PETITIONER:
UNNI KRISHNAN, J.P. AND ORS. ETC. ETC
Vs.
RESPONDENT:
STATE OF ANDHRA PRADESH AND ORS. ETC. ETC.
DATE OF JUDGMENT04/02/1993
BENCH:
SHARMA, L.M. (CJ)
BENCH:
SHARMA, L.M. (CJ)
BHARUCHA S.P. (J)
PANDIAN, S.R. (J)
JEEVAN REDDY, B.P. (J)
MOHAN, S. (J)
CITATION:
1993 AIR 2178 1993 SCR (1) 594
1993 SCC (1) 645 JT 1993 (1) 474
1993 SCALE (1)290
ACT:
Constitution of India, 1950:
HEADNOTE:
Articles 21, 41, 45 and 46-Right to education-Whether a
fundamental right-Held:Every child/citizen has a tight to
free education up to the age of 14 years and thereafter it
is subject to limits of economic capacity and development of
the State-State obliged to follow directions contained in
Article 45-Article 21 to be construed in the light of
Articles 41, 45 and 46.
Article 21-Right to Education-Whether implicit under the Ar-
ticle-Whether flows from right to life and personal liberty-
Extent and content of the right.
Parts III and IV-Fundamental Rights and Directive
Principles Whether complementary to each other-Whether a
right could be recognised as a fundamental rot even though
not expressly mentioned
Articles 14, 15, 21, 41, 45 and 46-Private unaided
recognised affiliated educational institutions running
professional courses like engineering and medical course-
Whether entitled to charge a fee higher than that charged by
Government institutions-Held:Entitled to charge a higher fee
but such a fee cannot exceed the ceding fixed in this
regard-However, commercialisation of education not
permissible fee-Meaning of.
Whether private aided recognised/affiliated educational
governed by rules and framed by Government in matters of
admission of students and fee chargeable as also recruitment
and conditions of service etc, of teachers and staff.
Whether private recognised/affiliated institutions obliged
to act fairly consistent with Articles 14 and 15 and in
accordance with conditions of grant of recognition
affiliation-Held: as conditions of grant of aid they were
governed by such rules and regulations-Private
institutions receiving aid
595
obliged to act fairly in consonance with fundamental rights
as well as regulations framed by Government-State, while
granting recognition/affiliation obliged to impose
conditions for maintaining standards and ensuring fairness,
inter alia, in respect of fees chargeable and admission.
Admission and charging of capitation fees in private
unaided/aided recognised/affiliated educational institution
conducting professional courses such as medical and
engineering courses-Scheme framed by Court eliminating
discretion of management in admissions in and fees payable
in such institutions and substituting merit of the students
as the sole criterion.
Article 12-Private insupplementing State function viz.,
imparting education-Whether aninstrumentality of State-
"ether public duty performed by it viz,imparting of
education would make it amenable to Pail III, such as
Articles 14 and15.
Articles 19(1)(g) and (6(-Right to establish and run
educational institutions-Whether a fundamental right-
Imparting education-Whether a commercial activity of
establishing an education institution Whether a profession-
Words 'Profession', 'Occupation, 'Trade' and 'Business'-
Meaning of.
Articles 12 14, A 19(1)(g), 21, 30, 41, 45 and 4 ether
private educational institutions have a fundamental right to
recognition/affiliation-Whether such a right can be inferred
by reading into Article 19(1) (g) a right in the of Article
30.
Articles 29 and 30-Rights conferred on minorities in a
positive way-Whether negate the assumption of such rights by
other citizens.
A.P. Educational Institutions (Regulation of Admission and
Prohibition of Capitation Fee) Act 1983.
Section 3-A-Power to grant admission to students who
qualified in entrance/qualifying examination irrespective of
their ranking in the examination and to charge any amount in
addition to tuition fee-Whether violative of Article 14 of
the Constitution.
Karnataka Educational Institutions (Prohibition of
Capitation Fee) Act 1984/Maharashtra Educational
Institutions (Prohibition of Capitation Fee) Act 1987/Tamil
Nadu Educational Institutions (Prohibition of Collec-
596
tion of Capitation Fee) Act 1992. Constitutional validity
of-Held: Constitutional as they do not contain provisions
offending Article 14 of the Constitution.
In the writ petitions flied before this Court, the
correctness of the decision of this Court in the case of
Mohini jain v. State of Karnataka and Others, [1992] 3 SCC
p. 666 was challenged by private educational institutions,
engaged in or proposing to engage in imparting medical and
engineering education in the States of Andhra Pradesh,
Karnataka, Maharashtra and Tamil Nadu.
In Mohini Jain's case, this Court had held, inter alit; that
every citizen has a right to education under the
Constitution; the State was under an obligation to establish
educational institutions to enable the citizens to enjoy the
said right; the State may discharge its obligation through
State owned or State-recognised educational institutions;
that when the State Government granted recognition to the
private educational institutions, it created an agency to
fulfil its obligation under the Constitution, that charging
capitation fee in consideration of admission to educational
institutions, was a patent denial of a citizen's right to
education under the Constitution and that the State action
in permitting capitation fee to be charged by State-
recognised educational institutions was wholly arbitrary
and, as such, violative of Article 14 of the Constitution;
that the capitation fee brought to the fore a clear class
bias; and that when the State Government permitted a private
medical college to be set up and recognised its curriculum
and degrees, then the said college was performing a funtion
which under the Constitution had been assigned to the State
Government and If the State permitted such institution to
charge higher fee from the students, such a fee was not
tuition fee, but in fact a capitation fee.
The aforesaid decision was followed by the Full Bench of the
A.P. High Court in Kranti Parishad v. N.J. Reddy, [1992] 3
ALT " while allowing the writ petitions filed before it
challenging the permission granted by the State Government
for the establishment of private Medical and Dental Colleges
in the State and also the constitutional validity of section
3-A of the Andhra Pradesh Educational Institution
(Prohibition of Capitation Fee) Act, 1983. The respondents
before the High Court, including the State, riled Special
Leave Petitions against the High Court's judgment Besides
several writ petitions questioning the correctness of the
decision of this Court in Mohini Jain's case also were
flied.
597
The validity of the State enactments of Karnataka, Tamil
Nadu and Maharashtra and the notifications issued thereunder
on the subject of charging of excess fee from the students
was also questioned In the writ petitions, civil appeals and
Special Leave Petitions filed before this Court.
It was contended that (a) the State had no monopoly in the
matter of imparting education; every citizen had the
fundamental right to establish an educational institution as
a part of the right guaranteed to him by Article 19(1)(g) of
the Constitution, which extended even to the establishment
of an educational institution with a profit motive i.e., as
a business adventure; the said right was absolute-subject,
of course, to such reasonable restrictions as may be placed
upon it by a law within the meaning of clause (6) of Article
19; (b) the vice was not in the establishment of educational
institutions by individuals and private bodies but in
unnecessary State control; the law of demand and supply must
be allowed a free play, (c) the establishment of an
educational institution was no different from any other
venture eg., starting a business or Industry, It was
immaterial whether the institution was established with or
without profit motive; only when there was profit motive
that persons with means would come forward to open more and
more schools and colleges; (d) even If It was held that a
person had no right to establish an educational institution
as a business venture, he had atleast the right to establish
a self-financing educational institution, which institution
might also be described as one providing cost-based
education; and thus, it was open to a person to collect
amounts from willing parties and establish an institution to
educate such persons or their children, as the case may be;
the quantum of the fees to be charged in such institution
should be left to the concerned institution and the
Government should have no say in the matter, it was not
possible for the Court in the very nature of things, to go
into the issue; these private educational institutions were
providing a large number of 'free seats' to the nominees of
the Government, and all these students would not have had an
opportunity of studying the course of their choice but for
the existence of these private educational institutions; (e)
in these circumstances, Mohini Jain's case was not right in
saying, that charging of any amount, by whatever name it was
called, over and above, the fee charged by the Government in
its own colleges, must be described as capitation fee, and
saying so amounted to imposing an impossible condition, it
was not possible for the private educational institutions to
survive if they were compelled to charge only that fee as
was
598
charged in Governmental institutions; the cost of educating
an engineering or a medical graduate was very high; all that
cost was home by the State in Governmental Colleges; since
the State was not subsidising the private educational
institutions, these institutions had to find their own and
that could come only from the students; (f) even if the
right to establish an educational institution was not trade
or business within the meaning of Article 19(1) (g), it was
certainly an 'occupation' within the meaning of the said
clause; the use of the four expressions-profession,
occupation, trade or business in Article 19(1)(g) was meant
to cover the entire field of human activity, and the
petitioners had the right to establish private educational
institutions- at any rate, self-financing/cost-based private
educational institutions, which would be restricted only by
a law as contemplated by clause (6) of Article 19; (g) the
right to establish and administer an educational institution
(by a member of the minority community, religious or
Lnguistic) arose by necessary implication from Article 30;
the Constitution could not have intended to confine the said
right only to minorities and deprive the majority
communities therefrom; (h) the Government or the University
could insist or stipulate as a condition of
recognition/affiliation that the private educational
institutions should admit students exclusively on merit:
moreover, there might be several kinds of private
educational institutions which might be established for
achieving certain specified purposes viz., to cater to the
needs of a particular region or a district, or to educate
children of members of a particular community, (1) by virtue
of mere recognition and/or affiliation these private
educational institutions did not become instrument of the
State within the meaning of Article 12 of the Constitution;
the concept of State action could not be extended to those
colleges so as to subject them to the discipline of Part
111; it might be a different matter V the institution was in
receipt of any aid, partially and wholly, from the State; in
such a situation, the command of Article 29 (2) came into
play, but even that did not oblige the institution to admit
the students exclusively on the basis of merit but only not
to deny admission to anyone on any of the, grounds mentioned
therein, and (i) that Article 21 was negative in character
and it merely declared that no person should be deprived of
his life or personal liberty except according to the
procedure established by law, and since the State was not
depriving the respondents-students of their right to
education, Article 21 was not attracted.
On behalf of the respondents and the Indian Medical Council
and
599
All India Council for Technical Education it was contended
that; (a) imparting of education bad always been recognised
from does immemorial as the religious duty and also as a
charitable object, and as a trade or , business, it was a
mission and not a trade, and commercialisation of education
has always been looked upon with disfavour, the Parliament
expressed its intention by enacting In 1956 the University
Grants Commission Act which specified the prevention of cow
motion of education as one of the duties of the University
Grants Commission which Intention had also been expressed by
several enactment made by the Parliament and State
Legislatures since then; (b) imparting of education was the
most important function of the State which duty might be
by State directly or through the instrumentality of private
educational Institutions; but when State permitted a private
body or an individual to perform the said function, It was
its duty to ensure that so one got an admission or an
advantage on account of his economic power to the detriment
of a more meritorious candidate; (c) the very concept of
collecting the cost of education that was what the concept
of cost-based or self-financing educational Institutions
meant- was morally abhorrent and was opposed to public
policy-, a capitation fee did not cease to be a capitation
fee just because it was called as cost-based education or by
calling the Institution concerned as a self-fianacing
Institution; these expressions were but a over for
collecting capitation fee-, It was nothing but exploitation,
and, was an elitist concept basically opposed to the
constitutional philosephy; the concept suffered from class
bias and by allowing such education, two classes would come
Into being; (d) even If It was held that a citizen or a
person had a dot to establish an educational institution,
the said right did not carry with it the right to
recognition or the right to affiliation, as the case may be;
even a minority educational institution was held by this
Court to have no fundamental right to recolor affiliation;
hence such a right could not be envisaged in the case of
majority community or In the case of individuals or persons,
and it was open to the State or the University according
recognition or affiliation to impose such conditions as they
think appropriate in the Interest of fairness, merit,
maintenance of standards of education and so on, Including
that the admission of students, In whichever category It
might be, should be on the basis of merit and merit alone;
the Institutions obtaining recognition/affiliation would be
bound by such condition and any departure therefrom rendered
the recognition/affiliation liable to be withdrawn;
600
and (e) even if such a condition was not expressly imposed,
it was implicit, by virtue of the fact that in such a
situation, the activity of the private educational
institution was liable to be termed as State action; the
fact that these institutions performed an important public
function coupled with the fact that their activity was
closely inter-twined with governmental activity,
characterised their action as State action; at the minimum,
the requirement would be to act fairly in the matter of
admission of students and probably in the matter of
recruitment and treatment of its employees as well; these
institutions were further bound not to charge any fee or
amount over and above what was charged in. similar
governmental institutions; and if they needed finances, they
must find them through donations or with the help of
religious or charitable organisations and they could not
also say that they would first collect capitation fees and
with that money, they would establish an institution; at the
worst, only the bare running charges could be charged from
the students and the capital cost could not be charged from
them.
On behalf of the Government of India it was submitted that
the Central Government did not have the resources to
undertake any aditional financial responsibility for medical
or technical education; it was unable to aid any private
educational institution financially at a level higher than
at present; therefore, the policy of the Central Government
was to involve private and voluntary efforts in the
education sector in conformity with accepted norms and
goals; however, the private educational institutions could
not be compelled to charge only that fee as was charged in
Governmental institutions; so far as engineering colleges
were concerned, permission was being granted by the
A.I.C.T.E. subject to the condition that they did not
collect any capitation fee;
It was also submitted that (a) conferring unconditional and
unqualified right to education at all- levels to every
citizen involving a constitutional obligation on the State
to establish educational institutions either directly or
through State agencies was not warranted by the Con-
stitution besides being unrealistic and impractical; (b)
when the Government granted recognition to private
educational institutions it did not create an agency to
fulfil its obligations under the Constitution and there was
no scope to import the concept of agency in such a
situation; (c) the principles laid down in Mohini Jain's
case required reconsideration; (d) it would be unrealistic
and unwise to discourage private initiative in provid-
601
ing educational facilities particularly for higher
education. The private section should be involved and
indeed encouraged to augment the much needed resources in
the field of education, thereby making as much progress as
possible in achieving the Constitutional goals in this
respect; (e) at the same time, regulatory controls had to be
continued and strengthened in order to prevent private
educational institutions from commercialising education; (f)
regulatory measures should be maintained and strengthened so
as to ensure that private educational institutions maintain
minimum standards and facilities; (g) admissions within all
groups and categories should be based on merit. There may
be reservation of seats In favour of the weaker sections of
the society and other groups which deserve special
treatment. The norms for admission should be predetermined
and transparent.
The four State Governments also took a similar stand.
It was submitted on behalf of the students who had obtained
admissions against the Management quota of 50% seats, that
they were Innocent parties and had obtained admission in a
bonafide belief that their admissions were being made
properly, they had been studying since then and in a few
months their academic year would come to a close; may be,
the managements were guilty of an irregularity, but so far
as the students were concerned they had done nothing
contrary to law to deserve the punishment awarded by the
Full Bench of the High Court.
Disposing of the Writ petitions and appeals, this Court,
HELD:By the Court,
1.The citizens of this country have a fundamental right
to education. The said right flows from Article 21. This
right is, however, not an absolute right. Its content and
parameters have to be determined in the light of Articles 45
and 41. In other words, every child/citizen of this country
has a right to free education until he completes the age of
14 years. Thereafter his right to education is subject to
the limits of economic capacity and development of the
State. [693B-C]
21.The obligations created by Articles 41, 45 and 46 of the
Constitution can be discharged by the State either by
establishing institutions of, Its own or by aiding,
recognising and/or granting affiliation to private
602
educational institutions. Where and not granted to private
educational institutions and merely recognition or
affiliation is granted It may a" be insisted that the
private education institution shall charge only that fee as
is charged for similar courses in governmental Institutions.
The private educational institutions have to and are
entitled to charge a higher fee not exceeding the ceiling
fixed in that behalf. The admission of students and the
charging of fee in these private educational institutions
shall be governed by the evolved by this Court [693D-E]
3.A citizen of this country may have a right to establish
an educational institution but no citizen, person or
institution has a right much less a fundamental right to
or recognition, or to grant-in-aid from the State. The
recognition and affiliation shall be given by the State
subject only to the conditions set out in, and In accordance
with, the scheme laid down by this Court. No
Government/University or authority shall be competent to
grant recognition or affiliation with the said scheme. The
said scheme shall constitute recognition or affiliation, as
the case may be, in addition except In accordance a
condition of such to such other conditions and terms which
such Government, University or other authority may choose to
impose. [693F-G]
4. Those institutions receiving aid shall howeverbe subject
to all so terms and conditions, as the aid giving authority
may impose In the interest of general public. [693H, 694A]
5. Section 3-A of the Andhra Pradesh Educational
Institutions (Regulation of Admission and Prohibition of
Capitation Fee) Act, 1983 Is violative of the equality
clause enshrined in 14 and is, therefore, void. [694B]
6.None of the provisions of the enactments of other three
States,viz., Karnataka, Tamil Nadu and Maharashtra says that
the Management of a private educational institution can
admit students, against "payment seats', 'irrespective of
the ranking assigned to them In such test (En Test) or
examination'. Much less do they say that to such
admissions, the provision prohibition capitation fee shall
not apply. No doubt they do not say expressly that such
admissions shall be made on the basis of merit, but that is
implicit If the notifications or orders issued thereunder
provide otherwise, either expressly or by Implication, they
would be equally bad. [690H, A-B]
603
Per Jeevan Reddy, J. (For himself and Pandian J.) Sharma, CJ
and S.P.Bharucha, J. Concurring except on the question of
rig to education being a fundamental right
11. Right to education is not statedexpressly as a
Fundamental Right in Part III of the Constitution of India.
However, having regard to the fundamental significance of
education to thelife of an individual and the nation,
right to education is implicit In and flows from the right
to life guarenteed by Article 21. That the right to
education has been treated as one of transcendental
importance in the life of an individual has been all over
the world. Without education being provided to the citizen
of this country, the objectives set forth in the Preamble to
the Constitution cannot be achieved. The Constitution would
fail. [644G, 652G-H, 653A-B),
Bandhua Mukti Morcha v. Union, of India; [1984] 2 S.C.R. 67,
to.
Miss Mohini jain v. State of Karnataka & Ors, [1992] 3 SCC
666, affirmed.
12. No doubt Article 21, which declares that no person
shall be of his fife or personal, liberty except according
to the procedure bed by law, is worded in negative terms,
but It Is now well that Article 21 has both a negative and
an affirmative dimension. It Is also well bed that the
provisions of Parts III and IV are supplementary and
complementary to each other and that Fundamental Rights are
but a to the goal indicated in Part IV, and that the
Fundamental Rights mad be construed in the not of the
Directive Principles. [645C, 652E]
Newspapers v. Union of India, [1959] S.C.L 12; Hussain Ara
v. Home Secretary, State of Bihar, [1979] 3 S.C.R. 532; A.R.
Antulay v.R.S. Nayak, [1992] Supp. 1 S.C.R. 225; Olga
Tellis v. Bombay Municipal Corporation, [1985] Suppl. 2
S.C.R. 51; Kharak Singh v. State of Uttar Pradesh and Ors
"[1964] 1 S.C.R 332; Vincent v. Union of India, [1967] 2
S.C.R. 468; M.C. Mehta v. Union of India, [1988] 1 S.C.R.
279,; Maneka Gandhi v. Union of India 1978 SC. 597; B.C.
Cooper v. Union of [1970] 'SC. 564; Bandhua Mukti Morcha v.
Union of India [1984] 2 S.C.R. 67; D.S. Nakara v. Union of
of India [1983] SCR 130; The State of Madras v.Champakan
Dorairajan, [1959] S.C.R. 995; Hanif v. State of
604
Bihar, [1959] S.C.R. 629; Keshavananda Bharati v. State of
Kerala 1973 Suppl. 521; U.P.S. C. Board v. Harishankar,
A.I.R. 1979 S.C. 65 and Minerva Mills v. Union of India,
A.I.R. 1980 S.C. 1789, referred to.
Munn v. Illinois, 1877 (94) U.S. 113/142 and Boiling v.
Sharpe, 98 Lawyers Ed. 884, referred to.
13. The fact that right to education occurs in as many as
three Articles in Part IV viz., Articles 41, 45 and 46 shows
the importance attached to it by the founding fathers. Even
some of the Articles in Part III viz, Articles 29 and 30
speak of education. [653F]
Brown v. Board of Education, 98 Lawyers Ed. 873 and
Wisconsin v. Yoder, 32 Lawyers Ed. 2d. 15, referred to.
14. The mere fact that the State is not taking away the
right at present does not mean that right to education is
not included within the right to life. The content of the
right is not determined by perception of threat The content
of right to life is not to be determined on the basis of
existence or absence of threat of deprivation. The effect
of holding that right to education Is implicit in the right
to life is that the state cannot deprive the citizen of his
right to education except in accordance with the procedure
prescribed by law. Therefore, it would not be correct to
say that Mohini Jain was wrong in so far as it declared that
the right to education flows directly from right to life.
[654E-G].
Miss Mohini Jain v. State of Karnataka and Ors, [1992] 3 SCC
666, referred to.
15.However, the citizens of this country cannot demand
that the State provide adequate number of medical colleges,
engineering colleges and other educational institutions to
satisfy all their educational needs. The right to education
which is implicit in the right to life and personal liberty
guaranteed by Article 21 must be construed in the light of
the directive principles in Part IV of the Constitution.
There are several articles in Part IV which expressly speak
of right to education. [654H, 655A-B]
Miss Mohini Jain v. State of Karnataka and Ors., [1992] 3
SCC 666, overruled.
16A. Education means knowledge and knowledge itself Is
power. The
605
preservation of means of Knowledge among the lowest ranks
Is of more importanceto the public than all the property
of all the rich men in the country. It Is this concern
which underlies Article 46. [655D-E]
John Adams: Desertation on Canon and Fuedal Law, 1765;
Rauschning. The Voice of Destruction: Hitler referred to.
1.7.A true democracy is one where education is universal,
where people understand what is good for them and the nation
and know how to govern themselves. Articles 45, 46 and 41
are designed to achieve the said goal among others. It is
In the Hot of these articles that the content and parameters
of the right to education have to be determined. [655F]
1.8.Thus, right to education, understood in the context of
Articles 45 and 41, means: (a) every child/citizen of this
country has a right to. free education until he completes
the age of 14 years, and (b) after a child/citizen completes
14 years, his right to education is circumscribed by the
limits of the economic capacity of the State and its
development. Article 45 assures right to free education for
all children until they complete the age of 14 Am. Among
the several articles in Part IV, only Article 45 speaks of a
time-limit; no other article does. This is very
significant. The State should honour the command of Article
45. It must be made a reality. A childhood has a
fundamental right to free education up to the age of 14
years. [655G, 656A, 658D]
Gunnar Myrdal, Asian Drain, referred to.
1.9.This does not, however, mean that this obligation can
be performed only through the State schools. It can also be
done by permitting, recognising and aiding voluntary
nongovernmental organisations, who are prepared to impart
free education to children. It does not also mean. that
unaided private schools cannot continue. They can, indeed
they too, have a role to play. They meet the demand of that
segment of population who may not wish to have their
children educated in State-run schools. They have
necessarily to charge fees from the students. [658E]
1.10.The right to education further means that a
citizen has a right to call upon the State to provide
educational facilities to him within the limits of its
economic capacity and development. This does not mean
transferring Article 41 from Part IV to Part 111. No State
would say that It need not provide education to its people
even within the limits of Its economic
606
capacity, and development. It goes without saying that the
limits-of economic capacity are, ordinarily speaking
matters within the subjective satisfaction of the State.
Therefore, it is not correct to say that reading the right
to education into Article 21, this Court would be enabling
each and every citizen of this, country to approach the
courts to compel the State to provide him such education as
he chooses. The right to free education is available only
to children until they complete the age of 14 years. There-
after, the obligation of the State to provide education is
subject to the limits of its economic capacity and
development.
[660E-H, 661A]
Francis C Mullin v. Administrator, Union Territory of Delhi,
[1981] 2 S.C.R. 516, referred to.
2.1.Private educational Institutions are a necessity in the
present day context. It is not possible to do without them
because the Governments are not in a position to meet the
demand particularly in the sector of medical and technical
education which call for substantial outlays. While
education is one of the most Important functions of the
Indian State, It has no monopoly therein. Private
educational institutions Including minority educational
institutions too have a role to play. Private educational
institutions may be aided as well as unaided. Aid given by
the Government may be cent per cent or partial. [674D-E]
2.2.So far as aided institutions are concerned, they have
to abide by all the rules and regulations as may be framed
by the Government and/or recognising(affiliating authorities
in the matter of recruitment of teachers and staff, their
conditions of service, syllabus, standard of teaching and so
on. In particular, in the matter of admission of students,
they have to follow the rule of merit and merit alone
subject to any reservations made under Article 15. They
shall not be entitled to charge any fees higher than what is
charged in Governmental institutions for similar courses.
These are and shall be understood to be the conditions of
grant of aid. The reason is simple: public funds, when
given as grant and not as loan carry the public
character wherever they go; public funds cannot be donated
for private purposes. The element of public character
necessarily means a fair conduct in all respects consistent
with the constitutional mandate of Articles 14 and 15. All
the Governments and other authorities in charge of granting
aid to educational institutions shall expressly provide for
such conditions (among others), If not already provided, and
shall ensure com-
607
pliance with the same. Again aid may take several forms.
For example a medical college doesnecessarily require a
hospital. The Government may permit it to avail of the
services of a Government hospital for the purpose of the
college free of charge. This would also be a form of aid
and the conditions aforesaid have to be imposed may be
with some relation in the of fees chargeable and observed.
The Governments (Central and State) and all other
authorities granting aid shall impose such conditions
forthwith, if not already imposed. These conditions shall
apply, to exist as well as proposed private educational
institutions. [674F-H, 675A-C]
23.So far as un-aided institutions are concerned they
cannot be compelled to charge the same fee as Is dunged in
Governmental institution, for the reason that they have to
meet the cost of imparting education from their own
resources and the main source, apart from dona-
tions/charities, Many, can only be the fees collected from
the students. It is here that the concepts of 'self-
financing educational institutions' and cost based
educational Institutions come in. However ,
commercialisation of education cannot and should not be
permitted. The Parliament as well as State Lagislatures
have expressed this intention in unmistakable terms. Both
In the light of our tradition and km the stand-point of
interest of public commercialisation is positively harmful;
it is opposed to public policy. [675D-E, 676B]
3.1. Article 19(1)(g) of the Constitution declares
that all citizens of country shall have the right to any
profession, or to carry on any occupation, trade or
business. No opinion Is expressed on the question whether
the right to established an education Institution can be
said to be on any 'occupation' within the meaning of Article
19(1)(g). As- suming that It Is occupation such activity
can In no event be a trade or business nor can it be a
profession within the meaning of Article 19 (1) (g). Trade
or business normally connotes an activity carried on with a
profit motive. Education has never been commerce In this
country. Making It one is opposed to the ethos, tradition
and sensibilities of ibis nation. The argument to the
contrary has an unholy ring to it. Imparting of education
has never been treated as a trade or business in this
country since times immemorial. It has been treated as a
religious duty, and a charitable activity, but never as
trade or business. Education in Its true aspect is more a
mission and a vocation rather than a profession, trade or
business,
608
however wide may be the denotation of the two latter words.
The Parliament too has manifested its Intention repeatedly
(by enacting the U.G.C. Act, I.M.C. Act and A.I.C.T.E. Act)
that commercialisation of education is not permissible and
that no person shall be allowed to steal a march over a more
meritorious candidate because of his economic power. The
very same intention is expressed by the Legislatures of
Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu In the
Preamble to their respective enactments prohibiting charging
of capitation fee. [676D-H, 677A-D]
3.2.Imparting education cannot be treated as a trade or
business. Education cannot be allowed to be converted into
commence nor can the petitioners seek to obtain the said
result by relying. upon the wider meaning of 'occupation'.
The content of the expression 'occupation' has to be ascer-
tained keeping in mind the fact that clause (g) employs all
the four expressions viz, profession, occupation trade and
business. Their fields may overlap, but each of them does
certainly have a content of its own, distinct from the
others. A law, existing or future, ensuring against the
conversion of imparting of education into commerce would be
a valid measure within the meaning of clause (6) of Article
19. [677F-G]
State of Bombay v. R.M.D. C., [1957] SCR 874, relied on.
The sabar kherda Education Society) Sabar kherda v.' State
of Maharashtra AIR 1968 Bombay 91; Andhra Kesari Education
Society v. Govemment of A.P., AIR 1984 AP. 251 and Bapuji
Educational Association v. State, AIR 1986 Karnataka 119
disapproved.
3.3.The activity of establishing an educational institution,
cannot be called a 'profession' within the meaning of
Article 19(1) (g). It is significant to notice the words
'to practice any profession'. Evidently, the reference is
to such professions as may be practised by citizens i.e,
individuals. [678G]
N.U.C. Employees v. Industrial Tribunal A.I.R. 1962 S.C.
1080, referred to.
3A. Establishing educational institutions can by no stretch
of inaginatiop be treated as 'practising any profession'.
Teaching may be a profession but establishing an
Institution, employing teaching and nonteaching staff,
procuring the necessary infrastructure for running a school
or college Is not 'practising profession'. It may be
anything but not practisIng a profession. It Is not
necessary to go into the precise meaning and
609
content of the expressions profession, occupation, trade or
business in the instant case. The main concern is only to
establish that the activity of establishing and/or running
an educational institution cannot be a matter of commerce.
[678H, 679A-B]
3.5.Assuming that a person or body of persons has a right
to establish an educational institution, this right is not
an absolute one. It is subject to such law as may be made
by the State in the interest of general public. However,
the right to establish an educational institution does not
carry with it the right to recognition or the right to
affiliation. [679C]
4.1.Recognition may be granted either by the Government or
any other authority or body empowered to accord recognition.
Similarly, affiliation may be granted either by the
University or any other academic or other body empowered to
grant affiliation to other educational Institutions. In
other words, it Is open to a person to establish an
educational institution, admit students, impart education,
conduct examination and award certificates to them. But be,
or the educational institution, has no right to insist that
the certificates or degrees (if they can be called as such)
awarded by such institution should be recognised by the
State muchless have they the right to say that the
students trained by the institution should be admitted to
examinations conducted by the University or by the
Government or any other authority, as the case may be. The
institution has to seek such recognition or affiliation from
the appropriate agency. [679F-G]
4..2.No educational institution except an University
can award degrees (Sections 22 and 23 of the U.G.C. Act).
The private educational institutions cannot award their own
degrees. Even if they award any certiricates or other
testimonials they have no practical value inasmuch as they
are not good for obtaining any employment under the State or
for admission into higher courses of study. No private
educational institution can survive or subsist without
recognition and/or affiliation. [680F-G]
4.3.The bodies which grant recognition and/or affiliation
are the authoritiesof the State. In such a situation, it
is obligatory in the interest of generalpublic upon
the authority granting recognition or affiliation to insist
upon such conditions as are appropriate to ensure not only
education of requisite standard but also fairness and equal
treatment in the matter of admission of students. Since the
recognising/affiliating authority is the State, it is under
an obligation to impose such conditions as part of Its duty
610
enjoined upon it by Article 14 of the Constitution. It
cannot allow Itself or main activity attach to supplemental
activity as well. Affiliation/recognition is not there for
anybody to get it gratis or unconditionally. No Government,
authority or University is justified or is entitled to grant
recognition/affiliation without imposing such conditions.
Doing so, would amount to abdicating its obligations
enjoined upon It by Part III, its activity Is bound to be as
unconstitutional and illegal [680H, 681A-C]
4.4 The private educational institutions merely supplement
the effort of the State in educating the people. It is not
an independent activity. It is an activity supplemental to
the principal activity carried on by the State. ore, what
applies to the main activity aplies equally to supplemental
activity. The State cannot claim immunity from the
obligations arising from Articles 14 and 15, and so, It
cannot confer such Immunity upon Its affiliates. [680G,
681D]
5.1.Keeping in view the positive features of the several
Central and State enactments, this Court has evolved a
scheme, which every authority granting
recognition/affiliation shall Impose upon the Institutions
seeking recognition/affiliation. The idea behind the scheme
Is to eliminate discretion In the management altogether In
the matter of admission. It is the discretion in the matter
of admission that is at the root of the several ills
complainedof and has mainly led to the
commercialisation of education. [681E-F]
5.2.'Capitation Fee' means charging or collecting amount
beyond what is permitted by law-, all the Acts have defined
this expression In this sense. A situation should be
brought where there Is no room or occasion for the
management or anyone on Its behalf to demand or collect any
amount beyond what is permitted. However, charging the
permitted fees by the private educational institutions
which Is bound to be higher than the fees charged in similar
governmental institutions by itself cannot be characterised
as capitation fees. This is the policy underlying all the
four States' enactments prohibiting capitation fees. All of
them recognise the necessity of charging higher fees by
private educational Institutions. They seek to regulate the
fees that can be charged by them which may be called
permitted fees and to bar them from collecting anything
other than the permitted fees, which is what'Capitation
fees' means.The attempt In evolving the scheme precisely is
to give effect to the said legislative policy. It
Its power and privilege to be used unfairly. The incidents
attaching to the
611
would be highly desirable If this scheme is given a
statutory shape by incorporating It in the Rules that may be
framed under these enactments. [681F-H, 682A-B]
53.The scheme evolved is in the nature of guidelines which
the appropriate Governments and recognising and affiliating
authorities should impose and implement in addition to such
other conditions and stipulations as they may think
appropriate as conditions for grant of permission, grant of
recognition or grant of affiliation, as the case may be.The
scheme for the present is confined only to 'professional
colleges' run by private educational institutions. [682C]
5.4.Only those institutions which seek permission to
establish and/or recognition and/or affiliation from the
appropriate authority shall alone be made bound by this
scheme. This scheme is not applicable to colleges run by
Government or to University colleges. Thus, the scheme
should be made a condition of permission, recognition or
affiliation, as the case may be. 'These conditions should
necessarily be imposed, in addition to such other conditions
as the appropriate authority may think appropriate. No
private educational institution shall be allowed to send its
students to appear for an examination held by any Government
or other body constituted by it or under any law or to any
examination held by any University unless the concerned
institution and the relevant course of study is recognised
by the appropriate authority and/or is affiliated to the
appropriate University, at the case may be. [693A-C]
5.5.It shall be open to the appropriate authority and the
competent authority to issue such further instructions or
directions, as they may think appropriate, not inconsistent
with this scheme, by way of elaboration and elucidation.
