Supreme Court of India
SOCIETY FOR UN-AIDED P.SCHOOL OF RAJASTHANversusU.O.I. & ANR.
- Citation
- 2012 INSC 169
- Decided
- 12 April 2012
- Disposal
- Disposed off
- Bench
- S H KAPADIA
Holding
The Right of Children to Free and Compulsory Education Act, 2009 is constitutionally valid, applies to government, aided and unaided non‑minority schools, but does not apply to unaided minority schools, and Section 12(1)(c) is read down to be voluntary for unaided schools.
Summary
The Supreme Court examined the constitutional validity of the Right of Children to Free and Compulsory Education Act, 2009, particularly sections 3, 12(1)(b) and 12(1)(c), which impose admission and fee‑reimbursement obligations on schools. The petitioners argued that these provisions infringed the fundamental rights of unaided minority and non‑minority schools under Articles 19(1)(g) and 30(1) and violated Article 14. The majority held that the Act is a valid exercise of the State's duty under Article 21A and that it applies to government‑run, aided and unaided non‑minority schools, but, by the doctrine of severability, does not apply to unaided minority schools. Section 12(1)(c) was read down to be applicable only on a voluntary basis for unaided schools, preserving their autonomy. Consequently, the writ petitions seeking to strike down the Act were dismissed, and the Court issued directions for implementing the Act and for framing guidelines on boarding schools.
Issues considered
- The constitutionality of the Right of Children to Free and Compulsory Education Act, 2009
- Whether sections 12(1)(b) and 12(1)(c) violate Article 19(1)(g) – freedom to establish and administer educational institutions
- Whether the Act infringes Article 30(1) – rights of minorities to establish and administer educational institutions
- Whether the provisions contravene Article 14 – equality before law
- Whether the Act is consistent with Directive Principles of State Policy (Articles 41, 45, 46)
- Whether the Act should be read down or severed with respect to unaided minority schools
- Need for guidelines on the applicability of the Act to boarding schools and orphanages
Legislation cited
- Constitution (Eighty-fifth Amendment) Act, 2001s. Article 16(4A)
- Constitution (Eighty-first Amendment) Act, 2000s. Article 16(4)
- Constitution (Eighty‑sixth Amendment) Act, 2002s. Article 21A
- Constitution (Ninety‑third Amendment) Act, 2005s. Article 15(5)
- Constitution (Seventy‑fifth Amendment) Act, 1995s. Article 15(4)
- Right of Children to Free and Compulsory Education Act, 2009s. 12(1)(b), s. 12(1)(c), s. 18(3), s. 3, s. 35
Subjects
Right to EducationArticle 21ASection 12(1)(c)Unaided minority schoolsArticle 19(1)(g)Article 30(1)Constitutional validitySeverabilitySocial inclusionEducation law
Judgment
[2012] 2 S.C.R. 715
SOCIETY FOR UN-AIDED P.SCHOOL OF RAJASTHAN A
v.
U.0.1. & ANR.
(Writ Petition (Civil) No. 95 of 2010)
APRIL 12, 2012
B
[S.H. KAPADIA, CJI., K.S. RADHAKRISHNAN AND
SWATANTER KUMAR JJ.]
Right of Children to Free and Compulsory Education Act,
2009 - ss. 3, 2(n)(iv), 12(1 )(b), 12(1 )(c), 18(3) and 35 - C
Constitutional validity of the Act - Held: The Act is
constitutionally valid - It is enacted in terms of Article 21A of
the Constitution which is child centric and not institution centric
- Object of the Act is to remove the barriers faced by the child
seeking admission to class 1 and not to restrict the freedom D
under Article 19(1)(g) - s. 12(1)(c) is not violative of the right
of unaided non-minority schools provided under Article
19(1)(g) - The right under Article 19(1)(g) is not absolute but
subject to restriction under Article 19(6) - The restrictions
provided under s. 12(1 )(c) would amount to reasonable E
restriction under Article 19(6) and cannot be termed as
unreasonable - s. 12(1)(c) is not violative of Article 14 as it
provides level playing field in the matter of right to education
to children - Sections 12(1 )(c) and 18(3) infringes the
fundamental freedom guaranteed to unaided minority schools F
under Article 30(1) because the right under Article 30(1) is
absolute - The Act is constitutionally valid qua aided minority
and non-minority schools - The Act shall apply to (1) the
schools established owned and controlled by appropriate
Government or local authority (2) aided schools including G
minority and non-minority (3) schools belonging to specified
category and (4) unaided non-minority schools - Applying the
principle of severability, the Act will not apply to the unaided
minority schools - Recommendation made to Government
715 H
716 SUPREME COURT REPORTS [2012] 2 S.C.R.
A to issue appropriate guidelines u/s. 35 clarifying whether the
Act is applicable to boarding schools and orphanages -
Constitution of India, 1950 - Articles 21A, 21, 45, 19(1)(g),
19(6), 14, 29 and 30(1) -Doctrines/Principles - Principle of
severability.
B
Interpretation of Constitution - Interpretation of
Fundamental Rights - Fundamental rights need to be
interpreted in the light of directive principles -While
determining constitutional validity of a law, it is to be kept in
C mind that what is enjoined by Directive Principles, must be
upheld as a reasonable restriction under Article 19(2) to 19(6)
- Constitution of India, 1950 - Fundamental Rights and
Directive Principles of State Policy.
Right of Children to Free and Compulsory Education
D Act, 2009 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 the children of the age 6 to 14 years and
casts an obligation on the State to provide and ensure
E admission, attendance and completion of elementary
education in such a manner that the State may by law
determine.
The present writ petitions were filed questioning the
F constitutional validity of the Act and in particular validity
of ss. 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
G principle of social inclusiveness.
Disposing of the petitions, the Court
HELD:
H
SOCIETY FOR UN-AIDED P.SCHOOL OF 717
RAJASTHAN v. U.0.1.
Per Majority [BY S.H. KAPADIA, CJI. (FOR HIMSELF AND A
SWATANTER KUMAR, J.]:
1. The Right of Children to Free and Compulsory
Education Act, 2009 is constitutionally valid and shall
apply to (i) a school established, owned or controlled by 8
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 C
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 Act and
in particular Sections 12(1)(c) and 18(3) infringes the
fundamental freedom guaranteed to unaided minority
0
schools under Article 30(1) and, consequently, applying
the principle of severability, the Act shall not apply to such
schools. (Para 20] (854-G-H; 855-A-D]
2. There is a power in the Act coupled with the duty
of the State to ensure that only such Government funded E
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. [Para 8] [837-D]
F
3.1. While determining that whether a law
transgresses any constitutional limitation, the first and
foremost principle which has to be kept 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 G
restriction" under Articles 19(2) to 19(6). Thus, the
fundamental rights needs to be interpreted in the light of
the directive principles. [Para 9] [837-H; 838-A-B]
3.2. Fundamental rights have two aspects - they act H
718 SUPREME COURT REPORTS [2012] 2 S.C.R.
A as fetter on plenary legislative powers and, secondly,
they provide conditions for fuller development of the
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
B 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
c Article 21 by the judgments of Supreme 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
o given to the State to provide by law "free and compulsory
education". Article 21A contemplates making of a law by
the State. [Para 9) [838-H; 839-A-D]
3.3. Thus, Article 21A contemplates right to education '
E flowing from the law to be made which is the Act, which
is child centric .and not institution centric. Thus, Article
21A provides that the State shall provide free and
compulsory education to all children of the specified age
in such manner as the State may, by,law, determine. The
F manner in which this obligation will be discharged by the
State has been left to the State to determine by law. The
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. If
G education is an activity which is charitable, the unaided
non-minority educational institution cannot say 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
H 19(1)(g). [Para 9) [839-D-H]
SOCIETY FOR UN-AIDED P.SCHOOL.OF 719
RAJASTHAN v. U.0.1.
3.4. Though subject-wise, Article 21A deals with A
access to education as against right to establish and
administer educational institution in Article 19(1)(g), it
cannot be said 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 B
reasonableness. [Para 1O] (840-8-C]
3.5. All other fundamental rights in Part Ill would be
dependent upon right to life in Article 21 as interpreted
by Supreme Court to include right to live witt. dignity, c
right to education, etc. Whether one adopts the pith and
substance test or the nature and character of the
legislation test or the effect test, one finds that all these
tests have evolved as rules of interpretation only as a
matter of reasonableness. They help to correlate Article D
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 Act, one has to judge the validity of the E
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. lnamdar, it has been held that right to
establish and administer an educational institution falls
under Article 19(1)(g) of the Constitution. [Para 10] (840- F
0-H]
Khudiram Das v. State of West Bengal (1975) 2 SCR
832; Maneka Gandhi v. Union of India (1978) 1 SCC 248 :
1978 (2) SCR 621; Glanrock Estate Private Limited v. State
of Tamil Nadu (2010) 10 SCC 96: 2010 (12) SCR 597; G
*T.M.A. Pai Foundation and Ors. v. State of Kamataka and
Ors. (2002) 8 sec 481 : 2002 (3) Suppl. SCR 587; **P.A.
lnamdar v. State of Maharashtra (2005) 6 SCC 537 : 2005
(2) Suppl. SCR 603- referred to.
H
720 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 3.6. It is true that, as held in TM.A. Pai Foundation as
well as P.A. lnamdar, 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
B 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 Act has been enacted to give effect
to Article 21A. Since Article 19(1)(g) right is not an
C absolute right as Article 30(1 ), the Act cannot be termed ·
as unreasonable. To put an obligation on the unaided
non-minority school to admit 25% children in class I
under Section 12(1)(c) cannot be termed as an
unreasonable restriction. Such a law cannot be said to
D transgress any constitutional limitation. The object of the
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). [Para 10] [841-D-H]
E 3.7. 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
F regulate by law the activities of the private institutions by
imposing reasonable restrictions under Article 19(6). After
the commencement of the Act, by virtue of Section 12(1)(c)
r/w. s. 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
G children who may not be in a position to pay their fees
or charges. 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
H a condition would come within the principle of
SOCIETY FOR UN-AIDED P.SCHOOL OF 721
RAJASTHAN v. U.0.1.
reasonableness in Article 19(6). By virtue of Section 12(2) A
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 B
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 C
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 un;.tided D
schools. [Para 10] [843-C-H; 844-A-E]
4. It is also not correct to say that Section 12(1)(c)
violates Article 14. Section 12(1)(c) inter alia provides for
admission to class I, to the extent of 25% of the strength E
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 empha'sis is on "free and
compulsory education". Earmarking of seats for children
F
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 ievel playing field in the matter of right to
education to children who are prevented from accessing G
education because they do not have the means or their
parents do not have the means to pay for their _fees.
Hence, Section 12(1 )(c) also satisfies the test of
reasonableness, apart from the test of classification in
Article 14. [Para 10) [844-E-H; 845-A-B]
722 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 5. It is true that the judgments in *TMA Pai
Foundation and **P.A. lnamdar_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 Act constituted a
B restriction on that right and if so whether that restriction
was a reasonable restriction under Article 19(6) was not
in issue in those cases. 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
c **P.A. lnamdar was almost a sequel to the directions in
##Islamic Academy 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
o a different weightage than the one which is to be given
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
E admission not to higher education or professional
courses but to Class I. On reading *T.M.A. Pai_Foundation
and **P.A. lnamdar in proper perspective, it becomes
clear that the said principles have been applied in the
context of professional/ higher education where merit
F 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 Act including Section 12(1)(c) in its
G application to unaided non-minority school(s), the same
is saved as reasonable restriction under Article 19(6).
'[Paras 11 and 12) [846-D-H; 851-D-F]
*T.M.A. Pai Foundation and Ors. v. State of Kamataka
H and Ors. (2002) 8 sec 481 : 2002 (3) Suppl. SCR 587; **P.A.
SOCIETY FOR UN-AIDED P.SCHOOL OF 723
RAJASTHAN v. U.0.1.
lnamdar v. State of Maharashtra (2005) 6 SCC 537 : 2005 A
(2) Suppl. SCR 603 - distinguished.
#Unni Krishnan, J.P. v. State of Andhra Pradesh (1993)
1 SCC 645 :1993 (1) SCR 594; ##Islamic Academy of
Education v. State ofKamataka (2003) 6 SCC 697 : 2003 (2) B
Suppl. SCR 474 - referred to.
6.1. The intention of the Parliament as is evident from
Constitution (Ninety-Third) Amendment Act, 2005
whereby Article 15 was amended is that the minority
educational institution referred to in Article 30(1) is a C
separate category of institutions which needs protection
of Article 30(1) and viewed in that light, the unaided
minority school(s) needs special protection under Article
30(1). Article 30(1) is not conditional as Article 19{1)(g). In D
a sense, it is absolute as the Constitution framers thought
that it was the duty of the Government of the day to
protect the minorities in the matter of preservation of
culture, language and script via establishment of
educational institutions for religious and charitable
purposes. Reservations of 25% in such unaided minority E
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 Act including Section 12(1)(c) violates F
the right conferred on such unaided minority schools
under Article 30(1). [Para 19] [854-A-D]
6.2. However, so far as aided minority schools are
concerned, Article 29(2) has to be kept in mind. Article G
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 H
724 SUPREME COURT REPORTS [2012] 2 S.C.R.
A maintained or aided by the State. The 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, it is held that the
Act is constitutionally valid qua aided minority schools.
