The question of right to education is not a new one to our country’s socio-political and legal discourse. The idea of free and compulsory education is as old as our constitution – which through the Directive Principles promised free and compulsory education to all children until they complete fourteen years of age.
This constitutional promise was read into Article 21 (Right to Life) of the Constitution by various pronouncements of the Supreme Court. The Apex court observed that the right education is a fundamental right guaranteed under Article 21 of the Constitution as dignity of individuals cannot be assured unless accompanied by right to education. To give effect to Art 45 and these judicial pronouncements, the Parliament decided to insert Art 21-A to the Constitution to make the right to education justiciable.
Before proceeding further, it would be beneficial for us to extract Article 21-A for our understanding.
Right to Education.¬ The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine
In pursuance of the said constitutional amendment, the government decided to enact the Right of Children to Free and Compulsory Education Act, popularly known as the RTE Act in 2009, which required all schools – including the private unaided ones – to provided free and compulsory education for children.
The Act mandated private unaided schools to admit 25% of their class strength from `weaker sections and disadvantaged groups’, sponsored by the government – a move that was challenged by various private schools in the Supreme Court.
This article attempts to make a comparative analysis of the contentions raised, the majority and minority view, the reasons enunciated by the learned judges, the conclusions drawn and importantly, the future implications of the judgment.
The Supreme Court in the Society for Unaided Private Schools V Union Of India (WPNO. 95 OF 2010) answered the contentious raised by the private schools by anxiously examining the interplay between 21A and 19(1)(g) and the challenged sections of the RTE Act. The court, by a majority decision held that article 21A was inserted to give effect to Art 45 (as it stood then) of the directive principles and it clearly envisaged the participation of private players in the endeavour of providing education. It also examined the validity of Sec 12 of the RTE Act, which mandated private unaided institutions to provide free education to up to 25% students belonging to the ‘weaker and disadvantaged groups’, and concluded that it was a reasonable restriction within the permissible limits and therefore would not transgress Art 19(1)(g), which promises freedom of occupation, trade or business.
However, in the minority dissenting judgment, J. Radhakrishnan opined that the liability under 21A was on the State and State alone. He held that going by the ratio laid down in TMA Pai and Inamdar – judgments which were delivered by the SC well before the insertion of 21A, it could be presumed that the Parliament did not intend to cast obligations on private institutions. He concluded that asking private unaided institutions to provide free education to students selected by the state would amount to unreasonable restriction on the fundamental right of the institutions, guaranteed by 19(1)(g), and upheld by Supreme Court in Inamdar. He therefore read down the provisions of the Act to apply only to the state owned schools.
The basic questions that were to be answered by the Supreme Court were–
1.Whether Art 21A casts an obligation on the private unaided institutions to provide free and compulsory education to children of the age of 6 to 14?
2. Do the provisions of the RTE Act, which make it mandatory for private unaided non-minority and minority institutions to admit 25% students selected by the state from the ‘socially and economically disadvantaged groups’, transgress the constitutional limitations of Art 19(1)?
To answer the above questions, the interplay between Art 21A and Art 19(1) with the relevant provisions of the RTE Act were examined.
The Government contended that ‘the values of equality, social justice and democracy and the creation of just and humane society could be achieved only through a provision of inclusive elementary education by admitting children belonging to disadvantaged group and weaker sections of the society in all schools. The government said that the responsibility for providing education to such children was not only of the state and institutions supported by the state but also schools which are not dependent on government funds’.
It was argued that it is the state’s duty to enforce the fundamental rights guaranteed to children of the age of 6 to 14 years to free and compulsory education, as promised by Article 21-A, and it was to achieve this objective, that the RTE Act was enacted.
Interestingly, it was argued that Article 21A is a socio-economic right which must get priority over other fundamental rights under Article 19(1)(g), because unlike other rights it does not operate merely as a limitation on the powers of the state but it requires affirmative state action to protect and fulfil the rights guaranteed.
On the other hand, private unaided schools submitted that Article 21A casts an obligation on the state and state alone to provide free and compulsory education to children from weaker sections. They argued that Article 21A or Article 45 does not even remotely indicate any idea of compelling the unaided educational institutions to admit children from the ‘weaker sections’ in violation of the rights guaranteed under the Constitution. Hence, as no constitutional obligation is cast on the private educational institutions under Article 21A, the State cannot through legislation transfer/offload its constitutional duty on the private educational institutions.
