In a second round of litigation in the Supreme Court around the Right of Children to Free and Compulsory Education Act, 2009 (“RTE Act”), a group of private unaided educational institutions have filed a petition in Pramati Education Trust and Ors vs. Union of India, wherein they have challenged the 93rd and 86th Constitutional amendments which brought in Art. 15 (5) and Art. 21 A, as being violative of the basic structure of the Constitution. This petition also contends that the RTE Act is therefore unconstitutional. The main contentions of the Petitioners are:
- That Art 15 (5) affects private unaided schools’ right to run and administer an institution under Art. 19 (1) (g)
- Art 15(5) lays no compulsion on minority unaided schools, which discriminates between minority and non-minority unaided institutions.
- That Art 21 A imposes an obligation on the “State” and therefore, private unaided schools are not under any obligation to adhere to Art 21 A or the provisions of the RTE Act.
- Relying on the decision of TMA Pai and Inamdar, they contend that the there can be no state mandated reservation in admission on private institutions and reservation, if any can only be voluntary.
- In addition, the other parties that have impleaded in this petition are minority unaided institutions who are defending their right to run and administer schools under Art. 30.
CLPR intervened in this petition on behalf of the Azim Premji Foundation, opposing the petition and supporting the validity of Article 21A and the RTE Act and arguing that:
(i) There is a difference between a basic structure review and a fundamental rights review. With the former, the state action needs to be such that it destroys the basic structure of the Constitution or threatens the identity of the Constitution. Whereas for a fundamental rights review, it is a question of violation of a fundamental right and it would follow the process of review under Art. 13.
(ii) That Article 15 (5) and 21A do not violate the basic structure of the constitution.
(iii) That fundamental rights can have a horizontal application