T58

UNIVERSITY MOOT COURT SELECTIONS, 2012

BEFORE THE HONOURABLE SUPREME COURT OF KONIGSBERG

WRIT PETITION U/ART. 32 & REVIEW PETITION U/ART. 137

The Society of Unaided Private Schools of Konigsberg & Ors. Petitioner 1

The Society of Free Educational Institutions...Petitioner 2

The Union of Konigsberg.Respondent

(Review Petition (Civil) No. 1785 of 2012/

Writ Petition (Civil) No. 1942 of 2012)

MEMORANDUM for PETITIONER

-Table of ContentsTABLE OF CONTENTS

Table of Contents........................................................................................................................i
Index of Authorities..................................................................................................................iii
Books....................................................................................................................................iii
Articles and Treatises............................................................................................................iii
Cases.....................................................................................................................................iv
Statutes..................................................................................................................................vi
1.

THE CONSTITUTION OF KONIGSBERG, 1978......................................................vi

Statement of Jurisdiction..........................................................................................................vii
Identification Of Issues...........................................................................................................viii
Statement of Facts.....................................................................................................................ix
Summary of Arguments..........................................................................................................xiii
Arguments Advanced.................................................................................................................1
I.

Review Petition (civil) No. 1785 Of 2012 Is Maintainable And Valid..........................1

A. Discovery of new matter...............................................................................................1
B. Clear ignorance of law, error apparent on the face of record........................................1
C. Rectification of mistake of Court necessary for sake of justice....................................2
D. Judgment Per Incuriam.................................................................................................2

II.

Public Interest Writ Petition (civil) No. 1942 of 2012 Is Maintainable And Valid........3
A. The petitioner has locus standi in invoking the jurisdiction of the Court.....................3
B. Violation of fundamental Rights guaranteed under Part III of the Constitution...........4
C. The Petitioner has sufficient interest in the present case for invoking the jurisdiction
of the Court........................................................................................................................7
MEMORANDUM for PETITIONER
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-Table of ContentsIII.

The Supreme Court has violated Article 14 of the Constitution of Konigsberg due

to the classification created between minority and non-minority schools.............................8

A. Test of classification......................................................................................................8
B. Not guarded by Article 30(1).........................................................................................9
IV.

Article 15(5) and 21-A Violate The Basic Structure Of The Constitution...............10

A. Article 15(5) violates the Basic Structure Doctrine....................................................10

B. Article 21-A violates the Basic Structure Doctrine.....................................................12
C. THE RTE ACT, 2009 IS VIOLATIVE OF ARTICLE 19(1)(g) OF THE
CONSTITUTION............................................................................................................13
Conclusion and Prayer for Relief.............................................................................................15

MEMORANDUM for PETITIONER

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-Index of AuthoritiesINDEX OF AUTHORITIES

BOOKS
1. D D Basu, Commentary on the Constitution of India (4th edn., S.C. Sarkar & Sons
( pvt ) Ltd, 1961)
2. Dr. L.M. Singhvi, Constitution of India (Volume 1, 2nd edn.,Modern Law Publications,
2006) [8]
3. DV Subba Rao, Sanjiva Rows The Advocates Act 1961 (7th edn., Lexis nexis
Butterworths, 1995)
4. H.M. Seervai, Constitutional Law of India (Volume 2, 3rd edn., N.M.Tripathi Private
Ltd., 1984)
5. I.P.Massey, Administrative Law (7th edn., eastern book company, 2008) [6]
6. Ibohal Singh, Constitutions, Constitutional interpretation and Human Rights (Volume
3, 1st edn., Lexis Nexis Butterworths Wadhwa Nagpur, 2009)
7. M P Jain & S N Jain, Principles of Administrative Law (5th edn., Wadhwa Nagpur,
2007)
8. M P Jain, Indian Constitutional Law (volume 1, 5th edn., Wadhwa and company
Nagpur, 2003) [5]
9. P Ramanatha Iyer, The law Lexicon (2nd edition rep., Wadwa Nagpur, 2006) [3]
10. S P Sathe, Administrative Law (7th edn., Lexis Nexis Butterworths Wadwa Nagpur,
2006) [6]
11. Shailja Chander ed., V.R. Krishna Iyer on Fundamental Rights and Directive
Principles (3rd edn., Deep & deep Publications Pvt Ltd, 2003)
ARTICLES AND TREATISES
1. Universal Declaration of Human Rights (UDHR) (1948) [5]
2. D.C. Jain, The Phantom of Public Interest (1986) 3 SCC (J) 30 [6]
3. Dharmadhikari J, Right to Education(2010) 3 SCC (Jour) 7 [15]
MEMORANDUM for PETITIONER
-iii-

