TaxTMI 
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2014 (5) TMI 1109
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..... [(2012) 6 SCC 102] to a Constitution Bench. As per the aforesaid order dated 06.09.2010, we are called upon to decide on the validity of clause (5) of Article 15 of the Constitution inserted by the Constitution (Ninety-third Amendment) Act, 2005 with effect from 20.01.2006 and on the validity of Article 21A of the Constitution inserted by the Constitution (Eighty-Sixth Amendment) Act, 2002 with effect from 01.04.2010. 2. Clause (5) of Article 15 of the Constitution reads as follows: "Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30." Clause (5) of Article 15 of the Constitution, therefore, enables the State to make a special provision, by law, for the advancement of socially and educationally bac....
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....ges have held the 2009 Act to be constitutionally valid, but they have also held that the 2009 Act is not applicable to unaided minority schools protected under Article 30(1) of the Constitution. In the aforesaid case, however, the three-Judge Bench did not go into the question whether clause (5) of Article 15 or Article 21A of the Constitution is valid and does not violate the basic structure of the Constitution. In this batch of the writ petitions filed by private unaided institutions, the constitutional validity of clause (5) of Article 15 and of Article 21A has to be decided by this Constitution Bench. 4. Both clause (5) of Article 15 and Article 21A were inserted in the Constitution by Parliament by exercise of its power of amendment under Article 368 of the Constitution. A Bench of thirteen-Judges of this Court in His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala & Anr. [(1973) 4 SCC 225] considered the scope of the amending power of Parliament under Article 368 of the Constitution and the majority of the Judges held that Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution. Hence, we are called upon to decide ....
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....prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions. Mr. Rohatgi explained that a nine-Judge Bench of this Court in I.R. Coelho (Dead) by LRs. v. State of T.N. [(2007) 2 SCC 1] relying on the aforesaid judgment in Minerva Mills case (supra) has similarly held that Articles 14, 19 and 21 of the Constitution stand on altogether a different footing and after the evolution of the basic structure doctrine in Kesavananda Bharati (supra), it will not be open to immunize legislation made by Parliament from judicial scrutiny on the ground that these fundamental rights are not part of the basic structure of the Constitution. He submitted that in the aforesaid judgment, this Court, therefore, has also held that the existence of the power of Parliament to amend the Constitution at will, with requisite voting strength, so as to make any kind of laws that excludes Part III including the power of judicial review under Artic....
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....ot be a regulatory measure and not a reasonable restriction on the right under Article 19(1)(g) of the Constitution within the meaning of Article 19(6) of the Constitution. He referred to the observations of this Court in P.A. Inamdar & Ors. v. State of Maharashtra & Ors. [(2005) 6 SCC 537] in paragraph 125 at page 601 that private educational institutions, which intend to provide better professional education, cannot be forced by the State to make admissions available on the basis of reservation policy to less meritorious candidates and that unaided institutions, as they are not deriving any aid from State funds, should have their own admissions following a fair, transparent and non-exploitative method based on merit. He vehemently submitted that when reservation in favour of the Scheduled Castes and the Scheduled Tribes and other socially and educationally backward classes of citizens is made in admission to private educational institutions and unaided private educational institutions by the State, such private educational institutions will no longer be institutions of excellence. He submitted that in T.M.A. Pai Foundation (supra), the majority of the Judges have held that privat....
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....facto destroy an essential element of the basic structure of our Constitution. He submitted that clause (5) of Article 15 of the Constitution inasmuch as it is violative of Articles 14, 19(1)(g) and 21 of the Constitution destroys the basic feature of the Constitution and is, therefore, beyond the amending power of Parliament. 10. Dr. Rajeev Dhavan, learned senior counsel appearing for the petitioners in W.P.(C) No.152 of 2013, submitted that two tests have to be applied for determining whether a constitutional amendment is violative of basic structure in so far as it affects fundamental rights, and these two tests are the 'identity test' and the 'width test'. He submitted that the Court has to see whether the identity of a fundamental right as judicially determined is not destroyed by the width of the power introduced by the amendment of the Constitution and if the conclusion is that the width of the power of the State vested by the constitutional amendment is such as to destroy the essence of the right, the amendment can be held to destroy the basic structure of the Constitution. In support of this proposition he relied on the judgment of this Court in M. Nagaraj and Others v. U....
