# UNNI KRISHNAN, J.P. AND ORS. Etc. irrc v. ~ STATE OF ANDHRA PRADESH AND ORS. ETC. ETC. "

- **Citation:** [1993] 1 S.C.R. 594
- **Court:** Supreme Court of India
- **Decided:** 1993-02-04
- **Bench:** L.M. Sharma, S. Ratnavel Pandian, S. Mohan, B.P. Jeevan Reddy, S.P. Bharucha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/unni-krishnan-j-p-and-ors-etc-irrc-v-state-of-andhra-pradesh-and-ors-etc-etc-11908
- **Pages:** 156

## Headnote

Constitution of India, 1950:
4_c
Articles 21, 41, 45 and 46--Right to education--Whether a fundamental
right-Held: Every child/citizen has a right to free education up to the age oj
14 years and thereafter it is subject to limits of economic capacity and
development -of the State-State obliged to follow directions contained in
Article 45-,4.rticle 21 to be construed in the light of Articles 41, 45 and 46.
D
Article 21-Right to Education-Whether implicit under tlie Article-Whether flows from right to life and personal liberty-Extent' and content of the right.
Parts JU and IV-Fundamental Rights and Directive Principia--
Whether complementary to each other-Whether a right could be f'eCognised
E as a fundamental right even though not expressly mentioned.
---( -
Articles 14, 15, 21, 41, 45 and 46--l'rivate unaided recognised affiliated
educational insti"'tions running professional courses -lilui engineering and
medic_al courses-Whether entitled to charge a fee higher than that charged by
IF
Government instituti~eld: Entitled to charge a higher fee but such a fee
cannot exceed the ceiling fixed in this reganJ--However, commerrialisation of
education riot pennissibl~apitation fee-Meaning of.
,...-- --
Whether private aided recogniSed/affiliated educational institutions
governed by rules and regulations framed by GovP.mment in matters of
G admission of students and fee chargeable as also recruitment and conditions
of service etc., vf teachers and staff.
Whether private recognised/affiliated institutions obliged to act fairly
~
consistent with Articles 14 and 15 and in accordance with conditions of grant
of recognition affiliation-Held: as conditions of grant of oi.d, they were
H governed by such rules and regulations-Private institutions receiving aid
·-
594
UNNI KRISHNAN v. STATE OF A.P.
595
obliged to act fairly in consonance with fundamental rights as well as regulaA
lions framed by Govemme-State, while granting recognition/affiliation
obliged to impose conditions for maintaining standards and ensunilg fairness,
inter alia, in respect of fees chargeable and admission.
Admission and chatging of capitation fees in private unaided/Oided
recognised/affiliated educational institution conducting professional courses B
sucli as medical and engineering courses--Scheme framed by Coun eliminating discretion of management in admissions in and fees payable in such
institutions and substituting merit of the students as the "Sole criterion.
Atticle 12-l'rivate institution supplementing State function viz., impal1C
ing education--Whether an instnJmentality of State-Wheilier public duty
pelformed by i4 viz., impatting of education, would make it amenable to PaTt
Ill, such as Ame/es 14 and 15.
Attic/es 19(1)(g) and (6)-Rjght to establish and run educational institutions-Whether a fundamentOl right-lmpaTting education-Whether a D
commercial activily->'lctivity of establishing an education institution--
Whether a professiort-Words . 'Profession', 'Occupation', 'Trade' and
'Business'-Meaning of.
Attic/es 12, 14, 15, 19(1)(g), 21, 30, 41, 45 and 46--Whether private
educational institutions have a fundamental right to recognition/affiliaE
tiort-Whether such a right can be inferred by reading into Attic/e 19( 1) (g) a
right in the nature of Attic/e 30.
Anicles 29 and 3<>-Rights conferred on minorities in a positive
way-Whether negate the assumption of such rights by other citizens.
A.P. Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Ac4 1983:
F
Section 3-A-Power to grant admission to students who qualified in
entrance/qualifying examination irrespective of their ranking in the examina- G
lion and to charge any amount in addition to tuition fee-iVhether violall"ve
of Atticle 14 of the Constitution.
Kamataka Educational Institutions (Prohibition of Capitation Fee)
Ac4 .1984/Maharrμhtra Educatlbnal Institutions (Prohibition of Capitation
Fee) Ac4 1987/Tamil Nadu Educational Institutions (Prohibition of CalleeH
596
SUPR

## Text

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A
UNNI KRISHNAN, J.P. AND ORS. Etc. irrc
v.
~
STATE OF ANDHRA PRADESH AND ORS. ETC. ETC.
