Right to Education: neither free nor compulsory - The Hindu

9th May 2014 - Link

Background:

2002:

Constitution (Eighty-sixth Amendment) Act 2002 added Article 21A to the Constitution, which requires the state to provide free and compulsory education to all children aged six to 14.

2009:

Right of Children to Free and Compulsory Education Act 2009 (“2009 Act”) was enacted, which provides that children aged six to 14 have a right to free and compulsory education, and provides for a quota of 25% of school seats to be reserved for children from weaker and disadvantaged sections.

Several private schools challenged the constitutional validity of the 2009 Act on the basis that the law, which imposed infrastructural and regulatory requirements on schools and violated:

• Article 19(1)(g): constitutional right to practise any profession or occupation.
• Article 30(1):  the constitutional rights of minority groups to establish and administer schools. 

2012:

SC  gave Judgement in - Society of private schools of Rajasthan Vs Union of India (Rajasthan Schools case)

Judgement:

The majority of the Court held that the 2009 Act is constitutionally valid and shall apply to government-controlled schools, government-aided schools (including minority schools), and private unaided non-minority schools.

However, the 2009 Act infringes the fundamental freedom guaranteed to unaided minority schools under the Constitution, therefore the Act shall not apply to such schools.

Court reasoning:

The main question is whether the 2009 Act violates Article19(1)(g) of the Constitution (which gives every citizen the right to practise any profession or occupation.)

Why should it apply to rest of the institiutions?

Article 19(6) of the Constitution of the Constitution - The State can regulate by law the activities of private schools, including admission, by imposing reasonable restrictions in the public interest under .

The quota obligation imposed on private unaided non-minority schools is in the public interest and is a reasonable restriction for the purposes of Article 19(6). Therefore, the 2009 Act shall apply to private unaided non-minority schools.

Why it shouldn't apply to unaided minority schools?

Article 29(1) of the Constitution protects the right of minorities to conserve their language, script or culture, and

Article 30(1) protects their right to establish and administer schools of their choice.

So according to the court - Imposing a quota on such schools would result in changing their character and would therefore violate these minority rights. Therefore, the 2009 Act shall not apply to unaided minority schools.

Regarding government-aided minority schools, Article 29(2) of the Constitution protects every citizen’s right of admission into a State-aided school. Accordingly, the 2009 Act shall apply to aided minority schools.

2013:

In Pramati Educational and Cultural Trust Vs Union of India : The Court has gone further than Rajasthan Schools and completely removed all minority schools, whether aided or unaided, from the purview of the RTE Act.

Three problems are evident with the reasoning adopted in Pramati 

First:

It has placed Article 30 on a pedestal, possibly elevating it to a status above the fundamental freedoms, even Article 21. All fundamental rights are limited by reasonable restrictions imposed by law on certain bases, but Article 30 alone, on the Court’s interpretation in Pramati, is above any restriction in any manner.

Second: 

The Court bases its reasoning upon judgments in T.M.A. Pai v State of Karnataka (2002) and P.A. Inamdar v State of Maharashtra (2005) which were decided in the context of tertiary education and not primary education. The Constitution does not recognize a fundamental right to tertiary education, but primary education is a fundamental right.

Third:

It was held, for instance, in TMA Pai that admitting a few members of a non-minority group into a minority institution does not take away the minority character of such an institution and that Articles 29 and 30 clearly contemplate such an inclusion.

The Court’s judgment in Pramati, by closing the door to non-minority students of economically weaker sections, actually goes contrary to the principles laid down in the earlier Bench decisions in TMA Pai and Inamdar, despite the Court extracting passages from these judgments in Pramati.