DR.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY

2019-20

“Jurisprudence”
CASE COMMENT
ON
SOCIETY FOR UNAIDED PRIVATE SCHOOLS OF RAJASTHAN V. UNION OF INDIA
(2012)

Submitted to: Submitted by:

Mr. Manwendra Kr. Tiwari Saharsh Chitransh
Assistant Professor (Law) Enrollment Id- 170101112
Dr. Ram Manohar Lohiya National Law University B.A. LL.B.(Hons.) Vth Semester
 TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................................................... 1

1. FACTS OF THE CASE .................................................................................................................................... 1

2. CASE SPEAK .................................................................................................................................................. 2

3. CONTROVERSIAL ASPECT ........................................................................................................................ 2

DISSENTING OPINION ................................................................................................................................... 3

BACKGROUND ............................................................................................................................................................ 4

1. POSITION OF LAW ........................................................................................................................................ 4

1.1 IN INDIA ................................................................................................................................................ 4

1.2 INTERNATIONAL LAW AND COMMON LAW ................................................................................ 4

2. LEADING UP TO THE JUDGEMENT .......................................................................................................... 5

ANALYSIS OF THE DICTUM ..................................................................................................................................... 6

1. LEGITIMATE AIM, UNCONSTITUTIONAL METHOD? ............................................................ 6

2. ALTERING THE BASIC STRUCTURE ......................................................................................................... 7

3. PROBLEMS OF PURPOSIVE INTERPRETATION ...................................................................................... 8

PROBLEM OF HYPER INTEGRATION......................................................................................................... 9

CONCLUSION……………………………………………………………………………10
 INTRODUCTION

Indian Constitution is a social welfare document which incorporates a structured and

definite manifestation of socio-economic rights under directive principles. Welfare laws
passed by the parliament promises to make the accessibility of socio-economic resources to
less privileged groups. Education is the primary criterion for social and economic
development of a group. The Supreme Court in Unnikrishnan v State of Andhra Pradesh has
recognised education as implied fundamental right.1 The logic and reasons behind the actions
are equality of rights, a safeguard for protection of right, promotion of fair and equal
opportunities and as measure for empowerment.2 Correspondingly, the measure undertaken
under the RTE act
The present case analysis of Society of Unaided Private Schools of Rajasthan v Union of
India deals with the observations relating to unaided non-minority schools under the RTE
Act, 2009. The case comment has approached the analysis of the dictum in the present case in
three levels. First, it seeks to review the reasoning occupied the court as against the spirit of
law or public policy. Second, it looks at the implication of the judgment from angle of basic
structure doctrine in relation to prior similar cases decided on the issue. Thirdly, it discusses
the perspective the judgment and discusses its problems related to purposive interpretation.
The project finally analyses whether it is constitutionally permissible to abrogate an
entrenched and seminal constitutional provision by means of an ordinary law.

1. FACTS OF THE CASE

An association consisting of several Private schools in Rajasthan filed a writ petition
challenging the validity of the section 12(1) (c) of Right to education Act mandating
admission on unaided private schools on the grounds that the provision of the act impinges
upon their right to run an educational institution, in absence of governmental intervention
guaranteed, under article 19(1) (g) of the constitution. The petitioners argued that such
conditions constitute serious infringement on the autonomy of the institutions and therefore
according to the judgement in P.A. Inamdar v. State of Maharashtra3, the state cannot impose

1
UNNIKRISHNAN V. STATE OF ANDHRA PRADESH, AIR (1993) 217; See also MOHINI JAIN V. STATE OF
KARNATAKA, AIR (1992) 1858
2
TMA PAI FOUNDATION V. STATE OF KARNATAKA, (2002) 8 SCC 481
3
P.A. INAMDAR V. STATE OF MAHARASHTRA, AIR 2005 SCC 3226; The court in the case revisited TMA Pai
case and ruled that the right to establish an educational institution come under the ambit of right to trade and
profession and therefore the reservation cannot be enforced against a private unaided entity.

