The right to education act
IN furtherance of its constitutional obligation under Article 21-A, the Indian Parliament enacted the Right of Children to Free and Compulsory Education Act, 2009,1 with a host of provisions to regulate and even restrict the running of schools. The essential schema of this act, as articulated in Section 12, mandates government schools to provide for free and compulsory elementary education and directs private unaided schools to do the same in respect of children belonging to the weaker sections and disadvantaged groups, subject to a maximum of twenty five per cent of their student intake. In the case of the latter, the act guarantees them reimbursement, in respect of the 25 per cent of students admitted through the ‘free’ quota, of the same per-child-expenditure as would be incurred by a government school.
‘Elementary education’ is defined in Section 2(f) as education from the first class to the eighth class, the expression ‘child belonging to disadvantaged group’ is defined in Section 2(d) as a child belonging to the Scheduled Caste, Scheduled Tribe, or any other socially and educationally backward class or similar group that is disadvantaged owing to gender or social, cultural, economic, geographic, linguistic, or similar factors, and the expression ‘child belonging to weaker section’ is defined in Section 2(e) as a child belonging to such parent or guardian whose annual income is lower than the minimum limit specified by the appropriate government.
This scheme and various other provisions that make clear the state’s intention to micro-manage the running of schools of all hue, instigated heavy constitutional attack on the RTE Act. The Supreme Court, in response, has come out with its verdict upholding this enactment on 12.04.2012, in Society for Unaided Private Schools of Rajasthan v. Union of India.2 The response is rendered even more interesting due to the strong notes of dissent struck by Justice Radhakrishnan.
There are three different themes common to any state regulation on educational institutions, regardless of the nature of education imparted. First, to what extent can the state insist upon ‘reservations’ in the case of educational institutions run entirely on private funds? The response to this is rooted in understanding the proper character of education vis-a-vis Article 19(1)(g) of the Constitution, such as whether it is a business, occupation, trade or pure charitable activity. If the state can indeed thrust the obligation to reserve a certain percentage of seats upon private unaided educational institutions, the second theme arises. Is there any distinction between ‘minority’ institutions and others in so far as extending the power of the state to provide for reservations is concerned? This, in turn, depends on the preferred reading of Article 30 and assessing whether this fundamental right goes beyond the general freedom to carry on business conferred under Article 19(1)(g).
The third theme is the nature and content of regulations, apart from reservations, that the state can provide for in both minority and non-minority educational institutions. Apart from these, the RTE Act, due to its specific regulatory domain of primary education and the presence of Article 21-A, raises a fourth theme, being whether non-state actors can be saddled with a responsibility primarily cast upon the government under Article 21-A. The court, in the RTE case, has addressed these issues but in an unsatisfactory manner. Since the fourth theme, that of horizontal application of rights, has seldom come up prior to this case for judicial scrutiny, this article will focus on this theme. In essence, this article argues that both the dissenting judgment and the majority verdict take extreme positions based on absolute prioritization of one set of fundamental rights over the other, thus resulting in ambiguous articulation of the proper standard of judicial review in situations involving the horizontal application of fundamental rights.
In general, fundamental rights are only enforceable against the state. Indeed, Article 13 prohibits the ‘state’ from making any law that takes away or abridges the fundamental rights conferred by Part III of the Constitution. The constitutional history behind the introduction of fundamental rights also makes it clear that these rights were meant to protect the citizen against the state. However, our Constitution makers were aware of the fact that certain vital rights could be infringed upon by private actors too, and this explains the different language employed in provisions such as Article 17 (abolition of untouchability), Article 23 (prohibition of traffic in human beings and forced labour) and Article 24 (prohibition of employment of children in factories).
For a good thirty years this division between a few fundamental rights, enforceable against private citizens, and the many that were enforceable only against the state, worked well. It is with the unfettered expansion of Article 21 through the doctrine of ‘unenumerated’ rights that problems crept in with this otherwise simple division. If Article 21 did cover within its now wide sweep, the right to a clean environment, shelter, medical care and various other such judicially crafted rights, would these rights be enforceable at all without active cooperation by non-state actors? A classic instance of this difficulty caused by the unconstrained enlargement of the rights under Article 21 is the decision in Vishaka v. State of Rajasthan.3 Here, the court took serious exception to an incident involving the rape of a social worker employed by the state of Rajasthan, and went to the extent of framing guidelines for prevention of sexual harassment in any workplace.
