Unni Krishnan, J.P. And Ors. Etc. Etc vs State Of Andhra Pradesh And Ors. Etc. Etc

60.Notwithstanding the fact that education is the second highest sector of budgeted expenditure after the Defence, the outlay on education is woefully inadequate to the needs of the people. Whereas many other countries spend six to eight per cent of their Gross National Product on education, our expenditure on education is only three per cent of the Gross National Product. Seventy five to eight per cent of the expenditure goes in paying the salaries of the teachers and other connected staff. These are the statements made in the Government of India publication 'Challenge of Education a policy pe rspective" referred to hereinbelow. Even so, on account of lack of proper supervision, lack of self- discipline and commitment, the quality and standard of instruction in most of the Government schools and colleges except the professional colleges is woeful. This has provided an occasion and an opportunity to private educational institutions to fill the void, both in terms of meeting the need and more particularly in the matter of quality of instruction. Because, the State is in no position to devote more resources and also because the need is constantly growing, it is not possible to do without private educational institutions.

In this context, it is appropriate nay, necessary, to notice the stand of the Government of India in this behalf. It is thus: the Central Government does not have the resources to undertake any additional financial responsibility for medical or technical education; it is unable to aid any private educational institution financially at a level higher than at present; therefore the policy 673 of the Central Government is to involve private and voluntary efforts in the education sector in conformity with accepted norms and goals; however, the private educational institutions cannot be compelled to charge only that fee as is charged in Governmental institutions; in 1986, the Central Government has evolved the 'New Education Policy' according to it, 'in the interests of maintaining the standards and for several other valid reasons, the commercialisation of technical and professional education will be curbed. An alternative system will be devised to involve private and voluntary effort in this section of education, in conformity with accepted norms and goals.' (vide parts 6-20); the amendments proposed to I.M.C.

Act, 1956 in 1987 have not materialised so far; so far as engineering colleges are concerned, permission is being granted by the A.I.C.T.E. subject to the condition that they do not collect any capitation fee; according to the guidelines issued by the A.I.C.T.E., the technical colleges will be permitted to recover 'only a graded percentage of the average cost of student education, depending on whether the institution is Government-funded, Government-aided or unaided.' (According to the these guidelines, it is stated, the students will be asked to pay 20% of the cost in Government funded institutions, 30-35% in Government-aided and 70% in unaided institutions). It is finally 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 is not warranted by the Constitution besides being unrealistic and impractical.

(b)When the Government grants recognition to private educational institutions it does not create an agency to fulfill its obligations under the Constitution and there is no scope to import the concept of agency in such a situation.

(c)The principles laid down in Mohini Jain's case do require reconsideration.

(d)It would be unrealistic and unwise to discourage private initiative in providing educational facilities particularly for higher education. The private sector should be involved and indeed encouraged to augment the much needed resources in the field of education, thereby making as much progress as possible in achieving the Constitutional goals in this respect.

674 (e)At the same time, regulatory controls have to be continued and strengthened in order to prevent private educational institutions from commercializing education.

(f)Regulatory measures should be maintained and strengthened so as to ensure that private educational institutions maintain minimum standards and facilities.

(g)Admissions within all groups and categories should be based on merit. There may be reservation of seats in favour of the weaker sections of the society and other groups which deserve special treatment. The norms for admission should be pre-determined and transparent."

The stand of the State Governments of Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu is no different.

61.The hard reality that emerges is that private educational institutions are a necessity in the present day context. It is not possible to do without them because the Governments are in no position to meet the demand particularly in the sector of medical and technical education which call for substantial outlays. While education is one of the most important functions of the Indian State it has no monopoly therein. Private educaitonal institutions including minority educational institutions too have a role to play.

62.Private educational institutions may be aided as well as un-aided. Aid given by the, Government may be cent per cent or partial. So far as aided institutions are concerned, it is evident, they have to abide by all the rules and regulations as may be framed by the Government and/or recognising/affiliating authorities in the matter of recruitment of teachers and staff, their conditions of service, syllabus, standard of teaching and so on. In particular, in the matter of admission of students, they have to follow the rule of merit and merit alone subject to any reservations made under Article 15. They shall not be entitled to charge any fees higher than what is charged in Governmental institutions for similar courses. These are and shall be understood to be the conditions of grant of aid. The reason is simple: public funds, when given as grant and not as loan carry the public character wherever they go; public funds cannot be donated for private purposes. The element of public character necessarily mean a fair conduct in all respects consistent with the constitutional mandate of Article 14 and 675

15.All the Governments and other authorities in charge of granting aid to educational institutions shall expressly provide for such conditions (among others), if not already provided, and shall ensure compliance with the same. Again aid may take several forms, For example, a medical college does necessarily require a hospital. We are told that for a 100 seat medical college, there must be a fully equipped 700-bed hospital. Then alone, the medical college can be allowed to function. A private medical college may not have or may not establish a hospital of its own. It may request the Government and the Government may permit it to avail of the services of a Government hospital for the purpose of the college free of charge. This would also be a form of aid and the conditions aforesaid have to be imposed may be with some relaxation in the matter of fees chargeable and observed. The Government (Central and State) and all other authorities granting aid shall impose such conditions forthwith, if not already imposed. These conditions shall apply to existing as well as proposed private educational institutions.

63.So far as un-aided institutions are concerned, it is obvious that they cannot be compelled to charge the same fee as is charged in Governmental institutions. if they do so voluntarily, it is perfectly welcome but they cannot be compelled to do so, for the simple reason that they have to meet the cost of imparting education from their own resources and the main source, apart from donations/charities, if any, can only be the fees collected from the students. It is here that the concepts of 'self- financing educational institutions' and 'cost-based educational institutions' come in. This situation presents several difficult problems. How does one determine the 'cost of education' and how and by whom can it be regulated? The cost of education may very, even within the same faculty, from institution to institution. The facilities provided, equipment, infrastructure, standard and quality of education obtaining may vary from institution to institution. The court cannot certainly do this. It must be done by Government or University or such other authority as may be designated in that behalf.

Even so, some questions do arise whether cost-based education only means running charges or can it take in capital outlay? Who pays or who can be made to pay for establishment, expansion and improvement/diversification of a private educational institutions? Can an individual or body of persons first collect amounts (by whatever name called) from the intending students and with those monies establish an institution an activity similar to builders of apartments in the cities? How much should 676 the students. coming in later years pay? Who should work out the economics of each institution? Any solution evolved has to take into account all these variable factors. But one thing is clear: commercialisation of education cannot and should not be permitted The Parliament as well as State Legislatures have expressed this intention in unmistakable terms. Both in the light of our tradition and from the stand-point of interest of general public, commercialisation is positively harmful; it is opposed to public policy. As we shall presently point out, this is one of the reasons for holding that imparting education cannot be trade, business or profession.

The question is how to encourage private educational institutions without allowing them to commercialise the education? This is the troublesome question facing the society, the government and the courts today. But before we proceed to evolve a scheme to meet this problem, it is necessary to answer a few other questions raised before us.

RIGHT TO ESTABLISH AN EDUCATIONAL INSTITUTION-

64.Article 19(1)(g) of the Constitution declares that all citizens of this country shall have the right "to practice any profession, or to carry on any occupation, trade on business". Clause (6) of Article 19, however, says:

"Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes or prevents the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said clause and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to or prevents the State from making any law relating to:

(i)the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or

(ii)carrying on by the State, or by a corporation owned or controlled by the State or any trade, business, industry or service whether to the exclusion, complete or partial, of citizens or otherwise.' While we do not with to express any opinion on the question whether 677 the right to establish an educational institution can be said to be carrying on any "occupation' within the meaning of Article 19(1)(g), perhaps, it is we are certainly of the opinion that such activity can neither be a trade or business nor can it be a profession within the meaning of Article 19(1)(g). Trade or business normally connotes an activity carried on with a profit motive. Education has never been commerce in this country. Making it one is opposed to the ethos, tradition and sensibilities of this nation. The argument to the contrary has an unholy ring to it. Imparting of education has never been treated as a trade or business in this country since times immemorial.

It has been treated as a religious duty. It has been treated as a charitable activity. But never as trade or business. We agree with Gajendragadkar, J. That "education in its true aspect is more a mission and a vocation rather than a profession or trade or business, however wide may be the denotation of the two latter words........ (See University of Delhi [1961] 1 SCR 703). The Parliament too has manifested its intention repeatedly (by enacting the U.G.C. Act, I.M.C. Act and A.I.C.T.E. Act) that commercialisation of education is not permissible and that no person shall be allowed to steal a march over a more meritorious candidate because of his economic power. The very game intention is expressed by the Legislatures of Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu in the Preamble to their respective enactments prohibiting charging of capitation fee.

65.We are, therefore, of the opinion, adopting the line of reasoning in State of Bombay v. R.M.D.C, 1957 S.C.R. 874, that imparting education cannot be treated as a trade or business. Education cannot be allowed to be converted into commerce nor can the petitioners seek to obtain the said result by relying upon the wider meaning of 'occupation'. The content of the expression "occupation" has to be ascertained keeping in mind the fact that clause (g) employs all the four expressions viz., profession, occupation, trade and business. Their fields may overlap, but each of them does certainly have a content of its own, distinct from the others. Be that as it may, one thing is clear imparting of education is not and cannot be allowed to become commerce. A law, existing or future, ensuring against it would be a valid measure within the meaning of clause (6) of Article 19. We cannot, therefore, agree with the contrary proposition enunciated in 1968 Bombay 91, 1984 A.P. 251 and 1986 Karnataka 119.

678 66.The learned counsel for the petitioners relied upon certain decisions in support of their contention that right to establish an educational institution flows from Article 19(1)(g). The first is in Bharat Sevashram Sangh v. State of Gujarat [1986] 3 S.C.R. 602, a decision of a Bench consisting of E.S. Venkataramiah and Ranganath Misra, JJ. At page 609, while dealing with Section 33 of the Gujarat Secondary Education Act empowering the Government to take over an educational institution in certain situations for a period not exceeding five years, the teamed Judges observed that "the said provision is introduced in the interest of the general public and does not in any way affect prejudically the fundamental right of the management guaranteed under Article 19(1)(g) of the Constitution." Actually, the issue now before us was not raised or considered in the said decision. Moreover, the decision does not say whether it is a profession, occupation, trade or business.

Reliance is then placed upon the Seven Judge Bench decision in Bangalore Water Supply and Sewerage Board v. Rajappa, [1978] 3 S.C.R. 207. Krishna Iyer, J. dealing with the meaning of the expression "industry" in I.D. Act observed that even educational institutions would fall within the purview of "Industry". We do not think the said observation in a different context has any application here. So far as the other decision in State of Maharashtra v. Lok Shikshan Sanstha, [1971] Suppl. S.C.R. 879 is concerned, all that the court held there was that is view of the operation of emergency, Article 19 is not available to the petitioners seeking to establish an educational institution. Article 358 was held to be a bar. But the decision does not say that such a right does inhere in the petitioners.

67.We are also of the opinion that the said activity cannot be called a 'profession' within the meaning of Article 19(1)(g). It is significant to notice the words "to practice any profession. Evidently, the reference is to such professions as may be practised by citizens i.e., individuals. (See N.U.C Employees v. Industrial Tribunal, A.I.R. 1962 S.C. 1080 at 1085). Establishing educational institutions can by no stretch of imagination be treated as 'practising any profession'. Teaching may be a profession but establishing an institution employing teaching and non- teaching staff, procuring the necessary infrastructure for running a school or college is 679 not 'practising profession'. It may be anything but not practising a profession. We must make it clear that we have not gone into the precise meaning an content of the expressions profession, occupation, trade or business for the reason that it is not necessary for us to do so-in view of the approach we are adopting hereinafter, which would be evident from the succeeding paragraphs. Our main concern in the entire preceding discussion is only to establish that the activity of establishing and/or running an educational institution cannot be a matter of commerce.

68.For the purpose of these cases, we shall proceed on the assumption that a person or body of persons has a right to establish an educationtal institution in this country. But this right, we must make it clear, is not an absolute one. It is subject to such law as may be made by the State in the interest of general public.

69.We must, however, make it clear, and which is of crucial importance herein, that the right to establish an educationcal institution does not carry with it the right to recognition or the right to affiliation. In St. Xaviers College v. Gujarat, [1975] 1 S.C.R. 173 it has been held uniformly by all the nine learned Judges that there is no fundamental right to affiliation. Ray, C.J., stated that this has been "the consistent view of this court." They also recognised that recognition or affiliation is essential for a meaningful exercise of the right to establish and administer educational institutions. Recognition may be granted either by the Government or any other authority or body empowered to accord recognition. Similarly, affiliation may be granted either by the University or any other academic or other body empowered to grant affiliation to other educational institutions. In other words, it is opento a person to establish an educational institution, admit students, imparteducation, conduct examination and award certificates to them. But he,or the educational institution has no right to insist that the certificates ordegree (if they can be called as such) awarded by such institution should be recognised by the State much less have they the right to say that the students trained by the institution should be admitted to examinations conducted by the University or by the Government or any other authority, as the case may be.

The institution has to seek such recognition or affiliation from the appropriate agency. Grant of recognition and/or affiliation is not a matter of course nor is it a formality. Admission to the privileges of a University is a power to be exercised with 680 great care, keeping in view the interest of the general public and the nation. it is a matter of substantial significance the very life-blood of a private educational institution. Ordinarily speaking, no educational institution can run or survive unless it is recognised by the Government or the appropriate authority and/or is affiliated to one or the other Universities in the country. Unless it is recognised and/or affiliated as stated above, it's certificates will be of no use. No one would join such educational institution. As a matter of fact, by virtue of the provisions of the U.G.C. Act, noticed hereinabove, no educational institution in this country except a University is entitled to award degrees. It is for this reason that all the private educational institutions seek recognition and/or affiliation with a view to enable them to send the students trained by them to appear at the examinations conducted by the Government/University.

The idea is that if such students pass the said examination, the Government/University will award its degree/diploma/cer- tificate to them. These educational institutions follow the syllabus prescribed by the Government/University, have the same courses of study, follow the same method of teaching and training. They do not award their own degrees/qualifications. They prepare their students for University/Government examinations, request the University/Government to permit them to appear at the examinations conducted by them and to award the appropriate degrees to them'. Clearly and indubitably, the recongnised/affiliated private educational institutions, supplement the function performed by the institutions of the State. Theirs is not an independent activity but one closely allied to and supplemental to the activity of the State. In the above circumstances, it is idle to contend that imparting of education is a business like any other business or that it is an activity akin to any other activity like building of roads, bridges etc. In short the position is this. No educational institution except an University can award degrees (Sections 22 and 23 of the U.G.C.

