Judges: R.M. Lodha, C.J.I., A.K. Patnaik, S.J. Mukhopadhaya, Dipak Misra and F.M. Ibrahim Kalifulla, JJ.

Facts:

The constitution bench, comprising five judges, in present case, was called upon through a reference order made in the case of Society for Unaided Private schools of Rajasthan v. Union of India & another, MANU/SC/0311/2012 by a three-judge bench of the Supreme Court.

The reference sought adjudication upon the challenge made to the vires of Article 15(5) of the Constitution, which was inserted by the 93rd Constitutional Amendment Act, 2005 with effect from 20.01.2006 and on the validity of Article 21A of the Constitution inserted by the 86th Constitutional Amendment Act, 2002 with effect from 01.04.2010.

Issues:

(i) Whether by inserting Clause (5) in Article 15 of the Constitution by the 93rd Constitutional Amendment Act, 2005, Parliament has altered the basic structure of the Constitution?

(ii) Whether by inserting Article 21A of the Constitution by the 86th Constitutional Amendment Act, 2002, Parliament has altered the basic structure of the Constitution?

Laws:

Constitution of India, 1950 - Article 15(5) - Power of the State for making special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in matters relating to their admission to educational institutions including private educational institutions, whether aided or unaided by the State.

Constitution of India, 1950 - Article 21A - State shall provide free and compulsory education to all children of the age of six to fourteen years.

Contentions:

Petitioners

(i) Article 15(5) of the Constitution destroys the basic structure of the Constitution.

Article 19(1)(g) of the Constitution is a basic feature of the Constitution. Article 15(5) in so far as it empowers the State to make special provision for some classes in matter relating to their admission to educational institutions including private educational institutions, notwithstanding anything contained in Article 19(1)(g) of the Constitution, destroys that basic feature.

It compels private educational institutions to give up a share of the available seats to the candidates chosen by the State. Such appropriation of seats can neither be a regulatory measure, nor a reasonable restriction on the right under Article 19(1)(g) of the Constitution within the meaning of Article 19(6) of the Constitution.

Article 15(5) of the Constitution was brought to achieve the Directive Principles of State Policy in Part IV of the Constitution as well as the goals of social and economic justice set out in the Preamble of the Constitution.

Parts III and IV together constitute the core of our Constitution. Anything that destroys the balance between the two parts will ipso facto destroy an essential element of the basic structure of our Constitution.

Article 15(5) of the Constitution inasmuch as it is violative of Articles 14, 19(1)(g) and 21 of the Constitution destroys the basic feature of the Constitution and is, therefore, beyond the amending power of Parliament.

(ii) Article 15(5) of the Constitution is violative of Article 14 of the Constitution inasmuch as it treats unequals as equals.

It fails to make a distinction between aided and unaided educational institutions and treats both aided and unaided alike in the matter of making special provision for some classes.

It, therefore, is discriminatory and violative of the equality clause in Article 14 of the Constitution, which is a basic feature of the Constitution.

(iii) Article 21A of the Constitution creates obligation only upon the State and its instrumentalities as defined in Article 12 of the Constitution and does not cast any obligation on a private unaided educational institution.

(iv) If Article 21A is interpreted to include the private unaided educational institutions within its sweep then it would abrogate the right Under Article 19(1)(g) of the Constitution to establish and administer private educational institutions which is a basic feature of the Constitution.

Respondent

(i) Supreme Court has held in Ashoka Kumar Thakur v. Union of India (supra) that Article 15(5) of the Constitution is only an enabling provision.

It empowers the State to make a special provision for some classes in matter relating to their admission to educational institutions including private educational institutions.

It is consistent with the right to establish and administer the private educational institutions under Article 19(1)(g) of the Constitution.

Minority institutions referred to in Article 30 of the Constitution have been excluded from its purview because the Constitution has given a special status to minority institutions.

Argument that Article 15(5) of the Constitution is violative of equality clause in Article 14 of the Constitution is therefore misconceived.

(ii) Applying the functional test, private educational institutions are also State within the meaning of Article 12 of the Constitution. Argument that the obligation of providing free and compulsory education to all children of the age of six to fourteen years cannot be passed on by the State to private educational institutions has no substance.

(iii) While private unaided educational institutions have the right to admit students of their choice, admission of a small percentage of students belonging to weaker sections of the society by granting them freeships or scholarships, if not granted by the Government should also be done.

Analysis:

Article 15(5) of Constitution - Object is to enable the State to give equal opportunity in all educational institutions.

I. To amplify the provisions of Article 15 of the Constitution as originally adopted and to provide equal opportunity in educational institutions, Clause (5) has been inserted in Article 15 by the 93rd Constitutional Amendment Act, 2005.

II. Object of Article 15(5) of the Constitution is to provide equal opportunity to a large number of students belonging to the socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes to study in educational institutions. Equality of opportunity is also the object of Clauses (1) and (2) of Article 15 of the Constitution.

III. Article 15(5) of the Constitution cannot be held to be an exception or a proviso overriding Article 15 of the Constitution. It is rather an enabling provision to make equality of opportunity promised in the Preamble in the Constitution a reality.

IV. Appropriation of seats by the State for enforcing a reservation policy was neither a regulatory measure nor a reasonable restriction within the meaning of Article 19(6) of the Constitution.

