As per case facts, the constitutional validity of Article 15(5), inserted by the 93rd Amendment Act, 2005, and Article 21A, inserted by the 86th Amendment Act, 2002, was challenged by ...
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-child
expenditure 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 three-
F 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 eleven
Judge
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
726 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
728 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
732 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. Pai Foundation (supra) has
similarly held
that the essence of Article 30(1) of the Constitution is to ensure
equal treatment between the majority and the minority
institutions that laws of the land must apply equally to majority
0
institutions as well as to minority institutions and minority
institutions
must be
allowed to do what the non-minority
institutions are permitted to do.
Mr. Divan submitted that
clause
(5) of Article 15 of the Constitution insofar as it excludes
minority institutions referred to in Article 30(1) of the Constitution
is also violative of secularism which is a basic feature of the
E Constitution. He referred to the judgment
in Dr. M. Ismail
Faruqui and
Others v. Union of India and Others [(1994) 6 SCC
360] in which this Court has held that the concept of secularism
is one facet of right to equality woven as the central golden
thread in the fabric depicting the pattern of the scheme in our
F Constitution.
Contentions of
learned counsel for the Union of India:
14. Mr. Mohan Parasaran, learned Solic_itor General,
G submitted that this Court has held in Ashoka Kumar Thakur v.
Union of India (supra) that clause (5) of Article 15 of the
Constitution is only an enabling provision empowering the State
to make a special provision, by law, for the advancement of
socially and educationally backward classes of citizens or for
H
•
•
PRAMATI EDUCATIONAL & CULTURAL TRUST® v. 733
UNION OF INDIA [A.K. PATNAIK, J.]
the Scheduled Castes and the Scheduled Tribes insofar as such A
special provisions relate to their admission to educational
institutions including private educational institutions. He
submitted that it will be clear from paragraphs 53 and 68 of the
judgment
of the
eleven Judge Bench of this Court in T.M.A. Pai
Foundation
(supra) that reserving a
small percentage of seats B
. in private educational institutions, aided or unaided, for weaker,
poorer and backward sections
of society did not in any way
affect the right
of private
educational institutions under Article
19(1)(g) of the Constitution. He argued that after the judgment
of this Court in T.M.A. Pai Foundation (supra) a five-Judge C
Bench of this Court in Islamic Academy of Education & Anr.
v. State of Kamataka & Ors. [(2003) 6 SCC 697 was of the
view that as per the judgment
in T.M.A. Pai Foundation (supra)
in case of non-minority
professional colleges a percentage of
seats could be reserved by the Government for poorer and
backward sections.
He submitted that this view taken by the D
five-Judge Bench of this Court in Islamic Academy of
Education & Anr. v.
State of Karnataka & Ors. (supra),
however, did not find favour with a seven-Judge Bench
of this
Court
in P.A. inamdar (supra) which
held that there is nothing
E
in the judgment of this Court in T. M.A. Pai Foundation (supra)
allowing the State to regulate or control admissions in the
unaided professional educational institutions so as to compel
them to give up a share of the available seats to the candidates
chosen by the State or for enforcing the reservation policy of
the State. He submitted that, therefore, Parliament introduced
clause (5) in Article 15 of the Constitution by the Constitution
(Ninety-Third Amendment) Act, 2005 providing that the State
may make a special provision, by law, for the advancement of
socially and educationally backward classes of citizens or for
F
the Scheduled Castes and the Scheduled Tribes insofar as such G
special provisions relate to their admission to educational
institutions including private educational institutions, whether
aided
or unaided by the
State. He vehemently argued that
clause (5) of Article 15 introduced by the constitutional
amendment is consistent with the right to establish and
H
734
SUPREME COURT REPORTS [2014] 11 S.C.R.
A administer the private educational institutions under Article
19(1 )(g) of the Constitution as interpreted by T.M.A. Pai
Foundation
(supra) and, therefore, does not
violate the right
under Article 19(1 )(g) of the Constitution.
15. Mr. Parasaran next submitted that minority institutions
B referred to
in
Article 30 of the Constitution have been excluded
from the purview of clause (5) of Article 15 of the Constitution
because the Constitution has given a special status to minority
institutions. He submitted that
in the case of Ashoka Kumar
Thakur
v. Union of India (supra), this Court has
held that
C exclusion of minority educational institutions from clause (5) of
Article 15 of the Constitution is not violative of Article 14 of the
Constitution as the minority educational institutions, by
themselves, are a separate class and their rights are protected
by
other
constitutional provisions. He submitted that the
D argument that clause (5) of Article 15 of the Constitution is
violative of equality clause in Article 14 of the Constitution is
therefore misconceived.
Opinion of the Court on the validity of clause (5) of Article
E 15 of the Constitution:
16. We have considered the submissions of learned
counsel for the parties and we find that the object of clause (5)
of Article 15 is to enable the State to give equal opportunity to
socially and educationally backward classes of citizens or to
F the Scheduled Castes and the Scheduled Tribes to study in all
educational institutions other than minority educational
institutions referred in clause (1) of Article 30 of the Constitution.
This will be clear from the Statement of Objects and Reasons
of the Bill, which after enactment became the Constitution
G (Ninety-Third Amendment) Act, 2005 extracted hereinbelow:
H
"Greater access to higher education including professional
education to a larger number of students belonging to the
socially and educationally backward classes of citizens or
•
•
PRAMATI EDUCATIONAL & CULTURAL TRUST® v. 735
UNION OF INDIA [A.K. PATNAIK, J.]
for the Scheduled Castes and Scheduled Tribes has been A
a matter of major concern. At present, the number
of seats available in aided or State maintained institutions,
particularly in respect of professional education, is limited
in comparison to those in private unaided institutions.
2. It is laid down in article 46, as a directive principle of
State policy, that the State shall promote with special care
B
the educational and economic interests of the weaker
sections
of the
people and protect them from social
injustice. To promote the educational advancement of the C
socially and educationally backward classes of citizens or
of the Scheduled Castes and Scheduled Tribes in matters
of admission of students belonging to these categories in
unaided educational institutions. other than the minority
educational institutions referred to in clause (1 l of article
30 of the Constitution. it is proposed to amplify article 15. D
3. The Bill seeks to achieve the above objects."
Clause (1) of Article 15 of the Constitution provides that the
State shall not discriminate against any citizen on grounds only E
of religion, race, caste, sex, place of birth or any of them and
clause (2) of Article 15 of the Constitution provides that no
citizen shall, on grounds of religion, race, caste, sex, place of
birth or any of them, be subject to any disability, liability,
restriction or condition with regard to (a) access to shops, public
restaurants, hotels and places of public entertainment; or (b)
F
the use of wells, tanks, bathing ghats, roads and places of
public resort maintained wholly or partly out of State funds or
dedicated to the use of general public. These provisions were
made to ensure that every citizen irrespective of his religion,
race, caste, sex, place of birth or any of them, is given the equal G
treatment by the State and he has equal access to public
places. Despite these provisions in Article 15 of the
Constitution as originally adopted, some classes of citizens,
Scheduled Castes and Scheduled Tribes have remained
H
736. SUPREME COURT REPORTS (2014] 11 S.C.R.
A socially and educationally backward and have also not been
able to access educational institutions for the purpose of
advancement. To amplify the provisions of Article 15 of the
Constitution as originally adopted and to provide equal
opportunity in educational institutions, clause (5) has been
B inserted
in
Article 15 by the constitutional amendment made
by the Parliament by the Ninety-Third Amendment Act, 2005.
