TaxTMI 
TaxTMI 
TaxTMI 
1993 (2) TMI 326
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.... Bharati Reddy, Ms. Pramila, 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. exc....
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.... binding law. We are of the 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 precisel....
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....der sub- section (1) or permitted under 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 stu....
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....nt can also specify the number of seats 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....
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....ench held, on a consideration of Articles 21, 38, 39(a) and (f), 41 and 45 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." ....
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....y part of India. When the State Government permits a private medical college to be set-up and recognises its curriculum 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 petit....
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....cal Colleges. Chapter-VI (Sections 18 to 33) deals with establishment of educational institutions, their administration 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 autho....
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...., appointment of teaching staff and so on. It further provides that if any local authority or other private educational 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....
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....three years and not exceeding seven years, in addition to fine. Section 15 confers upon the Government the power 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 st....
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....2 and a G.O. was issued on the same day granting permission. A number of Writ Petitions were immediately filed in the 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 engi....
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....mercialisation of education which is not conducive to the maintenance. of educational standards; AND WHEREAS 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 stu....
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....led by the Government nominees. 23.Mahatma Gandhi Mission, Nanded, the appellant in C.A. No. 3573 of 1992 was permitted by 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 t....
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....cational standards; AND WHEREAS it is considered necessary to effectively curb this undesirable practice, in public 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 an....
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....nnexed hereto. The self-financing Medical Colleges in Tamil Nadu are allowed to admit candidates of their choice up to 60% of the approved 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 ....
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....meet the cost of medical education. Unless this minimum fee of ₹ 4 lakh is collected from at least 75 students, it is not possible for the petitioner to run the medical college which is attached to a hospital. While so, the Governor of Tamil 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....
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....omprises the residue." The leaned Judge quoted the dissenting opinion of Field, J. (one of those dissenting opinions which have out-lived the majority pronouncements) in Munn v. Illinois, (1877 (94) U.S. 113/142 attributing a broader meaning to the word "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 libert....
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....o the point of abrogation. Such deprevation would not only denude the fife of its effective content and meaningfulness but it would make life impossible 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 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....
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.... Article 21 creates a right in the accused to be tried speedily and that the said right encompasses an the stages of a criminal case. It was held that the violation of this right of the accused may entail the very quashing 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 indicate....
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....Part III or Part IV, represent moral rights which they have recog- nised as inherent in every human being in his country. The task of protecting and realising these rights is imposed upon all the organs of the State, namely, legislative, 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 di....
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....g regard to the fundamental significance of education to the life of an individual and the nation, and adopting the reasoning and logic adopted in the earlier decisions of this Court referred to hereinbefore, we hold, agreeing with the statement in Bandhua Mukti Morcha, that right to education is implicit in and flows from the right to life guaranteed by Article 21. That the right to education has been treated as one of transcendental importance in the life of an 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: "....
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....then that the second question arises whether the State is taking away that right. The mere, fact that the State is not taking away the right as at present does not mean that right to education is not included within the right to life. The content of the right is not determined by perception of threat. The content of right to life is not to be determined on the basis of existence or absence of threat of deprivation. The effect of holding that right to education is implicit in the right to 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, engineerin....
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....determined. Right to education understood in the context of Articles 45 and 41, means. (a) every child/citizen of this country has a right to free education until he completes the age of fourteen years and (b) after a child/citizen completes 14years, his right to education is circumscribed 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 all....
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....l. Even more remarkable is the fact that this tendency to distortion from the point of view of the planning objectives is more accentuated in the poorest countries, Pakistan, India, Burma and Indonesia, which started out with far fewer children in primary schools and which should therefore have the strongest reasons to carry out the programme of giving primary schooling the highest priority. It is generally the poorest countries that are spending least, even relatively, on primary education, and that are permitting the largest distortions from the planned targets in favour of secondary and tertiary education.' 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' prope....
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..... In this affidavit. the present state of primary and upper primary education is set out. (Primary stage means Classes I to V. Upper primary stage means classes VI to VIII). After setting out the particulars of number of schools and enrollment therein, it is stated in para 3 that 'this increase provided Indian Education System with one of the largest systems in the world, providing accessibility within 1 Km. 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 practicall....
