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DR. RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW

_____________________________________________________________________

CONSTITUTIONAL LAW-I

FINAL DRAFT

RIGHT TO EDUCATION:

Unni Krishnan, J.P. & Ors. v State of Andhra Pradesh & Ors.

Submitted to: Submitted by:

Ms. Ankita Yadav Stuti Sinha

Assistant Professor (Law) Roll No. : 149

Dr. Ram Manohar Lohiya B.A.LL.B(Hons.)

National Law University 3rd Semester

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ACKNOWLEDGEMENT

While bearing full responsibility for any mistakes, I wish to thank Ms. Ankita Yadav for making
a number of helpful comments and constructive criticisms for my project. I would like to thank
her for allowing me to make project on an appropriate topic of my choice and that has helped me
in better understanding of the subject. I also thank the comments and suggestions of my seniors,
which were also of great assistance. However, I am alone responsible for all the remaining errors
and inadequacy. I would like to thank my parents for their constructive feedback.
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TABLE OF CONTENTS

1. Introduction ............................…………………………………………………… 4

2. Right to education ................................................................................................... 5

3. The Constitution of India .......................................................................................... 6

4. Unni Krishnan case ................................................................................................... 7-11

 Nature of the case

 On what breach of law was the case brought
 Process
 Summary
 Result of the case
 What has this case done to further the right to education
 Effect of the case
 Enforcement of the decision and outcomes
 Significance of the case
5. Mohini Jain v State of Karnataka ................................................................................ 12
6. Conclusion .................................................................................................................... 13
7. Bibliography ................................................................................................................. 14
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INTRODUCTION

Constitutional challenge querying whether the “right to life” in Article 21 of the Constitution of
India guarantees a fundamental right to education to citizens of India; role of economic resources
in limiting right to education; interplay between Directive Principles of State Policy in the
Constitution and Fundamental Rights; whether the right to education includes adult professional
education.
The case involved a challenge by certain private professional educational facilities to the
constitutionality of state laws regulating capitation fees charged by such institutions.

The Supreme Court held that the right to basic education is implied by the fundamental right to
life (Article 21) when read in conjunction with the directive principle on education (Article 41).
The Court held that the parameters of the right must be understood in the context of the Directive
Principles of State Policy, including Article 45 which provides that the state is to endeavor to
provide, within a period of ten years from the commencement of the Constitution, for free and
compulsory education for all children under the age of 14. The Court ruled that there is no
fundamental right to education for a professional degree that flows from Article 21. It held,
however, that the passage of 44 years since the enactment of the Constitution had effectively
converted the non-justifiable right to education of children under 14 into one enforceable under
the law. After reaching the age of fourteen, their right to education is subject to the limits of
economic capacity and development of the state (as per Article 41). Quoting Article 13 of the
International Covenant on Economic, Social and Cultural Rights, the Court stated that the state's
obligation to provide higher education requires it to take steps to the maximum of its available
resources with a view to achieving progressively the full realization of the right of education by
all appropriate means.
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RIGHT TO EDUCATION
The right to education is a universal entitlement to education, recognized in the International
Covenant on Economic, Social and Cultural Rights as a human right that includes the right to
free, compulsory primary education for all, an obligation to develop secondary
education accessible to all, in particular by the progressive introduction of free secondary
education, as well as an obligation to develop equitable access to higher education, ideally by the
progressive introduction of free higher education.

The Right of Children to Free and Compulsory Education Act or Right to Education Act
(RTE)1, is an Indian legislation enacted by the Parliament of India on 4 August 2009, which
describes the modalities of the importance of free and compulsory education for children
between 6 and 14 in India under Article 21a of the Indian Constitution. India became one of 135
countries to make education a fundamental right of every child when the act came into force on
1 April 2010.

Main provisions of the Act:

 Every child between the ages of six to fourteen years shall have the right to free and
compulsory education in a neighborhood school, till completion of elementary education-
External website that opens in a new window.

 No child shall be liable to pay any kind of fee or charges or expenses which may prevent
him or her from pursuing and completing elementary education.

