Academy of Edn. & Anr Vs. State of Karnataka & Ors  Insc 378 (14 August 2003)
SLP(C) Nos. 11286, 11391, 11189- 11195/2003, W.P.(C) Nos. 355/1993, 174/2003,
T.P.(C) Nos. 286-288/2003, SLP(C) Nos. 3465- 3466, 3942-3943, 4002-4003,
9253-9254, 10561/2003, W.P.(C)No. 261, 275, 280 & 289/2003 S.B. SINHA, J :
of education is a State function. The State, however, having regard to its
financial and other constraints is not always in a position to perform its
duties. The function of imparting education has been, to a large extent, taken
over by the citizens themselves.
do it as pure charity; some do it for protection of their minority rights
whether based on religion or language; and some do it by way of their
"occupation". Some such institutions are aided by the State and some
managed educational institutions imparting professional education in the fields
of medicine, dentistry and engineering have spurted in the last few decades.
The right of the minorities to establish an institution of their own choice in
terms of clause (1) of Article 30 of the Constitution of India is recognized;
so is the right of a citizen who intends to establish an institution under
Article 19(1)(g) thereof. However, the fundamental right of a citizen to
establish an educational institution and in particular a professional
institution is not absolute. These rights are subject to regulations and laws
imposing reasonable restrictions. Such reasonable restrictions in public
interest can be imposed under clause (6) of Article 19 and regulations under
Article 30 of the Constitution of India. The right to establish an educational
institution, although guaranteed under the Constitution, recognition or affiliation
or affiliation of professional institutions must be in terms of the statute.
66 of List I and Entry 25 of List III of the Seventh Schedule of the
Constitution of India provide for legislative field in this behalf. Various States
have enacted laws for regulating admission and prohibiting charging of
capitation fee. The said legislations also provide for employment of teachers,
their conditions of service, discipline in institution and several other
matters. Such regulatory measures have been the subject matter of various
decisions of this Court.
Court in Unni Krishnan J.P.and Others vs. State of Andhra Pradesh and Others [(1993) 1 SCC 645] laid
down a Scheme. In terms of the said Scheme the self-financed institutions were
entitled to admit 50% of students of their choice, whereas rest of the seats
were to be filled in by the State. For admission of students, a common entrance
test was to be held. Provisions for free seats and payment seats were made
therein. The State and various statutory authorities including the Medical
Council of India, University Grants Commission and All India Council for
Technical Education made and/or amended regulations so as to bring them at par
with the said Scheme.
Islamic Academy of Education filed a writ petition in the year 1993 questioning
the validity thereof. The said writ petition along with connected matters were
placed before a Bench of five Judges, which was prima facie of the view that
Article 30 of the Constitution of India did not clothe minority educational
institutions with the power to adopt its own method of selecting students.
and Others [(2002) 8 SCC 481] noticed the same stating :
hearing of these cases has had a chequered history. Writ Petition No. 350 of
1993 filed by the Islamic Academy of Education and connected petitions were
placed before a Bench of 5 Judges. As the Bench was prima facie of the opinion
that Article 30 did not clothe a minority educational institution with the
power to adopt its own method of selection and the correctness of the decision
of this Court in St. Stephen's College v. University of Delhi [(1992) 1 SCC
558] was doubted, it was directed that the questions that arose should be
authoritatively answered by a larger Bench.
cases were then placed before a Bench of 7 Judges. The questions framed were
recast and on 6th February, 1997, the Court directed that the matter be placed
a Bench of at least 11 Judges, as it was felt that in view of the Forty-Second
Amendment to the Constitution, whereby "education" had been included
in Entry 25 of List III of the Seventh Schedule, the question of who would be
regarded as a "minority" was required to be considered because the
earlier case laws related to the pre-amendment era, when education was only in
the State List. When the cases came up for hearing before an eleven Judge
Bench, during the course of hearing on 19th March, 1997, the following order
was passed:- "Since a doubt has arisen during the course of our arguments
as to whether this Bench would feel itself bound by the ratio propounded in --
In Re Kerala Education Bill, 1957 (1959 SCR 955) and the Ahmedabad St. Xavier's
College Society v. State of Gujarat, 1975(1) SCR 173, it is clarified that this
sized Bench would not feel itself inhibited by the views expressed in those
cases since the present endeavour is to discern the true scope and
interpretation of Article 30(1) of the Constitution, which being the dominant
question would require examination in its pristine purity. The factum is
recorded." The eleven Judge Bench answered various questions raised
petitioners/applicants before us are private unaided institutions. Most of them
have been established by a Society, Trust or persons belonging to the minority
community based on religion or language.
reason of the impugned legislations/ Government orders, the State Governments,
inter alia, while seeking to lay down the government quota in relation to such
unaided institutions, directed that while filling up the same, the
self-financed institutions must follow the merit list prepared by the State on
the basis of External Common Entrance Test (CET). The State Governments also
fixed/regulated fees to be charged from the students by such institutions.
or otherwise of the said rules/regulations/ Governmental Orders came up for
consideration before several High Courts. Different High Courts in their Orders
while granting interim reliefs, construed the judgment of this Court in T.M.A. Pai
Foundation (supra) differently. The perceptions of the States as also the High
Courts in reading the judgment are widely varied. In the aforementioned
situation, several applications have been filed in the matters which were
disposed of by the 11-Judge Bench of this Court. Some institutions as also the
State of Kerala had also filed Special Leave
Petitions against the interim orders passed by the High Courts. Some writ
petitions under Article 32 of the Constitution of India have also been filed.
Keeping in view the importance of the question, this Court issued notices to
all the State Governments.
Special Leave Petitions and the Writ Petitions several other questions have
also been raised but as at present advised this Bench intends to confine itself
to the interpretation of judgment of this Court in T.M.A. Pai Foundation
(supra) leaving other questions open for consideration by the appropriate
these matters this Court is not at all concerned with the rights of the aided
minority and non-minority institutions and restrictions imposed by the States
upon them but we are concerned only with the rights and obligations of private
unaided institutions run by the minorities and non-minorities.
urged that while interpreting the judgment, this Court should bear in mind the
salient aspects of the findings in T.M.A. Pai (supra) that is to say :
ON THE FUNDAMENTAL RIGHTS OF EDUCATIONAL INSTITUTIONS:
Citizens have a fundamental right to establish and administer educational
institutions under Article 19(1)(g), 21, 26 and 30 of the Constitution (Paras
25 & 26) and, thus, the said rights cannot be taken away/ restricted.
Such a fundamental right extends to education at all levels including
professional education. (Para 161)
The right to establish and administer educational institutions comprises of the
up a reasonable fee structure
a governing body
staff and take disciplinary action (Para
Although such rights are subject to reasonable restrictions, but the same must
be for the betterment of the institution and as such the right under Article
19(1)(g) and Article 30 cannot be undermined. (Paras 135-138)
Restrictions can be imposed only at the time of grant of recognition or
affiliation of the institutions and not thereafter.
The right of the citizens vis-à-vis the minority communities must be judged
keeping in view the distinction between
and aided institutions
and non-minority institutions (Paras 46-73);
ON THE DEGREE OF CONTROL
contended that although some amount of regulation/ control is permissible but
the validity thereof is required to be considered:
the light of the decision of this Court that the Scheme framed in Unnikrishnan
has been abolished and consequent directions issued on the basis thereof by the
UGC, AICTE, MCI, Central and State Governments etc. have been held to be
invalid. (Para 45)
While exercising the power of control, it is impermissible to nationalize
education particularly with regard to the right of minorities to admit members
of their own community as also fixing the fee. (Para 38) Minority institutions are not to subsidize the State nor any
principle of cross-subsidy can be deciphered therefrom.
In the case of unaided institutions, maximum autonomy has to be conceded as
contradistinguished from the power of the State to exercise more control over
unaided institutions but even in relation thereto, aided institutions should
not be treated to be wholly owned or controlled by the State or their
Departments. (Paras 55, 61, 62 & 72)
Such a right of control over the aided institutions inheres for the purpose of
oversight and restraints so as to
proper utilization of funds (Para 143)
the Government to have some seats to the extent of its reservation policy (Paras
Although the aided institutions are subject to clause (2) of Article 29 and
clause (3) of Article 28 of the Constitution, but the unaided minority
institutions being not so subject would not be bound by the restraints
emanating therefrom so long they exercise their right to admit and select
students in a transparent and non-arbitrary manner;
ON ADMISSION OF STUDENTS BY UNAIDED INSTITUTIONS
Unaided institutions have an unbridled right on admission of students,
comprising of devising a test for selecting students of their choice (Para 36, 40-41, 50). Such a right emanates from the
principle that every private and public owner of an institution has the power
to admit qualified students of their own choice (Para 42-44).
As such a right also emanates with a view to maintain the atmosphere and
traditions of the private educational institutions, the general principles for
unaided institutions would also apply to unaided professional institutions. The
right of option either to select their candidates from the Government CET test
or its own test is absolute and the ultimate decision in this behalf rests with
the institutions whereas aided institutions can be compelled to follow the CET
test devised by the Government or the University.
Whereas such a test and devising a system on the part of the unaided
institutions cannot be based on fancy and whims but once "some
identifiable or reasonable methodology" usually on merit is adopted, the
right to select qualified students on a fair and discernable basis cannot be
interfered with (Para 65).
