' 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO. 95 OF 2010
Society for Un-aided Private Schools
of Rajasthan ... Petitioner(s)
versus
U.O.I. & Anr. ...Respondent(s)
with Writ Petition (C) Nos. 98/2010, 126/2010, 137/2010,
228/2010, 269/2010, 310/2010, 364/2010, 384/2010,
21/2011, 22/2011, 24/2011, 47/2011, 50/2011, 59/2011,
83/2011, 86/2011, 88/2011, 99/2011, 101/2011,
102/2011, 104/2011, 115/2011, 118/2011, 126/2011,
148/2011, 154/2011, 176/2011, 186/2011, 205/2011,
238/11 and 239/11.
JUDGMENT
S. H. KAPADIA, CJI
1. We have had the benefit of carefully considering the
erudite judgment delivered by our esteemed and learned
Brother Radhakrishnan, J. Regretfully, we find ourselves in
the unenviable position of having to disagree with the views
expressed therein concerning the non-applicability of the
Right of Children to Free and Compulsory Education Act,
2009 (for short "the 2009 Act") to the unaided non-minority
2
schools.
2. The judgment of Brother Radhakrishnan, J. fully sets
out the various provisions of the 2009 Act as well as the
issues which arise for determination, the core issue concerns
the constitutional validity of the 2009 Act.
Introduction
3. To say that "a thing is constitutional is not to say that it
is desirable" [see Dennis v. United States, (1950) 341 US
494].
4. A fundamental principle for the interpretation of a
written Constitution has been spelt out in R. v. Burah
[reported in (1878) 5 I.A. 178] which reads as under:
"The established Courts of Justice, when a question
arises whether the prescribed limits have been
exceeded, must of necessity determine that question;
and the only way in which they can properly do so, is
by looking to the terms of the Constitution by which,
affirmatively, the legislative powers were created, and
by which, negatively, they are restricted. If what has
been done is legislation, within the general scope of
the affirmative words which give the power, and if it
violates no express condition or restriction by which
that power is limited it is not for any Court to inquire
further, or to enlarge constructively those conditions
and restrictions".
5. Education is a process which engages many different
actors : the one who provides education (the teacher, the
owner of an educational institution, the parents), the one who
3
receives education (the child, the pupil) and the one who is
legally responsible for the one who receives education (the
parents, the legal guardians, society and the State). These
actors influence the right to education. The 2009 Act makes
the Right of Children to Free and Compulsory Education
justiciable. The 2009 Act envisages that each child must
have access to a neighbourhood school. The 2009 Act has
been enacted keeping in mind the crucial role of Universal
Elementary Education for strengthening the social fabric of
democracy through provision of equal opportunities to all.
The Directive Principles of State Policy enumerated in our
Constitution lay down that the State shall provide free and
compulsory education to all children upto the age of 14 years.
The said Act provides for right (entitlement) of children to free
and compulsory admission, attendance and completion of
elementary education in a neighbourhood school. The word
"Free" in the long title to the 2009 Act stands for removal by
the State of any financial barrier that prevents a child from
completing 8 years of schooling. The word "Compulsory" in
that title stands for compulsion on the State and the parental
duty to send children to school. To protect and give effect to
this right of the child to education as enshrined in Article 21
4
and Article 21A of the Constitution, the Parliament has
enacted the 2009 Act.
6. The 2009 Act received the assent of the President on
26.8.2009. It came into force w.e.f. 1.4.2010. The provisions
of this Act are intended not only to guarantee right to free and
compulsory education to children, but it also envisages
imparting of quality education by providing required
infrastructure and compliance of specified norms and
standards in the schools. The Preamble states that the 2009
Act stands enacted inter alia to provide for free and
compulsory education to all children of the age of 6 to 14
years. The said Act has been enacted to give effect to Article
21A of the Constitution.
Scope of the 2009 Act
7. Section 3(1) of the 2009 Act provides that every child of
the age of 6 to 14 years shall have a right to free and
compulsory education in a neighbourhood school till
completion of elementary education. Section 3(2) inter alia
provides that no child shall be liable to pay any kind of fee or
charges or expenses which may prevent him or her from
pursuing and completing the elementary education. An
educational institution is charitable. Advancement of
5
education is a recognised head of charity. Section 3(2) has
been enacted with the object of removing financial barrier
which prevents a child from accessing education. The other
purpose of enacting Section 3(2) is to prevent educational
institutions charging capitation fees resulting in creation of a
financial barrier which prevents a child from accessing or
exercising its right to education which is now provided for
vide Article 21A. Thus, sub-Section (2) provides that no child
shall be liable to pay any kind of fee or charges or expenses
which may prevent him or her from pursuing or completing
the elementary education. Section 4 inter alia provides for
special provision for children not admitted to or who have not
completed elementary education. Section 5 deals with the
situation where there is no provision for completion of
elementary education, then, in such an event, a child shall
have a right to seek transfer to any other school, excluding
the school specified in sub-clauses (iii) and (iv) of clause (n) of
Section 2, for completing his or her elementary education.
Chapter III provides for duties of appropriate government,
local authority and parents. Section 6 imposes an obligation
on the appropriate government and local authority to
establish a school within such areas or limits of
6
neighbourhood, as may be prescribed, where it is not so
established, within 3 years from the commencement of the
2009 Act. The emphasis is on providing "neighbourhood
school" facility to the children at the Gram Panchayat level.
Chapter IV of the 2009 Act deals with responsibilities of
schools and teachers. Section 12 (1)(c) read with Section 2(n)
(iii) and (iv) mandates that every recognised school imparting
elementary education, even if it is an unaided school, not
receiving any kind of aid or grant to meet its expenses from
the appropriate government or the local authority, is obliged
to admit in Class I, to the extent of at least 25% of the
strength of that class, children belonging to weaker section
and disadvantaged group in the neighbourhood and provide
free and compulsory elementary education till its completion.
As per the proviso, if the School is imparting pre-school
education, the same regime would apply. By virtue of Section
12(2) the unaided school which has not received any land,
building, equipment or other facilities, either free of cost or at
concessional rate, would be entitled for reimbursement of the
expenditure 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
7
may be prescribed. Such reimbursement shall not exceed per
child expenditure incurred by a school established, owned or
controlled by the appropriate government or a local authority.
Section 13 envisages that no school or person shall, while
admitting a child, collect any capitation fee and subject the
child or his or her parents to any screening procedure.
Section 15 mandates that a child shall be admitted in a
school at the commencement of the academic year or within
the prescribed extended period. Sections 16 and 17 provide
for prohibition of holding back and expulsion and of physical
punishment or mental harassment to a child. Section 18
postulates that after the commencement of the 2009 Act no
school, other than the excepted category, can be established
or can function without obtaining a certificate of recognition
from the appropriate authority. The appropriate authority
shall be obliged to issue the certificate of recognition within
the prescribed period specifying the conditions there for, if the
school fulfills the norms and standards specified under
Sections 19 and 25 read with the Schedule to the 2009 Act.
In the event of contravention of the conditions of recognition,
the prescribed authority can withdraw recognition after giving
an opportunity of being heard to such school. The order of
8
withdrawal of recognition should provide a direction to
transfer the children studying in the de-recognised school to
be admitted to the specified neighbourhood school. Upon
withdrawal of recognition, the de-recognised school cannot
continue to function, failing which, is liable to pay fine as per
Section 19(5). If any person establishes or runs a school
without obtaining certificate of recognition, or continues to
run a school after withdrawal of the recognition, shall be
liable to pay fine as specified in Section 19(5). The norms and
standards for establishing or for grant of recognition to a
school are specified in Section 19 read with the Schedule to
the 2009 Act. All schools which are established before the
commencement of the 2009 Act in terms of Section 19(2) are
expected to comply with specified norms and standards
within 3 years from the date of such commencement. Failure
to do so would entail in de-recognition of such school.
Section 22 postulates that the School Management
Committee constituted under Section 21, shall prepare a
School Development Plan in the prescribed manner. Section
22(2) provides that the School Development Plan so prepared
shall be the basis for the grants to be made by the
appropriate government or local authority, as the case may
9
be. That plan, however, cannot have any impact on
consideration of application for grant of recognition for
establishing an unaided school. To ensure that teachers
should contribute in imparting quality education in the
school itself, Section 28 imposes total prohibition on them to
engage in private tuition or private teaching activities.
Chapter VI inter alia provides for protection of rights of
children. Section 32 thus provides that any person having
grievance relating to the right of child under the 2009 Act,
may make a written complaint to the local authority having
jurisdiction, who in turn is expected to decide it within three
months after affording a reasonable opportunity of being
heard to the parties concerned. In addition, in terms of
Section 31, the Commissions constituted under the
provisions of the Commissions for Protection of Child Rights
Act, 2005 can monitor the child's right to education, so as to
safeguard the right of the child upon receiving any complaint
in that behalf relating to free and compulsory education.
8. By virtue of the 2009 Act, all schools established prior to
the commencement of the said Act are thus obliged to fulfill
the norms and standards specified inter alia in Sections 25,
26 and the Schedule of that Act. [See Section 19(2)]. The
10
State is also expected to first weed out those schools which
are non-performing, or under-performing or non-compliance
schools and upon closure of such schools, the students and
the teaching and non-teaching staff thereof should be
transferred to the neighbourhood school. The provision is
meant not only to strengthen the latter school by adequate
number of students but to consolidate and to impart quality
education due to the addition of teaching staff. Needless to
observe, that if there is inadequate response to the
government funded school, it is but appropriate that either
the divisions thereof or the school itself be closed and the
students and staff of such schools be transferred to a
neighbourhood school by resorting to Section 18(3) of the
2009 Act. Only after taking such decisions could the School
Development Plan represent the correct position regarding
the need of government aided schools in every locality across
the State. Besides, it will ensure proper and meaningful
utilization of public funds. In absence of such exercise, the
end result would be that on account of existing non-
performing or under-performing or non-compliance schools,
the School Development Plan would not reckon that locality
for establishment of another school. In our view, even the
11
State Government(s), by resorting to the provision of the 2009
Act, must take opportunity to re-organise its financial outflow
at the micro level by weeding out the non-performing or
under-performing or non-compliance schools receiving grant-
in- aid, so as to ensure that only such government funded
schools, who fulfill the norms and standards, are allowed to
continue, to achieve the object of the 2009 Act of not only
providing free and compulsory education to the children in
the neighbourhood school but also to provide quality
education. Thus, there is a power in the 2009 Act coupled
with the duty of the State to ensure that only such
government funded schools, who fulfill the norms and
standards, are allowed to continue with the object of
providing free and compulsory education to the children in
the neighbourhood school.
Validity and applicability of the 2009 Act qua unaided
non-minority schools
9. To begin with, we need to understand the scope of
Article 21A. It provides that the State shall provide free and
compulsory education to all children of the age of 6 to 14
years in such manner as the State may, by law, determine.
Thus, under the said Article, the obligation is on the State to
12
provide free and compulsory education to all children of
specified age. However, under the said Article, the manner in
which the said obligation will be discharged by the State has
been left to the State to determine by law. Thus, the State
may decide to provide free and compulsory education to all
children of the specified age through its own schools or
through government aided schools or through unaided private
schools. The question is whether such a law transgresses
any constitutional limitation? In this connection, the first
and foremost principle we have to keep in mind is that what
is enjoined by the directive principles (in this case Articles 41,
45 and 46) must be upheld as a "reasonable restriction"
under Articles 19(2) to 19(6). As far back as 1952, in State of
Bihar v. Maharajadhiraja Sir Kameshwar Singh of
Darbhanga [(1952) SCR 889], this Court has illustrated how a
directive principle may guide the Court in determining crucial
questions on which the validity of an important enactment
may be hinged. Thus, when the courts are required to decide
whether the impugned law infringes a fundamental right, the
courts need to ask the question whether the impugned law
infringes a fundamental right within the limits justified by the
directive principles or whether it goes beyond them. For
13
example, the scope of the right of equality of opportunity in
matters relating to employment (Article 16) to any office in the
State appears more fully defined when read with the
obligation of the State to promote with special care the
economic and other interests of the weaker sections (Article
46). Similarly, our understanding of the right "to practice any
profession or occupation" [Article 19(1)(g)] is clarified when we
read along with that right the obligation of the State to see
that the health of the workers and the tender age of the
children are not abused (Article 39). Thus, we need to
interpret the fundamental rights in the light of the
directive principles. The above principles are very relevant
in this case because the very content of Article 21A comes
from reading of Articles 41, 45 and 46 and, more particularly,
from Article 45 (as it then stood before the Constitution
(Eighty sixth Amendment) Act, 2002). It has been urged
before us that Article 45, as it then stood, imposed obligation
on the State to provide for free and compulsory education for
all children until they complete the age of 14 years and that
the said obligation cannot be shifted or passed on to an
unaided school, as defined in Section 2(n)(iv) of the 2009 Act.
To answer the said contention, one needs to appreciate the
14
scope of Articles 21, 21A, 19(1)(g) and Articles 41, 45 and 46
of the Constitution. At the outset, it may be stated, that
fundamental rights have two aspects they act as fetter on
plenary legislative powers and, secondly, they provide
conditions for fuller development of our people including their
individual dignity. Right to live in Article 21 covers access to
education. But unaffordability defeats that access. It defeats
the State's endeavour to provide free and compulsory
education for all children of the specified age. To provide for
free and compulsory education in Article 45 is not the same
thing as to provide free and compulsory education. The word
"for" in Article 45 is a preposition. The word "education" was
read into Article 21 by the judgments of this Court. However,
Article 21 merely declared "education" to fall within the
contours of right to live. To provide for right to access
education, Article 21A was enacted to give effect to Article 45
of the Constitution. Under Article 21A, right is given to the
State to provide by law "free and compulsory education".
Article 21A contemplates making of a law by the State. Thus,
Article 21A contemplates right to education flowing from the
law to be made which is the 2009 Act, which is child centric
and not institution centric. Thus, as stated, Article 21A
15
provides that the State shall provide free and compulsory
education to all children of the specified age in such manner
as the State may, by law, determine. The manner in which
this obligation will be discharged by the State has been left to
the State to determine by law. The 2009 Act is thus enacted
in terms of Article 21A. It has been enacted primarily to
remove all barriers (including financial barriers) which impede
access to education. One more aspect needs to be
highlighted. It is not in dispute that education is a recognised
head of "charity" [see T.M.A. Pai Foundation v. State of
Karnataka (2002) 8 SCC 481]. Therefore, even according to
T.M.A. Pai Foundation, if an educational institution goes
beyond "charity" into commercialization, it would not be
entitled to protection of Article 19(1)(g). This is where the
paradox comes in. If education is an activity which is
charitable, could the unaided non-minority educational
institution contend that the intake of 25% children belonging
to weaker section and disadvantaged group only in class I as
provided for in Section 12(1)(c) would constitute violation of
Article 19(1)(g)? Would such a provision not be saved by the
principle of reasonable restriction imposed in the interest of
the general public in Article 19(6) of the Constitution?
16
10. Coming to the principle of reasonableness, it may be
stated, that though subject-wise, Article 21A deals with
access to education as against right to establish and
administer educational institution in Article 19(1)(g), it is now
not open to anyone to contend that the law relating to right to
access education within Article 21A does not have to meet the
requirement of Article 14 or Article 19 for its reasonableness.
[See Khudiram Das v. State of West Bengal reported in
(1975) 2 SCR 832] After the judgment of this Court in
Maneka Gandhi v. Union of India [(1978) 1 SCC 248], the
principle of reasonableness is applicable to Article 14 of the
Constitution. As held by this Court in Glanrock Estate
Private Limited v. State of Tamil Nadu [(2010) 10 SCC 96],
Article 21 (right to life) remains the core of the Constitution
around which Article 14, Article 19 and others revolve. In
other words, all other fundamental rights in Part III would be
dependent upon right to life in Article 21 as interpreted by
this Court to include right to live with dignity, right to
education, etc. At the end of the day, whether one adopts the
pith and substance test or the nature and character of the
legislation test or the effect test, one finds that all these tests
17
have evolved as rules of interpretation only as a matter of
reasonableness. They help us to correlate Article 21 with
Article 14, Article 19 and, so on. Applying the above principle
of reasonableness, though the right to access education falls
as a subject matter under Article 21A and though to
implement the said Article, Parliament has enacted the 2009
Act, one has to judge the validity of the said Act in the light of
the principle of reasonableness in Article 19(6), particularly,
when in T.M.A. Pai Foundation and in P.A. Inamdar v.
State of Maharashtra [(2005) 6 SCC 537], it has been held
that right to establish and administer an educational
institution falls under Article 19(1)(g) of the Constitution.
Thus, the question which arises for determination is
whether Section 12(1)(c) of the 2009 Act is a reasonable
restriction on the non-minority's right to establish and
administer an unaided educational institution under Article
19(6)? Article 21 says that "no person shall be deprived of
his life...except according to the procedure established by law"
whereas Article 19(1)(g) under the chapter "right to freedom"
says that all citizens have the right to practice any profession
or to carry on any occupation, trade or business which
freedom is not absolute but which could be subjected to
18
social control under Article 19(6) in the interest of general
public. By judicial decisions, right to education has been
read into right to life in Article 21. A child who is denied right
to access education is not only deprived of his right to live
with dignity, he is also deprived of his right to freedom of
speech and expression enshrined in Article 19(1)(a). The
2009 Act seeks to remove all those barriers including
financial and psychological barriers which a child belonging
to the weaker section and disadvantaged group has to face
while seeking admission. It is true that, as held in T.M.A. Pai
Foundation as well as P.A. Inamdar, the right to establish
and administer an educational institution is a fundamental
right, as long as the activity remains charitable under Article
19(1)(g), however, in the said two decisions the correlation
between Articles 21 and 21A, on the one hand, and Article
19(1)(g), on the other, was not under consideration. Further,
the content of Article 21A flows from Article 45 (as it then
stood). The 2009 Act has been enacted to give effect to Article
21A. For the above reasons, since the Article 19(1)(g) right is
not an absolute right as Article 30(1), the 2009 Act cannot be
termed as unreasonable. To put an obligation on the unaided
non-minority school to admit 25% children in class I under
19
Section 12(1)(c) cannot be termed as an unreasonable
restriction. Such a law cannot be said to transgress any
constitutional limitation. The object of the 2009 Act is to
remove the barriers faced by a child who seeks admission to
class I and not to restrict the freedom under Article 19(1)(g).
The next question that arises for determination is whether
Section 12(1)(c) of the 2009 Act impedes the right of the non-
minority to establish and administer an unaided educational
institution? At the outset, it may be noted that Article 19(6)
is a saving and enabling provision in the Constitution as it
empowers the Parliament to make a law imposing reasonable
restriction on the Article 19(1)(g) right to establish and
administer an educational institution while Article 21A
empowers the Parliament to enact a law as to the manner in
which the State will discharge its obligation to provide for free
and compulsory education. If the Parliament enacts the law,
pursuant to Article 21A, enabling the State to access the
network (including infrastructure) of schools including
unaided non-minority schools would such a law be said to be
unconstitutional, not saved under Article 19(6)? Answer is in
the negative. Firstly, it must be noted that the expansive
provisions of the 2009 Act are intended not only to guarantee
20
the right to free and compulsory education to children, but to
set up an intrinsic regime of providing right to education to all
children by providing the required infrastructure and
compliance of norms and standards. Secondly, unlike other
fundamental rights, the right to education places a burden
not only on the State, but also on the parent/ guardian of
every child [Article 51A(k)]. The Constitution directs both
burdens to achieve one end: the compulsory education of
children free from the barriers of cost, parental obstruction or
State inaction. Thus, Articles 21A and 51A(k) balance the
relative burdens on the parents and the State. Thus, the
right to education envisages a reciprocal agreement between
the State and the parents and it places an affirmative burden
on all stakeholders in our civil society. Thirdly, right to
establish an educational institution has now been recognized
as a fundamental right within the meaning of Article 19(1)(g).
This view is enforced by the opinion of this Court in T.M.A.
Pai Foundation and P.A. Inamdar that all citizens have a
right to establish and administer educational institutions
under Articles 19(1)(g) and 26 but that right is subject to the
provisions of Articles 19(6) and 26(a). The constitutional
obligation of the State to provide for free and compulsory
21
education to the specified category of children is co-extensive
with the fundamental right guaranteed under Article 19(1)(g)
to establish an educational institution. Lastly, the
fundamental right to establish an educational institution
cannot be confused with the right to ask for recognition or
affiliation. The exercise of a fundamental right to establish
and administer an educational institution can be controlled in
a number of ways. Indeed, matters relating to the right to
grant of recognition and/ or affiliation are covered within the
realm of statutory right, which, however, will have to satisfy
the test of reasonable restrictions [see Article 19(6)]. Thus,
from the scheme of Article 21A and the 2009 Act, it is clear
that the primary obligation is of the State to provide for free
and compulsory education to children between the age of 6 to
14 years and, particularly, to children who are likely to be
prevented from pursuing and completing the elementary
education due to inability to afford fees or charges.
Correspondingly, every citizen has a right to establish and
administer educational institution under Article 19(1)(g) so
long as the activity remains charitable. Such an activity
undertaken by the private institutions supplements the
primary obligation of the State. Thus, the State can regulate
22
by law the activities of the private institutions by imposing
reasonable restrictions under Article 19(6). The 2009 Act not
only encompasses the aspects of right of children to free and
compulsory education but to carry out the provisions of the
2009 Act, it also deals with the matters pertaining to
establishment of school (s) as also grant of recognition (see
section 18). Thus, after the commencement of the 2009 Act,
the private management intending to establish the school has
to make an application to the appropriate authority and till
the certificate is granted by that authority, it cannot establish
or run the school. The matters relevant for the grant of
recognition are also provided for in Sections 19, 25 read with
the Schedule to the Act. Thus, after the commencement of
the 2009 Act, by virtue of Section 12(1)(c) read with Section
2(n)(iv), the State, while granting recognition to the private
unaided non-minority school, may specify permissible
percentage of the seats to be earmarked for children who may
not be in a position to pay their fees or charges. In T.M.A.
Pai Foundation, this Court vide para 53 has observed that
the State while prescribing qualifications for admission in a
private unaided institution may provide for condition of giving
admission to small percentage of students belonging to
23
weaker sections of the society by giving them freeships, if not
granted by the government. Applying the said law, such a
condition in Section 12(1)(c) imposed while granting
recognition to the private unaided non-minority school cannot
be termed as unreasonable. Such a condition would come
within the principle of reasonableness in Article 19(6).
Indeed, by virtue of Section 12(2) read with Section 2(n)(iv),
private unaided school would be entitled to be reimbursed
with the expenditure incurred by it in providing free and
compulsory education to children belonging to the above
category to the extent of per child expenditure incurred by the
State in a school specified in Section 2(n)(i) or the actual
amount charged from the child, whichever is less. Such a
restriction is in the interest of the general public. It is also a
reasonable restriction. Such measures address two aspects,
viz., upholding the fundamental right of the private
management to establish an unaided educational institution
of their choice and, at the same time, securing the interests of
the children in the locality, in particular, those who may not
be able to pursue education due to inability to pay fees or
charges of the private unaided schools. We also do not see
any merit in the contention that Section 12(1)(c) violates
24
Article 14. As stated, Section 12(1)(c) inter alia provides for
admission to class I, to the extent of 25% of the strength of
the class, of the children belonging to weaker section and
disadvantaged group in the neighbourhood and provide free
and compulsory elementary education to them till its
completion. The emphasis is on "free and compulsory
education". Earmarking of seats for children belonging to a
specified category who face financial barrier in the matter of
accessing education satisfies the test of classification in
Article 14. Further, Section 12(1)(c) provides for level playing
field in the matter of right to education to children who are
prevented from accessing education because they do not have
the means or their parents do not have the means to pay for
their fees. As stated above, education is an activity in which
we have several participants. There are number of
stakeholders including those who want to establish and
administer educational institutions as these supplement the
primary obligation of the State to provide for free and
compulsory education to the specified category of children.
Hence, Section 12(1)(c) also satisfies the test of
reasonableness, apart from the test of classification in Article
14.
25
11. The last question which we have to answer under this
head is whether Section 12(1)(c) runs counter to the
judgments of this Court in T.M.A. Pai Foundation and P.A.
Inamdar or principles laid down therein? According to the
petitioners, T.M.A. Pai Foundation defines various rights
and has held vide para 50 that right to establish and
administer broadly comprises the following:- (i) right to admit
students (ii) right to set up a reasonable fee structure etc. (the
rest are not important for discussion under this Head). That,
T.M.A. Pai Foundation lays down the essence and structure
of rights in Article 19(1)(g) insofar as they relate to
educational institutions in compliance with (a) the Charity
Principle (b) the Autonomy Principle (c) the Voluntariness
Principle (d) Anti-nationalisation (e) Co-optation Principle.
In support, reliance is placed by the petitioners on number of
paras from the above two judgments. At the outset, we may
reiterate that Article 21A of the Constitution provides that the
State shall provide free and compulsory education to all
children of the specified age in such manner as the State
may, by law, determine. Thus, the primary obligation to
provide free and compulsory education to all children of the
specified age is on the State. However, the manner in which
26
this obligation will be discharged by the State has been left to
the State to determine by law. The State may do so through
its own schools or through aided schools or through private
schools, so long as the law made in this regard does not
transgress any other constitutional limitation. This is because
Article 21A vests the power in the State to decide the manner
in which it will provide free and compulsory education to the
specified category of children. As stated, the 2009 Act has
been enacted pursuant to Article 21A. In this case, we are
concerned with the interplay of Article 21, Article 21A, on the
one hand, and the right to establish and administer
educational institution under Article 19(1)(g) read with Article
19(6). That was not the issue in T.M.A. Pai Foundation nor
in P.A. Inamdar. In this case, we are concerned with the
validity of Section 12(1)(c) of the 2009 Act. Hence, we are
concerned with the validity of the law enacted pursuant to
Article 21A placing restrictions on the right to establish and
administer educational institutions (including schools) and
not the validity of the Scheme evolved in Unni Krishnan, J.P.
v. State of Andhra Pradesh [(1993) 1 SCC 645]. The above
judgments in T.M.A. Pai Foundation and P.A. Inamdar were
not concerned with interpretation of Article 21A and the 2009
27
Act. It is true that the above two judgments have held that all
citizens have a right to establish and administer educational
institutions under Article 19(1)(g), however, the question as to
whether the provisions of the 2009 Act constituted a
restriction on that right and if so whether that restriction was
a reasonable restriction under Article 19(6) was not in issue.
Moreover, the controversy in T.M.A. Pai Foundation arose in
the light of the scheme framed in Unni Krishnan's case and
the judgment in P.A. Inamdar was almost a sequel to the
directions in Islamic Academy of Education v. State of
Karnataka [(2003) 6 SCC 697] in which the entire focus was
Institution centric and not child centric and that too in the
context of higher education and professional education where
the level of merit and excellence have to be given a different
weightage than the one we have to give in the case of
Universal Elementary Education for strengthening social
fabric of democracy through provision of equal opportunities
to all and for children of weaker section and disadvantaged
group who seek admission not to higher education or
professional courses but to Class I. In this connection, the
relevant paras from T.M.A. Pai Foundation make the
position clear. They are paras 37, 39, 40, 42, 45, 48, 49 and
28
50 (read together), 51, 53, 56, 58 - 61, 62, 67, 68, 70 etc.,
similarly, paras 26, 35, 104, 146 of P.A. Inamdar. We quote
the relevant para in support of what we have stated above:
T.M.A. Pai Foundation
Para 48 read with para 50
48. Private education is one of the most dynamic
and fastest-growing segments of post-secondary
education at the turn of the twenty-first century. A
combination of unprecedented demand for access to
higher education and the inability or unwillingness of
the Government to provide the necessary support
has brought private higher education to the forefront.
Private institutions, with a long history in many
countries, are expanding in scope and number, and
are becoming increasingly important in parts of the
world that relied almost entirely on the public sector.
50. The right to establish and administer broadly
comprises the following rights:
(a) to admit students;
(b) to set up a reasonable fee structure;
(c) to constitute a governing body;
(d) to appoint staff (teaching and non-teaching);
and
(e) to take action if there is dereliction of duty on
the part of any employees.
58. For admission into any professional
institution, merit must play an important role. While
it may not be normally possible to judge the merit of
the applicant who seeks admission into a school,
while seeking admission to a professional institution
and to become a competent professional, it is
necessary that meritorious candidates are not
unfairly treated or put at a disadvantage by
preferences shown to less meritorious but more
influential applicants. Excellence in professional
29
education would require that greater emphasis be
laid on the merit of a student seeking admission.
Appropriate regulations for this purpose may be
made keeping in view the other observations made in
this judgment in the context of admissions to
unaided institutions.
59. Merit is usually determined, for admission to
professional and higher education colleges, by either
the marks that the student obtains at the qualifying
examination or school-leaving certificate stage
followed by the interview, or by a common entrance
test conducted by the institution, or in the case of
professional colleges, by government agencies.
60. Education is taught at different levels, from
primary to professional. It is, therefore, obvious that
government regulations for all levels or types of
educational institutions cannot be identical; so also,
the extent of control or regulation could be greater
vis-a-vis aided institutions.
61. In the case of unaided private schools,
maximum autonomy has to be with the management
with regard to administration, including the right of
appointment, disciplinary powers, admission of
students and the fees to be charged. At the school
level, it is not possible to grant admissions on the
basis of merit. It is no secret that the examination
results at all levels of unaided private schools,
notwithstanding the stringent regulations of the
governmental authorities, are far superior to the
results of the government-maintained schools. There
is no compulsion on students to attend private
schools. The rush for admission is occasioned by the
standards maintained in such schools, and
recognition of the fact that State-run schools do not
provide the same standards of education. The State
says that it has no funds to establish institutions at
the same level of excellence as private schools. But
by curtailing the income of such private schools, it
disables those schools from affording the best
facilities because of a lack of funds. If this lowering of
standards from excellence to a level of mediocrity is
to be avoided, the State has to provide the difference
30
which, therefore, brings us back in a vicious circle to
the original problem viz. the lack of State funds. The
solution would appear to lie in the States not using
their scanty resources to prop up institutions that
are able to otherwise maintain themselves out of the
fees charged, but in improving the facilities and
infrastructure of State-run schools and in
subsidizing the fees payable by the students there. It
is in the interest of the general public that more good
quality schools are established; autonomy and non-
regulation of the school administration in the right of
appointment, admission of the students and the fee
to be charged will ensure that more such institutions
are established. The fear that if a private school is
allowed to charge fees commensurate with the fees
affordable, the degrees would be "purchasable" is an
unfounded one since the standards of education can
be and are controllable through the regulations
relating to recognition, affiliation and common final
examinations.
P.A. Inamdar
26. These matters have been directed to be placed
for hearing before a Bench of seven Judges under
orders of the Chief Justice of India pursuant to the
order dated 15-7-2004 in P.A. Inamdar v. State of
Maharashtra and order dated 29-7-2004 in
Pushpagiri Medical Society v. State of Kerala. The
aggrieved persons before us are again classifiable in
one class, that is, unaided minority and non-
minority institutions imparting professional
education. The issues arising for decision before us
are only three:
(i) the fixation of "quota" of
admissions/students in respect of unaided
professional institutions;
(ii) the holding of examinations for admissions
to such colleges, that is, who will hold the
entrance tests; and
(iii) the fee structure.
104. Article 30(1) speaks of "educational
31
institutions" generally and so does Article 29(2).
These articles do not draw any distinction between
an educational institution dispensing theological
education or professional or non-professional
education. However, the terrain of thought as has
developed through successive judicial
pronouncements culminating in Pai Foundation is
that looking at the concept of education, in the
backdrop of the constitutional provisions,
professional educational institutions constitute a
class by themselves as distinguished from
educational institutions imparting non-professional
education. It is not necessary for us to go deep into
this aspect of the issue posed before us inasmuch as
Pai Foundation has clarified that merit and
excellence assume special significance in the context
of professional studies. Though merit and excellence
are not anathema to non-professional education, yet
at that level and due to the nature of education
which is more general, the need for merit and
excellence therein is not of the degree as is called for
in the context of professional education.
146. Non-minority unaided institutions can also
be subjected to similar restrictions which are found
reasonable and in the interest of the student
community. Professional education should be made
accessible on the criterion of merit and on non-
exploitative terms to all eligible students on a
uniform basis. Minorities or non-minorities, in
exercise of their educational rights in the field of
professional education have an obligation and a duty
to maintain requisite standards of professional
education by giving admissions based on merit and
making education equally accessible to eligible
students through a fair and transparent admission
procedure and based on a reasonable fee structure.
12. P.A. Inamdar holds that right to establish and
administer educational institution falls in Article 19(1)(g). It
32
further holds that seat-sharing, reservation of seats, fixing of
quotas, fee fixation, cross-subsidization, etc. imposed by
judge-made scheme in professional/ higher education is an
unreasonable restriction applying the principles of
Voluntariness, Autonomy, Co-optation and Anti-
nationalisation, and, lastly, it deals with inter-relationship of
Articles 19(1)(g), 29(2) and 30(1) in the context of the minority
and non-minority's right to establish and administer
educational institutions. The point here is how does one read
the above principles of Autonomy, Voluntariness, Co-optation
and Anti-nationalisation of seats. On reading T.M.A. Pai
Foundation and P.A. Inamdar in proper perspective, it
becomes clear that the said principles have been applied in
the context of professional/ higher education where merit and
excellence have to be given due weightage and which tests do
not apply in cases where a child seeks admission to class I
and when the impugned Section 12(1)(c) seeks to remove the
financial obstacle. Thus, if one reads the 2009 Act including
Section 12(1)(c) in its application to unaided non-minority
school(s), the same is saved as reasonable restriction under
Article 19(6).
33
13. However, we want the Government to clarify the position
on one aspect. There are boarding schools and orphanages in
several parts of India. In those institutions, there are day
scholars and boarders. The 2009 Act could only apply to day
scholars. It cannot be extended to boarders. To put the
matter beyond doubt, we recommend that appropriate
guidelines be issued under Section 35 of the 2009 Act
clarifying the above position.
Validity and applicability of the 2009 Act qua unaided
minority schools
14. The inspiring preamble to our Constitution shows that
one of the cherished objects of our Constitution is to assure
to all its citizens the liberty of thought, expression, belief,
faith and worship. To implement and fortify these purposes,
Part III has provided certain fundamental rights including
Article 26 of the Constitution which guarantees the right of
every religious denomination or a section thereof, to establish
and maintain institutions for religious and charitable
purposes; to manage its affairs in matters of religion; to
acquire property and to administer it in accordance with law.
Articles 29 and 30 confer certain educational and cultural
rights as fundamental rights.
34
15. Article 29(1) confers on any section of the citizens a right
to conserve its own language, script or culture by and
through educational institutions and makes it obvious that a
minority could conserve its language, script or culture and,
therefore, the right to establish institutions of its choice is a
necessary concomitant to the right to conserve its distinctive
language, script or culture and that right is conferred on all
minorities by Article 30(1). That right, however, is subject to
the right conferred by Article 29(2).
16. Article 30(1) gives the minorities two rights: (a) to
establish and (b) to administer educational institutions of
their choice. The real import of Article 29(2) and Article 30(1)
is that they contemplate a minority institution with a sprinkle
of outsiders admitted into it. By admitting a non-member
into it the minority institution does not shed its character and
cease to be a minority institution.
17. The key to Article 30(1) lies in the words "of their choice".
18. The right established by Article 30(1) is a fundamental
right declared in terms absolute unlike the freedoms
guaranteed by Article 19 which is subject to reasonable
restrictions. Article 30(1) is intended to be a real right for the
35
protection of the minorities in the matter of setting up
educational institutions of their own choice. However,
regulations may lawfully be imposed either by legislative or
executive action as a condition of receiving grant or of
recognition. However, such regulation must satisfy the test of
reasonableness and that such regulation should make the
educational institution an effective vehicle of education for
the minority community or for the persons who resort to it.
Applying the above test in the case of Rev. Sidhajbhai Sabhai
v. State of Bombay [1963] SCR 837, this Court held the rule
authorizing reservation of seats and the threat of withdrawal
of recognition under the impugned rule to be violative of
Article 30(1).
19. The above well-settled principles have to be seen in the
context of the 2009 Act enacted to implement Article 21A of
the Constitution. At the very outset, the question that arises
for determination is what was the intention of the
Parliament? Is the 2009 Act intended to apply to unaided
minority schools? In answer to the above question, it is
important to note that in the case of P.A. Inamdar, this Court
held that there shall be no reservations in private unaided
36
colleges and that in that regard there shall be no difference
between the minority and non-minority institutions.
However, by the Constitution (Ninety-third Amendment) Act,
2005, Article 15 is amended. It is given Article 15(5). The
result is that P.A. Inamdar has been overruled on two
counts: (a) whereas this Court in P.A. Inamdar had stated
that there shall be no reservation in private unaided colleges,
the Amendment decreed that there shall be reservations; (b)
whereas this Court in P.A. Inamdar had said that there shall
be no difference between the unaided minority and non-
minority institutions, the Amendment decreed that there shall
be a difference. Article 15(5) is an enabling provision and it
is for the respective States either to enact a legislation or
issue an executive instruction providing for reservation except
in the case of minority educational institutions referred to in
Article 30(1). The intention of the Parliament is that the
minority educational institution referred to in Article 30(1) is
a separate category of institutions which needs protection of
Article 30(1) and viewed in that light we are of the view that
unaided minority school(s) needs special protection under
Article 30(1). Article 30(1) is not conditional as Article 19(1)(g).
In a sense, it is absolute as the Constitution framers thought
37
that it was the duty of the Government of the day to protect
the minorities in the matter of preservation of culture,
language and script via establishment of educational
institutions for religious and charitable purposes [See: Article
26]. Reservations of 25% in such unaided minority schools
result in changing the character of the schools if right to
establish and administer such schools flows from the right to
conserve the language, script or culture, which right is
conferred on such unaided minority schools. Thus, the 2009
Act including Section 12(1)(c) violates the right conferred on
such unaided minority schools under Article 30(1). However,
when we come to aided minority schools we have to keep in
mind Article 29(2). As stated, Article 30(1) is subject to Article
29(2). The said Article confers right of admission upon every
citizen into a State-aided educational institution. Article
29(2) refers to an individual right. It is not a class right. It
applies when an individual is denied admission into an
educational institution maintained or aided by the State. The
2009 Act is enacted to remove barriers such as financial
barriers which restrict his/her access to education. It is
enacted pursuant to Article 21A. Applying the above tests, we
hold that the 2009 Act is constitutionally valid qua aided
38
minority schools.
Conclusion (according to majority):
20. Accordingly, we hold that the Right of Children to Free
and Compulsory Education Act, 2009 is constitutionally valid
and shall apply to the following:
(i) a school established, owned or controlled by the
appropriate Government or a local authority;
(ii) an aided school including aided minority school(s)
receiving aid or grants to meet whole or part of its
expenses from the appropriate Government or the local
authority;
(iii) a school belonging to specified category; and
(iv) an unaided non-minority school not receiving any kind
of aid or grants to meet its expenses from the
appropriate Government or the local authority.
However, the said 2009 Act and in particular Sections
12(1)(c) and 18(3) infringes the fundamental freedom
guaranteed to unaided minority schools under Article 30(1)
and, consequently, applying the R.M.D. Chamarbaugwalla v.
Union of India [1957 SCR 930] principle of severability, the
39
said 2009 Act shall not apply to such schools.
21. This judgment will operate from today. In other words,
this will apply from the academic year 2012-13. However,
admissions given by unaided minority schools prior to the
pronouncement of this judgment shall not be reopened.
22. Subject to what is stated above, the writ petitions are
disposed of with no order as to costs.
.......................................CJI
(S. H. Kapadia)
.........................................J.
(Swatanter Kumar)
New Delhi;
April 12, 2012
40
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.95 OF 2010
SOCIETY FOR UN-AIDED
P.SCHOOL OF RAJASTHAN ...Petitioner(s)
Versus
U.O.I. & ANR. ..Respondent(s)
WITH
W.P. (C) NOs.98/2010, 126/2010, 137/2010, 228/2010,
269/2010, 310/2010, 364/2010, 384/2010, 22/2011,
24/2011, 21/2011, 47/2011, 59/2011, 50/2011, 83/2011,
88/2011, 99/2011, 102/2011, 104/2011, 86/2011,
101/2011, 115/2011, 154/2011, 126/2011, 118/2011,
186/2011, 148/2011, 176/2011, 205/2011, 238/2011 and
239/2011
JUDGMENT
K. S. Radhakrishnan, J.
We are, in these cases, concerned with the
constitutional validity of the Right of Children to Free and
Compulsory Education Act 2009 (35 of 2009) [in short, the
41
Act], which was enacted following the insertion of Article 21A
by the Constitution (Eighty-sixth Amendment) Act, 2002.
Article 21A provides for free and compulsory education to all
children of the age 6 to 14 years and also casts an obligation
on the State to provide and ensure admission, attendance
and completion of elementary education in such a manner
that the State may by law determine. The Act is, therefore,
enacted to provide for free and compulsory education to all
children of the age 6 to 14 years and is anchored in the belief
that the values of equality, social justice and democracy and
the creation of just and humane society can be achieved only
through a provision of inclusive elementary education to all
the children. Provision of free and compulsory education of
satisfactory quality to the children from disadvantaged
groups and weaker sections, it was pointed out, is not merely
the responsibility of the schools run or supported by the
appropriate government, but also of schools which are not
dependant on government funds.
2. Petitioners in all these cases, it may be mentioned, have
wholeheartedly welcomed the introduction of Article 21A in
the Constitution and acknowledged it as a revolutionary step
42
providing universal elementary education for all the children.
Controversy in all these cases is not with regard to the
validity of Article 21A, but mainly centers around its
interpretation and the validity of Sections 3, 12(1)(b) and
12(1)(c) and some other related provisions of the Act, which
cast obligation on all elementary educational institutions to
admit children of the age 6 to 14 years from their
neighbourhood, on the principle of social inclusiveness.
Petitioners also challenge certain other provisions purported
to interfere with the administration, management and
functioning of those institutions. I have dealt with all those
issues in Parts I to V of my judgment and my conclusions are
in Part VI.
3. Part I of the judgment deals with the circumstances and
background for the introduction of Article 21A and its scope
and object and the interpretation given by the Constitution
Benches of this Court on right to education. Part II of the
judgment deals with various socio-economic rights recognized
by our Constitution and the impact on other fundamental
rights guaranteed to others and the measures adopted by the
Parliament to remove the obstacles for realization of those
43
rights, in cases where there is conflict. In Part III of the
judgment, I have dealt with the obligations and
responsibilities of the non-state actors in realization of
children's rights guaranteed under Article 21A and the Act.
In Part IV, I have dealt with the constitutional validity of
Section 12(1)(b), 12(1)(c) of the Act and in Part V, I have dealt
with the challenge against other provisions of the Act and my
conclusions are in Part VI.
4. Senior lawyers Shri Rajeev Dhavan, Shri T.R.
Andhyarujina, Shri Ashok H. Desai, Shri Harish S. Salve,
Shri N. Chandrasekharan, Shri K. Parasaran, Shri Chander
Uday Singh, Shri Shekhar Naphade, Shri Vikas Singh, Shri
Arvind P. Dattar and large number of other counsel also
presented their arguments and rendered valuable assistance
to the Court. Shri Goolam E. Vahanvati, learned Attorney
General and Mrs. Indira Jaising, learned Additional Solicitor
General appeared for the Union of India.
PART I
5. In Mohini Jain v. State of Karnataka and others
[(1992) 3 SCC 666], this Court held that the right to
44
education is a fundamental right guaranteed under Article 21
of the Constitution and that dignity of individuals cannot be
assured unless accompanied by right to education and that
charging of capitation fee for admission to educational
institutions would amount to denial of citizens' right to
education and is violative of Article 14 of the Constitution.
The ratio laid down in Mohini Jain was questioned in Unni
Krishnan, J.P. and Others v. State of A.P. and Others
[(1993) 1 SCC 645] contending that if the judgment in
Mohini Jain was given effect to, many of the private
educational institutions would have to be closed down.
Mohini Jain was affirmed in Unni Krishnan to the extent of
holding that the right to education flows from Article 21 of the
Constitution and charging of capitation fee was illegal. The
Court partly overruled Mohini Jain and held that the right to
free education is available only to children until they
complete the age of 14 years and after that obligation of the
State to provide education would be subject to the limits of its
economic capacity and development. Private unaided
recognized/affiliated educational institutions running
professional courses were held entitled to charge the fee
higher than that charged by government institutions for
45
similar courses but that such a fee should not exceed the
maximum limit fixed by the State. The Court also formulated
a scheme and directed every authority to impose that scheme
upon institutions seeking recognition/affiliation, even if they
are unaided institutions. Unni Krishnan introduced the
concept of "free seats" and "payment seats" and ordered that
private unaided educational institutions should not add any
further conditions and were held bound by the scheme. Unni
Krishnan also recognized the right to education as a
fundamental right guaranteed under Article 21 of the
Constitution and held that the right is available to children
until they complete the age of 14 years.
6. The Department of Education, Ministry of Human
Resources Development, Government of India after the
judgment in Unni Krishnan made a proposal to amend the
Constitution to make the right to education a fundamental
right for children up to the age of 14 years and also a
fundamental duty of citizens of India so as to achieve the goal
of universal elementary education. The Department also
drafted a Bill [Constitution (Eighty-third Amendment) Bill,
1997] so as to insert a new Article 21A in the Constitution
46
which read as follows:
"21A. Right to education.
21A(1) The State shall provide free and
compulsory education to all citizens of the age of six
to fourteen years.
Clause(2) The Right to Free and Compulsory
Education referred to in clause (1) shall be enforced
in such manner as the State may, by law,
determine.
Clause (3) The State shall not make any law, for
free and compulsory education under Clause(2), in
relation to the educational institutions not
maintained by the State or not receiving aid out of
State funds."
