Rather belatedly, promoters, trustees and principals of India’s 80,000 private schools (200,000 according to the Union HRD ministry’s calculus which tabulates each section — primary, upper primary, secondary and higher secondary — within an integrated school as a separate unit) who have hitherto regarded each other as competitors, have begun to unite and make common cause against the Central and state governments which for over six decades have been riding roughshod over them. With typical hypocrisy, the country’s top-ranked private schools are routinely rubbished as elite institutions which profit from education provision and are unmindful of their wider social responsibilities.

With even the judiciary obstinately adhering to judgements passed by the Supreme Court in the pre-liberalisation socialist era ruling that education provision is necessarily a charitable activity, private school promoters and trustees are beginning to fight back. On August 16, the National Foundation for the Promotion and Protection of Private Education (NFPPPE) is scheduled to be launched formally in Mumbai. But it will have several legal and legislative mountains to climb to secure a fair deal and a legitimate place of honour within 21st century India’s education system. Among them:

Supreme Court judgement in Islamic Academy vs. State of Karnataka (2003). In this verdict a five-judge bench of the apex court issued a “clarification” of the court’s 11-judge bench in T.M.A Pai Foundation vs. Union of India (2002), and established committees presided by retired high court judges to determine the government quota in private colleges on the basis of “local needs” and adjudicate fair and reasonable tuition fees chargeable by them. Earlier in its landmark verdict in the T.M.A Pai Foundation case, the Supreme Court had expanded the right of minorities to establish and administer education institutions of their choice to all citizens, and permitted them to conduct their own entrance exams and levy reasonable tuition fees. NFPPPE counsel will need to persuade the Supreme Court to overrule its judgement in the Islamic Academy case.

Article 15 (5) of the Constitution of India. After the Supreme Court’s judgement in P. A. Inamdar vs. State of Maharashtra (2005) in which it reaffirmed the right of all citizens to promote and manage private education institutions as a fundamental right under Article 19 (1) (g) and forbade government from imposing quotas for socially and economically backward castes and classes/castes, the late Union HRD minister Arjun Singh piloted the 93rd Amendment Act, 2005 through  Parliament. This constitutional amendment and a new Article 15(5) inserted into the Constitution enabled the inclusion of s.12 (1) (c) in the RTE Act, 2009 which imposes a 25 percent reservation for government-selected children from poor households in their neighbourhood upon private unaided primary schools.

Society for Unaided Private Schools of Rajasthan vs. Union of India (Writ Petition (c) No. 95 of 2010). Delivering its verdict in this case on April 12 this year, the majority judgement of a three-judge bench upheld the constitutional validity of s.12 (1) (c) of the RTE Act, 2009. However it exempted minority and boarding schools from the obligation to provide highly subsidised primary education to poor household children in their neighbourhood. But following the grant of exemption to minority schools, there’s nationwide confusion about the definition of the word ‘minority’.

“Commercialisation of education”. A hangover of the pre-liberalisation socialist era when the Supreme Court was packed with “committed judges” by prime minister Indira Gandhi, are Supreme Court judgements which forbid “commericalisation of education”. Since then even though the apex court has substantially jettisoned its obsolete ideological baggage, judges who are bound by the precedent judgements of the court have continued to frown on commercialisation of education. Of late a growing number of educationists and legal luminaries are beginning to question why earning reasonable profits from education provision by private unaided institutions is verboten when for-profit food, housing, clothing, medical institutions and companies are free to do so. One of the prime objectives of NFPPPE is to persuade the apex court to permit for-profit schools, colleges and universities to co-exist with government and charitable education institutions. “We (will) need to approach the courts again and again,” says Damodar Prasad Goyal, convenor of NFPPPE.