Commercialisation of

Education
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and cons titutional mandate
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“If India wakes up to the world situation and readjusts her educational
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the future of civilization.” 1

Alladi Krishna Aiyyar

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INTRODUCTION

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"Maata Shatroo Pitaa Vairi Yen Balo Na Pathitaa, Na Shobhati

Sabha Madhye Hans Madhye Kabo Yadha". This is a Sanskrit saying

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depicting the importance of education. It means that "A mother and father
who do not encourage their child's education are his enemies indeed, an


illiterate among educated one is the same as, in a group of swans the crow
is neither wanted nor admired. Education has always been and continues
to be one of the most important needs of mankind. It helps man
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indoctrinate values and apply the technical know how in real life situations.
Now the India has the largest student population in the world over 230

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and low literacy rate. Also there is a short supply of educated
manpower which is employable, on the other hand Government of India
targets to guarantee elementary education to every child between the ages
of 6 to 14 years, and improved higher education also, which needs to
increase access to education as well as improve the quality of education. It
is argued that due to lack of funds investments in public funded institutions

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is being reduced and it is not possible to increase the number of state

funded universities and colleges.2

Therefore FDI in higher education would solve this problem. Another

argument is that since a large number of Indian students go abroad for
higher education, by allowing foreign educational institutions opening their
campuses in the country will arrest the outflow of Indian students. As a
result, a relatively larger number of Indian students would be able to access
quality higher education in the country itself which would be relatively much
less expensive in terms of fees, travelling costs and living expenses
abroad. So Government of India is actively doing some legislative attempts
and taking executive action to promote commercialization and privatization
of education. In this paper discussion have been made on historical
overviews, what does our constitution says? Up to what extent it is
permissible and impact of this phenomenon in Indian context and judicial
response.

MEANING

According to the dictionary meaning the word 'commercialize'

means: To render commercial, make a matter of trade or the subject to
commercialism. To apply commercial or business method, to make use of,
or exploit mainly for profit, especially at the expense of quality, or to imbue
with commercialism. Thus the word commercialization shows the profit as
the main motive behind any activity.3

2 (i) Jain M.P., Indian Constitutional Law , Nagpur Lexis NexisButerworths, 2010.

3 [2]The Oxford English dictionary, Second edition, 1989, 553

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The term education has been defined as- the process of developing
and training the powers and capabilities of human beings. Thus if there is
sale of services or profit motive behind imparting of education or funds
come mainly from the receivers of education, we can easily say that there
is commercialization of education.

What does our C onstitution s ays ?

Indian Constitution is known to be a document committed to social

justice. Whatever there were no any provision expressly guaranteed right to
education as a fundamental right but still there are certain provision in
Indian Constitution having a bearing on education before Art. 21-A but
when we go through our Constituent Assembly debate, we see the maker
of Constitution did not recognized right to education as a fundamental right.

CONSTITUTIONAL PROVISION

In India Constitution there are certain provision of the Constitution of

India having a bearing on education.

Part III - Fundamental Rights -

Article 15, Article 21A, Article 30

Part IV - D.P.S.P -

Article 32(2), Article 41, Article 45, Article 46

Part IV A - Fundamental duties -

Article 51 (A), Article 51 (A) (k)

Part XI - Relation between Union and State

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have power to make laws for education, including technical education,

medical education and university. 4

The centre-state relationship, looking to the above set up, gives

centres the dominant position. The important or essential aspects of
education are with the Centre and the residue is left to the states.

R ES PONSE OF JUDICIARY

Mohit Jain's case the Supreme Court rightly said as

"We hold that every citizen has a "right to education" under the
Constitution. The State is under an obligation to establish educational
institutions to enable the citizens to enjoy the said right. The State may
discharge its obligation through state owned or state-recognized
educational institutions. When the State Government grants recognition to
the private educational institutions it creates an agency to fulfill its
obligation under the Constitution. The students are given admission to the
educational institutions- whether state-owned or state-recognized- in
recognition of their "right to education" under the Constitution. Charging
capitation fee in consideration of admission to educational institutions, is a
patent denial of a citizen's right to education under the Constitution."

In St. Stephen College vs. University of Delhi. The Court expressly

rejected the argument that every citizen has a fundamental right to
establish an educational institution as a right under Article 19(1)(g).