Act). The private educational institutions cannot award their own degrees. Even if they award any certificates or other testimonials they have no practical value inasmuch as they are not good for obtaining any employment under the State or for admission into higher courses of study. The private educational institutions merely supplement the effort of the State in educating the people, as explained above. It is not an independent activity. It is an activity supplemental to the principal activity carried on by the State. No private education institution can survive or subsist without recognition and/or 681 affiliation. The bodies which grant recognition and/or affiliation are the authorities of the State. In such a situation, it is obligatory in the interest of general public upon the authority granting recognition or affiliation to insist upon such conditions as are appropriate to ensure not only education of requisite standard but also fairness and equal treatment in the matter of admission of students. Since the recognising/affiliating authority is the 'State' it is under an obligation to impose such conditions as part of its duty enjoined upon it by Article 14 of the Constitution.

It cannot allow itself or its power and privilege to be used unfairly. The incidents attaching to the main activity attach to supplemental activity as well. Affiliation/recognition is not there for anybody to get it gratis or unconditionally. In our opinion, no Government, authority or University is justified or is entitled to grant recognition/affiliation without imposing such conditions. Doing so would amount to abdicating its obligations enjoined upon it by Part III; its activity is bound to be characterised as unconstitutional and illegal. To reiterate,, what applies to the man activity applies equally to supplemental activity. The State cannot claim immunity from the obligations arising from Articles 14 and 15. If so, it cannot confer such immunity upon its affiliates. Accordingly, we have evolved with the help of the counsel appearing before us and keeping in view the positive features of the several Central and State enactments refeffred to hereinbefore the following scheme which every authority granting recognition/affiliation shall impose upon the institutions seeking such recognition/affiliation.

The idea behind the scheme is to eliminate discretion in the management altogether in the matter of admission. It is the discretion in the matter of admission that is at the root of the several ills complained of It is the discretion that has mainly led to the commercialisation of education. 'Capitation fee' means charging or collecting amount beyond what is permitted by law; all the Acts have defined this expression in this sense. We must strive to bring about a situation where there is no room or occasion for the management or anyone on its behalf to demand or collect any amount beyond what is permitted. We must clarify that charging the permitted fees by the private educational institutions which is bound to be higher than the fees charged in similar governmental institutions by itself cannot be characterised as capitation fees. This is the policy underlying all the four States enactments prohibition capitation fees. All of them recognise the necessity of charging higher fees by private educational institutions.

682 They seek to regulate the fees that can be charged by them which may be called permitted fees and to bar them from collecting anything other than the permitted fees, which is what 'Capitation fees' means. Our attempt in evolving the following scheme precisely is to given effect to the said legislative policy. It would be highly desirable if this Scheme is given a statutory shape by incorporating it in the Rules that may be framed under these enactments.

SCHEME

70.The scheme evolved herewith is in the nature of guidelines which the appropriate Governments and recognising and affiliating authorities shall impose and implement in addition to such other conditions and stipulations as they may think appropriate as conditions for grant of permission, grant of recognition or grant of affiliation, as the case may be. We are confining the scheme for the present only to 'professional colleges.' The expression Professional colleges' in this scheme includes:

(i) medical colleges, dental colleges and other institutions and colleges imparting Nursing, Pharmacy and other courses allied to Medicine, established and/or run by private education institutions,

(ii)colleges of engineering and colleges and institutions imparting technical education including electronics, computer sciences, established and/or run by private educational institutions, and

(iii)such other colleges to which this scheme is made applicable by the Government, recognising and/or affiliating authority."

The expression "appropriate authority" means the Government, University or other authority as is competent to grant permission to establish or to grant recognition to a professional college.

The expression 'competent authority' in this scheme means the Government/University or other authority, as may be designated by the Government/University or by law, as is competent to allot students for admission to various professional colleges in the given State.

683 It is made clear that only those institutions which seek permission to establish and/or recognition and/or affiliation from the appropriate authority shall alone be made bound by this scheme. This scheme is not applicable to colleges run by Government or to University colleges. In short, the scheme hereinafter mentioned shall be made a condition of permission, recognition or affiliation, as the case may be. For each of them viz., grant of permission, grant of recognition, grant of affiliation, these conditions shall necessarily be imposed, in addition to such other conditions as the appropriate authority may think appropriate. No Private educational institutaion shall be allowed to send its students to appear for an examination held by any Government or other body constituted by it or under any law or to any examination held by any University unless the concerned institution and the relevant course of study is recognised by the appropriate authority and/or is affiliated to the appropriate University, as the case may be.

(1)A professional college shall be permitted to be established and/or administered only by a Society registered under the Societies Registration Act, 1860 (or the corresponding Act, if any, in force in a given State), or by a Public Trust, religious or charitable, registered under the Trusts Act, Wakfs Act (or the corresponding legislation, if any, e.g., Tamil Nadu Religious and Charitable Endowments Act and A.P. Religious and Charitable Endowments Act). No individual, firm, company or other body of individuals, by whatever appellation called except those mentioned above will be permitted to establish and/or administer a professional college. All the existing professional colleges which do not conform to the above norm shall be directed to take appropriate steps to comply with the same within a period of six months from today. In default whereof, recognition/affiliation accorded shall stand withdrawn. (In this connection reference may be had to Rule 86(2) of Maharashtra Grant-in-aid code (referred to in State of Maharashtra v. Lok Shikshan Sanstha, [1971] Suppl. S.C.R. 879 which provided that schools which are not registered under the Societies Registration Act, shall not be eligible for grant. Grant of recognition and affiliation is no less significance).

(2)Atleast, 50% of the seats in every professional college shall be filled by the nominees of the Government or University, as the case may be, hereinafter referred to as "free seats". These students shall be selected on the basis of merit determined on the basis of a common entrance 684 examination where it is held or in the absence of an entrance examination, by such criteria as may be determined by the competent authority or the appropriate to authority, as the case may be. It is, however, desirable and appropriate have a common entrance exam for regulating admissions to these colleges/institutions, as is done in the State of Andhra Pradesh. The remaining 50% seats (payment seats) shaft be filled by those candidates who are prepared to pay the fee prescribed therefor and who have complied with the instructions regarding deposit and furnishing of cash security/Bank guarantee for the balance of the amount. The allotment of students against payment seats shall also be done on the basis of inter se merit determined on the same basis as in the case of free seats. There shall be no quota reserved for the management or for any family, caste or community which may have established such college. The criteria of eligibility and all other conditions shall be the same in respect of both free seats and payment seats. The only distinction shall be the requirement of higher fee by the 'payment students'. The Management of a professional college shall not be entitled to impose or prescribe any other and further eligibility criteria or condition for admission either to free seats or to payment seats. It shall, however, be open to a professional college to provide for reservation of seats for constitutionally permissible classes with the approval of the affiliating University. Such reservations, if any, shall be made and notified to the competent authority and the appropriate authority atleast one month prior to the issuance of notification @ for applications for admission to such category of colleges. In such a case, the competent authority shall allot students keeping in view the reservations provided by a college. The rule of merit shall be followed even in such reserved categories.

(3)The number of seats available in the professional colleges (to which this scheme is made applicable) shall be fixed by the appropriate authority. No professional college shall be permitted to increase its strength except under the permission or authority granted by the appropriate authority.

(4)No professional college shall call for applications for admission separately or individually. AD the applications for admission to all the seats available in such,colleges shall be called for by the competent authority alone, along with applications for admission to Government/University colleges of nature. For example, there shall be only one notification 685 by the competent authority calling for applications for all the medical colleges in the State and one notification for all the engineering colleges in the State and so on. The application forms for admission shall be issued by the competent authority (from such offices, centres and places as he may direct). The application form shall contain a column or a separate part wherein an applicant can indicate whether he wishes to be admitted against a payment seat and the order of preference, up to three professional colleges. (5)Each professional college shall intimate the competent authority, the State Government and the concerned University in advance the fees chargeable for the entire course commencing that academic year. The total fees shall be divided into the number of years/semesters of study in that course.

In the first instance, fees only for the first year/semester shall be collected. The payment students will be, however, required to furnish either cash security or bank grantee for the fees payable for the remaining years/semesters. The fees chargeable, in each professional college shall be subject to the ceiling prescribed by the appropriate authority or by a competent Court. The competent authority shall issue 'a brochure, on payment of appropriate charges, along with the application form for ad- mission, giving full particulars of the courses and the number of seats available, the names of the colleges their location and also the fees chargeable by each professional college. The brochure win also specify the minimum eligibility conditions, the method of admission (whether by entrace test or otherwise) and other relevant particulars. (6)(a) Every State Government shall forthwith constitute a Committee to fix the ceiling on the fees chargeable by a professional college or class of professional colleges, as the case may be. The Committee shall consist of a Vice- Chancellor, Secretary for Education (or such Joint Secretary, as he may nominate) and Director, Medical Education/Director Technical Education.

The committee shall make such enquiry as it thinks appropriate. It shalt however, give opportunity to the professional colleges (or their association(s), if any) to place such material, as they think fit. It shall, however, not be bound to give any personal hearing to anyone or follow any technical rules of law. The Committee shall fix the fee once every three years or at such longer intervals, as it may think appropriate.

(b) It would be appropriate if the U.G.C. frames regulations under 686 Section 12A (3) of the U.G.C. Act, regulating the fees which the affiliated colleges, operating on no-grant-in-aid basis, are entitled to charge. The Council for Technical Education may also consider the advisability of issuing directions under Section 10 of the A.I.C.T.E. Act regulating the fees that may be charged in private unaided educational institutions imparting technical education. The Indian Medical Council and Central government may also consider the advisability of such regulation as a condition for grant of permission to new medical colleges under Section 10-A and to impose such a condition on existing colleges under Section 10-C.

(c)The several authorities mentioned in sub-paras (a) and ((1) shall decide whether a private educational institution is entitled to charge only that fee as is required to run the college or whether the capital cost involved in establishing a college can also be passed on to the students and if so, in what manner. Keeping in view the need, the interest of general public and of the nation, a policy decision may be taken. It would be more appropriate if the Central Government and these several authorities (U.G.C., I.M.C. and A.I.C.T.E.) cordinate their efforts and evolve a broadly uniform criteria in this behalf. Until the Central Government, U.G.C., I.M.C. and A.I.C.T.E. issue order/regulations in this behalf, the committee referred to in the sub-para (a) of this para shall be operative. In other words, the working and orders of the committee shall be subject to the orders/regulations, issued by Central Government, U.G.C., I.M.C. or A.I.C.T.E., as the case may be.

(d)We must hasten to add that what we have said in this clause is merely a reiteration of the duty nay, obligation placed up on the Governments of Andhra Pradesh, Maharashtra, Karnataka and Tamil Nadu by their respective legislatures to wit, Section 7 of Andhra Pradesh Act 5 of 1983, Section 4 of Maharashtra Act 6 of 1988, Section 5 of Karnataka Act of 1984 and Section 4 of Tamil Nadu Act 57 of 1992. Other States too may have to have similar provisions, carrying statutory force.

(7)Any candidate who fulfils the eligibility conditions would be entitled to apply for admission. After the free seats in professional colleges are filled up, atleast 10 days' time will be given to the candidates (students) to opt to be admitted against payment seats. The candidates shall be entitled to indicate their choice for any three colleges (if available). In such a case, he shall comply with the deposit and cash security/Bank guarantee 687

- taking the institution charging the highest fees as the basis within the said period of ten days. If he is admitted in an institution, charging less fee, the difference amount shall be refunded to him. (The cash security or Bank guarantee shall be in favour of the competent authority, who shall transfer the same in favour of the appropriate college if that student is admitted).

(8)The results of the entrance examination, if any, held should be published atleast in two leading newspapers, one in English and the other in vernacular. The payment candidates shall be allotted to different professional colleges on the basis of merit-cum-choice. The allotment shall be made by the competent authority. A professional college shall be bound to admit the students so allotted. The casual vacancies or unfilled vacancies, if any, shall also be filled in the same manner. The management of a professional college shall not be permitted to admit any student other than the one allotted by the competent authority whether against free seat or payment seat, as the case may be. It is made clear that even in the matter of reserved categories, if any, the principle of inter se merit shall be followed. All allotments made shall be published in two leading newspapers as aforesaid and on the notice boards of the respective colleges and at such other places as the comptent authority may direct, along with the marks obtained by each candidates in the relevant entrance test or qualifying examination, as the case may be. No professional college shall be entitled to ask for any other or further payment or amount, under whatever name it may be called, from any student allotted to it whether against the free seat or payment seat.

(9)After making the allotments, the competent authority shall also prepare and publish a waiting list of the candidates along with the marks obtained by them in the relevant test/examination. The said list shall be followed for filling up any casual vacancies or 'drop-out'-vacancies arising after the admissions are finalised. These vacancies shall be filled until such date as may be prescribed by the competent authority. Any vacancies still remaining after such date can be filled by the Management.

It is made clear that it shall be open to the appropriate authority and the competent authority to issue such further instructions or directions, as they may think appropriate not inconsistent with this scheme, by way of elaboration and elucidation.

The scheme shall apply to and govern the admissions to professional 688 colleges commencing from the academic year 1993-94. We are aware that until the commencement of the current academic year, the Andhra Pradesh was following a somewhat different pattern in the matter of filling the seats in private unaided engineering colleges. Though all the available seats were being filled by the allottees of the Convenor (State) and the managements were not allowed to admit any student on their own a uniform fee was collected from all the students. The concepts of 'free seats' and 'payment seats' were therefore not relevant in such a situation all were payment seats only. We cannot say that such a system is constitutionally not permissible. But our idea in devising this scheme has been to provide more opportunities to meritorious students, who may not be able to pay the enhanced fee prescribed by the government for such colleges. The system devised by us would mean correspondingly more financial burden on payment students whereas in the aforesaid system (in vogue in Andhra Pradesh) the financial burden is equally distributed among, all the students. The theoretical foundation for our method is, that a candidate/student who is stealing a march over his compatriot on account of his economic power should be made not only to pay for himself but also to pay for another meritorious student. This is the social justification behind the fifty per cent rule prescribed in clause (2) of this scheme. In the interest of uniformity and in the fight of the above social theory, we direct the State of Andhra Pradesh to adhere to the system derived by us.

