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.

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
making education beyond their means.

In fact the right to education is a basic human right.
Article 26 of Universal Declaration of Human Rights says :-

“Art. 26:
1. Every one has the right to education. Education shall be free in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and Professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.”

This is elaborated in Article 13 of the International Covenant on Economic, Social and Cultural Rights:

Art. 13: ICESCR:

“1. The States Parties to the present Covenant
recognize the right of every one to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity................ and shall strengthen respect for human rights ................ and fundamental freedoms.

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.”

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:

“1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”

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.

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:

“17. we hold that every citizen has a “right to education” under the Constitution. The State is 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-recognized educational institutions.

When the State Government grants recognition to the private educational institutions it creates an agency to fulfill its obligation under the Constitution. The students are given admission to the educational institutions -whether state-owned or state-recognized - in recognition of their “right to education” under the Constitution. Charging capitation fee in consideration of admission to educational institutions, is a patent denial of a citizen’s right to education under the Constitution.”

In an earlier passage, the Court said:

“14. The “right to education”, therefore, is concomitant to the fundamental rights enshrined under Part III of the Constitution. The State is under a constitutional mandate to provide educational institutions at all levels for the benefit of the citizens. The educational institutions must function to the best advantage of the citizens. Opportunity to acquire education cannot be confined to the richer section of the society. Increasing demand for medical education has led to the opening of large number of medical colleges by private persons, groups and trusts with the permission and recognition of State Governments. The Karnataka State has permitted the opening the several new medical colleges under various private bodies and organizations. These institutions are charging capitation fee as a consideration for admission. Capitation fee is nothing but a price for selling education. The concept of ‘teaching shops’ is contrary to the constitutional scheme and is wholly abhorrent to the Indian culture and heritage.”

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.

“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.

“While we do not wish 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 time immemorial. It has been treated as a religious duty. It has been treated as a charitable activity. But never as trade or business. We agree with Gajendragadkar, J. that “education in its true aspect is more a mission and a vocation rather than a profession or trade or business, however wide may be the denotation of the two latter words.....” (See University of Delhi) (1964). The Parliament too has manifested its intention repeatedly (by enacting the U.G.C. Act, I.M.C. Act and A.I.C.T.E. Act) that commercialization 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.” (Para 197).

Again at para 198:

“We are, therefore, of the opinion, adopting the line of reasoning in State of Bombay v. R.M.D. Chamarbaugwala (1957 SCR 874 : AIR 1957 SC 699) that imparting education cannot be treated as a trade or business. Education cannot be allowed to be converted into commerce nor can the petitioners seek to obtain the said result by relying upon the wider meaning of “occupation”. The content of the expression “occupation” has to be ascertained keeping in mind the fact that clause (g) employs all the four expressions viz., profession, occupation, trade and business. Their fields may overlap, but each of them does certainly have a content of its own, distinct from the others. Be that as it may one thing is clear - imparting of education is not and cannot be allowed to become commerce.”

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:

“It is not an independent activity. It is an activity supplemental to the principal activity carried on by the State. No private educational institution can survive or subsist without recognition and/or affiliation. The bodies which grant recognition and/or affiliation are the authorities of the State. In such a situation, it is obligatory - in the interest of general public-upon the authority granting recognition or affiliation to insist upon such conditions as are appropriate to ensure not only education of requisite standard but also fairness and equal treatment in the matter of admission of students. Since the recognizing/affiliating authority is the State, it is under an obligation to impose such conditions as part of its duty enjoined upon it by Article 14 of the Constitution. It cannot allow itself or its power and privilege to be used unfairly. The incidents attaching to the main activity attach to supplemental activity as well.”

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”.

Datta Meghe (NCP) – 5 Professional Colleges.
Rohidas Patil (Congress) – 2 Professional Colleges.
Kamalkishore Kadam (NCP) – 2 Professional Colleges.
Patangrao Kadam (Congress) – 2 Professional Colleges.
Satish Chaturvedi (Congress) – 2 Professional Colleges.
Dr. Padamsinh Patil (NCP) – 2 Professional Colleges.
Ranjit Deshmukh (Congress) – 1 Professional Colleges.
Balasaheb Vikhepatil (Shiv-sena) – 1 Professional Colleges.
Narayan Rane (Shiv-sena) – 1 Professional Colleges.
Gopinath Munde (BJP) – 1 Professional Colleges.
Vilasrao Deshmukh (Congress) – 1 Professional Colleges.
Ramrao Adhik (Congress) – 1 Professional Colleges.
Ravindra Mane (Shiv-sena) – 1 Professional Colleges.
Shankarrao Kolhe (NCP) – 1 Professional Colleges.
Shivajirao Patil Nilangekar (Congress) – 1 Professional Colleges.