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....ds of Founding Fathers in Articles 45 and 46. Not that we are not aware of the importance and significance of higher education. What may perhaps be required is a proper balancing of the various sectors of education. Right to education after the child/citizen completes the age of 14 years. 48.The right to education further means that a citizen has a right to call upon the State to provide educational facilities to him within the limits of its economic capacity and development. By saying so, we are not transferring Article 41 from part IV to Part III we are merely relying upon 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....
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....art of the right guaranteed to him by Article 19(1)(g) of the Constitution. This right extends even to the establishment of an educational institution with a profit motive i.e., as a business adventure. The said right, no doubt, is subject to such reasonable restrictions as may be placed upon it by a law within the meaning of clause (6) of Article 19. But for the said restrictions, the right is absolute. (b)The vice lies not in the establishment of educational institutions by individuals and private bodies but in unnecessary State control. The law of demand and supply..... what may be called the 'market forces....... must be allowed a free play. Because there are more number of persons seeking admission that the existing institutions can provide that the several 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 wh....
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....and above' the fee charged by the Government in its own colleges, must be described as capitation fee. Saying so amounts to imposing an impossible condition. It is simply not possibly for the private educational institutions to survive if they are compelled to charge only that fee as is charged in Governmental institutions. The cost of educating an engineering or a medical graduate is' very high. All that cost is borne by the State in Governmental colleges but the State does not subsidise the private educational institutions. The private educational institutions have to find their own finances and that can come only from the students. (f)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....
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....lities of the State within the meaning of Article 12 of the Constitution. The concept of 'State action' cannot be extended to these colleges so as to subject them to the discipline of Part III. It may be a different matter if the institution is in receipt of any aid, partially and wholly, from the State. In such a situation, the command of Article 29(2) comes into play but even that does not oblige the institution to admit the students exclusively on the basis of merit but only not to 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 int....
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....uch condition and any departure therefrom renders the recognition/affiliation liable to be withdrawn. (e)Even if the Government or the University does not expressly impose such a condition, such condition is implicit by virtue of the fact that in such a situation, the activity of the private educational institution is liable to be termed as 'State action'. The fact that these institutions perform an important public function coupled with the fact that their activity is closely inter-twined with governmental activity, characterises their action as 'State action'. At the minimum, the requirement would be to act fairly in the matter of admission of students and probably in the matter of recruitment' and treatment of its employees as well. These institutions are further bound not to charge any fee or amount over and above what is charged in 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 c....
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....ies in which persons obtaining such qualification are likely to be engaged on the basis of such qualification, (c) the minimum standards which a person possessing such qualification should be able to maintain in his work relating to such activities and the consequent need for ensuring, so far as may be, that no candidate secures admission to such course of study by reason of economic power and thereby prevents a more meritorious candidate from securing admission to such course of study-, and (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 di....
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....sity as an institution in which a person may undergo training, if any, required by his course of study before the award of any medical qualification to him." Section 11 declares that the medical qualifications granted by any University or medical institution in India which are included in the first schedule to the Act shall be recognised medical qualifications for the purposes of the Act. It also provides the 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....
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.... by the learned counsel appearing for the Council that the Council has evolved a proforma of undertaking which should be executed by the person-in-charge of any institution proposed to be established stating inter alia that such institution will not only observe the several orders and instructions issued by the Council but it shall not charge any capitation fee from the students/guardians of the students in any form. The proforma further stipulates that in the event of non-com- 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 ....
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....r from the date of the commencement of the Ordinance, seek permission of the Central Government in accordance with Section 10-A. GROUND REALITY: 60.Notwithstanding the fact that education is the second highest sector of budgeted expenditure after the Defence, the outlay on education is woefully inadequate to the needs of the people. Whereas many other countries spend six to eight per cent 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....
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....vate educational institutions it does not create an agency to fulfill its obligations under the Constitution and there is no scope to import the concept of agency in such a situation. (c)The principles laid down in Mohini Jain's case do require reconsideration. (d)It would be unrealistic and unwise to discourage private initiative in providing educational facilities particularly for higher education. The private sector should be involved and indeed encouraged to 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....
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....ay permit it to avail of the services of a Government hospital for the purpose of the college free of charge. This would also be a form of aid and the conditions aforesaid have to be imposed may be with some relaxation in the matter of fees chargeable and observed. The Government (Central and State) and all other authorities granting aid shall impose such conditions forthwith, if not already imposed. These conditions shall apply to existing as well as proposed private educational institutions. 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 ed....