As the object of clause (5) of Article 15 of the Constitution is
to provide equal opportunity to a large number of students
belonging to the socially and educationally backward classes
c of citizens or for the Scheduled Castes and the. Scheduled
Tribes to study in educational institutions -and equality of
opportunity is also the object of clauses (1 )and (2) of Article
15 of the Constitution, we cannot hold that clause (5) of Article
15 of the Constitution is an exception or a proviso overriding
o Article 15 of the Constitution, but an enabling provision to make
equality of opportunity promised in the Preamble in the
Constitution a reality.
17. For this view, we are supported by the majority
judgment
of this Court in
State of Kera/a & Anr. v. N.M.
E Thomas & Ors. ((1976) 2 SCC 310] iri which this Court has
held that clause (4) of Article 16 of the Constitution which has
opening words similar to the opening words in clause (5) of
Article 15 is not an exception or a proviso to Article 16, but is
a provision intended to give equality of opportunity to backward
F classes of citizens in matters of public employment. Similarly,
in Indra Sawhney & Ors. v. Union of India & Ors. [1992 Supp
(3) SCC 217], this Court following the majority judgment in the
case
of
State of Kera/a & Anr. v. N.M. Thomas & Ors. (supra)
held that clause (4) of Article 16 was not an exception to clause
G (1) of Article 16, but is an enabling provision to give effect to
te equality of opportunity in matters of public employment.
These two authorities have also been cited by K.G.
Balakrishnan, CJ., in his judgment in Ashoka Kumar Thakur
v. Union of India (supra) to hold that clause (5) of Article 15 of
H
•
• PRAMATI EDUCATIONAL & CULTURAL TRUST® v. 737
UNION OF INDIA [A.K. PATNAIK, J.]
the Constitution is not an exception to clause (1) of Article 15, A
but may be taken as an enabling provision to carry out the
constitutional mandate
of
equality of opportunity.
18.
We may now consider whether clause (5) of Article 15
of the Constitution has destroyed the right under Article 19(1 )(g)
of the Constitution to establish and administer private
educational institutions.
It is for the first time that this Court held
B
in
T.M.A. Pai Foundation (supra) that the
establishment and
running
of an
educational institution "is occupation" within the
meaning
of Article 19(1 )(g) of the Constitution.
In paragraph 20
of the majority judgment, while dealing with the four components C
of the rights under Articles 19 and 26(a) of the Constitution in
respect
of private unaided non-minority
educational institutions,
Kirpal, CJ. has held that education is per se regarded as an
activity that is charitable in nature. Kirpal, CJ. has further held
in paragraphs 53 and 68:
"53. With regard to the core components of the rights
under Articles 19 and 26(a), it must be held that while the
State has the right to prescribe qualifications necessary
for admission, private unaided colleges have the right to
admit students
of their choice. subject to an objective and
rational procedure of selection and the compliance with
conditions. if any, requiring admission of a small
percentage of students belonging to weaker sections of
the society by granting them freeships or scholarships, if
not granted by the Government.. ..................... "
D
E
F
"68. It would be unfair to apply the same rules and
regulations regulating admission to both aided and
unaided professional institutions. It must be borne in mind
that unaided professional institutions are entitled to G
autonomy
in their administration while, at the same time,
they do not forego or discard the
principle of merit. It would,
therefore, be permissible for the university or the.
Government, at the. time of granting recognition, to require
a private unaided institution to provide for merit-based H
A
B
c
D
738
• SUPREME COURT REPORTS [2014] 11 S.C.R.
selection while, at the same time, giving the management
sufficient discretion
in admitting students. This can be done
through various methods. For instance, a certain
percentage of the seats can be reserved for admission by
' the management out of those students who have passed
the common entrance test
held by itself or by the State/
university and have applie·d to the college concerned for
admission, while the rest of the seats may be filled up on
the basis
of
counselling by the State agency. This will
incidentally take care of poorer and backward sections of
the socieiy. The prescription of percentage for this
purpose has to be done by the Government according to
the local needs and different percentages can be fixed for
minority unaided and non-minority unaided an_d
professional colleges. The same principles may b'e
applied to other non-professional but unaided educational
institutions viz. graduation and postgraduation non
professional colleges or institutes.
19. Thus, the content
of the right under
Article 19(1)(g) of
the Constitution to establish and administer private educational
E institutions, as per the judgment of this Court in T. M.A. Pai
Foundation (supra), includes the right to admit students of their
cha.ice and autonomy
of administration, but this Court has
made it
clear in T.M.A. Pai Foundation (supra) that this right
and autonomy will not be affected if a small percentage of
F students belonging to weaker and backward sections of the
society were granted freeships or scholarships, if not granted
by the Government. This was the charitable element of the right
to establish and administer private educational institutions
under Article 19(1 )(g) of the Constitution. Hence, the identity of
G the right of private educational institutions under Article 19(1 )(g)
of the Constitution as interpreted by this Court, was not to be
destroyed by admissions from
amongst
educationally and
socially backward classes of citizens as well as the Scheduled
Castes and the Scheduled Tribes.
H
• PRAMATI EDUCATIONAL & CULTURAL TRUST® v. 739
UNION OF INDIA [A.K. PATNAIK, J.]
20. In P.A. lnamdar (supra), this Court speaking through A
Lahoti, CJ., was, however,
of the view that the judgment in
T.M.A. Pai Foundation (supra)
held that there was no power
vested
on the
State under clause (6) of Article 19 to regulate
or control admissions in the unaided educational institutions so
as to compel them to give up a share of the available seats to B
the State or to enforce reservation policy of the State on
available seats in unaided professional institutions. This will be
clear from paragraph 125 of the judgment in P.A. lnamdar.
(supra), which is extracted hereinbelow:
c
"125. As per our understanding, neither in the judgment of
Pai Foundation nor in the Constitution Bench decision in
Kera/a Education Bill which was approved by Pai
Foundation is there anything which would allow the State
to regulate or control admissions in the unaided
professional educational institutions so as to compel them D
to give
up a share of the
available seats to the candidates
chosen by the State, as if it was filling the seats available
to be filled up at its discretion in such private institutions.
This would amount to nationalisation of seats which has
been specifically disapproved
in Pai Foundation.
Such E
imposition
of quota of
State seats or enforcing reservation
policy of the State on available seats in unaided
professional institutions are acts constituting serious
encroachment
on the right and autonomy of private professional educational institutions. Such appropriation of F
seats
can
also not be held to be a regulatory measure in
the interest of the minority within the meaning of Article
30(1) or a reasonable restriction within the meaning of
Article 19(6) of the Constitution. Merely because the
resources of the State in providing professional education G
are limited, private educational institutions, which intend to
provide better professional education, cannot be forced by
the State to make admissions available on the basis of
reservation policy to less meritorious candidates. Unaided
institutions, as they are not deriving any aid from State H
740 SUPREME COURT REPORTS [2014] 11 S.C.R.
A funds, can have their own admissions if fair, transparent,
• non-exploitative and based on merit.
