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

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A tablished and incorporated under the Annamalai University Act, 1928 ~ enacted by the then Madras Legislature. It has 45 faculties including Engineering and Technology and Medicine. So far as the medical college is concerned, the annual intake is 125. Against this strength of 125, the petitioner admits 50 students belonging to Scheduled Castes, Scheduled !

Tribes and backward classes. Only a nominal fee is collected from them. B From the remaining 75 students, a sum of Rs. 4 lakhs is collected by way of fees. This sum of Rs. 4 lakhs is hardly sufficient to meet the cost of -~ ~

medical education. Unless this minimum fee of Rs. 4 lakhs is collected from at least 75 students, it is not possible for the petitioner to run the medical college which is attached to a hospital. While so, the Governor of Tamil c Nadu has issued the aforesaid ordinance prohibiting the capitation fee. This ordinance has evidently been issued pursuant to the decision of this Court in Mohini Jain. If the petitioner is compelled to collect only that fee which is· charged by the Government in Government Medical Colleges, it would be impossible to run the medical college. It has to close down. The -' impugned ordinance {by the date of filing of writ petition the Act replacing · D the ordinance bad not yet come into force) is violative of the fundamental right of the petitioners to establish and administer a medical college by collecting appropriate amounts from the students who are ready and willing to pay the same for their admission into the medical college, says the petitioner. E ~ PART II

Question No. 1: "Whether the Constitution of India guarantees a fun- datnental right to education to its citizens?" F

31. Right to education is not stated expressly as a fundamental right in Part Ill. This Cour.t bas, however, not followed the rule that unless a right is expressly stated as a 'fundamental right, it cannot be treated as one. Freedom of Press is not expressly mentioned in Part Ill, yet it has been G read into and inferred from the freedom of speech and expression - Expres~ Newspapers '· Union of India, .(1959] S.C.R. 12. More particularly, from Article 21 has sprung up a whole lot of human rights jurisprudence viz., right to legal aid and speedy trial Hussain Ara Khatoon, (1979) 3 S.C.R. 532 to A.R. Antulay, (1992) 1 S.C.R.' 225, the right to means of livelihood Olga Tellis, (1985) Supp. 2 S.C.R. 5.1., right to di:;nity and privacy, Kharak. H Singll) (1964j 1 S.C.R. 332, right to health Vincent. v. Union of India, [1987]

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2 S.C.R. 468), right to pollution-free environment M.C. Mehta v. Union of A India, (1988] 1 S.C.R. 279 and so on. Let us elaborate.

32. In Express Newspapers v. Union of India, (1959] S.C.R. 12 it has been held:

'The freedom of speech comprehends the freedom of press and the freedom of speech and press are fundamental and personal rights of the citizens.'

33. Article 21 declares that no person shall be deprived of his life or personal liberty except according to the procedure established by law. It is true that the Article is worded in negative terms but it is now well-settled that Article 21 has both a negative and an affirmative dimension. As far back as 1962, a Constitution Bench (comprising of six learned Judges) in Kharak Singh v. State of Uttar Pradesh and Ors., (1964] 1 S.C.R. 332 decided on 18th December, 1962 considered the content of the expression 'personal liberty" occurring in Article 21. Rajgopala Ayyangar, J. speaking for the majority, observed:

"We shall now proceed with the examination of the width, scope and content of the expression "personal liberty" in Article 21. We feel unable to hold that the term was intended to bear only this narrow interpretation but on the other hand consider that "personal liberty'' is used in the Article as a compendius term to include within itself all the varieties of rights which go to make up the 'personal liberties" of man other than those deal with in the several cl~uses of Art. 19(1). In other words, while Art.19(1) deals with particular species or attributes of that freedom, "per- sonal liberty" in Art. 21 takes in and comprises the residue."

The leaned Judge quoted the dissenting opinion of Field, J. (one of those dissenting opinions which have out-lived the majority pronouncements) in Munn v. Illinois, (1877 (94) U.S. 113/142 attributing a broader meaning to the word "life" in the fifth and fourteenth amendments to the U.S. Con- stitution, which correspond inter alia to Article 21 of our Constitution. The learned Judge held that the word 'personal liberty' would include the privacy and sanctity of a· man's home as well as the dignity of the individual. H

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A The minority Judges, however, placed a more expansive interpreta- tion on Article 21. They said:

'No doubt the expression 'personal liberty' is a comprehen- sive one and ihe right to move freely is an attribute of personal liberty. It is said that the freedom to move freely B is carved .out of personal liberty and, therefore, the expres- sion 'personal liberty' in Art. 21 excludes that attribute. In our view, this is not a correct approach. Both are inde- pendent fundamental rights, though there is overlapping. There is no question of one being carved out of another. c The fundamental right of life and personal liberty has many attributes and some of them are found in Art. 19. If a person's fundamental right under Art. 21 is infringed, the State can rely upon a law to sustain the action, but that cannot be a complete answer unless the said law satisfies the test laid down in Art. 19(2) so far as the attributes covered by Art. 19(1) are concerned.'

34. In Maneka Gandhi v. Union of India, [1978) S.C. 597 Bhagwati, J. held that the judgment ih R.C. Cooper v. Union of India, 1970 S.C. 564 nas the effect of overruling the majority opinion and of approving the minority opinion in Kharak Singh.

35. In Bolling v. S~arpe, 98 Lawyers Ed. 884 Warren, C.J. speaking for the U.S. Supreme Court observed "although the court has not assumed to define "liberty" with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective." Having said so, the learned Judge proceeded to observe "segregation in public education is not reasonably related to any proper governmental objective, and thus 1t im- poses on Negro children of the District of Columbia a burden tnat con- G stitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause.'

36. The word "life" occurring in Article 21 too has received a broad and expansive interpretation. While it is not necessary to refer to all of H them, reference must be made to the decision in Olga Tellis v. Bombay

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Municipal Cotporation, (1985] Suppl. 2 S.C.R. 51. Chandrachud, CJ. speak- A ing for a Constitution Bench of this court observed: .t- 'The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except B according to procedure established by law. That is but one aspect of the right to life. An equally important facet of > that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part c of the constitutional right to life, the easiest way of depriv- ing a person his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprevation would not only denude the life of its effective -, ~ content and meaningfulness but it would make life impos- D sible to live. And yet, such depreivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life viable, must be deemed to be an integral component of the right to life. Deprive a person E A of his right to livelihood and you shall have deprived him of his life .........

Article 39(a) of the Constitution, which is a Directive Principle of State Policy, provides that the State shall, in particular, direct its policy towards securing that the ..... citizens, men and women equally, have the right to an adequate means of livelihood. Article 41, which is another Directive Principle provides, inter a/ia, that the State shall, wi•hin the limits of its economic capacity and development, make effective provision for securing the right to work in cases of unemployment and of undeserved want. Article 37 provides that the Directive Principles, though not enforce- .>- able by any court, are nevertheless fundamental in the governance of the country. The Principles contained in Articles 39(a) and 41 must be regarded as equally fundamen- H

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A tal in the understanding and interpretation of the meaning and content of fundamental rights. If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life.' B

In D.S. Nakara v. Union of India, [1983] S.C.R. 130, a Constitution Bench explained the significance of the addition of the expression 'Socialist" in the preamble of our Constitution in the following words: F 'During the formative years .... socialism aims at providing all opporiunities for pursuing the educational activity .... . There will be equitable distribution of national cake ....."

G In Vincent v. Union of india, [1987] 2 S.C.R. 46ll, it was held by a Division Bench of this Court that:

'In a welfare State, therefore, it is the obligation of the State to ensure the creation and the sustaining of conditions congenial to good health ........ In a series of pronounce- H ments, during the recent years, this court has culled out

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from the provisions of Part IV of the Constitution, the several obligations of the State and called upon it to effec- tuate them in order that the resultant pictured by the Constitution fathers may become a reality."

In A.R. Antulay v. R.S. Naik, (1992) 1 S.C.R. 225, a Constitution Bench of this Court held that Article 21 creates a right in the accused to be tried speedily and that the said right encompasses all the stages of a criminal case. It was held that the violation of this right of the accused may .C entail the very quashing of the charges.

Interplay of parts Ill and IV: c

38. This Court has also been consistently adopting the approach that the fundamental rights and directive principles are supplementary and complementary to each other and that the provisions in Part III should be interpreted having regard to the Preamble and the directive principles of the. State policy. The initial hesitation to recognise the profound sig- D nificance of Part IV has been given up long ago. We may explain.

While moving for consideration the interim report on fundamental rights, Sardar Vallabhai Patel described both the rights mentioned in P'lfts III and IV as 'fundamental rights' - one justificiable and other non-justici- E able. In his supplemental repor~ he stated:

"There were two parts of the report; one contains fun- damental rights which were justiciable and the other part of the report refers to fundamental rights which were not justiciable but were directives." F This statement indicates the significance attached to directive prin- ciples by the founding fathers. It is true that in The state of Madras v. Champakam Dorairajan, (1959) S.C.R. 995, fundamental rights were held preeminent vis-a-vis Directive Principles but since then there has been a perceptible shift in this Court's approach to the inter-play of Fundamental G Rights and Directive Principles.

