SOCIETY FOR UN-AIDED P.SCHOOL OF RAJASTHAN v. U.O.I. & ANR

Citation: [2012] 2 S.C.R. 715

Court: Supreme Court of India

Bench: S.H. KAPADIA, K.S. RADHAKRISHNAN, SWATANTER KUMAR

Case summary

SOCIETY FOR UN-AIDED P.SCHOOL OF RAJASTHAN v. U.O.I. & ANR.pdf

Judgment text

[2012] 2 S. C. R. 715 SOCIETY FOR UN-AIDED P. SCHOOL OF RAJASTHAN v. U. 0. 1. & ANR. (Writ Petition (Civil) No. 95 of 2010) APRIL 12, 2012 [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 - 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 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 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 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 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 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. 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 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 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 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 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 principle of social inclusiveness. Disposing of the petitions, the Court HELD: RAJASTHAN v. U. 0. 1. Per Majority [BY S. H. KAPADIA, CJI. (FOR HIMSELF AND 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 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 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] 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 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 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 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 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 ' 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 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 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 19(1)(g). [Para 9) [839-D-H] RAJASTHAN v. U. 0. 1. 3. 4.

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 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 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, 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 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 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- 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; *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. 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 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 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 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] 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 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 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 nonminority school cannot be termed as unreasonable. Such a condition would come within the principle of RAJASTHAN v. U. 0. 1. reasonableness in Article 19(6).

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 un;. tided 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 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 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 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] 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 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 **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 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 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 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 and Ors. (2002) 8 sec 481 : 2002 (3) Suppl. SCR 587; **P. A. RAJASTHAN v. U. 0. 1. lnamdar v. State of Maharashtra (2005) 6 SCC 537 : 2005 (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) 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 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 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 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 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 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 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. [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 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 837 - relied on. State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga (1952) SCR 889 - referred to. 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 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] 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 nonminority schools not receiving any kind of aid or grants RAJASTHAN v. U. 0. 1. to meet their expenses from the appropriate 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 regard to appropriation of quota by the State or its reservation policy under Section 12(1)(c) of the Act Such an appropriation of seats can also not be held to be a regulatory measure in the interest of the minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution. [Para 148 (4)] [829-E-F] 1. 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. [Para 148 (5)] [829-G] 1. 6. In the jurisdictions where socio-economic rights have been given the status of constitutional rights, those 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 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 responsibilities of State and non-state actors for realization of children's rights. Social inclusiveness is stated to be the motto of the Act which was enacted to accomplish the State's obligation to provide free and compulsory education to children of the age 6 to 14 years, in that process, compulsorily co-opting, private educational institutions as well. A shift in State's functions, to non-state actors in the field of health care, education, social services etc. has been keenly felt due to liberalization of economy and privatization of State functions.

[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 respect children's rights cast a negative duty of nonviolation 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- 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 children from violence or abuse, to protect children from economic exploitation, hazardous work and to ensure human treatment of children. Non-State actors exercising the State functions like establishing and running private, educational institutions are also expected to respect and protect the rights of the child, but they are, not expected RAJASTHAN v. U. 0. 1. to surrender their rights constitutionally guaranteed. [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 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] 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 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 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] 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 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 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· 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 objective is faulty and constitutionally impermissible. Possibly, the object and purpose of the Act could be achieved by limiting or curtailing the fundamental rights guaranteed to the unaided non-minority and minority educational institutions under Article 19(1)(g) and Article 30(1) or imposing a positive obligation on them under 0 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 minority private educational institutions, to admit 25% of the students on the fee structure determined by the State, is nothing but an invasion as well as appropriation of the rights guaranteed to them under Article 19(1)(g) and Article 30(1) of the Constitution.

