TMI Blog1992 (7) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the students by the Private Medical Colleges in the State. Under the notification the candidates admitted against Government seats are to pay ₹ 2,000 per year as tuition fee. The Karnataka students (other than those admitted against Government seats ) are to be charged tuition fee not exceeding ₹ 25,000 per annum. The third category is of Indian students from outside Karnataka , from whom tuition fee not exceeding ₹ 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 ₹ 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 ₹ 60,000 and as a consequence she was denied admission to the medical college. Mohini Jain has alleged that the management demanded a furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amers 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 furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ights 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lth 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. 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 organisation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 dimens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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 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 dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filiated 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 subsection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ₹ 60,000 per annum. Whether ₹ 60,000 per annum can be considered a tuition fee or it is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Although we have struck down the capitation fee and allowed the wri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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