The Law operating in this field
The specific question that: “How far is it permissible under the Constitution for the State to control and regulate admission and fee in private unaided educational institutions?” has bothered the Supreme Court on a plethora of occasions. The apex court in its wisdom has answered the above-mentioned question although meticulously but has left it open-ended.
The primary and the contemporaneous issue that whether the constitution of India guarantees a fundamental right to education to its citizens was answered in affirmative by the Supreme Court in the case of Unnikrishnan, J.P. v. State of Andhra Pradesh. [1] An eleven judge bench of the Supreme Court for the first time, inter alia addressed the issue of fee structure in detail in the case of T.M.A. Pai Foundation & Ors. Vs. State of Karnataka & Ors. [2] (hereinafter referred to as the Pai Foundation case). A bench of eleven judges was constituted so that it would not be bound by any of their earlier decisions. The fact that merits consideration is that the apex court was divided in its opinion in this case, which gave rise to subsequent questions, arising from the different interpretations by the different High courts.
The apex court was vigilant enough to take into cognizance the ambiguities which had arisen from the aforesaid judgment, hence it constituted a constitution bench comprising of five judges to clarify the doubts which had arisen in the Pai foundation case. The Pai foundation case was elaborated and simplified in the case of Islamic Academy of Education and Anr. Vs. State of Karnataka and Ors.[3] Despite the sincere efforts made by the Supreme Court to clarify the doubts and to answer the questions which had arose subsequent to the Pai Foundation case, the Islamic Academy case had its own lacuna and failed to serve the said purpose.
Finally, in 2007, another bench of the Supreme Court comprising of seven judges in P.A. Inamdar and Ors. Vs. State of Maharashtra and Ors. [4] assembled to clarify the
Pai Foundation case and to address the issues which had cropped up pursuant to the Islamic Academy case. The apex court for the first time delivered a unanimous opinion. The decision in the Inamdar case illuminated several vital aspects which were conducive towards the answering of several questions posed after the Pai Foundation and the Islamic Academy cases.
However, even after the decision in the Inamdar case there are still some doubts or grey areas in relation to the question of extent of State control over the private unaided institutions imparting education. The same conclusion can be derived on perusal of Para 153 of the Inamdar judgment which is being mentioned herein: “153. There are several questions which have remained unanswered and there are certain questions which have cropped up post Pai Foundation and Islamic Academy. To the extent the area is left open, the Benches hearing individual cases after this judgment would find the answers. Issues referable to those areas which are already covered by Pai Foundation and yet open to question shall have to be answered by a Bench of a larger quorum than Pai Foundation. We leave those issues to be taken care of by posterity.”
The same view has been expressed by the Supreme Court in some of the very recent judgments.
In Modern Dental College & Research Centre v. State of M.P.[5] the apex court opined:
“…….Thus, it is evident that even in Inamdar case, it has been observed that there are still some doubts or grey areas in relation to the question of extent of State control over the private unaided institutions imparting professional education.”
The Supreme Court reiterated the above notion vis-à-vis fee structure, in Action Committee, Unaided Private Schools of Delhi v. Director of Education [6] in the following words:
“24. In this context it may be noted that in T.M.A. Pai Foundation Case and in Islamic Academy of Education the principles for fixing fee structure have been illustrated. However, they were not exhaustive. They did not deal with determination of surplus and appropriation of savings.”
The open ended question post Inamdar case is ‘to what degree the State can interfere with respect to private unaided institutions.’

The Mandate of the Constitution and the Reality

Immediately after achieving independence the first task accomplished was the preparation of the Constitution of our country. The constituent assembly passed it on 26th Nov., 1949 and on 26th Jan., 1950 our constitution came into force. Although the Indian constitution is the largest constitution of the world but its basic philosophy is explained in the first few lines, in the form of Preamble, which forms an integral part of our constitution. It is further clarified by adding the words ‘Socialism’, ‘Secularism’ and ‘unity and integrity of the nation’ in the Preamble through the 42nd constitutional amendment in 1976. At present, the preamble stands as--
“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC and to secure to all its citizens-
JUSTICE, social, economic and political;
LIBERTY, of thought, expression, belief, faith and worship;
EQUALITY, of status and of opportunity;
And, to promote among them all
FRATERNITY, assuring the dignity of the individual and the unity and integrity of the Nation”
The preamble clearly states that India is a sovereign and democratic republic and is based on six principles, namely, freedom, equality, fraternity, socialism, secularism and justice. In the beginning seven fundamental rights were accorded to the citizens but through the 44nd constitutional amendment in 1979, the right to property was taken out from the fundamental rights category and was made a legal right .At present the Indian citizens the following six fundamental rights---
 Right to Equality
 Right to Freedom
 Right against Exploitation
 Right to Freedom of Religion
 Right to Education and Culture
 Right to Constitutional Remedies
In the beginning, only fundamental rights were provided for in our constitution but through the 42nd constitutional amendment in 1976, a new article was inserted under Article 51 (A) prescribing ten fundamental duties for every citizen of India. Through 86th constitutional amendment in 2002, eleventh fundamental duty was added to the existing list of the fundamental duties. At present every Indian citizen is expected to perform the following eleven fundamental duties:
"It shall be the duty of every citizen of India: -

