Unni Krishnan J. P. v. State Of A. P. — 1993 DIGILAW 110 (SC)

JUDGMENT SHARMA, C.J.I. (for himself and on behalf of S . P. BHARUCHA, J.):—We have had the benefit of going through the two judgments of our learned Brothers B. P. Jeevan Reddy and S. Mohan, JJ. We are in agreement with the judgment of Brother B. P. Jeevan Reddy, J. except to the extent indicated below. 2. The question which arose in the case of Miss Mohini Jain v. State of Karnataka, (1992) 3 SCC 666 : (1992 AIR SCW 2100), as also in the present cases before us, is whether a citizen has a Fundamental Right to education for a medical, engineering or other professional degree. The question whether the right to primary education, as mentioned in Article 45 of the Constitution of India, is a Fundamental Right under Article 21 did not arise in Mohini Jains case and no finding or observation on that question was called for. It was contended before us that since a positive finding on that question was recorded in Mohini Jains case it becomes necessary to consider its correctness on merits. We do not think so. 3. Learned arguments were addressed in support of and against the aforesaid view which have been noticed in the judgments of our learned Brothers. It was contended by learned Counsel appearing for some of the parties before us that Article 37 in Part IV of the Constitution expressly states that the provisions contained in Part IV shall not be enforceable by any Court and that, therefore, assuming the right under Article 45 to be included within the ambit of Article 21, it would still not be enforceable. Emphasis was also laid upon the language used in Article 45 which requires the State to "endeavour to provide" for the free and compulsory education of children. A comparison of the language of Article 45 with that of Article 49 was made and it was suggested that whereas in Article 49 an "obligation" was placed upon the State, what was required by Article 45 was "endeavour" by the State. We are of the view that these arguments as also the arguments of counsel on the other side and the observations in the decisions relied upon by them consideration, if would need a thorough consideration, necessary by a larger Bench, in a case where .the question squarely arises. 4. We are of the view that these arguments as also the arguments of counsel on the other side and the observations in the decisions relied upon by them consideration, if would need a thorough consideration, necessary by a larger Bench, in a case where .the question squarely arises. 4. Having given our anxious consideration to the arguments in favour of and against the question aforementioned, we are of the view that we should follow the well established principle of not proceeding to decide any question which is not necessary to be decided in the case. We, therefore, do not express any opinion upon this question except to hold that the finding given in Mohini Jains case (1992 AIR SCW 2100) on this question was not necessary in that case and is, therefore, not binding law. We are of the view that if it becomes necessary to decide this question in any subsequent case then, for the reasons set out above and having regard to its vast impact, inter alia on the countrys financial capacity, the question may be referred to a larger Bench for decision. 5. For the purposes of these cases, it is enough to state that there is no Fundamental Right to education for a professional degree that flows from Article 21. MOHAN, J. :- 6. I have had the advantage of perusing the judgment of my learned brother Justice B. P. Jeevan Reddy. Though, I am in agreement with his conclusion, I would like to give my own reasonings. Since my learned brother has set out the facts, I will confine myself to answering the three questions, namely : 1. Whether the Constitution of India guarantees a fundamental right to education to its citizens? 2. Whether there is a fundamental right to establish an educational institution under Art. 19(1)(g)? 3. Does recognition or affiliation make the educational institution an instrumentality? 7. All these matters raise a burning issue; as to how to put an end to the evil of capitation fee or at least to regulate it. 8. As a prelude, the importance of education may be set out. 9. The immortal Poet Valluvar whose Tirukkural will surpass all ages and transcend all religions said of education : "Learning is excellence of wealth that none destroy; To man nought else affords reality of Joy. 10. Therefore, the importance of education does not require any emphasis. 11. 8. As a prelude, the importance of education may be set out. 9. The immortal Poet Valluvar whose Tirukkural will surpass all ages and transcend all religions said of education : "Learning is excellence of wealth that none destroy; To man nought else affords reality of Joy. 10. Therefore, the importance of education does not require any emphasis. 11. The fundamental purpose of Education is the same at all times and in all places. It is to transfigure the human personality into a pattern of perfection through a synthetic process of the development of the body, the enrichment of the mind, the sublimation of the emotions and the illumination of the spirit. Education is a preparation for a living and for life, here and hereafter. 12. An old Sanskrit adage states: "That is Education which leads to liberation" - liberation from ignorance which shrouds the mind; liberation from superstition which paralyses effort, liberation from prejudices which blind the Vision of the Truth. 13. In the context of a democratic form of Government which depends for its sustenance upon the enlightenment of the populace, education is at once a social and political necessity. Even several decades ago, our leaders harped upon universal primary education as a desideratum for national progress. It is rather sad that in this great land of ours where knowledge first lit its torch and where the human mind soared to the highest pinnacle of wisdom, the percentage of illiteracy should be appalling. Today, the frontiers of knowledge are enlarging with incredible swiftness. The foremost need to be satisfied by on education is, therefore, the eradication of illiteracy which persists in a depressing measure. Any effort taken in this direction cannot be deemed to be too much. 14. Victories are gained, peace is preserved, progress is achieved, civilization is built up and history is made not on the battlefields where ghastly murders are committed in the name of patriotism, not in the Council Chambers where insipid speeches are spun out in the name of debate, not even in factories where are manufactured novel instruments to strangle life, but in educational institutions which are the seed-beds of culture, where children in whose hands quiver the destinies of the future, are trained. From their ranks will come out when they grow up, statesmen and soldiers, patriots and philosophers, who will determine the progress of the land. 15. From their ranks will come out when they grow up, statesmen and soldiers, patriots and philosophers, who will determine the progress of the land. 15. The importance of education has come to be recognised in various judicial decisions. 