-Index of Authorities4. M P Singh, Ashoka Thakur: A Divided Verdict on an Undivided Social Justice
Measure [2008] NUJSLawRw 13 [12]
5. PK Tripathi, Directive Principle of State Policy: The Lawyers Approach to Them
Hitherto Parochial, Injurious and Unconstitutional 1954 SCJ 7. [13]
CASES
1. A R Antulay v R S Nayak (1988) 2 SCC 602 [3]
2. Ajay Hasia v Khalid Mujib AIR 1981 SC 487 [11]
3. Aribam Tuleshwar Sharma v Aibam Pishak Sharm (1979) 4 SCC 389 [1]
4. Ashoka Kumar Thakur v Union of India (2008) 6 SCC 1 [12]
5. Avinash Mehrotra v Union of India & Ors (2009) 6 SCC 398 [15]
6. B.Kishtaiah v Government of India (1998) 4 Andh LT 738
7. Balco Employees Union v Union of India (2002) 2 SCC 333 [6]
8. Bangalore medical trust v B.S. Muddappa AIR 1991 SC 1902 [4] [8]
9. Behram v State of Bombay (1955) SCR 613 [2]
10. Budhan Choudhary v State of Bihar AIR 1955 SC 191 [9] [10]
11. Cantonment Board Dinapore v Taramani Devi AIR 1992 SC 61 [6]
12. CCE v Madras Rubber Factory Ltd (1989) 3 SCC 238
13. Central Inland Water Transport Corporation Ltd. v Brajo Nath AIR 1986 SC 1571 [6]
14. Chintaman Rao v State of Madhya Pradesh AIR 1951 SC 118 [14]
15. Chunilal and Sons Ltd. v Century Spinning Co AIR 1962 SC1314 [5]
16. Common Cause, a registered society v union of India (1996) 6 SCC 667 [5]
17. Delhi Judicial Service Association v State of Gujarat AIR 1991 SC 2176 [5]
18. Inderchand Jain through L.Rs. v Motilal through L.Rs (2009)14 SCC 663 [1]
19. Indian Banks Association,Bombay v DevkalaConsultacy Service AIR 2004 SC 2615
[8]
20. Indra Sawhney v Union of India (2000) 1 SCC 168 [10]
21. Janta Dal v H.S Chouddhury 1993 SCC (Cri) 36 [3]
22. Kesavananda Bharti v State of Kerala AIR 1973 SC 1461 [10] [12]
23. Kochuni K K v State of Madras AIR 1960 SC 1080 [14]
24. Lakshmi v State of UP AIR 1981 SC 873 [14]
25. Liatuk K. Vyas v Surut Borough Municipality AIR 1953 Bom 133 (R) [2]
26. Lily Thomas v Union of India AIR 2000 SC 1650 [2]
27. M. Nagaraj v Union of India (2006)8 SCC 212 [7]
28. M.S Jayaraj v Commisioner of Excise, Kerala AIR 2000 SC 3266 [8]
29. Maneka Gandhi v Union of India AIR 1978 SC 597 [6]
30. Mehsana District Central Co-operative Bank Ltd. V State of Gujarat AIR 2004 SC
1576 [8]
31. Minerva Mills v Union of India AIR 1980 SC 1789 [13]
32. Motor General Traders v State of A.P (1984) 1 SCC 222 [8]
33. NagaraholeBudakhattuHakku v State AIR 1997 Kant 288 [7]
34. Naresh S Mirajkar v State of Maharashtra AIR 1967 SC 1 [4]
35. PA Inamdar & Ors. v State of Maharashtra & Ors AIR 2005 SC 3226 [10] [14]
36. Peoples for Democratic Rights v Ministry of home Affairs AIR 1985 Del 268 [6]
37. R.K Garg v Union of India (1981) 4 SCC 675, 689-690 [8]
MEMORANDUM for PETITIONER
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-Index of Authorities38. S. Nagraj v State of Karnataka (1993) Supp SCC 1595 [2] [6]
39. S.P.Gupta v Union of India 1981 Supp SCC 87 [3] [4] [7]
40. Shanmugam Servai v P. Periyakaruppan Servai AIR1996 Mad 411, 414 [1]
41. Shatrunjit v Md Azamat, A 1971 SC 1474 [2]
42. ShivajiraoNilangekarPatil v Mahesh MadhavGosavi (1987) 1 SCC 227 [8]
43. Sindhi Education Society v. Govt (NCT of Delhi) 2010 8 SCC 49 [9] [11]
44. Society for Un-aided Private Schools of Rajasthan v UOI & Anr (2012) 6 SCC 1 [9]
[12]
45. St. Stephens College v University of Delhi (1992) 1 SCC 558 [14]
46. State of Gujarat v Essar Oil limited (2012) 3 SCC 522 [3]
47. State of Rajasthan v Prakash Chander 1998CriLJ2012 [4]
48. State of West Bengal v Anwar Ali Sarkar AIR 1952 SC 75 [9] [10]
49. State of West Bengal v Kamal Sengupta (2008) 8 SCC 612 [1]
50. Subhash Kumar v State of Bihar AIR 1991 SCW 121[4]
51. Tarak Singh v JyotiBasu AIR 1999 Cal 354 [8]
52. Thungabhadra Industries Ltd. v Govt. of A.P. (1964) 5 SCR 174 [2]
53. TMA Pai Foundation v State of Karnataka (2008) 8 SCC 481 [9] [11]
54. Trivedi v State of Gujarat AIR 1986 SC 1323 [14]
STATUTES
1.

THE CONSTITUTION OF KONIGSBERG, 1978

2. THE CODE OF CIVIL PROCEDURE, 1908

3. SUPREME COURT RULES, 1966

MEMORANDUM for PETITIONER

-v-

-Statement of JurisdictionSTATEMENT OF JURISDICTION

The Society of Unaided Private Schools of Konigsberg, Private Unaided Non-Minority

Educational Institutions and others, the Petitioners in the instant case, have the honour to
submit this Memorial before the Supreme Court of Konigsberg, in pursuance of Article 32
and Article 137 of the Constitution of Konigsberg.
The present memorial sets forth the facts, contentions and arguments in the present case.

MEMORANDUM for PETITIONER

-vi-

-Identification of IssuesIDENTIFICATION OF ISSUES

The following issues have been presented before the Honourable Court for its determination:
1. Whether the Review Petition (civil) No. 1785 of 2012 is maintainable.
2. Whether the Public Interest Writ Petition being Writ Petition (civil) No. 1942 of 2012
is maintainable.
3. Whether the Supreme Court has violated Article 14 due to the classification created
between minority and non-minority schools.
4. Whether the RTE Act, 2009 is violative of the Fundamental Right guaranteed under
Article 19(1)(g) and whether Article 15(5) and 21-A are constitutionally valid and in
consonance with the Basic structure of the Constitution.

MEMORANDUM for PETITIONER

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-Statement of FactsSTATEMENT OF FACTS

I
The Union of Konigsberg, a Sovereign Democratic Republic, became independent
from the Union of India. But even after the separation from the India, there is continuity of
pre-independence laws and the Constitution of Konigsberg is closely modelled on the Indian
Constitution. Konigsberg considers itself a common law jurisdiction and the judgments of
Indian courts have persuasive value in Konigsberg, especially on constitutional issues.
II
The Parliament of Konigsberg enacted the Right of Children to Free and Compulsory
Education Act, 2009 (Hereinafter RTE Act) which is identical to the Indian RTE Act, 2009.
Vide section 12(1)(c) of the RTE Act, 2009 it was provided that unaided private minority
schools would have to admit in Class I, to the extent at least 25% of the strength of that class,
children belonging to financially weaker sections of the society in the neighbourhood and
provide free and compulsory education to such children, till its completion.
III
The petitioner The Society of Unaided Private Schools of Konigsberg filed a writ
petition being Writ Petition (Civil) No. 1066 of 2010 challenging the constitutional validity of
the RTE Act, 2009 as being violative of their fundamental right to run and administer
educational institutions under the Article 19(1)(g) of the Constitution as interpreted in various
judgments of the Supreme Court.
IV
The petitioner also challenged the constitutional validity of Article 15(5) and 21-A of
the Constitution as being violative of the basic structure of the Constitution as they said that
state could impose reservation in private unaided non-minority educational institutions while
the state could not do so in respect of private unaided minority educational institutions. The
3-judge bench was of the opinion that since the challenge involved raised questions as to the
validity of Articles 15(5) and 21-A of the Constitution, the matter needed to be referred to a
Constitution Bench of 5 judges and directed it to be placed before a Constitution bench.
V
MEMORANDUM for PETITIONER
-viii-

