25 percent seats for poor under education act upheld

New Delhi, April 12 (IANS) The Supreme Court Thursday upheld the constitutional validity of the right to education act that mandates unaided private schools keeping 25 percent of seats for students from economically and socially weaker sections of society.

However, the court made it clear that this quota would not be applicable to unaided minority institutions.

The court said that the provision of 25 percent allocation of admission would apply to all aided school including aided minority school(s) receiving aid or grants to meet whole or part of its expenses from the appropriate government or the local authority.

The apex court bench of Chief Justice S.H. Kapadia and Justice Swatanter Kumar by majority judgment upheld the constitutional validity of Section 12 (1) (C) of the RTE act that provides 25 percent reservation for students from weaker sections of society.

However, Justice K.S. Radhakrishnan, in a separate judgment, held that the mandate under RTE providing for reservation of seats was not constitutionally valid, thus none of the unaided schools, be it majority or minority, could be compelled to earmark 25 percent seats in their institutions for weaker sections.

While differing on the allocation of 25 percent admission for weaker section students in unaided non-minority and minority institution, the court otherwise was one in upholding the constitutional validity of the Right to Education Act, 2009.

The court said the judgment will come into force from Thursday itself, but the admissions already made will not be disturbed. This judgment will "operate from today. In other words, this will apply from the academic year 2012-13. However,

admissions given by unaided minority schools prior to the pronouncement of this judgment shall not be reopened," it said.

The court said this while disposing of a batch of petitions by the Society for Unaided Private Schools, Independent Schools Federation of India and others who had contested the constitutional validity of the provision in the right to education law under which they had to reserve 25 percent seats for economically weaker sections in their schools.

The schools had contended that the reservation for children from vulnerable sections of society violated their right to run educational institutions without the state's interference. They said that the admission to poor students would drain their resources and bring down their academic standards. This was contested by the government which had said that it reimburses the expenses incurred by these schools.

Upholding the constitutional validity of the provision providing for 25 percent allocation of schools admissions to students from weaker sections, the majority judgment pronounced by Chief Justice Kapadia said: "It is not in dispute that education is a recognized head of 'charity'. Therefore, if an educational institution goes beyond 'charity' into commercialization, it would not be entitled to protection of Article 19(1)(g)."

"This is where the paradox comes in. If education is an activity which is charitable, could the unaided non-minority educational institution contend that the intake of 25 percent children belonging to weaker sections and disadvantaged groups only in class I as provided for in Section 12(1)(c) would constitute violation of Article 19(1)(g)?," the majority judgment said.

The court further said that "Would such a provision not be saved by the principle of reasonable restriction imposed in the interest of the general public in Article 19(6) of the Constitution?"

However, the judgment said that the RTE Act, 2009 and in particular "Sections 12(1)(c) and 18(3) infringes the fundamental freedom guaranteed to unaided minority schools under Article 30(1) and consequently, applying the principle of severability, the said 2009 Act shall not apply" to unaided minority institutions.

Disagreeing with the majority view, Justice Radhakrishnan said, "Article 21A casts an obligation on the State to provide free and compulsory education to children of the age of 6 to 14 years and not on unaided non-minority and minority educational institutions."

Striking down the Section 12 (1)( C) in respect of the unaided non-minority and minority institutions, Justice Radhakrishnan said "Section 12(1)(c) is read down so far as unaided non- minority and minority educational institutions are concerned, holding that it can be given effect to only on the principles of voluntariness, autonomy and consensus and not on compulsion or threat of non-recognition or non-affiliation."

"Rights of children to free and compulsory education guaranteed under Article 21A and RTE Act can be enforced against the schools defined under Section 2(n) [recognized schools] of the Act, except unaided minority and non-minority schools not receiving any kind of aid or grants to meet their expenses from the appropriate governments or local authorities," the separate judgment said.

"No distinction or difference can be drawn between unaided minority and non-minority schools with regard to appropriation of quota by the State or its reservation policy under Section 12(1)(c) of the Act," Justice Radhakrishnan said disagreeing with the majority judgment.