The right to education arc: Mohini Jain and Unni Krishnan

The right to education in India was constitutionalised in two steps over a seven-month span between July 1992 and February 1993. Mohini Jain v. State of Karnataka, (1992) 3 SCC 666, a two-judge bench decision authored by Justice Kuldip Singh on 30 July 1992, read the right to education out of Article 21 in conjunction with the Directive Principles in Articles 38, 39, 41 and 45 and struck down the Karnataka notification permitting capitation fees in private medical colleges. The judgment recognised the right in absolute terms — "the right to education flows directly from the right to life" — and held that the State carries a positive obligation to provide educational facilities at all levels. Private institutions performing this function were treated, on the Mohini Jain analysis, as agents of the State.

The reasoning was bold but, in the view of the bar and of several State governments, doctrinally overbroad. A five-judge Constitution Bench was constituted to re-examine the question. Unni Krishnan, J.P. v. State of A.P., (1993) 1 SCC 645, decided on 4 February 1993, refined Mohini Jain. The Bench — Chief Justice L.M. Sharma and Justices S.R. Pandian, S. Mohan, B.P. Jeevan Reddy and S.P. Bharucha — held that the right to education does flow from Article 21 but that its content is shaped by the Directive Principles in Articles 41, 45 and 46 and is not absolute. The Bench bifurcated the content: free and compulsory education up to the age of fourteen is enforceable as a fundamental right; education beyond that age is subject to the State's economic capacity.

The two-step articulation set the constitutional frame from which the entire downstream architecture proceeds. The 86th Constitutional Amendment Act, 2002 inserted Article 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" — codifying the Unni Krishnan bifurcation at the upper limit. The Right of Children to Free and Compulsory Education Act, 2009 gave operational form to Article 21A. Society for Unaided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1 — a three-judge bench by 2:1 majority of Chief Justice S.H. Kapadia and Justice Swatanter Kumar, with Justice K.S. Radhakrishnan dissenting — upheld the RTE Act's 25% reservation in private unaided schools but excluded minority unaided. Pramati Educational and Cultural Trust v. Union of India, (2014) 8 SCC 1, upheld both the 86th and the 93rd Amendments and confirmed that Article 15(5) does not extend to minority institutions.

The two judgments are taken together in this piece because they form a single doctrinal articulation. Mohini Jain was the bold first step; Unni Krishnan was the operative refinement; the combined two-step is the canonical reference for the constitutional right to education in India.

The statutory and constitutional architecture

The doctrinal field on the eve of Mohini Jain was framed by three constitutional clauses and one statutory backdrop.

Article 21 protects life and personal liberty against deprivation other than according to procedure established by law. Maneka Gandhi v. Union of India, (1978) 1 SCC 248, had transformed Article 21 from a procedural shield into a substantive guarantee, and the post-Maneka jurisprudence had read into it a series of unwritten rights — environment, legal aid, livelihood. The question whether the right to education was among them had been raised in earlier cases but not authoritatively answered.

The Directive Principles in Articles 41, 45 and 46 are addressed to the State and are, by Article 37, not enforceable by any court — but they are "fundamental in the governance of the country" and inform the interpretation of fundamental rights. Article 41 requires the State to make effective provision for education within the limits of its economic capacity; Article 45 (as it stood pre-86th Amendment) required the State to endeavour to provide free and compulsory education for all children until the age of fourteen; Article 46 requires the State to promote the educational interests of the weaker sections.

The statutory backdrop was the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984 and the Karnataka Notification dated 5 June 1989 which had permitted private medical colleges to charge differential fees structured along a "non-Karnataka student" axis. The Mohini Jain facts arose from that notification.

Mohini Jain v. State of Karnataka (1992)

Factual matrix

Mohini Jain was a candidate from Meerut who sought admission to a private medical college in Karnataka. The college demanded a capitation fee — a one-time payment unrelated to the regular tuition fee and operating in the underground economy of private professional education. The petitioner challenged the Karnataka notification under which the college's fee structure had been notified and sought a declaration that the capitation fee was unconstitutional.

