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TMI Blog2014 (5) TMI 1109X X X X Extracts X X X X X X X X Extracts X X X X ..... gly, Writ Petition filed on behalf of Muslim Minority Schools Managers’ Association is allowed and Writ Petition filed on behalf of non-minority private unaided educational institutions are dismissed. - WRIT PETITION (C) No. 416 OF 2012 WRIT PETITION (C) No. 152 OF 2013, WRIT PETITION (C) No.1081 OF 2013, WRIT PETITION (C) No. 60 OF 2014, WRIT PETITION (C) No. 95 OF 2014, WRIT PETITION (C) No.106 OF 2014, WRIT PETITION (C) No.128 OF 2014 - - - Dated:- 6-5-2014 - WRIT PETITION (C) No. 416 OF 2012 WRIT PETITION (C) No. 152 OF 2013, WRIT PETITION (C) No.1081 OF 2013, WRIT PETITION (C) No. 60 OF 2014, WRIT PETITION (C) No. 95 OF 2014, WRIT PETITION (C) No.106 OF 2014, WRIT PETITION (C) No.128 OF 2014, WRIT PETITION (C) No.144 OF 2014, WRIT PETITION (C) No.145 OF 2014, WRIT PETITION (C) No.160 OF 2014, AND WRIT PETITION (C) No.136 OF 2014 A. K. Patnaik, Sudhansu Jyoti Mukhopadhaya Dipak Misra and Fakkir Mohamed Ibrahim Kalifulla, JJ. J U D G M E N T A. K. PATNAIK, J. This is a reference made by a three-Judge Bench of this Court by order dated 06.09.2010 in Society for Unaided Private Schools of Rajasthan v. Union of India Anr. [(2012) 6 SCC 102] to a Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions were not before the Court. This batch of writ petitions has been filed by private unaided educational institutions and we are called upon to decide whether clause (5) of Article 15 of the Constitution so far as it relates to private unaided educational institutions is valid and does not violate the basic structure of the Constitution. 3. Article 21A of the Constitution reads as follows: 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. . Thus, Article 21A of the Constitution, provides that 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. Parliament has made the law contemplated by Article 21A by enacting the Right of Children to Free and Compulsory Education Act, 2009 (for short the 2009 Act ). The constitutional validity of the 2009 Act was considered by a three-Judge Bench of the Court in Society for Unaided Private Schools of Rajasthan v. Union of India Anr. [(2012) 6 SCC 1]. Two of the three Judges have held the 2009 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution Bench, has held that Articles 14, 19 and 21 of the Constitution constitute the golden triangle which affords to the people of this country an assurance that the promise held forth by the Preamble will be performed by ushering an egalitarian era through the discipline of fundamental rights, that is, without emasculation of the rights to liberty and equality which alone can help preserve the dignity of the individual. He submitted that in the aforesaid case, the Constitution Bench held that Section 4 of the Constitution (Forty-second Amendment) Act is beyond the amending power of Parliament and is void since it damages the basic or essential features of the Constitution and destroys its basic structure by a total exclusion of challenge to any law on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19 of the Constitution. Mr. Rohatgi submitted that Article 19(1)(g) of the Constitution is, therefore, a basic feature of the Constitution and this basic feature is destroyed by providing in clause (5) of Article 15 of the Constitution that nothing in Article 19(1)(g) of the Constitution shall prevent the Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bes insofar as such special provisions relate to their admission to such educational institutions. He referred to paragraph 55 of the majority judgment of this Court in T.M.A. Pai Foundation (supra) in which the difference in the administration of private unaided institutions and government-aided institutions has been noticed. He argued that clause (5) of Article 15 of the Constitution as its very language indicates does not apply to minority educational institutions referred to in clause (1) of Article 30 of the Constitution. He submitted that Article 14 is, thus, violated because aided minority institutions and unaided minority institutions cannot be treated alike. Clause (5) of Article 15 of the Constitution, therefore, is discriminatory and violative of the equality clause in Article 14 of the Constitution, which is a basic feature of the Constitution. 7. Mr. Nariman next submitted that clause (5) of Article 15 of the Constitution is a clear violation of Article 19(1)(g) of the Constitution, inasmuch as it compels private educational institutions to give up a share of the available seats to the candidates chosen by the State and such appropriation of seats would not be a reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Article 15 of the Constitution in so far as it enables the State to make special provisions relating to admission to private educational institutions for socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes will affect also this right under Article 21 read with Article 51A(j) of the Constitution. 