HRD minister Kapil Sibal has made an astonishingly uncompassionate statement that fees of private schools could not be regulated. This comes in the midst of nursery admissions, one of the toughest seasons for young parents to see their ward take a tiny step towards exercising its right to education, now a fundamental right.
He made amends the next day and clarified that he was against profiteering by schools in the form of excess fees or demanding capitation charges. Against a profound statement allowing schools to run wild in fixing fees for students, nay parents, the minister came out with a whimper of a personal rejoinder saying he was against capitation fee.
There cannot be anything personal in matters of capitation fee or overcharging. Education is a serious matter and no one knows it better than Sibal, who as a top lawyer must have known from numerous Supreme Court judgments -- starting from Miss Mohini Jain vs State of Karnataka  to P A Inamdar vs State of Maharashtra  -- that the ball lies firmly in the government's court to prevent commercialisation of education. If the stinging judgments of the top court against profiteering and capitation fee are the law of the land and must be implemented by governments as mandated by Article 141 of the Constitution, then the schools, even if run by private or minority management, will find it impossible to pinch the last penny from parents.
Let us first take a look at the Mohini Jain judgment of the Supreme Court, which was pronounced at a time when liberalisation as a government policy was testing waters and commercialisation of education was not as big a menace it is now. In 1992, right to education was part of the unenforceable Directive Principles, traditionally considered by governments as idealistic preachings of the Constitution. The apex court did not think so and said Directive Principles were not mere pious declarations but of vital importance to the country's future.
Terming right to education to be a fundamental right even two decades back, the SC had said grant of recognition to private institutions by the state was creation of an agency by the government to fulfil its obligation under the Constitution to provide educational facility at all levels to citizens. "The students are given admission to the educational institution -- whether state-owned or state-recognised -- in recognition of their right to education under Constitution," it had said.
What the top court said in the two succeeding paragraphs is a must read for Sibal. It said, "Charging capitation fee in consideration of admission to educational institutions is a patent denial of a citizen's right to education under the Constitution. Capitation fee is nothing but a price for selling education. The concept of teaching shops is wholly abhorrent to Indian culture and heritage."
After more than 13 years, with liberalisation spreading prosperity and greed in equal proportions, the Supreme Court in P A Inamdar case again dealt with the topic of capitation fee. The judicial thinking, except for exclusion of the `culture and heritage' aspect, did not appear to have undergone much change as far as capitation fee was concerned. A 7-judge constitution Bench emphatically declared that the state was duty bound to prevent charging of capitation fee. "The charging of capitation fee by unaided minority and non-minority institutions is just not permissible," it had said. Can anything be clearer than this?
Concluding, the apex court said, "Every institution is free to devise its own free structure but the same can be regulated in the interest of preventing profiteering. No capitation fee can be charged."
So, even if educational institutions have freedom to fix the fee structure, they cannot indulge in profiteering. If they do so despite these judgments imposing an unambiguous ban on capitation fee and overcharging, then it is the government which should be held liable for being irresponsible both towards the citizen and the Constitution, which says law declared by the Supreme Court shall be enforceable throughout the country.