EDUCATION: WHETHER A SERVICE UNDER THE CONSUMER PROTECTION ACT, 1986?
Author : Apurva Gawande
In Ancient era, Education was privilege given to very few in the society. The Guru (Teacher) used to guide his Shishyas (Students) on their path to knowledge and enlightenment. This tradition is famously known as Guru-Shishya Parampara in India. Education in India is always considered as spiritual devotion and is one of the paths to achieve enlightenment.
In 21st century, with the industrial revolution and development in the international trade and commerce, there has been an increase of business and trade. In this regard, to protect the interest of consumers many laws have been enacted. However there is no any effective Act which can protect the rights of students as Consumer from deep rooted network of business of education sector.
EDUCATION IN INDIA
Education in India is of vital importance. The makers of Constitution of India considered education as tool to develop the personality of an individual as well as need for the progress of nation. The importance of education in constitution can be recognized by inclusion of Education in Fundamental Rights, Directive Principles of State Policy and Fundamental Duties. The Articles which recognizes Education as basic human right of an individual are given as follows:
- Right to education.
- Right of minorities to establish and administer educational institutions.
- Right to work, to education and to public assistance in certain cases.
- Provision for early childhood care and education to children below the age of six years.
- Promotion of educational and economic interests of scheduled castes, scheduled tribes and other weaker sections.
- Who is parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.
In the last 20 years, education in India has undergone major transformation. The shift in emphasis from literacy to quality education has organized the education sector but still there is a lot to be done to advance in the field of education and Consumer Protection. Inclusion of Education as Service under Consumer Protection Act is part of it.
DEFINITION OF CONSUMER
A person who purchases a product or avails a service for a consideration either for his personal use or to earn his livelihood by means of self employment. The consideration maybe: Paid and Promised or partly paid and partly promised. The beneficiary of such goods/services is also consumer, when such use is made with the approval of such person.
STUDENT – WHETHER A CONSUMER?
Education has great importance in our society. Therefore important question arises whether a student is consumer or not? There are two opposite views in this regard. According to one view, there is no justification to bring educational institutions and students within the purview of Consumer Protection Act.
According to other view education has been recognized as a fundamental right. Education is closely related to future of the students. A heavy fee is charged from the students for imparting education. Thus, educational institutions and students must be within the purview of the Act. It will be helpful in imparting better education to the students and it will be also in national interest, as the future of the nation depends on the good education. The views of the different Commissions have not been consistent in this regard. Sometimes, the reliefs are granted whereas sometimes relief is denied.
A few rights (non-exhaustive) of the students which are very essential to protect the interest of every student in field of education are mentioned below:
- Right to receive good quality education
- Right to Safety
- Right to get receive all benefits such as library, auditorium, study materials etc.,
- Right to be informed
- Right to be Heard
- Right to Consumer Education
- Right to seek Redressal
There are ample propositions in case law to show that student is a ‘consumer’ and education is ‘service’ under the Consumer Protection Act:
- A candidate who pays fees to a university for appearing in examination is a consumer. Examination and publication of result is a service.
- Failure to issue roll number in time is a deficiency in administrative aspect relating to education service.
- The University is liable for negligence and deficiency of service because the students were deprived of their right to appear in examinations.
- Imparting of education by the state clearly comes within the concept of service as defined under clause (o) sub-section (1) of Section 2 of the Act.
- A student is essentially a consumer of services in an educational institution. Therefore, when there is no service there is no right with the college to appropriate fees. If it insists to college fees without imparting education, it will amount to deficiency.
DEFINITION OF SERVICE
A service of any description which is made available to potential users and includes, but not limited to, the provisions of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.
MEANING AND SCOPE OF THE SERVICE
The word ‘service’ has variety of meanings. The concept of service thus is very wide. The words ‘any’ and ‘potential’ are significant. Both are of wide amplitude. The word ‘any’ means ‘one or some or all’. The use of the word ‘any’ in the context it has been used in the clause (o) indicates that it has been used in wider sense extending from one to all. The other word ‘potential’ is again very wide. Service which is not only extended to actual users but those who are capable of using it is covered in the definition.
EDUCATION – WHETHER A SERVICE?
1. Explanatory and Expandary Definition:
The first part of definition of Service under Act includes any description of service and not limited to the provision which makes definition Inclusive and not conclusive in nature. The second part of definition states that Service is available to potential and actual users who are capable of using it. The students are potential users in sense that education as service is itself created for benefit of students and they are capable of using it. The third part of definition indicates Service should not be free of charge or under a personal service. Education is not free service or contract of personal service as students pay heavy fees as consideration for receiving education.
