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GS Paper: GS2-01.Indian Constitution-Historical underpinnings & evolution; Features, amendments, significant provisions, basic structure of Constitution

  • [pib] PM marks 5 years of abrogation of Articles 370 and 35(A)

    Why in the News?

    The Prime Minister recalled the Parliament’s 5-year-old decision to abrogate Articles 370 and 35(A), calling it a watershed moment.

    About Articles 370 and 35(A) of the Indian Constitution

    [1] Article 370: 

    Description
    Provision Grants special autonomous status to the state of Jammu and Kashmir.
    Nature Initially intended as a temporary provision, subject to eventual change or abrogation.
    Powers of State Allowed J&K to have its own Constitution and autonomy over internal matters except defense, foreign affairs, finance, and communications.
    Presidential Order President of India could extend or modify the application of Indian laws to J&K with the concurrence of the state government.
    Autonomy Details Provides a degree of autonomy to the state and permits the state to give some special privileges to its “permanent residents”.
    Emergency Provisions Emergency provisions are not applicable to the state on the grounds of “internal disturbance” without the concurrence of the State.
    State Boundaries Name and boundaries of the State cannot be altered without the consent of its legislature.
    Separate Institutions State has its own constitution, a separate flag, and a separate penal code (Ranbir Penal Code).
    Assembly Duration Duration of the state’s Assembly is 6 years, unlike five in the rest of India.
    Parliamentary Jurisdiction
    • Indian Parliament can pass laws regarding J&K in the matters of defense, external affairs, and communication only.
    • Any other law formed by Union will only be applicable in J&K by presidential order if it concurs with the state assembly.
    Abolishment Condition President may, by public notification, declare that this Article shall cease to be operative but only on the recommendation of the Constituent Assembly of the State.
    Abolishment In August 5, 2019, through a Presidential Order and a resolution passed by the Indian Parliament.
    Impact of Abrogation
    • J&K’s special status was revoked.
    • It was reorganized into two Union Territories: Jammu and Kashmir, and Ladakh.

     

    [2] Article 35A:  

    Description
    Provision Empowers the J&K legislature to define permanent residents of the state and provide them with special rights and privileges.
    Insertion Added to the Constitution through a Presidential Order in 1954.
    Permanent Residents Defined by the state as those who were state subjects on May 14, 1954, or have been residents for 10 years, and lawfully acquired immovable property.
    Special Rights Permanent residents were given exclusive rights to employment under the state government, acquisition of immovable property in the state, and scholarships.
    Constitutionality Debate Debated on the grounds that it was not added via an amendment procedure.
    Criticism Criticized for being discriminatory and creating a sense of separation from the rest of India.
    Revocation Along with Article 370, Article 35A was effectively nullified on August 5, 2019.

     

    PYQ:

    [2016] To what extent is Article 370 of the Indian Constitution, bearing marginal note “Temporary provision with respect to the State of Jammu and Kashmir”, temporary? Discuss The future prospects of this provision in the context of Indian polity.

  • Why did courts revisit bar on sub-quotas?     

    Why in the News?

    A seven-judge Bench of the Supreme Court has ruled that States can subdivide Scheduled Castes (SC) into groups to allocate sub-quotas within the Dalit reservation.

    Will the Weaker Among Dalits Get Representation from Further Sub-Classification?

    • The Supreme Court’s ruling allows states to create sub-classifications within the SC category, which is expected to enable states to earmark sub-quotas for the most marginalized sections of Dalits.
    • This decision aims to ensure better representation for weaker groups within the SC community who have historically been underrepresented and have not benefitted adequately from existing reservations.
    • The ruling emphasizes that treating SC communities as a homogeneous group undermines the objective of reservations, as there are significant differences in advancement and discrimination among various SC communities.

    Why Did the Supreme Court Overrule a Five-Judge Decision of 2004?

    • The 2004 judgment in E.V. Chinnaiah vs. State of Andhra Pradesh held that SCs constitute a single homogeneous class and that any sub-classification was unconstitutional, as it violated Article 341, which empowers the President to notify the list of SCs.
    • The recent seven-judge Bench, led by Chief Justice D.Y. Chandrachud, found this ruling to be incorrect, stating that SC communities are not homogeneous and that there are inter se differences among them.
    • The majority opinion argued that the act of notifying a list of SCs does not create a uniform class, and sub-classification is permissible based on “intelligible differentia” and should have a rational nexus to the purpose of doing it.