B [Para 19] [854-D-F]
7. There are boarding schools and orphanages in
several parts of India. In those institutions, there are day
scholars and boarders. The Act could only apply to day
c scholars. It cannot be extended to boarders. To put the
matter beyond doubt, it is recommended that appropriate
guidelines be issued under Section 35 of the Act
clarifying the above position. [Para 13] [851-G-H]
Rev. Sidhajbhai Sabhai v. State of Bombay (1963) SCR
D 837 - relied on.
State of Bihar v. Maharajadhiraja Sir Kameshwar Singh
of Darbhanga (1952) SCR 889 - referred to.
E Dennis v. United States (1950) 341 US 494; R. v. Burah
(1878) 5 I.A. 178 - referred to.
P~r Minority (BY K.S. RADHAKRISHNAN, J.)
1.1. Article 21A of the Constitution casts an obligation
F 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. [Para
148 (1)] [828-G; 829-A]
G 1.2. Rights of children to free and compulsory
education guaranteed under Article 21A and Right of
Children to Free and Compulsory Education Act, 2009
can be enforced against the schools defined under
Section 2(n) of the Act, except unaided minority. and non-
H minority schools not receiving any kind of aid or grants
SOCIETY FOR UN-AIDED P.SCHOOL OF 725
RAJASTHAN v. U.0.1.
to meet their expenses from the appropriate A
Governments or local authorities. [Para 148 (2)) [829-B]
1.3. 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 8
the principles of voluntariness, autonomy and consensus
and not on compulsion or threat of non-recognition or
non-affiliation. [Para 148 (3)) [829-D]
1.4. No distinction or difference can be drawn
between unaided minority and non-minority schools with C
regard to appropriation of quota by the State or its
reservation policy under Section 12(1 )(c) of the Act Such
an appropriation of seats can also not be held to be a
regulatory measure in the interest of the minority within
the meaning of Article 30(1) or a reasonable restriction D
within the meaning of Article 19(6) of the Constitution.
[Para 148 (4)] [829-E-F]
1.5. The Appropriate Government and local authority
have to establish neighbourhood schools as provided in E
Section 6 read with Sections 8 and 9, within the time limit
prescribed in the statute. [Para 148 (5)] [829-G]
1.6. In the jurisdictions where socio-economic rights
have been given the status of constitutional rights, those F
rights are available only against State and not again~t
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 G
beneficiaries should not make an inroad into the rights
guaranteed to other citizens. [Para 57] [781-G-H; 782-A]
1.7. Articles 21A, 45, 51A(k) of the Constitution and
Section 12 of the Act and various International
Conventions deal with the obUg_ations and H
726 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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,
B in that process, compulsorily co-opting, private
educational institutions as well. A shift in State's
functions, to non-state actors in the field of health care,
education, social services etc. has been keenly felt due
to liberalization of economy and privatization of State
c functions. [Para 89] [796-H; 797-A-C]
1.8. Article 29 of the Constitution 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,
0
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
E 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. [Para 93] [799-
F H; 800-A-C]
1.9. Primary responsibility for children's rights 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
G 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
H protect the rights of the child, but they are, not expected
SOCIETY FOR UN-AIDED P.SCHOOL OF 727
RAJASTHAN v. U.0.1.
to surrender their rights constitutionally guaranteed. A
[Para 95] [800-H; 801-A-B]
1.10. 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 B
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. [Para 96] [801-C-D] c
1.11. 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 D
that constitutional obligation or responsibility is on
private unaided educational institutions also would be
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 E
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. [Para 101] [803-A-D] F
1.12. Article 21A has used the expression "such
manner" wshich means the manner in which the State
has to discharge its constitutional obligation and not
offloading those obligations on unaided educational G
institutions. If the Constitution wanted that obligation to
be shared by·private unaided educational institutions the
same would have been made explicit irt Article 21A.
Further, unamended Article 45 has used the expression
"state shall endeavour ..... for" and when Article 21A was H
728 SUPREME COURT REPORTS [2012) 2 S.C.R.
A 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. [Para 102] [803·
B G-H; 804-A] .
1.13. The purpose and object of the Act is laudable,
that is, social inclusiveness in the fiel~ of elementary
education but the means adopted to achieve that
c objective is faulty and constitutionally impermissible.
Possibly, the object and purpose of the Act could be
achieved by limiting or curtailing the fundamental rights
guaranteed to the unaided non-minority and minority
educational institutions under Article 19(1)(g) and Article
0 30(1) or imposing a positive obligation on them under
Article 21A, but this has not been done in the instant
case. [Para 106] [805-D-E]
1.14. Going by the ratio laid down by *Pai Foundation
and **lnamdar, to compel the unaided non minority and
E 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
F 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
G 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. [Para 111] [809-H; 810-A-C]
H 1.15. Right to establish and administer and run a
SOCIETY FOR UN-AIDED P.SCHOOL OF 729
RAJASTHAN v. U.0.1.
private unaided educational institution is the very A
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 B
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 C
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 D
and their Constitutional rights are invaded. [Para 113]
[810-H; 811-A-D]
1.16. Considerable money by way of capital
investment and overhead expenses would go into for E
establishing and maintaining a good quality unaided
educational institution. Section 12(1)(c) 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
F
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 G
admit and teach children at the State dictate, on a fee
structure determined by the State which would abridge
and destroy the freedom guaranteed to them under
· Article 19(1)(g) of the Constitution. [Para 114] [811-E-H]
1.17. Parliament can enact a social legislation to give H
730 SUPREME COURT REPORTS [2012] 2 S.C.R.
A effect to the Directive Principles of the State Policy, but
so far as the present case is concerned, neither the
Directive Principles of the State Policy nor Article 21A
cast any duty or obligation on the unaided private
educational institutions to provide free and compulsory
B 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
c 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
D legislation. 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. [Paras 115 and 116] [812-A-E]
.E 1.18. 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
F 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 Ill
of the'Constitution, through constitutional amendments.
G [Para 58] [782-B-D]
1.19. The State in order to achieve socio-economic
rights, can remove obstacles by limiting the fundamental
rights through constitutional amendments. Whenever the
Parliament wanted to remove obstacles so as to make
H affirmative action to achieve socio-economic justice
SOCIETY FOR UN-AIDED P.SCHOOL OF 731
RAJASTHAN v. U.0.1.
constitutionally valid, the same has been done by A
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 B
Article 30(1) as explained in *Pai Foundation and
reiterated in **/namdar 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 C
constitutional amendment [Paras 71 and 81] (788-B; 792-
F-H; 793-A]
1.20. Constitutional principles laid down by *Pai
Foundation and **/namdar on Articles 19(1)(g), 29(2) and 0
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 E
**lnamdar because ***Unnikrishnan was the basis for the
introduction of the proposed Article 21A and the deletion
· of clause (3) from that Article. Interpretation given by the
courts on any provision of the Constitution gets inbuilt
in the provisions interpreted, that is, Articles 19(1)(g), 29(2)
F
and 30. [Para 82] [794-B-C]
1.21. The principles laid down in judgments in *Pai
Foundation and **/namdar 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). G
Article 21Awas 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 H
732 SUPREME COURT REPORTS [2012) 2 S.C.R.
·A 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. !
[Para 83] [794-D-F] i
8 1.22. Principles laid down by *Pai Foundation and in
**tnamdar 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
C constitutional principles which cannot be undone by
statutory provisions like Section 12(1)(c), since those
principles get in-built in Article 19(1)(g), Article 29(2) and
Article 30(1) of the Constitution. Further, Parliament, while
enacting Article 21A, never thought it fit to undo those
0 principles and thought it fit to cast the burden on the
State. [Para 88] [796-B-F]
1.23. Section 12(1)(c) seeks to achieve what cannot
be achieved directly especially after the interpretation
placed by *Pai Foundation and **tnamdar on Article
E 19(1)(g) and Article 30(1) of the Constitution. */namdar 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
F down by *Pai Foundation and **tnamdar. Section 12(1)(c)
can be given effect to, only on the basis of principles of
voluntariness and consensus laid down in *Pai
Foudnation and **/namdar or else, it may violate the rights
guaranteed to unaided minority and non-minority
G institutions. [Para 117] [812-H; 813-A-B]
1~24. Constitution of India has expressly conferred
the power of judicial review on courts and the legislature
cannot disobey the constitutional mandate or the
H constitutional principle laid down by courts under the
SOCIETY FOR UN-AIDED P.SCHOOL OF 733
RAJASTHAN v. U.0.1.
guise of social inclusiveness. Smaller inroad like Section A
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 **/namdar, Court, in such situations, owe
a duty to lift the veil of the form and appearance to B
discover the true character and nature of the legislation
and if it has the effect of bypassing or jgnoring the
constitutional principles laid down by the Constitutional
Courts and violate fundamental rights, the same has to
be nullified. [Para 118] [813-C-E] c
1.25. 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
0
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 unconstitutionat Section
12(1 )(c), if upheld would resurrect ***Unni Krishnan
scheme which was nullified by *Pai Foundation and E
**/namdar. [Para 119] [813-F-H; 814-A]
1.26. 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 F
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. [Para G
120] [814-B-C]
1.27. Not only Section 12(1)(c), but rest of the
provisions in the Act are only directory so far as private
unaided institutions are concerned, but they are bound H
734 SUPREME COURT REPORTS [2012] 2 S.C.R.
A by the declaration of law by *Pai Foundation and
**/namdar, like there shall be no profiteering, no
maladministration, no demand for capitation fee and so
on and they have to follow the general laws of the land
like taxation, public safety, sanitation, morality, social
B welfare etc. [Para 128] [818-C-D]
1.28. 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
C 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
0 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. [Para 103] [804-D-F]
E *T.M.A. Pai Foundation and Ors. v. State of Kamataka
and Ors. (2002) 8 SCC 481: 2002 (3) Suppl. SCR 587; **P.A.
lnamdar andOrs. v. State of Maharashtra and Ors. (2005) 5-
SCC 537: 2005 (2) Suppl. SCR 603 - followed
F Ashok Kumar Thakur v. Union of India and Ors. (2008)
6 SCC 1: 2008 (4) SCR 1; S.P. Gupta v. President of India
and Ors. 1981 sec Supp. (1) 87 - relied on.
Indian Medical Association v. Union of India and Ors.
(2011) 7 SCC 179; Ahmedabad St. Xavier's College Society
G and Anr. v. Stateof Gujarat and Anr. (1974) 1 sec 717: 1975
(1) SCR 173; Rev. Sidhajbhai Sabhai and Ors. v. State of
Bombay and Anr. (1963) 3 SCR 837; People's Union for
Democratic Rights and Ors. v. Union of India and Ors. (1982)
3 SCC 235: 1983 (1) SCR 456; Vishaka and Ors. v. State
H
. ··,
SOCIETY FOR UN-AIDED P.SCHOOL OF 735
RAJASTHAN V. U.0.1.
ofRajasthan (1997) 6 SCC 241: 1997 (3) Suppl. SCR 404; A
Consumer Education and· Research Centre and Ors. v. Union
of India and Ors. 1995 (3) SCC 42 : 1995 (1) SCR 626;
Paschim Bahga Khet Majdoor Samity and Ors. v. State of
WestBengal and Anr. 1996 (4) SCC 37 : 1996 (2) Suppl.
SCR 331; Stateof Punjab and Ors. v. Ram Lubhaya Bagga B
and Ors. 1998 (4) SCC 117: 1998 (1) SCR 1120; Social
Jurist, A Lawyers Group v. Government of NCT of Delhi and
Ors. (140) 2007 DLT 698; Dharamshila Hospital and
Research Centre v. Social Jurist and Ors. Judgment of
Supreme Court in SLP (C) No.18599 of 2007 decided on C
25.07 .2011; Olga Tellis and Ors. v. Bombay Municipal
Corporation and Ors. 1985 (3) SCC 545 : 1985 (2) Suppl.
SCR 51; Municipal Corporation of Delhi v. Gurnam Kaur
(1989) 1 SCC 101 : 1988 (2) Suppl. SCR 929; Sodan Singh
and Ors. v. New Delhi Municipal Committee and Ors. 1989 D
(4) SCC 155 : 1989 (3) SCR 1038; Ahmedabad Municipal
Corporation v. Nawab Khan Guiab Khan and Ors. 1997 (11)
· SCC 121 : 1996 (7) Suppl. SCR 548; Bandhua Mukti
Morcha v. Union of India and Ors. 1984 (3) SCC161: 1984
(2) SCR 67; l.R. Coelho (Dead) by LRs v. State of Tamil E
Nadu and Ors. 2007 (2) SCC 1 : 2007 (1) SCR 706; State
of Madras v. Shrimati Champakam Dorairajan 1951 (2) SCR
525; Indra Sawhney v. Union of India aQd Ors. (1992) Supp.
3 SCC 212; Jagdish Lal and Ors. v. State of Haryana and
Ors. (1997) 6 SCC 538; Ajit Singh and Ors. v. State of Punjab F
and Ors. (1999) 7 sec 209: 1999 (2) Suppl. SCR 521; M.
Nagaraj and Ors. v. Union of India (2006) 8 SCC 212: 2006
(7) Suppl. SCR 336; Bengal Immunity Company Limited v.
