TMI Blog2012 (4) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... n) of the Act, except unaided minority and non-minority schools not receiving any kind of aid or grants to meet their expenses from the appropriate governments or local authorities. 3. Section 12(1)(c) is read down so far as unaided nonminority and minority educational institutions are concerned, holding that it can be given effect to only on the principles of voluntariness, autonomy and consensus and not on compulsion or threat of nonrecognition or non-affiliation. 4. No distinction or difference can be drawn between unaided minority and non-minority schools with regard to appropriation of quota by the State or its reservation policy under Section 12(1)(c) of the Act. Such an appropriation of seats can also not be held to be a regulatory measure in the interest of the minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution. 5. The Appropriate Government and local authority have to establish neighbourhood schools as provided in Section 6 read with Sections 8 and 9, within the time limit prescribed in the Statute. 6. Duty imposed on parents or guardians under Section 10 is directory in nature and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... standards in the schools. The Preamble states that the 2009 Act stands enacted inter alia to provide for free and compulsory education to all children of the age of 6 to 14 years. The said Act has been enacted to give effect to Article 21A of the Constitution. Scope of the 2009 Act 7. Section 3(1) of the 2009 Act provides that every child of the age of 6 to 14 years shall have a right to free and compulsory education in a neighbourhood school till completion of elementary education. Section 3(2) inter alia provides that no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing the elementary education. An educational institution is charitable. Advancement of education is a recognised head of charity. Section 3(2) has been enacted with the object of removing financial barrier which prevents a child from accessing education. The other purpose of enacting Section 3(2) is to prevent educational institutions charging capitation fees resulting in creation of a financial barrier which prevents a child from accessing or exercising its right to education which is now provided for vide Article 21A. Thus, sub-Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll, while admitting a child, collect any capitation fee and subject the child or his or her parents to any screening procedure. Section 15 mandates that a child shall be admitted in a school at the commencement of the academic year or within the prescribed extended period. Sections 16 and 17 provide for prohibition of holding back and expulsion and of physical punishment or mental harassment to a child. Section 18 postulates that after the commencement of the 2009 Act no school, other than the excepted category, can be established or can function without obtaining a certificate of recognition from the appropriate authority. The appropriate authority shall be obliged to issue the certificate of recognition within the prescribed period specifying the conditions there for, if the school fulfills the norms and standards specified under Sections 19 and 25 read with the Schedule to the 2009 Act. In the event of contravention of the conditions of recognition, the prescribed authority can withdraw recognition after giving an opportunity of being heard to such school. The order of withdrawal of recognition should provide a direction to transfer the children studying in the de-recognised sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions 25, 26 and the Schedule of that Act. [See Section 19(2)]. The State is also expected to first weed out those schools which are non-performing, or under-performing or non-compliance schools and upon closure of such schools, the students and the teaching and non-teaching staff thereof should be transferred to the neighbourhood school. The provision is meant not only to strengthen the latter school by adequate number of students but to consolidate and to impart quality education due to the addition of teaching staff. Needless to observe, that if there is inadequate response to the government funded school, it is but appropriate that either the divisions thereof or the school itself be closed and the students and staff of such schools be transferred to a neighbourhood school by resorting to Section 18(3) of the 2009 Act. Only after taking such decisions could the School Development Plan represent the correct position regarding the need of government aided schools in every locality across the State. Besides, it will ensure proper and meaningful utilization of public funds. In absence of such exercise, the end result would be that on account of existing nonperforming or under-perf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, when the courts are required to decide whether the impugned law infringes a fundamental right, the courts need to ask the question whether the impugned law infringes a fundamental right within the limits justified by the directive principles or whether it goes beyond them. For example, the scope of the right of equality of opportunity in matters relating to employment (Article 16) to any office in the State appears more fully defined when read with the obligation of the State to promote with special care the economic and other interests of the weaker sections (Article 46). Similarly, our understanding of the right to practice any profession or occupation [Article 19(1)(g)] is clarified when we read along with that right the obligation of the State to see that the health of the workers and the tender age of the children are not abused (Article 39). Thus, we need to interpret the fundamental rights in the light of the directive principles. The above principles are very relevant in this case because the very content of Article 21A comes from reading of Articles 41, 45 and 46 and, more particularly, from Article 45 (as it then stood before the Constitution (Eighty sixth Amendment) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, if an educational institution goes beyond charity into commercialization, it would not be entitled to protection of Article 19(1)(g). This is where the paradox comes in. If education is an activity which is charitable, could the unaided non-minority educational institution contend that the intake of 25% children belonging to weaker section and disadvantaged group only in class I as provided for in Section 12(1)(c) would constitute violation of Article 19(1)(g)? Would such a provision not be saved by the principle of reasonable restriction imposed in the interest of the general public in Article 19(6) of the Constitution? 10. Coming to the principle of reasonableness, it may be stated, that though subject-wise, Article 21A deals with access to education as against right to establish and administer educational institution in Article 19(1)(g), it is now not open to anyone to contend that the law relating to right to access education within Article 21A does not have to meet the requirement of Article 14 or Article 19 for its reasonableness. [See Khudiram Das v. State of West Bengal reported in (1975) 2 SCR 832] After the judgment of this Court in Maneka Gandhi v. Union of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll those barriers including financial and psychological barriers which a child belonging to the weaker section and disadvantaged group has to face while seeking admission. It is true that, as held in T.M.A. Pai Foundation as well as P.A. Inamdar, the right to establish and administer an educational institution is a fundamental right, as long as the activity remains charitable under Article 19(1)(g), however, in the said two decisions the correlation between Articles 21 and 21A, on the one hand, and Article 19(1)(g), on the other, was not under consideration. Further, the content of Article 21A flows from Article 45 (as it then stood). The 2009 Act has been enacted to give effect to Article 21A. For the above reasons, since the Article 19(1)(g) right is not an absolute right as Article 30(1), the 2009 Act cannot be termed as unreasonable. To put an obligation on the unaided non-minority school to admit 25% children in class I under Section 12(1)(c) cannot be termed as an unreasonable restriction. Such a law cannot be said to transgress any constitutional limitation. The object of the 2009 Act is to remove the barriers faced by a child who seeks admission to class I and not to restri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cified 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aided educational institution of their choice and, at