A five-judge Constitution Bench comprising Chief Justice R.M. Lodha and Justices A.K. Patnaik, Dipak Misra, S.J. Mukhopadhaya and Ibrahim Kalifulla also upheld the provisions of the Right of Children to Free and Compulsory Education Act, 2009, and the Right of Children to Free and Compulsory Education Rules, 2010.
The Constitution 93rd Amendment Act, 2005, inserting clause (5) in Article 15 enables the State to make special provisions for members of the SCs, STs and socially and educationally backward classes, for admission to all educational institutions, including private unaided institutions, but except minority institutions. The right to education law was enacted by Parliament in 2009 by inserting Article 21A to provide free and compulsory education to children between 6 and 14 years.
It imposed obligations on the schools, which included privately-managed unaided educational institutions to admit at least 25% students from weaker sections. A three-judge Bench upheld the constitutional validity of this Act by a majority of 2:1. On a reference that the matter ought to have been decided by a Constitution Bench, it was heard by a five-judge Bench.
Writing the judgment, Justice Patnaik, however, said the minority aided educational institutions could not be compelled to provide free and compulsory education to children belonging to weaker sections. To this extent the Bench overruled the three judges' decision upholding the RTE law.
The Bench held that the 93rd Constitution Amendment inserting clause 5 in Article 15 to provide for reservation to weaker sections in admission to unaided private educational institutions did not violate the basic structure of the Constitution.
The Bench said “Article 15 (5) is consistent with the socialistic goals set out in the Preamble and the directive principles and to ensure the march and progress of the weaker sections resulting in progress to socialistic democratic State establishing the egalitarian ethos/egalitarian equality, which is the mandate of the Constitution. The Right to Education Act enacted pursuant to Article 21 A of the Constitution to provide for admission of children in unaided private educational institutions (UPEIs) does not in any manner change or destroy the identity or abrogate the fundamental right of UPEIs guaranteed under Article 19(1)(g) (right to carry on any profession or trade).”
The Bench agreed with Solicitor-General Mohan Parasaran's submissions and said “Article 15(5) advances the constitutional goals and strengthens the objectives sought to be achieved by the Constitution and enables the Parliament to undertake legislative measures in the said direction. Far from either affecting any basic features of the constitution or undermining or affecting its basic structure, it strengthens it.”
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