# PRAMATI EDUCATIONAL & CULTURAL TRUST® & ORS v. UNION OF INDIA & ORS

- **Citation:** [2014] 11 S.C.R. 712
- **Court:** Supreme Court of India
- **Decided:** 2014-05-06
- **Bench:** R.M. Lodha, A.K. Patnaik, Sudhansu Jyoti Mukhopadhaya Dipak Misra, Fakkir Mohamed Ibrahim Kalifulla
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pramati-educational-cultural-trust-ors-v-union-of-india-ors-29463
- **Pages:** 53

## Headnote

Constitution of India, 1950:
Art. 15(5) [as inserte.d by Constitution (Ninty-Third
Amendment) Act, 2005] and Arts. 14, 19(1)(g) and 21 -
D Constitutional validity of Art. 15(5) - Held: Art. 15(5) does not
alter the basic structure and framework of the Constitution -
The provision is also not violative of the concept of secularism
- None of the rights under Articles 14, 19(1)(g) and 21 have
been abrogated by clause (5) of Article 15 and hence, it is
E constitutionally valid.
Article 21 A [as inserted by Constitution (Eighty-Sixty
Amendment) Act, 2002] 19(1)(g) and 30(1) - Constitutipnal
validity of Art. 21A -There is nothing in Art. 21A which conflicts
with either the right of private unaided schools under Article
F
19(1 )(g) or the right of minority schools under Article 30(1) -
However, the law made under Art. 21A if abrogates the rights
under Articles 19(1)(g) and 30(1), can be held ultra vires the
Constitution - Right of Children to Free and Compulsory
Education Act, which was enacted under Article 21A, in so far
G as it was made applicable to aided minority schools is ultra
vires the Constitution -
Right of Children to Free and
Compulsory Education Act, 2009.
Disposing of the petitions, the Court
H
712
•
•
PRAMATI EDUCATIONAL & CULTURAL TRUST® v. 713
UNION OF INDIA
HELD:
1.1.
The
Constitution
(Ninety-third
A
Amendment) Act, 2005 inserting clause (5) of Article 15
of the Constitution does not alter the basic structure and
framework of the Constitution. None of the rights under
Articles 14, 19(1)(g) and 21 of the Constitution have been
abrogated by clause (5) of Article 15 of the Constitution.
B
The (Ninety-third Amendment) Act, 2005 of the
Constitution inserting clause (5) of Article 15 of the
Constitution is valid. [paras 29 and 47] [749-D, E; 763-H;
764-A]
1.2. As the object of clause (5) of Article 15 of the
C
Constitution is to provide equal opportunity to· a large
number of students belonging to the socially and
educationally backward classes of citizens or for the
Scheduled Castes and the Scheduled Tribes to study in
educational institutions and equality of opportunity is also
D
the object of clauses (1) and (2) of Article 15 of the
Constitution, it cannot be held that clause (5) of Article 15
of the Constitution is an exception or a proviso overriding
Article 15 of the Constitution, but an enabling provision to
make equality of opportunity promised in the Preamble of E
the Constitution, a reality. [para 16] [736-8-D]
State of Kera/a and Anr. vs. N.M. Thomas and Ors. (1976)
2 SCC 310: 1976 (1) SCR 906; Indra Sawhney and Ors. vs.
Union of India and Ors. 1992 Supp (3) SCC 217: 1992 (2)
F
Suppl. SCR 454; Ashoka Kumar Thakur vs. Union of India
and Ors. (2008) 6 sec 1: 2008 (4) SCR 1 - relied on.
1.3. The voluntary nature of the right under Article
19(1 )(g) of the Constitution can be subjected to
reasonable restrictions imposed by the State by law G
under clause (6) of Article 19 of the Constitution by
making regulatory provisions to ensure the maintenance
of proper academic standards, atmosphere and
infrastructure (including qualified staff) and the
H
714
SUPREME COURT REPORTS
[2014] 11 S.C.R.
A prevention of maladministration by those in charge of the
management. Clause (5) in Article 15 has been inserted
to enable the State to make a law making special
provisions for admission of socially and educationally
backward classes of citizens or for the Scheduled Castes
B 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 Constitution. Thus, the
identity of the right of unaided private educational
institutions under Article 19(1 )(g) of the Constitution has
c not been destroyed by clause (5) of Article 15 of the
Constitution. [para 22] [741-C-H]
T.M.A. Pai Foundation and Ors vs. State of Karnataka
and Ors. (2002) 8 sec 481: 2002 (3) Suppl. SCR 587; P.A.
lnamdar and Ors. vs. State of Maharashtra and Ors. (2005) 6
D SCC 537: 2005 (2

## Text

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A
B
c
[2014] 11 S.C.R. 712
PRAMATI EDUCATIONAL & CULTURAL TRUST® &
ORS.
v.
