IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO. 95 OF 2010
Society for Un-aided Private Schools of Rajasthan
... Petitioner(s)
versus
U.O.I. & Anr. ...Respondent(s)
with Writ Petition (C) Nos. 98/2010, 126/2010, 137/2010, 228/2010, 269/2010, 310/2010, 364/2010, 384/2010, 21/2011, 22/2011, 24/2011, 47/2011, 50/2011, 59/2011, 83/2011, 86/2011, 88/2011, 99/2011, 101/2011, 102/2011, 104/2011, 115/2011, 118/2011, 126/2011, 148/2011, 154/2011, 176/2011, 186/2011, 205/2011, 238/11 and 239/11.
JUDGMENT
S. H. KAPADIA, CJI
1. We have had the benefit of carefully considering the erudite judgment delivered by our esteemed and learned Brother Radhakrishnan, J. Regretfully, we find ourselves in the unenviable position of having to disagree with the views
expressed therein concerning the non-applicability of the Right of Children to Free and Compulsory Education Act, 2009 (for short "the 2009 Act") to the unaided non-minority schools.
2. The judgment of Brother Radhakrishnan, J. fully sets out the various provisions of the 2009 Act as well as the issues which arise for determination, the core issue concerns the constitutional validity of the 2009 Act.
Introduction
3. To say that "a thing is constitutional is not to say that it is desirable" [see Dennis v. United States, (1950) 341 US 494].
4. A fundamental principle for the interpretation of a written Constitution has been spelt out in R. v. Burah [reported in (1878) 5 I.A. 178] which reads as under:
"The established Courts of Justice, when a question
arises whether the prescribed limits have been
exceeded, must of necessity determine that question;
and the only way in which they can properly do so, is
by looking to the terms of the Constitution by which,
affirmatively, the legislative powers were created, and
by which, negatively, they are restricted. If what has
been done is legislation, within the general scope of
the affirmative words which give the power, and if it
violates no express condition or restriction by which
that power is limited it is not for any Court to inquire
further, or to enlarge constructively those conditions
and restrictions".
5. Education is a process which engages many different
actors : the one who provides education (the teacher, the
owner of an educational institution, the parents), the one who
3
receives education (the child, the pupil) and the one who is
legally responsible for the one who receives education (the
parents, the legal guardians, society and the State). These
actors influence the right to education. The 2009 Act makes
the Right of Children to Free and Compulsory Education
justiciable. The 2009 Act envisages that each child must
have access to a neighbourhood school. The 2009 Act has
been enacted keeping in mind the crucial role of Universal
Elementary Education for strengthening the social fabric of
democracy through provision of equal opportunities to all.
The Directive Principles of State Policy enumerated in our
Constitution lay down that the State shall provide free and
compulsory education to all children upto the age of 14 years.
The said Act provides for right (entitlement) of children to free
and compulsory admission, attendance and completion of
elementary education in a neighbourhood school. The word
"Free" in the long title to the 2009 Act stands for removal by
the State of any financial barrier that prevents a child from
completing 8 years of schooling. The word "Compulsory" in
that title stands for compulsion on the State and the parental
duty to send children to school. To protect and give effect to
this right of the child to education as enshrined in Article 21
4
and Article 21A of the Constitution, the Parliament has
enacted the 2009 Act.
6. The 2009 Act received the assent of the President on
26.8.2009. It came into force w.e.f. 1.4.2010. The provisions
of this Act are intended not only to guarantee right to free and
compulsory education to children, but it also envisages
imparting of quality education by providing required
infrastructure and compliance of specified norms and
standards in the schools. The Preamble states that the 2009
Act stands enacted inter alia to provide for free and
compulsory education to all children of the age of 6 to 14
years. The said Act has been enacted to give effect to Article
21A of the Constitution.
Scope of the 2009 Act
7. Section 3(1) of the 2009 Act provides that every child of
the age of 6 to 14 years shall have a right to free and
compulsory education in a neighbourhood school till
completion of elementary education. Section 3(2) inter alia
provides that no child shall be liable to pay any kind of fee or
charges or expenses which may prevent him or her from
pursuing and completing the elementary education. An
educational institution is charitable. Advancement of
5
education is a recognised head of charity. Section 3(2) has
been enacted with the object of removing financial barrier
which prevents a child from accessing education. The other
purpose of enacting Section 3(2) is to prevent educational
institutions charging capitation fees resulting in creation of a
financial barrier which prevents a child from accessing or
exercising its right to education which is now provided for
vide Article 21A. Thus, sub-Section (2) provides that no child
shall be liable to pay any kind of fee or charges or expenses
which may prevent him or her from pursuing or completing
the elementary education. Section 4 inter alia provides for
special provision for children not admitted to or who have not
completed elementary education. Section 5 deals with the
situation where there is no provision for completion of
elementary education, then, in such an event, a child shall
have a right to seek transfer to any other school, excluding
the school specified in sub-clauses (iii) and (iv) of clause (n) of
Section 2, for completing his or her elementary education.
