The right to education: Mohini Jain v State of Karnataka (1992) and Unni Krishnan J.P. v State of Andhra Pradesh (1993)

This is the best worked example in Indian law of an economic, social and cultural right being made judicially enforceable, and of the limits the courts then had to impose on themselves when they saw the cost.

Mohini Jain declared the right. Unni Krishnan tested it and cut it down to what a State could actually deliver. Read together they teach the central difficulty of the Covenant on Economic, Social and Cultural Rights: a right whose realisation depends on resources cannot be enforced in the same way as a right whose realisation depends only on the State leaving people alone.

The sequel is constitutional. The Constitution (Eighty-sixth Amendment) Act 2002 inserted Article 21A - the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine - together with the parallel fundamental duty in Article 51A(k), which falls on a parent or guardian to provide opportunities for education to his child or ward between the age of six and fourteen years. The judicial right became a textual one.

Facts. The petitioner challenged a Karnataka notification relating to the collection of capitation fees for admission to medical courses.

Held. The Court analysed the right to education as both a constitutional and a human right, referring to the Universal Declaration, and ruled that capitation fees should be abolished.

The two passages to know.

On dignity: "An individual cannot be assured of human dignity unless his personality is developed and the only way to do that is to educate him." Note the shape of the argument - it does not start from a text that says education. It starts from dignity, which is the organising idea of the whole of international human rights law, and derives education from it as a necessary condition.

On the Declaration and Part IV: the Court pointed to Article 26 of the Declaration, which requires that education be directed to the full development of the human personality, and then made the constitutional move that matters: "The directive principles which are fundamental in the governance of the country cannot be isolated from the fundamental rights guaranteed under Part III. These principles have to be read into the fundamental rights. Both are supplementary to each other." Articles 41 and 45 - the State's duty to make effective provision for the right to education within the limits of its economic capacity, and its duty regarding early childhood care and education - are thereby made to inform Article 21.

That sentence about reading Part IV into Part III is the single most examinable proposition on the relationship between the two Parts, and it should appear in any answer on that topic.

Facts and question. The Court tested the validity of Mohini Jain in relation to higher education.

Held. A fundamental right to education up to the age of fourteen was accepted. Beyond that age, the right must be subject to the economic capacity of the State. Private institutions, however, should not be permitted to charge exorbitant fees.

The separate opinion. The opinion of Mohan J differs slightly and justifies higher education for a legally justifiable fee; it refers to Article 26(1) of the Declaration and to Article 13 of the Covenant on Economic, Social and Cultural Rights to justify the right to basic education and the economic limitations on higher education. That opinion also records the difficulty candidly - it describes the status of the article as a useful reminder of the problems inherent in any attempt to create a social right of this kind for individuals against their States.

Quote that difficulty. It is the honest statement of the problem, from the bench, and it will earn more than a page of assertion that economic and social rights are just as important as civil and political ones.

The distinction the Court drew is between two things that are easy to confuse.

Whether a right exists is a question of principle. On principle, education is an aspect of dignity, dignity is the content of Article 21, and so education is within Article 21. Nothing about that reasoning stops at fourteen.

Whether a court can enforce a right is a question of institutional competence. A direction to provide universal free higher education would commit the exchequer to expenditure that only a legislature can authorise, and a court cannot allocate a budget. So the Court enforced the right up to the age at which Article 45 as it then stood had itself set a target, and beyond that converted it into a duty measured by the State's economic capacity.

This is precisely the distinction the Covenant on Economic, Social and Cultural Rights draws in its own Article 2(1), which obliges each State Party to take steps, individually and through international assistance and co-operation, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in it. Progressive realisation to the maximum of available resources is the Covenant's answer to the same problem, and Unni Krishnan is the Indian version of it.

On the right to education: Mohini Jain (right declared, capitation fees abolished, Article 26 of the Declaration), Unni Krishnan (right confined to fourteen, higher education subject to economic capacity, Article 13 of the Covenant), Article 21A and Article 51A(k) inserted in 2002.

On the relationship between Parts III and IV: quote the sentence that the directive principles must be read into the fundamental rights and that both are supplementary to each other.

On economic, social and cultural rights generally: use the pair as the worked illustration, and connect it to Article 2(1) of the Covenant on progressive realisation. That connection is what turns a domestic answer into a human rights answer.