-Statement of FactsBut the matter came up before the same 3-judge bench and it opined that it was not in
favour of referring the matter to the Constitution Bench as the SC was already hard pressed
for work. Furthermore, the counsel conceded that they were withdrawing the challenge to the
Constitutional validity of Article 15(5) and 21-A, and were restricting their challenge to the
constitutional validity of the RTE Act, 2009 alone. The concession was accepted.
VI
By its judgments, the 3-judge bench, by a majority of 2-1, upheld the constitutional
validity of the RTE Act, 2009 in its entirety, and especially the provisions of Section 12(1)(c)
thereof which sought to impose reservations on financial criteria alone in private unaided
non-minority institutions. The dissenting judge said that though the RTE Act was as such
valid, but invalid to the extent that it sought to impose reservation on any ground whatsoever
in private unaided non-minority institutions. However, the 3-judge bench unanimously held
that the entire RTE Act was invalid so far as minority unaided private educational institutions
as it violated their fundamental rights under Article 29 & 30.
VII
Review Petitions were filed against the said judgment on various grounds including
that the said judgments are vitiated by errors apparent on the face of record and that the said
judgments are per incuriam praying that the matter be referred to a Constitution bench for
fresh hearing. The petitioners also disowned the concession made by their counsel and sought
to challenge Articles 15(5) & 21A afresh, alleging that the concession which gravely violated
their FRs was made by the counsel without consent. They also claimed that they were
considering the bringing of an action against the counsel.
VIII
A number of private unaided minority educational institutions who did not join in the
proceedings have also filed a public interest writ petition alleging mala fide and bias against
the then Chief Justice of Konigsberg on the Administrative side of the Supreme Court as
Master of the Roster for having denied them a hearing on their FRs, which right to hearing
was itself a Fundamental Right. They also contended that the said CJI as Master of the Roster
had violated their fundamental rights under Articles 14 & 21 of the Constitution by refusing
to refer the matter to a Constitution Bench on specious ground that the court was too busy.
MEMORANDUM for PETITIONER
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-Statement of FactsThey lastly claimed that the Supreme Court itself had violated their FR to equality and equal
protection of laws under Article 14 of the Constitution since they had been burdened with
25% reservation while minority institutions were not burdened.
Year and Date
2009

Key Facts

Law in question

1. Right of Children to Free and Compulsory 12(1)(c) of the RTE Act,

Education Act enacted.

2009

2. Unaided non-minority private schools will

have to admit to the extent of 25% of the
strength of the class, children belonging to
financially weaker sections of the society.
2010

17-1-2011

Writ petition (civil) No. 1066 of 2010 was

Article 19(1)(g), 15(5)

filed challenging the constitutional validity

and 21 A of the

of the RTE Act, 2009.

Constitution.

The issues raised as to the constitutional

Article 15(5) and 21A of

validity of Articles 15(5) and 21A were

the Constitution.

withdrawn by the Counsel.

12-4-2012

RTE Act, 2009 was held constitutional by a

Section 12(1)(c) of the

three judge bench.

RTE Act and Article 19(1)

(g), 29 and 30 of the
Constitution.

16-8-2012

Review Petition (Civil) No. 1785 of 2012

Article 137 of the

was filed contending that the withdrawal of

Constitution.

one of the issues was without the consent of

the Original Petitioners and was negligent
on the part of the Counsel.
17-8-2012

Public Interest Writ Petition (Civil) No.

Article 32, 14 and 21 of

1942 of 2012 was filed alleging mala fides

the Constitution.

against the Chief Justice and also contending

violation of their fundamental Rights
guaranteed under the Constitution.

MEMORANDUM for PETITIONER

-x-

-Statement of Facts15-9-2012

All the Petitions have been listed for hearing

in the Supreme Court.

MEMORANDUM for PETITIONER

-xi-

-Summary of ArgumentsSUMMARY OF ARGUMENTS

I. REVIEW PETITION (CIVIL) NO. 1785 OF 2012 IS MAINTAINABLE AND VALID

Constituting a Bench in ignorance of the provisions of article 145(3) of the Constitution of
Konigsberg as a result of concession by the Counsel, has resulted in an error apparent on the
face of record and the discovery of a new matter, which was not earlier known to the
Petitioners. Considering that it is the Courts duty to bring justice to the one who has suffered
because of mistake of Court. The present judgment being per incuriam and following the
conditions laid down for granting of a review petitions, the present petition is maintainable.
II. PUBLIC INTEREST WRIT PETITION (CIVIL) NO. 1942

OF

2012

IS

MAINTAINABLE

AND

VALID
The petitioner comes to this Honble Court as a stranger with sufficient interest, clean hands
and a bonafide interest. The petitioner is a public spirit individual approaching this Courts
discretionary and extraordinary jurisdiction to set right the grave injustice meted out. The
limited personal interest of the petitioner in the subject matter does not make it an altogether
private litigation as the petitioner has not claimed any relief for itself. In such a circumstance,
all alternative remedies have become inefficacious and thus, the present petition under Art. 32
is maintainable.
III. WHETHER THE SUPREME COURT HAS VIOLATED ARTICLE 14 DUE TO THE
CLASSIFICATION CREATED BETWEEN MINORITY AND NON-MINORITY SCHOOLS
It cannot be justified that the objective of free and compulsory education for financially
weaker sections of the society" be reflected only upon the non-minority educational
institutions and not on the minority educational institutions; there is no rational relation
between the object and the classification. Hence, it is contended that the Supreme Court itself
has violated the right of the petitioner enshrined under Article 14 of the Constitution. The
Supreme Court cannot enforce the clause for 25% reservation only on non-minority unaided
institutions citing protection for the minority unaided institutions under Article 30 of the
Constitution since Right under Article 30(1) is subject to reasonable restrictions under Article
19(6) read with Article 19(1)(g).
MEMORANDUM for PETITIONER
-xii-

-Summary of ArgumentsIV. WHETHER

THE

RTE ACT, 2009

IS

VIOLATIVE OF THE FUNDAMENTAL RIGHTS

GUARANTEED UNDER ARTICLE 19(1)(G) AND WHETHER ARTICLE 15(5)

CONSTITUTIONALLY VALID

AND IN CONSONANCE WITH

AND

21A

THE BASIC STRUCTURE

OF

ARE

THE

CONSTITUTION.
Unaided institutions can legitimately claim unfettered fundamental right to choose the
students to be allowed admissions and the procedure therefore subject to it being fair,
transparent and non-exploitative. The limitation imposed by the RTE Act, 2009 is arbitrary
and beyond the interests of the public. Moreover, it is the obligation of the State and State
alone to provide free and compulsory education.
Article 15(5) breaches the Basic Structure (Rule of equality) by placing the unaided minority
educational institutions on a special footing. Thereby, ousting the balance and structure of the
Constitution by altering the Golden Triangle (Articles 14, 19 and 21). Furthermore, Article
21A, giving rise to Right to Education Act, 2009, has abrogated the Fundamental Right under
Article 19(1)(g), thereby, doing away with the identity of a facet of the Basic Structure.
Hence, The Constitution (Eighty-Sixth Amendment) Act, 2002, is liable to be struck down.