).. 39. As far back as in 1958, in the Kerala Education Bill a Special Bench of this Court speaking through S.R. Das, CJ., while affirming the primacy of Fundamental Rights, qualified the same with the following H

650 slJPREME COURT REPORTS [19'J3) 1 S.C.R.

A observations:

'Nevertheless, in determining the scope and ambit of the fundamental rights relied upon by or on behalf of any person or body, the court may not entirely ignore these directive principle,-; of State policy laid down in Part IV of B the Constitution but should adopt the principle of har- monious construction and should attempt to give effect to both as 1nuch as possible '

This is also the view taken in Hanif v. State of Bihar, [1959) S.C.R. C 629 at 655. In Keshavananda Bharati v. State of Kera/a, 1973 Suppl. 521 more than one learned Judge adverted to this aspect. In the words of Hegde and Mukherjee. JJ .:

'The Fundamental Rights and Directive Principles con- D ·~- - stitute the 'conscience' of the Constitution ........ To ignore Part IV is to ignore the sustenance provided for in the Constitution, the hopes held out to the nation and the very ideals on which our Constitution is built. ....... There is no anti-thesis between the Fundamental Rules and the Direc- E tive Principles.... One Supplements the other.'

Shela! and Grover, JJ. in their judgment observed:

'Both Parts Ill and IV....have to be balanced and har- monised ......then alone the dignity of the individual can be F achieved....... They (Fundamental Rights and Directive Principles) were meant to supplement each other.'

Mathew, J. while adopting the same approach remarked:

'The object of the people in establishing the Constitution G was to promote justice, social and economic liberty and equality. The modus operandi to achieve these objectives . is set out in Parts Ill and IV of the Constitution. Both Parts Ill and IV enumerate certain moral rights. Each of thes~ Parts represents in the main the statements in one sense of H as certain aspirations whose fulfilment was regarded ess~n-

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tial to the kind of society which the Constitution-makers A wanted to build. Many of the articles, whether in Part III or Part IV, represent moral rights which they have recog- nised as inherent in every human being in his country. The task of protecting and realising these rights is imposed upon all the organs of the State, namely, legislative, execu- B tive ·and judicial. What then is the importance to be at- !ached to the fact that the provisions of Part III are enforceable in a Court and the provisions in Part IV are not? Is it that the rights reflected in the provisions of Part ;... III are somehow superior to the moral claims and aspira- tions reflected in the provisions of Part IV? I think not. c Free and compulsory education under Article 45 is certain- ly as important as freedom of religion under Article 25. Freedom from starvation is as important as right to life. • Nor are the provisions in Part III absolute in the sense that the rights represented by them can always be given full implementation." • __ J--.., Y.V. Chandrachud, J. (as he then was) put the same idea in the following words:

"As I look at the provisions of Parts III and IV, I feel no doubt,· that the basic object of conferring freedoms on individuals is the ultimate achievement of the ideals set out .. )..., in Part IV..... May I say that the directive principles of State · policy should not be permitted to become 'a mere rope of sand'. If the State fails to create conditions in which the fundamental freedoms can be enjoyed by all, the freedom of the few will be at the mercy of the many and then all freedoms will vanish."

/.._ 40. In State of Kamataka v. Rmiganatha Reddy, Krishna Iyer, J. stated: G "Our thesis is that the dialectics of social justice should not. be missed if the systhesis of Part III and Part IV is to influence State action and Court pronouncements.'

In U.P.S.C. Board v. Harishankar, A.l.R. 1979 S.C. 65 it was observed: .I. "Addressed to courts, what the injunction (Article 37) means is that while H

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A courts are not free to direct the making of legislation, courts are bound to evolve, affrrm and adopt principle of interpretation which will further and not hinder the goals set out in the Directive Principles of State Policy. This command of the constitution must be everpresen.t in the minds of the __..., Judges while interpreting statutes which concern themselves directly or indirectly with matters set out in the Directive Principles of State Policy.' B This is on the view that the 'State' in Article 36 read with Article 12 includes the judiciary as well,

In Minerva Mills v. Union of India, A.LR. 1980 S.C. 1789, Chan- drachud, CJ. quoted with approval the similie of Granvlle Austin that Parts ~- c III and IV are like two wheels of a chariot and observed that 'to give • absolute primacy to one over the other is to disturb the harmony of the Constitution.' The learned Chief Justice observed further:

"Those rights (Fundamental Rights) are not an end in ~

themselves but are the means to an end. The end is specified in Part IV.' ...

41Copy pinpoint41. It is thus well established by the decisions of this Court that the provisions of Parts III and IV are supplementary and complementary to each other and that Fundamental Rights are but a means to achieve the goal indicated in Part IV. It is also held that the Fundamental Rights must be construed in the light of the Directive Principles. It is from the above stand point that Question No.l has to be approached. _1._ ~ ARTICLE 21 AND RIGHT TO EDUCATION:

42Copy pinpoint42. In Bandhua Mukti Morch this court held that the right to life guaranteed by Article 21 does take in "educational facilities'. (The relevant ,.' portion has been quoted hereinbefore). Having regard to the fundamental significance of education to the life of an individual and the nation, and adopting the reasoniqg and logic adopted in the earlier decisions of this G Court referred to hereinbefore, we hold, agreeing with the statement in Bandhua Mukti Morcha, that right to education is implicit in and flows from the right to life guaranteed by Article 21. That the right to education has been treated as one of transcendental importance in the life of an in- dividual has recognised not only in this country since thousands of years, IH but all over the world. In Mohini Jain, the importance of education has '

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been duly and rightly stressed. The relevant observations have already been A set out in para 7 hereinbefore. In particular, we agree with the observation >- that without education being provided to the citizens of this country,· the objectives set forth in the Preamble to the Constitution cannot be achieved. The Constitution would fail. We do not think that the importance of education could have been better emphasised than in the above words. The B importance of education was emphasised in the 'Neethishatakam' hy Bhartruhari (rtrSt Century B.C.) in the following words: ~ 'Translation:

Education is the special manifestation of man; c Education is the treasure. which can be preserved without the fear of loss;

Education secures material pleasure, happiness and fame; J.. D Education is the teacher of the teacher;

Education is God incarnate;

Education secures honour at the hands of the State, not money. E '- A A man without education is equal to animal.'

The fact that right to education occurs in as many as three Articles in Part IV viz., Articles 41, 45 and 46 shows the importance attached to it by the founding fathers. Even some of the Articles in Part ill viz., Articles F 29 and 30 speak of education. ~,.__

43Copy pinpoint43. In Brown v. Board. of Education, 98 Lawyers Ed. 873, Earl Warren, CJ., speaking for the' U.S. Supreme Court emphasised the right to education in the following words: G "Today, education is perhaps the most important function of state and local governments........ It is required in the ,/- . performance of our most basU: responsibilities, even ser- vice in the armed forces. It is the very foundation of good citizenship. Today it is the principal instrument in awaken- .H

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A ing the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful any child may reasonably be expected to succeed in life if he is denied the opportunity of an education."

B In Wisconsin v. Yoder, 32 L.Ed. 2d, 15 the Court recognised that:

· "Providing public schools ranks at the very apex of the function of a State."

The said fact has also been affirmed by eminent educationists of c modern India like Dr. Radhakrishnan, J.P. Naik, Dr. Kothari and others.

44Copy pinpoint44. It is argued by some of the counsel for the petitioners that Article 21 is negative an character and that it merely declares that no person shall be deprived of his life or personal liberty except according to the procedure D established by law. Since the State is not depriving the respondents-stu- dents of their right to education, Article 21 is not attracted, it is submitted. If and when the State makes a law taking away the right to education, would Article 21 be attracted, according to them. This argument, in our opinion, is really born of confusion; at any rate, it is designed to confuse the issue. E The first question is whether the right to life guranteed by Article 21 does take in the right to education or not. It is then that the second question arises whether the State is taking away that right. The mere fact that the State is not taking away the right as at present does not mean that right to education is not included within the right to life. The content of the righi is not determined by perception of threat. The content of right to life is F 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.

