UNNI KRISHNAN, J.P. AND ORS. Etc. irrc v. STATE OF ANDHRA PRADESH AND ORS. ETC. ETC. "

A UNNI KRISHNAN, J.P. AND ORS. Etc. irrc v. ~ STATE OF ANDHRA PRADESH AND ORS. ETC. ETC. " FEBRUARY 4, 1993

B

4_- Constitution of India, 1950:

D Article 21-Right to Education-Whether implicit under tlie Ar- ticle-Whether flows from right to life and personal liberty-Extent' and con- tent of the right.

Parts JU and IV-Fundamental Rights and Directive Principia-- Whether complementary to each other-Whether a right could be f'eCognised E as a fundamental right even though not expressly mentioned. ---( - Articles 14, 15, 21, 41, 45 and 46--l'rivate unaided recognised affiliated educational insti"'tions running professional courses -lilui engineering and medic_al courses-Whether entitled to charge a fee higher than that charged by Government instituti~eld: Entitled to charge a higher fee but such a fee IF cannot exceed the ceiling fixed in this reganJ--However, commerrialisation of education riot pennissibl~apitation fee-Meaning of. ,...-- - - Whether private aided recogniSed/affiliated educational institutions governed by rules and regulations framed by GovP.mment in matters of admission of students and fee chargeable as also recruitment and conditions of service etc., vf teachers and staff.

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Admission and chatging of capitation fees in private unaided/Oided recognised/affiliated educational institution conducting professional courses B sucli as medical and engineering courses--Scheme framed by Coun eliminat- ing discretion of management in admissions in and fees payable in such institutions and substituting merit of the students as the "Sole criterion.

Atticle 12-l'rivate institution supplementing State function viz., impal1- C ing education--Whether an instnJmentality of State-Wheilier public duty pelformed by i4 viz., impatting of education, would make it amenable to PaTt Ill, such as Ame/es 14 and 15.

Attic/es 19(1)(g) and (6)-Rjght to establish and run educational in- stitutions-Whether a fundamentOl right-lmpaTting education-Whether a D commercial activily->'lctivity of establishing an education institution-- Whether a professiort-Words . 'Profession', 'Occupation', 'Trade' and 'Business'-Meaning of.

Attic/es 12, 14, 15, 19(1)(g), 21, 30, 41, 45 and 46--Whether private educational institutions have a fundamental right to recognition/affilia- E tiort-Whether such a right can be inferred by reading into Attic/e 19(1) (g) a right in the nature of Attic/e 30.

Anicles 29 and 3<>-Rights conferred on minorities in a positive way-Whether negate the assumption of such rights by other citizens. F A.P. Educational Institutions (Regulation of Admission and Prohibi- tion of Capitation Fee) Ac4 1983:

Section 3-A-Power to grant admission to students who qualified in entrance/qualifying examination irrespective of their ranking in the examina- G lion and to charge any amount in addition to tuition fee-iVhether violall"ve of Atticle 14 of the Constitution.

Kamataka Educational Institutions (Prohibition of Capitation Fee) Ac4 .1984/Maharrµhtra Educatlbnal Institutions (Prohibition of Capitation Fee) Ac4 1987/Tamil Nadu Educational Institutions (Prohibition of Callee- H

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In the writ petitions filed before this Court, the correctness of the decision of this Court in the case of Mohini Jain v. State of Kamataka and B Others, [1992) 3 SCC p. 666 was challenged by private educational institu. tions, engaged in or proposing to engage in imparting medical and en- gineering education in the States of Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu. ~ -

C In Mohini Jain's case, this Court had held, inter alia, 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 p_rivate edu~tional institutions, it created an agency to fulfil its obligation under the Constitution, that charging capitation fee in consideration of admission to educational in- stitutions, was a patent denial or a citizen's right to education under the Constitution and that the State action iu 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 Govern- ment permitted a private medical college to be set up and recognised its curriculum and degrees, then the said college was performing a function . 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 capitiition fee.

The aforesaid decision was followed by the Full Bench of the A.P. High Court in Kranti Parishad v. NJ.· Reddy, (1992] 3 ALT 99 while allowing the writ petitions filed before it challenging the permission granted by the State Government for the establishment of private Medical G 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, includ- ing the State, filed Special Leave Petitions against the High Court's judgment. Besides several writ petitions questioning the correctness of the H decision of this Court in Mohini Jain's case also were filed.