The court justified this exercise of judicial power by harping on violation of fundamental rights under Articles 14, 15, 21 and 19(1)(g). However, the court failed to appreciate that the extension of these guidelines to private entities required a separate conceptual enquiry. While dispensing with conceptual analysis, the court showed concern only towards how best sexual harassment could be eradicated from the workplace. Keeping in mind the fact that many organizations are owned by private entities post liberalization, the sweeping application of fundamental rights to non-state actors perhaps brought about a desirable outcome on the facts of this case.
This does not unfortunately translate into doctrinally sound constitutional jurisprudence as private actors, as opposed to the state, have their own fundamental freedoms. The right to one man’s privacy could well amount to an unreasonable restriction on the other’s right to free speech, when horizontally applied. Similarly, the right of one person to non-discrimination could impact on a private corporation’s right to carry on business. In short, the nature of the enquiry has to be necessarily different when imposing a duty on non-state actors, who themselves enjoy fundamental rights, than on state actors who are mandated to respect fundamental rights regardless of the difficulty in complying with their ‘duty’.
It is also important to appreciate that the word ‘right’ allows for different contextual connotations. It may, on some occasions, give the right holder an entitlement to demand something positive from the world at large or specific duty bearing individuals. In certain other situations, the right holder is only immunized to the extent of non-interference with his right by others. The idea of fundamental rights was largely a guarantee of the latter, and not the former. The notion of positive action was in fact incorporated, though not as an entitlement, in Part IV of the Constitution that deals with the Directive Principles of State Policy. However, the judiciary, through creative expansion of Article 21, diluted the traditional ‘negative rights’ study of Articles 14, 19 and 21 by reading in some of the directive principles as well as international treaty obligations within the purview of Article 21.
The state could no longer remain a silent non-interfering spectator, and onus was cast upon it to dedicate its machinery to the effective fruition of these ‘socio-economic’ rights. This assumes particular importance in the context of primary education, as the court in Unnikrishnan v. State of Andhra Pradesh4 relied on Article 45, a directive principle, to hold that the state had a duty, under Article 21, to provide for free and compulsory education of its citizens till the age of fourteen.
The difficulty with this approach towards interpreting Article 21 is twofold: one, the state has no real resources to ever guarantee the discharge of its duty and in most cases, the right remains merely one on paper, and two, the state can justify resort to restrictions on private actors in the guise of giving wings to the positive right in question. This is precisely the case with the RTE Act, as the positive right judicially created in Unnikrishnan and Mohini Jain v. State of Karnataka,5 and constitutionally enshrined through Article 21-A, has been misconstrued to make private entities liable for the fulfilment of this right with little or no heed being paid to the fundamental rights enjoyed by them. This is evident from the best foot put forward by the Union in support of the act, being the submission that Article 21-A, which gives effect to a socio-economic right, would trump other fundamental freedoms and ‘negative’ rights such as the right to carry on business in Article 19(1)(g). The correct response to this submission required an understanding of the history behind Article 21-A as well as the possibility of horizontal application of rights in our constitutional jurisprudence, both of which are strikingly absent in the majority verdict.
In this regard, the dissent by Justice Radhakrishnan traces the events leading to the introduction of Article 21-A, and attempts to draw the majority’s attention to the potential hazards of imposing the state’s duty on private actors. The painstaking review of the progress of this constitutional amendment from the day the Constitution (Eighty-third Amendment) Bill, 1997 was born within the confines of the Department of Education in the Ministry of Human Resource Development, to when it finally got included in Part III, reveals that the initial draft specifically prohibited the state from making ‘any law, for free and compulsory education…in relation to the educational institutions not maintained by the State or not receiving aid out of State funds.’ Subsequently, political compulsion prevailed, and it was considered fit to leave it to the judiciary to decide on the scope and width of Article 21-A.
The dissent draws a linkage between the enactment of the RTE Act in 2009 and parallel developments in the field of higher education such as the decisions of the Supreme Court in T.M.A. Pai Foundation v. State of Karnataka,6 Islamic Academy of Education v. State of Karnataka,7 and P.A. Inamdar v. State of Maharashtra.8 Analyzing these decisions, the dissent concludes that Parliament was fully aware, at the time of enacting the RTE Act, that private unaided educational institutions of both minority and non-minority status could not be burdened with reservations. This judicial view, according to Justice Radhakrishnan, ought to permeate the debate surrounding Section 12 of the RTE Act, as there was no strong reason to deviate from the same.
