Home case analysis Unnikrishnan vs. State of Andhra Pradesh (1993)

Unnikrishnan vs. State of Andhra Pradesh (1993)

September 23, 2024

395

This article is written by Arya Senapati. It attempts to analyse the landmark judgement of Unnikrishnan vs. State of Andhra Pradesh (1993) to extrapolate the factual matrix, legal issues, arguments and points of judgement in this case. It also covers the related legal principles pertaining to constitutional law and other related case laws for a better understanding.

Table of Contents

Introduction

Everyone has heard statements like “he is enrolled into that institution on management quota” or “he got admission through donation” and wondered what such a process of enrollment ensues. Management quotas, donation seats, and private seats are nothing but a capitation fee that a student pays to enroll in a private educational institution to study a course of their choice. The pay is usually higher than that charged by government institutions.

Various cases have dealt with the legality of capitation fees since it goes against the right to education available to all citizens of India. However, on the other hand, the private educational institutions argued each time that every citizen also has a right to establish an educational institution.

Private educational institutions surely require a higher amount of funds for their operation but can such a requirement allow imposition of capitation fee? This question baffled the courts of India for years and ultimately a decision was reached in the matter of Unnikrishnan vs. State of Andhra Pradesh (1993).

Details of the case

Case name: Unni Krishnan, J.P. and Ors. vs. State of Andhra Pradesh and Ors.

Parties involved: Unni Krishnan, J.P. (Petitioner) & State of Andhra Pradesh (Respondent)

Court: Supreme Court of India

Bench:

Hon’ble Chief Justice of India L.M. Sharma;
Hon’ble Justice S.P Bharucha;
Hon’ble Justice S.R. Pandian;
Hon’ble Justice B.P. Jeevan Reddy;
Hon’ble Justice J. S. Mohan.

Date of Judgement: 4th February, 1993

Citation: 1993 AIR 2178, 1993 SCR (1) 594, 1993 (1) SCR 594, (1993) 1 JT 474 (SC).

Background of the case

The legal questions discussed in the case of Unnikrishnan vs. State of Andhra Pradesh (1993) first arose in the case of Miss Mohini Jain vs. State of Karnataka (1992). The primary question is regarding the fundamental right of a citizen of India to receive education for medical, engineering and other professional degree-based courses. The Apex Court did not pay any heed to the question regarding the right to primary education in Article 45 of the Indian Constitution being related to or a part of a fundamental right under Article 21 or not as it was not raised in this case.

In the present case, it was argued that since the judgement of the Mohini Jain case gives a positive finding on the legal question of whether Article 45 is a fundamental right under Article 21, it is necessary to consider the question and its correctness based on the merits but the bench hearing the Unnikrishnan case did not feel the need for such a consideration.

Facts of the case

A complex set of facts remains that led to the case. The case initially emerged from the State of Andhra Pradesh and then led to multiple petitions being filed against many other states of India. Largely, four states were involved in the case.

On 25th May, 1992, the government of Andhra Pradesh issued notifications which invited applications to receive permission for establishing medical, dental and engineering colleges across the state. 8th June, 1992 was set as the last date for receiving such applications. The ones who were applying for medical colleges were asked to deposit a sum of Rs. 1 crore and provide a bank guarantee of another one crore along with substantial evidence of financial capacity of four crores.

A committee was constituted to inspect the land and other liabilities offered by the applicants. The committee subsequently created a set of guidelines and submitted a report which recommended 12 medical colleges and 8 dental colleges. The Chief Minister gave his approval to the recommendations, and a government order was published granting permission to do so. Various writ petitions were filed in the Andhra Pradesh High Court challenging the grant of the order.

The basis for the challenge was that various private engineering colleges operated in the state and up until the academic year of 1992-93, the seats in these private engineering colleges were filled through a common entrance exam based on merit. The management of these institutions held no control or choice over the matter of admission. They were simply allowed to impose a fee higher than that of a government institution for the purpose of admission.

As soon as Section 3A of the Telangana Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983 was introduced on 15th April, 1992, the private engineering colleges demanded that they have the power to admit students to the extent of half of the seats based on their choice with no regards for merit. The admission will simply be on the grounds of them qualifying the entrance exam.

This uproar basically meant that they sought the right to impose as hefty a capitation fee as they wished without any regulation. This created unrest among the students and teachers, who then protested against such admissions.

The government was unable to ignore the extent of the unrest and pressured the private engineering colleges not to make any admissions unless and until clear rules were drafted as per Section 3A. The engineering colleges opposed the order on the grounds that they had already made admissions based on their choice to the extent of 50% of their seats.

These particular admissions led to a series of writ petitions in the Andhra Pradesh High Court. A full bench of the Andhra Pradesh High Court allowed the said writ petitions and declared Section 3A as constitutional. It stated that the admissions made by private engineering colleges to the extent of half of their seats based on their own choice is absolutely illegal.

The High Court further held that the government order that granted permission to 12 medical colleges and 8 dental colleges was invalid in its essence. Considering this decision and the order of the Andhra Pradesh government, the students who were admitted by the management came to protest the decision and filed multiple special leave petitions before the Supreme Court of India.

Similar petitions were filed across many other states in India.

Involvement of other states in the present case

Since the issues involved in the case were national issues, all the states were invited to file representation by the Apex Court. Even though notice was sent to all the states of the nation to appear in the present case, the ones that appeared in the case were the states of Andhra Pradesh, Maharashtra, Tamil Nadu and Karnataka. All the matters present in the Unnikrishnan case were concerned largely with these four states.

