By Justice H. Suresh (Retd.)
Capability Deprivation
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Amartya Sen, once described poverty as a matter of “capability deprivation”. Poverty deprives you of your capacity to achieve status and dignity. You want to be a doctor – you want to be an Engineer – you want to be a top executive – But conditions are such that you are deprived of your opportunity to achieve your goal.
Pandit Jawaharlal Nehru in his “tryst with destiny” speech on the eve of independence had said that the tasks ahead were: “the ending of poverty, ignorance and disease, and inequality of opportunity”. After 56 years of independence all these tasks have remained unachieved and unfulfilled. Every institution for human development is so organised that the poor, the marginalised, the disadvantaged are deprived of all opportunities for development. |
Deprivation at the primary level
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In the field of education, this deprivation is manifest at the primary level. The children of the poor have no choice but to attend Municipal Schools where we have an impoverished system of education. The rich get a better and superior system of education. The same disparity prevails as between rural schools and urban schools. Though constitutionally primary education is free and compulsory, it varies as between the rich and the poor. This disparity results in “capability deprivation” as we go for higher education.
In very many cities, a child is sent to K.G. or Nursery Classes, when the child just totters a little, here or there, not that the child is capable of learning anything, but as a sure-step for admission to a recognized school, later on. So, the business of education starts at that level. Again even in the schools, what is taught is of no consequence. As the child reaches the Secondary school, parents are made to think that Tutorial Classes are more important than the schools. These Tutorial Classes are not educational institutions. They are shops which sell education on a commercial basis. They are a class of exploiters mainly serving the rich, the upper classes and the newly emergent affluent class who have amassed wealth by means other than legitimate. It is not the weak or the failed students who attend these Tutorial Classes. On the contrary, the failed students continue to be in the schools hile the rank – holders and best students join the tutorials. Again who takes the credit – it is not the schools, but it is the Tutorial Classes who claim that it is their students who get the ranks. Tutorial Classes are an aberration in any educational system and has to be recognized as an evil. Unfortunately, the Government has made no attempt to eliminate or even to regulate the same. The reason is evident. It helps a particular class, the rich who intend to monopolise major professions such as medicine, engineering, technology, business management, and etc. all for themselves in perpetuity. So the business thrives, the imbalance continues, and the latest judgement in T.M.A. Pai Foundation Case (2002) 8 SCC 481, perpetuates this imbalance. This has deprived and will deprive lakhs of young aspirants for higher education, by |
Art.21. Right to life includes Right to education
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Let us see, what is education? When I say “education”, it includes two concepts: “Right to education” and “Right to impart education”. “Right to run Education Institutions”. When we interpreted “Right to Life” under Article 21 of the Constitution of India, we have expressly stated that “the right to life includes the right to live with human dignity and all that goes with it …………….” (Francis Cralie A.I.R. 1981 SC 746) and more particularly in Mohini Jain (1992) 3 SCC 666, the Supreme Court had said. “The right to education flows directly from the right to life. The right to life under Art. 21 and the dignity of the individual cannot be assured unless it is accompanied by the right to education” |
Right to education as a basic human right
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In fact the right to education is a basic human right.
This is elaborated in Article 13 of the International Covenant on Economic, Social and Cultural Rights:
The States Parties to the present Covenant recognize that, with a view to achieve the full realization of this right; Primary education shall be compulsory and free to all. 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.Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education.” |
Right to education at all levels – is a human right
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What is important, here, is that while primary education shall be compulsory and free for all, secondary and higher education shall be available and accessible to all. The key words are: “available and accessible to all” “appropriate means” and “progressive introduction of free education.” It is wrong to assume that it ceases to be human right beyond the stage of primary education. Right to education should be made available and accessible to all, on the basis of the capacity, at the higher level — in fact, at all levels. In Mohini Jain’s case (Supra) the Supreme Court had rightly said that it extends to provide educational institutions “at all levels for the benefit of the citizens”. While education at the higher levels may not be free the State has an obligation, progressively, to provide for free education.
All human rights are obligations of the State. The State has essentially three obligations: (1) to recognize, (2) to protect, and (3) to fulfill or implement human rights. Under Article 2 of ICESCR: Art. 2 : ICESCR:
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Obligation of the State
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Thus the State cannot abdicate its obligation to provide for higher education. On the contrary, it has to take steps progressively by all appropriate means. The Government must demonstrate what steps it has taken, progressively – not regressively —- year to year. We accepted these Covenants in 1976. From 1976 to 2003, what steps the Government has taken progressively to provide for larger access to education. If only Courts had insisted upon the State to demonstrate, year to year, what steps it had taken to the maximum of its available resources —- many of our citizens would have achieved a higher standard of living. |
Art. 38(2) and Art. 41 of the Constitution
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And what does our Constitution say? Article 38(2) says ………. “The State shall ………….. strive to minimize inequalities of income, and endeavour to eliminate inequalities in status, facilities and opportunities.” Again Article 41: “The State shall within the limits of its economic capacity make provision for work, education ………” The key words are “strive” ………… and “endeavour”. It should be a continuous strife, progressively from year to year, to eliminate inequalities of income and opportunities. The limits of economic capacity should be an expanding venture and cannot be allowed to shrink from year to year, resulting in self-abnegation of its constitutional obligation.
