{"id":23531,"date":"1992-07-30T00:00:00","date_gmt":"1992-07-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/miss-mohini-jain-vs-state-of-karnataka-and-ors-on-30-july-1992"},"modified":"2015-08-18T14:09:49","modified_gmt":"2015-08-18T08:39:49","slug":"miss-mohini-jain-vs-state-of-karnataka-and-ors-on-30-july-1992","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/miss-mohini-jain-vs-state-of-karnataka-and-ors-on-30-july-1992","title":{"rendered":"Miss Mohini Jain vs State Of Karnataka And Ors on 30 July, 1992"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Miss Mohini Jain vs State Of Karnataka And Ors on 30 July, 1992<\/div>\n
Equivalent citations: 1992 AIR 1858, \t\t 1992 SCR (3) 658<\/div>\n
Author: K Singh<\/div>\n
Bench: Kuldip Singh (J)<\/div>\n
           PETITIONER:\nMISS MOHINI JAIN\n\n\tVs.\n\nRESPONDENT:\nSTATE OF KARNATAKA AND ORS.\n\nDATE OF JUDGMENT30\/07\/1992\n\nBENCH:\nKULDIP SINGH (J)\nBENCH:\nKULDIP SINGH (J)\nSAHAI, R.M. (J)\n\nCITATION:\n 1992 AIR 1858\t\t  1992 SCR  (3) 658\n 1992 SCC  (3) 666\t  JT 1992 (4)\t292\n 1992 SCALE  (2)90\n\n\nACT:\n    Constitution  of India, 1950-Articles 41,  45-Right\t to\neducation-Whether  a  constitutional  right-capitation\tfee-\nWhether unconstitutional.\n     Karnataka\tEducational  Institutions  (Prohibition\t  of\nCapitation Fee) Act, 1984-preamble-Object of.\n     Karnataka\tEducational  Institutions  (Prohibition\t  of\nCapitation  Fee)  Act,\t1984-Sections  3,  5(1)-Notification\nunder-M.B.B.S. Course-Admission-Tuition fee-Different  rates\nfor  the  three categories  of\tstudents-Legality  of-Excess\nTuition\t  fee  other  than  Rs.\t 2,000\t per   annum-Whether\nCapitation fee-Whether permissible in law-Held, Notification\nultra vires.\n\n\n\nHEADNOTE:\n     The  respondent  No.1  -  State  Government  issued   a\nnotification  dated June 5, 1989 under section 5(1)  of\t the\nKarnataka    Educational   Institutions\t  (Prohibition\t  of\nCapitation Fee) Act, 1984 fixing the tuition fee, other fees\nand deposits to be charged from the students by the  private\nMedical Colleges in the State. The tuition fee per year\t for\nthe  candidates\t admitted against  \"Government\t seats\"\t was\nRs.2,000,  whereas  for the Karnataka students\t(other\tthan\nthose  admitted against \"Government seats\") the\t tution\t fee\nwas  not exceeding Rs.25,000 and for the students  belonging\nto the category of \"Indian students from outside  Karnataka\"\nwere  to  pay the tuition fee not  exceeding  Rs.60,000\t per\nannum.\n     The petitioner, who came under the category of  \"Indian\nstudents  from\toutside\t Karnataka\",  was  informed  by\t the\nrespondent No.3 - Private Medical College, that she could be\nadmitted  to  the  MBBS Course\tin  the\t session  commencing\nFebruary\/march 1991, provided she would deposit Rs.60,000 as\nthe  tuition  fee  for the first year  and  furnish  a\tbank\nguarantee in respect of the fees for the remaining years  of\nthe MBBS Course. When the father of the petitioner  informed\nthe  respondent No. 3 that he could not pay  the  exorbitant\nannual\ttution fee of Rs.60,000, the petitioner\t was  denied\nadmission.\n\t\t\t\t\t\t       659\n     The   petitioner\thas,  under  Article   32   of\t the\nConstitution  of  India, challenged the\t notification  dated\n5.6.1989  issued  by the respondent No.\t 1,  permitting\t the\nPrivate\t Medical Colleges to charge exorbitant\ttution\tfees\nfrom   the  students  other  than those\t admitted   to\t the\n\"Government seats\".\n     Respondent\t No.3 contended that the students from\twhom\nhigher tuition fee was charged belong to a different  class;\nthat those who were admitted to the \"Government seats\"\twere\nmeritorious   and   the\t remaining   non-meritorious'\tthat\nclassification of candidates into those who possessed  merit\nand   those   who  did\tnot  posses  merit   was   a   valid\nclassification and as such the college-management was within\nits right to charge more fee from those who did not  possess\nmerit;\tthat  the object sought to be achieved by  the\tsaid\nclassification\twas  to collect money to meet  the  expenses\nincurred  by the college in providing medical  education  to\nthe students.\n     The   intervener-Karnataka\t Private  Medical   Colleges\nAssociation argued that the Private Medical Colleges in\t the\nState  of Karnataka did not receive any financial  aid\tfrom\neither the Central or the State Government; that the Private\nMedical\t Colleges would incur about Rs. 5 lakhs per  student\nas expenditure for 5 year MBBS course; that 40% of the seats\nin  the colleges were set apart as \"Government seats\" to  be\nfilled\tby  the Government; that the students  selected\t and\nadmitted  against Government seats would pay only Rs.  2,000\nper  annum as such the rest of the burden was on  those\t who\nwere admitted against management quota; that the tuition fee\nwas  not  excessive  and as such there was  no\tquestion  of\nmaking\t any profit by the Private Medical Colleges  in\t the\nState of Karnataka.\n     Respondent\t No.3 and the intervener submitted  that  in\norder  to  run\tthe medical colleges  the  managements\twere\njustified  in charging the capitation fee; that\t apart\tfrom\nthe  Act, there was not provision under the Constitution  or\nunder  any  other  law which would forbid  the\tcharging  of\ncapitation fee.\n     On\t the question: (1) Was there a `right to  education'\nguaranteed to the people of India under the Constitution? If\nso, did the concept of `capitation fee' infrasts the  same?;\n(2) Whether the charging of capitation fee in  consideration\nof  admissions\tto educational institutions  was  arbitrary,\nunfair,\t unjust\t and  as such violated\tArticle\t 14  of\t the\nConstitution?;\t (3)  Whether  the   impugned\tnotification\npermitted the Private Medical Colleges to charge  capitation\nfee in the guise of regulating fees under the\n\t\t\t\t\t\t       660\nAct?  and (4) Whether the notification was violative of\t the\nprovisions  of the Act?, allowing the writ petition  to\t the\nextent of striking down the capitation fee, this Court\n     HELD: 1.01. The dignity of man is inviolable. It is the\nduty  of  the State to respect and protect the same.  It  is\nprimarily the education which brings-forth the dignity of  a\nman.  The framers of the Constitutions were aware that\tmore\nthan  seventy per cent of the people, whom they were  giving\nthe  Constitution of India, were illitrate. They  were\talso\nhopeful\t that within a period of ten years illiteracy  would\nbe  wiped out from the country. It was with that  hope\tthat\nArticles  41  and  45  were brought  in\t Chapter IV  of\t the\nconstitution.  An  individual  cannot be  assured  of  human\ndignity unless his personality is developed and the only way\nto do that is to educate him. [667F]\n     1.02.  Article  41 in Chapter IV  of  the\tConstitution\nrecognises  an\tindividual's right \"to education\".  It\tsays\nthat  \"the  State shall, within the limits of  its  economic\ncapacity and  development, make effective provision for\t the\nsecuring  the right....to education....\" Although a  citizen\ncannot enforce the directive principles contained in Chapter\nIV  of\tthe Constitution but these were not intended  to  be\nmere pious declarations. [667H]\n     1.03.   Without  making  \"right  to  education\"   under\nArticle\t 41  of the Constitution a reality  the\t fundamental\nrights\tunder Chapter III shall remain beyond the  reach  of\nlarge majority which is illiterate. [668E]\n     1.04.    