T58 Petitioner

8/20/2019 T58 Petitioner

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-Table of Contents-

III. The Sure+e Court has violated Article 1; of the Constitution of %onisber due

to the classification created bet/een +inorit and non-+inorit schools.............................8

A. Test of classification......................................................................................................8

B. "ot uarded b Article


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- Index of Authorities-

IN;E Sons

vt 2 =td( 1)?12

3. 7r. =.. Sinhvi( Constitution of India 6olu+e 1( 3nd edn.(odern =a/ 0ublications(

344?2 @8


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- Index of Authorities-

;. 0 Sinh( Ashoka ThakurD A 7ivided 6erdict on an #ndivided Social ,ustice

easure @3448 "#,S=a/'/ 1< @13

5. 0% Triathi( 7irective 0rincile of State 0olicD The =a/ers Aroach to The+

Hitherto 0arochial( In9urious and #nconstitutional 1)5; SC, *. @1


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- Identification of Issues-

I;ENTIFICATION OF ISSUES

The follo/in issues have been resented before the Honourable Court for its deter+inationD

1. :hether the 'evie/ 0etition civil2 "o. 1*85 of 3413 is +aintainable.

3. :hether the 0ublic Interest :rit 0etition bein :rit 0etition civil2 "o. 1);3 of 3413

is +aintainable.


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-Statement of ,acts-

STATEMENT OF FACTS

I

The #nion of %onisber( a Soverein 7e+ocratic 'eublic( beca+e indeendentfro+ the #nion of India. But even after the searation fro+ the India( there is continuit of

re-indeendence la/s and the Constitution of %onisber is closel +odelled on the Indian

Constitution. %onisber considers itself a co++on la/ 9urisdiction and the 9ud+ents of

Indian courts have ersuasive value in %onisber( eseciall on constitutional issues.

II

The 0arlia+ent of %onisber enacted the 'iht of Children to $ree and Co+ulsor

ducation Act( 344) &ereinafter 'T Act2 /hich is identical to the Indian 'T Act( 344).

6ide section 1312c2 of the 'T Act( 344) it /as rovided that unaided rivate +inorit

schools /ould have to ad+it in Class I( to the extent at least 35E of the strenth of that class(

children belonin to financiall /eaker sections of the societ in the neihbourhood and

rovide free and co+ulsor education to such children( till its co+letion.

III

The etitioner The Societ of #naided 0rivate Schools of %onisber filed a /rit

etition bein :rit 0etition Civil2 "o. 14?? of 3414 challenin the constitutional validit of

the 'T Act( 344) as bein violative of their funda+ental riht to run and ad+inister

educational institutions under the Article 1)122 of the Constitution as interreted in various

9ud+ents of the Sure+e Court.

IV

The etitioner also challened the constitutional validit of Article 1552 and 31-A of

the Constitution as bein violative of the basic structure of the Constitution as the said that

state could i+ose reservation in rivate unaided non-+inorit educational institutions /hile

the state could not do so in resect of rivate unaided +inorit educational institutions. The


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But the +atter ca+e u before the sa+e 31 of the Constitution b refusin

to refer the +atter to a Constitution Bench on secious round that the court /as too bus.

MEMORAN;UM for PETITIONER

-ix-


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The lastl clai+ed that the Sure+e Court itself had violated their $' to eFualit and eFual

rotection of la/s under Article 1; of the Constitution since the had been burdened /ith

35E reservation /hile +inorit institutions /ere not burdened.

Y!)+ )(* ;)%! K! F)#% L)5 $( >!%$"(

344) 1. 'iht of Children to $ree and Co+ulsor

ducation Act enacted.

3. #naided non-+inorit rivate schools /ill

have to ad+it to the extent of 35E of the

strenth of the class( children belonin to

financiall /eaker sections of the societ.

1312c2 of the 'T Act(

344)

3414 :rit etition civil2 "o. 14?? of 3414 /as

filed challenin the constitutional validit

of the 'T Act( 344).

Article 1)122( 1552

and 31 A of the

Constitution.

1*-1-3411 The issues raised as to the constitutional

validit of Articles 1552 and 31A /ere

/ithdra/n b the Counsel.

Article 1552 and 31A of

the Constitution.

13-;-3413 'T Act( 344) /as held constitutional b a

three 9ude bench.

Section 1312c2 of the

'T Act and Article 1)12

2( 3) and


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15-)-3413 All the 0etitions have been listed for hearin

in the Sure+e Court.


