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TMI Blog1993 (2) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... T.V.S. Narasimhachari Naresh Kaushik, Navin Batra, B. Veerabhadrappa, Shankar Divate, Mrs. Lalitha Kaushik, S.C. Patel Mohan V. Katarki Shambhu Prasad Singh, Rajeshwar Thakur, Ms. Rani Jethmalani, KV. Viswanathan, Madhu Naik, K.V. Venkataraman, K. Ram Kumar, Vivek Gambhir, S.K Gambhir, B.E. Avadh, M.D. Adkar, C.B. Babu, Smt. Ayajai C.V. Subba Rao, A.Mariarputham, Mrs. Aruna Mathur, Dr. Sumant Bhardwaj, Anuputham, Aruna Co., Ms. Madhu Moolchandani S.A. Sequeira, G.K Shevgoor, R.P. Wadhwani, Dr. J.P. Verghese, M.P. Raju, LJ. Vadakara, P.R. Ramasesh, Anip Sachthey, S.S. Khanduja, Yashpal Dhingra, B.K. Satija, A.M. Majumdar, Sanjay Parikh, A.K. Panda, Karanja Wala, Ajay Malviya, Ranjan Mukherjee, R.K. Mehta, J.R. Das, D.K. Sinha, Mrs. Bharati Sharma, Mrs. Rani Chhabra, Dr. Sumant Bhardwaj, R.S. Hegde, K.R. Nagaraja, Sunil Dogra, Smiriti Misra, Ms. Madhavan, P.H. Parekh, A.S. Bhasme, Vimal Dave and B. Rajeshwar Rao for the appearing parties. JUDGEMENT SHARMA, CJ. We have had the benefit of going through the two judgments of our learned Brothers B.P Jeevan Reddy and S. Mohan, JJ. We are in agreement with the judgment of Brother B.P. Jeevan Reddy, J. except to the extent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view that if it becomes necessary to decide, his question in any subsequent case then, for the reasons set out above and having regard to its vast impact, inter alia on the country's financial capacity, the question may be referred to a larger Bench for decision. 5.For the purposes of these cases, it is enough to state that there is no Fundamental Right to education for a professional degree that flows from Article 21. B.P. JEEVAN REDDY, J. In these writ petitions, filed by private educational institutions engaged in or proposing to engage in imparting medical and engineering education the correctness of the decision rendered by a Division Bench comprising Kuldip Singh and R.M. Sahai JJ. in Miss Mohini Jain V. State of Karnataka and Ors., is called in question. The petitioners,running medical/engineering colleges in the States of Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu, say that if Mohini Jain is correct and is followed and implemented by the respective State Governments as indeed they are bound to they will have to close down; no other option is left to them. It is, therefore, necessary in the first instance to ascertain what precisely does the said decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the proviso to section 3. (3)Every educational institution shall issue an official receipt for the fee or capitation fee or deposits or other amount collected by it. (4)All monies received by any educational institution by way of fee or capitation fee or deposits or other amount shall be deposited in the account of the institution, in any Scheduled Bank and shall be applied and expended for the improvement of the institution and the development of the educational facilities and for such other related purpose and to such extent and in such manner as may be specified by order by the Government. (5)In order to carry out the purposes of sub-section (4), the Government may require any education institution to submit their programmes or plans of improvement and development of the institution for the approval of the Government. 3.Section 4 provides for regulation of admission in the educational institutions in the State. According to sub- section (1), the maximum number of students for admission that can be admitted to a course of study and the minimum qualifications shall be fixed by the Government. However, in the case of a course of study in an institution maintained by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eats that may be filled at the discretion of the management. (It is obvious that if the seats to be filled on the basis of merit/refundable deposit are not specified, all the seats other than Government seats can be filled at the discretion of the management;) (iii) the number of 'Karnataka students' (which expression is defined by the explanation) should not be less than 50% over-all; (iv) in case, the number of seats to be filled on merit-cum-refundable deposit are specified, a selection committee, as contemplated by sub-section (3) has to be formed for making the selection. The expression Government seats is defined in clause (e) of Section 2 in following words: (e) Government Seats means such number of seats in such educational institution or class or classes of such institutions in the state as the Government may, from time to time, specify for being filled up by it in such manner as may be specified by it by general or special order on the basis of merit and reservation for Scheduled Castes, Scheduled Tribes, Backward Classes and such other categories, as may be specified, by the Government from time to time, without the requirement of payment of capitati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 of the Constitution: (a) the framers of the Constitution made it obligatory for the State to provide education for its citizens ; (b)the objectives set forth in the preamble to the Constitution cannot be achieved unless education is provided to the citizens of this country, (c)the preamble also assures dignity of the individual. Without education, dignity of the individual cannot be assured; (d)Parts III and IV of the Constitution are supplementary to each other. Unless the 'right to education' mentioned in Article 41 is made a reality, the fundamental rights in Part III will remain beyond the reach of the illiterate majority, (e)Article 21 has been interpreted by this Court to include the right to live with human dignity and all that goes along with it. The 'right to education' flows directly from right to life.' In other words, 'right to education' is concomitant to the fundamental right enshrined in Part III of the Constitution. The State is under a constitutional mandate to provide educational institutions at all levels for the benefit of citizens. The benefit of education cannot be confined to either classes. (f)Capitation fee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulum and degrees then the said college is performing a function which under the Constitution has been assigned to the State Government. We are therefore of the view that ₹ 60,000 per annum permitted to be charged from Indian students from outside Karnataka in Para 1 (d) of the notification is not tuition fee but in fact a capitation fee and as such cannot be sustained and is liable to be struck down. 10.The notification impugned was accordingly held to be outside the scope of the Act and bad. (It was declared that the judgment shall not be applicable to foreign students and N.R.Is.). The Writ petition was allowed accordingly but Mohini fain was denied admission since she was not admitted to the college 3n merit and secondly the course commenced in March-April, 1991. (The decision was rendered on 30.7.1992). It was directed that the said decision shall have only prospective operation and shall not affect the admissions already made in accordance with the said notification. It is the above propositions that have provoked this batch of writ petitions. 11. Mohini Jain was followed by a Full Bench of the Andhra Pradesh High Court in Kranti Sangram Parishad v. NJ. Reddy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and control. Section 18 says that Government may, for the purpose of implementing the provisions of the Act, provide adequate facilities for imparting education either by establishing and maintaining educational institutions by itself or by permitting any local authority or private body of persons to establish and maintain educational institutions. Section 19 classifies the educational institutions into (a) State institutions (b) local authority institutions and (c) private institutions. Section 20 deals with grant of permission for establishment of educational institutions. It says that the competent authority (as defined in Clause (12) of Section 2) shall from time to time conduct a survey to identify the educational needs of the locality under its jurisdiction and notify in the prescribed manner through the local newspapers calling for applications from the educational agencies desirous of establishing educational institutions. In pursuance of such notification, applications may be filed either by existing institutions or new institutions as also by local authorities for establishment of new institutions or for expansion of the existing ones. Sub-section (3) prescribes the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional institution fails to fulfil all or any of the conditions of recognition or commits any of the other irregularities mentioned in sub-section (2), its recognition may be withdrawn. It is not necessary to notice to other provisions in the Act. 14.In the year 1983, the Legislature of Andhra Pradesh enacted the Andhra Pradesh Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983. The Act was made to provide for regulation of admission into educational institutions and to prohibit the collection of capitation fee in the State of Andhra Pradesh. It would be appropriate to notice the preamble to the Act. It reads: Whereas the undesirable practice of collecting capitation fee at the time of admitting students into educational institutions is on the increase in the State; And whereas, the said practice has been contributing to large scale commercialisation of Education; And whereas, it is considered necessary, to effectively curb this evil practice in order to avoid frustration among the meritorious and indigent students and to maintain excellence in the students of education; Be it enacted by the Legislature of the State of Andhra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer to make rules to carry out the purposes of the enactment. 