MINORITY EDUCATIONAL INSTITUTIONS UNDER ARTICLE 30: RECONCILING CONSTITUTIONAL AUTONOMY, EQUALITY, AND THE RIGHT TO EDUCATION UNDER PART III

Abstract

Three distinct constitutional values meet within the walls of a minority educational institution in India: the autonomy of a religious or linguistic community to shape the education of its members, the guarantee of equal treatment owed by the State to every person, and the fundamental right of every child to free and compulsory elementary education. Much of the existing literature treats the problem as a bilateral contest between minority rights and State regulation. This paper argues that the contest is in truth trilateral, and that the child, as the holder of the right under Article 21A, has been the least visible party in the constitutional conversation. The paper first identifies the normative foundations of minority educational autonomy in theories of cultural pluralism and Indian secularism. It then dissects the right to administer into its constituent elements and maps the doctrinal tools through which courts have reconciled autonomy with equality, including the excellence standard, the national interest standard and the doctrine of general laws. It proceeds to evaluate the treatment of minority schools under the Right of Children to Free and Compulsory Education Act, 2009, and draws comparative lessons from the United States, Canada, South Africa and European minority rights instruments. The paper concludes that reconciliation is possible if the right to administer is understood as a right to preserve identity rather than a right to be free of child-centred obligations, and it proposes an identity-core model for calibrating regulation.