16. In Oliver Brown v. Board of Education of Topeka (U.S. SC Reports (1953) 98 Law Ed 873 at page 880) it was observed : "Today, education is perhaps the most important function of State and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment." 17. Various fundamental rights enumerated under Part III of our Constitution can be divided into two classes. 1. Injunction restraining the State from denying certain fundamental rights like Arts. 14 and 21. 2. A positive conferment of such fundamental rights under Arts. 19, 25 and 26, etc. 18. In this connection, the following passage from Addl. Dist. Magistrate v. S. S. Shukla, 1976 Supp SCR 172 at pp. 229-230 may be quoted : "Part III of our Constitution confers fundamental rights in positive as well as in negative language. Arts. 15(l), 16(l), 19, 22(2), 22(5), 25(1), 26, 29(1), 30 and 32(l) can be described to be Articles in positive language. Articles 14, 15(2), 16(2), 20, 21, 22(l), 22(4), 27, 28(l), 29(2), 31 (1) and (2) are in negative language. It is apparent that most categories of fundamental rights are in positive as well as in negative language. A fundamental right couched in negative language accentuates by reason thereof the importance of that right. The negative language is worded to emphasise the immunity from State action as a fundamental right. (See State of Bihar v. Kameshwar Singh, ( 1952 SCR 889 at pp. 988-89. These fundamental rights conferred by our Constitution have taken different forms. Some of these fundamental rights are said to have the texture of Basic Human Rights (See A. K. Gopalans case (supra) ( 1950 SCR 88 ) at pp. (See State of Bihar v. Kameshwar Singh, ( 1952 SCR 889 at pp. 988-89. These fundamental rights conferred by our Constitution have taken different forms. Some of these fundamental rights are said to have the texture of Basic Human Rights (See A. K. Gopalans case (supra) ( 1950 SCR 88 ) at pp. 96-97, 248-293 and Bank Nationalisation case (supra), ( 1970 (3) SCR 530 ), at pp. 568-71, 576-78).” Article 21 reads as follows: "Perfection of life and personal liberty:- No person shall be deprived of his life or personal liberty except according to procedure established by law." 19. It would be clear that it acts as a shield against deprivation 1993of life or personal liberty. 20. A question may be asked as to why it did not positively confer a fundamental right to life or personal liberty like Art. 19. The reason is, great concepts like liberty and life were purposefully left to gather meaning from experience. They relate to the whole domain of social and economic fact. The drafters of this Constitution knew too well that only a stagnant society remains unchanged. 21. Unlike such rights as required to be enumerated it has long been recognised that the individual shall have full protection in person. It is a principle as old as law. However, it has been found necessary from time to time to define anew the exact nature and the extent of such protection. Political, social and economic changes entail the recognition of new rights and the law in its eternal youth grows to meet the demands of society. The right to life and liberty inhere in every man. There is no need to provide for the same in a positive manner. 22. While dealing with the scope of Art. 21 it was observed in Maneka Gandhi v. Union of India, AIR 1978 SC 597 at pp. 620-21, that : "It is obvious that Art. 21, though couched in negative language, confers the fundamental right to life and personal liberty. So far as the right to personal liberty is concerned, it is ensured by providing that no one shall be deprived of personal liberty except according to procedure prescribed by law. The first question that arises for consideration on the language of Art. 21 is : what is the meaning and content of the words personal liberty as used in this Article? The first question that arises for consideration on the language of Art. 21 is : what is the meaning and content of the words personal liberty as used in this Article? This question incidentally came up for discussion in some of the judgments in A. K. Gopalan v. State of Madras, 1950 SCR 88 and the observations made by Patanjali Sastri, J., Mukherjee, J. and S. R. Das, J. seemed to place a narrow interpretation on the words personal liberty so as to confine the protection of Art. 21 to freedom of the person against unlawful detention. But there was no definite pronouncement made on this point since the question before the Court was not so much the interpretation of the words personal liberty as the inter-relation between Arts. 19 and 21. It was in Kharak Singh v. State of U.P., (1964) 1 SCR 332 , that the question as to the proper scope and meaning of the expression personal liberty came up pointedly for consideration for the first time before this Court. The majority of the Judges took the view "that personal liberty is used in the article as a compendious term to include within itself all the varieties of rights which go to make up the personal liberties of man other than those dealt with in the several clauses of Art. 19(l). In other words, while Art. 19(l) deals with particular species of attributes of that freedom, personal liberty in Art. 21 takes in and comprises the residue". The minority Judges, however, disagreed with this view taken by the majority and explained their position in the following words : "No doubt the expression personal liberty is a comprehensive one and the right to move freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression personal liberty in Art. 21 excludes that attribute. In our view, this is not a correct approach. Both are independent fundamental rights, though there is overlapping. There is no question of one being carved out of another. The fundamental right of life and personal liberty has many attributes and some of them are found in Art. 19. In our view, this is not a correct approach. Both are independent fundamental rights, though there is overlapping. There is no question of one being carved out of another. The fundamental right of life and personal liberty has many attributes and some of them are found in Art. 19. If a persons fundamental right under Art. 21 is infringed, the State can rely upon a law to sustain the action, but that cannot be a complete answer unless the said law satisfies the test laid down in Art. 19 (2) so far as the attributes covered by Art. 19(l) are concerned." There can be no doubt that in view of the decision of this Court in R.C. Cooper v. Union of India, (1970) 3 SCR 530 , the minority view must be regarded as correct and the majority view must be held to have been overruled." (Emphasis supplied) Therefore, it is not correct to state that because the article is couched in a negative language, positive rights to life-and liberty are not conferred as argued by Mr. Tarkunde, learned counsel. 