Anjuman Ishaat-E-Taleem Trust v. The State of Maharashtra and Others

Anjuman Ishaat- E- Taleem Trust v. The State of Maharashtra and Others

Bench of five Judges of this Hon’ble Court in Pramati Educational and Cultural Trust (supra), insofar as it exempts minority schools— whether aided or unaided—falling under clause (1) of Article 30 of the Constitution from the applicability of the RTE Act, warrants reconsideration. In course of our analysis, we propose to consider whether Pramati Educational and Cultural Trust (supra) should be accepted as the last word in the matter of applicability of the RTE Act to minority institutions or whether there is a need to explore its efficacy as a binding precedent in the changed circumstances.

A. From promise to right: the constitutional journey of article 21A and the right to elementary education in India

72. The right to elementary education in India did not begin its journey as a fundamental right. In the Constitution, as originally drafted, elementary education was initially recognized only as a Directive 60 Principle of State Policy under Article 45, which provided: “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.”

73. Article 45 seems to be the only directive principle framed with a specific time frame, reflecting the urgency and significance that the framers of the Constitution placed on its implementation. This directive, though aspirational, was unfortunately not judicially enforceable and depended heavily on the discretion and capacity of the State. The framers of the Constitution consciously placed ‘Education’ in Part IV, recognizing its criticality but also acknowledging the financial and administrative limitations of the newly independent nation.

74. The drafting history of the Constitution reveals that the inclusion of elementary education as a fundamental right was deliberated upon but ultimately deferred. Several members of the Constituent Assembly advocated for a justiciable fundamental right to education, arguing that without education, other rights and civil liberties would remain 61 meaningless . However, a competing viewpoint—concerned with

60 “Directive Principles” 61 Constituent Assembly of India Debates (Volume 7, 08.12.1948), 7.51.18 (Z.H. Lari); (Volume 8, 19.11.1948), 7.56.22 (Ananthasayanam Ayyangar), 7.56.53 & 7.56.56 (K.T. Shah)

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62 resource constraints and state capacity—prevailed . This led to the compromise of placing the right to elementary education as a non- enforceable and a non-binding directive principle, to be pursued by the State progressively over time.

75. However, through judicial pronouncements, the movement to recognize education, particularly elementary education, as a fundamental right gained momentum.

76. A decade before the enactment of the Constitution (Eighty-sixth Amendment) Act, 2002, which introduced Article 21A, a two-Judge 63 Bench of this Court in Mohini Jain v. State of Karnataka held: “12. … The right to education flows directly from right to life. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to make endeavour to provide educational facilities at all levels to its citizens.

17. We hold that every citizen has a ‘right to education’ under the Constitution. The State is under an obligation to establish educational institutions to enable the citizens to enjoy the said right. The State may discharge its obligation through state-owned or state-recognised educational institutions. When the State Government grants recognition to the private educational institutions it creates an agency to fulfil its obligation under the Constitution. The students are given admission to the educational institutions — whether state-owned or state-recognised — in recognition of their ‘right to education’ under the Constitution. Charging capitation fee in consideration of admission to educational institutions, is a patent denial of a citizen’s right to education under the Constitution.” 64

77. However, in Unni Krishnan, J. P. v. State of Andhra Pradesh , the correctness of the decision in Mohini Jain (supra) was challenged by private educational institutions. Though the decision was not affirmed

62 Constituent Assembly of India Debates (Volume 7, 23.11.1948) 63 (1992) 3 SCC 666 64 (1993) 1 SCC 645

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in its entirety, the lead judgment of the five-Judge Constitution Bench of this Court further expanded the right to elementary education and while holding that a child up to the age of 14 years has a fundamental right to free education, held as follows: “171. In the above state of law, it would not be correct to contend that Mohini Jain was wrong insofar as it declared that ‘the right to education flows directly from right to life’. But the question is what is the content of this right? How much and what level of education is necessary to make the life meaningful? Does it mean that every citizen of this country can call upon the State to provide him education of his choice? In other words, whether the citizens of this country can demand that the State provide adequate number of medical colleges, engineering colleges and other educational institutions to satisfy all their educational needs? Mohini Jain seems to say, yes. With respect, we cannot agree with such a broad proposition. The right to education which is implicit in the right to life and personal liberty guaranteed by Article 21 must be construed in the light of the directive principles in Part IV of the Constitution. So far as the right to education is concerned, there are several articles in Part IV which expressly speak of it. Article 41 says that the ‘State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want’. Article 45 says that ‘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’. Article 46 commands that ‘the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation’. Education means knowledge — and ‘knowledge itself is power’. As rightly observed by John

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Adams, ‘the preservation of means of knowledge among the lowest ranks is of more importance to the public than all the property of all the rich men in the country’. (Dissertation on Canon and Feudal Law, 1765) It is this concern which seems to underlie Article 46. It is the tyrants and bad rulers who are afraid of spread of education and knowledge among the deprived classes. Witness Hitler railing against universal education. He said: ‘Universal education is the most corroding and disintegrating poison that liberalism has ever invented for its own destruction.’ (Rauschning, The Voice of Destruction : Hitler speaks.) A true democracy is one where education is universal, where people understand what is good for them and the nation and know how to govern themselves. The three Articles 45, 46 and 41 are designed to achieve the said goal among others. It is in the light of these Articles that the content and parameters of the right to education have to be determined. Right to education, understood in the context of Articles 45 and 41, means : (a) every child/ citizen of this country has a right to free education until he completes the age of fourteen years, and (b) after a child/citizen completes 14 years, his right to education is circumscribed by the limits of the economic capacity of the State and its development. […].

175. Be that as it may, we must say that at least now the State should honour the command of Article 45. It must be made a reality — at least now. Indeed, the National Education Policy 1986 says that the promise of Article 45 will be redeemed before the end of this century. Be that as it may, we hold that a child (citizen) has a fundamental right to free education up to the age of 14 years.” (emphasis in original)

78. The decision in Unni Krishnan (supra), however, stands overruled by an eleven-Judge Constitution Bench of this Hon’ble Court in T.M.A. Pai Foundation (supra) albeit on a different point.

79. These two decisions together interpreted Article 21, i.e., the right to life, as including the right to elementary education, providing

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the groundwork for its constitutional recognition as a fundamental right. The right to life and dignity was held to be incomplete without access to basic education, thus, reading into the Constitution an implicit fundamental right to education even before it was formally codified in 2002.

80. These judicial efforts culminated in the Constitution (Eighty-sixth Amendment) Act, 2002, which introduced Article 21A into the Constitution.

81. Alongside Article 21A, the amendment also substituted Article 45 to focus on early childhood care and education and introduced a corresponding fundamental duty under Article 51A(k), requiring parents and guardians to ensure educational opportunities for their children between the ages of 6 and 14.

82. Article 21A, thus, marked a constitutional transformation by elevating the child’s right to free and compulsory elementary education to the status of an enforceable fundamental right.

83. Notably, the right to education which is positioned right after the right to life and personal liberty, underscores the intrinsic connection between life and knowledge acquisition, to be gained through elementary education. This sequence of rights is also reflective of Parliament’s consciousness of the critical nexus between knowledge and human dignity.

84. Indubitably, Pramati Educational and Cultural Trust (supra) could not have and, as such, did not see anything objectionable in Article 21A to hold that it trenches upon minority rights protected by Article

30. What it said is that the power under Article 21A vesting in the State does not extend to making a law to abrogate minority rights of establishing and administering schools of their choice.

B. B reathing life into the promise : the RTE A ct and the realisation of Article 21A

85. To give effect to the newly inserted fundamental right, i.e., Article 21A, Parliament enacted the RTE Act. The RTE Act breathed life into Article 21A by providing a comprehensive statutory framework to ensure access to free, compulsory, and quality elementary education for all children in the 6–14 age group.

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86. As outlined in the Statement of Objects and Reasons accompanying 65 the Right of Children to Free and Compulsory Education Bill, 2008 , the objectives of the RTE Bill read: “The Right of Children to Free and Compulsory Education Bill, 2008, is anchored in the belief that the values of equality, social justice and democracy and the creation of a just and humane society can be achieved only through provision of inclusive elementary education to all. Provision of free and compulsory education of satisfactory quality to children from disadvantaged and weaker sections is, therefore, not merely the responsibility of schools run or supported by the appropriate Governments, but also of schools which are not dependent on Government funds.”

87. Viewed holistically, the RTE Act—contrary to the commonly held belief—does not impose an onerous or excessive regulatory burden; rather, it lays down the bare minimum core obligations and standards that all schools [as defined in Section 2(n)] must follow to ensure that the constitutional promise envisioned by Article 21A is not rendered meaningless. They include requirements such as trained teachers, student-teacher ratio, adequate infrastructure, inclusive admission policies, age-appropriate common curriculum, etc. All these are indispensable to deliver quality elementary education.

