Right To Professional Education, Though Not Fundamental Right, Is Not Govt. Largesse; State Has Affirmative Obligation To Facilitate Access At All Levels: SC

Supreme Court has recently observed that the State has an affirmative obligation to facilitate access to education, at all levels.

"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", 

The bench of Justices D. Y. Chandrachud and M. R. Shah was considering writ petitions by two students, namely, Farzana Batool and Mohammad Mehdi Waziri for directions to facilitate them to be admitted respectively at the Lady Hardinge Medical College, Delhi and the Maulana Azad Medical College, Delhi in terms of the policy and guidelines issued by the Govt. of India, Ministry of Health & Family Welfare through its Office Memorandum dated 9th April 2020 on allocation of Ladakh Central Pool Seats in MBBS/BDS courses for 2020-21.

"We will in the course of this judgment deal of course with the grievance of the two students. But we intend to deal with the issue on a systemic basis so that other students who may lack resources, or simply the knowledge about legal remedies, are not deprived of education", said the bench at the outset.

The bench on Friday directed that the admission process in respect of these two writ petitioners be confirmed within 1 week. With a view to obviate the hardship of moving the Supreme Court, the bench also directed that the other 7 candidates, selected and nominated for the Central Pool Medical Seats (as named in the notification of February 19 issued by the Director of Health Services, Ladakh), be also granted admission to the concerned institutions, if not already given so far.

"We are issuing these general directions in order to obviate the possibility of each of the similarly placed students being required to move this Court. Financial hardship should not prevent the students from getting admission in terms of the allocation which has been made in their favor legitimately under the central pool seats", remarked the bench.

Given that the issue raised in this case concerned access to education, albeit at the professional level, the bench took this opportunity to underscore the importance of creating an enabling environment to make it possible for students such as the petitioners to pursue professional education.

"This obligation (of the State) 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", reflected the bench.

The bench referred to the observations of the Committee on Economic, Social and Cultural Rights, formed to monitor the implementation of International Covenant on Economic, Social and Cultural Rights, which was ratified by India in 1979. The Committee also issued 'General Comment(s)', which function as interpretative tools for the various provisions of the Covenant. "Indeed, as the Committee on Economic, Social and Cultural Rights ("ICESCR Committee") notes in General Comment 13, 'As an empowerment right, education is the primary vehicle by which economically and socially marginalized adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities'", reads the order penned by Justice Chandrachud.

The bench has appreciated that Article 26(1) of the Universal Declaration of Human Rights, which is a source of persuasive value, obligates every State Party to ensure that technical and professional education is made generally available and that higher education is equally accessible to all on the basis of merit. The bench notes that in its General Comment 13, the ICESCR committee outlined four essential features that education at all levels must possess. Pertinently, one such feature is 'accessibility'. Two of the components of accessibility highlighted by the ICESCR Committee bear emphasis. First, the guarantee of non-discrimination, in relation to which it notes that, "education must be accessible to all, especially the most vulnerable groups, in law and fact, without discrimination on any of the prohibited grounds". Second, economic accessibility, meaning that the state party must take steps to ensure that financial constraints do not come in the way of accessing education.

"The ICESCR Committee pertinently notes that disparities in spending policies that result in differing qualities of education for persons residing in different geographic locations may constitute discrimination under the Covenant. Each state party is required, inter alia, to fulfill the right to education, by facilitating and providing for its realization", says the order.

Pursuant to these obligations which India has undertaken by being a signatory to the Covenant, the bench has required that the Union Ministry of Health and Family Welfare and the Director of Health Services, Ladakh shall ensure proper co-ordination so that students allocated colleges under the central pool seats are not put to hardship in enrolling once they have been duly allocated their seats. "Specifically, the Union MHFW and the DHSL can consider appointing a nodal officer tasked with the responsibility of ensuring that students who are duly nominated under the central pool seats are in fact admitted in their chosen course of study. Such an officer can serve as a one-point contact for students who may otherwise face numerous difficulties in securing their admission, even after they have been allocated the seat. The details of such officer can be widely publicized on the websites of the aforesaid two authorities", recommends the top court.

It expressed the opinion that such an institutional framework will ensure that students are not left in the lurch due to lack of help in securing their legitimate admission to the appropriate course. "In this way, it will help remedy the broader problem of which the case before us is a symptom", said the Court.

Farzana Batool Vs Union of India And Others

Citation: LL 2021 SC 213

Lawyers For Petitioner(s) Mr. Neeraj Shekhar, AOR

Click here to download the order