It’s a blow to the Eknath Shinde government that a two-member Bench of the Bombay High Court has found the February 9 notification, which tampered with the Right to Education Act, unconstitutional and, therefore, untenable. According to the Act, all unaided private schools were required to reserve 25 percent of seats at the entry level for children from economically weaker and disadvantaged sections. It was the responsibility of the state government to pay the schools their tuition fees. However, the Maharashtra government tried to be too clever by half when it exempted private unaided schools situated within a one-kilometre radius from a government-run school from reserving 25 percent of seats for poor children. What’s worse, the students had to apply to the government, which would admit a student only to a government school if there was such a school within a kilometre of his residence.
Parents knew that their children could go directly to a government school for admission, instead of waiting for the government’s decision. Small wonder that there has been a drastic fall in the number of students applying for admission through this process. No doubt, the ordinance was promulgated to favour private schools that did not want to admit such students. On the government’s side, it did not want to pay fees for such students. The purpose of the provision, as envisaged in the RTE Act, was to promote inclusive education. Many school managements were not willing to allow children from poor classes and backgrounds to sit with children from privileged groups. The purpose of the provision when the law was enacted in 2009 was precisely to fight this mindset.
The crux of Chief Justice DK Upadhyaya’s and Justice Arif Doctor’s judgment is that a subordinate law cannot take precedence over the main law, with the ordinance being subordinate to the RTE Act. It is difficult to say whether the 25 percent reservation has been a success, as many children who were admitted were unable to face the competition and dropped out. In fact, there is a strong case for strengthening the provision, instead of weakening it. Private schools that admit 25 percent of poor students and allow them to complete their education in the same schools should be recognised and honoured. Only then will the dream of inclusive education, where poor children are entitled to a level-playing field, become a reality.
