Significance right to education and how it constitutionally guaranteed and explain the supreme court

perspectives of preference of residence of a state relating to admission to educational institution

The Right to Education in India The Indian constitution has provisions to ensure that the state provides education
to all its citizens. The Indian constitution in its original enactment defined education as state subject. Under Article
42 of the constitution, an amendment was added in 1976 and education became a concurrent list subject which
enables the central government to legislate it in the manner suited to it. Besides India is signatory to a number of
international covenants i.e. Jomtien declaration, UNCRC, MDG goals, Dakar declaration SAARC SDG charter for
children which is binding on its commitment for making education a reality for all children

Constitution on Education

The basic structure gives every citizen social justice and, education is a social aspect, which needs to be addressed
by policymakers if the population is lacking behind literacy level than there will be no equality of opportunity to be
a real provision. And if the person is not given the chance to make his/her life, free from misery and problems than
one can not be attained social transformation, which is the cornerstone of education. 

 The Right to education is now become the fundamental right and included in part III of the Indian constitution
under article 21-A. This was done in the case of Mohini jain vs. state of karnataka [1]. Supreme court division bench
decide this case. Justice comprising of Kuldip Singh and R.M Sahai held that:

“Right to education is the essence of the right to life and directly flow and interlinked with it, and life living with
dignity can only be assured when there is a significant role of education”.

Later, the validity of this judgment re-examined in by five judges bench in J.P. Unnikrishnan v. State of Andhra
Pradesh [2] and held that:

“Right to education means citizen has the right to call up the state to provide the facilities of education to them
in according to the financial capacity”.

The above-stated cases enumerate the right to education to be in part III being as a fundamental right. There are
many more cases which seeks that right to education is a fundamental right, in the case of Maharashtra State
Board of Secondary and Higher Education vs. K.S. Gandhi [3], the supreme court referred above judgment in
relation to case Bandhua Mukti Morcha, etc v. Union of India [4].

 It would be therefore the necessary duty of the State to ensure the facilities and opportunity to children
enjoined under article 39(e), 39 (f) of the Constitution and to prevent exploitation of their childhood
due to extreme poverty and notion.

Provisions given in the Constitution promoting and strengthening the educational framework in India 

 Article 28: In our Constitution Article 28 provides freedom to attend any religious instruction or religious
worship in educational institutions.
 Article 29: This article gives equality of opportunity in educational institutions.
 Article 30: Acknowledge the right of minorities to establish and administer educational institutions.
 Article 45: This article mandate the state shall dispense to provide within a period of ten years from the
inception of this Constitution for free and compulsory education for all children of this country until
 they complete the age of 14 years. The responsibility for providing elementary education lies with the
scope under state Government, the central Government, the Local Bodies and authorities, and
voluntary organizations or any other government organization.
 Article 46: Talks about the special care for the furtherance of education and economic interests of the
Scheduled Tribes, Scheduled Caste, OBC and the weaker sections of society.
 Article 337: This article regulates the special provision with respect to educational grants for the benefit
of the Anglo-Indian community.
 Article 350B: It provides for grants and offers for linguistic minorities.
 Article 351: This article deals with the development and promotion of the Hindi language.

86th Constitutional Amendment Act

This constitutional amendment is made with regard for protecting the citizens right of education, as we know the
challenges in India regarding education, so it is quite necessary for the policymakers of this country to amend the
constitution and bring some changes in educational policy, so that more people in India will get the right of
education, and transforms their lives towards a better future.

86th constitutional amendment act, 2002 brings three new changes in our constitution, for the better functioning,
and to facilitate a better understanding of the right to free and compulsory education to the children age group
between six to fourteen. (6-14)

These are:

1. Insertion of new Article i.e, 21A in part III of the Indian constitution, which provides that every child
has the right to free and compulsory education of equitable quality and subject to some norms and
standards.
2. Bring alteration and modification in Article 45 and substituted as the State shall endeavor to assure
early childhood care and free and compulsory education for all children until they complete the age of
six years.
3. Adding the new clause, (K) under Article 51A, the result of this new fundamental duty is added which
states that whosoever is a parent or guardian has a duty to furnish opportunities for education to his
child or, as the case may be, ward between the age group of six to fourteen years.

 In Shyam Sundar case [5]

Court held that the “right of a child should not confines only to free and compulsory education, but should be
enhanced to have quality education without any discrimination on the basis of their economic, social and cultural
background.

