{"id":3142,"date":"2012-04-13T00:55:13","date_gmt":"2012-04-12T18:55:13","guid":{"rendered":"http:\/\/mitramaadhyama.co.in\/?p=2640"},"modified":"2025-05-19T17:11:55","modified_gmt":"2025-05-19T11:41:55","slug":"sc-upholds-constitutional-validity-of-right-to-education-act-judgement-full-text","status":"publish","type":"post","link":"https:\/\/www.xn--4scekqbpyn4fbh2dwe.xn--2scrj9c\/?p=3142","title":{"rendered":"SC upholds constitutional validity of Right to Education Act : Judgement FULL TEXT"},"content":{"rendered":"<pre>                                                               1\n                                              REPORTABLE\n            IN THE SUPREME COURT OF INDIA\n                CIVIL ORIGINAL JURISDICTION\n            WRIT PETITION (C) NO. 95 OF 2010\nSociety for Un-aided Private Schools\nof Rajasthan                              ... Petitioner(s)\n                 versus\nU.O.I. &amp; Anr.                             ...Respondent(s)<\/pre>\n<p><!--more--><\/p>\n<pre>\nwith Writ Petition (C) Nos. 98\/2010, 126\/2010, 137\/2010,\n228\/2010, 269\/2010, 310\/2010, 364\/2010, 384\/2010,\n21\/2011, 22\/2011, 24\/2011, 47\/2011, 50\/2011, 59\/2011,\n83\/2011,    86\/2011,     88\/2011,   99\/2011,   101\/2011,\n102\/2011, 104\/2011, 115\/2011, 118\/2011, 126\/2011,\n148\/2011, 154\/2011, 176\/2011, 186\/2011, 205\/2011,\n238\/11 and 239\/11.\n                      JUDGMENT\nS. H. KAPADIA, CJI\n1.   We have had the benefit of carefully considering the\nerudite judgment delivered by our esteemed and learned\nBrother Radhakrishnan, J. Regretfully, we find ourselves in\nthe unenviable position of having to disagree with the views\nexpressed therein concerning the non-applicability of the\nRight of Children to Free and Compulsory Education Act,\n2009 (for short \"the 2009 Act\") to the unaided non-minority\n\f                                                                       2\nschools.\n2.      The judgment of Brother Radhakrishnan, J. fully sets\nout the various provisions of the 2009 Act as well as the\nissues which arise for determination, the core issue concerns\nthe constitutional validity of the 2009 Act.\nIntroduction\n3.      To say that \"a thing is constitutional is not to say that it\nis desirable\" [see Dennis v. United States, (1950) 341 US\n494].\n4.      A fundamental principle for the interpretation of a\nwritten Constitution has been spelt out in R. v. Burah\n[reported in (1878) 5 I.A. 178] which reads as under:\n         \"The established Courts of Justice, when a question\n         arises whether the prescribed limits have been\n         exceeded, must of necessity determine that question;\n         and the only way in which they can properly do so, is\n         by looking to the terms of the Constitution by which,\n         affirmatively, the legislative powers were created, and\n         by which, negatively, they are restricted. If what has\n         been done is legislation, within the general scope of\n         the affirmative words which give the power, and if it\n         violates no express condition or restriction by which\n         that power is limited it is not for any Court to inquire\n         further, or to enlarge constructively those conditions\n         and restrictions\".\n5.      Education is a process which engages many different\nactors : the one who provides education (the teacher, the\nowner of an educational institution, the parents), the one who\n\f                                                                    3\nreceives education (the child, the pupil) and the one who is\nlegally responsible for the one who receives education (the\nparents, the legal guardians, society and the State).     These\nactors influence the right to education. The 2009 Act makes\nthe Right of Children to Free and Compulsory Education\njusticiable.   The 2009 Act envisages that each child must\nhave access to a neighbourhood school.       The 2009 Act has\nbeen enacted keeping in mind the crucial role of Universal\nElementary Education for strengthening the social fabric of\ndemocracy through provision of equal opportunities to all.\nThe Directive Principles of State Policy enumerated in our\nConstitution lay down that the State shall provide free and\ncompulsory education to all children upto the age of 14 years.\nThe said Act provides for right (entitlement) of children to free\nand compulsory admission, attendance and completion of\nelementary education in a neighbourhood school. The word\n\"Free\" in the long title to the 2009 Act stands for removal by\nthe State of any financial barrier that prevents a child from\ncompleting 8 years of schooling. The word \"Compulsory\" in\nthat title stands for compulsion on the State and the parental\nduty to send children to school. To protect and give effect to\nthis right of the child to education as enshrined in Article 21\n\f                                                                             4\nand Article 21A of the Constitution, the Parliament has\nenacted the 2009 Act.\n6.   The 2009 Act received the assent of the President on\n26.8.2009. It came into force w.e.f. 1.4.2010. The provisions\nof this Act are intended not only to guarantee right to free and\ncompulsory education to children, but it also envisages\nimparting     of     quality   education        by   providing   required\ninfrastructure       and   compliance      of    specified   norms    and\nstandards in the schools. The Preamble states that the 2009\nAct stands enacted inter alia to provide for free and\ncompulsory education to all children of the age of 6 to 14\nyears. The said Act has been enacted to give effect to Article\n21A of the Constitution.\nScope of the 2009 Act\n7.   Section 3(1) of the 2009 Act provides that every child of\nthe age of 6 to 14 years shall have a right to free and\ncompulsory         education   in   a   neighbourhood        school   till\ncompletion of elementary education.              Section 3(2) inter alia\nprovides that no child shall be liable to pay any kind of fee or\ncharges or expenses which may prevent him or her from\npursuing and completing the elementary education.                     An\neducational    institution     is   charitable.        Advancement     of\n\f                                                                      5\neducation is a recognised head of charity. Section 3(2) has\nbeen enacted with the object of removing financial barrier\nwhich prevents a child from accessing education. The other\npurpose of enacting Section 3(2) is to prevent educational\ninstitutions charging capitation fees resulting in creation of a\nfinancial barrier which prevents a child from accessing or\nexercising its right to education which is now provided for\nvide Article 21A. Thus, sub-Section (2) provides that no child\nshall be liable to pay any kind of fee or charges or expenses\nwhich may prevent him or her from pursuing or completing\nthe elementary education.      Section 4 inter alia provides for\nspecial provision for children not admitted to or who have not\ncompleted elementary education.        Section 5 deals with the\nsituation where there is no provision for completion of\nelementary education, then, in such an event, a child shall\nhave a right to seek transfer to any other school, excluding\nthe school specified in sub-clauses (iii) and (iv) of clause (n) of\nSection 2, for completing his or her elementary education.\nChapter III provides for duties of appropriate government,\nlocal authority and parents. Section 6 imposes an obligation\non the appropriate government and local authority to\nestablish   a   school   within    such    areas   or   limits   of\n\f                                                                     6\nneighbourhood, as may be prescribed, where it is not so\nestablished, within 3 years from the commencement of the\n2009 Act.    The emphasis is on providing \"neighbourhood\nschool\" facility to the children at the Gram Panchayat level.\nChapter IV of the 2009 Act deals with responsibilities of\nschools and teachers. Section 12 (1)(c) read with Section 2(n)\n(iii) and (iv) mandates that every recognised school imparting\nelementary education, even if it is an unaided school, not\nreceiving any kind of aid or grant to meet its expenses from\nthe appropriate government or the local authority, is obliged\nto admit in Class I, to the extent of at least 25% of the\nstrength of that class, children belonging to weaker section\nand disadvantaged group in the neighbourhood and provide\nfree and compulsory elementary education till its completion.\nAs per the proviso, if the School is imparting pre-school\neducation, the same regime would apply. By virtue of Section\n12(2) the unaided school which has not received any land,\nbuilding, equipment or other facilities, either free of cost or at\nconcessional rate, would be entitled for reimbursement of the\nexpenditure incurred by it to the extent of per child\nexpenditure incurred by the State, or the actual amount\ncharged from the child, whichever is less, in such manner as\n\f                                                                    7\nmay be prescribed. Such reimbursement shall not exceed per\nchild expenditure incurred by a school established, owned or\ncontrolled by the appropriate government or a local authority.\nSection 13 envisages that no school or person shall, while\nadmitting a child, collect any capitation fee and subject the\nchild or his or her parents to any screening procedure.\nSection 15 mandates that a child shall be admitted in a\nschool at the commencement of the academic year or within\nthe prescribed extended period. Sections 16 and 17 provide\nfor prohibition of holding back and expulsion and of physical\npunishment or mental harassment to a child.          Section 18\npostulates that after the commencement of the 2009 Act no\nschool, other than the excepted category, can be established\nor can function without obtaining a certificate of recognition\nfrom the appropriate authority.     The appropriate authority\nshall be obliged to issue the certificate of recognition within\nthe prescribed period specifying the conditions there for, if the\nschool fulfills the norms and standards specified under\nSections 19 and 25 read with the Schedule to the 2009 Act.\nIn the event of contravention of the conditions of recognition,\nthe prescribed authority can withdraw recognition after giving\nan opportunity of being heard to such school. The order of\n\f                                                                    8\nwithdrawal of recognition should provide a direction to\ntransfer the children studying in the de-recognised school to\nbe admitted to the specified neighbourhood school.         Upon\nwithdrawal of recognition, the de-recognised school cannot\ncontinue to function, failing which, is liable to pay fine as per\nSection 19(5).    If any person establishes or runs a school\nwithout obtaining certificate of recognition, or continues to\nrun a school after withdrawal of the recognition, shall be\nliable to pay fine as specified in Section 19(5). The norms and\nstandards for establishing or for grant of recognition to a\nschool are specified in Section 19 read with the Schedule to\nthe 2009 Act.     All schools which are established before the\ncommencement of the 2009 Act in terms of Section 19(2) are\nexpected to comply with specified norms and standards\nwithin 3 years from the date of such commencement. Failure\nto do so would entail in de-recognition of such school.\nSection   22     postulates   that   the   School   Management\nCommittee constituted under Section 21, shall prepare a\nSchool Development Plan in the prescribed manner. Section\n22(2) provides that the School Development Plan so prepared\nshall be the basis for the grants to be made by the\nappropriate government or local authority, as the case may\n\f                                                                    9\nbe.    That plan, however, cannot have any impact on\nconsideration of application for grant of recognition for\nestablishing an unaided school.       To ensure that teachers\nshould contribute in imparting quality education in the\nschool itself, Section 28 imposes total prohibition on them to\nengage in private tuition or private teaching activities.\nChapter VI inter alia provides for protection of rights of\nchildren.    Section 32 thus provides that any person having\ngrievance relating to the right of child under the 2009 Act,\nmay make a written complaint to the local authority having\njurisdiction, who in turn is expected to decide it within three\nmonths after affording a reasonable opportunity of being\nheard to the parties concerned.       In addition, in terms of\nSection     31,   the   Commissions   constituted    under   the\nprovisions of the Commissions for Protection of Child Rights\nAct, 2005 can monitor the child's right to education, so as to\nsafeguard the right of the child upon receiving any complaint\nin that behalf relating to free and compulsory education.\n8.    By virtue of the 2009 Act, all schools established prior to\nthe commencement of the said Act are thus obliged to fulfill\nthe norms and standards specified inter alia in Sections 25,\n26 and the Schedule of that Act. [See Section 19(2)].        The\n\f                                                                          10\nState is also expected to first weed out those schools which\nare non-performing, or under-performing or non-compliance\nschools and upon closure of such schools, the students and\nthe teaching and non-teaching staff thereof should be\ntransferred to the neighbourhood school.             The provision is\nmeant not only to strengthen the latter school by adequate\nnumber of students but to consolidate and to impart quality\neducation due to the addition of teaching staff. Needless to\nobserve,     that    if   there   is   inadequate   response   to   the\ngovernment funded school, it is but appropriate that either\nthe divisions thereof or the school itself be closed and the\nstudents and staff of such schools be transferred to a\nneighbourhood school by resorting to Section 18(3) of the\n2009 Act. Only after taking such decisions could the School\nDevelopment         Plan represent the correct position regarding\nthe need of government aided schools in every locality across\nthe State.     Besides, it will ensure proper and meaningful\nutilization of public funds. In absence of such exercise, the\nend result would be that on account of existing non-\nperforming or under-performing or non-compliance schools,\nthe School Development Plan would not reckon that locality\nfor establishment of another school.           In our view, even the\n\f                                                                  11\nState Government(s), by resorting to the provision of the 2009\nAct, must take opportunity to re-organise its financial outflow\nat the micro level by weeding out the non-performing or\nunder-performing or non-compliance schools receiving grant-\nin- aid, so as to ensure that only such government funded\nschools, who fulfill the norms and standards, are allowed to\ncontinue, to achieve the object of the 2009 Act of not only\nproviding free and compulsory education to the children in\nthe neighbourhood school but also to provide quality\neducation. Thus, there is a power in the 2009 Act coupled\nwith the duty of the State to ensure that only such\ngovernment funded schools, who fulfill the norms and\nstandards, are allowed to continue with the object of\nproviding free and compulsory education to the children in\nthe neighbourhood school.\nValidity and applicability of the 2009 Act qua unaided\nnon-minority schools\n9.   To begin with, we need to understand the scope of\nArticle 21A. It provides that the State shall provide free and\ncompulsory education to all children of the age of 6 to 14\nyears in such manner as the State may, by law, determine.\nThus, under the said Article, the obligation is on the State to\n\f                                                                     12\nprovide free and compulsory education to all children of\nspecified age. However, under the said Article, the manner in\nwhich the said obligation will be discharged by the State has\nbeen left to the State to determine by law. Thus, the State\nmay decide to provide free and compulsory education to all\nchildren of the specified age through its own schools or\nthrough government aided schools or through unaided private\nschools.     The question is whether such a law transgresses\nany constitutional limitation?    In this connection, the first\nand foremost principle we have to keep in mind is that what\nis enjoined by the directive principles (in this case Articles 41,\n45 and 46) must be upheld as a \"reasonable restriction\"\nunder Articles 19(2) to 19(6). As far back as 1952, in State of\nBihar   v.    Maharajadhiraja    Sir   Kameshwar       Singh    of\nDarbhanga [(1952) SCR 889], this Court has illustrated how a\ndirective principle may guide the Court in determining crucial\nquestions on which the validity of an important enactment\nmay be hinged. Thus, when the courts are required to decide\nwhether the impugned law infringes a fundamental right, the\ncourts need to ask the question whether the impugned law\ninfringes a fundamental right within the limits justified by the\ndirective principles or whether it goes beyond them.           For\n\f                                                                    13\nexample, the scope of the right of equality of opportunity in\nmatters relating to employment (Article 16) to any office in the\nState appears more fully defined when read with the\nobligation of the State to promote with special care the\neconomic and other interests of the weaker sections (Article\n46). Similarly, our understanding of the right \"to practice any\nprofession or occupation\" [Article 19(1)(g)] is clarified when we\nread along with that right the obligation of the State to see\nthat the health of the workers and the tender age of the\nchildren are not abused (Article 39).       Thus, we need to\ninterpret the fundamental rights in the light of the\ndirective principles. The above principles are very relevant\nin this case because the very content of Article 21A comes\nfrom reading of Articles 41, 45 and 46 and, more particularly,\nfrom Article 45 (as it then stood before the Constitution\n(Eighty sixth Amendment) Act, 2002).        It has been urged\nbefore us that Article 45, as it then stood, imposed obligation\non the State to provide for free and compulsory education for\nall children until they complete the age of 14 years and that\nthe said obligation cannot be shifted or passed on to an\nunaided school, as defined in Section 2(n)(iv) of the 2009 Act.\nTo answer the said contention, one needs to appreciate the\n\f                                                                     14\nscope of Articles 21, 21A, 19(1)(g) and Articles 41, 45 and 46\nof the Constitution.     At the outset, it may be stated, that\nfundamental rights have two aspects \u00ad they act as fetter on\nplenary   legislative   powers   and,   secondly,   they   provide\nconditions for fuller development of our people including their\nindividual dignity. Right to live in Article 21 covers access to\neducation. But unaffordability defeats that access. It defeats\nthe State's endeavour to provide free and compulsory\neducation for all children of the specified age. To provide for\nfree and compulsory education in Article 45 is not the same\nthing as to provide free and compulsory education. The word\n\"for\" in Article 45 is a preposition. The word \"education\" was\nread into Article 21 by the judgments of this Court. However,\nArticle 21 merely declared \"education\" to fall within the\ncontours of right to live.       To provide for right to access\neducation, Article 21A was enacted to give effect to Article 45\nof the Constitution. Under Article 21A, right is given to the\nState to provide by law \"free and compulsory education\".\nArticle 21A contemplates making of a law by the State. Thus,\nArticle 21A contemplates right to education flowing from the\nlaw to be made which is the 2009 Act, which is child centric\nand not institution centric.      Thus, as stated, Article 21A\n\f                                                                   15\nprovides that the State shall provide free and compulsory\neducation to all children of the specified age in such manner\nas the State may, by law, determine. The manner in which\nthis obligation will be discharged by the State has been left to\nthe State to determine by law. The 2009 Act is thus enacted\nin terms of Article 21A.    It has been enacted primarily to\nremove all barriers (including financial barriers) which impede\naccess to education.       One more aspect needs to be\nhighlighted. It is not in dispute that education is a recognised\nhead of \"charity\" [see T.M.A. Pai Foundation v. State of\nKarnataka (2002) 8 SCC 481]. Therefore, even according to\nT.M.A. Pai Foundation, if an educational institution goes\nbeyond \"charity\" into commercialization, it would not be\nentitled to protection of Article 19(1)(g).   This is where the\nparadox comes in.      If education is an activity which is\ncharitable, could the unaided non-minority educational\ninstitution contend that the intake of 25% children belonging\nto weaker section and disadvantaged group only in class I as\nprovided for in Section 12(1)(c) would constitute violation of\nArticle 19(1)(g)? Would such a provision not be saved by the\nprinciple of reasonable restriction imposed in the interest of\nthe general public in Article 19(6) of the Constitution?\n\f                                                                      16\n10.   Coming to the principle of reasonableness, it may be\nstated, that though subject-wise, Article 21A deals with\naccess to education as against right to establish and\nadminister educational institution in Article 19(1)(g), it is now\nnot open to anyone to contend that the law relating to right to\naccess education within Article 21A does not have to meet the\nrequirement of Article 14 or Article 19 for its reasonableness.\n[See Khudiram Das v. State of West Bengal reported in\n(1975) 2 SCR 832]       After the judgment of this Court in\nManeka Gandhi v. Union of India [(1978) 1 SCC 248], the\nprinciple of reasonableness is applicable to Article 14 of the\nConstitution.    As held by this Court in Glanrock Estate\nPrivate Limited v. State of Tamil Nadu [(2010) 10 SCC 96],\nArticle 21 (right to life) remains the core of the Constitution\naround which Article 14, Article 19 and others revolve.         In\nother words, all other fundamental rights in Part III would be\ndependent upon right to life in Article 21 as interpreted by\nthis Court to include right to live with dignity, right to\neducation, etc. At the end of the day, whether one adopts the\npith and substance test or the nature and character of the\nlegislation test or the effect test, one finds that all these tests\n\f                                                                     17\nhave evolved as rules of interpretation only as a matter of\nreasonableness.     They help us to correlate Article 21 with\nArticle 14, Article 19 and, so on. Applying the above principle\nof reasonableness, though the right to access education falls\nas a subject matter under Article 21A and though to\nimplement the said Article, Parliament has enacted the 2009\nAct, one has to judge the validity of the said Act in the light of\nthe principle of reasonableness in Article 19(6), particularly,\nwhen in T.M.A. Pai Foundation and in P.A. Inamdar v.\nState of Maharashtra [(2005) 6 SCC 537], it has been held\nthat right to establish and administer an educational\ninstitution falls under Article 19(1)(g) of the Constitution.\nThus, the question which arises for determination is \u00ad\nwhether Section 12(1)(c) of the 2009 Act is a reasonable\nrestriction on the non-minority's right to establish and\nadminister an unaided educational institution under Article\n19(6)? Article 21 says that \"no person shall be deprived of\nhis life...except according to the procedure established by law\"\nwhereas Article 19(1)(g) under the chapter \"right to freedom\"\nsays that all citizens have the right to practice any profession\nor to carry on any occupation, trade or business which\nfreedom is not absolute but which could be subjected to\n\f                                                                     18\nsocial control under Article 19(6) in the interest of general\npublic.   By judicial decisions, right to education has been\nread into right to life in Article 21. A child who is denied right\nto access education is not only deprived of his right to live\nwith dignity, he is also deprived of his right to freedom of\nspeech and expression enshrined in Article 19(1)(a).          The\n2009 Act seeks to remove all those barriers including\nfinancial and psychological barriers which a child belonging\nto the weaker section and disadvantaged group has to face\nwhile seeking admission. It is true that, as held in T.M.A. Pai\nFoundation as well as P.A. Inamdar, the right to establish\nand administer an educational institution is a fundamental\nright, as long as the activity remains charitable under Article\n19(1)(g), however, in the said two decisions the correlation\nbetween Articles 21 and 21A, on the one hand, and Article\n19(1)(g), on the other, was not under consideration. Further,\nthe content of Article 21A flows from Article 45 (as it then\nstood). The 2009 Act has been enacted to give effect to Article\n21A. For the above reasons, since the Article 19(1)(g) right is\nnot an absolute right as Article 30(1), the 2009 Act cannot be\ntermed as unreasonable. To put an obligation on the unaided\nnon-minority school to admit 25% children in class I under\n\f                                                                     19\nSection 12(1)(c) cannot be termed as an unreasonable\nrestriction.    Such a law cannot be said to transgress any\nconstitutional limitation.   The object of the 2009 Act is to\nremove the barriers faced by a child who seeks admission to\nclass I and not to restrict the freedom under Article 19(1)(g).\nThe next question that arises for determination is \u00ad whether\nSection 12(1)(c) of the 2009 Act impedes the right of the non-\nminority to establish and administer an unaided educational\ninstitution? At the outset, it may be noted that Article 19(6)\nis a saving and enabling provision in the Constitution as it\nempowers the Parliament to make a law imposing reasonable\nrestriction on the Article 19(1)(g) right to establish and\nadminister an educational institution while Article 21A\nempowers the Parliament to enact a law as to the manner in\nwhich the State will discharge its obligation to provide for free\nand compulsory education. If the Parliament enacts the law,\npursuant to Article 21A, enabling the State to access the\nnetwork    (including   infrastructure)   of   schools   including\nunaided non-minority schools would such a law be said to be\nunconstitutional, not saved under Article 19(6)? Answer is in\nthe negative.    Firstly, it must be noted that the expansive\nprovisions of the 2009 Act are intended not only to guarantee\n\f                                                                    20\nthe right to free and compulsory education to children, but to\nset up an intrinsic regime of providing right to education to all\nchildren   by   providing   the   required   infrastructure   and\ncompliance of norms and standards. Secondly, unlike other\nfundamental rights, the right to education places a burden\nnot only on the State, but also on the parent\/ guardian of\nevery child [Article 51A(k)].     The Constitution directs both\nburdens to achieve one end: the compulsory education of\nchildren free from the barriers of cost, parental obstruction or\nState inaction.   Thus, Articles 21A and 51A(k) balance the\nrelative burdens on the parents and the State.        Thus, the\nright to education envisages a reciprocal agreement between\nthe State and the parents and it places an affirmative burden\non all stakeholders in our civil society.      Thirdly, right to\nestablish an educational institution has now been recognized\nas a fundamental right within the meaning of Article 19(1)(g).\nThis view is enforced by the opinion of this Court in T.M.A.\nPai Foundation and P.A. Inamdar that all citizens have a\nright to establish and administer educational institutions\nunder Articles 19(1)(g) and 26 but that right is subject to the\nprovisions of Articles 19(6) and 26(a).       The constitutional\nobligation of the State to provide for free and compulsory\n\f                                                                          21\neducation to the specified category of children is co-extensive\nwith the fundamental right guaranteed under Article 19(1)(g)\nto   establish   an    educational       institution.     Lastly,   the\nfundamental right to establish an educational institution\ncannot be confused with the right to ask for recognition or\naffiliation. The exercise of a fundamental right to establish\nand administer an educational institution can be controlled in\na number of ways.       Indeed, matters relating to the right to\ngrant of recognition and\/ or affiliation are covered within the\nrealm of statutory right, which, however, will have to satisfy\nthe test of reasonable restrictions [see Article 19(6)]. Thus,\nfrom the scheme of Article 21A and the 2009 Act, it is clear\nthat the primary obligation is of the State to provide for free\nand compulsory education to children between the age of 6 to\n14 years and, particularly, to children who are likely to be\nprevented from pursuing and completing the elementary\neducation   due   to    inability   to    afford   fees   or   charges.\nCorrespondingly, every citizen has a right to establish and\nadminister educational institution under Article 19(1)(g) so\nlong as the activity remains charitable.            Such an activity\nundertaken by the private institutions supplements the\nprimary obligation of the State. Thus, the State can regulate\n\f                                                                    22\nby law the activities of the private institutions by imposing\nreasonable restrictions under Article 19(6). The 2009 Act not\nonly encompasses the aspects of right of children to free and\ncompulsory education but to carry out the provisions of the\n2009 Act, it also deals with the matters pertaining to\nestablishment of school (s) as also grant of recognition (see\nsection 18). Thus, after the commencement of the 2009 Act,\nthe private management intending to establish the school has\nto make an application to the appropriate authority and till\nthe certificate is granted by that authority, it cannot establish\nor run the school.     The matters relevant for the grant of\nrecognition are also provided for in Sections 19, 25 read with\nthe Schedule to the Act. Thus, after the commencement of\nthe 2009 Act, by virtue of Section 12(1)(c) read with Section\n2(n)(iv), the State, while granting recognition to the private\nunaided   non-minority    school,   may    specify   permissible\npercentage of the seats to be earmarked for children who may\nnot be in a position to pay their fees or charges. In T.M.A.\nPai Foundation, this Court vide para 53 has observed that\nthe State while prescribing qualifications for admission in a\nprivate unaided institution may provide for condition of giving\nadmission to small percentage of students belonging to\n\f                                                                       23\nweaker sections of the society by giving them freeships, if not\ngranted by the government.       Applying the said law, such a\ncondition   in   Section    12(1)(c)   imposed   while      granting\nrecognition to the private unaided non-minority school cannot\nbe termed as unreasonable.       Such a condition would come\nwithin the principle of reasonableness in Article 19(6).\nIndeed, by virtue of Section 12(2) read with Section 2(n)(iv),\nprivate unaided school would be entitled to be reimbursed\nwith the expenditure incurred by it in providing free and\ncompulsory education to children belonging to the above\ncategory to the extent of per child expenditure incurred by the\nState in a school specified in Section 2(n)(i) or the actual\namount charged from the child, whichever is less.           