The facts of this case were that the constitution bench, comprising

five judges, was called upon through a reference order made in the
case of Society for Unaided Private schools of Rajasthan v. Union of
India & another, by a three-judge bench of the Supreme court of
India. The essence of this order was that the three-judge bench
referred the case for the holding of the decision on the validity of
clause 5 of Article 15 of the Indian Constitution, which was inserted
into the Indian Constitution through the ninety-third constitutional
amendment act of 2002.

Along with the same, it was also asked to decide the validity of the
insertion of Article 21A, which was previously inserted through the
Eighty-sixth constitutional amendment act of 2002. The issues framed
in the present case are as follows.

Issues:

Issues framed by the Supreme Court of India are as follows:

SSUES FOR
CONSIDERATION:
1. Whether by inserting Clause
(5) in Article 15 of the
Constitution by the Constitution
(Ninetythird Amendment) Act,
2005, Parliament has altered the
basic structure or framework
of the Constitution and is it
violative of article 19(1)(g) and
article 14.
2. Whether by inserting Article
21A of the Constitution by the
Constitution (Eighty-Sixth
Amendment) Act, 2002,
Parliament has altered the basic
structure or framework of the
Constitution and whether word
‘State’ in article includes private
educational institutions.
SSUES FOR
CONSIDERATION:
1. Whether by inserting Clause
(5) in Article 15 of the
Constitution by the Constitution
(Ninetythird Amendment) Act,
2005, Parliament has altered the
basic structure or framework
of the Constitution and is it
violative of article 19(1)(g) and
article 14.
2. Whether by inserting Article
21A of the Constitution by the
Constitution (Eighty-Sixth
Amendment) Act, 2002,
Parliament has altered the basic
structure or framework of the
Constitution and whether word
‘State’ in article includes private
educational institutions.
1. Whether by inserting Clause
(5) in Article 15 of the
Constitution by the Constitution
(Ninetythird Amendment) Act,
2005, Parliament has altered the
basic structure or framework
of the Constitution and is it
violative of article 19(1)(g) and
article 14.
2. Whether by inserting Article
21A of the Constitution by the
Constitution (Eighty-Sixth
Amendment) Act, 2002,
Parliament has altered the basic
structure or framework of the
Constitution and whether word
‘State’ in article includes private
educational institutions.
Firstly, whether the insertion of clause 5 to article 15 of the Indian
Constitution through the Ninety-Third Constitutional amendment act
of 2005 has altered the basic structure of the Indian Constitution or
not?

Secondly, whether the insertion of Article 21A to the Constitution

through the eighty-sixth constitutional amendment has altered the
basic framework or the basic structure of the Indian Constitution or
not?

Laws involved in the case:

 Article 14 of the Indian Constitution – Right to equality

 Article 15 clause 5 of the Indian Constitution – state’s power to
make reservations in the private educational institutions.
 Article 21A of the Indian Constitution deals with the right to
free and compulsory education for children between 6-14 years
of age.

Decision:

The Supreme court of India has decided the case as follows.

 Firstly, the court looked into two differing views that are made
on the application of article 15(5) of the Indian Constitution in
the case of T.M.A. Pai and P.A. Inamdar case. In the former
case, the Supreme court allowed a smaller percentage of seats to
be reserved in the private institutions for the people from poorer
sections of the society, and such allocation shall not affect the
rights of such institutions under article 19(1)(g) of the Indian
Constitution.
 Secondly and most importantly, the court compared the new
power of the state that has been provided by the eighty-sixth
constitutional amendment act to that of the right of the private
unaided institution under article 19 of the Constitution. The
 court observed that the amendment inducing the enactment of
Article 21A of the Indian Constitution embodies the goal that
has been contemplated in article 45 under the directive
principles of the Indian Constitution and ensures what has been
not achieved for fifty years on free and compulsory education.
By stating this, the court also observed that if any law has been
enacted by the state for this particular purpose, that is the power
to provide a few seats for the education of poorer and weaker
children in private unaided schools, then such cannot be seen as
a violation of the rights of the private unaided institution under
article 19(1)(g) of the Constitution.

