Right to Free Education in Karnataka

by Dolashree Mysoor Posted on February 14, 2013 In W.P. No 18809/2012, Justice H.G. Ramesh of the Karnataka High Court has issued an order stating that all children have the right to free and compulsory education under Article 21 A and not just those who are entitled to reservations under the RTE Act, 2009. He holds that this right is available to all children claiming the right: In view of Article 21(A) of Constitution of India, children between the age group of 6 to 14 years have been provided with free and compulsory education and also quality education not only for 25% prescribed and selected by the State as per the Right to Education Act, but to all children who claim the benefit of fee concession for the academic year 2012-13, though some of them do not claim. The Court has directed the government to hold a seminar on March 10, 2013 with stakeholders to arrive at a reasonable amount for reimbursement of private schools. Through this order, the Court has transferred the obligation of fixing fees from private school management boards to the State: In this regard, it is for the State Government and Central Government to work out the fee that has to be paid by each child between the age group of 6 to 14 years and to see that proper arrangements are made to indemnify the concerned institutions on behalf of the children. Recognizing the fact that many parents may not have the economic capacity to pay fees charged by private schools, and the fact that the reimbursement amounts provided by the state government may be insufficient for the private schools to function, the Court has directed private schools not to refuse entry to class or tests to those students who are already enrolled under the RTE quota. Further, the Court has also directed the Central and state governments to ear-mark

funds for reimbursements to private school. In this order, the Court held that private schools have the right to approach the Court in the event the government fixes an insufficient fee. The order also stressed on payment of teachers salaries in private and minority schools according to fixed pay-scales. The Court has directed that the Teachers Association be involved in the seminar on March 10, 2013 to give voice to the grievances of teachers. It has directed that the seminar deliberate on the salary to be paid to teachers: It is for the State to reimburse the fee fixed by the respective schools and reasonable fee may be worked out in the Seminar after giving opportunity to the management of private institutions, parents association and petitioners herein and also the representatives of the Teachers Association regarding their exploitation in not paying the salary as per the pay-scales fixed. While the Court, being activist has passed this order, it raises two provocative questions 1. Can private schools be mandated to accommodate disadvantage beyond 25% in Karnataka? 2. What is the scope of the right of institutions to administer and charge fees under Article 19 (1) (g) as elaborated by the Supreme Court? I) Obligation to Accommodate Disadvantage: Article 21 A mandates that the right to free and compulsory education is available to all children in a manner which is determined by law. Further, Article 15 (5) states that the State may mandate private unaided educational institutions to accommodate disadvantage for the betterment of socially and educationally backward classes. The RTE Act, 2009 was enacted to implement the right to education under Article 21 A. Sections 12 (1) (b) & (c) of the RTE Act mandates private unaided schools to accommodate disadvantage to a minimum extent of 25% of its total seats. Because this provision can be interpreted in a manner which allows the state to impose reservation obligations on private schools exceeding 25 %, the Court would technically be correct in stating that the right to free education is available to all children. However, Rule 8 (2) of the Karnataka RTE Rules, 2012 states: In respect of a child admitted to a private unaided school over and above the quota for the disadvantaged group and weaker section, there shall not be any claim on reimbursement of such expenditure incurred on childs education in any such school. This rule is rather curious because it states that private unaided schools will not be reimbursed if they accommodate disadvantage over the mandated percentage. Further, this provision applies only to private unaided institutions, it does not include aided institutions within its scope. Therefore, according to Section 12 (1) (c) of the RTE Act read with Rule 8 (2) of the Karnataka RTE Rules schools, private unaided schools will not be entitled to claim reimbursement if they accommodate disadvantage beyond 25%. Rule 8 (2) requires careful re-examination on whether or not it violates Section 12 (1) (c) of the RTE Act, 2009, and in turn, the fundamental right to free and compulsory education guaranteed under Article 21 A.