In the Society for Un-Aided Private Schools of Rajasthan v. Union of India, the Supreme Court has by a majority of 2-1 upheld the constitutionality of The Right of Children to Free and Compulsory Education Act, 2009. Chief Justice Kapadia Justice Swatantra Kumar formed the majority and Justice Radhakrishnan dissented. The central issue before the Court was whether the State, under s.12(1)(c) of the Act, could require unaided schools (minority and non-minority) to set aside 25% of their seats for children between 6-14 years from disadvantaged sections. All 3 judges agreed that such a requirement on unaided minority schools violated the protection granted to religious and linguistic minorities in Article 30(1). On the question of whether it would be constitutional to impose such a requirement on unaided non-minority schools, the majority found it to be permissible whereas Justice Radhakrishnan declared that a such requirement violated Article 19(1)(g) of the Constitution.
The manner in which the two opinions reach their respective conclusions on unaided non-minority schools is fascinating and I hope to briefly discuss some of those themes in this post.
1. Could the State have imposed this requirement on unaided non-minority schools through an ordinary law?
It is on this point that the disagreement between the majority and minority opinion is at its sharpest. Justice Radhakrishnan is of the view that since the scope of the protection enjoyed by unaided institutions under Article 19(1)(g) was clarified by a 11-judge bench in T.M.A Pai before the 86th Constitutional Amendment was passed by Parliament, the absence of a specific provision in Article 21-A giving the State such a power would preclude the imposition of the 25% requirement through an ordinary law.
The response of the majority, speaking through Chief Justice Kapadia, is that the judgment in TMA Pai cannot be used for such a reading because it was a decision that defined the scope of Article 19(1)(g) in the context of reservations in private higher education institutions under Article 15. The relationship between a law enacted under Article 21-A and Article 19(1)(g) according to the majority cannot be controlled by the interpretation given in TMA Pai.
The legislative history of Article 21-A finds prominence in Justice Radhakrishnan’s dissent. Indira Jaisingh argued that the removal of the specific provision [draft Article 21A-3] that prohibited the State from imposing any obligation on unaided schools was indicative of Parliament’s intention. Justice Radhakrishnan’s argument is that Parliament’s decision not to include a specific provision giving the State the power to regulate unaided non-minority schools in such a manner in light of the decision in TMA Pai leads to the opposite conclusion.
2) 25% of seats as a condition for recognition of schools.
For the majority, it is a reasonable restriction in the interest of the general public for the State under Article 19(6) to require schools to set aside 25% of their seats for children from disadvantaged section as a condition for granting recognition. However, for Justice Radhakrishnan it is impermissible to attach such conditions for granting recognition. Though the decisions in TMA Pai and Inamdar certainly permit the State to regulate certain matters in unaided non-minority institutions through the process of granting recognition, the requirement in the Right to Education Act, 2009 certainly falls outside the scope of such permissible regulation.
3) Nature of Balancing
The nature of balancing in the majority’s opinion between the mandate of the State to enforce the right to education under Article 21-A and the rights of the schools before the Court under Article 19(1)(g) leaves much to be desired. The majority opinion states that requirement to admit 25% of Class I students from disadvantaged sections cannot be seen as a constitutional transgression because the aim is to remove barriers for children who cannot access schools and not to restrict the freedom guaranteed under Article 19(1)(g). It does not tease out the implications for balancing the rights in question when stating that the Court is taking a child-centric approach in this case while it was an institution-centric approach in TMA Pai and Inamdar. It certainly does not explain why the State has greater lee-way in restricting the freedom under Article 19(1)(g) while providing for special measures in the context of primary education (to a wide range of beneficiaries) than when trying to provide reservations for OBCs and SC/STs in unaided higher educational institutions in the pre-Article 15(5) days. Undoubtedly a constitutional response can be constructed but unfortunately the majority opinion does not offer it.
4) Horizontal Application of Rights and the Use of Comparative Materials
One of the central concerns in the case was whether the State could not transfer its obligation to provide free and compulsory education to private parties. Justice Radhakrishnan refers to the arguments raised on the horizontal application of rights in the Indian Constitution and the State having the power to place such a requirement on private parties through a combined reading of Articles 21-A and 15(3). Justice Radhakrishnan is of the view that there can be no positive duties imposed on private parties in the realisation of socio-economic rights and the role of private parties is limited to negative duties to not infringe or take away the guaranteed rights. In support of his argument that the positive obligation to implement socio-economic rights is solely on the State, Justice Radhakrishnan draws upon the Supreme Court’s jurisprudence on the right to food, health, shelter etc. in addition to foreign cases like Soobramoney, Grootboom and TAC from the South African Constitutional Court and the decision of the Tribunal Supremo de Venezuela in Cruz del Valle Bermudez.
The majority, however, is of the view that since the text of Article 21-A contemplates the enforcement of the right to primary education through a law, the State has the power and the discretion to determine the contents of the law, subject to satisfying the test of reasonableness. For the majority, the Act clearly satisfies the test of reasonableness under Articles 19(1)(g) and 14, and therefore there is no obstacle in placing a positive obligation on a private party while realising the right to education.