45Copy pinpoint45. In the above state of law, it would not be correct to contend that G Mohini Jain was wTong in so far as it declared that "the right to education flows directly from right to life." But the question is what is the content of this right? How much and what level of education is necessary to make the life meaningful? Does it mean that every citizen of this country can call "°'I, upon ·the State to provide him education of his cl.oice? In ·other words, H whether the citizens of this country can demand that the State provide

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ad~uate number of medical colleges, engineering colleges and other educational institutions to satisfy all their educational needs? Mohini lain ~ seems to say, yes. With respect, we cannot agree with such a broad proposition. The right to education which is implicit in the right to life and personal liberty guaranteed by Article 21 must be construed in the light of the directive. principles in Pait W of the Constitution. So far as the right to education is concerned, there are several articles in Part N which e:xpressly speak of it. Article 41 says that the "State shall, within the limits of its _). economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of un- employment, old age, sickness and disablement, and in other cases of underserved want.' Article 45 says that 'the State shall endeavour to c provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.' Article 46 commands that 'the State shall promote with special care the educational and economic interests of - _J, D the weaker sections of the people, and, in -particular, of the Scheduled Castes and the Scheduled Tribes, and shall -protect them from social injustice and all forms of exploitation." Education means knowledge - and knowledge itself is power.' As rightly observed by Johan Adams, 'the preservation of means of knowledge among the lowest ranks is of more importance to the public than all the property of all the rich men in the E ,I." country" (Dissertation on canon and fuedal law, 1765). It .is this concern which seems to underlie Article 46. It is the tyrants and bad rulers who are afraid of spread of education and knowledge among the deprived classes. Witness Hitler railing against universal education. He said: "Universal education is the most corroding and disintegrating poison that liberalism has ever in\lented for its own destruction." (Rauschniug, The voice of destruction: Hitler speaks). A true democracy is one where education is - ...__ universal, where people understand what is good for them and nation and know how to govern themselves. The three articles 45, 46 and 41 are designed to achieve the said goal among others. It is in the light of these articles that the content and parameters of the right to education have to be determined. Right to education, understood in the context of Articles 45 and 41, means: (a) every child/citizen of this country has a right to free >-, educatio~ until he completes the age of fourteen years and (b) after a ' child/citizen complet~s 14 years, his right to education is circumscribed by the H

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A limits of the economic capacity of the State and its development. We may deal with both these limbs separately. ·

Right to free education for all children until they complete the age of fourteen years (45-A). It is noteworthy that among the several articles in part B IV, only Article 45 speaks of a time-limit; no other article does. Has it no significance? Is it a mere pious wish, even after 44 years of the Constitution? Can the State flout the said direction even after 44 years on the ground that the article merely calls upon it to 'endeavour to provide' the same and on the further ground that the said article is not enforceable by virtue of the declaration in Article 37. Does not the passage of 44 years - more than four times the period stipulated in Article 45 - convert the obligation created by the article into an enforceable right? In this context, we feel constrained to say that allocation of available funds to different sectors of education in India discloses an inversion of priorities indicated by the Constitution. The Con- stitution contemplated a crash programme being undertaken by the State to achieve the goal set out in Article 45. It is relevant to notice that Article 45 does not speak of the "limits of its economic capacity and development' as does Article 41, which inter alia speaks of right to education. What has actually happened is - more money is spent and more attention is directed to higher education that to - and at the cost of - primary education. (By primary education, we mean the education, which a normal child receives by the time he completes 14 years of age). Neglected more so are the rural sectors, and the weaker sections of the society referred to in Article 46. We clarify, we are not seeking to lay down the priorities for the government - we are only emphasising the constitutional policy as disclosed by Articles 45, 46 and 41. Surely the wisdom of these constitutional provisions is beyond question. This F inversion of priorities has been commended upon adversely by both the educationists and economists.

Gunnar Myrdal, the noted economist and sociologist, a recognised authority on South Asia, in his book 'Asian Drama' (abridged Edition - published in 1972) makes these perceptive observations at page 335: G "But there is another and more valid criticism to make. Although the declared purpose was to give priority to the increase of elementary schooling in order to raise the rate of literacy in the population, what has actually happen~d H is that secondary schooling has been rising much faster and

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tertiary schooling has iocreased still more rapidly. There is A } .. a fairly general tendency for planned targets of iocreased primary schooling not to be reached, whereas targets are over-reached, sometimes substantially, as regards in- creases io se~ndary and, particularly, tertiary schooling. This has all happened io spite of the fact that secondary B schooling seems to be three to five times more expensive than primary schooling, and schooling at the tertiary level five to seven times more expensive than at the secondary level.

What we see functioniog here is the distortion of develop· c ment from planned targets under the influence of the pressure from parents and pupils io the upper strata who everywhere are politically powerful. Even more remarkable is the fact that this tendency to distortion from the poiot of view of the planniog objectives is more accentuated io the poorest countries, Pakistan, India, Burma and In- donesia, which started out with far fewer children io primary schools and which should therefore have the strongest reasons to carry out the programme of giving primary schooling the highest priority. It is generally the poorest countries that are spending least, even relatively, on primary education, and that are permitting the largest distortions from the planned targets in favour of secondary and tertiary education.'

F In his other book "Challenge of World Poverty" (published io 1970) he discusses elaborately - in chapter 6 'Education' - the reasons for and the consequences of neglect of basic education in this country. He quotes J.P. Naik, (the renowned educationist, whose Report of the Education Commission, 1966 is still considered to be the most authoritative study of education scene io India) as saying 'Educational development... ...... is G benefitting the 'haves' more than the "have nots". This is a negation of social justice and 'planniog' proper" - and our constitution speaks repeated- ly of social justice (Preamble and Article 38(1)). As late as 1985, the Ministry of Education has this to say in para 3.74 of its publication "Challenge of Education - a policy perspective". It is stated there: H

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A '3.74. Considering the constitutional imperative regarding the universalisation of elementary education it was to ~ , -( expected that the share of this sector would be protected from attribution. Facts, however, point iii the opposite direction. From a share of 56 per cent in the First Plan, it declined to 35 per cent in the Second Plan, to 34 per cent B in the Third Plan, to 30 per cent in the Fourth Plan. It started going up again only in the Fifth Plan, when it was at the level of 32 per cent, increasing in Sixth Plan to 36 ---(_ per cent, still 20 per cent below the First Plan level. On the other hand, between the First and the Sixth Fiv~ Year c Plans, the share of university education went up from 9 per cent to 16 _per cent.".

Be that as it may, we must say that at least now the State should honour the command of Article 45. It must be made a reality - atleast now. Indeed, the 'National Education Policy - 1986' says that the promise of, ,...... • D Article 45 will be redeemed before the end of this century. Be that as it may, we hold that a child (citizen, has a fundamental right to free education up to the age of 14 years.

46Copy pinpoint46. This does not however mean that this obligation can be per- E formed only through the State schools. It can also be done by permitting, A recognising and aiding voluntary non-governmental organisations, who are prepared to impart free education to children. This does not also mean that unaided private schools cannot continue. They can, ·indeed, they too have a role to play. They meet the demand of that segment of population who may not wish to have their children .educated in State-run schools. They have necessarily to charge fees from the students. In this judgment, however, we do not wish to say anything about such schools or for th~t ,...... matter other private educational institutions except 'professional colleges'. This discussion is really necessitated on account of the principles enun- ciated in Mohini Jain and the challenge mounted against those principles in these writ petitions.

47Copy pinpoint47. At this juncture, it would be appropriate to refer to tne additional affidavit filed by the Union of India. In this affidavit, the present state of '""" primary and upper primary education is set out. (Primary stage means H Classes I to V. Upper primary stage means classes VI to VIII). After

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setting out the particulars of number of schools and enrolment therein, it A )-. is stated in para 3 that "this increase provided Indian.Education System with one of the largest systems in the world, providing accessibility within. 1 Km. walking distance of Primary schools to 8.26 ·1akhs habitations con- taining about 94% of the country's population. Growth in enrolment in the decade of 80s showed an acceleration that has now brought enrolment B rates close of 100% at primary stage." Again in para 4, under the sub-head- ing "Free education", the following statement occurs:

"4. In the endeavour to increase enrolment and achieve the target of UEE, all State Governments have abolished tui- tion fees in Government Schools run by local bodies and c private aided institutions is mostly free in these States; however, in private unaided schools whcih constitute 3.7.% Gf the'total elementary schools in the country, some fee is charg~d. Thus, overall, it may be said that education up to . elementary level in practically all schools is free. Other . costs of education, such as text books, uniforms, schools D bagS, transport etc. are not borne by States except in a very few cases by way of incentives to children of indigent families or those belonging to Scheduled Caste/Scheduled Tribes categories. The reason why the Stale Government are unable to bear this additional expenditure is that 96% E A. of expenditure on elementary education goes in meeting the salaries of teaching and non-teaching staff."

Para 5 of the affidavit deals with "Compulsory education". It reads as follows: F 11

5. 14 States and 4 Llnion Territories have enacted legis- lation to make educational compulsory but the socio- economic compulsions that keep the children away from schools have restrained them from prescribing the rules and regulations whereby those provisions can be en- dorsed." G

The affidavit also mentions the steps taken by Central and State / >- . Governments in pursuance of Naitonal Education Policy including 0pera- 11

tion Blackboard" and its contribution to the increase in primary education. It was indeed gratifying to note these facts, though much more remains to H

p. 660 Copy page pinpoint

A be done to raise the quality of instruction. Before proceeding further, we think it right to say this: We are aware . -( that "Education is the second highest sector of budgeted expenditure aftet the defence. A little more than three per cent of the Gross National Product is spent in educavon', as pointed out in para 2.31 of 'Challenge of B Education'. But this very 'publication says that 'in comparison to many countries, IPdia spends much less on education in terms of the proportion of Gross National Product' - and further "in spite of the fact that educa- tional expenditure continues to be the highest item of expenditure next only ._.\__ to Defence the resource gap for educational needs is one of the major c problems. Most of the current expenditure is only in the form of salary payment. It hardly needs to be stated that additional capital expenditure would greatly augment teacher productivity because in the absence of expenditure on other beads even the utilisation of staff remains low.' We do realise that ultimately it is a question of resources and resources-wise this country is not in a happy position. All we are saying is that while D allocating the available resources, due regard should be had to the wise > words of Founding Fathers in Articles 45 and 46. Not that we are not aware of the nnportance and significance of higher education. What may perhaps be required is a proper balancing of the various sectors of education.