State of Bihar and Ors. AIR 1955 SC 661: 1955 SCR 603;
People's Union for Civil Liberties (PUCL) and Anr. v. Union G
of India (UOI) and Anr. 2003 (4) sec 399: 2003 (2)
SCR 1136; Avinash Mehrotra v. Union of India and Ors.
2009 (6) SCC 398: 2009 (5) SCR 913 - referred to.
Soobramoney v. Minister of Health (KwaZulu-NataQ 1998 H
736 SUPREME COURT REPORTS [2012] 2 S.C.R.
A (1) SA 765(CC); Government of the Republic of South Africa
and Ors. v. Grootboom and Ors. 2001 (1) SA 46 (CC);
Minister of Health and Ors. v. Treatment Action Campaign
and Ors. (TAC) 2002 (5) SA 721 (CC); Ex parte Chairperson
of the Constitution of the Republic of South Africa 1996 (4)
B SA 744 (CC); Minister of Public Works and Ors. v. Kyalami
Ridge Environmental Association and Ors. 2001 (7) BCLR
652 (CC); President of the Republic of South Africa v.
Modderklip Boerdery (Pty). Ltd. 2005 (5) SA 3 (CC); Brown
v. Board of Education 347 U.S. 483; Cruz def Valle Balle
C Bermudez v.Ministry of Health and Social Action - Case
No.15. 789 Decision No.916 (1999); Wilson v. Medical
Services Commission of British Columbia (53) D.L.R. (4th)
171; Smit v. Al/wright 321 U.S. 649 (1944); Governing Body
orthe Juma Musjid Primary School v. Minister for Education
D (2011) ZACC 13; Crowley v. Ireland (1980)1R 102- referred
to.
2.1. Applying the principle laid down in *Pai'
Foundation, **/namdar, #St. Stephen and in '1#/.Re. Kera/a
E Education Bill, 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
F Constitution of India. Therefore, the challenge against the
validity of Section 12(1)(b) is rejected and it is held that,
the provision is constitutionally valid. [Para 122] [815-F-
G]
2.2. So far as the rest of the schools are concerned,
G including aided minority and non-minority educational
institutions, they have necessarily to follow the various
provisions in the Act since the validity of Section 12(1)(b)
of the Act has been upheld. [Para 129] [818-E, F]
H . *T.M.A. Pai Foundation and Ors. v. State of Kamataka
SOCIETY FOR UN-AIDED P.SCHOOL OF 737
RAJASTHAN v. U.0.1.
and Ors. (2002) 8 SCC 481: 2002 (3) Suppl. SC_R 587; **P.A. A
lnamdar and Ors. v. State of Maharashtra and Ors. (2005) 6
SCC 537: 2005 (2) Suppl. SCR 603; #St. Stephen's College
v. University of Delhi (1992) 1 SCC 558 : 1991 (3) Suppl.
SCR 121; ##Re. Kera/a Education Bill, 1959 SCR 995 -
referred to. B
3. 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, C
whether aided or unaided. The apprehension, of aided
minority community that Sections 21 and 22 of the Act,
read with Rule 3, which cast an obligation on those
schools to constitute a School Management Committee
consisting of elected representatives of the local D
authority would amount to taking away the rights
guaranteed to the aided minority schools under Article
30(1) of the Constitution, is unfounded in view of the 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 E
of a school established and administered by minority
whether based on religion or language, shall perform
advisory functions only. [Paras 148 (8) and 129] [818-F-
H; 819-A; 830-G]
F
4.1. 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. [Para 148 (7)] [830-Bl G
4.2. 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, subji:ct to H
738 SUPREME COURT REPORTS [2012] 2 S.C.R.
A availability of seats and meeting their own expenses.
[Para 148 (6)] [829-H; 830-A)
4.3. The object of the provisions of Section 13(1) r/
w. Section 2(d) is to ensure that schools adopt an
admission procedure which is non-discriminatory,
8
rational and transparent and the schools do not subject
children and their parents to admission tests and
interviews so as to deny admission. There is no infirmity
in Section 13, which has nexus with the object sought to
C be achieved, that is access to education. [Para 130] [819-
D-E]
4.4. The object and purpose of Section 14 is that the
school shall not deny access to education due to lack of
age proof. There is no legal infirmity in that provision,
D 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
E discouraged, so that the purpose envisaged under the
Act could be achieved. There is no legal infirmity in that
provision. [Para 131] [819-G-H; 820-A]
4.5. Holding back in a class or expulsion may lead
F 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
G the child_ren 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
· H often not due the child's fault, but several other factors.
SOCIETY FOR UN-AIDED P.SCHOOL OF 739
RAJASTHAN v. U. 0. I.
No legal infirmity is found in that provision, hence the A
challenge against Section 16 is rejected. [Para 132] [820-
B-E]
4.6. There is infirmity in the curriculum or evaluation
procedure laid down in Section 29 of the Act. Requiring 8
the minority and non-minority institutions to ·follow the
National Curriculum Framework or a Curriculum
Framework made by the State, would not abrogate the
right under Article 19(1)(g) or Article 30(1) of the
Constitution. Requirement that the curriculum adopted by c
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) D
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 E
have also to follow the curriculum framework
contemplated by Section 29(1) so as to achieve the object
and purpose of the Act. [Para 135] [821-B-E]
4.7. The object and purpose of Section 30 is to see
that a child shall not be held back in any class so that F
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 G
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 H
740 SUPREME COURT REPORTS [2012] 2 S.C.R.
A maladies that the Act has provided for free and
compulsory education. Therefore, there is no merit in the
challenge against s. 30 which are enacted to achieve the
goal of universal elementary education for strengthening
the social fabric of the society. [Para 136] (821-H; 822-A-
B C]
5. Madrasas, Vedic Pathsha/as etc. which
predominantly provide religious instructions and do not
provide for secular education stand outside the purview
C of the Act The Act, 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.
0 Article 25 makes it clear that the State reserves the right
tb 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
E doing so it would interfere with the religious practices.
The Central Government has now issued Guidelines
dated 23.11.2010 under Section 35(1) of the Act clarifying
the above position. (Paras 137 and 148 (13)] [822-F-H; 823-
A; 831-8-C]
F 6.1. 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
G when the statute is against holding back or detaining any
child from standard I to VIII. [Para 144] (826-H; 827-A]
"Education: Free and Compulsory" by Murray N.
Rothbard, 1999,Ludurg von Mises Institute, Auburn,
H Aliana - referred to.
SOCIETY FOR UN-AIDED P.SCHOOL OF 741
RAJASTHAN v. U.0.1.
6.2. The legislation, in its present form, has got many A
drawbacks. There is 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, B
but quality education. The Regulatory authority can also
plug the loopholes, take proper steps for effective
implementation of the Act and can also redress the
grievances of the children. [Para 147) [828-8-C]
c
6.3. 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 Act. [Para 148 0
(9)) [830-D]
6.4. 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 Act, as expeditiously as E
possible and, in any case, not later than six months from
the date of pronouncement of this judgment. [Para 148
(10)) [830-E-F]
6.5. All the State Governments which have not F
constituted the State Advisory Council in terms of
Section 34 of the Act shall so constitute the Council ·
within three months from the date of the judgment. The
Council so constituted shall undertake its requisite
functions in accordance with the provisions of Section G
34 of the Act and advise the Government in terms of
clauses (6), (7) and (8) of this order immediately
thereafter. [Para 148 (11)] [830-G-H; 831-A]
6.6. Central Government and State Governments may H
742 SUPREME COURT REPORTS [2012] 2 S.C.R.
A set up a proper Regulatory Authority for supervision and
effective functioning of the Act and its implementation.
[Para 148 (12)] [831-A-Bl ·
,.. Mohini Jain v. State of Kamataka and Ors, (1992) 3 SCC
B 666 : 1992(3) SCR 658; ***UnniKrishnan, J;P. and Ors. v.
State of A.P. and Ors. (1993) 1 sec 645 : 1993 (1) SCR
594; Mithilesh Kumari and Anr. v.. Prer:n Behari Khare (1989)
2 SCC 9.5: 1989 (1) SCR 621; br. Baliram Waman Hirayv.
Justice B. Lentin and Ors. (1988) 4 SCC 419 : 1988 (2)
· c Suppl. SCR 942; Santa Singh v. State of Punjab (1976) 4
SCC 190 : 1977 (1) SCR 229; Ravinder Kumar Shanna v.
State of Assam (1999) 7 SCC 435 : 1999 (2) Suppl.
SCR 339; Islamic Academy of Education and Anr. v. State
of Kamataka and O~. (2003) 6 SCC 697 : 2003 (2) Suppl.
0 SCR 474 - referred to.
Herron v. Rathmines and Rathgar Improvement
Commissioners (1892) AC 498 at p. 502 - referred to.
SOCIETY FOR UN-AIDED P.SCHOOL OF 743
RAJASTHAN v. U.0.1. .
2003 (2) Suppl. SCR 474 Referred to. Para 11 A
(1963) SCR 837 Referred to. Para 18
In the Judgment of K.S. Radhakrishnan, J:
1992 (3) SCR 658 Referred to. . Para 5 B
1993 (1) SCR 594 Referred to. Para 5
(1892) AC 498 Referred to. Para 16
1989 (1) SCR 621 Referred to. Para 16
c
1988 (2) Suppl. SCR 942 Referred to. Para 16
1977 (1) SCR 229 Referred to. Para 16
1999. (2) Suppl. SCR 339 Referred to. Para 16
D
1991 (3) Suppl. SCR 121 Referred to. Para 19
2003 (2) Suppl. SCR 474 Referred to. Para 26
2011 (7) sec 119 Referred to. Para 36
1975 (1) SCR 173 Referred to. Para 36 E
(1963) SCR 837 Referred to. Para 36
1983 (1) SCR 456 Referred to. Para 38
1997 (3) Suppl. SCR 404 Referred to. Para 38 F
1995 (1) SCR 626 Referred to. Para 46
1996 (2) Suppl. SCR 331 Ref~rred to. Para 46
1998 (1) SCR 1120 Referred to. Para 46
G
· (140) 2007 DLT 698 Referred to. Para 46
1985 (2) Suppl. SCR 51 Referred to. Para 47
1988 (2) Suppl. SCR 929 Referred to. Para 47
1989 (3) SCR 1038 Referred to. Para 47 H
744 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 1996 (7) Suppl. SCR 548 Referred to. Para 47
1984 (2) SCR 67 Referred to. Para 48
1998 (1) SA 765 (CC) Referred to. Para 49
2001 (1) SA 46 (CC) Referred to. Para 50
B
2002 (5) SA 721 (CC) Referred to. Para 51
1996 (4) SA 744 (CC) Referred to. Para 52
2001 (7) BCLR 652 (CC) Referred to. Para 53
c
2005 (5) SA 3 (CC) Referred to. Para 53
347 U.S. 483 Referred to. Para 55
(53) D.L.R. (4th) 171 Referred to. Para 56
D 2007 (1) SCR 706 Referred to. Para 60
1951 (2) SCR 525 Referred to. Para 68
2008 (4) SCR 1 Relied on. Para 71
E Referred to. Para 72
(1992) supp. 3 sec 212 Referred to. Para 77
(1997) 6 sec 538 Referred to. Para 78
1999 (2 ) Suppl. SCR 521 Referred to. Para 78
F
2006 (7) Suppl. SCR 336 Referred to. Para 80
2002 (3) Suppl. SCR 587 Followed Para 83
2005 (2) Suppl. SCR 603 Followed. Para 83
G
1981 sec supp. (1) 87 Relied on. Para 84
1955 SCR 603 Referred to. Para 84
2003 (2) SCR 1136 Referred to. Para 85
H 321 U.S. 649 (1944) Referred to. Para 86
SOCIETY FOR UN-AIDED P.SCHOOL OF 745
"
RAJASTHAN v. U.0.1.
(2011) ZACC 13 Referred to. Para 86 A
(1980) IR 102 Referred to. Para 86
2009 (5) SCR 913 Referred to. Para 104
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. B
95 of 2010.
Under Article 32 of the constitution of India.
WITH
W.P. (C) Nos. 98, 126, 137, 228, 269, 310, 364, 384 of 2010,
c
22,24,21,47,59,50,83,88,99, 102, 104,86, 101, 115, 154,
126, 118, 186, 148, 176, 205, 238 & 239 of 2011.
Goolam E. Vahanvati, AG, Indira, Jaisingh, ASG, Dr.
Rajeev Dhavan, Harish N. Salve, T.R. Andhyarujina, M. D
Chandrasekharan, Ashok Desai, Chander Uday Singh, K.
Parasaran, R. Balasubramanian, Shekhar Nephade, Arvind P.