ON THE NATURE AND EXTENT OF THE GOVERNMENT QUOTA FOR UNAIDED INSTITUTIONS
is contended that the Government cannot have a quota in this regard as the
institutions are unaided. Having regard to the fact that if such government
quota is allowed, the same would destroy not only the concept of unaided
institutions but right to exercise maximum autonomy especially in the matter of
selection of students and fees would be impaired.
Such a right must be construed having regard to the extent of control over the
Admission to a small percentage for weaker sections which the unaided
institutions are required to follow by way of implication rules out enforcement
of any reservation policy of the State as the same would run counter to the
decision of this Court in The Gujarat and Another [(1974) 1 SCC 717].
In any event, the direction to determine a small percentage of persons drawn
from the weaker sections of the society should be left with the management,
which would include the weaker sections of the minority community for which
such institution has been established.
is for an unaided institution to volunteer to provide scholarship or freeship
to the students of weaker sections so long they are meritorious students (Para 37, 53, 61 & 68)
Since weaker sections form a special category, they cannot be selected either on
the basis of:
policy of the State
affiliation or residence within the State
For the said purpose also, the social and educational backwardness of the area
or the regions entitling such inclusion on the touchstone of compelling
necessities of the State will have to be taken into consideration.
In any event, reservation for weaker sections cannot be greater than 50% of the
total in any batch after taking into account the reservation for SC, ST and
The unaided institutions cannot be subject to onerous financial impositions nor
can they be asked to perform the functions of the State. (Para 61)
any event, the quota policy cannot be imposed on unaided institutions to the
extent of laying down standards of a reasonable nature that do not cut down its
operational autonomy and financial independence. (Paras 36, 40, 43, 53, 59,
FEE FIXATION FOR UNAIDED INSTITUTIONS
unaided institutions are to be given maximum autonomy in the matter of fixation
of fee, there cannot be :
rigid fee structure (para 54)
Such fees are to be fixed by the unaided institutions (Para 56, 57).
The only impediment in this behalf is that no capitation fee can be charged nor
the institutions can take recourse to profiteering since education is
charitable in nature.
a reasonable revenue surplus for the purpose of development of education and
expansion of education would be permissible (Para 57). While restricting charging
the capitation fee and profiteering, this Court had merely directed that such
institutions make no undue, excessive or illegal profits and thereby a
reasonable profit is permitted.
Only because fee is to be charged on a reasonable development profit basis, the
same would not result in decline in standard or amount to capitation. (Para
Students of weaker sections when admitted may be granted freeships and
scholarships (Para 53).
For the purpose of finding out as to who would be the students belonging to the
weaker sections of the community, local needs and other needs must be taken
judgment of this Court in T.M.A. Pai Foundation (supra) is to be construed
having regard to the following principles:
Its ratio must be found in the answers ultimately given.
judgment has to be read as a whole and in such a manner so that all parts of a
judgment dealing with a particular point are provided with a meaning. The
regulations imposing restrictions must be read in such a fashion so that
maximum autonomy of the unaided institutions are preserved and respected.
MADE ON BEHALF OF STATES/CENTRAL GOVERNMENT/STATUTORY AUTHORITIES
The right of citizens including the minority communities whether based on any
religion or language contained in Article 19(1)(g) and Article 30(1) is not
absolute but is subject to reasonable restrictions.
Regulations restricting the right of minority to admission of students are
necessary for maintenance of proper academic standards, atmosphere and
infrastructure (including qualified staff) and for prevention of
mal-administration (Para 54).
Since education in a sense is regarded as charitable, unaided institutions
cannot charge a hefty fee which would not be required for the purpose of
fulfilling the object for which the institutions are established nor by reason
thereof they can take recourse to profiteering (Para 57.)
As merit is usually determined by either the marks of the students obtained at
the qualifying examination or school leaving certificate stage followed by the
interview or by a common entrance test conducted by the institution, the State
while framing regulation has the requisite jurisdiction to issue necessary
directions in this behalf so that merit is not sacrificed (Para 58-59).
The plea of the minority institutions to the effect that their right to admit
or reject students is absolute would not be in consonance with the direction
issued in para 68 which provides for
system to provide merit based selection while granting sufficient discretion to
certain percentage of seats have to be reserved for the management, the rest
can be filled up on the basis of counseling by the State agencies which would
take care of poorer and backward sections of the society.
prescription of the percentage for the said purpose must be left with the State
Professional institutions must apply a more rigorous test, which would be
subject to greater regulation by the State or by the University. (Answer to
Question No. 4).
As the State while granting essentiality certificate is to consider the local
needs and further guarantee smooth functioning of such institutions failing
which the State has to adjust the students of the institutions to their own
institutions, it has a great stake in the matter. Choice and selection of
students in professional courses are directly linked with maintaining the
standards of medical education.
If a free hand is given to all the private medical, dental, engineering and
other professional colleges to hold their own test, having regard to the time
schedule framed by this Court for holding examinations in the 15% All India
quota as also the All India test held by AIIMS, CBSE, JIPMER, AFMC etc. the
students would be deprived from appearing at the examinations if tests are held
throughout the country and they will have to incur huge expenditure for
purchasing application forms which are priced at Rs. 500 to Rs. 1000/- as also
by way of travelling, boarding and lodging so as to enable them to appear at
various examinations. More than one examination may be held on the same day or
in such near proximity that traveling from one place to another would become
virtually impossible. The methodology, thus, must be adopted so as to minimize
the inconvenience caused to a majority of the students so that they can appear
at many examinations by incurring a reasonable expenditure.
It is a common knowledge that although not termed as capitation fee a large
number of unaided institutions are selling their seats, which must not be
allowed to continue, and must be curbed with heavy hands.
pursuit of its objective of State Policy having regard to Articles 38, 41 &
46 which are in terms of Article 37 thereof, which are fundamental in
governance of the country it is necessary to provide for a common examination
so that the rights of the inter se minorities and inter se weaker sections can
be taken care of in terms of para 68 of the judgment.
The directions issued by this Court to unaided professional institutions
contained in paras 67 and 68 only are to be given effect to although the Bench
referred to professional colleges also in paras 58 and 59 of the judgment.
right to establish an institution is provided for in Article 19(1)(g) of the
Constitution of India. Such a right, however, is subject to reasonable
restrictions, which may be brought about in terms of Clause (6) thereof.
whether based on religion or language, however, have a fundamental right to
establish and administer educational institutions of their own choice. The
right under clause (1) of Article 30 is not absolute; and subject to reasonable
regulations while inter alia may be framed having regard to the public interest
and national interest of the country. Regulations can also be framed to prevent
maladministration as also for laying down the standard of education, teaching,
maintenance of discipline, public order, health, morality, etc.
Court in Unni Krishnan (supra) while framing the scheme directed :
that a professional college should be established and/or administered only by a
Society registered under the Societies Registration Act, 1860, or the
corresponding Act of a State, or by a Public Trust registered under the Trusts
Act, or under the Wakfs Act, and that no individual, firm, company or other
body of individuals would be permitted to establish and/or administer a
that 50% of the seats in every professional college should be filled by the
nominees of the Government or University, selected on the basis of merit
determined by a common entrance examination, which will be referred to as
"free seats"; the remaining 50% seats ("payment seats")
should be filled by those candidates who pay the fee prescribed therefor, and
the allotment of students against payment seats should be done on the basis of
inter se merit determined on the same basis as in the case of free seats.
there should be no quota reserved for the management or for any family, caste
or community, which may have established such a college.
it should be open to the professional college to provide for reservation of
seats for constitutionally permissible classes with the approval of the
the fee chargeable in each professional college should be subject to such a
ceiling as may be prescribed by the appropriate authority or by a competent
every State government should constitute a committee to fix the ceiling on the
fees chargeable by a professional college or class of professional colleges, as
the case may be. This committee should, after hearing the professional
colleges, fix the fee once every three years or at such longer intervals, as it
may think appropriate.
it would be appropriate for the University Grants Commission to frame
regulations under its Act regulating the fees that the affiliated colleges
operating on a no grant-in-aid basis were entitled to charge. The AICTE, the
Indian Medical Council and the Central Government were also given similar
advice. The manner in which the seats to be filled on the basis of the common
entrance test was also indicated.
T.M.A. Pai Foundation (supra) the Scheme framed by this Court restricting the
right of the citizen to establish private unaided institutions including
minority institutions and manage the same was held to be unconstitutional stating
The Scheme enforced by the State Governments in relation to privately managed
institutions would not be a reasonable restriction within the meaning of
Article 19(6) of the Constitution of India as it resulted into revenue
shortfalls making it difficult for the educational institutions;
provision made for free seats and payment seats amounted to subsidising
education of one segment of society at the cost of other which was unreasonable
having regard to the fact that higher education has been held not to be a
orders and directions issued by the State pursuant to or in furtherance of the
directions in Unnikrishnan are, thus, also unconstitutional.
right of a minority educational institution to adopt its own method of
selection is subject to the restrictions contained in clause (2) of Article 29
of the Constitution of India, if the institution is an aided one. It was held
that allowing minority educational institutions to select its own method of
selection for admission of students to the extent of 50% of the seats would not
impinge upon the right under Article 30 of the Constitution of India. It was
further held that regulations can be imposed by the State for intake of
minority categories with regard to need of the minority in the area which the
institution intends to serve.
question, however, arose therein as to whether the State could impose
regulatory measures on the institutions run by the minority community which
provides for admission by conducting interviews but not solely on the marks
obtained in the qualifying examination? In that case, the State had imposed
restrictions on the college management compelling it to make admission
exclusively on the basis of marks obtained in the qualifying examination. But
the management, in addition to the marks obtained by the students, also
conducted interviews for making admission to the college. This Court observed
that the denial of power to St. Stephen's College to conduct interviews to
select candidates for admission would be violative of the rights of the minority
community guaranteed under Article 30(1) of the Constitution. It was held that,
any regulatory measure imposed by the State on the minority institutions should
be beneficial to the institution or for the betterment of those who join such
T.M.A. Pai Foundation (supra) while upholding the judgment in St. Stephen
(supra), that part of the direction whereby the right of the minority
institutions were confined to 50% of the seats was held to be bad.
the above decisions of this Court, it is evident that though the right
engrafted under Article 30(1) of the Constitution does not lay down any
limitations or restrictions upon the right of a minority to administer its
educational institutions, yet the right cannot be used absolutely and
POSED IN T.M.A. PAI FOUNDATION:
T.M.A. Pai Foundation (supra), the Bench framed the following questions:
What is the meaning and content of the expression "minorities" in
Article 30 of the Constitution of India?
