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2.The Karnataka Legislature enacted, in the Year 1984, the Karnataka Educational Institutions (Prohibition of Capitation fee) Act. The preamble to the Act recites:

"An Act to prohibit the collection of capitation fee for admission to educations institutions in the State of Karnataka and matters relating thereto;

Whereas the practice of collecting capitation fee for admitting students into educational institutions is widespread in the State; And whereas this undesirable practice beside contributing to large scale commercialisation of education has not been conducive to the maintenance of educational standards; And whereas it is considered necessary to effectively curb this evil practice in public interest by providing for prohibition of collection or capitation fee and matters relating thereto;

6. The Bench which heard and disposed of the writ petition framed four questions as arising for its consideration viz., (i) Is there a 'right to education' guaranteed to the people of India under the Constitution ? If so, does the concept of 'capitation fee' infract the same ? (ii) Whether the charging of capitation fee in consideration of admission to educational institutions is arbitrary, unfair, unjust and as such violates the equality clause contained in Article 14 of the Constitution ? (iii) Whether the impugned notification permits the Private Medical Colleges to charge capitation fee in the guise of regulating fees under the Act ? and (iv) Whether the notification is violative of the provisions of the Act which in specific terms prohibits the charging of capitation fee by any educational institution in the State of Karnataka ?

8.On the second question, the Bench held that "the State action in permitting capitation fee to be charged by state- recognised educational institutions is wholly arbitrary and as such violative of Article 14 of the Constitution of India........... The Capitation fee brings to the fore a clear class bias." Admission of non-meritorious students by charging capitation fees in any form whatsoever strikes at the very root of the constitutional scheme and our educational system. D.P. Joshi does not come to the rescue of the private institutions.

The idea behind the scheme is to eliminate discretion in the management altogether in the matter of admission. It is the discretion in the matter of admission that is at the root of the several ills complained of It is the discretion that has mainly led to the commercialisation of education. 'Capitation fee' means charging or collecting amount beyond what is permitted by law; all the Acts have defined this expression in this sense. We must strive to bring about a situation where there is no room or occasion for the management or anyone on its behalf to demand or collect any amount beyond what is permitted. We must clarify that charging the permitted fees by the private educational institutions which is bound to be higher than the fees charged in similar governmental institutions by itself cannot be characterised as capitation fees. This is the policy underlying all the four States enactments prohibition capitation fees. All of them recognise the necessity of charging higher fees by private educational institutions.