    What are the views on Creamy layer exclusion?

    • The concept of the creamy layer, which excludes more advanced members of a community from benefiting from affirmative action, is currently applicable only to Other Backward Classes (OBCs) and has not been extended to Dalit communities.
    • Justice B.R. Gavai, in a separate opinion, emphasized the need to identify and exclude the more advanced among SCs from affirmative action benefits, arguing that treating all members equally disregards the principle of equality.
    • The opinions regarding creamy layer exclusion do not constitute a directive for the government to implement this concept for SCs, as the issue was not directly addressed in the current case.

    Do the Judges’ Opinions on this Constitute a Direction to the Government?

    • The judges’ opinions on sub-classification and creamy layer exclusion provide a legal framework for states to follow but do not serve as a direct mandate for the government to implement changes.
    • The ruling establishes that states have the authority to sub-classify SCs for the purpose of extending reservation benefits, but the specific implementation details and parameters for creamy layer exclusion remain open for further consideration and do not compel immediate action from the government.

    Way forward: 

    • Implementation Framework for Sub-Classification: The government should establish a comprehensive framework that outlines the criteria and process for sub-classification of SCs.
    • Addressing Creamy Layer Exclusion: The government should consider developing specific criteria for identifying the “creamy layer” within SCs, similar to the criteria used for OBCs.

  • The case for a Legal Advisory Council  

    Why in the news?

    Legal insights from well-structured think tanks can be crucial in clarifying the true intent of specific legislation for the government.

    Scope to Review the Process of Legal Consultancy

    • Need for Structured Legal Inputs: The handling of legal issues by the National Democratic Alliance has been inadequate. There is a need for continuous, informed, and empirically valid legal inputs from structured think tanks to clarify legislative intents.
    • Proposal for a Legal Advisory Council (LAC): Establishing a LAC akin to the Economic Advisory Council could provide the Prime Minister with timely legal analysis and insights, helping to preempt legal challenges and enhance the legislative process.

    Need of Think Tank: 

    • Expert Legal and Policy Analysis: Well-structured think tanks provide informed and empirical legal analysis that can enhance the legislative process.
    • Facilitation of Evidence-Based Decision Making: Think tanks can contribute to evidence-based decision-making by conducting research and providing data-driven insights on complex legal and social issues.

    Recent Legal Issues and the Puttaswamy Case Judgment

    • Electoral Bonds Scheme: The Supreme Court recently ruled the electoral bonds scheme unconstitutional for violating voters’ right to information. This decision highlights the importance of conducting proportionality tests before implementing laws to balance privacy rights with transparency.
    • Aadhaar Act Intervention: A similar legal examination prior to the implementation of the Aadhaar Act could have prevented the Supreme Court’s intervention in the K.S. Puttaswamy v. Union of India case, which addressed privacy concerns.
    • Transporter Strike: Concerns over the hit-and-run provisions in the Bharatiya Nyaya Sanhita, 2023, led to nationwide protests by transporters, indicating the need for thorough legal viability assessments before introducing potentially problematic legislation.

    Anticipating Challenges

    • Proactive Legal Analysis: The proposed LAC would conduct legal analyses of issues referred by the government and perform suo motu research on contemporary legal matters, allowing for proactive identification of potential legal challenges.
    • Engagement with National Law Universities: Leveraging the expertise of national law universities can enhance the legal consultancy process, ensuring that laws are constitutionally viable and socially acceptable. Regular research inputs from these institutions can aid in formulating better legislation and addressing legal challenges before they escalate.

    Way forward: 

    • The LAC should comprise legal experts, eminent jurists, academicians, and researchers with specializations in various fields frequently legislated upon by the government, such as criminal law, trade law, international law, business laws, and taxation laws.
    • Establish formal mechanisms for collaboration, such as the Committee for Reforms in Criminal Laws at the National Law University Delhi set up by the Ministry of Home Affairs, to facilitate the exchange of ideas and research between the government and academia.

