The Supreme Court on Wednesday asked Attorney-General K. K. Venugopal to address it on the issue that the Right to Education (RTE) Act, 2009, does not apply to children below the age of six, thus defeating every child’s fundamental right to get admission in nursery and kindergarten classes in unaided non-minority private schools.

A Bench led by Chief Justice of India Dipak Misra was hearing an appeal filed by NGO Social Jurist challenging the February 2013 decision of the Delhi High Court that the RTE Act was not applicable for nursery admissions in unaided private schools.

It had held that the RTE Act was only applicable to children whose age bracket was between 6 and 14 years of age.

The HC had concluded that States were free to formulate policies to govern nursery admissions.

Social Jurist, represented by advocate Ashok Agarwal moved the Supreme Court in 2015, pointing out that the High Court’s decision went against the very grain of Section 13 of the RTE Act.

Section 13 mandates that “no school or person shall, while admitting a child, collect any capitation fee and subject the child or his or her parents or guardian to any screening procedure”.

Mr. Agarwal submitted that the High Court’s decision opened the doors wide for private schools to collect capitation fee for nursery admissions. He said a child is usually admitted to the nursery when he or she is below the age of six, and “promoted” to Class I in due course. The opportunity for schools to collect capitation is at the time of nursery admission.

‘Illogical’

“It is illogical to say that if a child admitted in Class I or at the age of six, Section 13 of the RTE Act will apply and if a child is admitted in nursery or at the age of three plus, section 13 will not apply,” Mr. Agarwal submitted.

Mr. Venugopal also agreed that there was no regulatory mechanism for nursery admissions.

Chief Justice Misra acknowledged the lacuna, saying a “child cannot jump to the age of seven from zero”.

The case pertains to only “unaided non-minority private schools” because a Constitution Bench of the Supreme Court in its 2014 judgment in Pramati Educational and Charitable Trust versus Union of India had, while upholding the validity of Article 21A, held that the RTE Act does not apply to aided as well as unaided minority schools.

The court refused to refer the case to a larger Bench and scheduled the case for hearing on November 17.