CONSTITUTION

AL LAW
ARTICLE 21-A : RIGHT TO
EDUCATION

SUBMITTED TO : MS. NANDITA

BATRA
SUBMITTED BY : SHELLY ARORA
SECTIO
ND

B.COM. LL.B
(HONS)

213/13

YEAR - 2015

Acknowledgement
I am using this opportunity to express my gratitude to everyone who
supported me throughout the course of this CONSTITUTIONAL LAW
project. I am thankful for the aspiring guidance, invaluably constructive
criticism and friend advice during the project work. I am sincerely
grateful to them for sharing their truthful and illuminating views on a
number of issues related to the project. I will strive to use gained skills
and knowledge in the best possible way, and I will continue to work on
their improvement.
I express my warm thanks to my subject teacher Ms. NANDITA for
giving me opportunity to work on this topic and without her support
and guidance ,I would have not completed this project.
Furthermore I would also like to acknowledge with much appreciation
the crucial role of the Library staff of the department, who gave the
permission to use all required equipment, books and necessary
material required to complete the task, and thanks to all the people
who provided me with the facilities being required and conductive
conditions for my Constitutional law project. . I choose this moment to
acknowledge their contribution gratefully.
A special thanks goes to my class mate, who help me to assemble the
parts and gave suggestion about the task .
I also acknowledge with a deep sense of reverence, my gratitude
towards my parents and members of my family, who has always a
supported me morally as well as economically.
Any omission in this brief acknowledgement does not mean lack of
gratitude.

Thanking you

Shelly Arora

SR.NO.

CONTENTS

PAGE NO.

TEACHER
REMARKS

INDEX

RIGHT TO EDUCATION
Article 21A provides : 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 21A added by the constitution (86th amendment) Act,2002 makes
education from 6 to 14 years old, a fundamental right, within the meaning of
Part III of the Constitution.
This article may be read with new substituted Article 45 and new clause (k)
inserted in Article 51 A by the constitution (86th amendment) Act,2002.
While the substituted Article 45 obligates the state to Endeavour to provide
childhood care and education for all children until they complete the age of
six years, Clause (k) inserted in Article 51 A imposes a fundamental duty on
parent/guardian to provide opportunities for education to his child or, as
the case may be, ward, between the age of six and fourteen years.
With reference to Article 51A(k) which explained the emphasis would be to
encourage and prompt parents to bring children to schools, rather than to
punish the economically weak parents. It was explained that the
Government would Endeavour to target children of economically weak
parents guardians through Sarva Shiksha Abhiyan and a series of measures
and facilities.

The right to education recognized as a implicit fundamental right in

Mohini Jain1 and Unni Krishnan2

CASE :
Emphasize on the right to education in Brown v. Board of Education3

1 Mohini Jain v. State of Karnataka, AIR 1992 SC 1858 [Hereinafter Mohini Jain]
2 Unni Krishnan J.P. v. State of Andhra Pradesh, AIR 1993 SC 2178 [Hereinafter Unni
Krishnan]

Today education is the most important function of the State and local
Governments.. it is required in the performance of our most basic
responsibility, even services in the armed forces. It is very foundation of
good citizenship. Today, it is principal instrument in awakening the child to
cultural values, in preparing him for later professional training, and in helping
him to adjust normally to his environment. In these days, it is doubtful any
child may reasonably be expected to succeed in life if he is denied the
opportunity of an education.

Right of Children to Free and

Compulsory Education Act,
2009
To bring the Constitution (86th Constitution Amendment) Act,2002 into force,
the Right of Children to Free and Compulsory Education Act, 2009 has been
enacted to translate the constitutional intent into action. The Act, 2009
provides for childrens right to free and compulsory admission, attendance
and completion of elementary education. Section 3(1) of the Act, 2009
provided with free education in the nearest school till that child completes
his/her elementary education.