Datar, Manjit Singh, AAG, Shobha, Bijoylaxmi Das, Hema
, Shekhawat, Indira Ramesh, Raghav Shankar, Vendanta
Kumar, Abeer Kumar, Amit Mittal, Romy Chacko, Ambar E
Qamaruddin, Pukhrambam Ramesh Kumar, Rahul Dhawan,
Shobana Masters, Vishesh lssar, Anant Bhushan, Basava Raj,
P.I. Jose, Anupam Mishra, B.K. Mishra, Vivek Kandari, Achintya
Dvivedi, Neeraj Shekhar, Anupam Lal Das, Arpit Gupta, Madhvi
Divan, Sanjeev K. Kapoor, Nitin Massey, Saman Ahsan (for F
Khaitan and Co.), Sushil D. Salwan, Vedanta Verma, Abeer
Kumar (for Karanjawala and Co.) Naveen R. Nath, Darpan
K.M., Lalit Mohini Bhat, Amrita Sharma, Vlnay Navare, Keshav
Ranjan, Abha R. Sharma, Vijay Kumar, Vishwajit Singh, Kamai
Gupta, Gagan Gupta, Sachin J. Patil, Chandan Ramamurthi, G
Soumya Chakraborty, K.K. Jairpuriar, Anuj Puri, Kunal Verma,
V. Balaji, C. Kannan, Pravesh Thakur, A. Subba Rao, Rakesh
K. Sharma, C. Rshmikant, Gaurav Joshi, Mahesh Agarwal,
· Rishi Agarwal, E.C. Agrawala, Piyush Raheja, Radhika
H
746 SUPREME COURT REPORTS [2012] 2 S.C.R.
A Gautam, Ankit Shah, Narendra Kumar, K.M. Joseph, Amit
Pawan, B.D. Das, Manoj V. George, Shilpam George, N.
Neyyappam, Rauf Rahim, P. Ramesh Kumar, Xavier Arulraj, C.
Kannan, Rakesh K. Sharma, Aniruddha P. Mayee, S. Ravi
Shankar, R. Yamunah Nachiar, Sha\ath, Vikramjit Banerjee,
B Shally Bhasin Maheshwari, Rishi Maheshwari, Dr. M.P. Raju,
K.K. Mishra, Dr. Ashwai Bhardwaj, Prabha Swami, C.
Rashmikant, Gaurav Joshi, Mahesh Agarw~I, Maneka
Guruswamy, Bipin Aspatwar, Mohit Kumar Shah, Huzefa
Ahmadi, Pradhuman Gohil, Vlkas Sinfh, S. Hari Haran, Charu
c Mathur, Nikhil Nayyar, T.V.S. Raghavendra Sreyas, Divya Jyoti
Jaipuriar, Jyoti Mendiratta, Puja Sharma, Amar Dave, Garima
Parshad, K. Gautham, Radhika Gautam, Aneesh Kumar Gupta,
Gopal Sankaranarayanan, Rohit Bhat, Senthil Jagadeesan,
Sanjay Kumar Visen, K.N. Mishra, Raman Kumar, Sriva~tava,
Ashish Wad, J.S. Wad and Co., Rohit Sharma, Anoopam N.
D Prasad, Nishanth Patil, Naila Jung, Anandha Kannan, Supriya
Jain, S.S. Rawat, Rekha Pandey, l.J. Singh, D.S. Mahra, Sanjay
V. Kharde, Asha G. Nair, Gopal Singh, Manish Kumar, V.G.
Pragasam, S. Thananjayan, G.N. Reddy, C. Kannan, Tarjit
E Singh, Kamal Mohan Gupta for the appearing parties.
The Judgment of the Court was delivered by
K.S. RADHAKRISHNAN, J. 1. We are, in these cases,
coneerned with the constitutional validity of the Right of Children
F to Free and Compulsory Education Act 2009 (35 of 2009) [in
short, the Act], which was enacted following the insertion of
Article 21A by the Constitution (Eighty-sixth Amendment) Act,
2002. Article 21A provides for free and compulsory education
to all children of the age 6 to 14 years and also casts an
G 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
H
SOCIETY FOR UN-AIDED P.SCHOOL OF 747
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
belief that the values of equality, social justice and democracy A
and the creation of just and humane society can be achieved
only through a provision of inclusive elementary educe;ition 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 B
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 C
in the Constitution and acknowledged it as a revolutionary step
providing universal elementary education for all the children.
Controversy in all these cases is not with regard to the validity
of Article 21A, but mainly centers around its interpretation and
the validity of Sections 3, 12(1)(b) and 12(1)(c) and some other D
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, E
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 F
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 G
guaranteed to others and the measures adopted by the
Parliament to remove the obstacles for realization of those
rights, in cases where there is conflict. In Part Ill of the judgment,
I have dealt with the obligations and responsibilities of the non-
state actors in realization of children's rights guaranteed under H
748 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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.
8
Aildhyarujina, 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
C Goolam E. Vahanvati, learned Attorney General and Mrs. Indira
Jaising, learned Additional Solicitor General appeared for the
Union of India.
PART I
D
5. In Mohini Jain v. State of Kamataka and others ((1992) .
3 SCC 666), this Court held that the right to education is a
fundamental right guaranteed under Article 21 of the
Constitution and that dignity of individuals cannot be assured
E 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 sec 645) contending that if the
F 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
G 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
H institutions running professional courses were held entitled to
SOCIETY FOR UN-AIDED P.SCHOOL OF 749
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
charge the fee higher than that charged by government A
institutions for similar courses but that such a fee should not
exceed the maximum limit fixed by the State. The Court also
formulated a scheme and directed every authority to impose
that scheme upon institutions seeking recognition/affiliation,
even if they are unaided institutions. Unni Krishnan introduced B
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 c
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 th.e D
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 E
a new Article 21A in the Constitution which read as follows:
"21A. Right to education.
21A(1) The State shall provide free and compulsory
education to all citizens of the age of six to fourteen years. F
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.
G
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 H
750 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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
B De;partment 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 educatiqn until they complete
c ;the age of 14 years. This right flows from Article 21 relating
to personal liberty and its content, parameters have to be
determined in the light of Article 41 which provides for right
to work, to education and to public assistance in certain
cases and Article 45 which provides for free and
D 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
E 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
F 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
G
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
H
SOCIETY FOR UN-AIDED P.SCHOOL OF 751
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.)
Unni Krishnan judgment said that wherever the A
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 B
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, c
stated that there was no intention, to exclude them
from the overall responsibility to provide education."
8. The Committee specifically referred to the judgment in
Unni Krishnan in paragraph 15.14 of the Report. Reference
was also made to the dissenting note of one of the members. D
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 E
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 F
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 G
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 fn black and
white. Some members, however, felt that the private
institutions which do not get any financial aid, provide H
752 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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
B
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.
c
15.16. The Committee recommends that the Bill be
passed subject to the recommendations made in the
preceding paragraphs .
. I
D 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
E 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
F
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
G "21A(3") must be inserted in the Bill.
Yours sincerely,
Sd/'
(SMT. HEDWIG MICHAEL REGO)"
H (emphasis supplied)
'
SOCIETY FOR UN-AIDED P.SCHOOL OF 753
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
9. Report referred to above was adopted by the A
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 B
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 C
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." D
11. Referring to the Constitution (Eighty-third Amendment)
Bill, 1997, Law Commission in its report in paragraph 6.1.4
stated as under:
E
"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
F
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 G
the Government/Board examination. To start with, the
percentage can be prescribed as twenty. Accordingly,
twenty per cent students could be selected by the
concerned institution in consultation with the local
authorities and the parent-teacher association. This H
754 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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
8
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
C 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."
D
Para 6.6.2 of the report reads as under:
"6.6.2. The unaided institutions should be made aware
that recognition, affiliation or permission to send their
children to appear for the Government/Board examination
E
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
F
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
G 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
H recast to give effect to the above concept and obligation."
SOCIETY FOR UN-AIDED P.SCHOOL OF 755
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
Reference may also be made to the following paragraphs of the A
Report:
"6.8. The aforesaid bill was referred by the Chairman,
Rajya Sabha to the Department-Related Parliamentary
Standing Committee on Human Resources Development. B
A press communique inviting suggestions/views was
issued on 18th August, 1997. The Committee considered
the Bill in four sittings and heard oral evidence. It adopted
the draft report at its meeting held on 4th November, 1997.
The report was then presented to the Rajya Sabha on 24th C
November, 1997 and laid on the table of the Lok Sabha
on the same day. Unfortunately, the Lok Sabha was
dissolved soon thereafter and elections were called.
6.8.1. The Budget Session after the new Lok Sabha was
constituted is over. There is, however, no indication whether D
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 E
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."
F
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.
G
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
H
756 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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
B
Parliament to insert a new article, namely, Article 21A
conferring on all children in the age group of 6 to14 years
the right to free and compulsory education. The said Bill
was scrutinized by the Parliamentary Standing Committee
on Human Resource Development and the subject was
c also dealt with in its 165th Report by the Law Commission
of India.
3. After taking into consideration the report of the
Law Commission of India and the recommendations of the
D Standing Committee of .Parliament, the proposed
amendments in Part Ill, 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
E
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
F 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
G 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
H Gazette of India on 13.12.2002 and the following provisions
SOCIETY FOR UN-AIDED P.SCHOOL OF 757
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.)
were inserted in the Constitution; by the Constitution (Eighty- A·
sixth Amendment) Act, 2002.
Part Ill - Fundamental Rights
"21A. Right to Education.- The State shall provide
free and compulsory education to all children of the age B
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
c
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.
D
Part IVA· Fundamental Duties
51A. Fundamental duties - It shall be the duty of
every citizen of India -
xxxxxxxxx E
(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."
F
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 G
understand the scope of the Act. In Herron v. Rathmines and
Rathgar Improvement Commissioners (1892] AC 498 at p.
502, the Court held that the subject-matter with which the
·. Legislature was dealing, and the facts existing at the time with
respect to which the Legislature was legislating are legitimate H
topics to consider in ascertaining what was the object and
758 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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 resulf of recommendation of the Law
Commission of India, it may be permissible to refer to the
B relevant report." (See also Dr. Baliram Waman Hiray v.
Justice 8. 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:
c
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
D educational institutions would have no obligation to impart free
and compulsory education to the children admitted in their
institutions. Law Commission was also of the view that the ratio
in Unni Krishnan had legitimized the State or the affiliating
Board to require unaided educational institutions to provide free
E education, as a condition for affiliation or for permitting the
students to appear for the GovernmenVBoard 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
F 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
G contending that the same would amount to nationalisation of
seats ..
PAI FOUNDATION
19. T. M.A. Pai Foundation and others v. State of
H
/
SOCIETY FOR UN-AIDED P.SCHOOL OF 759
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
Karnataka and others [(2002) 8 sec 481] examined the A
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 sec 558] in the case of
minority aided educational institutions and the meaning and B
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) C
and the rights of minority to establish and administer
education~! 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 D
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 E
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
F
expression "occupation" in Article 19(1)(g) is an activity of a
person undertaken as a means of livelihood or a mission in life
and hence charitable in nature and that establishing and running
an educational institution is an occupation, and in that process
a reasonable revenue surplus can be generated for the purpose
of development of education and expansion of the institutions. G
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 H
I
760 SUPREME COURT REPORTS (2012] 2 S.C.R.
A educational institutions are concerned, the Court held ttiat
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
B 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
c measures must .be in general to ensure proper academic
standards, atmosphere and infrastructure and prevention of
maladministration. The necessity of starting more quality private
unaided educational institutions in the interest of general public
was also emphasised by the Court by ensuring autonomy and
non-regulation in the school administration, admission of
0
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
E 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
F 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
G 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 ciid from the state and ··
the Government in such cases, would be entitled to make
H regulations relating to the terms and conditions of employment
SOCIETY FOR UN-AIDED P.SCHOOL OF 761
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
of the teaching and non-teaching staff. In other words, autonomy A
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
8
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 C
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 D
admit students of the non-minority group to a reasonable extent,
whereby the character of the institution is not annihilated, and
at the same time, the rights of the citizen engrafted under Article
29(2) are not subverted. The judgment in Pai Foundation was
pronounced on 31.10.2002, 25.11.2002 and Article 21A, new E
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, F
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 G
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 H
762 SUPREME COURT REPORTS [2012] 2 S.C.R.
A application. Rights of unaided minority and non-minority
institutions and restrictions sought to be imposed by the State
upon them were the main issues before the Court and not with
regard to the rights and obligations of private aided institutions
run by minorities and non-minorities. The five Judges' Bench
B 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
c 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
D of reseNation and/or appropriate to itself any quota in
admissions to such institutions?
(emphasis supplied)
(2) Whether unaided (minority and non-minority)
E
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
F 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
G 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?"
H
SOCIETY FOR UN-AIDED P.SCHOOL OF 763
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
27. Above mentioned questions were answered in P.A. A
lnamdar and others v. State of Maharashtra and others
((2005) 6 sec 537] and the Court cleared all confusion and
doubts, particularly insofar as unaided minority and non-minority
educational institutions are concerned.
B
28. lnamdar 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 C
additional protection to minority communities under ~rticle
30(1). lnamdar, 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 D
by lnamdar 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 E
service whether to the exclusion, complete or partial of citizens
or otherwise.
29. Referring to the judgments in Kera/a Education Bill ,
In Re. 1959 SCR 995 and St. Stephen, the Court took the view F
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.
lnamdar, as I have already indicated, was mainly concerned G
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 lnamdar held
as follows:
·H
764 SUPREME COURT REPORTS [2012] 2 S.C.R.
A "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 .
B . 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
c and privilege conferred by Article 30(1) "to their hearts'
content" unhampered by any restrictions excepting those
which are in national interest based on c.onsiderations
such as public safety, national security and national
integrity or are aimed at preventing exploitation of
students or the teaching community. Such institutions
D
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 .
