In a twist that left even the petitioners surprised, the Supreme Court last fortnight ruled that the 2009 Right of Children to Free and Compulsory Education Act would not apply to minority schools aided by government funds. While the petitioners were simply asking to be exempted from reserving seats at their schools for underprivileged children, the court went one step further and said that the RTE as a whole would not apply to them.

This means that even otherwise well-meaning provisions in the act that are intended to safeguard the rights of children – restricting corporal punishment, disallowing interviews of parents during admission, preventing capitation fees – will not apply to any minority school.

Unaided schools had already been scrambling to get minority certificates after a 2012 SC judgment exempted them from the RTE. Most recently, seventeen unaided schools in Bangalore asked the Karnataka High Court in April to recognise their minority certificates, which they received only in January, a month after the RTE admission process for the 2014 academic year was completed.

The Karnataka cabinet had ruled in 2012 that for a school to be considered a minority, 75% of its students had to belong to that linguistic or religious minority. The high court has temporarily put this definition on hold and asked the state and union governments to compile definitions within a month.

HR Umesh Aradhya, chairperson of the Karnataka State Commission for Protection of Child Rights, said that these schools presented their minority certificates to the government after students had already been allotted seats in a process stretching from September to December 2013. Aradhya is now one of the respondents in the high court case.

“They did not have these certificates when we made our first announcement,” said Aradhya. “Let them not take in children next year, but this year they should give these children RTE seats.”

Minority institutions were first exempted from the RTE in 2012, after the Society of Unaided and Private Schools in Rajasthan challenged the constitutionality of one particular clause of the RTE: the part that mandates reservation for students of disadvantaged backgrounds.

While upholding the validity of the RTE in the 2012 judgment by a three-member bench, the SC ruled that the act would not apply to minority unaided institutions, although in a minority judgment, Justice Radhakrishnan disagreed and said that only that part of the act pertaining to reservations should not apply. In the recent case, the Pramati Educational and Cultural Trust, a body of schools in Karnataka, challenged this further. A five-member bench of the SC extended the omission to all minority institutions, whether or not they received government funding.

“The whole point of excluding the minority was because it would change the character of the school,” said S Basavaraj, one of the lawyers who represented the petitioning schools in the Supreme Court. “But since the government did not speak, there is now no enforcement of the Right to Education Act at all for any of these schools.”

According to Basavaraj, who was present at all the Pramati hearings, the state government supported the private schools right through. “The bench asked why minorities should not give 25% of their seats to underprivileged people within their own communities,” he said. “But the government did not support that scenario.”

Few schools want to function under the RTE given the number of regulations the act places on all schools under its ambit. They are now exploiting the ambiguous definition of what a minority educational institution is supposed to be, which can be granted on anything from religious to a linguistic parameters, from state to state.

“All you have to do to get a minority certificate for a school is to have a non-majority member on your board,” said Rishikesh Shanker, who works with an educational non-governmental organisation in Bangalore. “Pretty much anyone and everyone can claim a minority tag. That’s all non-Hindu, non-Kannada schools in the state.”

There is no central clarity either on the definition of a minority school. The National Commission for Minorities at the Centre does not define it, which means that each state is free to decide who will qualify for this certificate.

“Nobody knows who is authorised to give a minority certificate,” said Nageshwar G Rao, of the Bangalore-based Child Rights Trust. “One school in Ernakulam even took a minority certificate from a gram panchayat. Every school is now strategising how to get a minority certificate.”

“These schools don’t want interference from the government,” said Rao. “The government will pay Rs 11,600 for every child enrolled under the RTE, which means the schools will have to provide an audit report to the government and justify how much they are spending on each child.”

The SC judgment has also led to peculiar situations. The RTE mandates that children should not have to travel more than one kilometre to a school, but Rao pointed out one example where this could be an issue. “Pulakeshinagar in Bangalore has five schools, all of which are claiming to be minorities,” he said. “There is no government school in that area, which has four slums. So what is the use of this 25% reservation to those parents?”

“We have allotted seats to 108,000 students across Karnataka under the RTE,” said Aradhya. “Only 452 students have been denied admission by minority schools, all of which in Bangalore. This is a big problem.”

(Re-edited on May 19, 12:57 pm.)