MEMORANDUM for PETITIONER

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ARGUMENTS ADVANCED
1. REVIEW PETITION (CIVIL) NO. 1785 OF 2012 IS MAINTAINABLE AND VALID
The petitioner contends that the judicial review petition is maintainable and valid in the
present case. The Supreme Court derives its authority to review its own judgments under
Article 137 of the Constitution of Konigsberg and Article 145(e) permits the honorable
Supreme Court to frame rules as to the conditions subject to which any judgment or order
may be reviewed. Consequently, Order 40 has been framed empowering the Court to review
an order/ judgment on grounds analogous to Order 47 Rule 1 of the Civil Procedure Code.
The following are the submissions for a review petition to be held maintainable:
A. Discovery of new matter
A review petition would be allowed if there occurs the discovery of new and important matter
or evidence which, after the exercise of due diligence, was not within his knowledge or could
not be produced by him at the time when the decree was passed or order made. 1 New matter
must be capable of altering the judgment, should not be within Petitioners knowledge 2 and
even after the exercise of due diligence, the same could not be produced before the court
earlier.

There has been discovery of following two crucial findings: The unconditional

withdrawal of the issues of constitutionality of Articles 15(5) and 21-A of the Constitution of
Konigsberg was voluntary on the part of the Counsel for the Petitioners; 4 this fact not within
the knowledge of the review Petitioner at the time the judgment was passed.5
B. Clear ignorance of law, error apparent on the face of record
The words of Order 47 Rule 1 of Civil Procedure Code along with numerous judicial
pronouncements lay down very clearly that an error apparent on the face of the record is a
valid ground for the admission of a review petition. It is one which is self-evident and does
not require an examination or argument to establish it;6 where without any elaborate argument
one could point to the error and say here is a substantial point of law and there could
1

Order 47 Rule 1, CPC; Aribam Tuleshwar Sharma v Aibam Pishak Sharm (1979) 4 SCC 389.
Shanmugam Servai v P. Periyakaruppan Servai AIR1996 Mad 411, 414.
3
State of West Bengal v Kamal Sengupta (2008) 8 SCC 612; Inderchand Jain through L.Rs. v Motilal through
L.Rs (2009)14 SCC 663.
4
Problem File, 5.
5
Problem File, 8.
2

Liatuk K. Vyas v Surut Borough Municipality AIR 1953 Bom 133 (R).

MEMORANDUM for PETITIONER

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reasonably be no two opinions, entertained about it; 7 if the law that is applied is not the law
which is applicable.8 It is appropriate to bring to light the fact that on 6-09-2012, the three
judge bench took the view that the matter needed to be referred to a Constitution Bench of
five judges9. Subsequently, even before the Counsel on behalf of the Petitioner had conceded
the withdrawal of the challenge to the constitutional validity of Articles 15(5) and 21-A, the
three judge bench had opined that they are not in favor of referring the case to a five judge
bench.10 Thereafter, the Petitioner humbly submits that the Court has acted in grave ignorance
of law.
C. Rectification of mistake of Court necessary for sake of justice
The Court can exercise the power of review in a petition if its directions have resulted in the
deprivation of fundamental rights of a citizen or any legal right of the petitioner because noone can be forced to suffer because of the mistake of the Court. 11 It is exercised to remove the
error and not for disturbing finality.

12

The Court shall not be precluded from exercising its

inherent power to refer a constitutional question for opinion of the Constitutional Bench
under the proviso to Article 145(3) of the Constitution of Konigsberg. An application for
review was accepted on the ground that the judgment involved a decision on constitutional
matters which should have been dealt with by a Constitution Bench. 13 This further supports
the Counsels contention that the Petitioners have been denied their Fundamental Right under
Article 32 of the Constitution, thus, justice requires that the review be granted and the case be
referred to an appropriate forum.
D. Judgment Per Incuriam
Per incuriam means, through inadvertence or through want of care;14 these are judgments
given in ignorance or forgetfulness of some statutory provision or some binding authority, so
that, some part of the decision or some step in the reasoning of decision is found to be
demonstrably wrong.15 The Court here has been inadvertent towards the following two
7

Thungabhadra Industries Ltd. v Govt. of A.P. (1964) 5 SCR 174.

Shatrunjit v Md Azamat, A 1971 SC 1474.
9
Problem File, 4.
10
Problem File, 5.
11
Lily Thomas v Union of India AIR 2000 SC 1650.
12
S. Nagaraj v State of Karnataka (1993) Supp. 4 SCC 595.
13
Behram v State of Bombay (1955) SCR 613.
8

14
15

P Ramanatha Iyer, The law Lexicon (2nd edition rep., Wadwa Nagpur, 2006).
A R Antulay v R S Nayak (1988) 2 SCC 602.

MEMORANDUM for PETITIONER

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consistent statutory provisions: (i) Article 145(3) of the Constitution, which requires the
constitution of a Constitutional Bench in matters involving substantial question of law; (ii)
The basic structure doctrine of the Constitution which requires that the fundamental rights
under Part III of the Constitution cannot be infringed. Thus, it can be established that the
judgment dated 12-4-2012 is per incuriam.
It is hard to see what practical difference it makes to differentiate between judgments which
are erroneous for some other reason and judgments which are erroneous as they were
rendered in ignorance of law, statutory or judge-made i.e. rendered per-incuriam.16 Therefore,
a per incuriam judgment will qualify to come within the domain of error apparent on the
face of the record, as necessary for the maintainability of the review petition.
Moreover, Following the aforesaid line of arguments, it is the humble submission of the
Counsel on behalf of the Petitioner that this review petition be allowed.
2. PUBLIC INTEREST WRIT PETITION (CIVIL) NO. 1942

OF

2012 IS MAINTAINABLE AND

VALID
It is respectfully submitted that public interest writ petition no. 1942 of 2012 filed by the
Society of Free Educational Institutions is maintainable and valid, on the following grounds:
A. The petitioner has locus standi in invoking the jurisdiction of the Court
Particularly on the issue of locus standi no hard and fast rules have been formulated and no
comprehensive guidelines have been evolved.17 PIL has been liberally interpreted in the field
of public interest litigation to allow any standing to any pro bono publico.18 The court in
furtherance of its mechanism of public interest litigation has relaxed the traditional rule of
locus standi wherein only the aggrieved party may have approached the court for redressal.
The person approaching the court must act bona fide and not for personal gain or private
profit or political motive or any oblique consideration. 19 Petitioner must not be indulging in
vexatious litigation.The restricted meaning of the aggrieved party and narrow outlook of

16

State of Gujarat v Essar Oil limited (2012) 3 SCC 522.