"
FEBRUARY 4, 1993
B
(L.M. SHARMA, CJ., S. RATNAVEL PANDIAN, S. MOHAN,
B.P. JEEVAN REDDY AND S.P. BHARUCHA, JJ.)
Constitution of India, 1950:
4_c
Articles 21, 41, 45 and 46--Right to education--Whether a fundamental
right-Held: Every child/citizen has a right to free education up to the age oj
14 years and thereafter it is subject to limits of economic capacity and
development -of the State-State obliged to follow directions contained in
Article 45-,4.rticle 21 to be construed in the light of Articles 41, 45 and 46.
D
Article 21-Right to Education-Whether implicit under tlie Article-Whether flows from right to life and personal liberty-Extent' and content of the right.
Parts JU and IV-Fundamental Rights and Directive Principia--
Whether complementary to each other-Whether a right could be f'eCognised
E as a fundamental right even though not expressly mentioned.
---( -
Articles 14, 15, 21, 41, 45 and 46--l'rivate unaided recognised affiliated
educational insti"'tions running professional courses -lilui engineering and
medic_al courses-Whether entitled to charge a fee higher than that charged by
IF
Government instituti~eld: Entitled to charge a higher fee but such a fee
cannot exceed the ceiling fixed in this reganJ--However, commerrialisation of
education riot pennissibl~apitation fee-Meaning of.
,...-- --
Whether private aided recogniSed/affiliated educational institutions
governed by rules and regulations framed by GovP.mment in matters of
G admission of students and fee chargeable as also recruitment and conditions
of service etc., vf teachers and staff.
Whether private recognised/affiliated institutions obliged to act fairly
~
consistent with Articles 14 and 15 and in accordance with conditions of grant
of recognition affiliation-Held: as conditions of grant of oi.d, they were
H governed by such rules and regulations-Private institutions receiving aid
·-
594
UNNI KRISHNAN v. STATE OF A.P.
595
obliged to act fairly in consonance with fundamental rights as well as regulaA
lions framed by Govemme-State, while granting recognition/affiliation
obliged to impose conditions for maintaining standards and ensunilg fairness,
inter alia, in respect of fees chargeable and admission.
Admission and chatging of capitation fees in private unaided/Oided
recognised/affiliated educational institution conducting professional courses B
sucli as medical and engineering courses--Scheme framed by Coun eliminating discretion of management in admissions in and fees payable in such
institutions and substituting merit of the students as the "Sole criterion.
Atticle 12-l'rivate institution supplementing State function viz., impal1C
ing education--Whether an instnJmentality of State-Wheilier public duty
pelformed by i4 viz., impatting of education, would make it amenable to PaTt
Ill, such as Ame/es 14 and 15.
Attic/es 19(1)(g) and (6)-Rjght to establish and run educational institutions-Whether a fundamentOl right-lmpaTting education-Whether a D
commercial activily->'lctivity of establishing an education institution--
Whether a professiort-Words . 'Profession', 'Occupation', 'Trade' and
'Business'-Meaning of.
Attic/es 12, 14, 15, 19(1)(g), 21, 30, 41, 45 and 46--Whether private
educational institutions have a fundamental right to recognition/affiliaE
tiort-Whether such a right can be inferred by reading into Attic/e 19( 1) (g) a
right in the nature of Attic/e 30.
Anicles 29 and 3<>-Rights conferred on minorities in a positive
way-Whether negate the assumption of such rights by other citizens.
A.P. Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Ac4 1983:
F
Section 3-A-Power to grant admission to students who qualified in
entrance/qualifying examination irrespective of their ranking in the examina- G
lion and to charge any amount in addition to tuition fee-iVhether violall"ve
of Atticle 14 of the Constitution.
Kamataka Educational Institutions (Prohibition of Capitation Fee)
Ac4 .1984/Maharrμhtra Educatlbnal Institutions (Prohibition of Capitation
Fee) Ac4 1987/Tamil Nadu Educational Institutions (Prohibition of CalleeH
596
SUPREME COURT REPORTS
[1993] 1 S.C.R.
A lion of Capitation Fee) Ac4 1992: Constitutional validity of-Held: Constitutional as they do not contain provisions offend;ng Article 14 of the Constitution.
B
In the writ petitions filed before this Court, the correctness of the
decision of this Court in the case of Mohini Jain v. State of Kamataka and
Others, [1992) 3 SCC p. 666 was challenged by private educational institu.
tions, engaged in or proposing to engage in imparting medical and engineering education in the States of Andhra Pradesh, Karnataka,
Maharashtra and Tamil Nadu.
