INTRODUCTION
On July 14, 2021, the News Minute reported that admissions under the RTE Act in Karnataka have declined since 2019. One of the most prominent reasons suggested for this decline is Karnataka Government’s RTE Rule that a child cannot be admitted under the RTE quota of a private unaided school if he/she has a government or government-aided school in his/her locality. Poor quality of education in many government schools have discouraged parents from enrolling their wards in these schools. The Karnataka High Court (‘HC’) heard the PIL against this Rule in Education Rights Trust v. Government of Karnataka (‘Education Rights Trust’). On May 31, 2019, it passed the judgment upholding Karnataka’s Education Rule which denies children equal access to quality education. The judgment shows that the implications of the RTE Act on private unaided schools are not entirely understood. As the appeal in the Education Rights Case is currently pending before the Supreme Court (‘SC’), it has the obligation to clear this confusion regarding the applicability of the RTE Act.
S.12(1)(c) of the RTE Act provides that private unaided schools must reserve 25% of their seats for children from disadvantaged and weaker sections at the Grade-1 level. The children thus admitted are entitled to receive free education, with the Government offering to reimburse private schools an amount equivalent to the Government’s own annual per-child expenditure. The manner in which these admissions should occur has to be determined by the rules framed by state governments.
In furtherance of this, Karnataka Government framed secondary legislation under the RTE Act. Rule 12(2) of the Karnataka Education Rules, 2012, defined ‘school’ as per the definition given in S.2(n) of the RTE Act to mean any recognised school (Government controlled, Government aided or private unaided) which imparts elementary education. However, the Amendment of January 30, 2019, stated that private unaided schools would not be required to reserve seats and provide admission to the disadvantaged children if a public school is present in the neighbourhood. The State Government justified this Amendment by arguing that S.6 of the RTE Act, when read with S.12(1)(c), shows that the obligation of providing 25% reservation is “transitory”. S.6 requires the State to establish public schools in every neighbourhood within three years of enactment of the RTE Act and S.12 provides for 25% reservation in private unaided schools. Combining these two provisions, the State Government argued that the obligation of reservation was only for the time when no public schools were present in the neighbourhood. The HC accepted this argument and upheld the constitutionality of the Amendment.
This article argues that Rule 12(2) of the Karnataka Education Rules goes against the legislative intent with which the parent legislation, that is, the RTE Act was enacted. Hence, the SC has the obligation to prevent the state legislature from diluting the spirit of the RTE Act.
THE KARNATAKA RTE RULES: A GRAVE DISREGARD TO THE LEGISLATIVE INTENT BEHIND THE RTE ACT
Issues regarding statutory interpretation gain significant importance in a democratic society where legislation acts as a primary tool of governance. Hence, courts must seek to give effect to the Legislature’s intent.
This sub-part interprets the RTE Act literarily, purposively and judicially and contends that the Act intended the obligation on private unaided schools of reserving 25% seats to be permanent and not “transitory”.
- Literal interpretation of the RTE Act
S.12(1)(c) of the RTE Act uses the word ‘shall’ to impose an obligation on private unaided schools to reserve seats for backward and economically weaker students. The SC has interpreted ‘shall’ in a way that leaves no discretion. Hence, this is a mandatory obligation imposed on private unaided schools. However, the HC read S.12(1)(c) with S.6 to conclude that this obligation is only till the period no public school is established in the neighbourhood. The HC failed to appreciate that these two provisions operate in entirely different domains and are not interlinked to each other in any way.
The purpose of incorporating S.6, as understood from the RTE Act’s Clarificatory Memorandum, is to provide universal access to elementary education. Not having schools within reasonable reach of every child may result in them not being formally enrolled in schools or not completing their schooling, thereby defeating the purpose of the RTE Act. Hence, S.6 ensures that children have access to quality elementary education within their neighbourhood. Whereas, S.12(1)(c) provides for the responsibility of private schools to provide free and compulsory education.
These sections are independent of each other. It would be wrong to conclude that obligation of reservation on private schools is “transitory” and omitted by the Government’s duty of establishing a public school in every neighbourhood. However, to conclusively prove this point, reference has to be made to the Act’s purposive interpretation.
2. Purposive Interpretation of the RTE Act
The Statement of Objects and Reasons attached to the RTE Bill, 2008 lays down that this legislation aims at providing inclusive elementary education which is essential for achieving the values of equality, democracy and humane society. It was also stated that providing free and compulsory quality education to disadvantaged children is the responsibility of both Government and Private unaided schools.
The Clarificatory Memorandum also mentions that the Act seeks to do away with disparate and inequitable schooling which reinforces the existing socio-economic hierarchies. According to it, schooling must act as a means of inclusion and social cohesion. It was keeping this long-term goal in mind that the figure was established at 25%. It is a proportion substantial enough for these children to feel at home in private schools. Any figure less than that would jeopardise the long-term aim of ensuring diversity, inclusivity, social justice and equality in society.
If Legislature wanted the obligation on private schools to be dependent on the presence or absence of public schools, it would never have laid importance on the long-term aim of achieving social cohesion and diversity. Further, not only legislative history but also the judicial interpretation of S.12(1)(c) proves this point.
3. Judicial Interpretation of the RTE Act
The constitutionality of the RTE Act and specifically S.12(1)(c) was challenged in the Society for Un-aided Private Schools of Rajasthan. The SC upheld the obligation of 25% reservation on private unaided non-minority education institutions as reasonable and constitutionally valid. Appreciating the scope of Articles 21 and 21A, the Court held that the Right to Education is “child-centric and not institution-centric” and has been enacted to remove all socio-economic barriers which interrupt access to education. Justice Radhakrishnan highlighted that private unaided education institutions are roped in not because of lack of sufficient Government-run or Government-aided schools but because of the principle of social inclusion and for providing satisfactory quality education. The majority also acknowledged that the Act does not intend to guarantee just education but envisages ensuring ‘quality’ elementary education irrespective of which institution is providing education.
Hence, the RTE Act was aimed ensuring that all children get access to quality education from whichever institution it is. Depriving children of the right to study in private schools, even when they provide better quality education, re-creates social barriers, makes the Act more institution-centric than child-centric and goes against both the judicial interpretation and the legislative intent.
CONCLUSION
Time and again courts have recognised that private schools provide quality education and, in many cases, better quality education than Government Schools. The Delhi HC highlighted in 2015 that the Indian education system is such that the privileged who can afford private education have access to high-quality elite schools. Whereas, the marginalised and poor are left with ill-equipped schools established by gram panchayats, municipalities and the Government. This deplorable condition of education will be further exacerbated by interpreting the RTE so narrowly. Further, it is not just in Karnataka that S.12(1)(c) of the RTE Act has been interpreted in such a narrow sense. S.7(4) of the Punjab and Haryana Rules also states that the obligation on private schools to provide reservation is only until no government-controlled or aided school is present in the neighbourhood. Hence, the SC needs to end this confusion once and for all by clarifying that the legislative intent behind the RTE Act was always to ensure long-term inclusion, integration and social cohesion; which will be negated by such Rules.