Legal issues involved

There were various legal issues pertaining to the right to education which were involved in the present case. The primary legal issues which the Apex Court ruled upon were:

Whether the decision laid out in the case of Mohini Jain is correct based on its merit?
Is the right to education a guaranteed fundamental right that the citizens of India are entitled to by virtue of the Constitution?
Is the idea of charging a capitation fee feasible with the entitlement of the right to education guaranteed to the citizen?
Is the imposition of a capitation fee for getting admission to educational institutions a practice that is arbitrary, unfair, unjust and violative of Article 14 of the Constitution?

Contentions of the party

Petitioners

The petitioners (private educational institutions) contended the following points:

The state has no monopoly over education. Every citizen has a fundamental right to establish and run an educational institution by virtue of Article 19(1)(g) and such a right even covers the establishment of educational institutions which have a motive of generating profit in front of a business. Reasonable restrictions can be imposed on the right just like they are imposed on all other fundamental rights but barring the lawful restrictions, the right is an absolute right.
The real problem is not founded in the establishment of educational institutions which are private in nature but in unnecessary state control. There is a demand for such institutions by people who can afford to study in it and wish to get admitted to their desired courses and therefore the free flow of demand and supply must be maintained.
The venture of an educational institution which is private in nature is not so different from other business ventures and it is irrelevant if there exists a motive for profit or not from these institutions. Wherever there is a profit motive, persons with adequate means will open more schools and colleges and make education accessible to all classes. There are not a large number of people who can philanthropically maintain and manage educational institutions in the current day and age.
If the Apex Court upholds the fact that a person has no right to establish an educational institution as a business venture, then a person should at least have the right to establish and run a self-financed educational institution. Such institutions could be referred to as cost-based educational institutions. That simply implies that these institutions would be free to collect as many fees as they wish from parties who are capable of paying the same so as to enroll their children in desirable courses. Such a sum would not only cover the normal expenditures of running an educational institution but also cover the diversification, expansion and growth costs. The government should not be allowed to have any interference in the fixation of fees in such institutions. The needs of different educational institutions could be different based on the standard of education and the facilities they seek to provide. The government can surely impose a condition that few seats in such self-financed institutions must be reserved for those meritorious students who shall pay the same fees as the government institutions. This condition allows both students with capacity and meritorious students to access education in a streamlined manner.
The judgement in the Mohini Jain case was not correct when it stated that charging any amount which is beyond the prescribed limit of the fee prescribed by the state government is a capitation fee. This proposition creates an impossible situation for private educational institutions to maintain their operations and meet their expenses. The cost of imparting education to medical and engineering students is undoubtedly high and such costs are borne by the government in state institutions but the government creates no subsidies for private educational institutions.
Even if the courts uphold the proposition that educational institutions do not fall under the definition of a trade or a business within the meaning of Article 19(1)(g), it is undoubtedly an occupation within the meaning of the term present in the Article. The mention of all four terms i.e. profession, occupation, trade and business is meant to cover the larger expanse of human activity in the realm of economics. It is not important for the petitioners to point out which expression their activity falls under.
The right to establish educational institutions also arises from Article 30. The framers of the Constitution could not have intended to limit the right to only minorities at the deprivation of majority communities and therefore, such an interpretation can also be upheld.
By merely recognising or affiliating private educational institutions, they do not become instrumentalities or agencies of the state within the meaning of Article 12 of the Indian Constitution and therefore the attributes of state action or function cannot be made applicable to such colleges so as to bring them under the disciplinary purview of Part III of the Constitution. The case becomes different if the institution is on the receiving end of any aid from the state. In such situations, the authority of Article 29(2) comes into the picture but even then it does not oblige institutions to admit students solely on a merit basis but merely allows them to deny admission to anyone on the mentioned grounds.

Respondents

The respondents (various states of India) contended the following points:

The respondents contended that in India, both Hinduism and Islam consider education as a religious duty and it has never been treated as a business or a trade. It has largely been treated as a mission and not a trade. The commercialisation of education goes against the very culture of the nation and does a large disservice to the very fabric of the nation’s policies. The parliament’s intention with the legislation of the University Grants Commissions Act, 1956 was clear as it sought to prevent the commercialisation of education.
It is to be noted that imparting education is one of the most important state functions and this function can be performed by the state either directly or through state instrumentalities like private educational institutions. Whenever the state permits a private organisation or an individual to perform state functions, it is the duty of the state to make sure that one does not get admission or priority based on economic superiority causing detriment to the merit of other students.
The idea of collecting the cost of education is what allows cost-based or self-finance educational institutions to function but such an operation is morally wrong and opposed to the interests of the public. A capitation fee cannot be termed as a non-capitation fee simply because it is charged in the name of running a cost-based or self-financed institution. Such terminologies used to hide capitation fees are simply mere pretences used to charge capitation fees for admission. It leads to an exploitation of a section of society and is largely elitist in nature which goes against the constitutional principles. It creates class bias, and the students belonging to the lower class suffer the brunt.
If for whatever reason the Apex Court holds that a citizen or an individual has the right to establish an educational institution, the right does not entail an additional right to affiliation or recognition from the government. The Apex Court has held before that even a minority educational institution has no right to affiliation or recognition and therefore such a right cannot be conferred upon the majority community or individuals as well. If such a right to establish an educational institution is recognised, it shall then be open to the state or the universities to grant recognition or affiliation and impose necessary conditions deemed fit to maintain the interests of merit, fairness, maintenance of education standards and others. The government will have the choice to impose the condition to mandate such educational institutions to admit students based on merit alone. The state government shall also have the option to withdraw recognition or affiliation from such educational institutions in case of any breach or departure from the conditions imposed on them by the government.
If in any circumstance, the government doesn’t impose such conditions on the private education institutions, such conditions would be implied to be imposed as in such situations, the private educational institutions function as state instrumentalities conducting state action. The very fact that education is a primary public function and heavily interlinked with state processes makes their operation a state action. At the very least, they would be required to conduct themselves fairly in the process of admitting students and recruitment of teachers and non-teaching employees. These types of educational institutions would be bound to not charge any fee which would be higher than that charged by governmental institutions offering the same course. In case of extra finances and expenditures, these institutions must meet them through donations or help from religious and charitable organisations. These institutions cannot be allowed to demand that they collect capitation fees first and then establish the institution. Only the bare minimum operational costs can be charged from students, not the hefty capital costs.