~ -
C
In Mohini Jain's case, this Court had held, inter alia, that every citizen
has a right to education under the Constitution; the State was under an
obligation to establish educational institutions to enable the citizens to
enjoy the said right; the State may discharge its obligation through Stateowned or State-recognised educational institutions; that .when the State
Government granted recognition to the p_rivate edu~tional institutions, it
D created an agency to fulfil its obligation under the Constitution, that
charging capitation fee in consideration of admission to educational institutions, was a patent denial or a citizen's right to education under the
Constitution and that the State action iu permitting capitation fee to be
charged by State-recognised educational institutions was wholly arbitrary
E and, as such, violative of Article 14 of the Constitution; that the capitation
fee brought to the fore a clear class bias; and that when the State Government permitted a private medical college to be set up and recognised its
curriculum and degrees, then the said college was performing a function .
which under the Constitution had been assigned to the State Government
and if the State permitted such institution to charge higher fee from the
F
students, such a fee was not tuition fee, but in fact a capitiition fee.
The aforesaid decision was followed by the Full Bench of the A.P.
High Court in Kranti Parishad v. NJ.· Reddy, (1992] 3 ALT 99 while
allowing the writ petitions filed before it challenging the permission
granted by the State Government for the establishment of private Medical
G and Dental Colleges in the State and also the constitutional validity of
section 3-A of the Andhra Pradesh Educational Institution (Prohibition of
Capitation Fee) Act, 1983. The respondents before the High Court, including the State, filed Special Leave Petitions against the High Court's
judgment. Besides several writ petitions questioning the correctness of the
H decision of this Court in Mohini Jain's case also were filed.
r
UNNI KRISHNAN v. STATE OF AP.
597
The validity of the State enactments of Karnataka, Tamil Nadu and A
Maharashtra and the notifications issued thereunder on the subject of
charging of excess fee from the students was also questioned in the writ
petitions, civil appeals and Special Leave Petitions filed before this Court.
It was contended that (a) the State had no monopoly in the matter B
of imparting education; every citizen had the fundamental right to estab·
lish an educational institution as a part of the right guaranteed to him by
Article 19(1) (g) of the Constitution, which extended even to the establishment of an educational institution with a profit motive i.e., as a
bu"S°iness adventure; the said right was absolute subject, of course, to such
reasonable restrictions as may be placed upon it by a law within the C
meaning of clause (6) of Article 19; (b) the vice was not in the establishment of educational institutions by individuals and private bodies but
in unnecessary State control; the law of demand and supply must be
allowed a free play; (c) the establishment of an educational institution was
no different from any other venture e.g., starting a business or industry; D
it was immaterial whether the institution was established with or without
profit motive; only when there was profit motive that persons with means
would come forward to open more and more schools and colleges; ( d) even
if it was held that a person had no right to establish an educational
iJ!stitutlon as a business venture, he had atleast the right to establish a
self-financing educational institution, which institution might also be
described as one providing cost-based education; and thus, it was open t!l
a person to collect amounts from willing parties and establish an institu·
!ion to educate such persons or their childreu, as the case may be; the
quantum of the fees to be charged in such institution should be left to the
concerned lnsti.tution and the Government should have no say in the
matter; it was not possible for the Court in the very nature of things, to
go into the issue; these private educational institutions were providing a
large number of 'free seats' to the nominees of the Government, and all
these students would not have had an opportunity of studying the course
E
F
of their choice but for the existence of these private educational institu· G
!ions; (e) in these circumstances, Mohini Jain's case was not right in
saying, that charging of any amount, by whatever name it was called, over
and above, the fee charged by the Government in its own colleges, must be
described as capitation fee, and saying so amounted to imposing an
impossible condition, it was not possible for the private educational in·
stltutions to survive if they were compelled to charge only that fee as was H
598
SUPREME COURT REPORTS
(1993) 1 S.C.R.