1
any constitutional obligation on them to reserve the admissions and adhere to state fee
regulations.4

2. CASE SPEAK
Supreme Court in the matter of Society of Unaided private Schools of Rajasthan v. Union
of India5 uphold the constitutional validity of section 12 of Right to Education act, 2009
requiring even the private unaided schools, except minority schools, to admit 25 percent of
student for unprivileged and weaker background.6

3. CONTROVERSIAL ASPECT
The verdict in the present case was given by Supreme Court bench consisting of, Chief
Justice S.H. Kapadia, Justice Radhakrishnan, and Justice Swantanter Kumar. The judgment
was devoid of unanimity whereby Jutice Radhakrishnan gave a dissenting minority
Judgment. The majority opinion of the court decided that the impugned act is constitutionally
valid and is applicable to private unaided schools too. The reasoning employed by the court is
as below:
First, the inclusion of Article 21A in the constitution makes it obligatory for the state to
provide free and compulsory elementary education. According to the court, the act in
question has been specifically enacted in order to effectively implement article 21A of the
constitution, which in literatim pledges power on state to determine, by law, the manner to
discharge such obligation under the act. Consequently, the state has freedom to fulfil its
obligation by including any type of schools, including the private unaided, under the ambit of
the act.7
Second, the majority opinion maintained that the act envisages an agreement of
reciprocity between state and parents. Consequently, it places an affirmative burden not only
upon state but also all stakeholders in the society.8 Therefore, the legal obligation to provide
education can be appropriately extended to private schools, where the unaided private schools

4
The validity of Article 15(5) and 21A of the constitution was also challenged. The matter to such extent was
referred to constitutional bench and for the immediate purposes, the two provisions were deemed to be valid,
(2012) 6 SCC 1. See also PRAMATI EDUCATIONAL & CULTURAL TRUST V UNION OF INDIA, (2014) 8 SCC 1.
5
SOCIETY OF UNAIDED PRIVATE SCHOOLS OF RAJASTHAN V UNION OF INDIA, (2012) 6 SCC 1;
6
The court declared the act as a child centric welfare action mandating private schools to provide free
elementary education to disadvantaged groups however; the disparagers of the act perceive it as a
infrastructure centric law putting financial burden on private entity.
7
The language of article 21A state that „‟ State shall provide free and compulsory education to all children
aged between 6 and 14 years in such manner as the State may, by law”. Therefore the Majority in the
Judgement opined that the State has been sufficiently powered by the article to recourse its obligation through
its own schools, government-aided schools or unaided private schools.
8
Reliance is placed on Art.51 (a) (k) of the constitution which creates an obligation on parents to ensure
elementary education for Children.

2
will supplement the primary duty of state to provide free and compulsory education also
ensuring better quality of education to children of unprivileged class.9

Third, the court accepted that the right to establish and administer an educational
institution including right to admit students, comes under the scope of Article 19(1)(g). The
majority however, denied the applicability of these principles to the fundamental right to
elementary education.10 Since, the act also seeks to remove the financial obstacles; the state
by law can regulate the activities of unaided private schools, including admission and
adherence to state determined fee structure, in the ambience of reasonable restrictions under
article 19(6).11

Dissenting Opinion

Justice Radhakrishnan departing from the majority view noted that any positive
obligation upon private non-state actors in Article 21A can be operationalised on the only on
principles of voluntariness, autonomy and consensus, implying the responsibility of the
proposition was meant to be laid solely on the state in strict and unambiguous provisions.
Such imposition of act and reservation of seats in unaided private schools on compulsion and
threats of non-recognition would amount to nationalisation of seats. He notes that primary
responsibility to provide free and compulsory education rests on state and not non state
actors.12 Also under article 51A (k), the guardian and other private entities are not obligated
but merely have duty to provide opportunities of education. He views that compelling private
institution, investing his own capital, would amount to serious infringement of their right
guaranteed under article 19 and would constitute critical curtailment of their autonomy for
the state. Reasonable restriction can be imposed in the interest of general public however; no
constitutional obligation can be placed.

9
Prashant Narang and Mimansa Ambastha, 25 per cent Reservation in Private Unaided Schools: Social Justice
or Expropriation?
10
The majority viewed that these principles are applicable only in context to higher and professional education
where the questions of merit and excellence are greater criterion of admission. Hence, the due weightier to
merit is not of any relevance in case of child taking admission in class I.
11
The Court also maintained that the Act may not be applicable towards aided-unaided minority schools that are
protected by Article 30(1). This right of minorities is not restricted by article 19(6).
12
Radhakrishnan J. held that the non-State actors only have a negative duty to not violate rights, and state
cannot by law cast upon a positive duty for realisation of those rights, such as the right to education.
3
 BACKGROUND

1. POSITION OF LAW
1.1 IN INDIA

The 86th (constitutional amendment) act, 2002 guaranteed the fundamental right to free
and compulsory education under Article 21A which made it obligatory on the state to create
provisions of education for children between 6 to 14 years up to elementary level. The
amendment was followed by the right to education act, 2009 to ensure and to give effect the
above amendment. The act requires the assurance of free education to all admitted children
by the government school and provides for a reservation of one-fourth admission seats for
children hailing from unprivileged and disadvantaged sections of society in the aided
institutions as well. The act prescribes certain norms to be compulsorily followed by the
schools to gain and maintain their legal recognition.