But instead of progressively increasing spending on education, the Govt. is allocating less and less for education. In 1980-81, the Govt. Plan expenditure on education was 4% of the GNP. In 2001-02 it has been reduced to 2%. According to the annual plan expenditure on education (1992-97) was Rs.3920 Crores, whereas the annual loss of all State electricity Boards (1997-98) was Rs.10,864/- Crores which is 2.72 times the average annual expenditure on education. In other words no one questioned the Govt., how could it afford to spend less and less on education which was contrary to their obligation both under the constitution and under the International Humanitarian Law. Unfortunately, the Supreme Court never took into account the basic human right – the right of access to education in any of judgement. |
Right to run educational institutions is not a human right
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This is about Right to education. —- What about Right to impart education? What is it —- is it a Right? Or is it a liberty? State has an obligation to provide for access and availability of education for all. But if a private individual wants to take over or share that obligation, the State should not object to that provided that private individual is willing to comply with all the requirements of law and the standards. So, that private individual has a liberty, no compulsion, no obligation to start an educational institution. When we talk of fundamental right or human right as against liberty, there is a fundamental difference between the two. Human rights could be generally defined as those rights which are inherent in our nature and without which we cannot live as human beings. That is why UDHR proclaims these rights” as a common standard of achievement for all peoples and nations”. Some of these human rights, we have incorporated in our Chapter on Fundamental Rights. But liberty to do a particular act or not to do a particular act may not have anything to do with the concept of human dignity or of any universally recognized standard.
In other words Right to establish an educational institution is not a human right. But the State has a fundamental duty to establish education institutions so that the citizen’s right to education is made accessible and easily available to all. In Mohini Jain’s case the Supreme Court rightly said as follows: |
Private educational institutions discharge obligations of the State
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“Teaching shops”
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Taking note of the mush-room growth of medical colleges, which thrive on capitation fees, the Court said that such institutions are nothing but teaching shops. The students who would not otherwise get admission in recognized medical colleges, would get a back-door entry into medical training “solely by the ability to pay one’s way through”.
The Court had further said that “Restricting admission …….. belonging to the richer section of society and denying the same to the poor meritorious, is wholly arbitrary, against the constitutional scheme and as such cannot be legally permitted” (Para 20) This is violative of Article 14 of the Constitution. |
Private Medical Colleges are the Agents of the State
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There are three important findings in Mohini Jain: (1) Every citizen has a Right to education as a part of Article 21 (Or as a human right) at all levels (ii) The State is under an obligation to establish educational institutions, (iii) When the State Government permits a Private Medical College to be set up and recognizes its curriculum the said College is performing a function “which under the Constitution has been assigned to the State Government” (Page 28) Since all these State recognized private colleges are agents of the State, they cannot charge any fee more than the tuition fee charged in the Government College. All such fees charged more than the Government fixed tuition fee, are nothing but the capitation fee, “whatever name one may give to this extraction of money” (Para 28). |
Education -not a commodity for sale
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The Court rightly did not go into the question as to how one should run one’s educational institution — its economic viability, its budgeting and expenses, etc. The Court is just not qualified to lay down any scheme for running an educational institution. The Court took note of the fact that to “establish and administer educational institutions is considered a religious and charitable object. Education in India has never been a commodity for sale” (Para 18). The Court was concerned with the State action or inaction and whether it would defeat the constitutional mandate. The Court came to the conclusion that the “State action in permitting capitation fee to be charged by State – recognized educational institutions, is wholly arbitrary and as such violative of Article 14 of the Constitution of India (Para 18). |
Vilification campaign
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However, as against this perfectly valid judgement, a vilification campaign both by the legal fraternity and the vested interest group was carried on to say that the Supreme Court ruling was against private commercial initiatives and the State has no resources and manpower to provide universal and all round education to all at all stages. The Editor of Supreme Court Cases Reporter wrote a 6 page editorial note criticizing the judgement, without even understanding, “Right to Education” is a recognized human right under the UDHR and ICESCR, and how the State is required to discharge its obligations, both under the Constitution and as enunciated under Art. 2 of ICESCR and even forgetting Municipal Council, Ratlam V/s. Vardichand (1980). It is even suggested that for preventing extortion, the commercial enterprise should be allowed to grow “so that it turns from a seller’s market to a buyer’s market” —- as if the private professional colleges are sellers and the students are buyers. Again has the extortion become less, now? Fortunately even the latest judgement has not fully endorsed this. (How many such Editorial Notes have been written when several judgements which were apparently wrong and contrary to earlier precedents were delivered?) |