Ratio decidendi of the judgement

The following points were upheld by the Supreme Court of India in the present case:

Every citizen of India has a fundamental right to education which arises from Article 21 but such a right is not an absolute right. Its extent is determined with regard to Article 45 and Article 41. In simpler terms, every citizen has the right to free education till 14 years of age and therefore the right to education depends on the subjective limits of the economic capacity of the state.
Obligations created by Articles 41, 45 and 46 can be discharged by the state either directly or through aiding, recognising and affiliating private educational institutions. Unaided institutions can charge a higher fee.
Every citizen has a right to establish an educational institution but has no right to affiliation or recognition or aid. Without affiliation or recognition, the degree or certificates provided by the institutions hold no value and therefore the right to establish an educational institution is without any substance.
Section 3A of Andhra Pradesh Educational Institutions (Regulation of Admission And Prohibition of Capitation Fee) Act, 1983 was held to be violative of Article 14 and, therefore, unconstitutional and void.
The decision of Mohini Jain was reversed through the decision laid out in the case of Unnikrishnan vs. State of Andhra Pradesh (1993). Higher fees can be charged by private unaided educational institutions. The higher fee limit must be fixed by the government committee and any fee charged above it shall be understood as a capitation fee. Such a capitation fee was prohibited.
Directive principles of state policy and fundamental rights are complementary and supplementary to each other. Even though DPSPs are not justiciable and Fundamental Rights are justiciable, that is the only difference between the both. DPSPs shall aid in interpreting the fundamental rights and vice versa.

Obiter dicta and rationale behind the judgement

The judgement stated that the writ petitions filed by the private educational institutions that intend to impart medical and engineering education challenge the correctness of the decision given by the learned division bench in the case of Miss Mohini Jain vs. the State of Karnataka (1992).

Here, the petitioners were those who ran medical or engineering colleges in the States of Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu. They contended that if the decision in the Mohini Jain case was considered to be right and was then implemented in various state governments, the institutions would be forced to shut their operations and no other alternative would be left for them. The Apex Court, therefore, believed it is important to first ascertain what truly the decision of the Mohini Jain case stated.

Issue 1: Correctness of Mohini Jain case

The state legislature of the Karnataka Government enacted the Karnataka Educational Institution (Prohibition of Capitation Fee) Act, 1984 which intended to curb the evil and mala fide practice of commercialisation of education as it has not helped maintain the standards of education in the state and therefore it was thought to be essential to curb the widespread practice.

A capitation fee was defined as any amount which was paid or directly or indirectly collected in excess of the prescribed fee of an educational institution. Section 3 of the Act prohibited the collection of capitation fees by any educational institution or any person or organisation related to the management of such institution.

Section 5 of the Act states that the state government is competent to regulate the tuition fee or any other fees and deposit that an educational institution may collect or receive for any or all classes of students, through notification.

Section 4 states that the maximum number of students who shall be admitted to a course in a private educational institution and the minimum educational qualifications required for admission shall be decided by the government.

By virtue of the power conferred upon the Government of Karnataka under Section 5 of the Act, the government issued a notification on June 5, 1989 which stated that from the commencement of the academic year of 1989-90, the fees payable in the private medical colleges shall be Rs. 2000 per annum in case of students admitted to the government seats and Rs. 25,000 in case of Karnataka Students and Rs. 60,000 in case of non-Karnataka students.

The case began when Miss Mohini Jain, a non-Karnataka student hailing from Meerut in Uttar Pradesh applied for admission in the M.B.B.S course in a private medical college in Karnataka. The college informed her that she was supposed to pay Rs. 60,000 for the tuition fee of the first year and provide a bank guarantee for the fees payable for the remaining years of the course.

Considering that her parents were not in the right financial condition to pay the demanded amount, she was denied admission. Mohini Jain stated that she was asked to pay a capitation fee of Rs. 4,50,000 for getting admission into the institution but the educational institution denied any such demands being made.

Mohini approached the court under Article 32 and challenged the notification of the Karnataka government requiring separate fees for Karnataka and non-Karnataka students. She prayed for permission to be admitted by paying the same fees as was payable by the Karnataka Students admitted to the Government Seats.

The court considered the legal issues and held that based on the principles set by Articles 21, 38, 39(a), 41 and 45 of the Indian Constitution, the drafters of the Constitution intended it to be mandatory for the state to provide education to all the citizens. It was observed that the objectives which are mentioned in the preamble of the Constitution cannot be fulfilled without education being provided to all the citizens of the state and the dignity of an individual cannot be properly assured without the provision of education.

It was stated that Part III and Part IV of the Indian Constitution are supplementary to each other and the right to education, as envisaged by Article 41, must be turned into a reality to provide full effect to the fundamental rights mentioned in Part III. Without education, fundamental rights cannot be properly enforced or utilised by the citizens.

Based on the capitation fees, the court stated that they were nothing but a mere consideration for receiving admission and facilitating the commercialisation of education. The concept of commercialisation of education has not been envisaged in the Indian Constitution and therefore education cannot be commoditised for sale in India.