Such a\nrestriction is in the interest of the general public. It is also a\nreasonable restriction. Such measures address two aspects,\nviz.,   upholding   the    fundamental   right   of   the    private\nmanagement to establish an unaided educational institution\nof their choice and, at the same time, securing the interests of\nthe children in the locality, in particular, those who may not\nbe able to pursue education due to inability to pay fees or\ncharges of the private unaided schools. We also do not see\nany merit in the contention that Section 12(1)(c) violates\n\f                                                                         24\nArticle 14. As stated, Section 12(1)(c) inter alia provides for\nadmission to class I, to the extent of 25% of the strength of\nthe class, of the children belonging to weaker section and\ndisadvantaged group in the neighbourhood and provide free\nand compulsory elementary education to them till its\ncompletion. The emphasis is on \"free and compulsory\neducation\". Earmarking of seats for children belonging to a\nspecified category who face financial barrier in the matter of\naccessing education satisfies the test of classification in\nArticle 14. Further, Section 12(1)(c) provides for level playing\nfield in the matter of right to education to children who are\nprevented from accessing education because they do not have\nthe means or their parents do not have the means to pay for\ntheir fees. As stated above, education is an activity in which\nwe    have   several    participants.    There   are     number     of\nstakeholders including those who want to establish and\nadminister educational institutions as these supplement the\nprimary obligation of the State to provide for free and\ncompulsory education to the specified category of children.\nHence,   Section       12(1)(c)   also   satisfies     the   test   of\nreasonableness, apart from the test of classification in Article\n14.\n\f                                                                     25\n11.   The last question which we have to answer under this\nhead is \u00ad whether Section 12(1)(c) runs counter to the\njudgments of this Court in T.M.A. Pai Foundation and P.A.\nInamdar or principles laid down therein? According to the\npetitioners, T.M.A. Pai Foundation defines various rights\nand has held vide para 50 that right to establish and\nadminister broadly comprises the following:- (i) right to admit\nstudents (ii) right to set up a reasonable fee structure etc. (the\nrest are not important for discussion under this Head). That,\nT.M.A. Pai Foundation lays down the essence and structure\nof rights in Article 19(1)(g) insofar as they relate to\neducational institutions in compliance with (a) the Charity\nPrinciple (b) the Autonomy Principle (c) the Voluntariness\nPrinciple (d) Anti-nationalisation (e) Co-optation Principle.\nIn support, reliance is placed by the petitioners on number of\nparas from the above two judgments. At the outset, we may\nreiterate that Article 21A of the Constitution provides that the\nState shall provide free and compulsory education to all\nchildren of the specified age in such manner as the State\nmay, by law, determine. Thus, the primary obligation to\nprovide free and compulsory education to all children of the\nspecified age is on the State. However, the manner in which\n\f                                                                   26\nthis obligation will be discharged by the State has been left to\nthe State to determine by law. The State may do so through\nits own schools or through aided schools or through private\nschools, so long as the law made in this regard does not\ntransgress any other constitutional limitation. This is because\nArticle 21A vests the power in the State to decide the manner\nin which it will provide free and compulsory education to the\nspecified category of children. As stated, the 2009 Act has\nbeen enacted pursuant to Article 21A. In this case, we are\nconcerned with the interplay of Article 21, Article 21A, on the\none hand, and the right to establish and administer\neducational institution under Article 19(1)(g) read with Article\n19(6). That was not the issue in T.M.A. Pai Foundation nor\nin P.A. Inamdar. In this case, we are concerned with the\nvalidity of Section 12(1)(c) of the 2009 Act. Hence, we are\nconcerned with the validity of the law enacted pursuant to\nArticle 21A placing restrictions on the right to establish and\nadminister educational institutions (including schools) and\nnot the validity of the Scheme evolved in Unni Krishnan, J.P.\nv. State of Andhra Pradesh [(1993) 1 SCC 645]. The above\njudgments in T.M.A. Pai Foundation and P.A. Inamdar were\nnot concerned with interpretation of Article 21A and the 2009\n\f                                                                   27\nAct. It is true that the above two judgments have held that all\ncitizens have a right to establish and administer educational\ninstitutions under Article 19(1)(g), however, the question as to\nwhether the provisions of the 2009 Act constituted a\nrestriction on that right and if so whether that restriction was\na reasonable restriction under Article 19(6) was not in issue.\nMoreover, the controversy in T.M.A. Pai Foundation arose in\nthe light of the scheme framed in Unni Krishnan's case and\nthe judgment in P.A. Inamdar was almost a sequel to the\ndirections in Islamic Academy of Education v. State of\nKarnataka [(2003) 6 SCC 697] in which the entire focus was\nInstitution centric and not child centric and that too in the\ncontext of higher education and professional education where\nthe level of merit and excellence have to be given a different\nweightage than the one we have to give in the case of\nUniversal Elementary Education for strengthening social\nfabric of democracy through provision of equal opportunities\nto all and for children of weaker section and disadvantaged\ngroup who seek admission not to higher education or\nprofessional courses but to Class I. In this connection, the\nrelevant paras from T.M.A. Pai Foundation make the\nposition clear. They are paras 37, 39, 40, 42, 45, 48, 49 and\n\f                                                                28\n50 (read together), 51, 53, 56, 58 - 61, 62, 67, 68, 70 etc.,\nsimilarly, paras 26, 35, 104, 146 of P.A. Inamdar. We quote\nthe relevant para in support of what we have stated above:\n      T.M.A. Pai Foundation\n      Para 48 read with para 50\n         48. Private education is one of the most dynamic\n      and fastest-growing segments of post-secondary\n      education at the turn of the twenty-first century. A\n      combination of unprecedented demand for access to\n      higher education and the inability or unwillingness of\n      the Government to provide the necessary support\n      has brought private higher education to the forefront.\n      Private institutions, with a long history in many\n      countries, are expanding in scope and number, and\n      are becoming increasingly important in parts of the\n      world that relied almost entirely on the public sector.\n        50. The right to establish and administer broadly\n      comprises the following rights:\n        (a) to admit students;\n        (b) to set up a reasonable fee structure;\n        (c) to constitute a governing body;\n        (d) to appoint staff (teaching and non-teaching);\n      and\n        (e) to take action if there is dereliction of duty on\n      the part of any employees.\n         58. For admission into any professional\n      institution, merit must play an important role. While\n      it may not be normally possible to judge the merit of\n      the applicant who seeks admission into a school,\n      while seeking admission to a professional institution\n      and to become a competent professional, it is\n      necessary that meritorious candidates are not\n      unfairly treated or put at a disadvantage by\n      preferences shown to less meritorious but more\n      influential applicants. Excellence in professional\n\f                                                             29\neducation would require that greater emphasis be\nlaid on the merit of a student seeking admission.\nAppropriate regulations for this purpose may be\nmade keeping in view the other observations made in\nthis judgment in the context of admissions to\nunaided institutions.\n   59. Merit is usually determined, for admission to\nprofessional and higher education colleges, by either\nthe marks that the student obtains at the qualifying\nexamination or school-leaving certificate stage\nfollowed by the interview, or by a common entrance\ntest conducted by the institution, or in the case of\nprofessional colleges, by government agencies.\n   60. Education is taught at different levels, from\nprimary to professional. It is, therefore, obvious that\ngovernment regulations for all levels or types of\neducational institutions cannot be identical; so also,\nthe extent of control or regulation could be greater\nvis-a-vis aided institutions.\n   61. In the case of unaided private schools,\nmaximum autonomy has to be with the management\nwith regard to administration, including the right of\nappointment, disciplinary powers, admission of\nstudents and the fees to be charged. At the school\nlevel, it is not possible to grant admissions on the\nbasis of merit. It is no secret that the examination\nresults at all levels of unaided private schools,\nnotwithstanding the stringent regulations of the\ngovernmental authorities, are far superior to the\nresults of the government-maintained schools. There\nis no compulsion on students to attend private\nschools. The rush for admission is occasioned by the\nstandards maintained in such schools, and\nrecognition of the fact that State-run schools do not\nprovide the same standards of education. The State\nsays that it has no funds to establish institutions at\nthe same level of excellence as private schools. But\nby curtailing the income of such private schools, it\ndisables those schools from affording the best\nfacilities because of a lack of funds. If this lowering of\nstandards from excellence to a level of mediocrity is\nto be avoided, the State has to provide the difference\n\f                                                           30\nwhich, therefore, brings us back in a vicious circle to\nthe original problem viz. the lack of State funds. The\nsolution would appear to lie in the States not using\ntheir scanty resources to prop up institutions that\nare able to otherwise maintain themselves out of the\nfees charged, but in improving the facilities and\ninfrastructure of State-run schools and in\nsubsidizing the fees payable by the students there. It\nis in the interest of the general public that more good\nquality schools are established; autonomy and non-\nregulation of the school administration in the right of\nappointment, admission of the students and the fee\nto be charged will ensure that more such institutions\nare established. The fear that if a private school is\nallowed to charge fees commensurate with the fees\naffordable, the degrees would be \"purchasable\" is an\nunfounded one since the standards of education can\nbe and are controllable through the regulations\nrelating to recognition, affiliation and common final\nexaminations.\nP.A. Inamdar\n   26. These matters have been directed to be placed\nfor hearing before a Bench of seven Judges under\norders of the Chief Justice of India pursuant to the\norder dated 15-7-2004 in P.A. Inamdar v. State of\nMaharashtra and order dated 29-7-2004 in\nPushpagiri Medical Society v. State of Kerala. The\naggrieved persons before us are again classifiable in\none class, that is, unaided minority and non-\nminority      institutions      imparting   professional\neducation. The issues arising for decision before us\nare only three:\n     (i)      the      fixation     of    \"quota\"     of\n   admissions\/students in respect of unaided\n   professional institutions;\n     (ii) the holding of examinations for admissions\n   to such colleges, that is, who will hold the\n   entrance tests; and\n     (iii) the fee structure.\n  104.    Article   30(1)   speaks    of   \"educational\n\f                                                                     31\n       institutions\" generally and so does Article 29(2).\n       These articles do not draw any distinction between\n       an educational institution dispensing theological\n       education or professional or non-professional\n       education. However, the terrain of thought as has\n       developed        through       successive       judicial\n       pronouncements culminating in Pai Foundation is\n       that looking at the concept of education, in the\n       backdrop     of     the    constitutional   provisions,\n       professional educational institutions constitute a\n       class by themselves as distinguished from\n       educational institutions imparting non-professional\n       education. It is not necessary for us to go deep into\n       this aspect of the issue posed before us inasmuch as\n       Pai Foundation has clarified that merit and\n       excellence assume special significance in the context\n       of professional studies. Though merit and excellence\n       are not anathema to non-professional education, yet\n       at that level and due to the nature of education\n       which is more general, the need for merit and\n       excellence therein is not of the degree as is called for\n       in the context of professional education.\n          146. Non-minority unaided institutions can also\n       be subjected to similar restrictions which are found\n       reasonable and in the interest of the student\n       community. Professional education should be made\n       accessible on the criterion of merit and on non-\n       exploitative terms to all eligible students on a\n       uniform basis. Minorities or non-minorities, in\n       exercise of their educational rights in the field of\n       professional education have an obligation and a duty\n       to maintain requisite standards of professional\n       education by giving admissions based on merit and\n       making education equally accessible to eligible\n       students through a fair and transparent admission\n       procedure and based on a reasonable fee structure.\n12.   P.A.   Inamdar   holds   that   right   to   establish   and\nadminister educational institution falls in Article 19(1)(g). It\n\f                                                                      32\nfurther holds that seat-sharing, reservation of seats, fixing of\nquotas, fee fixation, cross-subsidization, etc. imposed by\njudge-made scheme in professional\/ higher education is an\nunreasonable     restriction   applying    the     principles    of\nVoluntariness,     Autonomy,        Co-optation         and   Anti-\nnationalisation, and, lastly, it deals with inter-relationship of\nArticles 19(1)(g), 29(2) and 30(1) in the context of the minority\nand   non-minority's   right   to   establish     and    administer\neducational institutions. The point here is how does one read\nthe above principles of Autonomy, Voluntariness, Co-optation\nand Anti-nationalisation of seats.     On reading T.M.A. Pai\nFoundation and P.A. Inamdar in proper perspective, it\nbecomes clear that the said principles have been applied in\nthe context of professional\/ higher education where merit and\nexcellence have to be given due weightage and which tests do\nnot apply in cases where a child seeks admission to class I\nand when the impugned Section 12(1)(c) seeks to remove the\nfinancial obstacle. Thus, if one reads the 2009 Act including\nSection 12(1)(c) in its application to unaided non-minority\nschool(s), the same is saved as reasonable restriction under\nArticle 19(6).\n\f                                                                       33\n13.   However, we want the Government to clarify the position\non one aspect. There are boarding schools and orphanages in\nseveral parts of India.   In those institutions, there are day\nscholars and boarders. The 2009 Act could only apply to day\nscholars.   It cannot be extended to boarders.           To put the\nmatter beyond doubt, we recommend that appropriate\nguidelines be issued under Section 35 of the 2009 Act\nclarifying the above position.\nValidity and applicability of the 2009 Act qua unaided\nminority schools\n14.   The inspiring preamble to our Constitution shows that\none of the cherished objects of our Constitution is to assure\nto all its citizens the liberty of thought, expression, belief,\nfaith and worship. To implement and fortify these purposes,\nPart III has provided certain fundamental rights including\nArticle 26 of the Constitution which guarantees the right of\nevery religious denomination or a section thereof, to establish\nand   maintain   institutions    for   religious   and    charitable\npurposes; to manage its affairs in matters of religion; to\nacquire property and to administer it in accordance with law.\nArticles 29 and 30 confer certain educational and cultural\nrights as fundamental rights.\n\f                                                                      34\n15.   Article 29(1) confers on any section of the citizens a right\nto conserve its own language, script or culture by and\nthrough educational institutions and makes it obvious that a\nminority could conserve its language, script or culture and,\ntherefore, the right to establish institutions of its choice is a\nnecessary concomitant to the right to conserve its distinctive\nlanguage, script or culture and that right is conferred on all\nminorities by Article 30(1). That right, however, is subject to\nthe right conferred by Article 29(2).\n16.   Article 30(1) gives the minorities two rights: (a) to\nestablish and (b) to administer educational institutions of\ntheir choice. The real import of Article 29(2) and Article 30(1)\nis that they contemplate a minority institution with a sprinkle\nof outsiders admitted into it.     By admitting a non-member\ninto it the minority institution does not shed its character and\ncease to be a minority institution.\n17.   The key to Article 30(1) lies in the words \"of their choice\".\n18.   The right established by Article 30(1) is a fundamental\nright declared in terms absolute          unlike   the   freedoms\nguaranteed by Article 19 which is subject to reasonable\nrestrictions. Article 30(1) is intended to be a real right for the\n\f                                                                 35\nprotection of the minorities in the matter of setting up\neducational institutions of their own choice.        However,\nregulations may lawfully be imposed either by legislative or\nexecutive action as a condition of receiving grant or of\nrecognition. However, such regulation must satisfy the test of\nreasonableness and that such regulation should make the\neducational institution an effective vehicle of education for\nthe minority community or for the persons who resort to it.\nApplying the above test in the case of Rev. Sidhajbhai Sabhai\nv. State of Bombay [1963] SCR 837, this Court held the rule\nauthorizing reservation of seats and the threat of withdrawal\nof recognition under the impugned rule to be violative of\nArticle 30(1).\n19.   The above well-settled principles have to be seen in the\ncontext of the 2009 Act enacted to implement Article 21A of\nthe Constitution. At the very outset, the question that arises\nfor determination is \u00ad what was the intention of the\nParliament?      Is the 2009 Act intended to apply to unaided\nminority schools?      In answer to the above question, it is\nimportant to note that in the case of P.A. Inamdar, this Court\nheld that there shall be no reservations in private unaided\n\f                                                                       36\ncolleges and that in that regard there shall be no difference\nbetween    the    minority    and    non-minority     institutions.\nHowever, by the Constitution (Ninety-third Amendment) Act,\n2005, Article 15 is amended. It is given Article 15(5). The\nresult is that P.A. Inamdar has been overruled on two\ncounts: (a) whereas this Court in P.A. Inamdar had stated\nthat there shall be no reservation in private unaided colleges,\nthe Amendment decreed that there shall be reservations; (b)\nwhereas this Court in P.A. Inamdar had said that there shall\nbe no difference between the unaided minority and non-\nminority institutions, the Amendment decreed that there shall\nbe a difference. Article 15(5) is an enabling provision and it\nis for the respective States either to enact a legislation or\nissue an executive instruction providing for reservation except\nin the case of minority educational institutions referred to in\nArticle 30(1).   The intention of the Parliament is that the\nminority educational institution referred to in Article 30(1) is\na separate category of institutions which needs protection of\nArticle 30(1) and viewed in that light we are of the view that\nunaided minority school(s) needs special protection under\nArticle 30(1). Article 30(1) is not conditional as Article 19(1)(g).\nIn a sense, it is absolute as the Constitution framers thought\n\f                                                                     37\nthat it was the duty of the Government of the day to protect\nthe minorities in the matter of preservation of culture,\nlanguage   and    script   via   establishment   of   educational\ninstitutions for religious and charitable purposes [See: Article\n26]. Reservations of 25% in such unaided minority schools\nresult in changing the character of the schools if right to\nestablish and administer such schools flows from the right to\nconserve the language, script or culture, which right is\nconferred on such unaided minority schools. Thus, the 2009\nAct including Section 12(1)(c) violates the right conferred on\nsuch unaided minority schools under Article 30(1). However,\nwhen we come to aided minority schools we have to keep in\nmind Article 29(2). As stated, Article 30(1) is subject to Article\n29(2). The said Article confers right of admission upon every\ncitizen into a State-aided educational institution.        Article\n29(2) refers to an individual right. It is not a class right. It\napplies when an individual is denied admission into an\neducational institution maintained or aided by the State. The\n2009 Act is enacted to remove barriers such as financial\nbarriers which restrict his\/her access to education.         It is\nenacted pursuant to Article 21A. Applying the above tests, we\nhold that the 2009 Act is constitutionally valid qua aided\n\f                                                                    38\nminority schools.\nConclusion (according to majority):\n20.     Accordingly, we hold that the Right of Children to Free\nand Compulsory Education Act, 2009 is constitutionally valid\nand shall apply to the following:\n(i)      a school established, owned or controlled by the\n         appropriate Government or a local authority;\n(ii)     an aided school including aided minority school(s)\n         receiving aid or grants to meet whole or part of its\n         expenses from the appropriate Government or the local\n         authority;\n(iii)    a school belonging to specified category; and\n(iv)     an unaided non-minority school not receiving any kind\n         of aid or grants to meet its expenses from the\n         appropriate Government or the local authority.\n        However, the said 2009 Act and in particular Sections\n12(1)(c)    and   18(3)   infringes   the   fundamental   freedom\nguaranteed to unaided minority schools under Article 30(1)\nand, consequently, applying the R.M.D. Chamarbaugwalla v.\nUnion of India [1957 SCR 930] principle of severability, the\n\f                                                                                 39\nsaid 2009 Act shall not apply to such schools.\n21. This judgment will operate from today. In other words,\nthis will apply from the academic year 2012-13.                However,\nadmissions given by unaided minority schools prior to the\npronouncement of this judgment shall not be reopened.\n22.   Subject to what is stated above, the writ petitions are\ndisposed of with no order as to costs.\n                                   .......................................CJI\n                                      (S. H. Kapadia)\n                                   .........................................J.\n                                      (Swatanter Kumar)\nNew Delhi;\nApril 12, 2012\n\f                                                                      40\n                                                   REPORTABLE\n            IN THE SUPREME COURT OF INDIA\n                 CIVIL ORIGINAL JURISDICTION\n          WRIT PETITION (CIVIL) NO.95 OF 2010\nSOCIETY FOR UN-AIDED\nP.SCHOOL OF RAJASTHAN                        ...Petitioner(s)\n                                Versus\nU.O.I. &amp; ANR.                                 ..Respondent(s)\n                                WITH\nW.P. (C) NOs.98\/2010, 126\/2010, 137\/2010, 228\/2010,\n269\/2010, 310\/2010, 364\/2010, 384\/2010, 22\/2011,\n24\/2011, 21\/2011, 47\/2011, 59\/2011, 50\/2011, 83\/2011,\n88\/2011, 99\/2011, 102\/2011, 104\/2011, 86\/2011,\n101\/2011, 115\/2011, 154\/2011, 126\/2011, 118\/2011,\n186\/2011, 148\/2011, 176\/2011, 205\/2011, 238\/2011 and\n239\/2011\n                        JUDGMENT\nK. S. Radhakrishnan, J.\n     We   are,     in   these     cases,   concerned    with    the\nconstitutional validity of the Right of Children to Free and\nCompulsory Education Act 2009 (35 of 2009) [in short, the\n\f                                                                  41\nAct], which was enacted following the insertion of Article 21A\nby the Constitution (Eighty-sixth Amendment) Act, 2002.\nArticle 21A provides for free and compulsory education to all\nchildren of the age 6 to 14 years and also casts an obligation\non the State to provide and ensure admission, attendance\nand completion of elementary education in such a manner\nthat the State may by law determine. The Act is, therefore,\nenacted to provide for free and compulsory education to all\nchildren of the age 6 to 14 years and is anchored in the belief\nthat the values of equality, social justice and democracy and\nthe creation of just and humane society can be achieved only\nthrough a provision of inclusive elementary education to all\nthe children. Provision of free and compulsory education of\nsatisfactory quality to the children from disadvantaged\ngroups and weaker sections, it was pointed out, is not merely\nthe responsibility of the schools run or supported by the\nappropriate government, but also of schools which are not\ndependant on government funds.\n2.   Petitioners in all these cases, it may be mentioned, have\nwholeheartedly welcomed the introduction of Article 21A in\nthe Constitution and acknowledged it as a revolutionary step\n\f                                                                   42\nproviding universal elementary education for all the children.\nControversy in all these cases is not with regard to the\nvalidity of Article 21A, but mainly centers around its\ninterpretation and the validity of Sections 3, 12(1)(b) and\n12(1)(c) and some other related provisions of the Act, which\ncast obligation on all elementary educational institutions to\nadmit children of the age 6 to 14 years from their\nneighbourhood, on the principle of social inclusiveness.\nPetitioners also challenge certain other provisions purported\nto interfere with the administration, management and\nfunctioning of those institutions.   I have dealt with all those\nissues in Parts I to V of my judgment and my conclusions are\nin Part VI.\n3.   Part I of the judgment deals with the circumstances and\nbackground for the introduction of Article 21A and its scope\nand object and the interpretation given by the Constitution\nBenches of this Court on right to education. Part II of the\njudgment deals with various socio-economic rights recognized\nby our Constitution and the impact on other fundamental\nrights guaranteed to others and the measures adopted by the\nParliament to remove the obstacles for realization of those\n\f                                                                         43\nrights, in cases where there is conflict.           In Part III of the\njudgment,     I     have    dealt      with   the   obligations   and\nresponsibilities of the non-state actors in realization of\nchildren's rights guaranteed under Article 21A and the Act.\nIn Part IV, I have dealt with the constitutional validity of\nSection 12(1)(b), 12(1)(c) of the Act and in Part V, I have dealt\nwith the challenge against other provisions of the Act and my\nconclusions are in Part VI.\n4.   Senior       lawyers   \u00ad   Shri    Rajeev   Dhavan,   Shri   T.R.\nAndhyarujina, Shri Ashok H. Desai, Shri Harish S. Salve,\nShri N. Chandrasekharan, Shri K. Parasaran, Shri Chander\nUday Singh, Shri Shekhar Naphade, Shri Vikas Singh, Shri\nArvind P. Dattar and large number of other counsel also\npresented their arguments and rendered valuable assistance\nto the Court.       Shri Goolam E. Vahanvati, learned Attorney\nGeneral and Mrs. Indira Jaising, learned Additional Solicitor\nGeneral appeared for the Union of India.\nPART I\n5.   In Mohini Jain v. State of Karnataka and others\n[(1992) 3 SCC 666], this Court held that the right to\n\f                                                                   44\neducation is a fundamental right guaranteed under Article 21\nof the Constitution and that dignity of individuals cannot be\nassured unless accompanied by right to education and that\ncharging of capitation fee for admission to educational\ninstitutions would amount to denial of citizens' right to\neducation and is violative of Article 14 of the Constitution.\nThe ratio laid down in Mohini Jain was questioned in Unni\nKrishnan, J.P. and Others v. State of A.P. and Others\n[(1993) 1 SCC 645] contending that if the judgment in\nMohini Jain was given effect to, many of the private\neducational institutions would have to be closed down.\nMohini Jain was affirmed in Unni Krishnan to the extent of\nholding that the right to education flows from Article 21 of the\nConstitution and charging of capitation fee was illegal. The\nCourt partly overruled Mohini Jain and held that the right to\nfree education is available only to children until they\ncomplete the age of 14 years and after that obligation of the\nState to provide education would be subject to the limits of its\neconomic capacity and development.            Private unaided\nrecognized\/affiliated   educational     institutions   running\nprofessional courses were held entitled to charge the fee\nhigher than that charged by government institutions for\n\f                                                                  45\nsimilar courses but that such a fee should not exceed the\nmaximum limit fixed by the State. The Court also formulated\na scheme and directed every authority to impose that scheme\nupon institutions seeking recognition\/affiliation, even if they\nare unaided institutions.    Unni Krishnan introduced the\nconcept of \"free seats\" and \"payment seats\" and ordered that\nprivate unaided educational institutions should not add any\nfurther conditions and were held bound by the scheme. Unni\nKrishnan also recognized the right to education as a\nfundamental right guaranteed under Article 21 of the\nConstitution and held that the right is available to children\nuntil they complete the age of 14 years.\n6.   The Department of Education, Ministry of Human\nResources Development, Government of India after the\njudgment in Unni Krishnan made a proposal to amend the\nConstitution to make the right to education a fundamental\nright for children up to the age of 14 years and also a\nfundamental duty of citizens of India so as to achieve the goal\nof universal elementary education.         The Department also\ndrafted a Bill [Constitution (Eighty-third Amendment) Bill,\n1997] so as to insert a new Article 21A in the Constitution\n\f                                                                 46\nwhich read as follows:\n             \"21A. Right to education.