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-Summary of Ar'uments-

SUMMARY OF ARGUMENTS

I. R EVIEW PETITION 4CIVIL6 NO. 178 OF 2012 IS MAINTAINABLE AN; VALI;

Constitutin a Bench in inorance of the rovisions of article 1;5


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-Summary of Ar'uments-

IV. WHETHER THE RTE ACT, 2009 IS VIOLATIVE OF THE FUN;AMENTAL R IGHTS

GUARANTEE; UN;ER ARTICLE 194164G6 AN; WHETHER ARTICLE 18486 AN; 21A ARE

CONSTITUTIONALLY VALI; AN; IN CONSONANCE WITH THE BASIC STRUCTURE OF THE

CONSTITUTION.

#naided institutions can leiti+atel clai+ unfettered funda+ental riht to choose the

students to be allo/ed ad+issions and the rocedure therefore sub9ect to it bein fair(

transarent and non-exloitative. The li+itation i+osed b the 'T Act( 344) is arbitrar

and beond the interests of the ublic. oreover( it is the obliation of the State and State

alone to rovide free and co+ulsor education.

Article 1552 breaches the Basic Structure 'ule of eFualit2 b lacin the unaided +inorit

educational institutions on a secial footin. Thereb( oustin the balance and structure of the

Constitution b alterin the &olden Trianle Articles 1;( 1) and 312. $urther+ore( Article

31A( ivin rise to 'iht to ducation Act( 344)( has abroated the $unda+ental 'iht under

Article 1)122( thereb( doin a/a /ith the identit of a facet of the Basic Structure.

Hence( The Constitution iht-Sixth A+end+ent2 Act( 3443( is liable to be struck do/n.


-xiii-


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reasonabl be no t/o oinions( entertained about it7 if the la/ that is alied is not the la/

/hich is alicable.8 It is aroriate to brin to liht the fact that on ?-4)-3413( the three

9ude bench took the vie/ that the +atter needed to be referred to a Constitution Bench of

five 9udes). SubseFuentl( even before the Counsel on behalf of the 0etitioner had conceded

the /ithdra/al of the challene to the constitutional validit of Articles 1552 and 31-A( the

three 9ude bench had oined that the are not in favor of referrin the case to a five 9ude

bench.14 Thereafter( the 0etitioner hu+bl sub+its that the Court has acted in rave inorance

of la/.

C. R!#%$'$#)%$"( "' @$%)! "' C"+% (!#!)+ '"+ )! "' %$#!

The Court can exercise the o/er of revie/ in a etition if its directions have resulted in the

derivation of funda+ental rihts of a citiLen or an leal riht of the etitioner because no-

one can be forced to suffer because of the +istake of the Court.11 It is exercised to re+ove the

error and not for disturbin finalit. 12 The Court shall not be recluded fro+ exercisin its

inherent o/er to refer a constitutional Fuestion for oinion of the Constitutional Bench

under the roviso to Article 1;5


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consistent statutor rovisionsD i2 Article 1;5


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$urther+ore( !rder MMM61212 of the Sure+e Court 'ules clearl states that it is

essential to have a constitutional bench for hearin of an case filed under Article


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Hence( violation of rinciles of "atural 9ustice /ould lead to the violation of Basic structure

of the Constitution. Article 1; rotects aainst an arbitrariness. Hearin +ust be fair and is

necessar to avoid arbitrariness.


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In the resent case( the societ of free educational institutions co+rises of those institutions

/hich belon to the non-+inorit section of schools in %onisber. ;3 'iht to fair hearin

bein denied of the 0etitioners of :.0.14?? of 3414 and henceforth the decision bein

i+osin a burden on the etitioners of the resent case has testified the resence of

sufficient interest of the etitioners in the resent case.

C.2 P+!!(#! "' !+"()- @"%$! )-"(! $ ("% ''$#$!(% %" +!!#% !%$%$"( "%!+5$!

$( -$# $(%!+!%.

Ar'uendo$ even if it is acceted that there +a be a ersonal interest of the etitioner

involved in the resent circu+stance( the etition cannot be re9ected keein in +ind the

nature of the etition /hich seeks to redress larer ublic in9ur. If the Court is satisfied that

the Fuestions raised are of sufficient ublic interest ( then the issue of locus standi of the

erson lacin relevant facts and +aterials before the Court beco+es irrelevant.;


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3. THE SUPREME COURT HAS VIOLATE; ARTICLE 1: OF THE CONSTITUTION OF

K ONIGSBERG ;UE TO THE CLASSIFICATION CREATE; BETWEEN MINORITY AN; NON?

