SC refers again the question of constitutional validity of Articles 15(5) and 21-A of the Constitution to a Constitution Bench

A three Judge Bench of the Supreme Court consisting Chief Justice P Sathasivam, Justices Ranjana Prakash Desai and Ranjan Gogoi on Friday referred the question of constitutional validity of Articles 15(5) and 21-A of the Constitution in so far as it relates to unaided educational institutions and the provisions of the Right of Children to Free and Compulsory Education Act, 2009 and the Right of Children to Free and Compulsory Education Rules, 2010; to a Constitution Bench in Pramati Educational and Cultural  Trust  vs. Union of India [W.P.(C)No.416/2012].

The Constitution (Ninety-Third) Amendment Act, 2005, inserted clause (5) in Article 15,  enables  the State to make special provisions for members of the scheduled castes, scheduled tribes and socially and educationally backward classes, for admission to all educational institutions, including private unaided institutions, but except minority institutions. Under the new Article, the Central Educational Institutions (Reservation and Admission) Act, 2006 was enacted. Challenges to the said Act as well as the 2005 Constitutional Amendment were heard by a Constitution Bench in Ashok Kumar Thakur’s case, which upheld the constitutional validity of the legation as well Article 15(5).

Later, the Right of Children to Free and Compulsory Education Act, 2009 was enacted by the Parliament and the Right of Children to Free and Compulsory Education Rules, 2010 was framed by the Central Government, imposing several obligations on the schools as defined by Section 2(n), which included privately managed unaided educational institutions. These obligations include duty to admit atleast 25% students belonging to disadvantaged group and weaker sections of society as defined by Sections 2(d) and 2(e) of the Act.

The Right of Children to Free and Compulsory Education Act, 2009 also came under challenge and a three Judge Bench upheld the constitutional validity of the Act, 2009, vide judgment reported in Society for Unaided Private Schools in Rajasthan v. Union of India, by a majority of 2:1.

Since the successive constitutional challenges raised by the private managements failed, now, the petitioners have raised a technical plea before the Supreme Court to the effect that, the matter ought to have been heard by a Constitution Bench and not by a three judge Bench, in view of an earlier reference of the same issue to a Constitution Bench.

It was contented on behalf of the petitioners that the  constitutional validity of Right of Children to Free and Compulsory Education Act, 2009 was challenged and the same was heard by a three-Judges' Bench and during the preliminary hearing of the matter, the three-Judges' Bench, on recording that the matter pertained to the constitutional validity of Articles 15(5) and 21-A of the Constitution, had  referred the matter for adjudication by a Constitution Bench of five Hon'ble Judges vide order dated 6.9.2010 [Society for Unaided Private Schools in Rajasthan v. Union of India (2012) 6 SCC 102], however  the Bench, eventually heard and finally decided the issue  by a majority of 2:1, without referring to the reference order dated 6.9.2010 and also without considering  the opinion of Justice D Bhandari,  in Ashoka Kumar Thakur v. Union of India, striking down Article 15(5) as applicable to unaided educational institutions.

There are many matters of national importance pending consideration of the Constitution Bench and the Court is considering the Constitution of the Bench in the coming weeks to settle the issues in this case and the present reference is likely to be included in the list of cases for hearing.