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....nment purposes are beneficient particularly when political pressures exercised by numerically large groups can tear the country asunder by leaving it to the legislature to pick and choose favoured areas and favourite classes for preferential treatment. He submitted that clause (5) of Article 15 of the Constitution is an amendment made by Parliament to appease socially and educationally backward classes of citizens and the Scheduled Castes or the Scheduled Tribes for political gains and it is for the Court to protect the fundamental right of private educational institutions under Article 19(1) (g) of the Constitution as interpreted by this Court in T.M.A. Pai Foundation. 13. Mr. Divan next submitted that clause (5) of Article 15 of the Constitution as its very language indicates, applies to non-minority private educational institutions but does not apply to minority educational institutions referred to in clause (1) of Article 30 of the Constitution. He argued that there is absolutely no rationale for exempting the minority educational institutions from the purview of clause (5) of Article 15 of the Constitution and clause (5) of Article 15 of the Constitution really gives a favour....
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....ar from paragraphs 53 and 68 of the judgment of the eleven Judge Bench of this Court in T.M.A. Pai Foundation (supra) that reserving a small percentage of seats in private educational institutions, aided or unaided, for weaker, poorer and backward sections of society did not in any way affect the right of private educational institutions under Article 19(1)(g) of the Constitution. He argued that after the judgment of this Court in T.M.A. Pai Foundation (supra) a five-Judge Bench of this Court in Islamic Academy of Education & Anr. v. State of Karnataka & Ors. [(2003) 6 SCC 697 was of the view that as per the judgment in T.M.A. Pai Foundation (supra) in case of non-minority professional colleges a percentage of seats could be reserved by the Government for poorer and backward sections. He submitted that this view taken by the five-Judge Bench of this Court in Islamic Academy of Education & Anr. v. State of Karnataka & Ors. (supra), however, did not find favour with a seven-Judge Bench of this Court in P.A. Inamdar (supra) which held that there is nothing in the judgment of this Court in T.M.A. Pai Foundation (supra) allowing the State to regulate or control admissions in the unaided....
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....se (1) of Article 30 of the Constitution. This will be clear from the Statement of Objects and Reasons of the Bill, which after enactment became the Constitution (Ninety-Third Amendment) Act, 2005 extracted hereinbelow: "Greater access to higher education including professional education to a larger number of students belonging to the socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes has been a matter of major concern. At present, the number of seats available in aided or State maintained institutions, particularly in respect of professional education, is limited in comparison to those in private unaided institutions. 2. It is laid down in article 46, as a directive principle of State policy, that the State shall promote with special care the educational and economic interests of the weaker sections of the people and protect them from social injustice. To promote the educational advancement of the socially and educationally backward classes of citizens or of the Scheduled Castes and Scheduled Tribes in matters of admission of students belonging to these categories in unaided educational institutions, other than the minority e....
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....omas & Ors. [(1976) 2 SCC 310] in which this Court has held that clause (4) of Article 16 of the Constitution which has opening words similar to the opening words in clause (5) of Article 15 is not an exception or a proviso to Article 16, but is a provision intended to give equality of opportunity to backward classes of citizens in matters of public employment. Similarly, in Indra Sawhney & Ors. v. Union of India & Ors. [1992 Supp (3) SCC 217], this Court following the majority judgment in the case of State of Kerala & Anr. v. N.M. Thomas & Ors. (supra) held that clause (4) of Article 16 was not an exception to clause (1) of Article 16, but is an enabling provision to give effect to te equality of opportunity in matters of public employment. These two authorities have also been cited by K.G. Balakrishnan, CJ., in his judgment in Ashoka Kumar Thakur v. Union of India (supra) to hold that clause (5) of Article 15 of the Constitution is not an exception to clause (1) of Article 15, but may be taken as an enabling provision to carry out the constitutional mandate of equality of opportunity. 18. We may now consider whether clause (5) of Article 15 of the Constitution has destroyed the ....