16. The 1983 Act was amended in the year 1992 by inserting Section 3-A, which section reads as follows: Notwithstanding anything contained in Section 3, but subject to such rules as may be made in this behalf and the Andhra Pradesh Educational Institutions (Regulation of Admission) Order 1974, it shall be lawful for the management of any un-aided private Engineering College, Medical College, Dental College and such other class of un-aided educational institutions as may be notified by the Government 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 examination, as the case may be, referred to in sub-section (1) of Section-3 irrespective of the ranking assigned to them in such test or examination and nothing contained in Section 5 shall apply to such admission. It is necessary to notice what precisely this Section provides for. It starts with a non-obstante clause 'Notwithstanding anything contained in Section 3, but subject to such rules as m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court challenging the said grant as well as Section 3-A. 18.There are a number of private engineering colleges in the State. Until the current academic year (1992-1993), all the seats in these colleges were filled in by the convenor of the common entrance examination. The management had no discretion or choice in the matter of admission of students. They were, however, permitted to charge a particular fees which was relatively higher than the fees charged in the Government Engineering Colleges. Nothing more. But when Section 3-A was introduced in the 1983 Act on 15.4.1992, these private engineering colleges took the stand that they are entitled to admit students to the extent of 50 per cent of the seats according to their choice, irrespective of merit, so long as they have qualified in the entrance test. It is obvious that such a stand meant collection of capitation fee as much as they could. There was an uproar among the student and teaching community against such admissions. Even the Government could not ignore the said protest and intimated the private engineering colleges on 26.7.1992 not to make any admissions till the Rules are made under Section 3-A. The engineering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the National Policy on Education envisages that the commercialisation of technical and professional education should be curbed and that steps should be taken to prevent the establishment of institutions set up to commercialise education; AND WHEREAS with a view to effectively curb this evil practice, it is expedient in the public interest to prohibit collection of capitation fee for admission of students to, and their promotion to a higher standard or class in, the educational institutions in the State of Maharashtra and to provide for matters connected therewith; it is hereby enacted in the Thirty- eighth year of the Republic of India as follows: 21. Section 2 defines certain expressions occurring in the Act. Clause (a) defines capitation fee to mean any amount, by whatever name called, whether in cash or kind, paid or collected, directly or indirectly, in excess of the prescribed or, as the case may be, approved, rates of fees regulated under section-4 . Sub-Section (1) of Section 3 prohibits the collection of capitation fee either for admission of a student or for his promotion to higher class. Sub-Section (2), however, permits the management of an educational instituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State Government to start an un-aided medical college at Aurangabad. It is stated that the appellant is a Public Charitable Trust registered under Societies Registration Act, 1860 as well as Bombay Public Trusts Act, 1950. The medical college is affiliated to Marathwada University and is also recognised by the Maharashtra medical council. The total intake capacity is to seats each year. The permission to start medical college was accorded to the appellant on no-grant-in-aid basis. The appellant was allowed to fill 20% of the seats at their discretion from among those students who have obtained a minimum of 50% of the marks in the aggregate in specified subjects and have passed the qualifying examination in their first attempt. (There is no system of common entrance test in Maharashtra). Admissions were accordingly made for the current academic year. Soon after the decision of this court in Mohini Jain a large number of students filed a writ petition in the High Court of Bombay (Aurangabad Bench) claiming refund of the fee collected from them in excess of the fee prescribed by the Government for students admitted in government medical colleges for such course. A Division Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic interest, by prohibiting the collection of capitation fee and to provide for matters relating thereto; BE it enacted by the Legislative Assembly of the State of Tamil Nadu in the Forty-third year of the Republic of India as follows: 27.The Act has been given effect from 20th day of August, 1992, the date on which the ordinance was issued. The expression 'capitation fee' is defined in Clause (a) of Section 2 to mean any amount, by whatever name called, paid or collected, directly or indirectly, in excess of the fee prescribed under Section 4. Section 3 prohibits the collection of capitation fee by any educational institution or by any person on its behalf. Section 4 empowers the government to regulate the fee chargeable in educational institutions. Once such a notification is issued, no institution can charge or collect any fee over and above the fee prescribed. The Section reads thus: 4. (1) Notwithstanding any contained in any other law for the time being in force, the Government may, by notification, regulate the tuition fee or any other fee or deposit that may be received or collected by any educational institution or class or classes of such educational ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proved intake of the college adhering to the minimum mark rule prescribed for Government Medical Colleges. The remaining 40% of the seats are allowed by the Director of Medical Education every year and this is filled from among the approved list of candidates selected for admission to Government and Private Medical Colleges. The self-financing private Engineering Colleges are allowed to admit candidates of their choice up to 50% of approved intake of the college under Management quota. The remaining 50% of the seats are allowed by the Director of Technical Education every year from among the approved list of candidates selected for admission to Government and aided colleges. True copies of the orders passed by the Government of Tamil Nadu are annexed hereto. DATED AT DELHI THIS 10TH DAY OF DECEMBER, 1992. COUNSEL FOR TAMIL NADU. 28.Sri Seetharaman further stated that the Government will insist that from the students admitted against 40% government seats, only the fee collected in government medical colleges will be allowed to be collected. He also brought to our notice that the government has constituted a committee to go into and frame rules regulating the fee structure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possible for the petitioner to run the medical college which is attached to a hospital. While so, the Governor of Tamil Nadu has issued the aforesaid ordinance prohibiting the capitation fee. This ordinance has evidently been issued pursuant to the decision of this Court in Mohini Join. if the petitioner is compelled to collect only that fee which is charged by the Government in Government Medical Colleges, it would be impossible to run the medical college. It has to close down. The impugned ordinance (by the date of filing of writ petition the Act replacing the ordinance had not yet come into force) is violative of the fundamental right of the petitioners to establish and administer a medical college by collecting appropriate amounts from the students who are ready and willing to pay the same for their admission into the medical college, says the petitioner. PART II Question No. 1.- Whether the Constitution of Inda guarantees a fundamental right to education to its citizens?' 31.Right to education is not stated expressly as a fundamental right in Part Ill. This Court has, however, not followed the rule that unless a right is expressly stated as a fundamental right, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts) in Munn v. Illinois, (1877 (94) U.S. 113/142 attributing a broader meaning to the word fife' in the fifth and fourteenth amendments to the U.S. Constitution, which correspond inter alia to Article 21 of our Constitution. The learned Judge held that the word 'personal liberty' would include the privacy sanctity of a man's home as well as the dignity of the individual. The minority Judges, however, placed a more expansive interpretation on Article 21. They said: No doubt the expression' personal liberty' is a comprehensive 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 personal liberty and, therefore, the expression 'personal liberty' in Art. 21 excludes that attribute. In our view, this is not a correct approach. Both are independent fundamental rights, though there is overlapping. 