(a) To abide by the Constitution and respect its ideal and institutions, the National Flag and the National Anthem;
(b) To cherish and follow the noble ideals which inspired our national struggle for freedom;
(c) To uphold and protect the sovereignty, unity and integrity of India;
(d) To defend the country and render national service when called upon to do so;
(e) To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
(f) To value and preserve the rich heritage of our composite culture;
(g) To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;
(h) To develop the scientific temper, humanism and the spirit of inquiry and reform;
(i) To safeguard public property and to abjure violence;
(j) To strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavor and achievement.
(k)As mother-father or guardian, they should provide opportunity of education to children or dependents in the age group 06-14 years.” In the Indian constitution, the educational provisions are guaranteed and regarded as the fundamental right of the citizens. Many provisions have been made in the Indian constitution to enable the Indian citizens to exercise their Right to Education. The different provisions related to education in the Indian Constitution are as follows:
In the beginning, education was enlisted in the ‘State’ list. It was the responsibility of the respective state governments to organize education within their provincial boundaries. The Central Government’s responsibility was confined to organization of education in union territories; some educational institutions of National Importance and maintaining the standards of technical and higher education. Through the 42nd constitutional amendment in 1976, education was included in the ‘Concurrent’ list. Since then the organization of education has become the joint responsibility of the Central and the state governments.
At present, the Central Government is responsible for formulating the National Education Policy, organizing education in the union territories, establishing co-ordination between facilities for general education, maintaining standards of higher education, development of languages of National Importance and organization of higher education and research institutions of National Importance. The state governments are responsible for the administration of education in their respective states according to the National Education Policy formulated by the Central Government. Thus, the Central Government is running many plans and programmes for expansion of infant and primary education throughout the country besides organization of Kendriya Vidyalayas and Navodaya Vidyalayas in the field of secondary education. At the same time it also provides economic aid to the states to organize any type of education at all levels.
Through the 86th constitutional amendment in 2002, a clause was added to Article 45 of the Directive Principles that the State will organize childhood care and education for every child till they attain the age of six years. In the article 45 of the Constitution it is declared that the State shall endeavor to provide, within a period of ten years from the commencement of the constitution, for free and compulsory education for all children until they complete the age of fourteen years. Here the State refers to both the Central and the state governments. Through 86th constitutional amendment 2002, free and compulsory education to children up to 14 years of age has been made a fundamental right.
Article 29 of the Constitution states that no discrimination shall be made in granting admission in government or aided educational institutions on grounds of religion, race, caste, creed and color to any citizen of India. Presently this rule is also applicable to all non-aided but recognized educational institutions including public (private) schools.
Article 15(3) of the Constitution states that no provision shall prevent the State from making special provisions for the benefit of women and children.
Article 17 of the Constitution abolishes untouchability in specific terms and under Article 46 provisions have been made----the State will carefully promote the educational and economic interests of the weaker sections of the society, specifically scheduled castes and scheduled tribes, and will prevent them from social injustice and any type of exploitation. Hence all children from weaker sections are provided free books at the primary level along with scholarships. While at the Secondary and Higher levels, reservation is available for them in educational institutions.
Under Article 30 of the Constitution, two provisions are made for education of minorities:
All minorities whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
The State shall not discriminate against any educational institution being managed by some minority community in providing aid on grounds of language or religion.
As a result of these Constitutional directives, minorities are free to run their educational institutions in their own way.
Article 28 of the Constitution clearly states that no religious education will be imparted, in aided or any educational institution funded by the government. Further, in Article 22, it is stated that no child will be forced to attended any religious worship or congression in an educational institution aided or funded by the Government.
The Central Government will be wholly responsible for organization of finance and management of the following: o National Library(s) and museums etc. mentioned at entry no. 62 of the Union list #1 o Educational Institutions of National Importance like-Banaras, Aligarh and Delhi University etc. mentioned at entry no.63 o Scientific and Technical Institutions of National Importance supported by the Centre mentioned at entry no.64 o Professional, Vocational, Technical and Specialized Educational Institutions of National Importance mentioned at entry no.65 o Higher educational institutions and research centers mentioned at entry no.66
In Article 344(1) of the constitution (initially) fourteen languages were declared as languages of National Importance. These languages were –(1)Assammese(2)Bengali(3)Gujarati(4)Hindi(5)Kannada(6)Kashmiri(7)Malyalam (8)Marathi(9)Oriya(10)Punjabi(11)Sanskrit(12)Tamil(13)Telgu(14)Urdu. Now the total number of official languages has risen to twenty two by the 100th constitutional amendment in 2003. Other languages included subsequently through constitutional amendment are: (15)Sindhi(16)Nepali(17)Manipuri(18)Konkani(19)Dogri(20)Bodo(21)Maithali(22) Santhali. It is also mentioned that the State will make necessary efforts for development of these languages.
In the Article 343 of the constitution, Hindi has been declared as the National Language of the country and at the same time in the Article 351 it is mentioned that special efforts will be made for the development of Hindi-“it shall be the duty of the Union to promote the spread of the Hindi language, to develop it so that it may serve as a medium of expression of all the elements of the composite culture of India” ----and without interfering with its munificence and adopting the features, method and terminologies of Hindustani and the Indian languages mentioned in the 8th schedule , to determine the adaptation of words wherever necessary and desirable for vocabulary mainly from Sanskrit and partially from other languages.
Right to education as a fundamental right (Article 21A) has been inserted in the Constitution by the 86th Constitutional Amendment Act; 2002.This act has added a new article after article 21 which was amended by the 44th constitutional amendment in the year 1976. The 44th amendment has amended Article 359 which now provides that enforcement of right to life and liberty under Article 21 cannot be suspended by a presidential order. This amendment is intended to prevent the re-occurrence of situation in future which arose in the Habeas Corpus case. In view of the 44th constitutional amendment the ADM Jabalpur vs. Shivant Sukla AIR 1976 no longer holds good.
Article 21 of the Indian constitution guarantees fundamental right to life and personal liberty by laying down-- “No person shall be deprived of his life or personal liberties accept in accordance with procedures established by law.” The Article lays down that an individual can be deprived of his life or personal liberty only under a law passed by a competent legislature conferring authority of the deprivation of either or both, and by laying down procedures for such deprivation. The court’s powers of ordering the detaining authority to release the detained arise when an individual is deprived of his liberty without the proper procedure established by law. In such a case it is immaterial that an individual is detained preventively or punitively.
Article 21 which had lain dormant for nearly three decades i.e. from the case of A.K. Gopalan to Meenka Gandhi was brought to life by the Hon’ble Supreme Court’s decision. A very fascinating development in the Constitutional Jurisprudence is the extended dimension given to Article 21 by the Supreme Court in post Meenka era. Where as in A.K. Gopalan case, the five judges bench had given a verdict 4:1 in favour of legislation that the law established by the legislature is within the parameter of constitution and thus it was held valid at that time, whereas Justice Fazal had given his verdict in minority which has taken near about 28 years to be proved true in the case of Meenka Gandhi Vs. Union of India AIR 1978.
The constitution of India guarantees certain fundamental rights to all its citizens which are mentioned under chapter III of the Constitution. One of these rights mentioned under Article 21, is reproduced as follows:
Article 21, protection of life and personal liberty, says that no person shall be deprived of his life or personal liberties accept according to procedure established by law.
Extended view of Article 21 has proved to be multidimensional. This aspect of Article 21 is brought out by the following judicial pronouncements. This dimension has been made possible by giving an extended view (meaning) to the word life and liberty as mentioned in Article 21.These two words in the Article are not to be read narrowly. These are organic terms which are to be construed meaningfully.
The right to life enshrined in Article 21 has been liberally interpreted so as to mean something more than mere survival and mere existence or animal existence. It, therefore, includes all those aspects of life which go to make a man’s life meaningful, complete worth of living. The Supreme Court asserted that Article 21 is the heart and soul of fundamental rights in case of Unni Krishanan vs. the State of Andhra Pradesh, Air 1993 SC 2178. It has enough positive content and is not merely negative in its reach even though Article 21 is worded in negative terms.
In case of P. Ratiram vs. Union of India AIR 1994 SC 1844, the Supreme Court has taken the view that in order to treat a right as a fundamental right, it is not necessary that it should be expressly stated as a fundamental right. Accordingly, the Supreme Court has implied a whole bundle of human rights out of Article 21 by reading the same along with some Directive Principles as laid down in Part IV of the Constitution.
Another strategy adopted by the Supreme Court with a view to expand the ambit of Article 21 to imply certain rights wherefrom has been to interpret the Article along with International Charters on Human Rights. For example, in Public Union of Council for Liberty vs. Union Of India AIR 1997 SC 568, The Court implied the right of privacy from Article 21 by imparting it conformity with Article 17 of the Universal Declaration on Human Rights, 1948 and the International Covenants on Civil and Political Rights, 1966. Both of these international documents provide for the right of privacy. India is a signatory to both these and they do not go contrary to any part of the Indian Municipal Law. This kind of judicial interpretation can be seen in a number of cases
Visakha vs. State of Rajasthan, AIR 1997 SC 3011 (sexual harassment of women at working place)
D.K. Basu vs. State of West Bengal, AIR 1977 SC 610(Custodial violence)
Chairman Railway Board vs. Chandrima Das, AIR 2000 SC 988 (Rape Case of Bangladeshi woman who was not a citizen of India but being a person, Article 21 extends and provides her life and liberty.)
From non-deprivation of life to its preservation, from negative to positive contents, Article 21 has been fundamentally transformed as a result of judicial creativity. During the past sixty years, Article 21 has had quite an eventful journey. The most remarkable feature of expansion of Article 21 has been that many of the non-justifiable Directive Principles have been converted into enforceable fundamental rights by the magical wand of judicial creativity. In the process of expanding the ambit of Article 21, the Supreme Court has integrated many Directive Principles with Article 21.The result of judicial activism has been that not only many Directive Principles have been activated but also many new Fundamental Rights have been derived by the Supreme Court from Article 21.This becomes clear from the discussion which follows:
Article 21 is couched in negative phraseology but by its creative interpretation in various cases, the Supreme Court has come to impose of positive obligation upon the State to take steps for ensuring to the individual, better enjoyment of his life and dignity. Though the phraseology of Article 21 starts with negative words but these words have not been used in relation to the word deprived. The object of fundamental right bestowed upon by Article 21 is to prevent encroachment upon personal liberty and deprivations of life accept according to procedure established by law. It clearly means that this fundamental right has been provided against the State only. If an act of a private individual amounts to encroachment upon the personal liberty or depravation of life of other persons, it would not fall under the parameters set for in the Article 21.In such a case the remedy for aggrieved person(s) would either lie under Article 226 of the Constitution or under the General Law. But where an act of any private individual supported by the State infringes the personal liberty or life of another person, the act will certainly come under the ambit of Article 21. The State cannot be defined in a restricted sense. It includes Govt. Departments, Legislature, Administration, Local Authority exercising statutory powers and so on and so forth, but does not include non-statutory or private bodies having no statutory powers viz. companies, autonomous bodies etc. Therefore, the fundamental right guaranteed under Article 21 relates only to the acts of the State or acts performed under established law. The main object of Article 21 is that before a person is deprived of his life or personal liberty by the State, procedures established by law must be strictly followed. Right to life means the right to survival or animal existence in following manner:
Maintenance and improvement of public health
Providing humane conditions in prisons and protective homes
Improvement of environment etc.
These above 3 points have been covered in various forms of Supreme Court decision as such:
 Qualities of life
 Right to livelihood
 Slum dwellers
 Hawkers
 Right to medical care
 Health of labour
 Care homes
 Right to shelter
 Hill roads
 Right to education
 Sexual harassment
 Rape
 Right to privacy
 Tapping of telephone
 Ecology and environment
 HIV + persons
 Right to die
 Right to Health
 Economic rights
All these above rights were mentioned in the Directive Principles of the State Policy being a welfare state but the state was failed to implements all these rights which are now been guaranteed under fundamental rights and are covered under Article 21 by the decision of the Supreme Court. The frontiers of Article 21 are still expanding and new dimensions are being explored by the courts. It is quite possible that, in course of time, the courts may possibly be able to imply some more rights for the people out of Article 21 because the concept of dignified life guaranteed under Article 21 seem to be inexhaustible in range and scope. it is left to the ingenuity of the courts to explore this concept to the extent they can in the Indian social context as it was clarified by the Hon’ble Supreme Court in the case of His Holiness Keshwanand Bharti & Minarwa Mills that the preamble is the basic structures of the Constitution and which will be explained from time to time as per the situation in the prevailing scenario.
Right to Education as emancipated under Article 21 A of the Constitution under Part III Fundamental Rights was by virtue of Supreme Court’s decision and by virtue of Parliament’s will power.
The necessity of Private Unaided Educational Institutions