Though the Act, 2009 is a central legislation, its effective implementation lies
in the hands of the State Government of India announced that 25% seats in
private schools for children from poor families be reserved as also prohibited
donation or capitation fee.
The Act 2009 lays down that the curriculum should provide for learning
through activities, exploration and discovery. It requires that the teachinglearning process must become stress free and the curriculum reform be
initiated to make the learning system child friendly. Besides the Act, 2009
contains provisions prohibiting corporal punishment, detention and
expulsion.
As regards the responsibility, the Act, 2009 mandated that the education
Department of the Central and State Governments would provide schools,
infrastructure, trained teachers, curriculum and teaching - learning material
as also mid-day meal facilities.

CASE 1 :
3 347 US 483 (1954), quoted in Election Commission of India v. St. Marys School,
AIR 2008 SC 655.

SHIKSHAN PRASARAK MANDAL, PUNE v. STATE of MAHARASHTRA 4

Stating that imparting education was a constitutional obligation of the state
and a fundamental right of the students under Article 21-A, a full bench of
Bombay High Court in Shikshan Prasarak Mandal , Pune v. State of
Maharashtra, ruled that the performance of the constitutional and
fundamental duty by the State would have to be placed at a much higher
pedestal than the policy of the State which had statutory backing.

CASE 2 :
ZEESHAN V. DISTRICT EDUCATION OFFICER,KANNUR5 The term
child for the purpose of Article 21-A is held to be a child who is citizen of
Indian. Te Kerala High Court in this case upheld the denial of admission to
Standard V in a school of a child who was a citizen of Pakistan under Section
22(ii) of the Kerala Education Act, 1959.

CASE 3:
Associated Management of (Government Recognized Unaided
English Medium) Primary & Secondary Schools in Karnataka v.
State of Karnataka.6
In Associated Management of (Government Recognized Unaided English
Medium) Primary & Secondary Schools in Karnataka v. State of Karnataka, a
full bench of Karnataka High Court held by the virtue of Article 21-A, the
medium of instructions was to be entirely the choice of the parents and the
student and that no one could claim to know better than the parents about
the child, to decide as to what the child required in the sphere of education
to shape its career and destiny.
Thus Article 21-A is read with Article 19(1)(a), all children shall have the
freedom to have primary education in a language of their choice.

CASE 4:
4 AIR 2010 Bom. 39.
5 AIR 2008 Ker. 226.
6 AIR 2008 (NOC) 2790 (Kar.).

T.M.A. Pai v State of Karnataka (2002)7 and P.A. Inamdar v

State of Maharashtra (2005)8
T.M.A. Pai v State of Karnataka (2002) and P.A. Inamdar v State of
Maharashtra (2005) which were decided in the context of tertiary education
and not primary education. The Constitution does not recognize a
fundamental right to tertiary education, but primary education is a
fundamental right. Moreover, the difference in legal obligations of the state
with regard to the two levels of education is well recognized worldwide and
also in international instruments that India is bound by.
Third, even assuming that the judgments in TMA Pai and Inamdar are
applicable to schools imparting primary education, both judgments recognize
that the rights of minorities under Article 30 are not unbridled. It was held,
for instance, in TMA Pai that admitting a few members of a non-minority
group into a minority institution does not take away the minority character of
such an institution and that Articles 29 and 30 clearly contemplate such an
inclusion. The Courts judgment in Pramati, by closing the door to nonminority students of economically weaker sections, actually goes contrary to
the principles laid down in the earlier Bench decisions in TMA Pai and
Inamdar, despite the Court extracting passages from these judgments in
Pramati.

The Supreme Court has read these judgments to mean that regulating
minority schools including admission of non-minority students (or even
minority students) from economically weaker sections of society, regulation
of fees and admission procedures would be unconstitutional. This is
perplexing at best, and absurd at worst.

