Right to education and the commercialisation of education

Indian Constitutional Law - New Challenges · Unit III · Topic 13 of 21 · 6 min read

How education moved from a directive to a fundamental right through Mohini Jain, Unni Krishnan and Article 21A, the RTE Act's reach into private schools, and the line of cases from T.M.A. Pai to Modern Dental College on fees, capitation and the profit motive.

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On this page

1. From directive principle to fundamental right
2. The RTE Act and private schools
3. Professional education: from Pai to Modern Dental
4. Quality, safety and the limits of a right
5. Comparative and international
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. The syllabus joins two questions. First, how did education become a fundamental right, and how far does that right reach? Second, once private institutions became the main providers of higher and professional education, how has the law dealt with fees, capitation and profiteering? The cases run in two lines, school education (Article 21A and the RTE Act) and professional education (Article 19(1)(g) and fee regulation), and Article 15(5) joins them.

1. From directive principle to fundamental right

The original Article 45 asked the State to provide free and compulsory education for all children up to fourteen within ten years. That deadline passed unmet.
Mohini Jain v. State of Karnataka, 1992 INSC 186: the right to education flows from the right to life with dignity under Article 21, and charging a capitation fee for admission is arbitrary and denies that right.
Unni Krishnan v. State of Andhra Pradesh, 1993 INSC 40: the right is a fundamental right up to the age of fourteen; beyond that it is subject to the State’s economic capacity under Article 41. The Court also framed a scheme for private professional colleges (half the seats free, half on payment).
The Eighty-sixth Amendment, 2002 inserted Article 21A (free and compulsory education for children from six to fourteen, in the manner the State by law determines), rewrote Article 45 to cover early childhood care up to six, and added a parental duty in Article 51A(k). The Right of Children to Free and Compulsory Education Act 2009 came into force on 1 April 2010.

2. The RTE Act and private schools

Section 12(1)(c) of the RTE Act requires private unaided schools to admit children from weaker sections and disadvantaged groups to at least a quarter of their entry-level seats, with reimbursement by the State.

Society for Unaided Private Schools of Rajasthan v. Union of India, 2012 INSC 169: the obligation is a reasonable restriction on the right to run a school under Article 19(1)(g) and is valid for unaided non-minority schools, but not for unaided minority schools.
Pramati Educational and Cultural Trust v. Union of India, 2014 INSC 362: a Constitution Bench upheld Article 15(5) and Article 21A, but held that the RTE Act cannot be applied to minority schools, aided or unaided, because it would destroy their character under Article 30(1). Critics point out that this gave non-minority schools an incentive to seek minority status.

3. Professional education: from Pai to Modern Dental

The Unni Krishnan scheme was overturned by an eleven-judge Bench in T.M.A. Pai Foundation v. State of Karnataka (2002). The holdings that matter here are:

establishing and administering an educational institution is an “occupation” under Article 19(1)(g);
private unaided institutions have autonomy in admissions and fee-fixing, subject to merit-based admission and to regulation against profiteering;
a reasonable surplus for development is allowed, but capitation fees are not.

Islamic Academy of Education v. State of Karnataka, 2003 INSC 391, read Pai to permit committees headed by retired judges to approve fees and supervise admissions. P.A. Inamdar v. State of Maharashtra, 2005 INSC 358, a seven-judge Bench, held that the State cannot impose reservation or its own quota on unaided institutions, minority or non-minority, but upheld common entrance tests and fee regulation to prevent profiteering.

Parliament answered Inamdar within months with the Ninety-third Amendment, 2005, inserting Article 15(5), which permits special provisions for socially and educationally backward classes, Scheduled Castes and Scheduled Tribes in admission to educational institutions, including private unaided ones, other than minority institutions. Ashoka Kumar Thakur v. Union of India, 2008 INSC 473, upheld it for State-maintained and aided institutions, leaving the unaided question open; Pramati (2014) upheld it for unaided institutions too. The 103rd Amendment added Article 15(6) for the economically weaker sections, upheld by majority in Janhit Abhiyan v. Union of India, 2022 INSC 1175.

In Modern Dental College and Research Centre v. State of Madhya Pradesh (2016) a Constitution Bench upheld a State law regulating admissions and fees in private medical and dental colleges. Education, the Court said, is in the nature of charity and not a trade or business; the occupation in Article 19(1)(g) can be regulated under Article 19(6) to stop commercialisation, and a common entrance test is a reasonable restriction. The national entrance examination for medicine (NEET) was later upheld for minority institutions as well in Christian Medical College, Vellore Association v. Union of India (2020).

The commercialisation debate. One view holds that private capital was necessary because the State could not fund the expansion of higher education, and that the courts rightly protected autonomy in Pai. The other holds that the law created a market in seats, with capitation disguised as “development fees”, management quotas and an unregulated coaching industry, so that access to professional careers depends on wealth. The arc of the case law, from Pai’s autonomy to Modern Dental’s “charity, not business”, is a move towards the second view, and Article 15(5) is Parliament’s attempt to use private institutions for equality as well. The National Education Policy 2020 keeps the requirement that higher education institutions be not-for-profit.

4. Quality, safety and the limits of a right

The RTE Act fixes norms for teachers, infrastructure and pupil-teacher ratios, bans screening procedures and capitation at the school level, and its no-detention policy was diluted by a 2019 amendment allowing States to hold back children in Classes 5 and 8. Enrolment has risen sharply, but surveys of learning outcomes show that many children in school cannot read or calculate at their grade level, which suggests that a right to attend school is not yet a right to learn. Courts have extended the right to safe premises (Avinash Mehrotra v. Union of India, 2009 INSC 489, after the Kumbakonam school fire).

5. Comparative and international

Article 13 of the International Covenant on Economic, Social and Cultural Rights requires primary education to be compulsory and free, and secondary and higher education to be made progressively free; Article 28 of the Convention on the Rights of the Child is to the same effect.
The US Constitution has no right to education: San Antonio Independent School District v. Rodriguez (1973) refused to treat unequal school funding as a violation of equal protection, though Brown v. Board of Education (1954) prohibits segregation.
Article 2 of Protocol No. 1 to the European Convention states that no person shall be denied the right to education, and requires respect for parents’ religious and philosophical convictions.
South Africa’s Constitution (section 29) gives an immediately enforceable right to basic education, unlike the progressively realised rights to housing and health.

How this is examined

Essays: “right to education: from directive principle to fundamental right”; “commercialisation of education and its impact”; the RTE Act and private schools. Short notes: Article 21A, capitation fee, T.M.A. Pai, Article 15(5), section 12(1)(c). For a combined question, use section 1, then sections 3 and the commercialisation debate, and end with the comparative point. For minority institutions under Article 30, see the note in Unit IV.

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