SC refers law on free edu to Constitution Bench
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
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,
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
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
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
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.
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