Then comes T.M.A. Pai Foundation case: In this case the Judges
agreed that establishing an educational institution is not any trade,

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profession or business, but they held that it is an "occupation" within the

meaning of Art. 19(1)(g) of the Constitution. They said that it is "occupation"
i.e., an activity of a person undertaken as a means of livelihood or mission
of life.

Of course, they repeat that there can be no caption fee and

profiteering (without realizing what they had said earlier). Again it is said:
"………The occupation of education is in a sense, regarded as
charitable……." And "……..To put it differently, in the establishment of an
educational institution, the object should not be to make a profit, inasmuch
as education is essentially charitable in nature. There can, however, be a
reasonable revenue surplus, which may be generated by the educational
institution for the purpose of development of education and expansion of
the institution."

In the meanwhile the Supreme Court in the Islamic Academy case

(2003) tried to introduce a system of checks and balances, to regulate the
hyper commercialization of professional education. It has directed the State
Governments to set up a committee headed by a retired High Court Judge
and including a Chartered Accountant and representatives of the Central
and State Agencies in the field to assess the colleges and prescribe a fee
structure commensurate with the infra-structure and academic facilities
provided by them. For admissions, the apex court has fixed a 50:50 seat
sharing formula for the government and the management quotas, but filled
through a common entrance test and selection process. While allowing the
States to fix a quota for the private minority institutions, the Court has
recognized the 'preferential right' of these institutions to accord priority in
admission to students from their communities. There is two other clear

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directions from the Bench: admissions must be based on merit and through
a common entrance test; and provision must be made for quotas for the
poor and the backward.

Though the Supreme Court verdict in the case of Unni Krisnan v.

State of Andhra Pradesh did not cover the Government and Government
aided institutions the government feels inspired enough to go ahead with
the system of payment seats. What the Supreme Court had directed the
UGC to do was to frame regulations for determining fees which can be
charged by unaided affiliated colleges.

In Pradeep Jain v. Union of India the Supreme Court recognizing the

right to education observed that anyone, anywhere in India was entitled to
have equal chance for admission to any educational course for his cultural
growth, training facility speciality, speciality or employment. In Bandhua
Mukti Morcha v. Union of India the Supreme Court was confronted with
meaning of "human dignity". The court laid down basic constituent of
human dignity which included the right to get education facilities as well.
Bhagwati, J. Observed:

The right to live with human dignity enshrined in Article 21 derives its
life, breadth from the Directive Principles of state Policy and
particularly……Articles 41…Therefore it must include……Educational
facilities……

In D.S. Nakara v. Union of India a constitution Bench of the Supreme

Court while explaining the significances of the addition of the expression
"socialist" in the preamble of our Constitution pointed out,

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During the formative years. Socialism aims at providing all opportunities for
pursuing the educational activity……There will be equitable distribution of
national cake……

The present judgment brings a dimensions in the field of education;

the transformation from capitalist to the Socialist approach in the education.

In cases like Pradeep Jain, Bandhua Mukti Morcha, D.S. Nakara the
court emphasized upon the right to education but in these cases the
opinion of the court was merely an obiter dicta, hence they had no binding
effect.

The Unni Krishnan judgment recognized that the cost of education

may vary, even within the same faculty, from institution to institution. The
facilities provided, equipment, infrastructure, standard and quality of
education may vary from institution to institution. But the scheme was
evolved by the court in disregard of this observation and imposed the same
free structure for all colleges irrespective of the variation in operating costs
from college to college.

The inefficiency and corruption of state governments exposed and

compounded the weaknesses of the scheme laid down by the court.

The court deleted the requirement of Bank guarantee or cash deposit

as directed in Unni Krishnan case. This was made effective for both
minority as well as "non-minority" professional colleges.

It is submitted that the fee structure approved by the Supreme Court

for professional courses led to the commercialization of education in
professional courses. The effective judicial decision can be better

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appreciated taking any state where unaided private professional colleges

exist.

In 1993 a Unni Krishan's case the Supreme Court held that privately
unaided colleges were legally bound to provide heavily subsidized
professional education to students qualifying under Common Entrance
Tests (CET). It further laid out an elaborate scheme under which top
ranking students would be admitted at low tution fee.

