Guest Post from Anup Surendranath: The Right to Education Case: Was Another Constitutional Amendment Required?

When narratives on the Supreme Court’s enforcement of socio-economic
rights are written, the judgment of the Court upholding the constitutionality
of the Right to Education Act, 2009 will probably enjoy pride of place. In this
post I explore the construction and role of legislative intent behind the 86th
Constitutional Amendment and also, whether a further constitutional amendment
was necessary to impose the 25% quota obligation on unaided non-minority
schools as discussed in Justice Radhakrishnan’s dissent in Society
for Un-Aided Private Schools of Rajasthan v. Union of India
Balancing Rights
To be clear, it is my argument that unaided schools can be
legitimately required to bear the 25% quota obligation but the method adopted
in the current instance leaves it open to constitutional challenges. The 86th
Constitutional Amendment that inserted Article 21-A into the Constitution
declares that ‘the State shall provide free and compulsory education …….in such
a manner as the State may, by law, determine’. Reading Article 21-A on its own
would suggest that there is nothing that stops the State from adopting the
model envisaged in The
Right of Children to Free and Compulsory Education Act, 2009
However, the question is whether precedents of the Supreme Court clarifying the
scope of Article 19(1)(g) in light of Article 21-A’s drafting history meant
that a further constitutional amendment was required to impose the 25% quota
obligation on unaided non-minority schools.
Drafting History of
Article 21-A
About a month before Parliament passed the 86th
Constitutional Amendment on 12th December 2002, the Supreme Court
delivered its judgment in the TMA Pai case.
Coupled with the drafting history of Article 21-A and the decision in TMA Pai, Justice Radhakrishnan has
appropriately highlighted that the strategy to impose an obligation on unaided
schools through an ordinary legislation is not on firm ground. In the TMA Pai case, an 11-judge bench of the
Supreme Court held that the State could not require unaided private colleges to
implement the State’s reservation policies or provide free education. As a
matter of constitutional interpretation, Justice Radhakrishnan is right in
arguing that Parliament must be deemed to have been aware of the decision in TMA Pai before it passed the 86th
Constitutional Amendment and it is in this context that the lack of a specific
provision in Article 21-A giving a specific power to the State to impose
obligations on private parties becomes problematic.
This is where the drafting history of Article 21-A complicates
matters. The first draft of Article 21-A that was presented before the
Chairperson on the Rajya Sabha in July 1997 contained a provision [draft
Article 21-A(3)] stating that the State could not make a law requiring unaided
institutions to provide free education. However, taking into account the
discussions that were held by a Committee of the Rajya Sabha and a report from
the Law Commission of India, this provision was dropped in due deference to the
Supreme Court’s decision in Unnikrishnan
which permitted the State to require unaided institutions to set aside up to
50% of their seats for free education. Additional Solicitor General Indira
Jaisingh argued that this drafting history must be interpreted as Parliament’s
intention to permit the State to impose obligations on unaided schools to
provide free and compulsory education.  However, TMA
over-ruled Unnikrishnan on
this point before Lok Sabha passed the 86th Constitution Amendment
Act. Therefore, the law on Article 19(1)(g) as declared by the Supreme Court
before the 86th Constitutional Amendment Act was that maximum autonomy
must be given to unaided institutions in their admission procedures. By not
inserting a specific provision permitting the State to impose obligations on
unaided institutions, the argument is that it must be deemed that Parliament
was accepting the constitutional scope of Article 19(1)(g) as it existed on
that date.
Legitimate Aims,
Unconstitutional Methods?
The question comes down to whether it is constitutionally
permissible for Parliament to over-ride the existing protection of a
constitutional provision [Article 19(1)(g)] through an ordinary legislation.
However, Chief Justice Kapadia’s response to the above argument is that the
judgment in TMA Pai did not explore
the connection between Articles 21-A and 19(1)(g) and therefore, cannot limit
the operation of the Right to Education Act. TMA Pai, the Chief Justice argues, defined the scope of Article
19(1)(g) in the context of reservations in unaided higher educational
institutions under Article 15. The Chief Justice’s argument is not entirely
convincing because it does not explain why the scope and content of the right
in question, i.e Article 19(1)(g), can be different for the same kind of institutions
for similar kind of State action. The answer might well be that the objective
of the State in the two cases are different. However, the majority judgment
does not provide an explanation as to why the difference between pursuing
inclusivity in higher education and implementing the right to primary education
should make such a qualitative difference to the content of the right protected
under Article 19(1)(g).
However, this issue raises a fascinating question about the role of
legislative intent in constitutional adjudication. While Justice Radhakrishnan
might well be correct in the construction of the legislative intent behind the
86th Constitutional Amendment, he does not answer the question why
the Supreme Court must consider such intent. While the court is yet to develop
a coherent approach to the role of legislative debates and legislative intent
in adjudication, a possible response to Justice Radhakrishnan could be that the
Supreme Court need not refer to or be bound by the legislative intent behind
the 86th Constitutional Amendment and that it would be perfectly
legitimate for the court to engage only with the text of Article 21-A in the
context of contemporary circumstances. 
Written by
Tarunabh Khaitan
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1 comment
  • There is one observation in TMA Pai that allows the Government to impose a "small number of freeships" or some such thing. Para 53 or 54 – Kapadia cites it in his judgment, but does not discuss if "small number" means 25%…