  • SC to examine acquitted man’s ‘Right to be Forgotten’: What is this right, and how have courts ruled earlier?    

    Why in the News?

    Last week, the Supreme Court agreed to hear a case that could define the scope of the “Right to be Forgotten” referred to in European privacy law as the “Right to Erasure” in India.

    What is the ‘Right to be Forgotten’?

    • The right to be forgotten allows individuals to remove or de-index their personal information from the internet if it infringes on their right to privacy. It is based on the principle that personal data should be removed when it is outdated, irrelevant, or no longer necessary.
    • Affirmed by the Court of Justice of the European Union (CJEU) in the “Google Spain case” (2014), which ruled that search engines must remove data if it is inadequate, irrelevant, or excessive in light of the time elapsed.
    • Under the EU’s General Data Protection Regulation (GDPR), Article 17 describes the right to erasure, reflecting the concept of informational self-determination.

    How is this ‘Right’ interpreted in India?

    • Absence of Statutory Framework: India lacks specific legislation explicitly addressing the right to be forgotten.
    • Judicial Interpretation: The 2017 Supreme Court ruling in Justice K.S. Puttaswamy v. Union of India recognized the right to privacy as a fundamental right. Justice S.K. Kaul’s concurring opinion suggested that the right to be forgotten involves removing personal data that is no longer necessary or relevant.
    • Judicial Guidelines: Justice Kaul outlined valid justifications for overriding this right, including freedom of expression, legal compliance, public interest, and research purposes.

    How have Courts ruled on the Issue?

    • Rajagopal vs. State of Tamil Nadu (1994): The Supreme Court recognized a “right to be let alone” but differentiated it from public records, including court decisions. Once something becomes public, privacy rights are diminished.
    • Dharamraj Bhanushankar Dave vs. State of Gujarat (2017): Gujarat HC refused to remove details of an acquittal, asserting that court orders should remain public.
    • The Registrar General (2017): Karnataka HC protected the name of a petitioner in a sensitive annulment case, aligning with trends in Western jurisdictions.
    • Delhi HC (2021): Extended the right to be forgotten to criminal cases, allowing details of an acquittal to be removed from search results to protect the petitioner’s career prospects.
    • Orissa HC (2020): Noted the need for a broader debate on the right to be forgotten, particularly concerning “revenge porn” and online content.

    Way forward: 

    • Legislative Framework Development: India should consider drafting comprehensive legislation that explicitly addresses the right to be forgotten, aligning with international standards while balancing privacy, freedom of expression, and public interest.
    • Judicial and Policy Clarity: The Supreme Court’s upcoming ruling should aim to establish a clear legal precedent on the right to be forgotten, ensuring consistency across lower courts and aligning with global practices.

    Mains PYQ: 

    Q Examine the scope of Fundamental Rights in the light of the latest judgement of the Supreme Court on the Right to Privacy. (2017)

  • President appoints six new Governors  

    Why in the News?

    President Droupadi Murmu has appointed six new Governors and reshuffled three others.

    New appointments:

    Name New Position
    Om Mathur Governor of Sikkim
    K. Kailashnathan Lieutenant Governor of Puducherry
    Santosh Kumar Gangwar Governor of Jharkhand
    Jishnu Dev Varma Governor of Telangana
    Ramen Deka Governor of Chhattisgarh
    C.H. Vijayashankar Governor of Meghalaya
    Haribhau Kisanrao Bagde Governor of Rajasthan

