Education is at the base of all types of human development and progress.
Education is said to be the sharpest weapon and strongest shield against all
human problems. Human life becomes meaningless in the absence of education. It
is through education, that we acquire knowledge and skills which enable us to
lead a fruitful life. India is a democratic country and justice, equality and
liberty are the guiding principles of our Constitution.
You will agree with the
opinion that to deprive someone of the right of obtaining education is a gross
injustice, and hence, universalization of at least primary education is of prime
importance in a democratic and secular country like ours.
Right to set up educational institutions is a fundamental right:
With regard to the establishment of educational institutions, three Articles of
the Constitution come into play. Article 19(1) (g) gives the right to all the
citizens to practice any professions or to carry on any occupation, trade or
business; this right is subject to restrictions that may be placed under Article
(19) (6). Article 19(1) (g) employs four expressions, viz., profession,
occupation, trade and business.
Their fields may overlap, but each of them does
have a content of its own. Education is per se regarded as an activity that is
charitable in nature. Education has sofar not been regarded as a trade or
business where profit is the motive. Even if there is any doubt about whether
education is a profession or not, it does appear the education will fall within
the meaning of the expression occupation
In Unni Krishnan vs. State of A.P.
(1993) the SC, while referring to education,
observed that education may perhaps fall under the category of “occupation”
provided no recognition is sought from the State or affiliation from the
University is asked that it is a fundamental right. The establishment and
running of an educational institution where a large number of persons are
employed as teachers or administrative staff, and an activity is carried on that
results in the imparting of knowledge to the students, must necessarily be
regarded as an occupation, even if there is no element of profit generation.
The right to establish and maintain educational institutions may also be sourced
to Art. 26(a) which grants, in positive terms, the right to every religions,
denomination or any section thereof to establish and maintain institutions for
religious and charitable purposes, subject to public order, morality and health.
Education is a recognized head of charity.
In T.M.A Pai Foundation v State of Karnataka
(2003) it was held that the phrase
private educational institutions
would include not only those educational
institutions set up by secular persons or bodies, but also educational
institutions set up by religious denominations; the word 'private'
is used in
contradiction to Government Institutions.
Extent of Government control over private educational institutions:
Regulations to ensure that merit is not disregarded, capitation fee is not
charged and institutions not run with profit motive may be made by government.
But right to reject and otherwise qualified student should not be denied.
The right to establish an educational institution can be regulated but such
regulatory measures, must in general, be to ensure the maintenance of proper
academic standards, atmosphere and infrastructure (including qualified staff)
and the prevention of maladministration by those in change of management. 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.
Autonomy of unaided private educational institutions:
The private educational institution have a personality of their own, and in
order to maintain their atmosphere and traditions, it is but necessary that they
must have the right to choose and select the students who can be admitted to
their course of studies.
In the case of an unaided private school maximum autonomy has to be left with
the management with regard to administration, including the right of
appointment, disciplinary powers, admission of students and the fees to be
Regarding unaided private professional colleges regulation can be required to
provide for merit-based admission. Sufficient discretion however should be left
with management in admitting students for example, by fixing management quota
machinery to ensure that capitation fee is not charged and there is no
profiteering by institution.
Fees and capitation fees:
Fees are the life blood of any educational institution. Facilities offered to
students, teachers, even contract staff is dependent on the income of a private
institution solely by way of fees paid by students at the time of admission and
at various junctures through an academic term. Capitation fee is essentially a
peculiar concept that has arisen in India due to the commercialization of
education. Capitation fee may be defined as a charge of lump sum in lieu of
merit, for admission to an educational institution.
It is a charge of capital
nature that is not in return for the cost of education actually imparted. It
includes any amount by whatever name called, paid or collected directly or
indirectly in excess of the prescribed fees. The fine difference between
' and 'capitation fee'
continues to be a point of contention
today for the student community and the administrative authorities even though
Indian courts and statutory provisions of various education related laws have
clearly and unambiguously spelt out the offence of collecting capitation fees
and punishment for the same.