 Where a child above six years of age has not been admitted to any school or though
admitted, could not complete his or her elementary education, then, he or she shall be
admitted in a class appropriate to his or her age.

 The appropriate government and local authority shall establish a school, if it is not
established, within the given area in a period of three years from the commencement of this
Act.

 The Central and the State Governments shall have concurrent responsibility for providing
funds for carrying out the provisions of this Act.

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http://www.right-to-education.org
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THE CONSTITUTION OF INDIA, 19502(amended 2006)

EDUCATION
 Art. 21A. 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.
(EIGHTY-SIXTH AMENDMENT ACT, 2002)
 Art. 41. Right to work, to education and to public assistance in certain cases.
 The State shall, within the limits of its economic capacity and development, make
effective provision for securing the right to work, to education and to public assistance in
cases of unemployment, old age, sickness and disablement, and in other cases of
undeserved want.
 Art. 45. Provision for free and compulsory education for children.
(1) 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.
(2) The State shall endeavour to provide early childhood care and education for all
children until they complete the age of six years. (EIGHTY-SIXTH AMENDMENT
ACT, 2002)
 Art. 46. Promotion of educational and economic interests of Scheduled Castes,
Scheduled Tribes and other weaker sections.
The State shall promote with special care the educational and economic interests of the
weaker sections of the people, and, in particular, of the Scheduled Castes and the
Scheduled Tribes, and shall protect them from social injustice and all forms of
exploitation.
 Art. 51A (k) who is a parent or guardian to provide opportunities for education to his
child or, as the case may be, ward between the age of six and fourteen years. (EIGHTY-
SIXTH AMENDMENT ACT, 2002)

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The Constitution of India,1950
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Unni Krishnan, J.P. & Ors. v. State of Andhra Pradesh & Ors.3

Citation
AIR 1993 SC 2178

Keywords
Children‘s Rights, Directive Principles, Education Rights, Right to life, civil/political rights,
constitutional law, India, national level, adult professional education, accessibility, time limits on
progressive realization.

Context
Certain private medical and engineering colleges in India charged capitation fees.

Nature of the Case

Constitutional challenge querying whether the “right to life” in Article 21 of the Constitution of
India guarantees a fundamental right to education to citizens of India; role of economic resources
in limiting right to education; interplay between Directive Principles and State Policy in the
Constitution and Fundamental Rights; whether the right to education includes adult professional
education.

On what breach of law was the case brought?

The college management was seeking enforcement of their right to business through the charging
of “capitation fees” from students seeking admission. The court expressly denied this claim and
proceeded to examine the nature of the right to education - specifically the following articles of
the constitution:
Article 45: The State shall endeavor to provide, within a period of ten years from the
commencement of this Constitution, for free and compulsory education for all

3
AIR 1993 SC 2178
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children until they complete the age of fourteen years. This is an example of a time limit being
given for progressive realization of a right.
Article 41: The State shall, within the limits of its economic capacity and development, make
effective provision for securing the right to work, to education ...
Article 21: No person shall be deprived of his life or personal liberty except according to
procedure established by law.
Article 46: The State shall promote with special care the educational and economic interests of
the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled
Tribes, and shall protect them from social injustice and all forms of exploitation.

Process
The Court asserted that Article 45 has a ten year limit for a reason, and noted that it is the only
article in Part IV of the constitution to contain such a limit. It held, therefore, that the passage of
44 years since the enactment of the Constitution had effectively converted the non-justiciable
right to education of children under 14 into one enforceable under the law.
However, the Court expressed dismay in adding; ‘it is relevant to notice that Article 45 does not
speak of the “limits of its economic capacity and development” as does Article 41, which
amongst other things speaks of the right to education. What has actually happened is more
money is spent and more attention is directed to higher education than to—and at the cost of—
primary education up to 14 years of age.
‘The right to education further means that a citizen has a right to call upon the State to provide
educational facilities to him within the limits of its economic capacity and development. By
saying so, we are not transferring Article 41 from Part IV [directive principles within the
Constitution] to Part III [fundamental rights within the Constitution] - we are merely relying
upon Article 41 to illustrate the content of the right to education flowing from Article 21. We
cannot believe that any State would say that it need not provide education to its people even
within the limits of its economic capacity and development. It goes without saying that the limits
of economic capacity are, ordinarily speaking, matters within the subjective satisfaction of the
State.’
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The Court continued by asserting the right to education’s position as being fundamental to
enjoying the right to life:
‘We must hasten to add that just because we have relied upon some of the directive
principles to locate the parameters of the right to education implicit in Article 21, it does
not follow automatically that each and every obligation referred to in Part IV [of the
Constitution] gets automatically included within the purview of Article 21. We have held
the right to education to be implicit in the right to life because of its inherent fundamental
importance. As a matter of fact, we have referred to Articles 41, 45 and 46 merely to
determine the parameters of the said right.’

