By Jayna Kothari
A Full Bench of the Supreme Court of India delivered the long awaited judgment on the constitutionality of the Right of Children to Free and Compulsory Education Act 2009 (RTE Act). The case arose out of a series of petitions filed by several private aided and unaided schools, challenging the RTE Act and specifically Section 12(1)(c) of the law that mandated private unaided schools all across the country to admit 25% of their Class I strength with children from weaker and disadvantaged sections and provide them with free education.
One of the important questions that came up before the Supreme Court was the horizontal application of fundamental rights. This issue is really the core of the RTE Act, which mandates all private unaided schools to take in 25% of children from disadvantaged groups free of charge and to be re-imbursed only nominally by the State and requires them to follow the basic norms and standards set by the State for all schools. Although in India there has never been a direct application of fundamental rights being applied to non-State actors, the debate of horizontality of rights is not new. There are several articles in Part III of the Indian Constitution (containing the fundamental rights), which directly apply to non-State actors as well.
What is fascinating about the RTE Act and the recent judgment is that not only does it affirm the horizontality of rights argument as the Court recognises that private schools are also required to comply with the obligation to provide the right to education, but that it has used this argument for the horizontal application of social rights and not merely civil and political rights. The Indian Supreme Court has taken this argument seriously ahead of other jurisdictions, which have anti-discrimination laws covering the private sector to hold that private actors are not merely required to be perform negative duties of restraint from infringing on fundamental rights, but also to positively provide socio-economic rights guarantees such as the right to education.
The argument of horizontality of rights that was quoted in the dissenting judgment of J. Radhakrishnan was conceptualized by the Centre for Law and Policy Research on behalf of the Azim Premji Foundation as an Intervenor.
Jayna Kothari is a partner at Ashira Law, a law firm in Bangalore and is practicing in the High Court of Karnataka. She is one of the founding members of the Centre for Law & Policy Research, an organisation which aims to maintain and promote legal education and public policy research and litigation.