Un-aided P School of Rajasthan Vs UOI SC of India on 12.04.12

A child who is denied right to access education is not only deprived of his right to live with dignity, he is also deprived of his right to freedom of speech and expression enshrined in Article 19(1)(a).

the controversy in T.M.A. Pai Foundation arose in the light of the scheme framed in Unni Krishnan's case and the judgment in P.A. Inamdar was almost a sequel to the directions in Islamic Academy of Education v. State of Karnataka [(2003) 6 SCC 697] in which the entire focus was Institution centric and not child centric and that too in the context of higher education and professional education where the level of merit and excellence have to be given a different weightage than the one we have to give in the case of Universal Elementary Education for strengthening social fabric of democracy through provision of equal opportunities to all and for children of weaker section and disadvantaged group who seek admission not to higher education or professional courses but to Class I.

Is the 2009 Act intended to apply to unaided minority schools? In answer to the above question, it is important to note that in the case of P.A. Inamdar, this Court held that there shall be no reservations in private unaided colleges and that in that regard there shall be no difference between the minority and non-minority institutions. However, by the Constitution (Ninety-third Amendment) Act, 2005, Article 15 is amended. It is given Article 15(5). The result is that P.A. Inamdar has been overruled on two counts: (a) whereas this Court in P.A. Inamdar had stated that there shall be no reservation in private unaided colleges, the Amendment decreed that there shall be reservations; (b) whereas this Court in P.A. Inamdar had said that there shall be no difference between the unaided minority and nonminority institutions, the Amendment decreed that there shall be a difference. Article 15(5) is an enabling provision and it is for the respective States either to enact a legislation or issue an executive instruction providing for reservation except in the case of minority educational institutions referred to in Article 30(1). The intention of the Parliament is that the minority educational institution referred to in Article 30(1) is a separate category of institutions which needs protection of Article 30(1) and viewed in that light we are of the view that unaided minority school(s) needs special protection under Article 30(1). Article 30(1) is not conditional as Article 19(1)(g).
Right of Children to Free and Compulsory Education Act, 2009 is constitutionally valid and shall apply to the following: (i) a school established, owned or controlled by the appropriate Government or a local authority; (ii) an aided school including aided minority school(s) receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority; (iii) a school belonging to specified category; and (iv) an unaided non-minority school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority. However, the said 2009 Act and in particular Sections 12(1)(c) and 18(3) infringes the fundamental freedom guaranteed to unaided minority schools under Article 30(1).