88. At its heart, the RTE Act is an instrument for universalisation of education, which is rooted in the values of social inclusion, national development, and child-centric growth. It is aimed at bridging the gap between privileged and disadvantaged, and it ensures that every child, regardless of caste, creed, class, or community, is given a fair and equal opportunity to learn, grow, and thrive. The RTE Act is designed not to stifle institutional autonomy but to uphold a threshold of dignity, safety, equity, and universality in the learning environment for a child.

89. Born of Article 21A, the RTE Act is not merely another addition to the statute books. It is the living expression of a long-deferred promise. When the Constitution was first adopted, the right to education could find place only among the Directive Principles, tempered by

65 “RTE Bill”

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the economic and institutional limitations of a newly independent nation; yet, the vision was never abandoned but merely postponed. It took the nation over half a century of democratic maturity, social awakening, and judicial insistence for this vision to be shaped into a fundamental right.

90. In this sense, Article 21A stands, perhaps, a shade taller than many other rights, not merely by hierarchy but by the weight of the journey it carries—a journey of struggle, consensus, and above all, a reaffirmation that right to elementary education is not charity, but justice.

91. Against this backdrop, if a conflict were ever to arise between the two competing fundamental rights, i.e., Article 21A and Article 30, it must be remembered that not all rights stand on equal footing when their purposes diverge and reconciliation is no longer possible. In such a scenario, Article 30, though crucial in preserving cultural and educational autonomy, must be interpreted in tandem with Article 21A, for the latter is not merely a fundamental right but we consider it to be the foundation upon which the other rights of the younger generation would find meaning and voice. Article 21A is not just a right in isolation, it is an enabler of other fundamental rights, a unifying thread that weaves together the garland of all other fundamental rights promised by our Constitution. Despite transition from Part IV to Part III of the Constitution, much of the object and purpose for introduction of Article 21A would seem lost if means to provide free and compulsory education, which is sought to be achieved by enacting the RTE Act, were withheld for minorities for no better reason than that the RTE Act abrogates their right protected under Article 30. Education for children aged 6–14 is foundational for their development and the broader goals of nation building. The right to speak freely could ring hollow, the right to vote could become mechanical and the right to livelihood could largely be rendered meaningless when the younger generation were to grow up and transition to adulthood. To deny Article 21A its rightful primacy is to reduce it to a skeletal promise—a right without fundamentals, stripped of the very essence that animates our constitutional vision.

92. Any interpretation that diminishes the scope or limits the application of the RTE Act must, therefore, be critically examined against the broader backdrop of the constitutional evolution as traced aforesaid.

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C. The constitutional goal of universal elementary education and common schooling system

93. It is only in furtherance of its commitment to universal elementary education that Parliament enacted the Constitution (Eighty-sixth Amendment) Act, 2002, introducing Article 21A and elevating the right to free and compulsory education for all children aged between 6 and 14 years to the status of a fundamental right.

94. Therefore, at the outset, we must and do recognise that under the RTE Act, our focus is on elementary education which is the foundational building block of a child’s journey of learning, rather than tertiary or higher education. Since independence, Universal Elementary Education and the idea of a common schooling system have stood among the foremost national as well as constitutional goals. We may ask, why does the universalisation of elementary education matter so deeply? The answer is not far to seek. It is at this stage that the seeds of equality, opportunity, and national integration are sown—shaping not only individual futures but the very character of the nation.

95. Elementary education could count as the most crucial stage in the education cycle. It lays the foundation for lifelong learning, cognitive development, and social values. It shapes a child’s ability to think, question, and grow with a strong beginning. The early years of education lay the foundation for a child’s growth and learning, and access to quality elementary education ensures that this foundation is strong and equitable. Therefore, universal elementary education and a common schooling system aim to uphold a shared curriculum and uniform quality standards across both government and private schools, ensuring that every child receives an equal foundation, regardless of where they study. Without universal access, education becomes a privilege rather than a right, accentuating existing inequalities and denying children from disadvantaged backgrounds the opportunity to break the cycle of poverty.

96. Once could say that in India, by the age of 9 or 10, children are already deeply socialized into a fixed set of norms and behaviours shaped by their surroundings and that these patterns are not easily unlearned or altered instantly. It is in the early years, when minds are most receptive and identities still developing, that the foundation for learning and social growth is most effectively established.

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97. When every child receives the same minimum standard of elementary education, society moves closer to genuine substantial equality, where one’s start in life does not dictate his/her future potential. Moreover, universal elementary education is the bedrock of a healthy democracy and an empowered citizenry. It equips individuals with the basic skills of reading, writing, and critical thinking, enabling them to participate meaningfully in civic life, understand their rights and responsibilities, and contribute productively to the economy. Countries that have succeeded in achieving universal primary education have consistently demonstrated higher levels of social mobility, public health, and national cohesion.

98. This vision is clearly embedded in the RTE Act. Section 29 mandates that the curriculum and evaluation process for elementary education must be prescribed by an academic authority notified by the appropriate government. The curriculum is to reflect constitutional values and focus on the holistic development of the child—promoting creativity, physical and mental growth, learning through play and exploration, instruction in the child’s mother tongue where possible, and a stress-free, inclusive learning environment with continuous assessment.

99. In view thereof, Article 21A, which guarantees the right to free and compulsory education for all children aged 6 to 14, inherently includes the right to universal elementary education—education that reaches every child, regardless of background. It also embraces the idea of a common schooling system, where children from diverse socio-economic and cultural groups learn together in shared spaces.

D. Section 12(1)(c), minority institutions and the beginning of the conundrum

100. Section 12 of the RTE Act, which is the heart and soul of the RTE Act, is extracted hereunder: “12. Extent of school’s responsibility for free and compulsory education.— (1) For the purposes of this Act, a school, — (a) specified in sub-clause (i) of clause (n) of section 2 shall provide free and compulsory elementary education to all children admitted therein;

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(b) specified in sub-clause (ii) of clause (n) of section 2 shall provide free and compulsory elementary education to such proportion of children admitted therein as its annual recurring aid or grants so received bears to its annual recurring expenses, subject to a minimum of twenty-five per cent.; (c) specified in sub-clauses (iii) and (iv) of clause (n) of section 2 shall admit in class I, to the extent of at least twenty-five per cent of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion: Provided further that where a school specified in clause (n) of section 2 imparts pre-school education, the provisions of clauses (a) to (c) shall apply for admission to such pre-school education. (2) The school specified in sub-clause (iv) of clause (n) of section 2 providing free and compulsory elementary education as specified in clause (c) of sub-section (1) shall be reimbursed expenditure so incurred by it to the extent of per-child-expenditure incurred by the State, or the actual amount charged from the child, whichever is less, in such manner as may be prescribed: Provided that such reimbursement shall not exceed per-child-expenditure incurred by a school specified in sub-clause (i) of clause (n) of section 2: Provided further that where such school is already under obligation to provide free education to a specified number of children on account of it having received any land, building, equipment or other facilities, either free of cost or at a concessional rate, such school shall not be entitled for reimbursement to the extent of such obligation. (3) Every school shall provide such information as may be required by the appropriate Government or the local authority, as the case may be.”

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101. The mandate of Section 12(1)(c) is that schools shall reserve 25% of their seats in Class I for children belonging to the “weaker sections and disadvantaged groups from the neighbourhood”. The cost of educating these children is reimbursed by the government, thereby enabling access to quality education for those who might otherwise be excluded due to economic or social barriers.

102. Section 12(1)(c), to our mind, is perhaps the closest our nation has come to realizing the vision of an inclusive and rights-based universal elementary education. It reflects the idea of a common school system where children from diverse socio-economic backgrounds learn together under the same roof. In a country as deeply divided along class, caste, and community lines as ours, Section 12(1)(c) offers social integration through education. It seeks to dismantle the segregated nature of our schooling system and plant the seeds of egalitarian and universal learning environments.

103. It can reasonably be said that the origins of Section 12(1)(c) are rooted in a historical context of exclusion and systemic inequity insofar as access to education is concerned. The provision is a direct response to generations of marginalisation, especially of dalits, adivasis, religious minorities, and economically weaker sections, who have been pushed to the periphery of the formal schooling system. By embedding universal elementary education into the architecture of schooling, Section 12(1)(c) attempts to reimagine classrooms as shared, inclusive spaces where every child has an equal claim to dignity and opportunity. Importantly, the spirit of Section 12(1)(c) goes beyond mere admission quotas and focuses on universalisation of elementary education.

104. This was also echoed by the MHRD’s clarificatory memorandum on 66 the provisions of the RTE : “The idea that schooling should act as a means of social cohesion and inclusion is not new; it has been oft repeated. Inequitable and disparate schooling reinforces existing social and economic hierarchies, and promotes in the educated sections of society an indifference towards the plight of the poor.