Every citizen has a guaranteed right to education under the Indian Constitution and the state is mandated to create educational institutions for all citizens to avail the right. The state is allowed to fulfil the obligation through state-owned or state-recognised educational institutions.

The court also held that the state action in allowing the imposition of capitation fees charged by the educational institutions recognised by the state was an arbitrary act which was violative of Article 14 of the Indian Constitution which guaranteed the right to equality. The imposition of capitation fees leads to severe inequality and bias among people of different economic groups.

Further, the court held that the charging of Rs. 60,000 for admission is equivalent to imposing a capitation fee. It is a form of capitation fee to charge a hefty amount for non-Karnataka students.

The Apex Court was of the view that if the government has fixed Rs. 2000 per annum as the tuition fees for students in government colleges and in private educational institutions with government seats, then the government should also take adequate steps to ensure that none of the private educational institutions charges more than Rs. 2000 per annum for admissions to other students.

As per legal principles, the Apex Court stated that whenever a state government grants permission to a private educational institution to establish a college and approves its curriculum to run a particular course, the private institution is fulfilling functions which are given to the state under the constitution. Based on this rationale, the imposition of Rs. 60,000 per annum for students not belonging to the state of Karnataka is nothing but a capitation fee which cannot be sustained under the law and must be removed.

The writ petition was allowed but admission was denied to Mohini Jain as she had not secured the admission based on merit and the course had already commenced in March-April 1991 but the decision was given in 1992.

The bench dealing with the Unnikrishnan case stated that it was not concerned with the peculiar questions which arose in the previous case but simply the correctness of the Mohini Jain judgement which can be formed into three primary questions which form the legal issues for the present case of Unnikrishnan vs. State of Andhra Pradesh (1993). The first being whether the fundamental right to education is guaranteed by the Constitution of India to all Indian citizens. The second question being whether an Indian citizen has a fundamental right to establish and operate an educational institution under Article 19(1)(g) or any other provision of the Indian Constitution. The final question was whether the grant of permission to establish and run a university imposes an obligation on educational institutions to operate without any bias or arbitrariness when it comes to the admission of students into various courses.

Issue 2: Fundamental right to education under the Indian Constitution

On this legal issue, the Apex Court stated that the right to education is not expressly mentioned as a fundamental right under Part III of the Constitution of India. The court also mentioned that it is not necessary for a fundamental right to be expressly mentioned in the Constitution for it to be treated and effectuated as a fundamental right.

In the case of Express Newspapers (Private) Ltd. vs. Union of India (1959), the Apex Court held that the freedom of the press is a fundamental right arising from the right to freedom of speech and expression.

Moreover, a distinct set of rights have been drawn from Article 21 of the Constitution which includes the right to free legal aid and speedy trial, the right to adequate means of livelihood, the right to dignity and privacy, the right to health and the right to a pollution-free environment amongst many others. Article 21 is an umbrella for other rights that are not explicitly mentioned under the fundamental rights but are equally crucial in maintaining the right to life and personal liberty. This includes rights such as freedom of the press, right to adequate means of livelihood, right to education, etc.

While the Article is phrased in a negative manner, it was intended to have a broader interpretation to include a variety of rights which constitute the true realisation of personal liberties. While Article 19(1) deals with a particular set of rights necessary for human life, the residual rights which are not mentioned in Article 19 are covered by the broader interpretation of “personal liberty” in Article 21. This interpretation has been sustained in law for quite a long period of time.

The Apex Court then referred to the judgement of Olga Tellis vs. Bombay Municipal Corporation (1985) and stated that the interpretation of the term “life” has to be expansive and broad to truly fulfil the objectives of Article 21 in the scheme of Constitutional principles. The Apex Court referred to the part of the judgement which stated that the wings of the right to life which is guaranteed by Article 21 cover a lot of aspects. It simply does not perceive the physical existence of life which can be taken away through a death sentence or any other procedure established by law.

The physical and literal meaning of life is merely one aspect of the right to life but other rights arising from it such as the right to livelihood also form an equally important part of the fundamental right. Anything that makes life and living sustainable and is necessary for the continuation of a meaningful life of dignity must be considered to be a part of the right to life in an integral manner. When a state is obliged to secure adequate means of livelihood for its citizens, it would be unfair to exclude the same right from the realm of fundamental rights, especially the right to life.

The Apex Court further referred to the case of Bandhua Mukti Morcha vs. Union of India (1984) to substantiate how precedents show that fundamental rights especially Article 21 must be construed through the lens of DPSP. The Apex Court reiterates the part of the judgement which states that the right to live a life of human dignity is ingrained in Article 21 and derives its essence from DPSPs especially Articles 39 and 41.

Based on these decisions, the Supreme Court reached the conclusion that the judiciary has been constantly upholding the principle that fundamental rights and directive principles of state policies are supplementary and complementary to each other. The courts have also been laying emphasis on the fact that the fundamental rights in Part III of the Constitution must be interpreted with regard to the preamble and the directive principles of state policies.

The Apex Court notes that even though the judiciary initially hesitates to place significant emphasis on the importance of Part IV of the Constitution i.e. the directive principles of state policies, the hesitation has been done away with.

Even though the case of State of Madras vs. Champakam Dorairajan (1951) held that fundamental rights hold a preeminent position as compared to directive principles of state policies, this understanding has taken a major shift ever since and that has been a change in the perception of the courts in his matter which allows for an interplay of fundamental rights and directive principles of state policy.