21. The reasoning adopted
by this Court in P.A. lnamdar
(supra), therefore, is that the appropriation of seats by the
State
B for enforcing a reservation policy was not a regulatory measure
and not reasonable restriction within the meaning of clause (6)
of Article
19 of the Constitution. As there was no provision other
than
clause (6) of Article 19 of the Constitution under which the
State could in any way restrict the fundamental right under
Article 19(1 )(g)
of the Constitution,
Parliament made the
C Constitution (Ninety-third Amendment) Act, 2005 to insert
clause (5) in Article 15 of the Constitution to provide that nothing
in Article 19( 1 )(g) of the Constitution shall prevent the State from
making
any
special provision, by law, for.the advancement of
any socially and educationally backward classes of citizens or
D for the Scheduled Castes or the Scheduled Tribes in so far as
such special provisions relate to their admission to educational
institutions including private educational institutions, whether
aided or unaided by the State. Clause (5) in Article 15 of the
Constitution, thus, vests a power
on the.
State, independent of
E and different from, the regulatory power under clause (6) of
Article.· 19, and we have to examine whether this new power
vested in the State which enables the State to force the
charitable element on a private educational institution destroys
F
the right under Article 19(1)(g) of the Constitution.
22. According to Dr. Dhavah,
the right of a private
educational institution under Article 19(1)(g) of the Constitution
as laid down by this Court in T.M.A. Pai Foundation (supra)
has a voluntary element. In fact, this Court in P.A. lnamdar
G (supra) has held in paragraph 126 at page 601 of the SCC that
the observations
in paragraph 68 of the judgment in T. M.A.
Pai
Foundation (supra) merely permit unaided private institutions
to maintain medt as the criterion of admission by voluntarily
agreeing for sea~-sharing with the State or adopting selection
based
on common entrance test of the
State and that there are
H
•
• PRAMATI EDUCATIONAL & CULTURAL TRUST® v. 741
UNION OF !NOIA [A.K. PATNAIK, J.]
also observations in T.M.A. Pai Foundation (supra) to say that A
they may frame their own policy to give freeships and
scholarships to the needy and poor students or adopt a policy ·.
in line with the reservation policy of the State to cater to the
educational needs of the weaker and poorer sections of the
society. In our view, all freedoms under which Article 19(1) of B
the Constitution, including the freedom under Article 19(1 )(g),
have a voluntary element but this voluntariness in all the
freedoms in Article 190) of the Constitution can be subjected
to reasonable restrictions imposed by the State by law under
clauses (2) to (6) of Article 19 of the,constit.ution. Hence, the c
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 under clause (6) of Article 19 of
the Constitution. As this Court has held in T.M.A. Pai
Foundation (supra) and P.A. lnamdar (supra) the State can
0
under clause (6) of Article 19 make regulatory provisions to
ensure the maintenance of proper academic standards, .
atmosphere and infrastructure (including qualified staff) and the
prevention
of maladministration by those in charge of the
management. However, as this
Court held in the aforesaid two E
judgments that nominating students for admissions would be
F
an unacceptable restriction in clause (6)
of Article 19 of the
Constitution,
Parliament has stepped in arid in exercise of its
amending power under Article 368 of the Constitution inserted
clause (5) in Article 15 to enable the State to make a law
making special provisions for admission of. socially and
educationally backward classes of citizens or for th.e Sch!'lduled
Castes and Scheduled Tribes for their advancement and to a
very limited extent affected the voluntary element
of this right
under
Article 19(1)(g) of the Constituion. We, therefore, do not
find any merit in the su_bmission
of learned
counsel for the G
petitioners that the identity
of the right of unaided private
educational institutions under
Article 19(1)(g) of the Constitution
has been destroyed by clause (5) of Article 15 of the
Constitution. ·
H
A
742 SUPREME COURT REPORTS [2014] 11 S.C.R.
23. We may now examine whether the Ninety-Third
Amendment satisfies the width test. A plain reading of clause
(5)
of Article 15 would show that the power of a
State to make
a
law can only be exercised where
it is necessary for
advancement of socially and educationally backward classes
B
of citizens or for the Scheduled Castes and
Scheduled Tribes
and not for any other purpose. Thus,
if a law is made by the State only to appease a class of citizen which is not socially or
educationally backward
or which is not a Scheduled Caste or
Scheduled Tribe, such a law will
be beyond the powers of the
c
State under clause (5) of Article 15 of the Constitution. A plain
reading of clause (5) of Article 15 of the Constitution will further
show that such law has to be limited to making a special
pro,vision relating to admission to private educational
institutions, whether aided or unaided, by the State. Hence, if
0
the State makes a law which is not related to admission in
educational institutions and relates to some other aspects
affecting the
autonomy and rights of private educational
institutions as defined by this Court
in TM.A. Pai Foundation,
such a law would not be within the power of the
State under
E clause (5) of Article 15 of the Constitution. In other words, 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
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
F it is for the purposes
of advancement of any socially and
educationally backward
classes of citizens or for the 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
G the Scheduled Tribes to private educational institutions, Whether
aided or unaided, and
if the
Court finds that the power has not
been exercised 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. In our
H
•
'
•
PRAMATI EDUCATIONAL & CULTURAL TRUST® v. 743
UNION OF INDIA [A.K. PATNAIK, J.]
opinion, therefore, the width
of the power vested on the
State A
under clause (5) of Article 15 of the Constitution by the
constitutional amendment
is not such as to destroy the right
under
Article 19(1 )(g) of the Constitution.
24.
We may now examine the contention of Mr. Nariman B
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 admission of socially and educationally
backward classes of citizens or for the Scheduled Castes and C
Scheduled
Trib~s.
The distinction .between a private aided
educational institution and a private unaided educational
institution is that private educational institutions receive aid from
the State, whereas private unaided educational institutions do
not receive aid from the State. As and when a law is made by
the State under clause (5) of Article 15 of the Constitution, such D
a law would have to be examined whether it has taken into
account the fact that private unaided educational institutions are
not aided by the State and has made provisions in the law to
ensure that private unaided educational institutions are
compensated for the admissions made
in such private unaided E educational institutions from amongst socially and educationally
backward classes of citizens or the Scheduled Castes and the
Scheduled Tribes. In our view, therefore, a law made under
clause (5) of Article 15 of the Constitution by the State on the
ground that
it treats private aided
educational institutions and F
privaie unaided educational institutions alike is not immune
from a challenge under Article 14 of the Constitution. Clause
(5) of Article 15 of the Constitution only states that nothing in
Article 15 or Article 19(1)(g) will prevent the State to make a
special provision, by law, for admission of socially and G
educationally backward classes of citizens or for the Scheduled
Castes and the Scheduled Tribes to educational institutions
including private educational institutions, whether aided or
unaided by the State. Clause (5) of Article 15 of the Constitution
does not say that such a law will not comply with the other H
744 SUPREME COURT REPORTS [2014] 11 S.C.R.
A requirements of equality as provided in Article 14 of the
Constitution. Hence, we do not find any merit in the submission
of the Mr. Nariman 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
B violative of Article 14 of the Constitution.