Summary
The case involved a challenge by certain private professional educational facilities to the
constitutionality of state laws regulating capitation fees charged by such institutions.
The Supreme Court held that the right to basic education is implied by the fundamental right to
life (Article 21) when read in conjunction with the directive principle on education (Article 41).
The Court held that the parameters of the right must be understood in the context of the Directive
Principles of State Policy, including Article 45 which provides that the state is to endeavor to
provide, within a period of ten years from the commencement of the Constitution, for free and
compulsory education for all children under the age of 14. The Court ruled that there is no
fundamental right to education for a professional degree that flows from Article 21. It held,
however, that the passage of 44 years since the enactment of the Constitution had effectively
converted the non-justifiable right to education of children under 14 into one enforceable under
the law. After reaching the age of fourteen, their right to education is subject to the limits of
economic capacity and development of the state (as per Article 41). Quoting Article 13 of the
International Covenant on Economic, Social and Cultural Rights, the Court stated that the state's
obligation to provide higher education requires it to take steps to the maximum of its available
resources with a view to achieving progressively the full realization of the right of education by
all appropriate means.
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Result of the case

The Court held that the right to basic education is implied by the fundamental right to life
(Article 21), when read in conjunction with the directive principle on education (Article 41). The
Court held that the parameters of the right must be understood in the context of the Directive
Principles of State Policy, including Article 45 which provides that the state is to endeavor to
provide, within a period of ten years from the commencement of the Constitution, for free and
compulsory education for all children under the age of 14.
Article 41 indicates that after the age of 14, the right to education is subject to the limits of
economic capacity and development of the state.
Indeed it was found that there is no fundamental right to education for a professional degree that
flows from Article 21.

Effect of the case4

The state responded to this declaration nine years later by inserting, through the Ninety-third
amendment to the Constitution, Article 21-A, which provides for the fundamental right to
education for children between the ages of six and fourteen. In addition, several States in India
have passed legislation making primary education compulsory.
Although the Court in Unni Krishnan stated specifically that it was not transferring Article 41
from Part IV to Part III, in the subsequent case of M.C. Mehta v State of Tamil Nadu &
Ors AIR 1997 SC 699, the Supreme Court stated that Article 45 had acquired the status of a
fundamental right following the Constitutional Bench's decision in Unni Krishnan.
In addition, the Court said that, in order to treat a right as fundamental right, it is not necessary
that it should be expressly stated as one in Part III of the Constitution: “the provisions of Part III
and Part IV are supplementary and complementary to each other”. The Court rejected that the
rights reflected in the provisions of Part III are superior to the moral claims and aspirations
reflected in the provisions of Part IV.

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http://www.escr-net.org
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What has this case done to further the right to education?

This case provides a good example of how the right to life can be interpreted as including the
right to livelihood, and explicitly the right to education (at least primary education). It should be
noted that the Indian courts have thus far been unique in reading the right to education directly
into the right to life.

Enforcement of the Decision and Outcomes

The state responded to this declaration nine years later by inserting, through the Ninety-third
amendment to Constitution, Article 21-A, which provides for the fundamental right to education
for children between the ages of six and fourteen. In addition, several States in India have passed
legislation making primary education compulsory. These statutes “have however remained un-
enforced due to various socio-economic and cultural factors as well as administrative and
financial constraints. There is no central legislation making elementary education compulsory.”

