The Supreme Court on April 12, 2012 by a majority of 2:1 upheld the constitutional validity of the Right of Children to Free and Compulsory Education Act, 2009, which provides for free and compulsory education to children between the age of 6 and 14 years and mandates government/aided/and non-minority unaided schools to reserve 25 per cent of the seats for these children.
A Bench of Chief Justice S.H. Kapadia and Justice Swatanter Kumar while upholding the law, however, held that it would not be applicable to unaided minority schools. Justice K.S. Radhakrishnan gave a dissenting judgment. The majority judgment said: “We hold that the Right of Children to Free and Compulsory Education Act, 2009 is constitutionally valid and shall apply to a school established, owned or controlled by the appropriate Government or a local authority; an aided school including aided minority school(s) receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority; a school belonging to specified category; and an unaided non-minority school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority.”
The CJI who wrote the judgment said: “It will operate from today. In other words, this will apply from the academic year 2012-13. However, admissions given by unaided minority schools prior to the pronouncement of this judgment shall not be reopened.
“By judicial decisions, right to education has been read into right to life in Article 21. A child who is denied right to access education is not only deprived of his right to live with dignity, he is also deprived of his right to freedom of speech and expression enshrined in Article 19(1) (a). The 2009 Act seeks to remove all those barriers including financial and psychological barriers which a child belonging to the weaker section and disadvantaged group has to face while seeking admission.”
The Bench said: “It is true that, as held in the T.M.A. Pai Foundation as well as the P.A. Inamdar judgments, the right to establish and administer an educational institution is a fundamental right, as long as the activity remains charitable under Article 19(1) (g). However, in the said two decisions the correlation between Articles 21 and 21A, on the one hand, and Article 19(1) (g), on the other, was not under consideration.
Further, the content of Article 21A flows from Article 45 (as it then stood). The 2009 Act has been enacted to give effect to Article 21A. For the above reasons, since the Article 19(1) (g) right is not an absolute right as Article 30(1), the 2009 Act cannot be termed as unreasonable.”
The Bench said: “To put an obligation on the unaided non-minority school to admit 25 per cent children in class I under Section 12(1) (c) cannot be termed as an unreasonable restriction. Such a law cannot be said to transgress any constitutional limitation. The object of the 2009 Act is to remove the barriers faced by a child who seeks admission to Class – I and not to restrict the freedom under Article 19(1) (g).
“From the scheme of Article 21A and the 2009 Act, it is clear that the primary obligation is of the State to provide for free and compulsory education to children between the age of 6 and 14 years and, particularly, to children who are likely to be prevented from pursuing and completing the elementary education due to inability to afford fees or charges.”