the same time, securing the interests of the children in the locality, in particular, those who may not be able to pursue education due to inability to pay fees or charges of the private unaided schools. We also do not see any merit in the contention that Section 12(1)(c) violates Article 14. As stated, Section 12(1)(c) inter alia provides for admission to class I, to the extent of 25% of the strength of the class, of the children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education to them till its completion. The emphasis is on free and compulsory education . Earmarking of seats for children belonging to a specified category who face financial barrier in the matter of accessing education satisfies the test of classification in Article 14. Further, Section 12(1)(c) provides for level playing field in the matter of right to education to children who are prevented from accessing education because they do not have the means or their parents do not have the means to pay for their fees. As stated above, education is an activity in which we have several partici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad with Article 19(6). That was not the issue in T.M.A. Pai Foundation nor in P.A. Inamdar. In this case, we are concerned with the validity of Section 12(1)(c) of the 2009 Act. Hence, we are concerned with the validity of the law enacted pursuant to Article 21A placing restrictions on the right to establish and administer educational institutions (including schools) and not the validity of the Scheme evolved in Unni Krishnan, J.P. v. State of Andhra Pradesh [(1993) 1 SCC 645]. The above judgments in T.M.A. Pai Foundation and P.A. Inamdar were not concerned with interpretation of Article 21A and the 2009 Act. It is true that the above two judgments have held that all citizens have a right to establish and administer educational institutions under Article 19(1)(g), however, the question as to whether the provisions of the 2009 Act constituted a restriction on that right and if so whether that restriction was a reasonable restriction under Article 19(6) was not in issue. Moreover, the controversy in T.M.A. Pai Foundation arose in the light of the scheme framed in Unni Krishnan s case and the judgment in P.A. Inamdar was almost a sequel to the directions in Islamic Academy of Educatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 al l levels or types o f educationa l institutions cannot be identica l; 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 schoo l level , it is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issues arising for decision before us are only three: (i) the fixation of quota of admissions/students in respect of unaided professional institutions; (ii) the holding of examinations for admissions to such colleges, that is, who will hold the entrance tests; and (iii) the fee structure. 104. Article 30(1) speaks of educational institutions generally and so does Article 29(2). These articles do not draw any distinction between an educational institution dispensing theological education or professional or non-professional education. However, the terrain of thought as has developed through successive judicial pronouncements culminating in Pai Foundation is that looking at the concept of education, in the backdrop of the constitutional provisions, professiona l educationa l institutions constitute a class by themselves as distinguished from educationa l institutions imparting non-professiona l 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 specia l significance in the context o f professiona l studies . Though merit and excellence are not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India. In those institutions, there are day scholars and boarders. The 2009 Act could only apply to day scholars. It cannot be extended to boarders. To put the matter beyond doubt, we recommend that appropriate guidelines be issued under Section 35 of the 2009 Act clarifying the above position. Validity and applicability of the 2009 Act qua unaided minority schools 14. The inspiring preamble to our Constitution shows that one of the cherished objects of our Constitution is to assure to all its citizens the liberty of thought, expression, belief, faith and worship. To implement and fortify these purposes, Part III has provided certain fundamental rights including Article 26 of the Constitution which guarantees the right of every religious denomination or a section thereof, to establish and maintain institutions for religious and charitable purposes; to manage its affairs in matters of religion; to acquire property and to administer it in accordance with law. Articles 29 and 30 confer certain educational and cultural rights as fundamental rights. 15. Article 29(1) confers on any section of the citizens a right to conserve its own language, script or culture by and throu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 nonminority 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said 2009 Act shall not apply to such schools. 21. This judgment will operate from today. In other words, this will apply from the academic year 2012-13. However, admissions given by unaided minority schools prior to the pronouncement of this judgment shall not be reopened. 22. Subject to what is stated above, the writ petitions are disposed of with no order as to costs. (S. H. Kapadia) CJI (Swatanter Kumar) J. New Delhi; April 12, 2012 REPORTABLE JUDGMENT K . S . Radhakrishnan , J . We are, in these cases, concerned with the constitutional validity of the Right of Children to Free and Compulsory Education Act 2009 (35 of 2009) [in short, the 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 yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ev Dhavan, Shri T.R. Andhyarujina, Shri Ashok H. Desai, Shri Harish S. Salve, Shri N. Chandrasekharan, Shri K. Parasaran, Shri Chander Uday Singh, Shri Shekhar Naphade, Shri Vikas Singh, Shri Arvind P. Dattar and large number of other counsel also presented their arguments and rendered valuable assistance to the Court. Shri Goolam E. Vahanvati, learned Attorney General and Mrs. Indira Jaising, learned Additional Solicitor General appeared for the Union of India. PART I 5. In Mohini Jain v. State of Karnataka and others [(1992) 3 SCC 666], this Court held that the right to education is a fundamental right guaranteed under Article 21 of the Constitution and that dignity of individuals cannot be assured unless accompanied by right to education and that charging of capitation fee for admission to educational institutions would amount to denial of citizens right to education and is violative of Article 14 of the Constitution. The ratio laid down in Mohini Jain was questioned in Unni Krishnan, J.P. and Others v. State of A.P. and Others [(1993) 1 SCC 645] contending that if the judgment in Mohini Jain was given effect to, many of the private educational institutions would have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of State funds. 7. The draft Bill was presented before the Chairman, Rajya Sabha on 28.07.1997, who referred the Bill to a Committee for examination and report. The Committee called for suggestions/views from individuals, organisations, institutions etc. and ultimately submitted its report on 4.11.1997. The Committee in its Report referred to the written note received from the Department of Education and stated as follows: Department in its written note stated that the Supreme Court in its judgment in Unni Krishnan J.P. v. Andhra Pradesh, has held that children of this country have a Fundamental Right to free education until they complete the age of 14 years. This right flows from Article 21 relating to personal liberty and its content, parameters have to be determined in the light of Article 41 which provides for right to work, to education and to public assistance in certain cases and Article 45 which provides for free and compulsory education to children up to the age of 14 years. The apex Court has observed that the obligations created by these Articles of the Constitution can be discharged by the State either by establishing institutions of its own or by aiding rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 o f making a specific provision in black and white . Some members, however, felt that the private institutions which do not get any financial aid, provide quality education. Therefore, it would be inappropriate to bring such institutions under the purview of free education. Those members, accordingly, felt that clause (3) should not be deleted. 15.15. The Committee, however, after a thorough discussion feels that this provision need not be there. The Committee recommends that clause (3) of the proposed Article 21(A) may be deleted. Smt. Hedwig Michael Rego, M.P. a Member of the Committee gave a Minute of Dissent. It is appended to the report. 