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

by the competent authority calling for applications for all the medical A colleges in the State - and one notification for all the engineering colleges in the State and so on. The application forms for admission shall be issued by the competent authority (from such offices, centres and places as he may direct). The application form shall contain a column or a separate part wherein an applicant can indicat~ whether he wishes to be admitted against B a payment seat and the order of preference, up to three professional colleges. I

(5) Each professional college shall intimate the competent authority, the State Government and the concerned University in adv.ance the fees chargeable for the entire course commencing that academic year. The total fees shall be divided into the number of years/semesters of study in that course. In the first instance, fees only for the first year/semester shall be collected The payment students will be, however, required to furnish either cash security or bank gurantee for the fees payable for the remaining years/semesters. The fees chargeable, in each professional college shall be subject to the ceiling prescribed by the appropriate authority or by a competent Court. The competent authority shall issue a brochure, on payment of appropriate charges, along with the application form for ad- mission, giving full particulars of the courses and the number of seats available, the names of the collegec their location and also the fees chargeable by each professional college. The brochure will also specify the minimum eligibility conditions, the method of admission (whether by entrace test or otherwise) and other relevant particulars.

(6) (a) Every State Government shall forthwith constitute a Commit- tee to fix the ceiling on the fees chargeable by a professional college or class of p~ofessional colleges, as the case may be. The Committee shall consist of a Vice-Chancellor, Secretary for Education (or such Joint Secretary, as he may nominate) and Director, Medical Education/Director Technical Education. The committee shall make such enquiry as it thinks appropriate. It shall, however, give opportunity to the professional colleges (or their association(s), if any) to place such material, as they think fit. It G shall, however, not be bound to give any personal hearing to anyone or follow any technical rules of law. The Committee shall fix the fee once ?- .. every three years or at such longer intervals, as it may think appropriate.

(b) It would be appropriate if the U.G.C. frames regulations under H

686 SUPREME COURT REPORTS [1993] l S.C.R.

A Section 12A (3) of the U.G.C. Act, regulating the fees which the affiliated colleges, operating on no-grant-in-aid basis, are entitled to charge. The Council for Technical Education may also consider the advisability of issuing directions under Section 10 of the A.l.C.T.E. Act regulating the fees that may be charged in private unaided educational institutions imparting technical education. The Indian Medical Council and Central government may also consider the advisability of such regulation as a condition for grant of permission to new medical colleges under Section 10-A and to impose such a condition on existing colleges under Section 10-C.

(c) The several authorities mentioned in sub-paras (a) and (b) shall decide whether a private educational institution is entitled to charge only that fee as is required to run the college or whether the capital cost involved in establishing a college can also be passed on to the students and if so, in what manner. Keeping in view the need, the interest of general public and of the nation, a policy decision may be taken. It would be more appropriate if the Central Government and these several authorities )o.-·. (U.G.C., l.M.C. and A.I.C.T.E.) cordinate their efforts and evolve a broad- ly uniform criteria in this behalf. Until the Central Government, U.G.C., l.M.C. and A.l.C.T.E. issue order/regulations in this behalf, the committee referred to in the sub-para (a) of this para shall be operative. In other words, the working and orders of the committee shall be subject to the orders/regulations, issued by Central Government, U.G.C., I.M.C. or A.l.C.T.E., as the case may be.

(d) We must hasten to add that what we have said in this clause is merely a reiteration of the duty- nay, obligation - placed upon the Govern- F ments of Andhra Pradesh, Maharashtra, Karnataka and Tamil Nadu by their respective legislatures - to wit, Section 7 of Andhra Pradesh Act 5 of 1983, Section 4 of Maharashtra Act 6 of 1988, Section 5 of Karnataka Act of 1984 and Section 4 of Tamil Nadu Act 57 of 1992. Other States too may have to have similar provisions, carrying statutory force.

G (7) Any candidate who fulfils the eligibility c011ditions would be entitled to apply for admission. After the free seats in profe;;sional colleges are filled up, atleast 10 days' time will be given to the candidates (students) to opt to be admitted against payment seats. The candidates shall be .. -\ entitled to indicate their choice for any three colleges (if available). In such H a case, he shall comply with the deposit and cash security/Bank guarantee

p. 687 Copy page pinpoint

- taking the institution charging the highest fees as the basis - within the said period of ten days. If he is admitted in an institution, charging less fee, ~· the difference amount shall be refunded to him. (The cash security or Bank guarantee shall be in favour of the competent authority, who shall transfer the same in favour of the appropriate college if that student is admitted).

(8) The results of the entrance examination, if any, held should be published atleast in two leading newspapers, one in English and the other in vernacular. The payment candidates shall be allotted to different profes- ). sional colleges on the basis of merit-cum-choice. The allotment shall be made by the competent authority. A professional college shall be bound to admit the students so allotted. The casual vacancies or unfilled vacancies, c if any, shall also be filled in the same manner. The management of a professional college shall not be permitted to admit any student other than the one allotted by the competent authority - whether against free seat or payment seat, as the case may be. It is made clear that even in the matter of reserved categories, if any, the principle of inter se merit shall be -~ followed. All allotments made shall be published in tw'l leading newspapers D as aforesaid and on the notice boards of the respective colleges and at such other places as the comptent authority may direct, along with the marks obtained by each candidates in the relevant entrance test or qualifying examination, as the case may be. No r<ofessional college shall be entitled to ask for any other or further payment or amount, under whatever name E ~. it may be called, from any student allotted to it - whether against the free seat or payment seat.

(9) After making the allotments, the competent authority shall also prepare and publish a waiting list of the candidates along with the marks obtained by them in the relevant test/examination. The said list shall be F followed for filling up any casual vacancies or 'drop-out' vacancies arising after the admissions are finalised. These vacancies shall be filled until such date as may be prescribed by the competent authority. Any vacancies still remaining after such date can be filled by the Management. G It is made clear that it shall be open to the appropriate authority and the competent authority to issue such further instructions or directions, as they may think appropriate not inconsistent with this scheme, by way of /- elaboration and elucidation.

The scheme shall apply to and govern the admissions to professional H

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A colleges commencing from the academic year 1993-94. We are aware that until the commencement of the current academic _--<( year, the Andhra Pradesh was following a somewhat different pattern in the matter of filling the seats in private unaided engineering colleges. Though all the available seats were being filled by the allottees of the B Convenor (State) - and the managements were not allowed to admit any student on their own - a uniform fee was collected from all the students. The concepts of 'free seats' and 'payment seats' were therefore not relevant in such a situation - all were payment seats only. We cannot say that such _'"'- a system is constitutionally not permissible. But our idea in devising this C scheme has been to provide more opportunities to meritorious students, who may not be able to pay the enhanced fee prescribed by the government for such colleges. The system devised by us would mean correspondingly more financial burden on payment students whereas in the aforesaid system (in vogue in Andhra Pradesh) the financial burden is equally distributed among all the students. The theoretical foundation for our method is that D a candidate/student who is stealing a march over his compatriot on account ""- - of his economic power should be made not only to pay for himself but also to pay for another meritorious student. This is the social justification behind the fifty per cent rule prescribed in clause (2) of this scheme. In the interest of uniformity and in the light of the above social theory, we E direct the State of Andhra Pradesh to adhere to the system derived by us.

71Copy pinpoint71. In view of the above, we do not think it necessary to go into or answer Question No. 3. In our opinion, the said question requires debate in a greater depth and any expression of opinion thereon at this juncture is not really warranted. F PARTW

VALIDITY OF SECTION 3-A OF THE ANDHRA PRADESH EDUCATIONAL INSTITUTIONS (REGULATION OF ADMISSION G AND PROHIBITION OF CAPITATION FEE) ACT, 1983.

72Copy pinpoint72. Section 3-A of the aforesaid Act, as introduced by the Andhra Pradesh Amendment Act 12 of 1992, read as follows:

"Notwithstanding anything contained in Section 3, but sub- H ject to such rules as may be made in this behalf and the

UNNI KRISHNAN ,,_ v. STATE OF AP. (REDDY, J.] 689

Andhra Pradesh Educational lnstitutions (Regulation of admission) Order, 1974, it shall be lawful for the manage- ment of any unaided private engineering, college, medical college, dental college and such other class, of unaided educational institutions as may be notified by the Govern- ment in this behalf to admit students into such colleges or educational institutions to the extent of one half of the total number of seats from among those who have qualified in the common entrance test or in the qualifying examina- tion, as the ~e may be, feferred to in sub-seciton (1) of Section 3 irrespective of the ranking assigned to them in such test or examination and nothing contained in Section c 5 shall apply to such admissions."

A Full Bench of the Andhra Pradesh High Court has struck it down as being violative of Article 14 of the Constitution and also on the ground of repugnancy with Section 12-A of the University Grants Commission Act, D 1956 Kranti Sangram Parisliad v. Sri NJ. Reddy, (1992} 3 A.L.T. 99. The correctness of the said decision, is assailed before us.