UNION OF INDIA & ORS.
(Writ Petition (C) No. 416 of 2012)
MAY 06, 2014
[R.M. LODHA, CJI, A.K. PATNAIK, SUDHANSU JYOTI
MUKHOPADHAYA DIPAK MISRA AND FAKKIR
MOHAMED IBRAHIM KALIFULLA, JJ.]
Constitution of India, 1950:
Art. 15(5) [as inserte.d by Constitution (Ninty-Third
Amendment) Act, 2005] and Arts. 14, 19(1)(g) and 21 -
D Constitutional validity of Art. 15(5) - Held: Art. 15(5) does not
alter the basic structure and framework of the Constitution -
The provision is also not violative of the concept of secularism
- None of the rights under Articles 14, 19(1)(g) and 21 have
been abrogated by clause (5) of Article 15 and hence, it is
E constitutionally valid.
Article 21 A [as inserted by Constitution (Eighty-Sixty
Amendment) Act, 2002] 19(1)(g) and 30(1) - Constitutipnal
validity of Art. 21A -There is nothing in Art. 21A which conflicts
with either the right of private unaided schools under Article
F
19(1 )(g) or the right of minority schools under Article 30(1) -
However, the law made under Art. 21A if abrogates the rights
under Articles 19(1)(g) and 30(1), can be held ultra vires the
Constitution - Right of Children to Free and Compulsory
Education Act, which was enacted under Article 21A, in so far
G as it was made applicable to aided minority schools is ultra
vires the Constitution -
Right of Children to Free and
Compulsory Education Act, 2009.
Disposing of the petitions, the Court
H
712
•
•
PRAMATI EDUCATIONAL & CULTURAL TRUST® v. 713
UNION OF INDIA
HELD:
1.1.
The
Constitution
(Ninety-third
A
Amendment) Act, 2005 inserting clause (5) of Article 15
of the Constitution does not alter the basic structure and
framework of the Constitution. None of the rights under
Articles 14, 19(1)(g) and 21 of the Constitution have been
abrogated by clause (5) of Article 15 of the Constitution.
B
The (Ninety-third Amendment) Act, 2005 of the
Constitution inserting clause (5) of Article 15 of the
Constitution is valid. [paras 29 and 47] [749-D, E; 763-H;
764-A]
1.2. As the object of clause (5) of Article 15 of the
C
Constitution is to provide equal opportunity to· a large
number of students belonging to the socially and
educationally backward classes of citizens or for the
Scheduled Castes and the Scheduled Tribes to study in
educational institutions and equality of opportunity is also
D
the object of clauses (1) and (2) of Article 15 of the
Constitution, it cannot be held that clause (5) of Article 15
of the Constitution is an exception or a proviso overriding
Article 15 of the Constitution, but an enabling provision to
make equality of opportunity promised in the Preamble of E
the Constitution, a reality. [para 16] [736-8-D]
State of Kera/a and Anr. vs. N.M. Thomas and Ors. (1976)
2 SCC 310: 1976 (1) SCR 906; Indra Sawhney and Ors. vs.
Union of India and Ors. 1992 Supp (3) SCC 217: 1992 (2)
F
Suppl. SCR 454; Ashoka Kumar Thakur vs. Union of India
and Ors. (2008) 6 sec 1: 2008 (4) SCR 1 - relied on.
1.3. The voluntary nature of the right under Article
19(1 )(g) of the Constitution can be subjected to
reasonable restrictions imposed by the State by law G
under clause (6) of Article 19 of the Constitution by
making regulatory provisions to ensure the maintenance
of proper academic standards, atmosphere and
infrastructure (including qualified staff) and the
H
714
SUPREME COURT REPORTS
[2014] 11 S.C.R.
A prevention of maladministration by those in charge of the
management. Clause (5) in Article 15 has been inserted
to enable the State to make a law making special
provisions for admission of socially and educationally
backward classes of citizens or for the Scheduled Castes
B 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 Constitution. Thus, the
identity of the right of unaided private educational
institutions under Article 19(1 )(g) of the Constitution has
c not been destroyed by clause (5) of Article 15 of the
Constitution. [para 22] [741-C-H]
T.M.A. Pai Foundation and Ors vs. State of Karnataka
and Ors. (2002) 8 sec 481: 2002 (3) Suppl. SCR 587; P.A.
lnamdar and Ors. vs. State of Maharashtra and Ors. (2005) 6
D SCC 537: 2005 (2) Suppl. SCR 603 - followed.