    About the Office of Governor and his/her Appointment

    Details
    Role
    • Constitutional head of a state, similar to the President at the central level.
    • Exists in states, while lieutenant governors and administrators are in union territories.
    • Independent constitutional office, not subordinate to Central government.
    Articles Articles 153 to 167 in Part VI of the Constitution deal with the state executive
    Part of State Executive Consists of the Governor, Chief Minister, Council of Ministers, and Advocate General
    Borrowed Office
    • From the Government of India Act of 1935.
    • Canadian model adopted: Governor appointed by President by warrant under his hand and seal.
    Dual Role
    • Chief executive Head of the States (nominal).
    • Agent of the central government.
    Qualifications
    • Constitutional: Citizen of India, 35+ years old.
    • Conventional: Outsider to the state, President consults the Chief Minister.
    Oath
    • Administered by the Chief Justice of the state High Court (or senior-most judge available)
    • Swears to execute office faithfully, preserve the Constitution, and serve the people
    Term of Office
    • No fixed term, holds office for 5 years subject to President’s pleasure
    • Eligible for reappointment.
    • Can be transferred or hold office beyond term until successor assumes charge
    Removal
    • Can resign by addressing the President
    • Can be removed by the President at any time without specified grounds
    • Chief Justice of state high court may temporarily discharge functions in contingencies
    Additional Functions
    • Acts on advice of Chief Minister and Council of Ministers
    • Holds executive power, legislative power (to some extent), and discretionary power
    • Functions as Chancellor of state universities, where applicable
    Reforms  stipulated by Sarkaria Commission (1988)
    • Governor should be appointed by the President after consulting the Chief Minister.
    • Should be a person of eminence, not belonging to the state.
    • Should not be removed before term completion except in rare circumstances.
    • Act as a bridge between the center and state.
    • Exercise discretionary powers judiciously.

     

    PYQ:

    [2013] Which one of the following statements is correct?

    (a) In India, the same person cannot be appointed as Governor for two or more States at the same time

    (b) The Judges of the High Court in India are appointed by the Governor of the State just as the Judges of the Supreme Court are appointed by the President

    (c) No procedure has been laid down in the Constitution of India for the removal of a Governor from his/her post

    (d) In the case of a Union Territory having a legislative setup, the Chief Minister is appointed by the Lt. Governor on the basis of majority support.

  • States have the unlimited right to tax mineral-rich lands    

    Why in the News?

    The Supreme Court delivered a significant 8:1 judgment affirming that State Legislatures have the power to tax mining lands and quarries, independent of the Parliament’s Mines and Minerals (Development and Regulation) Act of 1957 (MMDR Act).

    About the verdict given by SC      

    • Judgment Overview: The majority opinion, authored by Chief Justice D.Y. Chandrachud, stated that states derive their taxing authority from Article 246 and Entry 49 of the State List, which pertains to taxation on lands and buildings.
    • Distinction Between Tax and Royalty: The Court clarified that royalty paid for mining leases is not considered a tax. 
      • Royalty is viewed as a contractual obligation between the mining lessee and the lessor, thus not subject to the same regulatory framework as taxes.
    • Parliamentary Limitations: The judgment emphasised that the MMDR Act cannot impose limitations on state taxation powers regarding mines and quarries. The Court rejected the argument that Entry 50 of the State List allowed Parliament to impose restrictions on state taxes related to mineral rights.
    • Dissenting Opinion: Justice B.V. Nagarathna provided a dissenting opinion, cautioning that allowing states to tax under Entry 49 could lead to double taxation and undermine the specific provisions of Entry 50.

    About the Mines and Minerals (Development and Regulation) Act of 1957

    • The MMDR Act was enacted to regulate the mining sector in India, ensuring the development and conservation of minerals while balancing the interests of the state and the public.
    • The Act provides a comprehensive framework for the licensing and regulation of mines, including provisions for the fixation of royalties on mineral extraction.
    • The Act has been a point of contention regarding the extent of state powers to impose taxes on mineral rights, with arguments that it limits state legislative competence in this area.
    • The Supreme Court’s recent ruling clarifies that the MMDR Act does not restrict state powers to tax mineral rights, thus resolving conflicts arising from previous interpretations of the Act.

    On the division of the power

    • Constitutional Framework: The Constitution of India delineates the distribution of powers between the Centre and the States through the Seventh Schedule, which includes the State List and the Union List.
    • Entry 49 and Entry 50: Entry 49 allows states to levy taxes on lands and buildings, while Entry 50 pertains specifically to taxes on mineral rights, subject to limitations imposed by Parliament.
    • Judicial Clarity: The Supreme Court’s judgment clarifies that states can exercise their taxing powers under both Entries 49 and 50 without interference from the MMDR Act, reinforcing the states’ authority over local resources.

    Conclusion: The Supreme Court’s ruling affirms that states can tax mining lands independently of the MMDR Act, highlighting their authority under Article 246 and Entry 49, despite dissenting concerns about double taxation.

