under Articre 30 0fthe constitution and therefore has been carefuily scrutinised by the supremeCourt so as to ensure that it is not abused. .llhe Hon,ble Supreme Court in

cases such as Azeez Basha v. union of hdia,AIR 196g sc 662, A. p.Christian tVledicat Educationat Society v. Government of A. p., 1986 e)SCC 667, St. .1s6r,, Teacher Training lnstitute for Women, Madurai v.Sfafe of Tamit Nadu,A,R 1gg4 SC 43, TIWA paiy Sfafe of Karnatuka

eO02)g scc 481 and Dayanand Angto vedic cortege Trust v.sfafe oflWaharashtra (2013) 4 SCC 14 madeit clear that to claim minority status, a

school should be both established and administered by minorities. Further, inorder to retain its minority character, a schoor must primaritycater to theconcerned minority community; but.may have a sprinkring of outsiders.

20' rt is submitted that despite this cautious approach, severar private schoorsstarted approaching this Hon'ble court, craiming to be ringuistic/rerigiousminority schoors' Many of these schoors do not futfit anyof these criteria andthe only purpose of seeking minority status is to escape from their obrigationsunder the RTE Act. Some of these schools also filedthe Government Order dated 24-7-,

writ petitions challenging2012 on the ground that the fixation of 7S%

student strength is violative of their rights as minority schools. Some of thesepetitions are currenfly pending before this Hon,ble Court. The petitioner

hasalso irnpleaded in some of these petitions.(A rist of the petitions fired before this Hon,bre court on the minority status craimis annexed and marked as ANNEXURE _ F)

21.|t is submitted that by communication No.

the 2no Respondent sent a Draft of the

lD 0S SMC 2013 dated 22/10/201g,Karnataka Educational lnc+i+,,+;^.,

b

(Recognition of Minority Educational lnstitutions Terms and conditions) Rules,2013 to the 1't Respondent. These Rules were proposed to be made undersection 145(1) of the Karnataka Education Act, 1gg3. These Draft Rules alsocontained the etigibility criteria for recognition of a minority. Under Rule 3(6) itspecifically provides that in order to be eligibre to be recognized as a minority,"75o/o of the children enrolled in the said lnstitution shall belong to the minoritycommunity of the applicant". Therefore it is clear that the state Government hada uniform policy of ensuring that there is regulation of student strength so as toensure minority community predominance among the students.(A Copy of the

Draft of the Karnataka Educational lnstitutions (Recognition of MinorityEducationar rnstitutions Terms and conditions) Rures, 2013 is annexed and

22'However, in vioration of the state poricy and the supreme court judgements onreligious and linguistic minorities, the Respondent state Government revisedthe criteria for minority schools once again. presenly a new Government orderhas been issued reducing the requirement of the minority student strength inthe schools from 75% to 25% student strength by order No. ID 27 MAHtrl 2012(Part 1) Bangarore dated 1g-06-2014 marked as Annexure - A. ThisGovernment order does not disclose any justification for the 2s%limit and iscompretery arbitrary and contrary to the decisions raid down by the supremecourt that mandate that in order to preseve the minority character, educationarinstitutions must primariu caterto students from the minority.

23' lt is submitted that the decisions in sociefy and pramafi exempted minorityschools from making reservations as per section 12 0f the RTE Act. Thesupreme court substantially discussed only section 12 and its constitutionalvaridity' Therefore these decisions did not exempt minority schoors fromfollowing quality education provisions of norms and standards under the RTEAct' rt is submitted that other requirements on prohibition of screening

)

f_)'mrrr:?:--= :-:^ b trcn of corporeai pun sn-rrenl. holding back and compliance

,iuffifl' -:"-s ::: standards must still be applicable to these minority schools.

lqu --','--:3-3nial right to education also includes the right to good quality

*:-::a::- -i-nerefore all children, whether in minority or non-minority schools

:-: .-:'- ei to receive good quality education with minimum facilitieS as laid

:-,',- JnCer the RTE Act. Exempting minority schools from the entire RTE Act

'', -rCermine the fundamental right to education of a child. According to the

:-a rtical Report prepared by the State Government for 2011-11, Karnataka

-as 10.960 private unaided schools and 2,567 aided schools. Out of this,

- nority status recognition is granted to 1059 schools. Therefore about 10% of

:'e private schools in Karnataka have been declared as minorities and will not

oe obligated to follow minimum quality education norms and standards if they

are exempted from the entire RTE Act.

(Relevant Portions of the Copy of the State - level and District-wise Analytical

Report Prepared by the Department of Education, Government of Karnataka is

annexed herein in marked as ANNEXURE - H)

( A List of the number of schools granted minority status recognition is annexed

herewith and marked as ANNEXURE - J)

25. Reports have detailed the lack of adequate infrastructure and good quality

education in schools in lndia. A study by the RTE Forum found that gS% of

schools in lndia do not comply with RTE standard infrastructure. A study by the

National University for Educational Planning and Administration (NUEpA) founcl

that nearly 30o/o of schools in Karnataka do not have boundary walls to the

schools and 35% of schools do not have ramps to make it accessible for

children with locomotive disability. According to the Analytical Report marked as

