ORIGINAL JURISDICTION : Writ petition (Civil) No. 456 of 1991.
(Under Article 32 of the Constitution on India).
Vijay Pandia and R. Satish for the Petitioner.
Santosh Hegde, R. Jagannatha Gouley, M.K. Dua, K.H. Nobin Singh, Manoj Sarup, C.S. Vaidyanathan, K.V. Mohan, Ms. Anita Lalit and M. Veerappa for the Respondents.
The Judgment of the Court was delivered by
KULDIP SINGH. J. The Karnataka State Legislature, with the object of eliminating the practice of collecting capitation fee for admitting students into educational institutions, enacted the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984 (the Act). The Act which replaces the Karnatatak Ordinance No. 14 of 1983 came into force with effect from July 11, 1983. Purporting to regulate the tuition fee to be charged by the Private Medical Colleges in the State, the Karnataka Government issued a notification dated June 5, 1989 under Section 5(1) of the Act thereby fixing the tuition fee, other fees and deposits to be charged from the students by the Private Medical Colleges in the State. Under the notification the candidates admitted against "Government seats" are to pay Rs.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 Rs.25,000 per annum. The third category is of "Indian students from outside Karnataka", from whom tuition fee not exceeding Rs.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 Rs.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 Rs.60,000 and as a consequence she was denied admission to the medical college. Mohini Jain has alleged that the management demanded a further capitation fee of repees four and a half lakhs but the management has vehemently denied the same.
In this petition under Article 32 of the Constitution of India Miss Mohini Jain has challenged the notification of the Karnataka Government permitting the Private Medical Colleges in the State of Karnataka to charge exorbitant tuition fees from the students other than those admitted to the "Government seats".
Mr. Santosh Hedge learned counsel appearing for the medical college respondent No. 3 has contended that the students from whom higher tuition fee is charged belong to a different class. According to him those who are admitted to the "Government seats" are meritorious and the remaining non-meritorious. He states that classification of condidates into those who possess merit and those who do not possess merit is a valid classification and as such the collegemanagement is within its right to charge more fee from those who do not possess merit. He further states that the object sought to be achieved by the said classification is to collect money to meet the expenses incurred by the college in providing medical education to the students. Mr. C.S. Vaidyanathan, learned counsel appearing for the intervener Karnataka Private Medical Colleges Association has argued that the Private Medical Colleges in the State of Karnataka do not receive any financial aid from either the Central or the State Government. According to him the Private Medical Colleges incur about Rs.5 lakhs per student as expenditure for a 5 year MBBS course. 40% of the seats in these colleges are set part as "Government seats" to be filled by the Government. The students selected and admitted against Government seats pay only Rs.2,000 perannum as such the rest of the burden falls on those who are admitted against management quota. He, therefore, contended that the tuition fee is not excessive and as such there is no question of making any profit by the Private Medical Colleges in the State of Karnataka. Mr. Hegde and Mr. Vaidyanathan have vehemently contended that in order to run the medical colleges the managements are justified in charging the capitation fee. According to them, apart from the act, there is no provision under the Constitution or under any other law which forbids the charging of capitation fee. Finaliy they have relied upon the judgment of this Court in D.P. Joshi v. The 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 of thought, expression, belief, faith and worship". It further provides "equality of status and of opportunity" and assures dignity of the individual. Articles 21, 38, 39(a) (f), 41 and 45 of the Constitution are reproduced hereunder:
"21. Protection of life and personal liberty.-No
person shall be deprived of his life or personal
liberty except according to procedure established
by law."
"38. State to secure a social order for the
promotion of walfare of the people.-(1) The State
shall strive to promote the Welfare of the people
by securing and protecting as effectively as it may
a social order in which justice, social, economic
and political, shall inform all the institutions of
the national life.
(2) The State shall, in particular, strive to
minimise the inequalities in income, and endeavour
to eliminate inequalities in status, facilities and
opportunities, not only amongst individuals but
also amongst groups of people residing in different
areas or engaged in different vocations."
"39. Certain principles of policy to be followed by
the state.-The State shall, in particular, direct
its policy towards securing-
(a) that the citizens, men and women equally, have
the right to an adquate means to livelihood;
(f) that children are given opportunities and
facilities to develop in a hearlthy manner and in
conditions of freedom and dignity and that
childhood and youth are protected against
exploitation and against moral and material
abandonment."
