Minority Institutions and the Right to Education Act

What section 12 actually requires

The Act, read off the text set out in the Society report, divides schools by section 2(n) into four kinds and gives each a different burden in section 12(1).

1. A government school (sub-clause (i)) provides free and compulsory elementary education to all children admitted.
2. An aided school (sub-clause (ii)) provides it "to such proportion of children admitted therein as its annual recurring aid or grants so received bears to its annual recurring expenses, subject to a minimum of twenty-five per cent."
3. A specified category school and an unaided school (sub-clauses (iii) and (iv)) "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".
4. The unaided school is reimbursed under section 12(2), at per-child expenditure incurred by the State or the actual amount charged from the child, whichever is less.

Note what the aided school's obligation is measured by: the proportion of its expenses met by public money, with a floor of a quarter. The unaided school's is a flat quarter of one class, with money coming back. Neither is a reservation in the article 15 sense; both are admission obligations attached to the school.

The first answer

Facts. Society for Un-aided Private Schools of Rajasthan v. Union of India, decided on 12 April 2012 by a Bench of three. The report we hold carries no report reference, so the case is given by its date. Private unaided schools challenged the whole of the 2009 Act, and section 12(1)(c) in particular, saying the twenty-five per cent obligation destroyed their right under article 19(1)(g) to carry on the occupation of running a school and, for minority schools, their right under article 30(1).

Held. Kapadia C.J. and Swatanter Kumar J., in the majority, upheld the Act. Applied to an unaided non-minority school, section 12(1)(c) is "saved as reasonable restriction under Article 19(6)", because the autonomy principles of Pai Foundation and Inamdar were worked out for professional and higher education "where merit and excellence have to be given due weightage", and those tests "do not apply in cases where a child seeks admission to class I". For minority schools the Court went the other way. Article 30(1) "is a fundamental right declared in terms absolute unlike the freedoms guaranteed by Article 19", and reservation of twenty-five per cent "in such unaided minority schools result in changing the character of the schools". The conclusion was that the Act "is constitutionally valid and shall apply to" government schools, aided schools "including aided minority school(s)", specified category schools, and unaided non-minority schools; but sections 12(1)(c) and 18(3) infringe article 30(1) as against unaided minority schools, and, severing them on the principle of R.M.D. Chamarbaugwalla, worked in [Eclipse, Severability and Waiver], the Act "shall not apply to such schools".

Why it matters. It is the first ruling that the twenty-five per cent obligation is constitutional at all, and it settles the reasoning that saves it: this is not a reservation appropriating seats but the removal of a financial barrier to elementary education, and elementary education is not the terrain of merit on which Inamdar was decided. It also draws the line the next case moved. The majority kept aided minority schools inside the Act because article 30(1) is subject to article 29(2), and a citizen refused admission to an aided school has an individual right under article 29(2). Radhakrishnan J., dissenting, would have gone further than either: article 21A "casts an obligation on the State to provide free and compulsory education to children of the age of 6 to 14 years and not on unaided non-minority and minority educational institutions", and section 12(1)(c) should be read down for unaided schools of both kinds so as to operate "only on the principles of voluntariness, autonomy and consensus".

Parliament's response, and then the correction

After Society, Parliament amended the Act. The Right of Children to Free and Compulsory Education (Amendment) Act, 2012 inserted section 1(4), providing that subject to articles 29 and 30 of the Constitution, the provisions of the Act shall apply to the conferment of rights on children to free and compulsory education. That is the legislature writing the judgment into the statute, and it did not end the argument, because it left "subject to articles 29 and 30" to be construed.

Facts. Pramati Educational and Cultural Trust v. Union of India, AIR 2014 SUPREME COURT 2114, decided 6 May 2014 by a Bench of five. Private unaided institutions and minority school associations raised two questions of a different order from those in Society: whether Parliament, in inserting article 15(5) by the Ninety-third Amendment and article 21A by the Eighty-sixth Amendment, had altered the basic structure of the Constitution.

Held on the amendments. Both survive. None of the rights under articles 14, 19(1)(g) and 21 "have been abrogated by clause (5) of Article 15", and the view of Bhandari J. in Ashoka Kumar Thakur that imposing reservation on unaided institutions abrogated article 19(1)(g) "is not correct". Article 21A likewise does not alter the basic structure, and the 2009 Act is not ultra vires article 19(1)(g), because under section 12(2) "ultimately it is the State which is funding the expenses" of the children so admitted.