Annexure - H, around 30% of schools in Karnataka do not have good condition

classrooms. Further, countrywide statistics show that 33% of schools do not

have boys' toilet and 12o/o do not have girls toilets in lndia. Therefore there is a

need to ensure that schools are regulated to'ensure compliance of minimum

l

G)standards under the RTE Act. Recognizing this situation of the educationsystem in the country, the Hon'ble supreme court in Environment andconsumer protection Foundation v. Dethi Administration and others, wp(c) 63112004, gave out directions to the Government to ensure fu,imprementation of the RTE Act to ensure basic facirities such as separatetoilets, drinking water facirities, good quarity crassrooms etc. rn its judgmentdated Z-10-2012, the Hon,ble Supreme Court held,

"we are' inclined-to drspose of this \rit petition with a direction to alt thesrares to sive grr.ggt l;'i;";;r,t airectiiii-i'riuav siven by this courttike providino toitet iriiriirtT"i p?v,, i;;; ;;;,-irinrlns *uiu, raci**s,sufficient "6: r?oms, uppoiii*i

^or tiuiiig-una nonleachins staffetc'' if not atready..prou,[{a","*ithi,

s.ix months-ri, bday. we iaie itcrear that these airectiiis' ,,r"'rppti".rntr-i. iiiine schoo/g whetherilil:;riled or privatervTili"ri,'riaiJ ii"uir,ird, minority or non_

Therefore' the Hon'bre supreme court has crearry appried other requirementsunder the RTE Act to all schools irrespective of their constitution. Therefore,provisions on norms, standards and others on quarity education are equaryapplicabre to minority schoors. Removing minority schoors from the purview ofthe entire Act will be a several steps backwards in ensuring that schoors havebasic facilities to provide good quality education.(The news report in First post tifled ,,No water, No Toiret : gg%schoors in rndialack RTE infrastructure" dated 8.4.2012 is annexed herewith and marked asANNEXURE _ K}

(Rerevant portions of the Report entired ,,Erementary Education in

do we stand?" 2012-13, prepared by NuEpA is annexed herewithas ANNEXURE _ L)

26' lt is submitted that this Government order dated 1g-6-2o14has the effect ofpermitting schools that have only 25% of students from a rerigious or linguisticminority community to quarify as a minority schoor and obtain exemption fromcomprying with the RTE Act. This wourd exempt a rarge number of private andaided schools in Karnataka and render the RTE Act infructuous and effectiveryir)annlir.ahta ]^ ^-;..-r

lndia: Where

and marked

not serve minority interests get minority status this order denies chirdren thebenefit of Article 21A and the RTE Act. These benefits incrude admissions tochildren from disadvantaged groups, protection of chirdren ;r, physicar ormental harassment and norms and standards that ensure provision of basicamenities in schools' Therefore, in order to protect constitutionar fundamentarrights of the child under Article 21A andbarance it with the minority protectionsunder Article 30' it is necessary to retain the Government order dated 24-07-2012 and to set aside lmpugned Order dated 18_06_2014.

27 'with these submissions the Petitioner herein made a representation dated 20-g-2014 to the Respondent No. 2 seeking praying for reconsideration andrevision of the lmpugned order dated 1g-6-2o14and arso for crarification thatthe other requirements under the RTE Act would apply to minority schools.

#||]t the Petitioner has not received any response tiil date. Hence this

(A copy of the representation sent by the petitioner dated 2O_B_2014 isannexed herein and is marked as ANNEXURE _ M)

28' The Petitioner having no other alternative and equary efficacious remedy andthe Petitioner has not filed any other petition on the same cause of actionbefore this Hon'bre court or any other forum. The petition is filed on thefollowing among other grounds:

GROUNDS:

29' THAT the action of the 1't Respondent in issuing the impugned order dated18-6-2014 is completely arbitrary, illegal and defeats the purpose of theprotection afforded to minorities' The drastic reduction in the requirement ofminority student strength from 75% to 25%is whoily arbitrary and unreasonableand cannot be justified as a protection of any of the rights of any individuar orcommunity under the constitution' Therefore the siio rmpugned order dated18-O-2014 deserves to be set aside.

30. THAT the impugned Order dated 18-6-2014 violates the rights of the child

under Article 21A of the Constitution of India. ln Unnikrishnan v. State of

Andhra Pradesh, AIR 1993 SC 2178, the Hon'ble Supreme Court declared that

every child up to fourteen years has the fundamental right to free and

compulsory primary education. Subsequently, Article 21A was introduced"by the

Constitution (Eighty Sixth Amendment) Act, 2002 guaranteeing free and

compulsory education to all children of the age six to fourteen in such a manner

as the State may, by law, determine. The aim of Article 21A is to ensure that

every child has access to free and compulsory quality education. The

fundamental right to education includes the right to good quality education that

follows certain minimum standards and thus the RTE Act was enacted to further

this right. However, schools are seeking to escape from their obligations

towards quality education by citing the decisions in Society and Pramati and

claiming to be minority schools. This escape is made easier under the

lmpugned Order dated 18-6-2014 which dilutes the minority student strength

requirement. Therefore, a school can easily claim minority status by including

only 25% of student strength with minority community children and then escape

from all obligations towards the fundamental right to education of a child. Thus

the lmpugned Order is in violation of the objective behind Article 21A and thus

deserves to be quashed.

