NATIONAL LAW UNIVERSITY ODISHA, CUTTACK

“Analysis of Education as Service and Students as Consumers

under the Consumer Protection Laws in India”

DISSERTATION SUBMITTED IN PARTIAL FULFILMENT OF THE

REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS

UNDER THE SUPERVISION OF:

Ms. Eluckiaa A
Assistant Professor of Law
National Law University Odisha, Cuttack

SUBMITTED BY:

JAYPRAKASH MISHRA
21/LL.M./018
 DECLARATION
I hereby declare that the work in this dissertation entitled “Analysis of Education as Service
and Students as Consumers under the Consumer Protection Laws in India” submitted
at National Law University Odisha is an outcome of my bonafide work under the
guidance of the respected Supervisor. I have duly acknowledged all the sources from which
the ideas and extracts have been taken. To the best of my understanding, this work is free
from any plagiarism.

(Signature of the student)

National Law University Odisha JAYPRAKASH MISHRA

Date: 2021/LL.M./01
 National Law University Odisha, Cuttack

(Established by Act-IV of 2008)

CERTIFICATE
This is to certify that the Dissertation titled “Analysis of Education a Service and Students
as Consumers under the Consumer Protection Laws in India” is a bonafide record of
independent research work done by Jayprakash Mishra (2021LLM018) under my supervision
and submitted to National Law University, Odisha in partial fulfilment for the award of the
Degree of Master of Laws.

Supervisor Signature
 ACKNOWLEDGEMENT

I would begin by paying my reverence to Lord Shri Jagannath. I would like to extend my
gratitude to my family, friends and every person who has helped me in the progress and
completion of my dissertation work. Then, I would like to extend my gratitude and thanks to
my guide Assistant Professor of law at National Law University Odisha, Ms. Eluckiaa A. She
was very helpful to me throughout my journey of Masters in NLUO. She was a constant
support to me throughout the entire process of my dissertation. She gave the best guidance,
insight and support during my research for dissertation. She always advised me to have
originality of work and to give my dissertation all the efforts I could. She always ensured that
I did not deviate from the topic and assisted me greatly with invariable information to help
complete the dissertation. Without her supervision and constant help this dissertation would
not have been possible. Lastly, I would like to thank all the members of the NLUO family
who were in some way or other connected to my overall growth as a good student and a
better human being.

Jayprakash Mishra

2021/LLM/018
 Table of Contents
DECLARATION ......................................................................................................................................... 2
CERTIFICATE ............................................................................................................................................ 3
ACKNOWLEDGEMENT ............................................................................................................................. 4
LIST OF AUTHORITIES .............................................................................................................................. 7
LIST OF CASES.......................................................................................................................................... 8
LIST OF ABBREVIATION ......................................................................................................................... 12
INTRODUCTION ..................................................................................................................................... 13
LITERATURE REVIEW ......................................................................................................................... 14
RESEARCH GAP .................................................................................................................................. 21
STATEMENT OF PROBLEM ................................................................................................................ 22
RESEARCH OBJECTIVES ..................................................................................................................... 22
RESEARCH QUESTIONS...................................................................................................................... 22
RESEARCH METHODOLOGY .............................................................................................................. 23
SCOPE AND LIMITATIONS ................................................................................................................. 23
I.- HISTORICAL DEVELOPMENT ............................................................................................................. 25
I. 1- HISTORICAL DEVELOPMENT OF EDUCATION POLICIES ............................................................. 25
I.1.1- Historical development of education in Ancient India ........................................................ 25
I.1.2- Historical development of education in colonial India ........................................................ 25
I.1.3- Historical development of education in independent India ................................................ 26
I.1.4- Further growth of commercialisation of education ............................................................ 27
I.1.5- Effect of the LPG policies on education sector .................................................................... 28
I.1.6- Recent trends in education sector ....................................................................................... 29
I. 2. -HISTORICAL DEVELOPMENT OF CONSUMER PROTECTION LAWS ............................................ 30
I.2.1- Basic objectives of the consumer protection laws .............................................................. 31
I.2.2- Provisions in the Indian Constitution relating to consumer rights ...................................... 32
I.2.3- Analysis of Consumer Protection Act, 1986......................................................................... 33
I.2.4. - Modifications under the amendment Act of 1993 ............................................................ 35
I.2.5.- Examining the Consumer Protection Act , 2019 ................................................................. 35
II.- BRINGING EDUCTION WITHIN THE PURVIEW OF THE CONSUMER PROTECTION LAWS ................ 39
II.1.-DEFINING CONSUMER AND SERVICES ....................................................................................... 39
II.2.- SERVICES UNDER INTERNATIONAL LAWS ................................................................................. 44
II.3.- DIVERGENT APPROACHES ......................................................................................................... 44
II.4.- ANALYSING THE DIVERGENT APPROACHES .............................................................................. 62
III.- DEFICIENCY OF SERVICES AND UNFAIR TRADE PRACTICES IN EDUCATIONAL INSTITUTIONS........ 68
CONCLUSION......................................................................................................................................... 76
BIBLIOGRAPHY ...................................................................................................................................... 78
 LIST OF AUTHORITIES

Statutes

1. Constitution of India
2. Consumer Protection Act, 2019
3. Monopolistic and Restrictive Trade Practice Act, 1969 (repealed by the enactment of
Competition Act, 2002)
4. Competition Act, 2002

Policies and Reports

1. National Education Policy, 2020

2. Education Commission Report, 1966
 LIST OF CASES
 Housing Authority of Haryana v. Employees Union, 1996 SCC (1) 95

 Consumer fin. Protection bureau v. Corinthian Colls Inc, 2014 WL 5786691

 Monisa Samal v. Sambalpur University, (1992) CPJ 231 (232) (NC)

 Bihar Education Board v. Suresh Prasad Sinha, 2009 CTJ 1057 (CP) (SC)

 C. Venkatachalam vs Ajitkumar C. Shah & Ors , CIVIL APPEAL NO.868 OF 2003

 Neena Aneja & Anr. v. Jai Prakash Associates Ltd, Civil Appeal Nos. 3766-3767 of
2020

 Manu Solanki v. Vianayak Mission University, 2020 SCC OnLine NCDRC 7

 International Airports Authority of India v. Solidaire India Ltd., 2015 SCC OnLine
NCDRC 2715

 Punjab University v. Unit Trust of India, AIR 2014 SC 3670

 Synco Textiles Pvt. Ltd. v Greaves Cotton and Company Ltd., I (1991) CPJ 499 (504,
507-508) (NC)

 State of Orissa v. Divisional Manager, LIC1996 SCALE (3)609

 Lucknow Development Authority v. M.K. Gupta, (1993) 4 SCALE 370.

 Indian Medical Association v. V.P. Shantha, AIR 1996 SC 550

 S.P. Goyal v. Collector of Stamps, Delhi, (1996) SCC 573.

 Maharshi Dayanand University V. Surjeet Kaur, Civil Appeal No. 6807 of 2008

 Buddhist Dental Mission V. Bhuprsh Khurana, 2009 (2) Scale 685

 Secretary, Board Of Secondary Education, Orissa V. Santosh Kumar Sahoo, Civil

Appeal No. 4967 OF 2010 (Arising out of SLP(C) No. 13872 of 2009)

 P.T. Koshy V. Ellen Charitable Trust, MANU/SC/1324/2012

 P. Shreenivasulu V. P.J. Alexander, Civil Appeal Nos.7003-7004 OF 2015 (Special
Leave to Appeal (C) No(s). 2523-2524/2003)

 Ranchi University V. Sneh Kumar, Civil Appeal No(s).3163 of 2011 (Arising out of
SLP(C) No.3374 of 2008)

 Punjab Urban Planning and Development Authority v. Vidya Chetal, Revision

Petition No.889 of 2013 with I.A.No.1609 of 2013

 Bangalore Water Supply Board v. A. Rajappa, AIR 1978 SC 969

 Anupama College of Engineering v. Gulshan Kumar and Anr., Civil Appeal No.
17802 of 2017( Special Leave to Appeal (C) No(s). 17679/2017)

 Shivam Malhotra V. Managing Director, Oxl School Of Multimedia And Ors,

MANU/CF/0148/2022

 P.A Inamdar v. State of Maharastra, Civil Appeal no. 5041 of 2005 (SC)

 Registrar, Manonmaniam Sundaranar University V. Sreosi Chatterjee And Ors,

MANU/CF/0148/2022

 Rajendra Kumar Gupta V. Virendra Swarup Public School, First Appeal No. 852 Of
2016 (Against The Order Dated 03/06/2016 In Complaint No. 29/2006 Of The State
Commission Uttar Pradesh)

 L.B.S Group Of Education Institute V. Arjun Singh And Ors., Revision Petition No.
544 OF 2020 (Against the Order dated 19/12/2019 in Appeal No. 1275/2019 of
the State Commission Rajasthan

 University Of Petroleum And Energy Studies V. Anuj Kanwal, Revision Petition No.
1474 Of 2013 (Against The Order Dated 20/03/2013 In Appeal No. 917/2012 Of The
State Commission Delhi)

 M.P. Singh Rathore V. Little Flowers Public School And Ors., Revision Petition No.
1932 Of 2019 (Against The Order Dated 16/05/2019 In Appeal No. 415/2010 Of
The State Commission Delhi)

 Sumit Upadhyay V. Chandanvan Public School, MANU/CF/0213/2020

 Oza Niru Kanubhai V. Central Head Institute, Appeal no. 35 of 2020 (NCDRF)

 Jai Kumar Mittal V. Brilliant Tutorials, Original Petition No.51 Of 1995

 University Of Karnataka V. Poonam G. Bhandari, FA No. 245 of 1992, decided on

16-9-1993

 Board Of Examinations V. Mohideen Abdul Kader, (1997) 2 CPJ 49 (NC)

 Deputy Registrar (Colleges) V. Ruchika Jain, Revision Petition No. 1121 Of 2005
(From The Order Dated 17.3.2005 In R.P. No. 156 Of 2004 Of The State
Commission, Haryana)

 Himachal Pradesh University V. Sanjay Kumar, (2003) 1 CPJ 273 (NC)

 Birla Institute Of Technology & Science V. Abhishek Mengi, (2013) 2 CPJ 681 (NC)

 FIITJEE Ltd. v. S. Balavignesh, (2015) 3 CPJ 112 (NC)

 Madan Lal Arora V. Mahshya Chuni Lal Saraswati Bal Mandir Senior Secondary
School, (2013) 2 CPJ 450 (NC)

 Balmer Lawrie and Co. Ltd. v. Partha Sarathi Sen Roy, Civil Appeal Nos. 419-
426 Of 2004

 Katurilal v. State of Uttar Pradesh, 1965 SCR (1) 375

 Dr. Laxman Balakrishna Joshi v. Dr. Trimbak Bapu Godbol, AIR 1968 SC 128

 Sailesh Munjal v. AIIMS, (2004) 3 CPR 27 (NC)

 Vice Chancellor, Punjab University, Patiala v. Ashutosh, 2003 (1) CPJ 17 (NC)

 Adhiyaman College v. S. Venkatapathy, 1995 (3) CPJ 14 (NC)

 Frankfinn Institute of Air Hostess Training and another v. Aashima Jarial, 2019 SCC
OnLine NCDRC 380

 Indian Institute of Banking and Finance (IIBF) v. Mukul Srivastava, REVISION

PETITION NO.3161 OF 2012

 Sonal Matapurkar v. Ningilappa Institute, 1997 SCCOnLine NCDRC 27

 Bhaskar Golla v. Ramakrishna Vidyashrama, 2019 SCC OnLine NCDRC 1181

 HCMI Education v. Narendra Pal Singh, (2013) 3 CPJ 121

 Shaheed Bhagat Singh Public School v. Anoop Singh, 2012 SCC OnLine NCDRC
519

 Allen Career Institute v. Anil Kumar Sharma, Appeal No. 357 of 2018

 Sehgal School of Competition v. Dalbir Singh, III (2009) CPJ 33

 LIST OF ABBREVIATION

SCC- Supreme Court Caes

AIR- All India Reporter

SC- Supreme Court

NC- National Commission

NCDRC- National Consumer Dispute Redressal Commission

CPJ- Consumer Protection Jouranal

CPR- Consumer Protection Reports

COPRA- Consumer Protection Act

 INTRODUCTION

The positioning of students as consumers is emerging as a global phenomenon. The rapid

development, growth of urban economy, increased standards of living, rapid growth of
technology, rise in the number of private educational institutions and increased investment in
educational sector have all caused education to take the form of a commercialized
undertaking. With the increased commercialisation of education, students are now being
viewed as consumers and the imparting of education as service under consumer protection
laws under various legal systems.1 This is what the world today refers as Student
Consumerism.2 Student consumerism is defined as the increasing association of students with
consumer specific behavior resulting out of the close proximity of education as a service
under consumer protection laws.3 The question as to whether the consumerism in educational
sector will be beneficial or detrimental for the growth of education and academic excellence
is one of sociological evaluation. There is a pressing need to focus on the legal aspects as to
whether the facets of education viz. admission of students, charging of fees, conduct of
examination, curriculum, assessment and issuance of pass certificates etc. come under the
purview of “services” and whether the students that are the beneficiary of the aforementioned
amenities are “consumer” under the scope of consumer protection laws.

There is a pressing need to study the legal consequences of equating students as consumers
and education within the gamut of service as per the provisions of consumer protection laws
of India. This would be discerned by analyzing the judgments of the Supreme Court of India
and the National Consumer Dispute Resressal Commission, statutory laws relating to
Consumer Protection and the various research articles showing the prevalent and applicable
laws in India and other countries.

There are some basic issues in the student-consumer debate. Tuition increases have created a
nationwide student debt problem, prompting many students and parents to question the value
of a higher education.4 Students are now interacting with the educational institution in the
capacity of a consumer. Businesses and institutions, on the other hand, have fundamentally

1
Patty Kamvounias and Sally Varnham, 'Getting What They Paid For' (2006) 15 Griffith Law Review.
2
Emily Fairchild and Suzanna Crage, 'Beyond the Debates: Measuring And Specifying Student Consumerism'
(2014) 34 Sociological Spectrum.
3
Ibid.
4
Sabine Chaouche, 'Consumer Credit Traps And Student Consumerism' [2020] Student Consumer Culture in
Nineteenth-Century Oxford.
distinct missions: the former seeks to increase profits, while the latter is to promote learning.
Furthermore, students who see themselves as consumers adopt postures or attitudes that are
detrimental to actual learning. Consumeristic mentality, for example, is marked by academic
entitlement.5 Students are under the conception that they have a prerogative to a degree
because they pay the fees. Students have been conceived as consumers and clients of the
"products" and services "offered" by institutions of higher learning as colleges and
universities have become more business-like.6

Psychological as a discipline has mostly been mute on the subject of student consumerism,
despite the fact that it may have a lot to contribute to this growing field of study. For
example, psychologists working in the field of individual differences could look at whether
particular character traits or values (such as consumerism or a sense of entitlement) are more
prevalent in highly consumer driven students than in their less consumerist colleagues. This
understanding may enable us to 'target' highly consumer driven students and question their
views, as well as explore how current marketing, service, and teaching practices in higher
education may be leading to the formation of consumer culture personalities in some
students.

LITERATURE REVIEW
 Commercialisation of Higher Education in India by Priya Roy 7

There is a general allegation that educational institutions have been converted to a place
selling education. The standards of education have all gone down and they have been
converted into teaching shops. The Supreme Court of India used these words in the case of
Mohini Jain v. State of Karnataka8 to describe the charging of high capitation fees for
admission into private unaided educational institutions. The Court went on to quash the
notification that provided for such charging on the ground that they were arbitrary and
unreasonable. This article tries to equate education with commodity. The article clearly
highlights the freedom enshrined under Article 19(1)(g) of the Constitution of India and the
problem of commercialisation of higher education in the context of both private unaided
institutions and minority unaided institution. The article does not relate to the concept of

5
Janice A. Newson, 'Disrupting The ‘Student As Consumer’ Model: The New Emancipatory Project' (2004) 18
Journal for International Relations.
6
Ibid (n 2).
7
Priya Roy, 'Commercialisation of Higher Education in India: The Thriving Issues and Its Judicial Reparation'
(2017) 8 Indian JL & Just 173.
8
AIR 1992 SC1858.
Consumer protection per se but gives a brief idea of the starting point of the student-
consumer debate.

In respect of such matters, the courts are generally approached through the writ jurisdiction.
A person can move to the Supreme Court or High Courts under Article 12 which the Supreme
Court has held in the case of Housing Authority of Haryana v. Employees Union9.The Court
has now stated that when the educational institutions are funded by the government, any
person aggrieved by the act or decision of these educational institutions can approach the
Supreme Court for remedy under Article 32 of the Constitution of India. 10 It is required that
such act or decision is violative of the fundamental right guaranteed under Part III of the
Indian Constitution. The person can move to the Supreme Court of India or the High Courts
against the violation of fundamental rights by the educational institutions.