The  \"right  to  education\",   therefore,\t  is\nconcomitant  to the fundamental rights enshrined under\tPart\nIII of the Constitution. The State is under a constitutional\nmandate\t to provide educational institutions at\t all  levels\nfor   the   benefit  of\t the   citizens.   The\t educational\ninstitutions  must  function to the best  advantage  of\t the\ncitizens.   Opportunity\t to  acquire  education\t cannot\t  be\nconfined to the richer section of the society. [670A]\n     1.05.   Every citizen has a `right to education'  under\nthe  Constitution.  The\t State is  under  an  obligation  to\nestablish educational institutions to enable the citizens to\nenjoy the said right. The State may discharge its obligation\nthrough\t  state-owned\tor   state-recognised\t educational\ninstitutions.  When the State Government grants\t recognition\nto the private educational institutions it creates an agency\nto  fulfil  its\t obligation  under  the\t Constitution.\t The\nstudents are given admission to the educational institutions\n- whether state-owned or state-recognised in recognition  of\ntheir\n\t\t\t\t\t\t       661\n`right'\t to   education' under\tthe  Constitution.  Charging\ncapitation fee in consideration of admission to\t educational\ninstitutions,  is  a patent denial of a citizen's  right  to\neducation under the Constitution. [672C-E]\n     1.06.   Capitation\t fee  is nothing  but  a  price\t for\nselling\t education.  The  concept  of  \"teaching  shops\"  is\ncontrary   to  the  constitutional  scheme  and\t is   wholly\nabhorrent to the Indian culture and heritage. [670C]\n     1.07.   \"Right to life\" is the  compendious  expression\nfor  all those rights which the Court must  enforce  because\nthey  are  basic  to the dignified  enjoyment  of  life.  It\nextends to the full range of conduct which the individual is\nfree  to pursue. The right to education flows directly\tfrom\nright  to life. The right to life under Article 21  and\t the\ndignity\t of   an individual cannot be assured unless  it  is\naccompanied by the right to education. The State  Government\nis  under  an  obligation  to  make  endeavour\tto   provide\neducational  facilities at all levels to its citizens.\t[669\nF-G]\n     1.08.    Capitation  fee  makes  the  availability\t  of\neducation beyond the reach of the poor. The State action  in\npermitting capitation fee to be charged by  State-recognised\neducational  institutions  is wholly arbitrary and  as\tsuch\nviolative of Article 14 of the Constitution of India [672G]\n     1.09    The capitation fee brings to the fore  a  clear\nclass bias. It enable the rich to take admission whereas the\npoor  has  to withdraw due to financial\t inability.  A\tpoor\nstudent\t with better merit cannot get admission\t because  he\nhas  no money whereas the rich can purchase  the  admission.\nSuch  a\t treatment  is\tpatently  unreasonably,\t unfair\t and\nunjust.\t There is, therefore, no escape from the  conclusion\nthat   charging\t of  capitation\t fee  in  consideration\t  of\nadmissions  to educational institutions is wholly  arbitrary\nand as such infracts Article 14 of the Constitution. [673 F-\nG]\n     Francis  Coralie  Mullin v.  The  Administrator,  Union\nTerritory  of Delhi,<\/a> [1981] 2 SCR 516; Bandhua Mukti  Morcha\nv. Union of India and Ors.,<\/a> [1984] 2 SCR 67; E.P. Royappa v.\nState  of  Tamil  Nadu and Anr.,<\/a> [1974] 2  SCR\t348;  Maneka\nGandhi\tv. Union of India,<\/a> [1978] 2 SCR 621; Ramana  Dayaram\nShetty\tv. The International Airport Authority of India\t and\nOrs.,<\/a>  [1979]  3 SCR 1014; Ajay Hasia etc. v.  Khalid  Mujib\nSehravardi  and Ors. etc., [1981] 2 SCR 79 and\tDr.  Pradeep\nJain  etc.  v. Union of India Ors. etc., [1984] 3  SCR\t942,\nreferred to.\n\t\t\t\t\t\t       662\n     D.P.  Joshi v. The State of Madhya Bharat and<\/a>  another,\n[1955] SCR 1215, distinguished.\n     Dr. Ambedkar - C.A.D. Vol. VIII P.476; IMA\t Resolutions\nof  India Medical Conference held at Cuttak on December\t 28-\n30, 1980; Presidential Address of Dr. K.S. Chugh,  Chairman,\nDepartment  of\tMedicine and Head Department  of  Nephrology\nPastgraduate  Institute\t of Medical Education  and  Reseach,\nChandigarh  delivered  on  17.1.1992  at  the  47th   Annual\nConference  of the Association of Physicians in India,\theld\nat Patna, referred to.\n     2.\t     The    Karnataka\t Educational\tInstitutions\n(prohibition  of Capitation Fee) Act, 1984 has been  brought\ninto  existence by the Karnataka State Legislature with\t the\nobject of effectively curbing the evil practice of collecing\ncapitation  fee for admitting students into the\t educational\ninstitutions in the State of Karnataka. The preamble to\t the\nAct which makes the object clear. [679F]\n     3.01.\tThe  State  Government\tin  fulfilling\t its\nobligation   under  the\t Constitution  to  provide   medical\neducation  to the citizens has fixed Rs.2,000 per  annum  as\ntuition fee for the students selected on merit for admission\nto the medical colleges and also against \"Government  seats\"\nin private medical colleges. Therefore, the tuition fee by a\nstudent\t admitted  to the private medical  college  is\tonly\nRs.2,000  per  annum. The seats other than  the\t \"Government\nseats\"\twhich  are to be filled from outside  Karnataka\t the\nmanagement  has been given free hand where the\tcriteria  of\nmerit  is  not applicable and those who can  afford  to\t pay\nRs.60,000 per annum are considered at the discretion of\t the\nmanagement. [680 F-H]\n     3.02.\tIf the State Government fixes  Rs.2,000\t per\nannum  as  the tuition fee in government  colleges  and\t for\n\"Government  seats\" in private medical colleges then  it  is\nthe  State-responsibility  to see that any  private  college\nwhich  has  been set up with Government\t permission  and  is\nbeing  run  with Government recognition is  prohibited\tfrom\ncharging  more\tthan Rs.2,000 from any student\twho  may  be\nresident  of  any part of India. When the  State  Government\npermits\t  a  private  medical  college\tto  be\tset-up\t and\nrecognises its curriculum and degrees, then the said college\nis  performing a function which under the  Constitution\t has\nbeen assigned to the State Government. [681A]\n     3.03.\t Capitation  fee  in  any  form\t cannot\t  be\nsustained  in the eyes of law. The only method of  admission\nto the medical colleges in consonance\n\t\t\t\t\t\t       663\nwith  fair  play and equity is by ways of  merit  and  merit\nalone. Charging of capitation fee by the private educational\ninstitutions  as  a consideration for  admission  is  wholly\nillegal and cannot be permitted. [674 B-C]\n     3.04.\tRs.60,000 per annum permitted to be  charged\nfrom Indian students from outside Karnataka in Para 1(d)  of\nthe notification is not tuition fee but in fact a capitation\nfee  and  as such cannot be sustained and is  liable  to  be\nstruck down. [681C]\n     3.05.\tWhat is provided is paras 1 (d) and 1(c)  of\nthe  impugned notification dated June 5, 1989 is  capitation\nfee  and  not  a tuition fee. It has to\t be  held  that\t the\nnotification  is  beyond the scope of the  Act\trather\tgoes\ncontrary  to Section 3 of the Act and as such has to be\t set\naside.\tIt  is not permissible in law  for  any\t educational\ninstitution to charge capitation fee as a consideration\t for\nadmission to the said institution. [681E]\n\n\n\nJUDGMENT:\n<\/pre>\n
     ORIGINAL  JURISDICTION : Writ petition (Civil) No.\t 456
\nof 1991.\n<\/p>\n
     (Under Article 32 of the Constitution on India).
\n     Vijay Pandia  and R. Satish for the Petitioner.
\n     Santosh  Hegde,  R. Jagannatha Gouley, M.K.  Dua,\tK.H.
\nNobin Singh, Manoj Sarup, C.S. Vaidyanathan, K.V. Mohan, Ms.
