Article 21A and the Right to Education Act

And it added an eleventh fundamental duty, article 51A(k), on a citizen "who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years." One amendment, three Parts: III, IV and IVA. See [The Fundamental Duties].

Broken down

"The State shall provide". In Pramati the Court accepted without qualification that the word "State" in article 21A "can only mean the 'State' which can make the law", so the obligation "is on the State ... and not on private unaided educational institutions". A school is not the duty-holder under the article.

"free and compulsory". In the Society judgment "free" means the removal by the State of any financial barrier that prevents a child completing eight years of schooling, and "compulsory" means compulsion on the State and a parental duty to send children to school. Neither word compels the child.

"of the age of six to fourteen years". Both ends are hard. Below six the child has article 45, which is unenforceable. Above fourteen there is no fundamental right to education at all.

"in such manner as the State may, by law, determine". This is the operative clause and the one that decides the litigation. Pramati held that by leaving the manner to a law the amendment meant that "a new power was vested in the State", one "independent and different from the power of the State under clause (6) of Article 19". That is how a duty on the State becomes an obligation on a private school.

What the Act of 2009 requires

The Right of Children to Free and Compulsory Education Act 2009 received the President's assent on 26 August 2009 and came into force on 1 April 2010. Its scheme, as the Society judgment sets it out, is this.

• Section 3(1): every child of six to fourteen has a right to free and compulsory education in a neighbourhood school till completion of elementary education. Section 3(2): no child is liable to pay any fee that would prevent completion. Section 6: the appropriate Government and the local authority must establish a neighbourhood school where none exists.
• Section 12(1)(c): every recognised school, even an unaided one, must admit in Class I at least twenty-five per cent of the strength of that class from children of weaker sections and disadvantaged groups in the neighbourhood, and educate them free till completion.
• Section 12(2): an unaided school that received no land, building or facility free or at a concession is reimbursed at per child expenditure incurred by the State, or the fee actually charged, whichever is less.
• Section 13: no capitation fee and no screening at admission. Sections 16 and 17: no holding back, no expulsion, no physical punishment. Sections 18 and 19: no school may function without recognition, which depends on the norms in the Schedule.

Section 12(1)(c) is what the litigation is about, and the fight is over who it binds.

Before the amendment

Facts. Unni Krishnan, J.P. v. State of Andhra Pradesh, AIR 1993 SC 2178, (1993) 1 SCC 645, decided 4 February 1993 by a Bench of five. Private colleges of medicine and engineering in four States challenged the State capitation fee statutes, and challenged the correctness of the earlier decision in Mohini Jain, named here without a citation because it belongs to [Education Before Article 21A].

Held. "The citizens of this country have a fundamental right to education. The said right flows from Article 21." But the right "is, however, not an absolute right. Its content and parameters have to be determined in the light of Articles 45 and 41." So "every child/citizen of this country has a right to free education until he completes the age of 14 years. Thereafter his right to education is subject to the limits of economic capacity and development of the State." A citizen may have a right to establish an educational institution, but nobody has a right, "much less a fundamental right", to recognition, affiliation or grant-in-aid.

Why it matters. It is the case article 21A was written to consolidate. Its holding gave the right without the machinery: a fundamental right to free education up to fourteen, resting on articles 41 and 45, with no statute saying who must deliver it or how. The amendment supplied the words "in such manner as the State may, by law, determine", and the Act of 2009 supplied the machinery.

Who the twenty-five per cent binds

Facts. Society for Un-aided Private Schools of Rajasthan v. Union of India, decided on 12 April 2012 by a Bench of three. The copy of this report the book holds carries no report reference, so none is printed. Private schools challenged the Act of 2009, and section 12(1)(c) in particular, as a violation of their right under article 19(1)(g) to establish and administer an institution.

Held. By a majority of two to one, the Act is constitutionally valid and applies to a government school, an aided school including an aided minority school, a specified category school, and "an unaided non-minority school not receiving any kind of aid or grants". Article 21A leaves the manner of discharge to the State, and to put on an unaided non-minority school the obligation to admit twenty-five per cent in Class I "cannot be termed as an unreasonable restriction" under article 19(6). But sections 12(1)(c) and 18(3) infringe the freedom of unaided minority schools under article 30(1), because a twenty-five per cent intake would change the character of the school, and the Act was severed so as not to apply to them. Radhakrishnan J. dissented.

Why it matters. It is the case that made section 12(1)(c) real, and it drew the line the next case moved. Note its reasoning on the eleventh fundamental duty: article 51A(k) and article 21A "balance the relative burdens on the parents and the State", so the right to education is "a reciprocal agreement".

