Soon after the RTE Act was enacted, several private schools challenged its constitutional validity in the Supreme Court. The main challenge was against its provision that mandated private schools to fill 25% of the seats in Class I with children from weaker and disadvantaged groups. Petitioners argued that this imposition was an unreasonable restriction on their right to carry on a trade or business under Article 19(1)(g).
In these petitions, CLPR represented the Azim Premji Foundation as an intervenor to not only support the RTE Act but seek for a broader interpretation to include children between 0-6 years. CLPR’s intervention was allowed by the Court and in its submissions in defence of the RTE Act, CLPR argued that the ‘horizontal application of fundamental rights’ was applicable to private schools. CLPR’s arguments on the horizontal application of rights were quoted in the dissenting judgment of Justice KS Radhakrishnan in paragraph 28 as follows:
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 realise the object of the fundamental right to free and compulsory education even through non-state actors such as private schools.
A 3 judge bench of the Supreme Court comprising of Chief Justice SH Kapadia and Justices Swatanter Kumar and Justice KS Radhakrishnan upheld the constitutionality of the RTE Act, with Justice KS Radhakrishnan dissenting. The majority judgment held that Article 19(6) permitted the State to impose reasonable restrictions on the right to carry on an occupation, trade or business under Article 19(1)(g) and that the 25% reservation obligation on private unaided schools was a reasonable restriction. However, the Supreme Court carved out an exception from the application of the RTE Act and held that Section 12(1)(c) of the Act requiring unaided minority schools to admit children from disadvantaged groups violated the minority character of those institutions and hence, the RTE Act could not be applied to private unaided minority schools