In this case, a resident of Uttar Pradesh state challenged a notification issued by the Karnataka government that permitted private medical colleges to charge higher fees to students who were not allocated 'government seats'. The Supreme Court of India held that the charging of a ‘capitation fee’ by the private educational institutions violated the right to education, as implied from the right to life and human dignity, and the right to equal protection of the law. In the absence of an express constitutional right, the Court interpreted a right to education as a necessary condition for fulfilment of the right to life under Article 21 of the Indian Constitution. In addition, the Court held that private institutions, acting as agents of the State, have a duty to ensure equal access to, and non-discrimination the delivery of, higher education.
In response to a petition filed by an Indian charity, the Supreme Court of India directed the governments of all States and Union Territories to ensure that all schools, whether private or state-run, provide proper toilet facilities, drinking water, sufficient classrooms and capable teaching staff. The court held that, under the Right of Children to Free and Compulsory Education Act (2009) and the Indian Constitution, central, state and local governments have an obligation to ensure that all schools, both public and private, have adequate infrastructure. Adequate infrastructure includes safe drinking water, toilet facilities for boys and girls, sufficient class rooms and the appointment of teaching and non-teaching staff.
In this decision, the Supreme Court of India upheld the constitutionality of section 12 of the Right of Children to Free and Compulsory Education Act (RTE Act), which requires all schools, both state-funded and private, to accept 25% intake of children from disadvantaged groups. However, the Court held that the RTE Act could not require private, minority schools to satisfy a 25% quota, as this would constitute a violation of the right of minority groups to establish private schools under the Indian Constitution. This case affirms that the authority of the State to fulfil its obligations under the right to education can be extended to private, non-State actors. Because the State has the authority to determine the manner in which it discharge this obligation, it can elect to impose statutory obligations on private schools so long as the requirements are in the public interest.
On 12 June 2014, during the June Session of the Human Rights Council, the Portuguese Mission, together with Privatisation in Education Research Initiative (PERI) and the Global Initiative for Economic, Social and Cultural Rights (GI-ESCR), convened a side-event on privatisation and its impact on the right to education at Palais des Nations in Geneva. In this podcast, Anjela Taneja, from the Global Campaign for Education, shares the Indian case.
Parallel Report submitted by the National Campaign for Education-Nepal, the Global Initiative for Economic, Social and Cultural Rights, the Sciences Po law school Clinic, and partners, on the occasion of the Universal Periodic Review (UPR) of Nepal during the 23rd session of the UPR Working Group.
This report shows that the current organisation of education system in Nepal, in particular a high level of unregulated private involvement in education, is creating and entrenching segregation in education. Such segregation in itself constitutes a human rights violation and need to be ended. It is also the source of additional other human rights abuses, including discrimination on the grounds of socio-economic background, gender and race, the limitation of the right to free quality education, and the lowering of education quality. This situation is extremely problematic due to the immediate human rights violations it is causing, but also because the injustices it generates contribute to threatening the fragile social cohesion and peace that exist in Nepal.