TaxTMI 
TaxTMI 
2012 (4) TMI 648
X X X X Extracts X X X X
X X X X Extracts X X X X
....ut the various provisions of the 2009 Act as well as the issues which arise for determination, the core issue concerns the constitutional validity of the 2009 Act. Introduction 3. To say that "a thing is constitutional is not to say that it is desirable" [see Dennis v. United States, (1950) 341 US 494]. 4. A fundamental principle for the interpretation of a written Constitution has been spelt out in R. v. Burah [reported in (1878) 5 I.A. 178] which reads as under: "The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the Constitution by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited it is not for any Court to inquire further, or to enlarge constructively those conditions and restrictions". 5. Education is a process which engages many differe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing the elementary education. An educational institution is charitable. Advancement of education is a recognised head of charity. Section 3(2) has been enacted with the object of removing financial barrier which prevents a child from accessing education. The other purpose of enacting Section 3(2) is to prevent educational institutions charging capitation fees resulting in creation of a financial barrier which prevents a child from accessing or exercising its right to education which is now provided for vide Article 21A. Thus, sub-Section (2) provides that no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing or completing the elementary education. Section 4 inter alia provides for special provision for children not admitted to or who have not completed elementary education. Section 5 deals with the situation where there is no provision for completion of elementary education, then, in such an event, a child shall have a right to seek transfer to any other school, excluding the school specified in su....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed or can function without obtaining a certificate of recognition from the appropriate authority. The appropriate authority shall be obliged to issue the certificate of recognition within the prescribed period specifying the conditions there for, if the school fulfills the norms and standards specified under Sections 19 and 25 read with the Schedule to the 2009 Act. In the event of contravention of the conditions of recognition, the prescribed authority can withdraw recognition after giving an opportunity of being heard to such school. The order of withdrawal of recognition should provide a direction to transfer the children studying in the de-recognised school to be admitted to the specified neighbourhood school. Upon withdrawal of recognition, the de-recognised school cannot continue to function, failing which, is liable to pay fine as per Section 19(5). If any person establishes or runs a school without obtaining certificate of recognition, or continues to run a school after withdrawal of the recognition, shall be liable to pay fine as specified in Section 19(5). The norms and standards for establishing or for grant of recognition to a school are specified in Section 19 read wit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s to observe, that if there is inadequate response to the government funded school, it is but appropriate that either the divisions thereof or the school itself be closed and the students and staff of such schools be transferred to a neighbourhood school by resorting to Section 18(3) of the 2009 Act. Only after taking such decisions could the School Development Plan represent the correct position regarding the need of government aided schools in every locality across the State. Besides, it will ensure proper and meaningful utilization of public funds. In absence of such exercise, the end result would be that on account of existing nonperforming or under-performing or non-compliance schools, the School Development Plan would not reckon that locality for establishment of another school. In our view, even the State Government(s), by resorting to the provision of the 2009 Act, must take opportunity to re-organise its financial outflow at the micro level by weeding out the non-performing or under-performing or non-compliance schools receiving grantin- aid, so as to ensure that only such government funded schools, who fulfill the norms and standards, are allowed to continue, to achieve t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erests of the weaker sections (Article 46). Similarly, our understanding of the right "to practice any profession or occupation" [Article 19(1)(g)] is clarified when we read along with that right the obligation of the State to see that the health of the workers and the tender age of the children are not abused (Article 39). Thus, we need to interpret the fundamental rights in the light of the directive principles. The above principles are very relevant in this case because the very content of Article 21A comes from reading of Articles 41, 45 and 46 and, more particularly, from Article 45 (as it then stood before the Constitution (Eighty sixth Amendment) Act, 2002). It has been urged before us that Article 45, as it then stood, imposed obligation on the State to provide for free and compulsory education for all children until they complete the age of 14 years and that the said obligation cannot be shifted or passed on to an unaided school, as defined in Section 2(n)(iv) of the 2009 Act. To answer the said contention, one needs to appreciate the scope of Articles 21, 21A, 19(1)(g) and Articles 41, 45 and 46 of the Constitution. At the outset, it may be stated, that fundamental rights....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e restriction imposed in the interest of the general public in Article 19(6) of the Constitution? 10. Coming to the principle of reasonableness, it may be stated, that though subject-wise, Article 21A deals with access to education as against right to establish and administer educational institution in Article 19(1)(g), it is now not open to anyone to contend that the law relating to right to access education within Article 21A does not have to meet the requirement of Article 14 or Article 19 for its reasonableness. [See Khudiram Das v. State of West Bengal reported in (1975) 2 SCR 832] After the judgment of this Court in Maneka Gandhi v. Union of India [(1978) 1 SCC 248], the principle of reasonableness is applicable to Article 14 of the Constitution. As held by this Court in Glanrock Estate Private Limited v. State of Tamil Nadu [(2010) 10 SCC 96], Article 21 (right to life) remains the core of the Constitution around which Article 14, Article 19 and others revolve. In other words, all other fundamental rights in Part III would be dependent upon right to life in Article 21 as interpreted by this Court to include right to live with dignity, right to education, etc. At the end o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... not under consideration. Further, the content of Article 21A flows from Article 45 (as it then stood). The 2009 Act has been enacted to give effect to Article 21A. For the above reasons, since the Article 19(1)(g) right is not an absolute right as Article 30(1), the 2009 Act cannot be termed as unreasonable. To put an obligation on the unaided non-minority school to admit 25% children in class I under Section 12(1)(c) cannot be termed as an unreasonable restriction. Such a law cannot be said to transgress any constitutional limitation. The object of the 2009 Act is to remove the barriers faced by a child who seeks admission to class I and not to restrict the freedom under Article 19(1)(g). The next question that arises for determination is - whether Section 12(1)(c) of the 2009 Act impedes the right of the nonminority to establish and administer an unaided educational institution? At the outset, it may be noted that Article 19(6) is a saving and enabling provision in the Constitution as it empowers the Parliament to make a law imposing reasonable restriction on the Article 19(1)(g) right to establish and administer an educational institution while Article 21A empowers the Parliame....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ory right, which, however, will have to satisfy the test of reasonable restrictions [see Article 19(6)]. Thus, from the scheme of Article 21A and the 2009 Act, it is clear that the primary obligation is of the State to provide for free and compulsory education to children between the age of 6 to 14 years and, particularly, to children who are likely to be prevented from pursuing and completing the elementary education due to inability to afford fees or charges. Correspondingly, every citizen has a right to establish and administer educational institution under Article 19(1)(g) so long as the activity remains charitable. Such an activity undertaken by the private institutions supplements the primary obligation of the State. Thus, the State can regulate by law the activities of the private institutions by imposing reasonable restrictions under Article 19(6). The 2009 Act not only encompasses the aspects of right of children to free and compulsory education but to carry out the provisions of the 2009 Act, it also deals with the matters pertaining to establishment of school (s) as also grant of recognition (see section 18). Thus, after the commencement of the 2009 Act, the private mana....
