Hon'ble PATNAIK, J.—This is a reference made by a three-Judge Bench of this Court by order dated 06.09.2010 in Society for Unaided Private Schools of Rajasthan vs. 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 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.

2. Clause (5) of Article 15 of the Constitution reads as 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 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 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 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 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 in Ashoka Kumar Thakur vs. 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. 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. This batch of writ petitions 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.

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 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 Unaided Private Schools of Rajasthan vs. 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,

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