Chapter III provides for duties of appropriate government,
local authority and parents. Section 6 imposes an obligation
on the appropriate government and local authority to
establish a school within such areas or limits of
6
neighbourhood, as may be prescribed, where it is not so
established, within 3 years from the commencement of the
2009 Act. The emphasis is on providing "neighbourhood
school" facility to the children at the Gram Panchayat level.
Chapter IV of the 2009 Act deals with responsibilities of
schools and teachers. Section 12 (1)(c) read with Section 2(n)
(iii) and (iv) mandates that every recognised school imparting
elementary education, even if it is an unaided school, not
receiving any kind of aid or grant to meet its expenses from
the appropriate government or the local authority, is obliged
to admit in Class I, to the extent of at least 25% of the
strength of that class, children belonging to weaker section
and disadvantaged group in the neighbourhood and provide
free and compulsory elementary education till its completion.
As per the proviso, if the School is imparting pre-school
education, the same regime would apply. By virtue of Section
12(2) the unaided school which has not received any land,
building, equipment or other facilities, either free of cost or at
concessional rate, would be entitled for reimbursement of the
expenditure incurred by it to the extent of per child
expenditure incurred by the State, or the actual amount
charged from the child, whichever is less, in such manner as
7
may be prescribed. Such reimbursement shall not exceed per
child expenditure incurred by a school established, owned or
controlled by the appropriate government or a local authority.
Section 13 envisages that no school or person shall, while
admitting a child, collect any capitation fee and subject the
child or his or her parents to any screening procedure.
Section 15 mandates that a child shall be admitted in a
school at the commencement of the academic year or within
the prescribed extended period. Sections 16 and 17 provide
for prohibition of holding back and expulsion and of physical
punishment or mental harassment to a child. Section 18
postulates that after the commencement of the 2009 Act no
school, other than the excepted category, can be established
or can function without obtaining a certificate of recognition
from the appropriate authority. The appropriate authority
shall be obliged to issue the certificate of recognition within
the prescribed period specifying the conditions there for, if the
school fulfills the norms and standards specified under
Sections 19 and 25 read with the Schedule to the 2009 Act.
In the event of contravention of the conditions of recognition,
the prescribed authority can withdraw recognition after giving
an opportunity of being heard to such school. The order of
8
withdrawal of recognition should provide a direction to
transfer the children studying in the de-recognised school to
be admitted to the specified neighbourhood school. Upon
withdrawal of recognition, the de-recognised school cannot
continue to function, failing which, is liable to pay fine as per
Section 19(5). If any person establishes or runs a school
without obtaining certificate of recognition, or continues to
run a school after withdrawal of the recognition, shall be
liable to pay fine as specified in Section 19(5). The norms and
standards for establishing or for grant of recognition to a
school are specified in Section 19 read with the Schedule to
the 2009 Act. All schools which are established before the
commencement of the 2009 Act in terms of Section 19(2) are
expected to comply with specified norms and standards
within 3 years from the date of such commencement. Failure
to do so would entail in de-recognition of such school.
Section 22 postulates that the School Management
Committee constituted under Section 21, shall prepare a
School Development Plan in the prescribed manner. Section
22(2) provides that the School Development Plan so prepared
shall be the basis for the grants to be made by the
appropriate government or local authority, as the case may
9
be. That plan, however, cannot have any impact on
consideration of application for grant of recognition for
establishing an unaided school. To ensure that teachers
should contribute in imparting quality education in the
school itself, Section 28 imposes total prohibition on them to
engage in private tuition or private teaching activities.
Chapter VI inter alia provides for protection of rights of
children. Section 32 thus provides that any person having
grievance relating to the right of child under the 2009 Act,
may make a written complaint to the local authority having
jurisdiction, who in turn is expected to decide it within three
months after affording a reasonable opportunity of being
heard to the parties concerned. In addition, in terms of
Section 31, the Commissions constituted under the
provisions of the Commissions for Protection of Child Rights
Act, 2005 can monitor the child's right to education, so as to
safeguard the right of the child upon receiving any complaint
in that behalf relating to free and compulsory education.
8. By virtue of the 2009 Act, all schools established prior to
the commencement of the said Act are thus obliged to fulfill
the norms and standards specified inter alia in Sections 25,
26 and the Schedule of that Act. [See Section 19(2)]. The
10
State is also expected to first weed out those schools which
are non-performing, or under-performing or non-compliance
schools and upon closure of such schools, the students and
the teaching and non-teaching staff thereof should be
transferred to the neighbourhood school. The provision is
meant not only to strengthen the latter school by adequate
number of students but to consolidate and to impart quality
education due to the addition of teaching staff. Needless to
observe, that if there is inadequate response to the
government funded school, it is but appropriate that either
the divisions thereof or the school itself be closed and the
students and staff of such schools be transferred to a
neighbourhood school by resorting to Section 18(3) of the
2009 Act. Only after taking such decisions could the School
Development Plan represent the correct position regarding
the need of government aided schools in every locality across
the State. Besides, it will ensure proper and meaningful
utilization of public funds. In absence of such exercise, the
end result would be that on account of existing non-
performing or under-performing or non-compliance schools,
the School Development Plan would not reckon that locality
for establishment of another school. In our view, even the
11
State Government(s), by resorting to the provision of the 2009
Act, must take opportunity to re-organise its financial outflow
at the micro level by weeding out the non-performing or
under-performing or non-compliance schools receiving grant-
in- aid, so as to ensure that only such government funded
schools, who fulfill the norms and standards, are allowed to
continue, to achieve the object of the 2009 Act of not only
providing free and compulsory education to the children in
the neighbourhood school but also to provide quality
education. Thus, there is a power in the 2009 Act coupled
with the duty of the State to ensure that only such
government funded schools, who fulfill the norms and
standards, are allowed to continue with the object of
providing free and compulsory education to the children in
the neighbourhood school.
