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N.K.Assumi (Advocate)     04 July 2009

Fundamental right in professional degree?

Does the citizen of India have a fundamentalRight to professional degree like Engineering, Medical, Law degree etc? Does Rights to Life as envisaged under Article 21 of the Constitution of India can flow into Article 45 of the Constitution of India towards Free and compulsory Primary Education as a Fundamental Rights?



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 6 Replies

Shree. ( Advocate.)     04 July 2009

Dear Assumi Sir,

 Regarding your query i have attached the judgement of Hon'ble Apex court.Pls go through the attached file....

 Reference:Unni Krishnan, J.P. & Ors. v. State of Andhra Pradesh & Ors. Cited as: 1993 AIR 217, 1993 SCR (1) 594, 1993 SCC (1) 645, JT 1993 (1) 474, 1993 SCALE (1)290


Attached File : 48 unni krishnan judgment.doc downloaded: 111 times

Shree. ( Advocate.)     04 July 2009

For quick reference:

Thematic focus:  Children‘s Rights, Directive Principles, Education Rights
Forum and Date of Decision: Supreme Court of India, February 4, 1993
 
Unni Krishnan, J.P.  & Ors. v. State of Andhra Pradesh & Ors. Cited as: 1993 AIR 217, 1993 SCR (1) 594, 1993 SCC (1) 645, JT 1993 (1) 474, 1993 SCALE (1)290
 
Nature of the case
Constitutional challenge querying whether the “right to life” in Article 21 of the Constitution of India guarantees a fundamental right to education to citizens of India; role of economic resources in limiting right to education; interplay between Directive Principles and State Policy in the Constitution and Fundamental Rights; whether the right to education includes adult professional education.
 
Summary
The case involved a challenge by certain private professional educational facilities to the constitutionality of state laws regulating capitation fees charged by such institutions.  

The Supreme Court held that the right to basic education is implied by the fundamental right to life (Article 21) when read in conjunction with the directive principle on education (Article 41). The Court held that the parameters of the right must be understood in the context of the Directive Principles of State Policy, including Article 45 which provides that the state is to endeavor to provide, within a period of ten years from the commencement of the Constitution, for free and compulsory education for all children under the age of 14. The Court ruled that there is no fundamental right to education for a professional degree that flows from Article 21.  It held, however, that the passage of 44 years since the enactment of the Constitution had effectively converted the non-justifiable right to education of children under 14 into one enforceable under the law.  After reaching the age of fourteen, their right to education is subject to the limits of economic capacity and development of the state (as per Article 41).  Quoting Article 13 of the International Covenant on Economic, Social and Cultural Rights, the Court stated that the state's obligation to provide higher education requires it 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.
Enforcement of the decision and other outcomes
The state responded to this declaration nine years later by inserting, through the Ninety-third amendment to Constitution, Article 21-A, which provides for the fundamental right to education for children between the ages of six and fourteen. In addition, several States in India have passed legislation making primary education compulsory. These statutes “have however remained un-enforced due to various socio-economic and cultural factors as well as administrative and financial constraints. There is no central legislation making elementary education compulsory.” (see Kothari below).
 
Significance of the case
The Court in Unni Krishnan expressed its disagreement with the finding in the earlier case of Mohini Jain vs state of Karnataka1992 AIR 1858 that the right to education at all levels is guaranteed by the Constitution. In the subsequent case of M.C. Mehta v State of Tamil Nadu & Ors  (1996) 6 SCC 756; AIR 1997 SC 699, the Supreme Court stated that Article 45 had acquired the status of a fundamental right following the Constitutional Bench's decision in Unni Krishnan.  

In addition, the Court said that, in order to treat a right as fundamental right, it is not necessary that it should be expressly stated as one in Part III of the Constitution: “the provisions of Part III and Part IV are supplementary and complementary to each other”. The Court rejected that the rights reflected in the provisions of Part III are superior to the moral claims and aspirations reflected in the provisions of Part  IV.
 

 

prof s c pratihar (medical practitioner &legal studies)     04 July 2009

great thanks

Rekha..... ( Practicing lawyer(B.Com LL.M in Business law ))     04 July 2009

thanks for this discussion.....please hv more comments on this topic.

N.K.Assumi (Advocate)     05 July 2009

But Shree, in Mohni Jain case issue was not whether right to primary education as mentioned in Article 45 of the Constitution is a fundamental right under Article 21 of the Constitution of India, am I right?

N.K.Assumi (Advocate)     05 July 2009

Dear Shree, thank you for your valuable thematic discussions and case citation on one of the most important topic on Fundamental Rights.On behalf of all of us I thank you.


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