The student- consumer debate has been greatly influenced by the forces of marketisation and
rise in the tuition fees. It is imperative to know that these are against the traditional values of
higher education and this has resulted in a psychological transformation of viewing education
as a means of personal transformation to the point of an intellectual rewarding system. There
has been a sense of entitlement and rights associated with this changing phenomenon.11 There
is a discussion on some of the prominent issues that have made the psychological
transformations in the student perception towards education. The article does make a leap
towards suggesting that these transformations have been at the base of the formation of the
consumer specific behaviour by the students.

 The Impact Of Student Consumerism Metaphor On Higher Education

Students: A Critical Review Of Literature by S. Pathan, H. Mahesar & S.
Shah12

The other side of the debate that is discussed in this article says that the educational system is
not affected by the growth of the student consumerism alone but it is also attributable to the
growth of the for-profit universities in the LPG era. The authors provide a contrasting
argument to the subsisting argument that growth of the student consumerism has degraded
the system of education. But they assert that the unresponsive behaviour of administration in
9
1996 SCC (1) 95.
10
M.P. Jain & S.N. Jain, ‘ Principles of Administrative Law’ ( 7 th ed. Lexis Nexis 2020).
11
L.C. Wilkinson & M.D. Wilkinson, ‘Value for money and the commodification of higher education: front-line
narratives, Teaching in Higher Education’ (2020) DOI: 10.1080/13562517.2020.1819226.
12
S. Pathan, H. Mahesar & S. Shah, ‘The Impact Of Student Consumerism Metaphor On Higher Education
Students: A Critical Review Of Literature’ (2017) Special Issue Grassroots Journal.
controlling the education policies and the decline in the economic situation are the problems
to blame.

 Private Higher Education in India by JBG Tilak13

The growth in private unaided education has grown that has caused the lessening of the view
of education as a public good and the administrative policies in India have just tried to hide
behind the curtain of private enterprise and increase in an investment friendly environment.
This article has tried to critique the government initiatives regarding the policies that it has
made for development of education infrastructure and substance.

 Profiteering in the Higher Education Sector in India by Gayatri Loomba14

Profiteering seems to be the essential phenomenon that has impacted education globally. The
profiteering of the educational institution has been developing from the system by which
education has developed from a system of social good to commoditised education system.
The arguments against the conceptualisation of education as profiteering asset have been that
it is a “merit good”. It is beyond the scope of monetary exchange. This has led to
governments everywhere subsidising education. The arguments in favour of such
conceptualisation have treated them as goods that provide social mobility and speak highly of
the inclusion of education within the system of liberalisation, privatisation and globalisation.
They accept the marketable nature of education. The author seems very impressed by the
promising nature of the for-profit system of education so as to increase investment in the field
of education, increase access to quality education, increase in enrolment ratio in schools and
thereby provide employment opportunities.

 Higher Education as a Luxury Good by Haochen Sun15

The 2019 education scandal in the US has prompted people to think that the increased
luxurification of the higher education has resulted in the creation of a class division that has
thrived on the economic viability of the students and thus there is an imminent need to
recognise the importance of the intellectual property laws in the cracking of this class system.
This article has tried to analyse through cases in the US Supreme Court that the decrease in
the access to education has been the result in the luxurification of higher education in USA.

13
JBG Tilak, ‘ Private Higher Education in India’ (2018) Education and Development in India, Palgrave and
Macmillan, Singapore 535-551.
14
Gayatri Loomba, 'Profiteering in the Higher Education Sector in India' (2013) 4 J Indian L & Soc'y 212.
15
Haochen Sun, 'Higher Education as a Luxury Good' (2020) 17 NYU JL & Bus 153.
The author has not argued that there has not been luxurification in the primary education
system as well but it can be assumed that the same trend applies to the education system as
whole irrespective of the class of student. The author tries to argue that this trend can be
dismantled only when the educational institutions use their intellectual property rights in a
way that the entire student community can benefit out of it. The social justice objective of
educational institutions warrants this step.

 Bankruptcy as Consumer Protection: The Case of Student Loans by J.P.

Hunt16

The growth in the consumer specific behaviour can be seen from the rising default in the case
of study loans. In the landmark American case of Consumer fin. Protection bureau v.
Corinthian Colls Inc.17, the Superior Court of San Francisco under the State of California
held that the making false advertisements relating to the placements for luring students to get
loans at higher rates of interest amount to deceptive practice. The bankruptcy court should
waive off the loans of the students if they prove that they were induced by the corrupt
practices of the educational institutions. The author seems to be greatly impressed by the
judgment in the case of Consumer protection bureau v. Caronthian Colls Inc.18. This article
mainly focuses to the debate from the point of student bankruptcy and tries to associate the
deceptive practices at the foundation of these increasing debates. The author tries to find a
solution in the form of government absorbing these loans and also advocates for robust
bankruptcy mechanism for the students as a separate mechanism. But in order to get these
protections from harsh rules against student loan defaulters borne out of deceptive marketing
techniques, requires that they should have access to the consumer protection laws at equal
parlance which has not been discussed by the author. In order to come for adequate relief
against such fraudulent practices, the essential links to be consumer protection laws seem
relevant.

 The Competition and Markets Authority: Higher Education Providers and

Students as Consumers by G.R. Evans19

16
John Patrick Hunt, 'Bankruptcy as Consumer Protection: The Case of Student Loans' (2020) 52 Ariz St LJ
1167.
17
2014 WL 5786691.
18
Ibid (n 6).
19
G. R. Evans, 'The Competition and Markets Authority: Higher Education Providers and Students as
Consumers' (2015) 2015 Educ LJ 22.
It is imperative that the students are provided with adequate knowledge regarding the
consumer rights that they have in the cases of any unfair trade practices that they face in the
school. The article stems from the Consumer Rights Bill, 2013 that repealed the earlier law
relating to consumer protection in states and how such law can be applied in the case of
educational institutions. There have to be necessary changes in the system of the laws so that
the students can take the advantage of these laws. The author also tries to argue that the
intellectual property rights of the students should be a primary concern in the saving of the
rights that are guaranteed by the educational institutions.

 Conceptualisations of the Consumer in Marketing Though by A.M. Kennedy

& Gene Lazniak 20

In the words of John Fitzerald kennedy, “consumers by definition, include us all.” He was of
the view that they constitute the largest economic factor in a society but their views were very
scarcely heard. It is the natural corollary of this statement and the Consumer bill of rights
made by the Kennedy administration in U.S. that any person studying in the educational
establishment is regarded as a consumer. The definition of consumer is provided “as any
natural person using a service for a purpose not connected with its business or a person using
or consuming purchased goods or using services (without reselling)”. 21 It is provided that the
quality of service forms an essential component of the safeguards provided under the
consumer protection laws. Every service should have a general set of associated features
which would deter it from being included within deficiency.22

 Education system in India before and after independence by S.K. Pandey23

The historical development of the education policies have begun with the nature of education
being wholly autonomous, self-sustaining and mostly culturally and religiously integrated to
a privatised enterprise through the work of the British imperial government, the industrial age
in India under Pandit Nehru, the socialistic regime of Indira Gandhi and the dawn of LPG
policies in India. The article describes the development of the policies of education before

20
A.M. Kennedy & Gene Lazniak, ‘Conceptualisations of the Consumer in Marketing Thought’ (2016) 50
Europeam Journal of Marketing 12.
21
Ibid.
22
J. Zivarts, ‘Problems of the consumer rights protection in education: Topical issues’ (2016) 10 (53) SHS Web
of Conferences DOI: 10.1051/shsconf/20141000053.
23
S.K. Pandey, ‘ Education system in India before and after independence’ ( 2019) 6(2) International Journal of
Research and Analytical Reviews, 613-618.
and after independence and tries to clearly distinguish between the Nehruvian approaches of
industrialised education to the socialistic conception of education under Mrs. Gandhi.

 The Growth Of Private Higher Education: An Overview In The Context Of

Liberalisation, Privatisation And Marketisation by F. Qureshi & S. Khwaja
24

The LPG policies that began effect in the world economy also had a wider impact on the
education system as a whole by increasing the number of private educational institutions. The
author try to define how from the system of nationalisation of education, the sector changed
to the system of LPG. Though this article has been written in the context of UK but the
position of India is also similar shown from the development of the education system from a
nationalised self-sustaining system to that of a commercialised undertaking.

 The effects of student-consumerism on discipline specific teaching practices:

a comparison of education and law’ by T. Bennet25

These developments of the profiteering and the consumer specific behaviour have resulted in
the development of student consumerism. The perception of students as consumers so as to
include students within the repository of rights attributed to the consumers for fault in
services is called as student consumerism. This paper tries to relate the marketisation impact
of education that has caused the rise in the student consumerism. It asserts that student
consumerism is both the product as well as the reactant of the forces of marketisation. It
seeks to show the regulatory environment relating to these changes and what impact it has on
the academic standards of educational institutions. The paper has tried to give a brief idea
about the determination of the type of institutions opted by the students and the impact of
market forces to determine such choices. But the study which is qualitative in nature has no
data to support the same.

 Students or Consumers? For-Profit Colleges and the Practical and

Theoretical Role of Consumer Protection by M. Daundon26

24
F. Qureshi & S. Khwaja, ‘The Growth Of Private Higher Education: An Overview In The Context Of
Liberalisation, Privatisation And Marketisation’ (2021) 8(9) European Journal of Education Studies.
25
T. Bennet, ‘The effects of student-consumerism on discipline specific teaching practices: a comparison of
education and law’ (2020) 5(45) Journal of Higher and further education, Rutledge Publications 417-432.
26
M. Daundon, ‘Students or Consumers? For-Profit Colleges and the Practical and Theoretical Role of
Consumer Protection’ (2017) 9 Harvard Law and Policy Review 375-400.
The equation of students with consumer can have the devastating impact of using the
monetary metrics to adjudge the quality and access to education which is a threat to the entire
education system as a whole and the academicians all over the world have tried to minimise
the hovering of excess capitalisation of education. This article advocates for protection to the
consumers and tries to argue that students have been recently burdened with the problems
they face in the educational institutions due to the doctrine of “caveat emptor” and also due to
the fact that the educational institutions always take the help of the diversity and access to
education criteria to defend their stand. There should be a balance within the access to
education stance and the protection of students from bankruptcy rising out of incessant
capitation fees is the idea that is advocated in this article.

 Guide to Competition Law by S.M. Dugar27

In order to be a consumer, the transaction should be for commercial purpose. It means that
there should be a motive of profit. The author provides that the ambit of service is very large
because it includes the element of happiness. If any benefit is provided or any act is done that
promotes happiness, it would termed as service. Only the services that are offered free of cost
or are provided through a contract of personal service are excluded from this definition.

 Law of Torts and Consumer Protection by A. Singh & H. Kaur 28

Since education is not expressly included within the exceptions are provided, it is taken that
education is encompassed in the definition of service. The author provides that service word
included under the definition of Service under Section 2(42) of the Consumer Protection Act,
2019 provides that service can be service of any specification. The ambit of the word is very
wide and this includes anything and everything and is not limited to the activities that have
been defined under the Act.

 Commentary on the Consumer Protection Act by J.N. Barowlia & A. Barowlia 29

The ambit of services under the Act is very wide and although education has not been used in
the provision, there is no reason to exclude education under the ambit of service when fees
are being paid by the students. The author has clearly set out the cases where the Supreme
Court of India has asserted that administering educational institutions comes under the

27
S.M. Dugar, ‘ Guide to Competition Law’ (6th ed. Lexis Nexis India 2016).
28
A. Singh & H. Kaur, ‘ Law of Torts and Consumer Protection’ (3 rd ed. Lexis Nexis 2019).
29
J.N. Barowlia & A. Barowlia, ‘ Commentary on the Consumer Protection Act’ (7 th ed. Lexis Nexis India
2020).
purview of Constitution for being included as a freedom under Article 19(1) (g) of the
Constitution of India. The conduction of examination by university and school board comes
within the definition of of service under the Consumer Protection Act as per the decision of
the National Commission the case of Monisa Samal v. Sambalpur University30. But this is in
sharp contrast to the decision of the Supreme Court of India in the case of Bihar Education
Board v. Suresh Prasad Sinha31 held that conduction of examination by the Bihar School
Board was not a service under the Consumer Protection Act.

 Law of Torts (With Consumer Protection Act and Motor Vehicles Act) by J.N.
Pandey32

Imparting pedagogy for consideration comes under the purview of services under Consumer
Protection Act, 1986(now amended in 2019). Fees are paid for services to be rendered.
Therefore, it will amount to unfair trade practice if false representations are made regarding
affiliation to university or admitting more than the sanctioned strength of students in violation
of rules and regulations. The author has argued in the positive that the students are to be
given the status of consumer under the law because the ambit of service is very large and the
law is a beneficial legislation. The author has given example of some associated activities
which the consumer forum and Supreme Court has not accepted under the ambit of services
because they are not directly associated with the imparting of education viz. activities like
excursion, laboratory experiments, sporting activities etc.

RESEARCH GAP

In this light, the dissertation seeks to examine the following-

1. The interpretation of the term “service” in the context of activities that are conducted
in the educational institutions.

2. The analysis of the term “consumer” from the perspective of students as the
benefactor of the services provided by the educational institutions

30
(1992) CPJ 231 (232) (NC).
31
2009 CTJ 1057 (CP) (SC).
32
J.N. Pandey, ‘Law of Torts (With Consumer Protection Act and Motor Vehicles Act)’ (11 th ed. Central Law
Publication 2019).
 3. The elucidation of the legal consequences of interpreting the terms “service” and
“consumer” in the context of educational organisations.

4. The study of the meaning and scope of “deficiency of service” and “unfair trade
practice” in their application to the educational institutions.

STATEMENT OF PROBLEM

The age of liberalisation-globalisation-privatisation has bought widespread reforms into the

educational sector. Initially recognised as an essential attribute of social well-being and
holistic growth, education has now taken the veil of commercial undertaking. This requires
an analysis of the interpretations of the words “services” and “consumers” as used in the
consumer protection laws and their application to educational institutions .The Supreme
Court of India and the National Consumer Dispute Redressal Commission have given
conflicting decision regarding the incorporation of service within the consumer protection
laws.

RESEARCH OBJECTIVES

1. To analyse the legal validity of attributing the status of service on education under
Consumer protection laws in India
2. To examine feasibility of interpreting the term consumers so as to include students
within its ambit.
3. To analyse the deficiency of services in the context of educational institutions.
4. To examine the bearing of the concept of student consumerism to check the unfair
trade practices relating to educational institutions under the consumer protection laws.

RESEARCH QUESTIONS

I. What is the extent to which the word “Service” can be interpreted so as to include
“Education” within its purview?

II. Does the word consumer in the consumer protection laws in India include students
within its ambit?
 III. Can an education institution be liable for “deficiency of services” under consumer
protection law?

IV. Do the word unfair trade practices under consumer protection laws include certain
practices in the educational sector?

RESEARCH METHODOLOGY

This is primarily a doctrinal research to ascertain the feasibility of construing the students as
consumers and education as services under the consumer protection laws. This research will
rely on the judicial rulings and other relevant laws relating to the impartment of education.
The finding of this research would examine if there is a legal entitlement of the students to
ensure recourse to consumer protection forums and consumer protection laws. Doctrinal
research is a research that involves synthesis of various rules, principles, norms, interpretive
guidelines and values. This research has used both primary and secondary sources. This is a
descriptive research that has tried to describe the position as to the inclusion of educational
sector within the scope of consumer protection laws in India.

SCOPE AND LIMITATIONS

This research is conducted to ascertain the legal validity of construing Students as consumers
and Education as service. It will mainly deal with analyzing the judicial rulings and other
relevant laws in this respect so that impartment of education can be given a legal standard and
would come within the gamut of consumer protection laws. The findings of this research
would provide a legal entitlement of students to ensure recourse to consumer protection
forums and benefit of consumer protection laws. This will allow them access to appropriate
remedies in case of unfair trade practices in educational sector. This will also draw attention
to the legal ramifications of the upward trend of commercialization of education. This
research will involve the study of relevant research articles, Indian and foreign case laws,
juristic writings, relevant statutes and other associated laws.

The limitations are as follows-

I. The researcher would focus primarily on the consumer protection laws in India. The
reference to literature from foreign jurisdiction is made only to draw inferences from
research conducted there. This is not a comparative study
II. The research has not included judgments of High Courts, State Commissions for
Consumer Dispute Redressal and District consumer forums.