71.In view of the above, we do not think it necessary to go into or answer Question No. 3. In our opinion, the said question requires debate in a greater depth and any expression of opinion thereon at this juncture is not really warranted.

PART IV VALIDITY OF SECTION 3-A OF THE ANDHRA PRADESH EDUCATIONAL INSTITUTIONS (REGULATION OF ADMISSION AND PROHIBTION OF CAPITATION FEE) ACT 1983.

72.Section 3-A of the aforesaid Act, as introduced by the Andhra Pradesh Amendment Act 12 of 1992, read as follows:

"Notwithstanding anything contained in Section 3, but subject to such rules as may be made in this behalf and the 689 Andhra Pradesh Educational Institutions (Regulation of admission) Order, 1974, it shall be lawful for the management of any unaided private engineering college, medical college, dental college and such other class of unaided educational institutions as may be notified by the Government in this behalf to admit students into such colleges or educational institutions to the extent of one half of the total number of seats from among those who have qualified in the common entrance test or in the qualifying examina- tion, as the case may be, referred to in sub- section (1) of Section 3 irrespective of the ranking assigned to them in such test or examination and nothing contained in Section 5 shall apply to such admissions."

A Full Bench of the Andhra Pradesh High Court has struck it down as being violative of Article 14 of the Constitution and also on the ground of repugnancy with Section 12-A of the University Grants Commission Act, 1956 Kranti Sangram Parishad v. Sri N.J. Reddy, (1992) 3 A.L.T. 99. The correctness of the said decision is assailed before us.

73.This Section is in truth, in the nature of an exception to the other provisions of the Act. It says that notwithstanding anything contained in Section 3, but subject to the rules as may be framed by the Government in this behalf, the private educational institutions of the nature mentioned therein, shall be entitled to admit students to the extend of half the number of seats from among those who have qualified in the common entrace test or the qualifying examination, as the case may be. This statement is accompanied by two significant features viz., (1) admission of such students could be irrespective of the ranking assigned to them to the common entrance test or other qualifying examination, as the case may be; and (2) it is made clear that nothing contained in Section 5 shall apply to such admissions. The Section is, thus, an exception to Section 3, 5. Section 3, it may be remembered, provides that admissions have to be made, to all categories, strictly in accordance with merit. The section, read as a whole, leads to the following consequences:

(a)It is open to the private educational institutions to charge as much amount as they can for admission. It will be a matter of bargain between the institution and the student seeking admission.

690 (b)The admission can be made without reference to inter-se merit of paying candidates. The institution will be entitled to pick and choose the candidates among the applicants on such considerations as it may deem fit.

(c)Section 5, which prohibtis collection of capitation fee by an education institutions, is expressly made inapplicable to such admissions. This is not without a purpose. The purpose is to permit the institutions to charge as much as they can in addition to the collection of the prescribed tuition fee.

74.We have held hereinbefore that the educational activity of the private educational institutions is supplemental to the main effort by the State and that what applies to the main activity applies equally to the supplemental activity as well. If Article 14 of the Constitution applies as it does, without a doubt to the State institutions and compels them to admit students on the basis of merit and merit alone (subject, of course, to any permissible reservations wherein too, merit inter-se has to be followed) the applicability of Article 14 cannot be excluded from the supplemental effort/activity. The State Legislature had, therefore, no power to say that a private educational institution will be entitled to admit students of its choice, irrespective of merit or that it is entitled to charge as much as it can, which means a free hand for exploitation and more particularly, commercialisation of education, which is impermissible in law. No such immunity from the constitutional obligation can be claimed or conferred by the State Legislature. On this ground alone, the Section is liable to fail.

In the circumstances, it is not necessary for us to go into the question whether the section is bad on account of repugnancy with Section 12-A of the University Grants Commission Act. It is enough to say that the said section falls foul of Article 14 for the reasons given above the must accordingly fail. We agree that the offending portions of Section 3-A cannot be severed from the main body of the section and, therefore, the whole section is liable to fall to the ground.

It is not brought to our notice that the enactments of other three States viz., Karnataka, Tamil Nadu and Maharashtra contain similar offending provisions. Indeed, they do not. None of their provisions says that, the Management of a private educational institution can admit students, against "payment seats", "irrespective of the ranking assigned to them in 691 such test (entrance test) or examination." Much less do they say that to such admissions, the provision prohibiting capitation fee shall not apply. True, they do not say expressly that such admissions shall be made on the basis of merit, but that, according to us, is implicit. If the notifications or order issued thereunder provide otherwise, either expressly or by implication, they would be equally bad for the reason given above.

75.Once Section 3-A is struck down, the question arises as to what should happen to the students who were admitted by the Private Engineering Colleges in this State, at their own discretion, to the extent of the 50% of the available seats. The High Court has invalidated these admissions but they are continuing now by virtue of the orders of stay granted by this Court. A fact which must be kept in mind in this behalf is this: Until the previous year, the Government of Andhra Pradesh has been permitting these private engineering colleges to collect a higher fees from all the students allotted to them. (We are told that the fees permitted to be collected was Rs. 10,000 per annum for the previous year). Of course, all the available seats were filled up by students allotted by the convenor of the common entrance exam; no one could be admitted by these colleges on their own. Now, for the current year, these colleges admitted 50% of the students in their own discretion which necessarily means collection of capitation andior arbitrary admissions for their own private reasons. At the same time, these colleges have been collecting the same fees (Rs. 10,000 per annum) both from the students allottee by the convenor as also from those admitted by themselves. Thus they have reaped a double advantage.

76.It is submitted by Shri Shanti Bhushan the learned counsel for these students that they were innocent parties and had obtained admission in a bona fide belief that their admissions were being made properly. They have been studying since them and in a few months their academic year will come to a close. May be, the managements were guilty of irregularity, he says, but so far as the students are concerned they have done nothing contrary to law to deserve the punishment awarded by the Full Bench of the High Court.

77.It is true. as pointed out by the High Court that these admissions were made in a hurry but the fact remains that they have been continuing in the said course under the orders of this Court over the last about four months. As stated hereinbefore, the present situation has been brought 692 about by a combination of circumstances, namely the enactment of Section 3-A, the allotment of students to the extent of 50% only by the convenor and the failure of the Government to immediately rectify the misunderstanding of the convenor. In the circumstances we are not satisfied that these students should be sent out at this stage. May be, the result is rather unfortunate but we have to weigh all the relevnt circumstances. At the same time we are of the opinion that the managements of these private engineering colleges should not be allowed to walk away with the double advantage referred to above. Since they have admitted students of their own choice to the extent of 50% and also because it is not possible to investigate or verify for what consideration those admissions were made, we think it appropriate to direct that these colleges should charge only that fee from the 50% 'free students' as is charged for similar courses in the concerned university engineering colleges. For the remaining years of their course these colleges shall collect only the said fee, which for the sake of convenience may be called the 'government fee'. The balance of the amount which they have already collected during this year shall be remitted into the Government account within six weeks from today, in default whereof the recognition and affiliation given to these colleges shall stand withdrawn. In other words whichever college fails to comply with the above direction it will stand disaffiliated on the expiry of six weeks from today and the recognition granted to it, if any, by any appropriate authority shall also stand withdrawn.

78.So far as Writ Petition 855 of 1992 is concerned, it complains of charging of double the tuition fee is case of students coming from outside the Maharashtra. The matter stand concluded against the petitoners by a decision of a Constitution Bench of this Court in D.P. Joshi v. State of Madhya Pradesh, [1955] 1 SCR 1215. This Writ Petition is accordingly dismissed.

79.Coming to Civil Appeal No. 3573 of 1992 filed by Mahatma Gandhi Mission, we are inclined, in all the facts and circumstances of the case to stay the operation of the impugned order which is only an interlocutory order effective till the disposal of the main Writ Petition. Writ Petition may be disposed of according to law and in the light to this Judgment.

693 PART V

80. For the above reasons the Writ Petitions and Civil Appeals except (W.P. (C) 855/92, C.A. 3573/92 and the Civil Appeals arising from S.L.Ps. 13913 and 13940/92) are disposed of in the following terms:

1. The citizens of this country have a fundamental right to education. The said right flows from Article 21. This right is, however, not an absolute right. Its content and para meters have to be determined in the light of Articles 45 and 41. In other words every child/citizen of this country has a right to free education until he completes the age of fourteen years. Thereafter his right to education is subject to the limits of economic capacity and development of the State.

2. The obligations created by Articles, 41, 45 and 46 of the Constitution can be discharged by the State either by establishing institutions of its own or by aiding, recognising and/or granting affiliation to private educa-

tional institutions. Where aid is not granted to private educational institutions and merely recognition or affiliation is granted it may not be insisted that the private education institution shall charge only that fee as is charged for similar courses in governmental institutions. The private educational institutions have to and are entitled to charge a higher fee, not exceeding the ceiling fixed in that behalf. The admission of students and the charging of fee in these private educational institutions shall be governed by the scheme evolved herein set out in Part III of this Judgment.

3. A citizen of this country may have a right to establish an educational institution but no citizen, perosn or institution has a right much less a fundamental right, to affiliation or recognition, or to grant-in-aid from the State. The recognition and/or affiliation shall be given by the State subject only to the conditions set out in, and only accordance with the scheme contained in Part III of this Judgment. No Government/University or authority shall be competent to grant recognition or affiliation except in accordance with the said scheme. The said scheme shall constitute a condition of such recognition or affiliation, as the case may be, in addition to such other conditions and terms which such Government, University or other authority may choose to impose.

Those receiving aid shall however, be subject to all such terms and 694 conditions, as the aid giving authority may impose in the interest of general public.

4. Section 3-A of the Andhra Pradesh Educational Institutions (Regulation of Admission And Prohibition of Capitation Fee) Act, 1983 is violative of the equality Clause enshrined in Article 14 and is accordingly declared void. The declaration of the Andhra Pradesh High Court in this behalf is affirmed.

5. Writ Petition No. 855 of 1992 is dismissed. Civil Appeal No. 3573 of 1992 is allowed and the impugned order is set aside. The main Writ Petition wherein the said interim order has been passed may now be disposed of according to law.

6. Civil Appeals arising from S.L.Ps. 13913 and 13940/92 (preferred by students who were admitted by private unaided engineering colleges in Andhra Pradesh, without an allotment from the convenor of the common entrance examination) are allowed. The students so admitted for the academic year 1992-93 be allowed to continue in the said course but the management shall comply with the directions given in para 77 hereinabove.

MOHAN, J. I have had the advantage of perusing the judgment of my learned brother Justice B.P. Jeevan Reddy. Though, I am in agreement with his conclusion, I would like to give my own reasonings. Since my learned brother has set out the facts, I will confine myself to answering the three questions, namely:

1. Whether the Constitution of India guarantees a fundamental right to education to its citizens?

2. Whether there is a fundamental right to establish an educational institution under Article 19(1)(g)?

3. Does recognition or affiliation make the educational institution an instrumentality?

All the these matters raise a burning issue; as to how to put an end to the evil of capitation fee or at least to regulate it.

As a prelude, the importance of education may be set out.

695 The immortal Poet Valluvar whose Tirukkural will surpass all ages and transcend all religions said of education:

"Learning is excellence of wealth that none destroy; To man nought else affords reality of joy."

Therefore, the importance of education does not require any emphasis.

The fundamental purpose of Education is the same at all times and in all places. It is to transfigure the human personality into a pattern of perfection through a synthetic 'process of the development of the body, the enrichment of the mind, the sublimation of the emotions and the illumina- tion of the spirit. Education is a preparation for a living and for life, here and hereafter.

An old Sanskrit adage states: "That is Education which leads to liberation" liberation from ignorance which shrouds the mind; liberation from superstition which paralyses effort, liberation from prejudices which bring the Vision of the Truth.

In the context of a democratic form of government which depends once a social and political necessity. Even several decades ago, our leaders harped upon universal primary education as a desideratum for national progress. It is rather sad that in this great land of ours where knowledge first lit its torch and where the human mind soared to the highest pinnacle of wisdom, the percentage of illiteracy should be appalling. Today, the frontiers of knowledge are enlarging with incredible swiftenss. The foremost need to be satisfied by our education is, therefore, the eradication of illiteracy which persists in a depressing measure, Any effort taken in this direction of be deemed to be too much.

Victories are gained, peace is preserved, progress is achieved, civilization is build up and history is made not on the battle-fields where ghastly murders are committed in the name of patriotism, not in the Council Chambers where insipid speeches are spun out in the name of debate, not even in factories where are manufactured novel instruments to strangle life, but in educational institutions which are the seed-beds of culture, where children in whose hands quiver the destinies of the future, 696 are trained From their ranks will come out when they grow up, statesmen and soldiers, patriots and philosophers, who will determine the progress of the land.

The importance of education has come to be recognised in various judicial decisions.

In Oliver Brown v. Board of Education of Topeka, U.S. Supreme Court Reports 98 Law. Ed. U.S. 347 at page 880 it was observed:

"Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him t o adjust normally to his environment."

Various fundamental rights enumerated under Part III of our Constitution can be divided into two classes.

1. Injuction restraining the State from denying certain fundamental rights like Articles 14 and 21.

2. A positive conferment of such fundamental rights under Articles 19, 25 and 26 etc. In this connection, the following passage from Addl. Dist. Magistrate v. S.S. Shuukla, [1976] Supp. SCR 172 @ 229-230 may be quoted:

"Part III of our Constitution confers fundamental rights in positive as well as in negative language. Article 15(1), 16(1) 9 22(2), 22(5), 25(1), 26, 29(1), 30 and 32(1) can be described to be Articles in positive language. Articles 14, 15(2), 16(2), 20, 21, 22(1), 22(4), 27, 28(1), 29(2), 31(1) and (2) are in negative language. It is apparent that most categories of fundamental rights are in positive as well as 697 in negative language. A fundamental right couched in negative language accentuates by reason thereof the importance of that right. The negative language is worded to emphasise the immunity from State action as a fundamental right. (See The State of Bihar v. Maharajadhuraja Sir Kameshwar Singh of Darbhanga and Ors.) These fundamental rights conferred by our Constitution have taken different forms. Some of these fundamental rights are said to have the texture of Basic Human Rights (See A.K Gopalan's case (supra) at pp. 96-97, 248-293 and Bank nationalisation case (Supra) at pp. 568-71, 576-78)."

