landmark judgement LAW INSIDER IN





Constitution of india- Article 19(1)(g) , 21 , 41, 45, 46


  • In may 1992, the Government issued a notification inviting applications for permission to establish Medical, Dental and Engineering Colleges. The Committee formulated its guidelines and submitted its report recommending as many as 12 Medical Colleges and 8 Dental Colleges. ThenChief Minister approved the same and a G.O. was issued on the same day granting permission. A number of Writ Petitions were immediately filed in the High Court challenging the said grant as well as Section 3-A.
  • There are a number of private engineering colleges in the State and before 1992-1993, all the seats in these colleges were filled by the common entrance examination. The management had no discretion in the matter of admission of students. They were, however, permitted to charge a particular fee , nothing more.
  • But when Section 3-A  was introduced in the 1983 Act on 15.4.1992, these private engineering colleges are entitled to admit students to the extent of 50 per cent of the seats according to their choice, so long as they have qualified in the entrance test which means collection of capitation fee as much as they could. The students and teaching community against such admissions. Even the Government could not ignore the said protest and asked the private engineering colleges on 26.7.1992 not to make any admissions till the Rules are made under Section 3-A.
  • The engineering colleges, however, took the stand that they have already made the admissions according to their choice to the extent of one-half.
  • This led to the filing of a batch of Writ petitions in the Andhra Pradesh High Court. It declared Section 3A Un-Constitutional.
  • The court also declared that the admissions made by the private Engineering Colleges at their own choice to the extent of 50 per cent was illegal. The Court further declared that the grant of permission to 12 Medical and 8 Dental Colleges was equally invalid.
  • It is against this decision of high court that the State of Andhra Pradesh, certain educational institutions and the students admitted at the choice of the managements have come forward with a number of Special leave petitions.
  • Leave is granted against the Full Bench decision of the Andhra Pradesh High Court dated 18th September, 1992 in all the special leave petitions. Also, there are a few writ petition from this State questioning the correctness of the judgment in Mohini Jain.


Along with Andhra Pradesh, state laws were enacted to regulate the capitation fee charges in the states of Tamil Nadu, Karnataka and Maharashtra. This case comes into existence through petitions filed by the private educational institutions to challenge the state laws. Some educational institutions have resisted and challenged the same before the Apex Court.


  • Whether the constitution of india guarantees a fundamental right to education to its citizens?
  • Whether a citizen of india has the fundamental right to establish & run an educational institution under article 19(1)(g) or in any other else provision in the constitution?
  • Whether the grant of permission to establish and the grant of affiliation by a university imposes an obligation upon an educational institutions to act fairly in student’s admission?


  • The State has no monopoly in the matter of education. As a part of the right guaranteed to him by Article 19(1)(g) of the Constitution, each & every citizen has the fundamental right to establish an educational institution, which extends even to the establishment of an educational institution with a profit motive.
  • The defect lies in unnecessary State control but not in the establishment of educational institutions by individuals and private bodies but. The law of demand and supply must be allowed a free play.
  • The establishment of an education institution is no different from starting a business . the motive of establishment is immaterial. Also, in today’s era only when there is profit motive the people with means would come forward to open more and more schools and colleges as there are not many persons available today who are prepared to donate large funds for establishing such institutions by way of charity.
  • The petitioners has atleast the right to establish self financing institutions,  means that it is open to collect amounts from willing parties and establish an institution to educate children. Even in the established institutions fees collected from the students includes not only the expenditure of running the institution but also for improvement, expansion, diversification and growth. The govt. can impose conditions of allotment of certain to students on merits ( will pay only fee charged in govt. institutions).

Mohini jain’s case was incorrect is stating that the amount over & above fee (by whatever name) is capitation fee. The cost for educating medical, engineer is far high, therefore impossible for the private institutions to survive as they are not funded by the state like govt. institutions.

  • Article 19(1) (g) was highlighted, the petitioners do have the right to establish private educational institutions whether self-financing or cost- based private educational institutions, this right can be restricted only by a law as contemplated by clause (6) of, Article 19.
  • By mere recognition/affiliation the state cannot impose a condition that the private educational institutions should admit students exclusively on merit. The state should respect the wishes of such institutions.


