Are Orphans Entitled To Quota Under Right To Education Act? Supreme Court Seeks Responses Of Union, States

The Supreme Court on Friday (September 15, 2023), sought the response of the Union Government and all State Governments on whether Section 2(d) of the Right to Education Act, 2009, which defined the expression "child belonging to disadvantaged groups" could also include orphaned children.  Schools are mandated to provide at least 25% quota for the 'Children belonging to disadvantaged groups' as per Section 12 of the Act.

The court also sought instructions on whether benefits provided under the PM Cares Fund to children orphaned during the COVID pandemic could be extended to other orphans too.

The matter, listed before a bench comprising CJI DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra, will now be listed after four weeks. 

At the outset, the Union Government asked for an adjournment in the matter. Additional Solicitor General Vikramjit Banerjee stated that he had recently taken over the matter and thus needed more time for responding. The CJI pointed out that the notice was issued in the matter in the year 2018 and it was still ongoing owing to repeated adjournments. 

At this juncture, Advocate Prashant Bhushan, for the petitioner, stated that on the present hearing, they only had two demands to be met with–

1. The benefits extended to the children orphaned during the COVID-19 pandemic under the PM-Cares Fund should be extended to all orphans.

2. The benefits given to Economically Weaker Sections (EWS) in matters of education under the Right to Education Act, that is, 20% reservation for children belonging to the EWS category in all private schools, should be extended to all orphans.

The CJI pointed out that the issue pertaining to benefits of children orphaned during COVID-19 pandemic had already been flagged by the Supreme Court in its last order in the matter. In the last hearing, ASG Madhavi Divan had been asked to take instruction on whether the benefit of schemes which were provided for children orphaned during the COVID-19 pandemic can be extended to all orphaned children.

In yesterday's proceedings, the petitioners argued that there should not be any differentiation between orphans on the basis of how their parents died. CJI remarked–

"You are absolutely right. They might have got out the policy after COVID. But now you must extend it to everybody. Orphan is an orphan irrespective of whether the father and mother died of an accident or illness."

However, the CJI added that the court first wanted to know what schemes the government had in place and what they were planning to do. Underlining the gravity of the matter, CJI said–

"Mr Vikramjit, you cannot treat this as any other matter."

The petitioner in the matter, Poulomi Pavini Shukla, argued that–

"The Right to Education Act empowers each state to notify any other additional children who may be considered eligible for benefits. The state of Gujarat in 2013 and Delhi in 2015 have done this by simple GO. It does not require Cabinet note. If other states can be directed to issue the same GO it would be good."

The CJI took note of the same and stated that the last order of the court had not been complied with and reiterated that the ASG must take instructions on whether the benefits of the schemes which were provided for children orphaned during the COVID-19 pandemic could be extended to all orphaned children.

Apart from this, the court stated it the petitioners had sought for the appropriate governments to define the expression "child belonging to disadvantaged groups" under Section 2(d) of the RTE Act to include orphaned children, especially those suffering from social and educational backwardness. Dictating the order, CJI said–

"We direct the Union of India to take and consider this aspect as well when it responds. All the state government shall also file their affidavits on the above aspect."

Case Title: Poulomi Pavini Shukla v. Union Of India And Ors W.P.(C) No. 503/2018 PIL-W