1.4. Power in clause (5) of Article 15 of the
Constitution is a guided power to be exercised for the
limited purposes stated in the clause and as and when a
E law is made by the State in purported exercise of the
power under clause (5) of Article 15 of the Constitution,
the Court will have to examine and find out whether it is
for the purposes of advancement of any socially and
educationally backward classes of citizens or for the
F Scheduled Castes and the Scheduled Tribes and whether
the law is confined to admission of such socially and
educationally backward classes of citizens or for the
Scheduled Castes and the Scheduled Tribes to private
educational institutions, whether aided or unaided, and
if the Court finds that the power has not been exercised
G for the purposes mentioned in clause (5) of Article 15 of
the Constitution, the Court will have to declare the law as
ultra vires Article 19(1 )(g) of the Constitution. Thus, the
width of the power vested on the State under clause (5)
of Article 15 of the Constitution by the constitutional
H
•
•
PRAMATI EDUCATIONAL & CULTURAL TRUST® v. 715
I
UNION OF INDIA
amendment is not such as to destroy the right under A
Article 19(1)(g) of the Constitution. [para 23] [742-E-H;
743-A]
1.5. Clause (5) of Article 15 of the Constitution does
not say that such a .law will not comply with the other
8
requirements of equality as provided in Article 14 of the
Constitution. Hence, it cannot be said that clause (5) of
Article 15 of the Constitution that insofar as it treats
unaided private educational institutions and aided private
educational institutions alike it is violative of Article 14 of C
the Constitution. The minority educational institutions, by
themselves, are a separate class and their rights are
protected under Article 30 of the Constitution, and,
therefore, the exclusion of minority educational
institutions from Article 15(5) is not violative of Article 14
of the Constitution. However, a law made under clause
D
. (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. [Paras 24 and 26] [743-H; 744-A; 747-8-C]
E
Ashoka Kumar Thakur vs. Union of India and Ors. (2008)
6 SCC 1: 2008 (4) SCR .1 - relied on.
1.6. Secularism is no doubt a basic feature of the
Constitution, but clause (5) of Article 15 of the
Constitution which excludes religious minority
institutions in clause (1) of Article 30 of the Constit.ution
is not violative of the concept of secularism. By excluding
F
the minority institutions referred to in clause (1) of Article
30 of the Constitution, the secular character of India is G
maintained and not destroyed. [para 27] [748-A, C]
Dr M. Ismail Faruqui and Ors. vs. Union of India and Ors.
1994) 6 SCC 360: 1994 (5) Suppl. SCR 1 - relied on.
H
716
SUPREME COURT REPORTS
[2014] 11 S.C.R.
A
1.7. Clause (5) of Article 15 of the Constitution does
not violate the right under Article 21 of the Constitution.
The plea that excellence will be compromised by
admission from amongst the backward classes of
citizens and the Scheduled Castes and the Scheduled
B 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". [para
c
28) [748-H; 749-A-C]
2.1. The Constitution (Eighty-Sixth Amendment) Act,
2002 inserting Article 21A of the Constitution does not
alter the basic structure or framework of the Constitution
and is constitutionally valid. [para 47) [763-H; 764-A]
D
2.2. Article 21A of the Constitution 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
E make the law. Hence, the constitutional obligation under
Article 21A of the Constitution is on the State 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 its constitutional
F obligation under Article 21A. Thus, a new power was
vested in the State to enable the State to discharge this
constitutional obligation by making a law. However,
Article 21A has to be harmoniously construed with Article
19(1 )(g) and Article 30(1) of the Constitution. [para 40]
G [757-H; 758-A-D]
Venkataramana Devaru vs. State of Mysore AIR 1958 SC
255: 1958 SCR 895 - relied on.