Judicial Approach

The State of Madras v. Shrimati Champakam Dorairajan [6], in this case the supreme court gives a landmark
judgment. This judgment results in the First Amendment of the Constitution. Here the court held that providing
such contradictory reservations was the reason for infringement of Article 29(2) of the Indian Constitution. Court
held:

Fundamental rights are sacred and can not be a subject to abridged by any legislative or executive action or order
except provided in part III. directive principles of state policy have to be uniform and should be run on a subsidiary
basis related to a fundamental right. However, if there is no infringement/violation of rights conferred by part III of
the Indian constitution, there can be no objection over, the state acting in accordance with the directive principles
of state policy.

The observation of the right to free and compulsory education was put up in the case of Mohini Jain in 1992,
which famously known as “capitation fee case”.

The questions to be observed in this case were:

1. Is there a clause of ‘right to education’ guaranteed to the people of India provided in the Constitution? 
2. If so, does the aspect of ‘capitation fee’ implied in the same?
3. Whether putting of capitation fee in regard to admission to educational institutions is arbitrary, unjust,
and unfair and such violates the equality clause provided in Article 14 of the Constitution?
The division bench of the Supreme Court said that the ‘right to life’ is an essential element for all those rights
which the Courts must enforce as they are important to the dignified enjoyment of life. The right to education
moves directly from the right to life. The right to life provided under Article 21 and the dignity of an individual life
is not being achieved unless it is tossed and coupled with the right to education.

Education in India can not be a product for sale. We hold that every citizen of India has the ‘right to education’
under the Constitution. The State is under a legal obligation to formed educational institutions to enable the
citizens to enjoy the right mentioned above. The State may discharge its duty through State-owned or State-
recognised educational institutions. When the State Government gives grants recognition to the private
educational institutions it mandates an agency to fulfill its duty given and mentioned under the Constitution. The
students must be given admission to the educational institutions – whether State itself owned or State recognized
in bearence of their ‘right to education’ under the Constitution. Charging capitation fee for the purpose of
admission to an educational institution is a violation of a citizen’s right to education under the Constitution.

Court also observed that the Constitution made it compulsory to give education to all its citizens. This
interpretation solely would assist the people to metamorphose the objectives of political economic and social
justice. And charging capitation fee of large sums by institutions of higher education is a repudiation of the right to
education.

The Supreme Court observed the validity of the verdict given by the court in Mohini Jain in the case
of Unnikrishnan.

The bench of five Judges by 3-2 majority partially agreed with the Mohini case decision and held that right to
education is a fundamental right under Article 21 of the Constitution as it directly flows from “right to life”. As
considered, the court partially overruled the Mohini Jain’s decision and observed that the right to free and
compulsory education is available only to children until they complete the age of 14 years, after that the
responsibility of the State to provide education is subject to the limits of its economic capacity. “Thus it is well
observed by the decisions of this Court that the provisions of Part III and Part IV are complementary and
supplementary in nature to each other and fundamental right means to achieve the goal inculcate in Part IV of
Indian constitution, It is also observed that the fundamental rights should be established in the light of the
directive principles”.

Right To Education Act, RTE 2009

The Right to education act is an act of parliament proposed on 4 august 2009 which shows and highlights the
model of the importance of free and compulsory education to children age group 6-14 in India. India has become
one of the 135th countries to implement the right to education as a fundamental right guaranteed in our
constitution under Article 21A to every child. This act came into force on 1st April, 2010.

It received President assent and was conferred as the law on 3 Sept 2009 as The Children’s Right to Free and
Compulsory Education Act RTE, 2009. 
After many schedules of meetings, drafting and redrafting the right to education act was made which is a genuine
instrument to full fill the basic demand and securing social justice for every child. This policy work on  4A’s which
tells about what education means to them and their present situation in the context of this ideology.

Availability – In that sense education is free and the government is bound to fund the education and expert
teachers in his/her subject and well qualified are there and sufficient infrastructure able to support educational
framework.

Accessibility – Means the education is for all, there is no sense of discrimination especially to support the weaker
section of the society.

Acceptability – That the value of education is appropriate, there is no discriminatory and culturally acceptable, and
subject to some quality; that the school place which is harmless and teachers are well qualified.

Adaptability – That education dynamic and develop with the changing needs of society and its people and
contribute to overcome the inequalities, such as sex discrimination.

