16 The Right to Education in the Indian Constitution and Case Law

Prof. Rehan Abeyratne

Introduction

The right to education is a constitutionally protected right in India. In Unni Krishnan v. State of Andhra Pradesh (1993), the Indian Supreme Court declared that the right to education comprises part of the fundamental right to life under Article 21 of the Indian Constitution. This decision built on a series of cases in the 1980s and 1990s in which the Supreme Court interpreted Article 21 not only to protect against the arbitrary taking of life, but also to provide a broader right to “live with dignity.” This brought various Directive Principles of State Policy within the ambit of Article 21 and made them justiciable, even though Article 37 of the Constitution of India states that they “shall not be enforceable by any court.” In 2002, through the Eighty-Sixth Amendment Act, the Indian Parliament amended the Constitution to insert a fundamental rights provision, Article 21-A. It requires the state to provide free and compulsory education of all children aged 6-14 in such a manner as the state may determine.

This chapter will introduce students to the Constituent Assembly debates and Constitutional provisions that address the right to education. It will also survey Indian Supreme Court case law on the right to live with dignity under Article 21. It concludes by discussing the Supreme Court’s judgment in the Unni Krishnan case, other significant judgments on the right to education, and Article 21-A of the Indian Constitution.

Learning Outcomes:

After completing this chapter, students should know and understand:

• The Constituent Assembly debates and constitutional provisions on the right to education.
• Jurisprudential developments towards the right to life with human dignity, including a constitutional right to education.
• The Unni Krishnan case, other important cases on the right to education, and Article 21-A of the Indian Constitution.

Right to Education in the Constituent Assembly Debates and the Indian Constitution

While India gained independence from the British in 1947, it only adopted its republican Constitution in 1950 after more than two years of debate within its Constituent Assembly. Given the poverty and high degree of inequality in India, there was no doubt that social and economic (or socioeconomic) justice had to be addressed in the Constitution. Jawaharlal Nehru, who would later become India’s first Prime Minister, stated that the Assembly’s first task was “to free India through a new constitution, to feed the starving people, and to clothe the naked masses, and to give every Indian the fullest opportunity to develop himself.” Yet, the question of whether to include socioeconomic rights, such as the right to education, in the Constitution was a subject of debate among the members of the Constituent Assembly. Some members favored including socioeconomic provisions as justiciable rights – that is, rights that can be enforced in court. K.M. Munshi drafted the “Rights of Workers” and “Social Rights,” which included the right to a living wage and protections for women and children.3 Dr. B.R. Ambedkar, the Chairman of the Drafting Committee, favored a social scheme to nationalize all major industries that would take effect ten years after the Constitution was adopted.

In the end, however, these views did not prevail. The Indian Constitution includes provisions on socioeconomic justice, but they are framed as Directive Principles of State Policy (DPSPs) and not as justiciable rights. This was proposed by BN Rau, an eminent jurist and scholar, who served as constitutional advisor to the Constituent Assembly’s Drafting Committee. Rau was tasked with studying the constitutions of other countries and sharing his findings with the Committee’s members. Drawing from the Irish model, Rau suggested that the Indian Constitution avoid justiciable socioeconomic rights and instead include a list of directive principles: non-binding guidelines intended to guide the government towards improving socioeconomic conditions.

The final version of the Constitution, adopted by the Constituent Assembly, divided “fundamental rights” (mostly civil and political rights) and the DPSPs. Fundamental rights were placed in Part III, while DPSPs were placed in Part IV. While Articles 32 and 226 of the Constitution allow the Supreme Court and High Courts, respectively, to redress violations of fundamental rights, Article 37 makes clear that the DPSPs “shall not be enforceable by any court.” DPSPs are non-justiciable because they represent aspirational long-term goals of the state that will be progressively realized. The Constitution sought to give elected representatives the flexibility to purse these goals gradually and in light of resource constraints, without having the courts interfering in their enforcement.

The Constituent Assembly’s Subcommittee on Fundamental Rights originally intended to include the right to education in Part III of the Constitution and therefore make it a justiciable fundamental right. However, the Assembly’s Advisory Committee rejected this notion and placed “positive” state educational objectives in Part IV. Article 45 provides, “The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.” It is worth noting that this provision, unlike most other DPSPs, is time-bound – the state was expected to fulfill its obligation to provide free education for all children in ten years.

Nevertheless, Part III of the Constitution includes some “negative” fundamental rights that prohibit the state from discriminating against minorities in education. Article 29 states that no citizen may be denied admission into a state-run or state-funded educational institute on the grounds of religion, race, caste or language. Article 30 grants all minorities the right to establish and administer their own educational institutions whether based on religion or language.

