# SOCIETY FOR UN-AIDED P.SCHOOL OF RAJASTHAN v. U.0.1. & ANR

- **Citation:** [2012] 2 S.C.R. 715
- **Court:** Supreme Court of India
- **Decided:** 2012-04-12
- **Bench:** S.H. Kapadia, K.S. Radhakrishnan, Swatanter Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/society-for-un-aided-p-school-of-rajasthan-v-u-0-1-anr-28060
- **Pages:** 141

## Headnote

B
Right of Children to Free and Compulsory Education Act,
2009 - ss. 3, 2(n)(iv), 12(1 )(b), 12(1 )(c), 18(3) and 35 -
C
Constitutional validity of the Act -
Held: The Act is
constitutionally valid - It is enacted in terms of Article 21A of
the Constitution which is child centric and not institution centric
- Object of the Act is to remove the barriers faced by the child
seeking admission to class 1 and not to restrict the freedom
D
under Article 19(1 )(g) - s. 12(1 )(c) is not violative of the right
of unaided non-minority schools provided under Article
19(1)(g) - The right under Article 19(1)(g) is not absolute but
subject to restriction under Article 19(6) - The restrictions
provided under s. 12(1 )(c) would amount to reasonable
E
restriction under Article 19(6) and cannot be termed as
unreasonable - s. 12(1)(c) is not violative of Article 14 as it
provides level playing field in the matter of right to education
to children - Sections 12(1 )(c) and 18(3) infringes the
fundamental freedom guaranteed to unaided minority schools
F
under Article 30(1) because the right under Article 30(1) is
absolute - The Act is constitutionally valid qua aided minority
and non-minority schools - The Act shall apply to (1) the
schools established owned and controlled by appropriate
Government or local authority (2) aided schools including
G
minority and non-minority (3) schools belonging to specified
category and (4) unaided non-minority schools - Applying the
principle of severability, the Act will not apply to the unaided
minority schools - Recommendation made to Government
715
H
716
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A to issue appropriate guidelines u/s. 35 clarifying whether the
Act is applicable to boarding schools and orphanages -
Constitution of India, 1950 - Articles 21A, 21, 45, 19(1)(g),
19(6), 14, 29 and 30(1) -Doctrines/Principles - Principle of
severability.
B
Interpretation of Constitution -
Interpretation of
Fundamental Rights - Fundamental rights need to be
interpreted in the light of directive principles -While
determining constitutional validity of a law, it is to be kept in
C mind that what is enjoined by Directive Principles, must be
upheld as a reasonable restriction under Article 19(2) to 19(6)
- Constitution of India, 1950 - Fundamental Rights and
Directive Principles of State Policy.
Right of Children to Free and Compulsory Education
D Act, 2009 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 the children of the age 6 to 14 years and
casts an obligation on the State to provide and ensure
E admission, attendance and completion of elementary
education in such a manner that the State may by law
determine.
The present writ petitions were filed questioning the
F constitutional validity of the Act and in particular validity
of ss. 3, 12 (1) (b) and 12 (1) (c) and some other related
provisions of the Act which cast obligation on all
elementary educational institutions to admit children of
the age 6 to 14 years from their neighbourhood, on the
G principle of social inclusiveness.
Disposing of the petitions, the Court
HELD:
H
SOCIETY FOR UN-AIDED P.SCHOOL OF
717
RAJASTHAN v. U.0.1.
Per Majority [BY S.H. KAPADIA, CJI. (FOR HIMSELF AND
A
SWATANTER KUMAR, J.]:
1. The Right of Children to Free and Compulsory
Education Act, 2009 is constitutionally valid and shall
apply to (i) a school established, owned or controlled by
8
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
C
unaided non-minority school not receiving any kind of
aid or grants to meet its expenses from the appropriate
Government or the local authority. However, the Act and
in particular Sections 12(1)(c) and 18(3) inf

## Text

_Characters 0–39,996 of 283,391. This is a partial read: ask again with offset=39996 for what follows._

[2012] 2 S.C.R. 715
SOCIETY FOR UN-AIDED P.SCHOOL OF RAJASTHAN
A
v.
U.0.1. & ANR.
(Writ Petition (Civil) No. 95 of 2010)
APRIL 12, 2012
[S.H. KAPADIA, CJI., K.S. RADHAKRISHNAN AND
SWATANTER KUMAR JJ.]