23. This Court in Kharak Singh v. State of U.P., (1964) 1 SCR 332 (345,347 and 349); interpreted the word "liberty" on the lines of the meaning accorded to liberty in the 5th and 14th amendments to the U.S. Constitution by in Munn v. Illinois, (1877) 94 US 113. Accordingly it was held : "Personal Liberty in Art. 21 takes in all the rights of man." 24. The 4th Amendment of U.S. Constitution guaranteed "the right to be secure on their persons, houses ........" 25. This right was read into Art. 21 and it was held that "there cannot be an unauthorised intrusion into a persons home". 26. In Kesavananda Bharati v. State of Kerala, 1973 Supp SCR 1, Mathew, J. stated therein that the fundamental rights themselves have no fixed content, most of them are empty vessels into which each generation must pour its content in the light of its experience. It is relevant in this context to remember that in building up a just social order it is sometimes imperative that the fundamental rights should be subordinated to directive principles. 27. It is relevant in this context to remember that in building up a just social order it is sometimes imperative that the fundamental rights should be subordinated to directive principles. 27. In Pathummas case, (1978) 2 SCR 537 , it has been stated : "The attempt of the Court should be to expand the reach and ambit of the fundamental rights rather than accentuate their meaning and content by process of judicial construction .......Personal liberty in Art. 21 is of the widest amplitude." 28. In this connection, it is worthwhile to recall what was said of the American Constitution in Missouri v. Holland, (1919) 252 US 416 at 433 : "When we are dealing with words that also are constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters." 29. In State of M.P. v. Pramod Bhartiya (1992) 2 Scale 791 , it is stated: "Because clause (d) of Art. 39 spoke of "equal pay for equal work" for both men and women it did not cease to be part of Art. 14. To say that the rule having been stated as a directive principle of State Policy, and not enforceable in Court of law is to indulge in sophistry. Parts IV & III of Constitution are not supposed to be exclusionary of each other. They are complementary to each other. The rule is as much a part of Art. 14 as it is of clause (i) of Art. 16." 30. This Court has held that several unenumerated rights fall within Art. 21 since personal liberty is of widest amplitude. 31. The following rights Are held to be covered under Art. 21 : 1. The Right to go abroad - Satwant Singh v. A.P.O., New Delhi, (1967) 3 SCR 525 . 2. The right to privacy - Govinda v. State of M. P., (1975) 3 SCR 946 . In this case reliance was placed on the American decision in Griswols v. Connection cut, (1965) 381 US 479 at 510. 3. The Right against solitary cofinement -Sunil Batra v. Delhi Administration, (1978) 4 SCC 494 at 545. 4. The Right against Bar fetters - Charles Sobraj v. Supt., Central Jail, (1979) 1 SCR 512 . 5. In this case reliance was placed on the American decision in Griswols v. Connection cut, (1965) 381 US 479 at 510. 3. The Right against solitary cofinement -Sunil Batra v. Delhi Administration, (1978) 4 SCC 494 at 545. 4. The Right against Bar fetters - Charles Sobraj v. Supt., Central Jail, (1979) 1 SCR 512 . 5. The Right to legal aid - Hoskot v. State of Maharashtra, (1979) 1 SCR 192 . 6. The Right to speedy trial - Hussainara Khatoon v. State of Bihar, (1979) 3 SCR 169 . 7. The Right against Handcuffing- Prem Shahkar v. Delhi Administration, (1980) 3 SCR 855 . 8. The Right against delayed execution T.V. Vatheeswaran v. State of Tamil Nadu, AIR 1983 SC 361 (2). 9. The Right against custodial violence - (1983) 2 SCC 96 ; Sheela Bhasre v. State of Maharashtra. 10. The Right against public hanging - A.G. of India v. Lachmadevi, AIR 1986 SC 467 . 11. Doctors Assistance, - Parmananda Katra v. U.O.I., (1989) 4 SCC 286 . 12. Shelter - Santistar Builder v. N. K. Totame, (1990) 1 SCC 520 . 32. If really Art. 21, which is the heart of fundamental rights has received expanded meaning from time to time there is no justification as to why it cannot be interpreted in the light of Art. 45 wherein the State is obligated to provide education up to 14 years of age, within the prescribed time limit. 33. So much for personal liberty. 34. Now coming to life : this Court interpreted in Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 at pp. 183-84 . "It is the fundamental right of everyone in this country, assured under the interpretation given to Art. 21 by this Court in Francis Mullins case, ( AIR 1980 SC 849 ), to live with human dignity, free from exploitation. This right to live with human dignity, free from exploitation. This right to live with human dignity enshrined in Art. 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Art. 39 and Arts. This right to live with human dignity, free from exploitation. This right to live with human dignity enshrined in Art. 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Art. 39 and Arts. 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of childrenagainst abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State - neither the Central Government nor any State Government - has the right to take any action which will deprive a person of the enjoyment of these basic essentials. Since the Directive Principles of State Policy contained in clauses (e) and (f) of Art, 39, Articles 41 and 42 are not enforceable in a Court of law, it may not be possible to compel the State through the judicial process to make provision by statutory enactment or executive fiat for ensuring these basic essentials which go to make up a life of human dignity but where legislation is already enacted by the State providing these basic requirements to the workmen and thus investing their right to live with basic human dignity, with concrete reality and content, the State can certainly be obligated to ensure observance of such legislation for inaction on the part of the State in securing implementation of such legislation would amount to denial of the right to live with human dignity enshrined in Art. 21, more so in the context of Art. 256 which provides that the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State." 35. This, was elaborated in Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545 at pp. 571-573. This, was elaborated in Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545 at pp. 571-573. "As we have stated while summing up the petitioners case, the main plank of their argument is that the right to life which is guaranteed by Art. 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We sees only one answer to that question, namely, that it does. The sweep of the right to life conferred by Art. 21 is wide and far-reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to live. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which propels their desertion of their hearts and homes in the village is the struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live : Only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas, J. in Baksey (( 19 54) 347 MD 442) that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. "Life", as observed by Field, J. in Munn v. Illinois (1877 (94) US 113), means something more than mere animal, existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. State of U.P. ( AIR 1963 SC 1295 ). Article 39(a) of the Constitution, which is a Directive Principle of State Policy, provides that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood. Art. 41, which is another Directive Principle, provides, inter alia, that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work in cases of unemployment and of undeserved want. Art. 37 provides that the Directive Principles, though not enforceable by any Court, are nevertheless fundamental in the governance of the country. The principles contained in Arts. 39(a) and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and content of fundamental rights. Art. 37 provides that the Directive Principles, though not enforceable by any Court, are nevertheless fundamental in the governance of the country. The principles contained in Arts. 39(a) and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and content of fundamental rights. If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Art. 21" (Emphasis supplied) 36. If, thus, personal liberty and life have come to be given expanded meaning, the question to be addressed is, whether life which means to live with dignity, would it be incorrect to hold that life takes within it education as well? To put it more emphatically, whether right to education flows from right to life? Before we go to Mohini Jains case. (1992) 3 SCC 666 , it may be necessary to refer to State of Andhra Pradesh v. Lavu Narendranath (1971) 1 SCC 607 . At page 614 (of SCC (at p. 2567 of AIR) it is stated : "Lastly it was urged that such test affected the personal liberty of the candidates secured under Art. 21 of the Constitution. We fail to see how refusal of an application to enter a medical college can be said to affect ones personal liberty guaranteed under that article. Everybody subject to the eligibility prescribed by the University, was at liberty to apply for admission to the medical college. The number of seats being limited compared to the number of applicants every candidate could not expect to be admitted. Once it is held that the test is not invalid the deprivation of personal liberty, if any, in the matter of admission to a medical college was according to procedure established by law. The number of seats being limited compared to the number of applicants every candidate could not expect to be admitted. Once it is held that the test is not invalid the deprivation of personal liberty, if any, in the matter of admission to a medical college was according to procedure established by law. Our attention was drawn to the case of Spottswood v. Sharpe, ((1953) 98 Law Ed 884), in which it was held that due process clause of the Fifty Amendment of the American Constitution prohibited racial segregation in the District of Columbia. Incidentally the Court made a remark (at p. 887) : "Although the Court has not assumed to define "liberty" with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective. Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause." The problem before (us) is altogether different. In this case everybody subject to the minimum qualification prescribed was at liberty to apply for admission. The Government objective in selecting a number of them was certainly not improper in the circumstances of the case." 37. It requires to be carefully noted that deprivation of personal liberty if done by a valid procedure established by law, the fundamental right under Art. 21 was not, in any manner, affected. That is the crux of this ruling. 38. Now, coming to Mohini Jains case ( 1992 (3) SCC 666 it was observed at pages 679-80 (of SCC . " "Right to life" is the compendious expression for all those rights which the Courts must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. The right to education flows directly from right to life. The right to life under Art. 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. It extends to the full range of conduct which the individual is free to pursue. The right to education flows directly from right to life. The right to life under Art. 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to make an endeavour to provide educational facilities at all levels to its citizens." 39. Education is enlightenment. It is the one that lends dignity to a man as was rightly observed by Gajendragadkar, J. (as he then was) in University of Delhi v. Ram Nath, (1964) 2 SCR 703 at p. 710. "Education seeks to build up the personality of the pupil by assisting his physical, intellectual, moral and emotional development." 40. If life is so interpreted as to bring within it right to education, it has to be interpreted in the light of directive principles. This Court has uniformly taken the view that harmonious interpretation of the fundamental rights vis-a-vis the directive principles must be adopted. We will now refer to some of the important cases. 41. In State of Kerala v. V. M. Thomas, (1976) 1 SCR 906 at 914. It was held : "There is complete unanimity of judicial opinion of this Court that the Directive Principles and the Fundamental Rights should be construed in harmony with each other and every attempt should be made by the Court to resolve apparent inconsistency. The Directive Principles contained in Part IV constitute the stairs to climb the High edifice of a socialistic State and the Fundamental Rights are the means through which one can reach the top of the edifice. The Directive Principles form the fundamental feature and the social conscience of the Constitution which enjoins upon the State to implement these Directive Principles. The Directives thus provide the policy, the guidelines and the end of socio-economic freedom and Arts. 14 and 16 are the means to implement the policy to achieve the ends sought to be promoted by the Directive Principles. So far as the Courts are concerned where there is no apparent inconsistency between the Directive Principles contained in Part IV and the Fundamental Rights mentioned in Part III, there is no difficulty in putting a harmonious construction which advances the object of the Constitution." 42. In Pathumma v. State of Kerala, (1978) 2 SCR 537 at pp. So far as the Courts are concerned where there is no apparent inconsistency between the Directive Principles contained in Part IV and the Fundamental Rights mentioned in Part III, there is no difficulty in putting a harmonious construction which advances the object of the Constitution." 