This scheme shall apply to and govern the admissions to
professional colleges commencing from the academic year
1993-94. [687G-H]
6.1.Until the commencement of the current academic year,
the Andhra Pradesh was following a somewhat different
pattern in the matter of filling the seats in private
unaided engineering colleges. Though all the available
seats were being filled by the allottees of the Convenor
(State) and the managements were not allowed to admit any
student on their own a uniform fee was collected from all
the students. The concepts of 'free seats' and 'payment
seats' were, therefore, not relevant in such a situation
612
all were payment seats only. Such a system cannot be said
to be constitutionally provide more opportunities to
meritorious students who may not be the to pay the enhanced
free prescribed by the government for such colleges. The
system devised would mean correspondingly mm financed burden
on payment students whom in the system in vogue in the State
of Andhra Pradesh, the burden is equally distributed among
all the stu. dents. The theretical foundation for the
method devised by the court is that a candidate/studeut who
is stealing a march over his compatriot on account of his
economic power should be made not only to pay for himself
but also to pay for another meritorious student. This is
the social justification behind the 50% rule prescribed in
the scheme. In the interest of uniformity and in the light
of the above social theory, the State of Andhra Pradesh
should adhere to the system devised by the Court [688B-E]
6.2.In the circumstances, it is not necessary for this
Court to go into or answer the question whether grant of
permission to establish and the grant of affiliation Imposes
an obligation upon an educational institution to act fairly
in the matter of admission of the students and It requires
debate in a greater depth and any expression of opinion
thereon at this juncture is not really warranted. [631C,
688F]
7.1.Section 3-A of the Andhra Pradesh Educational
Institutions (Regulation of Admission and Prohibition of
Capitation Fee) Act, 1983 is, in the nature of an exception
to the other provisions of the Act The Sec. don, read as a
whole leads to the following consequences: (a) it is open to
the private eductional institutions to charge as much amount
as they can for admission. It will be a matter of bargain
between the Institution and the student seeking admission;
(b) the admission can be made without reference to inter-se
merit of paying candidates. The institution will be
entitled to pick and choose the candidates among the
applicants on such considerations as It may deem fit; (c)
Section 5, which prohibits collection of capitation fee by
an educational Institution, is expressly made inapplicable
to such admissions. This is not without a purpose. The
purpose Is to permit the institutions to charge as much as
they can in addition to the collection of the prescribed
tuition fee. [689E, G-H,69OA-B]
7.2.The educational activity of the private educational
institutions is supplemental to the main effort by the State
and what applies to the main activity applies equally to the
supplemental activity as well. Since Article 14
tionally not permissible. But the Idea in devising the
scheme has been to
613
of the Constitution applies to the State innstitutions and
compels them to admit students on the basis of merit and
merit alone (subject, of course, to any permissible
reservations wherein too, merit inter-se has to be fol-
lowed) the applicability of Article 14 cannot be excluded
from the supplemental effort/activity. Ile State
Legislature had, therefore, no power to say that a private
educational institution will be entitled to admit students
of its choice, irrespective of merit or that it is entitled
to charge as much as it can, which means a free hand for
exploitation and more particularly, commercialisation of
education, which is impermissible in law. No such immunity
from the constitutional obligation can be claimed or
conferred by the State Legislature. On this ground alone,
the Section is liable to fail. Mm section falls foul of
Article 14 and must accordingly fail. The offending
portions of Section 3-A cannot be severed from the main body
of the section and, therefore, the whole section is liable
to fall to the ground. [690C-G]
Kranti Sangran Parishad v. NJ. Reddy, (1992) 3 A.L.T. ",
affirmed..
7.3.Consequent on the striking down of Section 3-A, the
question which arises is as to what should happen to the
students who were admitted by the Private Engineering
Colleges in this State, at their own discretion, to the
extent of the 50% of the available seats. Though the High
Court has invalidated these admissions they are continuing
now by virtue of the orders of stay granted by this Court
Until the previous year, the State Government
has been permitting these private engineering colleges to
collect a higher fees from all the students allotted to
them. Of course, all the available seats were filled up by
students allotted by the convenor of the common entrance
exam; no one could be admitted by these colleges on their
own. For the current year, these colleges admitted 50% of
the students in their own discretion which necessarily
means collection of capitation fees and/or arbitrary
admissions for their own private masons. At the same time
these colleges have been collecting the same fees as was
charged last year both km the students allotted by the
convenor as also-from those admitted by themselves. Thus,
they have reaped a double advantage. Though the admissions
were made In a hurry, but the fact remains that they have
been continuing in the said course under the orders of this
Court over the last about four months. The present
situation has been brought about by a combination of
circumstances namely the enactment of Section 3-A. the
allotment of students to the extent of 50% only by the
convenor and
614
the failure of the Government to immediately rectify the
misunderstanding of the convenor. [691C-E, H, 692A]
7.4. In the circumstances, these students should not be sent
out at this stage. May be, the result Is rather unfortunate
but all the relevant circumstances have to be weighed. At
the same time, the managements of these private engineering
colleges should not be allowed to walk away with the double
advantage referred to above. Since they have admitted
students of their own choice to the extent of 50% and also
because It is not possible to investigate or verify for what
consideration those admissions were made, It is appropriate
that these colleges should charge only that fee from the 50%
free students as is charged for similar courses in the
concerned university engineering colleges. For the
remaining years of their course these colleges shall collect
only the said fee, which for the sake of convenience may be
called the 'government feel. The balance of the amount
which they have already collected during this year shall be
remitted Into the Government account within six weeks.
Whichever college fails to comply with this direction it
will stand disaffiliated on the expiry of six weeks of this
order and the recognition granted to it, if any, by any
appropriate authority shall also stand withdrawn. [692B-E]
Per L.M. Sharma, CJ. (for himself and Bharucha J.)
Concurring
1.1The question whether the right to primary education as
mentioned in Article 45 of the Constitution of India, Is a
Fundamental Right under Article 21 did not arises in Mohini
Jain's case and no finding or obserbation on that question
was called for. h cannot be accepted that since a positive
finding on that question was recorded in Mohini Jain's case
it becomes necessary to consider its correctness on merits.
this Court should follow the well established principle of
not proceeding to decide any question A" Is not necessary to
be decided In the case. Therefore. no opinion upon the
question is expressed. However, the finding given In Mohini
Jain's case on this question was not necessary in that case
and Is, therefore not binding law. If It becomes necessary
to decide this question In any subsequent case then having
regard to Its vast impact, inter alia, on the capacity
financial capacity, the question may be referred to a larger
Bench for decision. [622F-G, 623D-E]
Mohini Jain v. State of Karnataka, [1992] 3 S.C.C. 666,
referred to.
615
1.2. Suffice it to say that there is no Fundamental Right to
Education for a professional degree that flows from Article
21. [623F]
Per Mohan J (Concurring)
1.1.Article 21 acts as a shield against deprivation of life
or personal liberty since personal liberty and life have
come to be given expanded meaning It would not be incorrect
to hold that life which means to live with dignity takes
within it education as well. [697E, 705C]
Addl. Dist. Magistrate v. S.S. Shukla, [1976] Supp.
S.C.R. 172, relied on.
1.2.The fundamental purpose of Education is the same at all
times sad In all places. It is to transfigure the human
personality into a pattern of perfectionthrough a
synthetic process of the development of the body,the
enrichment of the mind, the sublimation of the motions
and the illumination of the spirit Education Is a
preparation for a living and for life,when and hereafter.
In the context of a democratic form of government which
depends for its sustenance upon the enlightenment of the
populace education is at once at once a social and political
necessity. Education is enlightenment If the one that leads
dignity to a man. [695C, E, 706G]
University of Delhi v. Ram Nath, [1964] 2 S.C.R. 703, relied
on.
Oliver Brown v. Board of Education of Topeka, US. Supreme
Court Reports 98 Law. Ed. U.S. 347, referred to.
13. It is not correct to say that because Article 21 is
couched in a negative languauge positive rights to life and
liberty are not conferred.The as to why Article 21 did not
positively confer a fundamental right to life or personal
liberty like Article 19 is that great concepts like liberty
and We were purposefully left to gather meaning from
experience. They relate to the whole domain of social and
economic fact. The drafters of the Constitution knew too
well that only a stagnant society remains unchanged. The
right to life and liberty inhere In every man. There is no
need to provide for the time in a positive manner.
Therefore, if really Article 21, which Is the heart of
fundamental brights, has received added meaning from time to
time,there is no justification as to why It cannot be
interpreted in the light of Article 45, wherein the State of
obligated to provide education up to 14 years of within the
prescribed time limit [699D, 697E, G, 701G]
616
Maneka Gandhi v. Union of India A.I.R. 1978 597; Kharak
Singh v. State of UP., [1964] S.C.R. 332; Kesavananda
Bharati v. Kerala, [1973] Supp. S.C.R. 1; Puthumma & Ors.
v. State of Kerala & Ors., [1978] 2 S.C.R. 537; American
Constitution in Mussorie v. Holland 252 U.S. 416; State of
M.P. v. Pramod Bhyaratiya & Ors., [1992] 2 Scale 791;
Satwant Singh v. A.P.O. New Deft [1967] 3 S.C.R. 525;
Govinda v. State of UP., [1975] 3 S.C.R. 946; Sunil Batra v.
Delhi Administration [1978] 4 S.C.C. 494; Charles Sobraj v.
Supt. Central Jail, [1979] 1 S.C.R. 111; Hoskot v. State of
Maharashtra, [1979] 1 S.C.R. 192; Hussaini Katoon v. State
of Bihar, [1979] 3 S.C.R. 169; Prem Shankar v. Delhi
Administration [1980] 3 S.C.R. 855; v. State of Maharashtra
[1983] 2 S.C.C. %; A.G. of India v. Lachmadevi, A.I.R. 1986
S.C. 467; Paramananda Katra v. Union of India, [1989] 4
S.C.C. 286; Santistar Builder v. N.K.I Totame, [1990] 1
S.C.C. 520; Bandhua Mukti Morcha v. Union of India [1984] 3
S.C.C. 161; Olga Tellis v. Bombay Municipal Corporation,
[1985] 3 S.C.C. 545; Mohini Jain v. State of Karnataka,
[1992] 3 S.C.C. 666 and State of Andhra Pradesh v. Lavu
Narendranath, [1971] 1 S.C.C. 607, referred to.
1.4.If life is so interpreted as to bring within it right
to education, it has to be interpreted in the light of
directive principles. Harmonious interpretation of the
fundamental rights vis-a-vis the directive principles must
be adopted. [706H, 707A]
State of Kerala & Anr. v. N.M. Thomas & Anr.[1976] 1 S.C.R.
906; Pathumma & Ors. v. State of Kerala & Ors., [1978] 2
S.C.R. 537 and Delhi Development Horticulture Employees'
Union v. Delhi Administration, Delhi & Ors., [1992] 4 S.C.C.
99, referred to.
Constituent Assembly Debates, 1948-49, Vol.VI, pp. 909 and
910, referred to.
2.1.A time limit was prescribed under Article 45. Such a
time limit is found only here. If, therefore, endeavour has
not been made till now to make this Article reverberate with
life and articulate with meaning, the Court should step in.
The State can be obligated to ensure a right to free
education of every child upto the age of 14 years. [713E]
Norma Bernstein, Human Rights and Education, Vol.. 3 p.41;
John Ziman, World of Science and the Rule of Law, 1986 Edn.
p.49, referred to.
617
2.2.Higher Education calls heavily on national economic
resources. The right to it must necessarily be limited in
any given country by its economic and social circumstances.
The State's obligation to provide it is, therefore, not
absolute and immediate but relative and progressive. It has
to take steps to the maximum of its available resources with
a view to achieving progressively the full realization of
the right of education by all appropriate means. But, with
regard to the general obligation to provide education, the
State is bound to provide the same, if it deliberately
starved its educational system by resources that it
manifestly had, unless it could show that it was allocating
them to some even more pressing programme. Therefore, by
holding education as a fundamental right up to the age of 14
years this Court is not determining the priorities. On the
contrary, reminding it of the solemn endeavour, it has to
take, under Article 45, within a prescribed time, which time
limit has expired long ago. [716D-F]
2.3.Therefore, right to free education up to the age of 14
years is a fundamental right. Since fundamental rights and
directive principles are complementary to each other, there
is no reason why this fundamental right cannot be
interpreted in this manner. Mohini Jain's case had laid
down the law somewhat broadly when it stated education at
all levels. This must be confined to what is envisaged
under Article 45. [719H, 717B, 716B]
San Antonio Independent School District v. Rodrigues, [1973]
411 U.S., referred to.
Mohini Jain v. State of Karnataka, [1992] 3 S.C.C. 666,
partly affirmed.
California Law Review, Vol. 57 19699 p. 380, referred to.
3.It cannot be said that establishment of an educational
institution would be 'business'. Nor again, could that be
called trade since no trading activities are carried on.
Equally, it is not a profession. It is one thing to say
that teaching is a profession but, it is a totally different
thing to plead that establishment of an educational
institution would a profession. It may perhaps fall under
the category of occupation provided no recognition is sought
from the State or affiliation from the University is asked
on the basis that it is a fundamental right. [724G-H]
P.V G. Raju v. Commissioner of Expenditure, I.T.R. Vol.
86 p.267; P.K Menon v. Income-tax Commissioner, [1959] Supp.
1 S.C.R. 133; Hindustan
618
Steel Limited v. State of Orissa, [1970] 1 S.C.R. 753 and
Barendra Prasad Ray v. The Income-tax Officer, A.I.R. 1981
S.C. 1047, referred to.
Water Supply and Sewerage Board v. R. Rajappa [1978] 3
S.C.R. 207 and Miss. Sundaranbai v. Government of Goa,
[1988] Suppl. 1 S.C.R. 604, distinguished.
P.Ramanatha Aiyar, Law Lexicon Reprint, Edn. 1987 p.897;
Black Law Dictionary, Fifth Edn. p.973 and Ramnath Iyer, Law
Lexicon, Edn. 1987, referred to.
4.1.Educational Institutions can be classified under two
categories (1) those requiring recognition by the State and,
(2) those who do not require such a recognition. [725F]
4.2.There is absolutely no fundamental right to recognition
in any citizen. The right to establishment and run the
educational institution with State's recognition arises only
on the State permitting, pursuant to a policy decision or on
the fulfilment of the conditions of the Statute. Therefore,
where It is dependent on the permission under the Statute or
the exercise of an executive power, it cannot qualify to be
a fundamental right. Then again the State policy may
dictate a different course. [725G-H, 726A]
4.3.The logical corollary of holding that a fundamental
right to establish an educational Institution is available
under Article 19(1)(g) would lead to the proposition, right
to establish a university also. [726B]
S.Azeez Basha & Anr. v. Union of India [1968] 1 S.C.R.
833, referred to.
4.4.If there is no fundamental right to establish a
university a fortiori a fundamental right to establish an
educational institution is not available. By implication
also, a fundamental right of the nature and character
conferred under Article 30 cannot be read into Article
19(1)(g). The conferment of such a right on the minorities
in a positive way under Article 30 negatives the assumption
of a fundamental right in this behalf in every citizen of
the country. [727A-B]
Ahmedabad St. Xaviers College Society v. State of Gujarat,
[1975] 1 S.C.R. 173, referred to.
619
4.5.Every activity or occupation by the mere fact of its
not being obnoxious or harmful to society cannot by Itself
be entitled to protection as fundamental right. Some
rights, by the my very nature cannot be qualified to be
protected as fundamental rights. [729B]
4.6.Accordingly, there is no fundamental right under
Article 19(1)(g) to establish an educational institution, if
recognition or affiliation is sought for such an educational
institution. However, anyone desirous of starting an
institution purely for the purposes of education the
students could do so, but 22 and 23 of the University grants
C ion Act Which prohibits the award of degrees except by
a University most be kept in mind. [729C-D]
5.It is not possible to hold that a private educational
institution either by recognition or affiliation to the
university could ever be called an instrumentality of State.
Recognition is for the purposes of conforming to the
standards laid down by the State. Affiliation is with
regard to the syllabi and the course of study. Unless and
until they are'in accordance with the prescription of the
university, degrees would not be conferred The educational
Institutions prepare the students for the examination
conducted by the university. Therefore, they are obliged to
follow the syllabi and the course of the study. [732B-C]
Ajay Hasia v. Khalid Mujib Sehravardi [1981] 2 S.C.R. 79;
Tekraj Vasandi v. Union of India, [1989] 1 S.C.C. 236 and
All India Sainik Schools Employees' Assn. v. Sainik Schools
Society, [1989] Supp. 1 S.C.C. 205, relied on.
6.1.These private institutions discharge a public duty. If
a student desires toacquire a degree, for example, In
medicine, he will have to route through a medical college.
These medical colleges are the Instruments to attain
thequalification. Therefore, since what Is discharged by
the educational institution is a public duty, that requires
it to act fairly. In such a case, it will be subject to
Article 14. [732D]
6.2.These educational institutions discharge public duties.
Irrespective of the educational institutions receiving aid,
it is a public duty. If absence of aid does not detract
from the nature of duty. [737C]
Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna
Jayanti
620
Mahotsav Samarak Trust v. V.& Rudani [1989] 2 S.C.C. 691 and
R.V. Panel on Take-Overs, 1987 1 All England Reports 564,
relied on.
7.1.As on today, it would be unrealistic and unwise to
discourage private initiative in providing educational
facilities, particularly for higher education. The private
sector should be involved and indeed encouraged to augment
the much needed resources in the filed of education, thereby
making as much progress as possible In achieving the
constitutional goals in this respect Private colleges are
the felt necessities of time. That does not mean one should
tolerate the so-called colleges run In thatched huts with
hardly any equipment, with no or Improvised laboratories,
scam facility to learn in an unhealthy atmosphere, for from
conducive to education. Such of them most be put down
ruthlessly with an iron hand irrespective of who has started
the institution or who desires to set up such an
institution.They are poisonous weeds In the field of
education. Those who venture are financial adventurers
without morals or scruples. Their only aim is to make
money, driving a hard bargain, exploiting eagerness to
acquire a professional degree which would be a passport for
employment In a country rampant with unemployment. They
could be even called pirates In the high seas of education.
[742A-D)
7.2.However, not all the private Institutions belong to
this category There are institutions which have attained
great reputation by devotion and by nurturing high
educational standards. They surpass the colleges run by the
Government In many respects. They require encouragement
From this point of view regulatory controls have to be
continued and strengthened. The commercialisation of
education, the racketeering must be prevented. The State
should strive its utmost in this direction. [743C]
7.3.Regulatory measures must so ensure that private
educational institutions maintain minimum standards and
facilities. Admission within all groups and categories
should be based only on merit There may be reservation of
seats in favour of the weaker sections of the society and
other groups which deserve special treatment. The norms for
admission should be predetermined, objective and transparent
[743D-E]
7A. Profiteering is an evil. If a public utility like
electricity could be controlled, certainly, the professional
colleges also require to be regulated. [744A]
621
Kerala State Electricity Board v. S.N. Govinda Prabhu,
[1986] 3 S.C.R.; Suman Gupta and Ors. v. State of J & K and
Ors., [1983] 3 S.C.R. 985; Oil and Natural Gas Commission
and Anr. v. Association of Natural Gas Consuming Industries
of Gujarat and Ors., [1990] Supp. S.C.C. 397 and Hindustan
Zinc Ltd. v. A.P.S.E.B., [1991] 3 S.C.C. 2", referred to.
8.It is not correct to say that education must be
available free and it must be run on a charitable basis.
The time is not yet ripe to hold that education must be made
available on a charitable basis, though whenever trusts are
made for advancement of education it was held to be a
charitable purpose. [746C, 747H, 748A]
St. Stephen's College v. University of Delhi, [1992] 1
S.C.C. 558; Special Commissioners of Income-tax v. Pemsel, 3
Tax Cases 53; The king v. The Commissioner for Special
Purposes of the Income-tax, 5 Tax Cases 408 and The Abbey
Malvem Wells Ltd. v. Minister of Town and Country Planning
1951 (2) All England Law Reports 154, referred to.
P.R. Ganapathy Iyer. The Law relating to Hindu and
Mahomedan Endowments, Chap. III p.46 & 49; B.K. Mukherje :
The Hindu Law of Religious and Chariatable Trust, p.58 para
2.7A, referred to.
JUDGMENT:
CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No.607 of
1992.
Under Article 32 of the Constitution of India.
WITH
W.P.(C) Nos. 657, 602 & 678/92, SLP(C)No. 11852/92, W.P.(C)
No.701, 770 & 729/92 SLP(C) No. 13263, 12830 & 13913/92 with
I.A. Nos. 2-5, 13914 and 12845-58/92, W.P. (C) No. 785 &
836/92, SLP(C)No. 13940/92, W.P.(C) No. 779/92, 2337-
2338/83, C.A. No. 3573/92, W.P.(C) No.870/92, 855/92 &
SLP(C) No.15039 of 1992.
Milon Kumar Banerjee, Attorney General, Dipankar Prasad
Gupta, Solicitor General, V.R. Reddy, Additional Solicitor
General, K.K. Venugopal, Santosh Hegde, K. Parasam, Shanti
Bhushan, Kapil Sibal, R.K.Jain, Ms. Indira Jaising, C.S.
Vaidyanathan, D.D.Thakur, V.M.Tarkunde, Har Dev Singh,
Sushil Kumar, Rana Jois, S.S. Javeli, S.K Dholakia Ashok
Desai, C. Sitaramaiah Harish N. Salve, Madhunaik Nair,
622
Suchinto Chatterji, P.P. Tripathi, K.V. Mohan, Ejaz Maqbool,
Vijai Kumar, V. Balachandran, S.R. Bhat, A.V. Rangam, A.
Ranganadhan, W.C. Chopra, Satish Parasaran, Jayant Bhushan,
A. Subha Rao, Ms. Bharati Reddy, Ms. Pramila, T.V.S.
Narasimhachari Naresh Kaushik, Navin Batra, B.
Veerabhadrappa, Shankar Divate, Mrs. Lalitha Kaushik, S.C.
Patel Mohan V. Katarki Shambhu Prasad Singh, Rajeshwar
Thakur, Ms. Rani Jethmalani, KV. Viswanathan, Madhu Naik,
K.V. Venkataraman, K. Ram Kumar, Vivek Gambhir, S.K Gambhir,
B.E. Avadh, M.D. Adkar, C.B. Babu, Smt. Ayajai C.V. Subba
Rao, A.Mariarputham, Mrs. Aruna Mathur, Dr. Sumant Bhardwaj,
Anuputham, Aruna & Co., Ms. Madhu Moolchandani S.A.
Sequeira, G.K Shevgoor, R.P. Wadhwani, Dr. J.P. Verghese,
M.P. Raju, LJ. Vadakara, P.R. Ramasesh, Anip Sachthey, S.S.
Khanduja, Yashpal Dhingra, B.K. Satija, A.M. Majumdar,
Sanjay Parikh, A.K. Panda, Karanja Wala, Ajay Malviya,
Ranjan Mukherjee, R.K. Mehta, J.R. Das, D.K. Sinha, Mrs.
Bharati Sharma, Mrs. Rani Chhabra, Dr. Sumant Bhardwaj, R.S.
Hegde, K.R. Nagaraja, Sunil Dogra, Smiriti Misra, Ms.
Madhavan, P.H. Parekh, A.S. Bhasme, Vimal Dave and B.
Rajeshwar Rao for the appearing parties.
The Judgments of the Court were delivered by
SHARMA, CJ. We have had the benefit of going through the
two judgments of our learned Brothers B.P Jeevan Reddy and
S. Mohan, JJ. We are in agreement with the judgment of
Brother B.P. Jeevan Reddy, J. except to the extent indicated
below.
2.The question which arose in the case of Miss Mohini
Jain v. State of Karnataka, [1992] 3 SCC 666, as also in the
present cases before us, is whether a citizen has a
Fundamental Right to education for a medical, engineering or
other professional degree. The question whether the right
to primary education, as mentioned in Article 45 of the
Constitution of India, is a Fundamental Right under Article
21 did not arise in Mohini Jain's case and no finding or
observation on that question was called for. It was
contended before us that since a positive finding on that
question was recorded in Mohini Jain's case it becomes
necessary to consider its correctness on merits. We do not
think so.
3.Learned arguments were addressed in support of and
against the aforesaid view which have been noticed in the
judgments of our learned Brothers. It was contended by
learned counsel appearing for some of the
623
parties before us that Article 37 in Part IV of the
Consititution expressly states that the provisions contained
in Part IV shall not be enforceable by any court and that,
therefore, assuming the right under Article 45 to be
included within the ambit of Article 21, it would still not
be enforceable. Emphasis was also laid upon the language
used in Article 45 which requires the State to "endeavour to
provide' for the free and compulsory education of children.
A comparison of the language of Article 45 with that of
Article 49 was made and it was suggested that whereas in
Article 49 an 'obligation' was placed upon the State, what
was required by Article 45 was "endeavour" by the State. We
are of the view that these arguments as also the arguments
of counsel on the other side and the observations in the
decisions relied upon by them would need a thorough
consideration, if necessary by a larger Bench, in a case
where the question squarely arises.
4.Having given our anxious consideration to the arguments
in favour of and against the question aforementioned, we are
of the view that we should follow the well established
principle of not proceeding to decide any question which is
not necessary to be decided in the case. We, therefore, do
not express any opinion upon this question except to hold
that the finding given in Mohini Jain's case on this
question was not necessary in that case and is, therefore,
not binding law. We are of the view that if it becomes
necessary to decide, his question in any subsequent case
then, for the reasons set out above and having regard to its
vast impact, inter alia on the country's financial capacity,
the question may be referred to a larger Bench for decision.
5.For the purposes of these cases, it is enough to state
that there is no Fundamental Right to education for a
professional degree that flows from Article 21.
B.P. JEEVAN REDDY, J. In these writ petitions, filed by
private educational institutions engaged in or proposing
to engage in imparting medical and engineering education
the correctness of the decision rendered by a Division Bench
comprising Kuldip Singh and R.M. Sahai JJ. in Miss Mohini
Jain V. State of Karnataka and Ors., is called in question.
The petitioners,running medical/engineering colleges in the
States of Andhra Pradesh, Karnataka, Maharashtra and Tamil
Nadu, say that if Mohini Jain is correct and is followed and
implemented by the respective State Governments as indeed
they are bound to they will have to close
624
down; no other option is left to them. It is, therefore,
necessary in the first instance to ascertain what precisely
does the said decision lay down.
2.The Karnataka Legislature enacted, in the Year 1984,
the Karnataka Educational Institutions (Prohibition of
Capitation fee) Act. The preamble to the Act recites:
"An Act to prohibit the collection of
capitation fee for admission to educations
institutions in the State of Karnataka and
matters relating thereto;
Whereas the practice of collecting capitation
fee for admitting students into educational
institutions is widespread in the State;
And whereas this undesirable practice beside
contributing to large scale commercialisation
of education has not been conducive to the
maintenance of educational standards;
And whereas it is considered necessary to
effectively curb this evil practice in public
interest by providing for prohibition of
collection or capitation fee and matters
relating thereto;
Be it enacted by the Karnataka State
Legislature in the
Thirty-Fourth Year of the Republic of India as
follows"
Clause (b) of Section 2 defines the expression
'Capitation fee in the following words:
"2(b)Capitation fee' means any amount, by
whatever name called, paid or collected
directly or indirectly in excess of the fee
prescribed under s"on 5, but does not include
the deposit specified under the proviso to
section 3."
Section 3 prohibits collection of. capitation fees by any
educational institution or anyone connected with its
management, notwithstanding any other law for the time being
in force. The Section along with its proviso reads thus.
625
"3. Collection of capitation fee prohibited.
Notwithstanding anything contained in any law
for the time being in force, no capitation fee
shall be collected by or on behalf of any
educational institution or by any person who
is incharge of or is responsible for the
management of such institution:
Provided.......................
Section 5, which is the other provision
referred to in the aforesaid definition reads
as follows:
5. Regulation of fees etc. (1) It shall be
competent for the Government, by notification,
to regulate the tuition fee or any other fee
or deposit or other amount that may be
received or collected by any educational
institution or class of such institutions in
respect of any of all class or classes of
students.
(2)No educational institution shall collect
any fees or amount or accept deposits in
excess of the amounts notified under sub-
section (1) or permitted under the proviso to
section 3.
(3)Every educational institution shall
issue an official receipt for the fee or
capitation fee or deposits or other amount
collected by it.
(4)All monies received by any educational
institution by way of fee or capitation fee or
deposits or other amount shall be deposited in
the account of the institution, in any
Scheduled Bank and shall be applied
and expended for the improvement of the
institution and the development of the
educational facilities and for such other
related purpose and to such extent and in such
manner as may be specified by order by the
Government.
(5)In order to carry out the purposes of
sub-section (4), the Government may require
any education institution to submit their
programmes or plans of improvement and
development of the institution for the
approval of the
626
Government."
3.Section 4 provides for regulation of admission in the
educational institutions in the State. According to sub-
section (1), the maximum number of students for admission
that can be admitted to a course of study and the minimum
qualifications shall be fixed by the Government. However,
in the case of a course of study in an institution
maintained by or affiliated to the University, the minimum
qualifications shall be fixed by the University and not by
the Government. Sub-sections (2) and (3) of Section 4
pertain to 'regulation of capitation fee during the period
specified under the proviso to Section 3. In view of their
importance, these sub-sections may be set out in full :
"(2) in order to regulate the capitation fee
charged or collected during the period
specified under the proviso to section 3, the
Government may, from time to time, by general
or special order, specify in respect of each
private educational institution or class or
classes of such institutions.
(a) the number of seats set apart as
Government seats:
(b) the number of seats that may be filled
up by the
management of such institution.
(i) from among Karnataka students on the
basis of merit, on payment of such cash
deposits refundable after such number of
years, with or without interest as may be
specified therein, but without the payment of
capitation fee; or
(ii) at the discretion
Provided that such number of seats as may be
specified by the Government but not less than
fifty per cent of the total number of seats
referred to in the clauses (a) and (b) shall
be filled from among Karnataka students.
Explanation. For the purpose of this section
Karnataka students means persons who have
studied in such educational institutions in
the State of Karnataka run or recog-
627
nised by the Government and for such number of
years as the Government may specify;
(3) an educational institution required to
fill seats in accordance with item (1) of sub-
clause (b) of clause (2) shall form a
committee to select candidates for such seats.
A nominee each of the Government and the
University to which such educational
institution is affiliated shall be included as
members of such committee."
These two sub-sections, in short, say: (i) it shall be open
to the Government to specify the number of seats that may be
set apart as "Government seats' in any private educational
institution or in a class or classes of such institutions;
(ii) The Government can also specify that out of the seats
to be filled by the Management (Management quota), a
particular number of seats may be filled from among
Karnataka students, on the basis of merit on payment of such
refundable deposit as may be prescribed; The government can
also specify the number of seats that may be filled at the
discretion of the management. (It is obvious that if the
seats to be filled on the basis of merit/refundable deposit
are not specified, all the seats other than "Government
seats" can be filled at the discretion of the management;)
(iii) the number of 'Karnataka students' (which expression
is defined by the explanation) should not be less than 50%
over-all; (iv) in case, the number of seats to be filled on
merit-cum-refundable deposit are specified, a selection
committee, as contemplated by sub-section (3) has to be
formed for making the selection. The expression "Government
seats" is defined in clause (e) of Section 2 in following
words:
"(e) "Government Seats" means such number of
seats in such educational institution or class
or classes of such institutions in the state
as the Government may, from time to time,
specify for being filled up by it in such
manner as may be specified by it by general or
special order on the basis of merit and
reservation for Scheduled Castes, Scheduled
Tribes, Backward Classes and such other
categories, as may be specified, by the
Government from time to time, without the
requirement of payment of capitation fee or
cash deposit."
4. In exercise of the power conferred by
section 5 of the Act, the
628
Government of Karnataka issued a notification on June 5,
1989. It provided that from the academic year 1989-90, the
fees payable in private medical colleges shall be Rs.2,000
p.a. in case of students admitted against 'Government Seats'
(the same as in the Government Medical Colleges), Rs.25,000
in the case of other Karnataka students and Rs.60,000 in the
case of non-Karnataka students.
5.Miss Mohini Jain, a non-Karnataka student (she was from
Meerut in Uttar Pradesh) applied for admission in M.B.B.S.
course in one of the private medical colleges in Karnataka.
She was informed by the college that if she pays Rs. 60,000
towards the first year's tuition fee and furnishes a bank
guarantee for the fees payable for the remaining years of
the M.B.B.S. course, she will be admitted. Her parents
were not in a position to pay the same and hence she could
not be admitted. Her further case, which was denied by the
Management of the college, was that she was asked to pay a
capitation fee of Rs.4,50,000 as a condition of admission.
She approached this court under Article 32 challenging the
aforesaid notification of the Karnataka Government and
asking for a direction to be admitted on payment of the same
fee as was payable by the Karnataka students admitted
against the "Government Seats".
6. The Bench which heard and disposed of the writ petition
framed four questions as arising for its consideration
viz., (i) Is there a 'right to education' guaranteed to
the people of India under the Constitution ? If so, does
the concept of 'capitation fee' infract the same ? (ii)
Whether the charging of capitation fee in consideration of
admission to educational institutions is arbitrary, unfair,
unjust and as such violates the equality clause contained in
Article 14 of the Constitution ? (iii) Whether the impugned
notification permits the Private Medical Colleges to charge
capitation fee in the guise of regulating fees under the Act
? and (iv) Whether the notification is violative of the
provisions of the Act which in specific terms prohibits the
charging of capitation fee by any educational institution in
the State of Karnataka ?
7. On the first question, the Bench held, on a consideration
of Articles 21, 38, 39(a) and (f), 41 and 45 of the
Constitution:
(a) "the framers of the Constitution made it obligatory for
the State to provide education for its citizens";
629
(b)the objectives set forth in the preamble to the
Constitution cannot be achieved unless education is provided
to the citizens of this country,
(c)the preamble also assures dignity of the individual.
