In the Supreme Court of India Civil Appellate Jurisdiction Case No. 1955 AIR 781, 1955 SCR (2) 589 Appellants Unni Krishnan J.P & ors Respondent State of Andhra Pradesh & ors Decided on 4 Feb. 1993 Bench M. Sharma C.J.; R. Pandian; Mohan; P. Jeevan Reddy; P. Bharucha
These are a string of writ petition and civil appeals filed before the Hon’ble Supreme Court of India. The question arose on the determination of the extent of Article 21 i.e., the Right to Life and Personal Liberty under the Indian Constitution. The petitions were presented with the prayer that the professional education must also be a part of the right to education. The major contention on the side of the petitioner is that since the right to education is applicable to primary education, it is also applicable to the professional education. The bench of the Hon’ble Supreme Court disapproved with such a contention and the petition was dismissed.
Political and factual Background
If the judgment rendered in Mohini Jain is followed by the state governments then the functioning medical and engineering colleges must be closed down. There was chaos and confusion among the educational institutions in Tamilnadu, Karnataka, Andhra Pradesh and Maharashtra which feared that strict compliance with the judgment will force the educational institutions to run in loss.
The Karnataka Legislature enacted, in the year 1984, the Karnataka Educational Institutions (Prohibition of Capitation fee) Act. it is mentioned in the Act that any sum which is obtained by any person involved in the management of the educational institution more than the fee will be considered as a capitation fee and the Karnataka Legislation prohibits collection of capitation fee. The Act also intervenes the functioning of the educational institutions by giving enormous power to government to fix the tuition fees, prescribing minimum qualifications and fixing the admission procedures. Similar Acts were passed by Andhra Pradesh Legislature, State Legislature of Maharashtra, State Legislature of Tamilnadu which resulted in famous cases of Mohini Jain and Kranti Sangram Parishad v. N.J. Reddy, (3) ALT 99.
The case was based on the judgment which was given in Mohini Jain v. State of Karnataka, where the Court held that the citizens are having the fundamental right to education. But the specific question that the right to primary education as mentioned in Article 45 of the Constitution of India is a fundamental right under Article 21 is not discussed in the above case. Thus it becomes pertinent on the part of the Apex Court to clarify this issue.
Constitution and Statutory Provisions
Article 26 of Universal Declaration of Human Rights
Articles 19, 21, 14, 25, 27, 32, 39, 41 and 226 of Constitution of India.
- § 2(h), 11, 13, 19, 21, 27, 32 and 33 of Indian Medical Council Act, 1956.
- § 12, 12A, 14, 22, 23, 25, 26 of University Grants Commission Act, 1955.
- § 3, 10, 23 of ALL INDIA COUNCIL FOR TECHNICAL EDUCATION ACT, 1987.
The case comes into subsistence through petitions filed by the private educational institutions to challenge the state laws. These state laws were enacted to regulate the capitation fee charges in the states of Tamilnadu, Karnataka, Andhra Pradesh and Maharashtra. Some educational institutions in those states have resisted and challenged the same before the Apex Court. It also served as the platform to question the precedent established in this concern, Mohini Jain v. State of Karnataka. Moreover, the ambit of Article 21 of Constitution of India is discussed with its extension to the right to Education. The important question posed before the Court is whether the right to education under Article 21 extends to adult professional education.
Issues which were in Challenge
- Whether a citizen has a fundamental right to education for a medical, engineering or other professional degree?
- Whether the Constitution of India guarantees a fundamental right to education to its citizens?
- Whether there is a fundamental right to establish an educational institution under Article 19(1)(g)?
- Does recognition or affiliation make the educational institution an instrumentality?
Contention of the petitioners
- The running of an educational institution is an industry.
- It is the duty of the State to provide education to all immaterial of the social and economic conditions. Moreover the contention was based on the Mohini Jain case which broadened the scope of education.
- The state has no monopoly in rendering education and it is in contradiction with Article 19 (1) (g) of the Constitution of India as imparting education can be considered as a business adventure.
- The government has exercised unnecessary state control which influences the market forces (demand and supply) and affects free play.
- The establishment of educational institution is no different from forming any other business venture or institution it is immaterial whether the institution is formed for profit motive or not. It is also pertinent to note that recently there is no financial assistance or charitable contributions from people.
- The petitioners have the right to establish a self-financing educational institution where the autonomy is given to collect fees and money from people. The needs like expansion, improvement, diversification and growth differs from institution to institution and the stat e must respect this autonomy.
- By virtue of mere recognition or affiliation, the educational institutions will not become instrumentalities of the state.
Contentions of the respondent
- The affidavit was presented by the respondent to show the attempts taken by the government in implementing Article 45.
- The state has the duty only to provide primary education to the children as Article 45 mandates only providing free and compulsory primary education for children of 14 years age or less than fourteen years age.
- Moreover the cost involved in higher education is humungous and it is dependent on the economic and social circumstances of the country.
- The accessibility of the primary schools have also been increased which makes the children to approach schools easily within walkable distance.
- The tuition fees is eliminated and only the incidental expenses like uniform, books, bags are borne by the public.