66 Ministry of Human Resource Development, Government of India, ‘Clarification on Provisions’<https:// www.education.gov.in/sites/upload_files/mhrd/files/upload_document/RTE_Section_wise_rationale_ rev_0.pdf > (last accessed on 31st August, 2025)

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The currently used term ‘inclusive’ education implies, as did earlier terms like ‘common’ and ‘neighbourhood’ schools, that children from different backgrounds and with varying interests and ability will achieve their highest potential if they study in a shared classroom environment. The idea of inclusive schooling is also consistent with Constitutional values and ideals, especially with the ideals of fraternity, social justice and equality of opportunity. For children of socio-economically weaker backgrounds to feel at home in private schools, it is necessary that they form a substantial proportion or critical mass in the class they join. The relevant universe in which the proportion needs to be considered is the class/section. It is for this reason that the RTE Act provides for admission of 25% children from disadvantaged groups and weaker sections in class I only. This implies that these children cannot be pooled together in a separate section or afternoon shift. Any arrangement which segregates, or treats these children in a differentiated manner vis-à-vis the fee-paying children will be counter-productive. The rationale for 25% lies in the fact that the composition of caste/class indicated in the Census is fairly representative of the composition of children who are seeking admission under this provision. As per Census 2001, SCs constitute 16.2%, and STs constitute 8.2% (total 24.4%) of the population. Further, the Tendulkar Committee, set up by the Planning Commission to measure poverty, has estimated the below poverty line (BPL) population to be 37.2%. It is a fact that much of the population that suffers economic deprivation also suffers from social disadvantage. Thus, taken together, the figure of 25% for admission of children from disadvantaged groups and weaker sections is considered reasonable. Any lower proportion would jeopardize the long-term goal of the policy which is to strengthen social cohesion and bring out the best human resource potential inherent in our society as a whole. A smaller proportion would serve only a token purpose, and it will run the serious risk of creating the feeling of alienation among the children belonging to disadvantaged groups and

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weaker sections. Their participation in classroom interaction will be neither strong nor sufficiently manifest to enrich the overall experiential learning taking place in any given subject area. Only a critical mass can play such a role. The RTE Act provides for admission of 25% children from disadvantaged groups and weaker sections in Class I, not across the whole school. As children admitted to class I move to class II, new children will be admitted to class I, and so on till completion of 8 years of elementary education. The rationale for admission in class I only must be appreciated in human terms. Teachers who are used to a selective, homogeneous classroom environment cannot be expected to develop the required positive attitude and professional skills to deal with a diversified class overnight. The same applies to children. Children who have grown up to an age of nine or ten in a homogeneous or segregated environment have been socialized into a structure of norms and behaviour. They cannot be transformed on demand. Also, the overall school ethos cannot be expected to respond to a new policy in a positive manner all of a sudden. Education is indeed an act of faith and social engineering – but not quick-fix social engineering. In view of the fact that children take time to socialize and teachers take time to develop new attitudes and pedagogic skills, the RTE Act provides for admission of disadvantaged and poor children at the entry level, covering pre-school and Class I. With these children moving up, and a new cohort of children entering pre-school and Class I in each successive year, the school will gradually have a more diverse population spread across all classes. Progression at this pace will allow children the opportunity to grow up together and create bonds: bonds that can survive social walls. Progression at this pace can allow the school to develop the professional capacity to respond to the intellectual and emotional needs of children from diverse backgrounds. Children who are younger than eight years of age are yet to develop a stable social identity. Their values are still forming, and their motivation to derive meaning from experience, both concrete and social is very strong. Therefore, it is a valid

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argument that the policy of mixing children from different socio-economic strata has the best chance of succeeding if it starts from the formative years of nursery/kindergarten and Class I. Diversity enhances learning and development, while segregation impoverishes the classroom environment of all schools, private or government. Admission of 25% children from disadvantaged groups and weaker sections in the neighbourhood is not merely to provide avenues of quality education to poor and disadvantaged children. The larger objective is to provide a common place where children sit, eat and live together for at least eight years of their lives across caste, class and gender divides in order that it narrows down such divisions in our society. The other objective is that the 75% children who have been lucky to come from better endowed families, learn through their interaction with the children from families who haven’t had similar opportunities, but are rich in knowledge systems allied to trade, craft, farming and other services, and that the pedagogic enrichment of the 75% children is provided by such intermingling. This will of course require classroom practices, teacher training, etc. to constantly bring out these pedagogic practices, rather than merely make children from these two sections sit together. The often voiced concern about how the 25% children from disadvantaged groups and weaker sections can cope in an environment where rich children exist can be resolved when the teaching learning process and teachers use these children as sources of knowledge so that their esteem and recognition goes up and they begin to be treated as equals.”

105. Section 12(1)(c) in that manner is not just about giving disadvantaged children access to private schools. It aims to build shared spaces where children from all backgrounds learn and grow together. Privileged students gain exposure to diverse life experiences, while those from weaker sections gain confidence and opportunity. For this to succeed, pedagogy must evolve—teachers must be trained to value every child as a contributor to the learning process. Only then can the classroom become a true site of equality and transformation.

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106. However, following the enactment of the RTE Act, minority educational institutions raised concerns that enforcement of Section 12(1)(c) would disrupt their autonomy or institutional character and erode their constitutionally protected rights under Article 30(1). They feared that mandatory admissions under this provision could dilute their ability to preserve their distinct linguistic or religious character.

107. To recapitulate, Section 12(1)(c) being challenged before this Hon’ble Court in Society for Unaided Private Schools (supra), by a 2:1 majority, this Court upheld the constitutionality of Section 12(1)(c) of the RTE Act insofar as it applied to aided minority schools; however, Section 12(1)(c) was held to be ultra vires to the extent it sought to infringe the fundamental freedoms guaranteed to unaided minority schools under Article 30(1) of the Constitution. The Bench clarified that all unaided minority schools are exempt from the purview of Section 12(1)(c) while holding that the mandate under Section 12(1)(c) alters the very character of minority institutions, running contrary to the protections guaranteed under Article 30(1). The obligations under Section 12(1)(c) were held to be directory, not mandatory. Lastly, the Court held that as far as aided minority schools are concerned, Section 12(1)(c) would apply to such schools as Article 30(1) is subject to Article 29(2).

108. To address these apprehensions and prevent potential constitutional friction, the RTE Act was amended in 2012. Through this amendment, specific sub-clauses were inserted in Section 1, explicitly stating that the RTE Act shall apply subject to Articles 29 and 30. The newly added sub-clauses (4) and (5) are extracted hereunder: “(4) Subject to the provisions of articles 29 and 30 of the Constitution, the provisions of this Act shall apply to conferment of rights on children to free and compulsory education. (5) Nothing contained in this Act shall apply to Madrasas, Vedic Pathsalas and educational institutions primarily imparting religious instruction.”

109. While this move quelled the anxieties of minority institutions, it also opened the door to a series of new dilemmas concerning exclusion, regulatory arbitrage, and the scope of the fundamental right under Article 21A and Section 12(1)(c) vis-à-vis the rights of the minority institutions under Article 30.

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110. As noted, vide a separate order, a reference was made to a Constitution Bench to examine the validity of Article 15(5), inserted by the Constitution (Ninety-third Amendment) Act, 2005, and Article 21A, inserted by the Constitution (Eighty-sixth Amendment) Act, 2002.

111. The said reference was answered in Pramati Educational and Cultural Trust (supra), with the five-Judge Constitution Bench unanimously holding, in paragraph 56, 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”.

112. Thus, Pramati Educational and Cultural Trust (supra) overruled Society for Unaided Private Schools (supra) on this limited point, while affirming the remainder of the decision. While Society for Unaided Private Schools (supra) exempted unaided minority institutions from the obligations of the RTE Act, Pramati Educational and Cultural Trust (supra) went a step further by extending the exemption to even those minority schools that receive government aid. Collectively, these two judgments have placed the entire category of minority educational institutions, whether aided or unaided, beyond the purview of the requirements of the RTE Act.

113. The exemption granted to minority institutions has since become the cornerstone of constitutional debates around the balance between the right to elementary education and minority rights.

114. Against this backdrop, it is now pertinent to examine—more than a decade later since its pronouncement—the aftermath of Pramati Educational and Cultural Trust (supra) and to assess whether it has truly fulfilled the purpose it set out to achieve or whether it has, in effect, deepened the very tensions it sought to resolve.

E. The cost of exclusion: consequences of exempting minority institutions from the ambit of the RTE Act

115. To begin with, a study conducted by the National Commission for 67 Protection of Child Rights in 2021 reveals that only 8.76% of students in minority schools come from socially and economically

67 NCPCR Study

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68 disadvantaged sections . This low representation cuts across all communities and highlights a systemic exclusion.

116. As per the NCPCR Study, an overwhelming 62.5% of the total students in minority schools belong to non-minority communities, and in states like Andhra Pradesh, Jharkhand, Punjab, and Delhi, this percentage was found to be even higher. This is indicative of many institutions labelled as “minority” not serving their communities exclusively, but continuing to enjoy exemption from inclusionary mandates.

117. In this light, the consequences of Pramati Educational and Cultural Trust (supra) cannot be confined merely to its holding that aided and unaided minority institutions are exempt from the purview of the RTE Act. To grasp the full weight of the decision, there is need to look beyond its doctrinal contours and examine its consequences on the lives of millions of children for whom the RTE Act was conceived.