2.3. There is nothing in Article 21A which conflicts
H with either the right of private unaided schools under
•
• PRAMATI EDUCATIONAL & CULTURAL TRUST® v. 717
UNION OF INDIA
Article 19(1)(g) or the right of minority schools under A
Article 30(1) of the Constitution, but the law made under
Article 21A may affect these rights under Articles 19(1)(g)
and 30(1). The law made by the State to provide free and
compulsory education to the children of the age of 6 to
14 years should not, therefore, be such as to abrogate
B
the right of unaided private educational schools under
Article 19(1 )(g) of the Constitution or the right of the
minority schools, aided or unaided, under Article 30(1) of
the Constitution. [para 40] [758-F-G]
2.4. Thus by the Constitution (Eighty-Sixth
C
Amendment) Act, a new power was made available to the
St§te 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. This additional power vested in the State
D
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 exercising this additional
power, the State can by law impose admissions on
E
private unaided schools and so long as the law made by
the State in exercise of this power under Article 21A of
the Constitution is for the purpose of providing free and
compulsory education to the children of the age of 6 to
14 years and so long as such law forces admission of
F
children of poorer, weaker and backward sections of the
society to a small percentage of the seats in private
educational institutions to achieve the constitutional
goals of equality of opportunity and social justice set out
in the Preamble of the Constitution, such a law would not G
be destructive of the right of the private unaided
educational institutions under Article 19(1)(g) of the
Constitution. [para 42] [759-F-H; 760-A-C]
2.5. Right of Children to Free and Compulsory
H
718
SUPREME COURT REPORTS
[2014] 11 S.C.R.
A Education Act, 2009 was enacted to achieve the goals of
equality, social justice, democracy not creation of just and
humane society. Under Section 12(1)(c) read with Section
2(n)(iv) of 2009 Act, an unaided school not receiving any
kind of aid or grants to meet its expenses from the
B appropriate·Government or the local authority is required
to 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
c elementary education till its completion. 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
0 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 are consistent with the right under Article
E 19(1)(g) of the Constitution and are meant to achieve the
constitutional goals of equality of opportunity in
elementary education to children of weaker sections and
disadvantaged groups in the society. Therefore, it cannot
be said that Article 21A of the Constitution and the 2009
F Act violate the right of non-minority private schools under
Article 19(1 )(g) of the Constitution. [para 44] [761-B-G]
2.6. Religious and linguistic minorities have a special
constitutional right to establish and administer
G educational schools of their choice and the State has no
power to interfere with the administration of minority
institutions and can make only regulatory measures and
has no power to force admission of students from
amongst non-minority communities, particularly in
H minority schools, so as to affect the minority character
•
•
PRAMATI EDUCATIONAL & CULTURAL TRUST® v. 719
UNION OF INDIA
of the institutions. Moreover, Parliament cannot in
A
exercise of its amending power abrogate the rights of
minorities. Thus, the power under Article 21A of the
Constitution vesting in the State cannot extend to making
any law which will abrogate the right of the minorities to
establish and administer schools of their choice. [para 45]
B
[762-A, C, G, HJ
Kesavananda Bharati Sripadagalvaru vs. State of Kera/a
and Anr. (1973) 4 SCC 225: 1973 Suppl. SCR 1 - followed.
2.7. Section 12(1)(b) read with Section 2(n) (iii) of the c
2009 Act provides that 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
0
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
E
has established the school. 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
F
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. Members of communities other G
than the minority community which has established the
school cannot be forced upon a min.ority institution
because that may destroy the minority character of the
school. If the 2009 Act is made applicable to minority
schools, aided or unaided, the right of the minorities
H
720
SUPREME COURT REPORTS
[2014] 11 S.C.R.
A under Article 30(1) of the Constitution will be abrogated.
Therefore, the 2009 Act insofar it is made applicable to
minority schools referred in clause (1) of Article 30 of the
Constitution is ultra vires the Constitution. The 2009 Act
is not applicable to aided minority schools.[para 46-47]
B [762-H; 763-A-G]
Society for Unaided Private Schools of Rajasthan vs.
Union of India and Anr. (2012) 6 SCC 1: 2012 (2) SCR 715
- partly overruled.
C
Society for Unaided Private Schools of Rajasthan vs.
Union of India and Anr. (2012) 6 SCC 102 - referred to.
Minerva Mills Ltd. and Ors. vs. Union of India and Ors.
(1980) 3 SCC 625: 1981 (1) SCR 206; l.R. Coelho (Dead)
by LRs. vs. State of T.N. (2007) 2 SCC 1: 2007 (1) SCR 706;
o Mohini Jain (Miss) vs. State of Karnataka and Ors. (1992) 3
SCC 666: 1992 (3) SCR 658; M. Nagaraj and Others vs.
Union of India and Ors. (2006) 8 SCC 212: 2006 (7) Suppl.