X X X X Extracts X X X X
X X X X Extracts X X X X
....p in the neighbourhood and provide free and compulsory elementary education to them till its completion. The emphasis is on "free and compulsory education". Earmarking of seats for children belonging to a specified category who face financial barrier in the matter of accessing education satisfies the test of classification in Article 14. Further, Section 12(1)(c) provides for level playing field in the matter of right to education to children who are prevented from accessing education because they do not have the means or their parents do not have the means to pay for their fees. As stated above, education is an activity in which we have several participants. There are number of stakeholders including those who want to establish and administer educational institutions as these supplement the primary obligation of the State to provide for free and compulsory education to the specified category of children. Hence, Section 12(1)(c) also satisfies the test of reasonableness, apart from the test of classification in Article 14. 11. The last question which we have to answer under this head is - whether Section 12(1)(c) runs counter to the judgments of this Court in T.M.A. Pai Foundati....
X X X X Extracts X X X X
X X X X Extracts X X X X
....amdar were not concerned with interpretation of Article 21A and the 2009 Act. It is true that the above two judgments have held that all citizens have a right to establish and administer educational institutions under Article 19(1)(g), however, the question as to whether the provisions of the 2009 Act constituted a restriction on that right and if so whether that restriction was a reasonable restriction under Article 19(6) was not in issue. Moreover, the controversy in T.M.A. Pai Foundation arose in the light of the scheme framed in Unni Krishnan's case and the judgment in P.A. Inamdar was almost a sequel to the directions in Islamic Academy of Education v. State of Karnataka [(2003) 6 SCC 697] in which the entire focus was Institution centric and not child centric and that too in the context of higher education and professional education where the level of merit and excellence have to be given a different weightage than the one we have to give in the case of Universal Elementary Education for strengthening social fabric of democracy through provision of equal opportunities to all and for children of weaker section and disadvantaged group who seek admission not to higher education ....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., or in the case of professional colleges, by government agencies. 60. Education is taught at different levels, from primary to professional. It is, therefore, obvious that government regulations for al l levels or types o f educationa l institutions cannot be identica l; so also, the extent of control or regulation could be greater vis-a-vis aided institutions. 61. In the case of unaided private schools, maximum autonomy has to be with the management with regard to administration, including the right of appointment, disciplinary powers, admission of students and the fees to be charged. At the schoo l level , it is not possible to grant admissions on the basis o f merit . It is no secret that the examination results at all levels of unaided private schools, notwithstanding the stringent regulations of the governmental authorities, are far superior to the results of the government-maintained schools. There is no compulsion on students to attend private schools. The rush for admission is occasioned by the standards maintained in such schools, and recognition of the fact that State-run schools do not provide the same standards of education. The State says that it has no funds to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f thought as has developed through successive judicial pronouncements culminating in Pai Foundation is that looking at the concept of education, in the backdrop of the constitutional provisions, professiona l educationa l institutions constitute a class by themselves as distinguished from educationa l institutions imparting non-professiona l education. It is not necessary for us to go deep into this aspect of the issue posed before us inasmuch as Pai Foundation has clarified that merit and excellence assume specia l significance in the context o f professiona l studies . Though merit and excellence are not anathema to non-professional education, yet at that level and due to the nature of education which is more general, the need for merit and excellence therein is not of the degree as is called for in the context of professional education. 146. Non-minority unaided institutions can also be subjected to similar restrictions which are found reasonable and in the interest of the student community. Professiona l education should be made accessible on the criterion o f merit and on non exploitative terms to all eligible students on a uniform basis. Minorities or non-minorities, in ex....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and fortify these purposes, Part III has provided certain fundamental rights including Article 26 of the Constitution which guarantees the right of every religious denomination or a section thereof, to establish and maintain institutions for religious and charitable purposes; to manage its affairs in matters of religion; to acquire property and to administer it in accordance with law. Articles 29 and 30 confer certain educational and cultural rights as fundamental rights. 15. Article 29(1) confers on any section of the citizens a right to conserve its own language, script or culture by and through educational institutions and makes it obvious that a minority could conserve its language, script or culture and, therefore, the right to establish institutions of its choice is a necessary concomitant to the right to conserve its distinctive language, script or culture and that right is conferred on all minorities by Article 30(1). That right, however, is subject to the right conferred by Article 29(2). 16. Article 30(1) gives the minorities two rights: (a) to establish and (b) to administer educational institutions of their choice. The real import of Article 29(2) and Article 30(1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rticle 15(5) is an enabling provision and it is for the respective States either to enact a legislation or issue an executive instruction providing for reservation except in the case of minority educational institutions referred to in Article 30(1). The intention of the Parliament is that the minority educational institution referred to in Article 30(1) is a separate category of institutions which needs protection of Article 30(1) and viewed in that light we are of the view that unaided minority school(s) needs special protection under Article 30(1). Article 30(1) is not conditional as Article 19(1)(g). In a sense, it is absolute as the Constitution framers thought that it was the duty of the Government of the day to protect the minorities in the matter of preservation of culture, language and script via establishment of educational institutions for religious and charitable purposes [See: Article 26]. Reservations of 25% in such unaided minority schools result in changing the character of the schools if right to establish and administer such schools flows from the right to conserve the language, script or culture, which right is conferred on such unaided minority schools. Thus, the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Children to Free and Compulsory Education Act 2009 (35 of 2009) [in short, the Act], which was enacted following the insertion of Article 21A by the Constitution (Eighty-sixth Amendment) Act, 2002. Article 21A provides for free and compulsory education to all children of the age 6 to 14 years and also casts an obligation on the State to provide and ensure admission, attendance and completion of elementary education in such a manner that the State may by law determine. The Act is, therefore, enacted to provide for free and compulsory education to all children of the age 6 to 14 years and is anchored in the belief that the values of equality, social justice and democracy and the creation of just and humane society can be achieved only through a provision of inclusive elementary education to all the children. Provision of free and compulsory education of satisfactory quality to the children from disadvantaged groups and weaker sections, it was pointed out, is not merely the responsibility of the schools run or supported by the appropriate government, but also of schools which are not dependant on government funds. 