15.16. The Committee recommends that the Bill be passed subject to the recommendations made in the preceding paragraphs. MINUTES OF DISSENT I vehemently oppose the State wanting to introduce free and compulsory education in private, unaided schools. Clause 21A (3) must be inserted as I do not wish the State to make law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the local authorities and the parent-teacher association. This proposal would enable the unaided institutions to join the national endeavour to provide education to the children of India and to that extent will also help reduce the financial burden upon the State. (emphasis supplied) 12. The Law Commission which had initiated the proceedings suo moto in the light of Unni Krishnan suggested deletion of clause (3) from Article 21A stating as follows: So far as clause (3) is concerned, the Law Commission states that it should be totally recast on the light of the basic premise of the decision in Unni Kirshnan which has been referred to hereinabove. It would neither be advisable nor desirable that the unaided educational institutions are kept outside the proposed Article altogether while the sole primary obligation to provide education is upon the State, the educational institutions, whether aided or unaided supplement this effort. Para 6.6.2 of the report reads as under: 6.6.2. The unaided institutions should be made aware that recognition, affiliation or permission to send their children to appear for the Government/Board examination also casts a corresponding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. The Law Commission report, report of the Parliamentary Standing Committee, judgment in Unni Krishnan etc. were the basis on which the Constitution (Ninety-third Amendment) Bill, 2001 was prepared and presented. Statement of objects and reasons of the Bill given below would indicate that fact: 2. With a view to making right to education free and compulsory education a fundamental right, the Constitution (Eighty-third Amendment ) Bill, 1997 was introduced in the Parliament to insert a new article, namely, Article 21A conferring on all children in the age group of 6 to14 years the right to free and compulsory education. The said Bill was scrutinized by the Parliamentary Standing Committee on Human Resource Development and the subject was also dealt with in its 165th Report by the Law Commission of India. 3. After taking into consideration the report of the Law Commission of India and the recommendations of the Standing Committee of Parliament, the proposed amendments in Part III, Part IV and Part IVA of the Constitution are being made which are as follows: (a) to provide for free and compulsory education to children in the age group of 6 to 14 years and for this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Prem Behari Khare [(1989) 2 SCC 95], this Court observed that where a particular enactment or amendment is the result of recommendation of the Law Commission of India, it may be permissible to refer to the relevant report. (See also Dr. Baliram Waman Hiray v. Justice B. Lentin and Others [(1988) 4 SCC 419], Santa Singh v. State of Punjab [(1976) 4 SCC 190], Ravinder Kumar Sharma v. State of Assam [(1999) 7 SCC 435]. UNNI KRISHNAN : 17. Unni Krishnan had created mayhem and raised thorny issues on which the Law Commission had built up its edifice, suo moto. The Law Commission had acknowledged the fact that but for the ratio in Unni Kirshnan the unaided private educational institutions would have no obligation to impart free and compulsory education to the children admitted in their institutions. Law Commission was also of the view that the ratio in Unni Krishnan had legitimized the State or the affiliating Board to require unaided educational institutions to provide free education, as a condition for affiliation or for permitting the students to appear for the Government/Board examination. 18. Unni Krishnan was questioned contending that it had imposed unreasonable r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comprises right to admit students, set up a reasonable fee structure, constitute a governing body, appoint staff, teaching and non-teaching and to take disciplinary action. So far as private unaided educational institutions are concerned, the Court held that maximum autonomy has to be with the management with regard to administration, including the right of appointment, disciplinary powers, admission of students and the fee to be charged etc. and that the authority granting recognition or affiliation can certainly lay down conditions for the grant of recognition or affiliation but those conditions must pertain broadly to academic and educational matters and welfare of students and teachers. The Court held that the right to establish an educational institution can be regulated but such regulatory measures must be in general to ensure proper academic standards, atmosphere and infrastructure and prevention of maladministration. The necessity of starting more quality private unaided educational institutions in the interest of general public was also emphasised by the Court by ensuring autonomy and nonregulation in the school administration, admission of students and fee to be charged. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Article 51A(k) were inserted in the Constitution on 12.12.2002, but the basis for the introduction of Article 21A and the deletion of original clause (3) from Article 21A, was due to the judgment of Unnikrishnan. Parliament, it may be noted, was presumed to be aware of the judgment in Pai Foundation, and hence, no obligation was cast on unaided private educational institutions but only on the State, while inserting Article 21A. 26. The judgment in Pai Foundation, after the introduction of the above mentioned articles, was interpreted by various Courts, State Governments, educational institutions in different perspectives leading to the enactment of various statutes and regulations as well, contrary to each other. A Bench of five Judges was, therefore, constituted to clarify certain doubts generated out of the judgment in Pai Foundation and its application. Rights of unaided minority and non-minority institutions and restrictions sought to be imposed by the State upon them were the main issues before the Court and not with regard to the rights and obligations of private aided institutions run by minorities and non minorities. The five Judges Bench rendered its judgment on 14.8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions necessary for practicing any profession or carrying on any occupation, trade or business; (ii) the carrying on by the State, or by a corporation owned or controlled by the State of any trade, business, industry or service whether to the exclusion, complete or partial of citizens or otherwise. 29. Referring to the judgments in Kerala Education Bill , In Re. 1959 SCR 995 and St. Stephen, the Court took the view that once an educational institution is granted aid or aspires for recognition, the State may grant aid or recognition accompanied by certain restrictions or conditions which must be followed as essential to the grant of such aid or recognition. Inamdar , as I have already indicated, was mainly concerned with the question whether the State can appropriate the quota o f unaided educationa l institutions both minority and non-minority . Explaining Pai Foundation, the Court in Inamdar held as follows: 119. A minority educational institution may choose not to take any aid from the State and may also not seek any recognition or affiliation . It may be imparting such instructions and may have students learning such knowledge that do not stand in need of any recognition. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al institution. Subject to a reconciliation of the two objectives, any regulation accompanying affiliation or recognition must satisfy the triple tests: (i) the test of reasonableness and rationality, (ii) the test that the regulation would be conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it, and (iii) that there is no inroad into the protection conferred by Article 30(1) of the Constitution, that is, by framing the regulation the essential character of the institution being a minority educational institution, is not taken away. (Para 122, Pai Foundation) (iii) Minority educational institutions receiving State aid 123. Conditions which can normally be permitted to be imposed on the educational institutions receiving the grant must be related to the proper utilisation of the grant and fulfilment of the objectives of the grant without diluting the minority status of the educational institution, as held in Pai Foundation (see para 143 thereof). As aided institutions are not before us and we are not called upon to deal with their cases, we leave the discussion at that only. 124. So far ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutions to maintain merit as the criterion of admission by voluntarily agreeing for seat sharing with the State or adopting selection based on common entrance test of the State. Further, it was also pointed that unaided educational institutions can frame their own policy to give free-ships and scholarships to the needy and poor students or adopt a policy in line with the reservation policy of the state to cater to the educational needs of weaker and poorer sections of the society not out of compulsion, but on their own volition. Inamdar reiterated that no where in Pai Foundation, either in the majority or in the minority opinion, have they found any justification for imposing seat sharing quota by the State on unaided private professional educational institutions and reservation policy of the State or State quota seats or management seats. Further, it was pointed that the fixation of percentage of quota is to be read and understood as possible consensual arrangements which can be reached between unaided private professional institutions and the State. State regulations, it was pointed out, should be minimal and only with a view to maintain fairness and transparency in admission pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Inamdar (at page 594) and took the view that, in the context of Article 30(1), no right can be absolute and no community can claim its interest above national interest. The expression national interest was used in the context of respecting laws of the land , namely, while imposing restrictions with regard to laws relating to taxation, sanitation, social welfare, economic legislation, public order and morality and not to make an inroad into the fundamental rights guaranteed under Article 19(1)(g) or Article 30(1) of the Constitution. 32. Comparing the judgments in Inamdar and Pai Foundation, what emerges is that so far as unaided educational institutions are concerned, whether they are established and administered by minority or non-minority communities, they have no legal obligation in the matter of seat sharing and upto the level of under-graduate education they enjoy total freedom. State also cannot compel them to give up a share of the available seats to the candidates chosen by the State. Such an appropriation of seats, it was held, cannot be held to be a regulatory measure in the interest of minority within the meaning of Article 30(1) or a reasonable restriction within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the society which is not only the responsibility of the state and institutions supported by the state but also schools which are not dependent on government funds. Learned Attorney General also submitted that the state has got an obligation and a duty to enforce the fundamental rights guaranteed to children of the age of 6 to 14 years for free and compulsory education and is to achieve that objective, the Act was enacted. Learned Attorney General submitted that Article 21A is a socio-economic right which must get priority over rights under Article 19(1)(g) and Article 30(1), because unlike other rights it does not operate merely as a limitation on the powers of the state but it requires affirmative state action to protect and fulfil the rights guaranteed to children of the age of 6 to 14 years for free and compulsory education. Reference was also made to the judgments of this Court in Indian Medical Association v. Union of India and others [(2011) 7 SCC 179] (in short Medical Association case), Ahmedabad St. Xavier s College Society and Another v. State of Gujarat and Another [(1974) 1 SCC 717], Rev. Sidhajbhai Sabhai and Others v. State of Bombay and Another [(1963) 3 SCR 837] a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution permits the State to make special provisions regarding children. Further, it was also contended that Articles 21A and 15(3) provide the State with Constitutional instruments to realize the object of the fundamental right to free and compulsory education even through non-state actors such as private schools. 39. Shri Rajeev Dhavan, learned senior counsel appearing on behalf of some of the petitioners, submitted that Article 21A casts an obligation on the state and state alone to provide free and compulsory education to children upto the age of 6 to 14 years, which would be evident from the plain reading of Article 21A read with Article 45. Learned senior counsel submitted that the words state shall provide are express enough to reveal the intention of the Parliament. Further, it was stated that the constitutional provision never intended to cast responsibility on the private educational institutions along with the State, if that be so like Article 15(5), it would have been specifically provided so in Article 21A. Article 21A or Article 45 does not even remotely indicate any idea of compelling the unaided educational institutions to admit children from the neighbourhoo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l submitted that the very purpose of incorporating those rights in Part-III is to afford them guarantee and protection and not to interfere with those rights except in larger public interest like health, morality, public safety, public order etc. Learned senior counsel extensively referred to various provisions of the Act, and submitted that they would make serious inroad into the rights guaranteed to the minority communities. Learned counsel further submitted that Section 12(1)(b) and 12(1)(c) in fact, completely take away the rights guaranteed to minority communities, though what was permitted by this Court was only sprinkling of outsiders that is members of all the communities. Counsel submitted that the mere fact that some of the institutions established and administered by the minority communities have been given grant or aid, the State cannot take away the rights guaranteed to them under Article 30(1) of the Constitution of India. Learned counsel submitted that Article 21A read with Article 30(1) also confers a right on a child belonging to minority community for free and compulsory education in an educational institution established and administered by the minority communi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... many of those rights still remain as Directive Principles of State Policy. Civil, political and socio-economic rights find their expression in several international conventions like U.N. Convention on Economic, Social and Cultural Rights 1966 (ICESCR), International Covenant on Civil and Political Rights 1966 (ICCPR), Universal Declaration of Human Rights 1948 (UDHR), United Nations Convention on Rights of Child 1989 (UNCRC)etc. Reference to some of the socio-economic rights incorporated in the Directive Principles of the State Policy in this connection is useful. Article 47 provides for duty of the State to improve public health. Principles enshrined in Articles 47 and 48 are not pious declarations but for guidance and governance of the State policy in view of Article 37 and it is the duty of the State to apply them in various fact situations. 46. Supreme Court has always recognized Right to health as an integral part of right to life under Article 21 of the Constitution. In Consumer Education Research Centre and Others v. Union of India and others [(1995) 3 SCC 42], this Court held that the right to life meant a right to a meaningful life, which is not possible without havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty for private purpose without requisite authorization and held that it is erroneous to contend that pavement dwellers have the right to encroach upon the pavements by constructing dwellings thereon. In Municipal Corporation of Delhi v. Gurnam Kaur [(1989) 1 SCC 101], this Court held that Municipal Corporation of Delhi has no legal obligation to provide pavement squatters alternative shops for rehabilitation as the squatters had no legally enforceable right. In Sodan Singh and Others v. New Delhi Municipal Committee and Others [(1989) 4 SCC 155], this Court negated the claim of citizens to occupy a particular place on the pavement to conduct a trade, holding the same cannot be construed as a fundamental right. Socioeconomic compulsions in several cases did not persuade this Court to provide reliefs in the absence of any constitutional or statutory right. A different note was however struck in Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan and Others [(1997) 11 SCC 121] in the context of eviction of encroachers from the city of Ahmedabad. This Court held though Articles 38, 39 and 46 mandate the State, as its economic policy, to provide socio-economic justice, no person ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al path-breaking judgments in relation to socioeconomic rights. Soobramoney v. Minister of Health (KwaZulu-Natal) [1998 (1) SA 765 (CC)] was a case concerned with the right of emergency health services. Court held that the State owes no duty to provide the claimant, a diabetic sufferer, with kidney dialysis on a plea of socioeconomic right. Petitioner was denied dialysis by a local hospital on the basis of a prioritization policy based on limited resources. The Court emphasised that the responsibility of fixing the health care budget and deciding priorities lay with political organization and medical authorities, and that the court would be slow to interfere with such decisions if they were rational and taken in good faith . 