"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
underserved want."
"45. Provision for free and compulsory education
for children.- The State shall endeavour to
provide, within a period to ten years from the
commencement of this Constitution, for free and
compulsory education for all children until they
complete the age of fourteen years."
It is no doubt correct that "right to education"as such has not been guaranteed as fundamental right under Part III of the Constitution but reading the above quoted provisions comulatively it becomes clear that the framers 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 further assures the dignity of the individual. The Constitution seeks to achieve this object by guaranteeing fundamental rights to each individual which he can enforce through court of law if necessary. The directive principles in Part IV of the Constitution are also with the same objective. The dignity of man is inviolable. It is the duty of the State to respect and protect the same. It is primarilty the education which brings-forth the dignity of a man. The framers of the Constitution were aware that more than seventy per cent of the people, to whom they were giving the Constitution of India, were illiterate. They were also hopeful that within a period of ten years illiteracy would be wiped out from the country. It was with that hope that Articles 41 and 45 were brought in Chapter IV of the Constitution. An individual cannot be assured of human dignity unless his personality is developed and the only way to do that is to educate him. This is why the Universal Declaration of Human Rights, 1948 emphasises "Education shall be directed to the full development of the human personality..." Article 41 in Chapter IV of the Constitution recognises an individual’s right "to education". It says that "the State shall, within the limits of its economic capacity and development, make effective provision for securing the right.....to education". Although a citizen cannot enforce the directive principles contained in Chapter IV of the Constitution but these were not intended to be mere pious declarations. We may quote the words of Dr. Ambedkar in that respect:
"In enacting this Part of the Constitution, the
Assembly is giving certain directions to the future
legislature and the future executive to show in
what manner they are to exercise the legislature
and the executive power they will have. Surely it
is not the intention to introduce in this Part
these principles as mere pious declarations. It is
the intention of the Assembly that in future both
the legislature and the executive should not merely
pay lipservice to these principles but that they
should be made the basis of all legislative and
executive action that they may be taking hereafter
in the matter of the governance of the country"
(C.A.D. Vol.VII p.476.)
The directive principles which are fundamental in the governance of the country cannot be isolated from the fundamental rights guaranteed under 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 facilities for reading, writing and expression
oneself in diverse forms, freely
moving about and mixing and commingling with fellow
human beings. Of course, the magnitude and content
of the components of this right would depend upon
the extent of the economic development of the
country, but it must, in any view of the matter,
include the right to the basic necessities of life
and also the right to carry on such funtions and
activities as constitute the bare minimum
expression of the human-self."
In Bandhua Mukti Morcha v. Union of India Ors., [1984] 2 SCR 67, this Court held as under"-
"This right to live with human dignity enshrined in
Article 21 derives its life breath from the
Directive principles of State Policy and
particularly clauses (e) and (f) of Article 39 and
Articles 41 and 42 and at the least, therefore, it
must include protection of the health and strength
of workers men and women, and of the tender age of
children against abuse, opportunities and
facilities for children to develop in a healthy
manner and in conditions of freedom and dignity,
educational facilities, just and humane conditions
of work and maternity relief. These are the minimum
requirements which must exist in order to enable a
person to live with human dignity and no State -
neither the Central Government nor any State
Government - has the right to take any action which
will deprive a person of the enjoyment of these
basic essential."
"Right to life" is the compendious expression for all those rights which the Courts must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. The right to education fiows directly from right to life. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to make endeavour to provide educational facilities at all levels to its citizens.
The fundamental rights guaranteed under Part III of the Constitution of India including the right to freedom of speech and expression and other rights under Article 19 cannot be appreciated and fully enjoyed unless a citizen is educated and is conscious of his individualistic dignity.
The "right to education", therefore, is concomitant to the fundamental rights 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 the attitude of State Goverments
particularly the State Government of Karnataka in
permitting the opening of new Medical Colleges
under various bodies and organisations in utter
disregard to the recommendations of Medical
Council of India and urges upon the authorities and
the Government of Karnataka not to permit the
opening of any new medical college, by private
bodies.
It further condemns the policy of admission on the
basis of capitation fees. This commercialisation of
medical education endangers the lowering of
standards of medical education and encourages bad
practice."
