Seats for weaker sections under RTE (Right to Education)valid: Supreme Court of India-Soft copy of the order attached

New Delhi, April 12, 2012
The Supreme Court Thursday upheld the constitutional validity of the right to education (RTE) act that mandates unaided private schools to keep 25 percent seats for students from economically and socially weaker sections of society. However, the court made it clear that this quota would not be applicable to unaided minority institutions.

The apex court bench of Chief Justice SH. Kapadia and Justice Swatanter Kumar upheld the constitutional validity of Section 12 1C of the RTE act that provides 25 percent reservation for students from weaker sections of society.

However, Justice KS. Radhakrishnan, in a dissenting judgment, held that the mandate under RTE providing for reservation of seats was not constitutionally valid, thus none of the unaided schools, be it majority or minority, could be compelled to earmark 25 percent seats in their institutions for weaker sections.

The court said the judgment will come into force from Thursday itself, but the admissions already made will not be disturbed.

The Supreme Court was giving its verdict on a batch of petitions challenging the constitutional validity of the RTE law that requires private schools to earmark 25 percent seats for poorer students.

A batch of petitions by the Society for Unaided Private Schools, Independent Schools Federation of India and others had contested the provision in the law under which they had to reserve 25 percent seats for economically weaker sections in their schools.

The schools contended that the reservation for children from vulnerable sections of society violated their right to run educational institutions without the state's interference.

The schools' contention that the reservation for poor students would drain their resources was contested by the government.

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO. 95 OF 2010

Society for Un-aided Private Schools
of Rajasthan ... Petitioner(s)
versus
U.O.I. & Anr. ...Respondent(s)

with Writ Petition (C) Nos. 98/2010, 126/2010, 137/2010,
228/2010, 269/2010, 310/2010, 364/2010, 384/2010,
21/2011, 22/2011, 24/2011, 47/2011, 50/2011, 59/2011,
83/2011, 86/2011, 88/2011, 99/2011, 101/2011,
102/2011, 104/2011, 115/2011, 118/2011, 126/2011,
148/2011, 154/2011, 176/2011, 186/2011, 205/2011,
238/11 and 239/11.

JUDGMENT

S. H. KAPADIA, CJI

1. We have had the benefit of carefully considering the

erudite judgment delivered by our esteemed and learned

Brother Radhakrishnan, J. Regretfully, we find ourselves in

the unenviable position of having to disagree with the views

expressed therein concerning the non-applicability of the

Right of Children to Free and Compulsory Education Act,

2009 (for short "the 2009 Act") to the unaided non-minority
2

schools.

2. The judgment of Brother Radhakrishnan, J. fully sets

out the various provisions of the 2009 Act as well as the

issues which arise for determination, the core issue concerns

the constitutional validity of the 2009 Act.

Introduction

3. To say that "a thing is constitutional is not to say that it

is desirable" [see Dennis v. United States, (1950) 341 US

494].

4. A fundamental principle for the interpretation of a

written Constitution has been spelt out in R. v. Burah

[reported in (1878) 5 I.A. 178] which reads as under:

"The established Courts of Justice, when a question
arises whether the prescribed limits have been
exceeded, must of necessity determine that question;
and the only way in which they can properly do so, is
by looking to the terms of the Constitution by which,
affirmatively, the legislative powers were created, and
by which, negatively, they are restricted. If what has
been done is legislation, within the general scope of
the affirmative words which give the power, and if it
violates no express condition or restriction by which
that power is limited it is not for any Court to inquire
further, or to enlarge constructively those conditions
and restrictions".

5. Education is a process which engages many different

actors : the one who provides education (the teacher, the

owner of an educational institution, the parents), the one who
3

receives education (the child, the pupil) and the one who is

legally responsible for the one who receives education (the

parents, the legal guardians, society and the State). These

actors influence the right to education. The 2009 Act makes

the Right of Children to Free and Compulsory Education

justiciable. The 2009 Act envisages that each child must

have access to a neighbourhood school. The 2009 Act has

been enacted keeping in mind the crucial role of Universal

Elementary Education for strengthening the social fabric of

democracy through provision of equal opportunities to all.

The Directive Principles of State Policy enumerated in our

Constitution lay down that the State shall provide free and

compulsory education to all children upto the age of 14 years.

The said Act provides for right (entitlement) of children to free

and compulsory admission, attendance and completion of

elementary education in a neighbourhood school. The word

"Free" in the long title to the 2009 Act stands for removal by

the State of any financial barrier that prevents a child from

completing 8 years of schooling. The word "Compulsory" in

that title stands for compulsion on the State and the parental

duty to send children to school. To protect and give effect to

this right of the child to education as enshrined in Article 21
4

and Article 21A of the Constitution, the Parliament has

enacted the 2009 Act.

6. The 2009 Act received the assent of the President on

26.8.2009. It came into force w.e.f. 1.4.2010. The provisions

of this Act are intended not only to guarantee right to free and

compulsory education to children, but it also envisages

imparting of quality education by providing required

infrastructure and compliance of specified norms and

standards in the schools. The Preamble states that the 2009

Act stands enacted inter alia to provide for free and

compulsory education to all children of the age of 6 to 14

years. The said Act has been enacted to give effect to Article

21A of the Constitution.

Scope of the 2009 Act

7. Section 3(1) of the 2009 Act provides that every child of

the age of 6 to 14 years shall have a right to free and

compulsory education in a neighbourhood school till

completion of elementary education. Section 3(2) inter alia

provides that no child shall be liable to pay any kind of fee or

charges or expenses which may prevent him or her from

pursuing and completing the elementary education. An

educational institution is charitable. Advancement of
5

education is a recognised head of charity. Section 3(2) has

been enacted with the object of removing financial barrier

which prevents a child from accessing education. The other

purpose of enacting Section 3(2) is to prevent educational

institutions charging capitation fees resulting in creation of a

financial barrier which prevents a child from accessing or

exercising its right to education which is now provided for

vide Article 21A. Thus, sub-Section (2) provides that no child

shall be liable to pay any kind of fee or charges or expenses

which may prevent him or her from pursuing or completing

the elementary education. Section 4 inter alia provides for

special provision for children not admitted to or who have not

completed elementary education. Section 5 deals with the

situation where there is no provision for completion of

elementary education, then, in such an event, a child shall

have a right to seek transfer to any other school, excluding

the school specified in sub-clauses (iii) and (iv) of clause (n) of

Section 2, for completing his or her elementary education.

Chapter III provides for duties of appropriate government,

local authority and parents. Section 6 imposes an obligation

on the appropriate government and local authority to

establish a school within such areas or limits of
6

neighbourhood, as may be prescribed, where it is not so

established, within 3 years from the commencement of the

2009 Act. The emphasis is on providing "neighbourhood

school" facility to the children at the Gram Panchayat level.

Chapter IV of the 2009 Act deals with responsibilities of

schools and teachers. Section 12 (1)(c) read with Section 2(n)

(iii) and (iv) mandates that every recognised school imparting

elementary education, even if it is an unaided school, not

receiving any kind of aid or grant to meet its expenses from

the appropriate government or the local authority, is obliged

to admit in Class I, to the extent of at least 25% of the

strength of that class, children belonging to weaker section

and disadvantaged group in the neighbourhood and provide

free and compulsory elementary education till its completion.

As per the proviso, if the School is imparting pre-school

education, the same regime would apply. By virtue of Section

12(2) the unaided school which has not received any land,

building, equipment or other facilities, either free of cost or at

concessional rate, would be entitled for reimbursement of the

expenditure incurred by it to the extent of per child

expenditure incurred by the State, or the actual amount

charged from the child, whichever is less, in such manner as
7

may be prescribed. Such reimbursement shall not exceed per

child expenditure incurred by a school established, owned or

controlled by the appropriate government or a local authority.

Section 13 envisages that no school or person shall, while

admitting a child, collect any capitation fee and subject the

child or his or her parents to any screening procedure.

Section 15 mandates that a child shall be admitted in a

school at the commencement of the academic year or within

the prescribed extended period. Sections 16 and 17 provide

for prohibition of holding back and expulsion and of physical

punishment or mental harassment to a child. Section 18

postulates that after the commencement of the 2009 Act no

school, other than the excepted category, can be established

or can function without obtaining a certificate of recognition

from the appropriate authority. The appropriate authority

shall be obliged to issue the certificate of recognition within

the prescribed period specifying the conditions there for, if the

school fulfills the norms and standards specified under

Sections 19 and 25 read with the Schedule to the 2009 Act.

In the event of contravention of the conditions of recognition,

the prescribed authority can withdraw recognition after giving

an opportunity of being heard to such school. The order of
8

withdrawal of recognition should provide a direction to

transfer the children studying in the de-recognised school to

be admitted to the specified neighbourhood school. Upon

withdrawal of recognition, the de-recognised school cannot

continue to function, failing which, is liable to pay fine as per

Section 19(5). If any person establishes or runs a school

without obtaining certificate of recognition, or continues to

run a school after withdrawal of the recognition, shall be

liable to pay fine as specified in Section 19(5). The norms and

standards for establishing or for grant of recognition to a

school are specified in Section 19 read with the Schedule to

the 2009 Act. All schools which are established before the

commencement of the 2009 Act in terms of Section 19(2) are

expected to comply with specified norms and standards

within 3 years from the date of such commencement. Failure

to do so would entail in de-recognition of such school.

Section 22 postulates that the School Management

Committee constituted under Section 21, shall prepare a

School Development Plan in the prescribed manner. Section

22(2) provides that the School Development Plan so prepared

shall be the basis for the grants to be made by the

appropriate government or local authority, as the case may
9

be. That plan, however, cannot have any impact on

consideration of application for grant of recognition for

establishing an unaided school. To ensure that teachers

should contribute in imparting quality education in the

school itself, Section 28 imposes total prohibition on them to

engage in private tuition or private teaching activities.

Chapter VI inter alia provides for protection of rights of

children. Section 32 thus provides that any person having

grievance relating to the right of child under the 2009 Act,

may make a written complaint to the local authority having

jurisdiction, who in turn is expected to decide it within three

months after affording a reasonable opportunity of being

heard to the parties concerned. In addition, in terms of

Section 31, the Commissions constituted under the

provisions of the Commissions for Protection of Child Rights

Act, 2005 can monitor the child's right to education, so as to

safeguard the right of the child upon receiving any complaint

in that behalf relating to free and compulsory education.

8. By virtue of the 2009 Act, all schools established prior to

the commencement of the said Act are thus obliged to fulfill

the norms and standards specified inter alia in Sections 25,

26 and the Schedule of that Act. [See Section 19(2)]. The
10

State is also expected to first weed out those schools which

are non-performing, or under-performing or non-compliance

schools and upon closure of such schools, the students and

the teaching and non-teaching staff thereof should be

transferred to the neighbourhood school. The provision is

meant not only to strengthen the latter school by adequate

number of students but to consolidate and to impart quality

education due to the addition of teaching staff. Needless to

observe, that if there is inadequate response to the

government funded school, it is but appropriate that either

the divisions thereof or the school itself be closed and the

students and staff of such schools be transferred to a

neighbourhood school by resorting to Section 18(3) of the

2009 Act. Only after taking such decisions could the School

Development Plan represent the correct position regarding

the need of government aided schools in every locality across

the State. Besides, it will ensure proper and meaningful

utilization of public funds. In absence of such exercise, the

end result would be that on account of existing non-

performing or under-performing or non-compliance schools,

the School Development Plan would not reckon that locality

for establishment of another school. In our view, even the
11

State Government(s), by resorting to the provision of the 2009

Act, must take opportunity to re-organise its financial outflow

at the micro level by weeding out the non-performing or

under-performing or non-compliance schools receiving grant-

in- aid, so as to ensure that only such government funded

schools, who fulfill the norms and standards, are allowed to

continue, to achieve the object of the 2009 Act of not only

providing free and compulsory education to the children in

the neighbourhood school but also to provide quality

education. Thus, there is a power in the 2009 Act coupled

with the duty of the State to ensure that only such

government funded schools, who fulfill the norms and

standards, are allowed to continue with the object of

providing free and compulsory education to the children in

the neighbourhood school.

Validity and applicability of the 2009 Act qua unaided
non-minority schools

9. To begin with, we need to understand the scope of

Article 21A. It provides that the State shall provide free and

compulsory education to all children of the age of 6 to 14

years in such manner as the State may, by law, determine.

Thus, under the said Article, the obligation is on the State to
12

provide free and compulsory education to all children of

specified age. However, under the said Article, the manner in

which the said obligation will be discharged by the State has

been left to the State to determine by law. Thus, the State

may decide to provide free and compulsory education to all

children of the specified age through its own schools or

through government aided schools or through unaided private

schools. The question is whether such a law transgresses

any constitutional limitation? In this connection, the first

and foremost principle we have to keep in mind is that what

is enjoined by the directive principles (in this case Articles 41,

45 and 46) must be upheld as a "reasonable restriction"

under Articles 19(2) to 19(6). As far back as 1952, in State of

Bihar v. Maharajadhiraja Sir Kameshwar Singh of

Darbhanga [(1952) SCR 889], this Court has illustrated how a

directive principle may guide the Court in determining crucial

questions on which the validity of an important enactment

may be hinged. Thus, when the courts are required to decide

whether the impugned law infringes a fundamental right, the

courts need to ask the question whether the impugned law

infringes a fundamental right within the limits justified by the

directive principles or whether it goes beyond them. For
13

example, the scope of the right of equality of opportunity in

matters relating to employment (Article 16) to any office in the

State appears more fully defined when read with the

obligation of the State to promote with special care the

economic and other interests of the weaker sections (Article

46). Similarly, our understanding of the right "to practice any

profession or occupation" [Article 19(1)(g)] is clarified when we

read along with that right the obligation of the State to see

that the health of the workers and the tender age of the

children are not abused (Article 39). Thus, we need to

interpret the fundamental rights in the light of the

directive principles. The above principles are very relevant

in this case because the very content of Article 21A comes

from reading of Articles 41, 45 and 46 and, more particularly,

from Article 45 (as it then stood before the Constitution

(Eighty sixth Amendment) Act, 2002). It has been urged

before us that Article 45, as it then stood, imposed obligation

on the State to provide for free and compulsory education for

all children until they complete the age of 14 years and that

the said obligation cannot be shifted or passed on to an

unaided school, as defined in Section 2(n)(iv) of the 2009 Act.

To answer the said contention, one needs to appreciate the
14

scope of Articles 21, 21A, 19(1)(g) and Articles 41, 45 and 46

of the Constitution. At the outset, it may be stated, that

fundamental rights have two aspects they act as fetter on

plenary legislative powers and, secondly, they provide

conditions for fuller development of our people including their

individual dignity. Right to live in Article 21 covers access to

education. But unaffordability defeats that access. It defeats

the State's endeavour to provide free and compulsory

education for all children of the specified age. To provide for

free and compulsory education in Article 45 is not the same

thing as to provide free and compulsory education. The word

"for" in Article 45 is a preposition. The word "education" was

read into Article 21 by the judgments of this Court. However,

Article 21 merely declared "education" to fall within the

contours of right to live. To provide for right to access

education, Article 21A was enacted to give effect to Article 45

of the Constitution. Under Article 21A, right is given to the

State to provide by law "free and compulsory education".

Article 21A contemplates making of a law by the State. Thus,

Article 21A contemplates right to education flowing from the

law to be made which is the 2009 Act, which is child centric

and not institution centric. Thus, as stated, Article 21A
15

provides that the State shall provide free and compulsory

education to all children of the specified age in such manner

as the State may, by law, determine. The manner in which

this obligation will be discharged by the State has been left to

the State to determine by law. The 2009 Act is thus enacted

in terms of Article 21A. It has been enacted primarily to

remove all barriers (including financial barriers) which impede

access to education. One more aspect needs to be

highlighted. It is not in dispute that education is a recognised

head of "charity" [see T.M.A. Pai Foundation v. State of

Karnataka (2002) 8 SCC 481]. Therefore, even according to

T.M.A. Pai Foundation, if an educational institution goes

beyond "charity" into commercialization, it would not be

entitled to protection of Article 19(1)(g). This is where the

paradox comes in. If education is an activity which is

charitable, could the unaided non-minority educational

institution contend that the intake of 25% children belonging

to weaker section and disadvantaged group only in class I as

provided for in Section 12(1)(c) would constitute violation of

Article 19(1)(g)? Would such a provision not be saved by the

principle of reasonable restriction imposed in the interest of

the general public in Article 19(6) of the Constitution?
16

10. Coming to the principle of reasonableness, it may be

stated, that though subject-wise, Article 21A deals with

access to education as against right to establish and

administer educational institution in Article 19(1)(g), it is now

not open to anyone to contend that the law relating to right to

access education within Article 21A does not have to meet the

requirement of Article 14 or Article 19 for its reasonableness.

[See Khudiram Das v. State of West Bengal reported in

(1975) 2 SCR 832] After the judgment of this Court in

Maneka Gandhi v. Union of India [(1978) 1 SCC 248], the

principle of reasonableness is applicable to Article 14 of the

Constitution. As held by this Court in Glanrock Estate

Private Limited v. State of Tamil Nadu [(2010) 10 SCC 96],

Article 21 (right to life) remains the core of the Constitution

around which Article 14, Article 19 and others revolve. In

other words, all other fundamental rights in Part III would be

dependent upon right to life in Article 21 as interpreted by

this Court to include right to live with dignity, right to

education, etc. At the end of the day, whether one adopts the

pith and substance test or the nature and character of the

legislation test or the effect test, one finds that all these tests
17

have evolved as rules of interpretation only as a matter of

reasonableness. They help us to correlate Article 21 with

Article 14, Article 19 and, so on. Applying the above principle

of reasonableness, though the right to access education falls

as a subject matter under Article 21A and though to

implement the said Article, Parliament has enacted the 2009

Act, one has to judge the validity of the said Act in the light of

the principle of reasonableness in Article 19(6), particularly,

when in T.M.A. Pai Foundation and in P.A. Inamdar v.

State of Maharashtra [(2005) 6 SCC 537], it has been held

that right to establish and administer an educational

institution falls under Article 19(1)(g) of the Constitution.

Thus, the question which arises for determination is

whether Section 12(1)(c) of the 2009 Act is a reasonable

restriction on the non-minority's right to establish and

administer an unaided educational institution under Article

19(6)? Article 21 says that "no person shall be deprived of

his life...except according to the procedure established by law"

whereas Article 19(1)(g) under the chapter "right to freedom"

says that all citizens have the right to practice any profession

or to carry on any occupation, trade or business which

freedom is not absolute but which could be subjected to
18

social control under Article 19(6) in the interest of general

public. By judicial decisions, right to education has been

read into right to life in Article 21. A child who is denied right

to access education is not only deprived of his right to live

with dignity, he is also deprived of his right to freedom of

speech and expression enshrined in Article 19(1)(a). The

2009 Act seeks to remove all those barriers including

financial and psychological barriers which a child belonging

to the weaker section and disadvantaged group has to face

while seeking admission. It is true that, as held in T.M.A. Pai

Foundation as well as P.A. Inamdar, the right to establish

and administer an educational institution is a fundamental

right, as long as the activity remains charitable under Article

19(1)(g), however, in the said two decisions the correlation

between Articles 21 and 21A, on the one hand, and Article

19(1)(g), on the other, was not under consideration. Further,

the content of Article 21A flows from Article 45 (as it then

stood). The 2009 Act has been enacted to give effect to Article

21A. For the above reasons, since the Article 19(1)(g) right is

not an absolute right as Article 30(1), the 2009 Act cannot be

termed as unreasonable. To put an obligation on the unaided

non-minority school to admit 25% children in class I under
19

Section 12(1)(c) cannot be termed as an unreasonable

restriction. Such a law cannot be said to transgress any

constitutional limitation. The object of the 2009 Act is to

remove the barriers faced by a child who seeks admission to

class I and not to restrict the freedom under Article 19(1)(g).

The next question that arises for determination is whether

Section 12(1)(c) of the 2009 Act impedes the right of the non-

minority to establish and administer an unaided educational

institution? At the outset, it may be noted that Article 19(6)

is a saving and enabling provision in the Constitution as it

empowers the Parliament to make a law imposing reasonable

restriction on the Article 19(1)(g) right to establish and

administer an educational institution while Article 21A

empowers the Parliament to enact a law as to the manner in

which the State will discharge its obligation to provide for free

and compulsory education. If the Parliament enacts the law,

pursuant to Article 21A, enabling the State to access the

network (including infrastructure) of schools including

unaided non-minority schools would such a law be said to be

unconstitutional, not saved under Article 19(6)? Answer is in

the negative. Firstly, it must be noted that the expansive

provisions of the 2009 Act are intended not only to guarantee
20

the right to free and compulsory education to children, but to

set up an intrinsic regime of providing right to education to all

children by providing the required infrastructure and

compliance of norms and standards. Secondly, unlike other

fundamental rights, the right to education places a burden

not only on the State, but also on the parent/ guardian of

every child [Article 51A(k)]. The Constitution directs both

burdens to achieve one end: the compulsory education of

children free from the barriers of cost, parental obstruction or

State inaction. Thus, Articles 21A and 51A(k) balance the

relative burdens on the parents and the State. Thus, the

right to education envisages a reciprocal agreement between

the State and the parents and it places an affirmative burden

on all stakeholders in our civil society. Thirdly, right to

establish an educational institution has now been recognized

as a fundamental right within the meaning of Article 19(1)(g).

This view is enforced by the opinion of this Court in T.M.A.

Pai Foundation and P.A. Inamdar that all citizens have a

right to establish and administer educational institutions

under Articles 19(1)(g) and 26 but that right is subject to the

provisions of Articles 19(6) and 26(a). The constitutional

obligation of the State to provide for free and compulsory
21

education to the specified category of children is co-extensive

with the fundamental right guaranteed under Article 19(1)(g)

to establish an educational institution. Lastly, the

fundamental right to establish an educational institution

cannot be confused with the right to ask for recognition or

affiliation. The exercise of a fundamental right to establish

and administer an educational institution can be controlled in

a number of ways. Indeed, matters relating to the right to

grant of recognition and/ or affiliation are covered within the

realm of statutory right, which, however, will have to satisfy

the test of reasonable restrictions [see Article 19(6)]. Thus,

from the scheme of Article 21A and the 2009 Act, it is clear

that the primary obligation is of the State to provide for free

and compulsory education to children between the age of 6 to

14 years and, particularly, to children who are likely to be

prevented from pursuing and completing the elementary

education due to inability to afford fees or charges.

Correspondingly, every citizen has a right to establish and

administer educational institution under Article 19(1)(g) so

long as the activity remains charitable. Such an activity

undertaken by the private institutions supplements the

primary obligation of the State. Thus, the State can regulate
22

by law the activities of the private institutions by imposing

reasonable restrictions under Article 19(6). The 2009 Act not

only encompasses the aspects of right of children to free and

compulsory education but to carry out the provisions of the

2009 Act, it also deals with the matters pertaining to

establishment of school (s) as also grant of recognition (see

section 18). Thus, after the commencement of the 2009 Act,

the private management intending to establish the school has

to make an application to the appropriate authority and till

the certificate is granted by that authority, it cannot establish

or run the school. The matters relevant for the grant of

recognition are also provided for in Sections 19, 25 read with

the Schedule to the Act. Thus, after the commencement of

the 2009 Act, by virtue of Section 12(1)(c) read with Section

2(n)(iv), the State, while granting recognition to the private

unaided non-minority school, may specify permissible

percentage of the seats to be earmarked for children who may

not be in a position to pay their fees or charges. In T.M.A.