\nAnita Lalit and M. Veerappa for the Respondents.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     KULDIP SINGH. J. The Karnataka State Legislature,\twith
\nthe  object  of\t eliminating  the  practice  of\t  collecting
\ncapitation  fee\t for  admitting\t students  into\t educational
\ninstitutions, enacted the Karnataka Educational Institutions
\n(Prohibition of Capitation Fee) Act, 1984 (the Act). The Act
\nwhich replaces the Karnatatak Ordinance No. 14 of 1983\tcame
\ninto  force  with effect from July 11, 1983.  Purporting  to
\nregulate  the  tuition\tfee to be  charged  by\tthe  Private
\nMedical\t Colleges  in the State,  the  Karnataka  Government
\nissued a notification dated June 5, 1989 under Section\t5(1)
\nof  the Act thereby fixing the tuition fee, other  fees\t and
\ndeposits  to  be charged from the students  by\tthe  Private
\nMedical\t Colleges in the State. Under the  notification\t the
\ncandidates  admitted against “Government seats” are  to\t pay
\nRs.2,000  per  year as tuition fee. The\t Karnataka  students
\n(other\tthan those admitted against “Government seats”)\t are
\nto be charged tuition fee not
\n\t\t\t\t\t\t       664<\/span>
\nexceeding  Rs.25,000  per annum. The third  category  is  of
\n“Indian students from outside Karnataka”, from whom  tuition
\nfee  not  exceeding Rs.60,000 per annum is permitted  to  be
\ncharged.\n<\/p>\n
     Miss  Mohini Jain a resident of Meerut was informed  by
\nthe   management  of  Sri  Sriddharatha\t  Medical   College,
\nAgalokote,  Tumkur in the State of Karnataka that she  could
\nbe  admitted  to the MBBS course in the\t session  commencing
\nFebruary\/March\t1991.  According to the management  she\t was
\nasked to deposit Rs.60,000 as the tuition fee for the  first
\nyear and furnish a bank guarantee in respect of the fee\t for
\nthe  remaining\tyears of the MBBS course.  The\tpetitioner’s
\nfather informed the management that it was beyond his  means
\nto  pay\t the  exorbitant annual fee of Rs.60,000  and  as  a
\nconsequence she was denied admission to the medical college.
\nMohini\tJain  has  alleged that the  management\t demanded  a
\nfurther\t capitation fee of repees four and a half lakhs\t but
\nthe management\thas vehemently denied the same.\n<\/p>\n
     In\t this petition under Article 32 of the\tConstitution
\nof India Miss Mohini Jain has challenged the notification of
\nthe  Karnataka\tGovernment permitting  the  Private  Medical
\nColleges  in  the State of Karnataka  to  charge  exorbitant
\ntuition fees from the students other than those admitted  to
\nthe “Government seats”.\n<\/p>\n
     Mr.  Santosh  Hedge learned counsel appearing  for\t the
\nmedical\t college  respondent No. 3 has\tcontended  that\t the
\nstudents from whom higher tuition fee is charged belong to a
\ndifferent class. According to him those who are admitted  to
\nthe  “Government  seats” are meritorious and  the  remaining
\nnon-meritorious. He states that classification of condidates
\ninto  those who possess merit and those who do\tnot  possess
\nmerit  is a valid classification and as such   the  college-
\nmanagement is within its right to charge more fee from those
\nwho do not possess merit. He further states that the  object
\nsought\tto  be\tachieved by the said  classification  is  to
\ncollect\t money to meet the expenses incurred by the  college
\nin  providing  medical education to the students.  Mr.\tC.S.
\nVaidyanathan,  learned counsel appearing for the  intervener
\nKarnataka  Private Medical Colleges Association\t has  argued
\nthat the Private Medical Colleges in the State of  Karnataka
\ndo not receive any financial aid from either the Central  or
\nthe  State Government. According to him the Private  Medical
\nColleges  incur about Rs.5 lakhs per student as\t expenditure
\nfor a 5 year MBBS course. 40% of the seats in these
\n\t\t\t\t\t\t       665<\/span>
\ncolleges are set part as “Government seats” to be filled  by
\nthe  Government. The students selected and admitted  against
\nGovernment seats pay only Rs.2,000 perannum as such the rest
\nof  the\t burden\t falls on those\t who  are  admitted  against
\nmanagement quota. He, therefore, contended that the  tuition
\nfee  is\t not excessive and as such there is no\tquestion  of
\nmaking\tany  profit by the Private Medical Colleges  in\t the
\nState  of  Karnataka. Mr. Hegde and  Mr.  Vaidyanathan\thave
\nvehemently  contended  that  in order  to  run\tthe  medical
\ncolleges  the  managements  are justified  in  charging\t the
\ncapitation fee. According to them, apart from the act, there
\nis  no provision under the Constitution or under  any  other
\nlaw  which forbids the charging of capitation  fee.  Finaliy
\nthey   have relied upon the judgment of this Court  in\tD.P.
\nJoshi v. The State of Madhya Bharat, and<\/a> another [1955]\t SCR
\n1215.\n<\/p>\n
     After hearing learned counsel for the parties and\talso
\nperusing  the  written\targuments  submitted  by  them\t the
\nfollowing  points arise\t for our consideration in this\twrit
\npetition:\n<\/p>\n
     (1)  Is there a `right to education’ guaranteed to\t the
\npeople\tof  India under the Constitution? If  so,  does\t the
\nconcept of `capitation fee’ infracts the same?\n<\/p>\n
     (2)  Whether  the\tcharging  of  capitation   fee\t in
\nconsideration  of admissions to educational institutions  is
\narbitrary, unfair, unjust and as such violates the  equality
\nclause contained in Article 14 of the Constitution?\n<\/p>\n
     (3)  Whether  the impugned\t notification  permits\tthe
\nPrivate\t Medical  Colleges to charge capitation fee  in\t the
\nguise of regulating fees under the Act?\n<\/p>\n
     (4)   Whether  the\t notification is  violative  of\t the
\nprovisions  of the Act which in specific terms prohibit\t the
\ncharging of capitation fee by any educational institution in
\nthe State of Karnataka?\n<\/p>\n
     In\t order to appreciate the first point posed by us  it
\nis   necessary\tto  refer  to  various\tprovisions  of\t the
\nConstitution  of India. The preamble promises to  secure  to
\nall  citizens  of  India  “Justice,  social,  economic\t and
\npolitical”  “liberty of thought, expression,  belief,  faith
\nand worship”. It further provides “equality of status and of
\nopportunity” and assures dignity of the individual. Articles
\n21,  38,  39(a)\t (f),  41 and 45  of  the  Constitution\t are
\nreproduced hereunder:\n<\/p>\n
\t\t\t\t\t\t       666<\/span><\/p>\n
\t “21. Protection of life and  personal\tliberty.-No
\n\t person\t shall be deprived of his life\tor  personal
\n\t liberty  except according to procedure\t established
\n\t by law.”\n<\/p>\n
\t “38.  State  to  secure  a  social  order  for\t the
\n\t promotion  of walfare of the people.-(1) The  State
\n\t shall\tstrive to promote the Welfare of the  people
\n\t by securing and protecting as effectively as it may
\n\t a  social order in which justice, social,  economic
\n\t and political, shall inform all the institutions of
\n\t the national life.\n<\/p>\n
\t (2)  The  State  shall, in  particular,  strive  to
\n\t minimise the inequalities in income, and  endeavour
\n\t to eliminate inequalities in status, facilities and
\n\t opportunities,\t not  only amongst  individuals\t but
\n\t also amongst groups of people residing in different
\n\t areas or engaged in different vocations.”
