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BEFORE THE HON’BLE SUPREME COURT OF INDIA

WRIT JURISDICTION

W.P NO. 1993(1) SCC 645 OF 1993

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

IN THE MATTER OF

Unnikrishnan.................. Petitioner

Versus

State of Andhra Pradesh and others

Name: Shoumya Singh

Class : IV Year B.A.LLB

Contact No. 09373507830

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STATEMENT OF JURISDICTION

The Petitioner has approached the Hon’ble Supreme Court under Article 32 of the Constitution of India.
The Petitioner humbly submits to the jurisdiction of this Hon’ble Court. This petition is highly
maintainable before Hon’ble Supreme Court, as there is violation of basic fundamental right given by
our constitution, it influences on children’s rights to education.

The present memorial sets forth the facts, contentions and arguments in the
present case.

MEMORIAL ON BEHALF OF PETITIONER

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STATEMENT OF FACTS

1. In these writ petitions, filed by private educational institutions engaged in or proposing to

engage in imparting medical and engineering education the correctness of the decision
rendered by a Division Bench comprising Kuldip Singh and R.M. Sahai JJ. in Miss Mohini Jain V.
State of Karnataka and Ors., is called in question.
2. A citizen of Meerut had appealed in the case of Mohini Jain v. the State of Karnataka, Admission
to Sri Siddhartha Medical College, Karnataka, for the course of MBBS, against the quota of
government seats for the February / March 1991 session. Nonetheless, the management told
her that only after paying the tuition fee could she be admitted.
3. Mohini couldn't pay such an expensive amount and owe to their poor economic situation. In
addition, Mohini has also alleged that the college had even asked her for the capitation fee.
4. Later on, college denied Mohini’s plea, following this, Mohini lodge a writ petition under Art.32
of the Indian Constitution challenging the legality of notification of the Karnataka Government
allowing private medical colleges in the State of Karnataka to charge high tuition fees to
Students other than those accepted to the "Seats of Government." She was also asking for the
Explanation of the "Right to Free Education" to the people of India and its limits.
5. The Court held that the students should not be paid the capitation fee. Admitted against the
government seat requirement. The Court also claimed, however, that under Article 21 of the
Constitution, people have a constitutional right to education, though it remained silent on its
limitation. The issue that was not severely dealt with in Mohini Jain's case surrounding the right
to education has now become inevitable.
6. Again, the right is the Right to Education was being scrutinized. This writ petition was eventually
made by numerous petitions, The education department institutions argued against the State
for restricting the college fee and even argued with the court to include a detailed definition of
the right to education.

MEMORIAL ON BEHALF OF PETITIONER

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STATEMENT OF ISSUES

1. Whether the Constitution of India guarantees a fundamental right to education to its citizens?
2. Whether a citizen of India has the fundamental right to establish and run an educational
institution under Article 19(1)(g) or any other provision in the Constitution?
3. Whether the grant of permission to establish and the grant of affiliation by a University imposes
an obligation upon an educational institution to act fairly in the matter of admission of the
students?

MEMORIAL ON BEHALF OF PETITIONER

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SUMMARY OF ARGUMENTS

1. Whether the Constitution of India guarantees a fundamental right to education to its citizens?

It is humbly submitted that the right to education is not expressly mentioned as a fundamental right, it is
implicit and flows from the right to life guaranteed under Art.21.Though the Right to education flow
from the right to life and personal liberty under article 21 but these rights are not absolute. Its content
and parameters have to be determined in the light of Articles 45 and 41. right to education is implicit in
and flows from the right to life guaranteed by Article 21. That the right to education has been treated as
one of transcendental importance in the life of an individual.

2. Whether a citizen of India has the fundamental right to establish and run an educational
institution under Article 19(1)(g) or any other provision in the Constitution?

It is humbly submitted that under the Article 19(1)(g) of the Constitution all citizens of this country shall
have the right “to practice any profession, or to carry on any occupation, trade or business with the
reasonable restriction. The line of reasoning stated in State of Bombay v. R.M.D.C, that imparting
education cannot be treated as a trade or business. Education cannot be allowed to be converted into
commerce.

3. Whether the grant of permission to establish and the grant of affiliation by a University imposes
an obligation upon an educational institution to act fairly in the matter of admission of the
students?

It is humbly submitted that by the grant of permission to establish and the grant of affiliation by a
University imposes an obligation upon an educational institution to act fairly by eliminating discretion in
the management altogether in the matter of admission. It is the discretion in the matter of admission
that is at the root of the several ills complained of. It is the discretion that has mainly led to the
commercialization of education.
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MEMORIAL ON BEHALF OF PETITIONER

ARGUMENT ADVANCED

1. Whether the Constitution of India guarantees a fundamental right to education to its citizens?

While dealing with the first issue court relied on some judgment which is given by this court in The State
of Madras v. Champakam Dorairajan[ii], Hanif v. State of Bihar[iii], and In Minerva Mills v. Union of
India[iv]. Court held It is thus well established by the decisions of this Court that the provisions of Parts
III and IV are supplementary and complementary to each other and that Fundamental Rights are but a
means to achieve the goal indicated in Part IV.