CASE 5 :
Action Committee Unaided Recognized Private schools v.
Hon'ble Lt. Governor & Ors W.P. (C) 177/2014 & The Forum of

7 AIR (2002) 8 SCC 481

8 AIR (2005) 6 SCC 537

Minority Schools v. Lt. Governor of Delhi & Anr W.P. (C)

208/2014 9
Parental choice wins
In Forum for promotion of quality education for all v Lt. Gov. Of Delhi and
Ors. Writ Petition no. 202 of 2014 (with WP 177/2014) decided on
28.11.2014, the learned Single Judge of the High Court of Delhi set aside the
impugned office orders being violative of the fundamental right of the school
management to maximum autonomy in day-to-day administration including
the right to admit students as well as the fundamental right of children
through their parents to choose a school. By the said office orders, the
Lieutenant Governor had directed that 75% nursery seats, i.e. after excluding
25% seats reserved for EWSD sections shall be admitted on the following
basis:

70 marks for neighborhood

20 marks for siblings
5 marks for parent/alumni
And 5 marks for interstate transfers

ISSUE
Whether private unaided schools have the autonomy to admit students and
the children through their parents have a right to choose a school in which
they wish to study or whether the executive by way of an office order can
impose a formula on the basis of which nursery admissions have to be
carried out by such schools.

CONTENTIONS
The counsel for Forum for promotion of quality education for all contended
that freedom of schools/ tutor and child/ parent to choose one another
constitutes autonomy of the school under Article 19(1)(g) and which needs to
be preserved and protected under Article 21 of the constitution as well as
Article 19(1)(a) and 19(1)(g).
9 AIR 2014 Delhi HC

10

The impugned office orders are against public interest and contrary to
principles of autonomy as enunciated in TMA Pai Foundation and Others v.
State Of Karnataka and Others (2002) 8 SCC 481, as well as the Directive
Principles Enshrined in Article 38 to 41, 45 and 46 and Fundamental Duties in
Article 51A(9)(e), (j), (k) of the Constitution. He contended that the direct and
inevitable result of the impugned neighborhood rule was that now only the
rich in the affluent localities would have exclusive access to good schools
situated in the localities, whereas poor people staying in distant areas of
Delhi stood excluded from the same. He also contended that the impugned
office orders are also contrary to provisions of the Delhi School Education Act
of 173 Delhi School Regulation Rules 1973 as well as RTE Act 2009. The
impugned office orders over and above 25% reservation stipulated in RTE Act
2009 also provided for 5% staff quota and 5% girls quota as an
additional/extra reservation contrary to Section 12 and 13 of RTE Act 2009.
Senior Counsel appearing for Action Committee Unaided Recognized Private
Schools mainly contended that the impugned office orders are not only in
violation of Rule 145 but also without jurisdiction as Section 3(1) and 16 of
the DSE Act 1973 read with Rule 43 of the DSE Rules 1973 did not empower
the administrator to overwrite Rule 145 which conferred power to regulate
admissions upon the head of the recognized unaided school. Petitioners also
stated that the neighborhood concept had been considered and rejected by
the Expert Ganguly Committee. Neither any pleading were filed nor any
arguments were advanced by the Social Jurist, though it had been impeded
as a respondent on the first date of the hearing itself.

DECISION
The decision was based on three main arguments:
(i)
(ii)
(iii)

the admission guidelines violate autonomy of private educational

institutions;
office order is not a law under Article 19(6);
neighborhood criteria is contrary to parental choice.

The Court held :

Private unaided school managements have a fundamental Right

under Article 19 (1)(g) to establish, run and administer their
schools, including the right to admit students. Autonomy has also
been recognized and conferred upon schools by Section 16(3) of the
DSE Act 1973 and Rule 145 of DSE Rules 1973 which empowers the