What is meant by the expression "religion" in Article 30(1)? Can the
followers of a sect or denomination of a particular religion claim protection
under Article 30(1) on the basis that they constitute a minority in the State,
even though the followers of that religion are in majority in that State?
What are the indicia for treating an educational institution as a minority
education institution? Would an institution be regarded as a minority
educational institution because it was established by a person(s) belonging to
a religious or linguistic minority or its being administered by a person(s)
belonging to a religious or linguistic minority?
what extent can professional education be treated as a matter coming under
minorities' rights under Article 30?
Whether the admission of students to minority educational institution, whether
aided or unaided, can be regulated by the State Government or by the university
to which the institution is affiliated?
Whether the minorities' rights to establish and administer educational
institutions of their choice will include the procedure and method of admission
and selection of students?
Whether the minority institutions' right of admission of students and to lay
down procedure and method of admission, if any, would be affected in any way by
the receipt of State aid?
Whether the statutory provisions which regulate the facets of administration
like control over educational agencies, control over governing bodies,
conditions of affiliation including recognition/ withdrawal thereof, and
appointment of staff, employees, teachers and principals including their
service conditions and regulation of fees, etc. would interfere with the right
of administration of minorities?
Where can a minority institution be operationally located? Where a religious or
linguistic minority in State 'A' establishes an educational institution in the
said State, can such educational institution grant preferential admission/
reservations and other benefits to members of the religious/linguistic group
from other States where they are non-minorities? (b) Whether it would be
correct to say that only the members of that minority residing in State 'A'
will be treated as the members of the minority vis-à-vis such institution?
Whether the member of a linguistic non-minority in one State can establish a
trust/society in another State and claim minority status in that State? 8.
Whether the ratio laid down by this Court in St. Stephen's case (St. Stephen's
College v. University of Delhi) is correct? If no, what order?
Whether the decision of this Court in Unni Krishnan, J.P. v. State of A. P.
(except where it holds that primary education is a fundamental right) and the
scheme framed thereunder require reconsideration/modification and if yes, what?
Whether the non-minorities have the right to establish and administer
educational institution under Articles 21 and 29(1) read with Articles 14 and
15(1), in the same manner and to the same extent as minority institutions? and
What is the meaning of the expressions "education" and
"educational institutions" in various provisions of the Constitution?
Is the right to establish and administer educational institutions guaranteed
under the Constitution? The Bench did not answer 4 out of 11 questions. The Hon'ble
Chief Justice, B.N. Kirpal delivering the majority judgment considered the
questions answered by the Bench under the following headings:
there a fundamental right to set up educational institutions and if so, under which
Does the judgment in Unni Krishnan case require reconsideration?
case of private unaided institutions can there be government regulations and if
so to what extent?
determining the existence of a religious or linguistic minority, in relation to
Article 30, what is to be the unit, the State or country as a whole? and
what extent can the rights of aided minority institutions to administer be
not concerned with the subject under heading 1. The core issues in this matter
revolve around headings 2, 3 and 5 aforementioned.
are, thus, concerned in this case with Question No. 3(b), 4, 5(a), 5(b), 5(c)
answers to the relevant questions are in the following terms:
Article 30(1) gives religious and linguistic minorities the right to establish
and administer educational institutions of their choice. The use of the words
"of their choice" indicates that even professional educational
institutions would be covered by Article 30.
Admission of students to unaided minority educational institutions, viz.,
schools and undergraduate colleges where the scope for merit-based selection is
practically nil, cannot be regulated by the State or University concerned,
except for providing the qualifications and minimum conditions of eligibility
in the interest of academic standards.
right to admit students being an essential facet of the right to administer
educational institutions of their choice, as contemplated under Article 30 of
the Constitution, the state government or the university may not be entitled to
interfere with that right, so long as the admission to the unaided educational
institutions is on a transparent basis and the merit is adequately taken care
of. The right to administer, not being absolute, there could be regulatory
measures for ensuring educational standards and maintaining excellence thereof,
and it is more so in the matter of admissions to professional institutions.
minority institution does not cease to be so, the moment grant-in-aid is
received by the institution. An aided minority educational institution,
therefore, would be entitled to have the right of admission of students
belonging to the minority group and at the same time, would be required to
admit a reasonable extent of non-minority students, so that the rights under
Article 30(1) are not substantially impaired and further the citizens' rights
under Article 29(2) are not infringed. What would be a reasonable extent, would
vary from the types of institution, the courses of education for which
admission is being sought and other factors like educational needs. The State
Government concerned has to notify the percentage of the non-minority students
to be admitted in the light of the above observations. Observance of inter se
merit amongst the applicants belonging to the minority group could be ensured.
In the case of aided professional institutions, it can also be stipulated that
passing of the common entrance test held by the state agency is necessary to
seek admission. As regards non-minority students who are eligible to seek
admission for the remaining seats, admission should normally be on the basis of
the common entrance test held by the state agency followed by counselling
wherever it exists.
A minority institution may have its own procedure and method of admission as
well as selection of students, but such a procedure must be fair and
transparent, and the selection of students in professional and higher education
colleges should be on the basis of merit. The procedure adopted or selection
made should not be tantamount to mal-administration.
an unaided minority institution ought not to ignore the merit of the students
for admission, while exercising its right to admit students to the colleges
aforesaid, as in that event, the institution will fail to achieve excellence.
While giving aid to professional institutions, it would be permissible for the
authority giving aid to prescribe bye-rules or regulations, the conditions on
the basis of which admission will be granted to different aided colleges by
virtue of merit, coupled with the reservation policy of the state qua non-
minority students. The merit may be determined either through a common entrance
test conducted by the University or the Government concerned followed by counselling,
or on the basis of an entrance test conducted by individual institutions - the
method to be followed is for the university or the government to decide. The
authority may also devise other means to ensure that admission is granted to an
aided professional institution on the basis of merit.
case of such institutions, it will be permissible for the government or the
university to provide that consideration should be shown to the weaker sections
of the society.
So far as the statutory provisions regulating the facets of administration are
concerned, in case of an unaided minority educational institution, the
regulatory measure of control should be minimal and the conditions of
recognition as well as the conditions of affiliation to an university or board
have to be complied with, but in the matter of day-to- day management, like the
appointment of staff, teaching and non-teaching, and administrative control
over them, the management should have the freedom and there should not be any
external controlling agency. However, a rational procedure for the selection of
teaching staff and for taking disciplinary action has to be evolved by the
redressing the grievances of employees of aided and unaided institutions who
are subjected to punishment or termination from service, a mechanism will have
to be evolved, and in our opinion, appropriate tribunals could be constituted,
and till then, such tribunals could be presided over by a Judicial Officer of
the rank of District Judge.
State or other controlling authorities, however, can always prescribe the
minimum qualification, experience and other conditions bearing on the merit of
an individual for being appointed as a teacher or a principal of any
can be framed governing service conditions for teaching and other staff for whom
aid is provided by the State, without interfering with the overall
administrative control of the management over the staff.
be charged by unaided institutions cannot be regulated but no institution
should charge capitation fee.
The scheme framed by this Court in Unni Krishnan case and the direction to
impose the same, except where it holds that primary education is a fundamental
right, is unconstitutional. However, the principle that there should not be
capitation fee or profiteering is correct. Reasonable surplus to meet cost of
expansion and augmentation of facilities does not, however, amount to
conflict has to be resolved keeping the aforementioned findings in view.
Whether unaided professional institutions are entitled to lay down their own
Whether in view of the judgment of this Court in T.M.A. Pai Foundation (supra)
private and unaided professional institutions are entitled to have their own
Whether the State Governments are entitled to lay down the quota of total seats
to be filled up by the management?
FINDINGS OF THIS COURT IN T.M.A. PAI FOUNDATION
right to establish and administer educational institutions was held to be
guaranteed to citizens under Article 19(1)(g) of the Constitution of India and
to the minorities under Article 30.
us (Chief Justice Khare) while agreeing with the majority delivered a separate
opinion relating to aided minority institutions and non-minority institutions
as also interpretation of the right of the minorities under Clause (1) of
Article 30 vis-à-vis clause (2) of Article 29 and held that such right is
limited by the conditions laid down in clause (2) of Article 29 and clause (3)
of Article 28.