73Copy pinpoint73. This Section is in truth; in the nature of an exception to the other provisions of the Act. It says that notwithstanding anything contained in Section 3, but subject to the rules as may be framed by the Government in this behalf, the private educational institutions of the nature mentioned therein, shall be entitled to admit students to the extend of half the number of seats from among those who have qualified in the common entrace test or the qualifying examination, as the case may be. This statement is accompanied by two significant features viz., (1) admission of such students could be irrespective of the ranking assigned to them to the common entrance test or other qualifying examination, as the case may be; and (2) it is made clear that nothing contained in Section 5 shall apply to such admissions. The Section is, thus, an exception to Section 3, 5. Section 3, it may be remembered, provides that admissions have to be made, to all categories, strictly in accordance with merit. The section, read as a whole, leads to the following consequences:

(a) It is open to the private educational institutions to charge as much amount as they can for admission. It will be a matter of bargain between the institution and the student seeking admission. H

p. 690 Copy page pinpoint

A (b) The admission can be made without reference to inter-se merit of paying candidates. The institution will be entitled to pick and choose the .-.../ candidates among the applicants on such considerations as it may deem fit.

(c) Section 5, which prohibtis collection of capitation fee by an education institutions, is expressly made inapplicable to such admissions. B This is not without a purpose. The purpose is to permit the institutions to charge as much as they can in addition to the collection of the prescribed tuition fee.

74Copy pinpoint74. We have held hereinbefore that the educational activity of the private educational institutions is supplemental to the main effort by the c State and that what applies to the main activity applies equally to the supplemental activity as well. If Article 14 of the Constitution applies - as it does, without a doubt - to the State institutions and compels them to admit students on the basis of merit and merit alone (subject, of course, to any permissible reservations - wherein too, merit inter-se has to be followed) the applicability of Article 14 cannot be excluded from the _;...- supplemental effort/activity. The State Legislature had, therefore, no power to say that a private educational institution will be entitled to admit students of its choice, irrespective of merit or that it is entitled to charge as much as it can, which means a free hand for exploitation and more particularly, commercialisation of education, which is impermissible in law. No such immunity from the constitutional obligation can be claimed or . conferred by the State Legislature. On this ground alone, the Section is liable to fail.

In the circumstances, it is not necessary for us to go into the question whether the section is bad on account of repugnancy ·with Section 12-A of the University Grants Commissioa Act. It is enough to say that the said section falls foul of Article 14 for the reasons given above the must accordingly fail. V./e agree that the offending portions of Section 3-A cannot be severed from the main body of the section and, therefore, the whole section is liable to fall to the ground.

It is not brought to our notice that the enactments of other three States viz., Karnataka, Tamil Nadu and Maharashtra contain similar of-· fending provisions. Indeed, they do not. None of their provisions says that, . --<.' ""'..,di the Management of a private educational institution can admit students, . ' H against 11 paY,ment seats1', "irrespective of the ranking assigned to them iri

.. UNNJ KRISHNAN v. STATE OF A.P. (REDDY, J.] 691

such test (entrance test) or examination." Much less do they say that to A such admissions, the provision prohibiting capitation fee shall not apply. True, they do norsay expressly that such admissions shall be made on the basis of merit, but that, according to us, is implicit. If the notifications or order issued thereunder provide otherwise, either expressly or by implica- tion, they would be equally bad for the reason given above. B

75Copy pinpoint75. Once Section 3-A is struck down, the question arises as to what should happen to the students who were admitted by the Private Engineer- ing Colleges in this State, at their own discretion, to the extent of the 50% of the available seats. The High Court has invalidated these admissions but they are continuing now by virtue of the orders of stay granted by this C Court. A fact which must be kept in mind in this behalf is this: Until the previous year, the Government of Andhra Pradesh has been permitting these private engineering colleges to collect a higher fees from all the students allotted to them. (We are told that the fees permitted to be collected was Rs. 10,000 per annum for the previous year). Of course, all D the available seats wero filled up by students allotted by the convenor of the common entrance exam; no one could be addmitted by these colleges on their o\vn. Now, for the current year, these colleges admitted 50% of the students in their own discretion · which necessarily means collection of capitation and/or arbitrary admissions for their own private reasons. At the same time, these colleges have been collecting the same fees (Rs. 10,000 E per annum) both from the students allottee by the convenor as also from those admitted by themselves. Thus they have reaped a double advantage.

76Copy pinpoint76. It is submitted by Shri Shanti Bhushan the learned counsel for these students that they were innocent parties and had obtained admission F in a bona fide belief that their admissions were being made properly. They have been studying since them and in a few months their academic year will come to a close. May be, the managements were guilty of irregularity, he says~ but so far as the students aie concerned they have done nothing contrary to law to deserve the punishment awarded by the Full Bench of the High Court. G

77Copy pinpoint77. It is true, as pointed out by the High Court that these admissions were made in a hurry but the fact remains that they have been continuing in the said course under the orders of this Court over the last about four months. As stated hereinbefore, the present situation has been brought H

p. 692 Copy page pinpoint

A about by a combination of circumstances, namely the enactment of Section . 3-A, tlie allotment of students to the extent of 50% only by the convenor and the failure of the Government to immediately rectify the misunderstanding of the convenor. In the circumstances we are not satis- fied that these students should be sent out at this stage. May be, the result B is rather unfortunate but we have to weigh all the relevnt circumstances. At the same time we are of the opinion that the managements of these private engineering colleges should not be allowed to walk away with the double advantage referred to above. Since they have admitted students of their own choice to the extent of 50% and also because it is not possible to investigate or verify for what consideration those admissions were made, c we think it appropriate to direct that these colleges should charge only that fee from the 50% 'free students' as is charged for similar courses in the concerned university engineering colleges. For the remaining years of their course these colleges shall collect only the said fee, which for the sake of convenience may be called the 'government fee'. The balance of the amount which they have already collected during this year shall be remitted into the Government account within six weeks from today, in default whereof the recognition and affiliation given to these colleges shall stand withdrawn. In other words whichever college fails to comply with the above direction it will stand disaffiliated on the expiry of six weeks from today and the recognition granted to it, if any, by any appropriate authority shall also stand withdrawn.

78Copy pinpoint78. So far as Writ Petition 855 of 1992 is concerned, it complains of charging of double the tuition fee is case of students coming from outside the Maharashtra. The matter stand concluded against the petitoners by a · decision of a Constitution Bench of this Court in D.P. Joshi v. State of Madhya Pradesh, [1955] 1 SCR 1215..This Writ Petition is accordingly dismissed.

79Copy pinpoint79. Coming to Civil Appeal No. 3573 of 1992 filed by Mahatma Gandhi Mission, we are inclined, in all the facts and circumstances of the case to stay the operation of the impugned order which is only an inter- locutory order effective till the disposal of the main Writ Petition. Writ r-{ Petition may be disposed of according to law and in the light to this H Judgment.

UNNI KRISHNAN v. STATE OF AP. [REDDY, J.J 693

PARTV A

80Copy pinpoint80. For the above reasons _the Writ Petitions and Civil Appeals except (W.P. (C) 855/92, C.A. 3573/92 and the Civil Appeals arising from S.L.Ps. 13913 and 13940/92) are disposed of in the following terms:

1. The citizens of this country have a fundamental right to education. B The said right flows from Article 21. This right is, however, not an absolute right. Its content and para meters have to be determined in the light of Articles 45 and 41. In other words every child/citizen of this country has a right to free education until he completes the age of fourteen years. Thereafter his right to education is subject to the limits of economic C capacity and development of the State.

2. The obligations created by Articles, 41, 45 and 46 of the Constitu- tion can be discharged by the State either by establishing institutions of its own or by aiding, recognising and/or granting affiliation to private educa- D tional institutions. Where aid is not granted to private educational institu- tions and merely recognition or affiliation is granted it may not be insisted that the private education institution shall charge only that foe as is charged for similar courses in governmental institutions. The private educational institutions have to and are entitled to charge a higher fee, not exceeding the ceiling fixed in that behalf. The admission of students and the charging E of fee in these private educational institutions shall be governed by the scheme evolved herein ·· set out in Part III of this Judgment.

3, A citizen of this country may have a right to establish an educa- tional institution but no citizen, perosn or institution has a right much less F a fundamental righi, to affiliation or recognition, or to grant-in-aid from the State. The recognition and/or affiliation shall be given by the State subject only to the conditions set out in, and only accordance with the scheme contained in Part III of this Judgment. No Government/University or authoril y shall be competent to grant recognition or affiliation except in G accordance with the said scheme. The said scheme shall constitute a condition of such recognition-Ol'.:'affiliation, as the case may be, in addition to such other conditiou"s. anp terms which such Government, University or other authority may choose to impose.

Those receiving aid shall, however, be subject to all such terms and H

p. 694 Copy page pinpoint

A conditions, as the aid giving authority may impose in the interest of general public.

4. Section 3-A of the Andhra Pradesh Educational Institutions (Regulation of Admission And Prohibition of Capitation Fee) Act, 1983 is violative of the equality Clause enshrined in Article 14 and is accordingly B declared void. The declaration of the Andhra Pradesh High Court in this behalf is affirmed.

5. Writ Petition No. 855 of 1992 is dimissed.

Civil Appeal No. 3573 of 1992 is allowed and the impugned order is c set aside. The main Writ Petition wherein the said interim order has been passed may now be disposed cf according to law.

6. Civil Appeals arising from S.L.Ps. 13913 and 13940/92 (preferred by students who were admitted by private unaided engineering colleges in D Andhra Pradesh, without an allotment from the convenor of the common entrance examination) are allowed. The students so admitted for the dcademic year 1992-93 be allowed to continue in the said course but the management shall comply with the directions given in para 77 hereinabove.

