CASE STUDY

ON

SOCIETY FOR UNAIDED PRIVATE SCHOOLS OF

RAJASTHAN V. UNION OF INDIA
(2012)
(by IRAC METHOD)

1
Submitted by: Trinity Nagpal
Roll no 6
LLB 5th semester
(Law of Education)
 Contents

1. Introduction………………………………………………………………………3

2. Facts of the case………………………………………………………………….3

3. Issue of the case………………………………………………………………….4

4. Rule of law applied………………………………………………………………4

5. Analysis………………………………………………………………………….7

6. Conclusion………………………………………………………………………11
INTRODUCTION

The Right of Children to Free and Compulsory Education 2009, hereinafter referred to as
RTE Act was enacted to ensure free and uniform education for all children, particularly
those belonging to marginalized and underprivileged sections of the society. In accordance
with the purpose of the Act, there was a mandate for all private schools to allocate 25% of
the seats in Class 1 with children from disadvantaged groups.

The instant case relates to the displeasure of the private schools in Rajasthan, in response
to this mandate. These schools petitioned that this provision of the RTE Act interfered with
their constitutional right to carry on any business or trade as per Article 19(1)(g) of the
Constitution. Petitioners argued that RTE Act was an unreasonable restriction for Article
19(1)(g).

Education is the primary criterion for social and economic development of a group. The
Supreme Court in Unnikrishnan v State of Andhra Pradesh has recognized education as
implied fundamental right. 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. Correspondingly, the measures are undertaken under the RTE
Act.

The present case analysis of Society of Unaided Private Schools of Rajasthan v Union of
India (2012) 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 analysis has been carried out using the IRAC method (Issue, Rule of law, Analysis and
Conclusion).

FACTS OF THE CASE

An association consisting of several private and unaided schools in Rajasthan filed a writ
petition challenging the validity of the section 12(1) (c) of RTE 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 Maharashtra, the state cannot
impose any constitutional obligation on them to reserve the admissions and adhere to state
fee regulations.

The Society in this case challenged the constitutionality of section 12 of the RTE Act on
the basis that imposing regulatory requirements on private schools violated the right to
practice any profession or occupation free from government interference under Article 19
of the Constitution, and the right of minority groups to establish and administer schools
under Article 30 of the Constitution.

Judgement
Supreme Court in the instant matter upheld the constitutional validity of section 12 of
Right to Education act, 2009 requiring even the private unaided schools, except minority
schools, to admit 25 % of student for unprivileged and weaker background.

ISSUE OF THE CASE

The main issue before the Court was the constitutionality of the RTE Act, with two
primary questions:

1. Whether requiring private schools to satisfy mandatory quotas violated Article 19 of the
Constitution, which guarantees the right to practise any profession or occupation.

2. Whether requiring minority private schools to satisfy quotas violates Article 30 of the
Constitution, which protects the right of minority groups to establish and administer
private schools.

RULE OF LAW
The following provisions of law have been applied by the Court in deciding this case.

Article 21A of the Indian Constitution

“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.” as per the 86th
Amendment of the Constitution in 2010.

Article 19 (1)(g) of the Indian Constitution

“All citizens shall have the right to practise any profession or to carry or to carr on any
occupation, trade or business.”

Articles 29 (2) of the Indian Constitution

“No citizen shall be denied admission into any educational institution maintained by the
State or receiving aid out of State funds on grounds only of religion, race, caste, language
or any of them.”

Article 30 of the Indian Constitution

“(1) All minorities, whether based on religion or language, shall have the right to
establish and administer educational institutions of their choice.

(1A) In making any law providing for the compulsory acquisition of any property of an
educational institution established and administered by a minority, referred to in clause
(1), the State shall ensure that the amount fixed by or determined under such law for the
acquisition of such property is such as would not restrict or abrogate the right guaranteed
under that clause.

(2) 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 or language.”

Section 12 (1)(c) of Right of Children to Free and Compulsory Education 2009

“A 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 education till its
completion”

Article 26 of Universal Declaration of Human rights (Right to Education)

“1. Everyone has the right to education. Education shall be free, at least in the
elementary and fundamental stages. Elementary education shall be compulsory. Technical
and professional education shall be made generally available and higher education shall
be equally accessible to all on the basis of merit.
2. Education shall be directed to the full development of the human personality
and to the strengthening of respect for human rights and fundamental freedoms. It shall
promote understanding, tolerance and friendship among all nations, racial or religious
groups, and shall further the activities of the United Nations for the maintenance of peace.
3. Parents have a prior right to choose the kind of education that shall be given to
their children.”

