Education Before Article 21A

Article 45 as it stood in 1992 and 1993 is no longer in the Constitution, the Eighty-sixth Amendment having replaced it, so it is taken from the two reports, which set it out in identical terms apart from a slip of transcription in each: "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."

Article 45 as it now stands, substituted by the Constitution (Eighty-sixth Amendment) Act 2002 with effect from 1 April 2010, reads: "The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years."

Broken down

Three features of the old article 45 did the work, and all three appear in the reasoning.

1. It named an age, fourteen years, and it was the only article of Part IV carrying a time limit as well, which the Court in Unni Krishnan called "very significant". A directive with a defined beneficiary and a defined endpoint can be converted into a right; a directive to promote welfare generally cannot.
2. It said "endeavour to provide". That is weaker than a command, and it is the strongest argument against the whole exercise. Counsel in Unni Krishnan pressed it, contrasting article 45 with article 49, where an "obligation" is placed on the State.
3. Article 41 supplies the brake. Its opening words, "within the limits of its economic capacity and development", stop the right at fourteen and turn everything beyond it into a claim measured by what the State can afford.

The first answer

Facts. Miss Mohini Jain v. State of Karnataka, 1992 AIR 1858, 1992 SCR (3) 658, decided 30 July 1992 by a Bench of two. A notification of 5 June 1989 under section 5(1) of the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act 1984 fixed the tuition fee that private medical colleges could charge: Rs 2,000 a year for students admitted against "Government seats", up to Rs 25,000 for other Karnataka students, and up to Rs 60,000 for "Indian students from outside Karnataka". The petitioner fell in the last category. A private medical college told her she could have an MBBS seat if she deposited Rs 60,000 for the first year and gave a bank guarantee for the rest. Her father said he could not pay it, and she was refused admission. She petitioned under article 32.

Held. The notification, so far as it permitted the higher fees, was struck down. "'Right to life' is the compendious expression for all those rights which the Court must enforce because they are basic to the dignified enjoyment of life." Since an individual cannot be assured of human dignity unless his personality is developed, and the only way to do that is to educate him, "The right to education flows directly from right to life", and article 41 "recognises an individual's right 'to education'". Every citizen therefore has a right to education under the Constitution, and when the State recognises a private college it "creates an agency to fulfil its obligation under the Constitution". On that footing "Capitation fee is nothing but a price for selling education", and charging it is "a patent denial of a citizen's right to education under the Constitution" and, letting the rich buy what a poorer and better candidate cannot, "wholly arbitrary and as such violative of Article 14".

Why it matters. It is the case that put education inside article 21, and it did so in the widest possible terms: a right at all levels, against a State bound to provide the institutions. That width is what brought every private professional college in four States to the Supreme Court within months.

The second answer

Facts. Unni Krishnan, J.P. v. State of Andhra Pradesh, 1993 AIR 2178, 1993 SCR (1) 594, decided 4 February 1993 by a Constitution Bench of five. Private medical and engineering colleges in Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu challenged the correctness of Mohini Jain. They claimed a right under article 19(1)(g) to establish educational institutions, said they received no State aid, and said that if they could charge no more than a government college they would have to close. The validity of section 3A of the Andhra Pradesh capitation fee Act was also in issue.

Held. On the source of the right, Mohini Jain was not wrong: "it would not be correct to contend that Mohini Jain was wrong in so far as it declared that 'the right to education flows directly from right to life'", and the negative wording of article 21 is no answer, because it has "both a negative and an affirmative dimension". On the width of the right, Mohini Jain was wrong. Asked whether a citizen may demand that the State provide enough medical and engineering colleges to satisfy all educational needs, the Court said: "Mohini Jain seems to say, yes. With respect, we cannot agree with such a broad proposition." The right "must be construed in the light of the directive principles in Part IV", so that "every child/citizen of this country has a right to free education until he completes the age of 14 years" and thereafter "his right to education is circumscribed by the limits of the economic capacity of the State and its development". The Court added that no citizen has a fundamental right to recognition, affiliation or grant in aid, that private institutions may charge a higher fee subject to a ceiling, and that section 3A of the Andhra Pradesh Act violated article 14, and it framed a scheme governing admissions and fees in private professional colleges. What became of that scheme belongs to [The Eleven-Judge Answer].

Why it matters. It fixed the shape of the right for the seventeen years before article 21A, and it shows how a court limits a right it cannot afford to leave open. It is also why article 21A says "six to fourteen years": Parliament wrote Unni Krishnan's age limit into the text.

Exactly what survived

This is the part examiners test, and loose answers get it backwards in both directions.