The five-judge answer

Facts. Pramati Educational and Cultural Trust v. Union of India, AIR 2014 SC 2114, decided 6 May 2014 by a Bench of five. Private unaided institutions challenged the Ninety-third Amendment, which inserted article 15(5), and the Eighty-sixth Amendment, which inserted article 21A, as damaging the basic structure. A minority schools' association separately challenged the application of the Act of 2009 to minority schools.

Held. Both amendments "do not alter the basic structure or framework of the Constitution and are constitutionally valid", and the Act of 2009 "is not ultra vires Article 19(1)(g)". But article 21A must be harmoniously construed with articles 19(1)(g) and 30(1), and a law made under it "should not ... abrogate the right of unaided private educational schools under Article 19(1)(g) ... or the right of the minority schools, aided or unaided, under Article 30(1)". Therefore the Act of 2009, so far as it applies to minority schools, aided or unaided, is ultra vires, and the majority in Society was "not correct" in holding it applicable to aided minority schools.

Why it matters. It settles the map, and it states the mechanism precisely: the Eighty-sixth Amendment gave the State an additional power that "has affected the voluntariness of the right under Article 19(1)(g)", so long as the law forces admission of only "a small percentage of the seats".

Where the Act now applies

A worked example

Deepak, aged six, lives in a colony next to an unaided school run by a trust that is not a minority institution. The school refuses him a form, saying it admits on an interview and that its seats are full.

Step one, what is his right? Article 21A: free and compulsory education between six and fourteen. The duty under the article is on the State, not the school.

Step two, does anything bind the school? Yes, but not article 21A directly. Section 12(1)(c) of the Act of 2009, made under the words "in such manner as the State may, by law, determine", requires it to keep twenty-five per cent of Class I for the neighbourhood's weaker sections and disadvantaged groups.

Step three, is the interview lawful? No. Section 13 forbids a screening procedure at admission.

Step four, can the school answer that this destroys its article 19(1)(g) right? Not on Society and Pramati. The obligation is a reasonable restriction under article 19(6), and Pramati holds the amendment took away the voluntariness of the right, not the right.

Step five, would the answer change if the trust were a linguistic minority? Completely. On Pramati the Act does not apply to a minority school at all, aided or unaided, because article 30(1) would be abrogated. That is [Minority Institutions and the Right to Education Act].

Step six, and if Deepak were four years old? He has no fundamental right, only article 45, which article 37 makes unenforceable.

What it does NOT mean

It does not mean the school owes the child the constitutional duty. The duty in article 21A is the State's. The school's obligation comes from a statute made under the article, which is why the challenge in Society had to be, and was, a challenge to the statute.

It does not mean the twenty-five per cent is uncompensated. Section 12(2) provides reimbursement. The complaint that survives is about the size of that figure, not about its absence.

It does not mean the right runs to a degree. Article 21A stops at fourteen, and Unni Krishnan is still the authority for what lies beyond.

It does not mean minority schools are outside the Act because they are private. They are outside it because of article 30(1). An unaided non-minority school is equally private and is inside it.

It does not mean article 45 was repealed. It was rewritten, and now covers the years below six.

Quick revision

• Article 21A: free and compulsory education for all children of six to fourteen, "in such manner as the State may, by law, determine". Inserted by the Eighty-sixth Amendment 2002, in force 1 April 2010.
• The same amendment substituted article 45, now early childhood care and education below six, and added the eleventh duty in article 51A(k) on the parent or guardian.
• Unni Krishnan (1993): the right to education flows from article 21, free until fourteen, thereafter subject to the economic capacity of the State; no right to recognition or affiliation.
• The Act of 2009: assent 26 August 2009, in force 1 April 2010. Sections 3, 12(1)(c), 12(2), 13 and 19 are the ones to know.
• Society (2012, two to one): valid; applies to government, aided including aided minority, specified category and unaided non-minority schools; not to unaided minority schools.
• Pramati (2014, five judges): the Eighty-sixth and Ninety-third Amendments are valid; the Act does not apply to any minority school, aided or unaided; Society was wrong on aided minority schools.
• MU has set the right to education seven times in the papers counted for this book.

Test yourself

1. Article 21A puts the duty on the State. How then can a private school be compelled to admit a child? Answer through the words "in such manner as the State may, by law, determine".

2. What exactly did Unni Krishnan hold about the age of fourteen, and why did that holding need an amendment rather than another case?

3. Set out which four categories of school the Act of 2009 binds, and give the authority for each.

4. On what ground are minority schools outside the Act, and what did Pramati change from Society?

5. The Eighty-sixth Amendment altered three Parts of the Constitution. Name the change made in each and explain how they fit together.