The government cannot dump its constitutional obligation to provide free and compulsory elementary education to children on non-state actors like private schools,whether minority or non-minority run,Justice K S Radhakrishnan observed in his dissenting judgment.
Article 21A (right to access to education) 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, the judge wrote.
Legislature cannot,under the guise of public interest,arbitrarily cast burden or responsibility on private citizens running a private school,totally unaided, the judge further added.
The judge said though private unaided schools are performing a state function by imparting education and should respect child rights,they should not be expected to surrender their constitutionally guaranteed rights to freely administer their institutions.
The state 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 states dictate, Justice Radhakrishnan said.
The judge invoked the Constitution Bench ruling in the TMA Pai and Inamadar cases prohibiting unreasonable restrictions on private unaided institutions.
Significantly,Justice Radhakrishnans conclusion that madrasas,vedic pathshalas,etc,which predominantly provide religious instructions and do not provide for secular education stand outside the purview of the Act is not objected to in the majority verdict written by Chief Justice of India S H Kapadia.
The judge also referred to the financial burden on the schools compelled to admit 25 per cent of the students on the fee structure determined by the state,saying this was nothing but an invasion as well as appropriation of the rights guaranteed to them.
Justice Radhakrishnan further said Section 12(1)(c) (which deals with the mandatory 25 per cent reservation of seats) was enacted not only to offload or outsource the constitutional obligation of the state to the private unaided educational institutions,but also to burden them with duties which they do not constitutionally owe to children included in Section 2(d) or (e) of the Act or to their parents.