50. In Government of the Republic of South Africa and Others v. Grootboom and others [2001 (1) SA 46 (CC)] was a case where the applicants living under appalling conditions in an informal settlement, had moved into private land from which they were forcibly evicted. Camping on a nearby sports field, they applied for an order requiring the government to provide them with basic shelter. The Constitutional Court did not recognize a directly enforceable claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serve as an instrument of principled social transformation enabling affirmative action and horizontal application of rights. To most of the social rights, the State s responsibility is limited to take reasonable legislative and other measures within its available resources to achieve the progressive realisation of those rights [Sections 26(2), and 27(2)]. Few exceptions, however, give rise to directly enforceable claims, namely, right not to be evicted [Section 26(3)]; not to be refused emergency medical treatment [Section 27(3)]; the rights of prisoners to adequate nutrition and medical treatment [Section 35(2)] and rights of Children (defined as those under 18 years) to basic nutrition, shelter, basic health care and social services. 55. Social economic rights have also been recognized by the constitutional courts of various other countries as well. In Brown v. Board of Education [347 U.S. 483], the U.S. Constitutional Court condemned the policy of segregation of blacks in the American educational system. The Court held that the private schools for black and white children are inherently unequal and deprived children of equal rights. 56. In a Venenzuelan case Cruz del Valle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary and intermediary interests in land on the ground of contravention of the provisions of Articles 14, 19 and 31. Several Tenancy and Land Reforms Acts enacted by the State also stood protected under Article 31A from the challenge of violation of Articles 14 and 19. 60. Article 31B also saves legislations coming under it from inconsistency with any of the fundamental rights included in Part III for example Article 14, Article 19(1)(g) etc. Article 31B read with Ninth Schedule protects all laws even if they are violative of fundamental rights. However, in I.R. Coelho (Dead) by LRs v. State of Tamil Nadu and Others [(2007) 2 SCC 1], it was held that laws included in the Ninth Schedule can be challenged, if it violates the basic structure of the Constitution which refer to Articles 14, 19, 21 etc. 61. Article 31C was inserted by the Constitution (Twenty fifth Amendment) Act, 1971 which gave primacy to Article 39(b) and (c) over fundamental rights contained under Article 14 and 19. Article 31C itself was amended by the Constitution (Forty-second Amendment) Act, 1976 and brought in all the provisions in Part-IV, within Article 31C for protecting laws from challenge under article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified medical practitioners from jeopardizing life and health of people. Sub clause (ii) to Article 19(6) imposes no limits upon the power of the State to create a monopoly in its favour. State can also by law nationalize industries in the interest of general public. Clause (6)(ii) of Article 19 serves as an exception to clause (1)(g) of Article 19 which enable the State to enact several legislations in nationalizing trades and industries. Reference may be made to Chapter-4 of the Motor Vehicles Act, 1938, The Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, General Insurance Business (Nationalization) Act, 1972 and so on. Sub-clause 6(ii) of Article 19 exempts the State, on the conditions of reasonableness, by laying down that carrying out any trade, business, industry or services by the State Government would not be questionable on the ground that it is an infringement on the right guaranteed under Article 19(1)(g). 66. I have referred to various provisions under subclauses (i) and (ii) of Article 19(6) to impress upon the fact that it is possible to amend the said Article so that socioeconomic rights could be realized by carving out necessary constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been removed by inserting Article 15(4). 69. The Parliament noticed that the provisions of Article 15(4) and the policy of reservation could not be imposed by the State nor any quota or percentage of admission be carved out to be appropriated by the State in minority or nonminority unaided educational institution, since the law was clearly declared in Pai Foundation and Inamdar cases. It was noticed that the number of seats available in aided or State maintained institutions particularly in respect of professional educational institutions were limited in comparison to those in private unaided institutions. Article 46 states that the State shall promote, with special care, the educational and economic interests of the weaker sections of the people, and, in particular of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice. Access to education was also found to be an important factor and in order to ensure advancement of persons belonging to Scheduled Castes, Scheduled Tribes, socially and economically backward classes, it was proposed to introduce Clause (5) to Article 15 to promote educational advancement of socially and educationally backwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitutions and, as indicated earlier, it was to get over that obstacle that Clause (5) was inserted in Article 15. In Ashok Kumar Thakur, the majority held that Clause (5) to Article 15 though, moderately abridges or alters the equality principle or the principles under Article 19(1)(g), insofar as it dealt with State maintained and aided institutions, it did not violate the basic structure of the Constitution. I have referred to Articles 15(4) and 15(5) and the judgment in Ashok Kumar Thakur to highlight the fact that the State in order to achieve socio-economic rights, can remove obstacles by limiting the fundamental rights through constitutional amendments. 72. Applicability of Article 15(5), with regard to private unaided non-minority professional institutions, came up for consideration in Medical Association case. A two judges Bench of this Court has examined the constitutional validity of Delhi Act 80 of 2007 and the notification dated 14.8.2008 issued by the Government of NCT, Delhi permitting the Army College of Medical Sciences to allocate 100% seats to the wards of army personnel. The Court also examined the question whether Article 15(5) has violated the basic structu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gave a new dimension and meaning to paragraph 124 of Inamdar, which is evident from the following paragraph of that judgment: 81. xxx xxx (i) that there is not much of a difference in terms, between the two kinds of institutions under consideration, based on an overall quantitative assessment o f al l the rights put together , with a few differences that would still have operational significance; or (ii) that in all respects the two classes of educational institutions are more or less the same, with the differences being minor and not leading to any operational significance . (emphasis supplied) Medical Association case concluded that the expression much of a difference could be understood only in the way they have stated in paragraph 81(i) which, with due respect, is virtually re-writing paragraph 124 of Inamdar, a seven Judges Judgment which is impermissible. Final conclusion reached by the learned judges in paragraph 123 for inclusion of Clause (5) to Article 15 reads as follows: 123. Clause (5) of Article 15 is an enabling provision and inserted by the Constitution (Ninety third Amendment) Act, 2005 by us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e backward citizens in Article 16(4) do not comprise of all the weaker sections of the people but only those which are socially, educationally and economically backward, and which are not adequately represented in the services under the State. Further, the expression weaker sections can also take within its compass individuals who constitute weaker sections or weaker parts of the society. 