The Court held though the right to education is not expressly mentioned as a fundamental right, it is
implicit and flows from the right to life guaranteed under Art.21.Though the Right to education flow
from the right to life and personal liberty under article 21 but these rights are not absolute. Its content
and parameters have to be determined in the light of Articles 45 and 41.

In Bandhua Mukti Morcha this Court held that the right to life guaranteed by Article 21 does take in
“educational facilities”. (The relevant portion has been quoted hereinbefore.) Having regard to the
fundamental significance of education to the life of an individual and the nation, and adopting the
reasoning and logic adopted in the earlier decisions of this Court referred to hereinbefore, we hold,
agreeing with the statement in Bandhua Mukti Morcha that right to education is implicit in and flows
from the right to life guaranteed by Article 21. That the right to education has been treated as one of
transcendental importance in the life of an individual has been recognized not only in this country since
thousands of years, but all over the world. In Mohini Jain the importance of education has been duly and
rightly stressed. The relevant observations have already been set out hereinbefore. In particular, we
agree with the observation that without education being provided to the citizens of this country, the
objectives set forth in the Preamble to the Constitution cannot be achieved. The Constitution would fail.
We do not think that the importance of education could have been better emphasized than in the above
words. The importance of education was emphasized in the ‘Neethishatakam’ by Bhartruhari.

“Right to education, understood in the context of Article 45 and 41 means (a) every child/citizen of this
country has a right to free education until he completes the age of fourteen years, and (b) after a
child/citizen completes 14 years, his right to education is circumscribed by the limits of the economic
capacity of the State and its development. “

“Be that is it may, we must say that at least now the State should honor the command of Article 45. It
must be made a reality – at least now. Indeed, the National Education Policy 1986 says that the promise
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of Article 45 will be redeemed before the end of this century. Be that as it may, we hold that a child
(citizen) has a fundamental right to free education up to the age of 14 years.”

In Rohit Singhal and others vs. Principal, Jawahar N. Vidyalaya and others, the court held that

“Children are not only the future citizens but also the future of the earth. Elders in general, and parents
and teachers in particular, owe a responsibility for taking care of the well-being and welfare of children.
The world shall be a better or worse place to live according to how we treat the children today.
Education is an investment made by the nation in its children for harvesting a future crop of responsible
adults, productive of a well-functioning society.”

The right to higher education of the person, at the end of the age of 14 years, is not unconditional but is
subject to limitations on the economic ability and growth of the state. Limitation of economic potential
relies on subjective state satisfaction. Therefore, the duty of the State to provide education is thus
subject to the limitations of its economic potential and growth.
The State may discharge the responsibilities generated by Articles 41, 45 and 46 of the Constitution
either by creating its own institutions or by aiding, recognizing and/or affiliating private educational
institutions. Where assistance is not given to private educational institutions and only recognition or
affiliation is provided, it cannot be demanded that the private education institution shall charge only the
fee which is charged for identical courses in government institutions. Private educational institutions
must and are permitted to charge a higher fee, not above the limit set in that term.

MEMORIAL ON BEHALF OF PETITIONER

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2. Whether a citizen of India has the fundamental right to establish and run an educational
institution under Article 19(1)(g) or any other provision in the Constitution?

Article 19(1)(g) of the Constitution declares that all citizens of this country shall have the right “to
practice any profession, or to carry on any occupation, trade or business”. Clause (6) of Article 19,
however, says: “Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law
insofar as it imposes or prevents the State from making any law imposing, in the interests of the general
public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in
particular, nothing in the said sub-clause shall affect the operation of any existing law insofar as it relates
to, or prevents the State from making any law relating to,—

(I) the professional or technical qualifications necessary for practicing any profession or carrying on any
occupation, trade or business, or (ii) the carrying on by the State, or by a corporation owned or
controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete
or parti al, of citizens or otherwise.”

While dealing with the second question, the court adopts the line of reasoning stated in State of
Bombay v. R.M.D.C, that imparting education cannot be treated as a trade or business. Education cannot
be allowed to be converted into commerce.
Both the Parliament and the State legislatures have articulated this aim in an unmistakable way.
Particularly in the light of our history and from the point of view of the broader public interest,
marketing is favorably negative, as opposed to public policy. A resident of this country may have the
right to set up an educational institution, but no resident, person or institution has the right to
membership or approval or grant-in-aid from the State and court also cleared that if anybody wants to
start an institution exclusively for the purpose of educating the students he could do so, although it
must be taken into account Sections 22 and 23 of the University Grants Commission Act that forbids the
granting of degrees only by a university.

