Introduction

Constitutional challenge querying whether the “right to life” in Article 21 of the

Constitution of India guarantees a fundamental right to education to citizens of
India; role of economic resources in limiting right to education; interplay between
Directive Principles and State Policy in the Constitution and Fundamental Rights;
whether the right to education includes adult professional education

In 1993 the Supreme Court narrowed the ambit of the fundamental right to
education as propounded in the Mohini Jain case in the case of J P Unnikrishnan
vs. State of Andhra Pradesh, 1993 SCC (1) 645. The right to education which is
implicit in the right to life and personal liberty guaranteed by Article 21 must be
construed in the light of the directive principles in Part IV of the Constitution. So
far as the right to education is concerned, there are several articles in Part IV which
expressly speak of it.

Article 41 says that the "State shall, within the limits of its economic capacity and
development, make effective provision for securing the right to work, to education
and to public assistance in cases of unemployment, old age, sickens and
disablement, and in other cases of undeserved want".

Article 45 says that "the State shall endeavor to provide, within a period of ten
years from the commencement of this constitution, for free and compulsory
education for all children until they complete the age of fourteen years".

Article 46 commands that "the State shall promote with special care the
educational and economic interests of the weaker sections of the people, and, in
particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect
them from social injustice and all forms of exploitation.

The three Articles 45, 46 and 41 are designed to achieve the said goal among
others. It is in the light of these Articles that the content and parameters of the right
to education have to be determined. Right to education, understood in the context
of Articles 45 and 41, meant: (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 14 years, 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. (para 171) In 2002, the 86th amendment to the
Constitution introduced Article 21-A making the right to education a fundamental
right. For the first time in independent India’s history a fundamental right had been
added to the Constitution. Unlike other fundamental rights the right to education
required an enabling legislation to become effective. The RTE Act is this enabling
legislation. The RTE Act came into force on April 1, 2010.
Facts
The case involved a challenge by certain private professional educational facilities
to the constitutionality of state laws regulating capitation fees charged by such
institutions.  

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
conveyor 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 particular fees which were relatively higher than the fees charged in the
Government Engineering Colleges. Nothing more But when Section 3-A of
Andhra Pradesh Educational Act was introduced in the 1983 Act on 15.4.1992,
these private engineering colleges took the stand that they are entitled to admit
students to the extent of 50 per cent of the seats according to their choice,
irrespective of merit, so long as they have qualified in the entrance test. It is
obvious that such a stand meant collection of capitation fee as much as they could.
There was an uproar among the student and teaching community against such
admissions. Even the Government could not ignore the said protest and intimated
the private engineering colleges on 26.7.1992 not to make any admissions till the
Rules are made under Section 3-A. The engineering colleges, however, took the
stand that they have already made the admissions according to their choice to the
extent of 50 per cent. Indeed all this was facilitated by the fact that convenor
allotted students to these engineering colleges only to the extent of 50 per cent of
their respective capacity instead of 100% as usual thereby sending an explicit
signal that the colleges were free to fill up the rest on their own. Be that as it may,
these admissions led to the filing of a batch of Writ petitions in the Andhra Pradesh
High Court.

 It declared Section 3-A up-Constitutional. It also declared that the admissions

made by the private Engineering Colleges to the extent of 50 per cent at their own
choice were illegal. The Court further declared that the grant of permission to 12
Medical and 8 Dental Colleges was equally invalid. It is against the said decision
that the State of Andhra Pradesh, certain educational institutions and the students
admitted at the choice of the managements have come forward with a number of
Special leave petitions. Leave is granted in all the Special leave petitions preferred
against the Full Bench decision of the Andhra Pradesh High Court dated 18th
September, 1992 in Writ Petition No. 8248 of 1992 and batch. Besides the appeals,
there are a few writ petition- from this State questioning the correctness of the
dicta in Mohini Jain.

ISSUES:-
1) Article 21-Right to Education- Whether implicit under the Article- Whether
flows from right to life and personal liberty Extent and content of the right.

2) Whether a right could be recognized as a fundamental right even though not

expressly mentioned.

3) Private unaided recognized affiliated educational institutions running

professional courses like engineering and medical course-Whether entitled to
charge a fee higher than that charged by Government institutions.

4) Whether an instrumentality of State-"ether public duty performed by it viz,

imparting of education would make it amenable to Part III, such as Articles 14
and15.
Articles 29 and 30-Rights conferred on minorities in a positive way-Whether
negate the assumption of such rights by other citizens.

5) Whether a citizen has a Fundamental Right to education for a medical,

engineering or other professional degree. The question whether the right to primary
education, as mentioned in Article 45 of the Constitution of India, is a
Fundamental Right under Article 21.

It was held:-
1) Every child/citizen has a right to free education up to the age of 14 years and
thereafter it is subject to limits of economic capacity and development of the
State-State obliged to follow directions contained in Article 45-Article 21 to be
construed in the light of Articles 41, 45 and 46.

2) Private unaided recognized affiliated educational institutions running

professional courses like engineering and medical course were entitled to charge a
higher fee but such a fee cannot exceed the ceding fixed in this regard-However,
commercialization of education not Permissible fee.

