Mentor - Simran

INTERPRETING SECTION 12(2): MAPPING LEGAL ISSUES AND

CHALLENGES

Akansha Makker
Raksha Tripathy
Sara Singh

Centre for Civil Society

Interpreting Section 12(2): Mapping Legal Issues and Challenges
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 TABLE OF CONTENT

INTRODUCTION 6

SUMMARY OF ISSUES CONTESTED* 8

SUMMARY OF CASE OUTCOMES 9

HIGH NUMBER OF DISMISSALS 9

HIGHER POSSIBILITY OF JUDGEMENTS BEING AGAINST PRIVATE SCHOOLS 10

AVERAGE OF 395.5 DAYS TAKEN TO REACH A DECISION 11

HOW HAS THE JUDICIARY INTERPRETED ISSUES WITHIN 12(2)? 12

LACK OF EFFORTS TO REDUCE INSTANCES OF DELAYED REIMBURSEMENTS 12

D.A.V. Boys Senior Secondary School vs. State of Tamil Nadu (2019) 13

The Managing Trustee, J. Ranganna Lakshmana Charitable Trust, Mysore vs. the State of
Karnataka (2019) 13

Uran Education Society vs The State of Maharashtra (2015) 13

The Daly College vs The State of Madhya Pradesh (2014) 13

MISSING TRANSPARENCY AND COMMUNICATION ON CALCULATION OF PER CHILD

EXPENDITURE 14

C/M, Navayuga Radiance, Senior Secondary School vs the State of U.P (2019) 14

Associated Managements of Government Recognised English Medium Schools in Karnataka

(KAMS) vs State of Karnataka and Ors (2016) 15

Social Jurist, A Civil Rights Group Vs. Govt. of NCT of Delhi (2012) 15

CONTINUING AMBIGUITY IN DEFINITIONS 15

Federation of Public Schools Vs. Govt. of NCT of Delhi (2012) 15

Education Rights Trust vs The Government of Karnataka & Ors (2019) 16

The Daly College Vs. The State of M.P. (2014) 16

Lakshmi School, Veerappanchan & Ors vs The State of Tamil Nadu and Ors (2012) 16

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 INCLUSION OF PRE-PRIMARY EDUCATION WITHIN THE ACT 17

Dr. Vikhe Patil Foundation’s Vikhe Patil Memorial School Pune and Ors.(2016) 17

INCLUSION OF SECONDARY EDUCATION WITHIN THE ACT

18

EXPANSION OF SECTION’S SCOPE 19

Justice for All vs. Government of NCT of Delhi and Ors (2020) 19

C.V. Bhagwant Rao Vs. Union of India and Ors. (2017) 20

Savari Muthu Micheal Selvan vs State of Maharashtra and Ors 2019 20

SUMMARY OF FINDINGS FROM ADVOCATES’ INTERVIEWS 20

CONCLUSION 22

REFERENCES 22

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Interpreting Section 12(2): Mapping Legal Issues and Challenges
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 Centre for Civil Society
Interpreting Section 12(2): Mapping Legal Issues and Challenges
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INTRODUCTION

Legislations are enacted to create or change rights and obligations of the citizens of a
country. They also help with tackling an existing social problem with legal processes. The
Right to Education Act, 2009 (RTE)is a fitting example of this. It aims to do the mammoth
task of putting structures in place for increasing access to education in our country. This
paper attempts to understand the myriad challenges faced by the primary stakeholders of
the RTE Act (hereafter, Act) since its enactment, with a special focus on the issue of
reimbursements. The Act stipulates that private schools must reserve a minimum of 25%
of their available seats for students belonging to disadvantaged groups, and that they must
be reimbursed by the government for the same.

While a lot has been already written about the success and downfalls of the Act so far, we
attempt to understand the challenges in Section 12(2) of the Act by analysing all
judgements pertaining to this particular section. The judgements will help us identify the
most contentious issues and how the judiciary has dealt with the interpretation to facilitate
smoother implementation of the Act.

