Miss Mohini
Jain Vs. State of Karnataka & Ors [1992] INSC 184 (30 July 1992)
Kuldip
Singh (J) Kuldip Singh (J) Sahai, R.M. (J)
CITATION:
1992 AIR 1858 1992 SCR (3) 658 1992 SCC (3) 666 JT 1992 (4) 292 1992 SCALE
(2)90
ACT:
Constitution
of India, 1950-Articles 41, 45-Right to
education-Whether a constitutional right-capitation fee- Whether
unconstitutional.
Karnataka
Educational Institutions (Prohibition of Capitation Fee) Act,
1984-preamble-Object of.
Karnataka
Educational Institutions (Prohibition of Capitation Fee) Act, 1984-Sections 3,
5(1)-Notification under-M.B.B.S. Course-Admission-Tuition fee-Different rates
for the three categories of students-Legality of-Excess Tuition fee other than Rs.
2,000 per annum-Whether Capitation fee-Whether permissible in law-Held,
Notification ultra vires.
HEAD NOTE:
The
respondent No.1 - State Government issued a notification dated June 5, 1989
under section 5(1) of the Karnataka Educational Institutions (Prohibition of
Capitation Fee) Act, 1984 fixing the tuition fee, other fees and deposits to be
charged from the students by the private Medical Colleges in the State. The
tuition fee per year for the candidates admitted against "Government
seats" was Rs.2,000, whereas for the Karnataka students (other than those
admitted against "Government seats") the tution fee was not exceeding
Rs.25,000 and for the students belonging to the category of "Indian
students from outside Karnataka" were to pay the tuition fee not exceeding
Rs.60,000 per annum.
The
petitioner, who came under the category of "Indian students from outside
Karnataka", was informed by the respondent No.3 - Private Medical College,
that she could be admitted to the MBBS Course in the session commencing
February/march 1991, provided she would deposit Rs.60,000 as the tuition fee
for the first year and furnish a bank guarantee in respect of the fees for the
remaining years of the MBBS Course. When the father of the petitioner informed
the respondent No. 3 that he could not pay the exorbitant annual tution fee of
Rs.60,000, the petitioner was denied admission.
659
The petitioner has, under Article 32 of the Constitution of India, challenged
the notification dated 5.6.1989 issued by the respondent No. 1, permitting the
Private Medical Colleges to charge exorbitant tution fees from the students
other than those admitted to the "Government seats".
Respondent
No.3 contended that the students from whom higher tuition fee was charged
belong to a different class;
that
those who were admitted to the "Government seats" were meritorious
and the remaining non-meritorious' that classification of candidates into those
who possessed merit and those who did not posses merit was a valid
classification and as such the college-management was within its right to
charge more fee from those who did not possess merit; that the object sought to
be achieved by the said classification was to collect money to meet the
expenses incurred by the college in providing medical education to the
students.
The
intervener-Karnataka Private Medical Colleges Association argued that the
Private Medical Colleges in the State of Karnataka did not receive any
financial aid from either the Central or the State Government; that the Private
Medical Colleges would incur about Rs. 5 lakhs per student as expenditure for 5
year MBBS course; that 40% of the seats in the colleges were set apart as
"Government seats" to be filled by the Government; that the students
selected and admitted against Government seats would pay only Rs. 2,000 per
annum as such the rest of the burden was on those who were admitted against
management quota; that the tuition fee was not excessive and as such there was
no question of making any profit by the Private Medical Colleges in the State
of Karnataka.
Respondent
No.3 and the intervener submitted that in order to run the medical colleges the
managements were justified in charging the capitation fee; that apart from the
Act, there was not provision under the Constitution or under any other law
which would forbid the charging of capitation fee.
On the
question: (1) Was there a `right to education' guaranteed to the people of India under the Constitution? If so, did
the concept of `capitation fee' infrasts the same?;
(2)
Whether the charging of capitation fee in consideration of admissions to
educational institutions was arbitrary, unfair, unjust and as such violated
Article 14 of the Constitution?; (3) Whether the impugned notification
permitted the Private Medical Colleges to charge capitation fee in the guise of
regulating fees under the 660 Act? and (4) Whether the notification was violative
of the provisions of the Act?, allowing the writ petition to the extent of
striking down the capitation fee, this Court
HELD:
1.01.
The dignity of man is inviolable. It is the duty of the State to respect and
protect the same. It is primarily the education which brings-forth the dignity
of a man. The framers of the Constitutions were aware that more than seventy
per cent of the people, whom they were giving the Constitution of India, were illitrate.
They were also hopeful that within a period of ten years illiteracy would be
wiped out from the country. It was with that hope that Articles 41 and 45 were
brought in Chapter IV of the constitution. An individual cannot be assured of
human dignity unless his personality is developed and the only way to do that
is to educate him. [667F]
1.02.
Article 41 in Chapter IV of the Constitution recognises an individual's right
"to education". It says that "the State shall, within the limits
of its economic capacity and development, make effective provision for the
securing the right....to education...." Although a citizen cannot enforce
the directive principles contained in Chapter IV of the Constitution but these
were not intended to be mere pious declarations. [667H]
1.03.
Without making "right to education" under Article 41 of the
Constitution a reality the fundamental rights under Chapter III shall remain
beyond the reach of large majority which is illiterate. [668E]
1.04.