E Foundation)
(ii) Minority unaided educational institutions
asking for affiliation or ·recognition
121. Affiliation or recognition by the State or the
F 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
G 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
H existence of infrastructure sufficient for its growth can be
SOCIETY FOR UN-AIDED P.SCHOOL OF 765
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHf'.!AN, J.]
stipulated as a prerequisite to the grant of recognition or A
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) B
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 C
recognition exists. A balance has to be struck between the
two objectives: (i) that of ensuring the standard of
excellence of the institution, and (ii) that of preserving the
right of the minority to establish and administer its •
educational institution. Subject to a reconciliation of the
two objectives, any regulation accompanying affiliation or D
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 E
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)
F
(iii) Minority educational institutions receiving State
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 G
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
H
766 SUPREME COURT REPORTS [2012) 2 S.C.R.
A 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
B
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
c the State. The State cannot insist on private educational
institutions which receive no aid from the State to
implement the State's policy on reservation for granting
• admission on lesser percentage of marks i.e. on any
criterion except merit.
D
125. As per our understanding, neither in the
judgment of Pai Foundation nor in the Constitution Bench
decision in Kera/a Education Bill which was approved by
Pai Foundation is there anything which would allow the
E 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
F 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
G
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
H
SOCIETY FOR UN-AIDED P.SCHOOL OF 767
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
resources of the State in providing professional education A
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 B
funds, can have their own admissions if fair, transparent,
non-exploitative and based on merit." (emphasis supplied)
Pai Foundation, it was pointed out by lnamdar, merely
permitted the unaided private institutions to maintain merit as C
the criterion of admission by voluntarily agreeing for seat
sharing with the State or adopting selection based on common
entrance test of the State. Further, it was also pointed that
unaided educational institutions can frame their own policy to
give free-ships and scholarships to the needy and poor
students or adopt a policy in line with the reservation policy of D
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. lnamdar 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 E
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 F
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. lnamdar, disapproved the G
scheme evolved in Islamic Academy to the extent it allowed
States to fix quota for seat sharing between management and
the States on the basis of local needs of each State, in the
unaided private educational institutions of both minority and
non-minority categories. lnamdar held that to admit students H
768 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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".
lnamdar emphasised the fact that minority unaided institutions
B 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. lnamdar also found foul with the
c 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. lnamdar
noticed that Pai Foundation also found foul with the judgment
in Unni Krishnan and held that admission of students in unaided
0
minority educational institutions/schools where scope for merit
based is practically nil cannot be regulated by the State or
University except for providing the qualification and minimum
condition of eligibility in the interest of academic standards.
E 30. Pai Foundation as well as lnamdar 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
F "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
G order and morality.
31. While examining the scqpe of Article 30, this fact was
specifically referred to in lnamdar (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.
H
SOCIETY FOR UN-AIDED P.SCHOOL OF 769
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
The expression "national interest" was used in the context of A ,
respecting "laws of the land", namely, while imposing
restrictions with regard to laws relating to taxation, sanitation,
social welfare, economic legislation, public order and morality
and not to make an inroad into the fundamental rights
guaranteed under Article 19(1 )(g) or Article 30(1) of the B
Constitution.
32. Comparing the judgments in /namdar and Pai
Foundation, what ~merges is that so far as unaided educational
institutions are concerned, whether they are established and
administered by minority or non-minority communities, they C
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 D
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, E
economic legislation, public order and morality.
33. Pai Foundation was examining the correctness of the
ratio in Unni Krishnan, which I have already pointed out, was
the basis for the insertion of Article 21A and the deletion of F
clause (3) of the proposed Article 21A. lnamdar 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 G
to children of the age 6 to 14 years and imposed obligation on
the State, and not on unaided educatior;ial 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 H
770 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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:
B
"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 eleme~tary education to
all. Provision of free and compulsory education of
c satisfactory quality to children from disadvantaged and
weaker sections is, therefore, not merely the responsibility
of schools run or supported by the appropriate .
Governments, but also of schools which are not dependent
on Government funds."
D
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.
E
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
F 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
G 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
H rights it does not operate merely as a limitation on the powers
SOCIETY FOR UN-AIDED P.SCHOOL OF 771
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
of the state but it requires affirmative state action to protect and A
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 B
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. Kera/a
Education Bill (supra).
37. Learned Additional Solicitor General in her written as C
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 0
administering educational institutions, while Article 21A deals
exclusively with a child's right to primary education. Article 21A,
it was pointed out, has no saving clause which indicates that it
is meant to be a complete, standalone clause on the subject
matter of the right to education and is intended to exclude the E
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 F
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 G
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 H
772 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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
B Ill, such as Articles 17, 23 and 24, among others, would operate
not only against the State but also against other private persons.
Reference was also made to the judgment of this Court Vishaka
and Others v. State of Rajasthan [(1997) 6 SCC 241], in which
this Court held that all employees, both public and private,
c 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
0
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
E on behalf of some of the petitioners, submitted that Article 21 A
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
F the words "state shall provide" are express enough to reveal
the intention of the Parliament. Further, it was stated that the
constitutional provision never intended to cast responsibility on
the private educational institutions along with the State, if that
be so like Article 15(5), it would have been specifically provided
G 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
H submitted that since no constitutional obligation is cast on the
SOCIETY FOR UN-AIDED P.SCHOOL OF 773
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
private educational instftutions under Article 21A, the State A
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 B
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 C
of the Act do so, to that extent, they may be declared
unconstitutional. Learned senior counsel submitted that the
"core individual rights" .always have universal dimension and
thus represent universal value while "socio-economic rights"
envisaged the sectional interest and the core individual right, D
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 lnamdar cannot be undone by E
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 F
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. G
41. Shri T.R. Andhyarujina, learned senior counsel
appearing for some of the minority institutions submitted that
the object of Articles 25 to 30 of the Constitution is to preserve
the rights of religious and linguistic minorities and to place them
H
77 4 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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-Ill is to
afford them guarantee and protection and not to interfere with
those rights except in larger public interest like health, morality,
B 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,
c 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
D take away the rights guaranteed to them under Article 30(1) of
the Constitution of India. Learned counsel submittedlhat Article
21A read with Article 30(1) also confers a right on a child
belonging to minority community for free and compulsory
education in an educational institution established and
E 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
F
.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
G 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
H children of the age 6 to 14 years and other comparable rights
SOCIETY FOR UN-AIDED P.SCHOOL OF 775
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
or even superior rights like the Right to food, healthcare, A
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 B
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 C
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 D
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 E
and the state is a key player in securing that goal. The preamble
of the Indian Constitution, fundamental rights in Part Ill 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 F
have to protect for a just and humane society.
45. Supreme Court through various judicial
pronouncements has made considerable headway in the
realization of socio-econom'ic rights and made them justiciable
despite the fact that many of those rights still remain as G
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 H
776 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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.
B 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
C as an integral part of right to life under Article 21 of the
Constitution. In Consumer Education & Research Centre and
Others v. Union of India and others [(1995) 3 SCC 42), this
. Court held that the right to life meant a right to a meaningful
life, which is not possible without having right to healthcare. This
D 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
E 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
F 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
G [(140) 2007 DLT 698], a Division Bench of Delhi High Court,
of which one of us, Justice Swatanter Kumar was a party, held
that the wider interpretations given to Article 21 read with Article
47 of the Constitution of India are not only meant for the State
but they are equally true for all, who are placed at an
H advantageous situation because of the help or allotment of vital
SOCIETY FOR UN-AIDED P.SCHOOL OF 777
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
assets. Dharamshila Hospital & Research Centre v. Social A
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 B
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-Ill or Part-IV of our
Constitution. However, this right has been recognized by this C
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 D
livelihood and right to life. Their claim was not fully accepted
by this Court holding that no one has the right to use a public
property for private purpose without requisite authorization and
held that it is erroneous to contend that pavement dwellers have
the right to encroach upon the pavements by constructing E
dwellings thereon. In Municipal Corporation of Delhi v. Gumam
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 F
Others v. New Delhi Municipal Committee and Others [(1989)
4 sec 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 G
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 Guiab
Khan and Others [(1997) 11 SCC 121] in the context of eviction
of encroachers from the city of Ahmedabad. This Court held H
.
778 SUPREME COURT REPORTS [2012] 2 S.C.R.
A though Articles 38, 39 and 46 mandate the State, as it:>
economic policy, to provide socio-economic justice, no person
has a right to encroach and erect structures otherwise on foot-
paths, pavements or public streets. The Court has however
opined that the State has the constitutional duty to provide
B 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
C 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,
D 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
E State shall strive to promote the welfare of the people and
Article 43 states that it shall endeavour to secure a living wage
and a decent standard of life to all workers. In Bandhua Mukti
Morcha v. Union of India and Others [(1984) 3 SCC 161), a
.Public. Interest Litigation, an NGO highlighted the deplorable
F 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
G 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 clau~es (e) and (f) of
Article 39 and Articles 41 and 42 and held that it must include
H protection of the health and strength of workers, men and
SOCIETY FOR UN-AIDED P.SCHOOL OF 779
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
women and of the tender age of children against abuse, A
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.
8
49. The Constitutional Court of South Africa rendered
several path-breaking judgments in relation to socio-economic
rights. Soobramoney v. Minister of Health (KwaZulu-Natal)
[1998 (1) SA 765 (CC)] was a case concerned with the right
of emergency health services. Court held that the State owes C
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, D
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 E
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 F
not recognize a directly enforceable claim to housing on the part
of the litigants, but ruled that the State is obliged to implement
a reasonable policy for those who are destitute. The Court,
however, limited its role to that of policing the policy making
process rather than recognizing an enforceable individual right G
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 H
780 SUPREME COURT REPORTS (2012] 2 S.C.R.
A 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
B 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
C Assembly: in re Certification of the Constitution of the
Republic of South Africa [1996 (4) SA 744 (CC)], the Court
made it clear that socio-economic rights may be negatively
protected from improper invasion, breach of the obligation,
occurs directly when there is a failure to respect the right or
indirectly when there is a failure to prevent the direct
D 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
E 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.
F 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,
G health services, food, water, social security and education in
the Constitution to enable it to serve as an instrument of
principled social transformation enabling affirmative action and
horizontal application of rights. To most of the social rights, the
State's responsibility is limited to take reasonable legislative
H and other measures within its available resources to achieve
SOCIETY FOR UN-AIDED P.SCHOOL OF 781
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
the progressive realisation of those rights [Sections 26(2), and A
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 B
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. C
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.
D
56. In a Venenzuelan case Cruz def Valle Balle
Bermudez v. Ministry of Health and Social Action - Case
No.15. 789 Decision No.916 (1999); the Court considered
whether those with HIV/AIDS had the right to receive the
necessary medicines without charge and identifying a positive E
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. F
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 G
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 H
782 SUPREME COURT REPORTS [2012) 2 S.C.R.
A should not make an inroad into the rights guaranteed to other
citizens.
REMOVAL OF OBSTACLES TO ACHIEVE SOCIO-
ECONOMIC RIGHTS
B 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
C 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 Ill of the Constitution, through
D . 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,
E 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
F of contravention of the provisions of Articles 14, 19 and 31.
Several Tenancy and Land Reforms Acts enacted by the State
also stood protected under Article 31A from the challenge of
violation of Articles 14 and 19.
G 60. Article 31 B also saves legislations coming under it
from inconsistency with any of the fundamental rights included
in Part Ill for example Article 14, Article 19(1)(g) etc. Article 31 B
read with Ninth Schedule protects all laws even if they are
violative of fundamental rights. However, in l.R. Coelho (Dead)
H by LRs v. State of Tamil Nadu and Others [(2007) 2 SCC 1),
SOCIETY FOR UN-AIDED P.SCHOOL OF 783
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
it was held that laws included in the Ninth Schedule can be A
challenged, if it violates the basic structure of the Constitution
which refer to Articles 14, 19, 21 etc.
61. Article 31 C was inserted by the Constitution (Twenty-
fifth Amendment) Act, 1971 which gave primacy to Article 39(b) B
and (c) over fundamental rights contained under Article 14 and
19. Article 31 C 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.
c
62. I have referred to Articles 31A to 31 Conly 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 D
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 Ill of the
Constitution. E
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
F
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, G
public order, health, morality, safety etc. all intended to achieve
socio-economic justice for the people.
64. The law is however well settled that the State cannot
travel beyond the contours of Clauses (2) to (6) of Article 19 of H
784 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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
B 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
c 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
D or business. Such laws can prevent unlicensed, uncertified
medical practitioners from jeopardizing life .and health of
people. Sub clause (ii) to Article 19(6) imposes no limits upon
the power of the State to create a monopoly in its favour. State
can also by law nationalize industries in the interest of general
E 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
F 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
G 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
H possible to amend the said Article so that socio-economic
SOCIETY FOR UN-AIDED P.SCHOOL OF 785
RAJASTHAN v. U.0.1. [K.S: RADHAKRISHNAN, J.)
rights could be realized by carving out necessary constitutional A
limitations abrogating or abridging the right guaranteed under
Article 19(1 )(g).
67. Constitutional amendments have also been made to
Articles 15 and 16 so as to achieve socio-economic justice.
8
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- C
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 D
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 E
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 .Ar.tiCle 15 by the Constitutional
(First Amendment) Act, 1951 enabling the State to make
special provision for the advancement of any socially and F
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 G
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
H
786 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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
B 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
C 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 lnamdar cases. It was noticed
that the number of seats available in aided or State maintained
D 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
E 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,
F 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
G minority educational institutions referred to in Clause (1) of
Article 30 of the Constitution.