Article 21 reads as follows:

"Perfection of life and personal liberty:- No person shall be deprived of his life or personal liberty except according to procedure established by law."

It would be clear that it acts as a shield against deprivation of fife or personal liberty.

A question may be asked as to why it did not positively confer a fundamental right to life or personal liberty like Article 19. The reason is, great concepts like liberty and life were purposefully left to gather meaning from experience. They relate to the whole domain of social and economic fact. The drafters of. this Constitution knew too well that only a stagnant society remains uncharged. Unlike such rights as required to be enumerated it has long been recognised that the individual shall have full protection in person. It is a principle as old as law. However, it has been found necessary from time to time to define a new the exact nature and the extent of such protection. Political social and economic changes entail the recognition of new rights and the law in its eternal youth grows to meet the demands of society. The right to life and liberty inhere in every man. There is no need to provide for the same in a positive manner.

While dealing with the scope of Article 21 it was observed in Maneka Gandhi v. Union of India, AIR 1978 597 @ 620-21 that:

"It is obvious that Art. 21, though couched in negative 698 language, confers the fundamental right to life and personal liberty. So far as the right personal liberty is concerned, it is ensured by providing that no one shall be deprived of personal liberty except according to procedure prescribed by law. The first question that arises for consideration on the language of Art. 21 is: what is the meaning and content of the words 'personal liberty' as used in this Article? This question incidentally came up for discussion in some of the judgments in A.K Gopalan v. State of Madras, [1950] SCR 88 : (AIR 1950 SC 27) and the observations made by Patanjali Sastri, J., Mukherjee, J. and S.R. Das, J. seemed to place a narrow interpretation on the words 'personal liberty' so as to confine the protection of Art. 21 to freedom of the person against unlawful detention. But there was no definite pronouncement made on this point since the question before the Court was no so much the interpretation of the words 'personal liberty, as the inter-relation between Arts. 19 and 21. It was in Kharak Singh v. State of UP., [1964] 1 SCR 332; (AIR 1963 SC 1295) that the question as to the proper scope and meaning of the expression 'personal liberty' came up pointedly for consideration for the first time before this Court. The majority of the Judges took the view 'that 'personal liberty' is used in the article as a compendious term to include within itself all the varieties of rights which go to make up the 'personal liberties' of man other than those dealt with in the several clauses of Art. 19(1). In other words, while Art. 19(1) deals with particular species of attributes of that freedom, 'personal libertyin Art. 21 takes in and comprises the residue". The minority Judges, however, disagreed with this view taken by the majority and explained their position in the following words:

"No doubt the expression 'personal liberty' is a comprehensive one and the right to move freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and therefore the expression 'personal liberty' in Art. 21 excludes that attribute. In our view, this is not a correct approach. Both 699 are independent fundamental rights, though there is overlapping. There is no question of one being carved out of another. The fundamental right of fife and personal liberty has many attributes and some of them are found in Art. 19. If a person's fundamental right under Art. 21 is infringed, the State can rely upon a law to sustain the action, but that cannot be a complete answer unless the said law satisfies the test laid down in Art. 19(2) so far as the attributes covered by Art. 19(2) so far as the attributes covered by Art. 19(1) are concerned."

There can be no doubt that in view of the decision of this Court in R. C. Cooper v.

Union of India, [1970] 3 SCR 530: (AIR 1970 SC

564) the minority view must be regarded as correct and the majority view must be held to have been overruled."(Emphasis supplied) Therefore, it is not correct to state that because the article is couched in a negative language, positive rights to life and liberty are not conferred as argued by Mr. Tarkunde, learned counsel.

This Court in Choarak Singh v. State of U.P., 119641 1 SCR 332, (345, 347 and 349) interpreted the word "liberty" on the lines of the meaning accorded to liberty in the 5th and 14th amendments to the U.S. Constitution by in Munshi v. Illuonis, [1877] 94 U.S. 113. Accordingly it was held:

" 'Personal Liberty' in Art. 21 takes in all the rights of man."

The 4th Amendment of U.S. Constitution guaranteed "the right to be secure on their persons, houses......." This right was read into Article 21 and it was held that "there cannot be an unauthorised intrusion into a person's home".

In Kesavananda Bharati v. Kerala, [1973] Supp. SCR page 1 Mathew, J. stated therein that the fundamental rights themselves have no fixed content, most of them are empty vessels into which each generation must pour its content in the light of its experience. It is relevant in this context to remember that in building up a just social order it is sometimes imperative that the fundamental rights should be subordinated to directive principles.

700 In Puthumma's case, [1978] 2 SCR 537, it has been stated:

"The attempt of the court should be to expand the reach and ambit of the fundamental rights rather than accentuate their meaning and content by process of judicial construction... Personal liberty in Article 21 is of the widest amplitude';, In this connection, it is worthwhile to recall what was said of the American Constitution in Mussorie v. Holland 252 U.S. 416 at 433:

"When we are dealing with words that also are constituent act, like the constitution of the United States, we must realize that they have called into fife a being the development of which could not have been foreseen completely by the most gifted of its begetters."

In State of M.P. v. Pramod Bhyaratiya and others, (1992) 2 Scale 791 it is stated:

Because clause (d) of Article 39 spoke of "equal pay for equal work" for both men and women it did not cease to be part of article

14. To say that the rule having been stated as a directive principle of State Policy, and no enforceable in court of law is to indulge in sophistry. Parts IV & III of Constitution are not supposed to be exclusion any of each other. They are complementary to each other.The rule is as much a part of Article 14 as it is of clause (1) of Article 16."

This Court has held that several unenumerated rights fall within Article 21 since personal liberty is of widest amplitude.

The following rights are held to be covered under Article 21:

1. The right to go abroad Satwant Singh v. A.P. O. New Delhi [1967] 3 SCR page 525.

2. The right to privacy Govinda v. State of U.P., [1975] 3 SCR 946 701 In this case reliance was placed on the American decision in Griswols v. Connecticut, 381 US 479 at 510

3. The Right against solitary confinement Sunil Batra v. Delhi Administration, [1978] 4 SCC 494 at 545

4. The Right against Bar fetters Charles Sobraj v. Sup(. Central fail, [1979] 1 SCR Ill

5. The Right to legal aid Hoskot v. State of Maharashtra, [1979] 1 SCR 192

6. The Right to speedy trial Hussainuia Katoon v. State of Bihar, [1979] 3 SCR 169

7. The Right against Handcuffing Prem Shankar v. Delhi Administration [1080] 3 SCR 855

8. The Right against delayed execution TV. Vatheeswaran v. State of Tamil Nadu, AIR 1983 SC 361

9. The Right against custodial violence Sheela Bhasre v. State of Maharashtra, [1983] 2 SCC 96

10. The Right against public hanging A.G. of India v. Lachmadevi AIR 1986 SC 467

11. Doctor's Assistance Parantananda Katra v. UOI, [1989] 4 SCC 286

12. Shelter Santistar Builder v. N.KI. Totame, [1990] 1 SCC 520 If really Article 21, which is the heart of fudamental rights has received expanded meaning from time to time there is no justification as to why it cannot be interpreted in the light of Article 45 wherein the State is obligated to provide education up to 14 years of age, within the prescribed time limit.

So much for personal liberty.

Now coming to life: this Court interpreted in Bandhua Mukti Morcha 702 v. Union of India, [1984] 3 SCC 161 @ 183- 84:

"It is the fundamental right of everyone in this country, assured under the interpretaiton given to Article 21 by this Court in Francis Mullin's case, to live with human dignity, free from exploitation. This right to live with human dignity, free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Article 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to five with human dignity and no State neither the Central Government nor any State Government has the right to take any action which will deprive a person of the enjoyment of these basic essentials. Since the Directive Principles of State Policy contained in clauses (e) and (f) of Article 39, Articles 41 and 42 are not enforceable in a court of law, it may not be possible to compel the State through the judicial process to make provision by statutory enactment or executive fiat for ensuring these basic essentials which go to make up a life of human dignity but where legislation is already enacted by the State providing these basic requirements to the workmen and thus investing their right to live with basic human dignity, with concrete reality and content, the State can certainly be obligated to ensure observance of such legislation for inaction on the part of the State in securing implementation of such legislation would amount to denial of the right to live with human dignity enshrined in Article 21, more so in the context of Article 256 which provides that the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in 703 that State."

This, was elaborated in Olga Tellis v. Bombay Municipal Corporation, 119851 3 SCC 545 @ 571- 573:

"As we hive stated while summing up the petitioners case, the main plank of their argument is that the right to fife which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood .

Upon that assumption, the question which we have to consider is whether the right to fife includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of livingn that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impos- sible to live. And yet such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to live.

That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him 704 of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which peoples their desertion of their hearts and homes in the village is the struggle for survival that is, the struggle for fife. So unimpeachable is the evidence of the nexus between fife and the means of livelihood. They have to eat to live: Only a handful can efford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas, J. in Baksey that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. 'Life', as observed by Field, J. in Munn v. Illinois, means something more than mere animal existence and the inhibition against the deprivation of fife extends to all those limits and faculties by which life is enjoyed.

This observation was quoted with approval by this Court in Singh v. State of UP.

Article 39(a) of the Constitution, which is a Directive Principle of State Policy, provides that the State shall in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood. Article 41, which is another Directive Principle, provides, inter alia, that the State shalt within the limits of its economic capacity and development make effective provision for securing the right to work in cases of unemployment and of undeserved want. Article 37 provides that the Directive Principles, though not enforceable by any court, are nevertheless fundamental in the governance of the, country. The principles contained in Articles 39(a) and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and content of fundamental rights. If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may 705 not by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21."(Emphasis supplied) If thus, personal liberty and life have come to be given expanded meaning, the question to be addressed is, whether life which means to live with dignity, will take within it education as well? To put it more emphatically, whether right to education flows from right to life? Before we go to Mohini Jain's case [1992] 3 SCC 666 it may be necessary to refer to State of Andhra Pradesh v. Lavu Narendranath, [1971] 1 SCC 607. At page 614 it is stated:

"Lastly it was urged that such test affected the personal liberty of the candidates secured under Article 21 of the Constitution. We fail to see how refusal of an application to enter a medical college can be said to affect one's personal liberty guaranteed under that article. Everybody, subject to the eligibility prescribed by the University, was at liberty to apply for admission to the medical college. The number of seats being limited compared to the number of applicants every candidate could not expect to be admitted. Once it is held that the test is not invalid the deprivation of personal liberty, if any, in the matter of admission to a medical college was according to procedure established by law. Our attention was drawn t o the case of Spottwood v. Sharpe, in which it was held that due process clause of the Fifty Amendment of the American Constitution prohibited racial segregation in the District of Columbia. Incidentally the Court made a remark (at p. 887):

"Although the Court has not assumed to define "liberty". with any great precision, that term in not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper 706 governmental objective. Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause. The problem before is altogether different. In this case everybody subject to the minimum qualification prescribed was at liberty to apply for admission. The Government objective in selecting a number of them was certainly not, improper in the circumstances of the case,."

It requires to be carefully noted that deprivate of personal liberty if done by a valid procedure established by law, the fundamental right under Article 21 was not, in any manner, affected. That is the crux of this ruling.

Now, coming to Mohini Jain's case (supra) it was observed at pages 679-80:

"Right to life" is the compendious expression for all those rights which the courts must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. The right to education flows directly from right to life. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to make endeavor to provide educational facilities at all levels to its citizens."

Education is enlightenment. It is the one that lends dignity to a man as was rightly observed by Gajendragarkear, J. (as he then was) in University of Delhi v. Ram Nath, [1964] 2 SCR 703 at 710:

"Education seeks to build up the personality of the pupil by assisting his physical, intellectual, moral and emotional development."

If life is so interpreted as to bring within it right to education, it has 707 to be interpreated in the light of directive principles. This Court has uniformly taken the view that harmonious interpretation of the fundamental rights vis-a-vis the directive principles must be adopted. We will now refer to some of the important cases.

In State of Kerala & Anr. v. N.M. 7homas & Anr., [1976] 1 SCR 906, at 914 it was held:

"There is complete unanimity of judicial opinion of this Court that the Directive Principles and the Fundamental Rights should be construed in harmony with each other and every attempt should be made by the Court to resolve apparent inconsistency. The Directive Principles contained in Part IV constitute the stairs to climb the High edifice of a socialistic State and the Fundamental Rights are the means through which one can reach the top of the edifice. The Directive Principles form the fundamental feature and the social conscience of the Constitution which enjoins upon the State to implement these Directive Principles. The Directives, thus provide the policy, the guidelines and the end of socioeconomic freedom and Arts. 14 and 16 are the means to implement the policy to achieve the ends sought to be promoted by the Directive Principles. So far as the Courts are concerned where there is no apparent inconsistency between the Directive Principles contained in Part IV and the Fundamental Rights mentioned in Part III, there is no difficulty in putting a harmonious construction which advances the object of the Constitution.' In Pathumma and others v. State of Kerala and others, [1978] 2 SCR 537 at 545-46 it was observed:

"In fact in the case of His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala all the Judges constituting the Bench have with one voice given the Directive Priciples contained in the Constitution a place 708 of honour. Hegde and Mukhejea, JJ. as they they were have said that the fundamental rights and the Directive Principles constitute the "conscience' of our Constitution. The purpose, of the Directive Principles is to fix certain social and economic goals for immediate attainment by bringing about a non- violent social revolution. Chandrachud, J. observed that our Constitution aims at bringing about a synthesis between 'Fundamental Rights' and the 'Directive Principles of State Policy' by giving to the former a place of pride and to the latter a place of permanence.

