The Supreme Court yesterday referred the Right of Children to Free and Compulsory Education (Amendment) Act, 2010 (Act) to a constitutional bench saying that its judicial validity needs to be examined in greater detail. A bench headed by Chief Justice S.H. Kapadia which included Justices K.S. Radhakrishnan and Swatanter Kumar held that since the Constitution has been amended to accomodate the Act, the matter needs to decided by a larger bench.

The decision to refer the Act to a constitutional bench stemmed from nearly 8 PILs that have challenged the validity of the Act. The Petitioners state that the Act violated Article 19 (1) (g) of the Constitution which, allows autonomy to private unaided educational institutions to a maximum extent without interference from the State or National governments.

The Act, which, provides free and compulsory education to all the children between the ages of 6-14 has also made it compulsory for private schools to reserve 25 percent of its seats for children from economically weaker sections of the society. Any cost that prevents a child from accessing school will be borne by the State which, shall have the responsibility of enrolling the child as well as ensuring attendance and completion of 8 years of schooling.

The Act also makes it mandatory for schools to apply for recognition and follow any norms regarding training of teachers and academicians that might be prescribed.

Speaking to Bar & Bench, Parikshet Sirohi, a litigator and counsel to the Central Government says, “ Prima facie, the Act appears to be violative of Article 19 (1) (g). The Act seems like a good aspect on paper but the reality is completely different. There is a severe shortage of teachers and manpower. The Act also specifies that there should be a 1:40 teacher student ratio, which we all know isn’t possible in several schools across the country. Article 19 (3) of the Act states that if the school does not fulfill the norms prescribed, then it would be de-recognised. That would be a retrograde step against Article 19 (1) (g) of the Constitution and more dangerously against the very Act. Therefore, the Act appears arbitrary in its present state.”

Vikas Maniar, Programme Co-ordinator at the Akshara Foundation says, “The implementation of certain provisions of the Act, like norms regarding teachers have been largely followed in Karnataka but some states like UP, Bihar, etc., are really struggling.” Asked whether the Act in its present state is arbitrary especially in regard to the de-recognition of schools in event of failure to prescribe to the norms laid down by the Act, Vikas said, “Regulation is a State initiative. The Act has laid down basic norms regarding the teaching standards, infrastructure and minimum curriculum which is within the State’s perview. De-recognition isn’t easy, there is a whole process to be followed where the school receives a notice and has to reply within the prescribed time, etc. Also, 60 to 80 percent of the schools are government schools which cannot be de-recognised.”

It must be noted that the Act makes no provisions for caste or religion based reservations in private schools. It only makes clear that the 25 percent quota must be filled in the manner prescribed under any circumstances. It does not seek to control the academic standards or syllabus or any other internal administrative functions of private educational institutions.

One fails to see the reason behind the enthusiastic protests against the Act when the Act makes it clear that the State will pay at the rate of average per learner costs in the government schools (unless the per learner costs in the private school are lower).

A copy of the Act can be found here.