    Mains PYQ:

    Q Though the federal principle is dominant in our Constitution and that priniciple is one of its basic features, but it is equally true that federalism under the Indian Constitution leans in favour of a strong Centre, a feature that militates against the concept of strong federalism. 15M

  • Is immunity for the President and Governors absolute?  

    Why in the news?

    The Supreme Court has agreed to examine if the immunity granted to the President and Governors under Article 361 violates fundamental rights and constitutional principles.

     What is the case?  

    • The Supreme Court is examining a petition filed by a contractual woman employee of the West Bengal Raj Bhavan, who has accused Governor C.V. Ananda Bose of sexual harassment and molestation.
      • The petitioner argues that the “absolute immunity” granted to the Governor under Article 361 of the Constitution undermines her fundamental rights and the fairness of the legal process.

    Immunity Under Article 361: 

    • Article 361 provides immunity to the President and Governors from being answerable to any court for acts performed in their official capacity.
    • Specifically, clause (2) of Article 361 states that no criminal proceedings can be initiated or continued against the President or a Governor during their term of office. The petitioner contends that this immunity should not apply to illegal acts that violate fundamental rights.
    • The petitioner argues that the Governor’s immunity caused negligent handling of her complaint by police, delaying justice and hindering investigations.
    • The Supreme Court will determine if Article 361(2) immunity is absolute or can be challenged in serious cases like sexual harassment.

    Does Article 361 Grant Absolution to the Governor against Criminal Charges?

    • Scope of Article 361: Article 361 does grant significant immunity to Governors, shielding them from criminal proceedings during their term. However, the immunity is not absolute.
      • The first provision allows for the conduct of the President to be reviewed by designated bodies for impeachment, while the second provision allows for civil suits against the government.
    • Judicial Precedents: Previous court rulings have indicated that while Governors enjoy immunity under Article 361, this does not prevent judicial scrutiny of their actions, especially if those actions infringe upon fundamental rights.
      • For example, in the case of Rameshwar Prasad vs. Union of India, the Supreme Court stated that civil immunity does not preclude challenges based on malafide actions.
    • Potential for Legal Challenge: The current case may set a precedent for how Article 361 is interpreted regarding criminal acts committed by Governors.
      • If the court finds that immunity does not apply to acts that violate fundamental rights, it could pave the way for accountability and legal recourse for victims of misconduct by constitutional authorities.

    Conclusion: The Supreme Court’s interpretation of Article 361 could redefine the immunity of Governors, potentially allowing criminal proceedings for actions violating fundamental rights, thereby ensuring accountability and justice for victims.

    Mains PYQ:

    Q Discuss the essential conditions for the exercise of the legislative powers by the Governor. Discuss the legality of the re-promulgation of ordinances by the Governor without placing them before the Legislature. (UPSC IAS/2022)

  • Right to Shelter is a Fundamental Right: Supreme Court     

    Why in the News?

    The Supreme Court emphasised the need to balance railway infrastructure development in Haldwani, Uttarakhand, with the fundamental right to shelter nearly 50,000 people accused of illegally encroaching on railway land.

    What was the Case?

    • The hearing was based on an application filed by the Railways seeking to modify a January 2023 Supreme Court order.
    • The order had stayed a Uttarakhand HC direction to evict the families within a week, even using paramilitary forces.
    • The application pointed out that the Ghaula River flood has disrupted railway operations in the region and that more land was urgently needed to lay new tracks.

    What is the Right to Shelter?

    • The right to shelter is derived from the Right to Life under Article 21 of the Constitution of India, which guarantees the protection of life and personal liberty.
    • Article 19(1)(e) provides the Right to reside and settle in any part of the territory of India.

    Judicial pronouncements related to it:

    • Olga Tellis v. Bombay Municipal Corporation (1985): The Supreme Court recognized the right to livelihood as a part of the right to life under Article 21.
    • Chameli Singh v. State of Uttar Pradesh (1996): The Supreme Court declared that the right to shelter is a fundamental right under Article 21. It includes adequate living space, safe and decent structures, clean surroundings, light, air, water, electricity, and sanitation.
    • Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan (1997): The Supreme Court directed the state to construct affordable houses for the poor, reiterating the state’s duty to provide shelter and make the right to life meaningful.