The legal commentary in this paper deals with 25 judgements 1 from 11 High Courts that
pertain to Section 12(2) of the Act. Even though this paper looked into all Indian High
Courts, it was discovered that some states either do not implement Section 12(2) or have
no relevant judgements related to the Section.

The High Courts studied are:

1) Allahabad High Court (5 Cases)

2) Bombay High Court (4 Cases)

3) Chhattisgarh High Court (1 Case)

4) Delhi High Court (4 Cases)

5) Gujarat High Court (1 Case)

6) Himachal Pradesh High Court (1 Case)

7) Karnataka High Court (3 Cases)

8) Madhya Pradesh High Court (1 Case)

1 Two legal repositories—Manupatra and SCC Online—were used to extract 25 judgements.

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 9) Madras High Court (3 Cases)

10)Punjab & Haryana High Court (1 Case)

11)Rajasthan High Court (1 Case)

This paper follows a three-fold method of analysis. First, all relevant court judgements
were analysed to identify and understand the primary issues related to reimbursements
under the Act. The main criteria for accepting judgments for our research was to check if
they deal with, mention or discuss the section in any arguments. Secondly, a news scan was
conducted to get a holistic grasp of the other themes that might not have been contested in
courts yet. Finally, we tried to contact the advocates of all these cases to better understand
the motivation behind filing these cases. A total of 15 advocates were approached, with
only 5 agreeing to be interviewed. The rest were either unavailable or uncomfortable with
commenting on any cases.

SUMMARY OF ISSUES CONTESTED*

S. No. Issue Cases Included No. of

Cases

1 Delay in Reimbursements by 1) The Managing Trustee, J. Ranganna Lakshmana 6

the State Government
Charitable Trust, Mysore and Ors. Vs. State of
Karnataka and Ors.
2) Navayuga Radiance, Senior Secondary School
and Ors. Vs. State of U.P. and Ors.
3) Associated Managements of Government
Recognised English Medium Schools in Karnataka
(KAMS) Vs. State of Karnataka and Ors.
4) D.A.V. Boys Senior Secondary School Vs. State of
Tamil Nadu
5) Uran Education Society vs The State of
Maharashtra
6) The Daly College vs The State of Madhya
Pradesh

2 Calculation of Per-Child 1) Associated Managements of Government 3

Recognised English Medium Schools in Karnataka
Expenditure (KAMS) Vs. State of Karnataka and Ors.
2) Social Jurist, A Civil RIghts Group Vs. Govt. of
NCT of Delhi
3) Navayuga Radiance, Senior Secondary School
and Ors. Vs. State of U.P. and Ors

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 3 Contestation of the definition
of ‘neighbourhood’ under
12(2)
1) Federation of Public Schools Vs. Govt. Of NCT of 3
Delhi
2) Education Rights Trust and Ors. Vs. Government
of Karnataka and Ors.
3) The Daly College Vs. State of M.P.

4 Including Pre-Primary School 1) The Daly College Vs. State of M.P. 3

2) Dr. Vikhe Patil Foundation’s Vikhe Patil
within the ambit of 12(2) Memorial School Pune and Ors.
3) Uran Education Society and Ors. Vs. The State of
Maharashtra and Ors.

5 Expanding the scope of 1) Justice for All Vs. Government of NCT of Delhi 4
and Ors.
Section 12(2) 2) D.A.V. Girls Senior Secondary vs State Of Tamil
Nadu
3) Savari Muthu Micheal Selvan V. State of
Maharashtra and Ors
4) C.V. Bhagwant Rao Vs. Union of India and Ors.

6 Inclusion of children beyond 1) Naresh Gangaram Gosavi and Ors. Vs. Chembur 1
English School and Ors. (BOMHC)
ages 6-14 under 12(2)

7 State Minimising their Burden
of Reimbursement
1) Education Rights Trust and Ors. Vs. Govt. of 2
Karnataka and Ors.
2) Lakshmi School, Veerappanchan, Karuppayurani
Post, Madurai and Ors. Vs. State of Tamil Nadu and
Ors.