MOHAN, J. I have had the advantage of perusing the judgment of my learned brother Justice B.P. Jeevan Reddy. Though, I am in agreement with his conclusion, I would like to give my own reasonings. Since my learned brother has set out the facts, I will confine myself to answering the three questions, name!y:

1. Whether the Constitution of India guarantees a fundamental right to education to its citizens?

2. Whether there is a fundamental right to establish an educational institution under Article 19(1)(g)?·

G 3. Does recognition or affiliation make tht educational institution an instrumentality?

All the these matters raise a burning issue; as to ho\V to put .an end to the evil of capitation fee or at least to regulate it. , -\

H As a prelude, the importance of education may be set out.

p. 695 Copy page pinpoint

The immortal Poef Valluvar whose Tirukkura! will surpass all ages A ').... and transcend all religions said of education:

"Learning is excellence of wealth that none destroy; To man nought else affords reality of joy."

Therefore, the importance of education does not require any em- B phasis.

The fundamental purpose of Education is the same at all times and in all places. It is to transfigure the human personality into a pattern of perfection through a synthetic process of the development of the body, the C ,.._. enrichment of the mind, the sublimation of the emotions and the illumina- tion of the spirit. Education is a preparation for a living and for life, here and hereafter.

An old Sanskrit adage states: "That is Education which leads to liberation" - liberation from ignorance which shrouds the mind; liberation from superstition which paralyses effort, liberation froc prejudices which bling the Vision of the Truth.

In the context of a democratic form of government which depends for its sustenance upon the enlightenment of the populace, education is at once a social and political necessity. Even several decades ago, our leaders harped upon universal primary education as a desideratum for national progress. It is rather sad that in this great land of ours where knowledge first lit its torch and where the human mind soared to the highest pinnacle of widom, the percentage . of illiteracy should be appalling. Today, the frontiers of knowledge are enlarging with incredible swiftenss. The F foremost iieed to be satisfied by our edueation is, therefore, the eradication of illiterac-; which persists in a depressing measure. Any effort taken in this direction cannot be deemed to be too much.

Victories are gained, peace is preserved, progress is achieved, G civilization is build up and history is made not on the battle-fields where ghastly murders are committed in the name of patriotism, not in the Council Chambers where insipid speeches are spun out in the name of debate, not even in factories where are manufactured novel instruments to strangle life, but in educational institutions which are the seed-beds of culture, where children in whose hands quiver the destinies of the future, H

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A are trained. From their ranks will come out when they grow up, statesmen and soldiers, patriots and philosophers, who will determine the progress of the land.

The importance of education bas come to be recognised in various judicial decisions. B In Oliver Brown v. Board of Education of Topeka, U.S. Supreme Court Reports 98 Law. Ed. U.S. 347 at page 880 it was observed:

"Today, education is perhaps the most important function of state and local governments. Compulsory school atten- c dance laws and the great expenditures for education both , demonstrate our recognition of the importance of educa- tion to our democractic society. It is required in the per- formance of our most basic public responsibilities, even service in the armed forces. It is very foundation of good D citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment."

Various fundamental rights enumerated under Part III of our Con- E stitution can be divided 'nto two classes.

1. lnjuction restraining the State from denying certain fundamental rights like Articles 14 and 21.

2. A positive conferment of such fundamental rights under Articles F 19, 25 and 26 etc.

In this connection, the following passage from Addi. Dist. Magistrate ~ ·· v. S.S. Sltukla, (1976] Supp. SCR 172 @ 229-2.10 may be quoted:

''Part III of our Constitution confers fundamental rights in positive as well as in negative language. Article 15(1), 16(1), 19, 22(2), 22(5), 25(1), 26, 29(1), 30 and 32(1) can be described to be Articles in positive language. Articles 14, . _..,,_ 15(2), 16(2), 20, 21, 22(1), 22(4), 27, 28(1), 29(2), 31(1) and (2) are 1n negative language. It is apparent that most categories of fundamental rights are in positive as well as

UNNI KRISHNAN v. STATE OF AP. (MOHAN, J.] 697

in negative language. A fundamental right couched in nega- A tive language accentuates by reason thereof the importance of that right. The negative language is worded to emphasise the immunity from State action as a fundamental right. (See The State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darohanga and Ors.) These fundamental rights con- B ferred by our Constitution have taken different forms. Some of these fundamental rights are said to have the . texture of Basic Human Rights (See A.K Gopalan's case (supra) at pp. 96-97, 248-293 and Bank nationalalisation case (Supra) at pp. 568-71, 576-78)." c Article 21 reads as follows:

"Perfection of life and personal liberty:- No person shall be deprived of his life or personal liberty except according to procedure established by law." D It would be clear that it acts as a shield against deprivation of life or personal liberty.

A question may be asked as to why it did not positively confer a fundamental right to life or personal liberty like Article 19. The reason is, great concepts like liberty and life were purposefully left to gather meaning E from experie.nce. They relate to the whole domain of social and economic fact. The drafters of this Constitution knew too well that only a stagnant society remains uncharged.

Unlike such rights as required to be enumerated it has long been recognised that the individual shall have full protection in person. It is a F principle as old as law. However, it has been found necessary from time to time to define a new the exact nature and the extent of such protection. Political, social and economic changes entail the recognition of new rights and the law in its eternal youth grows to meet the demands of society. The right to life and liberty inhere in every man. There is no need to provide G for the same in a positive manner.

While dealing with the scope of Article 21 it was observed in Maneka Gandhi v. Union of India, AIR 1978 597 @ 620-21 that:

"It is obvious that Art. 21, though couched in negative H

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A language, confers the fundamental right to life and personal liberty. So far as the right personal liberty is concerned, it is ensured by providing that no one shall be deprived of personal liberty except according to procedure prescribed by law. The first question that arises for consideration on the language of Art. 21 is : what is the meaning and content B of the words 'personal liberty' as used in this Article? This question incidentally came up for discussion in some of the judgments inA.K Gopalan v. State of Madras, (1950] SCR 88 : (AIR 1950 SC 27) and the observations made by Patanjali Sastri, J., Mukhe1jee, J. and S.R. Das, J. seemed c to place a narrow interpretation on the words 'personal liberty' so as to confine the protection of Art. 21 to freedom of the person against unlawful detention. But there was no definite pronouncement made on this point since the ques- tion before the Court was no so much the interpretation of the words 'personal liberty' as the inter-relation between D Arts. 19 and 21. It was in Kharak Singh v. State of U.P., [1964] 1 SCR 332; (AIR 1963 SC 1295) that the question as to the proper scope and meaning of the expression 'personal liberty' came up pointedly for consideration for the first time before this Court. The majority of the Judges E took the view "that 'personal liberty' is used in the article as a compendious term to include within itself all the varieties of rights which go to make up the 'personal liberties' of man other than those deal! with in the several clauses of Art. 19(1). In other words, while Art. 19(1) deals with particular species of attributes of tljat freedom, 'per- F sonal liberty' in Art. 21 takes in and comprises the residue". The minority Judges, however, disagreed with this view taken by the majority and explained their position in the following words:

G "No doubt the expression 'personal liberty' is a com- prehensive one and the right to move freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of persoanl liberty and, therefore, the expression 'personal liberty' in Art. 21 excludes that at- H tribute. In our view, this is not a correct approach. Both

r ..,..- UNNI KRISHNAN v. STATE OF AP. [MOHAN, J.] 699

are independent fundamental rights, though there is over· A lapping. There is no question of one being carved out of ' :.- another. The fundamental right of life and personal liberty has many attributes and some of them are found in Art.

19. If a person's fundamental right under Art. 21 is infr- inged, the State can rely upon a law to sustain the action, but that cannot be a complete answer unless the -said law satisfies the test laid down in Art. 19{2) so far as the attributes covered by Art. 19{2) so far as the attributes covered by Art. 19(1) are concerned.''

There can be no doubt that in view of the decision of this Court in R.C. Cooper v. Union of India, (1970] 3 SCR 530: (AIR 1970 SC 564) the minority view must be regarded as correct and the majority view must be held to have been overruled."(Emphasis supplied)

Therefore, it is not correct to state that because the article is couched in a negative language, positive rights to life and liberty are not conferred as argued by Mr. Tarkunde, learned counsel.

'"Personal Liberty' in Art. 21 takes in all the rights of man."

The 4th Amendment of U.S. Constitution guaranteed "the right to be secure on their persons, houses ..... 11 F

This right was read into Article 21 and it was held that "there cannot be an unauthorised intrusion into a person's home".

In Kesavananda Bharati v. Kera/a, [1973] Supp. SCR page 1 Mathew, J. stated therein that the fundamental rights themselves have no fixed G content, most of them are empty vessels into which each generation must pour its content in the light of its experience. It is relevant in this context to remember that in building up a just social order it is sometimes impera- tive that the fundamental rights should be subordinated to directive prin- ciples. H

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A In Puthumma's case, (1978] 2 SCR 537, it has been stated:

"The attempt of the court should be to expand the reach and ambit of the fundamental rights rather than accentuate their meaning acd content by process of judi- cial construction •.. Personal liberty in Article 21 is of the B widest amplitude".

In this conne~tion, it is worthwhile to recall what was said of the American Constitution in Mussorie v. Holland, 252 U.S. 416 at 433:

C "When we are dealing with words that also are constituent act, like the constitution of the United States, we must realize that they have called into life a being the develop- ment of whcih could not have been foreseen completely by the most gifted of its begetters."