SCR 336; Edward A Boyd and George H. Boyd vs. Unites
States (1884) 116 U.S. 616; Dwarkadas Shrinivas vs. The
E Sholapur Spining and Weaving Co. Ltd. and Ors. AIR 1954
SC 119: 1954 SCR 67 4; The Ahmedabad St. Xavier's
College Society and Anr. vs. State of Gujarat and Anr. (1974)
1 SCC 717: 1975 (1) SCR 173; Islamic Academy of
Education and Anr. vs. State of Karnataka and Ors. (2003) 6
F SCC 697: 2003 (2) Suppl. SCR 474; P.O. Shamdasani vs.
The Central Bank of India Ltd. AIR 1952 SC 1952; Smt. Vidya
Verma vs. Dr. Shiv Narain Verma AIR 1956 SC 108: 1955
SCR 983 - cited.
G
H
Case Law Reference:
(2012) 6 sec 102
1981 (1) SCR 206
2007 (1) SCR 706
1992 (3) SCR 658
referred to
cited
cited
cited
Para 1
Para 5
Para 5
Para 8
•
•
PRAMATI EDUCATIONAL & CULTURAL TRUST® v. 721
UNION OF INDIA
2006 (7) Suppl. SCR 336
cited
Para 10
A
(1884) 116 U.S. 616
cited
Para 12
1954 SCR 674
cited
Para 12
1975 (1) SCR 173
cited
Para 13
B
2003 (2) Suppl. SCR 474
cited
Para 14
1976 (1) SCR 906
cited
Para 17
1992 (2) Suppl. SCR 454
cited
Para 17
c
2002 (3) Suppl. SCR 587
followed
Para 19
2005 (2) Suppl.· SCR 603
followed
Para 20
2008 (4) SCR 1
relied on
Para 26
1994 (5) Suppl. SCR 1
relied on
Para 27
D
IR 1952 SC 1952
cited
Para 32
1955 SCR 983
cited
Para 32
1958 SCR 895
relied on
Para 40
E
1973 Suppl. SCR 1
followed
Para 45
2012 (2) SCR 715
partly
Para 46
overruled
CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No.
F
416 of 2012 .
Under Article 32 of the Constitution of India.
WITH
G
W.P.(C) Nos. 152, 1081 of 2013.
W.P.{C) Nos. 60, 95, 106, 128, 144, 145, 160, 136 of 2014.
Mohan Parasaran, S.G., K.V. Vishwanathan, A.S.G.,
H
------- ----
722
SUPREME COURT REPORTS
(2014] 11 S.C.R.
A Mukul Rohtagi, Rama Jois, Dr. Rajeev Dhawan, Ajmal Khan,
Anil B. Divan, Pravin Samdani, R.F. Nariman, Arvind V. Datar,
M.N. Rao, V. Giri, T.R. Andhyarujina, Govind Goel, Ankit Goel,
S. Basavaraj, Nikhil Goel, Kamal Gupta, Aparajita Singh, Rahul
Gupta,
G.R.
Mohan,
A.
Lakshminarayanan,
V.
B Ramasubramanian, Ranvir Singh, Dr. Kailash Chand, Prateek
Seksaria, Pralhad Pranjape, Pragya Baghel, Ranjeeta Rohtagi,
Sushil Salwan, Vedanta Verma, Pallavi Langar, Gupte, Krian
Bapat, Pratap Venugopal, Gaurav Nair (for K.J. John & Co.)
Aparna Singhal, E.C. Agrawala, Mahesh Aggarwal, Rishi
c Agrawala, Vivek Jain, Nikhil Majithia, Yadav Narender Singh,
D.L. Chidananda, Aditi Anil Dani, Sushma Suri, Mehul M.
Gupta, Ashwin Kumar, D.S., Abhishek Kaushik, Gautam S.
Bharadwaj, Adeeba Mujahid, V.N. Raghupathy, Parikshit P.
Angadi, M. Yogesh Kanna, Vanita Chandrakant Giri, Tripurari
D Ray, Anil Kaushik, K.B. Pradeep, Deepak Jain, Arunima
Dwivedi, Rajinder Singh, Shilpa Singh, Kamal Gupta, Aparajita
Singh, Gagan Gupta, Mahesh Aggarwal, Radhika Gautam,
Apama Singhal, Vivek Jain (for E.C. Agarwala), Jayna Kothari,
Vaasha Iyengar, Reecha Das, Dorashree M., Gaurv
E Mukherjee, Soumya Chakraborty, S.K. Sabharwal for the
appearing parties.
The Judgment of the Court was delivered by
A. K. PATNAIK, J. 1. This is a reference made by a threeF Judge Bench of this Court by order dated 06.09.2010 in
Society for Unaided Private Schools of Rajasthan v. Union
of India & Anr. [(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
G 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.