9. Mr. Nariman submitted that clause (5) of Article 15 of the Constitution has been brought in by an amendment to achieve the Directive Principles of State Policy in Part IV of the Constitution as well as the goals of social and economic justice set out in the Preamble of the Constitution, but the majority of the Judges speaking through Chandrachud, CJ., have held in Minerva Mills case (supra) that the goals set out in Part IV of the Constitution have to be achieved without the abrogation of the means provided for by Part III of the Constitution. He submitted that in the aforesaid majority judgment in Minerva Mills case (supra) authored by Chandrachud, CJ., it has also been observed that Parts III and IV together constitute the core of our Constitution and anything that destroys the balance between the two parts will ipso facto d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on case (supra) and therefore the constitutional amendment inserting clause (5) in Article 15 of the Constitution is destructive of the basic structure of the Constitution. 12. Mr. Anil B. Divan, learned senior counsel appearing for the petitioners in W.P.(C) No.60 of 2014 and W.P.(C) No.160 of 2014 submitted that in the case of Edward A. Boyd and George H. Boyd v. Unites States (1884) 116 U.S. 616 Bradley J., has observed that it will be the duty of the courts to be watchful for the constitutional rights of the citizens and against any stealthy encroachments into these rights. He submitted that in Dwarkadas Shrinivas v. The Sholapur Spining Weaving Co. Ltd. and Others (AIR 1954 SC 119) Mahajan J., has held that in dealing with constitutional matters it is always well to bear in mind these observations of Bradley J. He submitted that while deciding on validity of clause (5) of Article 15 of the Constitution, we should bear in mind the aforesaid observations of Bradley J. He submitted that Chandrachud, CJ. in Minerva Mills Ltd. Ors. v. Union of India Ors. (supra) has referred to the observations of Brandies J. that the need to protect liberty is the greatest when the govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e permitted to do. Mr. Divan submitted that clause (5) of Article 15 of the Constitution insofar as it excludes minority institutions referred to in Article 30(1) of the Constitution is also violative of secularism which is a basic feature of the Constitution. He referred to the judgment in Dr. M. Ismail Faruqui and Others v. Union of India and Others [(1994) 6 SCC 360] in which this Court has held that the concept of secularism is one facet of right to equality woven as the central golden thread in the fabric depicting the pattern of the scheme in our Constitution. Contentions of learned counsel for the Union of India: 14. Mr. Mohan Parasaran, learned Solicitor General, submitted that this Court has held in Ashoka Kumar Thakur v. Union of India (supra) that clause (5) of Article 15 of the Constitution is only an enabling provision empowering the State to make a special provision, by law, for the advancement of socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes insofar as such special provisions relate to their admission to educational institutions including private educational institutions. He submitted that it will b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en excluded from the purview of clause (5) of Article 15 of the Constitution because the Constitution has given a special status to minority institutions. He submitted that in the case of Ashoka Kumar Thakur v. Union of India (supra), this Court has held that exclusion of minority educational institutions from clause (5) of Article 15 of the Constitution is not violative of Article 14 of the Constitution as the minority educational institutions, by themselves, are a separate class and their rights are protected by other constitutional provisions. He submitted that the argument that clause (5) of Article 15 of the Constitution is violative of equality clause in Article 14 of the Constitution is therefore misconceived. Opinion of the Court on the validity of clause (5) of Article 15 of the Constitution: 16. We have considered the submissions of learned counsel for the parties and we find that the object of clause (5) of Article 15 is to enable the State to give equal opportunity to socially and educationally backward classes of citizens or to the Scheduled Castes and the Scheduled Tribes to study in all educational institutions other than minority educational institutions refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheduled Castes and Scheduled Tribes have remained socially and educationally backward and have also not been able to access educational institutions for the purpose of advancement. To amplify the provisions of Article 15 of the Constitution as originally adopted and to provide equal opportunity in educational institutions, clause (5) has been inserted in Article 15 by the constitutional amendment made by the Parliament by the Ninety-Third Amendment Act, 2005. As the object of clause (5) of Article 15 of the Constitution is to provide equal opportunity to a large number of students belonging to the socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes to study in educational institutions and equality of opportunity is also the object of clauses (1)and (2) of Article 15 of the Constitution, we cannot hold that clause (5) of Article 15 of the Constitution is an exception or a proviso overriding Article 15 of the Constitution, but an enabling provision to make equality of opportunity promised in the Preamble in the Constitution a reality. 17. For this view, we are supported by the majority judgment of this Court in State of Ker ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem freeships or scholarships, if not granted by the Government .. 