31 . THAT the lmpugned Order violates the rights of the child to access to education

under the RTE Act. The purpose of introducing the fundamental right to free

and compulsory education was to ensure that every child has access to good

quality education including in private schools. With the introduction of the RTE

Act that covered private schools as well, further strength was given to this

purpose. The impugned Government order allows for a complete negation of

the RTE Act by allowing private schools to declare themselves to be minorities

and seeking exemption from following the entire RTE Act even when they have

only 25% of their student strength from the religious and linguistic minority

communities. The impugned Order dated 18-6-2014 has diluted and drastically

reduced the requirements for a schoor to be decrared as a minority andviolates the rights of the child under the RTE Act.

32 The impugned order arbitrariry reduces the reguration on student bodycomposition by two-thirds of the original regulation from TSoh to Zso/o).Furtheras mentioned above, the order does not provide justifiabre reasons forreducing the required percentage of minority students from 750/o to 25%. TheHon'ble supreme court has emphasized that arbitrariness in regulation thatleads to unequar treatment infringes the right to equarity underArticre 14. whire

@thus

law o

to

_ ___.. _ vt nt LtvtV !O

4in

"The basic principre which, therefore, informs both Artictes !! and 16 isequarity and inhibition against discrimination. No* ,rnat is the contentindreach of this great equarising principre?, !! is a rounaing faith, to use ,te wordsof pedantic or lexicographic approarch. we cannot counttruncate its att-embracing scope und ,runing, for r" o"::::Izrff[-'i:i,:ir';

:;;:::l:::::; ii!:;i:,::r:! o!,,y," concept with many aspects and!tr:::;;:;:t:,?i:*.':*i;i j:y"i"ii;":t:"!,'7*i;';::i,:::arbitrariness. ln fact "r,to the rure of raw in u ,"pibti, *iiu'rnu other, to the whim and caprice of an7:::,y,: monarch. Whei an aci'i a rv it is imntieir in it th^t t, :iti

ino t itiin Sfafeaction and ensure fiirness ,rl

"rr'riU*.;';;::r;:r?ilravP&EC ion lndia Ltd. (A

'lt thus appears, welt settled that Articte 14 strikes at arbitrariness inexecutive/administrative ,,itni- ai,"uuru anyzction that is arbitrary mustnecessariry involve the negation iiequatity. 6r"-;;;'; not confire the deriat ofequality to a compagtive evatiation between tiJ ,perrons

to arrive at aconctusion or disciiminatoryli"iii'iit ;;";;;;:r"iJ, !" arbitrary itsetr deniesequat or protection bv taw. ri,i ci,i'yyli;;r";;;;;;;riinentry obserued in-njayHasia's case and put tne nuii"i'i"ryond controveril when it said ,whereverthererore, there is arbitrarine;";; s;r; irtii'*iliizi ,, be or the tegistature orof the executive

?r^:1,17 ;Lriiiy,, under i;;.i;U, lji9re !!inmectiaterysprings into action.and strikes ooii "i"i-siriu'Z;d This view was furtheretaborated and afrirm"! ; ;;"ilriiurr-r1-lnion ;ii;;;", 0sss) .LLJ 104 sc .

tn-Maneka Gandhi ., i;;r; ;;'r#); 11sro1i ic'niiir it was obserued that:{l:fr,r1;';!:,:,!}, 3ioiiii,ii""'"i, srare',itii' iid,n,,re rairness and

33 THAT thc

with a sprinkting of outsiders admitted into it." ln TMA pai v.sfafe of Karnataka,(2002) 8 SCC 481 the Court clarified the position thus:

"lt is to be noted that the argumentaddressed and answered in that casewas whether a minority aided institution /oses its character as suctt rtyadmitting non' minority students in terms of Articre 2g(2). rt was obseruedthat the admission of 'sprinkring of outsiders, wi, not deprive theinstitution of its minority status.,,

Thus, the Hon'bre supreme court has made it crear that a ,,sprinkling,, of

outsiders will not result in the loss of minority character. This certainry meansthat the proportion of outsiders has to be just a ,,sprinkring,,

and in no case adominant proportion in a schoor. The rmpugned order arows for 75%outsidersand mandates onry 25%o fromthe minority commun i.ty.7S%outsider strength is,by no means, a "sprinkring" as contemprated by the Hon,bre supreme court.

Gi\-'impugned order dated 1g-6-2014 viorates the objectives of theprotection given to minority educational institutions under Article 2g and 30 ofthe constitution' The supreme court has crearry herd that the protectionafforded under Article 30 is only for those institutions that fulfill certainrequirements. Article 30 reads as under:

30' Right of minorities to estabrish and administer educationarinstitutions. -(? Att minorities, whetherbased in retigion olr ranguage, sha,

:;:i"r':" right to estabrish ,nd ,d*inister educ:ationar institutions or their

(1A) ln making any.raw providing for.tfe compursory acquisition of any propertyof an educationat institution "estabtished ano aiministered by a minority,referred to in clause (1), the statte shall ensur" iiut the amount fixed by ordetermined under such law for the acquisition of such properiyis such as wourdnot restrict or abrogate the right guaranteed under that crause.

