The article is an excerpt from the judgment Anjuman Ishaat E. Taleem Trust v. The State of Maharashtra and ors. (2025 SCC Online SC 1912)
Pramati Educational and Cultural Trust (supra) considered the validity of the Constitution (Ninety-third Amendment) Act, 2005 inserting clause (5) in Article 15 of the Constitution, and the Constitution (Eighty-sixth Amendment) Act, 2002, which inserted Article 21-A in Part III as an additional independent fundamental right.
41. The Constitution Bench in Pramati Educational and Cultural Trust (supra) framed specific questions for consideration, as under:
“(i) Whether by inserting clause (5) in Article 15 of the Constitution by the Constitution (Ninety-third Amendment) Act, 2005, Parliament has altered the basic structure or framework of the Constitution?
(ii) Whether by inserting Article 21A of the Constitution by the Constitution (Eighty-Sixth Amendment) Act, 2002, Parliament has altered the basic structure or framework of the Constitution?”
42. Notably, the validity of the Constitution (Ninety-third Amendment) Act, 2005, which inserted clause (5) in Article 15, had been considered by a Constitution Bench of this Court in Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 to the limited extent of its application to state-maintained institutions and aided educational institutions. Relevant passages from the decision in Ashoka Kumar Thakur (supra) read as under:
“668. The Constitution 93rd Amendment Act, 2005, is valid and does not violate the “basic structure” of the Constitution so far as it relates to the State maintained institutions and aided educational institutions. Question whether the Constitution (Ninety Third Amendment) Act, 2005 would be constitutionally valid or not so far as ‘private unaided’ educational institutions is concerned, is not considered and left open to be decided in an appropriate case. Justice ***, in his opinion, has, however, considered the issue and has held that the Constitution (Ninety Third Amendment) Act, 2005 is not constitutionally valid so far as private un-aided educational institutions are concerned.
669. Act 5 of 2007 is constitutionally valid subject to the definition of ‘Other Backward Classes’ in Section 2(g) of the Act 5 of 2007 being clarified as follows: If the determination of ‘Other Backward Classes’ by the Central 2 Government is with reference to a caste, it shall exclude the ‘creamy layer’ among such caste.
670. Quantum of reservation of 27% of seats to Other Backward Classes in the educational institutions provided in the Act is not illegal.
671. Act 5 of 2007 is not invalid for the reason that there is no time limit prescribed for its operation but majority of the Judges are of the view that the Review should be made as to the need for continuance of reservation at the end of 5 years.”
(emphasis ours)
Therefore, effectively, what remained to be considered, qua issue no.(i) in Pramati Educational and Cultural Trust (supra) was, whether the amendment inserting clause 5 in Article 15 is valid or not, insofar as private unaided instructions are concerned.
43. To ascertain the constitutionality of the Constitution (Ninety-third Amendment) Act, 2005, the Bench considered the objects and reasons of the Act and opined that the insertion of clause (5) to Article 15 is an enabling provision. It observed that the amendment was brought forth to fructify the object of equality of opportunity provided in the Preamble to the Constitution. The court relied on the judgment of State of Kerala v. N.M. Thomas, (1976) 2 SCC 310 which held that clause (4) of Article 16 of the Constitution is not an exception or a proviso to Article 16. Drawing an inference, it was observed that the opening words of clause (5) of Article 15 are similar to the opening words of clause (4) of Article 16 and thus held that Article 15(5) cannot be read as an exception to Article 15, but is an enabling provision intended to give equality of opportunity to backward classes of citizens in matters of public employment.