Without education, dignity of the individual cannot be
assured;
(d)Parts III and IV of the Constitution are supplementary
to each other. Unless the 'right to education' mentioned in
Article 41 is made a reality, the fundamental rights in Part
III will remain beyond the reach of the illiterate majority,
(e)Article 21 has been interpreted by this Court to
include the right to live with human dignity and all that
goes along with it. "The 'right to education' flows
directly from right to life.' In other words, 'right to
education' is concomitant to the fundamental right enshrined
in Part III of the Constitution. The State is under a
constitutional mandate to provide educational institutions
at all levels for the benefit of citizens." The benefit of
education cannot be confined to either classes.
(f)Capitation fee is nothing but a consideration for
admission. The concept of "teaching shops" is alien to our
Constitutional scheme. Education in India has never been a
commodity for sale.
(g)"We hold that every citizen has a 'right to education'
under the Constitution. The State is under an obligation to
establish educational institutions to enable the citizens to
enjoy the said right. The State may discharge its
obligation through state-owned or state-recognised
educational institutions. When the State Government grants
recognition to the private educational institutions it
creates an agency to fulfil its obligation under the
Constitution. The students are given admission to the
educational institutions whether state-owned or state-
recognised in recognition of their 'right to education'
under the Constitution. Charging capitation fee in
consideration of admission to educational institutions, is a
patent denial of a citizen's right to education under the
Constitution."
8.On the second question, the Bench held that "the State
action in permitting capitation fee to be charged by state-
recognised educational institutions is wholly arbitrary and
as such violative of Article 14 of the Constitution of
India........... The Capitation fee brings to the fore a
clear class bias." Admission of non-meritorious students by
charging capitation
630
fees in any form whatsoever strikes at the very root of
the constitutional scheme and our educational system. D.P.
Joshi does not come to the rescue of the private
institutions.
9.On the third question, the Bench held that having regard
to the scheme of the Act, charging of Rs. 60,000 for
admission is 'nothing but a capitation fee'. The private
medical colleges have further been given a free hand in the
matter of admission of non-Karnataka students irrespective
of merit. It held further : "if the State Government fixes
Rs. 2000 per annum as the tuition fee in government colleges
and for "Government Seats' in private medical colleges then
it is the state-responsibility to see that any private
college which has been set up with Government permission and
is being run with Government recognition is prohibited from
charging more than Rs. 2000 from any student who may be
resident of any part of India. When the State Government
permits a private medical college to be set-up and
recognises its curriculum and degrees then the said college
is performing a function which under the Constitution has
been assigned to the State Government. We are therefore of
the view that Rs. 60,000 per annum permitted to be charged
from Indian students from outside Karnataka in Para 1 (d) of
the notification is not tuition fee but in fact a capitation
fee and as such cannot be sustained and is liable to be
struck down."
10.The notification impugned was accordingly held to be
outside the scope of the Act and bad. (It was declared that
the judgment shall not be applicable to foreign students and
N.R.Is.). The Writ petition was allowed accordingly but
Mohini fain was denied admission since "she was not admitted
to the college 3n merit and secondly the course commenced in
March-April, 1991." (The decision was rendered on
30.7.1992). It was directed that the said decision shall
have only prospective operation and shall not affect the
admissions already made in accordance with the said
notification.
It is the above propositions that have provoked this batch
of writ petitions.
11. Mohini Jain was followed by a Full Bench of the Andhra
Pradesh High Court in Kranti Sangram Parishad v. NJ. Reddy,
(1992) 3 A.L.T. 99. the Respondents in those writ petitions
including the State of Andhra Pradesh have filed a number of
S.L.Ps. seeking leave to appeal against the said judgment.
In the said S.L.Ps., certain issues peculiar to those
matters
631
arise, which we are not dealing with herein. This decision
is concerned mainly with the correctness of Mohini jain and
the following three questions, which were framed by us at
the hearing. The three questions are:
(1)Whether the Constitution of India guarantees a
fundamental right to education to its citizens ?
(2)Whether a citizen of India has the fundamental right to
establish and run an educational institution under Article
19(1)(g) or any other provision in the Constitution ?
(3)Whether the grant of permission to establish and the
grant of affiliation by a University imposes an obligation
upon an educational institution to act fairly in the matter
of admission of the students ?
Before we deal with the above questions, it would be
appropriate to notice the legal and relevant factual
position obtaining in three others States, namely Andhra
Pradesh, Maharashtra and Tamil Nadu. All the matters before
us arise from these four States only. Notice in these
matters were however directed to all the States in the
country. None has appeared excepting the above four States.
ANDHRA PRADESH
12.The Andhra Pradesh Education Act, 1982 was enacted by
the State Legislature with a view to consolidate and amend
the laws relating to the educational system in the State of
Andhra Pradesh, for reforming, organising and developing the
said educational system and to provide for matters connected
therewith or incidental therewith. By virtue of sub-section
(3) of Section 1, it applies to all educational institutions
and tutorial institutions in the State except those governed
by the University Acts or the A.P. Intermediate Education
Act, 1971. Section 2 defines certain expressions occurring
in the Act. Clause (11) defines the expression 'college' to
include a medical college established or maintained and ad-
ministered by or affiliated to or associated with or
recognised by any University in the State. Clause (18)
defines 'educational institution' to mean recognised schools
and colleges including Medical Colleges. Chapter-VI
(Sections 18 to 33) deals with establishment of educational
institutions, their administration and control. Section 18
says that Government may, for the purpose of implementing
the provisions of the Act, provide adequate
632
facilities for imparting education either by establishing
and maintaining educational institutions by itself or by
permitting any local authority or private body of persons to
establish and maintain educational institutions. Section 19
classifies the educational institutions into (a) State
institutions (b) local authority institutions and (c)
private institutions. Section 20 deals with grant of
permission for establishment of educational institutions.
It says that the competent authority (as defined in Clause
(12) of Section 2) shall from time to time conduct a survey
to identify the educational needs of the locality under its
jurisdiction and notify in the prescribed manner through the
local newspapers calling for applications from the
educational agencies desirous of establishing educational
institutions. In pursuance of such notification,
applications may be filed either by existing institutions or
new institutions as also by local authorities for
establishment of new institutions or for expansion of the
existing ones. Sub-section (3) prescribes the requirements
which have to be satisfied by an applicant, the matters with
respect to which the competent authority has to be satisfied
before grant of permission and the steps that have to be
taken by the person (to whom the permission is granted)
within the specified period. According to the sub-section,
an application has to be accompanied by (1) title deeds
relating to the site for building, play-grounds and garden
proposed to be provided. (2) Plans approved by the local
authorities concerned which shall conform to the rules
prescribed therefore and (3) documents evidencing
availability of the financing needed for constructing the
proposed buildings. The Authority must be satisfied before
granting the permission that there is a need for providing
educational facilities to the people in the locality, that
there is adequate financial provision for continued and
efficient maintenance of the institution as prescribed by
the competent authority and evidence that the institution
is proposed to be located in sanitary and healthy
surroundings. The local authority or the body of persons to
whom the permission is granted has to appoint the teaching
staff qualified according to the rules made by the
Government in this behalf and satisfy other requirements
laid down by the Act, rules and the orders made thereunder,
within the period specified by the authorities. In
default of such compliance, it shall be competent to the
Authority to cancel the permission. Sub-section (4) makes
it punishable for anyone to establish an educational
institution otherwise than in accordance with the provisions
of the Act Anyone running an institution after cancellation
of the permission is also punishable.
633
13.Section 20-A declares that on and from the commencement
of the A.P. Education (Amendment) Act, 1987, no individual
shall establish a private institution. The institutions
already established by individuals however are not affected
by the said provision. Section 21 deals with grant and
withdrawal of recognition of institution. It provides that
the competent authority may by order in writing grant
recognition to an educational institution permitted to be
established under Section 20 subject to such conditions as
may be prescribed in regard to the accommodation, equipment,
appointment of teaching staff and so on. It further
provides that if any local authority or other private
educational institution fails to fulfil all or any of the
conditions of recognition or commits any of the other
irregularities mentioned in sub-section (2), its recognition
may be withdrawn. It is not necessary to notice to other
provisions in the Act.
14.In the year 1983, the Legislature of Andhra Pradesh
enacted the Andhra Pradesh Educational Institutions
(Regulation of Admission and Prohibition of Capitation Fee)
Act, 1983. The Act was made to provide for regulation of
admission into educational institutions and to prohibit the
collection of capitation fee in the State of Andhra Pradesh.
It would be appropriate to notice the preamble to the Act.
It reads:
"Whereas the undesirable practice of
collecting capitation fee at the time of
admitting students into educational
institutions is on the increase in the State;
And whereas, the said practice has been
contributing to large scale commercialisation
of Education;
And whereas, it is considered necessary, to
effectively curb this evil practice in order
to avoid frustration among the meritorious and
indigent students and to maintain excellence
in the students of education;
Be it enacted by the Legislature of the State
of Andhra Pradesh in the Thirty-fourth year of
the Republic of India as follows:'
15.The Act was brought into force on and with effect from
30th January, 1983. Section 2 contains the interpretation
Clause. Clause (b) defines the expression 'capitation fee"
to mean any amount collected in
634
excess of the fee prescribed under section 7. Section 3
provides that admission into educational institutions in the
State shall be made on the basis of the marks obtained in
the qualifying examination or on the basis of the ranking
assigned in the entrance test conducted by such authority
and in such manner as may be prescribed. So far as Medical
and Engineering colleges are concerned, it is provided that
admission thereto shall be made exclusively on the basis of
the ranking assigned in the entrance test. The State has
also reserved to itself the power to specify seats for
Scheduled Castes, Scheduled Tribes and Backward classes.
Section 4 provides that even a minority educational
institutions shall have to admit students on the basis of
merit while admitting the students belonging to that
minority or other students. Section 5 prohibits the
capitation fee. It says 'the collection of any capitation
fee by any educational institution or by any person who is
incharge of or is responsible for the management of the
institution is hereby prohibited.' Section 6 says that any
donations made to educational institution shall be made only
in the prescribed manner and not otherwise, and that the
money so received shall be deposited and applied in the
prescribed manner.
Section-7 regulates the fee that can be charged by an
educational institution. It would be appropriate to read
the section here in its entirety:
7. (1) 'It shall be competent for the
Government by notification, to regulate the
tuition fee or any other fee that may be
levied and collected by any educational
institution in respect of each class of
students.
(2)No educational institution shall collect
any fees in excess of the fee notified under
sub-section (1).
(3)Every educational 'institution shall
issue an official receipt for the fee
collected by it."
Section 9 provides for penalties in case of contravention of
the provisions of the Act. The punishment prescribed is not
less than three years and not exceeding seven years, in
addition to fine. Section 15 confers upon the Government
the power to make rules to carry out the purposes of the
enactment.
16. The 1983 Act was amended in the year
1992 by inserting Section
635
3-A, which section reads as follows:
"Notwithstanding anything contained in Section
3, but subject to such rules as may be made in
this behalf and the Andhra Pradesh Educational
Institutions (Regulation of Admission) Order
1974, it shall be lawful for the management of
any un-aided private Engineering College,
Medical College, Dental College and such other
class of un-aided educational institutions as
may be notified by the Government in this
behalf to admit students into such Colleges or
educational institutions to the extent of one
half of the total number of seats from among
those who have qualified in the common
entrance test or in the qualifying
examination, as the case may be, referred to
in sub-section (1) of Section-3 irrespective
of the ranking assigned to them in such test
or examination and nothing contained in
Section 5 shall apply to such admission."
It is necessary to notice what precisely this Section
provides for. It starts with a non-obstante clause
'Notwithstanding anything contained in Section 3, but
subject to such rules as may be made in this behalf and the
Andhra Pradesh Educational Institutions (Regulation of
Admission) Order 1974 (Presidential order issued under
Article 371-D of the Constitution)"; it then says that it
shall be lawful for the management of any un-aided private
Engineering college, Medical College, Dental College and
such other class of un-aided educational institutions as may
be notified by the Government in this behalf to admit
students into such Colleges or educational institutions to
the extent of 50 per cent of the seats from among those
qualified in the entrance test or the qualifying
examination, as the class may be; the section says further
rather curiously that the educational institution shall be
entitled to admit them irrespective of the ranking assigned
to them in the entrance test or qualifying examination and
further that nothing contained in Section 5 shall apply to
such admission. In short it means that it is open to a
private medical/engineering college to admit students of its
choice to the extent of 50 per cent so long as they have
qualified in the common entrance test without regard to
the ranking and/or merit. The dispensing with of the
Section 5 for the above purpose is a clear indication that
it is open to the institution to collect such capitation fee
as it can from such students. Of course, the tuition fee'
shall be same as is prescribed by
636
the Government under Section 7.
Section 3-A came into force on 15.4.1992. No Rules have been
made by the Government under the Section so far.
17.On 25.5.1992, the Government issued a notification
inviting applications for permission to establish Medical,
Dental and Engineering Colleges. The last date prescribed
for receipt of applications was 8.6.1992. The applicants for
Medical Colleges had to deposit within the said date a sum
of rupees one crore in cash, furnish bank guarantee for
another one crore and produce evidence of financial
viability to the extent of four crores. A committee was
appointed to inspect the land and other facilities offered
by the applicants. The Committee formulated its guidelines
on 28.6.1992 and submitted its report on 21.7.1992
recommending as many as 12 Medical Colleges and 8 Dental
Colleges. The then Chief Minister approved the same on
27.7.1992 and a G.O. was issued on the same day granting
permission. A number of Writ Petitions were immediately
filed in the High Court challenging the said grant as well
as Section 3-A.
18.There are a number of private engineering colleges in
the State. Until the current academic year (1992-1993), all
the seats in these colleges were filled in by the convenor
of the common entrance examination. The management had no
discretion or choice in the matter of admission of students.
They were, however, permitted to charge a particular fees
which was relatively higher than the fees charged in the
Government Engineering Colleges. Nothing more. But when
Section 3-A was introduced in the 1983 Act on 15.4.1992,
these private engineering colleges took the stand that they
are entitled to admit students to the extent of 50 per cent
of the seats according to their choice, irrespective of
merit, so long as they have qualified in the entrance test.
It is obvious that such a stand meant collection of
capitation fee as much as they could. There was an uproar
among the student and teaching community against such
admissions. Even the Government could not ignore the said
protest and intimated the private engineering colleges on
26.7.1992 not to make any admissions till the Rules are made
under Section 3-A. The engineering colleges, however, took
the stand that they have already made the admissions
according to their choice to the extent of 50 per cent.
Indeed all this was facilitated by the fact that convenor
allotted students to these engineering colleges only to the
extent of 50 per cent of their respective capacity instead
of 100% as usual
637
thereby sending an explicit signal that the colleges were
free to fill up the rest on their own. Be that as it may,
these admissions led to the filing of a batch of Writ
petitions in the Andhra Pradesh High Court. Following
Mohini Jain and also on certain other grounds, a Full Bench
of the Andhra Pradesh High Court allowed the Writ Petitions.
It declared Section 3-A up-Constitutional. It also declared
that the admissions made by the private Engineering Colleges
to the extent of 50 per cent at their own choice was
illegal. The Court further declared that the grant of
permission to 12 Medical and 8 Dental Colleges was equally
invalid. It is against the said decision that the State of
Andhra Pradesh, certain educational institutions and the
students admitted at the choice of the managements have come
forward with a number of Special leave petitions.
19.Leave is granted in all the Special leave petitions
preferred against the Full Bench decision of the Andhra
Pradesh High Court dated 18th September, 1992 in Writ
Petition No. 8248 of 1992 and batch. Besides the appeals,
there are a few writ petition-, from this State questioning
the correctness of the dicta in Mohini Jain.
STATE OF MAHARASHTRA
20.The Maharashtra Legislature enacted the Maharashtra
Educational Institutions (Prohibition of Capitotion Fee)
Act, 1987 (being Maharashtra Act No. VI of 1988) to prohibit
collection of capitation fee for admission of students to,
and the: promotion to a higher standard or class in, the
educational institutions in the State of Maharashtra and to
provide for matters connected therewith. The Preamble to
the Act declaims:
"WHEREAS the practice of collecting capitation
fee for admitting students into educational
institutions and at the time of promoting
students to a higher standard or class at
various stages of education is on the increase
in the State;
AND WHEREAS this undesirable practice has been
contributing to large scale commercialisation
of education which is not conducive to the
maintenance. of educational standards;
AND WHEREAS the National Policy on Education
1986
638
envisages that the commercialisation of
technical and professional education should be
curbed and that steps should be taken to
prevent the establishment of institutions set
up to commercialise education;
AND WHEREAS with a view to effectively curb
this evil practice, it is expedient in the
public interest to prohibit collection of
capitation fee for admission of students to,
and their promotion to a higher standard or
class in, the educational institutions in the
State of Maharashtra and to provide for
matters connected therewith; it is hereby
enacted in the Thirty- eighth year of the
Republic of India as follows:"
21. Section 2 defines certain expressions occurring in the
Act. Clause (a) defines capitation fee to mean "any
amount, by whatever name called, whether in cash or kind,
paid or collected, directly or indirectly, in excess of the
prescribed or, as the case may be, approved, rates of fees
regulated under section-4". Sub-Section (1) of Section 3
prohibits the collection of capitation fee either for
admission of a student or for his promotion to higher class.
Sub-Section (2), however, permits the management of an
educational institution to collect and accept donations from
benevolent persons, organisations, trusts and other
associations but says that no seats shall be reserved in
consideration thereof. The moneys so received shall have to
be deposited and dealt with in the prescribed manner. Sub-
section (3) provides that if in any case it is found that
any private educational institution has contravened any
provisions of the Act or the. Rules made thereunder, it
shall be directed to refund the same to the person from whom
it was collected. Section 4 empowers the Government to
regulate the tuition fee that may be received or collected
by any educational institution for admission to any course
of study in such institution. Separate fee shall have to be
prescribed for aided institutions and un-aided institutions.
In the case of un-aided institutions, the tuition fee shall
be prescribed "having regard to the usual expenditure
excluding any expenditure on lands and building or on any
such other item as the State Government may notify."
Different scales of tuition fee can be prescribed for
different institutions or different areas or different
courses of study, as the case may be. Section 7 provides
for punishment which may extend to three years and fine in
case of contravention of any provisions of Act or Rules.
639
22.It is stated that the government of Maharashtra had
prescribed an uniform fee of Rs. 6,500/- per annum in the
case of private un-aided engineering colleges, which was
raised to Rs. 8,500/ in 1991. In 1992, the fees was raised
only in the case of outside students (students outside the
Maharashtra State) to Rs. 17,000/.
It is also stated that the government of Maharashtra has
issued a notification directing that 90% of the seats in any
private engineering college shall be filled by nominees of
the Government and the remaining 10 per cent by the
management at its discretion. In the case of medical
colleges, the fee prescribed in the case of private un-aided
medical colleges for the current academic year is Rs.
30,000/ for Maharashtra students and Rs. 60,000/ in the case
of outside students. In the case of medical colleges, 20%
of the seats are allowed to be filled by the management at
their discretion. Remaining 80% seats are to be filled by
the Government nominees.
23.Mahatma Gandhi Mission, Nanded, the appellant in C.A.
No. 3573 of 1992 was permitted by the State Government to
start an un-aided medical college at Aurangabad. It is
stated that the appellant is a Public Charitable Trust
registered under Societies Registration Act, 1860 as well as
Bombay Public Trusts Act, 1950. The medical college is
affiliated to Marathwada University and is also recognised
by the Maharashtra medical council. The total intake
capacity is to seats each year. The permission to start
medical college was accorded to the appellant on
no-grant-in-aid basis. The appellant was allowed to fill
20% of the seats at their discretion from among those
students who have obtained a minimum of 50% of the marks in
the aggregate in specified subjects and have passed the
qualifying examination in their first attempt. (There is no
system of common entrance test in Maharashtra). Admissions
were accordingly made for the current academic year. Soon
after the decision of this court in Mohini Jain a large
number of students filed a writ petition in the High Court
of Bombay (Aurangabad Bench) claiming refund of the fee
collected from them in excess of the fee prescribed by the
Government for students admitted in government medical
colleges for such course. A Division Bench made an interim
order on 27th August, 1992 directing the appellant
institution to furnish a bank guarantee to the extent of 50%
of the excess amount collected by them from the students,
i.e., in a sum of Rs. 42 lakhs pending
640
disposal of the writ petition. It was further directed that
pending disposal of the writ petition, the institution shall
not collect any amount in excess of Rs. 3,000/ from any of
the students. The said interlocutory order is challenged by
the appellant in Civil Appeal No. 3572 of 1992.
24.Writ Petition 855 of 1992 is filed by Jammu and Kashmir
Parents Association of Students questioning the notification
issued by the Government of Maharashtra obligating the
outside-Maharashtra students to pay double the tuition fee
payable by the Maharashtra students.
25.Writ Petition 678 of 1992 is preferred by Maharashtra
Institute of Technology, Pune questioning the correctness of
Mohini fain and praying for issuance of a declaration that
the petitioner has a fundamental right under Article 19(1)
(g) of the Constitution of India to establish and run a
self-financing engineering college subject to compliance
with the regulatory requirements of the statute. The
petitioner has also invoked Article 19(1) (c) as conferring
upon him a right to establish/form any association to run an
engineering college on self-financing basis.
TAMIL NADU
26.Soon after the decision in Mohini Jain, the Governor of
Tamil Nadu promulgated an ordinance being ordinance No. 10
of 1992 called the Tamil Nadu Educational Institutions
(Prohibition of collection of capitation fee) Ordinance,
1992. The ordinance has since been substituted by an Act
Tamil Nadu Educational Institutions (Prohibition of
collection of capitation fee) Act, 1992, being Act No. 57 of
1992. The Act is designed to prohibit the collection of
capital fee for admission to educational institutions in the
State of Tamil Nadu and provide for matters relating
thereto. The preamble to the Act recites:
"WHEREAS the practice of collecting capital
fee for admitting students into educational
institutions is widespread in the State;
AND WHEREAS this undesirable practice, besides
contributing a large scale commercialisation
of education, has not been conducive to the
maintenance of educational standards;
641
AND WHEREAS it is considered necessary to
effectively curb this undesirable practice, in
public interest, by prohibiting the collection
of capitation fee and to provide for matters
relating thereto;
BE it enacted by the Legislative Assembly of
the State of Tamil Nadu in the Forty-third
year of the Republic of India as follows:"
27.The Act has been given effect from 20th day of August,
1992, the date on which the ordinance was issued. The
expression 'capitation fee' is defined in Clause (a) of
Section 2 to mean "any amount, by whatever name called, paid
or collected, directly or indirectly, in excess of the fee
prescribed under Section 4." Section 3 prohibits the
collection of capitation fee by any educational institution
or by any person on its behalf. Section 4 empowers the
government to regulate the fee chargeable in educational
institutions. Once such a notification is issued, no
institution can charge or collect any fee over and above the
fee prescribed. The Section reads thus:
"4. (1) Notwithstanding any contained in any
other law for the time being in force, the
Government may, by notification, regulate the
tuition fee or any other fee or deposit that
may be received or collected by any
educational institution or class or classes of
such educational institutions in respect of
any or all class or classes of students:
Provided that before issuing a notification
under this subsection, the draft of which
shall be published in the Tamil Nadu
Government Gazette stating that any objection
or suggestion which may be received by the
Government, within such period as may by
specified therein, shall be considered by
them.
(2)No educational institution shall receive
or collect any fee or accept deposit in excess
of the amount notified under sub-section (1).
(3)Every educational institution shall
issue an official receipt for the fee or
deposit received or collected by it."
Section 5 empowers the Government to regulate the
maintenance of
642
accounts by the educational institutions in such manner as
may be prescribed. Similarly, Section 6 empowers the
Government to call upon the educational institutions to
submit such returns or statements in such form and in such
manner as may be prescribed or carrying out the purposes of
the Act. Section 7 Provides for penalties in case of
contravention of any of the provisions of the Act or the
rules made thereunder. The minimum punishment is three
years imprisonment which may extend up to seven years in
addition to fine. Besides penalty, the educational
institution is also made liable to refund the excess
amount/capitation fee collected to the concerned
students/persons. Section 12 gives an overriding effect to
the provisions of the Act over any other law for the time
being in force. Section 14 confers upon the Government the
power to make rules to carry out the purposes of the Act.
It is not brought to our notice that rules have been made
under the Act as yet. Sri P.R. Seetharaman, learned counsel
for the State of Tamil Nadu, however, filed a statement 'THE
PRESENT ADMISSION FORMULA IN RESPECT OF SELF-FINANCING
PRIVATE MEDICAL COLLEGES AND ENGINEERING COLLEGES IN TAMIL
NADU'. It is necessary to set out the statement in full.
It reads:
"The Government of Tamil Nadu has also
recently constituted a committee for examining
proposals regarding regulation of fixation of
fees in respect of self-financing colleges of
medical and engineering and of Art and Science
as well as unaided courses of private aided
colleges. True copy of the order is annexed
hereto. The self-financing Medical Colleges
in Tamil Nadu are allowed to admit candidates
of their choice up to 60% of the approved
intake of the college adhering to the minimum
mark rule prescribed for Government Medical
Colleges. The remaining 40% of the seats are
allowed by the Director of Medical Education
every year and this is filled from among the
approved list of candidates selected for
admission to Government and Private Medical
Colleges. The self-financing private
Engineering Colleges are allowed to admit
candidates of their choice up to 50% of
approved intake of the college under
Management quota. The remaining 50% of the
seats are allowed by the Director of Technical
Education every year from among the approved
list of candidates selected for admission to
Government
643
and aided colleges. True copies of the orders
passed by the Government of Tamil Nadu are
annexed hereto.
DATED AT DELHI THIS 10TH DAY OF DECEMBER,
1992.
COUNSEL FOR TAMIL NADU."
28.Sri Seetharaman further stated that the Government will
insist that from the students admitted against 40%
government seats, only the fee collected in government
medical colleges will be allowed to be collected. He also
brought to our notice that the government has constituted a
committee to go into and frame rules regulating the fee
structure in self-financing medical engineering and other
colleges. (vide G.O.M.S. 1172 Education (JI) Deptt. dated
30.11.1992.).
29.Writ Petition 701 of 1992 is filed by the Annamalai
University and its Pro-Chancellor, Dr. M.A.M. Ramaswamy
questioning the provisions of the above Act and the
correctness of the principles enunciated in Mohini Jain. A
writ of mandamus is sought by this institution directed to
the respondents (State of Tamil Nadu, Union of India and the
University Grants Commission) 'to forbear from in any manner
interfering with the right of the petitioner to collect
capitation fees by whatever nomenclature the said fee or
payment may be described from the students seeking admission
into various degree courses in the colleges under the
control of the petitioner University to cover a reasonable
return on the capital investment and meet the recurring
expenditure every year for running the course in the
colleges including for running Rajah Sir Muthiah Medical
College and Hospital from the various students who seek
admission and who have the requisite merit to be admitted
and who are ready and @g to pay such amount.' 'Yet another
mandamus is sought directing the respondents to ensure that
the petitioners are not compelled to charge merely the rates
of fees as charged by colleges run by the State Government
from the students who have the requisite merit for admission
irrespective of their capacity to contribute for the
maintenance and running of the college as and by way of
payment of fees by whatever nomenclature it may be called.
30.The petitioners have come forward with the following
case: Annamalai University is an autonomous residential
unitary university es-
644
tablished and incorporated under the Annamalai University
Act, 1928 enacted by the then Madras Legislature. It has 45
faculties including Engineering and Technology and Medicine.
So far as the medical college is concerned, the annual
intake is 125. Against this strength of 125, the petitioner
admits 50 students belonging to Scheduled Castes, Scheduled
Tribes and backward classes. Only a nominal fee is
collected from them. From the remaining 75 students, a sum
of Rs. 4 lakhs is collected by way of fees. This sum of Rs.
4 lakhs is hardly sufficient to meet the cost of medical
education. Unless this minimum fee of Rs. 4 lakh is
collected from at least 75 students, it is not possible for
the petitioner to run the medical college which is attached
to a hospital. While so, the Governor of Tamil Nadu has
issued the aforesaid ordinance prohibiting the capitation
fee. This ordinance has evidently been issued pursuant to
the decision of this Court in Mohini Join. if the petitioner
is compelled to collect only that fee which is charged by
the Government in Government Medical Colleges, it would be
impossible to run the medical college. It has to close
down. The impugned ordinance (by the date of filing of writ
petition the Act replacing the ordinance had not yet come
into force) is violative of the fundamental right of the
petitioners to establish and administer a medical college by
collecting appropriate amounts from the students who are
ready and willing to pay the same for their admission into
the medical college, says the petitioner.
PART II
Question No. 1.- "Whether the Constitution of Inda
guarantees a fundamental right to education to its
citizens?'
31.Right to education is not stated expressly as a
fundamental right in Part Ill. This Court has, however, not
followed the rule that unless a right is expressly stated as
a fundamental right, it cannot be treated as one. Freedom
of Press is not expressly mentioned in Part III, yet it has
been read into and inferred from the freedom of speech and
expression. Express Newspapers v. Union of India,,[1959]
S.C.R. 12. More particularly, from Article 21 has sprung up
a whole lot of human rights jurisprudence viz., right to
legal aid and speedy trial Hussain Ara Khatoon [1979] 3
S.C.R. 532 to A.R. Antulay, [1992] 1 S.C.R. 225, the right
to means of livelihood Olga Tellis, [1985] Supp. 2 S.C.R.
51, right to dignity and privacy, Karak. Singh [1964] 1
S.C.R. 332, right to health Vincent, v. Union of India
[1987]
645
2 S.C.R. 468), right to pollution-free environment M.C.
Mehta v. Union of India 119881 1 S.C.R. 279 and so on. Let
us elaborate.
32.In Express Newspapers V. Union of India, [1959] S.C.R.
12 it has been held.
"The freedom of speech comprehends the freedom
of press and the freedom of speech and press
are fundamental and personal rights of the
citizens.'
33.Article 21 declares that no person shall be deprived of
his life or personal liberty except according to the
procedure established by law. It is true that the Article
is worded in negative terms but it is now well-settled that
Article 21 has both a negative and an affirmative dimension.
As far back as 1962, a Constitution Bench (comprising of six
learned Judges) in Singh v. State of Uttar Pradesh and Ors.,
[1964] 1 S.CR. 332 decided on 18th December, 1962 considered
the content of the expression "personal, liberty" occurring
in Article 21. Rajgopala Ayyangar, J. speaking for the
majority, observed:
"We shall now proceed with the examination of
the width, scope and content of the expression
"Personal liberty" in Article 21. We feel
unable to hold that the term was intended to
bear only this narrow interpretation but on
the other hand consider that "personal
liberty' is used in the Article as a
compendious term to include within itself all
the varieties of rights which go to make up
the 'personal liberties" of man other than
those deal with in the several clauses of Art.
19(1). In other words, while Art. 19(1) deals
with particular species or attributes of that
freedom, "personal liberty' in Art. 21 takes
in and comprises the residue."
The leaned Judge quoted the dissenting opinion of Field, J.
(one of those dissenting opinions which have out-lived the
majority pronouncements) in Munn v. Illinois, (1877 (94)
U.S. 113/142 attributing a broader meaning to the word
"fife' in the fifth and fourteenth amendments to the U.S.
Constitution, which correspond inter alia to Article 21 of
our Constitution. The learned Judge held that the word
'personal liberty' would include the privacy sanctity of a
man's home as well as the dignity of the individual.
646
The minority Judges, however, placed a more expansive
interpretation on Article 21. They said:
"No doubt the expression' personal liberty' is
a comprehensive one and the right to move
freely is an attribute of personal liberty.
It is said that the freedom to move freely is
carved out of personal liberty and, therefore,
the expression 'personal liberty' in Art. 21
excludes that attribute. In our view, this is
not a correct approach. Both are independent
fundamental rights, though there is
overlapping. There is no question of one
being carved out of another. The fundamental
right of life and personal liberty has many
attributes and some of them are found in Art.
19. If a person's fundamental right under
Art. 21 is infringed, the State can rely upon
a law to sustain the action, but that cannot
be a complete answer unless the said law
satisfies the test laid down in Art. 19(2) so
far as the attributes covered by Art. 19(1)
are concerned."
34. In Maneka Gandhi v. Union of India, [1978] S.C. 597
Bhagwati, J. held that the judgment in, R. C. Cooper v.
Union of India, 1970 S.C. 564 has the effect of overruling
the majority opinion and of approving the minority opinion
in Kharak Singh.
35.In Bolling v. Sharpe, 98 Lawyers Ed. 884 Warren, CJ.
speaking for the U.S. Supreme Court observed "although the
court has not assumed to define "liberty' with any great
precision, that term is not confined to mere freedom from
bodily restraint. Liberty under law extends to the full
range of conduct which the individual is free to pursue, and
it cannot be restricted except for a proper governmental
objective." Having said so, the learned Judge proceeded to
observe "segregation in public education is not reasonably
related to any proper governmental objective,, arid thus it
imposes on Negro children of the District of Columbia a
burden that constitutes an arbitrary deprivation of their
liberty in violation of the Due Process Clause.'
36.The word "life" occurring in Article 21 too has
received a broad and expansive interpretation., While it is
not necessary to refer to all of them, reference must be
made to the decision in Olga Tellis v. Bombay
647
Municipal Corporation [1985] Suppl. 2 S.C.R. 51.
Chandrachud, CJ. speaking for a Constitution Bench of this
court observed:
"The sweep of the right to life conferred by
Article 21 is wide and far reaching. It does
not mean merely that life cannot be
extinguished or taken away as, for example, by
the imposition and execution of the death
sentence, except according to procedure
established by law. That is but one aspect of
the right to life. An equally important facet
of that right is the right to livelihood
because, no person can live without the means
of living, that is, the means of livelihood.