\n\t “39. Certain principles of policy to be followed by
\n\t the  state.-The State shall, in particular,  direct
\n\t its policy towards securing-\n<\/p>\n
\t (a) that the citizens, men and women equally,\thave
\n\t the right to an adquate means to livelihood;\n<\/p>\n
\t (f)  that  children  are  given  opportunities\t and
\n\t facilities  to develop in a hearlthy manner and  in
\n\t conditions   of  freedom  and\tdignity\t  and\tthat
\n\t childhood   and   youth   are\t protected   against
\n\t exploitation\tand  against  moral   and   material
\n\t abandonment.”\n<\/p>\n
\t “41.  Right  to work, to education  and  to  public
\n\t assistance  in\t certain cases.-  The  State  shall,
\n\t within\t the  limits of its  economic  capacity\t and
\n\t development, make effective provision for  securing
\n\t the  right  to\t work, to education  and  to  public
\n\t assistance  in\t cases\tof  unemployment,  old\tage,
\n\t sickness  and\tdisablement, and in other  cases  of
\n\t underserved want.”\n<\/p>\n
\t “45.  Provision for free and  compulsory  education
\n\t for   children.-  The\tState  shall  endeavour\t  to
\n\t provide,  within  a period to ten  years  from\t the
\n\t commencement  of  this Constitution, for  free\t and
\n\t compulsory  education for all children\t until\tthey
\n\t complete the age of fourteen years.”\n<\/p>\n
\t\t\t\t\t\t       667<\/span><\/p>\n
     It is no doubt correct that “right to education”as such
\nhas not been guaranteed as fundamental right under Part\t III
\nof the Constitution but reading the above quoted  provisions
\ncomulatively  it  becomes  clear that  the  framers  of\t the
\nConstitution  made  it obligatory for the State\t to  provide
\neducation for its citizens.\n<\/p>\n
     The  preamble  promises  to  secure  justice   “social,
\neconomic and political” for the citizen. A peculiar  feature
\nof  the Indian Constitution is that it combines\t social\t and
\neconomic  rights along with political and justiciable  legal
\nrights.\t The preamble embodies the goal which the State\t has
\nto achieve in order to establish social justice and to\tmake
\nthe  masses  free  in the positive sense.  The\tsecuring  of
\nsocial\tjustice has been specifically enjoined an object  of
\nthe  State  under Article 38 of the  Constitution.  Can\t the
\nobjectice  which has been so prominently pronounced  in\t the
\npreamble  and  Article 38 of the  Constitution\tbe  achieved
\nwithout\t providing  education  to  the\tlarge  majority\t  of
\ncitizens who are illiterate. The objectives flowing from the
\npreamble cannot be achieved and shall remain on paper unless
\nthe  people in this country are educated. The three  pronged
\njustice promised by the preamble is only an illusion to\t the
\nteaming-million\t who  are  illiterate. It  is  only  is\t the
\neducation which equips a citizen to participate in achieving
\nthe  objectives\t enshrined  in the  preamble.  The  preamble
\nfurther\t  assures  the\tdignity\t of  the   individual.\t The
\nConstitution  seeks to achieve this object  by\tguaranteeing
\nfundamental  rights to each individual which he can  enforce
\nthrough court of law if necessary. The directive  principles
\nin  Part  IV  of the Constitution are  also  with  the\tsame
\nobjective. The dignity of man is inviolable. It is the\tduty
\nof  the\t State\tto  respect and\t protect  the  same.  It  is
\nprimarilty the education which brings-forth the dignity of a
\nman.  The framers of the Constitution were aware  that\tmore
\nthan  seventy  per cent of the people, to  whom\t they\twere
\ngiving the Constitution of India, were illiterate. They were
\nalso  hopeful that within a period of ten  years  illiteracy
\nwould  be wiped out from the country. It was with that\thope
\nthat  Articles 41 and 45 were brought in Chapter IV  of\t the
\nConstitution.  An  individual  cannot be  assured  of  human
\ndignity unless his personality is developed and the only way
\nto  do\tthat is to educate him. This is\t why  the  Universal
\nDeclaration  of\t Human Rights,\t1948  emphasises  “Education
\nshall  be  directed  to the full development  of  the  human
\npersonality…” Article 41 in Chapter IV of the Constitution
\nrecognises  an\tindividual’s right “to education”.  It\tsays
\nthat  “the  State shall, within the limits of  its  economic
\ncapacity  and  development,  make  effective  provision\t for
\nsecuring the right…..to
\n\t\t\t\t\t\t       668<\/span>
\neducation”. Although a citizen cannot enforce the  directive
\nprinciples  contained in Chapter IV of the Constitution\t but
\nthese  were not intended to be mere pious  declarations.  We
\nmay quote the words of Dr. Ambedkar in that respect:
\n\t “In  enacting\tthis Part of the  Constitution,\t the
\n\t Assembly is giving certain directions to the future
\n\t legislature  and  the future executive to  show  in
\n\t what  manner they are to exercise  the\t legislature
\n\t and the executive power  they will have. Surely  it
\n\t is  not  the intention to introduce  in  this\tPart
\n\t these principles as mere pious declarations. It  is
\n\t the  intention of the Assembly that in future\tboth
\n\t the legislature and the executive should not merely
\n\t pay  lipservice to these principles but  that\tthey
\n\t should\t be made the basis  of all  legislative\t and
\n\t executive action that they may be taking  hereafter
\n\t in the matter of the governance of the country”
\n\t (C.A.D. Vol.VII p.476.)
\n     The  directive principles which are fundamental in\t the
\ngovernance  of\tthe  country cannot  be\t isolated  from\t the
\nfundamental   rights  guaranteed  under\t Part\tIII.   These
\nprinciples have to be read into the fundamental rights. Both
\nare  supplementary  to\teach other. The\t State\tis  under  a
\nconstitutional\tmandate\t to create conditions in  which\t the
\nfundamental rights guaranteed to the individuals under\tPart
\nIII  could  be\tenjoyed by all.\t Without  making  “right  to
\neducation”  under Article 41 of the Constitution  a  reality
\nthe fundamental rights under Chapter III shall remain beyond
\nthe reach of large majority which is illiterate.\n<\/p>\n
     This   Court   has\t interpreted  Article  21   of\t the
\nConstitution  of  India to include the right  to  live\twith
\nhuman  dignity and all that goes along with it.\t In  Francis
\nCoralie\t Mullin\t v. The Administrator,\tUnion  Territory  of
\nDelhi,<\/a>\t[1981]2\t SCR 516, this Court elaborating  the  right
\nguaranteed under Article 21 of the Constitution of the India
\nheld as under:\n<\/p>\n
\t “But the question which arises is whether the right
\n\t to  life is limited only to protection of  limb  or
\n\t faculty or does it go further and embrace something
\n\t more. We think that the right to life includes\t the
\n\t right to live with human dignity and all that\tgoes
\n\t along with it, namely the bare necessaries of life
\n\t such  as adequate nutrition, clothing\tand  shelter
\n\t and facilities for reading, writing and  expression
\n\t oneself in diverse forms, freely
\n\t\t\t\t\t\t       669<\/span>
\n\t moving about and mixing and commingling with fellow
\n\t human beings. Of course, the magnitude and  content
\n\t of  the components of this right would depend\tupon
\n\t the  extent  of  the economic\tdevelopment  of\t the
\n\t country,  but it must, in any view of\tthe  matter,
\n\t include the right to the basic necessities of\tlife
\n\t and  also the right to carry on such  funtions\t and
\n\t activities   as   constitute\tthe   bare   minimum
\n\t expression of the human-self.”\n<\/p>\n
     In Bandhua Mukti Morcha v. Union of India Ors.,<\/a>  [1984]
\n2 SCR 67, this Court held as under”-\n<\/p>\n
\t “This right to live with human dignity enshrined in
\n\t Article  21  derives  its  life  breath  from\t the
\n\t Directive   principles\t  of   State   Policy\t and
\n\t particularly clauses (e) and (f) of Article 39\t and
\n\t Articles 41 and 42 and at the least, therefore,  it
\n\t must include protection of the health and  strength
\n\t of workers men and women, and of the tender age  of
\n\t children    against   abuse,\topportunities\t and
\n\t facilities  for  children to develop in  a  healthy
\n\t manner\t and in conditions of freedom  and  dignity,
\n\t educational facilities, just and humane  conditions
\n\t of work and maternity relief. These are the minimum
\n\t requirements which must exist in order to enable  a
\n\t person\t to live with human dignity and no  State  –
\n\t neither  the  Central\tGovernment  nor\t any   State
\n\t Government – has the right to take any action which
\n\t will  deprive\ta person of the enjoyment  of  these
\n\t basic essential.”\n<\/p>\n
     “Right  to life” is the compendious expression for\t all
\nthose rights which the Courts must enforce because they\t are
\nbasic to the dignified enjoyment of life. It extends to\t the
\nfull  range  of\t conduct which the  individual\tis  free  to
\npursue.\t The  right to education fiows directly\t from  right
\nto life. The right to life under Article 21  and the dignity
\nof an individual cannot be assured unless it is\t accompanied
\nby the right to education. The State Government\t is under an
\nobligation   to\t make  endeavour  to   provide\t educational
\nfacilities at all levels to its citizens.\n<\/p>\n
     The fundamental rights guaranteed under Part III of the
\nConstitution  of  India including the right  to\t freedom  of
\nspeech\tand  expression and other rights  under\t Article  19
\ncannot be appreciated and fully enjoyed unless a citizen  is
\neducated and is conscious of his individualistic dignity.\n<\/p>\n
\t\t\t\t\t\t       670<\/span><\/p>\n
     The “right to education”, therefore, is concomitant  to
\nthe  fundamental  rights  enshrined under Part\tIII  of\t the
\nConstitution. The State is under a constitutional-mandate to
\nprovide\t educational  institutions  at all  levels  for\t the
\nbenefit\t of the citizens. The educational institutions\tmust
\nfunction to the best advantage of the  citizens. Opportunity
\nto  acquire  education\tcannot be  confined  to\t the  richer
\nsection\t of  the  society.  increasing\tdemand\tfor  medical
\neducation has led to the opening of large number of  medical
\ncolleges  by  private persons, groups and  trusts  with\t the
\npermission   and  recognition  of  State  Governments.\t The
\nKarnataka  State  has permitted the opening of\tseveral\t new
\nmedical\t  colleges   under  various   private\tbodies\t and
\norganisations.\tThese institutions are\tcharging  capitation
\nfee  as\t a consideration for admission.\t Capitation  fee  is
\nnothing\t but a price for selling education. The\t concept  of
\n“teaching  shops” is contrary to the  constitutional  scheme
\nand is wholly abhorrent to the Indian culture and  heritage.