CHAPTER I
 I.- HISTORICAL DEVELOPMENT

I. 1- HISTORICAL DEVELOPMENT OF EDUCATION POLICIES

I.1.1- Historical development of education in Ancient India

The historical development of the commercialisation of education in India sharply contrasts

with the system of education that was earlier majorly religious and spiritual. Education was
then majorly regarded then as a system of training for completeness of life.33 It has been
regarded that the commercialisation of education has caused a drastic decline in the ethical
values that surrounded then Gurukul system of education.34 The education system was
developed in the Vedic era through the study and interpretation of the Vedas. The Vedas were
regarded as the first-hand source for educating young minds. Apart from the Vedas, the
Puranas, the Aranyakas, the Upanishads and the Epics were regarded to also have been
important sources of education. As regards the system of education, it was majorly
autonomous and religious.35 The educational institutions mainly relied on the grants given by
the kings for the smooth functioning of the institutions. Apart from that, gratuitous payments
by patrons and gifts were an important source of investment for the development of these
education systems.36 These were taken in the form of guru dakshina that was made taken
from the pupils of the resourceful payments.

I.1.2- Historical development of education in colonial India

The development of education in the colonial period was made majorly without any altruistic
intentions at all and was regarded as a form of skill development to provide services to the
British government and the Crown of England. 37 The Hunter Commission was established in
1882 under the leadership of Lord Ripon for the development of schools, universities and
affiliated colleges. These led to the formation of three universities in the presidency towns of

33
U. Yadav, ‘A Comparative Study Of Ancient & Present Education System’ (2018) 1 (1) Education,
sustainability and society.
34
K.T.Dubey & A.A.Nimje, ‘A Study Of Critical Comparative Analysis Of Ancient Indian Education And
Present Education System’ (2015) 4(1) International Journal of Advance Research In Science And Engineering.
35
H. Scarfe, ‘. Education in Ancient India’ (2002 Brill Academic Publishers, New Delhi), this is a classic book
on the development of the education in Ancient India.
36
J. Tamboli, ‘Education System in Ancient India’ (2016 Indotech Publications Pvt. Ltd. ).
37
S. Diwan, ‘Origin and Development of Higher Education in Ancient India’ (2019) 6(2) IJAR E ISSN 2348 –
1269.
Madras, Kolkatta and Bombay.38 When the system of diarchy was established, education was
shifted to the control of India under the Government of India Act, 1919 which led to the
formation of the Central Advisory Board in 1921 and Inter University Board in 1925 for the
evolution of the higher education system of India. The development of the modern system of
education prevalent in India has been devoted to many by the British colonial rule whereas
others are of the opinion that the system of education was majorly made to promote the
oriental culture and western science.39 The educational institutions were formed by the
government with the help of Christian missionaries and were regularly funded by the
government. But the institutions running in vernacular languages felt the heat of the
unavailability of grants and were forced to shut down or work gratuitously.40

I.1.3- Historical development of education in independent India

After the end of the British colonial rule, the control of the education system came back to the
hands of the Indian government. From the inception of the Constitution of India in 1950,
education was a matter in the state list .The higher education in India was devoted to the
progress of industrialisation in the country.41 Subsequent to that several Acts of Parliament
for giving recognising the institutes of national importance, there were several commission
that were made to regulate the educational institutions in India. The University Education
Commission was setup in 1948 and the Secondary Education Commission was made in 1952.
The major goal of the commission was to increase the quality of the educational institutions
in India. The University Grants Commission was established in 1956. During this period the
development of the institutions of national institutions also called as the central universities
flourished whereas in the state universities and the unaided educational institutions, the
situation was not so smooth. 42 After the election of Smt. Indira Gandhi as the Prime Minister
of India, the focus on the form of education to support the industries was shifted to the one
where more stress was given to the public nature of education. There was a shift from the
elite-oriented education based on technical and professional education to include a social

38
Ibid (n 19).
39
Wm. I. Chamberlain, 'Educational Problems in India' (1910) 1 J Race Dev 110. This is a classic article written
by Mr. Chamberlain on the prevalent system of education in India before the arrival of the commonwealth and
how the reforms were made in this regard to establish a regulated education sector.
40
Ibid.
41
M. Conroy & R. Dossani, ‘Goals and governance of higher education in India’ (2013) 65 (5) Springer
Publications, 595-612.
42
J. Naik, ‘ Policy and Performance of Indian education’ ( Dr. K.G. Saiyadidin Memorial Trust, New Delhi,
1974).
perspective into the education system.43 The Education Commission report of 1966 and the
NEP of 1968 were made so as to stress on multi-language instruction, education on the
agricultural practices and adult education.44 There was an amendment to the Constitution of
India that bought education under the concurrent list under which both the central and the
state legislature could make laws.

In 1986 that was nearly two decades after the genesis of the first education policy, the second
National Education Policy was made and that was made with the prime goal of increasing the
state funding for the education of the backward classes and was later modified in 1992 to
incorporate some of the important reforms in the field of education.45 There was increased
globalisation, democratisation and devolution that impacted education governance. This
could be viewed from the increased affirmative action policies that were made for the benefit
of the underprivileged classes as well as the ethnic classes.46The increase in the private
players went on without any blockage till the case of Unni Krishnan v. State of Andhra
Pradesh47, wherein the Court held that there should be a liberalised interpretation of the non-
commercial nature of education. The trend that followed was for the entry of unaided private
educational institutions into the education sector and to the extent that the government almost
withdrew from the forefront of this section.

I.1.4- Further growth of commercialisation of education

From the point of the autonomous nature of the educational institutions in India to the
increasing commercialisation of education, there has been growth of the operation of the
forces of the market on the education system of the country. There exists a series of divergent
views on this proposition as well. These include the version of the educators who have
regarded that the forces of marketisation have increased the investment in the field of
education and have made access to education a voice of each household.48. But the question
that arises for consideration in this case is that who should invest in education. There can

43
R. Nagaraj. ‘Growth, Inequality and Social Development in India- Is inclusive Growth possible?’ (
Development Pathways to Povert reduction, United Nations Research Institute For Social Development,
Palgrave Macmillan 2013).
44
Ibid, there was an increased absorption of the social prospect of administration into the educational policies as
well.
45
CABE Minutes, June 19, 2010, www.education.nic.in, accessed December 25, 2010).
46
Ibid, the changes in this regard can be seen from the subsequent increase in the quota policies for the OBC
classes and also for the ethnic population in the higher education system.
47
Ibid (n 3).
48
Ibid (n 5).
either be a public or private investment in this case. The public investment would use the
nature of the investment where the government spends money on the social utility services.
Government spending on human capital contributes to the growth of human resources both at
an individual and societal level.49 In respect of some of the growing market economies, the
failure of the government to increase the amount of investment in education has caused a
decrease in the overall development of economy as well. India is one of the countries that has
failed to ensure adequate investment in this sector.50But India has done sufficiently well in
the terms of private investment in education in the recent decades.

I.1.5- Effect of the LPG policies on education sector

The forces of liberalisation, privatisation and globalisation have impacted goods and services
across the world.51 The LPG policies have also impacted the higher education system in
India. The result of the LPG policies can be viewed more frequently in the increasing number
of exchange students in the foreign universities, an increase in the number of Indian students
in renowned institutions across the globe and increasing investment in the education sector.52
The first is the force of liberalisation. Liberalisation is the relaxation of norms in the legal
structure so as to ensure growth.53 The positive impact of the same is in the relation that when
foreign institutions are allowed to enter the Indian market, the Indian institutions try to equate
with such international standards and allow investment. The problem with the liberalisation
policy is that it is an unregulated market and since education comes under the purview of
both the central and the state government, there may be a chance of clash of jurisdiction.54

The facet of privatisation in the LPG era is also to be seen in the context of the increasing
involvement of private players in this area.55 It is pertinent to note that the increasing
involvement of these players in the education sector has caused fair access to quality

49
J. Zhan, ‘The role of public investment in social and economic development’ (Conference on Public
development and its vital for growth and renewal at UNCTAD, April 2008).
50
G. Psacharalopous & H. Patrinos, ‘Returns to investment in education’ 26(5) Education Economics, DOI-
https://doi.org/10.1080/09645292.2018.1484426.
51
R.Y. Kumar & H. Ridwana, ‘A Study of Globalization, Liberalization and Privatization (LPG) and its impact
on Economy’ (2019) 10(2) Research Journal of Humanities and Social Sciences DOI-
http://dx.doi.org/10.5958/2321-5828.2019.00069.X.
52
Ibid.
53
Rahul Sarogi, ‘Investing in India: A Value Investor's Guide to the Biggest Untapped Opportunity in the
World’ (3rd ed.,Wiley India Private Limited, 2014).
54
Nikhil Varshney & Devaditya Chakravarti, 'Liberalization of Higher Education in India - Easy to Lead Or
Difficult to Drive' (2011) 1 Nirma U L J 103.
55
P. Jena, ‘IMPACT OF PANDEMIC COVID-19 on education in India’ (2020) 12 (7) International Journal of
Current research.
education, widened the ambit of education and helped to increase the quality of the education
provided in the country.56 The other side of the story says that the privatisation of higher
education has on some accounts also reduced public participation in the institutions and the
general access to education sometimes gets hampered by this increased involvement by
private players.

The stance of globalisation in relation to the educational policies of India is required to be

mentioned here. Globalisation is the process by which the economy of the country is linked
with the economy of the world beyond national boundaries.57Globalisation not only opens the
economy of the country to the international level but also opens the culture of the country to
the international space. This means that when the process of globalisation occurs, the
economy of the country obtains international standards. In the midst of this, there is also
cultural integration at the international level. The effect of this is that if there is a country
with a dominant status then the other country that has opened its boundaries for the purpose
of economy will also see an influence on the culture of the country as well. 58 The question is
whether this social dominance of the hegemonic countries has influenced the education in
India that has adopted the process of globalisation.. The process of globalisation has impacted
the education system by making globalised education and also has an effect on cultural and
national identity.59 There has been a change in the medium of instruction, curriculum and
learning outcome as well as a result of globalisation. Some of the critics of this process of
education sectors responding to globalisation says that the indigenous education and learning
format has been totally wiped out.60

I.1.6- Recent trends in education sector

The current trends of the education sector have been more involved in the increased growth
and financing of the education sector in India. The recent years of education sector has seen a
56
Ibid (n 19).
57
U. Beck, ‘ What is Globalisation’ (Wiley, London 2018).
58
R. Fischer, K. Hanke & C. Sibley, ‘Cultural and institutional determinants of social dominance orientation: A
cross-cultural meta-analysis of 27 societies’ (2012) 33(4) Political Philosophy, 436-439.
59
Ibid, this includes dramatic changes in the medium of instruction, curriculum, pedagogical changes, and the
subsequent impact on learning outcomes and social dynamics in particular.
60
,A. Joshi, P. Bindlish, & Verma, P. K. Verma, ‘A post-colonial perspective towards education in Bharat
Vision’ (2014) 18(4), 359–363.
shift to the courses of study that have higher economic advantage.61 There has been an
increased privatisation of higher education though some scholars62 have suggested that this
has led to a constraint against Indian students. Globalisation has induced a lot of reforms in
the education sector of India.63 These reforms have been made so as to make education more
quality driven, increasing global competitiveness, training and skills equivalent to
international standards. But there may be social dominance of hegemonic countries.64

National Education Policy, 2020 was recently formed to bring about major changes in the
education sector. Part IV of the Policy in the chapter “Making it happen”. It underlines that
the policy also has the goal of regulating the commercial nature of education. This comes
under the provisions relating to financing of education for providing affordable and quality
education for all. The approach suggested is ‘light but tight’. It provides a managerial
approach that mandates disclosure of finances, procedures, course and programme offerings,
and educational outcomes; investment in public education; and a system for good governance
of all institutions, public and private. Similarly, more and more efforts should be taken to
explore for higher cost recovery mechanism without affecting the deserving section of
society.65

I. 2. -HISTORICAL DEVELOPMENT OF CONSUMER PROTECTION LAWS

Historical development of the consumer protection laws was majorly linked with the growth
of consumerism in India and as an action against the unfair trade practices prevalent in the
market. The laws regarding consumer protection were already present in several laws
historically including the Indian Penal Code, the Indian Contract Act, Sale of Goods Act,
Essential Commodities Act and the Trade and Merchandise Act. Until the passing of the

61
V Prakash, ‘Trends in Growth and Financing of Higher Education in India’ (2007) 42(31) Economic and
Political weekly. The author has made an empirical study with regards to the trends in the growth and financing
of the education system in India with primal focus on the higher education system. He is of the stern view that
though India has achieved a lot in terms of the increase in the number of educational instituitons in the country,
there has to be significant work to be done so as to increase the access to quality education to all sections of the
society. The privatisation of the educational institution shows the way towards the motive of profit in the sector
which ultimately results in decline in the quality of the education that is being imparted in the institutions.
62
S. Dubey, ‘Impact of Public Education Expenditure Across Different Levels on Higher Education Access
in India: A Panel Data Study’ (The Future of Higher Education in India, Springer Publication, 2019).
63
International trends in Higher education, 2016.
<https://www.ox.ac.uk/sites/files/oxford/trends%20in%20globalisation_WEB.pdf>.
64
J. Zajda,’ Globalisation and Education Reforms: Paradigms and Ideologies’ (2018) 19 Globalisation,
Comparative Education and Policy Research, Spring er Publication.
65
National Education Policy, 2020 para 26.7.
Monopolistic and Restrictive Trade Practices Act (MRTP Act) in 1969, there was no specific
legislation that intended to provide redressal against activities hampering consumer interests.

The presence of the historical formulations in this regard can be seen as follows-Manu
Smriti:- The social, political, and economic aspects of ancient society were the subject of
Manu Smriti. It emphasised ethical business practices and penalised those who were unfair to
consumers.66 Adulteration, defined as the combining of one item with another to produce
impurity, was included in its stipulated code of conduct.67 The king fixed a market price or a
sale price for all items. Every six months, all weights and measures were inspected, and the
findings of these examinations were maintained on file. It's remarkable that such effective
consumer protection mechanisms have emerged at such a young stage of settlement.

Kautilya’s Arthasastra:- The Arthshastra of Kautilya fully described the laws governing
weights and measures. Traders who were involved in adulteration of goods, such as cereals,
staple foods, salt and sugar, were recommended to face a penalty. The Arthashastra describes
the government's role in regulating trade and its responsibility to protect customers from
criminal activity.68 Kautilya was a staunch opponent of black marketing and unscrupulous
trade practises. Different sorts of cheating were subjected to harsh penalties. These penalties
could include the amputation of the cheater's hand. The Arthashastra also ensured that traders'
rights were maintained.

I.2.1- Basic objectives of the consumer protection laws

The laws before this had some scattered provisions to protect consumer interests. 69 The major
intent of the statute was to safeguard the commercial interests of the consumer by ensuring a
sense of competitiveness in the market and the control of anti-competitive behaviour in the
market. The marked lacunae of the Act was that it did not directly protect consumer interest
and aspired to do it by increasing competitiveness in the market. This led to the formation of
the Sachar committee on the basis of which the phrase “unfair trade practices” was included
in the ambit of the MRTP Act. The phrase included the acts relating to making of fraudulent
or misleading claims on the quality or the efficacy of the products or services or through any
66
A.R. Prasad, ‘ Historical evolution of Consumer Protection laws in India’ (2008) 11(3) Journal of Consumer
Texas Law 132- 136.
67
Ibid.
68
P.S. Mehta, ‘Economic regulations, competition, and consumer protection in ancient India’ (2018) 63(3) The
Antitrust bulletin 316-329.
69
D.P.S Verma, ‘ Developments in consumer protection in India’ (2002) 25(1) Journal of Consumer Policy 117-
123.
other means, offering of bargaining or bait prices, offering pseudo-gifts or prizes, supplying
unsafe and hazardous products and hoarding or destroying goods to revamp the prices of such
goods.70

On 15th March, 1962, John Fitzgerald Kennedy, the 35th President of the United States,
introduced the concept of consumer protection. In his remarks, he emphasised the need of
protecting the interests and rights of consumers.71 Kennedy also mentioned the four basic
consumer rights, which are the right to safety, right to be informed, right to be heard and right
to choose.72

There have been many regulations that have been made for preventing the supply of
substandard items, for profiteering of businesses and to protect consumers. But there have
been significantly less actions to this effect73 The law of demand and supply in economics
has a bearing on this. Indian market was a seller’s market till the 1980’s. 74 The reason was
increased demand and decreased supply. Rights of the consumer in such markets are barely
protected.

