Right to Higher Education Not a Fundamental Right, But Certainly Affirmative Obligation of State: 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 all on 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 institutions.
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 | firstname.lastname@example.org | www.edulegal.org
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