2012 Supreme(SC) 292

2012 (3) Supreme 305
SUPREME COURT OF INDIA
(S. H. Kapadia, CJ., Swatanter Kumar, J.)
Society For Un-Aided Private Schools of Rajasthan — Petitioner(s)
versus
U.O.I. & Anr. — Respondent(s)
Writ Petition (C) No. 95 of 2010 with writ Petition (C) Nos. 98 of 2010, 126 of 2010, 137 of 2010, 228 of 2010, 269 of 2010, 310 of 2010, 364 of 2010, 384 of 2010, 21 of 2011, 22 of 2011, 24 of 2011, 47 of 2011, 50 of 2011, 59 of 2011, 83 of 2011, 86 of 2011, 88 of 2011, 99 of 2011, 101 of 2011, 102 of 2011, 104 of 2011, 115 of 2011, 118 of 2011, 126 of 2011, 148 of 2011, 154 of 2011, 176 of 2011, 186 of 2011, 205 of 2011, 238 of 11 and 239 of 11
Decided on 12-04-2012
(Majority view per S.H.Kapadia, CJI)

IMPORTANT POINTS
The Act is constitutionally valid.
Sections 12(1)(c) and 18(3) will not apply to unaided minority educational institutions.

Headnote:(a) Interpretation – Constitutional validity – Test is whether the impugned law infringes a fundamental right within the limits justified by the directive principles or whether it goes beyond them – Fundamental rights are required to be interpreted in the light of the directive principles – Legislation not infringing Fundamental Rights as limited by Directive Principles – Not open to Courts to enquire further – Being constitutional and being desirable are not same. (Paras 3 and 4)

        (1950) 341 US 494; (1878) 5 I.A. 178 – Relied upon

        (b) Right of Children to Free and Compulsory Education Act, 2009 – Title – “Free” stands for removal by the State of any financial barrier that prevents a child from completing 8 years of schooling – “Compulsory” stands for compulsion on the State and the parental duty to send children to school – Act to give effect to Article 21A of the Constitution. (Para 5)

        (c) Constitution of India – Article 21A – Right to live in Article 21 covers access to education – Article 21A was enacted to give effect to Article 45 of the Constitution –It gives right to the State to provide by law “free and compulsory education” – If an educational institution goes beyond “charity” into commercialization, it would not be entitled to protection of Article 19(1)(g). (Para 9)

        (1952) SCR 889; (2002) 8 SCC 481 – Relied upon

        (d) Right of Children to Free and Compulsory Education Act, 2009 – The Act is child-centric and not institution-centric. (Para 9)

        (e) Constitution of India – Article 21A – Deals with access to education – However, the law made thereunder has to meet the test of reasonableness as enshrined in Articles 14 and 19. (Para 10)

        (1975) 2 SCR 832; (1978) 1 SCC 248; (2010) 10 SCC 96; (2002) 8 SCC 481; (2005) 6 SCC 537 – Relied upon

        (f) Right of Children to Free and Compulsory Education Act, 2009 – Section 12(1)(c) – The provision puts an obligation on the unaided non-minority school to admit 25% children in class I – Cannot be termed as an unreasonable restriction – Not a transgression on any constitutional limitation. (Para 10)

        (g) Right of Children to Free and Compulsory Education Act, 2009 – Section 12(1)(c) r/w section 2(n)(iv) – The State, while granting recognition to private unaided non-minority school, may specify permissible percentage of seats to be earmarked for children who may not be in a position to pay their fees or charges – Cannot be said to be unreasonable. (Para 10)

        (2002) 8 SCC 481 – Relied upon

        (h) Right of Children to Free and Compulsory Education Act, 2009 – Section 12(1)(c) – The Act including Section 12(1)(c) in its application to unaided non-minority school(s), the same is saved as reasonable restriction under Article 19(6) – T.M.A. Pai Foundation and P.A. Inamdar deal with higher education – Section 12(1)(c) is not contrary to these decisions. (Para 12)

        (2003) 6 SCC 697 – Referred

        (i) Right of Children to Free and Compulsory Education Act, 2009 – Section 12(1)(c) – Could apply only to day scholars – Cannot be extended to boarders – Government directed to issue necessary guidelines u/s 35 of the Act. (Para 13)

        (j) Right of Children to Free and Compulsory Education Act, 2009 – Sections 12(1)(c) and 18(3) – These provisions infringe the fundamental freedom guaranteed to unaided minority schools under Article 30(1) – Applying principle of severability these sections will not apply to unaided minority schools. (Para 20)

        1957 SCR 930 – Relied upon

       (Minority view, per K. S. Radhakrishnan, J.)