68. It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forego or discard the principle of merit. It would, therefore, be permissible for the university or the Government, at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while, at the same time, giving the management sufficient discretion in admitting students. This can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the management out of those students who have passed the common entrance test held by itself or by the State/university and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counselling by the State agency. This will incidentally take care of poorer and backward sections of the society. The prescription of percentage for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s if it was filling the seats available to be filled up at its discretion in such private institutions. This would amount to nationalisation of seats which has been specifically disapproved in Pai Foundation. Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions. Such appropriation of seats can also not be held to be a regulatory measure in the interest of the minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution. Merely because the resources of the State in providing professional education are limited, private educational institutions, which intend to provide better professional education, cannot be forced by the State to make admissions available on the basis of reservation policy to less meritorious candidates. Unaided institutions, as they are not deriving any aid from State funds, can have their own admissions if fair, transparent, non-exploitative and based on merit. 21.The reasoning adopted by thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution, including the freedom under Article 19(1)(g), have a voluntary element but this voluntariness in all the freedoms in Article 19(1) of the Constitution can be subjected to reasonable restrictions imposed by the State by law under clauses (2) to (6) of Article 19 of the Constitution. Hence, the voluntary nature of the right under Article 19(1)(g) of the Constitution can be subjected to reasonable restrictions imposed by the State by law under clause (6) of Article 19 of the Constitution. As this Court has held in T.M.A. Pai Foundation (supra) and P.A. Inamdar (supra) the State can under clause (6) of Article 19 make regulatory provisions to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by those in charge of the management. However, as this Court held in the aforesaid two judgments that nominating students for admissions would be an unacceptable restriction in clause (6) of Article 19 of the Constitution, Parliament has stepped in and in exercise of its amending power under Article 368 of the Constitution inserted clause (5) in Article 15 to enable the State to make a law m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of citizens or for the Scheduled Castes and the Scheduled Tribes to private educational institutions, whether aided or unaided, and if the Court finds that the power has not been exercised for the purposes mentioned in clause (5) of Article 15 of the Constitution, the Court will have to declare the law as ultra vires Article 19(1)(g) of the Constitution. In our opinion, therefore, the width of the power vested on the State under clause (5) of Article 15 of the Constitution by the constitutional amendment is not such as to destroy the right under Article 19(1)(g) of the Constitution. 24.We may now examine the contention of Mr. Nariman that clause (5) of Article 15 of the Constitution fails to make a distinction between aided and unaided educational institutions and treats both aided and unaided alike in the matter of making special provisions for admission of socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. The distinction between a private aided educational institution and a private unaided educational institution is that private educational institutions receive aid from the State, whereas private unaided educational ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. 30. Right of minorities to establish and administer educational institutions-(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. (1A) (2) The state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language. On the question whether the right of minority institutions under Article 30(1) of the Constitution would be affected by admission of students who do not belong to the minority community which has established the institutions, Kirpal C.J. writing the majority judgment in T.M.A. Pai Foundation (supra) considered the previous judgments of this Court and then held in paragraph 149 at page 582 and 583 of the SCC: 149. Although the right to administer includes within it a right to grant admission to student ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to fill up all the seats with students of the minority group, the moment the institution is granted aid, the institution will have to admit students of the nonminority group to a reasonable extent, whereby the character of the institution is not annihilated, and at the same time, the rights of the citizen engrafted under Article 29(2) are not subverted. It is for this reason that a variable percentage of admission of minority students depending on the type of institution and education is desirable, and indeed, necessary, to promote the constitutional guarantee enshrined in both Article 29(2) and Article 30. Thus, the law as laid down by this Court is that the minority character of an aided or unaided minority institution cannot be annihilated by admission of students from communities other than the minority community which has established the institution, and whether such admission to any particular percentage of seats will destroy the minority character of the institution or not will depend on a large number of factors including the type of institution. 