Says it is ultra vires of the Constitution and will abrogate their right

“The contention that excellence will be compromised by admission from amongst the backward classes of citizens and the SC and ST in private educational institutions is contrary to the Preamble of the Constitution.
— Supreme Court

New Delhi : The Supreme Court has held that the Right of Children to Free and Compulsory Education Act, which mandates 25% seats in all schools be reserved for the economically disadvantaged, is not applicable to minority institutions as it is ‘ultra vires’ of the Constitution and will ‘abrogate’ their right.

A five-judge Constitution bench headed by Chief Justice R M Lodha said the 2010 judgement of its three-judge bench which held that the 2009 Act was applicable to aided minority schools was ‘not correct’.

The larger bench also ruled that Article-21 A(right to education) and Article-15 (5) (relating to economically weaker sections) does not alter the basic structure or framework of the Constitution and they are ‘constitutionally valid’. “In the result, we hold that the Constitution (93rd Amendment) Act, 2005 inserting clause (5) of Article-15 of the Constitution and the Constitution (86th 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 also hold that the 2009 Act is not ultra vires of Article-19(1)(g) (regarding freedom of speech) of the Constitution. We, however, hold that the 2009 Act insofar as it applies to minority schools, aided or unaided, covered under clause (1) of Article 30 (right of minorities) of the Constitution is ultra vires the Constitution,” the bench, also comprising justices A K Patnaik, S J Mukhopadhaya, Dipak Misra and F M I Kalifulla, said.

“In our view, if the 2009 Act is made applicable to minority schools,aided or unaided, the right of the minorities under Article 30(1) of the Constitution will be abrogated….”We are thus of the view that the majority judgement of this Court in… insofar as it holds that the 2009 Act is applicable to aided minority schools is not correct”, it said, referring to the 2-1 verdict pronounced in 2010.

Article 15 (5)       enables the State to make a special provision, by law, for the advancement of socially and educationally backward classes of citizens or for the scheduled castes and scheduled tribes insofar 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 of the Constitution.

The bench also rejected the contention of non-minority private unaided educational institutions that Article 15 (5) violates the fundamental right to life and personal liberty under Article 21 and a duty under Article 51A(j) to strive towards excellence in all spheres of individual and collective activity.        The court said the contention that this would not be possible if private educational institutions in which a person studies for the purpose of achieving excellence are made to admit students from amongst backward classes of citizens and from the SC and ST, was not founded on the experience of educational institutions in India.

“Educational institutions in India such as Kendriya Vidyalayas, IITs, AIIMS and Government Medical Colleges admit students in seats reserved for backward classes of citizens and for the SC and ST and yet these Government institutions have produced excellent students who have grown up to be good administrators, academicians, scientists, engineers, doctors and the like.

“Moreover, the contention that excellence will be compromised by admission from amongst the backward classes of citizens and the SC and ST in private educational institutions is contrary to the Preamble of the Constitution which promises to secure to all citizens ‘fraternity assuring the dignity of the individual and the unity and integrity of the nation”, the bench said.                              — PTI

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