Supreme Court holds minority schools to be exempt from RTE Act [Download judgment]
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Supreme Court holds minority schools to be exempt from RTE Act [Download judgment]

Murali Krishnan

The Supreme Court today upheld the Constitutional validity of Articles 15(5) and 21A of the ConstitutionIt, however, held that the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) in so far as it applies to minority schools, aided or unaided, is unconstitutional.

The judgment was delivered in a batch of fourteen petitions filed by charitable organisations that are running private schools in Karnataka challenging the Constitutional validity of Article 15 (5) of the Constitution and the RTE Act. In the process, they had challenged the decision of the Supreme Court in the case of Society for Un aided Private Schools of Rajasthan v. Union of India & Anr. [WP (c) 95/ 2009] delivered in April 2012.

A Constitution Bench comprising Chief Justice RM Lodha and Justices AK Patnaik, SJ Mukhopadhaya, Dipak Misra and FMI Kalifulla had heard the matter and reserved its judgment on March 13, 2014.

Senior Advocates who appeared for the petitioners included Mukul Rohatgi, Rohinton Nariman, Anil Diwan, Rama Jois, Ajmal Khan, Rajeev Dhavan and Arvind Datar.

Solicitor General Mohan Parasaran and Additional Solicitor General KV Vishwanathan represented the Central government while the State of Karnataka was represented by Senior Advocate MN Rao. Senior Advocates TR Andhyarujina and V Giri and Advocates Mahesh Agarwal and Jayna Kothari appeared for the intervenors.

The Petitioners had contended that Article 15(5), which enables the State to enact laws to provide reservation for socially and educationally backward classes in private unaided institutions (except minority institutions), infringed upon their freedom of occupation under Article 19(1)(g).

They had further argued that the responsibility envisaged under Article 21A to provide free and compulsory education to children between the age of six and fourteen was cast on the State and it could not be conveniently delegated to private unaided institutions. Contending that private educational institutions do not fall within the ambit of State under Article 12, the Petitioners had submitted that Article 21A, to the extent of allowing reservations in private unaided institutions, would be violative of Article 19(1)(g). Consequently, they had assailed the RTE Act enacted under Article 21A as violative of the freedoms under Article 19 (1) (g). The Petitioners had also claimed that equal treatment of aided and unaided institutions was arbitrary and violative of Article 14.

The court observed that no constitutional rights were violated by Articles 15(5) and 21A but they only provided a new power to the Parliament to enact laws to ensure that all children between the age of six and fourteen receive education as per the constitutional mandate. It also held that so long as any law so enacted, 

“Forces admission of children of poorer, weaker and backward sections of the society to a small percentage of the seats in private educational institutions to achieve the constitutional goals of equality of opportunity and social justice set out in the Preamble of the Constitution, such a law would not be destructive of the right of the private unaided educational institutions under Article 19(1)(g) of the Constitution.”

However, in a stark departure from its previous judgment delivered in April 2012, the Court chose to carve out the entire set of minority schools as a separate class entitled to be exempted from the ambit of the RTE Act. It, therefore, held that,

“Under Article 30(1) of the Constitution, all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. …this Court has repeatedly held that the State has no power to force admission of students from amongst non-minority communities, particularly in minority schools, so as to affect the minority character of the institutions.

Therefore, the 2009 Act insofar it is made applicable to minority schools ….is ultra vires the Constitution. We are thus of the view that the majority judgment of this Court in Society for Unaided Private Schools of Rajasthan v. Union of India & Anr. (supra) insofar as it holds that the 2009 Act is applicable to aided minority schools is not correct.”

In April 2012, a three judge Bench of the Supreme Court, had, by a majority of 2:1, upheld the Constitutional validity of the RTE Act while laying down that it would be applicable to all schools except unaided minority schools.

Read the full judgment below.

Image taken from here

Pramati-Educational-Cultural-Trust-and-Ors.-v.-Union-of-India.pdf
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