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.... the general public, reasonable restrictions on the exercise of the right conferred by the said clause and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to or prevents the State from making any law relating to: (i)the professional or technical qualifications necessary for practising any profession or carrying on any 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 se....
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....kataramiah and Ranganath Misra, JJ. At page 609, while dealing with Section 33 of the Gujarat Secondary Education Act empowering the Government to take over an educational institution in certain situations for a period not exceeding five years, the teamed Judges observed that "the said provision is introduced in the interest of the general public and does not in any way affect prejudically the fundamental right of 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 i....
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....s essential for a meaningful exercise of the right to establish and administer educational institutions. Recognition may be granted either by the Government or any other authority or body empowered to accord recognition. Similarly, affiliation may be granted either by the University or any other academic or other body empowered to grant affiliation to other educational institutions. In other words, it is opento a person to establish an 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 ....
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....gher courses of study. The private educational institutions merely supplement the effort of the State in educating the people, as explained above. It is not an independent activity. It is an activity supplemental to the principal activity carried on by the State. No private education institution can survive or subsist without recognition and/or affiliation. The bodies which grant recognition and/or affiliation are the authorities of the 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 opini....
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....volved herewith is in the nature of guidelines which the appropriate Governments and recognising and affiliating authorities shall impose and implement in addition to such other conditions and stipulations as they may think appropriate as conditions for grant of permission, grant of recognition or grant of affiliation, as the case may be. We are confining the scheme for the present only to 'professional colleges.' The expression 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 p....
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....1971] Suppl. S.C.R. 879 which provided that schools which are not registered under the Societies Registration Act, shall not be eligible for grant. Grant of recognition and affiliation is no less significance). (2)Atleast, 50% of the seats in every professional college shall be filled by the nominees of the Government or University, as the case may be, hereinafter referred to as "free seats". These students shall be selected on the basis of merit determined on the basis of a common entrance 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....
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....rofessional colleges. (5)Each professional college shall intimate the competent authority, the State Government and the concerned University in advance the fees chargeable for the entire course commencing that academic year. The total fees shall be divided into the number of years/semesters of study in that course. In the first instance, fees only for the first year/semester shall be collected. The payment students will be, however, required to furnish either cash security or bank 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 s....
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....entral Government, U.G.C., I.M.C. or A.I.C.T.E., as the case may be. (d)We must hasten to add that what we have said in this clause is merely a reiteration of the duty nay, obligation placed up on the Governments of Andhra Pradesh, Maharashtra, Karnataka and Tamil Nadu by their respective legislatures to wit, Section 7 of Andhra Pradesh Act 5 of 1983, Section 4 of Maharashtra Act 6 of 1988, Section 5 of Karnataka Act of 1984 and Section 4 of Tamil Nadu Act 57 of 1992. Other States too may have to have similar provisions, carrying statutory force. (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 refun....
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....demic year 1993-94. We are aware that until the commencement of the current academic year, the Andhra Pradesh was following a somewhat different pattern in the matter of filling the seats in private unaided engineering colleges. Though all the available seats were being filled by the allottees of the Convenor (State) and the managements were not allowed to admit any student on their own a uniform fee was collected from all the students. The concepts of 'free seats' and 'payment seats' were therefore not relevant in such a situation all were payment seats only. We cannot say that such a system is constitutionally not permissible. But our idea in devising this 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 h....
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.... students to the extend of half the number of seats from among those who have qualified in the common entrace test or the qualifying examination, as the case may be. This statement is accompanied by two significant features viz., (1) admission of such students could be irrespective of the ranking assigned to them to the common entrance test or other qualifying examination, as the case may be; and (2) it is made clear that nothing contained in Section 5 shall apply to such admissions. The Section is, thus, an exception to Section 3, 5. Section 3, it may be remembered, provides that admissions have to be made, to all categories, strictly in accordance with merit. The section, read as a whole, leads to the following consequences: (a)It is open to the private educational institutions to charge as much amount as they can for admission. It will be a matter of bargain between the institution and the student seeking admission. (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 ca....
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....sly that such admissions shall be made on the basis of merit, but that, according to us, is implicit. If the notifications or order issued thereunder provide otherwise, either expressly or by implication, they would be equally bad for the reason given above. 75.Once Section 3-A is struck down, the question arises as to what should happen to the students who were admitted by the Private Engineering Colleges in this State, at their own discretion, to the extent of the 50% of the available seats. The High Court has invalidated these admissions but they are continuing now by virtue of the orders of stay granted by this 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%....
