By Aslam Khan • April 23, 2017•Law School, Other Law School Issues
The Right to Education has now become the fundamental right under Article 21A Constitution of India, although, United Nations (UN) Conventions and the Principles recognized this right many years ago.
Universal Declaration of Human Rights (UDHR), which was adopted in the year 1948 has also recognized the Right to Education under its own Article 26.
Thus, the education does not only make person knowledgeable, but also grooms him to adopt his culture and the values, to be practiced in righteous manner.
Right to Education has been recognized under the Article 136 of International Covenant on Economic, Social and Cultural Rights (ICESCR).
India is under an obligation to implement provisions of Convention against Discrimination in Education, which was adopted on December 14, 1960 by General Conference.
It provides for role of the international organizations in implementation of Right to Education, which is just not limited to preparation of the documents and conducting the conferences and the conventions, but it also undertakes operational programmes, assuring access to education of the refugees, the migrants, the minorities, the indigenous people, the women and the handicaps.
Article 46 of Constitution provides that,
"The State shall promote, with special care, the education and economic interests of the weaker sections of the people, and, in particular of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of social exploitation."
The Articles 330, 332, 335, 338 to 342 and the entire Fifth Schedule and the Sixth Schedules of Constitution deal with special provisions for implementation of the objectives set forth in Article 46. Similarly, the Article 30(1) provides for Rights of Minorities to establish and administer the educational institutions of their choice. Such provisions need to be fully utilized for the benefit of these weaker sections of our society.
Present Indian Education System
Indian Education System, is one of largest educational systems prevalent in world, is divided into two major segments of core and non-core businesses. While, schools and the higher education for come under the core group, the non-core business consists of the pre-schools, the vocational training and the coaching classes.
Indian Education System is divided into stages starting from the Nursery, the Primary, the Secondary, to the Higher Secondary, Graduation and finally Post Graduation.
Regulatory Aspects Under the Indian Constitution
India, being federal set-up and Constitution of India, 1947 places the education as a concurrent responsibility of both Centre and State.
While Centre coordinates and determines the standards in the higher and the technical education, school education remains prerogative of respective states.
It is a settled position that the activity of establishing and/or running education institution cannot be regarded as "trade" or "commerce" falling under the Article 19 (1)(g) ,Constitution of India.
In State of Bombay v. R.M.D. Chamar Baghwala,Supreme Court expounded that “Education is per se a type of activity that is charitable in nature”.
Apex Court in Unni Krishnan v. State of Andhra Pradesh, enunciated that
“Imparting of education cannot be allowed to become commercial activity. Trade or business connotes an activity carried on for a profit motive, and imparting education cannot be regarded as "commerce" in India”.
In TMA Pai Foundation v. State of Karnataka, Supreme Court expounded that,
“Reasonable profits after providing for the investment and the expenditure must be utilized for benefit of educational institutions. Surplus/ profits cannot be diverted for any other use or purposes and cannot be used for the personal gains or other the business or the enterprise”.
 AIR 1957 SC 699
 AIR 1993 SC 2178
 2002) 8 SCC 481