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 infringed, the State can rely upon a law to sustain the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to fife. That, which alone makes it possible to live, leave aside what makes life viable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life......... Article 39(a) of the Constitution, which is a Directive Principle of State Policy, provides that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood. Article 41, which is another Directive Principle provides, inter 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 Principles contained in Articles 39(a) and 41 must be regarded as equally fundamen- tal in the understanding and interpretation of the meaning and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing of the charges. Interplay of parts III and IV/- 38.This Court has also been consistently adopting the approach that the fundamental rights and directive principles are supplementary and complementary to each other and that the provisions in Part III should be interpreted having regard to the Preamble and the directive principles of the State policy. The initial hesitation to recognise the profound significance of Part IV has been given up long ago. We may explain. While moving for consideration the interim report on fundamental rights, Sardar Vallabhai Patel described both the rights mentioned in Pam III and IV as 'fundamental rights' one justificiable and other non-justiciable. In his supplemental report, he stated: There were two parts of the report; one contains fundamental rights which were justiciable and the other part of the report refers to fundamental rights which were not justiciable but were directives. This statement indicates the significance attached to directive principles by the founding fathers. It is true that in The state of Madras v. Champakam Dorairajan 119591 S.C.R. 995, fundamental rights were held preeminent vis-a- vis Directive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive, executive and judicial. What then is the importance to be attached to the fact that the provisions of Part III are enforceable in a Court and the provisions in Part IV are not? Is it that the rights reflected in the provisions of Part III are somehow superior to the moral claims and aspirations reflected in the provisions of Part IV? I think not. Free and compulsory education under Article 45 is certainly as important as freedom of religion under Article 25. Freedom from starvation is as important as right to life. Nor are the provisions in Part III absolute in the sense that the rights represented by them can always be given full implementation. Y.V. Chandrachud, J. (as he then was) put the same idea in the following words: As I look at the provisions of Parts III and IV, I feel no doubt, that the basic object of conferring freedoms on individuals is the ultimate achievement of the ideals set out in Part IV..... May I say that the directive principles of State policy should not be permitted to become 'a mere rope of sand'. If the State fails to create conditions in which the fundamental freedoms can be enjoyed by all, the freedom of the few will be at the merc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mukti Morcha, that right to education is implicit in and flows from the right to life guaranteed by Article 21. That the right to education has been treated as one of transcendental importance in the life of an individual has recognised not only in this country since thousands of years, but all over the world. In Mohini Jain the importance of education has been duly and rightly stressed. The relevant observations have already been set out in para 7 hereinbefore. In particular, we agree with the observation that without education being provided to the citizens of this country, the objectives set forth in the Preamble to the Constitution cannot be achieved. The Constitution would fail. We do not think that the importance of education could have been better emphasised than in the above words. The importance of education was emphasised in the 'Neethishatakam' by Bhartruhari (First Century B.C.) in the following words: Translation: Education is the special manifestation of man; Education is the treasure which can be preserved without the fear of loss; Education secures material pleasure, happiness and fame; Education is the teacher of the teacher; Education is God inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not determined by perception of threat. The content of right to life is not to be determined on the basis of existence or absence of threat of deprivation. The effect of holding that right to education is implicit in the right to fife is that the State cannot deprive the citizen of his right to education except in accordance with the procedure prescribed by law. 45.In the above state of law, it would not be correct to contend that Mohini Jain was wrong in so far as it declared that the right to education flows directly from right to life.' But the question is what is the content of this right? How much and what level of education is necessary to make the life meaningful? Does it mean that every citizen of this country can call upon the State to provide him education of his choice? In other words, whether the citizens of this country can demand that the State provide adequate number of medical colleges, engineering colleges and other educational institutions to satisfy all their educational needs? Mohini Jain seems to say, yes. With respect, we cannot agree with such a broad proposition. The right to education which is implicit in the right to fife and personal liberty gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scribed by the limits of the economic capacity of the State and its development We may deal with both these limbs separately. Right to free education for all children until they complete the age of fourteen years (45-A). It is noteworthy that among the several articles in part IV, only Article 45 speaks of a time-limit; no other article does. Has it no significance? Is it a mere pious wish, even after 44 years of the Constitution? Can the State flout the said direction even after 44 years on the ground that the article merely calls upon it to endeavour to provide the same and on the further ground that the said article is not enforceable by virtue of the declaration in Article 37. Does not the passage of 44 years more than four times the period stipulated in Article 45 convert the obligation created by the article into an enforceable right? In this context, we feel constrained to say that allocation of available funds to different sectors of education in India discloses an inversion of priorities indicated by the Constitution. The Constitution contemplated a crash programme being undertaken by the State to achieve the goal set out in Article 45. It is relevant to notice that Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngest reasons to carry out the programme of giving primary schooling the highest priority. It is generally the poorest countries that are spending least, even relatively, on primary education, and that are permitting the largest distortions from the planned targets in favour of secondary and tertiary education.' In his other book 'Challenge of World Poverty' (published in 1970) he discusses elaborately in chapter 6 'Education' the reasons for and the consequences of neglect of basic education in this country. He quotes J.P. Naik, (the renowned educationist whose Report of the Education Commission, 1966 is still considered to be the most authoritative study of education scene in India) as saying 'Educational development......... is benefiting the 'haves' more than the have not'. This is a negation of social justice and 'planning' proper' and our constitution speaks repeatedly of social justice (Preamble and Article 38(1)). As late as 1985, the Ministry of Education has this to say in para 3.74 of its publication Challenge of Education a policy perspective . It is stated there: 3.74. Considering the constitutional imperative regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion System with one of the largest systems in the world, providing accessibility within 1 Km. distance of Primary schools to 8.26 habitations con- taining about 94% of the country's population. Growth in enrolment in the decade of 80s showed an acceleration that has now brought enrolment rates close of 100% at primary stage.' Again in para 4, under the sub-heading Free education , the following statement occurs: 4. In the endeavour to increase enrolment and achieve the target of UEE, all State Governments have abolished tuition fees 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, schools bags, transport etc. are not borne by States except in a very few cases by way of incentives to children of indigent families or those belonging to Scheduled Caste/Scheduled Tribes categories. The reason why the State Government are unable to bear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate to provide educational facilities to him within the limits of its economic capacity and development. By saying so, we are not transferring Article 41 from part IV to Part III we are merely relying upon Article 41 to illustrate the content of the right to education flowing from Article 21. We cannot believe that any State would say that it need not provide education to its people even within the limits of its economic capacity and development. It goes without saying that the limits of economic capacity are, ordinarily speaking, matters within the subjective satisfaction of the State. 