7. The draft Bill was presented before the Chairman, Rajya
Sabha on 28.07.1997, who referred the Bill to a Committee
for examination and report. The Committee called for
suggestions/views from individuals, organisations,
institutions etc. and ultimately submitted its report on
4.11.1997. The Committee in its Report referred to the
written note received from the Department of Education and
stated as follows:
"Department in its written note stated that the
Supreme Court in its judgment in Unni Krishnan
J.P. v. Andhra Pradesh, has held that children of
this country have a Fundamental Right to free
education until they complete the age of 14 years.
47
This right flows from Article 21 relating to personal
liberty and its content, parameters have to be
determined in the light of Article 41 which provides
for right to work, to education and to public
assistance in certain cases and Article 45 which
provides for free and compulsory education to
children up to the age of 14 years. The apex Court
has observed that the obligations created by these
Articles of the Constitution can be discharged by
the State either by establishing institutions of its
own or by aiding recognising and granting affiliation
to educational institutions. On clause (3) of the
proposed Article 21, the report stated as follows:
"11. Clause (3) of the proposed Article 21
provides that the State shall not make any law
for free and compulsory education under clause
(2), in relation to the educational institutions
not maintained by the State or not receiving aid
out of State funds. However, strong
apprehensions were voiced about clause (3) of
the proposed new Article 21A. Many of the
people in the written memoranda and also
educational experts in the oral evidence have
expressed displeasure over keeping the private
educational institutions outside the purview of
the fundamental right to be given to the
children. The Secretary stated that the
Supreme Court in the Unni Krishnan judgment
said that wherever the State is not providing
any aid to any institution, such an institution
need not provide free education. The
Department took into account the Supreme
Court judgment in the Unni Krishnan case
which laid down that no private institution, can
be compelled to provide free services. Therefore,
they provided in the Constitutional amendment
that this concept of free education need not be
extended to schools or institutions which are
not aided by the Government, the Secretary
added. He, however, stated that there was no
intention, to exclude them from the overall
responsibility to provide education."
48
8. The Committee specifically referred to the judgment in
Unni Krishnan in paragraph 15.14 of the Report. Reference
was also made to the dissenting note of one of the members.
Relevant portion of the report is extracted below:
"15.14. Clause (3) of the proposed Article 21(A)
prohibits the State from making any law for free
and compulsory education in relation to educational
institutions not maintained by the State or not
receiving aid out of State funds. This issue was
discussed by the Members of the Committee at
length. The members were in agreement that even
though the so called private institutions do not
receive any financial aid, the children studying in
those institutions should not be deprived of their
fundamental right. As regards the interpretation as
to whether the private institutions should provide
free education or not, the Committee is aware of the
Supreme Court judgment given in the Unni
Krishnan case. This judgment provides the rule for
application and interpretation. In view of the
judgment, it is not necessary to make a clause in
the Constitution. It would be appropriate to leave
the interpretation to the courts instead of making a
specific provision in black and white. Some
members, however, felt that the private institutions
which do not get any financial aid, provide quality
education. Therefore, it would be inappropriate to
bring such institutions under the purview of free
education. Those members, accordingly, felt that
clause (3) should not be deleted.
15.15. The Committee, however, after a
thorough discussion feels that this provision need
not be there. The Committee recommends that
clause (3) of the proposed Article 21(A) may be
deleted. Smt. Hedwig Michael Rego, M.P. a Member
of the Committee gave a Minute of Dissent. It is
appended to the report.
49
15.16. The Committee recommends that the
Bill be passed subject to the recommendations
made in the preceding paragraphs.
MINUTES OF DISSENT
I vehemently oppose the State wanting to
introduce free and compulsory education in private,
unaided schools.
Clause 21A (3) must be inserted as I do not
wish the State to make laws regarding free and
compulsory education in relation to educational
institutions not maintained by the State or not
receiving aid out of State funds.
A Committee of State Education Ministers
have already considered the issue in view of the
Unni Krishnan case, and found it not feasible to
bring unaided private educational institutions
within the purview of the Bill.
Hence, I state once again that the proposed
clause "21A(3") must be inserted in the Bill.
Yours sincerely,
Sd/'
(SMT. HEDWIG MICHAEL REGO)"
(emphasis supplied)
9. Report referred to above was adopted by the
Parliamentary Standing Committee on Human Resource
Development and submitted the same to the Rajya Sabha on
24.11.1997 and also laid on the Table of the Lok Sabha on
24.11.1997. The Lok Sabha was however dissolved soon
thereafter and elections were declared and that Bill was not
50
further pursued.
10. The Chairman of the Law Commission who authored
Unni Krishnan judgment took up the issue suo moto.
Following the ratio in Unni Krishnan, the Law Commission
submitted its 165th Report to the Ministry of Law, Justice and
Company Affairs, Union of India vide letter dated 19.11.1998.
Law Commission in that letter stated as follows: "Law
Commission had taken up the aforesaid subject suo moto
having regard to the Directive Principle of the Constitution of
India as well as the decision of the Supreme Court of India."
11. Referring to the Constitution (Eighty-third Amendment)
Bill, 1997, Law Commission in its report in paragraph 6.1.4
stated as under:
"6.1.4 (page 165.35): The Department of
Education may perhaps be right in saying that as
of today the private educational institutions which
are not in receipt of any grant or aid from the State,
cannot be placed under an obligation to impart free
education to all the students admitted into their
institutions. However, applying the ratio of
Unnikrishnan case, it is perfectly legitimate for the
State or the affiliating Board, as the case may be, to
require the institution to admit and impart free
education to fifty per cent of the students as a
condition for affiliation or for permitting their
students to appear for the Government/Board
examination. To start with, the percentage can be
51
prescribed as twenty. Accordingly, twenty per cent
students could be selected by the concerned
institution in consultation with the local authorities
and the parent-teacher association. This proposal
would enable the unaided institutions to join the
national endeavour to provide education to the
children of India and to that extent will also help
reduce the financial burden upon the State."
(emphasis supplied)
12. The Law Commission which had initiated the
proceedings suo moto in the light of Unni Krishnan
suggested deletion of clause (3) from Article 21A
stating as follows: "So far as clause (3) is
concerned, the Law Commission states that it
should be totally recast on the light of the basic
premise of the decision in Unni Kirshnan which
has been referred to hereinabove. It would neither
be advisable nor desirable that the unaided
educational institutions are kept outside the
proposed Article altogether while the sole primary
obligation to provide education is upon the State,
the educational institutions, whether aided or
unaided supplement this effort."
Para 6.6.2 of the report reads as under:
"6.6.2. The unaided institutions should be made
aware that recognition, affiliation or permission to
52
send their children to appear for the
Government/Board examination also casts a
corresponding social obligation upon them towards
the society. The recognition/affiliation/permission
aforesaid is meant to enable them to supplement
the effort of the State and not to enable them to
make money. Since they exist and function
effectively because of such
recognition/affiliation/permission granted by public
authorities, they must and are bound to serve the
public interest. For this reason, the unaided
educational institutions must be made to impart
free education to 50% of the students admitted to
their institutions. This principle has already been
applied to medical, engineering and other colleges
imparting professional education and there is no
reason why the schools imparting
primary/elementary education should not be placed
under the same obligation. Clause (3) of proposed
Article 21A may accordingly be recast to give effect
to the above concept and obligation."
Reference may also be made to the following paragraphs
of the Report:
"6.8. The aforesaid bill was referred by the
Chairman, Rajya Sabha to the Department-Related
Parliamentary Standing Committee on Human
Resources Development. A press communiqué
inviting suggestions/views was issued on 18 th
August, 1997. The Committee considered the Bill in
four sittings and heard oral evidence. It adopted the
draft report at its meeting held on 4 th November,
1997. The report was then presented to the Rajya
Sabha on 24th November, 1997 and laid on the table
of the Lok Sabha on the same day. Unfortunately,
the Lok Sabha was dissolved soon thereafter and
elections were called.
6.8.1. The Budget Session after the new Lok
Sabha was constituted is over. There is, however,
53
no indication whether the Government is inclined to
pursue the pending bill.
6.9. The question is debatable whether it is at all
necessary to amend the Constitution when there is
an explicit recognition of the right to education till
the age of fourteen years by the Supreme Court in
Unni Krishnan's case. As the said judgment can be
overruled by a larger Bench in another case, thus
making this right to education vulnerable, it would
appear advisable to give this right constitutional
sanctity."
13. Law Commission was giving effect to the ratio of Unni
Krishnan and made suggestions to bring in Article 21A
mainly on the basis of the scheme framed in Unni Krishnan
providing "free seats" in private educational institutions.
14. The Law Commission report, report of the
Parliamentary Standing Committee, judgment in Unni
Krishnan etc. were the basis on which the Constitution
(Ninety-third Amendment) Bill, 2001 was prepared and
presented. Statement of objects and reasons of the Bill given
below would indicate that fact:
"2. With a view to making right to education free
and compulsory education a fundamental right, the
Constitution (Eighty-third Amendment ) Bill, 1997
was introduced in the Parliament to insert a new
article, namely, Article 21A conferring on all
children in the age group of 6 to14 years the right to
free and compulsory education. The said Bill was
54
scrutinized by the Parliamentary Standing
Committee on Human Resource Development and
the subject was also dealt with in its 165 th Report by
the Law Commission of India.
3. After taking into consideration the report of the
Law Commission of India and the recommendations
of the Standing Committee of Parliament, the
proposed amendments in Part III, Part IV and Part
IVA of the Constitution are being made which are as
follows:
(a) to provide for free and compulsory education to
children in the age group of 6 to 14 years and for
this purpose, a legislation would be introduced in
parliament after the Constitution (Ninety-third
Amendment) Bill, 2001 is enacted;
(b) to provide in article 45 of the Constitution that
the State shall endeavour to provide early childhood
care and education to children below the age of six
years; and
(c) to amend article 51A of the Constitution with a
view to providing that it shall be the obligation of
the parents to provide opportunities for education to
their children.
4. The Bill seeks to achieve the above objects."
15. The above Bill was passed and received the assent of
the President on 12.12.2002 and was published in the
Gazette of India on 13.12.2002 and the following provisions
were inserted in the Constitution; by the Constitution
(Eighty-sixth Amendment) Act, 2002.
Part III Fundamental Rights
55
"21A. Right to Education. The State shall
provide free and compulsory education to all
children of the age of six to fourteen years in such
manner as the State may, by law, determine.
Part IV Directive Principles of State Policy
45. Provision for early childhood care and
education to children below the age of six
years. The State shall endeavour to provide early
childhood care and education for all children until
they complete the age of six years.
Part IVA Fundamental Duties
51A. Fundamental duties - It shall be the duty of
every citizen of India
xxx xxx xxx
(k) who is a parent or guardian to provide
opportunities for education to his child or, as the
case may be, ward between the age of six and
fourteen years."
16. Reference was earlier made to the Parliamentary
Standing Committee Report, 165th Law Commission Report,
1998 and the opinion expressed by the Department of
Education so as to understand the background of the
introduction of Article 21A which is also necessary to properly
understand the scope of the Act. In Herron v. Rathmines
and Rathgar Improvement Commissioners [1892] AC 498
at p. 502, the Court held that the subject-matter with which
the Legislature was dealing, and the facts existing at the time
56
with respect to which the Legislature was legislating are
legitimate topics to consider in ascertaining what was the
object and purpose of the Legislature in passing the Act. In
Mithilesh Kumari and Another v. Prem Behari Khare
[(1989) 2 SCC 95], this Court observed that "where a
particular enactment or amendment is the result of
recommendation of the Law Commission of India, it may be
permissible to refer to the relevant report." (See also Dr.
Baliram Waman Hiray v. Justice B. Lentin and Others
[(1988) 4 SCC 419], Santa Singh v. State of Punjab [(1976)
4 SCC 190], Ravinder Kumar Sharma v. State of Assam
[(1999) 7 SCC 435].
UNNI KRISHNAN:
17. Unni Krishnan had created mayhem and raised thorny
issues on which the Law Commission had built up its edifice,
suo moto. The Law Commission had acknowledged the fact
that but for the ratio in Unni Kirshnan the unaided private
educational institutions would have no obligation to impart
free and compulsory education to the children admitted in
their institutions. Law Commission was also of the view that
the ratio in Unni Krishnan had legitimized the State or the
affiliating Board to require unaided educational institutions to
57
provide free education, as a condition for affiliation or for
permitting the students to appear for the Government/Board
examination.
18. Unni Krishnan was questioned contending that it had
imposed unreasonable restrictions under Article 19(6) of the
Constitution on the administration of the private educational
institutions and that the rights of minority communities
guaranteed under Article 29 and Article 30 were eroded.
Unni Krishnan scheme which insisted that private unaided
educational institutions should provide for "free seats" as a
condition for recognition or affiliation was also questioned
contending that the same would amount to nationalisation of
seats.
PAI FOUNDATION
19. T.M.A. Pai Foundation and others v. State of
Karnataka and others [(2002) 8 SCC 481] examined the
correctness of the ratio laid down in Unni Krishnan and also
the validity of the scheme. The correctness of the rigid
percentage of reservation laid down in St. Stephen's College
v. University of Delhi [(1992) 1 SCC 558] in the case of
58
minority aided educational institutions and the meaning and
contents of Articles 30 and 29(2) were also examined.
20. Pai Foundation acknowledged the right of all citizens
to practice any profession, trade or business under Article
19(1)(g) and Article 26 and held those rights would be subject
to the provisions that were placed under Article 19(6) and
26(a) and the rights of minority to establish and administer
educational institutions under Article 30 was also upheld.
21. Unni Krishnan scheme was held unconstitutional, but
it was ordered that there should be no capitation fee or
profiteering and reasonable surplus to meet the cost of
expansion and augmentation of facilities would not mean
profiteering. Further, it was also ordered that the expression
"education" in all the Articles of the Constitution would mean
and include education at all levels, from primary education
level up to post graduate level and the expression
"educational institutions" would mean institutions that
impart education as understood in the Constitution.
22. Pai Foundation has also recognised that the
expression "occupation" in Article 19(1)(g) is an activity of a
person undertaken as a means of livelihood or a mission in
life and hence charitable in nature and that establishing and
59
running an educational institution is an occupation, and in
that process a reasonable revenue surplus can be generated
for the purpose of development of education and expansion of
the institutions. The right to establish and administer
educational institutions, according to Pai Foundation,
comprises right to admit students, set up a reasonable fee
structure, constitute a governing body, appoint staff, teaching
and non-teaching and to take disciplinary action. So far as
private unaided educational institutions are concerned, the
Court held that maximum autonomy has to be with the
management with regard to administration, including the
right of appointment, disciplinary powers, admission of
students and the fee to be charged etc. and that the authority
granting recognition or affiliation can certainly lay down
conditions for the grant of recognition or affiliation but those
conditions must pertain broadly to academic and educational
matters and welfare of students and teachers. The Court held
that the right to establish an educational institution can be
regulated but such regulatory measures must be in general to
ensure proper academic standards, atmosphere and
infrastructure and prevention of maladministration. The
necessity of starting more quality private unaided educational
60
institutions in the interest of general public was also
emphasised by the Court by ensuring autonomy and non-
regulation in the school administration, admission of
students and fee to be charged. Pai Foundation rejected the
view that if a private school is allowed to charge fee
commensurate with the fee affordable, the degrees would be
purchasable as unfounded since the standards of education
can be and are controllable through recognition, affiliation
and common final examination. Casting burden on other
students to pay for the education of others was also
disapproved by Pai Foundation holding that there should be
no cross-subsidy.
23. Pai Foundation has also dealt with the case of private
aided professional institutions, minority and non-minority,
and also other aided institutions and stated that once aid is
granted to a private professional educational institution, the
government or the state agency, as a condition of the grant of
aid, can put fetters on the freedom in the matter of
administration and management of the institution. Pai
Foundation also acknowledged that there are large number
of educational institutions, like schools and non-professional
colleges, which cannot operate without the support of aid
61
from the state and the Government in such cases, would be
entitled to make regulations relating to the terms and
conditions of employment of the teaching and non-teaching
staff. In other words, autonomy in private aided institutions
would be less than that of unaided institutions.
24. Pai Foundation also acknowledged the rights of the
religious and linguistic minorities to establish and administer
educational institutions of their choice under Article 30(1) of
the Constitution and held that right is not absolute as to
prevent the government from making any regulation
whatsoever. The Court further held that as in the case of a
majority run institution, the moment a minority institution
obtains a grant or aid, Article 28 of the Constitution comes
into play.
25. Pai Foundation further held that the ratio laid down in
St. Stephen is not correct and held that even if it is possible
to fill up all the seats with students of the minority group, the
moment the institution is granted aid, the institution will
have to admit students of the non-minority group to a
reasonable extent, whereby the character of the institution is
not annihilated, and at the same time, the rights of the citizen
engrafted under Article 29(2) are not subverted. The judgment
62
in Pai Foundation was pronounced on 31.10.2002,
25.11.2002 and Article 21A, new Article 45 and Article 51A(k)
were inserted in the Constitution on 12.12.2002, but the
basis for the introduction of Article 21A and the deletion of
original clause (3) from Article 21A, was due to the judgment
of Unnikrishnan. Parliament, it may be noted, was
presumed to be aware of the judgment in Pai Foundation,
and hence, no obligation was cast on unaided private
educational institutions but only on the State, while inserting
Article 21A.
26. The judgment in Pai Foundation, after the
introduction of the above mentioned articles, was interpreted
by various Courts, State Governments, educational
institutions in different perspectives leading to the enactment
of various statutes and regulations as well, contrary to each
other. A Bench of five Judges was, therefore, constituted to
clarify certain doubts generated out of the judgment in Pai
Foundation and its application. Rights of unaided minority
and non-minority institutions and restrictions sought to be
imposed by the State upon them were the main issues before
the Court and not with regard to the rights and obligations of
private aided institutions run by minorities and non-
63
minorities. The five Judges' Bench rendered its judgment on
14.8.2003 titled Islamic Academy of Education and
another v. State of Karnataka and others [(2003) 6 SCC
697]. Unfortunately, Islamic Academy created more
problems and confusion than solutions and, in order to steer
clear from that predicament, a seven Judges Bench was
constituted and the following specific questions were referred
for its determination:
"(1) To what extent the State can regulate the
admissions made by unaided (minority or non-
minority) educational institutions? Can the State
enforce its policy of reservation and/or appropriate
to itself any quota in admissions to such
institutions?
(emphasis supplied)
(2) Whether unaided (minority and non-
minority) educational institutions are free to devise
their own admission procedure or whether direction
made in Islamic Academy for compulsorily holding
entrance test by the State or association of
institutions and to choose therefrom the students
entitled to admission in such institutions, can be
sustained in light of the law laid down in Pai
Foundation?
(3) Whether Islamic Academy could have
issued guidelines in the matter of regulating the fee
payable by the students to the educational
institutions?
(4) Can the admission procedure and fee
structure be regulated or taken over by the
Committees ordered to be constituted by Islamic
Academy?"
64
27. Above mentioned questions were answered in P.A.
Inamdar and others v. State of Maharashtra and others
[(2005) 6 SCC 537] and the Court cleared all confusion and
doubts, particularly insofar as unaided minority and non-
minority educational institutions are concerned.
28. Inamdar specifically examined the inter-relationship
between Articles 19(1)(g), 29(2) and 30(1) of the Constitution
and held that the right to establish an educational institution
(which evidently includes schools as well) for charity or a
profit, being an occupation, is protected by Article 19(1)(g)
with additional protection to minority communities under
Article 30(1). Inamdar, however, reiterated the fact that,
once aided, the autonomy conferred by protection of Article
30(1) is diluted, as the provisions of Articles 29(2) will be
attracted and certain conditions in the nature of regulations
can legitimately accompany the State aid. Reasonable
restrictions pointed out by Inamdar may be indicated on the
following subjects: (i) the professional or technical
qualifications necessary for practicing any profession or
carrying on any occupation, trade or business; (ii) the
carrying on by the State, or by a corporation owned or
controlled by the State of any trade, business, industry or
65
service whether to the exclusion, complete or partial of
citizens or otherwise.
29. Referring to the judgments in Kerala Education
Bill , In Re. 1959 SCR 995 and St. Stephen, the Court took
the view that once an educational institution is granted aid or
aspires for recognition, the State may grant aid or recognition
accompanied by certain restrictions or conditions which must
be followed as essential to the grant of such aid or
recognition. Inamdar, as I have already indicated, was
mainly concerned with the question whether the State can
appropriate the quota of unaided educational institutions
both minority and non-minority. Explaining Pai Foundation,
the Court in Inamdar held as follows:
"119. A minority educational institution may
choose not to take any aid from the State and may
also not seek any recognition or affiliation. It may be
imparting such instructions and may have students
learning such knowledge that do not stand in need
of any recognition. Such institutions would be those
where instructions are imparted for the sake of
instructions and learning is only for the sake of
learning and acquiring knowledge. Obviously, such
institutions would fall in the category of those who
would exercise their right under the protection and
privilege conferred by Article 30(1) "to their hearts'
content" unhampered by any restrictions excepting
those which are in national interest based on
considerations such as public safety, national
security and national integrity or are aimed at
66
preventing exploitation of students or the teaching
community. Such institutions cannot indulge in any
activity which is violative of any law of the land.
120. They are free to admit all students of their
own minority community if they so choose to do.
(Para 145, Pai Foundation)
(ii) Minority unaided educational
institutions asking for affiliation or
recognition
121. Affiliation or recognition by the State or
the Board or the university competent to do so,
cannot be denied solely on the ground that the
institution is a minority educational institution.
However, the urge or need for affiliation or
recognition brings in the concept of regulation by
way of laying down conditions consistent with the
requirement of ensuring merit, excellence of
education and preventing maladministration. For
example, provisions can be made indicating the
quality of the teachers by prescribing the minimum
qualifications that they must possess and the
courses of studies and curricula. The existence of
infrastructure sufficient for its growth can be
stipulated as a prerequisite to the grant of
recognition or affiliation. However, there cannot be
interference in the day-to-day administration. The
essential ingredients of the management, including
admission of students, recruiting of staff and the
quantum of fee to be charged, cannot be regulated.
(Para 55, Pai Foundation)
122. Apart from the generalised position of law
that the right to administer does not include the
right to maladminister, an additional source of
power to regulate by enacting conditions
accompanying affiliation or recognition exists. A
balance has to be struck between the two
objectives: (i) that of ensuring the standard of
67
excellence of the institution, and (ii) that of
preserving the right of the minority to establish and
administer its educational institution. Subject to a
reconciliation of the two objectives, any regulation
accompanying affiliation or recognition must satisfy
the triple tests: (i) the test of reasonableness and
rationality, (ii) the test that the regulation would be
conducive to making the institution an effective
vehicle of education for the minority community or
other persons who resort to it, and (iii) that there is
no inroad into the protection conferred by Article
30(1) of the Constitution, that is, by framing the
regulation the essential character of the institution
being a minority educational institution, is not
taken away. (Para 122, Pai Foundation)
(iii) Minority educational institutions
receiving State aid
123. Conditions which can normally be
permitted to be imposed on the educational
institutions receiving the grant must be related to
the proper utilisation of the grant and fulfilment of
the objectives of the grant without diluting the
minority status of the educational institution, as
held in Pai Foundation (see para 143 thereof). As
aided institutions are not before us and we are not
called upon to deal with their cases, we leave the
discussion at that only.
124. So far as appropriation of quota by the
State and enforcement of its reservation policy is
concerned, we do not see much of a difference
between non-minority and minority unaided
educational institutions. We find great force in the
submission made on behalf of the petitioners that
the States have no power to insist on seat-sharing
in unaided private professional educational
institutions by fixing a quota of seats between the
management and the State. The State cannot insist
on private educational institutions which receive no
aid from the State to implement the State's policy
68
on reservation for granting admission on lesser
percentage of marks i.e. on any criterion except
merit.
125. As per our understanding, neither in the
judgment of Pai Foundation nor in the Constitution
Bench decision in Kerala Education Bill which was
approved by Pai Foundation is there anything which
would allow the State to regulate or control
admissions in the unaided professional educational
institutions so as to compel them to give up a share
of the available seats to the candidates chosen by
the State, as if it was filling the seats available to be
filled up at its discretion in such private
institutions. This would amount to nationalisation
of seats which has been specifically disapproved in
Pai Foundation. Such imposition of quota of State
seats or enforcing reservation policy of the State on
available seats in unaided professional institutions
are acts constituting serious encroachment on the
right and autonomy of private professional
educational institutions. Such appropriation of
seats can also not be held to be a regulatory
measure in the interest of the minority within the
meaning of Article 30(1) or a reasonable restriction
within the meaning of Article 19(6) of the
Constitution. Merely because the resources of the
State in providing professional education are
limited, private educational institutions, which
intend to provide better professional education,
cannot be forced by the State to make admissions
available on the basis of reservation policy to less
meritorious candidates. Unaided institutions, as
they are not deriving any aid from State funds, can
have their own admissions if fair, transparent, non-
exploitative and based on merit." (emphasis
supplied)
Pai Foundation, it was pointed out by Inamdar, merely
permitted the unaided private institutions to maintain merit
as the criterion of admission by voluntarily agreeing for seat
69
sharing with the State or adopting selection based on
common entrance test of the State. Further, it was also
pointed that unaided educational institutions can frame their
own policy to give free-ships and scholarships to the needy
and poor students or adopt a policy in line with the
reservation policy of the state to cater to the educational
needs of weaker and poorer sections of the society not out of
compulsion, but on their own volition. Inamdar reiterated
that no where in Pai Foundation, either in the majority or in
the minority opinion, have they found any justification for
imposing seat sharing quota by the State on unaided private
professional educational institutions and reservation policy of
the State or State quota seats or management seats.
Further, it was pointed that the fixation of percentage of
quota is to be read and understood as possible consensual
arrangements which can be reached between unaided private
professional institutions and the State. State regulations, it
was pointed out, should be minimal and only with a view to
maintain fairness and transparency in admission procedure
and to check exploitation of the students by charging
exorbitant money or capitation fees. Inamdar, disapproved
the scheme evolved in Islamic Academy to the extent it
70
allowed States to fix quota for seat sharing between
management and the States on the basis of local needs of
each State, in the unaided private educational institutions of
both minority and non-minority categories. Inamdar held
that to admit students being one of the components of right
to establish and administer an institution, the State cannot
interfere therewith and upto the level of undergraduate
education, the minority unaided educational institutions
enjoy "total freedom". Inamdar emphasised the fact that
minority unaided institutions can legitimately claim
"unfettered fundamental right" to choose the students to be
allowed admissions and the procedure therefore subject to its
being fair, transparent and non-exploitative and the same
principle applies to non-minority unaided institutions as well.
Inamdar also found foul with the judgment in Islamic with
regard to the fixation of quota and for seat sharing between
the management and the State on the basis of local needs of
each State in unaided private educational institutions, both
minority and non-minority. Inamdar noticed that Pai
Foundation also found foul with the judgment in Unni
Krishnan and held that admission of students in unaided
minority educational institutions/schools where scope for
71
merit based is practically nil cannot be regulated by the State
or University except for providing the qualification and
minimum condition of eligibility in the interest of academic
standards.
30. Pai Foundation as well as Inamdar took the view
that laws of the land including rules and regulations must
apply equally to majority as well as minority institutions and
minority institutions must be allowed to do what majority
institutions are allowed to do. Pai Foundation examined
the expression "general laws of the land" in juxtaposition
with "national interest" and stated in Para 136 of the
judgment that general laws of land applicable to all persons
have been held to be applicable to the minority institutions
also, for example, laws relating to taxation, sanitation, social
welfare, economic regulations, public order and morality.
31. While examining the scope of Article 30, this fact was
specifically referred to in Inamdar (at page 594) and took the
view that, in the context of Article 30(1), no right can be
absolute and no community can claim its interest above
national interest. The expression "national interest" was
used in the context of respecting "laws of the land", namely,
while imposing restrictions with regard to laws relating to
72
taxation, sanitation, social welfare, economic legislation,
public order and morality and not to make an inroad into the
fundamental rights guaranteed under Article 19(1)(g) or
Article 30(1) of the Constitution.
32. Comparing the judgments in Inamdar and Pai
Foundation, what emerges is that so far as unaided
educational institutions are concerned, whether they are
established and administered by minority or non-minority
communities, they have no legal obligation in the matter of
seat sharing and upto the level of under-graduate education
they enjoy total freedom. State also cannot compel them to
give up a share of the available seats to the candidates
chosen by the State. Such an appropriation of seats, it was
held, cannot be held to be a regulatory measure in the
interest of minority within the meaning of Article 30(1) or a
reasonable restriction within the meaning of Article 19(6) of
the Constitution since they have unfettered fundamental
right and total freedom to run those institutions subject to
the law relating to taxation, sanitation, social welfare,
economic legislation, public order and morality.
33. Pai Foundation was examining the correctness of the
ratio in Unni Krishnan, which I have already pointed out,
73
was the basis for the insertion of Article 21A and the deletion
of clause (3) of the proposed Article 21A. Inamdar also
noticed that Pai Foundation had struck down ratio of Unni
Krishnan which invaded the rights of unaided educational
institutions by framing a scheme. Article 21A envisaged a
suitable legislation so as to achieve the object of free and
compulsory education to children of the age 6 to 14 years
and imposed obligation on the State, and not on unaided
educational institutions.
34. Parliament, in its wisdom, brought in a new legislation
Right to Education Act to provide free and compulsory
education to children of the age 6 to 14 years, to discharge
the constitutional obligation of the State, as envisaged under
Article 21A. Provisions have also been made in the Act to
cast the burden on the non-state actors as well, to achieve
the goal of Universal Elementary Education. The statement of
objects and reasons of the Bill reads as follows:
"4. The proposed legislation is anchored in the
belief that the values of equality, social justice and
democracy and the creation of a just and humane
society can be achieved only through provision of
inclusive elementary education to all. Provision of
free and compulsory education of satisfactory
quality to children from disadvantaged and weaker
sections is, therefore, not merely the responsibility
of schools run or supported by the appropriate
74
Governments, but also of schools which are not
dependent on Government funds."
35. The Bill was introduced in the Rajya Sabha which
passed the Bill on 20.7.2009 and in Lok Sabha on 4.8.2009
and received the assent of the President on 26.8.2009 and
was published in the Gazette of India on 27.8.2009.
36. Learned Attorney General of India submitted that the
values of equality, social justice and democracy and the
creation of just and humane society can be achieved only
through a provision of inclusive elementary education by
admitting children belonging to disadvantaged group and
weaker sections of the society which is not only the
responsibility of the state and institutions supported by the
state but also schools which are not dependent on
government funds. Learned Attorney General also submitted
that the state has got an obligation and a duty to enforce the
fundamental rights guaranteed to children of the age of 6 to
14 years for free and compulsory education and is to achieve
that objective, the Act was enacted. Learned Attorney
General submitted that Article 21A is a socio-economic right
which must get priority over rights under Article 19(1)(g) and
Article 30(1), because unlike other rights it does not operate
75
merely as a limitation on the powers of the state but it
requires affirmative state action to protect and fulfil the rights
guaranteed to children of the age of 6 to 14 years for free and
compulsory education. Reference was also made to the
judgments of this Court in Indian Medical Association v.
Union of India and others [(2011) 7 SCC 179] (in short
Medical Association case), Ahmedabad St. Xavier's College
Society and Another v. State of Gujarat and Another
[(1974) 1 SCC 717], Rev. Sidhajbhai Sabhai and Others v.
State of Bombay and Another [(1963) 3 SCR 837] and In
re. Kerala Education Bill (supra).
37. Learned Additional Solicitor General in her written as
well as oral submissions stated that Article 21A must be
considered as a stand alone provision and not subjected to
Article 19(1)(g) and Article 30(1) of the Constitution. Article
19(1)(g) and Article 30(1), it was submitted, dealt with the
subject of right to carry on occupation of establishing and
administering educational institutions, while Article 21A
deals exclusively with a child's right to primary education.
Article 21A, it was pointed out, has no saving clause which
indicates that it is meant to be a complete, standalone clause
on the subject matter of the right to education and is
76
intended to exclude the application of Article 19(1)(g) and
Article 30(1). Learned Additional Solicitor General submitted
that omission of clause (3) in the original proposed Article
21A would indicate that the intention of the Parliament was
to apply the mandate of Article 21A to all the educational
institutions, public or private, aided or unaided, minority or
non-minority.
38. Mrs. Menaka Guruswamy and Mrs. Jayna Kothari,
appearing for the intervener namely The Azim Premji
Foundation, in I.A. No. 7 in W.P. (C) No. 95/2010, apart from
other contentions, submitted that Article 21A calls for
horizontal application of sanction on state actors so as to give
effect to the fundamental rights guaranteed to the people.
Learned counsels submitted that Sections 15(2), 17, 18, 23
and 24 of the Constitution expressly impose constitutional
obligations on non-state actors and incorporate the notion of
horizontal application of rights. Reference was also made to
the judgment of this Court in People's Union for
Democratic Rights and Others v. Union of India and
Others [(1982) 3 SCC 235] and submitted that many of the
fundamental rights enacted in Part III, such as Articles 17, 23
and 24, among others, would operate not only against the
77
State but also against other private persons. Reference was
also made to the judgment of this Court Vishaka and
Others v. State of Rajasthan [(1997) 6 SCC 241], in which
this Court held that all employees, both public and private,
would take positive steps not to infringe the fundamental
rights guaranteed to female employees under Articles 14, 15,
21 and 19(1)(g) of the Constitution. Reference was also made
to Article 15(3) and submitted that the Constitution permits
the State to make special provisions regarding children.
Further, it was also contended that Articles 21A and 15(3)
provide the State with Constitutional instruments to realize
the object of the fundamental right to free and compulsory
education even through non-state actors such as private
schools.
39. Shri Rajeev Dhavan, learned senior counsel appearing
on behalf of some of the petitioners, submitted that Article
21A casts an obligation on the state and state alone to
provide free and compulsory education to children upto the
age of 6 to 14 years, which would be evident from the plain
reading of Article 21A read with Article 45. Learned senior
counsel submitted that the words "state shall provide" are
express enough to reveal the intention of the Parliament.
78
Further, it was stated that the constitutional provision never
intended to cast responsibility on the private educational
institutions along with the State, if that be so like Article
15(5), it would have been specifically provided so in Article
21A. Article 21A or Article 45 does not even remotely indicate
any idea of compelling the unaided educational institutions to
admit children from the neighbourhood against their wish
and in violation of the rights guaranteed under the
Constitution. Learned senior counsel submitted that since no
constitutional obligation is cast on the private educational
institutions under Article 21A, the State cannot through a
legislation transfer its constitutional obligation on the private
educational institutions. Article 21A, it was contended, is not
subject to any limitation or qualification so as to offload the
responsibility of the State on the private educational
institutions so as to abridge the fundamental rights
guaranteed to them under Article 19(1)(g), Article 26(a),
Article 29(1) and Article 30(1) of the Constitution.
40. Learned senior counsel submitted that Article 21A is
not meant to deprive the above mentioned core rights
guaranteed to the petitioners and if the impugned provisions
of the Act do so, to that extent, they may be declared
79
unconstitutional. Learned senior counsel submitted that the
"core individual rights" always have universal dimension and
thus represent universal value while "socio-economic rights"
envisaged the sectional interest and the core individual right,
because of its universal nature, promote political equality and
human dignity and hence must promote precedence over the
socio-economic rights. Learned senior counsel also
submitted that constitutional concept and the constitutional
interpretation given by Pai Foundation and Inamdar cannot
be undone by legislation. Learned counsel also submitted
that the concept of social inclusiveness has to be achieved
not by abridging or depriving the fundamental rights
guaranteed to the citizens who have established and are
administering their institutions without any aid or grant but
investing their own capital. The principles stated in Part IV of
the Constitution and the obligation cast on the State under
Article 21A, it was contended, are to be progressively achieved
and realised by the State and not by non-state actors and
they are only expected to voluntarily support the efforts of the
state.
41. Shri T.R. Andhyarujina, learned senior counsel
appearing for some of the minority institutions submitted
80
that the object of Articles 25 to 30 of the Constitution is to
preserve the rights of religious and linguistic minorities and
to place them on a secure pedestal and withdraw them from
the vicissitudes of political controversy. Learned senior
counsel submitted that the very purpose of incorporating
those rights in Part-III is to afford them guarantee and
protection and not to interfere with those rights except in
larger public interest like health, morality, public safety,
public order etc. Learned senior counsel extensively referred
to various provisions of the Act, and submitted that they
would make serious inroad into the rights guaranteed to the
minority communities. Learned counsel further submitted
that Section 12(1)(b) and 12(1)(c) in fact, completely take
away the rights guaranteed to minority communities, though
what was permitted by this Court was only "sprinkling of
outsiders" that is members of all the communities. Counsel
submitted that the mere fact that some of the institutions
established and administered by the minority communities
have been given grant or aid, the State cannot take away the
rights guaranteed to them under Article 30(1) of the
Constitution of India. Learned counsel submitted that
Article 21A read with Article 30(1) also confers a right on a
81
child belonging to minority community for free and
compulsory education in an educational institution
established and administered by the minority community for
their own children and such a constitutionally guaranteed
right cannot be taken away or abridged by law.
PART II
Article 21A and RTE Act
42. Right to education, so far as children of the age 6 to 14
years are concerned, has been elevated to the status of
fundamental right under Article 21A and a corresponding
obligation has been cast on the State, but through Sections
12(1)(b) and 12(1)(c) of the Act the constitutional obligation of
the State is sought to be passed on to private educational
institutions on the principle of social inclusiveness. Right to
Education has now been declared as a fundamental right of
children of the age 6 to 14 years and other comparable rights
or even superior rights like the Right to food, healthcare,
nutrition, drinking water, employment, housing, medical care
may also get the status of fundamental rights, which may be
on the anvil. Right guaranteed to children under Article 21A
is a socio-economic right and the Act was enacted to fulfil
that right. Let us now examine how these rights have been
82
recognized and given effect to under our Constitution and in
other countries.
43. Rights traditionally have been divided into civil rights,
political rights and socio-economic rights; the former rights
are often called the first generation rights and the latter, the
second generation rights. First generation rights have also
been described as negative rights because they impose a duty
and restraint on the state and generally no positive duties
flow from them with some exceptions. Over lapping of both
the rights are not uncommon. It is puerile to think that the
former rights can be realised in isolation of the latter or that
one overrides the others.
44. Socio-economic rights generally serve as a vehicle for
facilitating the values of equality, social justice and
democracy and the state is a key player in securing that goal.
The preamble of the Indian Constitution, fundamental rights
in Part III and the Directive Principles of State Policy in Part
IV are often called and described as "conscience of the
Constitution" and they reflect our civil, political and socio-
economic rights which we have to protect for a just and
humane society.
45. Supreme Court through various judicial
83
pronouncements has made considerable headway in the
realization of socio-economic rights and made them
justiciable despite the fact that many of those rights still
remain as Directive Principles of State Policy. Civil, political
and socio-economic rights find their expression in several
international conventions like U.N. Convention on Economic,
Social and Cultural Rights 1966 (ICESCR), International
Covenant on Civil and Political Rights 1966 (ICCPR),
Universal Declaration of Human Rights 1948 (UDHR), United
Nations Convention on Rights of Child 1989 (UNCRC)etc.
Reference to some of the socio-economic rights incorporated
in the Directive Principles of the State Policy in this
connection is useful. Article 47 provides for duty of the State
to improve public health. Principles enshrined in Articles 47
and 48 are not pious declarations but for guidance and
governance of the State policy in view of Article 37 and it is
the duty of the State to apply them in various fact situations.
46. Supreme Court has always recognized Right to health as
an integral part of right to life under Article 21 of the
Constitution. In Consumer Education & Research Centre
and Others v. Union of India and others [(1995) 3 SCC
84
42], this Court held that the right to life meant a right to a
meaningful life, which is not possible without having right to
healthcare. This Court while dealing with the right to
healthcare of persons working in the asbestos industry read
the provisions of Articles 39, 41 and 43 into Article 21. In
Paschim Banga Khet Majdoor Samity and Others v.
State of West Bengal and Another [(1996) 4 SCC 37], this
Court not only declared Right to health as a Fundamental
Right but enforced that right by asking the State to pay
compensation for the loss suffered and also to formulate a
blue-print for primary health care with particular reference to
the treatment of patients during emergency. A note of
caution was however struck in State of Punjab and Others
v. Ram Lubhaya Bagga and Others [(1998) 4 SCC 117]
stating that no State or country can have unlimited resources
to spend on any of its projects and the same holds good for
providing medical facilities to citizens. In Social Jurist, A
Lawyers Group v. Government Of NCT Of Delhi and
Others [(140) 2007 DLT 698], a Division Bench of Delhi High
Court, of which one of us, Justice Swatanter Kumar was a
party, held that the wider interpretations given to Article 21
read with Article 47 of the Constitution of India are not only
85
meant for the State but they are equally true for all, who are
placed at an advantageous situation because of the help or
allotment of vital assets. Dharamshila Hospital &
Research Centre v. Social Jurist & Ors.; SLP (C)
No.18599 of 2007 decided on 25.07.2011 filed against the
judgment was dismissed by this Court directing that
petitioners' hospitals to provide medical care to a specified
percentage of poor patients since some of the private
hospitals are situated on lands belonging to the State or
getting other concessions from the State.
47. Right to shelter or housing is also recognized as a
socio-economic right which finds its expression in Article 11
of the ICESCR but finds no place in Part-III or Part-IV of our
Constitution. However, this right has been recognized by this
Court in several judgments by giving a wider meaning to
Article 21 of the Constitution. In Olga Tellis and Others v.
Bombay Municipal Corporation and Others [(1985) 3 SCC
545], this Court was considering the claims of evictees from
their slums and pavement dwellings on the plea of
deprivation of right to livelihood and right to life. Their claim
was not fully accepted by this Court holding that no one has
86
the right to use a public property for private purpose without
requisite authorization and held that it is erroneous to
contend that pavement dwellers have the right to encroach
upon the pavements by constructing dwellings thereon. In
Municipal Corporation of Delhi v. Gurnam Kaur [(1989) 1
SCC 101], this Court held that Municipal Corporation of
Delhi has no legal obligation to provide pavement squatters
alternative shops for rehabilitation as the squatters had no
legally enforceable right. In Sodan Singh and Others v.
New Delhi Municipal Committee and Others [(1989) 4 SCC
155], this Court negated the claim of citizens to occupy a
particular place on the pavement to conduct a trade, holding
the same cannot be construed as a fundamental right. Socio-
economic compulsions in several cases did not persuade this
Court to provide reliefs in the absence of any constitutional or
statutory right. A different note was however struck in
Ahmedabad Municipal Corporation v. Nawab Khan Gulab
Khan and Others [(1997) 11 SCC 121] in the context of
eviction of encroachers from the city of Ahmedabad. This
Court held though Articles 38, 39 and 46 mandate the State,
as its economic policy, to provide socio-economic justice, no
person has a right to encroach and erect structures otherwise
87
on foot-paths, pavements or public streets. The Court has
however opined that the State has the constitutional duty to
provide adequate facilities and opportunities by distributing
its wealth and resources for settlement of life and erection of
shelter over their heads to make the right to life meaningful.
48. Right to work does not oblige the State to provide work
for livelihood which has also been not recognized as a
fundamental right. Mahatma Gandhi National Rural
Employment Guarantee Act, 2005 (Act 42 of 2005)
guarantees at least 100 days of work in every financial year to
every household whose adult members volunteer manual
work on payment of minimum wages. Article 41 of the
Constitution provides that State shall, within the limits of its
economic capacity and development, make effective provision
for securing the right to work, to education and to public
assistance in cases of unemployment, old age, sickness and
disablement, which right is also reflected in Article 6 of
ICESCR. Article 38 of Part-IV states that the State shall
strive to promote the welfare of the people and Article 43
states that it shall endeavour to secure a living wage and a
decent standard of life to all workers. In Bandhua Mukti
88
Morcha v. Union of India and Others [(1984) 3 SCC 161], a
Public Interest Litigation, an NGO highlighted the deplorable
condition of bonded labourers in a quarry in Haryana. It was
pointed out that a host of protective and welfare oriented
labour legislations, including Bonded Labour (Abolition) Act,
1976 and the Minimum Wages Act, 1948were not followed.
This Court gave various directions to the State Government to
enable it to discharge its constitutional obligation towards
bonded labourers. This Court held that right to live with
human dignity enshrined in Article 21 derives its life breath
from the Directive Principles of State Policy, particularly
clauses (e) and (f) of Article 39 and Articles 41 and 42 and
held that it must include protection of the health and
strength of workers, men and women and of the tender age of
children against abuse, opportunities and facilities for
children to develop in a healthy manner and in conditions of
freedom and dignity, educational facilities, just and humane
conditions of work and maternity relief.
49. The Constitutional Court of South Africa rendered
several path-breaking judgments in relation to socio-
economic rights. Soobramoney v. Minister of Health
89
(KwaZulu-Natal) [1998 (1) SA 765 (CC)] was a case
concerned with the right of emergency health services. Court
held that the State owes no duty to provide the claimant, a
diabetic sufferer, with kidney dialysis on a plea of socio-
economic right. Petitioner was denied dialysis by a local
hospital on the basis of a prioritization policy based on
limited resources. The Court emphasised that the
responsibility of fixing the health care budget and deciding
priorities lay with political organization and medical
authorities, and that the court would be slow to interfere with
such decisions if they were rational and "taken in good faith".
50. In Government of the Republic of South Africa and
Others v. Grootboom and others [2001 (1) SA 46 (CC)] was a
case where the applicants living under appalling conditions in
an informal settlement, had moved into private land from
which they were forcibly evicted. Camping on a nearby sports
field, they applied for an order requiring the government to
provide them with basic shelter. The Constitutional Court
did not recognize a directly enforceable claim to housing on
the part of the litigants, but ruled that the State is obliged to
implement a reasonable policy for those who are destitute.
90
The Court, however, limited its role to that of policing the
policy making process rather than recognizing an enforceable
individual right to shelter, or defining a minimum core of the
right to be given absolute priority.