D In State of M.P. v. Pramod Bhyaratiya and others, {1992) 2 Scale 791 it is stated:

"Because clause (d) of Article 39 spoke of "equal pay for equal work" for both men and women it did not cease to be part of article 14. To say that the rule having been E state.ct as a directive principle of State Policy, and no enforceable in court of law is to indulge in sophistry. Parts IV & III of Constitution are not supposed to be exclusion- ary of each other. They are complementary to each other. The rule is as much a part of Article 14 as it is of clause F (1) of Article 16."

This Court has held that several unenumerated rights fall within Article 21 since personal liberty is of widest amplitude.

The following rights are held to be covered under Article 21: G

1. The right to go abroad Satwant Singh v. A.P.O. New Delh~ (1967] 3 SCR page 525.

2. The right to privacy H Govinda v. State of U.P., (1975] 3 SCR 946

p. 701 Copy page pinpoint

In this case reliance was placed on the American decision in A Griswols v.Connecticu~ 381 US 479 at 510 ~ ~

3. The Right against solitary confinement Sunil Batra v. Del/hi Administration, (1978) 4 SCC 494 at 545

4. The Right against Bar fetters B C!zarles Sobraj v. Supt. Central Jail, (1979] 1 SCR 111

5. The Right to legal aid Hoskot v. State of Maharashtra, (1979) 1 SCR 192

6. The Right to speedy trial c H11ssainuia Katoon v. State of Bihar, (1979) 3 SCR 169

7. The Right against Handcuffing

.. Prem Slzankar v. Delhi Administration, (1080] 3 SCR 855

8. The Right against delayed execution T. V. Vatheeswara11 v. State of Tamil Nadu, AIR 1983 SC 361 D

9. The Right against custodial violence Sheela Bhasre v. State of Maharashtra, (1983) 2 SCC 96

10. The Right against public hanging E ...... A.G. of llldia v. Lachmadevi, AIR 1986 SC 467

11. Doctor's Assistance Paramananda Katra v. UOI, (1989) 4 SCC 286

12. Shelter F Salltistar Builder v. N.Kl. Totame, [1990) 1 SCC 520 ~ If really Article 21, which is the heart of fundamental rights has ( received expanded meaning from time to time there is no justification as to why it cannot be interpreted in the light of Article 45 wherein the State G is obligated to provide education up to 14 years of age, within the prescribed time limit. )- So much for personal liberty.

Now coming to life: this Court interpreted in Bandhua Mukti Morcha .H

p. 702 Copy page pinpoint

A v. Union of India, (1984] 3 SCC 161 @ 183-84:

"It is the fundamental right of everyone in this country, assured under the interpretaiton given to Article 21 by this Court in Francis Mullin's case, to live with human dignity, free from exploitation. This right to live with human dig- B nity, free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the directive Principles of State Policy and particularly clauses (e) and (t) of Article 39 and Article 41and42 and at the leas~ therefore, it must include protection of the c health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and mater- D nity relief. These are the minimum requirements which must exi:;t in order lo enable a person to live \Vith human dignity and no State - neither the Central Government nor any State Government - has the right to take any action which will deprive a person of the enjoyment of these basic essentials. Since the Directive Principles of State Policy E contained in clauses (e) and (t) of Article 39, Articles 41 and 42 are not enforceable in a court of law, it may not be possible to compel the State through the judicial process to make provision by statutory enactment or ex- ecutive fiat for ensuring these basic essentials which go to F make up a life of human dignity but where legislation is already enacted by the State providing these basic require- ments to the workmen and thus investing their right to live with basic human dignity, with concreate reality and con- tent, the State can certainly be obligated to ensure obser- vance of such legislation for inaction on the part of the G State in securing implementation of such legislation w~uld amount to denial of the right to live with human dignity enshrined in Article 21, more so in the context of Article 256 which provides that the executive power of every State shall be so exercised as to ensure compliance with the laws H made by Parliament and any existing laws which apply in

p. 703 Copy page pinpoint

that State.' A

This, was eleborated iu Olga Tellis v. Bombay Municipal Corporation, (1985] 3 sec 545 @ 571-573:

'As we have stated while summing up the petitioners' case, B the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of c argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwell- ings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihnod. We D see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for eXlllJlple, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one E aspect of the right to life. An equally important facet of that right is the right to livelihoad because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right life, the easie.st way of depriving F a person of his right to life wonld be to deprive him of his means of livelihood to the point of abrogation. Such --~--- deptivation wonld not only denude the life of its effective content and meaningfulness but it would make life impos- sible to live. And yet, such deprivation would not have to be in accorolillce with the procedure established by law, if G the • ight to livelihood is not regarded as a part of the right to live. That, which alone makes it possible to live, leave aside what makes life livable; must !>e deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him H

p. 704 Copy page pinpoint

, . A of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which proples their desertion of their hearts and homes in the village is the struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the B nexus between life and the means of livelihood. They have to eat to live: Only a handful can efford the luxury of living to eat. That they can do, namely, ·eat, only if they have the means of livelihood. That is the context in which it was said by Douglas, J. in Baksey that the right to work is the most c precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. "Life', as observed by Field, J. in Munn v. Illinois, means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This obervation was quoted with approval by this Court in Kharak Singh v. State of U.P.

Article 39(a) of the Constitution, which is a Directive Principle of State Policy, provides that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood. Article 41, which is another Directive Principle, provides, inter alia, that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work in cases of unemployment and of undeserved want. Article 37 provides that the Directive Principles, though not enforceable by any court, are nevertheless fundamental in the governance of the country. The p;in. ciples contained in Articles 39(a) and 41 must be regarded as equally fundamental in the understanding and inter- pretation 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 livti/ihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from. the content of the right to life. The State may

p. 705 Copy page pinpoint

no~ by affirmative action, be compellable to provide ade- A '>.- quate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21."(Emphasis supplied) B If thus, personal liberty and life have come to be given expanded meaning, the question to be addressed is, whether life which means to live ~- with dignity, will take within it education as well? To put it more emphati- cally, whether right to education flows from right to life? Before we go to Mohini Jain's case [1992] 3 SCC 666 it may be necessary to refer to State c of An·dhra Pradesh v. Lavu Narendranaih, [1971] 1 SCC 607. At page 614 it is stated:

... 'Lastly it was urged that such test affected the personal liberty of the candidates secured under Article 21 of the Constitution. We fail to see how refusal of an application D to enter a medical college can be said to affect one's personal liberty guaranteed under that article. Everybody, subject to the eligibility precribed by the University, was at liberty to apply for admission to the medical college. The number of seats being limited compared to the num- E ber of applicants every candidate could not exp!'ct to be admitted. Onq; it is held that the test is not invalid the deprivation of personal liberty, if any, in the matter of admission· to a medical college was according to proce- dure established by law. Our attention was drawn to the F case of Spottwood v. Sharpe, in which it was held that due process clause of the Fifty Amendment of the American ~- Constitution prohibited racial segregation in the District of Columbia. Incidentally the Court made a remark (at p. 887): G "Although the Court has not assumed to define "liberty". with any great precision, that term in not confined to mere ~- freedom from bodily restraint. Liberty under law extends ' to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper H

p. 706 Copy page pinpoint

A governmental objective. Segregation in public education is not reasonably related to any proper governmental objec- _J tive, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary depriva· · tion of their liberty in violation of the Due Process Clause.

B The problem before is altogether different. In this case everybody subject to the minimum qualification prescri.bed was at liberty to apply for admission. The Government objective in selecting a number of them was certainly not. improper in the circumstances of the case,." c It requires to be carefully noted. that deprivate of personal liberty if done by a valid procedure established by law, the fundamental right under Article 21 was not, in any manner, affected. That is the crux of this ruling.

~ D Now, coming to Mohini Jain's case (supra) it was observed at pages 679-80:

"Right to life" is the compendious expression for all those rights which the courts must enforce becuase they are basic to the dignified enjoyment oflife. It extends to the full range of conduct which the individual is free to pursue. The right to education flows directly from right to life. The right to life under Article 21 and the dignity of an inaividual cannot be assured unless it is accompanied by the right to educa- tion. The State Government is under an obligation to make endeavour to provide educational facilities at all levels to its citizens." _....._ Education is enlightenment. It is the one that lends dignity to a man as was rightly observed by Gajendragarkear, J. (as he then was) in Univer· sity of Delhi v. Ram Nath, [1964] 2 SCR 703 at 710: G "Education seeks to build up the personality of the pupil by assisting his physical, intellectual, moral and emotional development." . ""' • H If life is so interpreted as to bring within it right to education, it has

p. 707 Copy page pinpoint

to be interpreated in the light of directive principles. This Court has A uniformly taken the view that harmonious interpretation of the fundamen- tal rights vis-a-vis the directive principles must be adopted. We will now refer to some of the important cases.

In State of Kera/a & Anr. v. N.M. Thomas & Anr., [1976] 1 SCR 906. B at 914 it was held:

"There is complete unanimity of judicial opinion of this Court that the Directive Principles and the Fundamental Rights should be construed in harmony with each other and every attempt should be made by the Court to resolve c apparent inconsistency.