The matter came before a two-judge bench of Justice Kuldip Singh and Justice R.M. Sahai. The judgment was authored by Justice Kuldip Singh on 30 July 1992.

Holding

The Bench held, first, that the capitation fee charged by private professional colleges was arbitrary and violative of Article 14. The fee was structured to extract money from candidates without reference to merit or to any rational classification; the structure failed the reasonable-classification test.

Second — and this is the doctrinally consequential move — the Bench held that the right to education is a fundamental right flowing from Article 21 read with the Directive Principles in Articles 38, 39(a), 39(f), 41 and 45. The right to life, the Bench reasoned, cannot be assured in any meaningful sense without the right to education; the dignity of the individual, the social order envisaged by the Preamble and the obligations placed on the State by the Directive Principles all converge on the conclusion that education is among the entitlements that Article 21 protects.

Third, the Bench held that the State carries a positive obligation to provide educational facilities at all levels. The obligation is not confined to the elementary stage; it extends to higher education and to professional education. Private institutions performing this function — including private medical colleges — were treated as agents of the State and were subject to the same constitutional restraints that bound the State.

Fourth, the Karnataka notification permitting the capitation fee structure was struck down.

Significance

The significance of Mohini Jain is in the constitutional move — the location of the right to education within Article 21. The judgment was the first Supreme Court ruling to make that location explicit, and it did so in unhedged terms. The bolder propositions — that the right to education extends to all levels including professional education, and that private institutions perform a State function and are subject to State-style constitutional restraints — were the propositions that would, seven months later, draw the Unni Krishnan Bench's refining attention.

The judgment also struck the first authoritative blow at capitation fees. The capitation-fee structure had operated for years in the underground of private professional education; the Mohini Jain striking-down created the constitutional basis for the subsequent State and central regulatory regimes.

Unni Krishnan v. State of A.P. (1993) — the refinement

Factual matrix

Unni Krishnan and a clutch of connected matters arose from challenges by private medical and engineering colleges in Andhra Pradesh and Karnataka to State regulatory regimes that had been put in place — or proposed — in the wake of Mohini Jain. The challenges raised the constitutional question of whether the unhedged Mohini Jain holding could be sustained. If education was a fundamental right at all levels, did the State carry an obligation to provide professional education on demand? Could private professional institutions be compelled to admit students on terms set by the State?

A five-judge Constitution Bench was constituted to re-examine the issue. The Bench heard the matter over several days; the judgment was reserved and delivered on 4 February 1993.

Holding (refined Mohini Jain)

The lead judgment was authored by Justice B.P. Jeevan Reddy for himself and Justice S.R. Pandian; Justice S. Mohan delivered a separate concurring opinion. Chief Justice L.M. Sharma and Justice S.P. Bharucha concurred on the operative disposition but partly differed on the breadth of the fundamental-right articulation. The Bench was unanimous on the disposition; the doctrinal reasoning was not fully unanimous, and the Jeevan Reddy opinion is conventionally taken as the operative articulation.

First, the Bench affirmed the Mohini Jain location of the right to education in Article 21 but refined the location by reading Article 21 together with the Directive Principles in Articles 41, 45 and 46. The right exists; its content is shaped by the Directive Principles; and the Directive Principles themselves are textured by the State's economic capacity.

Second — and this is the most consequential refinement — the Bench bifurcated the content of the right. Free and compulsory education up to the age of fourteen is enforceable as a fundamental right. The constitutional source for this proposition is the conjunction of Article 21 and the Article 45 directive that the State endeavour to provide free and compulsory education for children up to that age. Education beyond the age of fourteen — including higher education and professional education — is subject to the State's economic capacity and is not enforceable as a stand-alone fundamental right entitlement.

