Right to Education and Capitation Fee: Legal Discourse

I. Introduction

Scientific Education is a prime necessity for development. It is a continuous process. To educate means to spread the knowledge.

‘Right’ means ‘to have authority to claim something.’ The term ‘Education’ is defined in Oxford Advanced Learner’s Dictionary, “A process of teaching, training and learning, especially in schools and colleges, to improve knowledge and develop skills.”

Human civilization has from ancient to modern age tried to know about nature, its nearby environment. It has gained large bulk of information from natural processes. It led to development of the field called SCIENCE. The rules of natural law later developed the field of legal studies. These fields are undergoing change and it will undergo change. Therefore the level of knowledge, definition and scope of a topic has been widened, is widening and it will widen. But the human beings are created in the planet earth by natural cycles of birth.

Man takes birth, gains knowledge in every step of life, mingle it, does researches and provides their observation to the new born. This is the process of gaining knowledge known as education. The lifestyle of the individuals changes gradually through developments. Developments are a result of sincere efforts by thinking, by research.

But the development does not take place at same proportion in every territory. It is different in ways, in qualities, in its essence and scope in different locations. This restricts flow of information or knowledge. This affects the living conditions greatly because those uneducated persons are not acquainted with the new thinking.

The Darwin’s theory of evolution provides that ‘survival of the fittest is only possible in this World.’ Therefore the gap between developed and under-developed is required to be filled. The process of development initiates from a developed i.e. educated mind. So development and education are complementary to each other. The way of thinking refers to socialization of an individual. The process of socialization is subject to norms of the society. But since these norms are developed by human observation so the steering wheel for development of human as well as of society is EDUCATION.

Education sweeps the superstitious beliefs and unscientific thinking of an individual. the object that is in agreement with the law of nature is called scientific. The world is dynamic, the research is continuous and it cannot be absolute at every instance. But the general principle is ‘if you follow the law of nature, nature will support you.’ “Education” is the way devised by which one understands how to follow the law of nature. Therefore education is the key to explore the whole world; to explore the philosophy of life.

India is a country governed by rule of law. Therefore the law of the land, that is, the Constitution of India (hereinafter 'Constitution) contains certain provisions to educate the citizens. The Directive Principles of State Policy are contained in Part IV of the Constitution from Articles 36 to 51. Right to Education has been provided under Article 41, 45 and 46 of the Constitution of India. Article 37 of the Constitution expressly provides that- ‘The provisions contained in this part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.

Does this statement mean that the State can deny in its discretion Right to Education to its citizens to any extent? In Mohini Jain v. State of Karnataka², Supreme Court held that “without making Right to Education under Article 41 of the Constitution a reality, the Fundamental Rights will remain beyond the reach of a large majority which is illiterate.” Before 86^th Constitution Amendment Act 2002, the Right to Education was merely a Constitutional right under Article 45 of our Constitution. in Mohini Jain v. State of Karnataka, certain points were construed like –

(a) Right to Education was defined as a Fundamental right under Article 21, and

(b) the extent of liability of the State over the private educational institutions were referred. The case is as under:

Mohini Jain v. State of Karnataka:

FACTS:

1. The Karnataka State Legislature enacted Karnataka Educational Institutions (Prohibition of Capitation Fee Act, 1984 to eliminate the practice of collecting capitation fee for admitting in educational institutions.

2. Under Section 5(1) of the Act above, a notification was issued to regulate tuition fee charged by private educational institutions in the State. The fees are-

(a) For Government seats- Rs. 2000/- annum;

(b) Karnataka students- Rs. 25,000/- annum;

(c) Indian students outside Karnataka- Rs. 60,000/- annum.

3. During the admission procedure, Miss Mohini Jain was informed-

(a) to pay Rs. 60,000/- annum;

(b) to furnish bank guarantee for remaining 4 years;

(c) to pay capitation fee of Rs. 4,50,000/-.

4. Under Article 32, the notification under Section 5(1) of the Act was challenged which permitted to charge exorbitant fees from students other than those admitted against government quota seats.

5. Mr. C.S. Vaidyanatha, counsel for Karnataka Private Medical Colleges in the State of Karnataka answered–

(a) The private medical colleges in state of Karnataka do not receive any financial aid from Central/State government;

(b) Private Medical colleges incur- Rs. 5,00,000 per student. The students admitted against 40% government seats pay Rs. 2000 per annum;

(c) Apart from the Act, there is no provision in the Constitution or under any other law which forbids capitation fee.

