Education is at the base of all types of human development and progress. Education is said to be the sharpest weapon and strongest shield against all human problems. Human life becomes meaningless in the absence of education. It is through education, that we acquire knowledge and skills which enable us to lead a fruitful life. India is a democratic country and justice, equality and liberty are the guiding principles of our Constitution.

You will agree with the opinion that to deprive someone of the right of obtaining education is a gross injustice, and hence, universalization of at least primary education is of prime importance in a democratic and secular country like ours.

Right to set up educational institutions is a fundamental right:

With regard to the establishment of educational institutions, three Articles of the Constitution come into play. Article 19(1) (g) gives the right to all the citizens to practice any professions or to carry on any occupation, trade or business; this right is subject to restrictions that may be placed under Article (19) (6). Article 19(1) (g) employs four expressions, viz., profession, occupation, trade and business.

Their fields may overlap, but each of them does have a content of its own. Education is per se regarded as an activity that is charitable in nature. Education has sofar not been regarded as a trade or business where profit is the motive. Even if there is any doubt about whether education is a profession or not, it does appear the education will fall within the meaning of the expression occupation.

In Unni Krishnan vs. State of A.P. (1993) the SC, while referring to education, observed that education may perhaps fall under the category of “occupation” provided no recognition is sought from the State or affiliation from the University is asked that it is a fundamental right. The establishment and running of an educational institution where a large number of persons are employed as teachers or administrative staff, and an activity is carried on that results in the imparting of knowledge to the students, must necessarily be regarded as an occupation, even if there is no element of profit generation.

The right to establish and maintain educational institutions may also be sourced to Art. 26(a) which grants, in positive terms, the right to every religions, denomination or any section thereof to establish and maintain institutions for religious and charitable purposes, subject to public order, morality and health. Education is a recognized head of charity.

In T.M.A Pai Foundation v State of Karnataka (2003) it was held that the phrase private educational institutions would include not only those educational institutions set up by secular persons or bodies, but also educational institutions set up by religious denominations; the word 'private' is used in contradiction to Government Institutions.

Extent of Government control over private educational institutions:

Regulations to ensure that merit is not disregarded, capitation fee is not charged and institutions not run with profit motive may be made by government. But right to reject and otherwise qualified student should not be denied.

The right to establish an educational institution can be regulated but such regulatory measures, must in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by those in change of management. The fixing of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions.

Autonomy of unaided private educational institutions:

The private educational institution have a personality of their own, and in order to maintain their atmosphere and traditions, it is but necessary that they must have the right to choose and select the students who can be admitted to their course of studies.

In the case of an unaided private school maximum autonomy has to be left with the management with regard to administration, including the right of appointment, disciplinary powers, admission of students and the fees to be charged.

Regarding unaided private professional colleges regulation can be required to provide for merit-based admission. Sufficient discretion however should be left with management in admitting students for example, by fixing management quota machinery to ensure that capitation fee is not charged and there is no profiteering by institution.

Fees and capitation fees:

Fees are the life blood of any educational institution. Facilities offered to students, teachers, even contract staff is dependent on the income of a private institution solely by way of fees paid by students at the time of admission and at various junctures through an academic term. Capitation fee is essentially a peculiar concept that has arisen in India due to the commercialization of education. Capitation fee may be defined as a charge of lump sum in lieu of merit, for admission to an educational institution.

It is a charge of capital nature that is not in return for the cost of education actually imparted. It includes any amount by whatever name called, paid or collected directly or indirectly in excess of the prescribed fees. The fine difference between reasonable 'fees' and 'capitation fee' continues to be a point of contention today for the student community and the administrative authorities even though Indian courts and statutory provisions of various education related laws have clearly and unambiguously spelt out the offence of collecting capitation fees and punishment for the same.

In recent years, a very serious situation has arisen because of mushroom growth of private educational institutions, specially engineering, medical and management colleges in certain states, which charge huge sums of donations as capitation fees for admission to various courses of study offered by them. To tackle this evil which have grave deleterious consequences, the parliament through University Grants Commission (Amendment) Act 1997, inserted a new section 12-A, in the UGC Act providing for regulation of fees and prohibition of donations in certain cases.