If the right to livelihood is not treated as a
part of the constitutional right to life, the
easiest way of depriving a person his right to
life would be to deprive him of his means of
livelihood to the point of abrogation. Such
deprevation would not only denude the fife of
its effective content and meaningfulness but
it would make life impossible to live. And
yet, such deprivation would not have to be in
accordance with the procedure established by
law, if the right to livelihood is not
regarded as a part of the right to fife.
That, which alone makes it possible to live,
leave aside what makes life viable, must be
deemed to be an integral component of the
right to life. Deprive a person of his right
to livelihood and you shall have deprived him
of his life.........
Article 39(a) of the Constitution, which is a
Directive Principle of State Policy, provides
that the State shall, in particular, direct
its policy towards securing that the citizens,
men and women equally, have the right to an
adequate means of livelihood. Article 41,
which is another Directive Principle provides,
inter alia, that the State shall, within the
limits of its economic capacity and
development, make effective provision for
securing the right to work in cases of
unemployment and of undeserved want. Article
37 provides that the Directive Principles,
though not enforceable by any court, are
nevertheless fundamental in the governance of
the country. The Principles contained in
Articles 39(a) and 41 must be regarded as
equally fundamen-
648
tal in the understanding and interpretation of
the meaning and content of fundamental rights.
If there is an obligation upon the State to
secure to the citizens an adequate means of
livelihood and the right to work, it would be
sheer pedantry to exclude the right to
livelihood from the content of the right to
life."
37.In Bandhua Mukti Morcha v. Union of India [1984] 2
S.C.R. 67 Bhagwati J. while affirming the proposition that
Article 21 must be construed in the light of the Directive
Principles of the State Policy observed thus:
"This right to live with human dignity
enshrined in Article 21 derives its life
breath from the Directive Principles of State
Policy and particularly clauses (e) and (f) of
Article 39 and Articles 41 and 42 and at the
least, therefore, it must include protection
of the health and strength of workers men and
women, and of the tender age of children
against abuse, opportunities and facilities of
children to develop in a healthy manner and in
conditions of freedom and dignity, educational
facilities, just and humane conditions of work
and maternity relief. These are the minimum
requirements which must exist in order to
enable a person to live with human dignity
In D.S. Nakara v. Union of India, [1983] S.C.R. 130, a
Constitution Bench explained the significance of the
addition of the expression "Socialist" in the preamble of
our Constitution in the following words:
"During the formative years.... socialism aims
at providing all opportunities for pursuing
the educational activity There will be
equitable distribution of national cake....
In Vincent v. Union of India, [1987] 2 S.C.R. 468, it was
held by a Division Bench of this Court that:
"In a welfare State, therefore, it is the
obligation of the State to ensure the creation
and the sustaining of conditions congenial to
good health In a series of pronouncements,
during the recent years, this court has culled
out
649
from the provisions of Part IV of the
Constitution, the several obligations of the
State and called upon it to effectuate them in
order that the resultant pictured by the
Constitution fathers may become a reality.'
In A.R.Antulay v. R.S. Naik, [1992] 1 S.C.R. 225, a
Constitution Bench of this Court held that Article 21
creates a right in the accused to be tried speedily and that
the said right encompasses an the stages of a criminal case.
It was held that the violation of this right of the accused
may entail the very quashing of the charges.
Interplay of parts III and IV/-
38.This Court has also been consistently adopting the
approach that the fundamental rights and directive
principles are supplementary and complementary to each other
and that the provisions in Part III should be interpreted
having regard to the Preamble and the directive principles
of the State policy. The initial hesitation to recognise
the profound significance of Part IV has been given up long
ago. We may explain.
While moving for consideration the interim report on
fundamental rights, Sardar Vallabhai Patel described both
the rights mentioned in Pam III and IV as 'fundamental
rights' one justificiable and other non-justiciable. In
his supplemental report, he stated:
"There were two parts of the report; one
contains fundamental rights which were
justiciable and the other part of the report
refers to fundamental rights which were not
justiciable but were directives."
This statement indicates the significance attached to
directive principles by the founding fathers. It is true
that in The state of Madras v. Champakam Dorairajan 119591
S.C.R. 995, fundamental rights were held preeminent vis-a-
vis Directive Principles but since then there has been a
perceptible shift in this Court's approach to the inter-play
of Fundamental Rights and Directive Principles.
39.As far back as in 1958, in the Kerala Education Bill a
Special Bench of this Court speaking through S.R. Das, CJ.,
while affirming the primacy of Fundamental Rights, qualified
the same with the following
650
observations:
Nevertheless' in determining the scope and
ambit of the fundamental rights relied upon by
or on behalf of any person or body, the court
may not entirely ignore these directive
principles of State policy laid down in Part
IV of the constitution but should
adopt the principle of harmonious construction
and should attempt to give effect to both as
much as possible "
This is also the view taken in Hanif v. State of Bihar,
[1959] S.C.R. 629 at 655.
In Keshavanda Bharati v. State of Kerala, 1973 Suppl. 521
more than one learned Judge adverted to this aspect. In the
words of Hegde and Mukherjee. JJ.:
"The Fundamental Rights and Directive
Principles con Part IV is to ignore the
sustenance provided for in the Constitution,
the hopes held out to the nation and the very
ideals on which our Constitution is built
There is no anti-thesis between the
Fundamental Rules and the Directive
Principles .... One Supplements the other."
Shelat and Grover, JJ. in their judgment
observed:
"Both Parts HI and IV .... have to be balanced
and harmonised then alone the dignity of the
individual can be achieved They (Fundamental,
Rights and Directive Principles)were meant
to supplement each other."
Mathew, J. while adopting the same approach
remarked:
"The object of the people in establishing the
Constitution was to promote justice, social
and economic liberty and equality. The modus
operandi to achieve these objectives, is set
out in Parts III and IV of the Constitution.
Both Parts III and IV enumerate certain moral
rights. Each of these Parts represents in the
main the statements in one sense of certain
aspirations whose fulfilment was regarded as
essens-
651
tial to the kind of society which the
Constitution-makers wanted to build. Many of
the articles, whether in Part III or Part IV,
represent moral rights which they have recog-
nised as inherent in every human being in his
country. The task of protecting and realising
these rights is imposed upon all the organs of
the State, namely, legislative, executive and
judicial. What then is the importance to be
attached to the fact that the provisions of
Part III are enforceable in a Court and the
provisions in Part IV are not? Is it that the
rights reflected in the provisions of Part III
are somehow superior to the moral claims and
aspirations reflected in the provisions of
Part IV? I think not. Free and compulsory
education under Article 45 is certainly as
important as freedom of religion under Article
25. Freedom from starvation is as important
as right to life. Nor are the provisions in
Part III absolute in the sense that the rights
represented by them can always be given full
implementation."
Y.V. Chandrachud, J. (as he then was) put the
same idea in the following words:
"As I look at the provisions of Parts III and
IV, I feel no doubt, that the basic object of
conferring freedoms on individuals is the
ultimate achievement of the ideals set out in
Part IV..... May I say that the directive
principles of State policy should not be
permitted to become 'a mere rope of sand'. If
the State fails to create conditions in which
the fundamental freedoms can be enjoyed by
all, the freedom of the few will be at the
mercy of the many and then all freedoms will
vanish."
40. In State of Karnataka v. Ranganatha
Reddy, Krishna Iyer, J. stated:
"Our thesis is that the dialectics of social
justice should not. be missed if the systhesis
of Part III and Part IV is to influence State
action and Court pronouncements."
In U.P.S.C Board v. Harishankar, A.I.R. 1979 S.C. 65 it was
observed: Addressed to courts, what the injunction (Article
37) means is that while
652
courts are not free to direct the making of legislation,
courts are bound to evolve, affirm and adopt principle of
interpretation which will further and not hinder the goals
set out in the Directive Principles of State Policy. This
command of the constitution must be everpresent in the minds
of the Judges while interpreting statutes which concern
themselves directly or indirectly with matters set out in
the Directive Principles of State Policy." This is on the
view that the 'State' in Article 36 read with Article 12
includes the judiciary as well.
In Minerva Mills v. Union of India A.I.R. 1980 S.C. 1789,
Chandrachud, CJ. quoted with approval the similie of
Granvlle Austin that Parts III and IV are like two wheels of
a chariot and observed that "to give absolute primacy to one
over the other is to disturb the harmony of the
Constitution.' The learned Chief Justice obserned further:
"Those rights (Fundamental Rights) are not an
end in themselves but are the means to an end.
The end is specified in Part IV.'
41.It is thus well established by the decisions of this
Court that the provisions of Parts III and IV are
supplementary and complementary to each other and that
Fundamental Rights are but a means to achieve the goal
indicated in Part IV. It is also held that the Fundamental
Rights must be construed in the light of the Directive
Principles. It is from the above stand point that Ouestion
No.1 has to be approached.
ARTICLE 21 AND RIGHT TO EDUC4TION.
42.In Bandhua Mukti March this court held that the right
to life guaranteed by Article 21 does take in 'educational
facilities". (The relevant portion has been quoted
hereinbefore). Having regard to the fundamental
significance of education to the life of an individual and
the nation, and adopting the reasoning and logic adopted in
the earlier decisions of this Court referred to
hereinbefore, we hold, agreeing with the statement in
Bandhua Mukti Morcha, that right to education is implicit in
and flows from the right to life guaranteed by Article 21.
That the right to education has been treated as one of
transcendental importance in the life of an individual has
recognised not only in this country since thousands of
years, but all over the world. In Mohini Jain the
importance of education has
653
been duly and rightly stressed. The relevant observations
have already been set out in para 7 hereinbefore. In
particular, we agree with the observation that without
education being provided to the citizens of this country,
the objectives set forth in the Preamble to the Constitution
cannot be achieved. The Constitution would fail. We do not
think that the importance of education could have been
better emphasised than in the above words. The importance
of education was emphasised in the 'Neethishatakam' by
Bhartruhari (First Century B.C.) in the following words:
"Translation:
Education is the special manifestation of man;
Education is the treasure which can be
preserved without the fear of loss;
Education secures material pleasure, happiness
and fame; Education is the teacher of the
teacher;
Education is God incarnate;
Education secures honour at the hands of the
State, not money-
A man without education is equal to animal."
The fact that right to education occurs in as many as three
Articles in Part IV viz., Articles 41, 45 and 46 shows the
importance attached to it by the founding fathers. Even
some of the Articles in Part III viz., Articles 29 and 30
speak of education.
43.In Brown v. Board of Education, 98 Lawyers Ed. 873,
Earl Warren, CJ., speaking for the U.S. Supreme Court
emphasised the right to education in the following words:
"Today, education is perhaps the most
important function
of state and eats........ It
is required in the performance of our most
basic responsibilities, even service in the
armed forces. It is the very foundation of
good citizenship. Today it is the principal
instrument in awaken-
654
ing the child to cultural values, in preparing
him for later professional training, and in
helping him to adjust normally to his
environment. In these days, it is doubtful
any child may reasonably be expected to
succeed in life if he is denied the
opportunity of an education."
In Wisconsin v. Yoder, 32 L.Ed. 2d, 15 the
Court recognised that:
"Providing public schools ranks at the very
apex of the function of a State."
The said fact has also been affirmed by eminent
educationists of modern India like Dr. Radhakrishnan, J.P.
Naik, Dr. Kothari and others.
44.It is argued by some of the counsel for the petitioners
that Article 21 is negative an character and that it merely
declares that no person shall be deprived of his life or
personal liberty except according to the procedure
established by law. Since the State is not depriving the
respondents-students of their right to education, Article 21
is not attracted, it is submitted. If and when the State
makes a law taking away the right to education, would
Article 21 be attracted, according to them. This argument,
in our opinion, is really born of confusion; at any rate, it
is designed to confuse the issue. The first question is
whether the right to life guaranteed by Article 21 does take
in the right to education or not. It is then that the
second question arises whether the State is taking away that
right. The mere, fact that the State is not taking away the
right as at present does not mean that right to education is
not included within the right to life. The content of the
right is not determined by perception of threat. The
content of right to life is not to be determined on the
basis of existence or absence of threat of deprivation. The
effect of holding that right to education is implicit in the
right to fife is that the State cannot deprive the citizen
of his right to education except in accordance with the
procedure prescribed by law.
45.In the above state of law, it would not be correct to
contend that Mohini Jain was wrong in so far as it declared
that "the right to education flows directly from right to
life.' But the question is what is the content of this
right? How much and what level of education is necessary to
make the life meaningful? Does it mean that every citizen
of this country can call upon the State to provide him
education of his choice? In other words, whether the
citizens of this country can demand that the State provide
655
adequate number of medical colleges, engineering colleges
and other educational institutions to satisfy all their
educational needs? Mohini Jain seems to say, yes. With
respect, we cannot agree with such a broad proposition. The
right to education which is implicit in the right to fife
and personal liberty guarenteed by Article 21 must be
construed in the fight of the directive principles in Part
IV of the Constitution So far as the right to education is
concerned, there are several articles in Part IV which
expressly speak of it. Article 41 says that the "State
shall within the limits of its economic capacity and
development make effective provision for securing the right
to work, to education and to public assistance in cases of
unemployment, old age, sickness and disablement, and in
other cases of underserved want.' Article 45 says that "the
State shau endeavour to provide, within a period of ten
years from the commencement of this Constitution, for free
and compulsory education for all children until they
complete the age of fourteen years.' Article 46 commands
that 'the State shall promote with special care the
educational and economic interests of the weaker sections of
the people, and, in particular, of the Scheduled Castes and
the Scheduled Tribes, and shall protect them from social
injustice and all forms of exploitation." Education means
knowledge and Knowledge itself is power.' As rightly
observed by Johan Adams, 'the preservation of means of
knowledge among the lowest ranks is of more importance to
the public than all the property of all the rich men in the
country" (Dissertation on canon and fuedal law, 1765). It
is this concern which seems to underlie Article 46. It is
the tyrants and bad rulers who are afraid of spread of
education and knowledge among the deprived classes. Witness
Hitler railing against universal education. He said:
'Universal education is the most corroding and
disintegrating poison that liberalism has ever invented for
its own destruction.' (Rauschning, The voice of destruction:
Hider speaks). A true democracy is one where education is
universal where people understand what Is good for them and
nation and know how to govern themselves. The three
articles 45, 46 and 41 are designed to achieve the said goal
among others. It is in the light of these articles that the
content and parameters of the right to education have to be
determined. Right to education understood in the context of
Articles 45 and 41, means. (a) every child/citizen of this
country has a right to free education until he completes the
age of fourteen years and (b) after a child/citizen
completes 14years, his right to education is circumscribed
by the
656
limits of the economic capacity of the State and its
development We may deal with both these limbs separately.
Right to free education for all children until they complete
the age of fourteen years (45-A). It is noteworthy that
among the several articles in part IV, only Article 45
speaks of a time-limit; no other article does. Has it no
significance? Is it a mere pious wish, even after 44 years
of the Constitution? Can the State flout the said direction
even after 44 years on the ground that the article merely
calls upon it to "endeavour to provide" the same and on the
further ground that the said article is not enforceable by
virtue of the declaration in Article 37. Does not the
passage of 44 years more than four times the period
stipulated in Article 45 convert the obligation created by
the article into an enforceable right? In this context, we
feel constrained to say that allocation of available funds
to different sectors of education in India discloses an
inversion of priorities indicated by the Constitution. The
Constitution contemplated a crash programme being undertaken
by the State to achieve the goal set out in Article 45. It
is relevant to notice that Article 45 does not speak of the
limits of its economic capacity and development' as does
Article 41, which inter alia speaks of right to education.
What has actually happened is more money is spent and more
attention is directed to higher education that to and at
the cost of primary education. (By primary education, we
mean the education, which a normal child receives by the
time he completes 14 years of age). Neglected more so are
the rural sectors, and the weaker sections of the society
referred to in Article 46. We clarify, we are not seeking
to lay down the priorities for the government we are only
amphasising the constitutional policy as disclosed by
Articles 45, 46 and 41. Surely the wisdom of these
constitutional provisions is beyond question. This
inversion of priorities has been commended upon adversely by
both the educationists and economists.
Gunnar Myrdal the noted economist and sociologist, a
recognised authority on South Asia, in his book "Asian
Drama" (abridged Edition published in 1972) makes these
perceptive observations at page 335:
"But there is another and more valid criticism
to make. Although the declared purpose was to
give priority to the increase of elementary
schooling in order to raise the rate of
literacy in the population, what has actually
happened is that secondary schooling has been
rising much faster and
657
tertiary schooling has increased still more
rapidly. There is a fairly general tendency
for planned targets of increased primary
schooling not to be reached, whereas targets
are over-reached, sometimes substantially, as
regards increases in secondary and,
particularly, tertiary schooling. This has
all happened in spite of the fact that
secondary schooling seems to be three to five
times more expensive than primary schooling,
and schooling at the tertiary level five to
seven times more expensive than at the
secondary level.
What we see functioning here is the distortion
of development from planned targets under the
influence of the pressure from parents and
pupils in the upper strata who everywhere are
politically powerful. Even more remarkable is
the fact that this tendency to distortion from
the point of view of the planning objectives
is more accentuated in the poorest countries,
Pakistan, India, Burma and Indonesia, which
started out with far fewer children in primary
schools and which should therefore have the
strongest reasons to carry out the programme
of giving primary schooling the highest
priority. It is generally the poorest
countries that are spending least, even
relatively, on primary education, and that are
permitting the largest distortions from the
planned targets in favour of secondary and
tertiary education.'
In his other book 'Challenge of World Poverty' (published in
1970) he discusses elaborately in chapter 6 'Education'
the reasons for and the consequences of neglect of basic
education in this country. He quotes J.P. Naik, (the
renowned educationist whose Report of the Education
Commission, 1966 is still considered to be the most
authoritative study of education scene in India) as saying
'Educational development......... is benefiting the 'haves'
more than the "have not'. This is a negation of social
justice and 'planning' proper' and our constitution speaks
repeatedly of social justice (Preamble and Article 38(1)).
As late as 1985, the Ministry of Education has this to say
in para 3.74 of its publication "Challenge of Education a
policy perspective". It is stated there:
658
"3.74. Considering the constitutional
imperative regarding the universalisation of
elementary education it was to be expected
that the share of this sector would be
protected from attribution. Facts, however,
point in the opposite direction. From a share
of 56 per cent in the First Plan, it declined
to 35 per cent in the Second Plan, to 34 per
cent in the Third Plan, to 30 per cent in the
Fourth Plan. it started going up again only in
the Fifth Plan, when it was at the level of 32
per cent, increasing in Sixth Plan to 36 per
cent, stiff 20 per cent below the First Plan
level. On the other hand, between the First
and the Sixth Five Year Plans, the share of
university education went up from 9 per cent
to 16 per cent."
Be that as it may, we must say that at least now the State
should honour the command of Article 45. It must be made a
reality atleast now. Indeed, the 'National Education
Policy 1986' says that the promise of, Article 45 will be
redeemed before the end of this century. Be that as it may,
we hold that a child (citizen, has a fundamental right to
free education up to the age of 14 years.
46.This does not however mean that this obligation can be
performed only through the State schools. It can also be
done by permitting, recognising and aiding voluntary non-
governmental organisations, who are prepared to impart free
education to children. This does not also mean that unaided
private schools cannot continue. They can, indeed, they too
have a role to play. They meet the demand of that segment
of population who may not wish to have their children
educated in State-run schools. They have necessarily to
charge fees from the students. In this judgment, however,
we do not wish to say anything about such schools or for
that matter other private educational institutions except
'professional colleges, This discussion is really
necessitated on account of the principles enunciated in
Mohini jain and the challenge mounted against those
principles in these writ petitions.
47.At this juncture, it would be appropriate to refer to
the additional affidavit filed by the Union of India. In
this affidavit. the present state of primary and upper
primary education is set out. (Primary stage means Classes I
to V. Upper primary stage means classes VI to VIII). After
659
setting out the particulars of number of schools and
enrollment therein, it is stated in para 3 that 'this
increase provided Indian Education System with one of the
largest systems in the world, providing accessibility within
1 Km. distance of Primary schools to 8.26 habitations con-
taining about 94% of the country's population. Growth in
enrolment in the decade of 80s showed an acceleration that
has now brought enrolment rates close of 100% at primary
stage.' Again in para 4, under the sub-heading "Free
education", the following statement occurs:
"4. In the endeavour to increase enrolment
and achieve the target of UEE, all State
Governments have abolished tuition fees in
Government Schools run by local bodies and
private aided institutions is mostly free in
these States; however, in private unaided
schools which constitute 3.7.% of the total
elementary schools in the country, some fee is
Charged. Thus, overall it may be said that
education up to elementary level in
practically all schools is free. Other costs
of education, such as text books, uniforms,
schools bags, transport etc. are not borne by
States except in a very few cases by way of
incentives to children of indigent families or
those belonging to Scheduled Caste/Scheduled
Tribes categories. The reason why the State
Government are unable to bear this additional
expenditure is that 96% of expenditure on
elementary education goes in meeting the
salaries of teaching and non-teaching staff."
Para 5 of the affidavit deals with "Compulsory
education". It reads as follows:
"5. 14 States and 4 Union Territories have
enacted legislation to make educational
compulsory but the socioeconomic compulsions
that keep the children away from schools have
restrained them from prescribing the rules and
regulations whereby those provisions can be
endorsed."
The affidavit also mentions the steps taken by Central and
State Governments in pursuance of Naitonal Education Policy
including "Operation Blackboard" and its contribution to the
increase in primary education. It was indeed gratifying to
note these facts, though much more remains to
660
be done to raise the quality of instruction.
Before proceeding further we think it right to say this: We
are aware that "Education is the second highest sector of
budgeted expenditure after the defence. A little more than
three per cent of the Gross National Product is spent in
education", as pointed out in para 231 of 'Challenge of
Education. But this very publication says that "in
comparison to many countries, India spends much less on
education in terms of the proportion of Gross National
Product' and further 'in spite of the fact that educa-
tional expenditure continues to be the highest item of
expenditure next only to Defence the resource gap for
educational needs is one of the major problems. Most of the
current expenditure is only in the form of salary payment.
It hardly needs to be stated that additional capital
expenditure would greatly augment teacher productivity
because in the absence of expenditure on other heads even
the utilisation of staff remains low.' We do realise that
ultimately it is a question of resources and resources-wise
this country is not in a happy position. AR we are saying
is that while allocating the available resources, due regard
should be had to the wise words of Founding Fathers in
Articles 45 and 46. Not that we are not aware of the
importance and significance of higher education. What may
perhaps be required is a proper balancing of the various
sectors of education.
Right to education after the child/citizen completes the age
of 14 years.
48.The right to education further means that a citizen has
a right to call upon the State to provide educational
facilities to him within the limits of its economic capacity
and development. By saying so, we are not transferring
Article 41 from part IV to Part III we are merely relying
upon Article 41 to illustrate the content of the right to
education flowing from Article 21. We cannot believe that
any State would say that it need not provide education to
its people even within the limits of its economic capacity
and development. It goes without saying that the limits of
economic capacity are, ordinarily speaking, matters within
the subjective satisfaction of the State.
49.In the fight of the above enunciation, the apprehension
expressed by the counsel for the petitioners that by reading
the right to education into Article 21, this Court would be
enabling each and every citizen of this country to approach
the courts to compel the State to provide him such education
as he chooses must be held to be unfounded. The right to
free
661
education is available only to children until they complete
the age of 14 years. Thereafter, the obligation of the
State to provide education is subject to the limits of its
economic capacity and development. Indeed, we are not
stating anything new. This aspect has already been
emphasised by this Court in Francis C Mullin v.
Administrator, Union Territory of Delhi, [1981] 2 S.C.R.
516. While elaborating the scope of the right guaranteed
under Article 21, this court stated:
"But the question which arises is whether the
right to life is limited only to protection of
limb or faculty or does it go further and
embrace something more. We think that the
right to life includes right to live with
human dignity and all that goes along with it
viz., the bare necessities of life such as
adequate nutrition, clothing and shelter and
facilities for reading, writing and expressing
oneself in diverse forms, freely moving about
the mixing and commingling with fellow human
beings. Of course, the magnitude and content
of the components of this right would depend
upon the extent of the economic development of
the country, but it must in any view of the
matter, include a right to the basic
necessities of life and also the right to
carry on such functions and activities as
constitute the bare minimum expression of the
humanself"
50.We must hasten to add that just because we have relied
upon some of the directive principles to locate the
parameters of the right to education implicit in Article 21,
it does not follow automatically that each and every
obligation referred to in Part IV gets automatically
included within the purview of Article 21. We have held the
right to education to be implicit in the right to fife
because of its inherent fundamental importance. As a matter
of fact, we have referred to Articles 41, 45 and 46 merely
to determine the parameters of the said right.
PART III
Question Nos. 2 and 3.
51.It would be convenient to deal with question Nos.2 and 3
together. The contentions urged by the counsel for the
petitioners can be broadly summarised in the following
words:
662
(a)The State has no monopoly in the matter of imparting
education. Every citizen has the fundamental right to
establish an educational institution as a part of the right
guaranteed to him by Article 19(1)(g) of the Constitution.
This right extends even to the establishment of an
educational institution with a profit motive i.e., as a
business adventure. The said right, no doubt, is subject to
such reasonable restrictions as may be placed upon it by a
law within the meaning of clause (6) of Article 19. But for
the said restrictions, the right is absolute.
(b)The vice lies not in the establishment of educational
institutions by individuals and private bodies but in
unnecessary State control. The law of demand and
supply..... what may be called the 'market forces.......
must be allowed a free play. Because there are more number
of persons seeking admission that the existing institutions
can provide that the several ins complained of have
developed.
(c)The establishment of an education institution is no
different from any other venture e.g., starting a business
or industry. It is immaterial whether the institution is
established with or without profit motive. Indeed, only
when there is profit motive that persons with means would
come forward to open more and more schools and colleges.
There are not many persons available today who are prepared
to donate large funds for establishing such institutions by
way of charity or philantrophy.
(d)Even if it is held, for any reason, that a person has
not right to establish an education institution as a
business venture, he has atleast the right to establish a
self-financing educational institution. Such a institution
may also be described as an institution providing cost-based
education. This means that it is open to a person to
collect amounts from willing parties and establish an
institution to educate such persons or their children, as
the case may be. Even in an established institution, the
fees that may collected from the students must be such as
not only to defray the expenditure of running the
institution but also for improvement. expansion,
diversification and growth. In such institutions, the
quantum of the fees to be charged should. be left to the
concerned institutions. The Government should have to say
in the matter. So far as the court is concerned, it is not
possible for it, in the very nature of things, to go into
this issue. The needs of each educational institution may
be different. The standard of education imparted and the
facilities provided may be different
663
from institution to institution. May be, the Government or
the Court may insist that as a condition for running such
institution, a reasonable number of seats should be allotted
to students purely on merit, who shall be asked to pay only
such fees as is charged in similar Governmental
institutions. If this is done to which the petitioners
have no objection it will not only meet the needs of
education of those who have the capacity to pay but it will
also meet the needs of other meritorious students who are
not able to obtain admission in the Governmental
institutions and are also not in a position to pay the fees
normally charged such private institutions. Several facts
and figures are furnished to us to show how in each State
these private educational institutions are providing a large
number of "free seats' to the nominees of the Government.
It is pointed out that all these students would not have had
an opportunity. of studying the course of their choice but
for the existence of these private educational institutions.
(e)Mohini Jain's case was not right in saying, in the
above situation, that charging of any amount, by whatever
name it is called, over and above' the fee charged by the
Government in its own colleges, must be described as
capitation fee. Saying so amounts to imposing an impossible
condition. It is simply not possibly for the private
educational institutions to survive if they are compelled to
charge only that fee as is charged in Governmental
institutions. The cost of educating an engineering or a
medical graduate is' very high. All that cost is borne by
the State in Governmental colleges but the State does not
subsidise the private educational institutions. The private
educational institutions have to find their own finances and
that can come only from the students.
(f)Even if the right to establish an educational
institution is not trade or business within the meaning of
Article 19(1)(g), it is certainly an 4occupation' within
the meaning of the said clause. Indeed, the use of the four
expressions profession, occupation, trade or business in
Article 19(1)(g) was meant to cover the entire field of
human activity. In such a situation, it is not necessary
for the petitioners to pinpoint to which particular
expression does their activity relate. It is enough to say
that the petitioners do have the right to establish private
educational institutions at any rate, self-financing/cost-
based private educational institutions. This right can be
restricted only by a law as contemplated by clause (6) of,
Article 19.
664
(g)The right to establish and administer an educational
institution (by a member of the majority community, religion
or linguistic) arises by necessary implication from Article
30. The Constitution could not have intended to confine the
said right only to minorities and deprive the majority
communities therefrom.
(h)The Government or the University cannot insist of
stipulate as a condition of recognition/affiliation that the
private educational institutions should admit students
exclusively on merit. It has been well recognised by this
court that one who pays for the education is also entitled
to stipulate the manner in which he well admit students'.
There is no reason why such a right should not be recognised
in the case of the private educational institutions.
Moreover, there may be several kinds of private educational
institutions; they may be established for achieving certain
specified purposes. For example, medical or engineering
college may be established to cater to the needs of a
particular region or a district. Similarly, another
educational institution may have been established by members
of a particular community to educate their own children.
The Gulburga Medical College in the State of Karnataka, it
is pointed out, is established to meet the educational needs
in the field of medicine to the students belong to Gulburga,
Raichur and Bidar districts, formerly included within the
Nizam's dominions and which were included in the State of
Karnataka on the reorganisations of States. Similarly, the
Kempe Gowda Medical College in Karnataka, it is submitted,
has been established by members of Vokkaliga community.
Their wishes and objectives have to be respected. There may
be yet another institution which may have been established
with the and of a large donation made by a charitable-minded
person e.g., Annamalai University in Tamil Nadu. If such
University stipulates that members of the founder's family
or their nominees will be admitted every year to the extent
of a certain percentage, no fault can be found therewith.
(i)By virtue of mere recognition and/or affiliation these
private educational institutions do not become
instrumentalities of the State within the meaning of Article
12 of the Constitution. The concept of 'State action'
cannot be extended to these colleges so as to subject them
to the discipline of Part III. It may be a different matter
if the institution is in receipt of any aid, partially and
wholly, from the State. In such a situation, the command of
Article 29(2) comes into play but even that does not oblige
the institution to admit the students exclusively on the
basis of merit but only not to
665
deny admission to anyone any of the grounds mentioned
therein.
52.On the other hand, it is contended by the learned
counsel for the respondents as also by the learned counsel
for the India Medical Council and All India Council for
Technical Education that: (a) imparting of education has
always been recognised in this country from times immemorial
as the religious duty. Both Hinduism and Islam treated it
as such. It has also been recognised as a charitable
object. But never has it been recognised as a trade or
business. It is a mission, not a trade. Commercialization
of education has always been looked upon with disfavor in
this country. As far back as in 1956, the Parliament
expressed its intention by enacting the University Grants
Commission Act which specified the prevention of
commercialization of education as one of the duties of the
University Grants Commission. The same intention has been
expressed by several enactments made by the Parliament and
State Legislatures since then.
(b)Imparting of education is the most important function
of the State. This duty may. be discharged by the State
directly or through the instrumentality of private
educational institutions. But when the State permits a
private body or an individual to perform the said function
it is its duty to ensure that no one gets an admission or an
advantage on account of his economic power to the detriment
of a more meritorious candidate.
(c)The very concept of collecting the cost of the
education that is what the concept of cost-based or self-
financing educational institutions means is morally
abhorrent and is opposed to public policy. A cavitation fee
does not cease to be a capitation fee just because it is
called cost-based education or by calling the institution
concerned as a self-financing institution. These
expressions are but a cover a mere pretence for
collecting capitation fee. It is nothing but exploitation.
It is an elitist concept basically opposed to the
constitutional philosophy By allowing such education, two
classes will come into being. The concept suffers from
class bias.
(d)If, for any reason, it is held that a citizen or a
person has a right to establish an educational institution,
the said right does not carry with it the right to
recognition or the right to affiliation, as the case may be.
It has been repeatedly held by this court that even a
minority educational institution has no fundamental right to
recognition or affiliation. If so, no such right can be
envisaged in the case of majority community or in the case
666
individuals or persons. Once this is so, it is open to the
State or the University according recognition or affiliation
to impose such conditions as they think appropriate in the
interest of fairness, merit, maintenance of standards of
education and so on. In short, it is open to the Government
or the University to make it a condition of
recognition/affiliation that the admission of students, in
whichever category it may be, shall be on the basis of merit
and merit alone. The institutions obtaining
recognition/affiliation will be bound by such condition and
any departure therefrom renders the recognition/affiliation
liable to be withdrawn.
(e)Even if the Government or the University does not
expressly impose such a condition, such condition is
implicit by virtue of the fact that in such a situation, the
activity of the private educational institution is liable to
be termed as 'State action'. The fact that these
institutions perform an important public function coupled
with the fact that their activity is closely inter-twined
with governmental activity, characterises their action as
'State action'. At the minimum, the requirement would be to
act fairly in the matter of admission of students and
probably in the matter of recruitment' and treatment of its
employees as well. These institutions are further bound not
to charge any fee or amount over and above what is charged
in similar governmental institutions. If they need
finances, they must find them through donations or with the
help of religious or charitable organisations. They cannot
also say that they will first collect capitation fees and
with that money, they will establish an institution. At the
worst, only the bare running charges can be charged from the
students. The capital cost cannot be charged from them.
53.Before we express ourselves upon the rival contentions
urged by the parties, it would be appropriate to notice the
relevant statutory provisions-.
UNIVERSITY GRANTS COMMISSION ACT.
54.The University Grants Commission Act was enacted by the
Parliament in 1956 to provided for the ordination and
determination of standards in Universities and for that
purpose to establish a University Grants Commission.
Chapter III deals with the powers and functions of the
Commission. Section 12 empowers the Commission to take, in
consultation with the Universities and other concerned
bodies, all such steps as it may think fit for the promotion
and ordination of University education
667
and for, the determination and maintenance of standards of
teaching, examination and research in the Universities.
Section 12-A is relevant for our purposes. Clause (a) in
Sub-section (1) defines the expression 'affiliation'. It
reads:
"Affiliation' together with its grammatical
variations, includes in relation to a college,
recognition or such college, association of
such college with, and admission of such
college to the privileges of a University."