Conclusion

 The rate of literacy is still under construction so in order to make this rate on increasing then there should be
more act and ordinance of right to education will be accompanied. Then only India can transform into a developing
nation, and will never set back as the citizens are educated.

supreme court perspectives of preference of residence of a state relating to admission to educational institution

Constitutional Validity Of Domicile Reservation

The constitutionality of the domicile reservation has been challenged time to time. However, the first case that
comes in mind when we talk about constitutionality of the validity of domicile reservation is D P Joshi vs State of
Madhya Bharat [8]where the government was promoting education by providing some concession in the fee for
the residents of that state alone.

This was challenged in the Court, and the Supreme Court stated that it is a legitimate objective which is fulfilling
the requirement of article 14 of the Constitution and this classification based on 'domicile' provides a rational
Nexus with such objective. In this case, only Supreme Court ruled the distinction between the 'place of birth' and
'residence' regarding the term 'domicile' and observed that 'residence' does not exist in article 15, but it is found in
article 16(2) of the Constitution[9].

Thus a state action that benefits its people would not violate Article 14 or 15[10] of the Constitution; therefore,
this classification based on domicile was constitutionally upheld by the Supreme Court.

Secondly, it was challenged in Dr Pradeep Jain v Union of India [11]where it is challenged that domestic
reservation in medical colleges violates Article 14, 15 and 16[12] of the Indian Constitution. But the Court argued it
on a similar line to DP Joshi that it is for the benefit of the local people and therefore it falls under the domain of
reasonable classification under article 14[13]. The Court also said that it is similar to when people pay taxes and in
return, the government provides benefit to its people.

Similarly, it is investing in their local colleges by providing domestic reservations for the people's welfare; most
probably, these students will be serving the state in the future. Therefore the Supreme Court upheld its
constitutionality.

Domicile reservation was again challenged in the 2003 case of Saurabh Chaudhary and ors. v/s Union of India [14]
was a challenge against the constitutional validity of reservation in a postgraduate course in government Medical
College. Here again, the Court argued on a similar line as D.P. Joshi and upheld the constitutional validity of
domicile reservation.

From the above cases, we can see that from time to time Supreme Court has paid much attention towards the
interest of people of a particular state at the cost of national interest as permitting domicile reservation in a
particular state hinders the chances of other students throughout the Nation to apply for that seat. It is also not
true that most students will stay back and serve their state in the future. The Supreme Court has upheld the
constitutionality of domicile-based reservation but overlooked many problems that we will be discussing in the
next part of the paper.

Issues With Domicile Reservation

A. Intra-State Problems
From the above cases of DP Joshi and Pradeep Jain, the Supreme Court has mainly relied on two
arguments to depart from the merit-based selection principle. First is the 'doctrine of sons of soil' where
the state provides services to the state's people by giving domestic reservation to the students who are
likely to settle down and serve the people of the state in the future. And second is the region's claim of
backwardness. [15]

There are some significant problems with the argument given by the Supreme Court, First of all, not all
the states are homogenous in terms of backwardness and domicile reservation cannot address the intra-
state problems or help the weaker section of the society instead it would put the strong and elite section
of the society to a more favourable position.
As you know, India is a diverse country, and each state is entirely different from the other in many
aspects. Similarly, all states do not have adequate educational institutions, or the quality of education is
not the same, whereas some States might have better educational institutions than others.

Thus, students might prefer to go to other states to pursue their higher education, but if such a state with
good educational institutions would have a domicile reservation, it would be challenging for other states'
students to pursue their education in those States. Therefore a domicile reservation in a single state
would affect the interest of the entire Nation. [16]

The similar line of thought could be found in 2014 of Vijay Goyal and others v State of Karnataka and
others, where the state government had applied domicile reservation to postgraduate courses in medical
and dental colleges in Karnataka. Subsequently, it was challenged in the Supreme Court.

The Court declared that this requirement of domicile reservation in higher-level education Institutions
would be Ultra vires of article 14 of the Constitution and the Court relied on the opinion of Pradeep Jain v
Union of India [17]where it said that when we talk about higher-level institutions, then the eligibility
criteria other than excellence or skills like the residential status of a student would violate article 14 of the
Constitution and would also compromise the quality of education and hamper the interest of the Nation.
[18]
 The justification given by the Court in cases like D.P. Joshi is fallacious as even a small amount of
reservation based on domicile would be discriminatory as that amount of meritorious candidates would
be deprived of their fundamental rights. On the point of the doctrine of sons of the soil, there seems no
reasonable guarantee that an individual residing in that particular state would practice a profession in his
state after graduating from the institution[19].