Dr. K.S. Chugh, Chairman, Department of Medicine and Head Department of Nephrology Postgraduate Institute of Medical Education and Research Chandigarh, recipient of Dr. B.C. Rai National Award as ‘eminent medical man for 1991’, in his Presidential Address delivered on January 17, 1992 at the 4th Annual Conference of the Association of Physicians in India held at Patna observed as under:
"In the recent past, there has been a mushroom
growth of
medical colleges in our country. At the time of
independence we had 25 medicaal college which
turned out less than 2000 graduates every year. At
the present time, there are 172 )150 already
functioning and 22 are being established) medical
colleges with an annual turn over of over 20,000
graduates. The Mudaliar Commission had recommended
a doctor-population ratio of 1 : 3500. We have
already achieved a ratio of 1 : 2500. If we take
into account the practitioners of other systems of
medicine who enjoy pay scales and privileges
comparable to those of allopathic doctors, India
will soon have a doctor-population ratio of 1 :
500. Such over production of tehnical man-power
from our medical colleges is bound to lead to
unemployment and frustration. Indeed the unabated
exodus of our professional collegues to other
countries is a direct consequence of these lop-
sided policies.
According to some estimates. India has exported
human capital worth over 51 billion dollars to USA
alone during 1966-88. Currently about 8000 skilled
young men and women are leaving the country every
year. It is high time a blanket ban is imposed on
any further expansion of medical colleges in our
country and a well thought out plan to reduce the
intake into existing institutions is prepared. This
will help to improve the standard of medical
education and health 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 organisations representing the medical profession in this country have unanimously condemned the practice of charging capitation fee as a consideration for admission to the medical college.
We hold that every citizen has a ‘right to education’ under the Constitution. The State is under an obligation to established educational institutions to enable the citizens to enjoy the said right. The State may discharge its obligation through state-owned or state-recognised educational institutions. When the State Government grants recognition to the private educational institutions it creates an agency to fulfil its obligation under the Constitution. The students are givin admission to the educational institutions-whether state-owned or staterecongnised-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.
Indian civilsation recognises education as one of the pious obligations of the human society. To establish and administer educational institutions is considered a religious and charitable object. Education in India has never been a commodity for sale. Looking at the economicfront, even forty five years after achieving independence, thirty per cent of the population is living below provertyline and the bulk of the remaining population is struggling for existence under poverty-conditions. The preamble promises and the directive principles are a mandate to the state to eradicate poverty so that the poor of this country can enjoy the right to life guaranteed under the Constitution. The state action or inaction which defeats the constitutional-mandate is per se arbitary and cannot be sustained. Capitation fee makes the availability of education beyond the reach of the poor. The state action in permitting capitation fee to be charged by state-recognised educational institutions is wholly arbitrary and as such violative of Article 14 of the Constitution of India. During the last two decades the horizon of equality clause has been widened as a result of this Court’s judgments. Earlier the violation of Article 14 was judged on the twin t ests of classification and nexus. This Court in E.P. Royappa v. State of Tamil Nadu and Anr., [1974] 2 SCR 348 gave new dimension to Article 14 in the following words:
"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
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 dimension of Article 14
and pointed out that that Article has highly
activist magnitude and it embodies a guarantee
against arbitrariness....."
The capitation fee brings to the fore a clear class bias. It enable the rich to take admission whereas the poor has to withdraw dur to financial inability. A poor student with better merit canoot get admission because he has no money whereas the rich can purchase the admission. Such a treatment is patently unreasonable, unfair and unjust. There is, therefore, no escape from the conclusion that charging of capitation fee in consideration of admissions to educational institutions is wholly arbitrary and as such infracts Article 14 of the Constitution.
We do not agree with Mr. Hegde that the management has a right to admit non-meritorious candidates by charging capitation fee as a consideration. This practice strikes at the very root of the constitutional scheme and our educational system. Restricting admission to non-meritorious candidates belonging to the richer section of society and denying the same to poor meritorious is wholly arbitrary against the constitutional scheme and as such cannot be legally permitted. Capitation fee in any form cannot be sustained in the eyes of law. The only method of admission to the medical colleges in consonance with the fair play and equity is by ways of merit and merit alone.
We, therefore, hold and declare that charging of capitation fee by the private educational institutions as a consideration for admission is wholly illegal and cannot be permitted.