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The validity of the State enactments of Karnataka, Tamil Nadu and A 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 estab· lish 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 estab- lishment of an educational institution with a profit motive i.e., as a bu"S°iness 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 estab- lishment 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 e.g., 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 iJ!stitutlon 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 t!l a person to collect amounts from willing parties and establish an institu· !ion to educate such persons or their childreu, as the case may be; the quantum of the fees to be charged in such institution should be left to the concerned lnsti.tution 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 r 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 institu· G !ions; (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 in· stltutions to survive if they were compelled to charge only that fee as was H

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A charged in Governmental institntions; the cost of educating an engineer- ing or a medical graduate was very high; all that cost was borne by the State in Governmental Colleges; since the State was not subsidising the private educational institutions, these institutions had to find their own finances, and that could come only from the students; (f) even if the right to establish an educational institution was not trade or business within B 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 estab- lish private educational institutions- at any rate, self-financing/cost-based c 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 com- munity, religious or linguistic) arose by necessary implication from Article 30; the Constitution could not have intended to confine the said right only D to minorities and deprive the majority communities therefrom; (b) 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 institution.s which might 11!' established for achieving certain specified purposes viz., to cater to the needs of a par· E ticular region or a district, or to educate children of members or a pai1icular community, (i) by virtue of mere recognition and/or atllllalion "· __, these private educational institutions did not become instrumentalities or the State within the meaning of Article U of the Constitution; the concept of State action could not be extended to those colleges so as to subject F them to the discipline of Part Ill; it might be a different matter if 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 Gblige the institution to admit Llie students exd11sive!y on the basis of merit • but Gnly not to deny admission to anyone fin 8!>Y cf the. grounds m~ntioned therein, and (j) that •.\i'!ic!e 21 was lieghti>e iii char· G acter and it merely declared that !IO person should be deprived of his life or personal liberty except according to the procedure establish£<! by law, and since the State was not depriving the respondents-students of their right to education, Article 21 was not attracted.

H On behalf of the respondents and the Indian Medical Council and 1

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All India Council ror Technical Education It was contended that; (a) A Imparting or education had always been recognised from times Im· memorial BS the religious duty and also BS B Charitable object, and never as a trade or business, it was a mission and not a trade, and commer· dallsatlon or education bad always been looked upon with dis.favour; tbe Parliament expressed its Intention by enacting in 1956 the University B · Grants Commission Act which specified the prevention of commercialisa· tlon ohducation as one of the duties of the University Grants Commls· slon, which Intention bad also been expressed by several enactments made by the Parliament aiid State Legislatures since then; (b) imparting or education was the most Important function of the State which duty might be discharged 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 no one got an admission or an advantage on acc•mnt of his economic power to ibe detriment or a more m.erltorlous candidate; (c) the very concept of collecting the cost of education • that was what the concept of cost-based or self.linandng 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·ha..,d education or by calling the Institution concerned as a self-financing institution; these expressions were but-a.,_cover for collecting capitation fee; it was nothing E ~ ·1 but exploitation, an'd\ was an elitist concept basically opposed to the constitutional philosophy; the concept suffered from class bias and by allowing such education, two c!asses would come into being; (d) even If it was held that a citizen or a person. bad a right 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 -y be; even a minority educati11nal F instltuJon was held by this Court to have no fundamental right to recog· nltlon or a!rtllatlon; hence such a ripr-could not be envisaged In the case or majority community cir in the case or 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 fair· G ness, merit, maintenance or standards of education and so on, lnduding that the ad"Uission 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 depar· tore therefrom rendered the recognition/affiliation liable to be withdrawn; H

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A and (e) even if such a condition was not expressly imposed, it was impUcit, 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 institu- tions; 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. D On behalf of the Government of India it was submitted that the Central Gowrnment did not have the resources to undertake any addi- tional financial •'esponsibility 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 E was to involve private and voluntary efforts in the education sector in ) - conformity with accepted norms and goals; however, the private educa- tional 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 F condition that they did not collect any capitation fee;

It was also submitted that (a) conferring unconditional and un· qualified right to education at all- levels to every citizen involving a con· stitutional obligation on the State to establish educational institutions either directJy or through State agencies was not warrt'lnted by the Con- G stitution besides being unrealistic and impractical; (lJ) wh•n the Govern- ment 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 s!lch a situation; (c) the principles laid down in Mohilli Jain's case required reconsideration; (d) it H would be unrealistic and unwise to discourage private initiative in provid- 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; (I) regulatory measures should be maintained and strengthened so as to ensure that private educational institutions maintain minimum standards and facilities; (g) admissions within all - :k 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 c pre-determined and transparent.

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The four State Governments also took a similar stand.

It was submitted on behalf of the students who had obtained admis· slons against the Management quota of 50% seats, that they were innocent D parties and had obtained admission in a bonaftde belief that their admis- sioos 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 noihing contrary to law to deserve the punish· E - ~

1 ment awarded by the Full Bench of the High Court.