B
Right of Children to Free and Compulsory Education Act,
2009 - ss. 3, 2(n)(iv), 12(1 )(b), 12(1 )(c), 18(3) and 35 -
C
Constitutional validity of the Act -
Held: The Act is
constitutionally valid - It is enacted in terms of Article 21A of
the Constitution which is child centric and not institution centric
- Object of the Act is to remove the barriers faced by the child
seeking admission to class 1 and not to restrict the freedom
D
under Article 19(1 )(g) - s. 12(1 )(c) is not violative of the right
of unaided non-minority schools provided under Article
19(1)(g) - The right under Article 19(1)(g) is not absolute but
subject to restriction under Article 19(6) - The restrictions
provided under s. 12(1 )(c) would amount to reasonable
E
restriction under Article 19(6) and cannot be termed as
unreasonable - s. 12(1)(c) is not violative of Article 14 as it
provides level playing field in the matter of right to education
to children - Sections 12(1 )(c) and 18(3) infringes the
fundamental freedom guaranteed to unaided minority schools
F
under Article 30(1) because the right under Article 30(1) is
absolute - The Act is constitutionally valid qua aided minority
and non-minority schools - The Act shall apply to (1) the
schools established owned and controlled by appropriate
Government or local authority (2) aided schools including
G
minority and non-minority (3) schools belonging to specified
category and (4) unaided non-minority schools - Applying the
principle of severability, the Act will not apply to the unaided
minority schools - Recommendation made to Government
715
H
716
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A to issue appropriate guidelines u/s. 35 clarifying whether the
Act is applicable to boarding schools and orphanages -
Constitution of India, 1950 - Articles 21A, 21, 45, 19(1)(g),
19(6), 14, 29 and 30(1) -Doctrines/Principles - Principle of
severability.
B
Interpretation of Constitution -
Interpretation of
Fundamental Rights - Fundamental rights need to be
interpreted in the light of directive principles -While
determining constitutional validity of a law, it is to be kept in
C mind that what is enjoined by Directive Principles, must be
upheld as a reasonable restriction under Article 19(2) to 19(6)
- Constitution of India, 1950 - Fundamental Rights and
Directive Principles of State Policy.
Right of Children to Free and Compulsory Education
D Act, 2009 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 the children of the age 6 to 14 years and
casts an obligation on the State to provide and ensure
E admission, attendance and completion of elementary
education in such a manner that the State may by law
determine.
The present writ petitions were filed questioning the
F constitutional validity of the Act and in particular validity
of ss. 3, 12 (1) (b) and 12 (1) (c) and some other related
provisions of the Act which cast obligation on all
elementary educational institutions to admit children of
the age 6 to 14 years from their neighbourhood, on the
G principle of social inclusiveness.
Disposing of the petitions, the Court
HELD:
H
SOCIETY FOR UN-AIDED P.SCHOOL OF
717
RAJASTHAN v. U.0.1.
Per Majority [BY S.H. KAPADIA, CJI. (FOR HIMSELF AND
A
SWATANTER KUMAR, J.]:
1. The Right of Children to Free and Compulsory
Education Act, 2009 is constitutionally valid and shall
apply to (i) a school established, owned or controlled by
8
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
C
unaided non-minority school not receiving any kind of
aid or grants to meet its expenses from the appropriate
Government or the local authority. However, the Act and
in particular Sections 12(1)(c) and 18(3) infringes the
fundamental freedom guaranteed to unaided minority 0
schools under Article 30(1) and, consequently, applying
the principle of severability, the Act shall not apply to such
schools. (Para 20] (854-G-H; 855-A-D]
2. There is a power in the Act coupled with the duty
of the State to ensure that only such Government funded
E
schools, who fulfill the norms and standards, are allowed
to continue with the object of providing free and
compulsory education to the children in the
neighbourhood school. [Para 8] [837-D]
F
3.1. While determining that whether a law
transgresses any constitutional limitation, the first and
foremost principle which has to be kept in mind is that
what is enjoined by the directive principles (in this case
Articles 41, 45 and 46) must be upheld as a "reasonable G
restriction" under Articles 19(2) to 19(6). Thus, the
fundamental rights needs to be interpreted in the light of
the directive principles. [Para 9] [837-H; 838-A-B]
3.2. Fundamental rights have two aspects - they act
H
718
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A as fetter on plenary legislative powers and, secondly,
they provide conditions for fuller development of the
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
B 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
c Article 21 by the judgments of Supreme 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
o given to the State to provide by law "free and compulsory
education". Article 21A contemplates making of a law by
the State. [Para 9) [838-H; 839-A-D]
3.3. Thus, Article 21A contemplates right to education '
E flowing from the law to be made which is the Act, which
is child centric .and not institution centric. Thus, 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
F manner in which this obligation will be discharged by the
State has been left to the State to determine by law. The
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. If
G education is an activity which is charitable, the unaided
non-minority educational institution cannot say that the
intake of 25% children belonging to weaker section and
disadvantaged group only in class I as provided for in
Section 12(1 )(c) would constitute violation of Article
H 19(1)(g). [Para 9) [839-D-H]
SOCIETY FOR UN-AIDED P.SCHOOL.OF
719
RAJASTHAN v. U.0.1.