Specifically Article 38 harmoniously read with Articles 41, 45 and 46 of the Constitution proclaims about education of the people, naturally subject to availability of the funds, is the duty of the states. But if state is not in a position of provide equal opportunities of the education to all sections of the human being it may liberate the opportunities through private educational institutions. The words "within the economic capacity" in Article 41 empowers the states to permit the private educational institutions to be established and administered on its own. And for this they should have their funds which will naturally and reasonably be incurred from the students in the form of fees collected from them by the institutions. [9]

Hence, the need of private institutions crops up. Private unaided institutions are the bulwark of Right to education and the reality is that in the present scenario they are a necessity. The same principle has been acknowledged by the apex court:
In Unni Krishnan’s [10] case, it has been observed by Jeevan Reddy, J., at page 749, para 194, as follows:
"The hard reality that emerges is that private educational institutions are a necessity in the present day context. It is not possible to do without them because the Governments are in no position to meet the demand - particularly in the sector of medical and technical education which calls for substantial outlays. While education is one of the most important functions of the Indian State it has no monopoly therein. Private educational institutions - including minority educational institutions - too have a role to play."
Justice Kirpal,C.J (as the lordship was at that time) in the Pai Foundation case recognised the importance of private unaided educational institutions by citing dismal figures that while the number of Government colleges in certain states had remained stagnant, private institutions had constantly mushroomed:
39. “those private educational institutions are a necessity becomes evident from the fact that the number of government-maintained professional colleges has more or less remained stationary, while more private institutions have been established. For example, in the State of Karnataka there are 19 medical colleges out of which there are only 4 government-maintained medical colleges. Similarly, out of 14 Dental Colleges in Karnataka, only one has been established by the government, while in the same State, out of 51 Engineering Colleges, only 12 have been established by the government. The aforesaid figures clearly indicate the important role played by private unaided educational institutions, both minority and non-minority, which cater to the needs of students seeking professional education.[11]

