Right of the Children of minority groups as to ‘Universal Elementary Education’ as guaranteed by Article 21A of the Constitution
-- Deepak Vuttsya, Advocate, Delhi High Court --


Minority children, especially those belonging to the Muslim group going to the Madrasas, were denied fundamental right as to ‘Universal Elementary Education

Constitutional and Legal Provisions:

Article 21A of the Constitution reads as under:

“Right to Education:  The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.”

Emphasis supplied

Other provisions introduced by the Constitution (86th Amendment Act), 2002, apart from Article 21A, are:

Article 51-A(k) reads as under:

            “Fundamental Duties:  It shall be the duty of every citizen of India:--

(k) who is a parent or guardian to provide opportunities for education to his child or, as the case may by, ward between the age of six and fourteen years.

Substituted Article 45 reads as under:

Provision for early childhood care and education to children below the age of six years: The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.”

Before amendment the provisions of Article 45 read as under:

Provision for free and compulsory education for children:-  The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.”


Before the 86th Constitution Amendment, the aspect of free and compulsory elementary education of children below 14 years of age was part of Part IV of the Constitution, i.e. it was one of the Directive Principles of the State Policy, which signified that it was not judicially enforceable as per Article 37 of the Constitution.

But after the 86th Constitution Amendment Act was passed the aspect of free and compulsory elementary education was granted the status of fundamental right and a new provision was introduced which is Article 21-A which found place in Part III of the Constitution i.e. the part dealing with the Fundamental Rights. All this signifies that now the Fundamental Right to Free and Compulsory Education is judicially enforceable i.e. justiciable; but justiciability here has to be understood in proper perspectivetaking cue from the nature of the fundamental right under Article 21-A.

The constitutional mandate is on the State i.e. the State is constitutionally mandated to provide free and compulsory education to all children of the age of six to fourteen years, but the State is granted liberty by the Constitution as to the manner of so providing. Therefore, it is the domain of the State i.e. the Executive and the Legislature to decide the manner, in which it has to honour the constitutional mandate of Article 21-A. The State is the Government of India and Parliament of India and the Government and Legislature of each of the States as defined by Article 12 of the Constitution in Part III.

As a consequence of the liberty so granted by the Constitution upon the State, in Article 21-A, the State i.e. the Parliament of India had come up with the Act viz., ‘The Right of Children to Free and Compulsory Education Act, 2009’

The RTE Act provides, inter alia, that the Appropriate Govt. shall establish Govt. Schools in the neighbourhood of the habitation(?????, ???????, ?????, ?????, ???????) of the area on the basis of criteria of neighbourhood i.e. the identification of local inhabitants and assessing the need for a Govt. School if there is no Govt. School or assessing the need of an additional Govt. School if population of the habitation is such that one Govt. School is not enough.

Now the aspect of justiciability i.e. legal enforceability of Fundamental Right under Article 21-A of the Constitution, has to be considered. It could be considered from two levels, Macro Level and Micro Level.

Macro Level means the legal enforceability of Fundamental Right under Article 21-A from the State perspective; and Micro Level means the legal enforceability from the child perspective.

Macro Level: If suppose there is a large habitation and there is no Govt. School and the children living there could not go to school due to the fact that there is no school around, than can the Court direct State to establish school and fulfill its constitutional mandate under Article 21-A read with the RTE Act, which mandates the States to establish schools in the neighbourhood area within the period of three years from the commencement of RTE Act? The answer would be yes, as the Hon’ble Supreme Court had in fact passed directions in its order dated 16.12.2013 in the case viz. ‘In Re. Exploitation of Children in Orphanage of Tamil Nadu, WP(Crl) 102/2007’, whereby the Hon’ble Supreme Court sought compliances under RTE Act from all the States and UTs in the country.

The Courts i.e. the Hon’ble High Courts and the Hon’ble Supreme Court, exercising their constitutional jurisdictions under Articles 226 and 32 respectively, can take up non-fulfillment of constitutional mandate upon the States under Article 21-A. But it remains the domain of the State to decide upon the manner of complying with the directions of the Hon’ble Courts as the same is the prerogative of the State.

Micro Level: If suppose there is a child who belongs to a very poor family and is below 14 years of age but above 6 years and he/she wants to study and the neighbourhood school denies him/her the admission, can he/she take recourse to the Courts? Absolutely yes, in every sense of it. 

In fact the child need not approach the Courts and can very much make a representation before the Local Authority, and the Local Authority has to take action ensuring admission of the child but in case the Local Authority does not do so than the child can appeal to the SCPCR or Authority when there is no SCPCR. Therefore from the child perspective, fundamental right to free and compulsory education for the desiring child can very much be legally enforced by the Courts; in other words no desiring child in the country, on any grounds whatsoever, can be denied his/her fundamental right to get ‘Free and Compulsory Elementary Education’.