3.4. Though subject-wise, Article 21A deals with
A
access to education as against right to establish and
administer educational institution in Article 19(1)(g), it
cannot be said 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 B
reasonableness. [Para 1 O] (840-8-C]
3.5. All other fundamental rights in Part Ill would be
dependent upon right to life in Article 21 as interpreted
by Supreme Court to include right to live witt. dignity, c
right to education, etc. 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
D
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 Act, one has to judge the validity of the
E
said Act in the light of the principle of reasonableness in
Article 19(6), particularly, when in *T.M.A. Pai Foundation
and in **P.A. lnamdar, it has been held that right to
establish and administer an educational institution falls
under Article 19(1)(g) of the Constitution. [Para 10] (840F
0-H]
Khudiram Das v. State of West Bengal (1975) 2 SCR
832; Maneka Gandhi v. Union of India (1978) 1 SCC 248 :
1978 (2) SCR 621; Glanrock Estate Private Limited v. State
of Tamil Nadu (2010) 10 SCC 96: 2010 (12) SCR 597;
G
*T.M.A. Pai Foundation and Ors. v. State of Kamataka and
Ors. (2002) 8 sec 481 : 2002 (3) Suppl. SCR 587; **P.A.
lnamdar v. State of Maharashtra (2005) 6 SCC 537 : 2005
(2) Suppl. SCR 603- referred to.
H
720
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A
3.6. It is true that, as held in TM.A. Pai Foundation as
well as P.A. lnamdar, the right to establish and administer
an educational institution is a fundamental right, as long
as the activity remains charitable under Article 19(1)(g),
however, in the said two decisions the correlation
B between Articles 21 and 21A, on the one hand, and Article
19(1 )(g), on the other, was not under consideration.
Further, the content of Article 21A flows from Article 45
(as it then stood). The Act has been enacted to give effect
to Article 21A. Since Article 19(1)(g) right is not an
C absolute right as Article 30(1 ), the 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
D transgress any constitutional limitation. The object of the
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). [Para 10] [841-D-H]
E
3.7. 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
F regulate by law the activities of the private institutions by
imposing reasonable restrictions under Article 19(6). After
the commencement of the Act, by virtue of Section 12(1)(c)
r/w. s. 2(n)(iv), the State, while granting recognition to the
private unaided. non-minority school, may specify
permissible percentage of the seats to be earmarked for
G children who may not be in a position to pay their fees
or charges. Such a condition in Section 12(1)(c) imposed
while granting recognition to the private unaided nonminority school cannot be termed as unreasonable. Such
H a condition would come within the principle of
SOCIETY FOR UN-AIDED P.SCHOOL OF
721
RAJASTHAN v. U.0.1.
reasonableness in Article 19(6). By virtue of Section 12(2)
A
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
B
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. Such measures address
two aspects, viz., upholding the fundamental right of the
C
private management to establish an unaided educational
institution of their choice and, at the same time, securing
the interests of the children in the locality, in particular,
those who may not be able to pursue education due to
inability to pay fees or charges of the private un;.tided
D
schools. [Para 10] [843-C-H; 844-A-E]
F
4. It is also not correct to say that Section 12(1)(c)
violates Article 14. Section 12(1)(c) inter alia provides for
admission to class I, to the extent of 25% of the strength
E
of the class, of the children belonging to weaker section
and disadvantaged group in the neighbourhood and
provide free and compulsory elementary education to
them till its completion .. The empha'sis 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 ievel playing field in the matter of right to
education to children who are prevented from accessing
G
education because they do not have the means or their
parents do not have the means to pay for their _fees.
