Pramati: The Judgement that is changing India – Part II

In Part I of the post, we had looked at the arguments, opinions and decision of the Supreme Court on the 93rd amendment. In this part, let us look at the same judgement with respect to Article 21A of the Constitution.

(Note: It would help if one goes through Part I so the background and other details of the case is understood)

Opening remarks:

The judgement on this section starts by giving some background into the evolution of Article 21A and the accompanying 2009 Act (the RTE Act).

The judges noted that the 2009 RTE Act was to give effect to Article 21A. The said Act was challenged in Society for Unaided Private Schools of Rajasthan v. Union of India & Anr, in which the Act was held as valid and the following schools were brought under its fold, as a result of a 2:1 split verdict.

• Government schools
• Aided Hindu schools
• Aided minority schools
• Specified category schools
• Unaided Hindu schools

In other words, only unaided minority schools were kept out of the RTE Act.

The judges also noted the dissenting opinion by J Radhakrishnan who held that the Act cannot apply to even Hindu unaided schools.

Interestingly, the judges conclude the opening remarks by noting the 2012 amendment by Parliament whereby reference to Articles 29 and 30 were introduced into the RTE Act, thereby making it subservient to them.

Objections raised by the Petitioners:

• Mukul Rohatgi argued that Article 21A cast a responsibility on ONLY the State, and not on unaided institutions. Therefore, the 2009 Act abrogated the rights conferred by Art19(g). He opined that the minority judgement in Society for Unaided Private Schools of Rajasthan v. Union of India & Anr was the right decision.
• R F Nariman argued that the word “State” in Article 21A meant that it was applicable only to arms of the Government, and its institutions, and not to private educational institutions.
• R F Nariman then argued that the original Article 45 of the Constitution, which Article 21A replaced, clearly placed the responsibility on the State, and State alone, by the use of the word “for” in it. Therefore, even though the word “for” is missing in Article 21A, the intent remains the same. Hence, forcing private institutions to comply with the RTE Act would violate Art19(g)
• R F Nariman further argued that the RTE Act does not make any reference to Art15(5) at all. Hence the 25% reservation portion of the Act would violate rights conferred under Art19(g).

Objections raised by the Petitioners appearing for minority institutions:

• Ajmal Khan and T R Andhyarujina argued that the RTE Act violates the rights conferred to minorities vide Article 30(1). They referred to a host of case laws right from Kerala Education Bill to TMA Pai to press home the point that non-minority students cannot be forced on to a minority educational institution.
• Both the counsel brought to the attention of the judges, the 2012 amendment of the RTE Act making it subservient to Articles 29 and 30.
• They argued that even the aided minority educational institutions should be exempted from the purview of the RTE Act.

Submissions on behalf of the Union of India:

• ASG K V Vishwanathan submitted that the 2009 RTE Act was to give effect to Article 21A. This is especially intended by Section 12(1)(c) of the Act.
• The ASG argued that since in the matter of schools, the private institutions performed a role akin to the State, they too come under the term “State” as mentioned in Article 21A
• Further, referring to TMA Pai, the ASG argued that admitting a small percentage of students under Section12(1)(c) would not violate the rights provided under Art19(g).
• On the issue of minority institutions, the ASG mentioned the decision of the Society for Unaided Private Schools of Rajasthan v. Union of India & Anr case and then highlighted the 2012 amendment of the RTE Act.

(Note: The ASG did NOT take any particular stance with regard to minority institutions)

Opinion of the Bench:

• The bench remarked that since Article 45 was only a Directive Principle, it lacked the necessary power to enforce implementation and hence the Government introduced Article 21A into the Constitution.
• The bench agreed with the contention that the word “State” in Art21A meant only the Government and its institutions. However, it pointed to the wording of the Article whereby the State could, by law, determine the “manner” in which this obligation will be discharged. The bench therefore felt that a new power was vested with the State as a result of this phrase.
• The bench commented that it does not find any conflict between the rights given under Art21A and Art19(1)(g) & Art30. However, it opined that there may be conflicts between the law enacted to support Art21A and Art19(1)(g) & Art30(1).
• The bench reiterated its earlier comment that reserving a small percentage of seats for weaker sections does not abrogate the rights granted under 19(1)(g).
• The bench’s opined that the provisions under Art19 had an element of voluntariness to them. However the new power vested to the State due to Art21A “affected the voluntariness of the right under Article 19(1)(g) of the Constitution“. So it opined that the State could now impose restrictions, related to admissions, on educational institutions, and such restrictions would not be destructive of the rights granted under Art19(1)(g)
• It noted that per Section 12 of the RTE Act, private unaided institutions have to admit students from weaker sections up to 25%. However, since the State will reimburse the costs of these students, the rights of the schools are in no way affected.
• The bench then stated that due to the rights conferred upon the minorities due to Art30(1), the State cannot enforce any regulation on it related to admission of students. Since Section 12(1)(c) imposes such a regulation on schools, minority institutions could be put under a legal obligation to admit children who do not belong to the minority communities.
• The bench felt that such an imposition could affect the minority nature of the institution, and also would abrogate the rights conferred under Art30(1).
• Therefore, the bench concluded that the decision under Society for Unaided Private Schools of Rajasthan v. Union of India & Anr regarding aided minority schools was NOT correct.
• The bench, therefore, overturned the previous ruling and held that the RTE Act would not be applicable to any kind of minority educational institution.

Conclusion:

The operative portion of the Judgement is produced in full below for quick reference.

“47. In the result, we hold that the Constitution (Ninety third Amendment) Act, 2005 inserting clause (5) of Article 15 of the Constitution and the Constitution (Eighty-Sixth Amendment) Act, 2002 inserting Article 21A of the Constitution do not alter the basic structure or framework of the Constitution and are constitutionally valid. We also hold that the 2009 Act is not ultra vires Article 19(1)(g) of the Constitution. We, however, hold that the 2009 Act insofar as it applies to minority schools, aided or unaided, covered under clause (1) of Article 30 of the Constitution is ultra vires the Constitution. Accordingly, Writ Petition (C) No.1081 of 2013 filed on behalf of Muslim Minority Schools Managers’ Association is allowed and Writ Petition (C) Nos.416 of 2012, 152 of 2013, 60 of 2014, 95 of 2014, 106 of 2014, 128 of 2014, 144 of 2014, 145 of 2014, 160 of 2014 and 136 of 2014 filed on behalf of non-minority private unaided educational institutions are dismissed“

One cannot help but notice the following:

1. A huge number of Hindu schools went to the Court, engaged the very best of lawyers, and presented numerous objections regarding both Art15(5) and the RTE Act. All their petitions were dismissed.
2. A single minority school association approached the Court, and made few simple submissions. The Court held all their contentions valid.

Such is the power of #IOI laws.