26.Clause (5) of Article 15 of the Constitution enables the State to make a special provision, by law, for the advancem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecularism in India is the recognition and preservation of the different types of people, with diverse languages and different beliefs and Articles 29 and 30 seek to preserve such differences and at the same time unite the people of India to form one strong nation. (see paragraph 161 of the majority judgment of Kirpal, C.J., in T.M.A. Pai Foundation at page 587 of the SCC). In our considered opinion, therefore, by excluding the minority institutions referred to in clause (1) of Article 30 of the Constitution, the secular character of India is maintained and not destroyed. 28. We may now come to the submission of Mr. Nariman that the fundamental right under Article 21 read with Article 51A(j) of the Constitution is violated by clause (5) of Article 15 of the Constitution. According to Mr. Nariman, every person has a right under Article 21 and a duty under Article 51A(j) to strive towards excellence in all spheres of individual and collective activity, but this will not be possible if private educational institutions in which a person studies for the purpose of achieving excellence are made to admit students from amongst backward classes of citizens and from the Scheduled Castes an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the petitioners, we must reiterate some facts. Article 21A is titled Right to Education and it provides that 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. Accordingly, the 2009 Act was enacted by Parliament to provide free and compulsory education to all children of the age of six to fourteen years. The validity of the 2009 Act was challenged and considered in Society for Unaided Private Schools of Rajasthan v. Union of India Anr. (supra) by a three-Judge Bench of this Court. Two learned Judges S.H. Kapadia C.J. and Swatanter Kumar J. held that the 2009 Act is constitutionally valid and shall apply to the following: (i) a school established, owned or controlled by the appropriate Government or a local authority; (ii) an aided school including aided minority school(s) receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority; (iii) a school belonging to specified category; and (iv) an unaided non-minority school not receiving any kind of aid or grants to meet its expenses from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the territory of India or under the control of the Government of India. He submitted that this Court has held in P.D. Shamdasani v. The Central Bank of India Ltd. (AIR 1952 SC 1952) that the language and structure of Article 19 and its setting in Part III of the Constitution clearly show that the Article was intended to protect those freedoms against State action only and hence violation of rights of property by individuals is not within the purview of Article 19 of the Constitution. He submitted that this Court has also held in Smt. Vidya Verma v. Dr. Shiv Narain Verma (AIR 1956 SC 108) that the fundamental right of personal liberty under Article 21 of the Constitution is available against only the State and not against private individuals. He submitted that, therefore, the word State in Article 21A of the Constitution would not include private unaided educational institutions or private individuals. 33.Mr. Nariman submitted that before the Constitution (Eighty-Sixth Amendment) Act, 2002, Article 45 provided that the State shall endeavour to provide, within a period of ten years from the commencement of the Constitution, for free and compulsory education for all children un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Writ Petition (C) No.1081 of 2013 (Muslim Minority Schools Managers Association) and Mr. T.R. Andhyarujina, learned senior counsel appearing for intervener in Writ Petition (C) No.60 of 2014 (La Martineire Schools) that under Article 30(1) of the Constitution all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. They submitted that the State while making the law to provide free and compulsory education to all children of the age of six to fourteen years cannot be allowed to encroach on this right of the minority institutions under Article 30(1) of the Constitution. They referred to the decisions of this Court right from the Kerala Educational Bill case to the T.M.A. Pai case (supra) to argue that admitting children other than those of the minority community which establish the school cannot be forced upon the minority institutions, whether aided or unaided. They submitted that 2009 Act, if made applicable to minority schools, aided or unaided, will be ultra vires Article 30(1) of the Constitution. They submitted that the majority judgment