Validity and applicability of the 2009 Act qua unaided
non-minority schools
9. To begin with, we need to understand the scope of
Article 21A. It provides that the State shall provide free and
compulsory education to all children of the age of 6 to 14
years in such manner as the State may, by law, determine.
Thus, under the said Article, the obligation is on the State to
12
provide free and compulsory education to all children of
specified age. However, under the said Article, the manner in
which the said obligation will be discharged by the State has
been left to the State to determine by law. Thus, the State
may decide to provide free and compulsory education to all
children of the specified age through its own schools or
through government aided schools or through unaided private
schools. The question is whether such a law transgresses
any constitutional limitation? In this connection, the first
and foremost principle we have to keep in mind is that what
is enjoined by the directive principles (in this case Articles 41,
45 and 46) must be upheld as a "reasonable restriction"
under Articles 19(2) to 19(6). As far back as 1952, in State of
Bihar v. Maharajadhiraja Sir Kameshwar Singh of
Darbhanga [(1952) SCR 889], this Court has illustrated how a
directive principle may guide the Court in determining crucial
questions on which the validity of an important enactment
may be hinged. Thus, when the courts are required to decide
whether the impugned law infringes a fundamental right, the
courts need to ask the question whether the impugned law
infringes a fundamental right within the limits justified by the
directive principles or whether it goes beyond them. For
13
example, the scope of the right of equality of opportunity in
matters relating to employment (Article 16) to any office in the
State appears more fully defined when read with the
obligation of the State to promote with special care the
economic and other interests of the weaker sections (Article
46). Similarly, our understanding of the right "to practice any
profession or occupation" [Article 19(1)(g)] is clarified when we
read along with that right the obligation of the State to see
that the health of the workers and the tender age of the
children are not abused (Article 39). Thus, we need to
interpret the fundamental rights in the light of the
directive principles. The above principles are very relevant
in this case because the very content of Article 21A comes
from reading of Articles 41, 45 and 46 and, more particularly,
from Article 45 (as it then stood before the Constitution
(Eighty sixth Amendment) Act, 2002). It has been urged
before us that Article 45, as it then stood, imposed obligation
on the State to provide for free and compulsory education for
all children until they complete the age of 14 years and that
the said obligation cannot be shifted or passed on to an
unaided school, as defined in Section 2(n)(iv) of the 2009 Act.
To answer the said contention, one needs to appreciate the
14
scope of Articles 21, 21A, 19(1)(g) and Articles 41, 45 and 46
of the Constitution. At the outset, it may be stated, that
fundamental rights have two aspects they act as fetter on
plenary legislative powers and, secondly, they provide
conditions for fuller development of our people including their
individual dignity. Right to live in Article 21 covers access to
education. But unaffordability defeats that access. It defeats
the State's endeavour to provide free and compulsory
education for all children of the specified age. To provide for
free and compulsory education in Article 45 is not the same
thing as to provide free and compulsory education. The word
"for" in Article 45 is a preposition. The word "education" was
read into Article 21 by the judgments of this Court. However,
Article 21 merely declared "education" to fall within the
contours of right to live. To provide for right to access
education, Article 21A was enacted to give effect to Article 45
of the Constitution. Under Article 21A, right is given to the
State to provide by law "free and compulsory education".
Article 21A contemplates making of a law by the State. Thus,
Article 21A contemplates right to education flowing from the
law to be made which is the 2009 Act, which is child centric
and not institution centric. Thus, as stated, Article 21A
15
provides that the State shall provide free and compulsory
education to all children of the specified age in such manner
as the State may, by law, determine. The manner in which
this obligation will be discharged by the State has been left to
the State to determine by law. The 2009 Act is thus enacted
in terms of Article 21A. It has been enacted primarily to
remove all barriers (including financial barriers) which impede
access to education. One more aspect needs to be
highlighted. It is not in dispute that education is a recognised
head of "charity" [see T.M.A. Pai Foundation v. State of
Karnataka (2002) 8 SCC 481]. Therefore, even according to
T.M.A. Pai Foundation, if an educational institution goes
beyond "charity" into commercialization, it would not be
entitled to protection of Article 19(1)(g). This is where the
paradox comes in. If education is an activity which is
charitable, could the unaided non-minority educational
institution contend that the intake of 25% children belonging
to weaker section and disadvantaged group only in class I as
provided for in Section 12(1)(c) would constitute violation of
Article 19(1)(g)? Would such a provision not be saved by the
principle of reasonable restriction imposed in the interest of
the general public in Article 19(6) of the Constitution?