        (k) Constitution of India – Article 21 – Right to education flows from and is a fundamental right under Article 21 – Right to free education is available only children up to 14 years of age. (Para 5)

        (1993) 1 SCC 645 – Relied upon

        (1992) 3 SCC 666 – Referred

        (l) Interpretation of statutes – Subject matter before the Legislature, facts existing at that time are relevant factors in ascertaining the object and purpose of the Legislature – Law Commission’s report is another source where applicable. (Para 16)

        [1892] AC 498; (1989) 2 SCC 95; (1988) 4 SCC 419; (1976) 4 SCC 190; (1999) 7 SCC 435 – Relied upon

        (m) Educational Law – State may grant aid or recognition accompanied by certain restrictions or conditions which must be followed as essential to the grant of such aid or recognition. (Para 29)

        (2005) 6 SCC 537 – Relied upon

        (2002) 8 SCC 481; (1992) 1 SCC 558; (2003) 6 SCC 697 – Referred

        (n) Socio-economic rights – Such rights, even if raised to the status of constitutional rights, available only against State – Private sectors cannot be forced to bear the burden. (Para 57)

        1959 SCR 995; (2011) 7 SCC 179; (1974) 1 SCC 717; (1963) 3 SCR 837; (1982) 3 SCC 235; (1997) 6 SCC 241; (1995) 3 SCC 42; (1996) 4 SCC 37; (1998) 4 SCC 117; (1985) 3 SCC 545; (1989) 1 SCC 101; (1989) 4 SCC 155; (1997) 11 SCC 121; (1984) 3 SCC 161; 1998 (1) SA 765 (CC); 2001 (1) SA 46 (CC); 2002 (5) SA 721 (CC); 1996 (4) SA 744 (CC); 2001 (7) BCLR 652 (CC) ; 2005 (5) SA 3 (CC) ; Case No.15.789 Decision No.916 (1999)(SA); (53) D.L.R. (4th) 171(Canada) – Referred

        (140) 2007 DLT 698 – Cited with approval

        (o) Socio-economic rights – Any law for implementing State policy even if included in Ninth Schedule can be challenged if violative of fundamental rights – Even curtailing rights under Article 19(1)(g) has its limitations – State in order to achieve socio-economic rights, can remove obstacles by limiting the fundamental rights through constitutional amendments. (Paras 60, 63, 64 and 71)

        (2007) 2 SCC 1; (1951) 2 SCR 525; (2008) 6 SCC 1 – Relied upon

        (p) Right of Children to Free and Compulsory Education Act, 2009 – Section 12(1)(c) – Principles laid down by Pai Foundation and Inamdar cannot be undone by statutory provisions like Section 12(1)(c) – Even Article 21A of the constitution has caste burden on the State. (Para 88)

        (2002) 8 SCC 481; (2005) 6 SCC 537 – Relied upon

        (1992) Supp. 3 SCC 212; (1997) 6 SCC 538; (1999) 7 SCC 209; (2006) 8 SCC 212; 1981 SCC Supp. (1) 87; AIR 1955 SC 661; (2003) 4 SCC 399; 321 U.S. 649 (1944) – Referred

        (q) Constitution of India – Article 21A – The State cannot offload or outsource its obligation to private State sectors like unaided private educational institutions – It cannot also coerce them to act on the State’s dictate. (Para 96)

        [2011] ZACC 13 – Referred

        (r) Constitution of India – Article 21A – Absence of the preposition “for” in Article 21A makes the duty on the State imperative – State has, therefore, to “provide” and “not provide for” education through unaided private educational institutions – Article 21A does not cast any obligation on the private unaided educational institutions to provide free and compulsory education to children of the age 6 to 14 years. (Paras 101 and 105)

        (1980) IR 102; (2009) 6 SCC 398 – Relied upon

        (s) Right of Children to Free and Compulsory Education Act, 2009 – Section 12(1)(c) – No distinction or difference can be drawn between unaided minority and non-minority schools with regard to appropriation of quota by the State or its reservation policy. (Para 110)

        (t) Right of Children to Free and Compulsory Education Act, 2009 – Section 12(1)(c) – Casting a burden on private unaided educational institutions to admit and teach children at State dictate, on a fee structure determined by the State would abridge and destroy the freedom guaranteed under Article 19(1)(g) – It is contrary to Pai Foundation and Inamdar. (Para 110 and 114)

        (u) Right of Children to Free and Compulsory Education Act, 2009 – Section 12(1)(b) – In its application to aided schools (minority and non-minority) the provision is constitutionally valid. (Para 122)

        (v) Right of Children to Free and Compulsory Education Act, 2009 – Section 12(1)(c) – Section 12(1)(c) and other provisions of the Act are directory for unaided educational institutions – However they are bound by the law declared by Pai Foundation and Inamdar. (Para 128)

        (w) Right of Children to Free and Compulsory Education Act, 2009 – Sections 13, 14(2), 15, 16, 29 and 30 – These provisions are constitutionally valid. (Paras 130 to 132, 135 and 136)

       Facts of the case:

        Constitutional validity of the Right of Children to Free and Compulsory Education Act, 2009 and its applicability to un-aided non-minority private schools has come up for consideration in these appeals.

       Finding of the Court:

        The Act is constitutionally valid.