J. agreed with the aforementioned view stating:
In regard to the minorities seeking recognition and/or aid it was observed in Kerala
Education Bill, 1957 (AIR 1958 SC 956 :
SCR 995) that the minorities cannot surely ask for aid or recognition for an
educational institution run by them in unhealthy surroundings, without any
competent teachers, possessing any semblance of qualification, and which does
not maintain even a fair standard of teaching or which teaches matters
subversive of the welfare of the scholars. In such matters, "the State can
insist that in order to grant aid the State may prescribe reasonable regulations
to ensure the excellence of the institutions to be aided", (emphasis
supplied) Thus, it is clear that regulations postulated for granting
recognition or aid ought to be with regard to the excellence of education and
efficiency of administration viz. to make certain healthy surroundings for the
institutions, existence of competent teachers possessing requisite
qualifications and maintaining fair standard of teaching. Such regulations are
not restrictions on the right but merely deal with the aspects of proper
administration of an educational institution, to ensure excellence of education
and to avert maladministration in minority educational institutions and will,
therefore, be permissible. This is on the principle that when the Constitution
confers a right, any regulation framed by the State in that behalf should be to
facilitate exercise of that right and not to frustrate it." Pal, J. also
agreed with the said view stating:
the Constitution has also carved out a further exception to Article 29(2) in
the form of Article 30(1) by recognising the rights of special classes in the
form of minorities based on language or religion to establish and administer
educational institutions of their choice. The right of the minorities under
Article 30(1) does not operate as discrimination against other citizens only on
the ground of religion or language. The reason for such classification is not
only religion or language per se but minorities based on religion and language.
Although, it is not necessary to justify a classification made by the
Constitution, this fact of 'minorityship' is the obvious rationale for making a
distinction, the underlying assumption being that minorities by their very
numbers are in a politically disadvantaged situation and require special
protection at least in the field of education.
15(4), 337 and 30 are therefore facets of substantive equality by making
special provision for special classes on special considerations." One of
us (Variava, J.) speaking for himself and Bhan, J. agreed with the majority but
thought it appropriate that a mechanism therefor should be set up observing:
far as the statutory provisions regulating the facets of administration are
concerned, in case of an unaided minority educational institution, the
regulatory measure of control should be minimal and the conditions of
recognition as well as conditions of affiliation to a University or Board have
to be complied with, but in the matter of day-to-day Management, like
appointment of staff, teaching and non-teaching and administrative control over
them, the Management should have the freedom and there should not be any
external controlling agency. However, a rational procedure for selection of
teaching staff and for taking disciplinary action has to be evolved by the
Management itself. For redressing the grievances of such employees who are
subjected to punishment or termination from service, a mechanism will have to
be evolved and in our opinion, appropriate tribunals could be constituted, and
till then, such tribunal could be presided over by a Judicial Officer of the
rank of District Judge. The State or other controlling authorities, however,
can always prescribe the minimum qualifications, salaries, experience and other
conditions bearing on the merit of an individual for being appointed as a
teacher of an educational institution.
can be framed governing service conditions for teaching and other staff for whom
aid is provided by the State without interfering with overall administrative
control of Management over the staff, Government/University representative can
be associated with the selection committee and the guidelines for selection can
be laid down. In regard to un-aided minority educational institutions such
regulations, which will ensure a check over unfair practices and general
welfare, of teachers could be framed.
could be appropriate mechanism to ensure that no capitation fee is charged and
profiteering is not resorted to.
extent of regulations will not be the same for aided and un-aided
institutions." The majority held that there is an apparent conflict
between the provisions of clause (2) of Article 29 and clause (1) of Article
29 guarantees the right to every citizen not to be denied admission into any
educational institution maintained by the State or receiving aid out of State
funds on grounds only of religion, race, caste, language or any of them;
whereas clause (1) of Article 30 confers a fundamental right to set up
educational institutions of their choice.
delicate balance was sought to be struck by stipulating that minority
educational institutions may admit non-minority students to a "reasonable
extent" so that the rights of both minorities and non- minorities are
protected. However, the extent to which such balance is to be struck may be
determined by the State having regard to such factors as 'the type of
institution', 'course of education', 'population and educational needs of
minorities'. It was further laid down that the minority institutions are
required to admit students having regard to inter-se merit amongst the
applicants. Non-minorities students, who qualify the test, would be entitled to
seek admission against the "allotted seats" as per their own
respective cumulative merit.
one of us Variava, J., speaking for himself and Bhan, J. clearly held that
where the minority institutions take aid from the State they do not have any
right to admit students of minority community alone. For arriving at the said
conclusion, the learned Judge referred to the history of the said provision and
the intention of the founding fathers, which was the conferment of a right of
minorities to establish "a secular state wherein people belonging to the
different religions should all have a feeling of equality and non-
learned Judge further referred to the significance of conditional clause, 'at
their own expense' in the draft article VI which reads as follows :
belonging to national minorities in a state whether based on religion or language
have equal rights with other citizens in forming, controlling and administering
at their own expense, charitable, religious and social institutions, schools
and other educational establishments with the free use of their language and
practice of their religion.
legislation providing state-aid for schools shall discriminate against schools
under the management of minorities whether based on religion or language."
The learned Judge further observed that by reason of Article 30(1) no 'special'
or 'additional' right is conferred on the minorities.
'minorities' although is not defined in the Constitution, one of us Khare, CJI,
referred to the Year Book on Human Rights (1950) and Encyclopaedia Britannica
and some other standard works on the theme of protection of minorities.
in para 153 the view regarding merit was expressed, but while answering the
question No. 7 was left open to be answered by the appropriate Benches.
majority opined that the minority status of a group of persons would be
determined on the basis of population of the State or Union Territory concerned
and not on the whole of the country. It was further held that education within
the meaning of the provision of Article 30 would mean and include education
from primary level to the post-graduate level and would include professional
education as well.
Bench, however, overruled the dicta in Unni Krishnan's case (supra) that
education is not a 'business' or 'occupation' within the meaning of Article
19(1)(g) of the Constitution of India, wherein and incorporating the doctrine
of res extra commercium, the Court had observed :
the conclusion that 'occupation' comprehends the establishment of educational
institutions is correct, the proviso in the aforesaid observation to the effect
that this is so provided no recognition is sought from the state or affiliation
from the concerned university is, with the utmost respect, erroneous. The
fundamental right to establish an educational institution cannot be confused
with the right to ask for recognition or affiliation." While declaring
that the Scheme framed in Unni Krishnan's case (supra) and the directions
issued to the Government, UGC and other concerned bodies to give effect to the
same vis-à-vis privately managed educational institutions as unconstitutional,
it upheld two propositions :
education is a fundamental right; and
institution cannot charge any capitation fee or otherwise take recourse to
scheme framed by this Court in Unni Krishnan's case and the direction to impose
the same, except where it holds that primary education is a fundamental right,
is unconstitutional. However, the principle that there should not be capitation
fee or profiteering is correct. Reasonable surplus to meet cost of expansion
and augmentation of facilities does not, however, amount to profiteering."
The Bench agreed with the contention of the private institutions that
affiliation and recognition has to be made available to every institution that
fulfils the conditions for grant thereof observing :
private institutions are right in submitting that it is not open to the Court
to insist that statutory authorities should impose the terms of the scheme as a
condition for grant of affiliation or recognition; this completely destroys the
institutional autonomy and the very objective of the institution." The
Court, however, laid emphasis that in professional education merit should be
view to appreciate the extent to which the Scheme formulated in Unni Krishnan
was not found favour with T.M.A. Pai Foundation (supra), we may set out the
observations of this Court in T.M.A. Pai Foundation (supra) as follows:
Establishment of Educational Institutions All citizens have a right to
establish and administer educational institutions under Articles 19(1)(g) and
26, but this right is subject to provisions of Articles 19(6) and 26-A. (See
Answer to Question Nos. 10 & 11).
Admission to Courses (i) Private Unaided Professional Colleges:
Admission to professional colleges should be based on merit by common entrance
test conducted by the Government agencies (See Paragraph 59)
Certain percentage of seats can be reserved for admission by management out of
those students who have passed common entrance test held by itself or by the
State agency and the rest of the seats may be filled up on the basis of counselling
by the State agency. Prescription by percentage has to be determined by the Government
according to local needs (See Paragraph 68)
When one considers the Constitution Bench's earlier statements that higher
education is not a fundamental right, it seems unreasonable to compel a citizen
to pay for the education of another more so in the unrealistic world of
competitive examinations which assess the merit for the purpose of admission
solely on the basis of marks obtained where urban students always have an edge
over rural students. Those who seek professional education must pay for it. (See
Paragraphs 37 & 70).
Private aided professional institutions:
would be permissible for the authority giving aid to prescribe by Rules or
Regulations the conditions on the basis of which the admissions shall be
granted to different aided colleges by virtue of merit coupled with reservation
policy of the State. The merit may be determined either through the common
entrance test conducted by the University or the Government followed by counselling
or on the basis of entrance test conducted by individual institution, and
method to be followed is for the Government or University to decide.
Private aided minority institutions:
State Government is not entitled to interfere with the right of minority
educational institutions to admit students of their choice so long as the
admission is on a transparent basis and the merit is adequately taken care of.
The right not being absolute, there could be regulatory measures for ensuring
educational standards and maintaining excellency thereof, specially in the case
of admission to professional institutions. (See Page 588, Q. 4).