44. The validity of clause (5) of Article 15 of the Constitution was then tested against the right enshrined under Article 19(1)(g) of the Constitution and the court held as thus:
“28. …………………………. In our view, all freedoms under which Article 19(1) of the Constitution, including the freedom under Article 19(1)(g), have a voluntary element but this voluntariness in all the freedoms in Article 19(1) of the Constitution can be subjected to reasonable restrictions imposed by the State by law under clauses (2) to (6) of Article 19 of the Constitution. Hence, the voluntary nature of the right under Article 19(1)(g) of the Constitution can be subjected to reasonable restrictions imposed by the State by law under clause (6) of Article 19 of the Constitution. As this Court has held in T.M.A. Pai Foundation [T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481] and P.A. Inamdar [P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537] the State can under clause (6) of Article 19 make regulatory provisions to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by those in charge of the management. However, as this Court held in the aforesaid two judgments that nominating students for admissions would be an unacceptable restriction in clause (6) of Article 19 of the Constitution, Parliament has stepped in and in exercise of its amending power under Article 368 of the Constitution inserted clause (5) in Article 15 to enable the State to make a law making special provisions for admission of socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes for their advancement and to a very limited extent affected the voluntary element of this right under Article 19(1)(g) of the Constitution. We, therefore, do not find any merit in the submission of the learned counsel for the petitioners that the identity of the right of unaided private educational institutions under Article 19(1)(g) of the Constitution has been destroyed by clause (5) of Article 15 of the Constitution.”
45. The Court further observed that clause (5) of article 15, which excluded the application of Article 19(1)(g), was constitutional and would not be in violation of the decisions of this court in T.M.A. Pai Foundation (supra), as subsequently followed in P. A. Inamdar (supra). Thus, on this count as well, it was held that the exception provided in clause (5) of Article 15 was reasonable, and as such this court upheld the validity of Constitution (Ninety-third Amendment) Act, 2005, inserting clause (5) of Article 15.
46. The Bench then considered the validity of the Constitution (Eighty-sixth Amendment) Act, 2002.
47. It was noticed that the majority in Society for Unaided Private Schools of Rajasthan (supra) had upheld the constitutionality of the RTE Act with a caveat that it would be inapplicable to unaided minority institutions. In that context, it was observed thus:
“4. Article 21A of the Constitution reads as follows:
21-A.Right to education.-The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.’
Thus, Article 21A of the Constitution, provides that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. Parliament has made the law contemplated by Article 21-A by enacting the Right of Children to Free and Compulsory Education Act, 2009 (for short “the RTE Act”). The constitutional validity of the RTE Act was considered by a three-Judge Bench of the Court in Society for Unaided Private Schools of Rajasthan v. Union of India [(2012) 6 SCC 1]. Two of the three Judges have held the RTE Act to be constitutionally valid, but they have also held that the RTE Act is not applicable to unaided minority schools protected under Article 30(1) of the Constitution. In the aforesaid case, however, the three-Judge Bench did not go into the question whether clause (5) of Article 15 or Article 21A of the Constitution is valid and does not violate the basic structure of the Constitution. In this batch of writ petitions filed by the private unaided institutions, the constitutional validity of clause (5) of Article 15 and of Article 21-A has to be decided by this Constitution Bench.”
(emphasis ours)
48. The validity of the Constitution (Eighty-sixth Amendment) Act, 2002, which inserted Article 21A to the Constitution of India, was considered on the anvil of the basic structure doctrine as expounded in the landmark decision of this Court in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225. Answering the issue in the negative, the Bench held that Parliament was within its bounds to insert Article 21-A and as such, the amendment would not be in violation of the basic structure doctrine.
49. Thereafter, the Court considered the objects and reasons of the Constitution (Eighty-third Amendment) Bill, 1997, which ultimately resulted in the enactment of the Constitution (Eighty-sixth Amendment) Act, 2002, and observed that the amendment was brought in force to satisfy the obligation under Article 45 of the Indian Constitution. The Bench, upon extracting the objects and reasons, opined thus:
“48. …It will, thus, be clear from the Statement of Objects and Reasons extracted above that although the directive principle in Article 45 contemplated that the State will provide free and compulsory education for all children up to the age of fourteen years within ten years of promulgation of the Constitution, this goal could not be achieved even after 50 years and, therefore, a constitutional amendment was proposed to insert Article 21-A in Part III of the Constitution. Bearing in mind this object of the Constitution (Eighty-sixth Amendment) Act, 2002 inserting Article 21A of the Constitution, we may now proceed to consider the submissions of the learned counsel for the parties.”
