JOURNAL OF THE NATIONAL HUMAN RIGHTS COMMISSION, INDIA VOL. 21, 2022 under Article 45 of the Constitution.75 Such a correlation clearly conveys that the provision of education under Article 45 has, in a way, acquired the status of a fundamental right,76 and thereby transforming the State obligation to provide free education into the Fundamental Right of children to receive education. This stance of the Supreme Court, to use the proverbial expression, had awakened the State (the Government and Parliament of India) from its ‘dogmatic slumber’. Through the constitutional amendment, a new Article 21A was introduced, which provides: “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.”77 Alongside, Article 45 was also amended in order to bring its provisions in line with the provisions of the new Article 21A. The new substituted version of Article 45 reads: “The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.”78 Pursuant to these constitutional amendments, the Government and Parliament of India enacted The Right of Children to Free and Compulsory Education Act, 2009 (popularly known as RTE Act 2009) that came into force with effect from April 1, 2010, providing ‘right to education’ to all children of the age of six to fourteen years as their guaranteed enforceable fundamental right by enabling them to seek admission in their neighbourhood schools – government run, government aided, or government unaided private schools! However, this move of providing free and compulsory education to all children was impeded, as the constitutional validity of RTE Act 2009 came to be questioned before the three-Judge Bench of the Supreme Court in Society for Unaided Private Schools of Rajasthan v. Union of India (2012).79 This was done by the private unaided schools on the ground that the provision of the Act, permitting children to seek ‘free education’ to the extent of 30 per cent of the class strength (even with some compensatory provision by the Sate) in their schools violated their fundamental right under 75 76 77 78 79 18 See, Unni Krishnan, J.P. & Ors. v. State of Andhra Pradesh & Ors.,1993 AIR 217, 1993 SCR (1) 594, 1993 SCC (1) 645, a five-Judge bench of the Supreme Court has held that the right to basic education is implied by the fundamental right to life (Article 21) when read in conjunction with the directive principle on education (Articles 41 and 45). This judgement remained unaltered in this interpretation despite its being overruled by the majority court in 11-Judge bench decision in T.M. Pai Foundation (2002) by the majority of 6:5. See, M.C. Mehta v State of Tamil Nadu &Ors., (1996) 6 SCC 756; AIR 1997 SC 699, following the Constitutional Bench decision in Unni Krishnan. Inserted by the Constitution (Eighty-sixth Amendment) Act, 2002, s. 2 (w.e.f. 1-4-2010). Substituted by the Constitution (Eighty-sixth Amendment) Act, 2002, s. 3, for art. 45 (w.e.f. 1-4-2010). (2012) 6 SCC 1, per S.H. Kapadia, CJ, K.S.P. Radhakrishnan and Swatanter Kumar, JJ. Hereinafter simply cited as Society for Un-aided Private Schools.