Society for Un-aided
Private Schools of Rajasthan Vs. U.O.I. & ANR.
[WRIT PETITION (C)
NO. 95 OF 2010 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
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 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 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.
7.
Section 3(1) of the 2009 Act provides that every child of the age of 6 to 14 years
shall have a right to free and compulsory education in a neighbourhood school till
completion of elementary education. Section 3(2) inter alia provides that no child
shall be liable to pay any kind of fee or charges or expenses which may prevent
him or her from pursuing and completing the elementary education. An educational
institution is charitable. Advancement of education is a recognised head of
charity. Section 3(2) has been enacted with the object of removing financial barrier
which prevents a child from accessing education. The other purpose of enacting
Section 3(2) is to prevent educational institutions charging capitation fees
resulting in creation of a financial barrier which prevents a child from accessing
or exercising its right to education which is now provided for vide Article
21A. Thus, sub-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 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 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
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 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 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 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.
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 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
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 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 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?
10.
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 have
evolved as rules of interpretation only as a matter of reasonableness. They
help us to correlate Article 21 with Article 14, Article 19 and, so on. Applying
the above principle of reasonableness, though the right to access education
falls as a subject matter under Article 21A and though to implement the said Article,
Parliament has enacted the 2009 Act, one has to judge the validity of the said
Act in the light of the principle of reasonableness in Article 19(6),
particularly, when in T.M.A. Pai Foundation and in P.A. Inamdar v. State of
Maharashtra [(2005) 6 SCC 537], it has been held that right to establish and
administer an educational institution falls under Article 19(1)(g) of the
Constitution. Thus, the question which arises for determination is – whether
Section 12(1)(c) of the 2009 Act is a reasonable restriction on the
non-minority’s right to establish and administer an unaided educational institution
under Article 19(6)? Article 21 says that “no person shall be deprived of his life...except
according to the procedure established by law” whereas Article 19(1)(g) under
the chapter “right to freedom” says that all citizens have the right to
practice any profession or to carry on any occupation, trade or business which
freedom is not absolute but which could be subjected to 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 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 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
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 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 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 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.
11.
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 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
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 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 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 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 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 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).
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.
15.
Article
29(1) confers on any section of the citizens a right to conserve its own
language, script or culture by and through educational institutions and makes
it obvious that a minority could conserve its language, script or culture and, therefore,
the right to establish institutions of its choice is a necessary concomitant to
the right to conserve its distinctive language, script or culture and that
right is conferred on all minorities by Article 30(1). That right, however, is subject
to the right conferred by Article 29(2).
16.
Article
30(1) gives the minorities two rights: (a) to establish and (b) to administer
educational institutions of their choice. The real import of Article 29(2) and
Article 30(1) is that they contemplate a minority institution with a sprinkle
of outsiders admitted into it. By admitting a non-member into it the minority institution
does not shed its character and cease to be a minority institution.
17.
The
key to Article 30(1) lies in the words “of their choice”.
18.
The
right established by Article 30(1) is a fundamental right declared in terms
absolute unlike the freedoms guaranteed by Article 19 which is subject to
reasonable restrictions. Article 30(1) is intended to be a real right for the
protection of the minorities in the matter of setting up educational
institutions of their own choice. However, regulations may lawfully be imposed
either by legislative or executive action as a condition of receiving grant or
of recognition. However, such regulation must satisfy the test of
reasonableness and that such regulation should make the educational institution
an effective vehicle of education for the minority community or for the persons
who resort to it. Applying the above test in the case of Rev. Sidhajbhai Sabhai
v. State of Bombay [1963] SCR 837, this Court held the rule authorizing reservation
of seats and the threat of withdrawal of recognition under the impugned rule to
be violative of Article 30(1).
19.
The
above well-settled principles have to be seen in the context of the 2009 Act
enacted to implement Article 21A of the Constitution. At the very outset, the
question that arises for determination is – what was the intention of the
Parliament? Is the 2009 Act intended to apply to unaided minority schools? In
answer to the above question, it is important to note that in the case of P.A.