The Apex Court refers to the view taken in the case of Hanif vs. State of Bihar (1959) which states that directive principles of state policies cannot be completely ignored while interpreting fundamental rights but rather the courts must provide a harmonious construction to both of these principles.

Based on all these cases and principles, the Supreme Court reached the view that both Parts III and IV of the Indian Constitution are supplementary and complementary to each other and fundamental rights are a means to achieve the goals indicated in Part IV of the Constitution. It was also held that fundamental rights must be understood through the lens of directive principles of state policy. The court stated that it wanted to approach the first legal issue with this principle in mind.

Article 21 and the right to education

In the Bandhua Mukti Morcha case, the court held that the right to life as guaranteed by Article 21 encompasses educational facilities within its expansive purview. Considering the ultimate importance of education in the life of an individual and the nation at large, the Apex Court agreed to the reasoning of the judgement made in the Bandhua Mukti Morcha case that the right to education arises from the right to life as mentioned in Article 21. The right to education is of unignorable importance in an individual’s life, and it has been recognised in India and the world for decades.

The Apex Court stated that in the decision of the Mohini Jain case, the importance of education was duly and righteously stressed. The court agreed to the observation made in the Mohini Jain case that without education, it is impossible to achieve the objectives which are set forth by the preamble of the Constitution. The court took note of the fact that the right to education is mentioned thrice in Part IV and twice in Part III of the Indian Constitution. This fact in itself showed the importance given to education by the framers of the Indian Constitution.

The petitioners contended that when the state, by force of law, deprives a person of his or her right to education, only then can Article 21 be brought into discussion. The Apex Court stated that this particular contention was made only to create confusion regarding the actual issue. The first legal issue was whether Article 21 provides the right to education, and then only the question regarding the state taking away the right emerged.

The mere fact that the state is not depriving a person of their right to education does not entail that the right to education is excluded from the right to life. The Apex Court stated that the interpretation of a right does not depend on the perception of threat towards it. The constituents of the right to life therefore do not depend on the existence of any circumstance which might lead to its deprivation. The very essence of upholding the right to education as an important aspect of the right to life is that the state cannot deprive the right without a procedure established by law.

The Supreme Court further stated that the decision in the Mohini Jain case was correct regarding the fact that the right to education arises directly from the right to life. The real question, as per the court, was what was the true extent of the right and what was the level of education that the state must provide to every individual.

In simpler terms, the real issue as per the Apex Court was that citizens demand the state to provide for an adequate number of medical and engineering colleges and other educational institutions to fulfil their educational needs. With regard to the said issue, the judgement of the Mohini Jain case states that citizens can demand such a thing but in the instant matter, the court denies upholding such a broad interpretation.

As per the Apex Court, the right to education which arises from the right to life and personal liberty under Article 21 must be interpreted in the light of Part IV of the Constitution, several provisions of which deal with the right to education as has been mentioned above.

Article 41 states that the state is obliged to make provisions to secure the right to work, education and public assistance in case of unemployment, old age and sickness.

Article 45 states that the state shall take all necessary endeavours to provide free and compulsory education to all children till the age of 14.

Article 46 states that children belonging to weaker sections of society also have the right to education.

These three articles in particular are concerned with the goal of achieving universal education. In the context of Articles 45 and 41, the right to education means that every child or citizen of India must receive free and compulsory education till 14 years of age and after the child or citizen completes 14 years of age, his right to education functions within the limits of the economic capacity of the state.

Based on these factors, the Apex Court asks the simple question that even after the passage of such a long time after the commencement of the Constitution, can the same time limit fixed by the article be retained or should it be enlarged.

The Supreme Court stated that the state must honour the command of Article 45 and make it a reality before the end of this century. The court further states that this promise could be fulfilled not only through state schools but also through recognising and aiding voluntary non-governmental organisations that are ready to impart free education to children.

The Apex Court further clarified that in this judgement in particular, the bench does not intend to make any remarks on such private schools or private educational institutions except for professional colleges, as the discussion surrounding the case was based on the principles laid down in Mohini Jain judgement and the challenges were made to those principles only.

At this point of the judgement, the Supreme Court refers to the additional affidavit filed by the Union of India which dealt with the status of primary and upper primary education in India. The affidavit stated that there has been a significant increase in the enrollment rates in primary schools which has made India one of the largest educational systems in the world.

On the provision of free education, the affidavit stated that to increase enrollment, all state governments abolished tuition fees in government schools which were run by local bodies and private aided institutions were also mostly free in such states but coming to private unaided schools which made up to 4% of the total elementary schools in the country, a fee was charged in such schools.

Other educational costs like books, school uniforms, bags and transportation were not borne by States except in certain cases where help was provided to children of poor families or those belonging to Scheduled Castes and Scheduled Tribe backgrounds. The reason that the affidavit gave for schools not being able to bear the additional expenses was that 96% of the expenditure of the school went towards giving the salaries of teaching and non-teaching staff.

Coming to the provision for compulsory education the affidavit stated that 14 states and 4 Union Territories have legislated policies for providing compulsory education to all but certain social and economic obstructions have prevented all the students from enrolling in schools and imposing the rules and regulations.

The affidavit also mentioned various steps taken by the central and the state governments to further the objectives of the National Education Policy through measures like Operation Blackboard (a government initiative to provide basic facilities to government schools) and how such initiatives increased primary education levels across the nation.

Right to education after 14 years of age

Coming to the right to education after 14 years of age, the Supreme Court stated that the right to education means that every citizen has the right to demand the state to provide educational facilities to them but with the condition that it should be within the economic capacity and development limits.

