PETITIONER:
MISS MOHINI JAIN
Vs.
RESPONDENT:
STATE OF KARNATAKA AND ORS.
DATE OF JUDGMENT30/07/1992
BENCH:
KULDIP SINGH (J)
BENCH:
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.
HEADNOTE:
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]
JUDGMENT:
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.
683