Mohini Jain was not overruled on the source of the right. Unni Krishnan says in terms that its declaration that the right to education flows from the right to life was not wrong, and the headnote records Mohini Jain as affirmed on that proposition.

Mohini Jain was overruled on the extent of the right. What fell was the broad proposition that every citizen has a right to education at all levels which the State is bound to satisfy. The headnote records Mohini Jain as overruled against the paragraph holding that citizens cannot demand colleges enough for all their needs.

And two of the five judges would not decide the question at all. Sharma C.J., for himself and Bharucha J., agreed with Jeevan Reddy J. except on this: whether primary education under article 45 is a fundamental right under article 21 "did not arise in Mohini Jain's case", so they expressed no opinion, held "there is no Fundamental Right to education for a professional degree that flows from Article 21", said the finding in Mohini Jain on the question "was not necessary in that case and is, therefore, not binding law", and suggested a larger Bench if the point ever squarely arose. The proposition about free education up to fourteen therefore carried three of the five, Jeevan Reddy and Pandian JJ. with Mohan J. concurring separately, though the Court's own summary states it as a holding of the Court.

The two cases side by side

What it does NOT mean

It does not mean Unni Krishnan denied a right to education. It affirmed one and measured it. A student who writes that Unni Krishnan overruled Mohini Jain, full stop, has lost the case's whole point.

It does not mean the age of fourteen came from article 21. It came from article 45, which is why article 21A repeats it. Article 21 supplied enforceability; Part IV supplied the content and the limit.

It does not mean Part IV became enforceable. Article 37 is untouched. The directive principles were used to construe "life", and Sharma C.J.'s reservation shows how live the objection was even inside the Bench.

It does not mean free education was delivered. The right was declared in 1993; Parliament put it in Part III in 2002 and brought it into force in 2010, dealt with in [Article 21A and the Right to Education Act].

A worked example

The year is 2000. Asha, aged nine, lives in a village whose government primary school has had no teacher for two years. Her elder brother Vikas, aged nineteen, has been refused a seat in a private engineering college because he cannot pay the management quota fee.

Step one, has Asha a right a court can enforce? Yes. On Unni Krishnan she has a fundamental right, flowing from article 21 read with article 45, to free education until she completes fourteen. Article 37 does not bar her, because she sues on article 21.

Step two, what can she ask for? Provision of the education, not a particular school. Unni Krishnan says the obligation may be discharged through State schools or by permitting, recognising and aiding others who will teach free.

Step three, has Vikas the same right? No. He is past fourteen, so his right is "circumscribed by the limits of the economic capacity of the State and its development".

Step four, can Vikas complain of the fee itself? He can complain of a capitation fee, which Mohini Jain held to be a price for selling education and arbitrary under article 14. He cannot complain merely that a private college charges more than a government one, because Unni Krishnan permits a higher fee within a ceiling. After 2010 Asha's claim becomes one under article 21A in its own words, while Vikas's position is unaltered, because article 21A stops at fourteen too.

Quick revision

• The Constitution of 1950 had no fundamental right to education: only articles 41 and 45 in Part IV, which article 37 makes unenforceable.
• Old article 45: endeavour to provide free and compulsory education for all children until fourteen, within ten years of the commencement. That decade expired in 1960.
• Mohini Jain (1992, two judges): the right to education flows directly from the right to life, every citizen has it, and a capitation fee denies it and is arbitrary under article 14.
• Unni Krishnan (1993, five judges): affirmed the source, cut the width. Free education until fourteen; after fourteen, subject to the State's economic capacity and development.
• Sharma C.J. and Bharucha J. declined to decide whether primary education is a fundamental right, and held Mohini Jain's finding on it not binding law.
• Unni Krishnan also held there is no fundamental right to recognition or affiliation, allowed a higher fee up to a ceiling, and struck down section 3A of the Andhra Pradesh Act under article 14. It framed a scheme for admissions and fees.
• The Eighty-sixth Amendment 2002 inserted article 21A and substituted article 45, both with effect from 1 April 2010, writing the age of fourteen into the text.

Test yourself

1. Where was education in the Constitution of 1950, and why could a child not enforce it?

2. State what Unni Krishnan affirmed in Mohini Jain and what it overruled. Why is "Unni Krishnan overruled Mohini Jain" an inaccurate answer?

3. Where does the age of fourteen come from, and what governs a citizen's right to education after that age?

4. What did Sharma C.J. and Bharucha J. decline to decide, and what did they say about the authority of Mohini Jain?

5. How can articles 41 and 45 determine the content of article 21 when article 37 says Part IV is not enforceable?

6. What did the Eighty-sixth Amendment do to article 45, and from what date?