Social Jurist v. Union of India and Anr.

1. This Public Interest Litigation has been preferred with the following prayers: “i. direct Respondents to undertake all such measures including amendment in Right of Children to Free and Compulsory Education Act, 2009 to address the problems highlighted in the present PIL thereby extending the provisions of Section 12(1)(C) to DG/EWS category students to continue their studies under the same category beyond class VIII upto class XII in the same unaided private schools. 2019:DHC:6791-DB ii. pass any such other or further orders or direction as this Hon'ble Court may in the facts and circumstances of the present case deem fit and appropriate, in favor of the petitioner and against the respondents; and iii. allow the present PIL with cost, in favour of the petitioner.”

2. Having heard the learned counsels for both the sides and looking to the facts and circumstances of the case, it appears that this petition has been mainly preferred for the reason that the benefit of provisions of Section 12(1)(c) of the Right of Children to Free and Compulsory Education Act, 2009 should be extended to disadvantaged group/economically weaker section students beyond Class VIII and upto Class XII in the same school to avoid interruption of studies. This is the main contention of the petitioner.

3. Learned Standing Counsel appearing for the respondent No.1/Union of India has fairly submitted that they have filed a detailed status report of the Ministry of Human Resource Development dated 05.12.2019.

4. Paragraph Nos.2, 3 and 8 of the status report filed by the respondent No.1/Union of India dated 05.12.2019 read as under: “2. It was submitted in an earlier affidavit filed by this Ministry that the issue of extension of Section 12(1)(c) of the RTE Act will be considered by new Government after General Election. In this regard, it would be pertinent to mention here that the New National Education Policy is presently under formulation. The issue of extension of RTE Act beyond elementary level is a major policy decision and has been discussed by the Committee setup for preparing draft of National Policy on Education.