*The Table of Issues only considers 16 cases, leaving out 9 cases. The 9 cases that have
been left out refer to Section 12(2) of the Act only in passing, and do not fit neatly into any
of the above categories.

A Quantitative Assessment of Case Outcomes

HIGH NUMBER OF DISMISSALS
Figure 1 shows us the number of cases that have been dismissed in the courts. Out of the 25
cases examined, 8 have been dismissed. Out of the 8 cases that have been dismissed, there
is a fair amount of diversity in the Court’s reasoning. These will be discussed in greater
detail in the sections below.

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 Figure 1: Dismissal Ratio of the cases

AVERAGE OF 395.5 DAYS TAKEN TO REACH A DECISION

Figure 3 shows the distribution of the number of days it took for each case to be decided.
Most judgements were pronounced within 500 days, with an average of 395.5 days. The
shortest amount of time it has taken for a case to be disposed of is 1 day, and the longest
amount of time has been 2281 days, with the case still pending in the Court as of 16 July
2021.

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Figure 3: *The graph for the average judgment time includes only 23 cases because there
were 2 cases that did not have any available data regarding their date of filing.

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 HOW HAS THE JUDICIARY INTERPRETED ISSUES WITHIN 12(2)?

LACK OF EFFORTS TO REDUCE INSTANCES OF DELAYED REIMBURSEMENTS

In D.A.V. Boys Senior Secondary School vs. State of Tamil Nadu (2019), the writ petition
filed by the school pleaded to direct the Tamil Nadu government to frame guidelines for
swift disbursement of reimbursement amount for admissions under Section 12(1)(c) of the
Act. The Tamil Nadu RTE Rules required the local authority to disburse the reimbursement
amount for each academic year in September and March. The school argued that
reimbursements are made only twice a year, which are also often delayed, and this burdens
the school financially. Other expenditures such as on infrastructure, purchasing stationery,
electronic media devices and related consoles are all to be paid for by the school. The Court
found no merit in the writ petition and dismissed it, stating that the school failed to provide
any evidence demonstrating the financial instability due to delayed reimbursement.

In The Managing Trustee, J. Ranganna Lakshmana Charitable Trust, Mysore vs. the
State of Karnataka (2019), the petitioners are aggrieved due to delayed reimbursement.
The school was incorrectly classified as urban instead of a rural institution. This disallowed
the school from filing for reimbursement since the process was different for both
categories. The school struggled to change its classification online even after repeated
requests to the Karnataka state government. The Court acknowledged that the petitioners
had to face difficulty in receiving the reimbursement amount for 2017-2018 and 2018-
2019, even though they are entitled to it. The respondent reimbursed the fees for 2017-18
during the pendency of the case and was processing the amount for 2018-19. The petition
was disposed of by directing the respondent to expedite reimbursement fees for 2018-19.
However, no deadline was prescribed to complete the reimbursement.

In Uran Education Society vs The State of Maharashtra (2015), the petitioner was an
unaided private school, offering pre-school and elementary education. Its grievance was
delayed reimbursement from the state government. The Court acknowledged and agreed
with the rights of the private unaided school to get reimbursement under Section 12(2).
However, it once again failed to mention the timeline within which they should be
reimbursed.

In The Daly College vs The State of Madhya Pradesh (2014), the petitioner highlighted
that there is no provision in the Act for reimbursement of the expenditure incurred by the
school for providing pre-school classes. The Court rejected the contention and stated that
Section 12(2) provides for this. The Court reiterated that the reimbursement amount will
be made in accordance with law within the time-bound period.

“38. ...In respect of grievance of the counsel for the petitioners that no reimbursement of
expenditure incurred by them in the previous years on admission to the extent of 25% to the
children of under privileged and weaker section of society in pre-school classes, has been

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made by the State till now, Counsel for the State has fairly stated before this Court that the
amount will be reimbursed in accordance with law within a time bound period.”