Third, the Bench held that education is not a "trade, business or profession" within Article 19(1)(g) in the strict commercial sense. The institution-builder may run an educational institution; the institution may charge fees and may operate a reasonable surplus; but education is not a commercial trade and is not subject to the freedom-of-trade analysis that governs ordinary commercial enterprises. (This proposition would, nine years later, be the proposition that the eleven-judge Bench in T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 re-examined and re-stated — locating the right in the occupational freedom of Article 19(1)(g).)

Fourth, the Bench held capitation fees unconstitutional under Articles 14 and 21. The Mohini Jain striking-down was affirmed and extended.

"Free seats + payment seats" scheme

The most operationally consequential part of the Unni Krishnan judgment was the admission scheme that the Bench imposed on private unaided professional institutions. The scheme operated on a cross-subsidy logic.

Approximately fifty per cent of the seats in a private unaided professional college were to be designated as "free seats" — filled on merit by candidates who paid only the nominal tuition fee that the State had fixed. The remaining approximately fifty per cent were "payment seats" — filled on merit from candidates willing to pay the higher fee structure that the institution had been permitted to charge. The cross-subsidy was the mechanism by which the lower-fee "free seat" candidates were funded.

A small percentage of seats — broadly capped at fifteen per cent — was permitted as an "NRI quota," subject to higher fees but still to merit-based selection within that cohort. The capitation route was foreclosed.

The scheme was the operative regulatory framework for private unaided professional admissions for the next nine years. It was the scheme that the eleven-judge Bench in T.M.A. Pai (2002) would overrule in its application to private unaided professional institutions — on the basis that the cross-subsidy scheme rested on the Mohini Jain / Unni Krishnan premise that private institutions perform a State function, and that the relocation of the right to establish an institution in Article 19(1)(g) removed that premise.

The combined doctrinal contribution

The combined Mohini Jain / Unni Krishnan articulation contributes to Indian constitutional law on four axes.

Constitutional location. The right to education is located in Article 21. The location had been hinted at in earlier cases but had not been authoritatively made. Mohini Jain makes the location; Unni Krishnan refines the content.

Bifurcation. The content of the right is bifurcated. Free and compulsory education up to the age of fourteen is enforceable as a fundamental right; education beyond that age is shaped by the State's economic capacity. The bifurcation is the doctrinal scaffold on which the 86th Amendment's Article 21A — confined to the age range of six to fourteen — is built.

Capitation-fee prohibition. The capitation-fee structure that had operated in the underground of private professional education is held unconstitutional under Articles 14 and 21. The prohibition has been the constitutional basis for the subsequent State and central regulatory regimes against capitation.

Regulatory architecture for private unaided professional institutions. The Unni Krishnan free-seats / payment-seats scheme was the operative regulatory framework for nine years. Although overruled by T.M.A. Pai in 2002 in its application to private unaided professional institutions, the scheme's analytical structure — that the State has a regulatory interest in transparent merit-based admissions and in the prevention of capitation — survives in the post-T.M.A. Pai / Inamdar framework.

What the cases did not decide

Several questions were either left open or addressed obliquely.

The application of the right-to-education framework to school-level institutions. Both judgments were framed in the context of higher and professional education. The application to school-level institutions was worked out in the post-RTE Act line.

The interaction with minority institutional rights under Article 30(1). The judgments did not separately analyse the interaction between the right-to-education framework and Article 30(1). The interaction would be worked out in T.M.A. Pai (2002), P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537, Society for Unaided Private Schools (2012) and Pramati Trust (2014).

The State's regulatory mechanism for fee fixation in private unaided institutions in the long term. The Unni Krishnan scheme provided one framework; the operational details were not fully specified. The subsequent regulatory architecture went through several iterations before settling, post-Inamdar, on the State-committee model of Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697.

The application to private aided institutions. Both judgments were primarily concerned with private unaided professional institutions. The four-fold typology — aided/unaided × minority/non-minority — that organises the field would be installed by the eleven-judge Bench in T.M.A. Pai.