Education as a Business: lucrative and recession proof
Education no doubt is big business which in the contemporary scenario is regarded as lucrative and recession proof. The notion that education has been a business from times immemorial has been acknowledged by the apex court in the case of Modern School v. Union of India [12] in the following words: (Paras 3, 4 and 5 of the judgment)
“3. In modern times, all over the world, education is big business. On 18th June, 1996, Professor G. Roberts - Chairman of the Committee of Vice-Chancellors and Principals commented:"The annual turnover of the higher education sector has now passed the $10 billion mark. The massive increase in participation that has led to this figure, and the need to prepare for further increases, now demands that we make revolutionary advances, in the way we structure, manage and fund higher education."
4. In the book titled 'Higher Education Law' (Second Edition) by David Palfreyman and David Warner, it is stated that in modern times, all over the world, education is big business…”
It is for the same reason that for the past few decades India has experienced the mushrooming of private unaided educational institutions. The education sector has lately caught the attention of large MNC’s and the Corporate, experiencing large amount of investments, as the education sector is not only lucrative but recession proof. With thinning demand for real estate and growing cash constraints, many developers are now looking at thriving sectors. They are divesting in non-core businesses such as education with a conviction that it’s a recession-proof sector. High rate of return on investment coupled with huge demand-supply gap is attracting realtors to this sector, who will be comfortable setting up the required infrastructure.[13] The AEZ group has recently announced a tie-up with Mother’s Pride, a chain of schools, by investing Rs 500 crore in the company. This unprecedented investment in the education sector, although termed as a philanthropic measure by the investors, needs careful scrutiny.
In all of these cases, the central issue is that when the private party invests money in education, the question of control comes in. The experience has been that wherever private control is high, educators feel stifled and education ultimately suffers.
The Tatas and Birlas have many educational interests for a long time. In a different way, so do the Manipal Group, the Apeejay group or the Amity group. While in the former case, values and philanthropy has been the riding motive, the latter have dedicated themselves largely to education alone. Education is perhaps seen more as a commercial venture for making money. The primary question which concerns us is that whether and to what to extent the State can impose restrictions and regulations vis-à-vis the fee structure of such institutions. The primary objective of the state is to ensure that quality education is imparted by such institutions and to ensure excellence in it. However, the issue of commercialisation of education and illegal profiteering by such institutions is of paramount importance and it is in this light that the apex court has laid down the guidelines in the Pai foundation case and subsequently clarified it in the Islamic and the Inamdar case vis-à-vis fee structure.

Guidelines laid down by The Pai Foundation case & Its clarifications in subsequent cases