Pai Foundation, this Court vide para 53 has observed that

the State while prescribing qualifications for admission in a

private unaided institution may provide for condition of giving

admission to small percentage of students belonging to
23

weaker sections of the society by giving them freeships, if not

granted by the government. Applying the said law, such a

condition in Section 12(1)(c) imposed while granting

recognition to the private unaided non-minority school cannot

be termed as unreasonable. Such a condition would come

within the principle of reasonableness in Article 19(6).

Indeed, by virtue of Section 12(2) read with Section 2(n)(iv),

private unaided school would be entitled to be reimbursed

with the expenditure incurred by it in providing free and

compulsory education to children belonging to the above

category to the extent of per child expenditure incurred by the

State in a school specified in Section 2(n)(i) or the actual

amount charged from the child, whichever is less. Such a

restriction is in the interest of the general public. It is also a

reasonable restriction. Such measures address two aspects,

viz., upholding the fundamental right of the private

management to establish an unaided educational institution

of their choice and, at the same time, securing the interests of

the children in the locality, in particular, those who may not

be able to pursue education due to inability to pay fees or

charges of the private unaided schools. We also do not see

any merit in the contention that Section 12(1)(c) violates
24

Article 14. As stated, Section 12(1)(c) inter alia provides for

admission to class I, to the extent of 25% of the strength of

the class, of the children belonging to weaker section and

disadvantaged group in the neighbourhood and provide free

and compulsory elementary education to them till its

completion. The emphasis is on "free and compulsory

education". Earmarking of seats for children belonging to a

specified category who face financial barrier in the matter of

accessing education satisfies the test of classification in

Article 14. Further, Section 12(1)(c) provides for level playing

field in the matter of right to education to children who are

prevented from accessing education because they do not have

the means or their parents do not have the means to pay for

their fees. As stated above, education is an activity in which

we have several participants. There are number of

stakeholders including those who want to establish and

administer educational institutions as these supplement the

primary obligation of the State to provide for free and

compulsory education to the specified category of children.

Hence, Section 12(1)(c) also satisfies the test of

reasonableness, apart from the test of classification in Article

14.
25

11. The last question which we have to answer under this

head is whether Section 12(1)(c) runs counter to the

judgments of this Court in T.M.A. Pai Foundation and P.A.

Inamdar or principles laid down therein? According to the

petitioners, T.M.A. Pai Foundation defines various rights

and has held vide para 50 that right to establish and

administer broadly comprises the following:- (i) right to admit

students (ii) right to set up a reasonable fee structure etc. (the

rest are not important for discussion under this Head). That,

T.M.A. Pai Foundation lays down the essence and structure

of rights in Article 19(1)(g) insofar as they relate to

educational institutions in compliance with (a) the Charity

Principle (b) the Autonomy Principle (c) the Voluntariness

Principle (d) Anti-nationalisation (e) Co-optation Principle.

In support, reliance is placed by the petitioners on number of

paras from the above two judgments. At the outset, we may

reiterate that Article 21A of the Constitution provides that the

State shall provide free and compulsory education to all

children of the specified age in such manner as the State

may, by law, determine. Thus, the primary obligation to

provide free and compulsory education to all children of the

specified age is on the State. However, the manner in which
26

this obligation will be discharged by the State has been left to

the State to determine by law. The State may do so through

its own schools or through aided schools or through private

schools, so long as the law made in this regard does not

transgress any other constitutional limitation. This is because

Article 21A vests the power in the State to decide the manner

in which it will provide free and compulsory education to the

specified category of children. As stated, the 2009 Act has

been enacted pursuant to Article 21A. In this case, we are

concerned with the interplay of Article 21, Article 21A, on the

one hand, and the right to establish and administer

educational institution under Article 19(1)(g) read with Article

19(6). That was not the issue in T.M.A. Pai Foundation nor

in P.A. Inamdar. In this case, we are concerned with the

validity of Section 12(1)(c) of the 2009 Act. Hence, we are

concerned with the validity of the law enacted pursuant to

Article 21A placing restrictions on the right to establish and

administer educational institutions (including schools) and

not the validity of the Scheme evolved in Unni Krishnan, J.P.

v. State of Andhra Pradesh [(1993) 1 SCC 645]. The above

judgments in T.M.A. Pai Foundation and P.A. Inamdar were

not concerned with interpretation of Article 21A and the 2009
27

Act. It is true that the above two judgments have held that all

citizens have a right to establish and administer educational

institutions under Article 19(1)(g), however, the question as to

whether the provisions of the 2009 Act constituted a

restriction on that right and if so whether that restriction was

a reasonable restriction under Article 19(6) was not in issue.

Moreover, the controversy in T.M.A. Pai Foundation arose in

the light of the scheme framed in Unni Krishnan's case and

the judgment in P.A. Inamdar was almost a sequel to the

directions in Islamic Academy of Education v. State of

Karnataka [(2003) 6 SCC 697] in which the entire focus was

Institution centric and not child centric and that too in the

context of higher education and professional education where

the level of merit and excellence have to be given a different

weightage than the one we have to give in the case of

Universal Elementary Education for strengthening social

fabric of democracy through provision of equal opportunities

to all and for children of weaker section and disadvantaged

group who seek admission not to higher education or

professional courses but to Class I. In this connection, the

relevant paras from T.M.A. Pai Foundation make the

position clear. They are paras 37, 39, 40, 42, 45, 48, 49 and
28

50 (read together), 51, 53, 56, 58 - 61, 62, 67, 68, 70 etc.,

similarly, paras 26, 35, 104, 146 of P.A. Inamdar. We quote

the relevant para in support of what we have stated above:

T.M.A. Pai Foundation

Para 48 read with para 50

48. Private education is one of the most dynamic
and fastest-growing segments of post-secondary
education at the turn of the twenty-first century. A
combination of unprecedented demand for access to
higher education and the inability or unwillingness of
the Government to provide the necessary support
has brought private higher education to the forefront.
Private institutions, with a long history in many
countries, are expanding in scope and number, and
are becoming increasingly important in parts of the
world that relied almost entirely on the public sector.

50. The right to establish and administer broadly
comprises the following rights:
(a) to admit students;
(b) to set up a reasonable fee structure;
(c) to constitute a governing body;
(d) to appoint staff (teaching and non-teaching);
and
(e) to take action if there is dereliction of duty on
the part of any employees.

58. For admission into any professional
institution, merit must play an important role. While
it may not be normally possible to judge the merit of
the applicant who seeks admission into a school,
while seeking admission to a professional institution
and to become a competent professional, it is
necessary that meritorious candidates are not
unfairly treated or put at a disadvantage by
preferences shown to less meritorious but more
influential applicants. Excellence in professional
29

education would require that greater emphasis be
laid on the merit of a student seeking admission.
Appropriate regulations for this purpose may be
made keeping in view the other observations made in
this judgment in the context of admissions to
unaided institutions.

59. Merit is usually determined, for admission to
professional and higher education colleges, by either
the marks that the student obtains at the qualifying
examination or school-leaving certificate stage
followed by the interview, or by a common entrance
test conducted by the institution, or in the case of
professional colleges, by government agencies.
60. Education is taught at different levels, from
primary to professional. It is, therefore, obvious that
government regulations for all levels or types of
educational institutions cannot be identical; so also,
the extent of control or regulation could be greater
vis-a-vis aided institutions.
61. In the case of unaided private schools,
maximum autonomy has to be with the management
with regard to administration, including the right of
appointment, disciplinary powers, admission of
students and the fees to be charged. At the school
level, it is not possible to grant admissions on the
basis of merit. It is no secret that the examination
results at all levels of unaided private schools,
notwithstanding the stringent regulations of the
governmental authorities, are far superior to the
results of the government-maintained schools. There
is no compulsion on students to attend private
schools. The rush for admission is occasioned by the
standards maintained in such schools, and
recognition of the fact that State-run schools do not
provide the same standards of education. The State
says that it has no funds to establish institutions at
the same level of excellence as private schools. But
by curtailing the income of such private schools, it
disables those schools from affording the best
facilities because of a lack of funds. If this lowering of
standards from excellence to a level of mediocrity is
to be avoided, the State has to provide the difference
30

which, therefore, brings us back in a vicious circle to
the original problem viz. the lack of State funds. The
solution would appear to lie in the States not using
their scanty resources to prop up institutions that
are able to otherwise maintain themselves out of the
fees charged, but in improving the facilities and
infrastructure of State-run schools and in
subsidizing the fees payable by the students there. It
is in the interest of the general public that more good
quality schools are established; autonomy and non-
regulation of the school administration in the right of
appointment, admission of the students and the fee
to be charged will ensure that more such institutions
are established. The fear that if a private school is
allowed to charge fees commensurate with the fees
affordable, the degrees would be "purchasable" is an
unfounded one since the standards of education can
be and are controllable through the regulations
relating to recognition, affiliation and common final
examinations.

P.A. Inamdar

26. These matters have been directed to be placed
for hearing before a Bench of seven Judges under
orders of the Chief Justice of India pursuant to the
order dated 15-7-2004 in P.A. Inamdar v. State of
Maharashtra and order dated 29-7-2004 in
Pushpagiri Medical Society v. State of Kerala. The
aggrieved persons before us are again classifiable in
one class, that is, unaided minority and non-
minority institutions imparting professional
education. The issues arising for decision before us
are only three:
(i) the fixation of "quota" of
admissions/students in respect of unaided
professional institutions;
(ii) the holding of examinations for admissions
to such colleges, that is, who will hold the
entrance tests; and
(iii) the fee structure.

104. Article 30(1) speaks of "educational
31

institutions" generally and so does Article 29(2).
These articles do not draw any distinction between
an educational institution dispensing theological
education or professional or non-professional
education. However, the terrain of thought as has
developed through successive judicial
pronouncements culminating in Pai Foundation is
that looking at the concept of education, in the
backdrop of the constitutional provisions,
professional educational institutions constitute a
class by themselves as distinguished from
educational institutions imparting non-professional
education. It is not necessary for us to go deep into
this aspect of the issue posed before us inasmuch as
Pai Foundation has clarified that merit and
excellence assume special significance in the context
of professional studies. Though merit and excellence
are not anathema to non-professional education, yet
at that level and due to the nature of education
which is more general, the need for merit and
excellence therein is not of the degree as is called for
in the context of professional education.

146. Non-minority unaided institutions can also
be subjected to similar restrictions which are found
reasonable and in the interest of the student
community. Professional education should be made
accessible on the criterion of merit and on non-
exploitative terms to all eligible students on a
uniform basis. Minorities or non-minorities, in
exercise of their educational rights in the field of
professional education have an obligation and a duty
to maintain requisite standards of professional
education by giving admissions based on merit and
making education equally accessible to eligible
students through a fair and transparent admission
procedure and based on a reasonable fee structure.

12. P.A. Inamdar holds that right to establish and

administer educational institution falls in Article 19(1)(g). It
32

further holds that seat-sharing, reservation of seats, fixing of

quotas, fee fixation, cross-subsidization, etc. imposed by

judge-made scheme in professional/ higher education is an

unreasonable restriction applying the principles of

Voluntariness, Autonomy, Co-optation and Anti-

nationalisation, and, lastly, it deals with inter-relationship of

Articles 19(1)(g), 29(2) and 30(1) in the context of the minority

and non-minority's right to establish and administer

educational institutions. The point here is how does one read

the above principles of Autonomy, Voluntariness, Co-optation

and Anti-nationalisation of seats. On reading T.M.A. Pai

Foundation and P.A. Inamdar in proper perspective, it

becomes clear that the said principles have been applied in

the context of professional/ higher education where merit and

excellence have to be given due weightage and which tests do

not apply in cases where a child seeks admission to class I

and when the impugned Section 12(1)(c) seeks to remove the

financial obstacle. Thus, if one reads the 2009 Act including

Section 12(1)(c) in its application to unaided non-minority

school(s), the same is saved as reasonable restriction under

Article 19(6).
33

13. However, we want the Government to clarify the position

on one aspect. There are boarding schools and orphanages in

several parts of India. In those institutions, there are day

scholars and boarders. The 2009 Act could only apply to day

scholars. It cannot be extended to boarders. To put the

matter beyond doubt, we recommend that appropriate

guidelines be issued under Section 35 of the 2009 Act

clarifying the above position.

Validity and applicability of the 2009 Act qua unaided
minority schools

14. The inspiring preamble to our Constitution shows that

one of the cherished objects of our Constitution is to assure

to all its citizens the liberty of thought, expression, belief,

faith and worship. To implement and fortify these purposes,

Part III has provided certain fundamental rights including

Article 26 of the Constitution which guarantees the right of

every religious denomination or a section thereof, to establish

and maintain institutions for religious and charitable

purposes; to manage its affairs in matters of religion; to

acquire property and to administer it in accordance with law.

Articles 29 and 30 confer certain educational and cultural

rights as fundamental rights.
34

15. Article 29(1) confers on any section of the citizens a right

to conserve its own language, script or culture by and

through educational institutions and makes it obvious that a

minority could conserve its language, script or culture and,

therefore, the right to establish institutions of its choice is a

necessary concomitant to the right to conserve its distinctive

language, script or culture and that right is conferred on all

minorities by Article 30(1). That right, however, is subject to

the right conferred by Article 29(2).

16. Article 30(1) gives the minorities two rights: (a) to

establish and (b) to administer educational institutions of

their choice. The real import of Article 29(2) and Article 30(1)

is that they contemplate a minority institution with a sprinkle

of outsiders admitted into it. By admitting a non-member

into it the minority institution does not shed its character and

cease to be a minority institution.

17. The key to Article 30(1) lies in the words "of their choice".

18. The right established by Article 30(1) is a fundamental

right declared in terms absolute unlike the freedoms

guaranteed by Article 19 which is subject to reasonable

restrictions. Article 30(1) is intended to be a real right for the
35

protection of the minorities in the matter of setting up

educational institutions of their own choice. However,

regulations may lawfully be imposed either by legislative or

executive action as a condition of receiving grant or of

recognition. However, such regulation must satisfy the test of

reasonableness and that such regulation should make the

educational institution an effective vehicle of education for

the minority community or for the persons who resort to it.

Applying the above test in the case of Rev. Sidhajbhai Sabhai

v. State of Bombay [1963] SCR 837, this Court held the rule

authorizing reservation of seats and the threat of withdrawal

of recognition under the impugned rule to be violative of

Article 30(1).

19. The above well-settled principles have to be seen in the

context of the 2009 Act enacted to implement Article 21A of

the Constitution. At the very outset, the question that arises

for determination is what was the intention of the

Parliament? Is the 2009 Act intended to apply to unaided

minority schools? In answer to the above question, it is

important to note that in the case of P.A. Inamdar, this Court

held that there shall be no reservations in private unaided
36

colleges and that in that regard there shall be no difference

between the minority and non-minority institutions.

However, by the Constitution (Ninety-third Amendment) Act,

2005, Article 15 is amended. It is given Article 15(5). The

result is that P.A. Inamdar has been overruled on two

counts: (a) whereas this Court in P.A. Inamdar had stated

that there shall be no reservation in private unaided colleges,

the Amendment decreed that there shall be reservations; (b)

whereas this Court in P.A. Inamdar had said that there shall

be no difference between the unaided minority and non-

minority institutions, the Amendment decreed that there shall

be a difference. Article 15(5) is an enabling provision and it

is for the respective States either to enact a legislation or

issue an executive instruction providing for reservation except

in the case of minority educational institutions referred to in

Article 30(1). The intention of the Parliament is that the

minority educational institution referred to in Article 30(1) is

a separate category of institutions which needs protection of

Article 30(1) and viewed in that light we are of the view that

unaided minority school(s) needs special protection under

Article 30(1). Article 30(1) is not conditional as Article 19(1)(g).

In a sense, it is absolute as the Constitution framers thought
37

that it was the duty of the Government of the day to protect

the minorities in the matter of preservation of culture,

language and script via establishment of educational

institutions for religious and charitable purposes [See: Article

26]. Reservations of 25% in such unaided minority schools

result in changing the character of the schools if right to

establish and administer such schools flows from the right to

conserve the language, script or culture, which right is

conferred on such unaided minority schools. Thus, the 2009

Act including Section 12(1)(c) violates the right conferred on

such unaided minority schools under Article 30(1). However,

when we come to aided minority schools we have to keep in

mind Article 29(2). As stated, Article 30(1) is subject to Article

29(2). The said Article confers right of admission upon every

citizen into a State-aided educational institution. Article

29(2) refers to an individual right. It is not a class right. It

applies when an individual is denied admission into an

educational institution maintained or aided by the State. The

2009 Act is enacted to remove barriers such as financial

barriers which restrict his/her access to education. It is

enacted pursuant to Article 21A. Applying the above tests, we

hold that the 2009 Act is constitutionally valid qua aided
38

minority schools.

Conclusion (according to majority):

20. Accordingly, we hold that the Right of Children to Free

and Compulsory Education Act, 2009 is constitutionally valid

and shall apply to the following:

(i) a school established, owned or controlled by the

appropriate Government or a local authority;

(ii) an aided school including aided minority school(s)

receiving aid or grants to meet whole or part of its

expenses from the appropriate Government or the local

authority;

(iii) a school belonging to specified category; and

(iv) an unaided non-minority school not receiving any kind

of aid or grants to meet its expenses from the

appropriate Government or the local authority.

However, the said 2009 Act and in particular Sections

12(1)(c) and 18(3) infringes the fundamental freedom

guaranteed to unaided minority schools under Article 30(1)

and, consequently, applying the R.M.D. Chamarbaugwalla v.

Union of India [1957 SCR 930] principle of severability, the
39

said 2009 Act shall not apply to such schools.

21. This judgment will operate from today. In other words,

this will apply from the academic year 2012-13. However,

admissions given by unaided minority schools prior to the

pronouncement of this judgment shall not be reopened.

22. Subject to what is stated above, the writ petitions are

disposed of with no order as to costs.

.......................................CJI
(S. H. Kapadia)

.........................................J.
(Swatanter Kumar)

New Delhi;
April 12, 2012
40

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.95 OF 2010

SOCIETY FOR UN-AIDED
P.SCHOOL OF RAJASTHAN ...Petitioner(s)

Versus

U.O.I. & ANR. ..Respondent(s)

WITH

W.P. (C) NOs.98/2010, 126/2010, 137/2010, 228/2010,
269/2010, 310/2010, 364/2010, 384/2010, 22/2011,
24/2011, 21/2011, 47/2011, 59/2011, 50/2011, 83/2011,
88/2011, 99/2011, 102/2011, 104/2011, 86/2011,
101/2011, 115/2011, 154/2011, 126/2011, 118/2011,
186/2011, 148/2011, 176/2011, 205/2011, 238/2011 and
239/2011

JUDGMENT

K. S. Radhakrishnan, J.

We are, in these cases, concerned with the

constitutional validity of the Right of Children to Free and

Compulsory Education Act 2009 (35 of 2009) [in short, the
41

Act], which was enacted following the insertion of Article 21A

by the Constitution (Eighty-sixth Amendment) Act, 2002.

Article 21A provides for free and compulsory education to all

children of the age 6 to 14 years and also casts an obligation

on the State to provide and ensure admission, attendance

and completion of elementary education in such a manner

that the State may by law determine. The Act is, therefore,

enacted to provide for free and compulsory education to all

children of the age 6 to 14 years and is anchored in the belief

that the values of equality, social justice and democracy and

the creation of just and humane society can be achieved only

through a provision of inclusive elementary education to all

the children. Provision of free and compulsory education of

satisfactory quality to the children from disadvantaged

groups and weaker sections, it was pointed out, is not merely

the responsibility of the schools run or supported by the

appropriate government, but also of schools which are not

dependant on government funds.

2. Petitioners in all these cases, it may be mentioned, have

wholeheartedly welcomed the introduction of Article 21A in

the Constitution and acknowledged it as a revolutionary step
42

providing universal elementary education for all the children.

Controversy in all these cases is not with regard to the

validity of Article 21A, but mainly centers around its

interpretation and the validity of Sections 3, 12(1)(b) and

12(1)(c) and some other related provisions of the Act, which

cast obligation on all elementary educational institutions to

admit children of the age 6 to 14 years from their

neighbourhood, on the principle of social inclusiveness.

Petitioners also challenge certain other provisions purported

to interfere with the administration, management and

functioning of those institutions. I have dealt with all those

issues in Parts I to V of my judgment and my conclusions are

in Part VI.

3. Part I of the judgment deals with the circumstances and

background for the introduction of Article 21A and its scope

and object and the interpretation given by the Constitution

Benches of this Court on right to education. Part II of the

judgment deals with various socio-economic rights recognized

by our Constitution and the impact on other fundamental

rights guaranteed to others and the measures adopted by the

Parliament to remove the obstacles for realization of those
43

rights, in cases where there is conflict. In Part III of the

judgment, I have dealt with the obligations and

responsibilities of the non-state actors in realization of

children's rights guaranteed under Article 21A and the Act.

In Part IV, I have dealt with the constitutional validity of

Section 12(1)(b), 12(1)(c) of the Act and in Part V, I have dealt

with the challenge against other provisions of the Act and my

conclusions are in Part VI.

4. Senior lawyers Shri Rajeev Dhavan, Shri T.R.

Andhyarujina, Shri Ashok H. Desai, Shri Harish S. Salve,

Shri N. Chandrasekharan, Shri K. Parasaran, Shri Chander

Uday Singh, Shri Shekhar Naphade, Shri Vikas Singh, Shri

Arvind P. Dattar and large number of other counsel also

presented their arguments and rendered valuable assistance

to the Court. Shri Goolam E. Vahanvati, learned Attorney

General and Mrs. Indira Jaising, learned Additional Solicitor

General appeared for the Union of India.

PART I

5. In Mohini Jain v. State of Karnataka and others

[(1992) 3 SCC 666], this Court held that the right to
44

education is a fundamental right guaranteed under Article 21

of the Constitution and that dignity of individuals cannot be

assured unless accompanied by right to education and that

charging of capitation fee for admission to educational

institutions would amount to denial of citizens' right to

education and is violative of Article 14 of the Constitution.

The ratio laid down in Mohini Jain was questioned in Unni

Krishnan, J.P. and Others v. State of A.P. and Others

[(1993) 1 SCC 645] contending that if the judgment in

Mohini Jain was given effect to, many of the private

educational institutions would have to be closed down.

Mohini Jain was affirmed in Unni Krishnan to the extent of

holding that the right to education flows from Article 21 of the

Constitution and charging of capitation fee was illegal. The

Court partly overruled Mohini Jain and held that the right to

free education is available only to children until they

complete the age of 14 years and after that obligation of the

State to provide education would be subject to the limits of its

economic capacity and development. Private unaided

recognized/affiliated educational institutions running

professional courses were held entitled to charge the fee

higher than that charged by government institutions for
45

similar courses but that such a fee should not exceed the

maximum limit fixed by the State. The Court also formulated

a scheme and directed every authority to impose that scheme

upon institutions seeking recognition/affiliation, even if they

are unaided institutions. Unni Krishnan introduced the

concept of "free seats" and "payment seats" and ordered that

private unaided educational institutions should not add any

further conditions and were held bound by the scheme. Unni

Krishnan also recognized the right to education as a

fundamental right guaranteed under Article 21 of the

Constitution and held that the right is available to children

until they complete the age of 14 years.