A charged in Governmental institntions; the cost of educating an engineering or a medical graduate was very high; all that cost was borne by the
State in Governmental Colleges; since the State was not subsidising the
private educational institutions, these institutions had to find their own
finances, and that could come only from the students; (f) even if the right
B
c
to establish an educational institution was not trade or business within
the meaning of Article 19(1)(g), it was certainly an 'occupation' within the
meaning of the said clause; the use of the four expressions-profession,
occupation, trade or business in Article 19(1)(g) was meant to cover the
entire field of human activity; and the petitioners had the right to establish private educational institutions- at any rate, self-financing/cost-based
private educational institutions, which would be restricted only by a law
as contemplated by clause (6) of Article 19; (g) the right to establish and
administer an educational institution (by a member of the minority community, religious or linguistic) arose by necessary implication from Article
30; the Constitution could not have intended to confine the said right only
D to minorities and deprive the majority communities therefrom; (b) the
Government or the university could insist or stipulate as a condition of
recognition/affiliation that the private educational institutions should
admit students exclusively on merit: moreover, there might be several
kinds of private educational institution.s which might 11!' established for
E
F
achieving certain specified purposes viz., to cater to the needs of a par·
ticular region or a district, or to educate children of members or a
pai1icular community, (i) by virtue of mere recognition and/or atllllalion
these private educational institutions did not become instrumentalities or
the State within the meaning of Article U of the Constitution; the concept
of State action could not be extended to those colleges so as to subject
them to the discipline of Part Ill; it might be a different matter if the
Institution was in receipt of any aid, partially and wholly, from the State;
In such a situation, the command of Article 29 (2) came into play, but even
that did not Gblige the institution to admit Llie students exd11sive!y on the
basis of merit • but Gnly not to deny admission to anyone fin 8!>Y cf the.
grounds m~ntioned therein, and (j) that • .\i'!ic!e 21 was lieghti>e iii char·
G acter and it merely declared that !IO person should be deprived of his life
or personal liberty except according to the procedure establish£<! by law,
and since the State was not depriving the respondents-students of their
right to education, Article 21 was not attracted.
H
On behalf of the respondents and the Indian Medical Council and
"·
__,
1
~
·1
UNNI KRISHNAN v. STATE OFAP.
599
All India Council ror Technical Education It was contended that; (a) A
Imparting or education had always been recognised from times Im·
memorial BS the religious duty and also BS B Charitable object, and never
as a trade or business, it was a mission and not a trade, and commer·
dallsatlon or education bad always been looked upon with dis.favour; tbe
Parliament expressed its Intention by enacting in 1956 the University B
· Grants Commission Act which specified the prevention of commercialisa·
tlon ohducation as one of the duties of the University Grants Commls·
slon, which Intention bad also been expressed by several enactments made
by the Parliament aiid State Legislatures since then; (b) imparting or
education was the most Important function of the State which duty might
be discharged by State directly or through the Instrumentality of private C
educational institutions; but when State permitted ·a private body or an
Individual to perform the said function, it was Its duty to ensure that no
one got an admission or an advantage on acc•mnt of his economic power
to ibe detriment or a more m.erltorlous candidate; (c) the very concept of
collecting the cost of education • that was what the concept of cost-based D
or self.linandng educational institutions meant- was morally abhorrent
and was opposed to public policy; a capitation fee did not cease to be a
capitation fee just because it was called as cost·ha..,d education or by
calling the Institution concerned as a self-financing institution; these
expressions were but-a.,_ cover for collecting capitation fee; it was nothing E
but exploitation, an'd\ was an elitist concept basically opposed to the
constitutional philosophy; the concept suffered from class bias and by
allowing such education, two c!asses would come into being; (d) even If it
was held that a citizen or a person. bad a right to establish an educational
Institution, the said right did not carry with It the right to recognition or
the right to affiliation, as the case -y be; even a minority educati11nal F
instltuJon was held by this Court to have no fundamental right to recog·
nltlon or a!rtllatlon; hence such a ripr-could not be envisaged In the case
or majority community cir in the case or individuals or persons, and it was
open to the State or the University according recognition or affiliation to
. Impose such conditions as they think appropriate in the interest of fair· G
ness, merit, maintenance or standards of education and so on, lnduding
that the ad"Uission of students, In whichever category It might be, should
be on the basis of merit and merit alone; the Institutions obtaining
recognition/affiliation would be bound by such condition and any depar·
tore therefrom rendered the recognition/affiliation liable to be withdrawn; H
600
SUPREME COURT REPORTS
(1993) 1 S.C.R.
A
and (e) even if such a condition was not expressly imposed, it was impUcit,
by virtue of the fact that in such a situation, the activity of the private
educational institution was liable to be termed as State action; the fact
that these institutions performed an important public function coupled
with the fact that their activity was closely inter-twined with governmental
B activity, characterised their action as State action; at the minimum, the
requirement would be to act fairly in the matter of admission of students
and probably in the matter of recruitment and treatment of its employees
as well; these institutions were further bound not to charge any fee· or
amount over and above what was charged in. similar governmental institutions; and if they needed finances, they must find them through donations
C or with the help of religious or charitable organisations and they could not
also say that they would first collect capitation fees and with that money,
they would establish an institution; at the worst, only the bare running
charges could be charged from the students and the capital cost could not
be charged from them.