Although the Pai foundation case overruled Unnikrishnan’s case, the notion that there should be no charging of capitation fee or commercialisation of education laid down in the latter was upheld. The Pai foundation case was in consonance with the Unnikrishnan’s case in this aspect. In Pai foundation case, the court was of the opinion that there has to be a distinction between the aided and non-aided educational institutions and it would be unfair to apply the same set of restrictions and regulations to the two set of institutions. The right of the private unaided educational institutions to regulate their fee structure for their respective courses derives its competence from the right to administer with sufficient autonomy. Now, the contemporaneous question which crops up is that what degree of autonomy should be permissible to these institutions and where and in which areas should the state restrictions come into play? The question has been left open by the Pai foundation and the subsequent cases. However, the answer to this question cannot be encompassed within a straight jacket formula to enable the state to interfere in the administrative matters of private unaided educational institutions in specific areas and at fixed points. Private Unaided Educational Institutions enjoy greater autonomy in matters of administration, including the fixation of fee structure
Noticing in extensor paras 68, 69 and 70 of the Pai foundation case, it was held in P.A. Inamdar’scase:
“129. In T.M.A. Pai it has been very clearly held at several places that unaided professional institutions should be given greater autonomy in determination of admission procedure and fee structure. State regulation should be minimal and only with a view to maintain fairness and transparency in admission procedure and to check exploitation of the students by charging exorbitant money or capitation fees.”[14]
The above notion that allows greater autonomy to private educational institutions was incorporated by the apex Court in the case of Modern School v. Union of India. The court pointed out vis-à-vis fee structure specifically, that the said institutions were allowed to generate reasonable surplus out of the fees levied, but what was prohibited was commercialisation of education. (Para 14 of the judgment is being mentioned herein)
“14. …..it is now well settled by catena of decisions of this court that in the matter of determination of the fee structure the unaided educational institutions exercises a greater autonomy as, they, like any other citizen carrying on an occupation are entitled to a reasonable surplus for development of education and expansion of the institution. Such institutions, it has been held, have to plan their investment and expenditure so as to generate profit. What is however, prohibited is commercialisation of education. Hence, we have to strike a balance between autonomy of such institutions and measures to be taken to prevent commercialization of education. However, in none of the earlier cases, this court has defined the concept of reasonable surplus, profit, income and yield….”[15]
The above notion has been reiterated by the apex court in a very recent judgment in the following words in the case of Modern Dental College & Research Centre v. State of M.P.:
“10. It was also observed, following the decision in T.M.A. Pai Foundation that greater autonomy must be granted to private unaided institutions as compared to private aided institutions the reason for this is obvious. The unaided institutions have to generate their own funds and hence they must be given more autonomy as compared to aided institutions, so that they can generate these funds. However, this does not mean that the private unaided professional institutions have absolute autonomy in the matter. There can validly be a certain degree of State control over the private unaided professional institutions for the reason that recognition has to be granted by the State authorities and it is also the duty of the State to see that high standards of education are maintained in all professional institutions. However, to what degree the State can interfere with respect to private unaided institutions is a matter deserving careful consideration.”[16]
General findings of the Supreme Court vis-à-vis Fee Structure in the Pai Foundation Case
As regards fee structure of private unaided professional institutions the Supreme Court was of the opinion (Pai Foundation case):
“69… … A rational fee structure should be adopted by the Management, which would not be entitled to charge a capitation fee. Appropriate machinery can be devised by the state or university to ensure that no capitation fee is charged and that there is no profiteering, though a reasonable surplus for the furtherance of education is permissible.”[17]
In the Pai foundation case, the court drew a reasonable nexus between the fixation of fees by the private unaided educational institutions and the standards maintained by them. The court accepted the harsh reality that the standards maintained in private unaided educational institutions was far better than Government institutions and curtailing their fee structure or manipulating it would give rise to unwarranted consequences affecting the excellence of such institutions. The court inter alia was of the opinion that it was in fact the standards maintained by such institutions that encouraged the students to enroll in private institutions rather in the Government institutions. The abovementioned notion was envisaged by the apex court in the Pai foundation case in the following words:
“In the case of unaided private schools, maximum autonomy has to be with the management with regard to administration, including the right of appointment, disciplinary powers, admission of students and the fees to be charged. At the school level, it is not possible to grant admission on the basis of merit. It is no secret that the examination results at all levels of unaided private schools, notwithstanding the stringent regulations of the governmental authorities, are far superior to the results of the government-maintained schools. There is no compulsion on students to attend private schools. The rush for admission is occasioned by the standards maintained in such schools, and recognition of the fact that state-run schools do not provide the same standards of education. The State says that it has no funds to establish institutions at the same level of excellence as private schools. But by curtailing the income of such private schools, it disables those schools from affording the best facilities because of a lack of funds. If this lowering of standards from excellence to a level of mediocrity is to be avoided, the state has to provide the difference which, therefore, brings us back in a vicious circle to the original problem, viz., the lack of state funds. The solution would appear to lie in the States not using their scanty resources to prop up institutions that are able to otherwise maintain themselves out of the fees charged, but in improving the facilities and infrastructure of state-run schools and in subsidizing the fees payable by the students there. The fear that if a private school is allowed to charge fees commensurate with the fees affordable, the degrees would be "purchasable" is an unfounded one since the standards of education can be and are controllable through the regulations relating to recognition, affiliation and common final examinations.”[18]
Summary of Findings of the Supreme Court vis-à-vis Fee structure in the Islamic Case
The first question which came before the apex court in Islamic academy of Education v. State of Karnataka[19], which we are concerned herein, was whether the private unaided educational institutions are entitled to fix their own fee structure. Clarifying stand of reasonable fee structure as mentioned in the Pai foundation case and harmonising the interests of the educational institutions to earn reasonable surplus and to prevent the commercialisation of education, the findings of the apex court can be summarised as follows:
It was held per Khare, CJ. (for himself and for Variava, Balkrishnan and Pasayat, JJ) that so far as fee structure is concerned the majority Judgement in the Pai Foundation case is very clear. There can be no fixing of a rigid fee structure by the Government. Each institute must have the freedom to fix its own fee structure taking into consideration the need to generate funds to run the institute and to provide facilities necessary for the students. They must also be able to generate surplus which must be used for the betterment and growth of that educational institution. Again, it was re-iterated that "the decision on the fees to be charged must necessarily be left to the private educational institutions that do not seek and which are not dependent upon any funds from the government. Each institute will be entitled to have its own fee structure. The fee structure for each institution must be fixed keeping in mind the infrastructure and facilities available, the investments made, salaries paid to the teachers and staff, future plan for expansion and/or betterment of the institution etc.[20] Of course, there can be no profiteering and capitation fee cannot be charged. It thus needs to be emphasised that as per majority Judgment in the Pai foundation case imparting the education is essentially charitable in nature. Thus, the surplus/profit that can be generated must be only for the benefit/use of that educational institution. Surplus/profits cannot be diverted for any other use or purpose and cannot be used for personal gain or for any other business or enterprise.[21]
The Court noticed that there were various statutes/regulations which governed the fixation of fee and, therefore, this Court directed the respective State Governments to set up committee headed by a retired High Court Judge to be nominated by the Chief Justice of that State to approve the fee structure or to propose some other fee which could be charged by the institute.
The position as clarified by Inamdar’s case vis-à-vis Fee structure
In Inamdar’s case the court classified the aggrieved persons into two classes, i.e. unaided minority and non-minority institutions imparting professional education. The third issue which came up before the bench for consideration, concerns us herein, i.e. the fee structure of such institutions.[22] As regards regulation of fee, in Inamdar’s case, it was opined:
“139. To set up a reasonable fee structure is also a component of "the right to establish and administer an institution" within the meaning of Article 30(1) of the Constitution, as per the law declared in Pai Foundation. Every institution is free to devise its own fee structure subject to the limitation that there can be no profiteering and no capitation fee can be charged directly or indirectly, or in any form (Paras 56 to 58 and 161 [Answer to Q.5(c)] of Pai Foundation are relevant in this regard).”[23]
Right to Administer includes the right to fix a reasonable fee structure

Regulation of fee structure stems from the broader right to administration of educational institutions. However, this right is not absolute in nature, i.e. blanket powers to frame its rules and regulations and to set a fee structure of their own choice cannot be given to the private unaided educational institutions. The state can interfere in matters of fee regulation where it deems fit that the institution is exploiting the students by providing inadequate facilities which is not commensurate to the fee charged. However, it is not to say that these restrictions or regulations imposed by the state are always to be regarded pristine in nature or undisputable. If the private unaided educational institutions can fairly prove that the fee structure framed by them is conducive to the welfare of the students who are being provided commensurate facilities which is to achieve the greater goal of excellence in education, then the state would be obliged to withdraw the charges or the restrictions imposed by it earlier. But the contentions of the educational institutions that the fee charged by them is reasonable and not in excess shall be supported by sufficient material to prove beyond reasonable doubt that institution is in no manner indulging in the commercialization of education.
The correct position as to the extent of state regulation on private educational institutions and the autonomy to fix the fee structure was envisaged by the apex court in the Pai foundation case in the following words: (Paras 54, 56 and 57 of the Pai foundation case are herein being produced)
“54. 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 charge 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 for admissions would be unacceptable restrictions.”
“56. ….The decision on the fee to be charged must necessarily be left to the private educational institution that does not seek or is not dependent upon any funds from the Government.”

“57………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.”
The Burning issue of Capitation Fee
The expression capitation fee does not have a fixed meaning; it neither has been defined by any central statute nor by the Supreme Court. However, different state legislatures in have defined the term differently. The Tamil Nadu Educational Institutions (Prohibition of Collection of Capitalisation Fee) Act, 1982, defines Capitation fee as:
"capitation fee means any amount by whatever name called, paid or collected directly or indirectly in excess of the fee prescribed, under Section 4;"
The expression ‘capitation fee’ as defined in S. 2(a) of the Maharashtra Educational Institutions (Prohibition of Capitation Fee) Act, (6 of 1988) is:

“ Capitation fee means ‘any amount, by whatever name called, whether in cash or kind, in excess of the prescribed or as the case may be approved, rate of fees….”
The wide prevalent notion that capitation fee is only in cash is erroneous. As the above definition suggests, capitation fee can be in kind also. The term ‘kind’ is of wide import and can be construed to include any property, favour, a commodity or anything which is given not being commensurate to the fee charged.
The Right of Children to free and Compulsory Education Act, 2009 defines capitation fee in S. 2(b) as follows:
“Capitation fee means any kind of donation or contribution or payment other than the fee notified by the school.”
On perusal of the above two definitions it is evident that the term capitation fee may have different characteristics at different levels of education. At the primary or elementary level, the term is confined to donation or contribution, whereas at the higher education level the term in addition to the meaning attributed to it at the primary level also envisages the qualities of favours.
The prohibition against the charging of capitation fee has been laid down by the Supreme Court in a catena of judgments. However, the reality is that the unscrupulous activity of charging capitation fee is still being marshalled by some of the institutions. The need of the hour is to pierce the veil and to expose the activity of charging capitation fee, which is not in consonance with the constitutional fabric. Charging capitation fee is the patent denial of the fundamental right to education of citizens of India.
The question arose for the first time before a two Judge bench of the Supreme Court in Mohini Jain v. State of Karnataka[24], in the following context:
The Supreme Court has derived the Right to Education as a fundamental right from Article 21. The word life has been held to include education because education promotes good and dignified life. The question arose for the first time before a two judges bench of Supreme Courts in Mohini Jain vs. State of Karnataka in the following factual context.
With a view to eliminate the practice of collecting capitation fee for admitting students in educational institutions, the Karnataka legislature passed an act purporting to regulate tuition fee of private medical colleges in the State. By issuing a notification under the said Act, government fixed Rs. 2000/- per year as tuition fee payable by candidates admitted against government seats but all other students from the state were to pay Rs.25000 per annum as tuition fee. The Indian students from outside the state were to pay Rs.60000 per annum. On a writ petition filed by an out of state student, the Supreme Court quashed the said notification under Article 14 of the Constitution.
In justification of the notification, the private medical colleges had argued that they did not receive any financial aid from the Government and so they must charge much higher fees from private students to make good the loss incurred on students’ government.
The court accepted that the Constitution does not expressly guarantee the right to education, as such, as a Fundamental Right. But reading, cumulatively, Article 21 along with Directive Principles as contained in Articles 38, 39(a), 41 and 45, the Court opined that “it becomes clear that the framers of the Constitution made it obligatory for the State to provide education for its citizens.”
The courts argued that without making the right to education under Article 41 a reality, the fundamental Rights would remain beyond the reach of large majority which is illiterate; the fundamental rights including the freedom of speech and expression and other rights guaranteed under article 19, cannot be fully appreciated and fully enjoyed unless a citizen in educated and is conscious of his individualistic dignity. Further, life in Article 21 means right to live with human dignity. Right to life is the compendium expression for all those rights which are basic to the dignified enjoyment of life. Thus, ruled the Court,”the right to education flows directly from the right to life” ” that the “right to education” being concomitant with the fundamental rights, “the State is under a constitutional mandate to provide educational institutions at all levels for the benefit of the citizens .
The main question before the bench was whether it would be permissible for private but government recognized educational institutional to charge capitation fee for the admission of the students. The bench characterized capitation fee as nothing but a price for selling education which amounts to commercialization of education, adversely affecting educational standards. The court characterized institutions charging capitation fee as teaching shops and regarded the concept of teaching shops as contrary to the constitutional scheme which is wholly abhorrent to the Indian culture and heritage.
The bench declared that charging capitation fee amounts to discrimination on a class basis and is thus denial of rights bestowed under Article 14 because a poor meritorious student is denied admission to these institutions because he has no money whereas the rich can purchase education. The Court further observed that such a treatment is patently unreasonable, unfair and unjust. The bench thus, declared charging of capitation fee by the state recognized educational institutions as wholly arbitrary and as such a violation of Article 14 of the Constitution. Referring to the fixing of Rs.60,000/- as tuition fee for outside state students in the impugned notification, the court observed:
“Whatever name one may give to this extraction of money in the name of medical education it is nothing but the capitation fee and as such cannot be sustained and is liable to be struck down.”
Taking an absolutist view of the state obligation to provide education at all levels, the bench observed:
We hold that every citizen has a right to education under 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. Charging capitation fee in consideration of admission to educational institutions is a patent denial of the citizen’s right to education under the Constitution.
In Mohini Jain case the Court took an extremely expansive view of State obligation to provide education to everyone at all levels. The State should provide adequate number of institutions of higher and professional education as need be for. From a practical point of view, such an approach was hardly viable, feasible and tenable in the present day economic situation of the country, for no state has the financial wherewithal to meet public demand for professional colleges. The Mohini Jain ruling would have placed an impossible financial burden on the state governments to provide education to all. All private educational institutions would have closed down and only government aided institutions would have survived.
The judgment in Mohini Jain stated certain postulates which though basically sound theoretically and idealistically were hardly viable and feasible and tenable in practice. For example, when the states in India have not been able to introduce compulsory and universal primary education in the country so far, even after six decades of the Constitution coming into force, it seems to be an exercise in futility to imagine that the government can fully meet from its own meager resources the full demand for higher education and professional education for all those who seek the same. Thus there seems no need to bar private initiative from the field of professional education. There should be some place under the sun for good private institutions imparting high level of professional education. Of course, care has to be taken that these institutions run on missionary lines. After all, in the USA some of the best educational institutions are private ones. Further, it seems axiomatic that if private institutions are not to be aided by the Government then necessarily they have to charge higher fees to make their both ends meet.
Accordingly, the matter whether the State could permit private professional educational institutions to charge capitation fee for admission of students came to be reconsidered in Unni Krishnan case by a larger bench of five judges. A more realistic view has now been propounded by the court. The matter was put in proper perspective by the court in Unni Krishnan case.
The Court has reiterated the proposition that having regard to the fundamental significance of education to the life of an individual and the nation the right to education is, implicit in, and flows from, the right to life guaranteed by Article 21.But said the parameters of this right which is not absolute have to be determined in the light of the Directive Principles as contained in Articles 41,45 and 46.The court has now limited the State obligation to provide educational facilities as follows:
Every citizen has right to free education until he completes the age of 14 years.
Beyond that stage, the State obligation to provide education is subject to the limits of economic capacity and development of the State.
The obligation thrust by Articles 41, 45 and 46 can be discharged by the State either by establishing institutions of its own or by aiding recognizing and/or granting affiliation to private educational institutions. Taking note of the inadequate outlay on education and limited economic capacity of the State to finance education, the Court has ruled that private educational institutions, both aided and unaided, are a necessity in India, but commercialization of education cannot and should not be permitted."
While denouncing the levy of capitation fee by certain professional colleges, the court has however accepted that unaided private educational institutions can charge higher tuition fees. They “have and are entitled to charge a higher fee, but not exceeding the ceiling fixed.”
The courts have also noted that Article 14 applies to the State educational institutions. Article 14 compels them to admit students on merit, subject to any permissible reservation, wherein again merit inter se has to be followed. The educational activity being carried out by private institutions is supplemental to the main efforts being made by the State. And therefore as Article 14 applies to the main activity, it also applies equality to the supplemental activity as well.
As Article 14 applies to the State institutions, its application “cannot be excluded from the supplemental effort/activity”. The implication of this statement is that even the private educational institutions are required to admit students on merit and merit alone. The policy of admission should not be based on money considerations but on merit. Meritorious but poor students ought not to be excluded and unmeritorious but rich students are included. Merit should be a consideration for admission in private colleges.
Accordingly, the court has evolved a scheme as regards the level of fees chargeable by private educational institutions as well as the policy for admissions. This scheme is in the nature of guidelines which appropriate governments and affiliating authorities shall impose and implement in addition to such other conditions and stipulations that they may think appropriate “for the grant of permission, recognition or affiliation, as the case may be.”Where recognition or affiliation is granted but not aid, it may not be insisted that such private institutions shall charge only as much fee as is charged for similar courses in government institutions.
At present this scheme is confined to private professional colleges only, namely, private medical colleges, private dental colleges and private colleges imparting training in nursing, pharmacy and other courses allied to medicine, private engineering colleges, including those imparting technical education in electronics and computer science etc. The Scheme is to apply and govern admissions to professional colleges commencing from the academic year 1993-94 and onwards. The States of Tamil Nadu, Maharashtra, Karnataka and Andhra Pradesh enacted statutes prohibiting collection of capitation fee and regulating admission in professional colleges. In terms of the provisions of the said Acts, the management of the professional colleges is prohibited from charging any fee other than fee determined under the said Acts.
The Reasonable Surplus Doctrine