6. The Department of Education, Ministry of Human

Resources Development, Government of India after the

judgment in Unni Krishnan made a proposal to amend the

Constitution to make the right to education a fundamental

right for children up to the age of 14 years and also a

fundamental duty of citizens of India so as to achieve the goal

of universal elementary education. The Department also

drafted a Bill [Constitution (Eighty-third Amendment) Bill,

1997] so as to insert a new Article 21A in the Constitution
46

which read as follows:

"21A. Right to education.

21A(1) The State shall provide free and
compulsory education to all citizens of the age of six
to fourteen years.

Clause(2) The Right to Free and Compulsory
Education referred to in clause (1) shall be enforced
in such manner as the State may, by law,
determine.

Clause (3) The State shall not make any law, for
free and compulsory education under Clause(2), in
relation to the educational institutions not
maintained by the State or not receiving aid out of
State funds."

7. The draft Bill was presented before the Chairman, Rajya

Sabha on 28.07.1997, who referred the Bill to a Committee

for examination and report. The Committee called for

suggestions/views from individuals, organisations,

institutions etc. and ultimately submitted its report on

4.11.1997. The Committee in its Report referred to the

written note received from the Department of Education and

stated as follows:

"Department in its written note stated that the
Supreme Court in its judgment in Unni Krishnan
J.P. v. Andhra Pradesh, has held that children of
this country have a Fundamental Right to free
education until they complete the age of 14 years.
47

This right flows from Article 21 relating to personal
liberty and its content, parameters have to be
determined in the light of Article 41 which provides
for right to work, to education and to public
assistance in certain cases and Article 45 which
provides for free and compulsory education to
children up to the age of 14 years. The apex Court
has observed that the obligations created by these
Articles of the Constitution can be discharged by
the State either by establishing institutions of its
own or by aiding recognising and granting affiliation
to educational institutions. On clause (3) of the
proposed Article 21, the report stated as follows:

"11. Clause (3) of the proposed Article 21
provides that the State shall not make any law
for free and compulsory education under clause
(2), in relation to the educational institutions
not maintained by the State or not receiving aid
out of State funds. However, strong
apprehensions were voiced about clause (3) of
the proposed new Article 21A. Many of the
people in the written memoranda and also
educational experts in the oral evidence have
expressed displeasure over keeping the private
educational institutions outside the purview of
the fundamental right to be given to the
children. The Secretary stated that the
Supreme Court in the Unni Krishnan judgment
said that wherever the State is not providing
any aid to any institution, such an institution
need not provide free education. The
Department took into account the Supreme
Court judgment in the Unni Krishnan case
which laid down that no private institution, can
be compelled to provide free services. Therefore,
they provided in the Constitutional amendment
that this concept of free education need not be
extended to schools or institutions which are
not aided by the Government, the Secretary
added. He, however, stated that there was no
intention, to exclude them from the overall
responsibility to provide education."
48

8. The Committee specifically referred to the judgment in

Unni Krishnan in paragraph 15.14 of the Report. Reference

was also made to the dissenting note of one of the members.

Relevant portion of the report is extracted below:

"15.14. Clause (3) of the proposed Article 21(A)
prohibits the State from making any law for free
and compulsory education in relation to educational
institutions not maintained by the State or not
receiving aid out of State funds. This issue was
discussed by the Members of the Committee at
length. The members were in agreement that even
though the so called private institutions do not
receive any financial aid, the children studying in
those institutions should not be deprived of their
fundamental right. As regards the interpretation as
to whether the private institutions should provide
free education or not, the Committee is aware of the
Supreme Court judgment given in the Unni
Krishnan case. This judgment provides the rule for
application and interpretation. In view of the
judgment, it is not necessary to make a clause in
the Constitution. It would be appropriate to leave
the interpretation to the courts instead of making a
specific provision in black and white. Some
members, however, felt that the private institutions
which do not get any financial aid, provide quality
education. Therefore, it would be inappropriate to
bring such institutions under the purview of free
education. Those members, accordingly, felt that
clause (3) should not be deleted.

15.15. The Committee, however, after a
thorough discussion feels that this provision need
not be there. The Committee recommends that
clause (3) of the proposed Article 21(A) may be
deleted. Smt. Hedwig Michael Rego, M.P. a Member
of the Committee gave a Minute of Dissent. It is
appended to the report.
49

15.16. The Committee recommends that the
Bill be passed subject to the recommendations
made in the preceding paragraphs.

MINUTES OF DISSENT
I vehemently oppose the State wanting to
introduce free and compulsory education in private,
unaided schools.

Clause 21A (3) must be inserted as I do not
wish the State to make laws regarding free and
compulsory education in relation to educational
institutions not maintained by the State or not
receiving aid out of State funds.

A Committee of State Education Ministers
have already considered the issue in view of the
Unni Krishnan case, and found it not feasible to
bring unaided private educational institutions
within the purview of the Bill.

Hence, I state once again that the proposed
clause "21A(3") must be inserted in the Bill.

Yours sincerely,
Sd/'
(SMT. HEDWIG MICHAEL REGO)"
(emphasis supplied)

9. Report referred to above was adopted by the

Parliamentary Standing Committee on Human Resource

Development and submitted the same to the Rajya Sabha on

24.11.1997 and also laid on the Table of the Lok Sabha on

24.11.1997. The Lok Sabha was however dissolved soon

thereafter and elections were declared and that Bill was not
50

further pursued.

10. The Chairman of the Law Commission who authored

Unni Krishnan judgment took up the issue suo moto.

Following the ratio in Unni Krishnan, the Law Commission

submitted its 165th Report to the Ministry of Law, Justice and

Company Affairs, Union of India vide letter dated 19.11.1998.

Law Commission in that letter stated as follows: "Law

Commission had taken up the aforesaid subject suo moto

having regard to the Directive Principle of the Constitution of

India as well as the decision of the Supreme Court of India."

11. Referring to the Constitution (Eighty-third Amendment)

Bill, 1997, Law Commission in its report in paragraph 6.1.4

stated as under:

"6.1.4 (page 165.35): The Department of
Education may perhaps be right in saying that as
of today the private educational institutions which
are not in receipt of any grant or aid from the State,
cannot be placed under an obligation to impart free
education to all the students admitted into their
institutions. However, applying the ratio of
Unnikrishnan case, it is perfectly legitimate for the
State or the affiliating Board, as the case may be, to
require the institution to admit and impart free
education to fifty per cent of the students as a
condition for affiliation or for permitting their
students to appear for the Government/Board
examination. To start with, the percentage can be
51

prescribed as twenty. Accordingly, twenty per cent
students could be selected by the concerned
institution in consultation with the local authorities
and the parent-teacher association. This proposal
would enable the unaided institutions to join the
national endeavour to provide education to the
children of India and to that extent will also help
reduce the financial burden upon the State."
(emphasis supplied)

12. The Law Commission which had initiated the

proceedings suo moto in the light of Unni Krishnan

suggested deletion of clause (3) from Article 21A

stating as follows: "So far as clause (3) is

concerned, the Law Commission states that it

should be totally recast on the light of the basic

premise of the decision in Unni Kirshnan which

has been referred to hereinabove. It would neither

be advisable nor desirable that the unaided

educational institutions are kept outside the

proposed Article altogether while the sole primary

obligation to provide education is upon the State,

the educational institutions, whether aided or

unaided supplement this effort."

Para 6.6.2 of the report reads as under:

"6.6.2. The unaided institutions should be made
aware that recognition, affiliation or permission to
52

send their children to appear for the
Government/Board examination also casts a
corresponding social obligation upon them towards
the society. The recognition/affiliation/permission
aforesaid is meant to enable them to supplement
the effort of the State and not to enable them to
make money. Since they exist and function
effectively because of such
recognition/affiliation/permission granted by public
authorities, they must and are bound to serve the
public interest. For this reason, the unaided
educational institutions must be made to impart
free education to 50% of the students admitted to
their institutions. This principle has already been
applied to medical, engineering and other colleges
imparting professional education and there is no
reason why the schools imparting
primary/elementary education should not be placed
under the same obligation. Clause (3) of proposed
Article 21A may accordingly be recast to give effect
to the above concept and obligation."

Reference may also be made to the following paragraphs

of the Report:

"6.8. The aforesaid bill was referred by the
Chairman, Rajya Sabha to the Department-Related
Parliamentary Standing Committee on Human
Resources Development. A press communiqué
inviting suggestions/views was issued on 18 th
August, 1997. The Committee considered the Bill in
four sittings and heard oral evidence. It adopted the
draft report at its meeting held on 4 th November,
1997. The report was then presented to the Rajya
Sabha on 24th November, 1997 and laid on the table
of the Lok Sabha on the same day. Unfortunately,
the Lok Sabha was dissolved soon thereafter and
elections were called.

6.8.1. The Budget Session after the new Lok
Sabha was constituted is over. There is, however,
53

no indication whether the Government is inclined to
pursue the pending bill.

6.9. The question is debatable whether it is at all
necessary to amend the Constitution when there is
an explicit recognition of the right to education till
the age of fourteen years by the Supreme Court in
Unni Krishnan's case. As the said judgment can be
overruled by a larger Bench in another case, thus
making this right to education vulnerable, it would
appear advisable to give this right constitutional
sanctity."

13. Law Commission was giving effect to the ratio of Unni

Krishnan and made suggestions to bring in Article 21A

mainly on the basis of the scheme framed in Unni Krishnan

providing "free seats" in private educational institutions.

14. The Law Commission report, report of the

Parliamentary Standing Committee, judgment in Unni

Krishnan etc. were the basis on which the Constitution

(Ninety-third Amendment) Bill, 2001 was prepared and

presented. Statement of objects and reasons of the Bill given

below would indicate that fact:

"2. With a view to making right to education free
and compulsory education a fundamental right, the
Constitution (Eighty-third Amendment ) Bill, 1997
was introduced in the Parliament to insert a new
article, namely, Article 21A conferring on all
children in the age group of 6 to14 years the right to
free and compulsory education. The said Bill was
54

scrutinized by the Parliamentary Standing
Committee on Human Resource Development and
the subject was also dealt with in its 165 th Report by
the Law Commission of India.

3. After taking into consideration the report of the
Law Commission of India and the recommendations
of the Standing Committee of Parliament, the
proposed amendments in Part III, Part IV and Part
IVA of the Constitution are being made which are as
follows:

(a) to provide for free and compulsory education to
children in the age group of 6 to 14 years and for
this purpose, a legislation would be introduced in
parliament after the Constitution (Ninety-third
Amendment) Bill, 2001 is enacted;

(b) to provide in article 45 of the Constitution that
the State shall endeavour to provide early childhood
care and education to children below the age of six
years; and

(c) to amend article 51A of the Constitution with a
view to providing that it shall be the obligation of
the parents to provide opportunities for education to
their children.

4. The Bill seeks to achieve the above objects."

15. The above Bill was passed and received the assent of
the President on 12.12.2002 and was published in the
Gazette of India on 13.12.2002 and the following provisions
were inserted in the Constitution; by the Constitution
(Eighty-sixth Amendment) Act, 2002.

Part III Fundamental Rights
55

"21A. Right to Education. The State shall
provide free and compulsory education to all
children of the age of six to fourteen years in such
manner as the State may, by law, determine.

Part IV Directive Principles of State Policy

45. Provision for early childhood care and
education to children below the age of six
years. The State shall endeavour to provide early
childhood care and education for all children until
they complete the age of six years.

Part IVA Fundamental Duties

51A. Fundamental duties - It shall be the duty of
every citizen of India

xxx xxx xxx

(k) who is a parent or guardian to provide
opportunities for education to his child or, as the
case may be, ward between the age of six and
fourteen years."

16. Reference was earlier made to the Parliamentary

Standing Committee Report, 165th Law Commission Report,

1998 and the opinion expressed by the Department of

Education so as to understand the background of the

introduction of Article 21A which is also necessary to properly

understand the scope of the Act. In Herron v. Rathmines

and Rathgar Improvement Commissioners [1892] AC 498

at p. 502, the Court held that the subject-matter with which

the Legislature was dealing, and the facts existing at the time
56

with respect to which the Legislature was legislating are

legitimate topics to consider in ascertaining what was the

object and purpose of the Legislature in passing the Act. In

Mithilesh Kumari and Another v. Prem Behari Khare

[(1989) 2 SCC 95], this Court observed that "where a

particular enactment or amendment is the result of

recommendation of the Law Commission of India, it may be

permissible to refer to the relevant report." (See also Dr.

Baliram Waman Hiray v. Justice B. Lentin and Others

[(1988) 4 SCC 419], Santa Singh v. State of Punjab [(1976)

4 SCC 190], Ravinder Kumar Sharma v. State of Assam

[(1999) 7 SCC 435].

UNNI KRISHNAN:
17. Unni Krishnan had created mayhem and raised thorny

issues on which the Law Commission had built up its edifice,

suo moto. The Law Commission had acknowledged the fact

that but for the ratio in Unni Kirshnan the unaided private

educational institutions would have no obligation to impart

free and compulsory education to the children admitted in

their institutions. Law Commission was also of the view that

the ratio in Unni Krishnan had legitimized the State or the

affiliating Board to require unaided educational institutions to
57

provide free education, as a condition for affiliation or for

permitting the students to appear for the Government/Board

examination.

18. Unni Krishnan was questioned contending that it had

imposed unreasonable restrictions under Article 19(6) of the

Constitution on the administration of the private educational

institutions and that the rights of minority communities

guaranteed under Article 29 and Article 30 were eroded.

Unni Krishnan scheme which insisted that private unaided

educational institutions should provide for "free seats" as a

condition for recognition or affiliation was also questioned

contending that the same would amount to nationalisation of

seats.

PAI FOUNDATION
19. T.M.A. Pai Foundation and others v. State of

Karnataka and others [(2002) 8 SCC 481] examined the

correctness of the ratio laid down in Unni Krishnan and also

the validity of the scheme. The correctness of the rigid

percentage of reservation laid down in St. Stephen's College

v. University of Delhi [(1992) 1 SCC 558] in the case of
58

minority aided educational institutions and the meaning and

contents of Articles 30 and 29(2) were also examined.

20. Pai Foundation acknowledged the right of all citizens

to practice any profession, trade or business under Article

19(1)(g) and Article 26 and held those rights would be subject

to the provisions that were placed under Article 19(6) and

26(a) and the rights of minority to establish and administer

educational institutions under Article 30 was also upheld.

21. Unni Krishnan scheme was held unconstitutional, but

it was ordered that there should be no capitation fee or

profiteering and reasonable surplus to meet the cost of

expansion and augmentation of facilities would not mean

profiteering. Further, it was also ordered that the expression

"education" in all the Articles of the Constitution would mean

and include education at all levels, from primary education

level up to post graduate level and the expression

"educational institutions" would mean institutions that

impart education as understood in the Constitution.

22. Pai Foundation has also recognised that the

expression "occupation" in Article 19(1)(g) is an activity of a

person undertaken as a means of livelihood or a mission in

life and hence charitable in nature and that establishing and
59

running an educational institution is an occupation, and in

that process a reasonable revenue surplus can be generated

for the purpose of development of education and expansion of

the institutions. The right to establish and administer

educational institutions, according to Pai Foundation,

comprises right to admit students, set up a reasonable fee

structure, constitute a governing body, appoint staff, teaching

and non-teaching and to take disciplinary action. So far as

private unaided educational institutions are concerned, the

Court held that maximum autonomy has to be with the

management with regard to administration, including the

right of appointment, disciplinary powers, admission of

students and the fee to be charged etc. and that the authority

granting recognition or affiliation can certainly lay down

conditions for the grant of recognition or affiliation but those

conditions must pertain broadly to academic and educational

matters and welfare of students and teachers. The Court held

that the right to establish an educational institution can be

regulated but such regulatory measures must be in general to

ensure proper academic standards, atmosphere and

infrastructure and prevention of maladministration. The

necessity of starting more quality private unaided educational
60

institutions in the interest of general public was also

emphasised by the Court by ensuring autonomy and non-

regulation in the school administration, admission of

students and fee to be charged. Pai Foundation rejected the

view that if a private school is allowed to charge fee

commensurate with the fee affordable, the degrees would be

purchasable as unfounded since the standards of education

can be and are controllable through recognition, affiliation

and common final examination. Casting burden on other

students to pay for the education of others was also

disapproved by Pai Foundation holding that there should be

no cross-subsidy.

23. Pai Foundation has also dealt with the case of private

aided professional institutions, minority and non-minority,

and also other aided institutions and stated that once aid is

granted to a private professional educational institution, the

government or the state agency, as a condition of the grant of

aid, can put fetters on the freedom in the matter of

administration and management of the institution. Pai

Foundation also acknowledged that there are large number

of educational institutions, like schools and non-professional

colleges, which cannot operate without the support of aid
61

from the state and the Government in such cases, would be

entitled to make regulations relating to the terms and

conditions of employment of the teaching and non-teaching

staff. In other words, autonomy in private aided institutions

would be less than that of unaided institutions.

24. Pai Foundation also acknowledged the rights of the

religious and linguistic minorities to establish and administer

educational institutions of their choice under Article 30(1) of

the Constitution and held that right is not absolute as to

prevent the government from making any regulation

whatsoever. The Court further held that as in the case of a

majority run institution, the moment a minority institution

obtains a grant or aid, Article 28 of the Constitution comes

into play.

25. Pai Foundation further held that the ratio laid down in

St. Stephen is not correct and held that even if it is possible

to fill up all the seats with students of the minority group, the

moment the institution is granted aid, the institution will

have to admit students of the non-minority group to a

reasonable extent, whereby the character of the institution is

not annihilated, and at the same time, the rights of the citizen

engrafted under Article 29(2) are not subverted. The judgment
62

in Pai Foundation was pronounced on 31.10.2002,

25.11.2002 and Article 21A, new Article 45 and Article 51A(k)

were inserted in the Constitution on 12.12.2002, but the

basis for the introduction of Article 21A and the deletion of

original clause (3) from Article 21A, was due to the judgment

of Unnikrishnan. Parliament, it may be noted, was

presumed to be aware of the judgment in Pai Foundation,

and hence, no obligation was cast on unaided private

educational institutions but only on the State, while inserting

Article 21A.

26. The judgment in Pai Foundation, after the

introduction of the above mentioned articles, was interpreted

by various Courts, State Governments, educational

institutions in different perspectives leading to the enactment

of various statutes and regulations as well, contrary to each

other. A Bench of five Judges was, therefore, constituted to

clarify certain doubts generated out of the judgment in Pai

Foundation and its application. Rights of unaided minority

and non-minority institutions and restrictions sought to be

imposed by the State upon them were the main issues before

the Court and not with regard to the rights and obligations of

private aided institutions run by minorities and non-
63

minorities. The five Judges' Bench rendered its judgment on

14.8.2003 titled Islamic Academy of Education and

another v. State of Karnataka and others [(2003) 6 SCC

697]. Unfortunately, Islamic Academy created more

problems and confusion than solutions and, in order to steer

clear from that predicament, a seven Judges Bench was

constituted and the following specific questions were referred

for its determination:

"(1) To what extent the State can regulate the
admissions made by unaided (minority or non-
minority) educational institutions? Can the State
enforce its policy of reservation and/or appropriate
to itself any quota in admissions to such
institutions?
(emphasis supplied)
(2) Whether unaided (minority and non-
minority) educational institutions are free to devise
their own admission procedure or whether direction
made in Islamic Academy for compulsorily holding
entrance test by the State or association of
institutions and to choose therefrom the students
entitled to admission in such institutions, can be
sustained in light of the law laid down in Pai
Foundation?
(3) Whether Islamic Academy could have
issued guidelines in the matter of regulating the fee
payable by the students to the educational
institutions?
(4) Can the admission procedure and fee
structure be regulated or taken over by the
Committees ordered to be constituted by Islamic
Academy?"
64

27. Above mentioned questions were answered in P.A.

Inamdar and others v. State of Maharashtra and others

[(2005) 6 SCC 537] and the Court cleared all confusion and

doubts, particularly insofar as unaided minority and non-

minority educational institutions are concerned.

28. Inamdar specifically examined the inter-relationship

between Articles 19(1)(g), 29(2) and 30(1) of the Constitution

and held that the right to establish an educational institution

(which evidently includes schools as well) for charity or a

profit, being an occupation, is protected by Article 19(1)(g)

with additional protection to minority communities under

Article 30(1). Inamdar, however, reiterated the fact that,

once aided, the autonomy conferred by protection of Article

30(1) is diluted, as the provisions of Articles 29(2) will be

attracted and certain conditions in the nature of regulations

can legitimately accompany the State aid. Reasonable

restrictions pointed out by Inamdar may be indicated on the

following subjects: (i) the professional or technical

qualifications necessary for practicing any profession or

carrying on any occupation, trade or business; (ii) the

carrying on by the State, or by a corporation owned or

controlled by the State of any trade, business, industry or
65

service whether to the exclusion, complete or partial of

citizens or otherwise.

29. Referring to the judgments in Kerala Education

Bill , In Re. 1959 SCR 995 and St. Stephen, the Court took

the view that once an educational institution is granted aid or

aspires for recognition, the State may grant aid or recognition

accompanied by certain restrictions or conditions which must

be followed as essential to the grant of such aid or

recognition. Inamdar, as I have already indicated, was

mainly concerned with the question whether the State can

appropriate the quota of unaided educational institutions

both minority and non-minority. Explaining Pai Foundation,

the Court in Inamdar held as follows:

"119. A minority educational institution may
choose not to take any aid from the State and may
also not seek any recognition or affiliation. It may be
imparting such instructions and may have students
learning such knowledge that do not stand in need
of any recognition. Such institutions would be those
where instructions are imparted for the sake of
instructions and learning is only for the sake of
learning and acquiring knowledge. Obviously, such
institutions would fall in the category of those who
would exercise their right under the protection and
privilege conferred by Article 30(1) "to their hearts'
content" unhampered by any restrictions excepting
those which are in national interest based on
considerations such as public safety, national
security and national integrity or are aimed at
66

preventing exploitation of students or the teaching
community. Such institutions cannot indulge in any
activity which is violative of any law of the land.

120. They are free to admit all students of their
own minority community if they so choose to do.
(Para 145, Pai Foundation)

(ii) Minority unaided educational
institutions asking for affiliation or
recognition

121. Affiliation or recognition by the State or
the Board or the university competent to do so,
cannot be denied solely on the ground that the
institution is a minority educational institution.
However, the urge or need for affiliation or
recognition brings in the concept of regulation by
way of laying down conditions consistent with the
requirement of ensuring merit, excellence of
education and preventing maladministration. For
example, provisions can be made indicating the
quality of the teachers by prescribing the minimum
qualifications that they must possess and the
courses of studies and curricula. The existence of
infrastructure sufficient for its growth can be
stipulated as a prerequisite to the grant of
recognition or affiliation. However, there cannot be
interference in the day-to-day administration. The
essential ingredients of the management, including
admission of students, recruiting of staff and the
quantum of fee to be charged, cannot be regulated.
(Para 55, Pai Foundation)

122. Apart from the generalised position of law
that the right to administer does not include the
right to maladminister, an additional source of
power to regulate by enacting conditions
accompanying affiliation or recognition exists. A
balance has to be struck between the two
objectives: (i) that of ensuring the standard of
67

excellence of the institution, and (ii) that of
preserving the right of the minority to establish and
administer its educational institution. Subject to a
reconciliation of the two objectives, any regulation
accompanying affiliation or recognition must satisfy
the triple tests: (i) the test of reasonableness and
rationality, (ii) the test that the regulation would be
conducive to making the institution an effective
vehicle of education for the minority community or
other persons who resort to it, and (iii) that there is
no inroad into the protection conferred by Article
30(1) of the Constitution, that is, by framing the
regulation the essential character of the institution
being a minority educational institution, is not
taken away. (Para 122, Pai Foundation)

(iii) Minority educational institutions
receiving State aid

123. Conditions which can normally be
permitted to be imposed on the educational
institutions receiving the grant must be related to
the proper utilisation of the grant and fulfilment of
the objectives of the grant without diluting the
minority status of the educational institution, as
held in Pai Foundation (see para 143 thereof). As
aided institutions are not before us and we are not
called upon to deal with their cases, we leave the
discussion at that only.