51. Another notable case of socio-economic right dealt with
by the South African Court is Minister of Health and
others v. Treatment Action Campaign and others (TAC)
[2002 (5) SA 721 (CC)]. The issue in that case was whether
the state is obliged under the right of access to health care
(Sections 27(1) and (2) of 1996 Constitution) to provide the
anti-retroviral drug Nevirapine to HIV-positive pregnant
women and their new born infants. Referring the policy
framed by the State, the Court held that the State is obliged
to provide treatment to the patients included in the pilot
policy. The decision was the closest to acknowledging the
individual's enforceable right.
52. In Ex parte Chairperson of the Constitutional
Assembly: in re Certification of the Constitution of the
Republic of South Africa [1996 (4) SA 744 (CC)], the Court
made it clear that socio-economic rights may be negatively
protected from improper invasion, breach of the obligation,
91
occurs directly when there is a failure to respect the right or
indirectly when there is a failure to prevent the direct
entrenchment of the right of another, or a failure to respect
the existing protection of the right, by taking measures that
diminish the protection of private parties obligation, is not to
interfere with or diminish the enjoyment of the right
constitutionally protected. Equally important, in enjoyment
of that right, the beneficiary shall also not obstruct, destroy,
or make an inroad on the right guaranteed to others like non-
state actors.
53. Few of the other notable South African Constitutional
Court judgments are: Minister of Public Works and others
v. Kyalami Ridge Environmental Association and others
[2001 (7) BCLR 652 (CC)] and President of the Republic of
South Africa v. Modderklip Boerdery (Pty). Ltd. [2005 (5)
SA 3 (CC)].
54. South African Constitution, unlike many other
constitutions of the world, has included socio-economic
rights, health services, food, water, social security and
education in the Constitution to enable it to serve as an
instrument of principled social transformation enabling
92
affirmative action and horizontal application of rights. To
most of the social rights, the State's responsibility is limited
to take reasonable legislative and other measures within its
available resources to achieve the progressive realisation of
those rights [Sections 26(2), and 27(2)]. Few exceptions,
however, give rise to directly enforceable claims, namely, right
not to be evicted [Section 26(3)]; not to be refused emergency
medical treatment [Section 27(3)]; the rights of prisoners to
adequate nutrition and medical treatment [Section 35(2)] and
rights of Children (defined as those under 18 years) to basic
nutrition, shelter, basic health care and social services.
55. Social economic rights have also been recognized by
the constitutional courts of various other countries as well.
In Brown v. Board of Education [347 U.S. 483], the U.S.
Constitutional Court condemned the policy of segregation of
blacks in the American educational system. The Court held
that the private schools for black and white children are
inherently unequal and deprived children of equal rights.
56. In a Venenzuelan case Cruz del Valle Balle
Bermudez v. Ministry of Health and Social Action - Case
No.15.789 Decision No.916 (1999); the Court considered
93
whether those with HIV/AIDS had the right to receive the
necessary medicines without charge and identifying a positive
duty of prevention at the core of the right to health, it ordered
the Ministry to conduct an effective study into the minimum
needs of those with HIV/AIDS to be presented for
consideration in the Government's next budget. Reference
may also be made a judgment of the Canadian Constitution
Court in Wilson v. Medical Services Commission of
British Columbia [(53) D.L.R. (4th) 171].
57. I have referred to the rulings of India and other
countries to impress upon the fact that even in the
jurisdictions where socio-economic rights have been given the
status of constitutional rights, those rights are available only
against State and not against private state actors, like the
private schools, private hospitals etc., unless they get aid,
grant or other concession from the State. Equally important
principle is that in enjoyment of those socio-economic rights,
the beneficiaries should not make an inroad into the rights
guaranteed to other citizens.
REMOVAL OF OBSTACLES TO ACHIEVE SOCIO-
ECONOMIC RIGHTS
94
58. Socio-economic rights, I have already indicated, be
realized only against the State and the Statute enacted to
protect socio-economic rights is always subject to the rights
guaranteed to other non-state actors under Articles 19(1)(g),
30(1), 15(1), 16(1) etc. Parliament has faced many obstacles
in fully realizing the socio-economic rights enshrined in Part
IV of the Constitution and the fundamental rights guaranteed
to other citizens were often found to be the obstacles.
Parliament has on several occasions imposed limitations on
the enjoyment of the rights guaranteed under Part III of the
Constitution, through constitutional amendments.
59. Parliament, in order to give effect to Article 39 and to
remove the obstacle for realization of socio-economic rights,
inserted Article 31A vide Constitution (First Amendment) Act,
1951 and later amended by the Constitution (Fourth
Amendment) Act, 1955 and both the amendments were given
retrospective effect from the commencement of the
Constitution. The purpose of the first amendment was to
eliminate all litigations challenging the validity of legislation
for the abolition of proprietary and intermediary interests in
land on the ground of contravention of the provisions of
95
Articles 14, 19 and 31. Several Tenancy and Land Reforms
Acts enacted by the State also stood protected under Article
31A from the challenge of violation of Articles 14 and 19.
60. Article 31B also saves legislations coming under it
from inconsistency with any of the fundamental rights
included in Part III for example Article 14, Article 19(1)(g) etc.
Article 31B read with Ninth Schedule protects all laws even if
they are violative of fundamental rights. However, in I.R.
Coelho (Dead) by LRs v. State of Tamil Nadu and Others
[(2007) 2 SCC 1], it was held that laws included in the Ninth
Schedule can be challenged, if it violates the basic structure
of the Constitution which refer to Articles 14, 19, 21 etc.
61. Article 31C was inserted by the Constitution (Twenty-
fifth Amendment) Act, 1971 which gave primacy to Article
39(b) and (c) over fundamental rights contained under Article
14 and 19. Article 31C itself was amended by the
Constitution (Forty-second Amendment) Act, 1976 and
brought in all the provisions in Part-IV, within Article 31C for
protecting laws from challenge under article 14 and 19 of the
Constitution.
96
62. I have referred to Articles 31A to 31C only to point out
how the laws giving effect to the policy of the State towards
securing all or any of the principles laid down in Part-IV stood
saved from the challenge on the ground of violation or
infraction of the fundamental rights contained in Articles 14
and 19. The object and purpose of those constitutional
provisions is to remove the obstacles which stood in the way
of enforcing socio-economic rights incorporated in Part-IV of
the Constitution and also to secure certain rights, guaranteed
under Part III of the Constitution.
63. Rights guaranteed under Article 19(1)(g) can also be
restricted or curtailed in the interest of general public
imposing reasonable restrictions on the exercise of rights
conferred under Article 19(1)(g). Laws can be enacted so as to
impose regulations in the interest of public health, to prevent
black marketing of essential commodities, fixing minimum
wages and various social security legislations etc., which all
intended to achieve socio-economic justice. Interest of
general public, it may be noted, is a comprehensive
expression comprising several issues which affect public
welfare, public convenience, public order, health, morality,
97
safety etc. all intended to achieve socio-economic justice for
the people.
64. The law is however well settled that the State cannot
travel beyond the contours of Clauses (2) to (6) of Article 19 of
the Constitution in curbing the fundamental rights
guaranteed by Clause (1), since the Article guarantees an
absolute and unconditional right, subject only to reasonable
restrictions. The grounds specified in clauses (2) to (6) are
exhaustive and are to be strictly construed. The Court, it
may be noted, is not concerned with the necessity of the
impugned legislation or the wisdom of the policy underlying
it, but only whether the restriction is in excess of the
requirement, and whether the law has over-stepped the
Constitutional limitations. Right guaranteed under Article
19(1)(g), it may be noted, can be burdened by constitutional
limitations like sub-clauses (i) to (ii) to Clause (6).
65. Article 19(6)(i) enables the State to make law relating
to professional or technical qualifications necessary for
practicing any profession or to carry on any occupation, trade
or business. Such laws can prevent unlicensed, uncertified
medical practitioners from jeopardizing life and health of
98
people. Sub clause (ii) to Article 19(6) imposes no limits upon
the power of the State to create a monopoly in its favour.
State can also by law nationalize industries in the interest of
general public. Clause (6)(ii) of Article 19 serves as an
exception to clause (1)(g) of Article 19 which enable the State
to enact several legislations in nationalizing trades and
industries. Reference may be made to Chapter-4 of the Motor
Vehicles Act, 1938, The Banking Companies (Acquisition and
Transfer of Undertakings) Act, 1970, General Insurance
Business (Nationalization) Act, 1972 and so on. Sub-clause
6(ii) of Article 19 exempts the State, on the conditions of
reasonableness, by laying down that carrying out any trade,
business, industry or services by the State Government would
not be questionable on the ground that it is an infringement
on the right guaranteed under Article 19(1)(g).
66. I have referred to various provisions under sub-
clauses (i) and (ii) of Article 19(6) to impress upon the fact
that it is possible to amend the said Article so that socio-
economic rights could be realized by carving out necessary
constitutional limitations abrogating or abridging the right
guaranteed under Article 19(1)(g).
99
67. Constitutional amendments have also been made to
Articles 15 and 16 so as to achieve socio-economic justice.
Articles 15 and 16 give power to the State to make positive
discrimination in favour of the disadvantaged and
particularly, persons belonging to Scheduled Castes and
Scheduled Tribes. Socio-economic empowerment secures
them dignity of person and equality of status, the object is to
achieve socio-economic equality.
68. Faced with many obstacles to achieve the above
objectives and the Directive Principles of the State Policy,
Articles 15 and 16 of the Constitution had to be amended on
several occasions so as to get over the obstacles in achieving
the socio-economic justice. In State of Madras v. Shrimati
Champakam Dorairajan [(1951) 2 SCR 525], this Court laid
down the law that Article 29(2) was not controlled by Article
46 of the Directive Principles of the State Policy and that the
Constitution did not intend to protect the interest of the
backward classes in the matter of admission to educational
institutions. In order to set right the law and to achieve
social justice, Clause (4) was added to Article 15 by the
Constitutional (First Amendment) Act, 1951 enabling the
100
State to make special provision for the advancement of any
socially and educationally backward classes of citizens or for
the Scheduled Castes and Scheduled Tribes. The object of
Clause (4) was to bring Articles 15 and 29 in line with Articles
16(4), 46 and 340 of the Constitution, so as to make it
constitutional for the State to reserve seats for backward
classes citizens, Scheduled Castes and Scheduled Tribes in
the public educational institutions, as well as to make special
provisions, as may be necessary, for the advancement, e.g. to
provide housing accommodation for such classes. In other
words, Article 15(4) enables the State to do what would
otherwise have been unconstitutional. Article 15(4) has to be
read as a proviso or an exception to Article 29(2) and if any
provision is defined by the provisions of Article 15(4), its
validity cannot be questioned on the ground that it violates
Article 29(2). Under Article 15(4), the State is entitled to
reserve a minimum number of seats for members of the
backward classes, notwithstanding Article 29(2) and the
obstacle created under Article 29(2) has been removed by
inserting Article 15(4).
69. The Parliament noticed that the provisions of Article
101
15(4) and the policy of reservation could not be imposed by
the State nor any quota or percentage of admission be carved
out to be appropriated by the State in minority or non-
minority unaided educational institution, since the law was
clearly declared in Pai Foundation and Inamdar cases. It
was noticed that the number of seats available in aided or
State maintained institutions particularly in respect of
professional educational institutions were limited in
comparison to those in private unaided institutions. Article
46 states that the State shall promote, with special care, the
educational and economic interests of the weaker sections of
the people, and, in particular of the Scheduled Castes and
Scheduled Tribes, and shall protect them from social
injustice. Access to education was also found to be an
important factor and in order to ensure advancement of
persons belonging to Scheduled Castes, Scheduled Tribes,
socially and economically backward classes, it was proposed
to introduce Clause (5) to Article 15 to promote educational
advancement of socially and educationally backward classes
of citizens i.e. OBCs, Scheduled Castes and Scheduled Tribes
and the weaker sections of the society by securing admission
in unaided educational institutions and other minority
102
educational institutions referred to in Clause (1) of Article 30
of the Constitution.
70. The Parliament has, therefore, removed the obstacles
created by the law as ruled by the Court in Pai Foundation
and Inamdar so as to carry out the obligation under the
Directive Principles of the State Policy laid down under Article
46. Later, the Parliament enacted the Central Educational
Institutions (Reservation and Admission) Act, 2006 (for short
`the CEI Act'), but the Act never intended to give effect to the
mandate of the newly introduced Clause (5) to Article 15
dealing with admissions in both aided and unaided private
educational institutions.
71. Constitutional validity of Clause (5) to Article 15 and
the CEI Act came up for consideration before a Constitutional
Bench of this Court in Ashoka Kumar Thakur v. Union of
India and Others [(2008) 6 SCC 1]. CEI Act was enacted by
the Parliament under Article 15(5), for greater access to
higher education providing for 27 per cent reservation for
"Other Backward Classes" to the Central Government
controlled educational institutions, but not on privately
managed educational institutions. Constitutional validity of
103
Article 15(5) was challenged stating that it had violated the
basic structure doctrine. The majority of the Judges in
Ashok Kumar Thakur's case declined to pronounce on the
question whether the application of Article 15(5) to private
unaided institutions violated the basic structure of the
Constitution, in my view, rightly because that issue did not
arise for consideration in that case. Justice Dalveer
Bhandari, however, examined the validity of Article 15(5) with
respect to private unaided institutions and held that an
imposition of reservation of that sort would violate Article
19(1)(g) and thus the basic structure doctrine. Article 19(1)
(g), as such, it may be pointed out, is not a facet of the basic
structure of the Constitution, and can be constitutionally
limited in its operation, with due respect, Justice Bhandari
has overlooked this vital fact. Pai Foundation as well as
Inamdar held that Article 19(1)(g) prevents the State from
creating reservation quotas or policy in private unaided
professional educational institutions and, as indicated earlier,
it was to get over that obstacle that Clause (5) was inserted in
Article 15. In Ashok Kumar Thakur, the majority held that
Clause (5) to Article 15 though, moderately abridges or alters
the equality principle or the principles under Article 19(1)(g),
104
insofar as it dealt with State maintained and aided
institutions, it did not violate the basic structure of the
Constitution. I have referred to Articles 15(4) and 15(5) and
the judgment in Ashok Kumar Thakur to highlight the fact
that the State in order to achieve socio-economic rights, can
remove obstacles by limiting the fundamental rights through
constitutional amendments.
72. Applicability of Article 15(5), with regard to private
unaided non-minority professional institutions, came up for
consideration in Medical Association case. A two judges
Bench of this Court has examined the constitutional validity
of Delhi Act 80 of 2007 and the notification dated 14.8.2008
issued by the Government of NCT, Delhi permitting the Army
College of Medical Sciences to allocate 100% seats to the
wards of army personnel. The Court also examined the
question whether Article 15(5) has violated the basic
structure of the Constitution. The Court proceeded on the
basis that Army Medical College is a private non-minority,
unaided professional institution. Facts indicate that the
College was established on a land extending to approximately
25 acres, leased out by the Ministry of Defence, Government
105
of India for a period of 30 years extendable to 99 years.
Ministry of Defence also offered various facilities like
providing clinical training at Army Hospital, NCT, Delhi and
also access to the general hospitality. The constitutional
validity of Article 15(5) was upheld holding that Clause (5) of
Article 15 did not violate the basic structure of the
Constitution. While reaching that conclusion, Court also
examined the ratio in Pai Foundation as well as in
Inamdar. Some of the findings recorded in Medical
Association case, on the ratio of Pai Foundation and
Inamdar, in my view, cannot be sustained.
73. Medical Association case, it is seen, gives a new
dimension to the expression "much of difference" which
appears in paragraph 124, page 601 of Inamdar. Learned
Judges in Medical Association case concluded in Para 80 of
that judgment that the expression "much of a difference"
gives a clue that there is an "actual difference" between the
rights of the minority unaided institutions under clause (1) of
Article 30 and the rights of non-minority unaided institutions
under sub-clause (g) of Clause (1) of Article 19. Let us refer
to paragraph 124 of Inamdar to understand in which context
106
the expression "much of difference" was used in that
judgment, which is extracted below:
"So far as appropriation of quota by the State
and enforcement of its reservation policy is
concerned, we do not see much of a difference
between non-minority and minority unaided
educational institutions. We find great force in the
submission made on behalf of the petitioners that
the states have no power to insist on seat-sharing in
unaided private professional educational
institutions by fixing the quota of seats between the
Management and the State." (emphasis supplied)
Inamdar was expressing the view that so far as
"appropriation of quota by the State" and "enforcement of its
reservation policy" is concerned, they do not see much of
difference between non-minority and minority unaided
educational institutions. Medical Association case, on the
other hand, in my view, has gone at a tangent and gave a new
dimension and meaning to paragraph 124 of Inamdar, which
is evident from the following paragraph of that judgment:
"81. xxx xxx
xxx xxx
(i) that there is not much of a difference in
terms, between the two kinds of institutions
under consideration, based on an overall
quantitative assessment of all the rights put
together, with a few differences that would
107
still have operational significance; or
(ii) that in all respects the two classes of
educational institutions are more or less the
same, with the differences being minor and
not leading to any operational significance."
(emphasis supplied)
Medical Association case concluded that the expression
"much of a difference" could be understood only in the way
they have stated in paragraph 81(i) which, with due respect,
is virtually re-writing paragraph 124 of Inamdar, a seven
Judges' Judgment which is impermissible. Final conclusion
reached by the learned judges in paragraph 123 for inclusion
of Clause (5) to Article 15 reads as follows:
"123. Clause (5) of Article 15 is an enabling
provision and inserted by the Constitution (Ninety-
third Amendment) Act, 2005 by use of powers of
amendment in Article 368. The Constitution
(Ninety-third Amendment) Act, 2005 was in
response to this Court's explanation, in P.A.
Inamdar, of the ratio in T.M.A. Pai, that imposition
of reservations on non-minority unaided
educational institutions, covered by sub-clause (g)
of clause (1) of Article 19, to be unreasonable
restrictions and not covered by clause (6) of Article
19. The purpose of the amendment was to clarify
or amend the Constitution in a manner that what
was held to be unreasonable would now be
reasonable by virtue of the constitutional status
given to such measures."
74. Referring to Pai Foundation case, the Court also
108
stated, having allowed the private sector into the field of
education including higher education, it would be
unreasonable, pursuant to clause (6) of Article 19, for the
State to fix the fees and also impose reservations on private
unaided educational institutions. Nevertheless, the Court
opined that taking into consideration the width of the original
powers under Clause (6) of Article 19, one would necessarily
have to find the State would at least have the power to make
amendments to resurrect some of those powers that it had
possessed to control the access to higher education and
achieve the goals of egalitarianism and social justice.
75. Article 15(5), it may be noted, gives no protection to
weaker sections of the society, except members belonging to
Scheduled Castes/Scheduled Tribes and members of Other
Backward Community.
76. Constitutional amendments carried out to Article 16 in
securing social justice may also be examined in this context.
Clause (1) of Article 16 guarantees equality of opportunity for
all citizens in matters relating to employment or appointment
to any office under the State. Article 16(4) is a special
provision confined to the matters of employment in the
109
services under the State which states that nothing in Article
16(1) shall prevent the State from making any provision for
the reservation of appointments or posts in favour of any
backward class of citizens which is not adequately
represented in the services under the State. Article 46
obliges the State to take steps for promoting the economic
interests of the weaker sections and, in particular, of the
Scheduled Castes and Scheduled Tribes. The expression
`weaker sections' in Article 46 is wider than `backward class'.
The backward citizens in Article 16(4) do not comprise of all
the weaker sections of the people but only those which are
socially, educationally and economically backward, and which
are not adequately represented in the services under the
State. Further, the expression `weaker sections' can also take
within its compass individuals who constitute weaker
sections or weaker parts of the society.
77. In Indra Sawhney v. Union of India and Others
[(1992) Supp. 3 SCC 212], this Court held that, as the law
stood then, there could be no reservation in promotion. It
was held that reservation of appointments or posts under
Article 16(4) is confined to initial appointments only. To set
110
right the law and to advance social justice by giving
promotions to Scheduled Castes and Scheduled Tribes Clause
(4A) was added to Article 16 by the Constitution (Seventy-
seventh Amendment) Act, 1995. Consequently, the hurdle or
obstacle which stood in the way was removed by the
Constitutional amendment.
78. The scope of the above provision came up for
consideration in Jagdish Lal and Others v. State of
Haryana and Others [(1997) 6 SCC 538], where this Court
held that the principle of seniority according to length of
continuous service on a post or service will apply and that
alone will have to be looked into for the purpose of seniority
even though they got promotion ignoring the claim of seniors.
It was said that reserved candidates who got promotion
ignoring the claim of services in general category will be
seniors and the same cannot affect the promotion of general
candidates from the respective dates of promotion and
general candidates remain junior in higher echelons to the
reserved candidates. The above position was, however,
overruled in Ajit Singh and Others v. State of Punjab and
Others [(1999) 7 SCC 209], wherein it was decided that the
111
reserved category candidates cannot count seniority in the
promoted category from the date of continuous officiation vis-
à-vis the general candidates who were senior to them in the
lower category and who were later promoted. Ajit Singh
case was declaring the law as it stood. Consequently, the
Parliament, in order to give continuous appreciation in
promotion, inserted the words "with consequential seniority"
in Clause (4A) to Article 16 by Constitution (Eighty-fifth
Amendment) Act, 2001 (which was made effective from
17.6.1995). In the light of Article 16(4A), the claims of
Scheduled Castes and Scheduled Tribes for promotion shall
be taken into consideration in making appointment or giving
promotion.
79. Constitution (Eighty-first Amendment) Act, 2000,
which came into effect on 9.6.2000, inserted Clause (4B) to
Article 16, which envisaged that the unfilled reserved
vacancies in a year to be carried forward to subsequent years
and that these vacancies are to be treated as distinct and
separate from the current vacancies during any year, which
means that 50% rule is to be applied only to normal
vacancies and not to the posts of backlog of reserved
112
vacancies. Inadequacy and representation of backward
classes, Scheduled Castes and Scheduled Tribes are the
circumstances which enabled the State Government to enact
Articles 16(4), 16(4A) and 16(4B).
80. The constitutional validity of Article 16(4A) substituted
by the Constitution (Eighty-fifth Amendment) Act, 2001 came
up for consideration before this Court in M. Nagaraj & Ors.
v. Union of India [(2006) 8 SCC 212]. The validity of the
Constitution (Seventy-seventh Amendment) Act, 1995, the
Constitution (Eighty-first Amendment) Act, 2000, the
Constitution (Eighty-second Amendment) Act, 2000 and the
Constitution (Eighty-fifth Amendment) Act, 2001 were also
examined and held valid. This Court held that they do not
infringe either the width of the Constitution amending power
or alter the identity of the Constitution or its basic structure.
This Court held that the ceiling-limit of 50%, the concept of
creamy layer and the compelling reasons, namely,
backwardness, inadequacy of representation and overall
administrative efficiency are all constitutional requirements
without which the structure of equality of opportunity in
Article 16 would collapse.
113
81. I have referred extensively to the constitutional
amendments effected to Articles 31A to 31C, Articles 15, 16
and 19 to show that whenever the Parliament wanted to
remove obstacles so as to make affirmative action to achieve
socio-economic justice constitutionally valid, the same has
been done by carrying out necessary amendments in the
Constitution, not through legislations, lest they may make an
inroad into the fundamental rights guaranteed to the citizens.
Rights guaranteed to the unaided non-minority and minority
educational institutions under Article 19(1)(g) and Article
30(1) as explained in Pai Foundation and reiterated in
Inamdar have now been limited, restricted and curtailed so
as to impose positive obligation on them under Section 12(1)
(c) of the Act and under Article 21A of the Constitution, which
is permissible only through constitutional amendment.
82. Constitutional principles laid down by Pai Foundation
and Inamdar on Articles 19(1)(g), 29(2) and 30(1) so far as
unaided private educational institutions are concerned,
whether minority or non-minority, cannot be overlooked and
Article 21A, Sections 12(1)(a), (b) and 12(1)(c) have to be
tested in the light of those constitutional principles laid down
by Pai Foundation and Inamdar because Unnikrishnan
114
was the basis for the introduction of the proposed Article 21A
and the deletion of clause (3) from that Article. Interpretation
given by the courts on any provision of the Constitution gets
inbuilt in the provisions interpreted, that is, Articles 19(1)(g),
29(2) and 30.
83. We have to give due respect to the eleven Judges
judgment in Pai Foundation and the seven Judges judgment
in Inamdar, the principles laid down in those judgments still
hold good and are not whittled down by Article 21A, nor any
constitutional amendment was effected to Article 19(1)(g) or
Article 30(1). Article 21A, it may be noted was inserted in the
Constitution on 12.12.2002 and the judgment in Pai
Foundation was delivered by this Court on 31.10.2002 and
25.11.2002. Parliament is presumed to be aware of the law
declared by the Constitutional Court, especially on the rights
of the unaided non-minority and minority educational
institutions, and in its wisdom thought if fit not to cast any
burden on them under Article 21A, but only on the State.
Criticism of the judgments of the Constitutional Courts has to
be welcomed, if it is healthy. Critics, it is seen often miss a
point which is vital, that is, Constitutional Courts only
115
interpret constitutional provisions and declare what the law
is, and not what law ought to be, which is the function of the
legislature. Factually and legally, it is not correct to
comment that many of the amendments are necessitated to
overcome the judgments of the Constitutional Courts.
Amendments are necessitated not to get over the judgments
of the Constitutional Courts, but to make law constitutional.
In other words, a law which is otherwise unconstitutional is
rendered constitutional. An unconstitutional statute is not a
law at all, whatever form or however solemnly it is enacted.
When legislation is declared unconstitutional by a
Constitutional Court, the legislation in question is not vetoed
or annulled but declared never to have been the law. People,
acting solemnly in their sovereign capacity bestow the
supreme dominion on the Constitution and, declare that it
shall not be changed except through constitutionally
permissible mode. When courts declare legislative acts
inconsistent with constitutional provisions, the court is giving
effect to the will of the people not due to any judicial
supremacy, a principle which squarely applies to the case on
hand.
116
84. In S.P. Gupta v. President of India and Others
[1981 SCC Supp. (1) 87] [para 195], Justice Fazal Ali pointed
out as follows:
" The position so far as our country is concerned is
similar to that of America and if any error of
interpretation of a constitutional provision is
committed by the Supreme Court or any
interpretation which is considered to be wrong by
the Government can be rectified only by a
constitutional amendment which is a very
complicated, complex, delicate and difficult
procedure requiring not merely a simple majority
but two-third majority of the Members present and
voting. Apart from the aforesaid majority, in most
cases the amendment has to be ratified by a
majority of the States. In these circumstances,
therefore, this Court which lays down the law of the
land under Article 141 must be extremely careful
and circumspect in interpreting statutes, more so
constitutional provisions, so to obviate the necessity
of a constitutional amendment every time which, as
we have already mentioned, is an extremely onerous
task."
Reference may also be made to the judgment in Bengal
Immunity Company Limited v. State of Bihar and Others
[AIR 1955 SC 661].
85. In People's Union for Civil Liberties (PUCL) and
Anr. v. Union of India (UOI) and Anr. [2003 (4) SCC 399] in
para 112 this Court has held "It is a settled principle of
constitutional jurisprudence that the only way to render a
judicial decision ineffective is to enact a valid law by way of
117
amendment......."
86. In Smit v. Allwright [321 U.S. 649 (1944)], the Court
held "In constitutional questions, where correction depends
upon amendment, and not upon legislative action, this Court
throughout its history has freely exercised its power to re-
examine the basis of its constitutional decisions. This has long
been accepted practice and this practice has continued to this
day."
87. Constitutional interpretation given by this Court as to
what the law is, led to bringing in several amendments either
to set right the law or abridge the constitutional rights
guaranteed in Part III of the Constitution, some of which I
have already referred to in the earlier part of this judgment.
88. Principles laid down by Pai Foundation and in
Inamdar while interpreting Articles 19(1)(g), 29(2) and 30(1)
in respect of unaided non-minority and minority educational
institutions like schools upto the level of under-graduation
are all weighty and binding constitutional principles which
cannot be undone by statutory provisions like Section 12(1)
(c), since those principles get in-built in Article 19(1)(g),
118
Article 29(2) and Article 30(1) of the Constitution. Further
Parliament, while enacting Article 21A, never thought if fit to
undo those principles and thought it fit to cast the burden on
the State.
PART III
OBLIGATIONS/RESPONSIBILITIES OF NON-STATE
ACTORS IN REALIAZATION OF CHILDREN'S RIGHTS:
89. We may, however, also examine whether the private
unaided educational institutions have any
obligations/responsibilities in realization of children's rights.
Articles 21A, 45, 51A(k), Section 12 of the Act and various
International Conventions deal with the obligations and
responsibilities of state and non-state actors for realization of
children's rights. Social inclusiveness is stated to be the
motto of the Act which was enacted to accomplish the State's
obligation to provide free and compulsory education to
children of the age 6 to 14 years, in that process,
compulsorily co-opting, private educational institutions as
well. A shift in State's functions, to non-state actors in the
field of health care, education, social services etc. has been
keenly felt due to liberalization of economy and privatization
119
of state functions.
90. The Universal Declaration of Human Rights, 1948
(UDHR), the International Covenant on Civil and Political
Rights (ICCPR) and the International Covenant on Economic,
Social and Cultural Rights, 1966 (ICESCR), UN Convention
on the Rights of the Child (UNCRC), 1989 throw considerable
light on the duties and responsibilities of State as well as
non-state actors for the progressive realization of children
rights. Article 6(1) of ICCPR states: "Every human being has
the inherent right to life ... No one shall be arbitrarily
deprived of this right", meaning thereby that the arbitrary
deprivation of a person's life will be a violation of
international human rights norm whether it is by the State or
non-state actors. UDHR, ICCPR, ICESCR, UNCRC and other
related international covenants guarantee children civil,
political, economical, social and cultural rights. Article 4 of
the UNCRC requires the State to undertake all appropriate
legislative, administrative and other measures for the
implementation of the rights recognized in the Convention.
91. Article 2.1 of the ICESCR, has also approved the above
obligation of the State, which reads as follows:
120
"Each State Party to the present Covenant
undertakes to take steps, individually and through
international assistance and co-operation, especially
economic and technical, to the maximum of its
available resources, with a view to achieving
progressively the full realization of the rights
recognized in the present Covenant by all
appropriate means, including particularly the
adoption of legislative measures."
Non-state actor's obligation is also reflected in preamble of
ICCPR and ICESCR which is as follows:
"The individual, having duties to other
individuals and to the community to which he
belongs, is under a responsibility to strive for the
promotion and observance of the rights recognized
in the present Covenant."
Preamble of UDHR also reads as follows:
"... every individual and every organ of society,
keeping this Declaration constantly in mind, shall
strive by teaching and education, to promote respect
for these rights and freedoms and by progressive
measures, national and international, to secure
their universal and effective recognition and
observance..."
Non-state actor's "duty to the community" and to the
"individuals in particular" are accordingly highlighted.
Article 30 of UDHR highlights the necessity to protect
and safeguard the right of others which reads as follows :-
"Nothing in this Declaration may be interpreted
as implying for any state, group or person any right
121
to engage in any activity or to perform any act aimed
at the destruction of any of the rights and freedoms
set forth herein."
92. In this connection reference may be made to Article
28(1)(a) of UNCRC which reads as follows: "States Parties
recognize the right of the child to education, and with a view to
achieving this right progressively and on the basis of equal
opportunity, they shall, in particular: make primary education
compulsory and available free to all";
Article 29 is also relevant for our purpose which reads as
follow:-
1. States Parties agree that the education of the
child shall be directed to:
(a) The development of the child's personality,
talents and mental and physical abilities to their
fullest potential;
(b) The development of respect for human rights and
fundamental freedoms, and for the principles
enshrined in the Charter of the United Nations;
(c) The development of respect for the child's
parents, his or her own cultural identity, language
and values, for the national values of the country in
which the child is living, the country from which he
or she may originate, and for civilizations different
from his or her own;
(d) The preparation of the child for responsible life in
a free society, in the spirit of understanding, peace,
tolerance, equality of sexes, and friendship among
all peoples, ethnic, national and religious groups
and persons of indigenous origin;
122
(e) The development of respect for the natural
environment.
2. No part of the present article or article 28 shall
be construed so as to interfere with the liberty of
individuals and bodies to establish and direct
educational institutions, subject always to the
observance of the principle set forth in paragraph 1
of the present article and to the requirements that
the education given in such institutions shall
conform to such minimum standards as may be laid
down by the State.
93. Provisions referred to above and other provisions of
International Conventions indicate that the rights have been
guaranteed to the children and those rights carry
corresponding State obligations to respect, protect and fulfill
the realization of children's rights. The obligation to protect
implies the horizontal right which casts an obligation on the
State to see that it is not violated by non-state actors. For
non-state actors to respect children's rights cast a negative
duty of non-violation to protect children's rights and a
positive duty on them to prevent the violation of children's
rights by others, and also to fulfill children's rights and take
measures for progressive improvement. In other words, in
the spheres of non-state activity there shall be no violation of
children's rights.
123
94. Article 24 of the Indian Constitution states that no
child below the age of 14 years shall be employed to work in
any factory or be engaged in any hazardous employment.
The Factories Act, 1948 prohibits the employment of children
below the age of 14 years in any factory. Mines Act, 1952
prohibits the employment of children below 14 years. Child
Labour (Prohibition and Regulation) Act, 1986 prohibits
employment of children in certain employments. Children
Act, 1960 provides for the care, protection, maintenance,
welfare, training, education and rehabilitation of neglected or
delinquent children. Juvenile Justice (Care and Protection of
Children) Act, 1986 (the Amendment Act 33 of 2006) provide
for the care, protection, development and rehabilitation of
neglected and delinquent juveniles. There are also other
legislations enacted for the care and protection of children
like Immoral Trafficking Prevention Act, 1956, Prohibition of
Child Marriage Act, 2006 and so on. Legislations referred to
above cast an obligation on non-state actors to respect and
protect children's rights and not to impair or destroy the
rights guaranteed to children, but no positive obligation to
make available those rights.
124
95. Primary responsibility for children's rights, therefore,
lies with the State and the State has to respect, protect and
fulfill children's rights and has also got a duty to regulate the
private institutions that care for children, to protect children
from violence or abuse, to protect children from economic
exploitation, hazardous work and to ensure human treatment
of children. Non-state actors exercising the state functions
like establishing and running private educational institutions
are also expected to respect and protect the rights of the
child, but they are, not expected to surrender their rights
constitutionally guaranteed.
96. Article 21A requires non-state actors to achieve the
socio-economic rights of children in the sense that they shall
not destroy or impair those rights and also owe a duty of
care. The State, however, cannot free itself from obligations
under Article 21A by offloading or outsourcing its obligation
to private State actors like unaided private educational
institutions or to coerce them to act on the State's dictate.
Private educational institutions have to empower the
children, through developing their skills, learning and other
capacities, human dignity, self-esteem and self-confidence
125
and to respect their constitutional rights.
97. I have in the earlier part of the judgment referred to
Article 28(1) and Article 29 of UNCRC which cast an
obligation on the State to progressively achieve the rights of
children and also to make primary education compulsory and
available free to all but all the same make it clear that no part
of Articles 28 and 29 be construed to interfere with the liberty
of non-state actors. They are expected to observe the
principles set forth in Para 1 of Article 29 and also to conform
to such minimum standards as laid down by the state.
98. South African Constitution Bench in Governing Body
of the Juma Musjid Primary School v. Minister for
Education [[2011] ZACC 13] dealt with the interplay between
private rights and the State's obligation to provide right to
education. In that case, the Court held that the primary
positive obligation to provide the right to education resides on
the Government and the purpose of Section 8(2) of the
Constitution is not to obstruct private autonomy or to impose
on a private party the duties of the state in protecting the Bill
of Rights. That was a case involving balancing of proprietary
rights of a trust seeking to evict a public school in order to
126
establish an independent school. One of the pleas raised by
the evictees was that the evictor trust also had an obligation
towards the right to education of the learners which it could
not ignore. The Constitutional Court held that the only
obligation of a private party as regards socio-economic rights,
like right to education, is a negative obligation i.e. not to
unreasonably interfere with the realization of the right and
that there is no positive obligation cast on them to protect the
right by surrendering their rights.
99. Pai Foundation and Inamdar also cast a negative
obligation on the private educational institutions in the sense
that there shall be no profiteering, no demand of excessive
fee, no capitation fee, no maladministration, no cross subsidy
etc. Further, this Court, while interdicting the State in
appropriating seats in private educational institutions,
restrained them from interfering with the autonomy of those
institutions and adopted a balancing approach laying down
the principle of voluntariness, co-operation, concession, and
so on.
100. Pai Foundation and Inamdar have categorically
held that any action of the State to regulate or control
127
admissions in the unaided professional educational
institutions, so as to compel them to give up a share of the
available seats to the candidates chosen by the State, as if it
was filling the seats available to be filled up at its discretion
in such private institutions, would amount to nationalization
of seats. Such imposition of quota of State seats or enforcing
reservation policy of the State on available seats in unaided
professional institutions, it was held, are acts constituting
serious encroachment on the right and autonomy of private
unaided professional educational institutions and such
appropriation of seats cannot be held to be a regulatory
measure in the interest of minority within the meaning of
Article 30(1) or a reasonable restriction within the meaning of
Article 19(6) of the Constitution, so far as the unaided
minority institutions are concerned.
PART IV
101. Article 21A has used the expression "State shall
provide" not "provide for" hence the constitutional obligation
to provide education is on the State and not on non-state
actors, the expression is clear and unambiguous and to
interpret that expression to mean that constitutional
128
obligation or responsibility is on private unaided educational
institutions also, in my view, doing violence to the language
of that expression. The obligation of the State to provide free
and compulsory education is without any limitation.
Parliament in its wisdom has not used the expression
"provide for". If the preposition "for" has been used then the
duty of the State would be only to provide education to those
who require it but to provide for education or rather to see
that it is provided. In this connection it is useful to refer to
the judgment of the Supreme Court of Ireland in Crowley v.
Ireland [(1980) IR 102], where the expression "provide for"
came up for interpretation. It was held that the use of the
preposition "for" keeps the State at one remove from the
actual provision of education indicating that once the State
has made an arrangement for the provision of education
provided the buildings, pay teachers and set the curriculum -
it is absolved of the responsibility when the education is not
actually delivered. The absence of the preposition "for" in
Article 21A makes the duty on the State imperative. State
has, therefore, to "provide" and "not provide for" through
unaided private educational institutions.
129
102. Article 21A has used the expression "such manner"
which means the manner in which the State has to discharge
its constitutional obligation and not offloading those
obligations on unaided educational institutions. If the
Constitution wanted that obligation to be shared by private
unaided educational institutions the same would have been
made explicit in Article 21A. Further, unamended Article 45
has used the expression "state shall endeavour.....for" and
when Article 21A was inserted, the expression used therein
was that the "State shall provide" and not "provide for" the
duty, which was directory earlier made mandatory so far as
State is concerned. Article 21 read with 21A, therefore, cast
an obligation on the State and State alone.
103. The State has necessarily to meet all expenses of
education of children of the age 6 to 14 years, which is a
constitutional obligation under Article 21A of the
Constitution. Children have also got a constitutional right to
get free and compulsory education, which right can be
enforced against the State, since the obligation is on the
State. Children who opt to join an unaided private
educational institution cannot claim that right as against the
unaided private educational institution, since they have no
130
constitutional obligation to provide free and compulsory
education under Article 21A of the Constitution. Needless to
say that if children are voluntarily admitted in a private
unaided educational institution, children can claim their
right against the State, so also the institution. Article 51A(k)
of the Constitution states that it shall be the duty of every
citizen of India, who is a parent or guardian, to provide
opportunities for education to his child. Parents have no
constitutional obligation under Article 21A of the
Constitution to provide free and compulsory education to
their children, but only a constitutional duty, then one fails
to see how that obligation can be offloaded to unaided private
educational institutions against their wish, by law, when they
have neither a duty under the Directive Principles of State
policy nor a constitutional obligation under Article 21A, to
those 25% children, especially when their parents have no
constitutional obligation.
104. In Avinash Mehrotra v. Union of India & Others
[{2009} 6 SCC 398], this Court held that Article 21A imposes
a duty on the State, while Article 51A(k) places burden on the
parents to provide free and compulsory education to the
children of the age 6 to 14 years. There exists a positive
131
obligation on the State and a negative obligation on the non-
state actors, like private educational institutions, not to
unreasonably interfere with the realization of the children's
rights and the state cannot offload their obligation on the
private unaided educational institutions.
105. I am, therefore, of the considered view that Article
21A, as such, does not cast any obligation on the private
unaided educational institutions to provide free and
compulsory education to children of the age 6 to 14 years.
Article 21A casts constitutional obligation on the State to
provide free and compulsory education to children of the age
6 to 14 years.
CONSTITUTIONALLY IMPERMISSIBLE PROCEDURE
ADOPTED TO ACHIEVE SOCIAL INCLUSIVENESS UNDER
THE ACT.
106. I may endorse the view that the purpose and object
of the Act is laudable, that is, social inclusiveness in the field
of elementary education but the means adopted to achieve
that objective is faulty and constitutionally impermissible.
Possibly, the object and purpose of the Act could be achieved
by limiting or curtailing the fundamental rights guaranteed to
the unaided non-minority and minority educational
132
institutions under Article 19(1)(g) and Article 30(1) or
imposing a positive obligation on them under Article 21A, but
this has not been done in the instant case. I have extensively
dealt with the question - how the socio economic rights could
be achieved by making suitable constitutional amendments
in Part II of this judgment.
107. Sections 12(1)(b) and 12(1)(c) are vehicles through
which the concept of social inclusiveness is sought to be
introduced into the private schools both aided and unaided
including minority institutions, so as to achieve the object of
free and compulsory education of the satisfactory quality to
the disadvantaged groups and weaker sections of the society.
The purpose, it is pointed out, is to move towards composite
classrooms with children from diverse backgrounds, rather
than homogenous and exclusive schools and it was felt that
heterogeneity in classrooms leads to greater creativity. In
order to understand the scope of the above mentioned
provisions and the object sought to be achieved, it is
necessary to refer to those and other related provisions:-
Section 12:- Extent of School's responsibility for
free and compulsory education
133
(1) For the purposes of this Act, a school, -
(a) specified in sub-clause(i) of clause (n)
of section 2 shall provide free and
compulsory elementary education to all
children admitted therein ;
(b) specified in sub-clause(ii) of clause
(n) of section 2 shall provide free and
compulsory elementary education to such
proportion of children admitted therein as
its annual recurring aid or grants so
received bears to its annual recurring
expenses, subject to a minimum of
twenty-five per cent.;
(c) specified in sub-clauses (iii) and (iv) of
clause (n) of section 2 shall admit in class
I, to the extent of at least twenty-five per
cent of the strength of that class, children
belonging to weaker section and
disadvantaged group in the
neighbourhood and provide free and
compulsory elementary education till its
completion:
Provided further that where a school specified in
clause (n) of section 2 imparts pre-school education,
the provisions of clauses (a) to (c) shall apply for
admission to such pre-school education.
(2) 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 expenditure so
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
134
school specified n sub-clause (i) of clause(n) of
section 2:
Provided further 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.
(3) Every school shall provide such
information as may be required by the appropriate
Government or the local authority, as the case may
be.
Reference may be also be made to definition clauses.
2(d) "child belonging to disadvantaged group"
means a child belonging to the Scheduled Caste,
the Scheduled Tribe, the socially and educationally
backward class or such other group having
disadvantage owing to social, cultural, economical,
geographical, linguistic, gender or such other
factor, as may be specified by the appropriate
Government, by notification;
2(e) "child belonging to weaker section" means a
child belonging to such parent or guardian whose
annual income is lower that the minimum limit
specified by the appropriate Government, by
notification;
2(n) "school" means any recognized school
imparting elementary education and includes
(i) a school established, owned or controlled by
the appropriate Government or a local authority;
(ii) an aided school receiving aid or grants to
meet whole or part of its expenses from the
appropriate Government or the local authority.
135
(iii) a school belonging to specified category; and
(iv) an unaided school not receiving any kind of
aid or grants to meet its expenses from the
appropriate Government or the local authority.
(A) Unaided Educational Institutions, minority and non-
minority:
108. First, I may deal with the challenge against Section
12(1)(c), which casts an obligation on the unaided private
educational institutions both non-minority and minority to
admit to class 1 at least 25% of the strength of those children
falling under Sections 2(d) and 2(e), and also in the pre-
school, if there is one. State also has undertaken re-
imbursement of the fees of those children to the extent of per-
child expenditure incurred by the State.
109. Right of a citizen to establish and run an educational
institution investing his own capital is recognized as a
fundamental right under Article 19(1)(g) and the right of the
State to impose reasonable restrictions under Article 19(6) is
also conceded. Citizens of this country have no constitutional
obligation to start an educational institution and the question
is after having started private schools, do they owe a
136
constitutional obligation for seat sharing with the State on a
fee structure determined by the State. Pai Foundation and
Inamdar took the view that the State cannot regulate or
control admission in unaided educational institutions so as to
compel them to give up a share of available seats which
according to the court would amount to nationalization of
seats and such an appropriation of seats would constitute
serious encroachment on the right and autonomy of the
unaided educational institutions. Both Pai Foundation and
Inamdar are unanimous in their view that such
appropriation of seats cannot be held to be a regulatory
measure in the interest of rights of the unaided minority
educational institutions guaranteed under Article 30(1) of the
Constitution or a reasonable restriction within the meaning of
Article 19(6) in the case of unaided non-minority educational
institution. Inamdar has also held that to admit students
being an unfettered fundamental right, the State cannot
make fetters upto the level of under graduate education.
Unaided educational institutions enjoy total freedom and they
can legitimately claim `unfettered fundamental rights' to
choose students subject to its being fair, transparent and
non-exploitative.
