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Society for Un-aided Private Schools of Rajasthan vs. Union of India (UOI) and Anr.
AIR 2012 SC 3445, 2012 (4) SCALE 272, (2012) 6 SCC 1
Hon’ble Judges/Coram: S.H. Kapadia, C.J.I., Swatanter Kumar and K.S. Panicker Radhakrishnan, JJ.
Date of Decision: 12.04.2012
FACTS: –
The 2009 Act makes the Right of Children to Free and Compulsory Education justiciable. The 2009 Act envisages that each child must have access to a neighbourhood school. The 2009 Act has been enacted keeping in mind the crucial role of Universal Elementary Education for strengthening the social fabric of democracy through provision of equal opportunities to all. The word “Free” in the long title to the 2009 Act stands for removal by the State of any financial barrier that prevents a child from completing 8 years of schooling. The word “Compulsory” in that title stands for compulsion on the State and the parental duty to send children to school. To protect and give effect to this right of the child to education as enshrined in Article 21 and Article 21A of the Constitution, the Parliament has enacted the 2009 Act. It envisages imparting of quality education by providing required infrastructure and compliance of specified norms and standards in the schools. By virtue of the 2009 Act, all schools established prior to the commencement of the said Act are thus obliged to fulfill the norms and standards specified inter alia in Sections 25, 26 and the Schedule of that Act. The State is also expected to first weed out those schools which are non-performing, or under-performing or non-compliance schools and upon closure of such schools, the students and the teaching and non-teaching staff thereof should be transferred to the neighbourhood school.
ISSUES: –
- Whether Right to education Act, 2009 is valid qua unaided non-minority schools?
- Whether Section 12(1)(c) of the 2009 Act is a reasonable restriction on the non-minority’s right to establish and administer an unaided educational institution under Article 19(6)?
- Whether Right to Education Act, 2009 is valid qua unaided minority schools?
JUDGMENT: –
Article 21A provides that the State shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State may, by law, determine. Thus, under the said Article, the obligation is on the State to provide free and compulsory education to all children of specified age. However, under the said Article, the manner in which the said obligation will be discharged by the State has been left to the State to determine by law. Thus, the State may decide to provide free and compulsory education to all children of the specified age through its own schools or through government aided schools or through unaided private schools. The question is whether such a law transgresses any constitutional limitation? The true test to determine the same is to see whether the impugned law infringes a fundamental right, the courts need to ask the question whether the impugned law infringes a fundamental right within the limits justified by the directive principles or whether it goes beyond them.
Fundamental rights have two aspects they act as fetter on plenary legislative powers and, secondly, they provide conditions for fuller development of our people including their individual dignity. Right to live in Article 21 covers access to education. But unaffordability defeats that access. It defeats the State’s endeavour to provide free and compulsory education for all children of the specified age. To provide for free and compulsory education in Article 45 is not the same thing as to provide free and compulsory education. The word “for” in Article 45 is a preposition. The word “education” was read into Article 21 by the judgments of this Court. However, Article 21 merely declared “education” to fall within the contours of right to live. To provide for right to access education, Article 21A was enacted to give effect to Article 45 of the Constitution. Under Article 21A, right is given to the State to provide by law “free and compulsory education”. Article 21A contemplates making of a law by the State. Thus, Article 21A contemplates right to education flowing from the law to be made which is the 2009 Act, which is child centric and not institution centric. Thus, as stated, Article 21A provides that the State shall provide free and compulsory education to all children of the specified age in such manner as the State may, by law, determine. The manner in which this obligation will be discharged by the State has been left to the State to determine by law. The 2009 Act is thus enacted in terms of Article 21A. It has been enacted primarily to remove all barriers (including financial barriers) which impede access to education.
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 of the day, whether one adopts the pith and substance test or the nature and character of the legislation test or the effect test, one finds that all these tests have evolved as rules of interpretation only as a matter of reasonableness. They help to correlate Article 21 with Article 14, Article 19 and, so on. Applying the above principle of reasonableness, though the right to access education falls as a subject matter under Article 21A and though to implement the said Article, Parliament has enacted the 2009 Act, one has to judge the validity of the said Act in the light of the principle of reasonableness in Article 19(6).
The content of Article 21A flows from Article 45 . The 2009 Act has been enacted to give effect to Article 21A. 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).
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 Parliament to enact a law as to the manner in which the State will discharge its obligation to provide for free and compulsory education. If the Parliament enacts the law, pursuant to Article 21A, enabling the State to access the network (including infrastructure) of schools including unaided non-minority schools would such a law be said to be unconstitutional, not saved under Article 19(6) Answer is in the negative. It must be noted that the expansive provisions of the 2009 Act are intended not only to guarantee the right to free and compulsory education to children, but to set up an intrinsic regime of providing right to education to all children by providing the required infrastructure and compliance of norms and standards. Secondly, unlike other fundamental rights, the right to education places a burden not only on the State, but also on the parent/ guardian of every child. The Constitution directs both burdens to achieve one end: the compulsory education of children free from the barriers of cost, parental obstruction or State inaction. Thus, Articles 21A and 51A(k) balance the relative burdens on the parents and the State. Right to establish an educational institution has now been recognized as a fundamental right within the meaning of Article 19(1)(g). This view is enforced by the opinion of this Court in T.M.A. Pai Foundation and P.A. Inamdar that all citizens have a right to establish and administer educational institutions under Articles 19(1)(g) and 26 but that right is subject to the provisions of Articles 19(6) and 26(a).
The constitutional obligation of the State to provide for free and compulsory education to the specified category of children is co-extensive with the fundamental right guaranteed under Article 19(1)(g) to establish an educational institution. 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 Article19(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). By virtue of Section 12(2) read with Section 2(n)(iv), private unaided school would be entitled to be reimbursed with the expenditure incurred by it in providing free and compulsory education to children belonging to the above category to the extent of per child expenditure incurred by the State in a school specified in Section 2(n)(i) or the actual amount charged from the child, whichever is less. Such a restriction is in the interest of the general public. It is also a reasonable restriction.
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.
The right established by Article 30(1) is a fundamental right declared in terms absolute unlike the freedoms guaranteed by Article 19 which is subject to reasonable restrictions. Article 30(1) is intended to be a real right for the protection of the minorities in the matter of setting up educational institutions of their own choice. However, Regulations may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition. However, such Regulation must satisfy the test of reasonableness and that such Regulation should make the educational institution an effective vehicle of education for the minority community or for the persons who resort to it.
Article 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 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. 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 2009 Act including Section 12(1)(c) violates the right conferred on such unaided minority schools under Article 30(1). However, in case of aided minority schools we have to keep in mind Article 29(2). As stated, Article 30(1) is subject to Article 29(2). The said Article confers right of admission upon every citizen into a State-aided educational institution. Article 29(2) refers to an individual right. It is not a class right. It applies when an individual is denied admission into an educational institution maintained or aided by the State. The 2009 Act is enacted to remove barriers such as financial barriers which restrict his/her access to education. It is enacted pursuant to Article 21A. Applying the above tests, we hold that the 2009 Act is constitutionally valid qua aided minority schools.
HELD: –
The Right of Children to Free and Compulsory Education Act, 2009 is constitutionally valid and shall apply to the following:
(i) A school established, owned or controlled by the appropriate Government or a local authority;
(ii) An aided school including aided minority school(s) receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority;
(iii) A school belonging to specified category; and
(iv) An unaided non-minority school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority.
(v) However, the Act and in particular Sections 12(1)(c) and 18(3) infringes the fundamental freedom guaranteed to unaided minority schools under Article 30(1) and, consequently, the Act shall not apply to such schools.
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