Legislature cannot under the guise of interest of general public "arbitrarily cast burden or responsibility on private citizens running a private school, totally unaided". Section 12(1)(c) was enacted not only to offload or outsource the constitutional obligation of the State to the private unaided educational institutions, but also to burden them with duties which they do not constitutionally owe to children included in Section 2(d) or (e) of the Act or to their parents. [Para 111] [809-H; 810-A-C] 1. 15. Right to establish and administer and run a RAJASTHAN v. U. 0. 1. private unaided educational institution is the very openness of personal freedom and opportunity which is constitutionally protected, which right cannot be robbed or coerced against his will at the threat of nonrecognition or non-affiliation.

Right to establish a private unaided educational institution and to make reasonable profit is recognized by Article 19(1)(g) so as to achieve economic security and stability even if it is for charity. Rights protected under Article 19(1)(g) are fundamental in nature, inherent and are sacred and valuable rights of citizens which can be abridged only to the extent that is necessary to ensure public peace, health, morality etc. and to the extent of the constitutional limitation provided in that Article. Reimbursement of fees at the Government rate is not an answer when the unaided private educational institutions have no constitutional obligation and their Constitutional rights are invaded. [Para 113] [810-H; 811-A-D] 1. 16. Considerable money by way of capital investment and overhead expenses would go into for establishing and maintaining a good quality unaided educational institution.

Section 12(1)(c) would amount to appropriation of one's labour and makes an inroad into the autonomy of the institution. Unaided educational institutions, over a period of time, might have established their own reputation and goodwill, a quantifiable asset. Nobody can be allowed to rob that without their permission, not even the State. Section 12(1)(c) is not a restriction which falls under Article 19(6) but cast a burden on private unaided educational institutions to admit and teach children at the State dictate, on a fee structure determined by the State which 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 effect to the Directive Principles of the State Policy, but so far as the present case is concerned, neither the Directive Principles of the State Policy nor Article 21A cast any duty or obligation on the unaided private educational institutions to provide free and compulsory education to children of the age of 6 to 14. Section 12(1)(c) has, therefore, no foundation either on the Directive Principles of the State Policy or Article 21A of the Constitution, so as to rope in unaided educational institutions. Directive Principles of the State Policy as well as Article 21A cast the constitutional obligation· on the State and State alone. State, cannot offload or outsource that Constitutional obligation to the private unaided educational institutions and the same can be done only by a constitutional provision and not by an ordinary legislation.

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] . 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 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. [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 affirmative action to achieve socio-economic justice RAJASTHAN v. U. 0. 1. constitutionally valid, the same has been done by carrying out necessary amendments in the Constitution, not through legislations, lest they may make an inroad into the fundamental rights guaranteed to the citizens. Rights guaranteed to the unaided non-minority and minority educational institutions under Article 19(1)(g) and Article 30(1) as explained in *Pai Foundation and reiterated in **/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 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 **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) 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). 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 ·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 1. 22. Principles laid down by *Pai Foundation and in 8 **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 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 principles and thought it fit to cast the burden on the 0 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 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 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 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 constitutional principle laid down by courts under the RAJASTHAN v. U. 0. 1. 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 **/namdar, Court, in such situations, owe a duty to lift the veil of the form and appearance to discover the true character and nature of the legislation and if it has the effect of bypassing or 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] 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 **/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 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 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 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 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 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] *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 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 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 . ··, RAJASTHAN V. U. 0. 1. ofRajasthan (1997) 6 SCC 241: 1997 (3) Suppl. SCR 404; 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 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 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 (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 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 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 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 (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) 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 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 (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 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 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, 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] . *T. M. A. Pai Foundation and Ors. v. State of Kamataka RAJASTHAN v. U. 0. 1. and Ors. (2002) 8 SCC 481: 2002 (3) Suppl. SC_R 587; **P. 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. 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, 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 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 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] 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 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 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 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, considering the overall purpose and object of the Act.

Section 15 states that a child shall not be denied admission even if the child is seeking admission subsequent to the extended period. A child who evinces\. an interest in pursuing education shall never be discouraged, so that the purpose envisaged under the Act could be achieved. 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 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 just and humane society. Provision has been incorporated in the Act to provide for special tuition for 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 · often not due the child's fault, but several other factors. RAJASTHAN v. U. 0. I. No legal infirmity is found in that provision, hence the 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 a minority institution should comply with certain basic norms is in consonance with the values enshrined in the Constitution and cannot be considered to be violative of the rights guaranteed to them under Article 30(1).