The court clarified that the statement does not intend to transfer Article 41 from Part IV to Part III of the Constitution but it simply relied on Article 41 to prove that the right to education arises from Article 21 i.e. right to life. The court does not believe that any state would hold on to the opinion that it cannot and would not provide education to people within the limits of its economic capacity and development but such limits have always functioned within the subjective satisfaction of the state governments.

The right to free education is only available to children till the age of 14 years and hence the state is obligated to provide education within its economic and development limits after 14 years. The Apex Court held this proposition valid and stated that this proposition is not new, it was previously stated in the case of Francis C Mullin vs. Administrator, Union Territory of Delhi (1981) wherein the Supreme Court had previously stated that various rights arise from right to life like the right to nutrition, human dignity, clothing, shelter, reading and writing facilities, expression, free moving etc but these rights will always depend on the extent of the development of the nation.

The Apex Court also stated that merely because a reference was made to directive principles to interpret the right of education flowing from Article 21, it does not mean that each and every obligation of the state mentioned in Part IV becomes a right arising from Article 21 in that regard.

Issue 3: Right of individuals to establish and run private educational institutions

Before delving into this legal issue, the Apex Court analysed various relevant enactments which dealt with capitation fees, affiliation and recognition to various types of government as well as private educational institutions connected to the instant case.

University Grant Commission Act, 1956

The first statute referred to by the Apex Court was the University Grants Commission Act, 1956. This Act was legislated by the parliament to provide for the coordination and maintenance of standards of education in various universities in India and it also led to the creation of the University Grants Commission (UGC).

In the Act, affiliation is defined as relation to a college or recognition of a college or association with a college and admission as well as the connections to the privileges of a university. The commission is empowered by the Act to regulate the fees which colleges affiliated with universities can charge.

Indian Medical Council Act, 1956

The Indian Medical Council Act, 1956 was legislated by the government for reconstruction of the Medical Council of India and for the purpose of maintaining a medical register for India and other related matters. In the said legislation, the term “approved institution” was defined as a hospital, a health centre or any institution which has recognition from a university as an institution in which a person can undergo required medical training before getting awarded a medical qualification.

All India Council for Technical Education Act, 1987

The Act was enacted by the centre to establish the All India Council for Technical Education (hereinafter referred to as ‘AICTE’) so as to facilitate coordination, development and planning of technical education across the nation and for the promotion of quality and maintenance of education standards in technical courses across India.

Section 3 of the Act establishes the council and Section 10 mentions the various functions of the council. The AICTE council is responsible for fixing norms and guidelines regarding tuition fees and other charges levied on students availing technical education, providing approval to new technical institutions and taking important measures to prevent the commercialisation of education.

The Supreme Court observed that there was no express provision in the Act which stated that no new technical education can be established without the permission of the AICTE but considering the vast power granted to AICTE by Section 10, it can be implied that the council can exercise such a power even without its express mention. As per the Apex Court, the council held the power to prevent new courses, faculties and classes even in existing institutions.

The Apex Court took note of the fact that while granting permissions to new institutions, the council makes them aware that they should not only abide by the rules and regulations framed by the AICTE but also prevent themselves from charging any capitation fees from students in any manner. The council takes strict actions such as withdrawal of recognition or affiliation in cases where the institution charges a capitation fee from students for purposes of admission.

Principles regarding the right to establish a private education

In the next portion of the judgement, the Apex Court took note of the ground reality in matters of education. It observed that even though the second highest budgeted expenditure is done on the sector of education, the circumstances seem inadequate and insufficient to meet the needs of citizens.

The Supreme Court took note of the fact that many global countries spend almost 6-7% of their Gross National Product (GNP) on education but India merely spends 3% on their education sector. Out of the expenditure dedicated towards education, almost 70-80% went towards paying the salaries of teachers and other staff.

There exists a lack of self-discipline and commitment towards maintaining a quality and standard of education in government schools and colleges. Such a degradation in standards led to the creation of private education institutions which met the needs of the public and provided for quality education.

The state lacked the position to devote more resources towards the constantly growing demand for quality education and therefore private educational institutions filled the gap. The Apex Court stated that the Central Government was incapable of providing additional resources for medical and technical education and was also unable to aid private educational institutions financially and that led to the Central government approving private educational institutions and making them conform to established guidelines and norms but the government cannot force private educational institutions to charge the same fee as is charged by governmental education.

Based on all these considerations, the Apex Court submitted that:

Granting unconditional and unqualified rights to education at all levels to all individuals involves a constitutional duty for the state to establish educational institutions by itself or through other state instrumentalities. This proposition is not guaranteed by the Constitution as it is unrealistic and impractical.
By providing recognition to private educational institutions, the state does not have an agency relationship to fulfil its constitutional obligations as there exists no circumstance for importing the principles of agency in such situations.
The principles provided in the judgement of the Mohini Jain case must be reconsidered.
It is unrealistic and foolish to prevent private institutions from providing education, especially higher education. The pirate institutions must be encouraged to collect the necessary resources for maintaining standards of education and contributing towards achieving constitutional goals.
Regulatory controls must be increased to prevent private educational institutions from commercialising education. Minimum standards of education and educational facilities must be maintained through effective regulations.
Admissions must be given based on merit and seats must be reserved for weaker sections of the society who are deserving of affirmative action. Admission norms must be pre-determined and clear.

It was stated by the Apex Court that private educational institutions are necessary and the government alone cannot maintain the rising demand for higher education, especially medical and technical education, without the aid of private institutions. Even though education is a primary function of the state, it cannot exercise a monopoly over the subject.