The Directive Principles contained in Part IV con- stitute the stairs to climb the High edifice of a socialistic State and the Fundamental Rights are the means through which one can reach the top of the edifice. D

The Directive Principles form the fundamental feature and the social conscience of the Constitution which en- I joins upon the State to implement these Directive Prin- !' ciples. The Directives, thus provide the policy, the E guidelines and the end of socio-economic freedom and Arts. 14 and 16 are the means to implement the policy to achieve the ends sought to be promoted by the Directive Principles. So far as the Courts are concerned where there is no apparent inconsistency between the Directive Prin- ciples contained in Part IV and the Fundamental Rights F _mentioned in Part III, there is no difficulty in putting a harmonius construction which advances the object of the Constitution. 11

In Pathumma and others v. State of Kera/a and others, [1978] 2 SCR G 537 at 545-46 it was observed:

"In fac4 in the case of His Holiness Kesavananda Bharati Sripadaga/avaru v. State of Kera/a all the Judges constituting the Bench have with one voice given the Directive Priciples contained in the Constitution a place H

p. 708 Copy page pinpoint

A of honour. Hegde and Mukherjea, JJ. as they they were have said that the fundamental rights and the Directive Principles constitute the "conscience" of our Constitution. The purpose of the Directive Principles is to foe certain socio and economic goals for immediate attainment by bringing about a non-violent social revolution. B Chandrachud, J. observed that our Constitution aims at bringing about a systhesis between 'Fundamental Rights' and the 'Directive Principles of State Policy' by giving to the former a place of pride and to the latter a place of permanence. c In a latter case State of Kera/a & Anr. v. N.M. T7iomas & Ors., [1976) 2 SCC 310 one of us (Fazal Ali, J.) after analysing the Judgment delibered by all the Judges in the Kesvananda Bharati's case (supra) on the importance of the Directive Principles observed as follows: D "In view of the principles adumbrated by this Court it is clear that the Directive Principles form the fundamental feature and the social conscience of the Constitution and the Constitution enjoins upon the State to implement E these directive principles. The directives thus provide the policy, the guidelines and the end of socio-economic freedom of Articles 14 and 16 are the means to implement the policy to achieve the ends sought to be promoted by the directive principles. So far as the courts are con- F cerned where there is no apparent inconsistency between the directive principles contained in Part III, which in fact supplement each other, there is no difficulty in putting a harmonious construction, which advances the object of the Constitution. Once this basic fact is kept in mind, the interpretation of Articles 14 and 16 and their scope and ambit he come as clear as day".

In the case of The State of Bombay v. R.M.D. Chamar- baugwala this Court while stressing the importance of directive principles contained in the Constituion observed as follows:

• / UNNI KRISHNAN v. STATE OF AP. [MOHAN, J.]

'The avowed purpose of our constitution is to create A a welfare State. The directive principles of State Policy set forth in Part IV of our Constitution enjoin upon the State the duty to strive to promote the welfare of the people by securing and protecting, as effectively as it may, a social order in which justice, social, economic and political, shall B inform all tbe institutions of the national life."

In the case of Fatehchand Himmatlal & Ors. v. State of Maharashtra etc. (supra) the Constitution Bench of this Court observed as follows:

'Incorporation of Directive Principles of State Policy c casting the high duty upon the State to strive to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which justice - social, .economic and political - shall inform all the institutions of the national life, is not idle point but command to action. D We can never forget, except at our peril, that the Con- stitution obligates the State to ensure an adequate means or' livelihood to its citizens and to see that the health and strength of workers, men arid woinen, are not abused, that exploitation, moral and material, shall be extradited. In E short, State action defending the weaker sections from social injustice and all forms ·of exploitation and raising the standard of living of the poeple, necessarily imply that economic activities, attired as trade or business or com- merce, can be de-r<?cognised as trade or business." F In Delhi Development Horticulture Employees' Union v. Delhi Ad- ministration, Delhi and others, (1992] 4 SCC 99 at 110 it was observed:

"There is no doubt that broadly interpreted and as a necessary logical corollary, right to life would include the right to livelihood and, therefore, right to work. It is for G this reason that this Court in Olga Tellis v. Bombay Municipal Corporation while considering the consequen- ces of eviction of the pavement dwellers had pointed out that in that case the eviction not merely resulted in deprivation of shelter but also deprivation of livelihood H

p. 710 Copy page pinpoint

A inasmuch as the pavement dwellers were employed in the vicinity of their dwellings. The Court had, therefore, em- phasised that the problem of eviction of the pavement dwellers bad to be viewed also in that context. This was, however, in the context of Article 21 which seeks to protect persons ~st the deprivation of their life except B according to procedure established by law. This Country bas so far not found it feasible to incorporate the right to livelihood as a fundamental right in the Constitution. This is because the country has so far not attained the capacity to guarantee it, and .no because it considers it any the less c fundamental to life. Advisedly, Article 41 of which enjoins upon the State to make effective provision for securing the same "within the limits of its economic capacity and development". Thus even while giving the direction to the State to ensure the right to work, the Constitution makers though it prudent not to do so without qualifying it." D Such a conclusion may not be open to criticism. So interpreted it advances social justice.

In Vol. VII at pages 909 and 910 of the Constitutent Debates (1948- E 49) it is stated: "The Honourable Shri K. Santhanam : Sir, you will remeber that throughtout Europe, after the First World. War, all that the minorities wanted was the right to have their own schools, and to conserve their own cultures which the Fascist and the Nazis refused them. In fact, they did not want even the State schools. They did not want State aid, or State assistance. They simply wanted that they should be allowed to pursue their own customs and to follow their own cultures and to establish and conduct their own schools. Therefore I do not think it is right on the part of any minority tu depreciate the rights given in article 23(1).

Sir, in clause (2) of article 23 they are protected against . discrimination. It is just possible that there may be many provinces based on language and therefore the Govern-

p. 711 Copy page pinpoint

ment, the ministry and the legislature will be composed dominantly by members of the majority language. This right of non-discrimination will then become fundamental and valuable.

And then in clause (3) of this article, it is provided that when the State gives aid to education, ii shall not discriminate against any educational institution, on the ground that it is under the management of a minority. Whether based on community or on language, and this will be particularly applicable to the linguistic minorities. In every province, there ar9 islands of these linguistic c minorities. For instance, in my own provice of Tamil Nadu there are islands, in almost every district, of villages where a large number of Telugu-speaking people reside. In this connection we have to hold the. balance even between two different trends. First of all, we have to give to large D linguistic minorities their right to be educated - especially in the primary stages - in their own fonguage. At the same time we should not interfere with the historical process of assimilation. We ought not to think that for hundres and thousands of years to come these linguistic minorities will perpetuate themselves as they are. The historical proces- E -~es should be allowed free play. These minorities should be helped to become assimilated with the people of the locality. They should gradually absorb the language of the locality and become merged with the people there. Other- wise they will be aliens, as it were, in those provinces, F Therefore, we should not have rigid provisions by which every child is automatically protected in what may be called his mother-tongue. On the other band, this process should not be sudden, it should not be forced. Wherever there are large numbers of children, they should be given education - primary education - in their mother-tongue. G At the same time, they should be encouraged and assisted to go to the ordinary schools of the provinces and to imbibe the local tongue and get assimilated with the people. If feel this clause does provide for these contin- gencies in the most practicable fashion. H

p. 712 Copy page pinpoint

A Sir, Mr. Lari wanted an amendment which seeks to provide that every child, rather that every section of the citizens, shall be entitled to have primary education im- parted to its children through the medium of the language of that section. I suppose what he means is that wherever primary education is imparted at the expense of the State, B such provisions should be made. But this, I think, would give the minority or section of people speaking a language the complete and absolute right to have primary education which the people of this country do not have today. In the directives we have provided that in fifteen years' time c there should be universal primary education. But no one knows whether the financial and other conditions in the country would permit of universal primary education to be established even then. Today no one in India can ask for primary education as a right as only ten per cent of the population get primary education. Therefore, it is not possible to accept Mr. Lari's amendment, because that would lead to all kinds of difficulties. If it were passed, then anyone can go to the Supreme Court and say that his child must get eduntion in a particular language. That is not practicable, and I do not think even his intention is at all that.

At the same time, I think, what he has pleaded for must be kept in mind as a general policy. It should be direction of the Central and the Provi~cial Governments F to see that wherever there are congregations of boys and girls having a distinct mother togue, schools should be provided in that language. I hope, that will be the policy 1 adopted all over the country, especially as, if there is going to be new linguistic revisions of the boundaries, all the border areas will be full of this problem. ! hope the report of the Linguistic Provinces Commission will contain some wise provisions to be adopted in this behalf. There should be no difficulty or hardship whatsoever in provinces when they are rearranged on a linguistic basis. For instance, if a Telugu goes to one area or the other, he should not have any hardship. As I said, this is a most difficult and com-

' UNNI KRISHNAN v. STATE OF AP. [MOHAN, J.) 713

plicated problem and it cannot be dealt with in detail in the fundamental rights. This article 23 provides as much security as can be done in the Constitution. Other securities will have to be provided for both by Parliamen- tary and provincial legislation, and I hope it will be done in due course." B It is true the framers of the Constitution took that view. But the position as \)n today is very different. The reason is Article 45 States as .>--. under:

'Provision for free and compulsory education for C children. - The State shall endeavour to provide, within a period of ten years from the commencement of this Con- stitution, for free and compulsory education for all children until they complete the age of fourteen years.'

