An apex court bench of Chief Justice S.H. Kapadia, Justice K.S. Panicker Radhakrishnan and Justice Swatanter Kumar made the observation in the course of the hearing of a petition by the Society for Un-aided Private Schools of Rajasthan challenging the provision of the Right to Education Act mandating the private schools to reserve 25 percent of their seats for the students coming from socially disadvantaged section of society.
The senior counsel Vikas Singh appearing for the petitioner society said that the provision leaving aside 25 percent seats for the students coming from socially disadvantaged section of the society amounted to reservation and Right to Education Act (RTE) infringed upon their right to admit 100 percent of their students.
At this Chief Justice Kapadia said that what could be a reservation for the private schools could be a priority for the government. He asked under what provisions of the constitutions they (private schools) enjoyed an absolute right to admit 100 percent of their students without any say to the government or legislature.
‘Show us under which article (of the constitution) you have an exclusive right to admit 100 percent students’, the court said adding, ‘We will to see the entire scheme which includes 21 (a) of the constitution.’
‘Reservation, affirmation and privatization are different. You can see it as a reservation. I can call it priority. It has to be based on egalitarian system of civil society,’ the court observed.
The court said that legislature has ample power to make law and asked the petitioner private schools to explain how 25 percent reservation amounted to ‘unreasonable restriction on their right to admit students’.
When senior counsel Vikas Singh reiterated reservation was infringing their rights, Chief Justice Kapadia said, ‘Whether restriction is unreasonable is very difficult to answer. It can’t be answered without the study of constitution in the light of the Directive Principles of State Policy.’
The counsel argued that expanses being incurred on account of admitting these students would have a crippling affect on the schools. He told the court that government would be paying them what it was spending in its (government) schools. He said that reimbursement was only sequel to reservation.
‘Expenses are so high that they are killing us,’ Singh told the court.
At this court said that at the end of the day expenses are calculable and asked the senior counsel to show that they are ‘killing you’.