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)
29. A three-Judge Bench had the occasion to consider a challenge to the constitutionality of the RTE Act, specifically to Sections 3, 12(1)(b) and 12(1)(c) thereof, in W.P. 95 of 2010 (Society for Unaided Private Schools of Rajasthan v. Union of India) and other connected writ petitions. Vide order dated 6th September, 2010, (2012) 6 SCC 102, the Bench of three-Judges had referred the matter to a larger Bench. The reference order reads thus:
“1. Since the challenge involved raises the question as to the validity of Articles 15(5) and 21A of the Constitution of India, we are of the view that the matter needs to be referred to the Constitution Bench of five Judges.
2. Issue rule nisi. The learned Solicitor General waives service of the rule. All the respondents are before us. The counter-affidavits be filed within four weeks.
3. These petitions be placed before the Constitution Bench for directions on a suitable date.”
30. However, despite the aforesaid reference, the same remained unanswered. The three-Judge Bench then proceeded to hear and dispose of the matter by a majority of 2:1 vide its judgment in Society for Unaided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1.
31. The issue in Society for Unaided Private Schools of Rajasthan (supra) is well encapsulated at paragraph 69 of the minority judgment, reading thus:
“69. ………… Controversy in all these cases is not with regard to the validity of Article 21-A, but mainly centres around its interpretation and the validity of Sections 3, 12(1)(b) and 12(1)(c) and some other related provisions of the Act, which cast obligation on all elementary educational institutions to admit children of the age 6 to 14 years from their neighbourhood, on the principle of social inclusiveness. The petitioners also challenge certain other provisions purported to interfere with the administration, management and functioning of those institutions.”
32. The issues so framed were approved by the majority, as it appears from the following passage:
“2. The judgment of *** fully sets out the various provisions of the RTE Act as well as the issues which arise for determination, the core issue concerns the constitutional validity of the RTE Act.”
33. Section 3 of the RTE Act affirms the right of a child between 6 and 14 years of age, to receive free and compulsory elementary education in a neighbourhood school. Section 12(1)(c) read with Sections 2(n)(iii) and (iv) imposes an obligation on unaided private educational institutions, both minority and non-minority, to admit in Class I (and in pre-school, if available) at least 25% of their strength from among children covered under Sections 2(d) and 2(e). Section 12(1)(b) read with Sections 2(n)(ii) provides imposes a similar obligation on aided private educational institutions.
34. per incuriam, challenge to the constitutionality of most of the provisions of the RTE Act was rejected. However, difference of opinion arose as to the applicability of the RTE Act to unaided minority and unaided non-minority educational institutions.
35. The minority view held that the RTE Act was not applicable to any unaided educational institution – whether minority or non-minority – as it infringed their Fundamental Rights under Articles 19(1)(g) and 30(1) of the Constitution.
36. The minority also took the view that the obligation under Section 12 (1)(c) cannot be cast on unaided private institutions, whether minority or non-minority. It was emphasized that private citizens running a private school, receiving no aid from the State, have no constitutional duty to assume the welfare responsibilities of the State. Citing the decisions of this Court in T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 and P. A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537, the learned Judge concluded that compulsory seat-sharing and fee regulation by the State constituted an unjust encroachment on the autonomy of such institutions and their Fundamental Rights under Articles 19(1)(g) and 30(1). Furthermore, it was held, as regards unaided institutions (whether minority or non-minority), that Section 12(1)(c) can be implemented only on the basis of voluntariness and consensus, as otherwise, it may violate the autonomy of such institutions. Accordingly, Section 12(1)(c) was read down as being merely directory qua all unaided educational institutions (minority and non-minority).
37. The majority, while agreeing that the RTE Act could not be applied to unaided minority institutions in view of the protection under Article 30(1), held that the RTE Act, particularly the obligation imposed by Section 12(1)(c), was applicable to aided minority institutions. The majority reasoned that such a provision constituted a reasonable restriction on the Fundamental Right under Article 19(1)(g), permissible under Article 19(6).
38. The majority further held that Section 12(1)(c) meets the test of reasonable classification under Article 14 of the Constitution and constitutes a reasonable restriction on the right to establish and administer educational institutions under Article 19(1)(g). Inter alia, the court: (i) observed that Article 21-A left it for the State to determine by law how the obligation of providing free and compulsory education may be fulfilled; (ii) emphasized that the Fundamental Rights must be interpreted in conjunction with the Directive Principles of State Policy, and that any law which limits Fundamental Rights within the limits justified by the Directive Principles can be upheld as a “reasonable restriction” under Articles 19(2) to 19(6); (iii) underscored that since education is a charitable activity (and not commercial), imposing an obligation on educational institutions under Section 12(1)(c) constitutes a reasonable restriction on their Fundamental Right under Article 19(1)(g),which is a qualified right; (iv) further traced that Section 12(1)(c) is a reasonable restriction as it advances the State’s obligation to provide education; (v) clarified that the RTE Act does not override the rights recognized in T.M.A. Pai Foundation (supra) and P. A. Inamdar (supra), as those decisions pertained to higher/professional education and did not address the interpretation of Article 21-A or the provisions of the RTE Act.
(This case now stands overruled by Anjuman Ishaat E. Taleem Trust v. State of Maharashtra, (SC) : 2025 INSC 1063 on the point of exemption to minority institution from the applicability of Section 12(1)(c) RTI Act, however, the question was advised to be referred to larger bench by division bench in the judgment of Anjuman Ishaat E. Taleem case, the reference for larger bench is still under consideration.)