\n      21A(1)     The State shall provide free and\n      compulsory education to all citizens of the age of six\n      to fourteen years.\n       Clause(2) The Right to Free and Compulsory\n      Education referred to in clause (1) shall be enforced\n      in such manner as the State may, by law,\n      determine.\n      Clause (3) The State shall not make any law, for\n      free and compulsory education under Clause(2), in\n      relation to the educational institutions not\n      maintained by the State or not receiving aid out of\n      State funds.\"\n7.   The draft Bill was presented before the Chairman, Rajya\nSabha on 28.07.1997, who referred the Bill to a     Committee\nfor examination and report.        The Committee called for\nsuggestions\/views        from   individuals,    organisations,\ninstitutions etc. and ultimately submitted its report on\n4.11.1997.      The Committee in its Report referred to the\nwritten note received from the Department of Education and\nstated as follows:\n          \"Department in its written note stated that the\n      Supreme Court in its judgment in Unni Krishnan\n      J.P. v. Andhra Pradesh, has held that children of\n      this country have a Fundamental Right to free\n      education until they complete the age of 14 years.\n\f                                                        47\nThis right flows from Article 21 relating to personal\nliberty and its content, parameters have to be\ndetermined in the light of Article 41 which provides\nfor right to work, to education and to public\nassistance in certain cases and Article 45 which\nprovides for free and compulsory education to\nchildren up to the age of 14 years. The apex Court\nhas observed that the obligations created by these\nArticles of the Constitution can be discharged by\nthe State either by establishing institutions of its\nown or by aiding recognising and granting affiliation\nto educational institutions. On clause (3) of the\nproposed Article 21, the report stated as follows:\n        \"11. Clause (3) of the proposed Article 21\n  provides that the State shall not make any law\n  for free and compulsory education under clause\n  (2), in relation to the educational institutions\n  not maintained by the State or not receiving aid\n  out of State funds.            However, strong\n  apprehensions were voiced about clause (3) of\n  the proposed new Article 21A. Many of the\n  people in the written memoranda and also\n  educational experts in the oral evidence have\n  expressed displeasure over keeping the private\n  educational institutions outside the purview of\n  the fundamental right to be given to the\n  children.     The Secretary stated that the\n  Supreme Court in the Unni Krishnan judgment\n  said that wherever the State is not providing\n  any aid to any institution, such an institution\n  need not provide free education.             The\n  Department took into account the Supreme\n  Court judgment in the Unni Krishnan case\n  which laid down that no private institution, can\n  be compelled to provide free services. Therefore,\n  they provided in the Constitutional amendment\n  that this concept of free education need not be\n  extended to schools or institutions which are\n  not aided by the Government, the Secretary\n  added. He, however, stated that there was no\n  intention, to exclude them from the overall\n  responsibility to provide education.\"\n\f                                                                 48\n8.     The Committee specifically referred to the judgment in\nUnni Krishnan in paragraph 15.14 of the Report.      Reference\nwas also made to the dissenting note of one of the members.\nRelevant portion of the report is extracted below:\n            \"15.14. Clause (3) of the proposed Article 21(A)\n      prohibits the State from making any law for free\n      and compulsory education in relation to educational\n      institutions not maintained by the State or not\n      receiving aid out of State funds. This issue was\n      discussed by the Members of the Committee at\n      length. The members were in agreement that even\n      though the so called private institutions do not\n      receive any financial aid, the children studying in\n      those institutions should not be deprived of their\n      fundamental right. As regards the interpretation as\n      to whether the private institutions should provide\n      free education or not, the Committee is aware of the\n      Supreme Court judgment given in the Unni\n      Krishnan case. This judgment provides the rule for\n      application and interpretation.      In view of the\n      judgment, it is not necessary to make a clause in\n      the Constitution. It would be appropriate to leave\n      the interpretation to the courts instead of making a\n      specific provision in black and white.           Some\n      members, however, felt that the private institutions\n      which do not get any financial aid, provide quality\n      education. Therefore, it would be inappropriate to\n      bring such institutions under the purview of free\n      education. Those members, accordingly, felt that\n      clause (3) should not be deleted.\n           15.15.      The Committee, however, after a\n      thorough discussion feels that this provision need\n      not be there. The Committee recommends that\n      clause (3) of the proposed Article 21(A) may be\n      deleted. Smt. Hedwig Michael Rego, M.P. a Member\n      of the Committee gave a Minute of Dissent. It is\n      appended to the report.\n\f                                                               49\n           15.16. The Committee recommends that the\n      Bill be passed subject to the recommendations\n      made in the preceding paragraphs.\n                MINUTES OF DISSENT\n           I vehemently oppose the State wanting to\n      introduce free and compulsory education in private,\n      unaided schools.\n            Clause 21A (3) must be inserted as I do not\n      wish the State to make laws regarding free and\n      compulsory education in relation to educational\n      institutions not maintained by the State or not\n      receiving aid out of State funds.\n           A Committee of State Education Ministers\n      have already considered the issue in view of the\n      Unni Krishnan case, and found it not feasible to\n      bring unaided private educational institutions\n      within the purview of the Bill.\n           Hence, I state once again that the proposed\n      clause \"21A(3\") must be inserted in the Bill.\n                                         Yours sincerely,\n                                                Sd\/'\n                       (SMT. HEDWIG MICHAEL REGO)\"\n                                  (emphasis supplied)\n9.        Report referred to above was adopted by the\nParliamentary Standing Committee on Human Resource\nDevelopment and submitted the same to the Rajya Sabha on\n24.11.1997 and also laid on the Table of the Lok Sabha on\n24.11.1997.    The Lok Sabha was however dissolved soon\nthereafter and elections were declared and that Bill was not\n\f                                                                  50\nfurther pursued.\n10.     The Chairman of the Law Commission who authored\nUnni Krishnan judgment took up the issue suo moto.\nFollowing the ratio in Unni Krishnan, the Law Commission\nsubmitted its 165th Report to the Ministry of Law, Justice and\nCompany Affairs, Union of India vide letter dated 19.11.1998.\nLaw Commission in that letter stated as follows: \"Law\nCommission had taken up the aforesaid subject suo moto\nhaving regard to the Directive Principle of the Constitution of\nIndia as well as the decision of the Supreme Court of India.\"\n11.   Referring to the Constitution (Eighty-third Amendment)\nBill, 1997, Law Commission in its report in paragraph 6.1.4\nstated as under:\n            \"6.1.4 (page 165.35):       The Department of\n      Education may perhaps be right in saying that as\n      of today the private educational institutions which\n      are not in receipt of any grant or aid from the State,\n      cannot be placed under an obligation to impart free\n      education to all the students admitted into their\n      institutions.     However, applying the ratio of\n      Unnikrishnan case, it is perfectly legitimate for the\n      State or the affiliating Board, as the case may be, to\n      require the institution to admit and impart free\n      education to fifty per cent of the students as a\n      condition for affiliation or for permitting their\n      students to appear for the Government\/Board\n      examination. To start with, the percentage can be\n\f                                                              51\nprescribed as twenty. Accordingly, twenty per cent\nstudents could be selected by the concerned\ninstitution in consultation with the local authorities\nand the parent-teacher association. This proposal\nwould enable the unaided institutions to join the\nnational endeavour to provide education to the\nchildren of India and to that extent will also help\nreduce the financial burden upon the State.\"\n(emphasis supplied)\n12.    The Law Commission which had initiated the\nproceedings suo moto in the light of Unni Krishnan\nsuggested deletion of clause (3) from Article 21A\nstating as follows:         \"So far as clause (3) is\nconcerned, the Law Commission states that it\nshould be totally recast on the light of the basic\npremise of the decision in Unni Kirshnan which\nhas been referred to hereinabove. It would neither\nbe    advisable     nor   desirable    that   the   unaided\neducational       institutions   are   kept   outside   the\nproposed Article altogether while the sole primary\nobligation to provide education is upon the State,\nthe educational institutions, whether aided or\nunaided supplement this effort.\"\nPara 6.6.2 of the report reads as under:\n\"6.6.2. The unaided institutions should be made\naware that recognition, affiliation or permission to\n\f                                                              52\n      send     their   children    to    appear   for  the\n      Government\/Board examination also casts a\n      corresponding social obligation upon them towards\n      the society. The recognition\/affiliation\/permission\n      aforesaid is meant to enable them to supplement\n      the effort of the State and not to enable them to\n      make money.          Since they exist and function\n      effectively          because          of        such\n      recognition\/affiliation\/permission granted by public\n      authorities, they must and are bound to serve the\n      public interest.     For this reason, the unaided\n      educational institutions must be made to impart\n      free education to 50% of the students admitted to\n      their institutions. This principle has already been\n      applied to medical, engineering and other colleges\n      imparting professional education and there is no\n      reason       why       the      schools    imparting\n      primary\/elementary education should not be placed\n      under the same obligation. Clause (3) of proposed\n      Article 21A may accordingly be recast to give effect\n      to the above concept and obligation.\"\n     Reference may also be made to the following paragraphs\nof the Report:\n      \"6.8.      The aforesaid bill was referred by the\n      Chairman, Rajya Sabha to the Department-Related\n      Parliamentary Standing Committee on Human\n      Resources Development.        A press communiqu\u00e9\n      inviting suggestions\/views was issued on 18 th\n      August, 1997. The Committee considered the Bill in\n      four sittings and heard oral evidence. It adopted the\n      draft report at its meeting held on 4 th November,\n      1997. The report was then presented to the Rajya\n      Sabha on 24th November, 1997 and laid on the table\n      of the Lok Sabha on the same day. Unfortunately,\n      the Lok Sabha was dissolved soon thereafter and\n      elections were called.\n      6.8.1.  The Budget Session after the new Lok\n      Sabha was constituted is over. There is, however,\n\f                                                                     53\n      no indication whether the Government is inclined to\n      pursue the pending bill.\n      6.9. The question is debatable whether it is at all\n      necessary to amend the Constitution when there is\n      an explicit recognition of the right to education till\n      the age of fourteen years by the Supreme Court in\n      Unni Krishnan's case. As the said judgment can be\n      overruled by a larger Bench in another case, thus\n      making this right to education vulnerable, it would\n      appear advisable to give this right constitutional\n      sanctity.\"\n13.    Law Commission was giving effect to the ratio of Unni\nKrishnan and made suggestions to bring in Article 21A\nmainly on the basis of the scheme framed in Unni Krishnan\nproviding \"free seats\" in private educational institutions.\n14.          The Law Commission report, report of the\nParliamentary    Standing   Committee,     judgment    in     Unni\nKrishnan etc. were the basis on which the Constitution\n(Ninety-third Amendment) Bill, 2001 was prepared and\npresented. Statement of objects and reasons of the Bill given\nbelow would indicate that fact:\n      \"2. With a view to making right to education free\n      and compulsory education a fundamental right, the\n      Constitution (Eighty-third Amendment ) Bill, 1997\n      was introduced in the Parliament to insert a new\n      article, namely, Article 21A conferring on all\n      children in the age group of 6 to14 years the right to\n      free and compulsory education. The said Bill was\n\f                                                                54\n      scrutinized   by    the    Parliamentary      Standing\n      Committee on Human Resource Development and\n      the subject was also dealt with in its 165 th Report by\n      the Law Commission of India.\n      3. After taking into consideration the report of the\n      Law Commission of India and the recommendations\n      of the Standing Committee of Parliament, the\n      proposed amendments in Part III, Part IV and Part\n      IVA of the Constitution are being made which are as\n      follows:\n      (a) to provide for free and compulsory education to\n      children in the age group of 6 to 14 years and for\n      this purpose, a legislation would be introduced in\n      parliament after the Constitution (Ninety-third\n      Amendment) Bill, 2001 is enacted;\n      (b) to provide in article 45 of the Constitution that\n      the State shall endeavour to provide early childhood\n      care and education to children below the age of six\n      years; and\n      (c) to amend article 51A of the Constitution with a\n      view to providing that it shall be the obligation of\n      the parents to provide opportunities for education to\n      their children.\n      4. The Bill seeks to achieve the above objects.\"\n15.     The above Bill was passed and received the assent of\nthe President on 12.12.2002 and was published in the\nGazette of India on 13.12.2002 and the following provisions\nwere inserted in the Constitution; by the Constitution\n(Eighty-sixth Amendment) Act, 2002.\n      Part III \u00ad Fundamental Rights\n\f                                                                  55\n      \"21A.     Right to Education.\u00ad The State shall\n      provide free and compulsory education to all\n      children of the age of six to fourteen years in such\n      manner as the State may, by law, determine.\n         Part IV \u00ad Directive Principles of State Policy\n      45. Provision for early childhood care and\n      education to children below the age of six\n      years.\u00ad The State shall endeavour to provide early\n      childhood care and education for all children until\n      they complete the age of six years.\n      Part IVA \u00ad Fundamental Duties\n      51A. Fundamental duties - It shall be the duty of\n      every citizen of India \u00ad\n                 xxx       xxx        xxx\n      (k) who is a parent or guardian to provide\n      opportunities for education to his child or, as the\n      case may be, ward between the age of six and\n      fourteen years.\"\n16.      Reference was earlier made to the Parliamentary\nStanding Committee Report, 165th Law Commission Report,\n1998 and the opinion expressed by the Department of\nEducation so as to understand the background of the\nintroduction of Article 21A which is also necessary to properly\nunderstand the scope of the Act.    In Herron v. Rathmines\nand Rathgar Improvement Commissioners [1892] AC 498\nat p. 502, the Court held that the subject-matter with which\nthe Legislature was dealing, and the facts existing at the time\n\f                                                                    56\nwith respect to which the Legislature was legislating are\nlegitimate topics to consider in ascertaining what was the\nobject and purpose of the Legislature in passing the Act. In\nMithilesh Kumari and Another v. Prem Behari Khare\n[(1989) 2 SCC 95], this Court observed that \"where a\nparticular   enactment    or   amendment   is   the   result   of\nrecommendation of the Law Commission of India, it may be\npermissible to refer to the relevant report.\"    (See also Dr.\nBaliram Waman Hiray v. Justice B. Lentin and Others\n[(1988) 4 SCC 419], Santa Singh v. State of Punjab [(1976)\n4 SCC 190], Ravinder Kumar Sharma v. State of Assam\n[(1999) 7 SCC 435].\nUNNI KRISHNAN:\n17. Unni Krishnan had created mayhem and raised thorny\nissues on which the Law Commission had built up its edifice,\nsuo moto. The Law Commission had acknowledged the fact\nthat but for the ratio in Unni Kirshnan the unaided private\neducational institutions would have no obligation to impart\nfree and compulsory education to the children admitted in\ntheir institutions.   Law Commission was also of the view that\nthe ratio in Unni Krishnan had legitimized the State or the\naffiliating Board to require unaided educational institutions to\n\f                                                                57\nprovide free education, as a condition for affiliation or for\npermitting the students to appear for the Government\/Board\nexamination.\n18.      Unni Krishnan was questioned contending that it had\nimposed unreasonable restrictions under Article 19(6) of the\nConstitution on the administration of the private educational\ninstitutions and that the rights of minority communities\nguaranteed under Article 29 and Article 30 were eroded.\nUnni Krishnan scheme which insisted that private unaided\neducational institutions should provide for \"free seats\" as a\ncondition for recognition or affiliation was also questioned\ncontending that the same would amount to nationalisation of\nseats.\nPAI FOUNDATION\n19.    T.M.A. Pai Foundation and others v. State of\nKarnataka and others [(2002) 8 SCC 481] examined the\ncorrectness of the ratio laid down in Unni Krishnan and also\nthe validity of the scheme.     The correctness of the rigid\npercentage of reservation laid down in St. Stephen's College\nv. University of Delhi [(1992) 1 SCC 558] in the case of\n\f                                                                         58\nminority aided educational institutions and the meaning and\ncontents of Articles 30 and 29(2) were also examined.\n20.     Pai Foundation acknowledged the right of all citizens\nto practice any profession, trade or business under Article\n19(1)(g) and Article 26 and held those rights would be subject\nto the provisions that were placed under Article 19(6) and\n26(a) and the rights of minority to establish and administer\neducational institutions under Article 30 was also upheld.\n21.     Unni Krishnan scheme was held unconstitutional, but\nit was ordered that there should be no capitation fee or\nprofiteering and reasonable surplus to meet the cost of\nexpansion and augmentation of facilities would not mean\nprofiteering. Further, it was also ordered that the expression\n\"education\" in all the Articles of the Constitution would mean\nand include education at all levels, from primary education\nlevel   up   to    post   graduate   level   and    the   expression\n\"educational      institutions\"   would   mean     institutions   that\nimpart education as understood in the Constitution.\n22.       Pai Foundation has also recognised that the\nexpression \"occupation\" in Article 19(1)(g) is an activity of a\nperson undertaken as a means of livelihood or a mission in\nlife and hence charitable in nature and that establishing and\n\f                                                                   59\nrunning an educational institution is an occupation, and in\nthat process a reasonable revenue surplus can be generated\nfor the purpose of development of education and expansion of\nthe institutions.    The right to establish and administer\neducational   institutions,   according   to   Pai   Foundation,\ncomprises right to admit students, set up a reasonable fee\nstructure, constitute a governing body, appoint staff, teaching\nand non-teaching and to take disciplinary action. So far as\nprivate unaided educational institutions are concerned, the\nCourt held that maximum autonomy has to be with the\nmanagement with regard to administration, including the\nright of appointment, disciplinary powers, admission of\nstudents and the fee to be charged etc. and that the authority\ngranting recognition or affiliation can certainly lay down\nconditions for the grant of recognition or affiliation but those\nconditions must pertain broadly to academic and educational\nmatters and welfare of students and teachers. The Court held\nthat the right to establish an educational institution can be\nregulated but such regulatory measures must be in general to\nensure   proper     academic    standards,     atmosphere   and\ninfrastructure and prevention of maladministration.         The\nnecessity of starting more quality private unaided educational\n\f                                                                     60\ninstitutions in the interest of general public was also\nemphasised by the Court by ensuring autonomy and non-\nregulation   in   the   school   administration,   admission    of\nstudents and fee to be charged. Pai Foundation rejected the\nview that if a private school is allowed to charge fee\ncommensurate with the fee affordable, the degrees would be\npurchasable as unfounded since the standards of education\ncan be and are controllable through recognition, affiliation\nand common final examination.         Casting burden on other\nstudents to pay for the education of others was also\ndisapproved by Pai Foundation holding that there should be\nno cross-subsidy.\n23.    Pai Foundation has also dealt with the case of private\naided professional institutions, minority and non-minority,\nand also other aided institutions and stated that once aid is\ngranted to a private professional educational institution, the\ngovernment or the state agency, as a condition of the grant of\naid, can put fetters on the freedom in the matter of\nadministration and management of the institution.              Pai\nFoundation also acknowledged that there are large number\nof educational institutions, like schools and non-professional\ncolleges, which cannot operate without the support of aid\n\f                                                                    61\nfrom the state and the Government in such cases, would be\nentitled to make regulations relating to the terms and\nconditions of employment of the teaching and non-teaching\nstaff. In other words, autonomy in private aided institutions\nwould be less than that of unaided institutions.\n24.    Pai Foundation also acknowledged the rights of the\nreligious and linguistic minorities to establish and administer\neducational institutions of their choice under Article 30(1) of\nthe Constitution and held that right is not absolute as to\nprevent      the   government   from   making   any   regulation\nwhatsoever. The Court further held that as in the case of a\nmajority run institution, the moment a minority institution\nobtains a grant or aid, Article 28 of the Constitution comes\ninto play.\n25.   Pai Foundation further held that the ratio laid down in\nSt. Stephen is not correct and held that even if it is possible\nto fill up all the seats with students of the minority group, the\nmoment the institution is granted aid, the institution will\nhave to admit students of the non-minority group to a\nreasonable extent, whereby the character of the institution is\nnot annihilated, and at the same time, the rights of the citizen\nengrafted under Article 29(2) are not subverted. The judgment\n\f                                                                     62\nin    Pai   Foundation      was      pronounced   on   31.10.2002,\n25.11.2002 and Article 21A, new Article 45 and Article 51A(k)\nwere inserted in the Constitution on 12.12.2002, but the\nbasis for the introduction of Article 21A and the deletion of\noriginal clause (3) from Article 21A, was due to the judgment\nof Unnikrishnan.           Parliament, it may be noted, was\npresumed to be aware of the judgment in Pai Foundation,\nand hence, no obligation was cast on unaided private\neducational institutions but only on the State, while inserting\nArticle 21A.\n26.             The judgment in Pai Foundation, after the\nintroduction of the above mentioned articles, was interpreted\nby    various    Courts,     State     Governments,    educational\ninstitutions in different perspectives leading to the enactment\nof various statutes and regulations as well, contrary to each\nother. A Bench of five Judges was, therefore, constituted to\nclarify certain doubts generated out of the judgment in Pai\nFoundation and its application. Rights of unaided minority\nand non-minority institutions and restrictions sought to be\nimposed by the State upon them were the main issues before\nthe Court and not with regard to the rights and obligations of\nprivate aided institutions run by minorities and non-\n\f                                                                 63\nminorities. The five Judges' Bench rendered its judgment on\n14.8.2003 titled Islamic Academy of Education and\nanother v. State of Karnataka and others [(2003) 6 SCC\n697].       Unfortunately, Islamic Academy created more\nproblems and confusion than solutions and, in order to steer\nclear from that predicament, a seven Judges Bench was\nconstituted and the following specific questions were referred\nfor its determination:\n            \"(1) To what extent the State can regulate the\n        admissions made by unaided (minority or non-\n        minority) educational institutions? Can the State\n        enforce its policy of reservation and\/or appropriate\n        to itself any quota in admissions to such\n        institutions?\n                                          (emphasis supplied)\n            (2) Whether unaided (minority and non-\n        minority) educational institutions are free to devise\n        their own admission procedure or whether direction\n        made in Islamic Academy for compulsorily holding\n        entrance test by the State or association of\n        institutions and to choose therefrom the students\n        entitled to admission in such institutions, can be\n        sustained in light of the law laid down in Pai\n        Foundation?\n            (3) Whether Islamic Academy could have\n        issued guidelines in the matter of regulating the fee\n        payable by the students to the educational\n        institutions?\n            (4) Can the admission procedure and fee\n        structure be regulated or taken over by the\n        Committees ordered to be constituted by Islamic\n        Academy?\"\n\f                                                                       64\n27.       Above mentioned questions were answered in P.A.\nInamdar and others v. State of Maharashtra and others\n[(2005) 6 SCC 537] and the Court cleared all confusion and\ndoubts, particularly insofar as unaided minority and non-\nminority educational institutions are concerned.\n28.       Inamdar specifically examined the inter-relationship\nbetween Articles 19(1)(g), 29(2) and 30(1) of the Constitution\nand held that the right to establish an educational institution\n(which evidently includes schools as well) for charity or a\nprofit,   being an occupation, is protected by Article 19(1)(g)\nwith additional protection to minority communities under\nArticle 30(1).   Inamdar, however, reiterated the fact that,\nonce aided, the autonomy conferred by protection of Article\n30(1) is diluted, as the provisions of Articles 29(2) will be\nattracted and certain conditions in the nature of regulations\ncan legitimately accompany the State aid.                Reasonable\nrestrictions pointed out by Inamdar may be indicated on the\nfollowing    subjects:   (i)   the   professional   or     technical\nqualifications necessary for practicing any profession or\ncarrying on any occupation, trade or business; (ii) the\ncarrying on by the State, or by a corporation owned or\ncontrolled by the State of any trade, business, industry or\n\f                                                                  65\nservice whether to the exclusion, complete or partial of\ncitizens or otherwise.\n29.       Referring to the judgments in Kerala Education\nBill , In Re. 1959 SCR 995 and St. Stephen, the Court took\nthe view that once an educational institution is granted aid or\naspires for recognition, the State may grant aid or recognition\naccompanied by certain restrictions or conditions which must\nbe followed as essential to the grant of such aid or\nrecognition.   Inamdar, as I have already indicated, was\nmainly concerned with the question whether the State can\nappropriate the quota of unaided educational institutions\nboth minority and non-minority. Explaining Pai Foundation,\nthe Court in Inamdar held as follows:\n          \"119. A minority educational institution may\n      choose not to take any aid from the State and may\n      also not seek any recognition or affiliation. It may be\n      imparting such instructions and may have students\n      learning such knowledge that do not stand in need\n      of any recognition. Such institutions would be those\n      where instructions are imparted for the sake of\n      instructions and learning is only for the sake of\n      learning and acquiring knowledge. Obviously, such\n      institutions would fall in the category of those who\n      would exercise their right under the protection and\n      privilege conferred by Article 30(1) \"to their hearts'\n      content\" unhampered by any restrictions excepting\n      those which are in national interest based on\n      considerations such as public safety, national\n      security and national integrity or are aimed at\n\f                                                        66\npreventing exploitation of students or the teaching\ncommunity. Such institutions cannot indulge in any\nactivity which is violative of any law of the land.\n    120. They are free to admit all students of their\nown minority community if they so choose to do.\n(Para 145, Pai Foundation)\n    (ii)   Minority   unaided      educational\ninstitutions   asking   for   affiliation   or\nrecognition\n    121. Affiliation or recognition by the State or\nthe Board or the university competent to do so,\ncannot be denied solely on the ground that the\ninstitution is a minority educational institution.\nHowever, the urge or need for affiliation or\nrecognition brings in the concept of regulation by\nway of laying down conditions consistent with the\nrequirement of ensuring merit, excellence of\neducation and preventing maladministration. For\nexample, provisions can be made indicating the\nquality of the teachers by prescribing the minimum\nqualifications that they must possess and the\ncourses of studies and curricula. The existence of\ninfrastructure sufficient for its growth can be\nstipulated as a prerequisite to the grant of\nrecognition or affiliation. However, there cannot be\ninterference in the day-to-day administration. The\nessential ingredients of the management, including\nadmission of students, recruiting of staff and the\nquantum of fee to be charged, cannot be regulated.