25% Seats for Poor in Private Schools

In glitters of political rallies and debates media and common people have just missed a very important recent issue.

In a landmark judgement Supreme Court has clarified that all schools – public and private (aided and unaided) – except unaided minority schools will have to reserve 25% of seats for poor children. As Right to Education Act (93rd amendment) has provided this provision by inserting clause 5 in Article 15 to provide for reservation to weaker sections in admission to unaided private educational institutions did not violate the basic structure of the Constitution.

The Right to Education Act, 2009 provides primary education for all in India, which is compulsory and free. It is a great initiative to have the Act after 62 years of independence. It is neither the market nor the corporate social responsibility but the Constitution that catalysed the judiciary to uphold free elementary education to every child, which is a facet of ‘right to life’ under Article 21 of the Constitution. Even this Act is having a provision that each private school will be liable to reserve its 25% seats for poor and marginal students of society, but producing no effect. Still after 4 years, society is waiting for its realizations. With no strict rule for implementation and pending cases in courts between Private Institutes and Government, the real losers are the students who are not able to provide huge fees for the private schools. The biggest problem is with rural areas where schools have been constructed (maybe just to fulfil the targets of some schemes ) but teachers are not adequate, and local rural people or panchayat representatives are wandering from pillar to post for teachers.

93rd constitutional amendment states that “(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.” Which paves the way for 25% seats for poor children in private unaided schools.

Private schools were resisting this step and challenged the provisions of RTE Act under Article 19(1)(g) (right to carry on any profession or trade). As they were stating that the said provision of the act is curtailing their fundamental right so it is un-constitutional.

Constitution Bench comprising Chief Justice R.M. Lodha and Justices A.K. Patnaik, Dipak Misra, S.J. Mukhopadhaya and Ibrahim Kalifulla upheld the constitutional validity of Articles 15(5) and 21-A of the Constitution so far as it relates to unaided educational institutions to provide compulsory education for children in the age group of 6 to 14 years.

Upholding the validity of the RTE Act and reservation of SC/ST and OBCs in educational institutions, the court observed:

• We hold that the Constitution (Ninety-Third Amendment) Act, 2005 inserting Clause (5) of Article 15 of the Constitution and the Constitution (Eighty-Sixth Amendment) Act, 2002 inserting Article 21A of the Constitution do not alter the basic structure or framework of the Constitution and are constitutionally valid.
• We, however, hold that the 2009 Act insofar as it applies to minority schools, aided or unaided, covered under clause (1) of Article 30 of the Constitution A is ultra vires the Constitution.
• We accordingly hold that none of the rights under articles 14, 19(1)(g) and 21 of the Constitution have been abrogated by Clause (5) of Article 15 of the Constitution and we hold that the (Ninety-third Amendment) Act, 2005 of the Constitution inserting clause (5) of Article 15A of the Constitution is valid.

The apex court verdict came in response to the reference made by a three-judge bench of this court by order of September 6, 2010 in Society for Unaided Private Schools of Rajasthan versus Union of India.

But this judgement is not free of glitches, as it is categorically saying that act is not applied on minority institutions. Now schools are running for getting minority status so that they can keep themselves out of the act. Point to be noted, in India there are two type of minority institutes; Linguistic and Religious. For an institution, obtaining the minority tag is an easy process. One can get it from the state minority department in flat 40 days by paying just Rs 5,000 as fee. The certificate is a permanent affair and is revoked only in extremely rare cases.

The tag gives these schools a lot of functional freedom, including exemption from reservation in hiring teaching and non-teaching staff. And now the SC has exempted them from the 25% RTE quota. If we talk about numbers, 80% of schools in Maharashtra have already got religious or linguistic minority tag; with more schools applying.

According to an estimated figure, these 2,200 trusts operate nearly 28,000 schools, both aided and unaided. This is nearly 77% of the 36,000 private schools in the state. Interestingly, neither the minority department nor the school education department has any data on the number of schools run by these trusts or the number of minority students enrolled in these schools. Following the SC ruling, the ministry has asked the officials to compute the figure.

There is a popular saying ‘when student is ready, teacher will appear’, but I guess this saying has no relevance with current situation of those hundreds of thousand schools who are still waiting for staff. It seems education is still a mean of luxury in society. How framework like ‘Right to Education’ are still a myth and which can be overcome by legal and constitutional loopholes.