The Supreme Court on Thursday said “every citizen has a right to establish and administer educational institution[s] under Article 19(1) (g) so long as the activity remains charitable. Such an activity undertaken by the private institutions supplements the primary obligation of the state. Thus, the state can regulate by law the activities of the private institutions by imposing reasonable restrictions under Article 19(6).”

A Bench of Chief Justice S.H. Kapadia and Justice Swatanter Kumar, while upholding by a majority of 2:1 the constitutional validity of the Right of Children to Free and Compulsory Education Act, 2009, said: “Earmarking of seats for children belonging to a specified category who face financial barrier in the matter of accessing education satisfies the test of classification in Article 14. Further, Section 12(1) (c) provides for a level playing field in the matter of right to education to children who are prevented from accessing education because they do not have the means or their parents do not have the means to pay for their fees. Such a condition would come within the principle of reasonableness in Article 19(6).

“However, we want the Government to clarify the position on one aspect. There are boarding schools and orphanages in several parts of India. In those institutions, there are day scholars and boarders. The 2009 Act could only apply to day scholars. It cannot be extended to boarders. To put the matter beyond doubt, we recommend that appropriate guidelines be issued under Section 35 of the 2009 Act clarifying the above position.”

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