Hence, Section 12(1 )(c) also satisfies the test of
reasonableness, apart from the test of classification in
Article 14. [Para 10) [844-E-H; 845-A-B]
722
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A
5. It is true that the judgments in *TMA Pai
Foundation and **P.A. lnamdar_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 Act constituted a
B restriction on that right and if so whether that restriction
was a reasonable restriction under Article 19(6) was not
in issue in those cases. 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
c **P.A. lnamdar was almost a sequel to the directions in
##Islamic Academy 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
o a different weightage than the one which is to be given
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
E admission not to higher education or professional
courses but to Class I. On reading *T.M.A. Pai_Foundation
and **P.A. lnamdar in proper perspective, it becomes
clear that the said principles have been applied in the
context of professional/ higher education where merit
F and excellence have to be given due weightage and
which tests do not apply in cases where a child seeks
admission to class I and when the impugned Section
12(1)(c) seeks to remove the financial obstacle. Thus, if
one reads the Act including Section 12(1)(c) in its
G application to unaided non-minority school(s), the same
is saved as reasonable restriction under Article 19(6).
'[Paras 11 and 12) [846-D-H; 851-D-F]
*T.M.A. Pai Foundation and Ors. v. State of Kamataka
H and Ors. (2002) 8 sec 481 : 2002 (3) Suppl. SCR 587; **P.A.
SOCIETY FOR UN-AIDED P.SCHOOL OF
723
RAJASTHAN v. U.0.1.
lnamdar v. State of Maharashtra (2005) 6 SCC 537 : 2005
A
(2) Suppl. SCR 603 - distinguished.
#Unni Krishnan, J.P. v. State of Andhra Pradesh (1993)
1 SCC 645 :1993 (1) SCR 594; ##Islamic Academy of
Education v. State ofKamataka (2003) 6 SCC 697 : 2003 (2)
B
Suppl. SCR 474 - referred to.
6.1. The intention of the Parliament as is evident from
Constitution (Ninety-Third) Amendment Act, 2005
whereby Article 15 was amended is that the minority
educational institution referred to in Article 30(1) is a C
separate category of institutions which needs protection
of Article 30(1) and viewed in that light, the unaided
minority school(s) needs special protection under Article
30(1). Article 30(1) is not conditional as Article 19{1)(g). In
D
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
E
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 Act including Section 12(1)(c) violates
F
the right conferred on such unaided minority schools
under Article 30(1). [Para 19] [854-A-D]
6.2. However, so far as aided minority schools are
concerned, Article 29(2) has to be kept in mind. Article G
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
H
724
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A maintained or aided by the State. The 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, it is held that the
Act is constitutionally valid qua aided minority schools.
B [Para 19] [854-D-F]
7. There are boarding schools and orphanages in
several parts of India. In those institutions, there are day
scholars and boarders. The Act could only apply to day
c scholars. It cannot be extended to boarders. To put the
matter beyond doubt, it is recommended that appropriate
guidelines be issued under Section 35 of the Act
clarifying the above position. [Para 13] [851-G-H]
Rev. Sidhajbhai Sabhai v. State of Bombay (1963) SCR
D 837 - relied on.
State of Bihar v. Maharajadhiraja Sir Kameshwar Singh
of
Darbhanga (1952) SCR 889 - referred to.
E
Dennis v. United States (1950) 341 US 494; R. v. Burah
(1878) 5 I.A. 178 - referred to.
P~r Minority (BY K.S. RADHAKRISHNAN, J.)
1.1. Article 21A of the Constitution casts an obligation
F on the State to provide free and compulsory education
to children of the age of 6 to 14 years and not on unaided
non-minority and minority educational institutions. [Para
148 (1)] [828-G; 829-A]
G
1.2. Rights of children to free and compulsory
education guaranteed under Article 21A and Right of
Children to Free and Compulsory Education Act, 2009
can be enforced against the schools defined under
Section 2(n) of the Act, except unaided minority. and nonH minority schools not receiving any kind of aid or grants
SOCIETY FOR UN-AIDED P.SCHOOL OF
725
RAJASTHAN v. U.0.1.
to meet their expenses from the appropriate A
Governments or local authorities. [Para 148 (2)) [829-B]
1.3. Section 12(1)(c) is read down so far as unaided
non-minority and minority educational institutions are
concerned, holding that it can be given effect to only on 8
the principles of voluntariness, autonomy and consensus
and not on compulsion or threat of non-recognition or
non-affiliation. [Para 148 (3)) [829-D]
1.4. No distinction or difference can be drawn
between unaided minority and non-minority schools with C
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 D
within the meaning of Article 19(6) of the Constitution.