H
•
•
PRAMATI EDUCATIONAL & CULTURAL TRUST ® v. 723
UNION OF INDIA [AK. PATNAIK, J.]
2. Clause (5) of Article 15 of the Constitution reads as
A
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
B
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
C
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 backward classes
D
of citizens or for the Scheduled Castes and Scheduled Tribes
insofar 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 of
E
the Constitution. The constitutional validity of clause (5) of Article
15 of the Constitution insofar as it enables the State to make
special provisions relating to admission to educational
institutions of the State and educational institutions aided by
the State was considered by a Constitution Bench of this Court
F
in Ashoka Kumar Thakur v. Union of India & Ors. [(2008) 6
SCC 1) and the Constitution Bench held in the aforesaid case
that clause (5) of Article 15 is valid and does not violate the
"basic structure" of the Constitution so far as it relates to the
State-maintained institutions and aided educational institutions.
G
In the aforesaid case, however, the Constitution Bench left open
the question whether clause (5) of Article 15 was constitutionally
valid or not so far as "private unaided" educational institutions
are concerned, as such "private unaided" educational
institutions were not before the Court.Jhis batch of writ petitions
H
724
SUPREME COURT REPORTS
(2014] 11 S.C.R.
A has been filed by private unaided educational institutions and
we are called upon to decide whether clause (5) of Article 15
of the Constitution so far as it relates to "private unaided"
educational institutions is valid and does not violate the basic
structure of the Constitution.
B
c
3. Article 21A of the Constitution reads as follows:
"21A. Right to education.-The State shall provide free
and compulsory education to all children of the age of six
to fourteen years in such manner as the State may, by law,
determine.".
Thus, Article 21A of the Constitution, provides 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
D may, by law, determine. Parliament has made the law
contemplated by Article 21A by enacting the Right of Children
to Free and Compulsory Education Act, 2009 (for short 'the
2009 Act'). The constitutional validity of the 2009 Act was
considered by a three-Judge Bench of the Court in Society for
E Unaided Private Schools of Rajasthan v. Union of India & Anr.
((2012) 6 SCC 1]. Two of the three Judges 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
F 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 21 A has to be decided by this
G 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
H Bench of thirteen-Judges of this Court in His Holiness
•
•
PRAMATI EDUCATIONAL & CULTURAL TRUST® v. 725
UNION OF INDIA [A.K. PATNAIK, J.]
Kesavananda Bharati Sripadagalvaru v. State of Kera/a & Anr.
A
[(1973) 4 sec 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 in this
B
reference the following two substantial questions of law:
(i)
Whether by inserting clause (5) in Article 15 of the
. Constitution. by the Constitution (Ninety-third
Amendment) Act, 2005, Parliament has altered the
basic structure or framework of the Constitution.
C
(ii)
Whether by inserting Article 21A of the Constitution
by the Constitution (Eighty-Sixth Amendment) Act,
2002, Parliament has altered the basic structure or
framework of the Constitution.
D
Validity of clause (5) of Article 15 of the Constitution
Contentions of learned counsel for the petitioners:
5. Mr. Mukul Rohatgi, learned senior counsel for the E
petitioners in Writ Petition (C) No.416 of 2012, submitted that
in T.M.A. Pai Foundation & Ors v. State of Karnataka & Ors.
[(2002) 8 sec 481j'the majority of the Judges of the elevenJudge Bench speaking through Kirpal C.J. have held that the
fundamental right to carry on any occupation under Article
F
19(1 )(g) of the Constitution includes the right to run and
administer a private unaided educational institution. He
submitted that in MineNa Miffs Ltd. & Ors. v. Union of India &
Ors. [(1980) 3 SCC 625] Chandrachud, CJ., writing the
judgment for the majority of the Judges of the Constituticn G
Bench, has held that Articles 14, 19 and 21 of the Constitution
constitute the golden triangle which affords to the people of this
country an assurance that the promise held forth by the
Preamble will be performed by ushering an egalitarian era
through the discipline of fundamental rights, that is, without H
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SUPREME COURT REPORTS
[2014] 11 S.C.R.
A
emasculation of the rights to liberty and equality which alone
can help preserve the dignity of the individual. He submitted that
in the aforesaid case, the Constitution Bench held that Section
4 of the Constitution (Forty-second Amendment) Act is beyond
the amending power of Parliament and is void since it damages
B
the basic or essential features of the Constitution and destroys
its basic structure by a total exclusion of challenge to any law
on the ground that it is inconsistent with, or takes away or
abridges any of the rights conferred by Article 14 or Article 19 of
the Constitution. Mr. Rohatgi submitted that Article 19(1)(g) of
c the Constitution is, therefore, a basic feature of the Constitution
and this basic feature is destroyed by providing in clause (5)
of Article 15 of the Constitution 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
0
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 /.R.
