Refraining granting a stay, the Supreme Court on Monday agreed to examine the validity of the provision of Right to Free and Compulsory Education (RTE) Act which mandated 25 per cent of reserved seats for economically backward sections in private unaided schools.

A bench of Chief Justice S.H. Kapadia, justices K.S. Radhakrishnan and Swatanter Kumar did not favour at the moment the idea of referring the matter to a Constitution Bench.

“At the moment we are not going to stay the statutory provision. We are not passing any order,” the bench said when Additional Solicitor General Indira Jaising urged the court to refrain from passing any order on the plea of private schools challenging the provision and seeking a stay.

Senior counsel Harish Salve, appearing for a consortium of private schools, however, maintained that the organisation was not pressing for a stay but suggested that the matter be examined by a Constitution bench in view of its impact on the rights of private educational institutions.

The Chief Justice said the court cannot refer the matter to a Constitution bench as it was hard pressed with other work and would only prolong the hearing.

He, however, said the three-judge bench would initially examine the matter and only if warranted refer it to a Constitution Bench. The matter was posted for further hearing to Friday.

Earlier, the ASG said the Act has been formulated in tune with the constitutional provisions of equality and providing free education to the underprivileged.

The main petitioner Society for Un-aided Private Schools, Rajasthan, and a host of associations representing various private schools have questioned the validity of the Act on the ground that it impinged on their rights to run the educational institutions.

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