16
10. Coming to the principle of reasonableness, it may be
stated, that though subject-wise, Article 21A deals with
access to education as against right to establish and
administer educational institution in Article 19(1)(g), it is now
not open to anyone to contend that the law relating to right to
access education within Article 21A does not have to meet the
requirement of Article 14 or Article 19 for its reasonableness.
[See Khudiram Das v. State of West Bengal reported in
(1975) 2 SCR 832] After the judgment of this Court in
Maneka Gandhi v. Union of India [(1978) 1 SCC 248], the
principle of reasonableness is applicable to Article 14 of the
Constitution. As held by this Court in Glanrock Estate
Private Limited v. State of Tamil Nadu [(2010) 10 SCC 96],
Article 21 (right to life) remains the core of the Constitution
around which Article 14, Article 19 and others revolve. In
other words, all other fundamental rights in Part III would be
dependent upon right to life in Article 21 as interpreted by
this Court to include right to live with dignity, right to
education, etc. At the end of the day, whether one adopts the
pith and substance test or the nature and character of the
legislation test or the effect test, one finds that all these tests
17
have evolved as rules of interpretation only as a matter of
reasonableness. They help us to correlate Article 21 with
Article 14, Article 19 and, so on. Applying the above principle
of reasonableness, though the right to access education falls
as a subject matter under Article 21A and though to
implement the said Article, Parliament has enacted the 2009
Act, one has to judge the validity of the said Act in the light of
the principle of reasonableness in Article 19(6), particularly,
when in T.M.A. Pai Foundation and in P.A. Inamdar v.
State of Maharashtra [(2005) 6 SCC 537], it has been held
that right to establish and administer an educational
institution falls under Article 19(1)(g) of the Constitution.
Thus, the question which arises for determination is
whether Section 12(1)(c) of the 2009 Act is a reasonable
restriction on the non-minority's right to establish and
administer an unaided educational institution under Article
19(6)? Article 21 says that "no person shall be deprived of
his life...except according to the procedure established by law"
whereas Article 19(1)(g) under the chapter "right to freedom"
says that all citizens have the right to practice any profession
or to carry on any occupation, trade or business which
freedom is not absolute but which could be subjected to
18
social control under Article 19(6) in the interest of general
public. By judicial decisions, right to education has been
read into right to life in Article 21. A child who is denied right
to access education is not only deprived of his right to live
with dignity, he is also deprived of his right to freedom of
speech and expression enshrined in Article 19(1)(a). The
2009 Act seeks to remove all those barriers including
financial and psychological barriers which a child belonging
to the weaker section and disadvantaged group has to face
while seeking admission. It is true that, as held in T.M.A. Pai
Foundation as well as P.A. Inamdar, the right to establish
and administer an educational institution is a fundamental
right, as long as the activity remains charitable under Article
19(1)(g), however, in the said two decisions the correlation
between Articles 21 and 21A, on the one hand, and Article
19(1)(g), on the other, was not under consideration. Further,
the content of Article 21A flows from Article 45 (as it then
stood). The 2009 Act has been enacted to give effect to Article
21A. For the above reasons, since the Article 19(1)(g) right is
not an absolute right as Article 30(1), the 2009 Act cannot be
termed as unreasonable. To put an obligation on the unaided
non-minority school to admit 25% children in class I under
19
Section 12(1)(c) cannot be termed as an unreasonable
restriction. Such a law cannot be said to transgress any
constitutional limitation. The object of the 2009 Act is to
remove the barriers faced by a child who seeks admission to
class I and not to restrict the freedom under Article 19(1)(g).
The next question that arises for determination is whether
Section 12(1)(c) of the 2009 Act impedes the right of the non-
minority to establish and administer an unaided educational
institution? At the outset, it may be noted that Article 19(6)
is a saving and enabling provision in the Constitution as it
empowers the Parliament to make a law imposing reasonable
restriction on the Article 19(1)(g) right to establish and
administer an educational institution while Article 21A
empowers the Parliament to enact a law as to the manner in
which the State will discharge its obligation to provide for free
and compulsory education. If the Parliament enacts the law,
pursuant to Article 21A, enabling the State to access the
network (including infrastructure) of schools including
unaided non-minority schools would such a law be said to be
unconstitutional, not saved under Article 19(6)? Answer is in
the negative. Firstly, it must be noted that the expansive
provisions of the 2009 Act are intended not only to guarantee
20
the right to free and compulsory education to children, but to
set up an intrinsic regime of providing right to education to all
children by providing the required infrastructure and
compliance of norms and standards. Secondly, unlike other
fundamental rights, the right to education places a burden
not only on the State, but also on the parent/ guardian of
every child [Article 51A(k)]. The Constitution directs both
burdens to achieve one end: the compulsory education of
children free from the barriers of cost, parental obstruction or
State inaction. Thus, Articles 21A and 51A(k) balance the
relative burdens on the parents and the State. Thus, the
right to education envisages a reciprocal agreement between
the State and the parents and it places an affirmative burden
on all stakeholders in our civil society. Thirdly, right to
establish an educational institution has now been recognized
as a fundamental right within the meaning of Article 19(1)(g).
This view is enforced by the opinion of this Court in T.M.A.