MINORITY SCHOOLS.

The t/o exressions eFualit before the la/ and the eFual rotection of la/s uaranteed

under Article 1; are a declaration of the absence of an secial rivilees in favor of an

individual and of eFual rotection of all ersons in the en9o+ent of their rihts and

rivilees /ithout favoritis+ or discri+ination.;* The alication of Article 1; is sub9ect to

the follo/inD

A. T!% "' #-)$'$#)%$"(

There is a test to deter+ine the constitutionalit of a rovision under Article 1; that eFuals

have to be treated eFuall and un-eFuals ouht not to be treated eFuall.;8 In the case of R*+

5ar' v* 1nion of India(;) it /as said that the test of classification of Article 1; +ust not be

arbitrar but +ust be rational. In order to ass the test of classification under Article 1;( the

classification should be based on intelli'ible differentia@


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B. N"% )+*!* A+%$#-! 30416

The rovisions of Article


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It has to be seen here( that the ri+ar ob9ective of Article 1552 is to ro+ote the educational

advance+ent of the sociall and educationall back/ard classes of citiLens( or the SC and ST

in +atters of ad+ission in educational institutions5). oreover( So far as a%%ro%riation of

uota by the State and enforcement of its reservation %olicy is concerned$ we do not see much

of a difference between non-minority and minority unaided educational institutions*?"<

Hence( Article 1552 breaches the 'ule of Fualit enshrined in the Basic Structure of the

Constitution b lacin the unaided +inorit educational institutions on a secial footin and

exe+tin it fro+ bearin the co++on burden of reservation for Scheduled Castes(

Scheduled Tribes and Sociall and ducationall Back/ard Classes /hich is hostile(

discri+inator and /ithout a nexus /ith the ob9ect souht to be achieved. ver state action

+ust be non-arbitrar and reasonable. !ther/ise( the court /ould strike it do/n as invalid ?1.

A.2. A+%$#-! 30416 $ ("% )( )"-%! +$%

The riht conferred on the +inorities b Article


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In the case of inerva ills v. #nion of India( ,ustice Chandrachud had re+arked( >Three

Articles of our Constitution$ and only three$ stand between the heaven of freedom into which

Ta'ore wanted his country to awa/e and the abyss of unrestrained %ower* They are Articles

D$ ! and ;*? Therefore( it is contended that the &olden Trianle of Articles 1;( 1) and 31

is not to be altered and the balance and structure of these constitutional rovisions has been

ousted b the Constitution "inet-Third A+end+ent2 Act( 3445. Individual libert and

freedo+( as rotected b the &olden Trianle( +ust carr reater /eiht for those /ho set off

on their o/n and refuse &overn+ent +one.?5

Addressin the Fuestion as to /hether the )The !Erd AmendmentFs im%osition of reservation on unaided institutions has abro'ated

Article !(:(':$ a basic feature of the Constitution$ in violation of our ConstitutionFs basic

structure* Therefore$ I sever the !Erd AmendmentFs reference to unaided institutions as

ultra vires of the Constitution* The ri'ht to select students on the basis of merit is an essential

feature of the ri'ht to establish and run an unaided institution* The effect of the !Erd

Amendment is such that Article ! is abro'ated$ leavin' the 4asic Structure altered?

B. A+%$#-! 21?A $"-)%! %! B)$# S%+#%+! ;"#%+$(!

It is a /ell established rincile that the Constitution can be a+ended onl if it does not alter

its Basic Structure.?* It can be laid do/n fro+ the follo/in line of aru+ents that The

Constitution iht-Sixth A+end+ent2 Act( 3443( b /hich Article 31-A /as inserted in the

Constitution( violates the Basic Structure of the ConstitutionD

An a+end+ent alters the Basic Structure if its actual or otential effect /ould be to da+ae a

facet of the Basic Structure to such an extent that the facets oriinal identit is

co+ro+ised.?8 If a+end+ents clear the /a for future leislation that /ould in fact violate

the basic structure( the court need not /ait for that otential violation to beco+e an actual

one.?)

