"Extend Provisions Of Act To Minority Educational Institutions": PIL In Supreme Court Challenges Provisions Of RTE Act 2009

A PIL has been filed before the Supreme Court of India challenging the Constitutional Validity of Sections 1(4) and 1(5) of the Right Of Children To Free And Compulsory Education Act, 2009 (RTE Act) for depriving educational excellence to children belonging to Minority communities.

While arguing that the provisions are ultra vires to Article 21-A and Article 14 of the Constitution the writ petition has sought directions to Union of India to take necessary steps to extend the Provisions of the RTE Act 2009 to Educational Institutions belonging to the Minority Community

It is the case of the writ petitioner that both the impugned provisions, when tested on the touchstone of the 'Child Rights', are violating Article 21-A and 14, thereby violating the fundamental rights of lakhs of children belonging to Minority Communities in India.

The petitioner has argued that despite the insertion of Article 21A in the Constitution providing for free and Compulsory education for children between the age of 6 to 14 years, the RTE Act 2009, is now not applicable on the Minority Educational Institutions in India by two recent judgments of the Supreme Court (in the case of Society for Unaided Private Schools of Rajasthan and Pramati Educational And Cultural Trust.) 

The plea has stated that after Supreme Court's decision in case of Society for Unaided Private Schools of Rajasthan vs. Union of India & anr. holding that the 2009 Act infringes the fundamental right guaranteed to Unaided Minority schools, the RTE Act was amended in 2012 inserting new sub- sections (4) & (5) in Section 1 of the RTE Act, providing specifically that the Act will not be applicable on the Minority and Religious Educational Institutions.

The plea has submitted that the judgment of this Supreme Court in the case of Pramati Educational & Cultural Trust & ors vs. Union Of India held that the RTE Act was not applicable on the aided & unaided Minority Educational Institutions. The petitioner has argued that the case is erroneous and requires reconsideration for the detailed grounds mentioned in the present writ petition.

The petition has cited the Supreme Court's decision in the matter of Mohd. Rafique vs. Managing Committee Contai Rahmania High Madrasah & Ors. where it held that a balance has to be maintained between twin objectives of ensuring the standard of excellence of the institution and preserving the right of the minorities to establish and administer their educational institutions.

The petitioner has submitted that the rights guaranteed to the Minority Educational Institutions under Article 15, 29 & 30 are very well established, recognized and judicially tested and approved.

According to the petitioner, there are many secular provisions in the RTE Act, which are essentially for achieving either education excellence or the mental and physical well being of the children and ensuring the basic infrastructural facilities in their educational institutions. Applying such provisions of the RTE Act on the Minority Educational Institutions will not hamper their Rights under Article 29 and 30.

The petitioner has therefore argued that totally blocking the applicability of the RTE Act on the Minority Educational Institutions is incorrect and not in the interest of children belonging to minority community. Further it is in violation of the principle laid down by the Supreme Court that state has the power to make and apply regulations on the Minority Educational Institutions.

The petition has been filed through Advocate Gautam Jha.

Case Title: Javed Malik vs Union of India & ors