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. [670A]
1.05.
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 state-owned or state-recognised educational institutions. When the
State Government grants recognition to the private educational institutions it
creates an agency to fulfil its obligation under the Constitution. The students
are given admission to the educational institutions - whether state-owned or
state-recognised in recognition of their 661 `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. [672C-E]
1.06.
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. [670C]
1.07.
"Right to life" is the compendious expression for all those rights
which the Court must enforce because they are basic to the dignified enjoyment
of life. It extends to the full range of conduct which the individual is free
to pursue. The right to education flows directly from right to life. The right
to life under Article 21 and the dignity of an individual cannot be assured unless
it is accompanied by the right to education. The State Government is under an
obligation to make endeavour to provide educational facilities at all levels to
its citizens. [669 F-G]
1.08.
Capitation fee makes the availability of education beyond the reach of the
poor. The State action in permitting capitation fee to be charged by State-recognised
educational institutions is wholly arbitrary and as such violative of Article
14 of the Constitution of India [672G]
1.09
The capitation fee brings to the fore a clear class bias. It enable the rich to
take admission whereas the poor has to withdraw due to financial inability. A
poor student with better merit cannot get admission because he has no money
whereas the rich can purchase the admission.
Such a
treatment is patently unreasonably, unfair and unjust. There is, therefore, no
escape from the conclusion that charging of capitation fee in consideration of
admissions to educational institutions is wholly arbitrary and as such infracts
Article 14 of the Constitution. [673 F- G] Francis Coralie Mullin v. The
Administrator, Union Territory of Delhi, [1981] 2 SCR 516; Bandhua Mukti Morcha
v. Union of India and Ors., [1984] 2 SCR 67; E.P. Royappa v. State of Tamil Nadu and Anr., [1974] 2 SCR 348; Maneka
Gandhi v. Union of India, [1978] 2 SCR 621; Ramana Dayaram Shetty v. The International Airport Authority of India and Ors., [1979] 3 SCR 1014; Ajay Hasia etc. v. Khalid Mujib Sehravardi
and Ors. etc., [1981] 2 SCR 79 and Dr. Pradeep Jain etc. v. Union of India Ors.
etc., [1984] 3 SCR 942, referred to.
662
D.P. Joshi v. The State of Madhya Bharat
and another, [1955] SCR 1215, distinguished.
Dr. Ambedkar
- C.A.D. Vol. VIII P.476; IMA Resolutions of India Medical Conference held at Cuttak
on December 28- 30, 1980; Presidential Address of Dr. K.S. Chugh, Chairman,
Department of Medicine and Head Department of Nephrology Pastgraduate Institute
of Medical Education and Reseach, Chandigarh delivered on 17.1.1992 at the 47th
Annual Conference of the Association of Physicians in India, held at Patna,
referred to.
2. The
Karnataka Educational Institutions (prohibition of Capitation Fee) Act, 1984
has been brought into existence by the Karnataka State Legislature with the
object of effectively curbing the evil practice of collecing capitation fee for
admitting students into the educational institutions in the State of Karnataka. The preamble to the Act which
makes the object clear. [679F]
3.01.
The State Government in fulfilling its obligation under the Constitution to provide
medical education to the citizens has fixed Rs.2,000 per annum as tuition fee
for the students selected on merit for admission to the medical colleges and
also against "Government seats" in private medical colleges.
Therefore, the tuition fee by a student admitted to the private medical college
is only Rs.2,000 per annum. The seats other than the "Government
seats" which are to be filled from outside Karnataka the management has
been given free hand where the criteria of merit is not applicable and those
who can afford to pay Rs.60,000 per annum are considered at the discretion of
the management. [680 F-H]
3.02.
If the State Government fixes Rs.2,000 per annum as the tuition fee in
government colleges and for "Government seats" in private medical
colleges then it is the State-responsibility to see that any private college
which has been set up with Government permission and is being run with
Government recognition is prohibited from charging more than Rs.2,000 from any
student who may be resident of any part of India. When the State Government
permits a private medical college to be set-up and recognises its curriculum
and degrees, then the said college is performing a function which under the
Constitution has been assigned to the State Government. [681A]
3.03.
Capitation fee in any form cannot be sustained in the eyes of law. The only
method of admission to the medical colleges in consonance 663 with fair play
and equity is by ways of merit and merit alone. Charging of capitation fee by
the private educational institutions as a consideration for admission is wholly
illegal and cannot be permitted. [674 B-C]
3.04.
Rs.60,000 per annum permitted to be charged from Indian students from outside
Karnataka in Para 1(d) of the notification is not tuition fee but in fact a
capitation fee and as such cannot be sustained and is liable to be struck down.
[681C]
3.05.
What is provided is paras 1 (d) and 1(c) of the impugned notification dated June 5, 1989 is capitation fee and not a tuition
fee. It has to be held that the notification is beyond the scope of the Act
rather goes contrary to Section 3 of the Act and as such has to be set aside.
It is not permissible in law for any educational institution to charge
capitation fee as a consideration for admission to the said institution. [681E]
ORIGINAL
JURISDICTION : Writ petition (Civil) No. 456 of 1991.
(Under
Article 32 of the Constitution on India). Vijay Pandia and R. Satish for the
Petitioner.
