The Right of Children to Free and Compulsory Education Act, 2009 enacted by the Parliament has received a mixed response. The Act is made with a view to further its obligation introduced by the Constitution (Eighty-sixth Amendment) Act, 2002 which alleviated the status of right to education from a directive principle to a Fundamental Right. Article 21A inserted by the 86th Amendment obligates the State to provide free and compulsory education to all children from the age of six to fourteen years. The Act introduces radical changes to the school system that currently exists. The Act mandates that all unaided private schools must admit 25% of the class strength from the weaker sections and disadvantaged groups and further, provide them with free and compulsory education for the ages 6 to 14.
The private unaided schools are however eligible for a reimbursement payment for the free education they provide from the State Government. Such reimbursement is however not calculated at the actual cost incurred by the school but according to the per-child-expenditure calculated by the State Government. The Act also prescribes minimum norms and standards to be followed by private unaided schools such as a maximum student teacher ration of 1:30, a compulsory playground, a library, a building, etc.
The Action Committee Unaided Recognized Private Schools, Rajasthan and other private schools of India challenged the constitutionality of this Act contending that it violated their right guaranteed under Article 19(1)(g) to practice their profession and carry out their trade and business without interference from the Government. Further, they alleged that the Government was by way of the Act shying away from the obligations under Article 21A and offloading it on to the private schools.
The Union of India was represented by Mr. Goolam Essaji Vahanvati, the Attorney General of India and Mrs. Indira Jaising, the Additional Solicitor General for India. The Union supported the validity of the Act stating that the Act does not violate the rights enshrined under Article 19(1)(g). The Union urged that the Fundamental Rights guaranteed by the Constitution could be abridged and that the State could impose obligations on non-state actors as previously done by the Minimum Wages Act, 1948 and the Equal Remuneration Act, 1976.
CLPR represented Azim Premji Foundation as an intervenor in the proceedings before the Supreme Court. APU supported the overall object of the Act but raised three main points before the Court. If the Bench upholds the validity of the Act, the accessible neighbourhood school providing inclusive school envisioned in the Kothari Commission Report way back in 1966 could become a reality, although admittedly at the expense of the private sector schools. The three points are:
1.The Issue of Under Inclusion
The Act presently only provides free and compulsory education to children only from the ages 6 to 14. Therefore, children below the age of 6 and over the age of 14 are excluded. CLPR on behalf of APU submitted that elementray education and secondary education atleast till 10th standard cannot be omitted by the Act as they form a critical part of basic education.
CLPR submitted reports of ASER to show that the drop out rates from school significantly decreases where children have undergone elementary education rather than directly receiving primary education.
2. The Omission of Government schools from adhering to the norms and standards
As per the current framework of the Act, only the private unaided schools are required to adhere to the minimum norms and standards prescribed by the Act. Adherence to these provisions are the basis for granting of the certificate of recognition by the Government.
The Government schools are excluded from giving effect to these provisions as they automatically receive recognition. There is hence no system or sanction in place to ensure that the Government schools also follow the core minimum norms and standards prescribed and mandated by the Act.
3. The exclusion of minority educational institutions
The Act does not exclude minority educational institutions from the purview of the Act. A Variety of such institutions represented by Mr. Tehmtan R. Andhyarujina contested the applicability of the Act claiming that it violated their rights under Article 30 of the Constitution.
There was much ambiguity regarding whether the Act applied to religious schools such as Madrasas and Vedic Pathshalas which did not disseminate secular education. The Ministry of Human Resources Development released a notification in the nature of an exemption that stated that the Act would not come in the way of religious educational institutions such as Madrasas and Vedic Pathshalas.
CLPR submitted that the Act needs to be made applicable to all schools in order to achieve its object of providing universal elementary education to all children. Further, the Supreme Court in the past has held that the right under Article 30 is not an absolute right and the Government can always interfere in the matters relating to educational quality.
CLPR also submitted to the Bench that the Act does not in any way dilute or take away the minority character of the institution but only regulates it in a manner so as to ensure that the right to education transcends into a reality.
The three judge bench hearing this matter comprises of Hon’ble Chief Justice S.H. Kapadia, Hon’ble Justice K.S. Panicker Radhakrishnan, and Hon’ble Justice Swatanter Kumar. The bench has now closed all arguments and has posted the matter for orders. The decision in this case seals the fate of the lakhs of private schools operating in the country. If the Bench upholds the validity of the Act, the accessible neighbourhood school providing inclusive school envisioned in the Kothari Commission Report way back in 1966 could become a reality, although admittedly at the expense of the private sector schools.