Article 12(1) (c) of the act was met with controversy and opposition due the extension of
legal obligation of 25% reserved quota for weaker groups to the non-state actors. Several
private schools challenged the unfair imposition of regulatory and infrastructural obligation
thereby violating their constitutional right to practice any profession u/a 19(1)(g)
unreasonably. The constitutional right of minority groups to establish and administer school
under article 30 of the constitution was also alleged to be violated through the
operationalisation of the act.

1.2 INTERNATIONAL LAW AND COMMON LAW

As also cited by the justice Radhakrishnan in his dissenting opinion that even in the
common law principles and International laws of positive morality the responsibility of
fulfilment of various socio economic rights and their enforcement lies categorically only
against state and are not available private unaided actors; including where such rights
constitutes a status of fundamental importance in the constitution.14 He stressed upon article
28 and 29 of UN convention on rights of child and maintained that there express inclusion of

14
Supra note 5.

4
private entities even from the convention‟s obligation.15 Further reliance was also made on
the common law cases like Grootboom case16 and the Treatment action campaign case.17

2. LEADING UP TO THE JUDGEMENT

The initial draft of article 21A was presented by the government in Rajya Sabha in year
1997 which formally contained a provision mentioning the constitutional limitation on state
to make a law mandating non-state entities to provide free education. However, in light of a
law commission report and Supreme Court‟s decision in Unnikrishnan v. State of Andhra
Pradesh, which laid down that right to establish and administer an education institution
cannot be considered a profession or trade under the meaning of article 19(1)(g) and further
affirmed the imposition of obligatory reservation of seats by state up to 50 percent seats for
free education, the proposed provision was consequently scrapped. Later, before the
enactment of 86th amendment, the eleven judges Supreme Court bench in TMA Pai
foundation v. State of Karnataka revisited the issue whereby overruling the previous case
held that state cannot require unaided institutions run by private groups to provide free
education or to regulate, by law, their establishment and administration for the enforcement
of their reservation policies.18 The argument that interpretation of drafting history of the
provision to be treated as the intention of the parliament to impose a legal obligation of
compulsory education on unaided schools was also dismissed by the court. Therefore, in
finality, before the 86th amendment the private educational actors were comforted with
maximum autonomy in their admission procedure read under article 19(1) (g).
In 2005, on petition by eminent India education P.A. Inamdar the Supreme Court held in
P.A. Inamdar v. State of Maharashtra that any state reservation policies cannot be enforced
against private unaided institutions.19 Following the judgment, Supreme Court again cleared
its stand on the applicability any imposition of restriction on unaided institutions under article
15(5) by ruling the Constitution (ninety-third amendments) Act, 2005 not violative of basic
structure doctrine to the extent of state maintained and aided educational institution in
Ashoka Kumar Thakur v. Union of India.20

15
The expression of socio-economic rights can also be found in the multiple international conventions like
Covenant on Civil and Political Rights 1966, U.N. Convention on Economic, Social and Cultural Rights 1966.
16
GOVT OF REPUBLIC OF SOUTH AFRICA V. GROOTBOOM, (2001) 1 SA 46 (CC);
17
MINISTER OF HEALTH V. TREATMENT ACTION CAMPAIGN, (2002) 5 SA 721 (CC);
18
Supra note 2.
19
P.A. INAMDAR V. STATE OF MAHARASHTRA, 2005 AIR (SC) 3226;
20
ASHOKA KUMAR THAKUR V. UNION OF INDIA, AIR 2008 SC 1; The question of constitution validity of 93rd
constitutional amendment to private unaided institution was left answered, to be decided in an appropriate

5
 ANALYSIS OF THE DICTUM

1. LEGITIMATE AIM, UNCONSTITUTIONAL METHOD?

The ambiguous tone in various case laws and provisions leaves the question of
permissibility of any impingement of a constitutional provision through an ordinary
legislation was left unanswered. Justice Kapadia‟s opined that the dictum laid down by the
court in TMA Pai case cannot be extended to the applications of Right to Education act as the
case did not categorically explore the connection between article 21A and 19(1)(g) in context
of reservation in unaided private institution.21 According to him, the operation of the above
case is restricted to the unaided higher educational institutions and not on the provisions for
the elementary education. The argument, however, seems unconvincing on many levels.
Justice Kapadia‟s response does not dwell into the scope and language of the article 19(1) (g),
which can be understood with multiple meaning for the same institution even for a same state
action.22 Correspondingly, although the objective of the state action in specific inclusivity of
schools as against the higher education institute is different but a qualitative reasoning for
such difference in implementing right to elementary education unrestricted under article
19(1) (g) is not provided.