It directed the petitioners to file an appropriate application for reimbursement before a

competent authority of the State, and stated the same should be made within three months
from the date of receipt of application. The Daly College case was one of the few cases
where the Court mentioned the time limit within which the school should be reimbursed by
the competent authority.

MISSING TRANSPARENCY AND COMMUNICATION ON CALCULATION OF PER CHILD

EXPENDITURE

In C/M, Navayuga Radiance, Senior Secondary School vs the State of U.P (2019), the
petitioners were a couple of educational institutions who claimed to fall under Section
12(1)(c) of the Act and sought two major reliefs from the Court– (i) to direct the
respondent to calculate and declare the per-child expenditure amount on a timely basis for
the subsequent academic sessions; and (ii) to direct the State to calculate per-child
expenditure of the academic years of 2015-16 and 2016-17 so that these arrears could be
cleared. They felt that reimbursing unaided schools Rs. 450/- per month was arbitrary and
unsatisfactory, and wanted this to be corrected. However, the Court made the following
observation-

"13. As regards, the declaration done of per child expenditure by State of Tamil Nadu, suffice
it to state that once the Court does not find any requirement of the detailed calculation to be
disclosed while arriving at a specific figure either under the Rules, 2011 or Act, 2009,
consequently merely because such detailed calculation has been disclosed by the State of
Tamil Nadu cannot be a ground to compel the State of U.P. to disclose the said detailed
calculation.

14. Accordingly, keeping in view the aforesaid discussion, no case for interference is made out.
The writ petition is misconceived and is dismissed.”

As can be seen from the above statements, the Court was not keen on directing the
government to disclose the method of calculating the per child expenditure. Even though
this was not a part of the prayer made by the petitioners, it would be helpful in increasing
accountability and transparency.

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In Associated Managements of Government Recognised English Medium Schools in
Karnataka (KAMS) vs State of Karnataka and Ors (2016), the petitioner was a body of
unaided private schools that had not been reimbursed by the State for a few years now. The
association contended that the reimbursement amount they had been receiving prior to
this was also insufficient for them since the schools were budget schools that relied majorly
on the fees collected for sustenance. They proposed the Government to recalculate the
reimbursement amount based on either the annual fees or the annual expenditure incurred
by the government. The Court directed the Government to recalculate the reimbursement
amount in consonance with the provisions of the Act. The Court also directed the State to
notify the petitioner of the per-child-expenditure at the beginning of every academic year. .

Social Jurist, A Civil Rights Group Vs. Govt. of NCT of Delhi, 2012 was filed by a group of
petitioners who were dissatisfied with the reimbursement amount since it was not enough
to provide special teaching aids to students with disabilities (thereby leading them to be at
risk of non-compliance with the Act). They also contested that the per-child expenditure
amount was arbitrary, with no real basis provided for how the government landed on Rs.
1190/- per month as the appropriate amount to reimburse. The Court decided to dispose of
this case, with no extra costs being provided to the petitioner.

“Though the counsel for the Action Committee has also sought to raise a grievance about the
rate of reimbursement of Rs. 1,190/- per child per month but we are afraid that is not within
the ambit of the present petition. He has lastly contended that the same is not inclusive of the
emoluments to be paid to the Special Educators. The counsel for the GNCTD, under
instructions, has fairly stated that as and when the Government appoints Special Educators
for Government schools, the total salary expenditure of the Government will increase and
hence per child expenditure will also increase and consequent increase would be made in the
amount of Rs. 1,190/- also. We accordingly allow this petition and direct all the recognized
aided and unaided private schools in Delhi to appoint Special Educators and to make their
buildings/school premises barrier free so as to provide free movement/access to children with
disabilities. We further direct the DoE, Govt. NCT of Delhi to ensure compliance of the
directions issued by this Court and to take action for derecognition against the erring schools.
We however grant time up to 31st March, 2013 to the said schools to, if not have already
done, make their school premises barrier free/access free. We have granted the said time
having regard to the fact that Section 19 of the RTE Act has given time of three years from 1st
April, 2010.”

