CASE ANALYSIS ON

PRAMATI EDUCATIONAL AND CULTURAL TRUST

v. UNION OF INDIA

BY-
VAIBHAV PIMPALE
2ND Year, LL.B.
ILS LAW COLLEGE, PUNE
Mob- 8007271808
Gmail- vaibhavpimpale7@gmail.com

www.probono-india.in
BACKGROUND
The Supreme Court delivered a judgement on 12 th August 2005 in the case of P. A. Inamdar
and Others v. State of Maharashtra declaring that the State can’t impose its reservation policy
on minority and non-minority unaided private colleges, including professional colleges.
In 2008, in Ashok Kumar Thakur v. Union of India and Ors, The Court held that the validity
of Article 15(5) is constitutional and does not violate the basic structure of the Constitution. It
interpreted the scope of Article 15(5) which is applicable to State and held institutions and
aided educational institutions. However the question of scope of private educational
institutions was left open.
Therefore reference was made by a three judge bench by order in case of Society for Unaided
Private Schools of Rajasthan v. Union of India to a Constitutional Bench to determine the
validity of:
1. Article 15(5) of the Constitution inserted by the 93rd amendment of the Constitution in
2005.
2. Article 21A of the Constitution inserted by the 86 th amendment of the Constitution in
2002.

INTERNATIONAL SCENARIO
Right to Education is an human right and indispensable for the exercise of other human
rights. Every child has right to go to school and learn. Under Article 26 of Universal
Declaration of Human Rights, 1948, everyone has Right to Education. UNESCO a United
Nation Organization’s main objective is to provide quality education for all and lifelong
learning. India being a member of the United Nation should work towards improving
education system in India.

ISSUE
Whether by inserting clause (5) in Article 15 of the Constitution by the Constitution
(Ninety-third Amendment) Act, 2005, Parliament has altered the basic structure of
Constitution.

Constitution (Ninety-Third Amendment) Act, 2005

Amendment of Article 15 by insertion of clause (5):

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Article 15(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 in so far 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.

Arguments by Mr. Mukul Rohatgi on behalf of Petitioner:

1. Fundamental right to carry on any occupation under Article 19(1) (g) of the
constitution includes the right to run and administer a private unaided institution. 1
Articles 14, 19 and 21 of the Constitution constitute a golden triangle and assure the
people of this country that the promise held by the Preamble will be performed
through discipline of fundamental rights. 2
2. Constitutional Bench held that it is beyond the amending power of parliament and is
void to any law on the ground that it is inconsistent with or takes away any of the
rights conferred by Article 14 or Article19. 3 Existence of the power of Parliament to
amend the Constitution at will, with requisite voting strength, so as to make any kind
of laws that excludes Part III including the power of judicial review under Article 32
is incompatible with the basic structure of the Constitution and, therefore, such an
exercise, if challenged, has to be tested on the touchstone of basic structure as
reflected in Article 21 read with Article 14 and Article 19 of the Constitution.4
3. The imposition of reservation on unaided institutions by the ninety-third Amendment
has abrogated Article 19(1) (g) a basic feature of the Constitution and is ultra vires to
the Constitution.5

Arguments by Mr. R. F. Nariman on behalf of Petitioner

1. Article 15(5) of the Constitution is discriminatory and violative of Article 14 of the
Constitution as it fails to make a distinction between aided and unaided educational

1
T.M.A. Pai Foundation and Ors v. State of Karnataka and Ors. (2002) 8 SCC 481.
2
Minerva Mills Ltd and Ors. v. Union of India, (1980) 3 SCC 625.
3
Ibid.
4
I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1.
5
Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1.

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 institutions and treats un-equals as equals. Private educational institutions which
intend to provide better professional education cannot be forced by the State to make
admissions available on the basis of reservation policy to less meritorious candidates
and that unaided institutions, as they are not deriving any aid from State funds, should
have their own admissions following a fair, transparent and non-exploitative method
based on merit.6
2. The majority of the Judges in case of T. M. Pai Foundation have held that the private
unaided educational institutions impart education and that the State cannot take away
the choice in matters of selection of students for admission. Therefore clause (5) of
Article 15 of the Constitution is a clear violation of basic structure as it enables the
State to compel private educational institutions to give up a share of appropriation of
seats and take away freedom of private institutions as mentioned under Article 19(1)
(g).
3. Article 21 of Constitution provides for Right to Life is a compendious expression with
all rights which court must enforce because they are basic to the dignified enjoyment
of life accompanied by the right to education. 7 It is duty of every citizen as comply
with Article 51A (j) to strive towards excellence through education by studying in
educational institutions of excellence.
4. Article 15(5) has been brought as to achieve the Directive Principles of the State
Policy as well as the goals of social and economic justice set out in Preamble of the
Constitution. But majority of Judges in Minerva case has held that to achieve the
goals of Part IV of the constitution it should be done without abrogation of the means
provided for by Part III of the Constitution. Anything that destroys balance between
two shall destroy the basic structure of Constitution.
5. Therefore Article 15(5) of Constitution is violative of Articles 14, 19(1) (g) and 21
read with 51A (j) of the Constitution and is beyond the amending power of
Parliament.

Arguments by Dr. Rajeev Dhawan on behalf of Petitioner

6
P. A. Inamdar and Ors. v. State of Maharashtra and Ors., (2005) 6 SCC 537.
7
Mohini Jain v. State of Karnataka and Ors., (1992) 3 SCC 666.

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 1. To determine whether a constitutional amendment is violative of basic structure
two tests have to be applied which are identity test and width test.8
2. Under Article 19(1) (g) of the Constitution the content of right of private
education comprises the (a) charity (b) autonomy (c) voluntariness (d) non-sharing
of seats between the State Governments and the private institutions (e) co-optation
and (f) reasonableness principles.9
3. Therefore, power vested in State by clause (5) of Article 15 destroys essence of
right of private education under Article 19(1) (g) of the Constitution and is
destructive of basic structure of Constitution.

Arguments by Mr. Anil Diwan on behalf of Petitioner

1. It is the duty of the courts to be watchful for the constitutional rights of the citizens
and against any stealthy encroachments into these rights. 10. The need to protect liberty
is the greatest when the government purposes are beneficent particularly when
political pressures exercised by numerically large groups can tear the country asunder
by leaving it to the legislature to pick and choose favoured areas and favourite classes
for preferential treatment.11
2. The essence of Article 30(1) of the Constitution is to ensure equal treatment between
the majority and the minority institutions that laws of the land must apply equally to
majority institutions as well as to minority institutions and minority institutions must
be allowed to do what the non- minority institutions are permitted to do.12
3. The whole object of conferring the right on the minority under Article 30 of the
Constitution is to ensure that there will be equality between the majority and the
minority.13
4. Therefore, Article 15(5) of Constitution exempting minority educational institutions
has no rationale and is violative of concept of secularism which is a basic feature of
the Constitution.

Arguments by Mr. Mohan Parasaran on behalf of Union of India

8
M. Nagraj and Ors. v. Union of India, (2006) 8 SCC 212.
9
Pai, Supra note 1.
10
Edward Boyd and George Boyd v. United States, (1884) 116 U.S. 616.
11
Mill, Supra note 2.
12
Pai, Supra note 1.
13
The Ahmedabad St. Xavier’s College Society and Another v. State of Gujrat, (1974) 1 SCC 717.

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 1. It is held that reserving a small percentage of seats in private educational institutions,
aided or unaided, for weaker, poorer and backward sections of society did not affect
the right of private educational institutions under Article 19(1) (g) of the Constitution
in any way.14
2. In P.A. Inamdar case it was held that there is nothing in the judgment of T.M.A. Pai
Foundation case allowing the State to regulate or control admissions in the unaided
professional educational institutions so as to compel them to give up a share of the
available seats to the candidates chosen by the State or for enforcing the reservation
policy of the State.
3. Therefore, Parliament introduced clause (5) in Article 15 of Constitution providing
State to make special provisions for educational advancement of socially and
educationally backward classes of citizens or for the Scheduled Castes and the
Scheduled Tribes consistent with right of private educational institutions under Article
19(1) (g) of the Constitution.
4. In Ashok Kumar Thakur case, Court held that exclusion of minority educational
institutions from clause (5) of Article 15 of the Constitution is not violative of Article
14 of the Constitution as the minority educational institutions, by themselves, are a
separate class and their rights are protected by other constitutional provisions.
5. Therefore Constitution has given special status for minority institution and clause (5)
of Article 15 of the Constitution is not violative of right to equality.

JUDGMENT
Objects and Reasons of Constitution (Ninety-Third Amendment) Act, 2005
The object of the Act is to provide equal opportunity and greater access to higher education to
students belonging of socially and educationally backward classes of citizens or for the
Scheduled Castes or Scheduled Tribes as well as it is duty of the State under Article 46 of
Constitution. It is also considered that number of seats available in aided state educational
institutions are limited compared to private unaided institutions.
In Ashok Kumar Thakur case Court it was held that the clause (5) of Article 15 of the
Constitution is not an exception to clause (1) of Article 15, but may be taken as an enabling
provision to carry out the constitutional mandate of equality of opportunity.

14
Pai, Supra note 1.

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It is right of private educational institutions to admit students of their choice and autonomy of
administration under Article 19(1) (g) but it is clear in T. M. Pai Foundation case that this
right will not be affected or destroyed if small percentage of students belonging to weaker
and backward sections of the society were granted scholarships as element of charity under
Article 19(1) (g) of the Constitution.
In P.A. Inamdar case, Court held that, there was no power vested in State under Article 19(6)
of the Constitution to control or regulate admissions of private unaided institutions. The
reasoning of reservation policy is not regulatory measure under Article 19(g) of the
constitution and therefore State inserted clause (5) in Article 15 of the Constitution.
Applying Identity test, All freedom under Article 19(1) of the Constitution have voluntary
element and can be subject to reasonable restrictions imposed by the State by law under
clauses (2) to (6) of Article 19 of the Constitution. Therefore the identity of the right of
unaided private educational institutions under Article 19(1) (g) of the Constitution has not
been destroyed by clause (5) of Article 15 of the Constitution
Now considering width test, the plain reading of Article 15(5) of the constitution does not
affect autonomy and rights provided for private unaided institutions under Article 19(1) (g)as
defined in T.M. Pai Foundation case. Hence width of power given to State under Article
15(5) of the Constitution is within limitation to Article 19(6) of the Constitution.

Clause (5) of Article 15 of Constitution violates Right to Equality?

The distinction between a private aided educational institution and a private unaided
educational institution is that former receive aid from the State whereas latter do not receive
aid from the State.
It has to be examined whether law made by State under Article 15(5) of the Constitution has
taken into account any provision in the law to ensure compensation for private unaided
institutions for admissions made under the law. Clause (5) of Article 15 of the Constitution
does not say that such a law will not comply with the other requirements of equality as
provided in Article 14 of the Constitution. Hence treating aided private educational
institutions and unaided private educational institutions alike does not violate equality as
provided in the Article 14 of the Constitution.

Clause (5) of Article 15 of Constitution violates of right of minority

institutions?

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In St. Stephen’s case it was held that, the fact that Article 29(2) applies to minorities as well
as non-minorities does not mean to nullify special right guaranteed to minorities in Article
30(1). Denying admissions to non-minorities for the purpose of accommodating minority
students is primarily meant to preserve the minority character of the institution guaranteed
under Article 30(1).
The minority character of an aided or unaided minority institution cannot be annihilated by
admission of students from communities other than the minority community which has
established the institution, and whether such admission to any particular percentage of seats
will destroy the minority character of the institution or not will depend on a large number of
factors including the type of institution.
The Constitution Bench in Ashoka Kumar Thakur v. Union of India case held that the
minority educational institutions, by themselves, are a separate class and their rights are
protected under Article 30 of the Constitution, and, therefore, the exclusion of minority
educational institutions from Article 15(5) is not violative of Article 14 of the Constitution.

Clause (5) ofArticle15 of the Constitution violates concept of Secularism

Secularism as defined in the Merriam-Webster dictionary is “indifference to, or rejection
or exclusion of, religion and religious considerations.”
The Preamble of the Constitution read in particular with Article 15 to 28 emphases this aspect
and indicates that the concept of secularism embodied in the constitutional scheme is a creed
adopted by the Indian people. Hence, secularism is no doubt a basic feature of the
Constitution.15
In T.M.A. Pai Foundation case it is held that the essence of secularism in India is the
recognition and preservation of the different types of people with diverse languages and
different beliefs and Articles 29 and 30 seek to preserve such differences and at the same time
unite the people of India to form one strong nation. Therefore, by excluding the minority
institutions referred to in clause (1) of Article 30 of the Constitution, the secular character of
India is maintained and not destroyed.

Clause (5) of Article 15 of the Constitution violates Fundamental right

under Article 21 read with Article 51A (j) of the Constitution?

15
Dr. M. Ismail Faruqui v. Union of India, (1994) 6 SCC 360.

8
The fundamental right of every person under Article 21 and duty under Article 51A (j) to
strive towards excellence will not be possible if private educational institutions are allowed to
admit students from amongst backward classes of citizens or Scheduled Castes or Scheduled
Tribes is not founded on the experience of educational institutions in India. Moreover, the
contention is itself contrary to the Preamble of the Constitution. The goals of fraternity,
equality and integrity of the nation cannot be achieved unless the backward classes of citizens
and Scheduled Castes and Scheduled Tribes have not advanced and integrated into the
mainstream of the nation. Therefore the clause (5) of the Article 15 of the Constitution does
not violate the right under Article 21 of the Constitution.

ISSUE
Whether by inserting clause Article 21A of the Constitution by the Constitution
(Eighty-Sixth Amendment) Act, 2002, Parliament has altered the basic structure of
Constitution.

The Constitution (Eighty-Sixth Amendment) Act, 2002

 Insertion of new Article 21A- Right to Education- 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.
 Substitution of new article for article 45- State shall endeavour to provide early
childhood care and education for all children until they complete the age of six years.
 Amendment of article 51A by insertion of clause (k)- who is a parent or guardian to
provide opportunities for education to his child or, as the case may be, ward between
the age of six and fourteen years.

Arguments by Mr. Mukul Rohatgi on behalf of Petitioner

1. Article 21A of the Constitution creates obligation only upon the State and its
instrumentalities as defined in Article 12 of the Constitution and does not cast any
obligation on a private unaided educational institution.
2. If Article 21A is interpreted to include the private unaided educational institutions
within its sweep then it would abrogate the right under Article 19(1) (g) of the

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 Constitution to establish and administer private educational institutions which is a
basic feature of the Constitution.

Arguments by Mr. R. F. Nariman on behalf of Petitioner

1. The word State used in Article 21A of the Constitution would mean the State as
defined in Article 12 of the Constitution and therefore would include the Government
and Parliament of India and the Government and the Legislature of each of the States
and all local or other authorities within the territory of India or under the control of
the Government of India.
2. The fundamental right of personal liberty under Article 21 of the Constitution is
available against only the State and not against private individuals. 16 Therefore, the
word State in Article 21A of the Constitution would not include private unaided
educational institutions or private individuals.
3. The Eighty-Sixth Amendment Act, 2002, deleted Article 45 which provided that the
State shall endeavour to provide, within a period of ten years from the commencement
of the Constitution, for free and compulsory education for all children until they
complete the age of fourteen years and inserted Article 21A. When read together to
mean that the State could by law pass on its obligation to private unaided schools
which would abrogate their fundamental right under Article 19(1) (g) of the
Constitution as mentioned in T. M. Pai Foundation case.
4. Objects and Reasons of the 2009 Act stated that the 2009 Act is pursuant to Article
21A of the Constitution and there is no reference to clause (5) of Article 15 of
Constitution. Thus validity of the provisions of the Article 21A has to be tested
accordingly and is violative of the right of private unaided schools under Article 19(1)
(g) of the Constitution.

Arguments by Mr. Ajmal Khan and T. R. Andhyarujina on behalf of

Petitioner
1. The State while making the law cannot be allowed to encroach on this right of the
minority institutions under Article 30(1) of the Constitution. The admission of children
other than those of the minority community which establish the school cannot be

16
Smt. Vidya Verma v. Dr. Shiv Narain Verma, AIR 1956 SC 108.

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 forced upon the minority institutions, whether aided or unaided. If made applicable to
minority schools will be ultra vires Article 30(1) of the Constitution.
2. According to sub- section (4) of Section 1 of the 2009 Act provides that subject to the
provisions of articles 29 and 30 of the Constitution, the provisions of the Act shall
apply to conferment of rights on children to free and compulsory education. Hence
2009 Act is ultra vires Article 30(1) of the Constitution.

Arguments by Mr. K.V. Vishwanathan on behalf of Union of India

1. Objects and Reasons of the Bill stated that goal set out in Article 45 of Constitution
could not be achieved even after 50 years of adoption of provisions. In order to
achieve this goal Article 21A is inserted in the Constitution and in accordance with it
2009 Act has been enacted by the State which provides the manner provided in
Section 12(1) (c) of the Act.
2. Private educational institutions are performing a function akin to the function of the
State and applying the functional test private educational institutions are also State
within the meaning of Article 12 of Constitution.
3. In T.M. Pai Foundation case it is held that a small percentage of seats may be filled up
to take care of poorer and backward sections of the society and therefore Section
12(1) (c) is provided in 2009 Act and is no ultra vires Article 19(1) (g) of the
Constitution.
4. Regarding minority institutions under Article 30 (1) of the 2009 Act they have equal
status but this Act will not apply to unaided minority schools but will apply to aided
minority schools.17
5. Therefore, accordingly the 2009 Act was amended in 2012 so as to provide in sub-
section (4) of Section 1 of the 2009 Act that subject to the provisions of Articles 29
and 30 of the Constitution, the provisions of the 2009 Act shall apply to conferment of
rights on children to free and compulsory education.

JUDGMENT
Objects and Reasons of the Constitution (Eighty-Sixth Amendment) Act,
2002

17
Unaided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 102.

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The Constitution of India in a Directive Principle contained in Article 45 could not achieve
goal even after 50 years of promulgation of the Constitution. The Government of India after
taking strenuous efforts to fulfil this mandate the ultimate goal of providing universal and
quality education still remains unfulfilled. In order to fulfil this goal Article 21A is inserted as
part to Fundamental Rights of the Constitution.

Article 21A of Constitution violates right of private institutions under

Article 19(1)(g) of Constitution?
The word State in Article 21A means the State which can make the law. However Article
21A states that the State shall by law determine the manner in which it will discharge its
constitutional obligations. Thus a new power was vested in the State to enable the State to
discharge this constitutional obligation by making a law.
In discharging constitutional obligations Article 21A has to be harmoniously construed with
Article 19(1) (g) and Article 30(1) of the Constitution. The rule of construction is well settled
that when there are in an enactment two provisions which cannot be reconciled with each
other, they should be so interpreted that if possible, effect could be given to both.
While discussing the validity of clause (5) of Article 15 of Constitution the Court has held
that that there is an element of voluntariness of all the freedoms under Article 19(1) of
Constitution, but the voluntariness in these freedoms can be subjected to law made under the
powers available to the State under clause (2) to (6) of Article 19 of Constitution. The
admission of a small percentage of students belonging to weaker sections of the society may
be permissible and would not be inconsistent with the rights under Articles 19(1) (g) of the
Constitution.

Article 21A of Constitution violates rights of minority institutions?

In 2009 Act, under Section 12(1) (c) read with Section 2(n) (iv) of the Act, an unaided school
is required to admit in class I at least twenty five percent of the strength of that class, children
belonging to weaker section disadvantaged group in the neighbourhood and provide free and
compulsory elementary education till its completion
Further Section 12 (2) of the 2009 Act provides that such school shall be reimbursed
expenditure so incurred by it in manner as maybe prescribed. Thus ultimately it is state which
is funding the expenses of free and compulsory education of the children. Therefore Article

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21A of the Constitution and the 2009 Act does not violate the right of non-minority private
schools under Article 19(1) (g) of Constitution.
Parliament cannot in exercise of its amending power abrogate the rights of minorities. 18
Under Article 30(1) of Constitution special rights are provided to minorities. Thus, the power
under Article 21A of Constitution vesting in the State cannot extend to making any law
which will abrogate the right of the minorities to establish and administer schools of their
choice.
In 2009 Act, Section 12(1) (b) read with Section 2(n) (iii) of Act provides Act is applicable to
aided schools and Section 12(1) (c) read with Section 2(n) (iv) provides Act is applicable to
unaided schools to admit twenty five percent of the strength of class I children belonging to
weaker sections and disadvantaged groups in the neighbourhood.
While discussing the validity of clause (5) of Article 15 of Constitution, we have held that
character and rights of minority institutions cannot be destroyed.
Therefore, the 2009 Act insofar it is made applicable to minority schools referred in clause
(1) of Article 30 of Constitution is ultra vires the Constitution.

OVERVIEW OF JUDGEMENT
The Judgement is landmark Judgement in field of education. Although leaving minority
institutions from ambit of Article 21A is inconsistent with having equal opportunity for all.
The same contention was later changed in case of Sobha George v. State of Kerala by
applying Article 21A to minority institutions. Presently law is unclear regarding overall
position due to different rulings. Therefore, it is the duty of Supreme Court to re-examine the
issues and lay down clear binding law for all to follow.

REFERENCES
1. T.M.A. Pai Foundation and Ors v. State of Karnataka and Ors. (2002) 8 SCC 481.
2. Minerva Mills Ltd and Ors. v. Union of India, (1980) 3 SCC 625.
3. I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1.
4. Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1.
5. P. A. Inamdar and Ors. v. State of Maharashtra and Ors., (2005) 6 SCC 537.
6. Mohini Jain v. State of Karnataka and Ors., (1992) 3 SCC 666.
7. M. Nagraj and Ors. v. Union of India, (2006) 8 SCC 212.
18
Keshavandana Bharti v. State of Kerala, (1973) 4 SCC 225.

13
 8. Edward Boyd and George Boyd v. United States, (1884) 116 U.S. 616.
9. Ahmedabad St. Xavier’s College Society and Another v. State of Gujrat, (1974) 1
SCC 717.
10. Dr. M. Ismail Faruqui v. Union of India, (1994) 6 SCC 360.
11. Smt. Vidya Verma v. Dr. Shiv Narain Verma, AIR 1956 SC 108.
12. Unaided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 102.
13. Keshavandana Bharti v. State of Kerala, (1973) 4 SCC 225.

ABOUT THE AUTHOR

Vaibhav Pimpale is pursuing LL.B. from ILS Law College, Pune. He is currently ILS 1 st
Rank Holder in 2nd Year and active participant of legal competitions. He has interest in
Intellectual Property Rights, Constitutional Law and RERA. By being part of Team ProBono,
he is contributing to society through legal aid.

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