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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT     PETITION     (C)     NO.     95     OF     2010   

Society for Un-aided Private Schools  of Rajasthan      … Petitioner(s)

                         versus

U.O.I. & Anr.    …Respondent(s)

with Writ Petition (C) Nos. 98/2010, 126/2010, 137/2010,  228/2010, 269/2010, 310/2010, 364/2010, 384/2010,  21/2011, 22/2011, 24/2011, 47/2011, 50/2011, 59/2011,  83/2011, 86/2011, 88/2011, 99/2011, 101/2011,  102/2011, 104/2011, 115/2011, 118/2011, 126/2011,  148/2011, 154/2011, 176/2011, 186/2011, 205/2011,  238/11 and 239/11.

J     U     D     G     M     E     N     T   

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

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schools.

2. The judgment of Brother Radhakrishnan, J. fully sets  

out the various provisions of the 2009 Act as well as the  

issues which arise for determination, the core issue concerns  

the constitutional validity of the 2009 Act.

Introduction

3. To say that “a thing is constitutional is not to say that  

it is desirable” [see Dennis v. United States, (1950) 341 US  

494].

4. A fundamental principle for the interpretation of a  

written Constitution has been spelt out in R. v. Burah  

[reported in (1878) 5 I.A. 178] which reads as under:

“The established Courts of Justice, when a question  arises whether the prescribed limits have been  exceeded, must of necessity determine that question;  and the only way in which they can properly do so, is  by looking to the terms of the Constitution by which,  affirmatively, the legislative powers were created, and  by which, negatively, they are restricted.  If what has  been done is legislation, within the general scope of  the affirmative words which give the power, and if it  violates no express condition or restriction by which  that power is limited it is not for any Court to inquire  further, or to enlarge constructively those conditions  and restrictions”.

5. Education is a process which engages many different  

actors : the one who provides education (the teacher, the  

owner of an educational institution, the parents), the one who

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receives education (the child, the pupil) and the one who is  

legally responsible for the one who receives education (the  

parents, the legal guardians, society and the State).  These  

actors influence the right to education. The 2009 Act makes  

the Right of Children to Free and Compulsory Education  

justiciable.  The 2009 Act envisages that each child must  

have access to a neighbourhood school.  The 2009 Act has  

been enacted keeping in mind the crucial role of Universal  

Elementary Education for strengthening the social fabric of  

democracy through provision of equal opportunities to all.  

The Directive Principles of State Policy enumerated in our  

Constitution lay down that the State shall provide free and  

compulsory education to all children upto the age of 14 years.  

The said Act provides for right (entitlement) of children to free  

and compulsory admission, attendance and completion of  

elementary education in a neighbourhood school.  The word  

“Free” in the long title to the 2009 Act stands for removal by  

the State of any financial barrier that prevents a child from  

completing 8 years of schooling.  The word “Compulsory”  in  

that title stands for compulsion on the State and the parental  

duty to send children to school.  To protect and give effect to  

this right of the child to education as enshrined in Article 21

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and Article 21A of the Constitution, the Parliament has  

enacted the 2009 Act.

6. The 2009 Act received the assent of the President on  

26.8.2009.  It came into force w.e.f. 1.4.2010.  The provisions  

of this Act are intended not only to guarantee right to free and  

compulsory education to children, but it also envisages  

imparting of quality education by providing required  

infrastructure and compliance of specified norms and  

standards in the schools.  The Preamble states that the 2009  

Act stands enacted inter alia to provide for free and  

compulsory education to all children of the age of 6 to 14  

years.  The said Act has been enacted to give effect to Article  

21A of the Constitution.  

Scope     of     the     2009     Act   

7. Section 3(1) of the 2009 Act provides that every child of  

the age of 6 to 14 years shall have a right to free and  

compulsory education in a neighbourhood school till  

completion of elementary education.  Section 3(2) inter alia  

provides that no child shall be liable to pay any kind of fee or  

charges or expenses which may prevent him or her from  

pursuing and completing the elementary education.  An  

educational institution is charitable.  Advancement of

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education is a recognised head of charity.  Section 3(2) has  

been enacted with the object of removing financial barrier  

which prevents a child from accessing education.  The other  

purpose of enacting Section 3(2) is to prevent educational  

institutions charging capitation fees resulting in creation of a  

financial barrier which prevents a child from accessing or  

exercising its right to education which is now provided for  

vide Article 21A.  Thus, sub-Section (2) provides that no child  

shall be liable to pay any kind of fee or charges or expenses  

which may prevent him or her from pursuing or completing  

the elementary education.  Section 4 inter alia provides for  

special provision for children not admitted to or who have not  

completed elementary education.  Section 5 deals with the  

situation where there is no provision for completion of  

elementary education, then, in such an event, a child shall  

have a right to seek transfer to any other school, excluding  

the school specified in sub-clauses (iii) and (iv) of clause (n) of  

Section 2, for completing his or her elementary education.  

Chapter III provides for duties of appropriate government,  

local authority and parents.  Section 6 imposes an obligation  

on the appropriate government and local authority to  

establish a school within such areas or limits of

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neighbourhood, as may be prescribed, where it is not so  

established, within 3 years from the commencement of the  

2009 Act.  The emphasis is on providing “neighbourhood  

school” facility to the children at the Gram Panchayat level.  

Chapter IV of the 2009 Act deals with responsibilities of  

schools and teachers.  Section 12 (1)(c) read with Section 2(n)

(iii) and (iv) mandates that every recognised school imparting  

elementary education, even if it is an unaided school, not  

receiving any kind of aid or grant to meet its expenses from  

the appropriate government or the local authority, is obliged  

to admit in Class I, to the extent of at least 25% of the  

strength of that class, children belonging to weaker section  

and disadvantaged group in the neighbourhood and provide  

free and compulsory elementary education till its completion.  

As per the proviso, if the School is imparting pre-school  

education, the same regime would apply.  By virtue of Section  

12(2) the unaided school which has not received any land,  

building, equipment or other facilities, either free of cost or at  

concessional rate, would be entitled for reimbursement of the  

expenditure incurred by it to the extent of per child  

expenditure incurred by the State, or the actual amount  

charged from the child, whichever is less, in such manner as

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may be prescribed.  Such reimbursement shall not exceed per  

child expenditure incurred by a school established, owned or  

controlled by the appropriate government or a local authority.  

Section 13 envisages that no school or person shall, while  

admitting a child, collect any capitation fee and subject the  

child or his or her parents to any screening procedure.  

Section 15 mandates that a child shall be admitted in a  

school at the commencement of the academic year or within  

the prescribed extended period.  Sections 16 and 17 provide  

for prohibition of holding back and expulsion and of physical  

punishment or mental harassment to a child.  Section 18  

postulates that after the commencement of the 2009 Act no  

school, other than the excepted category, can be established  

or can function without obtaining a certificate of recognition  

from the appropriate authority.  The appropriate authority  

shall be obliged to issue the certificate of recognition within  

the prescribed period specifying the conditions there for, if the  

school fulfills the norms and standards specified under  

Sections 19 and 25 read with the Schedule to the 2009 Act.  

In the event of contravention of the conditions of recognition,  

the prescribed authority can withdraw recognition after giving  

an opportunity of being heard to such school.  The order of

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withdrawal of recognition should provide a direction to  

transfer the children studying in the de-recognised school to  

be admitted to the specified neighbourhood school.  Upon  

withdrawal of recognition, the de-recognised school cannot  

continue to function, failing which, is liable to pay fine as per  

Section 19(5).  If any person establishes or runs a school  

without obtaining certificate of recognition, or continues to  

run a school after withdrawal of the recognition, shall be  

liable to pay fine as specified in Section 19(5).  The norms and  

standards for establishing or for grant of recognition to a  

school are specified in Section 19 read with the Schedule to  

the 2009 Act.  All schools which are established before the  

commencement of the 2009 Act in terms of Section 19(2) are  

expected to comply with specified norms and standards  

within 3 years from the date of such commencement.  Failure  

to do so would entail in de-recognition of such school.  

Section 22 postulates that the School Management  

Committee constituted under Section 21, shall prepare a  

School Development Plan in the prescribed manner.  Section  

22(2) provides that the School Development Plan so prepared  

shall be the basis for the grants to be made by the  

appropriate government or local authority, as the case may

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be.  That plan, however, cannot have any impact on  

consideration of application for grant of recognition for  

establishing an unaided school.  To ensure that teachers  

should contribute in imparting quality education in the  

school itself, Section 28 imposes total prohibition on them to  

engage in private tuition or private teaching activities.  

Chapter VI inter alia provides for protection of rights of  

children.  Section 32 thus provides that any person having  

grievance relating to the right of child under the 2009 Act,  

may make a written complaint to the local authority having  

jurisdiction, who in turn is expected to decide it within three  

months after affording a reasonable opportunity of being  

heard to the parties concerned.  In addition, in terms of  

Section 31, the Commissions constituted under the  

provisions of the Commissions for Protection of Child Rights  

Act, 2005 can monitor the child’s right to education, so as to  

safeguard the right of the child upon receiving any complaint  

in that behalf relating to free and compulsory education.   

8. By virtue of the 2009 Act, all schools established prior  

to the commencement of the said Act are thus obliged to fulfill  

the norms and standards specified inter alia in Sections 25,  

26 and the Schedule of that Act. [See Section 19(2)].  The

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State is also expected to first weed out those schools which  

are non-performing, or under-performing or non-compliance  

schools and upon closure of such schools, the students and  

the teaching and non-teaching staff thereof should be  

transferred to the neighbourhood school.  The provision is  

meant not only to strengthen the latter school by adequate  

number of students but to consolidate and to impart quality  

education due to the addition of teaching staff.  Needless to  

observe, that if there is inadequate response to the  

government funded school, it is but appropriate that either  

the divisions thereof or the school itself be closed and the  

students and staff of such schools be transferred to a  

neighbourhood school by resorting to Section 18(3) of the  

2009 Act.  Only after taking such decisions could the School  

Development  Plan represent the correct position regarding  

the need of government aided schools in every locality across  

the State.  Besides, it will ensure proper and meaningful  

utilization of public funds.  In absence of such exercise, the  

end result would be that on account of existing non-

performing or under-performing or non-compliance schools,  

the School Development Plan would not reckon that locality  

for establishment of another school.  In our view, even the

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State Government(s), by resorting to the provision of the 2009  

Act, must take opportunity to re-organise its financial outflow  

at the micro level by weeding out the non-performing or  

under-performing or non-compliance schools receiving grant-

in- aid, so as to ensure that only such government funded  

schools, who fulfill the norms and standards, are allowed to  

continue, to achieve the object of the 2009 Act of not only  

providing free and compulsory education to the children in  

the neighbourhood school but also to provide quality  

education.  Thus, there is a power in the 2009 Act coupled  

with the duty of the State to ensure that only such  

government funded schools, who fulfill the norms and  

standards, are allowed to continue with the object of  

providing free and compulsory education to the children in  

the neighbourhood school.

Validity     and     applicability     of     the     2009     Act     qua     unaided    non-minority     schools   

9. To begin with, we need to understand the scope of  

Article 21A.  It provides that the State shall provide free and  

compulsory education to all children of the age of 6 to 14  

years in such manner as the State may, by law, determine.  

Thus, under the said Article, the obligation is on the State to

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provide free and compulsory education to all children of  

specified age.  However, under the said Article, the manner in  

which the said obligation will be discharged by the State has  

been left to the State to determine by law.  Thus, the State  

may decide to provide free and compulsory education to all  

children of the specified age through its own schools or  

through government aided schools or through unaided private  

schools.  The question is whether such a law transgresses  

any constitutional limitation?  In this connection, the first  

and foremost principle we have to keep in mind is that what  

is enjoined by the directive principles (in this case Articles 41,  

45 and 46) must be upheld as a “reasonable restriction”  

under Articles 19(2) to 19(6).  As far back as 1952, in State of  

Bihar v. Maharajadhiraja Sir Kameshwar Singh of  

Darbhanga [(1952) SCR 889], this Court has illustrated how a  

directive principle may guide the Court in determining crucial  

questions on which the validity of an important enactment  

may be hinged.  Thus, when the courts are required to decide  

whether the impugned law infringes a fundamental right, the  

courts need to ask the question whether the impugned law  

infringes a fundamental right within the limits justified by the  

directive principles or whether it goes beyond them.  For

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example, the scope of the right of equality of opportunity in  

matters relating to employment (Article 16) to any office in the  

State appears more fully defined when read with the  

obligation of the State to promote with special care the  

economic and other interests of the weaker sections (Article  

46).  Similarly, our understanding of the right “to practice any  

profession or occupation” [Article 19(1)(g)] is clarified when we  

read along with that right the obligation of the State to see  

that the health of the workers and the tender age of the  

children are not abused (Article 39).  Thus, we need to  

interpret the fundamental rights in the light of the  

directive principles.  The above principles are very relevant  

in this case because the very content of Article 21A comes  

from reading of Articles 41, 45 and 46 and, more particularly,  

from Article 45 (as it then stood before the Constitution  

(Eighty sixth Amendment) Act, 2002).  It has been urged  

before us that Article 45, as it then stood, imposed obligation  

on the State to provide for free and compulsory education for  

all children until they complete the age of 14 years and that  

the said obligation cannot be shifted or passed on to an  

unaided school, as defined in Section 2(n)(iv) of the 2009 Act.  

To answer the said contention, one needs to appreciate the

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scope of Articles 21, 21A, 19(1)(g) and Articles 41, 45 and 46  

of the Constitution.  At the outset, it may be stated, that  

fundamental rights have two aspects –  they act as fetter on  

plenary legislative powers and, secondly, they provide  

conditions for fuller development of our people including their  

individual dignity.  Right to live in Article 21 covers access to  

education.  But unaffordability defeats that access.  It defeats  

the State’s endeavour to provide free and compulsory  

education for all children of the specified age.  To provide for  

free and compulsory education in Article 45 is not the same  

thing as to provide free and compulsory education.  The word  

“for” in Article 45 is a preposition.  The word “education” was  

read into Article 21 by the judgments of this Court.  However,  

Article 21 merely declared “education”  to fall within the  

contours of right to live.  To provide for right to access  

education, Article 21A was enacted to give effect to Article 45  

of the Constitution.  Under Article 21A, right is given to the  

State to provide by law “free and compulsory education”.  

Article 21A contemplates making of a law by the State.  Thus,  

Article 21A contemplates right to education flowing from the  

law to be made which is the 2009 Act, which is child centric  

and not institution centric.  Thus, as stated, Article 21A

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provides that the State shall provide free and compulsory  

education to all children of the specified age in such manner  

as the State may, by law, determine.  The manner in which  

this obligation will be discharged by the State has been left to  

the State to determine by law.  The 2009 Act is thus enacted  

in terms of Article 21A.  It has been enacted primarily to  

remove all barriers (including financial barriers) which  

impede access to education.  One more aspect needs to be  

highlighted.  It is not in dispute that education is a  

recognised head of “charity”  [see T.M.A. Pai Foundation v.  

State of Karnataka (2002) 8 SCC 481].  Therefore, even  

according to T.M.A. Pai Foundation, if an educational  

institution goes beyond “charity”  into commercialization, it  

would not be entitled to protection of Article 19(1)(g).  This is  

where the paradox comes in.  If education is an activity which  

is charitable, could the unaided non-minority educational  

institution contend that the intake of 25% children belonging  

to weaker section and disadvantaged group only in class I as  

provided for in Section 12(1)(c) would constitute violation of  

Article 19(1)(g)? Would such a provision not be saved by the  

principle of reasonable restriction imposed in the interest of  

the general public in Article 19(6) of the Constitution?  

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10. Coming to the principle of reasonableness, it may be  

stated, that though subject-wise, Article 21A deals with  

access to education as against right to establish and  

administer educational institution in Article 19(1)(g), it is now  

not open to anyone to contend that the law relating to right to  

access education within Article 21A does not have to meet the  

requirement of Article 14 or Article 19 for its reasonableness.  

[See Khudiram Das v. State of West Bengal reported in  

(1975) 2 SCR 832]  After the judgment of this Court in  

Maneka Gandhi v. Union of India [(1978) 1 SCC 248], the  

principle of reasonableness is applicable to Article 14 of the  

Constitution.  As held by this Court in Glanrock Estate  

Private Limited v. State of Tamil Nadu [(2010) 10 SCC 96],  

Article 21 (right to life) remains the core of the Constitution  

around which Article 14, Article 19 and others revolve.  In  

other words, all other fundamental rights in Part III would be  

dependent upon right to life in Article 21 as interpreted by  

this Court to include right to live with dignity, right to  

education, etc.  At the end of the day, whether one adopts the  

pith and substance test or the nature and character of the  

legislation test or the effect test, one finds that all these tests

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have evolved as rules of interpretation only as a matter of  

reasonableness.  They help us to correlate Article 21 with  

Article 14, Article 19 and, so on.  Applying the above principle  

of reasonableness, though the right to access education falls  

as a subject matter under Article 21A and though to  

implement the said Article, Parliament has enacted the 2009  

Act, one has to judge the validity of the said Act in the light of  

the principle of reasonableness in Article 19(6), particularly,  

when in T.M.A. Pai Foundation and in P.A. Inamdar v.  

State of Maharashtra [(2005) 6 SCC 537], it has been held  

that right to establish and administer an educational  

institution falls under Article 19(1)(g) of the Constitution.  

Thus, the question which arises for determination is –  

whether Section 12(1)(c) of the 2009 Act is a reasonable  

restriction on the non-minority’s right to establish and  

administer an unaided educational institution under Article  

19(6)?  Article 21 says that “no person shall be deprived of  

his life...except according to the procedure established by  

law”  whereas Article 19(1)(g) under the chapter “right to  

freedom” says that all citizens have the right to practice any  

profession or to carry on any occupation, trade or business  

which freedom is not absolute but which could be subjected

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to social control under Article 19(6) in the interest of general  

public.  By judicial decisions, right to education has been  

read into right to life in Article 21.  A child who is denied right  

to access education is not only deprived of his right to live  

with dignity, he is also deprived of his right to freedom of  

speech and expression enshrined in Article 19(1)(a).  The  

2009 Act seeks to remove all those barriers including  

financial and psychological barriers which a child belonging  

to the weaker section and disadvantaged group has to face  

while seeking admission.  It is true that, as held in T.M.A. Pai  

Foundation as well as P.A. Inamdar, the right to establish  

and administer an educational institution is a fundamental  

right, as long as the activity remains charitable under Article  

19(1)(g), however, in the said two decisions the correlation  

between Articles 21 and 21A, on the one hand, and Article  

19(1)(g), on the other, was not under consideration.  Further,  

the content of Article 21A flows from Article 45 (as it then  

stood).  The 2009 Act has been enacted to give effect to Article  

21A.  For the above reasons, since the Article 19(1)(g) right is  

not an absolute right as Article 30(1), the 2009 Act cannot be  

termed as unreasonable.  To put an obligation on the unaided  

non-minority school to admit 25% children in class I under

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Section 12(1)(c) cannot be termed as an unreasonable  

restriction.  Such a law cannot be said to transgress any  

constitutional limitation.  The object of the 2009 Act is to  

remove the barriers faced by a child who seeks admission to  

class I and not to restrict the freedom under Article 19(1)(g).  

