Dislaimer

The postings on this blog have been prepared by Sarthak Advocates & Solicitors. Unless otherwise indicated, the blog posts are intended to be informative summaries or the opinions of the author concerned. These postings should not be considered as substitutes for considered legal advice. If you have any comments, suggestions or clarifications, please do get in touch with us at knowledge@sarthaklaw.com.

Thursday, October 4, 2012

SUPREME COURT REJECTS REVIEW PETITION IN RIGHT TO EDUCATION CASE


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.


[1] [2002] 4 SCC 388.
[2] Ibid.
[3] Central Bureau of Investigation and others v. Keshub Mahindra, MANU/SC/0589/2011

No comments:

Post a Comment