137
110. Section 12(1)(c) read with Section 2(n)(iv) of the Act
never envisages any distinction between unaided minority
schools and non-minority schools. Constitution Benches of
this Court have categorically held that so far as appropriation
of quota by the State and enforcement of reservation policy is
concerned, there is not much difference between unaided
minority and non-minority educational institutions (Refer
Paras 124, 125 of Inamdar). Further, it was also held that
both unaided minority and non-minority educational
institutions enjoy "total freedom" and can claim "unfettered
fundamental rights" in the matter of appropriation of quota
by the State and enforcement of reservation policy. This
Court also held that imposition of quota or enforcing
reservation policy are acts constituting serious encroachment
on the right and autonomy of such institutions both minority
(religious and linguistic) and non- minority and cannot be
held to be a regulatory measure in the interest of minority
within the meaning of Article 30(1) or a reasonable restriction
within the meaning of Article 19(6) of the Constitution.
Therefore, no distinction or difference can be drawn between
unaided minority schools and unaided non-minority schools
138
with regard to appropriation of quota by the State or its
reservation policy under Section 12(1)(c) of the Act.
111. I am of the view, going by the ratio laid down by Pai
Foundation and Inamdar, to compel the unaided non
minority and minority private educational institutions, to
admit 25% of the students on the fee structure determined by
the State, is nothing but an invasion as well as appropriation
of the rights guaranteed to them under Article 19(1)(g) and
Article 30(1) of the Constitution. Legislature cannot under
the guise of interest of general public "arbitrarily cast burden
or responsibility on private citizens running a private school,
totally unaided". Section 12(1)(c) was enacted not only to
offload or outsource the constitutional obligation of the State
to the private unaided educational institutions, but also to
burden them with duties which they do not constitutionally
owe to children included in Section 2(d) or (e) of the Act or to
their parents.
112. Pai Foundation, in paragraph 57 of the judgment
has stated that in as much as the occupation of education is,
in a sense, regarded as charitable, the Government can
139
provide regulations that will ensure excellence in education,
while forbidding the charging of capitation fee and
profiteering by the institution. Further, it was also pointed
out that in the establishment of an educational institution,
the object should not be to make profit, inasmuch as
education is essentially charitable in nature. However, there
can be a reasonable revenue surplus, which may be
generated by the educational institutions for the purpose of
development of education and their expansion.
Consequently, the mere fact that education in one sense, is
regarded as charitable, the Government cannot appropriate
25% of the seats of the unaided private educational
institutions on the ground that providing education is
charity. Pai Foundation and Inamdar after holding that
occupation of education can be regarded as charitable held
that the appropriation of seats in an unaided private
educational institution would amount to nationalization of
seats and an inroad into their autonomy. The object and
purpose of Section 12(1)(c), it may be noted, is not to reduce
commercialization. Pai Foundation and Inamdar have
clearly denounced commercialization of education.
140
113. Right to establish and administer and run a private
unaided educational institution is the very openness of
personal freedom and opportunity which is constitutionally
protected, which right cannot be robbed or coerced against
his will at the threat of non-recognition or non-affiliation.
Right to establish a private unaided educational institution
and to make reasonable profit is recognized by Article 19(1)(g)
so as to achieve economic security and stability even if it is
for charity. Rights protected under Article 19(1)(g) are
fundamental in nature, inherent and are sacred and valuable
rights of citizens which can be abridged only to the extent
that is necessary to ensure public peace, health, morality etc.
and to the extent of the constitutional limitation provided in
that Article. Reimbursement of fees at the Government rate is
not an answer when the unaided private educational
institutions have no constitutional obligation and their
Constitutional rights are invaded.
114. Private unaided educational institutions are established
with lot of capital investment, maybe with loan and
borrowings. To maintain high standard of education, well
qualified and experienced teachers have to be appointed, at
141
times with hefty salary. Well equipped library, laboratory etc
have also to be set up. In other words considerable money by
way of capital investment and overhead expenses would go
into for establishing and maintaining a good quality unaided
educational institution. Section 12(1)(c), in my view, would
amount to appropriation of one's labour and makes an inroad
into the autonomy of the institution. Unaided educational
institutions, over a period of time, might have established
their own reputation and goodwill, a quantifiable asset.
Nobody can be allowed to rob that without their permission,
not even the State. Section 12(1)(c) is not a restriction which
falls under Article 19(6) but cast a burden on private unaided
educational institutions to admit and teach children at the
state dictate, on a fee structure determined by the State
which, in my view, would abridge and destroy the freedom
guaranteed to them under Article 19(1)(g) of the Constitution.
115. Parliament can enact a social legislation to give effect
to the Directive Principles of the State Policy, but so far as the
present case is concerned, neither the Directive Principles of
the State Policy nor Article 21A cast any duty or obligation on
the unaided private educational institutions to provide free
142
and compulsory education to children of the age of 6 to 14.
Section 12(1)(c) has, therefore, no foundation either on the
Directive Principles of the State Policy or Article 21A of the
Constitution, so as to rope in unaided educational
institutions. Directive Principles of the State Policy as well as
Article 21A cast the constitutional obligation on the State and
State alone. State, cannot offload or outsource that
Constitutional obligation to the private unaided educational
institutions and the same can be done only by a
constitutional provision and not by an ordinary legislation.
116. Articles 41, 45 and 46 of Part IV of the Constitution
cast the duty and constitutional obligations on the State
under Article 21A, apart from other constitutional principles
laid down by Pai Foundation as well as Inamdar. Section
12(1)(c) has neither the constitutional support of Article 21A,
nor the support of Articles 41, 45 or 46, since those
provisions cast duty only on the State and State alone. The
policies laid down under Articles 41, 45 and 46 can always be
achieved by carrying out necessary amendment to the
fundamental rights. However, so far as the present case is
concerned, Article 21A has been enacted to cast a
143
constitutional obligation on the state and a duty upon the
State under Articles 41, 45 and 46. I have pointed out that it
is to get over such situations and for the removal of such
obstacles several constitutional amendments were
necessitated which I have extensively dealt with in Part II of
my judgment.
117. Section 12(1)(c) seeks to achieve what cannot be
achieved directly especially after the interpretation placed by
Pai Foundation and Inamdar on Article 19(1)(g) and Article
30(1) of the Constitution. Inamdar has clearly held that
right to set up, and administer a private unaided educational
institution is an unfettered right, but 12(1)(c) impose fetters
on that right which is constitutionally impermissible going by
the principles laid down by Pai Foundation and Inamdar.
Section 12(1)(c), in my view, can be given effect to, only on
the basis of principles of voluntariness and consensus laid
down in Pai Foudnation and Inamdar or else, it may violate
the rights guaranteed to unaided minority and non-minority
institutions.
118. Constitution of India has expressly conferred the
power of judicial review on Courts and the Legislature cannot
144
disobey the constitutional mandate or the constitutional
principle laid down by Courts under the guise of social
inclusiveness. Smaller inroad like Section 12(1)(c) may lead
to larger inroad, ultimately resulting in total prohibition of the
rights guaranteed under Articles 19(1)(g), 29(2) and 30(1) as
interpreted by the Pai Foundation and Inamdar. Court, in
such situations, owe a duty to lift the veil of the form and
appearance to discover the true character and nature of the
legislation and if it has the effect of bypassing or ignoring the
constitutional principles laid down by the Constitutional
Courts and violate fundamental rights, the same has to be
nullified.
119. Pai Foundation and Inamdar have not laid down
any new constitutional principle, but only declared what the
law is. Constitutional principles laid by courts get
assimilated in Articles 19(1)(g), 29(2) and 30(1) and can be
undone not by legislation, but only by constitutional
amendments. The object to be achieved by the legislation
may be laudable, but if it is secured by a method which
offends fundamental rights and constitutional principles, the
law must be struck down as unconstitutional. The
145
constitutional provision like Article 19(1)(g) is a check on the
exercise of legislative power and it is the duty of the
constitutional court to protect the constitutional rights of the
citizens against any encroachment, as it is often said,
"smaller inroad may lead to larger inroad and ultimately
resulting into nationalization or even total prohibition."
Section 12(1)(c), if upheld would resurrect Unni Krishnan
scheme which was nullified by Pai Foundation and
Inamdar.
120. I am, therefore, of the view that so far as unaided
educational institutions both minority and non-minority are
concerned the obligation cast under Section 12(1)(c) is only
directory and the said provision is accordingly read down
holding that it is open to the private unaided educational
institutions, both minority and non-minority, at their volition
to admit children who belong to the weaker sections and
disadvantaged group in the neighbourhood in their
educational institutions as well as in pre-schools.
(B) Aided Educational Institutions, minority and non-
minority:
146
121. Section 12(1)(b) deals with the schools receiving aid or
grants to meet whole or part of its expenses from the
appropriate government or local authority. Those schools are
bound to provide free and compulsory elementary education
to such proportion of children subject to a minimum of 25%
depending upon its annual recurring aid or grants so
received. Pai Foundation has clearly drawn a distinction
between aided private educational institutions and unaided
private educational institutions both minority and non-
minority. So far as private aided educational institutions,
both minority and non-minority are concerned, it has been
clearly held in Pai Foundation that once aid is provided to
those institutions by the Government or any state agency, as
a condition of grant or aid, they can put fetters on the
freedom in the matter of administration and management of
the institution. Aided institutions cannot obtain the extent of
autonomy in relation to the management and administration
as would be available to a private unaided institution. Pai
Foundation after referring to St. Stephen judgment and
Articles 29 and 30 held that even if it is possible to fill up all
the seats with minority group the moment the institution is
granted aid the institution will have to admit students from
147
non-minority group to a reasonable extent without
annihilating the character of the institution. In St. Stephen
case which I have already dealt with in the earlier paragraphs
of the judgment, the Court held that the State may regulate
intake in a minority aided educational institution with due
regard to the need of the community of that area where the
institution is intending to serve. However, it was held in no
case such intake shall exceed 50% of the annual admission.
Minority aided educational institutions, it was held, shall
make available at least 50% of the annual admission to the
members of the communities other than minority community.
The Court also held by admitting a member of a non minority
into a minority institution, it does not shed its character and
cease to be a minority institution and such "sprinkling of
outsiders" would enable the distinct language, script and
culture of a minority to be propagated amongst non members
of a particular community and would indeed better serve the
object of serving the language, religion and culture of that
minority. I may also add that Section 12(1)(b) equally
safeguards the rights of the members of religious and
linguistic minority communities. Section 2(e) deals with the
`child belonging to weaker section' of the minority
148
communities, religious or linguistic, who would also get the
benefit of Section 12(1)(b) and, therefore, the contention that
Section 12(1)(b), as such, would stand against the interest of
the religious and linguistic minority communities is
unfounded.
122. Applying the principle laid down in Pai Foundation,
Inamdar, St. Stephen and in Re. Kerala Education Bill, I
am of the view that clause 12(1)(b) directing the aided
educational institutions minority and non-minority to provide
admission to the children of the age group of 6 to14 years
would not affect the autonomy or the rights guaranteed under
Article 19(1)(g) or Article 30(1) of the Constitution of India. I,
therefore, reject the challenge against the validity of Section
12(1)(b) and hold that the provision is constitutionally valid.
PART V
123. Private unaided educational institutions, apart from
challenging Section 12(1)(c), have also raised various
objections with regard to other provisions of the Act. Learned
senior counsels appearing for them submitted that Sections
3, 6, 7, 8 and 9 read with Sections 4, 5 and 10 impose duties
149
and obligations upon the appropriate government and local
authority and those sections completely answer and fulfill the
mandate contained in Article 21A as against the State.
Section 3 recognizes the right of the child to free and
compulsory education in a neighbourhood school. Unaided
educational institutions have only a negative duty of not
interfering with the right of the child and not to unreasonably
interfere with the realization of those rights and there is no
obligation to surrender their rights guaranteed under Article
19(1)(g) and Article 30(1), recognized in Pai Foundation and
Inamdar. Children can, therefore, enforce their
constitutional and statutory rights against the educational
institutions run by the State, local authority qua aided
educational institution and not against unaided minority and
non-minority educational institutions. It is so declared.
124. Petitioners have not raised any objection with regard
to prohibition imposed under Section 13 against collecting
the capitation fee which they are bound to follow even on the
declaration of law, by Pai Foundation and Inamdar.
Petitioners submitted that a fair and transparent screening
procedure is being followed by all the schools. So far as
150
Section 14 is concerned, petitioners have submitted that
schools always give opportunity to the child/parent to
produce some authentic proof to ascertain the age of the
child. Petitioners, referring to Section 15, submitted that the
child has to adhere to the academic procedure laid down by
the institutions and there will be no denial of admission to
the children subject to the availability of seats. With regard
to Section 16, it was contended that the prohibition against
holding back any student in any class or expelling any
student regardless of how grave the provocation may be,
imposes unreasonable and arbitrary restriction which would
completely destroy the unique educational system followed by
some of the unaided educational institutions.
125. Shri Chander Uday Singh, senior counsel appearing in
Writ Petition (Civil) No. 83 of 2011, submitted that they are
following the International Baccalaureate system of
education; the syllabus, curriculum, method of instructions
are totally different from other schools. There are no day
scholars, and all the students have to stay in the Boarding
and the school fees is also high. Most of the students
studying in the school are not from the neighbourhood but
151
from all over the country and abroad. School has its own
rules and regulations. Prohibition of holding back and
expulsion of students in an unaided private educational
institution depends upon the academic and disciplinary
procedure laid down by the school and its parent body.
Counsel, referring to Section 17 of the Act, submitted that the
prohibition of physical punishment and mental harassment is
a welcome provision which the schools follow.
126. Learned senior counsel also submitted that some of
their schools are not affiliated or recognized by any State
Education Board or the Board constituted by the Central
Government or the Indian Council of Secondary Education
etc. and those schools generally follow the rules laid down by
the recognizing body and are, therefore, unable to fulfill the
norms and standards specified in the schedule referred to in
Section 19.
127. Counsel appearing for the unaided institutions
contended that the curriculum and evaluation procedure laid
down by the body affiliating or recognizing the institutions are
being followed by them and the provisions stipulated in
Section 29(2) are generally being adhered to by their schools.
152
With regard to Section 23 of the Act, counsels submitted that
some of the unaided private educational institutions employ
the teachers from outside the country as it encourages cross-
fertilization of ideas and educational systems and practices
and the qualifications provided by the institutions may not be
as prescribed under Section 23 of the Act and the
qualifications provided therein may not be sufficient for
appointment as teachers in the schools affiliated to
International Baccalaureate system. Learned counsel
appearing for the unaided private educational institutions
also referred to Rules 9, 11 to 15 and 23 and explained how it
affects their autonomy and status of their institutions.
128. I have extensively dealt with the contentions raised
by the unaided private educational institutions and I am of
the view that not only Section 12(1)(c), but rest of the
provisions in the Act are only directory so far as those
institutions are concerned, but they are bound by the
declaration of law by Pai Foundation and Inamdar, like
there shall be no profiteering, no maladministration, no
demand for capitation fee and so on and they have to follow
the general laws of the land like taxation, public safety,
153
sanitation, morality, social welfare etc.
129. I may indicate that so far as the rest of the schools
are concerned, including aided minority and non-minority
educational institutions, they have necessarily to follow the
various provisions in the Act since I have upheld the validity
of Section 12(1)(b) of the Act. Certain objections have also
been raised by them with regard to some of the provisions of
the Act, especially by the aided minority community.
Contention was raised that Sections 21 and 22 of the Act,
read with Rule 3, cast an obligation on those schools to
constitute a School Management Committee consisting of
elected representatives of the local authority which amounts
to taking away the rights guaranteed to the aided minority
schools, under Article 30(1) of the Constitution. Learned
Additional Solicitor General has made available a copy of a
Bill, proposing amendment to Section 21, adding a provision
stating that the School Management Committee constituted
under sub-section (1) of Section 21 in respect of a school
established and administered by minority whether based on
religion or language, shall perform advisory functions only.
The apprehension that the committee constituted under
154
Section 21(1) would replace the minority educational
institution is, therefore, unfounded. [Ref. F.No.1-22009-E.E-4
of Government of India (Annexure A-3)].
130. Petitioners have also raised objections against the
restrictions imposed in following any screening procedure
before admitting children to their schools under Sections 13
or 14 of the Act, which according to the petitioners, takes
away the autonomy of the institutions. Several
representations were received by the Ministry of Human
Resources and Development, Government of India seeking
clarification on that aspect and the Ministry issued a
notification dated 23.11.2009 under Section 35(1) of the Act
laying guidelines to be followed by both unaided and aided
educational institutions. It was pointed out that the object of
the provisions of Section 13(1) read with Section 2(d) is to
ensure that schools adopt an admission procedure which is
non-discriminatory, rational and transparent and the schools
do not subject children and their parents to admission tests
and interviews so as to deny admission. I find no infirmity in
Section 13, which has nexus with the object sought to be
achieved, that is access to education.
155
131. Contention was also raised by them against Section
14(2) which provides that no child shall be denied admission
in a school for lack of age proof which, according to them, will
cause difficulty to the management to ascertain the age of the
child. Section 14 stipulates that the age of a child shall be
determined on the basis of the birth certificate issued in
accordance with the provisions of the Birth, Death and
Marriages Registration Act, 1986, or the other related
documents. The object and purpose of Section 14 is that the
school shall not deny access to education due to lack of age
proof. I find no legal infirmity in that provision, considering
the overall purpose and object of the Act. Section 15 states
that a child shall not be denied admission even if the child is
seeking admission subsequent to the extended period. A
child who evinces an interest in pursuing education shall
never be discouraged, so that the purpose envisaged under
the Act could be achieved. I find no legal infirmity in that
provision.
132. Challenge was also made to Section 16 of the Act
stating that it will lead to indiscipline and also deteriorate the
quality of the education, which I find difficult to agree with
156
looking to the object and purpose of the Act. Holding back in
a class or expulsion may lead to large number of drop outs
from the school, which will defeat the very purpose and object
of the Act, which is to strengthen the social fabric of
democracy and to create a just and humane society.
Provision has been incorporated in the Act to provide for
special tuition for the children who are found to be deficient
in their studies, the idea is that failing a child is an unjust
mortification of the child personality, too young to face the
failure in life in his or her early stages of education. Duty is
cast on everyone to support the child and the child's failure is
often not due the child's fault, but several other factors. No
legal infirmity is found in that provision, hence the challenge
against Section 16 is rejected.
133. Petitioners have not raised any objection with regard
to Section 17, in my view, rightly. Sections 18 and 19 insist
that no school shall be established without obtaining
certificate of recognition under the Act and that the norms
and standards specified in the schedule be fulfilled, if not
already fulfilled, within a stipulated time. There is nothing
objectionable in those provisions warranting our interference.
157
Section 23, in my view, would not take away the freedom of
aided minority educational institutions for the reasons
already stated by us. No infirmity is also found with regard to
Sections 24 to 28 of the Act since the object and purpose of
those provisions are to provide education of satisfactory
quality so that the ultimate object of the Act would be
achieved.
134. Learned counsel also submitted that some of the
aided minority and non-minority educational institutions are
following the curriculum as laid down by independent
recognized Boards such as CBSE, ICSE etc. and they are
competent bodies for laying down such procedures and in
case those schools are compelled to follow the curriculum
and evaluation procedure laid down in Section 29, the
schools would be put to considerable inconvenience and
difficulties and may affect the quality of education.
135. I am of the view that requiring the minority and non-
minority institutions to follow the National Curriculum
Framework or a Curriculum Framework made by the State,
would not abrogate the right under Article 19(1)(g) or Article
30(1) of the Constitution. Requirement that the curriculum
158
adopted by a minority institution should comply with certain
basic norms is in consonance with the values enshrined in
the Constitution and cannot be considered to be violative of
the rights guaranteed to them under Article 30(1). Further,
the curriculum framework contemplated by Section 29(1)
does not subvert the freedom of an institution to choose the
nature of education that it imparts, as well as the affiliation
with the CBSE or other educational boards. Over and above,
what has been prescribed by those affiliating or recognizing
bodies is that these schools have also to follow the
curriculum framework contemplated by Section 29(1) so as to
achieve the object and purpose of the Act. I, therefore, find
no infirmity in the curriculum or evaluation procedure laid
down in Section 29 of the Act.
136. Section 30 of the Act which provides that no child
shall be required to pass any Board examination till the
completion of elementary education and that on completion of
elementary education, the child shall be awarded a certificate.
Education is free and compulsory for the children of the age 6
to 14 years and the object and purpose is to see that children
should complete elementary education. If they are subjected
159
to any Board Examination and to any screening procedure,
then the desired object would not be achieved. The object
and purpose of Section 30 is to see that a child shall not be
held back in any class so that the child would complete his
elementary education. The Legislature noticed that there are
a large number of children from the disadvantaged groups
and weaker sections who drop out of the schools before
completing the elementary education, if promotion to higher
class is subject to screening. Past experience shows that
many of such children have dropped out of the schools and
are being exploited physically and mentally. Universal
Elementary Education eluded those children due to various
reasons and it is in order to curb all those maladies that the
Act has provided for free and compulsory education. I,
therefore, find no merit in the challenge against those
provisions which are enacted to achieve the goal of universal
elementary education for strengthening the social fabric of
the society.
137. Counsel appearing for some of the aided minority
institutions raised a doubt as to whether the Act has got any
impact on the Freedom of Religion and Conscience
160
guaranteed under Article 25 insofar as it applies to
institutions run by a religious denomination. It was clarified
by the Union of India that the Act would apply to institutions
run by religious denominations in case the institution
predominantly offers primary education either exclusively or
in addition to religious instruction. It was pointed out that
where the institution predominantly provides religious
instructions like Madrasas, Vedic Pathshalas etc. and do not
provide formal secular education, they are exempted from the
applicability of the Act. The Act, therefore, does not interfere
with the protection guaranteed under Articles 25 and 26 of
the Constitution and the provisions in the Act in no way
prevent the giving of religious education to students who wish
to take religious education in addition to primary education.
Article 25 makes it clear that the State reserves the right to
regulate or restrict any economic, financial, political or other
secular activities which are associated with religious practice
and also states that the State can legislate for social welfare
and reform, even though by doing so it would interfere with
the religious practices. Madrasas and Vedic Pathshalas, as I
have already indicated, predominantly provide religious
instruction and do not provide formal secular education and,
161
hence, they are exempted from the applicability of the Act.
The Central Government has now issued Guidelines dated
23.11.2010 under Section 35(1) of the Act clarifying the above
position. The operative part of the guidelines reads as
under:
"3. Institutions, including Madrasas and
Vedic Pathshalas, especially serving religious and
linguistic minorities are protected under Articles 29
and 30 of the Constitution. The RTE Act does not
come in the way of continuance of such
institutions, or the rights of children in such
institutions."
Madrasas, Vedic Pathshalas and similar institutions serving
religious and linguistic minorities as such are, therefore,
protected under Articles 29 and 30 of the Constitution from
the rigour of the Act.
138. The Act has now brought in the concept of public-
private partnership for achieving the goal of Universal
Elementary Education. It also stresses upon the importance
of preparing and strengthening the schools to address all
kinds of diversities arising from inequalities of gender, caste,
language, culture, religious or other disabilities. The concept
of neighbourhood schools has also been incorporated for the
first time through a legislation and the right of access of the
162
children to elementary education of satisfactory and equitable
quality has also been ensured. The duties and
responsibilities of the appropriate government, local
authorities, parents, schools and teachers in providing free
and compulsory education, a system for protection of the
right of children and a decentralized grievance mechanism
has been provided by the Legislature. Obligation has also
been cast on the State and the local authority to establish
neighbourhood schools within a period of three years from
the commencement of the Act and the Central Government
and the State Governments have concurrent responsibilities
for providing funds for carrying out all the provisions of the
Act and the duties and responsibilities cast on the local
authorities as well. A provision has also been made in the
Act for pre-school education for children above the age of
three years. The purpose is to prepare them for elementary
education and to provide early childhood care and education
for all children until they complete the age of six years and
the appropriate government has to take necessary steps for
providing free pre-school education for such children.
Further, the Act also cast a duty on every parent or guardian
to admit or cause to be admitted his or her child or ward, as
163
the case may be, for an elementary education in the
neighbourhood school, which is in conformity with Article
51A(k) of the Constitution.
139. The State has played a dominant role in providing
educational services through the Government schools, largely
managed by State Governments and local bodies, as well as
through privately managed but publicly funded schools called
government-aided schools. These aided schools are operated
by charitable trusts, voluntary organizations, and religious
bodies but receive substantial funding from the government.
According to the Indian Human Development Survey (IHDS),
2005 about 67% of students attend government schools,
about 5% attend government-aided schools, and 24% attend
private schools. Convents and Madrasas account for about
1-2%. The survey conducted by IHDS indicates that in 2005
about 21% of rural and 51% of urban children were enrolled
in private schools. Part of this increase in private school
enrolment has come about through a decline in enrolment in
government-aided schools. In 1994, nearly 22% of rural
children were enrolled in government-aided schools. By
2005, this declined to a bare 7% in rural areas and 5% in
164
urban areas. At an all India level, 72% of children are
enrolled in government schools, and about 28% are in private
schools. The survey further indicates that the children
between 6-14 years old, about 40% participated in private
sector education either through enrolment in private school
(20%), through private tuition (13%), or both (7%). The
growing preference for private schooling and the reliance on
private tutoring, has to be seen in the context of differences
in admission of children in government and private schools.
The quality of education in government schools, due to
various reasons, has gone down considerably. The Act is also
envisaged on the belief that the schools run by the
appropriate government, local authorities, aided and
unaided, minority and non-minority, would provide
satisfactory quality education to the children, especially
children from disadvantaged and weaker sections.
140. Private aided educational institutions, though run
on aid and grant provided by the State, generally the
payment to such schools is not performance oriented. The
State Governments provide 100% salary to the teachers on its
roll on monthly basis and some State Governments would
165
provide 90%. Generally, the State Governments do not
provide capital cost either for construction or for repair and
whenever these schools are aided, the school fee is regulated
and is generally equal to the fee prevailing in the government
schools. The recruitment of teaches by these schools is also
subject to the Government regulation like inclusion of a
representative of the Government in the selection committee,
or the appointment being subject to the approval of the
Government.
141. Currently, all taxes in India are subject to the
education cess, which is 3% of the total tax payable. With
effect from assessment year 2009-10, Secondary and Higher
Secondary Education Cess of 1% is applicable on the subtotal
of taxable income. The proceeds of the cess are directed to a
separate non lapsable fund called Prarambhik Shiksha Kosh
(PSK), setup by Government of India, to exclusively cater to
the elementary education in India. This fund is under the
control of the Ministry of Human Resource and Development
(MoHRD) and is typically utilized for its flagship programmes
Sarva Sikksha Abhiyaan (SSA) and the Mid-day Meal
Scheme (MDMS).
166
142. The statistics would indicate that out of the
12,50,775 schools imparting elementary education in the
country in 2007-08, 80.2% were all types of government
schools, 5.8 % private aided schools and 13.1% private
unaided schools. Almost 87.2% of the schools are located in
the rural areas. In the rural areas the proportion of private
unaided schools is only 9.3% and that of aided schools is
4.7%. However, in the urban areas, the percentage of private
unaided and aided schools are as high as 38.6% and 13.4%
respectively.
143. Out of the total students enrolled in primary classes
in 2007-08 about 75.4, 6.7 and 17.8% are enrolled in
government, aided and unaided schools. The total number of
teachers working in these schools in 2007-08 was 56,34,589
of which 69.3, 10.4 and 20.7% are teaching in government,
aided and private schools, the average number of teachers
per school being 3.9, 8.3 and 6.7% respectively. The
statistics would indicate that the Government schools have
the highest percentage of teachers who are professionally
trained at 43.4%, followed by aided school (27.8%) and
unaided private schools (only 2.3%). However, the learning
167
achievements are higher in private schools compared to
Government schools. Going through the objects and reasons
of the Act, the private unaided educational institutions are
roped in not due to lack of sufficient number of schools run
by the appropriate Government, local authorities or aided
educational institutions, but basically on the principle of
social inclusiveness so as to provide satisfactory quality
education. Some of the unaided educational institutions
provide superior quality education, a fact conceded and it is a
constitutional obligation of the appropriate Government, local
authority and aided schools not only to provide free and
compulsory education, but also quality education.
144. Positive steps should be taken by the State
Governments and the Central Government to supervise and
monitor how the schools which are functioning and providing
quality education to the children function. Responsibility is
much more on the State, especially when the Statute is
against holding back or detaining any child from standard I
to VIII.
145. Mr. Murray N. Rothbard, an eminent educationist and
Professor in Economics, in his Book "Education: Free and
168
Compulsory" [1999, Ludurg von Mises Institute, Auburn,
Aliana] cautioned that progressive education may destroy the
independent thought in the child and a child has little chance
to develop his systematic reasoning powers in the study of
definite courses. The Book was written after evaluating the
experiences of various countries, which have followed free
and compulsory education for children for several years.
Prohibition of holding back in a class may, according to the
author, result that bright pupils are robbed of incentive or
opportunity to study and the dull ones are encouraged to
believe that success, in the form of grades, promotion etc.,
will come to them automatically. The author also questioned
that since the State began to control education, its evident
tendency has been more and more to act in such a manner
so as to promote repression and hindrance of education,
rather than the true development of the individual. Its
tendency has been for compulsion, for enforced equality at
the lowest level, for the watering down of the subject and
even the abandonment of all formal teaching, for the
inculcation of obedience to the State and to the "group,"
rather than the development of self-independence, for the
deprecation of intellectual subjects.
169
146. I am of the view that the opinions expressed by the
academicians like Rothbard command respect and cannot be
brushed aside as such because, much more than anything,
the State has got a constitutional responsibility to see that
our children are given quality education. Provisions of the
statute shall not remain a dead letter, remember we are
dealing with the lives of our children, a national asset, and
the future of the entire country depends upon their
upbringing. Our children in the future have to compete with
their counter-parts elsewhere in the world at each and every
level, both in curricular and extra-curricular fields. Quality
education and overall development of the child is of prime
importance upon which the entire future of our children and
the country rests.
147. The legislation, in its present form, has got many
drawbacks. During the course of discussion, the necessity
of constituting a proper Regulatory Body was also raised so
that it can effectively supervise and monitor the functioning
of these schools and also examine whether the children are
being provided with not only free and compulsory education,
but quality education. The Regulatory authority can also
170
plug the loopholes, take proper and steps for effective
implementation of the Act and can also redress the
grievances of the children.
148. Learned Attorney General for India has favoured the
setting up of an Adjudicatory/Regulatory Authority to
determine the question whether compliance with Section
12(1)(b) and Section 12(1)(c) will have an adverse impact on
the financial viability of the school, and if so, to suggest
remedies and to deal with issues like expulsion etc.
Learned Attorney General indicated the necessity of a
statutory amendment if the Regulatory/Adjudicatory body
has to be set up under the Act. Proper adjudication
mechanism may also pave the way for a successful and
effective public-private partnership for setting up educational
institutions of best quality so that our children will get
quality education. I am sure that the Government will give
serious attention to the above aspect of the matter which are
of prime importance since we are dealing with the future of
the children of this country.
PART VI
171
CONCLUSIONS
1. Article 21A casts an obligation on the State to provide
free and compulsory education to children of the age of
6 to 14 years and not on unaided non-minority and
minority educational institutions.
2. Rights of children to free and compulsory education
guaranteed under Article 21A and RTE Act can be
enforced against the schools defined under Section 2(n)
of the Act, except unaided minority and non-minority
schools not receiving any kind of aid or grants to meet
their expenses from the appropriate governments or
local authorities.
3. Section 12(1)(c) is read down so far as unaided non-
minority and minority educational institutions are
concerned, holding that it can be given effect to only on
the principles of voluntariness, autonomy and
consensus and not on compulsion or threat of non-
recognition or non-affiliation.
4. No distinction or difference can be drawn between
unaided minority and non-minority schools with regard
172
to appropriation of quota by the State or its reservation
policy under Section 12(1)(c) of the Act. Such an
appropriation of seats can also not be held to be a
regulatory measure in the interest of the minority within
the meaning of Article 30(1) or a reasonable restriction
within the meaning of Article 19(6) of the Constitution.
5. The Appropriate Government and local authority have to
establish neighbourhood schools as provided in Section
6 read with Sections 8 and 9, within the time limit
prescribed in the Statute.
6. Duty imposed on parents or guardians under Section
10 is directory in nature and it is open to them to admit
their children in the schools of their choice, not
invariably in the neighbourhood schools, subject to
availability of seats and meeting their own expenses.
7. Sections 4, 10, 14, 15 and 16 are held to be directory in
their content and application. The concerned
authorities shall exercise such powers in consonance
with the directions/guidelines laid down by the Central
Government in that behalf.
173
8. The provisions of Section 21 of the Act, as provided,
would not be applicable to the schools covered under
sub-Section (iv) of clause (n) of Section 2. They shall
also not be applicable to minority institutions, whether
aided or unaided.
9. In exercise of the powers conferred upon the
appropriate Government under Section 38 of the RTE
Act, the Government shall frame rules for carrying out
the purposes of this Act and in particular, the matters
stated under sub-Section (2) of Section 38 of the RTE
Act.
10. The directions, guidelines and rules shall be framed by
the Central Government, appropriate Government
and/or such other competent authority under the
provisions of the RTE Act, as expeditiously as possible
and, in any case, not later than six months from the
date of pronouncement of this judgment.
11. All the State Governments which have not constituted
the State Advisory Council in terms of Section 34 of the
RTE Act shall so constitute the Council within three
months from today. The Council so constituted shall
174
undertake its requisite functions in accordance with the
provisions of Section 34 of the Act and advise the
Government in terms of clauses (6), (7) and (8) of this
order immediately thereafter.
12. Central Government and State Governments may set
up a proper Regulatory Authority for supervision and
effective functioning of the Act and its implementation.
13. Madrasas, Vedic Pathshalas etc. which predominantly
provide religious instructions and do not provide for
secular education stand outside the purview of the Act.
149. The Writ Petitions are disposed of as above. This
Judgment would have prospective operation and would apply
from the next academic year 2012-13 onwards. However,
admissions already granted would not be disturbed. We
record our deep appreciation for the valuable assistance
rendered by the counsel appearing for the both sides.
.......................................J.
(K. S. RADHAKRISHNAN)
New Delhi;
April 12, 2012
175
ITEM NO.1A COURT NO.1 SECTIONS PIL & X
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
WRIT PETITION (CIVIL) NO.95 OF 2010
SOCIETY FOR UN-AIDED P.SCHOOL OF RAJ. Petitioner(s)
VERSUS
U.O.I & ANR. Respondent(s)
With Writ Petition (C) No.98 of 2010
Writ Petition (C) No.126 of 2010
Writ Petition (C) No.137 of 2010
Writ Petition (C) No.228 of 2010
Writ Petition (C) No.269 of 2010
Writ Petition (C) No.310 of 2010
Writ Petition (C) No.364 of 2010
Writ Petition (C) No.384 of 2010
W.P. (C) No.22 of 2011
W.P. (C) No.24 of 2011
W.P. (C) No.21 of 2011
W.P. (C) No.47 of 2011
W.P. (C) No.59 of 2011
W.P. (C) No.50 of 2011
W.P. (C) No.83 of 2011
W.P. (C) No.88 of 2011
W.P. (C) No.99 of 2011
W.P. (C) No.102 of 2011
W.P. (C) No.104 of 2011
W.P. (C) No.86 of 2011
W.P. (C) No.101 of 2011
W.P. (C) No.115 of 2011
W.P. (C) No.154 of 2011
W.P. (C) No.126 of 2011
W.P. (C) No.118 of 2011
W.P. (C) No.186 of 2011
W.P. (C) No.148 of 2011
W.P. (C) No.176 of 2011
W.P. (C) No.205 of 2011
W.P. (C) No.238 of 2011
W.P. (C) No.239 of 2011
Date: 12/04/2012 These Matters were called on for Judgement
today.
...2/-
176
- 2 -
For Petitioner(s) Dr. Rajeev Dhavan,Sr.Adv.
In WP 95/10,98/10, Ms. Shobha,Adv.
126/10,137/10 & Ms. Bijoylakshmi Das,Adv.
228/10: Ms. Hema Shekhawat,Adv.
Ms. Indira Ramesh,Adv.
Mr. Raghav Shankar,Adv.
Mr. Vedanta Kumar,Adv.
Mr. Abeer Kumar,Adv.
Mr. Amit Mittal,Adv.
In WP 269/10 Mr. T.R. Andhyarujina,Sr.Adv.
Mr. Romy Chacko,Adv.
Mr. Ambar Qamaruddin,Adv.
In WP 310/10 & Mr. Vikash Singh,Sr.Adv.
59/2011: Mr. Pukhrambam Ramesh Kumar,Adv.
Ms. Shobana Masters,Adv.
Mr. Rahul Dhawan,Adv.
Mr. Vishesh Issar,Adv.
Mr. Basavaraj,Adv.
Mr. Akshay Arora,Adv.
In WP 364/10 Mr. P.I. Jose,Adv.
Mr. Anupam Mishra,Adv.
Mr. B.K. Mishra,Adv.
Mr. Vivek Kandari,Adv.
In WP 384/10 Mr. Achintya Dvivedi,Adv.
Mr. Neeraj Shekhar,Adv.
In WP 21/11 Mr. Anupam Lal Das,Adv.
Mr. Arpit Gupta,Adv.
In WP 22/11 Ms. Madhvi Divan,Adv.
Mr. Sanjeev K. Kapoor,Adv.
Mr. Nitin Massey,Adv.
Ms. Saman Ahsan,Adv.
for M/s. Khaitan and Co.,Advs.
In WP 24/11 Dr. Rajiv Dhawan,Adv.
Mr. Sushil D. Salwan,Adv.
Mr. Vedanta Varma,Adv.
Mr. Abeer Kumar,Adv.
for M/s. Karanjawala and Co.,Advs.
...3/-
177
- 3 -
In WP 47/11 Mr. Naveen R. Nath,Adv.
Mr. Darpan K.M.,Adv.
Ms. Lalit Mohini Bhat,Adv.
Ms. Amrita Sharma,Adv.
In WP 50/11: Mr. T.R. Andhyarujina,Sr.Adv.
Mr. Ambar Qamaruddin,Adv.
Mr. Romy Chacko,Adv.
In WP 83/11: Mr. Vinay Navare,Adv.
Mr. Keshav Ranjan,Adv.
Mr. Abha R. Sharma,Adv.
In WP 88/11: Mr. Vijay Kumar,Adv.
Mr. Pankaj Kumar,Adv.
Mr. Vishwajit Singh,Adv.
In WP 99/11: Mr. P.D. Gupta,Adv.
Mr. Kamal Gupta,Adv.
Mr. Gagan Gupta,Adv.
In WP 102/11: Mr. Sachin J. Patil,Adv.
Ms. Chandan Ramamurthi,Adv.
In WP 86/11 & Mr. Soumya Chakraborty,Adv.
WP 101/2011: Mr. K.K. Jairpuriar,Adv.
In WP 148/2011: Mr. Anuj Puri,Adv.
Mr. Kunal Verma,Adv.
In WP 104/11: Mr. K. Pararasan,Sr.Adv.
Mr. V. Balaji,Adv.
Ms. Aarthi Rajan,Adv.
Mr. Zoheb Hossain,Adv.
Mr. Rakesh K. Sharma,Adv.
Mr. D.S. Mahra,Adv.
Mr. Satish Parasaran,Adv.
In WP 115/2011: Mr. Shekhar Naphade,Sr.Adv.
Mr. C. Rshmikant,Adv.
Mr. Gaurav Joshi8,Adv.
Mr. Mahesh Agarwal,Adv.
Mr. Rishi Agarwal,Adv.
Mr. E.C. Agrawala,Adv.
Mr. Piyush Raheja,Adv.
Ms. Radhika Gautam,Adv.
Mr. Ankit Shah,Adv.
...4/-
178
- 4 -
In WP 118/2011: Mr. K. Parasaran,Sr.Adv.
Mr. R. Balasubramanian,Sr.Adv.
Mr. V. Balaji,Adv.
Mr. A. Subba Rao,Adv.
Mr. Narendra Kumar,Adv.
In WP 154/2011 Mr. D.K. Pandey,Adv.
Mr. Amit Pawan,Adv.
In WP 126/2011 Mr. B.D. Das,Adv.
Mr. Manoj V. George,Adv.
Ms. Shilpam George,Adv.
Mr. N. Neyyappam,Adv.
Mr. Rauf Rahim,Adv.
In WP 176/2011: Mr. Shekhar Naphade,Sr.Adv.
Mr. P. Ramesh Kumar,Adv.
Mr. Rahul Dhawan,Adv.
Mr. Vishesh Issar,Adv,.
Ms. Shobana Masters,Adv.
Mr. Anant Bhushan,Adv.
In WP 205/2011: Mr. R. Balasubramanian,Sr.Adv.
Mr. V. Balaji,Adv.
Mr. Xavier Arulraj,Adv.
Mr. C. Kannan,Adv.
Mr. Rakesh K. Sharma,Adv.
In WP 186/2011: Mr. B.D. Das,Adv.
Mr. Manoj V. George,Adv.
Mr. Aniruddha P. Mayee,Adv.
In WP 238/2011 & Mr. S. Ravi Shankar,Adv.
WP 239/2011: Mr. R. Yamunah Nachiar,Adv.
Mr. Sharath,Adv.
For Impleadment: Mr. Vikramjit Banerjee,Adv.
Ms. Shally Bhasin Maheshwari,Adv.
Mr. Rishi Maheshwari,Adv.
Dr. M.P. Raju,Adv.
Dr. Ashwani Bhardwaj,Adv.
Ms. Prabha Swami,Adv.
...5/-
179
- 5 -
For Intervenor(s): Mr. Shekhar Naphade,Sr.Adv.
Mr. C. Rashmikant,Adv.
Mr. Gaurav Joshi,Adv.
Mr. Mahesh Agarwal,Adv.
Mr. Rishi Agarwal,Adv.
Mr. E.C. Agrawala,Adv.
Mr. Piyush Raheja,Adv.
Ms. Radhika Gautam,Adv.
Mr. Ankit Shah,Adv.
I.A. No.7: Ms. Menaka Guruswamy,Adv.
Mr. Bipin Aspatwar,Adv.
Mr. Mohit Kumar Shah,Adv.
Mr. Huzefa Ahmadi,Adv.
Mr. Pradhuman Gohil,Adv.
Mr. Vikas Singh,Adv.
Mr. S. Hari Haran,Adv.
Ms. Charu Mathur,Adv.
I.A. No.14: Dr. Rajeev Dhavan,Sr.Adv.
Mr. Nikhil Nayyar,Adv.
Mr. T.V.S. Raghavendra Sreyas,Adv.
In I.A. No.15: Mr. Divya Jyoti Jaipuriar,Adv.
Ms. Jyoti Mendiratta,Adv.
Ms. Puja Sharma,Adv.
Mr. Amar Dave,Adv.
Ms. Garima Parshad,Adv.
Mr. K. Gautham,Adv.
Ms. Radhika Gautam,Adv.
Mr. E.C. Agrawala,Adv.
Mr. Aneesh Kumar Gupta,Adv.
Mr. Gopal Sankaranarayanan,Adv.
Mr. Rohit Bhat,Adv.
Mr. Senthil Jagadeesan,Adv.
Mr. Sanjay Kumar Visen,Adv.
Mr. K.N. Mishra,Adv.
Mr. Raman Kumar Srivastava,Adv.
Mr. Ashish Wad,Adv.
M/s. J.S. Wad and Co.,Advs.
...6/-
180
- 6 -
For Respondent(s) Mr. Goolam E. Vahanvati,AG.
Ms. Indira Jaising,ASG.
Mr. Rohit Sharma,Adv.
Mr. Anoopam N. Prasad,Adv.
Mr. Nishanth Patil,Adv.
Ms. Naila Jung,Adv.
Mr. Anandh Kannan,Adv.
Ms. Supriya Jain,Adv.
Mr. S.S. Rawat,Adv.
Ms. Rekha Pandey,Adv.
Mr. I.J. Singh,Adv.
Mr. D.S. Mahra,Adv.
For Maharashtra: Mr. Sanjay V. Kharde,Adv.
Ms. Asha G. Nair,Adv.
For Bihar: Mr. Gopal Singh,Adv.
Mr. Manish Kumar,Adv.
For Puducherry: Mr. V.G. Pragasam,Adv.
For Tamil Nadu: Mr. S. Thananjayan,Adv.
For Andhra Pradesh: Mr. G.N. Reddy,Adv.
Mr. C. Kannan,Adv.
State of Haryana: Mr. Manjit Singh,Addl.Adv.Genl.
Mr. Tarjit Singh,Adv.
Mr. Kamal Mohan Gupta,Adv.
Hon'ble the Chief Justice pronounced His
Lordship's judgement on behalf of Himself and
Hon'ble Mr. Justice Swatanter Kumar disposing of
writ petitions with no order as to costs.
Hon'ble Mr. Justice K.S. Radhakrishnan
pronounced His Lordship's judgement disposing of
writ petitions.
Conclusion (according to majority):
"20. Accordingly, we hold that the Right of
Children to Free and Compulsory Education Act, 2009
is constitutionally valid and shall apply to the
following:
...7/-
181
- 7 -
(i) a school established, owned or controlled
by the appropriate Government or a local
authority;
(ii) an aided school including aided minority
school(s) receiving aid or grants to meet
whole or part of its expenses from the
appropriate Government or the local
authority;
(iii) a school belonging to specified category;
and
(iv) an unaided non-minority school not
receiving any kind of aid or grants to meet
its expenses from the appropriate
Government or the local authority.
However, the said 2009 Act and in particular
Sections 12(1)(c) and 18(3) infringes the
fundamental freedom guaranteed to unaided minority
schools under Article 30(1) and, consequently,
applying the R.M.D. Chamarbaugwalla v. Union of
India [1957 SCR 930] principle of severability,
the said 2009 Act shall not apply to such schools.
21. This judgment will operate from today. In
other words, this will apply from the academic
year 2012-13. However, admissions given by
unaided minority schools prior to the
pronouncement of this judgment shall not be
reopened.
22. Subject to what is stated above, the writ
petitions are disposed of with no order as to
costs."
Interlocutory applications are also disposed
of.
