On April 12, 2012, the Supreme Court of India (“Supreme Court”) had upheld the
constitutional validity of the provisions of the Right of Children to Free and
Compulsory Education Act, 2010 ("RTE
Act"). The judgement was pronounced by a three-judge bench comprising
of Justice S.H. Kapadia (CJI), Justice Swatanter Kumar, who delivered the
majority judgment and Justice K.S. Panicker Radhakrishnan, who delivered the
dissenting judgment.
Subsequently, review petitions
were filed by the Society for Unaided Private Schools of Rajasthan; the
Independent Schools Federation of India; the Catholic Bishops Conference of
India and two other institutions seeking review of the aforementioned judgment
dated April 12, 2012. However, the constitution bench of the Supreme Court has dismissed
the review
petitions on September 18, 2012 stating that they were liable to be
dismissed both on the grounds of delay in filing the review petition as well as
on merits.
In this post, we have briefly
summarised the RTE judgment and analyse the impact of the order dated September
18, 2012.
Background
The RTE Act was notified by the
Government of India in the Official Gazette on April 1, 2010. A writ petition
was filed before the Supreme Court by the Society for Unaided Private Schools
of Rajasthan ("Petitioner")
against the Union Of India ("Respondents")
challenging the constitutional validity of various provisions including
Sections 3, 12(1)(c) and 12(2) of the RTE Act. The Petitioners also challenged
other provisions which, in their view, interfere with the management,
administration and functioning of educational institutions.
Arguments raised by the Petitioners
The Petitioners argued that
Article 21A of the Constitution casts an obligation on the state alone to
provide free and compulsory education to children in the age group of 6 to 14
years. It was also argued that the constitutional provision never intended to
cast an obligation on private educational institutions, otherwise, the same
would have been worded like Article 15(5) of the Constitution.
It was also argued by the
Petitioners that where no constitutional obligations are case on private
educational institutions, the same cannot be imposed by way of legislation. The
Petitioners argued that Article 21A is not meant to deprive private educational
institutions of their core rights under various constitutional provisions such
as Articles 19(1)(g), 26(a), 29(1) and 30(1). It was argued that the core
individual rights such as those enshrined under Article 19 of the Constitution
must take precedence over socio-economic rights like the right to education.
Some of the petitioners who were
minority educational institutions argued that the Articles 25 – 30 of the
Constitution preserve the rights of linguistic and religious minorities. It was
submitted on behalf of minority educational institutions that Section 12(1)(b)
and 12(1)(c) of the RTE Act completely take away the rights guaranteed to
minority communities. It was also argued that the mere fact that some of the
minority institutions have been given grant or aid cannot become a ground to take
away the rights guaranteed to them under Article 30(1) of the Constitution.
Arguments Raised by the Respondents
The Attorney General argued that
as Article 21A of the Constitution is a socio-economic right, it must get
priority over other rights enshrined in the Constitution as it does not operate
merely as a limitation on powers of the state but requires affirmative action
on the part of the state to protect and fulfil the rights guaranteed to
children of the ages 6 to 14 years for free and compulsory education.
It was also argued on behalf of
the state that Article 21A must be considered as a stand alone provision and
not subjected to Article 19(1)(g) and Article 30(1) of the Constitution.
Article 19(1)(g) and Article 30(1) dealt with the subject of right to carry on
occupation of establishing and administering educational institutions, while
Article 21A deals exclusively with a child's right to primary education. It was
stated that Article 21A has no saving clause, which indicates that it is meant
to be a complete, standalone clause on the subject matter of the right to
education and is intended to exclude the application of Article 19(1)(g) and
Article 30(1).
It was also pleaded on behalf of
one of the interveners that Article 21A calls for horizontal application of
sanction on state actors so as to give effect to the fundamental rights
guaranteed to the people.
Further, it was also contended
that Articles 21A and 15(3) provide the State with constitutional instruments
to realize the object of the fundamental right to free and compulsory education
even through non-state actors such as private schools.
The Judgement
The majority of the bench
considered the scope of Article 21A in the context of the RTE Act. The majority
held that Article 21A casts and obligation on the state to provide for free and
compulsory education for children between 6 – 14 year. The manner in which such
obligation is to be discharged can be determined by law, which was the object
behind passing the RTE Act. The majority bench held that the state may provide
for free and compulsory education through government schools, aided or unaided
schools.
The majority of the bench distinguished
the decisions of the Supreme Court in T.M.A.