25.
We may now
deal with the contention of Mr. Divan that
clause (5) of Article 15 of the Constitution is violative of Article
14 of the Constitution as it excludes from its purview the
C minority institutions referred to in clause (1) of Article 30 of the
Constitution and the contention
of Mr. Nariman that
clause (5)
of Article 15 excludes both unaided minority institutions and
aided minority institutions alike and is thus violative of Article
14 of the Constitution. Articles 29(2) 30(1) and 30(2) of the
Constitution, which are relevant, for deciding these contentions,
D are quoted hereinbelow:
E
F
G
H
"29. Protection of interests of
minorities-·
(1 ) ....................................... .
I
ill No citizen shall be denied admission into any
educatiooal institution maintained by the State or receiving
aid out
of. State funds on grounds
only of religion, race,
' caste, language or any of them.
'
I
30. Right of minorities to establish and administer
educational institutions-ill All minorities, whether based
on religion or language, shall have the right to establish anci
administer educational institutions of their choice.
11.Af ······················································
ill The state shall not, in granting aid to educational
institutions, discriminate against any educational institution
on the ground that it is under the management
of a minority,
whether based on
religion oi language." ·
•
• PRAMATI EDUCATIONAL & CULTURAL TRUST® v. 745
UNION OF INDIA [A.K. PATNAIK, J.]
On the question whether the right of minority institutions under A
Article 30(1) ofthe Constitution would be affected by admission
of students who do not belong to the minority community which
has established the institutions, Kirpal C.J. writing the majority
judgment in T.M.A. Pai Foundation (supra) considered the
previous judgments
of this
Gou.rt and then held in ·paragraph B
149 at page 582 and 583
of the sec:
"149. Although the right to administer includes within it a
right to grant admission to students of their choice under
Article 30( 1), when such a minoritY institution is granted the C
facility of receiving grant-in-aid, Article 29(2) would apply,
and necessarily, therefore, one
of the right of administration
of the minorities would be eroded to some extent.
Article
30(2) is an injunctio.n against the state not to
discriminate against the minority educational institution
and prevent it from receiving aid on the ground that the D
institution is under the management
of a minority.
While,
therefore, a minority educational institution receiving grant
in-aid would not be completely outside the discipline
of
Article 29(2) of the
Constitution by no stretch of imagination
can the rights guaranteed under Article 3G(1 l be E ·
annihilated. It is this context that some interplay between
Article 29(2) and Article 30( 1 l is required. As observed
quite aptly in St. Stephen's case "the fact that
Article 29(2) applies to minorities as well as non-minorities
does not mean that it was intended to nullify the special F
right guaranteed to minorities in Article 30(1)." The word
"only" used in Article 29(2) is of considerable significance
and has been used for some avowed purpose. Denying
admission to non-minorities for the purpose of
accommodating minority students to a reasonable extent G will not be only on grounds of religion etc .. but is primarily
meant to preserve the minority character
of the institution
and to effectuate the guarantee under Article
30(1). The
best possible way is to hold that as long
as the minority
educational institution permits admission of citizens H
746
A
B
c
D
E
SUPREME COURT REPORTS [2014] 11 S.C.R.
belonging to t~e non-minority class to a reasonable extent
based upon merit, it will not be an infraction of
Article 2912), even though .the institution admits students
of the minority group of its own choice for whom the
institution was meant. What would be a reasonable extent
would depend upon variable factors, and it may not be
advisable to fix any specific percentage. The situation
would vary according to the type of institution and the
nature of education that
is being imparted in the institution. Usually, at the school level, although it may be possible to
fill up all the seats with students of the minority group, at
the
higher
level, either in colleges or in technical
institutions, it may not be. possible to fill up all the seats
with the students of the minority
group. However, even if it
is
possible to fill up all the seats with students of the
minority group, the moment the institution
is granted aid,
the institution
will have to admit students of the non-minority
group
to a
reasonable extent, whereby the character of the
institution is not annihilated,
and at the same time, the
rights of the citizen engrafted under
Article 29(2) are not
subverted. It is for this reason that a variable percentage
of admission of minority students depending
on the type'
of institution and education is desirable,
<1nd indeed,
necessary, to promote the constitutional guarantee
enshrined
in both
Article 29(2) and Article 30."
F Thus, the law as laid down by this Court is that the minority
character of
an aided or unaided minority institution cannot be annihilated by admission of students from communities other
than the minority community which has established the
institution, and whether such admission to any particular
G percentage of seats will destroy the minority character of the
iflstitution or not will depend on a large number of factors
including the type of institution.
26 .. Clause (5) of Article 15 of the Constitution enables the
State
to make a
special provision, by law, for the advancement
•H
•
-.
• PRAMATI EDUCATIONAL & CULTURAL TRUST® v. 747
UNION OF INDIA [A.K. PATNAIK, J.]
of socially and educationally backward classes of citizens or A
for the Scheduled Castes and Scheduled Tribes. Such
admissions of socially and educationally backward classes of
citizens or for the Scheduled Castes and the Scheduled Tribes
who may belong to communities other than the minority
community which has established the institution, may affect the B
right
of the minority
educational institutions referred to in clause
(1) of Article 30 of the Constitution. In other words, the minority
character
of the minority
educational institutions referred to in
clause (1) of Article 30 of the Constitution, whether aided or
unaided, may be affected by admissions of socially and c
educationally backward classes of citizens or the Scheduled
Castes and the Scheduled Tribes and it is for this reason that
minority institutions, aided
or unaided, are kept outside the enabling power of the State under clause (5) of Article 15 with
a view to protect the minority institutions from a law made by
0
the majority. As has been held by the Constitution Bench of this
Court in Ashoka Kumar Thakur v. Union of India (supra), the
minority educational institutions, by themselves, are a separate
class and their rights are protected under Article 30 of the
Constitution, and, therefore, the exclusion cif minority educational
institutions from Article 15(5) is not violative of Article 14 of the E
Constitution.
27.
We
n:iay now consider the contention of Mr. Divan that
clause (5) of Article 15 of the Constitution is violative of·
secularism insofar as it excludes religious minority institutions F
referred to
in
Article 30(1) of the Constitution from the purview
of clause (5) of Article 15 of the Constitution. In Dr. M. Ismail
Faruqui and Others v, Union of India and Others (supra), this
Court has held that the Preamble of the Constitution read in
particular with Articles 15 to 28 emphasis this aspect and · G
indicates that the concept of secularism embodied in the
constitutional scheme is a creed adopted by the Indian people.