14 years, spoken to under the Article, had. long ago come to an end. D We are in the 43rd year of Independence. Yet, if Article 45 were to remain a pious wish and a fond hope, what good of it having regard to the importance of primary education? A time limit was prescribed under this Article. Such a time limit is fi!iund only here. If, therefore, endeavour has not been made till now to make this Article reverberate with life and E articulate with meaning, we should think the Court should step in. The State can be obligated to ensure a right to free education of every child up to the· age of 14 years. On this aspect a useful reference could be made to what have been observed in Human Rights and Education Vol. 3 edited by Norma Bernstein. Tarrow at page 41: F 'The State is directed to strive for the right to educa- tion, make provision for free and compulsory education (Article 45), l\Jld promote the educational interests of Scheduled Castes and Tribes, and other weaker sections (including women). G Education is primarily the responsibility of the State "Governments, but the Union Government has certain responsibilities specified in. the Constitution on matters such as planning, higher education and promotion of education for weaker sectioni;. Most states have enacted H

p. 714 Copy page pinpoint

A legislation for compulsory education. At the end of the Sixth Five Year Plan (1985) primary education for ages 6-11 is free in all states, and for age group 11-14 it is free in all except Orissa, Uttar Pradesh and West Bengal. In these States, girls and members of Scheduled Castes and B Tribes get free education, and incentives such as mid-day meals, free books and uniforms, are provided. At the secondary stage several states have free education for all children and those which do not make free education available to all, do so for girls, Scheduled Castes and Tribes. Thus, free education in all states is provided at the c primary and secondary stages for girls, Scheduled Castes and Tribes."

Again at page 43 it is stated:

'Useful measures of achievement in terms of the right D to education are literacy and enrolment levels. The con- temporary picture, however, is not as good as one would expect after 39 years of independence. The literacy rate has risen from 16.6. per cent in 1951 to 36.6 per cent according to the 1981 census. But regional variations in- E dicate a range of above 60 per cent literacy in Kerala to below 20 per cent in some states. Nearly 120 million in tbe functional age group of 15-35 are still illiterate (Bhan- dari, 1981).

F Over the last three decades of planned development, rapid growth in facilities has attempted to provide access for minorities and girls. The number of educational in- stitutions has more than doubled, while the number of teachers and students has multiplied many times. But despite the fact that 93 per cent of the rural population have access to schools, nearly 30 per cent of 6-14 year old (60 million) do not go to school and 77 per cent drop out. A large percentage of the dropouts are grils and Scheduled Caste and Tribe members. The main problems are socio-economic constraints which result in educational constraints. Poverty is a majory cause for keeping chidren

p. 715 Copy page pinpoint

away from school." A Article 26(1) of the Universal Declaration of Human Rights states:

'Everyone has the right to education. Technical and profes- sional and professional education shall be made generally available and higher education shall be equally accessible B to all on the basis of merit." (Emphasis supplied)

In the World of Science and the Rule of Law by John Ziman 1986 Edition at page 49 it is stated:

"The principal global treaty which covers this right is c the ·1cESCR, .whose Article 13 recognizes the general right to education enunciated by the UDHR, but then goes on to add the following more specific provisions:

(2) The States Parties to the present Covenant recog- D nize that, with a view to achieving the full realization of this right:

(a) Primary education shall be compulsory and avail- able fee to all; E (b) Secondary education in its different forms, includ- ing technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education: F {c) Higher education shall be made equally accessible to all, on the progressive introduction of free education;

(d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have G not received or completed the whose period of their primary education;

(e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teach- H

p. 716 Copy page pinpoint

A ing staff shall be continuously improved.

The status of this Article is a useful reminder of the. problems inherent in any attempt to create a 'social' right of this kind for individuals against their states."

B No doubt, the above extract from Mohini Jain's case (supra) stat~ "education at all levels", but wc ·consider the law has been somewhat broadly stated and, therefore, must be confined to what is envisaged under Article 45.

C The criticism by Mr. Ashok Desai, learned counsel that Article 37 has not been adverted to and the reliance on directive principles is un- tenable, in view of what we have stated above.

Highe~ education calls heavily on national economic resources. The right to it must necessarily be limited in any given country by its economic D and social circumstances. The State's obligation to provide it is, therefore, not absolute and immediate but relative and progressive. It has to take steps to the maximum of its available resources with a view to achieving progressively the full realization of the right of education by all appropriate means. But, with regard to the general obligation to provide education, the E State is bound to provide the same, if it deliberately starved its educational system by resources that it meanifestly had available unless it could show that it was allocating them to some even more pressing programme. There- fore, by holding education as a fundamental right up to the age of 14 years this Court is not de!ermining the priorities. On the contrary, reminding it F of the solemn endeavour, it has to take, under Article 45, within a prescribed time,. which time limit was expired long ago.

Mr. K.K. Venugopal, learned counsel contends that in the U.S. Supreme c;ourt in the case of San Antonio Independent School District v. G Rodrigues, 1973 411 U.S. it was observed:

"It is not province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws. Thus the key to discovering - whether education is "Fundamental" is not to be found H (imcomparisons) of the relative societal significanoos of

p. 717 Copy page pinpoint

education as opposed to subsistence or housing... Rather, A the answer lies in assessing whether there is a right to education explicitly or implicity guaranteed by the Con- stitution".

But, if in reality, the fundamental rights and the directive principles · are complementary to each other we are unable to ;oe why this fundamen- B ta! right cannot be interpreted in this manner. The American Constitutio0 does not have a directive principle like Article 45. Therefore, the contrary view was struck in San Antonio lndependeilt School District (supra) ..

While dealing with the American Law on this aspect in Vol. 57 1%9 C California Law Review at page 380 it was stated:.

"It is true that the quotation from the Brown opinion seems stunningly relevant. Taken literally it would be ,.,.. . decisive in some sense upon the question of this Article . Education "must be made available to all on equal terms." D From the vantage point of 1968, however, it is no longer clear that Brown was specially concerned about the inter- est in education. The decision had scarcely appeared before the "fundamental" chracter of education become the fundamental character of golf and swimming rights, E and all the cases since Brown, even the cases involving education, have shown complete preoccupation with the racial factor. Meanwhile tile Cou;t has done nothing fur- ther to suggest that education enjors a constitutional life of its own.' F As to the present position of primary education in India, the addi- _- ·· tional affidavit on behalf of Union of India filed by Mr. H.C. Baveja, Assistant Education Advisor in the Ministry of Human Resources Development, Government of India, Department of Education, New Delhi, puts the position thus: G STATUS OF ELEMENTRY EDUCATION IN INDIA

1. Provision of free and compulsory education to all children until they complete the age of 14 years is .a Directive Principle of the Constitution. Recognising the H

p. 718 Copy page pinpoint

A need for literate population and provision of elementary education as a cruicial input for nation building, the policy of the Government has been to provide all children the free and compulsory .education at least up to elementary . level (primary and upper primary level). The 6th Five Year Plan document made a serious reference to the desirability of a time bound plan to achieve universal enrolment. The 7th Plan conveyed a sense of urgency about the need to achieve this objective. This was rein- forced mid-way by the National Policy on Education, 1986.

c Progress over the years:

2. Concerted efforts to reach the target has led to manifold increase in institutions, teachers and students as shown in the table below:-

D Number of Institution (in lakhs)

1950-51 1990-91 Primary Schools : 2.10 5.58 (Class 1-V) . Upper Primary Schools 0.13 1.46 E (Class VI-VIII) ....... Total 2.23 7.04 Number of Teachers (In lakhs) Primary Schools : 5.38 16.36 F Upper Primary Schools : 0.36 10.59 Total 6.24 26.95 Gross Enrolment Primary Enrolment (in lakhs) 192 991 G Gross Enrolment Ratio 43.1% 101.03% Upper Primary Stale ...._ Total Enrolment (in lakhs) 31 333 '·· Gross Enrolment Ratio 12.9% 60.11% ' H

UNNJ KRISHNAN v. STATE OF AP. [MOHAN, J.) 719

3. This increase provided Indian Education System A with one of the largest systems in the world, providing accessibility within 1 km. walking distance of Primary schools 'to 8.Zt(lakhs habitations containing about 94% of the country's population. Growth in enrolment in the decade of 80s showed an acceleration that has now brought enrolment rates close of 100% at primary stage. B

FREE EDUCATION:

4. In the endeavour to increase enrolment and achieve the target of UEE, all State Governments have abolised tuition fee~ in Government Schools run by local bodies and private aided institutions is mostly free in these States. However, in private unaided schools which constitute 3.⁷.% of the total elementary schools in the country, some . fee is charged. Thus, overall, it may be said that education up to elementary level in practically all schools is free. Other costs of education such as text books, uniforms, school bags, transport etc. are not borne by States except in a very few cases by way of incentives to children of indigent families or tb ·,se belonging to Scheduled Caste/Scheduled Tribes categories. The reason why the E State Government are nnable to bear this additional ex- penditure is that 96% of expenditure on elementary education goes in meeting the salaries of teaching and non-teaching staff. F COMPULSORY EDUCATION

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

Thus, it has to be concluded that the right to free education up to the age of 14 years is a fundamental right. H

SUPREME COURT REPORTS (1993) 1 S.C.R.

A The next question is whether there is a fundamental right to establish an educational institution. That takes us to Article 19(1)(g). That reads as -...,/ follows:

'to practise any profession, or to carry on any occupa- tion, trade or business." B The question now is: what is the meaning to be attnbuted to the words "profession",."occupation", "trade" or "business".

In P. Ramanatha Aiyar's Law Lexicon Reprint Edfation 1987 at page C 897 "Occupation" means: "The principal business of one's life, vocation, calling, trade, the business which a man follows to procure a living or obtain wealth: that which occupies or engages one's - time or attention, vocation, employment, calling, trade; the D business in which a man is usually engaged, lo the knowledge of his neighbour."

According to Black's Law Dictionary Fifth Edition al page 973 "Oc- cupation" means:

E "Possession; control; tenure; use. The act or process by which real property is possessed and enjoyed. Where a person exercises physical control over land.

