Public Duties and Private Schools: the Indian Supreme Court’s Landmark Ruling

Gautam Bhatia - 23rd August 2012

Problems of affordability and access have perennially plagued the Indian educational system. State-run schools, while affordable, have suffered from a severe absence of quality in every respect; and private schools have been beyond the financial reach of a vast majority of Indians. Over the years, the government and the judiciary undertook many efforts to rectify the situation, culminating in the passage of the Right of Children to Free and Compulsory Education Act (‘RtEA’) in 2009. On 12th April 2012, a three-judge bench of the Indian Supreme Court, by a 2:1 majority, rejected a constitutional challenge to the RtEA12th April, in a judgment that is bound to have far-reaching consequences for basic education in India.

A brief legal background is apposite at this point. The Indian Constitution, originally, did not guarantee the right to education as a justiciable, legally enforceable right. It placed the right to education (Article 41), the provision of free and compulsory education for children until the age of fourteen (Article 45), and special provisions for educating the economically and socially weaker sections of society (Article 46) among the ‘directive principles of State policy’ (‘DPSPs’) – i.e., aspirational, non-enforceable legislative goals that the Constitution exhorts the government to try and achieve. Over the years, however, the distinction between the Bill of Rights (Part III), and the DPSPs has been elided by the judiciary in many ways, and particularly as far as education is concerned.  In Mohini Jain v State of Karnataka, for instance, the Supreme Court held that a ‘right’ to education ‘flowed from’ the enforceable right to life and personal liberty guaranteed by Article 21 of the Constitution, since there could be no ‘dignified enjoyment of life’, or the realization of other rights, without adequate education. Unnikrishnan v State of Andhra Pradesh gave specificity to the Mohini Jain holding by imposing an obligation upon the State, again flowing from Article 21, to provide free education to all children until the age of fourteen. The State responded to Unnikrishnan by amending the Constitution in 2002, and crystallizing the dictum of the Court in a new Article 21A. The RtEA 2009, then, enacted by the government to fulfill its obligations under Article 21A and Unnikrishnan.

Of particular interest to us is S. 12(1)(c) of the RtEA, which requires privately-run schools, receiving no aid from the State, to admit, ‘in Class I, to the extent of at least 25% of the strength of that class, children belonging to weaker sectionand disadvantaged group in the neighbourhood and providefree and compulsory elementary education till its completion.’ In other words, part of the burden of fulfilling Article 21A obligations is placed upon what, in strict technical terms, is a non-State entity (the private school).

In Society for Un-Aided Private Schools of Rajasthan v Union of India (the ‘RtEA case’) an association of private, un-aided schools challenged this provision, complaining that it violated their freedom to practice any profession, or carry on any trade or business, guaranteed by Article 19(1)(g) of the Constitution. This argument formed the core of the case, and the Court rejected it, on two grounds. First, Article 19(6) of the Constitution allows the government to impose ‘reasonable restrictions… in the interests of the public’ upon the 19(1)(g) right. The Court held that what was enjoined by a DPSP automatically counted as a ‘reasonable restriction’ under Article 19(6). Secondly, the Court held, in line with previous cases, that running a private educational institution could only qualify for protection under Article 19(1)(g) if education was to be treated as a charitable enterprise. That being the case, the Court implied that an arrangement requiring these charitable enterprises to help weaker sections of society was a reasonable restriction on their freedom. The Court went on to uphold the manner of classification provided by the RtEA, rejected the idea of ‘merit playing any role at the level of access to basic education, and exempted minority institutions from the purview of the RtEA.

Apart from an account of what the Court decided, it is also worthwhile to examine, briefly, what it did not decide. It did not decide the question of whether private schools were themselves subject to the obligations imposed by Article 21A. In Unnikrishnan, certain remarks made by Justice Mohan in his concurring judgment appear to imply that, since they perform a public function, private educational institutions may be subjected to providing equal treatment to all, as guaranteed by Article 14 of the Constitution. In the RtEA case, a slightly different argument was raised, asking the Court to apply the bill of rights horizontally in order to bring private schools under the ambit of Article 21A. It was rejected by Justice Radhakrishnan in his dissenting opinion, and not addressed by the majority. The question, for the moment, remains open.

Gautam is a recent BCL graduate at Balliol College, Oxford. He will be progressing to the MPhil  in Law at Oxford later this year.

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