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IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) No. 416 OF 2012
Pramati Educational & Cultural
Trust & Ors.
Petitioners
Versus
Union of India & Ors.
Respondents
WITH
WRIT PETITION (C) No. 152 OF 2013,
WRIT PETITION (C) No.1081 OF 2013,
WRIT PETITION (C) No. 60 OF 2014,
WRIT PETITION (C) No. 95 OF 2014,
WRIT PETITION (C) No.106 OF 2014,
WRIT PETITION (C) No.128 OF 2014,
WRIT PETITION (C) No.144 OF 2014,
WRIT PETITION (C) No.145 OF 2014,
WRIT PETITION (C) No.160 OF 2014,
AND
WRIT PETITION (C) No.136 OF 2014
JUDGMENT
A. K. PATNAIK, J.
This is a reference made by a three-Judge Bench of
this Court by order dated 06.09.2010 in Society for
Page1
Page2
the
State,
other
than
the
minority
educational
In
institutions
the
and
aforesaid
aided
case,
educational
however,
the
Page5
by
the
Constitution
(Ninety-third
Validity of clause
Constitution
(5)
of
Article
15
of
the
5.
conferred
by
Article 14 or
Article 19 of
the
advancement
of any
Mr. Rohatgi
He
Article 19(1)(g),
basic
feature
of
the
Page9
10
the
Scheduled
Tribes
insofar
as
such
special
Page10
11
educational
educational
institutions
institutions
by
the
and
unaided
State,
such
private
private
12
excellence.
unless
it
is
accompanied
by
the
right
to
Page12
13
provisions
relating
to
admission
to
private
justice
set
out
in
the
Preamble
of
the
Page13
14
element
of
the
basic
structure
of
our
He
Page14
15
He submitted that
Page15
16
Page16
17
backward
classes
of
citizens
and
the
18
He
19
20
to
educational
institutions
including
of
seats
in
private
educational
He
Page20
21
admissions
in
the
unaided
professional
by
the
Constitution
(Ninety-Third
special
provision,
by
law,
for
the
Scheduled
Tribes
insofar
as
such
special
He
Page21
22
by
the
constitutional
amendment
is
Parasaran
institutions
next
referred
submitted
to
in
that
Article
30
minority
of
the
Page22
23
14
of
the
Constitution
is
therefore
misconceived.
Opinion of the Court on the validity of clause (5) of
Article 15 of the Constitution:
16.
became
the
Constitution
(Ninety-Third
24
25
ghats,
roads
and
places
of
public
resort
As the object of
26
provision
to
make
equality
of
opportunity
17.
27
te
equality
of
opportunity
in
matters
of
public
It is for the
that
the
establishment
and
running
of
an
In paragraph 20 of
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28
29
private
educational
institutions
under
Page29
30
31
Page31
32
under
Parliament
Article
made
19(1)(g)
the
of
the
Constitution,
Constitution
(Ninety-third
of
any
socially
and
educationally
33
In fact,
has held in
Page33
34
qualified
maladministration
management.
staff)
by
and
those
the
in
prevention
charge
of
of
the
35
for
advancement
of
socially
and
Page35
36
of
any
socially
and
educationally
Page36
37
confined
to
admission
of
such
socially
and
of
the
Constitution
by
the
constitutional
distinction
between
aided
and
unaided
alike
in
the
matter
of
making
special
Page37
38
educational
institution
is
that
private
private
unaided
educational
institutions
are
In our
39
Constitution.
Clause
(5)
of
Article
15
of
the
Castes
and
the
Scheduled
Tribes
to
Page39
40
of
41
42
43
44
Scheduled Tribes.
to
communities
other
than
the
minority
to
in
clause
(1)
of
Article
30
of
the
45
therefore,
the
exclusion
of
minority
educational
Page45
46
will
not
be
possible
if
private
educational
Page46
47
This
grown
up
to
be
good
administrators,
by
admission
from
amongst
the
is
contrary
to
the
Preamble
of
the
The goals of
48
We, therefore,
of
the
learned
counsel
for
the
petitioners:
Page48
49
Accordingly, the
Two
Page49
50
Page50
51
submitted
that
the
minority
opinion
of
He
Page51
52
and
therefore
Government
and
Parliament
would
of
include
India
and
the
the
P.D.
Page52
53
would
not
include
private
unaided
Amendment)
Act,
2002,
Article
45
the
Constitution,
for
free
and
compulsory
Page53
54
He submitted that
Page54
55
They
T.R.
Andhyarujina,
learned
senior
counsel
Page55
56
of
this
Court
right
from
the
Kerala
They
They submitted
57
They submitted
of
providing
free
and
compulsory
58
He submitted that in
weaker
sections
of
society
and
from
within
the
meaning
of
Article
12
of
the
Page58
59
He submitted that
provide
free
and
compulsory
elementary
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60
minority
institutions,
Mr.
Vishwanathan
in
Society
for
Unaided
Private
Schools
of
aided
minority
schools.
He
submitted
that
to
Free
And
Compulsory
Education
(Amendment) Act, 2012, so as to provide in subsection (4) of Section 1 of the 2009 Act that subject to
the provisions of Articles 29 and 30 of the Constitution,
the
provisions
conferment
of
of
the
rights
2009
on
Act
children
shall
to
apply
to
free
and
the
compulsory education.
61
62
63
even
after
50
years
and,
therefore,
64
65
66
our
considered
opinion,
therefore,
by
the
Page66
67
before
this
constitutional
amendment
could
not
be
By exercising this
Page67
68
seeks
to
achieve
this
It will be clear from the aforesaid extract that the 2009 Act
intended to achieve the constitutional goal of equality of
opportunity through inclusive elementary education to all
and also intended that private schools which did not
receive government aid should also take the responsibility
Page68
69
and
completion.
the
2009
compulsory
elementary
education
till
its
such
school
shall
be
reimbursed
expenditure so incurred by it to the extent of per-childexpenditure incurred by the State, or the actual amount
charged from the child, whichever is less, in such manner
as may be prescribed.
Page69
70
of
opportunity
in
elementary
education
to
Page70
71
of
Sikri,
CJ.
in
To quote the
Kesavananda
Bharati
72
obligation
to
provide
free
and
compulsory
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73
of
the
minority
community
which
has
74
47. In the result, we hold that the Constitution (Ninetythird Amendment) Act, 2005 inserting clause (5) of Article
15 of the Constitution and the Constitution (Eighty-Sixth
Amendment) Act, 2002 inserting Article 21A of the
Constitution do not alter the basic structure or framework
of the Constitution and are constitutionally valid. We also
hold that the 2009 Act is not ultra vires Article 19(1)(g) of
the Constitution. We, however, hold that the 2009 Act
insofar as it applies to minority schools, aided or unaided,
covered under clause (1) of Article 30 of the Constitution
is ultra vires the Constitution.
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75
........J.
(A. K. Patnaik)
........J.
(Sudhansu Jyoti Mukhopadhaya)
........J.
(Dipak Misra)
......
..J.
(Fakkir Mohamed Ibrahim Kalifulla)
New Delhi,
May 06, 2014.
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