New Delhi: A
constitutional bench of the Supreme Court will now hear the
challenge to Article 15(5) of the constitution, which places an
obligation on unaided private schools to reserve 25 percent seats
for students from socially and economically weaker sections of
The provision, under the Right to Education Act (RTE), was
challenged by managements of private schools in various states.
Hearing the plea, the apex court bench of Justice K.S.
Radhakrishnan and Justice Dipak Misra Friday directed court
registry to place the matter before the Chief Justice for listing
before an appropriate bench.
The directive was made after a submission by senior counsel Mukul
Rohtagi, assisted by Ankit Goyal, representing the Karnataka-based
Pramati Educational and Cultural Trust and others, that a larger
bench hear the matter in view of the court's earlier Sep 6, 2010
Hearing a petition by the Society for Unaided Schools of
Rajasthan, the apex court bench of Chief Justice S.H. Kapadia
(since retired), Justice K.S.Radhakrishnan and Justice Swatanter
Kumar (also retired) had said Sep 6, 2010: "Since the challenge
involved raises the question as to the validity of Articles 15(5)
and 21-A of the Constitution of India, we are of the view that the
matter needs to be referred to the constitution bench of five
The apex court Oct 8, 2012, issued notice to the centre on a
petition that sought equal status for unaided educational
institutions at par with unaided minority institutions in
reserving 25 percent seats for socially and economically backward
The petition contended that Article 15 (5) was ultra vires of the
basic structure of the constitution as it discriminates between
two similarly placed category of educational institutions on the
basis of their minority and non-minority status.
Clause 5 of the Article 15 says "(5) Nothing in this Article or in
sub-clause (g) of clause (1) of Article 19 shall prevent the State
from making any special provision, by law, for the advancement of
any socially and educationally backward classes of citizens or for
the Scheduled Castes or the Scheduled Tribes insofar as such
special provisions relate to their admission to educational
institutions including private educational institutions, whether
aided or unaided by the State, other than the minority educational
institutions referred to in clause (1) of Article 30."
Article 19(1)(g) in the constitution provides for freedom to
practise any profession, occupation, trade or business.
The petition has also contested the validity of the Article 21-A
which says that "the State shall provide free and compulsory
education to all children of the age of six to fourteen years in
such manner as the State may, by law, determine."
Seeking the examination of the power of Article 15(5), the
petition has said that the constitution envisages equal status for
minority and majority, and it would be against the schema of the
constitution to put minority on a higher pedestal.
The petition said that Article 30, which provides for the right of
minorities to establish and administer educational institutions,
was in the nature of protecting their rights and did not confer
any right beyond the those available to non-minorities (majority
On April 12, 2012, an apex court upheld the constitutional
validity of the Right to Education (RTE) Act that mandates unaided
private schools to keep 25 percent seats for students from
economically and socially weaker sections of society. The petition
seeks to challenge that verdict.
The then Chief Justice S.H. Kapadia and Justice Swatanter Kumar,
by majority judgment, upheld the constitutional validity of
Section 12(1)(C) of the RTE Act that provides that seat quota.
While upholding the Section 12(1)(C) of the RTE Act, the majority
judgment exempted unaided minority educational institutions from
such quota but held back same exemption from un-aided non-minority
However, in a separate judgment Justice K.S. Radhakrishnan held
that the mandate under the RTE Act providing for reservation of
seats was not constitutionally valid, and thus the unaided
schools, whetehr majority or minority, could not be compelled to
earmark 25 percent seats in their institutions.
Justice Radhakrishnan read down the Section 12(1)(C) of the RTE
Act in respect of the unaided non-minority and minority
institutions, and held that it can be given effect to "only on the
principles of voluntariness, autonomy and consensus and not on
compulsion or threat of non-recognition or non-affiliation."