The next question that arises for determination is –  whether  

Section 12(1)(c) of the 2009 Act impedes the right of the non-

minority to establish and administer an unaided educational  

institution?  At the outset, it may be noted that Article 19(6)  

is a saving and enabling provision in the Constitution as it  

empowers the Parliament to make a law imposing reasonable  

restriction on the Article 19(1)(g) right to establish and  

administer an educational institution while Article 21A  

empowers the Parliament to enact a law as to the manner in  

which the State will discharge its obligation to provide for free  

and compulsory education.  If the Parliament enacts the law,  

pursuant to Article 21A, enabling the State to access the  

network (including infrastructure) of schools including  

unaided non-minority schools would such a law be said to be  

unconstitutional, not saved under Article 19(6)?  Answer is in  

the negative.  Firstly, it must be noted that the expansive  

provisions of the 2009 Act are intended not only to guarantee

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the right to free and compulsory education to children, but to  

set up an intrinsic regime of providing right to education to  

all children by providing the required infrastructure and  

compliance of norms and standards.  Secondly, unlike other  

fundamental rights, the right to education places a burden  

not only on the State, but also on the parent/ guardian of  

every child [Article 51A(k)].  The Constitution directs both  

burdens to achieve one end: the compulsory education of  

children free from the barriers of cost, parental obstruction or  

State inaction.  Thus, Articles 21A and 51A(k) balance the  

relative burdens on the parents and the State.  Thus, the  

right to education envisages a reciprocal agreement between  

the State and the parents and it places an affirmative burden  

on all stakeholders in our civil society.  Thirdly, right to  

establish an educational institution has now been recognized  

as a fundamental right within the meaning of Article 19(1)(g).  

This view is enforced by the opinion of this Court in T.M.A.  

Pai Foundation and P.A. Inamdar that all citizens have a  

right to establish and administer educational institutions  

under Articles 19(1)(g) and 26 but that right is subject to the  

provisions of Articles 19(6) and 26(a).  The constitutional  

obligation of the State to provide for free and compulsory

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education to the specified category of children is co-extensive  

with the fundamental right guaranteed under Article 19(1)(g)  

to establish an educational institution.  Lastly, the  

fundamental right to establish an educational institution  

cannot be confused with the right to ask for recognition or  

affiliation.  The exercise of a fundamental right to establish  

and administer an educational institution can be controlled in  

a number of ways.  Indeed, matters relating to the right to  

grant of recognition and/ or affiliation are covered within the  

realm of statutory right, which, however, will have to satisfy  

the test of reasonable restrictions [see Article 19(6)].  Thus,  

from the scheme of Article 21A and the 2009 Act, it is clear  

that the primary obligation is of the State to provide for free  

and compulsory education to children between the age of 6 to  

14 years and, particularly, to children who are likely to be  

prevented from pursuing and completing the elementary  

education due to inability to afford fees or charges.  

Correspondingly, every citizen has a right to establish and  

administer educational institution under Article 19(1)(g) so  

long as the activity remains charitable.  Such an activity  

undertaken by the private institutions supplements the  

primary obligation of the State.  Thus, the State can regulate

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by law the activities of the private institutions by imposing  

reasonable restrictions under Article 19(6).  The 2009 Act not  

only encompasses the aspects of right of children to free and  

compulsory education but to carry out the provisions of the  

2009 Act, it also deals with the matters pertaining to  

establishment of school (s) as also grant of recognition (see  

section 18).  Thus, after the commencement of the 2009 Act,  

the private management intending to establish the school has  

to make an application to the appropriate authority and till  

the certificate is granted by that authority, it cannot establish  

or run the school.  The matters relevant for the grant of  

recognition are also provided for in Sections 19, 25 read with  

the Schedule to the Act.  Thus, after the commencement of  

the 2009 Act, by virtue of Section 12(1)(c) read with Section  

2(n)(iv), the State, while granting recognition to the private  

unaided non-minority school, may specify permissible  

percentage of the seats to be earmarked for children who may  

not be in a position to pay their fees or charges.  In T.M.A.  

Pai Foundation, this Court vide para 53 has observed that  

the State while prescribing qualifications for admission in a  

private unaided institution may provide for condition of giving  

admission to small percentage of students belonging to

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weaker sections of the society by giving them freeships, if not  

granted by the government.  Applying the said law, such a  

condition in Section 12(1)(c) imposed while granting  

recognition to the private unaided non-minority school cannot  

be termed as unreasonable.  Such a condition would come  

within the principle of reasonableness in Article 19(6).  

Indeed, by virtue of Section 12(2) read with Section 2(n)(iv),  

private unaided school would be entitled to be reimbursed  

with the expenditure incurred by it in providing free and  

compulsory education to children belonging to the above  

category to the extent of per child expenditure incurred by the  

State in a school specified in Section 2(n)(i) or the actual  

amount charged from the child, whichever is less.  Such a  

restriction is in the interest of the general public.  It is also a  

reasonable restriction.  Such measures address two aspects,  

viz., upholding the fundamental right of the private  

management to establish an unaided educational institution  

of their choice and, at the same time, securing the interests of  

the children in the locality, in particular, those who may not  

be able to pursue education due to inability to pay fees or  

charges of the private unaided schools. We also do not see  

any merit in the contention that Section 12(1)(c) violates

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Article 14. As stated, Section 12(1)(c) inter alia provides for  

admission to class I, to the extent of 25% of the strength of  

the class, of the children belonging to weaker section and  

disadvantaged group in the neighbourhood and provide free  

and compulsory elementary education to them till its  

completion. The emphasis is on “free and compulsory  

education”. Earmarking of seats for children belonging to a  

specified category who face financial barrier in the matter of  

accessing education satisfies the test of classification in  

Article 14. Further, Section 12(1)(c) provides for level playing  

field in the matter of right to education to children who are  

prevented from accessing education because they do not have  

the means or their parents do not have the means to pay for  

their fees. As stated above, education is an activity in which  

we have several participants. There are number of  

stakeholders including those who want to establish and  

administer educational institutions as these supplement the  

primary obligation of the State to provide for free and  

compulsory education to the specified category of children.  

Hence, Section 12(1)(c) also satisfies the test of  

reasonableness, apart from the test of classification in Article  

14.

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11. The last question which we have to answer under this  

head is –  whether Section 12(1)(c) runs counter to the  

judgments of this Court in T.M.A. Pai Foundation and P.A.  

Inamdar or principles laid down therein? According to the  

petitioners, T.M.A. Pai Foundation defines various rights  

and has held vide para 50 that right to establish and  

administer broadly comprises the following:- (i) right to admit  

students (ii) right to set up a reasonable fee structure etc. (the  

rest are not important for discussion under this Head). That,  

T.M.A. Pai Foundation lays down the essence and structure  

of rights in Article 19(1)(g) insofar as they relate to  

educational institutions in compliance with (a) the Charity  

Principle  (b)  the Autonomy Principle  (c)  the Voluntariness  

Principle  (d)  Anti-nationalisation  (e)  Co-optation Principle.  

In support, reliance is placed by the petitioners on number of  

paras from the above two judgments. At the outset, we may  

reiterate that Article 21A of the Constitution provides that the  

State shall provide free and compulsory education to all  

children of the specified age in such manner as the State  

may, by law, determine. Thus, the primary obligation to  

provide free and compulsory education to all children of the  

specified age is on the State. However, the manner in which

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this obligation will be discharged by the State has been left to  

the State to determine by law. The State may do so through  

its own schools or through aided schools or through private  

schools, so long as the law made in this regard does not  

transgress any other constitutional limitation. This is because  

Article 21A vests the power in the State to decide the manner  

in which it will provide free and compulsory education to the  

specified category of children. As stated, the 2009 Act has  

been enacted pursuant to Article 21A. In this case, we are  

concerned with the interplay of Article 21, Article 21A, on the  

one hand, and the right to establish and administer  

educational institution under Article 19(1)(g) read with Article  

19(6). That was not the issue in T.M.A. Pai Foundation nor  

in P.A. Inamdar. In this case, we are concerned with the  

validity of Section 12(1)(c) of the 2009 Act. Hence, we are  

concerned with the validity of the law enacted pursuant to  

Article 21A placing restrictions on the right to establish and  

administer educational institutions (including schools) and  

not the validity of the Scheme evolved in Unni Krishnan, J.P.  

v. State of Andhra Pradesh  [(1993) 1 SCC 645]. The above  

judgments in T.M.A. Pai Foundation and P.A. Inamdar were  

not concerned with interpretation of Article 21A and the 2009

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Act. It is true that the above two judgments have held that all  

citizens have a right to establish and administer educational  

institutions under Article 19(1)(g), however, the question as to  

whether the provisions of the 2009 Act constituted a  

restriction on that right and if so whether that restriction was  

a reasonable restriction under Article 19(6) was not in issue.  

Moreover, the controversy in T.M.A. Pai Foundation arose in  

the light of the scheme framed in Unni Krishnan’s case and  

the judgment in P.A. Inamdar was almost a sequel to the  

directions in Islamic Academy of Education v. State of  

Karnataka [(2003) 6 SCC 697] in which the entire focus was  

Institution centric and not child centric and that too in the  

context of higher education and professional education where  

the level of merit and excellence have to be given a different  

weightage than the one we have to give in the case of  

Universal Elementary Education for strengthening social  

fabric of democracy through provision of equal opportunities  

to all and for children of weaker section and disadvantaged  

group who seek admission not to higher education or  

professional courses but to Class I. In this connection, the  

relevant paras from T.M.A. Pai Foundation make the  

position clear. They are paras 37, 39, 40, 42, 45, 48, 49 and

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50 (read together), 51, 53, 56, 58 - 61, 62, 67, 68, 70 etc.,  

similarly, paras 26, 35, 104, 146 of P.A. Inamdar.  We quote  

the relevant para in support of what we have stated above:

T.M.A. Pai Foundation

Para 48 read with para 50

48. Private education is one of the most dynamic  and fastest-growing segments of post-secondary  education at the turn of the twenty-first century. A  combination of unprecedented demand for access     to    higher     education   and the inability or unwillingness of  the Government to provide the necessary support  has brought private higher education to the forefront.  Private institutions, with a long history in many  countries, are expanding in scope and number, and  are becoming increasingly important in parts of the  world that relied almost entirely on the public sector.

50. The right to establish and administer broadly  comprises the following rights:

(a) to admit students; (b) to set up a reasonable fee structure; (c) to constitute a governing body; (d) to appoint staff (teaching and non-teaching);  

and (e) to take action if there is dereliction of duty on  

the part of any employees.

58. For admission into any professional  institution, merit must play an important role. While  it     may     not     be     normally     possible     to     judge     the     merit     of    the     applicant     who     seeks     admission     into     a     school,    while     seeking     admission     to     a     professional     institution    and     to     become     a     competent     professional,     it     is    necessary     that     meritorious     candidates     are     not    unfairly     treated   or put at a disadvantage by  preferences shown to less meritorious but more  influential applicants. Excellence in professional

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education would require that greater emphasis be  laid on the merit of a student seeking admission.  Appropriate regulations for this purpose may be  made keeping in view the other observations made in  this judgment in the context of admissions to  unaided institutions.

59. Merit is usually determined, for admission to  professional and higher education colleges, by either  the marks that the student obtains at the qualifying  examination or school-leaving certificate stage  followed by the interview, or by a common entrance  test conducted by the institution, or in the case of  professional colleges, by government agencies.

60. Education is taught at different levels, from  primary to professional. It is, therefore, obvious that  government     regulations     for     all     levels     or     types     of    educational     institutions     cannot     be     identical  ; so also,  the extent of control or regulation could be greater  vis-a-vis aided institutions.

61. In the case of unaided private schools,  maximum autonomy has to be with the management  with regard to administration, including the right of  appointment, disciplinary powers, admission of  students and the fees to be charged. At     the     school    level,     it     is     not     possible     to     grant     admissions     on     the    basis     of     merit.   It is no secret that the examination  results at all levels of unaided private schools,  notwithstanding the stringent regulations of the  governmental authorities, are far superior to the  results of the government-maintained schools. There  is no compulsion on students to attend private  schools. The rush for admission is occasioned by the  standards maintained in such schools, and  recognition of the fact that State-run schools do not  provide the same standards of education. The State  says that it has no funds to establish institutions at  the same level of excellence as private schools. But  by curtailing the income of such private schools, it  disables those schools from affording the best  facilities because of a lack of funds. If this lowering of  standards from excellence to a level of mediocrity is  to be avoided, the State has to provide the difference

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which, therefore, brings us back in a vicious circle to  the original problem viz. the lack of State funds. The  solution would appear to lie in the States not using  their scanty resources to prop up institutions that  are able to otherwise maintain themselves out of the  fees charged, but in improving the facilities and  infrastructure of State-run schools and in  subsidizing the fees payable by the students there. It  is in the interest of the general public that more good  quality schools are established; autonomy and non- regulation of the school administration in the right of  appointment, admission of the students and the fee  to be charged will ensure that more such institutions  are established. The fear that if a private school is  allowed to charge fees commensurate with the fees  affordable, the degrees would be “purchasable” is an  unfounded one since the standards of education can  be and are controllable through the regulations  relating to recognition, affiliation and common final  examinations.

P.A. Inamdar

26. These matters have been directed to be placed  for hearing before a Bench of seven Judges under  orders of the Chief Justice of India pursuant to the  order dated 15-7-2004 in P.A. Inamdar v. State of  Maharashtra and order dated 29-7-2004 in  Pushpagiri Medical Society v. State of Kerala. The  aggrieved persons before us are again classifiable in  one class, that is, unaided minority and non- minority institutions imparting professional  education. The issues arising for decision before us  are only three:

(i) the fixation of “quota”  of  admissions/students in respect of unaided  professional institutions;

(ii) the holding of examinations for admissions  to such colleges, that is, who will hold the  entrance tests; and

(iii) the fee structure.

104. Article 30(1) speaks of “educational

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institutions”  generally and so does Article 29(2).  These articles do not draw any distinction between  an educational institution dispensing theological  education or professional or non-professional  education. However, the terrain of thought as has  developed through successive judicial  pronouncements culminating in Pai Foundation is  that looking at the concept of education, in the  backdrop of the constitutional provisions,  professional     educational     institutions     constitute     a    class     by     themselves     as     distinguished     from    educational     institutions     imparting     non-professional    education. It is not necessary for us to go deep into  this aspect of the issue posed before us inasmuch as  Pai Foundation has clarified that     merit     and    excellence     assume     special     significance     in     the     context    of     professional     studies  . Though merit and excellence  are not anathema to non-professional education, yet  at that level and due to the nature of education  which is more general, the need for merit and  excellence therein is not of the degree as is called for  in the context of professional education.

146. Non-minority unaided institutions can also  be subjected to similar restrictions which are found  reasonable and in the interest of the student  community. Professional     education     should     be     made    accessible     on     the     criterion     of     merit     and     on     non-   exploitative     terms   to all eligible students on a  uniform basis. Minorities or non-minorities, in  exercise of their educational rights in the field of  professional education have an obligation and a duty  to maintain requisite     standards     of     professional    education     by     giving     admissions     based     on     merit     and    making     education     equally     accessible     to     eligible    students through a fair and transparent admission  procedure and based on a reasonable fee structure.

12. P.A. Inamdar holds that right to establish and  

administer educational institution falls in Article 19(1)(g).  It

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further holds that seat-sharing, reservation of seats, fixing of  

quotas, fee fixation, cross-subsidization, etc. imposed by  

judge-made scheme in professional/ higher education is an  

unreasonable restriction applying the principles of  

Voluntariness, Autonomy, Co-optation and Anti-

nationalisation, and, lastly, it deals with inter-relationship of  

Articles 19(1)(g), 29(2) and 30(1) in the context of the minority  

and non-minority’s right to establish and administer  

educational institutions.  The point here is how does one read  

the above principles of Autonomy, Voluntariness, Co-optation  

and Anti-nationalisation of seats.  On reading T.M.A. Pai  

Foundation and P.A. Inamdar in proper perspective, it  

becomes clear that the said principles have been applied in  

the context of professional/ higher education where merit and  

excellence have to be given due weightage and which tests do  

not apply in cases where a child seeks admission to class I  

and when the impugned Section 12(1)(c) seeks to remove the  

financial obstacle.  Thus, if one reads the 2009 Act including  

Section 12(1)(c) in its application to unaided non-minority  

school(s), the same is saved as reasonable restriction under  

Article 19(6).

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13. However, we want the Government to clarify the  

position on one aspect.  There are boarding schools and  

orphanages in several parts of India.  In those institutions,  

there are day scholars and boarders.  The 2009 Act could  

only apply to day scholars.  It cannot be extended to  

boarders.  To put the matter beyond doubt, we recommend  

that appropriate guidelines be issued under Section 35 of the  

2009 Act clarifying the above position.  

Validity     and     applicability     of     the     2009     Act     qua     unaided    minority     schools   

14. The inspiring preamble to our Constitution shows that  

one of the cherished objects of our Constitution is to assure  

to all its citizens the liberty of thought, expression, belief,  

faith and worship.  To implement and fortify these purposes,  

Part III has provided certain fundamental rights including  

Article 26 of the Constitution which guarantees the right of  

every religious denomination or a section thereof, to establish  

and maintain institutions for religious and charitable  

purposes; to manage its affairs in matters of religion; to  

acquire property and to administer it in accordance with law.  

Articles 29 and 30 confer certain educational and cultural  

rights as fundamental rights.