42. In Pathumma v. State of Kerala, (1978) 2 SCR 537 at pp. 545-46, it was observed : " In fact in the case of His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala ( AIR 1973 SC 1461 ) all the Judges constituting the Bench have with one voice given the Directive Principles contained in the Constitution a place of honour. Hegde and Mukherjea, JJ. as they then were have said that the fundamental rights and the Directive Principles constitute the "conscience" of our Constitution. The purpose of the Directive Principles is to fix certain socio and economic goals for immediate attainment by bringing about a non-violent social revolution. Chandrachud, J. observed that our Constitution aims at bringing about a synthesis between Fundamental Rights and the Directive Principles of State Policy by giving to the former a place of pride and to the latter a place of permanence. In a latter case State of Kerala v. N. M. Thomas, (1976) 2 SCC 310 , one of us (Fazal Ali, J.) after analysing the judgment delivered by all the Judges in the Kesvananda Bharatis case ( AIR 1973 SC 1461 ) (supra) on the importance of the Directive Principles observed as follows : "In view of the Principles adumbrated by this Court it is clear that the Directive Principles form the fundamental feature and the social conscience of the Constitution and the Constitution enjoins upon the State to implement these directive principles. The directives thus provide the policy, the guidelines and the end of socio-economic freedom of Arts. 14 and 16 are the means to implement the policy to achieve the ends sought to be promoted by the directive principles. So far as the Courts are concerned where there is no apparent inconsistency between the directive principles contained in Part III, which in fact supplement each other, there is no difficulty in putting a harmonious construction, which advances the object of the Constitution. Once this basic fact is kept in mind, the interpretation of Arts. 14 and 16 and their scope and ambit become as clear as day". Once this basic fact is kept in mind, the interpretation of Arts. 14 and 16 and their scope and ambit become as clear as day". In the case of the State of Bombay v. R.M.D. Chamarbaugwala, ( AIR 1957 SC 699 at p. 719) this Court while stressing the importance of directive principles contained in the Constitution observed as follows : "The avowed purpose of our Constitution is to create a welfare State. The directive principles of State Policy set forth in Part IV of our Constitution enjoin upon the State the duty to strive to promote the welfare of the people by securing and protecting, as effectively as it may, a social order in which justice, social, economic and political, shall inform all the institutions of the national life." In the case of Fatehchand Himmatlal v. State of Maharashtra, ( AIR 1977 SC 1825 at p. 1833) (supra) the Constitution Bench of this Court observed as follows : "Incorporation of Directive Principles of State Policy casting the high duty upon the State to strive to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which justice - social, economic and political - shall inform all the institutions of the national life, is not idle point but command to action. We can never forget, except at our peril, that the Constitution obligates the State to ensure an adequate means of livelihood to its citizens and to see that the health and strength of workers, men and women, are not abused, that exploitation, moral and material, shall be extradited. In short, State action defending the weaker sections from social injustice and all forms of exploitation and raising the standard of living of the people, necessarily imply that economic activities, attired as trade or business or commerce, can be de-recognised as trade or business." In Delhi Development Horticulture Employees Union v. Delhi Administration, Delhi, (1992) 4 SCC 99 at p. 110, it was observed : "There is no doubt that broadly interpreted and as a necessary logical corollary, right to life would include the right to livelihood and, therefore, right to work. It is for this reason that this Court in Olga Tellis v. Bombay Municipal Corporation ( AIR 1986 SC 180 ), while considering the consequences of eviction of the pavement dwellers had pointed out that in that case the eviction not merely resulted in deprivation of shelter but also deprivation of livelihood inasmuch as the pavement dwellers were employed in the vicinity of their dwellings. The Court had, therefore, emphasised that the problem of eviction of the pavement dwellers had to be viewed also in that context. This was, however, in the context of Art. 21 which seeks to protect -persons against the deprivation of their life except according to procedure established by law. This country has so far not found it feasible to incorporate the right to livelihood as a fundamental right in the Constitution. This is because the country has so far not attained the capacity to guarantee it, and not because it considers it any the less fundamental to life. Advisedly, Art. 41 which enjoins upon the State to make effective provision for securing the same "within the limits of its economic capacity and development". Thus even while giving the direction to the State to ensure the right to work, the Constitution makers thought it prudent not to do so without qualifying it." Such a conclusion may not be open to criticism so interpreted it advances social justice. 43. In Vol,VII at pages 909 and 910 of the Constituent Debates (194849) it is stated : "The Honourable Shri K. Santhanam : Sir, you will remember that throughout Europe, after the first World War, all that the minorities wanted was the right to have their own schools, and to conserve their own cultures which the Fascist and the Nazis refused them. In fact, they did not want even the State schools. They did not want State aid, or State assistance. They simply wanted that they should be allowed to pursue their own customs and to follow their own cultures and to establish and conduct their own schools. Therefore I do not think it is right on the part of any minority to depreciate the rights given in Art. 23(l). Sir, in clause (2) of Art. 23 they are protected against discrimination. Therefore I do not think it is right on the part of any minority to depreciate the rights given in Art. 23(l). Sir, in clause (2) of Art. 23 they are protected against discrimination. It is just possible that there may be many provinces based on language and therefore the Government, the ministry and the legislature will be composed dominantly by members of the majority language. This right of non-discrimination will then become fundamental and valuable. And then in clause (3) of this article, it is provided that when the State gives aid to education, it shall not discriminate against any educational institution, on the ground that it is under the management of a minority whether based on community or on language, and this will be particularly applicable to the linguistic minorities. In every province, there are islands of these linguistic minorities. For instance, in my own province of Tamil Nadu there are islands, in almost every district, of villages where a large number of Telugu speaking people reside. In this connection we have to hold the balance even between two different trends. First of all, we have to give to large linguistic minorities their right to be educated - especially in the primary stages - in their own language. At the same time we should not interfere with the historical process of assimilation. We ought not to think that for hundreds and thousands of years to come these linguistic minorities will perpetuate themselves as they are. The historical processes should be allowed free play. These minorities should be helped to become assimilated with the people of the locality. They should gradually absorb the language of the locality and become merged with the people there. Otherwise they will be aliens, as it were, in those provinces. Therefore, we should not have rigid provisions by which every child is automatically protected in what may be called his mother-tongue. On the other hand, this process should not be sudden, it should not be forced. Wherever there are large numbers of children, they should be given education -primary education - in their mother-tongue. At the same time, they should, be encouraged and assisted to go to the ordinary schools of the provinces and to imbibe the local tongue and get assimilated with the people. I feel this clause does provide for these contingencies in the most practicable fashion. Sir, Mr. At the same time, they should, be encouraged and assisted to go to the ordinary schools of the provinces and to imbibe the local tongue and get assimilated with the people. I feel this clause does provide for these contingencies in the most practicable fashion. Sir, Mr. Lari wanted an amendment which seeks to provide that every child, rather that every section of the citizens shall be entitled to have primary education imparted to its children through the medium of the language of that section. I suppose what he means is that wherever primary education is imparted at the expense of the State, such provisions should be made. But this, I think, would give the minority or section of people speaking a language the complete and absolute right to have primary education which the people of this country do not have today. In the directives we have provided that in fifteen years time there should be universal primary education. But no one knows whether the financial and other conditions in the country would permit of universal primary education to be established even then. Today no one in India can ask for primary education as a right as only ten per cent of the population get primary education. Therefore, it is not possible to accept Mr. Laris amendment, because that would lead to all kinds of difficulties. If it were passed, then anyone can go to the SC and say that his child must get education in a particular language. That is not practicable, and I do not think even his intention is at all that. At the same time, I think, what he has pleaded for must be kept in mind as a general policy. It should be direction of the Central and the Provincial Governments to see that wherever there are congregations of boys and girls having a distinct mother tongue, schools should be provided in that language. I hope, that will be the policy adopted all over the country, especially as, if there is going to be new linguistic revisions of the boundaries, all the border areas will be full of this problem. I hope the report of the Linguistic Provinces Commission will contain some wise provisions to be adopted in this behalf. There should be no difficulty or hardship whatsoever in provinces when they are rearranged on a linguistic basis. I hope the report of the Linguistic Provinces Commission will contain some wise provisions to be adopted in this behalf. There should be no difficulty or hardship whatsoever in provinces when they are rearranged on a linguistic basis. For instance, if a Telugu goes to one area or the other, he should not have any hardship. As I said, this is a most difficult and complicated problem and it cannot be dealt with in detail in the fundamental rights. This Article 23 provides as much security as can be done in the Constitution. Other securities will have to be provided for both by Parliamentary and provincial legislation, and I hope it will be done in due course." 44. It is true the framers of the Constitution took that view. But the position as on today is very different. The reason is Art. 45 states as under : "Provision for free and compulsory education for children. - The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years." 45. 14 years, (10 years...... Ed.) spoken to under the Article, had long ago come to an end. We are in the 43rd year of Independence. Yet, if Art. 45 were to remain a pious wish and a fond hope, what good of it having regard to the importance of primary education? A time limit was prescribed under this Article. Such a time limit is found only here. If, therefore, endeavour has not been made till now to make this Article reverberate with life and articulate with meaning, we should think the Court should step in. The State-can be obligated to ensure a right to free education of every child up to the age of 14 years. On his aspect a useful reference could be made to what has been observed in Human Rights and Education Vol 3 edited by Norma Bernstein Tarrow at page 41 : "The State is directed to strive for the right to education, make provision for free and compulsory education (Article 45), and promote the educational interests of Scheduled Castes and Tribes, and other weaker sections (including women). Education is primarily the responsibility of the State Governments, but the Union Government has certain responsibilities specified in the Constitution on matters such as planning, higher education and promotion of education for weaker sections. Most States have enacted legislation for compulsory, education. At the end of the sixth Five Year Plan (1985) primary education for ages 6-11 is free in all States, and for age group 11-14 it is free in all except Orissa, Uttar Pradesh and West Bengal. In these States, girls and members of Scheduled Castes and Tribes get free education, and incentives such as mid-day meals, free books and uniforms are provided. At the secondary stage several States have free education for all children and those which do not make free education available to all do so for girls, Scheduled Castes and Tribes. Thus, free education in all States is provided at the primary and secondary stages for girls, Scheduled Castes and Tribes." Again at page 43 it is stated : "Useful measures of achievement in terms of the right to education are literacy and enrolment levels. The contemporary picture, however, is not as good as one would expect after 39 years of independence. The literacy rate has risen from 16.6. per cent in 1951 to 36.6 per cent according to the 1981 census. But regional variations indicate a range of above 60 per cent literacy in Kerala to below 20 percent in some States. Nearly 120 million in the functional age group of 15-35 are still illiterate (Bhandari, 1981). Over the last three decades of planned development, rapid growth in facilities has attempted to provide access for minorities and girls. The number of educational institutions has more than doubled, while the number of teachers and students has multiplied many times. But despite the fact that 93 percent of the rural population have access to schools, nearly 30 percent of 6-14 year old (60 million) do not go to school and 77 percent drop out. A large percentage of the dropouts are girls and Scheduled Caste and Tribe members. The main problems are socio-economic constraints which result in educational constraints. Poverty is a major cause for keeping children away from school." 46. Article 26(l) of the Universal Declaration of Human Rights states: "Everyone has the right to education. A large percentage of the dropouts are girls and Scheduled Caste and Tribe members. The main problems are socio-economic constraints which result in educational constraints. Poverty is a major cause for keeping children away from school." 46. Article 26(l) of the Universal Declaration of Human Rights states: "Everyone has the right to education. Technical and professional and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit." (Emphasis supplied) 47. In the World of Science and the Rule of Law by John Ziman 1986 Edition at page 49 it is stated : "The principal global treaty which covers this right is the ICESCR, whose Art. 13 recognized the general right to education enunciated by the UDHR, but then goes on to add the following more specific provisions : (2) The States Parties to the present Covenant recognise that, with a view to achieving the full realization of this right : (a) Primary education shall be compulsory and available free to all; (b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education; (c) Higher education shall be made equally accessible to all, on the progressive introduction of free education; (d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education; (e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved. The status of this Article is a useful reminder of the problems inherent in any attempt to create a social right of this kind for individuals against their states." 48. No doubt, the above extract from Mohini Jains case (1992 AIR SCW 2100) (supra) states "education at all levels", but we consider the law has been somewhat broadly stated and, therefore, must be confined to what is envisaged under Article 45. 49. The criticism by Mr. Ashok Desai, learned counsel that Art. 37 has not been adverted to and the reliance on directive principles is untenable, in view of what we have stated above. 50. Higher education calls heavily on national economic resources. 49. The criticism by Mr. Ashok Desai, learned counsel that Art. 37 has not been adverted to and the reliance on directive principles is untenable, in view of what we have stated above. 50. Higher education calls heavily on national economic resources. The right to it must necessarily be limited in any given country by its economic and social circumstances. The States obligation to provide it is, therefore, not absolute and immediate but relative and progressive. It has to take steps to the maximum of its available resources with a view to achieving progressively the full realization of the right of education by all appropriate means. But, with regard to the general obligation to provide education, the State could be said to have violated the same. If it deliberately started its educational system by resources that it manifestly had available unless it could show that it was allocating them to some even more pressing programme. Therefore, by holding education as a fundamental right up to the age of 14 years this Court is not determining the priorities. On the contrary, reminding it of the solemn endeavour, it has to take, under Art. 45, within a prescribed time, which time limit has expired long ago. 51. Mr. K. K. Venugopal, learned counsel contends that in the U. S. SC in the case of San Antonio Independent School District v. Rodringuez (1973) 411 US 1, it was observed : "It is not province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws. Thus the key to discovering - whether education is "Fundamental is not to be found (incomparisons) of the relative societies significances of education as opposed to subsistence or housing ....... Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution." 52. But, if really, the fundamental rights and the directive principles are complementary to each other we are unable to see why this fundamental right cannot be interpreted in this manner. The American Constitution does not have a directive principle like Art. 45. Therefore, the contrary view was struck in San Antonio Independent School District (supra). 53. While dealing with the American Law on this aspect in Vol. The American Constitution does not have a directive principle like Art. 45. Therefore, the contrary view was struck in San Antonio Independent School District (supra). 53. While dealing with the American Law on this aspect in Vol. 57, 1969 California Law Review at page 380 it was stated : "It is true that the quotation from the Brown opinion seems stunningly relevant. Taken literally it would be decisive in some sense upon the question of this Article. Education "must be made available to all on equal terms." From the vantage point of 1968, however, it is no longer clear that Brown was specially concerned about the interest in education. The decision had scarcely appeared before the "fundamental" character of education become the fundamental character of golf and swimming rights, and all the cases since Brown, even the cases involving education, have shown complete pre-occupation with the racial factor. Meanwhile the Court, has done nothing further to suggest that education enjoys a constitutional life of its own." 54. As to the present position of primary education in India, the additional affidavit on behalf of Union of India filed by Mr. H. C. Baveja, Assistant Education Advisor in the Ministry of Human Resources Development, Government of India, Department of Education, New Delhi, puts the position thus : Status of Elementry Education in India 1. Provision of free and compulsory education to all children until they complete the age of 14 years is a Directive Principle of the Constitution. Recognising the need for iterate population and provision of elementary education as a crucial input for nation building, the policy of the Government has been to provide all children the free and compulsory education at least up to elementary level (primary and upper primary level). The 6th Five Year Plan document made a serious reference to the desirability of a time bound plan to achieve universal enrolment. The 7th Plan conveyed a sense of urgency about the need to achieve this objective. This was reinforced mid-way by the National Policy on Education, 1986. Progress over the years : 2. The 6th Five Year Plan document made a serious reference to the desirability of a time bound plan to achieve universal enrolment. The 7th Plan conveyed a sense of urgency about the need to achieve this objective. This was reinforced mid-way by the National Policy on Education, 1986. Progress over the years : 2. Concerted efforts to reach the target has led to manifold increase in institutions, teachers and students as shown in the table below :- Number of Institutions (in lakhs) : 1950-51 1990-91 Primary Schools: 2.10 5.58 (Class I-V) Upper Primary Schools 0.13 1.46 (Class VI-VIII) Total 2.23 7.04 Number of Teachers (In lakhs) : Primary Schools: 5.38 16.36 Upper Primary Schools 0.36 10.59 Total 6.24 26.95 Gross Enrolment Primary Enrolment (in lakhs) 192 991 Gross Enrolment Ratio 43.1 101.03 Upper