\n(Para 55, Pai Foundation)\n    122. Apart from the generalised position of law\nthat the right to administer does not include the\nright to maladminister, an additional source of\npower to regulate by enacting conditions\naccompanying affiliation or recognition exists. A\nbalance has to be struck between the two\nobjectives: (i) that of ensuring the standard of\n\f                                                          67\nexcellence of the institution, and (ii) that of\npreserving the right of the minority to establish and\nadminister its educational institution. Subject to a\nreconciliation of the two objectives, any regulation\naccompanying affiliation or recognition must satisfy\nthe triple tests: (i) the test of reasonableness and\nrationality, (ii) the test that the regulation would be\nconducive to making the institution an effective\nvehicle of education for the minority community or\nother persons who resort to it, and (iii) that there is\nno inroad into the protection conferred by Article\n30(1) of the Constitution, that is, by framing the\nregulation the essential character of the institution\nbeing a minority educational institution, is not\ntaken away. (Para 122, Pai Foundation)\n      (iii) Minority     educational     institutions\nreceiving State aid\n    123. Conditions which can normally be\npermitted to be imposed on the educational\ninstitutions receiving the grant must be related to\nthe proper utilisation of the grant and fulfilment of\nthe objectives of the grant without diluting the\nminority status of the educational institution, as\nheld in Pai Foundation (see para 143 thereof). As\naided institutions are not before us and we are not\ncalled upon to deal with their cases, we leave the\ndiscussion at that only.\n    124. So far as appropriation of quota by the\nState and enforcement of its reservation policy is\nconcerned, we do not see much of a difference\nbetween non-minority and minority unaided\neducational institutions. We find great force in the\nsubmission made on behalf of the petitioners that\nthe States have no power to insist on seat-sharing\nin unaided private professional educational\ninstitutions by fixing a quota of seats between the\nmanagement and the State. The State cannot insist\non private educational institutions which receive no\naid from the State to implement the State's policy\n\f                                                                  68\n      on reservation for granting admission on lesser\n      percentage of marks i.e. on any criterion except\n      merit.\n           125. As per our understanding, neither in the\n      judgment of Pai Foundation nor in the Constitution\n      Bench decision in Kerala Education Bill which was\n      approved by Pai Foundation is there anything which\n      would allow the State to regulate or control\n      admissions in the unaided professional educational\n      institutions so as to compel them to give up a share\n      of the available seats to the candidates chosen by\n      the State, as if it was filling the seats available to be\n      filled up at its discretion in such private\n      institutions. This would amount to nationalisation\n      of seats which has been specifically disapproved in\n      Pai Foundation. Such imposition of quota of State\n      seats or enforcing reservation policy of the State on\n      available seats in unaided professional institutions\n      are acts constituting serious encroachment on the\n      right and autonomy of private professional\n      educational institutions. Such appropriation of\n      seats can also not be held to be a regulatory\n      measure in the interest of the minority within the\n      meaning of Article 30(1) or a reasonable restriction\n      within the meaning of Article 19(6) of the\n      Constitution. Merely because the resources of the\n      State in providing professional education are\n      limited, private educational institutions, which\n      intend to provide better professional education,\n      cannot be forced by the State to make admissions\n      available on the basis of reservation policy to less\n      meritorious candidates. Unaided institutions, as\n      they are not deriving any aid from State funds, can\n      have their own admissions if fair, transparent, non-\n      exploitative and based on merit.\"             (emphasis\n      supplied)\nPai Foundation, it was pointed out by Inamdar, merely\npermitted the unaided private institutions to maintain merit\nas the criterion of admission by voluntarily agreeing for seat\n\f                                                                  69\nsharing with the State or adopting selection based on\ncommon entrance test of the State. Further, it was also\npointed that unaided educational institutions can frame their\nown policy to give free-ships and scholarships to the needy\nand poor students or adopt a policy in line with the\nreservation policy of the state to cater to the educational\nneeds of weaker and poorer sections of the society not out of\ncompulsion, but on their own volition.    Inamdar reiterated\nthat no where in Pai Foundation, either in the majority or in\nthe minority opinion, have they found any justification for\nimposing seat sharing quota by the State on unaided private\nprofessional educational institutions and reservation policy of\nthe State or State quota seats or management seats.\nFurther, it was pointed that the fixation of percentage of\nquota is to be read and understood as possible consensual\narrangements which can be reached between unaided private\nprofessional institutions and the State. State regulations, it\nwas pointed out, should be minimal and only with a view to\nmaintain fairness and transparency in admission procedure\nand to check exploitation of the students by charging\nexorbitant money or capitation fees. Inamdar, disapproved\nthe scheme evolved in Islamic Academy to the extent it\n\f                                                                  70\nallowed States to fix quota for seat sharing between\nmanagement and the States on the basis of local needs of\neach State, in the unaided private educational institutions of\nboth minority and non-minority categories.      Inamdar held\nthat to admit students being one of the components of right\nto establish and administer an institution, the State cannot\ninterfere therewith and upto the level of undergraduate\neducation, the minority unaided educational institutions\nenjoy \"total freedom\".   Inamdar emphasised the fact that\nminority   unaided    institutions   can   legitimately   claim\n\"unfettered fundamental right\" to choose the students to be\nallowed admissions and the procedure therefore subject to its\nbeing fair, transparent and non-exploitative and the same\nprinciple applies to non-minority unaided institutions as well.\nInamdar also found foul with the judgment in Islamic with\nregard to the fixation of quota and for seat sharing between\nthe management and the State on the basis of local needs of\neach State in unaided private educational institutions, both\nminority and non-minority.       Inamdar noticed that Pai\nFoundation also found foul with the judgment in Unni\nKrishnan and held that admission of students in unaided\nminority educational institutions\/schools where scope for\n\f                                                                   71\nmerit based is practically nil cannot be regulated by the State\nor University except for providing the qualification and\nminimum condition of eligibility in the interest of academic\nstandards.\n30.     Pai Foundation as well as Inamdar took the view\nthat laws of the land including rules and regulations must\napply equally to majority as well as minority institutions and\nminority institutions must be allowed to do what majority\ninstitutions are allowed to do.   Pai Foundation examined\nthe expression \"general laws of the land\" in juxtaposition\nwith \"national interest\" and stated in Para 136 of the\njudgment that general laws of land applicable to all persons\nhave been held to be applicable to the minority institutions\nalso, for example, laws relating to taxation, sanitation, social\nwelfare, economic regulations, public order and morality.\n31.    While examining the scope of Article 30, this fact was\nspecifically referred to in Inamdar (at page 594) and took the\nview that, in the context of Article 30(1), no right can be\nabsolute and no community can claim its interest above\nnational interest.   The expression \"national interest\" was\nused in the context of respecting \"laws of the land\", namely,\nwhile imposing restrictions with regard to laws relating to\n\f                                                                72\ntaxation, sanitation, social welfare, economic legislation,\npublic order and morality and not to make an inroad into the\nfundamental rights guaranteed under Article 19(1)(g) or\nArticle 30(1) of the Constitution.\n32.      Comparing the judgments in Inamdar and Pai\nFoundation, what emerges is that so far as unaided\neducational institutions are concerned, whether they are\nestablished and administered by minority or non-minority\ncommunities, they have no legal obligation in the matter of\nseat sharing and upto the level of under-graduate education\nthey enjoy total freedom. State also cannot compel them to\ngive up a share of the available seats to the candidates\nchosen by the State. Such an appropriation of seats, it was\nheld, cannot be held to be a regulatory measure in the\ninterest of minority within the meaning of Article 30(1) or a\nreasonable restriction within the meaning of Article 19(6) of\nthe Constitution since they have unfettered fundamental\nright and total freedom to run those institutions subject to\nthe law relating to taxation, sanitation, social welfare,\neconomic legislation, public order and morality.\n33.    Pai Foundation was examining the correctness of the\nratio in Unni Krishnan, which I have already pointed out,\n\f                                                                   73\nwas the basis for the insertion of Article 21A and the deletion\nof clause (3) of the proposed Article 21A.          Inamdar also\nnoticed that Pai Foundation had struck down ratio of Unni\nKrishnan which invaded the rights of unaided educational\ninstitutions by framing a scheme.     Article 21A envisaged a\nsuitable legislation so as to achieve the object of free and\ncompulsory education to children of the age 6 to 14 years\nand imposed obligation on the State, and not on unaided\neducational institutions.\n34.    Parliament, in its wisdom, brought in a new legislation\nRight to Education Act to provide free and compulsory\neducation to children of the age 6 to 14 years, to discharge\nthe constitutional obligation of the State, as envisaged under\nArticle 21A.   Provisions have also been made in the Act to\ncast the burden on the non-state actors as well, to achieve\nthe goal of Universal Elementary Education. The statement of\nobjects and reasons of the Bill reads as follows:\n      \"4. The proposed legislation is anchored in the\n      belief that the values of equality, social justice and\n      democracy and the creation of a just and humane\n      society can be achieved only through provision of\n      inclusive elementary education to all. Provision of\n      free and compulsory education of satisfactory\n      quality to children from disadvantaged and weaker\n      sections is, therefore, not merely the responsibility\n      of schools run or supported by the appropriate\n\f                                                                    74\n        Governments, but also of schools which are not\n        dependent on Government funds.\"\n35.       The Bill was introduced in the Rajya Sabha which\npassed the Bill on 20.7.2009 and in Lok Sabha on 4.8.2009\nand received the assent of the President on 26.8.2009 and\nwas published in the Gazette of India on 27.8.2009.\n36.      Learned Attorney General of India submitted that the\nvalues of equality, social justice and democracy and the\ncreation of just and humane society can be achieved only\nthrough a provision of inclusive elementary education by\nadmitting children belonging to disadvantaged group and\nweaker sections of the society which is not only the\nresponsibility of the state and institutions supported by the\nstate   but   also   schools   which   are   not   dependent   on\ngovernment funds. Learned Attorney General also submitted\nthat the state has got an obligation and a duty to enforce the\nfundamental rights guaranteed to children of the age of 6 to\n14 years for free and compulsory education and is to achieve\nthat objective, the Act was enacted.           Learned Attorney\nGeneral submitted that Article 21A is a socio-economic right\nwhich must get priority over rights under Article 19(1)(g) and\nArticle 30(1), because unlike other rights it does not operate\n\f                                                                     75\nmerely as a limitation on the powers of the state but it\nrequires affirmative state action to protect and fulfil the rights\nguaranteed to children of the age of 6 to 14 years for free and\ncompulsory education.       Reference was also made to the\njudgments of this Court in Indian Medical Association v.\nUnion of India and others [(2011) 7 SCC 179] (in short\nMedical Association case), Ahmedabad St. Xavier's College\nSociety and Another v. State of Gujarat and Another\n[(1974) 1 SCC 717], Rev. Sidhajbhai Sabhai and Others v.\nState of Bombay and Another [(1963) 3 SCR 837] and In\nre. Kerala Education Bill (supra).\n37.    Learned Additional Solicitor General in her written as\nwell as oral submissions stated that Article 21A must be\nconsidered as a stand alone provision and not subjected to\nArticle 19(1)(g) and Article 30(1) of the Constitution. Article\n19(1)(g) and Article 30(1), it was submitted, dealt with the\nsubject of right to carry on occupation of establishing and\nadministering educational institutions, while Article 21A\ndeals exclusively with a child's right to primary education.\nArticle 21A, it was pointed out, has no saving clause which\nindicates that it is meant to be a complete, standalone clause\non the subject matter of the right to education and is\n\f                                                                     76\nintended to exclude the application of Article 19(1)(g) and\nArticle 30(1).   Learned Additional Solicitor General submitted\nthat omission of clause (3) in the original proposed Article\n21A would indicate that the intention of the Parliament was\nto apply the mandate of Article 21A to all the educational\ninstitutions, public or private, aided or unaided, minority or\nnon-minority.\n38.      Mrs. Menaka Guruswamy and Mrs. Jayna Kothari,\nappearing for the intervener namely The Azim Premji\nFoundation, in I.A. No. 7 in W.P. (C) No. 95\/2010, apart from\nother contentions, submitted that Article 21A calls for\nhorizontal application of sanction on state actors so as to give\neffect to the fundamental rights guaranteed to the people.\nLearned counsels submitted that Sections 15(2), 17, 18, 23\nand 24 of the Constitution expressly impose constitutional\nobligations on non-state actors and incorporate the notion of\nhorizontal application of rights.      Reference was also made to\nthe   judgment     of   this   Court   in   People's   Union   for\nDemocratic Rights and Others v. Union of India and\nOthers [(1982) 3 SCC 235] and submitted that many of the\nfundamental rights enacted in Part III, such as Articles 17, 23\nand 24, among others, would operate not only against the\n\f                                                                77\nState but also against other private persons.   Reference was\nalso made to the judgment of this Court Vishaka and\nOthers v. State of Rajasthan [(1997) 6 SCC 241], in which\nthis Court held that all employees, both public and private,\nwould take positive steps not to infringe the fundamental\nrights guaranteed to female employees under Articles 14, 15,\n21 and 19(1)(g) of the Constitution. Reference was also made\nto Article 15(3) and submitted that the Constitution permits\nthe State to make special provisions regarding children.\nFurther, it was also contended that Articles 21A and 15(3)\nprovide the State with Constitutional instruments to realize\nthe object of the fundamental right to free and compulsory\neducation even through non-state actors such as private\nschools.\n39.   Shri Rajeev Dhavan, learned senior counsel appearing\non behalf of some of the petitioners, submitted that Article\n21A casts an obligation on the state and state alone to\nprovide free and compulsory education to children upto the\nage of 6 to 14 years, which would be evident from the plain\nreading of Article 21A read with Article 45. Learned senior\ncounsel submitted that the words \"state shall provide\" are\nexpress enough to reveal the intention of the Parliament.\n\f                                                                                   78\nFurther, it was stated that the constitutional provision never\nintended to cast responsibility on the private educational\ninstitutions along with the State, if that be so like Article\n15(5), it would have been specifically provided so in Article\n21A. Article 21A or Article 45 does not even remotely indicate\nany idea of compelling the unaided educational institutions to\nadmit children from the neighbourhood against their wish\nand   in    violation       of        the   rights    guaranteed     under   the\nConstitution. Learned senior counsel submitted that since no\nconstitutional obligation is cast on the private educational\ninstitutions under Article 21A, the State cannot through a\nlegislation transfer its constitutional obligation on the private\neducational institutions. Article 21A, it was contended, is not\nsubject to any limitation or qualification so as to offload the\nresponsibility    of    the           State   on     the   private   educational\ninstitutions     so    as        to     abridge      the   fundamental    rights\nguaranteed to them under Article 19(1)(g), Article 26(a),\nArticle 29(1) and Article 30(1) of the Constitution.\n40.        Learned senior counsel submitted that Article 21A is\nnot meant to deprive the above mentioned core rights\nguaranteed to the petitioners and if the impugned provisions\nof the Act do so, to that extent, they may be declared\n\f                                                                   79\nunconstitutional. Learned senior counsel submitted that the\n\"core individual rights\" always have universal dimension and\nthus represent universal value while \"socio-economic rights\"\nenvisaged the sectional interest and the core individual right,\nbecause of its universal nature, promote political equality and\nhuman dignity and hence must promote precedence over the\nsocio-economic    rights.    Learned    senior   counsel   also\nsubmitted that constitutional concept and the constitutional\ninterpretation given by Pai Foundation and Inamdar cannot\nbe undone by legislation.    Learned counsel also submitted\nthat the concept of social inclusiveness has to be achieved\nnot by abridging or depriving the fundamental rights\nguaranteed to the citizens who have established and are\nadministering their institutions without any aid or grant but\ninvesting their own capital. The principles stated in Part IV of\nthe Constitution and the obligation cast on the State under\nArticle 21A, it was contended, are to be progressively achieved\nand realised by the State and not by non-state actors and\nthey are only expected to voluntarily support the efforts of the\nstate.\n41.      Shri T.R. Andhyarujina, learned senior counsel\nappearing for some of the minority institutions submitted\n\f                                                                 80\nthat the object of Articles 25 to 30 of the Constitution is to\npreserve the rights of religious and linguistic minorities and\nto place them on a secure pedestal and withdraw them from\nthe vicissitudes of political controversy.    Learned senior\ncounsel submitted that the very purpose of incorporating\nthose rights in Part-III is to afford them guarantee and\nprotection and not to interfere with those rights except in\nlarger public interest like health, morality, public safety,\npublic order etc. Learned senior counsel extensively referred\nto various provisions of the Act, and submitted that they\nwould make serious inroad into the rights guaranteed to the\nminority communities.     Learned counsel further submitted\nthat Section 12(1)(b) and 12(1)(c) in fact, completely take\naway the rights guaranteed to minority communities, though\nwhat was permitted by this Court was only \"sprinkling of\noutsiders\" that is members of all the communities. Counsel\nsubmitted that the mere fact that some of the institutions\nestablished and administered by the minority communities\nhave been given grant or aid, the State cannot take away the\nrights guaranteed to them under Article 30(1) of the\nConstitution of India.     Learned counsel submitted that\nArticle 21A read with Article 30(1) also confers a right on a\n\f                                                                       81\nchild    belonging   to   minority    community    for   free   and\ncompulsory      education    in      an   educational    institution\nestablished and administered by the minority community for\ntheir own children and such a constitutionally guaranteed\nright cannot be taken away or abridged by law.\nPART II\nArticle 21A and RTE Act\n42.     Right to education, so far as children of the age 6 to 14\nyears are concerned, has been elevated to the status of\nfundamental right under Article 21A and a corresponding\nobligation has been cast on the State, but through Sections\n12(1)(b) and 12(1)(c) of the Act the constitutional obligation of\nthe State is sought to be passed on to private educational\ninstitutions on the principle of social inclusiveness. Right to\nEducation has now been declared as a fundamental right of\nchildren of the age 6 to 14 years and other comparable rights\nor even superior rights like the Right to food, healthcare,\nnutrition, drinking water, employment, housing, medical care\nmay also get the status of fundamental rights, which may be\non the anvil.   Right guaranteed to children under Article 21A\nis a socio-economic right and the Act was enacted to fulfil\nthat right. Let us now examine how these rights have been\n\f                                                                        82\nrecognized and given effect to under our Constitution and in\nother countries.\n43.    Rights traditionally have been divided into civil rights,\npolitical rights and socio-economic rights; the former rights\nare often called the first generation rights and the latter, the\nsecond generation rights.       First generation rights have also\nbeen described as negative rights because they impose a duty\nand restraint on the state and generally no positive duties\nflow from them with some exceptions. Over lapping of both\nthe rights are not uncommon. It is puerile to think that the\nformer rights can be realised in isolation of the latter or that\none overrides the others.\n44.     Socio-economic rights generally serve as a vehicle for\nfacilitating   the   values   of   equality,   social   justice   and\ndemocracy and the state is a key player in securing that goal.\nThe preamble of the Indian Constitution, fundamental rights\nin Part III and the Directive Principles of State Policy in Part\nIV are often called and described as \"conscience of the\nConstitution\" and they reflect our civil, political and socio-\neconomic rights which we have to protect for a just and\nhumane society.\n45.       Supreme       Court      through       various     judicial\n\f                                                                   83\npronouncements has made considerable headway in the\nrealization   of   socio-economic   rights   and   made   them\njusticiable despite the fact that many of those rights still\nremain as Directive Principles of State Policy. Civil, political\nand socio-economic rights find their expression in several\ninternational conventions like U.N. Convention on Economic,\nSocial and Cultural Rights 1966 (ICESCR), International\nCovenant on        Civil and Political Rights 1966 (ICCPR),\nUniversal Declaration of Human Rights 1948 (UDHR), United\nNations Convention on Rights of Child 1989 (UNCRC)etc.\nReference to some of the socio-economic rights incorporated\nin the Directive Principles of the State Policy in this\nconnection is useful. Article 47 provides for duty of the State\nto improve public health. Principles enshrined in Articles 47\nand 48 are not pious declarations but for guidance and\ngovernance of the State policy in view of Article 37 and it is\nthe duty of the State to apply them in various fact situations.\n46.   Supreme Court has always recognized Right to health as\nan integral part of right to life under Article 21 of the\nConstitution. In Consumer Education &amp; Research Centre\nand Others v.       Union of India and others [(1995) 3 SCC\n\f                                                                  84\n42], this Court held that the right to life meant a right to a\nmeaningful life, which is not possible without having right to\nhealthcare.    This Court while dealing with the right to\nhealthcare of persons working in the asbestos industry read\nthe provisions of Articles 39, 41 and 43 into Article 21. In\nPaschim Banga Khet Majdoor Samity and Others v.\nState of West Bengal and Another [(1996) 4 SCC 37], this\nCourt not only declared Right to health as a Fundamental\nRight but enforced that right by asking the State to pay\ncompensation for the loss suffered and also to formulate a\nblue-print for primary health care with particular reference to\nthe treatment of patients during emergency.         A note of\ncaution was however struck in State of Punjab and Others\nv. Ram Lubhaya Bagga and Others [(1998) 4 SCC 117]\nstating that no State or country can have unlimited resources\nto spend on any of its projects and the same holds good for\nproviding medical facilities to citizens. In Social Jurist, A\nLawyers Group v. Government Of NCT Of Delhi and\nOthers [(140) 2007 DLT 698], a Division Bench of Delhi High\nCourt, of which one of us, Justice Swatanter Kumar was a\nparty, held that the wider interpretations given to Article 21\nread with Article 47 of the Constitution of India are not only\n\f                                                                       85\nmeant for the State but they are equally true for all, who are\nplaced at an advantageous situation because of the help or\nallotment of vital assets.        Dharamshila Hospital &amp;\nResearch    Centre    v.   Social Jurist      &amp; Ors.; SLP        (C)\nNo.18599 of 2007 decided on 25.07.2011 filed against the\njudgment was dismissed by this Court directing that\npetitioners' hospitals to provide medical care to a specified\npercentage of poor patients since some of the private\nhospitals are situated on lands belonging to the State or\ngetting other concessions from the State.\n47.     Right to shelter or housing is also recognized as a\nsocio-economic right which finds its expression in Article 11\nof the ICESCR but finds no place in Part-III or Part-IV of our\nConstitution. However, this right has been recognized by this\nCourt in several judgments by giving a wider meaning to\nArticle 21 of the Constitution. In Olga Tellis and Others v.\nBombay Municipal Corporation and Others [(1985) 3 SCC\n545], this Court was considering the claims of evictees from\ntheir   slums   and   pavement    dwellings    on   the   plea   of\ndeprivation of right to livelihood and right to life. Their claim\nwas not fully accepted by this Court holding that no one has\n\f                                                                   86\nthe right to use a public property for private purpose without\nrequisite authorization and held that it is erroneous to\ncontend that pavement dwellers have the right to encroach\nupon the pavements by constructing dwellings thereon.        In\nMunicipal Corporation of Delhi v. Gurnam Kaur [(1989) 1\nSCC 101], this Court held that Municipal Corporation of\nDelhi has no legal obligation to provide pavement squatters\nalternative shops for rehabilitation as the squatters had no\nlegally enforceable right.   In Sodan Singh and Others v.\nNew Delhi Municipal Committee and Others [(1989) 4 SCC\n155], this Court negated the claim of citizens to occupy a\nparticular place on the pavement to conduct a trade, holding\nthe same cannot be construed as a fundamental right. Socio-\neconomic compulsions in several cases did not persuade this\nCourt to provide reliefs in the absence of any constitutional or\nstatutory right.   A different note was however struck in\nAhmedabad Municipal Corporation v. Nawab Khan Gulab\nKhan and Others [(1997) 11 SCC 121] in the context of\neviction of encroachers from the city of Ahmedabad.        This\nCourt held though Articles 38, 39 and 46 mandate the State,\nas its economic policy, to provide socio-economic justice, no\nperson has a right to encroach and erect structures otherwise\n\f                                                                    87\non foot-paths, pavements or public streets.      The Court has\nhowever opined that the State has the constitutional duty to\nprovide adequate facilities and opportunities by distributing\nits wealth and resources for settlement of life and erection of\nshelter over their heads to make the right to life meaningful.\n48.   Right to work does not oblige the State to provide work\nfor livelihood which has also been not recognized as a\nfundamental    right.    Mahatma     Gandhi      National   Rural\nEmployment     Guarantee    Act,   2005   (Act    42   of   2005)\nguarantees at least 100 days of work in every financial year to\nevery household whose adult members volunteer manual\nwork on payment of minimum wages.             Article 41 of the\nConstitution provides that State shall, within the limits of its\neconomic capacity and development, make effective provision\nfor securing the right to work, to education and to public\nassistance in cases of unemployment, old age, sickness and\ndisablement, which right is also reflected in Article 6 of\nICESCR.    Article 38 of Part-IV states that the State shall\nstrive to promote the welfare of the people and Article 43\nstates that it shall endeavour to secure a living wage and a\ndecent standard of life to all workers.   In Bandhua Mukti\n\f                                                                    88\nMorcha v. Union of India and Others [(1984) 3 SCC 161], a\nPublic Interest Litigation, an NGO highlighted the deplorable\ncondition of bonded labourers in a quarry in Haryana. It was\npointed out that a host of protective and welfare oriented\nlabour legislations, including Bonded Labour (Abolition) Act,\n1976 and the Minimum Wages Act, 1948were not followed.\nThis Court gave various directions to the State Government to\nenable it to discharge its constitutional obligation towards\nbonded labourers.    This Court held that right to live with\nhuman dignity enshrined in Article 21 derives its life breath\nfrom the Directive Principles of State Policy, particularly\nclauses (e) and (f) of Article 39 and Articles 41 and 42 and\nheld that it must include protection of the health and\nstrength of workers, men and women and of the tender age of\nchildren against abuse, opportunities and facilities for\nchildren to develop in a healthy manner and in conditions of\nfreedom and dignity, educational facilities, just and humane\nconditions of work and maternity relief.\n49.       The Constitutional Court of South Africa rendered\nseveral   path-breaking   judgments   in   relation   to   socio-\neconomic rights. Soobramoney v. Minister of Health\n\f                                                                          89\n(KwaZulu-Natal) [1998 (1) SA 765 (CC)] was a case\nconcerned with the right of emergency health services. Court\nheld that the State owes no duty to provide the claimant, a\ndiabetic sufferer, with kidney dialysis on a plea of socio-\neconomic right.       