That which principally takes up one's time, thought, and energies, especially, one's regular business or employ- F ment; also, whatever one follows as the means of making . a livelihood. Particular business, profession, trade, or call- ing which engages individual's time and efforts; employ- ment in which one regularly engages or vocation of his life.' G InP.V.G. Raju v, Commissioner of Expenditure, ITR Vol. 86 page U.⁷ it is observed thus:

"The activity termed as "Occupation', if of wider im- port than vocation or profession. It is also distinct from a H hobby which can be resorted to only in leisure hours for

p. 721 Copy page pinpoint

the purpose of killing time. Occupation, therefore, is that with which a person occupies himself either temporarily or permanently or for a considerable period with continuity of activity. It is analogous to a business, calling or pursuit. A person may have more than one occupation in a previous year. The Occupations may be seasonal or for the whole year."

"Firstly, there can be a business, profession, vocation ~. or occupation without any profit motive or on "no profit no loss basis". To, illust~ate, co·operative societies· or mutual insurance companies may carry on business c without earning any income or without any profit motive. The vocation or occupation to do social service of various kinds for the uplift of the people would also come under this category. The profit motive or earning of income is not an essential ingredient to constitute the activity, -..... termed as business, pr-Jfession, vocation or occupation.11 D

"If any authority is needed, we find it in Commissioner of Expenditure Tax v. Mrs. Manorama Silrabhai, {1966) 59 ITR 262 (Guj.) wherein it was held that the educational activities of the assessees amounted to an occupation E within the meaning of Section 5(a) and that no profit -1.... motive is necessary to treat an activity as .a vocation or occupation within the meaning of Section 5(a). For all these reasons, we must negative this submission of Mr. Ramarao relating to the interpretation of the words "busi· ness, profession, vocation or occupation 11 in section 5(a) F of the Act.'

·-· In P.K. Menon v. Income-tax Commissioner, (1959] Supp. 1 SCR 133 at p. 137 this Court observed as follows: G 'We find no difficulty in thinking that teaching is a vocation if not a profession. It is plainly so and it is not necessary to discuss the various meanings of the word "vocation' for the purpose or to cite authorities to support this view. Nor do we find any reason why, if teaching is a vocation, teaching of Vedanta· is not. It is just as much H

p. 722 Copy page pinpoint

A teaching and therefore, a vocation, as any other teaching. It is said that in teaching Vedanta the appellant was only practising religion. We are unable to see why teaching of Vedanta as a matter of religion is not carrying on of a vocation." B "It is· said that as the word "Vocation" has been used along with the words "business" and "profession" and the object of business and a profession, is to make a profit, only such activities can be included in the word 'Vocation" the object of which likewise is to make a profit. We think that c these contentions lack substance. We do not appreciate the significance of saying that in order to become a vocation an activity must be organised. If by that a continuous, or as was ~aid, a systematic activity, is meant, we have to point out that it is well known that a single act may amount to the carrying on of a business or profession". D The meaning of "business" can be gathered from Law Lexicon Edition 1987 by Ramnath Iyer:

"Business is that which engages the time, talent and interest of a man" E and is what a man proposes to himself. There may be a "Business' without precuniary profit being at all contemplated. .~ 11 Business11 and 1'Trade" : "Business" has a more exten- sive meaning that "Trade" (per Willes, J. Harris v. Amery 35 L.J. C.P.92) But "Ordinarily speaking, Business is synonymous with "Trade", (per Chatterton V.C. Delany v. Deleny, 15 L.R. Ir. 67). There may, however, be a "Busi- ness' without pecuniary profit being at all contemplated In such connection, "Busioess11 is a very much larger word than Trade and the word Businessu is employed in order 11 11 11

to include occupations which would not strictly come within the meaning of the word 'Trade" (per Person, J. Rolls v. Miller, 53 L.J. Ch. 101) per Scruitton. L.J. The words "Trade" and "Business do not mean the same thing 11

..... on business, though usually business is carried on for profit. It is to be presumed that the Railways are run on H a profit, though it may be that occasionally they are run

p. 723 Copy page pinpoint

at a loss." A "Monetary consideration for service is, therefore, not an essential characteristic of industry in a modern State".

In Barendra Prasad Ray v. The Income-tax Officer, A!Rii.981 SC 1047: E [1981) 3 SCR 387 at 400 B and H and 401 A and B it is observed:

"The expression ''business" does Iiot necessarily mean trade or manufacture only. It is being used as including within its scope profession, vocations and calling from a fairly long time. The Shorter Oxford English Dictionary F defines "Business" as stated occupation, profession or _,.,... ·trade" and a man of business" is defmed as meaning ."an attorney" also. In view of the above dictionary meaning of the word "business" it cannot be .said that the definition of business given in Section 45 of the Partnership Act, 1890 G (53 & 54 Viet. C. 39) was an extended definition intended for the purpose of that Act only. Section 45 of that Act says:

'The. expression "Bnsiness" includes every Trade, oc- cupation, or profession". H

p. 724 Copy page pinpoint

A "Section 2(b) of the Indian Partnership Act, 1932 also defines "Business" thus:~

"Business" includes every trade, occupation and profession."

B "The observation of Rowlatt, J. in, Christopher Barker & Sons v. Commissioner of Inland Revenue, (1919) 2 KB 222 at p.228. "All professions are businesses, but all busi- nesses are not professions, ..." also supports the view that professions are generally regarded as business. The same C learned Judge in an other case Commissioner of Inland Revenue v. Marine Steam Turbine Co. Ltd., (1920) I.KB. 193 held:

"The word "Business" however is also used in another and a very different sense, as meaning an active occupa- D tion or profession continuously carried on and it is in this •ense the word is used in the Act with which we are here 11 concerned •

"The word Business'' is one of wide import and it means 11

an activity carried on continuously and systematically by a E person by the application of his labour skill with a view to earning an income. We are of the view that in the context in which the expression "business" is used in Section 9(1) of the Act, there is no warrant for giving a restricted meaning to it excluding professional connections from its scope".

In each of these cases, depending upon the statute, either "occupation'. or "business" has come to be defined. Certainly, it cannot be contended that establishment of an educational institution wonld be "business". Nor again, could that be called trade since no trading activities carried on. Equally, it is not a profession. It is one thing to say that teaching is a profession but, it is a totally different thing to urge that establishment of an educational institution wonld a profession. It may perhaps fall under the category of occupation provided no recognition is sought from the State or affiliation from the Univer- -"". sity is asked on the basis that it is afundamental right. This position is explained below: ·

p. 725 Copy page pinpoint

However, some of the learned counsel relied .on Bangalore Water A Supply and Sewerage Board v. R. Rajappa, [1978) 3 SCR W⁷ to urge that the activity of running an educational institution was ·an industry. In that case, Krishna Iyer, J. observed:

"To christian education as a mission, even if true, is not to negate it being an Industry, we have to look at B education activity from the angle of the Act and so viewed the ingredients of education are fulfilled. Education is, J.. therefore, an industry nothing can stand in the way of that conclusion."

This ruling was relied on in Miss Sundarambai v. Government of Goa, c [1988) Suppl 1 SCR 604 at page 608B. It was held:

"Thus it is seen that even though an educational in- stitution has to be treated as an· industry in view of the decision in the Bangalore Water Supply ·and Sewerage D Board v. R. Rajappa (supra) the question whether teachers in an educational institution can be considered as workmen still remains to be decided."

It requires to be carefully noted that while considering as to what would constitute an industry under the Industrial Disputes Act, these observations E ~ came to be made. Certainly, that is very different from claiming a fundamen- tal right under Article 19(1) (g).

Even on general principles, the matter could be approached this way. Educational institutions can be classified under two categories: F

1. Those requiring recognition by the State and

2. Those who do not require such a recognition,

It is not mere an establishment of educational institution, that is urged by the petitioners, but, to run the ·educational institution dependent G on recognition by the State. There is absolutely no fundamental right to recognition in any citizen. The right to establishment and rim the educa- tional institution with State's recognition arises only on the State permit- ting, pursuant to a policy decision or on the fulfilment of the conditions of the Statute. Therefore, where it is dependent on the permission under the H

p. 726 Copy page pinpoint

A Statute or the exercise of an executive power, it cannot qualify to be a fundamental right. Then again, the State policy may dictate a different course.

The logical corollary of holding that a fundamental right to establish B an educational institution is available under Article 19(1) (g) would lead to the proposition, right to establish a university also. In fact, this Court had occasion to point out in S. Azeez Basha and Anr v. Union of India, [1968] 1 SCR 833 at page 848 thus:

C "Before we do so we should like to say that the words "educational institutions" are of very wide import and would include a university also. This was not disputed on behalf of the Union of India and therefore it may be accepted that a religious minority had the right to establish D a university under Art..30( 1). The position with respect to the establishment of Universities before the Constitution came into force in 1950 was this. There was no law in India which prohibited any private individual or body from establishing a university and it was therefore open to a private individual or body to establish a university. There E is a good deal in common between educational institutions which are not universities and those which are universities. Both teach students and both have teachers for the pur- pose. But what distinguishes a university from any other educational institution is that a university grants degrees of its own while other educational institutions cannot. It is this granting of degrees by a university which distin- guishes it from the ordinary run of educational institutions. (See St. David's College, Lampeter v. Ministry of Educa- tions 19511 Ail E.R. 559). Thus in law in India there was no prohibition against establishment of universities by private individuals or bodies and if any university was so established it must of necessity be granting degrees before it could be called a university. But though such a university might be granting degrees it did not follow that the Government of the country was bound to recognise those degrees."