ISSUES FRAMED ARE AS UNDER:

1. IS RIGHT TO EDUCATION GUARANTEED TO PEOPLE OF INDIA UNDER CONSTITUTION?

Court held that “Right to Education is guaranteed under the Constitution” and justified its statement as under-

(a) In para 9, “Both Fundamental Rights and Directive Principles of State Policy are supplementary to each other. Without making Right to Education under Article 41 of the Constitution a reality, the Fundamental Rights will remain beyond the reach of a large majority which is illiterate.

(b) Article 41 of the Constitution provides that “The State shall within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.”

(c) Right to life under Article 21 of the Constitution is not a mere animal right and it includes the Right to live with all attributes of life.³ The Fundamental Rights under Part III and Right to life under Article 21 of the Constitution can be exercised only if a citizen is conscious of its individualistic dignity. Court referred to Article 45 of the Constitution which reads - The State shall endeavour 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. This statement was before 86^th Constitution Amendment Act, 2002.

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

From these Articles under the Constitution of India it is concluded that it is the duty of the State to provide primary education to every citizen of India.

2. IS THE CLASSIFICATION ON BASIS OF RESIDENCE FOR PAYMENT OF FEE VIOLATES ARTICLE 14? IF NOT, WHY?

Education is a State subject. The classification of candidates on the basis of residence is permissible.⁴ The concession to the fees of the residents is permitted because some of them might, after passing out of the college, settle down as doctors and serve the needs of the locality. The classification is thus based on the ground which has a reasonable relation to the subject-matter of the legislation and is in consequence not open to attack. The classification is valid and do not violates Article 14 of the Constitution.

In India the system of paying ‘Guru Dakshina’ was merely to be out of any debt and thus to attain Moksha. This is complementary to the need of money for survival. But this fee cannot be taken so as to purchase the education. Education taking and providing is considered a pious obligation in Indian Hindu philosophy. Court observed, "D.P. Joshi's case is an authority for the proposition that classification on the ground of residence is a justifiable classification under Articles 14 and 15(1) of the Constitution of India."

3. WHETHER THE IMPUGNED NOTIFICATION PERMITS CHARGING OF CAPITATION FEE UNDER THE GUISE OF REGULATING FEES UNDER THE ACT?

The notification provides that –

(a) The candidates admitted to the government medical colleges and those admitted against ‘Government seats’ in private medical colleges have to pay Rs. 2000/- annum and are selected purely on the basis of merit of the candidates.

(b) For the seats other than the Government seats which are to be filled from outside Karnataka the management has been given free hand where the criteria of merit is not applicable and those who can afford to pay Rs. 60,000/- annum are considered at the discretion of the management.

Court held – 'If the State Government fixes Rs. 2000/- annum as the tuition fee in government colleges and for ‘Government seats’ in private medical colleges then it is State responsibility to see that any private college which has been set up with Government permission and is being run with Government recognition is prohibited from charging more than Rs. 2000 from any student who may be resident of any part of India. This type of type of extraction of money in the name of medical education is nothing but the capitation fee. Accordingly, para (1) (d) of the impugned notification is liable to be struck down.'⁵

Court specifically stated, "the State action in permitting capitation fee to be charged by state- recognised educational institutions is wholly arbitrary and as such violative of Article 14 of the Constitution of India........... The Capitation fee brings to the fore a clear class bias."⁶

4. WHETHER THE NOTIFICATION VIOLATES THE “KARNATAKA EDUCATIONAL INSTITUTIONS (PROHIBITION OF CAPITATION FEE ACT 1983”?

The Preamble of the Karnataka Educational Institutions (Prohibition of Capitation Fee Act 1983 Act (hereinafter ' Karnataka Educational Institutions Act') expressly states “An Act to prohibit the collection of capitation fee for admission to educational institutions in the State of Karnataka and matters relating thereto.”

Contravention of the provisions of the Act has been made punishable under Section 7 of the Act with imprisonment for a term which shall not be less than three years but shall not exceed seven years and with fine which may extend to five thousand rupees. Therefore the notification violates the Karnataka Educational Institutions Act.⁷

RATIO DECIDENDI:

1. Education confers the ability to utilize the potential for effective advancement of the different attributes of life. It makes a person to gain knowledge and built skills. Therefore Right to life under Article 21 of the Constitution includes Right to Education.

2. The students who are domicile of the State are given concession in fees because they could serve the people of the locality in future.