The Right to Live with Dignity under Article 21

In the early years of the Indian republic, the judiciary upheld the dichotomy between fundamental rights and directive principles. However, following the Emergency (1975-77) when fundamental rights were severely curtailed and the judiciary provided little protection against state excesses, a few Supreme Court judges took a new approach to fundamental rights in the 1980s. As Craig and Deshpande put it, in this period, “the very purpose of the law itself was undergoing a transformation. It was being used to foster social justice by creating new categories of rights.” These justices revolutionized the Supreme Court’s approach to fundamental rights through both procedural and substantive innovations in the law.

Procedurally, the Supreme Court adopted a series of innovations to ensure public access to the courts and greater judicial oversight over policy matters. These innovations would come to be known as “public interest litigation” (PIL). Bandhua Mukti Morcha v. Union of India (1984) illustrates some of these innovations.  In this case, a three-judge Supreme Court bench, led by Justice PN Bhagwati, initiated a PIL in response to a letter they received from an NGO urging the Court to end the practice of bonded labor. Instead of issuing a single, final judgment declaring bonded labor unconstitutional, the Court adopted a doctrine known as “continuing mandamus.” This allowed the Court to postpone a final judgment and periodically issue guidelines and interim orders to ensure government compliance with the relevant constitutional provisions. Thus, the Court not only relaxed its locus standi requirements to allow an NGO to file a writ petition on behalf of bonded laborers, but also expanded the scope of its authority to keep the litigation open and monitor compliance with its orders.

Substantively, the Supreme Court began to enforce the Directive Principles of State Policy in the early 1980s. It did this by reading DPSPs into the fundamental right to life enshrined in Article 21 of the Indian Constitution. As discussed earlier, Article 37 makes clear that directive principles “shall not be enforceable by any court.” However, since Justice Bhagwati and a few other justices on the Supreme Court were keen to devise new and creative remedies, Article 37 was sidestepped in the larger cause of promoting greater human dignity and socioeconomic justice. In Francis Coralie Mullin v. Union Territory of Delhi (1981), the Supreme Court per Justice Bhagwati declared that the right to life under Article 21 protects a broader right to “live with human dignity.” The Court also stated, “Article 21 cannot be restricted to mere animal existence.” Rather, “it must…include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human self.” The Court has built upon this judgment to enforce a number of new socioeconomic rights within the “right to live with human dignity.” These include the rights to food, education, healthcare, and shelter.

The Right to Education in Indian Case Law and the Enactment of Article 21-A

The first case that declared a right to education under the Indian Constitution was Mohini Jain v. State of Karnataka (1992). Mohini Jain, a non-Karnataka student, applied for admission to a private medical college in Karnataka. Her admission was conditioned on payment of a “capitation fee” – a fee based on the number of persons to whom a service is provided, rather than the actual cost of providing a service, on those who wanted to enter a private medical school and were not admitted to the “government seats”. Government seats were reserved for Karnataka residents and for Scheduled Tribes, Scheduled Castes, and other Backward Classes. Ms. Jain challenged the constitutionality of this capitation fee before a Division Bench of the Supreme Court. She argued, inter alia, that the Constitution confers a fundamental right to education and that this fee violates Article 14’s guarantee of the right to equality as it is arbitrary, unfair and unjust. Relying on Article 21 and several DPSPs (including Article 45), the Division Bench held that there is a right to education under the Constitution as this right flows directly from the right to live with dignity originally recognized under Article 21 in the Francis Coralie case. It therefore held that the capitation fee charged to Ms. Jain was unconstitutional under Article 14 and prohibited the state government from charging such a fee to students in private colleges.

In Unni Krishnan v. State of Andhra Pradesh (1993), a Constitutional Bench of the Supreme Court reexamined the Mohini Jain judgment.  Justice B.P. Jeevan Reddy, writing for the Court, mostly upheld the prior judgment, but limited it in important ways. The Court held that the right to education is implicit within the fundamental right to live with dignity under Article 21. The Court emphasized that the parameters of this right must be understood in the context of the DPSPs, particularly Article 45, which required the state to provide free and compulsory education to all children under fourteen years within ten years. As 44 years had passed since the enactment of the Constitution, and universal primary education had not been achieved, the Court found that Article 45 had been effectively converted from a non-justiciable DPSP into an enforceable fundamental right.

However, the Court made clear that the right to education only applied to children until the age of fourteen years. For secondary and higher education, the right is subject to the limits of economic capacity and development of the state as per Article 41 of the Constitution. The Court lent support to this argument by citing Article 13 of the International Covenant on Economic, Social and Cultural Rights, which requires states to take steps to the maximum of its available resources to progressively realize of the right of education. Thus, the Court held that there is no fundamental right to a professional degree under Article 21.