11

head of every unaided school to regulate admissions in the school

or any class thereof. Right to establish an educational institution can
be regulated, but such regulatory measure must in general be to
ensure the maintenance of proper academic standards,
atmosphere, infrastructure and prevention of maladministration by
those in charge of the management. Right to impose conditions
while granting recognition/affiliation cannot be used to destroy
institutional autonomy. TMA Pai Foundation judgment is applicable
to nursery admissions in private unaided non-minority schools.
Article 21(a) and Article 15(5) of the constitution have no
application to the present case.
Restriction under Article 19(6) can only be by way of a law and not
by way of an office order without any authority of law.
There was no material to show that private unaided schools were
indulging in any malpractice or misusing their right to admit
students in pursuance to 2007 Notification.
Except proviso to Section 12(1)(c), none of the other provisions of
RTE Act 2009 apply to the nursery admission. Impugned office
orders are contrary to guidelines issued by central government
under section 35(1) of the RTE Act 2009.
Section 3 of the DSE Act 1973 and Rule 43 of DSE Rules 1973
cannot be used to contradict or overrule a specific provision. Further
Rule 15 of DSE Rules, 1973 cannot be interpreted to mean that the
school has to be confined to the locality where it is situated.
The point system introduced by the impugned office orders is
neither procedurally proper not rational. No empirical study or
mapping exercise was carried out with regard to availability of good
quality schools in the neighborhood of each colony. Even in the
United States of America, the concept of neighborhood school or
distance does not apply to private unaided school. It applies only to
public schools.
Children through their parents have a fundamental right to choose
school in which they wish to study under Article 19(1)a of the
Constitution. Parental School Choice in its broadest sense means
giving parents the ability to send their children to the school of their
choice. The school of choice often emphasize a particular subject or
have a special philosophy of education. Also if parents are given
freedom to choose the school that they prefer, good schools will
attract more students and will expand whereas the not so good
schools will lose the students and eventually close thereby schools

12

will maintain their standards and will endeavor to raise their

educational attainments in order to attract more students. Primary
cause of nursery admission chaos is lack of adequate number good
quality public schools. School choice gives families freedom to
choose any school that meets their needs regardless of their
location. This court is of the opinion that by increasing parental
choice and by granting schools the autonomy to schools to admit
students the autonomy of private schools could be ensured.
Till the quality of all public schools is improved, the disparity
between demand and supply will remain. This court was of the view
that no office order or policy or notification or f formula can resolve
this disparity. Social Jurist has filed an appeal before the Division
Bench in the High Court of Delhi but this judgment has not been
stayed.

13

The Proposed Approach to Article

21Ai. The Beginnings of the Judicial Interpretation of
Article 21A
Earlier any attempt to define the contours of Article 21A necessarily
involves entering unchartered waters. In spite of the fact that Article
21A has only recently entered into force, there is already a limited
amount of judicial dicta on its scope and meaning. The most prominent
example is the opinion of Bhandari J. in Ashoka Kumar Thakur,
arguably the most significant affirmative action case to be decided by
the Indian Supreme Court in the last decade or more.

CASE I
On its face, Ashoka Kumar Thakur10 would appear to have little to
do with primary school education. The constitutional question centered
on whether the reservation of places in educational institutions for
members of the Other Backward Classes (i.e. socially and
educationally backward classes of citizens of India) was violative of the
constitutional guarantee of equality.
In his separate opinion in Ashoka Kumar Thakur, Bhandari J. was
sharply critical of the Government for prioritizing higher education
(and, more particularly, affirmative action in higher education) over
primary education, in what he considered to constitute an inversion of
constitutional priorities. It is in this context that his opinion contains
dicta on Article 21A. He envisaged a two-fold content for Article 21A;
first, that all children in the requisite age group must compulsorily
attend school, and second, that the education provided to them must
constitute quality education.
This is a preliminary indicator that, when the question eventually
arises in the context of concrete claims under Article 21A, the Supreme
10 Ashoka Kumar Thakur v. Union of India & Others, (2008) 6 SCC 1

14

Court might be inclined to hold that a minimum core guarantee of

quality is essential for satisfaction of the constitutional mandate.