In a latter case State of Kerala & Anr. v. N.M. Thomas & Ors., [1976] 2 SCC 310 one of us (Fazal Ali, J.) after analysing the Judgment delibered by all the Judges in the Kesvananda Bharati's case (supra) on the importance of the Directive Principles observed as follows: "In view of the principles adumbrated by this Court it is clear that the Directive Principles form the fundamental feature and the social conscience of the Constitution and the Constitution enjoins upon the State to implement these directive principles. The directives thus provide the policy, the guidelines and the end of socioeconomic freedom of Articles 14 and 16 are the means to implement the policy to achieve the ends sought to be promoted by the directive principles. So far as the courts are con-

cerned where there is no apparent inconsistency between the directive principles contained in Part 111, which in fact supplement each other, there is no difficulty in putting a harmonious construction, which advances the object of the Constitution. Once this basic fact is kept in mind, the interpretation of Articles 14 and 16 and their scope and ambit become as clear as day'. In the case of The State of Bombay v. R.M.D. Chamarbaugwala this Court while stressing the importance of directive principles contained in the Constituion observed as follows:

709 The avowed purpose of our constitution is to create a welfare State. The directive principles of State Policy set forth in Part IV of our Constitution enjoin upon the State the duty to strive to promote the welfare of the people by and protecting, as effectively as it may, a social order in which justice, social economic and political shall inform all the institutions of the national life.' In the case of Fatehchand Himmatlal & Ors. v. State of Maharashtra etc. (supra) the Constitution Bench of this Court observed as follows:

"Incorporation of Directive Principles of State Policy casting the high duty upon the State to strive to promote, the welfare of the people by securing and protecting as effectively as it may, a social order in which justice social economic and political shall inform all the institutions of the national life, is not idle point but command to action. We can never forget, except at our peril that the Constitution obligates the State to ensure an adequate means of livelihood to its citizens and to see that the health and strength of workers, men and women, are not abused, that exploitation, moral and material, shall be extradited. In short, State action defending the weaker sections from social injustice and all forms of exploitation and raising the standard of living of the people, necessarily imply that economic activities, attired as trade or business or commerce, can be de-recognised as trade or business."

In Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi and others, [1992] 4 SCC 99 at 110 it was observed:

"There is no doubt that broadly interpreted and as a necessary logical corollary, right to life would include the right to livelihood and, therefore, right to work. It is for this reason that this Court in Olga Tellis v. Bombay Municipal Corporation while considering the consequences of eviction of the pavement dwellers had pointed out that in that case the eviction not merely resulted in deprivation of shelter but also deprivation of livelihood 710 inasmuch as the pavement dwellers were employed in the vicinity of their dwellings. The Court had, therefore, emphasised that the problem of eviction of the pavement dwellers bad to be viewed also in that context. This was, however, in the context of Article 21 which seeks to protect persons at the deprivation of their life except according to procedure established by law. This Country has so far not found it feasible to incorporate the right to livelihood as a fundamental right in the Constitution. This is because the country has so far not attained the capacity to guarantee it, and no because it considers it any the less fundamental to life. Advisedly, Article 41 of which enjoins upon the State to make effective provision for securing the same "within the limits of its economic capacity and development". Thus even while giving the direction to the State to ensure the right to work, the Constitution makers though it prudent not to do so without qualifying it."

Such a conclusion may not be open to criticism. So interpreted it advances social justice.

In Vol. VII at pages 909 and 910 of the Constitutent Debates (1948-49) it is stated:

"The Honourable Shri K. Santhanam : Sir, you will remeber that throughout Europe, after the First World' War, all that the minorities wanted was the right to have their own schools, and to conserve their own cultures which the Fascist and the Nazis refused them. In fact, they did not want even the State schools. They did not want State aid, or State assistance. They simply wanted that they should be allowed to pursue their own customs and to follow their own cultures and to establish and conduct their own schools. Therefore I do not think it is right on the part of any minority to depreciate the rights given in article 23(1).

Sir, in clause (2) of article 23 they are protected against discrimination. It is just possible that there may be many provinces based on language and therefore the Govern-

711 ment, the ministry and the legislature will be composed dominantly by members of the majority language. This right of non-discrimination will then become fundamental and valuable. And then in clause (3) of this article, it is provided that when the State gives aid to education, it shall not discriminate against any educational institution, on the ground that it is under the management of a minority. Whether based on community or on language, and this will be particularly applicable to the linguistic minorities. In every province, there are islands of these linguistic minorities. For instance, in my own province of Tamil Nadu there are islands, in almost every district, of villages where a large number of Telugu-speaking people reside. In this connection we have to hold the balance even between two different trends. First of all, we have to give to large linguistic minorities their right to be educated especially in the primary stages in their own language. At the same time we should not interfere with the historical process of assimilation. We ought not to think that for hundred and thousands of years to come these linguistic minorities will perpetuate themselves as they are. The historical processes should be allowed free play. These minorities should be helped to become assimilated with the people of the locality. They should gradually absorb the language of the locality and become merged with the people there. Otherwise they will be aliens, as it were, in those provinces. Therefore, we should not have rigid provisions by which every child is automatically protected in what may be ,called his mother-tongue. On the other hand, this process should not be sudden, it should not be forced. Wherever there are large numbers of children, they should be given education primary education in their mother-tongue. At the same time, they should be encouraged and assisted to go to the ordinary schools of the provinces and to imbibe the local tongue and get assimilated with the people. If feel this clause does provide for these contingencies in the most practicable fashion.

712 Sir, Mr. Lari wanted an amendment which seeks to provide that every child, rather that every section of the citizens, shall be entitled to have primary education imparted to its children through the medium of the language of that section. I suppose what he means is that wherever primary education is imparted at the expense of the State, such provisions should be made. But this, I think, would give the minority or section of people speaking a language the complete and absolute right to have primary education which the people of this country do not have today. In the directives we have provided that in fifteen years' time there should be universal primary education. But no one knows whether the financial and other conditions in the country would permit of universal primary education to be established even then. Today no one in India can ask for primary education as a right as only ten per cent of the population get primary education. Therefore, it is not possible to accept Mr. Lari's amendment, because that would lead to all kinds of difficulties. If it were passed, then anyone can go to the Supreme Court and say that his child must get education in a particular language. That is not practicable, and I do not think even his intention is at all that. At the same time, I think, what he has pleaded for must be kept in mind as a general policy. It should be direction of the Central and the Provincial Governments to see that wherever there are congregations of boys and girls having a distinct mother tongue, schools should be provided in that language. I hope, that will be the policy adopted all over the country, especially as, if there is going to be new linguistic revisions of the boundaries , all the border areas will be full of this problem. I hope the respondent of the Linguistic Provinces Commission will contain some wise provisions to be adopted in this behalf. There should be no difficulty or hardship whatsoever in provinces when they are rearranged on a linguistic basis. For instance, if a Telugu goes to one area or the other, he should not have any hardship. As I said, this is a most difficult and com-

713 plicated problem and it cannot be dealt with in detail in the fundamental rights. This article 23 provides as much security as can be done in the Constitution. Other securities will have to be provided for both by Parliamentary and provincial,legislation, and I hope it will be done in due course.' It is true the framers of the Constitution took that view. But the position as on today is very different. The reason is Article 45 States as under:

"Provision for free and compulsory education for children. The State shall endeavor to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years."

14 years, spoken to under the Article, had long ago come to an end. We are in the 43rd year of Independence. Yet, if Article 45 were to r a pious wish and a fond hope, what good of it having regard to the importance of primary education? A time limit was prescribed under this Article. Such a time limit is found only here, If, therefore, endeavor has not been made till now to make this Article reverberate with life and articulate with meaning, we should think the Court should step in. The State can be objected to ensure a right to free education of every child up to the-age of 14 years. On this aspect a useful reference could be made to what have been observed in Human Right and Education Vol. 3 edited by Norma Bernstein Tarrow at page 41:

"The State is directed to strive for the right to education, make provision for free and compulsory, education (Article 45) and promote the. educational interests of Scheduled Castes and Tribes, and other weaker sections (including women).

Education is primarily the responsibility of the State Governments, but the Union Government has certain responsibilities specified in the Constitution on matters such as promote higher education and promotion of education for weaker sections. Most states have enacted 714 legislation for compulsory education. At the end of the Sixth Five Year Plan (1985) primary education for ages 6-11 is free in all states, and for age group 11-14 it is free in all except Orissa, Uttar Pradesh and West Bengal. In these States, girls and members of Scheduled Castes and Tribes get free education, and incentives such as mid-day meals, free books and uniforms, are provided. At the secondary stage several states have free education for all children and those which do not make free education available to all do so for girls, Scheduled Castes and Tribes. Thus free education in all states is provided at the primary and secondary stages for girls, Scheduled Castes and Tribes."

Again at page 43 it is stated:

'Useful measures of achievement in terms of the right to education are literacy and enrollment levels. The contemporary picture, however, is not as good as one would expect after 39 years of independence. The literacy rate has risen from 16.6. per cent in 1951 to 36.6 per cent according to the 1981 census.

But regional variations indicate a range of above 60 per cent literacy in Kerala to below 20 per cent in some states. Nearly 120 million in the functional age group of 15-35 are still illiterate (Bhandari 1981).

Over the last three decades of planned development, rapid growth in facilities has attempted to provide access for minorities and girls. The number of educational institutions has more than doubled, while the number. of teachers and students has multiplied many tunes. But despite the fact that 93 per cent of the rural population have access to schnook nearly 30 per cent of 6-14 year old (60 million) do not go to school and T7 per cent drop out. A large percentage of the dropouts are grids and Scheduled Caste and Tribe members. The main problems are socioeconomic constraints which result in educational constraints. Poverty is a majory cause for keeping chidren 715 away from school."

Article 26(1) of the Universal Declaration of Human Rights states:

"Everyone has the right to education. Technical and professional and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit."

(Emphasis supplied) In the World of Science and the Rule of Law by John Ziman 1986 Edition at page 49 if is stated:

"The principal global treaty which covers this right is the ICESCR, whose Article 13 recognizes the general right to education enunciated by the UDHR, but then goes on to add the following more specific provisions:

(2) The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right:

(a) Primary education shall be compulsory and available fee to all;

(b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education:

(c) Higher education shall be made equally accessible to all on the progressive introduction of free education;

(d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whose period of their primary education;

(e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teach-

716 ing staff shall be continuously improved. The status of this Article is a useful reminder of the problems inherent in any attempt to create a 'social' right of this kind for individuals against their states." No doubt, the above extract from Mohini Jain's case (supra) states "education at all levels", but we 'consider the law has been somewhat broadly stated and, therefore, must be confined to what is envisaged under Article 45. The criticism by Mr. Ashok Desai, learned counsel that Article 37 has not been adverted to and the reliance on directive principles is untenable, in view of what we have stated above.

Higher education calls heavily on national economic resources. The right to it must necessarily be limited in any given country by its economic and social circumstances. The State's obligation to provide it is, therefore, not absolute and immediate but relative and progressive. It has to take steps to the maximum of its available resources with a view to achieving progressively the full realization of the right of education by all appropriate means' But, with regard to the general obligation to provide education, the State is bound to provide the same, if it deliberately starved its educational system by resources that it meanifestly had available unless it could show that it was allocating them to some even more pressing programme. fore, by holding education as a fundamental right up to the age of 14 years this Court is not determining the priorities. On the contrary, reminding it of the solemn endeavour, it has to take, under Article 45, within a prescribed time, which time limit was expired long ago.

Mr. K.K. Venugopal, learned counsel contends that in the U.S. Supreme Court in the case of San Antonio Independent School District v. Rodrgues, 1973 411 U.S. it was observed:

"It is not province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws. Thus the key to discovering whether education is 'Fundamental" is not to be found (imcomparisons) of the relative societal significances of 717 education as opposed to subsistence or housing... Rather, the answer lies in assessing whether there is a right to education explicitly or implicity guaranteed by the Constitution.

But if in reality, the, fundamental rights and the directive principles are complementary to each other we are unable to see why this fundamental right cannot be interpreted in this manner. The American Constitution does not have a directive principle like, Article 45. Therefore, the contraly view was struck in San Antonio Independent School District (supra).

While dealing with the American Law on this aspect in Vol. 57 1969 Califomia Law Review at page 380 it was stated:, "It is true that the quotation from the Brown opinion seems stunningly relevant. Taken literally it would be decisive in some sense upon the question of this Article. Education ;must be made available to @ on equal terms." From the vantage point of 1968, however, it is no longer clear that Brown was specially concerned about the interest in education. The decision had scarcely appeared before the "ftmdamental" character of education become the fundamental character of golf and swimming rights, and all the cases since Brown, even the cases involving education, have shown complete preoccupation with the racial factor. Meanwhile the Court has done nothing further to suggest that education enjoy as a constitutional life of its own.' As to the present position of primary education in India, the additional affidavit on behalf of Union of India filed by Mr. H.C. Baveja, Assistant Education Advisor in the Ministry of Human Resources Development, Government of India, Department of Education, New Delhi, puts the position thus:

STATUS OF ELEMENTRY EDUCATION IN INDIA

1. Provision of free and compulsory education to all children until they complete the age of 14 years is a Directive Principle of the Constitution. Recognising the 718 need for literate population and provision of elementary education as a crucial input for nation building, the policy of the Government has been to provide all children the free and compulsory education at least up to elementary level (primary and upper primary level). The 6th Five Year Plan document made a serious reference to the desirability of a time bound plan to achieve universal enrolment. The 7th Plan conveyed a sense of urgency about the need to achieve this objective. This was reinforced mid-way by the National Policy on Education, 1986.

Progress over the years.

2. Concerted efforts to reach the target has led to manifold increase in institutions, teachers and students as shown in the table below.-

Number of Institution (in lakhs)

---------------------------------------------------

1950-51 1990-91

----------------------------------------------------

Primary Schools 2.10 5.58 (Class I-V)

---------------------------------------------------

Upper Primary Schools 0.13 1.46 (Class VI-VIII)

----------------------------------------------------

Total 2.23 7.04

---------------------------------------------------- Number of Teachers (In lakhs)

----------------------------------------------------

Primary Schools 5.38 16.36

----------------------------------------------------

Upper Primary Schools O.36 10.59

-----------------------------------------------------

Total 6.24 26.95

-----------------------------------------------------

Gross Enrolment

------------------------------------------------------

Primary Enrolment (in 192 991

------------------------------------------------------

Gross Enrolment Ratio 43.1% 101.03%

--------------------------------------------------------

Upper Primary State

--------------------------------------------------------

Total Enrolment (in lakhs) 31 333

---------------------------------------------------------

Gross Enrolment Ratio 12.9% 60.11%

---------------------------------------------------------

719 3. This increase provided Indian Education System with one of the largest systems in the world, providing accessibility within 1 km. walking distance of Primary schools to 8.26lakhs habitations containing about 94% of the country's population. Growth in enrolment in the decade of 80s showed an acceleration that has now brought enrolment rates close of 100% at primary stage.

