Context: The article highlights the issues with the exemption of aided and non-aided minority institutions from the Right to Education Act.
Issue

• Right to Free and Compulsory Education Act or RTE Act is a horizontally enforceable Fundamental Right. That is, the Right is enforceable against the State and Individuals.
• But the Right To Education Act have some arbitrary discrimination against private institutions and favours minority educational institutions.

Is RTE enforceable against individuals?

• Most fundamental rights are enforceable against the state, not against private individuals.
• Certain rights, however, are horizontally enforceable too, that is, they can be enforced against individuals.
• The Right to Free and Compulsory Education Act or RTE falls in the latter category.
• The right to education was initially mentioned in Article 45 as a part of the Directive Principles.
• Evolution of Right To Education as a Fundamental Right:
• Earlier, Article 45 mentions the right to education as a part of the Directive Principles. It mentions that the state should provide free and compulsory education to children up to the age of 14. The provision also mentions a timeline for this achievement(within a decade).

Mohini Jain v. State of Karnataka case 1992: In this case, the Supreme Court held that the Right to education is a part of the right to life recognised in Article 21.

• Unnikrishnan JP v. State of Andhra Pradesh case 1993: In this case, the Supreme Court held that the state was duty-bound to provide education to children up to the age of 14. Further, the SC also mentions that the state alone cannot fulfil the task. Private educational institutions, including minority institutions, have to assist the State in that.
• 86th constitutional amendment of 2002:The government provided a status of a fundamental right to the right to education. The government inserted Article 21A into the constitution.

Evolution of Right To Education Act

• P A Inamdar vs State of Maharastra 2005 case: In this case, the court held that there shall be no reservation in private institutions, minority and non-minority institutions.
• 93rd constitutional amendment of 2005: This amendment included Clause(5) to Article 15. Under this, the State can provide for admission in institutions, including private institutions for the advancement of “backward” classes. This purposefully omitted both the aided and unaided minority educational institutions.
• In 2009, the government enacted the Right to Free and Compulsory Education Act or RTE Act. The Act provides for 25 per cent reservation in private institutions.
• Society for Unaided Private Schools of Rajasthan v. Union of India case. Private schools challenged the 25% percent reservation in the RTE Act. The court, on the other hand, upheld the validity of the legislation. But the court exempted the unaided minority institutions from providing reservation.

The arbitrariness in Right To Education Act

• The amendment to the Right to Education Act 2012: The amendment mentions that the RTE Act will subject to Articles 29 and 30. In other words, It protected the administrative rights of both unaided and aided minority educational institutions.
• But in the Pramati Educational Trust vs Union of India case 2014, the court held that the RTE Act is applicable to both non-minority aided and unaided Private schools.

This created an arbitrariness in the Act. This has the following problems in the RTE Act,

• Onus on private unaided schools is higher than the government schools
• Minority institutions both aided and unaided were exempt.
• According to Article 21, there is no discrimination between minority and non-minority institutions. But, the RTE Act has.
• There is no explicable or rational explanation for leaving minority institutions, especially the unaided ones.

Suggestions to improve the Right to Education Act

• In the Sobha George v. State of Kerala case, 2016 the court held that the no-detention policy will apply to minority schools also. Further, the court also held that the minority institutions will not subject to the RTE Act. But they are subject to the fundamental rights of the Constitution. The Court demands two fundamental questions on Section 16(no-detention policy).
• Whether the provisions such as Section 16 of RTE are statutory right or Fundamental Right?
•  If it is the Fundamental Right, then the minority institutions will not claim the exemption under the Pramati Educational Trust case. 
• So, the government has to relook the Right to Education Act to fulfil the view of the Sobha George v. State of Kerala case. Until then the Supreme court may overrule its judgement on the Pramati Educational Trust case.