124. So far as appropriation of quota by the
State and enforcement of its reservation policy is
concerned, we do not see much of a difference
between non-minority and minority unaided
educational institutions. We find great force in the
submission made on behalf of the petitioners that
the States have no power to insist on seat-sharing
in unaided private professional educational
institutions by fixing a quota of seats between the
management and the State. The State cannot insist
on private educational institutions which receive no
aid from the State to implement the State's policy
68

on reservation for granting admission on lesser
percentage of marks i.e. on any criterion except
merit.

125. As per our understanding, neither in the
judgment of Pai Foundation nor in the Constitution
Bench decision in Kerala Education Bill which was
approved by Pai Foundation is there anything which
would allow the State to regulate or control
admissions in the unaided professional educational
institutions so as to compel them to give up a share
of the available seats to the candidates chosen by
the State, as if it was filling the seats available to be
filled up at its discretion in such private
institutions. This would amount to nationalisation
of seats which has been specifically disapproved in
Pai Foundation. Such imposition of quota of State
seats or enforcing reservation policy of the State on
available seats in unaided professional institutions
are acts constituting serious encroachment on the
right and autonomy of private professional
educational institutions. Such appropriation of
seats can also not be held to be a regulatory
measure in the interest of the minority within the
meaning of Article 30(1) or a reasonable restriction
within the meaning of Article 19(6) of the
Constitution. Merely because the resources of the
State in providing professional education are
limited, private educational institutions, which
intend to provide better professional education,
cannot be forced by the State to make admissions
available on the basis of reservation policy to less
meritorious candidates. Unaided institutions, as
they are not deriving any aid from State funds, can
have their own admissions if fair, transparent, non-
exploitative and based on merit." (emphasis
supplied)

Pai Foundation, it was pointed out by Inamdar, merely

permitted the unaided private institutions to maintain merit

as the criterion of admission by voluntarily agreeing for seat
69

sharing with the State or adopting selection based on

common entrance test of the State. Further, it was also

pointed that unaided educational institutions can frame their

own policy to give free-ships and scholarships to the needy

and poor students or adopt a policy in line with the

reservation policy of the state to cater to the educational

needs of weaker and poorer sections of the society not out of

compulsion, but on their own volition. Inamdar reiterated

that no where in Pai Foundation, either in the majority or in

the minority opinion, have they found any justification for

imposing seat sharing quota by the State on unaided private

professional educational institutions and reservation policy of

the State or State quota seats or management seats.

Further, it was pointed that the fixation of percentage of

quota is to be read and understood as possible consensual

arrangements which can be reached between unaided private

professional institutions and the State. State regulations, it

was pointed out, should be minimal and only with a view to

maintain fairness and transparency in admission procedure

and to check exploitation of the students by charging

exorbitant money or capitation fees. Inamdar, disapproved

the scheme evolved in Islamic Academy to the extent it
70

allowed States to fix quota for seat sharing between

management and the States on the basis of local needs of

each State, in the unaided private educational institutions of

both minority and non-minority categories. Inamdar held

that to admit students being one of the components of right

to establish and administer an institution, the State cannot

interfere therewith and upto the level of undergraduate

education, the minority unaided educational institutions

enjoy "total freedom". Inamdar emphasised the fact that

minority unaided institutions can legitimately claim

"unfettered fundamental right" to choose the students to be

allowed admissions and the procedure therefore subject to its

being fair, transparent and non-exploitative and the same

principle applies to non-minority unaided institutions as well.

Inamdar also found foul with the judgment in Islamic with

regard to the fixation of quota and for seat sharing between

the management and the State on the basis of local needs of

each State in unaided private educational institutions, both

minority and non-minority. Inamdar noticed that Pai

Foundation also found foul with the judgment in Unni

Krishnan and held that admission of students in unaided

minority educational institutions/schools where scope for
71

merit based is practically nil cannot be regulated by the State

or University except for providing the qualification and

minimum condition of eligibility in the interest of academic

standards.

30. Pai Foundation as well as Inamdar took the view

that laws of the land including rules and regulations must

apply equally to majority as well as minority institutions and

minority institutions must be allowed to do what majority

institutions are allowed to do. Pai Foundation examined

the expression "general laws of the land" in juxtaposition

with "national interest" and stated in Para 136 of the

judgment that general laws of land applicable to all persons

have been held to be applicable to the minority institutions

also, for example, laws relating to taxation, sanitation, social

welfare, economic regulations, public order and morality.

31. While examining the scope of Article 30, this fact was

specifically referred to in Inamdar (at page 594) and took the

view that, in the context of Article 30(1), no right can be

absolute and no community can claim its interest above

national interest. The expression "national interest" was

used in the context of respecting "laws of the land", namely,

while imposing restrictions with regard to laws relating to
72

taxation, sanitation, social welfare, economic legislation,

public order and morality and not to make an inroad into the

fundamental rights guaranteed under Article 19(1)(g) or

Article 30(1) of the Constitution.

32. Comparing the judgments in Inamdar and Pai

Foundation, what emerges is that so far as unaided

educational institutions are concerned, whether they are

established and administered by minority or non-minority

communities, they have no legal obligation in the matter of

seat sharing and upto the level of under-graduate education

they enjoy total freedom. State also cannot compel them to

give up a share of the available seats to the candidates

chosen by the State. Such an appropriation of seats, it was

held, cannot be held to be a regulatory measure in the

interest of minority within the meaning of Article 30(1) or a

reasonable restriction within the meaning of Article 19(6) of

the Constitution since they have unfettered fundamental

right and total freedom to run those institutions subject to

the law relating to taxation, sanitation, social welfare,

economic legislation, public order and morality.

33. Pai Foundation was examining the correctness of the

ratio in Unni Krishnan, which I have already pointed out,
73

was the basis for the insertion of Article 21A and the deletion

of clause (3) of the proposed Article 21A. Inamdar also

noticed that Pai Foundation had struck down ratio of Unni

Krishnan which invaded the rights of unaided educational

institutions by framing a scheme. Article 21A envisaged a

suitable legislation so as to achieve the object of free and

compulsory education to children of the age 6 to 14 years

and imposed obligation on the State, and not on unaided

educational institutions.

34. Parliament, in its wisdom, brought in a new legislation

Right to Education Act to provide free and compulsory

education to children of the age 6 to 14 years, to discharge

the constitutional obligation of the State, as envisaged under

Article 21A. Provisions have also been made in the Act to

cast the burden on the non-state actors as well, to achieve

the goal of Universal Elementary Education. The statement of

objects and reasons of the Bill reads as follows:

"4. The proposed legislation is anchored in the
belief that the values of equality, social justice and
democracy and the creation of a just and humane
society can be achieved only through provision of
inclusive elementary education to all. Provision of
free and compulsory education of satisfactory
quality to children from disadvantaged and weaker
sections is, therefore, not merely the responsibility
of schools run or supported by the appropriate
74

Governments, but also of schools which are not
dependent on Government funds."

35. The Bill was introduced in the Rajya Sabha which

passed the Bill on 20.7.2009 and in Lok Sabha on 4.8.2009

and received the assent of the President on 26.8.2009 and

was published in the Gazette of India on 27.8.2009.

36. Learned Attorney General of India submitted that the

values of equality, social justice and democracy and the

creation of just and humane society can be achieved only

through a provision of inclusive elementary education by

admitting children belonging to disadvantaged group and

weaker sections of the society which is not only the

responsibility of the state and institutions supported by the

state but also schools which are not dependent on

government funds. Learned Attorney General also submitted

that the state has got an obligation and a duty to enforce the

fundamental rights guaranteed to children of the age of 6 to

14 years for free and compulsory education and is to achieve

that objective, the Act was enacted. Learned Attorney

General submitted that Article 21A is a socio-economic right

which must get priority over rights under Article 19(1)(g) and

Article 30(1), because unlike other rights it does not operate
75

merely as a limitation on the powers of the state but it

requires affirmative state action to protect and fulfil the rights

guaranteed to children of the age of 6 to 14 years for free and

compulsory education. Reference was also made to the

judgments of this Court in Indian Medical Association v.

Union of India and others [(2011) 7 SCC 179] (in short

Medical Association case), Ahmedabad St. Xavier's College

Society and Another v. State of Gujarat and Another

[(1974) 1 SCC 717], Rev. Sidhajbhai Sabhai and Others v.

State of Bombay and Another [(1963) 3 SCR 837] and In

re. Kerala Education Bill (supra).

37. Learned Additional Solicitor General in her written as

well as oral submissions stated that Article 21A must be

considered as a stand alone provision and not subjected to

Article 19(1)(g) and Article 30(1) of the Constitution. Article

19(1)(g) and Article 30(1), it was submitted, dealt with the

subject of right to carry on occupation of establishing and

administering educational institutions, while Article 21A

deals exclusively with a child's right to primary education.

Article 21A, it was pointed out, has no saving clause which

indicates that it is meant to be a complete, standalone clause

on the subject matter of the right to education and is
76

intended to exclude the application of Article 19(1)(g) and

Article 30(1). Learned Additional Solicitor General submitted

that omission of clause (3) in the original proposed Article

21A would indicate that the intention of the Parliament was

to apply the mandate of Article 21A to all the educational

institutions, public or private, aided or unaided, minority or

non-minority.

38. Mrs. Menaka Guruswamy and Mrs. Jayna Kothari,

appearing for the intervener namely The Azim Premji

Foundation, in I.A. No. 7 in W.P. (C) No. 95/2010, apart from

other contentions, submitted that Article 21A calls for

horizontal application of sanction on state actors so as to give

effect to the fundamental rights guaranteed to the people.

Learned counsels submitted that Sections 15(2), 17, 18, 23

and 24 of the Constitution expressly impose constitutional

obligations on non-state actors and incorporate the notion of

horizontal application of rights. Reference was also made to

the judgment of this Court in People's Union for

Democratic Rights and Others v. Union of India and

Others [(1982) 3 SCC 235] and submitted that many of the

fundamental rights enacted in Part III, such as Articles 17, 23

and 24, among others, would operate not only against the
77

State but also against other private persons. Reference was

also made to the judgment of this Court Vishaka and

Others v. State of Rajasthan [(1997) 6 SCC 241], in which

this Court held that all employees, both public and private,

would take positive steps not to infringe the fundamental

rights guaranteed to female employees under Articles 14, 15,

21 and 19(1)(g) of the Constitution. Reference was also made

to Article 15(3) and submitted that the Constitution permits

the State to make special provisions regarding children.

Further, it was also contended that Articles 21A and 15(3)

provide the State with Constitutional instruments to realize

the object of the fundamental right to free and compulsory

education even through non-state actors such as private

schools.

39. Shri Rajeev Dhavan, learned senior counsel appearing

on behalf of some of the petitioners, submitted that Article

21A casts an obligation on the state and state alone to

provide free and compulsory education to children upto the

age of 6 to 14 years, which would be evident from the plain

reading of Article 21A read with Article 45. Learned senior

counsel submitted that the words "state shall provide" are

express enough to reveal the intention of the Parliament.
78

Further, it was stated that the constitutional provision never

intended to cast responsibility on the private educational

institutions along with the State, if that be so like Article

15(5), it would have been specifically provided so in Article

21A. Article 21A or Article 45 does not even remotely indicate

any idea of compelling the unaided educational institutions to

admit children from the neighbourhood against their wish

and in violation of the rights guaranteed under the

Constitution. Learned senior counsel submitted that since no

constitutional obligation is cast on the private educational

institutions under Article 21A, the State cannot through a

legislation transfer its constitutional obligation on the private

educational institutions. Article 21A, it was contended, is not

subject to any limitation or qualification so as to offload the

responsibility of the State on the private educational

institutions so as to abridge the fundamental rights

guaranteed to them under Article 19(1)(g), Article 26(a),

Article 29(1) and Article 30(1) of the Constitution.

40. Learned senior counsel submitted that Article 21A is

not meant to deprive the above mentioned core rights

guaranteed to the petitioners and if the impugned provisions

of the Act do so, to that extent, they may be declared
79

unconstitutional. Learned senior counsel submitted that the

"core individual rights" always have universal dimension and

thus represent universal value while "socio-economic rights"

envisaged the sectional interest and the core individual right,

because of its universal nature, promote political equality and

human dignity and hence must promote precedence over the

socio-economic rights. Learned senior counsel also

submitted that constitutional concept and the constitutional

interpretation given by Pai Foundation and Inamdar cannot

be undone by legislation. Learned counsel also submitted

that the concept of social inclusiveness has to be achieved

not by abridging or depriving the fundamental rights

guaranteed to the citizens who have established and are

administering their institutions without any aid or grant but

investing their own capital. The principles stated in Part IV of

the Constitution and the obligation cast on the State under

Article 21A, it was contended, are to be progressively achieved

and realised by the State and not by non-state actors and

they are only expected to voluntarily support the efforts of the

state.

41. Shri T.R. Andhyarujina, learned senior counsel

appearing for some of the minority institutions submitted
80

that the object of Articles 25 to 30 of the Constitution is to

preserve the rights of religious and linguistic minorities and

to place them on a secure pedestal and withdraw them from

the vicissitudes of political controversy. Learned senior

counsel submitted that the very purpose of incorporating

those rights in Part-III is to afford them guarantee and

protection and not to interfere with those rights except in

larger public interest like health, morality, public safety,

public order etc. Learned senior counsel extensively referred

to various provisions of the Act, and submitted that they

would make serious inroad into the rights guaranteed to the

minority communities. Learned counsel further submitted

that Section 12(1)(b) and 12(1)(c) in fact, completely take

away the rights guaranteed to minority communities, though

what was permitted by this Court was only "sprinkling of

outsiders" that is members of all the communities. Counsel

submitted that the mere fact that some of the institutions

established and administered by the minority communities

have been given grant or aid, the State cannot take away the

rights guaranteed to them under Article 30(1) of the

Constitution of India. Learned counsel submitted that

Article 21A read with Article 30(1) also confers a right on a
81

child belonging to minority community for free and

compulsory education in an educational institution

established and administered by the minority community for

their own children and such a constitutionally guaranteed

right cannot be taken away or abridged by law.

PART II

Article 21A and RTE Act

42. Right to education, so far as children of the age 6 to 14

years are concerned, has been elevated to the status of

fundamental right under Article 21A and a corresponding

obligation has been cast on the State, but through Sections

12(1)(b) and 12(1)(c) of the Act the constitutional obligation of

the State is sought to be passed on to private educational

institutions on the principle of social inclusiveness. Right to

Education has now been declared as a fundamental right of

children of the age 6 to 14 years and other comparable rights

or even superior rights like the Right to food, healthcare,

nutrition, drinking water, employment, housing, medical care

may also get the status of fundamental rights, which may be

on the anvil. Right guaranteed to children under Article 21A

is a socio-economic right and the Act was enacted to fulfil

that right. Let us now examine how these rights have been
82

recognized and given effect to under our Constitution and in

other countries.

43. Rights traditionally have been divided into civil rights,

political rights and socio-economic rights; the former rights

are often called the first generation rights and the latter, the

second generation rights. First generation rights have also

been described as negative rights because they impose a duty

and restraint on the state and generally no positive duties

flow from them with some exceptions. Over lapping of both

the rights are not uncommon. It is puerile to think that the

former rights can be realised in isolation of the latter or that

one overrides the others.

44. Socio-economic rights generally serve as a vehicle for

facilitating the values of equality, social justice and

democracy and the state is a key player in securing that goal.

The preamble of the Indian Constitution, fundamental rights

in Part III and the Directive Principles of State Policy in Part

IV are often called and described as "conscience of the

Constitution" and they reflect our civil, political and socio-

economic rights which we have to protect for a just and

humane society.

45. Supreme Court through various judicial
83

pronouncements has made considerable headway in the

realization of socio-economic rights and made them

justiciable despite the fact that many of those rights still

remain as Directive Principles of State Policy. Civil, political

and socio-economic rights find their expression in several

international conventions like U.N. Convention on Economic,

Social and Cultural Rights 1966 (ICESCR), International

Covenant on Civil and Political Rights 1966 (ICCPR),

Universal Declaration of Human Rights 1948 (UDHR), United

Nations Convention on Rights of Child 1989 (UNCRC)etc.

Reference to some of the socio-economic rights incorporated

in the Directive Principles of the State Policy in this

connection is useful. Article 47 provides for duty of the State

to improve public health. Principles enshrined in Articles 47

and 48 are not pious declarations but for guidance and

governance of the State policy in view of Article 37 and it is

the duty of the State to apply them in various fact situations.

46. Supreme Court has always recognized Right to health as

an integral part of right to life under Article 21 of the

Constitution. In Consumer Education & Research Centre

and Others v. Union of India and others [(1995) 3 SCC
84

42], this Court held that the right to life meant a right to a

meaningful life, which is not possible without having right to

healthcare. This Court while dealing with the right to

healthcare of persons working in the asbestos industry read

the provisions of Articles 39, 41 and 43 into Article 21. In

Paschim Banga Khet Majdoor Samity and Others v.

State of West Bengal and Another [(1996) 4 SCC 37], this

Court not only declared Right to health as a Fundamental

Right but enforced that right by asking the State to pay

compensation for the loss suffered and also to formulate a

blue-print for primary health care with particular reference to

the treatment of patients during emergency. A note of

caution was however struck in State of Punjab and Others

v. Ram Lubhaya Bagga and Others [(1998) 4 SCC 117]

stating that no State or country can have unlimited resources

to spend on any of its projects and the same holds good for

providing medical facilities to citizens. In Social Jurist, A

Lawyers Group v. Government Of NCT Of Delhi and

Others [(140) 2007 DLT 698], a Division Bench of Delhi High

Court, of which one of us, Justice Swatanter Kumar was a

party, held that the wider interpretations given to Article 21

read with Article 47 of the Constitution of India are not only
85

meant for the State but they are equally true for all, who are

placed at an advantageous situation because of the help or

allotment of vital assets. Dharamshila Hospital &

Research Centre v. Social Jurist & Ors.; SLP (C)

No.18599 of 2007 decided on 25.07.2011 filed against the

judgment was dismissed by this Court directing that

petitioners' hospitals to provide medical care to a specified

percentage of poor patients since some of the private

hospitals are situated on lands belonging to the State or

getting other concessions from the State.

47. Right to shelter or housing is also recognized as a

socio-economic right which finds its expression in Article 11

of the ICESCR but finds no place in Part-III or Part-IV of our

Constitution. However, this right has been recognized by this

Court in several judgments by giving a wider meaning to

Article 21 of the Constitution. In Olga Tellis and Others v.

Bombay Municipal Corporation and Others [(1985) 3 SCC

545], this Court was considering the claims of evictees from

their slums and pavement dwellings on the plea of

deprivation of right to livelihood and right to life. Their claim

was not fully accepted by this Court holding that no one has
86

the right to use a public property for private purpose without

requisite authorization and held that it is erroneous to

contend that pavement dwellers have the right to encroach

upon the pavements by constructing dwellings thereon. In

Municipal Corporation of Delhi v. Gurnam Kaur [(1989) 1

SCC 101], this Court held that Municipal Corporation of

Delhi has no legal obligation to provide pavement squatters

alternative shops for rehabilitation as the squatters had no

legally enforceable right. In Sodan Singh and Others v.

New Delhi Municipal Committee and Others [(1989) 4 SCC

155], this Court negated the claim of citizens to occupy a

particular place on the pavement to conduct a trade, holding

the same cannot be construed as a fundamental right. Socio-

economic compulsions in several cases did not persuade this

Court to provide reliefs in the absence of any constitutional or

statutory right. A different note was however struck in

Ahmedabad Municipal Corporation v. Nawab Khan Gulab

Khan and Others [(1997) 11 SCC 121] in the context of

eviction of encroachers from the city of Ahmedabad. This

Court held though Articles 38, 39 and 46 mandate the State,

as its economic policy, to provide socio-economic justice, no

person has a right to encroach and erect structures otherwise
87

on foot-paths, pavements or public streets. The Court has

however opined that the State has the constitutional duty to

provide adequate facilities and opportunities by distributing

its wealth and resources for settlement of life and erection of

shelter over their heads to make the right to life meaningful.

48. Right to work does not oblige the State to provide work

for livelihood which has also been not recognized as a

fundamental right. Mahatma Gandhi National Rural

Employment Guarantee Act, 2005 (Act 42 of 2005)

guarantees at least 100 days of work in every financial year to

every household whose adult members volunteer manual

work on payment of minimum wages. Article 41 of the

Constitution provides that State shall, within the limits of its

economic capacity and development, make effective provision

for securing the right to work, to education and to public

assistance in cases of unemployment, old age, sickness and

disablement, which right is also reflected in Article 6 of

ICESCR. Article 38 of Part-IV states that the State shall

strive to promote the welfare of the people and Article 43

states that it shall endeavour to secure a living wage and a

decent standard of life to all workers. In Bandhua Mukti
88

Morcha v. Union of India and Others [(1984) 3 SCC 161], a

Public Interest Litigation, an NGO highlighted the deplorable

condition of bonded labourers in a quarry in Haryana. It was

pointed out that a host of protective and welfare oriented

labour legislations, including Bonded Labour (Abolition) Act,

1976 and the Minimum Wages Act, 1948were not followed.

This Court gave various directions to the State Government to

enable it to discharge its constitutional obligation towards

bonded labourers. This Court held that right to live with

human dignity enshrined in Article 21 derives its life breath

from the Directive Principles of State Policy, particularly

clauses (e) and (f) of Article 39 and Articles 41 and 42 and

held that it must include protection of the health and

strength of workers, men and women and of the tender age of

children against abuse, opportunities and facilities for

children to develop in a healthy manner and in conditions of

freedom and dignity, educational facilities, just and humane

conditions of work and maternity relief.

49. The Constitutional Court of South Africa rendered

several path-breaking judgments in relation to socio-

economic rights. Soobramoney v. Minister of Health
89

(KwaZulu-Natal) [1998 (1) SA 765 (CC)] was a case

concerned with the right of emergency health services. Court

held that the State owes no duty to provide the claimant, a

diabetic sufferer, with kidney dialysis on a plea of socio-

economic right. Petitioner was denied dialysis by a local

hospital on the basis of a prioritization policy based on

limited resources. The Court emphasised that the

responsibility of fixing the health care budget and deciding

priorities lay with political organization and medical

authorities, and that the court would be slow to interfere with

such decisions if they were rational and "taken in good faith".

50. In Government of the Republic of South Africa and

Others v. Grootboom and others [2001 (1) SA 46 (CC)] was a

case where the applicants living under appalling conditions in

an informal settlement, had moved into private land from

which they were forcibly evicted. Camping on a nearby sports

field, they applied for an order requiring the government to

provide them with basic shelter. The Constitutional Court

did not recognize a directly enforceable claim to housing on

the part of the litigants, but ruled that the State is obliged to

implement a reasonable policy for those who are destitute.
90

The Court, however, limited its role to that of policing the

policy making process rather than recognizing an enforceable

individual right to shelter, or defining a minimum core of the

right to be given absolute priority.