FREE EDUCATION.

4. In the endeavour to increase enrolment and achieve the target of UEE, all State Governments have abolised tuition fees in Government Schools run by local bodies and private aided institutions is mostly free in these States. However, in private unaided schools which constitute 3.7. of the total elementary schools in the country, some fee is charged. Thus, overall it may be said that education up to elementary level in practically all schools is free. Other costs of education such as text books, uniforms, school bags, transport etc. are not borne by States except in a very few cases by way of incentives to children of indigent families or these belonging to Scheduled Caste/Scheduled Tribes categories. The reason why the State Government are unable to bear this additional expenditure is that 96% of expenditure on elementary education goes in meeting the salaries of teaching and non-teaching staff. COMPULSORY EDUCATION 5.14 States and 4 Union Territories have enacted legislation to make education compulsory but the socioeconomic compulsions that keep the children away from schools have restrained them from prescribing the rules and regulations whereby those provisions can be endorsed.

Thus, it has to be concluded that the right to free education up to the age of 14 years is a fundamental right.

720 The next question is whether there is a fundamental right to establish an educational institution. That takes us to Article 19(1)(g). That reads as follows:

to practise any profession, or to cam on any occupation, trade or business.' The question now is: what is the meaning to be attributed to the words 'profession, "occupation", "trade" or "business". In P. Ramanatha Aiyar's Law Lexicon Reprint Edition 1987 at page 897 'Occupation means:

"The principal business of one's life, vocation,trade, the business which a man follows to procure a living or obtain wealth: that which occupies or engages one's time or attention, vocation, employment, calling trade; the business in which a man is usually engaged, to the knowledge of his neighbour."

According to Black's Law Dictionary Fifth Edition at page 973 'Occupation' means:

"Possession; control; tenure; use. The act or process by which real property is possessed and enjoyed. Where a person exercises physical control over land'.

That which principally takes up one's time, thought, and energies, especially, one's regular business or employment; also, whatever one follows as the means of making a livelihood. Particular business, profession, trade, or calling which engages individual's time and efforts; employment in which one regularly engages or vocation of his life."

In P. V. G. Raju v. Commissioner of Expenditure, ITR Vol. 86 page 267 it is observed thus:

"The activity termed as 'Occupation'. if of wider import than vocation or profession. It is also distinct from a hobby which can be resorted to only in leisure hours for 721 the purpose of killing time. Occupation, therefore, is that with which a person occupies himself 'either temporarily or permanently or for a considerable period with continuity of activity. It is analogous to a business, calling or pursuit. A person may have more than one occupation in a previous year. The Occupations may be seasonal or for the whole year."

"Firstly, there can be a business, profession, vocation or occupation without any profit motive or on 'no profit no loss basic. To, illustrate, co-operative societies or mutual insurance companies may carry on business without earning any income or without any profit motive. The vocation or occupation to do social service of various kinds for the uplift of the people would also come under this category. The profit motive or earning of income is not an essential ingredient to constitute the activity, termed as business, profession, vocation or occupation."

"If any authority is needed, we find it in Commissioner of Expenditure Tax v. Mrs. Manorama Sarabhai, (1966) 59 ITR 262 (Guj.) wherein it was held that the educational activities of the assessees amounted to an occupation within the meaning of Section 5(a) and that no profit motive is necessary to treat an activity as a vocation or occupation within the meaning of Section 5(a). For all these reasons, we must negative this submission of Mr. Ramarao relating to the interpretation of the words "business, profession, vocation or occupation' in section 5(a) of the Act."

In P.K Menon v. Income-tax Commissioner, [1959] Supp. 1 SCR 133 at p. 137 this Court observed as follows:

"We find no difficulty in thinking that teaching is a vocation if not a profession. It is plainly so and it is not necessary to discuss the various meanings of the word "vocation' for the purpose or to cite authorities to support this view. Nor do we find any reason why, if teaching is a vocation, teaching of Vedanta is not. It is just as much 722 teaching and therefore, a vocation, as any other teaching. It is said that in teaching Vedanta the appellant was only practising religion. We are unable to see why teaching of Vedanta as a matter of religion is not carrying on of a vocation.' "It is-said that as the word 'Vocation' has been used along with the words 'business" and "profession" and the object of business and a profession, is to make a profit, only such activities can be included in the word 'Vocation" the object of which likewise is to make a profit. We think that these contentions lack substance. We do not appreciate the significance of saying that in order to become a vocation an activity must be organised. If by that a continuous, or as was said, a systematic activity, is meant,we have to point out that it is well known that a single act may amount to the carrying on of a business or profession".

The meaning of "business" can be gathered from Law Lexicon Edition 1987 by Ramnath Iyer:

"Business is that which engages the time, talent and interest of a man" and is what a man proposes to himself. There may be a "Business" without precuniary profit being at all contemplated.

"Business" and "Trade" : "Business" has a more extensive meaning that "Trade" (per Willes, J. Hariis v. Amery 35 L.J. C.P.92) But "Ordinarily speaking, Business is synonymous with 'Trade", (per Chatterton V. C. Delany v. Deleny, 15 L.R. Ir. 67). There may, however, be a "Business" without pecuniary profit being at all contemplated. In such connection, "Business' is a very much larger word than 'Trade' and the word "Business" is employed in order to include occupations which would not strictly come within the meaning of the word "Trade (per Person, J. Rolls v. Miller, 53 LJ. Ch. 101) per Scruitton. L.J. The words 'Trade" and 'Business" do not mean the same thing ..... ;on business, though usually business is carried on for profit. It is to be presumed that the Railways are run on a profit, though it may be that occasionally they are run 723 at a loss."

"Monetary consideration for service is, therefore, not an essential characteristic of industry in a modern State".

In Hindustan Steel Limited v. State of Orissa, [1970] 1 SCR 753 it is observed:

"A person to be a dealer within the meaning of the Act must carry on the business of selling or supplying goods in Orissa. The expression, 'business' is not defined in the Act. But as observed by this Court in State of Andhra Pradesh v. Abdul Bakshi, [1964] 7 SCR 664:

"The expression 'business' though extensively used as a word of indefinite import, in taxing statutes it is used in the sense of an occupation, or profession which occupies the time, attention and tabour of a person , normally with the object of making profit. To regard an activity as business there must be a course of dealings either actually continued or contemplated to be continued with a profit motive, and no for sport of pleasure."

In Barendra Prasad Ray v. The Income-tax Officer, AIR'1981 SC 1047: [1981] 3 SCR 387 at 400 B and H and 401 A and B it is observed:

"The expression 'business does not necessarily mean trade or manufacture only. It is being:

used as including within its scope profession, vocations and calling from a fairly long time. The Shorter Oxford English Dictionary defines 'Business" as stated occupation, profession or trade' and a man of business is defined as meaning "an attorney' also. In view of the above dictionary meaning of the, word 'business' it cannot be said that the definition of business given in Section 45 of the Partnership Act, 1890 (53 & 54 Vict. C.

39) was an extended definition intended for the purpose of that Act only. Section 45 of that Act says:

The expression 'Business" includes every Trade, occupation, or profession".

724 "Section 2(b) of the Indian Partnership Act, 1932 also defines 'Business' thus:- "Business' includes every trade, occupation and profession."

"The observation of Rowlatt, J. in, Christopher Barker & Sons v. Commissioner of Inland Revenue, (1919) 2 KB 222 at p.228. 'All professions are businesses, but all businesses are not professions, ..." also supports the view that professions are generally regarded as business. The same learned Judge in an other case Commissioner of Inland Revenue v. Marine Steam Turbine Co. Ltd., (1920) 1.KB. 193 held:

"The word 'Business' however is also used in another and a very different sense, as meaning an active occupation or profession continuously carried on and it is in this sense the word is used in the Act with which we are here concerned".

"The word "Business" is one of wide import and it means an activity carried on continuously and systematically by a person by the application of his labour skiff with a view to earning an income. We are of the view that in the context in which the expression "business"

is used in Section 9(1) of the Act, there is n o warrant for giving a restricted meaning to it excluding professional connections from its scope."

In each of these cases, depending upon the statute, either "occupation" or 'business' has come to be defined. Certainly, it cannot be contended that establishment of an educational institution would be "business". Nor again, could that be called trade since no trading activities carried on. Equally, it is not a profession. It is one thing to say that teaching is a profession but, it is a totally different thing to urge that establishment of an educational institution would a profession. It may perhaps fall under the category of occupation provided no recognition is sought from the State or affiliation from the University is asked on the basis the it is a fundamental right. This position is explained, below:

725 However, some of the learned counsel relied on Bangalore Water Supply and Sewerage Board v. R Rajappa, [1978] 3 SCR 207 to urge that the activity of running an educational institution was an industry. In that case, Krishna Iyer, J.

observed:

"To Christian education as a mission, even if true, is not to negate it being an Industry, we have to look at education activity from the angle of the Act and so viewed the ingredients of education are fufiled. Education is, therefore, an industry nothing can stand in the way of that conclusion."

This ruling was relied on in Miss Sundarambai v. Government of Goa, [1988] Suppl. 1 SCR 604 at page 608B. It was held:

"Thus it is seen that even though an educational institution has to be treated as an industry in view of the decision in the Bangalore Water Supply and Sewerage Board v. R. Rajappa (supra) the question whether teachers in an educational institution can be considered as workmen still remains to be decided.' It requires to be carefully noted that while considering as to what would constitute an industry under the Industrial Disputes Act, these observations came to be made. Certainly, that is very different from claiming a fundamental tat right under Article 19(1) (g). Even on general principles, the matter could be approached this way. Educational institutions can be classified under two categories:

1. Those requiring recognition by the State and

2. Those who do not require such a recognition..

It is not mere an establishment of educational institution, that is urged by the petitioners, but, to run the educational institution dependent on recognition by the State. There is absolutely no fundamental right to recognition in any citizen. The right to establishment and run the educational institution with State's recognition arises only on the State permitting pursuant to a policy decision or on the fulfilment of the conditions of the Statute. Therefore, where it is dependent on the permission under the 726 statute or the exercise of an executive power, it cannot qualify to be a fundamental right. Then again, the State policy may dictate a different course.

The logical corollary of holding that a fundamental right to establish in educational institution is available under Article 19(1) (g) would lead of the proposition, right to establish a university also. In fact, this Court had occasion to point out in S. Azeez Basha and Anr v. Union of India, 19681 1 SCR 833 at page 848 thus:

"Before we do so we should like to say that the words educational institutions" are of very wide import and would include a university also. This was not disputed on behalf of the Union of India and therefore it may be accepted that a religious minority had the right to establish a university under Art. 30(1). The position with respect to the establishment of Universities before the Constitution came into force in 1950 was this. There was no law in India which prohibited any private individual or body from establishing a university and it was therefore open to a private individual or body to establish a university. There is a good deal in common between educational institutions which are not universities and those which are universities. Both teach students and both have teachers for the purpose. But what distinguishes a university from any other educational institution is that a university grants degrees of its own while other educational institutions cannot. It is this granting of degrees by a university which distinguishes it from the ordinary run of educational institutions. (See St. David's College, Lampeter v. Ministry of Educations 1951 1 All E.R. 559). Thus in law in India there was no prohibition against establishment of universities by private individuals or bodies and if any university was so established it must of necessity be granting degrees before it could be called a university. But though such a university might be granting degrees it did not follow that the Government of the country was bound to recognise those degrees."

727 It there is no fundamental right to establish a university a fortiori a fundamental right to establish an educational institution is not available.

By implication also a fundamental right of the nature and character conferred under Article 30 cannot be read into Article 19(1) (g). The conferment of such a right on the minorities in a positive way under Article 30 negatise the assumption of a fundamental right in this behalf in every citizen of the country.

In Ahmedabad St. Xaviers College Society v. State of Gujarat, [1975] 1 SCR 173 at page 191 it is observed:

"The tight to establish and administer educational institutions of their choice has been conferred on religious and linguistic minorities so that the majority who can always have their tights by having proper legislation do not pass a legislation prohibiting minorities to establish and administer educational institutions of their choice. If the scope of Article 30(1) is made an extension of the right under Article 29(1) as the right to establish and administer educational institutions for giving religious instruction or for imparting education in their religious teachings 'or tenets the fundamental right of minorities to establish and administer educational institution of their choice will be taken away.

(Emphasis Supplied) At page 192 it is observed:

"Article 30 is a special right to minorities to establish educational institutions of their choice. This Court said that the two Articles create two separate rights though it is possible that the rights might meet in a given case.

The real reason embodied in Article 30 (1) of the Constitution is the conscience of the nation that the minorities, religious as well as linguistic, are not prohibited from establishing and administering educational institutions of their choice for the purpose of giving their children the best general education to make them com-

728 plete men and women of the country. The minorities are given this protection under Article 30 in order to preserve and strengthen the integrity and unity of the country. The sphere of general secular education is intended to develop the commonness of boys and girls of our country. This is in the true spirit of liberty, equality and fraternity through the medium of education. If religious or linguistic minorities are not given protection under Article 30 to establish and administer educational institutions of their choice, they will feel isolated and separate. General secular education will open doors of perception and act as the natural fight of mind for our countrymen to live in the whole."

Then again, at page 224 it is observed:

"The idea of giving some special rights to the minorities is not to have a kind of privileged or pampered section of the population but to give to the minorities a sense of security and a feeling of confidence. The great leaders of India since time immemorial had preached the doctrine of tolerance and cathnolicity of outlook. Those noble ideas were enshrined in the Constitution. Special rights for minorities were designed not to create inequality. Their real effect was to bring about equality by ensuring the preservation of the minority institutions and by guaranteeing to the minorities autonomy in the matter of the administration of these institutions. The differential treatment for the minorities by giving them special rights is intended to bring about an equilibrium, so that the ideal of -quality may not be reduced to a mere abstract idea but should become a living reality and result in true, genuine equality, an equality not merely in theory but also in fact. The majority in a system of adult franchise hardly needs any protection. It can look after itself and protect its interests. Any measure wanted by the majority can without much difficulty be brought on the statute book because the majority can get that done by giving such a mandate to the elected representatives. It is only the 729 minorities who need protection, and article 30, besides some other articles, is intended to afford and guarantee that protection. (Emphasis supplied) The argument that every activity or occupation by the mere fact of its not being abnoxious or harmful to society-, cannot by itself be entitled to protection as fundamental right. As pointed out above, some rights, by the very nature, cannot be qualified to be protected as fundamental rights.

