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Pramati Educational & Cultural Trust ® & Ors. Versus Union of India & Ors.

2014 (5) TMI 1109 - SUPREME COURT

Admission to educational institutions including private educational institutions - 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 - Held that:- Constitution (Ninety third Amendment) Act, 2005 inserting clause (5) of Article 15 of the Constitution and .....

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d on behalf of Muslim Minority Schools Managers’ Association is allowed and Writ Petition filed on behalf of non-minority private unaided educational institutions are dismissed. - WRIT PETITION (C) No. 416 OF 2012 WRIT PETITION (C) No. 152 OF 2013, WRIT PETITION (C) No.1081 OF 2013, WRIT PETITION (C) No. 60 OF 2014, WRIT PETITION (C) No. 95 OF 2014, WRIT PETITION (C) No.106 OF 2014, WRIT PETITION (C) No.128 OF 2014 - Dated:- 6-5-2014 - WRIT PETITION (C) No. 416 OF 2012 WRIT PETITION (C) No. 152 .....

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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 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 .....

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al 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 educati .....

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f 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 su .....

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ry 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 c .....

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se (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 21A has to be decided by this 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 B .....

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ng 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. (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. Validity of clause (5) of Article 15 of the Constitution Contentions of learned counsel for the petitioners: 5. Mr. Mukul Rohatg .....

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mp; Ors. v. Union of India & Ors. [(1980) 3 SCC 625] Chandrachud, CJ., writing the judgment for the majority of the Judges of the Constitution 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 emasculation of the rights to liberty and equ .....

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by Article 14 or Article 19 of the Constitution. Mr. Rohatgi submitted that Article 19(1)(g) of 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 and educationally backward classes of citizens or for the Scheduled Castes or the S .....

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e in Kesavananda Bharati (supra), it will not be open to immunize legislation made by Parliament 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 amend the Constitution at will, with requisite voting strength, so as to make any kind of laws that excludes Part III including the power of judicia .....

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), a basic feature of the Constitution and, therefore, the Ninety-third Amendment of the Constitution 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 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 .....

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itutions 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 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 .....

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icle 19(1)(g) of the Constitution within the meaning of Article 19(6) of the Constitution. He referred to the observations of this Court in P.A. Inamdar & Ors. v. State of Maharashtra & Ors. [(2005) 6 SCC 537] in paragraph 125 at page 601 that 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 and that unaided institutions, as .....

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stitutions of excellence. He submitted that in T.M.A. Pai Foundation (supra), the majority of the Judges have held that private 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 private educational institutions under Article 19(1)(g) of the Con .....

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of India to strive towards excellence in all spheres of individual and 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 that clause (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 .....

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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 III of the Constitution. He submitted that in the aforesaid majority judgment in Minerva Mills case (supra) authored by Chandrachud, CJ., it has also been observed that Parts III and IV together constitute the core of our Constitution and anything that destroys the balance betwee .....

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d for determining whether a constitutional amendment is violative of basic structure in so 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 conclusion is that the width of the power of the State vested by the constitutional amendment is s .....

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right 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, 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 .....

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(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) No.160 of 2014 submitted that in the case of Edward A. Boyd 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 .....

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a & 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 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 social .....

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minority educational institutions referred to in clause (1) of Article 30 of the Constitution. He argued that there is absolutely 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. He relied on the decision of this Cour .....

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section of the population but to give to the minorities a sense of security and 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 institutions as well as to minority institutions and minority institutions must be allowed to do what th .....

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en as the central golden thread in the fabric depicting the pattern of the scheme in our Constitution. Contentions of learned counsel for the Union of India: 14. Mr. Mohan Parasaran, learned Solicitor General, 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 o .....

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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 Bench of this Court in Islamic Academy of Education & Anr. v. State of Karnataka & 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 f .....

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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 the Scheduled Castes and the Scheduled Tribes insofar as suc .....

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g) of the Constitution. 15. Mr. Parasaran next submitted that minority institutions 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 exclusion of minority educational institutions from clause (5) of Article 15 of the Constitution is not .....

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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 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 Constitut .....

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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 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 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 .....

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on, 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) 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 o .....

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l opportunity in educational institutions, clause (5) has been 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 of citizens or for the Scheduled Castes and the Scheduled Tribes to study in educational institutions and equality of opportunity is .....

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ld 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 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 Kerala & Anr. v. N.M. Thomas .....

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rry 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 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 .....

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ualifications 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………………….. 68. It would be unfair to apply the same rules an .....

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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 applied 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 an .....

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titution to establish and administer private educational institutions, as per the judgment of this Court in T.M.A. Pai Foundation (supra), includes the right to admit students of their choice 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 students belonging to weaker and backward sections of the society were granted freeships or scholarships, if not granted by the Governm .....

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t speaking through 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 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 .....

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le 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 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 seats can also not be held to be a regulatory .....

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not deriving any aid from State 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. Inamdar (supra), therefore, is that the appropriation of seats by the State 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 und .....

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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 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 .....

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in merit as the criterion of admission by voluntarily agreeing for seat-sharing with the State or adopting selection based on common entrance test of the State and that there are also observations in T.M.A. Pai Foundation (supra) to say that 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 vi .....