In addition, it was presented that Art 19(1)(g) guarantees “core individual rights”, (i.e freedom of enterprise, occupation, business or trade etc) to the educational institutions, which always have universal dimensions, while “socio-economic rights” only ‘envisaged the sectional interests of a set of people and therefore the core individual rights because of their universal nature must outweigh the socio-economic rights’.
Importantly, it was urged that the constitutional concepts and interpretations given by the Supreme Court in Pai Foundation and Inamdar cases cannot be undone by mere legislation.
Another contention, which in the view of the author is most significant, was that the concept of social inclusiveness cannot be achieved by abridging or depriving the fundamental rights guaranteed to the citizens who have established and are administering their institutions without any aid or grant from the State but by investing their own capital. Social inclusiveness has to be progressively achieved only by the State and state owned agencies.
Judgment – The Majority View
While speaking on the scope of Art 21A, Chief Justice Kapadia observed that way back in 1952, the Supreme Court in State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga [(1952) SCR 889], had illustrated how a directive principle can guide the Court in interpreting enactments when the question to be decided was of a conflict between a directive principle and a fundamental right. He noted that fundamental rights had to be interpreted ‘in the light of the directive principles’.
On Art 21A, he observed that as the very content of Article 21A comes from the reading of Articles 41 and Article 45 (as it then stood before the Constitution (Eighty sixth Amendment) Act, 2002), the directive principles have a large bearing on Art 21A.
He explained that by judicial decisions of the Supreme Court, right to education had been read into right to life in Art 21. Because Art 21 is the core of the Constitution around which Art 14, Art 19 and others revolve, all other rights should be subservient to Article 21. And as Art 21A merely makes the right to education – a right already read under Art 21 – specifically justiciable, the restrictions on private unaided educational institutions by 21A is a reasonable restriction coming within the permissible limitation of Art 19(1)(g) (right to establish and administer an educational institution).
In addition, he mentioned that by a plain reading of Art 21A, it is clear that the obligation to provide free and compulsory education is on the State, but the manner in which the State chooses to discharge its obligation has been left to the discretion of the State. As a result, the State may decide to provide free and compulsory education to all children of the specified age through its own schools or through government aided schools or through unaided private schools.
Further, he noticed that ‘earmarking of seats for children belonging to a specified category who face financial barrier in the matter of accessing education satisfies the test of classification in Article 14 (equality before law and equal protection of laws)’.
On the question of whether the constitutional principles upheld in TMA Pai and Inamdar – cases in which the Supreme Court had explicitly held that the right to establish and administer an educational institution is an ‘unfettered right’ guaranteed under Art 19(1)(g), as long as the activity remains charitable – applies to the present case, the CJ observed that in the TMA Pai and Inamdar cases the questions concerned were not the correlation between Art 21, 21A and 19(1)(g). Moreover, he held that TMA Pai and Inamdar were dealing with a different class of educational institutions – namely, higher education institutions – whereas the present case was concerned with primary education institutions. For that reason, he concluded that the principles laid down in those two cases would have no bearing on the present case.
In connection to the applicability of the RTE Act to private unaided minority institutions, the Chief Justice explained that the ruling in Inamdar – which held that there shall be no difference between unaided minority and non-minority institutions – was effectively overruled by the Constitution (Ninety-third Amendment) Act, 2005 by which Article 15 was amended. Firstly whereas Supreme Court in P.A. Inamdar had stated that there shall be no reservation in private unaided colleges, the Amendment decreed that there shall be reservations; secondly, whereas the Supreme Court in P.A. Inamdar had said that there shall be no difference between the unaided minority and non-minority institutions, the Amendment decreed that there shall be a difference. In other words, the constitutional amendment made the right of unaided minority institutions absolute under Art 30(1). Therefore, applying the ‘doctrine of severability’ he held the provisions of the RTE Act in regard to the unaided minority institutions as non-applicable.
(The Minority Judgment and the Criticism will be examined in the next part.)
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