Hence, secularism is no doubt a basic feature of the
Constitution, but we fail to appreciate how clause (5) of Article
H
748 SUPREME COURT REPORTS [2014] 11 S.C.R.
A 15 of the Constitution which excludes religious minority
institutions
in
clause (1) of Article 30 of the Constitution is in
. any way violative of the concept of secularism. On the other
hand, this Court has held in T.M.A. Pai Foundation (supra) that
the essence
of
secularism in India is the recognition and
B preservation of the different types of people, with diverse
languages and different beliefs and Articles 29 and 30.seek
to preserve such differences
and at the same time unite the people of India to form one strong nation. (see paragraph 161
of the majority judgment of Kirpal, C.J., in T.M.A. Pai
c Foundation at page 587 of the SCC). In our considered opinion,
therefore,
by excluding the minority institutions referred to in clause (1) of Article 30 of the Constitution, the secular character
of India is maintained and not destroyed.
28. We may now come to the submission of Mr. Nariman
D that the fundamental right under Article 21 read with Article
51AG) of the Constitution is violated by clause (5) of Article 15
of the Constitution. According to Mr. Nariman, every person has
a right under Article 21 and a duty under Article 51A(j) to strive
towards excellence in all spheres of individual and collective
E activity, but this will not be possible if private educational
institutions in which a person studies for the purpose of
achieving excellence are made to admit students from amongst
backward classes of citizens and from the Scheduled Castes
and the Scheduled Tribes. This contention, in our considered
F opinion, is not founded
on the experience of educational
institutions
in
India. Educational institutions in India such as
Kendriya Vidyalayas, Indian Institute of Technology, All India
Institute of Medical Sciences and Government Medical
Colleges admit students in seats .reserved for backward
G classes of citizens and for the Scheduled Castes and the
Scheduled Tribes and yet these Government institutions have
produced excellent students who have grown up to be good
administrators, academicians, scientists, engineers, doctors
and the
like. Moreover, the contention that excellence will be
H compromised by admission from amongst the backward
•
• PRAMATI EDUCATIONAL & CULTURAL TRUST® v. 74S
UNION OF INDIA [A.K. PA'fNAIK, J.]
classes of citizens and the Scheduled Castes and the A
Scheduled Tribes in private educational institutions is contrary
to the Preamble of the Constitution which promises to secure
to all citizens "fraternity assuring the dignity oflhe individual and
the unity and integrity of the nation". The goals of fraternity, unity
and integrity
of the nation cannot be achieved
unless the B
backward classes of citizens and the Scheduled Castes and
the Scheduled Tribes, who for historical factors, have not
advanced are integrated into the main stream of the nation. We,
therefore, find no merit
in the submission of Mr. Nariman that
clause (5) of Article 15 of the Constitution violates the right c
under Article 21 of the Constitution.
29.
We accordingly
hold that 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 and
the view taken by Bhandari,
J. in Ashoka Kumar Thakur v. D
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
is not correct. Instead, we hold that the (Ninety-third
Amendment) Act, 2005 of the Constitution inserting clause (5) E
of Article 15
of the Constitution is
valid.
Validity of Article 21A of the Constitution
Contention of the learned counsel for the petitioners:
F
30. The second substantial question of law which we are
called upon to decide is whether
by inserting
Article 21A by the
Constitution (Eighty-Sixth Amendment) Act, 2002, the
Parliament has altered the basic structure or framework of the
Constitution. Before we refer to thii! contentions of the learned G
counsel for the petitioners, we must reiterate some facts. Article
21A is titled 'Right to Education' and it 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
H
• 750 SUPREME COURT REPORTS [2014] 11 S.C.R.
A may, by law, determine. Accordingly, the 2009 Act was enacted
by Parliament to provide free and compulsory education to all
children of the age of six to fourteen years. The validity of the
2009 Act was challenged and considered in Society for
Unaided Private Schools of Rajasthan v. Union of India & Anr.
B (supra) by a three-Judge Bench of this Court. Two learned
Judges S.H. Kapadia C.J. and Swatanter Kumar J. held that
c
D
E
· the 2009 Act 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.
The two learned Judges, however, held that the 2009 Act,
in particular Sections 12(1)(c) and Section 18(3), infringe the
fundamental rights guaranteed to unaided minority schools
F under Article 30(1) of the Constitution and therefore the 2009
Act shall not apply to such unaided minority schools. Differing
from the majority opinion expressed by the two learned Judges,
Radhakrishnan J; .held that Article 21A casts an obligation on
the State and not on unaided non-minority and unaided minority
G schools to provide free and compulsory education to children
of the age of six to fourteen years. After the aforesaid judgment
of this Court in Society for Unaided Private Schools of
Rajasthan v. Union of India & Anr. (supra), the 2009 Act was
amended by the Right of Children to Free And Compulsory
H
• PRAMATI EDUCATIONAL & CULTURAL TRUST® v. 751
UNION OF INDIA [A.K. PATNAIK, J.]
Education Act, 2009 {Amendment Act, 2012) and by the A
amendment, it was provided
in sub-section (4) of Section 1 of
the
2009 Act that subject to the provisions of Articles 29 and
30 of the Constitution, the provisions of the 2009 Act shall apply
to conferment of rights on children to free and compulsory
education. B
31.
Mr. Rohatgi,
learned senior counsel for the petitioners
in Writ Petition {C) No.416 of 2012, submitted that Article 21A
of the Constitution creates obligation only upon the State and
its instrumentalities as defined in Article 12 of the Constitution C
and does not cast any obligation on a private unaided
educational institution. He submitted that the minority opinion
of Radhakrishnan J. in Society for Unaided Private Schools
of Rajasthan v. Union of India & Anr. {supra) is, therefore, a
correct interpretation of Article 21A. He submitted that if Article
21A is· interpreted to ·include the private unaided educational D
institutions within its sweep then it would abrogate the right
under Article 19(1 )(g) of the Constitution to establish and
administer private educational institutions which is a basic
feature
of the Constitution.
32. Mr. Nariman,
learned senior counsel for the petitioners
in Writ Petition {C) No.128 of 2014, submitted that word "State"
used in i'trticle 21A of the Constitution would mean the State
E
F
as defined in Article 12 of the Constitution and therefore would
include the Government and Parliament of India and the
Government and the Legislature of each of the States and all
local or other authorities within the territory of India or under the
control of the Government of India. He submitted that this Court .
has held in P.O. Shamdasani v. The Central Bank of India Ltd.
{AIR 1952 SC 1952) that the language and structure of Article G
19 and its setting
in Part
Ill of the Constitution clearly show that
the Article was intended to protect those freedoms against
State action only and hence violation of rights of property by
individuals is not within the purview of Article 19 of the
Constitution.
He submitted that this Court has
also held in Smt.
H
752 SUPREME COURT REPORTS (2014) 11 S.C.R.
A Vidya Verma v. Dr. Shiv Narain Verma (AIR 1956 SC 108)
that the fundamental right of personal liberty under Article 21
of the Constitution is available against only the State and not
against private individuals. He submitted that, therefore, the
word "State" in Article 21 A of the Constitution would not include
8 private unaided educational institutions or private individuals.