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....llected during this year shall be remitted into the Government account within six weeks from today, in default whereof the recognition and affiliation given to these colleges shall stand withdrawn. In other words whichever college fails to comply with the above direction it will stand disaffiliated on the expiry of six weeks from today and the recognition granted to it, if any, by any appropriate authority shall also stand withdrawn. 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 rea....
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....eral public. 4. Section 3-A of the Andhra Pradesh Educational Institutions (Regulation of Admission And Prohibition of Capitation Fee) Act, 1983 is violative of the equality Clause enshrined in Article 14 and is accordingly declared void. The declaration of the Andhra Pradesh High Court in this behalf is affirmed. 5. Writ Petition No. 855 of 1992 is dismissed. Civil Appeal No. 3573 of 1992 is allowed 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....
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.... not in the Council Chambers where insipid speeches are spun out in the name of debate, not even in factories where are manufactured novel instruments to strangle life, but in educational institutions which are the seed-beds of culture, where children in whose hands quiver the destinies of the future, are trained From their ranks will come out when they grow up, statesmen and soldiers, patriots and philosophers, who will determine the progress of the land. The importance of education 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 profess....
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....it has been found necessary from time to time to define a new the exact nature and the extent of such protection. Political social and economic changes entail the recognition of new rights and the law in its eternal youth grows to meet the demands of society. The right to life and liberty inhere in every man. There is no need to provide for the same in a positive manner. While dealing with the scope of Article 21 it was observed in Maneka Gandhi v. Union of India, AIR 1978 597 @ 620-21 that: "It is obvious that Art. 21, though couched in negative 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. ....
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....e been overruled."(Emphasis supplied) Therefore, it is not correct to state that because the article is couched in a negative language, positive rights to life and liberty are not conferred as argued by Mr. Tarkunde, learned counsel. This Court in Choarak Singh v. State of U.P., 119641 1 SCR 332, (345, 347 and 349) interpreted the word "liberty" on the lines of the meaning accorded to liberty in the 5th and 14th amendments 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....
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....61 9. The Right against custodial violence Sheela Bhasre v. State of Maharashtra, [1983] 2 SCC 96 10. The Right against public hanging A.G. of India v. Lachmadevi AIR 1986 SC 467 11. Doctor's Assistance Parantananda Katra v. UOI, [1989] 4 SCC 286 12. Shelter Santistar Builder v. N.KI. Totame, [1990] 1 SCC 520 If really Article 21, which is the heart of fudamental rights has received expanded meaning from time to time there is no justification as to why it cannot be interpreted in the light of Article 45 wherein the State is obligated to provide education up to 14 years of age, within the prescribed time limit. 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 cl....
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....ihood . Upon that assumption, the question which we have to consider is whether the right to fife includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of 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 ....
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.... content of the right to life. The State may not by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21."(Emphasis supplied) If thus, personal liberty and life have come to be given expanded meaning, the question to be addressed is, whether life which means to live with dignity, will take within it education as well? To put it more 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....
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....is enlightenment. It is the one that lends dignity to a man as was rightly observed by Gajendragarkear, J. (as he then was) in University of Delhi v. Ram Nath, [1964] 2 SCR 703 at 710: "Education seeks to build up the personality of the pupil by assisting his physical, intellectual, moral and emotional development." If life is so interpreted as to bring within it right to education, it has to be interpreated in the light of directive principles. This Court has uniformly taken the view 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 ....
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....con- cerned where there is no apparent inconsistency between the directive principles contained in Part 111, which in fact supplement each other, there is no difficulty in putting a harmonious construction, which advances the object of the Constitution. Once this basic fact is kept in mind, the interpretation of Articles 14 and 16 and their scope and ambit become as clear as day'. In the case of The State of Bombay v. R.M.D. Chamarbaugwala this Court while stressing the importance of directive 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....
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.... qualifying it." Such a conclusion may not be open to criticism. So interpreted it advances social justice. In Vol. VII at pages 909 and 910 of the Constitutent Debates (1948-49) it is stated: "The Honourable Shri K. Santhanam : Sir, you will remeber that throughout Europe, after the First World' War, all that the minorities wanted was the right to have their own schools, and to conserve their own cultures which the Fascist and the Nazis refused them. In fact, they did not want even the State schools. They did not want State aid, or State assistance. They simply wanted that they should be allowed to pursue their own customs and to follow their own cultures and to establish and conduct their own schools. Therefore I do not think it is right on the part of any minority 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. An....