50. Interpreting the word ‘State’ in Article 21A, it was held that ‘State’ would mean the State which can make the law. This, the Bench held, was the dicta of the 11-judge Constitution Bench of this Court in T.M.A. Pai Foundation (supra). It was held that Article 21A must be construed harmoniously with Article 19(1)(g) and Article 30(1). It then proceeded to observe as follows:
“49. Article 21A of the Constitution, as we have noticed, states that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. The word ‘State’ in Article 21-A can only mean the ‘State’ which can make the law. Hence, Mr. Rohatgi and Mr. Nariman are right in their submission that 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. Article 21-A, however, states that the State shall by law determine the ‘manner’ in which it will discharge its constitutional obligation under Article 21-A. Thus, a new power was vested in the State to enable the State to discharge this constitutional obligation by making a law. However, Article 21-A has to be harmoniously construed with Article 19(1)(g) and Article 30(1) of the Constitution. As has been held by this Court in Venkataramana Devaru v. State of Mysore [AIR 1958 SC 255]: (AIR p. 268, para 29)
’29. … The rule of construction is well settled that when there are in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted that, if possible, effect could be given to both. This is what is known as the rule of harmonious construction.’
We do not find anything in Article 21-A 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, but the law made under Article 21-A may affect these rights under Articles 19(1)(g) and 30(1). The law made by the State to provide free and compulsory education to the children of the age of 6 to 14 years should not, therefore, be such as to abrogate the right of unaided private educational schools under Article 19(1)(g) of the Constitution or the right of the minority schools, aided or unaided, under Article 30(1) of the Constitution.”
51. Thus, this Court upheld the validity of the Constitution (Eighty-sixth Amendment) Act, 2002, and proceeded to hold that the RTE Act, insofar it is made applicable to minority schools referred to in Article 30(1), is ultra vires the Constitution of India. While overruling the decision in Society of Unaided Private Schools of Rajasthan (supra) insofar as it held that the RTE Act was applicable to aided minority schools, it was further held that the RTE Act, insofar as it is made applicable to minority schools covered under Article 30(1), aided or unaided, is ultra vires the Constitution. It was concluded thus:
“55. When we look at the RTE Act, we find that Section 12(1)(b) read with Section 2(n)(ii) provides that an aided school receiving aid and grants, whole or part, of its expenses from the appropriate Government or the local authority has to provide free and compulsory education 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. Thus, a minority aided school is put under a legal obligation to provide free and compulsory elementary education to children who need not be children of members of the minority community which has established the school. We also find that under Section 12(1)(c) read with Section 2(n)(iv), an unaided school has to admit into twenty-five per cent of the strength of Class I children belonging to weaker sections and disadvantaged groups in the neighbourhood. Hence, unaided minority schools will have a legal obligation to admit children belonging to weaker sections and disadvantaged groups in the neighbourhood who need not be children of the members of the minority community which has established the school. While discussing the validity of clause (5) of Article 15 of the Constitution, we have held that members of communities other than the minority community which has established the school cannot be forced upon a minority institution because that may destroy the minority character of the school. In our view, if the RTE 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 RTE Act insofar it is made applicable to minority schools referred in clause (1) of Article 30 of the Constitution is ultra vires the Constitution. We are thus of the view that the majority judgment of this Court in Society for Unaided Private Schools of Rajasthan v. Union of India [(2012) 6 SCC 1] insofar as it holds that the RTE Act is applicable to aided minority schools is not correct.
56. In the result, we hold that the Constitution (Ninety-third Amendment) Act, 2005 inserting clause (5) of Article 15 of the Constitution and the Constitution (Eighty-sixth Amendment) Act, 2002 inserting Article 21A of the Constitution do not alter the basic structure or framework of the Constitution and are constitutionally valid. We also hold that the RTE Act is not ultra vires Article 19(1)(g) of the Constitution. We, however, hold that the RTE Act insofar as it applies to minority schools, aided or unaided, covered under clause (1) of Article 30 of the Constitution is ultra vires the Constitution. Accordingly, Writ Petition (C) No. 1081 of 2013 filed on behalf of Muslim Minority Schools Managers’ Association is allowed and Writ Petitions (C) Nos. 416 of 2012, 152 of 2013, 60, 95, 106, 128, 144-45, 160 and 136 of 2014 filed on behalf of non-minority private unaided educational institutions are dismissed. All IAs stand disposed of. The parties, however, shall bear their own costs.”