V. As there was no provision other than Article 19(6) of the Constitution under which the State could in any way restrict the fundamental right under Article 19(1)(g) of the Constitution, Parliament made the Constitution (Ninety-third Amendment) Act, 2005 to insert Clause (5) in Article 15 of the Constitution.

VI. It provide that nothing in Article 19(1)(g) of the Constitution shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State.

VII. Article 15(5) of the Constitution, thus, vests a power on the State, independent of and different from, the regulatory power under of Article 19(6) of the Constitution.

93rd Constitutional Amendment Act, 2005 - Whether satisfies the width test.

I. Power in Article 15(5) of the Constitution is a guided power to be exercised for the limited purposes stated in the clause. As and when a law is made by the State in purported exercise of the power under Article 15(5) of the Constitution, the Court will have to examine and find out whether it is for the purposes of advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes and whether the law is confined to admission of such classes of citizens. If the Court finds that the power has not been exercised for the purposes mentioned in Article 15(5) of the Constitution, the Court will have to declare the law as ultra vires Article 19(1)(g) of the Constitution.

II. The width of the power vested on the State under Article 15(5) of the Constitution by the constitutional amendment is not such as to destroy the right under Article 19(1)(g) of the Constitution.

Article 15(5) of the Constitution - Distinction between aided and unaided educational institutions

I. The private educational institutions receive aid from the State, whereas private unaided educational institutions do not receive aid from the State.

II. Law made under Article 15(5) of the Constitution by the State on the ground that it treats private aided educational institutions and private unaided educational institutions alike is not immune from a challenge under Article 14 of the Constitution.

III. Article 15(5) of the Constitution only states that nothing in Article 15 or Article 19(1)(g) will prevent the State to make a special provision, by law, for admission of socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes to educational institutions including private educational institutions, whether aided or unaided by the State.

IV. It does not say that such a law will not comply with the other requirements of equality as provided in Article 14 of the Constitution.

V. Article 15(5) of the Constitution does not treats unaided private educational institutions and aided private educational institutions alike. There is no violation of Article 14 of the Constitution.

Article 15(5) of the Constitution - Exclusion of minority institutions - Whether violative of Article 14 of the Constitution

I. Minority character of the minority educational institutions referred to in Article 30(1) of the Constitution, whether aided or unaided, may be affected by admissions of socially and educationally backward classes of citizens or the Scheduled Castes and the Scheduled Tribes.

II. It is for this reason that minority institutions, aided or unaided, are kept outside the enabling power of the State under Article 15(5) with a view to protect the minority institutions from a law made by the majority.

III. Minority educational institutions, by themselves, are a separate class and their rights are protected Under Article 30 of the Constitution. The exclusion of minority educational institutions from Article 15(5) is not violative of Article 14 of the Constitution.

Article 21A of Constitution - Whether damages basic structure of the Constitution

I. The word 'State' in Article 21A can only mean the 'State' which can make the law.

II. The constitutional obligation under Article 21A of the Constitution is on the State to provide free and compulsory education to all children of the age of 6 to 14 years and not on private unaided educational institutions.

III. Article 21A, however, states that the State shall by law determine the "manner" in which it will discharge its constitutional obligation. Thus, a new power was vested in the State to enable the State to discharge this constitutional obligation by making a law. However, Article 21A has to be harmoniously construed with Article 19(1)(g) and Article 30(1) of the Constitution.

IV. Nothing in Article 21A which conflicts with either the right of private unaided schools under Article 19(1)(g) or the right of minority schools under Article 30(1) of the Constitution. However, a law made under Article 21A may affect these rights under Articles 19(1)(g) and 30(1) of the Constitution.

V. Law made by the State under Article 21A of the Constitution should not, therefore, be such as to abrogate the right of unaided private educational schools under Article 19(1)(g) or the right of the minority schools under Article 30(1) of the Constitution.

Article 21A vis-a-vis Article 30(1) of the Constitution - Right of minorities to establish and administer educational institutions

I. Under Article 30(1) of the Constitution, all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

II. Religious and linguistic minorities, therefore, have a special constitutional right to establish and administer educational schools of their choice.

III. State has no power to interfere with the administration of minority institutions and can make only regulatory measures. It has no power to force admission of students from amongst non-minority communities, particularly in minority schools, so as to affect the minority character of the institutions.

IV. 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. Therefore, the 2009 Act insofar it is made applicable to minority schools referred in Article 30(1) of the Constitution is ultra vires the Constitution.

Conclusions:

(i) Constitution (Ninety-third Amendment) Act, 2005 inserting Clause (5) in Article 15 of the Constitution is valid.

(ii) Constitution (Eighty-Sixth Amendment) Act, 2002 inserting Article 21A of the Constitution does not alter the basic structure and is constitutionally valid.

(iii) 2009 Act is not ultra vires Article 19(1)(g) of the Constitution.

(iv) 2009 Act insofar as it applies to minority schools, aided or unaided, covered under Article 30(1) of the Constitution is ultra vires the Constitution.

Important Precedents:

(i) Ashoka Kumar Thakur v. Union of India and Ors. MANU/SC/1397/2008

(ii) T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors. MANU/SC/0905/2002

(iii) P.A. Inamdar and Ors. v. State of Maharashtra and Ors. MANU/SC/0482/2005

(iv) Society for Unaided Private Schools of Rajasthan v. Union of India and Anr. MANU/SC/0311/2012