Unaided minority institutions:
institutions would have the right of admission of students belonging to
minority groups and at the same time would be required to admit reasonable
extent of non-minority students as notified by the State Government. In case of
professional institutions it can also be stipulated that passing of common
entrance test held by the State agency is necessary to seek admission. (Page
588, Qs. 4, 5(a) and 5(b))
Reservation of Seats ..While the State has a right to prescribe qualifications
necessary for admission, private unaided colleges have right to admit students
of their choice subject to objective and rational procedure of selection and
the compliance with the conditions if any requiring admission of certain
percentage of students belonging to weaker sections by granting them free
scholarships or scholarships if not granted by the Government (paragraph 53).
of "free" and "Payment" seats was evolved on the
presumption that the economic capacity of the 50 per cent of admitted students
would be greater than the remaining 50%, whereas the converse has proved to be
the reality. In this scheme, the "Payment" seat student would not
only pay for his own seat, but also finance the cost of a "free seat"
classmate. It seems unreasonable to compel a citizen to pay for the education
of another, more so in the unrealistic world of competitive examinations which assess
the merit for the purpose of admission solely on the basis of marks obtained
where urban students always have an edge over rural students. In practice, it
has been the case of the marginally less merited rural or poor students bearing
the burden of a rich and well exposed and urban students. (See Paragraph 37).
The decision in Unni Krishnan insofar as it framed the Scheme relating to grant
of admission and fixing fee was not correct, and to that extent the said
decision and consequent direction given to UGC, AICTE, Medical Council of
India, Central and State Governments etc., is overruled. (Paragraph 45).
A rational fee structure should be adopted by the management and it would not
be entitled to charge capitation fee and appropriate machinery can be devised
by the State or University to ensure that no capitation fee is charged and that
there is no profiteering, though a reasonable surplus in furtherance of
education is permissible. The conditions of granting recognition or affiliation
can broadly cover academic and educational matters including the welfare of
students and teachers (Paragraph 69, Q.9).
problem presented in these matters should be viewed from the aforementioned
is a fundamental right to set up educational institutions both under Article
19(1)(g) and Article 30 of the Constitution of India. It held that the Scheme
framed by this Court in Unni Krishnan did not impose reasonable restrictions
within the meaning of Clause (6) of Article 19 of the Constitution of India.
The unaided institutions compared to the aided institutions will have more
autonomy to run the institutions. However, in the matter of non-professional
institutions, the autonomy is absolute which is not the case in professional
right to establish and administer an institution comprises of the right:
set up a reasonable fee structure;
constitute a governing body;
appoint staff (teaching and non-teaching); and
take action if there is dereliction of duty on the part of any employees.
regards fee structure, it was held that the fixing of a rigid fee structure,
dictating the formation and composition of a governing body, compulsory
nomination of teachers and staff for appointment or nominating students for
admissions would be unacceptable restrictions.
an educational institution is not a business, in order to examine the degree of
independence that can be given to a recognized educational institution, like
any private entity that does not seek aid or assistance from the Government,
and that exists by virtue of the funds generated by it, including its loans or
borrowings. It is important to note that the essential ingredients of the
management of the private institution include the admission of students and
recruiting staff, and the quantum of fee that is to be charged.
educational institution is established for the purpose of imparting education
of the type made available by the institution.
courses of studies are usually taught by teachers who have to be recruited as
per qualifications that may be prescribed. It is no secret that better working
conditions will attract better teachers.
amenities will ensure that better students seek admission to that institution.
One cannot lose sight of the fact that providing good amenities to the students
in the form of competent teaching faculty and other infrastructure costs money.
It has, therefore, to be left to the institution, if it chooses not to seek any
aid from the government, to determine the scale of fee that it can charge from
the students. One also cannot lose sight of the fact that we live in a
competitive world today, where professional education is in demand. We have
been given to understand that a large number of professional and other
institutions have been started by private parties who do not seek any
governmental aid. In a sense, a prospective student has various options open to
him/her where, therefore, normally economic forces have a role to play.
decision on the fee to be charged must necessarily be left to the private
educational institution that does not seek or is not dependent upon any funds
from the Government.
the object of setting up of an educational institution is charitable in nature,
capitation fee and profiteering cannot be allowed to be indulged in:
the institutions may generate a reasonable revenue surplus for the purpose of
development of education and expansion of the institutions.
For admission in a professional institutions, merit must play an important role
and meritorious candidates should not be treated unfairly or put at a
disadvantage by preferences shown to less meritorious but more influential
in professional education would require that greater emphasis be laid on the
merit of a student seeking admission for which appropriate regulations can be
regards determination of merit, it was stated:
is usually determined, for admission to professional and higher education
colleges, by either the marks that the student obtains at the qualifying
examination or school leaving certificate stage followed by the interview, or
by a common entrance test conducted by the institution, or in the case of
professional colleges, by government agencies." Educational institutions,
however, cannot grant admission on their whims and fancies and must follow some
identifiable or reasonable methodology of admitting the students. Any scheme,
rule or regulation that does not give an institution the right to reject
candidates who might otherwise be qualified according to, say, their
performance in an entrance test, would be an unreasonable restriction under
Article 19(6), though appropriate guidelines/modalities can be prescribed for
holding the entrance test in a fair manner. Even when students are required to
be selected on the basis of merit, the ultimate decision to grant admission to
the students who have otherwise qualified for the grant of admission must be
left with the educational institution concerned. However, when the institution
rejects some students, such rejection must not be whimsical or for extraneous
principles governing private unaided professional colleges were dealt with
separately in paragraphs 67, 68 and 69; the relevant portions whereof read
would be unfair to apply the same rules and regulations regulating admission to
both aided and unaided professional institutions. It must be borne in mind that
unaided professional institutions are entitled to autonomy in their
administration while, at the same time, they do not forgo or discard the
principle of merit. It would, therefore, be permissible for the university or
the government, at the time of granting recognition, to require a private
unaided institution to provide for merit-based selection while, at the same
time, giving the Management sufficient discretion in admitting students. This
can be done through various methods. For instance, a certain percentage of the
seats can be reserved for admission by the Management out of those students who
have passed the common entrance test held by itself or by the State/University
and have applied to the college concerned for admission, while the rest of the
seats may be filled up on the basis of counselling by the state agency. This
will incidentally take care of poorer and backward sections of the society. The
prescription of percentage for this purpose has to be done by the government
according to the local needs and different percentages can be fixed for
minority unaided and non-minority unaided and professional colleges. The same
principles may be applied to other non-professional but unaided educational
institutions viz., graduation and post graduation non-professional colleges or
such professional unaided institutions, the Management will have the right to
select teachers as per the qualifications and eligibility conditions laid down
by the State/University subject to adoption of a rational procedure of
selection. A rational fee structure should be adopted by the Management, which
would not be entitled to charge a capitation fee. Appropriate machinery can be
devised by the state or university to ensure that no capitation fee is charged
and that there is no profiteering, though a reasonable surplus for the
furtherance of education is permissible. Conditions granting recognition or
affiliation can broadly cover academic and educational matters including the
welfare of students and teachers.
OPERATING IN THE FIELD:
in exercise of its power conferred upon it under Entry 66 List I of the Seventh
Schedule of the Constitution of India enacted the Medical Council of India Act,
University Grants Commission Act and All India Council for Technical Education
Act. Regulations have also been framed pursuant to or in furtherance of the
regulation making power contained therein. Section 10(1)(i) of the AICTE Act
reads as under :-
Functions of the Council. –
shall be the duty of the Council to take all such steps as it may think fit for
ensuring co- ordinated and integrated development of technical and management
education and maintenance of standards and for the purposes of performing its
functions under this Act, the Council may—
undertake survey in the various fields of technical education, collect data on
all related matters and make forecast of the needed growth and development in
the development of technical education in the country at all levels;
and disburse out of the Fund of the Council such grants on such terms and
conditions as it may think fit to –
technical institutions" Section 12A of UGC Act is as follows :
Regulation of fees and prohibition of donations in certain cases.-
this section, -
"affiliation", together with its grammatical variations, includes in
relation to a college, recognition of such college by, association of such
college with, and admission of such college to the privileges of, a University;
"college" means any institution, whether known as such or by any
other name which provides for a course of study for obtaining any qualification
from a university and which, in accordance with the rules and regulations of
such University, is recognized as competent to provide for such course of study
and present students undergoing such course of study for the examination for
the award of such qualification;
"prosecution", in relation to a course of study, includes promotion
from one part or stage of the course of study to another part or stage of the
course of study;
"qualification" means a degree or any other qualification awarded by
"regulations" means regulations made under this Act;
"specified course of study" means a course of study in respect of
which regulations of the nature mentioned in sub-section (2) have been made;
"student" includes a person seeking admission as a student;
"university" means a university or institution referred to in
sub-section (1) of section 22.