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....s to be done by the Government according to the local needs and different percentages can be fixed for minority unaided and non-minority unaided and professional colleges. The same principles may be applied to other nonprofessional but unaided educational institutions viz. graduation and postgraduation non-professional colleges or institutes. 19. Thus, the content of the right under Article 19(1)(g) of the Constitution to establish and administer private educational institutions, as per the judgment of this Court in T.M.A. Pai Foundation (supra), includes the right to admit students of their choice and autonomy of administration, but this Court has made it clear in T.M.A. Pai Foundation (supra) that this right and autonomy will not be affected if a small percentage of students belonging to weaker and backward sections of the society were granted freeships or scholarships, if not granted by the Government. This was the charitable element of the right to establish and administer private educational institutions under Article 19(1)(g) of the Constitution. Hence, the identity of the right of private educational institutions under Article 19(1)(g) of the Constitution as interpreted by ....
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....ar (supra), therefore, is that the appropriation of seats by the State for enforcing a reservation policy was not a regulatory measure and not reasonable restriction within the meaning of clause (6) of Article 19 of the Constitution. As there was no provision other than clause (6) of Article 19 of the Constitution under which the State could in any way restrict the fundamental right under Article 19(1)(g) of the Constitution, Parliament made the Constitution (Ninety-third Amendment) Act, 2005 to insert clause (5) in Article 15 of the Constitution to provide that nothing in Article 19(1)(g) of the Constitution shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State. Clause (5) in Article 15 of the Constitution, thus, vests a power on the State, independent of and different from, the regulatory power under clause (6) of Article 19, and we have to examine whether this new....
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....isions for admission of socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes for their advancement and to a very limited extent affected the voluntary element of this right under Article 19(1)(g) of the Constituion. We, therefore, do not find any merit in the submission of learned counsel for the petitioners that the identity of the right of unaided private educational institutions under Article 19(1)(g) of the Constitution has been destroyed by clause (5) of Article 15 of the Constitution. 23.We may now examine whether the Ninety-Third Amendment satisfies the width test. A plain reading of clause (5) of Article 15 would show that the power of a State to make a law can only be exercised where it is necessary for advancement of socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes and not for any other purpose. Thus, if a law is made by the State only to appease a class of citizen which is not socially or educationally backward or which is not a Scheduled Caste or Scheduled Tribe, such a law will be beyond the powers of the State under clause (5) of Article 15 of the Constitution.....
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....ve aid from the State. As and when a law is made by the State under clause (5) of Article 15 of the Constitution, such a law would have to be examined whether it has taken into account the fact that private unaided educational institutions are not aided by the State and has made provisions in the law to ensure that private unaided educational institutions are compensated for the admissions made in such private unaided educational institutions from amongst socially and educationally backward classes of citizens or the Scheduled Castes and the Scheduled Tribes. In our view, therefore, a law made under clause (5) of Article 15 of the Constitution by the State on the ground that it treats private aided educational institutions and private unaided educational institutions alike is not immune from a challenge under Article 14 of the Constitution. Clause (5) of Article 15 of the Constitution only states that nothing in Article 15 or Article 19(1)(g) will prevent the State to make a special provision, by law, for admission of socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes to educational institutions including private educational....
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....grant admission to students of their choice under Article 30(1), when such a minority institution is granted the facility of receiving grant-in-aid, Article 29(2) would apply, and necessarily, therefore, one of the right of administration of the minorities would be eroded to some extent. Article 30(2) is an injunction against the state not to discriminate against the minority educational institution and prevent it from receiving aid on the ground that the institution is under the management of a minority. While, therefore, a minority educational institution receiving grant-in-aid would not be completely outside the discipline of Article 29(2) of the Constitution by no stretch of imagination can the rights guaranteed under Article 30(1) be annihilated. It is this context that some interplay between Article 29(2) and Article 30(1) is required. As observed quite aptly in St. Stephen's case "the fact that Article 29(2) applies to minorities as well as non-minorities does not mean that it was intended to nullify the special right guaranteed to minorities in Article 30(1)." The word "only" used in Article 29(2) is of considerable significance and has been used for some avowed purpo....
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...., for the advancement of socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. Such admissions of socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes who may belong to communities other than the minority community which has established the institution, may affect the right of the minority educational institutions referred to in clause (1) of Article 30 of the Constitution. In other words, the minority character of the minority educational institutions referred to in clause (1) of Article 30 of the Constitution, whether aided or unaided, may be affected by admissions of socially and educationally backward classes of citizens or the Scheduled Castes and the Scheduled Tribes and it is for this reason that minority institutions, aided or unaided, are kept outside the enabling power of the State under clause (5) of Article 15 with a view to protect the minority institutions from a law made by the majority. As has been held by the Constitution Bench of this Court in Ashoka Kumar Thakur v. Union of India (supra), the minority educational institutions, by themselves, are a separate ....