Inamdar, this Court held that there shall be no reservations in private unaided
colleges and that in that regard there shall be no difference between the minority
and non-minority institutions. However, by the Constitution (Ninety- third
Amendment) Act, 2005, Article 15 is amended. It is given Article 15(5). The
result is that P.A. Inamdar has been overruled on two counts: (a) whereas this
Court in P.A. Inamdar had stated that there shall be no reservation in private unaided
colleges, the Amendment decreed that there shall be reservations; (b) whereas this
Court in P.A. Inamdar had said that there shall be no difference between the unaided
minority and non-minority institutions, the Amendment decreed that there shall
be a difference. Article 15(5) is an enabling provision and it is for the respective
States either to enact a legislation or issue an executive instruction
providing for reservation except in the case of minority educational
institutions referred to in Article 30(1). The intention of the Parliament is that
the minority educational institution referred to in Article 30(1) is a separate
category of institutions which needs protection of Article 30(1) and viewed in
that light we are of the view that unaided minority school(s) needs special
protection under Article 30(1). Article 30(1) is not conditional as Article
19(1)(g). In a sense, it is absolute as the Constitution framers thought that
it was the duty of the Government of the day to protect the minorities in the matter
of preservation of culture, language and script via establishment of educational
institutions for religious and charitable purposes [See: Article 26]. Reservations
of 25% in such unaided minority schools result in changing the character of the
schools if right to establish and administer such schools flows from the right to
conserve the language, script or culture, which right is conferred on such unaided
minority schools. Thus, the 2009 Act including Section 12(1)(c) violates the right
conferred on such unaided minority schools under Article 30(1). However, when
we come to aided minority schools we have to keep in mind Article 29(2). As
stated, Article 30(1) is subject to Article 29(2). The said Article confers
right of admission upon every citizen into a State-aided educational institution.
Article 29(2) refers to an individual right. It is not a class right. It applies
when an individual is denied admission into an educational institution maintained
or aided by the State. The 2009 Act is enacted to remove barriers such as
financial barriers which restrict his/her access to education. It is enacted
pursuant to Article 21A. Applying the above tests, we hold that the 2009 Act is
constitutionally valid qua aided minority schools. Conclusion (according to
majority):
20.
Accordingly,
we hold that the Right of Children to Free and Compulsory Education Act, 2009 is
constitutionally valid and shall apply to the following: (i) a school
established, owned or controlled by the appropriate Government or a local
authority; (ii) an aided school including aided minority school(s) receiving
aid or grants to meet whole or part of its expenses from the appropriate
Government or the local authority; (iii) a school belonging to specified
category; and (iv) an unaided non-minority school not receiving any kind of aid
or grants to meet its expenses from the appropriate Government or the local
authority. However, the said 2009 Act and in particular Sections 12(1)(c) and 18(3)
infringes the fundamental freedom guaranteed to unaided minority schools under
Article 30(1) and, consequently, applying the R.M.D. Chamarbaugwalla v. Union of
India [1957 SCR 930] principle of severability, the 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
Society For Un-Aided
P. School of Rajasthan Vs U.O.I. & ANR.
[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.
1.
We
are, in these cases, concerned with the constitutional validity of the Right of
Children to Free and Compulsory Education Act 2009 (35 of 2009) [in short, the
Act], which was enacted following the insertion of Article 21A by the
Constitution (Eighty-sixth Amendment) Act, 2002. Article 21A provides for free
and compulsory education to all children of the age 6 to 14 years and also
casts an obligation on the State to provide and ensure admission, attendance
and completion of elementary education in such a manner that the State may by law
determine. The Act is, therefore, enacted to provide for free and compulsory
education to all children of the age 6 to 14 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 step providing
universal elementary education for all the children. Controversy in all these
cases is not with regard to the validity of Article 21A, but mainly centers
around its interpretation and the validity of Sections 3, 12(1)(b) and 12(1)(c)
and some other related provisions of the Act, which cast obligation on all elementary
educational institutions to admit children of the age 6 to 14 years from their neighbourhood,
on the principle of social inclusiveness. Petitioners also challenge certain other
provisions purported to interfere with the administration, management and
functioning of those institutions. I have dealt with all those issues in Parts
I to V of my judgment and my conclusions are in Part VI.
3.
Part
I of the judgment deals with the circumstances and background for the
introduction of Article 21A and its scope and object and the interpretation
given by the Constitution Benches of this Court on right to education. Part II
of the judgment deals with various socio-economic rights recognized by our
Constitution and the impact on other fundamental rights guaranteed to others
and the measures adopted by the Parliament to remove the obstacles for realization
of those rights, in cases where there is conflict. In Part 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 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 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 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. This right flows from Article 21 relating to personal
liberty and its content, parameters have to be determined in the light of Article
41 which provides for right to work, to education and to public assistance in
certain cases and Article 45 which provides for free and compulsory education
to children up to the age of 14 years. The apex Court has observed that the obligations
created by these Articles of the Constitution can be discharged by the State
either by establishing institutions of its own or by aiding recognising and
granting affiliation to educational institutions. On clause (3) of the proposed
Article 21, the report stated as follows: “11. Clause (3) of the proposed
Article 21 provides that the State shall not make any law for free and compulsory
education under clause (2), in relation to the educational institutions not
maintained by the State or not receiving aid out of State funds. However,
strong apprehensions were voiced about clause (3) of the proposed new Article
21A. Many of the people in the written memoranda and also educational experts in
the oral evidence have expressed displeasure over keeping the private
educational institutions outside the purview of the fundamental right to be given
to the children. The Secretary stated that the Supreme Court in the Unni Krishnan
judgment said that wherever the State is not providing any aid to any
institution, such an institution need not provide free education. The
Department took into account the Supreme Court judgment in the Unni Krishnan
case which laid down that no private institution, can be compelled to provide free
services. Therefore, they provided in the Constitutional amendment that this
concept of free education need not be extended to schools or institutions which
are not aided by the Government, the Secretary added. He, however, stated that there
was no intention, to exclude them from the overall responsibility to provide
education.”
8.
The
Committee specifically referred to the judgment in Unni Krishnan in paragraph
15.14 of the Report. Reference was also made to the dissenting note of one of
the members. Relevant portion of the report is extracted below: “15.14. Clause
(3) of the proposed Article 21(A) prohibits the State from making any law for free
and compulsory education in relation to educational institutions not maintained
by the State or not receiving aid out of State funds. This issue was discussed
by the Members of the Committee at length. The members were in agreement that
even though the so called private institutions do not receive any financial aid,
the children studying in those institutions should not be deprived of their fundamental
right. As regards the interpretation as to whether the private institutions
should provide free education or not, the Committee is aware of the Supreme
Court judgment given in the Unni Krishnan case. This judgment provides the rule
for application and interpretation. In view of the judgment, it is not
necessary to make a clause in the Constitution. It would be appropriate to
leave the interpretation to the courts instead of making a specific provision
in black and white. Some members, however, felt that the private institutions
which do not get any financial aid, provide quality education. Therefore, it would
be inappropriate to bring such institutions under the purview of free
education. Those members, accordingly, felt that clause (3) should not be
deleted. 15.15. The Committee, however, after a thorough discussion feels that
this provision need not be there. The Committee recommends that clause (3) of the
proposed Article 21(A) may be deleted. Smt. Hedwig Michael Rego, M.P. a Member of
the Committee gave a Minute of Dissent. It is appended to the report. 15.16. The
Committee recommends that the Bill be passed subject to the recommendations
made in the preceding paragraphs. MINUTES OF DISSENT I vehemently oppose the
State wanting to introduce free and compulsory education in private, unaided
schools. Clause 21A (3) must be inserted as I do not wish the State to make
laws regarding free and compulsory education in relation to educational
institutions not maintained by the State or not receiving aid out of State
funds. A Committee of State Education Ministers have already considered the
issue in view of the Unni Krishnan case, and found it not feasible to bring unaided
private educational institutions within the purview of the Bill. Hence, I
state once again that the proposed clause “21A(3”) must be inserted in the
Bill. Yours sincerely, Sd/’ (SMT. HEDWIG MICHAEL REGO)” (emphasis supplied)
9.
Report
referred to above was adopted by the Parliamentary Standing Committee on Human
Resource Development and submitted the same to the Rajya Sabha on 24.11.1997
and also laid on the Table of the Lok Sabha on 24.11.1997. The Lok Sabha was however
dissolved soon thereafter and elections were declared and that Bill was not further
pursued.
10.
The
Chairman of the Law Commission who authored Unni Krishnan judgment took up the
issue suo moto. Following the ratio in Unni Krishnan, the Law Commission
submitted its 165th Report to the Ministry of Law, Justice and Company Affairs,
Union of India vide letter dated 19.11.1998. Law Commission in that letter stated
as follows: “Law Commission had taken up the aforesaid subject suo moto having
regard to the Directive Principle of the Constitution of India as well as the decision
of the Supreme Court of India.”
11.