The Court also issued a very narrow ruling on the question of whether Article 19(1)(g) grants citizens a fundamental right to establish a private university. Article 19(1)(g) provides that all citizens have the right to “practise any profession, or to carry on any occupation, trade or business.” The Court noted that education cannot be a trade or business, as those terms suggest a profit-motive and would not be in keeping with the non-profit, public nature of education. The Court further noted that while teaching is a profession, it would be nonsensical to apply that terminology to the establishment of educational institutions. Finally, the Court held that establishing a university might be considered an “occupation” and that there is a limited fundamental right to create a private university. This is not an absolute right; it is subject to state laws made in the interest of the general public. Moreover, there is no right that requires the state to confer recognition or affiliation on any private university. The state may choose whether or not to recognize universities in accordance with relevant laws and policies.

Thus, while it was narrower than the Mohini Jain judgment, the Constitutional Bench’s decision in Unni Krishnan made clear that the Indian Constitution recognizes a fundamental, enforceable right to education to all children the age of fourteen years. This judgment would be codified through the Eighty-Sixth Amendment Act (2002). This Constitutional Amendment, enacted by Parliament, inserted Article 21-A to Part III (Fundamental Rights) of the Constitution. It declares, “The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.” This constitutional right was later operationalized through the Right of Children to Free and Compulsory Education Act (2009).

Summary

The right to education is recognized today as a fundamental right under the Constitution of India. This is a relatively recent development. The Constituent Assembly included state obligations to provide free and compulsory primary education under Article 45 of the Constitution. This is a Directive Principle of State Policy, which was not enforceable by courts. Articles 29 and 30, however, are justiciable fundamental rights that prevent the state from discriminating against minority groups in access to education or in the establishment of educational institutions.

In Unni Krishnan v. State of Andhra Pradesh (1993), a Constitutional Bench of the Indian Supreme Court made the state policies in Article 45 justiciable as part of the right to live with dignity under Article 21. It held that all children until the age of fourteen have the right to free and compulsory education. It further held that education for those older than fourteen years – including secondary education – is subject to state resource constraints. Moreover, there is no right to a professional degree, though the Court granted a limited right under Article 19(1)(g) for citizens to establish private universities. These institutions are subject to state laws passed in the public interest and the state has no duty to recognize every private institution.

The Unni Krishnan judgment was codified as a constitutional amendment in 2002. Article 21-A of the Constitution requires the state to provide free and compulsory education to all children between six and fourteen years of age. This constitutional provision was later operationalized in 2009 through the Right of Children to Free and Compulsory Education Act.

Reference

• Granville Austin, The Indian Constitution: Cornerstone of a Nation (New Delhi, Oxford University Press, 1996).
• Jawaharlal Nehru, The Unity of India: Collected Writings 1937-40 (New Delhi: Nabu Press, 1948), at Austin, The Indian Constitution, at 78.
• This section draws from Rehan Abeyratne, “Socioeconomic Rights, Human Dignity, and Constitutional Legitimacy in India”, in Comparing Human Dignity (Hart Publishing 2014) (forthcoming).
• PP Craig & SL Deshpande, “Rights, Autonomy and Process: Public Interest Litigation in India”, 9 OXFORD JOURNAL OF LEGAL STUDIES 356, 361 (1989).
• Rehan Abeyratne, “Socioeconomic Rights in the Indian Constitution: Towards a Broader Conception of Legitimacy”, 39 Brooklyn Journal of International Law 1 (2014); Upendra Baxi, “Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India”, 4 THIRD WORLD LEGAL STUDIES 107, 113-116 (1985); Rajeev Dhavan, “Law as Struggle: Public Interest Law in India” 36 JOURNAL OF THE INDIAN LAW INSTITUTE 302, 306 (1994).
• Bandhua Mukti Morcha v Union of India, 1984 S.C.R. (2) 67.
• Manoj Mate, “Two Paths to Judicial Power: The Basic Structure Doctrine and Public Interest Litigation in Comparative Perspective” (2010) 12 San Diego Journal of International Law 175, 196-200.
• Francis Coralie Mullin v Union Territory of Delhi, (1981) 2 S.C.R. 516.
• See PUCL v Union of India, Writ Petition (Civil) No. 196 (2001); Unni Krishnan v State of AP, (1993) 1 C.C. 645; Paschim Banga Khet Mazdoor Samity v State of WB, (1996) 4 S.C.C. 37; Olga Tellis v Bombay Municipal Corporation, (1985) 2 S.C.R. Supp. 51 (India).