I.2.2- Provisions in the Indian Constitution relating to consumer rights

The right to choose is an important consumer right. This right was not available for the Indian
consumer for a long time due to the poor quality of service and unappealing terms of sale. 75
In the countries like Japan and Europe, with free market, the situation was much better for the
consumers.76 In the modern period, the Constitution of India provides certain effective
provisions that could relate to the consumer protection laws and rights of consumers in that
regard. Equality before the law and equal protection under the law are guaranteed by Article
14 of the constitution. As a result, manufacturers, producers, traders, sellers, and customers
all have an equal legal standing.77Article 39 comprises two provisions, (b) and (c), under
which the state is obligated to direct its policies in order to maintain the equitable distribution

70
P. Guruswamy & P. Manochitra, ‘Unfair trade Practice as a barrier to Consumer Protection Act in Coimbatore
District’ (2020) 12 (9) The International journal of analytical and experimental modal analysis 925-936.
71
Kennedy Achives <https://www.jfklibrary.org/asset-viewer/archives/JFKPOF/037/JFKPOF-037-028>.
72
K. Tonner, ‘From the Kennedy Message to Full Harmonising Consumer Law Directives: A Retrospect’
(2014)3 (1) Journal of European Economic Law and Regulation 693-707.
73
M. Rajnikanth, ‘ A Study on the evolution of Consumer Protection Act in India’ (2017) 6 (4) IJAEIM 133.
74
Ibid, Japan has recently developed its consumer protection laws in order to make a uniform code on the rights
and interests of consumer in this regard.
75
S. L. Rao, ‘India's rapidly changing consumer markets’ 35(4) Economic and Political Weekly 3570-3572.
76
A. Ghoshal, ‘ Consumer Protection in India- Past and Present’ (2010) 14(1) Int. J. C R 237-242.
77
M. Rizzi, ‘The Constitutional and Administrative Framework of India With a Focus on Consumer Protection’
(2016) DOI- https://dx.doi.org/10.2139/ssrn.2847042.
of ownership of the society's material resources. This allocation should be made in the public
interest. According to Article 43, the state must seek to build an economic structure or pass
legislation to ensure that all workers have a decent standard of living. These are some of the
connected provisions in the Constitution of India that speak about consumer rights and
consumer behaviour.

The new legislation enacted after Independence are the Prevention of Food Adulteration Act,
1954, Essential Commodities Act, 1955, Monopolistic Restrictive And Unfair Trade Practises
Act, 1969, Standard of Weights And Measures Act, 1976, Bureau of Indian Standards Act,
1986, Consumer Protection Act, 1986, Trade Marks Act, 1999 and Competition Act, 2002.

I.2.3- Analysis of Consumer Protection Act, 1986

The Consumer Protection Act, 1986 was passed to extend protection to the rights of the
consumers, for the establishment of consumer courts and to create other ancilliary agencies
for the purpose of resolving consumer interests.78 The major objective of the statute is to
improve consumer protection and to provide adequate and effective machinery for the
purpose of consumer disputes redressal. The Consumer Protection Act of 1983 was found to
be very inefficient in fulfilling these objectives. The Act was amended in 1993 to protect
some major consumer rights. The Act provided protection to the service consumers as well
which was not present in the preceding Act. The most significant adjustment was to
safeguard service consumers. It also aims to protect a consumer's rights from unfair trade
practises, such as those used by manufacturers and traders. 79

A consumer forum's goal is to provide relief to both parties while avoiding lengthy litigation.
Forum representatives arbitrate between the two parties and encourage compromise in an
informal adjudication process. Unless specifically exempted by the Union Government, the
Act applies to all goods and services and includes all enterprises, whether private, public, or
cooperative. This Act has created a system for consumers to raise complaints. These
complaints will subsequently be evaluated by consumer courts with special powers so that
defaulting suppliers can be punished and the consumer can receive reimbursement for the
hardships he or she has endured. The customer is no longer compelled to pay large court fees,

78
Ibid (n 42), the article tries to show the importance of consumer awareness and consumer education in
regulating the unfair trade practices and deficiency in services.
79
Showkat Hussain Shah, 'Consumer Interest Litigation under the Consumer Protection Act, 1986 in India: A
Critical Analysis' (2014) 3 Nirma U LJ 1.
which formerly prohibited consumers from addressing the courts. In comparison to traditional
courts, the formalities of court proceedings have been replaced with easy procedures,
allowing for faster redress of grievances.80 The Act's provisions are compensatory in
character.

Consumer Protection Act provides the rights of the consumers and the protections given to
them from fraudulent and other misleading acts. These rights allow consumers to make better
decisions in the marketplace and receive assistance with complaints.

1. The Right to a Safe Environment: Consumers have a right to be protected

against products and services that are harmful to their health, lives, or property.
Quality, Quantity, Reliability, and Performance should be guaranteed in the
items and services given by sellers.

2. Right to Obtain Information: This is an Act that establishes the practical

management of the Right to Obtain Information for citizens to obtain data
under the control of public jurisdictions in order to develop clarity and
responsibility in the operations of all public authorities, as well as the
establishment of a central information Commission and State Information.

3. Right to Choose: According to the Consumer Protection Act, 1986, "there is

the right to be assured, wherever possible, of having access to a variety of
goods and services at competitive prices"81

4. Right to be heard: This right states that the vendor must understand the
customer's grievances. It also gives them the opportunity to be heard prior to
the sessions and consumer panels. One of the rights guaranteed to customers
by the Consumer Protection Act is the right to be heard.

5. Right to Seek Remedy: The right to seek redress for illicit trading systems or
unfair consumer exploitation. It also includes the right to a fair resolution of a
consumer's justifiable concerns.

80
David Harland, ‘Implementing the Principles of United Nations Guidelines for Consumer Protection' (1991)
33 JJLJ 1898.
81
C. Venkatachalam vs Ajitkumar C. Shah & Ors (CIVIL APPEAL NO.868 OF 2003).
I.2.4. - Modifications under the amendment Act of 1993

The modified 1993 Act incorporates numerous measures that benefit the general public,
making it more efficient and useful. The provisions of the Act aim to improve the speed with
which complaints are handled, empower redressal agencies by giving them additional
powers, streamline procedures, and expand the scope of the Act to make it a little more
functional and efficient.

A number of measures have been incorporated to allow consumer courts to process

complaints more quickly. The Act establishes circuit benches, as well as the recruitment of
additional members to the National and State Commissions and the holding of circuit
benches. Admission of complaints, the issuance of notices, and the disposition of complaints
all have time limits. The monetary limits for cases handled by consumer courts at various
levels have been revised, with the District Forum limit being increased from Rs. 5 lakhs to
Rs. 20 lakhs, the State Commission limit being increased from Rs. 20 lakhs to Rs one crore,
and the National Commission limit being increased from above Rs. 20 lakhs to above Rs. one
crore.82

The Act also gives consumer courts First Class Judicial Magistrate authority to punish
anyone who do not follow the court's directives. The court-ordered compensation can now be
retrieved as land revenue arrears through a certificate case. Consumer courts can grant
interim decisions under the Act, allowing the complaint speedy redress in worthy
circumstances. If the complainant/opposite party dies, the revised Act enables for a legal heir
to be substituted in order to speed the procedure.

I.2.5.- Examining the Consumer Protection Act , 2019

The Consumer Protection Act, 2019 came into force on 20th July, 2020. This statute was
made to make the Indian consumer laws in conformity with the global standards of legislation
that provided for more power to the executive officers under the consumer protection laws
and also provisions relating to e-commerce. The Supreme Court of India, in Neena Aneja &
Anr. v. Jai Prakash Associates Ltd83., examined and clarified the implications of the
Consumer Protection Act, 2019 ("2019 Act") on pending complaints brought under the

82
Consumer Protection Act S. 28-35.
83
Civil Appeal Nos. 3766-3767 of 2020.
Consumer Protection Act, 1986 ("1986 Act") consumer fora. The Court has discussed and
analysed (i) a wide range of judicial rulings on the effect of the amendments in the consumer
protection laws on the ongoing proceedings; (ii) the objectives and intention of the legislature
in terms of India's consumer laws, particularly the provisions contained in the 2019 Act; and
(iii) the issue of pecuniary jurisdiction of the National Commission, State Commission and
the District Consumer forums .

Certain drawbacks were met under the old Act due to which the said Act had to be revised to
provide certain benefits to the consumer which includes an alternative approach or solution to
the concern under law, the 1986 Act prohibited them from approaching the Consumer Forum.
It was a pity that a consumer could only come to the Forum if he had suffered a loss or harm
as a result of an unfair commercial conduct or a service defect. The Act dealt concerned
dangerous or hazardous commodities, but it did not hold the seller of such goods liable. It
also never went into detail on product safety requirements or permissible amounts of
hazardous compounds.84

With the development of e-commerce as an alternative means of conducting business,

revisions to existing legislation were critical to protect consumer rights under these newer
forms of business. Electronic and technology items, as well as modern business practises,
were never addressed in the previous Act. As a result, in order to keep up with the expanding
trend of tech and technology-driven services, a shift was required. Because the ordinary
consumer's purchasing power has increased, it was critical that the Forums be granted
expanded monetary jurisdiction to avoid overcrowding and outstanding cases in other courts.
The 1986 Act never gave the Forums the power to issue interim injunctions, which meant that
they couldn't do anything harmful to the consumer's interests while the case was pending, and
they couldn't handle cases on their own.

The 2019 Act, which was notified on July 15, 2020 and went into force on July 20, 2020,
instituted consumer councils to resolve consumer grievances and related issues. This Act was
enacted primarily to address a backlog of consumer complaints that had been pending in
Consumer Forums and Courts around the country. The Consumer Disputes Redress
Commission's jurisdiction was outlined by the Act. The National CDRC now has authority
over complaints worth far beyond Rs 10 crore, whereas the State CDRC now has jurisdiction

84
Ankur Saha & Ram Khanna Sr., 'Evolution of Consumer Courts in India: The Consumers Protection Act 2019
and Emerging Themes of Consumer Jurisprudence' (2021) 9 IJCLP 115.
over claims worth more than Rs 1 crore but still less than Rs 10 crore. This gave the District
CDRC the authority to hear complaints involving goods or services worth up to Rs 1 crore.

The following were the elements of the new Act:

1. Initiation of E-filing: The amended Act contains provisions that provide for electronic
complaints, or through the E-filing process. Video-conferencing can be used to
conduct hearings and gather evidence, making the process more efficient and
decreasing consumer frustration. With the amended Act, the provisions relating to
territorial jurisdiction have been totally negated because the consumer can now
register complaint from any place.

2. Inclusion of Unfair Trade Policies: The 2019 Act includes a definition of unfair trade
practises and has developed a new right i.e. the right to consumer privacy for
confidential information. Any disclosure must be done in compliance with any other
applicable laws.

3. The procedure for submitting an appeal has changed: instead of the previous
maximum amount of Rs. 25,000/-, the opposing party must now pay 50% of the claim
amount with the District Commission while filing an appeal with the State Consumer
Disputes Redressal Commission.

4. E-commerce transactions are covered for resolution under direct sales under the 2019
Act.

5. Mediation as an ADR: Mediation has been included as an alternative mode of dispute

settlement under the 2019 Act.

6. Increased Penalties: The CCPA now provides for a penalty of up to Rs. 1,000,000 for
a producer or endorser who makes a misleading or deceptive commercial, as well as a
sentence of up to 2 years in prison. A repeat offender faces a fine of Rs. 5,000,000
and a sentence of up to 5 (five) years in prison.

7. The following are the main differences between the Act of 1986 and the Act of 2019:
  The CPA 1986 had a smaller scope, covering only six types of unfair trade practises /
deceptive practises85, but the CPA 2019 has a larger reach, covering more than three
new unfair trade practises.86

 Product liability was not included in CPA 1986, but it is now included in the current
statute.87

 Unfair Contacts were not addressed in CPA 1986, but they are addressed in the
current act.88

 In the previous act, there were no regulations for E-commerce or direct selling, but
CPA 2019 includes specific provisions for both.89

 In the 1986 legislation, the role of Central Protection Councils was to promote and
safeguard consumer rights, and in the 2019 act, the mission of CPCs is to operate as
advisory committees for protection of consumer rights.90

85
Consumer Protection Act, 1986 S. 2(r).
86
Ibid (n 50) S. 2(47).
87
Ibid, S. 2(6).
88
Ibid, S. 2(46).
89
Ibid, S. 2(16).
90
Ibid, Chapter II.
 CHAPTER- II

II.- BRINGING EDUCTION WITHIN THE PURVIEW OF THE CONSUMER

PROTECTION LAWS

II.1.-DEFINING CONSUMER AND SERVICES

The debate regarding student consumerism has been substantially linked with the question of
remedies available for the students. Approaching the consumer courts by a student against
any unfair trade practices or deficiency in services against the educational institutions is
highly debated. The first round of investigation regarding these consumer protection forums
is the applicability of the relevant consumer protection law. To determine the applicability,
the student who has paid fees and gotten admission in the educational institution has to be
equated with consumers under the consumer protection laws. As a legal corollary,
educational activities partaken in the institutions has to be equated with services as mentioned
in the consumer protection laws. If these criteria are fulfilled, then in any case of complaint
against the educational institutions, the student can directly approach the consumer forum,
qua the presence of territorial and pecuniary jurisdiction, for reliefs under the relevant laws.

Manu Solanki v. Vianayak Mission University91 triggered this very important question of
approaching the consumer fora for adequate reliefs. But this was not the very first time when
the consumer fora or the Supreme Court of India or the respective High Courts faced such a
dispute. In number of cases, the students approached the fora against certain practices
alleging deficiency of services or unfair trade practices within the meaning of the Act, and
there were many different interpretations have led to a divergence of judgments.

The governing laws relating to the consumer protection were first enforced in 1986. These
laws were repealed in 2019 when the latest Act was enacted. The definition of the relevant
terms of this study is to be viewed. Section 2(a) (d) of the Consumer Protection Act, 1986
defined “consumer”. Consumer is defined as a person who-

(I) buys any goods for consideration that has been either paid, or partly paid and partly
promised or bought under a system of deferred payment and includes the user of such goods
when such use is made with the approval of first mentioned person. It is provided that the

91
2020 SCC OnLine NCDRC 7.
definition does not include the person who has obtained the goods for resale or for any
commercial purpose.

(ii) hires or avails of any services for a consideration which has been paid, promised, partly
paid and partly promised or under any system of deferred payment . The beneficiaries of the
services are also included within the definition of consumer when the beneficiaries use the
services with the approval of the first mentioned person. The definition excludes any person
who makes use of such services for any commercial purpose.

The definition of the word consumer as provided under the Act of 1986 provided an
explanation where the meaning of the phrase ‘commercial purpose’ was given. The
explanation provides that the definition would not include any person who has bought the
goods or which is used by him/her exclusively for the purpose of attaining self-
employment.92 This means that if the goods or services is used by the consumer for any
commercial purpose then it will remove the person from the ambit of the consumer under the
provision.

In the 2019 Act that repealed the earlier Act, the definition of consumer is the same except
for the fact that the explanation has been amended in respect of the e-commerce transactions.
The amended explanation now includes offline or online transaction through electronic
means or by teleshopping or multi-level marketing93.

The Oxford Concise Dictionary defines consumer “as a person who consumes, especially one
who uses a product; a purchaser of product with a relatively long useful life”. 94 Further
Black’s Law Dictionary has defined consumer as “one who consumes, which includes
individuals who purchase, use, maintain, and dispose of products and services”95. The only
difference in the definition is that, services have not been used in it whereas in the case of the
2nd one, “services” is used in its ambit. Consumer in this regard needs to be seen that the
definition of consumer, goods and services are used in the nature of commercial and trade-
oriented nature only.96 In the case of International Airports Authority of India v. Solidaire

92
Consumer Protection Act, 1986 expl. to s.2(a) (d).
93
Consumer Protection Act, 2019 expl. b to s. 2(a) (d).
94
Concise Oxford Dictionary (8th ed. Oxford Publications 1990).
95
Black’s Law Dictionary ( 11th ed. Thompson Reuters 2019).
96
J.N. Barowlia, ‘ Commentary on the Consumer Protection Act’ (7 th ed. Lexis Nexis 2019).
India Ltd97., the National Commission was of the view that a person is a consumer who hires
or avails of any service rendered by the opposite party for consideration

In the case of Punjab University v. Unit Trust of India98, the Supreme Court of India was of
the view that so as to be a consumer, a person has to hire or avail service for consideration
but such hiring or availing shall not be for the purpose of commercial purpose unless the
commercial purpose is for the earning of livelihood. This brings an exception within the
exception. It is provided that the words ‘commercial purpose’ must be given a restrictive
meaning which is precise and has to be differentiated from activity and production that is
commercial in nature. It is also provided that the usage must be logical and equitable so as to
avoid any sort of anomalies or inconsistencies in the interpretation of the provisions. There
are certain tests99 which have to be applied to determine whether or not there is a commercial
purpose or not,

(a) The goods are in the nature of transfer and are not for immediate consumption, i.e., resale;

(b) There should be a direct nexus between the purchase of goods and the profit or loss which
is derived from such purchase. This is not present when the goods or services are used for the
purpose of converting to other goods or services. There is no direct nexus between the goods
purchased and the goods sold after this conversion;

(c) There is nexus of form of kind between the goods purchased and the goods sold. Such a
direct nexus of form and kind ceases when the goods undergo transformation or conversion.