Referring
to the Constitution (Eighty-third Amendment) Bill, 1997, Law Commission in its
report in paragraph 6.1.4 stated as under: “6.1.4 (page 165.35): The Department
of Education may perhaps be right in saying that as of today the private educational
institutions which are not in receipt of any grant or aid from the State,
cannot be placed under an obligation to impart free education to all the
students admitted into their institutions. However, applying the ratio of
Unnikrishnan case, it is perfectly legitimate for the State or the affiliating Board,
as the case may be, to require the institution to admit and impart free
education to fifty per cent of the students as a condition for affiliation or
for permitting their students to appear for the Government/Board examination. To
start with, the percentage can be prescribed as twenty. Accordingly, twenty per
cent students could be selected by the concerned institution in consultation
with the local authorities and the parent-teacher association. This proposal would
enable the unaided institutions to join the national endeavour to provide
education to the children of India and to that extent will also help reduce the
financial burden upon the State.” (emphasis supplied)
12.
The
Law Commission which had initiated the proceedings suo moto in the light of
Unni Krishnan suggested deletion of clause (3) from Article 21A stating as follows:
“So far as clause (3) is concerned, the Law Commission states that it should be
totally recast on the light of the basic premise of the decision in Unni
Kirshnan which has been referred to hereinabove. It would neither be advisable nor
desirable that the unaided educational institutions are kept outside the proposed
Article altogether while the sole primary obligation to provide education is upon
the State, the educational institutions, whether aided or unaided supplement
this effort.” Para 6.6.2 of the report reads as under: “6.6.2. The unaided
institutions should be made aware that recognition, affiliation or permission
to send their children to appear for the Government/Board examination also casts
a corresponding social obligation upon them towards the society. The
recognition/affiliation/permission aforesaid is meant to enable them to
supplement the effort of the State and not to enable them to make money. Since they
exist and function effectively because of such recognition/affiliation/permission
granted by public authorities, they must and are bound to serve the public
interest. For this reason, the unaided educational institutions must be made to
impart free education to 50% of the students admitted to their institutions. This
principle has already been applied to medical, engineering and other colleges imparting
professional education and there is no reason why the schools imparting
primary/elementary education should not be placed under the same obligation. Clause
(3) of proposed Article 21A may accordingly be recast to give effect to the above
concept and obligation.” 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, no indication whether the
Government is inclined to pursue the pending bill. 6.9. The question is
debatable whether it is at all necessary to amend the Constitution when there
is an explicit recognition of the right to education till the age of fourteen
years by the Supreme Court in Unni Krishnan’s case. As the said judgment can be
overruled by a larger Bench in another case, thus making this right to
education vulnerable, it would appear advisable to give this right
constitutional sanctity.”
13.
Law
Commission was giving effect to the ratio of Unni Krishnan and made suggestions
to bring in Article 21A mainly on the basis of the scheme framed in Unni Krishnan
providing “free seats” in private educational institutions.
14.
The
Law Commission report, report of the Parliamentary Standing Committee, judgment
in Unni Krishnan etc. were the basis on which the Constitution (Ninety-third Amendment)
Bill, 2001 was prepared and presented. Statement of objects and reasons of the Bill
given below would indicate that fact: “2. With a view to making right to
education free and compulsory education a fundamental right, the Constitution (Eighty-third
Amendment ) Bill, 1997 was introduced in the Parliament to insert a new
article, namely, Article 21A conferring on all children in the age group of 6
to14 years the right to free and compulsory education. The said Bill was scrutinized
by the Parliamentary Standing Committee on Human Resource Development and the
subject was also dealt with in its 165th Report by the Law Commission of India.
3. After taking into consideration the report of the Law Commission of India
and the recommendations of the Standing Committee of Parliament, the proposed
amendments in Part 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 "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 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 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
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
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 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 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.
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-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?”
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 service whether to the exclusion,
complete or partial of citizens or otherwise.
29.
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 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 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 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 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 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 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 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 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 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 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 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 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. 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
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 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 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
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 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 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
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
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 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 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 (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 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, 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 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
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
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 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.
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, 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 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).
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 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 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 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 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 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. 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 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 (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 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 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 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 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 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 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 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 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 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…….”
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 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 (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 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.”
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 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 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 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 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 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 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 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
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 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 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 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 ; (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 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. (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 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 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.
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 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 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 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
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 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 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 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 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 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 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. 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 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 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- 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 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)].
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 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 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 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 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 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
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 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 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.
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 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 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 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 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 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 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 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 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 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 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 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
Back