49.In the fight of the above enunciation, the apprehension expressed by the counsel for the petitioners that by reading the right to education into Article 21, this Court would be enabling each and every citizen of this country to approach the courts to compel the State to provide him such education as he chooses must be held to be unfounded. The right to free education is available only to children until they complete the age of 14 years. Thereafter, the obligation of the State to provide education is subject to the limits of its economic capacity and development. Indeed, we are not stating anyt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trictions, the right is absolute. (b)The vice lies not in the establishment of educational institutions by individuals and private bodies but in unnecessary State control. The law of demand and supply..... what may be called the 'market forces....... must be allowed a free play. Because there are more number of persons seeking admission that the existing institutions can provide that the several ins complained of have developed. (c)The establishment of an education institution is no different from any other venture e.g., starting a business or industry. It is immaterial whether the institution is established with or without profit motive. Indeed, only when there is profit motive that persons with means would come forward to open more and more schools and colleges. There are not many persons available today who are prepared to donate large funds for establishing such institutions by way of charity or philantrophy. (d)Even if it is held, for any reason, that a person has not right to establish an education institution as a business venture, he has atleast the right to establish a self-financing educational institution. Such a institution may also be described as an insti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... medical graduate is' very high. All that cost is borne by the State in Governmental colleges but the State does not subsidise the private educational institutions. The private educational institutions have to find their own finances and that can come only from the students. (f)Even if the right to establish an educational institution is not trade or business within the meaning of Article 19(1)(g), it is certainly an 4occupation' within the meaning of the said clause. Indeed, the use of the four expressions profession, occupation, trade or business in Article 19(1)(g) was meant to cover the entire field of human activity. In such a situation, it is not necessary for the petitioners to pinpoint to which particular expression does their activity relate. It is enough to say that the petitioners do have the right to establish private educational institutions at any rate, self-financing/cost- based private educational institutions. This right can 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 majority community, religion or linguistic) arises by necessary impl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) comes into play but even that does not oblige the institution to admit the students exclusively on the basis of merit but only not to deny admission to anyone any of the grounds mentioned therein. 52.On the other hand, it is contended by the learned counsel for the respondents as also by the learned counsel for the India Medical Council and All India Council for Technical Education that: (a) imparting of education has always been recognised in this country from times immemorial as the religious duty. Both Hinduism and Islam treated it as such. It has also been recognised as a charitable object. But never has it been recognised as a trade or business. It is a mission, not a trade. Commercialization of education has always been looked upon with disfavor in this country. As far back as in 1956, the Parliament expressed its intention by enacting the University Grants Commission Act which specified the prevention of commercialization of education as one of the duties of the University Grants Commission. The same intention has been expressed by several enactments made by the Parliament and State Legislatures since then. (b)Imparting of education is the most important function of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate action'. The fact that these institutions perform an important public function coupled with the fact that their activity is closely inter-twined with governmental activity, characterises their action as 'State action'. At the minimum, the requirement would be to act fairly in the matter of admission of students and probably in the matter of recruitment' and treatment of its employees as well. These institutions are further bound not to charge any fee or amount over and above what is charged in similar governmental institutions. If they need finances, they must find them through donations or with the help of religious or charitable organisations. They cannot also say that they will first collect capitation fees and with that money, they will establish an institution. At the worst, only the bare running charges can be charged from the students. The capital cost cannot be charged from them. 53.Before we express ourselves upon the rival contentions urged by the parties, it would be appropriate to notice the relevant statutory provisions-. UNIVERSITY GRANTS COMMISSION ACT. 54.The University Grants Commission Act was enacted by the Parliament in 1956 to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y by reason of economic power and thereby prevents a more meritorious candidate from securing admission to such course of study-, and (d) all other relevant factors, the Commission is satisfied that it is necessary so to do in the public interest, it may, after consultation with the University or Universities concerned, specify the regula- tions the matters in respect of which fees may be charged, and the scale of fees in accordance with which fees shall be charged in respect of those matters on and from such date as may be specified in the regulations in this behalf, by any college providing for such course of study from or in relation to any student in connection with his admission to and prosecution of such course of study- Provided that different matters and different scales of fees may be so specified in relation to different Universities or different classes of colleges or different areas. Sub-Section (3) then says that where regulations of the nature referred to in sub-section (2) have been made, no college shall levy or charge fees in excess of what is specified. Sub-section (4) provides the consequence of violation by any college of such regulations. Sub-section (5) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t also provides the procedure for any University or Medical institution applying to the Central Government for recognising new or other qualifications. Section 13 says that the medical qualifications granted by medical institutions in India not included in the First Schedule but included in Part I of the Third Schedule shall also be recognised medical qualifications for the purposes of the Act. Section 19 provides for withdrawal of recognition in cases where the Council finds lowering of standards of proficiency, knowledge or skill. Section 21 provides for the maintenance of an Indian Medical Register. Section 27 says that a person registered in the Indian Medical Council Register shall be entitled to practice as a medical practitioner in any part of India and to recover in due course of law in respect of such practice any expenses, charges or fees to which he is entitled. Section 32 confers the rule making power upon the Government while Section 33 confers the regulation making power upon the Council. The First Schedule mentions the names of the Universities and the recognised medical qualifications awarded by them. Same is done by Part I of the Third Schedule. ALL INDIA COUNCI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dents in any form. The proforma further stipulates that in the event of non-com- pliance of any of the orders and directions issued by the Council or the terms of the undertaking, it shall be open to the Council to take appropriate action including withdrawal of its approval or recognition, which automatically entails stoppage of financial grant or assistance from the Central and State Government. It is also brought to our notice that the Council has issued guidelines for admission to Engineering Degree and Engineering Diploma programmes in G.S.R. 320 dated 15th June, 1992 in exercise of the power conferred upon it by Section 23(1) of the Act (Section 23 of the Act confers the regulation making power upon the Council). STATE ENACTMENTS: 58.As mentioned in Part I of this judgment, the States of Andhra Pradesh, Karnataka, Maharashtra and recently the state of Tamil Nadu have all enacted legislation prohibiting the charging of capitation fee. We had also set out the Preamble to the Andhra Act which Preamble is to be found almost in every such enactment. We had referred to the A.P. Education Act, 1982 as well which provides that no educational institution shall be established ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of their Gross National Product on education, our expenditure on education is only three per cent of the Gross National Product. Seventy five to eight per cent of the expenditure goes in paying the salaries of the teachers and other connected staff. These are the statements made in the Government of India publication 'Challenge of Education a policy pe rspective referred to hereinbelow. Even so, on account of lack of proper supervision, lack of self- discipline and commitment, the quality and standard of instruction in