In a majority verdict that spelt out the private sector‘s obligation towards society, a three-judge Bench of the Supreme Court upheld the constitutional validity of the Right of Children to Free and Compulsory Education (RTE) Act, 2009, on Thursday.
The law mandates the provision of 25 per cent free seats for children from the economically weaker section even in private unaided schools uniformly across the country.
The ruling came on a number of petitions that private unaided schools had filed before the apex court, challenging the constitutional validity of the law on the ground that it infringed upon their fundamental right to carry on a business or trade of their choice.
They had contended that instead of overhauling the functioning of educational institutions run by it, the government was passing the buck to private schools.
The SC Bench comprising Justice S.H. Kapadia, Justice Swatanter Kumar and Justice K.S. Radhakrishnan decided in a 2:1 verdict that the law would be applicable even to private educational institutions. Justice Kapadia and Justice Kumar observed that the right to education placed ‘an affirmative burden on all stakeholders in our society’.
Though the majority verdict carved out an exception only for unaided minority schools, Justice Radhakrishnan, in his minority judgment, said no obligation could be put on any unaided school in the private sector.
The heads of a number of private schools in the NCR said they supported the overall aim of inclusive education, but voiced their concern about the effect RTE would have on the schooling system. Arun Kapur, director of Vasant Valley School, welcomed the judgment, saying: ‘One needs to note that the Supreme Court has given a split verdict on the issue.
‘The majority judgment is silent on a lot of points that have been discussed in detail by Justice Radhakrishnan in his dissenting opinion.’
Highlighting one such instance, he said: ‘The minority judgment states that provisions regarding the proof of age, denial of admission and age-appropriate admission are directional and not mandatory, and the majority judgment says nothing about this.
Presuming that the minority judgment prevails on issues that the majority has chosen to remain silent on, I think the verdict provides great clarity in areas that were causing a lot of concern to the private schools.’ Govt has to pay The 2009 Act envisages free and compulsory education for children between 6 and 14 years of age in a neighbourhood school.
The law sought to involve the private sector and had even made it mandatory for unaided schools to fill 25 per cent seats with children from the weaker sections of society. In the case of unaided schools, the government was, however, under an obligation to reimburse the expenditure incurred by them to the extent of the state’s own per-child allocation for education.
Kapur, while supporting 25 per cent reservation for poor students, expressed concern over how the government was going to calculate this rate of reimbursement for private schools. He also pointed out that the verdict had put an equal onus on the government to improve its quality of education. ‘The government has to meet its own quality parameters laid down in the Act.
If it can do that, the landscape of education in the country will change completely,’ he said. The apex court, too, conceded that the primary obligation to provide free and compulsory education to children aged between 6 and 14 years lay with the state. At the same time, the SC asserted that the state itself could determine by law the manner in which this obligation would be discharged.
Significantly, Justice Radhakrishnan said Article 21A used the expression ‘such manner’, which meant the manner in which the state had to discharge its constitutional obligation and not simply offload those obligations on unaided educational institutions. Ameeta Wattal, principal of Springdales School, Pusa Road, expressed a similar view as Kapur’s: ‘At the end of the day, the judgment also puts a large onus on the state.
It is imperative that the government put its house in order…Ultimately, private schools are few and far between; they can’t be held responsible for the education of the country.’
Though the apex court gave a verdict that vindicated the government’s stand on free and compulsory education, a circumspect human resource development minister Kapil Sibal noted that litigation in court ‘should never be looked as a victory or defeat, especially when the government is involved’.
Addressing the media, he said: ‘The Supreme Court has made sure that the legislation is seen from the point of view of the child and not educational institutions.
‘This clarity was much needed and now we can finally move forward.’ While delivering the judgment, the court specified that apart from government schools, the law would also apply to private sector aided non-minority and minority schools and unaided non-minority schools.
Even as day scholars in schools and orphanages, comprising both day scholars and boarders, would have to conform to it, the law won’t apply to boarding schools. No way out The verdict brings into force the RTE Act with immediate effect and would apply to admissions in the 2012-13 academic session.
Therefore, private schools in the Capital will have to offer free education to children from the neighbourhood, whose households earn less than Rs 1 lakh per year.
‘I personally feel that, as an inclusive setup, there is no problem with it…One needs to give such students a little more input and a little more help,’ Dr Usha Ram, principal of Laxman Public School, said. ‘This allows us to look after them from the very beginning, if we also get some reimbursement from the government.’
‘If the government doesn’t support the schools, there will be resentment from fee-paying parents,’ Wattal said.
‘The government has to realise that it has to hold the hands of the schools, because a school has to keep growing…and the moment the fee is raised, it’s looked at aggressively.’ Modern School Barakhamba Road’s Lata Vaidyanathan also insisted that the government should make efforts to help all schools adapt to the new standards.
Kapil Sibal downplays the government’s ‘victory’
Even though the apex court gave a verdict that vindicated the government’s stand on free and compulsory education, Union human resource development minister Kapil Sibal on Thursday chose to downplay the victory.
He welcomed the judgment upholding the constitutional validity of the Right to Education Act, but was careful enough to add that litigation in court ‘should never be looked as a victory or defeat, especially when the government is involved’.
‘A legislation of this nature, which has a long-term impact and brings about far reaching changes, is usually tested in the court of law.
‘The Supreme Court has made sure that the legislation is seen from the point of view of the child and not the educational institutions. This clarity was very much needed and now we can finally move forward,’ he said at a press briefing.
A consortium of private schools headed by the Society for Unaided Private Schools in Rajasthan had approached the apex court questioning the validity of the Act on the ground that it impinged on their rights to run their institutions without governmental interference.
On Thursday, the court ruled that the Act applies to government and unaided private schools, except unaided private minority schools. However, according to the ministry officials, it will apply to many minority schools as well because most of them get grants or are government-aided.
On private schools threatening to hike the fee because of the greater financial burden (on account of educating students from weaker sections for free), Sibal said: ‘The society will have to share the responsibility of looking out for kids from the weaker sections, especially those schools which have large financial reserves.’