Janta Dal v H.S Chouddhury 1993 SCC (Cri) 36.
18
S.P.Gupta v Union of India 1981 Supp SCC 87.
17

19

S.P.Gupta v Union of India 1981 Supp SCC 87; Janta Dal v H.S Choudhury 1993 SCC (Cri) 36 ;Subhash
Kumar v State of Bihar AIR 1991 SCW 121.

MEMORANDUM for PETITIONER

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specific injury has yielded in favor of broad and wide construction in wake of public interest
litigation.20
In the present case, the petitioners are a group of private unaided non-minority educational
institutions21 and as section 12(1)(c) of the RTE Act, 2009 directly effects those who belong to
the unaided non-minority schools within the territory of India 22, the Petitioners have locus
standi in the present case, thus proving the PIL maintainable.
B. Violation of fundamental Rights guaranteed under Part III of the Constitution
The chief Justice as a master of roster has violated fundamental rights guaranteed under part
III of the Constitution particularly Article 14, Article 21 and Article 32 which forms the basic
structure. For the violations of the said fundamental rights, the petitioner has approached this
forum.
B.1. Violation of fundamental rights by Master of the Roster
The petitioner humbly submits that the Chief Justice is the Master of the Roster; he alone
has the prerogative to constitute benches of the court and allocate cases to the benches so
constituted.23 He does so while acting on the Administrative side of the Judiciary.24 In the
exercise of its non-judicial functions, the judiciary falls within the definition of state under
Article 12 of the Constitution of Konigsberg. 25 The Chief Justice of India or of High Courts,
while exercising their administrative powers, shall be amenable to the writ jurisdiction if the
same happens in violation of the equality clause of the Constitution. 26 A judge in his
administrative capacity falls within the chapter of Fundamental Rights.27 The minimum
number of Judges who are to sit for the purpose of deciding any case involving a substantial
question of law as to the interpretation of this Constitution or for the purpose of hearing any
reference under Article 145(3) shall be five. In Chunilal and Sons Ltd. v Century Spinning
Co28., the test for deciding the substantial question of law was dicussed: whether it is of
general public importance or whether it directly and substantially affects the rights of the
parties.
20

Bangalore Medical trust v B S Muddappa AIR 1991 SC1902.

Problem File, 9.
22
Problem File, 2.
23
State of Rajasthan v Prakash Chander 1998 CriLJ 2012.
24
Problem File, 9.
25
VN. Shukla, Constitution of India (11th edn., Eastern Book Company, 2011) 35.
26
Naresh S Mirajkar v State of Maharashtra AIR 1967 SC 1.
21

27
28

Ibid.
Chunilal and Sons v Century Spinning Ltd AIR 1962 SC 1314.

MEMORANDUM for PETITIONER

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Furthermore, Order XXXV(1)(1) of the Supreme Court Rules clearly states that it is
essential to have a constitutional bench for hearing of any case filed under Article 32. It is
evident from the facts of the given case that the issue involved a substantial question of law
since Article 15(5) and Article 21-A, both of whose constitutional validity had been
challenged by the Petitioner, certainly are matters of prime public importance. The Chief
Justice, in his capacity as the Master of the Roster, in complete violation of Article 145(3)
proceeded with a three-judge bench to decide the matter on a specious and unconvincing
ground that the court was too busy. Hence, the Chief Justice, acting arbitrarily, has violated
the Fundamental Right of the Petitioners under Article 14, 21 and 32 of the Constitution for
having denied them a hearing on their Fundamental Rights.
B.2 Violation of Article 32 as part of the basic structure of the constitution
The petitioner humbly submits that Article 32 guarantees Right to be heard as a fundamental
right wherein any person can approach the Supreme Court for enforcement of his Rights.
Article 32 also guarantees fair and just hearing to every citizen. 29 The power of Supreme
Court under Article 32 forms the basic structure of the constitution 30. Therefore, any act
which leads to denial of fair hearing in any case leads to violation of the basic structure.
Moreover, the powers of this court under Article 32 are plenary powers and are not fettered
by any legal constraints.31 If the Court in exercise of these powers has itself committed a
mistake it has the plenary power to correct its own mistake. 32 Furthermore, Article 10,
Universal

Declaration

of

Human

Rights

(UDHR)

(1948),

proclaims:

Everyone is entitled in full equality to a fair and public hearing by an independent and
impartial tribunal, in the determination of his rights and obligations and of any criminal
charge against him.
B.3 Violation of Article 14
Article 14 requires the observance of the principles of natural justice 33, which is a part of the
Basic Structure doctrine.

34

One of the most important aspects of natural justice is the

principle of Audi alteram partem or the rule of fair hearing, which is a part of Article 14. 35
29

M P Jain, Indian Constitutional Law (volume 1, 5th edn., Wadhwa and company Nagpur, 2003) 842.
Delhi Judicial Service Association v State of Gujarat AIR 1991 SC 2176.
31
Common Cause, a registered society v Union of India (1999) 6 SCC 667.
32
S. Nagaraj v State of Karnataka 1994 SCC (L&S) 320.
33
Maneka Gandhi v Union of India AIR 1978 SC 597.
34
Central Inland Water Transport Corporation Ltd. v Brajo Nath AIR 1986 SC 1571.
35
Cantonment Board Dinapore v Taramani Devi AIR 1992 SC 61.
30

MEMORANDUM for PETITIONER

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Hence, violation of principles of Natural justice would lead to the violation of Basic structure
of the Constitution. Article 14 protects against any arbitrariness. Hearing must be fair and is
necessary to avoid arbitrariness.36

Thus one of the objectives of giving a hearing in

application of the principles of natural justice is to see that an illegal action or decision does
not take place.37 Any wrong order may adversely affect a person and it is essentially for this
reason that a reasonable opportunity may have been granted before passing an administrative
order.38 Therefore, the Chief Justice as Master of the Roster had violated their Fundamental
Right to equality and equal protection of laws under Article 14 of the Constitution by refusing
to refer the matter to a Constitutional Bench on grounds that are absolutely unacceptable.
B.4 Violation of Article 21
The Honourable Supreme Court has held that no law could be made which results in
depriving the court of bare legitimate jurisdiction conferred by procedure established by law.
In furtherance the Chief Justice has denied the right to fair trial which is guaranteed under
Article 21. Procedure established by law contemplated in Article 21 must answer test of
reasonableness, and should be in conformity with principles of natural justice. 39 In this
backdrop the Chief justice being denied the Actual procedure established by law has violated
article 21.
C. The Petitioner has sufficient interest in the present case for invoking the
jurisdiction of the Court.
C.1. There is sufficient interest of the petitioners in the present case
It is essential in a PIL that the person filing it should have sufficient interest in the matter
which is before the court.40 The petitioners responsibility in relation to the subject of the
petition is recognised and hence is a strong indication of sufficient interest. Any member of
the public having sufficient interest can maintain an action for judicial redress for public
injury arising from breach of public duty or from violation of some provision of the
Constitution or the law and seek enforcement of such public duty and observance of such
constitutional or legal provision.41
36

