SC to give early hearing to petitions challenging RTE

New Delhi: With admission season underway, the Supreme Court on Friday agreed to give early hearing to petitions challenging the validity of the provision of Right to Free and Compulsory Education Act which mandated 25 percent of reserved seats for economically backward sections in private unaided schools.

A Bench headed by Chief Justice SH Kapadia agreed to give hearing on a bunch of petitions on a priority basis after taking note of the affidavit of the government which said the issue did not involve Article 15(5) of the Constitution.

The court said a three-judge bench can hear the matter if the issue of of basic principle of the Constituion was not raised.

The Bench was told that early adjudication of the matter was must in view of the ongoing admission process in schools which have to be completed by April.

The Bench hinted that the matter could be heard by the end of this month or in February after it concludes hearing on some of the part-heard matters.

The main petitioner Society for Un-aided Private Schools, Rajasthan, and a host of associations representing various private schools have questioned the validity of the Act on the ground that it impinged on their rights to run the educational institutions.

The Bench, during the last hearing, had said it would not like the matter to be referred to the Constitution Bench.

The apex court had noted that since the amendment to the Constitution which led to the enactment of the Right to Education Act has been challenged, the matter would be placed before a larger bench to decide its legal validity.

The petitioners had contended that the issues involved in the Act relate to Article 15 (5) and to Article 21(A) of the Constitution.

The court was hearing a batch of petitions which claimed the Act violated the rights of private educational institutions under Article 19(1)(g) which provided maximum autonomy to private managements to run their institutions without governmental interference.

The Act, which made free and compulsory education a fundamental right for children between 6-14 years, also mandated that private educational institutions have to reserve 25 per cent of the seats for children from poor families.

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 did 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 challenged the provision in the law which makes it mandatory to promote all students till Class 8.