Constitution of India, 1950:

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

Article 21-Right to Education Whether implicit under the Article Whether flows from right to life and personal liberty-Extent and con- tent of the right.

Parts III and IV-Fundamental Rights and Directive Principles- Whether complementary to each other Whether a right could be recognised as a fundamental right even though not expressly mentioned.

Articles 14, 15, 21, 41, 45 and 46 Private unaided recognised affiliated educational institutions running professional courses like engineering and medical courses-Whether entitled to charge a fee higher than that charged by Government institutions Held: Entitled to charge a higher fee but such a fee cannot exceed the ceiling fixed in this regard-However, commercialisation of education riot permissible Capitation fee-Meaning of.

Whether private aided recognised/affiliated educational institutions governed by rules and regulations framed by Government in matters of admission of students and fee chargeable as also recruitment and conditions of service etc., of teachers and staff.

Whether private recognised/affiliated institutions obliged to act fairly consistent with Articles 14 and 15 and in accordance with conditions of grant of recognition affiliation-Held: as conditions of grant of aid, they were governed by such rules and regulations-Private institutions receiving aid

obliged to act fairly in consonance with fundamental rights as well as regulations framed by Government State, while granting recognition/affiliation obliged to impose conditions for maintaining standards and ensuring fairness, inter alia, in respect of fees chargeable and admission.

Admission and charging of capitation fees in private unaided/aided recognised/affiliated educational institution conducting professional courses such as medical and engineering courses-Scheme framed by Court eliminating discretion of management in admissions in and fees payable in such institutions and substituting merit of the students as the sole criterion.

Article 12-Private institution supplementing State function viz., imparting education Whether an instrumentality of State Whether public duty performed by it, viz., imparting of education, would make it amenable to Part III, such as Articles 14 and 15.

Articles 19(1)(g) and (6) Right to establish and run educational institutions Whether a fundamental right Imparting education Whether a commercial activity-Activity of establishing an education institution- Whether a profession Words 'Profession', 'Occupation', 'Trade' and Business Meaning of.

Articles 12, 14, 15, 19(1)(g), 21, 30, 41, 45 and 46 -Whether private educational institutions have a fundamental right to recognition/affiliation Whether such a right can be inferred by reading into Article 19(1) (g) a right in the nature of Article 30.

Articles 29 and 30 -Rights conferred on minorities in a positive way-Whether negate the assumption of such rights by other citizens.

A.P. Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983:

Section 3-A-Power to grant admission to students who qualified in entrance/qualifying examination irrespective of their ranking in the examina- tion and to charge any amount in addition to tuition fee-Whether violative of Article 14 of the Constitution.

Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984/Maharashtra Educational Institutions (Prohibition of Capitation Fee) Act, 1987/Tamil Nadu Educational Institutions (Prohibition of Collection of Capitation Fee) Act, 1992: Constitutional validity of Held: Constitutional as they do not contain provisions offending Article 14 of the Constitution.

In the writ petitions filed before this Court, the correctness of the decision of this Court in the case of Mohini Jain v. State of Karnataka and Others, [1992] 3 SCC p. 666 was challenged by private educational institutions, engaged in or proposing to engage in imparting medical and engineering education in the States of Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu.

In Mohini Jain's case, this Court had held, inter alia, that every citizen has a right to education under the Constitution; the State was under an obligation to establish educational institutions to enable the citizens to enjoy the said right; the State may discharge its obligation through State- owned or State-recognised educational institutions; that when the State Government granted recognition to the private educational institutions, it created an agency to fulfil its obligation under the Constitution, that charging capitation fee in consideration of admission to educational institutions, was a patent denial of a citizen's right to education under the Constitution and that the State action in permitting capitation fee to be charged by State-recognised educational institutions was wholly arbitrary and, as such, violative of Article 14 of the Constitution; that the capitation fee brought to the fore a clear class bias; and that when the State Government permitted a private medical college to be set up and recognised its curriculum and degrees, then the said college was performing a function which under the Constitution had been assigned to the State Government and if the State permitted such institution to charge higher fee from the students, such a fee was not tuition fee, but in fact a capitation fee.