2. Petitioners in all these cases, it may be mentioned, have wholehe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ight guaranteed under Article 21 of the Constitution and that dignity of individuals cannot be assured unless accompanied by right to education and that charging of capitation fee for admission to educational institutions would amount to denial of citizens' right to education and is violative of Article 14 of the Constitution. The ratio laid down in Mohini Jain was questioned in Unni Krishnan, J.P. and Others v. State of A.P. and Others [(1993) 1 SCC 645] contending that if the judgment in Mohini Jain was given effect to, many of the private educational institutions would have to be closed down. Mohini Jain was affirmed in Unni Krishnan to the extent of holding that the right to education flows from Article 21 of the Constitution and charging of capitation fee was illegal. The Court partly overruled Mohini Jain and held that the right to free education is available only to children until they complete the age of 14 years and after that obligation of the State to provide education would be subject to the limits of its economic capacity and development. Private unaided recognized/affiliated educational institutions running professional courses were held entitled to charge the fee hig....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ucation until they complete the age of 14 years. This right flows from Article 21 relating to personal liberty and its content, parameters have to be determined in the light of Article 41 which provides for right to work, to education and to public assistance in certain cases and Article 45 which provides for free and compulsory education to children up to the age of 14 years. The apex Court has observed that the obligations created by these Articles of the Constitution can be discharged by the State either by establishing institutions of its own or by aiding recognising and granting affiliation to educational institutions. On clause (3) of the proposed Article 21, the report stated as follows: "11. Clause (3) of the proposed Article 21 provides that the State shall not make any law for free and compulsory education under clause (2), in relation to the educational institutions not maintained by the State or not receiving aid out of State funds. However, strong apprehensions were voiced about clause (3) of the proposed new Article 21A. Many of the people in the written memoranda and also educational experts in the oral evidence have expressed displeasure over keeping the private ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....not be there. The Committee recommends that clause (3) of the proposed Article 21(A) may be deleted. Smt. Hedwig Michael Rego, M.P. a Member of the Committee gave a Minute of Dissent. It is appended to the report. 15.16. The Committee recommends that the Bill be passed subject to the recommendations made in the preceding paragraphs. MINUTES OF DISSENT I vehemently oppose the State wanting to introduce free and compulsory education in private, unaided schools. Clause 21A (3) must be inserted as I do not wish the State to make laws regarding free and compulsory education in relation to educational institutions not maintained by the State or not receiving aid out of State funds. A Committee of State Education Ministers have already considered the issue in view of the Unni Krishnan case, and found it not feasible to bring unaided private educational institutions within the purview of the Bill. Hence, I state once again that the proposed clause "21A(3") must be inserted in the Bill. Yours sincerely, Sd/' (SMT. HEDWIG MICHAEL REGO)" (emphasis supplied) 9. Report referred to above was adopted by the Parliamentary Standing Committee ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ferred to hereinabove. It would neither be advisable nor desirable that the unaided educational institutions are kept outside the proposed Article altogether while the sole primary obligation to provide education is upon the State, the educational institutions, whether aided or unaided supplement this effort." Para 6.6.2 of the report reads as under: "6.6.2. The unaided institutions should be made aware that recognition, affiliation or permission to send their children to appear for the Government/Board examination also casts a corresponding social obligation upon them towards the society. The recognition/affiliation/permission aforesaid is meant to enable them to supplement the effort of the State and not to enable them to make money. Since they exist and function effectively because of such recognition/affiliation/permission granted by public authorities, they must and are bound to serve the public interest. For this reason, the unaided educational institutions must be made to impart free education to 50% of the students admitted to their institutions. This principle has already been applied to medical, engineering and other colleges imparting professional education and the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s scrutinized by the Parliamentary Standing Committee on Human Resource Development and the subject was also dealt with in its 165th Report by the Law Commission of India. 3. After taking into consideration the report of the Law Commission of India and the recommendations of the Standing Committee of Parliament, the proposed amendments in Part III, Part IV and Part IVA of the Constitution are being made which are as follows: (a) to provide for free and compulsory education to children in the age group of 6 to 14 years and for this purpose, a legislation would be introduced in parliament after the Constitution (Ninety-third Amendment) Bill, 2001 is enacted; (b) to provide in article 45 of the Constitution that the State shall endeavour to provide early childhood care and education to children below the age of six years; and (c) to amend article 51A of the Constitution with a view to providing that it shall be the obligation of the parents to provide opportunities for education to their children. 4. The Bill seeks to achieve the above objects." 15. The above Bill was passed and received the assent of the President on 12.12.2002 and was published in the Gazette of In....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Unni Krishnan had created mayhem and raised thorny issues on which the Law Commission had built up its edifice, suo moto. The Law Commission had acknowledged the fact that but for the ratio in Unni Kirshnan the unaided private educational institutions would have no obligation to impart free and compulsory education to the children admitted in their institutions. Law Commission was also of the view that the ratio in Unni Krishnan had legitimized the State or the affiliating Board to require unaided educational institutions to provide free education, as a condition for affiliation or for permitting the students to appear for the Government/Board examination. 18. Unni Krishnan was questioned contending that it had imposed unreasonable restrictions under Article 19(6) of the Constitution on the administration of the private educational institutions and that the rights of minority communities guaranteed under Article 29 and Article 30 were eroded. Unni Krishnan scheme which insisted that private unaided educational institutions should provide for "free seats" as a condition for recognition or affiliation was also questioned contending that the same would amount to nationalisation of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the authority granting recognition or affiliation can certainly lay down conditions for the grant of recognition or affiliation but those conditions must pertain broadly to academic and educational matters and welfare of students and teachers. The Court held that the right to establish an educational institution can be regulated but such regulatory measures must be in general to ensure proper academic standards, atmosphere and infrastructure and prevention of maladministration. The necessity of starting more quality private unaided educational institutions in the interest of general public was also emphasised by the Court by ensuring autonomy and nonregulation in the school administration, admission of students and fee to be charged. Pai Foundation rejected the view that if a private school is allowed to charge fee commensurate with the fee affordable, the degrees would be purchasable as unfounded since the standards of education can be and are controllable through recognition, affiliation and common final examination. Casting burden on other students to pay for the education of others was also disapproved by Pai Foundation holding that there should be no cross-subsidy. 23. Pai ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Pai Foundation, after the introduction of the above mentioned articles, was interpreted by various Courts, State Governments, educational institutions in different perspectives leading to the enactment of various statutes and regulations as well, contrary to each other. A Bench of five Judges was, therefore, constituted to clarify certain doubts generated out of the judgment in Pai Foundation and its application. Rights of unaided minority and non-minority institutions and restrictions sought to be imposed by the State upon them were the main issues before the Court and not with regard to the rights and obligations of private aided institutions run by minorities and non minorities. The five Judges' Bench rendered its judgment on 14.8.2003 titled Islamic Academy of Education and another v. State of Karnataka and others [(2003) 6 SCC 697]. Unfortunately, Islamic Academy created more problems and confusion than solutions and, in order to steer clear from that predicament, a seven Judges Bench was constituted and the following specific questions were referred for its determination: "(1) To what extent the State can regulate the admissions made by unaided (minority or nonminority) e....