It is an accepted proposition that when a service or good is consumed for a personal

livelihood it is generally differed from the concept of the consumer under the consumer
protection laws.100

The definition of the term “services” has been given under the 1986 Act. It includes service
of any description which is given to potential users and includesthe provision of facilities in
connection with banking, financing, insurance, transport, processing, supply of electrical or
other energy, telecom, boarding or lodging or both, housing construction, entertainment,
amusement or the purveying of news or other information. However, it does not include

97
2015 SCC OnLine NCDRC 2715.
98
AIR 2014 SC 3670.
99
Ibid (n 6).
100
Synco Textiles Pvt. Ltd. v Greaves Cotton and Company Ltd I (1991) CPJ 499 (504, 507-508) (NC).
services that is rendered free of charge or under any contract of personal charge. 101 The term
has been defined in a broader sense under the Act. This can be seen from the use of ‘any
description’. This means that service of any description can be made to be included within the
ambit. The only thing that is provided is that the services are made for the potential users.

The meaning of service has been provided in a Supreme Court Judgment as, “The term
‘service’ may mean any benefit or any act resulting in promoting interest or happiness.” 102. it
may be either contractual, professional, public or statutory. The definition of service is very
wide. The inclusion of service depends on the context in which it is used in an enactment.
There are many enactments that have defined service.103The definition then goes on to
provide an inclusive list of what could be considered as services. The last part of the section
provides that the exception to this is the services that are rendered free of charge and the
services that are provided by personal diligence. This means that if any service is provided
free of charge or any personal service is provided then such is exempted from the purview of
service and the provisions of the Act in relation to such services shall not apply. In the case of
State of Orissa v. Divisional Manager, LIC104, the Supreme Court of India was of the view
that the ambit of the word service used under the Act has been widened by the use of the
word ‘of any description’. This would make it include payment of interest on overdrafts;
lending rate, wharfage, demurrage etc. and these would all come under the purview of the
Consumer Protection Act, 1986.

The word service may also have a variety of meaning that can be attributed to it. It may mean
any act or benefit resulting in the causation of the happiness of the person who is utilising it.
Further it also includes contractual, professional, public, domestic, legal, statutory etc.105In
the case of Lucknow Development Authority v. M.K. Gupta106, the Supreme Court of India
was of the view that the test that is supported for knowing the ambit of the consumer
protection laws on service is based on objective criteria. The criteria are that a person has to
see objectively if the nature of the duty or the functions is in the nature of service or
facility.107 The meaning of service under this Act has been clearly set out in a number of

101
Ibid.
102
AIR 1994 SC 787.
103
Income-tax Act (43 of 1961), S. 28(va), Expln. (ii), Foreign Exchange Management Act (42 of 1999), S.
2(zb) and Trademarks Act (47 of 1999), S. 2(1)(3) and Competition Act, 2002 (12 of 2003), S. 2(u).
104
1996 SCALE (3)609.
105
A. Singh & H. Kaur, ‘ Textbook on Consumer Protection Act’ (4 th ed. Lexis Nexis 2020).
106
(1993) 4 SCALE 370.
107
Ibid (n 6).
cases as well. The person who makes use of a service is called as hirer of service. The words
“hirer of service” has not been defined in the Act but there have been a lot of cases that have
tried to define the ambit of the word. There are certain essential conditions of the hirer of
service. “They are as follows-

1. Services must have been hired or availed for which consideration must have been paid
or promised to be paid or partly paid and partly promised to be paid in future.

2. If there is any beneficiary of these services, he must have the approval for use of such
services of the person who hired or availed of such services actually.

3. Services must not have been hired for any commercial purposes”108

There have been a number of cases through which the ambit of the term service has been
widening. There is a list provided under the act as well that includes banking, financing,
insurance, transport, processing, supply of electrical or other energy, telecom, boarding or
lodging or both, housing construction, entertainment, amusement or the purveying of news or
other information. But this list is not exhaustive. There are other inclusions also that have not
been listed in the provision. In the case of Indian Medical Association v. V.P. Shantha109
where the Supreme Court of India was of the view that medical services whether given free
of cost or through consideration are considered under the purview of the consumer protection
laws. This was a landmark case in which the court tried to further extend the ambit of the
provisions beyond the list of services provided under the Act.

Further there have been cases where certain other activities have also been included under the
Act.110 The definition of service had also gone significant changes by the insertion of the term
“availing” along with hiring that also bought several activities under the scope of the Act.
This amendment also remained intact in the Act of 2019.111 In the case of S.P. Goyal v.
Collector of Stamps, Delhi112 the Supreme Court of India was of the view that a perusal of the
definition would indicate that services includes the services provided thereunder and the
excluded services thereunder. The services which are excluded from the gamut are
service which are provided free of charge or under a contract of personal services.

108
Ibid (n 13) para 1.4.7.
109
AIR 1996 SC 550.
110
1996 SCC (1) 573.
111
A. Kaur, ‘ Consumer Protection Laws and medical services’ (1996) 38 JILI.
112
(1996) SCC 573.
In this regard it is pertinent to note that the broad meaning attributed to the word service is
due to the fact that it is a social welfare legislation and more and more people are to be
included as beneficiaries of the legislation.113 This was observed by the Supreme Court of
India in the case of Lucknow Development Authority v. M.K. Gupta114.

II.2.- SERVICES UNDER INTERNATIONAL LAWS

Borderless supply of services has been the prime factor of the international laws relating to
commercial relations.115 The ambit of services has been increasing with the signing of the
agreement by inclusion of activities ranging from telecommunication, transport, to health and
space because of the safe deduction that the word services includes every service that is not
provided gratuitously.116 The Treaty on the functioning of the European Union defines
services as services within the meaning of treaties when such services are provided for
remuneration and they are in relation to the free movement of goods, capital and persons 117.
The definition also highlights the requirement of remuneration for bringing the activity under
the ambit of service.

II.3.- DIVERGENT APPROACHES

The conflict of decisions as regards the inclusion of the educational institutions within the
purview of the consumer protection laws is very thrifty. There have been several instances
where the National Commission has allowed education within the ambit of the protection of
consumer laws and sometimes it has not. It is thus essential to carefully scrutinise the
decisions in this light.

The Supreme Court of India had the opportunity to decide on several cases to answer the
ambit of the term services used in the consumer protection laws to include education within
its ambit. There have been a wide variety of activities that are conducted by the educational
institution and cases pertaining to them have been heard by the Supreme Court. The
judgments of the Supreme Court have been arranged in such a manner that the related
activities are closely enlisted.
113
D.N. Saraf, ‘ Consumer Protection Laws’ ( A Survey of Indian Law).
114
Ibid (n 106).
115
Borchert, I., Gootiiz, B., & Mattoo, A. (2012). Policy barriers to international trade in services: evidence
from a new database: The World Bank.
116
Pooja Tiwari, 'Scope of Government Authority Exception under Article 1 (3) (B) of GATS' (2018) 12
NUALS LJ 133.
117
Art. 1(1).
SUPREME COURT JUDGMENTS-

1. BIHAR SCHOOL EXAMINATION BOARD v. SURESH PRASAD SINHA118

The case pertained to the fact that the ward of the complainant had to lose one year on the
account that there was a deficiency of service on the part of the Respondent educational
institution. The case was contested on the primary issue as to whether the complaint was
admissible or not. This was made in the context that in order to take the remedies under the
consumer protection laws, the complainant should be a consumer. In this case the primary
question before consideration was that if conducting examination and all the ancillary
activities come under the purview of the consumer protection laws or not. The Supreme
Court was of the view that conduction of the examination, evaluation of answer scripts,
declaring results and issuing certificates etc. do not come under the purview of the consumer
protection laws because these are the sovereign functions of the educational institutions. Thus
when a statutory body conducts an examination, it does not offer any services for
consideration. It provides that this is the statutory function of the statutory body. The court
was of the stern view that even if consideration is taken for such activities, they do not come
under the purview of the consumer protection laws and the beneficiaries of the activities are
not consumers.

The brief facts of the case were that the complainant was a candidate for the examination to
be conducted by the Bihar School Examination Board. But the Board allotted the same role
number to the complainant and another candidate. This was notified to the board and before
the board could do the needful, the examination were conducted and the complainant had to
give the exam on the next year due to which there was a year gap in getting the degree from
the board. The respondent went on to file the complaint in the District Consumer forum
which was of the opinion that the complaint was not maintainable and that the statutory body
was not a service provider under the purview of the consumer protection laws. The major
issue was thus whether the examination conducting bodies are service providers.

The Court went into a number of cases where the ambit of the word service was interpreted in
the context of the consumer protection laws. The court has categorically mentioned in this
case that there have been several divergent opinions of the National Commission on this

118
Bihar Education Board (n 31).
issue.119 The Court in this case was dealing with a categorical issue whether a statutory body
conducting examination comes under purview of the Consumer Protection Act, 1986 or not?
To determine the answer to this question, the Court had to first define and analyse the
meaning of the word services and the ambit of the word services and to see if the conduction
of examinations and the associated activities did come under the purview of the Act. The
Court has tried to define that the examination conduction is a statutory non-commercial
function. The court then went on to define as to why this function is so defined. The Court
was of the considered view that whenever a student sits in an exam, it is not that he is paying
the university to offer him any service. It is just that a student has completed a course and that
he requests the Board to evaluate him as to the veracity of his knowledge on the course. The
Court further held that fees paid by the student are not a consideration for the availment of
the services of the conduction of examination and the publication of results.

The ambit of the commercial services has been scrutinised in this case. It says that
commercial services used in the Act are made to cover the whole of the ambit of commercial
transactions including the professional and quasi-commercial activities. The only thing that
they fail to include within the ambit is the statutory functions because such functions cannot
be to any extent covered under the ambit of the Act.

This led to the Court providing the judgment that the services provided by the Bihar
Education Board120 were not “services” under the ambit of the consumer protection laws and
so the appellant successfully contested the maintainability of the issue.

2. MAHARSHI DAYANAND UNIVERSITY v. SURJEET KAUR121

This case is also based on the issue as to whether or not the conducting of examination comes
under the purview of the consumer protection laws vide the ambit of service as defined under
Section 2 of the Consumer Protection Act, 1986. In relation to this issue, the Supreme Court
of India had also cited the case of Bihar Education Board v. Suresh Prasad Sinha122 case.

The brief facts of the case were that the respondents admittedly pursued two courses
simultaneously which was not allowed as per the University guidelines. On the detection of
this apparent mischief, the degree of B. Ed was cancelled and the respondent approached the

120
Bihar Education Board(n 31).
121
Civil Appeal No. 6807 of 2008.
122
Bihar Education Board (n 31).
consumer fora for appropriate relief. The National Commission was of the view that the
candidate could approach the commission and as a natural corollary the complaint was
maintainable. The appellants approached the Supreme Court of India saying that the forum
did not have adequate jurisdiction on the ground that the conducting of examination by the
University did not amount to services and hence the forum had no appropriate jurisdiction.

The contention of the appellant in this regard was that after the decision of this court in the
case of the Bihar Education Board v. Suresh Prasad Sinha123, the issue is no longer res
integra. There has been an end to the conflicting opinion of the National Commission after
the judgment that came to the effect that when the university conducts an examination or any
other activities that are related to the conduction of examination, the ambit of the consumer
courts is not attracted.

The contention of the respondent was that the decision of the appellant university was in
contravention of the principles of natural justice.

The Apex Court in this case was of the opinion that when a statutory body conducts
examination, then the performance of such does not come under the purview of the consumer
protection laws. The respondent did not conform to the privilege of appearing in the
examinations though she was not entitled to the benefits of the notification created by the
appellant educational institutions. The Court very categorically held that the respondent was
not a consumer and the appellant was not providing any services. The Court was of the view
that the case of Bihar Education Board v. Suresh Prasad Sinha124 has clearly laid down the
law while differentiating between the statutory and the non-statutory functions of the
educational institutions. The observations made by the Court in the case of Bangalore Water
Supply that taken in ground by the respondent do not hold any ground post the Bihar
Education Board v. Suresh Prasad Sinha125. The giving of the consideration only would not
drive the educational institution within the premise of the consumer protection laws. There
are other circumstances that show whether or not a service is in the nature of commercial
function or not. The conferring of the degree after the passing of the examinations forms the
statutory functions of the educational institution. Even if some fees are paid in the form of
examination fees, or certificate fees or any miscellaneous fees that would not come under the
purview of the service. Those fees are in the nature of the cost of conducting the examination

123
Ibid.
124
Ibid.
125
Ibid.
and not in the nature that would entail the service provider to provide any kind of service to
the consumer.

The Court held that the consumer forums do not have the power to issue direction that is
contrary to law or cannot contravene the statutory provisions in the consumer protection law.
In the present case, the forums didn’t have the preliminary jurisdiction to entertain the
complaint. But the forums still admitted and heard the complaints in direct contravention of
the laws laid down by the Court in the aforementioned case.

3. BUDDHIST DENTAL MISSION V. BHUPRSH KHURANA126

In the present case, the Supreme Court of India dealt with the issue that the appellant
educational institution did not have the requisite affiliation and was not recognised by the
Dental Council of India and it admitted the respondent into the course. The issue before the
Court was whether the appellant was liable for deficiency of services. The preliminary issue
in this case was, whether the appellant was liable under the consumer protection laws for the
deficiency of service.

The Court was of the considered view that without any proper affiliation or the requisite
sanctions by the Board, the appellant has started the educational institution and had included
the students in the course. This amounted to deficiency of service.

The preliminary issue of applicability of the Act was answered by the Court on the ground
that the Respondent was admitted to the course of the BDS for receiving education for
consideration by the Appellant college which was neither affiliated nor recognised for
imparting education. Thus the Court was of the view that the case falls definition of
“deficiency of services” as mentioned under the Consumer Protection Act.

4. SECRETARY, BOARD OF SECONDARY EDUCATION, ORISSA V. SANTOSH

KUMAR SAHOO127

The Supreme Court in this case had to decide whether or not the correction of date of birth in
the matriculation certificate amounted to services under the consumer protection laws. The

126
2009 (2) Scale 685.
127
Civil Appeal No. 4967 OF 2010 (Arising out of SLP(C) No. 13872 of 2009).
facts of the case were that the respondent had appeared in the supplementary education
conducted by the appellant board and the certificate of the examination was issued which had
the wrong date in it. An inordinate delay of 12 years was made by the appellant in processing
the request to change the date of birth. The respondent made several representations to the
board on this ground. But there was no reply from the board on this issue. The respondent
had submitted the original copy to the board as per the assertion of the board. The respondent
then filed a complaint under Section 12 of the Consumer Protection Act, 1986 alleging that
there was a deficiency in providing services on the part of the Board for the failure to correct
the information even after so much time and many representations.

The Court was of the considered opinion that the consumer court did have the jurisdiction to
entertain the complaint but there was no deficiency in services in as much as the respondent
itself did not provide the necessary details that would cause the petitioner to correct the mark
sheet and the board certificate.

5. P.T. KOSHY v. ELLEN CHARITABLE TRUST128

In this case on the basis of the judgment of the Supreme Court in the case of Mahrishi
Dayanand University v. Surjeet Kaur129, has held that education is not a commodity. There is
no service that the educational institutions are providing and in the absence of that their work
does not come under the purview of the consumer protection laws.

This civil appeal was in the form of a special leave petition and the Supreme Court on the
basis of the case aforementioned did not incline itself to grant leave to file the appeal because
it was of the considered opinion that the law in regards to the inclusion was clear

6. P. SHREENIVASULU v. P.J. ALEXANDER130

In this case, there was a dispute regarding the deficiency of service by the college that was
managed by the respondent. The Court in the order that was directed to the State commission
to take cognizance of the offence also held that the educational institution would come under
the purview of the consumer protection laws and the Madras High Court judgment that was
cited by the respondent was not preferred.

128
MANU/SC/1324/2012.
129
Maharshi Dayanand University (n 121).
130
Civil Appeal Nos.7003-7004 OF 2015 (Special Leave to Appeal (C) No(s). 2523-2524/2003).
The Court held that the National Commission in the present case had categorically relied on
the judgment of the Madras High Court and failed to pay reverence to the judgment of the
Supreme Court in the case of Buddhist Dental Mission v. Bhupesh Khurana131.

7. RANCHI UNIVERSITY v. SNEH KUMAR132

In the present case, there was an allegation of the deficiency in service in favour of the
appellant educational institution. The respondent passed his Masters in the appellant
university. But appellant failed to issue the requisite certificates due to which the respondent
could not sit for interviews. There was an allegation of deficiency of service. The Court on
the preliminary issue held that the respondent was a consumer under the provisions of the
consumer protection laws but the award of compensation was set aside on the ground that the
respondent could not show that he was a post graduate from the appellant university.

NATIONAL COMMISSION JUDGMENTS

The judgments of the Supreme Court of India are in sharp contrast with the judgments of the
National Commission dealing with the issue of inclusion of the educational institution within
the ambit of the consumer protection laws in India. The judgments of the National
Commission have a binding precedent on the other subordinate consumer courts and it is
pertinent to analyse the judgment of the National Commission to study the conflicting
decisions. A number of activities were scrutinised in a wide of range of cases to note the
jurisdiction of the Commission. The arrangement of the following decisions have been made
in a way so as to club decisions rendered in respect of similar or same educational activities
for the purpose of drawing nexus between them.

