SOCIETY FOR UN-AIDED P.SCHOOL OF RAJASTHAN v. U.0.1 & Anr.

1.18. The Statute enacted to protect socio-economic rights is always subject to the rights guaranteed to other non-State actors under Articles 19(1)(g}, 30(1), 15(1), 16(1) · etc. Parliament has faced many obstacles in fully realizing the socio-economic rights enshrined in Part IV of the F Constitution and the Fundamental Rights guaranteed to other citizens were often found to be the obstacles. Parliament has on several occasions imposed limitations on the enjoyment of the rights guaranteed under Part Ill of the'Constitution, through constitutional amendments. G [Para 58] [782-B-D]

1.19. The State in order to achieve socio-economic rights, can remove obstacles by limiting the fundamental rights through constitutional amendments. Whenever the Parliament wanted to remove obstacles so as to make H affirmative action to achieve socio-economic justice SOCIETY FOR UN-AIDED P.SCHOOL OF RAJASTHAN v. U.0.1. 731 constitutionally valid, the same has been done by A carrying out necessary amendments in the Constitution, not through legislations, lest they may make an inroad into the fundamental rights guaranteed to the citizens. Rights guaranteed to the unaided non-minority and minority educational institutions under Article 19(1)(g) and B Article 30(1) as explained in *Pai Foundation and reiterated in **/namdar have now been limited, restricted and curtailed so as to impose positive obligation on them under Section 12(1)(c) of the Act and under Article 21A of the Constitution, which is permissible only through C constitutional amendment [Paras 71 and 81] (788-B; 792- F-H; 793-A]

1.20. Constitutional principles laid down by *Pai Foundation and **/namdar on Articles 19(1)(g), 29(2) and 0 30(1) so far as unaided private educational institutions are concerned, whether minority or non-minority, cannot be overlooked and Article 21A, Sections 12(1)(a), (b) and 12(1)(c) have to be tested in the light of those constitutional principles laid down by *Pai Foundation and E **lnamdar because ***Unnikrishnan was the basis for the introduction of the proposed Article 21A and the deletion · of clause (3) from that Article. Interpretation given by the courts on any provision of the Constitution gets inbuilt in the provisions interpreted, that is, Articles 19(1)(g), 29(2) and 30. [Para 82] [794-B-C] F

1.21. The principles laid down in judgments in *Pai Foundation and **/namdar still hold good and are not whittled down by Article 21A, nor any constitutional amendment was effected to Article 19(1)(g) or Article 30(1). G Article 21Awas inserted in the Constitution on 12.12.2002 and the judgment in *Pai Foundation was delivered by this Court on 31.10.2002 and 25.11.2002. Parliament is presumed to be aware of the law declared by the Constitutional Court, especially on the rights of the H 732 SUPREME COURT REPORTS [2012) 2 S.C.R. ·A unaided non-minority and minority educational institutions, and in its wisdom thought if fit not to cast any burden on them under Article 21A, but only on the State. ! [Para 83] [794-D-F] i 8

1.22. Principles laid down by *Pai Foundation and in **tnamdar while interpreting Articles 19(1)(g), 29(2) and 30(1) in respect of unaided non-minority and minority educational institutions like schools upto the level of under-graduation are all weighty and binding C constitutional principles which cannot be undone by statutory provisions like Section 12(1)(c), since those principles get in-built in Article 19(1)(g), Article 29(2) and Article 30(1) of the Constitution. Further, Parliament, while enacting Article 21A, never thought it fit to undo those 0 principles and thought it fit to cast the burden on the State. [Para 88] [796-B-F]

1.23. Section 12(1)(c) seeks to achieve what cannot be achieved directly especially after the interpretation placed by *Pai Foundation and **tnamdar on Article E 19(1)(g) and Article 30(1) of the Constitution. */namdar has clearly held that right to set up, and administer a private unaided educational institution is an unfettered right, but 12(1)(c) impose fetters on that right which is constitutionally impermissible going by the principles .laid F down by *Pai Foundation and **tnamdar. Section 12(1)(c) can be given effect to, only on the basis of principles of voluntariness and consensus laid down in *Pai Foudnation and **/namdar or else, it may violate the rights guaranteed to unaided minority and non-minority G institutions. [Para 117] [812-H; 813-A-B] 1~24. Constitution of India has expressly conferred the power of judicial review on courts and the legislature cannot disobey the constitutional mandate or the H constitutional principle laid down by courts under the SOCIETY FOR UN-AIDED P.SCHOOL OF RAJASTHAN v. U.0.1. 733 guise of social inclusiveness. Smaller inroad like Section A 12(1)(c) may lead to larger inroad, ultimately resulting in total prohibition of the rights guaranteed under Articles 19(1)(g), 29(2) and 30(1) as interpreted by the *Pai Foundation and **/namdar, Court, in such situations, owe a duty to lift the veil of the form and appearance to B discover the true character and nature of the legislation and if it has the effect of bypassing or jgnoring the constitutional principles laid down by the Constitutional Courts and violate fundamental rights, the same has to be nullified. [Para 118] [813-C-E] c