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d or aspires for recognition, the State may grant aid or recognition accompanied by certain restrictions or conditions which must be followed as essential to the grant of such aid or recognition. Inamdar , as I have already indicated, was mainly concerned with the question whether the State can appropriate the quota o f unaided educationa l institutions both minority and non-minority . Explaining Pai Foundation, the Court in Inamdar held as follows: "119. A minority educational institution may choose not to take any aid from the State and may also not seek any recognition or affiliation . It may be imparting such instructions and may have students learning such knowledge that do not stand in need of any recognition. Such institutions would be those where instructions are imparted for the sake of instructions and learning is only for the sake of learning and acquiring knowledge. Obviously, such institutions would fall in the category of those who would exercise their right under the protection and privilege conferred by Article 30(1) "to their hearts' content" unhampered by any restrictions excepting those which are in nationa l interest based on considerations such as public....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... by framing the regulation the essential character of the institution being a minority educational institution, is not taken away. (Para 122, Pai Foundation) (iii) Minority educational institutions receiving State aid 123. Conditions which can normally be permitted to be imposed on the educational institutions receiving the grant must be related to the proper utilisation of the grant and fulfilment of the objectives of the grant without diluting the minority status of the educational institution, as held in Pai Foundation (see para 143 thereof). As aided institutions are not before us and we are not called upon to deal with their cases, we leave the discussion at that only. 124. So far as appropriation of quota by the State and enforcement of its reservation policy is concerned, we do not see much of a difference between non-minority and minority unaided educational institutions. We find great force in the submission made on behal f o f the petitioners that the States have no power to insist on seat-sharing in unaided private professiona l educationa l institutions by fixing a quota o f seats between the management and the State . The State cannot insist on private educati....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ulsion, but on their own volition. Inamdar reiterated that no where in Pai Foundation, either in the majority or in the minority opinion, have they found any justification for imposing seat sharing quota by the State on unaided private professional educational institutions and reservation policy of the State or State quota seats or management seats. Further, it was pointed that the fixation of percentage of quota is to be read and understood as possible consensual arrangements which can be reached between unaided private professional institutions and the State. State regulations, it was pointed out, should be minimal and only with a view to maintain fairness and transparency in admission procedure and to check exploitation of the students by charging exorbitant money or capitation fees. Inamdar , disapproved the scheme evolved in Islamic Academy to the extent it allowed States to fix quota for seat sharing between management and the States on the basis o f loca l needs o f each State , in the unaided private educationa l institutions o f both minority and non-minority categories . Inamdar held that to admit students being one o f the components o f right to establish and administer....
X X X X Extracts X X X X
X X X X Extracts X X X X
....(g) or Article 30(1) of the Constitution. 32. Comparing the judgments in Inamdar and Pai Foundation, what emerges is that so far as unaided educational institutions are concerned, whether they are established and administered by minority or non-minority communities, they have no legal obligation in the matter of seat sharing and upto the level of under-graduate education they enjoy total freedom. State also cannot compel them to give up a share of the available seats to the candidates chosen by the State. Such an appropriation of seats, it was held, cannot be held to be a regulatory measure in the interest of minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution since they have unfettered fundamental right and total freedom to run those institutions subject to the law relating to taxation, sanitation, social welfare, economic legislation, public order and morality. 33. Pai Foundation was examining the correctness of the ratio in Unni Krishnan, which I have already pointed out, was the basis for the insertion of Article 21A and the deletion of clause (3) of the proposed Article 21A. Inamdar also noticed....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ht which must get priority over rights under Article 19(1)(g) and Article 30(1), because unlike other rights it does not operate merely as a limitation on the powers of the state but it requires affirmative state action to protect and fulfil the rights guaranteed to children of the age of 6 to 14 years for free and compulsory education. Reference was also made to the judgments of this Court in Indian Medical Association v. Union of India and others [(2011) 7 SCC 179] (in short Medical Association case), Ahmedabad St. Xavier's College Society and Another v. State of Gujarat and Another [(1974) 1 SCC 717], Rev. Sidhajbhai Sabhai and Others v. State of Bombay and Another [(1963) 3 SCR 837] and In re. Kerala Education Bill (supra). 37. Learned Additional Solicitor General in her written as well as oral submissions stated that Article 21A must be considered as a stand alone provision and not subjected to Article 19(1)(g) and Article 30(1) of the Constitution. Article 19(1)(g) and Article 30(1), it was submitted, dealt with the subject of right to carry on occupation of establishing and administering educational institutions, while Article 21A deals exclusively with a child's right to....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... free and compulsory education to children upto the age of 6 to 14 years, which would be evident from the plain reading of Article 21A read with Article 45. Learned senior counsel submitted that the words "state shall provide" are express enough to reveal the intention of the Parliament. Further, it was stated that the constitutional provision never intended to cast responsibility on the private educational institutions along with the State, if that be so like Article 15(5), it would have been specifically provided so in Article 21A. Article 21A or Article 45 does not even remotely indicate any idea of compelling the unaided educational institutions to admit children from the neighbourhood against their wish and in violation of the rights guaranteed under the Constitution. Learned senior counsel submitted that since no constitutional obligation is cast on the private educational institutions under Article 21A, the State cannot through a legislation transfer its constitutional obligation on the private educational institutions. Article 21A, it was contended, is not subject to any limitation or qualification so as to offload the responsibility of the State on the private educational ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fact, completely take away the rights guaranteed to minority communities, though what was permitted by this Court was only "sprinkling of outsiders" that is members of all the communities. Counsel submitted that the mere fact that some of the institutions established and administered by the minority communities have been given grant or aid, the State cannot take away the rights guaranteed to them under Article 30(1) of the Constitution of India. Learned counsel submitted that Article 21A read with Article 30(1) also confers a right on a child belonging to minority community for free and compulsory education in an educational institution established and administered by the minority community for their own children and such a constitutionally guaranteed right cannot be taken away or abridged by law. PART II Article 21A and RTE Act 42. Right to education, so far as children of the age 6 to 14 years are concerned, has been elevated to the status of fundamental right under Article 21A and a corresponding obligation has been cast on the State, but through Sections 12(1)(b) and 12(1)(c) of the Act the constitutional obligation of the State is sought to be passed on to private edu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Principles of the State Policy in this connection is useful. Article 47 provides for duty of the State to improve public health. Principles enshrined in Articles 47 and 48 are not pious declarations but for guidance and governance of the State policy in view of Article 37 and it is the duty of the State to apply them in various fact situations. 