D
On behalf of the Government of India it was submitted that the
Central Gowrnment did not have the resources to undertake any additional financial •'esponsibility for medical or technical education; it was
unable to aid any private educational institution financially at a level
higher than at present; therefore, the policy of the Central Government
E was to involve private and voluntary efforts in the education sector in
conformity with accepted norms and goals; however, the private educational institutions could not be compelled to charge only that fee as was
charged in Governmental institutions; so far as engineering colleges were
concerned, permission was being granted by the A.I.C.T.E. subject to the
F condition that they did not collect any capitation fee;
It was also submitted that (a) conferring unconditional and un·
qualified right to education at all- levels to every citizen involving a con·
stitutional obligation on the State to establish educational institutions
either directJy or through State agencies was not warrt'lnted by the ConG stitution besides being unrealistic and impractical; (lJ) wh•n the Government granted recognition to private educational institutions it did not
create an agency to fulfil its obligations under the Constitution and there
was no scope to import the concept of agency in s!lch a situation; (c) the
principles laid down in Mohilli Jain's case required reconsideration; (d) it
H would be unrealistic and unwise to discourage private initiative in provid-
)
-
\.
UNNI KRISHNAN v. STATE OF AP.
601
ing educational facilities particularly for higher education. The private A
section should be involved and indeed encouraged to augment the much
·~
needed resources in the field of education, thereby making as much
progress as possible in achieving the Constitutional goals in this respect;
(e) at the same time, regulatory controls had to be continued and
strengthened in order to prevent private educational institutions from B
commercialising education; (I) regulatory measures should be maintained
and strengthened so as to ensure that private educational institutions
maintain minimum standards and facilities; (g) admissions within all
- :k
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 c
pre-determined and transparent.
The four State Governments also took a similar stand.
It was submitted on behalf of the students who had obtained admis·
slons against the Management quota of 50% seats, that they were innocent D
parties and had obtained admission in a bonaftde belief that their admissioos were being made properly; they had been studying since then and in
a few months their academic year would come to a close; may be, the
managements were guilty of an irregularity, but so far as the students were
concerned they had done noihing contrary to law to deserve the punish· E
-
~
ment awarded by the Full Bench of the High Court.
1
Disposing of the Writ petitions and appeal~, this Court,
HELD : By the Court,
F
1. The citizens of this country have a fundamental right to educa__..,.
tioo. The said right Dows 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 14 G
years. Thereafter his right to education is subject to the limits of economic
capacity and development of the State. [6938-C]
~·
2.1. The obligations created by Articles 41, 45 and 46 of the Constitu·
tioo can be discharged by the State either by establishing institutions of
its own or by aiding, recognising and/or granting affiliation to private H
602
SUPREME COURT REPORTS
[1993) 1 S.C.R.
A educational institutions. Where aid Is not granted to private edll<"\tlooal
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
B exceeding-the ceiling fDCed in that behalf. The admission of students and
the charging of fee in these private educational institutions shall be
governed by the scheme evolved by this Court. [693D-E)
3. A citizen of this country may have a right to establish an educational institution but no citizen, person or institution has a right much
C
less a fundamental right to affiliation or recognition, or to grant-lo-aid
from the State. The recognition and/or affiliation shall be given by the
State subject only to the conditions set out lo, and in accordance with, the
scheme laid down by this Court. No Government/University or authority
shall b.e competent to grant recognition or affiliation except in accordance
with the said scheme. The said scheme shall constitute a condition of such
D 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. [693F-G)
4. Those institutions receiving aid shall, however, be subject to all
E
such terms and conditions, as the aid giving authority may impose iu the
interest of general public. [693H, 694A]
S. Section 3-A of the Andhra Pradesh Educational Institutions
(Regulation of Admission and Prohibition or Capitation Fee) Act, 1983 is
violative of the equality clause enshrined in Article 14 and Is, therefore,
F
void. (6948]
6. None of the provisions of the enactments of other three States yiz~
Karnataka, Tamil Nadu and Maharashtra says that the Management of a
private educational institution can admit students, against 'payment
seats', 'irrespective of the ranking assigned to them in such test (Entrance
G Test) or examination'. Much less do they say that to such admissions, the
provision prohibiting capitation fee shall not apply. No doubt they cio not
say expressly that such admissions shall be made on the basis of merit,
but that is implicit. If the notifications or orders issued thereunder provide otherwise, either expressly or by implication, they would be equally
H bad. [690H, A-BJ
UNNI KRISHNAN v. STATE OF AP.