Disposing of the Writ petitions and appeal~, this Court,

1. The citizens of this country have a fundamental right to educa- __..,. tioo. The said right Dows 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 14 years. Thereafter his right to education is subject to the limits of economic G capacity and development of the State. [6938-C]

~· 2.1. The obligations created by Articles 41, 45 and 46 of the Constitu· tioo can be discharged by the State either by establishing institutions of its own or by aiding, recognising and/or granting affiliation to private H

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A educational institutions. Where aid Is not granted to private edll<"\tlooal 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 fDCed in that behalf. The admission of students and the charging of fee in these private educational institutions shall be governed by the scheme evolved by this Court. [693D-E)

3. A citizen of this country may have a right to establish an educa- tional institution but no citizen, person or institution has a right much less a fundamental right to affiliation or recognition, or to grant-lo-aid from the State. The recognition and/or affiliation shall be given by the State subject only to the conditions set out lo, and in accordance with, the scheme laid down by this Court. No Government/University or authority shall b.e 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. [693F-G)

4. Those institutions receiving aid shall, however, be subject to all such terms and conditions, as the aid giving authority may impose iu the interest of general public. [693H, 694A]

S. Section 3-A of the Andhra Pradesh Educational Institutions (Regulation of Admission and Prohibition or Capitation Fee) Act, 1983 is violative of the equality clause enshrined in Article 14 and Is, therefore, void. (6948]

6. None of the provisions of the enactments of other three States yiz~ 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 (Entrance G Test) or examination'. Much less do they say that to such admissions, the provision prohibiting capitation fee shall not apply. No doubt they cio 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 pro- vide otherwise, either expressly or by implication, they would be equally H bad. [690H, A-BJ

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Per Jeevan Reddy, J. (For himself and Pandian J.) Sharma, a and S.P. A Bharucha, J. Concutring except on the question of right to education being a ·~ fundamental right.

1.1. Right to eduaition is not stated expressly as a Fundamental Right in Part Ill of the Constitution of India. HOMVer, having regard to the fundamental signifiaince of eduaition to the !ife of an individual and B the nation, right to eduaition is implicit in and Rows from the right to life gnaranteed by Article 21. That the right to eduaition has been treated as ~-;Jc one of transcendt:nlal Importance in the life of an individual has been recognised all over the world. Without edu~tion being provided to the citizens of this country, the objectives set forth in the Preamble to the C Constitution ainnot be achieved. The Constitution would fail. [644G, 652G-H, 653A-B]

Bandhua Mukti Morcha v. Union of India, (1984] 2 S.C.R. 67, referred to. D Miss Mohini Jain v. State of Kamataka & Ors., [199l] 3 SCC 666, llftlrmed.

1.2. No doubt Article 21, whiCh declares that no person shall be deprived or his life or personal. liberty except. according to the proced11tt E established by law, is worded in negative terms, but It is now well-settled that Artlde 21 has both a negative and an a.ffirmative dimension. It is also well eslabllshed that the provisions of Parts Ill 'Ind IV are supplementary and complementary to each other and that Fundamental Rights a~ but a means to achieve the goal indiaited in Part IV, and that the Fundamental Rights mnst be construed in the light of the Directive principles, [64SC, 652E] F F.xpress Newspapers v. Union of India, (1959] S.C.R. U; Hussain A1r1 Khatoon •· 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 Mwiicipal Corpotation, (1985) Suppl. ZS.C.R. 51; Kharak Singh v. State of_ Uttar Pradesh and 0~1964) 1 S.C.R. JJ2; Vincent v. Uni~ of India, G (1!1117) 2 S.C.R. 4QI; M.C. Mehta >. Union of India, (19118) 1 S.C.R. 279; · Mandui Gandhi v. Union of India, 1978 SC. 597; R.C. Cooper v. Union of Iildia, (1970) SC. 564; Bandhua Mulcti Morcha v. Union of India, (1984) 2 S.C.IL li7; D.S. Nakara v. Uni,,,, of India, (1983] SC~ l3l1; The State of Mlldnu v. Champakam Dora/r(Jjan, (1959)° S.C.R. 995; flanif v. State of H

1 • 604 SUPREME COURT REPORTS • t993] 1 S.C.R.

A Bihar, [1959) S.C.R. 629; Keshavananda Bharati v. State of Kera/a, 1973 "' ~

;," Suppl. 521; U.P.S.C. Board v. Harishankar, A.l.R. 't979 S.C. 6~ and Minerva Mills v. Union of India, A.l.R. 1980 S.C. 1789, referred to. ~

Munn v. I/linois, 1877 (94) U.S. 113/142 and Bolling v. Sharpe, 98 Lawyers Ed. 884, referred to. B 1.3. 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 4-._ - Ill viz., Articles 29 and 30 speak of education. [653F) c Brown v. Board of Education, 98 Lawyers Ed. 873 and Wisconsin v. Yoder, 32 Lawyers Ed. 2d. 15, referred to.