Mr. Santosh Hegde and Mr.Vaidyanathan learned counsel for respondent 3 and the interverner have relied upon D.P. Joshi v. The State of Madhya Bharat and Anr., (supra) for the proposition that classification of candidates for admission to medical colleges on the basis of residence is permissible. In D.P. Joshi’s case a resident of Delhi was admitted as a student of Mahatma Gandhi Memorial Medial Cellege Indore which was run by the State of Madhya Bharat. His complaint was that the rules in force in the said institution discriminated in the matter of fees between students who were residents of Madhya Bharat and those who were not, and that the latter had to pay in addition to the tuition fee and charges payable by all the students a sum of Rs.1500 per annum as capitation fee and that the charging of such a fee from the students 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 directive principles declared in Part IV of
the Constitution is that the State should make
effective provisions for education within the
limits of its economy. (vide article 41). The
State has to contribute for the upkeep and the
running of its educational institutions. We are in
this petition concerned with a Medical College, and
it is well-known that it requires considerable
finance to maintain such an institution. If the
State has to spend money on it, is it unreasonable
that it should so order the educational system that
the advantage of it would to some extent at least
enure for the benefit of the State? A concession
given to the residents of the State in the matter
of fees is obviously calculated to serve that end,
as presumably some of them might, after passing
out of the College, settle down as doctors and
serve the needs of the locality. The
classification is thus based on a ground which has
a reasonable relation to the subject-matter of the
legislation, and is in consequence not open to
attack. It has been held in the State of Punjab v.
Ajaib Singh and Anr., that a classification might
validly be made on a geographical basis. Such a
classification would be eminently just and
reasonable, where it relates to education which is
the concern primarily of the State. The
contention, therefore, that the rule imposing
capitation fee is in contravention of article 14
must be rejected."
D.P. Joshi’s case is an authority for the proposition that classification on the ground of residence is a justifiable classification under Articles 14 and 15(1) of the Constitution of India. The question that capitation fee as a consideration for admission is not permissible under the scheme of the constitution, was neither raised nor adverted to by this Court. The imposition of capitation fee was also not questioned on the ground of arbitrariness. The only question raised before the Court was that the Madhya Bharat students could not be exempted from the payment of capitation fee. It is settled by this Court that classification on the ground of residence is a valid classification. Subsequently this Court in Dr. Pradeep Jain etc. v. Union of India and Ors. etc., [1984] 3 SCR 942 reiterated the legal position on this point. we are, therefore, of the view that D.P. Joshi’s case does not give us ary guidance on the points before us.
To appreciate the third point it is necessary 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 such
institution:
4. Regulation of Admission to educational
institutions etc. - Subject to such rules, or
general or special orders, as may be made by the
Government in this behalf and any other law for the
time being in force.
(1) (a) the minimum qualification for admission to
any course of study in an educational institution
shall be such as
may be specified by -
(i) the University, in the case of any course study
in an educational institution maintained by or
affiliated to such University:
Provided that the Government may, in the interest
of excellence of education, fix any higher minimum
qualification for any course of study.
(ii) the Government in the case of other courses of
study in any other educational institution;
(b) the maximum under of students that could be
admitted to a course of study in an educational
institution shall be such as may be fixed by the
Government from time to time;
(2)in order to regulate the capitation fee charged
or collected during the period specified under the
proviso to section 3, the Government may, from time
to time, by general or special order, specify in
respect of each private educational institution or
class or classes of such institutions.
(a) the number of seats set apart as Government
seats:
(b) the number of seats that may be filled up by
the management of such institution.
(i) from among Karnataka students on the basis of
merit, on payment of such cash deposits refundable
after such number of years, with or without
interest as may be specified therein, but without
the payment of capitation fee; or
(ii) at the discretion:
Provided that such number of seats as may be
specified by the Government but not less tha fifty
per cent of the total number of seats referred to
in clauses (a) and (b) shall be filled from among
Karnataka students.
Explanation. - For the purpose of this section
Karnataka students means persons who have studied
in such educational institutions in the State of
Karnataka run or recognised by the
Government and for such number of years as the
Government may specify;
(3) an educational institution required to fill
seats in accordance with item (i) of sub-clause (b)
of clause (2) shall form a committee to select
candidates for such seats. A nominee each of the
Government and the University to which such
educational institution is affiliated 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 sub-
section (4), the Government may require any
educational institution to submit their programs or
plans of improvement and development of the
institution for the approval of the Government.
