New Delhi: The Supreme Court today held that the Right of Children to Free and Compulsory Education Act, which mandates 25 per cent 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 21A(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 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.

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