1.4. 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 D 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 E Mohini Jain was wrong in so far as it declared that the right to education Dows directly from right to life. [654E-G]

Miss Mohini Jain v. State of Kamataka and Ors., [1992) 3 SCC 666, referred to. F 1.5. 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 guaran- teed by Article 21 must be construed in the light of the directive principles in G Part IV of the Constitution. There are several articles in Part IV whicb expressly speak of right to education. [6548, 655A-B) • Miss Mohini Jain v. State of Kamataka and Ors., [1992) 3 SCC 666, partly overruled.

H 1.6. Education means knowledge and knowledge ltsel(is power. Th~ preservation or means of knowledge among the lowest ranl<s is of more A Importance to the public than aU the property of all the rich men in the - ..... ~­ -~, conntry. It Is this concern which nnderlies Article 46. [655D-E]

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John Adams: Desertation on Canon and Fuedal Law, 1765; Rauschn· Ing, The Voice of Destruction: Hilter, referred to. B 1.7. A lrue 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 light of these articles that the content and parameters of the right to education have to be determined. [655F] c 1.8. Thus, right to education, understood in the context or Articles 4S and 41, means: (a) every child/citizen or this country has a right to free education until he completes the age or 14 years, and (b) after a child/citizen completes 14 years, his right to education is circumscribed by the limits of the economic capacity or the State and its developmenL Article D '5 assures right to free education for all children until they complete the ale or 14 years. Among the several articles !n Part IV, only Article 45 speaks or a time-limit; no other article does. This is very signllicanL The State should honour the command or Article 45. It must be made a reality. A child/citizen has a fundamental right to free education up to the age ofl4 years. [655G, 656A, 658D] E G11nnar Myrdal,Asian Drama, refe Ted to.

1.9. This does not, however, mean that this obligation can be per· formed only through the State schools. It can also be done by permitting, reeognlsing and aiding voluntary non-governmental organisations, who F 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. [658E] G 1.10. The right to education further means that a citizen has a right to call upon the Sfate to provide educational facilities to him within the limits oflts economic capacity and development. This does not mean trans· ferrlng Article 41 from Part IV to Part III., No State would say that It need not provide education to Its people even within the limits of Its economic H

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A 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 "'1icle 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 B 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) ...._ ~

C 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 llecause the Governments are not in a position to meet the demand • particularly iu the sector or D 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 on-aided. Aid given by the Government E 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 anthorities 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 Ar· ticles 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·

UNNI KRISHNAN v. STATE OF AP.

pllance with the same. Again aid may take se\>eral forms. For example, a A medical college does necessarily require a hospital. The Government may permit It to avail of the services of a Government hospital for the purpose or the college free or 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 ~hargeable • and observed. The Governments (Central and State) and all other authorities granting aid shall impose socb condi- B tions forthwith, if not already Imposed. These conditions sball apply. to existing as well as proposed private educational institutions. '--- [674F-H, 675A..C]

- 2.3. So far as on-aided institutions are concerned, 1hey cannot be C compelled to char5c the same fee as is charged in Governmental institu· tions, 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/cbarities, if any, can only be the fees collected from the students. It is here that the concepts of 'self-financing educational lnstitutio11s' and cost· D hased educational institutions come In. However, commercialisation of education cannot and should not be permitted. The Parliament as •'ell as State Legislatures have expressed this Intention In unmistakable terms. Both in the light or our tradition and from the stand-point of interest of gmeral public, commercialisation is positively harmrul; it is opposed to public policy. [675D·E, 6768) ./

3.1. Article 19(1)(g) of the Constitution declares that all citizens of this country shall have the right to pradice any profession, or to carry on any occupation, trade or husioess. No opinion Is expressed on the question whether the right to establish an educational Institution can be said to be careying on any 'occupation' within the meaning or Article 19(1)(g). As- suming that it is occupation sucb 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 this nation. The G 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 lo its true aspect is more a mission and a vocation rather than a profession, trade or business, H I

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A however wide may be the denotation of the two latter words. The Parlla· ment too has manifested its intention repeatedly (by enacting the U.G.C. -\'. Act, l.M.C. Act and A.l.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, B Maharashtra and Tamil Nadu in the Preamble to their respective enact- men ts prohibiting charging of capitation fee. [6760-H, 677A-DI

3.2. Imparting education cannot be treated as a trade or business. ~- • Education cannot be allowed to be converted into commerce nor can the c petitioners seek to obtain the said result by relying upon the wider meaning of'oo:upation'. The content of the expression 'occupation' has to be ascer- tained keeping in mind the fact that clause (g) employs all the four expres· sions viz., profession, occupation trade and business. Their fields may overlap, but each or them does certainly have a content of its own, distinct from the others. A law, existing or future, ensuring against the conversion D 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 Society1 Sabar kherda v: State of E Maharashtra, AIR 1968 Bombay 91; Andhra Kesari Education Society v. . ~ Government of A.P., AIR 1984 AP. 251 and Bapuji Educational Association v. State, AIR 1986 Kamataka 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 F 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 Tribuna~ A.l.R. 1962 S.C. 1080, referred to. G 3.4. Establishing educational institutions can by no stretch of Im· aglnation be treated as 'practising any profession'. Teaching may be a profes~ion but establishing an institution, employing teaching and non· teaching stair, procuring the necessary infrastructnre for running a school "'I . or college is not 'practising profession'. It may be anything but not practis- H log a profession. It is not necessary to go into the precise meaning and content or the expressions profession, occupation, trade or business in the instant case. The main concern is only to establish that the activity or establishing and/or running au educational institution cannot be a matter orcommerce. [678H,679A·B]