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....uled Castes and the Scheduled Tribes. This contention, in our considered opinion, is not founded on the experience of educational institutions in India. Educational institutions in India such as Kendriya Vidyalayas, Indian Institute of Technology, All India Institute of Medical Sciences and Government Medical Colleges admit students in seats reserved for backward classes of citizens and for the Scheduled Castes and the Scheduled Tribes and yet these Government institutions have produced excellent students who have grown up to be good administrators, academicians, scientists, engineers, doctors and the like. Moreover, the contention that excellence will be compromised by admission from amongst the backward classes of citizens and the Scheduled Castes and the Scheduled Tribes in private educational institutions is contrary to the Preamble of the Constitution which promises to secure to all citizens "fraternity assuring the dignity of the individual and the unity and integrity of the nation". The goals of fraternity, unity and integrity of the nation cannot be achieved unless the backward classes of citizens and the Scheduled Castes and the Scheduled Tribes, who for historical factors....
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....rom the appropriate Government or the local authority. The two learned Judges, however, held that the 2009 Act, in particular Sections 12(1)(c) and Section 18(3), infringe the fundamental rights guaranteed to unaided minority schools under Article 30(1) of the Constitution and therefore the 2009 Act shall not apply to such unaided minority schools. Differing from the majority opinion expressed by the two learned Judges, Radhakrishnan J. held that Article 21A casts an obligation on the State and not on unaided non-minority and unaided minority schools to provide free and compulsory education to children of the age of six to fourteen years. After the aforesaid judgment of this Court in Society for Unaided Private Schools of Rajasthan v. Union of India & Anr. (supra), the 2009 Act was amended by the Right of Children to Free And Compulsory Education Act, 2009 (Amendment Act, 2012) and by the amendment, it was provided in subsection (4) of Section 1 of the 2009 Act that subject to the provisions of Articles 29 and 30 of the Constitution, the provisions of the 2009 Act shall apply to conferment of rights on children to free and compulsory education. 31.Mr. Rohatgi, learned senior couns....
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....il they complete the age of fourteen years. He submitted that what Article 45 therefore meant was that the State alone shall endeavour to provide "for" free and compulsory education to all children upto the age of fourteen years. He submitted that by the Constitution (Eighty- Sixth Amendment) Act, 2002, Article 45 was deleted and in its place Article 21A was inserted in the Constitution. He submitted that in Article 21A of the Constitution, the word "for" is missing but this does not mean that the obligation of the State to fund free and compulsory education to all children upto the age of 14 years could be passed on by the State to private unaided educational institutions. He submitted that Article 21A, if construed to mean that the State could by law pass on its obligation under Article 21A to provide free and compulsory education to all children upto the age of fourteen years to private unaided schools, Article 21A of the Constitution would abrogate the right of private educational schools under Article 19(1)(g) of the Constitution as interpreted by this Court in T.M.A. Pai Foundation (supra). 34.Mr. Nariman submitted that the Objects and Reasons of the Bill which became the 20....
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....f Rajasthan v. Union of India & Anr. (supra), has taken a view that the 2009 Act will not apply to unaided minority schools but will apply to aided minority schools. They submitted that accordingly sub-section (4) of Section 1 of the 2009 Act provides that subject to the provisions of articles 29 and 30 of the Constitution, the provisions of the Act shall apply to conferment of rights on children to free and compulsory education. They submitted that this sub-section (4) of Section 1 of the 2009 Act should be declared as ultra vires Article 30(1) of the Constitution. Submissions of learned counsel for the Union of India: 36.In reply, Mr. K.V. Vishwanathan, learned Additional Solicitor General, submitted that the Statement of Objects and Reasons of the Bill, which was enacted as the Constitution (Eighty-Sixth Amendment) Act, 2002, stated that the goal set out in Article 45 of the Constitution of providing free and compulsory education for children upto the age of 14 years could not be achieved even after 50 years of adoption of the provision and in order to fulfill this goal, it was felt that a new provision in the Constitution should be inserted as Article 21A providing that the S....