Primary State: Total Enrolment (in lakhs) 31 333 Gross Enrolment Ratio 12.9 60.11 3. This increase provided Indian Education System with one of the largest systems in the world, providing accessibility within 1 km walking distance of Primary schools to 8.26 lakhs habitations containing about 94 of the countrys population. Growth in enrolment in the decade of 80s showed an accelaration that has now brought enrolment rates close of 100 at primary stage. Free Education : 4. In the endeavour to increase enrolment and achieve the target of UEE, all State Governments have abolished tuition fees in Government Schools run by local bodies and private aided institutions is mostly free in these States. However, in private unaided schools which constitute 3.7 of the total elementary schools in the country, some fee is charged. Thus, overall, it may be said that education up to elementary level in practically all schools is free. Other costs of education such as text books, uniforms, school bags, transport etc. are not borne by States except in a very few cases by way of incentives to children of indigent families or those belonging to Scheduled Caste / Scheduled Tribes categories. The reason why the State Government are unable to bear this additional expenditure is that 96 of ex- penditure on elementary education goes in meeting the salaries of teaching and non-teaching staff. The reason why the State Government are unable to bear this additional expenditure is that 96 of ex- penditure on elementary education goes in meeting the salaries of teaching and non-teaching staff. Compulsory Education : 5.14 States and 4 Union Territories have enacted legislation to make education compulsory but the socio-economic compulsions that keep the children away from schools have restrained them from prescribing the rules and regulations where by those provisions can be endorsed. 55. Thus, it has to be concluded that the right to free education up to the age of 14 years is a fundamental right. 56. The next question is whether there is a fundamental right to establish an educational institution. That takes us to Article 19(l). (g). That reads as follows : " to practrise any profession, or to carry on any occupation, trade or business." 57. The question now is : what is the meaning to be attributed to the words " profession", "occupation", "trade" or "business". 58. In P. Ramanatha Aiyars Law Lexicon Reprint Edition 1987 at page 897 "Occupation" means : "The principal business of ones life, vocation, calling, trade, the business which a man follows to procure a living or obtain wealth; that which occupies or engages ones time or attention, vocation, employment, calling, trade; the business in which a man is usually engaged, to the knowledge of his neighbour." 59. According to Blacks Law Dictionary Fifth Edition at page 973 "Occupation" means : "Possession; control; tenure; use. The act or process by which real property is possessed and enjoyed. Where a person exercises physical control over land. That which principally takes up ones time thought, and energies, especially, ones regular business or employment; also, whatever one follows as the means of making a livelihood. Particular business, profession, trade, or calling which engages individuals time and efforts; employment in which one regularly engages or vocation of his life." 60. In P.V.G. Raju v. Commr. of Expenditure-Tax, (1972) 86 ITR 267 (Andh Pra) it is observed thus : "The activity termed as "Occupation", if of wider import than vocation or profession. It is also distinct from a hobby which can be resorted to only in leisure hours for the purpose of killing time. Occupation, therefore, is that with which a person occupies himself either temporarily or permanently or for a considerable period with continuity of activity. It is also distinct from a hobby which can be resorted to only in leisure hours for the purpose of killing time. Occupation, therefore, is that with which a person occupies himself either temporarily or permanently or for a considerable period with continuity of activity. It is analogous to a business, calling or pursuit. A person may have more than one occupation in a previous year. The Occupations may be seasonal or for the whole year." "Firstly, there can be a business, profession, vocation or occupation without any profit motive or on "no profit no loss basis". To illustrate co-operative societies or mutual insurance companies may carry on business without earning any income or without any profit motive. The vocation or occupation to do social service of various kinds for the uplift of the people would also come under this category. The profit motive or earning of income is not an essential ingredient to constitute the activity, termed as business, profession, vocation or occupation." "If any authority is needed, we find it in Commr. of Expenditure Tax v. Mrs. Manorama Sarabhai, (1966) 59 ITR 262 : ( AIR 1963 Guj 166 ), wherein it was held that the educational activities of the assessees amounted to an occupation within the meaning of S. 5(a) and that no profit motive is necessary to treat an activity as a vocation or occupation within the meaning of S. 5(a). For all these reasons, we must negative this submission of Mr. Ramarao relating to the interpretation of the words "business, profession, vocation or occupation" in S. 5(a) of the Act." 61. In P. K. Menon v. Income Tax Commr. 1959 Supp. (1) SCR 133 at p. 137, this Court observed as follows : "We find no difficulty in thinking that teaching is a vocation if not a profession. It is plainly so and it is not necessary to discuss the various meanings of the word "vocation" for the purpose or to cite authorities to support this view nor do we find any reason why, if teaching is a vocation, teaching of Vedanta is not. It is just as much teaching and, therefore, a vocation, as any other teaching. It is said that in teaching Vedanta the appellant was only practising religion. It is just as much teaching and, therefore, a vocation, as any other teaching. It is said that in teaching Vedanta the appellant was only practising religion. We are unable to see why teaching of Vedanta as a matter of religion is not carrying on of a vocation." "It is said that as the word "Vocation" has been used along with the words "business" and "profession" and the object of business and a profession, is to make a profit, only such activities can be included in the word "Vocation" the object of which likewise is to make a profit. We think that these contentions lack substance. We do not appreciate the significance of saying that in order to become a vocation an activity must be organised. If by that a continuous, or as was said, a systematic actively is meant, we have to point out that it is well known that a single act may amount to the carrying on of a business or profession." 62. The mening of "business" can be gathered from Law Lexicon Edition 1987 by Ramnath Iyer : "Business is that which engages the time, talent and interest of a man" and is what a man proposes to himself. There may be a "Business" without precuniary profit being at all contemplated.