PETITIONER:
UNNI KRISHNAN, J.P. AND ORS. ETC. ETC
Vs.
RESPONDENT:
STATE OF ANDHRA PRADESH AND ORS. ETC. ETC.
DATE OF JUDGMENT04/02/1993
BENCH:
SHARMA, L.M. (CJ)
BENCH:
SHARMA, L.M. (CJ)
BHARUCHA S.P. (J)
PANDIAN, S.R. (J)
JEEVAN REDDY, B.P. (J)
MOHAN, S. (J)
CITATION:
1993 AIR 2178 1993 SCR (1) 594
1993 SCC (1) 645 JT 1993 (1) 474
1993 SCALE (1)290
ACT:
Constitution of India, 1950:
HEADNOTE:
Articles 21, 41, 45 and 46-Right to education-Whether a
fundamental right-Held:Every child/citizen has a tight to
free education up to the age of 14 years and thereafter it
is subject to limits of economic capacity and development of
the State-State obliged to follow directions contained in
Article 45-Article 21 to be construed in the light of
Articles 41, 45 and 46.
Article 21-Right to Education-Whether implicit under the Ar-
ticle-Whether flows from right to life and personal liberty-
Extent and content of the right.
Parts III and IV-Fundamental Rights and Directive
Principles Whether complementary to each other-Whether a
right could be recognised as a fundamental rot even though
not expressly mentioned
Articles 14, 15, 21, 41, 45 and 46-Private unaided
recognised affiliated educational institutions running
professional courses like engineering and medical course-
Whether entitled to charge a fee higher than that charged by
Government institutions-Held:Entitled to charge a higher fee
but such a fee cannot exceed the ceding fixed in this
regard-However, commercialisation of education not
permissible fee-Meaning of.
Whether private aided recognised/affiliated educational
governed by rules and framed by Government in matters of
admission of students and fee chargeable as also recruitment
and conditions of service etc, of teachers and staff.
Whether private recognised/affiliated institutions obliged
to act fairly consistent with Articles 14 and 15 and in
accordance with conditions of grant of recognition
affiliation-Held: as conditions of grant of aid they were
governed by such rules and regulations-Private
institutions receiving aid
595
obliged to act fairly in consonance with fundamental rights
as well as regulations framed by Government-State, while
granting recognition/affiliation obliged to impose
conditions for maintaining standards and ensuring fairness,
inter alia, in respect of fees chargeable and admission.
Admission and charging of capitation fees in private
unaided/aided recognised/affiliated educational institution
conducting professional courses such as medical and
engineering courses-Scheme framed by Court eliminating
discretion of management in admissions in and fees payable
in such institutions and substituting merit of the students
as the sole criterion.
Article 12-Private insupplementing State function viz.,
imparting education-Whether aninstrumentality of State-
"ether public duty performed by it viz,imparting of
education would make it amenable to Pail III, such as
Articles 14 and15.
Articles 19(1)(g) and (6(-Right to establish and run
educational institutions-Whether a fundamental right-
Imparting education-Whether a commercial activity of
establishing an education institution Whether a profession-
Words 'Profession', 'Occupation, 'Trade' and 'Business'-
Meaning of.
Articles 12 14, A 19(1)(g), 21, 30, 41, 45 and 4 ether
private educational institutions have a fundamental right to
recognition/affiliation-Whether such a right can be inferred
by reading into Article 19(1) (g) a right in the of Article
30.
Articles 29 and 30-Rights conferred on minorities in a
positive way-Whether negate the assumption of such rights by
other citizens.
A.P. Educational Institutions (Regulation of Admission and
Prohibition of Capitation Fee) Act 1983.
Section 3-A-Power to grant admission to students who
qualified in entrance/qualifying examination irrespective of
their ranking in the examination and to charge any amount in
addition to tuition fee-Whether violative of Article 14 of
the Constitution.
