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A CASE COMMENT ON SOCIETY FOR UNAIDED PRIVATE SCHOOLS OF RAJASTHAN V/S UNION OF INDIA

Priyanshi Katta
In a landmark judgment on April 12, 2012, the Supreme Court upheld the constitutional validity of the provision in the Right to Education Act, 2009 that makes it mandatory for all schools (government and private) except private, unaided minority schools to reserve 25% of their seats for children belonging to weaker section and disadvantaged group. The verdict was given by a three-judge bench namely Justice S.H. Kapadia (CJI), Justice Swatanter Kumar and Justice K.S. Radhakrishnan. However, the judgment was not unanimous. Justice Radhakrishnan gave a dissenting view to the majority judgment.1 Supreme Court through various judicial pronouncements has made considerable headway in the realization of socio-economic rights and made them justiciable despite the fact that many of those rights still remain as Directive Principles of State Policy. Socio-economic rights generally serve as a vehicle for facilitating the values of equality, social justice and democracy and the state is a key player in securing that goal. The preamble of the Indian Constitution, fundamental rights in Part III and the Directive Principles of State Policy in Part IV are often called and described as "conscience of the Constitution" and they reflect our civil, political and socio- economic rights which we have to protect for a just and humane society. The Constitution was amended in 2002 as The 86th (Constitutional Amendment) Act, 2002 and a new article -- Article 21A -- was introduced as a fundamental right enjoining the state to provide free and compulsory education to all children from six to 14 years in such manner as the state may by law, determine. Thus the promise of Article 45 of the Constitution was made a fundamental right in 2002.2 The Right of Children to Free and Compulsory Education Act enacted in 2009 is the law made by the state to fructify the fundamental right in Article 21A.3 Controversy erupted over Section 12(1)(c) and (2) of the Act, which required private, unaided schools to admit at least 25% of students from SCs, STs, low-income and other disadvantaged or weaker groups. The Act stated that these schools shall be reimbursed for either their tuition charge or the per-student expenditure in government schools, whichever is lower. After the Act was notified on April 1, 2010, the Society for Unaided Private Schools of Rajasthan filed a writ petition challenging the constitutional validity of this provision on

http://judis.nic.in/supremecourt/chejudis.asp [ last visited on 18.07.2012]

http://www.india.gov.in/govt/constitutions_india.php [ last visited on 18.07.2012]

http://eoc.du.ac.in/RTE%20-%20notified.pdf [ last visited on 18.07.2012]

the ground that it impinged on their right to run educational institutions without government interference. There were two principal features of the RTE Act which were attacked as unconstitutional by private schools. The Act prescribes that private un-aided schools are to admit in class I at least 25% children from weaker sections and disadvantaged groups in the neighbourhood and provide free and compulsory elementary education to them. The law provides for reimbursement of the expenditure incurred per child by the state. The second feature causing distress to private schools is the total ban on subjecting the child or its parents or guardians to any screening procedure for purposes of admission. The main grounds for challenging the law was that the objectionable provisions were a violation of the right of private un-aided schools to practice any profession, or to carry on any occupation, trade or business guaranteed under Article 19(1)(g) of the Constitution. A large number of earlier judgments where courts had been approached by private un-aided professional colleges were cited to affirm the fundamental right to run an educational institution without undue interference from the state. Summary of the judgment4 Majority The Act is constitutionally valid and shall apply to (a) government controlled schools, (b) aided schools (including minority administered schools), and (c) unaided, non-minority schools. The reasons are given below: First, Article 21A makes it obligatory on the State to provide free and compulsory education to all children between 6 and 14 years of age. However, the manner in which the obligation shall be discharged is left to the State to determine by law. Therefore, the State has the freedom to decide whether it shall fulfill its obligation through its own schools, aided schools or unaided schools. The 2009 Act is child centric and not institution centric. The main question was whether the Act violates Article 19(1)(g) which gives every citizen the right to practice a profession or carry out any occupation, trade or business. However, the Constitution provides that Article 19(1)(g) may be circumscribed by Article 19(6), which allow reasonable restriction over this right in the interest of the general public. The Court stated that since education is recognized as a charitable activity [see TMA Pai Foundation v/s State of Karnataka (2002) 8 SCC 481] reasonable restriction may apply. Second, the Act places a burden on the State as well as parents/guardians to ensure that every child has the right to education. Thus, the right to education envisages a reciprocal agreement between the State and the parents and it places an affirmative burden on all stakeholders in our civil society. The private, unaided schools supplement the primary obligation of the State to provide for free and compulsory education to the specified category of students. Third, TMA Pai5 and P.A. Inamdar judgments hold that the right to establish and administer educational institutions fall within Article 19(1)(g). It includes right to admit students and set

