New Delhi: A constitutional bench of the Supreme Court will now hear the challenge to Article 15(5) of the constitution, which places an obligation on unaided private schools to reserve 25 percent seats for students from socially and economically weaker sections of society.

The provision, under the Right to Education Act (RTE), was challenged by managements of private schools in various states. Hearing the plea, the apex court bench of Justice K.S. Radhakrishnan and Justice Dipak Misra Friday directed court registry to place the matter before the Chief Justice for listing before an appropriate bench.

The directive was made after a submission by senior counsel Mukul Rohtagi, assisted by Ankit Goyal, representing the Karnataka-based Pramati Educational and Cultural Trust and others, that a larger bench hear the matter in view of the court's earlier Sep 6, 2010 order.

Hearing a petition by the Society for Unaided Schools of Rajasthan, the apex court bench of Chief Justice S.H. Kapadia (since retired), Justice K.S.Radhakrishnan and Justice Swatanter Kumar (also retired) had said Sep 6, 2010: "Since the challenge involved raises the question as to the validity of Articles 15(5) and 21-A of the Constitution of India, we are of the view that the matter needs to be referred to the constitution bench of five Judges."

The apex court Oct 8, 2012, issued notice to the centre on a petition that sought equal status for unaided educational institutions at par with unaided minority institutions in reserving 25 percent seats for socially and economically backward sections.

The petition contended that Article 15 (5) was ultra vies of the basic structure of the constitution as it discriminates between two similarly placed categories of educational institutions on the basis of their minority and non-minority status.

Clause 5 of the Article 15 says "(5) Nothing in this Article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes insofar as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30."

Article 19(1) (g) in the constitution provides for freedom to practice any profession, occupation, trade or business.

The petition has also contested the validity of the Article 21-A which says that "the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine."

Seeking the examination of the power of Article 15(5), the petition has said that the constitution envisages equal status for minority and majority, and it would be against the schema of the constitution to put minority on a higher pedestal.

The petition said that Article 30, which provides for the right of minorities to establish and administer educational institutions, was in the nature of protecting their rights and did not confer any right beyond those available to non-minorities (majority community).

On April 12, 2012, an apex court upheld the constitutional validity of the Right to Education (RTE) Act that mandates unaided private schools to keep 25 percent seats for students from economically and socially weaker sections of society. The petition seeks to challenge that verdict.

The then Chief Justice S.H. Kapadia and Justice Swatanter Kumar, by majority judgment, upheld the constitutional validity of Section 12(1) (C) of the RTE Act that provides that seat quota.

While upholding the Section 12(1) (C) of the RTE Act, the majority judgment exempted unaided minority educational institutions from such quota but held back same exemption from un-aided non-minority institutions.

However, in a separate judgment Justice K.S. Radhakrishnan held that the mandate under the RTE Act providing for reservation of seats was not constitutionally valid, and thus the unaided schools, whether majority or minority, could not be compelled to earmark 25 percent seats in their institutions.

Justice Radhakrishnan read down the Section 12(1)(C) of the RTE Act in respect of the unaided non-minority and minority institutions, and held that it can be given effect to "only on the principles of voluntariness, autonomy and consensus and not on compulsion or threat of non-recognition or non-affiliation."

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