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15. Article 29(1) confers on any section of the citizens a  

right to conserve its own language, script or culture by and  

through educational institutions and makes it obvious that a  

minority could conserve its language, script or culture and,  

therefore, the right to establish institutions of its choice is a  

necessary concomitant to the right to conserve its distinctive  

language, script or culture and that right is conferred on all  

minorities by Article 30(1).  That right, however, is subject to  

the right conferred by Article 29(2).

16. Article 30(1) gives the minorities two rights: (a) to  

establish and (b) to administer educational institutions of  

their choice.  The real import of Article 29(2) and Article 30(1)  

is that they contemplate a minority institution with a sprinkle  

of outsiders admitted into it.  By admitting a non-member  

into it the minority institution does not shed its character and  

cease to be a minority institution.

17. The key to Article 30(1) lies in the words “of their  

choice”.

18. The right established by Article 30(1) is a fundamental  

right declared in terms absolute unlike the freedoms  

guaranteed by Article 19 which is subject to reasonable

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restrictions.  Article 30(1) is intended to be a real right for the  

protection of the minorities in the matter of setting up  

educational institutions of their own choice.  However,  

regulations may lawfully be imposed either by legislative or  

executive action as a condition of receiving grant or of  

recognition.  However, such regulation must satisfy the test of  

reasonableness and that such regulation should make the  

educational institution an effective vehicle of education for  

the minority community or for the persons who resort to it.  

Applying the above test in the case of Rev. Sidhajbhai  

Sabhai v. State of Bombay [1963] SCR 837, this Court held  

the rule authorizing reservation of seats and the threat of  

withdrawal of recognition under the impugned rule to be  

violative of Article 30(1).

19. The above well-settled principles have to be seen in the  

context of the 2009 Act enacted to implement Article 21A of  

the Constitution.  At the very outset, the question that arises  

for determination is –  what was the intention of the  

Parliament?  Is the 2009 Act intended to apply to unaided  

minority schools?  In answer to the above question, it is  

important to note that in the case of P.A. Inamdar, this Court

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held that there shall be no reservations in private unaided  

colleges and that in that regard there shall be no difference  

between the minority and non-minority institutions.  

However, by the Constitution (Ninety-third Amendment) Act,  

2005, Article 15 is amended.  It is given Article 15(5).  The  

result is that P.A. Inamdar has been overruled on two  

counts: (a) whereas this Court in P.A. Inamdar had stated  

that there shall be no reservation in private unaided colleges,  

the Amendment decreed that there shall be reservations; (b)  

whereas this Court in P.A. Inamdar had said that there shall  

be no difference between the unaided minority and non-

minority institutions, the Amendment decreed that there  

shall be a difference.  Article  15(5) is an enabling provision  

and it is for the respective States either to enact a legislation  

or issue an executive instruction providing for reservation  

except in the case of minority educational institutions  

referred to in Article 30(1).  The intention of the Parliament is  

that the minority educational institution referred to in Article  

30(1) is a separate category of institutions which needs  

protection of Article 30(1) and viewed in that light we are of  

the view that unaided minority school(s) needs special  

protection under Article 30(1). Article 30(1) is not conditional

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as Article 19(1)(g).  In a sense, it is absolute as the  

Constitution framers thought that it was the duty of the  

Government of the day to protect the minorities in the matter  

of preservation of culture, language and script via  

establishment of educational institutions for religious and  

charitable purposes [See: Article 26].  Reservations of 25% in  

such unaided minority schools result in changing the  

character of the schools if right to establish and administer  

such schools flows from the right to conserve the language,  

script or culture, which right is conferred on such unaided  

minority schools.  Thus, the 2009 Act including Section 12(1)

(c) violates the right conferred on such unaided minority  

schools under Article 30(1).  However, when we come to aided  

minority schools we have to keep in mind Article 29(2). As  

stated, Article 30(1) is subject to Article 29(2). The said Article  

confers right of admission upon every citizen into a State-

aided educational institution.  Article 29(2) refers to an  

individual right.  It is not a class right.  It applies when an  

individual is denied admission into an educational institution  

maintained or aided by the State.  The 2009 Act is enacted to  

remove barriers such as financial barriers which restrict  

his/her access to education.  It is enacted pursuant to Article

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21A.  Applying the above tests, we hold that the 2009 Act is  

constitutionally valid qua aided minority schools.

Conclusion     (according     to     majority):   

20. Accordingly, we hold that the Right of Children to Free  

and Compulsory Education Act, 2009 is constitutionally valid  

and shall apply to the following:

(i) a school established, owned or controlled by the  

appropriate Government or a local authority;

(ii) an aided school including aided minority school(s)  

receiving aid or grants to meet whole or part of its  

expenses from the appropriate Government or the local  

authority;

(iii) a school belonging to specified category; and

(iv) an unaided non-minority school not receiving any kind  

of aid or grants to meet its expenses from the  

appropriate Government or the local authority.

However, the said 2009 Act and in particular Sections 12(1)

(c) and 18(3) infringes the fundamental freedom guaranteed  

to unaided minority schools under Article 30(1) and,  

consequently, applying the R.M.D. Chamarbaugwalla v.

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Union of India [1957 SCR 930] principle of severability, the  

said 2009 Act shall not apply to such schools.

21. This judgment will operate from today.  In other words,  

this will apply from the academic year 2012-13.  However,  

admissions given by unaided minority schools prior to the  

pronouncement of this judgment shall not be reopened.   

22. Subject to what is stated above, the writ petitions are  

disposed of with no order as to costs.

…..……………………….......CJI         (S. H. Kapadia)

.........…………………………..J.         (Swatanter Kumar)

New Delhi;  April 12, 2012   

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT     PETITION     (CIVIL)     NO.95     OF      2010   

SOCIETY FOR UN-AIDED  P.SCHOOL OF RAJASTHAN …Petitioner(s)

Versus

U.O.I. & ANR.                   ..Respondent(s)

WITH

W.P. (C) NOs.98/2010, 126/2010, 137/2010, 228/2010,  269/2010, 310/2010, 364/2010, 384/2010, 22/2011,  24/2011, 21/2011, 47/2011, 59/2011, 50/2011, 83/2011,  88/2011, 99/2011, 102/2011, 104/2011, 86/2011,  101/2011, 115/2011, 154/2011, 126/2011, 118/2011,  186/2011, 148/2011, 176/2011,  205/2011,  238/2011 and  239/2011

J     U     D     G     M     E     N     T   

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

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was enacted following the insertion of Article 21A by the  

Constitution (Eighty-sixth Amendment) Act, 2002.  Article  

21A provides for free and compulsory education to all  

children of the age 6 to 14 years and also casts an obligation  

on the State to provide and ensure admission, attendance  

and completion of elementary education in such a manner  

that the State may by law determine.  The Act is, therefore,  

enacted to provide for free and compulsory education to all  

children of the age 6 to 14 years and is anchored in the belief  

that the values of equality, social justice and democracy and  

the creation of just and humane society can be achieved only  

through a provision of inclusive elementary education to all  

the children.  Provision of free and compulsory education of  

satisfactory quality to the children from disadvantaged  

groups and weaker sections, it was pointed out, is not merely  

the responsibility of the schools run or supported by the  

appropriate government, but also of schools which are not  

dependant on government funds.   

2. Petitioners in all these cases, it may be mentioned,  

have wholeheartedly welcomed the introduction of Article 21A  

in the Constitution and acknowledged it as a revolutionary

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step providing universal elementary education for all the  

children.  Controversy in all these cases is not with regard to  

the validity of Article 21A, but mainly centers around its  

interpretation and the validity of Sections 3, 12(1)(b) and  

12(1)(c) and some other related provisions of the Act, which  

cast obligation on all elementary educational institutions to  

admit children of the age 6 to 14 years from their  

neighbourhood, on the principle of social inclusiveness.  

Petitioners also challenge certain other provisions purported  

to interfere with the administration, management and  

functioning of those institutions.   I have dealt with all those  

issues in Parts I to V of my judgment and my conclusions are  

in Part VI.    

3. Part I of the judgment deals with the circumstances  

and background for the introduction of Article 21A and its  

scope and object and the interpretation given by the  

Constitution Benches of this Court on right to education.  

Part II of the judgment deals with various socio-economic  

rights recognized by our Constitution and the impact on  

other fundamental rights guaranteed to others and the  

measures adopted by the Parliament to remove the obstacles

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for realization of those rights, in cases where there is conflict.  

In Part III of the judgment, I have dealt with the obligations  

and responsibilities of the non-state actors in realization of  

children’s rights guaranteed under Article 21A and the Act.  

In Part IV, I have dealt with the constitutional validity of  

Section 12(1)(b), 12(1)(c) of the Act and in Part V, I have dealt  

with the challenge against other provisions of the Act and my  

conclusions are in Part VI.

4. Senior lawyers –  Shri Rajeev Dhavan, Shri T.R.  

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

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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 to be closed down.  

Mohini Jain was affirmed in Unni Krishnan to the extent of  

holding that the right to education flows from Article 21 of the  

Constitution and charging of capitation fee was illegal.  The  

Court partly overruled Mohini Jain and held that the right to  

free education is available only to children until they  

complete the age of 14 years and after that obligation of the  

State to provide education would be subject to the limits of its  

economic capacity and development.   Private unaided  

recognized/affiliated educational institutions running  

professional courses were held entitled to charge the fee  

higher than that charged by government institutions for

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similar courses but that such a fee should not exceed the  

maximum limit fixed by the State.  The Court also formulated  

a scheme and directed every authority to impose that scheme  

upon institutions seeking recognition/affiliation, even if they  

are unaided institutions.  Unni Krishnan introduced the  

concept of “free seats” and “payment seats” and ordered that  

private unaided educational institutions should not add any  

further conditions and were held bound by the scheme.  

Unni Krishnan also recognized the right to education as a  

fundamental right guaranteed under Article 21 of the  

Constitution and held that the right is available to children  

until they complete the age of 14 years.

6. The Department of Education, Ministry of Human  

Resources Development, Government of India after the  

judgment in Unni Krishnan made a proposal to amend the  

Constitution to make the right to education a fundamental  

right for children up to the age of 14 years and also a  

fundamental duty of citizens of India so as to achieve the goal  

of universal elementary education.  The Department also  

drafted a Bill [Constitution (Eighty-third Amendment) Bill,  

1997] so as to insert a new Article 21A in the Constitution

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which read as follows:

       “21A.     Right     to     education  .    

21A(1) The State shall provide free and  compulsory education to all citizens of the age of six  to fourteen years.  

Clause(2) The Right to Free and Compulsory  Education referred to in clause (1) shall be enforced  in such manner as the State may, by law,  determine.   

Clause (3)  The State shall not make any law, for  free and compulsory education under Clause(2), in  relation to the educational institutions not  maintained by the State or not receiving aid out of  State funds.”  

7. The draft Bill was presented before the Chairman,  

Rajya Sabha on 28.07.1997, who referred the Bill to a  

Committee for examination and report.   The Committee  

called for suggestions/views from individuals, organisations,  

institutions etc. and ultimately submitted its report on  

4.11.1997.    The Committee in its Report referred to the  

written note received from the 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.

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This right flows from Article 21 relating to personal  liberty and its content, parameters have to be  determined in the light of Article 41 which provides  for right to work, to education and to public  assistance in certain cases and Article 45 which  provides for free and compulsory education to  children up to the age of 14 years.  The apex Court  has observed that the obligations created by these  Articles of the Constitution can be discharged by  the State either by establishing institutions of its  own or by aiding recognising and granting affiliation  to educational institutions.  On clause (3) of the  proposed Article 21, the report stated as follows:  

“11. Clause (3) of the proposed Article  21 provides that the State shall not make any  law for free and compulsory education under  clause (2), in relation to the educational  institutions not maintained by the State or not  receiving aid out of State funds.  However,  strong apprehensions were voiced about clause  (3) of the proposed new Article 21A.  Many of  the people in the written memoranda and also  educational experts in the oral evidence have  expressed displeasure over keeping the private  educational institutions outside the purview of  the fundamental right to be given to the  children.  The Secretary stated that the  Supreme Court in the Unni Krishnan judgment  said that wherever the State is not providing  any aid to any institution, such an institution  need not provide free education.  The  Department took into account the Supreme  Court judgment in the Unni Krishnan case  which laid down that no private institution, can  be compelled to provide free services.  Therefore, they provided in the Constitutional  amendment that this concept of free education  need not be extended to schools or institutions  which are not aided by the Government, the  Secretary added.  He, however, stated that there  was no intention, to exclude them from the  overall responsibility to provide education.”

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8.       The Committee specifically referred to the judgment in  

Unni Krishnan in paragraph 15.14 of the Report.   Reference  

was also made to the dissenting note of one of the members.  

Relevant portion of the report is extracted below:

“15.14. Clause (3) of the proposed Article  21(A) prohibits the State from making any law for  free and compulsory education in relation to  educational institutions not maintained by the  State or not receiving aid out of State funds.  This  issue was discussed by the Members of the  Committee at length.  The members were in  agreement that even though the so called private  institutions do not receive any financial aid, the  children studying in those institutions should not  be deprived of their fundamental right.  As regards  the interpretation as to whether the private  institutions should provide free education or not,  the Committee is aware of the Supreme Court  judgment given in the Unni Krishnan case.  This  judgment provides the rule for application and  interpretation.  In view of the judgment, it is not  necessary to make a clause in the Constitution. It  would     be     appropriate     to     leave     the     interpretation     to    the     courts     instead     of     making     a     specific     provision     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

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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 laws regarding free and  compulsory education in relation to educational  institutions not maintained by the State or not  receiving aid out of State funds.

A Committee of State Education Ministers  have already considered the issue in view of the  Unni Krishnan case, and found it not feasible to  bring unaided private educational institutions  within the purview of the Bill.

Hence, I state once again that the proposed  clause “21A(3”) must be inserted in the Bill.

Yours sincerely,

Sd/’ (SMT. HEDWIG MICHAEL REGO)”

(emphasis supplied)

9.     Report referred to above was adopted by the  

Parliamentary Standing Committee on Human Resource  

Development and submitted the same to the Rajya Sabha on  

24.11.1997 and also laid on the Table of the Lok Sabha on  

24.11.1997.    The Lok Sabha was however dissolved soon  

thereafter and elections were declared and that Bill was not

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further pursued.   

10.      The Chairman of the Law Commission who authored  

Unni Krishnan judgment took up the issue suo moto.  

Following the ratio in Unni Krishnan, the Law Commission  

submitted its 165th Report to the Ministry of Law, Justice and  

Company Affairs, Union of India vide letter dated 19.11.1998.  

Law Commission in that letter stated as follows: “Law  

Commission had taken up the aforesaid subject suo moto  

having regard to the Directive Principle of the Constitution of  

India as well as the decision of the Supreme Court of India.”

11.    Referring to the Constitution (Eighty-third Amendment)  

Bill, 1997, Law Commission in its report in paragraph 6.1.4  

stated as under:

“6.1.4 (page 165.35):  The     Department     of    Education     may     perhaps     be     right     in     saying      that     as    of     today     the     private     educational     institutions     which    are     not     in     receipt     of     any     grant     or     aid     from     the     State,    cannot     be     placed     under     an     obligation     to     impart     free    education     to     all     the     students     admitted     into     their    institutions.      However,     applying     the     ratio     of    Unnikrishnan     case,     it     is     perfectly     legitimate     for     the    State     or     the     affiliating     Board,     as     the     case     may     be,     to    require     the     institution     to     admit     and     impart     free    education     to     fifty     per     cent     of     the     students     as     a    condition     for     affiliation     or     for     permitting     their    students     to     appear     for     the     Government/Board    examination.  To start with, the percentage can be

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prescribed as twenty.  Accordingly, twenty per cent  students could be selected by the concerned  institution in consultation with the local authorities  and the parent-teacher association.   This proposal  would enable the unaided institutions to join the  national endeavour to provide education to the  children of India and to that extent will also help  reduce the financial burden upon the State.”  (emphasis supplied)

12.   The Law Commission which had initiated the  

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

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send their children to appear for the  Government/Board examination also casts a  corresponding social obligation upon them towards  the society.  The recognition/affiliation/permission  aforesaid is meant to enable them to supplement  the effort of the State and not to enable them to  make money.   Since they exist and function  effectively because of such  recognition/affiliation/permission granted by public  authorities, they must and are bound to serve the  public interest.  For this reason, the unaided  educational institutions must be made to impart  free education to 50% of the students admitted to  their institutions.  This principle has already been  applied to medical, engineering and other colleges  imparting professional education and there is no  reason why the schools imparting  primary/elementary education should not be placed  under the same obligation.  Clause (3) of proposed  Article 21A may accordingly be recast to give effect  to the above concept and obligation.”

Reference may also be made to the following paragraphs  

of the Report:

“6.8.   The aforesaid bill was referred by the  Chairman, Rajya Sabha to the Department-Related  Parliamentary Standing Committee on Human  Resources Development.  A press communiqué  inviting suggestions/views was issued on 18th  August, 1997.  The Committee considered the Bill in  four sittings and heard oral evidence.  It adopted  the draft report at its meeting held on 4th November,  1997.  The report was then presented to the Rajya  Sabha on 24th November, 1997 and laid on the table  of the Lok Sabha on the same day.  Unfortunately,  the Lok Sabha was dissolved soon thereafter and  elections were called.

6.8.1.   The Budget Session after the new Lok  Sabha was constituted is over.  There is, however,

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no indication whether the Government is inclined to  pursue the pending bill.

6.9.   The question is debatable whether it is at all  necessary to amend the Constitution when there is  an explicit recognition of the right to education till  the age of fourteen years by the Supreme Court in  Unni     Krishnan  ’  s   case.  As the said judgment can be  overruled by a larger Bench in another case, thus  making this right to education vulnerable, it would  appear advisable to give this right constitutional  sanctity.”

13.      Law Commission was giving effect to the ratio of Unni  

Krishnan and made suggestions to bring in Article 21A  

mainly on the basis of the scheme framed in Unni Krishnan  

providing “free seats” in private educational institutions.

14.     The Law Commission report, report of the  

Parliamentary Standing Committee, judgment in Unni  

Krishnan etc. were the basis on which the Constitution  

(Ninety-third Amendment) Bill, 2001 was prepared and  

presented.  Statement of objects and reasons of the Bill given  

below would indicate that fact:

“2. With a view to making right to education free  and compulsory education a fundamental right, the  Constitution (Eighty-third Amendment ) Bill, 1997  was introduced in the Parliament to insert a new  article, namely, Article 21A conferring on all  children in the age group of 6 to14 years the right to  free and compulsory education. The said Bill was

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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 purpose, a legislation would be introduced in  parliament after the Constitution (Ninety-third  Amendment) Bill, 2001 is enacted;

(b) to provide in article 45 of the Constitution that  the State shall endeavour to provide early childhood  care and education to children below the age of six  years; and

(c) to amend article 51A of the Constitution with a  view to providing that it shall be the obligation of  the parents to provide opportunities for education to  their children.  