?5 Asho/a +umar Tha/ur v 1nion of India 34482 ? SCC 1. ?? Society for 1n-aided Private Schools of Rajasthan v 1nion of India (13I: and Anr* 34132 ? SCC 1.?* +esavananda 4harti v State of +erala AI' 1)*< SC 1;?1.?8 Asho/a +umar Tha/ur v 1nion of India 34482 ? SCC 1.?) Ibid. 0 Sinh( Ashoka ThakurD A 7ivided 6erdict on an #ndivided Social ,ustice easure @3448

"#,S=a/'/ 1


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Article 31-A has iven /a to 'T Act( 344)( /hich abroates the $unda+ental 'iht of the

0etitioners under Article 1)122. Thus( it da+aes a facet of the Basic Structure to an extent

that the facets oriinal identit is done a/a /ith. Hence( The Constitution iht-Sixth

A+end+ent2 Act( 3443( in this case( aves /a for a leislation /hich in turn violates the

basic structure and hence( is liable to be struck do/n.

Also( the ver content of Article 31A co+es fro+ readin of Articles ;1( ;5 and ;? included

in 0art I6 of the Constitution.*4 The oals set out in 0art I6 have to be achieved /ithout the

abroation of the +eans rovided for b 0art III. It is in this sense that 0arts III and I6

toether constitute the core of our Constitution and co+bine to for+ its conscience. Anthin

that destros the balance bet/een the t/o arts /ill i%so facto destro an essential ele+ent of

the basic structure of our Constitution.*1

Therefore( it can be deduced that Article 31A

violates the Basic Structure of the Constitution.

C. THE RTE ACT, 2009 IS VIOLATIVE OF ARTICLE 1941646 OF THE

CONSTITUTION.

C.1. )-$% "' !*#)%$"( $ $@"+%)(%

0rivate institutions are exandin in scoe and nu+ber( and are beco+in increasinl

i+ortant in arts of the /orld that relied al+ost entirel on the ublic sector.

*3

Considerable+one b /a of caital invest+ent and overhead exenses /ould o into for establishin

and +aintainin a ood Fualit unaided educational institution. *<

The fixin of a riid fee structure( dictatin the for+ation and co+osition of a overn+ent

bod( co+ulsor no+ination of teachers and staff for aoint+ent or no+inatin students

for ad+issions /ould be ()##!%)-! +!%+$#%$"(.*; #naided institutions can leiti+atel

clai+ unfettered funda+ental riht to choose the students to be allo/ed ad+issions and the

rocedure therefore sub9ect to it bein fair( transarent and non-exloitative.*5 It is therefore

contended that the 'iht to ducation Act( 344) i+oses an unreasonable restriction on the

riht of the 0etitioner under Article 1)122 of the Constitution.

C.2. R$% %" !%)-$ )(* )*@$($%!+ !*#)%$"()- $(%$%%$"(

*4 Society for 1n-aided Private Schools of Rajasthan v 1nion of India 2 Anr* 34132 ? SCC 1 K;?*1 0inerva 0ills v 1nion of India AI' 1)84 SC 1*8) K?3 0% Triathi( 7irective 0rincile of State 0olicD The=a/ers Aroach to The+ Hitherto 0arochial( In9urious and #nconstitutional 1)5; SC, *.*3 T 0 A Pai ,oundation 2 3rs* v State of +arnata/a 2 3rs* 34432 8 SCC ;81.*< Society for 1n-aided Private Schools of Rajasthan v 1nion of India (13I: and Anr* 34132 ? SCC 1.*; T*0*A Pai ,oundation 2 3rs* v State of +arnata/a 2 3rs* 34432 8 SCC ;81.*5 P*A Inamdar 2 3rs v State of 0aharashtra 2 3rs* AI' 3445 SC


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The riht of the +inorit institution to ad+it students of its o/n co++unit is a necessar

conco+itant riht /hich flo/s fro+ the riht to establish and ad+inister educational

institutions under Article


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Article 31A( the result of /hich is the 'iht to ducation Act( 344)( reads( >The State shall

%rovide free and com%ulsory education to all children of the a'e of six to fourteen years in

such manner as the State may$ by law$ determine*?

The /ords %)%! )-- +"$*! are exress enouh to reveal the intention of the 0arlia+ent

to cast an obliation "( %! S%)%! )-"(! to rovide free and co+ulsor education. Also the

exression S%)%! )-- +"$*! not +"$*! '"+D denote the constitutional obliation on

the State and not on non-state actors. 81 It /ill be unfair to co+el unaided schools of other

rivate oranisations and individuals to rovide education to the extent of 35E of their

strenth to children of neihbourhood as it /ill +ake serious inroad into their riht of

ad+inistratin their educational institutions. 83

The Sure+e Court of India has held that i+osition of Fuota of State seats or enforcin

reservation olic of the State on available seats in unaided rofessional institutions are acts

constitutin serious encroach+ent on the riht and autono+ of rivate rofessional

educational institutions. 8

Documents

T58 Petitioner