S P Sathe, Administrative Law (7th edn., Lexis Nexis Butterworths Wadwa Nagpur, 2006) 187.
I.P.Massey, Administrative Law (7th edn., eastern book company, 2008) 217.
38
BALCO Employees Union v Union of India (2002) 2 SCC 333.
39
M. Nagaraj v Union of India (2006)8 SCC 212.
37

40
41

S.P. Gupta v Union of India AIR 1982 SC 149.

S P Gupta v Union of India AIR 1982 SC 149.

MEMORANDUM for PETITIONER

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In the present case, the society of free educational institutions comprises of those institutions
which belong to the non-minority section of schools in Konigsberg. 42 Right to fair hearing
being denied of the Petitioners of W.P.1066 of 2010 and henceforth the decision being
imposing a burden on the petitioners of the present case has testified the presence of
sufficient interest of the petitioners in the present case.
C.2 Presence of personal motive alone is not sufficient to reject petition otherwise
in public interest.
Arguendo, even if it is accepted that there may be a personal interest of the petitioner
involved in the present circumstance, the petition cannot be rejected keeping in mind the
nature of the petition which seeks to redress larger public injury. If the Court is satisfied that
the questions raised are of sufficient public interest , then the issue of locus standi of the
person placing relevant facts and materials before the Court becomes irrelevant. 43 Public
spirited citizens having faith in the rule of law are rendering a great social and legal service
by espousing cause of public nature. They cannot be ignored or overlooked on technical or
conserving yardstick of the rule of locus standi or absence of personal loss or injury.44 In a
plethora of cases, the Courts have allowed writ petitions as public interest litigation despite
their being a private interest of the petitioner also being involved.45
Arguendo, the petitioner might have moved the court in his private interest for redressal of
the personal grievances, the court in furtherance of public interest may treat it necessary to
inquire into the state of affairs of the subject of litigation in the interest of justice. 46 Hence it
is submitted that even if a personal interest of the petitioner in the present case is involved,
keeping in mind the larger questions of public injury the present petition must be admitted
and a valid cause of action exists. Thus, the petitioners humbly submit that the said public
interest writ petition is maintainable and valid.

42

Problem File, 9.
NagaraholeBudakhattuHakku v State AIR 1997 Kant 288.

43

44

Bangalore Medical Trust v B.S. Muddappa (1991) 3 JT (SC) 172.

Mehsana District Central Co-operative Bank Ltd. v State of Gujarat AIR 2004 SC 1576; M.S Jayaraj v
Commisioner of Excise, Kerala AIR 2000 SC 3266; Tarak Singh v JyotiBasu AIR 1999 Cal 354; Indian Banks
Association,Bombay v Devkala Consultacy Service AIR 2004 SC 2615.
46
ShivajiraoNilangekarPatil v Mahesh MadhavGosavi (1987) 1 SCC 227.
45

MEMORANDUM for PETITIONER

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3. THE SUPREME COURT

KONIGSBERG

HAS VIOLATED

ARTICLE 14

OF THE

CONSTITUTION

OF

DUE TO THE CLASSIFICATION CREATED BETWEEN MINORITY AND NON-

MINORITY SCHOOLS.

The two expressions equality before the law and the equal protection of laws guaranteed
under Article 14 are a declaration of the absence of any special privileges in favor of any
individual and of equal protection of all persons in the enjoyment of their rights and
privileges without favoritism or discrimination. 47 The application of Article 14 is subject to
the following:
A. Test of classification
There is a test to determine the constitutionality of a provision under Article 14 that equals
have to be treated equally and un-equals ought not to be treated equally. 48 In the case of R.K
Garg v. Union of India,49 it was said that the test of classification of Article 14 must not be
arbitrary but must be rational. In order to pass the test of classification under Article 14, the
classification should be based on intelligible differentia50 and that there must be a nexus
between the basis of classification and the object of the Act under consideration.51
The object of the Right to Education Act, 2009 which has been enacted in terms of Article
21A, is to remove all barriers (including financial barriers) which impede access to
education52. The children belonging to financially weaker sections of the society in the
neighborhood will be provided with admission to class I, to the extent of 25% of the strength
of the class and free and compulsory elementary education till its completion.
Now, it is appropriate to notify that, the object sought to be achieved here is none other than
free and compulsory education for financially weaker sections of the society" as has been
held by the Court. It cannot be justified that such objective be reflected only upon the nonminority educational institutions and not on the minority educational institutions; there is no
rational relation between the object and the classification. Hence, it is contended that the
Supreme Court itself has violated the right of the petitioner enshrined under Article 14 of the
Constitution.
47

Dr. L.M. Singhvi, Constitution of India (Volume 1, 2nd edn.,Modern Law Publications, 2006).
Motor General Traders v State of A.P (1984) 1 SCC 222.
49
R.K Garg v Union of India (1981) 4 SCC 675, 689-690.
50
Budhan Choudhary v State of Bihar AIR 1955 SC 191..
51
State of West Bengal v Anwar Ali Sarkar AIR 1952 SC 75.
52
Society for Un-aided Private Schools of Rajasthan v UOI & Anr (2012) 6 SCC 1, 46.
48

MEMORANDUM for PETITIONER

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B. Not guarded by Article 30(1)

