The Supreme Court on Monday issued notice to the central government on a petition seeking exemption for unaided educational institutions from earmarking 25 per cent seats for students from the weaker sections of the society.
Unaided minority educational institutions are exempted from doing so under the Right to Education Act, 2009, which calls for reserving 25 per cent seats for socially and economically backward sections of the society.
An apex court bench of Justice K.S. Radhakrishnan and Justice Dipak Misra issued the notice after senior counsel Mukul Rohtagi contended that Article 15(5) was ultra vires of the basic structure of the constitution as it discriminated between two similarly placed category of educational institutions on the basis of their minority and non-minority status.
Seeking that the matter on the constitutional vires of the Article 15(5) be examined by the atleast five judges constitution bench, Rohtagi said that the constitution envisages equal status for minority and majority.
It would be against the scheme of the constitution to put minority on a higher pedestal then the majority community. Rohtagi was assisted by counsel Govind Goel.
The court was told that the Article 145(3) of the constitution provides that a bench of atleast five judges could only hear a case involving the substantial question of law and the interpretation of the constitutional provisions or for hearing any presidential reference.
The petition moved by 14 non-minority Karnataka based educational trusts and institutions has contended that the provisions of the Right of Children to Free and Compulsory Education Act, 2009 along with Right of Children to Free and Compulsory Education Rules, 2010 are ultra vires of the fundamental rights particularly those guaranteed under Article 14, 15(1), 19(1) and 21 of the constitution.
The present petition is rooted in Apr 12, 2012, apex court verdict that upheld the constitutional validity of the Right to Education (RTE) Act that mandates unaided private schools to keep 25 per cent seats for students from economically and socially weaker sections of society.
Then chief justice S.H. Kapadia and Justice Swatanter Kumar by majority judgment had upheld the constitutional validity of Section 12 (1)(C) of the RTE Act, 2009 that provides 25 per cent reservation for students from weaker sections of society.
While upholding the constitutional validity of Section 12 (1)(C) of the RTE Act, the majority judgment that was pronounced by chief justice Kapadia (since retired) had exempted the unaided minority educational institutions from earmarking 25 percent seats for students from socially and economically weaker sections of society but same exemption was held back from non-minority unaided institutions.
However, Justice K.S. Radhakrishnan, in a separate judgment, had held that the mandate under RTE Act,2009, providing for reservation of seats was not constitutionally valid, thus none of the unaided schools, be it majority or minority, could be compelled to earmark 25 per cent seats in their institutions for weaker sections.
Justice Radhakrishnan read down the Section 12(1)(C) of the RTE Act, 2009, in respect of the unaided non-minority and minority institutions holding that it can be given effect to “only on the principles of voluntariness, autonomy and consensus and not on compulsion or threat of non-recognition or non-affiliation.”