Education - clause (5) of Art. 15 of Constitution - Constitutional Validity of Admission to socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in to Minority Institutions - Constitution Bend declared as unconstitutional - we hold that the Constitution (Ninety-third Amendment) Act, 2005 inserting clause (5) of Article 15 of the Constitution and the Constitution (Eighty-Sixth Amendment) Act, 2002 inserting Article 21A of the Constitution do not alter the basic structure or framework of the Constitution and are constitutionally valid. We also hold that the 2009 Act is not ultra vires Article 19(1)(g) of the Constitution. We, however, hold that the 2009 Act insofar as it applies to minority schools, aided or unaided, covered under clause (1) of Article 30 of the Constitution is ultra vires the Constitution. Accordingly, Writ Petition (C) No.1081 of 2013 filed on behalf of Muslim Minority Schools Managers’ Association is allowed and Writ Petition (C) Nos.416 of 2012, 152 of 2013, 60 of 2014, 95 of 2014, 106 of 2014, 128 of 2014, 144 of 2014, 145 of 2014, 160 of 2014 and 136 of 2014 filed on behalf of non-minority private unaided educational
institutions are dismissed. =
we are called upon to decide on
the validity of clause (5) of Article 15 of the Constitution inserted by
the Constitution (Ninety-third Amendment) Act, 2005 with effect from
20.01.2006 and on the validity of Article 21A of the Constitution inserted
by the Constitution (Eighty-Sixth Amendment) Act, 2002 with effect from
01.04.2010.
2. Clause (5) of Article 15 of the Constitution reads as follows:
“Nothing in this article or in sub-clause (g) of clause (1) of
article 19 shall prevent the State from making any special
provision, by law, for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled
Castes or the Scheduled Tribes in so far as such special
provisions relate to their admission to educational institutions
including private educational institutions, whether aided or
unaided by the State, other than the minority educational
institutions referred to in clause (1) of article 30.” =
When we look at the 2009 Act, we find that Section 12(1)(b) read with
Section 2(n) (iii) provides that an aided school receiving aid and grants,
whole or part, of its expenses from the appropriate Government or the local
authority has to provide free and compulsory 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. Thus, a minority aided school is put under a legal
obligation to provide free and compulsory elementary education to children
who need not be children of members of the minority community which has
established the school. We also find that under Section 12(1)(c) read
with Section 2(n)(iv), an unaided school has to admit into twenty-five per
cent of the strength of class I children belonging to weaker sections and
disadvantaged groups in the neighbourhood. Hence, unaided minority schools
will have a legal obligation to admit children belonging to weaker sections
and disadvantaged groups in the neighbourhood who need not be children of
the members of the minority community which has established the school.
While discussing the validity of clause (5) of Article 15 of the
Constitution, we have held that members of communities other than the
minority community which has established the school cannot be forced upon a
minority institution because that may destroy the minority character of the
school. In our view, if the 2009 Act is made applicable to minority
schools, aided or unaided, the right of the minorities under Article 30(1)
of the Constitution will be abrogated. Therefore, the 2009 Act insofar it
is made applicable to minority schools referred in clause (1) of Article 30
of the Constitution is ultra vires the Constitution. We are thus of the
view that the majority judgment of this Court in Society for Unaided
Private Schools of Rajasthan v. Union of India & Anr. (supra) insofar as it
holds that the 2009 Act is applicable to aided minority schools is not
correct.
47. In the result, we hold that the Constitution (Ninety-third Amendment)
Act, 2005 inserting clause (5) of Article 15 of the Constitution and the
Constitution (Eighty-Sixth Amendment) Act, 2002 inserting Article 21A of
the Constitution do not alter the basic structure or framework of the
Constitution and are constitutionally valid. We also hold that the 2009
Act is not ultra vires Article 19(1)(g) of the Constitution. We, however,
hold that the 2009 Act insofar as it applies to minority schools, aided or
unaided, covered under clause (1) of Article 30 of the Constitution is
ultra vires the Constitution. Accordingly, Writ Petition (C) No.1081 of
2013 filed on behalf of Muslim Minority Schools Managers’ Association is
allowed and Writ Petition (C) Nos.416 of 2012, 152 of 2013, 60 of 2014, 95
of 2014, 106 of 2014, 128 of 2014, 144 of 2014, 145 of 2014, 160 of 2014
and 136 of 2014 filed on behalf of non-minority private unaided educational
institutions are dismissed. All I.As. stand disposed of. The parties,
however, shall bear their own costs.
2014 ( May.Part) http://judis.nic.in/supremecourt/filename=41505
R.M. LODHA, A.K. PATNAIK, SUDHANSU JYOTI MUKHOPADHAYA, DIPAK MISRA, FAKKIR MOHAMED IBRAHIM KALIFULLA
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) No. 416 OF 2012
Pramati Educational & Cultural
Trust ® & Ors. …
Petitioners
Versus
Union of India & Ors. … Respondents
WITH
WRIT PETITION (C) No. 152 OF 2013,
WRIT PETITION (C) No.1081 OF 2013,
WRIT PETITION (C) No. 60 OF 2014,
WRIT PETITION (C) No. 95 OF 2014,
WRIT PETITION (C) No.106 OF 2014,
WRIT PETITION (C) No.128 OF 2014,
WRIT PETITION (C) No.144 OF 2014,
WRIT PETITION (C) No.145 OF 2014,
WRIT PETITION (C) No.160 OF 2014,
AND
WRIT PETITION (C) No.136 OF 2014
J U D G M E N T
A. K. PATNAIK, J.
This is a reference made by a three-Judge Bench of this Court by
order dated 06.09.2010 in Society for Unaided Private Schools of Rajasthan
v. Union of India & Anr. [(2012) 6 SCC 102] to a Constitution Bench. As
per the aforesaid order dated 06.09.2010, we are called upon to decide on
the validity of clause (5) of Article 15 of the Constitution inserted by
the Constitution (Ninety-third Amendment) Act, 2005 with effect from
20.01.2006 and on the validity of Article 21A of the Constitution inserted
by the Constitution (Eighty-Sixth Amendment) Act, 2002 with effect from
01.04.2010.
2. Clause (5) of Article 15 of the Constitution reads as follows:
“Nothing in this article or in sub-clause (g) of clause (1) of
article 19 shall prevent the State from making any special
provision, by law, for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled
Castes or the Scheduled Tribes in so far as such special
provisions relate to their admission to educational institutions
including private educational institutions, whether aided or
unaided by the State, other than the minority educational
institutions referred to in clause (1) of article 30.”
Clause (5) of Article 15 of the Constitution, therefore, enables the State
to make a special provision, by law, for the advancement of socially and
educationally backward classes of citizens or for the Scheduled Castes and
Scheduled Tribes insofar as such special provisions relate to their
admission to educational institutions including private educational
institutions, whether aided or unaided by the State, other than the
minority educational institutions referred to in clause (1) of Article 30
of the Constitution. The constitutional validity of clause (5) of Article
15 of the Constitution insofar as it enables the State to make special
provisions relating to admission to educational institutions of the State
and educational institutions aided by the State was considered by a
Constitution Bench of this Court in Ashoka Kumar Thakur v. Union of India &
Ors. [(2008) 6 SCC 1] and the Constitution Bench held in the aforesaid case
that clause (5) of Article 15 is valid and does not violate the “basic
structure” of the Constitution so far as it relates to the State-maintained
institutions and aided educational institutions. In the aforesaid case,
however, the Constitution Bench left open the question whether clause (5)
of Article 15 was constitutionally valid or not so far as “private unaided”
educational institutions are concerned, as such “private unaided”
educational institutions were not before the Court. This batch of writ
petitions has been filed by private unaided educational institutions and we
are called upon to decide whether clause (5) of Article 15 of the
Constitution so far as it relates to “private unaided” educational
institutions is valid and does not violate the basic structure of the
Constitution.
3. Article 21A of the Constitution reads as follows:
“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.".
Thus, Article 21A of the Constitution, provides that 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.
Parliament has made the law contemplated by Article 21A by enacting the
Right of Children to Free and Compulsory Education Act, 2009 (for short
‘the 2009 Act’). The constitutional validity of the 2009 Act was
considered by a three-Judge Bench of the Court in Society for Unaided
Private Schools of Rajasthan v. Union of India & Anr. [(2012) 6 SCC 1].
Two of the three Judges have held the 2009 Act to be constitutionally
valid, but they have also held that the 2009 Act is not applicable to
unaided minority schools protected under Article 30(1) of the Constitution.
In the aforesaid case, however, the three-Judge Bench did not go into the
question whether clause (5) of Article 15 or Article 21A of the
Constitution is valid and does not violate the basic structure of the
Constitution. In this batch of the writ petitions filed by private unaided
institutions, the constitutional validity of clause (5) of Article 15 and
of Article 21A has to be decided by this Constitution Bench.
4. Both clause (5) of Article 15 and Article 21A were inserted in the
Constitution by Parliament by exercise of its power of amendment under
Article 368 of the Constitution. A Bench of thirteen-Judges of this Court
in His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala &
Anr. [(1973) 4 SCC 225] considered the scope of the amending power of
Parliament under Article 368 of the Constitution and the majority of the
Judges held that Article 368 does not enable Parliament to alter the basic
structure or framework of the Constitution. Hence, we are called upon to
decide in this reference the following two substantial questions of law:
i) Whether by inserting clause (5) in Article 15 of the Constitution
by the Constitution (Ninety-third Amendment) Act, 2005, Parliament
has altered the basic structure or framework of the Constitution.
ii) Whether by inserting Article 21A of the Constitution by the
Constitution (Eighty-Sixth Amendment) Act, 2002, Parliament has
altered the basic structure or framework of the Constitution.
Validity of clause (5) of Article 15 of the Constitution
Contentions of learned counsel for the petitioners:
5. Mr. Mukul Rohatgi, learned senior counsel for the petitioners in Writ
Petition (C) No.416 of 2012, submitted that in T.M.A. Pai Foundation & Ors
v. State of Karnataka & Ors. [(2002) 8 SCC 481] the majority of the Judges
of the eleven-Judge Bench speaking through Kirpal C.J. have held that the
fundamental right to carry on any occupation under Article 19(1)(g) of the
Constitution includes the right to run and administer a private unaided
educational institution. He submitted that in Minerva Mills Ltd. & Ors. v.
Union of India & Ors. [(1980) 3 SCC 625] Chandrachud, CJ., writing the
judgment for the majority of the Judges of the Constitution Bench, has held
that Articles 14, 19 and 21 of the Constitution constitute the golden
triangle which affords to the people of this country an assurance that the
promise held forth by the Preamble will be performed by ushering an
egalitarian era through the discipline of fundamental rights, that is,
without emasculation of the rights to liberty and equality which alone can
help preserve the dignity of the individual. He submitted that in the
aforesaid case, the Constitution Bench held that Section 4 of the
Constitution (Forty-second Amendment) Act is beyond the amending power of
Parliament and is void since it damages the basic or essential features of
the Constitution and destroys its basic structure by a total exclusion of
challenge to any law on the ground that it is inconsistent with, or takes
away or abridges any of the rights conferred by Article 14 or Article 19 of
the Constitution. Mr. Rohatgi submitted that Article 19(1)(g) of the
Constitution is, therefore, a basic feature of the Constitution and this
basic feature is destroyed by providing in clause (5) of Article 15 of the
Constitution that nothing in Article 19(1)(g) of the Constitution shall
prevent the State from making any special provision, by law, for the
advancement of any socially and educationally backward classes of citizens
or for the Scheduled Castes or the Scheduled Tribes in so far as such
special provisions relate to their admission to educational institutions
including private educational institutions. Mr. Rohatgi explained that a
nine-Judge Bench of this Court in I.R. Coelho (Dead) by LRs. v. State of
T.N. [(2007) 2 SCC 1] relying on the aforesaid judgment in Minerva Mills
case (supra) has similarly held that Articles 14, 19 and 21 of the
Constitution stand on altogether a different footing and after the
evolution of the basic structure doctrine in Kesavananda Bharati (supra),
it will not be open to immunize legislation made by Parliament from
judicial scrutiny on the ground that these fundamental rights are not part
of the basic structure of the Constitution. He submitted that in the
aforesaid judgment, this Court, therefore, has also held that the existence
of the power of Parliament to amend the Constitution at will, with
requisite voting strength, so as to make any kind of laws that excludes
Part III including the power of judicial review under Article 32 is
incompatible with the basic structure of the Constitution and, therefore,
such an exercise, if challenged, has to be tested on the touchstone of
basic structure as reflected in Article 21 read with Article 14 and
Article 19 of the Constitution. Mr. Rohatgi submitted that Bhandari, J.
has taken the view in Ashoka Kumar Thakur v. Union of India (supra) that
the imposition of reservation on unaided institutions by the Ninety-third
Amendment has abrogated Article 19(1)(g), a basic feature of the
Constitution and, therefore, the Ninety-third Amendment of the Constitution
is ultra vires the Constitution.
6. Mr. R.F. Nariman, learned senior counsel for the petitioners in Writ
Petition (C ) No.128 of 2014, submitted that clause (5) of Article 15 of
the Constitution is violative of Article 14 of the Constitution inasmuch as
it treats unequals as equals. He argued that clause (5) of Article 15 of
the Constitution fails to make a distinction between aided and unaided
educational institutions and treats both aided and unaided alike in the
matter of making special provisions for advancement of socially and
educationally backward classes of citizens or for the Scheduled Castes and
the Scheduled Tribes insofar as such special provisions relate to their
admission to such educational institutions. He referred to paragraph 55
of the majority judgment of this Court in T.M.A. Pai Foundation (supra) in
which the difference in the administration of private unaided institutions
and government-aided institutions has been noticed. He argued that clause
(5) of Article 15 of the Constitution as its very language indicates does
not apply to minority educational institutions referred to in clause (1) of
Article 30 of the Constitution. He submitted that Article 14 is, thus,
violated because aided minority institutions and unaided minority
institutions cannot be treated alike. Clause (5) of Article 15 of the
Constitution, therefore, is discriminatory and violative of the equality
clause in Article 14 of the Constitution, which is a basic feature of the
Constitution.
7. Mr. Nariman next submitted that clause (5) of Article 15 of the
Constitution is a clear violation of Article 19(1)(g) of the Constitution,
inasmuch as it compels private educational institutions to give up a share
of the available seats to the candidates chosen by the State and such
appropriation of seats would not be a regulatory measure and not a
reasonable restriction on the right under Article 19(1)(g) of the
Constitution within the meaning of Article 19(6) of the Constitution. He
referred to the observations of this Court in P.A. Inamdar & Ors. v. State
of Maharashtra & Ors. [(2005) 6 SCC 537] in paragraph 125 at page 601 that
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
and that unaided institutions, as they are not deriving any aid from State
funds, should have their own admissions following a fair, transparent and
non-exploitative method based on merit. He vehemently submitted that when
reservation in favour of the Scheduled Castes and the Scheduled Tribes and
other socially and educationally backward classes of citizens is made in
admission to private educational institutions and unaided private
educational institutions by the State, such private educational
institutions will no longer be institutions of excellence. He submitted
that in T.M.A. Pai Foundation (supra), the majority of the Judges have held
that private unaided educational institutions impart education and that the
State cannot take away the choice in matters of selection of students for
admission and clause (5) of Article 15 of the Constitution insofar as it
enables the State to take away this choice for admission of students is
violative of freedom of private educational institutions under Article
19(1)(g) of the Constitution.
8. Mr. Nariman next submitted that in Mohini Jain (Miss) v. State of
Karnataka & Ors. [(1992) 3 SCC 666], this Court has held that the “right to
life” is a compendious expression with all those rights which the Courts
must enforce because they are basic to the dignified enjoyment of life and
that the dignity of an individual cannot be assured unless it is
accompanied by the right to education. He submitted that under Article
51A(j) of the Constitution, it is a duty of every citizen of India to
strive towards excellence in all spheres of individual and collective
activity so that the nation constantly rises to higher levels of endeavour
and achievement. He argued that every citizen can strive towards
excellence through education by studying in educational institutions of
excellence. He submitted that clause (5) of Article 15 of the Constitution
in so far as it enables the State to make special provisions relating to
admission to private educational institutions for socially and
educationally backward classes of citizens or for the Scheduled Castes and
the Scheduled Tribes will affect also this right under Article 21 read with
Article 51A(j) of the Constitution.
9. Mr. Nariman submitted that clause (5) of Article 15 of the
Constitution has been brought in by an amendment to achieve the Directive
Principles of State Policy in Part IV of the Constitution as well as the
goals of social and economic justice set out in the Preamble of the
Constitution, but the majority of the Judges speaking through Chandrachud,
CJ., have held in Minerva Mills case (supra) that the goals set out in Part
IV of the Constitution have to be achieved without the abrogation of the
means provided for by Part III of the Constitution. He submitted that in
the aforesaid majority judgment in Minerva Mills case (supra) authored by
Chandrachud, CJ., it has also been observed that Parts III and IV together
constitute the core of our Constitution and anything that destroys the
balance between the two parts will ipso facto destroy an essential element
of the basic structure of our Constitution. He submitted that clause (5)
of Article 15 of the Constitution inasmuch as it is violative of Articles
14, 19(1)(g) and 21 of the Constitution destroys the basic feature of the
Constitution and is, therefore, beyond the amending power of Parliament.