118. As noted, in Pramati Educational and Cultural Trust (supra), the Constitution Bench was called upon to determine two issues. For the purposes of the present matter, our concern is confined only to the second issue which the Bench framed. For ease of reference, we reproduce it once again hereunder: “5.2. (ii) Whether by inserting Article 21-A of the Constitution by the Constitution (Eighty-sixth Amendment) Act, 2002, Parliament has altered the basic structure or framework of the Constitution?”

119. The above issue gave rise to a connected sub-issue: whether the provisions of the RTE Act could validly apply to minority schools, aided or unaided, falling under Article 30(1) of the Constitution. The Bench while holding that Article 21A, by itself, did not violate or alter the basic structure of the Constitution, took the view while addressing the sub-issue that the entire RTE Act, insofar as it applied to minority educational institutions protected under Article 30(1), was unconstitutional and ultra vires.

120. What is particularly striking to us is the Bench’s conclusion on the sub-issue. Such conclusion appears to be based solely on interpretation of Section 12 of the RTE Act by the Bench, and

68 NCPCR, “Impact of exemption under Article 15(5) w.r.t. article 21A of the Constitution of India on education of children of minority communities” (March 2021, NCPCR & Quality Council of India)

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sub-section (1)(c) thereof in particular, mandating reservation of 25% seats at the entry level for children from weaker sections and disadvantaged groups. The Bench observed that “legal obligation to admit children belonging to weaker sections and disadvantaged groups in the neighbourhood who need not be children of the members of the minority community which has established the school […] cannot be forced upon a minority institution because that may 69 destroy the minority character of the school” . Resting thereon, it was concluded that if the RTE Act is made applicable to minority schools, aided or unaided, the right of the minorities under Article 30(1) of the Constitution will stand abrogated. Conspicuously silent as it is on any examination or assessment of the other provisions of the RTE Act such as those relating to teacher qualifications, infrastructural norms, or child safety measures and how, if at all, they conflict with Article 30(1) — the one aspect that eludes us is the complete absence in Pramati Educational and Cultural Trust (supra) of any discussion on or any analysis of any provision of the RTE Act vis-à-vis Article 30(1) of the Constitution other than Section 12.

121. The point of concern which, therefore, arises is: if the only substantive concern raised by the Bench was related to Section 12(1)(c), what then justified the sweeping conclusion that the entire RTE Act was inapplicable to minority institutions, aided or unaided? Unfortunately, Pramati Educational and Cultural Trust (supra) does not appear to offer any reasoning whatsoever for extending the exemption beyond Section 12(1)(c). In the absence of any analysis of the other sections of the RTE Act vis-à-vis Article 30(1), the blanket exclusion, with respect, appears legally suspect and questionable apart from being disproportionate.

122. We are mindful of the decision of a three-Judge Bench of this Court in M.R. Apparao (supra) where it has been held that the decision of this Court cannot be assailed on the ground that certain aspects had not been considered or that the relevant provisions were not brought to the notice of the Court. However, the relevant dictum in paragraph 7 of such decision is primarily for the guidance of the high courts and the subordinate courts which are bound by Article 141 to follow the

69 Paragraph 55

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law declared, even though there could be valid reason to suspect and conclude that law had been declared without considering all aspects or relevant provisions. No matter what the circumstances are, the high courts and the subordinate courts are bound to follow the decision.

123. The law declared by the Supreme Court, per Article 141 of the Constitution, binds all courts which would include us too. Nonetheless, our jurisdiction permits and we possess a unique authority, unlike the high courts and the subordinate courts, to re-examine legal principles laid down by previous Benches. Such re-examination, however, cannot obviously be resorted to except for compelling reasons. Apart from the core issues being considered by us, as to whether reconsideration of Pramati Educational and Cultural Trust (supra) is necessitated or not, one other compelling reason that dissuades us from blindly following it has its roots in M.R. Apparao (supra) itself. In paragraph 7, we find inter alia the following passage: “7. … It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has ‘declared law’ it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An ‘obiter dictum’ as distinguished from a ratio decidendi is an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced, but even though an obiter may not have a binding effect as a precedent, but it cannot be denied that it is of considerable weight. The law which will be binding under Article 141 would, therefore, extend to all observations of points raised and decided by the Court in a given case. So far as constitutional matters are concerned, it is a practice of the Court not to make any pronouncement on points not directly raised for its decision. …” (emphasis ours)

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124. To what extent Pramati Educational and Cultural Trust (supra) lays down law which is definitive and binding under Article 141 or its observations are to be treated as ‘obiter dictum’ would be considered later as we progress further.

125. We are a bit distressed to note from the materials placed on record including the NCPCR Study that exclusion of the RTE Act has created a fertile ground for misuse. Since the Constitution (Ninety- third Amendment) Act, 2006, there has been a sharp rise in schools applying for minority status. The NCPCR Study finds that around 85% of minority institutions received their minority status post-2006, i.e., many after the passage of the RTE Act.

126. These trends, arguably, raise concerns that the minority status is often claimed not to preserve identity, but to avoid compliance with inclusionary obligations under the RTE Act. The absence of clear guidelines on minimum enrolment of minority students has also made it easier for institutions to claim minority status without fulfilling its spirit. With no obligation to admit disadvantaged students, many of these institutions remain insulated from broader constitutional goals of equality and inclusion.

127. The RTE Act ensures children a range of entitlements like basic infrastructure, trained teachers, books, uniforms, and mid-day meals, which are essential for a dignified educational experience. However, minority schools, excluded from the RTE Act’s purview, are not necessarily bound to provide these facilities. Some minority schools might provide a few facilities as are mandated by the RTE Act, but others may fall short leaving their students without access to such mandated facilities. For many of these students, such benefits are not just amenities but affirmations of belonging, equality, and recognition.

128. Beyond physical provisions, the RTE Act also ensures common 70 curricular standards through notified academic authorities . These guarantee that every child receives quality education based on constitutional values. Minority institutions, however, operate without such uniform guidelines, leaving children and their parents uncertain about what and how they are taught, and often disconnected from the national framework of universal learning.

70 see, Section 29 of the RTE Act

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129. For the reasons discussed above, we hasten to observe with utmost humility at our command that the decision in Pramati Educational and Cultural Trust (supra) might have, unknowingly, jeopardized the very foundation of universal elementary education. Exemption of minority institutions from the RTE Act leads to fragmentation of the common schooling vision and weakening of the idea of inclusivity and universality envisioned by Article 21A. We are afraid, instead of uniting children across caste, class, creed, and community, it reinforces ‘divides’ and ‘dilutes’ the transformative potential of shared learning spaces. If the goal is to build an equal and cohesive society, such exemptions move us in the opposite direction. What commenced as an attempt to protect cultural and religious freedoms has inadvertently created a regulatory loophole, leading to a surge in institutions seeking minority status to bypass the regime ordained by the RTE Act.

130. It is trite that the State has been entrusted with the responsibility of achieving substantive equality by the framers of the Constitution with the introduction of Articles 14 and 15 of the Constitution. Knit neatly together, they mandate the State to ensure that the inherent inequality in the society is reduced by providing a level playing field to the weak and oppressed members of the society.

131. In the wake of Pramati Educational and Cultural Trust (supra), we are pained to observe that minority status seems to have become a vehicle for circumventing the mandate of the RTE Act. In our humble opinion, it has opened up a situation whereby multiple institutions have sought to acquire minority status to become autonomous. It has also opened the door for potential misuse. Exemption of even aided minority institutions from the framework of the RTE Act has further encouraged the proliferation of minority-tagged schools not necessarily for the preservation of language, script, or culture, but to circumvent statutory obligations. This has distorted the spirit of Article 30(1), which was never intended to create enclaves of privilege at the cost of national developmental goals.

132. We end the discussion by observing that the true impact and legacy of a judicial pronouncement lies not merely in the precision of its reasoning, but by whether it stands the test of time; whether, years after its pronouncement, it continues to respond meaningfully to the problem it set out to address and serve the ends of justice or has failed to do so. The test of such a decision is whether it has alleviated

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or aggravated the practical challenges it sought to remedy and lived realities it endeavoured to shape. Painfully though, we regret to observe that the ruling in Pramati Educational and Cultural Trust (supra) strikes at the heart of good quality universal elementary education and its consequences are far-reaching.

F. Does Article 30(1) really envisage blanket immunity from all forms of regulation to minority institutions?

133. Articles 29 and 30 of the Constitution together constitute the ‘Cultural and Educational Rights’. The text of both provisions is reproduced below: “29. Protection of interests of minorities.—(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same. (2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

30. Right of minorities to establish and administer educational institutions.—(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. (1-A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.] (2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.”

134. Clause (1) of Article 29 guarantees that any section of citizens having a distinct language, script, or culture has the right to conserve the

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same. Clause (2) adds a vital equality dimension, prohibiting denial of admission into educational institutions maintained by the State or receiving aid from State funds on grounds of religion, race, caste, language, or any of them.