Coelho (Dead) by LRs. v. State of T.N. [(2007) 2 SCC 1]
E
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
F
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
al)1end the Constitution at will, with requisite voting strength, so
G as to make any kind of laws that excludes Part Ill including the
power of judicial review under Article 32 is incompatible with
the basic structure of the Constitution and, therefore, such an
exercise, if challenged, has to be tested on the touchstone of
basic structure as reflected in Article 21 read with Article 14 and
H
•
• PRAMATI EDUCATIONAL & CULTURAL TRUST® v. 727
UNION OF INDIA [A.K. PATNAIK, J.]
Article 19 of the Constitution. Mr. Rohatgi submitted that
A
Bhandari, J. has taken the view in Ashoka Kumar Thakur v.
Union of India (supra) that the imposition of reservation on
unaided institutions by the Ninety-third Amendment has
abrogated Article 19(1 )(g), a basic feature of the Constitution
and, therefore, the Ninety-third Amendment of the Constitution
B
is ultra vires the Constitution.
6. Mr. R.F. Nariman, learned senior counsel for the
petitioners in Writ Petition (C ) No.128 of 2014, submitted that ·
clause (5) of Article 15 of the Constitution is violative of Article
C
14 of the Constitution inasmuch as it treats unequals as equals.
He argued that clause (5) of Article 15 of the Constitution fails
to make a distinction between aided and unaided educational
institutions and treats both aided and unaided alike in the matter
of making special provisions for advancement of socially and
educationally backward classes "of citizens or for the Scheduled
D
Castes and the Scheduled Tribes insofar as such special
provisions relate to their admission to such educational
institutions. He referred to paragraph 55 of the majority judgment
of this Court in TM.A. Pai Foundation (supra) in which the
difference in the administration of private unaided institutions
E
and government-aided institutions has been noticed. He argued
that clause (5) of Article 15 of the Constitution as its very
language indicates does not apply to minority educational
institutions referred to in clause (1) of Article 30 of the
Constitution. He submitted that Article 14 is, thus, violated
F
because aided minority institutions and unaided minority
institutions cannot be treated alike. Clause (5) of Article 15 of
the Constitution, therefore, is discriminatory and violative of the
equality clause in Article 14 of the Constitution, which is a basic
feature of the Constitution.
G
7. Mr. Nariman next submitted that clause (5) of Article 15
of the Constitution is a clear violation of Article 19(1 )(g) of the
Constitution, inasmuch as it compels private educational
institutions to give up a share of the available seats to the
H
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SUPREME COURT REPORTS
[2014] 11 S.C.R.
A candidates chosen by the State and such appropriation of
seats would not 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 Con;;titution. He
referred to the observations of this Court in P.A. lnamdar & Ors.
B v. State of Maharashtra & Ors. [(2005) 6 SCC 537] in
paragraph 125 at page 601 that private eaucational institutions,
which intend to provide better professional education, cannot
be forced by the State to ma~:e admissions available on the
basis of reservation policy to less meritorious candidates and
c 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
0
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 private
E unaided educational institutions impart education and that the
State cannot take away the choice in matters of selection of
students for admission and clause (5) of Article 15 of the
Constitution insofar as it enables the State to take away this
choice for admission of students is violative of freedom of
F private educational institutions under Article 19(1 )(g) of the
Constitution.
8. Mr. Nariman next submitted that in Mohini Jain (Miss)
v. State of Kamataka & Ors. ((1992) 3 SCC 666], this Court
G has held that the "right to life" is a compendious expression with
all those rights which the Courts must enforce because they are
basic to the dignified enjoyment of life and that the dignity of
an individual cannot be assured unless it is accompanied by
the right to education. He submitted that under Article 51AG)
H
•
•
PRAMATI EDUCATIONAL & CULTURAL TRUST® v. 729
UNION OF INDIA [AK. PATNAIK, J.]
of the Constitution, it is a duty of every citizen of India to strive
A
towards excellence in all spheres of individual af!d collective
activity so that the nation constantly rises to higher levels of
endeavour and achievement. He argued that every citizen can
strive towards excellence through education by studying in
educational institutions of excellence. He submitted ihat clause
B
(5) of Article 15 of the Constitution in so far as it enables the
State to make special provisions relating to admission to
private educational institutions for socially and educationally
backward classes of citizens or for the Scheduled Castes and
the Scheduled Tribes will affect also this right under Article 21 c
read with Article 51AO) of the Constitution.