Further, the curriculum framework contemplated by Section 29(1) does not subvert the freedom of an institution to choose the nature of education that it imparts, as well as the affiliation with the CBSE or other educational boards. Over and above, what has been prescribed by those affiliating or recognizing bodies is that these schools have also to follow the curriculum framework contemplated by Section 29(1) so as to achieve the object and purpose of the Act. [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 the child would complete his elementary education. The Legislature noticed that there are a large number of children from the disadvantaged groups and weaker sections who drop out of the schools before completing the elementary education, if promotion to higher class is subject to screening.

Past experience shows that many of such children have dropped out of the schools and are being exploited physically and mentally. Universal Elementary Education eluded those children due to various reasons and it is in order to curb all those maladies that the Act has provided for free and compulsory education. 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- C] 5. Madrasas, Vedic Pathsha/as etc. which predominantly provide religious instructions and do not provide for secular education stand outside the purview 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.

Article 25 makes it clear that the State reserves the right 0 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 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] 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 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, Aliana - referred to. RAJASTHAN v. U. 0. 1. 6. 2. The legislation, in its present form, has got many 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, 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] 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 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 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 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 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 andOrs, (1992) 3 SCC 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) · 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. SCR 474 - referred to. 0 Herron v. Rathmines and Rathgar Improvement Commissioners (1892) AC 498 at p. 502 - referred to. RAJASTHAN v. U. 0. 1. . 2003 (2) Suppl. SCR 474 Referred to. Para 11 (1963) SCR 837 Referred to. Para 18 In the Judgment of K. S. Radhakrishnan, J: 1992 (3) SCR 658 Referred to. . Para 5 1993 (1) SCR 594 Referred to. Para 5 (1892) AC 498 Referred to.

Para 16 1989 (1) SCR 621 Referred to. Para 16 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 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 (1963) SCR 837 Referred to. Para 36 1983 (1) SCR 456 Referred to. Para 38 1997 (3) Suppl. SCR 404 Referred to. Para 38 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 · (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 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 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 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 2007 (1) SCR 706 Referred to. Para 60 1951 (2) SCR 525 Referred to. Para 68 2008 (4) SCR 1 Relied on. Para 71 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 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 1981 sec supp. (1) 87 Relied on. Para 84 1955 SCR 603 Referred to. Para 84 2003 (2) SCR 1136 Referred to. Para 85 321 U. S. 649 (1944) Referred to. Para 86 " RAJASTHAN v. U. 0. 1. (2011) ZACC 13 Referred to. Para 86 (1980) IR 102 Referred to. Para 86 2009 (5) SCR 913 Referred to. Para 104 CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. 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, 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. 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 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 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, 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 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, 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 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. 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 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 to Free and Compulsory Education Act 2009 (35 of 2009) [in short, the Act], which was enacted following the insertion of Article 21A by the Constitution (Eighty-sixth Amendment) Act, 2002.

Article 21A provides for free and compulsory education to all children of the age 6 to 14 years and also casts an obligation on the State to provide and ensure admission, attendance and completion of elementary education in such a manner that the State may by law determine. The Act is, therefore, enacted to provide for free and compulsory education to all children of the age 6 to 14 years and is anchored in the belief that the values of equality, social justice and democracy and the creation of just and humane society can be achieved only through a provision of inclusive elementary 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 responsibility of the schools run or supported by the appropriate government, but also of schools which are not dependant on government funds. 2.