51. Another notable case of socio-economic right dealt with

by the South African Court is Minister of Health and

others v. Treatment Action Campaign and others (TAC)

[2002 (5) SA 721 (CC)]. The issue in that case was whether

the state is obliged under the right of access to health care

(Sections 27(1) and (2) of 1996 Constitution) to provide the

anti-retroviral drug Nevirapine to HIV-positive pregnant

women and their new born infants. Referring the policy

framed by the State, the Court held that the State is obliged

to provide treatment to the patients included in the pilot

policy. The decision was the closest to acknowledging the

individual's enforceable right.

52. In Ex parte Chairperson of the Constitutional

Assembly: in re Certification of the Constitution of the

Republic of South Africa [1996 (4) SA 744 (CC)], the Court

made it clear that socio-economic rights may be negatively

protected from improper invasion, breach of the obligation,
91

occurs directly when there is a failure to respect the right or

indirectly when there is a failure to prevent the direct

entrenchment of the right of another, or a failure to respect

the existing protection of the right, by taking measures that

diminish the protection of private parties obligation, is not to

interfere with or diminish the enjoyment of the right

constitutionally protected. Equally important, in enjoyment

of that right, the beneficiary shall also not obstruct, destroy,

or make an inroad on the right guaranteed to others like non-

state actors.

53. Few of the other notable South African Constitutional

Court judgments are: Minister of Public Works and others

v. Kyalami Ridge Environmental Association and others

[2001 (7) BCLR 652 (CC)] and President of the Republic of

South Africa v. Modderklip Boerdery (Pty). Ltd. [2005 (5)

SA 3 (CC)].

54. South African Constitution, unlike many other

constitutions of the world, has included socio-economic

rights, health services, food, water, social security and

education in the Constitution to enable it to serve as an

instrument of principled social transformation enabling
92

affirmative action and horizontal application of rights. To

most of the social rights, the State's responsibility is limited

to take reasonable legislative and other measures within its

available resources to achieve the progressive realisation of

those rights [Sections 26(2), and 27(2)]. Few exceptions,

however, give rise to directly enforceable claims, namely, right

not to be evicted [Section 26(3)]; not to be refused emergency

medical treatment [Section 27(3)]; the rights of prisoners to

adequate nutrition and medical treatment [Section 35(2)] and

rights of Children (defined as those under 18 years) to basic

nutrition, shelter, basic health care and social services.

55. Social economic rights have also been recognized by

the constitutional courts of various other countries as well.

In Brown v. Board of Education [347 U.S. 483], the U.S.

Constitutional Court condemned the policy of segregation of

blacks in the American educational system. The Court held

that the private schools for black and white children are

inherently unequal and deprived children of equal rights.

56. In a Venenzuelan case Cruz del Valle Balle

Bermudez v. Ministry of Health and Social Action - Case

No.15.789 Decision No.916 (1999); the Court considered
93

whether those with HIV/AIDS had the right to receive the

necessary medicines without charge and identifying a positive

duty of prevention at the core of the right to health, it ordered

the Ministry to conduct an effective study into the minimum

needs of those with HIV/AIDS to be presented for

consideration in the Government's next budget. Reference

may also be made a judgment of the Canadian Constitution

Court in Wilson v. Medical Services Commission of

British Columbia [(53) D.L.R. (4th) 171].

57. I have referred to the rulings of India and other

countries to impress upon the fact that even in the

jurisdictions where socio-economic rights have been given the

status of constitutional rights, those rights are available only

against State and not against private state actors, like the

private schools, private hospitals etc., unless they get aid,

grant or other concession from the State. Equally important

principle is that in enjoyment of those socio-economic rights,

the beneficiaries should not make an inroad into the rights

guaranteed to other citizens.

REMOVAL OF OBSTACLES TO ACHIEVE SOCIO-
ECONOMIC RIGHTS
94

58. Socio-economic rights, I have already indicated, be

realized only against the State and the Statute enacted to

protect socio-economic rights is always subject to the rights

guaranteed to other non-state actors under Articles 19(1)(g),

30(1), 15(1), 16(1) etc. Parliament has faced many obstacles

in fully realizing the socio-economic rights enshrined in Part

IV of the Constitution and the fundamental rights guaranteed

to other citizens were often found to be the obstacles.

Parliament has on several occasions imposed limitations on

the enjoyment of the rights guaranteed under Part III of the

Constitution, through constitutional amendments.

59. Parliament, in order to give effect to Article 39 and to

remove the obstacle for realization of socio-economic rights,

inserted Article 31A vide Constitution (First Amendment) Act,

1951 and later amended by the Constitution (Fourth

Amendment) Act, 1955 and both the amendments were given

retrospective effect from the commencement of the

Constitution. The purpose of the first amendment was to

eliminate all litigations challenging the validity of legislation

for the abolition of proprietary and intermediary interests in

land on the ground of contravention of the provisions of
95

Articles 14, 19 and 31. Several Tenancy and Land Reforms

Acts enacted by the State also stood protected under Article

31A from the challenge of violation of Articles 14 and 19.

60. Article 31B also saves legislations coming under it

from inconsistency with any of the fundamental rights

included in Part III for example Article 14, Article 19(1)(g) etc.

Article 31B read with Ninth Schedule protects all laws even if

they are violative of fundamental rights. However, in I.R.

Coelho (Dead) by LRs v. State of Tamil Nadu and Others

[(2007) 2 SCC 1], it was held that laws included in the Ninth

Schedule can be challenged, if it violates the basic structure

of the Constitution which refer to Articles 14, 19, 21 etc.

61. Article 31C was inserted by the Constitution (Twenty-

fifth Amendment) Act, 1971 which gave primacy to Article

39(b) and (c) over fundamental rights contained under Article

14 and 19. Article 31C itself was amended by the

Constitution (Forty-second Amendment) Act, 1976 and

brought in all the provisions in Part-IV, within Article 31C for

protecting laws from challenge under article 14 and 19 of the

Constitution.
96

62. I have referred to Articles 31A to 31C only to point out

how the laws giving effect to the policy of the State towards

securing all or any of the principles laid down in Part-IV stood

saved from the challenge on the ground of violation or

infraction of the fundamental rights contained in Articles 14

and 19. The object and purpose of those constitutional

provisions is to remove the obstacles which stood in the way

of enforcing socio-economic rights incorporated in Part-IV of

the Constitution and also to secure certain rights, guaranteed

under Part III of the Constitution.

63. Rights guaranteed under Article 19(1)(g) can also be

restricted or curtailed in the interest of general public

imposing reasonable restrictions on the exercise of rights

conferred under Article 19(1)(g). Laws can be enacted so as to

impose regulations in the interest of public health, to prevent

black marketing of essential commodities, fixing minimum

wages and various social security legislations etc., which all

intended to achieve socio-economic justice. Interest of

general public, it may be noted, is a comprehensive

expression comprising several issues which affect public

welfare, public convenience, public order, health, morality,
97

safety etc. all intended to achieve socio-economic justice for

the people.

64. The law is however well settled that the State cannot

travel beyond the contours of Clauses (2) to (6) of Article 19 of

the Constitution in curbing the fundamental rights

guaranteed by Clause (1), since the Article guarantees an

absolute and unconditional right, subject only to reasonable

restrictions. The grounds specified in clauses (2) to (6) are

exhaustive and are to be strictly construed. The Court, it

may be noted, is not concerned with the necessity of the

impugned legislation or the wisdom of the policy underlying

it, but only whether the restriction is in excess of the

requirement, and whether the law has over-stepped the

Constitutional limitations. Right guaranteed under Article

19(1)(g), it may be noted, can be burdened by constitutional

limitations like sub-clauses (i) to (ii) to Clause (6).

65. Article 19(6)(i) enables the State to make law relating

to professional or technical qualifications necessary for

practicing any profession or to carry on any occupation, trade

or business. Such laws can prevent unlicensed, uncertified

medical practitioners from jeopardizing life and health of
98

people. Sub clause (ii) to Article 19(6) imposes no limits upon

the power of the State to create a monopoly in its favour.

State can also by law nationalize industries in the interest of

general public. Clause (6)(ii) of Article 19 serves as an

exception to clause (1)(g) of Article 19 which enable the State

to enact several legislations in nationalizing trades and

industries. Reference may be made to Chapter-4 of the Motor

Vehicles Act, 1938, The Banking Companies (Acquisition and

Transfer of Undertakings) Act, 1970, General Insurance

Business (Nationalization) Act, 1972 and so on. Sub-clause

6(ii) of Article 19 exempts the State, on the conditions of

reasonableness, by laying down that carrying out any trade,

business, industry or services by the State Government would

not be questionable on the ground that it is an infringement

on the right guaranteed under Article 19(1)(g).

66. I have referred to various provisions under sub-

clauses (i) and (ii) of Article 19(6) to impress upon the fact

that it is possible to amend the said Article so that socio-

economic rights could be realized by carving out necessary

constitutional limitations abrogating or abridging the right

guaranteed under Article 19(1)(g).
99

67. Constitutional amendments have also been made to

Articles 15 and 16 so as to achieve socio-economic justice.

Articles 15 and 16 give power to the State to make positive

discrimination in favour of the disadvantaged and

particularly, persons belonging to Scheduled Castes and

Scheduled Tribes. Socio-economic empowerment secures

them dignity of person and equality of status, the object is to

achieve socio-economic equality.

68. Faced with many obstacles to achieve the above

objectives and the Directive Principles of the State Policy,

Articles 15 and 16 of the Constitution had to be amended on

several occasions so as to get over the obstacles in achieving

the socio-economic justice. In State of Madras v. Shrimati

Champakam Dorairajan [(1951) 2 SCR 525], this Court laid

down the law that Article 29(2) was not controlled by Article

46 of the Directive Principles of the State Policy and that the

Constitution did not intend to protect the interest of the

backward classes in the matter of admission to educational

institutions. In order to set right the law and to achieve

social justice, Clause (4) was added to Article 15 by the

Constitutional (First Amendment) Act, 1951 enabling the
100

State to make special provision for the advancement of any

socially and educationally backward classes of citizens or for

the Scheduled Castes and Scheduled Tribes. The object of

Clause (4) was to bring Articles 15 and 29 in line with Articles

16(4), 46 and 340 of the Constitution, so as to make it

constitutional for the State to reserve seats for backward

classes citizens, Scheduled Castes and Scheduled Tribes in

the public educational institutions, as well as to make special

provisions, as may be necessary, for the advancement, e.g. to

provide housing accommodation for such classes. In other

words, Article 15(4) enables the State to do what would

otherwise have been unconstitutional. Article 15(4) has to be

read as a proviso or an exception to Article 29(2) and if any

provision is defined by the provisions of Article 15(4), its

validity cannot be questioned on the ground that it violates

Article 29(2). Under Article 15(4), the State is entitled to

reserve a minimum number of seats for members of the

backward classes, notwithstanding Article 29(2) and the

obstacle created under Article 29(2) has been removed by

inserting Article 15(4).

69. The Parliament noticed that the provisions of Article
101

15(4) and the policy of reservation could not be imposed by

the State nor any quota or percentage of admission be carved

out to be appropriated by the State in minority or non-

minority unaided educational institution, since the law was

clearly declared in Pai Foundation and Inamdar cases. It

was noticed that the number of seats available in aided or

State maintained institutions particularly in respect of

professional educational institutions were limited in

comparison to those in private unaided institutions. Article

46 states that the State shall promote, with special care, the

educational and economic interests of the weaker sections of

the people, and, in particular of the Scheduled Castes and

Scheduled Tribes, and shall protect them from social

injustice. Access to education was also found to be an

important factor and in order to ensure advancement of

persons belonging to Scheduled Castes, Scheduled Tribes,

socially and economically backward classes, it was proposed

to introduce Clause (5) to Article 15 to promote educational

advancement of socially and educationally backward classes

of citizens i.e. OBCs, Scheduled Castes and Scheduled Tribes

and the weaker sections of the society by securing admission

in unaided educational institutions and other minority
102

educational institutions referred to in Clause (1) of Article 30

of the Constitution.

70. The Parliament has, therefore, removed the obstacles

created by the law as ruled by the Court in Pai Foundation

and Inamdar so as to carry out the obligation under the

Directive Principles of the State Policy laid down under Article

46. Later, the Parliament enacted the Central Educational

Institutions (Reservation and Admission) Act, 2006 (for short

`the CEI Act'), but the Act never intended to give effect to the

mandate of the newly introduced Clause (5) to Article 15

dealing with admissions in both aided and unaided private

educational institutions.

71. Constitutional validity of Clause (5) to Article 15 and

the CEI Act came up for consideration before a Constitutional

Bench of this Court in Ashoka Kumar Thakur v. Union of

India and Others [(2008) 6 SCC 1]. CEI Act was enacted by

the Parliament under Article 15(5), for greater access to

higher education providing for 27 per cent reservation for

"Other Backward Classes" to the Central Government

controlled educational institutions, but not on privately

managed educational institutions. Constitutional validity of
103

Article 15(5) was challenged stating that it had violated the

basic structure doctrine. The majority of the Judges in

Ashok Kumar Thakur's case declined to pronounce on the

question whether the application of Article 15(5) to private

unaided institutions violated the basic structure of the

Constitution, in my view, rightly because that issue did not

arise for consideration in that case. Justice Dalveer

Bhandari, however, examined the validity of Article 15(5) with

respect to private unaided institutions and held that an

imposition of reservation of that sort would violate Article

19(1)(g) and thus the basic structure doctrine. Article 19(1)

(g), as such, it may be pointed out, is not a facet of the basic

structure of the Constitution, and can be constitutionally

limited in its operation, with due respect, Justice Bhandari

has overlooked this vital fact. Pai Foundation as well as

Inamdar held that Article 19(1)(g) prevents the State from

creating reservation quotas or policy in private unaided

professional educational institutions and, as indicated earlier,

it was to get over that obstacle that Clause (5) was inserted in

Article 15. In Ashok Kumar Thakur, the majority held that

Clause (5) to Article 15 though, moderately abridges or alters

the equality principle or the principles under Article 19(1)(g),
104

insofar as it dealt with State maintained and aided

institutions, it did not violate the basic structure of the

Constitution. I have referred to Articles 15(4) and 15(5) and

the judgment in Ashok Kumar Thakur to highlight the fact

that the State in order to achieve socio-economic rights, can

remove obstacles by limiting the fundamental rights through

constitutional amendments.

72. Applicability of Article 15(5), with regard to private

unaided non-minority professional institutions, came up for

consideration in Medical Association case. A two judges

Bench of this Court has examined the constitutional validity

of Delhi Act 80 of 2007 and the notification dated 14.8.2008

issued by the Government of NCT, Delhi permitting the Army

College of Medical Sciences to allocate 100% seats to the

wards of army personnel. The Court also examined the

question whether Article 15(5) has violated the basic

structure of the Constitution. The Court proceeded on the

basis that Army Medical College is a private non-minority,

unaided professional institution. Facts indicate that the

College was established on a land extending to approximately

25 acres, leased out by the Ministry of Defence, Government
105

of India for a period of 30 years extendable to 99 years.

Ministry of Defence also offered various facilities like

providing clinical training at Army Hospital, NCT, Delhi and

also access to the general hospitality. The constitutional

validity of Article 15(5) was upheld holding that Clause (5) of

Article 15 did not violate the basic structure of the

Constitution. While reaching that conclusion, Court also

examined the ratio in Pai Foundation as well as in

Inamdar. Some of the findings recorded in Medical

Association case, on the ratio of Pai Foundation and

Inamdar, in my view, cannot be sustained.

73. Medical Association case, it is seen, gives a new

dimension to the expression "much of difference" which

appears in paragraph 124, page 601 of Inamdar. Learned

Judges in Medical Association case concluded in Para 80 of

that judgment that the expression "much of a difference"

gives a clue that there is an "actual difference" between the

rights of the minority unaided institutions under clause (1) of

Article 30 and the rights of non-minority unaided institutions

under sub-clause (g) of Clause (1) of Article 19. Let us refer

to paragraph 124 of Inamdar to understand in which context
106

the expression "much of difference" was used in that

judgment, which is extracted below:

"So far as appropriation of quota by the State
and enforcement of its reservation policy is
concerned, we do not see much of a difference
between non-minority and minority unaided
educational institutions. We find great force in the
submission made on behalf of the petitioners that
the states have no power to insist on seat-sharing in
unaided private professional educational
institutions by fixing the quota of seats between the
Management and the State." (emphasis supplied)

Inamdar was expressing the view that so far as

"appropriation of quota by the State" and "enforcement of its

reservation policy" is concerned, they do not see much of

difference between non-minority and minority unaided

educational institutions. Medical Association case, on the

other hand, in my view, has gone at a tangent and gave a new

dimension and meaning to paragraph 124 of Inamdar, which

is evident from the following paragraph of that judgment:

"81. xxx xxx
xxx xxx

(i) that there is not much of a difference in
terms, between the two kinds of institutions
under consideration, based on an overall
quantitative assessment of all the rights put
together, with a few differences that would
107

still have operational significance; or

(ii) that in all respects the two classes of
educational institutions are more or less the
same, with the differences being minor and
not leading to any operational significance."

(emphasis supplied)

Medical Association case concluded that the expression

"much of a difference" could be understood only in the way

they have stated in paragraph 81(i) which, with due respect,

is virtually re-writing paragraph 124 of Inamdar, a seven

Judges' Judgment which is impermissible. Final conclusion

reached by the learned judges in paragraph 123 for inclusion

of Clause (5) to Article 15 reads as follows:

"123. Clause (5) of Article 15 is an enabling
provision and inserted by the Constitution (Ninety-
third Amendment) Act, 2005 by use of powers of
amendment in Article 368. The Constitution
(Ninety-third Amendment) Act, 2005 was in
response to this Court's explanation, in P.A.
Inamdar, of the ratio in T.M.A. Pai, that imposition
of reservations on non-minority unaided
educational institutions, covered by sub-clause (g)
of clause (1) of Article 19, to be unreasonable
restrictions and not covered by clause (6) of Article
19. The purpose of the amendment was to clarify
or amend the Constitution in a manner that what
was held to be unreasonable would now be
reasonable by virtue of the constitutional status
given to such measures."

74. Referring to Pai Foundation case, the Court also
108

stated, having allowed the private sector into the field of

education including higher education, it would be

unreasonable, pursuant to clause (6) of Article 19, for the

State to fix the fees and also impose reservations on private

unaided educational institutions. Nevertheless, the Court

opined that taking into consideration the width of the original

powers under Clause (6) of Article 19, one would necessarily

have to find the State would at least have the power to make

amendments to resurrect some of those powers that it had

possessed to control the access to higher education and

achieve the goals of egalitarianism and social justice.

75. Article 15(5), it may be noted, gives no protection to

weaker sections of the society, except members belonging to

Scheduled Castes/Scheduled Tribes and members of Other

Backward Community.

76. Constitutional amendments carried out to Article 16 in

securing social justice may also be examined in this context.

Clause (1) of Article 16 guarantees equality of opportunity for

all citizens in matters relating to employment or appointment

to any office under the State. Article 16(4) is a special

provision confined to the matters of employment in the
109

services under the State which states that nothing in Article

16(1) shall prevent the State from making any provision for

the reservation of appointments or posts in favour of any

backward class of citizens which is not adequately

represented in the services under the State. Article 46

obliges the State to take steps for promoting the economic

interests of the weaker sections and, in particular, of the

Scheduled Castes and Scheduled Tribes. The expression

`weaker sections' in Article 46 is wider than `backward class'.

The backward citizens in Article 16(4) do not comprise of all

the weaker sections of the people but only those which are

socially, educationally and economically backward, and which

are not adequately represented in the services under the

State. Further, the expression `weaker sections' can also take

within its compass individuals who constitute weaker

sections or weaker parts of the society.

77. In Indra Sawhney v. Union of India and Others

[(1992) Supp. 3 SCC 212], this Court held that, as the law

stood then, there could be no reservation in promotion. It

was held that reservation of appointments or posts under

Article 16(4) is confined to initial appointments only. To set
110

right the law and to advance social justice by giving

promotions to Scheduled Castes and Scheduled Tribes Clause

(4A) was added to Article 16 by the Constitution (Seventy-

seventh Amendment) Act, 1995. Consequently, the hurdle or

obstacle which stood in the way was removed by the

Constitutional amendment.

78. The scope of the above provision came up for

consideration in Jagdish Lal and Others v. State of

Haryana and Others [(1997) 6 SCC 538], where this Court

held that the principle of seniority according to length of

continuous service on a post or service will apply and that

alone will have to be looked into for the purpose of seniority

even though they got promotion ignoring the claim of seniors.

It was said that reserved candidates who got promotion

ignoring the claim of services in general category will be

seniors and the same cannot affect the promotion of general

candidates from the respective dates of promotion and

general candidates remain junior in higher echelons to the

reserved candidates. The above position was, however,

overruled in Ajit Singh and Others v. State of Punjab and

Others [(1999) 7 SCC 209], wherein it was decided that the
111

reserved category candidates cannot count seniority in the

promoted category from the date of continuous officiation vis-

à-vis the general candidates who were senior to them in the

lower category and who were later promoted. Ajit Singh

case was declaring the law as it stood. Consequently, the

Parliament, in order to give continuous appreciation in

promotion, inserted the words "with consequential seniority"

in Clause (4A) to Article 16 by Constitution (Eighty-fifth

Amendment) Act, 2001 (which was made effective from

17.6.1995). In the light of Article 16(4A), the claims of

Scheduled Castes and Scheduled Tribes for promotion shall

be taken into consideration in making appointment or giving

promotion.

79. Constitution (Eighty-first Amendment) Act, 2000,

which came into effect on 9.6.2000, inserted Clause (4B) to

Article 16, which envisaged that the unfilled reserved

vacancies in a year to be carried forward to subsequent years

and that these vacancies are to be treated as distinct and

separate from the current vacancies during any year, which

means that 50% rule is to be applied only to normal

vacancies and not to the posts of backlog of reserved
112

vacancies. Inadequacy and representation of backward

classes, Scheduled Castes and Scheduled Tribes are the

circumstances which enabled the State Government to enact

Articles 16(4), 16(4A) and 16(4B).

80. The constitutional validity of Article 16(4A) substituted

by the Constitution (Eighty-fifth Amendment) Act, 2001 came

up for consideration before this Court in M. Nagaraj & Ors.

v. Union of India [(2006) 8 SCC 212]. The validity of the

Constitution (Seventy-seventh Amendment) Act, 1995, the

Constitution (Eighty-first Amendment) Act, 2000, the

Constitution (Eighty-second Amendment) Act, 2000 and the

Constitution (Eighty-fifth Amendment) Act, 2001 were also

examined and held valid. This Court held that they do not

infringe either the width of the Constitution amending power

or alter the identity of the Constitution or its basic structure.

This Court held that the ceiling-limit of 50%, the concept of

creamy layer and the compelling reasons, namely,

backwardness, inadequacy of representation and overall

administrative efficiency are all constitutional requirements

without which the structure of equality of opportunity in

Article 16 would collapse.
113

81. I have referred extensively to the constitutional

amendments effected to Articles 31A to 31C, Articles 15, 16

and 19 to show that whenever the Parliament wanted to

remove obstacles so as to make affirmative action to achieve

socio-economic justice constitutionally valid, the same has

been done by carrying out necessary amendments in the

Constitution, not through legislations, lest they may make an

inroad into the fundamental rights guaranteed to the citizens.