most of the Government schools and colleges except the professional colleges is woeful. This has provided an occasion and an opportunity to private educational institutions to fill the void, both in terms of meeting the need and more particularly in the matter of quality of instruction. Because, the State is in no position to devote more resources and also because the need is constantly growing, it is not possible to do without private educational institutions. In this context, it is appropriate nay, necessary, to notice the stand of the Government of India in this behalf. It is thus: the Central Government does not have the resources to undertake any additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... higher education. The private sector should be involved and indeed encouraged to augment the much needed resources in the field of education, thereby making as much progress as possible in achieving the Constitutional goals in this respect. (e)At the same time, regulatory controls have to be continued and strengthened in order to prevent private educational institutions from commercializing education. (f)Regulatory measures should be maintained and strengthened so as to ensure that private educational institutions maintain minimum standards and facilities. (g)Admissions within all groups and categories should be based on merit. There may be reservation of seats in favour of the weaker sections of the society and other groups which deserve special treatment. The norms for admission should be pre-determined and transparent. The stand of the State Governments of Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu is no different. 61.The hard reality that emerges is that private educational institutions are a necessity in the present day context. It is not possible to do without them because the Governments are in no position to meet the demand particularly in the sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not already imposed. These conditions shall apply to existing as well as proposed private educational institutions. 63.So far as un-aided institutions are concerned, it is obvious that they cannot be compelled to charge the same fee as is charged in Governmental institutions. if they do so voluntarily, it is perfectly welcome but they cannot be compelled to do so, for the simple reason that they have to meet the cost of imparting education from their own resources and the main source, apart from donations/charities, if any, can only be the fees collected from the students. It is here that the concepts of 'self- financing educational institutions' and 'cost-based educational institutions' come in. This situation presents several difficult problems. How does one determine the 'cost of education' and how and by whom can it be regulated? The cost of education may very, even within the same faculty, from institution to institution. The facilities provided, equipment, infrastructure, standard and quality of education obtaining may vary from institution to institution. The court cannot certainly do this. It must be done by Government or University or such other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny occupation, trade or business, or (ii)carrying on by the State, or by a corporation owned or controlled by the State or any trade, business, industry or service whether to the exclusion, complete or partial, of citizens or otherwise.' While we do not with to express any opinion on the question whether the right to establish an educational institution can be said to be carrying on any occupation' within the meaning of Article 19(1)(g), perhaps, it is we are certainly of the opinion that such activity can neither be a trade or business nor can it be a profession within the meaning of Article 19(1)(g). Trade or business normally connotes an activity carried on with a profit motive. Education has never been commerce in this country. Making it one is opposed to the ethos, tradition and sensibilities of this nation. The argument to the contrary has an unholy ring to it. Imparting of education has never been treated as a trade or business in this country since times immemorial. It has been treated as a religious duty. It has been treated as a charitable activity. But never as trade or business. We agree with Gajendragadkar, J. That education in its true aspect is more a mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mental right of the management guaranteed under Article 19(1)(g) of the Constitution. Actually, the issue now before us was not raised or considered in the said decision. Moreover, the decision does not say whether it is a profession, occupation, trade or business. Reliance is then placed upon the Seven Judge Bench decision in Bangalore Water Supply and Sewerage Board v. Rajappa, [1978] 3 S.C.R. 207. Krishna Iyer, J. dealing with the meaning of the expression industry in I.D. Act observed that even educational institutions would fall within the purview of Industry . We do not think the said observation in a different context has any application here. So far as the other decision in State of Maharashtra v. Lok Shikshan Sanstha, [1971] Suppl. S.C.R. 879 is concerned, all that the court held there was that is view of the operation of emergency, Article 19 is not available to the petitioners seeking to establish an educational institution. Article 358 was held to be a bar. But the decision does not say that such a right does inhere in the petitioners. 67.We are also of the opinion that the said activity cannot be called a 'profession' within the meaning of Article 19( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... educational institution, admit students, imparteducation, conduct examination and award certificates to them. But he,or the educational institution has no right to insist that the certificates ordegree (if they can be called as such) awarded by such institution should be recognised by the State much less have they the right to say that the students trained by the institution should be admitted to examinations conducted by the University or by the Government or any other authority, as the case may be. The institution has to seek such recognition or affiliation from the appropriate agency. Grant of recognition and/or affiliation is not a matter of course nor is it a formality. Admission to the privileges of a University is a power to be exercised with great care, keeping in view the interest of the general public and the nation. it is a matter of substantial significance the very life-blood of a private educational institution. Ordinarily speaking, no educational institution can run or survive unless it is recognised by the Government or the appropriate authority and/or is affiliated to one or the other Universities in the country. Unless it is recognised and/or affiliated as stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State. In such a situation, it is obligatory in the interest of general public upon the authority granting recognition or affiliation to insist upon such conditions as are appropriate to ensure not only education of requisite standard but also fairness and equal treatment in the matter of admission of students. Since the recognising/affiliating authority is the 'State' it is under an obligation to impose such conditions as part of its duty enjoined upon it by Article 14 of the Constitution. It cannot allow itself or its power and privilege to be used unfairly. The incidents attaching to the main activity attach to supplemental activity as well. Affiliation/recognition is not there for anybody to get it gratis or unconditionally. In our opinion, no Government, authority or University is justified or is entitled to grant recognition/affiliation without imposing such conditions. Doing so would amount to abdicating its obligations enjoined upon it by Part III; its activity is bound to be characterised as unconstitutional and illegal. To reiterate,, what applies to the man activity applies equally to supplemental activity. The State cannot claim immunity from the obligations a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpression Professional colleges' in this scheme includes: (i) medical colleges, dental colleges and other institutions and colleges imparting Nursing, Pharmacy and other courses allied to Medicine, established and/or run by private education institutions, (ii)colleges of engineering and colleges and institutions imparting technical education including electronics, computer sciences, established and/or run by private educational institutions, and (iii)such other colleges to which this scheme is made applicable by the Government, recognising and/or affiliating authority. The expression appropriate authority means the Government, University or other authority as is competent to grant permission to establish or to grant recognition to a professional college. The expression 'competent authority' in this scheme means the Government/University or other authority, as may be designated by the Government/University or by law, as is competent to allot students for admission to various professional colleges in the given State. It is made clear that only those institutions which seek permission to establish and/or recognition and/or affiliation from the appropriate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of merit determined on the basis of a common entrance examination where it is held or in the absence of an entrance examination, by such criteria as may be determined by the competent authority or the appropriate to authority, as the case may be. It is, however, desirable and appropriate have a common entrance exam for regulating admissions to these colleges/institutions, as is done in the State of Andhra Pradesh. The remaining 50% seats (payment seats) shaft be filled by those candidates who are prepared to pay the fee prescribed therefor and who have complied with the instructions regarding deposit and furnishing of cash security/Bank guarantee for the balance of the amount. The allotment of students against payment seats shall also be done on the basis of inter se merit determined on the same basis as in the case of free seats. There shall be no quota reserved for the management or for any family, caste or community which may have established such college. The criteria of eligibility and all other conditions shall be the same in respect of both free seats and payment seats. The only distinction shall be the requirement of higher fee by the 'payment students'. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired to furnish either cash security or bank grantee 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 colleges their location and also the fees chargeable by each professional college. The brochure win 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 Committee to fix the ceiling on the fees chargeable by a professional college or class of professional 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 shalt however, give opportu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Section 4 of Tamil Nadu Act 57 of 1992. Other States too may have to have similar provisions, carrying statutory force. (7)Any candidate who fulfils the eligibility conditions would be entitled to apply for admission. After the free seats in professional 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 a case, he shall comply with the deposit and cash security/Bank guarantee - 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 professional colleges on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 fight of the above social theory, we direct the State of Andhra Pradesh to adhere to the system derived by us. 71.In view of the above, we do not think it necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (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. 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. 74.We have held hereinbefore that the educational activity of the private educational institutions is supplemental to the main effort by the State and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ₹ 10,000 per annum for the previous year). Of course, all the available seats were filled up by students allotted by the convenor of the common entrance exam; no one could be admitted by these colleges on their own. Now, for the current year, these colleges admitted 50% of the students in their own discretion which necessarily means collection of capitation andior arbitrary admissions for their own private reasons. At the same time, these colleges have been collecting the same fees (Rs. 10,000 per annum) both from the students allottee by the convenor as also from those admitted by themselves. Thus they have reaped a double advantage. 76.It is submitted by Shri Shanti Bhushan the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tand withdrawn. 78.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. 79.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 interlocutory order effective till the disposal of the main Writ Petition. Writ Petition may be disposed of according to law and in the light to this Judgment. PART V 80. 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. 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 Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed and the impugned order is set aside. The main Writ Petition wherein the said interim order has been passed may now be disposed of 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 Andhra Pradesh, without an allotment from the convenor of the common entrance examination) are allowed. The students so admitted for the academic 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, namely: 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)? 3. Does recognition or affiliation make the educational institution an instrumentality? All the the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and philosophers, who will determine the progress of the land. The importance of education has come to be recognised in various judicial decisions. 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 attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is very foundation of good 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 t o adjust normally to his environment. Various fundamental rights enumerated under Part III of our Constitution can be divided into two classes. 1. Injuction restraining the State from denying certain fundamental rights like Articles 14 and 21. 2. A positive conferment of such fundamental rights under Articles 19, 25 and 26 etc. In this connection, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 of the words 'personal liberty' as used in this Article? This question incidentally came up for discussion in some of the judgments in A.K Gopalan v. State of Madras, [1950] SCR 88 : (AIR 1950 SC 27) and the observations made by Patanjali Sastri, J., Mukherjee, J. and S.R. Das, J. seemed 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 question before the Court was no so much the interpretation of the words 'personal liberty, as the inter-relation between Arts. 19 and 21. It was in Kharak Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments to the U.S. Constitution by in Munshi v. Illuonis, [1877] 94 U.S. 113. Accordingly it was held: '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....... 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. Kerala, [1973] Supp. SCR page 1 Mathew, J. stated therein that the fundamental rights themselves have no fixed 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 imperative that the fundamental rights should be subordinated to directive principles. 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 and content by process of judicial construction... Personal liberty in Article 21 is of the widest amplitude';, In this connection, it is worth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o why it cannot be interpreted in the light of Article 45 wherein the State is obligated to provide education up to 14 years of age, within the prescribed time limit. So much for personal liberty. Now coming to life: this Court interpreted in Bandhua Mukti Morcha 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 dignity, 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 (f) of Article 39 and Article 41 and 42 and at the least, therefore, it must include protection of the 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 maternity relief. These are the minimum requirements which must e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of livingn that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would 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 accordance with the procedure established by law, if the right 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 be 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 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 peoples their desertion of their heart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he question to be addressed is, whether life which means to live with dignity, will take within it education as well? To put it more emphatically, 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 of Andhra Pradesh v. Lavu Narendranath, [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 to enter a medical college can be said to affect one's personal liberty guaranteed under that article. Everybody, subject to the eligibility prescribed by the University, was at liberty to apply for admission to the medical college. The number of seats being limited compared to the number of applicants every candidate could not expect to be admitted. Once 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 procedure established by law. Our attention was drawn t o the case of Spottwood v. Sharpe, in which it was held that due process cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew that harmonious interpretation of the fundamental rights vis-a-vis the directive principles must be adopted. We will now refer to some of the important cases. In State of Kerala Anr. v. N.M. 7homas Anr., [1976] 1 SCR 906, 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 apparent inconsistency. The Directive Principles contained in Part IV constitute 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. The Directive Principles form the fundamental feature and the social conscience of the Constitution which enjoins upon the State to implement these Directive Principles. The Directives, thus provide the policy, the guidelines and the end of socioeconomic 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 Dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e principles contained in the Constituion observed as follows: The avowed purpose of our constitution is to create 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 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.' 