Clause (b) defines the expression 'college' in
the following words:
" 'College' means any institution whether
known as such or by any other name which
provides for a course of study for obtaining
any qualification from a University and which
in accordance with the rules and regulations
of such University is recognised as competent
to provide for such course of study and
present students undergoing such course of
study for the examination for the award of
such qualification."
Sub-secton (2) empowers the Commission inter alia to
regulate the fee chargeable in constituent and affiliated
colleges, if such a course is found to be necessary to
ensure that "no candidate secures admission to such course
of study by reason of economic power and thereby prevents a
more meritorious candidate from securing admission to such
course of study." It would be appropriate to set out Sub-
section (2) in its entirety. It reads:
"Without prejudice to the generality of the
provisions of
Section if, having regard to,
(a) the nature of any course of study for
obtaining any qualification from any
University,
(b) the types of activities in which persons
obtaining such qualification are likely to be
engaged on the basis of such qualification,
(c) the minimum standards which a person
possessing
such qualification should be able to maintain
in his
668
work relating to such activities and the
consequent need for ensuring, so far as may
be, that no candidate secures admission to
such course of study by reason of economic
power and thereby prevents a more meritorious
candidate from securing admission to such
course of study-, and
(d) all other relevant factors,
the Commission is satisfied that it is
necessary so to do in the public interest, it
may, after consultation with the University or
Universities concerned, specify the regula-
tions the matters in respect of which fees may
be charged, and the scale of fees in
accordance with which fees shall be charged in
respect of those matters on and from such date
as may be specified in the regulations in this
behalf, by any college providing for such
course of study from or in relation to any
student in connection with his admission to
and prosecution of such course of study-
Provided that different matters and different
scales of fees may be so specified in relation
to different Universities or different classes
of colleges or different areas."
Sub-Section (3) then says that where regulations of the
nature referred to in sub-section (2) have been made, no
college shall levy or charge fees in excess of what is
specified. Sub-section (4) provides the consequence of
violation by any college of such regulations. Sub-section
(5) says that violation shall also mean disaffiliation.
Section 14 prescribes the consequences of failure of
Universities to comply with the recommendations of the
Commission. It includes withholding of funds. Sub-section
(1) of Section 22 which occurs in Chapter IV declares that
'the right of conferring or granting degree shall be
exercised only by a University established or incorporated
by or under a Central Act, a provincial Act or a State Act
or an institution deemed to be a University under Section 3
or ,in institution specially empowered by an Act of
Parliament to confer or ,;rant degrees." Sub-section (2)
emphatically declares that "save as provided in Sub-section
(1), no person or authority shall confer or grant or hold
self or itself out as entitled to confer or grant any
degree.' Sub-section (3) defines the expression 'degree'.
It means "any such degree as may, with
669
the previous, approval of the Central Government, by
specified in this behalf by the on by notification in the
official gazette." Section 23 prohibits the use of the word
'University' in the name of any on other than a University
established or incorporated under an enactment or a deemed
University. Section 24 provides for penalties for violation
of Sections 22 and 23. Section 25 confers the rule making
power upon the central Government while Section 26 confers
the regulation power upon the Commission.
INDIAN MEDICAL COUNCIL ACT:
55. The Indian Medical Council Act, 1956 was enacted by the
parliament to provide for the reconstitution of the Medical
Council of India and the maintenance of a medical register
for India and for matters connected therewith. The
expression 'recognised medical qualification' is defined in
clause (h) of Section 2 to mean "any-of the medical
qualifications included in the schedules." The expression
'approved institution' has been defined in clause (a) to
mean 'a hospital, health centre or every such institution
recognised by a University as an institution in which a
person may undergo training, if any, required by his course
of study before the award of any medical qualification to
him." Section 11 declares that the medical qualifications
granted by any University or medical institution in India
which are included in the first schedule to the Act shall be
recognised medical qualifications for the purposes of the
Act. It also provides the procedure for any University or
Medical institution applying to the Central Government for
recognising new or other qualifications. Section 13 says
that the medical qualifications granted by medical
institutions in India not included in the First Schedule but
included in Part I of the Third Schedule shall also be
recognised medical qualifications for the purposes of the
Act. Section 19 provides for withdrawal of recognition in
cases where the Council finds lowering of standards of
proficiency, knowledge or skill. Section 21 provides for
the maintenance of an Indian Medical Register. Section 27
says that a person registered in the Indian Medical Council
Register shall be entitled to practice as a medical
practitioner in any part of India and to recover in due
course of law in respect of such practice any expenses,
charges or fees to which he is entitled. Section 32 confers
the rule making power upon the Government while Section 33
confers the regulation making power upon the Council. The
First Schedule mentions the names of the Universities and
the recognised medical qualifications
670
awarded by them. Same is done by Part I of the Third
Schedule.
ALL INDIA COUNCIL FOR TECHNICAL EDUCATION ACT, 1987.
56.This Act has been made by the Parliament for the
establishment of the 'All India Council for Technical
Education' with a view to the proper planning and
coordinated development of the technical education system
throughout the country, promotion of qualitative improvement
of such education and other allied matters. Section 3 of
the Act provides for the establishment of the Council while
Section 10 specifies the functions of the Council. Apart
from directing generally that the Council shall take all
such steps as it may think fit for ensuring coordinated and
integrated development of technical education and
maintenance of standards, the Act specifically empowers the
Council, inter alia, to "(j) fix norms and guidelines for
charging tuition and other fees; (k) grant approval for
starting new technical institutions and for introduction of
new courses or programmes in consultation with the agencies
concerned, and (n) take an necessary steps to prevent
commercialisation of technical education." It is true, there
is no express provision in the Act which says that no
engineering college or any other college or institution
imparting technical education shall be established except
with the permission of the Council. But this may be for the
reason that such a power was intended to be exercised by the
Council itself if it thinks necessary to do so. We are of
the opinion that the vast powers conferred upon the Council
by Section 10, 'including those specified above, do extend
to and entitle it to issue an order to the above effect. It
can also say that even in the existing institutions, no new
course, faculty or class shall be opened except with its
approval. It can also pass appropriate directions to the
existing institutions as well for achieving the purposes of
the Act. Such an order may indeed be necessary for a proper
discharge of the wide-ranging functions conferred upon the
Council.
57.It is brought to our notice by the learned counsel
appearing for the Council that the Council has evolved a
proforma of undertaking which should be executed by the
person-in-charge of any institution proposed to be
established stating inter alia that such institution will
not only observe the several orders and instructions issued
by the Council but it shall not charge any capitation fee
from the students/guardians of the students in any form.
The proforma further stipulates that in the event of
non-com-
671
pliance of any of the orders and directions issued by the
Council or the terms of the undertaking, it shall be open to
the Council to take appropriate action including withdrawal
of its approval or recognition, which automatically entails
stoppage of financial grant or assistance from the Central
and State Government. It is also brought to our notice that
the Council has issued guidelines for admission to
Engineering Degree and Engineering Diploma programmes in
G.S.R. 320 dated 15th June, 1992 in exercise of the power
conferred upon it by Section 23(1) of the Act (Section 23 of
the Act confers the regulation making power upon the
Council).
STATE ENACTMENTS:
58.As mentioned in Part I of this judgment, the States of
Andhra Pradesh, Karnataka, Maharashtra and recently the
state of Tamil Nadu have all enacted legislation prohibiting
the charging of capitation fee. We had also set out the
Preamble to the Andhra Act which Preamble is to be found
almost in every such enactment. We had referred to the A.P.
Education Act, 1982 as well which provides that no
educational institution shall be established in the State
except with the permission of the competent authority
INDIAN MEDICAL COUNCIL (AMENDMENT) ORDINANCE, 1992:
59.The last of the statutory provisions to be noticed is
of great relevance herein viz., the Indian Medical Council
(Amendment) Ordinance, 1992 being Ordinance No. 13 of 1992
issued by the President of India on 27th August, 1992. By
this Ordinance, Section 10-A to 10-C have been added besides
amending Section 33. Section 10-A provides that
notwithstanding anything contained in the Indian Medical
Council Act or any other law for the time being in force, no
medical college shall be established nor any new or higher
course of study or training opened in an existing
institution nor shall it increase its admission capacity in
any course of study or training, except with the previous
permission of the Central Government obtained in accordance
with the provisions of the said section. The section
prescribes the procedure for submitting the application, the
matters which the Central Government shall take into account
while considering the said application, the obligatory
consultation with the Council and the manner in which the
application shall be disposed of. It also
672
provides the matters which the Council should take into
consideration while making its recommendation to the Central
Government. Suffice it to mention that the several matters
which the Council and the Central Government are directed to
take into consideration are designed to ensure that a
properly equipped institution is in place before it is
permitted to impart medical education. Section 10-B
provides for non-recognition of medical qualifications
awarded by institutions which have been established without
the previous permission of the Central Government or by an
institution which violates any of the conditions in Section
10-A. Section 10-C provides that if any person has
established a medical college or has opened a new or higher
course of study in an existing college, he shall, within one
year from the date of the commencement of the Ordinance,
seek permission of the Central Government in accordance with
Section 10-A.
GROUND REALITY:
60.Notwithstanding the fact that education is the second
highest sector of budgeted expenditure after the Defence,
the outlay on education is woefully inadequate to the needs
of the people. Whereas many other countries spend six to
eight per cent of their Gross National Product on education,
our expenditure on education is only three per cent of the
Gross National Product. Seventy five to eight per cent of
the expenditure goes in paying the salaries of the teachers
and other connected staff. These are the statements made in
the Government of India publication 'Challenge of Education a policy pe
rspective" referred to hereinbelow. Even so,
on account of lack of proper supervision, lack of self-
discipline and commitment, the quality and standard of
instruction in most of the Government schools and colleges
except the professional colleges is woeful. This has
provided an occasion and an opportunity to private
educational institutions to fill the void, both in terms of
meeting the need and more particularly in the matter of
quality of instruction. Because, the State is in no
position to devote more resources and also because the need
is constantly growing, it is not possible to do without
private educational institutions. In this context, it is
appropriate nay, necessary, to notice the stand of the
Government of India in this behalf. It is thus: the Central
Government does not have the resources to undertake any
additional financial responsibility for medical or technical
education; it is unable to aid any private educational
institution financially at a level higher than at present;
therefore the policy
673
of the Central Government is to involve private and
voluntary efforts in the education sector in conformity with
accepted norms and goals; however, the private educational
institutions cannot be compelled to charge only that fee as
is charged in Governmental institutions; in 1986, the
Central Government has evolved the 'New Education Policy'
according to it, 'in the interests of maintaining the
standards and for several other valid reasons, the
commercialisation of technical and professional education
will be curbed. An alternative system will be devised to
involve private and voluntary effort in this section of
education, in conformity with accepted norms and goals.'
(vide parts 6-20); the amendments proposed to I.M.C. Act,
1956 in 1987 have not materialised so far; so far as
engineering colleges are concerned, permission is being
granted by the A.I.C.T.E. subject to the condition that they
do not collect any capitation fee; according to the
guidelines issued by the A.I.C.T.E., the technical colleges
will be permitted to recover 'only a graded percentage of
the average cost of student education, depending on whether
the institution is Government-funded, Government-aided or
unaided.' (According to the these guidelines, it is stated,
the students will be asked to pay 20% of the cost in
Government funded institutions, 30-35% in Government-aided
and 70% in unaided institutions). It is finally submitted
that:
"(a) Conferring unconditional and unqualified right to
education at all levels to every citizen involving a
constitutional obligation on the State to establish
educational institutions either directly or through State
agencies is not warranted by the Constitution besides being
unrealistic and impractical.
(b)When the Government grants recognition to private
educational institutions it does not create an agency to
fulfill its obligations under the Constitution and there is
no scope to import the concept of agency in such a
situation.
(c)The principles laid down in Mohini Jain's case do
require reconsideration.
(d)It would be unrealistic and unwise to discourage
private initiative in providing educational facilities
particularly for higher education. The private sector
should be involved and indeed encouraged to augment the much
needed resources in the field of education, thereby making
as much progress as possible in achieving the Constitutional
goals in this respect.
674
(e)At the same time, regulatory controls have to be
continued and strengthened in order to prevent private
educational institutions from commercializing education.
(f)Regulatory measures should be maintained and
strengthened so as to ensure that private educational
institutions maintain minimum standards and facilities.
(g)Admissions within all groups and categories should be
based on merit. There may be reservation of seats in favour
of the weaker sections of the society and other groups which
deserve special treatment. The norms for admission should
be pre-determined and transparent."
The stand of the State Governments of Andhra Pradesh,
Karnataka, Maharashtra and Tamil Nadu is no different.
61.The hard reality that emerges is that private
educational institutions are a necessity in the present day
context. It is not possible to do without them because the
Governments are in no position to meet the demand
particularly in the sector of medical and technical
education which call for substantial outlays. While
education is one of the most important functions of the
Indian State it has no monopoly therein. Private
educaitonal institutions including minority educational
institutions too have a role to play.
62.Private educational institutions may be aided as well
as un-aided. Aid given by the, Government may be cent per
cent or partial. So far as aided institutions are
concerned, it is evident, they have to abide by all the
rules and regulations as may be framed by the Government
and/or recognising/affiliating authorities in the matter of
recruitment of teachers and staff, their conditions of
service, syllabus, standard of teaching and so on. In
particular, in the matter of admission of students, they
have to follow the rule of merit and merit alone subject
to any reservations made under Article 15. They shall not
be entitled to charge any fees higher than what is charged
in Governmental institutions for similar courses. These are
and shall be understood to be the conditions of grant of
aid. The reason is simple: public funds, when given as
grant and not as loan carry the public character
wherever they go; public funds cannot be donated for private
purposes. The element of public character necessarily mean
a fair conduct in all respects consistent with the
constitutional mandate of Article 14 and
675
15.All the Governments and other authorities in charge of
granting aid to educational institutions shall expressly
provide for such conditions (among others), if not already
provided, and shall ensure compliance with the same. Again
aid may take several forms, For example, a medical college
does necessarily require a hospital. We are told that for a
100 seat medical college, there must be a fully equipped
700-bed hospital. Then alone, the medical college can be
allowed to function. A private medical college may not have
or may not establish a hospital of its own. It may request
the Government and the Government may permit it to avail of
the services of a Government hospital for the purpose of the
college free of charge. This would also be a form of aid
and the conditions aforesaid have to be imposed may be
with some relaxation in the matter of fees chargeable and
observed. The Government (Central and State) and all other
authorities granting aid shall impose such conditions
forthwith, if not already imposed. These conditions shall
apply to existing as well as proposed private educational
institutions.
63.So far as un-aided institutions are concerned, it is
obvious that they cannot be compelled to charge the same fee
as is charged in Governmental institutions. if they do so
voluntarily, it is perfectly welcome but they cannot be
compelled to do so, for the simple reason that they have to
meet the cost of imparting education from their own
resources and the main source, apart from
donations/charities, if any, can only be the fees collected
from the students. It is here that the concepts of 'self-
financing educational institutions' and 'cost-based
educational institutions' come in. This situation presents
several difficult problems. How does one determine the
'cost of education' and how and by whom can it be regulated?
The cost of education may very, even within the same
faculty, from institution to institution. The facilities
provided, equipment, infrastructure, standard and quality of
education obtaining may vary from institution to
institution. The court cannot certainly do this. It must
be done by Government or University or such other authority
as may be designated in that behalf. Even so, some
questions do arise whether cost-based education only means
running charges or can it take in capital outlay? Who pays
or who can be made to pay for establishment, expansion and
improvement/diversification of a private educational
institutions? Can an individual or body of persons first
collect amounts (by whatever name called) from the intending
students and with those monies establish an institution an
activity similar to builders of apartments in the cities?
How much should
676
the students. coming in later years pay? Who should work
out the economics of each institution? Any solution evolved
has to take into account all these variable factors. But
one thing is clear: commercialisation of education cannot
and should not be permitted The Parliament as well as State
Legislatures have expressed this intention in unmistakable
terms. Both in the light of our tradition and from the
stand-point of interest of general public, commercialisation
is positively harmful; it is opposed to public policy. As
we shall presently point out, this is one of the reasons for
holding that imparting education cannot be trade, business
or profession. The question is how to encourage private
educational institutions without allowing them to
commercialise the education? This is the troublesome
question facing the society, the government and the courts
today. But before we proceed to evolve a scheme to meet
this problem, it is necessary to answer a few other
questions raised before us.
RIGHT TO ESTABLISH AN EDUCATIONAL INSTITUTION-
64.Article 19(1)(g) of the Constitution declares that all
citizens of this country shall have the right "to practice
any profession, or to carry on any occupation, trade on
business". Clause (6) of Article 19, however, says:
"Nothing in sub-clause (g) of the said clause
shall affect the operation of any existing law
in so far as it imposes or prevents the State
from making any law imposing, in the interests
of the general public, reasonable restrictions
on the exercise of the right conferred by the
said clause and, in particular, nothing in the
said sub-clause shall affect the operation of
any existing law in so far as it relates to or
prevents the State from making any law
relating to:
(i)the professional or technical
qualifications necessary for practising any
profession or carrying on any occupation,
trade or business, or
(ii)carrying on by the State, or by a
corporation owned or controlled by the State
or any trade, business, industry or service
whether to the exclusion, complete or partial,
of citizens or otherwise.'
While we do not with to express any opinion on the question
whether
677
the right to establish an educational institution can be
said to be carrying on any "occupation' within the meaning
of Article 19(1)(g), perhaps, it is we are certainly of
the opinion that such activity can neither be a trade or
business nor can it be a profession within the meaning of
Article 19(1)(g). Trade or business normally connotes an
activity carried on with a profit motive. Education has
never been commerce in this country. Making it one is
opposed to the ethos, tradition and sensibilities of this
nation. The argument to the contrary has an unholy ring to
it. Imparting of education has never been treated as a
trade or business in this country since times immemorial.
It has been treated as a religious duty. It has been
treated as a charitable activity. But never as trade or
business. We agree with Gajendragadkar, J. That "education
in its true aspect is more a mission and a vocation rather
than a profession or trade or business, however wide may be
the denotation of the two latter words........ (See
University of Delhi [1961] 1 SCR 703). The Parliament too
has manifested its intention repeatedly (by enacting the
U.G.C. Act, I.M.C. Act and A.I.C.T.E. Act) that
commercialisation of education is not permissible and that
no person shall be allowed to steal a march over a more
meritorious candidate because of his economic power. The
very game intention is expressed by the Legislatures of
Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu in the
Preamble to their respective enactments prohibiting charging
of capitation fee.
65.We are, therefore, of the opinion, adopting the line of
reasoning in State of Bombay v. R.M.D.C, 1957 S.C.R. 874,
that imparting education cannot be treated as a trade or
business. Education cannot be allowed to be converted into
commerce nor can the petitioners seek to obtain the said
result by relying upon the wider meaning of 'occupation'.
The content of the expression "occupation" has to be
ascertained keeping in mind the fact that clause (g) employs
all the four expressions viz., profession, occupation, trade
and business. Their fields may overlap, but each of them
does certainly have a content of its own, distinct from the
others. Be that as it may, one thing is clear imparting
of education is not and cannot be allowed to become
commerce. A law, existing or future, ensuring against it
would be a valid measure within the meaning of clause (6) of
Article 19. We cannot, therefore, agree with the contrary
proposition enunciated in 1968 Bombay 91, 1984 A.P. 251 and
1986 Karnataka 119.
678
66.The learned counsel for the petitioners relied upon
certain decisions in support of their contention that right
to establish an educational institution flows from Article
19(1)(g). The first is in Bharat Sevashram Sangh v. State
of Gujarat [1986] 3 S.C.R. 602, a decision of a Bench
consisting of E.S. Venkataramiah and Ranganath Misra, JJ.
At page 609, while dealing with Section 33 of the Gujarat
Secondary Education Act empowering the Government to take
over an educational institution in certain situations for a
period not exceeding five years, the teamed Judges observed
that "the said provision is introduced in the interest of
the general public and does not in any way affect
prejudically the fundamental right of the management
guaranteed under Article 19(1)(g) of the Constitution."
Actually, the issue now before us was not raised or
considered in the said decision. Moreover, the decision
does not say whether it is a profession, occupation, trade
or business.
Reliance is then placed upon the Seven Judge Bench decision
in Bangalore Water Supply and Sewerage Board v. Rajappa,
[1978] 3 S.C.R. 207. Krishna Iyer, J. dealing with the
meaning of the expression "industry" in I.D. Act observed
that even educational institutions would fall within the
purview of "Industry". We do not think the said observation
in a different context has any application here.
So far as the other decision in State of Maharashtra v. Lok
Shikshan Sanstha, [1971] Suppl. S.C.R. 879 is concerned,
all that the court held there was that is view of the
operation of emergency, Article 19 is not available to the
petitioners seeking to establish an educational institution.
Article 358 was held to be a bar. But the decision does not
say that such a right does inhere in the petitioners.
67.We are also of the opinion that the said activity
cannot be called a 'profession' within the meaning of
Article 19(1)(g). It is significant to notice the words "to
practice any profession. Evidently, the reference is to
such professions as may be practised by citizens i.e.,
individuals. (See N.U.C Employees v. Industrial Tribunal,
A.I.R. 1962 S.C. 1080 at 1085). Establishing educational
institutions can by no stretch of imagination be treated as
'practising any profession'. Teaching may be a profession
but establishing an institution employing teaching and non-
teaching staff, procuring the necessary infrastructure for
running a school or college is
679
not 'practising profession'. It may be anything but not
practising a profession. We must make it clear that we have
not gone into the precise meaning an content of the
expressions profession, occupation, trade or business for
the reason that it is not necessary for us to do so-in view
of the approach we are adopting hereinafter, which would be
evident from the succeeding paragraphs. Our main concern in
the entire preceding discussion is only to establish that
the activity of establishing and/or running an educational
institution cannot be a matter of commerce.
68.For the purpose of these cases, we shall proceed on the
assumption that a person or body of persons has a right to
establish an educationtal institution in this country. But
this right, we must make it clear, is not an absolute one.
It is subject to such law as may be made by the State in the
interest of general public.
69.We must, however, make it clear, and which is of
crucial importance herein, that the right to establish an
educationcal institution does not carry with it the right to
recognition or the right to affiliation. In St. Xaviers
College v. Gujarat, [1975] 1 S.C.R. 173 it has been held
uniformly by all the nine learned Judges that there is no
fundamental right to affiliation. Ray, C.J., stated that
this has been "the consistent view of this court." They also
recognised that recognition or affiliation is essential for
a meaningful exercise of the right to establish and
administer educational institutions. Recognition may be
granted either by the Government or any other authority or
body empowered to accord recognition. Similarly,
affiliation may be granted either by the University or any
other academic or other body empowered to grant affiliation
to other educational institutions. In other words, it is
opento a person to establish an educational institution,
admit students, imparteducation, conduct examination and
award certificates to them. But he,or the educational
institution has no right to insist that the certificates
ordegree (if they can be called as such) awarded by such
institution should be recognised by the State much less
have they the right to say that the students trained by the
institution should be admitted to examinations conducted by
the University or by the Government or any other authority,
as the case may be. The institution has to seek such
recognition or affiliation from the appropriate agency.
Grant of recognition and/or affiliation is not a matter of
course nor is it a formality. Admission to the privileges
of a University is a power to be exercised with
680
great care, keeping in view the interest of the general
public and the nation. it is a matter of substantial
significance the very life-blood of a private educational
institution. Ordinarily speaking, no educational
institution can run or survive unless it is recognised by
the Government or the appropriate authority and/or is
affiliated to one or the other Universities in the country.
Unless it is recognised and/or affiliated as stated above,
it's certificates will be of no use. No one would join such
educational institution. As a matter of fact, by virtue of
the provisions of the U.G.C. Act, noticed hereinabove, no
educational institution in this country except a University
is entitled to award degrees. It is for this reason that
all the private educational institutions seek recognition
and/or affiliation with a view to enable them to send the
students trained by them to appear at the examinations
conducted by the Government/University. The idea is that if
such students pass the said examination, the
Government/University will award its degree/diploma/cer-
tificate to them. These educational institutions follow the
syllabus prescribed by the Government/University, have the
same courses of study, follow the same method of teaching
and training. They do not award their own
degrees/qualifications. They prepare their students for
University/Government examinations, request the
University/Government to permit them to appear at the
examinations conducted by them and to award the appropriate
degrees to them'. Clearly and indubitably, the
recongnised/affiliated private educational institutions,
supplement the function performed by the institutions of the
State. Theirs is not an independent activity but one
closely allied to and supplemental to the activity of the
State. In the above circumstances, it is idle to contend
that imparting of education is a business like any other
business or that it is an activity akin to any other
activity like building of roads, bridges etc. In short the
position is this. No educational institution except an
University can award degrees (Sections 22 and 23 of the
U.G.C. Act). The private educational institutions cannot
award their own degrees. Even if they award any
certificates or other testimonials they have no practical
value inasmuch as they are not good for obtaining any
employment under the State or for admission into higher
courses of study. The private educational institutions
merely supplement the effort of the State in educating the
people, as explained above. It is not an independent
activity. It is an activity supplemental to the principal
activity carried on by the State. No private education
institution can survive or subsist without recognition
and/or
681
affiliation. The bodies which grant recognition and/or
affiliation are the authorities of the State. In such a
situation, it is obligatory in the interest of general
public upon the authority granting recognition or
affiliation to insist upon such conditions as are
appropriate to ensure not only education of requisite
standard but also fairness and equal treatment in the matter
of admission of students. Since the recognising/affiliating
authority is the 'State' it is under an obligation to impose
such conditions as part of its duty enjoined upon it by
Article 14 of the Constitution. It cannot allow itself or
its power and privilege to be used unfairly. The incidents
attaching to the main activity attach to supplemental
activity as well. Affiliation/recognition is not there for
anybody to get it gratis or unconditionally. In our
opinion, no Government, authority or University is justified
or is entitled to grant recognition/affiliation without
imposing such conditions. Doing so would amount to
abdicating its obligations enjoined upon it by Part III; its
activity is bound to be characterised as unconstitutional
and illegal. To reiterate,, what applies to the man
activity applies equally to supplemental activity. The
State cannot claim immunity from the obligations arising
from Articles 14 and 15. If so, it cannot confer such
immunity upon its affiliates. Accordingly, we have evolved with the
help of the counsel appearing before us and
keeping in view the positive features of the several Central
and State enactments refeffred to hereinbefore the
following scheme which every authority granting
recognition/affiliation shall impose upon the institutions
seeking such recognition/affiliation.
The idea behind the scheme is to eliminate discretion in the
management altogether in the matter of admission. It is the
discretion in the matter of admission that is at the root of
the several ills complained of It is the discretion that has
mainly led to the commercialisation of education.
'Capitation fee' means charging or collecting amount beyond
what is permitted by law; all the Acts have defined this
expression in this sense. We must strive to bring about a
situation where there is no room or occasion for the
management or anyone on its behalf to demand or collect any
amount beyond what is permitted. We must clarify that
charging the permitted fees by the private educational
institutions which is bound to be higher than the fees
charged in similar governmental institutions by itself
cannot be characterised as capitation fees. This is the
policy underlying all the four States enactments prohibition
capitation fees. All of them recognise the necessity of
charging higher fees by private educational institutions.
682
They seek to regulate the fees that can be charged by them
which may be called permitted fees and to bar them from
collecting anything other than the permitted fees, which is
what 'Capitation fees' means. Our attempt in evolving the
following scheme precisely is to given effect to the said
legislative policy. It would be highly desirable if this
Scheme is given a statutory shape by incorporating it in the
Rules that may be framed under these enactments.
SCHEME
70.The scheme evolved herewith is in the nature of
guidelines which the appropriate Governments and recognising
and affiliating authorities shall impose and implement in
addition to such other conditions and stipulations as they
may think appropriate as conditions for grant of permission,
grant of recognition or grant of affiliation, as the case
may be. We are confining the scheme for the present
only to 'professional colleges.'
The expression Professional colleges' in this
scheme includes:
(i) medical colleges, dental colleges and
other institutions and colleges imparting
Nursing, Pharmacy and other courses allied to
Medicine, established and/or run by private
education institutions,
(ii)colleges of engineering and colleges and
institutions imparting technical education
including electronics, computer sciences,
established and/or run by private educational
institutions, and
(iii)such other colleges to which this scheme
is made applicable by the Government,
recognising and/or affiliating authority."
The expression "appropriate authority" means the Government,
University or other authority as is competent to grant
permission to establish or to grant recognition to a
professional college.
The expression 'competent authority' in this scheme means
the Government/University or other authority, as may be
designated by the Government/University or by law, as is
competent to allot students for admission to various
professional colleges in the given State.
683
It is made clear that only those institutions which seek
permission to establish and/or recognition and/or
affiliation from the appropriate authority shall alone be
made bound by this scheme. This scheme is not applicable to
colleges run by Government or to University colleges. In
short, the scheme hereinafter mentioned shall be made a
condition of permission, recognition or affiliation, as the
case may be. For each of them viz., grant of permission,
grant of recognition, grant of affiliation, these conditions
shall necessarily be imposed, in addition to such other
conditions as the appropriate authority may think
appropriate. No Private educational institutaion shall be
allowed to send its students to appear for an examination
held by any Government or other body constituted by it or
under any law or to any examination held by any University
unless the concerned institution and the relevant course of
study is recognised by the appropriate authority and/or is
affiliated to the appropriate University, as the case may
be.
(1)A professional college shall be permitted to be
established and/or administered only by a Society registered
under the Societies Registration Act, 1860 (or the
corresponding Act, if any, in force in a given State), or by
a Public Trust, religious or charitable, registered under
the Trusts Act, Wakfs Act (or the corresponding legislation,
if any, e.g., Tamil Nadu Religious and Charitable Endowments
Act and A.P. Religious and Charitable Endowments Act). No
individual, firm, company or other body of individuals, by
whatever appellation called except those mentioned above
will be permitted to establish and/or administer a
professional college. All the existing professional
colleges which do not conform to the above norm shall be
directed to take appropriate steps to comply with the same
within a period of six months from today. In default
whereof, recognition/affiliation accorded shall stand
withdrawn. (In this connection reference may be had to Rule
86(2) of Maharashtra Grant-in-aid code (referred to in State
of Maharashtra v. Lok Shikshan Sanstha, [1971] Suppl.
S.C.R. 879 which provided that schools which are not
registered under the Societies Registration Act, shall not
be eligible for grant. Grant of recognition and affiliation
is no less significance).
(2)Atleast, 50% of the seats in every professional college
shall be filled by the nominees of the Government or
University, as the case may be, hereinafter referred to as
"free seats". These students shall be selected on the basis
of merit determined on the basis of a common entrance
684
examination where it is held or in the absence of an
entrance examination, by such criteria as may be determined
by the competent authority or the appropriate to authority,
as the case may be. It is, however, desirable and
appropriate have a common entrance exam for regulating
admissions to these colleges/institutions, as is done in the
State of Andhra Pradesh. The remaining 50% seats (payment
seats) shaft be filled by those candidates who are prepared
to pay the fee prescribed therefor and who have complied
with the instructions regarding deposit and furnishing of
cash security/Bank guarantee for the balance of the amount.
The allotment of students against payment seats shall also
be done on the basis of inter se merit determined on the
same basis as in the case of free seats. There shall be no
quota reserved for the management or for any family, caste
or community which may have established such college. The
criteria of eligibility and all other conditions shall be
the same in respect of both free seats and payment seats.
The only distinction shall be the requirement of higher fee
by the 'payment students'. The Management of a professional
college shall not be entitled to impose or prescribe any
other and further eligibility criteria or condition for
admission either to free seats or to payment seats. It
shall, however, be open to a professional college to provide
for reservation of seats for constitutionally permissible
classes with the approval of the affiliating University.
Such reservations, if any, shall be made and notified to the
competent authority and the appropriate authority atleast
one month prior to the issuance of notification @ for
applications for admission to such category of colleges. In
such a case, the competent authority shall allot students
keeping in view the reservations provided by a college. The
rule of merit shall be followed even in such reserved
categories.
(3)The number of seats available in the professional
colleges (to which this scheme is made applicable) shall be
fixed by the appropriate authority. No professional college
shall be permitted to increase its strength except under the
permission or authority granted by the appropriate
authority.
(4)No professional college shall call for applications for
admission separately or individually. AD the applications
for admission to all the seats available in such,colleges
shall be called for by the competent authority alone, along
with applications for admission to Government/University
colleges of nature. For example, there shall be only one
notification
685
by the competent authority calling for applications for all
the medical colleges in the State and one notification for
all the engineering colleges in the State and so on. The
application forms for admission shall be issued by the
competent authority (from such offices, centres and places
as he may direct). The application form shall contain a
column or a separate part wherein an applicant can indicate
whether he wishes to be admitted against a payment seat and
the order of preference, up to three professional colleges.
(5)Each professional college shall intimate the competent
authority, the State Government and the concerned University
in advance the fees chargeable for the entire course
commencing that academic year. The total fees shall be
divided into the number of years/semesters of study in that
course. In the first instance, fees only for the first
year/semester shall be collected. The payment students will
be, however, required to furnish either cash security or
bank grantee for the fees payable for the remaining
years/semesters. The fees chargeable, in each professional
college shall be subject to the ceiling prescribed by the
appropriate authority or by a competent Court. The
competent authority shall issue 'a brochure, on payment of
appropriate charges, along with the application form for ad-
mission, giving full particulars of the courses and the
number of seats available, the names of the colleges their
location and also the fees chargeable by each professional
college. The brochure win also specify the minimum
eligibility conditions, the method of admission (whether by
entrace test or otherwise) and other relevant particulars.
(6)(a) Every State Government shall forthwith constitute a
Committee to fix the ceiling on the fees chargeable by a
professional college or class of professional colleges, as
the case may be. The Committee shall consist of a Vice-
Chancellor, Secretary for Education (or such Joint
Secretary, as he may nominate) and Director, Medical
Education/Director Technical Education. The committee shall
make such enquiry as it thinks appropriate. It shalt
however, give opportunity to the professional colleges (or
their association(s), if any) to place such material, as
they think fit. It shall, however, not be bound to give any
personal hearing to anyone or follow any technical rules of
law. The Committee shall fix the fee once every three years
or at such longer intervals, as it may think appropriate.
