IS EDUCATION A SERVICE UNDER CONSUMER PROTECTION ACT 1986?

ABSTRACT:

Education in India, since ancient times, is always considered to be a privilege which was provided to the wealthy people in the society. However, with the advent of the Industrial Revolution and the modernization in the society, education is considered as a necessity. The Constitution of India has included education as a basic human right in order to live a proper life. The main question which arises from this topic is whether education falls under the ambit of ‘services’ or not. With the development of international trade and commerce, there has been an increase of business and trade, leading to the passing of the consumer protection act 1986. Unfortunately, there are no acts which can protect the rights of the students as consumers from networks of the educational sector.

KEYWORDS:

• Consumer Protection Act 1986
• Education
• Service and Consumer

INTRODUCTION:

CONSUMER PROTECTION ACT 1986

The Consumer Protection Act 1986 was passed by the parliament of India in order to protect the rights and interest of consumers. It was enacted in a manner to provide a simpler and quicker redressal to consumer grievances. It also seeks to protect the rights of the consumers against unfair trade practices, which by all means may be practiced by manufacturers and traders. Under the ambit of this act, all services and goods in the public and private sector, unless exempted by the Union Government, are covered. The main objectives of the Consumer Protection Act 1986 are:

• Protecting the consumers against the marketing of goods which are hazardous to life and property.
• Information about the quality, quantity, potency, purity, standard and price of the goods in order to protect the consumers against unfair trade practices.
• Access to an authority of goods at competitive prices, wherever possible.
• Assurance that consumer interests would be duly heard and receive consideration at appropriate forums.
• Redressal against unfair trade practices and unscrupulous exploitation of the consumers.
• Right to consumer education

^[1]

EDUCATION AS A BASIC HUMAN RIGHT:^[2]

^[3]

Education is a fundamental right and essential for the exercise of all other rights. Without adequate education an individual would be completely unaware of what his rights or duties are thus making him susceptible to frauds. It is the basic requirement for the development of a society in particular, country in large. It promotes individual freedom and empowerment and yields important development benefits. In India the right to education flows directly from the right to life. The right to life and dignity of an individual cannot be assured unless it is accompanied by the right to education. In J.P. Unnikrishnan v State of Andhra Pradesh the five-judge bench headed, “The right to education further means that a citizen has the right to call upon the State to provide educational facilities to him within the limits of its economic capacity and development.” The objectives of the Right to Education are:

• It is legally granted to all without any discrimination on caste, creed, race, sex, place of birth and religion.
• States have the obligation to protect, respect and fulfil the specifications of this right.
• States would be held for violations or deprivation of this right.

DOES EDUCATION FALL UNDER THE AMBIT OF ‘SERVICES’?

In this context we have to understand the essentials of the term ‘service’. The term ‘service’ is defined under section 2(1)(o) of the Consumer Protection Act 1986 as:

“Service of any description, which is made available to potential users, including the provision 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 service of free of charge or under a contract of free service.”

The term ‘consumer’ is defined under section 2(1)(d) of the Consumer Protection Act 1986 as:

“Any person who buys any goods for consideration or hires/avails any services for consideration.”

Considering these two definitions from a specific point we have to assess that the definition of a ‘consumer’ under section 2(1)(d) of the Consumer Protection Act 1986 also includes the regular ongoings of a regular university/college/school student? We pay fees to the university/college/school for availing their ‘services’ that is education so we can indeed be considered as ‘consumers’. However, education is a right which has been guaranteed by the Constitution of India as a prerequisite for the fundamental right of life, it cannot be considered as a commodity. Educational institutes cannot be said to be providing ‘services’ in matters of admission of fees, admission etc. This was held by the Supreme Court of India in the case of Maharshi Dayanand University vs Surjeet Kaur.

On the other hand, in Bhupesh Khurana and others v Vishwa Budha Parishad it was held by the court that imparting education by educational institutes fall within the ambit of services as defined under section 2(1)(o) of the Consumer Protection Act 1986. They stated that if this was not a service then there would be no consideration for fees payment.

This made the situation extremely complex. So this falls under the ambit of the Supreme Court to analyze the various activities of the universities/colleges/schools and check whether it fulfils the criteria of what constitutes ‘service’ under the Consumer Protection Act 1986.

RESEARCH QUESTION:

Does education fall under the ambit of ‘services’ as defined under section 2(1)(o) of the Consumer Protection Act 1986?

RESEARCH METHODOLOGY:

Since the research question is an extremely subjective topic to be reviewed upon, I have opted for a mixed analysis of the data which includes both qualitative as well as quantitative. The qualitative data includes all the information which has been analyzed as well as observed properly by reviewing them critically. The quantitative analysis includes all the cases which have been referred to so as to help with the progression of my research in a constructed manner.