Relied upon certain decisions in support of their contention that right to establish an educational
institution flows from Article 19(1)(g). In the case n Bharat Sevashram Sangh v. State of Gujarat, a
decision of a Bench), while dealing with Section 33 of the Gujarat Secondary Education Act empowering
the Government to take over an educational institution in certain situations for a period not exceeding
five years, the learned Judges observed that “the said provision is introduced in the interest of the
general public and does not in any way affect prejudicially the fundamental right of the management
guaranteed under Article 19(1)(g) of the Constitution”. Actually, the issue now before us was not raised
or considered in the said decision. Moreover, the decision does not say whether it is a profession,
occupation, trade or business.

MEMORIAL ON BEHALF OF PETITIONER

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3. Whether the grant of permission to establish and the grant of affiliation by a University imposes
an obligation upon an educational institution to act fairly in the matter of admission of the
students?

In Ahmedabad St. Xaviers College Society v. State of Gujarat it has been held uniformly by all the nine
learned Judges that there is no fundamental right to affiliation. Ray, C.J., stated that this has been “the
consistent view of this Court”. They also recognized that recognition or affiliation is essential for a
meaningful exercise of the right to establish and administer educational institutions. Recognition may be
granted either by the Government or any other authority or body empowered to accord recognition.
Similarly, affiliation may be granted either by the University or any other academic or other body
empowered to grant affiliation to other educational institutions. In other words, it is open to a person to
establish an educational institution, admit students, impart education, conduct examination and award
certificates to them. But he, or the educational institution has no right to insist that the certificates or
degrees awarded by such institution should be recognized by the State — much less 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 recognition or affiliation from the appropriate agency.

The idea behind the scheme is to eliminate discretion in the management altogether in the matter of
admission. It is the discretion in the matter of admission that is at the root of the several ills complained
of. It is the discretion that has mainly led to the commercialization of education.

‘Capitation fee’ means charging or collecting amount beyond what is permitted by law; all the Acts have
defined this expression in this sense. We must strive to bring about a situation where there is no room
or occasion for the management or anyone on its behalf to demand or collect any amount beyond what
is permitted. We must clarify that charging the permitted fees by the private educational institutions —
which is bound to be higher than the fees charged in similar governmental institutions by itself cannot
be characterized as capitation fees. This is the policy underlying all the four States enactments
prohibiting capitation fees. All of them recognize the necessity of charging higher fees by private
educational institutions. They seek to regulate the fees that can be charged by them — which may be
called permitted fees — and to bar them from collecting anything other than the permitted fees, which
is what ‘capitation fees’ means. Our attempt in evolving the following scheme precisely is to give effect
to the said legislative policy. It would be highly desirable if this scheme is given a statutory shape by
incorporating it in the rules. The scheme evolved herewith is in the nature of guidelines which the
appropriate Governments and recognizing and affiliating authorities shall impose and implement in
addition to such other conditions and stipulations as they may think appropriate as conditions for grant
of permission, grant of recognition or grant of affiliation, as the case may be. We are confining the
scheme — for the present — only to ‘professional colleges’.

The expression ‘professional colleges’ in this scheme includes:(i) Medical colleges, dental colleges and
other institutions and colleges imparting Nursing, Pharmacy and other courses allied to Medicine,
established and/or run by private educational institutions, (ii) Colleges of Engineering and colleges and
institutions imparting technical education including Electronics, Computer Sciences, established and/or
run by private educational institutions, and (iii) such other colleges to which this scheme is made
applicable by the Government, recognizing and/or affiliating authority.

MEMORIAL ON BEHALF OF PETITIONER

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It is made clear that only those institutions which seek permission to establish and/ or recognition
and/or affiliation from the appropriate authority shall alone be made bound by this scheme. This
scheme is not applicable to colleges run by Government or to University Colleges. In short, the scheme
hereinafter mentioned shall be made a condition of permission, recognition or affiliation, as the case
may be. For each of them viz., grant of permission, grant of recognition, grant of affiliation, these
conditions shall necessarily be imposed, in addition to such other conditions as the appropriate
authority may think appropriate. No private educational institution shall be allowed to send its students
to appear for an examination held by any Government or other body constituted by it or under any law
or to any examination held by any University unless the concerned institution and the relevant course of
study is recognized by the appropriate authority and/or is affiliated to the appropriate University, as the
case may be.

MEMORIAL ON BEHALF OF PETITIONER

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PRAYER

MEMORIAL ON BEHALF OF PETITIONER