(b) It would be appropriate if the U.G.C. frames
regulations under
686
Section 12A (3) of the U.G.C. Act, regulating the fees which
the affiliated colleges, operating on no-grant-in-aid basis,
are entitled to charge. The Council for Technical Education
may also consider the advisability of issuing directions
under Section 10 of the A.I.C.T.E. Act regulating the fees
that may be charged in private unaided educational
institutions imparting technical education. The Indian
Medical Council and Central government may also consider the
advisability of such regulation as a condition for grant of
permission to new medical colleges under Section 10-A and to
impose such a condition on existing colleges under Section
10-C.
(c)The several authorities mentioned in sub-paras (a) and
((1) shall decide whether a private educational institution
is entitled to charge only that fee as is required to run
the college or whether the capital cost involved in
establishing a college can also be passed on to the students
and if so, in what manner. Keeping in view the need, the
interest of general public and of the nation, a policy
decision may be taken. It would be more appropriate if the
Central Government and these several authorities (U.G.C.,
I.M.C. and A.I.C.T.E.) cordinate their efforts and evolve a
broadly uniform criteria in this behalf. Until the Central
Government, U.G.C., I.M.C. and A.I.C.T.E. issue
order/regulations in this behalf, the committee referred to
in the sub-para (a) of this para shall be operative. In
other words, the working and orders of the committee shall
be subject to the orders/regulations, issued by Central
Government, U.G.C., I.M.C. or A.I.C.T.E., as the case may
be.
(d)We must hasten to add that what we have said in this
clause is merely a reiteration of the duty nay, obligation placed up
on the Governments of Andhra Pradesh,
Maharashtra, Karnataka and Tamil Nadu by their respective
legislatures to wit, Section 7 of Andhra Pradesh Act 5 of
1983, Section 4 of Maharashtra Act 6 of 1988, Section 5 of
Karnataka Act of 1984 and Section 4 of Tamil Nadu Act 57 of
1992. Other States too may have to have similar provisions,
carrying statutory force.
(7)Any candidate who fulfils the eligibility conditions
would be entitled to apply for admission. After the free
seats in professional colleges are filled up, atleast 10
days' time will be given to the candidates (students) to opt
to be admitted against payment seats. The candidates shall
be entitled to indicate their choice for any three colleges
(if available). In such a case, he shall comply with the
deposit and cash security/Bank guarantee
687
- taking the institution charging the highest fees as the
basis within the said period of ten days. If he is admitted
in an institution, charging less fee, the difference amount
shall be refunded to him. (The cash security or Bank
guarantee shall be in favour of the competent authority, who
shall transfer the same in favour of the appropriate college
if that student is admitted).
(8)The results of the entrance examination, if any, held
should be published atleast in two leading newspapers, one
in English and the other in vernacular. The payment
candidates shall be allotted to different professional
colleges on the basis of merit-cum-choice. The allotment
shall be made by the competent authority. A professional
college shall be bound to admit the students so allotted.
The casual vacancies or unfilled vacancies, if any, shall
also be filled in the same manner. The management of a
professional college shall not be permitted to admit any
student other than the one allotted by the competent
authority whether against free seat or payment seat, as
the case may be. It is made clear that even in the matter
of reserved categories, if any, the principle of inter se
merit shall be followed. All allotments made shall be
published in two leading newspapers as aforesaid and on the
notice boards of the respective colleges and at such other
places as the comptent authority may direct, along with the
marks obtained by each candidates in the relevant entrance
test or qualifying examination, as the case may be. No
professional college shall be entitled to ask for any other
or further payment or amount, under whatever name it may be
called, from any student allotted to it whether against
the free seat or payment seat.
(9)After making the allotments, the competent authority
shall also prepare and publish a waiting list of the
candidates along with the marks obtained by them in the
relevant test/examination. The said list shall be followed
for filling up any casual vacancies or 'drop-out'-vacancies
arising after the admissions are finalised. These vacancies
shall be filled until such date as may be prescribed by the
competent authority. Any vacancies still remaining after
such date can be filled by the Management.
It is made clear that it shall be open to the appropriate
authority and the competent authority to issue such further
instructions or directions, as they may think appropriate
not inconsistent with this scheme, by way of elaboration and
elucidation.
The scheme shall apply to and govern the admissions to
professional
688
colleges commencing from the academic year 1993-94.
We are aware that until the commencement of the current
academic year, the Andhra Pradesh was following a somewhat
different pattern in the matter of filling the seats in
private unaided engineering colleges. Though all the
available seats were being filled by the allottees of the
Convenor (State) and the managements were not allowed to
admit any student on their own a uniform fee was collected
from all the students. The concepts of 'free seats' and
'payment seats' were therefore not relevant in such a
situation all were payment seats only. We cannot say that
such a system is constitutionally not permissible. But our
idea in devising this scheme has been to provide more
opportunities to meritorious students, who may not be able
to pay the enhanced fee prescribed by the government for
such colleges. The system devised by us would mean
correspondingly more financial burden on payment students
whereas in the aforesaid system (in vogue in Andhra Pradesh)
the financial burden is equally distributed among, all the
students. The theoretical foundation for our method is,
that a candidate/student who is stealing a march over his
compatriot on account of his economic power should be made
not only to pay for himself but also to pay for another
meritorious student. This is the social justification
behind the fifty per cent rule prescribed in clause (2) of
this scheme. In the interest of uniformity and in the fight
of the above social theory, we direct the State of Andhra
Pradesh to adhere to the system derived by us.
71.In view of the above, we do not think it necessary to
go into or answer Question No. 3. In our opinion, the said
question requires debate in a greater depth and any
expression of opinion thereon at this juncture is not really
warranted.
PART IV
VALIDITY OF SECTION 3-A OF THE ANDHRA PRADESH
EDUCATIONAL INSTITUTIONS (REGULATION OF ADMISSION
AND PROHIBTION OF CAPITATION FEE) ACT 1983.
72.Section 3-A of the aforesaid Act, as introduced by the
Andhra Pradesh Amendment Act 12 of 1992, read as follows:
"Notwithstanding anything contained in Section
3, but subject to such rules as may be made in
this behalf and the
689
Andhra Pradesh Educational Institutions
(Regulation of admission) Order, 1974, it
shall be lawful for the management of any
unaided private engineering college, medical
college, dental college and such other class
of unaided educational institutions as may be
notified by the Government in this behalf to
admit students into such colleges or
educational institutions to the extent of one
half of the total number of seats from among
those who have qualified in the common
entrance test or in the qualifying examina-
tion, as the case may be, referred to in sub-
section (1) of Section 3 irrespective of the
ranking assigned to them in such test or
examination and nothing contained in Section 5
shall apply to such admissions."
A Full Bench of the Andhra Pradesh High Court has struck it
down as being violative of Article 14 of the Constitution
and also on the ground of repugnancy with Section 12-A of
the University Grants Commission Act, 1956 Kranti Sangram
Parishad v. Sri N.J. Reddy, (1992) 3 A.L.T. 99. The
correctness of the said decision is assailed before us.
73.This Section is in truth, in the nature of an exception
to the other provisions of the Act. It says that
notwithstanding anything contained in Section 3, but subject
to the rules as may be framed by the Government in this
behalf, the private educational institutions of the nature
mentioned therein, shall be entitled to admit students to
the extend of half the number of seats from among those who
have qualified in the common entrace test or the qualifying
examination, as the case may be. This statement is
accompanied by two significant features viz., (1) admission
of such students could be irrespective of the ranking
assigned to them to the common entrance test or other
qualifying examination, as the case may be; and (2) it is
made clear that nothing contained in Section 5 shall apply
to such admissions. The Section is, thus, an exception to
Section 3, 5. Section 3, it may be remembered, provides that
admissions have to be made, to all categories, strictly in
accordance with merit. The section, read as a whole, leads
to the following consequences:
(a)It is open to the private educational institutions to
charge as much amount as they can for admission. It will be
a matter of bargain between the institution and the student
seeking admission.
690
(b)The admission can be made without reference to inter-se
merit of paying candidates. The institution will be
entitled to pick and choose the candidates among the
applicants on such considerations as it may deem fit.
(c)Section 5, which prohibtis collection of capitation fee
by an education institutions, is expressly made inapplicable
to such admissions. This is not without a purpose. The
purpose is to permit the institutions to charge as much as
they can in addition to the collection of the prescribed
tuition fee.
74.We have held hereinbefore that the educational activity
of the private educational institutions is supplemental to
the main effort by the State and that what applies to the
main activity applies equally to the supplemental activity
as well. If Article 14 of the Constitution applies as it
does, without a doubt to the State institutions and
compels them to admit students on the basis of merit and
merit alone (subject, of course, to any permissible
reservations wherein too, merit inter-se has to be
followed) the applicability of Article 14 cannot be excluded
from the supplemental effort/activity. The State
Legislature had, therefore, no power to say that a private
educational institution will be entitled to admit students
of its choice, irrespective of merit or that it is entitled
to charge as much as it can, which means a free hand for
exploitation and more particularly, commercialisation of
education, which is impermissible in law. No such immunity
from the constitutional obligation can be claimed or
conferred by the State Legislature. On this ground alone,
the Section is liable to fail.
In the circumstances, it is not necessary for us to go into
the question whether the section is bad on account of
repugnancy with Section 12-A of the University Grants
Commission Act. It is enough to say that the said section
falls foul of Article 14 for the reasons given above the
must accordingly fail. We agree that the offending portions
of Section 3-A cannot be severed from the main body of the
section and, therefore, the whole section is liable to fall
to the ground.
It is not brought to our notice that the enactments of other
three States viz., Karnataka, Tamil Nadu and Maharashtra
contain similar offending provisions. Indeed, they do not.
None of their provisions says that, the Management of a
private educational institution can admit students, against
"payment seats", "irrespective of the ranking assigned to
them in
691
such test (entrance test) or examination." Much less do they
say that to such admissions, the provision prohibiting
capitation fee shall not apply. True, they do not say
expressly that such admissions shall be made on the basis of
merit, but that, according to us, is implicit. If the
notifications or order issued thereunder provide otherwise,
either expressly or by implication, they would be equally
bad for the reason given above.
75.Once Section 3-A is struck down, the question arises as
to what should happen to the students who were admitted by
the Private Engineering Colleges in this State, at their own
discretion, to the extent of the 50% of the available seats.
The High Court has invalidated these admissions but they are
continuing now by virtue of the orders of stay granted by
this Court. A fact which must be kept in mind in this
behalf is this: Until the previous year, the Government of
Andhra Pradesh has been permitting these private engineering
colleges to collect a higher fees from all the students
allotted to them. (We are told that the fees permitted to be
collected was Rs. 10,000 per annum for the previous year).
Of course, all the available seats were filled up by
students allotted by the convenor of the common entrance
exam; no one could be admitted by these colleges on their
own. Now, for the current year, these colleges admitted 50%
of the students in their own discretion which necessarily
means collection of capitation andior arbitrary admissions
for their own private reasons. At the same time, these
colleges have been collecting the same fees (Rs. 10,000 per
annum) both from the students allottee by the convenor as
also from those admitted by themselves. Thus they have
reaped a double advantage.
76.It is submitted by Shri Shanti Bhushan the learned
counsel for these students that they were innocent parties
and had obtained admission in a bona fide belief that their
admissions were being made properly. They have been
studying since them and in a few months their academic year
will come to a close. May be, the managements were guilty
of irregularity, he says, but so far as the students are
concerned they have done nothing contrary to law to deserve
the punishment awarded by the Full Bench of the High Court.
77.It is true. as pointed out by the High Court that these
admissions were made in a hurry but the fact remains that
they have been continuing in the said course under the
orders of this Court over the last about four months. As
stated hereinbefore, the present situation has been brought
692
about by a combination of circumstances, namely the
enactment of Section 3-A, the allotment of students to the
extent of 50% only by the convenor and the failure of the
Government to immediately rectify the misunderstanding of
the convenor. In the circumstances we are not satisfied
that these students should be sent out at this stage. May
be, the result is rather unfortunate but we have to weigh
all the relevnt circumstances. At the same time we are of
the opinion that the managements of these private
engineering colleges should not be allowed to walk away with
the double advantage referred to above. Since they have
admitted students of their own choice to the extent of 50%
and also because it is not possible to investigate or verify
for what consideration those admissions were made, we think
it appropriate to direct that these colleges should charge
only that fee from the 50% 'free students' as is charged for
similar courses in the concerned university engineering
colleges. For the remaining years of their course these
colleges shall collect only the said fee, which for the sake
of convenience may be called the 'government fee'. The
balance of the amount which they have already collected
during this year shall be remitted into the Government
account within six weeks from today, in default whereof the
recognition and affiliation given to these colleges shall
stand withdrawn. In other words whichever college fails to
comply with the above direction it will stand disaffiliated
on the expiry of six weeks from today and the recognition
granted to it, if any, by any appropriate authority shall
also stand withdrawn.
78.So far as Writ Petition 855 of 1992 is concerned, it
complains of charging of double the tuition fee is case of
students coming from outside the Maharashtra. The matter
stand concluded against the petitoners by a decision of a
Constitution Bench of this Court in D.P. Joshi v. State of
Madhya Pradesh, [1955] 1 SCR 1215. This Writ Petition is
accordingly dismissed.
79.Coming to Civil Appeal No. 3573 of 1992 filed by Mahatma
Gandhi Mission, we are inclined, in all the facts and
circumstances of the case to stay the operation of the
impugned order which is only an interlocutory order
effective till the disposal of the main Writ Petition. Writ
Petition may be disposed of according to law and in the
light to this Judgment.
693
PART V
80. For the above reasons the Writ Petitions and Civil
Appeals except (W.P. (C) 855/92, C.A. 3573/92 and the Civil
Appeals arising from S.L.Ps. 13913 and 13940/92) are
disposed of in the following terms:
1. The citizens of this country have a fundamental right
to education. The said right flows from Article 21. This
right is, however, not an absolute right. Its content and
para meters have to be determined in the light of Articles
45 and 41. In other words every child/citizen of this
country has a right to free education until he completes the
age of fourteen years. Thereafter his right to education is
subject to the limits of economic capacity and development
of the State.
2. The obligations created by Articles, 41, 45 and 46 of
the Constitution can be discharged by the State either by
establishing institutions of its own or by aiding,
recognising and/or granting affiliation to private educa-
tional institutions. Where aid is not granted to private
educational institutions and merely recognition or
affiliation is granted it may not be insisted that the
private education institution shall charge only that fee as
is charged for similar courses in governmental institutions.
The private educational institutions have to and are
entitled to charge a higher fee, not exceeding the ceiling
fixed in that behalf. The admission of students and the
charging of fee in these private educational institutions
shall be governed by the scheme evolved herein set out in
Part III of this Judgment.
3. A citizen of this country may have a right to establish
an educational institution but no citizen, perosn or
institution has a right much less a fundamental right, to
affiliation or recognition, or to grant-in-aid from the
State. The recognition and/or affiliation shall be given by
the State subject only to the conditions set out in, and
only accordance with the scheme contained in Part III of
this Judgment. No Government/University or authority shall
be competent to grant recognition or affiliation except in
accordance with the said scheme. The said scheme shall
constitute a condition of such recognition or affiliation,
as the case may be, in addition to such other conditions and
terms which such Government, University or other authority
may choose to impose.
Those receiving aid shall however, be subject to all such
terms and
694
conditions, as the aid giving authority may impose in the
interest of general public.
4. Section 3-A of the Andhra Pradesh Educational
Institutions (Regulation of Admission And Prohibition of
Capitation Fee) Act, 1983 is violative of the equality
Clause enshrined in Article 14 and is accordingly declared
void. The declaration of the Andhra Pradesh High Court in
this behalf is affirmed.
5. Writ Petition No. 855 of 1992 is dismissed.
Civil Appeal No. 3573 of 1992 is allowed and the impugned
order is set aside. The main Writ Petition wherein the said
interim order has been passed may now be disposed of
according to law.
6. Civil Appeals arising from S.L.Ps. 13913 and 13940/92
(preferred by students who were admitted by private unaided
engineering colleges in Andhra Pradesh, without an allotment
from the convenor of the common entrance examination) are
allowed. The students so admitted for the academic year
1992-93 be allowed to continue in the said course but the
management shall comply with the directions given in para 77
hereinabove.
MOHAN, J. I have had the advantage of perusing the judgment
of my learned brother Justice B.P. Jeevan Reddy. Though, I
am in agreement with his conclusion, I would like to give my
own reasonings. Since my learned brother has set out the
facts, I will confine myself to answering the three
questions, namely:
1. Whether the Constitution of India
guarantees a fundamental right to education to
its citizens?
2. Whether there is a fundamental right to
establish an educational institution under
Article 19(1)(g)?
3. Does recognition or affiliation make the
educational institution an instrumentality?
All the these matters raise a burning issue;
as to how to put an end to the evil of
capitation fee or at least to regulate it.
As a prelude, the importance of education may
be set out.
695
The immortal Poet Valluvar whose Tirukkural
will surpass all ages and transcend all
religions said of education:
"Learning is excellence of wealth that none
destroy; To man nought else affords reality of
joy."
Therefore, the importance of education does
not require any emphasis.
The fundamental purpose of Education is the same at all
times and in all places. It is to transfigure the human
personality into a pattern of perfection through a synthetic
'process of the development of the body, the enrichment of
the mind, the sublimation of the emotions and the illumina-
tion of the spirit. Education is a preparation for a living
and for life, here and hereafter.
An old Sanskrit adage states: "That is Education which leads
to liberation" liberation from ignorance which shrouds the
mind; liberation from superstition which paralyses effort,
liberation from prejudices which bring the Vision of the
Truth.
In the context of a democratic form of government which
depends once a social and political necessity. Even several
decades ago, our leaders harped upon universal primary
education as a desideratum for national progress. It is
rather sad that in this great land of ours where knowledge
first lit its torch and where the human mind soared to the
highest pinnacle of wisdom, the percentage of illiteracy
should be appalling. Today, the frontiers of knowledge are
enlarging with incredible swiftenss. The foremost need to be
satisfied by our education is, therefore, the eradication of
illiteracy which persists in a depressing measure, Any
effort taken in this direction of be deemed to be too
much.
Victories are gained, peace is preserved, progress is
achieved, civilization is build up and history is made not
on the battle-fields where ghastly murders are committed in
the name of patriotism, not in the Council Chambers where
insipid speeches are spun out in the name of debate, not
even in factories where are manufactured novel instruments
to strangle life, but in educational institutions which are
the seed-beds of culture, where children in whose hands
quiver the destinies of the future,
696
are trained From their ranks will come out when they grow
up, statesmen and soldiers, patriots and philosophers, who
will determine the progress of the land.
The importance of education has come to be recognised in
various judicial decisions.
In Oliver Brown v. Board of Education of Topeka, U.S.
Supreme Court Reports 98 Law. Ed. U.S. 347 at page 880 it
was observed:
"Today, education is perhaps the most
important function of state and local
governments. Compulsory school attendance
laws and the great expenditures for education
both demonstrate our recognition of the
importance of education to our democratic
society. It is required in the performance of
our most basic public responsibilities, even
service in the armed forces. It is very
foundation of good citizenship. Today it is a
principal instrument in awakening the child to
cultural values, in preparing him for later
professional training, and in helping him t
o
adjust normally to his environment."
Various fundamental rights enumerated under Part III of our
Constitution can be divided into two classes.
1. Injuction restraining the State from denying certain
fundamental rights like Articles 14 and 21.
2. A positive conferment of such fundamental rights under
Articles 19, 25 and 26 etc.
In this connection, the following passage from Addl. Dist.
Magistrate v. S.S. Shuukla, [1976] Supp. SCR 172 @ 229-230
may be quoted:
"Part III of our Constitution confers
fundamental rights in positive as well as in
negative language. Article 15(1), 16(1) 9
22(2), 22(5), 25(1), 26, 29(1), 30 and 32(1)
can be described to be Articles in positive
language. Articles 14, 15(2), 16(2), 20, 21,
22(1), 22(4), 27, 28(1), 29(2), 31(1) and (2)
are in negative language. It is apparent that
most categories of fundamental rights are in
positive as well as
697
in negative language. A fundamental right
couched in negative language accentuates by
reason thereof the importance of that right.
The negative language is worded to emphasise
the immunity from State action as a
fundamental right. (See The State of Bihar v.
Maharajadhuraja Sir Kameshwar Singh of
Darbhanga and Ors.) These fundamental rights
conferred by our Constitution have taken
different forms. Some of these fundamental
rights are said to have the texture of Basic
Human Rights (See A.K Gopalan's case (supra)
at pp. 96-97, 248-293 and Bank nationalisation
case (Supra) at pp. 568-71, 576-78)."
Article 21 reads as follows:
"Perfection of life and personal liberty:- No
person shall be deprived of his life or
personal liberty except according to procedure
established by law."
It would be clear that it acts as a shield against
deprivation of fife or personal liberty.
A question may be asked as to why it did not positively
confer a fundamental right to life or personal liberty like
Article 19. The reason is, great concepts like liberty and
life were purposefully left to gather meaning from
experience. They relate to the whole domain of social and
economic fact. The drafters of. this Constitution knew too
well that only a stagnant society remains uncharged.
Unlike such rights as required to be enumerated it has long
been recognised that the individual shall have full
protection in person. It is a principle as old as law.
However, it has been found necessary from time to time to
define a new the exact nature and the extent of such
protection. Political social and economic changes entail
the recognition of new rights and the law in its eternal
youth grows to meet the demands of society. The right to
life and liberty inhere in every man. There is no need to
provide for the same in a positive manner.
While dealing with the scope of Article 21 it was observed
in Maneka Gandhi v. Union of India, AIR 1978 597 @ 620-21
that:
"It is obvious that Art. 21, though couched in
negative
698
language, confers the fundamental right to
life and personal liberty. So far as the
right personal liberty is concerned, it is
ensured by providing that no one shall be
deprived of personal liberty except according
to procedure prescribed by law. The first
question that arises for consideration on the
language of Art. 21 is: what is the meaning
and content of the words 'personal liberty' as
used in this Article? This question
incidentally came up for discussion in some of
the judgments in A.K Gopalan v. State of
Madras, [1950] SCR 88 : (AIR 1950 SC 27) and
the observations made by Patanjali Sastri, J.,
Mukherjee, J. and S.R. Das, J. seemed to place
a narrow interpretation on the words 'personal
liberty' so as to confine the protection of
Art. 21 to freedom of the person against
unlawful detention. But there was no definite
pronouncement made on this point since the
question before the Court was no so much the
interpretation of the words 'personal liberty,
as the inter-relation between Arts. 19 and 21.
It was in Kharak Singh v. State of UP., [1964]
1 SCR 332; (AIR 1963 SC 1295) that the
question as to the proper scope and meaning of
the expression 'personal liberty' came up
pointedly for consideration for the first time
before this Court. The majority of the Judges
took the view 'that 'personal liberty' is used
in the article as a compendious term to
include within itself all the varieties of
rights which go to make up the 'personal
liberties' of man other than those dealt with
in the several clauses of Art. 19(1). In
other words, while Art. 19(1) deals with
particular species of attributes of that
freedom, 'personal libertyin Art. 21 takes in
and comprises the residue". The minority
Judges, however, disagreed with this view
taken by the majority and explained their
position in the following words:
"No doubt the expression 'personal liberty' is
a comprehensive one and the right to move
freely is an attribute of personal liberty.
It is said that the freedom to move freely is
carved out of personal liberty and therefore
the expression 'personal liberty' in Art. 21
excludes that attribute. In our view, this is
not a correct approach. Both
699
are independent fundamental rights, though
there is overlapping. There is no question of
one being carved out of another. The
fundamental right of fife and personal liberty
has many attributes and some of them are found
in Art. 19. If a person's fundamental right
under Art. 21 is infringed, the State can rely
upon a law to sustain the action, but that
cannot be a complete answer unless the said
law satisfies the test laid down in Art. 19(2)
so far as the attributes covered by Art. 19(2)
so far as the attributes covered by Art. 19(1)
are concerned."
There can be no doubt that in view of the
decision of this Court in R. C. Cooper v.
Union of India, [1970] 3 SCR 530: (AIR 1970 SC
564) the minority view must be regarded as
correct and the majority view must be held to
have been overruled."(Emphasis supplied)
Therefore, it is not correct to state that because the
article is couched in a negative language, positive rights
to life and liberty are not conferred as argued by Mr.
Tarkunde, learned counsel.
This Court in Choarak Singh v. State of U.P., 119641 1 SCR
332, (345, 347 and 349) interpreted the word "liberty" on
the lines of the meaning accorded to liberty in the 5th and
14th amendments to the U.S. Constitution by in Munshi v.
Illuonis, [1877] 94 U.S. 113. Accordingly it was held:
" 'Personal Liberty' in Art. 21 takes in all the rights of
man."
The 4th Amendment of U.S. Constitution guaranteed "the right
to be secure on their persons, houses......."
This right was read into Article 21 and it was held that
"there cannot be an unauthorised intrusion into a person's
home".
In Kesavananda Bharati v. Kerala, [1973] Supp. SCR page 1
Mathew, J. stated therein that the fundamental rights
themselves have no fixed content, most of them are empty
vessels into which each generation must pour its content in
the light of its experience. It is relevant in this context
to remember that in building up a just social order it is
sometimes imperative that the fundamental rights should be
subordinated to directive principles.
700
In Puthumma's case, [1978] 2 SCR 537, it has been stated:
"The attempt of the court should be to expand the reach and
ambit of the fundamental rights rather than accentuate their
meaning and content by process of judicial construction...
Personal liberty in Article 21 is of the widest amplitude';,
In this connection, it is worthwhile to recall what was said
of the American Constitution in Mussorie v. Holland 252 U.S.
416 at 433:
"When we are dealing with words that also are
constituent act, like the constitution of the
United States, we must realize that they have
called into fife a being the development of
which could not have been foreseen completely
by the most gifted of its begetters."
In State of M.P. v. Pramod Bhyaratiya and
others, (1992) 2 Scale 791 it is stated:
Because clause (d) of Article 39 spoke of
"equal pay for equal work" for both men and
women it did not cease to be part of article
14. To say that the rule having been stated
as a directive principle of State Policy, and
no enforceable in court of law is to indulge
in sophistry. Parts IV & III of Constitution
are not supposed to be exclusion any of
each other. They are complementary to each
other.The rule is as much a part of Article
14 as it is of clause
(1) of Article 16."
This Court has held that several unenumerated rights fall
within Article 21 since personal liberty is of widest
amplitude.
The following rights are held to be covered
under Article 21:
1. The right to go abroad
Satwant Singh v. A.P. O. New Delhi [1967] 3
SCR page 525.
2. The right to privacy
Govinda v. State of U.P., [1975] 3 SCR 946
701
In this case reliance was placed on the
American decision in Griswols v. Connecticut,
381 US 479 at 510
3. The Right against solitary confinement
Sunil Batra v. Delhi Administration, [1978] 4
SCC 494 at 545
4. The Right against Bar fetters
Charles Sobraj v. Sup(. Central fail, [1979]
1 SCR Ill
5. The Right to legal aid
Hoskot v. State of Maharashtra, [1979] 1 SCR
192
6. The Right to speedy trial
Hussainuia Katoon v. State of Bihar, [1979] 3
SCR 169
7. The Right against Handcuffing
Prem Shankar v. Delhi Administration [1080] 3
SCR 855
8. The Right against delayed execution
TV. Vatheeswaran v. State of Tamil Nadu, AIR
1983 SC 361
9. The Right against custodial violence
Sheela Bhasre v. State of Maharashtra, [1983]
2 SCC 96
10. The Right against public hanging
A.G. of India v. Lachmadevi AIR 1986 SC 467
11. Doctor's Assistance
Parantananda Katra v. UOI, [1989] 4 SCC 286
12. Shelter
Santistar Builder v. N.KI. Totame, [1990] 1
SCC 520
If really Article 21, which is the heart of fudamental
rights has received expanded meaning from time to time there
is no justification as to why it cannot be interpreted in
the light of Article 45 wherein the State is obligated to
provide education up to 14 years of age, within the
prescribed time limit.
So much for personal liberty.
Now coming to life: this Court interpreted in
Bandhua Mukti Morcha
702
v. Union of India, [1984] 3 SCC 161 @ 183-
84:
"It is the fundamental right of everyone in
this country, assured under the interpretaiton
given to Article 21 by this Court in Francis
Mullin's case, to live with human dignity,
free from exploitation. This right to live
with human dignity, free from exploitation.
This right to live with human dignity
enshrined in Article 21 derives its life
breath from the directive Principles of State
Policy and particularly clauses (e) and (f) of
Article 39 and Article 41 and 42 and at the
least, therefore, it must include protection
of the health and strength of workers, men and
women, and of the tender age of children
against abuse, opportunities and facilities
for children to develop in a healthy manner
and in conditions of freedom and dignity,
educational facilities, just and humane
conditions of work and maternity relief.
These are the minimum requirements which must
exist in order to enable a person to five with
human dignity and no State neither the
Central Government nor any State Government
has the right to take any action which will
deprive a person of the enjoyment of these
basic essentials. Since the Directive
Principles of State Policy contained in
clauses (e) and (f) of Article 39, Articles 41
and 42 are not enforceable in a court of law,
it may not be possible to compel the State
through the judicial process to make provision
by statutory enactment or executive fiat for
ensuring these basic essentials which go to
make up a life of human dignity but where
legislation is already enacted by the State
providing these basic requirements to the
workmen and thus investing their right to live
with basic human dignity, with concrete
reality and content, the State can certainly
be obligated to ensure observance of such
legislation for inaction on the part of the
State in securing implementation of such
legislation would amount to denial of the
right to live with human dignity enshrined in
Article 21, more so in the context of Article
256 which provides that the executive power of
every State shall be so exercised as to ensure
compliance with the laws made by Parliament
and any existing laws which apply in
703
that State."
This, was elaborated in Olga Tellis v. Bombay
Municipal Corporation, 119851 3 SCC 545 @ 571-
573:
"As we hive stated while summing up the
petitioners case, the main plank of their
argument is that the right to fife which is
guaranteed by Article 21 includes the right to
livelihood and since, they will be deprived of
their livelihood if they are evicted from
their slum and pavement dwellings their
eviction is tantamount to deprivation of their
life and is hence unconstitutional. For
purposes of argument, we will assume the
factual correctness of the premise that if the
petitioners are evicted from their dwellings,
they will be deprived of their livelihood
.
Upon that assumption, the question which we
have to consider is whether the right to fife
includes the right to livelihood. We see only
one answer to that question, namely, that it
does. The sweep of the right to life
conferred by Article 21 is wide and far
reaching. It does not mean merely that life
cannot be extinguished or taken away as, for
example, by the imposition and execution of
the death sentence, except according to
procedure established by law. That is but one
aspect of the right to life. An equally
important facet of that right is the right to
livelihood because, no person can live without
the means of livingn that is, the means of
livelihood. If the right to livelihood is not
treated as a part of the constitutional right
life, the easiest way of depriving a person of
his right to life would be to deprive him of
his means of livelihood to the point of
abrogation. Such deprivation would not only
denude the life of its effective content and
meaningfulness but it would make life impos-
sible to live. And yet such deprivation would
not have to be in accordance with the
procedure established by law, if the right to
livelihood is not regarded as a part of the
right to live. That, which alone makes it
possible to live, leave aside what makes life
livable, must be deemed to be an integral
component of the right to life. Deprive a
person of his right to livelihood and you
shall have deprived him
704
of his life. Indeed, that explains the
massive migration of the rural population to
big cities. They migrate because they have no
means of livelihood in the villages. The
motive force which peoples their desertion of
their hearts and homes in the village is the
struggle for survival that is, the struggle
for fife. So unimpeachable is the evidence of
the nexus between fife and the means of
livelihood. They have to eat to live: Only a
handful can efford the luxury of living to
eat. That they can do, namely, eat, only if
they have the means of livelihood. That is
the context in which it was said by Douglas,
J. in Baksey that the right to work is the
most precious liberty that man possesses. It
is the most precious liberty because, it
sustains and enables a man to live and the
right to life is a precious freedom. 'Life',
as observed by Field, J. in Munn v. Illinois,
means something more than mere animal
existence and the inhibition against the
deprivation of fife extends to all those
limits and faculties by which life is enjoyed.
This observation was quoted with approval by
this Court in Singh v. State of UP.
Article 39(a) of the Constitution, which is a
Directive Principle of State Policy, provides
that the State shall in particular, direct its
policy towards securing that the citizens, men
and women equally, have the right to an
adequate means of livelihood. Article 41,
which is another Directive Principle,
provides, inter alia, that the State shalt
within the limits of its economic capacity and
development make effective provision for
securing the right to work in cases of
unemployment and of undeserved want. Article
37 provides that the Directive Principles,
though not enforceable by any court, are
nevertheless fundamental in the governance of
the, country. The principles contained in
Articles 39(a) and 41 must be regarded as
equally fundamental in the understanding and
interpretation of the meaning and content of
fundamental rights. If there is an obligation
upon the State to secure to the citizens an
adequate means of livelihood and the right to
work it would be sheer pedantry to exclude the
right to livelihood from the content of the
right to life. The State may
705
not by affirmative action, be compellable to
provide adequate means of livelihood or work
to the citizens. But, any person, who is
deprived of his right to livelihood except
according to just and fair procedure
established by law, can challenge the
deprivation as offending the right to life
conferred by Article 21."(Emphasis supplied)
If thus, personal liberty and life have come to be given
expanded meaning, the question to be addressed is, whether
life which means to live with dignity, will take within it
education as well? To put it more emphatically, whether
right to education flows from right to life? Before we go
to Mohini Jain's case [1992] 3 SCC 666 it may be necessary
to refer to State of Andhra Pradesh v. Lavu Narendranath,
[1971] 1 SCC 607. At page 614 it is stated:
"Lastly it was urged that such test affected
the personal liberty of the candidates secured
under Article 21 of the Constitution. We fail
to see how refusal of an application to enter
a medical college can be said to affect one's
personal liberty guaranteed under that
article. Everybody, subject to the
eligibility prescribed by the University, was
at liberty to apply for admission to the
medical college. The number of seats being
limited compared to the number of applicants
every candidate could not expect to be
admitted. Once it is held that the test is
not invalid the deprivation of personal
liberty, if any, in the matter of admission to
a medical college was according to procedure
established by law. Our attention was drawn t
o
the case of Spottwood v. Sharpe, in which it
was held that due process clause of the Fifty
Amendment of the American Constitution
prohibited racial segregation in the District
of Columbia. Incidentally the Court made a
remark (at p. 887):
"Although the Court has not assumed to define
"liberty". with any great precision, that term
in not confined to mere freedom from bodily
restraint. Liberty under law extends to the
full range of conduct which the individual is
free to pursue, and it cannot be restricted
except for a proper
706
governmental objective. Segregation in public
education is not reasonably related to any
proper governmental objective, and thus it
imposes on Negro children of the District of
Columbia a burden that constitutes an
arbitrary deprivation of their liberty in
violation of the Due Process Clause.