1. MANU SOLNAKI v. VINAYAK MISSION UNIVERSITY133

This chapter forms the trigger of the decision of the debate around the inclusion of
educational activities under the purview of the consumer protection Act. This judgment has
been challenged in the Supreme Court of India vide a SLP and the Court has admitted the
matter and decided that it will give a finalised notion as to whether or not the educational
institutions can be made to be scrutinised under the purview of the consumer protection laws
or not.

131
Buddhist Dental Mission (n 126).
132
Civil Appeal No(s).3163 of 2011 (Arising out of SLP(C) No.3374 of 2008).
133
I ( 2020 ) CPJ 210 ( NC ).
In the present case, the complainants alleged that the opposite parties have indulged in the
deficiency of services and unfair trade practices by inducing the complainants that the
educational institution had the requisite permissions and approvals and the complainant
would get a degree that would recognised by the Government of India and the Medical
Council of India and this would help them to practice medicine in the country. The
complainants were assured that they would be given a foreign degree and after passing the
requisite tests conducted by the MCI, they would be eligible to practice medicine,

In the present case, the issue which was first and foremost to be decided was as to whether
the educational institutions would come under the purview of the consumer protection laws.
As it is an accepted position of law, before going into the merits of the case, there should be a
decision as to the jurisdiction of the forum that is going to decide the case. The opposite
parties relied on the judgment of the Supreme Court of India in the case of P.T. Koshy v.
Ellen Charitable trust and ors134. which stated that the education is not a commodity or a
good and the educational institutions are not rendering any services when they provide
education. In another judgment of the Apex Court in the case of P. Shreenivasulu v. P.J.
Alexander135, the court held that the jurisdiction of the Court does not extend to ‘all disputes’
regarding any activity that is associated with the educational institutions. The usage of the
terms forms the basis of the discussion here because education is a holistic approach that
concerns the all round development of the child or student. It is not limited to the impartment
of education only.

The Court then went on define the meaning of the words ‘consumer’, ‘deficiency’, ‘service’,
‘student’ and ‘education’. The meaning of these words was given so that there could be made
a nexus between their usages and then to pragmatically extend them into the ambit of each
other. The Commission took into account the case of Bihar Examination Board v. Suresh
Prasad Sinha136 and tried to exclude conducting examination and the related activities from
the purview of the consumer protection laws. It was asserted that the board is a statutory
authority and statutory functions of the board amounted to the conduction of examination and
any related services. It was negated that the consideration that was paid for the purpose of
examination converted the statutory function into that of the commercial function. The
commission in this case had held that mere payment of the examination fees would not take

134
P.T. Koshy (n 123).
135
P. Shreenivasulu (n 125).
136
Bihar Education Board (n 31).
the functions into that of the commercial functions. The purpose of the examination is to see
what a student has imbibed and subject himself/herself to the scrutiny of the educational
institution so that the degree can be conferred to the student.

To counter this, the complainant took the reliance on the case of Punjab Urban Planning and
Development Authority v. Vidya Chetal137, where it was held that the, “determination of the
dispute concerning authority of the imposition of statutory dues arising out of a deficiency in
service can be undertaken by the Consumer Fora as per the provisions of the Act.”

In the further case of Maharshi Dayanand University v. Surjeet Kaur138, the Supreme court of
India viewed the position relating to the jurisdiction of the consumer courts in a detailed way.
But the commission was of the view that the Court in the case of Maharshi Dayanand
139
University v. Surjeet Kaur was swayed by the decision of the Court in the case of
140
Bangalore Water Supply Board v. A. Rajappa wherein the Court had tried to provide
jurisdiction in all matters relating to educational institutions to the consumer courts.

The commission categorically stated that there was a conflict of the decision of the courts in
this matter. The Commission then went on to dissect the judgment of the Supreme Court in
the case of Anupama College of Engineering v. Gulshan Kumar and Anr141. in which the
Court set aside the order of the consumer forum by which relief was granted holding that
there was a consistent opinion of the judiciary that education was not covered by the
consumer protection laws.

The Court also looked at the educational institution from the perspective of vocational
courses and was of the view that vocational courses offered by the educational institutions
would not come under the provisions of the Act. The Court held that when institutions render
education including vocational courses and other activities before or after the process of
admission is complete, they do not come under the purview of the consumer protection Act.
These activities include imparting pedagogical teaching, tours, picnics, extra-curricular
activities.142

137
Revision Petition No.889 of 2013 with I.A.No.1609 of 2013.
138
Maharshi Dayanand (n 121).
139
Ibid.
140
AIR 1978 SC 969.
141
Civil Appeal No. 17802 of 2017( Special Leave to Appeal (C) No(s). 17679/2017).
142
Manu Solanki (n 91) para 51.
On the context of coaching institutes being governed under the provision of the consumer
protection laws, the Commission was of the considered view that coaching classes do not
come within the ambit of Consumer Protection Act. The Commission placed reliance on the
143
Supreme Court judgment in the case of P.A. Inamdar v. State of Maharastra where it was
held that coaching centres cannot be equated with schools or colleges because they do not
confer any degree on the students and they do not conduct examination as per the rules of a
university. Therefore they do not strictly fall within the ambit of education institutions. The
Commission refrained from making any observation on the coaching institutions indulging in
role learning.144

So the Commission was of the view that coaching institutes were governed under the purview
of the Act but the schools, colleges or universities that are affiliated or provided under any
statute forms the position under the consumer protection laws.

The judgment of the commission has been followed by a number of other benches of the
National Commission as well but this judgment has failed to attribute a differential on the
basis of which the associated activities would come under the purview of the consumer
protection laws or not.

2. SHIVAM MALHOTRA V. MANAGING DIRECTOR, OXL SCHOOL OF

MULTIMEDIA AND ORS.145

In the present case, the facts provide that the complainant had taken admission in the course
of B.Sc in Multimedia which was offered by the respondent institute. The institute did not
conduct any annual examinations and on pressure from the students, a certificate of diploma
in Multimedia was printed an given to the students. Against this alleged deficiency of
services, the complainant approached the district commission and through the process of
Court, filed this present appeal against the decision of the state commission whereby the
commission refused to grant the relief to the complainant on the ground that the petitioner
was not a consumer and the educational institute was not providing any services that were to
be availed by the students. The other issue in this case was whether or not the coaching
institutes would come under the purview of the service provider under the consumer
protection laws.

143
Civil Appeal no. 5041 of 2005 (SC).
144
Ibid para 52.
145
MANU/CF/0148/2022.
Against this the complainant approached the forum on the preliminary issue of the
maintainability of the complaint and complained against the deficiency of services that was
alleged on the part of the respondents.

On the preliminary issue of the maintainability of the complainant under the Consume
Protection Act, the commission was of the view that it was bound by the decision of this
commission sitting through a larger bench in the case of Manu Solanki v. Vinayak Mission
University146.

The contention of the respondents in this case, was that a coaching institute imparting
knowledge is not different than an educational institution affiliated to any board imparting the
same knowledge and as per the provision of a statute. If one of them is not taken to be under
the provisions of the consumer protection laws, then the other should also not be taken under
the same laws only. The other contention was that the coaching institute has not been
recognised in the context of the NCTE, such shall not come under the purview of the
Consumer Protection Act, 1986. According to this what the defect and deficiency in services
that make impartment of Education come under the purview of the Consumer Protection Act
1956.

The other thing was that the educational activities often have connection to certain co-
curricular activity. In Manu Solanki147, “The Commission was of the considered opinion that
the incidental activities under the impartment of education would also not amount to the
rendering of the services under the provisions of the Consumer Protection Act, 1986” 148. The
other issue that was also raised in this question was as to the defect or the deficiency in the
transportation which was provided by the schools or colleges. In many cases, it is generally
seen that the schools and colleges often use buses to take students to and from the places of
education. the Commission was of the view that the consumer fora does not have the
jurisdiction to entertain such issues because such issues are not directly connected to the
impartment of education.

The commission in the present case, took the help of the case of P.A Inamdar v. State of
Maharastra149 and held that the coaching centres cannot be equated with the conventional
educational institutions. They do not have the necessary affiliation to any board or any other

146
Manu Solanki (n 91).
147
Ibid.
148
Ibid (n 128) p.23.
149
Ibid (n 143).
form of committee made for the purpose of determining the standards of education. Thus they
cannot be equated with the conventional educational institutions and would not come under
the definition of the educational institution. As a natural corollary, it would also not come
within the purview of the service providers under the consumer protection laws. In the
present case, the educational institutions came under the provisions of the consumer
protection laws because neither they were coaching institutes and nor they were covered
under the scope of the vocational courses. Thus they are not rendering any services and any
deficiency of services would not be amenable to the jurisdiction of the consumer courts.

3. REGISTRAR, MANONMANIAM SUNDARANAR UNIVERSITY V. SREOSI

CHATTERJEE AND ORS.150

In the context of this case, the complainant who is the respondent in the present case was
pursuing MBA at the petitioner university. Although there was completion of the degree, the
certificates in this regard were not issued to him and alleging the deficiency of services, she
approached the consumer forum.

The issue in this case was also whether the imparting of education does fall under the
purview of the consumer protection Act and whether the complaint is maintainable or not.

The commission in the case also took the reference to the Manu Solanki v. Vinayak Mission
University151Judgment while holding that the “the law laid down by the Larger Bench of this
Commission in the case of Manu Solanki152, is fully applicable and the Petitioner University
do not fall within the purview of the Act as it is not rendering any service.”153 The
commission thus ceded in favour of the respondent university while providing that the
complaint is not maintainable.

4. RAJENDRA KUMAR GUPTA V. VIRENDRA SWARUP PUBLIC SCHOOL154

The case relates to the fact that the complainant is the father of the student who was studying
in the respondent school. The respondent school had organised some summer camp activities
for the purposes of the all-round development of the students. The complainant received a

150
MANU/CF/0148/2022.
151
Manu Solanki (n 91).
152
Ibid.
153
Ibid (n 132) para 9.
154
First Appeal No. 852 Of 2016 (Against The Order Dated 03/06/2016 In Complaint No. 29/2006 Of The State
Commission Uttar Pradesh).
call from the school that his son is unwell and on reaching the hospital, the complainant was
made aware of the fact that the student was bought dead to the hospital. On further enquiry,
the complainant was made aware of the fact that during the swimming exercise that was
made in the school, his son drowned in the pool. Aggrieved by this, the complainant
approached the state commission, but the commission was of the view that complainant is not
a consumer and is not covered under Consumer Protection Act. The National Commission
was of the view that educational institutions do not fall within the ambit of the Consumer
Protection Act, 1986 and education in here means and includes co-curricular activities as well
like swimming.

5. L.B.S GROUP OF EDUCATION INSTITUTE V. ARJUN SINGH AND ORS.155

In the present case, the respondent got admitted to the diploma branch of the polytechnic
course of the appellant institution. On the completion of the course, he was to be awarded the
degree of a diploma in engineering in the mechanical branch and this was to be followed by
the awarding of the mark sheet and diploma certificate. The respondent provided the
appellant with all the necessary documents including the fees but he was not awarded the
degree and also the requisite certificates were not provided to him. Due to this he was not
able to apply for a variety of government services even though he was eligible for them

The commission in this case also had to take reference from the case of Manu Solanki v.
Vinayak Mission University156 and held that since the appellant institution is not running a
coaching institute and is rendering education to all, it will not fall within the ambit of the
consumer protection laws. The bench stated that it was bound to follow the case of Manu
Solanki157 in every aspect.

6. UNIVERSITY OF PETROLEUM AND ENERGY STUDIES v. ANUJ KANWAL158

The present case deals with the issue of the refund of fees as per the guidelines that are
provided by the UGC in case any student retracts his admission from the university or any
affiliated college. In this case, the respondent before the National Commission was the
complainant in the original complaint who took admission in the B. Tech course of the
155
Revision Petition No. 544 OF 2020 (Against the Order dated 19/12/2019 in Appeal No. 1275/2019 of the
State Commission Rajasthan).
156
Manu Solanki (n 91).
157
Ibid.
158
Revision Petition No. 1474 Of 2013 (Against The Order Dated 20/03/2013 In Appeal No. 917/2012 Of The
State Commission Delhi).
appellant institute and also paid the requisite but due to some personal issues, he could not
join the course and offered to withdraw the admission. Out of the total fee that was paid a
large chunk of money amounting to 90,070 was not refunded. The complainant sought this as
a deficiency of service in the context of the consumer protection Act. The primary argument
was yet again as to whether or not this would come under the definition of service as
provided under the provisions of the consumer protection laws.

The Commission was of the following view,

“From the averments made in the Complaint filed by the Complainant Shri Anuj Kanwal as
also the Order dated 10.07.2012 passed by the District Forum and the Order dated 20.03.2013
passed by the State Commission, we find that the University of Petroleum & Energy Studies
(UPES), Petitioner is imparting Education to the students and the Complainant Shri Anuj
Kanwal took admission in B. Tech Course in the Petitioner University. The Petitioner is not
running any Coaching Institute.”159 The Commission was of the view that the principle
applied in the Manu Solanki160 case would be applicable here also.

7. M.P. SINGH RATHORE v. LITTLE FLOWERS PUBLIC SCHOOL AND ORS.161

In the present case, the petitioner filed a complaint under the provisions of the consumer
protection Act of 2019 that his son was wrongly failed by the respondent school. There was a
question that arose as to whether the school had tried to tamper with the records of the
student and also manipulated the report of the same. The appellant was of the contention that
his son was failed in the class XI of the respondent school deliberately. His report card was
tampered so as to fail him in the board exams. Thus it amounted to the deficiency of services
and the respondent school be made guilty of the same. The Commission in its judgment has
analysed all the other judgments in this regard and was of the view that ,“the Hon'ble
Supreme Court in a series of its judgments has taken a view that the education is not a
commodity and student is not a consumer as well as the educational institutions are not
service provider. The petitioner has stated that the School is recognised by the competent

159
Ibid. para 11.
160
Manu Solanki (n 91).
161
Revision Petition No. 1932 Of 2019 (Against The Order Dated 16/05/2019 In Appeal No. 415/2010 Of The
State Commission Delhi).
authority and therefore, this is a proper educational institution recognised under the law of the
land.”162

The commission ceded with the view of the Supreme Court of India in the case of P.T.
Koshy v. Ellen Charitable Trus163t and the case of Maharshi Dayanand University v. Surjeet
Kaur164 and held that the consumer fora have no jurisdiction to deal with the issue of the
deficiency of service or the unfair trade practice in the following case.

8. SUMIT UPADHYAY v. CHANDANVAN PUBLIC SCHOOL165

The case before the commission was peculiar in this instance. The appellant got admitted in
the respondent educational institution in class XI. There was a promise that was entered into
between the student and the educational institution that certain amount of concession would
be provided at the time of admission. When the appellant went for the process of admission,
the concession was denied and he was forced to pay the entire amount. Further there was an
offer that on payment of a certain sum of money, the appellant would be eligible for the
private tuitions, to which the appellant disagreed. On the beginning of the academic session,
the appellant was not allowed to sit in science class because the subject of science was being
taught by a private tutor and since the appellant had not paid the fees that was asked for the
private tuitions, he was not allowed to sit in the class. The opposite party asked the
complainant to take TC and compelled the complainant to say that the TC was given for other
reasons. The commission held as follows-

“It is true that Hon'ble Supreme Court in Maharshi Dayanand University Vs. Surjeet Kaur,
has observed that a student is not a consumer and education institution is not a service
provider. This observation has been made in the light of the fact that the consumer forum had
passed an order which was against the provisions of the statute governing the university. In
the present case no provision of any statute will be violated if the consumer forum considers
the refund of the fees.”166

This means that the preliminary issue of jurisdiction of the commission was answered by the
reference to the case of Maharishi Dayanand University v. Surjeet Kaur167. In the referred

162
Ibid para 8.
163
P.T. Koshy (n 123).
164
Maharshi Dayanand (n 121).
165
MANU/CF/0213/2020.
166
Ibid para 8.
167
Maharshi Dayanand (n 121).
case, the question of jurisdiction was against the statutory functions of the university. The
refund of fees provision of the statute will not be violated in case they consider refunding the
total fees of the appellant. The Court further held that, “the observation of the Hon'ble
Supreme Court in respect of fees may be taken as fixation of fees rather than refund of fees.
A case of refund of fees could not be affected by the observations of the Hon'ble Supreme
Court as it does not relate to the academic activities of the institutions.” The Court has to
make a distinction that in this case, the issue was only and only the refund of fees, so in this
case, the provisions in relation to the cases aforementioned would not apply. The
Commission held that the petitioner had not attended any class but the reason was the
unavailability of staffs and so the petitioner was entitled to the refund of the fees, although
not the whole of it.