46. Supreme Court has always recognized Right to health as an integral part of right to life under Article 21 of the Constitution. In Consumer Education & Research Centre and Others v. Union of India and others [(1995) 3 SCC 42], this Court held that the right to life meant a right to a meaningful life, which is not possible without having right to healthcare. This Court while dealing with the right to healthcare of persons working in the asbestos industry read the provisions of Articles 39, 41 and 43 into Article 21. In Paschim Banga Khet Majdoor Samity and Others v. State of West Bengal and Another [(1996) 4 SCC 37], this Court not only declared Right to health as a Fundamental Right but enforced that right by asking the State to pay compensation for the loss suffered and also to formulate a blue-print for primary health care with par....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al Committee and Others [(1989) 4 SCC 155], this Court negated the claim of citizens to occupy a particular place on the pavement to conduct a trade, holding the same cannot be construed as a fundamental right. Socioeconomic compulsions in several cases did not persuade this Court to provide reliefs in the absence of any constitutional or statutory right. A different note was however struck in Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan and Others [(1997) 11 SCC 121] in the context of eviction of encroachers from the city of Ahmedabad. This Court held though Articles 38, 39 and 46 mandate the State, as its economic policy, to provide socio-economic justice, no person has a right to encroach and erect structures otherwise on foot-paths, pavements or public streets. The Court has however opined that the State has the constitutional duty to provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter over their heads to make the right to life meaningful. 48. Right to work does not oblige the State to provide work for livelihood which has also been not recognized as a fundamental right. Mahatma Gan....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ity of fixing the health care budget and deciding priorities lay with political organization and medical authorities, and that the court would be slow to interfere with such decisions if they were rational and "taken in good faith". 50. In Government of the Republic of South Africa and Others v. Grootboom and others [2001 (1) SA 46 (CC)] was a case where the applicants living under appalling conditions in an informal settlement, had moved into private land from which they were forcibly evicted. Camping on a nearby sports field, they applied for an order requiring the government to provide them with basic shelter. The Constitutional Court did not recognize a directly enforceable claim to housing on the part of the litigants, but ruled that the State is obliged to implement a reasonable policy for those who are destitute. The Court, however, limited its role to that of policing the policy making process rather than recognizing an enforceable individual right to shelter, or defining a minimum core of the right to be given absolute priority. 51. Another notable case of socio-economic right dealt with by the South African Court is Minister of Health and others v. Treatment Action ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dical treatment [Section 27(3)]; the rights of prisoners to adequate nutrition and medical treatment [Section 35(2)] and rights of Children (defined as those under 18 years) to basic nutrition, shelter, basic health care and social services. 55. Social economic rights have also been recognized by the constitutional courts of various other countries as well. In Brown v. Board of Education [347 U.S. 483], the U.S. Constitutional Court condemned the policy of segregation of blacks in the American educational system. The Court held that the private schools for black and white children are inherently unequal and deprived children of equal rights. 56. In a Venenzuelan case Cruz del Valle Balle Bermudez v. Ministry of Health and Social Action - Case No.15.789 Decision No.916 (1999); the Court considered whether those with HIV/AIDS had the right to receive the necessary medicines without charge and identifying a positive duty of prevention at the core of the right to health, it ordered the Ministry to conduct an effective study into the minimum needs of those with HIV/AIDS to be presented for consideration in the Government's next budget. Reference may also be made a judgment of the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f they are violative of fundamental rights. However, in I.R. Coelho (Dead) by LRs v. State of Tamil Nadu and Others [(2007) 2 SCC 1], it was held that laws included in the Ninth Schedule can be challenged, if it violates the basic structure of the Constitution which refer to Articles 14, 19, 21 etc. 61. Article 31C was inserted by the Constitution (Twenty fifth Amendment) Act, 1971 which gave primacy to Article 39(b) and (c) over fundamental rights contained under Article 14 and 19. Article 31C itself was amended by the Constitution (Forty-second Amendment) Act, 1976 and brought in all the provisions in Part-IV, within Article 31C for protecting laws from challenge under article 14 and 19 of the Constitution. 62. I have referred to Articles 31A to 31C only to point out how the laws giving effect to the policy of the State towards securing all or any of the principles laid down in Part-IV stood saved from the challenge on the ground of violation or infraction of the fundamental rights contained in Articles 14 and 19. The object and purpose of those constitutional provisions is to remove the obstacles which stood in the way of enforcing socio-economic rights incorporated in Par....
X X X X Extracts X X X X
X X X X Extracts X X X X
....8, The Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, General Insurance Business (Nationalization) Act, 1972 and so on. Sub-clause 6(ii) of Article 19 exempts the State, on the conditions of reasonableness, by laying down that carrying out any trade, business, industry or services by the State Government would not be questionable on the ground that it is an infringement on the right guaranteed under Article 19(1)(g). 66. I have referred to various provisions under subclauses (i) and (ii) of Article 19(6) to impress upon the fact that it is possible to amend the said Article so that socioeconomic rights could be realized by carving out necessary constitutional limitations abrogating or abridging the right guaranteed under Article 19(1)(g). 67. Constitutional amendments have also been made to Articles 15 and 16 so as to achieve socio-economic justice. Articles 15 and 16 give power to the State to make positive discrimination in favour of the disadvantaged and particularly, persons belonging to Scheduled Castes and Scheduled Tribes. Socio-economic empowerment secures them dignity of person and equality of status, the object is to achieve socio-economic e....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of professional educational institutions were limited in comparison to those in private unaided institutions. Article 46 states that the State shall promote, with special care, the educational and economic interests of the weaker sections of the people, and, in particular of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice. Access to education was also found to be an important factor and in order to ensure advancement of persons belonging to Scheduled Castes, Scheduled Tribes, socially and economically backward classes, it was proposed to introduce Clause (5) to Article 15 to promote educational advancement of socially and educationally backward classes of citizens i.e. OBCs, Scheduled Castes and Scheduled Tribes and the weaker sections of the society by securing admission in unaided educational institutions and other minority educational institutions referred to in Clause (1) of Article 30 of the Constitution. 70. The Parliament has, therefore, removed the obstacles created by the law as ruled by the Court in Pai Foundation and Inamdar so as to carry out the obligation under the Directive Principles of the State Policy laid down under Art....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t the fact that the State in order to achieve socio-economic rights, can remove obstacles by limiting the fundamental rights through constitutional amendments. 