4. The Bill seeks to achieve the above objects.”

15.       The above Bill was passed and received the assent of  

the President on 12.12.2002 and was published in the  

Gazette of India on 13.12.2002 and the following provisions  were inserted in the Constitution; by the Constitution  

(Eighty-sixth Amendment) Act, 2002.

Part     III   –   Fundamental     Rights  

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"21A. Right to Education.–  The State shall  provide free and compulsory education to all  children of the age of six to fourteen years in such  manner as the State may, by law, determine.

   Part     IV   –   Directive     Principles     of     State     Policy      

45. Provision for early childhood care and  education to children below the age of six  years.–  The State shall endeavour to provide early  childhood care and education for all children until  they complete the age of six years.

Part     IVA   –   Fundamental     Duties      

51A. Fundamental duties - It shall be the duty of  every citizen of India –  

xxx xxx xxx

(k) who is a parent or guardian to provide  opportunities for education to his child or, as the  case may be, ward between the age of six and  fourteen years."

16.     Reference was earlier made to the Parliamentary  

Standing Committee Report, 165th Law Commission Report,  

1998 and the opinion expressed by the Department of  

Education so as to understand the background of the  

introduction of Article 21A which is also necessary to properly  

understand the scope of the Act.    In Herron v. Rathmines  

and Rathgar Improvement Commissioners [1892] AC 498  

at p. 502, the Court held that the subject-matter with which  

the Legislature was dealing, and the facts existing at the time

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with respect to which the Legislature was legislating are  

legitimate topics to consider in ascertaining what was the  

object and purpose of the Legislature in passing the Act.  In  

Mithilesh Kumari and Another v. Prem Behari Khare  

[(1989) 2 SCC 95], this Court observed that “where a  

particular enactment or amendment is the 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

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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 restrictions under Article 19(6) of  

the Constitution on the administration of the private  

educational institutions and that the rights of minority  

communities guaranteed under Article 29 and Article 30 were  

eroded.  Unni Krishnan scheme which insisted that private  

unaided educational institutions should provide for “free  

seats”  as a condition for recognition or affiliation was also  

questioned contending that the same would amount to  

nationalisation of seats.   

PAI     FOUNDATION   19.   T.M.A. Pai Foundation and others v. State of  

Karnataka and others [(2002) 8 SCC 481] examined the  

correctness of the ratio laid down in Unni Krishnan and also  

the validity of the scheme.  The correctness of the rigid  

percentage of reservation laid down in St. Stephen’s College  

v. University of Delhi [(1992) 1 SCC 558] in the case of

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minority aided educational institutions and the meaning and  

contents of Articles 30 and 29(2) were also examined.    

20.  Pai Foundation acknowledged the right of all citizens  

to practice any profession, trade or business under Article  

19(1)(g) and Article 26 and held those rights would be subject  

to the provisions that were placed under Article 19(6) and  

26(a) and the rights of minority to establish and administer  

educational institutions under Article 30 was also upheld.   

21.  Unni Krishnan scheme was held unconstitutional,  

but it was ordered that there should be no capitation fee or  

profiteering and reasonable surplus to meet the cost of  

expansion and augmentation of facilities would not mean  

profiteering.  Further, it was also ordered that the expression  

“education” in all the Articles of the Constitution would mean  

and include education at all levels, from primary education  

level up to post graduate level and the expression  

“educational institutions”  would mean institutions that  

impart education as understood in the Constitution.

22.   Pai Foundation has also recognised that the  

expression “occupation”  in Article 19(1)(g) is an activity of a  

person undertaken as a means of livelihood or a mission in  

life and hence charitable in nature and that establishing and

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running an educational institution is an occupation, and in  

that process a reasonable revenue surplus can be generated  

for the purpose of development of education and expansion of  

the institutions.  The right to establish and administer  

educational institutions, according to Pai Foundation,  

comprises right to admit students, set up a reasonable fee  

structure, constitute a governing body, appoint staff, teaching  

and non-teaching and to take disciplinary action.  So far as  

private unaided 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

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institutions in the interest of general public was also  

emphasised by the Court by ensuring autonomy and non-

regulation in the school administration, admission of  

students and fee to be charged.  Pai Foundation rejected the  

view that if a private school is allowed to charge fee  

commensurate with the fee affordable, the degrees would be  

purchasable as unfounded since the standards of education  

can be and are controllable through recognition, affiliation  

and common final examination.  Casting burden on other  

students to pay for the education of others was also  

disapproved by Pai Foundation holding that there should be  

no cross-subsidy.

23.    Pai Foundation has also dealt with the case of  

private aided professional institutions, minority and non-

minority, and also other aided institutions and stated that  

once aid is granted to a private professional educational  

institution, the government or the state agency, as a  

condition of the grant of aid, can put fetters on the freedom in  

the matter of administration and management of the  

institution.   Pai Foundation also acknowledged that there  

are large number of educational institutions, like schools and  

non-professional colleges, which cannot operate without the

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support of aid from the state and the Government in such  

cases, would be entitled to make regulations relating to the  

terms and conditions of employment of the teaching and non-

teaching staff.  In other words, autonomy in private aided  

institutions would be less than that of unaided institutions.   

24.   Pai Foundation also acknowledged the rights of the  

religious and linguistic minorities to establish and administer  

educational institutions of their choice under Article 30(1) of  

the Constitution and held that right is not absolute as to  

prevent the government from making any regulation  

whatsoever.  The Court further held that as in the case of a  

majority run institution, the moment a minority institution  

obtains a grant or aid, Article 28 of the Constitution comes  

into play.

25.  Pai Foundation further held that the ratio laid down  

in St. Stephen is not correct and held that even if it is  

possible to fill up all the seats with students of the minority  

group, the moment the institution is granted aid, the  

institution will have to admit students of the non-minority  

group to a reasonable extent, whereby the character of the  

institution is not annihilated, and at the same time, the rights  

of the citizen engrafted under Article 29(2) are not subverted.

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The judgment in Pai Foundation was pronounced on  

31.10.2002, 25.11.2002 and Article 21A, new Article 45 and  

Article 51A(k) were inserted in the Constitution on  

12.12.2002, but the basis for the introduction of Article 21A  

and the deletion of original clause (3) from Article 21A, was  

due to the judgment of Unnikrishnan.  Parliament, it may be  

noted, was presumed to be aware of the judgment in Pai  

Foundation, 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-

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minorities. The five Judges’  Bench rendered its judgment on  

14.8.2003 titled Islamic Academy of Education and  

another v. State of Karnataka and others [(2003) 6 SCC  

697].   Unfortunately, Islamic Academy created more  

problems and confusion than solutions and, in order to steer  

clear from that predicament, a seven Judges Bench was  

constituted and the following specific questions were referred  

for its determination:

“(1) To what extent the State can regulate the  admissions made by unaided (minority or non-  minority) educational institutions? Can     the     State    enforce     its     policy     of     reservation     and/or     appropriate    to     itself     any     quota     in     admissions     to     such    institutions?

(emphasis supplied) (2) Whether unaided (minority and non-

minority) educational institutions are free to devise  their own admission procedure or whether direction  made in Islamic     Academy   for compulsorily holding  entrance test by the State or association of  institutions and to choose therefrom the students  entitled to admission in such institutions, can be  sustained in light of the law laid down in Pai  Foundation?

(3) Whether Islamic     Academy   could have  issued guidelines in the matter of regulating the fee  payable by the students to the educational  institutions?

(4) Can the admission procedure and fee  structure be regulated or taken over by the  Committees ordered to be constituted by Islamic  Academy?”

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27.    Above mentioned questions were answered in P.A.  

Inamdar and others v. State of Maharashtra and others  

[(2005) 6 SCC 537] and the Court cleared all confusion and  

doubts, particularly insofar as unaided minority and non-

minority educational institutions are concerned.  

28.    Inamdar specifically examined the inter-relationship  

between Articles 19(1)(g), 29(2) and 30(1) of the Constitution  

and held that the right to establish an educational institution  

(which evidently includes schools as well) for charity or a  

profit,  being an occupation, is protected by Article 19(1)(g)  

with additional protection to minority communities under  

Article 30(1).  Inamdar, however, reiterated the fact that,  

once aided, the autonomy conferred by protection of Article  

30(1) is diluted, as the provisions of Articles 29(2) will be  

attracted and certain conditions in the nature of regulations  

can legitimately accompany the State aid.  Reasonable  

restrictions pointed out by Inamdar may be indicated on the  

following subjects: (i) the professional or technical  

qualifications necessary for practicing any profession or  

carrying on any occupation, trade or business; (ii) the  

carrying on by the State, or by a corporation owned or  

controlled by the State of any trade, business, industry or

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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     of     unaided     educational     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. Such institutions would be those  where instructions are imparted for the sake of  instructions and learning is only for the sake of  learning and acquiring knowledge. Obviously, such  institutions would fall in the category of those who  would exercise their right under the protection and  privilege conferred by Article 30(1) “to their hearts'  content”  unhampered by any restrictions excepting  those which are in     national     interest     based     on    considerations     such     as     public     safety,     national    security     and     national     integrity     or     are     aimed     at   

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preventing     exploitation     of     students     or     the     teaching    community. Such institutions cannot indulge in any  activity which is violative of any law of the land.

120. They are free to admit all students of their  own minority community if they so choose to do.  (Para 145, Pai Foundation)

(ii) Minority unaided educational  institutions asking for affiliation or  recognition  

121. Affiliation or recognition by the State or  the Board or the university competent to do so,  cannot be denied solely on the ground that the  institution is a minority educational institution.  However, the urge or need for affiliation or  recognition brings in the concept of regulation by  way of laying down conditions consistent with the  requirement of ensuring merit, excellence of  education and preventing maladministration. For  example, provisions can be made indicating the  quality of the teachers by prescribing the minimum  qualifications that they must possess and the  courses of studies and curricula. The existence of  infrastructure sufficient for its growth can be  stipulated as a prerequisite to the grant of  recognition or affiliation. However, there cannot be  interference in the day-to-day administration. The  essential     ingredients     of     the     management,     including    admission     of     students,     recruiting     of     staff     and     the    quantum     of     fee     to     be     charged,     cannot     be     regulated  .  (Para 55, Pai Foundation)

122. Apart from the generalised position of law  that the right to administer does not include the  right to maladminister, an additional source of  power to regulate by enacting conditions  accompanying affiliation or recognition exists. A  balance has to be struck between the two  objectives: (i) that of ensuring the standard of

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excellence of the institution, and (ii) that of  preserving the right of the minority to establish and  administer its educational institution. Subject to a  reconciliation of the two objectives, any regulation  accompanying affiliation or 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 as appropriation of quota by the  State and enforcement of its reservation policy is  concerned, we do not see much of a difference  between non-minority and minority unaided  educational institutions. We     find     great     force     in     the    submission     made     on     behalf     of     the     petitioners     that    the     States     have     no     power     to     insist     on     seat-sharing    in     unaided     private     professional     educational    institutions     by     fixing     a     quota     of     seats     between     the    management     and     the     State.   The State cannot insist  on private educational institutions which receive no  aid from the State to implement the State's policy

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on reservation for granting admission on lesser  percentage of marks i.e. on any criterion except  merit.

125. As per our understanding, neither in the  judgment of Pai Foundation nor in the Constitution  Bench decision in Kerala Education Bill which was  approved by Pai Foundation is     there     anything     which    would     allow     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.     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.”   (emphasis  supplied)

Pai Foundation, it was pointed out by Inamdar, merely  

permitted the unaided private institutions to maintain merit  

as the criterion of admission by voluntarily agreeing for seat

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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 procedure  

and to check exploitation of the students by charging  

exorbitant money or capitation fees.  Inamdar  ,     disapproved    

the     scheme     evolved     in     Islamic     Academy     to     the     extent     it   

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allowed     States     to     fix     quota     for     seat     sharing     between    

management     and     the     States     on     the     basis     of     local     needs     of    

each     State,     in     the     unaided     private     educational     institutions     of    

both     minority     and     non-minority     categories.      Inamdar     held    

that     to     admit     students     being     one     of     the     components     of     right    

to     establish     and     administer     an     institution,     the     State     cannot    

interfere     therewith     and     upto     the     level     of     undergraduate    

education,     the     minority     unaided     educational     institutions    

enjoy   “  total     freedom  ”  .  Inamdar emphasised the fact that  

minority unaided institutions can legitimately claim  

“unfettered fundamental right”  to choose the students to be  

allowed admissions and the procedure therefore subject to its  

being fair, transparent and non-exploitative and the same  

principle applies to non-minority unaided institutions as  

well.  Inamdar also found foul with the judgment in Islamic  

with regard to the fixation of quota and for seat sharing  

between the management and the State on the basis of local  

needs of each State in unaided private educational  

institutions, both minority and non-minority.  Inamdar  

noticed that Pai Foundation also found foul with the  

judgment in Unni Krishnan and held that admission of  

students in unaided minority educational

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institutions/schools where scope for merit based is  

practically nil cannot be regulated by the State or University  

except for providing the qualification and minimum condition  

of eligibility in the interest of academic standards.   

30.    Pai Foundation as well as Inamdar took the view  

that laws of the land including rules and regulations must  

apply equally to majority as well as minority institutions and  

minority institutions must be allowed to do what majority  

institutions are allowed to do.   Pai Foundation  examined  

the expression “general laws of the land”  in juxtaposition  

with “national interest”  and stated in Para 136 of the  

judgment that general laws of land applicable to all persons  

have been held to be applicable to the minority institutions  

also, for example, laws relating to taxation, sanitation, social  

welfare, economic regulations, public order and morality.

31.   While examining the scope of Article 30, this fact was  

specifically referred to in 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

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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 the meaning of Article 19(6) of  

the Constitution since they have unfettered fundamental  

right and total freedom to run those institutions subject to  

the law relating to taxation, sanitation, social welfare,  

economic legislation, public order and morality.

33.   Pai Foundation was examining the correctness of  

the ratio in Unni Krishnan, which I have already pointed

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out, was the basis for the insertion of Article 21A and the  

deletion of clause (3) of the proposed Article 21A.  Inamdar  

also noticed that Pai Foundation had struck down ratio of  

Unni Krishnan which invaded the rights of unaided  

educational institutions by framing a scheme.  Article 21A  

envisaged a suitable legislation so as to achieve the object of  

free and compulsory education to children of the age 6 to 14  

years and imposed obligation on the State, and not on  

unaided educational institutions.  

34.    Parliament, in its wisdom, brought in a new  

legislation Right to Education Act to provide free and  

compulsory education to children of the age 6 to 14 years, to  

discharge the constitutional obligation of the State, as  

envisaged under Article 21A.  Provisions have also been made  

in the Act to cast the burden on the non-state actors as well,  

to achieve the goal of Universal Elementary Education. The  

statement of objects and reasons of the Bill reads as follows:

“4. The proposed legislation is anchored in the  belief that the values of equality, social justice and  democracy and the creation of a just and humane  society can be achieved only through provision of  inclusive 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

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Governments, but also of schools which are not  dependent on Government funds.”

35.     The Bill was introduced in the Rajya Sabha which  

passed the Bill on 20.7.2009 and in Lok Sabha on 4.8.2009  

and received the assent of the President on 26.8.2009 and  

was published in the Gazette of India on 27.8.2009.

36.     Learned Attorney General of India submitted that  

the values of equality, social justice and democracy and the  

creation of just and humane society can be achieved only  

through a provision of inclusive elementary education by  

admitting children belonging to disadvantaged group and  

weaker sections of the society which is not only the  

responsibility of the state and institutions supported by the  

state but also schools which are not dependent on  

government funds.  Learned Attorney General also submitted  

that the state has got an obligation and a duty to enforce the  

fundamental rights 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

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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] and In  

re. Kerala Education Bill (supra).      

37.   Learned Additional Solicitor General in her written as  

well as oral submissions stated that Article 21A must be  

considered as a stand alone provision and not subjected to  

Article 19(1)(g) and Article 30(1) of the Constitution.  Article  

19(1)(g) and Article 30(1), it was submitted, dealt with the  

subject of right to carry on occupation of establishing and  

administering educational institutions, while Article 21A  

deals exclusively with a child’s right to primary education.  

Article 21A, it was pointed out, has no saving clause which  

indicates that it is meant to be a complete, standalone clause  

on the subject matter of the right to education and is

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intended to exclude the application of Article 19(1)(g) and  

Article 30(1).   Learned Additional Solicitor General submitted  

that omission of clause (3) in the original proposed Article  

21A would indicate that the intention of the Parliament was  

to apply the mandate of Article 21A to all the educational  

institutions, public or private, aided or unaided, minority or  

non-minority.    

38.    Mrs. Menaka Guruswamy and Mrs. Jayna Kothari,  

appearing for the intervener namely The Azim Premji  

Foundation, in I.A. No. 7 in W.P. (C) No. 95/2010, apart from  

other contentions, submitted that Article 21A calls for  

horizontal application of sanction on state actors so as to give  

effect to the fundamental rights guaranteed to the people.  

Learned counsels submitted that Sections 15(2), 17, 18, 23  

and 24 of the Constitution expressly impose constitutional  

obligations on non-state actors and incorporate the notion of  

horizontal application of rights.   Reference was also made to  

the judgment of this Court in People’s Union for  

Democratic Rights and Others v. Union of India and  

Others [(1982) 3 SCC 235] and submitted that many of the  

fundamental rights enacted in Part III, such as Articles 17, 23  

and 24, among others, would operate not only against the

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State but also against other private persons.   Reference was  

also made to the judgment of this Court Vishaka and  

Others v. State of Rajasthan [(1997) 6 SCC 241], in which  

this Court held that all employees, both public and private,  

would take positive steps not to infringe the fundamental  

rights guaranteed to female employees under Articles 14, 15,  

21 and 19(1)(g) of the Constitution.  Reference was also made  

to Article 15(3) and submitted that the Constitution permits  

the State to make special provisions regarding children.  

Further, it was also contended that Articles 21A and 15(3)  

provide the State with 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.