Santosh
Hegde, R. Jagannatha Gouley, M.K. Dua, K.H. Nobin Singh, Manoj Sarup, C.S. Vaidyanathan,
K.V. Mohan, Ms. Anita Lalit and M. Veerappa for the Respondents.
The
Judgment of the Court was delivered by KULDIP SINGH. J. The Karnataka State
Legislature, with the object of eliminating the practice of collecting
capitation fee for admitting students into educational institutions, enacted
the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act,
1984 (the Act). The Act which replaces the Karnatatak Ordinance No. 14 of 1983
came into force with effect from July 11, 1983. Purporting to regulate the tuition fee to be charged by
the Private Medical Colleges in the State, the Karnataka Government issued a
notification dated June
5, 1989 under Section
5(1) of the Act thereby fixing the tuition fee, other fees and deposits to be
charged from the students by the Private Medical Colleges in the State. Under
the notification the candidates admitted against "Government seats"
are to pay Rs.2,000 per year as tuition fee. The Karnataka students (other than
those admitted against "Government seats") are to be charged tuition
fee not 664 exceeding Rs.25,000 per annum. The third category is of
"Indian students from outside Karnataka", from whom tuition fee not
exceeding Rs.60,000 per annum is permitted to be charged.
Miss Mohini
Jain a resident of Meerut was informed by the management of Sri Sriddharatha
Medical College, Agalokote, Tumkur in the State of Karnataka that she could be
admitted to the MBBS course in the session commencing February/March 1991.
According to the management she was asked to deposit Rs.60,000 as the tuition
fee for the first year and furnish a bank guarantee in respect of the fee for
the remaining years of the MBBS course. The petitioner's father informed the
management that it was beyond his means to pay the exorbitant annual fee of
Rs.60,000 and as a consequence she was denied admission to the medical college.
Mohini
Jain has alleged that the management demanded a further capitation fee of repees
four and a half lakhs but the management has vehemently denied the same.
In
this petition under Article 32 of the Constitution of India Miss Mohini Jain
has challenged the notification of the Karnataka Government permitting the
Private Medical Colleges in the State of Karnataka to charge exorbitant tuition
fees from the students other than those admitted to the "Government
seats".
Mr. Santosh
Hedge learned counsel appearing for the medical college respondent No. 3 has
contended that the students from whom higher tuition fee is charged belong to a
different class. According to him those who are admitted to the
"Government seats" are meritorious and the remaining non-meritorious.
He states that classification of condidates into those who possess merit and
those who do not possess merit is a valid classification and as such the
college- management is within its right to charge more fee from those who do
not possess merit. He further states that the object sought to be achieved by
the said classification is to collect money to meet the expenses incurred by
the college in providing medical education to the students. Mr. C.S. Vaidyanathan,
learned counsel appearing for the intervener Karnataka Private Medical Colleges
Association has argued that the Private Medical Colleges in the State of Karnataka do not receive any financial aid
from either the Central or the State Government. According to him the Private
Medical Colleges incur about Rs.5 lakhs per student as expenditure for a 5 year
MBBS course. 40% of the seats in these 665 colleges are set part as
"Government seats" to be filled by the Government. The students
selected and admitted against Government seats pay only Rs.2,000 perannum as
such the rest of the burden falls on those who are admitted against management
quota. He, therefore, contended that the tuition fee is not excessive and as
such there is no question of making any profit by the Private Medical Colleges
in the State of Karnataka. Mr. Hegde and Mr. Vaidyanathan have vehemently
contended that in order to run the medical colleges the managements are justified
in charging the capitation fee. According to them, apart from the act, there is
no provision under the Constitution or under any other law which forbids the
charging of capitation fee. Finaliy they have relied upon the judgment of this
Court in D.P. Joshi v. The State of Madhya Bharat, and another [1955] SCR 1215.
After
hearing learned counsel for the parties and also perusing the written arguments
submitted by them the following points arise for our consideration in this writ
petition:
(1) Is
there a `right to education' guaranteed to the people of India under the
Constitution? If so, does the concept of `capitation fee' infracts the same?
(2)
Whether the charging of capitation fee in consideration of admissions to
educational institutions is arbitrary, unfair, unjust and as such violates the
equality clause contained in Article 14 of the Constitution?
(3)
Whether the impugned notification permits the Private Medical Colleges to
charge capitation fee in the guise of regulating fees under the Act?
(4)
Whether the notification is violative of the provisions of the Act which in
specific terms prohibit the charging of capitation fee by any educational
institution in the State of Karnataka?
In
order to appreciate the first point posed by us it is necessary to refer to
various provisions of the Constitution of India. The preamble promises to
secure to all citizens of India "Justice, social, economic and
political" "liberty of thought, expression, belief, faith and
worship". It further provides "equality of status and of
opportunity" and assures dignity of the individual. Articles 21, 38, 39(a)
(f), 41 and 45 of the Constitution are reproduced hereunder:
666
"21.
Protection of life and personal liberty.-No person shall be deprived of his
life or personal liberty except according to procedure established by
law."
"38.
State to secure a social order for the promotion of walfare of the people.-
(1)
The State shall strive to promote the Welfare of the people by securing and
protecting as effectively as it may a social order in which justice, social,
economic and political, shall inform all the institutions of the national life.
(2)
The State shall, in particular, strive to minimise the inequalities in income,
and endeavour to eliminate inequalities in status, facilities and
opportunities, not only amongst individuals but also amongst groups of people
residing in different areas or engaged in different vocations."