E Right to education after the child/citizen completes the age of 14 years.

48Copy pinpoint48. The right to education further means that a citizen bas a right to ,...., call upon the State to provide educational facilities to him within the limits of its economic capacity and development. By saying so, we are not transferring Article 41 from part IV to Part III - we are merely relying upon F Article 41 to illustrate the content of the right to education flowing from Article 21. We cannot believe that any State would say that it need not provide education to its people even within the limits of its economic capacity and development. It goes without saying that the limits of -~

economic capacity are, ordinarily speaking, matters within the subjective satisfaction of the State. G

49Copy pinpoint49. In the light of the above enunciation, the apprehension expressed by the counsel for the petitioners that by reading the right to education into Article 21, this Court would be enabling each and every citizen of this .-..I.. country to approach the courts to compel the State to provide him such H education as he chooses must be held to be unfounded. The right to free

p. 661 Copy page pinpoint

education is available only to children until they complete the age of 14 A years. Thereafter, the obligation of the State to provide education is subject to the limits of its economic capacity and development. Indeed, we are not stating anything new. This aspect has already been emphasised by this Court in Francis C. Mullin v. AdministratoT, Union Territory of Delhi, (1981) 2 S.C.R. 516. While elaborating the scope of the right guaranteed under B Article 21, this court stated:

"But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes right to live with human dignity and c all that goes along with it viz., the bare necessities of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in divese forms, freely moving about the mixing and commin- gling with fellow human beings. Of course, the magnitude - -J, D a11d content of the components of this right would depend upon tile extent of the economic development of the country, but it must in any view of the matter, include a right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the humanself." E

50Copy pinpoint50. We must hasten to add that just because we have relied upon some of the directive principles to locate the parameters of the right to education implicit in Article 21, it does not follow automatically that each and every obligation referred to in Part IV gets automatically included within the purview of Article 21. We have held the right to education to F be implicit in the right to life because of its inherent fundamental impor- . tance. As a matte1 of fact, we have referred to Articles 41, 45 and 46 merely to determine the parameters of the said right.

PART- Ill G· Question Nos. 2 and 3:

51Copy pinpoint51. It would be convenient to deal with question Nos.² and 3 together. The contentions urged by the counsel for the petitioners can be broadly summarised in the following words: H

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A (a) The State has no monopoly in the matter of imparting education. Every citizen has the fundamental right to establish an educational institu- tion as a part of the right guraranteed to him by Article 19(l)(g) of the Constitution. This right extends even to the establishment of an educational institution with a profit motive i.e., as a business adventure. The said right, no doubt, is subject to such reasonable restrictions as may be placed upon it by a law within the meaning of clause (6) of Article 19. But for the said restrictions, the right is absolute.

(b) The vice lies not in the establishment of educational institutions by individuals and private bodies but in unnecessary State control. The law of demand and supply.....what may be called the 'market forces' ...... must be allowed a free play. Because there are more number of persons seeking admission that the existing institutions can provide that the several ills complained of have developed.

(c) The establishment of an education institution is no different from any other venture e.g., starting a business or industry. It is immaterial whether the institution is established with or without profit motive. Indeed, only when there is profit motive that persons with means would come forward to open more and more schools and colleges. There are not many persons available today who are prepared to donate large funds for estab- E lishing such institutions by way of charity or philantrophy.

(d) Even if it is held, for any reason, that a person has not right to establish an education institution as a business venture, be has atleast the right to establish a self-financing educational institution. Such a institution F may also be described as an institution providing cost-based education. This means that it is open to a person to collect amounts from willing parties and establish an institution to educate such persons or their children, as the case may be. Even in an established institution, the fees that may collected from the students must be such as not only to defray the expendittire of running the institution but also for improvement, expan- G sion, diversification and growth. In such institutions, rhe quantum of the fees to be charged should. be left to the concerned institutions. The Government should have to say in the matter. So far as the court i' concerned, it is not possible for it, in the very nature of things, to go into this issue. The needs of each educational institution may be different. The :H standard of education imparted and the facilities provided may be different

UNNI KRISHNAN v. STATE OF AP. [REDDY, J.) 663

from institution to institution. May be, the Govennent or the Court may insist that as a condition for running such institution, a reasonable number of seats should be allotted to students purely on merit, who shall be asked to pay only such fees as is charged in similar Governmental institutions. If this is done - to which the petitioners have no objection - it will not only meet the needs of education of those who have the capacity to pay but it will also meet the needs of other meritorious students who are not able to obtain admission in the Governmental institutions and are also not in a position to pay the fees normally charged such private institutions. Several facts and figures are furnished to us to show bow in each State these private educational institutions are providing a large number of "free seats" to the nominees of the Government. It is pointed out that all these students would not have had an opportunity of studying the course of their choice but for the existence of these private educational institutions.

(e) Moliini Jain's case was not right in saying, in the above situation, ··~ that charging of any amount, by whatever name it is called, over and above the fee charged by the Government in its own colleges, must be described as capitation fee. Saying so amounts to imposing an impos~ible condition. It is simply not possibly for the private educational institutions to survive if they are compelled to charge only that fee as is charged in Governmental institutions. The cost of educating an engineering or a medical graduate is very high. All that cost is borne by the State in Governmental colleges but the State does not subsidise the private educational institutions. The private educational institutions have to find their own finances and that can come only from the students.

F (t) Even if the right to establish an educational institution is not trade or business within the meaning of Article 19(1)(g), it is certainly an 'occupation' within the meaning of the said clause. Indeed, the use of the four expressions - profession, occupation, trade or business - in Article 19(1)(g) was meant to cover the entire field of human activity. In such a situation, it is not necessary for the petitioners to pinpoint to which G particular expression does their activity relate. It is enough to say that the petitioners do have the right to establish private educational institutions - ~" at any rate, self-financing/cost-based private educational instituions. This right can be restricted only by a law as contemplated by clause (6) of Article 19. H

p. 664 Copy page pinpoint

A (g) The right to establish and administer an educational institution (by a member of the majority community, religion or linguistic) arises by .-1. necessary implication from Article 30. The Constitution could not have intended to confine the said right only to minorities and deprive the majority communities therefrom.

B {h) The Government or the University cannot insist of stipulate as a condition of recognition/affiliation that the private educational institutions should admit students exclusively on merit. It has been well recognised by ........ this court that one who pays for the education is also entitled to stipulate the manner in which he well admit studenis,. There is no reason why such c a right should not be recognised in the case of the private educational institutions. Moreover, there may be several kinds of private educational institutions; they may be established for achieving certain specified pur- - poses. For example, medical or engineering college may be established to cater to the needs of a particular region or a district. Similarly, another educational institution may have been established by members of a par- A. D ticular community to educate their own children. The Gulburga Medical College m the State of Karnataka, it is pointed out, is established to meet the educational needs in the field of medicine to the students belong to Gulburga, Raichur and Bidar districts, formerly included within the Nizam's dominions and which were included in the State of Karnataka on E the reorganisations of States. Similarly, the Kempe Gowda Medical College ,......, in Karnataka, it is submitted, has been established by members of Vok- kaliga community. Their wishes and objectives have to be respected. There may be yet another institution which" may have been established with the aid of a large donation made by a charitable-minded person e.g., An- F namalai University in Tamil Nadu. If such University stipulates that mem- bers of the founder's family or their nominees will be admitted every year to the extent of a certain percentage, no fault can be found therewith.

(i) By virtue of mere recognition and/or affiliation these private educational institutions do not become instrumentalities of the State within the meaning of Article U of the Constitution. The concept of 'State action' cannot be extended to these colleges so as to subject them to the discipline of Part Ill. It may be a different matter if the institution is in receipt of any aid, partially and wholly, from the State. In such a situation, the command of Article 29{2) comes into play but even that does not oblige the institution to admit the students exclusively on the basis of merit - but only not to

p. 665 Copy page pinpoint

deny admission to anyone any of the grounds mentioned therein. A

52Copy pinpoint52. On the other hand, it is contended by the learned counsel for the respondents as also by the learned counsel for the India Medical Council alid All India Council for Technical Education that: (a) imparting of education has always been recognised in this country from times im- memorial as the religious duty. Both Hinduism and Islam treated it as such. B It has also been recognised as a charitable object. But never has it been recognised as a trade or business. It is a mission, not a trade. Commer- cialisation of education has always been looked upon with dis-favour in this country. As far back as in 1956, the Parliament expressed its intention by enacting the University Grants Commission Act which specified the c prevention of commercialisation of education as one of the duties of the University Grants Commission. The same intention .has been expressed by several enactments made by the Parliament and State Legislatures since then.