10. Dr. Rajeev Dhavan, learned senior counsel appearing for the
petitioners in W.P.(C) No.152 of 2013, submitted that two tests have to be
applied for determining whether a constitutional amendment is violative of
basic structure in so far as it affects fundamental rights, and these two
tests are the ‘identity test’ and the ‘width test’. He submitted that the
Court has to see whether the identity of a fundamental right as judicially
determined is not destroyed by the width of the power introduced by the
amendment of the Constitution and if the conclusion is that the width of
the power of the State vested by the constitutional amendment is such as to
destroy the essence of the right, the amendment can be held to destroy the
basic structure of the Constitution. In support of this proposition he
relied on the judgment of this Court in M. Nagaraj and Others v. Union of
India and Others [(2006) 8 SCC 212].
11. Mr. Dhavan submitted that in T.M.A. Pai Foundation case (supra) the
majority judgment has determined the content of the right of a private
educational institution under Article 19(1)(g) of the Constitution and the
content of this right comprises the (a) charity, (b) autonomy, (c)
voluntariness, (d) non-sharing of seats between the State Governments and
the private institutions, (e) co-optation and (f) reasonableness
principles. He submitted that clause (5) of Article 15 of the Constitution
inserted by Parliament by way of amendment, however, provides that nothing
in Article 19(1)(g) of the Constitution shall prevent the State from making
any special provision, by law, for admission to private educational
institutions of persons belonging to socially and educationally backward
classes of citizens or for the Scheduled Castes or the Scheduled Tribes.
He vehemently argued that by clause (5) of Article 15 of the Constitution
the power that is vested in the State is such that it can destroy the
essence of the right of private educational institution under Article
19(1)(g) of the Constitution as determined by this Court in T.M.A. Pai
Foundation case (supra) and therefore the constitutional amendment
inserting clause (5) in Article 15 of the Constitution is destructive of
the basic structure of the Constitution.
12. Mr. Anil B. Divan, learned senior counsel appearing for the
petitioners in W.P.(C) No.60 of 2014 and W.P.(C) No.160 of 2014 submitted
that in the case of Edward A. Boyd and George H. Boyd v. Unites States
(1884) 116 U.S. 616 Bradley J., has observed that it will be the duty of
the courts to be watchful for the constitutional rights of the citizens and
against any stealthy encroachments into these rights. He submitted that in
Dwarkadas Shrinivas v. The Sholapur Spining & Weaving Co. Ltd. and Others
(AIR 1954 SC 119) Mahajan J., has held that in dealing with constitutional
matters it is always well to bear in mind these observations of Bradley J.
He submitted that while deciding on validity of clause (5) of Article 15 of
the Constitution, we should bear in mind the aforesaid observations of
Bradley J. He submitted that Chandrachud, CJ. in Minerva Mills Ltd. & Ors.
v. Union of India & Ors. (supra) has referred to the observations of
Brandies J. that the need to protect liberty is the greatest when the
government purposes are beneficient particularly when political pressures
exercised by numerically large groups can tear the country asunder by
leaving it to the legislature to pick and choose favoured areas and
favourite classes for preferential treatment. He submitted that clause (5)
of Article 15 of the Constitution is an amendment made by Parliament to
appease socially and educationally backward classes of citizens and the
Scheduled Castes or the Scheduled Tribes for political gains and it is for
the Court to protect the fundamental right of private educational
institutions under Article 19(1)(g) of the Constitution as interpreted by
this Court in T.M.A. Pai Foundation.
13. Mr. Divan next submitted that clause (5) of Article 15 of the
Constitution as its very language indicates, applies to non-minority
private educational institutions but does not apply to minority educational
institutions referred to in clause (1) of Article 30 of the Constitution.
He argued that there is absolutely no rationale for exempting the minority
educational institutions from the purview of clause (5) of Article 15 of
the Constitution and clause (5) of Article 15 of the Constitution really
gives a favourable treatment to the minority educational institutions and
is violative of the equality clause in Article 14 of the Constitution. He
relied on the decision of this Court in The Ahmedabad St. Xavier’s College
Society and Another v. State of Gujarat and Another [(1974) 1 SCC 717] to
submit that the whole object of conferring the right on the minority under
Article 30 of the Constitution is to ensure that there will be an equality
between the majority and the minority. He submitted that H.R. Khanna J. in
his judgment in the aforesaid case has clarified that the idea of giving
some special rights to the minorities is not to have a kind of a privileged
or pampered section of the population but to give to the minorities a sense
of security and a feeling of confidence. He submitted that Kirpal C.J.
speaking for majority in T.M.A. Pai Foundation (supra) has similarly held
that the essence of Article 30(1) of the Constitution is to ensure equal
treatment between the majority and the minority institutions that laws of
the land must apply equally to majority institutions as well as to minority
institutions and minority institutions must be allowed to do what the non-
minority institutions are permitted to do. Mr. Divan submitted that clause
(5) of Article 15 of the Constitution insofar as it excludes minority
institutions referred to in Article 30(1) of the Constitution is also
violative of secularism which is a basic feature of the Constitution. He
referred to the judgment in Dr. M. Ismail Faruqui and Others v. Union of
India and Others [(1994) 6 SCC 360] in which this Court has held that the
concept of secularism is one facet of right to equality woven as the
central golden thread in the fabric depicting the pattern of the scheme in
our Constitution.
Contentions of learned counsel for the Union of India:
14. Mr. Mohan Parasaran, learned Solicitor General, submitted that this
Court has held in Ashoka Kumar Thakur v. Union of India (supra) that
clause (5) of Article 15 of the Constitution is only an enabling
provision empowering the State to make a special provision, by law,
for the advancement of socially and educationally backward classes of
citizens or for the Scheduled Castes and the Scheduled Tribes insofar
as such special provisions relate to their admission to educational
institutions including private educational institutions. He submitted
that it will be clear from paragraphs 53 and 68 of the judgment of the
eleven Judge Bench of this Court in T.M.A. Pai Foundation (supra) that
reserving a small percentage of seats in private educational
institutions, aided or unaided, for weaker, poorer and backward
sections of society did not in any way affect the right of private
educational institutions under Article 19(1)(g) of the Constitution.
He argued that after the judgment of this Court in T.M.A. Pai
Foundation (supra) a five-Judge Bench of this Court in Islamic Academy
of Education & Anr. v. State of Karnataka & Ors. [(2003) 6 SCC 697 was
of the view that as per the judgment in T.M.A. Pai Foundation (supra)
in case of non-minority professional colleges a percentage of seats
could be reserved by the Government for poorer and backward sections.
He submitted that this view taken by the five-Judge Bench of this
Court in Islamic Academy of Education & Anr. v. State of Karnataka &
Ors. (supra), however, did not find favour with a seven-Judge Bench of
this Court in P.A. Inamdar (supra) which held that there is nothing in
the judgment of this Court in T.M.A. Pai Foundation (supra) allowing
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
or for enforcing the reservation policy of the State. He submitted
that, therefore, Parliament introduced clause (5) in Article 15 of the
Constitution by the Constitution (Ninety-Third Amendment) Act, 2005
providing that the State may make a special provision, by law, for the
advancement of socially and educationally backward classes of citizens
or for the Scheduled Castes and the Scheduled Tribes insofar as such
special provisions relate to their admission to educational
institutions including private educational institutions, whether aided
or unaided by the State. He vehemently argued that clause (5) of
Article 15 introduced by the constitutional amendment is consistent
with the right to establish and administer the private educational
institutions under Article 19(1)(g) of the Constitution as interpreted
by T.M.A. Pai Foundation (supra) and, therefore, does not violate the
right under Article 19(1)(g) of the Constitution.
15. Mr. Parasaran next submitted that minority institutions referred to in
Article 30 of the Constitution have been excluded from the purview of
clause (5) of Article 15 of the Constitution because the Constitution
has given a special status to minority institutions. He submitted
that in the case of Ashoka Kumar Thakur v. Union of India (supra),
this Court has held that exclusion of minority educational
institutions from clause (5) of Article 15 of the Constitution is not
violative of Article 14 of the Constitution as the minority
educational institutions, by themselves, are a separate class and
their rights are protected by other constitutional provisions. He
submitted that the argument that clause (5) of Article 15 of the
Constitution is violative of equality clause in Article 14 of the
Constitution is therefore misconceived.
Opinion of the Court on the validity of clause (5) of Article 15 of the
Constitution:
16. We have considered the submissions of learned counsel for the
parties and we find that the object of clause (5) of Article 15 is to
enable the State to give equal opportunity to socially and educationally
backward classes of citizens or to the Scheduled Castes and the Scheduled
Tribes to study in all educational institutions other than minority
educational institutions referred in clause (1) of Article 30 of the
Constitution. This will be clear from the Statement of Objects and Reasons
of the Bill, which after enactment became the Constitution (Ninety-Third
Amendment) Act, 2005 extracted hereinbelow:
“Greater access to higher education including professional
education to a larger number of students belonging to the socially
and educationally backward classes of citizens or for the
Scheduled Castes and Scheduled Tribes has been a matter of major
concern. At present, the number of seats available in aided or
State maintained institutions, particularly in respect of
professional education, is limited in comparison to those in
private unaided institutions.
2. It is laid down in article 46, as a directive principle of
State policy, that the State shall promote with special care the
educational and economic interests of the weaker sections of the
people and protect them from social injustice. To promote the
educational advancement of the socially and educationally backward
classes of citizens or of the Scheduled Castes and Scheduled
Tribes in matters of admission of students belonging to these
categories in unaided educational institutions, other than the
minority educational institutions referred to in clause (1) of
article 30 of the Constitution, it is proposed to amplify article
15.
3. The Bill seeks to achieve the above objects.”
Clause (1) of Article 15 of the Constitution provides that the State shall
not discriminate against any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them and clause (2) of Article 15 of
the Constitution provides that no citizen shall, on grounds of religion,
race, caste, sex, place of birth or any of them, be subject to any
disability, liability, restriction or condition with regard to (a) access
to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public
resort maintained wholly or partly out of State funds or dedicated to the
use of general public. These provisions were made to ensure that every
citizen irrespective of his religion, race, caste, sex, place of birth or
any of them, is given the equal treatment by the State and he has equal
access to public places. Despite these provisions in Article 15 of the
Constitution as originally adopted, some classes of citizens, Scheduled
Castes and Scheduled Tribes have remained socially and educationally
backward and have also not been able to access educational institutions for
the purpose of advancement. To amplify the provisions of Article 15 of the
Constitution as originally adopted and to provide equal opportunity in
educational institutions, clause (5) has been inserted in Article 15 by the
constitutional amendment made by the Parliament by the Ninety-Third
Amendment Act, 2005. As the object of clause (5) of Article 15 of the
Constitution is to provide equal opportunity to a large number of students
belonging to the socially and educationally backward classes of citizens or
for the Scheduled Castes and the Scheduled Tribes to study in educational
institutions and equality of opportunity is also the object of clauses
(1)and (2) of Article 15 of the Constitution, we cannot hold that clause
(5) of Article 15 of the Constitution is an exception or a proviso
overriding Article 15 of the Constitution, but an enabling provision to
make equality of opportunity promised in the Preamble in the Constitution a
reality.
17. For this view, we are supported by the majority judgment of this
Court in State of Kerala & Anr. v. N.M. Thomas & Ors. [(1976) 2 SCC 310] in
which this Court has held that clause (4) of Article 16 of the Constitution
which has opening words similar to the opening words in clause (5) of
Article 15 is not an exception or a proviso to Article 16, but is a
provision intended to give equality of opportunity to backward classes of
citizens in matters of public employment. Similarly, in Indra Sawhney &
Ors. v. Union of India & Ors. [1992 Supp (3) SCC 217], this Court following
the majority judgment in the case of State of Kerala & Anr. v. N.M. Thomas
& Ors. (supra) held that clause (4) of Article 16 was not an exception to
clause (1) of Article 16, but is an enabling provision to give effect to te
equality of opportunity in matters of public employment. These two
authorities have also been cited by K.G. Balakrishnan, CJ., in his judgment
in Ashoka Kumar Thakur v. Union of India (supra) to hold that clause (5) of
Article 15 of the Constitution is not an exception to clause (1) of Article
15, but may be taken as an enabling provision to carry out the
constitutional mandate of equality of opportunity.
18. We may now consider whether clause (5) of Article 15 of the
Constitution has destroyed the right under Article 19(1)(g) of the
Constitution to establish and administer private educational institutions.
It is for the first time that this Court held in T.M.A. Pai Foundation
(supra) that the establishment and running of an educational institution
“is occupation” within the meaning of Article 19(1)(g) of the Constitution.
In paragraph 20 of the majority judgment, while dealing with the four
components of the rights under Articles 19 and 26(a) of the Constitution in
respect of private unaided non-minority educational institutions, Kirpal,
CJ. has held that education is per se regarded as an activity that is
charitable in nature. Kirpal, CJ. has further held in paragraphs 53 and
68:
“53. With regard to the core components of the rights under
Articles 19 and 26(a), it must be held that while the State has
the right to prescribe qualifications necessary for admission,
private unaided colleges have the right to admit students of their
choice, subject to an objective and rational procedure of
selection and the compliance with conditions, if any, requiring
admission of a small percentage of students belonging to weaker
sections of the society by granting them freeships or
scholarships, if not granted by the Government…………………..”
“68. It would be unfair to apply the same rules and regulations
regulating admission to both aided and unaided professional
institutions. It must be borne in mind that unaided professional
institutions are entitled to autonomy in their administration
while, at the same time, they do not forego or discard the
principle of merit. It would, therefore, be permissible for the
university or the Government, at the time of granting recognition,
to require a private unaided institution to provide for merit-
based selection while, at the same time, giving the management
sufficient discretion in admitting students. This can be done
through various methods. For instance, a certain percentage of the
seats can be reserved for admission by the management out of those
students who have passed the common entrance test held by itself
or by the State/university and have applied to the college
concerned for admission, while the rest of the seats may be filled
up on the basis of counselling by the State agency. This will
incidentally take care of poorer and backward sections of the
society. The prescription of percentage for this purpose has to be
done by the Government according to the local needs and different
percentages can be fixed for minority unaided and non-minority
unaided and professional colleges. The same principles may be
applied to other non-professional but unaided educational
institutions viz. graduation and postgraduation non-professional
colleges or institutes.
19. Thus, the content of the right under Article 19(1)(g) of the
Constitution to establish and administer private educational
institutions, as per the judgment of this Court in T.M.A. Pai Foundation
(supra), includes the right to admit students of their choice and
autonomy of administration, but this Court has made it clear in T.M.A.
Pai Foundation (supra) that this right and autonomy will not be affected
if a small percentage of students belonging to weaker and backward
sections of the society were granted freeships or scholarships, if not
granted by the Government. This was the charitable element of the right
to establish and administer private educational institutions under
Article 19(1)(g) of the Constitution. Hence, the identity of the right
of private educational institutions under Article 19(1)(g) of the
Constitution as interpreted by this Court, was not to be destroyed by
admissions from amongst educationally and socially backward classes of
citizens as well as the Scheduled Castes and the Scheduled Tribes.
20. In P.A. Inamdar (supra), this Court speaking through Lahoti, CJ., was,
however, of the view that the judgment in T.M.A. Pai Foundation (supra)
held that there was no power vested on the State under clause (6) of
Article 19 to regulate or control admissions in the unaided educational
institutions so as to compel them to give up a share of the available
seats to the State or to enforce reservation policy of the State on
available seats in unaided professional institutions. This will be
clear from paragraph 125 of the judgment in P.A. Inamdar (supra), which
is extracted hereinbelow:
“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.
21. The reasoning adopted by this Court in P.A. Inamdar (supra), therefore,
is that the appropriation of seats by the State for enforcing a
reservation policy was not a regulatory measure and not reasonable
restriction within the meaning of clause (6) of Article 19 of the
Constitution. As there was no provision other than clause (6) of
Article 19 of the Constitution under which the State could in any way
restrict the fundamental right under Article 19(1)(g) of the
Constitution, Parliament made the Constitution (Ninety-third Amendment)
Act, 2005 to insert clause (5) in Article 15 of the Constitution to
provide that nothing in Article 19(1)(g) of the Constitution shall
prevent the State from making any special provision, by law, for the
advancement of any socially and educationally backward classes of
citizens or for the Scheduled Castes or the Scheduled Tribes in so far
as such special provisions relate to their admission to educational
institutions including private educational institutions, whether aided
or unaided by the State. Clause (5) in Article 15 of the Constitution,
thus, vests a power on the State, independent of and different from, the
regulatory power under clause (6) of Article 19, and we have to examine
whether this new power vested in the State which enables the State to
force the charitable element on a private educational institution
destroys the right under Article 19(1)(g) of the Constitution.