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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 neighbourhood against their wish  

and in violation of the rights guaranteed under the  

Constitution.  Learned senior counsel submitted that since  

no constitutional obligation is cast on the private educational  

institutions under Article 21A, the State cannot through a  

legislation transfer its constitutional obligation on the private  

educational institutions.  Article 21A, it was contended, is not  

subject to any limitation or qualification so as to offload the  

responsibility of the State on the private educational  

institutions so as to abridge the fundamental rights  

guaranteed to them under Article 19(1)(g), Article 26(a),  

Article 29(1) and Article 30(1) of the Constitution.   

40.    Learned senior counsel submitted that Article 21A is  

not meant to deprive the above mentioned core rights  

guaranteed to the petitioners and if the impugned provisions  

of the Act do so, to that extent, they may be declared

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unconstitutional.  Learned senior counsel submitted that the  

“core individual rights” always have universal dimension and  

thus represent universal value while “socio-economic rights”  

envisaged the sectional interest and the core individual right,  

because of its universal nature, promote political equality and  

human dignity and hence must promote precedence over the  

socio-economic rights.  Learned senior counsel also  

submitted that constitutional concept and the constitutional  

interpretation given by Pai Foundation and Inamdar cannot  

be undone by legislation.  Learned counsel also submitted  

that the concept of social inclusiveness has to be achieved  

not by abridging or depriving the fundamental rights  

guaranteed to the citizens who have established and are  

administering their institutions without any aid or grant but  

investing their own capital.  The principles stated in Part IV of  

the Constitution and the obligation cast on the State under  

Article 21A, it was contended, are to be progressively  

achieved and realised by the State and not by non-state  

actors and they are only expected to voluntarily support the  

efforts of the state.

41.   Shri T.R. Andhyarujina, learned senior counsel  

appearing for some of the minority institutions submitted

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that the object of Articles 25 to 30 of the Constitution is to  

preserve the rights of religious and linguistic minorities and  

to place them on a secure pedestal and withdraw them from  

the vicissitudes of political controversy.   Learned senior  

counsel submitted that the very purpose of incorporating  

those rights in Part-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

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child belonging to minority community for free and  

compulsory education in an educational institution  

established and administered by the minority community for  

their own children and such a constitutionally guaranteed  

right cannot be taken away or abridged by law.

PART     II   

Article     21A     and     RTE     Act   

42.  Right to education, so far as children of the age 6 to  

14 years are concerned, has been elevated to the status of  

fundamental right under Article 21A and a corresponding  

obligation has been cast on the State, but through Sections  

12(1)(b) and 12(1)(c) of the Act the constitutional obligation of  

the State is sought to be passed on to private educational  

institutions on the principle of social inclusiveness.  Right to  

Education has now been declared as a fundamental right of  

children of the age 6 to 14 years and other comparable rights  

or even superior rights like the Right to food, healthcare,  

nutrition, drinking water, employment, housing, medical care  

may also get the status of fundamental rights, which may be  

on the anvil.   Right guaranteed to children under Article 21A  

is a socio-economic right and the Act was enacted to fulfil  

that right.  Let us now examine how these rights have been

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recognized and given effect to under our Constitution and in  

other countries.

43.   Rights traditionally have been divided into civil rights,  

political rights and socio-economic rights; the former rights  

are often called the first generation rights and the latter, the  

second generation rights.  First generation rights have also  

been described as negative rights because they impose a duty  

and restraint on the state and generally no positive duties  

flow from them with some exceptions.  Over lapping of both  

the rights are not uncommon.  It is puerile to think that the  

former rights can be realised in isolation of the latter or that  

one overrides the others.

44.   Socio-economic rights generally serve as a vehicle for  

facilitating the values of equality, social justice and  

democracy and the state is a key player in securing that goal.  

The preamble of the Indian Constitution, fundamental rights  

in Part III and the Directive Principles of State Policy in Part  

IV are often called and described as “conscience of the  

Constitution”  and they reflect our civil, political and socio-

economic rights which we have to protect for a just and  

humane society.   

45.  Supreme Court through various judicial

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pronouncements has made considerable headway in the  

realization of socio-economic rights and made them  

justiciable despite the fact that 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

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42], this Court held that the right to life meant a right to a  

meaningful life, which is not possible without having right to  

healthcare.   This Court while dealing with the right to  

healthcare of persons working in the asbestos industry read  

the provisions of Articles 39, 41 and 43 into Article 21. In  

Paschim Banga Khet Majdoor Samity and Others v.  

State of West Bengal and Another [(1996) 4 SCC 37], this  

Court not only declared Right to health as a Fundamental  

Right but enforced that right by asking the State to pay  

compensation for the loss suffered and also to formulate a  

blue-print for primary health care with particular reference to  

the treatment of patients during emergency.  A note of  

caution was however struck in State of Punjab and Others  

v. Ram Lubhaya Bagga and Others [(1998) 4 SCC 117]  

stating that no State or country can have unlimited resources  

to spend on any of its projects and the same holds good for  

providing medical facilities to citizens.  In Social Jurist, A  

Lawyers Group v. Government Of NCT Of Delhi and  

Others [(140) 2007 DLT 698], a Division Bench of Delhi High  

Court, of which one of us, Justice Swatanter Kumar was a  

party, held that the wider interpretations given to Article 21  

read with Article 47 of the Constitution of India are not only

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meant for the State but they are equally true for all, who are  

placed at an advantageous situation because of the help or  

allotment of vital assets.   Dharamshila Hospital &  

Research Centre v. Social Jurist & Ors.; SLP (C)  

No.18599 of 2007 decided on 25.07.2011 filed against the  

judgment was dismissed by this Court directing that  

petitioners’  hospitals to provide medical care to a specified  

percentage of poor patients since some of the private  

hospitals are situated on lands belonging to the State or  

getting other concessions from the State.  

47.   Right to shelter or housing is also recognized as a  

socio-economic right which finds its expression in Article 11  

of the ICESCR but finds no place in Part-III or Part-IV of our  

Constitution.  However, this right has been recognized by this  

Court in several judgments by giving a wider meaning to  

Article 21 of the Constitution. In Olga Tellis and Others v.  

Bombay Municipal Corporation and Others [(1985) 3 SCC  

545], this Court was considering the claims of evictees  from  

their slums and pavement dwellings on the plea of  

deprivation of right to livelihood and right to life.  Their claim  

was not fully accepted by this Court holding that no one has

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the right to use a public property for private purpose without  

requisite authorization and held that it is erroneous to  

contend that pavement dwellers have the right to encroach  

upon the pavements by constructing 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.  Socio-

economic 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 has a right to encroach and erect structures otherwise

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on foot-paths, pavements or public streets.  The Court has  

however opined that the State has the constitutional duty to  

provide adequate facilities and opportunities by distributing  

its wealth and resources for settlement of life and erection of  

shelter over their heads to make the right to life meaningful.

48.   Right to work does not oblige the State to provide  

work for livelihood which has also been not recognized as a  

fundamental right.  Mahatma Gandhi National Rural  

Employment Guarantee Act, 2005 (Act 42 of 2005)  

guarantees at least 100 days of work in every financial year to  

every household whose adult members volunteer manual  

work on payment of minimum wages.  Article 41 of the  

Constitution provides that State shall, within the limits of its  

economic capacity and development, make effective provision  

for securing the right to work, to education and to public  

assistance in cases of unemployment, old age, sickness and  

disablement, which right is also reflected in Article 6 of  

ICESCR.  Article 38 of Part-IV states that the State shall  

strive to promote the welfare of the people and Article 43  

states that it shall endeavour to secure a living wage and a  

decent standard of life to all workers.  In Bandhua Mukti

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Morcha v. Union of India and Others [(1984) 3 SCC 161], a  

Public Interest Litigation, an NGO highlighted the deplorable  

condition of bonded labourers in a quarry in Haryana.  It was  

pointed out that a host of protective and welfare oriented  

labour legislations, including Bonded Labour (Abolition) Act,  

1976 and the Minimum Wages Act, 1948were not followed.  

This Court gave various directions to the State Government to  

enable it to discharge its constitutional obligation towards  

bonded labourers.  This Court held that right to live with  

human dignity enshrined in Article 21 derives its life breath  

from the Directive Principles of State Policy, particularly  

clauses (e) and (f) of Article 39 and Articles 41 and 42 and  

held that it must include protection of the health and  

strength of workers, men and women and of the tender age of  

children against abuse, opportunities and facilities for  

children to develop in a healthy manner and in conditions of  

freedom and dignity, educational facilities, just and humane  

conditions of work and maternity relief.

49.    The Constitutional Court of South Africa rendered  

several path-breaking judgments in relation to socio-

economic rights. Soobramoney v. Minister of Health

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(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 socio-

economic right.  Petitioner was denied dialysis by a local  

hospital on the basis of a prioritization policy based on  

limited resources.  The Court emphasised that the  

responsibility of fixing the health care budget and deciding  

priorities lay with political organization and medical  

authorities, 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 to housing on the part of the litigants, but ruled that  

the State is obliged to implement a reasonable policy for those

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who are destitute.  The Court, however, limited its role to that  

of policing the policy making process rather than recognizing  

an enforceable individual right to shelter, or defining a  

minimum core of the right to be given absolute priority.   

51.   Another notable case of socio-economic right dealt  

with by the South African Court is Minister of Health and  

others v. Treatment Action Campaign and others (TAC)  

[2002 (5) SA 721 (CC)].  The issue in that case was whether  

the state is obliged under the right of access to health care  

(Sections 27(1) and (2) of 1996 Constitution) to provide the  

anti-retroviral drug Nevirapine to HIV-positive pregnant  

women and their new born infants.  Referring the policy  

framed by the State, the Court held that the State is obliged  

to provide treatment to the patients included in the pilot  

policy.   The decision was the closest to acknowledging the  

individual’s enforceable right.   

52.   In Ex parte Chairperson of the Constitutional  

Assembly: in re Certification of the Constitution of the  

Republic of South Africa [1996 (4) SA 744 (CC)], the Court  

made it clear that socio-economic rights may be negatively  

protected from improper invasion, breach of the obligation,

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occurs directly when there is a failure to respect the right or  

indirectly when there is a failure to prevent the direct  

entrenchment of the right of another, or a failure to respect  

the existing protection of the right, by taking measures that  

diminish the protection of private parties obligation, is not to  

interfere with or diminish the enjoyment of the right  

constitutionally protected.   Equally important, in enjoyment  

of that right, the beneficiary shall also not obstruct, destroy,  

or make an inroad on the right guaranteed to others like non-

state actors.   

53.   Few of the other notable South African Constitutional  

Court judgments are: Minister of Public Works and others  

v. Kyalami Ridge Environmental Association and others  

[2001 (7) BCLR 652 (CC)] and President of the Republic of  

South Africa v. Modderklip Boerdery (Pty). Ltd. [2005 (5)  

SA 3 (CC)].

54.    South African Constitution, unlike many other  

constitutions of the world, has included socio-economic  

rights, health services, food, water, social security and  

education in the Constitution to enable it to serve as an  

instrument of principled social transformation enabling

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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 Balle  

Bermudez v. Ministry of Health and Social Action - Case  

No.15.789 Decision No.916 (1999); the Court considered

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whether those with HIV/AIDS had the right to receive the  

necessary medicines without charge and identifying a positive  

duty of prevention at the core of the right to health, it ordered  

the Ministry to conduct an effective study into the minimum  

needs of those with HIV/AIDS to be presented for  

consideration in the Government’s next budget. Reference  

may also be made a judgment of the Canadian Constitution  

Court in Wilson v. Medical Services Commission of  

British Columbia [(53) D.L.R. (4th) 171].

57.    I have referred to the rulings of India and other  

countries to impress upon the fact that even in the  

jurisdictions where socio-economic rights have been given the  

status of constitutional rights, those rights are available only  

against State and not against private state actors, like the  

private schools, private hospitals etc., unless they get aid,  

grant or other concession from the State.   Equally important  

principle is that in enjoyment of those socio-economic rights,  

the beneficiaries should not make an inroad into the rights  

guaranteed to other citizens.

REMOVAL     OF     OBSTACLES     TO     ACHIEVE     SOCIO-   ECONOMIC     RIGHTS  

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58.   Socio-economic rights, I have already indicated, be  

realized only against the State and the Statute enacted to  

protect socio-economic rights is always subject to the rights  

guaranteed to other non-state actors under Articles 19(1)(g),  

30(1), 15(1), 16(1) etc.   Parliament has faced many obstacles  

in fully realizing the socio-economic rights enshrined in Part  

IV of the Constitution and the fundamental rights guaranteed  

to other citizens were often found to be the obstacles.  

Parliament has on several occasions imposed limitations on  

the enjoyment of the rights guaranteed under Part III of the  

Constitution, through constitutional amendments.

59.    Parliament, in order to give effect to Article 39 and to  

remove the obstacle for realization of socio-economic rights,  

inserted Article 31A vide Constitution (First Amendment) Act,  

1951 and later amended by the Constitution (Fourth  

Amendment) Act, 1955 and both the amendments were given  

retrospective effect from the commencement of the  

Constitution.  The purpose of the first amendment was to  

eliminate all litigations challenging the validity of legislation  

for the abolition of proprietary and intermediary interests in  

land on the ground of contravention of the provisions of

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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 14 and 19 of the  

Constitution.  

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62.    I have referred to Articles 31A to 31C only to point  

out how the laws giving effect to the policy of the State  

towards securing all or any of the principles laid down in  

Part-IV stood saved from the challenge on the ground of  

violation or infraction of the fundamental rights contained in  

Articles 14 and 19.  The object and purpose of those  

constitutional provisions is to remove the obstacles which  

stood in the way of enforcing socio-economic rights  

incorporated in Part-IV of the Constitution and also to secure  

certain rights, guaranteed under Part III of the Constitution.

63.    Rights guaranteed under Article 19(1)(g) can also be  

restricted or curtailed in the interest of general public  

imposing reasonable restrictions on the exercise of rights  

conferred under Article 19(1)(g).  Laws can be enacted so as  

to impose regulations in the interest of public health, to  

prevent black marketing of essential commodities, fixing  

minimum wages and various social security legislations etc.,  

which all intended to achieve socio-economic justice.  Interest  

of general public, it may be noted, is a comprehensive  

expression comprising several issues which affect public  

welfare, public convenience, public order, health, morality,

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safety etc. all intended to achieve socio-economic justice for  

the people.

64.    The law is however well settled that the State cannot  

travel beyond the contours of Clauses (2) to (6) of Article 19 of  

the Constitution in curbing the fundamental rights  

guaranteed by Clause (1), since the Article guarantees an  

absolute and unconditional right, subject only to reasonable  

restrictions.  The grounds specified in clauses (2) to (6) are  

exhaustive and are to be strictly construed.  The Court, it  

may be noted, is not concerned with the necessity of the  

impugned legislation or the wisdom of the policy underlying  

it, but only whether the restriction is in excess of the  

requirement, and whether the law has over-stepped the  

Constitutional limitations.  Right guaranteed under Article  

19(1)(g), it may be noted, can be burdened by constitutional  

limitations like sub-clauses (i) to (ii) to Clause (6).

65.    Article 19(6)(i) enables the State to make law relating  

to professional or technical qualifications necessary for  

practicing any profession or to carry on any occupation, trade  

or business.  Such laws can prevent unlicensed, uncertified  

medical practitioners from jeopardizing life and health of

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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 sub-

clauses (i) and (ii) of Article 19(6) to impress upon the fact  

that it is possible to amend the said Article so that socio-

economic rights could be realized by carving out necessary  

constitutional limitations abrogating or abridging the right  

guaranteed under Article 19(1)(g).

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67.    Constitutional amendments have also been made to  

Articles 15 and 16 so as to achieve socio-economic justice.  

Articles 15 and 16 give power to the State to make positive  

discrimination in favour of the disadvantaged and  

particularly, persons belonging to Scheduled Castes and  

Scheduled Tribes.  Socio-economic empowerment secures  

them dignity of person and equality of status, the object is to  

achieve socio-economic equality.     

68.   Faced with many obstacles to achieve the above  

objectives and the Directive Principles of the State Policy,  

Articles 15 and 16 of the Constitution had to be amended on  

several occasions so as to get over the obstacles in achieving  

the socio-economic justice.  In State of Madras v. Shrimati  

Champakam Dorairajan [(1951) 2 SCR 525], this Court laid  

down the law that Article 29(2) was not controlled by Article  

46 of the Directive Principles of the State Policy and that the  

Constitution did not intend to protect the interest of the  

backward classes in the matter of admission to educational  

institutions.   In order to set right the law and to achieve  

social justice, Clause (4) was added to Article 15 by the  

Constitutional (First Amendment) Act, 1951 enabling the

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State to make special provision for the advancement of any  

socially and educationally backward classes of citizens or for  

the Scheduled Castes and Scheduled Tribes.   The object of  

Clause (4) was to bring Articles 15 and 29 in line with Articles  

16(4), 46 and 340 of the Constitution, so as to make it  

constitutional for the State to reserve seats for backward  

classes citizens, Scheduled Castes and Scheduled Tribes in  

the public educational institutions, as well as to make special  

provisions, as may be necessary, for the advancement, e.g. to  

provide housing accommodation for such classes.   In other  

words, Article 15(4) enables the State to do what would  

otherwise have been unconstitutional.  Article 15(4) has to be  

read as a proviso or an exception to Article 29(2) and if any  

provision is defined by the provisions of Article 15(4), its  

validity cannot be questioned on the ground that it violates  

Article 29(2).  Under Article 15(4), the State is entitled to  

reserve a minimum number of seats for members of the  

backward classes, notwithstanding Article 29(2) and the  

obstacle created under Article 29(2) has been removed by  

inserting Article 15(4).   

69.   The Parliament noticed that the provisions of Article  

15(4) and the policy of reservation could not be imposed by

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the State nor any quota or percentage of admission be carved  

out to be appropriated by the State in minority or non-

minority unaided educational institution, since the law was  

clearly declared in Pai Foundation and 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 backward classes  

of citizens i.e. OBCs, Scheduled Castes and Scheduled Tribes  

and the weaker sections of the society by securing admission  

in unaided educational institutions and other minority  

educational institutions referred to in Clause (1) of Article 30

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of the Constitution.   