--1- (b) Imparting of education is the most important function of the D State. This duty may be discharged by the State directly or through the instrumentality of private educational institutions. But when the State permits a private body or an individual to perform the said function it is its duty to ensure that no one gets an admission or an advantage on account of his economic power to the detriment of a more meritorious candidate. E

( c) The very concept of collecting the cost of the education - that is what the concept of cost-based or self-financing educational institutions means - is morally abhorrent and is opposed to public policy. A capitation fee does not cease to be a capitation fee just because it is called cost-based education or by cal~ng the institution concerned as a self-fmancing institu- F tion. These expressions are but a cover - a mere pretence - for collecting / capitation fee. It is nothing but exploitation. It is an elitist concept basically opposed to the constitutional philosophy, By allowing such education, two classes will come into being. The concept suffers from class bias.

( d) If, for any reason, it is held that a citizen or a person has a right G to establish an educational institution, the said right does not carry with it the right to recognition or the right to affiliation, as the case may be. It has )'-- been repeatedly held by this court that even a minority educational institu- tion has no fundamental right to recognition or affiliation. If so, no such right can be envisaged in the case of majority community or in the case H

p. 666 Copy page pinpoint

A individuals or persons. Once this is so, it is open to the State or the University according recognition or affiliation to impose such conditions as they think appropriate in the interest of fairness, merit, maintenance of standards of education and so on. In short, it is open to the Government or the University to make it a condition of recognition/affiliation that the admission of students, in whichever category it may be, shall be on the basis of merit and merit alone. The institutions obtaining recognition/affiliation will be bound by such condition and any departure therefrom renders the recognition/affiliation liable to be withdrawn.

(e) Even if the Government or the University does not expressly impose such a condition, such condition is implicit by virtue of the fact that in such a situation, the activity of the private educational institution is liable to be termed as 'State action'. The fact that these institutions perform an important public function coupled with the fact that their activity is closely inter-twined with governmental activity, characterises their action as 'State action'. At the minimum, the requirement would be to act fairly in the matter of admission of students and probably in the matter of recruitment· and treatment of its employees as well. These institutions are further bound not to charge any fee or amount over and above what is charged in similiar governmental institutionas. If they need finances, they must find them through donations or with the help of religious or charitable organisations. E They cannot also say that they will first collect capitation fees and with that money, they will establish an institution. At the worst, only the bare running charges can be charged from the students. The capital cost cannot be charged from them.

53Copy pinpoint53. Before we express ourselves upon the rival contentions urged by F the parties, it would be appropriate to notice the relevant statutory provisions:

UNIVERSITY GRANTS COMMISSION ACT:

54Copy pinpoint54. The University Grants Commission Act was enacted by the G Parliament in 1956 to provided for the cordination and determination of standards in Universities and for that purpose to establish a University Grants Commission. Chapter III deals with the powers and functions of the Commission. Section 12 empowers the Commission to take, in consult- ,~ ation with the Universities and other concerned bodies, all such steps as it H may think fit for the promotion and cordination of University education

p. 667 Copy page pinpoint

and for the determination and maintenance of standards of teaching, examination and research in the Universities. Section 12-A is relevant for :>-. our purposes. Clause (a) in Sub-section (1) defines the expression 'affiliation'. It reads:

" 'Affiliation' together with its grammatical variations, in- cludes in relation to a college, recognition or such college, association of such college with, and admission of such · college to the privileges of a University."

Clause (b) defines the expression 'college' in the following words:

j " 'College' means anyinstitution whether known as such or c by any other name which provides for a course of study for -- obtaining any qualification from a University and which in accordance with the rules and regulations of such Univer- sity is recognised as competent to provide for such course -.J___ of study and present students undergoing such course of study for the examination for the award of such qualifica- tion."

Sub-secton (2) empowers the Commission inter alia to regulate the fee chargeable in constituent and affiliated colleges, if such a course is found to be necessary to ensure that "no candidate secures admission to such course of study by reason of economic power and thereby prevents a more meritorious candidate from securing admission to such course of study." It would be appropriate to set out Sub-section (2) in its entirety. It reads: F "Without prejudice to the generality of the provisions of Section if, having regard to, -~ (a) the nature of any course of study for obtaining any qualification from any University, G (b) the types of activities in which persons obtaining such qualifieation are likely to be engaged on the basis of such qualification, ,._ ( (c) the minimum standards which a person possessing such qualification should be able to maintain in his H

668 SUPREME COURTREPORTS (1993] 1 S.C.R.

A work relating to such activities and the consequent need for ensuring, so far as may be, that no candidate secures admission to such course of study by reason of economic power and thereby prevents a more meritorious candidate from securing admission to such · course of study; and B ( d) all other relevant factors,

the Commission is satisfied that it is necessary so to do in the public interest, it may, after consultation with the c University or Universities concerned, specify the regula- tions the matters in respect of which fees may be charged, and the scale of fees in accordance with which fees shall be charged in respect of those matters on and from such - date as may be specified in the regulations in this behalf, by any college proViding for such course of study from or D in relation to any student in connection with his admission to and prosecution of such course of study:

Provided that different matters and different scales of fees may be so specified in relation to different Universities or different classes of colleges or different areas.' E Sub-Section (3) then says that where regulations of the nature referred to in sub-section (2) hav~ been made, no college shall levy or charge fees in excess of what is specified. Sub-section (4) provides the consequence of violation by any college of such regulations. Sub-section F (5) says that violation shall also mean dis-affiliation. Section 14 prescribes the consequences of failure of Universities to comply with the recommen- dations of the Commission. It includes withholding of funds. Sub-section (1) of Section tl. which occurs in Chapter IV dedares that "the right of conferring or granting degree ~hall be exercised only by a University established or incorporated by or under a Central Act, a provincial Act or G a State Act or an institution deemed to be a University under S1>ction 3 or an institution specially empowered by an Act of Parliament to confer or grant degrees." Sub-section (2) emphatically declares that "save as provided in Sub-section (1), no person or authority shall confer or grant or hold himself or itself out as entitled to confer or grant any degree.' Sub-section H (3) defines the expression 'degree'. It means 'any such degree as may, with

UNNJ KRISHNAN v. STATE OF AP. [REDDY, J.) 669

the previous approval of the Central Government, by specified in this A behalf by the ComDiission by notification in the official gazette." S~on 23 ';.. prohibits the use of the word 'University' in the name of any institution other than a University established or incorporated under an enactment or a deemed University. Section 24 provides for penalties for violation of Sections 22 and 23. Section 25 confers the rule making power upon the B Central Government while Section 26 confers the regulation making power upon the Commission.

;_ INDIAN MEDICAL COUNCIL ACT: ''

55Copy pinpoint55. The Indian Medical Council Act, 1956 was enacted by the par- c liament to provide for the reconstitution of the Medical .Council of India and the maintenance of a medical register for India and for matters connected therewith. The expression 'recognised medical qualification' is defined in clause (h) of Section 2 to mean 'any.of the medical qualifications .. "'-· included in the schedules.' The expression 'approved institution' has been D defined in clause (a) to mean 'a hospital, health centre or every such institution recognised by a University as an institution in which a person may undergo training, if any, required by bis course of study before the award of any medical qualification to him.' Section 11 declares that the

- ~' medical qualifications granted by any University or medical institution in India which are included in the first schedule to the Act shall be recognised medical qualifications for the purposes of the Act. It also provides the proeedure for any University or Medical institution applying to the Central Government for recognising new .or other qualifications. Section 13 says E

that the medical qualifications granted by medical institutions in India not included in the First Schedule but included in Part I of the Third Schedule F shall also be recognised medical qualifications for the purposes of the Act. Section 19 provides for withdrawal of recognition in cases where the .>.. Council finds lowering of standards of proficiency, knowledge or skill. Section 21 provides for the maintenance of an Indian Medical ·Register. Section 27 says that a person registered in' the Indian Medical Council Register shall be entitled to practice as a medical practitioner in any part G of India and to recover in due course of law in respect of such practice any expenses, charges or fees to which he is entitled. Section 32 confers ~ the rule making power upon the Government while Section 33 confers the ( regulation making power upon the Council. The First Schedule mentions the names of the Universites and the recognised medical qualifications H

p. 670 Copy page pinpoint

A awarded by them. Same is done by Part I of the Third Schedule.

ALL INDIA COUNCIL FOR TECHNICAL EDUCATION ACT, 1987:

56Copy pinpoint56. This Act has been made by the Parliament for the establishment B of the 'All India Council for Technical Education' with a view to the proper planning and cordinated development of the technical education system throughout the country, promotion of qualitative improvement of such education and other allied matters. Section 3 of the Act provides for the establishment cf the Council while Section 10 specifies the functions of the C Council. Apart from directing generally that the Council shall take all such steps as it may think fit for ensuring co-ordinated and integrated develop- ment of technical education and maintenance of standards, the Act specifi- cally empowers the Council, inter alia, to "Gl fix norms and guidelines for charging tuition and other fees; (k) grant approval for starting new techni- D cal institutions and for introduction of new cotirses or programmes in consultation with the agencies concerned, and (n) take all necessary steps to prevent commercialisation of technical education." It is true, there is no express provision in the Act which says that no engineering college or any other college or institution imparting technical education shall be estab-

E lished except with the permission of the Council. But this may be for the reason that such a power was intended to be exercised by the Council itself if it thinks necessary to do so. We are of the opinion that the vast powers conferred upon the Council by Section 10, including those specified above, do extend to and entitle it to issue an order to the above effect. It can also - say that even in the existing institutions, no new course, faculty or class shall be opened except with its approval. It can also pass appropriate directions to the existing institutions as well for achieving the purposes of the Act. Such an order may indeed be necessary for a proper discharge of the wide-ranging functions conferred upon the Council.