3. In India, the concept of capitation fee is contrary to the concept of Education. Capitation fee makes the availability of education beyond the reach of the poor. A poor student with better merit cannot get admission because he has no money whereas the rich can purchase admission. Such a treatment is patently unreasonable, unfair and unjust. These observations of the Hon'ble Supreme Court are in consonance with article 26.1 of the Universal Declaration of Human Rights 1948 (hereinafter 'UDHR 1948') which states:

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

The above questions of law that whether the fundamental right to Education is available to the citizens of India and validity of the concept of capitation fee are considered in J.P. Unni Krishnan v. State of A.P⁸. This case is as under:

Unni Krishnan J.P. v. State of A.P.-

ISSUES FRAMED ARE AS UNDER:

1. Whether Constitution of India guarantees a Fundamental Right to Education to its citizens?

Court held as under:

(a) It is the fundamental right of everyone in this country to live humanely, free from exploitation⁹. A person can live humanely only when he understands human rights and values and is able to follow it in spite of the strive for food, clothing and shelter. Therefore Education is a basic necessity of life.

(b) Secondly in Olga Tellis v. Bombay Municipal Corporation¹⁰, Court held that “Right to life includes Right to livelihood.” Livelihood is based on education. The term livelihood means to work for fulfilling the demands of stomach and life. The State is providing mid-day meal, dress, books and also financial aid for higher education so that, the students instead of bothering for these basic necessities attend the classes in educational institutions.

(c) Fundamental Rights and Directive Principles of State Policy are meant to supplement each other. So both Part III and Part IV of the Constitution of India have to be balanced and harmonized for proper implementation of the Right to (Free and Compulsory) Education Act 2009 (hereinafter 'RTE Act 2009).

(d) It is pertinent to note that in Mohini Jain v. State of Karnataka, Hon'ble Supreme Court observed that the term 'life' in Artilce 21 of the Constitution is broad enough to encompass the fundamental duty of the State to provide “Education at all levels” to all citizens. In this case, Court held that such is much broader interpretation of Right to Education and under the Constitution it must be confined to the text of Articles 41, 45, 46 provided in Part IV, i.e. Directive Principles of State Policy in the Constitution. Right to Free and Compulsory Education to all children up to the age of fourteen years was Fundamental Right under Article 21 of the Constitution before 86^th Constitution Amendment Act 2002, however, the addition of Article 21-A to the Constitution reflects the plenary significance of the Right to Education. Article 21-A to the Constitution states that, 'The state shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.'

(e) Court observed:

"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."¹¹

2. Whether there is a Fundamental Right to establish an educational institution under Article 19 (1) (g) of the Constitution?

Constitution of India guarantees Fundamental Right from Article 12 to 35. Article 19 (1)(g) of the Constitution provides that “All citizens shall have the right to practice any profession, or to carry on any occupation, trade or business.” So, the question arises whether establishing educational institutions can be a profession, occupation, trade or business. Court held that 'establishing educational institutes can be a vocation if not a profession. No profit motive is necessary to treat an activity as a vocation or occupation. Education is an industry.¹²

Hon'ble Supreme Court further observed:

"While we do not with to express any opinion on the question whether 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........"¹³

Two terms ‘Recognition’ and ‘Affiliation’ have been defined as-

“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.'

Educational institutions can be categorized into-

(a) THOSE REQUIRING RECOGNITION- All the private institutes other than those established by minority community.

To run an educational institution is dependent on the recognition and affiliation by the State (University). Since it requires the permission of a State, it cannot be a Fundamental Right.

(b) THAT DO NOT REQUIRE RECOGNITION- The minority institutes do not require recognition or permission from the State for their establishment.

Article 30 of the Constitution confers right to the minority communities (religious and linguistic) to establish and administer (run) the educational institution of their choice. This means these institutions do not require recognition and affiliation. This has been done-

(i) to preserve their language, script or culture of its own;

(ii) to preserve and strengthen the integrity and unity of the country;

(iii) for giving freedom to them to provide religious instruction or for imparting education.

It is concluded by the Hon'ble Supreme Court that there is no Fundamental Right to establish an educational institution under Article 19 (1)(g), if recognition or affiliation is sought for such an educational institution.

3. Does recognition or affiliation makes the educational institution an instrumentality of State?

Yes the recognition and affiliation of the educational institution makes it an instrumentality of the State. This has been justified as under:

(a) The educational institutions prepare the students for the examination to be conducted by the University. Therefore they are obliged to follow the syllabi and the course study.