SSUES FOR
CONSIDERATION:
1. Whether by inserting Clause
(5) in Article 15 of the
Constitution by the Constitution
(Ninetythird Amendment) Act,
2005, Parliament has altered the
basic structure or framework
of the Constitution and is it
violative of article 19(1)(g) and
article 14.
2. Whether by inserting Article
21A of the Constitution by the
Constitution (Eighty-Sixth
Amendment) Act, 2002,
Parliament has altered the basic
structure or framework of the
Constitution and whether word
‘State’ in article includes private
educational institutions.
SSUES FOR
CONSIDERATION:
1. Whether by inserting Clause
(5) in Article 15 of the
Constitution by the Constitution
(Ninetythird Amendment) Act,
2005, Parliament has altered the
basic structure or framework
of the Constitution and is it
violative of article 19(1)(g) and
article 14.
2. Whether by inserting Article
21A of the Constitution by the
Constitution (Eighty-Sixth
Amendment) Act, 2002,
Parliament has altered the basic
structure or framework of the
Constitution and whether word
‘State’ in article includes private
educational institutions.
SSUES FOR
CONSIDERATION:
1. Whether by inserting Clause
(5) in Article 15 of the
Constitution by the Constitution
(Ninetythird Amendment) Act,
2005, Parliament has altered the
basic structure or framework
of the Constitution and is it
violative of article 19(1)(g) and
article 14.
2. Whether by inserting Article
21A of the Constitution by the
Constitution (Eighty-Sixth
Amendment) Act, 2002,
Parliament has altered the basic
structure or framework of the
Constitution and whether word
‘State’ in article includes private
educational institutions.
 ARGUMENTS ADVANCED:

Issue 1-

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 or framework of the Constitution and is it
violative of article 19(1)(g) and article 14 1) No, in the case of
Ashoka Kumar Thakur v. Union of India it was stated that Clause (5)
of Article 15 of the Constitution is only an enabling provision
empowering the State to make a special provision, by law, for the
advancement of socially and educationally backward classes of
citizens or for the Scheduled Castes and the Scheduled Tribes and as
such special provisions relate to their admission to educational
institutions including private educational institutions. 2) It was also
clear from the judgment of the eleven Judge Bench of this Court in
T.M.A. Pai Foundation that reserving a small percentage of seats in
private educational institutions, aided or unaided, for weaker, poorer
and backward sections of society did not in any way affect the right of
private educational institutions under Article 19(1)(g) of the
Constitution. 3) This is clear from the Statement of Objects and
Reasons of the Bill, which after enactment became the Constitution
(Ninety-Third Amendment) Act, 2005 extracted hereinbelow: 1.
Greater access to higher education including professional education to
a larger number of students belonging to the socially and
educationally backward classes of citizens or for the Scheduled Castes
and Scheduled Tribes has been a matter of major concern. At present,
the number of seats available in aided or State maintained institutions,
particularly in respect of professional education, is limited in
comparison to those in private unaided institutions. 2. It is laid down
in Article 46, as a directive principle of State policy, that the State
shall promote with special care the educational and economic interests
of the weaker sections of the people and protect them from social
injustice. To promote the educational advancement of the socially and
educationally backward classes of citizens or of the Scheduled Castes
and Scheduled Tribes in matters of admission of students belonging to
these categories in unaided educational institutions, other than the
minority educational institutions referred to in Clause (1) of Article 30
of the Constitution, it is proposed to amplify Article 15. 3. The Bill
seeks to achieve the above objects. 4) Clause (5) of Article 15
introduced by the constitutional amendment is consistent with the
right to establish and administer the private educational institutions
Under Article 19(1)(g) of the Constitution as interpreted by T.M.A.
Pai Foundation(supra) and, therefore, does not violate the right Under
Article 19(1)(g) of the Constitution. 5) Moreover, The Minority
institutions referred to in Article 30 of the Constitution have been
excluded from the purview of Clause (5) of Article 15 of the
Constitution because the Constitution has given a special status to
minority institutions. 6) In the case of Ashoka Kumar Thakur v.
Union of India, this Court has 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
10 | P a g e separate class and their rights are protected by other
constitutional provisions. It is submitted that the argument that Clause
(5) of Article 15 of the Constitution is violative of equality clause in
Article 14 of the Constitution is therefore misconceived