"39.
Certain principles of policy to be followed by the state.-The State shall, in
particular, direct its policy towards securing- (a) that the citizens, men and
women equally, have the right to an adquate means to livelihood;
(f) that
children are given opportunities and facilities to develop in a hearlthy manner
and in conditions of freedom and dignity and that childhood and youth are
protected against exploitation and against moral and material
abandonment." "41. Right to work, to education and to public
assistance in certain cases.- The State shall, within the limits of its
economic capacity and development, make effective provision for securing the
right to work, to education and to public assistance in cases of unemployment,
old age, sickness and disablement, and in other cases of underserved
want."
"45.
Provision for free and compulsory education for children.- The State shall endeavour
to provide, within a period to ten years from the commencement of this
Constitution, for free and compulsory education for all children until they
complete the age of fourteen years." 667 It is no doubt correct that
"right to education" as such has not been guaranteed as fundamental
right under Part III of the Constitution but reading the above quoted
provisions comulatively it becomes clear that the framers of the Constitution
made it obligatory for the State to provide education for its citizens.
The
preamble promises to secure justice "social, economic and political"
for the citizen. A peculiar feature of the Indian Constitution is that it
combines social and economic rights along with political and justiciable legal
rights. The preamble embodies the goal which the State has to achieve in order
to establish social justice and to make the masses free in the positive sense.
The securing of social justice has been specifically enjoined an object of the
State under Article 38 of the Constitution. Can the objectice which has been so
prominently pronounced in the preamble and Article 38 of the Constitution be
achieved without providing education to the large majority of citizens who are illiterate.
The objectives flowing from the preamble cannot be achieved and shall remain on
paper unless the people in this country are educated. The three pronged justice
promised by the preamble is only an illusion to the teaming-million who are
illiterate. It is only is the education which equips a citizen to participate
in achieving the objectives enshrined in the preamble. The preamble further
assures the dignity of the individual. The Constitution seeks to achieve this
object by guaranteeing fundamental rights to each individual which he can
enforce through court of law if necessary. The directive principles in Part IV
of the Constitution are also with the same objective. The dignity of man is
inviolable. It is the duty of the State to respect and protect the same. It is primarilty
the education which brings-forth the dignity of a man. The framers of the
Constitution were aware that more than seventy per cent of the people, to whom
they were giving the Constitution of India, were illiterate. They were also
hopeful that within a period of ten years illiteracy would be wiped out from
the country. It was with that hope that Articles 41 and 45 were brought in
Chapter IV of the Constitution. An individual cannot be assured of human
dignity unless his personality is developed and the only way to do that is to
educate him. This is why the Universal Declaration of Human Rights, 1948 emphasises
"Education shall be directed to the full development of the human
personality..." Article 41 in Chapter IV of the Constitution recognises an
individual's right "to education". It says that "the State
shall, within the limits of its economic capacity and development, make
effective provision for securing the right.....to 668 education". Although
a citizen cannot enforce the directive principles contained in Chapter IV of
the Constitution but these were not intended to be mere pious declarations. We
may quote the words of Dr. Ambedkar in that respect:
"In
enacting this Part of the Constitution, the Assembly is giving certain
directions to the future legislature and the future executive to show in what
manner they are to exercise the legislature and the executive power they will
have. Surely it is not the intention to introduce in this Part these principles
as mere pious declarations. It is the intention of the Assembly that in future
both the legislature and the executive should not merely pay lipservice to
these principles but that they should be made the basis of all legislative and
executive action that they may be taking hereafter in the matter of the governance
of the country" (C.A.D. Vol.VII p.476.) The directive principles which are
fundamental in the governance of the country cannot be isolated from the
fundamental rights guaranteed under Part III. These principles have to be read
into the fundamental rights. Both are supplementary to each other. The State is
under a constitutional mandate to create conditions in which the fundamental
rights guaranteed to the individuals under Part III could be enjoyed by all.
Without making "right to education" under Article 41 of the
Constitution a reality the fundamental rights under Chapter III shall remain
beyond the reach of large majority which is illiterate.
This
Court has interpreted Article 21 of the Constitution of India to include the
right to live with human dignity and all that goes along with it. In Francis Coralie
Mullin v. The Administrator, Union Territory of Delhi, [1981]2 SCR 516, this
Court elaborating the right guaranteed under Article 21 of the Constitution of
the India held as under:
"But
the question which arises is whether the right to life is limited only to
protection of limb or faculty or does it go further and embrace something more.
We think that the right to life includes the right to live with human dignity
and all that goes along with it, namely the bare necessaries of life such as
adequate nutrition, clothing and shelter and facilities for reading, writing
and expression oneself in diverse forms, freely 669 moving about and mixing and
commingling with fellow human beings. Of course, the magnitude and content of
the components of this right would depend upon the extent of the economic
development of the country, but it must, in any view of the matter, include the
right to the basic necessities of life and also the right to carry on such funtions
and activities as constitute the bare minimum expression of the
human-self."