[ T.I. Rajput ] [ Madhu Saxena ]
A.R.-cum-P.S. Assistant Registrar
[Two Signed Reportable Judgements are placed on the file]
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO. 95 OF 2010
Society for Un-aided Private Schools
of Rajasthan ... Petitioner(s)
versus
U.O.I. & Anr. ...Respondent(s)
with Writ Petition (C) Nos. 98/2010, 126/2010, 137/2010,
228/2010, 269/2010, 310/2010, 364/2010, 384/2010,
21/2011, 22/2011, 24/2011, 47/2011, 50/2011, 59/2011,
83/2011, 86/2011, 88/2011, 99/2011, 101/2011,
102/2011, 104/2011, 115/2011, 118/2011, 126/2011,
148/2011, 154/2011, 176/2011, 186/2011, 205/2011,
238/11 and 239/11.
JUDGMENT
S. H. KAPADIA, CJI
1. We have had the benefit of carefully considering the
erudite judgment delivered by our esteemed and learned
Brother Radhakrishnan, J. Regretfully, we find ourselves in
the unenviable position of having to disagree with the views
expressed therein concerning the non-applicability of the
Right of Children to Free and Compulsory Education Act,
2009 (for short "the 2009 Act") to the unaided non-minority
2
schools.
2. The judgment of Brother Radhakrishnan, J. fully sets
out the various provisions of the 2009 Act as well as the
issues which arise for determination, the core issue concerns
the constitutional validity of the 2009 Act.
Introduction
3. To say that "a thing is constitutional is not to say that it
is desirable" [see Dennis v. United States, (1950) 341 US
494].
4. A fundamental principle for the interpretation of a
written Constitution has been spelt out in R. v. Burah
[reported in (1878) 5 I.A. 178] which reads as under:
"The established Courts of Justice, when a question
arises whether the prescribed limits have been
exceeded, must of necessity determine that question;
and the only way in which they can properly do so, is
by looking to the terms of the Constitution by which,
affirmatively, the legislative powers were created, and
by which, negatively, they are restricted. If what has
been done is legislation, within the general scope of
the affirmative words which give the power, and if it
violates no express condition or restriction by which
that power is limited it is not for any Court to inquire
further, or to enlarge constructively those conditions
and restrictions".
5. Education is a process which engages many different
actors : the one who provides education (the teacher, the
owner of an educational institution, the parents), the one who
3
receives education (the child, the pupil) and the one who is
legally responsible for the one who receives education (the
parents, the legal guardians, society and the State). These
actors influence the right to education. The 2009 Act makes
the Right of Children to Free and Compulsory Education
justiciable. The 2009 Act envisages that each child must
have access to a neighbourhood school. The 2009 Act has
been enacted keeping in mind the crucial role of Universal
Elementary Education for strengthening the social fabric of
democracy through provision of equal opportunities to all.
The Directive Principles of State Policy enumerated in our
Constitution lay down that the State shall provide free and
compulsory education to all children upto the age of 14 years.
The said Act provides for right (entitlement) of children to free
and compulsory admission, attendance and completion of
elementary education in a neighbourhood school. The word
"Free" in the long title to the 2009 Act stands for removal by
the State of any financial barrier that prevents a child from
completing 8 years of schooling. The word "Compulsory" in
that title stands for compulsion on the State and the parental
duty to send children to school. To protect and give effect to
this right of the child to education as enshrined in Article 21
4
and Article 21A of the Constitution, the Parliament has
enacted the 2009 Act.
6. The 2009 Act received the assent of the President on
26.8.2009. It came into force w.e.f. 1.4.2010. The provisions
of this Act are intended not only to guarantee right to free and
compulsory education to children, but it also envisages
imparting of quality education by providing required
infrastructure and compliance of specified norms and
standards in the schools. The Preamble states that the 2009
Act stands enacted inter alia to provide for free and
compulsory education to all children of the age of 6 to 14
years. The said Act has been enacted to give effect to Article
21A of the Constitution.
Scope of the 2009 Act
7. Section 3(1) of the 2009 Act provides that every child of
the age of 6 to 14 years shall have a right to free and
compulsory education in a neighbourhood school till
completion of elementary education. Section 3(2) inter alia
provides that no child shall be liable to pay any kind of fee or
charges or expenses which may prevent him or her from
pursuing and completing the elementary education. An
educational institution is charitable. Advancement of
5
education is a recognised head of charity. Section 3(2) has
been enacted with the object of removing financial barrier
which prevents a child from accessing education. The other
purpose of enacting Section 3(2) is to prevent educational
institutions charging capitation fees resulting in creation of a
financial barrier which prevents a child from accessing or
exercising its right to education which is now provided for
vide Article 21A. Thus, sub-Section (2) provides that no child
shall be liable to pay any kind of fee or charges or expenses
which may prevent him or her from pursuing or completing
the elementary education. Section 4 inter alia provides for
special provision for children not admitted to or who have not
completed elementary education. Section 5 deals with the
situation where there is no provision for completion of
elementary education, then, in such an event, a child shall
have a right to seek transfer to any other school, excluding
the school specified in sub-clauses (iii) and (iv) of clause (n) of
Section 2, for completing his or her elementary education.
Chapter III provides for duties of appropriate government,
local authority and parents. Section 6 imposes an obligation
on the appropriate government and local authority to
establish a school within such areas or limits of
6
neighbourhood, as may be prescribed, where it is not so
established, within 3 years from the commencement of the
2009 Act. The emphasis is on providing "neighbourhood
school" facility to the children at the Gram Panchayat level.
Chapter IV of the 2009 Act deals with responsibilities of
schools and teachers. Section 12 (1)(c) read with Section 2(n)
(iii) and (iv) mandates that every recognised school imparting
elementary education, even if it is an unaided school, not
receiving any kind of aid or grant to meet its expenses from
the appropriate government or the local authority, is obliged
to admit in Class I, to the extent of at least 25% of the
strength of that class, children belonging to weaker section
and disadvantaged group in the neighbourhood and provide
free and compulsory elementary education till its completion.
As per the proviso, if the School is imparting pre-school
education, the same regime would apply. By virtue of Section
12(2) the unaided school which has not received any land,
building, equipment or other facilities, either free of cost or at
concessional rate, would be entitled for reimbursement of the
expenditure 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
7
may be prescribed. Such reimbursement shall not exceed per
child expenditure incurred by a school established, owned or
controlled by the appropriate government or a local authority.
Section 13 envisages that no school or person shall, while
admitting a child, collect any capitation fee and subject the
child or his or her parents to any screening procedure.
Section 15 mandates that a child shall be admitted in a
school at the commencement of the academic year or within
the prescribed extended period. Sections 16 and 17 provide
for prohibition of holding back and expulsion and of physical
punishment or mental harassment to a child. Section 18
postulates that after the commencement of the 2009 Act no
school, other than the excepted category, can be established
or can function without obtaining a certificate of recognition
from the appropriate authority. The appropriate authority
shall be obliged to issue the certificate of recognition within
the prescribed period specifying the conditions there for, if the
school fulfills the norms and standards specified under
Sections 19 and 25 read with the Schedule to the 2009 Act.
In the event of contravention of the conditions of recognition,
the prescribed authority can withdraw recognition after giving
an opportunity of being heard to such school. The order of
8
withdrawal of recognition should provide a direction to
transfer the children studying in the de-recognised school to
be admitted to the specified neighbourhood school. Upon
withdrawal of recognition, the de-recognised school cannot
continue to function, failing which, is liable to pay fine as per
Section 19(5). If any person establishes or runs a school
without obtaining certificate of recognition, or continues to
run a school after withdrawal of the recognition, shall be
liable to pay fine as specified in Section 19(5). The norms and
standards for establishing or for grant of recognition to a
school are specified in Section 19 read with the Schedule to
the 2009 Act. All schools which are established before the
commencement of the 2009 Act in terms of Section 19(2) are
expected to comply with specified norms and standards
within 3 years from the date of such commencement. Failure
to do so would entail in de-recognition of such school.
Section 22 postulates that the School Management
Committee constituted under Section 21, shall prepare a
School Development Plan in the prescribed manner. Section
22(2) provides that the School Development Plan so prepared
shall be the basis for the grants to be made by the
appropriate government or local authority, as the case may
9
be. That plan, however, cannot have any impact on
consideration of application for grant of recognition for
establishing an unaided school. To ensure that teachers
should contribute in imparting quality education in the
school itself, Section 28 imposes total prohibition on them to
engage in private tuition or private teaching activities.
Chapter VI inter alia provides for protection of rights of
children. Section 32 thus provides that any person having
grievance relating to the right of child under the 2009 Act,
may make a written complaint to the local authority having
jurisdiction, who in turn is expected to decide it within three
months after affording a reasonable opportunity of being
heard to the parties concerned. In addition, in terms of
Section 31, the Commissions constituted under the
provisions of the Commissions for Protection of Child Rights
Act, 2005 can monitor the child's right to education, so as to
safeguard the right of the child upon receiving any complaint
in that behalf relating to free and compulsory education.
8. By virtue of the 2009 Act, all schools established prior to
the commencement of the said Act are thus obliged to fulfill
the norms and standards specified inter alia in Sections 25,
26 and the Schedule of that Act. [See Section 19(2)]. The
10
State is also expected to first weed out those schools which
are non-performing, or under-performing or non-compliance
schools and upon closure of such schools, the students and
the teaching and non-teaching staff thereof should be
transferred to the neighbourhood school. The provision is
meant not only to strengthen the latter school by adequate
number of students but to consolidate and to impart quality
education due to the addition of teaching staff. Needless to
observe, that if there is inadequate response to the
government funded school, it is but appropriate that either
the divisions thereof or the school itself be closed and the
students and staff of such schools be transferred to a
neighbourhood school by resorting to Section 18(3) of the
2009 Act. Only after taking such decisions could the School
Development Plan represent the correct position regarding
the need of government aided schools in every locality across
the State. Besides, it will ensure proper and meaningful
utilization of public funds. In absence of such exercise, the
end result would be that on account of existing non-
performing or under-performing or non-compliance schools,
the School Development Plan would not reckon that locality
for establishment of another school. In our view, even the
11
State Government(s), by resorting to the provision of the 2009
Act, must take opportunity to re-organise its financial outflow
at the micro level by weeding out the non-performing or
under-performing or non-compliance schools receiving grant-
in- aid, so as to ensure that only such government funded
schools, who fulfill the norms and standards, are allowed to
continue, to achieve the object of the 2009 Act of not only
providing free and compulsory education to the children in
the neighbourhood school but also to provide quality
education. Thus, there is a power in the 2009 Act coupled
with the duty of the State to ensure that only such
government funded schools, who fulfill the norms and
standards, are allowed to continue with the object of
providing free and compulsory education to the children in
the neighbourhood school.
Validity and applicability of the 2009 Act qua unaided
non-minority schools
9. To begin with, we need to understand the scope of
Article 21A. It provides that the State shall provide free and
compulsory education to all children of the age of 6 to 14
years in such manner as the State may, by law, determine.
Thus, under the said Article, the obligation is on the State to
12
provide free and compulsory education to all children of
specified age. However, under the said Article, the manner in
which the said obligation will be discharged by the State has
been left to the State to determine by law. Thus, the State
may decide to provide free and compulsory education to all
children of the specified age through its own schools or
through government aided schools or through unaided private
schools. The question is whether such a law transgresses
any constitutional limitation? In this connection, the first
and foremost principle we have to keep in mind is that what
is enjoined by the directive principles (in this case Articles 41,
45 and 46) must be upheld as a "reasonable restriction"
under Articles 19(2) to 19(6). As far back as 1952, in State of
Bihar v. Maharajadhiraja Sir Kameshwar Singh of
Darbhanga [(1952) SCR 889], this Court has illustrated how a
directive principle may guide the Court in determining crucial
questions on which the validity of an important enactment
may be hinged. Thus, when the courts are required to decide
whether the impugned law infringes a fundamental right, the
courts need to ask the question whether the impugned law
infringes a fundamental right within the limits justified by the
directive principles or whether it goes beyond them. For
13
example, the scope of the right of equality of opportunity in
matters relating to employment (Article 16) to any office in the
State appears more fully defined when read with the
obligation of the State to promote with special care the
economic and other interests of the weaker sections (Article
46). Similarly, our understanding of the right "to practice any
profession or occupation" [Article 19(1)(g)] is clarified when we
read along with that right the obligation of the State to see
that the health of the workers and the tender age of the
children are not abused (Article 39). Thus, we need to
interpret the fundamental rights in the light of the
directive principles. The above principles are very relevant
in this case because the very content of Article 21A comes
from reading of Articles 41, 45 and 46 and, more particularly,
from Article 45 (as it then stood before the Constitution
(Eighty sixth Amendment) Act, 2002). It has been urged
before us that Article 45, as it then stood, imposed obligation
on the State to provide for free and compulsory education for
all children until they complete the age of 14 years and that
the said obligation cannot be shifted or passed on to an
unaided school, as defined in Section 2(n)(iv) of the 2009 Act.
To answer the said contention, one needs to appreciate the
14
scope of Articles 21, 21A, 19(1)(g) and Articles 41, 45 and 46
of the Constitution. At the outset, it may be stated, that
fundamental rights have two aspects they act as fetter on
plenary legislative powers and, secondly, they provide
conditions for fuller development of our people including their
individual dignity. Right to live in Article 21 covers access to
education. But unaffordability defeats that access. It defeats
the State's endeavour to provide free and compulsory
education for all children of the specified age. To provide for
free and compulsory education in Article 45 is not the same
thing as to provide free and compulsory education. The word
"for" in Article 45 is a preposition. The word "education" was
read into Article 21 by the judgments of this Court. However,
Article 21 merely declared "education" to fall within the
contours of right to live. To provide for right to access
education, Article 21A was enacted to give effect to Article 45
of the Constitution. Under Article 21A, right is given to the
State to provide by law "free and compulsory education".
Article 21A contemplates making of a law by the State. Thus,
Article 21A contemplates right to education flowing from the
law to be made which is the 2009 Act, which is child centric
and not institution centric. Thus, as stated, Article 21A
15
provides that the State shall provide free and compulsory
education to all children of the specified age in such manner
as the State may, by law, determine. The manner in which
this obligation will be discharged by the State has been left to
the State to determine by law. The 2009 Act is thus enacted
in terms of Article 21A. It has been enacted primarily to
remove all barriers (including financial barriers) which impede
access to education. One more aspect needs to be
highlighted. It is not in dispute that education is a recognised
head of "charity" [see T.M.A. Pai Foundation v. State of
Karnataka (2002) 8 SCC 481]. Therefore, even according to
T.M.A. Pai Foundation, if an educational institution goes
beyond "charity" into commercialization, it would not be
entitled to protection of Article 19(1)(g). This is where the
paradox comes in. If education is an activity which is
charitable, could the unaided non-minority educational
institution contend that the intake of 25% children belonging
to weaker section and disadvantaged group only in class I as
provided for in Section 12(1)(c) would constitute violation of
Article 19(1)(g)? Would such a provision not be saved by the
principle of reasonable restriction imposed in the interest of
the general public in Article 19(6) of the Constitution?
16
10. Coming to the principle of reasonableness, it may be
stated, that though subject-wise, Article 21A deals with
access to education as against right to establish and
administer educational institution in Article 19(1)(g), it is now
not open to anyone to contend that the law relating to right to
access education within Article 21A does not have to meet the
requirement of Article 14 or Article 19 for its reasonableness.
[See Khudiram Das v. State of West Bengal reported in
(1975) 2 SCR 832] After the judgment of this Court in
Maneka Gandhi v. Union of India [(1978) 1 SCC 248], the
principle of reasonableness is applicable to Article 14 of the
Constitution. As held by this Court in Glanrock Estate
Private Limited v. State of Tamil Nadu [(2010) 10 SCC 96],
Article 21 (right to life) remains the core of the Constitution
around which Article 14, Article 19 and others revolve. In
other words, all other fundamental rights in Part III would be
dependent upon right to life in Article 21 as interpreted by
this Court to include right to live with dignity, right to
education, etc. At the end of the day, whether one adopts the
pith and substance test or the nature and character of the
legislation test or the effect test, one finds that all these tests
17
have evolved as rules of interpretation only as a matter of
reasonableness. They help us to correlate Article 21 with
Article 14, Article 19 and, so on. Applying the above principle
of reasonableness, though the right to access education falls
as a subject matter under Article 21A and though to
implement the said Article, Parliament has enacted the 2009
Act, one has to judge the validity of the said Act in the light of
the principle of reasonableness in Article 19(6), particularly,
when in T.M.A. Pai Foundation and in P.A. Inamdar v.
State of Maharashtra [(2005) 6 SCC 537], it has been held
that right to establish and administer an educational
institution falls under Article 19(1)(g) of the Constitution.
Thus, the question which arises for determination is
whether Section 12(1)(c) of the 2009 Act is a reasonable
restriction on the non-minority's right to establish and
administer an unaided educational institution under Article
19(6)? Article 21 says that "no person shall be deprived of
his life...except according to the procedure established by law"
whereas Article 19(1)(g) under the chapter "right to freedom"
says that all citizens have the right to practice any profession
or to carry on any occupation, trade or business which
freedom is not absolute but which could be subjected to
18
social control under Article 19(6) in the interest of general
public. By judicial decisions, right to education has been
read into right to life in Article 21. A child who is denied right
to access education is not only deprived of his right to live
with dignity, he is also deprived of his right to freedom of
speech and expression enshrined in Article 19(1)(a). The
2009 Act seeks to remove all those barriers including
financial and psychological barriers which a child belonging
to the weaker section and disadvantaged group has to face
while seeking admission. It is true that, as held in T.M.A. Pai
Foundation as well as P.A. Inamdar, the right to establish
and administer an educational institution is a fundamental
right, as long as the activity remains charitable under Article
19(1)(g), however, in the said two decisions the correlation
between Articles 21 and 21A, on the one hand, and Article
19(1)(g), on the other, was not under consideration. Further,
the content of Article 21A flows from Article 45 (as it then
stood). The 2009 Act has been enacted to give effect to Article
21A. For the above reasons, since the Article 19(1)(g) right is
not an absolute right as Article 30(1), the 2009 Act cannot be
termed as unreasonable. To put an obligation on the unaided
non-minority school to admit 25% children in class I under
19
Section 12(1)(c) cannot be termed as an unreasonable
restriction. Such a law cannot be said to transgress any
constitutional limitation. The object of the 2009 Act is to
remove the barriers faced by a child who seeks admission to
class I and not to restrict the freedom under Article 19(1)(g).
The next question that arises for determination is whether
Section 12(1)(c) of the 2009 Act impedes the right of the non-
minority to establish and administer an unaided educational
institution? At the outset, it may be noted that Article 19(6)
is a saving and enabling provision in the Constitution as it
empowers the Parliament to make a law imposing reasonable
restriction on the Article 19(1)(g) right to establish and
administer an educational institution while Article 21A
empowers the Parliament to enact a law as to the manner in
which the State will discharge its obligation to provide for free
and compulsory education. If the Parliament enacts the law,
pursuant to Article 21A, enabling the State to access the
network (including infrastructure) of schools including
unaided non-minority schools would such a law be said to be
unconstitutional, not saved under Article 19(6)? Answer is in
the negative. Firstly, it must be noted that the expansive
provisions of the 2009 Act are intended not only to guarantee
20
the right to free and compulsory education to children, but to
set up an intrinsic regime of providing right to education to all
children by providing the required infrastructure and
compliance of norms and standards. Secondly, unlike other
fundamental rights, the right to education places a burden
not only on the State, but also on the parent/ guardian of
every child [Article 51A(k)]. The Constitution directs both
burdens to achieve one end: the compulsory education of
children free from the barriers of cost, parental obstruction or
State inaction. Thus, Articles 21A and 51A(k) balance the
relative burdens on the parents and the State. Thus, the
right to education envisages a reciprocal agreement between
the State and the parents and it places an affirmative burden
on all stakeholders in our civil society. Thirdly, right to
establish an educational institution has now been recognized
as a fundamental right within the meaning of Article 19(1)(g).
This view is enforced by the opinion of this Court in T.M.A.
Pai Foundation and P.A. Inamdar that all citizens have a
right to establish and administer educational institutions
under Articles 19(1)(g) and 26 but that right is subject to the
provisions of Articles 19(6) and 26(a). The constitutional
obligation of the State to provide for free and compulsory
21
education to the specified category of children is co-extensive
with the fundamental right guaranteed under Article 19(1)(g)
to establish an educational institution. Lastly, the
fundamental right to establish an educational institution
cannot be confused with the right to ask for recognition or
affiliation. The exercise of a fundamental right to establish
and administer an educational institution can be controlled in
a number of ways. Indeed, matters relating to the right to
grant of recognition and/ or affiliation are covered within the
realm of statutory right, which, however, will have to satisfy
the test of reasonable restrictions [see Article 19(6)]. Thus,
from the scheme of Article 21A and the 2009 Act, it is clear
that the primary obligation is of the State to provide for free
and compulsory education to children between the age of 6 to
14 years and, particularly, to children who are likely to be
prevented from pursuing and completing the elementary
education due to inability to afford fees or charges.
Correspondingly, every citizen has a right to establish and
administer educational institution under Article 19(1)(g) so
long as the activity remains charitable. Such an activity
undertaken by the private institutions supplements the
primary obligation of the State. Thus, the State can regulate
22
by law the activities of the private institutions by imposing
reasonable restrictions under Article 19(6). The 2009 Act not
only encompasses the aspects of right of children to free and
compulsory education but to carry out the provisions of the
2009 Act, it also deals with the matters pertaining to
establishment of school (s) as also grant of recognition (see
section 18). Thus, after the commencement of the 2009 Act,
the private management intending to establish the school has
to make an application to the appropriate authority and till
the certificate is granted by that authority, it cannot establish
or run the school. The matters relevant for the grant of
recognition are also provided for in Sections 19, 25 read with
the Schedule to the Act. Thus, after the commencement of
the 2009 Act, by virtue of Section 12(1)(c) read with Section
2(n)(iv), the State, while granting recognition to the private
unaided non-minority school, may specify permissible
percentage of the seats to be earmarked for children who may
not be in a position to pay their fees or charges. In T.M.A.
Pai Foundation, this Court vide para 53 has observed that
the State while prescribing qualifications for admission in a
private unaided institution may provide for condition of giving
admission to small percentage of students belonging to
23
weaker sections of the society by giving them freeships, if not
granted by the government. Applying the said law, such a
condition in Section 12(1)(c) imposed while granting
recognition to the private unaided non-minority school cannot
be termed as unreasonable. Such a condition would come
within the principle of reasonableness in Article 19(6).
Indeed, by virtue of Section 12(2) read with Section 2(n)(iv),
private unaided school would be entitled to be reimbursed
with the expenditure incurred by it in providing free and
compulsory education to children belonging to the above
category to the extent of per child expenditure incurred by the
State in a school specified in Section 2(n)(i) or the actual
amount charged from the child, whichever is less. Such a
restriction is in the interest of the general public. It is also a
reasonable restriction. Such measures address two aspects,
viz., upholding the fundamental right of the private
management to establish an unaided educational institution
of their choice and, at the same time, securing the interests of
the children in the locality, in particular, those who may not
be able to pursue education due to inability to pay fees or
charges of the private unaided schools. We also do not see
any merit in the contention that Section 12(1)(c) violates
24
Article 14. As stated, Section 12(1)(c) inter alia provides for
admission to class I, to the extent of 25% of the strength of
the class, of the children belonging to weaker section and
disadvantaged group in the neighbourhood and provide free
and compulsory elementary education to them till its
completion. The emphasis is on "free and compulsory
education". Earmarking of seats for children belonging to a
specified category who face financial barrier in the matter of
accessing education satisfies the test of classification in
Article 14. Further, Section 12(1)(c) provides for level playing
field in the matter of right to education to children who are
prevented from accessing education because they do not have
the means or their parents do not have the means to pay for
their fees. As stated above, education is an activity in which
we have several participants. There are number of
stakeholders including those who want to establish and
administer educational institutions as these supplement the
primary obligation of the State to provide for free and
compulsory education to the specified category of children.
Hence, Section 12(1)(c) also satisfies the test of
reasonableness, apart from the test of classification in Article
14.
25
11. The last question which we have to answer under this
head is whether Section 12(1)(c) runs counter to the
judgments of this Court in T.M.A. Pai Foundation and P.A.
Inamdar or principles laid down therein? According to the
petitioners, T.M.A. Pai Foundation defines various rights
and has held vide para 50 that right to establish and
administer broadly comprises the following:- (i) right to admit
students (ii) right to set up a reasonable fee structure etc. (the
rest are not important for discussion under this Head). That,
T.M.A. Pai Foundation lays down the essence and structure
of rights in Article 19(1)(g) insofar as they relate to
educational institutions in compliance with (a) the Charity
Principle (b) the Autonomy Principle (c) the Voluntariness
Principle (d) Anti-nationalisation (e) Co-optation Principle.
In support, reliance is placed by the petitioners on number of
paras from the above two judgments. At the outset, we may
reiterate that Article 21A of the Constitution provides that the
State shall provide free and compulsory education to all
children of the specified age in such manner as the State
may, by law, determine. Thus, the primary obligation to
provide free and compulsory education to all children of the
specified age is on the State. However, the manner in which
26
this obligation will be discharged by the State has been left to
the State to determine by law. The State may do so through
its own schools or through aided schools or through private
schools, so long as the law made in this regard does not
transgress any other constitutional limitation. This is because
Article 21A vests the power in the State to decide the manner
in which it will provide free and compulsory education to the
specified category of children. As stated, the 2009 Act has
been enacted pursuant to Article 21A. In this case, we are
concerned with the interplay of Article 21, Article 21A, on the
one hand, and the right to establish and administer
educational institution under Article 19(1)(g) read with Article
19(6). That was not the issue in T.M.A. Pai Foundation nor
in P.A. Inamdar. In this case, we are concerned with the
validity of Section 12(1)(c) of the 2009 Act. Hence, we are
concerned with the validity of the law enacted pursuant to
Article 21A placing restrictions on the right to establish and
administer educational institutions (including schools) and
not the validity of the Scheme evolved in Unni Krishnan, J.P.
v. State of Andhra Pradesh [(1993) 1 SCC 645]. The above
judgments in T.M.A. Pai Foundation and P.A. Inamdar were
not concerned with interpretation of Article 21A and the 2009
27
Act. It is true that the above two judgments have held that all
citizens have a right to establish and administer educational
institutions under Article 19(1)(g), however, the question as to
whether the provisions of the 2009 Act constituted a
restriction on that right and if so whether that restriction was
a reasonable restriction under Article 19(6) was not in issue.
Moreover, the controversy in T.M.A. Pai Foundation arose in
the light of the scheme framed in Unni Krishnan's case and
the judgment in P.A. Inamdar was almost a sequel to the
directions in Islamic Academy of Education v. State of
Karnataka [(2003) 6 SCC 697] in which the entire focus was
Institution centric and not child centric and that too in the
context of higher education and professional education where
the level of merit and excellence have to be given a different
weightage than the one we have to give in the case of
Universal Elementary Education for strengthening social
fabric of democracy through provision of equal opportunities
to all and for children of weaker section and disadvantaged
group who seek admission not to higher education or
professional courses but to Class I. In this connection, the
relevant paras from T.M.A. Pai Foundation make the
position clear. They are paras 37, 39, 40, 42, 45, 48, 49 and
28
50 (read together), 51, 53, 56, 58 - 61, 62, 67, 68, 70 etc.,
similarly, paras 26, 35, 104, 146 of P.A. Inamdar. We quote
the relevant para in support of what we have stated above:
T.M.A. Pai Foundation
Para 48 read with para 50
48. Private education is one of the most dynamic
and fastest-growing segments of post-secondary
education at the turn of the twenty-first century. A
combination of unprecedented demand for access to
higher education and the inability or unwillingness of
the Government to provide the necessary support
has brought private higher education to the forefront.
Private institutions, with a long history in many
countries, are expanding in scope and number, and
are becoming increasingly important in parts of the
world that relied almost entirely on the public sector.
50. The right to establish and administer broadly
comprises the following rights:
(a) to admit students;
(b) to set up a reasonable fee structure;
(c) to constitute a governing body;
(d) to appoint staff (teaching and non-teaching);
and
(e) to take action if there is dereliction of duty on
the part of any employees.
58. For admission into any professional
institution, merit must play an important role. While
it may not be normally possible to judge the merit of
the applicant who seeks admission into a school,
while seeking admission to a professional institution
and to become a competent professional, it is
necessary that meritorious candidates are not
unfairly treated or put at a disadvantage by
preferences shown to less meritorious but more
influential applicants. Excellence in professional
29
education would require that greater emphasis be
laid on the merit of a student seeking admission.
Appropriate regulations for this purpose may be
made keeping in view the other observations made in
this judgment in the context of admissions to
unaided institutions.
59. Merit is usually determined, for admission to
professional and higher education colleges, by either
the marks that the student obtains at the qualifying
examination or school-leaving certificate stage
followed by the interview, or by a common entrance
test conducted by the institution, or in the case of
professional colleges, by government agencies.
60. Education is taught at different levels, from
primary to professional. It is, therefore, obvious that
government regulations for all levels or types of
educational institutions cannot be identical; so also,
the extent of control or regulation could be greater
vis-a-vis aided institutions.
61. In the case of unaided private schools,
maximum autonomy has to be with the management
with regard to administration, including the right of
appointment, disciplinary powers, admission of
students and the fees to be charged. At the school
level, it is not possible to grant admissions on the
basis of merit. It is no secret that the examination
results at all levels of unaided private schools,
notwithstanding the stringent regulations of the
governmental authorities, are far superior to the
results of the government-maintained schools. There
is no compulsion on students to attend private
schools. The rush for admission is occasioned by the
standards maintained in such schools, and
recognition of the fact that State-run schools do not
provide the same standards of education. The State
says that it has no funds to establish institutions at
the same level of excellence as private schools. But
by curtailing the income of such private schools, it
disables those schools from affording the best
facilities because of a lack of funds. If this lowering of
standards from excellence to a level of mediocrity is
to be avoided, the State has to provide the difference
30
which, therefore, brings us back in a vicious circle to
the original problem viz. the lack of State funds. The
solution would appear to lie in the States not using
their scanty resources to prop up institutions that
are able to otherwise maintain themselves out of the
fees charged, but in improving the facilities and
infrastructure of State-run schools and in
subsidizing the fees payable by the students there. It
is in the interest of the general public that more good
quality schools are established; autonomy and non-
regulation of the school administration in the right of
appointment, admission of the students and the fee
to be charged will ensure that more such institutions
are established. The fear that if a private school is
allowed to charge fees commensurate with the fees
affordable, the degrees would be "purchasable" is an
unfounded one since the standards of education can
be and are controllable through the regulations
relating to recognition, affiliation and common final
examinations.
P.A. Inamdar
26. These matters have been directed to be placed
for hearing before a Bench of seven Judges under
orders of the Chief Justice of India pursuant to the
order dated 15-7-2004 in P.A. Inamdar v. State of
Maharashtra and order dated 29-7-2004 in
Pushpagiri Medical Society v. State of Kerala. The
aggrieved persons before us are again classifiable in
one class, that is, unaided minority and non-
minority institutions imparting professional
education. The issues arising for decision before us
are only three:
(i) the fixation of "quota" of
admissions/students in respect of unaided
professional institutions;
(ii) the holding of examinations for admissions
to such colleges, that is, who will hold the
entrance tests; and
(iii) the fee structure.
104. Article 30(1) speaks of "educational
31
institutions" generally and so does Article 29(2).
These articles do not draw any distinction between
an educational institution dispensing theological
education or professional or non-professional
education. However, the terrain of thought as has
developed through successive judicial
pronouncements culminating in Pai Foundation is
that looking at the concept of education, in the
backdrop of the constitutional provisions,
professional educational institutions constitute a
class by themselves as distinguished from
educational institutions imparting non-professional
education. It is not necessary for us to go deep into
this aspect of the issue posed before us inasmuch as
Pai Foundation has clarified that merit and
excellence assume special significance in the context
of professional studies. Though merit and excellence
are not anathema to non-professional education, yet
at that level and due to the nature of education
which is more general, the need for merit and
excellence therein is not of the degree as is called for
in the context of professional education.
146. Non-minority unaided institutions can also
be subjected to similar restrictions which are found
reasonable and in the interest of the student
community. Professional education should be made
accessible on the criterion of merit and on non-
exploitative terms to all eligible students on a
uniform basis. Minorities or non-minorities, in
exercise of their educational rights in the field of
professional education have an obligation and a duty
to maintain requisite standards of professional
education by giving admissions based on merit and
making education equally accessible to eligible
students through a fair and transparent admission
procedure and based on a reasonable fee structure.
12. P.A. Inamdar holds that right to establish and
administer educational institution falls in Article 19(1)(g). It
32
further holds that seat-sharing, reservation of seats, fixing of
quotas, fee fixation, cross-subsidization, etc. imposed by
judge-made scheme in professional/ higher education is an
unreasonable restriction applying the principles of
Voluntariness, Autonomy, Co-optation and Anti-
nationalisation, and, lastly, it deals with inter-relationship of
Articles 19(1)(g), 29(2) and 30(1) in the context of the minority
and non-minority's right to establish and administer
educational institutions. The point here is how does one read
the above principles of Autonomy, Voluntariness, Co-optation
and Anti-nationalisation of seats. On reading T.M.A. Pai
Foundation and P.A. Inamdar in proper perspective, it
becomes clear that the said principles have been applied in
the context of professional/ higher education where merit and
excellence have to be given due weightage and which tests do
not apply in cases where a child seeks admission to class I
and when the impugned Section 12(1)(c) seeks to remove the
financial obstacle. Thus, if one reads the 2009 Act including
Section 12(1)(c) in its application to unaided non-minority
school(s), the same is saved as reasonable restriction under
Article 19(6).
33
13. However, we want the Government to clarify the position
on one aspect. There are boarding schools and orphanages in
several parts of India. In those institutions, there are day
scholars and boarders. The 2009 Act could only apply to day
scholars. It cannot be extended to boarders. To put the
matter beyond doubt, we recommend that appropriate
guidelines be issued under Section 35 of the 2009 Act
clarifying the above position.
Validity and applicability of the 2009 Act qua unaided
minority schools
14. The inspiring preamble to our Constitution shows that
one of the cherished objects of our Constitution is to assure
to all its citizens the liberty of thought, expression, belief,
faith and worship. To implement and fortify these purposes,
Part III has provided certain fundamental rights including
Article 26 of the Constitution which guarantees the right of
every religious denomination or a section thereof, to establish
and maintain institutions for religious and charitable
purposes; to manage its affairs in matters of religion; to
acquire property and to administer it in accordance with law.
Articles 29 and 30 confer certain educational and cultural
rights as fundamental rights.
34
15. Article 29(1) confers on any section of the citizens a right
to conserve its own language, script or culture by and
through educational institutions and makes it obvious that a
minority could conserve its language, script or culture and,
therefore, the right to establish institutions of its choice is a
necessary concomitant to the right to conserve its distinctive
language, script or culture and that right is conferred on all
minorities by Article 30(1). That right, however, is subject to
the right conferred by Article 29(2).
16. Article 30(1) gives the minorities two rights: (a) to
establish and (b) to administer educational institutions of
their choice. The real import of Article 29(2) and Article 30(1)
is that they contemplate a minority institution with a sprinkle
of outsiders admitted into it. By admitting a non-member
into it the minority institution does not shed its character and
cease to be a minority institution.
17. The key to Article 30(1) lies in the words "of their choice".
18. The right established by Article 30(1) is a fundamental
right declared in terms absolute unlike the freedoms
guaranteed by Article 19 which is subject to reasonable
restrictions. Article 30(1) is intended to be a real right for the
35
protection of the minorities in the matter of setting up
educational institutions of their own choice. However,
regulations may lawfully be imposed either by legislative or
executive action as a condition of receiving grant or of
recognition. However, such regulation must satisfy the test of
reasonableness and that such regulation should make the
educational institution an effective vehicle of education for
the minority community or for the persons who resort to it.
Applying the above test in the case of Rev. Sidhajbhai Sabhai
v. State of Bombay [1963] SCR 837, this Court held the rule
authorizing reservation of seats and the threat of withdrawal
of recognition under the impugned rule to be violative of
Article 30(1).
19. The above well-settled principles have to be seen in the
context of the 2009 Act enacted to implement Article 21A of
the Constitution. At the very outset, the question that arises
for determination is what was the intention of the
Parliament? Is the 2009 Act intended to apply to unaided
minority schools? In answer to the above question, it is
important to note that in the case of P.A. Inamdar, this Court
held that there shall be no reservations in private unaided
36
colleges and that in that regard there shall be no difference
between the minority and non-minority institutions.
However, by the Constitution (Ninety-third Amendment) Act,
2005, Article 15 is amended. It is given Article 15(5). The
result is that P.A. Inamdar has been overruled on two
counts: (a) whereas this Court in P.A. Inamdar had stated
that there shall be no reservation in private unaided colleges,
the Amendment decreed that there shall be reservations; (b)
whereas this Court in P.A. Inamdar had said that there shall
be no difference between the unaided minority and non-
minority institutions, the Amendment decreed that there shall
be a difference. Article 15(5) is an enabling provision and it
is for the respective States either to enact a legislation or
issue an executive instruction providing for reservation except
in the case of minority educational institutions referred to in
Article 30(1). The intention of the Parliament is that the
minority educational institution referred to in Article 30(1) is
a separate category of institutions which needs protection of
Article 30(1) and viewed in that light we are of the view that
unaided minority school(s) needs special protection under
Article 30(1). Article 30(1) is not conditional as Article 19(1)(g).
In a sense, it is absolute as the Constitution framers thought
37
that it was the duty of the Government of the day to protect
the minorities in the matter of preservation of culture,
language and script via establishment of educational
institutions for religious and charitable purposes [See: Article
26]. Reservations of 25% in such unaided minority schools
result in changing the character of the schools if right to
establish and administer such schools flows from the right to
conserve the language, script or culture, which right is
conferred on such unaided minority schools. Thus, the 2009
Act including Section 12(1)(c) violates the right conferred on
such unaided minority schools under Article 30(1). However,
when we come to aided minority schools we have to keep in
mind Article 29(2). As stated, Article 30(1) is subject to Article
29(2). The said Article confers right of admission upon every
citizen into a State-aided educational institution. Article
29(2) refers to an individual right. It is not a class right. It
applies when an individual is denied admission into an
educational institution maintained or aided by the State. The
2009 Act is enacted to remove barriers such as financial
barriers which restrict his/her access to education. It is
enacted pursuant to Article 21A. Applying the above tests, we
hold that the 2009 Act is constitutionally valid qua aided
38
minority schools.
Conclusion (according to majority):
20. Accordingly, we hold that the Right of Children to Free
and Compulsory Education Act, 2009 is constitutionally valid
and shall apply to the following:
(i) a school established, owned or controlled by the
appropriate Government or a local authority;
(ii) an aided school including aided minority school(s)
receiving aid or grants to meet whole or part of its
expenses from the appropriate Government or the local
authority;
(iii) a school belonging to specified category; and
(iv) an unaided non-minority school not receiving any kind
of aid or grants to meet its expenses from the
appropriate Government or the local authority.
However, the said 2009 Act and in particular Sections
12(1)(c) and 18(3) infringes the fundamental freedom
guaranteed to unaided minority schools under Article 30(1)
and, consequently, applying the R.M.D. Chamarbaugwalla v.
Union of India [1957 SCR 930] principle of severability, the
39
said 2009 Act shall not apply to such schools.
21. This judgment will operate from today. In other words,
this will apply from the academic year 2012-13. However,
admissions given by unaided minority schools prior to the
pronouncement of this judgment shall not be reopened.
22. Subject to what is stated above, the writ petitions are
disposed of with no order as to costs.
.......................................CJI
(S. H. Kapadia)
.........................................J.
(Swatanter Kumar)
New Delhi;
April 12, 2012
40
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.95 OF 2010
SOCIETY FOR UN-AIDED
P.SCHOOL OF RAJASTHAN ...Petitioner(s)
Versus
U.O.I. & ANR. ..Respondent(s)
WITH
W.P. (C) NOs.98/2010, 126/2010, 137/2010, 228/2010,
269/2010, 310/2010, 364/2010, 384/2010, 22/2011,
24/2011, 21/2011, 47/2011, 59/2011, 50/2011, 83/2011,
88/2011, 99/2011, 102/2011, 104/2011, 86/2011,
101/2011, 115/2011, 154/2011, 126/2011, 118/2011,
186/2011, 148/2011, 176/2011, 205/2011, 238/2011 and
239/2011
JUDGMENT
K. S. Radhakrishnan, J.
We are, in these cases, concerned with the
constitutional validity of the Right of Children to Free and
Compulsory Education Act 2009 (35 of 2009) [in short, the
41
Act], which was enacted following the insertion of Article 21A
by the Constitution (Eighty-sixth Amendment) Act, 2002.
Article 21A provides for free and compulsory education to all
children of the age 6 to 14 years and also casts an obligation
on the State to provide and ensure admission, attendance
and completion of elementary education in such a manner
that the State may by law determine. The Act is, therefore,
enacted to provide for free and compulsory education to all
children of the age 6 to 14 years and is anchored in the belief
that the values of equality, social justice and democracy and
the creation of just and humane society can be achieved only
through a provision of inclusive elementary education to all
the children. Provision of free and compulsory education of
satisfactory quality to the children from disadvantaged
groups and weaker sections, it was pointed out, is not merely
the responsibility of the schools run or supported by the
appropriate government, but also of schools which are not
dependant on government funds.
2. Petitioners in all these cases, it may be mentioned, have
wholeheartedly welcomed the introduction of Article 21A in
the Constitution and acknowledged it as a revolutionary step
42
providing universal elementary education for all the children.
Controversy in all these cases is not with regard to the
validity of Article 21A, but mainly centers around its
interpretation and the validity of Sections 3, 12(1)(b) and
12(1)(c) and some other related provisions of the Act, which
cast obligation on all elementary educational institutions to
admit children of the age 6 to 14 years from their
neighbourhood, on the principle of social inclusiveness.
Petitioners also challenge certain other provisions purported
to interfere with the administration, management and
functioning of those institutions. I have dealt with all those
issues in Parts I to V of my judgment and my conclusions are
in Part VI.
3. Part I of the judgment deals with the circumstances and
background for the introduction of Article 21A and its scope
and object and the interpretation given by the Constitution
Benches of this Court on right to education. Part II of the
judgment deals with various socio-economic rights recognized
by our Constitution and the impact on other fundamental
rights guaranteed to others and the measures adopted by the
Parliament to remove the obstacles for realization of those
43
rights, in cases where there is conflict. In Part III of the
judgment, I have dealt with the obligations and
responsibilities of the non-state actors in realization of
children's rights guaranteed under Article 21A and the Act.
In Part IV, I have dealt with the constitutional validity of
Section 12(1)(b), 12(1)(c) of the Act and in Part V, I have dealt
with the challenge against other provisions of the Act and my
conclusions are in Part VI.
4. Senior lawyers Shri Rajeev Dhavan, Shri T.R.
Andhyarujina, Shri Ashok H. Desai, Shri Harish S. Salve,
Shri N. Chandrasekharan, Shri K. Parasaran, Shri Chander
Uday Singh, Shri Shekhar Naphade, Shri Vikas Singh, Shri
Arvind P. Dattar and large number of other counsel also
presented their arguments and rendered valuable assistance
to the Court. Shri Goolam E. Vahanvati, learned Attorney
General and Mrs. Indira Jaising, learned Additional Solicitor
General appeared for the Union of India.
PART I
5. In Mohini Jain v. State of Karnataka and others
[(1992) 3 SCC 666], this Court held that the right to
44
education is a fundamental right guaranteed under Article 21
of the Constitution and that dignity of individuals cannot be
assured unless accompanied by right to education and that
charging of capitation fee for admission to educational
institutions would amount to denial of citizens' right to
education and is violative of Article 14 of the Constitution.
The ratio laid down in Mohini Jain was questioned in Unni
Krishnan, J.P. and Others v. State of A.P. and Others
[(1993) 1 SCC 645] contending that if the judgment in
Mohini Jain was given effect to, many of the private
educational institutions would have to be closed down.
Mohini Jain was affirmed in Unni Krishnan to the extent of
holding that the right to education flows from Article 21 of the
Constitution and charging of capitation fee was illegal. The
Court partly overruled Mohini Jain and held that the right to
free education is available only to children until they
complete the age of 14 years and after that obligation of the
State to provide education would be subject to the limits of its
economic capacity and development. Private unaided
recognized/affiliated educational institutions running
professional courses were held entitled to charge the fee
higher than that charged by government institutions for
45
similar courses but that such a fee should not exceed the
maximum limit fixed by the State. The Court also formulated
a scheme and directed every authority to impose that scheme
upon institutions seeking recognition/affiliation, even if they
are unaided institutions. Unni Krishnan introduced the
concept of "free seats" and "payment seats" and ordered that
private unaided educational institutions should not add any
further conditions and were held bound by the scheme. Unni
Krishnan also recognized the right to education as a
fundamental right guaranteed under Article 21 of the
Constitution and held that the right is available to children
until they complete the age of 14 years.
6. The Department of Education, Ministry of Human
Resources Development, Government of India after the
judgment in Unni Krishnan made a proposal to amend the
Constitution to make the right to education a fundamental
right for children up to the age of 14 years and also a
fundamental duty of citizens of India so as to achieve the goal
of universal elementary education. The Department also
drafted a Bill [Constitution (Eighty-third Amendment) Bill,
1997] so as to insert a new Article 21A in the Constitution
46
which read as follows:
"21A. Right to education.
21A(1) The State shall provide free and
compulsory education to all citizens of the age of six
to fourteen years.
Clause(2) The Right to Free and Compulsory
Education referred to in clause (1) shall be enforced
in such manner as the State may, by law,
determine.
Clause (3) The State shall not make any law, for
free and compulsory education under Clause(2), in
relation to the educational institutions not
maintained by the State or not receiving aid out of
State funds."
