SC refers to larger bench 2014 verdict exempting minority schools from RTE Act

New Delhi, Sep 1 (PTI) Doubting the correctness of its 2014 verdict that kept minority schools out of the RTE Act's ambit, the Supreme Court on Monday referred the matter to a larger bench for adjudication.

A bench comprising Justices Dipankar Datta and Manmohan was "distressed" to note from the materials placed on record including a study of the National Commission for Protection of Child Rights that the exclusion had created a fertile ground for misuse.

"We hasten to observe with utmost humility at our command that the decision in Pramati Educational and Cultural Trust (supra) might have, unknowingly, jeopardised the very foundation of universal elementary education. Exemption of minority institutions from the RTE Act leads to fragmentation of the common schooling vision and weakening of the idea of inclusivity and universality envisioned by Article 21A," the bench said.

Article 21A deals with Right to Education and says, "The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine." The top court said the RTE Act ensured children, a range of entitlements such as basic infrastructure, trained teachers, books, uniforms and mid-day meals.

However, minority schools excluded from the RTE Act's purview, were not necessarily bound to provide these facilities, it said.

"Some minority schools might provide a few facilities as mandated by the RTE Act, but others may fall short leaving their students without access to such mandated facilities. For many of these students, such benefits are not just amenities but affirmations of belonging, equality, and recognition," the top court underscored.

Beyond physical provisions, the bench said, the RTE Act also ensures common curricular standards through notified academic authorities which guarantee quality education based on constitutional values to every child.

"Minority institutions, however, operate without such uniform guidelines, leaving children and their parents uncertain about what and how they are taught, and often disconnected from the national framework of universal learning," the bench said.

The top court said instead of uniting children irrespective of caste, class, creed, and community, the situation "divides and dilutes" the transformative potential of shared learning spaces.

"If the goal is to build an equal and cohesive society, such exemptions move us in the opposite direction. What commenced as an attempt to protect cultural and religious freedoms has inadvertently created a regulatory loophole, leading to a surge in institutions seeking minority status to bypass the regime ordained by the RTE Act." The top court, as a result, framed four questions for the larger bench's consideration.

Firstly, whether the judgment in Pramati Educational and Cultural Trust exempting minority educational institutions, aided or unaided, falling under Clause (1) of Article 30 of the Constitution, from the purview of the entirety of the RTE Act, requires reconsideration.

Article 30 deals with the right of minorities to establish and administer educational institutions.

The second question was whether the RTE Act infringes the rights of minorities, religious or linguistic, guaranteed under Article 30(1) of the Constitution and assuming Section 12(1)(c) of the RTE Act suffers from the vice of encroaching upon minority rights protected by Article 30 of the Constitution and therefore if Section 12(1)(c) should have been read down to include children of the particular minority community who also belong to weaker sections and disadvantaged groups to save it from being declared ultra vires such minority rights? Section 12(1)(c) of the RTE Act directs, subject to certain conditions, a school to "admit in Class I, to the extent of at least twenty-five per cent 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".

"What is the effect of non-consideration of Article 29(2) of the Constitution in the context of the declaration made in Pramati Educational and Cultural Trust that the RTE Act would not be applicable to aided minority educational institutions?" another question read.

Article 29 (2) reads, "No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them".

The fourth question was whether in the absence of any discussion in Pramati Educational and Cultural Trust regarding unconstitutionality of the other provisions of the RTE Act, except Section 12(1)(c), the entirety of the enactment should have been declared ultra vires minority rights protected by Article 30 of the Constitution? The apex court further held the provisions of the RTE Act will have to be complied with by all schools except the schools established and administered by the minority -- whether religious or linguistic -- till such time the reference was decided by the larger bench.

"We invoke our powers under Article 142 of the Constitution of India and direct that those teachers who have less than five years' service left, as on date, may continue in service till they attain the age of superannuation without qualifying the TET (Teachers' Eligibility Test)," the bench said.

The top court continued, "Insofar as in-service teachers recruited prior to enactment of the RTE Act and having more than 5 years to retire on superannuation are concerned, they shall be under an obligation to qualify the TET within 2 years from date in order to continue in service." PTI PKS AMK AMK