In Bandhua
Mukti Morcha v. Union of India Ors., [1984] 2 SCR 67, this Court held as
under"- "This right to live with human dignity enshrined in Article
21 derives its life breath from the Directive principles of State Policy and
particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at
the least, therefore, it must include protection of the health and strength of
workers men and women, and of the tender age of children against abuse,
opportunities and facilities for children to develop in a healthy manner and in
conditions of freedom and dignity, educational facilities, just and humane
conditions of work and maternity relief. These are the minimum requirements
which must exist in order to enable a person to live with human dignity and no
State - neither the Central Government nor any State Government - has the right
to take any action which will deprive a person of the enjoyment of these basic
essential." "Right to life" is the compendious expression for
all those rights which the Courts must enforce because they are basic to the
dignified enjoyment of life. It extends to the full range of conduct which the
individual is free to pursue. The right to education fiows directly from right
to life. The right to life under Article 21 and the dignity of an individual
cannot be assured unless it is accompanied by the right to education. The State
Government is under an obligation to make endeavour to provide educational
facilities at all levels to its citizens.
The
fundamental rights guaranteed under Part III of the Constitution of India
including the right to freedom of speech and expression and other rights under
Article 19 cannot be appreciated and fully enjoyed unless a citizen is educated
and is conscious of his individualistic dignity.
670
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 of several new medical colleges
under various private bodies and organisations. 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.
As
back as December 1980 the Indian Medical Association in its 56th All India
Medical Conference held at Cuttack on December 28-30, 1980 passed the following resolutions:
"The
56th All India Medical Conference views with great concern the attitude of
State Goverments particularly the State Government of Karnataka in permitting
the opening of new Medical Colleges under various bodies and organisations in
utter disregard to the recommendations of Medical Council of India and urges
upon the authorities and the Government of Karnataka not to permit the opening
of any new medical college, by private bodies.
It
further condemns the policy of admission on the basis of capitation fees. This commercialisation
of medical education endangers the lowering of standards of medical education
and encourages bad practice." Dr. K.S. Chugh, Chairman, Department of
Medicine and Head Department of Nephrology Postgraduate Institute of Medical
Education and Research Chandigarh, recipient of Dr. B.C. Rai National Award as
`eminent medical man for 1991', in his Presidential Address delivered on
January 17, 1992 at the 4th Annual Conference of the Association of Physicians
in India held at Patna observed as under:
"In
the recent past, there has been a mushroom growth of 671 medical colleges in
our country. At the time of independence we had 25 medicaal college which
turned out less than 2000 graduates every year. At the present time, there are 172
)150 already functioning and 22 are being established) medical colleges with an
annual turn over of over 20,000 graduates. The Mudaliar Commission had
recommended a doctor-population ratio of 1 : 3500. We have already achieved a
ratio of 1 : 2500. If we take into account the practitioners of other systems
of medicine who enjoy pay scales and privileges comparable to those of
allopathic doctors, India will soon have a doctor-population
ratio of 1 : 500. Such over production of tehnical man-power from our medical
colleges is bound to lead to unemployment and frustration. Indeed the unabated
exodus of our professional collegues to other countries is a direct consequence
of these lop- sided policies.
According
to some estimates. India has exported human capital worth
over 51 billion dollars to USA alone
during 1966-88. Currently about 8000 skilled young men and women are leaving
the country every year. It is high time a blanket ban is imposed on any further
expansion of medical colleges in our country and a well thought out plan to
reduce the intake into existing institutions is prepared. This will help to
improve the standard of medical education and health care in our country.
It is
common knowlege that many of the newly started medical colleges charge huge
capitation fees. Besides, most of these are poorly equipped and provide scanty
facilities for training of students. At best such institutions can be termed as
"Teaching Shops". Experience has shown that these colleges admit
students who have been unable to gain admission in recognised medical colleges.
The
result is a back door entry into medical training obtained solely by the
ability to pay one's way through. Even the advice of the Medical Council of
India is sidelined in many such cases.
The
Government must resist all pressures to allow this practice to continue.
Admission to medical colleges bought by paying capitation fees must be stepped
forthwith and all such existing institutions required to strictly adhere to the
Medical Council of India rules.
672 In
the words of my predecessor Dr. V. Parameshvara, "The need of the hour is
better doctors than more doctors, better health education than more education,
better health care than more health care delivery." The indian Medical
Association, the Association of Physicians of India and various other bodies
and organisations representing the medical profession in this country have
unanimously condemned the practice of charging capitation fee as a
consideration for admission to the medical college.
We
hold that every citizen has a `right to education' under the Constitution. The
State is under an obligation to established educational institutions to enable
the citizens to enjoy the said right. The State may discharge its obligation
through state-owned or state-recognised educational institutions. When the
State Government grants recognition to the private educational institutions it
creates an agency to fulfil its obligation under the Constitution. The students
are givin admission to the educational institutions-whether state-owned or
state- recongnised-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.
Indian
civilsation recognises education as one of the pious obligations of the human
society. To establish and administer educational institutions is considered a
religious and charitable object. Education in India has never been a commodity for sale. Looking at the
economic- front, even forty five years after achieving independence, thirty per
cent of the population is living below proverty- line and the bulk of the
remaining population is struggling for existence under poverty-conditions. The
preamble promises and the directive principles are a mandate to the state to
eradicate poverty so that the poor of this country can enjoy the right to life
guaranteed under the Constitution. The state action or inaction which defeats
the constitutional-mandate is per se arbitary and cannot be sustained.