22. According to Dr. Dhavan, the right of a private educational
institution under Article 19(1)(g) of the Constitution as laid down by
this Court in T.M.A. Pai Foundation (supra) has a voluntary element. In
fact, this Court in P.A. Inamdar (supra) has held in paragraph 126 at
page 601 of the SCC that the observations in paragraph 68 of the
judgment in T.M.A. Pai Foundation (supra) merely permit unaided private
institutions to maintain merit as the criterion of admission by
voluntarily agreeing for seat-sharing with the State or adopting
selection based on common entrance test of the State and that there are
also observations in T.M.A. Pai Foundation (supra) to say that they may
frame their own policy to give freeships 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 the weaker and poorer
sections of the society. In our view, all freedoms under which Article
19(1) of the Constitution, including the freedom under Article 19(1)(g),
have a voluntary element but this voluntariness in all the freedoms in
Article 19(1) of the Constitution can be subjected to reasonable
restrictions imposed by the State by law under clauses (2) to (6) of
Article 19 of the Constitution. Hence, the voluntary nature of the
right under Article 19(1)(g) of the Constitution can be subjected to
reasonable restrictions imposed by the State by law under clause (6) of
Article 19 of the Constitution. As this Court has held in T.M.A. Pai
Foundation (supra) and P.A. Inamdar (supra) the State can under clause
(6) of Article 19 make regulatory provisions to ensure the maintenance
of proper academic standards, atmosphere and infrastructure (including
qualified staff) and the prevention of maladministration by those in
charge of the management. However, as this Court held in the aforesaid
two judgments that nominating students for admissions would be an
unacceptable restriction in clause (6) of Article 19 of the
Constitution, Parliament has stepped in and in exercise of its amending
power under Article 368 of the Constitution inserted clause (5) in
Article 15 to enable the State to make a law making special provisions
for admission of socially and educationally backward classes of citizens
or for the Scheduled Castes and Scheduled Tribes for their advancement
and to a very limited extent affected the voluntary element of this
right under Article 19(1)(g) of the Constituion. We, therefore, do not
find any merit in the submission of learned counsel for the petitioners
that the identity of the right of unaided private educational
institutions under Article 19(1)(g) of the Constitution has been
destroyed by clause (5) of Article 15 of the Constitution.
23. We may now examine whether the Ninety-Third Amendment satisfies the
width test. A plain reading of clause (5) of Article 15 would show that
the power of a State to make a law can only be exercised where it is
necessary for advancement of socially and educationally backward classes
of citizens or for the Scheduled Castes and Scheduled Tribes and not for
any other purpose. Thus, if a law is made by the State only to appease
a class of citizen which is not socially or educationally backward or
which is not a Scheduled Caste or Scheduled Tribe, such a law will be
beyond the powers of the State under clause (5) of Article 15 of the
Constitution. A plain reading of clause (5) of Article 15 of the
Constitution will further show that such law has to be limited to making
a special provision relating to admission to private educational
institutions, whether aided or unaided, by the State. Hence, if the
State makes a law which is not related to admission in educational
institutions and relates to some other aspects affecting the autonomy
and rights of private educational institutions as defined by this Court
in T.M.A. Pai Foundation, such a law would not be within the power of
the State under clause (5) of Article 15 of the Constitution. In other
words, power in clause (5) of Article 15 of the Constitution is a guided
power to be exercised for the limited purposes stated in the clause and
as and when a law is made by the State in purported exercise of the
power under clause (5) of Article 15 of the Constitution, the Court will
have to examine and find out whether it is for the purposes of
advancement of any socially and educationally backward classes of
citizens or for the Scheduled Castes and the Scheduled Tribes and
whether the law is confined to admission of such socially and
educationally backward classes of citizens or for the Scheduled Castes
and the Scheduled Tribes to private educational institutions, whether
aided or unaided, and if the Court finds that the power has not been
exercised for the purposes mentioned in clause (5) of Article 15 of the
Constitution, the Court will have to declare the law as ultra vires
Article 19(1)(g) of the Constitution. In our opinion, therefore, the
width of the power vested on the State under clause (5) of Article 15 of
the Constitution by the constitutional amendment is not such as to
destroy the right under Article 19(1)(g) of the Constitution.
24. We may now examine the contention of Mr. Nariman that clause (5) of
Article 15 of the Constitution fails to make a distinction between aided
and unaided educational institutions and treats both aided and unaided
alike in the matter of making special provisions for admission of
socially and educationally backward classes of citizens or for the
Scheduled Castes and Scheduled Tribes. The distinction between a
private aided educational institution and a private unaided educational
institution is that private educational institutions receive aid from
the State, whereas private unaided educational institutions do not
receive aid from the State. As and when a law is made by the State
under clause (5) of Article 15 of the Constitution, such a law would
have to be examined whether it has taken into account the fact that
private unaided educational institutions are not aided by the State and
has made provisions in the law to ensure that private unaided
educational institutions are compensated for the admissions made in such
private unaided educational institutions from amongst socially and
educationally backward classes of citizens or the Scheduled Castes and
the Scheduled Tribes. In our view, therefore, a law made under clause
(5) of Article 15 of the Constitution by the State on the ground that it
treats private aided educational institutions and private unaided
educational institutions alike is not immune from a challenge under
Article 14 of the Constitution. Clause (5) of Article 15 of the
Constitution only states that nothing in Article 15 or Article 19(1)(g)
will prevent the State to make a special provision, by law, for
admission of socially and educationally backward classes of citizens or
for the Scheduled Castes and the Scheduled Tribes to educational
institutions including private educational institutions, whether aided
or unaided by the State. Clause (5) of Article 15 of the Constitution
does not say that such a law will not comply with the other requirements
of equality as provided in Article 14 of the Constitution. Hence, we do
not find any merit in the submission of the Mr. Nariman that clause (5)
of Article 15 of the Constitution that insofar as it treats unaided
private educational institutions and aided private educational
institutions alike it is violative of Article 14 of the Constitution.
25. We may now deal with the contention of Mr. Divan that clause (5) of
Article 15 of the Constitution is violative of Article 14 of the
Constitution as it excludes from its purview the minority institutions
referred to in clause (1) of Article 30 of the Constitution and the
contention of Mr. Nariman that clause (5) of Article 15 excludes both
unaided minority institutions and aided minority institutions alike and
is thus violative of Article 14 of the Constitution. Articles 29(2)
30(1) and 30(2) of the Constitution, which are relevant, for deciding
these contentions, are quoted hereinbelow:
“29. Protection of interests of minorities-(1)………………………………….
(2) No citizen shall be denied admission into any educational
institution maintained by the State or receiving aid out of
State funds on grounds only of religion, race, caste, language
or any of them.
30. Right of minorities to establish and administer educational
institutions-(1) All minorities, whether based on religion or
language, shall have the right to establish and administer
educational institutions of their choice.
(1A) ………………………………………………
(2) The state shall not, in granting aid to educational
institutions, discriminate against any educational institution
on the ground that it is under the management of a minority,
whether based on religion or language.”
On the question whether the right of minority institutions under Article
30(1) of the Constitution would be affected by admission of students who do
not belong to the minority community which has established the
institutions, Kirpal C.J. writing the majority judgment in T.M.A. Pai
Foundation (supra) considered the previous judgments of this Court and then
held in paragraph 149 at page 582 and 583 of the SCC:
“149. Although the right to administer includes within it a
right to grant admission to students of their choice under
Article 30(1), when such a minority institution is granted the
facility of receiving grant-in-aid, Article 29(2) would apply,
and necessarily, therefore, one of the right of administration
of the minorities would be eroded to some extent.
Article 30(2) is an injunction against the state not to
discriminate against the minority educational institution and
prevent it from receiving aid on the ground that the institution
is under the management of a minority. While, therefore, a
minority educational institution receiving grant-in-aid would
not be completely outside the discipline of Article 29(2) of the
Constitution by no stretch of imagination can the rights
guaranteed under Article 30(1) be annihilated. It is this
context that some interplay between Article 29(2) and
Article 30(1) is required. As observed quite aptly in St.
Stephen's case "the fact that Article 29(2) applies to
minorities as well as non-minorities does not mean that it was
intended to nullify the special right guaranteed to minorities
in Article 30(1)." The word "only" used in Article 29(2) is of
considerable significance and has been used for some avowed
purpose. Denying admission to non-minorities for the purpose of
accommodating minority students to a reasonable extent will not
be only on grounds of religion etc., but is primarily meant to
preserve the minority character of the institution and to
effectuate the guarantee under Article 30(1). The best possible
way is to hold that as long as the minority educational
institution permits admission of citizens belonging to the non-
minority class to a reasonable extent based upon merit, it will
not be an infraction of Article 29(2), even though the
institution admits students of the minority group of its own
choice for whom the institution was meant. What would be a
reasonable extent would depend upon variable factors, and it may
not be advisable to fix any specific percentage. The situation
would vary according to the type of institution and the nature
of education that is being imparted in the institution. Usually,
at the school level, although it may be possible to fill up all
the seats with students of the minority group, at the higher
level, either in colleges or in technical institutions, it may
not be possible to fill up all the seats with the students of
the minority group. However, 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. It is for this reason that a
variable percentage of admission of minority students depending
on the type of institution and education is desirable, and
indeed, necessary, to promote the constitutional guarantee
enshrined in both Article 29(2) and Article 30.”
Thus, the law as laid down by this Court is that the minority character of
an aided or unaided minority institution cannot be annihilated by admission
of students from communities other than the minority community which has
established the institution, and whether such admission to any particular
percentage of seats will destroy the minority character of the institution
or not will depend on a large number of factors including the type of
institution.
26. Clause (5) of Article 15 of the Constitution enables the State to make
a special provision, by law, for the advancement of socially and
educationally backward classes of citizens or for the Scheduled Castes
and Scheduled Tribes. Such admissions of socially and educationally
backward classes of citizens or for the Scheduled Castes and the
Scheduled Tribes who may belong to communities other than the minority
community which has established the institution, may affect the right of
the minority educational institutions referred to in clause (1) of
Article 30 of the Constitution. In other words, the minority character
of the minority educational institutions referred to in clause (1) of
Article 30 of the Constitution, whether aided or unaided, may be
affected by admissions of socially and educationally backward classes of
citizens or the Scheduled Castes and the Scheduled Tribes and it is for
this reason that minority institutions, aided or unaided, are kept
outside the enabling power of the State under clause (5) of Article 15
with a view to protect the minority institutions from a law made by the
majority. As has been held by the Constitution Bench of this Court in
Ashoka Kumar Thakur v. Union of India (supra), the minority educational
institutions, by themselves, are a separate class and their rights are
protected under Article 30 of the Constitution, and, therefore, the
exclusion of minority educational institutions from Article 15(5) is not
violative of Article 14 of the Constitution.
27. We may now consider the contention of Mr. Divan that clause (5) of
Article 15 of the Constitution is violative of secularism insofar as it
excludes religious minority institutions referred to in Article 30(1) of
the Constitution from the purview of clause (5) of Article 15 of the
Constitution. In Dr. M. Ismail Faruqui and Others v. Union of India and
Others (supra), this Court has held that the Preamble of the
Constitution read in particular with Articles 15 to 28 emphasis this
aspect and indicates that the concept of secularism embodied in the
constitutional scheme is a creed adopted by the Indian people. Hence,
secularism is no doubt a basic feature of the Constitution, but we fail
to appreciate how clause (5) of Article 15 of the Constitution which
excludes religious minority institutions in clause (1) of Article 30 of
the Constitution is in any way violative of the concept of secularism.
On the other hand, this Court has held in T.M.A. Pai Foundation (supra)
that the essence of secularism in India is the recognition and
preservation of the different types of people, with diverse languages
and different beliefs and Articles 29 and 30 seek to preserve such
differences and at the same time unite the people of India to form one
strong nation. (see paragraph 161 of the majority judgment of Kirpal,
C.J., in T.M.A. Pai Foundation at page 587 of the SCC). In our
considered opinion, therefore, by excluding the minority institutions
referred to in clause (1) of Article 30 of the Constitution, the secular
character of India is maintained and not destroyed.
28. We may now come to the submission of Mr. Nariman that the fundamental
right under Article 21 read with Article 51A(j) of the Constitution is
violated by clause (5) of Article 15 of the Constitution. According to
Mr. Nariman, every person has a right under Article 21 and a duty under
Article 51A(j) to strive towards excellence in all spheres of individual
and collective activity, but this will not be possible if private
educational institutions in which a person studies for the purpose of
achieving excellence are made to admit students from amongst backward
classes of citizens and from the Scheduled Castes and the Scheduled
Tribes. This contention, in our considered opinion, is not founded on
the experience of educational institutions in India. Educational
institutions in India such as Kendriya Vidyalayas, Indian Institute of
Technology, All India Institute of Medical Sciences and Government
Medical Colleges admit students in seats reserved for backward classes
of citizens and for the Scheduled Castes and the Scheduled Tribes and
yet these Government institutions have produced excellent students who
have grown up to be good administrators, academicians, scientists,
engineers, doctors and the like. Moreover, the contention that
excellence will be compromised by admission from amongst the backward
classes of citizens and the Scheduled Castes and the Scheduled Tribes in
private educational institutions is contrary to the Preamble of the
Constitution which promises to secure to all citizens “fraternity
assuring the dignity of the individual and the unity and integrity of
the nation”. The goals of fraternity, unity and integrity of the nation
cannot be achieved unless the backward classes of citizens and the
Scheduled Castes and the Scheduled Tribes, who for historical factors,
have not advanced are integrated into the main stream of the nation.
We, therefore, find no merit in the submission of Mr. Nariman that
clause (5) of Article 15 of the Constitution violates the right under
Article 21 of the Constitution.
29. We accordingly hold that none of the rights under Articles 14, 19(1)(g)
and 21 of the Constitution have been abrogated by clause (5) of Article
15 of the Constitution and the view taken by Bhandari, J. in Ashoka
Kumar Thakur v. Union of India (supra) that the imposition of
reservation on unaided institutions by the Ninety-third Amendment has
abrogated Article 19(1)(g), a basic feature of the Constitution is not
correct. Instead, we hold that the (Ninety-third Amendment) Act, 2005
of the Constitution inserting clause (5) of Article 15 of the
Constitution is valid.
Validity of Article 21A of the Constitution
Contention of the learned counsel for the petitioners:
30. The second substantial question of law which we are called upon to
decide is whether by inserting Article 21A by the Constitution (Eighty-
Sixth Amendment) Act, 2002, the Parliament has altered the basic
structure or framework of the Constitution. Before we refer to the
contentions of the learned counsel for the petitioners, we must
reiterate some facts. Article 21A is titled ‘Right to Education’ and it
provides that 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. Accordingly, the 2009 Act was enacted by
Parliament to provide free and compulsory education to all children of
the age of six to fourteen years. The validity of the 2009 Act was
challenged and considered in Society for Unaided Private Schools of
Rajasthan v. Union of India & Anr. (supra) by a three-Judge Bench of
this Court. Two learned Judges S.H. Kapadia C.J. and Swatanter Kumar J.
held that the 2009 Act 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.
The two learned Judges, however, held that the 2009 Act, in particular
Sections 12(1)(c) and Section 18(3), infringe the fundamental rights
guaranteed to unaided minority schools under Article 30(1) of the
Constitution and therefore the 2009 Act shall not apply to such unaided
minority schools. Differing from the majority opinion expressed by the two
learned Judges, Radhakrishnan J. held that Article 21A casts an obligation
on the State and not on unaided non-minority and unaided minority schools
to provide free and compulsory education to children of the age of six to
fourteen years. After the aforesaid judgment of this Court in Society for
Unaided Private Schools of Rajasthan v. Union of India & Anr. (supra), the
2009 Act was amended by the Right of Children to Free And Compulsory
Education Act, 2009 (Amendment Act, 2012) and by the amendment, it was
provided in sub-section (4) of Section 1 of the 2009 Act that subject to
the provisions of Articles 29 and 30 of the Constitution, the provisions of
the 2009 Act shall apply to conferment of rights on children to free and
compulsory education.
31. Mr. Rohatgi, learned senior counsel for the petitioners in Writ
Petition (C) No.416 of 2012, submitted that Article 21A of the
Constitution creates obligation only upon the State and its
instrumentalities as defined in Article 12 of the Constitution and does
not cast any obligation on a private unaided educational institution.
He submitted that the minority opinion of Radhakrishnan J. in Society
for Unaided Private Schools of Rajasthan v. Union of India & Anr.
(supra) is, therefore, a correct interpretation of Article 21A. He
submitted that if Article 21A is interpreted to include the private
unaided educational institutions within its sweep then it would abrogate
the right under Article 19(1)(g) of the Constitution to establish and
administer private educational institutions which is a basic feature of
the Constitution.
32. Mr. Nariman, learned senior counsel for the petitioners in Writ
Petition (C) No.128 of 2014, submitted that word “State” used in Article
21A of the Constitution would mean the State as defined in Article 12 of
the Constitution and therefore would include the Government and
Parliament of India and the Government and the Legislature of each of
the States and all local or other authorities within the territory of
India or under the control of the Government of India. He submitted
that this Court has held in P.D. Shamdasani v. The Central Bank of India
Ltd. (AIR 1952 SC 1952) that the language and structure of Article 19
and its setting in Part III of the Constitution clearly show that the
Article was intended to protect those freedoms against State action only
and hence violation of rights of property by individuals is not within
the purview of Article 19 of the Constitution. He submitted that this
Court has also held in Smt. Vidya Verma v. Dr. Shiv Narain Verma (AIR
1956 SC 108) that the fundamental right of personal liberty under
Article 21 of the Constitution is available against only the State and
not against private individuals. He submitted that, therefore, the word
“State” in Article 21A of the Constitution would not include private
unaided educational institutions or private individuals.
33. Mr. Nariman submitted that before the Constitution (Eighty-Sixth
Amendment) Act, 2002, Article 45 provided that the State shall endeavour
to provide, within a period of ten years from the commencement of the
Constitution, “for” free and compulsory education for all children until
they complete the age of fourteen years. He submitted that what Article
45 therefore meant was that the State alone shall endeavour to provide
“for” free and compulsory education to all children upto the age of
fourteen years. He submitted that by the Constitution (Eighty-Sixth
Amendment) Act, 2002, Article 45 was deleted and in its place Article
21A was inserted in the Constitution. He submitted that in Article 21A
of the Constitution, the word “for” is missing but this does not mean
that the obligation of the State to fund free and compulsory education
to all children upto the age of 14 years could be passed on by the State
to private unaided educational institutions. He submitted that Article
21A, if construed to mean that the State could by law pass on its
obligation under Article 21A to provide free and compulsory education to
all children upto the age of fourteen years to private unaided schools,
Article 21A of the Constitution would abrogate the right of private
educational schools under Article 19(1)(g) of the Constitution as
interpreted by this Court in T.M.A. Pai Foundation (supra).