p. 609 Copy page pinpoint

3.5. Assuming that a person or body of persons bas a right to estab- lish au educational institution, this right is not au 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, affilia- tion may be granted either by the University or any other academic or other body empowereci to grant affiliation to other educational institutions. In other words, it is open to a person to establish au educational institution, admit students, impart education, conduct examination and award certifi· cates 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 recog- E nition or affiliation from the appropriate agency. [679F·GI

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 certifi- cates or other testimonials they have no practical value inasmuch as they are not good for obtaining any employment under the State or for admis· sioo 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 authorities of the Stl!te. In such a situation, it is obligatory· in the i!lterest 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 Staie, it is under an obligation to impose such conditions as part of its duty H

p. 610 Copy page pinpoint

A eltjolned upon it by Article 14 or the Coostltotloo. It cannot aUow Itself or Its power and privilege to be used unfairly. 1be incidents attaching to the main activity attach to supplemental activity as well. AftiUatloo/recogoitloo Is not there for anybody to get it gratis or uocondltlooaUy. No Government, authority or University is justified or Is entlUed to grant recognltlon/aftilla· tlon without imposing such conditions. Doing so, would amount to abdicat- B ing its o~ligatloos enjoined upon it by Part 111, its activity is bound to be cbara~rised as uocoostltotlooal and illegal. [680H, 681A-C)

4.4. 'The private educational iostitotlons merely supplement the ef- fort or the State in educating the people. It is not an independent activity. It C

- Is an activity supplemental to the principal activity carried on by the State. Therefore, what applies to the main activity allJllies equally to supplemen· tal activity. The State cannot claim immunity from the obligations arising from Articles 14 and 15, and so, it cannot confer such immunity upon Its

D affiliates. [680G, 681D)

5.1. Keeping in view the positive reatores or the several Central and ... State enactments, this Court bas evolved a scheme, which every authority granting recognition/affiliation shall impose upon the iostltotioos seeking recognition/affiliation. The idea behind the scheme is to eliminate discre- tion in the management altogether in the matter or admission. It is the discretion in the matter or admission that is at the root or the several ills complained or and bas mainly led to the commercialisation or 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. H0wever, charging the permitted fees by the private edu!"'lional institutions • which is bound to be higher than the fees charged in similar governmental iostitotions by itself cannot be char· G acterised 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 iostitotioos. 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 uolv· H log the scheme precisely is to give effect to the said legislative policy. It

UNNI KRISHNAN v. STATE OF A.P . 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)

5.3. The scheme evolved is in the nature of guidelines which the appropriate Governments and recognising and affiliatiag authorities should impose and implement in addition to such other conditions and stipulations as they may think appropriate as conditions for grant of per· mission, 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. [682CJ

5.4. Only those institutions which seek permission to establish c and/or recognition and/or affiliation from the appropriate authority shall alone be ma"I 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 ap- propriate. 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, as the ease may be. [683A-C)

S.S. 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 G 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 f~ was collected from all the students. The concepts of 'free seats' and 'payment seats' were, therefore, not relevant in such a situation. H

p. 612 Copy page pinpoint

• A all 1Rl'e payment seats only. Such a system ainoot be said to be constitu· tionally not permissible. But the idea lo devising the scb-e bas~ to provide mOt"e opportunities. to merit<>ri~s studeo~, who may not .be able to pay the enhanced fne prescribed by the gov~-ot for such coUeges. The system devised would mean correspondingly .!Dore financial burden on payment students whereas lo the system lo vogue in the State of ~dbra B Pradesh, the financial burden is equally distributed among all ·the stu- . dents. The theoretical foundation for the method devised by tht court Is that a candidate/student who is stealing a mareh over his compatriot on + - acconnt of his economic power should be made not only to pay for himself but also to pay for another meritorious stildent. This is the social justifica· C tion behind the 50% rule prescribed io the sch-e. Io the interest of . uniformity and lo 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 D grant of aDlliation imposes an obligation upon an educational institution • to act fairly io 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. [631 C, 688F)