More importantly, the dissent examines several decisions of the Indian Supreme Court where Article 21 was liberally interpreted to include positive socio-economic rights, as well as pronouncements by the South African Constitutional Court, to conclude that even in jurisdictions where socio-economic rights have been exalted to the status of constitutional rights, those rights are available only against the state and not against private non-state actors such as private schools or hospitals unless they receive some aid, grant or other concessions from the state. The dissent also concludes that the beneficiaries of a socio-economic right cannot make inroads into the rights guaranteed to other citizens.
This part of the dissent forms the crux of the actual debate surrounding Articles 21-A and 19(1)(g) and the interplay between these rights, and is unfortunately ignored in its entirety by the majority. This is unfortunate as the majority could have trodden the middle path, applied the doctrine of proportionality, and yet probably arrived at the same outcome that it eventually did. This would have been at variance with, and better than, the extreme position in the dissenting opinion that a constitutional amendment on the lines of Article 15(4) and 15(5) ought to have been introduced to specifically provide for reservations in private unaided educational institutions. This would also have been more a conceptually sound precedent than the other extremity that the majority endorsed, being a complete negation of Article 19(1)(g) by the mere presence of Article 21-A and its laudable objective.
Before examining the limited reasoning that the majority verdict discloses, a few words on judicial review are in order. Judicial review signifies both the power of, and the standard for, courts to examine the constitutional validity of state action. It is, therefore, imperative while exercising this power that the correct standard or approach is adhered to, so that future courts, when confronted with similar conflicts, can follow the right precedent. A judgment which arrives at the seemingly correct outcome through incorrect means is still a wrong decision, both because it serves as an undesirable precedent and because none can predict with clockwork accuracy the actual outcome had the correct test been followed. The majority verdict, when viewed from this angle, stands influenced entirely by a few factors, some of which are no doubt relevant but hardly conclusive, and thus falls into the above well of incorrect judicial reasoning.
There are two glaring errors in the majority reasoning. First, the assertion that the impugned scheme of the RTE Act is justified since the running of an educational institution is a charitable activity in India, heavily misconstrues the TMA Pai and Inamdar decisions. While it is no doubt true that the 11 judge bench in TMA Pai did consider education to be a recognized head of charity, the seven judge bench in Inamdar had categorically held that even this consideration would not permit the state to impose its reservation policy on private unaided educational institutions. It was, therefore, imperative that the majority explain why private unaided schools stand on a footing separate from private unaided colleges. But for the incantation of Article 21-A, the verdict is rather silent on this issue.
This brings us to the second major flaw, being that of absolute prioritization of Article 21-A over 19(1)(g) merely because of the laudable objective sought to be achieved through the introduction of the former provision. The majority holds that the RTE Act is a reasonable restriction under Article 19(6) since it has been enacted to give effect to Article 21-A, but this begs the question as to whether the scheme contained in this act is still a reasonable one. This, in turn, is an enquiry that goes way beyond the mere objective of the legislation to a balancing of competing interests. This is more so in situations where a fundamental right is sought to be enforced against non-state actors who, as rightly pointed out by Justice Radhakrishnan, are themselves protected by fundamental rights. The majority conducts no such balancing exercise, thus leaving open to our imagination the correct standard of judicial review in cases involving horizontal application of fundamental rights.