70. The Parliament has, therefore, removed the obstacles
created by the law as ruled by the Court in Pai Foundation and
lnamdar so as to carry out the obligation under the Directive
H
SOCIETY FOR UN-AIDED P.SCHOOL OF 787
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
Principles of the State Policy laid down under Article 46. Later, A
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 B
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 C
and Others [(2008) 6 sec 1]. CEI Act was enacted by the
Parliament under Article 15(5), for greater access to higher
education providing for 27 per cent reservation for "Other
Backward Classes" to the Central Government controlled
educational institutions, but not on privately managed
educational institutions. Constitutional validity of Article 15(5) D
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 E
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 dqctrine. Article F
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 lnamdar
held that Article 19(1 )(g) prevents the State from creating G
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 H
788 SUPREME COURT REPORTS [2012] 2 S.C.R.
A or the principles under Article 19(1 )(g), insofar as it dealt with
State maintained and aided institutions, it did not violate the
basic structure of the Constitution. I have referred to Articles
15(4) and 15(5) and the judgment in Ashok Kumar Thakur to
highlight the fact that the State in order to achieve socio-
B 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
C 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
D 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
E Defence, Government of India for a period of 30 years
extendable to 99 years. Ministry of Defence also offered various
facilities like providing clinical training at Army Hospital, NCT,
Delhi and also access to the general hospitality. The
constitutional validity of Article 15(5) was upheld holding that
F Clause (5) of-Article 15 did not violate the basic structure of
th~ Constitution. While reaching that conclusion, Court also
examined the ratio in Pai Foundation as well as in lnamdar.
Some of the findings recorded in Medical Association case,
on the ratio of Pai Foundation and lnamdar, in my view, cannot
G 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 lnamdar. Learned
H Judges in Medical Association case concluded in Para 80 of
SOCIETY FOR UN-AIDED P.SCHOOL OF 789
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
that judgment that the expression "much of a difference" gives A
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 lnamdar to understand in Which context the expression 8
"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 C
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 D
State." (emphasis supplied)
lnamdar 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 E
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 lnamdar, which is evident from
the following paragraph of that judgment:
F
"81. xxx xxx
xxx xxx
(i) that there is not much of a difference in terms,
between the two kinds of institutions under G
consideration, based on an overall quantitative
assessment of all the rights put together, with a few
differences that would still· have operational
significance; or
H
790 SUPREME COURT REPORTS [2012] 2 S.C.R.
A (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)
B
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 /namdar, a seven Judges'
c 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,
D
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. lnamdar, of
the ratio in T.M.A. Pai, that imposition of reservations on
non-minority unaided educational institutions, covered by
E 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
F the constitutional status given to such measures."
7 4. Referring to
Pai Foundation case, the Court a/so
stated, having allowed the private sector into the field of
education including higher education, it would be
G 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
H have to find the State would at least have the power to make
SOCIETY FOR UN-AIDED P.SCHOOL OF 791
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amendments to resurrect some of those powers that it had A
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 8
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 C
all citizens in matters relating to employment or appointment
to any office under the State. Article 16(4) is a special provision
confined to the matters of employment in the services under the
State which states that nothing in Article 16(1) shall prevent the
State from making any provision for the reservation of D·
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. E
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 F
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, G
there could be no reservation in promotion. It was held that
reservation of appointments or posts under Article 16(4) is
confined to initial appointments only. To set right the law and
to advance social justice by giving promotions to Scheduled
Castes and Scheduled Tribes Clause (4A) was added to H
792 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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
8
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
C 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
D position was, however, overruled in Ajit Singh and Others v.
State of Punjab and Others ((1999) 7 SCC 209], wherein it was
decided that the reserved category candidates cannot count
seniority in the promoted category from the date of continuous
officiation vis-a-vis the general candidates who were senior to
E 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
F 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.
G
79. Constitution (Eighty-first Amendment) Act, 2000, which
came into effect on 9.6.2000, inserted Clause (48) to Article'
16, which envisaged that the unfilled reserved vacancies in a
year to be carried forward to subsequent years and that these
H vacancies are to be treated as distinct and separate from the
SOCIETY FOR UN-AIDED P.SCHOOL OF 793
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
current vacancies during any year, which means that 50% rule A
is to be applied only to normal vacancies and not to the posts
of backlog of reserved vacancies. Inadequacy and
representation of backward classes, Scheduled Castes and
Scheduled Tribes are the circumstances which enabled the
State Government to enact Articles 16(4), 16(4A) and 16(48). B
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 ·c
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 D
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 E
structure of equality of opportunity in Article 16 would collapse.
81. I have referred extensively to the constitutional
amendments effected to Articles 31A to 31C, Articles 15, 16
and 19 to show that whenever the Parliament wanted to remove F
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 G
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 lnamdar have
now been limited, restricted and curtailed so as to impose
positive obligation on them under Section 12(1)(c) of the Act H
794 SUPREME COURT REPORTS [2012] 2 S.C.R.
A and under Article 21A of the Constitution, which is permissible
only through constitutional amendment.
82. Constitutional principles laid down by Pai Foundation
and lnamdar on Articles 19(1)(g), 29(2) and 30(1) so far as
unaided private educational institutions are concerned, whether
8
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 lnamdar because Unnikrishnan was the basis for the
introduction of the proposed Article 21A and the deletion of
C 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
D judgment in Pai Foundation and the seven Judges judgment
in lnamdar, 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 .
E 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
F thought if fit not to cast any burden on them under Article 21A,
but only on the State. Criticism of the judgments of the
Constitutional Courts has to be welcomed, if it is healthy. Critics,
it is seen often miss a point which is vital, that is, Constitutional
Courts only interpret constitutional provisions and declare what
the law is, and not what law ought to be, which is the function
G 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
H other words, a law which is otherwise unconstitutional is
SOCIETY FOR UN-AIDED P.SCHOOL OF 795
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rendered constitutional. An unconstitutional statute is not a law A
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 B
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 c
applies to the case on hand.
84. In S.P. Gupta v. President of India and Others [1981
SCC Supp. (1) 87] [para 195], Justice Fazal Ali pointed out as
follows:
D
"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 E
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 F
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, G
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]. H
796 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 85. In People's Union for Civil Liberties (PUCL) and Anr.
v. Union of India (VO/) and Anr. [2003 (4) SCC 399] in para
112 this Court has held "It is a settled principle of constitutional
jurisprudence that the only way to render a judicial decision
ineffective is to enact a valid law by way of amendment ....... "
B
86. In Smit v. Al/wright [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
C 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
D to set right the law or abridge the constitutional rights
guaranteed in Part Ill 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
E /namdarwhile 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
F those principles get in-built in Article 19(1)(g), Article 29(2) and
Article 30(1) of the Constitution. Further Parliament, while
enacting Article 21A, never thought if fit to undo those principles
and thought it fit to cast the burden on the State.
PART Ill
G
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/
H responsibilities in realization of children's rights. Articles 21A,
SOCIETY FOR UN-AIDED P.SCHOOL OF 797
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
45, 51A(k), Section 12 of the Act and various International A
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 B
years, in that process, compulsorily co-opting, private
educational institutions as well. A shift in State's functions, to
non-state actors in the field of health care, education, social
services etc. has been keenly felt due to liberalization of
economy and privatization of state functions. c
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 D
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 E
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 F
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:
G
"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 H
798 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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
B 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."
c
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
D 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
E 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
F implying for any state, group or person any right to engage
in any activity or to perform any act aimed at the destruction
of any of the rights and freedoms set forth herein."
92. In this connection reference may be made to Article
G 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";
H
SOCIETY FOR UN-AIDED P.SCHOOL OF 799
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
Article 29 is also relevant for our purpose which reads as A
.follow:-
2. States Parties agree that the education of the child shall
be directed to:
(a) The development of the child's personality, talents 8
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
(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
(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 E
of indigenous origin;
(e) The development of respect for the natural
environment.
2. No part of the present article or article 28 shall be F
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 G
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 H
800 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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
B 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
c there shall be no violation of children's rights.
94. Article 24 of the Indian Constitution states that no child
below the age of 14 years shall be employed to work in any
factory or be engaged in any hazardous employment. The
Factories Act, 1948 prohibits the employment of children below
' D 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,
E 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
F 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,
G but no positive obligation to make available those rights.
95. Primary responsibility for children's rights, therefore,
lies with the State and the State has to respect, protect and
fulfill children's rights and has also got a duty to regulate the
H private institutions that care for children, to protect children from
SOCIETY FOR UN-AIDED P.SCHOOL OF 801
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
violence or abuse, to protect children from economic A
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
a/so expected to respect and protect the rights of the child,
but they are, not expected to surrender their rights B
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 C
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- D
esteem and self-confidence and to respect their constitutional
rights.
97. I have in the earlier part of the judgment referred to.
Article 28(1) and Article 29 of UNCRC which cast an obligation E
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 F
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 G
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 H
802 SUPREME COURT REPORTS [2012] 2 S.C.R.
A the state in protecting the Bill of Rights. That was a case
involving balancing of proprietary rights of a trust seeking to
evict a public school in order to establish an independent
school. One of the pleas raised by the evictees was that the
evictor trust also had an obligation towards the right to
B 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
C cast on them to protect the right by surrendering their rights.
99. Pai Foundation and lnamdar 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.
D 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.
E
100. Pai Foundation and lnamdar have categorically held
that any action of the State to regulate or control admissions
in the unaided professional educational institutions, so as to
compel them to give up a share of the available seats to the
F 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
G 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,
H so far as the unaided minority institutions are concerned.
SOCIETY FOR UN-AIDED P.SCHOOL OF 803
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
M~W A
101. Article 21 A 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 B
expression to mean that constitutional obligation or
responsibility is on private unaided educational institutions also,
in my view, doing violence to the language of that expression.
The obligation of the State to provide free and compulsory
education is without any limitation. Parliament in its wisdom has C
.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 D
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 E
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. F
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 G
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 H
804 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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
8
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
C join an unaided private educational institution cannot claim that
right as against the unaided private educational institution, since
they have no constitutional obligation to provide free and
compulsory education under Article 21A of the Constitution.
Needless to say that if children are voluntarily admitted in a
D 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
E 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
F 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
G [{2009} 6 SCC 398), this Court held that Article 21A imposes
a duty on the State, while Article 51A(k) places burden on the
parents to provide free and compulsory education to the children
of the age 6 to 14 years. There exists a positive obligation on
the State and a negative obligation on the non-state actors, like
H private educational institutions, not to unreasonably interfere
SOCIETY FOR UN-AIDED P.SCHOOL OF 805
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
with the realization of the children's rights and the state cannot A
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
8
unaided educational institutions to provide free and compulsory
education to children of the age 6 to 14 years. Article 21 A casts
constitutional obligation on the State to provide free and
compulsory education to children of the age 6 to 14 years.
CONSTITUTIONALLY IMPERMISSIBLE PROCEDURE C
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 D
of elementary education but the means adopted to achieve that
objective is faulty and constitutionally impermissible. Possibly,
the object and purpose of the Act could be achieved by limiting
or curtailing the fundamental rights guaranteed to the unaided
non-minority and minority educational institutions under Article E
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.
F
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 G
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 H
806 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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 -
8
(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
c 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
D 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
E 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:
F
· 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.
G (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
H · amount charged from the child, whichever is less, in such
SOCIETY FOR UN-AIDED P.SCHOOL OF 807
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
manner as may be prescribed: A
Provided that such reimbursement shall not exceed
per-child-expenditure incurred by a school specified n sub-
clause (i) of clause(n) of section 2:
Provided further where such school is already under B
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. C
(3) Every school shall provide such information as
may be required by the appropriate Government or the
local authority, as the case may be.
D
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, E
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
F
belonging to sueh 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 - G
(i) a school established, owned or controlled by the
appropriate Government or a local authority;
(ii) an aided schooi receiving aid or grants to meet H
808 SUPREME COURT REPORTS [2012] 2 S.C.R.
A whole or part of its expenses from the appropriate
Government or the local authority.
(iii) a school belonging to specified category; and
(iv) an unaided school not receiving any kind of aid or
B grants to meet its expenses from the appropriate
Government or the local authority.
(A) Unaided Educational Institutions, minority and non-
minority:
c
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, ifthere
0 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
E 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
F is after having started private schools, do they owe a
constitutional obligation for seat sharing with the State on a fee
I
structure determined by the State. Pai Foundation and lnamdar
took the view that the State cannot regulate or control admission
in unaided educational institutions so as to compel them to give
G 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 lnamdar are una.nimous in their view that
H such appropriation of seats cannot be held to be a regulatory
SOCIETY FOR UN-AIDED P.SCHOOL OF 809
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
measure in the interest of rights of the unaided minority A
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. lnamdar has also held that to admit students being
an unfettered fundamental right, the State cannot make fetters B
upto the level of under graduate education. Unaided educational
institutions enjoy total freedom and they can legitimately claim
'unfettered fundamental rights' to choose students subject to its
being fair, transparent and non~exploitative.
110. Section 12(1)(c) read with Section 2(n)(iv) of the Act C
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 D
minority and non-minority educational institutions (Refer Paras
124, 125 of lnamdar). 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 E
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 F
interest of minority within the meaning of Article 30(1) or a
reasonable restriction within the meaning of Article 19(6) of the
Constitution. Therefore, no distinction or difference can be
drawn between unaided minority schools and unaided non-
minority schools with regard to appropriation of quota by the G
State or its reservation policy under Section 12(1 )(c) of the Act.