7.1. Section 3-A of the Andhra Pradesh Educational Institutions E (Regulation or Admission and Prohibition or Capitation Fee) Act, 1983 is, In the nature or an exception to the other provisions of the Act. The Sec· tion, read as a whole, leads to the following consequences: (a) it is open to the private eductlonal institutions to charge as "1uch amount as they can for admission. It will be a matter or bargain between the institution and the student seeking admission; (b) the admission can be made without refer- , ence to inter-se merit or paying candidates. The institution will be entitled to pick and choose the candidates among the applicants on such coo· slderations as it may deem fit; (c) Section S, 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 collectioii'ofthe P"."Scribed tuition fee. [689E, G-H,690A·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 of the Constitution applies to the Sta)F 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 bas to be fol- lowed) the applicability of Article 14 cannot be excluded from the sup- plemental effort/activity. The State Legislature bad, 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 band for exploitation and more particularly, commercialisation of edu""tion, 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. The section falls foul of Article 14 and must accordingly fall. The offending c 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]

p. 613 Copy page pinpoint

. Kranti Sangram Parishad v. NJ. Reddy, (1992) 3 A.L.T. 99, affirmed .. D

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 ad- milted 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 E Court has invalidated these admissions they are continuing now by virtue ~ of tlie 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 tilled up by students allotted by the convenor of the common entrance exam; no one could be admitted by these colleges on F their own. For the current year, these colleges admitted 50% of the students In th~lr own discretion - which necessarily means collection of capitation • • fees and/or arbitrary admissions for their own private reasons. At the same time, these colleges have been collecting the same fees as was charged last year both from the students allotted by the convenor as also from those admitted by themselves. Thus, they have reaped a double advantage. G 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 mouths. The present situation bas 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 H

p. 614 Copy page pinpoint

A 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 B 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 C 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 con- venience 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. Whichever college fails to comp- D ly wi.th 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. Shanna, CJ. (for himself and Bh1J1Ucha, J.) Concurring E 1.1 The question whether the right to primary education as men- tioned in Article 45 of the Constitution or India, is a Fundamental Right under Article 21 did not arise in Mohini Jain's case and no fmding or observation on that question was called for. It cannot be accepted that since a positive fmding 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 which is nat necessary to be dedded in !he case. Therefore, no opinion upon the question is e.l<pressed. However, the finding given in MOhini Jain's case on this question was not necessary in that case and is, therefore, not binding law. Ir it becomes necessary to decide this question in any subsequent case then haling regard to its vast impact, inter a/ia, on the country's financial capacity, the question may be referred to a larger Bench for decision. [622F-G, 623D-E]

H Mohini Jain v. State of Kamataka, (1992) 3 S.C.C. 666, referred to.

p. 615 Copy page pinpoint

1.2. Suffice It to say that there is no Fundamental Right to Education A -.. for a professional degree that Dows from Article 21. [623F]

Per Mohan/. (Concuirlng)

1.1. Article 21 acts as a shield apinst deprivation of life or personal Uberty. Since personal liberty and life have come to be given expanded B nieanlng, It would not be incorrect to hold that life which means to live with

- .,. dignity, takes within it education as well. [697E, 705C)

Addi. DisL Magistrate v. S.S. Shukla, (1976) Supp. S.C.R. 172, relied on. c - 1.2. 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 tbrongh a synthetic process of the development of the body, the enrichment of the mind, the sublimation of the ·motions and the II· -. "' IUmlnatloa of the spirit. Education Is a preparation for a living and for life, D here and hereafter. In the context of a democratic form of goverment which depends for Its sustenance upon the enlightenment of the populace, educa- tion Is at once a soctal and poUtical necessity. Education Is enlightenment. It Is the one that lends dlgoity to a man. [695C, E, 706GJ

University ofDelhi v. Ram Nath, (1964) 2 S.C.R. 703, relied on. E ·+. Oliver Brown v. Board of Education of Topeka, U.S. Supreme Court Reports 98 Law. Ed. U.S. 347, referred to.

1.3. It Is not correct to say that because Article 21 is couched in a neptlve ll!Jlllllage, positive rights to life and liberty are not conferred. The F

.. _ reason as to why Article 21 did not positively confer a fundamental right to life or persoD11l llberty like Article 19 is that great concepts like liberty and ... life were purposefuUy left to gather meaning from experience. They relate to die whole domain of social and economic fact. The drafters of the Constitu· tioa 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 G the same In a positive manner. Therefore, if really Article 21, which Is the heart of fundamental 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. [6990, 697E, G, 701 Gl H