Capitation fee makes the availability of education beyond the reach of the
poor. The state action in permitting capitation fee to be charged by state-recognised
educational institutions is wholly arbitrary and as such violative of Article
14 of the Constitution of India. During the last two decades the horizon of
equality clause has been widened as a result of this Court's judgments.
673
Earlier the violation of Article 14 was judged on the twin t ests of classification
and nexus. This Court in E.P. Royappa v. State of Tamil Nadu and Anr., [1974] 2 SCR 348 gave new
dimension to Article 14 in the following words:
"Equality
is a dynamic concept with many aspects and dimensions and it cannot be
"cribbed, cabined and confined" within traditional and doctrinaire
limits. From a positivistic point of view, equality is antithetic to
arbitrariness. In fact equality and arbitrariness are sworn enemies; one
belongs to the rule of law in a republic while the other, to the whim and
caprice of an absolute monarch.
Where
an act is arbitrary it is implicit in it that it is unequal both according to
political logic and constitutional law and is therefore violative of Article
14." This Court in Maneka Gandhi v. Union
of India [1978] 2 SCR 621 Ramana Dayaram Shetty
v. The International Airport Authority of India and Ors., [1979] 3 SCr 1014 and Ajay Hasia etc. v. Khalid Mujib Sehravardi
and Ors. etc., [1981] 2 SCR 79 following E.P. Royappa authoritatiovely held
that equality is directly opposed to arbitrariness. In Ajay Hasis this Court
observed as under :
"Unfortunately,
in the early stages of the evolution of our constitutional law, Article 14 came
to be identified with the doctrine of classification... In Royappa v. State of Tamil Nadu this Court laid bare a new
dimension of Article 14 and pointed out that that Article has highly activist
magnitude and it embodies a guarantee against arbitrariness....." The
capitation fee brings to the fore a clear class bias. It enable the rich to take
admission whereas the poor has to withdraw dur to financial inability. A poor
student with better merit canoot get admission because he has no money whereas
the rich can purchase the admission. Such a treatment is patently unreasonable,
unfair and unjust. There is, therefore, no escape from the conclusion that
charging of capitation fee in consideration of admissions to educational
institutions is wholly arbitrary and as such infracts Article 14 of the
Constitution.
We do
not agree with Mr. Hegde that the management has a right to admit
non-meritorious candidates by charging capitation fee as a con- 674 sideration.
This practice strikes at the very root of the constitutional scheme and our
educational system.
Restricting
admission to non-meritorious candidates belonging to the richer section of
society and denying the same to poor meritorious is wholly arbitrary against
the constitutional scheme and as such cannot be legally permitted. Capitation
fee in any form cannot be sustained in the eyes of law. The only method of
admission to the medical colleges in consonance with the fair play and equity
is by ways of merit and merit alone.
We,
therefore, hold and declare that charging of capitation fee by the private
educational institutions as a consideration for admission is wholly illegal and
cannot be permitted.
Mr. Santosh
Hegde and Mr.Vaidyanathan learned counsel for respondent 3 and the interverner
have relied upon D.P. Joshi v. The State of Madhya Bharat and Anr., (supra) for the proposition that classification
of candidates for admission to medical colleges on the basis of residence is
permissible. In D.P. Joshi's case a resident of Delhi was admitted as a student of Mahatma Gandhi Memorial Medial
Cellege Indore which was run by the State of Madhya Bharat.
His
complaint was that the rules in force in the said institution discriminated in
the matter of fees between students who were residents of Madhya Bharat and
those who were not, and that the latter had to pay in addition to the tuition
fee and charges payable by all the students a sum of Rs.1500 per annum as
capitation fee and that the charging of such a fee from the students coming out
of Madhya Bharat was in contravention of Articles 14 and 15(1) of the
Constitution of India. In D.P. Joshi's case the only point for decision before
this Court was whether the classification on the ground of residence was
justified.
This
court while dealing with the question observed as under:
"The
impugned rule divides, as already stated, self-nominees into two groups, those
who are bona fide resident of Madhya Bharat and those who are not, and while it
imposes a capitation fee on the latter, it exempts the former from the payment
thereof. If thus proceeds on a classification based on residence within the
State, and the only point for decision is whether the ground of classification
has a fair and substantial relation to the purpose of the law, or whether it is
purely arbitrary and 675 fanmciful.
The
object of the classification underlying the impugned rule was clearly to help
to some extent students who are residents of Madhya Bharat in the prosecution
of their studies, and it cannot be disputed that it is quite a legitimate and
laudable objective for a State to encourage education within its borders.
Education is a State subject, and one of the directive principles declared in
Part IV of the Constitution is that the State should make effective provisions
for education within the limits of its economy. (vide article 41). The State
has to contribute for the upkeep and the running of its educational
institutions. We are in this petition concerned with a Medical College, and it is well-known that it requires considerable finance
to maintain such an institution. If the State has to spend money on it, is it
unreasonable that it should so order the educational system that the advantage
of it would to some extent at least enure for the benefit of the State? A
concession given to the residents of the State in the matter of fees is
obviously calculated to serve that end, as presumably some of them might, after
passing out of the College, settle down as doctors and serve the needs of the
locality. The classification is thus based on a ground which has a reasonable
relation to the subject-matter of the legislation, and is in consequence not
open to attack. It has been held in the State of Punjab v.