57Copy pinpoint57. It is brought to our notice by the learned counsel appearing for the Council that the Council has evolved a proforma of undertaking which should be executed by the person-in-charge of any ffistitution proposed to be established stating inter a/ia that such institution will not only observe the several orders and instructions issued by the Council but it shall not charge any capitation fee from the students/guardians of the students in any form. The proforma further stipulates that in the event of non-com-

UNNI KRISHNAN v. STATE OF AP. (REDDY, J.) 671

pliance of any of the orders and directions issued by the Council or the terms of the undertaking, it shall be open to the Council to take ap- propriate action including withdrawal of its approval or recognition, which automatically entails stoppage of financial grant or assistance from the Central and State Government. It is also brought to our notice that the Council has issued guidelines for admission to Engineering Degree and B Engineering Diploma programmes in G.S.R. 320 dated 15th June, 1992 in exercise of the power conferred upon it by Section 23(1) of the Act (Section 23 of the Act confers the regulation making power upon the Council).

STATE ENACTMENTS: c

58Copy pinpoint58. As mentioned in Part I of this judgment, the States of Andhra Pradesh, Karnataka, Maharashtra and recently the state of Tamil Nadu have all enacted legislation prohibiting the charging of capitation fee. We -~ had also set out the Preamble to the Andhra Act which Preamble is to be found alomst in every such enactment. We had referred to the AP. D Education Act, 1982 as well which provides that no educatonal institution shall be established in the State except with the permission of the com- petent authority

INDIAN MEDICAL COUNCIL (AMENDMENT) ORDINANCE, 1992: E

59Copy pinpoint59. The last of the statutory provisions to be noticed is of great relevance herein viz., the Indian Medical Council (Amendment) Or- dinance, 1992 being Ordinance No. 13 of 1992 issued by the President of. India on 27th August, 1992. By this Ordinance, Section 10-A to 10-C have been added besides amending Section 33. Section 10-A provides that notwithstanding anything contained in the Indian Medical Council Act or any other law for the time being in force, no medical college shall be established nor any new or higher course of study or training opened in an existing institution nor shall it increase its admission capacity in any course of study or training, except with the previous permission of the Central Government obtained in accordance with the provisions of the said section. The section prescribes the procedure for submitting the application, the matters which the Central Government shall take into account while con- sidering the said application, the obligatory consultation with the Council and the manner in which the application shall be disposed of. It also H

p. 672 Copy page pinpoint

A provides the matters which the Council should take into consideration while making its recommendation to the Central Government. Suffice it to mention that the several matters which the Council and the Central ~ Government are directed to take into consideration are designed to ensure that a properly equipped institution is in place before it is permitted to ,, I' impart medical education. Section 10-B provides for non-recognition of B medical qualifications awarded by institutions which have been established without the previous permission of the Central Government or by an institution which violates any of the conditions in Section 10-A. Section 10-C provides that if any person has established a medical college or has --"- opened a new or higher course of study in an existing college, he shall, c within one year from the date of the commencement of the Ordinance, seek permission of the Central Government in accordance with Section 10-A.

GROUND REALITY; D ,.. '

60Copy pinpoint60. Notwithstanding the fact that education is the second highest sector of budgeted expenditure after the Defence, the outlay on education is woefully inadequate io the needs of the people. Whereas many other countries spend six to eight per cent of theif Gross National Product" on education, our expenditure on education is only three per cent of the Gross E National Product. Seventy five to eight per cent of the expenditure goes in ......, paying the salaries of the teachers and other connected staff. These are the statements made in the Government of India publication "Challenge of Education - a policy perspective" referred to hereinbefore. Even so, on account of lack of proper supervision, lack of self-discipline and commit!- F ment, the quality and standard of instruction in most of the Government schools and colleges - except the profeesional colleges - is woeful. This has provided an occasion and an opportunity to private educational institutions to fill the void, both in terms of meeting the need and more particularly in the matter of quality of instruction. Because, the State is in no position to devote more resources and also because the need is constantly growing, it is not possible to do without private educational institutions. In this context, it is appropriate - nay, necessary, to notice the stand of the Government of India in this behalf. It is thus: the Central Government does not have _,._ the resources to undertake any additional financial responsibility for medi- cal or technical education; it is unable to aid any private educational institution financially at a level higher than at present; therefore the policy

p. 673 Copy page pinpoint

of the Central Government is to involve private and voluntary efforts in the eduction sector in conformity with accepted norms and goals; however, the private educational institutions cannot be compelled to charge only that fee as is charged in Governmental institutions; in 1986, the Central Govern- ment has evolved the 'New Education Policy' - according to it, 'in the interests of maintaining the standards and for several other valid reasons, the commercialisation of technical and professional education will be curbed. An alternative system will be devised to involve private and volun- tary effort in this section of education, in conformity with accepted norms and goals.' (vide paras 6-20); the amendments proposed to I.M.C. Act, 1956 in 1987 have not materialised so fat; so far as engineering colleges are concerned, permission is being granted by the A.1.C.T.E. subject to the condition that they do not collect any capitation fee; according to the guidelines issued by the A.l.C.T.E., the technical colleges will be permitted a to recover 'only graded percentage of the average cost of student educa- tion, depending on whether the institution is Government-funded, Govern- ment-aided or un-aided.' (According to the these guidelines, it is stated, D ~.. the students will be asked to pay 20% of the cost in Government-funded institutions, 30-35% in Government-aided and 70% in un-aided institu- tions). It is fmally submitted that:

'(a) Conferring unconditional and unqualified right to education at all levels to every citizen involving a consitutional obligation on the State E to establish educational institutions either directly or through State agen- cies is not warrante.d by the Constitution besides being unrealistic and impractical.

(b) When the Government grants recognition to private educational institutions it does not create an agency to fulfil its obligations under the F Constitution and there is no scope to import the concept of agency in such a situation.

(c) The principles laid down in Mohini Jain's case do require recon- sideration. G (d) It would be unrealistic and unwise to discourage private initiative .in providing educational facilities particularly for higher education. The private sector should be involved and indeed encouraged to aljgDlent the much needed resources in the field of education, thereby making as much progress as possible in achieving the Constitutional goals in this respect. H·

p. 674 Copy page pinpoint

A (e) At the same time, regulatory controls have to be continued and strengthened in order to prevent private educational insitutions from com- mercialising education. r --(,.

(t) Regulatory measures should be maintained and strengthened so as to ensure that private educational institutions maintain minimum stand- B ards and facilities.

(g) Admissions within all groups and categories should be based on merit. There may be reservation of seats in favour of the weaker sections of the society and other groups which deserve special treatment. The norms C for admission should be pre-determined and transparent."

The stand of the State Governments of Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu is no different. -

61Copy pinpoint61. The hard reality that emerges is that private educational insitu- D tions are a necessity in the present day context. It is not possible to do without them because the Governments are in no position to meet the demand - particularly in the sector of medical and technical education which call for substaotial outlays. While education is one of the most important functions of the Indian State it has no monopoly therein. Private E educaitonal institutions - including minority educational institutions - too have a role to play.

