‘RTE Act violates right conferred on unaided minority schools'
Apr 13, 2012 03:29 AM , By J. Venkatesan
Reservation will change their character, says Supreme Court

The Supreme Court on Thursday held that the Right to Education Act would not apply to unaided minority schools.

The majority judgment by Chief Justice S.H. Kapadia and Justice Swatanter Kumar said: “Reservation of 25 per cent in such unaided minority schools will result in changing the character of the schools if the right to establish and administer such schools flows from the right to conserve the language, script or culture, which right is conferred on such unaided minority schools. Thus, the 2009 Act including Section 12(1) (c) violates the right conferred on such unaided minority schools under Article 30(1).”

While upholding the Act in respect of others, the Bench said: “The Act has been enacted keeping in mind the crucial role of Universal Elementary Education for strengthening the social fabric of democracy through provision of equal opportunities to all. There is a power in the 2009 Act coupled with the duty of the state to ensure that only such government funded schools, which fulfil the norms and standards, are allowed to continue with the object of providing free and compulsory education to the children in the neighbourhood school.”

Dissenting judgment

Justice K.S. Radhakrishnan in his dissenting judgment said: “Article 21A, as such, does not cast any obligation on the private unaided educational institutions to provide free and compulsory education to children of the age 6 to 14 years. Article 21A casts a constitutional obligation on the state to provide free and compulsory education to children of the age 6 to 14 years.”

He said though the purpose and object of the Act was laudable, “that is, social inclusiveness in the field of elementary education, the means adopted to achieve that objective is faulty and constitutionally impermissible. The law is well settled that the state cannot travel beyond the contours of Clauses (2) to (6) of Article 19 of the Constitution in curbing the fundamental rights guaranteed by Clause (1), since the Article guarantees an absolute and unconditional right, subject only to reasonable restrictions. Article 21A requires non-state actors to achieve the socio-economic rights of children in the sense that they shall not destroy or impair those rights and also owe a duty of care.”

The judge said: “The state, however, cannot free itself from obligations under Article 21A by offloading or outsourcing its obligation to private state actors like unaided private educational institutions or to coerce them to act on the State's dictates. Private educational institutions have to empower the children, through developing their skills, learning and other capacities, human dignity, self-esteem and self-confidence and to respect their constitutional rights. Children who opt to join an unaided private educational institution cannot claim that right as against the unaided private educational institution, since they have no constitutional obligation to provide free and compulsory education under Article 21A. Needless to say that if children are voluntarily admitted in a private unaided educational institution, they can claim their right against the State, so also the institution.”

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