Article 28 of Convention on Rights of child

1. States Parties recognize the right of the child to education, and with a view to
achieving this right progressively and on the basis of equal opportunity, they shall, in
particular:

(a) Make primary education compulsory and available free to all;

(b) Encourage the development of different forms of secondary education, including

general and vocational education, make them available and accessible to every child, and
take appropriate measures such as the introduction of free education and offering
financial assistance in case of need;

(c) Make higher education accessible to all on the basis of capacity by every appropriate
means;

(d) Make educational and vocational information and guidance available and accessible
to all children;

(e) Take measures to encourage regular attendance at schools and the reduction of drop-
out rates.
2. States Parties shall take all appropriate measures to ensure that school discipline is
administered in a manner consistent with the child's human dignity and in conformity with
the present Convention.

3. States Parties shall promote and encourage international cooperation in matters

relating to education, in particular with a view to contributing to the elimination of
ignorance and illiteracy throughout the world and facilitating access to scientific and
technical knowledge and modern teaching methods. In this regard, particular account
shall be taken of the needs of developing countries.

Article 13 and 14 of International Covenant on Economic, Social and Cultural rights

Article 13:
“Everyone has the right to education. Primary education should be compulsory and free to
all.”

Article 14:
“Those States where compulsory, free primary education is not available to all should
work out a plan to provide such education”

ANALYSIS
In its majority decision, the Court upheld the constitutionality of the mandatory quota
as it applies to private and state-run schools. Therefore, the Court decided that the
government may constitutionally require private schools to reserve 25% of its
admission places for students from disadvantaged backgrounds.

The Court reasoned that the RTE Act is “child centric and not institution centric”,
meaning that the provision of education to all children is a priority, irrespective of
the fact that it might burden private schools. The court reiterated the importance of
Article 21-A, and found that the burden on private schools to satisfy the quota was
irrelevant in light of the importance of the right to education.

The Court reiterated that the State’s primary obligation is to provide for free and
compulsory education to all children, particularly those who cannot afford primary
education. Although there is a right to establish private schools under Article 19,
which guarantees the right to practise any trade or profession, the Court held that this
right only exists where the school remains charitable and not for profit.
Because establishing a private school under Article 19 supplements the primary
obligation of the State, the Court held that the State can regulate private schools by
imposing reasonable restrictions in the public interest under Article 19(6). The Court
further concluded that the 25% quota imposed on private schools is in the public
interest and is a reasonable restriction for the purposes of Article 19(6). Therefore,
the 2009 Act was deemed to be constitutional and enforceable against private
schools.

However, the Court made a distinction between private schools and private
minority schools, established under Article 30 of the Constitution, and held that the
government cannot require private minority schools to satisfy a 25% quota. To do so
would constitute a violation of the right of minority groups to establish private
schools under Article 30. The court reasoned that Article 29(1) of the Constitution
protects the right of minorities to conserve their language, script or culture, and
Article 30(1) protects their right to establish and administer schools of their choice.
Therefore, imposing a quota on such schools would result in changing their character
and would therefore violate these rights.

This case affirms that the authority of the State to fulfil its obligations under the right
to education can be extended to private, non-State actors. According to the majority
opinion, the State has an obligation to provide free and compulsory primary
education, and to ensure educational equality. Because the State has the authority to
determine the manner in which it discharge this obligation, it can elect to impose
statutory obligations on private schools so long as the requirements are in the public
interest.

The broad nature of the State’s authority in this regard is demonstrated in the
dissenting opinion of Judge Radhakrishnan, which found that the RTE Act should
not apply to unaided private schools. The State has primary obligation to protect and
fulfil the right to education and, according to the dissenting opinion, non- State actors
merely have a negative duty not to violate the right to education.

Case laws referred

1. Miss Mohini Jain v State of Karnataka & Others [1992] AIR1858
In this decision, the India Supreme Court the Court held charging of a capitation fee
by the private educational institutions violated the right to education, as implied from
the right to life and human dignity, and the right to equal protection of the laws. The
Court also held that private institutions, acting as agents of the State, have a duty to
ensure equal access to, and non-discrimination the delivery of, higher education.

2. Environmental & Consumer Protection Foundation v Delhi Administration

& Others [2012] INSC 584
In this case, the India Supreme Court held that, under the Right of Children to Free
and Compulsory Education Act of 2009 and the Indian, central, state and local
governments have an obligation to ensure that all schools, both public and private,
have adequate infrastructure.

3. Pramati Educational and Cultural Trust & Others v UOI 2021

In this case, the India Supreme Court upheld the constitutionality of Articles 15(5) and
21-A of the Constitution, so far as they require unaided private schools to provide
compulsory education for children aged 6-14. However, the Court further held that
private schools, particularly private minority schools, could not be compelled to
provide free, compulsory education to children belonging to disadvantaged groups, as
this would constitute a violation of the right of minority groups to establish private
schools under Article 30 of the Constitution.

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 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. 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.

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. 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 Nadu, 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.
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 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.

CONCLUSION
Supreme Court in the instant matter upheld the constitutional validity of section
12 of Right to Education act, 2009 requiring even the private unaided schools,
except minority schools, to admit 25 % of student for unprivileged and weaker
background.

Justice Radhakrishnan was right in arguing that the enactment of 86 th

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 from 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.