Point-wise update on the final hearing in the Supreme Court regarding the importance of TET in matters of promotion and the impact of the RTE Act on minority schools.

Point-wise update on the final hearing in the Supreme Court regarding the importance of TET in matters of promotion and the impact of the RTE Act on minority schools.

Rahul Pandey Avichal 

In the first half of the hearing today, the issue discussed was whether the entire RTE Act apply or not. The Hon’ble Bench questioned the arguing counsels on their contention that how can the entire RTE Act not apply. 

The Ld. AG argued that question of referring to a larger bench is a different view, it is to settle the Argument. But not every case like this becomes subject to art. 142. On facts there is no need to go to a larger bench. Standards of education are recognised under the RTE Act. So there’s no disagreement on that.

Justice Dipankar Dutta put a question to Mr. Chacko, Senior Advocate that “I am a child claiming my right u/a 21A because your institution is the only institution near my neighbourhood. Why do you want me to travel to another village?” To this Mr. Chacko replied that Missionaries started schools in these villages and started schools for such children. Mr. Chacko also answered a question put by Justice Manmohan that if a child belonging from EWS community then it will not disturb Sec 12(1)(C) of the RTE Act. 

Justice Dutta also said that why can’t minority institutions educate the children from minorities for free. Such questions are not answered in any judgment. This is why we put this to the arguing counsel, Mr. Chacko. Justice Manmohan asked if a child belonging from EWS community can disturb Sec 12(1)(C), answer by Mr. Chacko is No. Justice Manmohan added that it is a 25% quota now. 

The discussion further navigated through TMA PAI, PA Inamdar, Azeez Basha, Dawoodi Bohra, AMU v Naresh Agarwal, Gajendra Gadkar. As per Mr. Chacko, only the Bench’s  interpretation is required, reference is not required. Gajendra Gadkar, 1965 said to refer it to the Chief Justice and let the Chief Justice decide. 

Ld. Attorney General explained that Article 29(2) is a logical conclusion to Article 29(1) that the state will not discriminate. It has nothing to do with a national concern. 29(2) cannot be expanded at all. Art. 29 will operate on entire different area.

Issues were framed in the second half. Two of Mr. Gopal’s issues were already answered in separate judgments in detail. Mr. Chacko insisted on not referring the matter to a larger Bench and was later asked to give a written note in a pen drive. 

Mr. Natraj.

- Written note will give later. Compilation of judgments submitted. 

1. Whether the eligibility criteria laid down by the NCTE, minimum qualification will be applicable to institutions across the board. And whether it applies to promotions also is the incidental issue. 

2. The effect of para 55 of Pramati, that is how it is to be construed and interpreted. The consequences of non compliance of minimum qualification, and; Eligibility criteria or requirement of TET. Irrespective, this is indispensable and non negotiable. It applies to promotion also. 

3. Para 55 Pramati, that does not lay down the conditions so far as the LGBT is concerned. 

4. By applying the principles of inversion which ‘helps in determining the ratio dicendi by reversing/ negating the legal proposition so proposed to understand if the decision would change’.

Some issues were elaborated upon: 

- First issue: Already a lot of judgments. There are two more judgments. 2007 SCC, 2007 SCC 705. Paras 19, 20 and 21. Para 19 they refer to TMA Pai. Para 20 to see reproduction of TMA PAI. Question of uniformity. Also read Para 65. The right to education does not depend upon the nature of the institution. Cannot deprive the right of art 21A to the students studying in institutions.

- Second issue: The eligibility or the requirement of studying in an educational institution does not depend upon religion. When it comes to qualification issue it equally applies to promotions also. The same principle applies in promotions also. The promotions are governed by the rules. 

You have to read the judgment as a whole and the law is well settled that the judgment cannot be read as a statute. So, the binding part of judgment is ratio. Unless it is ratio of the judgment there is no binding part at all. Ratio is absolutely necessary. Lord Chipman Grey, inversion test which helps in determining the binding part of a judgment( ratio dicendi).

Moot question is that eligibility was not an issue. TET was never an issue, affirmed by the Justice Manmohan.  Ratio is that 2009 act does not apply to the minority institution, this is how this has been interpreted. 

Justice Dutta added that on reading Para 55 placit f: 2009 Act is ultra vires. So Reading para 55 as it is.

By the end of Mr. Natraj’s submissions, it came to light that Pramati has been referred to a larger bench having citation- 2014 8 SCC 272 page 1. However, it was further clarified by the Hon’ble Bench that here only one issue is referred to the larger bench.

(The Bench asked the Counsels to submit a  physical copy and a soft copy of their submissions in a three page written note.)

🚀 Rahul Pandey 'Avichal'

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