Rights guaranteed to the unaided non-minority and minority

educational institutions under Article 19(1)(g) and Article

30(1) as explained in Pai Foundation and reiterated in

Inamdar have now been limited, restricted and curtailed so

as to impose positive obligation on them under Section 12(1)

(c) of the Act and under Article 21A of the Constitution, which

is permissible only through constitutional amendment.

82. Constitutional principles laid down by Pai Foundation

and Inamdar on Articles 19(1)(g), 29(2) and 30(1) so far as

unaided private educational institutions are concerned,

whether minority or non-minority, cannot be overlooked and

Article 21A, Sections 12(1)(a), (b) and 12(1)(c) have to be

tested in the light of those constitutional principles laid down

by Pai Foundation and Inamdar because Unnikrishnan
114

was the basis for the introduction of the proposed Article 21A

and the deletion of clause (3) from that Article. Interpretation

given by the courts on any provision of the Constitution gets

inbuilt in the provisions interpreted, that is, Articles 19(1)(g),

29(2) and 30.

83. We have to give due respect to the eleven Judges

judgment in Pai Foundation and the seven Judges judgment

in Inamdar, the principles laid down in those judgments still

hold good and are not whittled down by Article 21A, nor any

constitutional amendment was effected to Article 19(1)(g) or

Article 30(1). Article 21A, it may be noted was inserted in the

Constitution on 12.12.2002 and the judgment in Pai

Foundation was delivered by this Court on 31.10.2002 and

25.11.2002. Parliament is presumed to be aware of the law

declared by the Constitutional Court, especially on the rights

of the unaided non-minority and minority educational

institutions, and in its wisdom thought if fit not to cast any

burden on them under Article 21A, but only on the State.

Criticism of the judgments of the Constitutional Courts has to

be welcomed, if it is healthy. Critics, it is seen often miss a

point which is vital, that is, Constitutional Courts only
115

interpret constitutional provisions and declare what the law

is, and not what law ought to be, which is the function of the

legislature. Factually and legally, it is not correct to

comment that many of the amendments are necessitated to

overcome the judgments of the Constitutional Courts.

Amendments are necessitated not to get over the judgments

of the Constitutional Courts, but to make law constitutional.

In other words, a law which is otherwise unconstitutional is

rendered constitutional. An unconstitutional statute is not a

law at all, whatever form or however solemnly it is enacted.

When legislation is declared unconstitutional by a

Constitutional Court, the legislation in question is not vetoed

or annulled but declared never to have been the law. People,

acting solemnly in their sovereign capacity bestow the

supreme dominion on the Constitution and, declare that it

shall not be changed except through constitutionally

permissible mode. When courts declare legislative acts

inconsistent with constitutional provisions, the court is giving

effect to the will of the people not due to any judicial

supremacy, a principle which squarely applies to the case on

hand.
116

84. In S.P. Gupta v. President of India and Others

[1981 SCC Supp. (1) 87] [para 195], Justice Fazal Ali pointed

out as follows:

" The position so far as our country is concerned is
similar to that of America and if any error of
interpretation of a constitutional provision is
committed by the Supreme Court or any
interpretation which is considered to be wrong by
the Government can be rectified only by a
constitutional amendment which is a very
complicated, complex, delicate and difficult
procedure requiring not merely a simple majority
but two-third majority of the Members present and
voting. Apart from the aforesaid majority, in most
cases the amendment has to be ratified by a
majority of the States. In these circumstances,
therefore, this Court which lays down the law of the
land under Article 141 must be extremely careful
and circumspect in interpreting statutes, more so
constitutional provisions, so to obviate the necessity
of a constitutional amendment every time which, as
we have already mentioned, is an extremely onerous
task."

Reference may also be made to the judgment in Bengal

Immunity Company Limited v. State of Bihar and Others

[AIR 1955 SC 661].

85. In People's Union for Civil Liberties (PUCL) and

Anr. v. Union of India (UOI) and Anr. [2003 (4) SCC 399] in

para 112 this Court has held "It is a settled principle of

constitutional jurisprudence that the only way to render a

judicial decision ineffective is to enact a valid law by way of
117

amendment......."

86. In Smit v. Allwright [321 U.S. 649 (1944)], the Court

held "In constitutional questions, where correction depends

upon amendment, and not upon legislative action, this Court

throughout its history has freely exercised its power to re-

examine the basis of its constitutional decisions. This has long

been accepted practice and this practice has continued to this

day."

87. Constitutional interpretation given by this Court as to

what the law is, led to bringing in several amendments either

to set right the law or abridge the constitutional rights

guaranteed in Part III of the Constitution, some of which I

have already referred to in the earlier part of this judgment.

88. Principles laid down by Pai Foundation and in

Inamdar while interpreting Articles 19(1)(g), 29(2) and 30(1)

in respect of unaided non-minority and minority educational

institutions like schools upto the level of under-graduation

are all weighty and binding constitutional principles which

cannot be undone by statutory provisions like Section 12(1)

(c), since those principles get in-built in Article 19(1)(g),
118

Article 29(2) and Article 30(1) of the Constitution. Further

Parliament, while enacting Article 21A, never thought if fit to

undo those principles and thought it fit to cast the burden on

the State.

PART III
OBLIGATIONS/RESPONSIBILITIES OF NON-STATE
ACTORS IN REALIAZATION OF CHILDREN'S RIGHTS:

89. We may, however, also examine whether the private

unaided educational institutions have any

obligations/responsibilities in realization of children's rights.

Articles 21A, 45, 51A(k), Section 12 of the Act and various

International Conventions deal with the obligations and

responsibilities of state and non-state actors for realization of

children's rights. Social inclusiveness is stated to be the

motto of the Act which was enacted to accomplish the State's

obligation to provide free and compulsory education to

children of the age 6 to 14 years, in that process,

compulsorily co-opting, private educational institutions as

well. A shift in State's functions, to non-state actors in the

field of health care, education, social services etc. has been

keenly felt due to liberalization of economy and privatization
119

of state functions.

90. The Universal Declaration of Human Rights, 1948

(UDHR), the International Covenant on Civil and Political

Rights (ICCPR) and the International Covenant on Economic,

Social and Cultural Rights, 1966 (ICESCR), UN Convention

on the Rights of the Child (UNCRC), 1989 throw considerable

light on the duties and responsibilities of State as well as

non-state actors for the progressive realization of children

rights. Article 6(1) of ICCPR states: "Every human being has

the inherent right to life ... No one shall be arbitrarily

deprived of this right", meaning thereby that the arbitrary

deprivation of a person's life will be a violation of

international human rights norm whether it is by the State or

non-state actors. UDHR, ICCPR, ICESCR, UNCRC and other

related international covenants guarantee children civil,

political, economical, social and cultural rights. Article 4 of

the UNCRC requires the State to undertake all appropriate

legislative, administrative and other measures for the

implementation of the rights recognized in the Convention.

91. Article 2.1 of the ICESCR, has also approved the above

obligation of the State, which reads as follows:
120

"Each State Party to the present Covenant
undertakes to take steps, individually and through
international assistance and co-operation, especially
economic and technical, to the maximum of its
available resources, with a view to achieving
progressively the full realization of the rights
recognized in the present Covenant by all
appropriate means, including particularly the
adoption of legislative measures."

Non-state actor's obligation is also reflected in preamble of

ICCPR and ICESCR which is as follows:

"The individual, having duties to other
individuals and to the community to which he
belongs, is under a responsibility to strive for the
promotion and observance of the rights recognized
in the present Covenant."

Preamble of UDHR also reads as follows:

"... every individual and every organ of society,
keeping this Declaration constantly in mind, shall
strive by teaching and education, to promote respect
for these rights and freedoms and by progressive
measures, national and international, to secure
their universal and effective recognition and
observance..."

Non-state actor's "duty to the community" and to the

"individuals in particular" are accordingly highlighted.

Article 30 of UDHR highlights the necessity to protect

and safeguard the right of others which reads as follows :-

"Nothing in this Declaration may be interpreted
as implying for any state, group or person any right
121

to engage in any activity or to perform any act aimed
at the destruction of any of the rights and freedoms
set forth herein."

92. In this connection reference may be made to Article

28(1)(a) of UNCRC which reads as follows: "States Parties

recognize the right of the child to education, and with a view to

achieving this right progressively and on the basis of equal

opportunity, they shall, in particular: make primary education

compulsory and available free to all";

Article 29 is also relevant for our purpose which reads as

follow:-

1. States Parties agree that the education of the
child shall be directed to:

(a) The development of the child's personality,
talents and mental and physical abilities to their
fullest potential;

(b) The development of respect for human rights and
fundamental freedoms, and for the principles
enshrined in the Charter of the United Nations;
(c) The development of respect for the child's
parents, his or her own cultural identity, language
and values, for the national values of the country in
which the child is living, the country from which he
or she may originate, and for civilizations different
from his or her own;
(d) The preparation of the child for responsible life in
a free society, in the spirit of understanding, peace,
tolerance, equality of sexes, and friendship among
all peoples, ethnic, national and religious groups
and persons of indigenous origin;
122

(e) The development of respect for the natural
environment.

2. No part of the present article or article 28 shall
be construed so as to interfere with the liberty of
individuals and bodies to establish and direct
educational institutions, subject always to the
observance of the principle set forth in paragraph 1
of the present article and to the requirements that
the education given in such institutions shall
conform to such minimum standards as may be laid
down by the State.

93. Provisions referred to above and other provisions of

International Conventions indicate that the rights have been

guaranteed to the children and those rights carry

corresponding State obligations to respect, protect and fulfill

the realization of children's rights. The obligation to protect

implies the horizontal right which casts an obligation on the

State to see that it is not violated by non-state actors. For

non-state actors to respect children's rights cast a negative

duty of non-violation to protect children's rights and a

positive duty on them to prevent the violation of children's

rights by others, and also to fulfill children's rights and take

measures for progressive improvement. In other words, in

the spheres of non-state activity there shall be no violation of

children's rights.
123

94. Article 24 of the Indian Constitution states that no

child below the age of 14 years shall be employed to work in

any factory or be engaged in any hazardous employment.

The Factories Act, 1948 prohibits the employment of children

below the age of 14 years in any factory. Mines Act, 1952

prohibits the employment of children below 14 years. Child

Labour (Prohibition and Regulation) Act, 1986 prohibits

employment of children in certain employments. Children

Act, 1960 provides for the care, protection, maintenance,

welfare, training, education and rehabilitation of neglected or

delinquent children. Juvenile Justice (Care and Protection of

Children) Act, 1986 (the Amendment Act 33 of 2006) provide

for the care, protection, development and rehabilitation of

neglected and delinquent juveniles. There are also other

legislations enacted for the care and protection of children

like Immoral Trafficking Prevention Act, 1956, Prohibition of

Child Marriage Act, 2006 and so on. Legislations referred to

above cast an obligation on non-state actors to respect and

protect children's rights and not to impair or destroy the

rights guaranteed to children, but no positive obligation to

make available those rights.
124

95. Primary responsibility for children's rights, therefore,

lies with the State and the State has to respect, protect and

fulfill children's rights and has also got a duty to regulate the

private institutions that care for children, to protect children

from violence or abuse, to protect children from economic

exploitation, hazardous work and to ensure human treatment

of children. Non-state actors exercising the state functions

like establishing and running private educational institutions

are also expected to respect and protect the rights of the

child, but they are, not expected to surrender their rights

constitutionally guaranteed.

96. Article 21A requires non-state actors to achieve the

socio-economic rights of children in the sense that they shall

not destroy or impair those rights and also owe a duty of

care. The State, however, cannot free itself from obligations

under Article 21A by offloading or outsourcing its obligation

to private State actors like unaided private educational

institutions or to coerce them to act on the State's dictate.

Private educational institutions have to empower the

children, through developing their skills, learning and other

capacities, human dignity, self-esteem and self-confidence
125

and to respect their constitutional rights.

97. I have in the earlier part of the judgment referred to

Article 28(1) and Article 29 of UNCRC which cast an

obligation on the State to progressively achieve the rights of

children and also to make primary education compulsory and

available free to all but all the same make it clear that no part

of Articles 28 and 29 be construed to interfere with the liberty

of non-state actors. They are expected to observe the

principles set forth in Para 1 of Article 29 and also to conform

to such minimum standards as laid down by the state.

98. South African Constitution Bench in Governing Body

of the Juma Musjid Primary School v. Minister for

Education [[2011] ZACC 13] dealt with the interplay between

private rights and the State's obligation to provide right to

education. In that case, the Court held that the primary

positive obligation to provide the right to education resides on

the Government and the purpose of Section 8(2) of the

Constitution is not to obstruct private autonomy or to impose

on a private party the duties of the state in protecting the Bill

of Rights. That was a case involving balancing of proprietary

rights of a trust seeking to evict a public school in order to
126

establish an independent school. One of the pleas raised by

the evictees was that the evictor trust also had an obligation

towards the right to education of the learners which it could

not ignore. The Constitutional Court held that the only

obligation of a private party as regards socio-economic rights,

like right to education, is a negative obligation i.e. not to

unreasonably interfere with the realization of the right and

that there is no positive obligation cast on them to protect the

right by surrendering their rights.

99. Pai Foundation and Inamdar also cast a negative

obligation on the private educational institutions in the sense

that there shall be no profiteering, no demand of excessive

fee, no capitation fee, no maladministration, no cross subsidy

etc. Further, this Court, while interdicting the State in

appropriating seats in private educational institutions,

restrained them from interfering with the autonomy of those

institutions and adopted a balancing approach laying down

the principle of voluntariness, co-operation, concession, and

so on.

100. Pai Foundation and Inamdar have categorically

held that any action of the State to regulate or control
127

admissions in the unaided professional educational

institutions, so as to compel them to give up a share of the

available seats to the candidates chosen by the State, as if it

was filling the seats available to be filled up at its discretion

in such private institutions, would amount to nationalization

of seats. Such imposition of quota of State seats or enforcing

reservation policy of the State on available seats in unaided

professional institutions, it was held, are acts constituting

serious encroachment on the right and autonomy of private

unaided professional educational institutions and such

appropriation of seats cannot be held to be a regulatory

measure in the interest of minority within the meaning of

Article 30(1) or a reasonable restriction within the meaning of

Article 19(6) of the Constitution, so far as the unaided

minority institutions are concerned.

PART IV
101. Article 21A has used the expression "State shall

provide" not "provide for" hence the constitutional obligation

to provide education is on the State and not on non-state

actors, the expression is clear and unambiguous and to

interpret that expression to mean that constitutional
128

obligation or responsibility is on private unaided educational

institutions also, in my view, doing violence to the language

of that expression. The obligation of the State to provide free

and compulsory education is without any limitation.

Parliament in its wisdom has not used the expression

"provide for". If the preposition "for" has been used then the

duty of the State would be only to provide education to those

who require it but to provide for education or rather to see

that it is provided. In this connection it is useful to refer to

the judgment of the Supreme Court of Ireland in Crowley v.

Ireland [(1980) IR 102], where the expression "provide for"

came up for interpretation. It was held that the use of the

preposition "for" keeps the State at one remove from the

actual provision of education indicating that once the State

has made an arrangement for the provision of education

provided the buildings, pay teachers and set the curriculum -

it is absolved of the responsibility when the education is not

actually delivered. The absence of the preposition "for" in

Article 21A makes the duty on the State imperative. State

has, therefore, to "provide" and "not provide for" through

unaided private educational institutions.
129

102. Article 21A has used the expression "such manner"

which means the manner in which the State has to discharge

its constitutional obligation and not offloading those

obligations on unaided educational institutions. If the

Constitution wanted that obligation to be shared by private

unaided educational institutions the same would have been

made explicit in Article 21A. Further, unamended Article 45

has used the expression "state shall endeavour.....for" and

when Article 21A was inserted, the expression used therein

was that the "State shall provide" and not "provide for" the

duty, which was directory earlier made mandatory so far as

State is concerned. Article 21 read with 21A, therefore, cast

an obligation on the State and State alone.

103. The State has necessarily to meet all expenses of

education of children of the age 6 to 14 years, which is a

constitutional obligation under Article 21A of the

Constitution. Children have also got a constitutional right to

get free and compulsory education, which right can be

enforced against the State, since the obligation is on the

State. Children who opt to join an unaided private

educational institution cannot claim that right as against the

unaided private educational institution, since they have no
130

constitutional obligation to provide free and compulsory

education under Article 21A of the Constitution. Needless to

say that if children are voluntarily admitted in a private

unaided educational institution, children can claim their

right against the State, so also the institution. Article 51A(k)

of the Constitution states that it shall be the duty of every

citizen of India, who is a parent or guardian, to provide

opportunities for education to his child. Parents have no

constitutional obligation under Article 21A of the

Constitution to provide free and compulsory education to

their children, but only a constitutional duty, then one fails

to see how that obligation can be offloaded to unaided private

educational institutions against their wish, by law, when they

have neither a duty under the Directive Principles of State

policy nor a constitutional obligation under Article 21A, to

those 25% children, especially when their parents have no

constitutional obligation.

104. In Avinash Mehrotra v. Union of India & Others

[{2009} 6 SCC 398], this Court held that Article 21A imposes

a duty on the State, while Article 51A(k) places burden on the

parents to provide free and compulsory education to the

children of the age 6 to 14 years. There exists a positive
131

obligation on the State and a negative obligation on the non-

state actors, like private educational institutions, not to

unreasonably interfere with the realization of the children's

rights and the state cannot offload their obligation on the

private unaided educational institutions.

105. I am, therefore, of the considered view that Article

21A, as such, does not cast any obligation on the private

unaided educational institutions to provide free and

compulsory education to children of the age 6 to 14 years.

Article 21A casts constitutional obligation on the State to

provide free and compulsory education to children of the age

6 to 14 years.

CONSTITUTIONALLY IMPERMISSIBLE PROCEDURE
ADOPTED TO ACHIEVE SOCIAL INCLUSIVENESS UNDER
THE ACT.

106. I may endorse the view that the purpose and object

of the Act is laudable, that is, social inclusiveness in the field

of elementary education but the means adopted to achieve

that objective is faulty and constitutionally impermissible.

Possibly, the object and purpose of the Act could be achieved

by limiting or curtailing the fundamental rights guaranteed to

the unaided non-minority and minority educational
132

institutions under Article 19(1)(g) and Article 30(1) or

imposing a positive obligation on them under Article 21A, but

this has not been done in the instant case. I have extensively

dealt with the question - how the socio economic rights could

be achieved by making suitable constitutional amendments

in Part II of this judgment.

107. Sections 12(1)(b) and 12(1)(c) are vehicles through

which the concept of social inclusiveness is sought to be

introduced into the private schools both aided and unaided

including minority institutions, so as to achieve the object of

free and compulsory education of the satisfactory quality to

the disadvantaged groups and weaker sections of the society.

The purpose, it is pointed out, is to move towards composite

classrooms with children from diverse backgrounds, rather

than homogenous and exclusive schools and it was felt that

heterogeneity in classrooms leads to greater creativity. In

order to understand the scope of the above mentioned

provisions and the object sought to be achieved, it is

necessary to refer to those and other related provisions:-

Section 12:- Extent of School's responsibility for
free and compulsory education
133

(1) For the purposes of this Act, a school, -

(a) specified in sub-clause(i) of clause (n)
of section 2 shall provide free and
compulsory elementary education to all
children admitted therein ;

(b) specified in sub-clause(ii) of clause
(n) of section 2 shall provide free and
compulsory elementary education to such
proportion of children admitted therein as
its annual recurring aid or grants so
received bears to its annual recurring
expenses, subject to a minimum of
twenty-five per cent.;

(c) specified in sub-clauses (iii) and (iv) of
clause (n) of section 2 shall admit in class
I, to the extent of at least twenty-five per
cent of the strength of that class, children
belonging to weaker section and
disadvantaged group in the
neighbourhood and provide free and
compulsory elementary education till its
completion:

Provided further that where a school specified in
clause (n) of section 2 imparts pre-school education,
the provisions of clauses (a) to (c) shall apply for
admission to such pre-school education.

(2) The school specified in sub-clause (iv) of clause
(n) of section 2 providing free and compulsory
elementary education as specified in clause (c) of
sub-section (1) shall be reimbursed expenditure so
incurred by it to the extent of per-child expenditure
incurred by the State, or the actual amount charged
from the child, whichever is less, in such manner as
may be prescribed:

Provided that such reimbursement shall
not exceed per-child-expenditure incurred by a
134

school specified n sub-clause (i) of clause(n) of
section 2:

Provided further where such school is
already under obligation to provide free education to
a specified number of children on account of it
having received any land, building, equipment or
other facilities, either free of cost or at a
concessional rate, such school shall not be entitled
for reimbursement to the extent of such obligation.

(3) Every school shall provide such
information as may be required by the appropriate
Government or the local authority, as the case may
be.

Reference may be also be made to definition clauses.

2(d) "child belonging to disadvantaged group"
means a child belonging to the Scheduled Caste,
the Scheduled Tribe, the socially and educationally
backward class or such other group having
disadvantage owing to social, cultural, economical,
geographical, linguistic, gender or such other
factor, as may be specified by the appropriate
Government, by notification;

2(e) "child belonging to weaker section" means a
child belonging to such parent or guardian whose
annual income is lower that the minimum limit
specified by the appropriate Government, by
notification;

2(n) "school" means any recognized school
imparting elementary education and includes

(i) a school established, owned or controlled by
the appropriate Government or a local authority;

(ii) an aided school receiving aid or grants to
meet whole or part of its expenses from the
appropriate Government or the local authority.
135

(iii) a school belonging to specified category; and

(iv) an unaided school not receiving any kind of
aid or grants to meet its expenses from the
appropriate Government or the local authority.

(A) Unaided Educational Institutions, minority and non-
minority:

108. First, I may deal with the challenge against Section

12(1)(c), which casts an obligation on the unaided private

educational institutions both non-minority and minority to

admit to class 1 at least 25% of the strength of those children

falling under Sections 2(d) and 2(e), and also in the pre-

school, if there is one. State also has undertaken re-

imbursement of the fees of those children to the extent of per-

child expenditure incurred by the State.

109. Right of a citizen to establish and run an educational

institution investing his own capital is recognized as a

fundamental right under Article 19(1)(g) and the right of the

State to impose reasonable restrictions under Article 19(6) is

also conceded. Citizens of this country have no constitutional

obligation to start an educational institution and the question

is after having started private schools, do they owe a
136

constitutional obligation for seat sharing with the State on a

fee structure determined by the State. Pai Foundation and

Inamdar took the view that the State cannot regulate or

control admission in unaided educational institutions so as to

compel them to give up a share of available seats which

according to the court would amount to nationalization of

seats and such an appropriation of seats would constitute

serious encroachment on the right and autonomy of the

unaided educational institutions. Both Pai Foundation and

Inamdar are unanimous in their view that such

appropriation of seats cannot be held to be a regulatory

measure in the interest of rights of the unaided minority

educational institutions guaranteed under Article 30(1) of the

Constitution or a reasonable restriction within the meaning of

Article 19(6) in the case of unaided non-minority educational

institution. Inamdar has also held that to admit students

being an unfettered fundamental right, the State cannot

make fetters upto the level of under graduate education.