The aforesaid decision was followed by the Full Bench of the A.P. High Court in Kranti Parishad v. N.J. Reddy, [1992] 3 ALT 99 while allowing the writ petitions filed before it challenging the permission granted by the State Government for the establishment of private Medical and Dental Colleges in the State and also the constitutional validity of section 3-A of the Andhra Pradesh Educational Institution (Prohibition of Capitation Fee) Act, 1983. The respondents before the High Court, including the State, filed Special Leave Petitions against the High Court's judgment. Besides several writ petitions questioning the correctness of the decision of this Court in Mohini Jain's case also were filed.

The validity of the State enactments of Karnataka, Tamil Nadu and Maharashtra and the notifications issued thereunder on the subject of charging of excess fee from the students was also questioned in the writ petitions, civil appeals and Special Leave Petitions filed before this Court.

It was contended that (a) the State had no monopoly in the matter of imparting education; every citizen had the fundamental right to establish an educational institution as a part of the right guaranteed to him by Article 19(1)(g) of the Constitution, which extended even to the establishment of an educational institution with a profit motive i.e., as a business adventure; the said right was absolute subject, of course, to such reasonable restrictions as may be placed upon it by a law within the meaning of clause (6) of Article 19; (b) the vice was not in the establishment of educational institutions by individuals and private bodies but in unnecessary State control; the law of demand and supply must be allowed a free play; (c) the establishment of an educational institution was no different from any other venture e.g., starting a business or industry; it was immaterial whether the institution was established with or without profit motive; only when there was profit motive that persons with means would come forward to open more and more schools and colleges; (d) even if it was held that a person had no right to establish an educational institution as a business venture, he had atleast the right to establish a self-financing educational institution, which institution might also be described as one providing cost-based education; and thus, it was open to a person to collect amounts from willing parties and establish an institution to educate such persons or their children, as the case may be; the quantum of the fees to be charged in such institution should be left to the concerned institution and the Government should have no say in the matter; it was not possible for the Court in the very nature of things, to go into the issue; these private educational institutions were providing a large number of 'free seats' to the nominees of the Government, and all these students would not have had an opportunity of studying the course of their choice but for the existence of these private educational institutions; (e) in these circumstances, Mohini Jain's case was not right in saying, that charging of any amount, by whatever name it was called, over and above, the fee charged by the Government in its own colleges, must be described as capitation fee, and saying so amounted to imposing an impossible condition, it was not possible for the private educational institutions to survive if they were compelled to charge only that fee as was charged in Governmental institutions; the cost of educating an engineering or a medical graduate was very high; all that cost was borne by the State in Governmental Colleges; since the State was not subsidising the private educational institutions, these institutions had to find their ow finances, and that could come only from the students; (f) even if the right to establish an educational institution was not trade or business within the meaning of Article 19(1) (g), it was certainly an 'occupation' within the meaning of the said clause; the use of the four expressions-profession, occupation, trade or business in Article 19(1)(g) was meant to cover the entire field of human activity, and the petitioners had the right to establish private educational institutions- at any rate, self-financing/cost-based private educational institutions, which would be restricted only by a law as contemplated by clause (6) of Article 19; (g) the right to establish and administer an educational institution (by a member of the minority community, religious or linguistic) arose by necessary implication from Article 30; the Constitution could not have intended to confine the said right only to minorities and deprive the majority communities therefrom; (h) the Government or the University could insist or stipulate as a condition of recognition/affiliation that the private educational institutions should admit students exclusively on merit; moreover, there might be several kinds of private educational institutions which might be established for achieving certain specified purposes viz., to cater to the needs of a particular region or a district, or to educate children of members of a particular community, (i) by virtue of mere recognition and/or affiliation these private educational institutions did not become instrumentalities of the State within the meaning of Article 12 of the Constitution; the concept of State action could not be extended to those colleges so as to subject them to the discipline of Part III; it might be a different matter if the Institution was in receipt of any aid, partially and wholly, from the State; in such a situation, the command of Article 29 (2) came into play, but even that did not oblige the institution to admit the students exclusively on the basis of merit but only not to deny admission to anyone on any of the grounds mentioned therein, and (j) that Article 21 was negative in character and it merely declared that no person should be deprived of his life or personal liberty except according to the procedure established by law, and since the State was not depriving the respondents-students of their right to education, Article 21 was not attracted.