135. Article 30(1) of the Constitution guarantees minorities the right to establish and administer educational institutions of their choice. However, this right is not absolute, nor does it imply blanket immunity from all regulatory frameworks. This Court, in T.M.A. Pai Foundation (supra), has held that while the autonomy of minority institutions must be protected, it is not beyond the reach of reasonable regulation in the interest of maintaining educational standards and achieving constitutional goals.

136. The purpose of Article 30(1) is to preserve the linguistic and cultural identity of minority communities through education, not to create parallel systems that are insulated from universally applicable norms. Basic requirements related to infrastructure, teacher qualifications, and inclusive access, especially at the elementary level under Article 21A, do not interfere with a school’s minority character. On the contrary, these norms ensure that the right to administer does not become a license to exclude or operate without accountability. Interpreting Article 30(1) as a blanket shield erodes the balance between autonomy and public interest, and undermines the constitutional vision of inclusive, equitable education for all.

137. A brief reference to the Constituent Assembly Debates may be apt at this stage. The original text of Article 29(2) [Article 23(2) in the Draft Constitution of India, 1948] read thus: “(2) No minority whether based on religion, community or language shall be discriminated against in regard to the admission of any person belonging to such minority into any educational institution maintained by the State.”

138. This language was met with concern by the assembly members. Pandit Thakur Das Bhargava proposed three important changes: (i) replacing “no minority” with “no citizen” to universalise the protection, (ii) extending the provision to include not only State-maintained institutions but also those receiving aid from the State, and (iii) broadening the grounds of protection from just “religion, community

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or language” to include “religion, race, caste, language or any of 71 them” . He stated: “Now, Sir, it so happens that the words ‘no minority’ seek to differentiate the minority from the majority, whereas you would be pleased to see that in the Chapter the words of the heading are ‘cultural and educational rights’, so that the minority rights as such should not find any place under this section. Now if we read Clause (2) it would appear as if the minority had been given certain definite rights in this clause, whereas the national interests require that no majority also should be discriminated against in this matter. Unfortunately, there is in some matters a tendency that the minorities as such possess and are given certain special rights which are denied to the majority. It was the habit of our English masters that they wanted to create discriminations of this sort between the minority and the majority. Sometimes the minority said they were discriminated against and on other occasions the majority felt the same thing. This amendment brings the majority and the minority on an equal status. In educational matters, I cannot understand, from the national point of view, how any discrimination can be justified in favour of a minority or a majority. Therefore, what this amendment seeks to do is that the majority and the minority are brought on the same level. There will be no discrimination between any member of the minority or majority in so far as admission to educational institutions are concerned. So I should say that this is a charter of the liberties for the student-world of the minority and the majority communities equally.” (emphasis ours)

139. Shri Bhargava’s proposed amendments were ultimately accepted, and what we now have as Article 29(2) reflects the deliberate and inclusive vision of the Constituent Assembly. It affirms that in matters

71 Constituent Assembly of India Debates (Volume 7, 08.12.1948), 7.69.35 & 7.69.36 (Pandit Thakur Dass Bhargava)

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of admission to educational institutions funded by the State, no citizen—minority or majority—should face discrimination on specified grounds. The framers thus sought to establish a level playing field in education, rooted in the principles of equality and non-discrimination.

140. Is the right conferred by Article 30(1) absolute, or does it imply blanket immunity from all regulatory frameworks? A seven-Judge Bench of this Court, upon reference by the President, held in In Re: Kerala 72 Education Bill, 1957 : “20. Articles 29 and 30 are set out in Part III of our Constitution which guarantees our fundamental rights. They are grouped together under the sub-head ‘Cultural and Educational Rights’. The text and the marginal notes of both the articles show that their purpose is to confer those fundamental rights on certain sections of the community which constitute minority communities. Under clause (1) of Article 29 any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own has the right to conserve the same. It is obvious that a minority community can effectively conserve its language, script or culture by and through educational institutions and, therefore, the right to establish and maintain educational institutions of its choice is a necessary concomitant to the right to conserve its distinctive language, script or culture and that is what is conferred on all minorities by Article 30(1) which has hereinbefore been quoted in full. This right, however, is subject to clause 2 of Article 29 which provides that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

22. … The real import of Article 29(2) and Article 30(1) seems to us to be that they clearly contemplate a minority institution with a sprinkling of outsiders admitted into it. By admitting a non-member into it the minority institution does not shed its character and cease to be a minority

72 [1959] SCR 995

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institution. Indeed the object of conservation of the distinct language, script and culture of a minority may be better served by propagating the same amongst non-members of the particular minority community. In our opinion, it is not possible to read this condition into Article 30(1) of the Constitution.” (emphasis ours)

141. As evident from the above, Article 30(1), in the context of aided minority institutions, is subject to the mandate of Article 29(2), which expressly prohibits denial of admission to any citizen in institutions maintained by the State or receiving State aid, on grounds of religion, race, caste, language, or any of them. A plain reading of Article 29(2) makes the position clear that an educational institution maintained by the State or receiving aid out of State funds cannot deny admission on, inter alia, grounds of religion. Significantly, Pramati Educational and Cultural Trust (supra) does not discuss Article 29(2) in the context of the answer to the second issue, though raised by the Additional Solicitor General as recorded in paragraph 47, while Article 29(2) is merely quoted in the discussion while answering the first issue at paragraph 32. To our mind, consideration of Article 29(2) in the proper perspective could have brought about a different outcome insofar as applicability of Section 12(1)(b) of the RTE Act to schools specified in sub-clause (ii) of clause (n) of Section 2 thereof.

142. With respect to unaided minority institutions, the interpretation of Article 30 must be guided by its underlying purpose, i.e., to preserve the cultural, linguistic, and educational identity of minority communities and promote their welfare. As clarified in In Re: The Kerala Education Bill (supra), the mere admission of a “sprinkling of outsiders” neither defeats the purpose of Article 30 nor does it dilute or alter the minority character of such institutions.

143. It is clear on a reading of the authorities in the relevant field that Article 30(1) has never been construed as conferring blanket immunity on minority institutions from all forms of regulation. Even at a time when the promise to provide free and compulsory elementary education was merely a directive principle under Article 45 and not yet elevated to a fundamental right, this Court in In Re: The Kerala Education Bill (supra) recognised the need to harmonise the rights under Article 30(1) with the broader constitutional duty of the State to promote free and

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compulsory education. This Court observed that apparent tensions between these provisions must be resolved through reconciliation by giving effect to both and achieving a constitutional synthesis. It held that the right of minorities to administer educational institutions of their choice does not preclude the State from prescribing reasonable conditions for the grant of aid, including those intended to uphold educational standards and promote inclusivity. With respect to unaided minority institutions, the interpretation of Article 30 must be guided by its underlying purpose of preserving the cultural, linguistic, and educational identity of minority communities and promoting their welfare. As clarified in In Re: The Kerala Education Bill (supra), the mere admission of a “sprinkling of outsiders” neither defeats the purpose of Article 30 nor does it dilute or alter the minority character of such institutions.

G. Does the regulatory framework under the rte act, flowing from Article 21A, classify as a reasonable restriction under article 19(6)?

144. This Court in its numerous decisions has affirmed that the right to establish and administer educational institutions, whether for profit or not, is protected under Article 19(1)(g) of the Constitution. For instance, the lead judgment authored by Hon’ble B.N. Kirpal, CJI.in T.M.A. Pai Foundation (supra) held thus: “18. With regard to the establishment of educational institutions, three articles of the Constitution come into play. Article 19(1)(g) gives the right to all the citizens to practise any profession or to carry on any occupation, trade or business; this right is subject to restrictions that may be placed under Article 19(6). Article 26 gives the right to every religious denomination to establish and maintain an institution for religious purposes, which would include an educational institution. Article 19(1)(g) and Article 26, therefore, confer rights on all citizens and religious denominations to establish and maintain educational institutions.”

145. Undoubtedly so. However, Article 19(6) carves out a clear exception to Article 19 including 19(1)(g), permitting the State to impose reasonable restrictions in the interest of the general public. The RTE Act, enacted to give effect to Article 21A, ought to be viewed as one

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such “reasonable restriction” falling within the contours of Article 19(6), aimed at advancing a constitutionally recognised public good, i.e., universal elementary education for children aged 6-14 years. The objective behind the RTE Act, one has to realize and remember, is not to curtail legitimate exercise of rights under Articles 19(1)(g), 26 and 30, but to ensure that the foundational rights of children are not sacrificed at the altar of unregulated commercialisation.

146. In a constitutional framework that is animated by the values of justice, equality, fraternity and dignity, commercial freedoms under Article 19(1)(g) must yield where they conflict with the fulfilment of Fundamental Rights particularly those of children. We should not forget that the RTE Act is the legislative expression of a fundamental right under Article 21A. Its regulatory mandate, therefore, acquires constitutional legitimacy through Article 21A, and by extension, Article 21. When tested against the standard of reasonableness under Article 19(6), the regulatory measures imposed by the RTE Act are not only not arbitrary, they are necessary, imperative and proportionate, and in furtherance of the larger constitutional goal and vision of Article 21A.