3. The Committee constituted for formulation of the draft of National Education Policy (NEP) chaired by Dr. K. Kasturirangan submitted its report on May 31, 2019 to the Ministry of Human Resource Development. Several observations and recommendations have been suggested in the draft policy, including regarding the Right to Education Act, 2009 (RTE Act): Currently, the RTE Act provides for free and compulsory education to all children from the age of six to 14 years. The draft Policy recommends extending the ambit of the RTE Act to include early childhood education and secondary school education. This would extend the coverage of the Act to all children between the ages of three to 18 years. The relevant Paras of the draft National Education Policy (NEP) related to RTE Act, 2009, are as follows:- "Para- 3.13 of the Draft Policy:- Extension of the RTE Act to include secondary education: The availability of free and compulsory quality secondary education (Grades9-12; typically ages 14-18) will be included as an integral part of the RTE Act to ensure that, by 2030, all students enrol and participate in quality school education through Grade12. “ Para-8.4.[1] of the Draft Policy:- Extension of the RTE Act, 2009 to include early childhood education through secondary school education: To ensure that all students, particularly students from under-privileged and disadvantaged sections, have a guaranteed opportunity to participate in high quality schooling from early childhood education (age 3 onwards) through higher secondary education (i.e., until Grade 12) - both today considered essential for a young person's educational development and attainment — the right to free and compulsory education as guaranteed by the RTE Act will be extended downwards to include up to three years of early childhood education prior to Grade 1, and upwards to include Grades 11 and 12. In other words, there will be government provision for free and compulsory education for all children and adolescents between the ages of 3 and 18, from the full foundational stage through the full secondary stage. The RTE Act must be responsive and enabling - it must focus more on educational outcomes and less on inputs. 8.4.[2] Review of the RTE Act: The RTE Act will be reviewed comprehensively in light of this policy, to enable the policy, and at the same time to improve it on the basis of the experiences and learnings of the past decade: a. The overemphasis on inputs, and the mechanistic nature of their specifications — physical and infrastructural — will be changed and the requirements be made more responsive to realities on the ground, e.g. regarding land areas and room sizes, practicalities of playgrounds in urban areas, etc. These mandates will be adjusted and loosened, leaving suitable flexibility for each school to make its own decisions based on local needs and constraints, but without in any way compromising on the requirements of safety, security, and a pleasant and productive learning space. b. Educational outcomes will be given due importance and will be added adequately in the assessment of schools. c. Clause 12(1)(c) will be reviewed in light of this policy and in light of any positive as well as negative experiences it has encountered over the past decade.  In a basic sense, 12(1)(c) is extremely well intentioned, aiming to bolster the inclusion of students from socio-economically disadvantaged backgrounds in private schools. However, the clause is not quite in tune with the principle of autonomy of institutions (including for student admission) in this Policy, which empowers schools and trusts them to do the right thing. In addition, in practice the clause has been implemented with very mixed effect, including opening up a variety of possibilities for corruption, the manufacturing of fake student numbers and certificates, increases in fees (including fees collected under other guises), lobbies to attain minority status to avoid the clause, and more. Furthermore, the large amounts of money and effort spent on implementing this clause may be more effectively spent, e.g. by investing the money on the public schooling system - particularly in disadvantaged areas - which would directly support many more students from underprivileged backgrounds in a sustainable manner.  If the review suggests that 12(1)(c) be kept as it is, then it must be better enforced, in the following manner. i. Admissions of students from disadvantaged sections, under Clause 12(1)(c), will be fairly and fully implemented in all private schools. A transparent common public IT platform-based system, as is already being used in some States, should be developed and used for all such admissions by all schools. All schools must receive the requisite funding guaranteed to them on time and in a punctual manner so as not to disrupt the school's educational activities. ii. Schools receiving support from 12(l)(c) will make full and specific efforts to integrate and welcome students thus admitted into the school — there shall be no overt or covert discrimination. Extra support to all students who may be falling behind, or starting out behind, will be provided by the schools, in a natural and kind manner, e.g., through peer tutoring and remedial instructor programmes. Credible systems will be made available for grievance redressal in case of discrimination or the charging of additional or hidden fees, etc.; this may, for example, be implemented through the SSRA grievance redressal system. iii. Misuse of certain specific provisions/clauses of the RTE that have occurred over the past decade will be stopped by effective enforcement, administrative, and legislative measures. While there may be others, two prominent misuses are: (i) Clause 12(1) (c) may have been misused by certain private schools by inflating admission numbers of children from socio-economically disadvantaged groups, by charging fees to these students over and above the State reimbursement, and/or by treating these students in a discriminatory manner; and (ii) Judicial exemption, granted by the Supreme Court, may have been misused by certain schools, by claiming minority status, while in reality their school is not serving primarily that minority group, as reflected in the proportion of the schools' students from that minority group. d. Schools such as gurukulas, madrasas, pathshalas, home schools, alternative schools, etc. will be allowed and enabled to deliver a quality education and participate in the education system (e.g., in BOAs). Specific norms will be developed (including with respect to educational outcomes), so that a wide variety of schools can be recognised and enabled to deliver a quality education; these norms will be minimal but essential and used with great probity, and will be strictly enforced to prevent misuse. e. The recent amendments to the RTE Act on continuous and comprehensive evaluation and the no detention policy must be reviewed. This Policy states that there should be no detention of children in Grades up to 8; instead, schools must ensure that children are achieving age-appropriate learning levels and are receiving the relevant extra support (e.g., through remedial support programmes such as the NTP and RIAP) in every instance where it is required. f. There may be better provision for third party assessment of student learning in all schools including private schools. "

8. Consequently, the Ministry is in the process of finalisation of National Education Policy based on the suggestions and inputs received from various stakeholders thereon.”

5. In view of the aforesaid stand taken by the respondent No.1, the above stated issue of extension of free education to disadvantaged group/economically weaker section even after attaining the age of 14 years or beyond Class VIII and upto Class XII in the same school is under active consideration by respondent No.1. It will be a major policy decision to be taken by the respondent No.1 which involves financial aspect.

6. We, therefore, expect from respondent No.1 that the said policy decision of extension of free education under the of the Right of Children to Free and Compulsory Education Act, 2009 to children of disadvantaged group/economically weaker section even after attaining the age of 14 years or beyond Class VIII upto Class XII in the same school, would be taken at the earliest.

7. With these observations, this writ petition is hereby disposed of.

CHIEF JUSTICE C.HARI SHANKAR, J DECEMBER 09, 2019 kks