33. Mr. Nariman submitted that before the Constitution
(Eighty~Sixth Amendment) Act, 2002, Article 45 provided that
the State shall endeavour to provide, within a period of ten years
from the commencement
of the Constitution,
"for" free and
C compulsory education for all children until they complete the age
of fourteen years. He submitted that what Article 45 therefore
meant was that the State alone shall endeavour to provide "for"
free and compulsory education to all children upto the age of
fou,fteen years. He submitted that by the Constitution (Eighty-
D Si>ith Amendment) Act, 2002, Article 45 was deleted·and in its
place Article 21A was inserted
in the Constitution. He submitted
that in Article 21A
of the Constitution, the word
"for" is missing
but this does not mean that the obligation of the State to fund
free and compulsory education to all children upto the age of
E 14 years could be passed on by the State to private unaided
educational institutions. He submitted that Article 21A, if
construed to me.an that the State could by law.,pass on its
obligation under Article 21A to provide free and compulsory
education to all children upto the age of fourteen years to private
F unaided schools, Article 21A
of the Constitution would abrogate
the right
of private educational schools under Article 19(1)(g)
of the Constitution as interpreted by this Court in T.M.A. Pai
Foundation
(supra).
34. Mr. Nariman submitted that the
Objects and Reasons
G
of the
Bill which became the 2009 Act explicitly stated that the
2009 Act is pursuant to Article 21A of the Constitution but did
not make any reference to clause (5)
of Article 15 of the
Constitution. He submitted that the validity
of the provisions of
the
2009 Act will, therefore, have to be tested only by reference
H
•
• PRAMATI EDUCATIONAL & CULTURAL TRUST® v. 753
UNION OF INDIA [A.K. PATNAIK, J.]
to Article 21A of the Constitution and not by reference to clause A
(5)
of
Article 15 of the Constitution. According to both Mr.
Rohatgi and Mr. Nariman, Section 12(1 (c) of the 2009 Act
insofar as it provides that a private unaided school shall admit
in Class I to the extent of at least 25% of the total strength of
the class, children belonging to weaker sections and B
disadvantaged group
in the neighborhood and provide free and compulsory education till its completion is violative of the right
of private unaided schools under Article 19(1)(g) of the
Constitution as interpreted by this Court in TM.A. Pai
Foundation (supra) and P.A. lnamdar (supra). They submitted c
that the majority opinion of the three-Judge Bench in Society
for Unaided Private Schools of Rajasthan v. Union of India &
Anr. (supra) is, therefore, not correct.
35. Mr. Ajmal Khan, learned senior counsel appearing for
the petitioners in Writ Petition (C) No.1081
of 2013
(Muslim D
Minority Schools Managers' Association) and Mr. T.R.
Andhyarujina, learned senior counsel appearing for intervener
in Writ Petition (C) No.60
of 2014 (La Martineire
Schools) that
under Article 30(1) of the Constitution all minorities, whether
based on religion or language, shall have the right to establish E
and administer educational institutions of their choice. They
submitted that the State while making the law to provide free
and compulsory education to all children of the age of six to
fourteen years cannot be allowed to encroach on this right of
the minority institutions under Article 30(1) of the Constitution. F
They referred to the decisions
of this Court right from the
Kerala
Educational Bill case to the T.M.A. Pai case (supra) to argue
that admitting children other than those of the minority
community which establish the school cannot be forced upon
the minority institutions, whether aided or unaided. They G
submitted that 2009 Act,
if made
applicable to minority schools,
aided or unaided, will be ultra vires Article 30(1) of the
Constitution. They submitted that the majority judgment
of this
Court in
Society for Unaided Private Schools of Rajasthan v.
H
754 SUPREME COURT REPORTS [2014] 11 S.C.R.
A
Union of India & Anr. (supra), has taken a view that the
2009
Act will not apply to unaided minority schools but will apply to
aided minority schools. They submitted that accordingly sub
section (4) of Section 1
of the
2009 Act provides that subject
to the provisions
of articles 29 and
30 of the Constitution, the
B provisions of the Act shall apply to conferment of rights· on
children to free and compulsory education. They submitted that
this sub-section (4)
of Section 1 of the
2009 Act should be
declared as ultra vires Article 30(1) of the Constitution.
c
Submissions of learned counsel for the Union of India:
36. In reply, Mr. K.V. Vishwanathan, learned Additional
Solicitor General, submitted that the Statement of Objects and
Reasons
of the
Bill, which was enacted as the Constitution
(Eighty-Sixth Amendment) Act, 2002, stated that the goal set
D out
in Article 45 of the Constitution of providing free and
compulsory education for children upto the age of 14 years
could not
be achieved even after
50 years cif adoption of the
provision
and in order to
fulfill this goal, it was felt that a new
provision
in the Constitution should be inserted as
Article 21A
E providing 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. He submitted
that
in accordance with Article 21A of the Constitution, the
2009
Act has been enacted which provides the manner in which such
F free and compulsory education for children upto the age of 14
years shall be provided by the State and it provides in Section
12(1)(c) that private unaided schools shall admit in Class I from
amongst weaker sections
of society and from disadvantaged
groups at least twenty-five per cent of the strength
of the class
G and provide free
and compulsory education.
H
37. Mr. Vishwanathan submitted that private educational
institutions cannot have any grievance
in this regard because
they are performing a function akin
to the function of the State.
He
submitted that applying the functional test private
•
•
PRAMATI EDUCATIONAL & CULTURAL TRUST® v. 755
UNION OF INDIA [A.K. PATNAIK, J.]
educational institutions are also State within the meaning of A
Article 12 of the Constitution and, therefore, the argument of Mr.
Nariman that the obligation of providing free and compulsory
education to all children of the age of six to fourteen years
cannot be passed
on by the
State to private educational
institutions has no substance. Mr. Vishwanathan submitted that B
in paragraph 53 of the judgment in
T.M.A. Pai Foundation
(supra) this Court has
held that while private unaided
educ.ational institutions have the right
to admit students of their
choice, admission of a
small percentage of students belonging
to weaker sections of the society by granting them freeships or C
scholarships, if not granted by the Government should also be
done. He submitted that in paragraph 68 of
T.M.A. Pai
Foundation (supra), this Court has
also held that a small
percentage of seats may also be filled up to take care of poorer
and backward sections of the society.
He submitted that the o 2009 Act, therefore, has provided in Section 12(1)(c) that an
unaided private school shall admit in Class I, to the extent of at
least twenty-five per cent of the strength of that class, children
belonging to weaker section and disadvantaged group in the
neighbourhood
and provide free and
compulsory elementary E
education till its completion and this provision of the 2009 Act,
therefore,
is not ultra vires
Article 19(1 )(g) of the Constitution.
38. Regarding minority institutions,
Mr. Vishwanathan
submitted that under
Article 3)(1) of the Constitution they have
equal status and accordingly this Court has held in Society for F
Unaided Private Schools of Rajasthan v. Union of India & Anr.