603
Per Jeevan Reddy, J. (For himself and Pandian J.) Sharma, a and S.P. A
Bharucha, J. Concutring except on the question of right to education being a
·~
fundamental right.
1.1. Right to eduaition is not stated expressly as a Fundamental
Right in Part Ill of the Constitution of India. HOMVer, having regard to
the fundamental signifiaince of eduaition to the !ife of an individual and B
the nation, right to eduaition is implicit in and Rows from the right to life
gnaranteed by Article 21. That the right to eduaition has been treated as
~-;Jc
one of transcendt:nlal Importance in the life of an individual has been
recognised all over the world. Without edu~tion being provided to the
citizens of this country, the objectives set forth in the Preamble to the C
Constitution ainnot be achieved. The Constitution would fail.
[644G, 652G-H, 653A-B]
Bandhua Mukti Morcha v. Union of India, (1984] 2 S.C.R. 67,
referred to.
Miss Mohini Jain v. State of Kamataka & Ors., [199l] 3 SCC 666,
llftlrmed.
D
1.2. No doubt Article 21, whiCh declares that no person shall be
deprived or his life or personal. liberty except. according to the proced11tt E
established by law, is worded in negative terms, but It is now well-settled that
Artlde 21 has both a negative and an a.ffirmative dimension. It is also well
eslabllshed that the provisions of Parts Ill 'Ind IV are supplementary and
complementary to each other and that Fundamental Rights a~ but a means
to achieve the goal indiaited in Part IV, and that the Fundamental Rights
mnst be construed in the light of the Directive principles, [64SC, 652E]
F
F.xpress Newspapers v. Union of India, (1959] S.C.R. U; Hussain A1r1
Khatoon •· Home Secretary, State of Bihar, (1979] 3 S.C.R. 532; A.R.
Antulay v. R.S. Nayak, (1992] Supp. 1 S.C.R. 225; Olga Tellis v. Bombay
Mwiicipal Corpotation, (1985) Suppl. Z S.C.R. 51; Kharak Singh v. State of_
Uttar Pradesh and 0~1964) 1 S.C.R. JJ2; Vincent v. Uni~ of India, G
(1!1117) 2 S.C.R. 4QI; M.C. Mehta >. Union of India, (19118) 1 S.C.R. 279;
· Mandui Gandhi v. Union of India, 1978 SC. 597; R.C. Cooper v. Union of
Iildia, (1970) SC. 564; Bandhua Mulcti Morcha v. Union of India, (1984) 2
S.C.IL li7; D.S. Nakara v. Uni,,,, of India, (1983] SC~ l3l1; The State of
Mlldnu v. Champakam Dora/r(Jjan, (1959)° S.C.R. 995; flanif v. State of H
604
SUPREME COURT REPORTS
• t993] 1 S.C.R.
A Bihar, [1959) S.C.R. 629; Keshavananda Bharati v. State of Kera/a, 1973
Suppl. 521; U.P.S.C. Board v. Harishankar, A.l.R. 't979 S.C. 6~ and Minerva
Mills v. Union of India, A.l.R. 1980 S.C. 1789, referred to.
B
Munn v. I/linois, 1877 (94) U.S. 113/142 and Bolling v. Sharpe, 98
Lawyers Ed. 884, referred to.
1.3. The fact that right to education occurs in as many as three
Articles in Part IV viz., Articles 41, 45 and 46 shows the importance
1
•
~
attached to it by the founding fathers. Even some of the Articles in Part
4-._ -
c
Ill viz., Articles 29 and 30 speak of education. [653F)
Brown v. Board of Education, 98 Lawyers Ed. 873 and Wisconsin v.
Yoder, 32 Lawyers Ed. 2d. 15, referred to.
1.4. The mere fact that the State is not taking away the right at
present does not mean that right to education is not included within the
D right to life. The content of the right is not determined by perception of
threat. The content of right to life is not to be determined on the basis of .
existence or absence of threat of deprivation. The effect of holding that
right to education is implicit in the right to life Is that the state cannot
deprive the citizen of his right to education except in accordance with the
procedure prescribed by law. Therefore, it would not be correct to say that
E
Mohini Jain was wrong in so far as it declared that the right to education
Dows directly from right to life. [654E-G]
F
Miss Mohini Jain v. State of Kamataka and Ors., [1992) 3 SCC 666,
referred to.