72. Applicability of Article 15(5), with regard to private unaided non-minority professional institutions, came up for consideration in Medical Association case. A two judges Bench of this Court has examined the constitutional validity of Delhi Act 80 of 2007 and the notification dated 14.8.2008 issued by the Government of NCT, Delhi permitting the Army College of Medical Sciences to allocate 100% seats to the wards of army personnel. The Court also examined the question whether Article 15(5) has violated the basic structure of the Constitution. The Court proceeded on the basis that Army Medical College is a private non-minority, unaided professional institution. Facts indicate that the College was established on a land extending to approximately 25 acres, leased out by the Ministry of Defence, Government of India for a period of 30 years extendable to 99 years. Ministry of Defence also offered various facilities like providing clinical training at Army Hospital, NCT, Delhi and also access to the general hospitality. The ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... assessment o f al l the rights put together , with a few differences that would still have operational significance; or (ii) that in all respects the two classes of educational institutions are more or less the same, with the differences being minor and not leading to any operational significance ." (emphasis supplied) Medical Association case concluded that the expression "much of a difference" could be understood only in the way they have stated in paragraph 81(i) which, with due respect, is virtually re-writing paragraph 124 of Inamdar, a seven Judges' Judgment which is impermissible. Final conclusion reached by the learned judges in paragraph 123 for inclusion of Clause (5) to Article 15 reads as follows: "123. Clause (5) of Article 15 is an enabling provision and inserted by the Constitution (Ninety third Amendment) Act, 2005 by use of powers of amendment in Article 368. The Constitution (Ninety-third Amendment) Act, 2005 was in response to this Court's explanation, in P.A. Inamdar, of the ratio in T.M.A. Pai, that imposition of reservations on non-minority unaided educational institutions, covered by sub-clause (g) of clause (1) of Article 19, to be unreasonable ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tute weaker sections or weaker parts of the society. 77. In Indra Sawhney v. Union of India and Others [(1992) Supp. 3 SCC 212], this Court held that, as the law stood then, there could be no reservation in promotion. It was held that reservation of appointments or posts under Article 16(4) is confined to initial appointments only. To set right the law and to advance social justice by giving promotions to Scheduled Castes and Scheduled Tribes Clause (4A) was added to Article 16 by the Constitution (Seventyseventh Amendment) Act, 1995. Consequently, the hurdle or obstacle which stood in the way was removed by the Constitutional amendment. 78. The scope of the above provision came up for consideration in Jagdish Lal and Others v. State of Haryana and Others [(1997) 6 SCC 538], where this Court held that the principle of seniority according to length of continuous service on a post or service will apply and that alone will have to be looked into for the purpose of seniority even though they got promotion ignoring the claim of seniors. It was said that reserved candidates who got promotion ignoring the claim of services in general category will be seniors and the same cannot affe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse. 81. I have referred extensively to the constitutional amendments effected to Articles 31A to 31C, Articles 15, 16 and 19 to show that whenever the Parliament wanted to remove obstacles so as to make affirmative action to achieve socio-economic justice constitutionally valid, the same has been done by carrying out necessary amendments in the Constitution, not through legislations, lest they may make an inroad into the fundamental rights guaranteed to the citizens. Rights guaranteed to the unaided non-minority and minority educational institutions under Article 19(1)(g) and Article 30(1) as explained in Pai Foundation and reiterated in Inamdar have now been limited, restricted and curtailed so as to impose positive obligation on them under Section 12(1) (c) of the Act and under Article 21A of the Constitution, which is permissible only through constitutional amendment. 82. Constitutional principles laid down by Pai Foundation and I....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dominion on the Constitution and, declare that it shall not be changed except through constitutionally permissible mode. When courts declare legislative acts inconsistent with constitutiona l provisions, the court is giving effect to the wil l o f the people not due to any judicia l supremacy , a principle which squarely applies to the case on hand. 84. In S.P. Gupta v. President of India and Others [1981 SCC Supp. (1) 87] [para 195], Justice Fazal Ali pointed out as follows: " The position so far as our country is concerned is similar to that of America and if any error of interpretation of a constitutional provision is committed by the Supreme Court or any interpretation which is considered to be wrong by the Government can be rectified only by a constitutional amendment which is a very complicated, complex, delicate and difficult procedure requiring not merely a simple majority but two-third majority of the Members present and voting. Apart from the aforesaid majority, in most cases the amendment has to be ratified by a majority of the States. In these circumstances, therefore, this Court which lays down the law of the land under Article 141 must be extremely careful and c....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... children's rights. Social inclusiveness is stated to be the motto of the Act which was enacted to accomplish the State's obligation to provide free and compulsory education to children of the age 6 to 14 years, in that process, compulsorily co-opting, private educational institutions as well. A shift in State's functions, to non-state actors in the field of health care, education, social services etc. has been keenly felt due to liberalization of economy and privatization of state functions. 90. The Universal Declaration of Human Rights, 1948 (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR), UN Convention on the Rights of the Child (UNCRC), 1989 throw considerable light on the duties and responsibilities of State as well as non-state actors for the progressive realization of children rights. Article 6(1) of ICCPR states: "Every human being has the inherent right to life ... No one shall be arbitrarily deprived of this right", meaning thereby that the arbitrary deprivation of a person's life will be a violation of international human rights norm whether it is by th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....urpose which reads as follow:- 1. States Parties agree that the education of the child shall be directed to: (a) The development of the child's personality, talents and mental and physical abilities to their fullest potential; (b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations; (c) The development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own; (d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin; (e) The development of respect for the natural environment. 2. No part of the present article or article 28 shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observanc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....'s rights and has also got a duty to regulate the private institutions that care for children, to protect children from violence or abuse, to protect children from economic exploitation, hazardous work and to ensure human treatment of children. Non-state actors exercising the state functions like establishing and running private educationa l institutions are also expected to respect and protect the rights o f the child , but they are , not expected to surrender their rights constitutionally guaranteed . 96. Article 21A requires non-state actors to achieve the socio-economic rights of children in the sense that they shall not destroy or impair those rights and also owe a duty of care. The State, however, cannot free itself from obligations under Article 21A by offloading or outsourcing its obligation to private State actors like unaided private educational institutions or to coerce them to act on the State's dictate. Private educational institutions have to empower the children, through developing their skills, learning and other capacities, human dignity, self-esteem and self-confidence and to respect their constitutional rights. 97. I have in the earlier part of the judgment....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... as to compel them to give up a share of the available seats to the candidates chosen by the State, as if it was filling the seats available to be filled up at its discretion in such private institutions, would amount to nationalization of seats. Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions, it was held, are acts constituting serious encroachment on the right and autonomy of private unaided professional educational institutions and such appropriation of seats cannot be held to be a regulatory measure in the interest of minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution, so far as the unaided minority institutions are concerned. PART IV 101. Article 21A has used the expression "State shall provide" not "provide for" hence the constitutional obligation to provide education is on the State and not on non-state actors, the expression is clear and unambiguous and to interpret that expression to mean that constitutional obligation or responsibility is on private unaided educational institutions also, in my view....