Unaided educational institutions enjoy total freedom and they

can legitimately claim `unfettered fundamental rights' to

choose students subject to its being fair, transparent and

non-exploitative.
137

110. Section 12(1)(c) read with Section 2(n)(iv) of the Act

never envisages any distinction between unaided minority

schools and non-minority schools. Constitution Benches of

this Court have categorically held that so far as appropriation

of quota by the State and enforcement of reservation policy is

concerned, there is not much difference between unaided

minority and non-minority educational institutions (Refer

Paras 124, 125 of Inamdar). Further, it was also held that

both unaided minority and non-minority educational

institutions enjoy "total freedom" and can claim "unfettered

fundamental rights" in the matter of appropriation of quota

by the State and enforcement of reservation policy. This

Court also held that imposition of quota or enforcing

reservation policy are acts constituting serious encroachment

on the right and autonomy of such institutions both minority

(religious and linguistic) and non- minority and cannot be

held to be a regulatory measure in the interest of minority

within the meaning of Article 30(1) or a reasonable restriction

within the meaning of Article 19(6) of the Constitution.

Therefore, no distinction or difference can be drawn between

unaided minority schools and unaided non-minority schools
138

with regard to appropriation of quota by the State or its

reservation policy under Section 12(1)(c) of the Act.

111. I am of the view, going by the ratio laid down by Pai

Foundation and Inamdar, to compel the unaided non

minority and minority private educational institutions, to

admit 25% of the students on the fee structure determined by

the State, is nothing but an invasion as well as appropriation

of the rights guaranteed to them under Article 19(1)(g) and

Article 30(1) of the Constitution. Legislature cannot under

the guise of interest of general public "arbitrarily cast burden

or responsibility on private citizens running a private school,

totally unaided". Section 12(1)(c) was enacted not only to

offload or outsource the constitutional obligation of the State

to the private unaided educational institutions, but also to

burden them with duties which they do not constitutionally

owe to children included in Section 2(d) or (e) of the Act or to

their parents.

112. Pai Foundation, in paragraph 57 of the judgment

has stated that in as much as the occupation of education is,

in a sense, regarded as charitable, the Government can
139

provide regulations that will ensure excellence in education,

while forbidding the charging of capitation fee and

profiteering by the institution. Further, it was also pointed

out that in the establishment of an educational institution,

the object should not be to make profit, inasmuch as

education is essentially charitable in nature. However, there

can be a reasonable revenue surplus, which may be

generated by the educational institutions for the purpose of

development of education and their expansion.

Consequently, the mere fact that education in one sense, is

regarded as charitable, the Government cannot appropriate

25% of the seats of the unaided private educational

institutions on the ground that providing education is

charity. Pai Foundation and Inamdar after holding that

occupation of education can be regarded as charitable held

that the appropriation of seats in an unaided private

educational institution would amount to nationalization of

seats and an inroad into their autonomy. The object and

purpose of Section 12(1)(c), it may be noted, is not to reduce

commercialization. Pai Foundation and Inamdar have

clearly denounced commercialization of education.
140

113. Right to establish and administer and run a private

unaided educational institution is the very openness of

personal freedom and opportunity which is constitutionally

protected, which right cannot be robbed or coerced against

his will at the threat of non-recognition or non-affiliation.

Right to establish a private unaided educational institution

and to make reasonable profit is recognized by Article 19(1)(g)

so as to achieve economic security and stability even if it is

for charity. Rights protected under Article 19(1)(g) are

fundamental in nature, inherent and are sacred and valuable

rights of citizens which can be abridged only to the extent

that is necessary to ensure public peace, health, morality etc.

and to the extent of the constitutional limitation provided in

that Article. Reimbursement of fees at the Government rate is

not an answer when the unaided private educational

institutions have no constitutional obligation and their

Constitutional rights are invaded.

114. Private unaided educational institutions are established

with lot of capital investment, maybe with loan and

borrowings. To maintain high standard of education, well

qualified and experienced teachers have to be appointed, at
141

times with hefty salary. Well equipped library, laboratory etc

have also to be set up. In other words considerable money by

way of capital investment and overhead expenses would go

into for establishing and maintaining a good quality unaided

educational institution. Section 12(1)(c), in my view, would

amount to appropriation of one's labour and makes an inroad

into the autonomy of the institution. Unaided educational

institutions, over a period of time, might have established

their own reputation and goodwill, a quantifiable asset.

Nobody can be allowed to rob that without their permission,

not even the State. Section 12(1)(c) is not a restriction which

falls under Article 19(6) but cast a burden on private unaided

educational institutions to admit and teach children at the

state dictate, on a fee structure determined by the State

which, in my view, would abridge and destroy the freedom

guaranteed to them under Article 19(1)(g) of the Constitution.

115. Parliament can enact a social legislation to give effect

to the Directive Principles of the State Policy, but so far as the

present case is concerned, neither the Directive Principles of

the State Policy nor Article 21A cast any duty or obligation on

the unaided private educational institutions to provide free
142

and compulsory education to children of the age of 6 to 14.

Section 12(1)(c) has, therefore, no foundation either on the

Directive Principles of the State Policy or Article 21A of the

Constitution, so as to rope in unaided educational

institutions. Directive Principles of the State Policy as well as

Article 21A cast the constitutional obligation on the State and

State alone. State, cannot offload or outsource that

Constitutional obligation to the private unaided educational

institutions and the same can be done only by a

constitutional provision and not by an ordinary legislation.

116. Articles 41, 45 and 46 of Part IV of the Constitution

cast the duty and constitutional obligations on the State

under Article 21A, apart from other constitutional principles

laid down by Pai Foundation as well as Inamdar. Section

12(1)(c) has neither the constitutional support of Article 21A,

nor the support of Articles 41, 45 or 46, since those

provisions cast duty only on the State and State alone. The

policies laid down under Articles 41, 45 and 46 can always be

achieved by carrying out necessary amendment to the

fundamental rights. However, so far as the present case is

concerned, Article 21A has been enacted to cast a
143

constitutional obligation on the state and a duty upon the

State under Articles 41, 45 and 46. I have pointed out that it

is to get over such situations and for the removal of such

obstacles several constitutional amendments were

necessitated which I have extensively dealt with in Part II of

my judgment.

117. Section 12(1)(c) seeks to achieve what cannot be

achieved directly especially after the interpretation placed by

Pai Foundation and Inamdar on Article 19(1)(g) and Article

30(1) of the Constitution. Inamdar has clearly held that

right to set up, and administer a private unaided educational

institution is an unfettered right, but 12(1)(c) impose fetters

on that right which is constitutionally impermissible going by

the principles laid down by Pai Foundation and Inamdar.

Section 12(1)(c), in my view, can be given effect to, only on

the basis of principles of voluntariness and consensus laid

down in Pai Foudnation and Inamdar or else, it may violate

the rights guaranteed to unaided minority and non-minority

institutions.

118. Constitution of India has expressly conferred the

power of judicial review on Courts and the Legislature cannot
144

disobey the constitutional mandate or the constitutional

principle laid down by Courts under the guise of social

inclusiveness. Smaller inroad like Section 12(1)(c) may lead

to larger inroad, ultimately resulting in total prohibition of the

rights guaranteed under Articles 19(1)(g), 29(2) and 30(1) as

interpreted by the Pai Foundation and Inamdar. Court, in

such situations, owe a duty to lift the veil of the form and

appearance to discover the true character and nature of the

legislation and if it has the effect of bypassing or ignoring the

constitutional principles laid down by the Constitutional

Courts and violate fundamental rights, the same has to be

nullified.

119. Pai Foundation and Inamdar have not laid down

any new constitutional principle, but only declared what the

law is. Constitutional principles laid by courts get

assimilated in Articles 19(1)(g), 29(2) and 30(1) and can be

undone not by legislation, but only by constitutional

amendments. The object to be achieved by the legislation

may be laudable, but if it is secured by a method which

offends fundamental rights and constitutional principles, the

law must be struck down as unconstitutional. The
145

constitutional provision like Article 19(1)(g) is a check on the

exercise of legislative power and it is the duty of the

constitutional court to protect the constitutional rights of the

citizens against any encroachment, as it is often said,

"smaller inroad may lead to larger inroad and ultimately

resulting into nationalization or even total prohibition."

Section 12(1)(c), if upheld would resurrect Unni Krishnan

scheme which was nullified by Pai Foundation and

Inamdar.

120. I am, therefore, of the view that so far as unaided

educational institutions both minority and non-minority are

concerned the obligation cast under Section 12(1)(c) is only

directory and the said provision is accordingly read down

holding that it is open to the private unaided educational

institutions, both minority and non-minority, at their volition

to admit children who belong to the weaker sections and

disadvantaged group in the neighbourhood in their

educational institutions as well as in pre-schools.

(B) Aided Educational Institutions, minority and non-
minority:
146

121. Section 12(1)(b) deals with the schools receiving aid or

grants to meet whole or part of its expenses from the

appropriate government or local authority. Those schools are

bound to provide free and compulsory elementary education

to such proportion of children subject to a minimum of 25%

depending upon its annual recurring aid or grants so

received. Pai Foundation has clearly drawn a distinction

between aided private educational institutions and unaided

private educational institutions both minority and non-

minority. So far as private aided educational institutions,

both minority and non-minority are concerned, it has been

clearly held in Pai Foundation that once aid is provided to

those institutions by the Government or any state agency, as

a condition of grant or aid, they can put fetters on the

freedom in the matter of administration and management of

the institution. Aided institutions cannot obtain the extent of

autonomy in relation to the management and administration

as would be available to a private unaided institution. Pai

Foundation after referring to St. Stephen judgment and

Articles 29 and 30 held that even if it is possible to fill up all

the seats with minority group the moment the institution is

granted aid the institution will have to admit students from
147

non-minority group to a reasonable extent without

annihilating the character of the institution. In St. Stephen

case which I have already dealt with in the earlier paragraphs

of the judgment, the Court held that the State may regulate

intake in a minority aided educational institution with due

regard to the need of the community of that area where the

institution is intending to serve. However, it was held in no

case such intake shall exceed 50% of the annual admission.

Minority aided educational institutions, it was held, shall

make available at least 50% of the annual admission to the

members of the communities other than minority community.

The Court also held by admitting a member of a non minority

into a minority institution, it does not shed its character and

cease to be a minority institution and such "sprinkling of

outsiders" would enable the distinct language, script and

culture of a minority to be propagated amongst non members

of a particular community and would indeed better serve the

object of serving the language, religion and culture of that

minority. I may also add that Section 12(1)(b) equally

safeguards the rights of the members of religious and

linguistic minority communities. Section 2(e) deals with the

`child belonging to weaker section' of the minority
148

communities, religious or linguistic, who would also get the

benefit of Section 12(1)(b) and, therefore, the contention that

Section 12(1)(b), as such, would stand against the interest of

the religious and linguistic minority communities is

unfounded.

122. Applying the principle laid down in Pai Foundation,

Inamdar, St. Stephen and in Re. Kerala Education Bill, I

am of the view that clause 12(1)(b) directing the aided

educational institutions minority and non-minority to provide

admission to the children of the age group of 6 to14 years

would not affect the autonomy or the rights guaranteed under

Article 19(1)(g) or Article 30(1) of the Constitution of India. I,

therefore, reject the challenge against the validity of Section

12(1)(b) and hold that the provision is constitutionally valid.

PART V

123. Private unaided educational institutions, apart from

challenging Section 12(1)(c), have also raised various

objections with regard to other provisions of the Act. Learned

senior counsels appearing for them submitted that Sections

3, 6, 7, 8 and 9 read with Sections 4, 5 and 10 impose duties
149

and obligations upon the appropriate government and local

authority and those sections completely answer and fulfill the

mandate contained in Article 21A as against the State.

Section 3 recognizes the right of the child to free and

compulsory education in a neighbourhood school. Unaided

educational institutions have only a negative duty of not

interfering with the right of the child and not to unreasonably

interfere with the realization of those rights and there is no

obligation to surrender their rights guaranteed under Article

19(1)(g) and Article 30(1), recognized in Pai Foundation and

Inamdar. Children can, therefore, enforce their

constitutional and statutory rights against the educational

institutions run by the State, local authority qua aided

educational institution and not against unaided minority and

non-minority educational institutions. It is so declared.

124. Petitioners have not raised any objection with regard

to prohibition imposed under Section 13 against collecting

the capitation fee which they are bound to follow even on the

declaration of law, by Pai Foundation and Inamdar.

Petitioners submitted that a fair and transparent screening

procedure is being followed by all the schools. So far as
150

Section 14 is concerned, petitioners have submitted that

schools always give opportunity to the child/parent to

produce some authentic proof to ascertain the age of the

child. Petitioners, referring to Section 15, submitted that the

child has to adhere to the academic procedure laid down by

the institutions and there will be no denial of admission to

the children subject to the availability of seats. With regard

to Section 16, it was contended that the prohibition against

holding back any student in any class or expelling any

student regardless of how grave the provocation may be,

imposes unreasonable and arbitrary restriction which would

completely destroy the unique educational system followed by

some of the unaided educational institutions.

125. Shri Chander Uday Singh, senior counsel appearing in

Writ Petition (Civil) No. 83 of 2011, submitted that they are

following the International Baccalaureate system of

education; the syllabus, curriculum, method of instructions

are totally different from other schools. There are no day

scholars, and all the students have to stay in the Boarding

and the school fees is also high. Most of the students

studying in the school are not from the neighbourhood but
151

from all over the country and abroad. School has its own

rules and regulations. Prohibition of holding back and

expulsion of students in an unaided private educational

institution depends upon the academic and disciplinary

procedure laid down by the school and its parent body.

Counsel, referring to Section 17 of the Act, submitted that the

prohibition of physical punishment and mental harassment is

a welcome provision which the schools follow.

126. Learned senior counsel also submitted that some of

their schools are not affiliated or recognized by any State

Education Board or the Board constituted by the Central

Government or the Indian Council of Secondary Education

etc. and those schools generally follow the rules laid down by

the recognizing body and are, therefore, unable to fulfill the

norms and standards specified in the schedule referred to in

Section 19.

127. Counsel appearing for the unaided institutions

contended that the curriculum and evaluation procedure laid

down by the body affiliating or recognizing the institutions are

being followed by them and the provisions stipulated in

Section 29(2) are generally being adhered to by their schools.
152

With regard to Section 23 of the Act, counsels submitted that

some of the unaided private educational institutions employ

the teachers from outside the country as it encourages cross-

fertilization of ideas and educational systems and practices

and the qualifications provided by the institutions may not be

as prescribed under Section 23 of the Act and the

qualifications provided therein may not be sufficient for

appointment as teachers in the schools affiliated to

International Baccalaureate system. Learned counsel

appearing for the unaided private educational institutions

also referred to Rules 9, 11 to 15 and 23 and explained how it

affects their autonomy and status of their institutions.

128. I have extensively dealt with the contentions raised

by the unaided private educational institutions and I am of

the view that not only Section 12(1)(c), but rest of the

provisions in the Act are only directory so far as those

institutions are concerned, but they are bound by the

declaration of law by Pai Foundation and Inamdar, like

there shall be no profiteering, no maladministration, no

demand for capitation fee and so on and they have to follow

the general laws of the land like taxation, public safety,
153

sanitation, morality, social welfare etc.

129. I may indicate that so far as the rest of the schools

are concerned, including aided minority and non-minority

educational institutions, they have necessarily to follow the

various provisions in the Act since I have upheld the validity

of Section 12(1)(b) of the Act. Certain objections have also

been raised by them with regard to some of the provisions of

the Act, especially by the aided minority community.

Contention was raised that Sections 21 and 22 of the Act,

read with Rule 3, cast an obligation on those schools to

constitute a School Management Committee consisting of

elected representatives of the local authority which amounts

to taking away the rights guaranteed to the aided minority

schools, under Article 30(1) of the Constitution. Learned

Additional Solicitor General has made available a copy of a

Bill, proposing amendment to Section 21, adding a provision

stating that the School Management Committee constituted

under sub-section (1) of Section 21 in respect of a school

established and administered by minority whether based on

religion or language, shall perform advisory functions only.

The apprehension that the committee constituted under
154

Section 21(1) would replace the minority educational

institution is, therefore, unfounded. [Ref. F.No.1-22009-E.E-4

of Government of India (Annexure A-3)].

130. Petitioners have also raised objections against the

restrictions imposed in following any screening procedure

before admitting children to their schools under Sections 13

or 14 of the Act, which according to the petitioners, takes

away the autonomy of the institutions. Several

representations were received by the Ministry of Human

Resources and Development, Government of India seeking

clarification on that aspect and the Ministry issued a

notification dated 23.11.2009 under Section 35(1) of the Act

laying guidelines to be followed by both unaided and aided

educational institutions. It was pointed out that the object of

the provisions of Section 13(1) read with Section 2(d) is to

ensure that schools adopt an admission procedure which is

non-discriminatory, rational and transparent and the schools

do not subject children and their parents to admission tests

and interviews so as to deny admission. I find no infirmity in

Section 13, which has nexus with the object sought to be

achieved, that is access to education.
155

131. Contention was also raised by them against Section

14(2) which provides that no child shall be denied admission

in a school for lack of age proof which, according to them, will

cause difficulty to the management to ascertain the age of the

child. Section 14 stipulates that the age of a child shall be

determined on the basis of the birth certificate issued in

accordance with the provisions of the Birth, Death and

Marriages Registration Act, 1986, or the other related

documents. The object and purpose of Section 14 is that the

school shall not deny access to education due to lack of age

proof. I find no legal infirmity in that provision, considering

the overall purpose and object of the Act. Section 15 states

that a child shall not be denied admission even if the child is

seeking admission subsequent to the extended period. A

child who evinces an interest in pursuing education shall

never be discouraged, so that the purpose envisaged under

the Act could be achieved. I find no legal infirmity in that

provision.

132. Challenge was also made to Section 16 of the Act

stating that it will lead to indiscipline and also deteriorate the

quality of the education, which I find difficult to agree with
156

looking to the object and purpose of the Act. Holding back in

a class or expulsion may lead to large number of drop outs

from the school, which will defeat the very purpose and object

of the Act, which is to strengthen the social fabric of

democracy and to create a just and humane society.

Provision has been incorporated in the Act to provide for

special tuition for the children who are found to be deficient

in their studies, the idea is that failing a child is an unjust

mortification of the child personality, too young to face the

failure in life in his or her early stages of education. Duty is

cast on everyone to support the child and the child's failure is

often not due the child's fault, but several other factors. No

legal infirmity is found in that provision, hence the challenge

against Section 16 is rejected.

133. Petitioners have not raised any objection with regard

to Section 17, in my view, rightly. Sections 18 and 19 insist

that no school shall be established without obtaining

certificate of recognition under the Act and that the norms

and standards specified in the schedule be fulfilled, if not

already fulfilled, within a stipulated time. There is nothing

objectionable in those provisions warranting our interference.
157

Section 23, in my view, would not take away the freedom of

aided minority educational institutions for the reasons

already stated by us. No infirmity is also found with regard to

Sections 24 to 28 of the Act since the object and purpose of

those provisions are to provide education of satisfactory

quality so that the ultimate object of the Act would be

achieved.

134. Learned counsel also submitted that some of the

aided minority and non-minority educational institutions are

following the curriculum as laid down by independent

recognized Boards such as CBSE, ICSE etc. and they are

competent bodies for laying down such procedures and in

case those schools are compelled to follow the curriculum

and evaluation procedure laid down in Section 29, the

schools would be put to considerable inconvenience and

difficulties and may affect the quality of education.

135. I am of the view that requiring the minority and non-

minority institutions to follow the National Curriculum

Framework or a Curriculum Framework made by the State,

would not abrogate the right under Article 19(1)(g) or Article

30(1) of the Constitution. Requirement that the curriculum
158

adopted by a minority institution should comply with certain

basic norms is in consonance with the values enshrined in

the Constitution and cannot be considered to be violative of

the rights guaranteed to them under Article 30(1). Further,

the curriculum framework contemplated by Section 29(1)

does not subvert the freedom of an institution to choose the

nature of education that it imparts, as well as the affiliation

with the CBSE or other educational boards. Over and above,

what has been prescribed by those affiliating or recognizing

bodies is that these schools have also to follow the

curriculum framework contemplated by Section 29(1) so as to

achieve the object and purpose of the Act. I, therefore, find

no infirmity in the curriculum or evaluation procedure laid

down in Section 29 of the Act.

136. Section 30 of the Act which provides that no child

shall be required to pass any Board examination till the

completion of elementary education and that on completion of

elementary education, the child shall be awarded a certificate.

Education is free and compulsory for the children of the age 6

to 14 years and the object and purpose is to see that children

should complete elementary education. If they are subjected
159

to any Board Examination and to any screening procedure,

then the desired object would not be achieved. The object

and purpose of Section 30 is to see that a child shall not be

held back in any class so that the child would complete his

elementary education. The Legislature noticed that there are

a large number of children from the disadvantaged groups

and weaker sections who drop out of the schools before

completing the elementary education, if promotion to higher

class is subject to screening. Past experience shows that

many of such children have dropped out of the schools and

are being exploited physically and mentally. Universal

Elementary Education eluded those children due to various

reasons and it is in order to curb all those maladies that the

Act has provided for free and compulsory education. I,

therefore, find no merit in the challenge against those

provisions which are enacted to achieve the goal of universal

elementary education for strengthening the social fabric of

the society.

137. Counsel appearing for some of the aided minority

institutions raised a doubt as to whether the Act has got any

impact on the Freedom of Religion and Conscience
160

guaranteed under Article 25 insofar as it applies to

institutions run by a religious denomination. It was clarified

by the Union of India that the Act would apply to institutions

run by religious denominations in case the institution

predominantly offers primary education either exclusively or

in addition to religious instruction. It was pointed out that

where the institution predominantly provides religious

instructions like Madrasas, Vedic Pathshalas etc. and do not

provide formal secular education, they are exempted from the

applicability of the Act. The Act, therefore, does not interfere

with the protection guaranteed under Articles 25 and 26 of

the Constitution and the provisions in the Act in no way

prevent the giving of religious education to students who wish

to take religious education in addition to primary education.

Article 25 makes it clear that the State reserves the right to

regulate or restrict any economic, financial, political or other

secular activities which are associated with religious practice

and also states that the State can legislate for social welfare

and reform, even though by doing so it would interfere with

the religious practices. Madrasas and Vedic Pathshalas, as I

have already indicated, predominantly provide religious

instruction and do not provide formal secular education and,
161

hence, they are exempted from the applicability of the Act.

The Central Government has now issued Guidelines dated

23.11.2010 under Section 35(1) of the Act clarifying the above

position. The operative part of the guidelines reads as

under:

"3. Institutions, including Madrasas and
Vedic Pathshalas, especially serving religious and
linguistic minorities are protected under Articles 29
and 30 of the Constitution. The RTE Act does not
come in the way of continuance of such
institutions, or the rights of children in such
institutions."

Madrasas, Vedic Pathshalas and similar institutions serving

religious and linguistic minorities as such are, therefore,

protected under Articles 29 and 30 of the Constitution from

the rigour of the Act.