147. A six-Judge Bench of this Court in Rev. Sidhrajbhai Sabhai vs. 73 State of Gujarat had held that: “15. The right established by Article 30(1) is a fundamental right declared in terms absolute. Unlike the fundamental freedoms guaranteed by Article 19 it is not subject to reasonable restrictions. It is intended to be a real right for the protection of the minorities in the matter of setting up of educational institutions of their own choice. The right is intended to be effective and is not to be whittled down by so-called regulative measures conceived in the interest not of the minority educational institution, but of the public or the nation as a whole. If every order which while maintaining the formal character of a minority institution destroys the power of administration is held justifiable because it is in the public or national interest, though not in its interest as an educational institution the right guaranteed by Article 30(1) will be but a ‘teasing illusion’ a promise

73 [1963] 3 SCR 837

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of unreality. Regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as a minority institution effective as an educational institution. Such regulation must satisfy a dual test-the test of reasonableness, and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it.”

148. However, the decision in Rev. Sidhrajbhai Sabhai (supra) stands overruled by the majority in T.M.A. Pai Foundation (supra). While so overruling, it was held that the right under Article 30(1) cannot be stretched to override the national interest or to prevent the Government from framing regulations in that regard. The relevant extracts are reproduced hereunder: “107. The aforesaid decision does indicate that the right under Article 30(1) is not so absolute as to prevent the Government from making any regulation whatsoever. As already noted hereinabove, in Sidhajbhai Sabhai case [(1963) 3 SCR 837 : AIR 1963 SC 540] it was laid down that regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality and public order could be imposed. If this is so, it is difficult to appreciate how the Government can be prevented from framing regulations that are in the national interest, as it seems to be indicated in the passage quoted hereinabove. Any regulation framed in the national interest must necessarily apply to all educational institutions, whether run by the majority or the minority. Such a limitation must necessarily be read into Article 30. The right under Article 30(1) cannot be such as to override the national interest or to prevent the Government from framing regulations in that behalf. It is, of course, true that government regulations cannot destroy the minority character of the institution or make the right to establish and administer a mere illusion; but the right under Article 30 is not so absolute as to be above the law. It will further be seen that in Sidhajbhai Sabhai case [(1963) 3 SCR 837 : AIR 1963 SC 540] no

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reference was made to Article 29(2) of the Constitution. This decision, therefore, cannot be an authority for the proposition canvassed before us.”

149. While the autonomy of minority institutions must be protected, it is not beyond the reach of reasonable regulation in the interest of maintaining educational standards and achieving constitutional goals.

150. Even before T.M.A. Pai Foundation (supra), a nine-Judge Bench of this Court in Ahmedabad St. Xavier’s College Society (supra) held that: “20. The right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not an absolute right. This right is not free from regulation. Just as regulatory measures are necessary for maintaining the educational character and content of minority institutions similarly regulatory measures are necessary for ensuring orderly, efficient and sound administration. Das, C.J., in the Kerala Education Bill case summed up in one sentence the true meaning of the right to administer by saying that the right to administer is not the right to mal-administer.” (emphasis ours)

151. The aforesaid discussion tends to support our opinion that rights under Article 30(1), not being absolute, cannot be claimed to the complete exclusion of Article 21A. The former cannot be construed as overriding the mandate of the latter. Article 30(1), which guarantees minorities the right to establish and administer educational institutions of their choice, is undoubtedly a vital part of the constitutional promise to preserve linguistic and religious diversity. However, this right, like all others under Part III, is not absolute. It must be read in harmony with other Fundamental Rights and constitutional goals. When minority institutions engage in the act of imparting education, particularly elementary education, they necessarily operate within a shared constitutional ecosystem. To argue that Article 30(1) grants the minority institutions immunity from all statutory frameworks aimed at securing the right to education under Article 21A or that there can be no restrictions imposed under Article 19(6) would be to prioritize one right over another, thereby undermining the right to education under Article 21A.

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H. M inority institutions and the shared constitutional responsibility under Article 21A

152. An argument which has been raised before us and which was successfully argued in Pramati Educational and Cultural Trust (supra) is that Article 21A casts an obligation solely on the State to ensure full implementation of the right and, therefore, minority institutions should not be burdened with how the State intends to carry forward its vision of implementation of such right.

153. It is true that Article 21A imposes a primary duty upon the State to ensure the provision of free and compulsory elementary education. However, the fulfilment of this duty necessarily involves the participation of both public and private stakeholders in the education ecosystem. Minority institutions that voluntarily choose to engage in the public function of imparting elementary education cannot simultaneously claim complete insulation from regulatory frameworks that give effect to the constitutional mandate under Article 21A. The RTE Act is one such regulatory framework.

154. The vision of universal elementary education under Article 21A, indubitably, cannot be achieved by the State alone, in isolation. Education, especially at the foundational level, is a shared constitutional responsibility. Minority institutions, while retaining their autonomy in matters essential to their cultural and linguistic identity, do not operate in a vacuum. Once they enter the realm of formal schooling and benefit from recognition, affiliation, or aid from the State, they partake in the broader constitutional project of building an inclusive and educated society. It would therefore be constitutionally untenable to argue that such institutions remain unaffected by frameworks such as the RTE Act through which the State seeks to discharge its obligations. Reasonable participation in this vision does not and cannot dilute its institutional character.

155. We, therefore, doubt the decision in Pramati Educational and Cultural Trust (supra) on this aspect.

I. Teachers’ role in imparting quality education

156. Quality of teachers and teaching standards are integral to the fundamental right to education under Article 21A cannot perhaps be doubted. This Court, times without number, has emphasized that ‘education’ would be meaningless if it is not accompanied by

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quality education, which is primarily dependent on qualified and well- trained teachers. Further, it is the State’s constitutional obligation to ensure that educational institutions maintain high teaching standards, and appointments of teachers should strictly adhere to prescribed qualifications to maintain these educational standards.

157. The importance of training for teachers was discussed by this Court in N.M. Nageshwaramma v. State of A.P.74. Mushrooming of unauthorised teacher training institutes in the State of Andhra Pradesh was under consideration. While dismissing the writ petitions before it, the concern expressed more than forty years back by this Court appears to be relevant even now. It was said: “3. … The Teachers Training Institutes are meant to teach children of impressionable age and we cannot let loose on the innocent and unwary children, teachers who have not received proper and adequate training. True they will be required to pass the examination but that may not be enough. Training for a certain minimum period in a properly organised and equipped Training Institute is probably essential before a teacher may be duly launched. …”

158. This Court in Andhra Kesari Educational Society v. Director of School Education75 upon deciding the lis before it made the following parting remarks: “20. … Though teaching is the last choice in the job market, the role of teachers is central to all processes of formal education. The teacher alone could bring out the skills and intellectual capabilities of students. He is the ‘engine’ of the educational system. He is a principal instrument in awakening the child to cultural values. He needs to be endowed and energised with needed potential to deliver enlightened service expected of him. His quality should be such as would inspire and motivate into action the benefiter. He must keep himself abreast of everchanging conditions. He is not to perform in a wooden and unimaginative way. He must eliminate fissiparous tendencies and attitudes

74 (1986) Supp. SCC 166 75 (1989) 1 SCC 392

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and infuse nobler and national ideas in younger minds. His involvement in national integration is more important, indeed indispensable. It is, therefore, needless to state that teachers should be subjected to rigorous training with rigid scrutiny of efficiency. It has greater relevance to the needs of the day. The ill-trained or sub-standard teachers would be detrimental to our educational system; if not a punishment on our children. The Government and the University must, therefore, take care to see that inadequacy in the training of teachers is not compounded by any extraneous consideration.”