[Para 148 (4)] [829-E-F]
1.5. The Appropriate Government and local authority
have to establish neighbourhood schools as provided in E
Section 6 read with Sections 8 and 9, within the time limit
prescribed in the statute. [Para 148 (5)] [829-G]
1.6. In the jurisdictions where socio-economic rights
have been given the status of constitutional rights, those F
rights are available only against State and not again~t
private state actors, like the private schools, private
hospitals etc., unless they get aid, grant or other
concession from the State. Equally important principle is
that in enjoyment of those socio-economic rights, the G
beneficiaries should not make an inroad into the rights
guaranteed to other citizens. [Para 57] [781-G-H; 782-A]
1.7. Articles 21A, 45, 51A(k) of the Constitution and
Section 12 of the Act and various International
Conventions
deal
with
the
obUg_ations
and H
726
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A responsibilities of State and non-state actors for
realization of 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,
B 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
c functions. [Para 89] [796-H; 797-A-C]
1.8. Article 29 of the Constitution and other
provisions of International Conventions indicate that the
rights have been guaranteed to the children and those
0
rights carry corresponding State obligations to respect,
protect and fulfill the realization of children's rights. The
obligation to protect implies the horizontal right which
casts an obligation on the State to see that it is not
violated by non-state actors. For non-state actors to
E respect children's rights cast a negative duty of nonviolation to protect children's rights and a positive duty
on them to prevent the violation of children's rights by
others, and also to fulfill children's rights and take
measures for progressive improvement. [Para 93] [799F H; 800-A-C]
1.9. Primary responsibility for children's rights lies
with the State and the State has to respect, protect and
fulfill children's rights and has also got a duty to regulate
the private institutions that care for children, to protect
G 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,
educational institutions are also expected to respect and
H protect the rights of the child, but they are, not expected
SOCIETY FOR UN-AIDED P.SCHOOL OF
727
RAJASTHAN v. U.0.1.
to surrender their rights constitutionally guaranteed.
A
[Para 95] [800-H; 801-A-B]
1.10. 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
B
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. [Para 96] [801-C-D]
c
1.11. 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
D
that constitutional obligation or responsibility is on
private unaided educational institutions also would be
doing violence to the language of that expression. The
obligation of the State to provide free and compulsory
education is without any limitation. Parliament in its
E
wisdom has not used the expression "provide for". If the
preposition "for" has been used then the duty of the
State would be only to provide education to those who
require it but to provide for education or rather to see that
it is provided. [Para 101] [803-A-D]
F
1.12. Article 21A has used the expression "such
manner" wshich means the manner in which the State
has to discharge its constitutional obligation and not
offloading those obligations on unaided educational G
institutions. If the Constitution wanted that obligation to
be shared by·private unaided educational institutions the
same would have been made explicit irt Article 21A.
Further, unamended Article 45 has used the expression
"state shall endeavour ..... for" and when Article 21A was
H
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[2012) 2 S.C.R.
A inserted, the expression used therein was that the "State
shall provide" and not "provide for" the duty, which was
directory earlier made mandatory so far as State is
concerned. Article 21 read with 21A, therefore, cast an
obligation on the State and.State alone. [Para 102] [803·
B G-H; 804-A] .
1.13. The purpose and object of the Act is laudable,
that is, social inclusiveness in the fiel~ of elementary
education but the means adopted to achieve that
c objective is faulty and constitutionally impermissible.
Possibly, the object and purpose of the Act could be
achieved by limiting or curtailing the fundamental rights
guaranteed to the unaided non-minority and minority
educational institutions under Article 19(1)(g) and Article
0 30(1) or imposing a positive obligation on them under
Article 21A, but this has not been done in the instant
case. [Para 106] [805-D-E]
1.14. Going by the ratio laid down by *Pai Foundation
and **lnamdar, to compel the unaided non minority and
E minority private educational institutions, to admit 25% of
the students on the fee structure determined by the State,
is nothing but an invasion as well as appropriation of the
rights guaranteed to them under Article 19(1)(g) and
Article 30(1) of the Constitution. Legislature cannot under
F 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
G 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. [Para 111] [809-H; 810-A-C]
H
1.15. Right to establish and administer and run a
SOCIETY FOR UN-AIDED P.SCHOOL OF
729
RAJASTHAN v. U.0.1.
private unaided educational institution is the very A
openness of personal freedom and opportunity which is
constitutionally protected, which right cannot be robbed
or coerced against his will at the threat of nonrecognition or non-affiliation. Right to establish a private
unaided educational institution and to make reasonable
B
profit is recognized by Article 19(1)(g) so as to achieve
economic security and stability even if it is for charity.