(2) The s/afe sh,att n.lt, in granting aid to eclucational institutions, discriminateagainst any educationat -institution

on the ground that it is under themanagement of a minority, whether based on ,"igi; or hnguage.The rmpugned order contravenes the interpretation of the Hon,bre supremecourt that minority educational institutions protected under Article 2g and30 canonly ailow a "sprinkring of outsiders". rn rn re Kerata Education 8iil,1g57, ArR1958 SC g56, the Supreme court herd that ,,the

rear import of Articte 2g(2) andArticle 30(1) see/ns to us to be that they ctearty contemprate a minority institution

l

34.THAT, in sf. Xavier,scollege v sfafe of Guiarat (AtR 1974 sc 1389), the

Hon',blesupremecourtheldthattherightsconferredunderArticles2g(1)and

30(1)donotbarthestatefrommakinganyregulationsintheinterestof

furtheringacademicexcellenceinthecaseofminorityinsitutions:

,,.. 'The consistent view of this Coutt has been that there is no fundamental right

of a minorit. iiit'itution to affiliatiir. in" regulatory measures for affiliation are

for uniformity, efficiency and "/iit6ni, ii eduiational courses and do not

violate uny funiuiritui ,ignt of the minority institutions under Arl' 30'

,,'Therightconferredonthereligiousand.linguisticminoritiestoadministereducationat institutions of their "ii,i" is not an- absolute right. This right is nof

freefromregulation.Jusfasregulatorymeasuresarenecessaryformaintainingthe educationar character ana""iintent of minority institutions, similarly

regulatory measuresare necess;ii";;;turing orderty, efficient and sound ad-

ministration."

Therefore the lmpugned order by schools to claim minority status despite

having a majority of students from the non-minority category runs completely

contrarytothedecisionsinlnreKeralaEducationBillandTMAPai.

This position of the court has been reinforced in other judgments such as IMA

PaivSfafeofKarnataka(AiR20025C481)andPAlnamdarvStateof

Maharashtra (AtR 2005 sc 3226), wherein the court emphasizes that the

rights conferred under Articles 29 (1) and 30 (1) do not wholly exempt minority

educational institutions from the ambit of state regulation' However' the court

has held that the need to adjudicate upon such regulation arises when the

impugned regulation threatens to alter the minority character of the institution'

discriminates against minority educational institutions, or infringes the rights of

minorities to estabrish and administer an educationar institution of their choice

under Article 30 (1). The court explicitly states that minority educational

institutions must be treated equally, and that they will not fall outside the ambit

of state regulation where such regulation is justified and necessary' Thus'

minority schools can be made to comply with the other provisions of the RTE

Act for providing quality education'

35.The Hon',ble supreme court has reiterated in st' xavier'scollege v state of

Gujarat(AlR1g74SC73s9)thatregulationcannotbearbitrary:

.,'..AlthougharTicles,2gand30maysupplementeachothersofarascertain

I

h

nghis of mincr;ttes are concemed y'et. anic,e 29 ci the Constiiution does not. inany v/ay, impose a timit on the kind or character of education which a ntinoritymay chose to impart through its institution to the children of its own members orto others who may choose to send their children to its schoo/s... Even if article3O(1) of the Constitution is held to confer absolute and unfettered rights ofmanagement upon minority institutions, subject only to :absolutely minimal andnegative controls in the rnferesfs of health and law and order, it could not bemeant to exclude a greater degree of regulation and control when a ntinorityinstitution enters the wider sphere of general secular and non-denominationaleducation, largely employs teachers who are not members of the parlicularminority concerned and when it derives large parts of its income from fees paid

by those who are not members of the parlicular minority in questiort. Such

g-reater degree of control could be justified by the need to secure the interest ofihose who are affected by the management of the minority institution and the

education it imparts to fhose who are not members of the minority inmanagement."

The present government order requiring only 25% student strength to be from

minority communities is arbitrary and deserves to be set aside.

36. THAT the lmpugned Order fails to regulate the claim for minority status and

preserve minority character of a school as per the provisions of Articles 29 and

30 of the Constitution. The aim of Article 29 and 30 is to grant the minority

educational institutions separate protection so as to enable them to further their

identity, culture and language. ln TMA Pai, the Hon'ble Supreme Court held,

"Article 29(1) gives the right to all secfions of citizens, whether they are in

a minority or the majority religions, to conserve their language, script orculture... tn the exercise of this right to converse the language, script orculture, that section of the society can sef up educational institutions. The

right to establish and maintain institutions of its choice is a necessaryconcomitant to the right conferred by Article 30..."

This necessarily means that the institution must primarily cater to students

belonging to the minority community.ln TMA Pai,lhe right under Article 29 and

30 was explained as follows:

Denying admission to non-minorities for the purpose of accommodating ntinoritysfudenfs to a reasonable extent will not be only on grounds of religion etc., butis primarily meant to preserue the minority character of the institution and toeffectuate the guarantee under Afticle 30(1). The best possib/e way is ta holdthat as long as the minority educational institution permits admission of citizensbelonging to the non-minorify c/ass to a reasonable extent based upon merit, itwill not be an infraction of Article 29(2), even though the institution admitssfudenfs of the minority group of its own choice for whom the institution wasmeant. What would be a reasonable extent would depend upon variablefactors... Usually, at the school level, although it may be possib/e to fill up allfhe seats with students of the minority group, at the higher level, either incolleges or in technical institutions, it may not be possible to fill up all the seafswith the students of the minority group.

The impugned order does not mandate this requirement, because by only

requiring minority schools to have 25% of their student strength from the

minority communities, such schools are not fulfilling any aim of preserving their

religion, culture or language among their minorities. Hence the impugned Order

deserves to be set aside.