(supra) the 2009 Act will not apply to unaided minority schools
but will apply to aided minority schools. He submitted that
accordingly the 2009 Act was amended by the Right of Children
to Free And Compulsory Education (Amendment) Act, 2012, G
so as to provide
in sub-section (4) of
Section 1 of the 2009 Act
that subject to the provisions
of
Articles 29 and 30 of the
Constitution, the provisions
of the
2009 Act shall apply to
conferment of rights
on
children to free and compulsory
education. H
756 SUPREME COURT REPORTS [2014] 11 S.C.R.
A Opinion of the Court on Article 21A of the Constitution
and
on the
validity of 2009 Act:
39. We have considered the submissions of learned
counsel for the parties and we find that this is what it is stated
B
in the Statement of
Objects and Reasons of the Constitution
{Eighty-Third Amendment) Bill, 1997, which ultimately was
enacted as the Constitution {Eighty-Sixth Amendment) Act,
2002:
c
D
E
F
G
H
''The Constitution of
India in a Directjve Principle contained
in article 45, has 'made a provision for free and
compulsory education for all children up to the age of
fourteen years within ten years of promulgation of the
Constitution. We could not achieve this goal even after 50
years of adoption of this provision. The task of providing
education to all children in this age group gained
momentum after the National Policy of Education {NPE)
was announced
in 1986. The Government of
India, in
partnership with the State Governments, has made
strenuous efforts to fulfil this mandate and, though
significant improvements were seen
in various educational
indicators, the
ultimate goal of providing universal and
quality education still remains unfulfilled. In order to fulfil this
goal, it is felt that an explicit provision should be made in
the Part relating to Fundamental Rights of the
Constitution.
2. With a view to making right to free and compulsory
education a fundamental right, the Constitution (Eighty-third
Amendment) Bill, 1997 was introduced in Parliament to
insert a new article, namely, article 21 A conferring on all
children in the age group of 6 to 14 years the right to free
and compulsory education. The said Bill was scrutinised
by the Parliamentary Standing Committee
on Human
Resource Development and the subject was
also dealt with
in its 165th Report by the Law Commission of India.
•
• PRAMATI EDUCATIONAL & CULTURAL TRUST® v. 757
UNION OF INDIA [A.K. PATNAIK, J.]
3. After taking into consideration the report
of the Law A
Commission
of
India and the recommendations of the
Standing Committee of Parliament, the proposed
amendments in Part Ill, Part IV and Part IVA of the
Constitution are being made which are as follows:-
(a) to provide for free and compulsory education to children
in the age group of 6 to 14 years and for this purpose, a
legislation would be introduced in Parliament after the
Constitution (Ninety-third Amendment) Bill, 2001 is enacted;
B
(b) to provide in
article 45 of the Constitution that the State C
shall endeavour to provide early childhood care and
education to children below the age of six years; and
(c) to amend article SIA of the Constitution with a view to
providing that it shall be the obligation of the parents to D
provide opportunities for education to their children.
4. The Bill seeks to achieve the above objects.
MURLI MANOHAR JOSHI.
E
NEW DELHI;
The 16th November, 2001 ."
It will, thus, be clear from the Statement of Objects and Reasons
extracted above that although the Directive Principle in Article F
45 contemplated that the State will provide free and compulsory
education for all children up to the age of fourteen years within
ten years
of
promulgation of the Constitution, this goal could
not be achieved even after 50 years and, therefore, a
constitutional amendment was proposed to insert Article 21A G
in Part Ill of the Constitution. Bearing in mind this object of the
Constitution (Eight-Sixth Amendment) Act, 2002 inserting
Article 21A of the Constitution, we may now proceed to
consider the submissions
of
learned counsel for the parties.
40. Article 21A of the Constitution, as we have noticed,
H
758 SUPREME COURT REPORTS [2014] 11 S.C.R.
A states that the State shall provide free and compulsory
education to all children of the age of six to fourteen years in
such manner as the State may, by law, determine. The word
'State' in Article 21A can only mean the 'State' which can make
the law. Hence, Mr. Rohatgi and Mr. Nariman are right in their
B submission that the constitutional obligation under Article 21A
of the Constitution is on the State to provide free and
compulsory education to all children of the age of 6 to 14 years
and not on private unaided educational institutions. Article 21A,
however, states that the State shall by law determine the
c "manner" in which it will discharge its constitutional 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(t)(g) and Article 30(1) of the
0
Constitution. As has been held by this Court in Venkataramana
Devaru
v.
State of Mysore (AIR 1958 SC 255):
"The rule of construction is well settled that when there are
in an enactment two provisions which cannot be reconciled
with each other, they should be so interpreted that, if
E possible; effect could be given to both. This is what is
known as the rule of harmonious construction."
We do not find anything in Article 21A which conflicts with either
the right of private unaided schools under Article 19(1)(g) or
F the right
of minority
schools under 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 the right of unaided private educational
G 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.
41. While discussing the validity of clause (5) of Article 15
H of the Constitution, we have already noticed that in paragraphs
•
• PRAMATI EDUCATIONAL & CULTURAL TRUST® v. 759
UNION OF INDIA [A.K. PATNAIK, J.)
53 and 68 of the judgment in T.M.A. Pai Foundation (supra), A
this Court has held that admission of a small percentage
of
students belonging to weaker sections of the society by granting
them freeships or scholarships, if not granted by the
Government and the admission
to some of the seats to take
care
of poorer and backward sections of the society may be B
permissible
and would not be inconsistent with the rights under
Articles 19(1)(g) of the Constitution.
In P.A. lnamdar (supra),
however, this Court
explained that there was nothing in this
Court's judgment
in T.M.A. Pai Foundation (supra) to say that
such admission
of students from amongst weaker, backward c
and poorer sections of the society in private unaided institutions
can
be done by the State because the power vested on the
State
in clause (6) of
Article 19 of the Constitution is to make
only regulatory provisions and this-power could not
be used by
the State to force admissions from amongst weaker, backward D
and
poorer· sections of the society on private unaided
educational institutions. While discussing the validity of clause
(5) of Article 15, we have also held that there is
an element of
voluntariness
of all the freedoms under Article 19(1) of the
Constitution, but the voluntariness
in these freedoms can be
subjected to law made under the powers available to the State
under clause (2) to (6)
of Article 19 of the Constitution.
E
42.
In our considered opinion, therefore, by the Constitution
(Eighty-Sixth Amendment) Act, a new power
was made
available to the State under Article 21A of the Constitution to F
make a law determining the manner in which it will provide free
and compulsory education to the children of the age of six to
fourteen years as this goal contemplated
in the Directive
Principles
in Article 45 before this constitutional amendment
could not be achieved for fifty years. This additional power G
vested by the Constitution (Eighty-Sixth Amendment) Act,
2002
in the State is independent and different from the power of the
State under clause (6)
of Article 19 of the Constitution and has
affected the
voluntariness of the right under Article 19(1)(g) of
the Constitution. By exercising this additional power, the State H
760 SUPREME COURT REPORTS [2014] 11 S.C.R.
A can by law impose admissions on 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
B
of
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 be destructive of the right of
c the private unaided educational institutions under Article ,
19(1 )(g) of the Constitution.
43.