Right from the decision in State of Madras v. VG Row,9 the Supreme Court has held that various factors such as the nature of the right alleged to have been infringed, the underlying purpose of the restriction, the extent and urgency of the evil sought to be remedied, the disproportion of the restriction, and the prevailing conditions at the time of imposition of the restriction, would all be relevant in determining the reasonableness of the restriction placed on a fundamental freedom contained in Article 19. Though the restriction in this case related to Article 19(2), the same principle was held applicable to Article 19(6) in Collector of Customs, Madras v. Nathella Sampathu Chetty.10 This has in fact prompted the court, in Om Kumar v. Union of India,11 to remark that the principle of proportionality has been applied vigorously to state action in India ever since 1950. The doctrine of proportionality essentially involves a balancing of competing interests to ensure a proportionality of ends, as well as securing the proportionality of means by permitting only the least restrictive choice of measures by the legislature or the administrator for achieving the object of the legislation or the purpose of the administrative order.12
Essentially, there are three important criteria used while applying the doctrine of proportionality. The necessity criterion prevents the state from taking any action that goes beyond what is necessary to achieve its aims, i.e. the method least burdensome to the affected persons.13 The suitability criterion insists that the means chosen be suitable for achieving those aims. The balancing criterion guarantees a proportionate balance between the burden imposed on affected persons and the purpose sought to be achieved.14 In determining the reasonableness of any restriction using proportionality, the legislative objective should be sufficiently important to justify such a restriction, the measures designed to meet the legislative objective should be rationally connected to it, and the means used to impair the right or freedom should be no more than is necessary to accomplish the objective.15 These principles go to show that the nature of the competing interests play a significant role in ascertaining the limit on constitutionally permissible restrictions.
The above framework of judicial review fits perfectly with the kind of issues that crop up when fundamental rights are sought to be extended to non-state actors. In the specific case of the RTE Act, factors such as the laudable objective behind Article 21-A, the exclusion of the exception favouring private unaided institutions in the final version of the amendment, the virtual impossibility of fulfilling this objective if non-state actors including minority educational institutions were to be excluded from its purview, the relatively reduced 25 percentage of reservations and the reimbursement of basic cost to the private unaided institutions would have weighed in favour of the act. On the other hand, factors such as those highlighted by Justice Radhakrishnan in the dissent would, instead of rendering the act unconstitutional under any circumstance whatsoever, end up on the proportionality scale as factors weighing the balance against the state. The court would also have to keep in mind the economic viability of running private schools post the introduction of the impugned scheme.
Needless to say, none of these factors would have arisen in a case of vertical application of fundamental rights, where the state is obliged to unconditionally respect the citizen’s right. The RTE case reveals a preference for one-dimensional analysis both by the majority and the minority, an approach wholly inadequate while reviewing the validity of legislation that casts duties of the state on non-state actors. For this reason alone, the constitutional validity of the RTE Act ought to be reconsidered by a larger Constitution Bench by expanding the scope of enquiry to include the factors highlighted above and balancing them.
The inadequacy of the court’s approach shows up best when it addresses the issue of application of the RTE Act to minority unaided institutions. This issue mattered not in the dissent since Justice Radhakrishnan had concluded that the act would be constitutionally invalid regardless of the minority/non-minority character of these educational institutions. However, the majority’s treatment of this issue, and its conclusion that the act would not apply to minority unaided institutions, offers the most powerful argument yet to reconsider this decision. While arriving at this conclusion, the majority has yet again applied the ‘absolute prioritization of rights’ analysis, wherein Article 30(1) supersedes the obligation cast on the state and non-minority private unaided institutions under Article 21-A.
The basis for this prioritization is again unclear and more likely than not, erroneous, especially because the precedents in TMA Pai and Inamdar strongly indicate that both Articles 19(1)(g) and 30(1) provide the same level of protection to unaided private educational institutions with the latter being exclusively applicable to the schools run by the minorities. If the protection under Article 19(1)(g) could be superseded by the RTE Act due to the laudable objective furthered by Article 21-A, as the majority held it did, consistency demanded a similar view to be taken in respect of Article 30(1) as well.
An independent enquiry is, however, required to examine whether the above outcome could have been sustained, had the correct standard of review – the proportionality standard as put forth by this article – been applied. Coming back to the exercise of weighing and balancing, two additional considerations in law, and one of fact, would most certainly figure in this exercise. The considerations in law are Article 30(1), no doubt, and Article 15(5). Article 30(1) is a special provision that vests with religious and linguistic minorities, the important right to establish and administer educational institutions of their own choice. Whether this provision makes any difference to the balance is doubtful as Article 19(1)(g), in the opinion of the larger benches in TMA Pai and Inamdar, guarantee as much of protection as Article 30(1) to the non-minorities who cannot avail of the latter provision. More importantly, larger benches of the Supreme Court have held that Article 30(1) is not an absolute right and can be curbed in national interest.
