SC upholds Bombay HC order striking down RTE exemption to private unaided schools

The SC bench observed that the high court order was well-reasoned and did not need to be interfered with

MUMBAI: The Supreme Court on Friday upheld the Bombay high court’s order striking down the Maharashtra government’s decision to exempt private unaided schools within one-kilometre vicinity of a government or aided school from admitting children from disadvantaged and weaker sections of society under the 25% Right to Education (RTE) quota seats.

Thane, India - April 21, 2022: Children wait for the completion of RTE Admission 2022-23 procedures as the Maharashtra School Education and Sports Department have started accepting applications for admissions of students in private schools under the Right To Education or RTE Act for the upcoming academic session, in Thane, Mumbai, India, on Thursday, April 21, 2022. (Praful Gangurde/HT Photo) (HT PHOTO)

The Association of Indian Schools had approached the apex court challenging the high court’s July 19 order. A bench headed by Chief Justice of India DY Chandrachud dismissed the association’s special leave petition, observing that the high court order was well-reasoned and did not need to be interfered with.

“Students need to have the choice of [a] good education. Reserving 25% quota in private unaided schools ensures that students from disadvantaged groups can be assimilated into the mainstream,” the apex court said while disposing of the petition.

The Right of Children to Free and Compulsory Education Act, 2009,

mandates every school to reserve 25% of its seats for children from disadvantaged and weaker sections of society. Students admitted under this quota are given concessions on their school fees, for which the state government reimburses private schools.

In February, the Maharashtra government amended the rules for implementing RTE in the state. According to the new rules, private schools within a one-kilometre radius of a government or aided school will not be obligated to provide admissions under the RTE quota.

Several individuals and activists working in the field of education had filed petitions in the Bombay high court challenging the government’s notification. The petitions were filed through advocates Payal Gaikwad, Aparna Mehrotra, and Vasudha Chandwani. Their counsel, senior advocate Jayna Kothari, had argued that the amendments were not only unconstitutional, being violative of Articles 14 (right to equality), 21 (right to life) and 21A (right to free and compulsory elementary education) of the Constitution but were also ultra vires—exceeding the legal scope of its authority—the provisions of the RTE Act.

The senior advocate had also pointed out that Section 12(1)(c) of the RTE Act clearly mandated that every private unaided school should admit at least 25% of the strength of Class 1 children belonging to weaker sections and disadvantaged groups in the neighbourhood, and provide free and compulsory elementary education to them. The exclusion of such schools from the mandate was not permissible, they argued.

The high court accepted their arguments, observing that exempting the private unaided schools within a 1 km radius from government or aided schools was “clearly in infringement of Section 12(1)(c) of the RTE Act for the reason that the said provision does not provide for any condition.”

The bench held that the operation of the section was “rather unconditional and hence it is mandatory for all private unaided schools in the neighbourhood to follow the mandate of Section 12(1)(c) of the RTE Act.” The section lays down the mandate of admitting underprivileged children under the 25% RTE quota.