Education imparted by heart can bring revolution in the society- Maulana Abul kalam azad

Background:
The Right to education was initially not included as a fundamental right in the constitution of India and our founding fathers has included education as a Directive principles of state policy under Part IV of the constitution of India.

Article 45 (unamended)
Provision for free and compulsory education for children The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years

The directive under Article 45 was confined not merely to primary education but to the education up to the age of 14 years irrespective of stage of education.

In Re Kerala education Bill[1]
The court emphasized that solemn obligation is placed on state by Article 45 which can be discharged by it through governmental and aided schools and that Article 45 doesn’t require that obligation to be discharged at the expense of minority communities.

In Mohini Jain v. State of Karnataka[2]
Without making the right to education a reality, the fundamental rights would remain beyond the reach of large majority which is illiterate. Capitation fees is nothing but a price for selling education and this amounts to commercialization of education.

The court observed that capitation fees is nothing but a price for selling education and this would amount to commercialization of education. The court took an extremely expansive view of state obligation to provide education to everyone at all levels. This approach created practical hurdles to meet day to day economic issues for private educational institutions as well as state.
The approach of court was guided by an assumption of seeing education not as an occupation under sub clause (g) of clause (6) of article 19.

In Unni Krishnan v. State of Andra Pradesh[3]
The Right to education is implicit in Article 21 read with Article 41, 45 and 46 but merely to rely on directive principles per se doesn’t mean that each and every obligation casted by directive principles would automatically included in purview of Article 21.

The State obligation limited until the child attain the age of 14 years and beyond that stage, state obligation to provide education is subject to the limits of economic capacity and development of state. The obligation of state can be discharged by state either through governmental schools or private aided schools.

Article 14 applies to state Institutions and its application cannot be excluded by supplementary activity. The court evolved a scheme regarding level of fees chargeable by private educational institutions.

The scheme framed by court in Unni Krishnan and followed by government held to be a unreasonable restriction under clause 6 of Article 19 in TMA Pai foundation case[4].

Constitutional (Eighty Sixth Amendment) Act, 2002:

Article 21A
The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine

Article 45 (amended)
The State shall endeavor to provide early childhood care and education for all children until they complete the age of six years

Article 51A (K)
Fundamental duty of every citizen who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years

Article 21A read with sub-clause (a) of clause (1) of Article 19 has been construed as giving all children the right to have primary education in a medium of their choice.[5]
Article 21 A also have been construed as a fundamental right of each and every child to receive education free from fear of security and safety so that children have a right to receive education in a sound and safe building.[6]

Right To Free & Compulsory Education Act:

In 2001-2002, the Government launched Sarva Shiksha Abhiyan to make elementary education free. However, no central legislation was enacted to make the right a reality despite the court noting in PA Inamdar[7].

In 2008, Ashok kumar Thakur v. UOI[8], the court directed the Union of India to set up a law on it within 6 months.

Accordingly, the Right of children to free and compulsory education act, 2009 (RTE) came into picture.

The Validity of RTE was challenged in Unaided private schools of Rajasthan case and same was upheld by apex court. However, the majority held that the section 12 & 18 of the act is void to the extent of its applicability on Unaided minority Institutions due to its violation to Article 30(1).

As a consequence of this judgment, the parliament brought an amendment act of 2012 to exclude Minority Unaided from the purview of the act.

Constitutional (Ninety-Third Amendment) Act, 2005:

In PA Inamdar , It was held that the state power to regulate under Article 19(6) cannot extend to reservation in private unaided educational Institutions and would violate their fundamental right under Article 19(1)(g) as said reservation policy is not a reasonable restriction within meaning of Article 19(6).

Thus, to enable such a power the parliament enacted clause 5 of Article 15 so that it can enable itself to do which was disabled by Article 19(6).

Clause 5 of Article 15 inserted:
Nothing in this article or in Sub-clause (g) of Clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in Clause (1) of Article 30.

The Validity of Article 15(5) was upheld by apex court in Ashok Kumar Thakur (2008)[9] but the Judgment gave no remark with respect to Private Unaided.
Bhandari, J held that the Article 15(5) violates basic structure of the constitution of India.
In Pramati Educational and cultural Trust case[10]
The constitutional validity of Article 21A and Article 15(5) was challenged before apex court on ground of being violation to Article 14, 19(1)(g), 21, 30(1) and basic structure.

Court observations:

1. Article 15(5) is not an exception but an enabling provision to achieve the social justice set out in preamble and Part-IV.
    
2. TMA Pai foundation held that right to administer private educational institutions is an occupation within Article 19(1)(g) and little % of seats reservation by state will not affect their autonomy.
    
3. PA Inamdar has clarified that reservation policy of state on unaided Institutions is not a regulatory measure and thus violates Article 19(1(g).
    
4. Article 15(5) has a very limited purpose. i.e. for admission and nothing more. If state do more than for which it is enabled by Article 15(5) then it would certainly be no longer can claim a immunity under Article 15(5) and will straight away be in violation to Article 19(1)(g).
    
5. Rights of minority under Article 30(1) will not be defeated if they give admission to non minority into their college. Due to over lapping Interest of Socially educationally backward classes and that of minority, the parliament has excluded minority institutions from purview of Article 15(5).
    