The majority, which waxed eloquent about Article 21-A and its nationally significant objective, cannot possibly take a different view of this objective only when it comes to minority unaided institutions. Therefore, in the scales of proportionality review, Article 30(1) makes no difference, in the context of minority institutions, to the balance as exists in the case of non-minority institutions. At best, Article 30(1) would permit the minority institution to prefer students from their own community while admitting the 25 per cent ‘free quota’, as long as such preference was exercised in a fair and transparent manner. This was even conceded by the Union of India.
Article 15(5), on the other hand, does play an instrumental reason in tilting the balance, and for the reason that this provision, the constitutional validity of which was not in question before the court, specifically contains an exemption favouring minority educational institutions. The constitutional history of this provision, introduced in response to the decision of the court in Inamdar, is also a pointer to the fact that the state, while seeking to override the rights under Article 19(1)(g) in the field of education, never desired to do so in respect of the rights under Article 30(1). While the Union never sought to defend the RTE Act as a proposed measure under Article 15(5), and understandably so since the scope of this provision is much narrower than what the RTE Act attempted to cover, this is certainly a factor weighing in support of not extending the RTE Act to minority educational institutions. This factor could even be conclusive if not for the next factor, one of fact. This factual consideration puts back the balance in favour of Article 21-A, and the Union’s case for applicability of the RTE Act to minority educational institutions.
This all important factual consideration is the substantial percentage of the total number of unaided private schools that qualify for ‘minority’ status in various states. While no comprehensive nationwide study was presented in this regard for the consideration of the court, some of the facts speak louder than ever. In Karnataka, the rough estimates are that out of 10,252 unaided schools, 6,600 would qualify as minority institutions. As per the 2007-08 statistics relied on by the Supreme Court, of the 12,50,755 schools imparting elementary education in India, 80.2 per cent were government run, 5.8 per cent were private aided and 13.1 per cent were private unaided. Due to the extreme ambiguity in defining the term ‘minority’, it has been difficult to ascertain the percentage of private unaided schools that would qualify for exemption. It could well be the case that if minority unaided institutions were exempt from the purview of the RTE Act, this legislation would not come anywhere close to achieving its stated objective. Apart from this, the court also ought to have factored in the rent-seeking behaviour this exemption would trigger, as institutions of all kind and character vie for minority status.
The above factors have been highlighted not to contend that the ultimate outcome in the RTE case is erroneous, but to show how an incorrect standard of review can result in various governing considerations being ignored by the adjudicatory body. This, in itself, is a strong reason to reconsider the debate on the constitutional validity of the RTE Act. The Supreme Court, by following an incorrect path, has muddled the manner in which enquiry into the constitutional validity of a legislation that advocates horizontal application of fundamental rights ought to be conducted. This error is accentuated by the apparently illogical and discriminatory conclusion arrived at by the court, that the RTE Act would not apply to minority unaided institutions. The application of the proportionality standard of review could have addressed most of this criticism by inspiring confidence that justice has not only been done, but evidently so.
1. Hereinafter the RTE Act.
2. (2012) 6 SCC 1. Hereinafter referred to as the RTE case.
3. AIR 1997 SC 3011.
4. (1993) 1 SCC 645. Hereinafter referred to as Unnikrishnan.
5. (1992) 3 SCC 666.
6. (2002) 8 SCC 481. Hereinafter referred to as TMA Pai.
7. (2003) 6 SCC 697.
8. (2005) 6 SCC 537. Hereinafter referred to as Inamdar.
9. AIR 1952 SC 196. Hereinafter referred to as VG Row.
10. AIR 1962 SC 316.
11. 2000 (7) SCALE 524.
12. Teri Oat Estates Pvt. Ltd. v. Union Territory, Chandigarh, (2004) 2 SCC 130.
13. In the opinion of the learned academic, P.P. Craig, this criterion is of utmost importance in cases where the disputed measure conflicts with a fundamental right. See P.P. Craig, Administrative Law. Sweet and Maxwell, London, 1999, p. 591.
14. Garreth Wong, ‘Towards the Nutcracker Principle: Reconsidering the Objections to Proportionality’, Public Law, 2000, p. 92.
15. R. (on the Application of Daly) v. Secretary of State for the Home Department, (2001) 2 W.L.R. 1622 (HL); de Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing, (1999) 1 A.C. 69 (PC).