159. Similarly, the significance of quality training to equip teachers to mould the future citizenry of the country, was discussed in State of Maharashtra v. Vikas Sahebrao Roundale76. The relevant passage reads thus: “12. … The teacher plays pivotal role in moulding the career, character and moral fibres and aptitude for educational excellence in impressive young children. Formal education needs proper equipping of the teachers to meet the challenges of the day to impart lessons with latest techniques to the students on secular, scientific and rational outlook. A well-equipped teacher could bring the needed skills and intellectual capabilities to the students in their pursuits. The teacher is adorned as Gurudevobhava, next after parents, as he is a principal instrument to awakening the child to the cultural ethos, intellectual excellence and discipline. The teachers, therefore, must keep abreast of ever-changing techniques, the needs of the society and to cope up with the psychological approach to the aptitudes of the children to perform that pivotal role. In short teachers need to be endowed and energised with needed potential to serve the needs of the society. The qualitative training in the training colleges or schools would inspire and motivate them into action to the benefit of the students. …”

76 (1992) 4 SCC 435

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160. Then again, this Court in Chandigarh Administration. v. Rajni Vali (Mrs.)77 reiterated the State’s obligation to maintain a certain standard of teaching and that appointment of qualified teachers was the bare minimum to be achieved in any institution by holding thus: “6. The position has to be accepted as well settled that imparting primary and secondary education to students is the bounden duty of the State Administration. It is a constitutional mandate that the State shall ensure proper education to the students on whom the future of the society depends. In line with this principle, the State has enacted statutes and framed rules and regulations to control/ regulate establishment and running of private schools at different levels. The State Government provides grant- in-aid to private schools with a view to ensure smooth running of the institution and to ensure that the standard of teaching does not suffer on account of paucity of funds. It needs no emphasis that appointment of qualified and efficient teachers is a sine qua non for maintaining high standards of teaching in any educational institution. …”

161. In State of Orissa v. Mamata Mohanty78, the central role played by a teacher in shaping individuals, and future citizens, was emphasized to establish that the State must be uncompromising when it comes to quality of teachers recruited. This Court ruled: “33. In view of the above, it is evident that education is necessary to develop the personality of a person as a whole and in totality as it provides the process of training and acquiring the knowledge, skills, developing mind and character by formal schooling. Therefore, it is necessary to maintain a high academic standard and academic discipline along with academic rigour for the progress of a nation. Democracy depends for its own survival on a high standard of vocational and professional education. Paucity of funds cannot be a ground for the State not to provide quality education to its future citizens. It is for this reason that in order to maintain the standard of

77 (2000) 2 SCC 42 78 (2011) 3 SCC 436

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education the State Government provides grant-in-aid to private schools to ensure the smooth running of the institution so that the standard of teaching may not suffer for want of funds.

34. Article 21-A has been added by amending our Constitution with a view to facilitate the children to get proper and good quality education. However, the quality of education would depend on various factors but the most relevant of them is excellence of teaching staff. In view thereof, quality of teaching staff cannot be compromised. The selection of the most suitable persons is essential in order to maintain excellence and the standard of teaching in the institution. It is not permissible for the State that while controlling the education it may impinge the standard of education. It is, in fact, for this reason that norms of admission in institutions have to be adhered to strictly. Admissions in mid-academic sessions are not permitted to maintain the excellence of education.”

162. The primacy of providing elementary education and strict compliance with teaching standards and qualifications was highlighted, in Bhartiya Seva Samaj Trust v. Yogeshbhai Ambalal Patel79, in the following words: “26. … education and particularly that elementary/basic education has to be qualitative and for that the trained teachers are required. The legislature in its wisdom after consultation with the expert body fixes the eligibility for a particular discipline taught in a school. Thus, the eligibility so fixed requires very strict compliance and any appointment made in contravention thereof must be held to be void.”

163. While reflecting on free and compulsory education, we cannot, therefore, be oblivious of the need for quality education to be imparted to children aged between 6 and 14 years. Compromising the quality of a teacher would necessarily compromise quality of education, and is a direct threat to the right of children to quality education

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which is a necessary concomitant of the right guaranteed by Article 21A. This, in turn, would render the entire object and purpose of the RTE Act meaningless. In the sphere of primary education, a qualified teacher, at the very least, would be an assurance of quality education. Quality of education is, therefore, inherent in the right to education under Article 21A.

J. Applicability of the TET to in-service teachers appointed prior to 2009 and requirement of TET qualification for promotion of teachers

164. There are yet two other connected issues that require our attention. The TET is a statutory requirement introduced under the RTE Act and the corresponding NCTE notifications. It is aimed at ensuring minimum professional standards in the recruitment of elementary school teachers, in line with the mandate under Section 23 of the RTE Act.

165. Section 23 of the RTE Act vests the Central Government with the power to designate an academic authority to prescribe minimum qualifications for teachers. Pursuant to conferment of such power, the NCTE was notified as the academic authority under sub-section (1) which is empowered to prescribe the eligibility criteria for appointment as teachers in schools governed by the RTE Act.

166. In exercise of its authority under Section 23(1), the NCTE issued a Notification dated 23rd August, 2010, later amended by Notification dated 29th July, 2011, laying down that passing the TET is a mandatory condition for appointment of teachers in classes I to VIII in schools covered by Section 2(n) of the RTE Act. The notifications clarify that the TET must be conducted by the appropriate Government in accordance with the guidelines framed by the NCTE. The legal position emerging therefrom is clear: the TET is not a mere procedural requirement but forms an essential part of the minimum qualification criteria.

167. Importantly, the first and second provisos to Section 23(2) of the RTE Act carve out a transitional obligation for in-service teachers who did not possess the minimum qualifications at the time of commencement of the RTE Act. They were required to acquire such qualifications including passing the TET within a prescribed time frame. The second proviso introduced by the Right of Children to Free and Compulsory

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80 Education (Amendment) Act, 2017 extended this compliance period by a period of four years from the date of commencement of the 2017 Amendment Act, which was deemed to have come into force on 1st April, 2015, i.e., till 2019 and not 2021 if four years were calculated from the date of the notification (i.e., 9th August, 2017). The express legislative intent was to bring all in-service teachers within the ambit of uniform quality standards.

168. NCTE’s notification also reinforces this requirement by stating that teachers working in unaided private schools, or those already in position as of 31st March, 2015, must qualify the TET within the stipulated period. The language of both the RTE Act and the notification leaves no room for ambiguity that even those teachers appointed prior to the RTE Act, if not qualified, must meet the TET requirement within the grace period granted. Only those appointed prior to 3rd September, 2001 in accordance with applicable recruitment rules, or those covered by specific exceptions (e.g., Special BTC or D.Ed. courses), were exempted.

169. Thus, read holistically, Section 23 of the RTE Act and the NCTE notifications together establish the TET as a compulsory qualifying criterion for all teachers appointed on or after 23rd August, 2010, and as a time-bound compliance obligation for those appointed earlier without the requisite qualifications. The sole object is to ensure uniform teaching standards across institutions imparting elementary education. Viewed in this light, the TET is not only a mandatory eligibility requirement but it is a constitutional necessity flowing from the right to quality education under Article 21A.

170. As a logical corollary to the above, it is axiomatic that those in-service teachers who aspire for promotion, irrespective of the length of their service, have to qualify the TET in order to be eligible to have their candidature considered for promotion.

K. Our findings

On perceived conflict between Articles 21A and 30(1) and the applicability of the RTE Act to minority institutions

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171. The right to education cannot be deprived of substance and rendered a right without fundamentals. It is to be noted that though Article 30 finds place in the “Cultural and Educational Rights” section of Part III, Article 21A mandating “Right to Education” for children in the age group of 6 to 14 is not placed in that section but has been consciously placed by the Parliament in the section “Right to Freedom”. Can Article 21A be treated as subservient to Article 30, or for that matter, to any other constitutional right? We do not propose to proceed for a hair-splitting analysis to answer this question. Suffice it is for the present purpose that both Article 21A and Article 30(1) occupy high constitutional position and must be interpreted harmoniously by complementing each other. In our opinion, there is no inherent conflict between Article 21A and Article 30(1). On this score, we are in respectful agreement with Pramati Educational and Cultural Trust (supra).

172. One, however, has to appreciate that most provisions of the RTE Act are regulatory in nature aimed at ensuring a safe, inclusive, and meaningful learning environment for children in the 6-14 age group. Requirements such as trained teachers, adequate infrastructure, and prohibition of corporal punishment are educational essentials, not ideological impositions. Exempting minority institutions from all these obligations, regardless of their relevance to minority character is, in our opinion, neither justified nor constitutionally required.

173. The danger of such a blanket exemption is that Article 30(1) runs the risk of being reduced to a tool for evading necessary and child-centric regulatory standards. The constitutional guarantee under Article 30(1), we are inclined to the view, was intended to preserve cultural and linguistic identity and not to provide institutions unqualified immunity from laws framed in the best interest of children.

174. In our opinion, Pramati Educational and Cultural Trust (supra) did not carry forward its own reasoning to its logical end. First, the Court acknowledged that whether the 25% quota affects the minority character depends on various factors, including the institution’s nature and the extent of impact. The relevant passage reads thus: “33. … Thus, the law as laid down by this Court is that the minority character of an aided or unaided minority institution cannot be annihilated by admission of students from communities other than the minority community which

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has established the institution, and whether such admission to any particular percentage of seats will destroy the minority character of the institution or not will depend on a large number of factors including the type of institution.” (emphasis ours)

175. However, later, Pramati Educational and Cultural Trust (supra) went on to grant a sweeping exemption to all minority institutions, aided or unaided, falling under Article 30(1) despite what the Bench acknowledged earlier. With respect, it essentially created a dichotomy between the right to education under Article 21A and the collective rights under Article 30(1). Despite insisting on harmony, Article 30(1) seems to have been treated as an unqualified trump card, instead of harmonizing both rights in a manner that minimally impairs institutional autonomy while maximally fulfilling the State’s constitutional obligations to children, particularly those from marginalized communities.