Private educational institutions can be both aided and unaided. The government can provide either complete aid or a part of the aid required for operations. For aided institutions, rules framed by the government or affiliation authorities must be strictly followed, especially in matters of admission of students and recruitment of staff. Aided institutions would not be allowed to charge a fee higher than that prescribed by the government. In the case of un-aided institutes, they cannot be forced to charge the same fee as that of governmental institutions. They can voluntarily choose to charge the same prescription but they are free to charge higher fees to meet their cost of imparting education. These institutions shall function on the concept of self-financed and cost-based education institutions.

Such institutions also pose the question of who shall determine the actual cost of education and how it can be regulated. The Supreme Court noted that the cost of education can vary from institution to institution and a government authority must be designated for ascertaining such costs.

The question which was held bothersome as per the Apex Court was that the constitutional philosophy and the intentions of the parliament and state legislatures make it clear that commercialisation of education stands against the very interests of public policy but how can private institutions be allowed to function without commercialising education. To answer this question, the Apex Court moved to the next legal issue.

Issue 4: Fundamental right to establish an educational institution

The Apex Court takes note of the fact that Article 19(1)(g) of the Indian constitution provides all citizens a right to practise any profession, occupation, trade or business. Clause 6 of the Article states that nothing in the Article shall prevent the operation of law in force in India insofar as it imposes or prevents the state from drafting a law to impose reasonable restrictions on the exercise of such a right for the general public interest and nothing shall prevent the state from making laws relating to professional or technical qualifications required for practising certain professions, occupation, trade and business.

The Apex Court stated that it doesn’t intend to make any remarks on whether the right to establish an education institution is an occupation or not but the court was sure of the fact that education cannot be considered as a trade, business or profession as all these three terms carry a motive of profit with it and education cannot be treated as a commerce item in the nation.

By integrating education into the folds of commerce, the courts would have to go against the social ethos and philosophies of the general public and society. Education has always been a religious duty in India. The Apex Court noted that education is a charitable activity and not a trade or a business. Education is a mission and a vocation rather than being a profession or a business.

The Supreme Court noted that the intention of the parliament was clear on the fact that the commercialisation of education is a vice to society and must be prevented at all costs. Even the state legislatures of Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu were expressive of their intention of eradicating and presenting commercialisation of education in the preambles of their respective Acts which were brought into question in this particular case.

The Apex Court upheld the proposition put forward in the case of The State of Bombay vs. R.M.D. Chamarbaugwala (1957), in which it was stated that education cannot be termed as a trade or a business in India. Education cannot be interpreted as commerce and the petitioners cannot rely on the broader meaning of the term “occupation” in their contentions to bring education into the folds of profit-yielding commerce.

The Apex Court then moved forward towards considering the decisions referred by the petitioners in their contentions to support their argument that the right to establish an educational institution manifests from Article 19(1)(g).

The first decision cited by the petitioners was the decision of Bharat Sevashram Sangh vs. State of Gujarat (1986), wherein it was held that Section 33 of the Gujarat Secondary Education Act, 1973 empowered the government to take over the management of an educational institution for five years or less. In specific circumstances, the aforesaid Section was held to be constitutional as it was in the interests of the general public and not a violation of Article 19(1)(g).

Based on this decision, the Supreme Court stated that this decision was irrelevant to the present case as it did not say anything about education being a profession, occupation, trade or business. Next, the petitioners had placed their reliance on the decision of Bangalore Water Supply and Sewerage Board vs. R. Rajappa &Ors. (1978) wherein it was held that educational institutions would fall under the ambit of the term “industry”.

The Apex Court stated that such a statement was made in a different context and therefore had no applicability in the present case. The next case cited by the petitioners was the case of State of Maharashtra vs. Lok Shikshan Sanstha (1971) wherein it was stated that during the period of an emergency, the right to establish an educational education was also barred along with other fundamental rights. The court noted that the decision was irrelevant to the present case as the decision did not mention if such a right is available generally or not to the petitioners.

The Apex Court stated again that the activity of imparting education cannot be termed as a profession within the meaning of Article 19(1)(g). Establishing educational institutions can never be brought into the purview of “practising any profession” as has been envisaged in Article 19(1)(g).

Teaching can be considered as a profession but establishing an education institution is not a profession. On the instant matter, the Supreme Court stated that every individual or a body of persons possesses the right to establish an educational institution but such a right is not an absolute right and is subject to reasonable restrictions as well as laws made by the state for the interest of the public.

On the contrary, the Apex Court also clarified that the right to establish an educational institution is not accompanied by the right to affiliation or recognition. The court referred to the case of The Ahmedabad St. Xaviers College vs. State of Gujarat (1974) wherein it was held by a nine-judge bench that the right to affiliation does not exist in the Indian context. The court also stated that the right to establish and administer an educational institution is meaningless without the right to affiliation or recognition.

Recognition could be granted by the government or any authority recognised by the government. Affiliation can be granted by a university or other academic bodies empowered to provide affiliation to various educational institutions.

In essence, the Apex Court stated that every individual or body has the right to establish an education institution, recruit staff, build infrastructure, admit students and teach various courses but they cannot demand that their degrees or certificates be recognised by the state. No institution can operate substantially without receiving recognition or affiliation from appropriate authorities or the government itself.

Without having any recognition or affiliation, the certificates and degrees provided by such educational institutions would be invalid and of no use to the students. No one would be interested in joining such an educational institution if the end result is a degree with no value or recognition.

Even the University Grants Commission Act, 1956 clearly mentions that no other institution shall be capable of awarding a degree other than a university and that is exactly why private educational institutions seek affiliation or recognition from universities. The process remains simple wherein students are trained in private educational institutions for the exams conducted by the universities that institutions are affiliated to. If the student qualifies the examinations conducted by the university then they are awarded with a degree from the university.