Petitioners in all these cases, it may be mentioned, have wholeheartedly welcomed the introduction of Article 21A in the Constitution and acknowledged it as a revolutionary step providing universal elementary education for all the children. Controversy in all these cases is not with regard to the validity of Article 21A, but mainly centers around its interpretation and the validity of Sections 3, 12(1)(b) and 12(1)(c) and some other related provisions of the Act, which cast obligation on all elementary educational institutions to admit children of the age 6 to 14 years from their neighbourhood, on the principle of social inclusiveness. Petitioners also challenge certain other provisions purported to interfere with the administration, management and functioning of those institutions. I have dealt with all those issues in Parts I to V of my judgment and my conclusions are in Part VI. 3.

Part I of the judgment deals with the circumstances and background for the introduction of Article 21A and its scope and object and the interpretation given by the Constitution Benches of this Court on right to education. Part II of the judgment deals with various socio-economic rights recognized by our Constitution and the impact on other fundamental rights guaranteed to others and the measures adopted by the Parliament to remove the obstacles for realization of those rights, in cases where there is conflict. In Part Ill of the judgment, I have dealt with the obligations and responsibilities of the nonstate actors in realization of children's rights guaranteed under Article 21A and the Act. In Part IV, I have dealt with the constitutional validity of Section 12(1)(b), 12(1)(c) of the Act and in Part V, I have dealt with the challenge against other provisions of the Act and my conclusions are in Part VI. 4. Senior lawyers - Shri Rajeev Dhavan, Shri T. R. 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 Goolam E. Vahanvati, learned Attorney General and Mrs. Indira Jaising, learned Additional Solicitor General appeared for the Union of India. PART I 5. In Mohini Jain v. State of 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 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 judgment in Mohini Jain was given effect to, many of the private educational institutions would have to be closed down. Mohini Jain was affirmed in Unni Krishnan to the extent of holding that the right to education flows from Article 21 of the Constitution and charging of capitation fee was illegal. The Court partly overruled Mohini Jain and held that the right to free education is available only to children until they complete the age of 14 years and after that obligation of the State to provide education would be subject to the limits of its economic capacity and development. Private unaided recognized/affiliated educational institutions running professional courses were held entitled to charge the fee higher than that charged by government institutions for similar courses but that such a fee should not exceed the maximum limit fixed by the State.

The Court also formulated a scheme and directed every authority to impose that scheme upon institutions seeking recognition/affiliation, even if they are unaided institutions. Unni Krishnan introduced the concept of "free seats" and "payment seats" and ordered that private unaided educational institutions should not add any further conditions and were held bound by the scheme. Unni Krishnan also recognized the right to education as fundamental right guaranteed under Article 21 of the Constitution and held that the right is available to children until they complete the age of 14 years. 6. The Department of Education, Ministry of Human · Resources Development, Government of India after the judgment in Unni Krishnan made a proposal to amend th. e Constitution to make the right to education a fundamental right for children up to the age of 14 years and also a fundamental duty of citizens of India so as to achieve the goal of universal elementary education.

The Department also drafted a Bill [Constitution (Eighty-third Amendment) Bill, 1997) so as to insert a new Article 21A in the Constitution which read as follows: "21A. Right to education. 21A(1) The State shall provide free and compulsory education to all citizens of the age of six to fourteen years. Clause(2) The Right to Free and Compulsory Education referred to in clause (1) shall be enforced in such manner as the State may, by law, determine. Clause (3) The State shall not make any law, for free and compulsory education under Clause(2), in relation to the educational institutions not maintained by the State or not receiving aid out of State funds. " 7. The draft Bill was presented before the Chairman, Rajya Sabha on 28. 07. 1997, who referred the Bill to a Committee for examination and report. The Committee called for suggestions/ views from individuals, organisations, institutions etc. and ultimately submitted its report on 4. 11. 1997.

The Committee in its Report referred to the written note received from the 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 ;the age of 14 years. This right flows from Article 21 relating to personal liberty and its content, parameters have to be determined in the light of Article 41 which provides for right to work, to education and to public assistance in certain cases and Article 45 which provides for free and compulsory education to children up to the age of 14 years. The apex Court has observed that the obligations created by these Articles of the Constitution can be discharged by the State either by establishing institutions of its own or by aiding recognising and granting affiliation to educational institutions.