But what if a child is not desirous or has no inclination towards pursuing the education or the parents does not want the child to get the Universal Education instead want the child to get religious education only, for instance the Muslim parents desiring their child to get into a Madrasah for imbibing Islam and nothing else? Can the fundamental right of education of said undesirous child or children of undesirous parents be legally or judicially enforced? The answer has to be no.

Fundamental Right under Article 21-A is justiciable i.e. legally enforceable but the corresponding fundamental duty under Article 51-A(k) is not justiciable. (A.I.I.M.S. Students’ Union vs. A.I.I.M.S., Appeal Civil 7366 of 1996)

Similarly the obligations of the parents under the provisions of section 10 of RTE Act are not legally enforceable. But all this does not mean that no steps could be taken on this aspect of the matter.

The issue of bringing into the mainstream of minority group children esp. the Muslim pertains to the Policy Domain of the State i.e. the Executive and the concerned Union Ministries i.e. the MHRD, Ministry of Minority Affairs, Ministry of Social Justice & Empowerment, MWCD apart from some others. Education being the subject matter of Concurrent List in the Seventh Schedule of the Constitution, both the State and the Union Legislatures have the legislative competence over the matter.

Some of the Executive Steps by the Union towards educational advancement of minorities(MHRD):

A.     ‘Central Sponsored Scheme for Providing Quality Education in Madrasa’ (SPQEM)

B.     ‘Sarva Shiksha Abhiyan’ (SSA)

C.     ‘Mid-Day-Meal’ (MDM) Scheme

D.    ‘Kasturba Gandhi Balika Vidyalayas’ (KGBV)

E.     ‘Saakshar Bharat’ Programme

F.     ‘Jan ShikshanSansthans’ (JSSs)

G.     The ‘Centrally Sponsored Scheme of Teacher Education’ for the 12th Plan inter alia envisages strengthening of existing ‘Teacher Education Institutions (TEIs) and opening of new ones.

H.    Scheme of financial assistance for ‘Infrastructure Development for Private Aided/Unaided Minority Institutes’ (IDMI)

I.       Scheme of the ‘Rashtriya Madhyamik Shiksha Abhiyan’ (RMSA)

J.       ‘National Monitoring Committee on Minorities’ Education’ (NMCME)

K.    Setting up of 2328 ‘Equal Opportunity Cells’ by the UGC

L.     ‘Academies for Professional Development of Urdu Medium Teachers’ were started during the 11th Five Year Plan.

M.   ‘National Commission for Minority Educational Institutions (NCMEI)

N.    ‘National Council for Promotion of Urdu  Language’ (NCPUL)

As per the report of the MHRD itself, due to the interventions of the MHRD under the various schemes, there has been consistent increase in enrolment of Muslim Children at elementary level. The enrollment of Muslim children as percentage of total enrolment (2006-07 to 2012-13) is as follows:

            9.4% to 14.2%,         1.23 cr. to 1.91 cr.       at primary level.

            7.2% to 12.1%,         0.35 cr. to 0.79 cr.       at upper primary level

Some of the Legislative steps by the Union towards educational advancement of minorities:

A.     The Parliament had come up with the ‘The Central Madarsa Board Bill, 2009’ in order to provide for the co-ordination and standardization of the non-theological education in certain Madarsas and, for that purpose, to establish the Central Madarsa Board; but the said Bill could not see the light of the day till date and in all probability could have withdrawn.

Legislative and Executive Step taken by the State of West Bengal towards educational advancement of minorities’ esp. the Muslim:            

A.     ‘The West Bengal Board of Madrasah Education Act, 1994’ was passed by the Legislature of West Bengal. The oldest Board of Madrasah Education in our country is the ‘West Bengal Madrasah Education Board’ established in 1922, by an another name. This Board was given a statutory status by the 1994 Act. Now the Board is allowed to function with the same academic, administrative and financial powers, facilities, status and privileges as enjoyed by the other Education Boards, Councils and similar Bodies in the State Government. The responsibilities of the Board is not only to direct, supervise and control all types of Madrasahs but also to make these institutions as centre of excellence, more students friendly, community friendly and more comfortable specially for minority families so that they can be a natural member of the knowledge society of the 21st century.

B.     Unique aspects of Madrasahs of West Bengal:

(i)               Secular in character: The Madrasahs of West Bengal are open to all. Children from different background irrespective of gender are enrolled to these Madrasahs; and same is for the teachers, non-teaching staff and members of the Managing Committee. At present 17% students and 11% teaching and non-teaching staff of High Madrasahs and significant numbers of the member of the Managing Committee are non-Muslims. In few Madrasahs muslim students are minority. Another remarkable fact is that a good number of students in a Senior Madrasah namely Panditpur Islamia Senior Madrasah in the district of Murshidabad are non-Muslim. It disproves the anticipation that Madrasah imparts theology based education to a particular religion.

