Laying the Foundations of a Solidaristic Welfare State: The Supreme Court on the Right to Education

May 7, 2012 | Jayna Kothari

On April 12 2012, the Supreme Court in Society for Unaided Private Schools of Rajasthan v Union of India upheld the constitutional validity of The Right of Children to Free and Compulsory Education Act 2009. Several private schools (aided, unaided, minority and non-minority) had challenged the constitutionality of the Act on two major grounds: first, that the section 12(1)(c) obligation on private unaided schools to provide free and compulsory education to children from weaker and disadvantaged sections up to 25% of the class strength and various provisions of the Act which imposed infrastructural and regulatory requirements on the schools violated their Article 19(1)(g) constitutional right to freedom of occupation. Secondly, minority schools argued that the Act violated their special constitutional rights in Article 30(1) to establish and administer educational institutions. The Azim Premji Foundation, aided by the Centre for Law and Policy Research, intervened in this litigation to defend the constitutionality of the Act with new constitutional arguments supported by empirical research studies. Chief Justice Kapadia speaking for the majority upheld the constitutional validity of the Act so far as it applies to private non-minority schools and aided minority schools. However, it held that the entire Act of 2009, including the section 12(1)(c) quota, would not apply to unaided minority schools. Justice Radhakrishnan’s dissent held the Act to be uniformly applicable to minority and non-minority schools but read down section 12(1)(c) so far as it imposed a positive obligation of providing free and compulsory education on all private unaided schools. In this brief opinion we clarify the reasoning of the court; take note of the significant challenges to the achievement of the objectives of the Act and highlight the capacity of this judgment to shape the provision of welfare in education and beyond.


The divided opinion of the court is the result of the relative priority accorded to apparently conflicting rights and values in the Constitution. The majority concludes that Article 21A right to education, derived from the Article 21 guarantee of the right to life, subordinates the Article 19(1)(g) freedom of occupation. The regulatory power of the state to impose reasonable restrictions under Article 19(6) draws support from the directive principles of state policy that mandate universal education and protection of children’s interests. However, the majority concludes that the interests of minority groups protected under Article 30(1) read with the bar on reservation in Article 15(5) are absolute in character and trumps the Article 21A right to education. If the Article 21A right to education may subordinate Article 19 civil rights and freedoms why does it not subordinate minority rights under Article 30(1)? The majority does not offer a convincing justification for this view and its reliance on precedent is inconclusive. The minority opinion develops a more coherent account of the balance between rights. It concludes that Article 21A right to education subordinates both Article 19(1)(g) freedoms of school administrators and Article 30(1) freedoms of minority school administrators. However, it concludes that Article 21A right to education is exclusively a State obligation which it cannot impose as positive obligations on private schools. Hence, as Intervenors we prefer the majority view on the capacity of the State to impose positive obligations on private actors to promote welfare and the minority view on the balance between rights where Article 21A right to education subordinates minority and non-minority school administrators freedoms.


With this, our attention now shifts to the implementation of the Act. The Act has been criticized for its lack of focus on securing quality education with a regulatory emphasis on measuring inputs rather than outputs. The majority opinion opens a small window to redress this imbalance in the Act as it casts a duty on State governments to ensure quality education and to “re-organise… (their) financial outflow…by weeding out the non-performing or under-performing or non-compliance schools receiving grant-in- aid…”. Hence, we may direct State governments implementation of the Act to ensure quality education. Secondly, the exemptions under the Act need to be closely monitored. Minority schools are exempted from the application of the entire Act and State governments need to develop a systematic rigorous method of identification of minority schools entitled to this benefit. The judgment calls upon State governments to frame rules to govern boarding schools – a category not defined by the Act. The manner in which these rules are framed will determine the scope and nature of this exemption.

The 2009 Act institutes a universal legal commitment to provide free and compulsory education to all children between 6-14 years of age. This legislation initiates a new approach to social welfare in two important ways: first, it creates an universal entitlement does not rely on targeting particular social groups marked by ethnic, religious or other identity markers. Secondly, it integrates the efforts of the state and non-state sector to provide for welfare in order to build an inclusive and solidaristic society. The true significance of the Supreme Court’s decision upholding the constitutionality of the Act in both these respects is that it paves the way for similar reforms in allied fields like health and housing.

Jayna Kothari

Executive Director

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