Accordingly, it is held that there is no fundamental right under Article 19(1) (g) to establish an educational institution, if recognition or affiliation is sought for such an educational institution. It may be made clear that any one desirous of starting an institution purely for the purposes of educating the students he could do so but Sections 22 and 23 of the University Grants Commission Act which prohibits the award of degrees except by a University must be kept in mind.

The next question which calls for determination is; does recognition or affiliation make the educational institution an instrumentality ? We propose to examine this question with reference to the following cases. In Ajay Hasia v. Khalid Mujib Sehravardi, [1981] 2 SCR 79 at pages 96 and 97 it was observed:

"The tests for determining as to when a corporation can be said to be an instrumentality or agency of Government may now be called out from the judgment in the Intemational Airport Authority's case. These tests are not conclusive or clinching, but they are merely indicative indicate which have to be used with care and caution, because while stressing the necessity of a wide meaning to be placed on the expression "other authorities', it must be realised that it should not be stretched so far as to bring in every autonomous body which has some nexus with the Government within the sweep of the expression. A wide enlargement of the meaning must be tempered by a wise limitation. We may summarise the relevant tests gathered from the decision in the Intemational Airport 730 Authority's case as follows:

(1)"One thing is clear that if the entire share capital of the corporation is held by Government it would go a long way towards indicating that the corporation is an instrumentality or,agency of Government."

(2)"Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character."

(3)"It may also be a relevant factor...

whether the corporation enjoys monopoly status which is the State conferred or State protected."

(4)"Existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality.' (5)"If the functions of the corporation of public importance and closely related t o governmental functions, it would be a relevant factor in classifying the corporation as an insmmentality or agency of Government."

(6)"Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government." If on a consideration of these relevant factors it is found that the corporation is an instrumentality or agency of government, it would, as pointed out in the Inter alia Airport Authority's case, be an 'authority' and, therefore, 'State' within the meaning of the expression in Article 12.

We find that the same view has been taken by Chinnappa Reddy, J. in a subsequent decision of this Court in the UP. Warehousing Corporation v. Vijay Narain [1980] 3 SCC 459 and the observations made by the learned Judge in that case strongly reinforced the view,we are 731 taking particularly in the matrix of our constitutional system."

Ranganath Mishra, J. (as he then was), speaking for the Court, after a succinct analysis of the entire case law on the subject concludes in Tekraj Vasandi v. Union of India [1988] 1 SCC 236 at page 257 as under:

"We have several cases of societies registered under Societies Registration Act which have been treated as 'State' but in each of those cases it would appear on analysis that either governmental business had been undertaken by the Society or what was expected to be the public obligation of the 'State' had been undertaken to be performed as a part of the Society's function. In a Welfare State, as has been pointed out on more than one occasion by this Court, governmental control is very pervasive and in fact touches all aspects of social existence. In the absence of a fair application of the tests to be made, there is possibility of turning every non-governmental society into an agency or instrumentality of the State. That obviously would not serve the purpose and may be far from reality. A broad picture of the matter has to be taken and a discerning mind has to be applied keeping the realities and human experiences in view so as to reach a reasonable' conclusion. Having given our anxious consideration to the facts of this case, we are not in a position to hold that ICPS is either an agency or instrumentality of the State so as to com e within the purview of 'other authorities' in Article 12 of the Constitution. We must say that ICPS is a case of its type typical in many ways and the normal tests may perhaps not properly apply to test its character.' The same learned Judge, after referring to the tests adumberated in Ajay Hasia (supra), holds in All India Sainik Schools Employees Assn. v. Sainik Schools Society, [1989] Supp 1 SCC 205 at 212:

"...... that the Sainik School Society is also 'State'. The entire funding is by the State Governments and the Central Government. The overall control vests in the governmental authority. The main object of the Society is 732 to run schools and prepare students for the purpose of feeding the National Defence Academy. Defence of the country is one of the regal functions of the State."

Applying these tests, we find it impossible to hold that a private educational institution either by recognition or affiliation to the university could ever be called an 'instrumentality of State. Recognition is for the purposes of conforming to the standards laid down by the State. Affiliation is with regard to the syllabi and the course of study. Unless and until they are in accordance with the prescription of the University, degrees would not be conferred. The educational institutions prepare the students for the examination conducted by the university. Therefore, they are obliged to follow the syllabi and the course of the study.

As a sequel to this, an important question arises: what is the nature of functions discharged by these institutions ? they discharge a public duty. If a student desires to acquire a degree, for example, in medicine, he will have to route through a medical college. These medical colleges are the instruments to attain the qualification. If, therefore, what is discharged by the educational institution, is a public duty that requires, duty and act fairly. In such a case, it will be subject to Article 14. Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvama Jayanti Mahotsav Samarak Trust v. VR. Rudani, [1989] 2 SCC 691 is an interesting case where a writ of mandamus was issued to a private college. In paragraph 12 at page 697 it was held:

"The essense of the attack on the maintainability of the writ petition under Article 226 may now be examined. It is argued that the management of the college being a trust registered under the Bomaby Public Trust Act is not amenable to the writ jurisdiction of the High Court. The contention in other words, is that the trust is a private institution against which no writ of mandamus can be issued. In support of the contention, the counsel relied upon two decisions of this Court: (a) Executive Committee of Vanish Degree College, Shamli v. Lakshmi Narain, [1976] 2 SCC 58 and (b) Deepak Kumar Biswas v. Director of Public Instructions, [1987] 2 SCC

252. In the first of the 733 two cases, the respondent institution was a Degree College managed by a registered co- operative society. A suit was filed against the college by the dismissed principal for reinstatement. It was contended that the Executive Committee of the college which was registered under the Co-operative Societies Act and affiliated to the Agra University (and subsequently to Meerut University) was a statutory body. The importance of this contention lies in the fact that in such as case, reinstatement could be ordered if the dismissal is in violation of statutory obliga- tion. But this Court refused to accept the contention. It was observed that the management of the college was not a statutory body since not created by or under a statute. It was emphasised that an institution which adopts certain statutory provisions will not become a statutory body and the dismissed employee cannot enforce a contract of personal service against a non-statutory body."

At paragraphs 15 to 20 it was held:

"If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie.These are two exceptions to mandamus. But once these are absent and when the party has no other equa lly convenient remedy, mandamus cannot be, denied. It has to be appreciated that the appellants-trust was managing the affiliated college to which public money is paid as government aid. Public money paid as government aid plays a major role in the control maintenance and working of educational institutions. The aided institutions like government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities Employment in such institutions, therefore, is not devoid of any public character. (See The Evolving Indian I Administrative Law by M.P. Jain (1983) p. 226) So are the service conditions of the academic staff. When the 734 University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right-duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party. The law relating to mandamus has made the most spectacular advance. It may be recalled that the remedy by prerogative writs in England started with very limited scope and suffered from many procedural disadvantages. To overcome the difficulties, Lord Gardiner (the Lord Chancellor) in pursuance of Section 3(1)

(e) of the Law Commission Act, 1965, requested the Law Commission 'to review the existing remedies for the judicial control of administrative acts and omissions with a view to evolving a simpler and more effective procedure'. The Law Commission made their report in March 1976 (Law Commission Report No. 73). It was implemented by Rules of Court (Order 53) in 1977 and given statutory force in 1981 by Section 31 of the Supreme Court Act, 1981. It combined all the former remedies into one proceeding called Judicial Review. Lord Denning explains the scope of this "judicial review:

"At one storke the courts could grant whatever relief was appropriate. Not only certiorari and mandamus, but also declaration and injunction. Even damages. The procedure was much more simple and expeditious. Just a summons instead of a writ. No formal pleadings. The evidence was given by affidavit. As a rule no cross-examination, no discovery, and so forth. But there were important safeguards. In particular, in order to qualify, the applicant had to get the leave of a judge.

The statute, is phrased in flexible terms. it gives scope for development. It uses the words 'having regard to 735 Those words are indefinite. The result is that the courts are not bound hand and foot by the previous law. They are to 'have regard to' it. So the previous law as to who are and who are not public authorities, is not absolutely binding.. Nor is the previous law as to the matters in respect of which relief may be granted. This means that the judges can develop the public law as they think best. That they have done and are doing. (See The Closing Chapter by Rt. Hon. Lord Denning p.

122)"

There, however, the prerogative writ of mandamus is confined only to public authorities to compel performance of public duty. The 'public authority' for them mean every body which is created by statute and whose powers and duties are defined by statute. So government departments, local authorities, police authorities, and statutory undertakings and corporations, are all 'public authorities'. But there is no such limitation for our High Courts to issue the writ in the nature of mandamus. Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law.

Under Article 226, writs can be issued to "any person or authority". It can be issued 'for the enforcement of any of the fundamental rights and for any other purpose".

226.Power of High Courts to issue certain writs. (1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority including in appropriate cases, any government within those territories directions orders and writs, including writs in the nature of habeas corpus, mandamus, prohibition quo warranto and certiorari or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose.

The scope of this article has been explained by Subba 736 Rao, J., In Dwarkanath v. ITO, [1965] 3 SCR 536:

This article is couched in comprehensive phraseology and it ex-facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other then the prerogative writs. It enables the High Court to would the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with, that of the English courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in ,a comparatively small country like England with a unitary form of government into a vast country like India functioning under a federal structure. Such a construction a construction defeats the purpose of the article itself.

The term "authority" used in Article 226, the context must receive a liberal meaning unlike the term in Article 12. Artcle 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "any person or authority' used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body.The duty must be judge in the light 737 of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied. The emphasis in this case is as to the nature of duty imposed on the body. It requires to be observed that the meaning of authority under Article 226 came to be laid down distinguishing the same term from Article 12. In spite of it, if the emphasis is on the nature of duty on the same principle it has to be held that these educational institutions discharge public duties. Irrespective of the educational institutions receiving aid it should be held that it is a public duty. The absence of aid does not detract from the nature of duty.

In R. v. Panel on Take-Overs, 1987 (1). All England Reports 564 at page 568 it is observed:

"The principal issue in this appeal, and the only issue which may matter in the longer term, is whether this remarkable body is above law. Its respectability is beyond question. So is its bona fides. I do not doubt for one moment that it is intended to and does operate in the public interest and that the enormously wide discretion which it arrogates to 'itself is necessary if it is to function efficiently and effectively. While not wishing to become 'involved in the political controversy on the relative merits of self-regulation and governmental or statutory regulation, I am content to assume for the purposes of this appeal that seff-regulation is preferable in the public interest. But that said, what is to happen if the panel goes off the rails ? Suppose, perish the thought, that it were to use its powers 'in a way in which was manifestly unfair. What then ? Counsel for the panel submits that the panel would lose the support of public opinion in the financial markets and would be unable to continue to operate. Further or alternatively, Parliament could and would intervene. Maybe but how long would that take and who in the meantime could or would come. to the assistance of those who were being oppressed by such conduct"?

738 At page 574 it is held:

"The picture which emerges is clear. As an act of government it was decided that, in relation to takeovers, there should be a central self-regulatory body which would be supported and sustained by a periphery of statutory powers and penalties wherever non-

statutory powers and penalties were insufficient or non-existent or where EEC requirements called for statutory provisions."

At page 577 it is held:

"In fact, given its novelty, the panel fits surprisingly well into the format which this court had in mind in R.v. Criminal Injuries Compensation Board. It is without doubt performing a public duty and an important one. This is clear from the expressed willingness of the Secretary of State for Trade and Industry to limit legislation in the field of takeovers and mergers and to use the panel as the centerpiece of his regulation of that market. The rights of citizens are indirectly affected by its decisions, some, but by no means all of whom, may in a technical sense be said to have assented to this situation, e.g. the members of the Stock Exchange. At least in its determination of whether there has been a breach of the code, it has a duty to act judicially and it asseas that its raison deter is to do equity between one shareholder and another. Its source of power is only partly based on moral persuasion and the assent of institution and their members, the bottom line being the statutory powers exercised by the Department of Trade and Industry and the Bank of England. In this context I should be very disappointed if the courts could not recognise the realities of executive power and allowed their vision to the clouded by the subtlety and sometimes complexity of the way in which it can be exerted.

Given that it is really unthinkable that, in the absence of legislation such as affects trade unions, the panel should go on its way cocooned from the attention of the courts, in defence of the citizenry, we sought to investigate 739 whether it could conveniently be controlled by established forms of private law e.g. torts such as actionable combinations in restraint of trade, and, to this end, pressed counsel for the applicants to draft a writ. Suffice it to say that the result was wholly unconvincing and, not surprisingly, counsel for the panel did not admit that it would be in the least effective."

At page 584 it is held:

"More recently in R.v. BBC, ex p Lavelle, (1983) 1 AU. ER 2451 (1983) 1 WLR Woolf J had to consider an application for judicial review where the relief sought was an induction under Ord 53, 1 (2). The case was brought by an employee of the BBC. In refusing relief Woolf J said (1983) 1 AD ER 241 at 249, 1983 1 WLR 23 at 31:

"Paragraph (2) of r 1 of Ord 53 does not strictly confine applications for judicial review to cases where an order for mandamus, prohibition or certiorari could be granted. It Merely requires that the court should have regard to the nature of the matter 'in respect of which such relief may be granted. However, although applications for judicial review are not confined to those cases where relief could be granted by way of prerogative order, I regard the wording of Ord 53, r 1 (2) and sub- s (2) of s 31 of the Supreme Court Act 1981 as making it clear that the application for judicial review is confined to reviewing ac- titivities of a public nature as opposed to those of a purely private or domestic character. The disciplinary appeal procedure set up by the BBC depends purely on the contract of employment between the applicant and the BBC, and therefore it is a procedure of a purely private or domestic character."

739 PRIVATE COLLEGES AND THEIR ROLE.

The Union of India takes the stand that the Central Government does not have the resources to undertake any additional financial responsibility for medical or technical education. Taking the case of medical 740 education, the total plan outlay for the health sector is 3.2 per cent and medical education gets a pro-rata share after apportionment of priorities and allocation of available funds. Priorities include promotions of primary health, hospital services etc. The Government in particular is unable to aid any private educational institution financially at levels higher than at present. Certain statistical details regarding the cost of medical education have been given in the counter affidavit of the Central Government. Paragraphs 5 to 9 of the affidavit may kindly be seen in this connection.

