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SOCIETY FOR UN-AIDED PRIVATE SCHOOLS OF

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RAJASTHAN V. UNION OF INDIA & ANOTHER

Case study
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10/31/2018
Rashmi garg

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IUU15BBL003
7th Sem

SUBMITTED TO:

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Ma’am Shalini saxena

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.

Society For Un-Aided P.School Of vs U.O.I & Anr 2012, 6 SCC; Writ petition (c) no. 95 of
2010
Subject constitution of India

Court supreme court of India

Decided On 12 April 2012

Judge CJ S.H. Kapadia, K.S. Radhakrishnan, Swatanter Kumar

Acts – Right of children to free and compulsory education, constitution of India, constitution
(86th amendment) act 2002

Appellant- Society for Un-aided Private Schools of Rajasthan

Respondent - U.O.I. & Anr.
Facts
An association consisting of several Private schools in Rajasthan filed a writ petition challenging
the validity of the section 12(1) (c) of Right to education Act mandating admission on unaided
private schools on the grounds that the provision of the act impinges upon their right to run an
educational institution, in absence of governmental intervention guaranteed, under article 19(1)
(g) of the constitution. The petitioners argued that such conditions constitute serious
infringement on the autonomy of the institutions and therefore according to the judgement in
P.A. Inamdar v. State of Maharashtra the state cannot impose any constitutional obligation on
them to reserve the admissions and adhere to state fee regulations.

Issue and resolution:

Right to education. The majority of the Court held that the 2009 Act is constitutionally valid and
shall apply to government-controlled schools, government-aided schools (including minority
schools), and private unaided non-minority schools. However, the 2009 Act infringes the
fundamental freedom guaranteed to unaided minority schools under the Constitution, therefore
the Act shall not apply to such schools.

Radhakrishnan, J. in dissent held that the 2009 Act shall apply to all types of schools except
unaided schools (whether non-minority or minority).

Decision of the court

Supreme Court in the matter of Society of Unaided private Schools of Rajasthan v. Union of
India uphold the constitutional validity of section 12 of Right to Education act, 2009 requiring
even the private unaided schools, except minority schools, to admit 25 percent of student for
unprivileged and weaker background.

CONTROVERSIAL ASPECT

The verdict in the present case was given by Supreme Court bench consisting of, Chief Justice
S.H. Kapadia, Justice Radhakrishnan, and Justice Swantanter Kumar. The judgment was devoid
of unanimity whereby Jutice Radhakrishnan gave a dissenting minority Judgment. The majority
opinion of the court decided that the impugned act is constitutionally valid and is applicable to
private unaided schools too. The reasoning employed by the court is as below:
First, the inclusion of Article 21A in the constitution makes it obligatory for the state to provide
free and compulsory elementary education. According to the court, the act in question has been
specifically enacted in order to effectively implement article 21A of the constitution, which in
literatim pledges power on state to determine, by law, the manner to discharge such obligation
under the act. Consequently, the state has freedom to fulfil its obligation by including any type of
schools, including the private unaided, under the ambit of the act.

Second, the majority opinion maintained that the act envisages an agreement of reciprocity
between state and parents. Consequently, it places an affirmative burden not only upon state but
also all stakeholders in the society.Therefore, the legal obligation to provide education can be
appropriately extended to private schools, where the unaided private schoolswill supplement the
primary duty of state to provide free and compulsory education also ensuring better quality of
education to children of unprivileged class.

Third, the court accepted that the right to establish and administer an educational institution
including right to admit students, comes under the scope of Article 19(1)(g). The majority
however, denied the applicability of these principles to the fundamental right to elementary
education. Since, the act also seeks to remove the financial obstacles; the state by law can
regulate the activities of unaided private schools, including admission and adherence to state
determined fee structure, in the ambience of reasonable restrictions under article 19(6).

Dissenting Opinion
Justice Radhakrishnan departing from the majority view noted that any positive obligation upon
private non-state actors in Article 21A can be operationalised on the only on principles of
voluntariness, autonomy and consensus, implying the responsibility of the proposition was meant
to be laid solely on the state in strict and unambiguous provisions. Such imposition of act and
reservation of seats in unaided private schools on compulsion and threats of non-recognition
would amount to nationalisation of seats. He notes that primary responsibility to provide free and
compulsory education rests on state and not non state actors. Also under article 51A (k), the
guardian and other private entities are not obligated but merely have duty to provide
opportunities of education. He views that compelling private institution, investing his own
capital, would amount to serious infringement of their right guaranteed under article 19 and
would constitute critical curtailment of their autonomy for the state. Reasonable restriction can
be imposed in the interest of general public however; no constitutional obligation can be placed.
Significance to the right to education
This case affirms that the authority of the State to fulfil its obligations under the right to
education can be extended to private, non-State actors. Because the State has the authority to
determine the manner in which it discharge this obligation, it can elect to impose statutory
obligations on private schools so long as the requirements are in the public interest.

Position of law in India

The 86(constitutional amendment) act, 2002 guaranteed the fundamental right to free and
compulsory education under Article 21A which made it obligatory on the state to create
provisions of education for children between 6 to 14 years up to elementary level. The
amendment was followed by the right to education act, 2009 to ensure and to give effect the
above amendment. The act requires the assurance of free education to all admitted children by
the government school and provides for a reservation of one-fourth admission seats for children
hailing from unprivileged and disadvantaged sections of society in the aided institutions as well.
The act prescribes certain norms to be compulsorily followed by the schools to gain and maintain
their legal recognition.

Article 12(1) (c) of the act was met with controversy and opposition due the extension of legal
obligation of 25% reserved quota for weaker groups to the non-state actors. Several private
schools challenged the unfair imposition of regulatory and infrastructural obligation thereby
violating their constitutional right to practice any profession u/a 19(1)(g) unreasonably. The
constitutional right of minority groups to establish and administer school under article 30 of the
constitution was also alleged to be violated through the operationalisation of the act.

INTERNATIONAL LAW AND COMMON LAW

As also cited by the justice Radhakrishnan in his dissenting opinion that even in the common law
principles and International laws of positive morality the responsibility of fulfilment of various
socio economic rights and their enforcement lies categorically only against state and are not
available private unaided actors; including where such rights constitutes a status of fundamental
importance in the constitution.He stressed upon article 28 and 29 of UN convention on rights of
child and maintained that there express inclusion of private entities even from the convention‟s
obligation. Further reliance was also made on the common law cases like Grootboom case and
the Treatment action campaign case.

The initial draft of article 21A was presented by the government in Rajya Sabha in year 1997
which formally contained a provision mentioning the constitutional limitation on state to make a
law mandating non-state entities to provide free education. However, in light of a law
commission report and Supreme Court‟s decision in Unnikrishnan v. State of Andhra
Pradesh,which laid down that right to establish and administer an education institution cannot be
considered a profession or trade under the meaning of article 19(1)(g) and further affirmed the
imposition of obligatory reservation of seats by state up to 50 percent seats for free education,
the proposed provision was consequently scrapped.

BIBLIOGRAPHY

https://www.academia.edu/22227099/SOCIETY_FOR_UNAIDED_PRIVATE_SCHOOLS_OF_
RAJASTHAN_V._UNION_OF_INDIA_2012

https://www.crin.org/en/library/legal-database/society-un-aided-private-schools-rajasthan-v-
union-india-another