Petitioner was denied dialysis by a local\nhospital on the basis of a prioritization policy based on\nlimited      resources.      The   Court    emphasised       that   the\nresponsibility of fixing the health care budget and deciding\npriorities     lay   with   political   organization   and    medical\nauthorities, and that the court would be slow to interfere with\nsuch decisions if they were rational and \"taken in good faith\".\n50.       In Government of the Republic of South Africa and\nOthers v. Grootboom and others [2001 (1) SA 46 (CC)] was a\ncase where the applicants living under appalling conditions in\nan informal settlement, had moved into private land from\nwhich they were forcibly evicted. Camping on a nearby sports\nfield, they applied for an order requiring the government to\nprovide them with basic shelter.           The Constitutional Court\ndid not recognize a directly enforceable claim to housing on\nthe part of the litigants, but ruled that the State is obliged to\nimplement a reasonable policy for those who are destitute.\n\f                                                                    90\nThe Court, however, limited its role to that of policing the\npolicy making process rather than recognizing an enforceable\nindividual right to shelter, or defining a minimum core of the\nright to be given absolute priority.\n51.       Another notable case of socio-economic right dealt with\nby the South African Court is Minister of Health and\nothers v. Treatment Action Campaign and others (TAC)\n[2002 (5) SA 721 (CC)]. The issue in that case was whether\nthe state is obliged under the right of access to health care\n(Sections 27(1) and (2) of 1996 Constitution) to provide the\nanti-retroviral drug Nevirapine to HIV-positive pregnant\nwomen and their new born infants.           Referring the policy\nframed by the State, the Court held that the State is obliged\nto provide treatment to the patients included in the pilot\npolicy.     The decision was the closest to acknowledging the\nindividual's enforceable right.\n52.        In Ex parte Chairperson of the Constitutional\nAssembly: in re Certification of the Constitution of the\nRepublic of South Africa [1996 (4) SA 744 (CC)], the Court\nmade it clear that socio-economic rights may be negatively\nprotected from improper invasion, breach of the obligation,\n\f                                                                   91\noccurs directly when there is a failure to respect the right or\nindirectly when there is a failure to prevent the direct\nentrenchment of the right of another, or a failure to respect\nthe existing protection of the right, by taking measures that\ndiminish the protection of private parties obligation, is not to\ninterfere with or diminish the enjoyment of the right\nconstitutionally protected.   Equally important, in enjoyment\nof that right, the beneficiary shall also not obstruct, destroy,\nor make an inroad on the right guaranteed to others like non-\nstate actors.\n53.    Few of the other notable South African Constitutional\nCourt judgments are: Minister of Public Works and others\nv. Kyalami Ridge Environmental Association and others\n[2001 (7) BCLR 652 (CC)] and President of the Republic of\nSouth Africa v. Modderklip Boerdery (Pty). Ltd. [2005 (5)\nSA 3 (CC)].\n54.       South African Constitution, unlike many other\nconstitutions of the world, has included socio-economic\nrights, health services, food, water, social security and\neducation in the Constitution to enable it to serve as an\ninstrument of principled social transformation enabling\n\f                                                                   92\naffirmative action and horizontal application of rights.     To\nmost of the social rights, the State's responsibility is limited\nto take reasonable legislative and other measures within its\navailable resources to achieve the progressive realisation of\nthose rights [Sections 26(2), and 27(2)].      Few exceptions,\nhowever, give rise to directly enforceable claims, namely, right\nnot to be evicted [Section 26(3)]; not to be refused emergency\nmedical treatment [Section 27(3)]; the rights of prisoners to\nadequate nutrition and medical treatment [Section 35(2)] and\nrights of Children (defined as those under 18 years) to basic\nnutrition, shelter, basic health care and social services.\n55.    Social economic rights have also been recognized by\nthe constitutional courts of various other countries as well.\nIn Brown v. Board of Education [347 U.S. 483], the U.S.\nConstitutional Court condemned the policy of segregation of\nblacks in the American educational system. The Court held\nthat the private schools for black and white children are\ninherently unequal and deprived children of equal rights.\n56.       In a Venenzuelan case Cruz del Valle Balle\nBermudez v. Ministry of Health and Social Action - Case\nNo.15.789 Decision No.916 (1999); the Court considered\n\f                                                                    93\nwhether those with HIV\/AIDS had the right to receive the\nnecessary medicines without charge and identifying a positive\nduty of prevention at the core of the right to health, it ordered\nthe Ministry to conduct an effective study into the minimum\nneeds   of   those   with   HIV\/AIDS    to   be   presented   for\nconsideration in the Government's next budget. Reference\nmay also be made a judgment of the Canadian Constitution\nCourt in Wilson v. Medical Services Commission of\nBritish Columbia [(53) D.L.R. (4th) 171].\n57.      I have referred to the rulings of India and other\ncountries to impress upon the fact that even in the\njurisdictions where socio-economic rights have been given the\nstatus of constitutional rights, those rights are available only\nagainst State and not against private state actors, like the\nprivate schools, private hospitals etc., unless they get aid,\ngrant or other concession from the State.     Equally important\nprinciple is that in enjoyment of those socio-economic rights,\nthe beneficiaries should not make an inroad into the rights\nguaranteed to other citizens.\nREMOVAL OF OBSTACLES                 TO      ACHIEVE     SOCIO-\nECONOMIC RIGHTS\n\f                                                                    94\n58.     Socio-economic rights, I have already indicated, be\nrealized only against the State and the Statute enacted to\nprotect socio-economic rights is always subject to the rights\nguaranteed to other non-state actors under Articles 19(1)(g),\n30(1), 15(1), 16(1) etc.    Parliament has faced many obstacles\nin fully realizing the socio-economic rights enshrined in Part\nIV of the Constitution and the fundamental rights guaranteed\nto other citizens were often found to be the obstacles.\nParliament has on several occasions imposed limitations on\nthe enjoyment of the rights guaranteed under Part III of the\nConstitution, through constitutional amendments.\n59.     Parliament, in order to give effect to Article 39 and to\nremove the obstacle for realization of socio-economic rights,\ninserted Article 31A vide Constitution (First Amendment) Act,\n1951 and later amended by the Constitution (Fourth\nAmendment) Act, 1955 and both the amendments were given\nretrospective   effect     from   the   commencement     of   the\nConstitution.   The purpose of the first amendment was to\neliminate all litigations challenging the validity of legislation\nfor the abolition of proprietary and intermediary interests in\nland on the ground of contravention of the provisions of\n\f                                                                     95\nArticles 14, 19 and 31. Several Tenancy and Land Reforms\nActs enacted by the State also stood protected under Article\n31A from the challenge of violation of Articles 14 and 19.\n60.      Article 31B also saves legislations coming under it\nfrom inconsistency with any of the fundamental rights\nincluded in Part III for example Article 14, Article 19(1)(g) etc.\nArticle 31B read with Ninth Schedule protects all laws even if\nthey are violative of fundamental rights.      However, in I.R.\nCoelho (Dead) by LRs v. State of Tamil Nadu and Others\n[(2007) 2 SCC 1], it was held that laws included in the Ninth\nSchedule can be challenged, if it violates the basic structure\nof the Constitution which refer to Articles 14, 19, 21 etc.\n61.    Article 31C was inserted by the Constitution (Twenty-\nfifth Amendment) Act, 1971 which gave primacy to Article\n39(b) and (c) over fundamental rights contained under Article\n14 and 19.        Article 31C itself was amended by the\nConstitution    (Forty-second   Amendment)      Act,   1976   and\nbrought in all the provisions in Part-IV, within Article 31C for\nprotecting laws from challenge under article 14 and 19 of the\nConstitution.\n\f                                                                   96\n62.    I have referred to Articles 31A to 31C only to point out\nhow the laws giving effect to the policy of the State towards\nsecuring all or any of the principles laid down in Part-IV stood\nsaved from the challenge on the ground of violation or\ninfraction of the fundamental rights contained in Articles 14\nand 19.    The object and purpose of those constitutional\nprovisions is to remove the obstacles which stood in the way\nof enforcing socio-economic rights incorporated in Part-IV of\nthe Constitution and also to secure certain rights, guaranteed\nunder Part III of the Constitution.\n63.     Rights guaranteed under Article 19(1)(g) can also be\nrestricted or curtailed in the interest of general public\nimposing reasonable restrictions on the exercise of rights\nconferred under Article 19(1)(g). Laws can be enacted so as to\nimpose regulations in the interest of public health, to prevent\nblack marketing of essential commodities, fixing minimum\nwages and various social security legislations etc., which all\nintended to achieve socio-economic justice.         Interest of\ngeneral public, it may be noted, is a           comprehensive\nexpression comprising several issues which affect public\nwelfare, public convenience, public order, health, morality,\n\f                                                                     97\nsafety etc. all intended to achieve socio-economic justice for\nthe people.\n64.     The law is however well settled that the State cannot\ntravel beyond the contours of Clauses (2) to (6) of Article 19 of\nthe   Constitution     in   curbing    the   fundamental    rights\nguaranteed by Clause (1), since the Article guarantees an\nabsolute and unconditional right, subject only to reasonable\nrestrictions. The grounds specified in clauses (2) to (6) are\nexhaustive and are to be strictly construed.         The Court, it\nmay be noted, is not concerned with the necessity of the\nimpugned legislation or the wisdom of the policy underlying\nit, but only whether the restriction is in excess of the\nrequirement, and whether the law has over-stepped the\nConstitutional limitations.     Right guaranteed under Article\n19(1)(g), it may be noted, can be burdened by constitutional\nlimitations like sub-clauses (i) to (ii) to Clause (6).\n65.     Article 19(6)(i) enables the State to make law relating\nto professional or technical qualifications necessary for\npracticing any profession or to carry on any occupation, trade\nor business. Such laws can prevent unlicensed, uncertified\nmedical practitioners from jeopardizing life and health of\n\f                                                                  98\npeople. Sub clause (ii) to Article 19(6) imposes no limits upon\nthe power of the State to create a monopoly in its favour.\nState can also by law nationalize industries in the interest of\ngeneral public.   Clause (6)(ii) of Article 19 serves as an\nexception to clause (1)(g) of Article 19 which enable the State\nto enact several legislations in nationalizing trades and\nindustries. Reference may be made to Chapter-4 of the Motor\nVehicles Act, 1938, The Banking Companies (Acquisition and\nTransfer of Undertakings) Act, 1970, General Insurance\nBusiness (Nationalization) Act, 1972 and so on. Sub-clause\n6(ii) of Article 19 exempts the State, on the conditions of\nreasonableness, by laying down that carrying out any trade,\nbusiness, industry or services by the State Government would\nnot be questionable on the ground that it is an infringement\non the right guaranteed under Article 19(1)(g).\n66.      I have referred to various provisions under sub-\nclauses (i) and (ii) of Article 19(6) to impress upon the fact\nthat it is possible to amend the said Article so that socio-\neconomic rights could be realized by carving out necessary\nconstitutional limitations abrogating or abridging the right\nguaranteed under Article 19(1)(g).\n\f                                                                  99\n67.     Constitutional amendments have also been made to\nArticles 15 and 16 so as to achieve socio-economic justice.\nArticles 15 and 16 give power to the State to make positive\ndiscrimination    in   favour   of   the   disadvantaged   and\nparticularly, persons belonging to Scheduled Castes and\nScheduled Tribes.      Socio-economic empowerment secures\nthem dignity of person and equality of status, the object is to\nachieve socio-economic equality.\n68.     Faced with many obstacles to achieve the above\nobjectives and the Directive Principles of the State Policy,\nArticles 15 and 16 of the Constitution had to be amended on\nseveral occasions so as to get over the obstacles in achieving\nthe socio-economic justice. In State of Madras v. Shrimati\nChampakam Dorairajan [(1951) 2 SCR 525], this Court laid\ndown the law that Article 29(2) was not controlled by Article\n46 of the Directive Principles of the State Policy and that the\nConstitution did not intend to protect the interest of the\nbackward classes in the matter of admission to educational\ninstitutions.    In order to set right the law and to achieve\nsocial justice, Clause (4) was added to Article 15 by the\nConstitutional (First Amendment) Act, 1951 enabling the\n\f                                                                   100\nState to make special provision for the advancement of any\nsocially and educationally backward classes of citizens or for\nthe Scheduled Castes and Scheduled Tribes.        The object of\nClause (4) was to bring Articles 15 and 29 in line with Articles\n16(4), 46 and 340 of the Constitution, so as to make it\nconstitutional for the State to reserve seats for backward\nclasses citizens, Scheduled Castes and Scheduled Tribes in\nthe public educational institutions, as well as to make special\nprovisions, as may be necessary, for the advancement, e.g. to\nprovide housing accommodation for such classes.        In other\nwords, Article 15(4) enables the State to do what would\notherwise have been unconstitutional. Article 15(4) has to be\nread as a proviso or an exception to Article 29(2) and if any\nprovision is defined by the provisions of Article 15(4), its\nvalidity cannot be questioned on the ground that it violates\nArticle 29(2).   Under Article 15(4), the State is entitled to\nreserve a minimum number of seats for members of the\nbackward classes, notwithstanding Article 29(2) and the\nobstacle created under Article 29(2) has been removed by\ninserting Article 15(4).\n69.    The Parliament noticed that the provisions of Article\n\f                                                                   101\n15(4) and the policy of reservation could not be imposed by\nthe State nor any quota or percentage of admission be carved\nout to be appropriated by the State in minority or non-\nminority unaided educational institution, since the law was\nclearly declared in Pai Foundation and Inamdar cases. It\nwas noticed that the number of seats available in aided or\nState maintained institutions particularly in respect of\nprofessional    educational   institutions   were   limited   in\ncomparison to those in private unaided institutions. Article\n46 states that the State shall promote, with special care, the\neducational and economic interests of the weaker sections of\nthe people, and, in particular of the Scheduled Castes and\nScheduled Tribes, and shall protect them from social\ninjustice.     Access to education was also found to be an\nimportant factor and in order to ensure advancement of\npersons belonging to Scheduled Castes, Scheduled Tribes,\nsocially and economically backward classes, it was proposed\nto introduce Clause (5) to Article 15 to promote educational\nadvancement of socially and educationally backward classes\nof citizens i.e. OBCs, Scheduled Castes and Scheduled Tribes\nand the weaker sections of the society by securing admission\nin unaided educational institutions and other minority\n\f                                                                      102\neducational institutions referred to in Clause (1) of Article 30\nof the Constitution.\n70.      The Parliament has, therefore, removed the obstacles\ncreated by the law as ruled by the Court in Pai Foundation\nand Inamdar so as to carry out the obligation under the\nDirective Principles of the State Policy laid down under Article\n46.   Later, the Parliament enacted the Central Educational\nInstitutions (Reservation and Admission) Act, 2006 (for short\n`the CEI Act'), but the Act never intended to give effect to the\nmandate of the newly introduced Clause (5) to Article 15\ndealing with admissions in both aided and unaided private\neducational institutions.\n71.      Constitutional validity of Clause (5) to Article 15 and\nthe CEI Act came up for consideration before a Constitutional\nBench of this Court in Ashoka Kumar Thakur v. Union of\nIndia and Others [(2008) 6 SCC 1].           CEI Act was enacted by\nthe Parliament under Article 15(5), for greater access to\nhigher education providing for 27 per cent reservation for\n\"Other   Backward      Classes\"   to   the    Central   Government\ncontrolled educational institutions, but not on privately\nmanaged educational institutions.       Constitutional validity of\n\f                                                                   103\nArticle 15(5) was challenged stating that it had violated the\nbasic structure doctrine.     The majority of the Judges in\nAshok Kumar Thakur's case declined to pronounce on the\nquestion whether the application of Article 15(5) to private\nunaided institutions violated the basic structure of the\nConstitution, in my view, rightly because that issue did not\narise for consideration in that case.         Justice Dalveer\nBhandari, however, examined the validity of Article 15(5) with\nrespect to private unaided institutions and held that an\nimposition of reservation of that sort would violate Article\n19(1)(g) and thus the basic structure doctrine.    Article 19(1)\n(g), as such, it may be pointed out, is not a facet of the basic\nstructure of the Constitution, and can be constitutionally\nlimited in its operation, with due respect, Justice Bhandari\nhas overlooked this vital fact.   Pai Foundation as well as\nInamdar held that Article 19(1)(g) prevents the State from\ncreating reservation quotas or policy in private unaided\nprofessional educational institutions and, as indicated earlier,\nit was to get over that obstacle that Clause (5) was inserted in\nArticle 15. In Ashok Kumar Thakur, the majority held that\nClause (5) to Article 15 though, moderately abridges or alters\nthe equality principle or the principles under Article 19(1)(g),\n\f                                                                        104\ninsofar   as    it    dealt   with   State   maintained   and   aided\ninstitutions, it did not violate the basic structure of the\nConstitution.        I have referred to Articles 15(4) and 15(5) and\nthe judgment in Ashok Kumar Thakur to highlight the fact\nthat the State in order to achieve socio-economic rights, can\nremove obstacles by limiting the fundamental rights through\nconstitutional amendments.\n72.       Applicability of Article 15(5), with regard to private\nunaided non-minority professional institutions, came up for\nconsideration in Medical Association case.             A two judges\nBench of this Court has examined the constitutional validity\nof Delhi Act 80 of 2007 and the notification dated 14.8.2008\nissued by the Government of NCT, Delhi permitting the Army\nCollege of Medical Sciences to allocate 100% seats to the\nwards of army personnel.             The Court also examined the\nquestion whether Article 15(5) has violated the                 basic\nstructure of the Constitution.          The Court proceeded on the\nbasis that Army Medical College is a private non-minority,\nunaided professional institution.            Facts indicate that the\nCollege was established on a land extending to approximately\n25 acres, leased out by the Ministry of Defence, Government\n\f                                                                  105\nof India for a period of 30 years extendable to 99 years.\nMinistry of Defence also offered various facilities like\nproviding clinical training at Army Hospital, NCT, Delhi and\nalso access to the general hospitality.    The constitutional\nvalidity of Article 15(5) was upheld holding that Clause (5) of\nArticle 15 did not violate the basic structure of the\nConstitution.    While reaching that conclusion, Court also\nexamined the ratio in Pai Foundation as well as in\nInamdar.        Some of the findings recorded in Medical\nAssociation case, on the ratio of Pai Foundation and\nInamdar, in my view, cannot be sustained.\n73.     Medical Association case, it is seen, gives a new\ndimension to the expression \"much of difference\" which\nappears in paragraph 124, page 601 of Inamdar. Learned\nJudges in Medical Association case concluded in Para 80 of\nthat judgment that the expression \"much of a difference\"\ngives a clue that there is an \"actual difference\" between the\nrights of the minority unaided institutions under clause (1) of\nArticle 30 and the rights of non-minority unaided institutions\nunder sub-clause (g) of Clause (1) of Article 19. Let us refer\nto paragraph 124 of Inamdar to understand in which context\n\f                                                                     106\nthe expression \"much of difference\" was used in that\njudgment, which is extracted below:\n            \"So far as appropriation of quota by the State\n      and enforcement of its reservation policy is\n      concerned, we do not see much of a difference\n      between non-minority and minority unaided\n      educational institutions. We find great force in the\n      submission made on behalf of the petitioners that\n      the states have no power to insist on seat-sharing in\n      unaided       private    professional     educational\n      institutions by fixing the quota of seats between the\n      Management and the State.\" (emphasis supplied)\nInamdar      was    expressing   the   view   that   so   far   as\n\"appropriation of quota by the State\" and \"enforcement of its\nreservation policy\" is concerned, they do not see much of\ndifference   between   non-minority    and    minority    unaided\neducational institutions. Medical Association case, on the\nother hand, in my view, has gone at a tangent and gave a new\ndimension and meaning to paragraph 124 of Inamdar, which\nis evident from the following paragraph of that judgment:\n             \"81.      xxx              xxx\n                       xxx              xxx\n              (i) that there is not much of a difference in\n              terms, between the two kinds of institutions\n              under consideration, based on an overall\n              quantitative assessment of all the rights put\n              together, with a few differences that would\n\f                                                               107\n             still have operational significance; or\n             (ii) that in all respects the two classes of\n             educational institutions are more or less the\n             same, with the differences being minor and\n             not leading to any operational significance.\"\n                                         (emphasis supplied)\nMedical Association case concluded that the expression\n\"much of a difference\" could be understood only in the way\nthey have stated in paragraph 81(i) which, with due respect,\nis virtually re-writing paragraph 124 of Inamdar, a seven\nJudges' Judgment which is impermissible. Final conclusion\nreached by the learned judges in paragraph 123 for inclusion\nof Clause (5) to Article 15 reads as follows:\n       \"123.     Clause (5) of Article 15 is an enabling\n      provision and inserted by the Constitution (Ninety-\n      third Amendment) Act, 2005 by use of powers of\n      amendment in Article 368.         The Constitution\n      (Ninety-third Amendment) Act, 2005 was in\n      response to this Court's explanation, in P.A.\n      Inamdar, of the ratio in T.M.A. Pai, that imposition\n      of    reservations    on   non-minority     unaided\n      educational institutions, covered by sub-clause (g)\n      of clause (1) of Article 19, to be unreasonable\n      restrictions and not covered by clause (6) of Article\n      19. The purpose of the amendment was to clarify\n      or amend the Constitution in a manner that what\n      was held to be unreasonable would now be\n      reasonable by virtue of the constitutional status\n      given to such measures.\"\n74.      Referring to Pai Foundation case, the Court also\n\f                                                                  108\nstated, having allowed the private sector into the field of\neducation    including   higher    education,   it   would   be\nunreasonable, pursuant to clause (6) of Article 19, for the\nState to fix the fees and also impose reservations on private\nunaided educational institutions.     Nevertheless, the Court\nopined that taking into consideration the width of the original\npowers under Clause (6) of Article 19, one would necessarily\nhave to find the State would at least have the power to make\namendments to resurrect some of those powers that it had\npossessed to control the access to higher education and\nachieve the goals of egalitarianism and social justice.\n75.    Article 15(5), it may be noted, gives no protection to\nweaker sections of the society, except members belonging to\nScheduled Castes\/Scheduled Tribes and members of Other\nBackward Community.\n76.   Constitutional amendments carried out to Article 16 in\nsecuring social justice may also be examined in this context.\nClause (1) of Article 16 guarantees equality of opportunity for\nall citizens in matters relating to employment or appointment\nto any office under the State.       Article 16(4) is a special\nprovision confined to the matters of employment in the\n\f                                                                        109\nservices under the State which states that nothing in Article\n16(1) shall prevent the State from making any provision for\nthe reservation of appointments or posts in favour of any\nbackward       class   of   citizens   which    is   not   adequately\nrepresented in the services under the State.               Article 46\nobliges the State to take steps for promoting the economic\ninterests of the weaker sections and, in particular, of the\nScheduled Castes and Scheduled Tribes.               The expression\n`weaker sections' in Article 46 is wider than `backward class'.\nThe backward citizens in Article 16(4) do not comprise of all\nthe weaker sections of the people but only those which are\nsocially, educationally and economically backward, and which\nare not adequately represented in the services under the\nState. Further, the expression `weaker sections' can also take\nwithin   its   compass      individuals   who    constitute   weaker\nsections or weaker parts of the society.\n77.      In Indra Sawhney v. Union of India and Others\n[(1992) Supp. 3 SCC 212], this Court held that, as the law\nstood then, there could be no reservation in promotion.            It\nwas held that reservation of appointments or posts under\nArticle 16(4) is confined to initial appointments only. To set\n\f                                                                 110\nright the law and to advance social justice by giving\npromotions to Scheduled Castes and Scheduled Tribes Clause\n(4A) was added to Article 16 by the Constitution (Seventy-\nseventh Amendment) Act, 1995. Consequently, the hurdle or\nobstacle which stood in the way was removed by the\nConstitutional amendment.\n78.      The scope of the above provision came up for\nconsideration in Jagdish Lal and Others v. State of\nHaryana and Others [(1997) 6 SCC 538], where this Court\nheld that the principle of seniority according to length of\ncontinuous service on a post or service will apply and that\nalone will have to be looked into for the purpose of seniority\neven though they got promotion ignoring the claim of seniors.\nIt was said that reserved candidates who got promotion\nignoring the claim of services in general category will be\nseniors and the same cannot affect the promotion of general\ncandidates from the respective dates of promotion and\ngeneral candidates remain junior in higher echelons to the\nreserved candidates.     The above position was, however,\noverruled in Ajit Singh and Others v. State of Punjab and\nOthers [(1999) 7 SCC 209], wherein it was decided that the\n\f                                                                 111\nreserved category candidates cannot count seniority in the\npromoted category from the date of continuous officiation vis-\n\u00e0-vis the general candidates who were senior to them in the\nlower category and who were later promoted.       Ajit Singh\ncase was declaring the law as it stood.    Consequently, the\nParliament, in order to give continuous appreciation in\npromotion, inserted the words \"with consequential seniority\"\nin Clause (4A) to Article 16 by Constitution (Eighty-fifth\nAmendment) Act, 2001 (which was made effective from\n17.6.1995).   In the light of Article 16(4A), the claims of\nScheduled Castes and Scheduled Tribes for promotion shall\nbe taken into consideration in making appointment or giving\npromotion.\n79.     Constitution (Eighty-first Amendment) Act, 2000,\nwhich came into effect on 9.6.2000, inserted Clause (4B) to\nArticle 16, which envisaged that the unfilled reserved\nvacancies in a year to be carried forward to subsequent years\nand that these vacancies are to be treated as distinct and\nseparate from the current vacancies during any year, which\nmeans that 50% rule is to be applied only to normal\nvacancies and not to the posts of backlog of reserved\n\f                                                                      112\nvacancies.         Inadequacy and representation of backward\nclasses, Scheduled Castes and Scheduled Tribes are the\ncircumstances which enabled the State Government to enact\nArticles 16(4), 16(4A) and 16(4B).\n80.      The constitutional validity of Article 16(4A) substituted\nby the Constitution (Eighty-fifth Amendment) Act, 2001 came\nup for consideration before this Court in M. Nagaraj &amp; Ors.\nv. Union of India [(2006) 8 SCC 212].           The validity of the\nConstitution (Seventy-seventh Amendment) Act, 1995, the\nConstitution       (Eighty-first   Amendment)    Act,   2000,   the\nConstitution (Eighty-second Amendment) Act, 2000 and the\nConstitution (Eighty-fifth Amendment) Act, 2001 were also\nexamined and held valid. This Court held that they do not\ninfringe either the width of the Constitution amending power\nor alter the identity of the Constitution or its basic structure.\nThis Court held that the ceiling-limit of 50%, the concept of\ncreamy     layer     and    the    compelling   reasons,   namely,\nbackwardness, inadequacy of representation and overall\nadministrative efficiency are all constitutional requirements\nwithout which the structure of equality of opportunity in\nArticle 16 would collapse.\n\f                                                                   113\n81.       I have referred extensively to the constitutional\namendments effected to Articles 31A to 31C, Articles 15, 16\nand 19 to show that whenever the Parliament wanted to\nremove obstacles so as to make affirmative action to achieve\nsocio-economic justice constitutionally valid, the same has\nbeen done by carrying out necessary amendments in the\nConstitution, not through legislations, lest they may make an\ninroad into the fundamental rights guaranteed to the citizens.\nRights guaranteed to the unaided non-minority and minority\neducational institutions under Article 19(1)(g) and Article\n30(1) as explained in Pai Foundation and reiterated in\nInamdar have now been limited, restricted and curtailed so\nas to impose positive obligation on them under Section 12(1)\n(c) of the Act and under Article 21A of the Constitution, which\nis permissible only through constitutional amendment.\n82.   Constitutional principles laid down by Pai Foundation\nand Inamdar on Articles 19(1)(g), 29(2) and 30(1) so far as\nunaided private educational institutions are concerned,\nwhether minority or non-minority, cannot be overlooked and\nArticle 21A, Sections 12(1)(a), (b) and 12(1)(c) have to be\ntested in the light of those constitutional principles laid down\nby Pai Foundation and Inamdar because Unnikrishnan\n\f                                                                     114\nwas the basis for the introduction of the proposed Article 21A\nand the deletion of clause (3) from that Article. Interpretation\ngiven by the courts on any provision of the Constitution gets\ninbuilt in the provisions interpreted, that is, Articles 19(1)(g),\n29(2) and 30.\n83.      We have to give due respect to the eleven Judges\njudgment in Pai Foundation and the seven Judges judgment\nin Inamdar, the principles laid down in those judgments still\nhold good and are not whittled down by Article 21A, nor any\nconstitutional amendment was effected to Article 19(1)(g) or\nArticle 30(1). Article 21A, it may be noted was inserted in the\nConstitution on 12.12.2002 and the judgment in Pai\nFoundation was delivered by this Court on 31.10.2002 and\n25.11.2002. Parliament is presumed to be aware of the law\ndeclared by the Constitutional Court, especially on the rights\nof the unaided non-minority and minority educational\ninstitutions, and in its wisdom thought if fit not to cast any\nburden on them under Article 21A, but only on the State.\nCriticism of the judgments of the Constitutional Courts has to\nbe welcomed, if it is healthy. Critics, it is seen often miss a\npoint which is vital, that is, Constitutional Courts only\n\f                                                                           115\ninterpret constitutional provisions and declare what the law\nis, and not what law ought to be, which is the function of the\nlegislature.         Factually and legally, it is not correct to\ncomment that many of the amendments are necessitated to\novercome       the   judgments     of   the    Constitutional    Courts.\nAmendments are necessitated not to get over the judgments\nof the Constitutional Courts, but to make law constitutional.\nIn other words, a law which is otherwise unconstitutional is\nrendered constitutional. An unconstitutional statute is not a\nlaw at all, whatever form or however solemnly it is enacted.\nWhen     legislation     is     declared      unconstitutional    by   a\nConstitutional Court, the legislation in question is not vetoed\nor annulled but declared never to have been the law. People,\nacting solemnly in their sovereign capacity bestow the\nsupreme dominion on the Constitution and, declare that it\nshall   not     be    changed     except      through   constitutionally\npermissible mode.          When courts declare legislative acts\ninconsistent with constitutional provisions, the court is giving\neffect to the will of the people not due to any judicial\nsupremacy, a principle which squarely applies to the case on\nhand.\n\f                                                                  116\n84.      In S.P. Gupta v. President of India and Others\n[1981 SCC Supp. (1) 87] [para 195], Justice Fazal Ali pointed\nout as follows:\n       \" The position so far as our country is concerned is\n      similar to that of America and if any error of\n      interpretation of a constitutional provision is\n      committed by the Supreme Court or any\n      interpretation which is considered to be wrong by\n      the Government can be rectified only by a\n      constitutional amendment which is a very\n      complicated, complex, delicate and difficult\n      procedure requiring not merely a simple majority\n      but two-third majority of the Members present and\n      voting. Apart from the aforesaid majority, in most\n      cases the amendment has to be ratified by a\n      majority of the States. In these circumstances,\n      therefore, this Court which lays down the law of the\n      land under Article 141 must be extremely careful\n      and circumspect in interpreting statutes, more so\n      constitutional provisions, so to obviate the necessity\n      of a constitutional amendment every time which, as\n      we have already mentioned, is an extremely onerous\n      task.\"\nReference may also be made to the judgment in Bengal\nImmunity Company Limited v. State of Bihar and Others\n[AIR 1955 SC 661].\n85.      In People's Union for Civil Liberties (PUCL) and\nAnr. v. Union of India (UOI) and Anr. [2003 (4) SCC 399] in\npara 112 this Court has held \"It is a settled principle of\nconstitutional jurisprudence that the only way to render a\njudicial decision ineffective is to enact a valid law by way of\n\f                                                                   117\namendment.......\"\n86.     In Smit v. Allwright [321 U.S. 649 (1944)], the Court\nheld \"In constitutional questions, where correction depends\nupon amendment, and not upon legislative action, this Court\nthroughout its history has freely exercised its power to re-\nexamine the basis of its constitutional decisions. This has long\nbeen accepted practice and this practice has continued to this\nday.\"\n87.     Constitutional interpretation given by this Court as to\nwhat the law is, led to bringing in several amendments either\nto set right the law or abridge the constitutional rights\nguaranteed in Part III of the Constitution, some of which I\nhave already referred to in the earlier part of this judgment.\n88.      Principles laid down by Pai Foundation and in\nInamdar while interpreting Articles 19(1)(g), 29(2) and 30(1)\nin respect of unaided non-minority and minority educational\ninstitutions like schools upto the level of under-graduation\nare all weighty and binding constitutional principles which\ncannot be undone by statutory provisions like Section 12(1)\n(c), since those principles get in-built in Article 19(1)(g),\n\f                                                                    118\nArticle 29(2) and Article 30(1) of the Constitution.     Further\nParliament, while enacting Article 21A, never thought if fit to\nundo those principles and thought it fit to cast the burden on\nthe State.\nPART III\nOBLIGATIONS\/RESPONSIBILITIES    OF    NON-STATE\nACTORS IN REALIAZATION OF CHILDREN'S RIGHTS:\n89.       We may, however, also examine whether the private\nunaided       educational       institutions      have       any\nobligations\/responsibilities in realization of children's rights.\nArticles 21A, 45, 51A(k), Section 12 of the Act and various\nInternational Conventions deal with the obligations and\nresponsibilities of state and non-state actors for realization of\nchildren's rights.   Social inclusiveness is stated to be the\nmotto of the Act which was enacted to accomplish the State's\nobligation to provide free and compulsory education to\nchildren of the age 6 to 14 years, in that process,\ncompulsorily co-opting, private educational institutions as\nwell. A shift in State's functions, to non-state actors in the\nfield of health care, education, social services etc. has been\nkeenly felt due to liberalization of economy and privatization\n\f                                                                               119\nof state functions.\n90.       The Universal Declaration of Human Rights, 1948\n(UDHR), the International Covenant on Civil and Political\nRights (ICCPR) and the International Covenant on Economic,\nSocial and Cultural Rights, 1966 (ICESCR), UN Convention\non the Rights of the Child (UNCRC), 1989 throw considerable\nlight on the duties and responsibilities of State as well as\nnon-state actors for the progressive realization of children\nrights. Article 6(1) of ICCPR states: \"Every human being has\nthe inherent right to life ... No one shall be arbitrarily\ndeprived of this right\", meaning thereby that the arbitrary\ndeprivation    of   a    person's    life    will   be   a   violation    of\ninternational human rights norm whether it is by the State or\nnon-state actors.       UDHR, ICCPR, ICESCR, UNCRC and other\nrelated international covenants guarantee children civil,\npolitical, economical, social and cultural rights.            Article 4 of\nthe UNCRC requires the State to undertake all appropriate\nlegislative,   administrative       and     other   measures     for     the\nimplementation of the rights recognized in the Convention.\n91.    Article 2.1 of the ICESCR, has also approved the above\nobligation of the State, which reads as follows:\n\f                                                                120\n          \"Each State Party to the present Covenant\n      undertakes to take steps, individually and through\n      international assistance and co-operation, especially\n      economic and technical, to the maximum of its\n      available resources, with a view to achieving\n      progressively the full realization of the rights\n      recognized in the present Covenant by all\n      appropriate means, including particularly the\n      adoption of legislative measures.\"\nNon-state actor's obligation is also reflected in preamble of\nICCPR and ICESCR which is as follows:\n          \"The individual, having duties to other\n      individuals and to the community to which he\n      belongs, is under a responsibility to strive for the\n      promotion and observance of the rights recognized\n      in the present Covenant.\"\nPreamble of UDHR also reads as follows:\n           \"... every individual and every organ of society,\n      keeping this Declaration constantly in mind, shall\n      strive by teaching and education, to promote respect\n      for these rights and freedoms and by progressive\n      measures, national and international, to secure\n      their universal and effective recognition and\n      observance...\"\nNon-state actor's \"duty to the community\" and to the\n\"individuals in particular\" are accordingly highlighted.\n     Article 30 of UDHR highlights the necessity to protect\nand safeguard the right of others which reads as follows :-\n          \"Nothing in this Declaration may be interpreted\n      as implying for any state, group or person any right\n\f                                                                    121\n       to engage in any activity or to perform any act aimed\n       at the destruction of any of the rights and freedoms\n       set forth herein.\"\n92.        In this connection reference may be made to Article\n28(1)(a) of UNCRC which reads as follows: \"States Parties\nrecognize the right of the child to education, and with a view to\nachieving this right progressively and on the basis of equal\nopportunity, they shall, in particular: make primary education\ncompulsory and available free to all\";\n      Article 29 is also relevant for our purpose which reads as\nfollow:-\n      1. States Parties agree that the education of the\n         child shall be directed to:\n       (a) The development of the child's personality,\n       talents and mental and physical abilities to their\n       fullest potential;\n       (b) The development of respect for human rights and\n       fundamental freedoms, and for the principles\n       enshrined in the Charter of the United Nations;\n       (c) The development of respect for the child's\n       parents, his or her own cultural identity, language\n       and values, for the national values of the country in\n       which the child is living, the country from which he\n       or she may originate, and for civilizations different\n       from his or her own;\n       (d) The preparation of the child for responsible life in\n       a free society, in the spirit of understanding, peace,\n       tolerance, equality of sexes, and friendship among\n       all peoples, ethnic, national and religious groups\n       and persons of indigenous origin;\n\f                                                                     122\n      (e) The development of respect for the natural\n      environment.\n      2. No part of the present article or article 28 shall\n      be construed so as to interfere with the liberty of\n      individuals and bodies to establish and direct\n      educational institutions, subject always to the\n      observance of the principle set forth in paragraph 1\n      of the present article and to the requirements that\n      the education given in such institutions shall\n      conform to such minimum standards as may be laid\n      down by the State.\n93.     Provisions referred to above and other provisions of\nInternational Conventions indicate that the rights have been\nguaranteed    to     the   children   and   those   rights   carry\ncorresponding State obligations to respect, protect and fulfill\nthe realization of children's rights.   The obligation to protect\nimplies the horizontal right which casts an obligation on the\nState to see that it is not violated by non-state actors. For\nnon-state actors to respect children's rights cast a negative\nduty of non-violation to protect children's rights and a\npositive duty on them to prevent the violation of children's\nrights by others, and also to fulfill children's rights and take\nmeasures for progressive improvement.         In other words, in\nthe spheres of non-state activity there shall be no violation of\nchildren's rights.\n\f                                                                  123\n94.    Article 24 of the Indian Constitution states that no\nchild below the age of 14 years shall be employed to work in\nany factory or be engaged in any hazardous employment.\nThe Factories Act, 1948 prohibits the employment of children\nbelow the age of 14 years in any factory. Mines Act, 1952\nprohibits the employment of children below 14 years. Child\nLabour (Prohibition and Regulation) Act, 1986 prohibits\nemployment of children in certain employments.        Children\nAct, 1960 provides for the care, protection, maintenance,\nwelfare, training, education and rehabilitation of neglected or\ndelinquent children. Juvenile Justice (Care and Protection of\nChildren) Act, 1986 (the Amendment Act 33 of 2006) provide\nfor the care, protection, development and rehabilitation of\nneglected and delinquent juveniles.     There are also other\nlegislations enacted for the care and protection of children\nlike Immoral Trafficking Prevention Act, 1956, Prohibition of\nChild Marriage Act, 2006 and so on.    Legislations referred to\nabove cast an obligation on non-state actors to respect and\nprotect children's rights and not to impair or destroy the\nrights guaranteed to children, but no positive obligation to\nmake available those rights.\n\f                                                                     124\n95.       Primary responsibility for children's rights, therefore,\nlies with the State and the State has to respect, protect and\nfulfill children's rights and has also got a duty to regulate the\nprivate institutions that care for children, to protect children\nfrom violence or abuse, to protect children from economic\nexploitation, hazardous work and to ensure human treatment\nof children.     Non-state actors exercising the state functions\nlike establishing and running private educational institutions\nare also expected to respect and protect the rights of the\nchild, but they are, not expected to surrender their rights\nconstitutionally guaranteed.\n96.        Article 21A requires non-state actors to achieve the\nsocio-economic rights of children in the sense that they shall\nnot destroy or impair those rights and also owe a duty of\ncare. The State, however, cannot free itself from obligations\nunder Article 21A by offloading or outsourcing its obligation\nto private State actors like unaided private educational\ninstitutions or to coerce them to act on the State's dictate.\nPrivate    educational    institutions   have   to   empower   the\nchildren, through developing their skills, learning and other\ncapacities, human dignity, self-esteem and self-confidence\n\f                                                                    125\nand to respect their constitutional rights.\n97.     I have in the earlier part of the judgment referred to\nArticle 28(1) and Article 29 of UNCRC which cast an\nobligation on the State to progressively achieve the rights of\nchildren and also to make primary education compulsory and\navailable free to all but all the same make it clear that no part\nof Articles 28 and 29 be construed to interfere with the liberty\nof non-state actors.     They are expected to observe the\nprinciples set forth in Para 1 of Article 29 and also to conform\nto such minimum standards as laid down by the state.\n98.    South African Constitution Bench in Governing Body\nof the Juma Musjid Primary School v. Minister for\nEducation [[2011] ZACC 13] dealt with the interplay between\nprivate rights and the State's obligation to provide right to\neducation.    In that case, the Court held that the primary\npositive obligation to provide the right to education resides on\nthe Government and the purpose of Section 8(2) of the\nConstitution is not to obstruct private autonomy or to impose\non a private party the duties of the state in protecting the Bill\nof Rights. That was a case involving balancing of proprietary\nrights of a trust seeking to evict a public school in order to\n\f                                                                      126\nestablish an independent school. One of the pleas raised by\nthe evictees was that the evictor trust also had an obligation\ntowards the right to education of the learners which it could\nnot ignore.     The Constitutional Court held that the only\nobligation of a private party as regards socio-economic rights,\nlike right to education, is a negative obligation i.e. not to\nunreasonably interfere with the realization of the right and\nthat there is no positive obligation cast on them to protect the\nright by surrendering their rights.\n99.      Pai Foundation and Inamdar also cast a negative\nobligation on the private educational institutions in the sense\nthat there shall be no profiteering, no demand of excessive\nfee, no capitation fee, no maladministration, no cross subsidy\netc.     Further, this Court, while interdicting the State in\nappropriating    seats   in   private   educational   institutions,\nrestrained them from interfering with the autonomy of those\ninstitutions and adopted a balancing approach laying down\nthe principle of voluntariness, co-operation, concession, and\nso on.\n100.       Pai Foundation and Inamdar have categorically\nheld that any action of the State to regulate or control\n\f                                                                       127\nadmissions     in    the   unaided     professional     educational\ninstitutions, so as to compel them to give up a share of the\navailable seats to the candidates chosen by the State, as if it\nwas filling the seats available to be filled up at its discretion\nin such private institutions, would amount to nationalization\nof seats. Such imposition of quota of State seats or enforcing\nreservation policy of the State on available seats in unaided\nprofessional institutions, it was held, are acts constituting\nserious encroachment on the right and autonomy of private\nunaided professional educational institutions and such\nappropriation of seats cannot be held to be a regulatory\nmeasure in the interest of minority within the meaning of\nArticle 30(1) or a reasonable restriction within the meaning of\nArticle 19(6) of the Constitution, so far as the unaided\nminority institutions are concerned.\nPART IV\n101.        Article 21A has used the expression \"State shall\nprovide\" not \"provide for\" hence the constitutional obligation\nto provide education is on the State and not on non-state\nactors, the expression is clear and unambiguous and to\ninterpret   that    expression   to   mean   that     constitutional\n\f                                                                     128\nobligation or responsibility is on private unaided educational\ninstitutions also, in my view, doing violence to the language\nof that expression. The obligation of the State to provide free\nand   compulsory      education   is   without   any   limitation.\nParliament in its wisdom has not used the expression\n\"provide for\". If the preposition \"for\" has been used then the\nduty of the State would be only to provide education to those\nwho require it but to provide for education or rather to see\nthat it is provided. In this connection it is useful to refer to\nthe judgment of the Supreme Court of Ireland in Crowley v.\nIreland [(1980) IR 102], where the expression \"provide for\"\ncame up for interpretation. It was held that the use of the\npreposition \"for\" keeps the State at one remove from the\nactual provision of education indicating that once the State\nhas made an arrangement for the provision of education \u00ad\nprovided the buildings, pay teachers and set the curriculum -\nit is absolved of the responsibility when the education is not\nactually delivered.   The absence of the preposition \"for\" in\nArticle 21A makes the duty on the State imperative.         State\nhas, therefore, to \"provide\" and \"not provide for\" through\nunaided private educational institutions.\n\f                                                                           129\n102.     Article 21A has used the expression \"such manner\"\nwhich means the manner in which the State has to discharge\nits    constitutional   obligation   and   not       offloading    those\nobligations on unaided educational institutions.                  If the\nConstitution wanted that obligation to be shared by private\nunaided educational institutions the same would have been\nmade explicit in Article 21A. Further, unamended Article 45\nhas used the expression \"state shall endeavour.....for\" and\nwhen Article 21A was inserted, the expression used therein\nwas that the \"State shall provide\" and not \"provide for\" the\nduty, which was directory earlier made mandatory so far as\nState is concerned. Article 21 read with 21A, therefore, cast\nan obligation on the State and State alone.\n103.        The State has necessarily to meet all expenses of\neducation of children of the age 6 to 14 years, which is a\nconstitutional     obligation   under      Article     21A    of     the\nConstitution. Children have also got a constitutional right to\nget free and compulsory education, which right can be\nenforced against the State, since the obligation is on the\nState.     Children who opt to join an unaided private\neducational institution cannot claim that right as against the\nunaided private educational institution, since they have no\n\f                                                                    130\nconstitutional obligation to provide free and compulsory\neducation under Article 21A of the Constitution. Needless to\nsay that if children are voluntarily admitted in a private\nunaided educational institution, children can claim their\nright against the State, so also the institution. Article 51A(k)\nof the Constitution states that it shall be the duty of every\ncitizen of India, who is a parent or guardian, to provide\nopportunities for education to his child.        Parents have no\nconstitutional   obligation   under    Article     21A   of   the\nConstitution to provide free and compulsory education to\ntheir children, but only a constitutional duty, then one fails\nto see how that obligation can be offloaded to unaided private\neducational institutions against their wish, by law, when they\nhave neither a duty under the Directive Principles of State\npolicy nor a constitutional obligation under Article 21A, to\nthose 25% children, especially when their parents have no\nconstitutional obligation.\n104.      In Avinash Mehrotra v. Union of India &amp; Others\n[{2009} 6 SCC 398], this Court held that Article 21A imposes\na duty on the State, while Article 51A(k) places burden on the\nparents to provide free and compulsory education to the\nchildren of the age 6 to 14 years.     There exists a positive\n\f                                                                      131\nobligation on the State and a negative obligation on the non-\nstate actors, like private educational institutions, not to\nunreasonably interfere with the realization of the children's\nrights and the state cannot offload their obligation on the\nprivate unaided educational institutions.\n105.       I am, therefore, of the considered view that Article\n21A, as such, does not cast any obligation on the private\nunaided    educational    institutions   to   provide    free   and\ncompulsory education to children of the age 6 to 14 years.\nArticle 21A casts constitutional obligation on the State to\nprovide free and compulsory education to children of the age\n6 to 14 years.\nCONSTITUTIONALLY   IMPERMISSIBLE   PROCEDURE\nADOPTED TO ACHIEVE SOCIAL INCLUSIVENESS UNDER\nTHE ACT.\n106.      I may endorse the view that the purpose and object\nof the Act is laudable, that is, social inclusiveness in the field\nof elementary education but the means adopted to achieve\nthat objective is faulty and constitutionally impermissible.\nPossibly, the object and purpose of the Act could be achieved\nby limiting or curtailing the fundamental rights guaranteed to\nthe    unaided   non-minority     and    minority       educational\n\f                                                                  132\ninstitutions under Article 19(1)(g) and Article 30(1) or\nimposing a positive obligation on them under Article 21A, but\nthis has not been done in the instant case. I have extensively\ndealt with the question - how the socio economic rights could\nbe achieved by making suitable constitutional amendments\nin Part II of this judgment.\n107.    Sections 12(1)(b) and 12(1)(c) are vehicles through\nwhich the concept of social inclusiveness is sought to be\nintroduced into the private schools both aided and unaided\nincluding minority institutions, so as to achieve the object of\nfree and compulsory education of the satisfactory quality to\nthe disadvantaged groups and weaker sections of the society.\nThe purpose, it is pointed out, is to move towards composite\nclassrooms with children from diverse backgrounds, rather\nthan homogenous and exclusive schools and it was felt that\nheterogeneity in classrooms leads to greater creativity.     In\norder to understand the scope of the above mentioned\nprovisions and the object sought to be achieved, it is\nnecessary to refer to those and other related provisions:-\n       Section 12:- Extent of School's responsibility for\n       free and compulsory education \u00ad\n\f                                                           133\n     (1) For the purposes of this Act, a school, -\n          (a) specified in sub-clause(i) of clause (n)\n          of section 2 shall provide free and\n          compulsory elementary education to all\n          children admitted therein ;\n          (b) specified in sub-clause(ii) of clause\n          (n) of section 2 shall provide free and\n          compulsory elementary education to such\n          proportion of children admitted therein as\n          its annual recurring aid or grants so\n          received bears to its annual recurring\n          expenses, subject to a minimum of\n          twenty-five per cent.;\n          (c) specified in sub-clauses (iii) and (iv) of\n          clause (n) of section 2 shall admit in class\n          I, to the extent of at least twenty-five per\n          cent of the strength of that class, children\n          belonging     to   weaker     section    and\n          disadvantaged        group        in      the\n          neighbourhood and provide free and\n          compulsory elementary education till its\n          completion:\nProvided further that where a school specified in\nclause (n) of section 2 imparts pre-school education,\nthe provisions of clauses (a) to (c) shall apply for\nadmission to such pre-school education.\n(2) The school specified in sub-clause (iv) of clause\n(n) of section 2 providing free and compulsory\nelementary education as specified in clause (c) of\nsub-section (1) shall be reimbursed expenditure so\nincurred by it to the extent of per-child expenditure\nincurred by the State, or the actual amount charged\nfrom the child, whichever is less, in such manner as\nmay be prescribed:\n         Provided that such reimbursement shall\nnot exceed per-child-expenditure incurred by a\n\f                                                              134\n      school specified n sub-clause (i) of clause(n) of\n      section 2:\n                Provided further where such school is\n      already under obligation to provide free education to\n      a specified number of children on account of it\n      having received any land, building, equipment or\n      other facilities, either free of cost or at a\n      concessional rate, such school shall not be entitled\n      for reimbursement to the extent of such obligation.\n                (3) Every school shall provide such\n      information as may be required by the appropriate\n      Government or the local authority, as the case may\n      be.\nReference may be also be made to definition clauses.\n      2(d) \"child belonging to disadvantaged group\"\n      means a child belonging to the Scheduled Caste,\n      the Scheduled Tribe, the socially and educationally\n      backward class or such other group having\n      disadvantage owing to social, cultural, economical,\n      geographical, linguistic, gender or such other\n      factor, as may be specified by the appropriate\n      Government, by notification;\n      2(e) \"child belonging to weaker section\" means a\n      child belonging to such parent or guardian whose\n      annual income is lower that the minimum limit\n      specified by the appropriate Government, by\n      notification;\n      2(n) \"school\" means any recognized school\n      imparting elementary education and includes \u00ad\n        (i) a school established, owned or controlled by\n        the appropriate Government or a local authority;\n         (ii) an aided school receiving aid or grants to\n         meet whole or part of its expenses from the\n         appropriate Government or the local authority.\n\f                                                                  135\n         (iii) a school belonging to specified category; and\n         (iv) an unaided school not receiving any kind of\n         aid or grants to meet its expenses from the\n         appropriate Government or the local authority.\n(A) Unaided Educational Institutions, minority and non-\nminority:\n108.    First, I may deal with the challenge against Section\n12(1)(c), which casts an obligation on the unaided private\neducational institutions both non-minority and minority to\nadmit to class 1 at least 25% of the strength of those children\nfalling under Sections 2(d) and 2(e), and also in the pre-\nschool, if there is one.     State also has undertaken re-\nimbursement of the fees of those children to the extent of per-\nchild expenditure incurred by the State.\n109.   