New Delhi: A Supreme Court judgment holding that the RTE Act guaranteeing free education to children from socially and economically-backward sections is not applicable to minority-run institutions is not finding many takers in the legal fraternity who feel it is flawed and would deprive hundreds of thousands of children from vulnerable sections of quality education.
Though a few swear to the minorities the right to administer their institutions without any interference by the state as the law stands today, others feel that no exceptions could be made for implementing rights-based laws like the right to free education. Another view is that the state should not interfere with education at all.
The judgment by a five-judge constitution bench has come in for critical appraisal on the grounds that the rights conferred on minorities under the Constitution`s article 30 (1) to establish and administer their institutions could not be taken recourse to restrict the application of the progressive law that confers the right to education on all children.
Besides this, some legal experts feel that an 11-judge-bench verdict in the 2002 T.M.A. Pai Foundation case needs to be revisited as it was coming in the way of children being admitted to these schools and that article 30(1) could not be read in absolute terms, when even fundamental rights are subject to reasonable restrictions.
In this case, the apex court granted absolute immunity to private, unaided educational institutions, including those of minorities, in admissions, leaving them to decide the manner in which students should be taken in and barred any interference by the state.
Legal experts, however, said that the rights that minorities get under article 30(1) could not be elevated above the fundamental rights, noting there are regions in West Bengal and other eastern and northeastern states where bulk of the schools are run by the minorities.
"If it is an aided minority institution, then there is no reason why the RTE Act should not apply to it," senior counsel Colin Gonsalves told IANS.
"I think a law of this nature should be applied without exception," he added.
Describing the judgment as "fundamentally wrong", Gonsalves said: "The original mistake made by the Supreme Court is in the T.M.A. Pai case where it privatized education. This was a huge mistake and children of India are suffering on account of this decision.
"It is because of T.M.A.Pai judgment that we find the Supreme Court holding today that progressive statutes like the Right to Education Act are not applicable to particular schools. It is fundamentally wrong," Gonsalves maintained.
Senior counsel Ravindra Shrivastava said that "the judgment goes by the constitution because of constitutional provisions."
"Personally speaking, with regard to the proliferation of commercial education institutes and their impact, I think that the RTE Act should apply across all institutions irrespective of the nature of their ownership," Shrivastava told IANS, agreeing that on "certain aspects, the T.M.A. Pai judgment needs to be revisited".
Senior counsel C.A. Sundaram, however, said he did not believe that there should be any interference with education and "the principle laid down in T.M.A. Pai case respecting the autonomy of unaided private institutions should continue to be respected".
Sundram said that once the RTE Act has been upheld, its being applicable to private institutions is a natural corollary.
However, senior counsel Jaspal Singh was of the view that granting protection to minority institutions was a laudable objective and should not be interfered with in the name of enforcing the right to education.
"The laudable object of the constitutional provision is to protect the minorities and provide avenues of education to them. This is a special provision under which minorities are opening institutions, they are open to all. Nearly 80 percent students in Sikh institutions are from other communities," he noted.