Rights protected under Article 19(1)(g) are fundamental
in nature, inherent and are sacred and valuable rights of
citizens which can be abridged only to the extent that is C
necessary to ensure public peace, health, morality etc.
and to the extent of the constitutional limitation provided
in that Article. Reimbursement of fees at the Government
rate is not an answer when the unaided private
educational institutions have no constitutional obligation
D
and their Constitutional rights are invaded. [Para 113]
[810-H; 811-A-D]
1.16. Considerable money by way of capital
investment and overhead expenses would go into for E
establishing and maintaining a good quality unaided
educational institution. Section 12(1)(c) would amount to
appropriation of one's labour and makes an inroad into
F
the autonomy of the institution. Unaided educational
institutions, over a period of time, might have established
their own reputation and goodwill, a quantifiable asset.
Nobody can be allowed to rob that without their
permission, not even the State. Section 12(1)(c) is not a
restriction which falls under Article 19(6) but cast a
burden on private unaided educational institutions to G
admit and teach children at the State dictate, on a fee
structure determined by the State which would abridge
and destroy the freedom guaranteed to them under
· Article 19(1)(g) of the Constitution. [Para 114] [811-E-H]
1.17. Parliament can enact a social legislation to give
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[2012] 2 S.C.R.
A effect to the Directive Principles of the State Policy, but
so far as the present case is concerned, neither the
Directive Principles of the State Policy nor Article 21A
cast any duty or obligation on the unaided private
educational institutions to provide free and compulsory
B education to children of the age of 6 to 14. Section
12(1)(c) has, therefore, no foundation either on the
Directive Principles of the State Policy or Article 21A of
the Constitution, so as to rope in unaided educational
institutions. Directive Principles of the State Policy as well
c as Article 21A cast the constitutional obligation· on the
State and State alone. State, cannot offload or outsource
that Constitutional obligation to the private unaided
educational institutions and the same can be done only
by a constitutional provision and not by an ordinary
D legislation. Section 12(1)(c) has neither the constitutional
support of Article 21A, nor the support of Articles 41, 45·
or 46, since those provisions cast duty only on the State
and State alone. [Paras 115 and 116] [812-A-E]
. E
1.18. The Statute enacted to protect socio-economic
rights is always subject to the rights guaranteed to other
non-State actors under Articles 19(1)(g}, 30(1), 15(1), 16(1)
· etc. Parliament has faced many obstacles in fully realizing
the socio-economic rights enshrined in Part IV of the
F Constitution and the Fundamental Rights guaranteed to
other citizens were often found to be the obstacles.
Parliament has on several occasions imposed limitations
on the enjoyment of the rights guaranteed under Part Ill
of the'Constitution, through constitutional amendments.
G [Para 58] [782-B-D]
1.19. The State in order to achieve socio-economic
rights, can remove obstacles by limiting the fundamental
rights through constitutional amendments. Whenever the
Parliament wanted to remove obstacles so as to make
H affirmative action to achieve socio-economic justice
SOCIETY FOR UN-AIDED P.SCHOOL OF
731
RAJASTHAN v. U.0.1.
constitutionally valid, the same has been done by A
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
B
Article 30(1) as explained in *Pai Foundation and
reiterated in **/namdar 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
C
constitutional amendment [Paras 71 and 81] (788-B; 792F-H; 793-A]
1.20. Constitutional principles laid down by *Pai
Foundation and **/namdar on Articles 19(1)(g), 29(2) and
0
30(1) so far as unaided private educational institutions are
concerned, whether minority or non-minority, cannot be
overlooked and Article 21A, Sections 12(1)(a), (b) and
12(1)(c) have to be tested in the light of those
constitutional principles laid down by *Pai Foundation and
E
**lnamdar because ***Unnikrishnan was the basis for the
introduction of the proposed Article 21A and the deletion
· of clause (3) from that Article. Interpretation given by the
courts on any provision of the Constitution gets inbuilt
in the provisions interpreted, that is, Articles 19(1)(g), 29(2)
and 30. [Para 82] [794-B-C]
F
1.21. The principles laid down in judgments in *Pai
Foundation and **/namdar still hold good and are not
whittled down by Article 21A, nor any constitutional
amendment was effected to Article 19(1)(g) or Article 30(1).
