In a setback to the Kerala government, the Supreme Court has upheld the Kerala High Court judgment that struck down two norms prescribed by the Government of Kerala for the grant of an NOC to new schools for affiliation to the CBSE and for existing schools for renewal of affiliation viz. requirement of minimum 3 acres of land and minimum enrolment of 300 students.
The Challenge
The following two guidelines issued by the Government of Kerala prescribing norms for the grant of an NOC to new schools for affiliation to CBSE and for existing schools for renewal of affiliation under the CBSE affiliation bye-laws, were struck down by the Kerala High Court.

  • The institution should have minimum 3 acres of land, out of which at least 2 acres shall be in the actual location where the school is functioning in a contiguous manner. It should have adequate playground also. There should be a library and adequate number of laboratories.
  • The school should have been in existence for a period of five years as on the date of application for NOC and should have at least 300 students in its rolls. The unique identification (UID) enrolment should be completed and UID numbers of the students enrolled in the school shall be furnished.

Against this judgment, the state had approached the apex court.
Fundamental right to good quality education
Dismissing batch of petitions by the state, Justice Madan B Lokur began his judgment with these observations: “The fundamental right to free and compulsory education to all children between the age of 6 and 14 years postulates good quality education and not just education for the sake of providing education. Regulation of such education is permissible by law and not by executive fiat. Unfortunately, in this batch of petitions, the State of Kerala seeks to impose its authority over schools that provide apparently quality education, which is perceived to be a threat to the public education system in the State.”
CBSE pragmatic, State non-realistic and rigid
The bench, also comprising of Justice Deepak Gupta, observed that State of Kerala could show no basis for the norm that a school seeking a NOC for affiliation to the CBSE must have 3 acres of land, out of which 2 acres should be contiguous and in the actual location of the school. “On the other hand, the CBSE appears to have done its homework in framing the Affiliation Bye-laws and making a realistic assessment of the requirements of schools depending on their location,” the bench observed.
The court also took note of the counter affidavit filed before the single judge of the high court, where the state said that restrictions have been placed on CBSE schools ‘to prevent their mushrooming growth which would affect the public education system in the State’.
‘No details have been given for arriving at this conclusion. But the very fact that there is a mushroom growth of CBSE schools is an indication that the public education system in Kerala as managed by the State Government leaves something to be desired in terms of the quality of the education. How does the restriction imposed by Kerala benefit the children of the State,” the bench asked.
“We can take judicial notice of the fact that in metropolitan and capital cities as well as in hilly areas, it would be difficult to get 3 acres of land or even 2 acres of land. Similarly, due to the terrain it would perhaps be difficult to get adequate land in the North Eastern region of the country as well as in Jammu & Kashmir. This realism deserves to be contrasted non-realistic inflexibility of Kerala which too has some hilly areas where perhaps it might be difficult to find 3 acres of land. It is this lack of pragmatism and arbitrary rigidity that has weighed with the High Court as well as with us in coming to the conclusion that guideline (iv) requiring a minimum of 3 acres of land for obtaining a NOC for getting affiliation in accordance with the Affiliation Bye-laws of the CBSE is arbitrary and was deservedly struck down by the High Court,” the court said.
Kerala expecting an impossibility from CBSE schools
The bench said in absence of any material on record justifying the fixation of a minimum of 300 students in a school seeking a NOC for affiliation to the CBSE, the requirement must be held as arbitrary.
With regard to minimum 300 students’ requirement, the bench said: “It is only for schools seeking CBSE affiliation that it is prescribed that the number of students should not be less than 300. We do not see how, if the number of students is less than 300, it will detract from the quality of education imparted to the students. In other words, the requirement of a minimum strength of 300 students is a completely arbitrary figure arrived at by Kerala and which has no rational nexus with quality education or the CBSE Affiliation Bye-laws”.
The other issue, with respect to the compulsory unique identification (UID) for enrolment of students, the bench said it would await the decision of Constitution Bench which is presently seized of the requirement of UID.