(b) Accordingly, the function of educational institutions is-

(i) of public importance and

(ii) they are Governmental functions.

Therefore the private educational institutes are also “STATE” according to the grounds laid down in the case of Ajay Hasia v. Khalid Mujib¹⁴. The grounds that confirm these institutions as a STATE are-

(i) Whether the Corporation enjoys monopoly status which is State conferred or State protected;

(ii) If the functions of the Corporation are of public importance and closely related to governmental functions.

Therefore all educational institutions which fall under this category are STATE under Article 12 of the Constitution.

4. Whether charging capitation fee or extra fee by private educational institutions is valid?

Court held that-

• Capitation fee does not cease to be so if it is said to be the cost of education.¹⁵
• The very concept of collecting the cost of education is morally abhorrent and is opposed to public policy. It is nothing but exploitation. It is an elitist concept basically opposed to the constitutional philosophy.¹⁶
• a private body or an individual to perform the said function it is its duty to ensure that no one gets an admission or an advantage on account of his economic power to the detriment of a more meritorious candidate.¹⁷ This is because Education can never be purchased.
• The capital cost cannot be charged from the candidates.¹⁸ Therefore, the Hon'ble Supreme Court asserted that the admission of students shall be on the basis of merit only, in whichever category it may be.

5. Liability on private educational institutions due to the element of public character.

The quality and standard of instruction in most of the Government schools and colleges, except the professional colleges is woeful. However, the private educational institutions cannot be compelled to charge only that fee as is charged in Governmental institutions. Court held that-

(A) In case of engineering colleges, permission is being granted by the All India Council for Technical Education subject to the condition that they do not collect any capitation fee;

In case of medical colleges, Medical Council of India had disapproved the grant of affiliation on the ground of collection of capitation fees.

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

(C) Conditions of grant of aid –

(i) Admissions within all groups and categories should be based on merit.

(ii) They shall not be entitled to charge fees higher than that of Governmental institutions because public funds, when given as grant of aid carry the public character wherever they go.

6. Can writ of mandamus be issued to a private educational institute?

If private institutions are discharging public duty, that is, imparting education to the students then they must act fairly. But in case they does not, it violates Fundamental Right of the citizens under Article 14 of the Constitution.

The violation of Fundamental Rights can be challenged by filing a Writ petition in Supreme Court under Article 32 and in the High Court under Article 226 of the Constitution.

Right to life (a Fundamental Right) includes right to live with dignity.¹⁹ Right to Education is a pre-requisite to live with dignity was defined in Mohini Jain v. State of Karnataka in 1992. Therefore Right to Education is a Fundamental Right under Article 21 of the Constitution. Before this case, in Shri Anandi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani²⁰, Court held that –

(i) Article 226 confers power on the High Courts to issue writs for enforcement of the Fundamental Rights as well as non-fundamental Rights.

(ii) Article 32 is a remedy for enforcing the rights conferred by part II. The fundamental rights as well as the Directive Principles are available to the citizens against the State.

The private educational institutions discharge function for public by imparting education. They are subject to the rules of the affiliating University. A University is a State. Therefore a writ of mandamus and any other writ under Article 226 can be issued to a private educational institute.

RATIO DECIDENDI:

1. The citizens of the country have Fundamental right to Education. This right flows form Right to life under Article 21 but its parameters are to be determined from Articles 45 and 41. This means that after elementary education, the Right to Education is subject to the economic capacity and development of the State.

2. There is no Fundamental Right to establish an educational institution under Article 19 (1)(g) of the Constitution since it requires recognition and affiliation by the University.

3. A private educational institute performs public duty under the control of the affiliating University so it is State within the meaning of Article 12 of the Constitution.

4. the levy of Capitation fee is discrimination and violation of Article 14 of Constitution.

5. Court laid a SCHEME under which-

(i) For both 50% reserved seats and 50% unreserved, the Selection criteria for all students shall be exclusively on the basis of merit.

(ii) Regulation regarding number of seats, criteria for calling admission forms for admission, ceiling fee, qualification for admission and declaration of result are laid down.

Therefore it is well-settled that Right to education is a Fundamental Right by its interpretation under Right to Life (Article 21). Since without the Fundamental Rights, education will remain beyond the reach of a large majority which is illiterate, so to emphasize and provide Right to Education to the citizens, Parliament by 86^th Constitution Amendment Act, 2002 inserted Article 21-A in the Constitution. Article 21-A of the Constitution provides that- “The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the state may, by law, determine.”