34. Mr. Nariman submitted that the Objects and Reasons of the Bill which
became the 2009 Act explicitly stated that the 2009 Act is pursuant to
Article 21A of the Constitution but did not make any reference to clause
(5) of Article 15 of the Constitution. He submitted that the validity
of the provisions of the 2009 Act will, therefore, have to be tested
only by reference to Article 21A of the Constitution and not by
reference to clause (5) of Article 15 of the Constitution. According to
both Mr. Rohatgi and Mr. Nariman, Section 12(1(c) of the 2009 Act
insofar as it provides that a private unaided school shall admit in
Class I to the extent of at least 25% of the total strength of the
class, children belonging to weaker sections and disadvantaged group in
the neighborhood and provide free and compulsory education till its
completion is violative of the right of private unaided schools under
Article 19(1)(g) of the Constitution as interpreted by this Court in
T.M.A. Pai Foundation (supra) and P.A. Inamdar (supra). They submitted
that the majority opinion of the three-Judge Bench in Society for
Unaided Private Schools of Rajasthan v. Union of India & Anr. (supra)
is, therefore, not correct.
35. Mr. Ajmal Khan, learned senior counsel appearing for the petitioners
in Writ Petition (C) No.1081 of 2013 (Muslim Minority Schools Managers’
Association) and Mr. T.R. Andhyarujina, learned senior counsel appearing
for intervener in Writ Petition (C) No.60 of 2014 (La Martineire
Schools) that under Article 30(1) of the Constitution all minorities,
whether based on religion or language, shall have the right to establish
and administer educational institutions of their choice. They submitted
that the State while making the law to provide free and compulsory
education to all children of the age of six to fourteen years cannot be
allowed to encroach on this right of the minority institutions under
Article 30(1) of the Constitution. They referred to the decisions of
this Court right from the Kerala Educational Bill case to the T.M.A. Pai
case (supra) to argue that admitting children other than those of the
minority community which establish the school cannot be forced upon the
minority institutions, whether aided or unaided. They submitted that
2009 Act, if made applicable to minority schools, aided or unaided, will
be ultra vires Article 30(1) of the Constitution. They submitted that
the majority judgment of this Court in Society for Unaided Private
Schools of Rajasthan v. Union of India & Anr. (supra), has taken a view
that the 2009 Act will not apply to unaided minority schools but will
apply to aided minority schools. They submitted that accordingly sub-
section (4) of Section 1 of the 2009 Act provides that subject to the
provisions of articles 29 and 30 of the Constitution, the provisions of
the Act shall apply to conferment of rights on children to free and
compulsory education. They submitted that this sub-section (4) of
Section 1 of the 2009 Act should be declared as ultra vires Article
30(1) of the Constitution.
Submissions of learned counsel for the Union of India:
36. In reply, Mr. K.V. Vishwanathan, learned Additional Solicitor General,
submitted that the Statement of Objects and Reasons of the Bill, which
was enacted as the Constitution (Eighty-Sixth Amendment) Act, 2002,
stated that the goal set out in Article 45 of the Constitution of
providing free and compulsory education for children upto the age of 14
years could not be achieved even after 50 years of adoption of the
provision and in order to fulfill this goal, it was felt that a new
provision in the Constitution should be inserted as Article 21A
providing that 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. He submitted that in accordance with
Article 21A of the Constitution, the 2009 Act has been enacted which
provides the manner in which such free and compulsory education for
children upto the age of 14 years shall be provided by the State and it
provides in Section 12(1)(c) that private unaided schools shall admit in
Class I from amongst weaker sections of society and from disadvantaged
groups at least twenty-five per cent of the strength of the class and
provide free and compulsory education.
37. Mr. Vishwanathan submitted that private educational institutions
cannot have any grievance in this regard because they are performing a
function akin to the function of the State. He submitted that applying
the functional test private educational institutions are also State
within the meaning of Article 12 of the Constitution and, therefore, the
argument of Mr. Nariman that the obligation of providing free and
compulsory education to all children of the age of six to fourteen years
cannot be passed on by the State to private educational institutions has
no substance. Mr. Vishwanathan submitted that in paragraph 53 of the
judgment in T.M.A. Pai Foundation (supra) this Court has held that while
private unaided educational institutions have the right to admit
students of their choice, admission of a small percentage of students
belonging to weaker sections of the society by granting them freeships
or scholarships, if not granted by the Government should also be done.
He submitted that in paragraph 68 of T.M.A. Pai Foundation (supra), this
Court has also held that a small percentage of seats may also be filled
up to take care of poorer and backward sections of the society. He
submitted that the 2009 Act, therefore, has provided in Section 12(1)(c)
that an unaided private school 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
and this provision of the 2009 Act, therefore, is not ultra vires
Article 19(1)(g) of the Constitution.
38. Regarding minority institutions, Mr. Vishwanathan submitted that under
Article 3)(1) of the Constitution they have equal status and accordingly
this Court has held in Society for Unaided Private Schools of Rajasthan
v. Union of India & Anr. (supra) the 2009 Act will not apply to unaided
minority schools but will apply to aided minority schools. He submitted
that accordingly the 2009 Act was amended by the Right of Children to
Free And Compulsory Education (Amendment) Act, 2012, so as to provide in
sub-section (4) of Section 1 of the 2009 Act that subject to the
provisions of Articles 29 and 30 of the Constitution, the provisions of
the 2009 Act shall apply to conferment of rights on children to free and
compulsory education.
Opinion of the Court on Article 21A of the Constitution and on the validity
of 2009 Act:
39. We have considered the submissions of learned counsel for the parties
and we find that this is what it is stated in the Statement of Objects and
Reasons of the Constitution (Eighty-Third Amendment) Bill, 1997, which
ultimately was enacted as the Constitution (Eighty-Sixth Amendment) Act,
2002:
“The Constitution of India in a Directive Principle contained in
article 45, has 'made a provision for free and compulsory
education for all children up to the age of fourteen years
within ten years of promulgation of the Constitution. We could
not achieve this goal even after 50 years of adoption of this
provision. The task of providing education to all children in
this age group gained momentum after the National Policy of
Education (NPE) was announced in 1986. The Government of India,
in partnership with the State Governments, has made strenuous
efforts to fulfil this mandate and, though significant
improvements were seen in various educational indicators, the
ultimate goal of providing universal and quality education still
remains unfulfilled. In order to fulfil this goal, it is felt
that an explicit provision should be made in the Part relating
to Fundamental Rights of the Constitution.
2. With a view to making right to free and compulsory education
a fundamental right, the Constitution (Eighty-third Amendment)
Bill, 1997 was introduced in Parliament to insert a new article,
namely, article 21 A conferring on all children in the age group
of 6 to 14 years the right to free and compulsory education. The
said Bill was scrutinised by the Parliamentary Standing
Committee on Human Resource Development and the subject was also
dealt with in its 165th 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, 200l 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 5lA 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.
MURLI MANOHAR JOSHI.
NEW DELHI;
The 16th November, 2001.”
It will, thus, be clear from the Statement of Objects and Reasons extracted
above that although the Directive Principle in Article 45 contemplated that
the State will provide free and compulsory education for all children up to
the age of fourteen years within ten years of promulgation of the
Constitution, this goal could not be achieved even after 50 years and,
therefore, a constitutional amendment was proposed to insert Article 21A in
Part III of the Constitution. Bearing in mind this object of the
Constitution (Eight-Sixth Amendment) Act, 2002 inserting Article 21A of the
Constitution, we may now proceed to consider the submissions of learned
counsel for the parties.
40. Article 21A of the Constitution, as we have noticed, states that 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. The word ‘State’ in Article 21A can only mean the ‘State’ which
can make the law. Hence, Mr. Rohatgi and Mr. Nariman are right in their
submission that the constitutional obligation under Article 21A of the
Constitution is on the State to provide free and compulsory education to
all children of the age of 6 to 14 years and not on private unaided
educational institutions. Article 21A, however, states that the State
shall by law determine the “manner” in which it will discharge its
constitutional obligation under Article 21A. Thus, a new power was vested
in the State to enable the State to discharge this constitutional
obligation by making a law. However, Article 21A has to be harmoniously
construed with Article 19(1)(g) and Article 30(1) of the Constitution. As
has been held by this Court in Venkataramana Devaru v. State of Mysore (AIR
1958 SC 255):
“The rule of construction is well settled that when there are in
an enactment two provisions which cannot be reconciled with each
other, they should be so interpreted that, if possible, effect
could be given to both. This is what is known as the rule of
harmonious construction.”
We do not find anything in Article 21A which conflicts with either the
right of private unaided schools under Article 19(1)(g) or the right of
minority schools under Article 30(1) of the Constitution, but the law made
under Article 21A may affect these rights under Articles 19(1)(g) and
30(1). The law made by the State to provide free and compulsory education
to the children of the age of 6 to 14 years should not, therefore, be such
as to abrogate the right of unaided private educational schools under
Article 19(1)(g) of the Constitution or the right of the minority schools,
aided or unaided, under Article 30(1) of the Constitution.
41. While discussing the validity of clause (5) of Article 15 of the
Constitution, we have already noticed that in paragraphs 53 and 68 of the
judgment in T.M.A. Pai Foundation (supra), this Court has held that
admission of a small percentage of students belonging to weaker sections of
the society by granting them freeships or scholarships, if not granted by
the Government and the admission to some of the seats to take care of
poorer and backward sections of the society may be permissible and would
not be inconsistent with the rights under Articles 19(1)(g) of the
Constitution. In P.A. Inamdar (supra), however, this Court explained that
there was nothing in this Court’s judgment in T.M.A. Pai Foundation (supra)
to say that such admission of students from amongst weaker, backward and
poorer sections of the society in private unaided institutions can be done
by the State because the power vested on the State in clause (6) of Article
19 of the Constitution is to make only regulatory provisions and this power
could not be used by the State to force admissions from amongst weaker,
backward and poorer sections of the society on private unaided educational
institutions. While discussing the validity of clause (5) of Article 15,
we have also held that there is an element of voluntariness of all the
freedoms under Article 19(1) of the Constitution, but the voluntariness in
these freedoms can be subjected to law made under the powers available to
the State under clause (2) to (6) of Article 19 of the Constitution.
42. In our considered opinion, therefore, by the Constitution (Eighty-
Sixth Amendment) Act, a new power was made available to the State under
Article 21A of the Constitution to make a law determining the manner in
which it will provide free and compulsory education to the children of the
age of six to fourteen years as this goal contemplated in the Directive
Principles in Article 45 before this constitutional amendment could not be
achieved for fifty years. This additional power vested by the Constitution
(Eighty-Sixth Amendment) Act, 2002 in the State is independent and
different from the power of the State under clause (6) of Article 19 of the
Constitution and has affected the voluntariness of the right under Article
19(1)(g) of the Constitution. By exercising this additional power, the
State can by law impose admissions on private unaided schools and so long
as the law made by the State in exercise of this power under Article 21A of
the Constitution is for the purpose of providing free and compulsory
education to the children of the age of 6 to 14 years and so long as such
law forces admission of children of poorer, weaker and backward sections of
the society to a small percentage of the seats in private educational
institutions to achieve the constitutional goals of equality of opportunity
and social justice set out in the Preamble of the Constitution, such a law
would not be destructive of the right of the private unaided educational
institutions under Article 19(1)(g) of the Constitution.
43. To give an idea of the goals Parliament intended to achieve by
enacting the 2009 Act, we extract paragraphs 4, 5 and 6 of the Statement of
Objects and Reasons of the Bill which was enacted as the 2009 Act
hereinbelow:
“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 Governments, but also of schools
which are not dependent on Government funds.
5. It is, therefore, expedient and necessary to enact a suitable
legislation as envisaged in Article 21A of the Constitution.
6. The Bill seeks to achieve this objective.”
It will be clear from the aforesaid extract that the 2009 Act intended to
achieve the constitutional goal of equality of opportunity through
inclusive elementary education to all and also intended that private
schools which did not receive government aid should also take the
responsibility of providing free and compulsory education of satisfactory
quality to children from disadvantaged and weaker sections.
44. When we examine the 2009 Act, we find that under Section 12(1)(c)
read with Section 2(n)(iv) of the Act, an unaided school not receiving any
kind of aid or grants to meet its expenses from the appropriate Government
or the local authority is required to 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.
We further find that under Section 12(2) of the 2009 Act such a school
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. Thus,
ultimately it is the State which is funding the expenses of free and
compulsory education of the children belonging to weaker sections and
several groups in the neighbourhood, which are admitted to a private
unaided school. These provisions of the 2009 Act, in our view, are for the
purpose of providing free and compulsory education to children between the
age group of 6 to 14 years and are consistent with the right under Article
19(1)(g) of the Constitution, as interpreted by this Court in T.M.A. Pai
Foundation (supra) and are meant to achieve the constitutional goals of
equality of opportunity in elementary education to children of weaker
sections and disadvantaged groups in our society. We, therefore, do not
find any merit in the submissions made on behalf of the non-minority
private schools that Article 21A of the Constitution and the 2009 Act
violate their right under Article 19(1)(g) of the Constitution.
45. Under Article 30(1) of the Constitution, all minorities, whether
based on religion or language, shall have the right to establish and
administer educational institutions of their choice. Religious and
linguistic minorities, therefore, have a special constitutional right to
establish and administer educational schools of their choice and this Court
has repeatedly held that the State has no power to interfere with the
administration of minority institutions and can make only regulatory
measures and has no power to force admission of students from amongst non-
minority communities, particularly in minority schools, so as to affect the
minority character of the institutions. Moreover, in Kesavananda Bharati
Sripadagalvaru v. State of Kerala & Anr. (supra) Sikri, CJ., has even gone
to the extent of saying that Parliament cannot in exercise of its amending
power abrogate the rights of minorities. To quote the observations of
Sikri, CJ. in Kesavananda Bharati Sripadagalvaru v. State of Kerala & Anr.
(supra):
“178. The above brief summary of the work of the Advisory
Committee and the Minorities Sub-committee shows that no one ever
contemplated that fundamental rights appertaining to the
minorities would be liable to be abrogated by an amendment of the
Constitution. The same is true about the proceedings in the
Constituent Assembly. There is no hint anywhere that abrogation of
minorities’ rights was ever in the contemplation of the important
members of the Constituent Assembly. It seems to me that in the
context of the British plan, the setting up of Minorities Sub-
committee, the Advisory Committee and the proceedings of these
Committees, as well as the proceedings in the Constituent Assembly
mentioned above, it is impossible to read the expression
“Amendment of the Constitution” as empowering Parliament to
abrogate the rights of minorities.”
Thus, the power under Article 21A of the Constitution vesting in the State
cannot extend to making any law which will abrogate the right of the
minorities to establish and administer schools of their choice.
46. When we look at the 2009 Act, we find that Section 12(1)(b) read with
Section 2(n) (iii) provides that an aided school receiving aid and grants,
whole or part, of its expenses from the appropriate Government or the local
authority has to provide free and compulsory 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. Thus, a minority aided school is put under a legal
obligation to provide free and compulsory elementary education to children
who need not be children of members of the minority community which has
established the school. We also find that under Section 12(1)(c) read
with Section 2(n)(iv), an unaided school has to admit into twenty-five per
cent of the strength of class I children belonging to weaker sections and
disadvantaged groups in the neighbourhood. Hence, unaided minority schools
will have a legal obligation to admit children belonging to weaker sections
and disadvantaged groups in the neighbourhood who need not be children of
the members of the minority community which has established the school.
While discussing the validity of clause (5) of Article 15 of the
Constitution, we have held that members of communities other than the
minority community which has established the school cannot be forced upon a
minority institution because that may destroy the minority character of the
school. In our view, if the 2009 Act is made applicable to minority
schools, aided or unaided, the right of the minorities under Article 30(1)
of the Constitution will be abrogated. Therefore, the 2009 Act insofar it
is made applicable to minority schools referred in clause (1) of Article 30
of the Constitution is ultra vires the Constitution. We are thus of the
view that the majority judgment of this Court in Society for Unaided
Private Schools of Rajasthan v. Union of India & Anr. (supra) insofar as it
holds that the 2009 Act is applicable to aided minority schools is not
correct.
47. In the result, we hold that the Constitution (Ninety-third Amendment)
Act, 2005 inserting clause (5) of Article 15 of the Constitution and the
Constitution (Eighty-Sixth Amendment) Act, 2002 inserting Article 21A of
the Constitution do not alter the basic structure or framework of the
Constitution and are constitutionally valid. We also hold that the 2009
Act is not ultra vires Article 19(1)(g) of the Constitution. We, however,
hold that the 2009 Act insofar as it applies to minority schools, aided or
unaided, covered under clause (1) of Article 30 of the Constitution is
ultra vires the Constitution. Accordingly, Writ Petition (C) No.1081 of
2013 filed on behalf of Muslim Minority Schools Managers’ Association is
allowed and Writ Petition (C) Nos.416 of 2012, 152 of 2013, 60 of 2014, 95
of 2014, 106 of 2014, 128 of 2014, 144 of 2014, 145 of 2014, 160 of 2014
and 136 of 2014 filed on behalf of non-minority private unaided educational
institutions are dismissed. All I.As. stand disposed of. The parties,
however, shall bear their own costs.