As it can be observed, lack of transparency and communication about the calculation of the
per-child expenditure is a recurring challenge. The Courts, however, have not taken any
active steps to resolve the issue. Out of the 3 cases pertaining to this question, only 1 of
them was allowed by the Courts, that too in part. The Karnataka High Court ordered the
State to notify the schools of the per-child expenditure, but there was no acknowledgement
of the petitioner's claims about how the calculation might be arbitrary, or how the amounts

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reimbursed are insufficient. It is seen that the Courts tend not to interfere in financial
matters. Additionally, the compliance cost is higher for private schools and so is the penalty
for defaulting. It will be fair to say that there is no level playing field for the two service
providers.

CONTINUING AMBIGUITY IN DEFINITIONS

In Federation of Public Schools Vs. Govt. of NCT of Delhi (2012) government’s definition
of what a neighbourhood means was brought under the scanner. According to the
petitioners, expanding the definition of ‘neighbourhood’ is detrimental to the
disadvantaged students, since having to travel long distances is cumbersome and might
lead to higher dropout rates. The government responded that the crux of the Act is to
increase access to education and so distance is only a secondary concern. It went on to add
that,

“We are also of the view that the RTE Act being comparatively recent, and hiccups being faced
in implementation thereof, considering the laudable objective thereof, it becomes the bounden
duty of this Court to ensure that such hiccups do not defeat the purpose of its enactment. After
hearing the counsel for the respondent GNCTD, we direct as under: (i) Admission shall first be
offered to eligible students belonging to EWS and disadvantaged group residing within 1 Km.
of the specific schools; (ii) In case the vacancies remain unfilled, students residing within 3
kms. of the schools shall be admitted; (iii) If there are still vacancies, then the admission shall
be offered to other students residing within 6 kms. of the institutions; (iv) Students residing
beyond 6 kms. shall be admitted only in case vacancies remain unfilled even after considering
all the students within 6 kms. area.”

In Education Rights Trust vs The Government of Karnataka & Ors (2019), the petitioner
is an association of parents seeking admission under the Act. They challenged an
amendment to the Karnataka RTE Rules as ultra vires and arbitrary to the Act and the
Constitution. Under this amendment, the unaided schools are not required to provide
admission to disadvantaged children where there already exists government schools and
aided schools in the neighbourhood. Such, unidentified unaided/private schools will not
receive reimbursement for imparting education to 25% RTE quota. The State claimed that
since the enactment of the Act in 2009, there had been a heavy burden on the exchequer.
The State had spent the total expenditure of Rs. 1300 crores, and for the academic year
2018-19, the cost of reimbursement was Rs. 700 Crores. However, after observing other
issues in the case, the Court rejected the writ petition, stating that the petitioners failed to
show arbitrariness, mala fides, or violation of the amendment.

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In The Daly College Vs. The State of M.P., 2014 the petitioner was ordered to admit
students from disadvantaged groups to their pre-primary classes. The petitioner
questioned the neighbourhood limits for this new group of students. However, the Court
decided to dispose of this petition without any relief or clarification being provided on the
neighbourhood issue.

It is interesting to note that both the state and private schools have asked for defining and
limiting the scope of the word ‘neighbourhood’. The Courts tend to support the idea when it
is backed by arguments that ensure the objective of the Act- that is ensuring greater access
to education- is not being sidelined.

In Lakshmi School, Veerappanchan & Ors vs The State of Tamil Nadu and Ors (2012),
the petitioners submitted that some provisions of the Tamil Nadu School Fees Act, 2009
prohibit the collection of excess fees and power to regulate the fees collected by such
schools. The Court observed that the CBSE schools cannot levy exorbitant fees and burden
the State exchequer because the State Government is reimbursing the educational
expenditure of the children of weaker sections and disadvantaged groups under Section
12(2) of the Act. However, as per the section, the appropriate Government needs to only
reimburse to the extent of the amount incurred by the government schools. It is unclear
why it was necessary to curtail the school’s freedom to decide the fees since it does not
have a bearing on the reimbursement amount provided by the state government or on the
exchequer.