p. 616 Copy page pinpoint

A Maneka Gandhi v. Union of India, A.I.R. 1978 597; Kharak Singh v. State of U.P., [1964] 1 S.C.R. 332; Kesavananda Bharati v. Kera/a, [1973] Supp. S.C.R. 1; Puthumma & Ors. v. State of Kera/a & 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 Delh~ [1967] 3 S.C.R. 525; Govinda v. State of V.P., [1975] 3 B 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; Hussainai Katoon v. State of Bihar, [1979] 3 S.C.R. 169; Prem Shankar v. Delhi Administration, [1980] 3 S.C.R. 855; T. V. Vatheeswaran v. State of Tamil Nadu, A.I.R.1983 S.C. 361; Sheel Bhasre C v. State of Maharashtra, [1983] 2 S.C.C. 96; A.G. of India v. Lachmadevi, of A.I.R. 1986 S.C. 467; Paramananda Katra v. Union India, (1989] 4 S.C.C. 286; Santistar Builder v. N.Kl. Totame, [19'111] 1 S.C.C. 520; Bandhua Mukti Morcha v. Union of India, [1984] 3 S.C.C. )61; Olga Tellis v. Bombay Municipal Corporation, [1985] 3 S.C.C. 545; Mohini Jain v. State of Kar- D nataka, [1992] 3 S.C.C. 666 and State of Andhra Pradesh v. Lavu Narendranath, [1971] 1S.C.C.607, referred to.

1.4. If life is so interprell:d as to .bring within it right to education, it has to be interpreted in the light of diredive principles. Harmonious inter- pretation of the fundamental rights vis· a-vis the directive principles must E be adopted. [706H, 707Al

State of Kera/a & Anr. v. N.M. Thomas & Anr., l1976] 1 S.C.R. 906; Pathumma & Ors. v. State of Kera/a & 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. F Constituent Assembly Debates, 1948-49, Vol.VI, pp. 909 and 910, referred to. •

2.i. A time limit was prescribed under Artic;e 45. Such a tin1e limit is found only here. If, therefore, endeavour has not iJeen made till now to G make lhis Article reverberate \\ith life and articufate with meaning, the Court should step ii!. The State can be obligated to ensure a right to free education of every child npto the age of14 years. [713E]

Norma Bernstein, Human Rights and Education, Vol. 3 p.41; John H Ziman, World of Science and the Rule of Law, 1986 Edu. p.49, referred to.

p. 617 Copy page pinpoint

2.2. Higher Education calls heavily on national economic resources. A The right to it must necessarily be limited in any given country hy 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 B 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, remind· c ing 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)

23. Therefore, right to free education up to the age of 14 years is a fundamental right. SiJtce fundamental rights ~nd directive principles are ----- ~ complementary to each other, there is no reason why this fundamental D / 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, 7178, 7168)

San Antonio Independent School District v. Rodrigues, [1973) 411 U.S., referred to. E -;,. Mohini Jain v. State ofKarnataka, [1992) 3 s.c.c. ~. partly af· firmed.

- California Law Review, Vol. 57 1969 p. 380, referred to. F

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 G 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, l.T.R. Vol. 86 p.267; P.K. Menon v. Income-tax Commissioner, [1959] Supp. 1 S.C.R. 133; Hindustan H

p. 618 Copy page pinpoint

A Steel Umited v. State of Orissa, [1970) 1 S.C.R. 753 and Barendra Prasad Ray v. The Income-tax Officer, A.l.R. i.981 S.C.1047, referred to.

Water Supply and Sewerage Board v. R Rajappa [1978) 3 S.C.R. 207 and Miss Sundarambai v. Government of Goa, [1988) Suppl. 1 S.C.R. 604, distinguished. · B P. Ramanatha Alyar, Law Lexicon Reprin~ Edn. 1987 p.897; Black, Law Dictionary, Fifth Edn. p.973 and Ramuath Iyer, Law Lexicon, Edn. 1987, referred to.

C 4.1. Educational institutions can he classified under two categories : (1) those requiring recognltiou by the State and, (2) those who do not require such a recognition. [725F)

4.2. There is absolutely no fundamental right to recongnltion in any citizen. The right to establishment and run the educational Institution with D State's recognition arises only on the State permitting, pursuant to a policy ;.. - decision or on the fulfilment of th~ conditions of the Statute. Therefore, where it Is dependent on the permission under the Statute or the exercise or an executive power, It cannot qualify to he a fundamental right. Then again, the State ,POiicy may dictate a different course. [72SG-H, 726A] E 4.3. The logical corollary or holding that a fundamental right to establish an educational institution is available under Article 19(l)(g) would lead to the proposition, right to establish a university also. [726B)

F to. S. Azeez hasha & Anr. v. Union of India, [1968) l S.C.R. 833, referred - 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 riglit of the. nature and character conferred under Article 30 cannot he read into Article 19(l)(g). G The conferment or snch 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 H S.C.R. 173, referred to.

p. 619 Copy page pinpoint

4.5. Every activity or occupation by the mere fact of Its not bei8I A obnoxious or harmful to society, cannot by itself be entitled to· protection as fundamental right. Some rights, by the very nature, cannot be qnaJlfled to be protected as fundamental rights. [729BJ