The downstream arc

The downstream arc from the combined Mohini Jain / Unni Krishnan articulation is the most consequential constitutional-rights arc in the field of education in India.

The 86th Constitutional Amendment Act, 2002. The Amendment inserted Article 21A, codifying the Unni Krishnan bifurcation at the upper limit — "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." The Amendment also substituted Article 45 (which had previously addressed the entire 0-14 age range) so that the redrafted Article 45 now directs the State to provide early childhood care and education for children below the age of six. The lower limit of the Article 21A enforceable right thus rests at six; the directive principle covers the below-six range.

The Right of Children to Free and Compulsory Education Act, 2009. Enacted on 4 August 2009 and brought into force on 1 April 2010, the RTE Act operationalised Article 21A. The Act imposed a series of obligations on the State and on private unaided schools — most notably the 25% reservation in private unaided schools for children from disadvantaged groups and weaker sections under section 12(1)(c) of the Act.

Society for Unaided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1. A three-judge bench by 2:1 majority — Chief Justice S.H. Kapadia and Justice Swatanter Kumar in the majority, Justice K.S. Radhakrishnan in dissent — upheld the RTE Act's 25% reservation in private unaided schools but held that it did not apply to minority unaided institutions. The majority reasoning rested on the proposition that the State's regulatory reach under Article 21A extends to private unaided schools as a class but that the Article 30(1) protection insulates minority unaided institutions from compelled admission of non-minority children even under the Article 21A framework.

Pramati Educational and Cultural Trust v. Union of India, (2014) 8 SCC 1. A five-judge Constitution Bench upheld both the 86th and 93rd Amendments and confirmed that Article 15(5) — the 93rd Amendment provision enabling reservation in private unaided non-minority institutions — does not apply to minority institutions. The Pramati judgment thus extended the Society for Unaided Private Schools approach to higher education and confirmed the post-Inamdar / post-T.M.A. Pai architecture in respect of the minority exception.

What practitioners take

For constitutional challenges in the education field. The combined Mohini Jain / Unni Krishnan articulation is the foundational reference. The starting point is the Article 21A enforceable right for the six-to-fourteen age range and the Article 41 / 46 directive principle scope for the higher-education range. Litigation on the elementary right operates within the RTE Act framework; litigation on the higher-education side operates within the T.M.A. Pai / Inamdar / Article 15(5) architecture.

For the capitation-fee challenge. The Mohini Jain / Unni Krishnan striking-down of capitation under Articles 14 and 21 is the constitutional source. State and central legislation — including the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984 and analogous State enactments — operationalises the constitutional prohibition. A challenge to capitation must engage with both the constitutional source and the relevant statutory framework.

For the application of the Unni Krishnan scheme. The free-seats / payment-seats scheme has been overruled by T.M.A. Pai in its application to private unaided professional institutions. For aided institutions, the Unni Krishnan analytical structure — cross-subsidy, merit-based selection, prohibition of capitation — retains some traction.

For the right-to-education arc as a whole. The two-step articulation, the 86th Amendment and Article 21A, the RTE Act, Society for Unaided Private Schools and Pramati Trust form a single constitutional architecture. A complete brief on educational rights must engage with the full arc.

For the minority institutional exception. Both Society for Unaided Private Schools and Pramati Trust preserve the minority institutional exception — Article 21A and Article 15(5) do not extend to minority unaided institutions. The constitutional source for the preservation is Article 30(1) and the Inamdar re-ordering of the Article 29(2) / Article 30(1) interaction. The exception is doctrinally stable and operationally consequential.

Related editorial pieces

• T.M.A. Pai Foundation: the eleven-judge re-architecture of minority educational autonomy
• P.A. Inamdar and the seven-judge reaffirmation of unaided institutional autonomy
• Maneka Gandhi v. Union of India and the substantive transformation of Article 21
• Kesavananda Bharati: the basic-structure doctrine and the limits of constitutional amendment
• Janhit Abhiyan v. Union of India: the EWS judgment and the extension of reservation architecture