The problem before is altogether different.
In this case everybody subject to the minimum
qualification prescribed was at liberty to
apply for admission. The Government objective
in selecting a number of them was certainly
not, improper in the circumstances of the
case,."
It requires to be carefully noted that deprivate of personal
liberty if done by a valid procedure established by law, the
fundamental right under Article 21 was not, in any manner,
affected. That is the crux of this ruling.
Now, coming to Mohini Jain's case (supra) it
was observed at pages 679-80:
"Right to life" is the compendious expression
for all those rights which the courts must
enforce because they are basic to the
dignified enjoyment of life. It extends to
the full range of conduct which the individual
is free to pursue. The right to education
flows directly from right to life. The right
to life under Article 21 and the dignity of an
individual cannot be assured unless it is
accompanied by the right to education. The
State Government is under an obligation to
make endeavor to provide educational
facilities at all levels to its citizens."
Education is enlightenment. It is the one that lends
dignity to a man as was rightly observed by Gajendragarkear,
J. (as he then was) in University of Delhi v. Ram Nath,
[1964] 2 SCR 703 at 710:
"Education seeks to build up the personality
of the pupil by assisting his physical,
intellectual, moral and emotional
development."
If life is so interpreted as to bring within it right to
education, it has
707
to be interpreated in the light of directive principles.
This Court has uniformly taken the view that harmonious
interpretation of the fundamental rights vis-a-vis the
directive principles must be adopted. We will now refer to
some of the important cases.
In State of Kerala & Anr. v. N.M. 7homas &
Anr., [1976] 1 SCR 906, at 914 it was held:
"There is complete unanimity of judicial
opinion of this Court that the Directive
Principles and the Fundamental Rights should
be construed in harmony with each other and
every attempt should be made by the Court to
resolve apparent inconsistency.
The Directive Principles contained in Part IV
constitute the stairs to climb the High
edifice of a socialistic State and the
Fundamental Rights are the means through which
one can reach the top of the edifice.
The Directive Principles form the fundamental
feature and the social conscience of the
Constitution which enjoins upon the State to
implement these Directive Principles. The
Directives, thus provide the policy, the
guidelines and the end of socioeconomic
freedom and Arts. 14 and 16 are the means to
implement the policy to achieve the ends
sought to be promoted by the Directive
Principles. So far as the Courts are
concerned where there is no apparent
inconsistency between the Directive Principles
contained in Part IV and the Fundamental
Rights mentioned in Part III, there is no
difficulty in putting a harmonious
construction which advances the object of the
Constitution.'
In Pathumma and others v. State of Kerala and
others, [1978] 2 SCR 537 at 545-46 it was
observed:
"In fact in the case of His Holiness
Kesavananda Bharati Sripadagalavaru v. State
of Kerala all the Judges constituting the
Bench have with one voice given the Directive
Priciples contained in the Constitution a
place
708
of honour. Hegde and Mukhejea, JJ. as they
they were have said that the fundamental
rights and the Directive Principles constitute
the "conscience' of our Constitution. The
purpose, of the Directive Principles is to fix
certain social and economic goals for
immediate attainment by bringing about a non-
violent social revolution. Chandrachud, J.
observed that our Constitution aims at
bringing about a synthesis between
'Fundamental Rights' and the 'Directive
Principles of State Policy' by giving to the
former a place of pride and to the latter a
place of permanence.
In a latter case State of Kerala & Anr. v.
N.M. Thomas & Ors., [1976] 2 SCC 310 one of us
(Fazal Ali, J.) after analysing the Judgment
delibered by all the Judges in the Kesvananda
Bharati's case (supra) on the importance of
the Directive Principles observed as follows:
"In view of the principles adumbrated by this
Court it is clear that the Directive
Principles form the fundamental feature and
the social conscience of the Constitution and
the Constitution enjoins upon the State to
implement these directive principles. The
directives thus provide the policy, the
guidelines and the end of socioeconomic
freedom of Articles 14 and 16 are the means to
implement the policy to achieve the ends
sought to be promoted by the directive
principles. So far as the courts are con-
cerned where there is no apparent
inconsistency between the directive principles
contained in Part 111, which in fact
supplement each other, there is no difficulty
in putting a harmonious construction, which
advances the object of the Constitution. Once
this basic fact is kept in mind, the
interpretation of Articles 14 and 16 and their
scope and ambit become as clear as day'.
In the case of The State of Bombay v. R.M.D.
Chamarbaugwala this Court while stressing the
importance of directive principles contained
in the Constituion observed as follows:
709
The avowed purpose of our constitution is to
create a welfare State. The directive
principles of State Policy set forth in Part
IV of our Constitution enjoin upon the State
the duty to strive to promote the welfare of
the people by and protecting, as effectively
as it may, a social order in which justice,
social economic and political shall inform all
the institutions of the national life.'
In the case of Fatehchand Himmatlal & Ors. v.
State of Maharashtra etc. (supra) the
Constitution Bench of this Court observed as
follows:
"Incorporation of Directive Principles of
State Policy casting the high duty upon the
State to strive to promote, the welfare of the
people by securing and protecting as
effectively as it may, a social order in which
justice social economic and political
shall inform all the institutions of the
national life, is not idle point but command
to action. We can never forget, except at our
peril that the Constitution obligates the
State to ensure an adequate means of
livelihood to its citizens and to see that the
health and strength of workers, men and women,
are not abused, that exploitation, moral and
material, shall be extradited. In short,
State action defending the weaker sections
from social injustice and all forms of
exploitation and raising the standard of
living of the people, necessarily imply that
economic activities, attired as trade or
business or commerce, can be de-recognised as
trade or business."
In Delhi Development Horticulture Employees'
Union v. Delhi Administration, Delhi and
others, [1992] 4 SCC 99 at 110 it was
observed:
"There is no doubt that broadly interpreted
and as a necessary logical corollary, right to
life would include the right to livelihood
and, therefore, right to work. It is for this
reason that this Court in Olga Tellis v.
Bombay Municipal Corporation while considering
the consequences of eviction of the pavement
dwellers had pointed out that in that case the
eviction not merely resulted in deprivation of
shelter but also deprivation of livelihood
710
inasmuch as the pavement dwellers were
employed in the vicinity of their dwellings.
The Court had, therefore, emphasised that the
problem of eviction of the pavement dwellers
bad to be viewed also in that context. This
was, however, in the context of Article 21
which seeks to protect persons at
the deprivation of their life except according
to procedure established by law. This Country
has so far not found it feasible to
incorporate the right to livelihood as a
fundamental right in the Constitution. This
is because the country has so far not attained
the capacity to guarantee it, and no because
it considers it any the less fundamental to
life. Advisedly, Article 41 of which enjoins
upon the State to make effective provision for
securing the same "within the limits of its
economic capacity and development". Thus even
while giving the direction to the State to
ensure the right to work, the Constitution
makers though it prudent not to do so without
qualifying it."
Such a conclusion may not be open to
criticism. So interpreted it advances social
justice.
In Vol. VII at pages 909 and 910 of the
Constitutent Debates (1948-49) it is stated:
"The Honourable Shri K. Santhanam : Sir, you
will remeber that throughout Europe, after the
First World' War, all that the minorities
wanted was the right to have their own
schools, and to conserve their own cultures
which the Fascist and the Nazis refused them.
In fact, they did not want even the State
schools. They did not want State aid, or
State assistance. They simply wanted that
they should be allowed to pursue their own
customs and to follow their own cultures and
to establish and conduct their own schools.
Therefore I do not think it is right on the
part of any minority to depreciate the rights
given in article 23(1).
Sir, in clause (2) of article 23 they are
protected against discrimination. It is just
possible that there may be many provinces
based on language and therefore the Govern-
711
ment, the ministry and the legislature will be
composed dominantly by members of the majority
language. This right of non-discrimination
will then become fundamental and valuable.
And then in clause (3) of this article, it is
provided that when the State gives aid to
education, it shall not discriminate against
any educational institution, on the ground
that it is under the management of a minority.
Whether based on community or on language, and
this will be particularly applicable to the
linguistic minorities. In every province,
there are islands of these linguistic
minorities. For instance, in my own province
of Tamil Nadu there are islands, in almost
every district, of villages where a large
number of Telugu-speaking people reside. In
this connection we have to hold the balance
even between two different trends. First of
all, we have to give to large linguistic
minorities their right to be educated
especially in the primary stages in their
own language. At the same time we should not
interfere with the historical process of
assimilation. We ought not to think that for
hundred and thousands of years to come these
linguistic minorities will perpetuate
themselves as they are. The historical
processes should be allowed free play. These
minorities should be helped to become
assimilated with the people of the locality.
They should gradually absorb the language of
the locality and become merged with the people
there. Otherwise they will be aliens, as it
were, in those provinces. Therefore, we
should not have rigid provisions by which
every child is automatically protected in what
may be ,called his mother-tongue. On the
other hand, this process should not be sudden,
it should not be forced. Wherever there are
large numbers of children, they should be
given education primary education in their
mother-tongue. At the same time, they should
be encouraged and assisted to go to the
ordinary schools of the provinces and to
imbibe the local tongue and get assimilated
with the people. If feel this clause does
provide for these contingencies in the most
practicable fashion.
712
Sir, Mr. Lari wanted an amendment which seeks
to provide that every child, rather that every
section of the citizens, shall be entitled to
have primary education imparted to its
children through the medium of the language of
that section. I suppose what he means is that
wherever primary education is imparted at the
expense of the State, such provisions should
be made. But this, I think, would give the
minority or section of people speaking a
language the complete and absolute right to
have primary education which the people of
this country do not have today. In the
directives we have provided that in fifteen
years' time there should be universal primary
education. But no one knows whether the
financial and other conditions in the country
would permit of universal primary education to
be established even then. Today no one in
India can ask for primary education as a right
as only ten per cent of the population get
primary education. Therefore, it is not
possible to accept Mr. Lari's amendment,
because that would lead to all kinds of
difficulties. If it were passed, then anyone
can go to the Supreme Court and say that his
child must get education in a particular
language. That is not practicable, and I do
not think even his intention is at all that.
At the same time, I think, what he has pleaded
for must be kept in mind as a general policy.
It should be direction of the Central and the
Provincial Governments to see that wherever
there are congregations of boys and girls
having a distinct mother tongue, schools
should be provided in that language. I hope,
that will be the policy adopted all over the
country, especially as, if there is going to
be new linguistic revisions of the boundaries
,
all the border areas will be full of this
problem. I hope the respondent of the
Linguistic Provinces Commission will contain
some wise provisions to be adopted in this
behalf. There should be no difficulty or
hardship whatsoever in provinces when they are
rearranged on a linguistic basis. For
instance, if a Telugu goes to one area or the
other, he should not have any hardship. As I
said, this is a most difficult and com-
713
plicated problem and it cannot be dealt with
in detail in the fundamental rights. This
article 23 provides as much security as can be
done in the Constitution. Other securities
will have to be provided for both by
Parliamentary and provincial,legislation, and
I hope it will be done in due course.'
It is true the framers of the Constitution took that view.
But the position as on today is very different. The reason
is Article 45 States as under:
"Provision for free and compulsory education
for children. The State shall endeavor to
provide, within a period of ten years from the
commencement of this Constitution, for free
and compulsory education for all children
until they complete the age of fourteen
years."
14 years, spoken to under the Article, had long ago come to
an end. We are in the 43rd year of Independence. Yet, if
Article 45 were to r a pious wish and a fond hope, what good
of it having regard to the importance of primary education?
A time limit was prescribed under this Article. Such a time
limit is found only here, If, therefore, endeavor has not
been made till now to make this Article reverberate with
life and articulate with meaning, we should think the Court
should step in. The State can be objected to ensure a right
to free education of every child up to the-age of 14 years.
On this aspect a useful reference could be made to what have
been observed in Human Right and Education Vol. 3 edited by
Norma Bernstein Tarrow at page 41:
"The State is directed to strive for the right
to education, make provision for free and
compulsory, education (Article 45) and promote
the. educational interests of Scheduled Castes
and Tribes, and other weaker sections
(including women).
Education is primarily the responsibility of
the State Governments, but the Union
Government has certain responsibilities
specified in the Constitution on matters such
as promote higher education and promotion of
education for weaker sections. Most states
have enacted
714
legislation for compulsory education. At the
end of the Sixth Five Year Plan (1985) primary
education for ages 6-11 is free in all states,
and for age group 11-14 it is free in all
except Orissa, Uttar Pradesh and West Bengal.
In these States, girls and members of
Scheduled Castes and Tribes get free
education, and incentives such as mid-day
meals, free books and uniforms, are provided.
At the secondary stage several states have
free education for all children and those
which do not make free education available to
all do so for girls, Scheduled Castes and
Tribes. Thus free education in all states is
provided at the primary and secondary stages
for girls, Scheduled Castes and Tribes."
Again at page 43 it is stated:
'Useful measures of achievement in terms of
the right to education are literacy and
enrollment levels. The contemporary picture,
however, is not as good as one would expect
after 39 years of independence. The literacy
rate has risen from 16.6. per cent in 1951 to
36.6 per cent according to the 1981 census.
But regional variations indicate a range of
above 60 per cent literacy in Kerala to below
20 per cent in some states. Nearly 120
million in the functional age group of 15-35
are still illiterate (Bhandari 1981).
Over the last three decades of planned
development, rapid growth in facilities has
attempted to provide access for minorities and
girls. The number of educational institutions
has more than doubled, while the number. of
teachers and students has multiplied many
tunes. But despite the fact that 93 per cent
of the rural population have access to schnook
nearly 30 per cent of 6-14 year old (60
million) do not go to school and T7 per cent
drop out. A large percentage of the dropouts
are grids and Scheduled Caste and Tribe
members. The main problems are socioeconomic
constraints which result in educational
constraints. Poverty is a majory cause for
keeping chidren
715
away from school."
Article 26(1) of the Universal Declaration of
Human Rights states:
"Everyone has the right to education.
Technical and professional and professional
education shall be made generally available
and higher education shall be equally
accessible to all on the basis of merit."
(Emphasis supplied)
In the World of Science and the Rule of Law by
John Ziman 1986 Edition at page 49 if is
stated:
"The principal global treaty which covers this
right is the ICESCR, whose Article 13
recognizes the general right to education
enunciated by the UDHR, but then goes on to
add the following more specific provisions:
(2) The States Parties to the present
Covenant recognize that, with a view to
achieving the full realization of this right:
(a) Primary education shall be compulsory
and available fee to all;
(b) Secondary education in its different
forms, including technical and vocational
secondary education, shall be made generally
available and accessible to all by every
appropriate means, and in particular by the
progressive introduction of free education:
(c) Higher education shall be made equally
accessible to all on the progressive
introduction of free education;
(d) Fundamental education shall be
encouraged or intensified as far as possible
for those persons who have not received or
completed the whose period of their primary
education;
(e) The development of a system of schools
at all levels shall be actively pursued, an
adequate fellowship system shall be
established, and the material conditions of
teach-
716
ing staff shall be continuously improved.
The status of this Article is a useful
reminder of the problems inherent in any
attempt to create a 'social' right of this
kind for individuals against their states."
No doubt, the above extract from Mohini Jain's case (supra)
states "education at all levels", but we 'consider the law
has been somewhat broadly stated and, therefore, must be
confined to what is envisaged under Article 45.
The criticism by Mr. Ashok Desai, learned counsel that
Article 37 has not been adverted to and the reliance on
directive principles is untenable, in view of what we have
stated above.
Higher education calls heavily on national economic
resources. The right to it must necessarily be limited in
any given country by its economic and social circumstances.
The State's obligation to provide it is, therefore, not
absolute and immediate but relative and progressive. It has
to take steps to the maximum of its available resources with
a view to achieving progressively the full realization of
the right of education by all appropriate means' But, with
regard to the general obligation to provide education, the
State is bound to provide the same, if it deliberately
starved its educational system by resources that it
meanifestly had available unless it could show that it was
allocating them to some even more pressing programme. fore,
by holding education as a fundamental right up to the age of
14 years this Court is not determining the priorities. On
the contrary, reminding it of the solemn endeavour, it has
to take, under Article 45, within a prescribed time, which
time limit was expired long ago.
Mr. K.K. Venugopal, learned counsel contends that in the
U.S. Supreme Court in the case of San Antonio Independent
School District v. Rodrgues, 1973 411 U.S. it was observed:
"It is not province of this Court to create
substantive constitutional rights in the name
of guaranteeing equal protection of the laws.
Thus the key to discovering whether education
is 'Fundamental" is not to be found
(imcomparisons) of the relative societal
significances of
717
education as opposed to subsistence or
housing... Rather, the answer lies in
assessing whether there is a right to
education explicitly or implicity guaranteed
by the Constitution.
But if in reality, the, fundamental rights and the directive
principles are complementary to each other we are unable to
see why this fundamental right cannot be interpreted in this
manner. The American Constitution does not have a directive
principle like, Article 45. Therefore, the contraly view
was struck in San Antonio Independent School District
(supra).
While dealing with the American Law on this aspect in Vol.
57 1969 Califomia Law Review at page 380 it was stated:,
"It is true that the quotation from the Brown
opinion seems stunningly relevant. Taken
literally it would be decisive in some sense
upon the question of this Article. Education
;must be made available to @ on equal terms."
From the vantage point of 1968, however, it is
no longer clear that Brown was specially
concerned about the interest in education.
The decision had scarcely appeared before the
"ftmdamental" character of education become
the fundamental character of golf and swimming
rights, and all the cases since Brown, even
the cases involving education, have shown
complete preoccupation with the racial factor.
Meanwhile the Court has done nothing further
to suggest that education enjoy as a
constitutional life of its own.'
As to the present position of primary education in India,
the additional affidavit on behalf of Union of India filed
by Mr. H.C. Baveja, Assistant Education Advisor in the
Ministry of Human Resources Development, Government of
India, Department of Education, New Delhi, puts the position
thus:
STATUS OF ELEMENTRY EDUCATION IN INDIA
1. Provision of free and compulsory
education to all children until they complete
the age of 14 years is a Directive Principle
of the Constitution. Recognising the
718
need for literate population and provision of
elementary education as a crucial input for
nation building, the policy of the Government
has been to provide all children the free and
compulsory education at least up to elementary
level (primary and upper primary level). The
6th Five Year Plan document made a serious
reference to the desirability of a time bound
plan to achieve universal enrolment. The 7th
Plan conveyed a sense of urgency about the
need to achieve this objective. This was
reinforced mid-way by the National Policy on
Education, 1986.
Progress over the years.
2. Concerted efforts to reach the target
has led to manifold increase in institutions,
teachers and students as shown in the table
below.-
Number of Institution (in lakhs)
---------------------------------------------------
1950-51 1990-91
----------------------------------------------------
Primary Schools 2.10 5.58
(Class I-V)
---------------------------------------------------
Upper Primary Schools 0.13 1.46
(Class VI-VIII)
----------------------------------------------------
Total 2.23 7.04
----------------------------------------------------
Number of Teachers (In lakhs)
----------------------------------------------------
Primary Schools 5.38 16.36
----------------------------------------------------
Upper Primary Schools O.36 10.59
-----------------------------------------------------
Total 6.24 26.95
-----------------------------------------------------
Gross Enrolment
------------------------------------------------------
Primary Enrolment (in 192 991
------------------------------------------------------
Gross Enrolment Ratio 43.1% 101.03%
--------------------------------------------------------
Upper Primary State
--------------------------------------------------------
Total Enrolment (in lakhs) 31 333
---------------------------------------------------------
Gross Enrolment Ratio 12.9% 60.11%
---------------------------------------------------------
719
3. This increase provided Indian Education
System with one of the largest systems in the
world, providing accessibility within 1 km.
walking distance of Primary schools to
8.26lakhs habitations containing about 94% of
the country's population. Growth in enrolment
in the decade of 80s showed an acceleration
that has now brought enrolment rates close of
100% at primary stage.
FREE EDUCATION.
4. In the endeavour to increase enrolment and
achieve the target of UEE, all State
Governments have abolised tuition fees in
Government Schools run by local bodies and
private aided institutions is mostly free in
these States. However, in private unaided
schools which constitute 3.7. of the total
elementary schools in the country, some fee is
charged. Thus, overall it may be said that
education up to elementary level in
practically all schools is free. Other costs
of education such as text books, uniforms,
school bags, transport etc. are not borne by
States except in a very few cases by way of
incentives to children of indigent families or
these belonging to Scheduled Caste/Scheduled
Tribes categories. The reason why the State
Government are unable to bear this additional
expenditure is that 96% of expenditure on
elementary education goes in meeting the
salaries of teaching and non-teaching staff.
COMPULSORY EDUCATION
5.14 States and 4 Union Territories have
enacted legislation to make education
compulsory but the socioeconomic compulsions
that keep the children away from schools have
restrained them from prescribing the rules and
regulations whereby those provisions can be
endorsed.
Thus, it has to be concluded that the right to free
education up to the age of 14 years is a fundamental right.
720
The next question is whether there is a fundamental right to
establish an educational institution. That takes us to
Article 19(1)(g). That reads as follows:
to practise any profession, or to cam on any
occupation, trade or business.'
The question now is: what is the meaning to be attributed to
the words 'profession, "occupation", "trade" or "business".
In P. Ramanatha Aiyar's Law Lexicon Reprint Edition 1987 at
page 897 'Occupation means:
"The principal business of one's life,
vocation,trade, the business which a man
follows to procure a living or obtain wealth:
that which occupies or engages one's time or
attention, vocation, employment, calling
trade; the business in which a man is usually
engaged, to the knowledge of his neighbour."
According to Black's Law Dictionary Fifth Edition at page
973 'Occupation' means:
"Possession; control; tenure; use. The act or
process by which real property is possessed
and enjoyed. Where a person exercises
physical control over land'.
That which principally takes up one's time,
thought, and energies, especially, one's
regular business or employment; also, whatever
one follows as the means of making a
livelihood. Particular business, profession,
trade, or calling which engages individual's
time and efforts; employment in which one
regularly engages or vocation of his life."
In P. V. G. Raju v. Commissioner of Expenditure, ITR Vol. 86
page 267 it is observed thus:
"The activity termed as 'Occupation'. if of
wider import than vocation or profession. It
is also distinct from a hobby which can be
resorted to only in leisure hours for
721
the purpose of killing time. Occupation,
therefore, is that with which a person
occupies himself 'either temporarily or
permanently or for a considerable period with
continuity of activity. It is analogous to a
business, calling or pursuit. A person may
have more than one occupation in a previous
year. The Occupations may be seasonal or for
the whole year."
"Firstly, there can be a business, profession,
vocation or occupation without any profit
motive or on 'no profit no loss basic. To,
illustrate, co-operative societies or mutual
insurance companies may carry on business
without earning any income or without any
profit motive. The vocation or occupation to
do social service of various kinds for the
uplift of the people would also come under
this category. The profit motive or earning
of income is not an essential ingredient to
constitute the activity, termed as business,
profession, vocation or occupation."
"If any authority is needed, we find it in
Commissioner of Expenditure Tax v. Mrs.
Manorama Sarabhai, (1966) 59 ITR 262 (Guj.)
wherein it was held that the educational
activities of the assessees amounted to an
occupation within the meaning of Section 5(a)
and that no profit motive is necessary to
treat an activity as a vocation or occupation
within the meaning of Section 5(a). For all
these reasons, we must negative this
submission of Mr. Ramarao relating to the
interpretation of the words "business,
profession, vocation or occupation' in section
5(a) of the Act."
In P.K Menon v. Income-tax Commissioner,
[1959] Supp. 1 SCR 133 at p. 137 this Court
observed as follows:
"We find no difficulty in thinking that
teaching is a vocation if not a profession.
It is plainly so and it is not necessary to
discuss the various meanings of the word
"vocation' for the purpose or to cite
authorities to support this view. Nor do we
find any reason why, if teaching is a
vocation, teaching of Vedanta is not. It is
just as much
722
teaching and therefore, a vocation, as any
other teaching. It is said that in teaching
Vedanta the appellant was only practising
religion. We are unable to see why teaching
of Vedanta as a matter of religion is not
carrying on of a vocation.'
"It is-said that as the word 'Vocation' has
been used along with the words 'business" and
"profession" and the object of business and a
profession, is to make a profit, only such
activities can be included in the word
'Vocation" the object of which likewise is to
make a profit. We think that these
contentions lack substance. We do not
appreciate the significance of saying that in
order to become a vocation an activity must be
organised. If by that a continuous, or as was
said, a systematic activity, is meant,we have
to point out that it is well known that a
single act may amount to the carrying on of a
business or profession".
The meaning of "business" can be gathered from Law Lexicon
Edition 1987 by Ramnath Iyer:
"Business is that which engages the time, talent and
interest of a man" and is what a man proposes to himself.
There may be a "Business" without precuniary profit being at
all contemplated.
"Business" and "Trade" : "Business" has a more
extensive meaning that "Trade" (per Willes, J.
Hariis v. Amery 35 L.J. C.P.92) But
"Ordinarily speaking, Business is synonymous
with 'Trade", (per Chatterton V. C. Delany v.
Deleny, 15 L.R. Ir. 67). There may, however,
be a "Business" without pecuniary profit being
at all contemplated. In such connection,
"Business' is a very much larger word than
'Trade' and the word "Business" is employed in
order to include occupations which would not
strictly come within the meaning of the word
"Trade (per Person, J. Rolls v. Miller, 53 LJ.
Ch. 101) per Scruitton. L.J. The words
'Trade" and 'Business" do not mean the same
thing ..... ;on business, though usually
business is carried on for profit. It is to
be presumed that the Railways are run on a
profit, though it may be that occasionally
they are run
723
at a loss."
"Monetary consideration for service is,
therefore, not an essential characteristic of
industry in a modern State".
In Hindustan Steel Limited v. State of Orissa,
[1970] 1 SCR 753 it is observed:
"A person to be a dealer within the meaning of
the Act must carry on the business of selling
or supplying goods in Orissa. The expression,
'business' is not defined in the Act. But as
observed by this Court in State of Andhra
Pradesh v. Abdul Bakshi, [1964] 7 SCR 664:
"The expression 'business' though extensively
used as a word of indefinite import, in taxing
statutes it is used in the sense of an
occupation, or profession which occupies the
time, attention and tabour of a person
,
normally with the object of making profit. To
regard an activity as business there must be a
course of dealings either actually continued
or contemplated to be continued with a profit
motive, and no for sport of pleasure."
In Barendra Prasad Ray v. The Income-tax Officer, AIR'1981
SC 1047: [1981] 3 SCR 387 at 400 B and H and 401 A and B it
is observed:
"The expression 'business does not necessarily
mean trade or manufacture only. It is being:
used as including within its scope profession,
vocations and calling from a fairly long time.
The Shorter Oxford English Dictionary defines
'Business" as stated occupation, profession or trade' and a
man of business is defined as
meaning "an attorney' also. In view of the
above dictionary meaning of the, word
'business' it cannot be said that the
definition of business given in Section 45 of
the Partnership Act, 1890 (53 & 54 Vict. C.
39) was an extended definition intended for
the purpose of that Act only. Section 45 of
that Act says:
The expression 'Business" includes every
Trade, occupation, or profession".
724
"Section 2(b) of the Indian Partnership Act,
1932 also defines 'Business' thus:-
"Business' includes every trade, occupation
and profession."
"The observation of Rowlatt, J. in,
Christopher Barker & Sons v. Commissioner of
Inland Revenue, (1919) 2 KB 222 at p.228. 'All
professions are businesses, but all businesses
are not professions, ..." also supports the
view that professions are generally regarded
as business. The same learned Judge in an
other case Commissioner of Inland Revenue v.
Marine Steam Turbine Co. Ltd., (1920) 1.KB.
193 held:
"The word 'Business' however is also used in
another and a very different sense, as meaning
an active occupation or profession
continuously carried on and it is in this
sense the word is used in the Act with which
we are here concerned".
"The word "Business" is one of wide import and
it means an activity carried on continuously
and systematically by a person by the
application of his labour skiff with a view to
earning an income. We are of the view that in
the context in which the expression "business"
is used in Section 9(1) of the Act, there is n
o
warrant for giving a restricted meaning to it
excluding professional connections from its
scope."
In each of these cases, depending upon the statute, either
"occupation" or 'business' has come to be defined.
Certainly, it cannot be contended that establishment of an
educational institution would be "business". Nor again,
could that be called trade since no trading activities
carried on. Equally, it is not a profession. It is one
thing to say that teaching is a profession but, it is a
totally different thing to urge that establishment of an
educational institution would a profession. It may perhaps
fall under the category of occupation provided no
recognition is sought from the State or affiliation from the
University is asked on the basis the it is a fundamental
right. This position is explained, below:
725
However, some of the learned counsel relied on Bangalore
Water Supply and Sewerage Board v. R Rajappa, [1978] 3 SCR
207 to urge that the activity of running an educational
institution was an industry. In that case, Krishna Iyer, J.
observed:
"To Christian education as a mission, even if
true, is not to negate it being an Industry,
we have to look at education activity from the
angle of the Act and so viewed the ingredients
of education are fufiled. Education is,
therefore, an industry nothing can stand in
the way of that conclusion."
This ruling was relied on in Miss Sundarambai
v. Government of Goa, [1988] Suppl. 1 SCR 604
at page 608B. It was held:
"Thus it is seen that even though an
educational institution has to be treated as
an industry in view of the decision in the
Bangalore Water Supply and Sewerage Board v.
R. Rajappa (supra) the question whether
teachers in an educational institution can be
considered as workmen still remains to be
decided.'
It requires to be carefully noted that while considering as
to what would constitute an industry under the Industrial
Disputes Act, these observations came to be made.
Certainly, that is very different from claiming a
fundamental tat right under Article 19(1) (g).
Even on general principles, the matter could be approached
this way. Educational institutions can be classified under
two categories:
1. Those requiring recognition by the State and
2. Those who do not require such a recognition..
It is not mere an establishment of educational institution,
that is urged by the petitioners, but, to run the educational
institution dependent on recognition by the
State. There is absolutely no fundamental right to
recognition in any citizen. The right to establishment and
run the educational institution with State's recognition
arises only on the State permitting pursuant to a policy
decision or on the fulfilment of the conditions of the
Statute. Therefore, where it is dependent on the permission
under the
726
statute or the exercise of an executive power, it cannot
qualify to be a fundamental right. Then again, the State
policy may dictate a different course.
The logical corollary of holding that a fundamental right to
establish in educational institution is available under
Article 19(1) (g) would lead of the proposition, right to
establish a university also. In fact, this Court had
occasion to point out in S. Azeez Basha and Anr v. Union of
India, 19681 1 SCR 833 at page 848 thus:
"Before we do so we should like to say that
the words educational institutions" are of
very wide import and would include a
university also. This was not disputed on
behalf of the Union of India and therefore it
may be accepted that a religious minority had
the right to establish a university under Art.
30(1). The position with respect to the
establishment of Universities before the
Constitution came into force in 1950 was this.
There was no law in India which prohibited any
private individual or body from establishing a
university and it was therefore open to a
private individual or body to establish a
university. There is a good deal in common
between educational institutions which are not
universities and those which are universities.
Both teach students and both have teachers for
the purpose. But what distinguishes a
university from any other educational
institution is that a university grants
degrees of its own while other educational
institutions cannot. It is this granting of
degrees by a university which distinguishes it
from the ordinary run of educational
institutions. (See St. David's College,
Lampeter v. Ministry of Educations 1951 1 All
E.R. 559). Thus in law in India there was no
prohibition against establishment of
universities by private individuals or bodies
and if any university was so established it
must of necessity be granting degrees before
it could be called a university. But though
such a university might be granting degrees it
did not follow that the Government of the
country was bound to recognise those degrees."
727
It there is no fundamental right to establish a university a
fortiori a fundamental right to establish an educational
institution is not available.
By implication also a fundamental right of the nature and
character conferred under Article 30 cannot be read into
Article 19(1) (g). The conferment of such a right on the
minorities in a positive way under Article 30 negatise the
assumption of a fundamental right in this behalf in every
citizen of the country.
In Ahmedabad St. Xaviers College Society v. State of
Gujarat, [1975] 1 SCR 173 at page 191 it is observed:
"The tight to establish and administer
educational institutions of their choice has
been conferred on religious and linguistic
minorities so that the majority who can always
have their tights by having proper legislation
do not pass a legislation prohibiting
minorities to establish and administer
educational institutions of their choice. If
the scope of Article 30(1) is made an
extension of the right under Article 29(1) as
the right to establish and administer
educational institutions for giving religious
instruction or for imparting education in
their religious teachings 'or tenets the
fundamental right of minorities to establish
and administer educational institution of
their choice will be taken away.
(Emphasis Supplied)
At page 192 it is observed:
"Article 30 is a special right to minorities
to establish educational institutions of their
choice. This Court said that the two Articles
create two separate rights though it is
possible that the rights might meet in a given
case.