Absence of any specific provision in the constitutional text which permits the imposition
of legal obligation on non state actors to provide free and compulsory education implies the
acceptance of legal principles of fundamental importance enumerated under article 19(1)(g)
in its original form and hence, impingement of which is difficult by means ordinary
legislative action. Practically, implementation of provisions in right to education act will
always be open ended and Compulsion on private entities to do so would amount to
nationalization of seats and would constitute serious infringement on the autonomy of the
institutions.23

case. The immediate case also laid down on the landmark principle of exclusion of creamy layer from
reserved class.
21
Anup Surendranath, the Right to Education Case: Was another Constitutional Amendment Required, Law and
other things, 1st May 2012. [http://lawandotherthings.blogspot.in/2012/05/guest-post-from-anup-surendranath-
right.html]
22
IBID.
23
Supra Note 21.

6
2. ALTERING THE BASIC STRUCTURE

The constitution vests in judiciary, the power to review the constitutional validity of all
amendments effected by parliament against ideals of spirit of constitution and public policy.
If such amendments violate any provision of fundamental importance forming the basic
structure of the constitution, the Supreme Court has power to declare it invalid to the extent.24
Correspondingly, fundamental rights constitute a seminal concept of Indian constitution and
abrogation of a right constituted under part III amounts to the altering of basic structure of the
constitution.
In I.R Coelho v. State of Tamil Nadu25, the then Chief justice Y.K. Sabharwal viewed
that article 14, 19 and 21 constitutes a golden triangle of fundamental rights and are part of
basic structure. Any impingement or obliteration of these essential features would involve the
application of basic structure doctrine.26 Further, Justice Bhandari in his dissenting opinion in
A. K. Thakur v Union of India articulated that this triangle of rights stands even above any
other provisions of part III of the constitution and every single facet of article 19(1)
constitutes basic structure. He argues that to the extent that private institutions are concerned
article 15(5) violates the basic structure.

Another aspect of violation of basic structure can be seen from Fali S. Nariman‟s
arguments in Pramati education and cultural trust v. Union of India. He builds upon Justice
Khanna‟s argument in Indira Gandhi v Raj Narain and maintains that article 14 is infringe
in event of placing a aided minority institution, unaided minority and an unaided private
institution at par. Under article 15(c), all minorities have been categorically classified by
constitution of India, which is not the case with private institutions which are not aided by
government. Such classification needs to be reasonable on some basis rather arbitrary.
Therefore, the equal treatment of aided and unaided educational schools in the act is equally
violative of basic structure. An act of parliament creates a situation of disequilibrium between
a directive principle of state policy and fundamental rights, i.e. 30(1) and 19(1) (g)
respectively; whereby giving importance to directive principles over Fundamental rights also

24
KESAVANANDA BHARTI V. STATE OF KERALA, AIR 1973 SC 1461
25
I.R COELHO V. STATE OF TAMIL NADU, (2007) 2 SCC 1
26
The court in this laid down the „fundamental rights test‟ to adjudicate upon the question involving basic
structure and further maintained that any law which transgresses its strict limitation and violates the golden
triangle of rights will be constitutionally invalid.

7
seems to have modified the feature of equality. The provision thus alters the equality and
creates a favoured position for minority groups, making them absolute in nature which
according to Ahmadabad St. Xavier’s College Society v. State of Gujarat.27

3. PROBLEMS OF PURPOSIVE INTERPRETATION

Aharon Barak‟s purposive approach of statutory construction to interpret the enactment in