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....1) of the Constitution they have equal status and accordingly this Court has held in Society for Unaided Private Schools of Rajasthan v. Union of India & Anr. (supra) the 2009 Act will not apply to unaided minority schools but will apply to aided minority schools. He submitted that accordingly the 2009 Act was amended by the Right of Children to Free And Compulsory Education (Amendment) Act, 2012, so as to provide in subsection (4) of Section 1 of the 2009 Act that subject to the provisions of Articles 29 and 30 of the Constitution, the provisions of the 2009 Act shall apply to conferment of rights on children to free and compulsory education. Opinion of the Court on Article 21A of the Constitution and on the validity of 2009 Act: 39. We have considered the submissions of learned counsel for the parties and we find that this is what it is stated in the Statement of Objects and Reasons of the Constitution (Eighty-Third Amendment) Bill, 1997, which ultimately was enacted as the Constitution (Eighty-Sixth Amendment) Act, 2002: "The Constitution of India in a Directive Principle contained in article 45, has 'made a provision for free and compulsory education for all children up ....
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....ulsory education for all children up to the age of fourteen years within ten years of promulgation of the Constitution, this goal could not be achieved even after 50 years and, therefore, a constitutional amendment was proposed to insert Article 21A in Part III of the Constitution. Bearing in mind this object of the Constitution (Eight-Sixth Amendment) Act, 2002 inserting Article 21A of the Constitution, we may now proceed to consider the submissions of learned counsel for the parties. 40. Article 21A of the Constitution, as we have noticed, states that 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. The word 'State' in Article 21A can only mean the 'State' which can make the law. Hence, Mr. Rohatgi and Mr. Nariman are right in their submission that the constitutional obligation under Article 21A of the Constitution is on the State to provide free and compulsory education to all children of the age of 6 to 14 years and not on private unaided educational institutions. Article 21A, however, states that the State shall by law determine the "manner" in which it will discharge ....
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....kward and poorer sections of the society on private unaided educational institutions. While discussing the validity of clause (5) of Article 15, we have also held that there is an element of voluntariness of all the freedoms under Article 19(1) of the Constitution, but the voluntariness in these freedoms can be subjected to law made under the powers available to the State under clause (2) to (6) of Article 19 of the Constitution. 42. In our considered opinion, therefore, by the Constitution (Eighty-Sixth Amendment) Act, a new power was made available to the State under Article 21A of the Constitution to make a law determining the manner in which it will provide free and compulsory education to the children of the age of six to fourteen years as this goal contemplated in the Directive Principles in Article 45 before this constitutional amendment could not be achieved for fifty years. This additional power vested by the Constitution (Eighty-Sixth Amendment) Act, 2002 in the State is independent and different from the power of the State under clause (6) of Article 19 of the Constitution and has affected the voluntariness of the right under Article 19(1)(g) of the Constitution. By exe....
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....y-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. We further find that under Section 12(2) of the 2009 Act such a school shall be reimbursed expenditure so incurred by it to the extent of per-childexpenditure incurred by the State, or the actual amount charged from the child, whichever is less, in such manner as may be prescribed. Thus, ultimately it is the State which is funding the expenses of free and compulsory education of the children belonging to weaker sections and several groups in the neighbourhood, which are admitted to a private unaided school. These provisions of the 2009 Act, in our view, are for the purpose of providing free and compulsory education to children between the age group of 6 to 14 years and are consistent with the right under Article 19(1)(g) of the Constitution, as interpreted by this Court in T.M.A. Pai Foundation (supra) and are meant to achieve the constitutional goals of equality of opportunity in elementary education to children of weaker sections and disadvantaged groups in our society. We, theref....
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....at an aided school receiving aid and grants, whole or part, of its expenses from the appropriate Government or the local authority has to provide free and compulsory 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. Thus, a minority aided school is put under a legal obligation to provide free and compulsory elementary education to children who need not be children of members of the minority community which has established the school. We also find that under Section 12(1)(c) read with Section 2(n)(iv), an unaided school has to admit into twenty-five per cent of the strength of class I children belonging to weaker sections and disadvantaged groups in the neighbourhood. Hence, unaided minority schools will have a legal obligation to admit children belonging to weaker sections and disadvantaged groups in the neighbourhood who need not be children of the members of the minority community which has established the school. While discussing the validity of clause (5) of Article 15 of the Constitution, we have held that members of communities other ....