176. Incidentally, reliance placed in Pramati Educational and Cultural Trust (supra) by the Court on T.M.A. Pai Foundation (supra) was, in our opinion, could be seen as misplaced. T.M.A. Pai Foundation (supra) was about state interference in higher education, not elementary education. It is elementary education which is recognised as a fundamental right and not higher education. The objectives and stakes in primary education are vastly different. At this level, the focus is on foundational learning, inclusion, and socialization. The RTE Act itself prohibits screening procedures and merit-based filters at the elementary stage, which establishes its universal and inclusive intent. Despite what is, in T.M.A. Pai Foundation (supra), the majority of the eleven-Judge Constitution Bench clearly held that the right to administer an educational institution does not extend to the right to maladminister it [echoing the view of Hon’ble S.R. Das, CJI. in In Re: Kerala Education Bill, 1957 (supra)]. The State is well within its powers to impose general regulatory measures to ensure the proper functioning and standards of such institutions, so long as these do not alter or destroy their minority character. The relevant extracts are reproduced hereunder: “107. … Any regulation framed in the national interest must necessarily apply to all educational institutions, whether

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run by the majority or the minority. Such a limitation must necessarily be read into Article 30. The right under Article 30(1) cannot be such as to override the national interest or to prevent the Government from framing regulations in that behalf. It is, of course, true that government regulations cannot destroy the minority character of the institution or make the right to establish and administer a mere illusion; but the right under Article 30 is not so absolute as to be above the law.

122. The learned Judge then observed that the right of the minorities to administer educational institutions did not prevent the making of reasonable regulations in respect of these institutions. Recognizing that the right to administer educational institutions could not include the right to maladminister, it was held that regulations could be lawfully imposed, for the receiving of grants and recognition, while permitting the institution to retain its character as a minority institution. The regulation ‘must satisfy a dual test — the test of reasonableness, and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it’. (SCC p. 783, para 92) It was permissible for the authorities to prescribe regulations, which must be complied with, before a minority institution could seek or retain affiliation and recognition. But it was also stated that the regulations made by the authority should not impinge upon the minority character of the institution. Therefore, a balance has to be kept between the two objectives — that of ensuring the standard of excellence of the institution, and that of preserving the right of the minorities to establish and administer their educational institutions. Regulations that embraced and reconciled the two objectives could be considered to be reasonable. This, in our view, is the correct approach to the problem.

136. Decisions of this Court have held that the right to administer does not include the right to maladminister. It has also been held that the right to administer is not

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absolute, but must be subject to reasonable regulations for the benefit of the institutions as the vehicle of education, consistent with national interest. General laws of the land applicable to all persons have been held to be applicable to the minority institutions also — for example, laws relating to taxation, sanitation, social welfare, economic regulation, public order and morality.

137. It follows from the aforesaid decisions that even though the words of Article 30(1) are unqualified, this Court has held that at least certain other laws of the land pertaining to health, morality and standards of education apply. The right under Article 30(1) has, therefore, not been held to be absolute or above other provisions of the law, and we reiterate the same. By the same analogy, there is no reason why regulations or conditions concerning, generally, the welfare of students and teachers should not be made applicable in order to provide a proper academic atmosphere, as such provisions do not in any way interfere with the right of administration or management under Article 30(1).” (italics in original)

(underlining ours)

177. We, therefore, have serious doubts as to whether Pramati Educational and Cultural Trust (supra) was justified in granting a blanket exemption to minority institutions falling under Article 30(1) from the applicability of the RTE Act. In our considered opinion, the RTE Act ought to apply to all minority institutions, whether aided or unaided. As discussed, its implementation does not erode—let alone annihilate—the minority character protected under Article 30(1). On the contrary, applying the RTE Act aligns with the purposive interpretation of Article 30(1), which was never meant to shield institutions from reasonable regulation in pursuit of constitutional goals. There is no inherent conflict between Article 21A and Article 30(1); both can and must co-exist mutually.

On applicability of Section 12(1)(c), RTE Act to minority institutions

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178. Section 12(1)(c), which mandates 25% reservation for children from disadvantaged groups and weaker sections at the entry level, serves the broader purpose of social inclusion in and universalisation of elementary education. While it is true that such a provision impacts institutional autonomy to some extent, the correct question, however, is whether it results in the annihilation of the minority character of such institution. As held in Pramati Educational and Cultural Trust (supra) itself, this requires a fact-specific analysis, and not a blanket exemption.

179. Section 12(1)(c) does not alter school demographics in a way that would compromise the minority identity of minority schools. Minority institutions undisputedly admit students from outside their community; doing so under a transparent, State-guided framework does not affect any right. Moreover, Section 12(1)(c) is accompanied by a reimbursement mechanism, which ensures financial neutrality.

180. Even assuming that a conflict exists between Section 12(1)(c) and Article 30(1), owing to the perceived interference with the admission autonomy of minority institutions, such a conflict can be reconciled by reading down Section 12(1)(c) in a manner that children admitted under Section 12(1)(c) need not necessarily be from a different religious or linguistic community. Section 12(1)(c) does not mandate that 25% of children admitted under the quota must belong to a different religious or linguistic community. In fact, the requirement can be met by admitting children from the minority community itself, provided they fall within the definitions of “weaker section” or “disadvantaged group” as specified under the RTE Act.

181. Sub-clause (d) of Section 2 defines a “child belonging to a disadvantaged group” as: “a child with disability or a child belonging to the Scheduled Caste, the Scheduled Tribe, the socially and educationally backward class or such other group having disadvantage owing to social, cultural, economical, geographical, linguistic, gender or such other factor, as may be specified by the appropriate Government.” Similarly, sub-clause (e) of Section 2 defines “child belonging to weaker section” as:

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“a child belonging to such parent or guardian whose annual income is lower than the minimum limit specified by the appropriate Government.”

182. In many cases, children from the minority community itself may fall within these definitions. A Christian or a Muslim school, or a school run by a linguistic minority, for instance, may well find that a substantial number of the 25% children admitted under Section 12(1) (c) belong to their own religious or linguistic group but are otherwise socially or economically disadvantaged. Hence, the idea that Section 12(1)(c) necessarily undermines or annihilates the school’s minority character is based on an incorrect presumption. Compliance with Section 12(1)(c) need not come at the cost of eroding the minority character of the school.

183. If the 25% quota is utilised by admitting children from the minority community itself, albeit those who are economically weak or socially disadvantaged, does the question of “annihilation” really arise at all? We have no hesitation to answer the question in the negative for the simple reason that such implementation would reinforce the minority institution’s own constitutional mandate by serving the most underprivileged sections of its own community. This would not only preserve the institution’s cultural and religious identity but could also affirm its commitment to intra-community upliftment. The exemption granted in Pramati Educational and Cultural Trust (supra) on the assumption of demographic dilution fails to consider this nuance and, in our humble opinion, warrants reconsideration.

184. There is one other reason why we referred to the law laid down in M.R. Apparao (supra) at an earlier part of our opinion. The question as to whether any section of the RTE Act, apart from Section 12(1) (c), or for that matter the entirety of the RTE Act is ultra vires Article 30 does not appear from the decision to have either been directly raised before the Constitution Bench or dealt with by it. It might appear paradoxical, but the judiciary can only definitively address constitutional issues of such importance when they are directly raised.

185. Thus, ultimately, a reconsideration of Pramati Educational and Cultural Trust (supra) seems unavoidable. The minority status of an institution must be grounded in a genuine commitment to serve its community, and not merely operate as a vehicle for evading

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constitutional duties. If the object of Article 30 is to protect identity, then compliance with the RTE Act, insofar as it does not annihilate that identity, ought not to be viewed as an encroachment.

L. Summary of our views on Pramati Educational and Cultural Trust

186. Article 21A postulates primary education to be a ‘public good’ that must be accessible and available to all. The RTE Act is the State’s legislative enforcement of this fundamental right.

187. The Court in Pramati Educational and Cultural Trust (supra) focused on Section 12(1)(c) of the RTE Act and no other section and held the entirety of the RTE Act to be inapplicable to an entire section of society. Thereby, such section, so to say, has been totally excluded from the idea and notion of nation building by providing education to children at the grassroot level. Even if one were to accept that Section 12(1)(c) violated Article 30, the same could have been read down by including at least the children of the particular minority community who also belong to weaker section and disadvantaged group in the neighbourhood. To hold that the entirety of the RTE Act is inapplicable, with due respect, does not appeal to us to be reasonable and proportionate.

188. Pramati Educational and Cultural Trust (supra), ruling that RTE Act would not apply to minority institutions, in effect would offend the Article 21A right of students admitted in such institutions. They would stand denied of the various statutory entitlements and benefits that the RTE Act affords to all children between 6 and 14 years of age.

189. The RTE Act does not alter the minority character of institutions set up under Article 30. The decision in Pramati Educational and Cultural Trust (supra) seems to us to be doubtful on various counts, in holding so. The decisions in T.M.A. Pai Foundation (supra), and P. A. Inamdar (supra) hold that even the inclusion of non-minority students in a minority institution would not dilute the institution’s minority character. Pertinently, none of these decisions interpret Article 21A, which is inserted subsequently, or pertain to institutions imparting primary education.

190. Regulation in the form of norms and standards to ensure quality of education, does not dilute the minority character of an institution, and