Seal on school seats for poor Court allows sole exception

SAMANWAYA RAUTRAY

New Delhi, April 12: All schools, barring unaided minority institutions, will have to set aside 25 per cent of their seats for disadvantaged sections in the neighbourhood, the Supreme Court ruled today. The top court settled the question by upholding the relevant clause in the right to education law, saying that “advancement of education is a recognised head of charity” and rejecting a slew of petitions filed by several unaided schools. Since the act deals with children up to 14 years of age, the 25 per cent rule will cover Classes I to VIII. The 2:1 judgment, delivered by a three-judge bench headed by Chief Justice of India S.H. Kapadia, means the 25 per cent rule will also apply to aided minority institutions. “…We hold that the Right of Children to Free and Compulsory Education Act, 2009, is constitutionally valid,” the Chief Justice said, reading out the majority judgment. The court listed the categories that will come under the purview of the law: Schools established, owned or controlled by the appropriate government or a local authority Aided schools, including aided minority schools, receiving aid or grants from the appropriate government or the local authority to meet the whole or part of their expenses Unaided non-minority schools not receiving any kind of aid or grants from the appropriate government or the local authority to meet their expenses. However, the court clarified the clause would infringe on the fundamental freedom guaranteed to unaided minority schools under Article 30(1) of the Constitution and would not apply to such schools. The bench said the judgment would operate from today, which means the rule would kick in from the academic year 2012-13. However, any admissions given under the 25 per cent rule by unaided minority schools prior to the pronouncement of the judgment shall not be reopened, the bench clarified. The bench rejected the contention of the petitioner schools that the clause infringed on their right to practise or profess a trade, occupation or business under Article 19(1)(g). The rights under Article 19 can be subjected to reasonable restrictions, the court said. The right to education act cannot be said to be an unreasonable restriction on this right, the court said, adding that unaffordability cannot stand in way of access to education. The bench rejected the contention that the clause would impinge on the autonomy guaranteed to minority institutions under Article 30. The court voiced concern that the act applied only to day scholars and not to boarders. “There are boarding schools and orphanages in several parts of India. The act can only apply to day scholars. It cannot be extended to boarders. To put the matter beyond doubt, we recommend that appropriate guidelines be issued under Section 35 of the act clarifying the above position.” The bench urged states to use the act’s provisions to re-organise financial outflow at the micro level by weeding out non-performing, under-performing or non-compliant schools receiving grant-in-aid and ensuring that only institutes that fulfil norms and standards can continue. The court said this was needed to achieve the objective of the act to not only give free and compulsory education to the children in the neighbourhood school but also provide quality education. However, in his dissenting judgment, Justice K.S. Radhakrishnan said the state could not abdicate its obligation to give effect to socio-economic rights of citizens to non-state actors. While praising the intent of promoting social inclusiveness, he disagreed with the way the state was trying to achieve its means. Explaining the rationale of upholding 25 per cent seats for weaker and disadvantaged sections in private unaided schools and aided minority schools, Justices Kapadia and Swatanter Kumar, who upheld the act, lauded its intent. “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,” the court said.