77. In Indra Sawhney v. Union of India and Others [(1992) Supp. 3 SCC 212], this Court held that, as the law stood then, there could be no reservation in promotion. It was held that reservation of appointments or posts under Article 16(4) is confined to initial appointments only. To set right the law and to advance social justice by giving promotions to Scheduled Castes and Scheduled Tribes Clause (4A) was added to Article 16 by the Constitution (Seventyseventh Amendment) Act, 1995. Consequently, the hurdle or obstacle which stood in the way was removed by the Constitutional amendment. 78. The scope of the above provision came up for consideration in Jagdish Lal and Others v. State of Haryana and Others [(1997) 6 SCC 538], where this Court held that the principle of seniority according to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amendment) Act, 2000 and the Constitution (Eighty-fifth Amendment) Act, 2001 were also examined and held valid. This Court held that they do not infringe either the width of the Constitution amending power or alter the identity of the Constitution or its basic structure. This Court held that the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse. 81. I have referred extensively to the constitutional amendments effected to Articles 31A to 31C, Articles 15, 16 and 19 to show that whenever the Parliament wanted to remove obstacles so as to make affirmative action to achieve socio-economic justice constitutionally valid, the same has been done by carrying out necessary amendments in the Constitution, not through legislations, lest they may make an inroad into the fundamental rights guaranteed to the citizens. Rights guaranteed to the unaided non-minority and minority educational institutions under Article 19(1)(g) and Article 30(1) as explained in Pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitutional statute is not a law at all, whatever form or however solemnly it is enacted. When legislation is declared unconstitutional by a Constitutional Court, the legislation in question is not vetoed or annulled but declared never to have been the law. People, acting solemnly in their sovereign capacity bestow the supreme dominion on the Constitution and, declare that it shall not be changed except through constitutionally permissible mode. When courts declare legislative acts inconsistent with constitutiona l provisions, the court is giving effect to the wil l o f the people not due to any judicia l supremacy , a principle which squarely applies to the case on hand. 84. In S.P. Gupta v. President of India and Others [1981 SCC Supp. (1) 87] [para 195], Justice Fazal Ali pointed out as follows: The position so far as our country is concerned is similar to that of America and if any error of interpretation of a constitutional provision is committed by the Supreme Court or any interpretation which is considered to be wrong by the Government can be rectified only by a constitutional amendment which is a very complicated, complex, delicate and difficult procedure requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 89. We may, however, also examine whether the private unaided educational institutions have any obligations/responsibilities in realization of children s rights. Articles 21A, 45, 51A(k), Section 12 of the Act and various International Conventions deal with the obligations and responsibilities of state and non-state actors for realization of children s rights. Social inclusiveness is stated to be the motto of the Act which was enacted to accomplish the State s obligation to provide free and compulsory education to children of the age 6 to 14 years, in that process, compulsorily co-opting, private educational institutions as well. A shift in State s functions, to non-state actors in the field of health care, education, social services etc. has been keenly felt due to liberalization of economy and privatization of state functions. 90. The Universal Declaration of Human Rights, 1948 (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR), UN Convention on the Rights of the Child (UNCRC), 1989 throw considerable light on the duties and responsibilities of State as well as non-st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be made to Article 28(1)(a) of UNCRC which reads as follows: States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: make primary education compulsory and available free to all ; Article 29 is also relevant for our purpose which reads as follow:- 1. States Parties agree that the education of the child shall be directed to: (a) The development of the child's personality, talents and mental and physical abilities to their fullest potential; (b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations; (c) The development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own; (d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns referred to above cast an obligation on non-state actors to respect and protect children s rights and not to impair or destroy the rights guaranteed to children , but no positive obligation to make available those rights . 95. Primary responsibility for children s rights, therefore, lies with the State and the State has to respect, protect and fulfill children s rights and has also got a duty to regulate the private institutions that care for children, to protect children from violence or abuse, to protect children from economic exploitation, hazardous work and to ensure human treatment of children. Non-state actors exercising the state functions like establishing and running private educationa l institutions are also expected to respect and protect the rights o f the child , but they are , not expected to surrender their rights constitutionally guaranteed . 96. Article 21A requires non-state actors to achieve the socio-economic rights of children in the sense that they shall not destroy or impair those rights and also owe a duty of care. The State, however, cannot free itself from obligations under Article 21A by offloading or outsourcing its obligation to private State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons, restrained them from interfering with the autonomy of those institutions and adopted a balancing approach laying down the principle of voluntariness, co-operation, concession, and so on. 100. Pai Foundation and Inamdar have categorically held that any action of the State to regulate or control admissions in the unaided professional educational institutions, so as to compel them to give up a share of the available seats to the candidates chosen by the State, as if it was filling the seats available to be filled up at its discretion in such private institutions, would amount to nationalization of seats. Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions, it was held, are acts constituting serious encroachment on the right and autonomy of private unaided professional educational institutions and such appropriation of seats cannot be held to be a regulatory measure in the interest of minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution, so far as the unaided minority institutions are concerned. PART IV 101 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal obligation under Article 21A of the Constitution. Children have also got a constitutional right to get free and compulsory education, which right can be enforced against the State, since the obligation is on the State. Children who opt to join an unaided private educational institution cannot claim that right as against the unaided private educational institution, since they have no constitutional obligation to provide free and compulsory education under Article 21A of the Constitution. Needless to say that if children are voluntarily admitted in a private unaided educational institution, children can claim their right against the State, so also the institution. Article 51A(k) of the Constitution states that it shall be the duty of every citizen of India, who is a parent or guardian, to provide opportunities for education to his child. Parents have no constitutional obligation under Article 21A of the Constitution to provide free and compulsory education to their children, but only a constitutional duty, then one fails