9. OZA NIRU KANUBHAI v. CENTRAL HEAD INSTITUTE168

The facts of the case was that the complainant was mistreated by one of the faculties of the
private educational institute. The complainant was subsequently rusticated for having made
such complaint of mistreatment. The complainant filed the complaint so as to get the refund
on the fees that was submitted by the complainant to the educational institution. The National
Commission was of the view that because the educational institution was not statutorily
established and because the nature of the relationship between the teacher and the student in
this case was, purely contractual the Court held that activities performed by the educational
institution would come under the purview of the consumer protection statute. The case went
as far as to say that the private educational institutions were recognised as service providers
and the students enrolled therein could be equated with that of the sponsors that were also
consumers under the provisions of the consumer protection laws. The judgment tried its best
to separate the statutory bodies from that of the private educational institutes like the
coaching centres and the private tuition bodies.

10. JAI KUMAR MITTAL V. BRILLIANT TUTORIALS169

The facts of this case were that the respondent was a coaching institute. The prospectus of the
institute provided that the study materials that the institute provided were made with a lot of
precision and authenticity. But the appellant was of the contention that the materials
contained very basis and substantive material mistakes. This was alleged as a deficiency of

168
Appeal no. 35 of 2020 (NCDRF).
169
Original Petition No.51 Of 1995.
service. The Commission held that held that the supply of defective study materials by an
institute can sustain a valid claim against it for deficiency of service.

11. UNIVERSITY OF KARNATAKA V. POONAM G. BHANDARI170

The National Commission in this case was of the view that when a person is appearing for
any examination, evaluation of answer scripts, publication of the results of the university is
not services provided to the candidate for which, in case of any discrepancies they cannot
approach the consumer courts. Even if consideration is provided, then also such activities
won’t be considered as services.

12. BOARD OF EXAMINATIONS V. MOHIDEEN ABDUL KADER171

The facts of the case were that due to some discrepancies in the hall ticket number, the
complainant was not allowed to sit in the examination. The complainant contended that he
was wrongly precluded from siting in the examination due to the negligence of the opposite
parties. The board was also made a party in the complaint on the ground that it was
vicariously liable for the conduct of the constituent college. The Commission referred to one
of the important case laws of consumer laws which provided for a test to determine the
essential condition for being a consumer under the consumer protection laws. In the case of
Society for Civic Rights v. Union of India and ors.172, the National Commission was of the
view that the so as to be included within the ambit of consumer, there should be a nexus of
hiring of service between the consumer and the service provider. In this case, there was no
nexus of hiring for service because the conducting of examination cannot be regarded as
service. In the present case, there has been payment of consideration but that does not per se
convert the candidate into the hirer of services.

13. DEPUTY REGISTRAR (COLLEGES) v. RUCHIKA JAIN173

This is regarded as one of the most important judgments that derived the subject of education
under the purview of the Consumer Protection Act from the perspective of the conducting
examination itself. The complainant in this case was appointed against the management quota

170
FA No. 245 of 1992, decided on 16-9-1993.
171
(1997) 2 CPJ 49 (NC).
172
First Appeal No. A/1994/649.
173
Revision Petition No. 1121 Of 2005 (From The Order Dated 17.3.2005 In R.P. No. 156 Of 2004 Of The
State Commission, Haryana).
even though she did not have the requisite marks in the subject of physics that is required for
the enrolment in BDS course.

The National Commission was of the view that examinations are conducted by multifarious
boards or universities. In these examinations, students participate voluntarily, to know the
level of competence they have in the subjects and to judge their competency and knowledge
in a particular field. These examinations are important to certify the students as having the
requisite competence and knowledge. These activities cannot be termed as services in relation
to the consumer protection laws.

The case of Mohini Jain v. State of Karnataka174, was one of the most important judgment
that led to the Supreme Court of India struck down the capitation fees in colleges as
unconstitutional.

14. HIMACHAL PRADESH UNIVERSITY v. SANJAY KUMAR175

The facts of the case were that the complainant applied for the supplementary examination in
the subject of English for the second year examination in the appellant University. By the
date of examination, the complainant could not get his roll number due to which he could not
sit for the examinations which resulted in a year loss in studies.

The National Commission was of the view that non supply of the roll number is the
deficiency of service on the part of the appellant-University. This was one of such cases,
where the Commission started differentiating between the conduct of the examination as such
and the administrative activities that were connected thereto.

This was the case that led to the formation of the bench that decided the Bihar Education
Board v. Suresh Prasad Sinha. 176

15. BIRLA INSTITUTE OF TECHNOLOGY & SCIENCE V. ABHISHEK MENGI177

In this case the fact was that the respondent was admitted to an educational institution that
was providing the degree in Engineering. The respondent later decided to join another college
and applied for Transfer certificate. The college allowed the transferred but failed to remit a

174
Ibid (n 8).
175
(2003) 1 CPJ 273 (NC).
176
Bihar Education Board (n 31).
177
(2013) 2 CPJ 681 (NC).
large part of fees that was already paid. The National Commission was of the view that the
student was a consumer under consumer protection laws.

16. FIITJEE Ltd. v. S. Balavignesh178,

The facts of the case are very peculiar. The appellant is a coaching conglomerate who
provides coaching for Engineering entrance examinations. Respondent joined the educational
institution and paid all the fees. The admission form contained a clause that if after that stage,
the respondent would try to leave the coaching institute, no fees would be refunded to him.
Respondent subsequently revoked his admission. The National Commission held, that after
the respondent left the coaching, the seat was not subsequently filled. It was of the view that
if the appellant would be ordered to remit the fees in full, it would cause a loss to the
institutions. On the preliminary issue of jurisdiction , the National Commission was
convinced that the educational institution would come under the purview of the Consumer
Protection Act.

17. MADAN LAL ARORA V. MAHSHYA CHUNI LAL SARASWATI BAL MANDIR
SENIOR SECONDARY SCHOOL179

The fact of this case was that there was a school excursion in which the son of the
complainant was a part of. The deceased went into the river without the guidance of the
teachers. The deceased was a minor and he drowned in the river. The National Commission
was of the view that this was a deficiency in services under the provision of consumer
protection laws. But this is in sharp contrast with the case of Fakhre Alam v. Amity Business
School180 in which the Commission was of the view that the educational institution was not
liable for the deficient service because the fact situation was different from the other case on
the ground that in the latter the candidate was a major.

II.4.- ANALYSING THE DIVERGENT APPROACHES

Educational institutions are not the repositories of only classroom teaching. They involve a
lot of other activities other than conventional pedagogical aspect. They include extra-
curricular activities, conducting examination, declaration of results, affiliation related
standards and advertising to attract the potential students to join an educational institution.

178
( 2015) 3 CPJ 112 (NC).
179
(2013) 2 CPJ 450 (NC).
180
2015 SCC OnLine NCDRC 1839.
The issue whether educational institutions would come under the purview of the consumer
protection laws or not. To answer this, there has to be a rationale as to what activities that are
performed by the educational institutions would be covered under such ambit and what would
not. The differential in this regard has never been conclusively determined by the
constitutional courts or the consumer forums. For a particular set of activities fall under the
scope of the applicability of the consumer protection laws, this rationale is the prior requisite.

The decisions of the Supreme Court and National Commission are in sharp contrast with each
other in respect of certain activities. The sharp scrutiny of these judgments gives us the
position that the judgments are incongruent to each other. It is thus imperative that we first
understand the conflict of these decisions and then try to carve out the reasonable differential.

The decisions of the Supreme Court and the National Commission have almost made the
issue of the conducting examination under the purview of the consumer protection laws as res
integra. This asserts that whenever an educational institution conducts examination, the
consumer protection courts will not have jurisdiction. This means that if any board conducts
any examination then the issue relating to the examination will not be amenable to the
consumer protection courts of the country. But in the case of the Secretary, Board of
Secondary education, Odisha v. Santosh Kumar Sahoo181, the Supreme Court when stumbled
upon the issue of the issuance of marksheet which also forms part of the entire process of the
conduction of examination as per the decision of the Bihar Education Board v. Suresh
Prasad Sinha182, was decided in favour of the complainant. In the further case of Ranchi
University, the Court again held that the conduction of examination though comes under the
consumer protection laws.

The Orissa high Court has held that, “examinations and publications of result is a service
since the same gives benefit to a person who appears at the examination and becomes
successful. For rendering the service, opposite party charges fees which can be said to be the
hiring charges for such service. It is not personal service. University Statute 75(12) also says
that it is the duty of the University to conduct examinations properly. Accordingly, it
empowered the syndicate to conduct examinations and publish results and, therefore, the
same falls within the definition of ‘service’ under the Act and the student appearing in the

181
Ibid (n 122).
182
Bihar education Board (n 31).
examination is a ‘consumer’ under the Act.”183Further the contention that the provisions of
the statute that forms the educational board or institution provide that there cannot be a scope
of the intervention by the consumer courts, is contrary to the provisions of the Consumer
Protection Act, 2019 itself.

The Punjab and Haryana High Court held that “the reference may also be made to Section 3
of the Consumer Protection Act, 1986. which provides in general terms that the provisions of
the Act shall be in addition to and not in derogation of the provisions of any other law for the
time being in force. It is thus manifest that the remedies under the Act are additional and
supplemental remedies designed to provide summary and expeditious relief to the harassed
class of consumers. In addition to what has been said above, the
jurisdiction under the Act cannot possibly be barred or blocked against the University itself
by the provisions of section 27 aforesaid”.184

There is no clear differential on the basis of which the educational activities forming a part of
the process of conduction of examination can be said to be included within the ambit of the
consumer protection laws or not. The first time the basis of difference was carved out in the
case of Bihar School Education Board v. Suresh Prasad Sinha185. This judgment was formed
out of the very incongruent judgments of the National Commission in this regards. The
Supreme Court of India held that conduction of examination by a statutory board and all the
associated activities form the part of the sovereign functions. The Court did not answer as to
what was the rationale behind the use of the phrase “statutory functions”.

In recent decades, there have been formed several private testing agencies that conduct
examinations and related activities. The Court has not answered as to whether they can be
included within the framework of the consumer protection laws or not. On the preliminary
analysis of the judgment, it is seen that the Apex Court has not defined the words “statutory
functions”, “commercial functions” and “quasi-commercial functions”. It only says that due
to the conduction of examination, being a statutory function would not come under the
purview of the Consumer Protection Act. It is provided that “statutory functions” have been
defined in several cases of the Apex Court. In the case of Balmer Lawrie and Co. Ltd. v.
Partha Sarathi Sen Roy186, the Supreme Court of India was of the opinion that for becoming

183
Ibid (n 30).
184
Maharishi Dayanand University, Rohtak v Shukantala Chaudhary, I (1992) CPJ 33 (35) (Har).
185
Bihar Education Board (n 31).
186 Civil Appeal Nos. 419-426 Of 2004.
a sovereign function, a function should primarily be inalienable. This means that the function
that the body is doing should be of such nature that such cannot be delegated to any other
body. A sovereign function shall be based on the working of the government and includes all
the welfare activities that it takes. But the Court in paragraph 18 and 20 of the judgment says
that only because a subject is dealt with by the state or the monopoly of the state is there is a
particular field it won’t come under the purview of the sovereign function of the state.

In the present case, the board was a state-affiliated board that was conducting examinations.
The government only dealt with the subject and did not have a pervasive control over the
working of the Board and thus by the definition of the sovereign function given in the
aforementioned case, the conducting of examination would come under the purview of the
consumer protection laws. Further several private boards conduct examinations and also
outsource the conducting part to some private bodies. In that case, the judgment is silent as to
whether if there is an inclusion of private examination conducting bodies within the ambit of
the scope of service.

The definition of statutory functions has been provided by the courts in a catena of
judgments. The judgment of Katurilal v. State of Uttar Pradesh187 that is regarded as the
landmark judgment in the law of torts that defined statutory functions as those functions that
have been expressly provided by a statute and cannot be delegated to any other person or
body. But in case of the educational institutions, although conduction of examination can be
construed to mean more or less in the favour of the statutory functions, certain connected
activities like the publication of results and the furnishing of marksheets cannot come under
the purview of the statutory functions. Thus they should come under the purview of the
consumer protection laws. The issue with this differential is that they have included both the
sovereign functions and the administrative functions under the same domain.

To explain this an illustration can be taken. Suppose students have appeared for an
examination that is conducted by a state education board. The date of the exams, the scheme
of evaluation and the marks awarded should not be challenged on the allegations of the
deficiency in services because, they come under the purview of the statutory functions i.e. the
statute under which such university or board functions, expressly underlines such functions to
be under their prerogative domain. But functions such as allotment of seats, issuance of admit
card, discrepancies in admit card, issuance of marksheet and the discrepancies in the

187
1965 SCR (1) 375.
marksheet and other certificates etc. all come under the administrative functions of the
educational institutions and thus should be amenable to challenge in the consumer courts.

The other conflict in the judicial decision can be seen from the case of the P.T. Koshy v. Ellen
Charitable Trust which said that education is not a commodity and thus when an educational
institution provides any facility to the student then the facility won’t come under the purview
of the consumer protection laws. This is a flawed judgment due to the fact that it does not
define what activities are included within the ambit of the judgment. This was in sharp
contrast to the decision of this Court in the case of P. Shreenivasulu v. P.J. Alexander in
which the Court held that educational institutions would come under the purview of the
consumer protection laws. This shows a sharp judicial conflict in relation to the general
position of the inclusion of the consumer protection laws.

The National commission judgments are also not in the straight-line formula. In the same
way, they have also failed to provide an adequate differential for the difference within the
activities that come under the purview of the consumer protection laws. There have been
several differences drawn by these judgments in terms of the impartment of education in the
conventional schools and colleges and the coaching institutes and the institutes providing for
vocational courses. In the case of Shivam Malhotra v. Managing Director, Oxl School Of
Multimedia And Ors., the National Commission tried to draw the attention to these
differences. The Commission was of the considered view that coaching institutes would come
under the purview of the consumer protection laws because they are not affiliated and do not
come under any statutory board. The Commission made it clear that the judgment of Manu
Solanki v. Vinayak Missison University188 would apply only when the education is imparted
in a conventional institute with requisite affiliation and the coaching centres and the
vocational course related institutes were not within the purview of this judgment. In the other
judgment, the Commission used this rationale to hold that the University that is a statutory
body under the UGC Act will not fall within limits of the applicability of the consumer
protection laws.

It is provided that the drawing of these differences has to be critically examined. The
impartment of education has not been clearly distinguished through the various constituent
activities. Also it is not clarified as to the reasonable differentia for categorising the coaching
institutes and the conventional educational institution for the purpose of the applicability of

188
Manu Solanki (n 91).
the consumer protection laws. Consideration forms the basis of transactions in the
commercial matters. “Whenever education is imparted for a consideration, it is obvious that
there exists a quid pro quo for the provision of education and a monetary recompense
therefor.”189 There can be no logical reasons for excluding education from the ambit of the
consumer protection laws.190

In respect of the activities which are connected with the impartment of education, has to be
scrutinised in the respect of the activities which form the part of them. Manu Solanki v.
Vinayak Mission University191 that formed the basis of several decisions of the National
Commission was of the view that even the rendering of vocational courses and other
activities in an education institution shall not be covered under the provisions of the
Consumer Protection Act, 1986. The only exception to this are the coaching institutions. This
judgment was criticised on the ground that even the activities which were very remotely
connected with the conventional teaching were covered under the provisions of the consumer
protection laws.

In respect of fees that are paid to the educational institutions, there seems to be a more
balanced approach by the National Commission wherein the National Commission has
consistently held that deficiency of services in respect of the fees paid or the refund of the
same would come under the purview of the consumer protection laws.

189
Dr J N Barowalia, Commentary on the Consumer Protection Act; 7th Edn.
190
Ibid.
191
Manu Solanki (n 91).
 CHAPTER- III

III.- DEFICIENCY OF SERVICES AND UNFAIR TRADE PRACTICES IN

EDUCATIONAL INSTITUTIONS

Consumer protection laws have the major objective of preventing the consumers from any
deficiency of services or any unfair trade practices in the services that are provided to them or
the goods that they consumer either as the consumer or as the user. Consumer protection laws
also provide the penalty for the purpose of punishing any deficiency of service or any unfair
trade practice practiced in terms of the educational institutions. “The Consumer Protection
Act aims to protect the consumer interests”192 The element of profit is pertinent to draw the
commercial aspect of goods and services. But there has to be different removal and
compensation of the defects and deficiencies. The former requires replacement and repair
whereas the later requires compensation for loss.

Deficiency has been defined under Section 2(11) of the Consumer Protection Act, 2019. It
says,

"deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature
and manner of performance which is required to be maintained by or under any law for the
time being in force or has been undertaken to be performed by a person in pursuance of a
contract or otherwise in relation to any service and includes— (i) any act of negligence or
omission or commission by such person which causes loss or injury to the consumer; and (ii)
deliberate withholding of relevant information by such person to the consumer”.