Karnataka Educational Institutions (Prohibition of
Capitation Fee) Act 1984/Maharashtra Educational
Institutions (Prohibition of Capitation Fee) Act 1987/Tamil
Nadu Educational Institutions (Prohibition of Collec-
596
tion of Capitation Fee) Act 1992. Constitutional validity
of-Held: Constitutional as they do not contain provisions
offending Article 14 of the Constitution.
In the writ petitions flied before this Court, the
correctness of the decision of this Court in the case of
Mohini jain v. State of Karnataka and Others, [1992] 3 SCC
p. 666 was challenged by private educational institutions,
engaged in or proposing to engage in imparting medical and
engineering education in the States of Andhra Pradesh,
Karnataka, Maharashtra and Tamil Nadu.
In Mohini Jain's case, this Court had held, inter alit; that
every citizen has a right to education under the
Constitution; the State was under an obligation to establish
educational institutions to enable the citizens to enjoy the
said right; the State may discharge its obligation through
State owned or State-recognised educational institutions;
that when the State Government granted recognition to the
private educational institutions, it created an agency to
fulfil its obligation under the Constitution, that charging
capitation fee in consideration of admission to educational
institutions, was a patent denial of a citizen's right to
education under the Constitution and that the State action
in permitting capitation fee to be charged by State-
recognised educational institutions was wholly arbitrary
and, as such, violative of Article 14 of the Constitution;
that the capitation fee brought to the fore a clear class
bias; and that when the State Government permitted a private
medical college to be set up and recognised its curriculum
and degrees, then the said college was performing a funtion
which under the Constitution had been assigned to the State
Government and If the State permitted such institution to
charge higher fee from the students, such a fee was not
tuition fee, but in fact a capitation fee.
The aforesaid decision was followed by the Full Bench of the
A.P. High Court in Kranti Parishad v. N.J. Reddy, [1992] 3
ALT " while allowing the writ petitions filed before it
challenging the permission granted by the State Government
for the establishment of private Medical and Dental Colleges
in the State and also the constitutional validity of section
3-A of the Andhra Pradesh Educational Institution
(Prohibition of Capitation Fee) Act, 1983. The respondents
before the High Court, including the State, riled Special
Leave Petitions against the High Court's judgment Besides
several writ petitions questioning the correctness of the
decision of this Court in Mohini Jain's case also were
flied.
597
The validity of the State enactments of Karnataka, Tamil
Nadu and Maharashtra and the notifications issued thereunder
on the subject of charging of excess fee from the students
was also questioned In the writ petitions, civil appeals and
Special Leave Petitions filed before this Court.
It was contended that (a) the State had no monopoly in the
matter of imparting education; every citizen had the
fundamental right to establish an educational institution as
a part of the right guaranteed to him by Article 19(1)(g) of
the Constitution, which extended even to the establishment
of an educational institution with a profit motive i.e., as
a business adventure; the said right was absolute-subject,
of course, to such reasonable restrictions as may be placed
upon it by a law within the meaning of clause (6) of Article
19; (b) the vice was not in the establishment of educational
institutions by individuals and private bodies but in
unnecessary State control; the law of demand and supply must
be allowed a free play, (c) the establishment of an
educational institution was no different from any other
venture eg., starting a business or Industry, It was
immaterial whether the institution was established with or
without profit motive; only when there was profit motive
that persons with means would come forward to open more and
more schools and colleges; (d) even If It was held that a
person had no right to establish an educational institution
as a business venture, he had atleast the right to establish
a self-financing educational institution, which institution
might also be described as one providing cost-based
education; and thus, it was open to a person to collect
amounts from willing parties and establish an institution to
educate such persons or their children, as the case may be;
the quantum of the fees to be charged in such institution
should be left to the concerned institution and the
Government should have no say in the matter, it was not
possible for the Court in the very nature of things, to go
into the issue; these private educational institutions were
providing a large number of 'free seats' to the nominees of
the Government, and all these students would not have had an
opportunity of studying the course of their choice but for
the existence of these private educational institutions; (e)
in these circumstances, Mohini Jain's case was not right in
saying, that charging of any amount, by whatever name it was
called, over and above, the fee charged by the Government in
its own colleges, must be described as capitation fee, and
saying so amounted to imposing an impossible condition, it