In recent years, a very serious situation has arisen because of mushroom growth
of private educational institutions, specially engineering, medical and
management colleges in certain states, which charge huge sums of donations as
capitation fees for admission to various courses of study offered by them. To
tackle this evil which have grave deleterious consequences, the parliament
through University Grants Commission (Amendment) Act 1997, inserted a new
section 12-A, in the UGC Act providing for regulation of fees and prohibition
of donations in certain cases.
The whole problems pertaining to capitation fee was considered by the apex court
in the case of Mohini Jain vs. State of Karnataka (1989). In this case the
petitioner had challenged the validity of notification issued by the government
under the Karnataka Educational Institutions (prohibition of Capitation Fee) Act
1984, which was passed to regulate tuition fee to be charged by the private
Medical Colleges in the state. Under the notification the tuition fee to be
charged from students Karnataka was Rs.60, 000 per annum.
The petitioner was
denied admission on the ground that she was unable to pay the exorbitant tuition
fee of Rs.60,000 p.a. The court held that the right to education at all level is
a fundamental right of citizen under Article 21 of the constitution and charging
capitation fee for admission to educational institutions is illegal and amounted
to denial of citizen's right to education and also violative of Article 14,
being arbitrary unfair and unjust.
In Unni Krishnan vs. State of A.P.
(1993) the SC held that it is the
lookout of the state including the legislature to prevent commercialization of education
and that prohibition of collecting capitation fee has been envisaged by the Act
for the purpose of preventing such malady.
Majority of the unaided minority
institutions cannot be compelled to charge the same fees as is charged in the
government institutions for the simple reason that they have to meet the cost of
imparting education from their own resources and the main source can only be the
fees collected from the students. Nonetheless, learned Judge deprecated any kind
of commercialization of education, and pointed to the reason of collecting
exorbitant amount in the name of capitation fee or even other fees.
In T.M.A Pai Foundation v State of Karnataka
(2003), on the matter fixing the
fees, an Eleven Member Bench of the Supreme Court observed that one cannot lose
sight of the fact that providing good amenities to the students in the form of
competent teaching faculty and other infrastructure costs money. It has,
therefore, to be left to the institution, if it chooses not to seek any aid from
the government, to determine the scale of fee that it can charge from the
In Islamic Academy of Education v. State of Karnataka
(2003), the Supreme Court
held that there could be no rigid fee structure fixed by the government. The
Supreme Court in this case considered the issue whether educational
institutions are entitled to fix their own fee structure and came up with
specific answers and recommendations on charge of fee and fee structure in an
Similarly, in Modern School v. Union of India
(2004), the Supreme Court laid
down guidelines to prevent profiteering by private unaided schools in Delhi and
blatant commercialisation of education. Huge sums of money sometimes even to the
tune of Rs. 8000 per month have been collected as tuition fee and other annual
fees by schools towards 'development' which often meant constructing more
buildings, financing other schools run by the management and even creating and
maintaining swimming pools.
The SC order covers the following points:
- It empowers government to check private schools in Delhi from charging
- Directs schools to file accounts to Director, Education. The Director is
authorized to regulate the fees and other charges to prevent the
commercialization of education;
- Private (unaided) schools would have to fulfill their statutory
obligation to admit 25% of the students from the economically lower strata
to comply with one of the conditions on which they had been allotted land at concessional
It is submitted that in past fifteen years there has been radical changes from
rigid to liberal approach of the court on the matter of capitation fee. The
journey from Mohini Jain to T.MA. Pai foundation
reflects the judicial
liberalization, but it is important to note that the capitation fee enable the
rich to take admission whereas the poor has to withdraw due to financial
A poor student with better merit cannot get admission because he has
no money to apply whereas the rich can purchase the admission. There is,
therefore, no escape from the conclusion that charging of capitation fee in
consideration of admissions to educational institution is utter violation of our
The principle that there should not be capitation fee or profiteering is
correct. Profiteering does not include reasonable surplus to meet the cost of
expansion and augmentation of facilities. The judgment of the court will go a
long way in preventing the commercialization of professional education. It makes
amply clear that merit alone should be the basis of access to higher education.
Though the private college can charge higher fee than Government College but
this cannot be done on the cost of merit. As the state does not have enough
money to provide facilities for professional education private initiative is
bound to play an important role. In the circumstance the court has done to
regulate the private activities in order to ensure equality of opportunity to