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.!

“The idea of an academic degree as a “private good” that benefits the individual rather than a “public good” for society is now widely accepted. The logic of today’s economics and an ideology of privatization have contributed to the resurgence of private higher education, and the establishing of private institutions where none or very few existed before.”

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).

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).

“My hunch is that while Justice Jeevan Reddy in Unnikrishnan’s case castigates commercialization of education, Justice Kirpal in the T.M.A. Pai case, reverses the process and advocates the cause of the private sector. Profiteering, no. Profit-making, yes. “This partition do their bounds divide.”

“A reasonable surplus for future expansion is, in the apex court diction, permissible profit but not profiteering. So students are to subsidise the educational charity out of their poverty. Founders, with philanthropic motivation and eleemosynary reputation must rely on social sources, donative channels and business barons for handsome grants, not fleece the poor parents who borrow for their child’s future nor squeeze young students with educational hunger and meritorious talent. The vast poor have no claim to judicial compassion. That is privatization and market methodology exciting for the affluent but the brilliant indigents are priced out of the educational bazaar!

Alas, unaided minority schools from the L.K.G., U.K.G. and the very first standard have become a ubiquitous business with heavy capitation fees under various dubious disguises. Merit is measured by money and so public morality requires some measure of control. But the Court is inclined to overlook the rampant rage regarding the fee levy and discriminatory dimensions of ‘free to loot’ unaided bodies, Regulation becomes justified not because state grant is given but because public education is a matter of serious social concern, that too, in a socialistic democratic republic. The term capitation fee is more a clever formality because these extra-levies have different terminology to outwit judicial vocabulary………...” “………. How naïve to uphold “reasonable surplus to meet cost of expansion and augmentation of facility”. The fluid phraseology facilitates exploitation without compunction as if this generation of students must fund future development about which there is no plan, no record, no restraint nor no definite direction, no verification of viability.

There is no gainsaying the fact that social justice and equal opportunity for educational excellence at all levels have gone by default. Of course, globalization, liberalization, privatization and marketisation have captured the Court’s notice and the Preamble to the Constitution is de facto judicially jettisoned.” “…..The Court has the last word but the common people should not have the least word. The classroom, it has been said, shapes the destiny of the nation and education is too serious a matter to be left only to the robed brethren. Our crimson Constitution has a value vision to blink at which is to miss its social mission.”

The professional education becomes the monopoly of the rich. Many professional colleges in Maharashtra announced the annual fees within a range of Rs.3.15 lakhs to Rs.3.90 lakhs. This became worse than the capitation fees. Large number of students could not think of getting admissions in these colleges. In the meanwhile, the Bombay High Court came with an adhoc formula whereby students were asked to pay 60% of the admission fees, first, and the balance to be paid subject to the decision of a committee headed by a Retired, High Court Judge, for fixation of the fees.

In the meanwhile the Supreme Court in the Islamic Academy case (2003) tried to introduce a system of checks and balances, to regulate the hyper commercialization of professional education. It has directed the State Governments to set up a committee headed by a retired High Court Judge and including a Chartered Accountant and representatives of the Central and State Agencies in the field to assess the colleges and prescribe a fee structure commensurate with the infra-structure and academic facilities provided by them. For admissions, the apex court has fixed a 50:50 seat sharing formula for the government and the management quotas, but filled through a common entrance test and selection process. While allowing the States to fix a quota for the private minority institutions, the Court has recognized the ‘preferential right’ of these institutions to accord priority in admission to students from their communities. There are two other clear directions from the Bench: admissions must be based on merit and through a common entrance test; and provision must be made for quotas for the poor and the backward.

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 ).

“Funding the huge expenditure demand should be by both an increase in quantum of public spending as well as increase in efficiency of public spending on education. Government has to reallocate public spending to education from other publicly funded activities such as defence and inefficient public sector enterprises. Private financing should be encouraged either to fund private institutions or to supplement the income of publicly funded institutions.

There are basically three mutually reinforcing methods that could overcome some of the problems in financing education. The first method is to recover the public cost of higher education and reallocate government spending on education towards the level with the highest social returns, i.e. in primary education. The second method is to develop a credit market for education, together with selective scholarships, especially in higher education. The third method is to decentralize the management of public education and encourage the expansion of private and communitysupported schools.

India currently faces two major challenges in her path to progress – income poverty and information poverty. Income poverty arises due to poor skill sets, low access to material and knowledge resources, exploitation by intermediaries and environmental degradation. There are about 400 million people in India facing income poverty. Poverty and illiteracy go hand in hand. India has to visualize education, apart from economic growth and development, as a means of liberating the poor from deprivation and poverty.”

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”.