.....……………..……………………CJI.
(R.M. Lodha)
.....……………..……………………….J.
(A. K. Patnaik)
.....……………..……………………….J.
(Sudhansu Jyoti Mukhopadhaya)
.....……………..……………………….J.
(Dipak Misra)
…....…………..………………………..J.
(Fakkir Mohamed Ibrahim Kalifulla)
New Delhi,
May 06, 2014.
institutions are dismissed. =
we are called upon to decide on
the validity of clause (5) of Article 15 of the Constitution inserted by
the Constitution (Ninety-third Amendment) Act, 2005 with effect from
20.01.2006 and on the validity of Article 21A of the Constitution inserted
by the Constitution (Eighty-Sixth Amendment) Act, 2002 with effect from
01.04.2010.
2. Clause (5) of Article 15 of the Constitution reads as follows:
“Nothing in this article or in sub-clause (g) of clause (1) of
article 19 shall prevent the State from making any special
provision, by law, for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled
Castes or the Scheduled Tribes in so far as such special
provisions relate to their admission to educational institutions
including private educational institutions, whether aided or
unaided by the State, other than the minority educational
institutions referred to in clause (1) of article 30.” =
Section 2(n) (iii) provides that an aided school receiving aid and grants,
whole or part, of its expenses from the appropriate Government or the local
authority has to provide free and compulsory 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. Thus, a minority aided school is put under a legal
obligation to provide free and compulsory elementary education to children
who need not be children of members of the minority community which has
established the school. We also find that under Section 12(1)(c) read
with Section 2(n)(iv), an unaided school has to admit into twenty-five per
cent of the strength of class I children belonging to weaker sections and
disadvantaged groups in the neighbourhood. Hence, unaided minority schools
will have a legal obligation to admit children belonging to weaker sections
and disadvantaged groups in the neighbourhood who need not be children of
the members of the minority community which has established the school.
While discussing the validity of clause (5) of Article 15 of the
Constitution, we have held that members of communities other than the
minority community which has established the school cannot be forced upon a
minority institution because that may destroy the minority character of the
school. In our view, if the 2009 Act is made applicable to minority
schools, aided or unaided, the right of the minorities under Article 30(1)
of the Constitution will be abrogated. Therefore, the 2009 Act insofar it
is made applicable to minority schools referred in clause (1) of Article 30
of the Constitution is ultra vires the Constitution. We are thus of the
view that the majority judgment of this Court in Society for Unaided
Private Schools of Rajasthan v. Union of India & Anr. (supra) insofar as it
holds that the 2009 Act is applicable to aided minority schools is not
correct.
47. In the result, we hold that the Constitution (Ninety-third Amendment)
Act, 2005 inserting clause (5) of Article 15 of the Constitution and the
Constitution (Eighty-Sixth Amendment) Act, 2002 inserting Article 21A of
the Constitution do not alter the basic structure or framework of the
Constitution and are constitutionally valid. We also hold that the 2009
Act is not ultra vires Article 19(1)(g) of the Constitution. We, however,
hold that the 2009 Act insofar as it applies to minority schools, aided or
unaided, covered under clause (1) of Article 30 of the Constitution is
ultra vires the Constitution. Accordingly, Writ Petition (C) No.1081 of
2013 filed on behalf of Muslim Minority Schools Managers’ Association is
allowed and Writ Petition (C) Nos.416 of 2012, 152 of 2013, 60 of 2014, 95
of 2014, 106 of 2014, 128 of 2014, 144 of 2014, 145 of 2014, 160 of 2014
and 136 of 2014 filed on behalf of non-minority private unaided educational
institutions are dismissed. All I.As. stand disposed of. The parties,
however, shall bear their own costs.
2014 ( May.Part) http://judis.nic.in/supremecourt/filename=41505
R.M. LODHA, A.K. PATNAIK, SUDHANSU JYOTI MUKHOPADHAYA, DIPAK MISRA, FAKKIR MOHAMED IBRAHIM KALIFULLA
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) No. 416 OF 2012
Pramati Educational & Cultural
Trust ® & Ors. …
Petitioners
Versus
Union of India & Ors. … Respondents
WITH
WRIT PETITION (C) No. 152 OF 2013,
WRIT PETITION (C) No.1081 OF 2013,
WRIT PETITION (C) No. 60 OF 2014,
WRIT PETITION (C) No. 95 OF 2014,
WRIT PETITION (C) No.106 OF 2014,
WRIT PETITION (C) No.128 OF 2014,
WRIT PETITION (C) No.144 OF 2014,
WRIT PETITION (C) No.145 OF 2014,
WRIT PETITION (C) No.160 OF 2014,
AND
WRIT PETITION (C) No.136 OF 2014
J U D G M E N T
A. K. PATNAIK, J.
This is a reference made by a three-Judge Bench of this Court by
order dated 06.09.2010 in Society for Unaided Private Schools of Rajasthan
v. Union of India & Anr. [(2012) 6 SCC 102] to a Constitution Bench. As
per the aforesaid order dated 06.09.2010, we are called upon to decide on
the validity of clause (5) of Article 15 of the Constitution inserted by
the Constitution (Ninety-third Amendment) Act, 2005 with effect from
20.01.2006 and on the validity of Article 21A of the Constitution inserted
by the Constitution (Eighty-Sixth Amendment) Act, 2002 with effect from
01.04.2010.
2. Clause (5) of Article 15 of the Constitution reads as follows:
“Nothing in this article or in sub-clause (g) of clause (1) of
article 19 shall prevent the State from making any special
provision, by law, for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled
Castes or the Scheduled Tribes in so far as such special
provisions relate to their admission to educational institutions
including private educational institutions, whether aided or
unaided by the State, other than the minority educational
institutions referred to in clause (1) of article 30.”
Clause (5) of Article 15 of the Constitution, therefore, enables the State
to make a special provision, by law, for the advancement of socially and
educationally backward classes of citizens or for the Scheduled Castes and
Scheduled Tribes insofar as such special provisions relate to their
admission to educational institutions including private educational
institutions, whether aided or unaided by the State, other than the
minority educational institutions referred to in clause (1) of Article 30
of the Constitution. The constitutional validity of clause (5) of Article
15 of the Constitution insofar as it enables the State to make special
provisions relating to admission to educational institutions of the State
and educational institutions aided by the State was considered by a
Constitution Bench of this Court in Ashoka Kumar Thakur v. Union of India &
Ors. [(2008) 6 SCC 1] and the Constitution Bench held in the aforesaid case
that clause (5) of Article 15 is valid and does not violate the “basic
structure” of the Constitution so far as it relates to the State-maintained
institutions and aided educational institutions. In the aforesaid case,
however, the Constitution Bench left open the question whether clause (5)
of Article 15 was constitutionally valid or not so far as “private unaided”
educational institutions are concerned, as such “private unaided”
educational institutions were not before the Court. This batch of writ
petitions has been filed by private unaided educational institutions and we
are called upon to decide whether clause (5) of Article 15 of the
Constitution so far as it relates to “private unaided” educational
institutions is valid and does not violate the basic structure of the
Constitution.
3. Article 21A of the Constitution reads as follows:
“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.".
Thus, Article 21A of the Constitution, provides that 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.
Parliament has made the law contemplated by Article 21A by enacting the
Right of Children to Free and Compulsory Education Act, 2009 (for short
‘the 2009 Act’). The constitutional validity of the 2009 Act was
considered by a three-Judge Bench of the Court in Society for Unaided
Private Schools of Rajasthan v. Union of India & Anr. [(2012) 6 SCC 1].
Two of the three Judges have held the 2009 Act to be constitutionally
valid, but they have also held that the 2009 Act is not applicable to
unaided minority schools protected under Article 30(1) of the Constitution.
In the aforesaid case, however, the three-Judge Bench did not go into the
question whether clause (5) of Article 15 or Article 21A of the
Constitution is valid and does not violate the basic structure of the
Constitution. In this batch of the writ petitions filed by private unaided
institutions, the constitutional validity of clause (5) of Article 15 and
of Article 21A has to be decided by this Constitution Bench.
4. Both clause (5) of Article 15 and Article 21A were inserted in the
Constitution by Parliament by exercise of its power of amendment under
Article 368 of the Constitution. A Bench of thirteen-Judges of this Court
in His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala &
Anr. [(1973) 4 SCC 225] considered the scope of the amending power of
Parliament under Article 368 of the Constitution and the majority of the
Judges held that Article 368 does not enable Parliament to alter the basic
structure or framework of the Constitution. Hence, we are called upon to
decide in this reference the following two substantial questions of law:
i) Whether by inserting clause (5) in Article 15 of the Constitution
by the Constitution (Ninety-third Amendment) Act, 2005, Parliament
has altered the basic structure or framework of the Constitution.
ii) Whether by inserting Article 21A of the Constitution by the
Constitution (Eighty-Sixth Amendment) Act, 2002, Parliament has
altered the basic structure or framework of the Constitution.
Validity of clause (5) of Article 15 of the Constitution
Contentions of learned counsel for the petitioners:
5. Mr. Mukul Rohatgi, learned senior counsel for the petitioners in Writ
Petition (C) No.416 of 2012, submitted that in T.M.A. Pai Foundation & Ors
v. State of Karnataka & Ors. [(2002) 8 SCC 481] the majority of the Judges
of the eleven-Judge Bench speaking through Kirpal C.J. have held that the
fundamental right to carry on any occupation under Article 19(1)(g) of the
Constitution includes the right to run and administer a private unaided
educational institution. He submitted that in Minerva Mills Ltd. & Ors. v.
Union of India & Ors. [(1980) 3 SCC 625] Chandrachud, CJ., writing the
judgment for the majority of the Judges of the Constitution Bench, has held
that Articles 14, 19 and 21 of the Constitution constitute the golden
triangle which affords to the people of this country an assurance that the
promise held forth by the Preamble will be performed by ushering an
egalitarian era through the discipline of fundamental rights, that is,
without emasculation of the rights to liberty and equality which alone can
help preserve the dignity of the individual. He submitted that in the
aforesaid case, the Constitution Bench held that Section 4 of the
Constitution (Forty-second Amendment) Act is beyond the amending power of
Parliament and is void since it damages the basic or essential features of
the Constitution and destroys its basic structure by a total exclusion of
challenge to any law on the ground that it is inconsistent with, or takes
away or abridges any of the rights conferred by Article 14 or Article 19 of
the Constitution. Mr. Rohatgi submitted that Article 19(1)(g) of the
Constitution is, therefore, a basic feature of the Constitution and this
basic feature is destroyed by providing in clause (5) of Article 15 of the
Constitution that nothing in Article 19(1)(g) of the Constitution shall
prevent the State from making any special provision, by law, for the
advancement of any socially and educationally backward classes of citizens
or for the Scheduled Castes or the Scheduled Tribes in so far as such
special provisions relate to their admission to educational institutions
including private educational institutions. Mr. Rohatgi explained that a
nine-Judge Bench of this Court in I.R. Coelho (Dead) by LRs. v. State of
T.N. [(2007) 2 SCC 1] relying on the aforesaid judgment in Minerva Mills
case (supra) has similarly held that Articles 14, 19 and 21 of the
Constitution stand on altogether a different footing and after the
evolution of the basic structure doctrine in Kesavananda Bharati (supra),
it will not be open to immunize legislation made by Parliament from
judicial scrutiny on the ground that these fundamental rights are not part
of the basic structure of the Constitution. He submitted that in the
aforesaid judgment, this Court, therefore, has also held that the existence
of the power of Parliament to amend the Constitution at will, with
requisite voting strength, so as to make any kind of laws that excludes
Part III including the power of judicial review under Article 32 is
incompatible with the basic structure of the Constitution and, therefore,
such an exercise, if challenged, has to be tested on the touchstone of
basic structure as reflected in Article 21 read with Article 14 and
Article 19 of the Constitution. Mr. Rohatgi submitted that Bhandari, J.
has taken the view in Ashoka Kumar Thakur v. Union of India (supra) that
the imposition of reservation on unaided institutions by the Ninety-third
Amendment has abrogated Article 19(1)(g), a basic feature of the
Constitution and, therefore, the Ninety-third Amendment of the Constitution
is ultra vires the Constitution.
6. Mr. R.F. Nariman, learned senior counsel for the petitioners in Writ
Petition (C ) No.128 of 2014, submitted that clause (5) of Article 15 of
the Constitution is violative of Article 14 of the Constitution inasmuch as
it treats unequals as equals. He argued that clause (5) of Article 15 of
the Constitution fails to make a distinction between aided and unaided
educational institutions and treats both aided and unaided alike in the
matter of making special provisions for advancement of socially and
educationally backward classes of citizens or for the Scheduled Castes and
the Scheduled Tribes insofar as such special provisions relate to their
admission to such educational institutions. He referred to paragraph 55
of the majority judgment of this Court in T.M.A. Pai Foundation (supra) in
which the difference in the administration of private unaided institutions
and government-aided institutions has been noticed. He argued that clause
(5) of Article 15 of the Constitution as its very language indicates does
not apply to minority educational institutions referred to in clause (1) of
Article 30 of the Constitution. He submitted that Article 14 is, thus,
violated because aided minority institutions and unaided minority
institutions cannot be treated alike. Clause (5) of Article 15 of the
Constitution, therefore, is discriminatory and violative of the equality
clause in Article 14 of the Constitution, which is a basic feature of the
Constitution.
7. Mr. Nariman next submitted that clause (5) of Article 15 of the
Constitution is a clear violation of Article 19(1)(g) of the Constitution,
inasmuch as it compels private educational institutions to give up a share
of the available seats to the candidates chosen by the State and such
appropriation of seats would not be a regulatory measure and not a
reasonable restriction on the right under Article 19(1)(g) of the
Constitution within the meaning of Article 19(6) of the Constitution. He
referred to the observations of this Court in P.A. Inamdar & Ors. v. State
of Maharashtra & Ors. [(2005) 6 SCC 537] in paragraph 125 at page 601 that
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
and that unaided institutions, as they are not deriving any aid from State
funds, should have their own admissions following a fair, transparent and
non-exploitative method based on merit. He vehemently submitted that when
reservation in favour of the Scheduled Castes and the Scheduled Tribes and
other socially and educationally backward classes of citizens is made in
admission to private educational institutions and unaided private
educational institutions by the State, such private educational
institutions will no longer be institutions of excellence. He submitted
that in T.M.A. Pai Foundation (supra), the majority of the Judges have held
that private unaided educational institutions impart education and that the
State cannot take away the choice in matters of selection of students for
admission and clause (5) of Article 15 of the Constitution insofar as it
enables the State to take away this choice for admission of students is
violative of freedom of private educational institutions under Article
19(1)(g) of the Constitution.
8. Mr. Nariman next submitted that in Mohini Jain (Miss) v. State of
Karnataka & Ors. [(1992) 3 SCC 666], this Court has held that the “right to
life” is a compendious expression with all those rights which the Courts
must enforce because they are basic to the dignified enjoyment of life and
that the dignity of an individual cannot be assured unless it is
accompanied by the right to education. He submitted that under Article
51A(j) of the Constitution, it is a duty of every citizen of India to
strive towards excellence in all spheres of individual and collective
activity so that the nation constantly rises to higher levels of endeavour
and achievement. He argued that every citizen can strive towards
excellence through education by studying in educational institutions of
excellence. He submitted that clause (5) of Article 15 of the Constitution
in so far as it enables the State to make special provisions relating to
admission to private educational institutions for socially and
educationally backward classes of citizens or for the Scheduled Castes and
the Scheduled Tribes will affect also this right under Article 21 read with
Article 51A(j) of the Constitution.
9. Mr. Nariman submitted that clause (5) of Article 15 of the
Constitution has been brought in by an amendment to achieve the Directive
Principles of State Policy in Part IV of the Constitution as well as the
goals of social and economic justice set out in the Preamble of the
Constitution, but the majority of the Judges speaking through Chandrachud,
CJ., have held in Minerva Mills case (supra) that the goals set out in Part
IV of the Constitution have to be achieved without the abrogation of the
means provided for by Part III of the Constitution. He submitted that in
the aforesaid majority judgment in Minerva Mills case (supra) authored by
Chandrachud, CJ., it has also been observed that Parts III and IV together
constitute the core of our Constitution and anything that destroys the
balance between the two parts will ipso facto destroy an essential element
of the basic structure of our Constitution. He submitted that clause (5)
of Article 15 of the Constitution inasmuch as it is violative of Articles
14, 19(1)(g) and 21 of the Constitution destroys the basic feature of the
Constitution and is, therefore, beyond the amending power of Parliament.
10. Dr. Rajeev Dhavan, learned senior counsel appearing for the
petitioners in W.P.(C) No.152 of 2013, submitted that two tests have to be
applied for determining whether a constitutional amendment is violative of
basic structure in so far as it affects fundamental rights, and these two
tests are the ‘identity test’ and the ‘width test’. He submitted that the
Court has to see whether the identity of a fundamental right as judicially
determined is not destroyed by the width of the power introduced by the
amendment of the Constitution and if the conclusion is that the width of
the power of the State vested by the constitutional amendment is such as to
destroy the essence of the right, the amendment can be held to destroy the
basic structure of the Constitution. In support of this proposition he
relied on the judgment of this Court in M. Nagaraj and Others v. Union of
India and Others [(2006) 8 SCC 212].