It has, therefore, been the policy of the Central Government to involve private and voluntary efforts in the sector of education in conformity with accented norms and goals. The adverse consequences which will follow if private educational institutions have to limit themselves to a fee structure which is charged in Government medical and technical educational institutions have been enumerated in paragraph 9 of the counter affidavit of the Union of India. The Central Government's policy on education was formulated in the year 1986. Modifications were undertaken in 1992. The relevant extracts from the National Policy on Education, being paragraph 6.20, 10.1, 10.9 and 11.2 are set out herein below:

"6.20 In the interests of maintaining standards and for several other valid reasons, the commercialisation of technical and professional education will be curbed. An alternative system will be devised to involve private and voluntary effort in this sector of education, in conformity with accepted norms and goals."

"10.1 An overhaul of the system of planning and the management of education will receive high priority. The guiding considerations will be:

(a) Evolving a long- term planning and management perspective of education and its integration with the country's developmental and manpower needs:

(b) Decentralisation and the creation of a spirit of autonomy for educational institutions;

741 (c)Giving pre-eminence to people, involvement, including association of non-governmental agencies and voluntary effort;

(d)Inducting more women in the planning and management of education;

(e)Establihing the principle of accountability in relation to given objectives and norms."

"10.9 Non-Government and voluntary effort including social activist groups will be encouraged, subject to proper management, and financial assistance provided. At the same time, steps will be taken to prevent the establishment of institutions set up to commercialise education."

"11.2 Resources, to the extent possible, will be raised by mobilising donations, asking the beneficiary communities to maintain school buildings and supplies of some consumables, raising fees at the higher levels of education and effecting some savings by the efficient use of facilities. Institutions involved with research and the development of technical and scientific manpower should also mobilize some funds by levying a cress or charge on the user agencies, including Government departments, and entrepreneurs. All these measures will be taken not only to reduce the burden on State resources but also for creating a greater sense of responsibility within the educational system. However, such measures will contribute only marginally to the total funding. The Government and the community in general will find funds for such programmes as; the universalisation of elementary education; liquidating illiteracy; equality of access to educational opportunities to all sections throughout the country; enhancing the social relevance, quality and functional effectiveness of educational programmes;

generating knowledge and developing technologies in scientific fields crucial to self-sustaining economic development and creating a critical consciousness of the values and imperatives of national survival."

742 Therefore, as on today, it would be unrealistic and unwise to discourage private initiative in providing educational facilities, particularly for higher education. The private sector should be involved and indeed encouraged to augment the much needed resources in the field of education, thereby making as much progress as possible in achieving the constitutional goals in this respect. It could be concluded that the private colleges are the felt necessities of time. That does not mean one should tolerate the "so-called colleges" run in thatched huts with hardly any equipment, with no or improvised laboratories, scarce facility to learn in an unhealthy atmosphere, far from conducive to education. Such of them must be put down ruthlessly with an iron hand irrespective of who has started the institution or who desires to set up such an institution. They are poisonous weeds in the field of education. Those who venture are financial adventurers without morals or scrupules. Their only aim is to make money, driving a hard bargain, exploiting eagerness to acquire a professional degree which would be a passport for employment in a country rampant with unemployment. They could be even called pirates in the high seas of education.

At this juncture, it is worthwhile to refer to the Resolution passed at the 48th AR India Medical Conference:

"Resolution No. 2 Racketeering in Medical Education:

Whereas, a number of institutions have sprung up in the country that style themselves as Medical College; and Whereas, such institutions charge large sums as capitation fees, a practice which the Indian Medical Association and the Medical Council of India have opposed a number of times; and Whereas, such institutions neither have suitable buildings, nor proper equipment and even lack adequate staff of requisite qualifications and further it has come to light that these institutions swindle the public by taking large sums, of money from students although these institutions have not been recognised by the authorities;

743 This 48th All India Medical Conference urges upon the Governments to take stringent measures against persons/institutions who/which run such medical colleges and close them and recommend to the Medical Council of India not to grant them recognition. (48th Conference Dec. 29, 31, 1972 at Ahmedabad)" However, a word of caution requires to be uttered. Not all the private instutions belong to this category. There are institutions which have attained great reputation by devotion and by nurturing high educational standards. They surpass the colleges run by the Government in many respects. They require encouragement. From this point of view regulatory controls have to be continued and strengthened. The commercialisation of education, the racketeering must be prevented. The State should strive its utmost in this direction.

Regulatory measures must so ensure that private educational institutions maintain minimum standards and facilities. Admission within all groups and categories should be based only on merit. There may be reservation of seats in favour of the weaker sections of the society and other groups which deserve special treatment. The norms for admission should be pre-determined, objective and transparent. Before the scheme, a question may arise whether a mandamus could issue for the enforcement of scheme if proposed by the Court. For this, we may look up at Suman Gupta and Ors. v. State of J & K and Ors., [1983] 3 SCR 985 at page 991:

"The Medical Council of India is directed to formulate a proper constitutional basis for determining the selection of candidates for nomination to seats in Medical Colleges outside the State in the light of the observations contained in this judgment. Until a policy is so formulated and concrete criteria are embodied in the procedure selected, the nominations shall be made by selecting candidates strictly on the basis of merit, the candidates nominated being those, in order of merit, immediately below the candidates selected for admission to the Medical Colleges of the home State."

744 It cannot be gainsaid that profiteering is an evil. If a public utility like electricity could be controlled, certainly, the professional colleges also require to be regulated.

In Kerala State Electricity Board v. S.N. Govinda Prabhu, [1986] 3 SCR it is held:

"It is a public utility monopoly undertaking which may not be driven by pure profit motive not that profit is to be shunned but that service and not profit should inform its actions. It is not the function of the Board to so manage its affairs as to earn the maximum profit even as a private corporate body may be inspired to earn huge profits with a view to paying large dividends to its shareholders. But it does not follow that the Board may not and need not earn profits for the purpose of performing its duties and discharging its obligations under the statute. It stands to common sense that the Board must manage its affairs on sound economic principles. Having ventured into the field of Commerce, no public service urdertaking can afford to say it will ignore business principles which are as essential to public service undertakings as to Commercial ventures."

At pages 650-51 it is held:

"The Board may not allow its character as a public utility undertaking to be changed into that of a profit motivated private trading or manufacturing house. Neither the tariffs nor the resulting surplus may reach such heights as to lead to the inevitable conclusion that the Board has shed its public utility character. When that happens the Court may strike down the revision of tariffs as plainly arbitrary."

In Oil and Natural Gas Commission and Anr v. Association of Natural Gas Conmming Industries of Gujarat and others, [1990] Supp. SCC 397 at 399 it is held:

The notion that the 'cost plus' basis can be the only criterion for fixation of prices in the case of public 745 enterprises stems basically from the concept that such enterprises should function either on a no profit no loss basis or on a minimum profit basis. This is not a correct approach. In the case of vital commodities or services, while private concerns must be allowed a minimal return on capital invested, public undertakings or utilities may even have to run at losses, if need be and even a minimal return may not be assured. In the case of less vital, but still basic commodities, they may be required to cater to needs with a minimum profit margin for themselves. But given a favourable area of operation, "commercial profits' need not be either anathema or forbidden fruit even to public sector enterprises."

In Hindustan Zinc Ltd v. A.P.S.E.B., [1991] 3 SCC 299 at pages 306-307 it is held: "This Court expressly rejected the submission which had found favour with the Kerala High Court that in the absence of a specification by the State Government, the position would be as it was before the 1978 amendment, that is, the Board was to carry on its affairs and adjust the tariffs in such a manner as not to incur a loss and no more. While rejecting the submission, this Court held as under: (SCC pp. 213-14, para 10) "We are of the view that the failure of the government to specify the surplus which may be generated by the Board cannot prevent the Board from generating a surplus after meeting the expenses required to be met. Perhaps, the quantum of surplus may not exceed what a prudent public service undertaking may be expected to generate without sacrificing the interests it is expected to serve and without being obsessed by the pure profit motive of th e private entrepreneur. The Board may not allow its chara cter as a public utility undertaking to be changed into that of a profit motivated private trading or manufacturing household. Neither the tariffs nor the resulting surplus may reach such heights as to lead to the inevitable conclusion 746 that the Board has shed its public utility character. When that happens the Court may strike down the revision of tariffs as plainly arbitrary. But not until then. Not, merely because a surplus has been generated, a surplus which can by no means be said to be extravagant. The court will then refrain from touching the tariffs. After all as has been said by this Court often enough 'price fixation' is neither the forte nor the funtion of the Court."

It cannot be conteded that education must be available free and it must be run on a charitable basis. In this connection, we may usefully quote P.R. Ganapathy Iyer's The Law relating to Hindu and Mahomedan Endowments, as to the concept of charity which is elastic. At page 46 of Chap. III it is stated:

"A charitable establishment is a choultry, college, dispensary etc., while a religious establishment is a mosque, temple etc. For these endowments may be made.' At page 47 it is stated:

"In English law the word 'charity' has both a popular and a technical meaning. The popular meaning of the word does not coincide with its legal or technical meaning. Even according to the popular or ordinary meaning the word is used in more senses than one. In a narrow and limited sense the ordinary acceptation of the word is "relief of physical necessity or want". (Per Lord Shand in Baird's Trustees v. Lord Advocate, 15 Sess. Cas. 4th Series 682) In a somewhat more extended sense, the ordinary and popular acceptation of the word is 'refief of poverty' and "a charitable act or purpose" consists in refieving poverty or want. (bid per Lord President (Ingfis). In a still more extended sense and in its popular and ordinary acceptation 'charity' comprehends all benefits, whether religious, intellectual or physical bestowed upon persons who, by reason of their poverty, are unable to obtain such benefits for themselves withou t assistance. (Per Lord Watsom in Commissioners for special purposes of Income-tax v. Pemsel (1891) A.C. 531 (557)."

747 At page 49 it is stated:

"Charity in its legal sense as understood in the English Law comprises four principal divisions:- (1) trusts for the relief of poverty-, (2) trusts for the advancement of education; (3) trusts for advancement of religion; (4) and trusts for other purposes beneficial to the community not falling under any of the preceding heads.' In B.K. Mukherjee on the The Hindu Law of Religious and Charitable Trust at page 58 para 2.7A it is stated:

"2.7A. Education:- The second category on charitable trusts in Lord McNaghten's classification comprises trusts for education. These trusts need not be meant exclusively for the poor. Of course, there must be a public purpose, something tending to the benefit of the community. There must be general public benefit through the advancement or furtherance of some educational purpose. But if this important condition is satisfied, the scope of "education" would appear to be fairly wide in several respects.' In St. Stephen's College v. University of Delhi, [1992] 1 SCC 558 at page 609-10 it is held:

"The educational institutions are not business houses. They do not generate wealth. They cannot survive without public funds or private aid. It is said there is also restraint on collection of students fees. With the restraint on collection of fees, the minorities cannot be saddled with the burden of maintaining educational institutions without grant-in-aid. They do not have economic advantage over others. It is not possible to have educational institutions without State aid. This was also the view expressed by Das, CJ., in Kerala Education Bill case, (1970) 2 SCC 417: [1971] 1 SCR 734. The minorities cannot, therefore, be asked to maintain educational institutions on their own."

The time is not yet ripe to hold that education must be made available on a charitable basis. It is true whenever trusts are made for 748 advancement of education it was held to be a charitable purpose. In Special Commissioners of Income-tax v. Pemsel, 3 Tax Cases 53 at 96 the dictum of Lord Macnaghten is as follows:

"No doubt, the popular meaning of the words "charity' and "charitable" does not coincide with their legal meaning, and no doubt it is easy enough to collect from the books a few decisions which seem to push the doctrine of the Court to the extreme, and to present a contrast between the two meanings in an aspect almost ludicrous. But still it is difficult to fLx the point of divergence, and no one has yet succeeded in defining the popular meaning of the word "charity'. The learned counsel for the Crown did not attempt the task. Even the paraphrase of the Master of the Rolls is not quite satisfactory.......... "Charity' in its, legal sense comprises four principal divisions: trusts for the relief of poverty, trusts for the advancement of education, trusts for the advancement of religion, and trusts for other purposes beneficial to the community not falling under any of the preceding heads. The trusts last referred to are not the less charitable in the eye of the law because incidentally they benefit the rich as well as the poor, as indeed every charity that deserves the name must do, either directly or indirectly."

The next case to which reference can be made is The King v. The Commissioner for Special Purposes of the Income-tax, 5 Tax cases 408. The question arose whether the University College of North Wales could be held as established for charitable purposes. Fletcher Moulton, LJ. relying on Pemsel's case (supra) held that a trust for advancement of edur-ation was charitable.

In The Abbey Malvem Wells, Ltd v. Minister of Town and Country Planning, 1951 (2) All England Law Reports 154 at pages 160-161 it was held:

"In the present case, it seems to me that one is entitled, and indeed, bound, to look at the constitutional of the company to see who, in fact, is in control. I find that, by Art. 3 of the company's articles, the company is controlled 749 entirely by a body called a council a body of persons, and, by Art. 64 that body of persons must be the trustees of the trust deed. Therefore, while the company, theoretically, has the power to apply its property and assets for the purpose of making profits and devoting the resulting profit to the distribution of divident among the members, I find that the persons who regulate the operations of the company are not free persons unrestricted in their operations, but are the trustees of the trust deed, and, under the terms of the trust deed, they may use the property of the company only in a particular way and must not make us of the assets of the company for the purpose of a profit-making concern. I find that they are strictly bound by the trusts of the trust deed, and that those trusts are charitable trusts. It seems to me, therefore, that, while nominally the property of the company is held under the provisions of the memorandum and articles of association, in actual fact the property of the company is regulated by the terms of the memorandum and articles of association plus the provisions of the trust deed, and, therefore, the company is restricted in fact in application of its property and assets and may apply them only for the charitable purposes which are mentioned in the trust deed."

This may be so, for the purpose of defining charity, but' in a country like ours it is impossible to hold that such theories could be advanced or implemented. N.P.V. Petitions and Appeals disposed of 750