JUDGMENT

SHARMA, C.J.I. (for himself and on behalf of S . P. BHARUCHA, J.):—We have had the benefit of going through the two judgments of our learned Brothers B. P. Jeevan Reddy and S. Mohan, JJ. We are in agreement with the judgment of Brother B. P. Jeevan Reddy, J. except to the extent indicated below.

2. The question which arose in the case of Miss Mohini Jain v. State of Karnataka, (1992) 3 SCC 666: (1992 AIR SCW 2100), as also in the present cases before us, is whether a citizen has a Fundamental Right to education for a medical, engineering or other professional degree. The question whether the right to primary education, as mentioned in Article 45 of the Constitution of India, is a Fundamental Right under Article 21 did not arise in Mohini Jains case and no finding or observation on that question was called for. It was contended before us that since a positive finding on that question was recorded in Mohini Jains case it becomes necessary to consider its correctness on merits. We do not think so.

3. Learned arguments were addressed in support of and against the aforesaid view which have been noticed in the judgments of our learned Brothers. It was contended by learned Counsel appearing for some of the parties before us that Article 37 in Part IV of the Constitution expressly states that the provisions contained in Part IV shall not be enforceable by any Court and that, therefore, assuming the right under Article 45 to be included within the ambit of Article 21, it would still not be enforceable. Emphasis was also laid upon the language used in Article 45 which requires the State to "endeavour to provide" for the free and compulsory education of children. A comparison of the language of Article 45 with that of Article 49 was made and it was suggested that whereas in Article 49 an "obligation" was placed upon the State, what was required by Article 45 was "endeavour" by the State. We are of the view that these arguments as also the arguments of counsel on the other side and the observations in the decisions relied upon by them consideration, if would need a thorough consideration, necessary by a larger Bench, in a case where .the question squarely arises.

4. Having given our anxious consideration to the arguments in favour of and against the question aforementioned, we are of the view that we should follow the well established principle of not proceeding to decide any question which is not necessary to be decided in the case. We, therefore, do not express any opinion upon this question except to hold that the finding given in Mohini Jains case (1992 AIR SCW 2100) on this question was not necessary in that case and is, therefore, not binding law. We are of the view that if it becomes necessary to decide this question in any subsequent case then, for the reasons set out above and having regard to its vast impact, inter alia on the countrys financial capacity, the question may be referred to a larger Bench for decision.

5. For the purposes of these cases, it is enough to state that there is no Fundamental Right to education for a professional degree that flows from Article 21.

MOHAN, J. :- 6. I have had the advantage of perusing the judgment of my learned brother Justice B. P. Jeevan Reddy. Though, I am in agreement with his conclusion, I would like to give my own reasonings. Since my learned brother has set out the facts, I will confine myself to answering the three questions, namely :

1. Whether the Constitution of India guarantees a fundamental right to education to its citizens?

2. Whether there is a fundamental right to establish an educational institution under Art. 19(1)(g)?

3. Does recognition or affiliation make the educational institution an instrumentality?

7. All these matters raise a burning issue; as to how to put an end to the evil of capitation fee or at least to regulate it.

8. As a prelude, the importance of education may be set out.

9. The immortal Poet Valluvar whose Tirukkural will surpass all ages and transcend al