11. Mr. Dhavan submitted that in T.M.A. Pai Foundation case (supra) the
majority judgment has determined the content of the right of a private
educational institution under Article 19(1)(g) of the Constitution and the
content of this right comprises the (a) charity, (b) autonomy, (c)
voluntariness, (d) non-sharing of seats between the State Governments and
the private institutions, (e) co-optation and (f) reasonableness
principles. He submitted that clause (5) of Article 15 of the Constitution
inserted by Parliament by way of amendment, however, provides that nothing
in Article 19(1)(g) of the Constitution shall prevent the State from making
any special provision, by law, for admission to private educational
institutions of persons belonging to socially and educationally backward
classes of citizens or for the Scheduled Castes or the Scheduled Tribes.
He vehemently argued that by clause (5) of Article 15 of the Constitution
the power that is vested in the State is such that it can destroy the
essence of the right of private educational institution under Article
19(1)(g) of the Constitution as determined by this Court in T.M.A. Pai
Foundation case (supra) and therefore the constitutional amendment
inserting clause (5) in Article 15 of the Constitution is destructive of
the basic structure of the Constitution.
12. Mr. Anil B. Divan, learned senior counsel appearing for the
petitioners in W.P.(C) No.60 of 2014 and W.P.(C) No.160 of 2014 submitted
that in the case of Edward A. Boyd and George H. Boyd v. Unites States
(1884) 116 U.S. 616 Bradley J., has observed that it will be the duty of
the courts to be watchful for the constitutional rights of the citizens and
against any stealthy encroachments into these rights. He submitted that in
Dwarkadas Shrinivas v. The Sholapur Spining & Weaving Co. Ltd. and Others
(AIR 1954 SC 119) Mahajan J., has held that in dealing with constitutional
matters it is always well to bear in mind these observations of Bradley J.
He submitted that while deciding on validity of clause (5) of Article 15 of
the Constitution, we should bear in mind the aforesaid observations of
Bradley J. He submitted that Chandrachud, CJ. in Minerva Mills Ltd. & Ors.
v. Union of India & Ors. (supra) has referred to the observations of
Brandies J. that the need to protect liberty is the greatest when the
government purposes are beneficient particularly when political pressures
exercised by numerically large groups can tear the country asunder by
leaving it to the legislature to pick and choose favoured areas and
favourite classes for preferential treatment. He submitted that clause (5)
of Article 15 of the Constitution is an amendment made by Parliament to
appease socially and educationally backward classes of citizens and the
Scheduled Castes or the Scheduled Tribes for political gains and it is for
the Court to protect the fundamental right of private educational
institutions under Article 19(1)(g) of the Constitution as interpreted by
this Court in T.M.A. Pai Foundation.
13. Mr. Divan next submitted that clause (5) of Article 15 of the
Constitution as its very language indicates, applies to non-minority
private educational institutions but does not apply to minority educational
institutions referred to in clause (1) of Article 30 of the Constitution.
He argued that there is absolutely no rationale for exempting the minority
educational institutions from the purview of clause (5) of Article 15 of
the Constitution and clause (5) of Article 15 of the Constitution really
gives a favourable treatment to the minority educational institutions and
is violative of the equality clause in Article 14 of the Constitution. He
relied on the decision of this Court in The Ahmedabad St. Xavier’s College
Society and Another v. State of Gujarat and Another [(1974) 1 SCC 717] to
submit that the whole object of conferring the right on the minority under
Article 30 of the Constitution is to ensure that there will be an equality
between the majority and the minority. He submitted that H.R. Khanna J. in
his judgment in the aforesaid case has clarified that the idea of giving
some special rights to the minorities is not to have a kind of a privileged
or pampered section of the population but to give to the minorities a sense
of security and a feeling of confidence. He submitted that Kirpal C.J.
speaking for majority in T.M.A. Pai Foundation (supra) has similarly held
that the essence of Article 30(1) of the Constitution is to ensure equal
treatment between the majority and the minority institutions that laws of
the land must apply equally to majority institutions as well as to minority
institutions and minority institutions must be allowed to do what the non-
minority institutions are permitted to do. Mr. Divan submitted that clause
(5) of Article 15 of the Constitution insofar as it excludes minority
institutions referred to in Article 30(1) of the Constitution is also
violative of secularism which is a basic feature of the Constitution. He
referred to the judgment in Dr. M. Ismail Faruqui and Others v. Union of
India and Others [(1994) 6 SCC 360] in which this Court has held that the
concept of secularism is one facet of right to equality woven as the
central golden thread in the fabric depicting the pattern of the scheme in
our Constitution.
Contentions of learned counsel for the Union of India:
14. Mr. Mohan Parasaran, learned Solicitor General, submitted that this
Court has held in Ashoka Kumar Thakur v. Union of India (supra) that
clause (5) of Article 15 of the Constitution is only an enabling
provision empowering the State to make a special provision, by law,
for the advancement of socially and educationally backward classes of
citizens or for the Scheduled Castes and the Scheduled Tribes insofar
as such special provisions relate to their admission to educational
institutions including private educational institutions. He submitted
that it will be clear from paragraphs 53 and 68 of the judgment of the
eleven Judge Bench of this Court in T.M.A. Pai Foundation (supra) that
reserving a small percentage of seats in private educational
institutions, aided or unaided, for weaker, poorer and backward
sections of society did not in any way affect the right of private
educational institutions under Article 19(1)(g) of the Constitution.
He argued that after the judgment of this Court in T.M.A. Pai
Foundation (supra) a five-Judge Bench of this Court in Islamic Academy
of Education & Anr. v. State of Karnataka & Ors. [(2003) 6 SCC 697 was
of the view that as per the judgment in T.M.A. Pai Foundation (supra)
in case of non-minority professional colleges a percentage of seats
could be reserved by the Government for poorer and backward sections.
He submitted that this view taken by the five-Judge Bench of this
Court in Islamic Academy of Education & Anr. v. State of Karnataka &
Ors. (supra), however, did not find favour with a seven-Judge Bench of
this Court in P.A. Inamdar (supra) which held that there is nothing in
the judgment of this Court in T.M.A. Pai Foundation (supra) allowing
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
or for enforcing the reservation policy of the State. He submitted
that, therefore, Parliament introduced clause (5) in Article 15 of the
Constitution by the Constitution (Ninety-Third Amendment) Act, 2005
providing that the State may make a special provision, by law, for the
advancement of socially and educationally backward classes of citizens
or for the Scheduled Castes and the Scheduled Tribes insofar as such
special provisions relate to their admission to educational
institutions including private educational institutions, whether aided
or unaided by the State. He vehemently argued that clause (5) of
Article 15 introduced by the constitutional amendment is consistent
with the right to establish and administer the private educational
institutions under Article 19(1)(g) of the Constitution as interpreted
by T.M.A. Pai Foundation (supra) and, therefore, does not violate the
right under Article 19(1)(g) of the Constitution.
15. Mr. Parasaran next submitted that minority institutions referred to in
Article 30 of the Constitution have been excluded from the purview of
clause (5) of Article 15 of the Constitution because the Constitution
has given a special status to minority institutions. He submitted
that in the case of Ashoka Kumar Thakur v. Union of India (supra),
this Court has held that exclusion of minority educational
institutions from clause (5) of Article 15 of the Constitution is not
violative of Article 14 of the Constitution as the minority
educational institutions, by themselves, are a separate class and
their rights are protected by other constitutional provisions. He
submitted that the argument that clause (5) of Article 15 of the
Constitution is violative of equality clause in Article 14 of the
Constitution is therefore misconceived.
Opinion of the Court on the validity of clause (5) of Article 15 of the
Constitution:
16. We have considered the submissions of learned counsel for the
parties and we find that the object of clause (5) of Article 15 is to
enable the State to give equal opportunity to socially and educationally
backward classes of citizens or to the Scheduled Castes and the Scheduled
Tribes to study in all educational institutions other than minority
educational institutions referred in clause (1) of Article 30 of the
Constitution. This will be clear from the Statement of Objects and Reasons
of the Bill, which after enactment became the Constitution (Ninety-Third
Amendment) Act, 2005 extracted hereinbelow:
“Greater access to higher education including professional
education to a larger number of students belonging to the socially
and educationally backward classes of citizens or for the
Scheduled Castes and Scheduled Tribes has been a matter of major
concern. At present, the number of seats available in aided or
State maintained institutions, particularly in respect of
professional education, is limited in comparison to those in
private unaided institutions.
2. It is laid down in article 46, as a directive principle of
State policy, that the State shall promote with special care the
educational and economic interests of the weaker sections of the
people and protect them from social injustice. To promote the
educational advancement of the socially and educationally backward
classes of citizens or of the Scheduled Castes and Scheduled
Tribes in matters of admission of students belonging to these
categories in unaided educational institutions, other than the
minority educational institutions referred to in clause (1) of
article 30 of the Constitution, it is proposed to amplify article
15.
3. The Bill seeks to achieve the above objects.”
Clause (1) of Article 15 of the Constitution provides that the State shall
not discriminate against any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them and clause (2) of Article 15 of
the Constitution provides that no citizen shall, on grounds of religion,
race, caste, sex, place of birth or any of them, be subject to any
disability, liability, restriction or condition with regard to (a) access
to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public
resort maintained wholly or partly out of State funds or dedicated to the
use of general public. These provisions were made to ensure that every
citizen irrespective of his religion, race, caste, sex, place of birth or
any of them, is given the equal treatment by the State and he has equal
access to public places. Despite these provisions in Article 15 of the
Constitution as originally adopted, some classes of citizens, Scheduled
Castes and Scheduled Tribes have remained socially and educationally
backward and have also not been able to access educational institutions for
the purpose of advancement. To amplify the provisions of Article 15 of the
Constitution as originally adopted and to provide equal opportunity in
educational institutions, clause (5) has been inserted in Article 15 by the
constitutional amendment made by the Parliament by the Ninety-Third
Amendment Act, 2005. As the object of clause (5) of Article 15 of the
Constitution is to provide equal opportunity to a large number of students
belonging to the socially and educationally backward classes of citizens or
for the Scheduled Castes and the Scheduled Tribes to study in educational
institutions and equality of opportunity is also the object of clauses
(1)and (2) of Article 15 of the Constitution, we cannot hold that clause
(5) of Article 15 of the Constitution is an exception or a proviso
overriding Article 15 of the Constitution, but an enabling provision to
make equality of opportunity promised in the Preamble in the Constitution a
reality.
17. For this view, we are supported by the majority judgment of this
Court in State of Kerala & Anr. v. N.M. Thomas & Ors. [(1976) 2 SCC 310] in
which this Court has held that clause (4) of Article 16 of the Constitution
which has opening words similar to the opening words in clause (5) of
Article 15 is not an exception or a proviso to Article 16, but is a
provision intended to give equality of opportunity to backward classes of
citizens in matters of public employment. Similarly, in Indra Sawhney &
Ors. v. Union of India & Ors. [1992 Supp (3) SCC 217], this Court following
the majority judgment in the case of State of Kerala & Anr. v. N.M. Thomas
& Ors. (supra) held that clause (4) of Article 16 was not an exception to
clause (1) of Article 16, but is an enabling provision to give effect to te
equality of opportunity in matters of public employment. These two
authorities have also been cited by K.G. Balakrishnan, CJ., in his judgment
in Ashoka Kumar Thakur v. Union of India (supra) to hold that clause (5) of
Article 15 of the Constitution is not an exception to clause (1) of Article
15, but may be taken as an enabling provision to carry out the
constitutional mandate of equality of opportunity.
18. We may now consider whether clause (5) of Article 15 of the
Constitution has destroyed the right under Article 19(1)(g) of the
Constitution to establish and administer private educational institutions.
It is for the first time that this Court held in T.M.A. Pai Foundation
(supra) that the establishment and running of an educational institution
“is occupation” within the meaning of Article 19(1)(g) of the Constitution.
In paragraph 20 of the majority judgment, while dealing with the four
components of the rights under Articles 19 and 26(a) of the Constitution in
respect of private unaided non-minority educational institutions, Kirpal,
CJ. has held that education is per se regarded as an activity that is
charitable in nature. Kirpal, CJ. has further held in paragraphs 53 and
68:
“53. With regard to the core components of the rights under
Articles 19 and 26(a), it must be held that while the State has
the right to prescribe qualifications necessary for admission,
private unaided colleges have the right to admit students of their
choice, subject to an objective and rational procedure of
selection and the compliance with conditions, if any, requiring
admission of a small percentage of students belonging to weaker
sections of the society by granting them freeships or
scholarships, if not granted by the Government…………………..”
“68. It would be unfair to apply the same rules and regulations
regulating admission to both aided and unaided professional
institutions. It must be borne in mind that unaided professional
institutions are entitled to autonomy in their administration
while, at the same time, they do not forego or discard the
principle of merit. It would, therefore, be permissible for the
university or the Government, at the time of granting recognition,
to require a private unaided institution to provide for merit-
based selection while, at the same time, giving the management
sufficient discretion in admitting students. This can be done
through various methods. For instance, a certain percentage of the
seats can be reserved for admission by the management out of those
students who have passed the common entrance test held by itself
or by the State/university and have applied to the college
concerned for admission, while the rest of the seats may be filled
up on the basis of counselling by the State agency. This will
incidentally take care of poorer and backward sections of the
society. The prescription of percentage for this purpose has to be
done by the Government according to the local needs and different
percentages can be fixed for minority unaided and non-minority
unaided and professional colleges. The same principles may be
applied to other non-professional but unaided educational
institutions viz. graduation and postgraduation non-professional
colleges or institutes.
19. Thus, the content of the right under Article 19(1)(g) of the
Constitution to establish and administer private educational
institutions, as per the judgment of this Court in T.M.A. Pai Foundation
(supra), includes the right to admit students of their choice and
autonomy of administration, but this Court has made it clear in T.M.A.
Pai Foundation (supra) that this right and autonomy will not be affected
if a small percentage of students belonging to weaker and backward
sections of the society were granted freeships or scholarships, if not
granted by the Government. This was the charitable element of the right
to establish and administer private educational institutions under
Article 19(1)(g) of the Constitution. Hence, the identity of the right
of private educational institutions under Article 19(1)(g) of the
Constitution as interpreted by this Court, was not to be destroyed by
admissions from amongst educationally and socially backward classes of
citizens as well as the Scheduled Castes and the Scheduled Tribes.
20. In P.A. Inamdar (supra), this Court speaking through Lahoti, CJ., was,
however, of the view that the judgment in T.M.A. Pai Foundation (supra)
held that there was no power vested on the State under clause (6) of
Article 19 to regulate or control admissions in the unaided educational
institutions so as to compel them to give up a share of the available
seats to the State or to enforce reservation policy of the State on
available seats in unaided professional institutions. This will be
clear from paragraph 125 of the judgment in P.A. Inamdar (supra), which
is extracted hereinbelow:
“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.
21. The reasoning adopted by this Court in P.A. Inamdar (supra), therefore,
is that the appropriation of seats by the State for enforcing a
reservation policy was not a regulatory measure and not reasonable
restriction within the meaning of clause (6) of Article 19 of the
Constitution. As there was no provision other than clause (6) of
Article 19 of the Constitution under which the State could in any way
restrict the fundamental right under Article 19(1)(g) of the
Constitution, Parliament made the Constitution (Ninety-third Amendment)
Act, 2005 to insert clause (5) in Article 15 of the Constitution to
provide that nothing in Article 19(1)(g) of the Constitution shall
prevent the State from making any special provision, by law, for the
advancement of any socially and educationally backward classes of
citizens or for the Scheduled Castes or the Scheduled Tribes in so far
as such special provisions relate to their admission to educational
institutions including private educational institutions, whether aided
or unaided by the State. Clause (5) in Article 15 of the Constitution,
thus, vests a power on the State, independent of and different from, the
regulatory power under clause (6) of Article 19, and we have to examine
whether this new power vested in the State which enables the State to
force the charitable element on a private educational institution
destroys the right under Article 19(1)(g) of the Constitution.
22. According to Dr. Dhavan, the right of a private educational
institution under Article 19(1)(g) of the Constitution as laid down by
this Court in T.M.A. Pai Foundation (supra) has a voluntary element. In
fact, this Court in P.A. Inamdar (supra) has held in paragraph 126 at
page 601 of the SCC that the observations in paragraph 68 of the
judgment in T.M.A. Pai Foundation (supra) merely permit unaided private
institutions to maintain merit as the criterion of admission by
voluntarily agreeing for seat-sharing with the State or adopting
selection based on common entrance test of the State and that there are
also observations in T.M.A. Pai Foundation (supra) to say that they may
frame their own policy to give freeships 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 the weaker and poorer
sections of the society. In our view, all freedoms under which Article
19(1) of the Constitution, including the freedom under Article 19(1)(g),
have a voluntary element but this voluntariness in all the freedoms in
Article 19(1) of the Constitution can be subjected to reasonable
restrictions imposed by the State by law under clauses (2) to (6) of
Article 19 of the Constitution. Hence, the voluntary nature of the
right under Article 19(1)(g) of the Constitution can be subjected to
reasonable restrictions imposed by the State by law under clause (6) of
Article 19 of the Constitution. As this Court has held in T.M.A. Pai
Foundation (supra) and P.A. Inamdar (supra) the State can under clause
(6) of Article 19 make regulatory provisions to ensure the maintenance
of proper academic standards, atmosphere and infrastructure (including
qualified staff) and the prevention of maladministration by those in
charge of the management. However, as this Court held in the aforesaid
two judgments that nominating students for admissions would be an
unacceptable restriction in clause (6) of Article 19 of the
Constitution, Parliament has stepped in and in exercise of its amending
power under Article 368 of the Constitution inserted clause (5) in
Article 15 to enable the State to make a law making special provisions
for admission of socially and educationally backward classes of citizens
or for the Scheduled Castes and Scheduled Tribes for their advancement
and to a very limited extent affected the voluntary element of this
right under Article 19(1)(g) of the Constituion. We, therefore, do not
find any merit in the submission of learned counsel for the petitioners
that the identity of the right of unaided private educational
institutions under Article 19(1)(g) of the Constitution has been
destroyed by clause (5) of Article 15 of the Constitution.