37.THAT according to the Supreme Court decisions in Society and Pramati, the

special right to minority schools under Articles 29 and 30 did not allow imposing

reservation as contemplated under Section 12 of the RTE Act. lt is submitted

that this special right under Article 30 is a cultural and religious right, intended

to protect the distinct culture and identity of the minority school. This is not a

business right. Therefore it is necessary that the school should possess a

distinct linguistic/religious minority character so that it can be the subject of

protection under Article 30. lt follows that any Government Order that

recognizes minority schools should safeguard only those schools that possess

this cultural right by virtue of having a minority character. By reducing the

mlnority student strength requirement to 25o/o, the impugned Order completely

removes the requirement of a school possessing the minority character so as to

be the subject of the cultural right under Article 30. Further, it is submitted that

neither the right to occupation under Article 19(1OXg), nor the right under Article

30 is a business right. Therefore, there is no reason why a minority school

should take in students predominantly from communities other than the minority

community.

38.THAT in Sociefy and Pramafi, the Supreme Court recognized that the minority

character of the minority schools may not allow reservations even to the extent

of 25% in favor of students from other communities. In Pramati, the Hon'ble

Court held:

"...admissions of socially and educationatly backward c/asses of citizens or forthe scheduled casfei and the scheduted rribes who may belong tocommunities other than the minority community which has esitabtished theinstitution, may affect the right of the minority educational institutions referred toin clause (1) of Article 30 of the Constitution. ln other words, the minoritycharacter of the minority educational institutions referred to in clause (1) otArlicle 30 of the Constitution, whether aided or unaided, may be affected byadmtssions of socially and educationally backward c/asses of citizens or the

\r/Scheduled Casfes and the Scheduted Tibes and it is for fhrs reaso n thatrninoity institutions, aided or unaided, are kept outside the enabling power offhe Sfafe under clause (5) of Articte 15 with a view to protect tie' minorityinstitutions from a law made by the majoity...

" ' this Court has repeatedty held that the Sfafe has no power to interfere withthe administration of minority institutions and can make only regutatorymeasures and has no power to force admission of students from imonjit nor-minoity communities, particutarly in minority schoo/s, so as to aiect theminoity character of the institutions...

... White discussrng the vatidity of clause (5) of Articte 1 S of tne Constitution, wehave held that members of communities'other than the minority communitywhich has established the school cannot be forced upon a minority institutionlecy2e that may destroy the minority character of the school... Therefore, the2009 Act insofar it is made appticable to minority schoo/s referred in clause (1)of Arlicle 30 of the constitution is ultra vires the bonstitution."

The above excerpts show that the rationale of the Hon'ble Supreme Court for

granting special status to the minority schools and exempting them from the

25% RTE requirement was so that the minority character would not be

destroyed by the admission of non-minority community students. Therefore

what is sought to be protected in these judgments is the predominance of

minority student strength that makes up the minority character of the school. lt

is for this reason that the judgments did not even allow a reservation to the

extent of 25% in favor of the other communities. However, under the Impugned

Order, students from the other communities may be admitted to the extent of

75o/o. Therefore the lmpugned Order fails to regulate minority schools as per

the decisions of the Hon'ble Supreme Court.

39' THAT the lmpugned Order fails to ensure that the school is established and

administered by minorities as per Article 30. The words ,,establish,, and

"administer" under Article 30 of the Constitution have to be read together.

Therefore, to claim minority status, a school should be both established and

administered by minorities. However, this cannot be a hollow requirement. The

school has to establish and prove that it intends to work for the benefit of the

minority community. However, the lmpugned Order does not ensure that the

school seeking minority status fulfills this criterio n. ln Azeez Basha v. tJnion oflndia, AIR 1968 SC 662 the Court found that the University was not established

by a Muslim minority, but by the CentralAct and held:

"An argument has been raised to the effect that even though the religiousminority may not have established the educational institution, it will have theight to admin;ister it, if by some process it been administering the same beforethe Constitution came into force. We are not prepared to accept this argument.Article (30(1)) in our opinion clearly shows that the minority will have the right toadminister educational institutions of their choice provided they haveestablished them, but not otherwise" The Article cannot be read, to mean thateven if the educational institution has been established by somebody else, anyreligious minority would have the right to administer it because, for some reasonor other, it might have been administeing it before the Constitution came intoforce. lf the educational institution has not been established by a minority itcannot claim the right to administer it under Art. 30(1) We have therefore toconsider whether the Aligarh University was established by the Muslim minority;and if it was so esfab/rshed the minority would ceftainly have the right toadminister it."

40.ln A. P. Christian Medical Educational Society v. Government of A. P.,

1986 (2) SCC 667 the society claimed to be Christian minority educational

institution and claimed protection under Article 30(1). The Government of A.P

refused permission to establish the College. When the matter came up to the

Supreme Court, the Court held as follows:

"lt was seriously contended before us that any minority, even a single individualbelonging to a minority, could found a minority institution and had the right so todo under the Constitution and neither the Government nor the lJniversity coulddeny the sociefy's right to establish a minority institution, at the very thresholdas it were, howsoever they may impose regulatory measures in the interests ofuniformity, efficiency and excellence of education. The fallacy of the argumentrn so far as the instanf case is concerned lies in thinking that neither theGovernment nor the University has the right to go behind the claim that theinstitution is a minority institution and to investigate and satisfy itself whether theclaim is welL founded or ill-founded. The Government, the lJniversity andultimately the court have the undoubted right to pierce the 'minority veil' - withdue apologies fo the Corporate Lawyers - and discover whether there is turkingbehind it no minority at all and in any case, no minority institution. The object ofArt. 30(1) is not to allow bogies to be raised by pretenders but to give theminorities 'a sense of security and a feeling of confidence' not merely byguaranteeing the right to profess, practise and propagate retigion to religiousminorities and the right to conserve their language, script and culture tolinguistic minorities, but also to enable all minorities, religious or linguistic, toestablish and administer educationat institutions of their choice. Theseinstitutions must be educational institutions of the minorities in truth ancl realityand not mere masked phantoms. What is imporiant and what is imperative isthat there must exist some real positive index to enable the institution to beidentified as an educational institution of the minorities. We have already saidthat in the presenf case apart from the hatf a dozen words 'as a Chtristianminorities institution' occurring in one of the objects recited in the memorandumof association, there is nothing whatever, in the memorandum orthe articles ofassociation or in the actions of the society to indicate that the institution wasintended to be a minority educationat institutior-r. As already found by us thesehalf a dozen words were introduced merely to found a claim on Art. 3O(1). Theywere a smoke-screen."

4'1. Similarly in Sf. John's Teacher Training lnstitute for Women, Madurai v.

sfafe of ramil Nadu, AIR 1gg4 sc 43, the supreme court observed:

pI.

../fisamatterofcommonknowledgethatmanylnstifutlonsclaimingfhemse/yes

to be minority inilititions within tnb-ieZning or e,1i9t"-30(1) of the constitution

invoke tne lurisaiiiin- iitn" High Co)ui ini"' Articte 226 or of this Court under

Articte 32 for a writ of maniamr;l; -i"io,gnit"

the institufions as minority

institutions onty whten the dates for examinatjons are notified and' as a patl of

strategy, seek direc;tions to allow, ieanwhile, the studenfs fo appear at the

examinatio ns. Many of such institu'tiis ari not only "masked phantoms" but

are established as businer" ,"iiiiui io, admitting sub-s.tandard s-tudents

without any competitive fesfs, o,.out,s of consideralions which cannot serue

even the interest of the minority. ri" t"uinetrs of such institutions cannot derive

any benefir on oalrs if interim'orairr-inin urtimatery the main writ appricatiorrs

have beendismissed. As such ,o iiiili. ir iigut rig"it can be pteaded on behalf

of thesrudenrs iJitt"i for traininj;;; t;ri"*iroiitv institutions for pubtication

of theirresu/fs or award of ceftificates'"

42.TheaboveCasesshowthataneducationalinstitutionthatseeksaminority

statusmustshowthatitisbothestablishedandadministeredpredominantlyby

minorities and for the benefit of the minority that it represents' The Government

order dated 24-7-2l12was justified in imposing conditions of representation in

both the Management (2/3'd) and the student (75%) strength to ensure thatthe

school strives to work towards the interest of the children who belong to the

minority community' However, the impugned Government order dated 18.6-

2014 diluted the condition of minority student strenght, thus defeating the

purpose of Article 30 of the Constitution'

43.THAT the lmpugned order fails to conserve the language' identity' culture and

retigion that are the subjects of protection under Article 29 and 30 of the

Constitution.Thelmpugnedorderallowsforstudentstrengthtobedominated

bynon-minoritystudents.HoWeVer,theimposingofpre-conditionsonthe

student strength has long been acknowledged and even adopted by the

SupremeCourlinensuringthattheeducationalinstitution,infact,wouldwork

towards servicing minorities and protecting their interest' ln TMA Pai

Foundation v, State of Karnataka, (2002) 8 SCC 481 the Hon,ble Supreme

Courtaddedanoteofcautiononlinguisticminorityeducationalinstitutionand

their student strength:

,,WewotJld,hawever,tiketoclarifyoneiyn,grtantaspectatthisstage.Theaided tinguistic minority "ariitiii,"t

institution is given the right to admit

sfudenfs belonging to the tiniiiitii *tinority to a iasonable extent only to

enst)re that its minority chaiacter is preserued and that the obiective of

establishing the institution rs nof defeated' tf so' such an institution is under an

obtigation to admit the butk ii i" sfudenfs fitting into the description of the

I!

-minority community. Therefore. the students of that group residing in the statein which the institution is located have to be neceJs arity admitt"ea in a largemeasure because they constitute the linguistic minority group as far as thatsfafe is concerned. ln other words, the-predominance of tinguistic studentshailing from the state in which the mtinority educatioial institutionis esfab/rshedshould be present. .The management bodies of such institution cannot resoft tothe device of admitting the inguistic sfudenfs of the adjoining state in whichthey are in a maiority, under the facade of the protection giien under Article30(1)' lf not, the very obiective of conferring the'ptreirential right of admissionby harmoniously constructing Articles 30(i) ,ra io1z1, which we have doneabove, may be distorted.,, - - \-/ ' 't v ' 'v v v

Therefore, the Supreme Court in TMA Pai clearly recognized that there is aneed to regulate the student strength in minority institutions in order to protect the

minority character of the institution and to prevent abuse of the freeclom under

Article 30. ln P.A, rnamdar, the Hon'bre court crarified:

"the obiect undertyin.g.Artictg 30(1) is fo see the desire of minorities beingfulfilled that their chitdren shoutd 'be

brought up piiperty and eniciiitty anaacquire eligibility for higher university eduiatioi ind'go out in the world fullyequipped with such intellectual attainments as wilt ,Z*u them fit for eiteringpublic serurces, educationat institutions imparting nignter instructions inctuclinggeneral secular education. Thus the twin' obieits iought to be achieved byArticle 30(1) in the interest of minorities are. (i1 to "niole

such to conserue itsre.ligign a.nd language, an9 (ii) to give a thorough good g"n"ral education to thechildren belonging to such minor'riy. so long uJ tn"" iiitiution retains its minoritycharacter by achieving and contiiuing to ichieve the aforesaid two it luitiurr,the institution would remain a minority institution.,,

44.1n Dayanand Anglo vedic college Trust v. sfafe of Maharashtra, zo13 (4)

SCC 14, the question turned to whether the same caution could be applied

against the establishment. The Court held:

"lt necessarily follows from the law taid down in Pai Foundation that to estabtisha minority institution the institution must primarity cater to the ,"qui"iunts ofth.at minority of that sfafe e/se ifs characier or *iroiity institutionis /osf . .. Aftergiving our anxious consideration in the matter iia-in'tne tight of the law set,edby this court, we have no hesitation in iotaing that in order to claimminority/linguistic sfalus for an institut'ron in anry sfrL, the authorities must besatisfied firstly that the institution has been estiatisiio by thepersons who areminority in such sfafe; and, secondly, the rigit ;r-aaministration of the saidminority linguistic institution is a/so ves.ipl in ti-,oru p"."orc who are minority insuch Sfafe. The right conferred by Articte 30 of'tie Constitution cannot beinterpreted as if irrespective of the persons who established the institution in thesfafe for the benefit of persons who are m.ingrity, any person, be it non_mirorityin other place, can administer and run such institution.,,

The precedents set by the Hon'ble supreme court clearly shows that the State

is expected to, impose such conditions on the Management and number ofstudents, in order to ensure that the minority character of the institution is

I

retained. Therefore the State Government has to ensure that the schools cater

predominantly to students from the minority group. The condition that 75% of

the student strength must be from the concerned minority is very well justified

and reducing this to 25% as under the impugned Notification dated 18-06-2014

is violative of the precedent set by the Supreme Court in its interpretation of

Article 30 of the Constitution. Thus the Impugned Order fails to protect"the

minority community, its religion, language, identity and culture in schools as

contemplated under Article 30.

45.THAT the low population of certain minority communities is not an excuse for

the schools to be exempted from the minority student strength requirement.

Several schools claim that they will not be able to obtain students from the

minority community in sufficient numbers so as to fulfill the criteria. However, it

is submitted that the requirement under all the Government Orders is only

based on the total student strength that the school itself decides. Therefore the

total student strenght can always be altered to make sure that 75% of the total

students are from the minority community. Further, the very purpose of giving

protection to a school under Article 30 is because it is catering to the minority

population. lf this is absent, there is no reason or justification in terming the

school as a minority educational institution. Further in TMA Pai, the Hon'ble

Supreme Court clearly noted that it is possible in the school level to ensure

100o/o admission of students from the minority community. Therefore, the

impugned Order dated 18-6-2014 in practically removing the minority student

strength requirement has rendered Article 30 ineffective. Therefore the

impugned Order dated 18-6-2014 deserves to be set aside.

46.THAT the judgments in Society and Pramafi have to be read to exempt minority

schools only from the obligations under Section 12 and 18 of the RTE Act and

not the entire Act. The purpose of introducing Article 21A and the RTE Act is to

regulate the service of education and to ensure that all children have access to

good quality primary education. In Society and Pramafi, the reasoning in

er(ernpting minority schools only dealt with the obligation of schools under

Section 12 and section 1g. This is clear from the holding in Pramati lhal'.

\ve have hetd that members of communities other than the minority

community which has esfab tished the school cannot be forced upon a

minoity institution because that may destroy the..minority character of the

school. ln ou*i"*, if the 200g Act'is made- applicable to minority schoo/s,

aided or unaided, the right of the minorities under Article 30(1) of the

Constitution wiiie anro{abd. Therefore, the 2009 Act insofar it is made

applicabte to minority sJhoo/s referred in clause (1) of Article 30 of the

Constitution is ultra vires the Constitution'

Thus, it is clear that the supreme court was only considering section 12 and

Section 18 obligations when it exempted minority schools from the RTE Act'

Nowehere does the court discuss if and how compliance with norms and

standards for quality education, compliance with the prohibition on holding

back, corporal punishment and other measures of quality education will affect

the rights of the minority schools. Therefore the decision in Pramafi and society

only excludes the minority schools so far as section 12 and section 18

obligations are concerned, The Hon',ble supreme court in Environment and

consumer Protection Foundation v. Delhi Administration and ofhers, wP

(c) 631/2004 also recognised that a// school inlcuding minority schools must

comply with RTE infrastructure provisions. Thus minority schools will still be

obligated to follow other provisions of the RTE Act on quality standard of

education that has no relevance with the minority character but is a necessary

concomitant of the fundamental right of the child under Article 21A.