7. The draft Bill was presented before the Chairman, Rajya
Sabha on 28.07.1997, who referred the Bill to a Committee
for examination and report. The Committee called for
suggestions/views from individuals, organisations,
institutions etc. and ultimately submitted its report on
4.11.1997. The Committee in its Report referred to the
written note received from the Department of Education and
stated as follows:
"Department in its written note stated that the
Supreme Court in its judgment in Unni Krishnan
J.P. v. Andhra Pradesh, has held that children of
this country have a Fundamental Right to free
education until they complete the age of 14 years.
47
This right flows from Article 21 relating to personal
liberty and its content, parameters have to be
determined in the light of Article 41 which provides
for right to work, to education and to public
assistance in certain cases and Article 45 which
provides for free and compulsory education to
children up to the age of 14 years. The apex Court
has observed that the obligations created by these
Articles of the Constitution can be discharged by
the State either by establishing institutions of its
own or by aiding recognising and granting affiliation
to educational institutions. On clause (3) of the
proposed Article 21, the report stated as follows:
"11. Clause (3) of the proposed Article 21
provides that the State shall not make any law
for free and compulsory education under clause
(2), in relation to the educational institutions
not maintained by the State or not receiving aid
out of State funds. However, strong
apprehensions were voiced about clause (3) of
the proposed new Article 21A. Many of the
people in the written memoranda and also
educational experts in the oral evidence have
expressed displeasure over keeping the private
educational institutions outside the purview of
the fundamental right to be given to the
children. The Secretary stated that the
Supreme Court in the Unni Krishnan judgment
said that wherever the State is not providing
any aid to any institution, such an institution
need not provide free education. The
Department took into account the Supreme
Court judgment in the Unni Krishnan case
which laid down that no private institution, can
be compelled to provide free services. Therefore,
they provided in the Constitutional amendment
that this concept of free education need not be
extended to schools or institutions which are
not aided by the Government, the Secretary
added. He, however, stated that there was no
intention, to exclude them from the overall
responsibility to provide education."
48
8. The Committee specifically referred to the judgment in
Unni Krishnan in paragraph 15.14 of the Report. Reference
was also made to the dissenting note of one of the members.
Relevant portion of the report is extracted below:
"15.14. Clause (3) of the proposed Article 21(A)
prohibits the State from making any law for free
and compulsory education in relation to educational
institutions not maintained by the State or not
receiving aid out of State funds. This issue was
discussed by the Members of the Committee at
length. The members were in agreement that even
though the so called private institutions do not
receive any financial aid, the children studying in
those institutions should not be deprived of their
fundamental right. As regards the interpretation as
to whether the private institutions should provide
free education or not, the Committee is aware of the
Supreme Court judgment given in the Unni
Krishnan case. This judgment provides the rule for
application and interpretation. In view of the
judgment, it is not necessary to make a clause in
the Constitution. It would be appropriate to leave
the interpretation to the courts instead of making a
specific provision in black and white. Some
members, however, felt that the private institutions
which do not get any financial aid, provide quality
education. Therefore, it would be inappropriate to
bring such institutions under the purview of free
education. Those members, accordingly, felt that
clause (3) should not be deleted.
15.15. The Committee, however, after a
thorough discussion feels that this provision need
not be there. The Committee recommends that
clause (3) of the proposed Article 21(A) may be
deleted. Smt. Hedwig Michael Rego, M.P. a Member
of the Committee gave a Minute of Dissent. It is
appended to the report.
49
15.16. The Committee recommends that the
Bill be passed subject to the recommendations
made in the preceding paragraphs.
MINUTES OF DISSENT
I vehemently oppose the State wanting to
introduce free and compulsory education in private,
unaided schools.
Clause 21A (3) must be inserted as I do not
wish the State to make laws regarding free and
compulsory education in relation to educational
institutions not maintained by the State or not
receiving aid out of State funds.
A Committee of State Education Ministers
have already considered the issue in view of the
Unni Krishnan case, and found it not feasible to
bring unaided private educational institutions
within the purview of the Bill.
Hence, I state once again that the proposed
clause "21A(3") must be inserted in the Bill.
Yours sincerely,
Sd/'
(SMT. HEDWIG MICHAEL REGO)"
(emphasis supplied)
9. Report referred to above was adopted by the
Parliamentary Standing Committee on Human Resource
Development and submitted the same to the Rajya Sabha on
24.11.1997 and also laid on the Table of the Lok Sabha on
24.11.1997. The Lok Sabha was however dissolved soon
thereafter and elections were declared and that Bill was not
50
further pursued.
10. The Chairman of the Law Commission who authored
Unni Krishnan judgment took up the issue suo moto.
Following the ratio in Unni Krishnan, the Law Commission
submitted its 165th Report to the Ministry of Law, Justice and
Company Affairs, Union of India vide letter dated 19.11.1998.
Law Commission in that letter stated as follows: "Law
Commission had taken up the aforesaid subject suo moto
having regard to the Directive Principle of the Constitution of
India as well as the decision of the Supreme Court of India."
11. Referring to the Constitution (Eighty-third Amendment)
Bill, 1997, Law Commission in its report in paragraph 6.1.4
stated as under:
"6.1.4 (page 165.35): The Department of
Education may perhaps be right in saying that as
of today the private educational institutions which
are not in receipt of any grant or aid from the State,
cannot be placed under an obligation to impart free
education to all the students admitted into their
institutions. However, applying the ratio of
Unnikrishnan case, it is perfectly legitimate for the
State or the affiliating Board, as the case may be, to
require the institution to admit and impart free
education to fifty per cent of the students as a
condition for affiliation or for permitting their
students to appear for the Government/Board
examination. To start with, the percentage can be
51
prescribed as twenty. Accordingly, twenty per cent
students could be selected by the concerned
institution in consultation with the local authorities
and the parent-teacher association. This proposal
would enable the unaided institutions to join the
national endeavour to provide education to the
children of India and to that extent will also help
reduce the financial burden upon the State."
(emphasis supplied)
12. The Law Commission which had initiated the
proceedings suo moto in the light of Unni Krishnan
suggested deletion of clause (3) from Article 21A
stating as follows: "So far as clause (3) is
concerned, the Law Commission states that it
should be totally recast on the light of the basic
premise of the decision in Unni Kirshnan which
has been referred to hereinabove. It would neither
be advisable nor desirable that the unaided
educational institutions are kept outside the
proposed Article altogether while the sole primary
obligation to provide education is upon the State,
the educational institutions, whether aided or
unaided supplement this effort."
Para 6.6.2 of the report reads as under:
"6.6.2. The unaided institutions should be made
aware that recognition, affiliation or permission to
52
send their children to appear for the
Government/Board examination also casts a
corresponding social obligation upon them towards
the society. The recognition/affiliation/permission
aforesaid is meant to enable them to supplement
the effort of the State and not to enable them to
make money. Since they exist and function
effectively because of such
recognition/affiliation/permission granted by public
authorities, they must and are bound to serve the
public interest. For this reason, the unaided
educational institutions must be made to impart
free education to 50% of the students admitted to
their institutions. This principle has already been
applied to medical, engineering and other colleges
imparting professional education and there is no
reason why the schools imparting
primary/elementary education should not be placed
under the same obligation. Clause (3) of proposed
Article 21A may accordingly be recast to give effect
to the above concept and obligation."
Reference may also be made to the following paragraphs
of the Report:
"6.8. The aforesaid bill was referred by the
Chairman, Rajya Sabha to the Department-Related
Parliamentary Standing Committee on Human
Resources Development. A press communiqué
inviting suggestions/views was issued on 18 th
August, 1997. The Committee considered the Bill in
four sittings and heard oral evidence. It adopted the
draft report at its meeting held on 4 th November,
1997. The report was then presented to the Rajya
Sabha on 24th November, 1997 and laid on the table
of the Lok Sabha on the same day. Unfortunately,
the Lok Sabha was dissolved soon thereafter and
elections were called.
6.8.1. The Budget Session after the new Lok
Sabha was constituted is over. There is, however,
53
no indication whether the Government is inclined to
pursue the pending bill.
6.9. The question is debatable whether it is at all
necessary to amend the Constitution when there is
an explicit recognition of the right to education till
the age of fourteen years by the Supreme Court in
Unni Krishnan's case. As the said judgment can be
overruled by a larger Bench in another case, thus
making this right to education vulnerable, it would
appear advisable to give this right constitutional
sanctity."
13. Law Commission was giving effect to the ratio of Unni
Krishnan and made suggestions to bring in Article 21A
mainly on the basis of the scheme framed in Unni Krishnan
providing "free seats" in private educational institutions.
14. The Law Commission report, report of the
Parliamentary Standing Committee, judgment in Unni
Krishnan etc. were the basis on which the Constitution
(Ninety-third Amendment) Bill, 2001 was prepared and
presented. Statement of objects and reasons of the Bill given
below would indicate that fact:
"2. With a view to making right to education free
and compulsory education a fundamental right, the
Constitution (Eighty-third Amendment ) Bill, 1997
was introduced in the Parliament to insert a new
article, namely, Article 21A conferring on all
children in the age group of 6 to14 years the right to
free and compulsory education. The said Bill was
54
scrutinized by the Parliamentary Standing
Committee on Human Resource Development and
the subject was also dealt with in its 165 th Report by
the Law Commission of India.
3. After taking into consideration the report of the
Law Commission of India and the recommendations
of the Standing Committee of Parliament, the
proposed amendments in Part III, Part IV and Part
IVA of the Constitution are being made which are as
follows:
(a) to provide for free and compulsory education to
children in the age group of 6 to 14 years and for
this purpose, a legislation would be introduced in
parliament after the Constitution (Ninety-third
Amendment) Bill, 2001 is enacted;
(b) to provide in article 45 of the Constitution that
the State shall endeavour to provide early childhood
care and education to children below the age of six
years; and
(c) to amend article 51A of the Constitution with a
view to providing that it shall be the obligation of
the parents to provide opportunities for education to
their children.
4. The Bill seeks to achieve the above objects."
15. The above Bill was passed and received the assent of
the President on 12.12.2002 and was published in the
Gazette of India on 13.12.2002 and the following provisions
were inserted in the Constitution; by the Constitution
(Eighty-sixth Amendment) Act, 2002.
Part III Fundamental Rights
55
"21A. Right to Education. The State shall
provide free and compulsory education to all
children of the age of six to fourteen years in such
manner as the State may, by law, determine.
Part IV Directive Principles of State Policy
45. Provision for early childhood care and
education to children below the age of six
years. The State shall endeavour to provide early
childhood care and education for all children until
they complete the age of six years.
Part IVA Fundamental Duties
51A. Fundamental duties - It shall be the duty of
every citizen of India
xxx xxx xxx
(k) who is a parent or guardian to provide
opportunities for education to his child or, as the
case may be, ward between the age of six and
fourteen years."
16. Reference was earlier made to the Parliamentary
Standing Committee Report, 165th Law Commission Report,
1998 and the opinion expressed by the Department of
Education so as to understand the background of the
introduction of Article 21A which is also necessary to properly
understand the scope of the Act. In Herron v. Rathmines
and Rathgar Improvement Commissioners [1892] AC 498
at p. 502, the Court held that the subject-matter with which
the Legislature was dealing, and the facts existing at the time
56
with respect to which the Legislature was legislating are
legitimate topics to consider in ascertaining what was the
object and purpose of the Legislature in passing the Act. In
Mithilesh Kumari and Another v. Prem Behari Khare
[(1989) 2 SCC 95], this Court observed that "where a
particular enactment or amendment is the result of
recommendation of the Law Commission of India, it may be
permissible to refer to the relevant report." (See also Dr.
Baliram Waman Hiray v. Justice B. Lentin and Others
[(1988) 4 SCC 419], Santa Singh v. State of Punjab [(1976)
4 SCC 190], Ravinder Kumar Sharma v. State of Assam
[(1999) 7 SCC 435].
UNNI KRISHNAN:
17. Unni Krishnan had created mayhem and raised thorny
issues on which the Law Commission had built up its edifice,
suo moto. The Law Commission had acknowledged the fact
that but for the ratio in Unni Kirshnan the unaided private
educational institutions would have no obligation to impart
free and compulsory education to the children admitted in
their institutions. Law Commission was also of the view that
the ratio in Unni Krishnan had legitimized the State or the
affiliating Board to require unaided educational institutions to
57
provide free education, as a condition for affiliation or for
permitting the students to appear for the Government/Board
examination.
18. Unni Krishnan was questioned contending that it had
imposed unreasonable restrictions under Article 19(6) of the
Constitution on the administration of the private educational
institutions and that the rights of minority communities
guaranteed under Article 29 and Article 30 were eroded.
Unni Krishnan scheme which insisted that private unaided
educational institutions should provide for "free seats" as a
condition for recognition or affiliation was also questioned
contending that the same would amount to nationalisation of
seats.
PAI FOUNDATION
19. T.M.A. Pai Foundation and others v. State of
Karnataka and others [(2002) 8 SCC 481] examined the
correctness of the ratio laid down in Unni Krishnan and also
the validity of the scheme. The correctness of the rigid
percentage of reservation laid down in St. Stephen's College
v. University of Delhi [(1992) 1 SCC 558] in the case of
58
minority aided educational institutions and the meaning and
contents of Articles 30 and 29(2) were also examined.
20. Pai Foundation acknowledged the right of all citizens
to practice any profession, trade or business under Article
19(1)(g) and Article 26 and held those rights would be subject
to the provisions that were placed under Article 19(6) and
26(a) and the rights of minority to establish and administer
educational institutions under Article 30 was also upheld.
21. Unni Krishnan scheme was held unconstitutional, but
it was ordered that there should be no capitation fee or
profiteering and reasonable surplus to meet the cost of
expansion and augmentation of facilities would not mean
profiteering. Further, it was also ordered that the expression
"education" in all the Articles of the Constitution would mean
and include education at all levels, from primary education
level up to post graduate level and the expression
"educational institutions" would mean institutions that
impart education as understood in the Constitution.
22. Pai Foundation has also recognised that the
expression "occupation" in Article 19(1)(g) is an activity of a
person undertaken as a means of livelihood or a mission in
life and hence charitable in nature and that establishing and
59
running an educational institution is an occupation, and in
that process a reasonable revenue surplus can be generated
for the purpose of development of education and expansion of
the institutions. The right to establish and administer
educational institutions, according to Pai Foundation,
comprises right to admit students, set up a reasonable fee
structure, constitute a governing body, appoint staff, teaching
and non-teaching and to take disciplinary action. So far as
private unaided educational institutions are concerned, the
Court held that maximum autonomy has to be with the
management with regard to administration, including the
right of appointment, disciplinary powers, admission of
students and the fee to be charged etc. and that the authority
granting recognition or affiliation can certainly lay down
conditions for the grant of recognition or affiliation but those
conditions must pertain broadly to academic and educational
matters and welfare of students and teachers. The Court held
that the right to establish an educational institution can be
regulated but such regulatory measures must be in general to
ensure proper academic standards, atmosphere and
infrastructure and prevention of maladministration. The
necessity of starting more quality private unaided educational
60
institutions in the interest of general public was also
emphasised by the Court by ensuring autonomy and non-
regulation in the school administration, admission of
students and fee to be charged. Pai Foundation rejected the
view that if a private school is allowed to charge fee
commensurate with the fee affordable, the degrees would be
purchasable as unfounded since the standards of education
can be and are controllable through recognition, affiliation
and common final examination. Casting burden on other
students to pay for the education of others was also
disapproved by Pai Foundation holding that there should be
no cross-subsidy.
23. Pai Foundation has also dealt with the case of private
aided professional institutions, minority and non-minority,
and also other aided institutions and stated that once aid is
granted to a private professional educational institution, the
government or the state agency, as a condition of the grant of
aid, can put fetters on the freedom in the matter of
administration and management of the institution. Pai
Foundation also acknowledged that there are large number
of educational institutions, like schools and non-professional
colleges, which cannot operate without the support of aid
61
from the state and the Government in such cases, would be
entitled to make regulations relating to the terms and
conditions of employment of the teaching and non-teaching
staff. In other words, autonomy in private aided institutions
would be less than that of unaided institutions.
24. Pai Foundation also acknowledged the rights of the
religious and linguistic minorities to establish and administer
educational institutions of their choice under Article 30(1) of
the Constitution and held that right is not absolute as to
prevent the government from making any regulation
whatsoever. The Court further held that as in the case of a
majority run institution, the moment a minority institution
obtains a grant or aid, Article 28 of the Constitution comes
into play.
25. Pai Foundation further held that the ratio laid down in
St. Stephen is not correct and held that even if it is possible
to fill up all the seats with students of the minority group, the
moment the institution is granted aid, the institution will
have to admit students of the non-minority group to a
reasonable extent, whereby the character of the institution is
not annihilated, and at the same time, the rights of the citizen
engrafted under Article 29(2) are not subverted. The judgment
62
in Pai Foundation was pronounced on 31.10.2002,
25.11.2002 and Article 21A, new Article 45 and Article 51A(k)
were inserted in the Constitution on 12.12.2002, but the
basis for the introduction of Article 21A and the deletion of
original clause (3) from Article 21A, was due to the judgment
of Unnikrishnan. Parliament, it may be noted, was
presumed to be aware of the judgment in Pai Foundation,
and hence, no obligation was cast on unaided private
educational institutions but only on the State, while inserting
Article 21A.
26. The judgment in Pai Foundation, after the
introduction of the above mentioned articles, was interpreted
by various Courts, State Governments, educational
institutions in different perspectives leading to the enactment
of various statutes and regulations as well, contrary to each
other. A Bench of five Judges was, therefore, constituted to
clarify certain doubts generated out of the judgment in Pai
Foundation and its application. Rights of unaided minority
and non-minority institutions and restrictions sought to be
imposed by the State upon them were the main issues before
the Court and not with regard to the rights and obligations of
private aided institutions run by minorities and non-
63
minorities. The five Judges' Bench rendered its judgment on
14.8.2003 titled Islamic Academy of Education and
another v. State of Karnataka and others [(2003) 6 SCC
697]. Unfortunately, Islamic Academy created more
problems and confusion than solutions and, in order to steer
clear from that predicament, a seven Judges Bench was
constituted and the following specific questions were referred
for its determination:
"(1) To what extent the State can regulate the
admissions made by unaided (minority or non-
minority) educational institutions? Can the State
enforce its policy of reservation and/or appropriate
to itself any quota in admissions to such
institutions?
(emphasis supplied)
(2) Whether unaided (minority and non-
minority) educational institutions are free to devise
their own admission procedure or whether direction
made in Islamic Academy for compulsorily holding
entrance test by the State or association of
institutions and to choose therefrom the students
entitled to admission in such institutions, can be
sustained in light of the law laid down in Pai
Foundation?
(3) Whether Islamic Academy could have
issued guidelines in the matter of regulating the fee
payable by the students to the educational
institutions?
(4) Can the admission procedure and fee
structure be regulated or taken over by the
Committees ordered to be constituted by Islamic
Academy?"
64
27. Above mentioned questions were answered in P.A.
Inamdar and others v. State of Maharashtra and others
[(2005) 6 SCC 537] and the Court cleared all confusion and
doubts, particularly insofar as unaided minority and non-
minority educational institutions are concerned.
28. Inamdar specifically examined the inter-relationship
between Articles 19(1)(g), 29(2) and 30(1) of the Constitution
and held that the right to establish an educational institution
(which evidently includes schools as well) for charity or a
profit, being an occupation, is protected by Article 19(1)(g)
with additional protection to minority communities under
Article 30(1). Inamdar, however, reiterated the fact that,
once aided, the autonomy conferred by protection of Article
30(1) is diluted, as the provisions of Articles 29(2) will be
attracted and certain conditions in the nature of regulations
can legitimately accompany the State aid. Reasonable
restrictions pointed out by Inamdar may be indicated on the
following subjects: (i) the professional or technical
qualifications necessary for practicing any profession or
carrying on any occupation, trade or business; (ii) the
carrying on by the State, or by a corporation owned or
controlled by the State of any trade, business, industry or
65
service whether to the exclusion, complete or partial of
citizens or otherwise.
29. Referring to the judgments in Kerala Education
Bill , In Re. 1959 SCR 995 and St. Stephen, the Court took
the view that once an educational institution is granted aid or
aspires for recognition, the State may grant aid or recognition
accompanied by certain restrictions or conditions which must
be followed as essential to the grant of such aid or
recognition. Inamdar, as I have already indicated, was
mainly concerned with the question whether the State can
appropriate the quota of unaided educational institutions
both minority and non-minority. Explaining Pai Foundation,
the Court in Inamdar held as follows:
"119. A minority educational institution may
choose not to take any aid from the State and may
also not seek any recognition or affiliation. It may be
imparting such instructions and may have students
learning such knowledge that do not stand in need
of any recognition. Such institutions would be those
where instructions are imparted for the sake of
instructions and learning is only for the sake of
learning and acquiring knowledge. Obviously, such
institutions would fall in the category of those who
would exercise their right under the protection and
privilege conferred by Article 30(1) "to their hearts'
content" unhampered by any restrictions excepting
those which are in national interest based on
considerations such as public safety, national
security and national integrity or are aimed at
66
preventing exploitation of students or the teaching
community. Such institutions cannot indulge in any
activity which is violative of any law of the land.
120. They are free to admit all students of their
own minority community if they so choose to do.
(Para 145, Pai Foundation)
(ii) Minority unaided educational
institutions asking for affiliation or
recognition
121. Affiliation or recognition by the State or
the Board or the university competent to do so,
cannot be denied solely on the ground that the
institution is a minority educational institution.
However, the urge or need for affiliation or
recognition brings in the concept of regulation by
way of laying down conditions consistent with the
requirement of ensuring merit, excellence of
education and preventing maladministration. For
example, provisions can be made indicating the
quality of the teachers by prescribing the minimum
qualifications that they must possess and the
courses of studies and curricula. The existence of
infrastructure sufficient for its growth can be
stipulated as a prerequisite to the grant of
recognition or affiliation. However, there cannot be
interference in the day-to-day administration. The
essential ingredients of the management, including
admission of students, recruiting of staff and the
quantum of fee to be charged, cannot be regulated.
(Para 55, Pai Foundation)
122. Apart from the generalised position of law
that the right to administer does not include the
right to maladminister, an additional source of
power to regulate by enacting conditions
accompanying affiliation or recognition exists. A
balance has to be struck between the two
objectives: (i) that of ensuring the standard of
67
excellence of the institution, and (ii) that of
preserving the right of the minority to establish and
administer its educational institution. Subject to a
reconciliation of the two objectives, any regulation
accompanying affiliation or recognition must satisfy
the triple tests: (i) the test of reasonableness and
rationality, (ii) the test that the regulation would be
conducive to making the institution an effective
vehicle of education for the minority community or
other persons who resort to it, and (iii) that there is
no inroad into the protection conferred by Article
30(1) of the Constitution, that is, by framing the
regulation the essential character of the institution
being a minority educational institution, is not
taken away. (Para 122, Pai Foundation)
(iii) Minority educational institutions
receiving State aid
123. Conditions which can normally be
permitted to be imposed on the educational
institutions receiving the grant must be related to
the proper utilisation of the grant and fulfilment of
the objectives of the grant without diluting the
minority status of the educational institution, as
held in Pai Foundation (see para 143 thereof). As
aided institutions are not before us and we are not
called upon to deal with their cases, we leave the
discussion at that only.
124. So far as appropriation of quota by the
State and enforcement of its reservation policy is
concerned, we do not see much of a difference
between non-minority and minority unaided
educational institutions. We find great force in the
submission made on behalf of the petitioners that
the States have no power to insist on seat-sharing
in unaided private professional educational
institutions by fixing a quota of seats between the
management and the State. The State cannot insist
on private educational institutions which receive no
aid from the State to implement the State's policy
68
on reservation for granting admission on lesser
percentage of marks i.e. on any criterion except
merit.
125. As per our understanding, neither in the
judgment of Pai Foundation nor in the Constitution
Bench decision in Kerala Education Bill which was
approved by Pai Foundation is there anything which
would allow the State to regulate or control
admissions in the unaided professional educational
institutions so as to compel them to give up a share
of the available seats to the candidates chosen by
the State, as if it was filling the seats available to be
filled up at its discretion in such private
institutions. This would amount to nationalisation
of seats which has been specifically disapproved in
Pai Foundation. Such imposition of quota of State
seats or enforcing reservation policy of the State on
available seats in unaided professional institutions
are acts constituting serious encroachment on the
right and autonomy of private professional
educational institutions. Such appropriation of
seats can also not be held to be a regulatory
measure in the interest of the minority within the
meaning of Article 30(1) or a reasonable restriction
within the meaning of Article 19(6) of the
Constitution. Merely because the resources of the
State in providing professional education are
limited, private educational institutions, which
intend to provide better professional education,
cannot be forced by the State to make admissions
available on the basis of reservation policy to less
meritorious candidates. Unaided institutions, as
they are not deriving any aid from State funds, can
have their own admissions if fair, transparent, non-
exploitative and based on merit." (emphasis
supplied)
Pai Foundation, it was pointed out by Inamdar, merely
permitted the unaided private institutions to maintain merit
as the criterion of admission by voluntarily agreeing for seat
69
sharing with the State or adopting selection based on
common entrance test of the State. Further, it was also
pointed that unaided educational institutions can frame their
own policy to give free-ships and scholarships to the needy
and poor students or adopt a policy in line with the
reservation policy of the state to cater to the educational
needs of weaker and poorer sections of the society not out of
compulsion, but on their own volition. Inamdar reiterated
that no where in Pai Foundation, either in the majority or in
the minority opinion, have they found any justification for
imposing seat sharing quota by the State on unaided private
professional educational institutions and reservation policy of
the State or State quota seats or management seats.
Further, it was pointed that the fixation of percentage of
quota is to be read and understood as possible consensual
arrangements which can be reached between unaided private
professional institutions and the State. State regulations, it
was pointed out, should be minimal and only with a view to
maintain fairness and transparency in admission procedure
and to check exploitation of the students by charging
exorbitant money or capitation fees. Inamdar, disapproved
the scheme evolved in Islamic Academy to the extent it
70
allowed States to fix quota for seat sharing between
management and the States on the basis of local needs of
each State, in the unaided private educational institutions of
both minority and non-minority categories. Inamdar held
that to admit students being one of the components of right
to establish and administer an institution, the State cannot
interfere therewith and upto the level of undergraduate
education, the minority unaided educational institutions
enjoy "total freedom". Inamdar emphasised the fact that
minority unaided institutions can legitimately claim
"unfettered fundamental right" to choose the students to be
allowed admissions and the procedure therefore subject to its
being fair, transparent and non-exploitative and the same
principle applies to non-minority unaided institutions as well.
Inamdar also found foul with the judgment in Islamic with
regard to the fixation of quota and for seat sharing between
the management and the State on the basis of local needs of
each State in unaided private educational institutions, both
minority and non-minority. Inamdar noticed that Pai
Foundation also found foul with the judgment in Unni
Krishnan and held that admission of students in unaided
minority educational institutions/schools where scope for
71
merit based is practically nil cannot be regulated by the State
or University except for providing the qualification and
minimum condition of eligibility in the interest of academic
standards.
30. Pai Foundation as well as Inamdar took the view
that laws of the land including rules and regulations must
apply equally to majority as well as minority institutions and
minority institutions must be allowed to do what majority
institutions are allowed to do. Pai Foundation examined
the expression "general laws of the land" in juxtaposition
with "national interest" and stated in Para 136 of the
judgment that general laws of land applicable to all persons
have been held to be applicable to the minority institutions
also, for example, laws relating to taxation, sanitation, social
welfare, economic regulations, public order and morality.
31. While examining the scope of Article 30, this fact was
specifically referred to in Inamdar (at page 594) and took the
view that, in the context of Article 30(1), no right can be
absolute and no community can claim its interest above
national interest. The expression "national interest" was
used in the context of respecting "laws of the land", namely,
while imposing restrictions with regard to laws relating to
72
taxation, sanitation, social welfare, economic legislation,
public order and morality and not to make an inroad into the
fundamental rights guaranteed under Article 19(1)(g) or
Article 30(1) of the Constitution.
32. Comparing the judgments in Inamdar and Pai
Foundation, what emerges is that so far as unaided
educational institutions are concerned, whether they are
established and administered by minority or non-minority
communities, they have no legal obligation in the matter of
seat sharing and upto the level of under-graduate education
they enjoy total freedom. State also cannot compel them to
give up a share of the available seats to the candidates
chosen by the State. Such an appropriation of seats, it was
held, cannot be held to be a regulatory measure in the
interest of minority within the meaning of Article 30(1) or a
reasonable restriction within the meaning of Article 19(6) of
the Constitution since they have unfettered fundamental
right and total freedom to run those institutions subject to
the law relating to taxation, sanitation, social welfare,
economic legislation, public order and morality.
33. Pai Foundation was examining the correctness of the
ratio in Unni Krishnan, which I have already pointed out,
73
was the basis for the insertion of Article 21A and the deletion
of clause (3) of the proposed Article 21A. Inamdar also
noticed that Pai Foundation had struck down ratio of Unni
Krishnan which invaded the rights of unaided educational
institutions by framing a scheme. Article 21A envisaged a
suitable legislation so as to achieve the object of free and
compulsory education to children of the age 6 to 14 years
and imposed obligation on the State, and not on unaided
educational institutions.
34. Parliament, in its wisdom, brought in a new legislation
Right to Education Act to provide free and compulsory
education to children of the age 6 to 14 years, to discharge
the constitutional obligation of the State, as envisaged under
Article 21A. Provisions have also been made in the Act to
cast the burden on the non-state actors as well, to achieve
the goal of Universal Elementary Education. The statement of
objects and reasons of the Bill reads as follows:
"4. The proposed legislation is anchored in the
belief that the values of equality, social justice and
democracy and the creation of a just and humane
society can be achieved only through provision of
inclusive elementary education to all. Provision of
free and compulsory education of satisfactory
quality to children from disadvantaged and weaker
sections is, therefore, not merely the responsibility
of schools run or supported by the appropriate
74
Governments, but also of schools which are not
dependent on Government funds."
35. The Bill was introduced in the Rajya Sabha which
passed the Bill on 20.7.2009 and in Lok Sabha on 4.8.2009
and received the assent of the President on 26.8.2009 and
was published in the Gazette of India on 27.8.2009.
36. Learned Attorney General of India submitted that the
values of equality, social justice and democracy and the
creation of just and humane society can be achieved only
through a provision of inclusive elementary education by
admitting children belonging to disadvantaged group and
weaker sections of the society which is not only the
responsibility of the state and institutions supported by the
state but also schools which are not dependent on
government funds. Learned Attorney General also submitted
that the state has got an obligation and a duty to enforce the
fundamental rights guaranteed to children of the age of 6 to
14 years for free and compulsory education and is to achieve
that objective, the Act was enacted. Learned Attorney
General submitted that Article 21A is a socio-economic right
which must get priority over rights under Article 19(1)(g) and
Article 30(1), because unlike other rights it does not operate
75
merely as a limitation on the powers of the state but it
requires affirmative state action to protect and fulfil the rights
guaranteed to children of the age of 6 to 14 years for free and
compulsory education. Reference was also made to the
judgments of this Court in Indian Medical Association v.
Union of India and others [(2011) 7 SCC 179] (in short
Medical Association case), Ahmedabad St. Xavier's College
Society and Another v. State of Gujarat and Another
[(1974) 1 SCC 717], Rev. Sidhajbhai Sabhai and Others v.
State of Bombay and Another [(1963) 3 SCR 837] and In
re. Kerala Education Bill (supra).
37. Learned Additional Solicitor General in her written as
well as oral submissions stated that Article 21A must be
considered as a stand alone provision and not subjected to
Article 19(1)(g) and Article 30(1) of the Constitution. Article
19(1)(g) and Article 30(1), it was submitted, dealt with the
subject of right to carry on occupation of establishing and
administering educational institutions, while Article 21A
deals exclusively with a child's right to primary education.
Article 21A, it was pointed out, has no saving clause which
indicates that it is meant to be a complete, standalone clause
on the subject matter of the right to education and is
76
intended to exclude the application of Article 19(1)(g) and
Article 30(1). Learned Additional Solicitor General submitted
that omission of clause (3) in the original proposed Article
21A would indicate that the intention of the Parliament was
to apply the mandate of Article 21A to all the educational
institutions, public or private, aided or unaided, minority or
non-minority.
38. Mrs. Menaka Guruswamy and Mrs. Jayna Kothari,
appearing for the intervener namely The Azim Premji
Foundation, in I.A. No. 7 in W.P. (C) No. 95/2010, apart from
other contentions, submitted that Article 21A calls for
horizontal application of sanction on state actors so as to give
effect to the fundamental rights guaranteed to the people.
Learned counsels submitted that Sections 15(2), 17, 18, 23
and 24 of the Constitution expressly impose constitutional
obligations on non-state actors and incorporate the notion of
horizontal application of rights. Reference was also made to
the judgment of this Court in People's Union for
Democratic Rights and Others v. Union of India and
Others [(1982) 3 SCC 235] and submitted that many of the
fundamental rights enacted in Part III, such as Articles 17, 23
and 24, among others, would operate not only against the
77
State but also against other private persons. Reference was
also made to the judgment of this Court Vishaka and
Others v. State of Rajasthan [(1997) 6 SCC 241], in which
this Court held that all employees, both public and private,
would take positive steps not to infringe the fundamental
rights guaranteed to female employees under Articles 14, 15,
21 and 19(1)(g) of the Constitution. Reference was also made
to Article 15(3) and submitted that the Constitution permits
the State to make special provisions regarding children.
Further, it was also contended that Articles 21A and 15(3)
provide the State with Constitutional instruments to realize
the object of the fundamental right to free and compulsory
education even through non-state actors such as private
schools.
39. Shri Rajeev Dhavan, learned senior counsel appearing
on behalf of some of the petitioners, submitted that Article
21A casts an obligation on the state and state alone to
provide free and compulsory education to children upto the
age of 6 to 14 years, which would be evident from the plain
reading of Article 21A read with Article 45. Learned senior
counsel submitted that the words "state shall provide" are
express enough to reveal the intention of the Parliament.
78
Further, it was stated that the constitutional provision never
intended to cast responsibility on the private educational
institutions along with the State, if that be so like Article
15(5), it would have been specifically provided so in Article
21A. Article 21A or Article 45 does not even remotely indicate
any idea of compelling the unaided educational institutions to
admit children from the neighbourhood against their wish
and in violation of the rights guaranteed under the
Constitution. Learned senior counsel submitted that since no
constitutional obligation is cast on the private educational
institutions under Article 21A, the State cannot through a
legislation transfer its constitutional obligation on the private
educational institutions. Article 21A, it was contended, is not
subject to any limitation or qualification so as to offload the
responsibility of the State on the private educational
institutions so as to abridge the fundamental rights
guaranteed to them under Article 19(1)(g), Article 26(a),
Article 29(1) and Article 30(1) of the Constitution.
40. Learned senior counsel submitted that Article 21A is
not meant to deprive the above mentioned core rights
guaranteed to the petitioners and if the impugned provisions
of the Act do so, to that extent, they may be declared
79
unconstitutional. Learned senior counsel submitted that the
"core individual rights" always have universal dimension and
thus represent universal value while "socio-economic rights"
envisaged the sectional interest and the core individual right,
because of its universal nature, promote political equality and
human dignity and hence must promote precedence over the
socio-economic rights. Learned senior counsel also
submitted that constitutional concept and the constitutional
interpretation given by Pai Foundation and Inamdar cannot
be undone by legislation. Learned counsel also submitted
that the concept of social inclusiveness has to be achieved
not by abridging or depriving the fundamental rights
guaranteed to the citizens who have established and are
administering their institutions without any aid or grant but
investing their own capital. The principles stated in Part IV of
the Constitution and the obligation cast on the State under
Article 21A, it was contended, are to be progressively achieved
and realised by the State and not by non-state actors and
they are only expected to voluntarily support the efforts of the
state.
41. Shri T.R. Andhyarujina, learned senior counsel
appearing for some of the minority institutions submitted
80
that the object of Articles 25 to 30 of the Constitution is to
preserve the rights of religious and linguistic minorities and
to place them on a secure pedestal and withdraw them from
the vicissitudes of political controversy. Learned senior
counsel submitted that the very purpose of incorporating
those rights in Part-III is to afford them guarantee and
protection and not to interfere with those rights except in
larger public interest like health, morality, public safety,
public order etc. Learned senior counsel extensively referred
to various provisions of the Act, and submitted that they
would make serious inroad into the rights guaranteed to the
minority communities. Learned counsel further submitted
that Section 12(1)(b) and 12(1)(c) in fact, completely take
away the rights guaranteed to minority communities, though
what was permitted by this Court was only "sprinkling of
outsiders" that is members of all the communities. Counsel
submitted that the mere fact that some of the institutions
established and administered by the minority communities
have been given grant or aid, the State cannot take away the
rights guaranteed to them under Article 30(1) of the
Constitution of India. Learned counsel submitted that
Article 21A read with Article 30(1) also confers a right on a
81
child belonging to minority community for free and
compulsory education in an educational institution
established and administered by the minority community for
their own children and such a constitutionally guaranteed
right cannot be taken away or abridged by law.
PART II
Article 21A and RTE Act
42. Right to education, so far as children of the age 6 to 14
years are concerned, has been elevated to the status of
fundamental right under Article 21A and a corresponding
obligation has been cast on the State, but through Sections
12(1)(b) and 12(1)(c) of the Act the constitutional obligation of
the State is sought to be passed on to private educational
institutions on the principle of social inclusiveness. Right to
Education has now been declared as a fundamental right of
children of the age 6 to 14 years and other comparable rights
or even superior rights like the Right to food, healthcare,
nutrition, drinking water, employment, housing, medical care
may also get the status of fundamental rights, which may be
on the anvil. Right guaranteed to children under Article 21A
is a socio-economic right and the Act was enacted to fulfil
that right. Let us now examine how these rights have been
82
recognized and given effect to under our Constitution and in
other countries.
43. Rights traditionally have been divided into civil rights,
political rights and socio-economic rights; the former rights
are often called the first generation rights and the latter, the
second generation rights. First generation rights have also
been described as negative rights because they impose a duty
and restraint on the state and generally no positive duties
flow from them with some exceptions. Over lapping of both
the rights are not uncommon. It is puerile to think that the
former rights can be realised in isolation of the latter or that
one overrides the others.
44. Socio-economic rights generally serve as a vehicle for
facilitating the values of equality, social justice and
democracy and the state is a key player in securing that goal.
The preamble of the Indian Constitution, fundamental rights
in Part III and the Directive Principles of State Policy in Part
IV are often called and described as "conscience of the
Constitution" and they reflect our civil, political and socio-
economic rights which we have to protect for a just and
humane society.
45. Supreme Court through various judicial
83
pronouncements has made considerable headway in the
realization of socio-economic rights and made them
justiciable despite the fact that many of those rights still
remain as Directive Principles of State Policy. Civil, political
and socio-economic rights find their expression in several
international conventions like U.N. Convention on Economic,
Social and Cultural Rights 1966 (ICESCR), International
Covenant on Civil and Political Rights 1966 (ICCPR),
Universal Declaration of Human Rights 1948 (UDHR), United
Nations Convention on Rights of Child 1989 (UNCRC)etc.
Reference to some of the socio-economic rights incorporated
in the Directive Principles of the State Policy in this
connection is useful. Article 47 provides for duty of the State
to improve public health. Principles enshrined in Articles 47
and 48 are not pious declarations but for guidance and
governance of the State policy in view of Article 37 and it is
the duty of the State to apply them in various fact situations.
46. Supreme Court has always recognized Right to health as
an integral part of right to life under Article 21 of the
Constitution. In Consumer Education & Research Centre
and Others v. Union of India and others [(1995) 3 SCC
84
42], this Court held that the right to life meant a right to a
meaningful life, which is not possible without having right to
healthcare. This Court while dealing with the right to
healthcare of persons working in the asbestos industry read
the provisions of Articles 39, 41 and 43 into Article 21. In
Paschim Banga Khet Majdoor Samity and Others v.
State of West Bengal and Another [(1996) 4 SCC 37], this
Court not only declared Right to health as a Fundamental
Right but enforced that right by asking the State to pay
compensation for the loss suffered and also to formulate a
blue-print for primary health care with particular reference to
the treatment of patients during emergency. A note of
caution was however struck in State of Punjab and Others
v. Ram Lubhaya Bagga and Others [(1998) 4 SCC 117]
stating that no State or country can have unlimited resources
to spend on any of its projects and the same holds good for
providing medical facilities to citizens. In Social Jurist, A
Lawyers Group v. Government Of NCT Of Delhi and
Others [(140) 2007 DLT 698], a Division Bench of Delhi High
Court, of which one of us, Justice Swatanter Kumar was a
party, held that the wider interpretations given to Article 21
read with Article 47 of the Constitution of India are not only
85
meant for the State but they are equally true for all, who are
placed at an advantageous situation because of the help or
allotment of vital assets. Dharamshila Hospital &
Research Centre v. Social Jurist & Ors.; SLP (C)
No.18599 of 2007 decided on 25.07.2011 filed against the
judgment was dismissed by this Court directing that
petitioners' hospitals to provide medical care to a specified
percentage of poor patients since some of the private
hospitals are situated on lands belonging to the State or
getting other concessions from the State.
47. Right to shelter or housing is also recognized as a
socio-economic right which finds its expression in Article 11
of the ICESCR but finds no place in Part-III or Part-IV of our
Constitution. However, this right has been recognized by this
Court in several judgments by giving a wider meaning to
Article 21 of the Constitution. In Olga Tellis and Others v.
Bombay Municipal Corporation and Others [(1985) 3 SCC
545], this Court was considering the claims of evictees from
their slums and pavement dwellings on the plea of
deprivation of right to livelihood and right to life. Their claim
was not fully accepted by this Court holding that no one has
86
the right to use a public property for private purpose without
requisite authorization and held that it is erroneous to
contend that pavement dwellers have the right to encroach
upon the pavements by constructing dwellings thereon. In
Municipal Corporation of Delhi v. Gurnam Kaur [(1989) 1
SCC 101], this Court held that Municipal Corporation of
Delhi has no legal obligation to provide pavement squatters
alternative shops for rehabilitation as the squatters had no
legally enforceable right. In Sodan Singh and Others v.
New Delhi Municipal Committee and Others [(1989) 4 SCC
155], this Court negated the claim of citizens to occupy a
particular place on the pavement to conduct a trade, holding
the same cannot be construed as a fundamental right. Socio-
economic compulsions in several cases did not persuade this
Court to provide reliefs in the absence of any constitutional or
statutory right. A different note was however struck in
Ahmedabad Municipal Corporation v. Nawab Khan Gulab
Khan and Others [(1997) 11 SCC 121] in the context of
eviction of encroachers from the city of Ahmedabad. This
Court held though Articles 38, 39 and 46 mandate the State,
as its economic policy, to provide socio-economic justice, no
person has a right to encroach and erect structures otherwise
87
on foot-paths, pavements or public streets. The Court has
however opined that the State has the constitutional duty to
provide adequate facilities and opportunities by distributing
its wealth and resources for settlement of life and erection of
shelter over their heads to make the right to life meaningful.
48. Right to work does not oblige the State to provide work
for livelihood which has also been not recognized as a
fundamental right. Mahatma Gandhi National Rural
Employment Guarantee Act, 2005 (Act 42 of 2005)
guarantees at least 100 days of work in every financial year to
every household whose adult members volunteer manual
work on payment of minimum wages. Article 41 of the
Constitution provides that State shall, within the limits of its
economic capacity and development, make effective provision
for securing the right to work, to education and to public
assistance in cases of unemployment, old age, sickness and
disablement, which right is also reflected in Article 6 of
ICESCR. Article 38 of Part-IV states that the State shall
strive to promote the welfare of the people and Article 43
states that it shall endeavour to secure a living wage and a
decent standard of life to all workers. In Bandhua Mukti
88
Morcha v. Union of India and Others [(1984) 3 SCC 161], a
Public Interest Litigation, an NGO highlighted the deplorable
condition of bonded labourers in a quarry in Haryana. It was
pointed out that a host of protective and welfare oriented
labour legislations, including Bonded Labour (Abolition) Act,
1976 and the Minimum Wages Act, 1948were not followed.
This Court gave various directions to the State Government to
enable it to discharge its constitutional obligation towards
bonded labourers. This Court held that right to live with
human dignity enshrined in Article 21 derives its life breath
from the Directive Principles of State Policy, particularly
clauses (e) and (f) of Article 39 and Articles 41 and 42 and
held that it must include protection of the health and
strength of workers, men and women and of the tender age of
children against abuse, opportunities and facilities for
children to develop in a healthy manner and in conditions of
freedom and dignity, educational facilities, just and humane
conditions of work and maternity relief.
49. The Constitutional Court of South Africa rendered
several path-breaking judgments in relation to socio-
economic rights. Soobramoney v. Minister of Health
89
(KwaZulu-Natal) [1998 (1) SA 765 (CC)] was a case
concerned with the right of emergency health services. Court
held that the State owes no duty to provide the claimant, a
diabetic sufferer, with kidney dialysis on a plea of socio-
economic right. Petitioner was denied dialysis by a local
hospital on the basis of a prioritization policy based on
limited resources. The Court emphasised that the
responsibility of fixing the health care budget and deciding
priorities lay with political organization and medical
authorities, and that the court would be slow to interfere with
such decisions if they were rational and "taken in good faith".
50. In Government of the Republic of South Africa and
Others v. Grootboom and others [2001 (1) SA 46 (CC)] was a
case where the applicants living under appalling conditions in
an informal settlement, had moved into private land from
which they were forcibly evicted. Camping on a nearby sports
field, they applied for an order requiring the government to
provide them with basic shelter. The Constitutional Court
did not recognize a directly enforceable claim to housing on
the part of the litigants, but ruled that the State is obliged to
implement a reasonable policy for those who are destitute.
90
The Court, however, limited its role to that of policing the
policy making process rather than recognizing an enforceable
individual right to shelter, or defining a minimum core of the
right to be given absolute priority.