of this Court in Society for Unaided Private Scho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducational institutions has no substance. Mr. Vishwanathan submitted that in paragraph 53 of the judgment in T.M.A. Pai Foundation (supra) this Court has held that while private unaided educational institutions have the right to admit students of their choice, admission of a small percentage of students belonging to weaker sections of the society by granting them freeships or scholarships, if not granted by the Government should also be done. He submitted that in paragraph 68 of T.M.A. Pai Foundation (supra), this Court has also held that a small percentage of seats may also be filled up to take care of poorer and backward sections of the society. He submitted that the 2009 Act, therefore, has provided in Section 12(1) (c) that an unaided private school shall admit in Class I, to the extent of at least twenty-five per cent of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion and this provision of the 2009 Act, therefore, is not ultra vires Article 19(1)(g) of the Constitution. 38.Regarding minority institutions, Mr. Vishwanathan submitted that unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 purpose, a legislation would be introduced in Parliament after the Constitution (Ninety-third Amendment) Bill, 200l 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 5lA 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. MURLI MANOHAR JOSHI. NEW DELHI; The 16th November, 2001. It will, thus, be clear from the Statement of Objects and Reasons extracted above that although the Directive Principle in Article 45 contemplated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hools under Article 19(1)(g) of the Constitution or the right of the minority schools, aided or unaided, under Article 30(1) of the Constitution. 41. While discussing the validity of clause (5) of Article 15 of the Constitution, we have already noticed that in paragraphs 53 and 68 of the judgment in T.M.A. Pai Foundation (supra), this Court has held that admission of a small percentage of students belonging to weaker sections of the society by granting them freeships or scholarships, if not granted by the Government and the admission to some of the seats to take care of poorer and backward sections of the society may be permissible and would not be inconsistent with the rights under Articles 19(1)(g) of the Constitution. In P.A. Inamdar (supra), however, this Court explained that there was nothing in this Court s judgment in T.M.A. Pai Foundation (supra) to say that such admission of students from amongst weaker, backward and poorer sections of the society in private unaided institutions can be done by the State because the power vested on the State in clause (6) of Article 19 of the Constitution is to make only regulatory provisions and this power could not be used by the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eved only through provision of inclusive elementary education to all. Provision of free and compulsory education of satisfactory quality to children from disadvantaged and weaker sections is, therefore, not merely the responsibility of schools run or supported by the appropriate Governments, but also of schools which are not dependent on Government funds. 5. It is, therefore, expedient and necessary to enact a suitable legislation as envisaged in Article 21A of the Constitution. 6. The Bill seeks to achieve this objective. It will be clear from the aforesaid extract that the 2009 Act intended to achieve the constitutional goal of equality of opportunity through inclusive elementary education to all and also intended that private schools which did not receive government aid should also take the responsibility of providing free and compulsory education of satisfactory quality to children from disadvantaged and weaker sections. 44. When we examine the 2009 Act, we find that under Section 12(1)(c) read with Section 2(n)(iv) of the Act, an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority is re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervations of Sikri, CJ. in Kesavananda Bharati Sripadagalvaru v. State of Kerala Anr. (supra): 178. The above brief summary of the work of the Advisory Committee and the Minorities Sub-committee shows that no one ever contemplated that fundamental rights appertaining to the minorities would be liable to be abrogated by an amendment of the Constitution. The same is true about the proceedings in the Constituent Assembly. There is no hint anywhere that abrogation of minorities rights was ever in the contemplation of the important members of the Constituent Assembly. It seems to me that in the context of the British plan, the setting up of Minorities Sub-committee, the Advisory Committee and the proceedings of these Committees, as well as the proceedings in the Constituent Assembly mentioned above, it is impossible to read the expression Amendment of the Constitution as empowering Parliament to abrogate the rights of minorities. Thus, the power under Article 21A of the Constitution vesting in the State cannot extend to making any law which will abrogate the right of the minorities to establish and administer schools of their choice. 46. When we look at the 2009 Act, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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