4.6. Accordingly, there is no fundamental right under Article 19(1)(g) to establish an educational institution, if recognition or aftllla· B lion 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 Seclious 22 and 23 of the University Grants Commission Act which prohibits the award of degrees except by a Univer- sity must be kept in mind. {729C-DJ C

5. It is not possible to hold that a private educational institution either by recognition or aftillation to the university could ever be called an Instrumentality or 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 D 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. (7328-C] E Ajay Basia v. Khal~d Mujib Sehravard~ (19811 2 S.C.R. 79; Telcraj Vasandi v. Union oflndia, (1988] 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 F 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 quallftcation. Therefore, since what Is discharged by the educa· tlonal institution is a public duty, that requires it to act fairly. In snch a case, it will be subject to Article 14. (73201 .G

6.2. These educatim1al institutions discharge public duties. Irrespec- tive of the educational institutions receiviug aid, it is a public daty. The absence of aid does not detract from the nature of duty. (737C]

Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvama Jayanti H

A Mahotsav Samarak TTUSt v. V.R. Rullan~ [1993) 1 S..'.:.R.

[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. ne private s.,..tor should be involved and indeed encouraged B to augment the much needed resources in the field of education, thereby making as much progress as possible in achieving the constitutional gools in this respect. Private colleges are the felt necessities of time. nat does not mean one should tolerate the so-called colleges run in thatched buts -< with hardly· any equipment, with no or improvised laboratories, scarce c facility to learn in an unhealthy atmosphere, for from conducive to educa- lion. Such of them must be put down ruthlessly with an iron band ir- respective 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 D to acquire a professional degree which would be a passport for· employ- '- ment in a country rampant with unemployment. They could be even called pirates in the bigb seas of education. [742A-D)

7.2. However, not all the private institutions belong to this category. E There are institu~ons which have attained great reputation by devotion and by nurturing bigb 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. De commercialisation of education, the racketeering must be prevented. The State should strive its utmost in this direction. [743C] F 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 G other groups which deserve speeial treatment. The norms for admission should be pre-determined, objective and transparent. [743D-E]

7.4. Proliteerln_g is an evil. Ir a public utility like electricity could be controlled, certainly, the professional colleges also require to be regulated. H [7~A)

p. 621 Copy page pinpoint

Kera/a State Electricity Board v. S.N.. Govinda Prabllu, [1986) 3 A S.C.R.; Suman Gupta and Ors. v. State of J & Kand 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. 299, referred to.

8. It is not correct to say that education must be available free and B it must be run un a charitable basis. The time is not yet riire to l10Id that education must b: 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, 748AJ

St. Stephen's College v. University of Delhi, [1992) 1 S.C.C. 558; c Special Commissi01iers of Income-tax v. Pemsel, 3 Tax Cases 53; 17ie King v. 11ie Commissioner for Special Purposes of the Income-tax, 5 Tax Cases 408 and 77ie Abbey Malvern Vie/ls Ltd. v. Minister of Town and Country

... - Planning, 1951 (2) All England Law Reports 154, refer;red to.

P.R. Ganapathy Iyer: 77ie Law relating to Hindu and Mahomedan D ·Endowments, Chap. Ill p.46 & 49; B.K. Mukherje : 17ie Hindu Law of Religious and Charitable Trust, p.58 para 2.7A, referred to.

CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No.607 of ~. E

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) F 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. 779192, 2337-2338/83, CA. No. 3573/92, W.P.(C) No.870192, 855/92 & SLP(C) No.15039 of 1992.

Milon Kumar Banerjee, Attorney General, Dipankar Prasad Gupta, G Solicitor General, V.R. Reddy, Additional Solicitor General, K.K. Venugopal, Santosh Hegde, K. Parasarn, 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. Sitararnaiah,Harish N. Salve, Madhunaik Nair, H

p. 622 Copy page pinpoint

A Suchinto Chatterji, P.P. Tripathi, K. V. Mohan, Ejaz Maqbool, Vijai Kumar, V. Balachandran, S.R. Bhat, A.V. Rangam, A. Ranganadhan,··w.c. .:J 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. Pate~ Mohan V. Katarki, Shambhu Prasad Singh, Rajeshwar Thakur, Ms. Rani B Jethmalani, K V.. Viswanathan, Madho 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. Sobba Rao, A.Mariarputham, Mrs. Arona Mathur, ~ 4 Dr. Suman! Bhardwaj, Anuputham, Arona & Co., Ms. Madho Moolchan- dani, S.A. Sequeira, G.K. Shevgoor, R.P. Wadhwani, Dr. J.P. Verghese, c 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. Suman! Bhardwaj, R.S. Hegde, K.R. Nagaraja, Sunil Dogra, Smiriti Misra, Ms. D Madhavan, P.H. Parekh, A.S. Bhasme, Vimal Dave and B. Rajeshwar Rao ... for the appearing parties.