Right of a citizen to establish and run an educational\ninstitution investing his own capital is recognized as a\nfundamental right under Article 19(1)(g) and the right of the\nState to impose reasonable restrictions under Article 19(6) is\nalso conceded. Citizens of this country have no constitutional\nobligation to start an educational institution and the question\nis after having started private schools, do they owe a\n\f                                                                   136\nconstitutional obligation for seat sharing with the State on a\nfee structure determined by the State. Pai Foundation and\nInamdar took the view that the State cannot regulate or\ncontrol admission in unaided educational institutions so as to\ncompel them to give up a share of available seats which\naccording to the court would amount to nationalization of\nseats and such an appropriation of seats would constitute\nserious encroachment on the right and autonomy of the\nunaided educational institutions. Both Pai Foundation and\nInamdar        are   unanimous   in   their   view   that   such\nappropriation of seats cannot be held to be a regulatory\nmeasure in the interest of rights of the unaided minority\neducational institutions guaranteed under Article 30(1) of the\nConstitution or a reasonable restriction within the meaning of\nArticle 19(6) in the case of unaided non-minority educational\ninstitution.    Inamdar has also held that to admit students\nbeing an unfettered fundamental right, the State cannot\nmake fetters upto the level of under graduate education.\nUnaided educational institutions enjoy total freedom and they\ncan legitimately claim `unfettered fundamental rights' to\nchoose students subject to its being fair, transparent and\nnon-exploitative.\n\f                                                                  137\n110.     Section 12(1)(c) read with Section 2(n)(iv) of the Act\nnever envisages any distinction between unaided minority\nschools and non-minority schools. Constitution Benches of\nthis Court have categorically held that so far as appropriation\nof quota by the State and enforcement of reservation policy is\nconcerned, there is not much difference between unaided\nminority and non-minority educational institutions (Refer\nParas 124, 125 of Inamdar). Further, it was also held that\nboth   unaided   minority    and   non-minority    educational\ninstitutions enjoy \"total freedom\" and can claim \"unfettered\nfundamental rights\" in the matter of appropriation of quota\nby the State and enforcement of reservation policy.       This\nCourt also held that imposition of quota or enforcing\nreservation policy are acts constituting serious encroachment\non the right and autonomy of such institutions both minority\n(religious and linguistic) and non- minority and cannot be\nheld to be a regulatory measure in the interest of minority\nwithin the meaning of Article 30(1) or a reasonable restriction\nwithin the meaning of Article 19(6) of the Constitution.\nTherefore, no distinction or difference can be drawn between\nunaided minority schools and unaided non-minority schools\n\f                                                                   138\nwith regard to appropriation of quota by the State or its\nreservation policy under Section 12(1)(c) of the Act.\n111.    I am of the view, going by the ratio laid down by Pai\nFoundation and Inamdar, to compel the unaided non\nminority and minority private educational institutions, to\nadmit 25% of the students on the fee structure determined by\nthe State, is nothing but an invasion as well as appropriation\nof the rights guaranteed to them under Article 19(1)(g) and\nArticle 30(1) of the Constitution.   Legislature cannot under\nthe guise of interest of general public \"arbitrarily cast burden\nor responsibility on private citizens running a private school,\ntotally unaided\".   Section 12(1)(c) was enacted not only to\noffload or outsource the constitutional obligation of the State\nto the private unaided educational institutions, but also to\nburden them with duties which they do not constitutionally\nowe to children included in Section 2(d) or (e) of the Act or to\ntheir parents.\n112.      Pai Foundation, in paragraph 57 of the judgment\nhas stated that in as much as the occupation of education is,\nin a sense, regarded as charitable, the Government can\n\f                                                                      139\nprovide regulations that will ensure excellence in education,\nwhile   forbidding   the   charging    of   capitation    fee   and\nprofiteering by the institution. Further, it was also pointed\nout that in the establishment of an educational institution,\nthe object should not be to make profit, inasmuch as\neducation is essentially charitable in nature. However, there\ncan be a reasonable revenue surplus, which may be\ngenerated by the educational institutions for the purpose of\ndevelopment     of    education       and     their      expansion.\nConsequently, the mere fact that education in one sense, is\nregarded as charitable, the Government cannot appropriate\n25% of the seats of the unaided private educational\ninstitutions on the ground that providing education is\ncharity.   Pai Foundation and Inamdar after holding that\noccupation of education can be regarded as charitable held\nthat the appropriation of seats in an unaided private\neducational institution would amount to nationalization of\nseats and an inroad into their autonomy.         The object and\npurpose of Section 12(1)(c), it may be noted, is not to reduce\ncommercialization.    Pai Foundation and Inamdar have\nclearly denounced commercialization of education.\n\f                                                                  140\n113.     Right to establish and administer and run a private\nunaided educational institution is the very openness of\npersonal freedom and opportunity which is constitutionally\nprotected, which right cannot be robbed or coerced against\nhis will at the threat of non-recognition or non-affiliation.\nRight to establish a private unaided educational institution\nand to make reasonable profit is recognized by Article 19(1)(g)\nso as to achieve economic security and stability even if it is\nfor charity.    Rights protected under Article 19(1)(g) are\nfundamental in nature, inherent and are sacred and valuable\nrights of citizens which can be abridged only to the extent\nthat is necessary to ensure public peace, health, morality etc.\nand to the extent of the constitutional limitation provided in\nthat Article. Reimbursement of fees at the Government rate is\nnot an answer when the unaided private educational\ninstitutions have no constitutional obligation and their\nConstitutional rights are invaded.\n114. Private unaided educational institutions are established\nwith lot of capital investment, maybe with loan and\nborrowings.    To maintain high standard of education, well\nqualified and experienced teachers have to be appointed, at\n\f                                                                     141\ntimes with hefty salary. Well equipped library, laboratory etc\nhave also to be set up. In other words considerable money by\nway of capital investment and overhead expenses would go\ninto for establishing and maintaining a good quality unaided\neducational institution. Section 12(1)(c), in my view, would\namount to appropriation of one's labour and makes an inroad\ninto the autonomy of the institution.      Unaided educational\ninstitutions, over a period of time, might have established\ntheir own reputation and goodwill, a quantifiable asset.\nNobody can be allowed to rob that without their permission,\nnot even the State. Section 12(1)(c) is not a restriction which\nfalls under Article 19(6) but cast a burden on private unaided\neducational institutions to admit and teach children at the\nstate dictate, on a fee structure determined by the State\nwhich, in my view, would abridge and destroy the freedom\nguaranteed to them under Article 19(1)(g) of the Constitution.\n115.   Parliament can enact a social legislation to give effect\nto the Directive Principles of the State Policy, but so far as the\npresent case is concerned, neither the Directive Principles of\nthe State Policy nor Article 21A cast any duty or obligation on\nthe unaided private educational institutions to provide free\n\f                                                                                142\nand compulsory education to children of the age of 6 to 14.\nSection 12(1)(c) has, therefore, no foundation either on the\nDirective Principles of the State Policy or Article 21A of the\nConstitution,    so      as    to   rope    in     unaided    educational\ninstitutions. Directive Principles of the State Policy as well as\nArticle 21A cast the constitutional obligation on the State and\nState alone.       State, cannot offload or outsource that\nConstitutional obligation to the private unaided educational\ninstitutions    and      the   same       can     be   done   only    by    a\nconstitutional provision and not by an ordinary legislation.\n116.    Articles 41, 45 and 46 of Part IV of the Constitution\ncast the duty and constitutional obligations on the State\nunder Article 21A, apart from other constitutional principles\nlaid down by Pai Foundation as well as Inamdar. Section\n12(1)(c) has neither the constitutional support of Article 21A,\nnor the support of Articles 41, 45 or 46, since those\nprovisions cast duty only on the State and State alone. The\npolicies laid down under Articles 41, 45 and 46 can always be\nachieved by carrying out necessary amendment to the\nfundamental rights. However, so far as the present case is\nconcerned,     Article    21A       has    been    enacted    to     cast   a\n\f                                                                  143\nconstitutional obligation on the state and a duty upon the\nState under Articles 41, 45 and 46. I have pointed out that it\nis to get over such situations and for the removal of such\nobstacles       several   constitutional   amendments     were\nnecessitated which I have extensively dealt with in Part II of\nmy judgment.\n117.        Section 12(1)(c) seeks to achieve what cannot be\nachieved directly especially after the interpretation placed by\nPai Foundation and Inamdar on Article 19(1)(g) and Article\n30(1) of the Constitution.      Inamdar has clearly held that\nright to set up, and administer a private unaided educational\ninstitution is an unfettered right, but 12(1)(c) impose fetters\non that right which is constitutionally impermissible going by\nthe principles laid down by Pai Foundation and Inamdar.\nSection 12(1)(c), in my view, can be given effect to, only on\nthe basis of principles of voluntariness and consensus laid\ndown in Pai Foudnation and Inamdar or else, it may violate\nthe rights guaranteed to unaided minority and non-minority\ninstitutions.\n118.        Constitution of India has expressly conferred the\npower of judicial review on Courts and the Legislature cannot\n\f                                                                       144\ndisobey the constitutional mandate or the constitutional\nprinciple laid down by Courts under the guise of social\ninclusiveness.    Smaller inroad like Section 12(1)(c) may lead\nto larger inroad, ultimately resulting in total prohibition of the\nrights guaranteed under Articles 19(1)(g), 29(2) and 30(1) as\ninterpreted by the Pai Foundation and Inamdar. Court, in\nsuch situations, owe a duty to lift the veil of the form and\nappearance to discover the true character and nature of the\nlegislation and if it has the effect of bypassing or ignoring the\nconstitutional principles laid down by the Constitutional\nCourts and violate fundamental rights, the same has to be\nnullified.\n119.         Pai Foundation and Inamdar have not laid down\nany new constitutional principle, but only declared what the\nlaw    is.    Constitutional   principles   laid   by   courts   get\nassimilated in Articles 19(1)(g), 29(2) and 30(1) and can be\nundone not by        legislation, but only by constitutional\namendments.       The object to be achieved by the legislation\nmay be laudable, but if it is secured by a method which\noffends fundamental rights and constitutional principles, the\nlaw must be struck down as unconstitutional.                     The\n\f                                                                     145\nconstitutional provision like Article 19(1)(g) is a check on the\nexercise of legislative power and it is the duty of the\nconstitutional court to protect the constitutional rights of the\ncitizens against any encroachment, as it is often said,\n\"smaller inroad may lead to larger inroad and ultimately\nresulting into nationalization or even total prohibition.\"\nSection 12(1)(c), if upheld would resurrect Unni Krishnan\nscheme   which    was    nullified   by   Pai   Foundation    and\nInamdar.\n120.      I am, therefore, of the view that so far as unaided\neducational institutions both minority and non-minority are\nconcerned the obligation cast under Section 12(1)(c) is only\ndirectory and the said provision is accordingly read down\nholding that it is open to the private unaided educational\ninstitutions, both minority and non-minority, at their volition\nto admit children who belong to the weaker sections and\ndisadvantaged    group    in   the    neighbourhood    in    their\neducational institutions as well as in pre-schools.\n (B)   Aided Educational Institutions, minority and non-\n       minority:\n\f                                                                     146\n121.    Section 12(1)(b) deals with the schools receiving aid or\ngrants to meet whole or part of its expenses from the\nappropriate government or local authority. Those schools are\nbound to provide free and compulsory elementary education\nto such proportion of children subject to a minimum of 25%\ndepending upon its annual recurring aid or grants so\nreceived.   Pai Foundation has clearly drawn a distinction\nbetween aided private educational institutions and unaided\nprivate educational institutions both minority and non-\nminority.   So far as private aided educational institutions,\nboth minority and non-minority are concerned, it has been\nclearly held in Pai Foundation that once aid is provided to\nthose institutions by the Government or any state agency, as\na condition of grant or aid, they can put fetters on the\nfreedom in the matter of administration and management of\nthe institution. Aided institutions cannot obtain the extent of\nautonomy in relation to the management and administration\nas would be available to a private unaided institution.       Pai\nFoundation after referring to St. Stephen judgment and\nArticles 29 and 30 held that even if it is possible to fill up all\nthe seats with minority group the moment the institution is\ngranted aid the institution will have to admit students from\n\f                                                                         147\nnon-minority     group    to   a   reasonable        extent   without\nannihilating the character of the institution. In St. Stephen\ncase which I have already dealt with in the earlier paragraphs\nof the judgment, the Court held that the State may regulate\nintake in a minority aided educational institution with due\nregard to the need of the community of that area where the\ninstitution is intending to serve. However, it was held in no\ncase such intake shall exceed 50% of the annual admission.\nMinority aided educational institutions, it was held, shall\nmake available at least 50% of the annual admission to the\nmembers of the communities other than minority community.\nThe Court also held by admitting a member of a non minority\ninto a minority institution, it does not shed its character and\ncease to be a minority institution and such \"sprinkling of\noutsiders\" would enable the distinct language, script and\nculture of a minority to be propagated amongst non members\nof a particular community and would indeed better serve the\nobject of serving the language, religion and culture of that\nminority.      I may also add that Section 12(1)(b) equally\nsafeguards the rights of the members of religious and\nlinguistic minority communities.     Section 2(e) deals with the\n`child   belonging   to   weaker    section'    of     the    minority\n\f                                                                        148\ncommunities, religious or linguistic, who would also get the\nbenefit of Section 12(1)(b) and, therefore, the contention that\nSection 12(1)(b), as such, would stand against the interest of\nthe    religious   and   linguistic   minority      communities    is\nunfounded.\n122.     Applying the principle laid down in Pai Foundation,\nInamdar, St. Stephen and in Re. Kerala Education Bill, I\nam of the view that clause 12(1)(b) directing the aided\neducational institutions minority and non-minority to provide\nadmission to the children of the age group of 6 to14 years\nwould not affect the autonomy or the rights guaranteed under\nArticle 19(1)(g) or Article 30(1) of the Constitution of India. I,\ntherefore, reject the challenge against the validity of Section\n12(1)(b) and hold that the provision is constitutionally valid.\nPART V\n123.     Private unaided educational institutions, apart from\nchallenging    Section   12(1)(c),    have   also    raised   various\nobjections with regard to other provisions of the Act. Learned\nsenior counsels appearing for them submitted that Sections\n3, 6, 7, 8 and 9 read with Sections 4, 5 and 10 impose duties\n\f                                                                    149\nand obligations upon the appropriate government and local\nauthority and those sections completely answer and fulfill the\nmandate contained in Article 21A as against the State.\nSection 3 recognizes the right of the child to free and\ncompulsory education in a neighbourhood school. Unaided\neducational institutions have only a negative duty of not\ninterfering with the right of the child and not to unreasonably\ninterfere with the realization of those rights and there is no\nobligation to surrender their rights guaranteed under Article\n19(1)(g) and Article 30(1), recognized in Pai Foundation and\nInamdar.     Children     can,    therefore,   enforce      their\nconstitutional and statutory rights against the educational\ninstitutions run by the State, local authority qua aided\neducational institution and not against unaided minority and\nnon-minority educational institutions. It is so declared.\n124.    Petitioners have not raised any objection with regard\nto prohibition imposed under Section 13 against collecting\nthe capitation fee which they are bound to follow even on the\ndeclaration of law, by Pai Foundation and Inamdar.\nPetitioners submitted that a fair and transparent screening\nprocedure is being followed by all the schools.      So far as\n\f                                                                   150\nSection 14 is concerned, petitioners have submitted that\nschools always give opportunity to the child\/parent to\nproduce some authentic proof to ascertain the age of the\nchild. Petitioners, referring to Section 15, submitted that the\nchild has to adhere to the academic procedure laid down by\nthe institutions and there will be no denial of admission to\nthe children subject to the availability of seats.   With regard\nto Section 16, it was contended that the prohibition against\nholding back any student in any class or expelling any\nstudent regardless of how grave the provocation may be,\nimposes unreasonable and arbitrary restriction which would\ncompletely destroy the unique educational system followed by\nsome of the unaided educational institutions.\n125.   Shri Chander Uday Singh, senior counsel appearing in\nWrit Petition (Civil) No. 83 of 2011, submitted that they are\nfollowing   the   International    Baccalaureate     system   of\neducation; the syllabus, curriculum, method of instructions\nare totally different from other schools.    There are no day\nscholars, and all the students have to stay in the Boarding\nand the school fees is also high.        Most of the students\nstudying in the school are not from the neighbourhood but\n\f                                                                   151\nfrom all over the country and abroad.      School has its own\nrules and regulations.     Prohibition of holding back and\nexpulsion of students in an unaided private educational\ninstitution depends upon the academic and disciplinary\nprocedure laid down by the school and its parent body.\nCounsel, referring to Section 17 of the Act, submitted that the\nprohibition of physical punishment and mental harassment is\na welcome provision which the schools follow.\n126.     Learned senior counsel also submitted that some of\ntheir schools are not affiliated or recognized by any State\nEducation Board or the Board constituted by the Central\nGovernment or the Indian Council of Secondary Education\netc. and those schools generally follow the rules laid down by\nthe recognizing body and are, therefore, unable to fulfill the\nnorms and standards specified in the schedule referred to in\nSection 19.\n127.    Counsel appearing for the unaided institutions\ncontended that the curriculum and evaluation procedure laid\ndown by the body affiliating or recognizing the institutions are\nbeing followed by them and the provisions stipulated in\nSection 29(2) are generally being adhered to by their schools.\n\f                                                                      152\nWith regard to Section 23 of the Act, counsels submitted that\nsome of the unaided private educational institutions employ\nthe teachers from outside the country as it encourages cross-\nfertilization of ideas and educational systems and practices\nand the qualifications provided by the institutions may not be\nas prescribed under Section 23 of           the Act and the\nqualifications provided therein may not be sufficient for\nappointment    as   teachers   in   the   schools   affiliated   to\nInternational Baccalaureate system.           Learned counsel\nappearing for the unaided private educational institutions\nalso referred to Rules 9, 11 to 15 and 23 and explained how it\naffects their autonomy and status of their institutions.\n128.      I have extensively dealt with the contentions raised\nby the unaided private educational institutions and I am of\nthe view that not only Section 12(1)(c), but rest of the\nprovisions in the Act are only directory so far as those\ninstitutions are concerned, but they are bound by the\ndeclaration of law by Pai Foundation and Inamdar, like\nthere shall be no profiteering, no maladministration, no\ndemand for capitation fee and so on and they have to follow\nthe general laws of the land like taxation, public safety,\n\f                                                                  153\nsanitation, morality, social welfare etc.\n129.      I may indicate that so far as the rest of the schools\nare concerned, including aided minority and non-minority\neducational institutions, they have necessarily to follow the\nvarious provisions in the Act since I have upheld the validity\nof Section 12(1)(b) of the Act.   Certain objections have also\nbeen raised by them with regard to some of the provisions of\nthe Act, especially by the aided minority community.\nContention was raised that Sections 21 and 22 of the Act,\nread with Rule 3, cast an obligation on those schools to\nconstitute a School Management Committee consisting of\nelected representatives of the local authority which amounts\nto taking away the rights guaranteed to the aided minority\nschools, under Article 30(1) of the Constitution.      Learned\nAdditional Solicitor General has made available a copy of a\nBill, proposing amendment to Section 21, adding a provision\nstating that the School Management Committee constituted\nunder sub-section (1) of Section 21 in respect of a school\nestablished and administered by minority whether based on\nreligion or language, shall perform advisory functions only.\nThe apprehension that the committee constituted under\n\f                                                                       154\nSection    21(1)   would   replace     the   minority    educational\ninstitution is, therefore, unfounded. [Ref. F.No.1-22009-E.E-4\nof Government of India (Annexure A-3)].\n130.       Petitioners have also raised objections against the\nrestrictions imposed in following any screening procedure\nbefore admitting children to their schools under Sections 13\nor 14 of the Act, which according to the petitioners, takes\naway      the   autonomy    of   the     institutions.       Several\nrepresentations were received by the Ministry of Human\nResources and Development, Government of India seeking\nclarification on that aspect and the Ministry issued a\nnotification dated 23.11.2009 under Section 35(1) of the Act\nlaying guidelines to be followed by both unaided and aided\neducational institutions. It was pointed out that the object of\nthe provisions of Section 13(1) read with Section 2(d) is to\nensure that schools adopt an admission procedure which is\nnon-discriminatory, rational and transparent and the schools\ndo not subject children and their parents to admission tests\nand interviews so as to deny admission. I find no infirmity in\nSection 13, which has nexus with the object sought to be\nachieved, that is access to education.\n\f                                                                     155\n131.     Contention was also raised by them against Section\n14(2) which provides that no child shall be denied admission\nin a school for lack of age proof which, according to them, will\ncause difficulty to the management to ascertain the age of the\nchild. Section 14 stipulates that the age of a child shall be\ndetermined on the basis of the birth certificate issued in\naccordance with the provisions of the Birth, Death and\nMarriages Registration Act, 1986, or the other related\ndocuments. The object and purpose of Section 14 is that the\nschool shall not deny access to education due to lack of age\nproof. I find no legal infirmity in that provision, considering\nthe overall purpose and object of the Act.     Section 15 states\nthat a child shall not be denied admission even if the child is\nseeking admission subsequent to the extended period.            A\nchild who evinces an interest in pursuing education shall\nnever be discouraged, so that the purpose envisaged under\nthe Act could be achieved. I find no legal infirmity in that\nprovision.\n132.    Challenge was also made to Section 16 of the Act\nstating that it will lead to indiscipline and also deteriorate the\nquality of the education, which I find difficult to agree with\n\f                                                                   156\nlooking to the object and purpose of the Act. Holding back in\na class or expulsion may lead to large number of drop outs\nfrom the school, which will defeat the very purpose and object\nof the Act, which is to strengthen the social fabric of\ndemocracy and to create a just and humane society.\nProvision has been incorporated in the Act to provide for\nspecial tuition for the children who are found to be deficient\nin their studies, the idea is that failing a child is an unjust\nmortification of the child personality, too young to face the\nfailure in life in his or her early stages of education. Duty is\ncast on everyone to support the child and the child's failure is\noften not due the child's fault, but several other factors. No\nlegal infirmity is found in that provision, hence the challenge\nagainst Section 16 is rejected.\n133.     Petitioners have not raised any objection with regard\nto Section 17, in my view, rightly. Sections 18 and 19 insist\nthat no school shall be established without obtaining\ncertificate of recognition under the Act and that the norms\nand standards specified in the schedule be fulfilled, if not\nalready fulfilled, within a stipulated time. There is nothing\nobjectionable in those provisions warranting our interference.\n\f                                                                  157\nSection 23, in my view, would not take away the freedom of\naided minority educational institutions for the reasons\nalready stated by us. No infirmity is also found with regard to\nSections 24 to 28 of the Act since the object and purpose of\nthose provisions are to provide education of satisfactory\nquality so that the ultimate object of the Act would be\nachieved.\n134.        Learned counsel also submitted that some of the\naided minority and non-minority educational institutions are\nfollowing the curriculum as laid down by independent\nrecognized Boards such as CBSE, ICSE etc. and they are\ncompetent bodies for laying down such procedures and in\ncase those schools are compelled to follow the curriculum\nand evaluation procedure laid down in Section 29, the\nschools would be put to considerable inconvenience and\ndifficulties and may affect the quality of education.\n135.    I am of the view that requiring the minority and non-\nminority institutions to follow the National Curriculum\nFramework or a Curriculum Framework made by the State,\nwould not abrogate the right under Article 19(1)(g) or Article\n30(1) of the Constitution.   Requirement that the curriculum\n\f                                                                  158\nadopted by a minority institution should comply with certain\nbasic norms is in consonance with the values enshrined in\nthe Constitution and cannot be considered to be violative of\nthe rights guaranteed to them under Article 30(1). Further,\nthe curriculum framework contemplated by Section 29(1)\ndoes not subvert the freedom of an institution to choose the\nnature of education that it imparts, as well as the affiliation\nwith the CBSE or other educational boards. Over and above,\nwhat has been prescribed by those affiliating or recognizing\nbodies is that these schools have also to follow the\ncurriculum framework contemplated by Section 29(1) so as to\nachieve the object and purpose of the Act. I, therefore, find\nno infirmity in the curriculum or evaluation procedure laid\ndown in Section 29 of the Act.\n136.     Section 30 of the Act which provides that no child\nshall be required to pass any Board examination till the\ncompletion of elementary education and that on completion of\nelementary education, the child shall be awarded a certificate.\nEducation is free and compulsory for the children of the age 6\nto 14 years and the object and purpose is to see that children\nshould complete elementary education. If they are subjected\n\f                                                                   159\nto any Board Examination and to any screening procedure,\nthen the desired object would not be achieved.        The object\nand purpose of Section 30 is to see that a child shall not be\nheld back in any class so that the child would complete his\nelementary education. The Legislature noticed that there are\na large number of children from the disadvantaged groups\nand weaker sections who drop out of the schools before\ncompleting the elementary education, if promotion to higher\nclass is subject to screening.      Past experience shows that\nmany of such children have dropped out of the schools and\nare being exploited physically and mentally. Universal\nElementary Education eluded those children due to various\nreasons and it is in order to curb all those maladies that the\nAct has provided for free and compulsory education.           I,\ntherefore, find no merit in the challenge against those\nprovisions which are enacted to achieve the goal of universal\nelementary education for strengthening the social fabric of\nthe society.\n137.      Counsel appearing for some of the aided minority\ninstitutions raised a doubt as to whether the Act has got any\nimpact   on    the   Freedom   of    Religion   and   Conscience\n\f                                                                      160\nguaranteed    under   Article   25   insofar   as it   applies to\ninstitutions run by a religious denomination. It was clarified\nby the Union of India that the Act would apply to institutions\nrun by religious denominations in case the institution\npredominantly offers primary education either exclusively or\nin addition to religious instruction. It was pointed out that\nwhere   the   institution   predominantly      provides   religious\ninstructions like Madrasas, Vedic Pathshalas etc. and do not\nprovide formal secular education, they are exempted from the\napplicability of the Act. The Act, therefore, does not interfere\nwith the protection guaranteed under Articles 25 and 26 of\nthe Constitution and the provisions in the Act in no way\nprevent the giving of religious education to students who wish\nto take religious education in addition to primary education.