http://www.prsindia.org/theprsblog/2012/04/14/supreme-court-upholds-25-reservation-in-private-schools/ [ last visited on 18.07.2012]

up reasonable fee structure. However, these principles were applied in the context of professional/higher education where merit and excellence have to be given due weightage. This does not apply to a child seeking admission in Class I. Also, Section 12(1)(c) of the Act seeks to remove financial obstacle. Therefore, the 2009 Act should be read with Article 19(6) which provides for reasonable restriction on Article 19(1)(g). However, the government should clarify the position with regard to boarding schools and orphanages. The Court also ruled that the 2009 Act shall not apply to unaided, minority schools since they are protected by Article 30(1) (all minorities have the right to establish and administer educational institutions of their choice). This right of the minorities is not circumscribed by reasonable restriction as is the case under Article 19(1)(g). Dissenting judgment Article 21A casts an obligation on the State to provide free and compulsory education to children of the age of 6 to 14 years. The obligation is not on unaided non-minority and minority educational institutions. Section 12(1)(c) of the RTE Act can be operationalised only on the principles of voluntariness, autonomy and consensus for unaided schools and not on compulsion or threat of non-recognition. The reasons for such a judgment are given below: First, Article 21A says that the State shall provide not provide for. Therefore, the constitutional obligation is on the State and not on non-state actors to provide free and compulsory education to a specified category of children. Also, under Article 51A(k) of the Constitution, parents or guardians have a duty to provide opportunities for education to their children but not a constitutional obligation. Second, each citizen has the fundamental right to establish and run an educational institution investing his own capital under Article 19(1)(g). This right can be curtailed in the interest of the general public by imposing reasonable restrictions. Citizens do not have any constitutional obligation to start an educational institution. Therefore, according to judgments of TMA Pai and PA Inamdar, they do not have any constitutional obligation to share seats with the State or adhere to a fee structure determined by the State. Compelling them to do so would amount to nationalization of seats and would constitute serious infringement on the autonomy of the institutions. Rights guaranteed to the unaided nonminority and minority educational institutions under Article 19(1)(g) and Article 30(1) can only be curtailed through a constitutional amendment (for example, insertion of Article 15(5) that allows reservation of seats in private educational institutions). Third, no distinction can be drawn between unaided minority and non-minority schools with regard to appropriation of quota by the State. The majority judgement of Chief Justice Kapadia and Justice Swatanter Kumar in this landmark case naively fails to concern obvious control-and-command stratagem of the education establishment, whose pathetic track record in managing the public education system during the past half century. On the contrary, unmindful of the ground reality that the States has miserably failed to maintain even a semblance of infrastructure or teachinglearning quality in its own schools. The learned justices who speak approvingly of the three-

http://www.indiacourts.in/TMA-PAI-FOUNDATION-Vs.-STATE-OF-KARNATAKA_918d46b0-677b-40cc8a5d-1d19fc2962cf [ last visited on 18.07.2012]

year time period given to budget schools for which there is clearly rising public demand to scale up their infrastructure at their own expenses, didnt feel it incumbent upon themselves to suggest long-term government loans to enable their managements to discharge this obligation. Amid the ongoing discussions related to this ruling, if we read the Right to Free and Compulsory Education Act, 2009 together with the National Curriculum Framework6 and the Sarva Shiksha Abhiyan7 (education for all) pledge, it should be crystal clear that the intent of all these initiatives is to provide good quality elementary education to all children. Perhaps the law should worked out ramifications of the Act in greater detail and provided for steps to be taken to better equip schools for the new social experiment towards equality.

http://www.teindia.nic.in/Files/NCF-2005.pdf [ last visited on 18.07.2012]

http://ssa.nic.in/ [ last visited on 18.07.2012]