A Full Bench of the Supreme Court of India delivered the long awaited judgment on the constitutionality of the Right of Children to Free and Compulsory Education Act 2009. The case arose out of a series of petitions filed by several private aided and unaided schools, challenging the Act and specifically Section 12(1)(c) that mandated private unaided schools to admit 25% of their Class I strength with children from weaker and disadvantaged sections and provide them with free education. The team of CLPR represented the Azim Premji Foundation as an Intervenor in this litigation, and submitted a detailed brief on its behalf. The arguments on behalf of the Azim Premji Foundation in the Supreme Court were made by Jayna Kothari and Menaka Guruswamy. An earlier post details the issues debated before the Court and CLPR’s contentions on behalf of Azim Premji Foundation.
One of the important arguments made by CLPR in its written submissions to the Court was about the horizontal application of fundamental rights. The horizontality of rights concept basically means that non-state private actors are also covered by fundamental rights obligations. This issue is really the core of the RTE Act, which mandates that all private unaided schools are also required to take in 25% of children from disadvantaged groups and are required to follow the basic norms and standards set by the State for all schools. Although in India we have never had a direct application of fundamental and civil rights applying to non-State actors, the debate of horizontality of rights is not new. There are several articles in Part III which contains the fundamental rights which directly apply to non-State actors as well. This argument framed conceptually by CLPR in its brief, and was explicitly quoted by the Supreme Court in the dissenting judgement of Justice Radhakrishnan in Paragraph 38:
Mrs. Menaka Guruswamy and Mrs. Jayna Kothari, appearing for the intervener namely The Azim Premji Foundation, in I.A. No. 7 in W.P. (C) No. 95/2010, apart from other contentions, submitted that Article 21A calls for horizontal application of sanction on state actors so as to give effect to the fundamental rights guaranteed to the people. Learned counsels submitted that Sections 15(2), 17, 18, 23 and 24 of the Constitution expressly impose constitutional obligations on non-state actors and incorporate the notion of horizontal application of rights. Reference was also made to the judgment of this Court in People’s Union for Democratic Rights and Others v. Union of India and Others [(1982) 3 SCC 235] and submitted that many of the fundamental rights enacted in Part III, such as Articles 17, 23 and 24, among others, would operate not only against the State but also against other private persons.
Reference was also made to the judgment of this Court Vishaka and Others v. State of Rajasthan [(1997) 6 SCC 241], in which this Court held that all employees, both public and private, would take positive steps not to infringe the fundamental rights guaranteed to female employees under Articles 14, 15, 21 and 19(1)(g) of the Constitution. Reference was also made to Article 15(3) and submitted that the Constitution permits the State to make special provisions regarding children. Further, it was also contended that Articles 21A and 15(3) provide the State with Constitutional instruments to realize the object of the fundamental right to free and compulsory education even through non-state actors such as private schools.
The argument on the horizontal application of rights is not really a new argument, as several other jurisidtcions have made discrimination by non-state actors a civil liability,. For example the US Civil Rights Act 1964, Disability Discrimination Act in the UK, the UK Race Relations Act 1976 among others. What is fascinating about the RTE Act and the recent judgment is that not only does it affirm the horizontality of rights argument as the Court recognises that private schools are also required to comply with the fundamental rights obligation to provide the right to education, but that it has used this argument for the horizontal application of social rights and not merely civil and political rights. The Indian Supreme Court has taken this argument much forward than other jurisdictions to hold that private actors are not merely required to be perform negative duties of restraint from infringing on fundamental rights, but also to positively provide socio-economic rights guarantees such as the right to education.