    Various Legislations supporting the Right to Shelter:

    • The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006
    • The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013
    • The Slum Areas (Improvement and Clearance) Act, 1956

     

    PYQ:

    [2021] Consider the following statements :​

    1. ‘Right to the City’ is an agreed human right and the UN-Habitat monitors the commitments made by each country in this regard.​
    2. ‘Right to the City’ gives every occupant of the city the right to reclaim public spaces and public participation in the city.​
    3. ‘Right to the City’ means that the State cannot deny any public service or facility to the unauthorized colonies in the city.​

    Which of the statements given above is/are correct?

    (a) 1 only

    (b) 3 only

    (c) 1 and 2

    (d) 2 and 3

  • What is Governor’s immunity under Article 361, set to be reviewed by Supreme Court?

    Why in the News?

    • The Supreme Court has agreed to hear a plea seeking to redefine the constitutional immunity of state Governors.
      • Article 361 of the Constitution shields the President and Governors from criminal prosecution and judicial scrutiny.
      • The Supreme Court will interpret whether the immunity includes the registration of an FIR, initiation of a preliminary inquiry, or a magistrate taking cognisance of an offence.

    Origins of Governor’s Immunity

    • The concept of immunity is based on the Latin maxim “rex non potest peccare” (the king can do no wrong), rooted in English legal traditions.
    • During the Constituent Assembly debates in 1949, member H. V. Kamath questioned whether immunity meant no proceedings could be instituted against the President or Governor during their term or only while they were in office.
      • The article was adopted without further debate on criminal immunity.

    What are immunities under Article 361?

    • According to Article 361(1), the President or a Governor is not answerable to any court for the exercise of their powers and duties.
    • Article 361(2) ensures that NO criminal proceedings can be initiated or continued against the President or Governor during their term.
    • Article 361(3) prohibits the arrest or imprisonment of the President or Governor while they are in office.
    • Article 361(4) states that civil lawsuits for personal acts against the President or Governor cannot be initiated during their term and can only proceed two months after a written notice is given post-term.

    Judicial Interpretations of Article 361:

    • Dr SC Barat and Anr vs. Hari Vinayak Pataskar Case (1961): Distinguished between the Governor’s official and personal actions. While official actions have complete immunity, civil proceedings for personal acts can proceed with prior notice.
    • Rameshwar Prasad vs. Union of India Case (2006): The Supreme Court recognized “complete immunity” for constitutional actions under Article 361(1), but allowed judicial review for actions taken with malicious intent.
    • Vyapam Scam Case (2015): The Madhya Pradesh High Court ruled that Governor Ram Naresh Yadav had absolute protection under Article 361(2), preventing his name from being included in the investigation to avoid undue legal harassment.
    • State of UP vs. Kalyan Singh Case (2017): The Supreme Court upheld that Kalyan Singh, while serving as Governor of Rajasthan, was immune under Article 361. Legal proceedings related to the Babri Masjid demolition were to resume after his term.
    • Telangana High Court Judgment (2024): Observed that the Constitution does not explicitly or implicitly bar judicial review of actions taken by a Governor, and stated that Article 361 immunity is personal and does not exclude judicial review.

    Case for Revisiting Immunity

    The debate on executive immunity is ongoing in other countries as well.

    • The US Supreme Court recently decided that former President Donald Trump is entitled to “absolute immunity” from criminal prosecution for official acts but not for unofficial or personal acts.
    • In India, the discussion is viewed within the larger context of the tension between Governors and opposition-ruled state governments.
    • The Supreme Court has noted instances where Governors acted with political motives.

    PYQ:

    [2018] Consider the following statements:

    1. No criminal proceedings shall be instituted against the Governor of a State in any court during his term of office.
    2. The emoluments and allowances of the Governor of a State shall not be diminished during his term of office.

    Which of the statements given above is/are correct?

    (a) 1 only

    (b) 2 only

    (c) Both 1 and 2

    (d) Neither 1 nor 2

    [2019] Which one of the following suggested that the Governor should be an eminent person from outside the State and should be a detached figure without intense political links or should not have taken part in politics in the recent past?