Pai Foundation and P.A. Inamdar that all citizens have a
right to establish and administer educational institutions
under Articles 19(1)(g) and 26 but that right is subject to the
provisions of Articles 19(6) and 26(a). The constitutional
obligation of the State to provide for free and compulsory
21
education to the specified category of children is co-extensive
with the fundamental right guaranteed under Article 19(1)(g)
to establish an educational institution. Lastly, the
fundamental right to establish an educational institution
cannot be confused with the right to ask for recognition or
affiliation. The exercise of a fundamental right to establish
and administer an educational institution can be controlled in
a number of ways. Indeed, matters relating to the right to
grant of recognition and/ or affiliation are covered within the
realm of statutory right, which, however, will have to satisfy
the test of reasonable restrictions [see Article 19(6)]. Thus,
from the scheme of Article 21A and the 2009 Act, it is clear
that the primary obligation is of the State to provide for free
and compulsory education to children between the age of 6 to
14 years and, particularly, to children who are likely to be
prevented from pursuing and completing the elementary
education due to inability to afford fees or charges.
Correspondingly, every citizen has a right to establish and
administer educational institution under Article 19(1)(g) so
long as the activity remains charitable. Such an activity
undertaken by the private institutions supplements the
primary obligation of the State. Thus, the State can regulate
22
by law the activities of the private institutions by imposing
reasonable restrictions under Article 19(6). The 2009 Act not
only encompasses the aspects of right of children to free and
compulsory education but to carry out the provisions of the
2009 Act, it also deals with the matters pertaining to
establishment of school (s) as also grant of recognition (see
section 18). Thus, after the commencement of the 2009 Act,
the private management intending to establish the school has
to make an application to the appropriate authority and till
the certificate is granted by that authority, it cannot establish
or run the school. The matters relevant for the grant of
recognition are also provided for in Sections 19, 25 read with
the Schedule to the Act. Thus, after the commencement of
the 2009 Act, by virtue of Section 12(1)(c) read with Section
2(n)(iv), the State, while granting recognition to the private
unaided non-minority school, may specify permissible
percentage of the seats to be earmarked for children who may
not be in a position to pay their fees or charges. In T.M.A.
Pai Foundation, this Court vide para 53 has observed that
the State while prescribing qualifications for admission in a
private unaided institution may provide for condition of giving
admission to small percentage of students belonging to
23
weaker sections of the society by giving them freeships, if not
granted by the government. Applying the said law, such a
condition in Section 12(1)(c) imposed while granting
recognition to the private unaided non-minority school cannot
be termed as unreasonable. Such a condition would come
within the principle of reasonableness in Article 19(6).
Indeed, by virtue of Section 12(2) read with Section 2(n)(iv),
private unaided school would be entitled to be reimbursed
with the expenditure incurred by it in providing free and
compulsory education to children belonging to the above
category to the extent of per child expenditure incurred by the
State in a school specified in Section 2(n)(i) or the actual
amount charged from the child, whichever is less. Such a
restriction is in the interest of the general public. It is also a
reasonable restriction. Such measures address two aspects,
viz., upholding the fundamental right of the private
management to establish an unaided educational institution
of their choice and, at the same time, securing the interests of
the children in the locality, in particular, those who may not
be able to pursue education due to inability to pay fees or
charges of the private unaided schools. We also do not see
any merit in the contention that Section 12(1)(c) violates
24
Article 14. As stated, Section 12(1)(c) inter alia provides for
admission to class I, to the extent of 25% of the strength of
the class, of the children belonging to weaker section and
disadvantaged group in the neighbourhood and provide free
and compulsory elementary education to them till its
completion. The emphasis is on "free and compulsory
education". Earmarking of seats for children belonging to a
specified category who face financial barrier in the matter of
accessing education satisfies the test of classification in
Article 14. Further, Section 12(1)(c) provides for level playing
field in the matter of right to education to children who are
prevented from accessing education because they do not have
the means or their parents do not have the means to pay for
their fees. As stated above, education is an activity in which
we have several participants. There are number of
stakeholders including those who want to establish and
administer educational institutions as these supplement the
primary obligation of the State to provide for free and
compulsory education to the specified category of children.
Hence, Section 12(1)(c) also satisfies the test of
reasonableness, apart from the test of classification in Article
14.
25
11. The last question which we have to answer under this
head is whether Section 12(1)(c) runs counter to the
judgments of this Court in T.M.A. Pai Foundation and P.A.
Inamdar or principles laid down therein? According to the
petitioners, T.M.A. Pai Foundation defines various rights
and has held vide para 50 that right to establish and
administer broadly comprises the following:- (i) right to admit
students (ii) right to set up a reasonable fee structure etc. (the
rest are not important for discussion under this Head). That,
T.M.A. Pai Foundation lays down the essence and structure
of rights in Article 19(1)(g) insofar as they relate to
educational institutions in compliance with (a) the Charity
Principle (b) the Autonomy Principle (c) the Voluntariness
Principle (d) Anti-nationalisation (e) Co-optation Principle.