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 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. We can never forget, except at our peril that the Constitution obligates the State to ensure an adequate means of livelihood to its citizens and to see that the health and strength of workers, men and women, are not abused, that exploitation, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey 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 to 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- 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, it 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 are islands of these linguistic minorities. For instance, in my own province of Tamil Nadu there are islands, in almost every district, of villages where a larg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;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 education 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 Provincial Governments to see that wherever there are congregations of boys and girls having a distinct mother tongue, schools should be provided in that language. I hope, that will be the policy 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. I hope the respondent 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- plicated problem and it cannot be dealt with in d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ldren 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 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 to education are literacy and enrollment levels. The contemporary 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 indicate a range of above 60 per cent literacy in Kerala to below 20 per cent in some states. Nearly 120 million in the functional age group of 15-35 are still illiterate (Bhandari 1981). 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 institutions has more than doubled, while the number. of teachers and students has multiplied many tunes. But despite the fact that 93 per cent of the rural population have access to schnook nearly 30 per cent of 6-14 year old (60 million) do n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nciples is untenable, in view of what we have stated above. Higher education calls heavily on national economic resources. The right to it must necessarily be limited in any given country by its economic and social circumstances. The State's obligation to provide it is, therefore, not absolute and immediate but relative and progressive. It has to take steps to the maximum of its available resources with a view to achieving progressively the full realization of the right of education by all appropriate means' But, with regard to the general obligation to provide education, the 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. fore, by holding education as a fundamental right up to the age of 14 years this Court is not determining the priorities. On the contrary, reminding it 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 Court in the case of San Antonio Inde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 reinforced mid-way by the National Policy on Education, 1986. 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.- Number of Institution (in lakhs) --------------------------------------------------- 1950-51 1990-91 ---------------------------------------------------- Primary Schools 2.10 5.58 (Class I-V) --------------------------------------------------- Upper Primary Schools 0.13 1.46 (Class VI-VIII) ---------------------------------------------------- Total 2.23 7.04 ---------------------------------------------------- Number of Teachers (In lakhs) --------------------------------------------- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns can be endorsed. Thus, it has to be concluded that the right to free education up to the age of 14 years is a fundamental right. 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 cam on any occupation, trade or business.' The question now is: what is the meaning to be attributed to the words 'profession, occupation , trade or business . In P. Ramanatha Aiyar's Law Lexicon Reprint Edition 1987 at page 897 'Occupation means: The principal business of one's life, vocation,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 business in which a man is usually engaged, to the knowledge of his neighbour. According to Black's Law Dictionary Fifth Edition at page 973 'Occupation' means: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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.' 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 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 said, 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 . The meaning of business can be gathered from Law Lexicon Edition 1987 by Ramnath Iyer: Business is that which en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , profession or trade' and a man of business is defined 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 (53 54 Vict. C. 39) was an extended definition intended for the purpose of that Act only. Section 45 of that Act says: The expression 'Business includes every Trade, occupation, or profession . Section 2(b) of the Indian Partnership Act, 1932 also defines 'Business' thus:- Business' includes every trade, occupation and profession. 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 businesses are not professions, ... also supports the view that professions are generally regarded as business. The same learned Judge in an other case Commissioner of Inland Revenue v. Marine Steam Turbine Co. Ltd., (1920) 1.KB. 193 held: The word 'Business' however is also used in another and a very different sense, as meaning an active occupation or profession continuously carr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainly, that is very different from claiming a fundamental tat 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: 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 on recognition by the State. There is absolutely no fundamental right to recognition in any citizen. The right to establishment and run the educational institution with State's recognition arises only on the State permitting 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 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 in educational institution is available under Article 19(1) (g) would lead of the proposition, right to establish a universi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d linguistic minorities so that the majority who can always have their tights by having proper legislation do not pass a legislation prohibiting minorities to establish and administer educational institutions of their choice. If the scope of 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 taken away. (Emphasis Supplied) At page 192 it is observed: 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 Constitution is the conscience of the nation that the minorities, religious as well as linguistic, are not prohibited from establishing and administering educational institutions of their choice for the purpose of giving their children the best general educa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right. As pointed out above, some rights, by the very nature, cannot be qualified to be protected as fundamental rights. Accordingly, it is held that there is no fundamental right under 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. 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 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 Government may now be called out from the judgment in the Intemational Airport Authority's case. These tests are not conclusive or clinching, but they are merely indicative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalysis 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: 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 governmental business had been undertaken by the Society or what was expected to be the 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 obviously 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 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 Vanish Degree College, Shamli v. Lakshmi Narain, [1976] 2 SCC 58 and (b) Deepak Kumar Biswas v. Director of Public Instructions, [1987] 2 SCC 252. In the first of the two cases, the respondent institution was a Degree College managed by a registered co- operative society. A suit was filed against the college by the dismissed principal for reinstatement. It was contended that the Executive Committee of the college which was registered under the Co-operative Societies Act and affiliated to the Agra University (and subsequently to Meerut University) was a statutory body. The importance of this contention lies in the fact that in such as case, reinstatement could be ordered if the dismissal is in violation of statutory obliga- tion. But this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a simpler and more effective procedure'. The Law Commission made their report in March 1976 (Law Commission Report No. 73). It was implemented by Rules of Court (Order 53) in 1977 and given statutory force in 1981 by Section 31 of the Supreme Court Act, 1981. It combined all the former remedies into one proceeding called Judicial Review. Lord Denning explains the scope of this judicial review: At one storke the courts could grant whatever relief was appropriate. Not only certiorari and mandamus, but also declaration and injunction. Even damages. The procedure was much more simple and expeditious. Just a summons instead of a writ. No formal pleadings. The evidence was given by affidavit. As a rule no cross-examination, no discovery, and so forth. But there were important safeguards. In particular, in order to qualify, the applicant had to get the leave of a judge. The statute, is phrased in flexible terms. it gives scope for development. It uses the words 'having regard to Those words are indefinite. The result is that the courts are not bound hand and foot