23. We may now examine whether the Ninety-Third Amendment satisfies the
width test. A plain reading of clause (5) of Article 15 would show that
the power of a State to make a law can only be exercised where it is
necessary for advancement of socially and educationally backward classes
of citizens or for the Scheduled Castes and Scheduled Tribes and not for
any other purpose. Thus, if a law is made by the State only to appease
a class of citizen which is not socially or educationally backward or
which is not a Scheduled Caste or Scheduled Tribe, such a law will be
beyond the powers of the State under clause (5) of Article 15 of the
Constitution. A plain reading of clause (5) of Article 15 of the
Constitution will further show that such law has to be limited to making
a special provision relating to admission to private educational
institutions, whether aided or unaided, by the State. Hence, if the
State makes a law which is not related to admission in educational
institutions and relates to some other aspects affecting the autonomy
and rights of private educational institutions as defined by this Court
in T.M.A. Pai Foundation, such a law would not be within the power of
the State under clause (5) of Article 15 of the Constitution. In other
words, power in clause (5) of Article 15 of the Constitution is a guided
power to be exercised for the limited purposes stated in the clause and
as and when a law is made by the State in purported exercise of the
power under clause (5) of Article 15 of the Constitution, the Court will
have to examine and find out whether it is for the purposes of
advancement of any socially and educationally backward classes of
citizens or for the Scheduled Castes and the Scheduled Tribes and
whether the law is confined to admission of such socially and
educationally backward classes of citizens or for the Scheduled Castes
and the Scheduled Tribes to private educational institutions, whether
aided or unaided, and if the Court finds that the power has not been
exercised for the purposes mentioned in clause (5) of Article 15 of the
Constitution, the Court will have to declare the law as ultra vires
Article 19(1)(g) of the Constitution. In our opinion, therefore, the
width of the power vested on the State under clause (5) of Article 15 of
the Constitution by the constitutional amendment is not such as to
destroy the right under Article 19(1)(g) of the Constitution.
24. We may now examine the contention of Mr. Nariman that clause (5) of
Article 15 of the Constitution fails to make a distinction between aided
and unaided educational institutions and treats both aided and unaided
alike in the matter of making special provisions for admission of
socially and educationally backward classes of citizens or for the
Scheduled Castes and Scheduled Tribes. The distinction between a
private aided educational institution and a private unaided educational
institution is that private educational institutions receive aid from
the State, whereas private unaided educational institutions do not
receive aid from the State. As and when a law is made by the State
under clause (5) of Article 15 of the Constitution, such a law would
have to be examined whether it has taken into account the fact that
private unaided educational institutions are not aided by the State and
has made provisions in the law to ensure that private unaided
educational institutions are compensated for the admissions made in such
private unaided educational institutions from amongst socially and
educationally backward classes of citizens or the Scheduled Castes and
the Scheduled Tribes. In our view, therefore, a law made under clause
(5) of Article 15 of the Constitution by the State on the ground that it
treats private aided educational institutions and private unaided
educational institutions alike is not immune from a challenge under
Article 14 of the Constitution. Clause (5) of Article 15 of the
Constitution only states that nothing in Article 15 or Article 19(1)(g)
will prevent the State to make a special provision, by law, for
admission of socially and educationally backward classes of citizens or
for the Scheduled Castes and the Scheduled Tribes to educational
institutions including private educational institutions, whether aided
or unaided by the State. Clause (5) of Article 15 of the Constitution
does not say that such a law will not comply with the other requirements
of equality as provided in Article 14 of the Constitution. Hence, we do
not find any merit in the submission of the Mr. Nariman that clause (5)
of Article 15 of the Constitution that insofar as it treats unaided
private educational institutions and aided private educational
institutions alike it is violative of Article 14 of the Constitution.
25. We may now deal with the contention of Mr. Divan that clause (5) of
Article 15 of the Constitution is violative of Article 14 of the
Constitution as it excludes from its purview the minority institutions
referred to in clause (1) of Article 30 of the Constitution and the
contention of Mr. Nariman that clause (5) of Article 15 excludes both
unaided minority institutions and aided minority institutions alike and
is thus violative of Article 14 of the Constitution. Articles 29(2)
30(1) and 30(2) of the Constitution, which are relevant, for deciding
these contentions, are quoted hereinbelow:
“29. Protection of interests of minorities-(1)………………………………….
(2) No citizen shall be denied admission into any educational
institution maintained by the State or receiving aid out of
State funds on grounds only of religion, race, caste, language
or any of them.
30. Right of minorities to establish and administer educational
institutions-(1) All minorities, whether based on religion or
language, shall have the right to establish and administer
educational institutions of their choice.
(1A) ………………………………………………
(2) The state shall not, in granting aid to educational
institutions, discriminate against any educational institution
on the ground that it is under the management of a minority,
whether based on religion or language.”
On the question whether the right of minority institutions under Article
30(1) of the Constitution would be affected by admission of students who do
not belong to the minority community which has established the
institutions, Kirpal C.J. writing the majority judgment in T.M.A. Pai
Foundation (supra) considered the previous judgments of this Court and then
held in paragraph 149 at page 582 and 583 of the SCC:
“149. Although the right to administer includes within it a
right to grant admission to students of their choice under
Article 30(1), when such a minority institution is granted the
facility of receiving grant-in-aid, Article 29(2) would apply,
and necessarily, therefore, one of the right of administration
of the minorities would be eroded to some extent.
Article 30(2) is an injunction against the state not to
discriminate against the minority educational institution and
prevent it from receiving aid on the ground that the institution
is under the management of a minority. While, therefore, a
minority educational institution receiving grant-in-aid would
not be completely outside the discipline of Article 29(2) of the
Constitution by no stretch of imagination can the rights
guaranteed under Article 30(1) be annihilated. It is this
context that some interplay between Article 29(2) and
Article 30(1) is required. As observed quite aptly in St.
Stephen's case "the fact that Article 29(2) applies to
minorities as well as non-minorities does not mean that it was
intended to nullify the special right guaranteed to minorities
in Article 30(1)." The word "only" used in Article 29(2) is of
considerable significance and has been used for some avowed
purpose. Denying admission to non-minorities for the purpose of
accommodating minority students to a reasonable extent will not
be only on grounds of religion etc., but is primarily meant to
preserve the minority character of the institution and to
effectuate the guarantee under Article 30(1). The best possible
way is to hold that as long as the minority educational
institution permits admission of citizens belonging to the non-
minority class to a reasonable extent based upon merit, it will
not be an infraction of Article 29(2), even though the
institution admits students of the minority group of its own
choice for whom the institution was meant. What would be a
reasonable extent would depend upon variable factors, and it may
not be advisable to fix any specific percentage. The situation
would vary according to the type of institution and the nature
of education that is being imparted in the institution. Usually,
at the school level, although it may be possible to fill up all
the seats with students of the minority group, at the higher
level, either in colleges or in technical institutions, it may
not be possible to fill up all the seats with the students of
the minority group. However, 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. It is for this reason that a
variable percentage of admission of minority students depending
on the type of institution and education is desirable, and
indeed, necessary, to promote the constitutional guarantee
enshrined in both Article 29(2) and Article 30.”
Thus, the law as laid down by this Court is that the minority character of
an aided or unaided minority institution cannot be annihilated by admission
of students from communities other than the minority community which has
established the institution, and whether such admission to any particular
percentage of seats will destroy the minority character of the institution
or not will depend on a large number of factors including the type of
institution.
26. Clause (5) of Article 15 of the Constitution enables the State to make
a special provision, by law, for the advancement of socially and
educationally backward classes of citizens or for the Scheduled Castes
and Scheduled Tribes. Such admissions of socially and educationally
backward classes of citizens or for the Scheduled Castes and the
Scheduled Tribes who may belong to communities other than the minority
community which has established the institution, may affect the right of
the minority educational institutions referred to in clause (1) of
Article 30 of the Constitution. In other words, the minority character
of the minority educational institutions referred to in clause (1) of
Article 30 of the Constitution, whether aided or unaided, may be
affected by admissions of socially and educationally backward classes of
citizens or the Scheduled Castes and the Scheduled Tribes and it is for
this reason that minority institutions, aided or unaided, are kept
outside the enabling power of the State under clause (5) of Article 15
with a view to protect the minority institutions from a law made by the
majority. As has been held by the Constitution Bench of this Court in
Ashoka Kumar Thakur v. Union of India (supra), the minority educational
institutions, by themselves, are a separate class and their rights are
protected under Article 30 of the Constitution, and, therefore, the
exclusion of minority educational institutions from Article 15(5) is not
violative of Article 14 of the Constitution.
27. We may now consider the contention of Mr. Divan that clause (5) of
Article 15 of the Constitution is violative of secularism insofar as it
excludes religious minority institutions referred to in Article 30(1) of
the Constitution from the purview of clause (5) of Article 15 of the
Constitution. In Dr. M. Ismail Faruqui and Others v. Union of India and
Others (supra), this Court has held that the Preamble of the
Constitution read in particular with Articles 15 to 28 emphasis this
aspect and indicates that the concept of secularism embodied in the
constitutional scheme is a creed adopted by the Indian people. Hence,
secularism is no doubt a basic feature of the Constitution, but we fail
to appreciate how clause (5) of Article 15 of the Constitution which
excludes religious minority institutions in clause (1) of Article 30 of
the Constitution is in any way violative of the concept of secularism.
On the other hand, this Court has held in T.M.A. Pai Foundation (supra)
that the essence of secularism in India is the recognition and
preservation of the different types of people, with diverse languages
and different beliefs and Articles 29 and 30 seek to preserve such
differences and at the same time unite the people of India to form one
strong nation. (see paragraph 161 of the majority judgment of Kirpal,
C.J., in T.M.A. Pai Foundation at page 587 of the SCC). In our
considered opinion, therefore, by excluding the minority institutions
referred to in clause (1) of Article 30 of the Constitution, the secular
character of India is maintained and not destroyed.
28. We may now come to the submission of Mr. Nariman that the fundamental
right under Article 21 read with Article 51A(j) of the Constitution is
violated by clause (5) of Article 15 of the Constitution. According to
Mr. Nariman, every person has a right under Article 21 and a duty under
Article 51A(j) to strive towards excellence in all spheres of individual
and collective activity, but this will not be possible if private
educational institutions in which a person studies for the purpose of
achieving excellence are made to admit students from amongst backward
classes of citizens and from the Scheduled Castes and the Scheduled
Tribes. This contention, in our considered opinion, is not founded on
the experience of educational institutions in India. Educational
institutions in India such as Kendriya Vidyalayas, Indian Institute of
Technology, All India Institute of Medical Sciences and Government
Medical Colleges admit students in seats reserved for backward classes
of citizens and for the Scheduled Castes and the Scheduled Tribes and
yet these Government institutions have produced excellent students who
have grown up to be good administrators, academicians, scientists,
engineers, doctors and the like. Moreover, the contention that
excellence will be compromised by admission from amongst the backward
classes of citizens and the Scheduled Castes and the Scheduled Tribes in
private educational institutions is contrary to the Preamble of the
Constitution which promises to secure to all citizens “fraternity
assuring the dignity of the individual and the unity and integrity of
the nation”. The goals of fraternity, unity and integrity of the nation
cannot be achieved unless the backward classes of citizens and the
Scheduled Castes and the Scheduled Tribes, who for historical factors,
have not advanced are integrated into the main stream of the nation.
We, therefore, find no merit in the submission of Mr. Nariman that
clause (5) of Article 15 of the Constitution violates the right under
Article 21 of the Constitution.
29. We accordingly hold that none of the rights under Articles 14, 19(1)(g)
and 21 of the Constitution have been abrogated by clause (5) of Article
15 of the Constitution and the view taken by Bhandari, J. in Ashoka
Kumar Thakur v. Union of India (supra) that the imposition of
reservation on unaided institutions by the Ninety-third Amendment has
abrogated Article 19(1)(g), a basic feature of the Constitution is not
correct. Instead, we hold that the (Ninety-third Amendment) Act, 2005
of the Constitution inserting clause (5) of Article 15 of the
Constitution is valid.
Validity of Article 21A of the Constitution
Contention of the learned counsel for the petitioners:
30. The second substantial question of law which we are called upon to
decide is whether by inserting Article 21A by the Constitution (Eighty-
Sixth Amendment) Act, 2002, the Parliament has altered the basic
structure or framework of the Constitution. Before we refer to the
contentions of the learned counsel for the petitioners, we must
reiterate some facts. Article 21A is titled ‘Right to Education’ and it
provides that 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. Accordingly, the 2009 Act was enacted by
Parliament to provide free and compulsory education to all children of
the age of six to fourteen years. The validity of the 2009 Act was
challenged and considered in Society for Unaided Private Schools of
Rajasthan v. Union of India & Anr. (supra) by a three-Judge Bench of
this Court. Two learned Judges S.H. Kapadia C.J. and Swatanter Kumar J.
held that the 2009 Act 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.
The two learned Judges, however, held that the 2009 Act, in particular
Sections 12(1)(c) and Section 18(3), infringe the fundamental rights
guaranteed to unaided minority schools under Article 30(1) of the
Constitution and therefore the 2009 Act shall not apply to such unaided
minority schools. Differing from the majority opinion expressed by the two
learned Judges, Radhakrishnan J. held that Article 21A casts an obligation
on the State and not on unaided non-minority and unaided minority schools
to provide free and compulsory education to children of the age of six to
fourteen years. After the aforesaid judgment of this Court in Society for
Unaided Private Schools of Rajasthan v. Union of India & Anr. (supra), the
2009 Act was amended by the Right of Children to Free And Compulsory
Education Act, 2009 (Amendment Act, 2012) and by the amendment, it was
provided in sub-section (4) of Section 1 of the 2009 Act that subject to
the provisions of Articles 29 and 30 of the Constitution, the provisions of
the 2009 Act shall apply to conferment of rights on children to free and
compulsory education.
31. Mr. Rohatgi, learned senior counsel for the petitioners in Writ
Petition (C) No.416 of 2012, submitted that Article 21A of the
Constitution creates obligation only upon the State and its
instrumentalities as defined in Article 12 of the Constitution and does
not cast any obligation on a private unaided educational institution.
He submitted that the minority opinion of Radhakrishnan J. in Society
for Unaided Private Schools of Rajasthan v. Union of India & Anr.
(supra) is, therefore, a correct interpretation of Article 21A. He
submitted that if Article 21A is interpreted to include the private
unaided educational institutions within its sweep then it would abrogate
the right under Article 19(1)(g) of the Constitution to establish and
administer private educational institutions which is a basic feature of
the Constitution.
32. Mr. Nariman, learned senior counsel for the petitioners in Writ
Petition (C) No.128 of 2014, submitted that word “State” used in Article
21A of the Constitution would mean the State as defined in Article 12 of
the Constitution and therefore would include the Government and
Parliament of India and the Government and the Legislature of each of
the States and all local or other authorities within the territory of
India or under the control of the Government of India. He submitted
that this Court has held in P.D. Shamdasani v. The Central Bank of India
Ltd. (AIR 1952 SC 1952) that the language and structure of Article 19
and its setting in Part III of the Constitution clearly show that the
Article was intended to protect those freedoms against State action only
and hence violation of rights of property by individuals is not within
the purview of Article 19 of the Constitution. He submitted that this
Court has also held in Smt. Vidya Verma v. Dr. Shiv Narain Verma (AIR
1956 SC 108) that the fundamental right of personal liberty under
Article 21 of the Constitution is available against only the State and
not against private individuals. He submitted that, therefore, the word
“State” in Article 21A of the Constitution would not include private
unaided educational institutions or private individuals.
33. Mr. Nariman submitted that before the Constitution (Eighty-Sixth
Amendment) Act, 2002, Article 45 provided that the State shall endeavour
to provide, within a period of ten years from the commencement of the
Constitution, “for” free and compulsory education for all children until
they complete the age of fourteen years. He submitted that what Article
45 therefore meant was that the State alone shall endeavour to provide
“for” free and compulsory education to all children upto the age of
fourteen years. He submitted that by the Constitution (Eighty-Sixth
Amendment) Act, 2002, Article 45 was deleted and in its place Article
21A was inserted in the Constitution. He submitted that in Article 21A
of the Constitution, the word “for” is missing but this does not mean
that the obligation of the State to fund free and compulsory education
to all children upto the age of 14 years could be passed on by the State
to private unaided educational institutions. He submitted that Article
21A, if construed to mean that the State could by law pass on its
obligation under Article 21A to provide free and compulsory education to
all children upto the age of fourteen years to private unaided schools,
Article 21A of the Constitution would abrogate the right of private
educational schools under Article 19(1)(g) of the Constitution as
interpreted by this Court in T.M.A. Pai Foundation (supra).