was not possible for the private educational institutions to
survive if they were compelled to charge only that fee as
was
598
charged in Governmental institutions; the cost of educating
an engineering or a medical graduate was very high; all that
cost was home by the State in Governmental Colleges; since
the State was not subsidising the private educational
institutions, these institutions had to find their own and
that could come only from the students; (f) even if the
right to establish an educational institution was not trade
or business within the meaning of Article 19(1) (g), it was
certainly an 'occupation' within the meaning of the said
clause; the use of the four expressions-profession,
occupation, trade or business in Article 19(1)(g) was meant
to cover the entire field of human activity, and the
petitioners had the right to establish private educational
institutions- at any rate, self-financing/cost-based private
educational institutions, which would be restricted only by
a law as contemplated by clause (6) of Article 19; (g) the
right to establish and administer an educational institution
(by a member of the minority community, religious or
Lnguistic) arose by necessary implication from Article 30;
the Constitution could not have intended to confine the said
right only to minorities and deprive the majority
communities therefrom; (h) the Government or the University
could insist or stipulate as a condition of
recognition/affiliation that the private educational
institutions should admit students exclusively on merit:
moreover, there might be several kinds of private
educational institutions which might be established for
achieving certain specified purposes viz., to cater to the
needs of a particular region or a district, or to educate
children of members of a particular community, (1) by virtue
of mere recognition and/or affiliation these private
educational institutions did not become instrument of the
State within the meaning of Article 12 of the Constitution;
the concept of State action could not be extended to those
colleges so as to subject them to the discipline of Part
111; it might be a different matter V the institution was in
receipt of any aid, partially and wholly, from the State; in
such a situation, the command of Article 29 (2) came into
play, but even that did not oblige the institution to admit
the students exclusively on the basis of merit but only not
to deny admission to anyone on any of the, grounds mentioned
therein, and (i) that Article 21 was negative in character
and it merely declared that no person should be deprived of
his life or personal liberty except according to the
procedure established by law, and since the State was not
depriving the respondents-students of their right to
education, Article 21 was not attracted.
On behalf of the respondents and the Indian Medical Council
and
599
All India Council for Technical Education it was contended
that; (a) imparting of education bad always been recognised
from does immemorial as the religious duty and also as a
charitable object, and as a trade or , business, it was a
mission and not a trade, and commercialisation of education
has always been looked upon with disfavour, the Parliament
expressed its intention by enacting In 1956 the University
Grants Commission Act which specified the prevention of cow
motion of education as one of the duties of the University
Grants Commission which Intention had also been expressed by
several enactment made by the Parliament and State
Legislatures since then; (b) imparting of education was the
most important function of the State which duty might be
by State directly or through the instrumentality of private
educational Institutions; but when State permitted a private
body or an individual to perform the said function, It was
its duty to ensure that so one got an admission or an
advantage on account of his economic power to the detriment
of a more meritorious candidate; (c) the very concept of
collecting the cost of education that was what the concept
of cost-based or self-financing educational Institutions
meant- was morally abhorrent and was opposed to public
policy-, a capitation fee did not cease to be a capitation
fee just because it was called as cost-based education or by
calling the Institution concerned as a self-fianacing
Institution; these expressions were but a over for
collecting capitation fee-, It was nothing but exploitation,
and, was an elitist concept basically opposed to the
constitutional philosephy; the concept suffered from class
bias and by allowing such education, two classes would come
Into being; (d) even If It was held that a citizen or a
person had a dot to establish an educational institution,
the said right did not carry with it the right to
recognition or the right to affiliation, as the case may be;
even a minority educational institution was held by this
Court to have no fundamental right to recolor affiliation;
hence such a right could not be envisaged in the case of
majority community or In the case of individuals or persons,
and it was open to the State or the University according
recognition or affiliation to impose such conditions as they
think appropriate in the Interest of fairness, merit,
maintenance of standards of education and so on, Including
that the admission of students, In whichever category It