111. I am of the view, g6lng by the ratio laid down by Pai
Foundation and lnamdar, to compel the unaided non minority
and minority private educational institutions, to admit 25% of
H
810 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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
9 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
C Section 2(d) or (e) of the Act or to their parents.
112. Pai Foundation, in paragraph 57 of the judgment has
stated that in as much as the occupation of education is, in a
sense, regarded as charitable, the Government can provide
regulations that will ensure excellence in education, while
D 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
E 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
F educational institutions on the ground that providing education
is charity. Pai Foundation and lnamdar 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
G inroad into their autonomy. The object and purpose of Section
12(1)(c), it may be rioted, is not to reduce commercialization.
Pai Foundation and lnamdar have clearly denounced
commercialization of education.
113. Right to establish and administer and run a private
H
SOCIETY FOR UN-AIDED P.SCHOOL OF 811
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
unaided educational institution is the very 9penness of personal A
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 B
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 c
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 D
established with lot of capital investment, maybe with loan and
borrowings. To maintain high standard of education, well
qualified and experienced teachers have to be appointed, at
times with hefty salary. Well equipped library, laboratory etc
have also to be set up. In other words considerable money by E
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 F
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 G
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.
H
812 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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
B 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
c 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.
D 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 lnamdar. Section 12(1)(c) has
neither the constitutional support of Article 21A, nor the support
E 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
F enacted to cast a constitutional obligation on the state and a
duty upon the State under Articles 41, 45 and 46. I have pointed
out that it is to get over such situations and for the removal of
such obstacles several constitutional amendments were
necessitated which I have extensively dealt with in Part II of my
G judgment.
117. Section 12(1)(c) seeks to achieve what cannot be
achieved directly especially after the interpretation placed by
Pai Foundation and lnamdar on Article 19(1)(g) and Article
H 30(1) of the Constitution. lnamdar has clearly held that right to
SOCIETY FOR UN-AIDED P.SCHOOL OF 813
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
set up, and administer a private unaided educational institution A
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 lnamdar. 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 B
and /namdar 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 C
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 lnamdar. Court, in such D
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. E
119. Pai Foundation and lnamdar 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 F
legislation, but only by constitutional amendments. The object
to be achieved by the legislation may be laudable, but if it is
secured by a method which offends fundamental rights and
constitutional principles, the law must be struck down as
unconstitutional. The constitutional provision like Article 19(1 )(g) 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
H
814 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 12(1)(c), if upheld would resurrect Unni Krishnan scheme which
was nullified by Pai Foundation and lnamdar.
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
8
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
C disadvantaged group in the neighbourhood in their educational
institutions as well as in pre-schools.
(B) Aided Educational Institutions, minority and non-
minority:
0 121. 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%
E 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
F 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
G 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
H students from non-minority group to a reasonable extent without
SOCIETY FOR UN-AIDED P.SCHOOL OF 815
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
annihilating the character of the institution. In St. Stephen case A
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 B
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 c
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 0
the language, religion and culture of that minority. I may also
add that Section 12(1)(b) equally safeguards the rights of the
members of religious and linguistic minority communities.
Section 2(e) deals with the 'child belonging to weaker section'
of the minority communities, religious or linguistic, who would E
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, F
lnamdar, St. Stephen and in Re. Kera/a 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) 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.
H
816 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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,
8
6, 7, 8 and 9 read with Sections 4, 5 and 10 impose duties
and obligations upon the appropriate government and local
authority and those sections completely answer and fulfill the
mandate contained in Article 21A as against the State. Section
3 recognizes the right of the child to free and compulsory
C 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),
D recognized in Pai Foundation and lnamdar. 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.
E
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 lnamdar. Petitioners
F submitted that a fair and transparent screening procedure is
being followed by all the schools. So far as Section 14 is
concerned, petitioners have submitted that schools always give
opportunity to the child/parent to produce some authentic proof
to ascertain the age of the child. Petitioners, referring to
G 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
cqntended that the prohibition against holding back any student
in any class or expelling any student regardless of how grave
H
SOCIETY FOR UN-AIDED P.SCHOOL OF 817
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
the provocation may be, imposes unreasonable and arbitrary A
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 B
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 C
from the neighbourhood but from all over the country and
abroad. School has its own rules and regulations. Prohibition
of holding back and expulsion of students in an unaided private
educational institution depends upon the academic and
disciplinary procedure laid down by the school and its parent D
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 E
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 F
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 G
being followed by them and the provisions stipulated in Section
29(2) are generally being adhered to by their schools. With
regard to Section 23 of the Act, counsels submitted that some
of the unaided private educational institutions employ the
teachers from outside the country as it encourages cross- H
818 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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
B 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
C 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 lnamdar, like there shall be no profiteering, no
D maladministration, no demand for capitation fee and so on and
they have to follow the general laws of the land like taxation,
public safety, sanitation, morality, social welfare etc.
129. I may indicate that so far as the rest of the schools
E 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,
F 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)
G 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
·H
SOCIETY FOR UN-AIDED P.SCHOOL OF 819
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
by minority whether based on religion or language, shall A
perform advisory functions only. The apprehension that the
committee constituted under Section 21 (1) would replace the
minority educational institution is, therefore, unfounded. [Ref.
F.No.1-22009-E.E-4 of Government of India (Annexure A-3)].
B
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 C
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 Seetion 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) D
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 E
the object sought to be achieved, that is access to education.
131. Contention was also raised by them against Section
14(2) which provides that no child shall be denied admission
in a school for lack of age proof which, according to them, will F
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 G
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 H
820 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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
8
stating that it will lead to indiscipline and also deteriorate the
quality of the education, which I find difficult to agree with looking
to the object and purpose of the Act. Holding back in a class
or expulsion may lead to large number of drop outs from the
school, which will defeat the very purpose and object of the Act,
C. 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
D 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.
E
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
F specified in the schedule be fulfilled, if not already fulfilled, within
a stipulated time. There is nothing objectionable in those
provisions warranting our interference. Section 23, in my view,
would not take away the freedom of aided minority educational
institutions for the reasons already stated by us. No infirmity is
G 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
H aided minority and non-minority educational institutions are
SOCIETY FOR UN-AIDED P.SCHOOL OF 821
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
following the curriculum as laid down by independent A
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 B
may affect the quality of education.
135. I am of the vie"'." that requiring the minority and non-
minority in~titutions 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 C
Constitution. Requirement that the curriculum adopted by a
minority institution should comply with certain basic norms i~
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 D
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 E
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.
F
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 G
to 14 years and the object and purpose is to see that children
should complete elementary education. If they are subjected to
any Board Examination and to any screening procedure, then
the desired object would not be achieved. The object and
purpose of Section 30 is to see that a child shall not be held
H
8,22 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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
B 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
c 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
D institutions raised a doubt as to whether the Act has got any
impact on the Freedom of Religion and Conscience guaranteed
under Article 25 insofar as it applies to institutions run by a
religious denomination. It was clarified by the Union of India that
the Act would apply to institutions run by religious
E 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
F 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
G 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
H doing so it would interfere with the religious practices.
SOCIETY FOR UN-AIDED P.SCHOOL OF 823
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
Madrasas and Vedic Pathshalas, as I have already indicated, A
predominantly provide religious instruction and do not provide
formal secular education and, hence, they are exempted from
the applicability of the Act. The Central Government has now
issued Guidelines dated 23.11.2010 under Section 35(1) of the
Act clarifying the above position. The operative part of the B
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 C
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 D
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 E
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
F
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 G
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 H
824 . SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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
B education for all children until they complete the age of six years
and the appropriate government has to take necessary steps
for providing free pre-school education for such children. Further,
the Act also cast a duty on every parent or guardian to admit
or cause to be admitted his or her child or ward, as the case
c 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
D 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.
E 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%
F 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 govemment~aided
schools. In 1994, nearly 22% of rural children were enrolled in
government-aided schools. By 2005, this declined to a bare 7%
G in rural areas and 5% in urban areas. At an all India level, 72%
of children are enrolled in government schools, and about 28%
are in private schools. The survey further indicates that the
children between 6-14 years old, about 40% participated in
private sector education either through enrolment in private
H school (20%), through private tuition (13%), or both (7%). The
SOCIETY FOR UN-AIDED P;SCHOOL OF · 825
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
growing preference for private schooling and the reliance on A
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 B
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
c
aid and grant provided by the State, generally the payment to
such schools is not performance oriented. The State
Governments provide 100% salary to the teachers on its roll
on monthly basis and some State Governments would provide
90%. Generally, the State Governments do not provide capital D
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 E
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 F
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 G
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
(MOMS).
H
826 . SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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
B 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.
C 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
D school being 3.9, 8.3 and 6.7% respectively. The statistics
would indicate that the Government schools have the highest
percentage of teachers who are professionally trained at 43.4%,
followed by aided school (27.8%) and unaided private schools
(only 2.3%). However, the learning achievements are higher in
E 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
F 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
G 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
H quality education to the children function.·Responsibility is much
SOCIETY FOR UN-AIDED P.SCHOOL OF 827
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
more on the State, especially when the Statute is against A
holding back or detaining any child from standard I to VIII.
145. Mr. Murray N. Rothbard, an eminent educationist and
Professor in Economics, in his Book "Education: Free and
Compulsory" [1999, Ludurg von Mises Institute, Auburn, Aliana] B
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 C
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 D
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 E
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.
F
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 G
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- H
828 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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
8
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 onfy free and compulsory education, but
quality education. The Regulatory authority can also plug .the
C 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
D 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
E 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
F 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.
G
PART VI
CONCLUSIONS
(1) Article 21 A casts an obligation on the State to
H
SOCIETY FOR UN-AIDED P.SCHOOL OF 829
RAJASTHAN v. U.0.1. [K.S. RADHAKRISHNAN, J.]
provide free and compulsory education to children A
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 B
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.
c
(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 D
non-recognition or non-affiliation.
(4) No distinction or difference can be drawn between
unaided minority and non-minority schools with
regard to appropriation of quota by the State or its E
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
F
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. G
(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, H
830 SUPREME COURT REPORTS [2012]. 2 S.C.R.
A 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
B
in consonance with the directions/guidelines laid
down by the Central Government in that behalf.
(8) The provisions of Section 21 of the Act, as
provided, would not be applicable to the schools
c 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
D 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
F 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
G Section 34 of the RTE Act shall so constitute the
Council within three months from today. The
Council so constituted shall undertake its requisite
functions in accordance with the provisions of
Section 34 of the Act and advise the Government
in terms of clauses (6), (7) and (8) of this order
H
SOCIETY FOR UN-AIDED P.SCHOOL OF 831
RAJASTHAN v. U.0.1.
immediately thereafter. A
(12) Central Government and State Governments may
set up a proper Regulatory Authority for supervision
and effective functioning of the Act and its
implementation.
B
(13) Madrasas, Vedic Pathshalas etc. which
predominantly provide religious instructions and do
not provide for secular education stand outside the
purview of the Act.
c
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 0
valuable assistance rendered by the counsel appearing for
the both sides.
S.H. KAPADIA, CJI. 1. We have I
had the benefit of
carefully considering the erudite judgment delivered by our
esteemed and learned Brother Radhakrishnan, J. Regretfully, E
we find ourselves in the unenviable position of having to
disagree with the views expressed therein concerning the non-
applicability of the Right of Children to Free and Compulsory
Education Act, 2009 (for short "the 2009 Act") to the unaided
non-minority schools. F
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. G
Introduction
3. To say that "a thing is constitutional is not to say that if
is desirable" [see Dennis v. United States, (1950) 341 US
49~. H
832 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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
B
of necessity determine that question; and the only way in
which they can properly do so, is by looking to the terms
of the Co.nstitution by which, affirmatively, the legislative
powers were created, and by which, negatively, they are
restricted. If what has been done is legislation, within the
c 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".
D
5. Education is a process which engages many different
actors : the one who provides education (the teacher, the owner
of an educational institution, the parents), the one who receives
education (the child, the pupil) and the one who is legally
E 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 Gompulsory Education justiciable. The
2009 Act envisages that each child must have access to a
F 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 p'rovision of equal opportunities to all. The Directive
Principles of State Policy enumerated in our Constitution lay
G 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
H
SOCIETY FOR UN-AIDED P.SCHOOL OF 833
RAJASTHAN v. U.0.1. [S.H. KAPADIA, CJI.]
barrier that prevents a child from completing 8 years of A
schooling. The word "Compulsory" in that title stands for
compulsion on the State and the parental duty to send children
to school. To protect and give effect to this right of the child to
education as enshrined in Article 21 and Article 21A of the
Constitution, the Parliament has enacted the 2009 Act. B
6. The ~009 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 C
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. D
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 E
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
F
is charitable. Advancement of education is a recognised head
of charity. Section 3(2) has been enacted with the object of
removing financial barrier which prevents a child from accessing
education. The other purpose of enacting Section 3(2) is to
prevent educational institutions charging capitation fees
resulting in creation of a financial barrier which prevents a child G
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 H
834 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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
s specified in sub-clauses (iii) and (iv) of clause (n) of Section
2, for completing his or her elementary education. Chapter Ill
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
c school within such areas or limits of neighbourhood, as may
be prescribed, where it is not so established, within 3 years
from the commencement of the 2009 Act. The emphasis is on
providing "neighbourhood school" facility to the children at the
Gram Panchayat level. Chapter IV of the 2009 Act deals with
responsibilities of schools and teachers. Section 12 (1 )(c) read
0
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
E 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
F 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
G from the child, whichever is less, in such manner as may be
prescribed. Such reimbursement shall not exceed per child
expenditure incurred by a school established, owned or
controlled by the appropriate government or a local authority.