On clause (3) of the proposed Article 21, the report stated as follows: "11. Clause (3) of the proposed Article 21 provides that the State shall not make any law for free and compulsory education under clause (2), in relation to the educational institutions not maintained by the State or not receiving aid out of State funds. However, strong apprehensions were voiced about clause (3) of the proposed new Article 21A. Many of the people in the written memoranda and also educational experts in the oral evidence have expressed displeasure over keeping the private educational institutions outside the purview. of the fundamental right to be given to the children. The Secretary stated that the Supreme Court in the Unni Krishnan judgment said that wherever the State is not providing any aid to any institution, such an institution need not provide free education.

The Department took into account the Supreme Court judgment in the Unni Krishnan case which laid down that no private institution, can be compelled to provide free services. Therefore, they provided in the Constitutional amendment that this concept of free education need not be extended to schools or institutions which are not aided by the Government, the Secretary added. He, however, stated that there was no intention, to exclude them from the overall responsibility to provide education. " 8. The Committee specifically referred to the judgment in Unni Krishnan in paragraph 15. 14 of the Report. Reference was also made to the dissenting note of one of the members. Relevant portion of the report is extracted below: "15. 14. Clause (3) of the proposed Article 21(A} prohibits the State from making any law for free and compulsory education in relation to educational institutions not maintained by the State or not receiving aid out of State funds.

This issue was discussed by the Members of the Committee at length. The members were in agreement that even though the so called private institutions do not receive any financial aid, the children studying in those institutions should not be deprived of their fundamental right. As regards the interpretation as to whether the private institutions should provide free education or not, the Committee is aware of the Supreme Court judgment given in the Unni Krishnan case. This judgment provides the rule for application and interpretation. In view of the judgment, it is not necessary to make a clause in the Constitution. It would be appropriate to leave the interpretation to the courts instead of making a specific provision fn black and white. Some members, however, felt that the private institutions which do not get any financial aid, provide quality education. Therefore, it would be inappropriate to bring such institutions under the purview of free education.

Those members, accordingly, felt that clause (3) should not be deleted. 15. 15. The Committee, however, after a thorough discussion feels that this provision need not be there. The Committee recommends that clause (3) of the proposed Article 21(A) may be deleted. Smt. Hedwig Michael Rego, M. P. a Member of the Committee gave a Minute of Dissent. It is appended to the report. 15. 16. The Committee recommends that the Bill be passed subject to the recommendations made in the preceding paragraphs. . I MINUTES OF DISSENT- I vehemently oppose the State wanting to introduce free and compulsory education in private, unaided schools. Clause 21A (3) must be inserted as I do not wish the State to make laws regarding free and compulsory education in relation to educational institutions not maintained by the State or not receiving aid out of State funds.

A Committee of State Education Ministers have already considered the issue in view of the Unni Krishnan case, and found it not feasible to bring unaided private educational institutions within the purview of the Bill. Hence, I state once again that the proposed clause "21A(3") must be inserted in the Bill. Yours sincerely, Sd/' (SMT. HEDWIG MICHAEL REGO)" (emphasis supplied) ' 9. Report referred to above was adopted by the Parliamentary Standing Committee on Human Resource Development and submitted the same to the Rajya Sabha on 24. 11. 1997 and also laid on the Table of the Lok Sabha on 24. 11. 1997. The Lok Sabha was however dissolved soon thereafter and elections were declared and that Bill was not further pursued. 10. The Chairman of the Law Commission who authored Unni Krishnan judgment took up the issue suo moto.

Following the ratio in Unni Krishnan, the Law Commission submitted its 165th Report to the Ministry of Law, Justice and Company Affairs, Union of India vide letter dated 19. 11. 1998. Law Commission in that letter stated as follows: "Law Commission had taken up the aforesaid subject suo moto having regard to the Directive Principle of the Constitution of India as well as the decision of the Supreme Court of India. " 11. Referring to the Constitution (Eighty-third Amendment) Bill, 1997, Law Commission in its report in paragraph 6. 1. 4 stated as under: "6. 1. 4 (page 165. 35): The Department of Education may perhaps be right in saying that as of today the private educational institutions which are not in receipt of any grant or aid from the State, cannot be placed under an obligation to impart free education to all the students admitted into their institutions.