The provisions of Article 30(1) of the Constitution of Konigsberg seems to protect the
classification as laid down in the RTE Act, 2009.
But, in the case of T.M.A Pai Foundation v State of Karnataka53, the Court made it clear that
the right under Article 30(1) is not absolute and it has to be read subject to Article 29(2) and
other fundamental rights. It was also said by the Supreme Court of India that the Right under
Article 30(1) is subject to reasonable restrictions under Article 19(6) read with Article 19(1)
(g). The power to regulate is not unlimited so as to destroy the other rights conferred under
Part III of the Constitution.54
Therefore, the Supreme Court cannot enforce the clause for 25% reservation only on nonminority unaided institutions citing protection for the minority unaided institutions under
Article 29 and Article 30 of the Constitution. Hence, it is submitted that the Supreme Court,
which is the sentinel on the qui vive of individual fundamental rights, had itself violated the
fundamental right of the petitioners.
4. ARTICLE 15(5) AND 21-A VIOLATE THE BASIC STRUCTURE OF THE CONSTITUTION
A. Article 15(5) violates the Basic Structure Doctrine
It can be established through the following submissions that Article 15(5) violates the two
basic principles of the Basic structure Doctrine:
A.1 Principle of Equality is being violated
It is an established principle now that the power to amend of the Legislature could not be
used to alter the basic features of the Constitution55. Also, the Rule of Equality is part of the
Basic Structure of the Constitution and the Legislature cannot transgress the principle of
equality enshrined in Article 14. 56 In order to pass the test of classification under Article 14,
the classification should be based on intelligible differentia57 and that there must be a nexus
between the basis of classification and the object of the Act under consideration.58
53
54

TMA Pai Foundation v State of Karnataka (2008) 8 SCC 481

Sindhi Education Society v. Govt (NCT of Delhi) 2010 8 SCC 49

55

Kesavananda Bharti v State of Kerala AIR 1973 SC 1461.

Indra Sawhney v Union of India (2000) 1 SCC 168, 64, 65.
57
Budhan Choudhary v State of Bihar AIR 1955 SC 191..
58
State of West Bengal v Anwar Ali Sarkar AIR 1952 SC 75.
56

MEMORANDUM for PETITIONER

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It has to be seen here, that the primary objective of Article 15(5) is to promote the educational
advancement of the socially and educationally backward classes of citizens, or the SC and ST
in matters of admission in educational institutions 59. Moreover, "So far as appropriation of
quota by the State and enforcement of its reservation policy is concerned, we do not see much
of a difference between non-minority and minority unaided educational institutions.60
Hence, Article 15(5) breaches the Rule of Equality enshrined in the Basic Structure of the
Constitution by placing the unaided minority educational institutions on a special footing and
exempting it from bearing the common burden of reservation for Scheduled Castes,
Scheduled Tribes and Socially and Educationally Backward Classes which is hostile,
discriminatory and without a nexus with the object sought to be achieved. Every state action
must be non-arbitrary and reasonable. Otherwise, the court would strike it down as invalid61.
A.2. Article 30(1) is not an absolute right
The right conferred on the minorities by Article 30(1) is not absolute. It has to be read subject
to Article 29(2) and other Fundamental Rights. 62 The time power to regulate is not unlimited
so as to destroy the other rights conferred under Part III of the Constitution. 63 The Supreme
Court found it difficult to comprehend that the framers of the Constitution would have given
such an absolute right to the religious or linguistic minorities which would enable them to
establish and administer institutions in conflict with other Parts of the Constitution.
Therefore, the Court reiterated the fact that the right under Article 30(1) is not absolute.64
Hence, the action of the State to exempt the unaided minority educational institutions from
the purview of Article 15(5) by citing protection under Article 30(1) stands negated. It is
submitted that the Constitution (Ninety-Third Amendment) Act, 2005 abrogates the equality
principles guaranteed under Article 14 and it would be against the "basic structure" of the
Constitution as it violates the Principle of Equality.
A.3. Article 19(1)(g) is a facet of Basic Structure

59

Indra Sawhney v Union of India (2000) 1 SCC 168, 64, 65.

Budhan Choudhary v State of Bihar AIR 1955 SC 191..
State of West Bengal v Anwar Ali Sarkar AIR 1952 SC 75.
Statement of Objects and Reasons, (Ninety-Third) Constitutional Amendment Act, 2005.
60
PA Inamdar & Ors. v State of Maharashtra & Ors AIR 2005 SC 3226. Para 121.
61

Ajay Hasia v Khalid Mujib AIR 1981 SC 487.

TMA Pai Foundation & Ors v State of Karnataka & Ors (2002) 8 SCC 481.
63
Sindhi Education Society v Govt (NCT of Delhi) 2010 8 SCC 49.
64
Ibid.
62

MEMORANDUM for PETITIONER

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In the case of Minerva Mills v. Union of India, Justice Chandrachud had remarked, Three
Articles of our Constitution, and only three, stand between the heaven of freedom into which
Tagore wanted his country to awake and the abyss of unrestrained power. They are Articles
14, 19 and 21. Therefore, it is contended that the Golden Triangle of Articles 14, 19 and 21
is not to be altered and the balance and structure of these constitutional provisions has been
ousted by the Constitution (Ninety-Third Amendment) Act, 2005. Individual liberty and
freedom, as protected by the Golden Triangle, must carry greater weight for those who set off
on their own and refuse Government money.65
Addressing the question as to whether the 93rd Amendment violated the Basic Structure of
the Constitution by imposing reservation on unaided institutions, Justice Bhandari 66 explicitly
said, The 93rd Amendment's imposition of reservation on unaided institutions has abrogated
Article 19(1)(g), a basic feature of the Constitution, in violation of our Constitution's basic
structure. Therefore, I sever the 93rd Amendment's reference to "unaided" institutions as
ultra vires of the Constitution. The right to select students on the basis of merit is an essential
feature of the right to establish and run an unaided institution. The effect of the 93rd
Amendment is such that Article 19 is abrogated, leaving the Basic Structure altered
B. Article 21-A violates the Basic Structure Doctrine
It is a well established principle that the Constitution can be amended only if it does not alter
its Basic Structure.67 It can be laid down from the following line of arguments that The
Constitution (Eighty-Sixth Amendment) Act, 2002, by which Article 21-A was inserted in the
Constitution, violates the Basic Structure of the Constitution:
An amendment alters the Basic Structure if its actual or potential effect would be to damage a
facet of the Basic Structure to such an extent that the facets original identity is
compromised.68 If amendments clear the way for future legislation that would in fact violate
the basic structure, the court need not wait for that potential violation to become an actual
one.69

65

Ashoka Kumar Thakur v Union of India (2008) 6 SCC 1.

