SC orders RTE law review by larger Bench
Move after plea seeks directions to declare law ‘unconstitutional’
The Supreme Court on Monday referred the newly enacted law that makes provision for private unaided educational institutions to provide free and compulsory education to children between ages six and 14 to a Constitution Bench to decide its constitutional validity.
A three-judge Bench of Chief Justice S H Kapadia and justices K S Radhakrishnan and Swatanter Kumar said: “The matter has to be placed before a five-judge Constitution Bench as a question of law is involved in the matter.”
The Supreme Court’s referral came after a batch of petitions was filed seeking directions to declare the new Right to Free and Compulsory Education Act as “unconstitutional” and violative of the fundamental rights of unaided private educational institutions.
The Bench said: “Since the challenge involved relates to the constitutional validity of Article 15(5) and also Article 21(A), we are referring the matter to a larger Bench of five judges.”
Article 21(A) states that the state shall provide free and compulsory education to all children between the age of six and 14 in such manner as the state may, by law, determine. Article 15(5) of the Constitution enables the state to make provisions for the advancement of education for the weaker sections of society relating to admission in educational institutions.
Solicitor General Gopal Subramanium submitted that the law was well-drafted and was aimed at providing the conditions that would ameliorate millions of children across the country.
Fundamental Right
The Society for Unaided Private Schools, the petitioner organisation, submitted that the Centre had made free and compulsory education a fundamental right for children between six and 14 years of age and it mandated that even private educational institutions must reserve 25 per cent of seats for children belonging to poor families in accordance with the legislation.
“The Right of Children to Free and Compulsory Education Act, 2009, due to the serious anomalies and provisions, which are violative of the basic structure of the Constitution and fundamental rights, is liable to be struck down after being held constitutionally invalid,’’ said the petition filed by the Society through advocate Shobha.
The Society insisted that the Bench take up the issue as it was of national importance and would affect thousands of schools providing education at the primary level.
In its petition, the Society pointed out that Section 3 of the Act imposed an absolute mandate on all schools, including private unaided and minority institutions, to admit without any choice any neighbourhood child seeking admission to them.
Senior counsel Harish Salve said that the Act had been drafted in haste and, if implemented, would violate the fundamental rights of private schools who have been providing education by setting up schools all over the country.
Fate of children
Salve submitted that the new law was also silent on the fate of children between the age of three and six which was a critical phase when they begin to receive the basic grounding in school.
Questioning the law, Salve said it does not have any provision related to children who migh have skipped the nursery stage and joined school at a later age.
The petition claimed that the impugned Act violated the rights of private educational institutions under Article 19(1)(g) which mandated maximum autonomy to private managements to run their institutions without government interference.
Referring to the T M A Pai case the petition said that the judgement of the 11-judge Constitution Bench had ruled that maximum autonomy should be given to private educational institutions.
