Constitution Bench of Supreme Court to hear petition on validity of Right to Education Act

More than a year after the Supreme Court upheld the constitutional validity of the Right of Children to Free and Compulsory Education Act, 2009 (the Act), the Act shall be examined once again. In November this year, a Constitution Bench of the Apex Court shall decide on the constitutional vires of the Act. .In April last year, the majority opinion of a three-judge Bench headed by then Chief Justice SH Kapadia had stated that the Act would be applicable to all schools other than unaided minority schools..As per a report in The Telegraph, in April this year notice was issued in a petition filed by Federation of Public Schools, a “conglomerate of over 350 private unaided schools”. The Federation has reportedly argued that the 2012 judgment violates their right to run their institutions “without government interference”.Another ground of challenge against the 2012 judgment was the fact that,.“…according to the Constitution, when a substantial question of law with regard to the interpretation of the Constitution arises, it is required to be decided by a bench consisting of at least five judges.”.Besides issuing notice, the order passed by Justices K.S. Radhakrishnan and Dipak Misra states that the matter be placed before a larger Bench for further consideration. On August 23, 2013 a three-judge Bench led by Chief Justice P Sathasivam directed that the matter be heard by a Constitution Bench..This reference to a larger Bench raises several questions on the method adopted by the Apex Court in passing the 2012 judgment itself. As legal academic and author, Nick Robinson notes in this post,.“Although last week’s order gives no reasoning as best as I can tell it basically represents the Supreme Court admitting that it messed up. What’s so troubling is that all of this was an entirely foreseeable outcome of having the original case heard by just three judges. This issue of judge strength was raised during the initial challenge to the Right to Education Act, but the judges sitting on the matter then decided to continue to hear it anyway (albeit with the consent of the present parties)…..A matter like the Right to Education Act case deserved to have at least five judges thinking through the different legal and policy implications of their judgement (not to mention the Indian Constitution arguably demanding at least five judges). ”.The challenge to this Act is one of several matters to be heard by a Constitution Bench in the coming weeks. A brief analysis of the various matters up for consideration before a Constitution Bench can be found here.