Without prejudice to the generality of the provisions of section 12 if, having
regard to –
nature of any course of study for obtaining any qualification from any
types of activities in which persons obtaining such qualification are likely to
be engaged on the basis of such qualification;
the minimum standards which a person possessing such qualification should be
able to maintain in his work relating to such activities and the consequent
need for ensuring, so far as may be, that no candidate secures admission to
such course of study by reason of economic power and thereby prevents a more
meritorious candidate from securing admission to such course of study; and
all other relevant factors, the Commission is satisfied that it is necessary so
to do in the public interest, it may, after consultation with the university or
universities concerned, specify by regulations the matters in respect of which
fees may be charged, and the scale of fees in accordance with which fees shall
be charged in respect of those matters on and from such date as may be
specified in the regulations in this behalf, by any college providing for such
course of study from, or in relation to, any student in connection with his
admission to, and prosecution of, such course of study :
that different matters and different scales of fees may be so specified in
relation to different universities or different classes of colleges or
Where regulations of the nature referred to in sub-section (2) have been made
in relation to any course of study, no college providing for such course of
study shall –
or charge fee in respect of any matter other than a matter specified in such
or charge any fees in excess of the scale of fees specified in such
either directly or indirectly, any payment (otherwise than by way of fees) or
any donation or gift (whether in cash or kind), from, or in relation to, any
student in connection with his admission to, and prosecution of, such course of
If, after making, in relation to a college providing for a specified course of
study, an inquiry in the manner provided by regulations, and after giving such
college a reasonable opportunity of being heard, the Commission is satisfied
that such college has contravened the provisions of sub-section (3), the
Commission may, with the previous approval of the Central Government, pass an
order prohibiting such college from presenting any students then undergoing
such course of study therein to any university for the award of the
The Commission shall forward a copy of the order made by it under sub-section
(4) to the university concerned, and on and from the date of receipt by the
University of a copy of such order, the affiliation of such college to such
university shall, in so far as it relates to the course of study specified in
such order, stand terminated and on and from the date of termination of such affiliation
and for a period of three years thereafter affiliation shall not be granted to
such college in relation to such or similar course of study by that or any
the termination of the affiliation of any college under sub-section (5), the
Commission shall take all such steps as it may consider appropriate for
safeguarding the interests of the students concerned.
The provisions of this section and the regulations made for the purposes of
this section shall have effect notwithstanding anything inconsistent therewith
contained in any other law for the time being in force."
regulations have been framed under the aforementioned three Acts regulating
admission of students, percentage of the minority students to be admitted into
non-minority institutions, determination of fee and matters incidental thereto
and ancillary therewith. By reason of the said regulations, the State
Government, however, have been delegated with the power to determine the fee
structure in respect of professional institutions wherefor requisite guidelines
have been issued; pursuant whereto and in furtherance whereof committees have
been constituted for the said purpose.
States of Tamil Nadu, Maharashtra, Karnataka and Andhra Pradesh
enacted statutes prohibiting collection of capitation fee and regulating
admission in professional colleges. In terms of the provisions of the said
Acts, the management of the professional colleges is prohibited from charging
any fee other than fee determined under the said Acts. The right of the
minorities under Article 30 of the Constitution, however, stands protected
thereby. The respective State Governments enforced the said statutes in respect
of self- financing private institutions, minorities or otherwise. They further
issued various Government orders in exercise of their powers under Article 162
of the Constitution of India after the judgment in T.M.A. Pai Foundation. The
University Grants Commission, the A.I.C.T.E. and the Medical Council of India,
issued provisional/ad hoc guidelines covering the same subject purported to be
in terms of the provisions of the principal statutes governing the field in the
light of the judgment of this Court in T.M.A. Pai Foundation. The State
Governments also in terms of the observations made by this Court issued various
orders or adopted resolutions providing for enforcement of their reservation
policy as also determining the fee structure.
of such Government orders came to be challenged, inter alia, by way of writ
petition before the High Courts of Andhra Pradesh, Karnataka and Kerala.
Certain interim orders had been passed therein which are under challenge in
several special leave petitions.
noticed hereinbefore, in T.M.A. Pai Foundation's case (supra) only orders and
directions issued pursuant to Unni Krishnan have been declared
the question with regard to constitutionality or otherwise of the said
statutes, Rules and Regulations had not been examined. In particular the
parliamentary acts and the regulations framed thereunder have not been referred
to. The question as to whether the field with regard to the higher education is
covered by the parliamentary legislations or not was not adverted to. The
extent and scope of the legislative competence of the Parliament and the State
Legislatures within the meaning of Entry 66 of List I and Entry 25 of List III
of the Seventh Schedule of the Constitution also had not been adverted to. In
the aforementioned premise, one of us, Variava, J. stated :
The learned Chief Justice has repeatedly emphasised that capitation fees cannot
be charged and that there must be no profiteering.
clarify that the authorities concerned will always be entitled to prevent by
enactment or by regulations the charging of exorbitant fees or capitation fees.
There are many such enactments already in force. We have not gone into the
validity or otherwise of any such enactment. No arguments regarding the
validity of any such enactment have been submitted before us. Thus those
enactments will not be deemed to have been set aside by this judgment.
course now by virtue of this judgment the fee structure fixed under any
regulation or enactment will have to be reworked so as to enable educational
institutions not only to break even but also to generate some surplus for
future development/expansion and to provide for free seats." Although the
parties have raised their contentions as regards constitutionality of some of
the provisions of the aforementioned statutes, keeping in view the limited
scope for which this Constitution Bench has been constituted, we refrain
ourselves from going thereinto.
exercise has to be undertaken in appropriate cases.
THE RIGHTS UNDER ARTICLE 19(1)(g) AND ARTICLE 30(1) OF THE CONSTITUTION OF INDIA EQUAL ? :
Pai Foundation (supra) for the first time brought into existence the concept of
education as an 'occupation'. In no uncertain terms, it was held that all
citizens of India irrespective of the fact as to
whether they belong to a minority group or not have a right to establish and
run an institution. A right conferred on a citizen of India in terms of Article 19(1)(g) of the
Constitution of India indisputably is subject to reasonable restrictions, which
may be imposed in public interest under clause (6) thereof. The makers of the
Constitution no doubt while enacting Article 30 of the Constitution of India
intended to confer on the minorities the same right as that of the majority.
But, does it mean that for all intent and purport no further or additional
right exists in the minority community is the question.
our attention to paragraphs 54, 65, 138, 139, 224-229 of the judgment, Mr. Venugopal
and Mr. Vaidyanathan, the learned senior counsel for the respondents would
submit that the minority right is equal to that of the majority and not
vice-versa. According to learned counsel, if it is to be held that the minority
exercises a higher right than the majority, the same would be counter
productive to the Indian ethos. Right to admit students of their own choice,
the learned counsel would contend, in a professional college, therefore, is not
other hand, the learned counsel appearing on behalf of the Writ
Petitioners-Applicant would contend that the discussions in T.M.A. Pai
Foundation centered round the question as to whether the right conferred upon
minorities under Article 30 was subject to clause (2) of Article 29 or not. Our
attention was drawn to paragraphs 31 to 45 of the judgment and in particular para
31, 45 and 459 of the judgment.
learned counsel would submit that while considering the question as to whether
the Scheme framed by this Court in Unni Krishnan was reasonable, it was
categorically held that the provisions contained therein to the extent that 50%
seats would be free seats and 50% thereof would be payment seats and all
examinations would be conducted through Common Entrance Test (CET) and the
ceiling on fees was declared unconstitutional as being violative of clause (6)
of Article 19 of the Constitution of India. It was submitted that in the event
if it be held that the said provisions are ultra vires for the purpose of
clause (6) of the Article 19 the same consequences must ensue for construction
of Article 30 of Constitution of India. It was contended that having regard to
the majority decision of this Court, if it is held, having regard to clause (2)
of Article 29 of the Constitution that in the event an aid is granted to a
professional institution, they will be subject to the same restrictions which
any other self-financed scheme institution would face in terms of clause (6) of
Article 19 of the Constitution of India then no purpose can be held to have
been achieved by the Constitution makers in enacting clause (1) of Article 30
of the Constitution of India.
citizen of India whether belonging to a minority
community or not will have the right under Article 19. A person belonging to a
minority community apart from 19(1)(g) has a right to establish, administer
institution of their choice. In T.M.A. Pai Foundation this Court held that
minority institutions can establish and run a professional institution in terms
of clause (1) of Article 30 of the Constitution having regard to the fact that
they have a right to establish an institution of their own choice.
citizen of India with a view to establish an unaided professional institution
exercises his right of occupation. To the said extent admittedly the right of
the minority and non-minority is equal. Article 30, however, seeks further to
protect the minorities so that they may admit students in the institution
established by them.
privilege is not extended to the non-minority community. They also have a right
to establish an institution and admit students of their own choice in terms of
Para 68 of the judgment in T.M.A. Pai but they do not have any right of
admitting students belonging to a particular locality or speaking a particular
language as such institutions are not meant to serve the said purpose. But the
same for all intent and purport having regard to the question involved in the
matter may not be of much consequence as would appear from the discussions made
The private unaided educational institutions impart education, and that cannot
be the reason to take away their choice in matters, inter alia, of selection of
students and fixation of fees. Affiliation and recognition has to be available
to every institution that fulfills the conditions for grant of such affiliation
and recognition. The private institutions are right in submitting that it is
not open to the Court to insist that statutory authorities should impose the
terms of the scheme as a condition for grant of affiliation or recognition;
this completely destroys the institutional autonomy and the very objective of
establishment of the institution.
Scheme framed in Unni Krishnan was held to be unconstitutional by this Court
and only in that context it was observed:
The scheme in Unni Krishnan's case has the effect of nationalizing education in
respect of important features, viz., the right of a private unaided institution
to give admission and to fix the fee. By framing this scheme, which has led to
the State Governments legislating in conformity with the scheme the private
institutions are indistinguishable from the government institutions; curtailing
all the essential features of the right of administration of a private unaided
educational institution can neither be called fair nor reasonable. Even in the
decision in Unni Krishnan's case, it has been observed by Jeevan Reddy, J., at
page 749, para 194, as follows:
hard reality that emerges is that private educational institutions are a
necessity in the present day context. It is not possible to do without them because
the Governments are in no position to meet the demand - particularly in the
sector of medical and technical education which call for substantial outlays.
While education is one of the most important functions of the Indian State it has no monopoly therein. Private educational
institutions - including minority educational institutions - too have a role to
play." However, it was also noticed :
As we look at it, Article 30(1) is a sort of guarantee or assurance to the
linguistic and religious minority institutions of their right to establish and
administer educational institutions of their choice. Secularism and equality
being two of the basic features of the Constitution, Article 30(1) ensures
protection to the linguistic and religious minorities, thereby preserving the
secularism of the country. Furthermore, the principles of equality must
necessarily apply to the enjoyment of such rights. No law can be framed that
will discriminate against such minorities with regard to the establishment and
administration of educational institutions vis- a-vis other educational
institutions. Any law or rule or regulation that would put the educational
institutions run by the minorities at a disadvantage when compared to the
institutions run by the others will have to be struck down. At the same time,
there also cannot be any reverse discrimination. It was observed in St.
Xavier's College case(1975) 1 SCR 173, at page 192, that "the whole object
of conferring the right on minorities under Article 30 is to ensure that there
will be equality between the majority and the minority. If the minorities do
not have such special protection, they will be dented equality." In other
words, the essence of Article 30(1) is to ensure equal treatment between the
majority and the minority institutions. No one type or category of institution
should be disfavoured or, for that matter, receive more favourable treatment
than another. Laws of the land, including rules and regulations, must apply
equally to the majority institutions as well as to the minority institutions.
The minority institutions must be allowed to do what the non-minority
institutions are permitted to do.
Like any other private unaided institutions, similar unaided educational
institutions administered by linguistic or religious minorities are assured
maximum autonomy in relation thereto; e.g., method of recruitment of teachers,
charging of fees and admission of students. They will have to comply with the
conditions of recognition, which cannot be such as to whittle down the right
under Article 30." The findings of this Court in the aforementioned
paragraphs must be given their full effect. Although the width and scope of
Article 19(1)(g) and Article 30 are different, but they seek to fulfill the
same purpose. A minority institution has no additional rights but it enjoys a
constitutional protection to admit students belonging to the minority
communities whether based on religion or language. All regulations in this
behalf must satisfy the requirement of Article 30.
doctrine of equality shall further apply once the institutions have been
notice that this Court in Ahmedabad St. Xavier's College (supra) stated:
order to attain that object, two things were regarded as particularly necessary
and have formed the subject of provisions in these treaties.
first is to ensure that nationals belonging to racial, religious or linguistic
minorities shall be placed in every respect on a footing of perfect equality
with the other nationals of the State. The second is to ensure for the minority
elements suitable means for the preservation of their racial peculiarities,
their traditions and their national characteristics.
two requirements are indeed closely interlocked, for there would be no true equality
between a majority and a minority if the latter were deprived of its own
institutions and were consequently compelled to renounce that which constitutes
the very essence of its being a minority"." The purport and object
for which Article 30(1) was inserted in the Constitution cannot be lost sight
of. Judgments of Khare, J. (as the CJI then was) and Variava, J. are replete
with the debates in the constituent assembly.
argument that the management of the minority institutions cannot be taken over,
whereas that of the non-minority institutions can be, is misplaced and in any
event irrelevant. This Court in no unmistakable terms held that the State
cannot take any step by way of imposing conditions at the time of grant of
recognition which would amount to nationalization of education. This applies to
both minorities and non-minorities.
Constitution prohibits acquisition of property of any citizen of India except in accordance with law. Any
action taken on the part of the State to take over the property of minority
institution must also receive legal sanction through an act of a legislation
and not otherwise.
will not be a correct proposition of law, on the face of Clause 1A of Article
30 of the Constitution to contend that the properties of the minority
institutions cannot be taken over at all.
only right which they have is to get reasonable compensation so as to enable
them to establish another educational institution at some other place. It is
not necessary to raise hypothetical question to drive home a point which is of
not much consequence. As and when laws are made, their constitutionality will
have to be tested on their own merit. Preemptive answers should not be given on
in the event, running of a minority institution is found to be against national
interest or permissible limits of regulations, it can be taken over with a view
to maintain morality, public order, health, national interest. Similar such
considerations would empower the State to close the institution or take over
the management thereof, although the same may be done only in extreme cases.
case of gross mismanagement and violation of the conditions of essentiality
certificate also, the State may be held to have the power to close down the
right of the minority institution to admit their own students, in other words,
is only by way of protection of the minority interest so that they may get the
benefit of the equality clause. Such a protection should not be confused to be
a right. This is evident not only from paras 138 and 139 of the judgment but
also from para 371, (opinion of Ruma Pal, J.) The statement of law contained in
paras 138 and 139 is absolutely clear and unambiguous and no exception can be
taken thereto. The doubt, if any, that the minorities have a higher right in
terms of Article 30(1) of the Constitution of India may be dispelled in
clearest terms inasmuch as the right of the minorities and non-minorities is
equal. Only certain additional protection has been conferred under Article
30(1) of the Constitution of India to bring the minorities on the same platform
as that of non-minorities as regards the right to establish and administer an
educational institution for the purpose of imparting education to the members
of their own community whether based on religion or language.
every Indian can become a minority having regard to the fact that even Hindus
are in minority in Jammu & Kashmir, Punjab and some other States in
North-East of India. Even Hindi speaking people except northern India are in minority in other parts of
question, thus, has to be considered keeping in view the fact that every Indian
may be a minority, either based on religion or language, in one part of the
country or the other. The right of a citizen as a minority in one part of the
country cannot be higher than his right as a member of majority in another part
of the country.
one of us (Variava, J.) speaking for himself and Bhan, J. clearly said :
30 merely protects the right of the minority to establish and administer an
educational institution, i.e. to have the same rights as those enjoyed by majority,
Article 30 gives no right to receive State aid. It is for the institution to
decide whether it wants to receive aid. If it decides to take State aid then
Article 30(2) merely provides that the State will not discriminate against it.
When State, whilst giving aid, asks the minority educational institute to
comply with a constitutional mandate, it can hardly be said that the State is
discriminating against that institute. The State is bound to ensure that all
educational institutes, whether majority or minority, comply with the
constitutional mandate." (Emphasis supplied) The right of the minorities
in the matter of admission of students can also be restricted like the
non-minorities. T.M.A. Pai says so.
professional institutions indisputably are governed by statutes like MCI Act,
AICTE Act and the UGC Act. In terms the provisions of the statutes and
regulations framed thereunder the private professional institutions are
required to maintain certain standards. They cannot be deviated or departed
from. In the context of giving admissions to the meritorious students, it
cannot be said that the students belonging to the minority community shall be
admitted without reference to merit.
courts, it is relevant to place on record, would not encourage establishment of
pseudo minority institutions imparting professional courses. The statutory
rules and regulations, thus, must be equally applied to all the professional
institutions whether aided or unaided whether run by a minority or
non-minority. In the matter of maintenance of standard, these institutions must
be equally treated.
be held that the minority institutions can admit all the students belonging to
their own community whereas the non-minority institutions cannot, the same, in
my opinion, would amount to re- writing the judgment.
arguments which have been advanced in this behalf, if accepted, would clearly
lead to the conclusion that the majority decision in TMA Pai Foundation is
while laying down the law in terms of Articles 15(3), 15(4), 16(1) and 16(4),
the object is to attain equality. Reverse discrimination even in the majority
judgment has been frowned upon.
say that the right of the minorities is higher than the other disadvantaged
group? Possibly not having regard to Part III of the Constitution.
interesting to note that recently in Jennifer Gratz and Supreme Court the
guidelines providing for selection method under which every applicant from an
underrepresented racial or ethnic minority groups was to be automatically
awarded 20 points out of 100 points needed to guarantee admission, was struck
down as being violative of equality protection clause. It was observed:
very nature of a college's permissible practice of awarding value to racial
diversity means that race must be considered in a way that increases some
applicants' chances for admission. Since college admission is not left entirely
to inarticulate intuition, it is hard to see what is inappropriate in assigning
some stated value to a relevant characteristic, whether it be reasoning
ability, writing style, running speed, or minority race. Justice Powell's plus
factors necessarily are assigned some values. The college simply does by a
numbered scale what the law school accomplishes in its "holistic
review," Grutter, post, at 25; the distinction does not imply that
applicants to the undergraduate college are denied individualized consideration
or a fair chance to compete on the basis of all the various merits their
applications may disclose." Justice Ginsburg, however, speaking for
himself and Justice Souter in their minority opinion stated:
jurisprudence ranks race a "suspect" category, "not because
(race) is inevitably an impermissible classification, but because it is one
which usually, to our national shame, has been drawn for the purpose of
maintaining Redevelopment Agency, 395 F. 2d 920, 931-932 (CA2 1968) (footnote
omitted). But where race is considered "for the purpose of achieving
equality," id., at 932, no automatic proscription is in order. For as
insightfully explained, "the Constitution is both color blind and color
conscious. To avoid conflict with the equal protection clause, a classification
that denies a benefit, causes harm, or imposes a burden must not be based on
race. In that sense, the Constitution is color blind. But the Constitution is
color conscious to prevent discrimination being perpetuated and to undo the
effects of past discrimination.
F.2d 836, 876 (CA5 1966)(Wisdom,J.): see Wechsler, The Nationalization of Civil
Liberties and Civil Rights Supp. To 12 Tex.Q.10,23(1968) (Brown may be seen as
disallowing racial classifications that "imply an invidious
assessment" while allowing such classifications when "not invidious
in implication" but advanced to "correct inequalities").