This provision deals with the definition of deficiency in a very holistic manner. It says that
there may be any fault, imperfection, shortcoming or inadequacy in the quality, nature and
manner of the performance which is to be maintained by the person who provides goods or
services and any negligent act or omission or any deliberate concealment of information shall
be excluded. There are certain tests that have to be followed in order to determine if there is
an issue of the deficiency in service on the part of the service provider. The tests are as
follows-

192
Ibid (n 96).
 1. Test of reasonable care and precaution- This test was devised by the courts in
reference to the subject of medical negligence in the case of Dr. Laxman Balakrishna
Joshi v. Dr. Trimbak Bapu Godbol193, in which the Court was of the view that the
medical practitioner shall exercise reasonable degree of care, skill and knowledge in
his/her medical practice. In the context of the educational institutions, the institution
should also be liable to maintain this amount of reasonable care and protection so that
the student who is studying under the educational institution is not prejudiced by the
conduct of the educational institution.

2. Test of substantial commercial hardship- This test seems plausible in the context of
the deficiency of service which was coined by the Court in the case of the Sailesh
Munjal v. AIIMS194, wherein the Court held that if at all the actions of the service
provider has caused substantial monetary loss for the consumer, it will drag the case
within the ambit of the deficiency of service and make the service provider liable for
the same.

Under the provisions of the Consumer Protection Act, 2019, a person has the right to file a
complaint against deficient services provided by the service providers. In order to prove
deficiency in service, the first essential is that the person alleging deficiency should prove
that the person comes under the definition of consumer of the service that is provided by the
service provider. A combined reading of the definition in the Act and taking the context of
the educational institution, it can be seen that if there is any fault, imperfection, shortcoming
or inadequacy in the quality, nature and manner of performance of the education or the
related activities that are provided by the educational institution, it may be regarded that the
educational institute is liable for the deficiency of services. “Deficiency, as defined under
Section 2(11) of the Consumer Protection Act, 1986, “means any fault, imperfection,
shortcoming or inadequacy in the quality, nature and manner of performance which is
required to be maintained by or under any law for the time being in force or has been
undertaken to be performed by a person in pursuance of a contract or otherwise in relation to
any service.” Thus, if there is a failure to provide any service which is mandated for the
discharge of his duties or function, it will amount to deficiency. Thereby, any deficiency or
defect in the services provided by the educational institutions may be covered under this
definition, hence any complaints, inter alia, regarding wrong allotment of roll numbers, delay

193
AIR 1968 SC 128.
194
(2004) 3 CPR 27 (NC).
in declaration of results, and admission in access of the allotted quota can be filed before the
consumer forum if the essential condition of jurisdiction is satisfied. Since educational
institutions are being commercialised, there are complaints in the consumer forums regarding
the misleading advertisements by such institutions.195 The ambit of the circumstances that
would result in the deficiency of services in the educational institutions are very wide as per
the decisions of the National Commission in a number of cases including where the wrong
seats were allotted, marksheets were not provided within the stipulated time, the issues
relating to the safety of the students who are part of the educational institutions and many
more. These cases have been dealt in terms of their preliminary issue as to whether the
students who are aggrieved by the conduct of the educational institutions come under the
ambit of the word “students” or not. If this preliminary issue is not decided in the favour of
the students, the question of the deficiency of services would not arise at all. In the landmark
case of Buddhist Dental Mission v. Bhupesh Prasad Khurana196, the SC was of the view that
“deficiency’ means any fault, imperfection, shortcoming or inadequacy in the quality, nature
and manner of performance which is required to be maintained by or under any law for the
time being in force or has been undertaken to be performed by a person in pursuance of a
contract or otherwise in relation to any service.”197

The law relating to consumer protection also provides the meaning of unfair trade practice
and the acts that come under the definition of the unfair trade practice are provided in the
statute. The phrase ‘unfair trade practice’ has been defined under Section 2(27) of Consumer
Protection Act, 2019. It says that-

"unfair trade practice" means a trade practice which, for the purpose of promoting the sale,
use or supply of any goods or for the provision of any service, adopts any unfair method or
unfair or deceptive practice including any of the following practices, which are as follows

(i) Making any statement either in writing, orally or in electronic form, which—

(a) Falsely represents that the standard, quality, quantity, grade, composition, style and model
is corresponding to a particular yardstick

(b) Falsely represents that the services are of a particular standard, quality or grade;

195
S. Mehta, ‘Consumer Protection And Educational Services’ (2010) 4 MLJ 19.
196
Buddhist Dental Mission(n 126).
197
Ibid.
(c) Falsely represents refurbished goods as new goods;

(d) Falsely represents that the goods or services have sponsorship, approval, performance,
characteristics, accessories, uses or benefits;

(e) Represents that the seller or the supplier has a sponsorship or approval or affiliation which
such seller or supplier does not have;

(f)Falsely or represents in misleading way, about the need of any goods or services;

(g)Asserts to the public any information about warranty or guarantee of the performance,
efficacy or the length of life or the product or any goods that is not based on adequate proof
via tests :”

(h) Represents to the public regarding any warranty or guarantee of any goods or services or
a promise to replace or repair an article without the intention of giving effect to such
warranty, guarantee or promise;

(i) Materially misleads the public concerning the price at which a product or like
products or goods or services, have been or are, ordinarily sold or provided, and, for
this purpose, a representation as to price shall be deemed to refer to the price at which
the product or goods or services has or have been sold by sellers or provided by
suppliers generally in the relevant market unless it is clearly specified to be the price at
which the product has been sold or services have been provided by the person by
whom or on whose behalf the representation is made;

(j) Gives false or misleading facts disparaging the goods, services or trade of another person.”

From the above definition it is provided that the meaning of the term ‘unfair trade practice’
has been expanded by the parliament by including the making of statements giving false
representation, making of misleading representation qua a warranty or guarantee of a product,
misleading advertisements with reference to prices, sale or supply of sub-standard goods and
hoarding of goods, etc. The purpose of the inclusive clause is to enlarge the meaning of the
words or phrases. It has been held by the Supreme Court of India that inclusive definitions
are generally used to enlarge the meaning of the words or phrases that are used in the statute.
These definitions are generally found in the beneficial legislations which includes within its
ambit the natural meaning as well as the inclusive things.198The object and purpose of the
Consumer Protection Act is to save the consumers from unfair trade practices carried on by
traders. The conduct and practice internationally adopted by the opposite party, in not making
delivery of the tractor to the complainant, because of whom the complainant suffered, shall
certainly be deemed to be an ‘unfair trade practice’ within the Consumer Protection Act.199

There have been numerous instances when the deficiency in service or unfair trade practices
in the educational institutions has come under the strict scrutiny by the consumer courts and
the Supreme Court of India. Some of them are noted as follows-

1. Imparting of education- In this context, the decisions have solely depended on

whether the activity is included within the purview of the service or not. In the latest
judgment and the others that have followed, the trend of the National Commission has
been to deny the students the benefit of approaching the consumer courts against any
deficiency of service or any unfair trade practices concerned with the educational
institutions. The commission has mentioned in the judgment that the coaching
institutes and the institutes that are providing vocational courses are liable for
deficiency in providing service or unfair trade practice.

2. Conduction of examinations- The decision of the court in the case of Bihar

200
Education Board v. Suresh Prasad Sinha has settled the position that the
conduction of examinations won’t draw the allegation of the deficiency in services or
the unfair trade practices but there are certain judgments of the National Commission
which have bought the administrative aspects of examination within the allegations of
the deficiency in service and unfair trade practices.

3. Delay in the acceptance of the synopsis by the University- In the case of Vice
Chancellor, Punjab University, Patiala v. Ashutosh201, the complainant passed the
written test of the university and was started his work as the M. Phil candidate of the
university. But the synopsis of the candidate was rejected. The National Commission
was of the view that, “Complainant is a consumer, and the unexplained delay on the
part of the University in accepting the synopsis was a deficiency in service. The

198
Commissioner of Income-tax, A.P. v Taj Mahal Hotel, Secunderabad, AIR 1972 SC 168 (170).
199
Om Prakash v Assistant Engineer, Haryana Agro Industries Corporation Limited, II (1994) CPJ 1 (4) (SC).
200
Bihar Education Board (n 31).
201
2003 (1) CPJ 17 (NC).
 University is directed to register the Complainant for M. Phil degree and take follow
up action as per rules on the subject”202.

4. Incorrect declaration of the results- In the case of Adhiyaman College v. S.

Venkatapathy203, the National Commission was of the view that the incorrect
declaration of the results is a deficiency in service on the part of the educational
institutions. In the present case, the respondent was admitted into the course offered
by the appellant college. After the exams got over, the respondent applied for further
studies abroad, but the respondent college incorrectly published the results in which
the respondent was shown as failed in one of the papers. This was rectified later but
the scholarship for studying abroad was delayed and due to which the academic year
of the respondent was lost.

5. Failure to refund the fees- In the case of Frankfinn Institute of Air Hostess Training
and another v. Aashima Jarial204, the National Commission ordered a refund of fees
and cost of litigation to the opposite parties. The order of the District Forum is based
on equity and therefore, the complainant would be only entitled to the refund of fees
paid as directed by the District Forum and the cost of litigation. Due to the inordinate
delay caused by the lower consumer forums, the Commission also ordered an
expedited compliance.

6. Issues relating to exam centres- In the case of Indian Institute of Banking and
Finance (IIBF) v. Mukul Srivastava205, the National Commission dealt with a case in
which the respondent had to be moved to another exam centre after the start of the
exam that caused mental stress and duress in the examinations. The Commission
although sent the case back to the State Commission but noted that this had caused
substantial mental hardship for the respondent.

7. Delay in the admission of the students- In case of Akhil Bhartiya Grahak Panchayat
v. Secretary, Sharda Bhawan Educational Society206, there were some irregularities in
the admission of the students to a pharmacy college due to which a resultant delay in
their registration was caused. The National Commission took serious note of this issue

202
Ibid para 17.
203
1995 (3) CPJ 14 (NC).
204
2019 SCC OnLine NCDRC 380.
205
REVISION PETITION NO.3161 OF 2012.
206
5 FA 15/92 15.4.94 (NC).
 and held that the college was liable for deficiency in service. Due to the delay causes
by the college, the students had to remain unemployed for a period of about two years
which was termed as prejudicial by the Commission.207

8. Denial to sit in exams after registration in the course- In the case of Sonal
Matapurkar v. Ningilappa Institut208e, the National Commission was of the view that
when the institute at the time of admission expressly allowed the petitioner inside the
course, he cannot be further denied from sitting in the exam on the basis of the fact
that his admission was not legal. The commission was of the view that this comes
under the purview of the doctrine of promissory estoppel that would debar the
educational institute from the taking the shelter of the fact that it has expressly waived
off.

9. Issues relating to the boarding of the hostels- In the case of Bhaskar Golla v.
Ramakrishna Vidyashrama209, the National Commission was of the view that “As
regards the deficiency in providing services of boarding and lodging in the hostel is
concerned, the deficiencies are writ large on the face of it. The evidences on record
clearly shows that no warden was appointed in the hostel. These all point to the facts
that there was deficiency of service in relation to the boarding and lodging in the
hostel.

10. Misleading advertisement by educational institutions- In the case of HCMI

Education v. Narendra Pal Singh210, the National Commission was of the view, in a
case where an educational institution which was based in Phillipines had made
misleading statement that they had the requisite permission for the course they were
offering and they were made liable for the unfair trade practice in this regards. In the
further case of Shaheed Bhagat Singh Public School v. Anoop Singh211, the National
Commission was of the view that the false and misleading advertisement as regards
the affiliation would bring home the allegation of unfair trade practices.

207
D. Saraf, Consumer Protection Law, Annual Survey of Indian Laws.
208
1997 SCCOnLine NCDRC 27.
209
2019 SCC OnLine NCDRC 1181.
210
(2013) 3 CPJ 121.
211
2012 SCC OnLine NCDRC 519.
 11. Demand for arbitrary fees- In the case of Allen Career Institute v. Anil Kumar
Sharma,212 the National commission was of the view that denying the refund of the
fees for the remaining duration for which the aggrieved has availed no services need
to refunded after charging the proportionate amount and any clause of non-
refundability of fees once deposited is arbitrary, void and amounts to unfair trade
practice. In the further case of Sehgal School of Competition v. Dalbir Singh213, the
National Commission was of the view that non-refundability of the residual fees
amounts to unfair trade practices.

212
Appeal No. 357 of 2018.
213
III (2009) CPJ 33.
 CONCLUSION

The judicial divide regarding the applicability of the consumer protection laws of educational
institutions is apparent. There have been no significant efforts through decided case laws to
stream the judgments into categories and to define what activities would or would not come
under the purview of consumer protection laws.

The analysis of these judgments includes categorizing them on the basis of the reasonable
differentia. The functions of the educational institutions can be distinguished prima facie into
two parts. These are the primary functions and the secondary functions. The primary
functions include impartment of education, conduction of examination, publication of results,
providing marksheets and other certificates, issues relating to fees and the refund of fees. The
secondary functions include the advertisement for drawing the attention of students to join
the educational institution, taking the students for excursion, conduction of extra-curricular
activities and vocational courses, facilities like hostel accommodation, transport facilities and
other activities which do not come under the primary function of pedagogy to the students.
The primary functions have a sub-set under them which comes under the administrative
function of the students.

According to the researcher, the consumer protection laws should apply on the secondary
functions of the educational institutions and also the primary functions which are
administrative in nature. This is because they are different from the principal functions of the
educational institutions. The divide within the government aided educational institution and
the privately funded educational institution should not be used to block the access of students
to the protection provided by the consumer protection forums. In the case of Indian Medical
Association v. V.P. Shantha214, the Supreme Court of India was of the view that medical
facilities whether governmental or non-governmental fall under the scope of the consumer
protection laws. In light of this judgment, it should be an accepted corollary to include all
educational institutions within the ambit of the consumer protection laws. The only basis of
divide should be in regards to the activities that come under the ambit on the basis of the
intelligible differentia of functions of educational institutions.

The legal consequence of the interpretation of these activities as services under consumer
protection laws will be that the students or their guardian can move to the consumer

214
AIR 1996 SC 550.
protection forum in case of any deficiency in service or any unfair trade practice that is done
in the functioning of the educational institution. The Consumer Protection Act, 2019, enlists
the remedies that can be provided in such cases and all such remedies will be available to the
students as well.

In a country like India, where education has been historically revered to be a spiritual
pathway, it should be a mandate that students are able to obtain quality education to prepare
them for the prosperity of the nation. It is required for this objective, that any educational
institution that tries to perform deficient service or unfair trade practice are made to undergo
strict judicial scrutiny. At the same time, it is also required that the academia of the country
not be driven into frivolous and malicious consumer protection lawsuits. It is imperative for a
strong legislative policy in this regard so that education can be accessed by each one of
students for building a brighter future.
 BIBLIOGRAPHY
Articles

1. Axay Satagopan, 'Educational Activities as Service under the Consumer Protection

Act, 1986' (2015) 8 NUJS L Rev 67

2. Avinash Kumar, 'Wider Interpretation of the Definition of Service under Consumer

Protection Act: Contemporary Analysis' (2017) 11 NUALS LJ 175

3. U. Yadav, ‘A Comparative Study Of Ancient & Present Education System’ (2018) 1

(1) Education, sustainability and society

4. S. Mehta, ‘Consumer protection and educational services’ (2014) 4 MLJ 24

5. M. Daundon, ‘Students or Consumers? For-Profit Colleges and the Practical and

Theoretical Role of Consumer Protection’ (2017) 9 Harvard Law and Policy Review
375

Books

1. Singh, A., Kaur, H. (2019) Law of Torts and Consumer Protection . (4th ed.). Lexis
Nexis India

2. Halsbury Laws of India (Tort and Consumer Protection). (35th ed.). (2019). Lexis
Nexis India

3. Pandey, J.N. ‘Law of Torts (With Consumer Protection Act and Motor Vehicles Act)’
(11th ed. Central Law Publication 2019)

Newspaper Report

1. Pushpa Girimaji, ‘SC to decide whether consumers laws govern educational services
or not’ Hindustan Times( New Delhi, 13 April 2022)

2. ‘SC agrees to examine whether education is service within Consumer Protection Act’
The Hindu ( New Delhi, 03 November 2021)

Blogs

1. ‘Is Education A Service Under Consumer Protection Act? Supreme Court Grants
Leave In SLP Against NCDRC Judgment’ (Live Law, 04 November 2021)<
 https://www.livelaw.in/top-stories/education-service-consumer-protection-act-
supreme-court-leave-184872>

2. ‘Whether Education is Service under Consumer Protection Act? Supreme Court

Grants Leave in SLP’ ( Law Trend, November 3 2021) < https://lawtrend.in/whether-
education-is-service-under-consumer-protection-act-supreme-court-grants-leave-in-
slp/>

Websites

1. www. consumerhelpline.gov.in

2. www.ncdrc.nic.in

3. www.sci.gov.in

4. www.livelaw.in