- 14 states and Union territories have enacted the legislation to make the primary education compulsory with corresponding rules and regulations.
- It was contended that there would be huge financial mismanagement in providing education to medicine. It was mentioned that 3.2% of the total financial share was given for health sector where prorata share is given to the medical education. Priorities were given to the health sector dealing with issues like promotions of primary health and hospital services. Moreover, certain statistical data were give regarding the cost incurred in medical education.
- Imparting education is considered as a religious duty from time immemorial and as a charitable purpose but cannot be constricted as an occupation.
- Imparting education is a public duty which has to be performed by the state or through the instrumentality of states like private educational institutions.
- The very concept of collecting the cost for education is against the public policy which is nothing but exploitation.
- Imparting education to people is a state function which must be subjected to the rules and regulations of the state to which the private educational institutions are not exceptions.
- The fundamental rights guaranteed under Part III of the Constitution can be divided into two classes, A) one, Injunction restraining the State from denying certain fundamental rights like Articles 14 and 21. B) A positive enforcement of such fundamental rights under Articles 19, 25 and 26 etc.
- Similarly, Article 21 was presented with a negative language which acts a basic human right. It acts as a shield against deprivation of life or personal liberty.
- Article 19 only talks about the specific rights whereas Article 21 takes in and comprises the residual rights of a man.
- It is not correct to state that since Article 21 was coated with a negative language, positive rights of life and liberty cannot be conferred to that article.
- Part III and Part IV are not mutually exclusive but are complementary to each other and thus any directive state policy can be converted to a fundamental right of a citizen.
- A number of rights were once again reaffirmed to be a part fo Article 21 like right to go abroad, right to privacy, the right against solitary confinement, right against bar fetters, right to legal aid, right to speedy trail, right against handcuffing, right against delayed execution, right against custodial violence, right against public hanging, Doctor’s assistance and Right to shelter and the supportive cases were also mentioned. Thus Article 21 is the heart of the fundamental rights which expanded from time to time and there is no wrong in interpreting it in consonance with Article 45 of the Constitution of India.
- Only exception to not approach the court is that the denial of the right to life and liberty is supported by a just and fair piece of legislation.
- If education has to be interpreted and incorporated into life, it has to be interpreted with the directive principles. The court has taken a view that there must be harmonious interpretation of the fundamental rights vis-à-vis the directive principles of state policy. The Directive Principles form the fundamental feature and the social conscience of the Constitution enjoins upon the state to implement these policies. These directives provide the policy, guidelines and the end of the socio-economic freedom which is supplemented and implemented by means of the Fundamental rights. When there is no apparent inconsistency between the fundamental rights and the Directive Principles of State Policy there will not be any problem in applying the harmonious construction.
- Fundamental rights and Directive Principles of State Policy form the social conscience of the Constitution and the purpose of the directive principles is to bring about non violent social revolution for immediate attainment of certain socio and economic goals.
- The state has to protect the welfare of the citizens and ensure security and protection of social order in which social, economic and political justice will prevail.
- Educational institutions can be classified into two types: A) Those institutions requiring recognition by the state and B) those institutions which do not require such recognition.
- The petitioners have asked for running the educational institutions dependant on recognition by the State. There is absolutely no fundamental right in recognition to any citizen and such recognition arises only on State’s permission based on a policy decision or fulfillment of the conditions of the Statute. And such dependency on State will not qualify it as a fundamental right. Moreover, anyone who is desirous of forming the institution must subject himself to §§ 22 and 23 of the University Grants Commission which prohibits the award of degrees except by an University.
- The right to establish an institution is allowed under Article 19(1)(g) of the Constitution of India but it cannot be equated with right to form education institutions by religious and linguistic minorities as it is special right conferred on minority citizens which is in pursuance of providing security and confidence to them in this society. It is based on the doctrine of Tolerance and Catholicity of outlook.
- The educational institutions are discharging a public duty that requires the duty to act fairly.
- The nature of the duty of the educational institutions is discussed by analyzing Article 226 of the Constitution of India and held that these educational institutions discharge public duties irrespective of institutions receiving aid or not.
- The Court has quoted relevant extract from the National policy of education which highlighted that commercialization of education must be prevented but it is also impossible to avoid private participation which necessitates the need for strict norms and regulations like:
1. Evolving long term planning and management goals in consonance with the country’s developmental and manpower needs.
2. Decentralisation and spirit of autonomy in case of educational institutions.
3. Importance to participation by people and non-governmental organizations.
4. Participation of more women in such planning and management.
5. Establishing the principle of accountability in relation to the objectives and norms.
- More research and development measures must be taken by the beneficiary communities to maintain school buildings and resources.
- Regulatory measures must also pinpoint that the private educational institutions are administered with minimum standards and facilities. Admission must be made equally and available to all sects of people where special treatment can be given to weaker sections of the society. The norms of admission must be pre-lined, objective and transparent. If a public utility like electricity is controlled, then the private educational institutions must also be regulated.
- Education cannot be made available absolutely free and it cannot be made to run only on charitable basis. But it is true that whenever trusts are made for advancement of education, it was held to be charitable purpose. It is also enjoying benefits under Income Tax Act, 1961.