51. Another notable case of socio-economic right dealt with
by the South African Court is Minister of Health and
others v. Treatment Action Campaign and others (TAC)
[2002 (5) SA 721 (CC)]. The issue in that case was whether
the state is obliged under the right of access to health care
(Sections 27(1) and (2) of 1996 Constitution) to provide the
anti-retroviral drug Nevirapine to HIV-positive pregnant
women and their new born infants. Referring the policy
framed by the State, the Court held that the State is obliged
to provide treatment to the patients included in the pilot
policy. The decision was the closest to acknowledging the
individual's enforceable right.
52. In Ex parte Chairperson of the Constitutional
Assembly: in re Certification of the Constitution of the
Republic of South Africa [1996 (4) SA 744 (CC)], the Court
made it clear that socio-economic rights may be negatively
protected from improper invasion, breach of the obligation,
91
occurs directly when there is a failure to respect the right or
indirectly when there is a failure to prevent the direct
entrenchment of the right of another, or a failure to respect
the existing protection of the right, by taking measures that
diminish the protection of private parties obligation, is not to
interfere with or diminish the enjoyment of the right
constitutionally protected. Equally important, in enjoyment
of that right, the beneficiary shall also not obstruct, destroy,
or make an inroad on the right guaranteed to others like non-
state actors.
53. Few of the other notable South African Constitutional
Court judgments are: Minister of Public Works and others
v. Kyalami Ridge Environmental Association and others
[2001 (7) BCLR 652 (CC)] and President of the Republic of
South Africa v. Modderklip Boerdery (Pty). Ltd. [2005 (5)
SA 3 (CC)].
54. South African Constitution, unlike many other
constitutions of the world, has included socio-economic
rights, health services, food, water, social security and
education in the Constitution to enable it to serve as an
instrument of principled social transformation enabling
92
affirmative action and horizontal application of rights. To
most of the social rights, the State's responsibility is limited
to take reasonable legislative and other measures within its
available resources to achieve the progressive realisation of
those rights [Sections 26(2), and 27(2)]. Few exceptions,
however, give rise to directly enforceable claims, namely, right
not to be evicted [Section 26(3)]; not to be refused emergency
medical treatment [Section 27(3)]; the rights of prisoners to
adequate nutrition and medical treatment [Section 35(2)] and
rights of Children (defined as those under 18 years) to basic
nutrition, shelter, basic health care and social services.
55. Social economic rights have also been recognized by
the constitutional courts of various other countries as well.
In Brown v. Board of Education [347 U.S. 483], the U.S.
Constitutional Court condemned the policy of segregation of
blacks in the American educational system. The Court held
that the private schools for black and white children are
inherently unequal and deprived children of equal rights.
56. In a Venenzuelan case Cruz del Valle Balle
Bermudez v. Ministry of Health and Social Action - Case
No.15.789 Decision No.916 (1999); the Court considered
93
whether those with HIV/AIDS had the right to receive the
necessary medicines without charge and identifying a positive
duty of prevention at the core of the right to health, it ordered
the Ministry to conduct an effective study into the minimum
needs of those with HIV/AIDS to be presented for
consideration in the Government's next budget. Reference
may also be made a judgment of the Canadian Constitution
Court in Wilson v. Medical Services Commission of
British Columbia [(53) D.L.R. (4th) 171].
57. I have referred to the rulings of India and other
countries to impress upon the fact that even in the
jurisdictions where socio-economic rights have been given the
status of constitutional rights, those rights are available only
against State and not against private state actors, like the
private schools, private hospitals etc., unless they get aid,
grant or other concession from the State. Equally important
principle is that in enjoyment of those socio-economic rights,
the beneficiaries should not make an inroad into the rights
guaranteed to other citizens.
REMOVAL OF OBSTACLES TO ACHIEVE SOCIO-
ECONOMIC RIGHTS
94
58. Socio-economic rights, I have already indicated, be
realized only against the State and the Statute enacted to
protect socio-economic rights is always subject to the rights
guaranteed to other non-state actors under Articles 19(1)(g),
30(1), 15(1), 16(1) etc. Parliament has faced many obstacles
in fully realizing the socio-economic rights enshrined in Part
IV of the Constitution and the fundamental rights guaranteed
to other citizens were often found to be the obstacles.
Parliament has on several occasions imposed limitations on
the enjoyment of the rights guaranteed under Part III of the
Constitution, through constitutional amendments.
59. Parliament, in order to give effect to Article 39 and to
remove the obstacle for realization of socio-economic rights,
inserted Article 31A vide Constitution (First Amendment) Act,
1951 and later amended by the Constitution (Fourth
Amendment) Act, 1955 and both the amendments were given
retrospective effect from the commencement of the
Constitution. The purpose of the first amendment was to
eliminate all litigations challenging the validity of legislation
for the abolition of proprietary and intermediary interests in
land on the ground of contravention of the provisions of
95
Articles 14, 19 and 31. Several Tenancy and Land Reforms
Acts enacted by the State also stood protected under Article
31A from the challenge of violation of Articles 14 and 19.
60. Article 31B also saves legislations coming under it
from inconsistency with any of the fundamental rights
included in Part III for example Article 14, Article 19(1)(g) etc.
Article 31B read with Ninth Schedule protects all laws even if
they are violative of fundamental rights. However, in I.R.
Coelho (Dead) by LRs v. State of Tamil Nadu and Others
[(2007) 2 SCC 1], it was held that laws included in the Ninth
Schedule can be challenged, if it violates the basic structure
of the Constitution which refer to Articles 14, 19, 21 etc.
61. Article 31C was inserted by the Constitution (Twenty-
fifth Amendment) Act, 1971 which gave primacy to Article
39(b) and (c) over fundamental rights contained under Article
14 and 19. Article 31C itself was amended by the
Constitution (Forty-second Amendment) Act, 1976 and
brought in all the provisions in Part-IV, within Article 31C for
protecting laws from challenge under article 14 and 19 of the
Constitution.
96
62. I have referred to Articles 31A to 31C only to point out
how the laws giving effect to the policy of the State towards
securing all or any of the principles laid down in Part-IV stood
saved from the challenge on the ground of violation or
infraction of the fundamental rights contained in Articles 14
and 19. The object and purpose of those constitutional
provisions is to remove the obstacles which stood in the way
of enforcing socio-economic rights incorporated in Part-IV of
the Constitution and also to secure certain rights, guaranteed
under Part III of the Constitution.
63. Rights guaranteed under Article 19(1)(g) can also be
restricted or curtailed in the interest of general public
imposing reasonable restrictions on the exercise of rights
conferred under Article 19(1)(g). Laws can be enacted so as to
impose regulations in the interest of public health, to prevent
black marketing of essential commodities, fixing minimum
wages and various social security legislations etc., which all
intended to achieve socio-economic justice. Interest of
general public, it may be noted, is a comprehensive
expression comprising several issues which affect public
welfare, public convenience, public order, health, morality,
97
safety etc. all intended to achieve socio-economic justice for
the people.
64. The law is however well settled that the State cannot
travel beyond the contours of Clauses (2) to (6) of Article 19 of
the Constitution in curbing the fundamental rights
guaranteed by Clause (1), since the Article guarantees an
absolute and unconditional right, subject only to reasonable
restrictions. The grounds specified in clauses (2) to (6) are
exhaustive and are to be strictly construed. The Court, it
may be noted, is not concerned with the necessity of the
impugned legislation or the wisdom of the policy underlying
it, but only whether the restriction is in excess of the
requirement, and whether the law has over-stepped the
Constitutional limitations. Right guaranteed under Article
19(1)(g), it may be noted, can be burdened by constitutional
limitations like sub-clauses (i) to (ii) to Clause (6).
65. Article 19(6)(i) enables the State to make law relating
to professional or technical qualifications necessary for
practicing any profession or to carry on any occupation, trade
or business. Such laws can prevent unlicensed, uncertified
medical practitioners from jeopardizing life and health of
98
people. Sub clause (ii) to Article 19(6) imposes no limits upon
the power of the State to create a monopoly in its favour.
State can also by law nationalize industries in the interest of
general public. Clause (6)(ii) of Article 19 serves as an
exception to clause (1)(g) of Article 19 which enable the State
to enact several legislations in nationalizing trades and
industries. Reference may be made to Chapter-4 of the Motor
Vehicles Act, 1938, The Banking Companies (Acquisition and
Transfer of Undertakings) Act, 1970, General Insurance
Business (Nationalization) Act, 1972 and so on. Sub-clause
6(ii) of Article 19 exempts the State, on the conditions of
reasonableness, by laying down that carrying out any trade,
business, industry or services by the State Government would
not be questionable on the ground that it is an infringement
on the right guaranteed under Article 19(1)(g).
66. I have referred to various provisions under sub-
clauses (i) and (ii) of Article 19(6) to impress upon the fact
that it is possible to amend the said Article so that socio-
economic rights could be realized by carving out necessary
constitutional limitations abrogating or abridging the right
guaranteed under Article 19(1)(g).
99
67. Constitutional amendments have also been made to
Articles 15 and 16 so as to achieve socio-economic justice.
Articles 15 and 16 give power to the State to make positive
discrimination in favour of the disadvantaged and
particularly, persons belonging to Scheduled Castes and
Scheduled Tribes. Socio-economic empowerment secures
them dignity of person and equality of status, the object is to
achieve socio-economic equality.
68. Faced with many obstacles to achieve the above
objectives and the Directive Principles of the State Policy,
Articles 15 and 16 of the Constitution had to be amended on
several occasions so as to get over the obstacles in achieving
the socio-economic justice. In State of Madras v. Shrimati
Champakam Dorairajan [(1951) 2 SCR 525], this Court laid
down the law that Article 29(2) was not controlled by Article
46 of the Directive Principles of the State Policy and that the
Constitution did not intend to protect the interest of the
backward classes in the matter of admission to educational
institutions. In order to set right the law and to achieve
social justice, Clause (4) was added to Article 15 by the
Constitutional (First Amendment) Act, 1951 enabling the
100
State to make special provision for the advancement of any
socially and educationally backward classes of citizens or for
the Scheduled Castes and Scheduled Tribes. The object of
Clause (4) was to bring Articles 15 and 29 in line with Articles
16(4), 46 and 340 of the Constitution, so as to make it
constitutional for the State to reserve seats for backward
classes citizens, Scheduled Castes and Scheduled Tribes in
the public educational institutions, as well as to make special
provisions, as may be necessary, for the advancement, e.g. to
provide housing accommodation for such classes. In other
words, Article 15(4) enables the State to do what would
otherwise have been unconstitutional. Article 15(4) has to be
read as a proviso or an exception to Article 29(2) and if any
provision is defined by the provisions of Article 15(4), its
validity cannot be questioned on the ground that it violates
Article 29(2). Under Article 15(4), the State is entitled to
reserve a minimum number of seats for members of the
backward classes, notwithstanding Article 29(2) and the
obstacle created under Article 29(2) has been removed by
inserting Article 15(4).
69. The Parliament noticed that the provisions of Article
101
15(4) and the policy of reservation could not be imposed by
the State nor any quota or percentage of admission be carved
out to be appropriated by the State in minority or non-
minority unaided educational institution, since the law was
clearly declared in Pai Foundation and Inamdar cases. It
was noticed that the number of seats available in aided or
State maintained institutions particularly in respect of
professional educational institutions were limited in
comparison to those in private unaided institutions. Article
46 states that the State shall promote, with special care, the
educational and economic interests of the weaker sections of
the people, and, in particular of the Scheduled Castes and
Scheduled Tribes, and shall protect them from social
injustice. Access to education was also found to be an
important factor and in order to ensure advancement of
persons belonging to Scheduled Castes, Scheduled Tribes,
socially and economically backward classes, it was proposed
to introduce Clause (5) to Article 15 to promote educational
advancement of socially and educationally backward classes
of citizens i.e. OBCs, Scheduled Castes and Scheduled Tribes
and the weaker sections of the society by securing admission
in unaided educational institutions and other minority
102
educational institutions referred to in Clause (1) of Article 30
of the Constitution.
70. The Parliament has, therefore, removed the obstacles
created by the law as ruled by the Court in Pai Foundation
and Inamdar so as to carry out the obligation under the
Directive Principles of the State Policy laid down under Article
46. Later, the Parliament enacted the Central Educational
Institutions (Reservation and Admission) Act, 2006 (for short
`the CEI Act'), but the Act never intended to give effect to the
mandate of the newly introduced Clause (5) to Article 15
dealing with admissions in both aided and unaided private
educational institutions.
71. Constitutional validity of Clause (5) to Article 15 and
the CEI Act came up for consideration before a Constitutional
Bench of this Court in Ashoka Kumar Thakur v. Union of
India and Others [(2008) 6 SCC 1]. CEI Act was enacted by
the Parliament under Article 15(5), for greater access to
higher education providing for 27 per cent reservation for
"Other Backward Classes" to the Central Government
controlled educational institutions, but not on privately
managed educational institutions. Constitutional validity of
103
Article 15(5) was challenged stating that it had violated the
basic structure doctrine. The majority of the Judges in
Ashok Kumar Thakur's case declined to pronounce on the
question whether the application of Article 15(5) to private
unaided institutions violated the basic structure of the
Constitution, in my view, rightly because that issue did not
arise for consideration in that case. Justice Dalveer
Bhandari, however, examined the validity of Article 15(5) with
respect to private unaided institutions and held that an
imposition of reservation of that sort would violate Article
19(1)(g) and thus the basic structure doctrine. Article 19(1)
(g), as such, it may be pointed out, is not a facet of the basic
structure of the Constitution, and can be constitutionally
limited in its operation, with due respect, Justice Bhandari
has overlooked this vital fact. Pai Foundation as well as
Inamdar held that Article 19(1)(g) prevents the State from
creating reservation quotas or policy in private unaided
professional educational institutions and, as indicated earlier,
it was to get over that obstacle that Clause (5) was inserted in
Article 15. In Ashok Kumar Thakur, the majority held that
Clause (5) to Article 15 though, moderately abridges or alters
the equality principle or the principles under Article 19(1)(g),
104
insofar as it dealt with State maintained and aided
institutions, it did not violate the basic structure of the
Constitution. I have referred to Articles 15(4) and 15(5) and
the judgment in Ashok Kumar Thakur to highlight the fact
that the State in order to achieve socio-economic rights, can
remove obstacles by limiting the fundamental rights through
constitutional amendments.
72. Applicability of Article 15(5), with regard to private
unaided non-minority professional institutions, came up for
consideration in Medical Association case. A two judges
Bench of this Court has examined the constitutional validity
of Delhi Act 80 of 2007 and the notification dated 14.8.2008
issued by the Government of NCT, Delhi permitting the Army
College of Medical Sciences to allocate 100% seats to the
wards of army personnel. The Court also examined the
question whether Article 15(5) has violated the basic
structure of the Constitution. The Court proceeded on the
basis that Army Medical College is a private non-minority,
unaided professional institution. Facts indicate that the
College was established on a land extending to approximately
25 acres, leased out by the Ministry of Defence, Government
105
of India for a period of 30 years extendable to 99 years.
Ministry of Defence also offered various facilities like
providing clinical training at Army Hospital, NCT, Delhi and
also access to the general hospitality. The constitutional
validity of Article 15(5) was upheld holding that Clause (5) of
Article 15 did not violate the basic structure of the
Constitution. While reaching that conclusion, Court also
examined the ratio in Pai Foundation as well as in
Inamdar. Some of the findings recorded in Medical
Association case, on the ratio of Pai Foundation and
Inamdar, in my view, cannot be sustained.
73. Medical Association case, it is seen, gives a new
dimension to the expression "much of difference" which
appears in paragraph 124, page 601 of Inamdar. Learned
Judges in Medical Association case concluded in Para 80 of
that judgment that the expression "much of a difference"
gives a clue that there is an "actual difference" between the
rights of the minority unaided institutions under clause (1) of
Article 30 and the rights of non-minority unaided institutions
under sub-clause (g) of Clause (1) of Article 19. Let us refer
to paragraph 124 of Inamdar to understand in which context
106
the expression "much of difference" was used in that
judgment, which is extracted below:
"So far as appropriation of quota by the State
and enforcement of its reservation policy is
concerned, we do not see much of a difference
between non-minority and minority unaided
educational institutions. We find great force in the
submission made on behalf of the petitioners that
the states have no power to insist on seat-sharing in
unaided private professional educational
institutions by fixing the quota of seats between the
Management and the State." (emphasis supplied)
Inamdar was expressing the view that so far as
"appropriation of quota by the State" and "enforcement of its
reservation policy" is concerned, they do not see much of
difference between non-minority and minority unaided
educational institutions. Medical Association case, on the
other hand, in my view, has gone at a tangent and gave a new
dimension and meaning to paragraph 124 of Inamdar, which
is evident from the following paragraph of that judgment:
"81. xxx xxx
xxx xxx
(i) that there is not much of a difference in
terms, between the two kinds of institutions
under consideration, based on an overall
quantitative assessment of all the rights put
together, with a few differences that would
107
still have operational significance; or
(ii) that in all respects the two classes of
educational institutions are more or less the
same, with the differences being minor and
not leading to any operational significance."
(emphasis supplied)
Medical Association case concluded that the expression
"much of a difference" could be understood only in the way
they have stated in paragraph 81(i) which, with due respect,
is virtually re-writing paragraph 124 of Inamdar, a seven
Judges' Judgment which is impermissible. Final conclusion
reached by the learned judges in paragraph 123 for inclusion
of Clause (5) to Article 15 reads as follows:
"123. Clause (5) of Article 15 is an enabling
provision and inserted by the Constitution (Ninety-
third Amendment) Act, 2005 by use of powers of
amendment in Article 368. The Constitution
(Ninety-third Amendment) Act, 2005 was in
response to this Court's explanation, in P.A.
Inamdar, of the ratio in T.M.A. Pai, that imposition
of reservations on non-minority unaided
educational institutions, covered by sub-clause (g)
of clause (1) of Article 19, to be unreasonable
restrictions and not covered by clause (6) of Article
19. The purpose of the amendment was to clarify
or amend the Constitution in a manner that what
was held to be unreasonable would now be
reasonable by virtue of the constitutional status
given to such measures."
74. Referring to Pai Foundation case, the Court also
108
stated, having allowed the private sector into the field of
education including higher education, it would be
unreasonable, pursuant to clause (6) of Article 19, for the
State to fix the fees and also impose reservations on private
unaided educational institutions. Nevertheless, the Court
opined that taking into consideration the width of the original
powers under Clause (6) of Article 19, one would necessarily
have to find the State would at least have the power to make
amendments to resurrect some of those powers that it had
possessed to control the access to higher education and
achieve the goals of egalitarianism and social justice.
75. Article 15(5), it may be noted, gives no protection to
weaker sections of the society, except members belonging to
Scheduled Castes/Scheduled Tribes and members of Other
Backward Community.
76. Constitutional amendments carried out to Article 16 in
securing social justice may also be examined in this context.
Clause (1) of Article 16 guarantees equality of opportunity for
all citizens in matters relating to employment or appointment
to any office under the State. Article 16(4) is a special
provision confined to the matters of employment in the
109
services under the State which states that nothing in Article
16(1) shall prevent the State from making any provision for
the reservation of appointments or posts in favour of any
backward class of citizens which is not adequately
represented in the services under the State. Article 46
obliges the State to take steps for promoting the economic
interests of the weaker sections and, in particular, of the
Scheduled Castes and Scheduled Tribes. The expression
`weaker sections' in Article 46 is wider than `backward class'.
The backward citizens in Article 16(4) do not comprise of all
the weaker sections of the people but only those which are
socially, educationally and economically backward, and which
are not adequately represented in the services under the
State. Further, the expression `weaker sections' can also take
within its compass individuals who constitute weaker
sections or weaker parts of the society.
77. In Indra Sawhney v. Union of India and Others
[(1992) Supp. 3 SCC 212], this Court held that, as the law
stood then, there could be no reservation in promotion. It
was held that reservation of appointments or posts under
Article 16(4) is confined to initial appointments only. To set
110
right the law and to advance social justice by giving
promotions to Scheduled Castes and Scheduled Tribes Clause
(4A) was added to Article 16 by the Constitution (Seventy-
seventh Amendment) Act, 1995. Consequently, the hurdle or
obstacle which stood in the way was removed by the
Constitutional amendment.
78. The scope of the above provision came up for
consideration in Jagdish Lal and Others v. State of
Haryana and Others [(1997) 6 SCC 538], where this Court
held that the principle of seniority according to length of
continuous service on a post or service will apply and that
alone will have to be looked into for the purpose of seniority
even though they got promotion ignoring the claim of seniors.
It was said that reserved candidates who got promotion
ignoring the claim of services in general category will be
seniors and the same cannot affect the promotion of general
candidates from the respective dates of promotion and
general candidates remain junior in higher echelons to the
reserved candidates. The above position was, however,
overruled in Ajit Singh and Others v. State of Punjab and
Others [(1999) 7 SCC 209], wherein it was decided that the
111
reserved category candidates cannot count seniority in the
promoted category from the date of continuous officiation vis-
à-vis the general candidates who were senior to them in the
lower category and who were later promoted. Ajit Singh
case was declaring the law as it stood. Consequently, the
Parliament, in order to give continuous appreciation in
promotion, inserted the words "with consequential seniority"
in Clause (4A) to Article 16 by Constitution (Eighty-fifth
Amendment) Act, 2001 (which was made effective from
17.6.1995). In the light of Article 16(4A), the claims of
Scheduled Castes and Scheduled Tribes for promotion shall
be taken into consideration in making appointment or giving
promotion.
79. Constitution (Eighty-first Amendment) Act, 2000,
which came into effect on 9.6.2000, inserted Clause (4B) to
Article 16, which envisaged that the unfilled reserved
vacancies in a year to be carried forward to subsequent years
and that these vacancies are to be treated as distinct and
separate from the current vacancies during any year, which
means that 50% rule is to be applied only to normal
vacancies and not to the posts of backlog of reserved
112
vacancies. Inadequacy and representation of backward
classes, Scheduled Castes and Scheduled Tribes are the
circumstances which enabled the State Government to enact
Articles 16(4), 16(4A) and 16(4B).
80. The constitutional validity of Article 16(4A) substituted
by the Constitution (Eighty-fifth Amendment) Act, 2001 came
up for consideration before this Court in M. Nagaraj & Ors.
v. Union of India [(2006) 8 SCC 212]. The validity of the
Constitution (Seventy-seventh Amendment) Act, 1995, the
Constitution (Eighty-first Amendment) Act, 2000, the
Constitution (Eighty-second Amendment) Act, 2000 and the
Constitution (Eighty-fifth Amendment) Act, 2001 were also
examined and held valid. This Court held that they do not
infringe either the width of the Constitution amending power
or alter the identity of the Constitution or its basic structure.
This Court held that the ceiling-limit of 50%, the concept of
creamy layer and the compelling reasons, namely,
backwardness, inadequacy of representation and overall
administrative efficiency are all constitutional requirements
without which the structure of equality of opportunity in
Article 16 would collapse.
113
81. I have referred extensively to the constitutional
amendments effected to Articles 31A to 31C, Articles 15, 16
and 19 to show that whenever the Parliament wanted to
remove obstacles so as to make affirmative action to achieve
socio-economic justice constitutionally valid, the same has
been done by carrying out necessary amendments in the
Constitution, not through legislations, lest they may make an
inroad into the fundamental rights guaranteed to the citizens.
Rights guaranteed to the unaided non-minority and minority
educational institutions under Article 19(1)(g) and Article
30(1) as explained in Pai Foundation and reiterated in
Inamdar have now been limited, restricted and curtailed so
as to impose positive obligation on them under Section 12(1)
(c) of the Act and under Article 21A of the Constitution, which
is permissible only through constitutional amendment.
82. Constitutional principles laid down by Pai Foundation
and Inamdar on Articles 19(1)(g), 29(2) and 30(1) so far as
unaided private educational institutions are concerned,
whether minority or non-minority, cannot be overlooked and
Article 21A, Sections 12(1)(a), (b) and 12(1)(c) have to be
tested in the light of those constitutional principles laid down
by Pai Foundation and Inamdar because Unnikrishnan
114
was the basis for the introduction of the proposed Article 21A
and the deletion of clause (3) from that Article. Interpretation
given by the courts on any provision of the Constitution gets
inbuilt in the provisions interpreted, that is, Articles 19(1)(g),
29(2) and 30.
83. We have to give due respect to the eleven Judges
judgment in Pai Foundation and the seven Judges judgment
in Inamdar, the principles laid down in those judgments still
hold good and are not whittled down by Article 21A, nor any
constitutional amendment was effected to Article 19(1)(g) or
Article 30(1). Article 21A, it may be noted was inserted in the
Constitution on 12.12.2002 and the judgment in Pai
Foundation was delivered by this Court on 31.10.2002 and
25.11.2002. Parliament is presumed to be aware of the law
declared by the Constitutional Court, especially on the rights
of the unaided non-minority and minority educational
institutions, and in its wisdom thought if fit not to cast any
burden on them under Article 21A, but only on the State.
Criticism of the judgments of the Constitutional Courts has to
be welcomed, if it is healthy. Critics, it is seen often miss a
point which is vital, that is, Constitutional Courts only
115
interpret constitutional provisions and declare what the law
is, and not what law ought to be, which is the function of the
legislature. Factually and legally, it is not correct to
comment that many of the amendments are necessitated to
overcome the judgments of the Constitutional Courts.
Amendments are necessitated not to get over the judgments
of the Constitutional Courts, but to make law constitutional.
In other words, a law which is otherwise unconstitutional is
rendered constitutional. An unconstitutional statute is not a
law at all, whatever form or however solemnly it is enacted.
When legislation is declared unconstitutional by a
Constitutional Court, the legislation in question is not vetoed
or annulled but declared never to have been the law. People,
acting solemnly in their sovereign capacity bestow the
supreme dominion on the Constitution and, declare that it
shall not be changed except through constitutionally
permissible mode. When courts declare legislative acts
inconsistent with constitutional provisions, the court is giving
effect to the will of the people not due to any judicial
supremacy, a principle which squarely applies to the case on
hand.
116
84. In S.P. Gupta v. President of India and Others
[1981 SCC Supp. (1) 87] [para 195], Justice Fazal Ali pointed
out as follows:
" The position so far as our country is concerned is
similar to that of America and if any error of
interpretation of a constitutional provision is
committed by the Supreme Court or any
interpretation which is considered to be wrong by
the Government can be rectified only by a
constitutional amendment which is a very
complicated, complex, delicate and difficult
procedure requiring not merely a simple majority
but two-third majority of the Members present and
voting. Apart from the aforesaid majority, in most
cases the amendment has to be ratified by a
majority of the States. In these circumstances,
therefore, this Court which lays down the law of the
land under Article 141 must be extremely careful
and circumspect in interpreting statutes, more so
constitutional provisions, so to obviate the necessity
of a constitutional amendment every time which, as
we have already mentioned, is an extremely onerous
task."
Reference may also be made to the judgment in Bengal
Immunity Company Limited v. State of Bihar and Others
[AIR 1955 SC 661].
85. In People's Union for Civil Liberties (PUCL) and
Anr. v. Union of India (UOI) and Anr. [2003 (4) SCC 399] in
para 112 this Court has held "It is a settled principle of
constitutional jurisprudence that the only way to render a
judicial decision ineffective is to enact a valid law by way of
117
amendment......."
86. In Smit v. Allwright [321 U.S. 649 (1944)], the Court
held "In constitutional questions, where correction depends
upon amendment, and not upon legislative action, this Court
throughout its history has freely exercised its power to re-
examine the basis of its constitutional decisions. This has long
been accepted practice and this practice has continued to this
day."
87. Constitutional interpretation given by this Court as to
what the law is, led to bringing in several amendments either
to set right the law or abridge the constitutional rights
guaranteed in Part III of the Constitution, some of which I
have already referred to in the earlier part of this judgment.
88. Principles laid down by Pai Foundation and in
Inamdar while interpreting Articles 19(1)(g), 29(2) and 30(1)
in respect of unaided non-minority and minority educational
institutions like schools upto the level of under-graduation
are all weighty and binding constitutional principles which
cannot be undone by statutory provisions like Section 12(1)
(c), since those principles get in-built in Article 19(1)(g),
118
Article 29(2) and Article 30(1) of the Constitution. Further
Parliament, while enacting Article 21A, never thought if fit to
undo those principles and thought it fit to cast the burden on
the State.
PART III
OBLIGATIONS/RESPONSIBILITIES OF NON-STATE
ACTORS IN REALIAZATION OF CHILDREN'S RIGHTS:
89. We may, however, also examine whether the private
unaided educational institutions have any
obligations/responsibilities in realization of children's rights.
Articles 21A, 45, 51A(k), Section 12 of the Act and various
International Conventions deal with the obligations and
responsibilities of state and non-state actors for realization of
children's rights. Social inclusiveness is stated to be the
motto of the Act which was enacted to accomplish the State's
obligation to provide free and compulsory education to
children of the age 6 to 14 years, in that process,
compulsorily co-opting, private educational institutions as
well. A shift in State's functions, to non-state actors in the
field of health care, education, social services etc. has been
keenly felt due to liberalization of economy and privatization
119
of state functions.
90. The Universal Declaration of Human Rights, 1948
(UDHR), the International Covenant on Civil and Political
Rights (ICCPR) and the International Covenant on Economic,
Social and Cultural Rights, 1966 (ICESCR), UN Convention
on the Rights of the Child (UNCRC), 1989 throw considerable
light on the duties and responsibilities of State as well as
non-state actors for the progressive realization of children
rights. Article 6(1) of ICCPR states: "Every human being has
the inherent right to life ... No one shall be arbitrarily
deprived of this right", meaning thereby that the arbitrary
deprivation of a person's life will be a violation of
international human rights norm whether it is by the State or
non-state actors. UDHR, ICCPR, ICESCR, UNCRC and other
related international covenants guarantee children civil,
political, economical, social and cultural rights. Article 4 of
the UNCRC requires the State to undertake all appropriate
legislative, administrative and other measures for the
implementation of the rights recognized in the Convention.
91. Article 2.1 of the ICESCR, has also approved the above
obligation of the State, which reads as follows:
120
"Each State Party to the present Covenant
undertakes to take steps, individually and through
international assistance and co-operation, especially
economic and technical, to the maximum of its
available resources, with a view to achieving
progressively the full realization of the rights
recognized in the present Covenant by all
appropriate means, including particularly the
adoption of legislative measures."
Non-state actor's obligation is also reflected in preamble of
ICCPR and ICESCR which is as follows:
"The individual, having duties to other
individuals and to the community to which he
belongs, is under a responsibility to strive for the
promotion and observance of the rights recognized
in the present Covenant."
Preamble of UDHR also reads as follows:
"... every individual and every organ of society,
keeping this Declaration constantly in mind, shall
strive by teaching and education, to promote respect
for these rights and freedoms and by progressive
measures, national and international, to secure
their universal and effective recognition and
observance..."
Non-state actor's "duty to the community" and to the
"individuals in particular" are accordingly highlighted.
Article 30 of UDHR highlights the necessity to protect
and safeguard the right of others which reads as follows :-
"Nothing in this Declaration may be interpreted
as implying for any state, group or person any right
121
to engage in any activity or to perform any act aimed
at the destruction of any of the rights and freedoms
set forth herein."
92. In this connection reference may be made to Article
28(1)(a) of UNCRC which reads as follows: "States Parties
recognize the right of the child to education, and with a view to
achieving this right progressively and on the basis of equal
opportunity, they shall, in particular: make primary education
compulsory and available free to all";
Article 29 is also relevant for our purpose which reads as
follow:-
1. States Parties agree that the education of the
child shall be directed to:
(a) The development of the child's personality,
talents and mental and physical abilities to their
fullest potential;
(b) The development of respect for human rights and
fundamental freedoms, and for the principles
enshrined in the Charter of the United Nations;
(c) The development of respect for the child's
parents, his or her own cultural identity, language
and values, for the national values of the country in
which the child is living, the country from which he
or she may originate, and for civilizations different
from his or her own;
(d) The preparation of the child for responsible life in
a free society, in the spirit of understanding, peace,
tolerance, equality of sexes, and friendship among
all peoples, ethnic, national and religious groups
and persons of indigenous origin;
122
(e) The development of respect for the natural
environment.
2. No part of the present article or article 28 shall
be construed so as to interfere with the liberty of
individuals and bodies to establish and direct
educational institutions, subject always to the
observance of the principle set forth in paragraph 1
of the present article and to the requirements that
the education given in such institutions shall
conform to such minimum standards as may be laid
down by the State.
93. Provisions referred to above and other provisions of
International Conventions indicate that the rights have been
guaranteed to the children and those rights carry
corresponding State obligations to respect, protect and fulfill
the realization of children's rights. The obligation to protect
implies the horizontal right which casts an obligation on the
State to see that it is not violated by non-state actors. For
non-state actors to respect children's rights cast a negative
duty of non-violation to protect children's rights and a
positive duty on them to prevent the violation of children's
rights by others, and also to fulfill children's rights and take
measures for progressive improvement. In other words, in
the spheres of non-state activity there shall be no violation of
children's rights.
123
94. Article 24 of the Indian Constitution states that no
child below the age of 14 years shall be employed to work in
any factory or be engaged in any hazardous employment.
The Factories Act, 1948 prohibits the employment of children
below the age of 14 years in any factory. Mines Act, 1952
prohibits the employment of children below 14 years. Child
Labour (Prohibition and Regulation) Act, 1986 prohibits
employment of children in certain employments. Children
Act, 1960 provides for the care, protection, maintenance,
welfare, training, education and rehabilitation of neglected or
delinquent children. Juvenile Justice (Care and Protection of
Children) Act, 1986 (the Amendment Act 33 of 2006) provide
for the care, protection, development and rehabilitation of
neglected and delinquent juveniles. There are also other
legislations enacted for the care and protection of children
like Immoral Trafficking Prevention Act, 1956, Prohibition of
Child Marriage Act, 2006 and so on. Legislations referred to
above cast an obligation on non-state actors to respect and
protect children's rights and not to impair or destroy the
rights guaranteed to children, but no positive obligation to
make available those rights.
124
95. Primary responsibility for children's rights, therefore,
lies with the State and the State has to respect, protect and
fulfill children's rights and has also got a duty to regulate the
private institutions that care for children, to protect children
from violence or abuse, to protect children from economic
exploitation, hazardous work and to ensure human treatment
of children. Non-state actors exercising the state functions
like establishing and running private educational institutions
are also expected to respect and protect the rights of the
child, but they are, not expected to surrender their rights
constitutionally guaranteed.
96. Article 21A requires non-state actors to achieve the
socio-economic rights of children in the sense that they shall
not destroy or impair those rights and also owe a duty of
care. The State, however, cannot free itself from obligations
under Article 21A by offloading or outsourcing its obligation
to private State actors like unaided private educational
institutions or to coerce them to act on the State's dictate.
Private educational institutions have to empower the
children, through developing their skills, learning and other
capacities, human dignity, self-esteem and self-confidence
125
and to respect their constitutional rights.
97. I have in the earlier part of the judgment referred to
Article 28(1) and Article 29 of UNCRC which cast an
obligation on the State to progressively achieve the rights of
children and also to make primary education compulsory and
available free to all but all the same make it clear that no part
of Articles 28 and 29 be construed to interfere with the liberty
of non-state actors. They are expected to observe the
principles set forth in Para 1 of Article 29 and also to conform
to such minimum standards as laid down by the state.
98. South African Constitution Bench in Governing Body
of the Juma Musjid Primary School v. Minister for
Education [[2011] ZACC 13] dealt with the interplay between
private rights and the State's obligation to provide right to
education. In that case, the Court held that the primary
positive obligation to provide the right to education resides on
the Government and the purpose of Section 8(2) of the
Constitution is not to obstruct private autonomy or to impose
on a private party the duties of the state in protecting the Bill
of Rights. That was a case involving balancing of proprietary
rights of a trust seeking to evict a public school in order to
126
establish an independent school. One of the pleas raised by
the evictees was that the evictor trust also had an obligation
towards the right to education of the learners which it could
not ignore. The Constitutional Court held that the only
obligation of a private party as regards socio-economic rights,
like right to education, is a negative obligation i.e. not to
unreasonably interfere with the realization of the right and
that there is no positive obligation cast on them to protect the
right by surrendering their rights.
99. Pai Foundation and Inamdar also cast a negative
obligation on the private educational institutions in the sense
that there shall be no profiteering, no demand of excessive
fee, no capitation fee, no maladministration, no cross subsidy
etc. Further, this Court, while interdicting the State in
appropriating seats in private educational institutions,
restrained them from interfering with the autonomy of those
institutions and adopted a balancing approach laying down
the principle of voluntariness, co-operation, concession, and
so on.
100. Pai Foundation and Inamdar have categorically
held that any action of the State to regulate or control
127
admissions in the unaided professional educational
institutions, so as to compel them to give up a share of the
available seats to the candidates chosen by the State, as if it
was filling the seats available to be filled up at its discretion
in such private institutions, would amount to nationalization
of seats. Such imposition of quota of State seats or enforcing
reservation policy of the State on available seats in unaided
professional institutions, it was held, are acts constituting
serious encroachment on the right and autonomy of private
unaided professional educational institutions and such
appropriation of seats cannot be held to be a regulatory
measure in the interest of minority within the meaning of
Article 30(1) or a reasonable restriction within the meaning of
Article 19(6) of the Constitution, so far as the unaided
minority institutions are concerned.
PART IV
101. Article 21A has used the expression "State shall
provide" not "provide for" hence the constitutional obligation
to provide education is on the State and not on non-state
actors, the expression is clear and unambiguous and to
interpret that expression to mean that constitutional
128
obligation or responsibility is on private unaided educational
institutions also, in my view, doing violence to the language
of that expression. The obligation of the State to provide free
and compulsory education is without any limitation.
Parliament in its wisdom has not used the expression
"provide for". If the preposition "for" has been used then the
duty of the State would be only to provide education to those
who require it but to provide for education or rather to see
that it is provided. In this connection it is useful to refer to
the judgment of the Supreme Court of Ireland in Crowley v.
Ireland [(1980) IR 102], where the expression "provide for"
came up for interpretation. It was held that the use of the
preposition "for" keeps the State at one remove from the
actual provision of education indicating that once the State
has made an arrangement for the provision of education
provided the buildings, pay teachers and set the curriculum -
it is absolved of the responsibility when the education is not
actually delivered. The absence of the preposition "for" in
Article 21A makes the duty on the State imperative. State
has, therefore, to "provide" and "not provide for" through
unaided private educational institutions.
129
102. Article 21A has used the expression "such manner"
which means the manner in which the State has to discharge
its constitutional obligation and not offloading those
obligations on unaided educational institutions. If the
Constitution wanted that obligation to be shared by private
unaided educational institutions the same would have been
made explicit in Article 21A. Further, unamended Article 45
has used the expression "state shall endeavour.....for" and
when Article 21A was inserted, the expression used therein
was that the "State shall provide" and not "provide for" the
duty, which was directory earlier made mandatory so far as
State is concerned. Article 21 read with 21A, therefore, cast
an obligation on the State and State alone.
103. The State has necessarily to meet all expenses of
education of children of the age 6 to 14 years, which is a
constitutional obligation under Article 21A of the
Constitution. Children have also got a constitutional right to
get free and compulsory education, which right can be
enforced against the State, since the obligation is on the
State. Children who opt to join an unaided private
educational institution cannot claim that right as against the
unaided private educational institution, since they have no
130
constitutional obligation to provide free and compulsory
education under Article 21A of the Constitution. Needless to
say that if children are voluntarily admitted in a private
unaided educational institution, children can claim their
right against the State, so also the institution. Article 51A(k)
of the Constitution states that it shall be the duty of every
citizen of India, who is a parent or guardian, to provide
opportunities for education to his child. Parents have no
constitutional obligation under Article 21A of the
Constitution to provide free and compulsory education to
their children, but only a constitutional duty, then one fails
to see how that obligation can be offloaded to unaided private
educational institutions against their wish, by law, when they
have neither a duty under the Directive Principles of State
policy nor a constitutional obligation under Article 21A, to
those 25% children, especially when their parents have no
constitutional obligation.
104. In Avinash Mehrotra v. Union of India & Others
[{2009} 6 SCC 398], this Court held that Article 21A imposes
a duty on the State, while Article 51A(k) places burden on the
parents to provide free and compulsory education to the
children of the age 6 to 14 years. There exists a positive
131
obligation on the State and a negative obligation on the non-
state actors, like private educational institutions, not to
unreasonably interfere with the realization of the children's
rights and the state cannot offload their obligation on the
private unaided educational institutions.
105. I am, therefore, of the considered view that Article
21A, as such, does not cast any obligation on the private
unaided educational institutions to provide free and
compulsory education to children of the age 6 to 14 years.
Article 21A casts constitutional obligation on the State to
provide free and compulsory education to children of the age
6 to 14 years.
CONSTITUTIONALLY IMPERMISSIBLE PROCEDURE
ADOPTED TO ACHIEVE SOCIAL INCLUSIVENESS UNDER
THE ACT.
106. I may endorse the view that the purpose and object
of the Act is laudable, that is, social inclusiveness in the field
of elementary education but the means adopted to achieve
that objective is faulty and constitutionally impermissible.
Possibly, the object and purpose of the Act could be achieved
by limiting or curtailing the fundamental rights guaranteed to
the unaided non-minority and minority educational
132
institutions under Article 19(1)(g) and Article 30(1) or
imposing a positive obligation on them under Article 21A, but
this has not been done in the instant case. I have extensively
dealt with the question - how the socio economic rights could
be achieved by making suitable constitutional amendments
in Part II of this judgment.
107. Sections 12(1)(b) and 12(1)(c) are vehicles through
which the concept of social inclusiveness is sought to be
introduced into the private schools both aided and unaided
including minority institutions, so as to achieve the object of
free and compulsory education of the satisfactory quality to
the disadvantaged groups and weaker sections of the society.
The purpose, it is pointed out, is to move towards composite
classrooms with children from diverse backgrounds, rather
than homogenous and exclusive schools and it was felt that
heterogeneity in classrooms leads to greater creativity. In
order to understand the scope of the above mentioned
provisions and the object sought to be achieved, it is
necessary to refer to those and other related provisions:-
Section 12:- Extent of School's responsibility for
free and compulsory education
133
(1) For the purposes of this Act, a school, -
(a) specified in sub-clause(i) of clause (n)
of section 2 shall provide free and
compulsory elementary education to all
children admitted therein ;
(b) specified in sub-clause(ii) of clause
(n) of section 2 shall provide free and
compulsory elementary education to such
proportion of children admitted therein as
its annual recurring aid or grants so
received bears to its annual recurring
expenses, subject to a minimum of
twenty-five per cent.;
(c) specified in sub-clauses (iii) and (iv) of
clause (n) of section 2 shall admit in class
I, to the extent of at least twenty-five per
cent of the strength of that class, children
belonging to weaker section and
disadvantaged group in the
neighbourhood and provide free and
compulsory elementary education till its
completion:
Provided further that where a school specified in
clause (n) of section 2 imparts pre-school education,
the provisions of clauses (a) to (c) shall apply for
admission to such pre-school education.
(2) 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 expenditure so
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
134
school specified n sub-clause (i) of clause(n) of
section 2:
Provided further 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.
(3) Every school shall provide such
information as may be required by the appropriate
Government or the local authority, as the case may
be.
Reference may be also be made to definition clauses.
2(d) "child belonging to disadvantaged group"
means a child belonging to the Scheduled Caste,
the Scheduled Tribe, the socially and educationally
backward class or such other group having
disadvantage owing to social, cultural, economical,
geographical, linguistic, gender or such other
factor, as may be specified by the appropriate
Government, by notification;
2(e) "child belonging to weaker section" means a
child belonging to such parent or guardian whose
annual income is lower that the minimum limit
specified by the appropriate Government, by
notification;
2(n) "school" means any recognized school
imparting elementary education and includes
(i) a school established, owned or controlled by
the appropriate Government or a local authority;
(ii) an aided school receiving aid or grants to
meet whole or part of its expenses from the
appropriate Government or the local authority.
135
(iii) a school belonging to specified category; and
(iv) an unaided school not receiving any kind of
aid or grants to meet its expenses from the
appropriate Government or the local authority.
(A) Unaided Educational Institutions, minority and non-
minority:
108. First, I may deal with the challenge against Section
12(1)(c), which casts an obligation on the unaided private
educational institutions both non-minority and minority to
admit to class 1 at least 25% of the strength of those children
falling under Sections 2(d) and 2(e), and also in the pre-
school, if there is one. State also has undertaken re-
imbursement of the fees of those children to the extent of per-
child expenditure incurred by the State.
109. Right of a citizen to establish and run an educational
institution investing his own capital is recognized as a
fundamental right under Article 19(1)(g) and the right of the
State to impose reasonable restrictions under Article 19(6) is
also conceded. Citizens of this country have no constitutional
obligation to start an educational institution and the question
is after having started private schools, do they owe a
136
constitutional obligation for seat sharing with the State on a
fee structure determined by the State. Pai Foundation and
Inamdar took the view that the State cannot regulate or
control admission in unaided educational institutions so as to
compel them to give up a share of available seats which
according to the court would amount to nationalization of
seats and such an appropriation of seats would constitute
serious encroachment on the right and autonomy of the
unaided educational institutions. Both Pai Foundation and
Inamdar are unanimous in their view that such
appropriation of seats cannot be held to be a regulatory
measure in the interest of rights of the unaided minority
educational institutions guaranteed under Article 30(1) of the
Constitution or a reasonable restriction within the meaning of
Article 19(6) in the case of unaided non-minority educational
institution. Inamdar has also held that to admit students
being an unfettered fundamental right, the State cannot
make fetters upto the level of under graduate education.
Unaided educational institutions enjoy total freedom and they
can legitimately claim `unfettered fundamental rights' to
choose students subject to its being fair, transparent and
non-exploitative.