70.    The Parliament has, therefore, removed the obstacles  

created by the law as ruled by the Court in Pai Foundation  

and Inamdar so as to carry out the obligation under the  

Directive Principles of the State Policy laid down under Article  

46.  Later, the Parliament enacted the Central Educational  

Institutions (Reservation and Admission) Act, 2006 (for short  

‘the CEI Act’), but the Act never intended to give effect to the  

mandate of the newly introduced Clause (5) to Article 15  

dealing with admissions in both aided and unaided private  

educational institutions.   

71.    Constitutional validity of Clause (5) to Article 15 and  

the CEI Act came up for consideration before a Constitutional  

Bench of this Court in Ashoka Kumar Thakur v. Union of  

India and Others [(2008) 6 SCC 1].   CEI Act was enacted by  

the Parliament under Article 15(5), for greater access to  

higher education providing for 27 per cent reservation for  

“Other Backward Classes”  to the Central Government  

controlled educational institutions, but not on privately  

managed educational institutions.   Constitutional validity of  

Article 15(5) was challenged stating that it had violated the

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basic structure doctrine.   The majority of the Judges in  

Ashok Kumar Thakur’s case declined to pronounce on the  

question whether the application of Article 15(5) to private  

unaided institutions violated the basic structure of the  

Constitution, in my view, rightly because that issue did not  

arise for consideration in that case.  Justice Dalveer  

Bhandari, however, examined the validity of Article 15(5) with  

respect to private unaided institutions and held that an  

imposition of reservation of that sort would violate Article  

19(1)(g) and thus the basic structure doctrine.   Article 19(1)

(g), as such, it may be pointed out, is not a facet of the basic  

structure of the Constitution, and can be constitutionally  

limited in its operation, with due respect, Justice Bhandari  

has overlooked this vital fact.   Pai Foundation as well as  

Inamdar held that Article 19(1)(g) prevents the State from  

creating reservation quotas or policy in private unaided  

professional educational institutions and, as indicated earlier,  

it was to get over that obstacle that Clause (5) was inserted in  

Article 15.  In Ashok Kumar Thakur, the majority held that  

Clause (5) to Article 15 though, moderately abridges or alters  

the equality principle or the principles under Article 19(1)(g),  

insofar as it dealt with State maintained and aided

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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  

structure of the Constitution.    The Court proceeded on the  

basis that Army Medical College is a private non-minority,  

unaided professional institution.  Facts indicate that the  

College was established on a land extending to approximately  

25 acres, leased out by the Ministry of Defence, Government  

of India for a period of 30 years extendable to 99 years.

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Ministry of Defence also offered various facilities like  

providing clinical training at Army Hospital, NCT, Delhi and  

also access to the general hospitality.  The constitutional  

validity of Article 15(5) was upheld holding that Clause (5) of  

Article 15 did not violate the basic structure of the  

Constitution.  While reaching that conclusion, Court also  

examined the ratio in Pai Foundation as well as in  

Inamdar.  Some of the findings recorded in Medical  

Association case, on the ratio of Pai Foundation and  

Inamdar, in my view, cannot be sustained.   

73.    Medical Association case, it is seen, gives a new  

dimension to the expression “much of difference”  which  

appears in paragraph 124, page 601 of Inamdar. Learned  

Judges in Medical Association case concluded in Para 80 of  

that judgment that the expression “much of a difference”  

gives a clue that there is an “actual difference”  between the  

rights of the minority unaided institutions under clause (1) of  

Article 30 and the rights of non-minority unaided institutions  

under sub-clause (g) of Clause (1) of Article 19.  Let us refer  

to paragraph 124 of Inamdar to understand in which context  

the expression “much of difference”  was used in that

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judgment, which is extracted below:

“So     far     as     appropriation     of     quota     by     the     State    and     enforcement     of     its     reservation     policy     is    concerned,     we     do     not     see     much     of     a     difference    between non-minority and minority unaided  educational institutions.  We find great force in the  submission made on behalf of the petitioners that  the states have no power to insist on seat-sharing  in unaided private professional educational  institutions by fixing the quota of seats between the  Management and the State.”  (emphasis supplied)

Inamdar was expressing the view that so far as  

“appropriation of quota by the State” and “enforcement of its  

reservation policy”  is concerned, they do not see much of  

difference between non-minority and minority unaided  

educational institutions. Medical Association case, on the  

other hand, in my view, has gone at a tangent and gave a new  

dimension and meaning to paragraph 124 of Inamdar, which  

is evident from the following paragraph of that judgment:

“81. xxx xxx 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     of     all     the     rights     put     together,     with     a     few    differences     that     would     still     have     operational    significance; or

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(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 use of powers of  amendment in Article 368.  The Constitution  (Ninety-third Amendment) Act, 2005 was in  response to this Court’s explanation, in P.A.  Inamdar, of the ratio in T.M.A. Pai, that imposition  of reservations on non-minority unaided  educational institutions, covered by sub-clause (g)  of clause (1) of Article 19, to be unreasonable  restrictions and not covered by clause (6) of Article  19.  The purpose of the amendment was to clarify  or amend the Constitution in a manner that what  was held to be unreasonable would now be  reasonable by virtue of the constitutional status  given to such measures.”

74.    Referring     to     Pai     Foundation     case,     the     Court     also    

stated,     having     allowed     the     private     sector     into     the     field     of   

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education     including     higher     education,     it     would     be    

unreasonable,     pursuant     to     clause     (6)     of     Article     19,     for     the    

State     to     fix     the     fees     and     also     impose     reservations     on     private    

unaided     educational     institutions  .  Nevertheless, the Court  

opined that taking into consideration the width of the original  

powers under Clause (6) of Article 19, one would necessarily  

have to find the State would at least have the power to make  

amendments to resurrect some of those powers that it had  

possessed to control the access to higher education and  

achieve the goals of egalitarianism and social justice.

75.   Article 15(5), it may be noted, gives no protection to  

weaker sections of the society, except members belonging to  

Scheduled Castes/Scheduled Tribes and members of Other  

Backward Community.    

76.   Constitutional amendments carried out to Article 16  

in securing social justice may also be examined in this  

context.   Clause (1) of Article 16 guarantees equality of  

opportunity for all citizens in matters relating to employment  

or appointment to any office under the State.   Article 16(4) is  

a special provision confined to the matters of employment in  

the services under the State which states that nothing in

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Article 16(1) shall prevent the State from making any  

provision for the reservation of appointments or posts in  

favour of any backward class of citizens which is not  

adequately represented in the services under the State.  

Article 46 obliges the State to take steps for promoting the  

economic interests of the weaker sections and, in particular,  

of the Scheduled Castes and Scheduled Tribes.  The  

expression ‘weaker sections’  in Article 46 is wider than  

‘backward class’.   The backward citizens in Article 16(4) do  

not comprise of all the weaker sections of the people but only  

those which are socially, educationally and economically  

backward, and which are not adequately represented in the  

services under 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

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promotions to Scheduled Castes and Scheduled Tribes Clause  

(4A) was added to Article 16 by the Constitution (Seventy-

seventh Amendment) Act, 1995.  Consequently, the hurdle or  

obstacle which stood in the way was removed by the  

Constitutional amendment.     

78.    The scope of the above provision came up for  

consideration in Jagdish Lal and Others v. State of  

Haryana and Others [(1997) 6 SCC 538], where this Court  

held that the principle of seniority according to length of  

continuous service on a post or service will apply and that  

alone will have to be looked into for the purpose of seniority  

even though they got promotion ignoring the claim of seniors.  

It was said that reserved candidates who got promotion  

ignoring the claim of services in general category will be  

seniors and the same cannot affect the promotion of general  

candidates from the respective dates of promotion and  

general candidates remain junior in higher echelons to the  

reserved candidates.   The above position was, however,  

overruled in Ajit Singh and Others v. State of Punjab and  

Others [(1999) 7 SCC 209], wherein it was decided that the  

reserved category candidates cannot count seniority in the

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promoted category from the date of continuous officiation vis-

à-vis the general candidates who were senior to them in the  

lower category and who were later promoted.   Ajit Singh  

case was declaring the law as it stood.   Consequently, the  

Parliament, in order to give continuous appreciation in  

promotion, inserted the words “with consequential seniority”  

in Clause (4A) to Article 16 by Constitution (Eighty-fifth  

Amendment) Act, 2001 (which was made effective from  

17.6.1995).  In the light of Article 16(4A), the claims of  

Scheduled Castes and Scheduled Tribes for promotion shall  

be taken into consideration in making appointment or giving  

promotion.    

79.   Constitution (Eighty-first Amendment) Act, 2000,  

which came into effect on 9.6.2000, inserted Clause (4B) to  

Article 16, which envisaged that the unfilled reserved  

vacancies in a year to be carried forward to subsequent years  

and that these vacancies are to be treated as distinct and  

separate from the current vacancies during any year, which  

means that 50% rule is to be applied only to normal  

vacancies and not to the posts of backlog of reserved  

vacancies.   Inadequacy and representation of backward

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classes, Scheduled Castes and Scheduled Tribes are the  

circumstances which enabled the State Government to enact  

Articles 16(4), 16(4A) and 16(4B).     

80.    The constitutional validity of Article 16(4A)  

substituted by the Constitution (Eighty-fifth Amendment) Act,  

2001 came up for consideration before this Court in M.  

Nagaraj & Ors. v. Union of India [(2006) 8 SCC 212].   The  

validity of the Constitution (Seventy-seventh Amendment) Act,  

1995, the Constitution (Eighty-first Amendment) Act, 2000,  

the Constitution (Eighty-second Amendment) Act, 2000 and  

the Constitution (Eighty-fifth Amendment) Act, 2001 were  

also examined and held valid.  This Court held that they do  

not infringe either the width of the Constitution amending  

power or 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

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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 Foundation and reiterated in  

Inamdar have now been limited, restricted and curtailed so  

as to impose positive obligation on them under Section 12(1)

(c) of the Act and under Article 21A of the Constitution, which  

is permissible only through constitutional amendment.

82.   Constitutional principles laid down by Pai  

Foundation and Inamdar on Articles 19(1)(g), 29(2) and  

30(1) so far as unaided private educational institutions are  

concerned, whether minority or non-minority, cannot be  

overlooked and Article 21A, Sections 12(1)(a), (b) and 12(1)(c)  

have to be tested in the light of those constitutional principles  

laid down by Pai Foundation and Inamdar because  

Unnikrishnan was the basis for the introduction of the

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proposed Article 21A and the deletion of clause (3) from that  

Article.  Interpretation given by the courts on any provision of  

the Constitution gets inbuilt in the provisions interpreted,  

that is, Articles 19(1)(g), 29(2) and 30.

83.    We have to give due respect to the eleven Judges  

judgment in Pai Foundation and the seven Judges judgment  

in Inamdar, the principles laid down in those judgments still  

hold good and are not whittled down by Article 21A, nor any  

constitutional amendment was effected to Article 19(1)(g) or  

Article 30(1).  Article 21A, it may be noted was inserted in the  

Constitution on 12.12.2002 and the judgment in Pai  

Foundation was delivered by this Court on 31.10.2002 and  

25.11.2002.  Parliament is presumed to be aware of the law  

declared by the Constitutional Court, especially on the rights  

of the unaided non-minority and minority educational  

institutions, and in its wisdom thought if fit not to cast any  

burden on them under Article 21A, but only on the State.  

Criticism of the judgments of the Constitutional Courts has to  

be welcomed, if it is healthy.  Critics, it is seen often miss a  

point which is vital, that is, Constitutional Courts only  

interpret constitutional provisions and declare what the law  

is, and not what law ought to be, which is the function of the

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legislature.   Factually and legally, it is not correct to  

comment that many of the amendments are necessitated to  

overcome the judgments of the Constitutional Courts.  

Amendments are necessitated not to get over the judgments  

of the Constitutional Courts, but to make law constitutional.  

In other words, a law which is otherwise unconstitutional is  

rendered constitutional.  An unconstitutional 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     constitutional     provisions,     the     court     is     giving    

effect     to     the     will     of     the     people     not     due     to     any     judicial    

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

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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 requiring not merely a simple majority  but two-third majority of the Members present and  voting.  Apart from the aforesaid majority, in most  cases the amendment has to be ratified by a  majority of the States.  In these circumstances,  therefore, this Court which lays down the law of the  land under Article 141 must be extremely careful  and circumspect in interpreting statutes, more so  constitutional provisions, so to obviate the necessity  of a constitutional amendment every time which, as  we have already mentioned, is an extremely onerous  task.”   

Reference may also be made to the judgment in Bengal  

Immunity Company Limited v. State of Bihar and Others  

[AIR 1955 SC 661].

85.     In People’s Union for Civil Liberties (PUCL) and  

Anr. v. Union of India (UOI) and Anr. [2003 (4) SCC 399] in  

para 112 this Court has held “It is a settled principle of  

constitutional jurisprudence that the only way to render a  

judicial decision ineffective is to enact a valid law by way of  

amendment…….”

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86.   In Smit v. Allwright [321 U.S. 649 (1944)], the Court  

held “In constitutional questions, where correction depends  

upon amendment, and not upon legislative action, this Court  

throughout its history has freely exercised its power to re-

examine the basis of its constitutional decisions.  This has long  

been accepted practice and this practice has continued to this  

day.”  

87.   Constitutional interpretation given by this Court as to  

what the law is, led to  bringing in several amendments either  

to set right the law or abridge the constitutional rights  

guaranteed in Part III of the Constitution, some of which I  

have already referred to in the earlier part of this judgment.

88.   Principles laid down by Pai Foundation and in  

Inamdar while interpreting Articles 19(1)(g), 29(2) and 30(1)  

in respect of unaided non-minority and minority educational  

institutions like schools upto the level of under-graduation  

are all weighty and binding constitutional principles which  

cannot be undone by statutory provisions like Section 12(1)

(c), since those principles get in-built in Article 19(1)(g),  

Article 29(2) and Article 30(1) of the Constitution.  Further  

Parliament, while enacting Article 21A, never thought if fit to

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undo those principles and thought it fit to cast the burden on  

the State.

PART     III   

OBLIGATIONS/RESPONSIBILITIES     OF     NON-STATE    ACTORS     IN     REALIAZATION     OF     CHILDREN  ’  S     RIGHTS:   

89.     We may, however, also examine whether the private  

unaided educational institutions have any  

obligations/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

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(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-state actors for the progressive realization of children  

rights.  Article 6(1) of ICCPR states: “Every human being has  

the inherent right to life …  No one shall be arbitrarily  

deprived of this right”, meaning thereby that the arbitrary  

deprivation of a person’s life will be a violation of  

international human rights norm whether it is by the State or  

non-state actors.   UDHR, ICCPR, ICESCR, UNCRC and other  

related international covenants guarantee children civil,  

political, economical, social and cultural rights.   Article 4 of  

the UNCRC requires the State to undertake all appropriate  

legislative, administrative and other measures for the  

implementation of the rights recognized in the Convention.    

91.   Article 2.1 of the ICESCR, has also approved the  

above obligation of the State, which reads as follows:

“Each State Party to the present Covenant  undertakes to take steps, individually and through  international assistance and co-operation, especially  economic and technical, to the maximum of its

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available resources, with a view to achieving  progressively the full realization of the rights  recognized in the present Covenant by all  appropriate means, including particularly the  adoption of legislative measures.”

Non-state actor’s obligation is also reflected in preamble of  

ICCPR and ICESCR which is as follows:

“The individual, having duties to other  individuals and to the community to which he  belongs, is under a responsibility to strive for the  promotion and observance of the rights recognized  in the present Covenant.”

Preamble of UDHR also reads as follows:

“… every individual and every organ of society,  keeping this Declaration constantly in mind, shall  strive by teaching and education, to promote respect  for these rights and freedoms and by progressive  measures, national and international, to secure  their universal and effective recognition and  observance…”

Non-state actor’s “duty to the community”  and to the  

“individuals in particular” are accordingly highlighted.

Article 30 of UDHR highlights the necessity to protect and  

safeguard the right of others which reads as follows :-

“Nothing in this Declaration may be interpreted  as implying for any state, group or person any right  to engage in any activity or to perform any act aimed  at the destruction of any of the rights and freedoms  set forth herein.”

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92.   In this connection reference may 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  all peoples, ethnic, national and religious groups  and persons of indigenous origin; (e) The development of respect for the natural  environment.

2.    No part of the present article or article 28 shall

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be construed so as to interfere with the liberty of  individuals and bodies to establish and direct  educational institutions, subject always to the  observance of the principle set forth in paragraph 1  of the present article and to the requirements that  the education given in such institutions shall  conform to such minimum standards as may be laid  down by the State.

93.    Provisions referred to above and other provisions of  

International Conventions indicate that the rights have been  

guaranteed to the children and those rights carry  

corresponding State obligations to respect, protect and fulfill  

the realization of children’s rights.    The     obligation     to     protect    

implies     the     horizontal     right     which     casts     an     obligation     on     the    

State     to     see     that     it     is     not     violated     by     non-state     actors.     For    

non-state     actors     to     respect     children  ’  s     rights     cast     a     negative    

duty     of     non-violation     to     protect     children  ’  s     rights     and     a    

positive     duty     on     them     to     prevent     the     violation     of     children  ’  s    

rights     by     others,     and     also     to     fulfill     children  ’  s     rights     and     take    

measures     for     progressive     improvement  .    In other words, in  

the spheres of non-state activity there shall be no violation of  

children’s rights.   

94.   Article 24 of the Indian Constitution states that no  

child below the age of 14 years shall be employed to work in

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any factory or be engaged in any hazardous employment.  

The Factories Act, 1948 prohibits the employment of children  

below the age of 14 years in any factory.  Mines Act, 1952  

prohibits the employment of children below 14 years.  Child  

Labour (Prohibition and Regulation) Act, 1986 prohibits  

employment of children in certain employments.  Children  

Act, 1960 provides for the care, protection, maintenance,  

welfare, training, education and rehabilitation of neglected or  

delinquent children.  Juvenile Justice (Care and Protection of  

Children) Act, 1986 (the Amendment Act 33 of 2006) provide  

for the care, protection, development and rehabilitation of  

neglected and delinquent juveniles.  There are also other  

legislations enacted for the care and protection of children  

like Immoral Trafficking Prevention Act, 1956, Prohibition of  

Child Marriage Act, 2006 and so on.   Legislations     referred     to    

above     cast     an     obligation     on     non-state     actors     to     respect     and    

protect     children  ’  s     rights     and     not     to     impair     or     destroy     the    

rights     guaranteed     to     children,     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

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fulfill children’s rights and has also got a duty to regulate the  

private institutions that care for children, to protect children  

from violence or abuse, to protect children from economic  

exploitation, hazardous work and to ensure human treatment  

of children.   Non-state     actors     exercising     the     state     functions    

like     establishing     and     running     private     educational     institutions    

are     also     expected     to     respect     and     protect     the     rights     of     the    

child,     but     they     are,     not     expected     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 actors like unaided private educational  

institutions or to coerce them to act on the State’s dictate.  