- It is also pertinent to understand the nature of the company or trust by keen observation of the objects of the trust or analysing the Articles of Association and memorandum of Association to understand the aim and objectives of the particular institutions. Then it must be read in consonance with the norms and regulations set by the government in administering the educational institutions. Here the Hon’ble Apex Court has highlighted the need to understand the nature of every private educational institution.
- Right to education is made implicit part of Article 21 of Constitution of India which has to be read and interpreted in light of Articles of Directive Principles of State Policy.
- Articles 41, 45 and 46 guides that education forms an important part of life which says that State within its economic capacity and development make effective provisions for securing the right to work, right to education and public assistance in cases of unemployment, sickness, old age and disablement; State must endeavour to provide free and compulsory education for children till the age of fourteen; State shall promote the weaker sections of the society both in terms of education and economy which protects them from social injustice and all forms of social exploitation. Thus these three articles help us determine the content and parameters of right to education.
- The right of conferment of degree is given only to the Universities established under the Central Act, State Act or provincial Act.
- Comparison has been made among Indian Medical Council Act, 1956, All India Council for Technical Education, 1987 and University Grants Commission Act, 1955 where the councils established by the governments are having the power to set up rules, norms and qualifications required for a particular degree.
- Thus imparting education cannot be considered as commerce and the previous precedents have not mentioned providing education as a trade or business or occupation.
- All the four state enactments are based on the main principle that the public function must be regulated by the norms and regulations set by the government. No private institution is allowed to provide degree on their own without approval, for recognition and affiliation, the institutions are bound to follow the norms. Moreover, the educational institutions are restricted from levying capitation fee which will convert the institutions into cost based education institutions. Under the Acts, guidelines and Schemes, the “competent Authority” and “appropriate authority” are said to be government which again confirms that educational institutions must adhere to the rules of government.
- There was a need for thorough examination of articles of the directive principles of State Policy. It was contended that Article 37 says that the Directive Principles of State Policies under Part IV of the Constitution are not enforceable. Thus the ‘state endeavour’ to grant children free and compulsory education under Article 45 is also not enforceable. Notwithstanding this when these principles are made part of Fundamental rights under Article 21 of the constitution of India, also these policies are not enforceable. There has to be a thorough examination of the words used as Article 49 puts an obligation on the government whereas, Article 45 only states that state must endeavour, which differentiates the role of the State.
- Considering the financial capacity of the Court, the Mohini Jain v. State of Karnataka, can be referred to a larger Constitutional bench.
- Another indirect issue that is taken into consideration is how to put an end to the evil of capitation fee?
- Article 21 was not given a positive meaning because the great concepts like liberty will undergo day to day change and political, social en economic changes essential the recognition of new rights and the law which is required to meet the growing demand of the society. Moreover, the Constitution drafters were aware that only a stagnant society will remain unchanged.
- Education is enlightment and it is what gives dignity to one person.
- The court also criticized the non implementation of Article 14. The court said that I would become a pious wish and fond hope if the primary education was not provided even after 43 years of independence. If the article reverberates with life and articulate with meaning then the court must intervene and settle the dispute and one such issue is the education.
- The higher education calls for heavy burden on national economic resources and it has to be necessarily limited in depending upon economic and social circumstances. Therefore the higher education is not absolute or immediate by relative or progressive. But it is the state duty and endeavour to give primary education and the time to implement the same was lapsed a long ago.
- Depending upon a statute, an activity can be defined as occupation or business. It cannot be contended that establishment of an educational institution would be a business but not a trade or profession. Teaching is a profession which is totally different from the establishment of an educational institution. Even it can fall under the category of occupation, if it is not obtaining any recognition from state or affiliation from University.
- It is the motive of the Central government to have voluntary and private participation in the medicine sector pertaining to education which will substantially reduce the cost expenses subjective to certain norms and regulations.
- Steps has to be taken to avoid the colleges which provide very less educational expertise, conducting classes under thatched huts, with no equipment with the only intent to reap money. They are considered as weeds in the society. Moreover, they are aimed at acquiring professional degree which acts as the passport to continue a profession. The Hon’ble bench considers them as pirates in the high seas of education.
- The bench also expressed its opinion on the stability of Article 45 which is the only article to set a time limit to an individual’s right. The court also questioned whether the need for fixing the minimal time limit changed after 44 years. But the court concluded by saying that financial and social factors must be considered before State implementing the policies and still India is not in a position to render complete education assistance.
Findings of 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 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 educational 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-Ill of this Judgment.
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 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 continued in Part-Ill 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 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 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 (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 delivered by the court.
From the above analysis it is clear that Article 21 is further expanded to include the right to education. It is also pertinent to note that due importance is given to understand the financial position and administration of private educational institutions. The Bench rendered a conclusive judgment by comparative analysis of judgments rendered by the High Courts of different states pertaining to the issue. It is also commendable to issue directions, guidelines in consonance with the National Education Policy and schemes relating to education. Moreover due importance is given to the practical application of the judgment by demarcating the issue relating to right to education and right to establish an educational institution.
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