CASE II
In Avinash Mehrotra v. Union of India and Others 11
Bhandari J. observed that the broad and generous interpretation
afforded to other fundamental rights by the Indian Supreme Court
offered significant guidance to how Article 21A ought to be
understood.
Educating a child required more than a teacher and a blackboard, or
a classroom and a book. While acknowledging that the case at hand
did not require (or perhaps even permit) the Court to detail the full
contours of Article 21A, he opined that it was at least warranted to
conclude that where clearly unsafe structures were employed to house
schools, this could not be construed as constituting compliance with
the mandate of Article 21A. Another possible constitutional challenge
in the context of Article 21A could be to laws or policies that actively
impede the achievement of the constitutional goal of universal primary
education.
CASE III
ELECTION COMMISION OF India V. ST. MARYS SCHOOL12
An excellent example of the approach that might be adopted by the
Supreme Court is provided by Election Commission of India v. St.
Marys School .
Here, the Supreme Court was considering the policy of requisitioning
school teachers to conduct elections during normal school hours. The
Court itself framed the issue in terms of how to resolve the conflict
between two conflicting constitutional priorities. It recognized the
paramount importance of free and fair elections in the Indian context,
and the constitutional role of the Election Commission of India with
11 MANU/SC/0555/2009 [Hereinafter Avinash Mehrotra].
12 AIR 2008 SC 655.

15

respect thereto. Nevertheless, it held that the fundamental right to

primary education could not be subordinated to this other
constitutional priority.
It took note of the deplorable condition of primary education in
India. The operative portion of the Supreme Courts judgment
therefore provided that teaching staff should ordinarily be deployed for
election duties only on holidays and non-teaching days.
The Supreme Courts analysis substantially focused on Article 21 of the
Constitution which, at least textually, is framed as a negative
procedural due process right protecting life and personal liberty.
Evidently, the coming into force of Article 21A might only slant the
constitutional balance further in favor of the outcome the Court
reached in any case.

ii.

A critical analysis of the Strength of the Right

It cannot escape notice that the right in Article 21A is not premised on
the availability of resources, nor is it phrased in terms of a progressive
obligation on the part of the State. The beneficiaries of the right are
identified in clear-cut and precise terms, being children between the
ages of six and fourteen years.
The word shall presumptively connotes a mandatory obligation, and
there is nothing in the backdrop of the framing of the right which
would suggest otherwise. In fact, an alternative, non-mandatory
interpretation of the word shall would be oxymoronic in the context
of Part III of the Indian Constitution, although it is of course possible to
conceive of other formulations of the right that might curtail its scope
and reach even within the context of Part III.
The latter portion of Article 21A i.e. in such manner as the State
may, by law, determine strongly suggests that the means to be
adopted to fulfill the mandate of the fundamental right are to be within
the domain of the State

iii.

Validity of Article 21A of the Constitution

The substantial question of law which we are called upon to decide
is whether by inserting Article 21A by the Constitution (Eighty-Sixth
Amendment) Act, 2002, the Parliament has altered the basic
structure or framework of the Constitution. Before we refer to the
contentions of the learned counsel for the petitioners, we must
reiterate some facts.
Article 21A is titled Right to Education and it provides that the
State shall provide free and compulsory education to all children of

16

the age of six to fourteen years in such manner as the State may,
by law, determine. Accordingly, the 2009 Act was enacted by
Parliament to provide free and compulsory education to all children
of the age of six to fourteen years. The validity of the 2009 Act was
challenged and considered in Society for Unaided Private Schools of
Rajasthan v. Union of India & Anr. (supra) by a three-Judge Bench of
this Court.

CASE I
Society for Unaided Private Schools of Rajasthan v.
Union of India & Anr.13
Two learned Judges S.H. Kapadia C.J. and Swatanter Kumar J. held
that the 2009 Act is constitutionally valid and shall apply to the
following: 50
(i)
a school established, owned or controlled by the appropriate
Government or a local authority;
(ii)
an aided school including aided minority school(s) receiving
aid or grants to meet whole or part of its expenses from the
appropriate Government or the local authority;
(iii)
a school belonging to specified category; and (iv) an unaided
non-minority school not receiving any kind of aid or grants to
meet its expenses from the appropriate Government or the
local authority.
The two learned Judges, however, held that the 2009 Act, in
particular Sections 12(1)(c) and Section 18(3), infringe the
fundamental rights guaranteed to unaided minority schools under
Article 30(1) of the Constitution and therefore the 2009 Act shall not
apply to such unaided minority schools. Society for Unaided Private
Schools of Rajasthan v Union of India (Rajasthan Schools) in 2012
and has now been severely destabilized through the erroneously
reasoned judgment in
13 AIR (2012) 6 SCC 102