Society for Un-aided Private Schools of Rajasthan v Union of India (UOI) and Anr. (2012) 6 SCC 1.
67
Kesavananda Bharti v State of Kerala AIR 1973 SC 1461.
68
Ashoka Kumar Thakur v Union of India (2008) 6 SCC 1.
69
Ibid.; M P Singh, Ashoka Thakur: A Divided Verdict on an Undivided Social Justice Measure [2008]
NUJSLawRw 13.
66

MEMORANDUM for PETITIONER

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Article 21-A has given way to RTE Act, 2009, which abrogates the Fundamental Right of the
Petitioners under Article 19(1)(g). Thus, it damages a facet of the Basic Structure to an extent
that the facets original identity is done away with. Hence, The Constitution (Eighty-Sixth
Amendment) Act, 2002, in this case, paves way for a legislation which in turn violates the
basic structure and hence, is liable to be struck down.
Also, the very content of Article 21A comes from reading of Articles 41, 45 and 46 included
in Part IV of the Constitution. 70 The goals set out in Part IV have to be achieved without the
abrogation of the means provided for by Part III. It is in this sense that Parts III and IV
together constitute the core of our Constitution and combine to form its conscience. Anything
that destroys the balance between the two parts will ipso facto destroy an essential element of
the basic structure of our Constitution. 71 Therefore, it can be deduced that Article 21A
violates the Basic Structure of the Constitution.
C. THE RTE ACT, 2009 IS VIOLATIVE OF ARTICLE 19(1)(g) OF THE
CONSTITUTION.
C.1. Quality of education is important
Private institutions are expanding in scope and number, and are becoming increasingly
important in parts of the world that relied almost entirely on the public sector. 72 Considerable
money by way of capital investment and overhead expenses would go into for establishing
and maintaining a good quality unaided educational institution. 73
The fixing of a rigid fee structure, dictating the formation and composition of a government
body, compulsory nomination of teachers and staff for appointment or nominating students
for admissions would be unacceptable restrictions.74 Unaided institutions can legitimately
claim unfettered fundamental right to choose the students to be allowed admissions and the
procedure therefore subject to it being fair, transparent and non-exploitative. 75 It is therefore
contended that the Right to Education Act, 2009 imposes an unreasonable restriction on the
right of the Petitioner under Article 19(1)(g) of the Constitution.
C.2. Right to establish and administer educational institutions
70

Society for Un-aided Private Schools of Rajasthan v Union of India & Anr. (2012) 6 SCC 1 46
Minerva Mills v Union of India AIR 1980 SC 1789 62; PK Tripathi, Directive Principle of State Policy: The
Lawyers Approach to Them Hitherto Parochial, Injurious and Unconstitutional 1954 SCJ 7.
72
T M A Pai Foundation & Ors. v State of Karnataka & Ors. (2002) 8 SCC 481.
73
Society for Un-aided Private Schools of Rajasthan v Union of India (UOI) and Anr. (2012) 6 SCC 1.
74
T.M.A Pai Foundation & Ors. v State of Karnataka & Ors. (2002) 8 SCC 481.
75
P.A Inamdar & Ors v State of Maharashtra & Ors. AIR 2005 SC 3226.
71

MEMORANDUM for PETITIONER

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The right of the minority institution to admit students of its own community is a necessary
concomitant right which flows from the right to establish and administer educational
institutions under Article 30(1).76 It has to be seen here that Right of the Petitioner under
Article 19(1)(g) has been violated as it has taken away the Right to admit students which is
an integral part of Right to establish and administer educational institutions as held by the
Supreme Court of India.
C.3. Unreasonable restriction
It is the effect of law which constitutes the test of its reasonableness; its object, whether good
or bad, is immaterial for this purpose. 77 Therefore, to test the reasonableness of the said Right
to Education Act, 2009, what is to be seen here is that the said Act is directly violating the
fundamental rights of the Petitioner to run and administer educational institutions under
Article 19(1)(g) of the Constitution. The object behind the legislation will be immaterial
while testing the reasonableness of the legislation.
Legislation which arbitrarily or excessively invades the right cannot be said to contain the
quality of reasonableness and unless it strikes a proper balance between the freedom
guaranteed in Article 19(1)(g) and the social control permitted by Clause (6) of Article 19, it
must be held to be wanting in that quality. 78
It is therefore submitted that the State cannot, by way of the Right to Education Act, 2009
transfer its responsibility on the non-state actors, and thus, violate their rights under Article
19(1)(g) of the Constitution as this would be an unnecessary invasion in to the right of the
petitioner.
C.4. Responsibility of the State alone
It has been made very clear that the State cannot shed its responsibility on private players in
the guise of public interest. Section 12(1)(c) is not a restriction which falls under
Article 19(6) but cast a burden on private unaided educational institutions to admit and teach
children at the state dictate, on a fee structure determined by the State which, in my view,
would abridge and destroy the freedom guaranteed to them under Article 19(1)(g) of the
Constitution. 79 Article 21A imposes a duty on the State, while Article 51A(k) places burden
on the parents to provide free and compulsory education to the children of the age 6 to 14
years.80
76

St. Stephens College v University of Delhi (1992) 1 SCC 558

Kochuni K K v State of Madras AIR 1960 SC 1080; Lakshmi v State of UP AIR 1981 SC 873; Trivedi v
State of Gujarat AIR 1986 SC 1323
78
Chintaman Rao v State of Madhya Pradesh AIR 1951 SC 118.
79
Society for Private Un-Aided Schools v Union of India & Anr (2012) 6 SCC 1.
80
Avinash Mehrotra v Union of India & Ors (2009) 6 SCC 398.
77

MEMORANDUM for PETITIONER

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Article 21A, the result of which is the Right to Education Act, 2009, reads, 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.
The words "state shall provide" are express enough to reveal the intention of the Parliament
to cast an obligation on the State alone to provide free and compulsory education. Also the
expression "State shall provide" not "provide for denote the constitutional obligation on
the State and not on non-state actors. 81 It will be unfair to compel unaided schools of other
private organisations and individuals to provide education to the extent of 25% of their
strength to children of neighbourhood as it will make serious inroad into their right of
administrating their educational institutions. 82
The Supreme Court of India has held that imposition of quota of State seats or enforcing
reservation policy of the State on available seats in unaided professional institutions are acts
constituting serious encroachment on the right and autonomy of private professional
educational institutions. 83
CONCLUSION AND PRAYER FOR RELIEF
In the light of the arguments advanced and authorities cited, the Petitioner humbly submits
that the Honble Court be pleased to adjudge and declare that:
1. The Review Petition No. 1785 of 2012 & the Public Interest Writ Petition 1942 of 2012 is
maintainable and valid.
2. The Constitution (Eighty-Sixth) Amendment Act, 2002 and the Constitution (Ninety-Third)
Amendment Act, 2005 are unconstitutional as they violate the Basic Structure of the
Constitution.
3. Also the Court may provide for any other remedies that the Honble court may deem fit.
All of which is respectfully affirmed and submitted
Sd/Counsel for Petitioner

81

Society for Private Un-Aided Schools v. Union of India & Anr (2012) 6 SCC 1.
Dharmadhikari J, Right to Education (2010) 3 SCC (Jour) 7.
83
PA Inamdar & Ors v State of Maharashtra & Ors AIR 2005 SC 3226
82

MEMORANDUM for PETITIONER

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