Private Unaided Educational Institutions are allowed to make Profits but not Profiteering.
The unanimous opinion of the Supreme Court in all the above mentioned cases was that while the private unaided institutions were allowed to make some profits, in the course of their occupation, charging of capitation fee and illegal profiteering was and is strictly prohibited. Therefore what is prohibited is illegal profiteering and not profits. The term ‘profiteering’ was defined by Sinha, J. in the Islamic case taking the aid of Black’s law dictionary in the following manner:
“137. Profiteering has been defined in Black's Law Dictionary, Fifth edition as:
"Taking- advantage of unusual or exceptional circumstances to make excessive profits."[33]
The notion that private unaided educational institutions are entitled to earn profits and not to profiteer has been affirmed by the Supreme Court in a very recent case, namely Unaided Private Schools of Delhi v. Director of Education in the following words:“68. On a perusal of T.M.A Pai Foundation and P.A. Inamdar, it can be inferred that private unaided institutions are permitted to have a profit but not permitted to profiteer….”[34]

Reasonable Surplus

The apex court was also of the opinion that such institutions were justified in earning reasonable surplus in the course of their occupation. The apex court was of the following opinion vis-à-vis reasonable surplus in the Pai foundation case:
“69…Appropriate machinery can be devised by the state or university to ensure that no capitation fee is charged and that there is no profiteering, though a reasonable surplus for the furtherance of education is permissible…..”[35]
The fact that merits attention is that the apex court has constantly reiterated that the reasonable surplus earned by such institutions can only be utilised for the purpose of education, i.e. for the expansion and augmentation of education and not for any other purpose. Further the reasonable surplus doctrine is only available to those institutions making profits out of their own investments. In the Pai foundation case it has been clearly mentioned that reasonable surplus would not come in the ambit of profiteering:
“….Reasonable surplus to meet the cost of expansion and augmentation of facilities does not, however, amount to profiteering.”[36]
The above position was affirmed and further elaborated. The apex court was of the opinion that earning reasonable surplus was an integral part of an occupation, hence it was valid. Para 128 of the Islamic case is worthy of perusal in this regard:
“128…..They, (unaided educational institutions) like any other citizens carrying on an occupation, must be held to be entitled to a reasonable surplus for development of education and expansion of the institution. Reasonable surplus doctrine can be given effect to only if the institutions make profits out of their investments. As stated in paragraph 56(of the Pai foundation case), economic forces have a role to play. They, thus, indisputably have to plan their investment and expenditure in such a manner that they may generate some amount of profit. What is forbidden is (a) capitation fee and (b) profiteering.”[37]
The notion of reasonable surplus was further crystallized by the apex court in the Inamdar case. In this case the court tried to explain the gist of the answers which had been formulated by the Supreme Court in the Pai foundation case as follows:
“16……A provision for reasonable surplus can be made to enable future expansion. The relevant factors which would go into determining the reasonability of a fee structure, in the opinion of majority, are: (i) the infrastructure and facilities available, (ii) the investments made, (iii) salaries paid to the teachers and staff, (iv) future plans for expansion and betterment of the institution etc.”[38]
The Supreme Court for the first time in the Inamdar case after the Modern school case (2004) discussed the concepts of revenue expenditure vis-à-vis reasonable surplus, reiterating its earlier stand, but this time backing it with a cogent reason for the institutions to earn reasonable surplus in the following words:

“Equally, a reasonable surplus should be permitted so that the fees charged cover the entire revenue expenditure and in addition leaves a reasonable surplus for future expansion. This alone would prevent the clandestine collection of capitation fees and would result in entrepreneurs investing in new medical colleges.”
Expense as distinct from Expenditure