to see how that obligation can be offloaded to unaided private educational institutions against their wish, by law, when they have neither a duty under the Dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assrooms with children from diverse backgrounds, rather than homogenous and exclusive schools and it was felt that heterogeneity in classrooms leads to greater creativity. In order to understand the scope of the above mentioned provisions and the object sought to be achieved, it is necessary to refer to those and other related provisions:- Section 12:- Extent of School s responsibility for free and compulsory education (1) For the purposes of this Act, a school, - (a) specified in sub-clause(i) of clause (n) of section 2 shall provide free and compulsory elementary education to all children admitted therein ; (b) specified in sub-clause(ii) of clause (n) of section 2 shall provide free and compulsory elementary education to such proportion of children admitted therein as its annual recurring aid or grants so received bears to its annual recurring expenses, subject to a minimum of twenty-five per cent.; (c) specified in sub-clauses (iii) and (iv) of clause (n) of section 2 shall admit in class I, to the extent of at least twenty-five per cent of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants to meet its expenses from the appropriate Government or the local authority. (A) Unaided Educationa l Institutions , minority and non-minority: 108. First, I may deal with the challenge against Section 12(1)(c), which casts an obligation on the unaided private educational institutions both non-minority and minority to admit to class 1 at least 25% of the strength of those children falling under Sections 2(d) and 2(e), and also in the preschool, if there is one. State also has undertaken reimbursement of the fees of those children to the extent of perchild expenditure incurred by the State. 109. Right of a citizen to establish and run an educational institution investing his own capital is recognized as a fundamental right under Article 19(1)(g) and the right of the State to impose reasonable restrictions under Article 19(6) is also conceded. Citizens of this country have no constitutional obligation to start an educational institution and the question is after having started private schools, do they owe a constitutional obligation for seat sharing with the State on a fee structure determined by the State. Pai Foundation and Inamdar took the view that the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervation policy under Section 12(1)(c) of the Act. 111. I am of the view, going by the ratio laid down by Pai Foundation and Inamdar, to compel the unaided non minority and minority private educational institutions, to admit 25% of the students on the fee structure determined by the State, is nothing but an invasion as well as appropriation of the rights guaranteed to them under Article 19(1)(g) and Article 30(1) of the Constitution. Legislature cannot under the guise of interest of general public arbitrarily cast burden or responsibility on private citizens running a private school, totally unaided . Section 12(1)(c) was enacted not only to offload or outsource the constitutional obligation of the State to the private unaided educational institutions, but also to burden them with duties which they do not constitutionally owe to children included in Section 2(d) or (e) of the Act or to their parents. 112. Pai Foundation, in paragraph 57 of the judgment has stated that in as much as the occupation of education is, in a sense, regarded as charitable, the Government can provide regulations that will ensure excellence in education, while forbidding the charging of capitation fee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words considerable money by way of capital investment and overhead expenses would go into for establishing and maintaining a good quality unaided educational institution. Section 12(1)(c), in my view, would amount to appropriation of one s labour and makes an inroad into the autonomy of the institution. Unaided educational institutions, over a period of time, might have established their own reputation and goodwill, a quantifiable asset. Nobody can be allowed to rob that without their permission, not even the State. Section 12(1)(c) is not a restriction which falls under Article 19(6) but cast a burden on private unaided educational institutions to admit and teach children at the state dictate, on a fee structure determined by the State which, in my view, would abridge and destroy the freedom guaranteed to them under Article 19(1)(g) of the Constitution. 115. Parliament can enact a social legislation to give effect to the Directive Principles of the State Policy, but so far as the present case is concerned , neither the Directive Principles o f the State Policy nor Article 21A cast any duty or obligation on the unaided private educationa l institutions to provide free and compu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constitutional mandate or the constitutional principle laid down by Courts under the guise of social inclusiveness. Smaller inroad like Section 12(1)(c) may lead to larger inroad, ultimately resulting in total prohibition of the rights guaranteed under Articles 19(1)(g), 29(2) and 30(1) as interpreted by the Pai Foundation and Inamdar. Court, in such situations, owe a duty to lift the veil of the form and appearance to discover the true character and nature of the legislation and if it has the effect of bypassing or ignoring the constitutional principles laid down by the Constitutional Courts and violate fundamental rights, the same has to be nullified. 119. Pai Foundation and Inamdar have not laid down any new constitutional principle, but only declared what the law is. Constitutional principles laid by courts get assimilated in Articles 19(1)(g), 29(2) and 30(1) and can be undone not by legislation, but only by constitutional amendments. The object to be achieved by the legislation may be laudable, but if it is secured by a method which offends fundamental rights and constitutional principles, the law must be struck down as unconstitutional. The constitutional provision like A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... character of the institution. In St. Stephen case which I have already dealt with in the earlier paragraphs of the judgment, the Court held that the State may regulate intake in a minority aided educational institution with due regard to the need of the community of that area where the institution is intending to serve. However, it was held in no case such intake shall exceed 50% of the annual admission. Minority aided educational institutions, it was held, shall make available at least 50% of the annual admission to the members of the communities other than minority community. The Court also held by admitting a member of a non minority into a minority institution, it does not shed its character and cease to be a minority institution and such sprinkling of outsiders would enable the distinct language, script and culture of a minority to be propagated amongst non members of a particular community and would indeed better serve the object of serving the language, religion and culture of that minority. I may also add that Section 12(1)(b) equally safeguards the rights of the members of religious and linguistic minority communities. Section 2(e) deals with the child belonging to wea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners have submitted that schools always give opportunity to the child/parent to produce some authentic proof to ascertain the age of the child. Petitioners, referring to Section 15, submitted that the child has to adhere to the academic procedure laid down by the institutions and there will be no denial of admission to the children subject to the availability of seats. With regard to Section 16, it was contended that the prohibition against holding back any student in any class or expelling any student regardless of how grave the provocation may be, imposes unreasonable and arbitrary restriction which would completely destroy the unique educational system followed by some of the unaided educational institutions. 