SC asks states, stakeholders views on RTE validity

A three-judge bench of Chief Justice S H Kapadia, K S Radhakrishnan and Swatanter Kumar took the suo motu decision at the fag end of the day-long hearing on a writ petition filed by the Society for Unaided Schools of Rajasthan.

Instead of hearing only the Society which filed the writ petition last year challenging the constitutional validity, the apex court decided to broadbase the scope of the hearing by inviting all other stake holders.

"In case any society/association/society desires to appear and make submission before the bench by way of intervention/impleadment/or petition it may do so.

"Similarly all states, UTs are put on notice that if they desire to make submissions on the batch of writ petitions they may do so. The batch of writ petitions will be taken up on March 29," the bench said in an order.

The apex court, during the hearing, had remarked that private schools should not complain about the additional burden as investment in education was an investment for the country's future.

The bench, however, said it was willing to strike down the legislation if the private schools are able to establish that constitutional principles have been violated by enactment of the Right to Education Act under which free and compulsory education had been made mandatory for all children in the age group of 6-14 years.

Senior counsel Shekar Naphade, during the arguments today, submitted the decision to reserve 25 per cent seats in private educational institutions "was not based on any intelligible data having nexus to the objects of the Act" since there were no clear parameters for reimbursing the private schools.

According to the private schools, since 25 percent of the seats have been reserved for the EWS, the displaced children from the middle and rich class have to take seats in government schools, creating an anomalous situation.

The apex court had earlier asked Additional Solicitor General Indira Jainsing to furnish data, if any, on the number of students who may stand benefited under the EWS quota.
The main petitioner Society for Un-aided Private Schools, Rajasthan, and certain associations representing private schools have questioned the validity of the Act on the ground that it impinged on their rights to run the educational institutions.
The petitioners had contended the issues involved in the Act relate to Article 15 (5) and to Article 21(A) of the Constitution.

Article 21(A) says the state shall provide free and compulsory education to all children of the age of six to fourteen years in such a manner as the state may, by law, determine.

Article 15 (5) of the Constitution enables the state to make provisions for advancement of education for weaker sections of society relating to admission in educational institutions.

The petitions contended that the RTE Act, 2009, is "unconstitutional" and "violative" of fundamental rights.

The petitioners cited the Supreme Court's 11-judge Constitution bench ruling in TMA Pai case wherein it was ruled that maximum autonomy should be provided to private educational institutions

According to the petitioners, Section 3 of the Act imposed an absolute mandate on all schools, including private unaided and minority institutions, to admit without any choice each and every child whosoever comes to take admission in the schools in the neighbourhood.

The provision prohibits any type of screening which is necessary for the procedure of admission, the petitioners said.

The Act was silent on the fate of the children between the age of 3-6 years which was in fact a crucial period for a child's education to commence, they said.

Further, the law does not permit the educational institutions to verify the age of the children coming for admission, the petitioner said, adding the power to expel students from the institution for unruly behaviour has been taken away by the new law.
The petitioners have also challenged the provision in the law which makes it mandatory to promote all students till Class 8.