9. Mr. Nariman submitted that clause (5) of Article 15 of
the Constitution has been brought in by an amendment to
achieve the Directive Principles of State Policy in Part IV of the
Constitution as well as the goals of social and economic justice
D
set out in the Preamble of the Constitution, but the majority of
the Judges speaking through Chandrachud, CJ., have held in
Minerva Mills case (supra) that the goals set out in Part IV of
the Constitution have to be achieved without the abrogation of
the means provided for by Part Ill of the Constitution. He
E
submitted that in the aforesaid majority judgment in Minerva
Mills case (supra) authored by Chandrachud, CJ., it has also
been observed that Parts Ill and IV together constitute the core
of our Constitution and anything that destroys the balance
between the two parts will ipso facto destroy an essential
F
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.
G
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
H
730
SUPREME COURT REPORTS
[2014] 11 S.C.R.
A 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
B 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
C v. Union of India and Others [(2006) 8 SCC 212].
11. Mr. Dhavan submitted that in T.M.A. Pai Foundation
case (supra) the majority judgment has determined the content
of the right of a private educational institution under Article
19(1 )(g) of the Constitution and the content of this right
D comprises the (a) charity, (b) autonomy, (c) voluntariness, (d)
non-sharing of seats between the State Governments and the
private institutions, (e) co-optation and (f) reasonableness
principles. He submitted that clause (5) of_ Article 15 of the
Constitution inserted by Parliament by way of amendment,
E however, provides that nothing in Article 19(1 )(g) of the
Constitution shall prevent the State from making any special
provision, by law, for admission to private educational
institutions of persons belonging to socially and educationally
backward classes of citizens or for the Scheduled Castes or
F the Scheduled Tribes. He vehemently argued that by clause (5)
of Article 15 of the Constitution the power that is vested in the
State is such that it can destroy the essence of the right of
private educational institution under Article 19(1 )(g) of the
Constitution as determined by this Court in T.M.A. Pai
G Foundation case (supra) and therefore the constitutional
amendment inserting clause (5) in Article 15 of the Constitution
is destructive of the basic structure of the Constitution.
12. Mr. Anil B. Divan, learned senior counsel appearing
for the petitioners in W.P.(C) No.60 of 2014 and W.P.(C)
H
•
• PRAMATI EDUCATIONAL & CULTURAL TRUST® v. 731
UNION OF INDIA [AK. PATNAIK, J.]
No.160 of 2014 submitted that in the case of Edward A. Boyd
A
and George H. Boyd v. Unites States (1884) 116 U.S. 616
Bradley J., has observed that it will be the duty of the courts to
be watchful for the constitutional rights of the citizens and
against any stealthy encroachments into these rights. He
submitted that in Dwarkadas Shrinivas· v. The Sholapur B
Spining & Weaving Co. Ltd. and Others (AIR 1954 SC 119)
Mahajan J., has held that in dealing with constitutional matters
it is always well to bear in mind these observations of Bradley
J. He submitted that while deciding on validity of clause (5) of
Article 15 of the Constitution, we should bear in mind the c
aforesaid observations of Bradley J. He submitted that
Chandrachud, CJ. in Minerva Mills Ltd. & Ors. v. Union of India
& Ors. (supra) has referred to the observations of Brandies J.
that the need to protect liberty is the greatest when the
government purposes are beneficient particularly when political
0
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
E
socially and educationally backward classes of citizens ~nd 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
F
to minority educational institutions referred to in clause (1) of
Article 30 of the Constitution. He argued that there is absolutely
G
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
favourable treatment to the minority educational institutions and
is violative of the equality clause in Article 14 of the Constitution.
H
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SUPREME COURT REPORTS
[2014] 11 S.C.R.
A He relied on the decision of this Court in The Ahmedabad St.
Xavier's College Society and Another v. State of Gujarat and
Another [(1974) 1 SCC 717] to submit that the whole object of
conferring the right on the minority under Article 30 of the
Constitution is to ensure that there will be an equality between
B · the majority and the minority. He submitted that H.R. Khanna
J. in his judgment in the aforesaid case has clarified that the
idea of giving some special rights to the minorities is not to
have a kind of a privileged or pampered section of the
population but to give to the minorities a sense of security and
c a feeling of confidence. He submitted that Kirpal C.J. speaking
for majority in T.M.A.