Right To Government Aid: An Analysis From The Perspective Of Fundamental Rights

On 27^th September, 2021, the Supreme Court held in a judgment that the right of an institution, whether run by a majority or minority community, to get government aid is not a fundamental right.

About the Case

The judgment came during an appeal filed by Uttar Pradesh against a decision of the Allahabad High Court to declare a provision of the Intermediate Education Act of 1921 unconstitutional.

Observations of Supreme Court

According to Article 30(2) of the Constitution, if an institution is under the management of a minority, whether based on religion or language, a grant of aid to that educational institution cannot be discriminated against if other educational institutions are entitled to receive aid.

• A grant of government aid comes with accompanying conditions and regulations decided by the state. An institution is free to choose to accept the grant with the conditions or go its own way.
• If an institution does not want to accept and comply with the conditions accompanying such aid, it can decline the grant and move in its own way.
• An institution can never be allowed to say that the grant of aid should be on its own terms.

Reasonable Regulations – Kerala Education Bill Case

In Kerala Education Bill Case, the court said that grant of aid or recognition to a minority institution cannot be made dependent on their submitting to such stringent conditions which amounts to surrendering their right to administer. However the right to administer does not include the right to misadministration and reasonable regulations can be made.

• In this case it was held that regulations relating to protection and security of teachers and to reservation in favor of backward classes were held to be permissible regulations. But the provision relating to centralization of recruitment of teachers through State Public Service Commission and taking over the collection of fees, etc. were held to be violative of rights of minorities.

Arguments against Right to Government Aid as a Fundamental Right

• Constraints of State Capacity: A decision to grant aid is by way of policy. The government is not only concerned with the interest of the institutions but also by its capacity to undertake such an exercise.
• Financial constraints and deficiencies restrict the state in taking any decision with respect to aid. It will add a significant burden to the already strained fiscal resources of the country.
• Reduced Spending on Social Sectors: The state has limited capacity to generate revenue and spend. If the provisioning of aid increases, spending on social sectors will be reduced due to the limited fiscal space.
• No Difference between Minority and Non-minority Institutions: The Supreme court has ruled that in case of aided institutions, there is no difference between a minority and non-minority institution. The essence of Article 30(1) is to ensure equal treatment between the majority and the minority institutions.

Arguments for Right to Government Aid as a Fundamental Right

The regulation would violate the fundamental rights granted to minority institutions under Article 30(1) of the Constitution of India whereby ‘All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.’

• It gives the right to the state to arbitrarily decide on providing government aid to an institution.
• It may lead to exploitation of minorities and decline of their cultures and traditions. It may hamper the diversity of the country.