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.
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 Pai 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.