137
110. Section 12(1)(c) read with Section 2(n)(iv) of the Act
never envisages any distinction between unaided minority
schools and non-minority schools. Constitution Benches of
this Court have categorically held that so far as appropriation
of quota by the State and enforcement of reservation policy is
concerned, there is not much difference between unaided
minority and non-minority educational institutions (Refer
Paras 124, 125 of Inamdar). Further, it was also held that
both unaided minority and non-minority educational
institutions enjoy "total freedom" and can claim "unfettered
fundamental rights" in the matter of appropriation of quota
by the State and enforcement of reservation policy. This
Court also held that imposition of quota or enforcing
reservation policy are acts constituting serious encroachment
on the right and autonomy of such institutions both minority
(religious and linguistic) and non- minority and cannot be
held to be a regulatory measure in the interest of minority
within the meaning of Article 30(1) or a reasonable restriction
within the meaning of Article 19(6) of the Constitution.
Therefore, no distinction or difference can be drawn between
unaided minority schools and unaided non-minority schools
138
with regard to appropriation of quota by the State or its
reservation policy under Section 12(1)(c) of the Act.
111. I am of the view, going by the ratio laid down by Pai
Foundation and Inamdar, to compel the unaided non
minority and minority private educational institutions, to
admit 25% of the students on the fee structure determined by
the State, is nothing but an invasion as well as appropriation
of the rights guaranteed to them under Article 19(1)(g) and
Article 30(1) of the Constitution. Legislature cannot under
the guise of interest of general public "arbitrarily cast burden
or responsibility on private citizens running a private school,
totally unaided". Section 12(1)(c) was enacted not only to
offload or outsource the constitutional obligation of the State
to the private unaided educational institutions, but also to
burden them with duties which they do not constitutionally
owe to children included in Section 2(d) or (e) of the Act or to
their parents.
112. Pai Foundation, in paragraph 57 of the judgment
has stated that in as much as the occupation of education is,
in a sense, regarded as charitable, the Government can
139
provide regulations that will ensure excellence in education,
while forbidding the charging of capitation fee and
profiteering by the institution. Further, it was also pointed
out that in the establishment of an educational institution,
the object should not be to make profit, inasmuch as
education is essentially charitable in nature. However, there
can be a reasonable revenue surplus, which may be
generated by the educational institutions for the purpose of
development of education and their expansion.
Consequently, the mere fact that education in one sense, is
regarded as charitable, the Government cannot appropriate
25% of the seats of the unaided private educational
institutions on the ground that providing education is
charity. Pai Foundation and Inamdar after holding that
occupation of education can be regarded as charitable held
that the appropriation of seats in an unaided private
educational institution would amount to nationalization of
seats and an inroad into their autonomy. The object and
purpose of Section 12(1)(c), it may be noted, is not to reduce
commercialization. Pai Foundation and Inamdar have
clearly denounced commercialization of education.
140
113. Right to establish and administer and run a private
unaided educational institution is the very openness of
personal freedom and opportunity which is constitutionally
protected, which right cannot be robbed or coerced against
his will at the threat of non-recognition or non-affiliation.
Right to establish a private unaided educational institution
and to make reasonable profit is recognized by Article 19(1)(g)
so as to achieve economic security and stability even if it is
for charity. Rights protected under Article 19(1)(g) are
fundamental in nature, inherent and are sacred and valuable
rights of citizens which can be abridged only to the extent
that is necessary to ensure public peace, health, morality etc.
and to the extent of the constitutional limitation provided in
that Article. Reimbursement of fees at the Government rate is
not an answer when the unaided private educational
institutions have no constitutional obligation and their
Constitutional rights are invaded.
114. Private unaided educational institutions are established
with lot of capital investment, maybe with loan and
borrowings. To maintain high standard of education, well
qualified and experienced teachers have to be appointed, at
141
times with hefty salary. Well equipped library, laboratory etc
have also to be set up. In other words considerable money by
way of capital investment and overhead expenses would go
into for establishing and maintaining a good quality unaided
educational institution. Section 12(1)(c), in my view, would
amount to appropriation of one's labour and makes an inroad
into the autonomy of the institution. Unaided educational
institutions, over a period of time, might have established
their own reputation and goodwill, a quantifiable asset.
Nobody can be allowed to rob that without their permission,
not even the State. Section 12(1)(c) is not a restriction which
falls under Article 19(6) but cast a burden on private unaided
educational institutions to admit and teach children at the
state dictate, on a fee structure determined by the State
which, in my view, would abridge and destroy the freedom
guaranteed to them under Article 19(1)(g) of the Constitution.
115. Parliament can enact a social legislation to give effect
to the Directive Principles of the State Policy, but so far as the
present case is concerned, neither the Directive Principles of
the State Policy nor Article 21A cast any duty or obligation on
the unaided private educational institutions to provide free
142
and compulsory education to children of the age of 6 to 14.
Section 12(1)(c) has, therefore, no foundation either on the
Directive Principles of the State Policy or Article 21A of the
Constitution, so as to rope in unaided educational
institutions. Directive Principles of the State Policy as well as
Article 21A cast the constitutional obligation on the State and
State alone. State, cannot offload or outsource that
Constitutional obligation to the private unaided educational
institutions and the same can be done only by a
constitutional provision and not by an ordinary legislation.
116. Articles 41, 45 and 46 of Part IV of the Constitution
cast the duty and constitutional obligations on the State
under Article 21A, apart from other constitutional principles
laid down by Pai Foundation as well as Inamdar. Section
12(1)(c) has neither the constitutional support of Article 21A,
nor the support of Articles 41, 45 or 46, since those
provisions cast duty only on the State and State alone. The
policies laid down under Articles 41, 45 and 46 can always be
achieved by carrying out necessary amendment to the
fundamental rights. However, so far as the present case is
concerned, Article 21A has been enacted to cast a
143
constitutional obligation on the state and a duty upon the
State under Articles 41, 45 and 46. I have pointed out that it
is to get over such situations and for the removal of such
obstacles several constitutional amendments were
necessitated which I have extensively dealt with in Part II of
my judgment.
117. Section 12(1)(c) seeks to achieve what cannot be
achieved directly especially after the interpretation placed by
Pai Foundation and Inamdar on Article 19(1)(g) and Article
30(1) of the Constitution. Inamdar has clearly held that
right to set up, and administer a private unaided educational
institution is an unfettered right, but 12(1)(c) impose fetters
on that right which is constitutionally impermissible going by
the principles laid down by Pai Foundation and Inamdar.
Section 12(1)(c), in my view, can be given effect to, only on
the basis of principles of voluntariness and consensus laid
down in Pai Foudnation and Inamdar or else, it may violate
the rights guaranteed to unaided minority and non-minority
institutions.
118. Constitution of India has expressly conferred the
power of judicial review on Courts and the Legislature cannot
144
disobey the constitutional mandate or the constitutional
principle laid down by Courts under the guise of social
inclusiveness. Smaller inroad like Section 12(1)(c) may lead
to larger inroad, ultimately resulting in total prohibition of the
rights guaranteed under Articles 19(1)(g), 29(2) and 30(1) as
interpreted by the Pai Foundation and Inamdar. Court, in
such situations, owe a duty to lift the veil of the form and
appearance to discover the true character and nature of the
legislation and if it has the effect of bypassing or ignoring the
constitutional principles laid down by the Constitutional
Courts and violate fundamental rights, the same has to be
nullified.
119. Pai Foundation and Inamdar have not laid down
any new constitutional principle, but only declared what the
law is. Constitutional principles laid by courts get
assimilated in Articles 19(1)(g), 29(2) and 30(1) and can be
undone not by legislation, but only by constitutional
amendments. The object to be achieved by the legislation
may be laudable, but if it is secured by a method which
offends fundamental rights and constitutional principles, the
law must be struck down as unconstitutional. The
145
constitutional provision like Article 19(1)(g) is a check on the
exercise of legislative power and it is the duty of the
constitutional court to protect the constitutional rights of the
citizens against any encroachment, as it is often said,
"smaller inroad may lead to larger inroad and ultimately
resulting into nationalization or even total prohibition."
Section 12(1)(c), if upheld would resurrect Unni Krishnan
scheme which was nullified by Pai Foundation and
Inamdar.
120. I am, therefore, of the view that so far as unaided
educational institutions both minority and non-minority are
concerned the obligation cast under Section 12(1)(c) is only
directory and the said provision is accordingly read down
holding that it is open to the private unaided educational
institutions, both minority and non-minority, at their volition
to admit children who belong to the weaker sections and
disadvantaged group in the neighbourhood in their
educational institutions as well as in pre-schools.
(B) Aided Educational Institutions, minority and non-
minority:
146
121. Section 12(1)(b) deals with the schools receiving aid or
grants to meet whole or part of its expenses from the
appropriate government or local authority. Those schools are
bound to provide free and compulsory elementary education
to such proportion of children subject to a minimum of 25%
depending upon its annual recurring aid or grants so
received. Pai Foundation has clearly drawn a distinction
between aided private educational institutions and unaided
private educational institutions both minority and non-
minority. So far as private aided educational institutions,
both minority and non-minority are concerned, it has been
clearly held in Pai Foundation that once aid is provided to
those institutions by the Government or any state agency, as
a condition of grant or aid, they can put fetters on the
freedom in the matter of administration and management of
the institution. Aided institutions cannot obtain the extent of
autonomy in relation to the management and administration
as would be available to a private unaided institution. Pai
Foundation after referring to St. Stephen judgment and
Articles 29 and 30 held that even if it is possible to fill up all
the seats with minority group the moment the institution is
granted aid the institution will have to admit students from
147
non-minority group to a reasonable extent without
annihilating the character of the institution. In St. Stephen
case which I have already dealt with in the earlier paragraphs
of the judgment, the Court held that the State may regulate
intake in a minority aided educational institution with due
regard to the need of the community of that area where the
institution is intending to serve. However, it was held in no
case such intake shall exceed 50% of the annual admission.
Minority aided educational institutions, it was held, shall
make available at least 50% of the annual admission to the
members of the communities other than minority community.
The Court also held by admitting a member of a non minority
into a minority institution, it does not shed its character and
cease to be a minority institution and such "sprinkling of
outsiders" would enable the distinct language, script and
culture of a minority to be propagated amongst non members
of a particular community and would indeed better serve the
object of serving the language, religion and culture of that
minority. I may also add that Section 12(1)(b) equally
safeguards the rights of the members of religious and
linguistic minority communities. Section 2(e) deals with the
`child belonging to weaker section' of the minority
148
communities, religious or linguistic, who would also get the
benefit of Section 12(1)(b) and, therefore, the contention that
Section 12(1)(b), as such, would stand against the interest of
the religious and linguistic minority communities is
unfounded.
122. Applying the principle laid down in Pai Foundation,
Inamdar, St. Stephen and in Re. Kerala Education Bill, I
am of the view that clause 12(1)(b) directing the aided
educational institutions minority and non-minority to provide
admission to the children of the age group of 6 to14 years
would not affect the autonomy or the rights guaranteed under
Article 19(1)(g) or Article 30(1) of the Constitution of India. I,
therefore, reject the challenge against the validity of Section
12(1)(b) and hold that the provision is constitutionally valid.
PART V
123. Private unaided educational institutions, apart from
challenging Section 12(1)(c), have also raised various
objections with regard to other provisions of the Act. Learned
senior counsels appearing for them submitted that Sections
3, 6, 7, 8 and 9 read with Sections 4, 5 and 10 impose duties
149
and obligations upon the appropriate government and local
authority and those sections completely answer and fulfill the
mandate contained in Article 21A as against the State.
Section 3 recognizes the right of the child to free and
compulsory education in a neighbourhood school. Unaided
educational institutions have only a negative duty of not
interfering with the right of the child and not to unreasonably
interfere with the realization of those rights and there is no
obligation to surrender their rights guaranteed under Article
19(1)(g) and Article 30(1), recognized in Pai Foundation and
Inamdar. Children can, therefore, enforce their
constitutional and statutory rights against the educational
institutions run by the State, local authority qua aided
educational institution and not against unaided minority and
non-minority educational institutions. It is so declared.
124. Petitioners have not raised any objection with regard
to prohibition imposed under Section 13 against collecting
the capitation fee which they are bound to follow even on the
declaration of law, by Pai Foundation and Inamdar.
Petitioners submitted that a fair and transparent screening
procedure is being followed by all the schools. So far as
150
Section 14 is concerned, petitioners have submitted that
schools always give opportunity to the child/parent to
produce some authentic proof to ascertain the age of the
child. Petitioners, referring to Section 15, submitted that the
child has to adhere to the academic procedure laid down by
the institutions and there will be no denial of admission to
the children subject to the availability of seats. With regard
to Section 16, it was contended that the prohibition against
holding back any student in any class or expelling any
student regardless of how grave the provocation may be,
imposes unreasonable and arbitrary restriction which would
completely destroy the unique educational system followed by
some of the unaided educational institutions.
125. Shri Chander Uday Singh, senior counsel appearing in
Writ Petition (Civil) No. 83 of 2011, submitted that they are
following the International Baccalaureate system of
education; the syllabus, curriculum, method of instructions
are totally different from other schools. There are no day
scholars, and all the students have to stay in the Boarding
and the school fees is also high. Most of the students
studying in the school are not from the neighbourhood but
151
from all over the country and abroad. School has its own
rules and regulations. Prohibition of holding back and
expulsion of students in an unaided private educational
institution depends upon the academic and disciplinary
procedure laid down by the school and its parent body.
Counsel, referring to Section 17 of the Act, submitted that the
prohibition of physical punishment and mental harassment is
a welcome provision which the schools follow.
126. Learned senior counsel also submitted that some of
their schools are not affiliated or recognized by any State
Education Board or the Board constituted by the Central
Government or the Indian Council of Secondary Education
etc. and those schools generally follow the rules laid down by
the recognizing body and are, therefore, unable to fulfill the
norms and standards specified in the schedule referred to in
Section 19.
127. Counsel appearing for the unaided institutions
contended that the curriculum and evaluation procedure laid
down by the body affiliating or recognizing the institutions are
being followed by them and the provisions stipulated in
Section 29(2) are generally being adhered to by their schools.
152
With regard to Section 23 of the Act, counsels submitted that
some of the unaided private educational institutions employ
the teachers from outside the country as it encourages cross-
fertilization of ideas and educational systems and practices
and the qualifications provided by the institutions may not be
as prescribed under Section 23 of the Act and the
qualifications provided therein may not be sufficient for
appointment as teachers in the schools affiliated to
International Baccalaureate system. Learned counsel
appearing for the unaided private educational institutions
also referred to Rules 9, 11 to 15 and 23 and explained how it
affects their autonomy and status of their institutions.
128. I have extensively dealt with the contentions raised
by the unaided private educational institutions and I am of
the view that not only Section 12(1)(c), but rest of the
provisions in the Act are only directory so far as those
institutions are concerned, but they are bound by the
declaration of law by Pai Foundation and Inamdar, like
there shall be no profiteering, no maladministration, no
demand for capitation fee and so on and they have to follow
the general laws of the land like taxation, public safety,
153
sanitation, morality, social welfare etc.
129. I may indicate that so far as the rest of the schools
are concerned, including aided minority and non-minority
educational institutions, they have necessarily to follow the
various provisions in the Act since I have upheld the validity
of Section 12(1)(b) of the Act. Certain objections have also
been raised by them with regard to some of the provisions of
the Act, especially by the aided minority community.
Contention was raised that Sections 21 and 22 of the Act,
read with Rule 3, cast an obligation on those schools to
constitute a School Management Committee consisting of
elected representatives of the local authority which amounts
to taking away the rights guaranteed to the aided minority
schools, under Article 30(1) of the Constitution. Learned
Additional Solicitor General has made available a copy of a
Bill, proposing amendment to Section 21, adding a provision
stating that the School Management Committee constituted
under sub-section (1) of Section 21 in respect of a school
established and administered by minority whether based on
religion or language, shall perform advisory functions only.
The apprehension that the committee constituted under
154
Section 21(1) would replace the minority educational
institution is, therefore, unfounded. [Ref. F.No.1-22009-E.E-4
of Government of India (Annexure A-3)].
130. Petitioners have also raised objections against the
restrictions imposed in following any screening procedure
before admitting children to their schools under Sections 13
or 14 of the Act, which according to the petitioners, takes
away the autonomy of the institutions. Several
representations were received by the Ministry of Human
Resources and Development, Government of India seeking
clarification on that aspect and the Ministry issued a
notification dated 23.11.2009 under Section 35(1) of the Act
laying guidelines to be followed by both unaided and aided
educational institutions. It was pointed out that the object of
the provisions of Section 13(1) read with Section 2(d) is to
ensure that schools adopt an admission procedure which is
non-discriminatory, rational and transparent and the schools
do not subject children and their parents to admission tests
and interviews so as to deny admission. I find no infirmity in
Section 13, which has nexus with the object sought to be
achieved, that is access to education.
155
131. Contention was also raised by them against Section
14(2) which provides that no child shall be denied admission
in a school for lack of age proof which, according to them, will
cause difficulty to the management to ascertain the age of the
child. Section 14 stipulates that the age of a child shall be
determined on the basis of the birth certificate issued in
accordance with the provisions of the Birth, Death and
Marriages Registration Act, 1986, or the other related
documents. The object and purpose of Section 14 is that the
school shall not deny access to education due to lack of age
proof. I find no legal infirmity in that provision, considering
the overall purpose and object of the Act. Section 15 states
that a child shall not be denied admission even if the child is
seeking admission subsequent to the extended period. A
child who evinces an interest in pursuing education shall
never be discouraged, so that the purpose envisaged under
the Act could be achieved. I find no legal infirmity in that
provision.
132. Challenge was also made to Section 16 of the Act
stating that it will lead to indiscipline and also deteriorate the
quality of the education, which I find difficult to agree with
156
looking to the object and purpose of the Act. Holding back in
a class or expulsion may lead to large number of drop outs
from the school, which will defeat the very purpose and object
of the Act, which is to strengthen the social fabric of
democracy and to create a just and humane society.
Provision has been incorporated in the Act to provide for
special tuition for the children who are found to be deficient
in their studies, the idea is that failing a child is an unjust
mortification of the child personality, too young to face the
failure in life in his or her early stages of education. Duty is
cast on everyone to support the child and the child's failure is
often not due the child's fault, but several other factors. No
legal infirmity is found in that provision, hence the challenge
against Section 16 is rejected.
133. Petitioners have not raised any objection with regard
to Section 17, in my view, rightly. Sections 18 and 19 insist
that no school shall be established without obtaining
certificate of recognition under the Act and that the norms
and standards specified in the schedule be fulfilled, if not
already fulfilled, within a stipulated time. There is nothing
objectionable in those provisions warranting our interference.
157
Section 23, in my view, would not take away the freedom of
aided minority educational institutions for the reasons
already stated by us. No infirmity is also found with regard to
Sections 24 to 28 of the Act since the object and purpose of
those provisions are to provide education of satisfactory
quality so that the ultimate object of the Act would be
achieved.
134. Learned counsel also submitted that some of the
aided minority and non-minority educational institutions are
following the curriculum as laid down by independent
recognized Boards such as CBSE, ICSE etc. and they are
competent bodies for laying down such procedures and in
case those schools are compelled to follow the curriculum
and evaluation procedure laid down in Section 29, the
schools would be put to considerable inconvenience and
difficulties and may affect the quality of education.
135. I am of the view that requiring the minority and non-
minority institutions to follow the National Curriculum
Framework or a Curriculum Framework made by the State,
would not abrogate the right under Article 19(1)(g) or Article
30(1) of the Constitution. Requirement that the curriculum
158
adopted by a minority institution should comply with certain
basic norms is in consonance with the values enshrined in
the Constitution and cannot be considered to be violative of
the rights guaranteed to them under Article 30(1). Further,
the curriculum framework contemplated by Section 29(1)
does not subvert the freedom of an institution to choose the
nature of education that it imparts, as well as the affiliation
with the CBSE or other educational boards. Over and above,
what has been prescribed by those affiliating or recognizing
bodies is that these schools have also to follow the
curriculum framework contemplated by Section 29(1) so as to
achieve the object and purpose of the Act. I, therefore, find
no infirmity in the curriculum or evaluation procedure laid
down in Section 29 of the Act.
136. Section 30 of the Act which provides that no child
shall be required to pass any Board examination till the
completion of elementary education and that on completion of
elementary education, the child shall be awarded a certificate.
Education is free and compulsory for the children of the age 6
to 14 years and the object and purpose is to see that children
should complete elementary education. If they are subjected
159
to any Board Examination and to any screening procedure,
then the desired object would not be achieved. The object
and purpose of Section 30 is to see that a child shall not be
held back in any class so that the child would complete his
elementary education. The Legislature noticed that there are
a large number of children from the disadvantaged groups
and weaker sections who drop out of the schools before
completing the elementary education, if promotion to higher
class is subject to screening. Past experience shows that
many of such children have dropped out of the schools and
are being exploited physically and mentally. Universal
Elementary Education eluded those children due to various
reasons and it is in order to curb all those maladies that the
Act has provided for free and compulsory education. I,
therefore, find no merit in the challenge against those
provisions which are enacted to achieve the goal of universal
elementary education for strengthening the social fabric of
the society.
137. Counsel appearing for some of the aided minority
institutions raised a doubt as to whether the Act has got any
impact on the Freedom of Religion and Conscience
160
guaranteed under Article 25 insofar as it applies to
institutions run by a religious denomination. It was clarified
by the Union of India that the Act would apply to institutions
run by religious denominations in case the institution
predominantly offers primary education either exclusively or
in addition to religious instruction. It was pointed out that
where the institution predominantly provides religious
instructions like Madrasas, Vedic Pathshalas etc. and do not
provide formal secular education, they are exempted from the
applicability of the Act. The Act, therefore, does not interfere
with the protection guaranteed under Articles 25 and 26 of
the Constitution and the provisions in the Act in no way
prevent the giving of religious education to students who wish
to take religious education in addition to primary education.
Article 25 makes it clear that the State reserves the right to
regulate or restrict any economic, financial, political or other
secular activities which are associated with religious practice
and also states that the State can legislate for social welfare
and reform, even though by doing so it would interfere with
the religious practices. Madrasas and Vedic Pathshalas, as I
have already indicated, predominantly provide religious
instruction and do not provide formal secular education and,
161
hence, they are exempted from the applicability of the Act.
The Central Government has now issued Guidelines dated
23.11.2010 under Section 35(1) of the Act clarifying the above
position. The operative part of the guidelines reads as
under:
"3. Institutions, including Madrasas and
Vedic Pathshalas, especially serving religious and
linguistic minorities are protected under Articles 29
and 30 of the Constitution. The RTE Act does not
come in the way of continuance of such
institutions, or the rights of children in such
institutions."
Madrasas, Vedic Pathshalas and similar institutions serving
religious and linguistic minorities as such are, therefore,
protected under Articles 29 and 30 of the Constitution from
the rigour of the Act.
138. The Act has now brought in the concept of public-
private partnership for achieving the goal of Universal
Elementary Education. It also stresses upon the importance
of preparing and strengthening the schools to address all
kinds of diversities arising from inequalities of gender, caste,
language, culture, religious or other disabilities. The concept
of neighbourhood schools has also been incorporated for the
first time through a legislation and the right of access of the
162
children to elementary education of satisfactory and equitable
quality has also been ensured. The duties and
responsibilities of the appropriate government, local
authorities, parents, schools and teachers in providing free
and compulsory education, a system for protection of the
right of children and a decentralized grievance mechanism
has been provided by the Legislature. Obligation has also
been cast on the State and the local authority to establish
neighbourhood schools within a period of three years from
the commencement of the Act and the Central Government
and the State Governments have concurrent responsibilities
for providing funds for carrying out all the provisions of the
Act and the duties and responsibilities cast on the local
authorities as well. A provision has also been made in the
Act for pre-school education for children above the age of
three years. The purpose is to prepare them for elementary
education and to provide early childhood care and education
for all children until they complete the age of six years and
the appropriate government has to take necessary steps for
providing free pre-school education for such children.
Further, the Act also cast a duty on every parent or guardian
to admit or cause to be admitted his or her child or ward, as
163
the case may be, for an elementary education in the
neighbourhood school, which is in conformity with Article
51A(k) of the Constitution.
139. The State has played a dominant role in providing
educational services through the Government schools, largely
managed by State Governments and local bodies, as well as
through privately managed but publicly funded schools called
government-aided schools. These aided schools are operated
by charitable trusts, voluntary organizations, and religious
bodies but receive substantial funding from the government.
According to the Indian Human Development Survey (IHDS),
2005 about 67% of students attend government schools,
about 5% attend government-aided schools, and 24% attend
private schools. Convents and Madrasas account for about
1-2%. The survey conducted by IHDS indicates that in 2005
about 21% of rural and 51% of urban children were enrolled
in private schools. Part of this increase in private school
enrolment has come about through a decline in enrolment in
government-aided schools. In 1994, nearly 22% of rural
children were enrolled in government-aided schools. By
2005, this declined to a bare 7% in rural areas and 5% in
164
urban areas. At an all India level, 72% of children are
enrolled in government schools, and about 28% are in private
schools. The survey further indicates that the children
between 6-14 years old, about 40% participated in private
sector education either through enrolment in private school
(20%), through private tuition (13%), or both (7%). The
growing preference for private schooling and the reliance on
private tutoring, has to be seen in the context of differences
in admission of children in government and private schools.
The quality of education in government schools, due to
various reasons, has gone down considerably. The Act is also
envisaged on the belief that the schools run by the
appropriate government, local authorities, aided and
unaided, minority and non-minority, would provide
satisfactory quality education to the children, especially
children from disadvantaged and weaker sections.
140. Private aided educational institutions, though run
on aid and grant provided by the State, generally the
payment to such schools is not performance oriented. The
State Governments provide 100% salary to the teachers on its
roll on monthly basis and some State Governments would
165
provide 90%. Generally, the State Governments do not
provide capital cost either for construction or for repair and
whenever these schools are aided, the school fee is regulated
and is generally equal to the fee prevailing in the government
schools. The recruitment of teaches by these schools is also
subject to the Government regulation like inclusion of a
representative of the Government in the selection committee,
or the appointment being subject to the approval of the
Government.
141. Currently, all taxes in India are subject to the
education cess, which is 3% of the total tax payable. With
effect from assessment year 2009-10, Secondary and Higher
Secondary Education Cess of 1% is applicable on the subtotal
of taxable income. The proceeds of the cess are directed to a
separate non lapsable fund called Prarambhik Shiksha Kosh
(PSK), setup by Government of India, to exclusively cater to
the elementary education in India. This fund is under the
control of the Ministry of Human Resource and Development
(MoHRD) and is typically utilized for its flagship programmes
Sarva Sikksha Abhiyaan (SSA) and the Mid-day Meal
Scheme (MDMS).
166
142. The statistics would indicate that out of the
12,50,775 schools imparting elementary education in the
country in 2007-08, 80.2% were all types of government
schools, 5.8 % private aided schools and 13.1% private
unaided schools. Almost 87.2% of the schools are located in
the rural areas. In the rural areas the proportion of private
unaided schools is only 9.3% and that of aided schools is
4.7%. However, in the urban areas, the percentage of private
unaided and aided schools are as high as 38.6% and 13.4%
respectively.
143. Out of the total students enrolled in primary classes
in 2007-08 about 75.4, 6.7 and 17.8% are enrolled in
government, aided and unaided schools. The total number of
teachers working in these schools in 2007-08 was 56,34,589
of which 69.3, 10.4 and 20.7% are teaching in government,
aided and private schools, the average number of teachers
per school being 3.9, 8.3 and 6.7% respectively. The
statistics would indicate that the Government schools have
the highest percentage of teachers who are professionally
trained at 43.4%, followed by aided school (27.8%) and
unaided private schools (only 2.3%). However, the learning
167
achievements are higher in private schools compared to
Government schools. Going through the objects and reasons
of the Act, the private unaided educational institutions are
roped in not due to lack of sufficient number of schools run
by the appropriate Government, local authorities or aided
educational institutions, but basically on the principle of
social inclusiveness so as to provide satisfactory quality
education. Some of the unaided educational institutions
provide superior quality education, a fact conceded and it is a
constitutional obligation of the appropriate Government, local
authority and aided schools not only to provide free and
compulsory education, but also quality education.
144. Positive steps should be taken by the State
Governments and the Central Government to supervise and
monitor how the schools which are functioning and providing
quality education to the children function. Responsibility is
much more on the State, especially when the Statute is
against holding back or detaining any child from standard I
to VIII.
145. Mr. Murray N. Rothbard, an eminent educationist and
Professor in Economics, in his Book "Education: Free and
168
Compulsory" [1999, Ludurg von Mises Institute, Auburn,
Aliana] cautioned that progressive education may destroy the
independent thought in the child and a child has little chance
to develop his systematic reasoning powers in the study of
definite courses. The Book was written after evaluating the
experiences of various countries, which have followed free
and compulsory education for children for several years.
Prohibition of holding back in a class may, according to the
author, result that bright pupils are robbed of incentive or
opportunity to study and the dull ones are encouraged to
believe that success, in the form of grades, promotion etc.,
will come to them automatically. The author also questioned
that since the State began to control education, its evident
tendency has been more and more to act in such a manner
so as to promote repression and hindrance of education,
rather than the true development of the individual. Its
tendency has been for compulsion, for enforced equality at
the lowest level, for the watering down of the subject and
even the abandonment of all formal teaching, for the
inculcation of obedience to the State and to the "group,"
rather than the development of self-independence, for the
deprecation of intellectual subjects.
169
146. I am of the view that the opinions expressed by the
academicians like Rothbard command respect and cannot be
brushed aside as such because, much more than anything,
the State has got a constitutional responsibility to see that
our children are given quality education. Provisions of the
statute shall not remain a dead letter, remember we are
dealing with the lives of our children, a national asset, and
the future of the entire country depends upon their
upbringing. Our children in the future have to compete with
their counter-parts elsewhere in the world at each and every
level, both in curricular and extra-curricular fields. Quality
education and overall development of the child is of prime
importance upon which the entire future of our children and
the country rests.
147. The legislation, in its present form, has got many
drawbacks. During the course of discussion, the necessity
of constituting a proper Regulatory Body was also raised so
that it can effectively supervise and monitor the functioning
of these schools and also examine whether the children are
being provided with not only free and compulsory education,
but quality education. The Regulatory authority can also
170
plug the loopholes, take proper and steps for effective
implementation of the Act and can also redress the
grievances of the children.
148. Learned Attorney General for India has favoured the
setting up of an Adjudicatory/Regulatory Authority to
determine the question whether compliance with Section
12(1)(b) and Section 12(1)(c) will have an adverse impact on
the financial viability of the school, and if so, to suggest
remedies and to deal with issues like expulsion etc.
Learned Attorney General indicated the necessity of a
statutory amendment if the Regulatory/Adjudicatory body
has to be set up under the Act. Proper adjudication
mechanism may also pave the way for a successful and
effective public-private partnership for setting up educational
institutions of best quality so that our children will get
quality education. I am sure that the Government will give
serious attention to the above aspect of the matter which are
of prime importance since we are dealing with the future of
the children of this country.
PART VI
171
CONCLUSIONS
1. Article 21A casts an obligation on the State to provide
free and compulsory education to children of the age of
6 to 14 years and not on unaided non-minority and
minority educational institutions.
2. Rights of children to free and compulsory education
guaranteed under Article 21A and RTE Act can be
enforced against the schools defined under Section 2(n)
of the Act, except unaided minority and non-minority
schools not receiving any kind of aid or grants to meet
their expenses from the appropriate governments or
local authorities.
3. Section 12(1)(c) is read down so far as unaided non-
minority and minority educational institutions are
concerned, holding that it can be given effect to only on
the principles of voluntariness, autonomy and
consensus and not on compulsion or threat of non-
recognition or non-affiliation.
4. No distinction or difference can be drawn between
unaided minority and non-minority schools with regard
172
to appropriation of quota by the State or its reservation
policy under Section 12(1)(c) of the Act. Such an
appropriation of seats can also not be held to be a
regulatory measure in the interest of the minority within
the meaning of Article 30(1) or a reasonable restriction
within the meaning of Article 19(6) of the Constitution.
5. The Appropriate Government and local authority have to
establish neighbourhood schools as provided in Section
6 read with Sections 8 and 9, within the time limit
prescribed in the Statute.
6. Duty imposed on parents or guardians under Section
10 is directory in nature and it is open to them to admit
their children in the schools of their choice, not
invariably in the neighbourhood schools, subject to
availability of seats and meeting their own expenses.
7. Sections 4, 10, 14, 15 and 16 are held to be directory in
their content and application. The concerned
authorities shall exercise such powers in consonance
with the directions/guidelines laid down by the Central
Government in that behalf.
173
8. The provisions of Section 21 of the Act, as provided,
would not be applicable to the schools covered under
sub-Section (iv) of clause (n) of Section 2. They shall
also not be applicable to minority institutions, whether
aided or unaided.
9. In exercise of the powers conferred upon the
appropriate Government under Section 38 of the RTE
Act, the Government shall frame rules for carrying out
the purposes of this Act and in particular, the matters
stated under sub-Section (2) of Section 38 of the RTE
Act.
10. The directions, guidelines and rules shall be framed by
the Central Government, appropriate Government
and/or such other competent authority under the
provisions of the RTE Act, as expeditiously as possible
and, in any case, not later than six months from the
date of pronouncement of this judgment.
11. All the State Governments which have not constituted
the State Advisory Council in terms of Section 34 of the
RTE Act shall so constitute the Council within three
months from today. The Council so constituted shall
174
undertake its requisite functions in accordance with the
provisions of Section 34 of the Act and advise the
Government in terms of clauses (6), (7) and (8) of this
order immediately thereafter.
12. Central Government and State Governments may set
up a proper Regulatory Authority for supervision and
effective functioning of the Act and its implementation.
13. Madrasas, Vedic Pathshalas etc. which predominantly
provide religious instructions and do not provide for
secular education stand outside the purview of the Act.
149. The Writ Petitions are disposed of as above. This
Judgment would have prospective operation and would apply
from the next academic year 2012-13 onwards. However,
admissions already granted would not be disturbed. We
record our deep appreciation for the valuable assistance
rendered by the counsel appearing for the both sides.
.......................................J.
(K. S. RADHAKRISHNAN)
New Delhi;
April 12, 2012
175
ITEM NO.1A COURT NO.1 SECTIONS PIL & X
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
WRIT PETITION (CIVIL) NO.95 OF 2010
SOCIETY FOR UN-AIDED P.SCHOOL OF RAJ. Petitioner(s)
VERSUS
U.O.I & ANR. Respondent(s)
With Writ Petition (C) No.98 of 2010
Writ Petition (C) No.126 of 2010
Writ Petition (C) No.137 of 2010
Writ Petition (C) No.228 of 2010
Writ Petition (C) No.269 of 2010
Writ Petition (C) No.310 of 2010
Writ Petition (C) No.364 of 2010
Writ Petition (C) No.384 of 2010
W.P. (C) No.22 of 2011
W.P. (C) No.24 of 2011
W.P. (C) No.21 of 2011
W.P. (C) No.47 of 2011
W.P. (C) No.59 of 2011
W.P. (C) No.50 of 2011
W.P. (C) No.83 of 2011
W.P. (C) No.88 of 2011
W.P. (C) No.99 of 2011
W.P. (C) No.102 of 2011
W.P. (C) No.104 of 2011
W.P. (C) No.86 of 2011
W.P. (C) No.101 of 2011
W.P. (C) No.115 of 2011
W.P. (C) No.154 of 2011
W.P. (C) No.126 of 2011
W.P. (C) No.118 of 2011
W.P. (C) No.186 of 2011
W.P. (C) No.148 of 2011
W.P. (C) No.176 of 2011
W.P. (C) No.205 of 2011
W.P. (C) No.238 of 2011
W.P. (C) No.239 of 2011
Date: 12/04/2012 These Matters were called on for Judgement
today.
...2/-
176
- 2 -
For Petitioner(s) Dr. Rajeev Dhavan,Sr.Adv.
In WP 95/10,98/10, Ms. Shobha,Adv.
126/10,137/10 & Ms. Bijoylakshmi Das,Adv.
228/10: Ms. Hema Shekhawat,Adv.
Ms. Indira Ramesh,Adv.
Mr. Raghav Shankar,Adv.
Mr. Vedanta Kumar,Adv.
Mr. Abeer Kumar,Adv.
Mr. Amit Mittal,Adv.
In WP 269/10 Mr. T.R. Andhyarujina,Sr.Adv.
Mr. Romy Chacko,Adv.
Mr. Ambar Qamaruddin,Adv.
In WP 310/10 & Mr. Vikash Singh,Sr.Adv.
59/2011: Mr. Pukhrambam Ramesh Kumar,Adv.
Ms. Shobana Masters,Adv.
Mr. Rahul Dhawan,Adv.
Mr. Vishesh Issar,Adv.
Mr. Basavaraj,Adv.
Mr. Akshay Arora,Adv.
In WP 364/10 Mr. P.I. Jose,Adv.
Mr. Anupam Mishra,Adv.
Mr. B.K. Mishra,Adv.
Mr. Vivek Kandari,Adv.
In WP 384/10 Mr. Achintya Dvivedi,Adv.
Mr. Neeraj Shekhar,Adv.
In WP 21/11 Mr. Anupam Lal Das,Adv.
Mr. Arpit Gupta,Adv.
In WP 22/11 Ms. Madhvi Divan,Adv.
Mr. Sanjeev K. Kapoor,Adv.
Mr. Nitin Massey,Adv.
Ms. Saman Ahsan,Adv.
for M/s. Khaitan and Co.,Advs.
In WP 24/11 Dr. Rajiv Dhawan,Adv.
Mr. Sushil D. Salwan,Adv.
Mr. Vedanta Varma,Adv.
Mr. Abeer Kumar,Adv.
for M/s. Karanjawala and Co.,Advs.
...3/-
177
- 3 -
In WP 47/11 Mr. Naveen R. Nath,Adv.
Mr. Darpan K.M.,Adv.
Ms. Lalit Mohini Bhat,Adv.
Ms. Amrita Sharma,Adv.
In WP 50/11: Mr. T.R. Andhyarujina,Sr.Adv.
Mr. Ambar Qamaruddin,Adv.
Mr. Romy Chacko,Adv.
In WP 83/11: Mr. Vinay Navare,Adv.
Mr. Keshav Ranjan,Adv.
Mr. Abha R. Sharma,Adv.
In WP 88/11: Mr. Vijay Kumar,Adv.
Mr. Pankaj Kumar,Adv.
Mr. Vishwajit Singh,Adv.
In WP 99/11: Mr. P.D. Gupta,Adv.
Mr. Kamal Gupta,Adv.
Mr. Gagan Gupta,Adv.
In WP 102/11: Mr. Sachin J. Patil,Adv.
Ms. Chandan Ramamurthi,Adv.
In WP 86/11 & Mr. Soumya Chakraborty,Adv.
WP 101/2011: Mr. K.K. Jairpuriar,Adv.
In WP 148/2011: Mr. Anuj Puri,Adv.
Mr. Kunal Verma,Adv.
In WP 104/11: Mr. K. Pararasan,Sr.Adv.
Mr. V. Balaji,Adv.
Ms. Aarthi Rajan,Adv.
Mr. Zoheb Hossain,Adv.
Mr. Rakesh K. Sharma,Adv.
Mr. D.S. Mahra,Adv.
Mr. Satish Parasaran,Adv.
In WP 115/2011: Mr. Shekhar Naphade,Sr.Adv.
Mr. C. Rshmikant,Adv.
Mr. Gaurav Joshi8,Adv.
Mr. Mahesh Agarwal,Adv.
Mr. Rishi Agarwal,Adv.
Mr. E.C. Agrawala,Adv.
Mr. Piyush Raheja,Adv.
Ms. Radhika Gautam,Adv.
Mr. Ankit Shah,Adv.
...4/-
178
- 4 -
In WP 118/2011: Mr. K. Parasaran,Sr.Adv.
Mr. R. Balasubramanian,Sr.Adv.
Mr. V. Balaji,Adv.
Mr. A. Subba Rao,Adv.
Mr. Narendra Kumar,Adv.
In WP 154/2011 Mr. D.K. Pandey,Adv.
Mr. Amit Pawan,Adv.
In WP 126/2011 Mr. B.D. Das,Adv.
Mr. Manoj V. George,Adv.
Ms. Shilpam George,Adv.
Mr. N. Neyyappam,Adv.
Mr. Rauf Rahim,Adv.
In WP 176/2011: Mr. Shekhar Naphade,Sr.Adv.
Mr. P. Ramesh Kumar,Adv.
Mr. Rahul Dhawan,Adv.
Mr. Vishesh Issar,Adv,.
Ms. Shobana Masters,Adv.
Mr. Anant Bhushan,Adv.
In WP 205/2011: Mr. R. Balasubramanian,Sr.Adv.
Mr. V. Balaji,Adv.
Mr. Xavier Arulraj,Adv.
Mr. C. Kannan,Adv.
Mr. Rakesh K. Sharma,Adv.
In WP 186/2011: Mr. B.D. Das,Adv.
Mr. Manoj V. George,Adv.
Mr. Aniruddha P. Mayee,Adv.
In WP 238/2011 & Mr. S. Ravi Shankar,Adv.
WP 239/2011: Mr. R. Yamunah Nachiar,Adv.
Mr. Sharath,Adv.
For Impleadment: Mr. Vikramjit Banerjee,Adv.
Ms. Shally Bhasin Maheshwari,Adv.
Mr. Rishi Maheshwari,Adv.
Dr. M.P. Raju,Adv.
Dr. Ashwani Bhardwaj,Adv.
Ms. Prabha Swami,Adv.
...5/-
179
- 5 -
For Intervenor(s): Mr. Shekhar Naphade,Sr.Adv.
Mr. C. Rashmikant,Adv.
Mr. Gaurav Joshi,Adv.
Mr. Mahesh Agarwal,Adv.
Mr. Rishi Agarwal,Adv.
Mr. E.C. Agrawala,Adv.
Mr. Piyush Raheja,Adv.
Ms. Radhika Gautam,Adv.
Mr. Ankit Shah,Adv.
I.A. No.7: Ms. Menaka Guruswamy,Adv.
Mr. Bipin Aspatwar,Adv.
Mr. Mohit Kumar Shah,Adv.
Mr. Huzefa Ahmadi,Adv.
Mr. Pradhuman Gohil,Adv.
Mr. Vikas Singh,Adv.
Mr. S. Hari Haran,Adv.
Ms. Charu Mathur,Adv.
I.A. No.14: Dr. Rajeev Dhavan,Sr.Adv.
Mr. Nikhil Nayyar,Adv.
Mr. T.V.S. Raghavendra Sreyas,Adv.
In I.A. No.15: Mr. Divya Jyoti Jaipuriar,Adv.
Ms. Jyoti Mendiratta,Adv.
Ms. Puja Sharma,Adv.
Mr. Amar Dave,Adv.
Ms. Garima Parshad,Adv.
Mr. K. Gautham,Adv.
Ms. Radhika Gautam,Adv.
Mr. E.C. Agrawala,Adv.
Mr. Aneesh Kumar Gupta,Adv.
Mr. Gopal Sankaranarayanan,Adv.
Mr. Rohit Bhat,Adv.
Mr. Senthil Jagadeesan,Adv.
Mr. Sanjay Kumar Visen,Adv.
Mr. K.N. Mishra,Adv.
Mr. Raman Kumar Srivastava,Adv.
Mr. Ashish Wad,Adv.
M/s. J.S. Wad and Co.,Advs.
...6/-
180
- 6 -
For Respondent(s) Mr. Goolam E. Vahanvati,AG.
Ms. Indira Jaising,ASG.
Mr. Rohit Sharma,Adv.
Mr. Anoopam N. Prasad,Adv.
Mr. Nishanth Patil,Adv.
Ms. Naila Jung,Adv.
Mr. Anandh Kannan,Adv.
Ms. Supriya Jain,Adv.
Mr. S.S. Rawat,Adv.
Ms. Rekha Pandey,Adv.
Mr. I.J. Singh,Adv.
Mr. D.S. Mahra,Adv.
For Maharashtra: Mr. Sanjay V. Kharde,Adv.
Ms. Asha G. Nair,Adv.
For Bihar: Mr. Gopal Singh,Adv.
Mr. Manish Kumar,Adv.
For Puducherry: Mr. V.G. Pragasam,Adv.
For Tamil Nadu: Mr. S. Thananjayan,Adv.
For Andhra Pradesh: Mr. G.N. Reddy,Adv.
Mr. C. Kannan,Adv.
State of Haryana: Mr. Manjit Singh,Addl.Adv.Genl.
Mr. Tarjit Singh,Adv.
Mr. Kamal Mohan Gupta,Adv.
Hon'ble the Chief Justice pronounced His
Lordship's judgement on behalf of Himself and
Hon'ble Mr. Justice Swatanter Kumar disposing of
writ petitions with no order as to costs.
Hon'ble Mr. Justice K.S. Radhakrishnan
pronounced His Lordship's judgement disposing of
writ petitions.
Conclusion (according to majority):
"20. Accordingly, we hold that the Right of
Children to Free and Compulsory Education Act, 2009
is constitutionally valid and shall apply to the
following:
...7/-
181
- 7 -
(i) a school established, owned or controlled
by the appropriate Government or a local
authority;
(ii) an aided school including aided minority
school(s) receiving aid or grants to meet
whole or part of its expenses from the
appropriate Government or the local
authority;
(iii) a school belonging to specified category;
and
(iv) an unaided non-minority school not
receiving any kind of aid or grants to meet
its expenses from the appropriate
Government or the local authority.
However, the said 2009 Act and in particular
Sections 12(1)(c) and 18(3) infringes the
fundamental freedom guaranteed to unaided minority
schools under Article 30(1) and, consequently,
applying the R.M.D. Chamarbaugwalla v. Union of
India [1957 SCR 930] principle of severability,
the said 2009 Act shall not apply to such schools.
21. This judgment will operate from today. In
other words, this will apply from the academic
year 2012-13. However, admissions given by
unaided minority schools prior to the
pronouncement of this judgment shall not be
reopened.
22. Subject to what is stated above, the writ
petitions are disposed of with no order as to
costs."
Interlocutory applications are also disposed
of.
[ T.I. Rajput ] [ Madhu Saxena ]
A.R.-cum-P.S. Assistant Registrar
[Two Signed Reportable Judgements are placed on the file]