1.5. However, the citizens of this country cannot demand that the State
provide adequate number of medical colleges, engineering colleges and other
educational institutions to satisfy all their educational needs. The right to
education which is implicit in the right to life and personal liberty guaranteed by Article 21 must be construed in the light of the directive principles in
G Part IV of the Constitution. There are several articles in Part IV whicb
expressly speak of right to education. [6548, 655A-B)
Miss Mohini Jain v. State of Kamataka and Ors., [1992) 3 SCC 666,
partly overruled.
H
1.6. Education means knowledge and knowledge ltsel(is power. Th~
"'
~
;,"
•
~
- ..... -~,
UNNI KRISHNAN v. STATE OF AP.
605
preservation or means of knowledge among the lowest ranl<s is of more A
Importance to the public than aU the property of all the rich men in the
conntry. It Is this concern which nnderlies Article 46. [655D-E]
John Adams: Desertation on Canon and Fuedal Law, 1765; Rauschn·
Ing, The Voice of Destruction: Hilter, referred to.
1.7. A lrue democracy is one where education is universal, where
people understand what Is good for them and the nation and know how to
govern themselves. Articles 45, 46 and 41 are designed to achieve the said
goal among others. It is In the light of these articles that the content and
parameters of the right to education have to be determined. [655F]
1.8. Thus, right to education, understood in the context or Articles 4S
and 41, means: (a) every child/citizen or this country has a right to free
education until he completes the age or 14 years, and (b) after a
child/citizen completes 14 years, his right to education is circumscribed by
B
c
the limits of the economic capacity or the State and its developmenL Article D
'5 assures right to free education for all children until they complete the
ale or 14 years. Among the several articles !n Part IV, only Article 45
speaks or a time-limit; no other article does. This is very signllicanL The
State should honour the command or Article 45. It must be made a reality.
A child/citizen has a fundamental right to free education up to the age ofl4
years. [655G, 656A, 658D]
E
G11nnar Myrdal,Asian Drama, refe Ted to.
1.9. This does not, however, mean that this obligation can be per·
formed only through the State schools. It can also be done by permitting,
reeognlsing and aiding voluntary non-governmental organisations, who F
are prepared to impart free education to children. This does not also mean
that unaided private schools cannot continue. They can, indeed they too,
have a role to play. They meet the demand of that segment of population
who may not wish to have their children educated in State-run schools.
They have necessarily to charge fees from the students. [ 658E]
G
1.10. The right to education further means that a citizen has a right
to call upon the Sfate to provide educational facilities to him within the
limits oflts economic capacity and development. This does not mean trans·
ferrlng Article 41 from Part IV to Part III., No State would say that It need
not provide education to Its people even within the limits of Its economic H
606
SUPREME COURT REPORTS
[1993) 1 S.C.R.
A capacity, and development It goes without saying that the limits'of
economic capacity are, ordinarily speaking, matters within the subjective
satisfaction of the State. Therefore, it is not correct to say that reading the
right to education into "'1icle 21, this Court would be enabling each and
every citizen of this country to approach the courts to compel the State to
provide him such education as he chooses. The right to free education is
B available only to children until they complete the age of 14 years. Thereafter, the obligation of the State to provide education is subject to the
limits of its economic capacity and development
[660E-H, 661A)
...._ ~
C
Francis C. Mullin v. Administrator, Union Territory of Delhi, [1981) 2
s.c.R. 516, referred to.
2.1. Private educational institutions are a necessity in the present
day context. It is not possible to do without them llecause the Governments
are not in a position to meet the demand • particularly iu the sector or
D 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 educational institutions • including minority
educational Institutions • too have a role to play. Private educational
Institutions may be aided as well as on-aided. Aid given by the Government
E may be cent per cent or partial. [674D·E]
2.2. So far as aided institutions are concerned, they have to abide by
all the rules and regulations as may be framed by the Government and/or
· recognising/affiliating anthorities in the matter of recruitment of teachers
and staff, their conditions of service, syllabus, standard of teaching and so
F
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
G 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 means a fair
conduct in all respects consistent with the constitutional mandate of Ar·
ticles 14 and 15. All the Governments and other authorities in charge of
granting aid to educational institutions shall expressly provide for such
H conditions (among others), if not already provided, and shall ensure com·
-
UNNI KRISHNAN v. STATE OF AP.
pllance with the same. Again aid may take se\>eral forms. For example, a A
medical college does necessarily require a hospital. The Government may
permit It to avail of the services of a Government hospital for the purpose
or the college free or 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 ~hargeable • and observed. The Governments (Central
and State) and all other authorities granting aid shall impose socb condiB
tions forthwith, if not already Imposed. These conditions sball apply. to
existing as well as proposed private educational institutions.