  • Imparting of education has always been recognised as the religious duty in this country. It has also been recognised as a charitable object not as a trade or business.
  • Education is considered to be the most important function and when the state gives permission to any private institution to perform its function, it is its duty to make sure that nobody should get an advantage of their economic power.
  • The right to establish an institution given to the citizen does not carry within itself the right to recognition/affiliation. Therefore, the state can impose any condition for recognition to ensure the fairness, merit, standards of education in the interest of society. Institutions obtaining such recognition must be bound by the conditions imposed.
  • These private institutions are performing an important public function, liable to be termed as “state action” as their activity is closely inter-twined with governmental activity. They are bound not to collect fee over & above charged by governmental institutions, only the bare running charges can be charged from the students, capital cost cannot be charged.


  • The citizens of this country have a fundamental right to education which flows from Article 21. This right is not an absolute right. The court highlighted the Articles 45, 46 and 41 and it is in the light of these articles that the content of the right to education have to be determined.

Every citizen of this country has a right to free education until he completes the age of fourteen years. Thereafter his right to education is subject to the limits of economic capacity and development of the State.

  • The fundamental rights and directive principles are supplementary and complementary to each other and that the provisions in Part III should be interpreted having regard to the Preamble and the directive principles of the State policy.
  • The court referred its judgment in “Bandhua Mukti Morcha” where this court held that the right to life guaranteed by Article 21 does take in ‘educational facilities’. Therefore, that right to education is implicit in and flows from the right to life guaranteed by Article 21.
  •  So far as aided institutions are concerned, they have to abide by all the rules and regulations as may be framed by the Government and/or recognising/affiliating authorities. In particular, in the matter of admission of students, they have to follow the rule of merit and merit alone subject to any reservations made under Article 15. Also,they shall not be entitled to charge any fees higher than what is charged in Governmental institutions for similar courses.
  • The un-aided institutions, they cannot be compelled to charge the same fee as is charged in Governmental institutions as they have to meet the cost of imparting education from their own resources and the main source, apart from donations/charities, if any, can only be the fees collected from the students.  The private educational institutions are entitled to charge a higher fee, not exceeding the ceiling fixed, as governed by the scheme.
  •  Considering article 19(1)(g), the education has never been treated like commerce as  it is opposed to the ethics of the Indian society. It has been treated as a religious duty. It has been treated as a charitable activity. But never as trade or business.

The court said that a person or body of persons has a right to establish an educational institution in this country. But this right is not an absolute one.

  •  The court referred the case of St. Xaviers College v. Gujarat where was stated that the right to establish an educational institution does not carry with it the right to recognition or the right to affiliation, there is no fundamental right to affiliation. The court in the present case declared that affiliation/recognition will be granted by the state according to the conditions set out by it.

The activity performed by the private institutions is supplemental to the principal activity carried on by the State. Therefore, it is obligatory in the interest of general public that the authority granting recognition or affiliation ie. state had to insist appropriate conditions to ensure not only education of required standard but also fairness in the matter of admission of students. The state cannot allow its power to be used unfairly.

  • Section 3-A of the Andhra Pradesh Educational Institutions (Regulation Of Admission And Prohibition of Capitation Fee) Act, 1983 is violative of the Article 14 and is accordingly declared void, the declaration of the Andhra Pradesh High Court in this behalf is affirmed.
  •  Civil Appeals by Andhra Pradesh students who were admitted by private unaided engineering colleges, without an allotment from the convenor of the common entrance examination are allowed. The students so admitted for the academic year 1992-93 are allowed to continue in the said course but the management shall comply with the directions delivered by the court in this regard.


The question under the judicial scrutiny was whether article 21 enumerates a fundamental right of education for an adult professional degree, citizens can ask for the right to education for professional education also.


In this case the Supreme Court said that right to primary education up to 14 years of age is a fundamental right enumerating from Article 21 of the Indian constitution. The court further held that there is no fundamental right of professional education flowing from Article 21. Therefore, it depends upon the economic conditions of the state.