Right from the Modern School v. U.O.I case to the Inamdar case, the Supreme Court has termed education as a charitable occupation. This implies that educational institutions are run on philanthropic purposes and the accounting principles to be applied to them are that of not-for –profit or non-business organisations. In the recent years, it has been a usual phenomenon that such institutions have tried to cash in excessive profits by manipulating their books of account, showing frivolous entries which will entitle them to recover money on the annual or recurring basis, although with depreciating interest. In this regard it is imperative to get cognizant with the concepts of ‘expense’ and ‘expenditure’. These concepts were defined by the Supreme Court in the case of Modern School v. Union of India:
“20. Under the Generally Accepted Accounting Principles, expense is different from expenditure. All operational expenses for the current accounting year like salary and allowances payable to employees, rent for the premises, payment of property taxes are current revenue expenses. These expenses entail benefits during the current accounting period. Expenditure, on the other hand, is for acquisition of an asset of an enduring nature which gives benefits spread over many accounting periods, like purchase of plant and machinery, building etc. Therefore, there is a difference between revenue expenses and capital expenditure. Lastly, we must keep in mind that accounting has a linkage with law. Accounting operates within legal framework. Therefore, banking, insurance and electricity companies have their own form of balance-sheets unlike balance-sheets prescribed for companies under the Companies Act 1956.” Therefore, we have to look at the accounts of non-business organizations like schools, hospitals etc. in the light of the statute in question.”[39]
Thus the fine thread which differentiates ‘expense’ from ‘expenditure’ is that while the former is on annual basis, the latter is of enduring nature and is not accounted during the financial year. The unjustified practice observed by some of the institutions is to show frivolous entries in their expense accounts so that they can incur profits on the same.
Ex. It is a usual feature that the private institutions advertise their colleges in the newspapers throughout the year. The monies incurred for the same is shown in the expense accounts. However, this practice is erroneous in nature as advertising is only a measure to popularize the brand name of such institutions and cannot be termed as a proper expense. Hence, the institutions are not entitled to earn profits on the same.
The scheme formed by the Islamic case that the books of account are to be scrutinized by a Charted Accountant acts as a safety valve against such unwarranted practices. Another feature that distinguishes expense from expenditure and which is relevant in regard to the fee charged by the institutions is that while expenses are to come out of the fee charged, whereas the expenditure has to come out of the savings of the institutions. This concept was pointed out by the apex court in the Modern school case (2004) in the following words:“21…..
Therefore, rule 177 (of the Delhi school Education act, 1973) shows that salaries and allowances shall come out from the fees whereas capital expenditure will be a charge on the savings. Therefore, capital expenditure cannot constitute a component of the financial fees structure as is submitted on behalf of the schools. It also shows that salaries and allowances are revenue expenses incurred during the current year and, therefore, they have to come out of the fees for the current year whereas capital expenditure/capital investments have to come from the savings…….”[40]
What amount of Reasonable Surplus is Reasonable?

Now, the terms ‘reasonable’ and ‘surpluses’ are somewhat repugnant to each other. Although the apex court did not elaborate on the issue of reasonable surplus, abstaining from fixing a certain amount which could be called as reasonable surplus, Sinha, J. in the Islamic Academy case was of the following opinion:
“135. While this Court has not laid down any fixed guidelines as regard fee structure, in my opinion, reasonable surplus should ordinarily vary from 6% to 15%, as such surplus would be utilized for expansion of the system and development of education.”[41]
However, it is submitted that in order to fix the reasonable surplus care has to be taken in respective cases. An institution charging exorbitant fees and not providing commensurate facilities to its pupils cannot be allowed to earn a reasonable surplus of 15%. The notion of reasonable surplus cannot be cabined within doctrinaire limits or generalized; hence special care has to be taken while examining the issue of reasonable surplus.

[1] (1993) 1 SCC 645. Although this case was overruled by the Pai Foundation case subsequently, the notion that the citizens have a fundamental right to education, which inherently flows from Ar. 21 and the practice of charging capitation fee was abhorrent to the constitutional scheme, hence prohibited, were upheld by the later. The Pai foundation case was in consonance with this case in these 2 aspects.
[2] (2002) 8 SCC 481. The majority judgment was delivered by Kirpal, CJ with Ruma Pal, S. N. Variava and Ashok Bhan, JJ concurring with him. Khare, J. delivered a separate but concurring opinion. The judgment was delivered on 31st October, 2002.
[3] (2003) 6 SCC 697. The majority judgement was delivered by Khare, CJ on behalf of Variava, Balakrishnan and Pasayat, JJ. While Sinha, J delivered a separate opinion. The judgement was delivered on 14th August, 2003.
[4] (2005) 6 SCC 537. The decision which was delivered by Lahoti, CJ.
[5] (2009) 7 SCC 751. Para 4.
[6] (2009) 10 SCC 1. Para 24, per Kapadia, J.
[7] Entry 25 of List III (VIIth schedule) of the Constitution of India: Education, including technical education, medical education and universities and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.
[8] Islamic Academy of Education and Anr. v. State of Karnataka and Ors. (2003) 6 SCC 697; Para 1, per Sinha, J.
[9] Chaturbhuj Nath Tewari, Capitation Fee Vis-à-vis Surplus Fund In Higher Education
[10] J.P. Unnikrishnan v. State of Andhra Pradesh (1993) 1 SCC 645
[11] T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481, para 39.
[12] (2004) 5 SCC 583, Para 3, 4 and 5, per Kapadia, J (Khare, C.J concurring with Sinha,J. dissenting)
[13] Praveen K. Singh, - Education is recession proof.
[14] P.A. Inamdar v. State of Maharashtra (2005) 6 SCC 537, Para 129
[15] Modern School v. Union of India (2004) 5 SCC 583, Para 14
[16] Modern Dental College & Research Centre v. State of M.P. (2009) 7 SCC 751, Para 10.
[17] T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481, Para 69, per Kirpal, C.J.
[18] T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481, Para 61, per Kirpal, C.J.
[19] Islamic Academy of Education and Anr. v. State of Karnataka and Ors. (2003) 6 SCC 697
[20] Islamic Academy of Education v. State of Karnataka (2003) 6 SCC 697, Para 56
[21] Ibid. Paras 5 and 6
[22] P.A. Inamdar v. State of Maharashtra (2005) 6 SCC 537, Para 26
[23] Ibid. para 139
[24] (1992) 3 SCC 666
[25] (1992) 3 SCC 666
[26] (1993) 1 SCC 645
[27] AIR 2002 SC 463
[28] (2002) 8 SCC 481
[29] (2003) 6 SCC 697
[30] (2004) 5 SCCLE 583
[31] (2009) 7 SCC 751
[32] Ibid. Para 17
[33] Per Sinha,J. in the Islamic academy case, Para 137
[34] Unaided Private Schools of Delhi v. Director of Education (2009) 10 SCC 1. Per Sinha,J. Para 68. This case came before the apex court in the form of a review petition under Ar. 137 of the Constitution of India. The court reviewed its earlier decision in the case of Modern School v. Union of India (2004) 6 SCC 537. Sinha,J. dissented in this case on the same lines as he did in the Modern School case.
[35] Per Kirpal, C.J. in the Pai Foundation case, Para 69 (as per Manupatra citation)
[36] Per Kirpal, C.J. in the Pai foundation case. (answer to Q. 9)The court at this point overruled the Unnikrishnan case, but upheld it to the extent that right to education is a fundamental right and charging capitation fee is prohibited.
[37]Per Sinha, J. in the Islamic Academy Education case, Para 128 (as per Manu citation)
[38] Para 16(1) of the Inamdar case (as per Manu citation)
[39] Modern School v. Union of India AIR 2004 SC 2236, per Kapadia, J. Para 20.
[40] Ibid. Para 21
[41] Ibid. Para 135