light of its purpose of compulsory education was occupied by the court in its Judgment. 28 A
general rule of statutory interpretation says that initially conclusive reading should be given
to prima facie language of the provisions. A consultation to secondary interpretation is
occupied when the words of the statute are ambiguous and vague. If the words are free from
any ambiguity and are clear and conclusive, no reference to other means of interpretation is
needed. Indian courts have also viewed in Molar Mal v. Kay Iron Works (P) Ltd. that a
statute should be given the plain and normal meaning of its words construction unless such
construction leads to confusion.29
Firstly, As cited by Justice Radhakrishnan in his dissent that the language of Article
21A says “state shall provide” not “state shall provide for”, imposing constitutional
obligation categorically on state and not on non state private entities to ensure free and
compulsory education to children from less privileged and weaker groups. Considerably, the
constitution merely places moral duty on parents and guardians to provide sufficient
opportunities of education to their children under article 51A (k), it does not cast a
constitutional obligation per se. conclusively, the words of article 21A are plain and clear
thus there is no apparent need for structured purposive interpretation to supplement it with
external meaning and read as “provide for”.
Secondly, mere originalist reading of article 21A as a controlling factor on article 19
and vice versa will result in disintegration of two rights. A disintegration of constitutional
text can seen in the similar case of Kharak Singh v. State of U.P. where mere originalist
understanding between personal liberty under Art 21 and freedom to movement under Art
19(1)(d) was occupied. As a redressal of the problem, structural interpretation can be
employed by establishing objective purpose as against the subjective purpose under the
originalism and the court can harmonise the relation between article 21A and 19(1)(g).

27
AHMADABAD ST. XAVIER‟S COLLEGE SOCIETY V. STATE OF GUJARAT, AIR 1974 SC 1389
28
Barak talks about constitutional interpretation as a purposive enterprise. This starts from the point that the
constitution is an extra-ordinary legal document. While the same institution engages the interpretation of all
legal documents, but some other considerations are to be borne in mind while interpreting the constitution.
29
MOLAR MAL V. KAY IRON WORKS (P) LTD., 2000 (4) SCC 285.

8
 Alternatively, the court‟s interpretation also falls foul on originalist method of looking
into minds of the founding fathers and deriving the abstract intent to resolve the dispute.
Evidently from the earlier drafts of the article 21A, as already mentioned above, the state
cannot compel a private unaided institution to provide free and compulsory and also to
administer their admission process to some extent. Plethora of Indian case laws also criticises
and discourages any legal obligation to provide elementary education on private schools.

Problem of Hyper Integration

During the conceptualisation of textualism, structuralism and originalism in Purposive

interpretation is a conceptualisation, too much of engagement with structuralism without
engaging with textualism and originalism may lead to the problem of hyper integration.
Bennett Coleman v. Union of India and the following cases of freedom of speech expression
are long line of examples of hyper integration.30 Supreme Court in these cases have diluted
the scope Art 19(1)(g) by submerging the right to speech and expression under Art.19(1)(a).
It is undisputed that media also has business interest and does not merely practices individual
freedom of press. Due to the dilution of rights now any speech regulation that seeks to
manage the advertising has to be seen as regulating freedom of speech and expression.

Similarly, the extension 25 percent reservation to private unaided school may also
result in hyper integration. Supreme Court‟s acceptance of such reservation policies may
therefore result in an interpretation wherein Art 21A can be read as a restriction on the non-
state actors‟ freedom to practice trade and profession under Art 19(1)(g). Such hyper
integration of purposive interpretation can be avoided by structural interpretation of post
enactment history.

30
BENNETT COLEMAN V. UNION OF INDIA, 1973 AIR 106.

9
 CONCLUSION

Justice Radhakrishnan was right in arguing that the enactment of 86th amendment by the
parliament must be in ignorance of Supreme Court‟s decision in TMA Pai case. Unaided
school can be required to reserve a quota of one fourth seats in admission but half hearted
provisions leaves it open to constitutional challenges. The absence of specific provision and
Supreme Court‟s decision in TMA Pai case leaves it constitutionally unjustified to impose
legal obligation on the private unaided actors and the provisions incorporated in constitution
for the right to education go a long way in indicating the responsibility was laid solely and
imperatively upon the State in a clear and unambiguous tone. The Declaration of right to
education under Art 21A through 86th constitutional amendment mandates on the state to
provide free and compulsory education enables the states to adopt the model enshrined in
Right to Education Act. However, the paradox of business interest of the private school, their
constitutional guarantee to establish and administer educational institution under Art.
19(1)(g) against the imposition of reasonable restriction under Art. 19(6) read with 21A is
constitutionally invalid method.

Disagreeing form the majority opinion, there seems no need to interpret the restrictions
in Art. 19(1)(g) with consideration to directive principles as those would cause submersion of
rights and will result in dilution of constitutional rights. What is needed is a broad and liberal
structural interpretation of constitutional principles. While the court is yet to develop a
coherent approach to the role of legislative interpretation and legislative intent in
adjudication, the interpretative complexity and statutory limitation arising due to the model
employed by the state in order to ensure free and compulsory elementary education and the
view taken by the Supreme court in case laws before the Society for unaided private schools
of Rajasthan v. Union of India directs for a further requirement of a constitutional
amendment extending the obligation to non sate actor through specific constitutional
provision.

10