Many surveys have shown that a great majority of students getting admissions under the domicile
reservation would prefer to pursue their careers in other states due to good job opportunities and owe to
globalisation in different countries.[20]

On the significant point to curve backwardness of the people due to domicile reservation does not make
any sense because a person having reservation in a particular state has nothing to do with backwardness,
even more, it would give an upper hand to the elite section of the society over the weaker section of the
people of that particular state and widen the gap, so it does not address the issue of backwardness. It
seems there is an error in identifying the Crux of the problem.

So from the above discussion, it is evident that state domiciled is nothing but state using its power for the
Welfare of its people which would be fair if it was in the case of state universities but in case of
universities of national importance where seats are being allotted based on all India entrance
examination, then giving reservation based on residence in that particular state would be discriminatory.
It clearly shows that it is for the local people's Appeasement and not a step towards national good or
benefit.[21]

In the case of A. Peeriakaruppan vs State of Tamil Nadu, [22]it was held that allowing reservation based
on residence in a particular state would be discriminatory as an intra-state domiciliary classification has
been held to be discriminatory.

On domicile, reservation courts are mainly concerned about the intra-state impacts rather than the inter-
state consequences. However, they need to also focus on, if most of the states with the Institutions of
national importance started adopting these domicile reservation policies then it would result in a national
effect of ghettoization, thus restricting students from other states to seek better education quality in
Metropolitan areas and nationwide segregation could be observed. Hence, under domicile reservation,
national importance should be considered the utmost priority and even above the dual test's formal
requirements under article 14. [23]
 
B. Homogenization

i. On Geographical Grounds:
Supreme Court has very clearly upheld the constitutional validity of domicile based reservation in
both the cases DP Joshi and N. Vasundhara v State of Mysore [24]case. But the reasoning
behind this judgement seems a bit flawed as the Court takes into account that in case of an all
India entrance examination individuals would have equal opportunities for the admissions if you
would not take into consideration of the diverse level of social, economic and educational
differences of different regions, where students from underdeveloped/backward or too remote
regions would experience difficulties to compete with the students of highly developed / elite
cities.

This reasoning given by the Supreme Court seems reasonable but this would not change things as
by implementation of domicile based reservation would creat same level of disparity within a
state where some regions would be much better than others and eventually lead to
discrimination within a state.

It could also be seen in case of The State of Uttar Pradesh v Pradeep Tandon [25]where it was
 held that there is a significant degree of differences between The villages in a particular state so
you cannot homogenize the villages. Therefore no student should be denied of his educational
share solely based on geographical grounds.
 
ii. On Backwardness:
As we discussed above, we cannot homogenize a particular state as backward because there are
different regions within a state with different levels of backwardness and there might be a
significant amount of Urban and rural divide within the state, this could be very true in case of a
state with a larger population so we cannot put an umbrella policy providing reservation to all its
residents to overcome the backwardness of the weaker section because it does not tend to help
the weaker section instead put the advanced section of the society in an advantageous position.

The Court struck down this type of homogenization of a state based on backwardness in
Nidamarti MaheshKumar vs the State of Maharashtra[26], Where this region-wise classification
was defended because a region called Vidharbha was more backwards as compared to Pune and
Bombay backward regions. But the Court did not find any material facts to show that an entire
region within the jurisdiction of Vidharbha was backwards or an entire region within the
jurisdiction of Pune was advanced. Thus, the Court declined to categorise region-wise universities
based on backwardness. [27]
 
iii. Intolerable Classification:
This classification according to the domicile is not reasonable only on the basis that you should
pass the duel test of article 14 which is rational Nexus and intelligible differentia because it
neglects the other parties who will be facing the consequences of these reservations, and this
'unreasonable comparison' Is highly formalistic and limits the classical doctrine as it is visible that
in order to avoid unjust outcomes the Court does not accept these classifications by placing
certain interest above these requirements of the test.[28]

As Justice Indu Malhotra in the Navtej Johar case interpreted intelligible differentia as reasonable
differentiate, this classification is reasonable only if the legislation does not discriminate based
on the intrinsic and core values of an individual. Thus differentiating an individual based on his
core characteristics is unacceptable.

This idea could be seen in domicile reservation. Except a few people, mostly residence is selected
based on Cultural, Social and Economical conditions of an individual and children don't usually
have a right to say in this matter since they are completely dependent upon their parents.
Therefore, it is reasonable to say that place of birth and domicile cannot be seen any different in
case of a student, and this classification of dual test completely fails in the current situation
because it affects the core value of that individual.