11 | P a g e
2) Above states that the goal
set out in Article 45 of the
Constitution of providing free and
compulsory education for
children up to the age of 14 years
could not be achieved even after
50
years of adoption of the provision
and in order to fulfil this goal, it
was felt that a new provision in
the Constitution should be
inserted as Article 21A providing
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.
3) In accordance with
Article 21A of the Constitution,
the 2009 Act has been enacted
which
provides the manner in which
such free and compulsory
education for children up to the
age of 14
years shall be provided by the
State and it provides in Section
12(1)(c) that private unaided
schools
shall admit in Class I from
amongst weaker sections of
society and from disadvantaged
groups at
least twentyfive per cent of the
strength of the class and provide
free and compulsory education.
4) Private educational
institutions cannot have any
grievance in this regard because
they are
performing a function akin to the
function of the State. He
submitted that applying the
functional
test private educational
institutions are also State within
the meaning of Article 12 of the
Constitution as stated in R.D
Shetty v. International Airport
Authority of India.
• R.D Shetty v. International
Airport Authority of India (1979)
– Issues raised that International
Airport Authority formulated
from Airport Authority under
Parliamentary Act falls under the
definition of the state. Although
Parliament has the authority/
power to appoint the
chairman, other members, the
entire capital amount for the
establishment of IAA was
invested by the central
government. The Supreme Court
held that even if private bodies
exist but if the usual degree of
control is within the government.
And the government has
extraordinary financial assistance,
therefore such an instrument/
agency (Private Bodies will
fall under the definition of state
under article 12 of the Indian
Constitution).
5) Therefore, the argument
of Mr. Nariman that the
obligation of providing free and
compulsory education to all
children of the age of six to
fourteen years cannot be passed
on by the
State to private educational
institutions has no substance.
6) It is submitted that in
paragraph 53 of the judgment in
T.M.A. Pai Foundation this Court
has
held that while private unaided
educational institutions have the
right to admit students of their
choice, admission of a small
percentage of students belonging
to weaker sections of the society
by
granting them freeships or
scholarships, if not granted by the
Government should also be done.
Further in paragraph 68 of
T.M.A. Pai Foundation, this
Court has also held that a small
percentage of
seats may also be filled up to take
care of poorer and backward
sections of the society
11 | P a g e
2) Above states that the goal
set out in Article 45 of the
Constitution of providing free and
compulsory education for
children up to the age of 14 years
could not be achieved even after
50
years of adoption of the provision
and in order to fulfil this goal, it
was felt that a new provision in
the Constitution should be
inserted as Article 21A providing
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.
3) In accordance with
Article 21A of the Constitution,
the 2009 Act has been enacted
which
provides the manner in which
such free and compulsory
education for children up to the
age of 14
years shall be provided by the
State and it provides in Section
12(1)(c) that private unaided
schools
shall admit in Class I from
amongst weaker sections of
society and from disadvantaged
groups at
least twentyfive per cent of the
strength of the class and provide
free and compulsory education.
4) Private educational
institutions cannot have any
grievance in this regard because
they are
performing a function akin to the
function of the State. He
submitted that applying the
functional
test private educational
institutions are also State within
the meaning of Article 12 of the
Constitution as stated in R.D
Shetty v. International Airport
Authority of India.
• R.D Shetty v. International
Airport Authority of India (1979)
– Issues raised that International
Airport Authority formulated
from Airport Authority under
Parliamentary Act falls under the
definition of the state. Although
Parliament has the authority/
power to appoint the
chairman, other members, the
entire capital amount for the
establishment of IAA was
invested by the central
government. The Supreme Court
held that even if private bodies
exist but if the usual degree of
control is within the government.
And the government has
extraordinary financial assistance,
therefore such an instrument/
agency (Private Bodies will
fall under the definition of state
under article 12 of the Indian
Constitution).
5) Therefore, the argument
of Mr. Nariman that the
obligation of providing free and
compulsory education to all
children of the age of six to
fourteen years cannot be passed
on by the
State to private educational
institutions has no substance.
6) It is submitted that in
paragraph 53 of the judgment in
T.M.A. Pai Foundation this Court
has
held that while private unaided
educational institutions have the
right to admit students of their
choice, admission of a small
percentage of students belonging
to weaker sections of the society
by
granting them freeships or
scholarships, if not granted by the
Government should also be done.
Further in paragraph 68 of
T.M.A. Pai Foundation, this
Court has also held that a small
percentage of
seats may also be filled up to take
care of poorer and backward
sections of the society
