The Right of Children to Free and Compulsory Education (RTE) Act, 2009 as well as Article 21-A were inserted in the Constitution of India through the Constitution( Eighty- Sixth Amendment) Act, 2002. This milestone became operational on the 1^st April, 2010. The Prime Minister’s address to the Nation proclaimed, “Right to Education Act will realize the dreams of many children across the nation…This demonstrates our national commitment to education of children and to the future of India. Education is the key to progress. It empowers the individuals. If we nurture our children through right to education then India’s future is secured.”

The Right to Education Act had been anchored in the belief that availability of equal educational opportunities to children belonging to different social and economic background will reinforce the idea of equality enshrined in our constitution, and ensure that children are not discriminated on the basis of social or economic background. The Right to Education Act entitles every child with the right to full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essentials norms and standards. The Act most importantly provided right of children to free and compulsory education till completion of elementary education in a neighbourhood school. Further it clarified that ‘compulsory education’ means the obligation of the appropriate governments to provide free elementary education and ensure compulsory admission, attendance and completion of elementary education to every child in the six to fourteen age group. ‘Free’ means that no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education.

The Ministry of Human Resource Development and Department of School Education and Literacy November 23^rd, 2010 had issued guidelines under Section 35(1) of the Rights of Children to free and Compulsory Education Act, 2009 regarding procedure for admission in schools under Section 13(1) and Section 12(1)(c) of the Right to Education Act. Section 13(1) of the Right of Children to free and Compulsory Education (RTE) Act, 2009 provided, inter-alia, that while admitting a child, no school or person shall subject the child or his/her parents to any ‘screening procedure’, wherein screening procedure means the ‘method of selection for admission of a child, in preference and over another, other than a random method’. Further, Section 12(1)(c) of the Act provided that unaided schools and specified category schools shall admit at least 25% of the strength of class I, children belonging to weaker section and children belonging to disadvantaged group from neighbourhood and provide them free and compulsory education till completion of elementary education.

Subsequent to the above ruling dated 23^rd November 2010, many writs were filled by various private schools challenging the constitutional validity of the Right to Educations Act, specifically the non-applicability of the Right of Children to Free and Compulsory Education Act, 2009  to the unaided non-minority schools.Recently, the Supreme Court while striking down the challenge of private schools to the Right to Education Act (RTE) 2010, upheld its constitutional validity through a majority of Chief Justice SH Kapadia and Justice Swatanter Kumar. While disposing off the several writ petitions filed in Society for Un-aided Private Schools of Rajasthan versus U.O.I. & Anr.  they have held that “ Section 12 (1)(c) read with Section 2(n) (iii) and (iv) mandates that every recognised school imparting elementary education, even if it is an unaided school, not receiving any kind of aid or grant to meet its expenses from the appropriate government or the local authority, is obliged to admit in Class I, to the extent of at least 25% 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. Further, State Government(s), by resorting to the provision of the 2009 Act, must take opportunity to re-organise its financial outflow at the micro level by weeding out the non-performing or under-performing or non-compliance schools receiving grant-in- aid, so as to ensure that only such government funded schools, who fulfil the norms and standards, are allowed to continue, to achieve the object of the 2009 Act of not only providing free and compulsory education to the children in the neighbourhood school but also to provide quality education.”

“A thing is constitutional is not to say that it is desirable” ,While rejecting the plea of the private schools, the Act has been held to be applicable to a school established, owned or controlled by the appropriate Government or a local authority,  an aided school including aided minority schools receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority, a school belonging to specified category, and an unaided non-minority school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority, thus definitively has brought private schools under the purview of the Act.

However, if the Right to Education Act has to be implemented in letter and in spirit, the government cannot ignore the quality of education it provides under its roof. Even as the government makes private schools “socially responsible,” it still has to bear the onus of educating the majority of children who go to government schools. Further, the assumption that private schooling is superior to a government education is based on the fact that children in the former tend to outperform the latter in examinations. When parental education, tuition classes and economic disparities are controlled for, the difference in reading scores between government and private schools falls drastically from 20 per cent to five per cent. Further just herding children into private schools is not going to ensure their learning unless teachers are sensitised and trained to deal with children with different profiles.

BY LAWZ BUREAU