62Copy pinpoint62. Private educational institutions may be aided as well as un-aided. Aid given by the Government may be cent per cent or partial. So far as aided institutions are concerned, it is evident, they have to abide by all the rules and regulations as may be framed by the Government and/or recog- nising/affiliating authorities in the matter of recruitment of teachers and staff, their conditions of service, syllabus, staodard 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 aoy 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 whereever they go; public funds cannot be donated for private purposes. The element of public character necessarily mean.. a fair conduct in all respects consistent with the constitutional mandate of Article 14 and

{ UNNI KRISHNAN v. STATE OF A.P. (REDDY, J.] 675

15. All the Governments and other authorities in charge of granting aid to educational institutions shall expressly provide for such conditions (among others), if not already provided, and shall ensure compliance with the same. Again aid may take several forms. For example, a medical college does necessarily require a hospital. We are told that for a 100 seat medical college, there must be a fully equipped 700-bed hospital. Then alone, the medical college can be allowed to function. A private medical college may not have or may not establish a hospital of its own. It may request the Government and the Government may permit it to avail of the services of )._ a Government hospital for the purpose of the college free of charge. This would also be a form of aid and the conditions aforesaid have to be imposed - may be with some relaxation in the matter of fees chargeable - C and observed. The Government (Central and State) and all other authorities granting aid shall impose such conditions forthwith, if not already imposed. These conditions shall apply to existing as well as proposed private educational institutions. ' -J... D

63Copy pinpoint63. So far as un-aided institutions are concerned, it is obvious that they cannot be compelled to charge the same fee as is charged in Governmental institutions. 1f they do so voluntarily, it is perfectly welcome but they cannot be compelled to do so, for the simple reason that they have to meet the cost of imparting education from their own resources - and the main source, apart from donations/charities, if any, can only be the fees E collected from the students. It is here that the concepts of 'self-financing educational institutions' and 'cost-based educational institutions' come in. This situation presents several difficult problems. How does one determine the 'cost of education' and how and by whom can it be regulated? The cost of education may very, even within the same faculty, from institution to f insititution. The facilities provided, equipment, infrastructure, standard and quality of education obtaining may vary from institution to institution. The court cannot certainly do this. It must be done by Government ·or University or such other authority as may be designated in that behalf. Even so, some questions do arise - whether cost-based education only means running charges or can it take in capital outlay? Who pays or who G can be made to pay for establishment, expansion and irnprovement/dever- sification of a private educational institutions? Can an individual or body of persons first collect amounts (by whatever name called) from the intending students and with those monies establish an institution - an activity similar to builders of apartments in the cities? How much should H

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A the students coming in later years pay? Who should work out the economics of each institution? Any solution evo)ved has to take into account all these variable factors. But one thing is clear: commercialisation of education cannot and should not be permitted. The Parliament as well as State Legislatures have expressed this intention in unmistakable terms. Both in the light of our tradition and from the stand-point of interest of B general public, commercialisation is positively harmful; it is opposed to public policy. As we shall presently point out, this is one of the reasons for holding that imparting education cannot be trade, business or profession. The question is how to encourage private educational institutions without a/lowing them to commercialise the education? This is the troublesome c question facing the society, the government and the courts today. But before we proceed to evolve a scheme to meet this problem, it is necessary to answer a few other questions raised before us.

RIGHT TO ESTABLISH AN EDUCATIONAL INSTITUTION:

64Copy pinpoint64. Article 19(1)(g) of the Constitution declares that all citizens of this country shall have the right "to practice any profession, or to carry on any occupation, trade on business". Clause (6) of Article 19, however, says:

'Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes or prevents the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exe1 cise of the right conferred by the said clause and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to or prevents the State from making any law relating to:

(i) the professional or technical qualifications neces- sary for practising any profession or carrying on any oc- cupation, trade or business, or G (ii) carrying on by the State, or by a corporation owned or controlled by the State or any trade, business, industry or service whether to the exclusion, complete or partial, of citizens or otherwise."

H While we do not with to express ·any opinion on the question whether

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the right to establish an educational institution bn-0e said toclie' carrying A ' _)... on any "occupation" within the meaning of Article 19(1)(g), - perhaps, it is - we are certainly of the opinion that such activity can neither be a trade or business nor can it be a profession within the meaning of Article 19(1)(g). Trade or business normally connotes an activity carried on with a profit motive. (Education has never been commerce in this country. B Making it one is opposed to the ethos, tradition and sensibilities of this nation. The argument to the contrary has an unholy ring to it. Imparting of education has never been treated as a trade or business in this country since times inunemorial. It has been treated as a religious duty. It has been treated as a charitable activity) But never as trade or business. We agree c with Gajendragadkar, J. That "education in its true aspect is more a mission and a vocation rather than a profession or trade or business, however wide may be the denotation of the two latter words...... "(See University of Delhi [1961) 1 SCR 703). The Parliament too has manifested its intention repeatedly (by enacting the U.G.C. Act, I.M.C. Act and A.I.C.T.E. Act) _.i_ D that commercialisation· of education is not permissible and that no person shall be allowed to steal a march over a more meritorious candidate because of his economic power. The very same intention is expressed by the Legislatures of Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu in the Preamble to their respective enactments prohibiting charging of capitation fee.

65Copy pinpoint65. We are, therefore, of the opiniori, adopting the line of reasoning in State of Bombay v. R.M.D.C., 1957 S.C.R. 874, that imparting education cannot be treated as a trade or business. Education cannot be allowed to be converted into commerce nor can the petitioners seek to obtiiin the said result by relying upon the wider meaning of "occupation''. The content of the expression "occupation" has to be ascertained keeping in mind the fact

- ~ that clause (g) employs all the four expressions viz., profession, occnpation, trade and business. Their fields may overlap, but each of them does certainly have a content of its own, distinct from the others. Be that as it may, one thing is clear - imparting of education is not and cannot be G

allowed to become commerce. A law, existing or future, ensuring against it would be a valid measure within the meaning of clause (6) of Article 19. ~·- We cannot, therefore, agree with the contrary proposition enunciated in 1968 Bombay 91, 1984 A.P. 251 and 1986 Karnataka 119. H

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66Copy pinpoint66. The learned counsel for the petitioners relied upon certain decisions in support of their contention that right to establish an educa- tional institution flows from Article 19(1)(g). The first is in Bharat Sevash- ram Sangh v. State of Gujara~ [1986] 3 S.C.R. 602, a decision of a Bench consisting <if E.S. Venkataramiah and Ranganath Misra, JJ. At page 609, B while dealing with Section 33 of the Gujarat Secondary Education Act enpowering the Government to take over an educational institution in certain situations for a period not exceeding five years, the learned Judges observed that "the said provision is introduced in the interest of the general public and does not in any way affect prejudically the fundamental right of C the management guaranteed under Article 19(1)(g) of the Constitution." Actually, the issue now before us was not raised or considered in the said decision. Moreover, the decision does not say whether it is a profession, occupation, trade or business.

Reliance is then placed upon the Seven Judge Bench decision in D Bangalore Water Supply and Sewerage Board v. Rajappa, (1978] 3 S.C.R. ;... 'lfJ7. Krishna Iyer, J. dealing with the meaning of the expression 'industry" in l.D. Act observed that even educational institutions would fall within the purview of "Industry''. We do not think the said observation in a different context has any application here. E So far as the other decision in State of Maharashtra v. Lok Shikshan Swistha, (1971] Suppl. S.C.R. 879 is concerned, all that the court held there was that is view of the operation of emergency, Article 19 is not available to the petitioners seeking to establish an educational institution. Article 358 was held to be a bar. But the decision does not say that such a right does inhere in the petitioners.

67Copy pinpoint67. We are also of the opinion that the said activity cannot be called a 'profession' within the meaning of Article 19(1)(,g). It is significant to notice the words 11 to practice any profession11 • Evidently, the reference ts to such professions as may be practised by citizens i.e., individuals. (See N.U.C. Employees v. Industrial Tribuna~ A.l.R. 1962 S.C. 1080 at 1085). Establishing educational institutions can by no stretch of imagination be treated as "practising any profession". Teaching may be a profession but . --I establishing an institution employing teaching and non-teaching staff, procuring the necessary infrastructure for running a school or college is

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not 'practising profession'. It may be anything but not practising a profes- A sion. We must make it clear that we have not gone into the precise meaning an content of the expressions profession, occupation, trade or business for the reason that it is not necessary for us to do so .in view of the approach we are adopting hereinafter, which would be evident from the succeeding paragraphs. Our main concern in the entire preceding discussion is only to B establish that the activity of establishing and/or running an educational institution cannot be a matter of commerce.

68Copy pinpoint68. For the purpose of these cases, we shall proceed on the assump- tion that a person or body of persons has a right to establish an educational institution in this country. But this right, we must make it clear, is not an c absolute one. It is subject to such law as may be made by the State in the interest of general public.

69Copy pinpoint69. We must, however, make it clear, and which is of crucial impor- tance herein, that the right to establish an educationcal institution does not cany with it the right to recognition or the right to affiliation. In St. Xaviers College v. Gujarat, (1975] 1 S.C.R. 173 it has been held uniformly by all the nine learned Judges that there is no fundan1ental right to affiliation. Ray, C.J., stated that this has been "the consistent view of this court." They also recognised that recognition or affiliation is essentiaJ for a meaningful exercise of the right to establish and administer educational institutions. Recognition may be granted either by the Government or any other authority or body empowered to accord recognition. Similarly, affiliation may be granted either by the University or any other academ;c or other body empowered to grant affiliation to other educational institutions. In other words, it is open to a person to establish an educational institution, admit students, impart education, conduct examination and award certifi- cates to them. But he, or the educational institution has no right to insist that the certificates or degree (if they can be called as such) awarded by such institutio.1 should be recognised by the State - much less have they the right to say that the students trained by the institution should be admitted to examinations conducted by the University or by the Govern- ment or any other authority, as the case may be. The institution has to seek such recognition or affiliation from the appropriate agency. Grant of recognition and/or affilliation is not a matter of course nor is it a formality. Admission to the privileges of a University is a power to be exercised with H