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....ht to have primary education which the people of this country do not have today. In the directives we have provided that in fifteen years' time there should be universal primary education. But no one knows whether the financial and other conditions in the country would permit of universal primary education to be established even then. Today no one in India can ask for primary education as a right as only ten per cent of the population get primary education. Therefore, it is not possible to accept Mr. Lari's amendment, because that would lead to all kinds of difficulties. If it were passed, then anyone can go to the Supreme Court and say that his child must get 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 ....
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....tion of education for weaker sections. Most states have enacted legislation for compulsory education. At the end of the Sixth Five Year Plan (1985) primary education for ages 6-11 is free in all states, and for age group 11-14 it is free in all except Orissa, Uttar Pradesh and West Bengal. In these States, girls and members of Scheduled Castes and Tribes get free education, and incentives such as mid-day meals, free books and uniforms, are provided. At the secondary stage several states have free education for all children and those which do not make free education available to all do so for girls, Scheduled Castes and Tribes. Thus free education in all states is provided at the 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 ....
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....atus of this Article is a useful reminder of the problems inherent in any attempt to create a 'social' right of this kind for individuals against their states." No doubt, the above extract from Mohini Jain's case (supra) states "education at all levels", but we 'consider the law has been somewhat broadly stated and, therefore, must be confined to what is envisaged under Article 45. The criticism by Mr. Ashok Desai, learned counsel that Article 37 has not been adverted to and the reliance on directive principles 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 ....
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....it on behalf of Union of India filed by Mr. H.C. Baveja, Assistant Education Advisor in the Ministry of Human Resources Development, Government of India, Department of Education, New Delhi, puts the position thus: STATUS OF ELEMENTRY EDUCATION IN INDIA 1. Provision of free and compulsory education to all children until they complete the age of 14 years is a Directive Principle of the Constitution. Recognising the need for literate population and provision of elementary education as a crucial input for nation building, the policy of the Government has been to provide all children the free and compulsory education at least up to elementary level (primary and upper primary level). The 6th Five Year Plan document made a serious reference to the desirability of a time bound plan to achieve universal enrolment. The 7th Plan conveyed a sense of urgency about the need to achieve this objective. This was 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) --------------------------....
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....al expenditure is that 96% of expenditure on elementary education goes in meeting the salaries of teaching and non-teaching staff. COMPULSORY EDUCATION 5.14 States and 4 Union Territories have enacted legislation to make education compulsory but the socioeconomic compulsions that keep the children away from schools have restrained them from prescribing the rules and regulations whereby those provisions 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....
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....ons, we must negative this submission of Mr. Ramarao relating to the interpretation of the words "business, profession, vocation or occupation' in section 5(a) of the Act." In P.K Menon v. Income-tax Commissioner, [1959] Supp. 1 SCR 133 at p. 137 this Court observed as follows: "We find no difficulty in thinking that teaching is a vocation if not a profession. It is plainly so and it is not necessary to discuss the various meanings of the word "vocation' for the purpose or to cite authorities to support this view. Nor do we find any reason why, if teaching is a vocation, teaching of Vedanta is not. It is just as much 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....
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....ally with the object of making profit. To regard an activity as business there must be a course of dealings either actually continued or contemplated to be continued with a profit motive, and no for sport of pleasure." In Barendra Prasad Ray v. The Income-tax Officer, AIR'1981 SC 1047: [1981] 3 SCR 387 at 400 B and H and 401 A and B it is observed: "The expression 'business does not necessarily mean trade or manufacture only. It is being: used as including within its scope profession, vocations and calling from a fairly long time. The Shorter Oxford English Dictionary defines 'Business" as stated occupation, 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 ....
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....nts of education are fufiled. Education is, therefore, an industry nothing can stand in the way of that conclusion." This ruling was relied on in Miss Sundarambai v. Government of Goa, [1988] Suppl. 1 SCR 604 at page 608B. It was held: "Thus it is seen that even though an educational institution has to be treated as an industry in view of the decision in the Bangalore Water Supply and Sewerage Board v. R. Rajappa (supra) the question whether teachers in an educational institution can be considered as workmen still remains to be decided.' It requires to be carefully noted that while considering as to what would constitute an industry under the Industrial Disputes Act, these observations came to be made. Certainly, 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 depende....