In support, reliance is placed by the petitioners on number of
paras from the above two judgments. At the outset, we may
reiterate that Article 21A of the Constitution provides that the
State shall provide free and compulsory education to all
children of the specified age in such manner as the State
may, by law, determine. Thus, the primary obligation to
provide free and compulsory education to all children of the
specified age is on the State. However, the manner in which
26
this obligation will be discharged by the State has been left to
the State to determine by law. The State may do so through
its own schools or through aided schools or through private
schools, so long as the law made in this regard does not
transgress any other constitutional limitation. This is because
Article 21A vests the power in the State to decide the manner
in which it will provide free and compulsory education to the
specified category of children. As stated, the 2009 Act has
been enacted pursuant to Article 21A. In this case, we are
concerned with the interplay of Article 21, Article 21A, on the
one hand, and the right to establish and administer
educational institution under Article 19(1)(g) read with Article
19(6). That was not the issue in T.M.A. Pai Foundation nor
in P.A. Inamdar. In this case, we are concerned with the
validity of Section 12(1)(c) of the 2009 Act. Hence, we are
concerned with the validity of the law enacted pursuant to
Article 21A placing restrictions on the right to establish and
administer educational institutions (including schools) and
not the validity of the Scheme evolved in Unni Krishnan, J.P.
v. State of Andhra Pradesh [(1993) 1 SCC 645]. The above
judgments in T.M.A. Pai Foundation and P.A. Inamdar were
not concerned with interpretation of Article 21A and the 2009
27
Act. It is true that the above two judgments have held that all
citizens have a right to establish and administer educational
institutions under Article 19(1)(g), however, the question as to
whether the provisions of the 2009 Act constituted a
restriction on that right and if so whether that restriction was
a reasonable restriction under Article 19(6) was not in issue.
Moreover, the controversy in T.M.A. Pai Foundation arose in
the light of the scheme framed in Unni Krishnan's case and
the judgment in P.A. Inamdar was almost a sequel to the
directions in Islamic Academy of Education v. State of
Karnataka [(2003) 6 SCC 697] in which the entire focus was
Institution centric and not child centric and that too in the
context of higher education and professional education where
the level of merit and excellence have to be given a different
weightage than the one we have to give in the case of
Universal Elementary Education for strengthening social
fabric of democracy through provision of equal opportunities
to all and for children of weaker section and disadvantaged
group who seek admission not to higher education or
professional courses but to Class I. In this connection, the
relevant paras from T.M.A. Pai Foundation make the
position clear. They are paras 37, 39, 40, 42, 45, 48, 49 and
28
50 (read together), 51, 53, 56, 58 - 61, 62, 67, 68, 70 etc.,
similarly, paras 26, 35, 104, 146 of P.A. Inamdar. We quote
the relevant para in support of what we have stated above:
T.M.A. Pai Foundation
Para 48 read with para 50
48. Private education is one of the most dynamic
and fastest-growing segments of post-secondary
education at the turn of the twenty-first century. A
combination of unprecedented demand for access to
higher education and the inability or unwillingness of
the Government to provide the necessary support
has brought private higher education to the forefront.
Private institutions, with a long history in many
countries, are expanding in scope and number, and
are becoming increasingly important in parts of the
world that relied almost entirely on the public sector.
50. The right to establish and administer broadly
comprises the following rights:
(a) to admit students;
(b) to set up a reasonable fee structure;
(c) to constitute a governing body;
(d) to appoint staff (teaching and non-teaching);
and
(e) to take action if there is dereliction of duty on
the part of any employees.
58. For admission into any professional
institution, merit must play an important role. While
it may not be normally possible to judge the merit of
the applicant who seeks admission into a school,
while seeking admission to a professional institution
and to become a competent professional, it is
necessary that meritorious candidates are not
unfairly treated or put at a disadvantage by
preferences shown to less meritorious but more
influential applicants. Excellence in professional
29
education would require that greater emphasis be
laid on the merit of a student seeking admission.
Appropriate regulations for this purpose may be
made keeping in view the other observations made in
this judgment in the context of admissions to
unaided institutions.
59. Merit is usually determined, for admission to
professional and higher education colleges, by either
the marks that the student obtains at the qualifying
examination or school-leaving certificate stage
followed by the interview, or by a common entrance
test conducted by the institution, or in the case of
professional colleges, by government agencies.
60. Education is taught at different levels, from
primary to professional. It is, therefore, obvious that
government regulations for all levels or types of
educational institutions cannot be identical; so also,
the extent of control or regulation could be greater
vis-a-vis aided institutions.
