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