Ajaib
Singh and Anr., that a classification might validly be made on a geographical
basis. Such a classification would be eminently just and reasonable, where it
relates to education which is the concern primarily of the State. The
contention, therefore, that the rule imposing capitation fee is in
contravention of article 14 must be rejected." D.P. Joshi's case is an
authority for the proposition that classification on the ground of residence is
a justifiable classification under Articles 14 and 15(1) of the Constitution of
India. The question that capitation fee as a consideration for admission is not
permissible under the scheme of the constitution, was neither raised nor
adverted to by this Court. The imposition of capitation fee was also not
questioned on the ground of arbitrariness. The only question raised before the
Court was that the Madhya 676 Bharat students could not be exempted from the
payment of capitation fee. It is settled by this Court that classification on
the ground of residence is a valid classification. Subsequently this Court in
Dr. Pradeep Jain etc. v. Union of India and Ors. etc., [1984] 3 SCR 942 reiterated the legal
position on this point. we are, therefore, of the view that D.P. Joshi's case
does not give us ary guidance on the points before us.
To
appreciate the third point it is necessary to notice the relevant provisions of
the Act and the notification.
Section
2(b), (e), 3, 4, and 5 of the Act are as under:
"2(b).
"Capitation fee" means any amount, by whatever name called, paid or
collected directly or indirectly in excess of the fee prescribed under section
5, but does not include the deposit specified under the proviso to section 3.
(e)
"Government Seats" means such number of seats in such educational
institution or class or classes of such institutions in the state as the
Government may, from time to time, specify for being filled up by it in such
manner as may be specified by it by general or special order on the basis of
merit and reservation for Scheduled Castes, Scheduled Tribes, Backward Classes
and such other categories, as may be specified, by the Government from time to
time, without the requirement of payment of capitation fee or cash deposit.
3. Collection
of capitation fee prohibited. - Notwithstanding anything contained in any law
for the time being in force, no capitation fee shall be collected by or on
behalf of any educational institution or by any person who is incharge of or is
reponsible for the management of such institution:
Provided..............
4.
Regulation of Admission to educational institutions etc. - Subject to such
rules, or general or special orders, as may be made by the Government in this
behalf and any other law for the time being in force.
(1) (a)
the minimum qualification for admission to any course of study in an
educational institution shall be such as 677 may be specified by - (i) the
University, in the case of any course study in an educational institution
maintained by or affiliated to such University:
Provided
that the Government may, in the interest of excellence of education, fix any
higher minimum qualification for any course of study.
(ii) the
Government in the case of other courses of study in any other educational
institution;
(b) the
maximum under of students that could be admitted to a course of study in an
educational institution shall be such as may be fixed by the Government from
time to time;
(2)in
order to regulate the capitation fee charged or collected during the period
specified under the proviso to section 3, the Government may, from time to
time, by general or special order, specify in respect of each private
educational institution or class or classes of such institutions.
(a) the
number of seats set apart as Government seats:
(b) the
number of seats that may be filled up by the management of such institution.
(i) from
among Karnataka students on the basis of merit, on payment of such cash
deposits refundable after such number of years, with or without interest as may
be specified therein, but without the payment of capitation fee; or (ii) at the
discretion:
Provided
that such number of seats as may be specified by the Government but not less tha
fifty per cent of the total number of seats referred to in clauses (a) and (b)
shall be filled from among Karnataka students.
Explanation. - For the purpose of this section
Karnataka students means persons who have studied in such educational
institutions in the State of Karnataka run or recognised by the 678 Government
and for such number of years as the Government may specify;
(3) an
educational institution required to fill seats in accordance with item (i) of
sub-clause (b) of clause (2) shall form a committee to select candidates for
such seats. A nominee each of the Government and the University to which such
educational institution is affiliated shall be included as members in such
committee.
5.
Regulation of fees, etc. - (1) It shall be competent for the Government, by
notification, to regulate the tuition fee or any other fee or deposit or other
amount that may be received or collected by any educational institution or
class of such institutions in respect of any or all class or classes of
students.
(2) No
educational institution shall collect any fees or amount or accept deposits in
excess of the amounts notified under sub-section (1) or permitted under the
proviso to section 3.
(3)
Every educational institution shall issue an official receipt for the fee or
capitation fee or deposits or other amount collected by it.
(4)
All monies received by any educational institution by way of fee or capitation
fee or deposits or other amount shall be deposited in the account of the
institution, in any Scheduled Bank and shall be applied and expended for the
improvement of the institution and the development of the educational
facilities and for such other related purpose and to such extent and in such
manner as may be specified by order by the Government.
(5) In
order to carry out the purposes of sub- section (4), the Government may require
any educational institution to submit their programs or plans of improvement
and development of the institution for the approval of the Government.
The
relevant part of the notification dated June 5, 1989 issued by the Karnataka
Government under Section 5 of the Act is reproduced hereunder:
679
"In exercise of the powers conferred by sub-section (1) of Section 5 of
the Karnataka educational Institutions (Prohibition of Capitation Fee) Act,
1984, the Government of Karnataka hereby fix the Tuition Fee and other fees and
deposits that may be collected by the private Medical Colleges in the State
with effect from the academic year 1989-90 and until further orders as follows:
(a)
Candidates admitted to seats in Government Medical Colleges shall be charged a
tuition fee of Rs.2,000 each per annum (Rupees two thousand only);
(b)
Candidates admitted against Government seats in Private Medical Colleges shall
be charged a tuition fee of Rs.2,000 each per annum (Rupees two thousand only).