'---
[674F-H, 675A..C]
2.3. So far as on-aided institutions are concerned, 1hey cannot be C
compelled to char5c the same fee as is charged in Governmental institu·
tions, for the reason that they have to meet the cost of imparting education
from their own resources • and the main source, apart from dona·
tions/cbarities, if any, can only be the fees collected from the students. It is
here that the concepts of 'self-financing educational lnstitutio11s' and cost· D
hased educational institutions come In. However, commercialisation of
education cannot and should not be permitted. The Parliament as •'ell as
State Legislatures have expressed this Intention In unmistakable terms.
Both in the light or our tradition and from the stand-point of interest of
gmeral public, commercialisation is positively harmrul; it is opposed to E
public policy. [675D·E, 6768)
./
3.1. Article 19(1)(g) of the Constitution declares that all citizens of
this country shall have the right to pradice any profession, or to carry on
any occupation, trade or husioess. No opinion Is expressed on the question
whether the right to establish an educational Institution can be said to be F
careying on any 'occupation' within the meaning or Article 19(1)(g). Assuming that it is occupation sucb activity can in no event 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 G
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, and a charitable
activity, but never as trade or business. Education lo its true aspect is
more a mission and a vocation rather than a profession, trade or business, H
I
608
SUPREME COURT REPORTS
[1993) 1 S.C.R.
A however wide may be the denotation of the two latter words. The Parlla·
ment too has manifested its intention repeatedly (by enacting the U.G.C.
-\'.
Act, l.M.C. Act and A.l.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 same
B
intention is expressed by the Legislatures of Andhra Pradesh, Karnataka,
Maharashtra and Tamil Nadu in the Preamble to their respective enactmen ts prohibiting charging of capitation fee. [ 6760-H, 677 A-DI
3.2. Imparting education cannot be treated as a trade or business.
~- •
Education cannot be allowed to be converted into commerce nor can the
c petitioners seek to obtain the said result by relying upon the wider meaning
of'oo:upation'. The content of the expression 'occupation' has to be ascertained keeping in mind the fact that clause (g) employs all the four expres·
sions viz., profession, occupation trade and business. Their fields may
overlap, but each or them does certainly have a content of its own, distinct
from the others. A law, existing or future, ensuring against the conversion
D
of imparting of education into commerce would be a valid measure within
the meaning of clause (6) of Article 19. [677F-G]
State of Bombay v. R.M.D.C., [1957) SCR 874, relied on.
E
The sabar kherda Education Society1Sabar kherda v: State of
Maharashtra, AIR 1968 Bombay 91; Andhra Kesari Education Society v.
.
Government of A.P., AIR 1984 AP. 251 and Bapuji Educational Association
~
v. State, AIR 1986 Kamataka 119,disapproved.
3.3. The activity of establishing an educational institution, cannot be
F
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. [678G]
;..
N. U. C. Employees v. Industrial Tribuna~ A.l.R. 1962 S.C. 1080,
referred to.
G
3.4. Establishing educational institutions can by no stretch of Im·
aglnation be treated as 'practising any profession'. Teaching may be a
profes~ion but establishing an institution, employing teaching and non·
"'I .
teaching stair, procuring the necessary infrastructnre for running a school
or college is not 'practising profession'. It may be anything but not practisH log a profession. It is not necessary to go into the precise meaning and
'
UNNI KRISHNAN v. STATE OF AP.
609
content or the expressions profession, occupation, trade or business in the A
instant case. The main concern is only to establish that the activity or
establishing and/or running au educational institution cannot be a matter
orcommerce. [678H,679A·B]
3.5. Assuming that a person or body of persons bas a right to establish au educational institution, this right is not au absolute one. It is B
subject to such law as may be made by the State in the interest of general
public. However, the right to establish an educational institution does not
carry with it the right to recognition or the right to affiliation. [679C]
4.1. Recognition may be granted either by the Government or any C
other authority or body empowered to accord recognition. Similarly, affiliation may be granted either by the University or any other academic or other
body empowereci to grant affiliation to other educational institutions. In
other words, it is open to a person to establish au educational institution,
admit students, impart education, conduct examination and award certifi·
cates to them. But be, or the educational institution, has no right to insist D
that the certificates or degrees (if they can be called as such) awarded by
such institution should be recognised by the State • muchless 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 recogE
nition or affiliation from the appropriate agency. [ 679F ·GI
4 . .2. 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 F
are not good for obtaining any employment under the State or for admis·
sioo into higher courses of study. No private educational institution can
survive or subsist without recognition and/or affiliation. [680F-G]
4.3. The bodies which grant recognition and/or affiliation are the
authorities of the Stl!te.