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....y was bound to recognise those degrees." It there is no fundamental right to establish a university a fortiori a fundamental right to establish an educational institution is not available. By implication also a fundamental right of the nature and character conferred under Article 30 cannot be read into Article 19(1) (g). The conferment of such a right on the minorities in a positive way under Article 30 negatise the assumption of a fundamental right in this behalf in every citizen of the country. In Ahmedabad St. Xaviers College Society v. State of Gujarat, [1975] 1 SCR 173 at page 191 it is observed: "The tight to establish and administer educational institutions of their choice has been conferred on religious and 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 teaching....
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....and result in true, genuine equality, an equality not merely in theory but also in fact. The majority in a system of adult franchise hardly needs any protection. It can look after itself and protect its interests. Any measure wanted by the majority can without much difficulty be brought on the statute book because the majority can get that done by giving such a mandate to the elected representatives. It is only the minorities who need protection, and article 30, besides some other articles, is intended to afford and guarantee that protection. (Emphasis supplied) The argument that every activity or occupation by the mere fact of its not being abnoxious or harmful to society-, cannot by itself be entitled to protection as fundamental right. As pointed out above, some rights, by 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....
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....ation being an instrumentality or agency of Government." If on a consideration of these relevant factors it is found that the corporation is an instrumentality or agency of government, it would, as pointed out in the Inter alia Airport Authority's case, be an 'authority' and, therefore, 'State' within the meaning of the expression in Article 12. We find that the same view has been taken by Chinnappa Reddy, J. in a subsequent decision of this Court in the UP. Warehousing Corporation v. Vijay Narain [1980] 3 SCC 459 and the observations made by the learned Judge in that case strongly reinforced the view,we are taking particularly in the matrix of our constitutional system." Ranganath Mishra, J. (as he then was), speaking for the Court, after a succinct analysis of the entire case law on the subject concludes in Tekraj Vasandi v. Union of India [1988] 1 SCC 236 at page 257 as under: "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 t....
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....his, an important question arises: what is the nature of functions discharged by these institutions ? they discharge a public duty. If a student desires to acquire a degree, for example, in medicine, he will have to route through a medical college. These medical colleges are the instruments to attain the qualification. If, therefore, what is discharged by the educational institution, is a public duty that requires, duty and act fairly. In such a case, it will be subject to Article 14. Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvama Jayanti Mahotsav Samarak Trust v. VR. Rudani, [1989] 2 SCC 691 is an interesting case where a writ of mandamus was issued to a private college. In paragraph 12 at page 697 it was held: "The essense of the attack on the maintainability of the writ petition under Article 226 may now be examined. It is argued that the management of the college being a trust registered under the Bomaby Public Trust Act is not amenable to the writ jurisdiction of the High Court. The contention in other words, is that the trust is a private institution against which no writ of mandamus can be issued. In support of the contention, the counsel relied upon two decisio....
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....s of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right-duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party. The law relating to mandamus has made the most spectacular advance. It may be recalled that the remedy by prerogative writs in England started with very limited scope and suffered from many procedural disadvantages. To overcome the difficulties, Lord Gardiner (the Lord Chancellor) in pursuance of Section 3(1) (e) of the Law Commission Act, 1965, requested the Law Commission 'to review the existing remedies for the judicial control of administrative acts and omissions with a view to evolving 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 "judi....
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....tiorari or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose. The scope of this article has been explained by Subba Rao, J., In Dwarkanath v. ITO, [1965] 3 SCR 536: This article is couched in comprehensive phraseology and it ex-facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy 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 ....
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....n the relative merits of self-regulation and governmental or statutory regulation, I am content to assume for the purposes of this appeal that seff-regulation is preferable in the public interest. But that said, what is to happen if the panel goes off the rails ? Suppose, perish the thought, that it were to use its powers 'in a way in which was manifestly unfair. What then ? Counsel for the panel submits that the panel would lose the support of public opinion in the financial markets and would be unable to continue to operate. Further or alternatively, Parliament could and would intervene. Maybe but how long would that take and who in the meantime could or would come. to the assistance of those who were being oppressed by such conduct"? At page 574 it is held: "The picture which emerges is clear. As an act of government it was 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: ....