The educational institutions adhere to the syllabus set by the university and have the same courses of study while following similar modes of instruction and training. These private educational institutions, even though affiliated or recognised, do not award their own degree but rather merely train students for university examinations.

Therefore, the Apex Court noted the fact that private educational institutions merely supplement the state in its state function of imparting education. They perform an allied activity and not a distinct or separate activity independent of the state. Therefore, they cannot be said to be performing a business or a trade.

The state imposes certain rules and regulations while granting affiliation or recognition. The state is bound by Articles 14 and 15 of the Indian Constitution to provide recognition or affiliation in a fair, arbitrary and reasonable manner. Therefore, it would be wrong on the part of the state to grant recognition to private educational institutions without imposing conditions on relevant stakeholders.

If the state grants affiliation without imposing conditions, it would be a constitutional violation of its duties and obligations which it is bound to by virtue of Part III of the Constitution. The general principle which states that whatever rights, obligations, duties and rules apply to the primary state function must also apply to the supplementary activity was upheld by the Apex Court in this matter. The state can not claim immunity from such obligations and neither can it confer such immunity on those performing such supplementary activities.

Based on this notion, the Apex Court developed a scheme which every authority that grants recognition or affiliation must follow. The Scheme was based on the positive parts of various state enactments which were discussed in this judgement. The primary concept which ran through the scheme was intended to eradicate the management’s discretion in matters of admission to the institution. The discretion led to multiple complications and was at the root of the problems like commercialisation of education.

The Apex Court stated that a capitation fee implies demanding an amount which is above what is permitted by law and such is the definition provided in all the state enactments. The Apex Court stated that there must be an effort to create a situation where there is no possibility for the management or anyone acting on their behalf to demand or collect an amount beyond the permissible limit.

The Apex Court clarified that charging the permitted fee by private educational institutions which is bound to be higher than the fees charged by similar governmental institutions cannot be termed as capitation fees. All the state enactments recognise the need to charge higher fees by private educational institutions but they merely seem to regulate fees that can be charged by them which is what is referred to as the permitted fees and bar them from collecting anything above the permitted level which is what is referred to as capitation fees.

Scheme/Guidelines for private educational institutions as per SC

The scheme developed by the Supreme Court of India was in the nature of guidelines which could be recognised by appropriate government and affiliating authorities while imposing conditions. The scheme stated that:

Professional colleges would be permitted to be established and managed only by a registered society, public trust or religious and charitable body. No individual, firm, company or other body shall be allowed to do so. Existing educational institutions which do not comply with such norms were asked to comply within six months.
A minimum of 50% of seats in all professional colleges were to be filled by government or university nominees and shall be referred to as free seats. Students chosen based on merit were to be admitted to such seats and the criteria were to be decided by admitting authorities. The remaining 50% of the seats were to be called as payment calls which were to be filled by candidates ready to pay prescribed fees. No reservation of management quota was allowed. Criteria of eligibility shall be the same for both the seats and the only exception shall be the willingness to pay higher fees. Management of professional colleges was not allowed to impose any other eligibility criteria for both types of seats.
The number of seats in a professional college shall be fixed by appropriate authorities and it cannot be increased without permission of such authority.
No call for applications for admission could be made separately from the university. Only competent authority can make a call for admission.
Every professional college must submit the recommended fee structure to the appropriate authority for approval and the fee must fall within the ceiling limit prescribed by the authority.
Every state government must constitute a committee to fix the ceiling on fees chargeable by professional colleges.

The Scheme was made applicable from the academic years 1993-94.

Significance of the case

The decision in the case remains quite comprehensive as it dealt with matters pertaining to various states of India, many significant laws and interpretations of significant constitutional provisions and principles. It primarily recognised the existence of the right to education and the obligation of the state to provide free and compulsory education to all its citizens till the age of 14 years.

Beyond the age of 14 years, the state’s obligation is dependent on its economic means and development. It also overturned principles set forth by a previous landmark decision given by the Apex Court in the case of Miss Mohini Jain vs. State of Karnataka (1992). As a result of this decision, the 86th Constitutional Amendment Act, 2002 was passed which resulted in the inclusion of Article 21A which explicitly guaranteed the right to education to all Indian citizens.

This decision also laid down the principle that fundamental rights and directive principles of state policies supplement each other. Therefore, this decision holds utmost significance in the Indian legal system as is a valuable precedent.

Conclusion

The matter served as a landmark judgement creating guiding principles regarding the right to education and the right to establish educational institutions. The text of the judgement, however comprehensive, upholds the national policy which states that the commercialisation of education is against the morals and interests of the public. It recognises the importance of education while also recognising the significance of the state’s obligation towards imparting education.

Frequently Asked Questions (FAQs)

Which fundamental rights were recognised by the decision of Unnikrishnan vs. State of Andhra Pradesh?

The judgement recognised a fundamental right to education with certain limitations and a fundamental right to establish an educational institution without a right that guarantees affiliation or recognition for the said institution.

What are the limitations imposed on the right to education?

The Supreme Court of India held that every citizen of India has a right to free education till 14 years of age and beyond that age, the right is subject to the economic capacity and development of the state.

What is the definition of capitation fees as per the Supreme Court of India?

The Supreme Court recognised that unaided private educational institutions need higher fees to meet their expenditure and such a fee shall be fixed by a committee but any amount charged beyond the prescribed fee set by the committee shall be termed as capitation fees.

Is imparting education an occupation, trade, business or profession under Article 19(1)(g)?

As per the Supreme Court ruling, imparting education falls under none of those terms under Article 19(1)(g) as a profit motive cannot be attached to imparting education.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity