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School poor quota sent to larger bench

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  • Published 6.04.13

New Delhi, April 5: The Supreme Court today referred to a larger bench a writ petition challenging the constitutional validity of the Right to Education Act that reserves for the poor 25 per cent seats in most schools.

A bench of Justices K.S. Radhakrishnan and Dipak Misra sent the matter to a larger bench as the Federation of Public Schools, an association of over 350 private schools, claimed that the act violated the constitutional rights guaranteed to private unaided institutions to run schools without any government intervention.

The 25 per cent quota applies to most schools, including private unaided non-minority institutions. A three-judge bench of the apex court had upheld the validity of the act last year.

The Supreme Court has now sent the petition to a three-judge bench which is expected to eventually forward it further to a five-judge bench since a three-judge bench had already ruled on the subject in 2012.

The matter could not be directly referred to a five-judge bench today because a two-judge bench cannot recommend cases beyond a three-judge bench.

The petition, filed through counsel Kamal Gupta, claimed that the court did not consider earlier rulings by two Constitution benches which said the state cannot interfere in the affairs of private schools.

Such interference goes against constitutional provisions that enshrine equality before law and prevent the state from discriminating between citizens on the basis of religion, caste, or other considerations, the petition said.

The petitioner submitted that the three-judge bench in 2012 had said the act applied to non-minority unaided educational institutions and held it to be unconstitutional insofar as minority-run educational institutions were concerned.

The petition said the applicability of the act to private unaided educational institutions “abridges the unfettered fundamental rights of such institutions to establish, run and administer their educational institutions, which include the right to admit the students of the their own choice”.

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

According to the petitioner, when a substantial question of law on the interpretation of the Constitution arises, it should be decided by a bench consisting of at least five judges.

The petition quoted Article 145(3) of the Constitution: “The minimum number of judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five.”

It recalled that an 11-judge bench in 2002 had held that the right to establish, run and administer an educational institution is part of the freedom guaranteed by Article 19()(g).

The law laid down by the 11 judges was further iterated and clarified by a bench of seven judges in 2005, the petition said.