Arguments

Private educational institutions argued that if the principles in Mohini Jain were

followed, all private educational institutions would have to close down. Private
institutions, it was argued, had a right under Article 19(1)(g) that entitled them to
complete autonomy. Moreover, market forces should be allowed to determine fees
because only in allowing profits would private individuals be willing to set up
institutions.
The Medical Council of India and the All India Council for Technical Education
opposed these arguments on the grounds that the commercialisation of education
was prohibited.
The Court rejected the argument grounded in Article 19(1)(g). This finding arose
from the Court’s understanding of the terms ‘business’, ‘trade’, ‘profession’ and
‘occupation’ in that constitutional provision. A profit motive, the Court said, was
essential to fall within these categories. Establishing a college would fall within the
ambit of the term ‘occupation’ only if the institution did not seek affiliation from
the state

JUDGEMENTS
In Unni Krishnan J.P. v. State of Andhra Pradesh, (1993) 1 SCC 645, a five-judge
bench was constituted for the specific purpose of reconsidering Mohini Jain.

The Court held that the right to education which is implicit in the right to life and
personal liberty guaranteed by Article 21 must be construed in the light of the
directive principles in Part IV of the Constitution. So far as the right to education is
concerned, there are several articles in Part IV which expressly speak of it. The
three Articles 45, 46 and 41 are designed to achieve the said goal among others. It
is in the light of these Articles that the content and parameters of the right to
education have to be determined. Right to education, understood in the context of
Articles 45 and 41, meant: (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 14 years, 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. (paragraph 171) In 2002, the 86th amendment to the Constitution
introduced Article 21-A making the right to education a fundamental right. For the
first time in independent India’s history a fundamental right had been added to the
Constitution. Unlike other fundamental rights the right to education required an
enabling legislation to become effective. The RTE Act is this enabling legislation.
The RTE Act came into force on April 1, 2010.

The Supreme Court held that the right to basic education is implied by the
fundamental right to life (Article 21) when read in conjunction with the directive
principle on education (Article 41). The Court held that the parameters of the right
must be understood in the context of the Directive Principles of State Policy,
including Article 45 which provides that the state is to endeavor to provide, within
a period of ten years from the commencement of the Constitution, for free and
compulsory education for all children under the age of 14.

The Court ruled that there is no fundamental right to education for a professional
degree that flows from Article 21.  It held, however, that the passage of 44 years
since the enactment of the Constitution had effectively converted the non-
justifiable right to education of children under 14 into one enforceable under the
law.  After reaching the age of fourteen, their right to education is subject to the
limits of economic capacity and development of the state (as per Article 41). 
Quoting Article 13 of the International Covenant on Economic, Social and Cultural
Rights, the Court stated that the state's obligation to provide higher education
requires it 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.

It was contended by learned counsel appearing for some of the parties before us

that Article 37 in Part IV of the Constitution expressly states that the provisions
contained in Part IV shall not be enforceable by any court and that, therefore,
assuming the right under Article 45 to be included within the ambit of Article 21, it
would still not be enforceable. Emphasis was also laid upon the language used
in Article 45 which requires the State to "endeavor to provide' for the free and
compulsory education of children.

Despite the fact that this judgment rejected the plea of private institutions, the
decision assumes importance because, for the first time, the Court emphasized that
it would be unrealistic and unwise to discourage private initiative in providing
educational facilities, particularly in higher education. The Court held that
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.”

The Court appeared to be in a dilemma over the extent of interference by the

government. The Court stated that (a) regulatory controls have to be continued and
strengthened in order to lay down minimum standards; (b) the commercialisation
of education and racketeering must be prevented – there can be an adequate fee to
ensure that institutions are self-financing, but there can be no capitation fee; (c)
admission within all groups and categories should be based only on merit; and (d)
reservation of seats in favor of the weaker sections of society and other groups
which deserve special treatment is permitted. In order to balance interests, the
Court framed a scheme aimed at eliminating management discretion. The salient
features of the scheme were:
a. All private colleges must be affiliated to and award degrees granted by
recognized universities.
b. The establishment of a private college could only be through a society or a trust
to ensure that profit-making is not a relevant consideration.
c.  The reservation of 50 per cent seats for government in all private professional
colleges would be referred to as ‘free seats’ and admissions to these seats would be
based on a common entrance test.  The remaining seats would be filled by the
management on payment of the prescribed fees, on the basis of inter se merit, on
the same basis as admissions to the free seats.
d. Prior intimation of the fees to be charged by the college and a stipulation that the
maximum fees chargeable would be subject to a ceiling prescribed by a fee fixation
committee constituted by state governments.
In its quest to balance interests and prevent the commercialisation of education, the
Court imposed stringent conditions on private institutions, especially in relation to
the fees chargeable. It made fees subject to the decisions of an ad hoc fee fixation
committee with absolute authority over these institutions. Moreover, 50 per cent of
the seats were to be reserved for “government students”. This seriously affected the
autonomy of private colleges to admit students of their choice. Fees obtained from
the 50 per cent “payment seats” were often not sufficient to recover the cost of
running the institution. In many cases, the free seats went to students from affluent
families because they had better access to preparatory training for the common
entrance tests.

Significance of the Case: 

The Court in Unni Krishnan expressed its disagreement with the finding in the
earlier case of Mohini Jain v State of Karnataka 1992 AIR 1858 that the right to
education at all levels is guaranteed by the Constitution. In the subsequent case
of M.C. Mehta v State of Tamil Nadu & Ors  (1996) 6 SCC 756; AIR 1997 SC
699, the Supreme Court stated that Article 45 had acquired the status of a
fundamental right following the Constitutional Bench's decision in Unni
Krishnan.  

In addition, the Court said that, in order to treat a right as fundamental right, it is
not necessary that it should be expressly stated as one in Part III of the
Constitution: “the provisions of Part III and Part IV are supplementary and
complementary to each other”. The Court rejected that the rights reflected in the
provisions of Part III are superior to the moral claims and aspirations reflected in
the provisions of Part  IV.