2012 (4) TMI 648 - SC - Indian Laws

Applicability of the Right of Children to Free and Compulsory Education Act, 2009 to the unaided non-minority schools - Held that - So far as unaided educational institutions both minority and non-minority are concerned the obligation cast under Section 12(1)(c) is only directory and the said provision is accordingly read down holding 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. 1. Article 21A casts an obligation on the State to provide free and compulsory education to children of the age of 6 to 14 years and not on unaided non-minority and minority educational institutions. 2. Rights of children to free and compulsory education guaranteed under Article 21A and RTE Act can be enforced against the schools defined under Section 2(n) of the Act, except unaided minority and non-minority schools not receiving any kind of aid or grants to meet their expenses from the appropriate governments or local authorities. 3. Section 12(1)(c) is read down so far as unaided nonminority and minority educational institutions are concerned, holding that it can be given effect to only on the principles of voluntariness, autonomy and consensus and not on compulsion or threat of nonrecognition or non-affiliation. 4. No distinction or difference can be drawn between unaided minority and non-minority schools with regard to appropriation of quota by the State or its reservation policy under Section 12(1)(c) of the Act. Such an appropriation of seats can also not be held to be a regulatory measure in the interest of the minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution. 5. The Appropriate Government and local authority have to establish neighbourhood schools as provided in Section 6 read with Sections 8 and 9, within the time limit prescribed in the Statute. 6. Duty imposed on parents or guardians under Section 10 is directory in nature and it is open to them to admit their children in the schools of their choice, not invariably in the neighbourhood schools, subject to availability of seats and meeting their own expenses. 7. Sections 4, 10, 14, 15 and 16 are held to be directory in their content and application. The concerned authorities shall exercise such powers in consonance with the directions/guidelines laid down by the Central Government in that behalf. 8. The provisions of Section 21 of the Act, as provided, would not be applicable to the schools covered under sub-Section (iv) of clause (n) of Section 2. They shall also not be applicable to minority institutions, whether aided or unaided. 9. In exercise of the powers conferred upon the appropriate Government under Section 38 of the RTE Act, the Government shall frame rules for carrying out the purposes of this Act and in particular, the matters stated under sub-Section (2) of Section 38 of the RTE Act. 10. The directions, guidelines and rules shall be framed by the Central Government, appropriate Government and/or such other competent authority under the provisions of the RTE Act, as expeditiously as possible and, in any case, not later than six months from the date of pronouncement of this judgment. 11. All the State Governments which have not constituted the State Advisory Council in terms of Section 34 of the RTE Act shall so constitute the Council within three months from today. The Council so constituted shall undertake its requisite functions in accordance with the provisions of Section 34 of the Act and advise the Government in terms of clauses (6), (7) and (8) of this order immediately thereafter. 12. Central Government and State Governments may set up a proper Regulatory Authority for supervision and effective functioning of the Act and its implementation. 13. Madrasas, Vedic Pathshalas etc. which predominantly provide religious instructions and do not provide for secular education stand outside the purview of the Act.

Issues Involved:
1. Constitutional validity of the Right of Children to Free and Compulsory Education Act, 2009 (the 2009 Act).
2. Applicability of the 2009 Act to unaided non-minority schools.
3. Applicability of the 2009 Act to unaided minority schools.
4. Obligations of unaided private educational institutions under the 2009 Act.
5. Obligations of aided minority and non-minority educational institutions under the 2009 Act.
6. Validity of various provisions of the 2009 Act concerning private educational institutions.
7. Implementation and operational aspects of the 2009 Act.

Issue-wise Detailed Analysis:

1. Constitutional Validity of the 2009 Act:
The core issue concerns the constitutional validity of the 2009 Act. The Act was enacted to make the Right of Children to Free and Compulsory Education justiciable, ensuring that each child has access to a neighborhood school. The Act aims to provide free and compulsory education to all children aged 6 to 14 years, as mandated by Article 21A of the Constitution. The Act received presidential assent on 26.8.2009 and came into force on 1.4.2010. It guarantees the right to free and compulsory education and mandates quality education by providing necessary infrastructure and compliance with specified norms and standards.

2. Applicability of the 2009 Act to Unaided Non-Minority Schools:
The judgment explores whether the 2009 Act can impose obligations on unaided non-minority schools. Article 21A obligates the State to provide free and compulsory education, but the manner of discharging this obligation is left to the State. The State may decide to fulfill this obligation through its own schools, government-aided schools, or unaided private schools. The court held that imposing a 25% reservation for children from weaker sections and disadvantaged groups in unaided non-minority schools under Section 12(1)(c) is a reasonable restriction under Article 19(6) and does not transgress any constitutional limitations.

3. Applicability of the 2009 Act to Unaided Minority Schools:
The judgment distinguishes between unaided minority and non-minority schools concerning the applicability of the 2009 Act. Article 30(1) grants minorities the right to establish and administer educational institutions of their choice. The court held that imposing a 25% reservation on unaided minority schools under Section 12(1)(c) violates their rights under Article 30(1). The Act, therefore, does not apply to unaided minority schools.

4. Obligations of Unaided Private Educational Institutions:
Unaided private educational institutions, both minority and non-minority, are not constitutionally obligated to provide free and compulsory education under Article 21A. The court held that Section 12(1)(c) could be applied to unaided non-minority schools as a reasonable restriction under Article 19(6), but it cannot be imposed on unaided minority schools. The obligation on unaided non-minority schools is justified as a measure to ensure social inclusiveness and equitable access to education.

5. Obligations of Aided Minority and Non-Minority Educational Institutions:
Aided educational institutions, both minority and non-minority, are required to provide free and compulsory education to a proportion of children based on the aid received, subject to a minimum of 25%. The court upheld Section 12(1)(b) as constitutionally valid, stating that once aid is granted, the State can impose reasonable conditions, including admitting students from weaker sections and disadvantaged groups.

6. Validity of Various Provisions of the 2009 Act Concerning Private Educational Institutions:
The court examined the validity of several provisions of the Act, including Sections 3, 6, 7, 8, 9, 10, 13, 14, 15, 16, 17, 18, 19, 23, 24, 29, and 30. It held that these provisions are generally valid and applicable to aided schools. However, the provisions are directory for unaided private educational institutions, which must comply with general laws, including those against profiteering, capitation fees, and maladministration.

7. Implementation and Operational Aspects of the 2009 Act:
The court emphasized the need for a proper regulatory mechanism to ensure the effective implementation of the Act. It suggested setting up a Regulatory/Adjudicatory Authority to address issues related to financial viability, expulsion, and other grievances. The court also highlighted the necessity of establishing neighborhood schools and ensuring quality education for all children.

Conclusion:
1. The 2009 Act is constitutionally valid and applies to government schools, aided schools, specified category schools, and unaided non-minority schools.
2. Sections 12(1)(c) and 18(3) infringe the fundamental freedom of unaided minority schools under Article 30(1) and do not apply to such schools.
3. The judgment will operate from the academic year 2012-13, and admissions already granted will not be disturbed.
4. The court disposed of the writ petitions with no order as to costs.

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