125. Shri Chander Uday Singh, senior counsel appearing in Writ Petition (Civil) No. 83 of 2011, submitted that they are following the International Baccalaureate system of education; the syllabus, curriculum, method of instructions are totally different from other schools. There are no day scholars, and all the students have to stay in the Boarding and the school fees is also high. Most of the students studying in the school are not from the neighbourhood but fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itation, morality, social welfare etc. 129. I may indicate that so far as the rest of the schools are concerned, including aided minority and non-minority educational institutions, they have necessarily to follow the various provisions in the Act since I have upheld the validity of Section 12(1)(b) of the Act. Certain objections have also been raised by them with regard to some of the provisions of the Act, especially by the aided minority community. Contention was raised that Sections 21 and 22 of the Act, read with Rule 3, cast an obligation on those schools to constitute a School Management Committee consisting of elected representatives of the local authority which amounts to taking away the rights guaranteed to the aided minority schools, under Article 30(1) of the Constitution. Learned Additional Solicitor General has made available a copy of a Bill, proposing amendment to Section 21, adding a provision stating that the School Management Committee constituted under sub-section (1) of Section 21 in respect of a school established and administered by minority whether based on religion or language, shall perform advisory functions only. The apprehension that the committee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind difficult to agree with looking to the object and purpose of the Act. Holding back in a class or expulsion may lead to large number of drop outs from the school, which will defeat the very purpose and object of the Act, which is to strengthen the social fabric of democracy and to create a just and humane society. Provision has been incorporated in the Act to provide for special tuition for the children who are found to be deficient in their studies, the idea is that failing a child is an unjust mortification of the child personality, too young to face the failure in life in his or her early stages of education. Duty is cast on everyone to support the child and the child s failure is often not due the child s fault, but several other factors. No legal infirmity is found in that provision, hence the challenge against Section 16 is rejected. 133. Petitioners have not raised any objection with regard to Section 17, in my view, rightly. Sections 18 and 19 insist that no school shall be established without obtaining certificate of recognition under the Act and that the norms and standards specified in the schedule be fulfilled, if not already fulfilled, within a stipulated time. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t children should complete elementary education. If they are subjected to any Board Examination and to any screening procedure, then the desired object would not be achieved. The object and purpose of Section 30 is to see that a child shall not be held back in any class so that the child would complete his elementary education. The Legislature noticed that there are a large number of children from the disadvantaged groups and weaker sections who drop out of the schools before completing the elementary education, if promotion to higher class is subject to screening. Past experience shows that many of such children have dropped out of the schools and are being exploited physically and mentally. Universal Elementary Education eluded those children due to various reasons and it is in order to curb all those maladies that the Act has provided for free and compulsory education. I, therefore, find no merit in the challenge against those provisions which are enacted to achieve the goal of universal elementary education for strengthening the social fabric of the society. 137. Counsel appearing for some of the aided minority institutions raised a doubt as to whether the Act has got any im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lities of gender, caste, language, culture, religious or other disabilities. The concept of neighbourhood schools has also been incorporated for the first time through a legislation and the right of access of the children to elementary education of satisfactory and equitable quality has also been ensured. The duties and responsibilities of the appropriate government, local authorities, parents, schools and teachers in providing free and compulsory education, a system for protection of the right of children and a decentralized grievance mechanism has been provided by the Legislature. Obligation has also been cast on the State and the local authority to establish neighbourhood schools within a period of three years from the commencement of the Act and the Central Government and the State Governments have concurrent responsibilities for providing funds for carrying out all the provisions of the Act and the duties and responsibilities cast on the local authorities as well. A provision has also been made in the Act for pre-school education for children above the age of three years. The purpose is to prepare them for elementary education and to provide early childhood care and education ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. Private aided educational institutions, though run on aid and grant provided by the State, generally the payment to such schools is not performance oriented. The State Governments provide 100% salary to the teachers on its roll on monthly basis and some State Governments would provide 90%. Generally, the State Governments do not provide capital cost either for construction or for repair and whenever these schools are aided, the school fee is regulated and is generally equal to the fee prevailing in the government schools. The recruitment of teaches by these schools is also subject to the Government regulation like inclusion of a representative of the Government in the selection committee, or the appointment being subject to the approval of the Government. 141. Currently, all taxes in India are subject to the education cess, which is 3% of the total tax payable. With effect from assessment year 2009-10, Secondary and Higher Secondary Education Cess of 1% is applicable on the subtotal of taxable income. The proceeds of the cess are directed to a separate non lapsable fund called Prarambhik Shiksha Kosh (PSK), setup by Government of India, to exclusively cater to the elementary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or detaining any child from standard I to VIII. 145. Mr. Murray N. Rothbard, an eminent educationist and Professor in Economics, in his Book Education: Free and Compulsory [1999, Ludurg von Mises Institute, Auburn, Aliana] cautioned that progressive education may destroy the independent thought in the child and a child has little chance to develop his systematic reasoning powers in the study of definite courses. The Book was written after evaluating the experiences of various countries, which have followed free and compulsory education for children for several years. Prohibition of holding back in a class may, according to the author, result that bright pupils are robbed of incentive or opportunity to study and the dull ones are encouraged to believe that success, in the form of grades, promotion etc., will come to them automatically. The author also questioned that since the State began to control education, its evident tendency has been more and more to act in such a manner so as to promote repression and hindrance of education, rather than the true development of the individual. Its tendency has been for compulsion, for enforced equality at the lowest level, for the waterin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are dealing with the future of the children of this country. PART VI CONCLUSIONS 1. Article 21A casts an obligation on the State to provide free and compulsory education to children of the age of 6 to 14 years and not on unaided non-minority and minority educational institutions. 2. Rights of children to free and compulsory education guaranteed under Article 21A and RTE Act can be enforced against the schools defined under Section 2(n) of the Act, except unaided minority and non-minority schools not receiving any kind of aid or grants to meet their expenses from the appropriate governments or local authorities. 3. Section 12(1)(c) is read down so far as unaided nonminority and minority educational institutions are concerned, holding that it can be given effect to only on the principles of voluntariness, autonomy and consensus and not on compulsion or threat of nonrecognition or non-affiliation. 4. No distinction or difference can be drawn between unaided minority and non-minority schools with regard to appropriation of quota by the State or its reservation policy under Section 12(1)(c) of the Act. Such an appropriation of seats can also not b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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