Held on minority schools. The Court quoted Sikri C.J. in Kesavananda Bharati that it is "impossible to read the expression 'Amendment of the Constitution' as empowering Parliament to abrogate the rights of minorities", and reasoned that "the power under Article 21A of the Constitution vesting in the State cannot extend to making any law which will abrogate the right of the minorities to establish and administer schools of their choice." An aided minority school under section 12(1)(b) is bound to educate children who need not be of the minority community; an unaided minority school under section 12(1)(c) is bound to admit neighbourhood children who need not be either. "In our view, if the 2009 Act is made applicable to minority schools, aided or unaided, the right of the minorities under Article 30(1) of the Constitution will be abrogated." The majority in Society, "insofar as it holds that the 2009 Act is applicable to aided minority schools is not correct".

Why it matters. This is the case the plan note points to, and it is the answer to the examiner's question. A minority school is outside the twenty-five per cent obligation altogether. Note also what Pramati did not disturb: article 15(5) is valid, article 21A is valid, and the obligation on unaided non-minority schools stands.

Which school owes what

A worked example

St. Anne's, a Christian-run school in Mumbai, receives a State grant meeting forty per cent of its recurring expenses. The State directs it to educate forty per cent of its children free under section 12(1)(b). It refuses.

Step one, which sub-clause of section 12(1) applies? Sub-clause (b), the aided-school clause. The proportion is forty per cent, since that exceeds the minimum of twenty-five.

Step two, what would the position have been in 2012? The direction would have been good. The majority in Society held the Act valid "qua aided minority schools", because article 30(1) is subject to article 29(2) and the school takes public money.

Step three, what is the position after 2014? The direction is bad. Pramati holds the Act ultra vires so far as it applies to minority schools, "aided or unaided", so section 12(1)(b) cannot be enforced against St. Anne's.

Step four, does the school have to prove anything? Yes, that it is a minority educational institution within article 30(1). That is a question of who established it and who administers it, dealt with in [Who Is a Minority?] and [Article 30: To Establish and to Administer].

Step five, what can the State still do? Impose conditions of recognition and regulation that do not abrogate the article 30(1) right, and attach reasonable conditions to the aid itself. What it cannot do is work the twenty-five per cent obligation through the Act.

What it does NOT mean

It does not mean article 21A is weaker than it looks. Pramati upheld both amendments against a basic structure challenge. What it held was that a valid amendment cannot be used to abrogate a right that another part of Part III guarantees.

It does not mean the twenty-five per cent obligation is a reservation. The Society majority treated it as the removal of a financial barrier, reimbursed by the State under section 12(2), and that is why article 19(6) saved it.

It does not mean minority schools are outside all regulation. They are outside this Act. Recognition, affiliation and academic standards are dealt with in [State Control and Regulation].

It does not mean the Society judgment is spent. Its reasoning on article 19(1)(g) and article 19(6), and its distinction between elementary and professional education, is the surviving foundation for the obligation on every non-minority unaided school.

Quick revision

• Article 21A, inserted by the Eighty-sixth Amendment 2002 with effect from 1 April 2010, puts the duty on the State, "in such manner as the State may, by law, determine".
• The Right of Children to Free and Compulsory Education Act, 2009 is that law; section 12(1)(c) is the twenty-five per cent obligation on unaided and specified category schools, with reimbursement under section 12(2).
• Society for Unaided Private Schools (2012, three judges): Act valid; applies to government, aided including aided minority, specified category and unaided non-minority schools; sections 12(1)(c) and 18(3) do not apply to unaided minority schools. Radhakrishnan J. dissenting.
• The Amendment Act of 2012 inserted section 1(4), making the Act subject to articles 29 and 30.
• Pramati (2014, five judges): articles 15(5) and 21A are valid and do not alter the basic structure; the Act is not ultra vires article 19(1)(g); but the Act is ultra vires so far as it applies to minority schools, aided or unaided.
• The difference between the two decisions is the aided minority school, and Pramati is the later and larger Bench.

Test yourself

1. Set out the four categories of school in section 12(1) and the different obligation each carries.

2. Why did the Society majority hold that Pai Foundation and Inamdar did not govern the twenty-five per cent obligation?

3. On what did the Society majority rest the inclusion of aided minority schools, and how did Pramati answer it?

4. State the basic structure question in Pramati and the answer, and explain why the Act was nevertheless struck down in part.

5. What did Radhakrishnan J. hold in dissent, and how does it differ from the outcome now reached?