    (a) First Administrative Reforms Commission (1966)

    (b) Rajamannar Committee (1969)

    (c) Sarkaria Commission (1983)

    (d) National Commission to Review the Working of the Constitution (2000)

  • Bombay HC quashes Exemption from RTE Quota for Private Schools  

    Why in the News?

    The Bombay High Court has cancelled the Maharashtra government’s new rule that allowed private schools within 1 kilometer of government or government-aided schools to avoid reserving 25% of their seats for students from weaker sections and disadvantaged groups.

    Right to Education (RTE) Act: Overview

    • The Right to Education (RTE) Act, 2009 ensures free and compulsory education as fundamental right under Article 21A of the Indian Constitution.
    • It mandates that every child has the right to full-time elementary education of satisfactory and equitable quality in a formal school that meets certain essential norms and standards.
    • Key Provisions:
      • The RTE Act provides for free and compulsory education for all children between 6 and 14 years.
      • Schools must be available within a prescribed distance from the child’s residence to ensure accessibility.
      • The Act ensures the provision of adequate teachers and the establishment of standards for their training and quality.
    • Teacher Qualification: The teacher must pass the Teacher Eligibility Test (TET), which is administered by the respective government authority. The National Council for Teacher Education (NCTE) has established the minimum qualifications required for a person to be eligible for appointment as a teacher for classes I to VIII.
    • The RTE Act does NOT apply to Minority institutions.

    Section 12(1) (C) of the RTE Act:

    • Section 12(1) (C) requires private unaided and specified category schools to reserve at least 25% seats for children from economically weaker sections and disadvantaged groups.
    • This provision aims to promote social inclusion and ensure that children from all backgrounds have access to quality education.
    • The government reimburses schools for the expenses incurred for admitting these children, based on per-child expenditure incurred by the state.
    • Children from economically weaker sections and disadvantaged groups benefit from this Section as it provides them access to private schooling.
    • This section aims to contest education apartheid and bring parity and equality of opportunity for all children.

    Details of the Exemption Rule in Maharashtra

    • The notification stated that private unaided schools within one kilometer of a government or government-aided school would not need to reserve 25% of seats for socio-economically backward students.
    • Students in these areas would first be considered for admission to nearby government or government-aided schools.
    • The exemption also applied to future private schools established within a one-kilometer radius of government or government-aided schools.
    • If no such schools existed in the vicinity, private schools would be identified for RTE admissions.

    Similar Exemptions in Other States

    • Maharashtra joined Karnataka and Kerala in implementing this regime to exempt private schools from RTE admissions.
    • Karnataka introduced the rule in December 2018, referencing Kerala’s rules introduced in 2011.
    • In Kerala, the fee concession is available to RTE quota students only if there are no government or aided schools within one kilometer for Class 1 students.

    Reasons for Introducing Exemptions

    • Karnataka’s Law Minister stated in 2018 that the primary intention of RTE is to provide education to all classes of students.
    • Allowing parents to admit children to private schools despite nearby government schools resulted in a drop in enrollment ratios in government schools.
    • Private schools and teachers’ organizations highlighted that state governments often failed to reimburse fees for students admitted through the RTE quota.
      • Section 12(2) of the RTE Act binds state governments to reimburse expenses incurred by schools per child or the fee amount, whichever is less.
      • In Maharashtra, the Maharashtra English School Trustees Association (MESTA) threatened to boycott RTE admissions last December due to pending reimbursements of Rs 1,800 crore.

    PYQ:

    [2022] The Right of Children to Free and Compulsory Education Act, 2009 remains inadequate in promoting incentive-based systems for children’s education without generating awareness about the importance of schooling. Analyse.

    [2018] Consider the following statements:

    1. As per the right to education (RTE) Act, to be eligible for appointment as a teacher in a state, a person would be required to possess the minimum qualification laid down by the concerned State council of Teacher education.
    2. As per the RTE Act, for teaching primary classes, a candidate is required to pass a Teacher Eligibility Test conducted in accordance with the National Council of Teacher Education guidelines.
    3. In India, more than 90 % of teacher education institutions are directly under the State Governments.

    Which of the statements given above is/are correct?

    (a) 1 and 2
    (b) 2 only
    (c) 1 and 3
    (d) 3 only