61. In the case of unaided private schools,
maximum autonomy has to be with the management
with regard to administration, including the right of
appointment, disciplinary powers, admission of
students and the fees to be charged. At the school
level, it is not possible to grant admissions on the
basis of merit. It is no secret that the examination
results at all levels of unaided private schools,
notwithstanding the stringent regulations of the
governmental authorities, are far superior to the
results of the government-maintained schools. There
is no compulsion on students to attend private
schools. The rush for admission is occasioned by the
standards maintained in such schools, and
recognition of the fact that State-run schools do not
provide the same standards of education. The State
says that it has no funds to establish institutions at
the same level of excellence as private schools. But
by curtailing the income of such private schools, it
disables those schools from affording the best
facilities because of a lack of funds. If this lowering of
standards from excellence to a level of mediocrity is
to be avoided, the State has to provide the difference
30
which, therefore, brings us back in a vicious circle to
the original problem viz. the lack of State funds. The
solution would appear to lie in the States not using
their scanty resources to prop up institutions that
are able to otherwise maintain themselves out of the
fees charged, but in improving the facilities and
infrastructure of State-run schools and in
subsidizing the fees payable by the students there. It
is in the interest of the general public that more good
quality schools are established; autonomy and non-
regulation of the school administration in the right of
appointment, admission of the students and the fee
to be charged will ensure that more such institutions
are established. The fear that if a private school is
allowed to charge fees commensurate with the fees
affordable, the degrees would be "purchasable" is an
unfounded one since the standards of education can
be and are controllable through the regulations
relating to recognition, affiliation and common final
examinations.
P.A. Inamdar
26. These matters have been directed to be placed
for hearing before a Bench of seven Judges under
orders of the Chief Justice of India pursuant to the
order dated 15-7-2004 in P.A. Inamdar v. State of
Maharashtra and order dated 29-7-2004 in
Pushpagiri Medical Society v. State of Kerala. The
aggrieved persons before us are again classifiable in
one class, that is, unaided minority and non-
minority institutions imparting professional
education. The issues arising for decision before us
are only three:
(i) the fixation of "quota" of
admissions/students in respect of unaided
professional institutions;
(ii) the holding of examinations for admissions
to such colleges, that is, who will hold the
entrance tests; and
(iii) the fee structure.
104. Article 30(1) speaks of "educational
31
institutions" generally and so does Article 29(2).
These articles do not draw any distinction between
an educational institution dispensing theological
education or professional or non-professional
education. However, the terrain of thought as has
developed through successive judicial
pronouncements culminating in Pai Foundation is
that looking at the concept of education, in the
backdrop of the constitutional provisions,
professional educational institutions constitute a
class by themselves as distinguished from
educational institutions imparting non-professional
education. It is not necessary for us to go deep into
this aspect of the issue posed before us inasmuch as
Pai Foundation has clarified that merit and
excellence assume special significance in the context
of professional studies. Though merit and excellence
are not anathema to non-professional education, yet
at that level and due to the nature of education
which is more general, the need for merit and
excellence therein is not of the degree as is called for
in the context of professional education.
146. Non-minority unaided institutions can also
be subjected to similar restrictions which are found
reasonable and in the interest of the student
community. Professional education should be made
accessible on the criterion of merit and on non-
exploitative terms to all eligible students on a
uniform basis. Minorities or non-minorities, in
exercise of their educational rights in the field of
professional education have an obligation and a duty
to maintain requisite standards of professional
education by giving admissions based on merit and
making education equally accessible to eligible
students through a fair and transparent admission
procedure and based on a reasonable fee structure.
12. P.A. Inamdar holds that right to establish and
administer educational institution falls in Article 19(1)(g). It
32
further holds that seat-sharing, reservation of seats, fixing of
quotas, fee fixation, cross-subsidization, etc. imposed by
judge-made scheme in professional/ higher education is an
unreasonable restriction applying the principles of
Voluntariness, Autonomy, Co-optation and Anti-
nationalisation, and, lastly, it deals with inter-relationship of
Articles 19(1)(g), 29(2) and 30(1) in the context of the minority
and non-minority's right to establish and administer
educational institutions. The point here is how does one read
the above principles of Autonomy, Voluntariness, Co-optation
and Anti-nationalisation of seats. On reading T.M.A. Pai
Foundation and P.A. Inamdar in proper perspective, it
becomes clear that the said principles have been applied in
the context of professional/ higher education where merit and
excellence have to be given due weightage and which tests do
not apply in cases where a child seeks admission to class I
and when the impugned Section 12(1)(c) seeks to remove the
financial obstacle. Thus, if one reads the 2009 Act including
Section 12(1)(c) in its application to unaided non-minority
school(s), the same is saved as reasonable restriction under
Article 19(6).
33
13. However, we want the Government to clarify the position
on one aspect. There are boarding schools and orphanages in
several parts of India. In those institutions, there are day
scholars and boarders. The 2009 Act could only apply to day
scholars. It cannot be extended to boarders. To put the
matter beyond doubt, we recommend that appropriate
guidelines be issued under Section 35 of the 2009 Act
clarifying the above position.
Validity and applicability of the 2009 Act qua unaided
minority schools
14. The inspiring preamble to our Constitution shows that
one of the cherished objects of our Constitution is to assure
to all its citizens the liberty of thought, expression, belief,
faith and worship. To implement and fortify these purposes,
Part III has provided certain fundamental rights including
Article 26 of the Constitution which guarantees the right of
every religious denomination or a section thereof, to establish
and maintain institutions for religious and charitable
purposes; to manage its affairs in matters of religion; to
acquire property and to administer it in accordance with law.
Articles 29 and 30 confer certain educational and cultural
rights as fundamental rights.
34
15. Article 29(1) confers on any section of the citizens a right
to conserve its own language, script or culture by and
through educational institutions and makes it obvious that a
minority could conserve its language, script or culture and,
therefore, the right to establish institutions of its choice is a
necessary concomitant to the right to conserve its distinctive
language, script or culture and that right is conferred on all
minorities by Article 30(1). That right, however, is subject to
the right conferred by Article 29(2).