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....an order for mandamus, prohibition or certiorari could be granted. It Merely requires that the court should have regard to the nature of the matter 'in respect of which such relief may be granted. However, although applications for judicial review are not confined to those cases where relief could be granted by way of prerogative order, I regard the wording of Ord 53, r 1 (2) and sub- s (2) of s 31 of the Supreme Court Act 1981 as making it clear that the application for judicial review is confined to reviewing ac- titivities of a public nature as opposed to those of a purely private or domestic character. The disciplinary appeal procedure set up by the BBC depends purely on the contract of employment between the applicant and the BBC, and therefore it is a procedure of a purely private or domestic character." PRIVATE COLLEGES AND THEIR ROLE. The 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 apport....
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....e establishment of institutions set up to commercialise education." "11.2 Resources, to the extent possible, will be raised by mobilising donations, asking the beneficiary communities to maintain school buildings and supplies of some consumables, raising fees at the higher levels of education and effecting some savings by the efficient use of facilities. Institutions involved with research and the development of technical and scientific manpower should also mobilize some funds by levying a cress or charge on the user agencies, including Government departments, and entrepreneurs. All these measures will be taken not only to reduce the burden on State resources but also for creating a greater sense of responsibility within the educational system. However, such measures will contribute only marginally to the total funding. The Government and the community in general 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 knowledg....
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....nd to the Medical Council of India not to grant them recognition. (48th Conference Dec. 29, 31, 1972 at Ahmedabad)" However, a word of caution requires to be uttered. Not all the private instutions belong to this category. There are institutions which have attained great reputation by devotion and by nurturing high educational standards. They surpass the colleges run by the Government in many respects. They require encouragement. From this point of view regulatory controls have to be continued and strengthened. The commercialisation of education, the racketeering must be prevented. The State should strive its utmost in this direction. Regulatory measures must so ensure that private educational institutions maintain minimum standards and facilities. Admission within all groups and categories should be based only on merit. There may be reservation of seats in favour of the weaker sections of the society and 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....
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.... Supp. SCC 397 at 399 it is held: The notion that the 'cost plus' basis can be the only criterion for fixation of prices in the case of public enterprises stems basically from the concept that such enterprises should function either on a no profit no loss basis or on a minimum profit basis. This is not a correct approach. In the case of vital commodities or services, while private concerns must be allowed a minimal return on capital invested, public undertakings or utilities may even have to run at losses, if need be and even a minimal return may not be assured. In the case of less vital, but still basic commodities, they may be required to cater to needs with a minimum profit margin for themselves. But given a favourable area of operation, "commercial profits' need not be either anathema or forbidden fruit even to public sector enterprises." In Hindustan Zinc Ltd v. A.P.S.E.B., [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 B....
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....more extended sense, the ordinary and popular acceptation of the word is 'refief of poverty' and "a charitable act or purpose" consists in refieving poverty or want. (bid per Lord President (Ingfis). In a still more extended sense and in its popular and ordinary acceptation 'charity' comprehends all benefits, whether religious, intellectual or physical bestowed upon persons who, by reason of their poverty, are unable to obtain such benefits for themselves without assistance. (Per Lord Watsom in Commissioners for special purposes of Income-tax v. Pemsel (1891) A.C. 531 (557)." At page 49 it is stated: "Charity in its legal sense as understood in the English Law comprises four principal divisions:- (1) trusts for the relief of poverty-, (2) trusts for the advancement of education; (3) trusts for advancement of religion; (4) and trusts for other purposes beneficial to the community not falling under any of the 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 ....
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....eneficial to the community not falling under any of the preceding heads. The trusts last referred to are not the less charitable in the eye of the law because incidentally they benefit the rich as well as the poor, as indeed every charity that deserves the name must do, either directly or indirectly." The next case to which reference can be made is The King v. The Commissioner for Special Purposes of the Income-tax, 5 Tax cases 408. The question arose whether the University College of North Wales could be held as established for charitable purposes. Fletcher Moulton, LJ. relying on Pemsel's case (supra) held that a trust for advancement of eduration was charitable. In The Abbey Malvem Wells, Ltd v. Minister of Town and Country Planning, 1951 (2) All England Law Reports 154 at pages 160-161 it was held: "In the present case, it seems to me that one is entitled, and indeed, bound, to look at the constitutional of the company to see who, in fact, is in control. I find that, by Art. 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 dee....