Jurisdiction - India
The ‘Fight’ to Education, Bone of Contention – The Right of Children to Free and Compulsory Education Act, 2009 (“RTE Act”).

15 April, 2012

The Government of India enacted the RTE Act with the objective of providing free and compulsory education and equal opportunity to all children between the ages of 6 to 14 years and remove financial barriers which prevent a child from accessing education. The word "Free" in the title to the RTE Act stands for removal by the Government of any financial barrier that prevents a child from completing 8 years of elementary schooling. The word "Compulsory" in that title stands for compulsion on the Government to provide and ensure admission and completion of elementary education and the parental duty to send children to school. 
As per the RTE Act, no school can be set up without obtaining a certificate of recognition from the appropriate authority which is granted subject to compliance with certain prescribed norms and standards. The RTE Act makes it mandatory for government schools, aided schools and every unaided private school to admit children belonging to weaker section and disadvantaged group in the neighborhood in Class I to the extent of at least 25% of the strength of that class, and provide free and compulsory elementary education till 14 years of age. The school is entitled to reimbursement of expenditure incurred by it to the extent of per-child-expenditure incurred by the State government, or the actual amount charged from the child, whichever is less, in the manner provided under the RTE Act.
Picking the Bone – The Judgment 
The constitutional validity of the RTE Act was challenged by an association of private unaided schools as being violative of their rights, inter alia, the right to decide whether or not to admit students and set up reasonable fees structure. Rejecting the stand of the private unaided schools, the Supreme Court of India (“SC”), in a majority judgment delivered by Chief Justice of India, S.H. Kapadia, upheld the constitutional validity of RTE Act which received assent from the President of India on August 26, 2009 and came into force with effect from April 1, 2010.
The RTE Act has been enacted keeping in mind the crucial role of universal elementary education for strengthening the social fabric of democracy through provision of equal opportunities to all. In this backdrop, the SC held/upheld:
  •  the constitutional validity of RTE Act. The SC clearly iterated that the expansive provisions of the RTE Act are intended not only to guarantee the right to free and compulsory education to children, but to set up an intrinsic regime of providing right to education to all children by providing the required infrastructure and compliance of norms and standards. 
  • that Article 19(1)(g) of the Constitution (i.e., the right to practice any profession, or carry on any occupation, trade or business) is not an absolute right, and is subject to reasonable restrictions that can be imposed by the State in the interests of the general public. Restrictions imposed by the Government under the RTE Act including the reservation restriction in favor of the economically weaker students are reasonable and cannot be termed as unreasonable or violative of the above fundamental right.
  • the requirement of admitting children belonging to weaker section and disadvantaged group in the neighborhood in Class I to the extent of at least 25% of the strength of that class and confirmed that this restriction does not violate Article 14 of the Constitution of India (i.e., equality before law) as this condition satisfies the test of classification under Article 14 of the Constitution of India.
  • that the restrictions on right of admission of the school does not vitiate the constitutional validity of the RTE Act in view of the SC’s earlier decisions (in the matters of TMA Pai Foundation v. State of Karnataka, and P.A. Inamdar v. State of Maharashtra) where the SC recognized the right of private unaided educational institutions to decide whether or not to admit students and right to set up reasonable fees structure. The SC stated that the aforesaid cases, firstly, did not deal with interpretation of Article 21A of the Constitution of India, and secondly, dealt with higher education institutions only.
  • that unaided monitory private schools are protected from applicability of the RTE Act as right to establish and administer such schools flows from the right to conserve the language, script or culture, which right is conferred on such unaided minority schools under Article 30(1) of the Constitution. However, the SC stated that the case of aided minority schools is different and they shall not be exempted from applicability of the RTE Act.
The SC observed that the Government must also look at weeding out non-performing, under-performing or non-compliant schools and upon closure of such schools, the students and the teaching and non-teaching staff thereof should be transferred to a neighborhood school. In the SC’s view such a move will increase accountability of aided schools and will ensure proper and meaningful utilization of public funds.
The SC urged the State to clarify applicability of the RTE Act to boarding schools and orphanages, as in those institutions there are day scholars and boarders. In the SC’s view, the RTE Act ought to apply to day scholars only and not to boarders. 
In view of the foregoing, the SC stated that the RTE Act shall, inter alia, apply to the following from the current academic year 2012-13:
(a)   Government owned and controlled schools;
(b)   Government aided schools, including minority aided schools; and
(c)   Unaided non-minority schools. 
Falling of the Axe – Impact of the Judgment on Schools
Although most schools appreciate the laudable intent of the judgment, their primary concern is the acute financial burden placed on them. 
It is their contention that the amount earmarked by the Government for reimbursement is not commensurate with the actual expenditure incurred by most private unaided schools in providing free education to poor students. According to reports private schools spend about Rs. 1200 to Rs. 3000 a month on each child. The total charges paid by students are not just tuition fee but also include charges for uniform, books, trips, transportation etc. For instance, the Delhi Directorate of Education has currently fixed the reimbursement amount at Rs. 1190 per month. Most schools find this reimbursement amount to be inadequate. 
To make matters worse, even the inadequate reimbursement is not forthcoming. The schools claim that they have not been paid reimbursement for last two years. Many schools have claimed to have postponed their up gradation plans to bridge the financial gap. Further, as per the proviso to section 12(2) of the RTE Act, schools under obligation to provide free education to a specified number of children on account of having received infrastructure or equipment free or at concessional rates are not entitled to reimbursement to the extent of such obligation. 
Given the expenditure-reimbursement mismatch, schools are apprehensive that they will have to shift some of the financial burden to the balance 75% students of the school by hiking fees. 
Apart from funding issues, schools are also apprehensive about integration of poor students along with regular students. Additionally, schools allege ambiguity in law, for instance with respect to status of children who cease to be economically weak. 
Collateral Damage – Impact of the Judgment on Teachers 
A direct impact of the judgment is also on teachers, who are proscribed by section 28 of the Act from engaging in private tuition or teaching activities. The reasoning behind this provision is to ensure that teachers contribute in imparting quality education in the school itself. 
While the intent of the RTE is laudable, there are practical difficulties in its implementation. The coming years will highlight whether the Government’s objectives of strengthening the social fabric of democracy and bridging the gap between economically advantaged and disadvantaged students are actually achieved or the RTE Act is rendered a toothless tiger.


For further information, please contact:


Seema Jhingan, Partner, LexCounsel
Chanda Sheemar, LexCounsel


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