SC refers law on free edu to Constitution Bench
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Last Updated: Monday, September 06, 2010, 18:34
New Delhi: The law providing free and compulsory education to children has come under judicial scrutiny with the Supreme Court today deciding that its Constitutional validity be examined by a five-judge bench.

The apex court noted that since the amendment to the Constitution which led to the enactment of the Right to Education Act has been challenged, the matter would be placed before a larger bench to decide its legal validity.

"The matter has to be placed before a five-judge Constitution bench for directions," a three-judge bench comprising Chief Justice S H Kapadia and Justices K S Radhakrishnan and Swatanter Kumar said.

It said, "Since the challenge involved relates to the Constitutional validity of Article 15 (5) and also to Article 21(A), we are referring the matter to a larger bench of five judges."

The court was hearing a batch of petitions which claimed that the Act violated the rights of private educational institutions under Article 19(1)(g) which provided maximum autonomy to private managements to run their institutions without governmental interference.

The Act which made free and compulsory education a fundamental right for children between 6-14 years, also mandated that private educational institutions have to reserve 25 per cent of the seats for children from poor families.

Article 21(A) states that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.

Article 15 (5) of the Constitution enables the state to make provisions for the advancement of education for the weaker sections of the society relating to admission in educational institutions.

Solicitor General Gopal Subramanium submitted that not only the amendment to the Article 21 has been challenged but it is also a matter of public and Constitutional importance which needs to be addressed by a larger bench.

The petitions contended that the RTE Act, 2009, is "unconstitutional" and "violative" of fundamental rights.

The petitioners cited the 11-judge Constitution bench ruling of the Supreme Court in the TMA Pai case wherein it was ruled that maximum autonomy should be provided to private educational institutions.

According to the petitioners, Section 3 of the Act imposed an absolute mandate on all schools, including private unaided and minority institutions, to admit without any choice each and every child whosoever comes to take admission in the schools in the neighbourhood.

The provision prohibits any type of screening which is necessary for the procedure of admission, the petitioners said.

The Act was silent with regard to the fate of the children between the age of 3-6 years which was in fact a crucial period for a child's education to commence, they said.

Further, the law did not permit the educational institutions to verify the age of the children coming for admission, the petitioner said, adding that the power to expel students from the institution for unruly behaviour has been taken by the new law.

The petitioners have challenged the provision in the law which makes it mandatory to promote all students till Class 8.


First Published: Monday, September 06, 2010, 18:34

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