Supreme Court says Reservation not a Fundamental Right on pleas for OBC Quota in TN Medical Colleges

Dear Colleagues,

Hon'ble Supreme Court bench headed by Justice L Nageshwara Rao today expressed that the reservation of seats to certain communities was not a Fundamental Right and refused to act on a petition filed by all political parties from Tamil Nadu seeking 50% OBC reservation in the all-India NEET seats surrendered by states.

It was argued that the Union Ministry for HRD and the Tamil Nadu State government were not following the state policy on reservations in filling up seats surrendered by states in NEET, including admissions for undergraduate, graduate, postgraduate, dental and diploma courses in medicine in private and government colleges.

Justice LN Rao lauded the sentiment behind the move, which had parties of all shades from the state on the same page, as “unusual” for Tamil Nadu  and said “We appreciate the concern of all political parties for the welfare of Backward Classes. But reservation is not a Fundamental Right.”

"Right to reservation is not a fundamental right. That's the law today," remarked Justice Rao, as the bench took up petitions claiming violation of fundamental rights by not keeping seats reserved in the medical colleges in Tamil Nadu for its OBC students.

Petitioners argued that  OBC reservations had been introduced after a long political fight but was being denied to the affected sections in the state and insisted that non-implementation of such reservations in the state amounted to violation of Fundamental Rights of its residents.

However the Hon'ble Supreme Court  remained unimpressed with such submissions, and questioned how a petition under Article 32 could be maintainable when there is no fundamental right to have reservation benefits.

"Whose fundamental rights are being violated? Article 32 is available only for violation of fundamental rights." expressed the Bench.

When argued that the premise of the cases are violation of the law on reservation by the Tamil Nadu government,  Hon'ble Court asked the petitioners to approach the Madras High Court saying “You should withdraw it and go to the high court. You are only interested in 50% reservation in Tamil Nadu.”

It is pertinent to mention that in February 2020, the apex court had held there is no fundamental right to claim reservation in public jobs and no court can order a state government to provide for reservation to SC/STs.

Allahabad High Court issues notice to waive fees of students with disabilities as online classes not accessible

Parents of a child with autism have filed a petition before the Allahabad High Court against the school asking for fees in spite of the student not attending online classes during lockdown. The court issued a notice asking all CBSE affiliated schools to waive-off fee for children for benchmark disabilities in terms of  RPWD Act, 2016.

For many students with disabilities, the lockdown resulting from the COVID19 pandemic has definitely been difficult. Students with intellectual and developmental disabilities (IDD) are clueless on how to pursue their education through online classes which are not easy for many of them. 

In the instant case, the child with autism is studying in class third at Amit International School in Lucknow. He has been unable to attend online classes due to his developmental disability. He is also undergoing therapies for the same. He has not attended most of his ongoing online classes as he finds them difficult to follow. But since last March, his school authorities have been regularly sending messages to his parents asking them to deposit the school fee at the earliest.

As per the petition filed before the court, there are thousands of children with different disabilities across Lucknow. Many are unable to attend online classes due to their disabling conditions. Demanding fees from such children is an act that must be punishable. Moreover, this system does not provide inclusive education either for students with disabilities.

The matter was heard by the bench of Justice Pankaj Kumar Jaiswal & Justice Saurabh Lavania through video-conferencing. The bench was pleased to issue Notices to the school authorities through e-mail, WhatsApp and messages.

This notice from the high court comes as a big relief to the parents. The schools have not been providing inclusive education nor have sufficient trained teachers. Many parents have formed or joined many support groups for helping each other and sharing of information etc.

Sad reality
This is a sad reality for all stakeholders that despite the Rights of Persons with Disabilities Act 2016 and Right to Education Act (RTE) making provisions for free and compulsory education to students with disabilities from 6 to 18 years of age, most of these parents end up bearing so many expenses and receive no quality education for their children. They have to pay for the child’s therapies & related medical conditions. Apart from the exorbitant school fee being forced upon them, there are expenses of transporting children by school buses. On top of it, many schools insist the parents to hire shadow teachers at their own cost as a pre-condition to allow admission to a child with disability. This is double whammy for parents of intellectually and developmentally disabled (IDD) children. 

Way ahead
The education sector, particularly private schools need to wake up to make appropriate adaptations in the syllabus and teaching methodologies to be more sensitive and inclusive towards the needs of students with disabilities. The notice of the court is the first step is right direction. However, we hope that parents get relief even after the impact of COVID19 lockdown the something positive comes out of this litigation in larger interest of similarly placed parents & students with IDD.

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