17

CASE II
Pramati Educational and Cultural Trust v Union of
India (Pramati).14
What is incredible about the Pramati judgment is that while the Court has
upheld Article 21A as valid, it has simultaneously weakened it by making it
subject to Article 30.
Removing from RTE
In Pramati, the Court has gone further than Rajasthan Schools and
completely removed all minority schools, whether aided or unaided, from the
purview of the RTE Act. While agreeing with the majority judgment in
Rajasthan Schools on the applicability of the law to private institutions, the
Court has, on a strained and entirely unreasonable reading of clause (1) of
Article 30, placed all minority schools in a regulation-free zone.
Article 30 (1) recognizes the fundamental right of all minorities to establish
and administer educational institutions of their choice. The implication of the
judgment in Pramati is that minority schools will continue to be permitted to
charge any amount of fees, prescribe any admission criteria, and
discriminate against any class of citizens without being answerable in any
court of law to the government or to aggrieved parents. This is because the
provisions of the Act which provide for these restraints will have no
applicability to minority schools.
Three problems are evident with the reasoning adopted in Pramati. First, it
has placed Article 30 on a pedestal, possibly elevating it to a status above
the fundamental freedoms, even Article 21. All fundamental rights are
limited by reasonable restrictions imposed by law on certain bases, but
Article 30 alone, on the Courts interpretation in Pramati, is above any
restriction in any manner. The Courts reasoning in this case has little basis in
the Constitution or even in the intent of the framers. Its idea of a minority
institution seems to be that somehow the mandatory inclusion of even a few
non-minority students would dilute the minority character of the institution.
What is incredible about the Pramati judgment is that while the
Court has upheld Article 21A as valid, it has simultaneously
weakened it by making it subject to Article 30
iv.

Remedies for the breach of Article 21A

14 AIR (2014) 8 SCC 1

18

Governmental inertia to be a prominent cause of the imperfect

realization of the constitutional goal of free and compulsory
education, it is clear that the question of remedies probably requires
greater attention than the contours of the underlying right itself.
I now turn to the types of remedies that the Supreme Court ought
to consider, along with the potential benefits and pitfalls these
might entail.
In Ashoka Kumar Thakur, Bhandari J. observed that it was essential
that the Government revise budget allocations for education, and
set a realistic target for fully achieving the right enshrined in Article
21A. While acknowledging that this might require the judiciary to
oversee government spending, he stressed that the power of the
purse was entrusted to Parliament, and that spending was
consequently one area where the judiciary must not overstep its
constitutional mandate.
Nonetheless, these strongly worded observations in the opinion of
Bhandari J. do represent an important starting point for our evolving
understanding of Article 21A. Perhaps the best elucidation of these
observations is that the Judiciary will not dictate to the Government
how much to spend or how to spend it, but will nevertheless hold it
accountable for providing primary education to all. This would be
enforced with strong remedies (much as Tushnet describes), with
periodic reporting requirements, the refusal to easily accept
withdrawal from past commitments, judicial censure and of course
the threat of contempt of court as a last resort. This obviously
points back to Godavarman, and I these that case is indeed a fair
model for the mode of enforcement that Article 21A demands.

19

Bibliography
BOOKS :
(A) Kumar Narender, Constitutional Law Of India. Panjab University,
Chandigarh : Jain Law Agency, (2002).
(B) Singh M.P. , The Constitution of India. Delhi : Delhi Law House,
(2009).
(C) Chowdhury Rishad, The Road Less Travelled: Article 21A and the
Fundamental Right to Primary Education in India.