To give an idea of the
goals Parliament intended to
achieve by enacting the 2009 Act, we extract paragraphs 4, 5
and 6 of the Statement of Objects and Reasons of the Bill which
D was enacted
as the
2009 Act hereinbelow:
"4. The proposed legislation is anchored in the belief that
the values of equality, social justice and democracy and
!he creation of a just and humane society can be achieved
E only through provision of inclusive elementary education to
all. Provision of free and compulsory education of
satisfactory quality to children from disadvantaged and
weaker sections
is, therefore, not
merely the responsibility
of schools run or supported by the appropriate
F Governments, but also of schools which are not dependent
on Government funds.
G
5. It is, therefore, expedient and necessary to enact a
suitable legislation as envisaged in Article 21A of the
Constitution.
6. The
Bill seeks to achieve this objective."
It will be clear from the aforesaid extract that the 2009 Act
intended to achieve the constitutional goal of equality of
H opportunity through inclusive elementary education to all and
•
•
PRAMATI EDUCATIONAL & CULTURAL TRUST® v. 761
UNION OF INDIA [A.K. PATNAIK, J.]
also intended that private schools which did not receive A
government aid should also take the responsibility
of providing
free and compulsory education of satisfactory quality
to children
from disadvantaged
and weaker sections.
44. When we examine the
2009 Act, we find that under
8
Section 12(1){c) read with Section 2(n)(iv)
of the Act, an
unaided school not receiving any kind
of aid or grants to meet
its expenses from the 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 C
neighbourhood and provide free and compulsory elementary
education till its completion. We further find that under Section
12(2)
of the
2009 Act such a school shall be reimbursed
expenditure so incurred by it to the
extent of
per-child
expenditure incurred by the State, or the actual amount charged D
from the child, whichever is less,
in such manner as may be
prescribed. Thus, ultimately it is the
State which is funding the
expenses
of free and compulsory education of the
children
belonging to weaker sections and several groups in the
neighbourhood, which are admitted
to a private unaided school. E
These provisions
of the
2009 Act, in our view, are for the
purpose of providing free
and
compulsory education to children
between the age group of 6 to 14 years and are consistent with
the right under Article
19(1 )(g) of the Constitution,
as interpreted
by this Court in T.M.A. Pai Foundation (supra) and are meant F
to achieve the constitutional goals
of equality of opportunity in elementary education to children of weaker sections and
disadvantaged groups
in our society. We, therefore, do not find
any merit
in the submissions made on behalf of the non-minority
private schools that Article
21 A of the Constitution and the
2009 G
Act violate their right under Article
19(1 )(g) of the Constitution.
45.
Under Article 30(1) of the Constitution, all minorities,
whether based on·religion or language, shall have the right to
establish and administer educational institutions
of their choice.
H
762 SUPREME COURT REPORTS (2014] 11 S.C.R.
A Religious and linguistic minorities, therefore, have a special
constitutional right to establish and administer educational
schools of their choice and this Court has repeatedly held that
the State has no power to interfere with the administration
of
minority institutions and can make
only regulatory measures and
B has no power to force admission of students from amongst non
minority communities, particularly in minority schools, so as to
affect the minority character of the institutions. Moreover,
in
Kesavananda Bharati Sripadaga/varu v.
State of Kera/a &
•
Anr. (supra) Sikri, CJ., has even gone to the extent of saying---·:\-.
c that Parliament cannot in exercise of its amending power '~·
D
E
F
abrogate the rights of minorities. To quote the observations of
Sikri,
CJ. in Kesavananda Bharati Sripadagalvaru v. State of
Kera/a & Anr. (supra):
"178. The above brief summary of the work of the Advisory
Committee and the Minorities Sub-committee shows that
no
one ever
contemplated that fundamental rights
appertaining to the minorities would be liable to be
abrogated
by an amendment of the Constitution. The same
is true about the proceedings
in the Constituent
Assembly.
There is no hint anywhere that abrogation of minorities'
rights was ever
in the
contemplation of the important
members of the Constituent Assembly. It seems to me that
in the context of the British plan, the setting up of Minorities
Sub-corriinittee, the Advisory Committee and the
proceedings of these Committees, as well as the
proceedings in the Constituent Assembly mentioned
above, it is impossible to read the expres~ion
"Amendment of the. Constitution" as empowering
Parliament to abrogate the rights of minorities."
G 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.
H 46. When we look at the 2009 Act, we find that Section
•
PRAMATI EDUCATIONAL & CULTURAL TRUST® v. 763
UNION OF INDIA [A.K. PATNAIK, J.]
12(1)(b) read with Section 2(n) (iii) provides
that an aided A
school receiving aid and grants, whole or part, of its expenses
from the appropriate Government or the local authority has to
provide free and compulsory education to such proportion of
children admitted therein as its annual recurring aid or grants
so received bears to its annual recurring expenses, subject to B
a minimum
of twenty-five per cent. Thus, a minority aided school is put under a legal obligation to provide free and
compulsory elementary education to children who need not be
children of members of the minority community which has
established the school. We also find that under Section 12(1)(c) c
read with Section 2(n)(iv), an unaided school has to admit into
twenty-five per cent
of the strength of
class I children belonging
to weaker sections and disadvantaged groups in the
neighbourhood. Hence, unaided minority schools will have a
legal obligation to admit children belonging to weaker sections
0
and disadvantaged groups in the neighbourhood who need not
be children of the members of the minority community which
has established the school. While discussing the validity of
clause (5) of Article 15 of the Constitution, we have held that
members
of communities other than the minority community E
which has
established the school cannot be forced upon a
minority institution
because that may destroy the minority
character
of the
school. In our view, if the 2009 Act is made
applicable to minority schools, aided or unaided, the right of
the minorities 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. We are thus
of the view that the majority judgment of this Court in Society
for Unaided Private Schools of Rajasthan v. Union of India
F
& Anr. (supra) insofar as it holds that the 2009 Act is applicable G
to aided minority schools is not correct.
47. In the result, we hold that the Constitution (Ninety-third
Amendment) Act, 2005 inserting clause (5) of Article 15 of the
Constitution
and the Constitution (Eighty-Sixth Amendment) Act, H
764 SUPREME COURT REPORTS [2014] 11 S.C.R.
A 2002 inserting Article 21 A of the Constitution do not alter the
basic structure or framework
of the Constitution and are
constitutionally
valid. We also hold that the 2009 Act is not ultra
vires Article 19(1 )(g) of the Constitution. We, however, hold that
the 2009 Act insofar as it applies to minority schools, aided or
B unaided, covered under clause (1) of Article 30 of the
Constitution is
ultra vires the Constitution.
Accordingly, Writ
Petition (C) No.1081of2013 filed on behalf of Muslim Minority
Schools Managers' Association is allowed and Writ Petition
(C) Nos.416 of 2012, 152 of 2013, 60 of 2014, 95 of 2014,
c 106 of 2014, 128 of 2014, 144 of 2014, 145 of 2014, 160 of
2014 and 136 of 2014 filed on behalf of non-minority private
unaided educational institutions are dismissed. All I.As. stand
disposed
of. The parties, however,
shall bear their own costs.
Kalapna K. Tripathy Writ Petitions disposed of.
•
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