REVIEW OF LITERATURE:

There are a number of legal cases which revolve around the same question: whether educational institutes provide education as a type of service and can the students be considered as consumers who pay the fees for this ‘service’? This question remains unanswered. In Buddhist Dental College and Hospital vs Bhupesh Khurana, it was held by two judges of the Supreme Court of India that it was a case of complete misrepresentation which was an ‘unfair trade practices’, as the appellant was neither affiliated nor recognised for imparting education on a legal ground which fell under the purview of Consumer Protection Act 1986 in 13.02.2009. However, a two judge bench in Bihar School Examination Board vs Suresh Prasad Sinha held on 04.09.2009 that the appellant was not rendering any kind of ‘service’ and a complaint under the Consumer Protection Act 1986 would be held completely invalid. The pending case of Manu Solanki and others vs Vinayaka Mission u^[4]university cites the perfect example as to whether educational institutes can be sued under Consumer Protection Act 1986.  A ^[5]a boy who drowned in the swimming pool of his school later died. The father filed a

consumer complaint in the State Consumer Disputes Redressal Commission alleging negligence on the part of the educational institute. Although the State commission ^[6]dismissed the complaint as not being maintainable, on appeal to the National Consumer Disputes Redressal Commission took note of its larger bench and the Supreme Court

India held that Educational Institutes do not fall under the ambit of the Consumer Protection Act 1986. It also states that education which also includes co-curricular activities does not constitute ‘services’ within the meaning of Section 2 (1)(o) under the Consumer Protection Act 1986. The apex court heard an appeal filed by a lucknow resident which challenged the order of National Consumer Disputes Redressal Committee which stated that educational institutes does not fall under the ambit of the Consumer Protection Act 1986 and education which also includes co-curricular activities does not constitute as ‘services’ as defined under Section 2 (1)(o) of the Consumer Protection Act 1986. The university has relied upon apex court judgements in the Maharshi Dayanand University Case and in the PT Koshy cases wherein the verdicts have held that education is not a commodity and that educational institutes are not providing education as a ‘service’. Hence in matters of fees and admission, there cannot be a kind of service and therefore, there cannot be a deficiency of service to be adjudicated upon in consumer forums or commissions. The students in Vinayaka Mission University have, however, cited other judgements where it has been held that educational institutes fall within the purview of the Consumer Protection Act 1986.   In 2019 the Supreme Court of India has granted a special leave petition regarding the same which raises the issue that whether education falls under the ambit of services Under Consumer Protection Act 1986. The bench headed by Justice D y Chandrachud and B V Nagarathna stated that this issue would be soon addressed by the Supreme Court of India.

METHOD:

My research was mainly centered around using the secondary data, reports, case studies and their analysis. Because of the Covid 19 situation, I was unable to conduct surveys and interviews. This is why most of my research was based upon my understanding and analysis of the secondary data available in this topic.

SUGGESTIONS:

We have to understand several critical points in order to come to a conclusion on whether educational institutes fall within the purview of the Consumer Protection Act 1986. For example, a student pays a high amount of fees to get admission to a reputed institute for proper education as well as grooming. After accepting the requisite amount of money, it should be the moral duty of the institute to properly take care of the student in terms of education as well as co-curricular activities. If the institute fails to meet the requirements of the students then it should be held liable for not performing its duties in a non-negligent manner. However, it should be taken note that the relationship between a student and an institute is not ordinarily between a buyer and a seller. There should be certain standard limits which would specify as to what constitutes the default of the activities of the institute hereby causing them to be sued under the Consumer Protection Act 1986.

CONCLUSION:

In my opinion, the teacher-student relationship should not be only deciding factor to decide whether the various facilities provided by the educational institutes should fall under the term ‘service’ as per as Section 2(1)(o) of the Consumer Protection Act 1986 because the institute-student relationship is totally subjective nature which will vary with certain cases. In a strict sense, although the student-institute relationship is not equivalent to consumer and service provider but complaints which are filed by the students on the same ground and if they fulfil those obligations then the institutes should certainly be held liable under the Consumer Protection Act 1986. The student is a direct beneficiary or in other words, consumer of the service rendered by university is supported by the fact that provision for student’s engagement in the academic activity of university including evaluation of teacher is available in Central University Act, 2009 which implies that student is nothing but a direct consumer of education service.

Debjit Roy

St. Xavier’s University

^[7]

---

[1] Legalserviceindia.com. 2021. Education within the ambit of services. [online] Available at: <https://www.legalserviceindia.com/legal/article-329-education-within-ambit-of-services.html> [Accessed 9 November 2021].

[2] Ncdrc.nic.in. 2021. (After including the amendments made vide the Consumer Protection (Amendment) Act, 2002 [62 of 2002] which was passed by Rajya. [online]<http://ncdrc.nic.in/bare_acts/Consumer%20Protection%20Act-1986.html>

[3] Can You Sue An Educational Institution Under Consumer Protection Act ?.  <https://blog.ipleaders.in/can-sue-educational-institution-consumer-protection-act/>.

[4] India, E., 2021. [online] E-Justice India. Available at: <https://www.ejusticeindia.com/education-whether-a-service-under-the-consumer-protection-act-1986/> [Accessed 8 November 2021].

[5] Indiainfoline.com. 2021. Know the basics of the Consumer Protection Act. [online] Available at: <https://www.indiainfoline.com/article/news-sector-others/know-the-basics-of-consumer-protection-act-113111501015_1.html> [Accessed 8 November 2021].

[6] Sharma, D. and Sharma, D., 2021. Consumer Complaints Against Educational Institutions | SCC Blog. [online] SCC Blog. Available at: <https://www.scconline.com/blog/post/2021/01/07/consumer-complaints-against-educational-institutions/> [Accessed 10 November 2021].

[7]  Tribuneindia News Service. 2021. SC to decide if education comes under Consumer Protection Act. [online] Available at: <https://www.tribuneindia.com/news/nation/sc-to-decide-if-education-comes-under-consumer-protection-act-333975>