\nArticle 25 makes it clear that the State reserves the right to\nregulate or restrict any economic, financial, political or other\nsecular activities which are associated with religious practice\nand also states that the State can legislate for social welfare\nand reform, even though by doing so it would interfere with\nthe religious practices. Madrasas and Vedic Pathshalas, as I\nhave already indicated, predominantly provide religious\ninstruction and do not provide formal secular education and,\n\f                                                                   161\nhence, they are exempted from the applicability of the Act.\nThe Central Government has now issued Guidelines dated\n23.11.2010 under Section 35(1) of the Act clarifying the above\nposition.    The operative part of the guidelines reads as\nunder:\n           \"3.    Institutions, including Madrasas and\n       Vedic Pathshalas, especially serving religious and\n       linguistic minorities are protected under Articles 29\n       and 30 of the Constitution. The RTE Act does not\n       come in the way of continuance of such\n       institutions, or the rights of children in such\n       institutions.\"\nMadrasas, Vedic Pathshalas and similar institutions serving\nreligious and linguistic minorities as such are, therefore,\nprotected under Articles 29 and 30 of the Constitution from\nthe rigour of the Act.\n138.     The Act has now brought in the concept of public-\nprivate partnership for achieving the goal of Universal\nElementary Education. It also stresses upon the importance\nof preparing and strengthening the schools to address all\nkinds of diversities arising from inequalities of gender, caste,\nlanguage, culture, religious or other disabilities. The concept\nof neighbourhood schools has also been incorporated for the\nfirst time through a legislation and the right of access of the\n\f                                                                       162\nchildren to elementary education of satisfactory and equitable\nquality     has    also   been    ensured.      The   duties   and\nresponsibilities     of   the    appropriate   government,     local\nauthorities, parents, schools and teachers in providing free\nand compulsory education, a system for protection of the\nright of children and a decentralized grievance mechanism\nhas been provided by the Legislature.          Obligation has also\nbeen cast on the State and the local authority to establish\nneighbourhood schools within a period of three years from\nthe commencement of the Act and the Central Government\nand the State Governments have concurrent responsibilities\nfor providing funds for carrying out all the provisions of the\nAct and the duties and responsibilities cast on the local\nauthorities as well. A provision has also been made in the\nAct for pre-school education for children above the age of\nthree years. The purpose is to prepare them for elementary\neducation and to provide early childhood care and education\nfor all children until they complete the age of six years and\nthe appropriate government has to take necessary steps for\nproviding    free pre-school education for such          children.\nFurther, the Act also cast a duty on every parent or guardian\nto admit or cause to be admitted his or her child or ward, as\n\f                                                                163\nthe case may be, for an elementary education in the\nneighbourhood school, which is in conformity with Article\n51A(k) of the Constitution.\n139.      The State has played a dominant role in providing\neducational services through the Government schools, largely\nmanaged by State Governments and local bodies, as well as\nthrough privately managed but publicly funded schools called\ngovernment-aided schools. These aided schools are operated\nby charitable trusts, voluntary organizations, and religious\nbodies but receive substantial funding from the government.\nAccording to the Indian Human Development Survey (IHDS),\n2005 about 67% of students attend government schools,\nabout 5% attend government-aided schools, and 24% attend\nprivate schools. Convents and Madrasas account for about\n1-2%. The survey conducted by IHDS indicates that in 2005\nabout 21% of rural and 51% of urban children were enrolled\nin private schools.   Part of this increase in private school\nenrolment has come about through a decline in enrolment in\ngovernment-aided schools.     In 1994, nearly 22% of rural\nchildren were enrolled in government-aided schools.       By\n2005, this declined to a bare 7% in rural areas and 5% in\n\f                                                                    164\nurban areas.      At an all India level, 72% of children are\nenrolled in government schools, and about 28% are in private\nschools.      The survey further indicates that the children\nbetween 6-14 years old, about 40% participated in private\nsector education either through enrolment in private school\n(20%), through private tuition (13%), or both (7%).           The\ngrowing preference for private schooling and the reliance on\nprivate tutoring, has to be seen in the context of differences\nin admission of children in government and private schools.\nThe quality of education in government schools, due to\nvarious reasons, has gone down considerably. The Act is also\nenvisaged on the belief that the schools run by the\nappropriate     government,    local   authorities,   aided   and\nunaided,      minority   and   non-minority,     would    provide\nsatisfactory quality education to the children, especially\nchildren from disadvantaged and weaker sections.\n140.       Private aided educational institutions, though run\non aid and grant provided by the State, generally the\npayment to such schools is not performance oriented. The\nState Governments provide 100% salary to the teachers on its\nroll on monthly basis and some State Governments would\n\f                                                                 165\nprovide 90%.     Generally, the State Governments do not\nprovide capital cost either for construction or for repair and\nwhenever these schools are aided, the school fee is regulated\nand is generally equal to the fee prevailing in the government\nschools.   The recruitment of teaches by these schools is also\nsubject to the Government regulation like inclusion of a\nrepresentative of the Government in the selection committee,\nor the appointment being subject to the approval of the\nGovernment.\n141.       Currently, all taxes in India are subject to the\neducation cess, which is 3% of the total tax payable. With\neffect from assessment year 2009-10, Secondary and Higher\nSecondary Education Cess of 1% is applicable on the subtotal\nof taxable income. The proceeds of the cess are directed to a\nseparate non lapsable fund called Prarambhik Shiksha Kosh\n(PSK), setup by Government of India, to exclusively cater to\nthe elementary education in India. This fund is under the\ncontrol of the Ministry of Human Resource and Development\n(MoHRD) and is typically utilized for its flagship programmes\n\u00ad Sarva Sikksha Abhiyaan (SSA) and the Mid-day Meal\nScheme (MDMS).\n\f                                                                166\n142.            The statistics would indicate that out of the\n12,50,775 schools imparting elementary education in the\ncountry in 2007-08, 80.2% were all types of government\nschools, 5.8 % private aided schools and 13.1% private\nunaided schools. Almost 87.2% of the schools are located in\nthe rural areas. In the rural areas the proportion of private\nunaided schools is only 9.3% and that of aided schools is\n4.7%. However, in the urban areas, the percentage of private\nunaided and aided schools are as high as 38.6% and 13.4%\nrespectively.\n143.    Out of the total students enrolled in primary classes\nin 2007-08 about 75.4, 6.7 and 17.8% are enrolled in\ngovernment, aided and unaided schools. The total number of\nteachers working in these schools in 2007-08 was 56,34,589\nof which 69.3, 10.4 and 20.7% are teaching in government,\naided and private schools, the average number of teachers\nper school being 3.9, 8.3 and 6.7% respectively.         The\nstatistics would indicate that the Government schools have\nthe highest percentage of teachers who are professionally\ntrained at 43.4%, followed by aided school (27.8%) and\nunaided private schools (only 2.3%).    However, the learning\n\f                                                                  167\nachievements are higher in private schools compared to\nGovernment schools. Going through the objects and reasons\nof the Act, the private unaided educational institutions are\nroped in not due to lack of sufficient number of schools run\nby the appropriate Government, local authorities or aided\neducational institutions, but basically on the principle of\nsocial inclusiveness so as to provide satisfactory quality\neducation.      Some of the unaided educational institutions\nprovide superior quality education, a fact conceded and it is a\nconstitutional obligation of the appropriate Government, local\nauthority and aided schools not only to provide free and\ncompulsory education, but also quality education.\n144.          Positive steps should be taken by the State\nGovernments and the Central Government to supervise and\nmonitor how the schools which are functioning and providing\nquality education to the children function. Responsibility is\nmuch more on the State, especially when the Statute is\nagainst holding back or detaining any child from standard I\nto VIII.\n145.       Mr. Murray N. Rothbard, an eminent educationist and\nProfessor in Economics, in his Book \"Education: Free and\n\f                                                                 168\nCompulsory\" [1999, Ludurg von Mises Institute, Auburn,\nAliana] cautioned that progressive education may destroy the\nindependent thought in the child and a child has little chance\nto develop his systematic reasoning powers in the study of\ndefinite courses. The Book was written after evaluating the\nexperiences of various countries, which have followed free\nand compulsory education for children for several years.\nProhibition of holding back in a class may, according to the\nauthor, result that bright pupils are robbed of incentive or\nopportunity to study and the dull ones are encouraged to\nbelieve that success, in the form of grades, promotion etc.,\nwill come to them automatically. The author also questioned\nthat since the State began to control education, its evident\ntendency has been more and more to act in such a manner\nso as to promote repression and hindrance of education,\nrather than the true development of the individual.        Its\ntendency has been for compulsion, for enforced equality at\nthe lowest level, for the watering down of the subject and\neven the abandonment of all formal teaching, for the\ninculcation of obedience to the State and to the \"group,\"\nrather than the development of self-independence, for the\ndeprecation of intellectual subjects.\n\f                                                                 169\n146.     I am of the view that the opinions expressed by the\nacademicians like Rothbard command respect and cannot be\nbrushed aside as such because, much more than anything,\nthe State has got a constitutional responsibility to see that\nour children are given quality education.   Provisions of the\nstatute shall not remain a dead letter, remember we are\ndealing with the lives of our children, a national asset, and\nthe future of the entire country depends upon their\nupbringing. Our children in the future have to compete with\ntheir counter-parts elsewhere in the world at each and every\nlevel, both in curricular and extra-curricular fields. Quality\neducation and overall development of the child is of prime\nimportance upon which the entire future of our children and\nthe country rests.\n147.      The legislation, in its present form, has got many\ndrawbacks.    During the course of discussion, the necessity\nof constituting a proper Regulatory Body was also raised so\nthat it can effectively supervise and monitor the functioning\nof these schools and also examine whether the children are\nbeing provided with not only free and compulsory education,\nbut quality education.   The Regulatory authority can also\n\f                                                                  170\nplug the loopholes, take proper and steps for effective\nimplementation of the Act and can also redress the\ngrievances of the children.\n148.    Learned Attorney General for India has favoured the\nsetting up of an Adjudicatory\/Regulatory Authority to\ndetermine the question whether compliance with Section\n12(1)(b) and Section 12(1)(c) will have an adverse impact on\nthe financial viability of the school, and if so, to suggest\nremedies and to deal with issues like expulsion etc.\nLearned Attorney General indicated the necessity of a\nstatutory amendment if the Regulatory\/Adjudicatory body\nhas to be set up under the Act.          Proper adjudication\nmechanism may also pave the way for a successful and\neffective public-private partnership for setting up educational\ninstitutions of best quality so that our children will get\nquality education. I am sure that the Government will give\nserious attention to the above aspect of the matter which are\nof prime importance since we are dealing with the future of\nthe children of this country.\nPART VI\n\f                                                               171\nCONCLUSIONS\n 1. Article 21A casts an obligation on the State to provide\n   free and compulsory education to children of the age of\n   6 to 14 years and not on unaided non-minority and\n   minority educational institutions.\n 2. Rights of children to free and compulsory education\n   guaranteed under Article 21A and RTE Act can be\n   enforced against the schools defined under Section 2(n)\n   of the Act, except unaided minority and non-minority\n   schools not receiving any kind of aid or grants to meet\n   their expenses from the appropriate governments or\n   local authorities.\n 3. Section 12(1)(c) is read down so far as unaided non-\n   minority and minority educational institutions are\n   concerned, holding that it can be given effect to only on\n   the   principles     of   voluntariness,   autonomy   and\n   consensus and        not on compulsion or threat of non-\n   recognition or non-affiliation.\n 4. No distinction or difference can be drawn between\n   unaided minority and non-minority schools with regard\n\f                                                               172\n  to appropriation of quota by the State or its reservation\n  policy under Section 12(1)(c) of the Act.       Such an\n  appropriation of seats can also not be held to be a\n  regulatory measure in the interest of the minority within\n  the meaning of Article 30(1) or a reasonable restriction\n  within the meaning of Article 19(6) of the Constitution.\n5. The Appropriate Government and local authority have to\n  establish neighbourhood schools as provided in Section\n  6 read with Sections 8 and 9, within the time limit\n  prescribed in the Statute.\n6. Duty imposed on parents or guardians under Section\n  10 is directory in nature and it is open to them to admit\n  their children in the schools of their choice, not\n  invariably in the neighbourhood schools, subject to\n  availability of seats and meeting their own expenses.\n7. Sections 4, 10, 14, 15 and 16 are held to be directory in\n  their   content   and   application.     The   concerned\n  authorities shall exercise such powers in consonance\n  with the directions\/guidelines laid down by the Central\n  Government in that behalf.\n\f                                                                     173\n8. The provisions of Section 21 of the Act, as provided,\n     would not be applicable to the schools covered under\n     sub-Section (iv) of clause (n) of Section 2.       They shall\n     also not be applicable to minority institutions, whether\n     aided or unaided.\n9.     In   exercise   of   the   powers   conferred    upon   the\n     appropriate Government under Section 38 of the RTE\n     Act, the Government shall frame rules for carrying out\n     the purposes of this Act and in particular, the matters\n     stated under sub-Section (2) of Section 38 of the RTE\n     Act.\n10. The directions, guidelines and rules shall be framed by\n     the    Central    Government,    appropriate      Government\n     and\/or such other competent authority under the\n     provisions of the RTE Act, as expeditiously as possible\n     and, in any case, not later than six months from the\n     date of pronouncement of this judgment.\n11. All the State Governments which have not constituted\n     the State Advisory Council in terms of Section 34 of the\n     RTE Act shall so constitute the Council within three\n     months from today.       The Council so constituted shall\n\f                                                                              174\n     undertake its requisite functions in accordance with the\n     provisions of Section 34 of the Act and advise the\n     Government in terms of clauses (6), (7) and (8) of this\n     order immediately thereafter.\n  12. Central Government and State Governments may set\n     up a proper Regulatory Authority for supervision and\n     effective functioning of the Act and its implementation.\n  13. Madrasas, Vedic Pathshalas etc. which predominantly\n     provide religious instructions and do not provide for\n     secular education stand outside the purview of the Act.\n149.      The Writ Petitions are disposed of as above.              This\nJudgment would have prospective operation and would apply\nfrom the next academic year 2012-13 onwards.                 However,\nadmissions already granted would not be disturbed.                    We\nrecord our deep appreciation for the valuable assistance\nrendered by the counsel appearing for the both sides.\n                                  .......................................J.\n                                  (K. S. RADHAKRISHNAN)\nNew Delhi;\nApril 12, 2012\n\f                                                                    175\nITEM NO.1A              COURT NO.1           SECTIONS PIL &amp; X\n                S U P R E M E     C O U R T   O F    I N D I A\n                               RECORD OF PROCEEDINGS\n                      WRIT PETITION (CIVIL) NO.95 OF 2010\n   SOCIETY FOR UN-AIDED P.SCHOOL OF RAJ.            Petitioner(s)\n                      VERSUS\n   U.O.I &amp; ANR.                                     Respondent(s)\n   With   Writ Petition (C) No.98 of 2010\n   Writ   Petition (C) No.126 of 2010\n   Writ   Petition (C) No.137 of 2010\n   Writ   Petition (C) No.228 of 2010\n   Writ   Petition (C) No.269 of 2010\n   Writ   Petition (C) No.310 of 2010\n   Writ   Petition (C) No.364 of 2010\n   Writ   Petition (C) No.384 of 2010\n   W.P.   (C) No.22 of 2011\n   W.P.   (C) No.24 of 2011\n   W.P.   (C) No.21 of 2011\n   W.P.   (C) No.47 of 2011\n   W.P.   (C) No.59 of 2011\n   W.P.   (C) No.50 of 2011\n   W.P.   (C) No.83 of 2011\n   W.P.   (C) No.88 of 2011\n   W.P.   (C) No.99 of 2011\n   W.P.   (C) No.102 of 2011\n   W.P.   (C) No.104 of 2011\n   W.P.   (C) No.86 of 2011\n   W.P.   (C) No.101 of 2011\n   W.P.   (C) No.115 of 2011\n   W.P.   (C) No.154 of 2011\n   W.P.   (C) No.126 of 2011\n   W.P.   (C) No.118 of 2011\n   W.P.   (C) No.186 of 2011\n   W.P.   (C) No.148 of 2011\n   W.P.   (C) No.176 of 2011\n   W.P.   (C) No.205 of 2011\n   W.P.   (C) No.238 of 2011\n   W.P.   (C) No.239 of 2011\n   Date: 12\/04\/2012   These Matters were called on for Judgement\n                      today.\n                                                          ...2\/-\n\f                                                              176\n                              - 2 -\nFor Petitioner(s)    Dr.   Rajeev Dhavan,Sr.Adv.\nIn WP 95\/10,98\/10,   Ms.   Shobha,Adv.\n126\/10,137\/10 &amp;      Ms.   Bijoylakshmi Das,Adv.\n228\/10:              Ms.   Hema Shekhawat,Adv.\n                     Ms.   Indira Ramesh,Adv.\n                     Mr.   Raghav Shankar,Adv.\n                     Mr.   Vedanta Kumar,Adv.\n                     Mr.   Abeer Kumar,Adv.\n                     Mr.   Amit Mittal,Adv.\nIn WP 269\/10         Mr. T.R. Andhyarujina,Sr.Adv.\n                     Mr. Romy Chacko,Adv.\n                     Mr. Ambar Qamaruddin,Adv.\nIn WP 310\/10 &amp;       Mr.   Vikash Singh,Sr.Adv.\n59\/2011:             Mr.   Pukhrambam Ramesh Kumar,Adv.\n                     Ms.   Shobana Masters,Adv.\n                     Mr.   Rahul Dhawan,Adv.\n                     Mr.   Vishesh Issar,Adv.\n                     Mr.   Basavaraj,Adv.\n                     Mr.   Akshay Arora,Adv.\nIn WP 364\/10         Mr.   P.I. Jose,Adv.\n                     Mr.   Anupam Mishra,Adv.\n                     Mr.   B.K. Mishra,Adv.\n                     Mr.   Vivek Kandari,Adv.\nIn WP 384\/10         Mr. Achintya Dvivedi,Adv.\n                     Mr. Neeraj Shekhar,Adv.\nIn WP 21\/11          Mr. Anupam Lal Das,Adv.\n                     Mr. Arpit Gupta,Adv.\nIn WP 22\/11          Ms.   Madhvi Divan,Adv.\n                     Mr.   Sanjeev K. Kapoor,Adv.\n                     Mr.   Nitin Massey,Adv.\n                     Ms.   Saman Ahsan,Adv.\n                     for   M\/s. Khaitan and Co.,Advs.\nIn WP 24\/11          Dr.   Rajiv Dhawan,Adv.\n                     Mr.   Sushil D. Salwan,Adv.\n                     Mr.   Vedanta Varma,Adv.\n                     Mr.   Abeer Kumar,Adv.\n                     for   M\/s. Karanjawala and Co.,Advs.\n                                                     ...3\/-\n\f                                                           177\n                           - 3 -\nIn WP 47\/11       Mr.   Naveen R. Nath,Adv.\n                  Mr.   Darpan K.M.,Adv.\n                  Ms.   Lalit Mohini Bhat,Adv.\n                  Ms.   Amrita Sharma,Adv.\nIn WP 50\/11:      Mr. T.R. Andhyarujina,Sr.Adv.\n                  Mr. Ambar Qamaruddin,Adv.\n                  Mr. Romy Chacko,Adv.\nIn WP 83\/11:      Mr. Vinay Navare,Adv.\n                  Mr. Keshav Ranjan,Adv.\n                  Mr. Abha R. Sharma,Adv.\nIn WP 88\/11:      Mr. Vijay Kumar,Adv.\n                  Mr. Pankaj Kumar,Adv.\n                  Mr. Vishwajit Singh,Adv.\nIn WP 99\/11:      Mr. P.D. Gupta,Adv.\n                  Mr. Kamal Gupta,Adv.\n                  Mr. Gagan Gupta,Adv.\nIn WP 102\/11:     Mr. Sachin J. Patil,Adv.\n                  Ms. Chandan Ramamurthi,Adv.\nIn WP 86\/11 &amp;     Mr. Soumya Chakraborty,Adv.\nWP 101\/2011:      Mr. K.K. Jairpuriar,Adv.\nIn WP 148\/2011:   Mr. Anuj Puri,Adv.\n                  Mr. Kunal Verma,Adv.\nIn WP 104\/11:     Mr.   K. Pararasan,Sr.Adv.\n                  Mr.   V. Balaji,Adv.\n                  Ms.   Aarthi Rajan,Adv.\n                  Mr.   Zoheb Hossain,Adv.\n                  Mr.   Rakesh K. Sharma,Adv.\n                  Mr.   D.S. Mahra,Adv.\n                  Mr.   Satish Parasaran,Adv.\nIn WP 115\/2011:   Mr.   Shekhar Naphade,Sr.Adv.\n                  Mr.   C. Rshmikant,Adv.\n                  Mr.   Gaurav Joshi8,Adv.\n                  Mr.   Mahesh Agarwal,Adv.\n                  Mr.   Rishi Agarwal,Adv.\n                  Mr.   E.C. Agrawala,Adv.\n                  Mr.   Piyush Raheja,Adv.\n                  Ms.   Radhika Gautam,Adv.\n                  Mr.   Ankit Shah,Adv.\n                                                  ...4\/-\n\f                                                               178\n                          - 4 -\nIn WP 118\/2011:    Mr.   K. Parasaran,Sr.Adv.\n                   Mr.   R. Balasubramanian,Sr.Adv.\n                   Mr.   V. Balaji,Adv.\n                   Mr.   A. Subba Rao,Adv.\n                   Mr.   Narendra Kumar,Adv.\nIn WP 154\/2011     Mr. D.K. Pandey,Adv.\n                   Mr. Amit Pawan,Adv.\nIn WP 126\/2011     Mr.   B.D. Das,Adv.\n                   Mr.   Manoj V. George,Adv.\n                   Ms.   Shilpam George,Adv.\n                   Mr.   N. Neyyappam,Adv.\n                   Mr.   Rauf Rahim,Adv.\nIn WP 176\/2011:    Mr.   Shekhar Naphade,Sr.Adv.\n                   Mr.   P. Ramesh Kumar,Adv.\n                   Mr.   Rahul Dhawan,Adv.\n                   Mr.   Vishesh Issar,Adv,.\n                   Ms.   Shobana Masters,Adv.\n                   Mr.   Anant Bhushan,Adv.\nIn WP 205\/2011:    Mr.   R. Balasubramanian,Sr.Adv.\n                   Mr.   V. Balaji,Adv.\n                   Mr.   Xavier Arulraj,Adv.\n                   Mr.   C. Kannan,Adv.\n                   Mr.   Rakesh K. Sharma,Adv.\nIn WP 186\/2011:    Mr. B.D. Das,Adv.\n                   Mr. Manoj V. George,Adv.\n                   Mr. Aniruddha P. Mayee,Adv.\nIn WP 238\/2011 &amp;   Mr. S. Ravi Shankar,Adv.\nWP 239\/2011:       Mr. R. Yamunah Nachiar,Adv.\n                   Mr. Sharath,Adv.\nFor Impleadment:   Mr. Vikramjit Banerjee,Adv.\n                   Ms. Shally Bhasin Maheshwari,Adv.\n                   Mr. Rishi Maheshwari,Adv.\n                   Dr. M.P. Raju,Adv.\n                   Dr. Ashwani Bhardwaj,Adv.\n                   Ms. Prabha Swami,Adv.\n                                                      ...5\/-\n\f                                                                179\n                              - 5 -\nFor Intervenor(s):   Mr.   Shekhar Naphade,Sr.Adv.\n                     Mr.   C. Rashmikant,Adv.\n                     Mr.   Gaurav Joshi,Adv.\n                     Mr.   Mahesh Agarwal,Adv.\n                     Mr.   Rishi Agarwal,Adv.\n                     Mr.   E.C. Agrawala,Adv.\n                     Mr.   Piyush Raheja,Adv.\n                     Ms.   Radhika Gautam,Adv.\n                     Mr.   Ankit Shah,Adv.\nI.A. No.7:           Ms. Menaka Guruswamy,Adv.\n                     Mr. Bipin Aspatwar,Adv.\n                     Mr. Mohit Kumar Shah,Adv.\n                     Mr.   Huzefa Ahmadi,Adv.\n                     Mr.   Pradhuman Gohil,Adv.\n                     Mr.   Vikas Singh,Adv.\n                     Mr.   S. Hari Haran,Adv.\n                     Ms.   Charu Mathur,Adv.\nI.A. No.14:          Dr. Rajeev Dhavan,Sr.Adv.\n                     Mr. Nikhil Nayyar,Adv.\n                     Mr. T.V.S. Raghavendra Sreyas,Adv.\nIn I.A. No.15:       Mr. Divya Jyoti Jaipuriar,Adv.\n                     Ms. Jyoti Mendiratta,Adv.\n                     Ms. Puja Sharma,Adv.\n                     Mr. Amar Dave,Adv.\n                     Ms. Garima Parshad,Adv.\n                     Mr. K. Gautham,Adv.\n                     Ms. Radhika Gautam,Adv.\n                     Mr. E.C. Agrawala,Adv.\n                     Mr. Aneesh Kumar Gupta,Adv.\n                     Mr. Gopal Sankaranarayanan,Adv.\n                     Mr. Rohit Bhat,Adv.\n                     Mr. Senthil Jagadeesan,Adv.\n                     Mr. Sanjay Kumar Visen,Adv.\n                     Mr. K.N. Mishra,Adv.\n                     Mr. Raman Kumar Srivastava,Adv.\n                     Mr. Ashish Wad,Adv.\n                     M\/s. J.S. Wad and Co.,Advs.\n                                                       ...6\/-\n\f                                                         180\n                           - 6 -\nFor Respondent(s)   Mr.   Goolam E. Vahanvati,AG.\n                    Ms.   Indira Jaising,ASG.\n                    Mr.   Rohit Sharma,Adv.\n                    Mr.   Anoopam N. Prasad,Adv.\n                    Mr.   Nishanth Patil,Adv.\n                    Ms.   Naila Jung,Adv.\n                    Mr.   Anandh Kannan,Adv.\n                    Ms.   Supriya Jain,Adv.\n                    Mr.   S.S. Rawat,Adv.\n                    Ms.   Rekha Pandey,Adv.\n                    Mr.   I.J. Singh,Adv.\n                    Mr.   D.S. Mahra,Adv.\nFor Maharashtra:    Mr. Sanjay V. Kharde,Adv.\n                    Ms. Asha G. Nair,Adv.\nFor Bihar:          Mr. Gopal Singh,Adv.\n                    Mr. Manish Kumar,Adv.\nFor Puducherry:     Mr. V.G. Pragasam,Adv.\nFor Tamil Nadu:     Mr. S. Thananjayan,Adv.\nFor Andhra Pradesh: Mr. G.N. Reddy,Adv.\n                    Mr. C. Kannan,Adv.\nState of Haryana:   Mr. Manjit Singh,Addl.Adv.Genl.\n                    Mr. Tarjit Singh,Adv.\n                    Mr. Kamal Mohan Gupta,Adv.\n        Hon'ble the Chief Justice pronounced His\n   Lordship's judgement on behalf of Himself and\n   Hon'ble Mr. Justice Swatanter Kumar disposing of\n   writ petitions with no order as to costs.\n        Hon'ble    Mr. Justice  K.S.   Radhakrishnan\n   pronounced His Lordship's judgement disposing of\n   writ petitions.\n   Conclusion (according to majority):\n   \"20.       Accordingly, we hold that the Right of\n   Children to Free and Compulsory Education Act, 2009\n   is constitutionally valid and shall apply to the\n   following:\n                                                ...7\/-\n\f                                                            181\n                          - 7 -\n (i)       a school established, owned or controlled\n           by the appropriate Government or a local\n           authority;\n (ii)      an aided school including aided minority\n           school(s) receiving aid or grants to meet\n           whole or part of its expenses from the\n           appropriate   Government    or   the   local\n           authority;\n (iii)     a school belonging to specified category;\n           and\n (iv)      an   unaided    non-minority   school    not\n           receiving any kind of aid or grants to meet\n           its    expenses    from   the    appropriate\n           Government or the local authority.\n      However, the said 2009 Act and in particular\n Sections   12(1)(c)   and   18(3)   infringes   the\n fundamental freedom guaranteed to unaided minority\n schools under Article 30(1) and, consequently,\n applying the R.M.D. Chamarbaugwalla v. Union of\n India [1957 SCR 930] principle of severability,\n the said 2009 Act shall not apply to such schools.\n  21. This judgment will operate from today.    In\n other words, this will apply from the academic\n year 2012-13.       However, admissions given by\n unaided    minority     schools  prior   to   the\n pronouncement of this judgment shall not be\n reopened.\n 22. Subject to what is stated above, the writ\n petitions are disposed of with no order as to\n costs.\"\n         Interlocutory applications are also disposed\n of.\n       [ T.I. Rajput ]              [ Madhu Saxena ]\n        A.R.-cum-P.S.             Assistant Registrar\n[Two Signed Reportable Judgements are placed on the file]<\/pre>\n<p>&nbsp;<\/p>\n","protected":false},"excerpt":{"rendered":"<p>1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (C) NO. 95 OF 2010 Society for Un-aided Private Schools of Rajasthan &#8230; Petitioner(s) versus U.O.I. &amp; Anr. &#8230;Respondent(s)<\/p>\n","protected":false},"author":1,"featured_media":6057,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[],"class_list":["post-3142","post","type-post","status-publish","format-standard","has-post-thumbnail","category-4"],"_links":{"self":[{"href":"https:\/\/www.xn--4scekqbpyn4fbh2dwe.xn--2scrj9c\/index.php?rest_route=\/wp\/v2\/posts\/3142","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.xn--4scekqbpyn4fbh2dwe.xn--2scrj9c\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.xn--4scekqbpyn4fbh2dwe.xn--2scrj9c\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.xn--4scekqbpyn4fbh2dwe.xn--2scrj9c\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.xn--4scekqbpyn4fbh2dwe.xn--2scrj9c\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=3142"}],"version-history":[{"count":1,"href":"https:\/\/www.xn--4scekqbpyn4fbh2dwe.xn--2scrj9c\/index.php?rest_route=\/wp\/v2\/posts\/3142\/revisions"}],"predecessor-version":[{"id":6671,"href":"https:\/\/www.xn--4scekqbpyn4fbh2dwe.xn--2scrj9c\/index.php?rest_route=\/wp\/v2\/posts\/3142\/revisions\/6671"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.xn--4scekqbpyn4fbh2dwe.xn--2scrj9c\/index.php?rest_route=\/wp\/v2\/media\/6057"}],"wp:attachment":[{"href":"https:\/\/www.xn--4scekqbpyn4fbh2dwe.xn--2scrj9c\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=3142"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.xn--4scekqbpyn4fbh2dwe.xn--2scrj9c\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=3142"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.xn--4scekqbpyn4fbh2dwe.xn--2scrj9c\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=3142"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}