Right to Govt. Aid is not a Fundamental Right

The Supreme Court has declared that the right of an institution to get government aid is not a fundamental right on 27 September 2021. Both minority and majority institutions have to follow the rules to get aid and grants. The judgment came in an appeal filed by Uttar Pradesh against a decision of the Allahabad High Court to declare Regulation 101 of the Intermediate Education Act of 1921 unconstitutional. The judgment clarified that according to Article 30 (2), an educational institution under minority management, whether language or religion, must not be discriminated against other institutions while receiving aid and if the government made a policy call to withdraw aid, an institution cannot question the decision as a “matter of right”.

Indian Rights

Article 30

Article 30 of the Indian Constitution gives the right of minorities, whether based on religion or language, to establish and administer educational institutions. Article 30(1A) deals with the fixation of the amount for acquiring the property of any educational institution established by minority groups. It also states that the State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language. It contains various provisions to safeguard the right of minority communities.

Intermediate Education Act of 1921

The Intermediate Education Act of 1921 is an establishment for a Board of High School and Intermediate Education, and it extends to the whole of utter Pradesh. The Board will be responsible for prescribing courses of instructions, textbooks, other books, and instructional material for the High School and Intermediate classes and publishing or manufacturing textbooks, other books, or instructional material. It can also grant diplomas or certificates, conduct  examinations, and publish and withdraw results. Regulation 101 stated, “Appointing Authority except with prior approval of Inspector shall not fill up any vacancy of the non-teaching post of any recognized aided institution.” However, to regulate staff expenditure, a policy decision was taken by the State of Uttar Pradesh not to create any new post in the Class ‘IV’ category. The work is carried out through outsourcing recommendations of the Sixth and Seventh Central Pay Commission. The effect of the amendment was to make the post of Class “IV” employees, which was supposed to be filled up by the institutions through outsourcing. Therefore, the permanent posts were abolished, and the appointment was made through outsourcing. The Allahabad High Court observed that “outsourcing” as a concept of making available the staff to perform Class IV jobs was unconstitutional, arbitrary, and illegal, contrary to Article 14 of the Constitution.

Key Aspects of the Judgement of Supreme Court

The Supreme Court pointed out that Regulation 101 was in the form of subordinate legislation. The Bench stated that the challenge to a regulation stands on a different basis than the one that can be made to an enactment. Since an executive power is a residue of a legislative one, the same power, i.e., the amendment of the disputed regulation, cannot be challenged based on mere presumption. The Bench suggested that once a rule is introduced by way of a policy decision, a demonstration of the existence, manifest, excessive, and extreme arbitrariness, is needed to challenge it.

A grant of government aid comes with accompanying conditions. Government aid is a policy decision, not a fundamental right which depends on various factors, including the interests of the institution itself and the ability of the government to understand the exercise. Financial constraints and deficiencies are factors considered relevant in taking any decision while giving aid, including the decision to grant aid and the manner of giving aid.

According to the judgment, an institution is free to choose to accept the grant with the conditions or go its way. If an institution does not want to accept and comply with the conditions accompanying such aid, it is open to decline the grant and move in its way. On the contrary, an institution can never be allowed to say that the grant of aid should be on its terms. The Bench also stated that a policy decision is presumed to be in the public interest. Once made, such a decision is not amenable to challenge until and unless there is manifest or extreme arbitrariness, a Constitutional court is expected not to intervene directly.