Authored by Manvi Adukia, 2nd year law student at Institute of Law, Nirma University
The abstract of this paper explores how the proliferation of expensive private colleges has turned the educational system into a business, sparking discussion on whether these institutions should be governed by Article 21 or Article 19 of the Indian Constitution. It casts doubt on the crucial role that public education plays in India, emphasises the profit-driven nature of private colleges, and analyses the difficulties that this poses for the right to equality as the number of public universities declines. It also examines how higher education's governing organisations have shaped this dynamic environment. This study contributes to the ongoing national conversation on educational policy and regulation by shedding light on the intricate interactions between constitutional rights and the commercialization of education.
India has a very rich educational past that has aided in information acquisition and mental expansion. It is the continuous learning of facts, knowledge, and abilities throughout life. There are many different contexts where informal and formal educational opportunities might be found. Our learning is always shaped by historical and cultural contexts. India's current educational system is the product of centuries-old dualities that capture the wisdom and vice of a vanished civilization. An alternative perspective on education is that it is an evolutionary force that empowers individuals to advance beyond just material consciousness. Education is also considered a bridge between the present and the future, a means of passing on to the next generation the best elements of the past for their own continuous development. India has the largest and oldest educational system in the world. The antiquity and diversity of cultural practises and institutions can be seen in their long and precarious historical roots.
Education supply is driven by the desire for financial gain, the sale of services, or both, as education has been defined as the act of nurturing and refining an individual's innate traits. It's easy to argue that education is becoming more and more commercialised.
In light of the nation's shifting social and economic landscape, India's political and economic ideologies have undergone a noticeable shift, which has increased demand for private educational institutions. This change has coupled with an increasing trend towards the commercialization of education. A major contributing element to this trend is the notable evolution of higher education in India, particularly from the early 1990s, which has seen the remarkable emergence of private higher education institutions. The size of the private sector is approximately double that of the public sector when accounting for both the number of institutions and the number of enrolled students. Many impacts are being produced by this process, some of which are beginning to show results.
The argument goes that public financing constraints are causing fewer investments to be made in state-supported educational institutions, which makes it challenging to expand the number of publicly funded universities and colleges. There is a drive for foreign direct investment (FDI) in higher education to close this funding gap.
Another positive is the large number of Indian students who opt to continue their education overseas. Permitting foreign colleges to establish campuses in India could be able to halt student outflow. More Indian students would therefore have access to affordable domestic higher education, which would be less expensive than studying overseas when it comes to living expenses, travel expenses, and tuition. Additionally, India's foreign exchange reserves would be preserved.
Foreign higher education institutions would encourage healthy competition among local universities, claim proponents of foreign direct investment in education. This competition would incentivize local institutions to modernise their courses and satisfy students' urgent needs. The degrees from these universities would therefore be recognised and accepted globally. Furthermore, foreign direct investment (FDI) in the education sector can stimulate the development of new educational facilities, the expansion of infrastructure, and the creation of job opportunities.
In view of these possible benefits, the Indian government has been aggressively engaged in legislative and executive attempts to promote the commercialization and privatisation of education. These initiatives aim to change India's educational system by promoting competition, increasing access to high-quality education, and strengthening India's standing in the global education community.
In view of the revolutionary expansion of private higher education in India, one can wonder if this commercialization aligns with the principles established in the Indian Constitution. Does this extension reflect the fundamental meaning that the authors of the Constitution intended for the Right to Education? Furthermore, in light of the expanding presence of private institutions, it is uncertain if the provision of education genuinely remains a public role given the enormous repercussions of these developments on equity, access, and the socioeconomic foundation of the nation.
Education in India - Triad of Constitutional Significance
In India, education holds a special place as it is recognized as a fundamental right, and a fundamental duty, and is enshrined in the Directive Principles of State Policy (DPSP) in the Constitution. Here's an overview of how education is addressed in these three aspects:
Education as a Fundamental Right
Article 21(A): The Right to Education (RTE) Act of 2009 added Article 21A to the Indian Constitution, establishing the fundamental right to education for children between the ages of six and fourteen. This implies that every child in this age range has a legal entitlement to a free, public education.
Universal access: The RTE Act emphasises the importance of ensuring that everyone has access to elementary education and forbids discrimination on the basis of caste, gender, religion, or socioeconomic status. It also establishes requirements for curriculum, teacher-student ratios, and the construction of neighbourhood schools.
Education as a Fundamental Duty
Article 51A (k): In accordance with Article 51A (k) of the Indian Constitution, parents or guardians have a fundamental obligation to give their children, who are between the ages of six and fourteen, the opportunity to pursue an education. This highlights the fact that citizens and the state both have a role to play in advancing education.
Education in the Directive Principles of State Policy (DPSP)
Article 45: All children up to the age of six must get free and mandatory education, according to Article 45 of the DPSP of the Indian Constitution. The DPSP's clauses are not legally binding, but they do serve as a guide for the state's policymaking. One piece of legislation that embodies this directive idea is the RTE Act (Article 21A).
The Indian state's commitment to guaranteeing fair and accessible education for its population is shown in the inclusion of education as a fundamental right, a fundamental duty, and a directive principle in the Constitution. Together, these laws seek to narrow educational inequalities, advance social fairness, and enable people to reach their full potential. The Right to Education Act, in particular, is essential for turning these constitutional guarantees into workable policies and programmes that have a significant influence on India's educational system.
Background: India's Higher Education
In India today, children between the ages of 6 and 14 have a fundamental right to an education. All Indian citizens have the right to freedom of speech and expression, according to Article 19 (1) (a) of the Indian Constitution. Freedom of speech and expression refers to the ability to freely express one's beliefs and thoughts through spoken words, written words, printed words, visual images, or any other methods. Only those with formal education can utilise their right to free speech and expression in a targeted manner. A bench consisting of Chief Justice S.H. Kapadia and Justice Swatanter Kumar in Society for Unaided Private Schools v Union of India & Anr, further ruled that a kid who is denied the right to attend education is also denied the freedom of speech and expression guaranteed by Article 19(1)(a) in addition to his right to live in dignity. A significant development in the realm of education was the passage of the Right to Education Act, 2009 for kids between the ages of six and fourteen. All Indian children between the ages of 6 and 14 now have the legal right to a free, basic education at a nearby school. Article 21 of the Indian Constitution also includes a section on the right to education. The Indian Constitution's Article 21 talks about the right to life, yet it is incomplete without mentioning the right to education. The right to education has been implicitly recognised as a basic right by the Supreme Court of India.
According to the Supreme Court's ruling in the case of Unni Krishnan, J.P. v. State of Andhra Pradesh, every child or citizen has a right to free education up until the age of 14, after which it is subject to the State's economic capacity and level of development.
A significant development in the realm of education was the passage of the Right to Education Act, 2009 for kids between the ages of six and fourteen. All Indian children between the ages of 6 and 14 now have the legal right to a free, basic education at a local school. There are no costs associated with primary education that must be covered by the kid or parents, either directly (school fees) or indirectly (uniforms, textbooks, midday meals, transportation). Up until the end of a child's elementary education, the government will provide all of their educational needs for free. For the children in India, it was a momentous historical occasion. The new law mandates that local and state governments work together to ensure that every child receives an education in a neighbourhood.
The 86th Constitutional Amendment Act of 2002 added Article 21 A to the Indian Constitution, making children's education a basic right. It states that all children between the ages of six and fourteen must receive free and mandatory education in the manner specified by law.
Intense debates and conversations concerning the function and form of education in the nation have been sparked by the phenomenal expansion of private higher education institutions in India. Due to the potential for the commercialization of education, this growth has been seen as a solution to the rising need for education, which is being driven by India's expanding youth population and their growing thirst for knowledge and skills. How closely these developments adhere to the fundamental values and ideals entrenched in the Indian Constitution is the central question at the centre of this argument.
This conflict was sparked by the crucial Mohini Jain v. State of Karnataka case, which took place in the early 1990s. Whether private institutions in India should be governed by Article 21 or Article 19 of the Indian Constitution was at the core of the debate. This precedent-setting judgement, which upheld an end to the practice of allocating government-nominated candidates places at private medical and dental schools in Karnataka, significantly broadened the definition of what constitutes a fundamental right under Article 21. It emphasised the importance of education in providing accessibility for all people as well as its role in the public good.
However, this constitutional framework has been put to the test by the subsequent explosion of private universities, which are frequently driven by profit-driven strategies like high tuition costs. The commercialization of education and its consequences for the right to equality has come under intense scrutiny as a result of this rapid rise. The debate over higher education in India is still shaped by the conflict between private enterprise and the constitution's commitment to education as a public benefit, which calls for a detailed analysis of how these dynamics affect the country's educational landscape.
Education As A Public Function In India
In India, the concept of education sits at the intersection of two important and legitimate rights. First, by disseminating information and a shared understanding of values, a democratic society has the right to ensure its continued existence. Furthermore, families are legally able to determine the impacts and shaping factors that their children are exposed to. However, there are times when these rights collide, particularly when there are divergent political, social, and religious beliefs and ideals within a family. This disparity could lead to a basic incongruity between private priorities and the public goals of education.
There are two schools of thought on education: the private good and the public good. Naturally, families want their children to attend school so they can benefit from the many advantages education offers on a personal level. Education is thought to enhance individual productivity, earning potential, trainability, health, consumption efficiency, information access, and a number of other human consequences. It also promotes civic virtues, family values, social status, technical and cultural understanding, and political involvement. These significant private benefits provide as strong, non-interventionist public incentives for the private education sector.
But education serves more than just one's own interests; it also satisfies broader social obligations. The establishment of a common body of knowledge and values—essential for the upbringing of democratic citizens—occurs in schools. They contribute to social equality by giving individuals of all racial and socioeconomic backgrounds equal opportunities. Furthermore, it is expected that education will play a significant role in furthering economic growth, full employment, cultural and scientific advancement, and national security. All these elements point to the idea that education ought to be viewed as a public good, independent of its role in addressing personal needs.
Unfortunately, the commercialization of education poses a serious threat to India. The privatisation of education, which is typically driven by financial gain, is fostered by the flaws in the public education system. As a result of this commercialization—dubbed "edu-business"—and the unbridled growth of higher education, low-cost private institutions have appeared everywhere. It subverts the principles of social justice and equality of opportunity found in the Indian Constitution. The unrestrained expansion of higher education, which is usually supported by profit-making organisations, has given rise to worries about declining standards and quality. The fact that admission to these schools is often dependent on financial ability violates the principles of non-discrimination and equal access. This commercialization, which also exposes universities to economic interests, undercuts universities' social purpose.
"When the State Government recognises private educational institutions, it creates an agency to fulfil its constitutional duty to ensure that the people can exercise their right to education," the Supreme Court of India admirably stated regarding the obligation of constitutional law to regulate an unregulated free market in higher education. The practise of collecting capitation fees from citizens in exchange for their entrance to educational institutions is blatantly against their fundamental right to an education.
The Indian Constitution's core principles of social justice and equality of opportunity have suffered a severe hit as a result of the commercialization and privatisation of education. Governments are mandated by law to preserve education as a public good and to guard against the forces of commercialization. It is also morally required.
The court made several significant comments that emphasised the importance of education as a state function and a matter of public interest in the historic judgement of Islamic Academy of Education v. State of Karnataka and Others. The court agreed that providing education is fundamentally a governmental function, but it also recognised that the state might encounter obstacles, including budgetary and other constraints, in fully carrying out this responsibility. As a result, private individuals and organisations have stepped up to educate the public, either out of altruism, to defend the rights of minorities, or as a profession.
The decision also emphasised how many privately run educational institutions there are, particularly in industries like medicine, dentistry, and engineering. The court emphasised that although citizens have a basic right to create educational institutions under Article 19(1)(g) of the Constitution, this right is not unqualified. According to Article 19(6) of the Constitution and regulations made according to Article 30 of the Constitution, it may be subject to reasonable limitations set in the public interest.
In the case of the T.M.A. Pai Foundation, it was decided that all citizens, regardless of whether they belong to a minority group or not, had the right to construct and operate educational institutions. This decision introduced the idea of education as an "occupation." This right, which is protected by Article 19(1)(g), is subject to reasonable limitations that serve the general welfare.