G
Article 21Awas inserted in the Constitution on 12.12.2002
and the judgment in *Pai Foundation was delivered by this
Court on 31.10.2002 and 25.11.2002. Parliament is
presumed to be aware of the law declared by the
Constitutional Court, especially on the rights of the
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732
SUPREME COURT REPORTS
[2012) 2 S.C.R.
·A unaided non-minority and minority educational
institutions, and in its wisdom thought if fit not to cast any
burden on them under Article 21A, but only on the State.
!
[Para 83] [794-D-F]
i
8
1.22. Principles laid down by *Pai Foundation and in
**tnamdar while interpreting Articles 19(1)(g), 29(2) and
30(1) in respect of unaided non-minority and minority
educational institutions like schools upto the level of
under-graduation are all weighty and binding
C constitutional principles which cannot be undone by
statutory provisions like Section 12(1)(c), since those
principles get in-built in Article 19(1)(g), Article 29(2) and
Article 30(1) of the Constitution. Further, Parliament, while
enacting Article 21A, never thought it fit to undo those
0 principles and thought it fit to cast the burden on the
State. [Para 88] [796-B-F]
1.23. Section 12(1)(c) seeks to achieve what cannot
be achieved directly especially after the interpretation
placed by *Pai Foundation and **tnamdar on Article
E 19(1)(g) and Article 30(1) of the Constitution. */namdar has
clearly held that right to set up, and administer a private
unaided educational institution is an unfettered right, but
12(1)(c) impose fetters on that right which is
constitutionally impermissible going by the principles .laid
F down by *Pai Foundation and **tnamdar. Section 12(1)(c)
can be given effect to, only on the basis of principles of
voluntariness and consensus laid down in *Pai
Foudnation and **/namdar or else, it may violate the rights
guaranteed to unaided minority and non-minority
G institutions. [Para 117] [812-H; 813-A-B]
1~24. Constitution of India has expressly conferred
the power of judicial review on courts and the legislature
cannot disobey the constitutional mandate or the
H constitutional principle laid down by courts under the
SOCIETY FOR UN-AIDED P.SCHOOL OF
733
RAJASTHAN v. U.0.1.
guise of social inclusiveness. Smaller inroad like Section
A
12(1)(c) may lead to larger inroad, ultimately resulting in
total prohibition of the rights guaranteed under Articles
19(1)(g), 29(2) and 30(1) as interpreted by the *Pai
Foundation and **/namdar, Court, in such situations, owe
a duty to lift the veil of the form and appearance to
B
discover the true character and nature of the legislation
and if it has the effect of bypassing or jgnoring the
constitutional principles laid down by the Constitutional
Courts and violate fundamental rights, the same has to
be nullified. [Para 118] [813-C-E]
c
1.25. 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
0
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 unconstitutionat Section
12(1 )(c), if upheld would resurrect ***Unni Krishnan
scheme which was nullified by *Pai Foundation and
E
**/namdar. [Para 119] [813-F-H; 814-A]
1.26. So far as unaided educational institutions both
minority and non-minority are concerned, the obligation
cast under Section 12(1)(c) is only directory and the said
provision is accordingly read down holding that it is open
F
to the private unaided educational institutions, both
minority and non-minority, at their volition to admit
children who belong to the weaker sections and
disadvantaged group in the neighbourhood in their
educational institutions as well as in pre-schools. [Para
G
120] [814-B-C]
1.27. Not only Section 12(1)(c), but rest of the
provisions in the Act are only directory so far as private
unaided institutions are concerned, but they are bound
H
734
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A by the declaration of law by *Pai Foundation and
**/namdar, like there shall be no profiteering, no
maladministration, no demand for capitation fee and so
on and they have to follow the general laws of the land
like taxation, public safety, sanitation, morality, social
B welfare etc. [Para 128] [818-C-D]
1.28. 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
C 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
0 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. [Para 103] [804-D-F]
E
*T.M.A. Pai Foundation and Ors. v. State of Kamataka
and Ors. (2002) 8 SCC 481: 2002 (3) Suppl. SCR 587; **P.A.
lnamdar andOrs. v. State of Maharashtra and Ors. (2005) 5SCC 537: 2005 (2) Suppl. SCR 603 - followed
F
Ashok Kumar Thakur v. Union of India and Ors. (2008)
6 SCC 1: 2008 (4) SCR 1; S.P. Gupta v. President of India
and Ors. 1981 sec Supp. (1) 87 - relied on.
