SHARMA, C.J. (alongwith Bharucha, J.) (partly disagreeing) - (1.) THE Judgments of the court were delivered by
(2.) WE have had the benefit of going through the two judgments of our learnedBrothers B.P. Jeevan Reddy and S. Mohan, JJ. WE are in agreement with thejudgment of Brother B.P. Jeevan Reddy, J. except to the extent indicated below. The question which arose in the case of Mohini Jain v. State ofKarnataka as also in the present cases before us, is whether a citizen has afundamental 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 underArticle 21 did not arise in Mohini Jain case' and no finding or observationon that question was called for. It was contended before us that since a positive finding on that question was recorded in Mohini Jain case it becomesnecessary to consider its correctness on merits. We do not think so. Learned arguments were addressed in support of and against theaforesaid view which have been noticed in the judgments of our learnedBrothers. It was contended by learned counsel appearing for some of theparties before us that Article 37 in Part IV of the Constitution expresslystates that the provisions contained in Part IV shall not be enforceable byany 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 theState to "endeavour to provide" for the free and compulsory education ofchildren. A comparison of the language of Article 45 with that of Article 49was 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 alsothe arguments of counsel on the other side and the observations in the decisions relied upon by them would need a thorough consideration, if necessaryby a larger bench, in a case where the question squarely arises.
(3.) HAVING given our anxious consideration to the arguments in favourof and against the question aforementioned, we are of the view that weshould follow the well-established principle of not proceeding to decide any664 question which is not necessary to be decided in the case. We, therefore, donot express any opinion upon this question except to hold that the findinggiven in Mohini Jain case on this question was not necessary in that caseand is, therefore, not binding law. We are of the view that if it becomesnecessary to decide this question in any subsequent case then, for thereasons set out above and having regard to its vast impact, inter alia on thecountry's financial capacity, the question may be referred to a larger benchfor decision. For the purposes of tHESE cases, it is enough to state that there is nofundamental right to education for a professional degree that flows from Article 21.MOHAN, J. (Agreeing);