If these (examined in the previous part) were the reasons by CJ Kapadia and Justice Swatanter Kumar for upholding the constitutional validity of the RTE Act, Justice Radhakrishnan gave the following reasons in his dissenting judgment.

To understand the scope and intent of Art 21A, Justice Radhakrishnan relied on the legislative history of Article 21-A.

In pursuance of the Supreme Court judgment in Unnikrishnan, the Department of Education and Human Resources, Government of India drafted a Bill [Constitution (Eighty-third Amendment) Bill, 1997] so as to insert a new Article 21A in the Constitution, with an intent to make right to education a fundamental right, which read as follows:

21A. Right to education.

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

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

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

It was therefore clear that the intention of the legislature, while drafting the said article was to not make any law in relation to the unaided educational institutions.

However, the Law Commission suo moto took up the issue of right to education in its 165th Report in 1998. Referring to the Constitution (Eighty-third Amendment) Bill, 1997, Law Commission in its report in paragraph 6.1.4 stated:

6.1.4 (page 165.35): The Department of Education may perhaps be right in saying that as of today the private educational institutions which are not in receipt of any grant or aid from the State, cannot be placed under an obligation to impart free education to all the students admitted into their institutions. However, applying the ratio of Unnikrishnan case, it is perfectly legitimate for the State or the affiliating Board, as the case may be, to require the institution to admit and impart free education to fifty per cent of the students as a condition for affiliation or for permitting their students to appear for the Government/Board examination. To start with, the percentage can be prescribed as twenty. Accordingly, twenty per cent students could be selected by the concerned institution in consultation with the local authorities and the parent-teacher association. This proposal would enable the unaided institutions to join the national endeavour to provide education to the children of India and to that extent will also help reduce the financial burden upon the State.”

Following the recommendation of the Law Commission, clause (3) from Article 21A was deleted. Therefore, it is clear that the Law Commission report, report of the Parliamentary Standing Committee, judgment in UnniKrishnan etc. were the basis on which the Constitution (Ninety-third Amendment) Bill, 2001 was prepared and presented.

After the deletion of clause (3), Art 21A read like this –

“21A. Right to Education. – The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine”. This Bill was passed after Presidential Assent on 12.12.2002.

However, Justice Radhakrishnan makes an important observation at this stage. He brings to notice the Supreme Court decisions in TMA Pai and Inamdar, which examined the correctness of the ratio laid in Unnikrishnan and held it as unconstitutional. What is more interesting is that in Pai Foundation, the Supreme Court specifically held that the casting of burden on some students to pay for the education of others amounts to cross-subsidy, and held it unconstitutional. Justice Radhakrishnan points out that the judgment in Pai Foundation was pronounced on 31.10.2002 and 25.11.2002 and Article 21A was inserted in the Constitution on 12.12.2002, but the basis for the introduction of Article 21A and the deletion of original clause (3) from Article 21A, was the judgment of Unnikrishnan – which was held unconstitutional in Pai Foundation.

“Parliament, it may be noted, was presumed to be aware of the judgment in Pai Foundation, and hence, no obligation was cast on unaided private educational institutions but only on the State, while inserting Article 21A” – J. Radhakrishnan declared.

Relying heavily on the judgments in Inamdar and Pai Foundation, Justice Radhakrishnan explains –

What emerges is that so far as unaided educational institutions are concerned, whether they are established and administered by minority or non-minority communities, they have no legal obligation in the matter of seat sharing and upto the level of under-graduate education they enjoy total freedom. State also cannot compel them to give up a share of the available seats to the candidates chosen by the State

Wearing these glasses, J.Radhakrishnan then proceeds to interpret Art 21A. He says –

Article 21A has used the expression “State shall provide” and not “provide for” hence the constitutional obligation to provide education is on the State and not on non-state actors, the expression is clear and unambiguous and to interpret that expression to mean that constitutional obligation or responsibility is on private unaided educational institutions also, in my view, doing violence to the language of that expression. The obligation of the State to provide free and compulsory education is without any limitation. Parliament in its wisdom has not used the expression “provide for”. If the preposition “for” had been used then the duty of the State would not only be to provide education to those who require it but to provide for education or rather to see that it is provided”.