The real reason embodied in Article 30 (1) of
the Constitution is the conscience of the
nation that the minorities, religious as well
as linguistic, are not prohibited from
establishing and administering educational
institutions of their choice for the purpose
of giving their children the best general
education to make them com-
728
plete men and women of the country. The
minorities are given this protection under
Article 30 in order to preserve and strengthen
the integrity and unity of the country. The
sphere of general secular education is
intended to develop the commonness of boys and
girls of our country. This is in the true
spirit of liberty, equality and fraternity
through the medium of education. If religious
or linguistic minorities are not given
protection under Article 30 to establish and
administer educational institutions of their
choice, they will feel isolated and separate.
General secular education will open doors of
perception and act as the natural fight of
mind for our countrymen to live in the whole."
Then again, at page 224 it is observed:
"The idea of giving some special rights to the
minorities is not to have a kind of privileged
or pampered section of the population but to
give to the minorities a sense of security and
a feeling of confidence. The great leaders of
India since time immemorial had preached the
doctrine of tolerance and cathnolicity of
outlook. Those noble ideas were enshrined in
the Constitution. Special rights for
minorities were designed not to create
inequality. Their real effect was to bring
about equality by ensuring the preservation of
the minority institutions and by guaranteeing
to the minorities autonomy in the matter of
the administration of these institutions. The
differential treatment for the minorities by
giving them special rights is intended to
bring about an equilibrium, so that the ideal
of -quality may not be reduced to a mere
abstract idea but should become a living
reality and result in true, genuine equality,
an equality not merely in theory but also in
fact. The majority in a system of adult
franchise hardly needs any protection. It can
look after itself and protect its interests.
Any measure wanted by the majority can without
much difficulty be brought on the statute
book because the majority can get that done by
giving such a mandate to the elected
representatives. It is only the
729
minorities who need protection, and article
30, besides some other articles, is intended
to afford and guarantee that protection.
(Emphasis supplied)
The argument that every activity or occupation by the mere
fact of its not being abnoxious or harmful to society-,
cannot by itself be entitled to protection as fundamental
right. As pointed out above, some rights, by the very
nature, cannot be qualified to be protected as fundamental
rights.
Accordingly, it is held that there is no fundamental right
under Article 19(1) (g) to establish an educational
institution, if recognition or affiliation is sought for
such an educational institution. It may be made clear that
any one desirous of starting an institution purely for the
purposes of educating the students he could do so but
Sections 22 and 23 of the University Grants Commission Act
which prohibits the award of degrees except by a University
must be kept in mind.
The next question which calls for determination is; does
recognition or affiliation make the educational institution
an instrumentality ? We propose to examine this question
with reference to the following cases.
In Ajay Hasia v. Khalid Mujib Sehravardi, [1981] 2 SCR 79 at
pages 96 and 97 it was observed:
"The tests for determining as to when a
corporation can be said to be an
instrumentality or agency of Government may
now be called out from the judgment in the
Intemational Airport Authority's case. These
tests are not conclusive or clinching, but
they are merely indicative indicate which have
to be used with care and caution, because
while stressing the necessity of a wide
meaning to be placed on the expression "other
authorities', it must be realised that it
should not be stretched so far as to bring in
every autonomous body which has some nexus
with the Government within the sweep of the
expression. A wide enlargement of the meaning
must be tempered by a wise limitation. We may
summarise the relevant tests gathered from the
decision in the Intemational Airport
730
Authority's case as follows:
(1)"One thing is clear that if the entire
share capital of the corporation is held by
Government it would go a long way towards
indicating that the corporation is an
instrumentality or,agency of Government."
(2)"Where the financial assistance of the
State is so much as to meet almost entire
expenditure of the corporation, it would
afford some indication of the corporation
being impregnated with governmental
character."
(3)"It may also be a relevant factor...
whether the corporation enjoys monopoly status
which is the State conferred or State
protected."
(4)"Existence of deep and pervasive State
control may afford an indication that the
Corporation is a State agency or
instrumentality.'
(5)"If the functions of the corporation of
public importance and closely related t
o
governmental functions, it would be a relevant
factor in classifying the corporation as an
insmmentality or agency of Government."
(6)"Specifically, if a department of
Government is transferred to a corporation, it
would be a strong factor supportive of this
inference of the corporation being an
instrumentality or agency of Government."
If on a consideration of these relevant
factors it is found that the corporation is an
instrumentality or agency of government, it
would, as pointed out in the Inter alia
Airport Authority's case, be an 'authority'
and, therefore, 'State' within the meaning of
the expression in Article 12.
We find that the same view has been taken by
Chinnappa Reddy, J. in a subsequent decision
of this Court in the UP. Warehousing
Corporation v. Vijay Narain [1980] 3 SCC 459
and the observations made by the learned Judge
in that case strongly reinforced the view,we
are
731
taking particularly in the matrix of our
constitutional system."
Ranganath Mishra, J. (as he then was), speaking for the
Court, after a succinct analysis of the entire case law on
the subject concludes in Tekraj Vasandi v. Union of India
[1988] 1 SCC 236 at page 257 as under:
"We have several cases of societies registered
under Societies Registration Act which have
been treated as 'State' but in each of those
cases it would appear on analysis that either
governmental business had been undertaken by
the Society or what was expected to be the
public obligation of the 'State' had been
undertaken to be performed as a part of the
Society's function. In a Welfare State, as
has been pointed out on more than one occasion
by this Court, governmental control is very
pervasive and in fact touches all aspects of
social existence. In the absence of a fair
application of the tests to be made, there is
possibility of turning every non-governmental
society into an agency or instrumentality of
the State. That obviously would not serve the
purpose and may be far from reality. A broad
picture of the matter has to be taken and a
discerning mind has to be applied keeping the
realities and human experiences in view so as
to reach a reasonable' conclusion. Having
given our anxious consideration to the facts
of this case, we are not in a position to hold
that ICPS is either an agency or
instrumentality of the State so as to com
e
within the purview of 'other authorities' in
Article 12 of the Constitution. We must say
that ICPS is a case of its type typical in
many ways and the normal tests may perhaps not
properly apply to test its character.'
The same learned Judge, after referring to the tests
adumberated in Ajay Hasia (supra), holds in All India Sainik
Schools Employees Assn. v. Sainik Schools Society, [1989]
Supp 1 SCC 205 at 212:
"...... that the Sainik School Society is also
'State'. The entire funding is by the State
Governments and the Central Government. The
overall control vests in the governmental
authority. The main object of the Society is
732
to run schools and prepare students for the
purpose of feeding the National Defence
Academy. Defence of the country is one of the
regal functions of the State."
Applying these tests, we find it impossible to hold that a
private educational institution either by recognition or
affiliation to the university could ever be called an
'instrumentality of State. Recognition is for the purposes
of conforming to the standards laid down by the State.
Affiliation is with regard to the syllabi and the course of
study. Unless and until they are in accordance with the
prescription of the University, degrees would not be
conferred. The educational institutions prepare the
students for the examination conducted by the university.
Therefore, they are obliged to follow the syllabi and the
course of the study.
As a sequel to this, an important question arises: what is
the nature of functions discharged by these institutions ?
they discharge a public duty. If a student desires to
acquire a degree, for example, in medicine, he will have to
route through a medical college. These medical colleges are
the instruments to attain the qualification. If, therefore,
what is discharged by the educational institution, is a
public duty that requires, duty and act fairly.
In such a case, it will be subject to Article 14.
Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvama
Jayanti Mahotsav Samarak Trust v. VR. Rudani, [1989] 2 SCC
691 is an interesting case where a writ of mandamus was
issued to a private college. In paragraph 12 at page 697 it
was held:
"The essense of the attack on the
maintainability of the writ petition under
Article 226 may now be examined. It is argued
that the management of the college being a
trust registered under the Bomaby Public Trust
Act is not amenable to the writ jurisdiction
of the High Court. The contention in other
words, is that the trust is a private
institution against which no writ of mandamus
can be issued. In support of the contention,
the counsel relied upon two decisions of this
Court: (a) Executive Committee of Vanish
Degree College, Shamli v. Lakshmi Narain,
[1976] 2 SCC 58 and (b) Deepak Kumar Biswas v.
Director of Public Instructions, [1987] 2 SCC
252. In the first of the
733
two cases, the respondent institution was a
Degree College managed by a registered co-
operative society. A suit was filed against
the college by the dismissed principal for
reinstatement. It was contended that the
Executive Committee of the college which was
registered under the Co-operative Societies
Act and affiliated to the Agra University (and
subsequently to Meerut University) was a
statutory body. The importance of this
contention lies in the fact that in such as
case, reinstatement could be ordered if the
dismissal is in violation of statutory obliga-
tion. But this Court refused to accept the
contention. It was observed that the
management of the college was not a statutory
body since not created by or under a statute.
It was emphasised that an institution which
adopts certain statutory provisions will not
become a statutory body and the dismissed
employee cannot enforce a contract of personal
service against a non-statutory body."
At paragraphs 15 to 20 it was held:
"If the rights are purely of a private
character no mandamus can issue. If the
management of the college is purely a private
body with no public duty mandamus will not
lie.These are two exceptions to mandamus. But
once these are absent and when the party has no other equa
lly convenient remedy, mandamus
cannot be, denied. It has to be appreciated
that the appellants-trust was managing the
affiliated college to which public money is
paid as government aid. Public money paid as
government aid plays a major role in the
control maintenance and working of educational
institutions. The aided institutions like
government institutions discharge public
function by way of imparting education to
students. They are subject to the rules and
regulations of the affiliating University.
Their activities are closely supervised by the
University authorities Employment in such
institutions, therefore, is not devoid of any
public character. (See The Evolving Indian I
Administrative Law by M.P. Jain (1983) p. 226)
So are the service conditions of the academic
staff. When the
734
University takes a decision regarding their
pay scales, it will be binding on the
management. The service conditions of the
academic staff are, therefore, not purely of a
private character. It has super-added
protection by University decisions creating a
legal right-duty relationship between the
staff and the management. When there is
existence of this relationship, mandamus
cannot be refused to the aggrieved party.
The law relating to mandamus has made the most
spectacular advance. It may be recalled that
the remedy by prerogative writs in England
started with very limited scope and suffered
from many procedural disadvantages. To
overcome the difficulties, Lord Gardiner (the
Lord Chancellor) in pursuance of Section 3(1)
(e) of the Law Commission Act, 1965, requested
the Law Commission 'to review the existing
remedies for the judicial control of
administrative acts and omissions with a view
to evolving a simpler and more effective
procedure'. The Law Commission made their
report in March 1976 (Law Commission Report
No. 73). It was implemented by Rules of Court
(Order 53) in 1977 and given statutory force
in 1981 by Section 31 of the Supreme Court
Act, 1981. It combined all the former
remedies into one proceeding called Judicial
Review. Lord Denning explains the scope of
this "judicial review:
"At one storke the courts could grant whatever
relief was appropriate. Not only certiorari
and mandamus, but also declaration and
injunction. Even damages. The procedure was
much more simple and expeditious. Just a
summons instead of a writ. No formal
pleadings. The evidence was given by
affidavit. As a rule no cross-examination, no
discovery, and so forth. But there were
important safeguards. In particular, in order
to qualify, the applicant had to get the leave
of a judge.
The statute, is phrased in flexible terms. it
gives scope for development. It uses the
words 'having regard to
735
Those words are indefinite. The result is
that the courts are not bound hand and foot by
the previous law. They are to 'have regard
to' it. So the previous law as to who are
and who are not public authorities, is not
absolutely binding.. Nor is the previous law
as to the matters in respect of which relief
may be granted. This means that the judges
can develop the public law as they think best.
That they have done and are doing. (See The
Closing Chapter by Rt. Hon. Lord Denning p.
122)"
There, however, the prerogative writ of
mandamus is confined only to public
authorities to compel performance of public
duty. The 'public authority' for them mean
every body which is created by statute and
whose powers and duties are defined by
statute. So government departments, local
authorities, police authorities, and statutory
undertakings and corporations, are all 'public
authorities'. But there is no such limitation
for our High Courts to issue the writ in the
nature of mandamus. Article 226 confers wide
powers on the High Courts to issue writs in
the nature of prerogative writs. This is a
striking departure from the English law.
Under Article 226, writs can be issued to "any
person or authority". It can be issued 'for
the enforcement of any of the fundamental
rights and for any other purpose".
226.Power of High Courts to issue certain
writs. (1) Notwithstanding anything in
Article 32, every High Court shall have power,
throughout the territories in relation to
which it exercises jurisdiction, to issue to
any person or authority including in
appropriate cases, any government within those
territories directions orders and writs,
including writs in the nature of habeas
corpus, mandamus, prohibition quo warranto and
certiorari or any of them for the enforcement
of any of the rights conferred by Part III and
for any other purpose.
The scope of this article has been explained
by Subba
736
Rao, J., In Dwarkanath v. ITO, [1965] 3 SCR 536:
This article is couched in comprehensive
phraseology and it ex-facie confers a wide
power on the High Courts to reach injustice
wherever it is found. The Constitution
designedly used a wide language in describing
the nature of the power, the purpose for which
and the person or authority against whom it
can be exercised. It can issue writs in the
nature of prerogative writs as understood in
England; but the scope of those writs also is
widened by the use of the expression "nature",
for the said expression does not equate the
writs that can be issued in India with those
in England, but only draws an analogy from
them. That apart, High Courts can also issue
directions, orders or writs other then the
prerogative writs. It enables the High Court
to would the reliefs to meet the peculiar and
complicated requirements of this country. Any
attempt to equate the scope of the power of
the High Court under Article 226 of the
Constitution with, that of the English courts
to issue prerogative writs is to introduce the
unnecessary procedural restrictions grown over
the years in ,a comparatively small country
like England with a unitary form of government
into a vast country like India functioning
under a federal structure. Such a
construction a construction defeats the
purpose of the article itself.
The term "authority" used in Article 226, the
context must receive a liberal meaning unlike
the term in Article 12. Artcle 12 is
relevant only for the purpose of enforcement
of fundamental rights under Article 32.
Article confers power on the High Courts to
issue writs for enforcement of the fundamental
rights as well as non-fundamental rights. The
words "any person or authority' used in
Article 226 are, therefore, not to be confined
only to statutory authorities and
instrumentalities of the State. They may
cover any other person or body performing
public duty. The form of the body concerned
is not very much relevant. What is relevant
is the nature of the duty imposed on the
body.The duty must be judge in the light
737
of positive obligation owed by the person or
authority to the affected party. No matter by
what means the duty is imposed, if a positive
obligation exists mandamus cannot be denied.
The emphasis in this case is as to the nature of duty
imposed on the body. It requires to be observed that the
meaning of authority under Article 226 came to be laid down
distinguishing the same term from Article 12. In spite of
it, if the emphasis is on the nature of duty on the same
principle it has to be held that these educational
institutions discharge public duties. Irrespective of the
educational institutions receiving aid it should be held
that it is a public duty. The absence of aid does not
detract from the nature of duty.
In R. v. Panel on Take-Overs, 1987 (1). All England Reports
564 at page 568 it is observed:
"The principal issue in this appeal, and the
only issue which may matter in the longer
term, is whether this remarkable body is above
law. Its respectability is beyond question.
So is its bona fides. I do not doubt for one
moment that it is intended to and does operate
in the public interest and that the enormously
wide discretion which it arrogates to 'itself
is necessary if it is to function efficiently
and effectively. While not wishing to become
'involved in the political controversy on the
relative merits of self-regulation and
governmental or statutory regulation, I am
content to assume for the purposes of this
appeal that seff-regulation is preferable in
the public interest. But that said, what is
to happen if the panel goes off the rails ?
Suppose, perish the thought, that it were to
use its powers 'in a way in which was
manifestly unfair. What then ? Counsel for
the panel submits that the panel would lose
the support of public opinion in the financial
markets and would be unable to continue to
operate. Further or alternatively, Parliament
could and would intervene. Maybe but how long
would that take and who in the meantime could
or would come. to the assistance of those who
were being oppressed by such conduct"?
738
At page 574 it is held:
"The picture which emerges is clear. As an
act of government it was decided that, in
relation to takeovers, there should be a
central self-regulatory body which would be
supported and sustained by a periphery of
statutory powers and penalties wherever non-
statutory powers and penalties were
insufficient or non-existent or where EEC
requirements called for statutory provisions."
At page 577 it is held:
"In fact, given its novelty, the panel fits
surprisingly well into the format which this
court had in mind in R.v. Criminal Injuries
Compensation Board. It is without doubt
performing a public duty and an important one.
This is clear from the expressed willingness
of the Secretary of State for Trade and
Industry to limit legislation in the field of
takeovers and mergers and to use the panel as
the centerpiece of his regulation of that
market. The rights of citizens are indirectly
affected by its decisions, some, but by no
means all of whom, may in a technical sense be
said to have assented to this situation, e.g.
the members of the Stock Exchange. At least
in its determination of whether there has been
a breach of the code, it has a duty to act
judicially and it asseas that its raison deter
is to do equity between one shareholder and
another. Its source of power is only partly
based on moral persuasion and the assent of
institution and their members, the bottom line
being the statutory powers exercised by the
Department of Trade and Industry and the Bank
of England. In this context I should be very
disappointed if the courts could not recognise
the realities of executive power and allowed
their vision to the clouded by the subtlety
and sometimes complexity of the way in which
it can be exerted.
Given that it is really unthinkable that, in
the absence of legislation such as affects
trade unions, the panel should go on its way
cocooned from the attention of the courts, in
defence of the citizenry, we sought to
investigate
739
whether it could conveniently be controlled by
established forms of private law e.g. torts
such as actionable combinations in restraint
of trade, and, to this end, pressed counsel
for the applicants to draft a writ. Suffice
it to say that the result was wholly
unconvincing and, not surprisingly, counsel
for the panel did not admit that it would be
in the least effective."
At page 584 it is held:
"More recently in R.v. BBC, ex p Lavelle,
(1983) 1 AU. ER 2451 (1983) 1 WLR Woolf J had
to consider an application for judicial review
where the relief sought was an induction under
Ord 53, 1 (2). The case was brought by an
employee of the BBC. In refusing relief Woolf
J said (1983) 1 AD ER 241 at 249, 1983 1 WLR
23 at 31:
"Paragraph (2) of r 1 of Ord 53 does not
strictly confine applications for judicial
review to cases where an order for mandamus,
prohibition or certiorari could be granted.
It Merely requires that the court should have
regard to the nature of the matter 'in respect
of which such relief may be granted. However,
although applications for judicial review are
not confined to those cases where relief could
be granted by way of prerogative order, I
regard the wording of Ord 53, r 1 (2) and sub-
s (2) of s 31 of the Supreme Court Act 1981 as
making it clear that the application for
judicial review is confined to reviewing ac-
titivities of a public nature as opposed to
those of a purely private or domestic
character. The disciplinary appeal procedure
set up by the BBC depends purely on the
contract of employment between the applicant
and the BBC, and therefore it is a procedure
of a purely private or domestic character."
739
PRIVATE COLLEGES AND THEIR ROLE.
The Union of India takes the stand that the Central
Government does not have the resources to undertake any
additional financial responsibility for medical or technical
education. Taking the case of medical
740
education, the total plan outlay for the health sector is
3.2 per cent and medical education gets a pro-rata share
after apportionment of priorities and allocation of
available funds. Priorities include promotions of primary
health, hospital services etc. The Government in particular
is unable to aid any private educational institution
financially at levels higher than at present. Certain
statistical details regarding the cost of medical education
have been given in the counter affidavit of the Central
Government. Paragraphs 5 to 9 of the affidavit may kindly
be seen in this connection.
It has, therefore, been the policy of the Central Government
to involve private and voluntary efforts in the sector of
education in conformity with accented norms and goals. The
adverse consequences which will follow if private
educational institutions have to limit themselves to a fee
structure which is charged in Government medical and
technical educational institutions have been enumerated in
paragraph 9 of the counter affidavit of the Union of India.
The Central Government's policy on education was formulated
in the year 1986. Modifications were undertaken in 1992.
The relevant extracts from the National Policy on
Education, being paragraph 6.20, 10.1, 10.9 and 11.2 are set
out herein below:
"6.20 In the interests of maintaining
standards and for several other valid reasons,
the commercialisation of technical and
professional education will be curbed. An
alternative system will be devised to involve
private and voluntary effort in this sector of
education, in conformity with accepted norms
and goals."
"10.1 An overhaul of the system of planning
and the management of education will receive
high priority. The guiding considerations
will be:
(a) Evolving a long- term planning and
management perspective of education and its
integration with the country's developmental
and manpower needs:
(b) Decentralisation and the creation of a
spirit of autonomy for educational
institutions;
741
(c)Giving pre-eminence to people, involvement,
including association of non-governmental
agencies and voluntary effort;
(d)Inducting more women in the planning and
management of education;
(e)Establihing the principle of accountability
in relation to given objectives and norms."
"10.9 Non-Government and voluntary effort
including social activist groups will be
encouraged, subject to proper management, and
financial assistance provided. At the same
time, steps will be taken to prevent the
establishment of institutions set up to
commercialise education."
"11.2 Resources, to the extent possible, will
be raised by mobilising donations, asking the
beneficiary communities to maintain school
buildings and supplies of some consumables,
raising fees at the higher levels of education
and effecting some savings by the efficient
use of facilities. Institutions involved with
research and the development of technical and
scientific manpower should also mobilize some
funds by levying a cress or charge on the user
agencies, including Government departments,
and entrepreneurs. All these measures will be
taken not only to reduce the burden on State
resources but also for creating a greater
sense of responsibility within the educational
system. However, such measures will
contribute only marginally to the total
funding. The Government and the community in
general will find funds for such programmes
as; the universalisation of elementary
education; liquidating illiteracy; equality of
access to educational opportunities to all
sections throughout the country; enhancing the
social relevance, quality and functional
effectiveness of educational programmes;
generating knowledge and developing
technologies in scientific fields crucial to
self-sustaining economic development and
creating a critical consciousness of the
values and imperatives of national survival."
742
Therefore, as on today, it would be unrealistic and unwise
to discourage private initiative in providing educational
facilities, particularly for higher education. The private
sector should be involved and indeed encouraged to augment
the much needed resources in the field of education, thereby
making as much progress as possible in achieving the
constitutional goals in this respect. It could be concluded
that the private colleges are the felt necessities of time.
That does not mean one should tolerate the "so-called
colleges" run in thatched huts with hardly any equipment,
with no or improvised laboratories, scarce facility to learn
in an unhealthy atmosphere, far from conducive to education.
Such of them must be put down ruthlessly with an iron hand
irrespective of who has started the institution or who
desires to set up such an institution. They are poisonous
weeds in the field of education. Those who venture are
financial adventurers without morals or scrupules. Their
only aim is to make money, driving a hard bargain,
exploiting eagerness to acquire a professional degree which
would be a passport for employment in a country rampant with
unemployment. They could be even called pirates in the high
seas of education.
At this juncture, it is worthwhile to refer to the
Resolution passed at the 48th AR India Medical Conference:
"Resolution No. 2
Racketeering in Medical Education:
Whereas, a number of institutions have sprung
up in the country that style themselves as
Medical College; and
Whereas, such institutions charge large sums
as capitation fees, a practice which the
Indian Medical Association and the Medical
Council of India have opposed a number of
times; and Whereas, such institutions neither
have suitable buildings, nor proper equipment
and even lack adequate staff of requisite
qualifications and further it has come to
light that these institutions swindle the
public by taking large sums, of money from
students although these institutions have not
been recognised by the authorities;
743
This 48th All India Medical Conference urges
upon the Governments to take stringent
measures against persons/institutions
who/which run such medical colleges and close
them and recommend to the Medical Council of
India not to grant them recognition.
(48th Conference Dec. 29, 31, 1972 at Ahmedabad)"
However, a word of caution requires to be uttered. Not all
the private instutions belong to this category. There are
institutions which have attained great reputation by
devotion and by nurturing high educational standards. They
surpass the colleges run by the Government in many respects.
They require encouragement. From this point of view
regulatory controls have to be continued and strengthened.
The commercialisation of education, the racketeering must be
prevented. The State should strive its utmost in this
direction.
Regulatory measures must so ensure that private educational
institutions maintain minimum standards and facilities.
Admission within all groups and categories should be based
only on merit. There may be reservation of seats in favour
of the weaker sections of the society and other groups which
deserve special treatment. The norms for admission should
be pre-determined, objective and transparent.
Before the scheme, a question may arise whether a mandamus
could issue for the enforcement of scheme if proposed by the
Court. For this, we may look up at Suman Gupta and Ors. v.
State of J & K and Ors., [1983] 3 SCR 985 at page 991:
"The Medical Council of India is directed to
formulate a proper constitutional basis for
determining the selection of candidates for
nomination to seats in Medical Colleges
outside the State in the light of the
observations contained in this judgment.
Until a policy is so formulated and concrete
criteria are embodied in the procedure
selected, the nominations shall be made by
selecting candidates strictly on the basis of
merit, the candidates nominated being those,
in order of merit, immediately below the
candidates selected for admission to the
Medical Colleges of the home State."
744
It cannot be gainsaid that profiteering is an evil. If a
public utility like electricity could be controlled,
certainly, the professional colleges also require to be
regulated.
In Kerala State Electricity Board v. S.N. Govinda Prabhu,
[1986] 3 SCR it is held:
"It is a public utility monopoly undertaking
which may not be driven by pure profit motive
not that profit is to be shunned but that
service and not profit should inform its
actions. It is not the function of the Board
to so manage its affairs as to earn the
maximum profit even as a private corporate
body may be inspired to earn huge profits with
a view to paying large dividends to its
shareholders. But it does not follow that the
Board may not and need not earn profits for
the purpose of performing its duties and
discharging its obligations under the statute.
It stands to common sense that the Board must
manage its affairs on sound economic
principles. Having ventured into the field of
Commerce, no public service urdertaking can
afford to say it will ignore business
principles which are as essential to public
service undertakings as to Commercial
ventures."
At pages 650-51 it is held:
"The Board may not allow its character as a
public utility undertaking to be changed into
that of a profit motivated private trading or
manufacturing house. Neither the tariffs nor
the resulting surplus may reach such heights
as to lead to the inevitable conclusion that
the Board has shed its public utility
character. When that happens the Court may
strike down the revision of tariffs as plainly
arbitrary."
In Oil and Natural Gas Commission and Anr v.
Association of Natural Gas Conmming Industries
of Gujarat and others, [1990] Supp. SCC 397
at 399 it is held:
The notion that the 'cost plus' basis can be
the only criterion for fixation of prices in
the case of public
745
enterprises stems basically from the concept
that such enterprises should function either
on a no profit no loss basis or on a minimum
profit basis. This is not a correct approach.
In the case of vital commodities or services,
while private concerns must be allowed a
minimal return on capital invested, public
undertakings or utilities may even have to run
at losses, if need be and even a minimal
return may not be assured. In the case of
less vital, but still basic commodities, they
may be required to cater to needs with a
minimum profit margin for themselves. But
given a favourable area of operation,
"commercial profits' need not be either
anathema or forbidden fruit even to public
sector enterprises."
In Hindustan Zinc Ltd v. A.P.S.E.B., [1991] 3
SCC 299 at pages 306-307 it is held:
"This Court expressly rejected the submission
which had found favour with the Kerala High
Court that in the absence of a specification
by the State Government, the position would be
as it was before the 1978 amendment, that is,
the Board was to carry on its affairs and
adjust the tariffs in such a manner as not to
incur a loss and no more. While rejecting the
submission, this Court held as under: (SCC pp.
213-14, para 10)
"We are of the view that the failure of the
government to specify the surplus which may be
generated by the Board cannot prevent the
Board from generating a surplus after meeting
the expenses required to be met. Perhaps, the
quantum of surplus may not exceed what a
prudent public service undertaking may be
expected to generate without sacrificing the
interests it is expected to serve and without
being obsessed by the pure profit motive of th
e
private entrepreneur. The Board may not allow
its chara cter as a public utility undertaking
to be changed into that of a profit motivated
private trading or manufacturing household.
Neither the tariffs nor the resulting surplus
may reach such heights as to lead to the
inevitable conclusion
746
that the Board has shed its public utility
character. When that happens the Court may
strike down the revision of tariffs as plainly
arbitrary. But not until then. Not, merely
because a surplus has been generated, a
surplus which can by no means be said to be
extravagant. The court will then refrain from
touching the tariffs. After all as has been
said by this Court often enough 'price
fixation' is neither the forte nor the funtion
of the Court."
It cannot be conteded that education must be available free
and it must be run on a charitable basis. In this
connection, we may usefully quote P.R. Ganapathy Iyer's The
Law relating to Hindu and Mahomedan Endowments, as to the
concept of charity which is elastic. At page 46 of Chap.
III it is stated:
"A charitable establishment is a choultry,
college, dispensary etc., while a religious
establishment is a mosque, temple etc. For
these endowments may be made.'
At page 47 it is stated:
"In English law the word 'charity' has both a
popular and a technical meaning. The popular
meaning of the word does not coincide with its
legal or technical meaning. Even according to
the popular or ordinary meaning the word is
used in more senses than one. In a narrow and
limited sense the ordinary acceptation of the
word is "relief of physical necessity or
want". (Per Lord Shand in Baird's Trustees v.
Lord Advocate, 15 Sess. Cas. 4th Series 682)
In a somewhat more extended sense, the
ordinary and popular acceptation of the word
is 'refief of poverty' and "a charitable act
or purpose" consists in refieving poverty or
want. (bid per Lord President (Ingfis). In a
still more extended sense and in its popular
and ordinary acceptation 'charity' comprehends
all benefits, whether religious, intellectual
or physical bestowed upon persons who, by
reason of their poverty, are unable to obtain
such benefits for themselves withou
t
assistance. (Per Lord Watsom in Commissioners
for special purposes of Income-tax v. Pemsel
(1891) A.C. 531 (557)."
747
At page 49 it is stated:
"Charity in its legal sense as understood in
the English Law comprises four principal
divisions:- (1) trusts for the relief of
poverty-, (2) trusts for the advancement of
education; (3) trusts for advancement of
religion; (4) and trusts for other purposes
beneficial to the community not falling under
any of the preceding heads.'
In B.K. Mukherjee on the The Hindu Law of
Religious and Charitable Trust at page 58 para
2.7A it is stated:
"2.7A. Education:- The second category on
charitable trusts in Lord McNaghten's
classification comprises trusts for education.
These trusts need not be meant exclusively for
the poor. Of course, there must be a public
purpose, something tending to the benefit of
the community. There must be general public
benefit through the advancement or furtherance
of some educational purpose. But if this
important condition is satisfied, the scope of
"education" would appear to be fairly wide in
several respects.'
In St. Stephen's College v. University of
Delhi, [1992] 1 SCC 558 at page 609-10 it is
held:
"The educational institutions are not business
houses. They do not generate wealth. They
cannot survive without public funds or private
aid. It is said there is also restraint on
collection of students fees. With the
restraint on collection of fees, the
minorities cannot be saddled with the burden
of maintaining educational institutions
without grant-in-aid. They do not have
economic advantage over others. It is not
possible to have educational institutions
without State aid. This was also the view
expressed by Das, CJ., in Kerala Education
Bill case, (1970) 2 SCC 417: [1971] 1 SCR 734.
The minorities cannot, therefore, be asked to
maintain educational institutions on their
own."
The time is not yet ripe to hold that education must be made
available on a charitable basis. It is true whenever trusts
are made for
748
advancement of education it was held to be a charitable
purpose. In Special Commissioners of Income-tax v. Pemsel,
3 Tax Cases 53 at 96 the dictum of Lord Macnaghten is as
follows:
"No doubt, the popular meaning of the words
"charity' and "charitable" does not coincide
with their legal meaning, and no doubt it
is easy enough to collect from the books a few
decisions which seem to push the doctrine of
the Court to the extreme, and to present a
contrast between the two meanings in an aspect
almost ludicrous. But still it is difficult
to fLx the point of divergence, and no one has
yet succeeded in defining the popular meaning
of the word "charity'. The learned counsel
for the Crown did not attempt the task. Even
the paraphrase of the Master of the Rolls is
not quite satisfactory.......... "Charity' in
its, legal sense comprises four principal
divisions: trusts for the relief of poverty,
trusts for the advancement of education,
trusts for the advancement of religion, and
trusts for other purposes beneficial to the
community not falling under any of the
preceding heads. The trusts last referred to
are not the less charitable in the eye of the
law because incidentally they benefit the rich
as well as the poor, as indeed every charity
that deserves the name must do, either
directly or indirectly."
The next case to which reference can be made is The King v.
The Commissioner for Special Purposes of the Income-tax, 5
Tax cases 408. The question arose whether the University
College of North Wales could be held as established for
charitable purposes. Fletcher Moulton, LJ. relying on
Pemsel's case (supra) held that a trust for advancement of
edur-ation was charitable.
In The Abbey Malvem Wells, Ltd v. Minister of Town and
Country Planning, 1951 (2) All England Law Reports 154 at
pages 160-161 it was held:
"In the present case, it seems to me that one
is entitled, and indeed, bound, to look at the
constitutional of the company to see who, in
fact, is in control. I find that, by Art. 3
of the company's articles, the company is
controlled
749
entirely by a body called a council a body of
persons, and, by Art. 64 that body of persons
must be the trustees of the trust deed.
Therefore, while the company, theoretically,
has the power to apply its property and assets
for the purpose of making profits and devoting
the resulting profit to the distribution of
divident among the members, I find that the
persons who regulate the operations of the
company are not free persons unrestricted in
their operations, but are the trustees of the
trust deed, and, under the terms of the trust
deed, they may use the property of the company
only in a particular way and must not make us
of the assets of the company for the purpose
of a profit-making concern. I find that they
are strictly bound by the trusts of the trust
deed, and that those trusts are charitable
trusts. It seems to me, therefore, that,
while nominally the property of the company is
held under the provisions of the memorandum
and articles of association, in actual fact
the property of the company is regulated by
the terms of the memorandum and articles of
association plus the provisions of the trust
deed, and, therefore, the company is
restricted in fact in application of its
property and assets and may apply them only
for the charitable purposes which are
mentioned in the trust deed."
This may be so, for the purpose of defining charity, but' in
a country like ours it is impossible to hold that such
theories could be advanced or implemented.
N.P.V. Petitions and Appeals disposed of
750