INCLUSION OF PRE-PRIMARY EDUCATION WITHIN THE ACT

In Dr. Vikhe Patil Foundation’s Vikhe Patil Memorial School Pune and Ors.(2016) the
school introduced two levels of entry- a reservation of 12.5% at the pre-primary level, as
well as a 12.5% reservation at the standard I level. Thus, the promoted 12.5% from pre-
primary level to the standard I and 12.5% reserved at standard I would cumulatively make
25%. The Court upheld that the schools do not have the discretion to include pre primary
admissions under the ambit of 12(2) as per their own convenience. It made it clear that the
schools are required to admit students at pre primary level to an extent of 25% as well in
order to prepare students for elementary education. It is also a positive affirmation for the
school to admit students at every entry level.

In previously discussed cases such as The Daly College vs. State of M.P.(2014) and Uran
Education Society and Ors. vs. The State of Maharashtra and Ors (2015), the Courts
directed the reimbursement of the cost of pre primary schools. While section 12(1)(c) and
12(2) don't explicitly mention it, it is implied that the schools imparting pre primary
education should intake students from the specified categories and that amount incurred
by the schools for providing them education shall be reimbursed by the state and central
government as specified in the Act.

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The Constitution only grants the fundamental right to education to students aged 6-14,
however, the Court has gone over and beyond with this interpretation and have attempted
to rectify this grey area in the Act. Even though this assists in furthering the objectives of
the Act, it is important to note that it overlooks the impact this judgement can have on
private schools. Private schools are currently suffering due to delayed and inadequate
reimbursement and expanding the ambit is likely to burden them further. This will
discourage them from admitting students from the less advantaged sections of the society
and prove to be counterproductive.

INCLUSION OF SECONDARY EDUCATION WITHIN THE ACT

This is a unique case that includes children above the age of 14 years, thereby also covering
secondary education for certain categories of students. This pertains to extending
education beyond elementary level to certain categories of students by including their
secondary education also. In Naresh Gangaram Gosavi and Ors . vs Chembur English
School and Ors (2010),the case pertained to clearly demarcating what categories of social
groups are to be included under section 12(1)(c) and subsequently 12(2). Students in this c
belong to three categories: VJNT (Vimukta Jati and Nomadic Tribes), OBC and SBC (Special
Backward Classes).

Bombay High Court pronounced that children belonging from Scheduled Castes and
Scheduled Tribes groups studying uptill class VIII shall have their fees reimbursed by the
state irrespective of their family income. The state shall also take up responsibility to
reimburse the amount for their secondary education according to Resolutions made by the
state government prior to the Act, motivated by Article 46 of the Constitution, that provides
for promotion of educational and economical interests of weaker sections. Certain
categories such as Other Backward Classes, Vimukta Jati and Nomadic Tribes and Special
Backward Classes along with students from families having a lakh of per annum income or
above but upto to the creamy layer cut off, shall also be eligible to avail the benefit of 12(1)
(2) for the duration of their elementary education. The state has been reimbursing for their
secondary education.

This is one of its kind cases wherein some provisions were made keeping in mind the
interest of the concerned groups that require these safety nets for upliftment irrespective
of income criteria. The state has made special provisions for including reimbursement for
higher education as well for certain categories to promote Directive Principles of State
Policies enshrined in the Constitution.

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EXPANSION OF SECTION’S SCOPE

In Justice for All vs. Government of NCT of Delhi and Ors (2020), Delhi High Court added
a new caveat by including digital devices under 12(2). This judgement aimed to bridge the
digital gap between the privileged that have access to digital devices and the unprivileged
that don't, keeping in mind the circumstances the pandemic poses. It expands the ambit of
12(2) by inclusion of high speed internet and digital devices like mobiles phones, laptops
and tablets to the EWS & DG students that are beneficiaries of this 25%. It specifically asks
the states to reimburse the costs incurred by the schools.

