SC upholds constitutional validity of Right to Education Act Majority opinion holds Act applicable to all schools except private minority institutions

In a decision which is likely to have far-ranging consequences in the field of education, the Supreme Court upheld the constitutional validity of the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act). The RTE Act is applicable to children between the age of six and fourteen. The SC Bench in its judgment, which is prospective in nature, has mandated all government and private unaided schools to reserve 25 per cent of their seats for economically backward students..The Bench, which had reserved judgment more than 8 months ago on August 3, 2011, had a difference of opinion in its verdict in Society for Un-aided Private Schools of Rajasthan v Union of India & Anr [WP 95 of 2010]. The majority opinion of CJI Kapadia and Justice Swatanter Kumar, holds that the RTE is applicable to all schools except to unaided minority schools..The operative part of the majority opinion reads: “20. Accordingly, we hold that the Right of Children to Freeand Compulsory Education Act, 2009 is constitutionally valid and shall apply to the following:(i) a school established, owned or controlled by the appropriate Government or a local authority;(ii) an aided school including aided minority school(s) receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority;(iii) a school belonging to specified category; and(iv) an unaided non-minority school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority.However, the said 2009 Act and in particular Sections12(1)(c) and18(3) infringes the fundamental freedom guaranteed to unaided minority schools under Article 30(1) and, consequently, applying the R.M.D. Chamarbaugwalla v.Union of India [1957 SCR 930] principle of severability, the said 2009 Act shall not apply to such schools.”.However, Justice Radhakrishnan in his dissenting opinion (which runs in to 149 paras), has stated that the RTE is not applicable to minority institutions (unaided or aided) as well as schools which fall under S.2(n)(iv) of the RTE Act (unaided private schools)..Justice Radhakrishnan’s in his minority judgment said: “Part VI…8. The provisions of Section 21 of the Act, as provided, would not be applicable to the schools covered under sub-Section (iv) of clause (n) of Section 2.They shall also not be applicable to minority institutions, whether aided or unaided.…”.The Hindu reported that the Union of India had vigorously defended the RTE, stating that it calls for ““moving towards composite classrooms with children from diverse backgrounds, rather than homogeneous and exclusivist schools”..The Government was represented by Attorney General Goolam E. Vahanvati and Additional Solicitor General, Mrs. Indira Jaising..On the other hand, the Petitioners had argued that specific provisions of the RTE Act such as Section 12(1)(b) and 12(1) (c) are in violation of the fundamental rights guaranteed to minority communities as well as the rights granted under Article 19(1)(g) of the Constitution..The matter saw a veritable battery of senior counsels appearing including Harish Salve, Rajeev Dhavan, T.R. Andhyarujina, Vikas Singh, K. Parasaran, Shekhar Naphade, Arvind Dattar, Ashok Desai and Chander Uday Singh representing a variety of educational institutions..Bar & Bench spoke to Vdenta Verma, Counsel for Forum for Promotion of Equal Education for All..Verma said, “The introduction of Article 21A was welcomed by all the schools across the country and believed that the Article has been introduced for the brighter future of the country. However, when RTE Act was enacted, various legal questions arose thereafter and there were various provisions in the Act, which led to many grievances across schools in the country. Keeping in view these legal questions and grievances, the Supreme Court has today delivered the judgment”..Verma further said, “The Apex Court has held that all government and private unaided schools to reserve 25 per cent of their seats for economically backward students. I suppose minority schools across the country will welcome the judgment and will view it as a celebration of its constitutional right. In as much as the non minority private educational institutions are concerned, they will have to study the judgment before they can comment any further.”.HRD Minister Kapil Sibal was visibly very happy with the judgment. Speaking to India Today he said, “What the court has given us today is clarity on the issue so that all controversies are set to rest. When the controversies are set to rest, our vision of education moves forward. So we are very happy that all controversies are set to rest and there is a clarity.”.The complete text of the judgment can be found here..A copy of the RTE Act can be read here.