Private educational institutions have to empower the  

children, through developing their skills, learning and other  

capacities, human dignity, self-esteem and self-confidence  

and to respect their constitutional rights.   

97.    I have in the earlier part of the judgment referred to

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Article 28(1) and Article 29 of UNCRC which cast an  

obligation on the State to progressively achieve the rights of  

children and also to make primary education compulsory and  

available free to all but all the same make it clear that no  

part of Articles 28 and 29 be construed to interfere with the  

liberty of non-state actors.  They are expected to observe the  

principles set forth in Para 1 of Article 29 and also to conform  

to such minimum standards as laid down by the state.   

98.    South African Constitution Bench in Governing  

Body of the Juma Musjid Primary School v. Minister for  

Education [[2011] ZACC 13] dealt with the interplay between  

private rights and the State’s obligation to provide right to  

education.   In that case, the Court held that the primary  

positive obligation to provide the right to education resides on  

the Government and the purpose of Section 8(2) of the  

Constitution is not to obstruct private autonomy or to impose  

on a private party the duties of the state in protecting the Bill  

of Rights.  That was a case involving balancing of proprietary  

rights of a trust seeking to evict a public school in order to  

establish an independent school.  One of the pleas raised by  

the evictees was that the evictor trust also had an obligation

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towards the right to education of the learners which it could  

not ignore.  The Constitutional Court held that the only  

obligation of a private party as regards socio-economic rights,  

like right to education, is a negative obligation i.e. not to  

unreasonably interfere with the realization of the right and  

that there is no positive obligation cast on them to protect the  

right by surrendering their rights.   

99.    Pai Foundation and Inamdar also cast a negative  

obligation on the private educational institutions in the sense  

that there shall be no profiteering, no demand of excessive  

fee, no capitation fee, no maladministration, no cross subsidy  

etc.   Further, this Court, while interdicting the State in  

appropriating seats in private educational institutions,  

restrained them from interfering with the autonomy of those  

institutions and adopted a balancing approach laying down  

the principle of voluntariness, co-operation, concession, and  

so on.   

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

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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.     Article 21A has used the expression “State shall  

provide” not “provide for” hence the constitutional obligation  

to provide education is on the State and not on non-state  

actors, the expression is clear and unambiguous and to  

interpret that expression to mean that constitutional  

obligation or responsibility is on private unaided educational  

institutions also, in my view, doing violence to the language

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of that expression. The obligation of the State to provide free  

and compulsory education is without any limitation.  

Parliament in its wisdom has not used the expression  

“provide for”.  If the preposition “for” has been used then the  

duty of the State would be only to provide education to those  

who require it but to provide for education or rather to see  

that it is provided.  In this connection it is useful to refer to  

the judgment of the Supreme Court of Ireland in Crowley v.  

Ireland [(1980) IR 102], where the expression “provide for”  

came up for interpretation.  It was held that the use of the  

preposition “for”  keeps the State at one remove from the  

actual provision of education indicating that once the State  

has made an arrangement for the provision of education –  

provided the buildings, pay teachers and set the curriculum -  

it is absolved of the responsibility when the education is not  

actually delivered.  The absence of the preposition “for”  in  

Article 21A makes the duty on the State imperative.  State  

has, therefore, to “provide”  and “not provide for”  through  

unaided private educational institutions.    

102.   Article 21A has used the expression “such manner”  

which means the manner in which the State has to discharge  

its constitutional obligation and not offloading those

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obligations on unaided educational institutions.  If the  

Constitution wanted that obligation to be shared by private  

unaided educational institutions the same would have been  

made explicit in Article 21A.  Further, unamended Article 45  

has used the expression “state shall endeavour…..for”  and  

when Article 21A was inserted, the expression used therein  

was that the “State shall provide”  and not “provide for”  the  

duty, which was directory earlier made mandatory so far as  

State is concerned.  Article 21 read with 21A, therefore, cast  

an obligation on the State and State alone.

103. The State has necessarily to meet all expenses of  

education of children of the age 6 to 14 years, which is a  

constitutional obligation under Article 21A of the  

Constitution.  Children have also got a constitutional right to  

get free and compulsory education, which right can be  

enforced against the State, since the obligation is on the  

State.  Children who opt to 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

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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 Directive Principles of State  

policy nor a constitutional obligation under Article 21A, to  

those 25% children, especially when their parents have no  

constitutional obligation.

104.       In Avinash Mehrotra v. Union of India & Others  

[{2009} 6 SCC 398], this Court held that Article 21A imposes  

a duty on the State, while Article 51A(k) places burden on the  

parents to provide free and compulsory education to the  

children of the age 6 to 14 years.  There exists a positive  

obligation on the State and a negative obligation on the non-

state actors, like private educational institutions, not to  

unreasonably interfere with the realization of the children’s

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rights and the state cannot offload their obligation on the  

private unaided educational institutions.   

105. I am, therefore, of the considered view that Article  

21A, as such, does not cast any obligation on the private  

unaided educational institutions to provide free and  

compulsory education to children of the age 6 to 14 years.  

Article 21A casts constitutional obligation on the State to  

provide free and compulsory education to children of the age  

6 to 14 years.

CONSTITUTIONALLY     IMPERMISSIBLE     PROCEDURE    ADOPTED     TO     ACHIEVE     SOCIAL     INCLUSIVENESS     UNDER    THE     ACT.   

106.      I may endorse the view that the purpose and object  

of the Act is laudable, that is, social inclusiveness in the field  

of elementary education but the means adopted to achieve  

that objective is faulty and constitutionally impermissible.  

Possibly, the object and purpose of the Act could be achieved  

by limiting or curtailing the fundamental rights guaranteed to  

the unaided non-minority and minority educational  

institutions under Article 19(1)(g) and Article 30(1) or  

imposing a positive obligation on them under Article 21A, but  

this has not been done in the instant case.  I have extensively

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dealt with the question - how the socio economic rights could  

be achieved by making suitable constitutional amendments  

in Part II of this judgment.    

107.   Sections 12(1)(b) and 12(1)(c) are vehicles through  

which the concept of social inclusiveness is sought to be  

introduced into the private schools both aided and unaided  

including minority institutions, so as to achieve the object of  

free and compulsory education of the satisfactory quality to  

the disadvantaged groups and weaker sections of the society.  

The purpose, it is pointed out, is to move towards composite  

classrooms with children from diverse backgrounds, rather  

than homogenous and exclusive schools and it was felt that  

heterogeneity in classrooms leads to greater creativity.  In  

order 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 ;

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(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 provide free and  compulsory elementary education till its  completion:

Provided further that where a school specified in  clause (n) of section 2 imparts pre-school education,  the provisions of clauses (a) to (c) shall apply for  admission to such pre-school education.

(2) The school specified in sub-clause (iv) of clause  (n) of section 2 providing free and compulsory  elementary education as specified in clause (c) of  sub-section (1) shall be reimbursed expenditure so  incurred by it to the extent of per-child expenditure  incurred by the State, or the actual amount charged  from the child, whichever is less, in such manner as  may be prescribed:

Provided that such reimbursement shall  not exceed per-child-expenditure incurred by a  school specified n sub-clause (i) of clause(n) of  section 2:

Provided further where such school is  already under obligation to provide free education to  a specified number of children on account of it

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having received any land, building, equipment or  other facilities, either free of cost or at a  concessional rate, such school shall not be entitled  for reimbursement to the extent of such obligation.

(3) Every school shall provide such  information as may be required by the appropriate  Government or the local authority, as the case may  be.

Reference may be also be made to definition clauses.

2(d) “child belonging to disadvantaged group”  means a child belonging to the Scheduled Caste,  the Scheduled Tribe, the socially and educationally  backward class or such other group having  disadvantage owing to social, cultural, economical,  geographical, linguistic, gender or such other  factor, as may be specified by the appropriate  Government, by notification;

2(e) “child belonging to weaker section”  means a  child belonging to such parent or guardian whose  annual income is lower that the minimum limit  specified by the appropriate Government, by  notification;

2(n) “school”  means any recognized school  imparting elementary education and includes –

(i) a school established, owned or controlled by  the appropriate Government or a local authority;

(ii) an aided school 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 school not receiving any kind of  aid or grants to meet its expenses from the  appropriate Government or the local authority.

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(A) Unaided     Educational     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 pre-

school, if there is one.  State also has undertaken re-

imbursement of the fees of those children to the extent of per-

child expenditure incurred by the State.

109.    Right of a citizen to establish and run an educational  

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

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cannot regulate or control admission in unaided educational  

institutions so as to compel them to give up a share of  

available seats which according to the court would amount to  

nationalization of seats and such an appropriation of seats  

would constitute serious encroachment on the right and  

autonomy of the unaided educational institutions.  Both     Pai    

Foundation     and     Inamdar     are     unanimous     in     their     view     that    

such     appropriation     of     seats     cannot     be     held     to     be     a     regulatory    

measure     in     the     interest     of     rights     of     the     unaided     minority    

educational     institutions     guaranteed     under     Article     30(1)     of     the    

Constitution     or     a     reasonable     restriction     within     the     meaning     of    

Article     19(6)     in     the     case     of     unaided     non-minority     educational    

institution.  Inamdar has also held that to admit students  

being an unfettered fundamental right, the State cannot  

make fetters upto the level of under graduate education.  

Unaided educational institutions enjoy total freedom and they  

can legitimately claim ‘unfettered fundamental rights’  to  

choose students subject to its being fair, transparent and  

non-exploitative.

110.     Section 12(1)(c) read with Section 2(n)(iv) of the Act  

never envisages any distinction between unaided minority

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schools and non-minority schools.  Constitution Benches of  

this Court have categorically held that so far as appropriation  

of quota by the State and enforcement of reservation policy is  

concerned, there is not much difference between unaided  

minority and non-minority educational institutions (Refer  

Paras 124, 125 of Inamdar).  Further, it was also held that  

both unaided minority and non-minority educational  

institutions enjoy “total freedom”  and can claim “unfettered  

fundamental rights”  in the matter of appropriation of quota  

by the State and enforcement of reservation policy.  This  

Court also held that imposition of quota or enforcing  

reservation policy are acts constituting serious encroachment  

on the right and autonomy of such institutions both minority  

(religious and linguistic) and non- minority and cannot be  

held to be a regulatory measure in the interest of minority  

within the meaning of Article 30(1) or a reasonable restriction  

within the meaning of Article 19(6) of the Constitution.  

Therefore, no distinction or difference can be drawn between  

unaided minority schools and unaided non-minority schools  

with regard to appropriation of quota by the State or its  

reservation policy under Section 12(1)(c) of the Act.

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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 and  

profiteering by the institution.  Further, it was also pointed

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out that in the establishment of an educational institution,  

the object should not be to make profit, inasmuch as  

education is essentially charitable in nature.  However, there  

can be a reasonable revenue surplus, which may be  

generated by the educational institutions for the purpose of  

development of education and their expansion.  

Consequently,     the     mere     fact     that     education     in     one     sense,     is    

regarded     as     charitable,     the     Government     cannot     appropriate    

25%     of     the     seats     of     the     unaided     private     educational    

institutions     on     the     ground     that     providing     education     is    

charity.  Pai Foundation and Inamdar after holding that  

occupation of education can be regarded as charitable held  

that the appropriation of seats in an unaided private  

educational institution would amount to nationalization of  

seats and an inroad into their autonomy.  The object and  

purpose of Section 12(1)(c), it may be noted, is not to reduce  

commercialization.  Pai Foundation and Inamdar have  

clearly denounced commercialization of education.

113.      Right to establish and administer and run a private  

unaided educational institution is the very openness of  

personal freedom and opportunity which is constitutionally

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protected, which right cannot be robbed or coerced against  

his will at the threat of non-recognition or non-affiliation.  

Right to establish a private unaided educational institution  

and to make reasonable profit is recognized by Article 19(1)(g)  

so as  to achieve economic security and stability  even if it is  

for charity.  Rights protected under Article 19(1)(g) are  

fundamental in nature, inherent and are sacred and valuable  

rights of citizens which can be abridged only to the extent  

that is necessary to ensure public peace, health, morality etc.  

and to the extent of the constitutional limitation provided in  

that Article. Reimbursement of fees at the Government rate is  

not an answer when the unaided private educational  

institutions have no constitutional obligation and their  

Constitutional rights are invaded.

114. Private unaided educational institutions are established  

with lot of capital investment, maybe with loan and  

borrowings.  To maintain high standard of education, well  

qualified and experienced teachers have to be appointed, at  

times with hefty salary.  Well equipped library, laboratory etc  

have also to be set up.  In other words considerable money by  

way of capital investment and overhead expenses would go

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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     of    

the     State     Policy     nor     Article     21A     cast     any     duty     or     obligation     on    

the     unaided     private     educational     institutions     to     provide     free    

and     compulsory     education     to     children     of     the     age     of     6     to     14  .  

Section     12(1)(c)     has,     therefore,     no     foundation     either     on     the    

Directive     Principles     of     the     State     Policy     or     Article     21A     of     the   

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Constitution, so as to rope in unaided educational  

institutions.  Directive Principles of the State Policy as well as  

Article 21A cast the constitutional obligation on the State and  

State alone.  State, cannot offload or outsource that  

Constitutional obligation to the private unaided educational  

institutions and the same can be done only by a  

constitutional provision and not by an ordinary legislation.   

116.    Articles 41, 45 and 46 of Part IV of the Constitution  

cast the duty and constitutional obligations on the State  

under Article 21A, apart from other constitutional principles  

laid down by Pai Foundation as well as Inamdar.  Section  

12(1)(c)  has neither the constitutional support of Article 21A,  

nor the support of Articles 41, 45 or 46, since those  

provisions cast duty only on the State and State alone.  The  

policies laid down under Articles 41, 45 and 46 can always be  

achieved by carrying out necessary amendment to the  

fundamental rights.  However, so far as the present case is  

concerned, Article 21A has been enacted to cast a  

constitutional obligation on the state and a duty upon the  

State under Articles 41, 45 and 46.  I have pointed out that it  

is to get over such situations and for the removal of such

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obstacles several constitutional amendments were  

necessitated which I have extensively dealt with in Part II of  

my judgment.

117.     Section 12(1)(c) seeks to achieve what cannot be  

achieved directly especially after the interpretation placed by  

Pai Foundation and Inamdar on Article 19(1)(g) and Article  

30(1) of the Constitution.  Inamdar has clearly held that  

right to set up, and administer a private unaided educational  

institution is an unfettered right, but 12(1)(c) impose fetters  

on that right which is constitutionally impermissible going by  

the principles laid down by Pai Foundation and Inamdar.  

Section 12(1)(c),  in my view, can be given effect to, only on  

the basis of principles of voluntariness and consensus laid  

down in Pai Foudnation and Inamdar or else, it may violate  

the rights guaranteed to unaided minority and non-minority  

institutions.   

118.    Constitution of India has expressly conferred the  

power of judicial review on Courts and the Legislature cannot  

disobey the constitutional mandate or the constitutional  

principle laid down by Courts under the guise of social  

inclusiveness.   Smaller inroad like Section 12(1)(c) may lead

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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 Article 19(1)(g) is a check on the  

exercise of legislative power and it is the duty of the  

constitutional court to protect the constitutional rights of the

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citizens against any encroachment, as it is often said,  

“smaller inroad may lead to larger inroad and ultimately  

resulting into nationalization or even total prohibition.”  

Section 12(1)(c), if upheld would resurrect Unni Krishnan  

scheme which was nullified by Pai Foundation and  

Inamdar.

120.      I am, therefore, of the view that so far as unaided  

educational institutions both minority and non-minority are  

concerned the obligation cast under Section 12(1)(c) is only  

directory and the said provision is accordingly read down  

holding that it is open to the private unaided educational  

institutions, both minority and non-minority, at their volition  

to admit children who belong to the weaker sections and  

disadvantaged group in the neighbourhood in their  

educational institutions as well as in pre-schools.

(B) Aided     Educational     Institutions,     minority     and     non-   minority:

121.     Section 12(1)(b) deals with the schools receiving aid  

or grants to meet whole or part of its expenses from the  

appropriate government or local authority.  Those schools are

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bound to provide free and compulsory elementary education  

to such proportion of children subject to a minimum of 25%  

depending upon its annual recurring aid or grants so  

received.  Pai Foundation has clearly drawn a distinction  

between aided private educational institutions and unaided  

private educational institutions both minority and non-

minority.  So far as private aided educational institutions,  

both minority and non-minority are concerned, it has been  

clearly held in Pai Foundation that once aid is provided to  

those institutions by the Government or any state agency, as  

a condition of grant or aid, they can put fetters on the  

freedom in the matter of administration and management of  

the institution.  Aided institutions cannot obtain the extent of  

autonomy in relation to the management and administration  

as would be available to a private unaided institution.  Pai  

Foundation after referring to St. Stephen judgment and  

Articles 29 and 30 held that even if it is possible to fill up all  

the seats with minority group the moment the institution is  

granted aid the institution will have to admit students from  

non-minority group to a reasonable extent without  

annihilating the character of the institution.  In St. Stephen  

case which I have already dealt with in the earlier paragraphs

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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 weaker section’  of the minority  

communities, religious or linguistic, who would also get the  

benefit of Section 12(1)(b) and, therefore, the contention that  

Section 12(1)(b), as such, would stand against the interest of

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the religious and linguistic minority communities is  

unfounded.    

122.     Applying the principle laid down in Pai Foundation,  

Inamdar, St. Stephen and in Re.  Kerala Education Bill, I  

am of the view that clause 12(1)(b) directing the aided  

educational institutions minority and non-minority to provide  

admission to the children of the age group of 6 to14 years  

would not affect the autonomy or the rights guaranteed under  

Article 19(1)(g) or Article 30(1) of the Constitution of India.  I,  

therefore, reject the challenge against the validity of Section  

12(1)(b) and hold that the provision is constitutionally valid.

