Right of Children to Free and Compulsory Education Act

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    Right of Children to Free and Compulsory Education Act, 2009

    By Simranpreet Singh Oberoi (12M89)

    The Society for Un-aided Private Schools of Rajasthan (Petitioner) had filed a writ petition against

    the Union of India (Respondents) expressing their concern regarding the non-applicability of the

    Right of Children to Free and Compulsory Education Act,2009 to the unaided non-minority schools.

    The core issue concerns the constitutional validity of the Sections 3, 12(1)(c) and 12(2) of the RTE

    Act.

    Whether Section 12(1) (c) is a reasonable restriction on the non-minoritys right to establish and

    administer an unaided educational institution under Article 19(6) and does Section 12(1) (c)

    actually impede the right of an unaided institution/individual to establish and administer an

    institution. These are some of the questions court has set out to answer.

    The 2009 Act has been enacted keeping in mind the crucial role of Universal Elementary Education

    for strengthening the social fabric of democracy through provision of equal opportunities to all. The

    said Act provides for right (entitlement) of children to free and compulsory admission, attendance

    and completion of elementary education in a neighbourhood school.

    The word "Free" in the long title to the 2009 Act stands for removal by the State of any financial

    barrier that prevents a child from completing 8 years of schooling. The word "Compulsory" in that

    title stands for compulsion on the State and the parental duty to send children to school. To protect

    and give effect to this right of the child to education as enshrined in Article 21 and Article 21A of the

    Constitution, the Parliament has enacted the 2009 Act.

    Any school imparting elementary education, even if it is an unaided school, not receiving any kind

    of aid or grant to meet its expenses from the appropriate government or the local authority, is

    obliged to admit in Class I, to the extent of at least 25% of the strength of that class, children

    belonging to weaker section and disadvantaged group in the neighbourhood and provide free and

    compulsory elementary education till its completion.

    The Verdict given by a 3 judge bench was in favour of the petitioners though it was not unanimous.

    MAJORITY STANCE

    Article 19(1) (g) circumscribed by Article 19(6) since Education is considered as charity

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    Article 21A enacted to give effect to article 45. The powers are moved to the state. The actmakes this a law, and shifts to be a more child-centric rather than institution centric.

    Affirmative burden on all stakeholders in our civil society which would include schools asparents/guardians to ensure every child has the right to education.

    DISSENT STANCE

    Article 45 of the constitution claims that the state shall endeavor to provide for free andcompulsory education and this cant be imposed on the private schools.

    Violation of Article 19 (1) (g) The right to practice any profession, or to carry anyoccupation , trade or business. Citizens do not have a constitutional obligation to start aneducational institution. Therefore, from TMA Pai and PA Inamadar case, they do not have a

    constitutional obligation to share seats with the state or adhere to a fee structure.

    No distinction can be drawn between unaided minority and non-minority schools withregard to appropriation of quota by the State

    The court concluded the 2009 Act to be constitutionally valid and shall apply only to the schools

    established, owned and controlled by the appropriate government or a local authority; or an aided

    school receiving aid or grants or an unaided non minority school not receiving any kind of aid to

    meet its expenses from the government.

    However, since this Act and Section 12 (1)(c) and 18 (3) infringes the fundamental freedom

    guaranteed to unaided minority schools. The 25% rule can only be on principles of voluntariness ,

    autonomy and consensus and not on compulsion or threat of non -recognition or non

    affiliation.

    I think while considering the precedent cases in higher education, not much attention was given to

    the fact that primary education and secondary are two different and starting either is altogether a

    different ball game. As long as the state is ready to reimburse the amount demanded by the unaided

    private players there is no reason why they shouldnt continue with this.

    To the point of taking the private unaided schools out of the purview and compulsion of giving

    away seats, I dont agree because with time this will become a part of their core activity and would

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    start yielding results. This is not very different from the CSR mandate and there are several

    examples where the school has implemented RTE successfully by partnering with parents and

    raising funds from them. And considering the social nature of education, most of the schools run on

    a surplus cash flow can afford to include the 25% reservation. For those already in business and

    believe in Gandhis idea of trusteeship, dont think that its a negative compulsion to schools to give

    away 25% seats. This is clear example of raising the community along with you and another point

    which would help here would be the fact that education should be allowed to be a for profit

    business which is currently not the case.

    Although, they do mention something about quality, but the current issue in Indias primary

    education is not really accessibility but the increase in learning outcomes. Similarly, a separate

    provision needs to be having given to the teacher training and their professional development. No

    real measure looked at improving their training standards or raising accountability. They havemanaged to make their points but a lot more could have been done by giving more attention the

    real cause of the lack of learning development. The focus has shifted away from quality and too

    much attention is paid to issues such as infrastructure.

    There is no reason for why it starts only for class 1. RTE could be extended to early childhood care

    and education. We need to include more incentives for the government schools to become better

    and for private schools to accept these children.