A few days ago, the Bharatiya Janata Party leader and Member of Parliament from East Delhi Maheish Girri introduced a Constitutional Amendment Bill in the Lok Sabha aimed at removing the exemption given to minority educational institutions in the matter of reservation in admissions under Article 15(5) of the Constitution. Given the history of private member bills, this one stands a very small chance of being passed. However, undoubtedly, it is an important step towards restoring parity between minority and non-minority educational institutions.

Under the Right To Education (RTE) Act, the state plays a role in deciding 25 per cent of the seats in any school that qualifies under the Act, but it is not applicable to minority institutions. This article attempts to analyse the issue of exempting minority educational institutions from having to admit students who are not chosen by them.

Restrictions On Rights

The Constitution provides many rights to its citizens, some of which are deemed vital and hence called ‘fundamental’.

Our Constitution grants a number of such Fundamental Rights to citizens. Freedom of speech through Article 19(1)(a), right to practise any profession through Article 19(1)(g) and right to life through Article 21 are a few examples.

The makers of the Constitution have also ensured that these rights are not absolute. Under certain circumstances, the State can impose ‘restrictions’ on these rights, even if they are fundamental in nature. The primary reason for imposing restrictions is that the exercise of the right, without the particular restriction, will lead to an unwanted negative outcome that will cause greater harm than good that the right brings with it. For example, the State gives freedom of speech to all its citizens. However, if an individual, who is in possession of some State secrets by virtue of his employment with the government, publishes it, then it will surely compromise national security. Hence restrictions act as safeguards during exercise of rights.

Some of these restrictions have been encoded in the Constitution. Examples are Articles 19(2) to 19(6), which imposes restrictions on the rights guaranteed under Article 19(1). There are few other rights provided by the Constitution, which do not have an explicit restriction mentioned in the Constitution itself. However, the judiciary has from time to time extended the concept of restrictions to these rights as well, and correctly held that no right can be absolute.

Similarly, the educational rights guaranteed to minorities under Article 30(1) can be subjected to certain restrictions to ensure ‘there is no maladministration’ even though the Constitution itself does not specify any such restriction.

Nature of Restrictions

Based on the type of restrictions imposed through the Constitution and Supreme Court jurisprudence, some key attributes of these restrictions have been identified.

Restrictions can be imposed only by following due process of law

The restrictions must be reasonable in nature

If there are clauses explicitly calling out the purpose, then the restrictions necessarily have to conform to those purposes.

In his book, Fundamental Rights and Their Enforcement, Udai Raj Rai identifies several key criteria that a restriction must satisfy for it to be valid.

Restrictions

Should not be disproportionate

Should not be excessive

Should not be more than what is required to prevent the evil that is being remedied

Can lead to total withdrawal of the Right, if circumstances so warrant

Must factor the prevalent conditions of the time

In addition to the nature of restrictions mentioned above, there are at least two other important attributes to restrictions that are important in the context of the current discussion.

Restrictions must not be redundant: If a particular restriction is inherently applicable to every action of a citizen, or is exhaustively covered elsewhere, it serves no purpose to call it out specifically in the context of a particular right. For example, every citizen has a right to life. It is coded explicitly in Article 21. Therefore, there is no need to explicitly mention separately that the right to practise any profession or occupation should not lead to any loss of life.

Restrictions such as conformance to standards related to health, hygiene, sanitation and others are general restrictions applicable to all rights and no explicit encoding is required. On the other hand, correctly identifying ‘related’ restrictions is important.

The interest that is being protected must be directly related to the right being restricted: For example, the right to practise any profession has a restriction that subjects the right to proper professional qualifications requirement. A good description of this attribute was given by the Supreme Court in Rev Sidhajbhai Sabhai And Others vs State Of Bombay in the context of Article 30 dealing with educational institutions: