Right to Higher Education Not Fundamental Right But Affirmative State Obligation: SC
9th April 2021, the Supreme Court in Farzana
Batool vs Union of India and Others— CWP No. 364 of 2021 — and Mohammad Mehdi
Waziri vs Union of India — CWP no. 375 of 2021 — held that although the right
to pursue higher (professional) education is not a fundamental right under the
Constitution, the Government has an obligation to facilitate access to
education, at all levels, while cautioning that the Government should not
consider their responsibility as “generosity”.
The Supreme Court was hearing 2 writ petitions
filed by Ms. Farzana Batool and Mr. Mohammad Mehdi Waziri under Article 32 of
the Constitution of India seeking directions to facilitate their admission to
Lady Hardinge Medical College (LHMC) and Maulana Azad Medical College (MAMC)
respectively and enable them to pursue an MBBS degree. The students, despite
being nominated by the Administration of the Union Territory (UT) of Ladakh and
in adherence to the terms of the seats notified by the Union Government from
the central pool, were denied admission.
The petitioner-students from the UT of Ladakh,
strongly contended that denial of admission further to the nomination was a
clear violation of their fundamental right to pursue professional education.
While dealing with the cause of the
petitioners, the Supreme Court observed that access to education, albeit at the
professional level is an important issue, and emphasized the importance of
creating an enabling environment to make it possible for students such as the
petitioners to pursue professional education.
The Supreme Court further substantiated that
accessibility of education assumes far greater importance for students whose
background by virtue of such characteristics as caste, class, gender, religion,
disability, and geographical region imposes formidable obstacles on their path
to accessing quality education.
Relying on the notes of the Committee on
Economic, Social and Cultural Rights (ICESCR Committee) and the Universal
Declaration of Human Rights (UDHR), the Supreme Court pointed out that
“accessibility” is one of the fundamental features in any education ecosystem,
which applies to all levels of education. It was further clarified that
‘accessibility’ in terms of ‘education would mean ‘“accessible to allon the
basis of merit” and the need to take affirmative steps to make sure that “financial
constraints do not come in the way of accessing education”.
The Supreme Court held:
While the right to pursue higher (professional)
education has not been spelt out as a fundamental right in Part III of the
Constitution, it bears emphasis that access to professional education is not a
governmental largesse. Instead, the State has an affirmative obligation to
facilitate access to education, at all levels.
In conclusion, the Supreme Court directed that
the petitioners be admitted immediately at LHMC and MAMC as per the nomination
and ensure that the admission process is completed within a week from the date
of the order. Additionally considering the similar dilemma of the 7 other
students who had been nominated and allocated the Central Pool seats as per the
notification issued by the Ladakh UT Administration dated 19th February 2021,
the court directed they also be granted admissions to the respective nominated
Ankitha Subramanya | Research Intern |
EduLegaL Swapna Iyer| Legal Editor | EduLegaL
The Supreme Court of India has upheld the cause
of justice in the above-discussed case, but I fail to understand why the ‘Right
to Higher Education' is still not judicially declared as Fundamental Right. I
do not see any imminent constraints particularly when ‘education' has been
regarded as a basic 'human right’, across global levels. To not consider ‘Right
to Higher Education as a fundamental right, I believe, is to not giving full
meaning to the ideal of ‘education as a basic human right’.
In any case, ‘elementary education’ is a
fundamental right in India, so it should be natural that this right is extended
and continued so as to assign full meaning to the fundamental right of elementary
education. Breaking the ‘chain’ at the elementary level defeats the right of
elementary education as a ‘fundamental right’.
Ravi Bhardwaj | email@example.com |
The Supreme Court of India has held that even
though the right to pursue higher (professional) education is not a fundamental
right under the Constitution, the Government has an obligation to facilitate
access to education, at all levels, while cautioning that the Government should
not consider their responsibility as “generosity”..