The court's emphasis on the importance of maintaining the highest possible educational standards for schools that teach professional training was crucial. In accordance with both Article 19(1)(g) of the Constitution and Article 30 of the Constitution, the state has the right to enact limitations and rules to guarantee this excellence. These rules seek to strike a balance between the need to uphold educational excellence and the breadth of rights enjoyed by independent institutions, whether they are managed by a majority or a minority.
In conclusion, the decision acknowledges the complex character of education while emphasising its importance to the public good and the necessity for rules to protect educational standards while preserving the freedom of people to find and manage educational institutions.
Regulatory Challenges With Regard To Private Universities In India:
India lacks a legally regulated framework for private higher education, therefore individual states must pass their own legislation to create private universities. The State List was replaced with the Concurrent List, giving the Union and state governments joint legislative authority, and the 42nd Amendment, which was ratified in 1976, was the catalyst for this evolution.
Though no private university is allowed to affiliate colleges with the University Grants Commission (UGC), it may currently declare a private university to be covered under Section 12(B) of the UGC Act of 1956. For all private universities, the UGC (Establishment and Maintenance of Standards in Private Universities) Regulations Act of 2003 is primary legislation. In 2012, companies were allowed to provide professional programmes under Section 25 of the Companies Act of 1956 in order to meet the growing need for skilled labour. Automatic foreign direct investment in nonprofit sectors was allowed under Section 8 of the Companies Act of 2013. In line with current legislation, a private university may be run by a trust, society, or non-profit organisation.
It could be established by legislation approved by the state legislature or the Parliament. However, no private university established by the Parliament has been found to be (i) "engaged in teaching programme and research in chosen fields of specialisation, which are innovative, and of very high academic standards at the Master's (or equivalent) and/or research levels; (ii) making distinct contribution to the objectives of the Parliament." Despite this, the central government has granted the status of "deemed to be university" or "de nova" to those already in existence higher education institutions.
Court cases have centred on determining the proper returns on investments in private higher education institutions. Due to claims that certain private institutions utilise public funds for their own financial advantage, there are concerns regarding the commercialization of education. In order to address these problems and ensure system integrity, a robust regulatory framework is necessary. The higher education system in India may benefit greatly from the involvement of private and foreign parties if they are managed appropriately. Increased enrollment in higher education is expected by 2035, which would require substantial funding. Global and private players have a great opportunity to boost India's knowledge-based economy if they manage to exert effective control.
In order to provide students with additional options, India needs to adopt the right regulatory framework, notwithstanding the controversies surrounding the global development of for-profit higher education. For-profit and charity organisations can be helped to establish quality and reputation by requiring mandatory accreditation by unbiased organisations.
Higher education in India needs to realign its ideologies from socialism and capitalism. Finally, India should encourage private higher education institutions that are not-for-profit as well as those that are, as long as they adhere to high standards of quality and regulation, in their attempts to make a substantial contribution to the economic growth and development of the country. The confluence of these principles highlights the need for a balanced approach to maximise the advantages of private higher education in India while maintaining quality and equity.
The commercialization of education brings advantages as well as challenges to India. Private universities are allowed to innovate and broaden their student body, but they have to do it within an environment that prioritises equity, excellence, and the greater good. The Indian Constitution's commitment to education as a fundamental right and guiding principle emphasises the importance of education as a public good. Tight oversight is necessary to ensure that private institutions support the greater social goals.
There are two sides to India's commercialization of education. Private universities carry the risk of creating inequality and decreasing standards, but they also have the ability to broaden access and open possibilities. To attain balance, India should enhance its public education system to provide all residents with access to a top-notch education. Education cannot be considered a privilege. Higher-quality instruction, better facilities, and more money are needed in public institutions. Education ought to be the cornerstone of societal advancement, national development, and personal development. India's educational policies ought to prioritise the requirements of the community at large as well as the students.
To sum up, one must navigate the Indian educational system with caution. A comprehensive approach is needed, one that prioritises accessibility, quality, and equality while enabling the harmonious coexistence of private and public education.