2. Influence of Advertisement:
Today with modern methods of advertisement in media, every Institution is influencing the minds of parents through various modes of advertisements including print, social and digital media. The object of imparting education by institutions is getting neglected and student as consumer is getting influenced with infrastructure and other promotional activities by paying heavy fees as consideration. The modern methods of advertisement in media influence the mind of the consumers and notwithstanding the manufacturing defect or imperfection in the quality, a consumer is tempted to purchase the goods. For the welfare of such consumer and to protect the consumers from the exploitation to provide protection of the interest of the consumers, Parliament enacted the Consumer Protection Act.
3. Relationship of Student and Educational Institutions/University:
A University is the creation of law made by the Union or State Legislature under Entry 66 of List I- Union List and Entry 32 of List II- State List respectively. Education imparted by University/ Institutions can be classified into two parts: a) Core Services b) Ancillary Services
It includes the objects of the University under Section 5 of Central University Act, 2009.
- To disseminate and advance knowledge by providing instructional and research facilities in such branches of learning as it may deem fit
- To make special provisions in integrated courses in its educational programmes
- To take appropriate measures for promoting innovations in teaching learning process and inter disciplinary studies and research
- To educate and train manpower for the development of the country
- To establish linkages with industries for the promotion of science and technology
- To pay special attention to the improvement of the social and economic conditions and welfare of the people and their development.
These are support services which provided to students to improve the leaning experience and advance academic outcomes. Today ancillary services are important and valuable as every parent looks education as investment to get quality education for their children. Services includes Transport service, hostel or accommodation facilities, library, auditorium, laboratory, gymnasium, canteen, internet service, supplying study material, books, electronic materials etc.
Above services are provided by institutions to students as student is direct beneficiary of all this services by paying fees as consideration. Institution and Student are inseparable. As without student there cannot be institution and vice versa. The relationship between Student and University/Educational Institution shall be of consumer and service provider when a student only after complying the requirements fixed by the university in terms of its rules and guidelines can claim his entitlement as a consumer of service and if the Institution/ University fails to comply with this requirement then it shall be deficiency in service under the Act.
4. Interpretation of Act:
When Court interpret an Act it must take into consideration the existing social conditions and cannot interpret it in a hyper-technical or highly abstract manner which has no connection with the existing social reality. Today Education as Service is existing social reality and present social conditions have influenced the education to be part of Service field.
5. Objects and Reasons of Act:
It is a well known rule of Interpretation of Statutes that the Court must look to the object which the statute seeks to achieve while interpreting any of the provisions of the Act. The object and reasons of Act seeks to promote and protect the rights and interest of consumers. But with Education not part of definition of Service, the administration part of institutions gets free hand to implement the rules and regulations without any manner and process according to the rule of law and students as consumers are devoid of their Consumer Rights leading to ruining their careers and wasting their valuable time.
6. Intention of Legislature:
Education as Service under Act is open to more than one interpretation. Under Twelfth Report on Consumer Protection (Amendment) bill, 2001, CHAPTER II REPORT clause 2.3 proposes The Committee considered the amendment proposed by the Government in details and felt service like Education and matters incidental thereto should be added.
7. Beneficial Legislation:
Ambiguity in legislation should be granting rather than denying the benefit. In interpreting a beneficial legislation enacted to give effect to directive principles of the state policy which is otherwise constitutionally valid, the considerations of the court cannot be divorced from those objectives. A student’s right to education is circumscribed by the limits of the economic capacity of the State and its developments. The Right to Education is implicit in the right to life and personal liberty guaranteed by Art. 21 must be construed in the light of the directive principles in Part IV of the Constitution. Inclusion of Education in Service shall be one step closer towards achieving the Directive Principles of State Policy.
8. Rule of Ejusdem Generis:
The ejusdem generis rule strives to reconcile the incompatibility between specific and general words.
This doctrine applies when-
- The statute contains an enumeration of specific words
- The subject of enumeration constitutes a class or category
- That class or category is not exhausted by the enumeration
- The general term follows the enumeration
- There is no indication of a different legislative intent.
The rule is that where specific words have common characteristics and any general words that follow should be construed as referring generally to that class. Education is similar class or category of subject contained in the statute which provides Service for consideration and to protect the interest of Students as consumer the doctrine of Ejusdem Generis should be applicable for inclusion of Education as Service under the Act.