by the previous law. They are to 'have regard to' it. So the previous law as to who are and who are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alogy from them. That apart, High Courts can also issue directions, orders or writs other then the prerogative writs. It enables the High Court to would the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with, that of the English courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in ,a comparatively small country like England with a unitary form of government into a vast country like India functioning under a federal structure. Such a construction a construction defeats the purpose of the article itself. The term authority used in Article 226, the context must receive a liberal meaning unlike the term in Article 12. Artcle 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words any person or authority' used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decided that, in relation to takeovers, there should be a central self-regulatory body which would be supported and sustained by a periphery of statutory powers and penalties wherever non- statutory powers and penalties were insufficient or non-existent or where EEC requirements called for statutory provisions. At page 577 it is held: In fact, given its novelty, the panel fits surprisingly well into the format which this court had in mind in R.v. Criminal Injuries Compensation Board. It is without doubt performing a public duty and an important one. This is clear from the expressed willingness of the Secretary of State for Trade and Industry to limit legislation in the field of takeovers and mergers and to use the panel as the centerpiece of his regulation of that market. The rights of citizens are indirectly affected by its decisions, some, but by no means all of whom, may in a technical sense be said to have assented to this situation, e.g. the members of the Stock Exchange. At least in its determination of whether there has been a breach of the code, it has a duty to act judicially and it asseas that its raison deter is to do equity between one shareholder and another. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Union of India takes the stand that the Central Government does not have the resources to undertake any additional financial responsibility for medical or technical education. Taking the case of medical education, the total plan outlay for the health sector is 3.2 per cent and medical education gets a pro-rata share after apportionment of priorities and allocation of available funds. Priorities include promotions of primary health, hospital services etc. The Government in particular is unable to aid any private educational institution financially at levels higher than at present. Certain statistical details regarding the cost of medical education have been given in the counter affidavit of the Central Government. Paragraphs 5 to 9 of the affidavit may kindly be seen in this connection. It has, therefore, been the policy of the Central Government to involve private and voluntary efforts in the sector of education in conformity with accented norms and goals. The adverse consequences which will follow if private educational institutions have to limit themselves to a fee structure which is charged in Government medical and technical educational institutions have been enumerated in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l will find funds for such programmes as; the universalisation of elementary education; liquidating illiteracy; equality of access to educational opportunities to all sections throughout the country; enhancing the social relevance, quality and functional effectiveness of educational programmes; generating knowledge and developing technologies in scientific fields crucial to self-sustaining economic development and creating a critical consciousness of the values and imperatives of national survival. Therefore, as on today, it would be unrealistic and unwise to discourage private initiative in providing educational facilities, particularly for higher education. The private sector should be involved and indeed encouraged to augment the much needed resources in the field of education, thereby making as much progress as possible in achieving the constitutional goals in this respect. It could be concluded that the private colleges are the felt necessities of time. That does not mean one should tolerate the so-called colleges run in thatched huts with hardly any equipment, with no or improvised laboratories, scarce facility to learn in an unhealthy atmosphere, far from conducive to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aker sections of the society and other groups which deserve special treatment. The norms for admission should be pre-determined, objective and transparent. Before the scheme, a question may arise whether a mandamus could issue for the enforcement of scheme if proposed by the Court. For this, we may look up at Suman Gupta and Ors. v. State of J K and Ors., [1983] 3 SCR 985 at page 991: The Medical Council of India is directed to formulate a proper constitutional basis for determining the selection of candidates for nomination to seats in Medical Colleges outside the State in the light of the observations contained in this judgment. Until a policy is so formulated and concrete criteria are embodied in the procedure selected, the nominations shall be made by selecting candidates strictly on the basis of merit, the candidates nominated being those, in order of merit, immediately below the candidates selected for admission to the Medical Colleges of the home State. It cannot be gainsaid that profiteering is an evil. If a public utility like electricity could be controlled, certainly, the professional colleges also require to be regulated. In Kerala State Electricity Board v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1991] 3 SCC 299 at pages 306-307 it is held: This Court expressly rejected the submission which had found favour with the Kerala High Court that in the absence of a specification by the State Government, the position would be as it was before the 1978 amendment, that is, the Board was to carry on its affairs and adjust the tariffs in such a manner as not to incur a loss and no more. While rejecting the submission, this Court held as under: (SCC pp. 213-14, para 10) We are of the view that the failure of the government to specify the surplus which may be generated by the Board cannot prevent the Board from generating a surplus after meeting the expenses required to be met. Perhaps, the quantum of surplus may not exceed what a prudent public service undertaking may be expected to generate without sacrificing the interests it is expected to serve and without being obsessed by the pure profit motive of the private entrepreneur. The Board may not allow its character as a public utility undertaking to be changed into that of a profit motivated private trading or manufacturing household. Neither the tariffs nor the resulting surplus may reach such heights as to lead to the inevitab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he preceding heads.' In B.K. Mukherjee on the Hindu Law of Religious and Charitable Trust at page 58 para 2.7A it is stated: 2.7A. Education:- The second category on charitable trusts in Lord McNaghten's classification comprises trusts for education. These trusts need not be meant exclusively for the poor. Of course, there must be a public purpose, something tending to the benefit of the community. There must be general public benefit through the advancement or furtherance of some educational purpose. But if this important condition is satisfied, the scope of education would appear to be fairly wide in several respects.' In St. Stephen's College v. University of Delhi, [1992] 1 SCC 558 at page 609-10 it is held: The educational institutions are not business houses. They do not generate wealth. They cannot survive without public funds or private aid. It is said there is also restraint on collection of students fees. With the restraint on collection of fees, the minorities cannot be saddled with the burden of maintaining educational institutions without grant-in-aid. They do not have economic advantage over others. It is not possible to have educational inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. 3 of the company's articles, the company is controlled entirely by a body called a council a body of persons, and, by Art. 64 that body of persons must be the trustees of the trust deed. Therefore, while the company, theoretically, has the power to apply its property and assets for the purpose of making profits and devoting the resulting profit to the distribution of divident among the members, I find that the persons who regulate the operations of the company are not free persons unrestricted in their operations, but are the trustees of the trust deed, and, under the terms of the trust deed, they may use the property of the company only in a particular way and must not make us of the assets of the company for the purpose of a profit-making concern. I find that they are strictly bound by the trusts of the trust deed, and that those trusts are charitable trusts. It seems to me, therefore, that, while nominally the property of the company is held under the provisions of the memorandum and articles of association, in actual fact the property of the company is regulated by the terms of the memorandum and articles of association plus the provisions of the trust deed, and, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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