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aw under clause (6) of Article 19 of the Constitution. As this Court has held in T.M.A. Pai Foundation (supra) and P.A. Inamdar (supra) the State can 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 judgments that nominating students for admissions w .....

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nder Article 19(1)(g) of the Constituion. We, therefore, do not find any merit in the submission of learned counsel for the 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. 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 .....

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(5) of Article 15 of the Constitution will further show that such law has to be limited to making a special provision relating to admission to private educational institutions, whether aided or unaided, by the State. Hence, if 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 T.M.A. Pai Foundation, such a law would not be within the .....

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zens 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 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 Co .....

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ovisions for admission of socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. 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 a law wou .....

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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. 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 educationally backward classes of citizens or for the Scheduled Castes and the Sc .....

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rivate educational institutions alike it is 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 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 ali .....

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n, race, caste, language or any of them. 30. Right of minorities to establish and administer educational institutions-(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. (1A) ……………………………………………… (2) The state shall not, in granting aid to educational institutions, discriminate .....

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in paragraph 149 at page 582 and 583 of the SCC: 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 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 injunction against the state not to discriminate against the minority educ .....

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. 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 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 will not be only on grounds of religion etc., but i .....

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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 stud .....

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epending on the type of institution and education is desirable, and indeed, necessary, to promote the constitutional guarantee enshrined in both Article 29(2) and Article 30. 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 percentage of seats will de .....

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elong to communities other than the minority community which has established the institution, may affect the 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 educationally backward classes of citizens or the Scheduled Castes and .....

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ution, and, therefore, the exclusion of minority educational institutions from Article 15(5) is not violative of Article 14 of the Constitution. 27. We may 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 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 an .....

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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 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 Foundation at .....

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a duty under Article 51A(j) to strive towards excellence in all spheres of individual and collective 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 opinion, is not founded on the experience of educational institutions in India. Educational insti .....

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mised by admission from amongst the backward classes of citizens and the Scheduled Castes and the 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 of the individual and the unity and integrity of the nation . The goals of fraternity, unity and integrity of the nation cannot be achieved unless the backward classes of citizens and the Scheduled Castes and the Scheduled Tribe .....

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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) of Article 15 of the Constitution is valid. Validity of Article 21A of the Constitution Contention of the learned counsel for the petitioners: 30.The second substantial question of law which we are cal .....

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, 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. (supra) by a three-Judge Bench of this Court. Two learned Judges S.H. Kapadia C.J. and Swatanter Kumar J. held that the 2009 Act is constitutionally valid and shall apply to the following: (i) .....

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ever, held that the 2009 Act, in particular Sections 12(1)(c) and Section 18(3), infringe the fundamental rights guaranteed to unaided minority schools 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 schools to provide free and compu .....

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ct shall apply to conferment of rights on children to free and compulsory education. 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 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 P .....

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(C) No.128 of 2014, submitted that word State used in Article 21A of the Constitution would mean the State 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.D. Shamdasani v. The Central Bank of India Ltd. (AIR 1952 SC 1 .....

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n is available against only the State and not against private individuals. He submitted that, therefore, the word State in Article 21A of the Constitution would not include 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 compulsory education for .....

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t mean that the obligation of the State to fund free and compulsory education to all children upto the age of 14 years could be passed on by the State to private unaided educational institutions. He submitted that Article 21A, if construed to mean 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 unaided schools, Article 21A of the Constitution would abrogate the right of private .....

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to Article 21A of the Constitution and not by reference to clause (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 disadvantaged group in the neighborhood and provide free and compulsory education till its completion is violative of the right of p .....

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. 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 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 .....

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the Constitution. They submitted that the majority judgment of this Court in Society for Unaided Private Schools of Rajasthan v. 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 provisions of the Act shall apply to conferment of r .....

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5 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 of 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 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 .....

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hat 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 educational institutions are also State within the meaning of 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 priva .....

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oundation (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 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 educa .....

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accordingly the 2009 Act was amended by the Right of Children to Free And Compulsory Education (Amendment) Act, 2012, so as to provide in subsection (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. Opinion of the Court on Article 21A of the Constitution and on the validity of 2009 Act: 39. We have considered the submissions of .....

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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 re .....

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s 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. 3. After taking into consideration the report of the Law Commission of India and the recommendations of the Standing Committee of Parliament, the proposed amendments in Part III, 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 ag .....

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children. 4. The Bill seeks to achieve the above objects. MURLI MANOHAR JOSHI. 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 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 consti .....

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y, 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 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 manner in which it will discharge its .....

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each other, they should be so interpreted that, if 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 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 comp .....

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d 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 permissible and would not be inconsistent with the rights under Articles 19(1)(g) of the Constitution. In P.A. Inamdar (supra), however, this Court explained that there was nothing in this Court s judgment in T.M.A. Pai Fo .....

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alidity 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. 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 .....

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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 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 children of poorer, weaker and backward sections of the s .....

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Reasons of the Bill which 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 the creation of a just and humane society can be achieved 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 .....

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ceive 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 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 o .....

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e 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, 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) .....

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all have the right to establish and administer educational institutions of their choice. 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 has no power to force admission of students from amongst non-minority communities, particularly .....

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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-committee, .....

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e 2009 Act, we find that Section 12(1)(b) read with Section 2(n) (iii) 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 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 obligat .....

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sections 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 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 t .....

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