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... since they have no constitutional obligation to provide free and compulsory education under Article 21A of the Constitution. Needless to say that if children are voluntarily admitted in a private unaided educational institution, children can claim their right against the State, so also the institution. Article 51A(k) of the Constitution states that it shall be the duty of every citizen of India, who is a parent or guardian, to provide opportunities for education to his child. Parents have no constitutional obligation under Article 21A of the Constitution to provide free and compulsory education to their children, but only a constitutional duty, then one fails to see how that obligation can be offloaded to unaided private educational institutions against their wish, by law, when they have neither a duty under the Directive Principles of State policy nor a constitutional obligation under Article 21A, to those 25% children, especially when their parents have no constitutional obligation. 104. In Avinash Mehrotra v. Union of India & Others [{2009} 6 SCC 398], this Court held that Article 21A imposes a duty on the State, while Article 51A(k) places burden on the parents to provide f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sponsibility for free and compulsory education - (1) For the purposes of this Act, a school, - (a) specified in sub-clause(i) of clause (n) of section 2 shall provide free and compulsory elementary education to all children admitted therein ; (b) specified in sub-clause(ii) of clause (n) of section 2 shall provide free and compulsory elementary education to such proportion of children admitted therein as its annual recurring aid or grants so received bears to its annual recurring expenses, subject to a minimum of twenty-five per cent.; (c) specified in sub-clauses (iii) and (iv) of clause (n) of section 2 shall admit in class I, to the extent of at least twenty-five per cent of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion: Provided further that where a school specified in clause (n) of section 2 imparts pre-school education, the provisions of clauses (a) to (c) shall apply for admission to such pre-school education. (2) The school specified in sub-clause (iv) of clause (n) of section 2 providing free and compul....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gth of those children falling under Sections 2(d) and 2(e), and also in the preschool, if there is one. State also has undertaken reimbursement of the fees of those children to the extent of perchild expenditure incurred by the State. 109. Right of a citizen to establish and run an educational institution investing his own capital is recognized as a fundamental right under Article 19(1)(g) and the right of the State to impose reasonable restrictions under Article 19(6) is also conceded. Citizens of this country have no constitutional obligation to start an educational institution and the question is after having started private schools, do they owe a constitutional obligation for seat sharing with the State on a fee structure determined by the State. Pai Foundation and Inamdar took the view that the State cannot regulate or control admission in unaided educational institutions so as to compel them to give up a share of available seats which according to the court would amount to nationalization of seats and such an appropriation of seats would constitute serious encroachment on the right and autonomy of the unaided educational institutions. Both Pai Foundation and Inamdar are un....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nder Article 19(1)(g) and Article 30(1) of the Constitution. Legislature cannot under the guise of interest of general public "arbitrarily cast burden or responsibility on private citizens running a private school, totally unaided". Section 12(1)(c) was enacted not only to offload or outsource the constitutional obligation of the State to the private unaided educational institutions, but also to burden them with duties which they do not constitutionally owe to children included in Section 2(d) or (e) of the Act or to their parents. 112. Pai Foundation, in paragraph 57 of the judgment has stated that in as much as the occupation of education is, in a sense, regarded as charitable, the Government can provide regulations that will ensure excellence in education, while forbidding the charging of capitation fee and profiteering by the institution. Further, it was also pointed out that in the establishment of an educational institution, the object should not be to make profit, inasmuch as education is essentially charitable in nature. However, there can be a reasonable revenue surplus, which may be generated by the educational institutions for the purpose of development of education a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ished their own reputation and goodwill, a quantifiable asset. Nobody can be allowed to rob that without their permission, not even the State. Section 12(1)(c) is not a restriction which falls under Article 19(6) but cast a burden on private unaided educational institutions to admit and teach children at the state dictate, on a fee structure determined by the State which, in my view, would abridge and destroy the freedom guaranteed to them under Article 19(1)(g) of the Constitution. 115. Parliament can enact a social legislation to give effect to the Directive Principles of the State Policy, but so far as the present case is concerned , neither the Directive Principles o f the State Policy nor Article 21A cast any duty or obligation on the unaided private educationa l institutions to provide free and compulsory education to children o f the age o f 6 to 14 . Section 12(1)(c ) has , therefore , no foundation either on the Directive Principles o f the State Policy or Article 21A o f the Constitution, so as to rope in unaided educational institutions. Directive Principles of the State Policy as well as Article 21A cast the constitutional obligation on the State and State alone. Sta....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ift the veil of the form and appearance to discover the true character and nature of the legislation and if it has the effect of bypassing or ignoring the constitutional principles laid down by the Constitutional Courts and violate fundamental rights, the same has to be nullified. 119. Pai Foundation and Inamdar have not laid down any new constitutional principle, but only declared what the law is. Constitutional principles laid by courts get assimilated in Articles 19(1)(g), 29(2) and 30(1) and can be undone not by legislation, but only by constitutional amendments. The object to be achieved by the legislation may be laudable, but if it is secured by a method which offends fundamental rights and constitutional principles, the law must be struck down as unconstitutional. The constitutional provision like Article 19(1)(g) is a check on the exercise of legislative power and it is the duty of the constitutional court to protect the constitutional rights of the citizens against any encroachment, as it is often said, "smaller inroad may lead to larger inroad and ultimately resulting into nationalization or even total prohibition." Section 12(1)(c), if upheld would resurrect Unni Kris....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the annual admission. Minority aided educational institutions, it was held, shall make available at least 50% of the annual admission to the members of the communities other than minority community. The Court also held by admitting a member of a non minority into a minority institution, it does not shed its character and cease to be a minority institution and such "sprinkling of outsiders" would enable the distinct language, script and culture of a minority to be propagated amongst non members of a particular community and would indeed better serve the object of serving the language, religion and culture of that minority. I may also add that Section 12(1)(b) equally safeguards the rights of the members of religious and linguistic minority communities. Section 2(e) deals with the 'child belonging to weaker section' of the minority communities, religious or linguistic, who would also get the benefit of Section 12(1)(b) and, therefore, the contention that Section 12(1)(b), as such, would stand against the interest of the religious and linguistic minority communities is unfounded. 122. Applying the principle laid down in Pai Foundation, Inamdar, St. Stephen and in Re. Kerala Educa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ard to Section 16, it was contended that the prohibition against holding back any student in any class or expelling any student regardless of how grave the provocation may be, imposes unreasonable and arbitrary restriction which would completely destroy the unique educational system followed by some of the unaided educational institutions. 