The relevant part of the notification dated June 5, 1989 issued by the Karnataka Government under Section 5 of the Act is reproduced hereunder:
"In exercise of the powers conferred by sub-section
(1) of Section 5 of the Karnataka educational
Institutions (Prohibition of Capitation Fee) Act,
1984, the Government of Karnataka hereby fix the
Tuition Fee and other fees and deposits that may be
collected by the private Medical Colleges in the
State with effect from the academic year 1989-90
and until further orders as follows:
(a) Candidates admitted to seats in Government
Medical Colleges shall be charged a tuition
fee of Rs.2,000 each per annum (Rupees two
thousand only);
(b) Candidates admitted against Government seats
in Private Medical Colleges shall be
charged a tuition fee of Rs.2,000 each
per annum (Rupees two thousand only).
For this purpose "Government seats" shall
mean Government seats as defined by section 2
(e) of the Karnataka Educational
Institutions (Prohibition of Capitation
Fee) Act, 1984;
(c) Karnataka Students (other than students
admitted against Government seats as at
(b) above) admitted by Private Medical
Colleges shall be charged tuition fee not
exceeding Rs.25,000 each per annum
(Rupees Twenty-five thousand only);
(d) Indian Students from outside Karnataka
admitted by Private Medical Colleges
shall be charged tuition fee not
exceeding Rs. 60,000 each per annum (Rupees
Sixty thousand only);
The Act has been brought into existence by the Karnataka State Legislature with the object of effectively curbing the evil practice of collecting capitation fee for admitting students into the educational institutions in the State of Karnataka. The preamble to the Act which makes the object clear is reproduced thereunder
"An Act to prohibit the collection of capitation
fee for admission to educational institutions in
the State of Karnataka and matters relating
thereto;
Where the practice of collecting capitation fee
for admit-
ting students into educational institutions is
widespread in the State;
And whereas this undesirable practice beside
contributing to large scale commercialisation of
education has 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 Rs. 60,000 per annum. Whether Rs. 60,000 per annum can be considered a tuition fee or it is a capitation fee is the question for our determination.
The notification fixes Rs.2000 per annum as the tuition fee for candidates admitted to the seats in Government medical colleges and for the candidates admitted against "Government seats" in private medical colleges. All these seats are filled purely on the merit of the candidates. It is thus obvious that the State Government in fulfilling its obligation under the Constitution to provide medical education to the citizens has fixed Rs. 2000 per annum as tuition fee for the students selected on merit for admission to the medical colleges and also against "Government seats" in private medical colleges. Therefore, the tuition fee by student admitted to the private medical college is only Rs. 2000 per annum. The seats other than the "Government seats" which are to be filled from outside Karnataka the management has been given free hand where the criteria of merit is not applicable and those who can afford to pay Rs. 60,000 per annum are considered at the discretion of the management. Whatever name one may give to this type of extraction of money in the name of medical education it is nothing but the capitation fee. If the State Government fixes Rs.2000 per annum as the tuition fee in government colleges and for "Government seats" in private medical colleges than it is the stateresponsibility to see that any private college which has been set up with Government permission and is being run with Government recognition is prohibited from charging more than Rs. 2000 from any student who may be resident of any part of India. When the State Government permits a private medical college to be set-up and recognises its curriculum and degrees than the said college is performing a function which under the constitution has been assigned to the State Government. We are therefore of the view that Rs.60,000 per annum permitted to be charged from Indian students from outside Karnataka in Para. 1(d) of the notification is not tuition fee but in fact a capitation fee and as such cannot be sustained and is liable to be struck down. Whatever we have said about para 1(d) is also applicable to Para 1(c) of the notification.
Since we have held that what is provided in para 1(d) and 1(c) of the impugned notification dated June 5, 1989 is capitation fee and not a tuition fee it has to be held that 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 nonresident 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 writ petition to that extent, we are not inclined to grant any relief regarding admission to the petitioner. She was not admitted to the college on merit and secondly the course commenced in March-April, 1991 and we see no justification to direct respondent 3 the medical college to admit the petitioner. The writ petition is allowed in the above terms with no order as to costs. V.P.R. Petition allowed.