Significance of the Case

The Court in Unni Krishnan expressed its disagreement with the finding in the earlier case
of Mohini Jain v State of Karnataka 1992 AIR 1858 that the right to education at all levels is
guaranteed by the Constitution. In the subsequent case of M.C. Mehta v State of Tamil Nadu &
Ors (1996) 6 SCC 756; AIR 1997 SC 699, the Supreme Court stated that Article 45 had
acquired the status of a fundamental right following the Constitutional Bench's decision in Unni
Krishnan.

In addition, the Court said that, in order to treat a right as fundamental right, it is not necessary
that it should be expressly stated as one in Part III of the Constitution: “the provisions of Part III
and Part IV are supplementary and complementary to each other”. The Court rejected that the
rights reflected in the provisions of Part III are superior to the moral claims and aspirations
reflected in the provisions of Part IV.
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Mohini Jain v State of Karnataka5

Citation: AIR 1992 SC 1858

Keywords: Civil/political rights, accessibility, dignity and education included within the right
to life, Constitutional law, India, national level.
A capitation fee was imposed on those who wished to enter a medical school which placed it
beyond the reach of the poor.
Article 21 of the Indian Constitution 1950 states that ‘No person shall be deprived of his life or
personal liberty except according to procedure established by law.’
The preamble states that one of the aims of the Constitution is to secure to all its citizens
‘equality of status and of opportunity’.
Article 19 of the Constitution states that ‘all citizens shall have the right a) to freedom of speech
and expression and ... g) to practice any profession, or to carry on any occupation, trade or
business’.
Article 14 of the Constitution affirms that ‘The State shall not deny to any person equality before
the law or the equal protection of the laws within the territory of India'.
The Court held the fee to be an arbitrary and unequal action in violation of Article 21, and stated;
‘We think that the right to life includes the right to live with human dignity and all that goes
along with it, namely the bare necessaries of life such as adequate nutrition, clothing and shelter
and facilities for reading, writing and expressing oneself.’
Note that the limiting clause in Article 21 is not applicable because the capitation fee was not
established by law, rather by the policy of a medical school.

5
AIR 1992 SC 1858
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CONCLUSION

In this case, Supreme Court held that the right to basic education is implied by the fundamental
right to life (Article 21) when read in conjunction with the directive principle on education
(Article 41). The Court held that the parameters of the right must be understood in the context of
the Directive Principles of State Policy, including Article 45 which provides that the state is to
endeavour to provide, within a period of ten years from the commencement of the Constitution,
for free and compulsory education for all children under the age of 14. The Court ruled that there
is no fundamental right to education for a professional degree that flows from Article 21. It held,
however, that the passage of 44 years since the enactment of the Constitution had effectively
converted the non-justiciable right to education of children under 14 into one enforceable under
the law. After reaching the age of fourteen, their right to education is subject to the limits of
economic capacity and development of the state (as per Article 41). Quoting Article 13 of the
International Covenant on Economic, Social and Cultural Rights, the Court stated that the state's
obligation to provide higher education requires it to take steps to the maximum of its available
resources with a view to achieving progressively the full realization of the right of education by
all appropriate means.
This case provides a good example of how the right to life can be interpreted as including the
right to livelihood, and explicitly the right to education (at least primary education). It should be
noted that the Indian courts have thus far been unique in reading the right to education directly
into the right to life.
In addition, the Court said that, in order to treat a right as fundamental right, it is not necessary
that it should be expressly stated as one in Part III of the Constitution: “the provisions of Part III
and Part IV are supplementary and complementary to each other”. The Court rejected that the
rights reflected in the provisions of Part III are superior to the moral claims and aspirations
reflected in the provisions of Part IV.
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BIBLIOGRAPHY

1.) Constitution of India, V.N.Shukla

2.) All India Reporter
3.) www.manupatra.com
4.) www.indiankanoon.org
5.) www.escr-net.org
6.) www.actionaid.org
7.) www.scconline.com
8.) www.right-to-education.org