Unnikrishnan case
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The result is Unnikrishnan case (1993)1 SCC 645. All confusion started with this judgement. As Rajiv Dhavan says, from “half – baked socialism” to the present T.M.A. Pai Foundation case, “half-baked capitalism.” It quotes Bangalore Water Supply case (1978) to note that an educational institution could be considered as an industry. Then they classify educational institutions as (1) those requiring recognition by the State and (ii) those who do not require recognition. Then it is stated where the State’s recognition is required it can only be on the State permitting pursuant to a policy decision of the State or on fulfillment of certain conditions. In that case, there is no question of any fundamental right to establish an educational institution (Para 67a). Referring to an earlier case (S. Azeez Basha vs. Union of India, A.I.R. 1968 SC 662) where it was impliedly held that there was no fundamental right to establish a University, the Court observed, “a fortiori, a fundamental right to establish an educational is not available”. |
Education Institution as “Charity”
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Considering educational institutions as “Charity” as understood under the English Law, it considers them to be “trusts” for the advancement of education. The beneficiaries are the students, and there can be no question of trusts being funded by the beneficiaries. In St. Stephen’s College v/s. University of Delhi (1992) 1 SCC 558, at 609-610, it is said :
“The educational institutions are not business houses. They do not generate wealth. They cannot survive without public funds or private aid”. There has to be a restraint on collection of student’s fees. Public funds could be the State aid, and private aid could be the self-generated wealth or donations from the philanthropic public. |
Educational Institutions cannot be commercialized
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The Court then rambles into concepts of “self-financing educational institutions” and “cost-based educational institutions” which could not be the concern of the Court. How does one determine “the cost of education”, and how and by whom it can be regulated? The Court itself answers “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” (Para 196) Can it be compared to the activities of builders of apartments who collect money from the intending purchasers first and then build? Negativing all such ideas, the Court observes : “But one thing is clear; commercialization of education cannot and should not be permitted. ……………Commercialization 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 (Para. 196).” |
Arguments rejected
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The Court expressly rejected the following arguments; (a). Every citizen has a fundamental right to establish an educational institution as a part of the right under Art. 19(1)(g) of the Constitution (b). The “market forces” must be allowed a free play; (e) Educational institution is a business or industry; (d) The Government should have no say in the matter of fees, because private educational institutions could be considered as institution providing cost-based education. After negating all those arguments the Court observed, more emphatically: |
Education is a “mission”
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Again at para 198:
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Running educational institution is “supplemental” to the activity carried on by the State
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The Court further said that running a private educational institution “is not an independent activity but one closely allied to and supplemental to the activity of the State” (Para. 204). Again, more categorically:
The key words are: “not an independent activity”, “supplemental to the principal activity carried on by the State,” and “fairness and equal treatment in the matter of admission”. |
Scheme of dividing the students into payment and free students
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What is unfortunate in Unnikrishnaan’s case is, that the Court after all such categorical observations as quoted above, was induced to full into a pitfall of going into the question of costs of running a private professional college, which could never have been the function of any Court. The Court came out with a scheme which is well known now to all of us as one dividing the students between “payment students” and “free students” a scheme which was bound to fail sooner or later. The Court evolved the scheme —-“ with the help of the Counsel appearing before us” —— as if the Counsel were more knowledgeable than the Judge in the matter of managing professional colleges! It was unprincipled on any social theory. In practice it operated exactly in the opposite way than originally intended. If did not ensure free seats for the poor and the economically weaker section. The rich could get both the free seats and the payment seats. |
Establishing Educational Institution, held to be “Occupation” for the first time
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Then comes T.M.A. Pai Foundation Case (Supra): In this case the Judges agreed that establishing an educational institution is not any trade, profession or business, but they held that it is an “occupation” within the meaning of Art. 19(1)(g) of the Constitution. They said that it is “occupation” i.e. an activity of a person undertaken as a means of livelihood or mission of life. They rely on Sodhan Singh’s case (1989)4 S.C.C. 155 where it has been said that occupation “is any activity carried on by any citizen to earn his livelihood”. So we are to imagine that a large number of mushroom educa-tional institutions sprang up “as a means of livelihood.” So in Maharashtra, the following politicians who run various Professional Colleges should be considered as “earning their livelihood” by carrying on this “occupation”.