11 | P a g e
2) Above states that the goal
set out in Article 45 of the
Constitution of providing free and
compulsory education for
children up to the age of 14 years
could not be achieved even after
50
years of adoption of the provision
and in order to fulfil this goal, it
was felt that a new provision in
the Constitution should be
inserted as Article 21A providing
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.
3) In accordance with
Article 21A of the Constitution,
the 2009 Act has been enacted
which
provides the manner in which
such free and compulsory
education for children up to the
age of 14
years shall be provided by the
State and it provides in Section
12(1)(c) that private unaided
schools
shall admit in Class I from
amongst weaker sections of
society and from disadvantaged
groups at
least twentyfive per cent of the
strength of the class and provide
free and compulsory education.
4) Private educational
institutions cannot have any
grievance in this regard because
they are
performing a function akin to the
function of the State. He
submitted that applying the
functional
test private educational
institutions are also State within
the meaning of Article 12 of the
Constitution as stated in R.D
Shetty v. International Airport
Authority of India.
• R.D Shetty v. International
Airport Authority of India (1979)
– Issues raised that International
Airport Authority formulated
from Airport Authority under
Parliamentary Act falls under the
definition of the state. Although
Parliament has the authority/
power to appoint the
chairman, other members, the
entire capital amount for the
establishment of IAA was
invested by the central
government. The Supreme Court
held that even if private bodies
exist but if the usual degree of
control is within the government.
And the government has
extraordinary financial assistance,
therefore such an instrument/
agency (Private Bodies will
fall under the definition of state
under article 12 of the Indian
Constitution).
5) Therefore, the argument
of Mr. Nariman that the
obligation of providing free and
compulsory education to all
children of the age of six to
fourteen years cannot be passed
on by the
State to private educational
institutions has no substance.
6) It is submitted that in
paragraph 53 of the judgment in
T.M.A. Pai Foundation this Court
has
held that while private unaided
educational institutions have the
right to admit students of their
choice, admission of a small
percentage of students belonging
to weaker sections of the society
by
granting them freeships or
scholarships, if not granted by the
Government should also be done.
Further in paragraph 68 of
T.M.A. Pai Foundation, this
Court has also held that a small
percentage of
seats may also be filled up to take
care of poorer and backward
sections of the society
11 | P a g e
2) Above states that the goal
set out in Article 45 of the
Constitution of providing free and
compulsory education for
children up to the age of 14 years
could not be achieved even after
50
years of adoption of the provision
and in order to fulfil this goal, it
was felt that a new provision in
the Constitution should be
inserted as Article 21A providing
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.
3) In accordance with
Article 21A of the Constitution,
the 2009 Act has been enacted
which
provides the manner in which
such free and compulsory
education for children up to the
age of 14
years shall be provided by the
State and it provides in Section
12(1)(c) that private unaided
schools
shall admit in Class I from
amongst weaker sections of
society and from disadvantaged
groups at
least twentyfive per cent of the
strength of the class and provide
free and compulsory education.
4) Private educational
institutions cannot have any
grievance in this regard because
they are
performing a function akin to the
function of the State. He
submitted that applying the
functional
test private educational
institutions are also State within
the meaning of Article 12 of the
Constitution as stated in R.D
Shetty v. International Airport
Authority of India.
• R.D Shetty v. International
Airport Authority of India (1979)
– Issues raised that International
Airport Authority formulated
from Airport Authority under
Parliamentary Act falls under the
definition of the state. Although
Parliament has the authority/
power to appoint the
chairman, other members, the
entire capital amount for the
establishment of IAA was
invested by the central
government. The Supreme Court
held that even if private bodies
exist but if the usual degree of
control is within the government.
And the government has
extraordinary financial assistance,
therefore such an instrument/
agency (Private Bodies will
fall under the definition of state
under article 12 of the Indian
Constitution).
5) Therefore, the argument
of Mr. Nariman that the
obligation of providing free and
compulsory education to all
children of the age of six to
fourteen years cannot be passed
on by the
State to private educational
institutions has no substance.
6) It is submitted that in
paragraph 53 of the judgment in
T.M.A. Pai Foundation this Court
has
held that while private unaided
educational institutions have the
right to admit students of their
choice, admission of a small
percentage of students belonging
to weaker sections of the society
by
granting them freeships or
scholarships, if not granted by the
Government should also be done.
Further in paragraph 68 of
T.M.A. Pai Foundation, this
Court has also held that a small
percentage of
seats may also be filled up to take
care of poorer and backward
sections of the society