Indian Medical Association v. Union of India and Ors.
(2011) 7 SCC 179; Ahmedabad St. Xavier's College Society
G and Anr. v. Stateof Gujarat and Anr. (1974) 1 sec 717: 1975
(1) SCR 173; Rev. Sidhajbhai Sabhai and Ors. v. State of
Bombay and Anr. (1963) 3 SCR 837; People's Union for
Democratic Rights and Ors. v. Union of India and Ors. (1982)
3 SCC 235: 1983 (1) SCR 456; Vishaka and Ors. v. State
H
. ··,
SOCIETY FOR UN-AIDED P.SCHOOL OF
735
RAJASTHAN V. U.0.1.
ofRajasthan (1997) 6 SCC 241: 1997 (3) Suppl. SCR 404;
A
Consumer Education and· Research Centre and Ors. v. Union
of India and Ors. 1995 (3) SCC 42 : 1995 (1) SCR 626;
Paschim Bahga Khet Majdoor Samity and Ors. v. State of
WestBengal and Anr. 1996 (4) SCC 37 : 1996 (2) Suppl.
SCR 331; Stateof Punjab and Ors. v. Ram Lubhaya Bagga
B
and Ors. 1998 (4) SCC 117: 1998 (1) SCR 1120; Social
Jurist, A Lawyers Group v. Government of NCT of Delhi and
Ors. (140) 2007 DLT 698; Dharamshila Hospital and
Research Centre v. Social Jurist and Ors. Judgment of
Supreme Court in SLP (C) No.18599 of 2007 decided on
C
25.07 .2011; Olga Tellis and Ors. v. Bombay Municipal
Corporation and Ors. 1985 (3) SCC 545 : 1985 (2) Suppl.
SCR 51; Municipal Corporation of Delhi v. Gurnam Kaur
(1989) 1 SCC 101 : 1988 (2) Suppl. SCR 929; Sodan Singh
and Ors. v. New Delhi Municipal Committee and Ors. 1989
D
(4) SCC 155 : 1989 (3) SCR 1038; Ahmedabad Municipal
Corporation v. Nawab Khan Guiab Khan and Ors. 1997 (11)
· SCC 121 : 1996 (7) Suppl. SCR 548; Bandhua Mukti
Morcha v. Union of India and Ors. 1984 (3) SCC161: 1984
(2) SCR 67; l.R. Coelho (Dead) by LRs v. State of Tamil
E
Nadu and Ors. 2007 (2) SCC 1 : 2007 (1) SCR 706; State
of Madras v. Shrimati Champakam Dorairajan 1951 (2) SCR
525; Indra Sawhney v. Union of India aQd Ors. (1992) Supp.
3 SCC 212; Jagdish Lal and Ors. v. State of Haryana and
Ors. (1997) 6 SCC 538; Ajit Singh and Ors. v. State of Punjab
F
and Ors. (1999) 7 sec 209: 1999 (2) Suppl. SCR 521; M.
Nagaraj and Ors. v. Union of India (2006) 8 SCC 212: 2006
(7) Suppl. SCR 336; Bengal Immunity Company Limited v.
State of Bihar and Ors. AIR 1955 SC 661: 1955 SCR 603;
People's Union for Civil Liberties (PUCL) and Anr. v. Union
G
of India (UOI) and Anr. 2003 (4) sec 399: 2003 (2)
SCR 1136; Avinash Mehrotra v. Union of India and Ors.
2009 (6) SCC 398: 2009 (5) SCR 913 - referred to.
Soobramoney v. Minister of Health (KwaZulu-NataQ 1998
H
736
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A (1) SA 765(CC); Government of the Republic of South Africa
and Ors. v. Grootboom and Ors. 2001 (1) SA 46 (CC);
Minister of Health and Ors. v. Treatment Action Campaign
and Ors. (TAC) 2002 (5) SA 721 (CC); Ex parte Chairperson
of the Constitution of the Republic of South Africa 1996 (4)
B SA 744 (CC); Minister of Public Works and Ors. v. Kyalami
Ridge Environmental Association and Ors.