On behalf of the respondents and the Indian Medical Council and All India Council for Technical Education it was contended that; (a) imparting of education had always been recognised from times immemorial as the religious duty and also as a charitable object, and never as a trade or business, it was a mission and not a trade, and commercialisation of education had always been looked upon with dis-favour; the Parliament expressed its intention by enacting in 1956 the University Grants Commission Act which specified the prevention of commercialisation of education as one of the duties of the University Grants Commission, which intention had also been expressed by several enactments made by the Parliament and State Legislatures since then; (b) imparting of education was the most important function of the State which duty might be discharged by State directly or through the instrumentality of private educational institutions; but when State permitted a private body or an individual to perform the said function, it was its duty to ensure that no one got an admission or an advantage on account of his economic power to the detriment of a more meritorious candidate; (c) the very concept of collecting the cost of education that was what the concept of cost-based or self-financing educational institutions meant- was morally abhorrent and was opposed to public policy; a capitation fee did not cease to be a capitation fee just because it was called as cost-based education or by calling the institution concerned as a self-financing institution; these expressions were but a cover for collecting capitation fee; it was nothing but exploitation, and was an elitist concept basically opposed to the constitutional philosophy, the concept suffered from class bias and by allowing such education, two classes would come into being; (d) even if it was held that a citizen or a person had a right to establish an educational Institution, the said right did not carry with it the right to recognition or the right to affiliation, as the case may be; even a minority educational institution was held by this Court to have no fundamental right to recognition or affiliation; hence such a right could not be envisaged in the case of majority community or in the case of individuals or persons, and it was open to the State or the University according recognition or affiliation to impose such conditions as they think appropriate in the interest of fairness, merit, maintenance of standards of education and so on, including that the admission of students, in whichever category it might be, should be on the basis of merit and merit alone; the institutions obtaining recognition/affiliation would be bound by such condition and any departure therefrom rendered the recognition/affiliation liable to be withdrawal; and (e) even if such a condition was not expressly imposed, it was implicit, by virtue of the fact that in such a situation, the activity of the private educational institution was liable to be termed as State action; the fact that these institutions performed an important public function coupled with the fact that their activity was closely inter-twined with governmental activity, characterised their action as State action; at the minimum, the requirement would be to act fairly in the matter of admission of students and probably in the matter of recruitment and treatment of its employees as well; these institutions were further bound not to charge any fee or amount over and above what was charged in similar governmental institutions; and if they needed finances, they must find them through donations or with the help of religious or charitable organisations and they could not also say that they would first collect capitation fees and with that money, they would establish an institution; at the worst, only the bare running charges could be charged from the students and the capital cost could not be charged from them.

On behalf of the Government of India it was submitted that the Central Government did not have the resources to undertake any additional financial responsibility for medical or technical education; it was unable to aid any private educational institution financially at a level higher than at present; therefore, the policy of the Central Government was to involve private and voluntary efforts in the education sector in conformity with accepted norms and goals; however, the private educational institutions could not be compelled to charge only that fee as was charged in Governmental institutions; so far as engineering colleges were concerned, permission was being granted by the A.I.C.T.E. subject to the condition that they did not collect any capitation fee;

It was also submitted that (a) conferring unconditional and unqualified right to education at all levels to every citizen involving a constitutional obligation on the State to establish educational institutions either directly or through State agencies was not warranted by the Constitution besides being unrealistic and impractical; (b) when the Government granted recognition to private educational institutions it did not create an agency to fulfil its obligations under the Constitution and there was no scope to import the concept of agency in such a situation; (c) the principles laid down in Mohini Jain's case required reconsideration; (d) it would be unrealistic and unwise to discourage private initiative in providing educational facilities particularly for higher education. The private section should be involved and indeed encouraged to augment the much needed resources in the field of education, thereby making as much progress as possible in achieving the Constitutional goals in this respect; (e) at the same time, regulatory controls had to be continued and strengthened in order to prevent private educational institutions from commercialising education; (f) regulatory measures should be maintained and strengthened so as to ensure that private educational institutions maintain minimum standards and facilities; (g) admissions within all groups and categories should be based on merit. There may be reservation of seats in favour of the weaker sections of the society and other groups which deserve special treatment. The norms for admission should be pre-determined and transparent.

The four State Governments also took a similar stand.

It was submitted on behalf of the students who had obtained admissions against the Management quota of 50% seats, that they were innocent parties and had obtained admission in a bonafide belief that their admissions were being made properly, they had been studying since then and in a few months their academic year would come to a close; may be, the managements were guilty of an irregularity, but so far as the students were concerned they had done nothing contrary to law to deserve the punishment awarded by the Full Bench of the High Court.

Disposing of the Writ petitions and appeals.