47.THAT, the Order dated 18-6-2014 violates the right of children to equal access

to educationat facilities in schools by misinterpreting the law declared by the

Hon',ble court in Pramatiand sociefy. However, the concluding paragraph in

Pramati, which declares that minority schools are exempt under the RTE Act'

must be read in light of its preceding discussion. The intention of the Hon',ble

Court was to exempt minority institutions from Section 12 (1) (c)' this is evident

inthefollowingparagraphwhereinthejudgmentclarifiesthatregulationof

minority institutions is valid, but such regulation cannot result in altering the

minoritY character of the school:

@""'this court has repeatedry herd that thesra/e has nothe administratiol _of ^inLriiy"inriirurrni.-;;;-;ri;" fr:yrr, n:,;,rfi:rf:l

iiii' f " r:f:,Xl, l:' "r:l "i :i ; ; a a m i s s i o i z r tri u d u n t

" r ro m a m o n i s t n o n -minoriiyrhrru"t"iornr{nititr,'io'i"",.l.r,,r,nor,r, schoors, so as to riiit tn"

The impugned order viorates equar protection of chirdren under the RTE Act bynegating the rights of chirdren enrored in minority schoors. rn addition toguaranteeing free and compursory education, the RTE Act protects a, chirdrenfrom varied forms of harassment and discrimination. The impuqned ord18_6-ZOtq

m

L eniconcerned. Such exemption from regulation makes students in minority

:T,":'^:.:,:,:," to demand basic schooring facirities such as drinkinswater, separate toirets, adequate number of teachers, sufficient teaching ;;involvement of the parent community and other facirities that seek to provide

meaningfur education in a schoor. rt has been crarified by the Hon,bre supremecourt in pramatithat the court does not intend to curtair governments fromregurating minority schoors. The impugned order instead of reading thejudgment in right of a, its erements, has created a poricy that arows fordifferentiar treatment of chirdren in minority schoors in the reguratory rearm.

48' THAT' the impugned order dated 18-06-2014 has resurted in a situationwherein a rarge number of schoors are craiming minority status and minorityschoors are immune from any form of reguration by the state. De_reguration ofminority schools has resulted in unjustified and unequal treatment of chirdrenenrolled in these schools' This raises grave concerns in light of the obrigation ofthe state government under Articre 14 to treat chirdren equary. The impugnedorder has resulted in denying equar treatment of chirdren enrored in minorityschoors vis-d-vis chirdren enrored in non-minority schoors. Additionary, theimpugned order arso denies equar protection afforded under the RTE Act tochildren in minority schools' lt is submitted that any reguration cannot infringethe right to equality guaranteed uncler artirta 4,t

c)

49'The Petitioner submits that the impugned order dated 1g-06-2014 disregards

the obligations under the RTE Act and Article 30 of the constitution and if the

schools are granted minority status on the basis of the impugned order, it will

be violative of the rights of the child under Article 21A andthe RTE Act.and also

the protection to minority community and their genuine interests under Article

30 of the constitution' lncreasing number of schools are seeking a minority

status without having any interest in furthering the ranguage or culture of the

concerned minority community. lt is necessary to pierce the minority veil and

and recognise that these schools merely seek to escape their obligations under

the RTE Act, 2009. lf the lmpugned order dated 1g-6-2014 continues tooperate, these schools will get a free passage to exempt themselves from the

RTE Act as minorities wihout owing a single obligation towards students who

belong to the minority community. Therefore it is imperative that the orderdated 18-O-2014 be stayed.

50' lt is submitted that if the order dated 1B-o-2014 is allowed to continue tooperate, the rights of the child under Article 21 and also the protection afforded

to minorities under Article 30 will be greatly affected. lf certifications are made

and these schoors are reft out of the RTE Act, many chirdren wil be reft

unprotected under the Act and these schools will be unregulated by norms ofquality education' Further, changes made to the student strength will be difficult

to undo if the impugned order is allowed to continue. lf admissions for the year

2014-15 are done by taking benefit of the relaxation of 2s% in the impugned

Government order, it will result in the loss of minority character of such schools

and violation of the rights of the child. Therefore it is imperative that theimpugned order dated 1g-6-2014 shourd be stayed tiil the pendency ofproceedings under this petition. ln the light of these facts, it is prayed that theinterim relief sought for be granted and the impugned order daed 1g_6-2014 be

stayed until the pendency of the proceedings.

PRAYER

WHEREFoRE' in light of the above facts and circumstances, the petitioner mostrespectfu'y prays that this Hon'bre court be preased to:

A' pass an order directing the Respondents to set aside Government order No. ED27 tvtA$trt 2012 (parr 1) Bansarore, dated 18_6_2014,;;.; herein asANNEXURE - A and revert and retain the conditions under Government orderNo' rD 27 rvrAHrrr 2olz(part 1) Bangarore dated 24-7-2012.B' Declare that the imposition of a minimum minority student strength of not ressthat 75% is constitutional and

constitution. --"srtrutrr(Jltat and fulfills the objective under Articre 30 of the

c' Pass an order directing that even minority schoors (aided and unaided) wourd berequired to comply with all the provisions of the RTE Act apart from Secti on 12(1) (b ), 12 (1)(c) and Section 18;D' Grant any other rerief, which this Hon,ble court deems fit under thecircumstances of the case in the interests of justice and equity.

INTERIIVI PRAYER

Pending final disposal of the above writ petition, it is most respectfuily prayed that thisHon'ble court may be pleased to stay the operation of the impugned order No. ED 27MAHlTl2O12Part1)Bangalore,dated18.6-2o14producedhereinaS@

;r:"::T;"' "t the petition and pass anv such rurther orders in the interest or

Place: Bangalore

Date:

Counsel for the petitioner

JAYNA KOTHARIffinngalore_S6002S.