PART     V   

123.    Private unaided educational institutions, apart from  

challenging Section 12(1)(c), have also raised various  

objections with regard to other provisions of the Act.  Learned  

senior counsels appearing for them submitted that Sections  

3, 6, 7, 8 and 9 read with Sections 4, 5 and 10 impose duties  

and obligations upon the appropriate government and local  

authority and those sections completely answer and fulfill the  

mandate contained in Article 21A as against the State.

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Section 3 recognizes the right of the child to free and  

compulsory education in a neighbourhood school.  Unaided  

educational institutions have only a negative duty of not  

interfering with the right of the child and not to unreasonably  

interfere with the realization of those rights and there is no  

obligation to surrender their rights guaranteed under Article  

19(1)(g) and Article 30(1), recognized in Pai Foundation and  

Inamdar. Children can, therefore, enforce their  

constitutional and statutory rights against the educational  

institutions run by the State, local authority qua aided  

educational institution and not against unaided minority and  

non-minority educational institutions.  It is so declared.    

124.     Petitioners have not raised any objection with regard  

to prohibition imposed under Section 13 against collecting  

the capitation fee which they are bound to follow even on the  

declaration of law, by Pai Foundation and Inamdar.  

Petitioners submitted that a fair and transparent screening  

procedure is being followed by all the schools.  So far as  

Section 14 is concerned, petitioners have submitted that  

schools always give opportunity to the child/parent to  

produce some authentic proof to ascertain the age of the

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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  

from all over the country and abroad.  School has its own  

rules and regulations.  Prohibition of holding back and  

expulsion of students in an unaided private educational

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institution depends upon the academic and disciplinary  

procedure laid down by the school and its parent body.  

Counsel, referring to Section 17 of the Act, submitted that the  

prohibition of physical punishment and mental harassment is  

a welcome provision which the schools follow.    

126.     Learned senior counsel also submitted that some of  

their schools are not affiliated or recognized by any State  

Education Board or the Board constituted by the Central  

Government or the Indian Council of Secondary Education  

etc. and those schools generally follow the rules laid down by  

the recognizing body and are, therefore, unable to fulfill the  

norms and standards specified in the schedule referred to in  

Section 19.

127.  Counsel appearing for the unaided institutions  

contended that the curriculum and evaluation procedure laid  

down by the body affiliating or recognizing the institutions  

are being followed by them and the provisions stipulated in  

Section 29(2) are generally being adhered to by their schools.  

With regard to Section 23 of the Act, counsels submitted that  

some of the unaided private educational institutions employ  

the teachers from outside the country as it encourages cross-

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fertilization of ideas and educational systems and practices  

and the qualifications provided by the institutions may not be  

as prescribed under Section 23 of the Act and the  

qualifications provided therein may not be sufficient for  

appointment as teachers in the schools affiliated to  

International Baccalaureate system.     Learned counsel  

appearing for the unaided private educational institutions  

also referred to Rules 9, 11 to 15 and 23 and explained how it  

affects their autonomy and status of their institutions.    

128.   I have extensively dealt with the contentions  

raised by the unaided private educational institutions and I  

am of the view that not only Section 12(1)(c), but rest of the  

provisions in the Act are only directory so far as those  

institutions are concerned, but they are bound by the  

declaration of law by Pai Foundation and Inamdar, like  

there shall be no profiteering, no maladministration, no  

demand for capitation fee and so on and they have to follow  

the general laws of the land like taxation, public safety,  

sanitation, morality, social welfare etc.    

129.      I may indicate that so far as the rest of the schools  

are concerned, including aided minority and non-minority

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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 constituted under  

Section 21(1) would replace the minority educational  

institution is, therefore, unfounded. [Ref. F.No.1-22009-E.E-4  

of Government of India (Annexure A-3)].

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130.    Petitioners have also raised objections against the  

restrictions imposed in following any screening procedure  

before admitting children to their schools under Sections 13  

or 14 of the Act, which according to the petitioners, takes  

away the autonomy of the institutions.  Several  

representations were received by the Ministry of Human  

Resources and Development, Government of India seeking  

clarification on that aspect and the Ministry issued a  

notification dated 23.11.2009 under Section 35(1) of the Act  

laying guidelines to be followed by both unaided and aided  

educational institutions.  It was pointed out that the object of  

the provisions of Section 13(1) read with Section 2(d) is to  

ensure that schools adopt an admission procedure which is  

non-discriminatory, rational and transparent and the schools  

do not subject children and their parents to admission tests  

and interviews so as to deny admission.  I find no infirmity in  

Section 13, which has nexus with the object sought to be  

achieved, that is access to education.

131.      Contention was also raised by them against Section  

14(2) which provides that no child shall be denied admission  

in a school for lack of age proof which, according to them, will

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cause difficulty to the management to ascertain the age of the  

child.  Section 14 stipulates that the age of a child shall be  

determined on the basis of the birth certificate issued in  

accordance with the provisions of the Birth, Death and  

Marriages Registration Act, 1986, or the other related  

documents.  The object and purpose of Section 14 is that the  

school shall not deny access to education due to lack of age  

proof.  I find no legal infirmity in that provision, considering  

the overall purpose and object of the Act.   Section 15 states  

that a child shall not be denied admission even if the child is  

seeking admission subsequent to the extended period.  A  

child who evinces an interest in pursuing education shall  

never be discouraged, so that the purpose envisaged under  

the Act could be achieved.  I find no legal infirmity in that  

provision.   

132.   Challenge was also made to Section 16 of the Act  

stating that it will lead to indiscipline and also deteriorate the  

quality of the education, which I find difficult to agree with  

looking to the object and purpose of the Act.   Holding back in  

a class or expulsion may lead to large number of drop outs  

from the school, which will defeat the very purpose and object

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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.  There is nothing  

objectionable in those provisions warranting our interference.  

Section 23, in my view, would not take away the freedom of  

aided minority educational institutions for the reasons  

already stated by us.  No infirmity is also found with regard

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to Sections 24 to 28 of the Act since the object and purpose of  

those provisions are to provide education of satisfactory  

quality so that the ultimate object of the Act would be  

achieved.   

134.     Learned counsel also submitted that some of the  

aided minority and non-minority educational institutions are  

following the curriculum as laid down by independent  

recognized Boards such as CBSE, ICSE etc. and they are  

competent bodies for laying down such procedures and in  

case those schools are compelled to follow the curriculum  

and evaluation procedure laid down in Section 29, the  

schools would be put to considerable inconvenience and  

difficulties and may affect the quality of education.   

135.     I am of the view that requiring the minority and non-

minority institutions to follow the National Curriculum  

Framework or a Curriculum Framework made by the State,  

would not abrogate the right under Article 19(1)(g) or Article  

30(1) of the Constitution.   Requirement that the curriculum  

adopted by a minority institution should comply with certain  

basic norms is in consonance with the values enshrined in  

the Constitution and cannot be considered to be violative of

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the rights guaranteed to them under Article 30(1).  Further,  

the curriculum framework contemplated by Section 29(1)  

does not subvert the freedom of an institution to choose the  

nature of education that it imparts, as well as the affiliation  

with the CBSE or other educational boards.  Over and above,  

what has been prescribed by those affiliating or recognizing  

bodies is that these schools have also to follow the  

curriculum framework contemplated by Section 29(1) so as to  

achieve the object and purpose of the Act.  I, therefore, find  

no infirmity in the curriculum or evaluation procedure laid  

down in Section 29 of the Act.   

136.     Section 30 of the Act which provides that no child  

shall be required to pass any Board examination till the  

completion of elementary education and that on completion of  

elementary education, the child shall be awarded a  

certificate.  Education is free and compulsory for the children  

of the age 6 to 14 years and the object and purpose is to see  

that children should complete elementary education.  If they  

are subjected to any Board Examination and to any screening  

procedure, then the desired object would not be achieved.  

The object and purpose of Section 30 is to see that a child

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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  

impact on the Freedom of Religion and Conscience  

guaranteed under Article 25 insofar as it applies to  

institutions run by a religious denomination.  It was clarified  

by the Union of India that the Act would apply to institutions

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run by religious denominations in case the institution  

predominantly offers primary education either exclusively or  

in addition to religious instruction.  It was pointed out that  

where the institution predominantly provides religious  

instructions like Madrasas, Vedic Pathshalas etc. and do not  

provide formal secular education, they are exempted from the  

applicability of the Act.  The Act, therefore, does not interfere  

with the protection guaranteed under Articles 25 and 26 of  

the Constitution and the provisions in the Act in no way  

prevent the giving of religious education to students who wish  

to take religious education in addition to primary education.  

Article 25 makes it clear that the State reserves the right to  

regulate or restrict any economic, financial, political or other  

secular activities which are associated with religious practice  

and also states that the State can legislate for social welfare  

and reform, even though by doing so it would interfere with  

the religious practices.  Madrasas and Vedic Pathshalas, as I  

have already indicated, predominantly provide religious  

instruction and do not provide formal secular education and,  

hence, they are exempted from the applicability of the Act.  

The Central Government has now issued Guidelines dated  

23.11.2010 under Section 35(1) of the Act clarifying the above

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position.   The operative part of the guidelines reads as  

under:

“3. Institutions, including Madrasas and  Vedic Pathshalas, especially serving religious and  linguistic minorities are protected under Articles 29  and 30 of the Constitution.  The RTE Act does not  come in the way of continuance of such  institutions, or the rights of children in such  institutions.”

Madrasas, Vedic Pathshalas and similar institutions serving  

religious and linguistic minorities as such are, therefore,  

protected under Articles 29 and 30 of the Constitution from  

the rigour of the Act.  

138.   The Act has now brought in the concept of public-

private partnership for achieving the goal of Universal  

Elementary Education.  It also stresses upon the importance  

of preparing and strengthening the schools to address all  

kinds of diversities arising from inequalities of gender, caste,  

language, culture, religious or other disabilities.  The concept  

of neighbourhood schools has also been incorporated for the  

first time through a legislation and the right of access of the  

children to elementary education of satisfactory and equitable  

quality has also been ensured.  The duties and  

responsibilities of the appropriate government, local

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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  

for all children until they complete the age of six years and  

the appropriate government has to take necessary steps for  

providing free pre-school education for such children.  

Further, the Act also cast a duty on every parent or guardian  

to admit or cause to be admitted his or her child or ward, as  

the case may be, for an elementary education in the  

neighbourhood school, which is in conformity with Article  

51A(k) of the Constitution.  

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139.      The State has played a dominant role in providing  

educational services through the Government schools, largely  

managed by State Governments and local bodies, as well as  

through privately managed but publicly funded schools called  

government-aided schools.  These aided schools are operated  

by charitable trusts, voluntary organizations, and religious  

bodies but receive substantial funding from the government.  

According to the Indian Human Development Survey (IHDS),  

2005 about 67% of students attend government schools,  

about 5% attend government-aided schools, and 24% attend  

private schools.  Convents and Madrasas account for about  

1-2%.  The survey conducted by IHDS indicates that in 2005  

about 21% of rural and 51% of urban children were enrolled  

in private schools.  Part of this increase in private school  

enrolment has come about through a decline in enrolment in  

government-aided schools.  In 1994, nearly 22% of rural  

children were enrolled in government-aided schools.  By  

2005, this declined to a bare 7% in rural areas and 5% in  

urban areas.  At an all India level, 72% of children are  

enrolled in government schools, and about 28% are in private  

schools.   The survey further indicates that the children

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between 6-14 years old, about 40% participated in private  

sector education either through enrolment in private school  

(20%), through private tuition (13%), or both (7%).  The  

growing preference for private schooling and the reliance on  

private tutoring, has to be seen in the context of differences  

in admission of children in government and private schools.  

The quality of education in government schools, due to  

various reasons, has gone down considerably.  The Act is also  

envisaged on the belief that the schools run by the  

appropriate government, local authorities, aided and  

unaided, minority and non-minority, would provide  

satisfactory quality education to the children, especially  

children from disadvantaged and weaker sections.   

140.       Private aided educational institutions, though run  

on 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

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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 education in India. This fund is under the  

control of the Ministry of Human Resource and Development  

(MoHRD) and is typically utilized for its flagship programmes  

–  Sarva Sikksha Abhiyaan (SSA) and the Mid-day Meal  

Scheme (MDMS).   

142.      The statistics would indicate that out of the  

12,50,775 schools imparting elementary education in the  

country in 2007-08, 80.2% were all types of government

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schools, 5.8 % private aided schools and 13.1% private  

unaided schools. Almost 87.2% of the schools are located in  

the rural areas. In the rural areas the proportion of private  

unaided schools is only 9.3% and that of aided schools is  

4.7%. However, in the urban areas, the percentage of private  

unaided and aided schools are as high as 38.6% and 13.4%  

respectively.     

143.    Out of the total students enrolled in primary classes  

in 2007-08 about 75.4, 6.7 and 17.8% are enrolled in  

government, aided and unaided schools. The total number of  

teachers working in these schools in 2007-08 was 56,34,589  

of which 69.3, 10.4 and 20.7% are teaching in government,  

aided and private schools, the average number of teachers  

per school being 3.9, 8.3 and 6.7% respectively.   The  

statistics would indicate that the Government schools have  

the highest percentage of teachers who are professionally  

trained at 43.4%, followed by aided school (27.8%) and  

unaided private schools (only 2.3%).   However, the learning  

achievements are higher in private schools compared to  

Government schools.   Going through the objects and reasons  

of the Act, the private unaided educational institutions are

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roped in not due to lack of sufficient number of schools run  

by the appropriate Government, local authorities or aided  

educational institutions, but basically on the principle of  

social inclusiveness so as to provide satisfactory quality  

education.  Some of the unaided educational institutions  

provide superior quality education, a fact conceded and it is a  

constitutional obligation of the appropriate Government, local  

authority and aided schools not only to provide free and  

compulsory education, but also quality education.  

144.    Positive steps should be taken by the State  

Governments and the Central Government to supervise and  

monitor how the schools which are functioning and providing  

quality education to the children function.  Responsibility is  

much more on the State, especially when the Statute is  

against holding back or detaining any child from standard I  

to VIII.

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

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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 watering down of  

the subject and even the abandonment of all formal teaching,  

for the inculcation of obedience to the State and to the  

"group," rather than the development of self-independence,  

for the deprecation of intellectual subjects.

146.      I am of the view that the opinions expressed by the  

academicians like Rothbard command respect and cannot be

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brushed aside as such because, much more than anything,  

the State has got a constitutional responsibility to see that  

our children are given quality education.   Provisions of the  

statute shall not remain a dead letter, remember we are  

dealing with the lives of our children, a national asset, and  

the future of the entire country depends upon their  

upbringing.  Our children in the future have to compete with  

their counter-parts elsewhere in the world at each and every  

level, both in curricular and extra-curricular fields.  Quality  

education and overall development of the child is of prime  

importance upon which the entire future of our children and  

the country rests.

147.       The legislation, in its present form, has got many  

drawbacks.   During the course of discussion, the necessity  

of constituting a proper Regulatory Body was also raised so  

that it can effectively supervise and monitor the functioning  

of these schools and also examine whether the children are  

being provided with not only free and compulsory education,  

but quality education.  The Regulatory authority can also  

plug the loopholes, take proper and steps for effective  

implementation of the Act and can also redress the

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grievances of the children.   

148.    Learned Attorney General for India has favoured the  

setting up of an Adjudicatory/Regulatory Authority to  

determine the question whether compliance with Section  

12(1)(b) and Section 12(1)(c) will have an adverse impact on  

the financial viability of the school, and if so, to suggest  

remedies and to deal with issues like expulsion etc.  

Learned Attorney General indicated the necessity of a  

statutory amendment if the Regulatory/Adjudicatory body  

has to be set up under the Act.  Proper adjudication  

mechanism may also pave the way for a successful and  

effective public-private partnership for setting up educational  

institutions of best quality so that our children will get  

quality education.  I am sure that the Government will give  

serious attention to the above aspect of the matter which are  

of prime importance since we are dealing with the future of  

the children of this country.    

PART     VI   

CONCLUSIONS

1. Article 21A casts an obligation on the State to provide

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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 non-

minority and minority educational institutions are  

concerned, holding that it can be given effect to only on  

the principles of voluntariness, autonomy and  

consensus and  not on compulsion or threat of non-

recognition or non-affiliation.

4. No distinction or difference can be drawn between  

unaided minority and non-minority schools with regard  

to appropriation of quota by the State or its reservation  

policy under Section 12(1)(c) of the Act.  Such an

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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 is open to them to admit  

their children in the schools of their choice, not  

invariably in the neighbourhood schools, subject to  

availability of seats and meeting their own expenses.

7.  Sections 4, 10, 14, 15 and 16 are held to be directory in  

their content and application.  The concerned  

authorities shall exercise such powers in consonance  

with the directions/guidelines laid down by the Central  

Government in that behalf.

8.  The provisions of Section 21 of the Act, as provided,  

would not be applicable to the schools covered under

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sub-Section (iv) of clause (n) of Section 2.  They shall  

also not be applicable to minority institutions, whether  

aided or unaided.

9.  In exercise of the powers conferred upon the  

appropriate Government under Section 38 of the RTE  

Act, the Government shall frame rules for carrying out  

the purposes of this Act and in particular, the matters  

stated under sub-Section (2) of Section 38 of the RTE  

Act.

10.  The directions, guidelines and rules shall be framed by  

the Central Government, appropriate Government  

and/or such other competent authority under the  

provisions of the RTE Act, as expeditiously as possible  

and, in any case, not later than six months from the  

date of pronouncement of this judgment.

11.  All the State Governments which have not constituted  

the State Advisory Council in terms of Section 34 of the  

RTE Act shall so constitute the Council within three  

months from today.  The Council so constituted shall  

undertake its requisite functions in accordance with the  

provisions of Section 34 of the Act and advise the

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Government in terms of clauses (6), (7) and (8) of this  

order immediately thereafter.

12.  Central Government and State Governments may set  

up a proper Regulatory Authority for supervision and  

effective functioning of the Act and its implementation.

13.  Madrasas, Vedic Pathshalas etc. which predominantly  

provide religious instructions and do not provide for  

secular education stand outside the purview of the Act.   

149.      The Writ Petitions are disposed of as above.   This  

Judgment would have prospective operation and would apply  

from the next academic year 2012-13 onwards.  However,  

admissions already granted would not be disturbed.   We  

record our deep appreciation for the valuable assistance  

rendered by the counsel appearing for the both sides.

…………………………………J.     (K. S. RADHAKRISHNAN)

New Delhi; April 12, 2012