New Delhi, Aug. 23: A five-judge bench will examine in November a writ petition challenging the constitutional validity of the Right to Education Act, which mandates that 25 per cent seats in all schools be reserved for the economically disadvantaged.

A three-judge bench of Chief Justice P. Sathasivam, Justice Ranjana Prakash Desai and Justice Ranjan Gogoi referred the issue to a five-judge bench because it involves a vital constitutional question of law relating to the rights of unaided private educational institutions.

A conglomerate of over 350 private unaided schools, the Federation of Public Schools, has contended that the law violates their right to run their schools without government interference.

A two-judge bench of Justice K.S. Radhakrishnan and Justice Dipak Misra had in April this year referred the matter to today’s three-judge bench. Under Supreme Court rules, a two-judge bench cannot directly refer a matter to a five-judge bench.

If the five-judge bench, which is to begin hearing in the first week of November, feels the matter needs to be examined by an even bigger bench, the petition could be referred to a seven-judge, nine-judge or an 11-judge bench.

The petition argued that although a three-judge bench had in 2012 upheld the validity of the law, this was erroneous because the court did not consider two earlier Constitution bench rulings that the State cannot interfere in the affairs of private institutions. Counsel Kamal Gupta said the earlier rulings had said such interference would violate Articles 14, 15(1), 19(1)(g) and 21.

While Article 14 enshrines equality before law, Article 15(1) says the State shall not discriminate between citizens on the basis of religion, caste, or other considerations. Article 19(1) (g) upholds a citizen’s right to do any business and Article 21 the right to liberty.

The right to education law was enacted by Parliament in 2009 by inserting Article 21A to provide free and compulsory education to children between 6 and 14 years.

The petitioner submitted that the three-judge bench in 2012 had erroneously held Article 21A to be constitutionally valid for non-minority unaided educational institutions while holding it to be unconstitutional so far as minority-run educational institutions are concerned.

Article 21A being applied to private unaided schools abridges the “unfettered fundamental rights of such institutions to establish, run and administer their educational institutions, which includes the right to admit the students of their own choice”, counsel Gupta argued.

“The provisions of the RTE Act… at least insofar as it obligates private unaided schools to admit at least 25 per cent students from economical weaker and disadvantaged sections, are unconstitutional and are liable to be declared void,” the petition said.

The petition further said that according to the Constitution, when a substantial question of law with regard to the interpretation of the Constitution arises, it is required to be decided by a bench consisting of at least five judges. It recalled that an 11-judge bench had in 2002 held that the right to establish, run and administer an educational institution is part of the freedom guaranteed by Article 19()(g). The said law was reiterated and clarified by a seven-judge bench in 2005.