New Delhi: With admission season underway, the Supreme Court on Friday agreed to give early hearing to
petitions challenging the validity of the provision of Right
to Free and Compulsory Education Act which mandated 25 percent of reserved seats for economically backward sections in
private unaided schools.
A Bench headed by Chief Justice SH Kapadia agreed to
give hearing on a bunch of petitions on a priority basis after
taking note of the affidavit of the government which said the
issue did not involve Article 15(5) of the Constitution.
The court said a three-judge bench can hear the matter if
the issue of of basic principle of the Constituion was not
The Bench was told that early adjudication of the matter
was must in view of the ongoing admission process in schools
which have to be completed by April.
The Bench hinted that the matter could be heard by the
end of this month or in February after it concludes hearing on
some of the part-heard matters.
The main petitioner Society for Un-aided Private
Schools, Rajasthan, and a host of associations representing
various private schools have questioned the validity of the
Act on the ground that it impinged on their rights to run the
The Bench, during the last hearing, had said it would
not like the matter to be referred to the Constitution Bench.
The apex court had 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 petitioners had contended that the issues involved
in the Act relate to Article 15 (5) and to Article 21(A) of
The court was hearing a batch of petitions which
claimed 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) says the state shall provide free and
compulsory education to all children of the age of six to
fourteen years in such a manner as the state may, by law,
Article 15 (5) of the Constitution enables the state to
make provisions for advancement of education for weaker
sections of society relating to admission in educational
The petitions contended that the RTE Act, 2009, is
"unconstitutional" and "violative" of fundamental rights.
The petitioners cited the Supreme Court`s 11-judge
Constitution bench ruling in 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 on 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 the power to expel
students from the institution for unruly behaviour has been
taken away by the new law.
The petitioners have challenged the provision in the law
which makes it mandatory to promote all students till Class 8.