- Maharshi Dayanand University v Surjeet Kaur
A student had enrolled in two courses simultaneously, one full-time course and one correspondence course. The University discovered that such enrolment being contravention of the rules directed her to enroll only in one course. However, student participated in the both exam and passed in it. However, university refused to confer the degree on student being in contravention of the University rules.
The Supreme Court held that, Statutory laws of the university and consumer protection law both are enacted in order to make the functional activity of the university effective and at the same time to protect the right and interest of the student safe so these two laws should reinforce each other to protect the interest of both student and university.
University has the statutory power to enact laws, make ordinances in respect of functioning of the university. If any action taken by the student in contravention to the existing rules and regulation of the university enforced at the time of the action then the student is liable to face the consequences as per the existing rules. Therefore in these circumstances, the student cannot claim relief available in the Act 1986 as a consumer of service.
- Anand Institute of International Studies v Sanni Jaggi & Others:
The students were aggrieved by an institution due to lack of basic educational facilities and false advertisement misguiding them to undertake admission in such institution. It was further found that the institution also lacked required affiliations and was continuing operations without getting the same.
The NCDRC upheld the decision of the District forum and State Commission and ruled in favor of students observing that, inadequate facilities amounts to deficiency in services and false advertisement further promotes unfair trade practice.
- Manu Solanki & Ors. v Vinayaka Mission Society:
The Vinayaka Mission Society had indulged in deficiency of service and unfair trade practice by inducing students with false assurances to admit in the offshore program comprising of two year study in Thailand and two and half year study in their university to avail final degree of MBBS. It was assured that the University was recognized by the Indian Government and Medical Council of India.
The NCDRC relied upon the ratio of Maharshi Dayanand University v Surjeet Kaur case and concluded that, Institutions rendering education, including vocational courses and activities undertaking during the process of pre-admission as well as post-admission and also imparting excursion tours, picnic, extra co-curricular activities, swimming, sports etc. except Coaching Institutions, will not be covered under the provisions of the Consumer Protection Act, 1986.
The Consumer Protection Act in countries like USA, UK and South Africa is generally applicable to the relationship between universities and undergraduate students studying for purposes which are outside their trade, business or profession. The Consumer rights provide students to get the information in deciding which university and course to choose, to get fair and balanced terms and conditions from university and help students to progress any complaints if they are dissatisfied with an aspect of the educational service.
India has one of the youngest populations in an aging world. Education sector has become deep rooted connected network of business. In country like India where privatization of education sector and unemployment is on rise there is no check and balance system for Institutions/Universities. In view of above mentioned justifications, it is legally and logically supported that Education is Service under the Act. Therefore to conclude, Education should be included in the definition of Service under the Act and University/ Educational Institutions should be within the ambit of Consumer Protection Act, as to protect and promote the interests and welfare of Students as Consumer.
- Art. 21A, Constitution of India.
- Art 30, Constitution of India.
- Art 41, Constitution of India.
- Art 45, Constitution of India.
- Art 46, Constitution of India.
- Art 51A(k), Constitution of India.
- S. 2(1)(d), Consumer Protection Act, 1986.
- Manisha Samuel v Sambalpur University, (1992) 1 CPR 215 (NC).
- Controller of Examination, Himachal Pradesh University v Sanjay Kumar, (2003) 1 CPJ 273 (NC).
- Ravinder Singh v M.D.U. Rohtak, (1996) 1 CPR 86.
- Tilak Raj of Chandigarh v Haryana School Education Board, Bhiwani, (1992) 1 CPJ 76 (P & H).
- Abel Pacheco Gracias v Principal, Bharati Vidyapith College of Engineering, (1992) 1 CPJ 105 (Maha. CDRC).
- S. 2(1)(o), Consumer Protection Act, 1986.
- LDA v M.K. Gupta, AIR 1994 SC 787.
- Skypack Couriers Ltd. v Tata Chemicals Ltd., AIR 2000 SC 2008.
- Ganesh Chandra Bhatt v District Magistrate, Almora, AIR 1993 ALL 291, 295.
- S. Gopal Reddy v State of A. P., AIR 1996 SC 2184.
- The Consumer Protection (Amendment) bill, 2001 (pending).
- Gurucharan Singh v State of Haryana, AIR 1979 P& H 61.
- Unni Krishnan J.P. v State of A.P., AIR 1993 SC 2178.
- Amar Chandra Chakravarthy v Collector of Excise, Government of Tripura, AIR 1972 SC 1893.
- (2010) 11 SCC 159.
- Revision Petition No 767 of 2019 (NCDRC).
- (2020) SCC 7 (NCDRC).