If the parent wants to admit the child in the private school besides the existence of the government school then in such cases the right to free and compulsory education cannot be made available

[Case Brief] Education Rights Trust & Others v/s State of Karnataka and Others

Case name Education Rights Trust & Others v/s State of Karnataka and Others
Case number Writ petition no 8028 r/w 7889 of 2019
Court Karnataka High Court
Bench Justice L. Narayana Swamy and Justice PS Dinesh Kumar
Author of the judgment Justice L. Narayana Swamy
Decided on 31st May 2019
Relevant Act/Sections Constitution of India- Article 21 A

Right to Education Act, 2009 – Sections 6, 8 and Section 12(1)(c)

Author of the case summary Aditya  Gor ([email protected])

 

Brief Facts relating to the dispute –

  • Article 21A came into force by virtue of the 86th Amendment which gave a large number of children an opportunity to attend school for elementary education. The parliament has also enacted Right of Children to Free and Compulsory Education Act, 2009, for the purpose of providing free and compulsory education to all children between the ages of 6 to 14 years. At the same time in the year 2012, the Government of Karnataka also has enacted Karnataka Right of Children to Free & Compulsory Education Rules, 2012.
  • On January 30, 2019, the Government of Karnataka brought an amendment in the Karnataka Rules, 2012. As per this amendment, unaided schools are not required to provide admission to the disadvantaged children where there are government schools and aided schools in the vicinity. Moreover, such unidentified unaided/private schools will not receive reimbursement for filling of 25% RTE quota seats.
  • Several writ petitions were filed in the form of public interest litigation to declare the amendment of Rule 4 of Karnataka Right of Children to Free & Compulsory Education Rules, 2012, declared by notification dated 30.01.2019 as null and void. It was done so on the ground that it is in violation of fundamental rights of children guaranteed under Article 21A of the Indian Constitution. If the said amendment is declared to be ultra vires the constitution, the children may seek admission into any school in the locality under the guise of RTE Act.

Issue to be discussed –

Whether unaided schools should be identified under the RTE Act?

The petitioners have challenged the amendment on the ground that –

  • Government schools are not a preferred choice of the parents because these schools do not provide kindergarten education.
  • The State of Karnataka cannot compel the parents to admit their children in Government schools which do not have English medium.
  • An opportunity to get admission in private schools is taken away by virtue of this amendment.

The Respondents have prayed for the dismissal of the petitions by referring to Section 6 and Section 12(1)(c) of the RTE Act, 2009. It has been argued that –

  • Where there are Government and aided schools available, no private unaided schools can be identified for the purpose of admission of the disadvantaged children.
  • The provision of admission in private unaided schools as per Section 12(1)(c) of the RTE Act is only temporary and transitory in nature. If this is made permanent, then the Government and aided schools will not get a sufficient number of children.
  • Hence the amendment made is strictly in consonance with the objectives of the Act.
  • The proviso to Section 8(a) disentitles the parents or guardians from claiming any reimbursement of expenditure incurred on elementary education admitted to a school other than a school established, owned, controlled, or substantially funded by the appropriate government.

Cases referred –

  • Mohin Jain vs State of Karnataka (1982) – A cumulative reading of the Articles 21, 38(a) & (b), Articles 39, 41 and 45 make it clear that the framers of the Constitution made it obligatory for the state government to provide education to its citizens. It was held that the right to education flows directly from the right to life.
  • Unnikrishnan’s case (1993) SCC (1) 645 – Right to Education is subject to the limits of its economic capacity and development of the State.

Ratio and decision of the Court –

  • The term ‘legal limitation’ alludes to a conviction that judges should restrain the utilization of their energy to strike down laws or to pronounce them unjustifiable or illegal unless there is an unmistakable clash with the Constitution.
  • Article 21A though provides for compulsory education for elementary education but in view of Part IV under Article 45 read with Section 11, which provide education even to pre-elementary education of the Child.
  • When these schools have been established, then the Government need not reimburse the cost or expenditure on the elementary education of the Child.
  • If the Government wants to admit the child in the private school besides the existence of the government school then it is their decision and in such cases, the right to free and compulsory education cannot be availed since the Government is not liable or accountable.
  • The petitioners have failed to show arbitrariness, mala fides or violation of law, etc. in the amendment passed by the Karnataka Government. Hence the said amendment is neither arbitrary nor unconstitutional nor does it infringe any right envisaged under the Constitution.

 

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