However, applying the ratio of Unnikrishnan case, it is perfectly legitimate for the State or the affiliating Board, as the case may be, to require the institution to admit and impart free education to fifty per cent of the students as a condition for affiliation or for permitting their students to appear for the Government/Board examination. To start with, the percentage can be prescribed as twenty. Accordingly, twenty per cent students could be selected by the concerned institution in consultation with the local authorities and the parent-teacher association. This proposal would enable the unaided institutions to join the national endeavour to provide education to the children of India and to that extent will also help reduce the financial burden upon the State. " (emphasis supplied) 12.

The Law Commission which had initiated the 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 hereinabove. It would neither be advisable nor desirable that the unaided educational institutions are kept outside the proposed Article altogether while the sole primary obligation to provide education is upon the State, the educational institutions, whether aided or unaided supplement this effort. " Para 6. 6. 2 of the report reads as under: "6. 6. 2. The unaided institutions should be made aware that recognition, affiliation or permission to send their children to appear for the Government/Board examination also casts a corresponding social obligation upon them towards the society.

The recognition/affiliation/permission aforesaid is meant to enable them to supplement the effort of the State and not to enable them to make money. Since they exist and function effectively because of such recognition/affiliation/permission granted by public authorities, they must and are bound to serve the public interest. For this reason, the unaided educational institutions must be made to impart free education to 50% of the students admitted to their institutions. This principle has already been applied to medical, engineering and other colleges imparting professional education and there is no reason why the schools imparting primary/elementary education should not be placed under the same obligation. Clause (3) of proposed Article 21A may accordingly be recast to give effect to the above concept and obligation. " RAJASTHAN v. U. 0. 1. [K. S. RADHAKRISHNAN, J. ] Reference may also be made to the following paragraphs of the Report: "6. 8.

The aforesaid bill was referred by the Chairman, Rajya Sabha to the Department-Related Parliamentary Standing Committee on Human Resources Development. A press 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 November, 1997 and laid on the table of the Lok Sabha on the same day. Unfortunately, the Lok Sabha was dissolved soon thereafter and elections were called. 6. 8. 1. The Budget Session after the new Lok Sabha was constituted is over. There is, however, no indication whether the Government is inclined to pursue the pending bill. 6. 9. The question is debatable whether it is at all necessary to amend the Constitution when there is an explicit recognition of the right to education till the age of fourteen years by the Supreme Court in Unni Krishnan's case.

As the said judgment can be overruled by a larger Bench in another case, thus making this right to education vulnerable, it would appear advisable to give this right constitutional sanctity. " 13. Law Commission was giving effect to the ratio of Unni Krishnan and made suggestions to bring in Article 21A mainly on the basis of the scheme framed in Unni Krishnan providing "free seats" in private educational institutions. 14. The Law Commission report, report of the Parliamentary Standing Committee, judgment in Unni Krishnan etc. were the basis on which the Constitution (Ninety-third Amendment) Bill, 2001 was prepared and presented. Statement of objects and reasons of the Bill given below would indicate that fact: "2.

With a view to making right to education free and compulsory education a fundamental right, the Constitution (Eighty-third Amendment) Bill, 1997 was introduced in the Parliament to insert a new article, namely, Article 21A conferring on all children in the age group of 6 to14 years the right to free and compulsory education. The said Bill was scrutinized by the Parliamentary Standing Committee on Human Resource Development and the subject was also dealt with in its 165th Report by the Law Commission of India. 3. After taking into consideration the report of the Law Commission of India and the recommendations of the Standing Committee of .

