India: Education Sector In India - Legal Perspective & Analysis

By Vinay Vaish, Advocate & Partner – Vaish Associates, Advocates,
email: Phone: +91 11 42492525 & +91 11 42492512 (Direct)


Education, in simple parlance, means to impart knowledge and make it available to others. The word has been derived from the latin word "education" which means "bring up". Thus, education means to bring out what is within you. The term 'education' refers to levels of education, and includes access to education, the standard and quality of education, and the conditions under which it is given.1

It is an expression of knowledge that a person brings out from within himself and imparts it to the other. The meaning of education in social codes and manners, from as early as the 1610s, was "systematic schooling and training for work"2. Hence, education has always meant delivering knowledge, knowhow and skills in an organized place.

Education, in its broadest sense, is the most crucial input for empowering people with skills and knowledge and giving them access to productive employment in future.3It is education that brings out the best in a man. It is training that teaches a man the art of conducting himself in the society, in the best possible manner and with discipline.

The significance of education has been well explained in the case of Brown V. Board of Education4, in following words:

"It is the very foundation of good citizenship. Thus, today education is the principal instrument in awakening the child to cultural values and grooming him for professional training and in helping him to adjust normally to his environment."

Thus, education does not only make a person knowledgeable but also grooms him to adopt his culture and values, to be practiced in the righteous manner.

Right to education has now become a fundamental right under Article 21A of the Constitution of India, although, the United Nations (UN) Conventions and Principles recognized this right many years ago. Universal Declaration of Human Rights (UDHR), which was adopted in 1948 also recognizes the Right to Education under its own Article 26.5

The said Right to Education has also been recognized under Article 136 by the International Covenant on Economic, Social and Cultural Rights (ICESCR) India is under obligation to implement the provisions of the Convention against Discrimination in Education, which was adopted on December 14, 1960 by the General Conference. It provides for the role of international organizations in the implementation of the right to education, which is just not limited to the preparation of documents and conducting conferences and conventions but it also undertakes the operational programmes, assuring access to education of refugees, migrants, minorities, indigenous people, women and handicaps.

Article 46 of the Indian Constitution states that, "The State shall promote, with special care, the education and economic interests of the weaker sections of the people, and, in particular of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of social exploitation." Articles 330, 332, 335, 338 to 342 and the entire Fifth and Sixth Schedules of the Constitution deal with special provisions for implementation of the objectives set forth in Article 46. Similarly, Articles 30(1) provides for the rights of the minorities to establish and administer educational institutions of their choice. These provisions need to be fully utilized for the benefit of these weaker sections in our society.


Education in India has a rich and interesting history. In the ancient days, education was imparted orally by sages and scholars and thus, information passed on from one generation to the other. Later, the 'Gurukul System' of education, which set up the traditional Hindu residential schools of learning came into existence and flourished. It is in these gurukuls that children from all strata in society studied ranging from Princes of States to their subjects.

The first university in the World was established at Takshila in 700BC and thereafter, higher education flourished at Nalanda, Ujjain and Vikramshila Universities. As per the writings of British historians and educationists, education flourished in India in the 18th century, with a school in every temple or mosque in the villages in most regions of the country. The main subjects were art, architecture, painting, logic, grammar, philosophy, astronomy, literature, Buddhism, Hinduism, Arthashastra, law and medicine.

The present system of education, having western style and content, was introduced and founded by the British rule in the 20th century, at the recommendations of Lord Macaulay.


The Indian education system, considered as one of the largest in the world, is divided into two major segments of core and non-core businesses. While, schools and higher education for the core group, the non-core business consists of pre-schools, vocational training and coaching classes.

The education sector in India is also considered as one of the major areas for investment as the entire education system is going through a process of overhaul, according to a report 'Emerging Opportunities for Private and Foreign Participants in Higher Education'.

The Indian Education System, like everywhere else in the world, is divided into stages starting from Nursery, Primary, Secondary, to Higher Secondary, Graduation and Post Graduation. The Pre-Primary or Nursery has Lower Kindergarten and Upper Kindergarten, where basic reading and writing skills are taught and developed. The Primary School has children between the ages of six and eleven. It has organized classes from one to five where basic knowledge of languages, calculations and reading and writing skills are enhanced to make the child well versed with the language.

The Secondary School has children between the ages of eleven and fifteen and the classes are organized from six to ten and whereas, the Higher Secondary school has students between the ages of sixteen and eighteen and the classes are organized as eleventh and twelfth, respectively. In some States, the classes between six and eight are also referred as the Middle School and those between eight and ten are referred as the High School. Higher Secondary School plays a pivotal role in laying the foundation of the future course of discipline a child may want to adopt. It provides education to specialize in a field and there are different streams available for the same.


India, being a federal set-up and the Constitution of India, 1947 ("Constitution") places education as a concurrent responsibility of both the Centre and the State. This is to say, that while the Centre coordinates and determines the standards in higher and technical education, the school education remains the prerogative of the respective states.

Notably, it is a settled position that the activity of establishing and/or running an education institutioncannot be regarded as "trade" or "commerce" falling under Article 19 (1)(g) of the Constitution. In the case of State of Bombay v. R.M.D. Chamar Baghwala (AIR 1957 SC 699), the Supreme Court of India held that education is per se an activity that is charitable in nature. It was further held by the Supreme Court in the case of Unni Krishnan v. State of Andhra Pradesh (AIR 1993 SC 2178), that imparting education cannot be allowed to become commerce. Trade or business connotes an activity carried on for a profit motive, and imparting education cannot be regarded as "commerce" in India.

Additionally, in the case of Aditanar Educational Institution v. Addl. CIT (224 ITR 310), the Supreme Court was of the view that if after meeting the expenditure, a surplus resulted incidentally from an activity lawfully carried on by an education center, such an institution would not cease to be one that was existing solely for educational purposes since the underlying object was not to make profit. However, as was held in TMA Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, reasonable profits after providing for investment and expenditure must be utilized for the benefit of the educational institutions. Surplus/ profits cannotbe diverted for any other use or purposes and cannotbe used for personal gains or other business or enterprise.

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1. Article 1 (2)of Convention against Discrimination in Education: (2)For the purposes of this Convention, the term 'education' refers to all types and levels of education, and includes access to education, the standard and quality of education, and the conditions under which it is given.


3.11th Five Year Plan-http://planning

4. 347 U.S. 483 (1954)

5. Article 26 of UDHR:

(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.

(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.

(3) Parents have a prior right to choose the kind of education that shall be given to their children.

6.Article 13 of ICESCR:

1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.

2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right:

(a) Primary education shall be compulsory and available free to all;

(b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education;

(c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;

(d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education;

(e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.

3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.

4. No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph I of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.

© 2014, Vaish Associates, Advocates,
All rights reserved with Vaish Associates, Advocates, 10, Hailey Road, Flat No. 5-7, New Delhi-110001, India.

The content of this article is intended to provide a general guide to the subject matter. Specialist professional advice should be sought about your specific circumstances. The views expressed in this article are solely of the authors of this article.

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Vinay Vaish, Partner, Vaish Associates Advocates
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