SC: Even pvt schools have to admit poor

RTE CONSTITUTIONALLY VALID: Only private unaided minority schools exempt,says court

Written by Krishnadas Rajagopal | New Delhi | Published: April 13, 2012 1:10:21 am

Being poor should not deny a child access to elementary education,the Supreme Court told unaided private schools today,cautioning them that their activity to administer educational institutions would stop being a fundamental right if they ventured beyond “charity” into commercialisation.

Describing the act of imparting education as charity,Chief Justice of India S H Kapadia and Justice Swatanter Kumar upheld the Right to Education Act 2009,saying it was meant to expel “unaffordability” of elementary education for children from economically weaker and disadvantaged sections of society.

It upheld the mandate of the Act to give free and compulsory education to children between the ages of 6 and 14.

The court,however,exempted minority-run unaided private institutions from under the purview of the Act.

The verdict will apply from the academic year 2012-13 to government or local authorities-run schools,aided minority schools receiving grants from government or local authorities,and unaided non-minority schools.

However,admissions given by unaided minority schools prior to the pronouncement of today’s judgment shall not be reopened,the court held.

The judgment,authored by Chief Justice Kapadia,dismissed complaints from unaided private schools that it was unconstitutional to compel them to reserve at least 25 per cent seats for poor children from their neighbourhood,and provide them with free and compulsory elementary education.

The schools had termed this an “unreasonable restriction” on their constitutional right to administer and run educational institutions under Article 19(1)(g).

To this,the court responded that the Act was not intended to be “institution-specific” but “child-specific”.

It reminded the schools that their right to “establish and administer an educational institution is a fundamental right,as long as the activity remains charitable. If an educational institution goes beyond ‘charity’ into commercialisation,it would not be entitled to protection of Article 19(1)(g)”.

Elaborating,the court observed that a child gets his “absolute” right of access to education under the newly coined Article 21A from his fundamental right to live with dignity.

“Right to live covers access to education. But unaffordability defeats that access. It defeats the State’s endeavour to provide free and compulsory education for all children of the specified age,” Chief Justice Kapadia observed.

“The 2009 Act seeks to remove all those barriers including financial and psychological barriers which a child belonging to the weaker section and disadvantaged group has to face while seeking admission… It 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 Chief Justice said.

The court defined the terms ‘free’ and ‘compulsory’ in the Act.

“The word ‘Free’… stands for removal by the State of any financial barrier that prevents a child from completing eight years of schooling. The word ‘Compulsory’… stands for compulsion on the State and the parental duty to send children to school,” the judgment said.

The two judges differed with a dissenting judgment given by Justice K S Radhakrishnan,who said that the Act should not apply to private unaided institutions,whether minority or majority run.

Instead,the CJI said imposing 25 per cent reservations may encroach into the fundamental right of the minorities under Article 30 (1) to safeguard their separate identity by exclusive administration of their unaided schools.

“…Reservations of 25 per cent in… unaided minority schools will result in changing the character of the schools if 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,” the court held.

The court asked the government to “weed out” non-performing schools so that there may be more funds to feed the objective of the 2009 Act.

Noting that the Act only covers day scholars,the court also wanted the government to clarify whether the 25 per cent reservation would apply to boarders.

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