Supreme Court Refuses To Entertain Plea Challenging RTE Act Exemption For Madrassas & Vedic Pathshalas; Gives Liberty To Approach HC

A Bench comprising Justices L. Nageswara Rao and B.R. Gavai asked the petitioner to approach the High Court under Article 226 of the Constitution of India raising all the issues that he had raised in the present petitioner filed under Article 32.

"Ld. Senior Counsel, Mr. Ranjit Kumar appearing for Ashwini Upadhyay, a public spirited advocate of Supreme Court submits that issues pertaining to interpretation of constitution are involved. This Writ petition has to be decided by the Court. We are of the opinion that petitioners can approach that High Court…by raising all points urged in this Writ Petition. The petitioner is permitted to withdraw this Writ and approach the High Court. We have not expressed any opinion on merit."

The petitioner averred that the statute was enacted to uphold the principles envisaged in Articles 14, 15, 16, 21, 21A in furtherance of the Articles 38, 39, 46 and the Preamble, making education 'free' and 'compulsory' for children. On 01.08.2012, by way of an Amendment, Sub-sections 4 and 5 were inserted in Section 1, in blatant derogation of Articles 14, 15, 16 21, 21A, 38, 39, 46 and the Preamble.

"(4) Subject to the provisions of articles 29 and 30 of the Constitution, the provisions of this Act shall apply to conferment of rights on children to free and compulsory education.

(5) Nothing contained in this Act shall apply to Madrasahs, Vedic Pathshalas and educational institutions primarily imparting religious instruction."

It was asserted that education being a basic right of every child, the State cannot discriminate by denying equal opportunities to the children. Further submissions were made that the State should ensure that common syllabus and common curriculum is introduced to enable every child to have a level playing field as per the mandate in Section 7(6) and 29 of the Act.

Senior Advocate, Mr. Ranjit Kumar, appearing on behalf of the petitioner, Advocate Ashwini Kumar Upadhyay appraised that Bench that Article 21A which was introduced by way of the Constitution (Eighty-sixth Amendment) Act, 2002, came into effect on the same day as the RTE Act, i.e, on 01.04.2010. The Act aimed at providing free and compulsory education to children. However, in 2012, Sections 1(4) and 1(5) were inserted to exclude Madrasahs and Vedic Pathshalas from its ambit.

"Your lordships will find that the Act talks about free and compulsory education. This was passed after Article 21A was enacted on 01.04.2010. This Act was also brought in on 01.04.2010. In 2012, they made an amendment that the Act would not apply to Madrasahs and Vedic Pathshalas."

The Bench asked the petitioner to approach the High Court with his grievances -

"Why don't you go to the High Court."

Mr. Kumar asserted that in the petition there was a larger issue which needed the indulgence of the Apex Court.

The Bench noted that there did not seem to be any urgency, as the provision which was introduced in 2012 remained unchallenged for almost a decade.

"For 10 years nothing happened. In 2010 it came and now you are challenging it."

Mr. Kumar submitted that segregating Madrasahs and Vedic Pathshalas from other institutions imparting education would be in derogation of the objects and purpose of the Act and against the interest of the children.

"When the Act talks about inclusive elementary education, what we are submitting is that by making segregation from the very beginning of the child…you are bringing about in them a religious connotation which should not be. This is derogating the purpose of the Act."

The Bench insisted that the petitioner ought to assert his rights before the High Court, first.

"We will benefit from the order of the High Court. Withdraw and file it before the High Court."

Mr. Kumar reiterated that there were larger constitutional issues pertaining to Articles 14, 15 and 16.

Justice Gavai remarked -

"Are you saying that High Courts are not competent to decide constitutional issues?"

Responding in the negative, Mr. Kumar urged that given the issue at hand, the Apex Court would be able to give quietus to all the aspects of the matter.

The Bench noted that -

"There is no raging controversy. You are the one who has raised it."

Beseeching the Bench to entertain his plea, Mr. Kumar stated that the issue might not be raging, but is, nonetheless, important, looking at what is happening in the country today.

The Bench asked him to withdraw and permitted him to file the writ petition before the concerned High Court.

[Case Title: Ashwini Kumar Upadhyay v Union of India W.P.(C)1382 of 2021]