138. The Act has now brought in the concept of public-

private partnership for achieving the goal of Universal

Elementary Education. It also stresses upon the importance

of preparing and strengthening the schools to address all

kinds of diversities arising from inequalities of gender, caste,

language, culture, religious or other disabilities. The concept

of neighbourhood schools has also been incorporated for the

first time through a legislation and the right of access of the
162

children to elementary education of satisfactory and equitable

quality has also been ensured. The duties and

responsibilities of the appropriate government, local

authorities, parents, schools and teachers in providing free

and compulsory education, a system for protection of the

right of children and a decentralized grievance mechanism

has been provided by the Legislature. Obligation has also

been cast on the State and the local authority to establish

neighbourhood schools within a period of three years from

the commencement of the Act and the Central Government

and the State Governments have concurrent responsibilities

for providing funds for carrying out all the provisions of the

Act and the duties and responsibilities cast on the local

authorities as well. A provision has also been made in the

Act for pre-school education for children above the age of

three years. The purpose is to prepare them for elementary

education and to provide early childhood care and education

for all children until they complete the age of six years and

the appropriate government has to take necessary steps for

providing free pre-school education for such children.

Further, the Act also cast a duty on every parent or guardian

to admit or cause to be admitted his or her child or ward, as
163

the case may be, for an elementary education in the

neighbourhood school, which is in conformity with Article

51A(k) of the Constitution.

139. The State has played a dominant role in providing

educational services through the Government schools, largely

managed by State Governments and local bodies, as well as

through privately managed but publicly funded schools called

government-aided schools. These aided schools are operated

by charitable trusts, voluntary organizations, and religious

bodies but receive substantial funding from the government.

According to the Indian Human Development Survey (IHDS),

2005 about 67% of students attend government schools,

about 5% attend government-aided schools, and 24% attend

private schools. Convents and Madrasas account for about

1-2%. The survey conducted by IHDS indicates that in 2005

about 21% of rural and 51% of urban children were enrolled

in private schools. Part of this increase in private school

enrolment has come about through a decline in enrolment in

government-aided schools. In 1994, nearly 22% of rural

children were enrolled in government-aided schools. By

2005, this declined to a bare 7% in rural areas and 5% in
164

urban areas. At an all India level, 72% of children are

enrolled in government schools, and about 28% are in private

schools. The survey further indicates that the children

between 6-14 years old, about 40% participated in private

sector education either through enrolment in private school

(20%), through private tuition (13%), or both (7%). The

growing preference for private schooling and the reliance on

private tutoring, has to be seen in the context of differences

in admission of children in government and private schools.

The quality of education in government schools, due to

various reasons, has gone down considerably. The Act is also

envisaged on the belief that the schools run by the

appropriate government, local authorities, aided and

unaided, minority and non-minority, would provide

satisfactory quality education to the children, especially

children from disadvantaged and weaker sections.

140. Private aided educational institutions, though run

on aid and grant provided by the State, generally the

payment to such schools is not performance oriented. The

State Governments provide 100% salary to the teachers on its

roll on monthly basis and some State Governments would
165

provide 90%. Generally, the State Governments do not

provide capital cost either for construction or for repair and

whenever these schools are aided, the school fee is regulated

and is generally equal to the fee prevailing in the government

schools. The recruitment of teaches by these schools is also

subject to the Government regulation like inclusion of a

representative of the Government in the selection committee,

or the appointment being subject to the approval of the

Government.

141. Currently, all taxes in India are subject to the

education cess, which is 3% of the total tax payable. With

effect from assessment year 2009-10, Secondary and Higher

Secondary Education Cess of 1% is applicable on the subtotal

of taxable income. The proceeds of the cess are directed to a

separate non lapsable fund called Prarambhik Shiksha Kosh

(PSK), setup by Government of India, to exclusively cater to

the elementary education in India. This fund is under the

control of the Ministry of Human Resource and Development

(MoHRD) and is typically utilized for its flagship programmes

Sarva Sikksha Abhiyaan (SSA) and the Mid-day Meal

Scheme (MDMS).
166

142. The statistics would indicate that out of the

12,50,775 schools imparting elementary education in the

country in 2007-08, 80.2% were all types of government

schools, 5.8 % private aided schools and 13.1% private

unaided schools. Almost 87.2% of the schools are located in

the rural areas. In the rural areas the proportion of private

unaided schools is only 9.3% and that of aided schools is

4.7%. However, in the urban areas, the percentage of private

unaided and aided schools are as high as 38.6% and 13.4%

respectively.

143. Out of the total students enrolled in primary classes

in 2007-08 about 75.4, 6.7 and 17.8% are enrolled in

government, aided and unaided schools. The total number of

teachers working in these schools in 2007-08 was 56,34,589

of which 69.3, 10.4 and 20.7% are teaching in government,

aided and private schools, the average number of teachers

per school being 3.9, 8.3 and 6.7% respectively. The

statistics would indicate that the Government schools have

the highest percentage of teachers who are professionally

trained at 43.4%, followed by aided school (27.8%) and

unaided private schools (only 2.3%). However, the learning
167

achievements are higher in private schools compared to

Government schools. Going through the objects and reasons

of the Act, the private unaided educational institutions are

roped in not due to lack of sufficient number of schools run

by the appropriate Government, local authorities or aided

educational institutions, but basically on the principle of

social inclusiveness so as to provide satisfactory quality

education. Some of the unaided educational institutions

provide superior quality education, a fact conceded and it is a

constitutional obligation of the appropriate Government, local

authority and aided schools not only to provide free and

compulsory education, but also quality education.

144. Positive steps should be taken by the State

Governments and the Central Government to supervise and

monitor how the schools which are functioning and providing

quality education to the children function. Responsibility is

much more on the State, especially when the Statute is

against holding back or detaining any child from standard I

to VIII.

145. Mr. Murray N. Rothbard, an eminent educationist and

Professor in Economics, in his Book "Education: Free and
168

Compulsory" [1999, Ludurg von Mises Institute, Auburn,

Aliana] cautioned that progressive education may destroy the

independent thought in the child and a child has little chance

to develop his systematic reasoning powers in the study of

definite courses. The Book was written after evaluating the

experiences of various countries, which have followed free

and compulsory education for children for several years.

Prohibition of holding back in a class may, according to the

author, result that bright pupils are robbed of incentive or

opportunity to study and the dull ones are encouraged to

believe that success, in the form of grades, promotion etc.,

will come to them automatically. The author also questioned

that since the State began to control education, its evident

tendency has been more and more to act in such a manner

so as to promote repression and hindrance of education,

rather than the true development of the individual. Its

tendency has been for compulsion, for enforced equality at

the lowest level, for the watering down of the subject and

even the abandonment of all formal teaching, for the

inculcation of obedience to the State and to the "group,"

rather than the development of self-independence, for the

deprecation of intellectual subjects.
169

146. I am of the view that the opinions expressed by the

academicians like Rothbard command respect and cannot be

brushed aside as such because, much more than anything,

the State has got a constitutional responsibility to see that

our children are given quality education. Provisions of the

statute shall not remain a dead letter, remember we are

dealing with the lives of our children, a national asset, and

the future of the entire country depends upon their

upbringing. Our children in the future have to compete with

their counter-parts elsewhere in the world at each and every

level, both in curricular and extra-curricular fields. Quality

education and overall development of the child is of prime

importance upon which the entire future of our children and

the country rests.

147. The legislation, in its present form, has got many

drawbacks. During the course of discussion, the necessity

of constituting a proper Regulatory Body was also raised so

that it can effectively supervise and monitor the functioning

of these schools and also examine whether the children are

being provided with not only free and compulsory education,

but quality education. The Regulatory authority can also
170

plug the loopholes, take proper and steps for effective

implementation of the Act and can also redress the

grievances of the children.

148. Learned Attorney General for India has favoured the

setting up of an Adjudicatory/Regulatory Authority to

determine the question whether compliance with Section

12(1)(b) and Section 12(1)(c) will have an adverse impact on

the financial viability of the school, and if so, to suggest

remedies and to deal with issues like expulsion etc.

Learned Attorney General indicated the necessity of a

statutory amendment if the Regulatory/Adjudicatory body

has to be set up under the Act. Proper adjudication

mechanism may also pave the way for a successful and

effective public-private partnership for setting up educational

institutions of best quality so that our children will get

quality education. I am sure that the Government will give

serious attention to the above aspect of the matter which are

of prime importance since we are dealing with the future of

the children of this country.

PART VI
171

CONCLUSIONS

1. Article 21A casts an obligation on the State to provide

free and compulsory education to children of the age of

6 to 14 years and not on unaided non-minority and

minority educational institutions.

2. Rights of children to free and compulsory education

guaranteed under Article 21A and RTE Act can be

enforced against the schools defined under Section 2(n)

of the Act, except unaided minority and non-minority

schools not receiving any kind of aid or grants to meet

their expenses from the appropriate governments or

local authorities.

3. Section 12(1)(c) is read down so far as unaided non-

minority and minority educational institutions are

concerned, holding that it can be given effect to only on

the principles of voluntariness, autonomy and

consensus and not on compulsion or threat of non-

recognition or non-affiliation.

4. No distinction or difference can be drawn between

unaided minority and non-minority schools with regard
172

to appropriation of quota by the State or its reservation

policy under Section 12(1)(c) of the Act. Such an

appropriation of seats can also not be held to be a

regulatory measure in the interest of the minority within

the meaning of Article 30(1) or a reasonable restriction

within the meaning of Article 19(6) of the Constitution.

5. The Appropriate Government and local authority have to

establish neighbourhood schools as provided in Section

6 read with Sections 8 and 9, within the time limit

prescribed in the Statute.

6. Duty imposed on parents or guardians under Section

10 is directory in nature and it is open to them to admit

their children in the schools of their choice, not

invariably in the neighbourhood schools, subject to

availability of seats and meeting their own expenses.

7. Sections 4, 10, 14, 15 and 16 are held to be directory in

their content and application. The concerned

authorities shall exercise such powers in consonance

with the directions/guidelines laid down by the Central

Government in that behalf.
173

8. The provisions of Section 21 of the Act, as provided,

would not be applicable to the schools covered under

sub-Section (iv) of clause (n) of Section 2. They shall

also not be applicable to minority institutions, whether

aided or unaided.

9. In exercise of the powers conferred upon the

appropriate Government under Section 38 of the RTE

Act, the Government shall frame rules for carrying out

the purposes of this Act and in particular, the matters

stated under sub-Section (2) of Section 38 of the RTE

Act.

10. The directions, guidelines and rules shall be framed by

the Central Government, appropriate Government

and/or such other competent authority under the

provisions of the RTE Act, as expeditiously as possible

and, in any case, not later than six months from the

date of pronouncement of this judgment.

11. All the State Governments which have not constituted

the State Advisory Council in terms of Section 34 of the

RTE Act shall so constitute the Council within three

months from today. The Council so constituted shall
174

undertake its requisite functions in accordance with the

provisions of Section 34 of the Act and advise the

Government in terms of clauses (6), (7) and (8) of this

order immediately thereafter.

12. Central Government and State Governments may set

up a proper Regulatory Authority for supervision and

effective functioning of the Act and its implementation.

13. Madrasas, Vedic Pathshalas etc. which predominantly

provide religious instructions and do not provide for

secular education stand outside the purview of the Act.

149. The Writ Petitions are disposed of as above. This

Judgment would have prospective operation and would apply

from the next academic year 2012-13 onwards. However,

admissions already granted would not be disturbed. We

record our deep appreciation for the valuable assistance

rendered by the counsel appearing for the both sides.

.......................................J.
(K. S. RADHAKRISHNAN)

New Delhi;
April 12, 2012
175

ITEM NO.1A COURT NO.1 SECTIONS PIL & X

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

WRIT PETITION (CIVIL) NO.95 OF 2010

SOCIETY FOR UN-AIDED P.SCHOOL OF RAJ. Petitioner(s)

VERSUS

U.O.I & ANR. Respondent(s)

With Writ Petition (C) No.98 of 2010
Writ Petition (C) No.126 of 2010
Writ Petition (C) No.137 of 2010
Writ Petition (C) No.228 of 2010
Writ Petition (C) No.269 of 2010
Writ Petition (C) No.310 of 2010
Writ Petition (C) No.364 of 2010
Writ Petition (C) No.384 of 2010
W.P. (C) No.22 of 2011
W.P. (C) No.24 of 2011
W.P. (C) No.21 of 2011
W.P. (C) No.47 of 2011
W.P. (C) No.59 of 2011
W.P. (C) No.50 of 2011
W.P. (C) No.83 of 2011
W.P. (C) No.88 of 2011
W.P. (C) No.99 of 2011
W.P. (C) No.102 of 2011
W.P. (C) No.104 of 2011
W.P. (C) No.86 of 2011
W.P. (C) No.101 of 2011
W.P. (C) No.115 of 2011
W.P. (C) No.154 of 2011
W.P. (C) No.126 of 2011
W.P. (C) No.118 of 2011
W.P. (C) No.186 of 2011
W.P. (C) No.148 of 2011
W.P. (C) No.176 of 2011
W.P. (C) No.205 of 2011
W.P. (C) No.238 of 2011
W.P. (C) No.239 of 2011

Date: 12/04/2012 These Matters were called on for Judgement
today.
...2/-
176

- 2 -

For Petitioner(s) Dr. Rajeev Dhavan,Sr.Adv.
In WP 95/10,98/10, Ms. Shobha,Adv.
126/10,137/10 & Ms. Bijoylakshmi Das,Adv.
228/10: Ms. Hema Shekhawat,Adv.
Ms. Indira Ramesh,Adv.
Mr. Raghav Shankar,Adv.
Mr. Vedanta Kumar,Adv.
Mr. Abeer Kumar,Adv.
Mr. Amit Mittal,Adv.

In WP 269/10 Mr. T.R. Andhyarujina,Sr.Adv.
Mr. Romy Chacko,Adv.
Mr. Ambar Qamaruddin,Adv.

In WP 310/10 & Mr. Vikash Singh,Sr.Adv.
59/2011: Mr. Pukhrambam Ramesh Kumar,Adv.
Ms. Shobana Masters,Adv.
Mr. Rahul Dhawan,Adv.
Mr. Vishesh Issar,Adv.
Mr. Basavaraj,Adv.
Mr. Akshay Arora,Adv.

In WP 364/10 Mr. P.I. Jose,Adv.
Mr. Anupam Mishra,Adv.
Mr. B.K. Mishra,Adv.
Mr. Vivek Kandari,Adv.

In WP 384/10 Mr. Achintya Dvivedi,Adv.
Mr. Neeraj Shekhar,Adv.

In WP 21/11 Mr. Anupam Lal Das,Adv.
Mr. Arpit Gupta,Adv.

In WP 22/11 Ms. Madhvi Divan,Adv.
Mr. Sanjeev K. Kapoor,Adv.
Mr. Nitin Massey,Adv.
Ms. Saman Ahsan,Adv.
for M/s. Khaitan and Co.,Advs.

In WP 24/11 Dr. Rajiv Dhawan,Adv.
Mr. Sushil D. Salwan,Adv.
Mr. Vedanta Varma,Adv.
Mr. Abeer Kumar,Adv.
for M/s. Karanjawala and Co.,Advs.
...3/-
177

- 3 -

In WP 47/11 Mr. Naveen R. Nath,Adv.
Mr. Darpan K.M.,Adv.
Ms. Lalit Mohini Bhat,Adv.
Ms. Amrita Sharma,Adv.

In WP 50/11: Mr. T.R. Andhyarujina,Sr.Adv.
Mr. Ambar Qamaruddin,Adv.
Mr. Romy Chacko,Adv.

In WP 83/11: Mr. Vinay Navare,Adv.
Mr. Keshav Ranjan,Adv.
Mr. Abha R. Sharma,Adv.

In WP 88/11: Mr. Vijay Kumar,Adv.
Mr. Pankaj Kumar,Adv.
Mr. Vishwajit Singh,Adv.

In WP 99/11: Mr. P.D. Gupta,Adv.
Mr. Kamal Gupta,Adv.
Mr. Gagan Gupta,Adv.

In WP 102/11: Mr. Sachin J. Patil,Adv.
Ms. Chandan Ramamurthi,Adv.

In WP 86/11 & Mr. Soumya Chakraborty,Adv.
WP 101/2011: Mr. K.K. Jairpuriar,Adv.

In WP 148/2011: Mr. Anuj Puri,Adv.
Mr. Kunal Verma,Adv.

In WP 104/11: Mr. K. Pararasan,Sr.Adv.
Mr. V. Balaji,Adv.
Ms. Aarthi Rajan,Adv.
Mr. Zoheb Hossain,Adv.
Mr. Rakesh K. Sharma,Adv.
Mr. D.S. Mahra,Adv.
Mr. Satish Parasaran,Adv.

In WP 115/2011: Mr. Shekhar Naphade,Sr.Adv.
Mr. C. Rshmikant,Adv.
Mr. Gaurav Joshi8,Adv.
Mr. Mahesh Agarwal,Adv.
Mr. Rishi Agarwal,Adv.
Mr. E.C. Agrawala,Adv.
Mr. Piyush Raheja,Adv.
Ms. Radhika Gautam,Adv.
Mr. Ankit Shah,Adv.
...4/-
178

- 4 -

In WP 118/2011: Mr. K. Parasaran,Sr.Adv.
Mr. R. Balasubramanian,Sr.Adv.
Mr. V. Balaji,Adv.
Mr. A. Subba Rao,Adv.
Mr. Narendra Kumar,Adv.

In WP 154/2011 Mr. D.K. Pandey,Adv.
Mr. Amit Pawan,Adv.

In WP 126/2011 Mr. B.D. Das,Adv.
Mr. Manoj V. George,Adv.
Ms. Shilpam George,Adv.
Mr. N. Neyyappam,Adv.
Mr. Rauf Rahim,Adv.

In WP 176/2011: Mr. Shekhar Naphade,Sr.Adv.
Mr. P. Ramesh Kumar,Adv.
Mr. Rahul Dhawan,Adv.
Mr. Vishesh Issar,Adv,.
Ms. Shobana Masters,Adv.
Mr. Anant Bhushan,Adv.

In WP 205/2011: Mr. R. Balasubramanian,Sr.Adv.
Mr. V. Balaji,Adv.
Mr. Xavier Arulraj,Adv.
Mr. C. Kannan,Adv.
Mr. Rakesh K. Sharma,Adv.

In WP 186/2011: Mr. B.D. Das,Adv.
Mr. Manoj V. George,Adv.
Mr. Aniruddha P. Mayee,Adv.

In WP 238/2011 & Mr. S. Ravi Shankar,Adv.
WP 239/2011: Mr. R. Yamunah Nachiar,Adv.
Mr. Sharath,Adv.

For Impleadment: Mr. Vikramjit Banerjee,Adv.
Ms. Shally Bhasin Maheshwari,Adv.
Mr. Rishi Maheshwari,Adv.

Dr. M.P. Raju,Adv.
Dr. Ashwani Bhardwaj,Adv.

Ms. Prabha Swami,Adv.
...5/-
179

- 5 -

For Intervenor(s): Mr. Shekhar Naphade,Sr.Adv.
Mr. C. Rashmikant,Adv.
Mr. Gaurav Joshi,Adv.
Mr. Mahesh Agarwal,Adv.
Mr. Rishi Agarwal,Adv.
Mr. E.C. Agrawala,Adv.
Mr. Piyush Raheja,Adv.
Ms. Radhika Gautam,Adv.
Mr. Ankit Shah,Adv.

I.A. No.7: Ms. Menaka Guruswamy,Adv.
Mr. Bipin Aspatwar,Adv.
Mr. Mohit Kumar Shah,Adv.

Mr. Huzefa Ahmadi,Adv.
Mr. Pradhuman Gohil,Adv.
Mr. Vikas Singh,Adv.
Mr. S. Hari Haran,Adv.
Ms. Charu Mathur,Adv.

I.A. No.14: Dr. Rajeev Dhavan,Sr.Adv.
Mr. Nikhil Nayyar,Adv.
Mr. T.V.S. Raghavendra Sreyas,Adv.

In I.A. No.15: Mr. Divya Jyoti Jaipuriar,Adv.
Ms. Jyoti Mendiratta,Adv.
Ms. Puja Sharma,Adv.

Mr. Amar Dave,Adv.
Ms. Garima Parshad,Adv.

Mr. K. Gautham,Adv.
Ms. Radhika Gautam,Adv.
Mr. E.C. Agrawala,Adv.

Mr. Aneesh Kumar Gupta,Adv.

Mr. Gopal Sankaranarayanan,Adv.
Mr. Rohit Bhat,Adv.
Mr. Senthil Jagadeesan,Adv.

Mr. Sanjay Kumar Visen,Adv.
Mr. K.N. Mishra,Adv.
Mr. Raman Kumar Srivastava,Adv.

Mr. Ashish Wad,Adv.
M/s. J.S. Wad and Co.,Advs.
...6/-
180

- 6 -

For Respondent(s) Mr. Goolam E. Vahanvati,AG.
Ms. Indira Jaising,ASG.
Mr. Rohit Sharma,Adv.
Mr. Anoopam N. Prasad,Adv.
Mr. Nishanth Patil,Adv.
Ms. Naila Jung,Adv.
Mr. Anandh Kannan,Adv.
Ms. Supriya Jain,Adv.
Mr. S.S. Rawat,Adv.
Ms. Rekha Pandey,Adv.
Mr. I.J. Singh,Adv.
Mr. D.S. Mahra,Adv.

For Maharashtra: Mr. Sanjay V. Kharde,Adv.
Ms. Asha G. Nair,Adv.

For Bihar: Mr. Gopal Singh,Adv.
Mr. Manish Kumar,Adv.

For Puducherry: Mr. V.G. Pragasam,Adv.

For Tamil Nadu: Mr. S. Thananjayan,Adv.

For Andhra Pradesh: Mr. G.N. Reddy,Adv.
Mr. C. Kannan,Adv.

State of Haryana: Mr. Manjit Singh,Addl.Adv.Genl.
Mr. Tarjit Singh,Adv.
Mr. Kamal Mohan Gupta,Adv.

Hon'ble the Chief Justice pronounced His
Lordship's judgement on behalf of Himself and
Hon'ble Mr. Justice Swatanter Kumar disposing of
writ petitions with no order as to costs.

Hon'ble Mr. Justice K.S. Radhakrishnan
pronounced His Lordship's judgement disposing of
writ petitions.

Conclusion (according to majority):

"20. Accordingly, we hold that the Right of
Children to Free and Compulsory Education Act, 2009
is constitutionally valid and shall apply to the
following:
...7/-
181

- 7 -

(i) a school established, owned or controlled
by the appropriate Government or a local
authority;

(ii) an aided school including aided minority
school(s) receiving aid or grants to meet
whole or part of its expenses from the
appropriate Government or the local
authority;
(iii) a school belonging to specified category;
and
(iv) an unaided non-minority school not
receiving any kind of aid or grants to meet
its expenses from the appropriate
Government or the local authority.

However, the said 2009 Act and in particular
Sections 12(1)(c) and 18(3) infringes the
fundamental freedom guaranteed to unaided minority
schools under Article 30(1) and, consequently,
applying the R.M.D. Chamarbaugwalla v. Union of
India [1957 SCR 930] principle of severability,
the said 2009 Act shall not apply to such schools.

21. This judgment will operate from today. In
other words, this will apply from the academic
year 2012-13. However, admissions given by
unaided minority schools prior to the
pronouncement of this judgment shall not be
reopened.

22. Subject to what is stated above, the writ
petitions are disposed of with no order as to
costs."

Interlocutory applications are also disposed
of.

[ T.I. Rajput ] [ Madhu Saxena ]
A.R.-cum-P.S. Assistant Registrar

[Two Signed Reportable Judgements are placed on the file]

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tags for Seats for weaker sections under RTE (Right to Education)valid: Supreme Court of India-Soft copy of the order attached

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