\nAs  back as December 1980 the Indian Medical Association  in
\nits  56th  All India Medical Conference held at\t Cuttack  on
\nDecember 28-30, 1980 passed the following resolutions:
\n\t “The  56th All India Medical Conference views\twith
\n\t great\tconcern\t the attitude  of  State  Goverments
\n\t particularly  the State Government of Karnataka  in
\n\t permitting  the  opening of  new  Medical  Colleges
\n\t under\tvarious\t bodies and organisations  in  utter
\n\t disregard   to\t the   recommendations\tof   Medical
\n\t Council of India and urges upon the authorities and
\n\t the  Government  of  Karnataka not  to\t permit\t the
\n\t opening  of  any new medical  college,\t by  private
\n\t bodies.\n<\/p>\n
\t It further condemns the policy of admission on\t the
\n\t basis of capitation fees. This commercialisation of
\n\t medical   education  endangers\t the   lowering\t  of
\n\t standards  of medical education and encourages\t bad
\n\t practice.”\n<\/p>\n
     Dr.  K.S. Chugh, Chairman, Department of  Medicine\t and
\nHead  Department  of Nephrology\t Postgraduate  Institute  of
\nMedical Education and Research Chandigarh, recipient of\t Dr.
\nB.C.  Rai National Award as `eminent medical man for  1991′,
\nin his Presidential Address delivered on January 17, 1992 at
\nthe  4th Annual Conference of the Association of  Physicians
\nin India held at Patna observed as under:
\n\t “In  the  recent past, there has  been\t a  mushroom
\n\t growth of
\n\t\t\t\t\t\t       671<\/span>
\n\t medical  colleges in  our country. At the  time  of
\n\t independence  we  had\t25  medicaal  college  which
\n\t turned out less than 2000 graduates every year.  At
\n\t the  present  time,  there  are  172  )150  already
\n\t functioning  and 22 are being established)  medical
\n\t colleges  with an annual turn over of\tover  20,000
\n\t graduates. The Mudaliar Commission had\t recommended
\n\t a  doctor-population  ratio of 1 :  3500.  We\thave
\n\t already  achieved a ratio of 1 : 2500. If  we\ttake
\n\t into account the practitioners of other systems  of
\n\t medicine  who\tenjoy  pay  scales  and\t  privileges
\n\t comparable  to those of allopathic  doctors,  India
\n\t will  soon  have a doctor-population ratio of\t1  :\n<\/p>\n
\t 500.  Such  over production of\t tehnical  man-power
\n\t from  our  medical  colleges is bound\tto  lead  to
\n\t unemployment  and frustration. Indeed the  unabated
\n\t exodus\t of  our  professional\tcollegues  to  other
\n\t countries  is\ta direct consequence of\t these\tlop-
\n\t sided policies.\n<\/p>\n
\t According  to\tsome estimates. India  has  exported
\n\t human capital worth over 51 billion dollars to\t USA
\n\t alone during 1966-88. Currently about 8000  skilled
\n\t young\tmen and women are leaving the country  every
\n\t year.\tIt is high time a blanket ban is imposed  on
\n\t any  further expansion of medical colleges  in\t our
\n\t country  and a well thought out plan to reduce\t the
\n\t intake into existing institutions is prepared. This
\n\t will  help  to\t improve  the  standard\t of  medical
\n\t education and health care in our country.
\n\t It  is\t common\t knowlege that\tmany  of  the  newly
\n\t started  medical  colleges charge  huge  capitation
\n\t fees.\tBesides, most of these are  poorly  equipped
\n\t and  provide  scanty facilities  for\ttraining  of
\n\t students.  At best such institutions can be  termed
\n\t as  “Teaching\tShops”. Experience  has\t shown\tthat
\n\t these colleges admit students who have been  unable
\n\t to  gain admission in recognised medical  colleges.
\n\t The  result  is  a back  door\tentry  into  medical
\n\t training  obtained  solely by the  ability  to\t pay
\n\t one’s\tway through. Even the advice of the  Medical
\n\t Council  of India is sidelined in many such  cases.
\n\t The  Government must resist all pressures to  allow
\n\t this  practice\t to continue. Admission\t to  medical
\n\t colleges  bought by paying capitation fees must  be
\n\t stepped    forthwith\tand   all   such    existing
\n\t institutions  required\t to strictly adhere  to\t the
\n\t Medical Council of India rules.\n<\/p>\n
\t\t\t\t\t\t       672<\/span><\/p>\n
\t In the words of my predecessor Dr. V. Parameshvara,
\n\t “The  need of the hour is better doctors than\tmore
\n\t doctors,   better   health  education\t than\tmore
\n\t education, better health care than more health care
\n\t delivery.”\n<\/p>\n
     The  indian  Medical Association,\tthe  Association  of
\nPhysicians   of\t  India\t and  various\tother\tbodies\t and
\norganisations  representing the medical profession  in\tthis
\ncountry have unanimously condemned the practice of  charging
\ncapitation  fee\t as  a consideration for  admission  to\t the
\nmedical college.\n<\/p>\n
     We\t hold that every citizen has a `right to  education’
\nunder the Constitution. The State is under an obligation  to
\nestablished educational institutions to enable the  citizens
\nto  enjoy  the\tsaid  right. The  State\t may  discharge\t its
\nobligation    through\tstate-owned   or    state-recognised
\neducational  institutions. When the State Government  grants
\nrecognition  to\t the  private  educational  institutions  it
\ncreates\t an  agency  to\t fulfil\t its  obligation  under\t the
\nConstitution.  The  students  are  givin  admission  to\t the
\neducational   institutions-whether  state-owned\t or   state-
\nrecongnised-in\trecognition  of their `right  to  education’
\nunder\tthe   Constitution.  Charging  capitation   fee\t  in
\nconsideration of admission to educational institutions, is a
\npatent\tdenial of a citizen’s right to education  under\t the
\nConstitution.\n<\/p>\n
     Indian  civilsation recognises education as one of\t the
\npious  obligations  of the human society. To  establish\t and
\nadminister   educational   institutions\t is   considered   a
\nreligious  and\tcharitable object. Education  in  India\t has
\nnever  been a commodity for sale. Looking at  the  economic-
\nfront,\teven forty five years after achieving  independence,
\nthirty per cent of the population is living below  proverty-
\nline and the bulk of the remaining population is  struggling
\nfor   existence\t under\tpoverty-conditions.   The   preamble
\npromises  and the directive principles are a mandate to\t the
\nstate to eradicate poverty so that the poor of this  country
\ncan   enjoy   the  right  to  life  guaranteed\t under\t the
\nConstitution. The state action or inaction which defeats the
\nconstitutional-mandate\tis  per se arbitary  and  cannot  be
\nsustained.   Capitation\t fee  makes  the   availability\t  of
\neducation beyond the reach of the poor. The state action  in
\npermitting capitation fee to be charged by  state-recognised
\neducational  institutions  is wholly arbitrary and  as\tsuch
\nviolative of Article 14 of the Constitution of India. During
\nthe last two decades the horizon of equality clause has been
\nwidened as a result of this Court’s judgments.\n<\/p>\n
\t\t\t\t\t\t       673<\/span><\/p>\n
Earlier the violation of Article 14 was judged on the twin t
\nests of classification and nexus. This Court in E.P. Royappa
\nv.  State of Tamil Nadu and Anr.,<\/a> [1974] 2 SCR 348 gave\t new
\ndimension to Article 14 in the following words:
\n\t “Equality  is a dynamic concept with  many  aspects
\n\t and  dimensions and it cannot be “cribbed,  cabined
\n\t and  confined” within traditional  and\t doctrinaire
\n\t limits. From a positivistic point of view, equality
\n\t is  antithetic to arbitrariness. In  fact  equality
\n\t and   arbitrariness are sworn enemies; one  belongs
\n\t to  the rule of law in a republic while the  other,
\n\t to  the  whim and caprice of an  absolute  monarch.