UNNI KRISHNAN v. STATE OF AP. [MOHAN, J.) 727

It there is no fundamental right to establish a university a fortiori a A \c- fundamental right to establish an educational institution is not available.

By implication also a fundamental right of the nature and character conferred under Article 30 cannot be read into Article 19(1) (g). The conferment of such a right on the minorities in a positive way under Article 30 negatise the assumption of a fundamental right in this behalf in every B citizen of the country.

In Alvnedabad St. Xaviers College Society v. State of Gujarat, (1975] 1 SCR 173 at page 191.it is observed:

"The right to establish and administer educational in- c stitutions of their choice has been conferred on religious and /inquistic minorities so that the majority who can always have their rights by having proper legislation do not pass a legislation prohibiting minorities to establish and administer educational institutions of their choice. If the scope of D Article 30( 1) is made an extension of the right under Article 29{1) as the right to establish and administer educational institutions for giving religious instruction or for imparting education in their religious teachings or tenets the fundamental right of minorities to establish and administer educational institution of their choice will be E taken away.

(Emphasis Supplied)

At page 192 it is observed: F 'Article 30 is a special right to minorities to establish educational institutions of their choice. This Court said that the two Articles create two separate rights though it is possible that the rights might meet in a given case.

The real reason embodied in Article 30 ( 1) of the G Constitution is the conscience of the nation that the minorities, religious as well as linguistic, are not prohibited from establishing and administering educational institu- tions of their choice for the purpose of giving their children the best general education to make them com- H

7'2J!. SUPREME COURT REPORTS [1993) 1 S.C.R.

A plete men and women of the country. The minorities are given this protection under Article 30 in order to preserve and strengthen the integrity and unity of the country. The sphere of general secular education is intended to develop tlie commonness of boys and girls of our country. This is in the true spirit of liberty, ~quality and fraternity through B the medium of education. If religious or linguistic minorities are not given protection under Article 30 to establish and administer educational institutions of their choice, they will feel isolated and separate. General secular education will open doors of perception and act c as the natural light of mind for our countrymen to live in the whole."

Then again, at page 224 it is observed:

D "The idea of giving some special rights to the minorities is not to have a kind of privileged or pampered section of the population but to give to the minorities a sense of oecurity and a feeling of confidence. The great leaders of India since time immemorial had preached the doctrine of tolerance and cathnolicity of outlook. Those noble ideas E were enshrined in the '::onstitution. Special rights fo~ minorities were designed not to create inequality. Theif real effect was to bring about equality by ensuring the preservation of the minority institutions and by guarantee- ing to the minorities autonomy in the matter of the ad- F ministration of these institutions. The differential treatment for the minorities by giving them special rights is intended to bring about an equilibrium, so that the ideal of equality may not be reduced to a mere abstract idea but should become a living reality and result in true, genuine equality, an equality not merely in theory but also G in fact. The majority in a system of adult franchise hardly needs any protection. It can look after itself and protect its interesti;. Any measure wanted by the majority can without much difficulty be brought on the ·statute book because the majority can get that done by giving such a H mandate to the elected representatives. It is only the

p. 729 Copy page pinpoint

minorities who need protection, and article 30, besides some other articles, is intended to afford and guarantee that protection.

(Emphasis supplied)

The argument that every activity or occupation by the mere fact of its not being abnoxious or harmful to society; cannot by itself be entitled to proteCtion as fundamental right. As pointed out above, some rights, by l._ the very nature, cannot be qualified to be protected as fundamental rights.

Accordingly, it is held that there is no fundamental right under C Article 19(1) (g) to establish an educational institution, if recognition or affiliation is sought for such an educational institution. It may be made clear that any one desirous of starting an institution purely for the purposes of educating the students he could do so but Sections 22 and 23 of the University Grants Commission Act which prohibits the award of degrees except by a University must be kept in mind. D

The next question which· calls for determination is; does recognition or affiliation make the educational institution an instrumentality ? We propose to examine this question with reference to the following cases.

In Ajay Hasia v. Khalid Mujib Sehravardi, [1981] 2 SCR 79 at pages E 96 and 97 it was observed:

'The tests for determining as to when a corporation can be said to be an instrumentality or agency of Govern- ment may now be called out from the judgment in the F International Airport Authority's case. These tests are not conclusive or clinching, but they are merely indicative indicia which have to be used with care and caution, because while stressing the necessity of a wide meaning to be placed on the expression "other authorities', it must be realised that it should not be stretched so far as to G bring in every autonomous body which has some nexus with the Government within the sweep of the expression. A wide enlargement of the meaning must be tempered by a wi:;e limitation. We may summarise the relevant tests gathered from the decision in the International Airport H

p. 730 Copy page pinpoint

A Authority's case as follows:

(1) "One thing is clear that if the entire share capital of the corporation is held by Government it would go a long way towards indicating that the corporation is an instrumentality or, agency of Government.' B (2) "Where the fmancial assistance of the State is so much as to meet almost entire expenditure of the corpora- tion, it would afford some indication of the corporation being impregnated with governmental character.' c (3) 'It may also be a relevant factor ... whether the corporation enjoys monopoly status which is the State conferred or State protected."

( 4) 'Existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality."

(5) "If the functions of the corporation of public im- portance and clossely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government."

(6) "Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government.' F If on a consideration of these relevant factors it is found that the corporation is an instrumentality or agency of government, it would, as pointed out in the International Airpon Authority's case, be an 'authority' and, therefore, 'State' within the meaning of the expression in Article 12. G We fmd that the same view has been taken by Chin- nappa Reddy, J. in a subsequent decision of this Court in the U.P. Warehousing Corporation v. Vijay Narain, [1980) 3 sec 459 and the observations made by the learned H Judge in that case strongly reinforced the view, we are

p. 731 Copy page pinpoint

taking particularly in the matrix of our constitutional sys- A tern." k Ranganath Mishra, J. (as he then was), speaking for the Court, after a succinct analysis of the entire case law on the subject concludes in Tekraj Vasandi v. Union of India, (1988) 1 SCC 236 at page 257 as under: B 'We have several cases of societies registered under Societies Registration Act which have been treated as 'State' but in each of those cases it would appear on *-- analysis that either governinental business had been un- dertaken by the Society or what was expected to be the c - public obligation of the 'State' had been undertaken to be performed as a part of the Society's function. In a Welfare State, as has been pointed out on more than one occasion by this Court, governmental control is very pervasive and in fact touches all aspects of social existence. In the absence of a fair application of the tests to be made, there is possibility of turning every non-governmental society into an agency or instrumentality of the State. That ob- viously would not serve the purpose and may be far from reality. A broad picture of the matter has to be taken and a discerning mind has to be applied keeping the realities and human experiences in view so as to reach a reasonable - -~ conclusion. Having given our anxious consideration to the facts of this case, we are not in a position to hold that !CPS is either an agency or instrumentality of the State so as to come within the purview of 'other authorities' in Article 12 of the Constitution. We must say that ICPS is F a case of its type - typical in many ways and the normal ~-- tests may perhaps not properly apply to test its character."

The same learned Judge, after referring to the tests adumberated in ,< Ajay Hasia (supra), holds in All India Sainik Schools Employees' Assn. v. G Sainik Schools Society, (1989) Supp 1 SCC 205 at 212:

- I,... "..... that the Sainik School Society is also 'State'. The entire funding is by the State Governments and the Central Government. The overall control vests in the governmental authority. The main object of the Society is H

p. 732 Copy page pinpoint

A to run schools and prepare stJdents for the purpose of ', feeding the National Defence Academy. Defence of the ~ country is one of the regal functions of the State." l.

Applying these tests, we find it impossible to hold that a private educational institution either by recognition or affiliation to the university B could ever be called an instrumentality of State. Recognition is for the purposes of conforming to the standards laid down by the State. Affiliation is with regard to the syllabi and the course of study. Unless and until they are in accordance with the prescription of the University, degrees would ~ not be conferred. The educational institutions prepare the students for the c examination conducted by the university. Therefore, they are obliged to follow the syllabi and the course of the study. l."-

As a sequel to this, an important question arises: what is the nature of functions discharged by these institutions ? They discharge a public duty. If a student desires to acquire a degree, for example, in medicine, he will D ,,,....- have to route through a medical college. These medical colkges are the instruments to attain the qualification. If, therefore, what is discharged by the educational institution, is a public duty that requires, duty and act fairly.

In such a case, it will be subject to Article 14. E Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvama Jayanti Mahotsav Samarak Trust v. V.R. Rudani, [1989) 2 SCC 691 is an interesting >-.. case where a writ of mandamus was issued to a private college. In para- graph 12 at page 697 it was held:

F "The essense of the attack on the maintainability of the writ petition under Article 226 may now be examined. It is argued that the management of the college being a trust registered under the Bomaby Public Trust Act is not amenable to the writ jurisdiction of the High Court. The contention in other words, is that the trust is a private -- G institution against which no writ of mandamus can be issued. In support of the contention, the counsel relied upon two decisions of this Court : (a) Executive Committee • of Vaish Degree College, Shamli v. Lakshmi Narain, (1976) ~ 2 SCC 58 and (b) Deepak Kumar Bi:;wu.; v. Director of H Public Instructions, [1987) 2 SCC 252. In the first of the