125. Shri Chander Uday Singh, senior counsel appearing in Writ Petition (Civil) No. 83 of 2011, submitted that they are following the International Baccalaureate system of education; the syllabus, curriculum, method of instructions are totally different from other schools. There are no day scholars, and all the students have to stay in the Boarding and the school fees is also high. Most of the students studying in the school are not from the neighbourhood but from all over the country and abroad. School has its own rules and regulations. Prohibition of holding back and expulsion of students in an unaided private educational institution depends upon the academic and disciplinary procedure laid down by the school and its parent body. Counsel, referring to Section 17 of the Act, submitted that the prohibition of physical punishment and mental har....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he provisions of the Act, especially by the aided minority community. Contention was raised that Sections 21 and 22 of the Act, read with Rule 3, cast an obligation on those schools to constitute a School Management Committee consisting of elected representatives of the local authority which amounts to taking away the rights guaranteed to the aided minority schools, under Article 30(1) of the Constitution. Learned Additional Solicitor General has made available a copy of a Bill, proposing amendment to Section 21, adding a provision stating that the School Management Committee constituted under sub-section (1) of Section 21 in respect of a school established and administered by minority whether based on religion or language, shall perform advisory functions only. The apprehension that the committee constituted under Section 21(1) would replace the minority educational institution is, therefore, unfounded. [Ref. F.No.1-22009-E.E-4 of Government of India (Annexure A-3)]. 130. Petitioners have also raised objections against the restrictions imposed in following any screening procedure before admitting children to their schools under Sections 13 or 14 of the Act, which according t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion for the children who are found to be deficient in their studies, the idea is that failing a child is an unjust mortification of the child personality, too young to face the failure in life in his or her early stages of education. Duty is cast on everyone to support the child and the child's failure is often not due the child's fault, but several other factors. No legal infirmity is found in that provision, hence the challenge against Section 16 is rejected. 133. Petitioners have not raised any objection with regard to Section 17, in my view, rightly. Sections 18 and 19 insist that no school shall be established without obtaining certificate of recognition under the Act and that the norms and standards specified in the schedule be fulfilled, if not already fulfilled, within a stipulated time. There is nothing objectionable in those provisions warranting our interference. Section 23, in my view, would not take away the freedom of aided minority educational institutions for the reasons already stated by us. No infirmity is also found with regard to Sections 24 to 28 of the Act since the object and purpose of those provisions are to provide education of satisfactory quality so ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hildren from the disadvantaged groups and weaker sections who drop out of the schools before completing the elementary education, if promotion to higher class is subject to screening. Past experience shows that many of such children have dropped out of the schools and are being exploited physically and mentally. Universal Elementary Education eluded those children due to various reasons and it is in order to curb all those maladies that the Act has provided for free and compulsory education. I, therefore, find no merit in the challenge against those provisions which are enacted to achieve the goal of universal elementary education for strengthening the social fabric of the society. 137. Counsel appearing for some of the aided minority institutions raised a doubt as to whether the Act has got any impact on the Freedom of Religion and Conscience guaranteed under Article 25 insofar as it applies to institutions run by a religious denomination. It was clarified by the Union of India that the Act would apply to institutions run by religious denominations in case the institution predominantly offers primary education either exclusively or in addition to religious instruction. It was p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rents, schools and teachers in providing free and compulsory education, a system for protection of the right of children and a decentralized grievance mechanism has been provided by the Legislature. Obligation has also been cast on the State and the local authority to establish neighbourhood schools within a period of three years from the commencement of the Act and the Central Government and the State Governments have concurrent responsibilities for providing funds for carrying out all the provisions of the Act and the duties and responsibilities cast on the local authorities as well. A provision has also been made in the Act for pre-school education for children above the age of three years. The purpose is to prepare them for elementary education and to provide early childhood care and education for all children until they complete the age of six years and the appropriate government has to take necessary steps for providing free pre-school education for such children. Further, the Act also cast a duty on every parent or guardian to admit or cause to be admitted his or her child or ward, as the case may be, for an elementary education in the neighbourhood school, which is in confo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r and whenever these schools are aided, the school fee is regulated and is generally equal to the fee prevailing in the government schools. The recruitment of teaches by these schools is also subject to the Government regulation like inclusion of a representative of the Government in the selection committee, or the appointment being subject to the approval of the Government. 141. Currently, all taxes in India are subject to the education cess, which is 3% of the total tax payable. With effect from assessment year 2009-10, Secondary and Higher Secondary Education Cess of 1% is applicable on the subtotal of taxable income. The proceeds of the cess are directed to a separate non lapsable fund called Prarambhik Shiksha Kosh (PSK), setup by Government of India, to exclusively cater to the elementary education in India. This fund is under the control of the Ministry of Human Resource and Development (MoHRD) and is typically utilized for its flagship programmes - Sarva Sikksha Abhiyaan (SSA) and the Mid-day Meal Scheme (MDMS). 142. The statistics would indicate that out of the 12,50,775 schools imparting elementary education in the country in 2007-08, 80.2% were all types of governm....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he study of definite courses. The Book was written after evaluating the experiences of various countries, which have followed free and compulsory education for children for several years. Prohibition of holding back in a class may, according to the author, result that bright pupils are robbed of incentive or opportunity to study and the dull ones are encouraged to believe that success, in the form of grades, promotion etc., will come to them automatically. The author also questioned that since the State began to control education, its evident tendency has been more and more to act in such a manner so as to promote repression and hindrance of education, rather than the true development of the individual. Its tendency has been for compulsion, for enforced equality at the lowest level, for the watering down of the subject and even the abandonment of all formal teaching, for the inculcation of obedience to the State and to the "group," rather than the development of self-independence, for the deprecation of intellectual subjects. 146. I am of the view that the opinions expressed by the academicians like Rothbard command respect and cannot be brushed aside as such because, much more ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....can be enforced against the schools defined under Section 2(n) of the Act, except unaided minority and non-minority schools not receiving any kind of aid or grants to meet their expenses from the appropriate governments or local authorities. 3. Section 12(1)(c) is read down so far as unaided nonminority and minority educational institutions are concerned, holding that it can be given effect to only on the principles of voluntariness, autonomy and consensus and not on compulsion or threat of nonrecognition or non-affiliation. 4. No distinction or difference can be drawn between unaided minority and non-minority schools with regard to appropriation of quota by the State or its reservation policy under Section 12(1)(c) of the Act. Such an appropriation of seats can also not be held to be a regulatory measure in the interest of the minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution. 5. The Appropriate Government and local authority have to establish neighbourhood schools as provided in Section 6 read with Sections 8 and 9, within the time limit prescribed in the Statute. 6. Duty imposed on parents....