34. Mr. Nariman submitted that the Objects and Reasons of the Bill which
became the 2009 Act explicitly stated that the 2009 Act is pursuant to
Article 21A of the Constitution but did not make any reference to clause
(5) of Article 15 of the Constitution. He submitted that the validity
of the provisions of the 2009 Act will, therefore, have to be tested
only by reference to Article 21A of the Constitution and not by
reference to clause (5) of Article 15 of the Constitution. According to
both Mr. Rohatgi and Mr. Nariman, Section 12(1(c) of the 2009 Act
insofar as it provides that a private unaided school shall admit in
Class I to the extent of at least 25% of the total strength of the
class, children belonging to weaker sections and disadvantaged group in
the neighborhood and provide free and compulsory education till its
completion is violative of the right of private unaided schools under
Article 19(1)(g) of the Constitution as interpreted by this Court in
T.M.A. Pai Foundation (supra) and P.A. Inamdar (supra). They submitted
that the majority opinion of the three-Judge Bench in Society for
Unaided Private Schools of Rajasthan v. Union of India & Anr. (supra)
is, therefore, not correct.
35. Mr. Ajmal Khan, learned senior counsel appearing for the petitioners
in Writ Petition (C) No.1081 of 2013 (Muslim Minority Schools Managers’
Association) and Mr. T.R. Andhyarujina, learned senior counsel appearing
for intervener in Writ Petition (C) No.60 of 2014 (La Martineire
Schools) that under Article 30(1) of the Constitution all minorities,
whether based on religion or language, shall have the right to establish
and administer educational institutions of their choice. They submitted
that the State while making the law to provide free and compulsory
education to all children of the age of six to fourteen years cannot be
allowed to encroach on this right of the minority institutions under
Article 30(1) of the Constitution. They referred to the decisions of
this Court right from the Kerala Educational Bill case to the T.M.A. Pai
case (supra) to argue that admitting children other than those of the
minority community which establish the school cannot be forced upon the
minority institutions, whether aided or unaided. They submitted that
2009 Act, if made applicable to minority schools, aided or unaided, will
be ultra vires Article 30(1) of the Constitution. They submitted that
the majority judgment of this Court in Society for Unaided Private
Schools of Rajasthan v. Union of India & Anr. (supra), has taken a view
that the 2009 Act will not apply to unaided minority schools but will
apply to aided minority schools. They submitted that accordingly sub-
section (4) of Section 1 of the 2009 Act provides that subject to the
provisions of articles 29 and 30 of the Constitution, the provisions of
the Act shall apply to conferment of rights on children to free and
compulsory education. They submitted that this sub-section (4) of
Section 1 of the 2009 Act should be declared as ultra vires Article
30(1) of the Constitution.
Submissions of learned counsel for the Union of India:
36. In reply, Mr. K.V. Vishwanathan, learned Additional Solicitor General,
submitted that the Statement of Objects and Reasons of the Bill, which
was enacted as the Constitution (Eighty-Sixth Amendment) Act, 2002,
stated that the goal set out in Article 45 of the Constitution of
providing free and compulsory education for children upto the age of 14
years could not be achieved even after 50 years of adoption of the
provision and in order to fulfill this goal, it was felt that a new
provision in the Constitution should be inserted as Article 21A
providing that 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. He submitted that in accordance with
Article 21A of the Constitution, the 2009 Act has been enacted which
provides the manner in which such free and compulsory education for
children upto the age of 14 years shall be provided by the State and it
provides in Section 12(1)(c) that private unaided schools shall admit in
Class I from amongst weaker sections of society and from disadvantaged
groups at least twenty-five per cent of the strength of the class and
provide free and compulsory education.
37. Mr. Vishwanathan submitted that private educational institutions
cannot have any grievance in this regard because they are performing a
function akin to the function of the State. He submitted that applying
the functional test private educational institutions are also State
within the meaning of Article 12 of the Constitution and, therefore, the
argument of Mr. Nariman that the obligation of providing free and
compulsory education to all children of the age of six to fourteen years
cannot be passed on by the State to private educational institutions has
no substance. Mr. Vishwanathan submitted that in paragraph 53 of the
judgment in T.M.A. Pai Foundation (supra) this Court has held that while
private unaided educational institutions have the right to admit
students of their choice, admission of a small percentage of students
belonging to weaker sections of the society by granting them freeships
or scholarships, if not granted by the Government should also be done.
He submitted that in paragraph 68 of T.M.A. Pai Foundation (supra), this
Court has also held that a small percentage of seats may also be filled
up to take care of poorer and backward sections of the society. He
submitted that the 2009 Act, therefore, has provided in Section 12(1)(c)
that an unaided private school 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
and this provision of the 2009 Act, therefore, is not ultra vires
Article 19(1)(g) of the Constitution.
38. Regarding minority institutions, Mr. Vishwanathan submitted that under
Article 3)(1) of the Constitution they have equal status and accordingly
this Court has held in Society for Unaided Private Schools of Rajasthan
v. Union of India & Anr. (supra) the 2009 Act will not apply to unaided
minority schools but will apply to aided minority schools. He submitted
that accordingly the 2009 Act was amended by the Right of Children to
Free And Compulsory Education (Amendment) Act, 2012, so as to provide in
sub-section (4) of Section 1 of the 2009 Act that subject to the
provisions of Articles 29 and 30 of the Constitution, the provisions of
the 2009 Act shall apply to conferment of rights on children to free and
compulsory education.
Opinion of the Court on Article 21A of the Constitution and on the validity
of 2009 Act:
39. We have considered the submissions of learned counsel for the parties
and we find that this is what it is stated in the Statement of Objects and
Reasons of the Constitution (Eighty-Third Amendment) Bill, 1997, which
ultimately was enacted as the Constitution (Eighty-Sixth Amendment) Act,
2002:
“The Constitution of India in a Directive Principle contained in
article 45, has 'made a provision for free and compulsory
education for all children up to the age of fourteen years
within ten years of promulgation of the Constitution. We could
not achieve this goal even after 50 years of adoption of this
provision. The task of providing education to all children in
this age group gained momentum after the National Policy of
Education (NPE) was announced in 1986. The Government of India,
in partnership with the State Governments, has made strenuous
efforts to fulfil this mandate and, though significant
improvements were seen in various educational indicators, the
ultimate goal of providing universal and quality education still
remains unfulfilled. In order to fulfil this goal, it is felt
that an explicit provision should be made in the Part relating
to Fundamental Rights of the Constitution.
2. With a view to making right to free and compulsory education
a fundamental right, the Constitution (Eighty-third Amendment)
Bill, 1997 was introduced in Parliament to insert a new article,
namely, article 21 A conferring on all children in the age group
of 6 to 14 years the right to free and compulsory education. The
said Bill was scrutinised by the Parliamentary Standing
Committee on Human Resource Development and the subject was also
dealt with in its 165th 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, 200l 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 5lA 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.
MURLI MANOHAR JOSHI.
NEW DELHI;
The 16th November, 2001.”
It will, thus, be clear from the Statement of Objects and Reasons extracted
above that although the Directive Principle in Article 45 contemplated that
the State will provide free and compulsory education for all children up to
the age of fourteen years within ten years of promulgation of the
Constitution, this goal could not be achieved even after 50 years and,
therefore, a constitutional amendment was proposed to insert Article 21A in
Part III of the Constitution. Bearing in mind this object of the
Constitution (Eight-Sixth Amendment) Act, 2002 inserting Article 21A of the
Constitution, we may now proceed to consider the submissions of learned
counsel for the parties.
40. Article 21A of the Constitution, as we have noticed, states that 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. The word ‘State’ in Article 21A can only mean the ‘State’ which
can make the law. Hence, Mr. Rohatgi and Mr. Nariman are right in their
submission that the constitutional obligation under Article 21A of the
Constitution is on the State to provide free and compulsory education to
all children of the age of 6 to 14 years and not on private unaided
educational institutions. Article 21A, however, states that the State
shall by law determine the “manner” in which it will discharge its
constitutional obligation under Article 21A. Thus, a new power was vested
in the State to enable the State to discharge this constitutional
obligation by making a law. However, Article 21A has to be harmoniously
construed with Article 19(1)(g) and Article 30(1) of the Constitution. As
has been held by this Court in Venkataramana Devaru v. State of Mysore (AIR
1958 SC 255):
“The rule of construction is well settled that when there are in
an enactment two provisions which cannot be reconciled with each
other, they should be so interpreted that, if possible, effect
could be given to both. This is what is known as the rule of
harmonious construction.”
We do not find anything in Article 21A which conflicts with either the
right of private unaided schools under Article 19(1)(g) or the right of
minority schools under Article 30(1) of the Constitution, but the law made
under Article 21A may affect these rights under Articles 19(1)(g) and
30(1). The law made by the State to provide free and compulsory education
to the children of the age of 6 to 14 years should not, therefore, be such
as to abrogate the right of unaided private educational schools under
Article 19(1)(g) of the Constitution or the right of the minority schools,
aided or unaided, under Article 30(1) of the Constitution.
41. While discussing the validity of clause (5) of Article 15 of the
Constitution, we have already noticed that in paragraphs 53 and 68 of the
judgment in T.M.A. Pai Foundation (supra), this Court has held that
admission of a small percentage of students belonging to weaker sections of
the society by granting them freeships or scholarships, if not granted by
the Government and the admission to some of the seats to take care of
poorer and backward sections of the society may be permissible and would
not be inconsistent with the rights under Articles 19(1)(g) of the
Constitution. In P.A. Inamdar (supra), however, this Court explained that
there was nothing in this Court’s judgment in T.M.A. Pai Foundation (supra)
to say that such admission of students from amongst weaker, backward and
poorer sections of the society in private unaided institutions can be done
by the State because the power vested on the State in clause (6) of Article
19 of the Constitution is to make only regulatory provisions and this power
could not be used by the State to force admissions from amongst weaker,
backward and poorer sections of the society on private unaided educational
institutions. While discussing the validity of clause (5) of Article 15,
we have also held that there is an element of voluntariness of all the
freedoms under Article 19(1) of the Constitution, but the voluntariness in
these freedoms can be subjected to law made under the powers available to
the State under clause (2) to (6) of Article 19 of the Constitution.
42. In our considered opinion, therefore, by the Constitution (Eighty-
Sixth Amendment) Act, a new power was made available to the State under
Article 21A of the Constitution to make a law determining the manner in
which it will provide free and compulsory education to the children of the
age of six to fourteen years as this goal contemplated in the Directive
Principles in Article 45 before this constitutional amendment could not be
achieved for fifty years. This additional power vested by the Constitution
(Eighty-Sixth Amendment) Act, 2002 in the State is independent and
different from the power of the State under clause (6) of Article 19 of the
Constitution and has affected the voluntariness of the right under Article
19(1)(g) of the Constitution. By exercising this additional power, the
State can by law impose admissions on private unaided schools and so long
as the law made by the State in exercise of this power under Article 21A of
the Constitution is for the purpose of providing free and compulsory
education to the children of the age of 6 to 14 years and so long as such
law forces admission of children of poorer, weaker and backward sections of
the society to a small percentage of the seats in private educational
institutions to achieve the constitutional goals of equality of opportunity
and social justice set out in the Preamble of the Constitution, such a law
would not be destructive of the right of the private unaided educational
institutions under Article 19(1)(g) of the Constitution.
43. To give an idea of the goals Parliament intended to achieve by
enacting the 2009 Act, we extract paragraphs 4, 5 and 6 of the Statement of
Objects and Reasons of the Bill which was enacted as the 2009 Act
hereinbelow:
“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 Governments, but also of schools
which are not dependent on Government funds.
5. It is, therefore, expedient and necessary to enact a suitable
legislation as envisaged in Article 21A of the Constitution.
6. The Bill seeks to achieve this objective.”
It will be clear from the aforesaid extract that the 2009 Act intended to
achieve the constitutional goal of equality of opportunity through
inclusive elementary education to all and also intended that private
schools which did not receive government aid should also take the
responsibility of providing free and compulsory education of satisfactory
quality to children from disadvantaged and weaker sections.
44. When we examine the 2009 Act, we find that under Section 12(1)(c)
read with Section 2(n)(iv) of the Act, an unaided school not receiving any
kind of aid or grants to meet its expenses from the appropriate Government
or the local authority is required to 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.
We further find that under Section 12(2) of the 2009 Act such a school
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. Thus,
ultimately it is the State which is funding the expenses of free and
compulsory education of the children belonging to weaker sections and
several groups in the neighbourhood, which are admitted to a private
unaided school. These provisions of the 2009 Act, in our view, are for the
purpose of providing free and compulsory education to children between the
age group of 6 to 14 years and are consistent with the right under Article
19(1)(g) of the Constitution, as interpreted by this Court in T.M.A. Pai
Foundation (supra) and are meant to achieve the constitutional goals of
equality of opportunity in elementary education to children of weaker
sections and disadvantaged groups in our society. We, therefore, do not
find any merit in the submissions made on behalf of the non-minority
private schools that Article 21A of the Constitution and the 2009 Act
violate their right under Article 19(1)(g) of the Constitution.
45. Under Article 30(1) of the Constitution, all minorities, whether
based on religion or language, shall have the right to establish and
administer educational institutions of their choice. Religious and
linguistic minorities, therefore, have a special constitutional right to
establish and administer educational schools of their choice and this Court
has repeatedly held that the State has no power to interfere with the
administration of minority institutions and can make only regulatory
measures and has no power to force admission of students from amongst non-
minority communities, particularly in minority schools, so as to affect the
minority character of the institutions. Moreover, in Kesavananda Bharati
Sripadagalvaru v. State of Kerala & Anr. (supra) Sikri, CJ., has even gone
to the extent of saying that Parliament cannot in exercise of its amending
power abrogate the rights of minorities. To quote the observations of
Sikri, CJ. in Kesavananda Bharati Sripadagalvaru v. State of Kerala & Anr.
(supra):
“178. The above brief summary of the work of the Advisory
Committee and the Minorities Sub-committee shows that no one ever
contemplated that fundamental rights appertaining to the
minorities would be liable to be abrogated by an amendment of the
Constitution. The same is true about the proceedings in the
Constituent Assembly. There is no hint anywhere that abrogation of
minorities’ rights was ever in the contemplation of the important
members of the Constituent Assembly. It seems to me that in the
context of the British plan, the setting up of Minorities Sub-
committee, the Advisory Committee and the proceedings of these
Committees, as well as the proceedings in the Constituent Assembly
mentioned above, it is impossible to read the expression
“Amendment of the Constitution” as empowering Parliament to
abrogate the rights of minorities.”
Thus, the power under Article 21A of the Constitution vesting in the State
cannot extend to making any law which will abrogate the right of the
minorities to establish and administer schools of their choice.
46. When we look at the 2009 Act, we find that Section 12(1)(b) read with
Section 2(n) (iii) provides that an aided school receiving aid and grants,
whole or part, of its expenses from the appropriate Government or the local
authority has to provide free and compulsory 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. Thus, a minority aided school is put under a legal
obligation to provide free and compulsory elementary education to children
who need not be children of members of the minority community which has
established the school. We also find that under Section 12(1)(c) read
with Section 2(n)(iv), an unaided school has to admit into twenty-five per
cent of the strength of class I children belonging to weaker sections and
disadvantaged groups in the neighbourhood. Hence, unaided minority schools
will have a legal obligation to admit children belonging to weaker sections
and disadvantaged groups in the neighbourhood who need not be children of
the members of the minority community which has established the school.
While discussing the validity of clause (5) of Article 15 of the
Constitution, we have held that members of communities other than the
minority community which has established the school cannot be forced upon a
minority institution because that may destroy the minority character of the
school. In our view, if the 2009 Act is made applicable to minority
schools, aided or unaided, the right of the minorities under Article 30(1)
of the Constitution will be abrogated. Therefore, the 2009 Act insofar it
is made applicable to minority schools referred in clause (1) of Article 30
of the Constitution is ultra vires the Constitution. We are thus of the
view that the majority judgment of this Court in Society for Unaided
Private Schools of Rajasthan v. Union of India & Anr. (supra) insofar as it
holds that the 2009 Act is applicable to aided minority schools is not
correct.
47. In the result, we hold that the Constitution (Ninety-third Amendment)
Act, 2005 inserting clause (5) of Article 15 of the Constitution and the
Constitution (Eighty-Sixth Amendment) Act, 2002 inserting Article 21A of
the Constitution do not alter the basic structure or framework of the
Constitution and are constitutionally valid. We also hold that the 2009
Act is not ultra vires Article 19(1)(g) of the Constitution. We, however,
hold that the 2009 Act insofar as it applies to minority schools, aided or
unaided, covered under clause (1) of Article 30 of the Constitution is
ultra vires the Constitution. Accordingly, Writ Petition (C) No.1081 of
2013 filed on behalf of Muslim Minority Schools Managers’ Association is
allowed and Writ Petition (C) Nos.416 of 2012, 152 of 2013, 60 of 2014, 95
of 2014, 106 of 2014, 128 of 2014, 144 of 2014, 145 of 2014, 160 of 2014
and 136 of 2014 filed on behalf of non-minority private unaided educational
institutions are dismissed. All I.As. stand disposed of. The parties,
however, shall bear their own costs.
.....……………..……………………CJI.
(R.M. Lodha)
.....……………..……………………….J.
(A. K. Patnaik)
.....……………..……………………….J.
(Sudhansu Jyoti Mukhopadhaya)
.....……………..……………………….J.
(Dipak Misra)
…....…………..………………………..J.
(Fakkir Mohamed Ibrahim Kalifulla)
New Delhi,
May 06, 2014.