Moreover, in the case of reimbursement of books and uniforms, the Court reiterated that
these materials shall be provided for under this section. The Court furthered the judgement
by examining the facts of the case in C.V. Bhagwant Rao Vs. Union of India and Ors.
(2017) and upheld that the reimbursement given for books and uniform isn't enough in
value to accommodate the actual costs.

In Savari Muthu Micheal Selvan vs State of Maharashtra and Ors 2019 , the petitioners
demanded inclusion of transportation fee that is currently borne by the students of the
specified categories under the Act and reside outside the designated vicinity (i.e the
designated vicinity for pre primary is 1 km and elementary is 3 km). The seats that are
vacant due to non fulfilment by the students in the designated vicinity are passed on to
students that reside outside the designated vicinity. However, the decision of the schools
declining to reimburse transportation fee was deemed fair by the Court as these students
are already at an advantage. Therefore, the Court advocated that this trade off is allowed
and does not dilute the essence of 12(1)(c) and subsequently 12(2). The freedom to choose
students for the benefits of 12(2) is implausible and creates space for arbitrariness and
unfairness rather than curbing this issue. The allotment is on the basis of distance factor
considering neighbourhood criteria and is no way exercised in excess power.

SUMMARY OF FINDINGS FROM ADVOCATES’ INTERVIEWS

We were able to interview 5 advocates who represented the petitioners in the cases above.
Apart from understanding the motive behind filing cases, we also got an insight into some
unique implementation challenges, which could not be unearthed solely relying on case
analysis.

ON POSSIBLE REASONS FOR DELAYED REIMBURSEMENTS

A financial crunch is one of the major defences put forth by the state when schools contest
delayed reimbursements. Another reason is administrative delays on part of the
government.

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ON POSSIBLE SHORTCOMINGS OF JUDICIAL INTERPRETATIONS

It was informed to us that ever since the ‘neighbourhood principle’ has taken birth in
Karnataka, Section 12(2) of the Act has not been implemented. This means that private
unaided schools in Karnataka are not obligated to admit students from disadvantaged
groups if they happen to be in areas with government schools and other aided schools,
because the government does not wish to reimburse them with the per-child expenditure
of the state.

ON THE LOW NUMBER OF CASES BEING FILED IN THE COURTS

Schools find the legal process cumbersome and time consuming. Hence, there is a data
mismatch when it comes to the number of news reports pertaining to Section 12(2) and
actual number of cases in the Courts.

Another reason is the school’s unwillingness to invite confrontation with the government.

Furthermore, even after getting a relief from the Court, there is no assurance of
enforceability of the order, hence many schools prefer to not get into litigation.

ON HOW CAN THE IMPLEMENTATION CHALLENGES BE TACKLED

Implementation challenges continue since the Courts have failed to review the
constitutional validity of the provisions in the first place, merely reiterating the sections of
the Act is not likely to resolve the issues.

Ambiguity regarding inadequate reimbursement amounts causes a reluctance amongst the

schools to admit students under this section.

Lack of clear guidelines over manner, mode and quantum of fee to be reimbursed makes it
more difficult to trust the government and its seriousness.

Setting deadlines and giving warnings to the government in cases of delayed

reimbursements will hold the government accountable. This will create a strong
precedence and have a deterrent effect.

CONCLUSION

In this section, we aimed to examine the implementation challenges of Section 12(2) by

doing a news scan, cases analysis and interviewing counsel for petitioners. Delays in
reimbursement was the most contentious issue and was usually seen to be coupled with
another difficulty faced by the petitioner. However, the courts failed to satisfactorily
answer the queries raised by the petitioners leading to continued uncertainty.