1.25. Constitutional principles laid by courts get assimilated in Articles 19(1)(g), 29(2) and 30(1) and can be undone not by legislation, but only by constitutional amendments. The object to be achieved by the legislation may be laudable, but if it is secured by a method which offends fundamental rights and constitutional principles, the law must be struck down as unconstitutionat Section 12(1 )(c), if upheld would resurrect ***Unni Krishnan scheme which was nullified by *Pai Foundation and E **/namdar. [Para 119] [813-F-H; 814-A] 0

1.26. So far as unaided educational institutions both minority and non-minority are concerned, the obligation cast under Section 12(1)(c) is only directory and the said provision is accordingly read down holding that it is open F to the private unaided educational institutions, both minority and non-minority, at their volition to admit children who belong to the weaker sections and disadvantaged group in the neighbourhood in their educational institutions as well as in pre-schools. [Para G 120] [814-B-C]

1.27. Not only Section 12(1)(c), but rest of the provisions in the Act are only directory so far as private unaided institutions are concerned, but they are bound H 734 SUPREME COURT REPORTS [2012] 2 S.C.R. A by the declaration of law by *Pai Foundation and **/namdar, like there shall be no profiteering, no maladministration, no demand for capitation fee and so on and they have to follow the general laws of the land like taxation, public safety, sanitation, morality, social B welfare etc. [Para 128] [818-C-D]

1.28. Article 51A(k) of the Constitution states that it shall be the duty of every citizen of India, who is a parent or guardian, to provide opportunities for education to his C child. Parents have no constitutional obligation under Article 21A of the Constitution to provide free and compulsory education to their children, but only a constitutional duty, then one fails to see how that obligation can be offloaded to unaided private educational institutions against their wish, by law, when they have neither a duty under the Directive Principles of State policy nor a constitutional obligation under Article 21A, to those 25% children, especially when their parents have no constitutional obligation. [Para 103] [804-D-F] 0 E F *T.M.A. Pai Foundation and Ors. v. State of Kamataka and Ors. (2002) 8 SCC 481: 2002 (3) Suppl. SCR 587; **P.A. lnamdar and Ors. v. State of Maharashtra and Ors. (2005) 5- SCC 537: 2005 (2) Suppl.

SCR 603 - followed Ashok Kumar Thakur v. Union of India and Ors. (2008) 6 SCC 1: 2008 (4) SCR 1; S.P. Gupta v. President of India and Ors. 1981 sec Supp. (1) 87 - relied on. Indian Medical Association v. Union of India and Ors. (2011) 7 SCC 179; Ahmedabad St. Xavier's College Society G and Anr. v. Stateof Gujarat and Anr. (1974) 1 sec 717: 1975 (1) SCR 173; Rev. Sidhajbhai Sabhai and Ors. v. State of Bombay and Anr. (1963) 3 SCR 837; People's Union for Democratic Rights and Ors. v. Union of India and Ors. (1982) 3 SCC 235: 1983 (1) SCR 456; Vishaka and Ors. v. State H . ··, SOCIETY FOR UN-AIDED P.SCHOOL OF RAJASTHAN V. U.0.1. 735 of Rajasthan (1997) 6 SCC 241: 1997 (3) Suppl. SCR 404; A Consumer Education and· Research Centre and Ors. v. Union of India and Ors. 1995 (3) SCC 42 : 1995 (1) SCR 626; Paschim Bahga Khet Majdoor Samity and Ors. v. State of WestBengal and Anr. 1996 (4) SCC 37 : 1996 (2) Suppl. SCR 331; Stateof Punjab and Ors. v.