In TMA Pai Foundation vs. State of Karnataka the Supreme Court

ruled against the prevalent practice of State Governments. The common
practice is of appropriating more than 60-85 per cent of the seats in the 327
medical and 1345 engineering colleges across the country which are
privately promoted and unaided. These seats are then allotted to students
topping common Entrance Tests.

However this view was reversed by the Supreme Court in Islamic

Academy vs. Union of India which directed all State Governments to
constitute separate admissions and fees fixation committees headed by
retired high court judges.

However, in PA Inamdar vs. State of Maharashtra, Supreme Court

(2005) the case was upheld and reaffirmed the 11 judge bench judgement
in TA Pai Foundation mentioned above. This turned the political class
against the judicial order andunited them in bringing for the formulation of a
draft 'Private Professional Education Institutional (Regulation of Admission
and Fixation of Fees) Bill of 2005 whose purpose has been to nullify the
judgement of Supreme Court in the TA Pai case.

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There is a definite clash between the judiciary which is taking into

account the constituional provision with regard to education and the
legislative along with the executive which wants to appropriate the private
non-aided education without putting in any budgetary funds.

We sum up by saying that the whole problem of commercialization of

education is complex and complicated. However, it is also related to
demand for job oriented degrees. It should be discouraged. Course
curriculum should be devised in such a way that education starts with
earning. Earning and learning must go together it will lead to development
which can be called as sustainable development.

The Right to Education Act

In the year 2009 a law to facilitate the realization of the fundamental

right to education was passed by the Parliament by way of the Right of
Children to Free and Compulsory Education Act (RTE). The right to
education has finally become a fundamental right by giving effect to the Act
on April 1st, 2010. The Act mandates the Government to provide education
to every child up to the eighth standard, free of cost, irrespective of class
and gender.

Therefore to put it briefly the RTE Act provides for the following:

1. Children, who have either dropped out from schools or have never been
to any educational institution, will be enrolled in the schools with no
school refusing admission to any child.

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2. Private institutions have to reserve 25 per cent of seats from children

from weaker sections of society.
3. Neighborhood schools will be identified by a system of school mapping,
and children of six and above who are not in schools will be identified by
local authorities or school management committees.
4. All such schools are required to be recognized failing which they shall
be penalized for up to Rs. 1 lakh.
5. No child can be held back, expelled and required to pass the board
examination till the completion of elementary education.
6. It also provides for adequate number of qualified teachers to maintain a
ratio of one teacher for every 30 students.
7. Schools have to ensure proper infrastructure, which includes a
playground, library, adequate number of classrooms, toilets, barrier free
access for physically challenged children and drinking water facilities
within three years.
8. 75 per cent members of the school management committees will
comprise parents of the students who will monitor the functioning of the
schools and utilization of grants.

EFFECT OF COMMERCIALIZATION

(A) Positive Aspects

There are a number of positive aspects of commercialization of

higher education:

1. The increasing demand for better quality higher education in India can
be met only by Private Institutions complementing the Universities

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established by the State. The proportion of students opting for higher

education in India is increasing at a rapid rate and the only feasible way
out is the privatization of the educational system.

2. The Government with the Constitutional obligation to provide free and

compulsory Primary Education, has increased the investment in
Primary Education, as a result of which, the investment in higher
education has proportionately decreased. In order to meet the growing
needs of the student population for higher education in the country, it is
animperative for the Government to privatize higher education.

3. In case of Private Universities, there would be minimal or practically no

political intervention. This would be beneficial for the Universities in
terms of being independent. The Hob'ble Supreme Court held that 'in
professional institutions, as they are unaided, there will be full autonomy
in their administration, but the principle of merit cannot be sacrificed, as
excellence in education is in national interest'. The Universities would
try and implement new techniques, which would have otherwise been
impossible without the permission of the State.

4. Private Colleges that are affiliated to the Universities are independent

as far administration is concerned. In case of Colleges established by
the State, there may be unethical practices. There are innumerable
cases which involve unethical practices in Government Colleges in
India and many of them in the recent past. Private Colleges affiliated to
Universities would run the risk of being stripped of their affiliation if they

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