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Legal test for Right to Education law by Nikhil Kanekal & Prashant K Nanda

The Supreme Court is set to deliver a decision on a constitutional challenge by private schools

Private schools around the country are waiting for the Supreme Court to issue a judgement in a constitutional challenge to a 15-month-old law that enforces free and compulsory education as a fundamental right, after hearing was concluded last week.

The government, through the Right of Children to Free and Compulsory Education Act, 2009, or RTE, had asked private schools to admit at least a quarter of their students from poor families living in their vicinity. The Act envisages that all poor children aged 6-14 years be given free and compulsory education.

Schools are, however, worried their autonomy is being taken away. Several schools filed a writ petition through top constitutional lawyers in the Supreme Court, pleading that they couldn’t remain “centres of excellence” if the government interfered in their way of functioning.

The court has observed that some parts of the law might amount to “nationalization” of private, unaided institutions and in some cases, minority ones too.

Lawyer Harish Salve told the apex court two weeks ago this was “probably the most important case that this court has heard in the last decade”. He argued on behalf of Canadian International School, a Bangalore-based school set up primarily for Canadian expatriates.

“This is a very highly controversial legislation, as it is with any social engineering law,” Salve said. “I am challenging a fundamental notion under this law—the notion that inclusiveness can be statutorily enforced.”

He contended that the government’s initiative could backfire, and asked the government’s lawyers to produce sociological evidence of such methods working to form a better society. He also called RTE “a political statement”.

Sushil Salwan, a member of the managing committee of Salwan Public School in Gurgaon, said the Act took away the autonomy of private schools. “Efforts should be on improving the quality of government schools to the level of private schools,” he said. “They don’t have toilets, teachers and basic infrastructure. No one is questioning the need to educate all children.”

There is also concern that RTE could make private schools accept more than a quarter of their students from poor households, as the law says schools should accept “at least” 25% students from weaker sections.

Attorney general Goolam E. Vahanvati, appearing in court on behalf of the human resource development (HRD) ministry, tried to calm these fears.

“This Act is about inclusiveness,” he said. “In a sense, Article 21A is about social justice, not political justice,” he explained, referring to the recently inserted fundamental RTE, which is supplementary to the Right to Life under Article 21 of the constitution.

Vahanvati didn’t deny that the government could leverage resources to provide education to poor children through more government schools. Instead, he argued that the government wanted to put poor kids among the rich to fuse bonds between children at tender, impressionable ages.

“This is not the passing of a social obligation. It is not the recognition of a failure to provide quality education,” he said.

In response to the schools’ concern that they were being forced to lower their standards by admitting children without proper screening, the attorney general said this was an argument of segregation.

“If you have the best teachers, best infrastructure, best curriculum...it does not matter what child you admit. The better the skill of the teacher, the greater the need for lower class child to be taught by him or her. The brightest children in our country are not the children who travel in Mercedes (cars), but the children selling flowers at traffic lights,” Vahanvati said.

The bench comprising Chief Justice S.H. Kapadia and justices K.S. Radhakrishnan and Swatanter Kumar said it appreciated the intention behind the law, but also made observations on “reading the Act down”.

This means the court may not let it remain in its current form. The bench has the power to remove portions of the Act on the grounds that they are unconstitutional, instead of annulling it entirely.

“It is the outcome of this law that is bothering us. Tomorrow schools should not close,” Kapadia said.

Another hotly debated provision of the Act is that parents “shall” send their children to neighbourhood schools. Vinod Raina, an educationist, said it is not a violation of the Act if parents send their children to schools outside their neighbourhood.

“Section 10 of RTE Act doesn’t take away the right of parents to send their children to a school of their choice,” said Raina, a member of the Central Advisory Board on Education, a public body that aids the HRD ministry in formulating education policies. “The section implies that the government must provide neighbourhood schools to all children living in all locations.”