Ram Lubhaya Bagga B and Ors. 1998 (4) SCC 117: 1998 (1) SCR 1120; Social Jurist, A Lawyers Group v. Government of NCT of Delhi and Ors. (140) 2007 DLT 698; Dharamshila Hospital and Research Centre v. Social Jurist and Ors. Judgment of Supreme Court in SLP (C) No.18599 of 2007 decided on C 25.07 .2011; Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors. 1985 (3) SCC 545 : 1985 (2) Suppl. SCR 51; Municipal Corporation of Delhi v. Gurnam Kaur (1989) 1 SCC 101 : 1988 (2) Suppl. SCR 929; Sodan Singh and Ors. v. New Delhi Municipal Committee and Ors. 1989 D (4) SCC 155 : 1989 (3) SCR 1038; Ahmedabad Municipal Corporation v. Nawab Khan Guiab Khan and Ors. 1997 (11) · SCC 121 : 1996 (7) Suppl. SCR 548; Bandhua Mukti Morcha v. Union of India and Ors. 1984 (3) SCC161: 1984 (2) SCR 67; l.R. Coelho (Dead) by LRs v. State of Tamil E Nadu and Ors. 2007 (2) SCC 1 : 2007 (1) SCR 706; State of Madras v. Shrimati Champakam Dorairajan 1951 (2) SCR 525; Indra Sawhney v.

Union of India aQd Ors. (1992) Supp. 3 SCC 212; Jagdish Lal and Ors. v. State of Haryana and Ors. (1997) 6 SCC 538; Ajit Singh and Ors. v. State of Punjab F and Ors. (1999) 7 sec 209: 1999 (2) Suppl. SCR 521; M. Nagaraj and Ors. v. Union of India (2006) 8 SCC 212: 2006 (7) Suppl. SCR 336; Bengal Immunity Company Limited v. State of Bihar and Ors. AIR 1955 SC 661: 1955 SCR 603; People's Union for Civil Liberties (PUCL) and Anr. v. Union G of India (UOI) and Anr. 2003 (4) sec 399: 2003 (2) SCR 1136; Avinash Mehrotra v. Union of India and Ors. 2009 (6) SCC 398: 2009 (5) SCR 913 - referred to. Soobramoney v. Minister of Health (KwaZulu-NataQ 1998 H 736 SUPREME COURT REPORTS [2012] 2 S.C.R. A (1) SA 765(CC); Government of the Republic of South Africa and Ors. v. Grootboom and Ors. 2001 (1) SA 46 (CC); Minister of Health and Ors. v. Treatment Action Campaign and Ors. (TAC) 2002 (5) SA 721 (CC); Ex parte Chairperson of the Constitution of the Republic of South Africa 1996 (4) B SA 744 (CC); Minister of Public Works and Ors. v.

Kyalami Ridge Environmental Association and Ors. 2001 (7) BCLR 652 (CC); President of the Republic of South Africa v. Modderklip Boerdery (Pty). Ltd. 2005 (5) SA 3 (CC); Brown v. Board of Education 347 U.S. 483; Cruz def Valle Balle C Bermudez v.Ministry of Health and Social Action - Case No.15. 789 Decision No.916 (1999); Wilson v. Medical Services Commission of British Columbia (53) D.L.R. (4th) 171; Smit v. Al/wright 321 U.S. 649 (1944); Governing Body orthe Juma Musjid Primary School v. Minister for Education D (2011) ZACC 13; Crowley v. Ireland (1980)1R 102- referred to.

2.

Applying the principle laid down in *Pai' Foundation, **/namdar, #St. Stephen and in '1#/.Re. Kera/a E Education Bill, clause 12(1 )(b) directing the aided educational institutions minority and non-minority to provide admission to the children of the age group of 6 to14 years would not affect the autonomy or the rights guaranteed under Article 19(1)(g) or Article 30(1) of the F Constitution of India. Therefore, the challenge against the validity of Section 12(1)(b) is rejected and it is held that, the provision is constitutionally valid. [Para 122] [815-F G]

2.

So far as the rest of the schools are concerned, G including aided minority and non-minority educational institutions, they have necessarily to follow the various provisions in the Act since the validity of Section 12(1)(b) of the Act has been upheld. [Para 129] [818-E, F] H . *T.M.A. Pai Foundation and Ors. v. State of Kamataka SOCIETY FOR UN-AIDED P.SCHOOL OF RAJASTHAN v. U.0.1. 737