16. Article 30(1) gives the minorities two rights: (a) to
establish and (b) to administer educational institutions of
their choice. The real import of Article 29(2) and Article 30(1)
is that they contemplate a minority institution with a sprinkle
of outsiders admitted into it. By admitting a non-member
into it the minority institution does not shed its character and
cease to be a minority institution.
17. The key to Article 30(1) lies in the words "of their choice".
18. The right established by Article 30(1) is a fundamental
right declared in terms absolute unlike the freedoms
guaranteed by Article 19 which is subject to reasonable
restrictions. Article 30(1) is intended to be a real right for the
35
protection of the minorities in the matter of setting up
educational institutions of their own choice. However,
regulations may lawfully be imposed either by legislative or
executive action as a condition of receiving grant or of
recognition. However, such regulation must satisfy the test of
reasonableness and that such regulation should make the
educational institution an effective vehicle of education for
the minority community or for the persons who resort to it.
Applying the above test in the case of Rev. Sidhajbhai Sabhai
v. State of Bombay [1963] SCR 837, this Court held the rule
authorizing reservation of seats and the threat of withdrawal
of recognition under the impugned rule to be violative of
Article 30(1).
19. The above well-settled principles have to be seen in the
context of the 2009 Act enacted to implement Article 21A of
the Constitution. At the very outset, the question that arises
for determination is what was the intention of the
Parliament? Is the 2009 Act intended to apply to unaided
minority schools? In answer to the above question, it is
important to note that in the case of P.A. Inamdar, this Court
held that there shall be no reservations in private unaided
36
colleges and that in that regard there shall be no difference
between the minority and non-minority institutions.
However, by the Constitution (Ninety-third Amendment) Act,
2005, Article 15 is amended. It is given Article 15(5). The
result is that P.A. Inamdar has been overruled on two
counts: (a) whereas this Court in P.A. Inamdar had stated
that there shall be no reservation in private unaided colleges,
the Amendment decreed that there shall be reservations; (b)
whereas this Court in P.A. Inamdar had said that there shall
be no difference between the unaided minority and non-
minority institutions, the Amendment decreed that there shall
be a difference. Article 15(5) is an enabling provision and it
is for the respective States either to enact a legislation or
issue an executive instruction providing for reservation except
in the case of minority educational institutions referred to in
Article 30(1). The intention of the Parliament is that the
minority educational institution referred to in Article 30(1) is
a separate category of institutions which needs protection of
Article 30(1) and viewed in that light we are of the view that
unaided minority school(s) needs special protection under
Article 30(1). Article 30(1) is not conditional as Article 19(1)(g).
In a sense, it is absolute as the Constitution framers thought
37
that it was the duty of the Government of the day to protect
the minorities in the matter of preservation of culture,
language and script via establishment of educational
institutions for religious and charitable purposes [See: Article
26]. Reservations of 25% in such unaided minority schools
result in changing the character of the schools if right to
establish and administer such schools flows from the right to
conserve the language, script or culture, which right is
conferred on such unaided minority schools. Thus, the 2009
Act including Section 12(1)(c) violates the right conferred on
such unaided minority schools under Article 30(1). However,
when we come to aided minority schools we have to keep in
mind Article 29(2). As stated, Article 30(1) is subject to Article
29(2). The said Article confers right of admission upon every
citizen into a State-aided educational institution. Article
29(2) refers to an individual right. It is not a class right. It
applies when an individual is denied admission into an
educational institution maintained or aided by the State. The
2009 Act is enacted to remove barriers such as financial
barriers which restrict his/her access to education. It is
enacted pursuant to Article 21A. Applying the above tests, we
hold that the 2009 Act is constitutionally valid qua aided
38
minority schools.
Conclusion (according to majority):
20. Accordingly, we hold that the Right of Children to Free
and Compulsory Education Act, 2009 is constitutionally valid
and shall apply to the following:
(i) a school established, owned or controlled by the
appropriate Government or a local authority;
(ii) an aided school including aided minority school(s)
receiving aid or grants to meet whole or part of its
expenses from the appropriate Government or the local
authority;
(iii) a school belonging to specified category; and
(iv) an unaided non-minority school not receiving any kind
of aid or grants to meet its expenses from the
appropriate Government or the local authority.
However, the said 2009 Act and in particular Sections
12(1)(c) and 18(3) infringes the fundamental freedom
guaranteed to unaided minority schools under Article 30(1)
and, consequently, applying the R.M.D. Chamarbaugwalla v.
Union of India [1957 SCR 930] principle of severability, the
39
said 2009 Act shall not apply to such schools.
21. This judgment will operate from today. In other words,
this will apply from the academic year 2012-13. However,
admissions given by unaided minority schools prior to the
pronouncement of this judgment shall not be reopened.
22. Subject to what is stated above, the writ petitions are
disposed of with no order as to costs.
.......................................CJI
(S. H. Kapadia)
.........................................J.
(Swatanter Kumar)
New Delhi;
April 12, 2012
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