11 | P a g e
2) Above states that the goal
set out in Article 45 of the
Constitution of providing free and
compulsory education for
children up to the age of 14 years
could not be achieved even after
50
years of adoption of the provision
and in order to fulfil this goal, it
was felt that a new provision in
the Constitution should be
inserted as Article 21A providing
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.
3) In accordance with
Article 21A of the Constitution,
the 2009 Act has been enacted
which
provides the manner in which
such free and compulsory
education for children up to the
age of 14
years shall be provided by the
State and it provides in Section
12(1)(c) that private unaided
schools
shall admit in Class I from
amongst weaker sections of
society and from disadvantaged
groups at
least twentyfive per cent of the
strength of the class and provide
free and compulsory education.
4) Private educational
institutions cannot have any
grievance in this regard because
they are
performing a function akin to the
function of the State. He
submitted that applying the
functional
test private educational
institutions are also State within
the meaning of Article 12 of the
Constitution as stated in R.D
Shetty v. International Airport
Authority of India.
• R.D Shetty v. International
Airport Authority of India (1979)
– Issues raised that International
Airport Authority formulated
from Airport Authority under
Parliamentary Act falls under the
definition of the state. Although
Parliament has the authority/
power to appoint the
chairman, other members, the
entire capital amount for the
establishment of IAA was
invested by the central
government. The Supreme Court
held that even if private bodies
exist but if the usual degree of
control is within the government.
And the government has
extraordinary financial assistance,
therefore such an instrument/
agency (Private Bodies will
fall under the definition of state
under article 12 of the Indian
Constitution).
5) Therefore, the argument
of Mr. Nariman that the
obligation of providing free and
compulsory education to all
children of the age of six to
fourteen years cannot be passed
on by the
State to private educational
institutions has no substance.
6) It is submitted that in
paragraph 53 of the judgment in
T.M.A. Pai Foundation this Court
has
held that while private unaided
educational institutions have the
right to admit students of their
choice, admission of a small
percentage of students belonging
to weaker sections of the society
by
granting them freeships or
scholarships, if not granted by the
Government should also be done.
Further in paragraph 68 of
T.M.A. Pai Foundation, this
Court has also held that a small
percentage of
seats may also be filled up to take
care of poorer and backward
sections of the society
11 | P a g e
2) Above states that the goal
set out in Article 45 of the
Constitution of providing free and
compulsory education for
children up to the age of 14 years
could not be achieved even after
50
years of adoption of the provision
and in order to fulfil this goal, it
was felt that a new provision in
the Constitution should be
inserted as Article 21A providing
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.
3) In accordance with
Article 21A of the Constitution,
the 2009 Act has been enacted
which
provides the manner in which
such free and compulsory
education for children up to the
age of 14
years shall be provided by the
State and it provides in Section
12(1)(c) that private unaided
schools
shall admit in Class I from
amongst weaker sections of
society and from disadvantaged
groups at
least twentyfive per cent of the
strength of the class and provide
free and compulsory education.
4) Private educational
institutions cannot have any
grievance in this regard because
they are
performing a function akin to the
function of the State. He
submitted that applying the
functional
test private educational
institutions are also State within
the meaning of Article 12 of the
Constitution as stated in R.D
Shetty v. International Airport
Authority of India.
• R.D Shetty v. International
Airport Authority of India (1979)
– Issues raised that International
Airport Authority formulated
from Airport Authority under
Parliamentary Act falls under the
definition of the state. Although
Parliament has the authority/
power to appoint the
chairman, other members, the
entire capital amount for the
establishment of IAA was
invested by the central
government. The Supreme Court
held that even if private bodies
exist but if the usual degree of
control is within the government.
And the government has
extraordinary financial assistance,
therefore such an instrument/
agency (Private Bodies will
fall under the definition of state
under article 12 of the Indian
Constitution).
5) Therefore, the argument
of Mr. Nariman that the
obligation of providing free and
compulsory education to all
children of the age of six to
fourteen years cannot be passed
on by the
State to private educational
institutions has no substance.
6) It is submitted that in
paragraph 53 of the judgment in
T.M.A. Pai Foundation this Court
has
held that while private unaided
educational institutions have the
right to admit students of their
choice, admission of a small
percentage of students belonging
to weaker sections of the society
by
granting them freeships or
scholarships, if not granted by the
Government should also be done.
Further in paragraph 68 of
T.M.A. Pai Foundation, this
Court has also held that a small
percentage of
seats may also be filled up to take
care of poorer and backward
sections of the society