(ii)            Equal Access: The Madrasah Education up to class XII in all the recognised aided institution is free; no tuition fee is charged. Also gender equity is maintained in a more effective manner. From the statistics it is evident that more than 60% of the enrolled students in the Madrasahs are girls.

(iii)          Equivalence and convergence: The certificate of High Madrasah Examination (class 10th Standard) is equivalent to Madhyamik Pariksha of West Bengal Board of Secondary Education and is recognized at the national level. Students passing out from here are not only eligible for admission to all Higher Secondary level schools throughout the country but also may go for any stream they like. In many other ways also the Madrasahs are well converged with the main stream education system of the State and students are free to move between two systems according to their choice.

(iv)           Co-educational status: 564 out of 609 recognized Madrasahs (including Senior Madrasahs) are co-educational.

(v)             Balanced Curriculum: The West Bengal School Curriculum and Syllabus Comparability Committee 2002 has thoroughly revised the curriculum from Primary to Higher Secondary and submitted report to the State Government. The Board in consultation with academicians, subject experts and other stake-holders and in the light of the recommendation of the above mentioned committee, other Educational Commission and Committees along with NCF-2005 keeping in touch with the syllabus of other national Boards/Councils has framed a balanced curriculum which is not only a unique blend of moral teaching(Islamic) learning with modern science and technology based education but also a balanced blend of co scholastic areas with scholastic one. Special emphasis has been given on peer learning and remedial lesson with the aim to successful implementation of the Continuous and Comprehensive Evaluation at Madrasah level.


Keeping the Minority Educational Institutions out of the purview of RTE Act is regressive

The Religion Census 2001 shows the following distribution:

·      At the census 2001, out of 1028 million population, little over 827 million (80.5%) have returned themselves as followers of Hindu religion, 138 million (13.4%) as Muslims or the followers of Islam, 24 million (2.3%) as Christians, 19 million (1.9%) as Sikh, 8 million (0.80%) as Buddhists and 4 million (0.4%) are Jain. In addition, over 6 million have reported professing other religions and faiths including tribal religions, different from six main religions.

·      Hinduism is professed by the majority of population in India. The Hindus are most numerous in 27 states/UTs except in Manipur, Arunachal Pradesh, Mizoram, Lakshadweep, Nagaland, Meghalaya, Jammu & Kashmir and Punjab.

·      The Muslims professing Islam are in majority in Lakshadweep and Jammu & Kashmir. The percentage of Muslims is sizeable in Assam (30.9%), West Bengal (25.2%), Kerala (24.7%), Uttar Pradesh (18.5%) and Bihar (16.5%).

·      Christianity has emerged as the major religion in three North-eastern states, namely, Nagaland, Mizoram, and Meghalaya. Among other states/Uts, Manipur (34.0%), Goa (26.7%), Andaman & Nicobar Islands (21.7%), Kerala (19.0%), and Arunachal Pradesh (18.7%) have considerable percentage of Christian population to the total population of the State/UT.

·      Punjab is the stronghold of Sikhism. The Sikh population of Punjab accounts for more than 75 % of the total Sikh population in the country. Chandigarh (16.1%), Haryana (5.5%), Delhi (4.0%), Uttaranchal (2.5%) and Jammu & Kashmir (2.0%) are other important States/Uts having Sikh population. These six states/UTs together account for nearly 90 percent Sikh population in the country.

·      The largest concentration of Buddhism is in Maharashtra (58.3%), where (73.4%) of the total Buddhists in India reside. Karnataka (3.9 lakh), Uttar Pradesh (3.0 lakh), west Bengal (2.4 lakh) and Madhya Pradesh (2.0 lakh) are other states having large Buddhist population. Sikkim (28.1%), Arunachal Pradesh (13.0%) and Mizoram (7.9 %) have emerged as top three states in terms of having maximum percentage of Buddhist population.

·       Maharashtra, Rajsthan, Madhya Pradesh, Gujrat, Karnataka, Uttar Pradesh and Delhi have reported major Jain population. These states/UTs together account for nearly 90 percent of the total Jain population in the country. The percentage of Jain population to the total population is maximum in Maharastra (1.3%), Rajsthan (1.2%), Delhi (1.1%) and Gujarat (1.0%). Elsewhere in the country their proportion in negligible.

Some observations:

·      At national level 80.5% are Hindus and five other main religions account for a meagre 18.8%.

·      At State level, Muslims are below 31% in all the respective States except the State of Jammu & Kashmir and Lakshwadeep, where they are in majority.

·      At State level, the Christians are below 35% in all the respective States meaning thereby that Christians are nowhere in majority in any of the States or UTs.

·      At State level, the Sikhs are in majority only in the State of Punjab and in rest of the respective States/UTs percentage of Sikhs are below 6% except Chandigarh where percentage of Sikhs is 16.1%.

Therefore, above data and figures justifies the constitutional protection given to the minorities in the country.

16 Jul 2022


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