II. Need of making education a fundamental right

1. Education determines the thinking of a person. It regulates message from brain, work potential and interest in the work and it is the only tool for protection of Human Rights. Human Rights are fundamental in nature.

2. Right to life includes Right to live with dignity. This depends on livelihood. The medium of livelihood depends on skill which can be attained by Education.

3. Article 26.2 of the UDHR 1948 emphasizes ‘Education shall be directed to the full development of the human personality.’

4. Education is the means to exercise and to claim Fundamental Rights and all legal/ Constitutional Rights.

5. It determines the purpose of Life.

III. Changes made by 86^th constitution amendment act, 2002

1. Right to Education was made a Fundamental Right under article 21-A of the Constitution.

2. The rights of children under Article 39(f) of the Constitution were strengthened by amended Article 45. Article 45 of the Constitution after amendment provides that ‘The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years'.

3. It became a Fundamental Duty of every parent/ guardian to provide opportunities for education to his child or, as the case may be, ward between the age fo six to fourteen years under Article 51 A (k). Clause (k) in article 51 A was inserted by 86^th Constitution Amendment Act, 2002.

4. It became obligatory for state to provide Right to Education to all the children because-

(a) The Fundamental Rights under the Constitution cannot be exercised without education.

(b) It is presumed that every individual knows law of the land. Therefore no one can claim as defence that due to any reason he/ she was not aware of its duty and law of the country.

(c) Right to Education has been made a Fundamental Right under Article 21-A. So the same right can be challenged in a court of Law.

IV. Criticism of right to (free and compulsory) education act 2009

1. All the provisions of the RTE ACt 2009 applies to private schools also. If a child is not punished for any violation of the rules or is not held back in any class in any case then it may dilute or effect the standard of teaching in such a school.

2. The RTE ACt 2009 does not apply to minority unaided schools to preserve their unique culture and identity. But India is a Secular Nation. So all the educational institutions should be prohibited from taking capitation fees, from subjecting the students to screening procedure and all evils that pose a hindrance towards imparting the education.

V. Conclusion

Preamble to the Constitution of India provides '….assuring the dignity of the individual and unity and integrity of the nation'. Education makes a person to reason a thing in a scientific way. The fundamental Rights under Part III and Directive Principles are provided to ensure integrity in the life. So Education plays a fundamental role in apprehending the dynamics of life.

The minority institutions were permitted to setup exclusively by the minorities so as to preserve their unique culture, language, script and other identities. This was also done to preserve the unity and integrity of the Nation.

Article 26.2 of the UDHR 1948 states, 'Everyone has the right to Education'. Therefore, the reasoning of the Hon'ble Supreme Court in cases of Mohini Jain and Krishnan against the levy of capitation fee from the students, even on the basis of their residence is in consonance with the provisions of the UDHR. Such observations aim to preserve the essence of right to education enshrined in Article 21 A of the Constitution to ensure free and compulsory education to all children from the age of six to fourteen years. The decision further protects against any such discrimination on the basis of financial status when the child applies in a higher educational institution. Hon'ble Supreme Court observed:

"The capitation fee brings to the fore a clear class bias. It enable the rich to take admission whereas the poor has to withdraw dur to financial inability. A poor student with better merit canoot get admission because he has no money whereas the rich can purchase the admission. Such a treatment is patently unreasonable, unfair and unjust. There is, therefore, no escape from the conclusion that charging of capitation fee in consideration of admissions to educational institutions is wholly arbitrary and as such infracts Article 14 of the Constitution."

The enactment of RTE Act 2009 and insertion of Article 21-A of the Constitution are praise worthy attempts of the State to ensure right to Education to its citizens. It could be averred that Article 21-A of the Constitution connotes the prime necessity of Right to Education for ensuring Right to Life under Article 21 of the Constitution.

VI. Suggestions

1. The affiliation and recognition, teacher-student ratio and the presence of teachers in class is not required in minority institutes but the State should endeavour to make all students unified in these terms because these criteria(s) can be said to be the basic structure for education.

2. The State should endeavour to assure implementation of rules laid down in Right to Education Act 2009 in private educational schools for all students in furtherance of its attempt for implementing Uniform Civil Code under Article 44 of the Constitution of India.

3. The government schools must be strengthened in proportion to the relative levels of education in private schools in order to wipe out the evils like capitation fee, school drop-out rate, etc.

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