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The issue of inclusion of pre primary education under 12(2) was uniformly dealt with by all
Courts that ruled in favour of its inclusion. However, certain issues that had limited clarity
such as what constitutes a “neighborhood” were dealt with differently by each Court. It was
observed that education is a blanket term and should also include supplementary elements
such books, digital devices (in the case of pandemic), and uniform. However, the Court
went beyond its powers to ensure access to education by including pre-primary and
secondary education.

Our legal system acknowledges the dynamic nature of the Act by including these important
elements thus, directing schools to adopt a more inclusive approach by providing these
materials. It should however be ensured that there is no unnecessary burden on the private
schools, the compliance and accountability should be similar to the government schools,
the penalties should be alike and lastly freedom to choose and freedom to carry on one’s
business should not be curtailed.

REFERENCES

1. Section 12(2), Right of Children to Free and Compulsory Education Act, 2009,
The school specified in sub-clause (iv) of clause (n) of section 2 providing free and compulsory
elementary education as specified in clause (c) of sub-section (1) shall be reimbursed
expenditures incurred by it to the extent of per-child-expenditure incurred by the State, or the
actual amount charged from the child, whichever is less, in such manner as may be
prescribed:
Provided that such reimbursement shall not exceed per-child-expenditure incurred by a
school specified in sub-clause (i) of clause (n) of section 2:
Provided further that where such school is already under obligation to provide free education
to a specified number of children on account of it having received any land building,
equipment or other facilities, either free of cost or at a concessional rate, such school shall not
be entitled for reimbursement to the extent of such obligation.
2. Two legal repositories—Manupatra and SCC Online—were used to extract 25
judgements.
3. Justice for All Vs. Government of NCT of Delhi and Ors, MANU/DE/1740/2020
4. SAVARI MUTHU MICHEAL SELVAN V. STATE OF MAHARASHTRA AND OR,
MANU/MH/0118/2017
5. C.V. Bhagwant Rao Vs. Union of India and Ors, MANU/CG/0844/2017
6. Dr. Vikhe Patil Foundation’s Vikhe Patil Memorial School Pune and Ors, 2015 (6) ABR
53, 2016 (3) ALLMR 30

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7. Uran Education Society and Ors. Vs. The State of Maharashtra and Ors,
MANU/MH/0780/2015
8. Naresh Gangaram Gosavi and Ors . vs . Chembur English School and Ors . ( 03 . 04 . 2013
- BOMHC), MANU/MH/0294/2013
9. D.A.V. Boys Senior Secondary vs State Of Tamil Nadu, 2019 SCC OnLine Mad 20538
10. D.A.V. Girls Senior Secondary vs State Of Tamil Nadu, 2019 SCC OnLine Mad 20548
11. Lakshmi School Veerappanchan v. The State of Tamilnadu, 2012(6) CTC 8, (2012)
7MLJ301, 2012WritLR1009
12. Associated Managements of Government Recognised English Medium Schools in
Karnataka (KAMS) Vs. The State of Karnataka and Ors., MANU/KA/1877/2016
13. Social Jurist, A Civil Rights Group Vs. Govt. of NCT of Delhi, MANU/DE/4861/2012
14. Navayuga Radiance, Senior Secondary School and Ors. Vs. State of U.P. and Ors.,
MANU/UP/0919/2019
15. Birla Vidya Niketan School and Ors. Vs. Govt. of NCT of Delhi and Ors.,
MANU/DE/2642/2013
16. Federation of Public Schools Vs. Govt. of NCT of Delhi, MANU/DE/0326/2012
17. The Managing Trustee, J. Ranganna Lakshmana Charitable Trust, Mysore and Ors. Vs.
State of Karnataka and Ors., MANU/KA/8361/2019
18. Education Rights Trust and Ors. Vs. Government of Karnataka and Ors.,
MANU/KA/3416/2019
19. The Daly College Vs. The State of M.P., MANU/MP/1860/2014
20. Prakash Kapadia Vs. State of Gujarat and Ors., MANU/GJ/0032/2016

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