Thus, J. Radhakrishnan arrives at the conclusion that Art 21A casts an obligation on the State and State alone, and not on the private parties.

Further, while dealing with the correlation of Art 21A with RTE Act, he proceeds to analyse the position of socio-economic rights in various countries. After screening through a number of decisions by the Supreme Courts of South Africe, Venezueala and other countries, he concludes that that even in the jurisdictions where socio-economic rights have been given the status of constitutional rights, those rights are available only against State and not against private actors, like the private schools, private hospitals etc., unless they get aid, grant or other concession from the State. He points out that in all these countries that have made socio-economic rights justiciable, an important principle followed is that in the enjoyment of socio-economic rights, the beneficiaries are not allowed to make an inroad into the rights guaranteed to other citizens. Giving these reasons, J.Radhakrishnan concludes that Art 21A does not cast obligation on private parties, and therefore reads down Sec 12 of the RTE Act, holding that the said provision can be given effect to only on the basis of voluntariness, autonomy and not on compulsion and threat of non-recognition.

The reasoning J. Radhakrishnan expounded while explaining the correlation of the RTE Act with Art 19(1)(g) are worth extracting in full.

Private unaided educational institutions are established with lot of capital investment, maybe with loan and borrowings. To maintain high standard of education, well qualified and experienced teachers have to be appointed, at times with hefty salary. Well equipped library, laboratory etc have also to be set up. In other words considerable money by way of capital investment and overhead expenses would go into for establishing and maintaining a good quality unaided educational institution. Section 12(1)(c), in my view, would amount to appropriation of one’s labour and makes an inroad into the autonomy of the institution. Unaided educational institutions, over a period of time, might have established their own reputation and goodwill, a quantifiable asset. Nobody can be allowed to rob that without their permission, not even the State. Section 12(1)(c) is not a restriction which falls under Article 19(6) but casts a burden on private unaided educational institutions to admit and teach children at the state dictate, on a fee structure determined by the State which, in my view, would abridge and destroy the freedom guaranteed to them under Article 19(1)(g) of the Constitution.

J. Radhakrishnan also anxiously examined the constitutional validity of enactments, which envisage social inclusiveness but in the process encroach upon fundamental rights. He highlighted that –

The Constitution of India has expressly conferred the power of judicial review on Courts and the Legislature cannot disobey the constitutional mandate or the constitutional principle laid down by Courts under the guise of social inclusiveness. Smaller inroad like Section 12(1)(c) may lead to larger inroad, ultimately resulting in total prohibition of the rights guaranteed under Articles 19(1)(g), 29(2) and 30(1) as interpreted by the Pai Foundation and Inamdar. Court, in such situations, owe a duty to lift the veil of the form and appearance to discover the true character and nature of the legislation and if it has the effect of bypassing or ignoring the constitutional principles laid down by the Constitutional Courts and violate fundamental rights, the same has to be nullified.

The constitutional provision like Article 19(1)(g) is a check on the exercise of legislative power and it is the duty of the constitutional court to protect the constitutional rights of the citizens against any encroachment, as it is often said, “smaller inroad may lead to larger inroad and ultimately resulting into nationalization or even total prohibition.”

Elucidating the above reasons, J. Radhakrishnan read out the RTE Act, concluding that the provisions of RTE Act can be given effect to only on the basis of voluntariness and not on compulsion and threat of non-recognition.

(Tejasvi Surya is Founder-President of the Bangalore based student organisation, “Arise India Movement”. He regularly participates in news channel discussions on socio-political and youth related issues and contributes articles to news paper on current and political affairs. He is presently a student of law in Bangalore Institute of Legal Studies)

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Tejasvi Surya