Section 13 envisages that no school or person shall, while
H admitting a child, collect any capitation fee and subject the child
SOCIETY FOR UN-AIDED P.SCHOOL OF 835
RAJASTHAN v. U.0.1. [S.H. KAPADIA, CJI.]
, or his or her parents to any screening procedure. Section 15 A
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 s
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
c
certificate of recognition within the prescribed period specifying
the conditions there for, if the ~chool 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
0
school. The order of withdrawal of recognition should provide
a direction to transfer the children studying in the de-recognised
school to be admitted to the specified neighbourhood school.
Upon withdrawal of recognition, the de-recognised school
cannot continue to function, failing which, is liable to pay fine E
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. F
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 G
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 H
836 SUPREME COURT REPORTS [2012] 2 S.C.R.
A may be .. That plan, however, cannot have any impact on
consideration of application for grant of recognition for
establishing an unaided school. To ensure that teachers should
contribute in imparting quality education in the school itself,
Section 28 imposes total prohibition on them to engage in
B 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
C 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
0
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,
E 26 and the Schedule of that Act. [See Section 19(2)]. The State
is also expected to first weed out those schools which are· non-
performing, or under-performing or non-compliance schools
and upon closure of such schools, the students and the teaching
and non-teaching staff thereof should be transferred to the
F 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
G 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
H regarding the need of government aided schools in every
SOCIETY FOR UN-AIDED P.SCHOOL OF 837
RAJASTHAN v. U.0.1. [S.H. KAPADIA, CJI.]
locality across the State. Besides, it will ensure proper and A
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 B
the State Government(s), by resorting to the provision of the
2009 Act, must take opportunity to re-organise its financial
outflow at the micro level by weeding out the non-performing
or under-performing or non-compliance schools receiving
grant-in- aid, so as to ensure that only such government funded c
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 D
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- E
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 F
in such manner as the State may, by law, determine. Thus,
under the said Article, the obligation is on the State to provide
free and compulsory education to all children of specified age.
However, under the said Article, the manner in which the said
obligation will be discharged by the State has been left to the G
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?
H
838 SUPREME COURT.REPORTS [2012] 2 S.C.R.
A 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
B 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
C fundamental right, the courts need to ask the question whether
the impugned law infringes a fundamental right within the limits
justified by the directive principles or whether it goes beyond
them. For example, the scope of the right of equality of
opportunity in matters relating to employment (Article 16) to any
office in the State appears more fully defined when read with
0
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
E 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 21 A comes from reading of Articles 41, 45
F 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
G of 14 years and that the said obligation cannot be shifted or
passed on to an unaided school, as defined in Section 2(n)(iv)
of the 2009 Act. To answer the said contention, one needs to
appreciate the scope of Articles 21, 21A, 19(1)(g) and Articles
41, 45 and 46 of the Constitution. At the outset, it may be
H stated, that fundamental rights have two aspects - they act as
SOCIETY FOR UN-AIDED P.SCHOOL OF 839
RAJASTHAN v. U.0.1. [S.H. KAPADIA, CJI.]
fetter on plenary legislative powers and, secondly, they provide A
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 B
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 C
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 0
Act, which is child centric and not institution centric. Thus, as
stated, Article 21A provides that the State shall provide free
and compulsory education to all children of the specified age
in such manner as the State may, by law, determine. The
manner in which this obligation will be discharged by the State E
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 F
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 G
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 H
840 SUPREME COURT REPORTS [2012) 2 S.C.R.
A such a provision not be saved by the principle of reasonable
restriction imposed in the interest of the general public in Article
19(6) of the Constitution?
10. Coming to the principle of reasonableness, it may be
stated, that though subject-wise, Article 21A deals with access
B 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.
C [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.
D 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 Ill would be dependent upon right to
life in Article 21 as interpreted by this Court to include right to
E live with dignity, right to education, etc. At the end of the day,
whether one adopts the pith and substance test or the nature
and character of the legislation test or the effect test, one finds
that all these tests have evolved as rules of interpretation only
as a matter of reasonableness. They help us to correlate
F 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
G the principle of reasonableness in Article 19(6), particularly,
when in T.M.A. Pai Foundation and in P.A. lnamdar 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
H arises foLdetermination is - whether Section 12(1)(c) of the
SOCIETY FOR UN-AIDED P.SCHOOL OF 841
RAJASTHAN v. U.0.1. [S.H. KAPADIA, CJI.]
2009 Act is a reasonable restriction on the non-minority's right A
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 B
any profession or to carry on any occupation, trade or business
which freedom is not absolute but which could be subjected to
social control under Article 19(6) in the interest of general
public. By judicial decisions, right to education has been read
into right to life in Article 21. A child who is denied righl to c
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 0
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. lnamdar, 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
E
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 F
30(1), the 2009 Act cannot be termed as unreasonable. To put
an obligation on the unaided non-minority school to admit 25%
children in class I under Section 12(1)(c) cannot be termed as
an unreasonable restriction. Such a law cannot be said to
transgress any constitutional limitation. The object of the 2009 G
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 H
842 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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
B 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
c non-minority schools would such a law be said to be
unconstitutional, not saved under Article 19(6)? Answer is in the
negative. Firstly, it must be noted that the expansive provisions
of the 2009 Act are intended not only to guarantee the right to
free and compulsory education to children, but to set up an
intrinsic regime of providing right to education to all children by
0
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
E 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
F 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. lnamdar that all citizens have
G a right to establish and administer educational institutions under
Articles 19(1)(g) and 26 but that right is subject to the provisions
of Articles 19(6) and 26(a). The constitutional obligation of the
State to provide for free and compulsory education to the
specified category of children is co-extensive with the
H fundamental right guaranteed under Article 19(1)(g) to establish
SOCIETY FOR UN-AIDED P.SCHOOL OF 843
RAJASTHAN v. U.0.1. [S.H. KAPADIA, CJI.]
- an educational institution. Lastly, the fundamental right to A·
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 B
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 C
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 D
long as the activity remains charitable. Such an activity
undertaken by the private institutions supplements the primary
obligation of the State. Thus, the State can regulate by law the
activities of the private institutions by imposing reasonable
restrictions under Article 19(6). The 2009 Act not only
encompasses the aspects of right of children to free and E
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 F
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 G
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 H
844 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 53 has observed that the State while prescribing qualifications
for admission in a private unaided institution may provide for
condition of giving admission to small percentage of students
belonging to weaker sections of the society by giving them
freeships, if not granted by the government. Applying the said
law, such a condition in Section 12(1)(c) imposed while
8
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),
C 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
D 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,
E those who may not be able to pursue education due to inability
to pay fees or charges of the private unaided schools. We also
do not see any merit in the contention that Section 12(1)(c)
violates Article 14. As stated, Section 12(1 )(c) inter alia
provides for admission to class I, to the extent of 25% of the
F 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
G 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
H or ~heir parents do not have the means to pay for their fees.
SOCIETY FOR UN-AIDED P.SCHOOL OF 845
RAJASTHAN v. U.0.1. [S.H. KAPADIA, CJI.]
As stated above, education is an activity in which we have A
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 B
12(1)(c) also satisfies the test of reasonableness, apart from
the test of classification in Article 14.
11. The last question which we have to answer under this
head is - whether Section 12(1 )(c) runs counter to the
judgments of this Court in T.M.A. Pai Foundation and P.A. C
lnamdar 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 D
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
(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 F
manner as the State may, by law, determine. Thus, the primary
obligation to provide free and compulsory education to all
children of the specified age is on the State. However, the
manner in which this obligation will be discharged by the State
has been left to the State to determine by law. The State may G
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 H
846 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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
B was not the issue in T.M.A. Pai Foundation nor in P.A.
lnamdar. 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
c 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. lnamdar were not concerned with
interpretation of Article 21A and the 2009 Act. It is true that the
above two judgments have held that all citizens have a right to
0
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
E T.M.A. Pai Foundation arose in the light of the scheme framed
in Unni Krishnan's case and the judgment in P.A. lnamdarwas
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
F 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
G 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,
H 49 and 50 (read together), 51, 53, 56, 58 - 61, 62, 67, 68, 70
SOCIETY FOR UN-AIDED P.SCHOOL OF 847
RAJASTHAN v. U.0.1. [S.H. KAPADIA, CJI.]
etc., similarly, paras 26, 35, 104, 146 of P.A. lnamdar. We A
quote the relevant para in support of what we have stated
above:
T.M.A. Pai Foundation
Para 48 read with para 50 B
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 c
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 0
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; E
(b) to set up a reasonable fee structure;
(c) to constitute a governing body;
(d) to appoint staff (teaching and non-teaching); and F
(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 G
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 H
848 SUPREME COURT REPORTS [2012] 2 S.C.R.
A preferences shown to less meritorious but more influential...
applicants. Excellence in professional education would
require that greater emphasis be laid on the merit of a
student seeking admission. Appropriate regulations for this
purpose may be made keeping in view the other
B 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
c 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.
D 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
E 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
F
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
G 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.
H The State says that it has no funds to establish institutions
SOCIETY FOR UN-AIDED P.SCHOOL OF 849
RAJASTHAN v. U.0.1. [S.H. KAPADIA, CJI.]
at the same level of excellence as private schools. But by A
curtailing the income of such private schools, it disables
those schools from affording the best facilities because of
a lack of funds. If this lowering of standards from excellence
to a level of mediocrity is to be avoided, the State has to
provide the difference which, therefore, brings us back in B
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 c
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
0
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,
E
affiliation and common final examinations.
P.A. lnamdar
26. These matters have been directed to be placed F
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. lnamdar v. State of Maharashtra and
order dated 29-7-2004 in Pushpagiri Medical Society v.
State of Kerala. The aggrieved persons before us are G
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 H
850 SUPREME COURT REPORTS [2012] 2 S.C.R.
A respect of unaided professional institutions;
(ii) the holding of examinations for admissions to
such colleges, that is, who will hold the entrance
tests; and
B (iii) the fee structure.
104. Article 30(1) speaks of "educational institutions"
generally and so does Article 29(2). These articles do not
draw any distinction between an educational institution
c 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 educe1tion, in the backdrop of the
D 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
E
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
F 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
G 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
H of professional education have an obligation and a duty
SOCIETY FOR UN-AIDED P.SCHOOL OF 851
RAJASTHAN v. U.0.1. [S.H. KAPADIA, CJI.]
to maintain requisite standards of professional education A
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. /namdar holds that right to establish and 8
administer educational institution falls in Article 19(1 )(g). It
further holds that seat-sharing, reservation of seats, fixing of
quotas, fee fixation, cross-subsidization, etc. imposed by judge-
made scheme in professional/ higher education is an
unreasonable restriction applying the principles of C
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 D
Autonomy, Voluntariness, Co-optation and Anti-nationalisation
of seats. On reading T.M.A. Pai Foundation and P.A. lnamdar
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 E
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 F
reasonable restriction under Article 19(6).
13. However, we want the Government to clarify the
position on one aspect. There are boarding schools and
orphanages in several parts of India. In those institutions, there G
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.
H
852 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 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
8 worship. To implement and fortify these purposes, Part Ill 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
C affairs in matters of religion; to acquire property and to
administer it in accordance with law. Articles 29 and 30 confer
certain educational and cultural rights as fundamental rights.
15. Article 29(1) confers on any section of the citizens a
D 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
E 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
F 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.
G
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
H
SOCIETY FOR UN-AIDED P.SCHOOL OF 853
RAJASTHAN v. U.0.1. [S.H. KAPADIA, CJI.]
guaranteed by Article 19 which is subject to reasonable A
restrictions. Article 30(1) is intended to be a real right for the
protection of the minorities in the matter of setting up
educational institutions of their own choice. However,
regulations may lawfully be imposed either by legislative or
executive action as a condition of receiving grant or ()f B
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 c
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 D
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. lnamdar, this Court held that there shall be no E
reservations in private unaided colleges and that in that regard
there shall be no difference between the minority and non-
'!linority 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. lnamdar has been overruled F
on two counts: (a) whereas this Court in P.A. lnamdar 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. lnamdar had said
that there shall be no difference between the unaided minority G
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 H
854 SUPREME COURT REPORTS [2012) 2 S.C.R.
A 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
B 30(1) is not conditional as Article 19(1)(g). In a sense, it is
absolute as the Constitution framers thought that it was the duty
of the Government of the day to protect the minorities in the
matter of preservation of culture, language and script via
establishment of educational institutions for religious and
c 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
0
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.
E 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
F pursuant to Article 21A. Applying the above tests, we hold that
the 2009 Act is constitutionally valid qua aided minority schools.
Conclusion (according to majority):
G 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;
H
SOCIETY FOR UN-AIDED P.SCHOOL OF 855
RAJASTHAN v. U.0.1. [S.H. KAPADIA, CJI.]
(ii) an aided school including aided minority school(s) A
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
B
(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 c
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. D
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.
E
22. Subject to what is stated above, the writ petitions are
disposed of with no order as to costs.
K.K.T. Writ Petitions disposed of.
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