The Supreme Court struck down the challenge of private schools to the Right to Education Act (RTE) 2010, upholding its constitutional validity through a majority of chief justice SH Kapadia and Justice Swatanter Kumar.
Justice Radhakrishnan dissented from the view that a fourth of seats in all schools, including private ones, should be reserved for admission to economically weaker students.
The judgment, which was pronounced today, was reserved on 3 August 2011, after the three judge bench had given a prolonged hearing to the Society of Unaided Private Schools and a batch of other petitions contesting the RTE’ss provision mandating the 25 per cent reservation.
The Act, which is operational in at least 19 states, envisages free and compulsory education for all poor children aged between 6 and 14 years. The bench has brought all educational institutions within RTE’s ambit except for unaided minority institutions.
Mint reported that the judgment will be operational from 2012-13 academic year but would not apply retrospectively to any admissions or to resident students in boarding schools.
The private schools’ contention that such mandatory reservation would drain their resources was contested by the government, which promised reimbursement to the extent of the reservation, according to NDTV.
The judgment upheld the inclusive educational law contested by 32 petitioners.
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Whereas, the Constitution (Eighty-sixth Amendment) Act, 2002 inserted Article 21-A in the Constitution of India to provide free and compulsory education of all children in the age group of six to fourteen years as a Fundamental Right in such a manner as the State may, by law, determine. The Right of Children to Free and Compulsory Education (RTE) Act, 2009, which represents the consequential legislation envisaged under Article 21-A, means that every child has a right to full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards.
Article 21-A and the RTE Act came into effect on 1 April 2010. The title of the RTE Act incorporates the words ‘free and compulsory’. ‘Free education’ means that no child, other than a child who has been admitted by his or her parents to a school which is not supported by the appropriate Government, shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education. ‘Compulsory education’ casts an obligation on the appropriate Government and local authorities to provide and ensure admission, attendance and completion of elementary education by all children in the 6-14 age group. With this, India has moved forward to a rights based framework that casts a legal obligation on the Central and State Governments to implement this fundamental child right as enshrined in the Article 21A of the Constitution, in accordance with the provisions of the RTE Act.
Whereas, the findings of the court below are that there were serious problems for non-availability of text books, and the existing problem would be addressed in the month of October. Further the state cannot collect and redistribute old books. Also, the excuse of having a book bank for old books can be farcical only. Regrettably, admitting such versions of the state, the Hon’ble High Court has allowed an inadvertent error to step in the judgment and the loss of studies caused due to negligence of the state has not been considered in an appropriate manner. Here, the unambiguous opinion is that the violation of the rule of law under RTE Act 2009 is the reparable loss of human resource development in young persons of hundreds of thousands of students for whom every citizen of India is paying education cess.
Further, the state filed its reply for only one issue pertaining to books, as it was not asked for to respond to more grave issues of concern, all involving high level corruption in unnecessary activities undertaken by the state, and imposed upon the students which are other than their studies. Like this, the court below did not deem it fit to peruse the matter thoroughly, and has thereby inadvertently ignored the fact that the issues raised in the petition before it were neither negated by the respondents nor these were considered for their correction. Had the issues raised therein the petition been contradicted, claimed false, fabricated and out of the purview of either the respondents or the court below itself, the humble petitioner might have satisfied himself with the judgment irrespective of its being in terms with the remedy sought , and the issues raised and decided accordingly, or in total contravention of thereof, and dismissed out rightly. But it is an untoward episode that despite the admittance of the respondents that it could not provide text books to students, which further implies that the childrens’ fundamental right under Artcile 21A has been infringed upon by the State itself, the High Court could not speak in terms of fixing of liability of anyone for making the studies of 15 lakh students suffer who otherwise have no means to go to private schools. Such compelling circumstances of the case create a fit case for putting it before the apex court with the firm belief of its success in public interest, and for this reason it is prayed that the Honble Court may kindly be pleased to intervene in the matter.
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