\n\t Where an act is arbitrary it is implicit in it that
\n\t it is unequal both according to political logic and
\n\t constitutional\t law and is therefore  violative  of
\n\t Article 14.”\n<\/p>\n
     This Court in Maneka Gandhi v. Union of India<\/a> [1978]  2
\nSCR  621 Ramana Dayaram Shetty v. The International  Airport
\nAuthority  of  India and Ors.,<\/a> [1979] 3 SCr  1014  and\tAjay
\nHasia etc. v. Khalid Mujib Sehravardi and Ors. etc.,  [1981]
\n2  SCR 79 following E.P. Royappa authoritatiovely held\tthat
\nequality is directly opposed to arbitrariness. In Ajay Hasis
\nthis Court observed as under :\n<\/p>\n
\t “Unfortunately,   in  the  early  stages   of\t the
\n\t evolution  of\tour constitutional law,\t Article  14
\n\t came\tto  be\tidentified  with  the  doctrine\t  of
\n\t classification… In Royappa v. State of Tamil Nadu<\/a>
\n\t this Court laid bare a new dimension of Article  14
\n\t and  pointed  out  that  that\tArticle\t has  highly
\n\t activist  magnitude  and it  embodies\ta  guarantee
\n\t against arbitrariness…..”\n<\/p>\n
     The  capitation  fee brings to the fore a\tclear  class
\nbias. It enable the rich to take admission whereas the\tpoor
\nhas  to withdraw dur to financial inability. A poor  student
\nwith  better  merit canoot get admission because he  has  no
\nmoney  whereas the rich can purchase the admission.  Such  a
\ntreatment is patently unreasonable, unfair and unjust. There
\nis,  therefore, no escape from the conclusion that  charging
\nof   capitation\t fee  in  consideration\t of  admissions\t  to
\neducational  institutions  is wholly arbitrary and  as\tsuch
\ninfracts Article 14 of the Constitution.\n<\/p>\n
     We do not agree with Mr. Hegde that the management\t has
\na  right  to admit non-meritorious  candidates\tby  charging
\ncapitation fee as a con-\n<\/p>\n
\t\t\t\t\t\t       674<\/span><\/p>\n
sideration.  This practice strikes at the very root  of\t the
\nconstitutional\t scheme\t  and\tour   educational    system.
\nRestricting   admission\t  to   non-meritorious\t  candidates
\nbelonging  to the richer section of society and denying\t the
\nsame  to  poor meritorious is wholly arbitrary\tagainst\t the
\nconstitutional\t scheme\t and  as  such\tcannot\tbe   legally
\npermitted. Capitation fee in any form cannot be sustained in
\nthe eyes of law. The only method of admission to the medical
\ncolleges  in consonance with the fair play and equity is  by
\nways of merit and merit alone.\n<\/p>\n
     We,  therefore,  hold  and\t declare  that\tcharging  of
\ncapitation fee by the private educational institutions as  a
\nconsideration for admission is wholly illegal and cannot  be
\npermitted.\n<\/p>\n
     Mr.  Santosh Hegde and Mr.Vaidyanathan learned  counsel
\nfor  respondent 3 and the interverner have relied upon\tD.P.
\nJoshi  v. The State of Madhya Bharat and Anr.,<\/a>\t(supra)\t for
\nthe  proposition  that\tclassification\tof  candidates\t for
\nadmission  to medical colleges on the basis of residence  is
\npermissible.  In D.P. Joshi’s case a resident of  Delhi\t was
\nadmitted  as  a student of Mahatma  Gandhi  Memorial  Medial
\nCellege Indore which was run by the State of Madhya  Bharat.
\nHis  complaint\twas  that the rules in\tforce  in  the\tsaid
\ninstitution  discriminated  in the matter  of  fees  between
\nstudents who were  residents of Madhya Bharat and those\t who
\nwere not,  and that the latter had to pay in addition to the
\ntuition fee and charges payable by all the students a sum of
\nRs.1500 per annum as capitation fee and that the charging of
\nsuch a fee from the students coming out of Madhya Bharat was
\nin   contravention   of\t Articles  14  and  15(1)   of\t the
\nConstitution  of India. In D.P. Joshi’s case the only  point
\nfor   decision\t before\t  this\t Court\t was   whether\t the
\nclassification\ton  the ground of residence  was  justified.
\nThis  court  while  dealing with the  question\tobserved  as
\nunder:\n<\/p>\n
\t “The  impugned\t rule divides,\tas  already  stated,
\n\t self-nominees\tinto two groups, those who are\tbona
\n\t fide  resident of Madhya Bharat and those  who\t are
\n\t not,  and while it imposes a capitation fee on\t the
\n\t latter,  it  exempts the former  from\tthe  payment
\n\t thereof. If thus proceeds on a classification based
\n\t on  residence within the State, and the only  point
\n\t for\tdecision   is\twhether\t  the\tground\t  of
\n\t classification has a fair and substantial  relation
\n\t to the purpose of the law, or whether it is  purely
\n\t arbitrary and
\n\t\t\t\t\t\t       675<\/span>
\n\t fanmciful.\n<\/p>\n
\t  The  object of the classification  underlying\t the
\n\t impugned  rule was clearly to help to\tsome  extent
\n\t students who are residents of Madhya Bharat in\t the
\n\t prosecution  of  their studies, and  it  cannot  be
\n\t disputed that it is quite a legitimate and laudable
\n\t objective for a State to encourage education within
\n\t its borders.  Education is a State subject, and one
\n\t of  the directive principles declared in Part IV of
\n\t the  Constitution  is that the\t State\tshould\tmake
\n\t effective  provisions\tfor  education\twithin\t the
\n\t limits\t of  its economy.  (vide article  41).\t The
\n\t State\thas  to contribute for the  upkeep  and\t the
\n\t running of its educational institutions.  We are in
\n\t this petition concerned with a Medical College, and
\n\t it  is\t well-known that  it  requires\tconsiderable
\n\t finance  to maintain such an institution.   If\t the
\n\t State has to spend money on it, is it\tunreasonable
\n\t that it should so order the educational system that
\n\t the  advantage of it would to some extent at  least
\n\t enure\tfor the benefit of the State?  A  concession
\n\t given\tto the residents of the State in the  matter
\n\t of fees is obviously calculated to serve that\tend,
\n\t as  presumably some of\t them might,  after  passing
\n\t out  of  the College, settle  down as\tdoctors\t and
\n\t serve\t  the\tneeds\tof   the   locality.\t The
\n\t classification is thus based on a ground which\t has
\n\t a reasonable relation to the subject-matter of\t the
\n\t legislation,  and  is in consequence  not  open  to
\n\t attack.  It has been held in the State of Punjab v.