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A great care, keeping in view the interest of the general ~ublic and the nation. . It is a matter of substantial significance - the very life-blood of a private educational institution. Ordinarily speaking, no educational institution can run or survive unless it is recognised by the Government or the appropriate authority and/or is affiliated to one or the other Universities in the country. Unless it is recognis~d anil!or affiliated as stated above, it's certificates will B be of no use. No one would join such educational insitution. As a matter of fact, by virtue of the provisions of the U.G.C. Act, noticed hereinabove, no educational institution in this country except a University is entitled t3 award degrees. It is for this reason that all the private educational institu- tions seek recognition and/or affiliation with a view to enable them to send c the students trained by them to appear at the examinations conducted by the Government/University. The idea is that if such .students pass the said examination, the Government/University will award its degree/diploma/cer- tificate to them. These educational institutions follow the syllabus prescribed by the Government/University, have the same courses of study, follow the same method of leaching and training. They do not award their own degrees/qualifications. They prepare their students for Univer- sity/Government examinations, request the University/Government to per- mit them tc appear at the examinaitons conducted by them and to award the appropriate degrees to them . Clearly and indubitably, the recongnised/affiliated private educational institutions, supplement the function performed by the institutions of the State. Theirs is not an inde- pendent activitr but one_closdy alli~d to and supplementa! to th7 activitx of the State. In the abme circumstances, it is idle to contend that imparting of education is a business like any other business or that it is an activity F ·akin to any other activity like building of roads, bridges etc. In short, the position is this: No educational institution except an University can award degrees (Sections 22 and 23 of the U.G.C. Act). The private educational institutions cannot award their own degrees. Eve.I if they award any certificates or other testimonials they have no practical value inasmuch as G they are net good for obtaining any employment under the State or for admission into higher courses of study. The private educational institutions merely supplement the effort of the State in educating the people, as explained above. It is not an independent activity. It is an activity sup- plemental to the principal activity carried on by the State. No private education institution can survive or subsist without recognition and/or H

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affiliation. The bodies which grant recognition and/or affiliation are the A authorities of the State. Jn such a situation, it is obligatory - in the interest '> of general public - upon the authority granting recognition or affiliation to insist upon such conditions as are appropriate to ensure not only education of requisite standard but also fairness and equal treatment in the matter of admission of students. Since the recognising/affiliating authority is the · B 'State' it is under. an obligation to impose such conditions as part of its duty enjoined upo~ it by Article 14 of the Constitution. It cannot allow itself or its power and privilage to be used unfairly. The incidents attaching to the main activity attach to supplemental activity as well. Affiliation/recognition is not there for anybody to get it gratis or unconditionally. In our opinion, no Government, authority or University is justified or is entitled to grant c recognition/affiliation without imposing such conditions. Doing so would ~mo,;nt to abdicating its obligations enjoined upon it by Part III; its activity is bound to be characterised as unconstitutional and illegal. To reiterate,. what applies to the main activity applies equally to suppleme11tal activity. The State cannot claim immunity from the obligations arising from Articles 14 D and 15. If so, it cannot confer such immunity upon its affiliates. Accord- ingly, we have evolved - with the help of the counsel appear~ng before us and keeping in view the positive features of the several Central and State enactments referrred to hereinbefore - the following scheme which every authority granting_ recognition/affiliation shall impose upon the institutions seeking such recognition/affiliation.

The idea behind the scheme is to eliminate discretion in the manage- ment altogether in the matter of admission. It is the discretion in the matter of admission that is at the root of the several ills complained of. It is the discretion that has mainly led to the commercialisation of education. 'Capitation fee' means charging or collecting amount beyond what is permitted by law; all the Acts have defined this expression in this sense. We must strive to bring about a .situation where there is no room or occasion for the management or anyone on its behalf to demand or collect any amount beyond what is permitted. We must clarify that charging the permitted fees by the private educational institutions - which is bound to be higher than the fees charged in similar governmental institutions by itself cannot be characterised as capitation fees. This is the policy underlying all the four States enactments prohibition capitation fees. All of them recog- nise the necessity of charging higher fees by private educational institutions. H

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A They seek to regulate the fees that can be charged by them - which may be called permitted fees - and to bar them from collecting anything other than the permitted fees, which is what 'Capitation fees' means. Our attempt in evolving the following scheme precisely is to given effect to the said legislative policy. It would be highly desirable if this Scheme is given a B. statutory shape by incorporating it in the Rules that may be framed under these enactments.

SCHEME

70Copy pinpoint70. The scheme evolved herewith is in the nature of guidelines which the appropriate Governments and recognising and affiliating authorities c shall impose and implement in addition to such other conditions and stipula- tions as they may think appropriate as conditions for grant of permission, grant of recognition or grant of affiliation, as the case may be. We are - confining the scheme - for the present - only to 'professional colleges.'

D The expression 'professional colleges' in this scheme includes:

(i) medical colleges, dental colleges and other institutions and colleges imparting Nursing, Pharmacy and other cour- ses allied to Medicine, established and/or run by private education institutions, E (ii) colleges of engineering and colleges and institutions imparting technical education including electronics, com- puter sciences, established and/or run by private educa- tional institutions, and F (iii) such other colleges to which this scheme is made applicable by the Government, recognising and/or affiliat- ing authority."

The expression 11 appropriate authorityn means the Government, G University or other authority as is competent to grant permission to estab- lish or to grant recognition to a professional college.

The expression 'competent authority' in this scheme means the Government/University or other authority, as may be designated by the Government/University or by law, as is competent to allot students for admission to various professional colleges in the given State. ,

UNNI KRISHNAN v. STATE OF AP. [REDDY, J.) 683

It is made clear that only those institutions which seek permission to establish and/or recognition and/or affiliation from the appropriate authority shall alone be made bound by this scheme. This scheme is not applicable to colleges run by Government or to University colleges. In short, the scheme hereinafter mentioned shall be made a condition of pe,mission, recognition or affiliation, as the case may be. For each of them viz., ~rant of permission, grant of recognition, grant of affiliation, these conditions shall necessarily be imposed, in addition to such other condi- tions as the appropriate authority may think appropriate. No Private eduea- ).. tional institutaion shall be allowed to send its students to appear for an examination held by auy 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 afftliated to the appropriate University, as the case may be.

(1) A professional college shall be permitted to be established and/or administered only by a Society registered under the Societies Registration Act, 1860 (or the corresponding Act, if any, in force in a given State), or by a Public Trust, religious or charitable, registered under the Trusts Act, Wakfs Act (or the correspondmg legislation, if any, e.g., Tamil Nadu Religious and Charitable Endowments Act and A.P. Religious and Charitable Endowments Act). No individual, firm, company or other body of individuals, by whatever appellation called - except those mentioned above - will be permitted to establish and/or administer a professional college. All the existing professional colleges which do not conforrn to the above norm shall be directed to take appropriate steps to comply with the same within a period of six months from today. In default whereof, recog- F nition/afftliation accorded shall stand withdrawn. (In this connection refer- ence may be had to Rule 86(2) of Maharashtra Grant-in-aid code (referred to in State of Maharashtra v. Lok Shikshan Sanstha, (1971) Suppl. S.C.R. 879 which provided that schools which are not registered under the Societies Registration Act, shall not be eligible for grant. Grant of recog- nition and afftliation is no less significance). G

(2) Atleast, 50% of the seats in every professional college shall be filled by the nominees of the Government or University, as the case may be, hereinafter referred to as "free seats''. These students shall be selected on the basis of merit determined on the basis of a common entrance H

">- 684 SUPREME COURT REPORTS [1993] 1 S.C.R. )'

A examination where it is held or in the absence of an entrance examination, by such criteria as may be determined by the competent authority or the __)_ appropriate to authority, as the case may be. It is, however, desirable and appropriate have a common entrance exam for regulating admissions to these colleges/institutions, as is done in the State of Andhra Pradesh. The remaining 50% seats (payment seats) shall be filled by those candidates B who are prepared to pay the fee prescribed therefor and who have com- plied with the instructions regarding deposit and furnishing of cash security/Bank guarantee for the balance of the amount. The allotment of students against payment seats shall also be done on the basis of inter se merit determined on the same basis as in the case of free seats. There shall c be no quota reserved for the management or for any family, caste or community which may have established such college. The criteria of ...., eligibility and all other conditions shall be the same in respect of both free seats and payment seats. The oniy distinction shall be the requirement of .. higher fee by the 'payment students'. The Management of a professional college shall not be entitled to impose or prescribe any other and further eligibility criteria or condition for admission either to free seats or to payment seats. It shall, however, be open to a profeesional college to provide for reservation of seats for constitutionally permissible classes with the approval of the affiliating University. Such reservations, if any, shall be made and notified to the competent authority and the appropriate authority atleast one month prior to the issuance of notification calling for applications for admission to such category of colleges. In such a ease, the competent authority shall allot students keeping in view the reservations provided by a college. The rule of merit shall be followed even in such reserved categories. F (3) The number of seats available in the professional colleges (to which this scheme is made applicable) shall be fixed by the appropriate ~

authority. No professional college shall be permitted to increase its strength except under the permission or authority granted by the appropriate authority. G (4) No professional college sball call for applications for admission separately or individually. All the applications for admission to all the seats available in such colleges shall be called for by .the competent authority alone, along with applications for admission to Government/University H colleges of similar nature. For example, there shall be only oqe notification

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