In Maharashtra there are 16 private medical colleges and 137 private Engineering Colleges. In Karnataka there are 15 private Medical Colleges, 13 private dental Colleges and 51 Engineering Colleges – all for imparting education, but the real beneficiaries are all those who have been conferred a new-found “right” to run them as “occupation” earning their livelihood.! |
Scheme of Unnikrishnan -unreasonable
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Having brought this new found “right” under Art. 19(1)(g), the Supreme Court said that the scheme as laid down in Unnikrishnan, amounts to unreasonable restriction. They said that it has the effect of “nationalizing education”. In what sense? curriculum is not changed; the course is the same; the examinations are not touched; only the fee structure was sought to be altered. And that becomes “nationalization”. The Supreme Court contracts this with what it expects it to be. (Para 49.)
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“Privatisation”
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Look at the terms: “privatisation”. “logic of todays’ economics” – all applicable to business! Then they say “ The fixing of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions.” (Para 54).
And then more categorically: “ …….. One also cannot lose sight of the fact that we live in a competitive world today, where professional education is in demand. We have been given to understand that a large number of professional and other institutions have been started by private parties who do not seek any governmental aid. In a sense, a prospective student has various options open to him / her where, therefore, normally economic forces have a role to play. The decision on the fee to be charged must necessarily be left to the private educational institution that does not seek or is not dependent upon any funds from the Government.” (Para 56). |
No Profit, but reasonable surplus permissible
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Of course, they repeat that there can be no capitation fee and profiteering (without realizing what they had said earlier). Again it is said : “……….. The occupation of education is in a sense, regarded as charitable……….” And “……… To put it differently, in the establishment of an educational institution, the object should not be to make a profit, inasmuch as education is essentially charitable in nature. There can, however, be a reasonable revenue surplus, which may be generated by the educational institution for the purpose of development of education and expansion of the institution”. (Para 51)
And more categorically: “ ………. Of course now by virtue of this judgement the fee structure, fixed under any regulation or enactment, will have to be reworked so as to enable educational institutions not only to break even but also to generate some surplus for future development / expansion and to provide for free seats.” (Para 393). |
Sale of education
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So education begins as a “charity”, but it soon becomes an “occupation”, no profiteering, but a “reasonable surplus”. Is it not sale of education — cost plus reasonable surplus?. Of course for “future development and expansion” — whose development, whose expansion! And profit is for what – for future development? |
Justice V.R. Krishna Iyer’s scathing criticism
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So from “nationalization to “commercialization” Justice V.R. Krishna Iyer, in a scathing article (The Hindu dated 17th December, 2002) said :
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Professional education -becomes the monopoly of the rich
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Islamic Academy case ad-hoc approach
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Yet poor and the needy will find it difficult to get admissions in many Colleges. That is how, the Govt. of Maharashtra, has announced to certain category of students from reserved class, grant of scholarships and subsidies amounting to Rs.17 Crores. Still, there may be various other students who will find professional college beyond their means, even though they may have merit. Unfortunately, in all these cases, the right of access to education as a fundamental right – as a human right – is not considered at all, as if, such a right does not exist. It is wrong to assume that the fundamental right to education is upto the age of fourteen only (as stated in Unnikrishnan ) but it prevails at all level ( as correctly stated in Mohini Jain ). The obligation is essentially of the State. Upto the age of fourteen, it is free and compulsory, but thereafter, access to education should be available for all – for a fee equal and affordable to all. If private parties want to run educational institutions, it can only be as a supplemental agency for and on behalf of the State (again as correctly stated in Mohini Jain ). |
Equal fee and affordable to al
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In all professional colleges – private or public – the fee has to be equal and affordable to all. It can never be based on the basis of the costs involved in running each institution. If fees are fixed on the basis of costs, or costs plus any surplus, it amounts to sale of education which has been universally condemned. All professional college should have a minimum infra-structure as may be prescribed by their respective pro-fessional Councils or the State. However, if anyone chooses to provide any extra infra-structures, he cannot charge the students for the same. If such excess fee or charge is allowed, it will sooner or later divide the students as between the rich, and the not so-rich, the education of the ‘haves’ and the education of the ‘have not’—which is ante-thetical to any concept of social and economic justice. |
Govt to reallocate public spending on education
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Very often, it is said that the Government has no money to spend on education. A Policy Framework for Reforms in education (with Mukesh Ambani as Convenor and Kumar Mangalam Birla as member) of the Government of India recommends privatization of education. An executive summary of the Policy (April, 2000) inter- alia, states:
Whatever it be, it is an obligation of the State – and the State and its agencies cannot be allowed to trade on education. Poor finance is always a poor alibi when the State has an obligation to recognize, to protect and implement a human right. If the Govt. of Maharashtra could pay Rs.17 Crores by way of Scholarship, it could as well have taken the management of many professional colleges. If private parties want to share the responsibility with the State, it cannot be as trade, business or profession, much less as an “Occupation”. |