The writ petition of the society for Private Unaided Schools of Rajasthan challenging the constitutional validity of the Right to Free and Compulsory Education Act, 2009 (aka RTE Act); Article 15(5) of the Constitution inserted by the Constitution (Ninety-Third Amendment) Act, 2005; and Article 21-A inserted by the Constitution (Eighty-Sixth Amendment) Act, 2002, was admitted for hearing by the Supreme Court on September 5 and listed as Writ Petition (C) No.95 of 2010.
The prayers (requests) made to the justices of the apex court in the writ petition are:
(A) Declare the right of Children to Free and Compulsory Education Act, 2009 unconstitutional as being ultra vires the Constitution and/or strike down ss. 3, 4, 6, 11-15, 17, 23(i), 24 (i) (d) and 29-30 of the Act.
Background. S. 3 of the RTE Act entitles every child in the age group six-14 to avail free and compulsory education in a neighbourhood school till completion of elementary education (class VIII). Under s.2 (i) (iv) even private unaided schools “not receiving any kind of aids of grants… from the appropriate Government or the local authority” are included in the definition of ‘school’.
The main grievance of the petitioner is that under s. 12 (1) (c) private independent/unaided schools “shall admit in class I to the extent of at least twenty-five percent of the strength of that class children belonging to weaker section and disadvantaged group (sic) in the neighbourhood and provide free and compulsory elementary education till its completion”. The petitioner’s contention is that s. 12(1) (c) contravenes the Supreme Court’s 11-judge verdict in the T.M.A Pai Foundation vs. Union of India & Ors (2002) (8 SCC 481), which ruled that under Article 19 (1) (g) of the Constitution, all citizens have a fundamental right to carry on the “occupation” of education provision and in particular to (transparently) admit students of their choice (on merit) and to levy reasonable tuition fees to generate surpluses for the growth and development of their education institutions. Moreover the right of private unaided education institutions to admit students of their choice was reaffirmed and reiterated by the apex court in P.A.Inamdar Case (2005) (6 SCC 537), argues the petitioner.
(b) Declare Article 15(5) inserted by the Constitution (Ninety-Third Amendment) Act, 2005 invalid and “violative of the basic structure of the Constituiton”.
Background. In 2005 Arjun Singh, the former Union HRD minister in the Congress-led UPA-I government, reportedly in an effort to gain personal political mileage, revived a cold-storaged proposal of the Mandal Commission (1980) to legislate additional 27 percent reservation (i.e in addition to the reservation of 22.5 percent in favour of scheduled castes and scheduled tribes) in all Central government institutions of higher education for other backward castes/classes (OBCs). This proposal was unanimously approved by Parliament in December 2005 which under the Constitution (Ninety-Third) Amendment Act, 2005 enacted a new Article 15(5) which invested the State (government) with the right to override the provisions of Article 19(1) (g) — and the Supreme Court’s judgement in T.M.A Pai Foundation vs. Union of India — while mandating special provision by law relating to the admission of OBC, SC and ST students in all education institutions, “including private educational institutions whether aided or unaided by the State, other than minority educational institutions”.
This constitutional amendment was challenged in Ashok Kumar Thakur’s Case (2008) (6 SCC 1). Upholding the 93rd Amendment vis-à-vis government and private aided institutions (but recommending pro rata capacity expansion to accommodate merit students), the court withheld judge-ment on the applicability of the 93rd Amendment to private unaided institutions for want of challenge. Now in the instant case, the petitioner has challenged the constitutional validity of the 93rd Amendment and Article 15(5).
(c) Declare Article 21-A inserted following the enactment of the Constitution (Eighty-Sixth Amendment) Act, 2002 constitutionally invalid.
Background. Article 21-A mandates the State to provide free and compulsory education to all children between ages six-14. The 86th Amendment has been challenged because it enables the RTE Act and/or its impugned provisions as set out in prayer (a) above which became effective from April 1, 2010.