Parliament, the proposed amendments in Part 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 legislation would be introduced in parliament after the Constitution (Ninety-third Amendment) Bill, 2001 is enacted; (b) to provide in article 45 of the Constitution that the State shall endeavour to provide early childhood care and education to children below the age of six years; and (c) to amend article 51A of the Constitution with a view to providing that it shall be the obligation of the parents to provide opportunities for education to their children. 4. The Bill seeks to achieve the above objects. " 15. The above Bill was passed and received the assent of the President on 12. 12. 2002 and was published in the Gazette of India on 13. 12.

2002 and the following provisions were inserted in the Constitution; by the Constitution (Eighty- · sixth Amendment) Act, 2002. Part Ill - Fundamental Rights "21A. Right to Education. - The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. Part IV - Directive Principles of State Policy 45. Provision for early childhood care and education to children below the age of six years. - The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years. Part IVA· Fundamental Duties 51A. Fundamental duties - It shall be the duty of every citizen of India - xxxxxxxxx (k) who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years. " 16.

Reference was earlier made to the Parliamentary Standing Committee Report, 165th Law Commission Report, 1998 and the opinion expressed by the Department of Education so as to understand the background of the introduction of Article 21A which is also necessary to properly understand the scope of the Act. In Herron v. Rathmines and Rathgar Improvement Commissioners (1892] AC 498 at p. 502, the Court held that the subject-matter with which the ·. Legislature was dealing, and the facts existing at the time with respect to which the Legislature was legislating are legitimate topics to consider in ascertaining what was the object and purpose of the Legislature in passing the Act. In Mithilesh Kumari and Another v. Prem Behari Khare ((1989) 2 SCC 95], this Court observed that "where a particular enactment or amendment is the resulf of recommendation of the Law Commission of India, it may be permissible to refer to the relevant report. " (See also Dr. Baliram Waman Hiray v. Justice 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: 17. Unni Krishnan had created mayhem and raised thorny issues on which the Law Commission had built up its edifice, suo moto. The Law Commission had acknowledged the fact that but for the ratio in Unni Kirshnan the unaided private educational institutions would have no obligation to impart free and compulsory education to the children admitted in their institutions. Law Commission was also of the view that the ratio in Unni Krishnan had legitimized the State or the affiliating Board to require unaided educational institutions to provide free education, as a condition for affiliation or for permitting the students to appear for the 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 institutions and that the rights of minority communities guaranteed under Article 29 and Article 30 were eroded. Unni Krishnan scheme which insisted that private unaided educational institutions should provide for "free seats" as a condition for recognition or affiliation was also questioned contending that the same would amount to nationalisation of seats.. PAI FOUNDATION 19. T. M. A. Pai Foundation and others v. State of / Karnataka and others [(2002) 8 sec 481] examined the correctness of the ratio laid down in Unni Krishnan and also the validity of the scheme. The correctness of the rigid percentage of reservation laid down in St. Stephen's College v.

University of Delhi [(1992) 1 sec 558] in the case of minority aided educational institutions and the meaning and contents of Articles 30 and 29(2) were also examined. 20. Pai Foundation acknowledged the right of all citizens to practice any profession, trade or business under Article 19(1)(g) and Article 26 and held those rights would be subject to the provisions that were placed under Article 19(6) and 26(a) and the rights of minority to establish and administer 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 profiteering and reasonable surplus to meet the cost of expansion and augmentation of facilities would not mean profiteering.

Further, it was also ordered that the expression "education" in all the Articles of the Constitution would mean and include education at all levels, from primary education level up to post graduate level and the expression "educational institutions" would mean institutions that impart education as understood in the Constitution. 22. Pai Foundation has also recognised that the expression "occupation" in Article 19(1)(g) is an activity of a person undertaken as a means of livelihood or a mission in life and hence charitable in nature and that establishing and running an educational institution is an occupation, and in that process a reasonable revenue surplus can be generated for the purpose of development of education and expansion of the institutions.

The right to establish and administer educational institutions, according to Pai Foundation, comprises right to admit students, set up a reasonable fee structure, constitute a governing body, appoint staff, teaching and non-teaching and to take disciplinary action. So far as private unaided I 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 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 measure