\n\t Ajaib\tSingh and Anr.,<\/a> that a classification  might
\n\t validly  be made on a geographical basis.   Such  a
\n\t classification\t  would\t  be  eminently\t  just\t and
\n\t reasonable, where it relates to education which  is
\n\t the\tconcern\t  primarily  of\t the   State.\t The
\n\t contention,  therefore,  that\tthe  rule   imposing
\n\t capitation  fee is in contravention of\t article  14
\n\t must be rejected.”\n<\/p>\n
     D.P.  Joshi’s case is an authority for the\t proposition
\nthat  classification  on  the  ground  of  residence  is   a
\njustifiable  classification under Articles 14 and  15(1)  of
\nthe Constitution of India.  The question that capitation fee
\nas  a consideration for admission is not  permissible  under
\nthe  scheme  of\t the constitution, was\tneither\t raised\t nor
\nadverted to by this Court.  The imposition of capitation fee
\nwas also not questioned on the ground of arbitrariness.\t The
\nonly question raised before the Court was that the Madhya
\n\t\t\t\t\t\t       676<\/span>
\nBharat\tstudents could not be exempted from the\t payment  of
\ncapitation   fee.   It\tis  settled  by\t this\tCourt\tthat
\nclassification\ton  the\t ground\t of  residence\tis  a  valid
\nclassification.\t Subsequently this Court in Dr. Pradeep Jain
\netc.  v.  Union\t of India and Ors. etc., [1984]\t 3  SCR\t 942
\nreiterated  the\t legal\tposition on  this  point.   we\tare,
\ntherefore, of the view that D.P. Joshi’s case does not\tgive
\nus ary guidance on the points before us.\n<\/p>\n
     To appreciate the third point it is necessary to notice
\nthe  relevant  provisions of the Act and  the  notification.
\nSection 2(b), (e), 3, 4, and 5 of the Act are as under:
\n\t “2(b).\t “Capitation  fee”  means  any\tamount,\t  by
\n\t whatever name called, paid or collected directly or
\n\t indirectly  in excess of the fee  prescribed  under
\n\t section  5,  but  does\t not  include  the   deposit
\n\t specified under the proviso to section 3.\n<\/p>\n
\t (e)  “Government Seats” means such number of  seats
\n\t in such educational institution or class or classes
\n\t of such institutions in the state as the Government
\n\t may, from time to time, specify for being filled up
\n\t by  it in such manner as may be specified by it  by
\n\t general or special order on the basis of merit\t and
\n\t reservation for Scheduled Castes, Scheduled Tribes,
\n\t Backward Classes and such other categories, as\t may
\n\t be specified, by the Government from time to  time,
\n\t without  the requirement of payment  of  capitation
\n\t fee or cash deposit.\n<\/p>\n
\t 3.  Collection\t of  capitation\t fee  prohibited.  –
\n\t Notwithstanding  anything contained in any law\t for
\n\t the time being in force, no capitation fee shall be
\n\t collected  by\tor  on\tbehalf\tof  any\t educational
\n\t institution or by any person who is incharge of  or
\n\t is   reponsible   for\tthe   management   of\tsuch
\n\t institution:\n<\/p>\n
\t Provided…………..\n<\/p>\n
\t 4.   Regulation   of\tAdmission   to\t educational
\n\t institutions  etc.  –\tSubject to  such  rules,  or
\n\t general  or special orders, as may be made  by\t the
\n\t Government in this behalf and any other law for the
\n\t time being in force.\n<\/p>\n
\t (1) (a) the minimum qualification for admission  to
\n\t any  course of study in an educational\t institution
\n\t shall be such as
\n\t\t\t\t\t\t       677<\/span>
\n\t may be specified by –\n<\/p>\n
\t (i) the University, in the case of any course study
\n\t in  an\t educational institution  maintained  by  or
\n\t affiliated to such University:\n<\/p>\n
\t Provided  that the Government may, in the  interest
\n\t of excellence of education, fix any higher  minimum
\n\t qualification for any course of study.\n<\/p>\n
\t (ii) the Government in the case of other courses of
\n\t study in any other educational institution;\n<\/p>\n
\t (b)  the  maximum under of students that  could  be
\n\t admitted  to  a course of study in  an\t educational
\n\t institution  shall be such as may be fixed  by\t the
\n\t Government from time to time;\n<\/p>\n
\t (2)in order to regulate the capitation fee  charged
\n\t or collected during the period specified under\t the
\n\t proviso to section 3, the Government may, from time
\n\t to  time, by general or special order,\t specify  in
\n\t respect of each private educational institution  or
\n\t class or classes of such institutions.\n<\/p>\n
\t (a)  the  number of seats set apart  as  Government
\n\t seats:\n<\/p>\n
\t (b)  the number of seats that may be filled  up  by
\n\t the management of such institution.\n<\/p>\n
\t (i)  from among Karnataka students on the basis  of
\n\t merit, on payment of such cash deposits  refundable
\n\t after\tsuch  number  of  years,  with\tor   without
\n\t interest  as may be specified therein, but  without
\n\t the payment of capitation fee; or\n<\/p>\n
\t (ii) at the discretion:\n<\/p>\n
\t Provided  that\t such  number of  seats\t as  may  be
\n\t specified by the Government but not less tha  fifty
\n\t per  cent of the total number of seats referred  to
\n\t in  clauses (a) and (b) shall be filled from  among
\n\t Karnataka students.\n<\/p>\n
\t Explanation.  –  For the purpose  of  this  section
\n\t Karnataka  students means persons who have  studied
\n\t in  such educational institutions in the  State  of
\n\t Karnataka run or recognised by the
\n\t\t\t\t\t\t  678<\/span>
\n\t Government  and  for such number of  years  as\t the
\n\t Government may specify;\n<\/p>\n
\t (3)  an  educational institution required  to\tfill
\n\t seats in accordance with item (i) of sub-clause (b)
\n\t of  clause  (2) shall form a  committee  to  select
\n\t candidates  for such seats.  A nominee each of\t the
\n\t Government   and  the\tUniversity  to\twhich\tsuch
\n\t educational  institution  is  affiliated  shall  be
\n\t included as members in such committee.\n<\/p>\n
\t 5.  Regulation\t of  fees, etc. – (1)  It  shall  be
\n\t competent  for the Government, by notification,  to
\n\t regulate  the\ttuition\t fee or\t any  other  fee  or
\n\t deposit  or  other amount that may be\treceived  or
\n\t collected  by any educational institution or  class
\n\t of such institutions in respect of any or all class
\n\t or classes of students.\n<\/p>\n
\t (2)  No educational institution shall\tcollect\t any
\n\t fees or amount or accept deposits in excess of\t the
\n\t amounts notified under sub-section (1) or permitted
\n\t under the proviso to section 3.\n<\/p>\n
\t (3)  Every educational institution shall  issue  an
\n\t official  receipt for the fee or capitation fee  or
\n\t deposits or other amount collected by it.
\n\t (4)   All  monies  received  by   any\t educational
\n\t institution  by  way of fee or\t capitation  fee  or
\n\t deposits or other amount shall be deposited in\t the
\n\t account  of the institution, in any Scheduled\tBank
\n\t and   shall  be  applied  and\texpended   for\t the
\n\t improvement of the institution and the\t development
\n\t of  the educational facilities and for\t such  other
\n\t related   purpose  and to such extent and  in\tsuch
\n\t manner\t as  may  be  specified\t by  order  by\t the
\n\t Government.\n<\/p>\n
\t (5)  In  order to carry out the  purposes  of\tsub-
\n\t section   (4),\t the  Government  may  require\t any
\n\t educational institution to submit their programs or
\n\t plans\t of  improvement  and  development  of\t the
\n\t institution for the approval of the Government.
