Supreme Court Doubts Correctness Of Judgment Exempting Minority Schools From RTE Act; Refers To CJI

The Supreme Court today(September 1) expressed doubt over the correctness of the 2014 Pramati Educational & Cultural Trust judgment delivered by a 5-judge Constitution Bench insofar as it held that the Right of Children to Free and Compulsory Education, 2009 ("RTE Act") exempts minority schools, whether aid or unaided, under the purview of the RTE Act."In view of the foregoing discussions, we respectfully express our doubt as to whether Pramati insofar as it exempts application of the RTE Act to minority schools, whether aided or unaided, falling under clause 1 has been correctly decided," observed a bench comprising Justice Dipankar Datta and Justice Manmohan.The bench referred the matter to the Chief Justice of India to decide whether a larger bench reference is warranted.If it is assumed that the RTE Act violated the rights of minorities under Article 30, the Court asked whether Pramati ought to have considered reading down mandate of the Act (S.12(c)) - that a school should admit students from weaker sections to the extent of 25% - to mean students belonging to the weaker sections of a particular community in the case of minority schools.Considering the issue of the applicability of RTE to minority schools and expressing doubt over the Pramati judgment, the bench referred four questions to the Chief Justice of India BR Gavai, for appropriate directions: "We said that we could have followed the seven-judge bench's decision in Aligarh Muslim University and directly referred the matter to the seven-judge bench. But we have restrained ourselves from doing that. Instead, we have followed a decision of 1965 Shri Bhagwan And Anr vs Ram Chand And Anr, where J Gajendragadkar speaking for the bench said that in such situations it is better that the bench of lesser strength refers the issues to the hon'ble Chief Justice to take a call."The following are the issues referred :1. Whether said(Pramati) judgment requires reconsideration. 2.Whether RTE Act infringes the rights of minorities and assuming that Section 12(1)(c) suffers from vires of encroaching upon minority rights protected by Article 30, Section 12(1)(c) should have been read down to include 'children of the particular minority community' who also belong to weaker section and disadvantaged groups to save Section 12(1)(c) to be declared as ultra vires 3. On the effect of non-consideration of Article 29(2) in Pramati.3. The effect of non-consideration of Section 23(2) in the said judgment and finally, in the absence of any discussion in the judgment regarding unconstitutionality of the other provisions of the RTE Act except Section 12(1)(c), the entirety of the enactment should have been declared ultra vires."The two-judge bench opined that the Pramati erred in giving a blanket exemption to minority institutions."In our considered opinion, the RTE Act ought to apply to all minority institutions, whether aided or unaided. As discussed, its implementation does not erode—let alone annihilate—the minority character protected under Article 30(1). On the contrary, applying the RTE Act aligns with the purposive interpretation of Article 30(1), which was never meant to shield institutions from reasonable regulation in pursuit of constitutional goals. There is no inherent conflict between Article 21A and Article 30(1); both can and must co-exist mutually," the Court observedA bench comprising Justice Dipankar Datta and Justice Manmohan pronounced judgment in a batch of civil appeals, where various issues were raised, including whether teachers appointed before July 29, 2011, having years of teaching experience, are required to qualify the Teachers' Eligibility Test (TET) to be considered for promotion and whether in case of minority institutions, there can be insistence by school education departments on teachers' passing of the TET. For context, on July 29, 2011, the National Council for Teacher Education ("NCTE") made TET mandatory under amendments to the notification laying down the minimum qualifications for a person to be eligible for appointment as a Teacher.As for the mandatory requirement of TET, the Court passed certain directions under Article 142:1. Those teachers who have less than five years of service left as on date will be continued in service till they attain the age of superannuation without qualifying for the TET.2. Any such teacher who has less than five years of service left, if aspires for promotion, will not be considered eligible without qualifying TET.3. In-service teachers recruited prior to the enactment of the Act, and having more than five years to retire, shall be under an obligation to qualify for the TET within 2 years in order to continue in service. If any such teacher fails to qualify the TET within the time allowed, they will have to quit service or be compulsorily retired and paid terminal benefits. To qualify for the terminal benefits, such teachers must have put in the qualifying service in accordance with the rules. If any...

Supreme Court Doubts Correctness Of Judgment Exempting Minority Schools From RTE Act; Refers To CJI

Gursimran Kaur Bakshi

"In our considered opinion, the RTE Act ought to apply to all minority institutions, whether aided or unaided," the two-judge bench opined.

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