For
this purpose "Government seats" shall mean Government seats as
defined by section 2 (e) of the Karnataka Educational Institutions (Prohibition
of Capitation Fee) Act, 1984;
(c)
Karnataka Students (other than students admitted against Government seats as at
(b) above) admitted by Private Medical Colleges shall be charged tuition fee
not exceeding Rs.25,000 each per annum (Rupees Twenty-five thousand only);
(d)
Indian Students from outside Karnataka admitted by Private Medical Colleges
shall be charged tuition fee not exceeding Rs. 60,000 each per annum (Rupees
Sixty thousand only);
The
Act has been brought into existence by the Karnataka State Legislature with the
object of effectively curbing the evil practice of collecting capitation fee
for admitting students into the educational institutions in the State of
Karnataka. The preamble to the Act which makes the object clear is reproduced thereunder
"An Act to prohibit the collection of capitation fee for admission to
educational institutions in the State of Karnataka and matters relating
thereto;
Where
the practice of collecting capitation fee for admit- 680 ting students into
educational institutions is widespread in the State;
And
whereas this undesirable practice beside contributing to large scale commercialisation
of education has not been conducive to the maintenance of educational
standards;
And
whereas it is considered necessary to effectively curb this evil practice in
public interest by providing for prohibition of collection of capitation fee
and matters relating thereto;
Be it
enacted by the Karnataka State Legislature in the Thirty-fourth Year of the
Republic of India as follows:" Section 3 of the Act prohibits the
collection of capitation fee by any educational institution or by any person
who is in charge of or is responsible for the management of such institutions.
Contravention of the provisions of the Act has been made punishable under
Section 7 of the Act with imprisonment for a term which shall not be less than
three years but shall not exceed seven years and with fine which may extend to
five thousand rupees. Section 5 of the Act authorises the Government to
regulate the tuition fees by way of a notification. The Karnataka Government
have issued a notification under Section 5(1) of the Act wherein the fee
charged from Indian students from outside Karnataka has been fixed not
exceeding Rs. 60,000 per annum. Whether Rs. 60,000 per annum can be considered
a tuition fee or it is a capitation fee is the question for our determination.
The
notification fixes Rs.2000 per annum as the tuition fee for candidates admitted
to the seats in Government medical colleges and for the candidates admitted
against "Government seats" in private medical colleges. All these
seats are filled purely on the merit of the candidates. It is thus obvious that
the State Government in fulfilling its obligation under the Constitution to
provide medical education to the citizens has fixed Rs. 2000 per annum as
tuition fee for the students selected on merit for admission to the medical
colleges and also against "Government seats" in private medical
colleges. Therefore, the tuition fee by student admitted to the private medical
college is only Rs. 2000 per annum. The seats other than the "Government
seats" which are to be filled from outside Karnataka the management has
been given free hand where the criteria of merit is not applicable and those
who can afford to pay Rs. 60,000 per annum are 681 considered at the discretion
of the management. Whatever name one may give to this type of extraction of
money in the name of medical education it is nothing but the capitation fee. If
the State Government fixes Rs.2000 per annum as the tuition fee in government
colleges and for "Government seats" in private medical colleges than
it is the state- responsibility to see that any private college which has been
set up with Government permission and is being run with Government recognition
is prohibited from charging more than Rs. 2000 from any student who may be
resident of any part of India. When the State Government permits a private
medical college to be set-up and recognises its curriculum and degrees than the
said college is performing a function which under the constitution has been
assigned to the State Government. We are therefore of the view that Rs.60,000
per annum permitted to be charged from Indian students from outside Karnataka
in Para. 1(d) of the notification is not tuition fee but in fact a capitation
fee and as such cannot be sustained and is liable to be struck down. Whatever
we have said about para 1(d) is also applicable to Para 1(c) of the
notification.
Since
we have held that what is provided in para 1(d) and 1(c) of the impugned
notification dated June 5, 1989 is capitation fee and not a tuition fee it has
to be held that the notification is beyond the scope of the Act rather goes
contrary to section 3 of the Act and as such has to be set aside. We therefore
hold and declare that it is not permissible in law for any educational
institution to charge capitation fee as a consideration for admission to the
said institution.
For
the reasons given above we allow this writ petition and quashed para 1(d) and
1(c) of the Karnataka State Government notification dated June 5, 1989. As a consequence paragraph 5 of
the said notification automatically becomes redundant. We make it clear that
nothing contained in this judgment shall be applicable to the case of foreign
students and students who are non- resident Indians. We further hold that this
judgment shall be operative prospectively. All those students who have already
been admitted to the private medical colleges in the State of Karnataka in
terms of the Karnataka State Notification dated June 5, 1989 shall not be
entitled to the advantage of this judgment and they shall continue their
studies on the same terms and conditions on which they were admitted to the
consolidated MBBS course.
682
Although we have struck down the capitation fee and allowed the writ petition
to that extent, we are not inclined to grant any relief regarding admission to
the petitioner. She was not admitted to the college on merit and secondly the
course commenced in March-April, 1991 and we see no justification to direct
respondent 3 the medical college to admit the petitioner. The writ petition is
allowed in the above terms with no order as to costs.
V.P.R.
Petition allowed.
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