6. The essence of secularism is to promote and preserve different people and same is done by excluding Article 30(1) and thus secularism is not violated.
    
7. Article 21A is to be harmonious constructed with Article 19(1)(g) and Article 30(1).
    
8. Article 21A has created a new power to the effect of voluntariness of freedom under Article 19(1). This power is an Independent power & different from Article 19(2) to (6).
    
9. So long as these additional power is been used to fulfill objectives of preamble and Directive principles, there is no violation of Fundamental right under sub-clause (g) of clause (1) of Article 19.
    
10. Section 12 of RTE mandates private unaided educational institutions to give 25 % reservation to children ranging age 6 go 14 years. Their expenses will be reimbursed by state. Thus, in any manner it is only the state who is taking the charge to perform its obligation under Article 21A.

Decision:

1. Minority whether aided or unaided under Article 30(1) cannot be touched upon by RTE act, 2009
2. RTE continue to be applied on private unaided because of Article 15(5) plus additional power of state under Article 21A.

Author Remarks:

1. The court in this case has upheld the law which infringing the fundamental right under Article 19(1)(g) and has failed to pass the test of reasonable restrictions under Article 19(6) but taking recourse to Article 21A. By doing the same, the court trying to evolve the doctrine of exclusivity which has become a dead letter now.
   
   The fundamental rights conferred by Part III are not distinct and mutually exclusive rights. Each freedom has different dimensions and merely because the limits of interference with one freedom are satisfied, the law is not freed from the necessity to meet the challenge of another guaranteed freedom. The decision in A. K. Gopalan case gave rise to the theory that the freedoms under Articles 19, 21, 22 and 31 are exclusive - each article enacting a code relating to the protection of distinct rights, but this theory was overturned in R. C. Cooper case where Shah, J., speaking on behalf of the majority pointed out that Part III of the Constitution weaves a pattern of guarantees on the texture of basic human rights. The guarantees delimit the protection of those rights in their allotted fields they do not attempt to enunciate distinct rights.[11]
   
   
2. The court justification for giving additional power to state under Article 21A so as to curtail the freedom under Article 19(1)(g) is for giving effect to the Directive principles under Part-IV & objectives of Preamble.
   
   Conditions of freedom and a vibrant assertion of civil and political rights promote a constant review of the justness of socio-economic programmes and of their effectiveness in addressing deprivation and want. Scrutiny of public affairs is founded upon the existence of freedom. Hence civil and political rights and socio-economic rights are complementary and not mutually exclusive[12].
   
   The Indian Constitution has maintained a balance between the fundamental freedoms and the DPSP, therefore, giving absolute primacy to one, would disturb the harmony and balance sought by the founding fathers of our constitution. The goals set to be achieved in part 4 are to be achieved by purity of mean and not at the cost of fundamental freedoms. These two should go hand in hand[13]

Conclusion:
The fundamental rights represent the basic values cherished by the people of this country they were included in the Constitution in the hope and expectation that one day the tree of true liberty would bloom in India. since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent.

They weave a pattern of guarantees on the basic-structure of human rights and impose negative obligations on the State not to encroach on individual liberty in its various dimensions. It is apparent from the enunciation of these rights that the respect for the individual and his capacity for individual Volition which finds expression there is not a self-fulfilling prophecy. Its purpose is to help the individual to find his own liability, to give expression to his creativity and to prevent governmental and other forces from ‘alienating’ the individual from his creative impulses.[14]

Hence, State cannot use one Fundamental right or Directive Principles to curtail another Fundamental right as by doing the same, the idea of achieving constitutionalism, the goal of egalitarian society, the concept of pluralism and the constitutional morality would remain a social distancing objective.

End-Notes:

1. AIR 1958 SC 956
2. AIR 1992 SC 1858
3. AIR 1993 SC 2178
4. AIR 2003 SC 355
5. Associated Management of Primary and secondary schools in Karnataka Karnataka (2008), 4 Kar LJ 593
6. Avinash Mehrotra (2009) 6 SCC 398
7. PA Inamdar (2005) 6 SCC 537
8. Ashok kumar Thakur (2008) 6 SCC 1 : (2008) 5 JT 1
9. (2008) 5 JT 1
10. MANU/SC/0311/2012 : (2012) 6 SCC 102]
11. Maneka Gandhi v. Union of India, AIR 1978 SC 597
12. Justice K.S. Puttaswamy v. Union of India (2017)10SCC 1
13. MANU/SC/0075/1980 : (1980) 3 SCC 625]
14. Granville Austin in ‘The Indian Constitution - Cornerstone of a Nation

Disclaimer:
The views and opinions expressed in this article are those of the authors and do not necessarily reflect the official policy or position of any agency of the Indian government. Examples of analysis performed within this article are only examples. They should not be utilized in real-world analytic products as they are based only on very limited and dated open source information. Assumptions made within the analysis are not reflective of the position of any Indian government State.

The author is a Practicing company secretary and founder of Budhiraja & co.  He is a Second Year Law student at faculty of law, University of Delhi besides associated as Para Legal volunteer with Delhi State Legal Service authority and core member of moot court society of its college.

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