Pai Foundation v. State of Karnataka
and P.A. Inamdar v. State of Maharashtra from the case
before it on the ground that the principles set down in the aforementioned cases
were applied in the context of professional/ higher education where merit and
excellence have to be given due weightage. The majority was of the view that the
principles laid down in the previous cases cannot apply to a child applying for
primary elementary education. The majority of the bench came to the conclusion
that the provisions of the RTE Act are constitutionally valid and are
applicable to
(a) a school established, owned or controlled by the
appropriate Government or a
local authority;
(b) an aided school including aided minority school(s) receiving aid
or grants to meet whole or part of its expenses from the appropriate Government
or the local authority;
(c) a school belonging to specified category under the RTE Act; and
(d) an unaided non-minority school not receiving any kind of aid or
grants to meet its expenses from the appropriate Government or the local
authority.
However, the Court also ruled
that the RTE Act shall not apply to unaided minority schools as Sections 12(1)(c)
and 18(3) in particular infringe upon the rights of linguistic and religions
minorities under Article 30(1).
In his dissenting judgment,
Justice Radhakrishnan was of the view that Article 21A of the Constitution
casts an obligation on the State and not on private non-state actors to provide
free and compulsory education to children of the age of six to fourteen years. Justice
Radhakrishnan also stated that establishing and running an educational
institution and "investing his own capital" would fall under the
category of a fundamental right under Article 19 (1)(g) of the Constitution.
This right can be curtailed in the interest of the general public by imposing
reasonable restrictions. However, it was stated that the principle laid down in
previous judgments of the Supreme Court i.e. T.M.A. Pai Foundation v. State
of Karnataka and P.A. Inamdar v. State of Maharashtra, wherein it was
held that citizens do not have any constitutional obligation to share seats
with the State or adhere to a fee structure determined by the State; would also
apply to the RTE Act. Further, Justice Radhakrishnan held that no distinction
can be drawn between unaided minority and non-minority schools with regard to
appropriation of quota by the State.
Justice Radhakrishnan came to the
conclusion that so far as unaided educational institutions are
concerned the obligation cast under Section 12(1)(c) of the RTE Act is only
directory. He stated that it is open to the private unaided educational
institutions, both minority and non-minority, at their volition to admit
children who belong to the weaker sections and disadvantaged group in the
neighbourhood in their educational institutions as well as in pre-schools.
CONCLUSION
Article 137 of the Constitution
confers power on the Supreme Court to review any judgment pronounced or order
made by it, subject to the provisions of any law made by the parliament or
rules made by the Supreme Court in pursuance of Article 145 of the
Constitution. In exercise of the power
under Article 145, the Supreme Court has framed the Supreme Court Rules, 1966.
In accordance with Rule 1 of
Order XL of the Supreme Court Rules, 1966, the Supreme Court may review its
order or judgement, but no application for review would be entertained in a
civil proceeding except on the ground mentioned in Order XLVII, rule I of the
Code of Civil Procedure, and in a criminal proceeding except on the ground of
an error apparent on the face of the record. Such a review petition must be
filed within 30 days from the date of the judgment or order sought to be
reviewed.
Further, where an application for
review of any judgment and order has been made and disposed of, no further
application for review shall be entertained in the same matter. Having said
that, in the case of Rupa Ashok Hurrah
v. Ashok Hurrah[1],
the Supreme Court held that even after dismissal of a review petition under
Article 137 of the Constitution, Supreme Court, may entertain a curative
petition and reconsider its judgment/order, in exercise of its inherent powers
in order to prevent abuse of its process, to cure gross miscarriage of justice.[2] In
the aforementioned case, the Supreme Court laid down other conditions required
to be fulfilled in order to file and entertain such a petition. It is
interesting to note that last year the Supreme Court had dismissed the curative
petitions filed by the Central Bureau of Investigation (“CBI”) in the Bhopal Gas tragedy case on the ground that the CBI had
been unable to satisfy the court that any grounds as mentioned in the Hurrah case had been made out.[3]
It is evident from the above that
with the order dated September 18, 2012, there can be no further review of the
RTE judgment unless the Supreme Court is satisfied that there has been gross
miscarriage of justice or it is necessary to review the order to prevent abuse
of process. As a result, all aided and unaided schools other than unaided
minority schools would be required to give effect to the provisions of the RTE
Act from the academic year 2012 – 13. This would inter alia mean that schools would be required to give admission to
students from economically weaker sections to the minimum extent of 25% in
classes I to VIII and in pre-primary classes, where applicable.
No comments:
Post a Comment