The whole problems pertaining to capitation fee was considered by the apex court in the case of Mohini Jain vs. State of Karnataka (1989). In this case the petitioner had challenged the validity of notification issued by the government under the Karnataka Educational Institutions (prohibition of Capitation Fee) Act 1984, which was passed to regulate tuition fee to be charged by the private Medical Colleges in the state. Under the notification the tuition fee to be charged from students Karnataka was Rs.60, 000 per annum.

The petitioner was denied admission on the ground that she was unable to pay the exorbitant tuition fee of Rs.60,000 p.a. The court held that the right to education at all level is a fundamental right of citizen under Article 21 of the constitution and charging capitation fee for admission to educational institutions is illegal and amounted to denial of citizen's right to education and also violative of Article 14, being arbitrary unfair and unjust.

In Unni Krishnan vs. State of A.P. (1993) the SC held that it is the lookout of the state including the legislature to prevent commercialization of education and that prohibition of collecting capitation fee has been envisaged by the Act for the purpose of preventing such malady.

Majority of the unaided minority institutions cannot be compelled to charge the same fees as is charged in the government institutions for the simple reason that they have to meet the cost of imparting education from their own resources and the main source can only be the fees collected from the students. Nonetheless, learned Judge deprecated any kind of commercialization of education, and pointed to the reason of collecting exorbitant amount in the name of capitation fee or even other fees.

In T.M.A Pai Foundation v State of Karnataka (2003), on the matter fixing the fees, an Eleven Member Bench of the Supreme Court observed that one cannot lose sight of the fact that providing good amenities to the students in the form of competent teaching faculty and other infrastructure costs money. It has, therefore, to be left to the institution, if it chooses not to seek any aid from the government, to determine the scale of fee that it can charge from the students.

In Islamic Academy of Education v. State of Karnataka (2003), the Supreme Court held that there could be no rigid fee structure fixed by the government. The Supreme Court in this case considered the issue whether educational institutions are entitled to fix their own fee structure and came up with specific answers and recommendations on charge of fee and fee structure in an educational institution.

Similarly, in Modern School v. Union of India (2004), the Supreme Court laid down guidelines to prevent profiteering by private unaided schools in Delhi and blatant commercialisation of education. Huge sums of money sometimes even to the tune of Rs. 8000 per month have been collected as tuition fee and other annual fees by schools towards 'development' which often meant constructing more buildings, financing other schools run by the management and even creating and maintaining swimming pools.

The SC order covers the following points:

1. It empowers government to check private schools in Delhi from charging excessive fees;
    
2. Directs schools to file accounts to Director, Education. The Director is authorized to regulate the fees and other charges to prevent the commercialization of education;
    
3. Private (unaided) schools would have to fulfill their statutory obligation to admit 25% of the students from the economically lower strata to comply with one of the conditions on which they had been allotted land at concessional rates.

It is submitted that in past fifteen years there has been radical changes from rigid to liberal approach of the court on the matter of capitation fee. The journey from Mohini Jain to T.MA. Pai foundation reflects the judicial liberalization, but it is important to note that the capitation fee enable the rich to take admission whereas the poor has to withdraw due to financial inability.

A poor student with better merit cannot get admission because he has no money to apply whereas the rich can purchase the admission. There is, therefore, no escape from the conclusion that charging of capitation fee in consideration of admissions to educational institution is utter violation of our Constitutional provisions.

Conclusion:
The principle that there should not be capitation fee or profiteering is correct. Profiteering does not include reasonable surplus to meet the cost of expansion and augmentation of facilities. The judgment of the court will go a long way in preventing the commercialization of professional education. It makes amply clear that merit alone should be the basis of access to higher education. Though the private college can charge higher fee than Government College but this cannot be done on the cost of merit. As the state does not have enough money to provide facilities for professional education private initiative is bound to play an important role. In the circumstance the court has done to regulate the private activities in order to ensure equality of opportunity to all.