Constitutionally, health and education are seen as rights resting on an equivalent platform: both are part of the fundamental right to life under Article 21, both are vested as a duty upon the state under the directive principles of state policy and basic access to both is intrinsically linked to every person’s right as a citizen of India. However, the implementation of both the rights has been in different tangents. While the right to health has been seen as a sole duty of the government with freedom with the private sector to provide health care for commercial purposes (except in a few states where provision for free treatment of economically weaker sections is mandated), the right to education has been interpreted as a duty of the government with power with the government (and by default with the judiciary) to control and regulate all private sector educational institutions all levels, whether it is the fee that can be charged, the admissions in the institutions or regulation of the coursework.

It is perplexing why, although both the subjects are seen at par in terms of being a social and fundamental right of all citizens,  the private sector is being permitted to operate institutions in health sector on a commercial basis and why any private sector educational institution is so heavily regulated by the executive as well the judiciary in almost all facets of their functioning.

If both these rights are examined, it is evident that the judiciary has played a critical role in defining the government powers and duties. With respect to healthcare, using the fundamental rights and directive principles of state policy, the supreme court has been reiterating the right to health since for decades. In Bandhua Mukti Morcha case in 1984, the court held that the right to live with human dignity also involves right to “protection of health”. In 1989, the court held that every medical practitioner is professionally obligated to treat emergency cases with expertise and cannot refuse to offer treatment to such cases (Parmanand Katrav. Union of India). In 1995, the SC for the first time explicitly held that right to health and medical care is a fundamental right and it makes the life of the workman meaningful and purposeful with the dignity of person. (Consumer Education and Research Centre vs. Union of India). Subsequently, next year in Paschim Banga Khet Mazdoor Samity and Ors., vs. State of West Bengal, the SC held that it is the primary duty of a welfare state to ensure that medical facilities are adequate and available to provide treatment. While principally the courts have recognised the rights, except in a few cases, they have not given specific directives to the government or the healthcare institutions on their operation, their governance, the charges by doctors or negligence. One case relating to Delhi, which merits mention is a 2002 PIL filed by social jurist where the Delhi high court decreed that 10 percent of the total beds in the IPD must be reserved and 25 percent of the patients in the OPD should be treated free of cost if the patient belonged to the poorer sections. The court also observed that government hospitals should refer poor patients to private hospitals where the requisite facilities are available. However, the directions in this case were not implemented following which in a recent judgement the SC has directed 10 Delhi-based hospitals to comply with the above court guidelines.

This is contrary to the court engagement as far as education is concerned. Beginning with the Unnikrishnan case in 1993, where the court recognised the right of every citizen to education between the ages of 6 and 14 years and gave directions for admissions and fee structure in private institutions, the judiciary have touched upon almost all aspects of governance of educational institutions. Regulation of minority institutions, administrative functioning of institutions, fee structure, admission process all have been touched upon by the courts. The SC’s intervention led to inclusion of Right to Education as a fundamental right through a constitutional amendment in 2002 followed by enactment of a law on Right to Education Act (RTE Act) in 2009. What is interesting to note is that when the Right to Education Act was enacted, a similar bill relating to national health was also introduced in 2009. Though this bill does not recognise the right to healthcare in a manner similar to Right to Education, it still does looks at healthcare from a holistic perspective and spells out the obligations of the centre and state. This bill though drafted, is yet to be passed by the parliament.

An analysis of the judicial pronouncements on education reveals that there are several reasons why the judiciary has seen education as a right which needs greater intervention. One reason is that why the courts feel that the school level education system needs government intervention is the provision of land for such institutions by the government. This provision makes these educational institutions “aided”. As a result, school or college set up on the land granted by the government is deemed to be a “private-aided educational institution”, which is bound to reserve seats for economically weaker sections, give admission on the basis of ‘distance points’ specified by the government/judiciary and restrained from levying the fees that it wants. A classic example of this is the recent order by the Delhi high court directing the Delhi government to take steps to refund guardians after recovering excess fees to the tune of Rs 350 crore that 555 unaided schools in the capital had collected “illegally”. The fee was declared to be illegal since the fee charged for teaching staff was over the recommendations of the sixth pay commission.
On the contrary, though the government allocates land in a similar manner for setting up of private hospitals, except for the above mentioned case in the context of Delhi and a couple of other states, a private hospital so set up is never considered to be an “aided institution” and their consultation charges or charges for treatment, surgeries, etc., are free to be discretionary.
If despite the fundamental “right to health” recognised under Article 21 of the constitution, private hospitals can operate for commercial interests without being bound on the charges they levy for OPD, consultations, hospital beds or pathological tests, why should educational institutions not be vested with the same freedom?

By limiting and restricting the fee and the curriculum, there emerges a limitation on the infrastructure facilities that the school can invest in as well as the remuneration schools can pay to their staff. From the child’s perspective, this in turn would have an impact on the education and overall growth of the child.

From the staff’s perspective, as well as have an impact on their work efficiency, their longevity in the institution (after all with low remuneration, everyone would want to move on to better options) and more importantly have an impact on how people view taking up teaching as a profession (private tuitions would seem more attractive). Once again this would affect the intellectual stimulus with which our children are taught and have a direct impact on their development.

The point that is being made is not to oppose the operation of private healthcare or the regulatory framework for education – its more to balance the governance of both – over regulation of the educational institutions whether aided or unaided as well as under regulation of the private medical healthcare.

Jain is officer on special duty (legal), NITI Aayog. Views expressed are personal.

(The article appears in the November 15, 2017 issue)