\n     The  relevant  part of the notification dated  June  5,
\n1989  issued by the Karnataka Government under Section 5  of
\nthe Act is reproduced hereunder:\n<\/p>\n
\t\t\t\t\t\t       679<\/span><\/p>\n
\t “In exercise of the powers conferred by sub-section
\n\t (1)  of  Section  5 of\t the  Karnataka\t educational
\n\t Institutions  (Prohibition of Capitation Fee)\tAct,
\n\t 1984,\tthe Government of Karnataka hereby  fix\t the
\n\t Tuition Fee and other fees and deposits that may be
\n\t collected  by the private Medical Colleges  in\t the
\n\t State\twith effect from the academic  year  1989-90
\n\t and until further orders as follows:\n<\/p>\n
\t (a)  Candidates  admitted to  seats  in  Government
\n\t Medical       Colleges shall be charged  a  tuition
\n\t fee  of  Rs.2,000\teach per annum\t(Rupees\t two
\n\t thousand only);\n<\/p>\n
\t (b)\tCandidates admitted against Government seats
\n\t      in\t  Private Medical Colleges shall  be
\n\t      charged  a tuition      fee of  Rs.2,000\teach
\n\t      per  annum  (Rupees two  thousand\t      only).\n<\/p>\n
\t      For  this\t purpose  “Government  seats”  shall
\n\t      mean Government seats as defined by section  2\n<\/p>\n
\t      (e)\t of   the   Karnataka\t Educational
\n\t      Institutions\t (Prohibition of  Capitation
\n\t      Fee) Act, 1984;\n<\/p>\n
\t (c)  Karnataka\t  Students  (other   than   students
\n\t      admitted\t     against Government seats as  at\n<\/p>\n
\t      (b)  above) admitted\tby  Private  Medical
\n\t      Colleges shall be charged\t    tuition fee\t not
\n\t      exceeding\t   Rs.25,000\teach\tper    annum
\n\t      (Rupees Twenty-five thousand only);\n<\/p>\n
\t (d)  Indian   Students\t  from\t outside   Karnataka
\n\t      admitted\tby\t Private  Medical   Colleges
\n\t      shall   be   charged  tuition\t   fee\t not
\n\t      exceeding\t Rs. 60,000 each per  annum  (Rupees
\n\t      Sixty thousand only);\n<\/p>\n
     The  Act  has  been  brought  into\t existence  by\t the
\nKarnataka  State Legislature with the object of\t effectively
\ncurbing\t the evil practice of collecting capitation fee\t for
\nadmitting students into the educational institutions in\t the
\nState of Karnataka.  The preamble to the Act which makes the
\nobject clear is reproduced thereunder
\n\t “An  Act to prohibit the collection  of  capitation
\n\t fee  for admission to educational  institutions  in
\n\t the   State  of  Karnataka  and  matters   relating
\n\t thereto;\n<\/p>\n
\t     Where the practice of collecting capitation fee
\n\t for admit-\n<\/p>\n
\t\t\t\t\t\t       680<\/span><\/p>\n
\t ting  students\t into  educational  institutions  is
\n\t widespread in the State;\n<\/p>\n
\t     And  whereas this undesirable  practice  beside
\n\t contributing  to large scale  commercialisation  of
\n\t education has not been conducive to the maintenance
\n\t of educational standards;\n<\/p>\n
\t     And  whereas  it  is  considered  necessary  to
\n\t effectively  curb  this  evil\tpractice  in  public
\n\t interest by providing for prohibition of collection
\n\t of capitation fee and matters relating thereto;
\n\t    Be it enacted by the Karnataka State Legislature
\n\t in the Thirty-fourth Year of the Republic of  India
\n\t as follows:”\n<\/p>\n
     Section  3\t of  the Act  prohibits\t the  collection  of
\ncapitation  fee\t by any educational institution\t or  by\t any
\nperson\twho    is in charge of or  is  responsible  for\t the
\nmanagement  of\tsuch  institutions.   Contravention  of\t the
\nprovisions of the Act has been made punishable under Section
\n7 of the Act with imprisonment for a term which shall not be
\nless  than three years but shall not exceed seven years\t and
\nwith fine which may extend to five thousand rupees.  Section
\n5  of  the  Act authorises the Government  to  regulate\t the
\ntuition\t fees  by  way\tof  a  notification.  The  Karnataka
\nGovernment have issued a notification under Section 5(1)  of
\nthe  Act wherein the fee charged from Indian  students\tfrom
\noutside\t Karnataka has been fixed not exceeding\t Rs.  60,000
\nper annum.  Whether Rs. 60,000 per annum can be considered a
\ntuition\t fee or it is a capitation fee is the  question\t for
\nour determination.\n<\/p>\n
     The notification fixes Rs.2000 per annum as the tuition
\nfee  for  candidates  admitted to the  seats  in  Government
\nmedical\t colleges  and for the candidates  admitted  against
\n“Government  seats” in private medical colleges.  All  these
\nseats are filled purely on the merit of the candidates.\t  It
\nis thus obvious that the State Government in fulfilling\t its
\nobligation   under  the\t Constitution  to  provide   medical
\neducation  to the citizens has fixed Rs. 2000 per  annum  as
\ntuition fee for the students selected on merit for admission
\nto the medical colleges and also against “Government  seats”
\nin private medical colleges.  Therefore, the tuition fee  by
\nstudent admitted to the private medical college is only\t Rs.
\n2000 per annum.\t The seats other than the “Government seats”
\nwhich are to be filled from outside Karnataka the management
\nhas been given free hand where the criteria of merit is\t not
\napplicable  and those who can afford to pay Rs.\t 60,000\t per
\nannum are
\n\t\t\t\t\t\t       681<\/span>
\nconsidered  at the discretion of the  management.   Whatever
\nname one may give to this type of extraction of money in the
\nname  of medical education it is nothing but the  capitation
\nfee.  If the State Government fixes Rs.2000 per annum as the
\ntuition\t fee  in  government colleges  and  for\t “Government
\nseats”\tin  private medical colleges than it is\t the  state-
\nresponsibility\tto  see that any private college  which\t has
\nbeen set up with Government permission and is being run with
\nGovernment recognition is prohibited from charging more than
\nRs. 2000 from any student who may be resident of any part of
\nIndia.\tWhen the State Government permits a private  medical
\ncollege\t to  be\t set-up and recognises\tits  curriculum\t and
\ndegrees than the said college is performing a function which
\nunder  the  constitution  has been  assigned  to  the  State
\nGovernment.  We are therefore of the view that Rs.60,000 per
\nannum  permitted  to be charged from  Indian  students\tfrom
\noutside\t Karnataka in Para. 1(d) of the notification is\t not
\ntuition fee but in fact a capitation fee and as such  cannot
\nbe  sustained and is liable to be struck down.\tWhatever  we
\nhave said about para 1(d) is also applicable to Para 1(c) of
\nthe notification.\n<\/p>\n
     Since we have held that  what is provided in para\t1(d)
\nand 1(c) of the impugned notification dated June 5, 1989  is
\ncapitation fee and not a tuition fee it has to be held\tthat
\nthe notification is beyond the scope of the Act rather\tgoes
\ncontrary  to section 3 of the Act and as such has to be\t set
\naside.\t We  therefore\thold  and declare  that\t it  is\t not
\npermissible in law for any educational institution to charge
\ncapitation fee as a consideration for admission to the\tsaid
\ninstitution.\n<\/p>\n
     For the reasons given above we allow this writ petition
\nand  quashed  para  1(d) and 1(c)  of  the  Karnataka  State
\nGovernment   notification   dated  June\t 5,  1989.    As   a
\nconsequence   paragraph\t  5   of   the\t said\tnotification
\nautomatically  becomes\tredundant.  We make  it\t clear\tthat
\nnothing\t contained in this judgment shall be  applicable  to
\nthe  case  of  foreign students and students  who  are\tnon-
\nresident Indians.  We further hold that this judgment  shall
\nbe  operative  prospectively.  All those students  who\thave
\nalready been admitted to the private medical colleges in the
\nState\tof  Karnataka  in  terms  of  the  Karnataka   State
\nNotification dated June 5, 1989 shall not be entitled to the
\nadvantage  of  this judgment and they shall  continue  their
\nstudies on the same terms and conditions on which they\twere
\nadmitted to the consolidated MBBS course.\n<\/p>\n
\t\t\t\t\t\t       682<\/span><\/p>\n
     Although  we  have struck down the capitation  fee\t and
\nallowed\t the  writ  petition  to that  extent,\twe  are\t not
\ninclined  to  grant any relief regarding  admission  to\t the
\npetitioner.   She was not admitted to the college  on  merit
\nand  secondly the course commenced in March-April, 1991\t and
\nwe  see no justification to direct respondent 3 the  medical
\ncollege\t to  admit  the petitioner.  The  writ\tpetition  is
\nallowed in the above terms with no order as to costs.\n<\/p>\n
V.P.R.\t\t\t\t\t   Petition allowed.\n\t\t\t\t\t\t       683<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Miss Mohini Jain vs State Of Karnataka And Ors on 30 July, 1992 Equivalent citations: 1992 AIR 1858, 1992 SCR (3) 658 Author: K Singh Bench: Kuldip Singh (J) PETITIONER: MISS MOHINI JAIN Vs. RESPONDENT: STATE OF KARNATAKA AND ORS. DATE OF JUDGMENT30\/07\/1992 BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-23531","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMiss Mohini Jain vs State Of Karnataka And Ors on 30 July, 1992 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/miss-mohini-jain-vs-state-of-karnataka-and-ors-on-30-july-1992\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Miss Mohini Jain vs State Of Karnataka And Ors on 30 July, 1992 - 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