Contemporary human rights documents draw just this line; they distinguish
between policies of oppression and measures designed to accelerate de facto
equality. See Grutter, post, at 1 (Ginsburg, J. concurring)(citing the United
Nations - initiated Conventions on the Elimination of All Forms of Racial
Discrimination and on the Elimination of All Forms of Discrimination against
Women)." It is not necessary to express any opinion on this judgment one
way or the other but it is referred to as the same points out two different
viewpoints. But one thing is clear; ultimate constitutional goal is to attain
history would show that struggle of man for democratic polity was inspired by a
desire to achieve equality among them.
some of the world Constitutions in their preamble abhor inequality and proclaim
to achieve equality in all respects. Whatever may be the power and jurisdiction
of the State and State authorities to make a special provision in favour of
backward and downtrodden, when the Court tests the reasonableness of such
distinctive State action, it should be done by posing a question whether such
State action to ameliorate social, economic and political poverty; whatever be
the reason, delays the journey towards proclaimed goal of equality. If a
measure tends to perpetuate inequality and makes the goal of equality a mirage,
such measure should not receive the approval of the Court. The Court, in such
circumstances, has no mould the relief by indicating what would be the
reasonable measure or action which furthers the object of achie4ving equality.
The concept of equality is not a doctrinaire approach. It is a binding thread
which runs through the entire constitutional text. An affirmative action may,
therefore, be constitutionally valid by reason of Articles 15(4) and 16(4) and
various directive principles of State policy, but the Court cannot ignore the
constitutional morality which embraces in itself the doctrine of equality. It
would be constitutionally immoral to perpetuate inequality among majority
peop0le of the country in the guise of protecting the constitutional rights of
minorities and constitutional rights of backward and downtrodden. All the
rights of these groups are part of right to social development which cannot
render national interest and public interest subservient to right of an individual
or right of community.
event the minorities are not granted the right to establish educational
institutions of their choice and admit students of their community, the right
of equality would lose all its purpose and relevance. It is in that sense the
rights of the majority and minority must be held to be equal. In my opinion the
provisions of Articles 19(1)(g), 29(2) and 30 must be so construed.
as institutions imparting professional education are concerned, having regard
to the public interest, they are bound to maintain excellence in standard of
education. To that extent, there cannot be any compromise and the State would
be entitled to impose restrictions and make regulations both in terms of
Article 19(1)(g) and Article 30 of the Constitution of India. The width of the
rights and limitations thereof of unaided institutions whether run by a
majority or a minority must conform to the maintenance of excellence. With a
view to achieve the said goal indisputably the regulations can be made by the
right to administer does not amount to right to maladminister and the right is
not free from regulation. The regulatory measures are necessary for ensuring
orderly, efficient and sound administration.
regulatory measures can be laid down by the State in the administration of
30(1) of the Constitution does not confer an absolute right. The exercise of
such right is subject to permissible State regulations with an eye on
preventing mal-administration. Broadly stated there are "permissible
regulations" and "impermissible regulations".
of the permissible regulations/restrictions governing enjoyment of Article
30(1) of the Constitution are –
Guidelines for the efficiency and excellence of educational standards (See Sidhrajbhai
v. State of Gujarat, (1963) 3 SCR 837; State of Kerala v. Mother Provincial,
(1970) 2 SCC 2079; All Saints High School v. Government of Andhra Pradesh,
(1980) 2 SCC 478);
ensuring the security of the services of the teachers or other employees (See
In Re Kerala Education Bill, and All Saints High School v. Government of A.P.
of an outside authority or controlling voice in the matter of service
conditions of employees (See All Saints High School v. Government of A.P.
Framing Rules and Regulations governing the conditions of service of teachers
and employees and their pay and allowances (See State of Kerala v. Mother
Provincial (supra) and All Saints High School v. Government of A.P. (supra);
Appointing a high official with authority and guidance to oversee that Rules
regarding conditions of service are not violated, but, however such an
authority should not be given blanket, uncanalised and arbitrary powers (See
All Saints High School v. Government of Andhra Pradesh (supra);
Prescribing courses of study or syllabi or the nature of books [See State of Kerala
v. Mother Provincial (supra) and All Saints High School v. Government of A.P.
Regulation in the interest of efficiency of instruction, discipline, health,
sanitation, morality, public order and the like [See Sidhbajbahi v. State of
Gujarat (supra)] Subject to what has been stated in T.M.A. Pai Foundation, some
of the impermissible regulations are :
Refusal to affiliation without sufficient reasons [All Saints High School v.
Government of A.P. (supra)];
Such conditions as would completely destroy the autonomous administration of
the educational institution [All Saints High School v. Government of A.P.
of an outside authority either directly or through its nominees in the
governing body or the managing committee of minority institution to conduct the
affairs of the institution [All Saints High School v. Government of A.P.
Provision of an appeal or revision against an order of dismissal or removal by
an aggrieved member of staff or provisions for Arbitral Tribunal [See St. Xaviers
College v. State of Gujarat (supra), Lilly Kurian v. S.R. Lewina,
(1979) 2 SCC 124 and All Saints High School v. Government of A.P. (supra)];
THE STATE CAN IMPOSE RESERVATION ON A SELF FINANCED INSTITUTION IN PURPORTED
EXERCISE OF ITS RIGHT TO ENFORCE THE DIRECTIVE PRINCIPLES OF STATE POLICY
purported right of the States to prescribe a certain percentage of seats for
their nominees including those belonging to the reserved category candidates is
said to have arisen from:
The State grants essentiality certificate in terms whereof in the event of
closure of the institution the State undertakes to take over.
The States have a duty to enforce Directive Principles of State Policy in terms
of Article 38, 41, 45 and 47 of the Constitution of India.
Principles of State Policy contained in Part IV of the Constitution of India
are not justiciable.
clauses contained in Part III of the Constitution are to be found in Articles
14, 15 and 16. Whereas Article 14 mandates equality amongst all sections of
people, Articles 15 and 16 deal with the matters specified therein namely,
prohibition of discrimination on grounds of religion, race, caste, sex or place
of birth and equality of opportunities in matters of public employment.
concerned in this case with Article 15. Clauses (3) and (4) of Article 15 of
the Constitution of India read thus:
Nothing in this article shall prevent the State from making any special
provision for women and children."
Nothing in this article or in clause (2) of article 29 shall prevent the State
from making any special provision for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes and
Scheduled Tribes." The said provisions were inserted by the Constitution
First Amendment Act, 1951. There, thus, exists provision for an exception to
Articles 14 and 15 as also Clause (2) of Article 29 of the Constitution of
India. The State has also a right to make some reservation for women and
children in terms of Clause (3) of Article 15 of the Constitution of India.
Clauses (3) and (4) of Article 15 provide an exception to the general rule. A
special provision either for women and children in terms of Clause (3) or for
advancement of social and backward class of citizens of Scheduled Castes and
Scheduled Tribes in terms of clause (4) must be made by the State in terms of a
legislation or an executive order. Such a legislation or executive order would
be in relation to the State action. The said provisions cannot be extended by
way of imposition of restriction or regulation so as to impair the right of a
citizen of India under Article 19(1)(g) or Article
30 thereof. The question which may arise is as to whether the State can mandate
upon an industry or a business house (for example) to provide job to a person
belonging to a reserve category? If not, the necessary corollary would be that
such a restriction or regulation cannot be imposed on a citizen carrying on an
'occupation'. The right of a citizen in terms of Article 19(1)(g) of the
Constitution whether 'to practise any profession' or 'to carry on any
business/occupation' must be the same or similar. The reasonable restrictions
in terms of Clause (6) must be on the exercise of a right conferred by the said
sub-clause. Although reasonable restrictions can be imposed on exercise of such
right in terms of the constitutional scheme, the State cannot impose its own
duties and obligations upon a citizen.
Clauses (3) and (4) of Article 15 are enabling provisions. The States were to
take appropriate steps required therefor within the bounds, that is, limited
only for uplifting the weaker sections and not for conferring upon them a
can be made inter alia by way of compelling State necessity. In any event the
executive policy of the State cannot be thrust upon the citizens without any
this juncture, it may be useful to refer to the decisions of this Court in Re:
the Kerala Education Bill, 1957 (supra) wherein S.R. Das, J speaking for the
Constitution Bench held in the following terms:
counsel for the State of Kerala referred us to the directive
principles contained in Art. 45 which requires the State to endeavour to
provide, within a period of ten years from the commencement of the
Constitution, for free and compulsory education for all children until they
complete the age of fourteen years and with considerable warmth of feeling and
indignation maintained that no minorities should be permitted to stand in the
way of the implementation of the sacred duty cast upon the State of giving free
and compulsory primary education to the children of the country so as to bring
them up properly and to make them fit for discharging the duties and
responsibilities of good citizens. To pamper to the selfish claims of these
minorities is, according to learned counsel, to set back the hands of the clock
of progress. Should these minorities, asks learned counsel, be permitted to
perpetuate the sectarian fragmentation of the people and to keep them
perpetually segregated in separate and isolated cultural enclaves and thereby
retard the unity of the nation ? Learned counsel for the minority institutions
were equally eloquent as to the sacred obligation of the State towards the
minority communities. It is not for this Court to question the wisdom of the
supreme law of the land. We the people of India have given unto ourselves the Constitution which is not for any
particular community or section but for all. Its provisions are intended to
protect all, minority as well as the majority communities. There can be no
manner of doubt that our Constitution has guaranteed certain cherished rights
of the minorities concerning their language, culture and religion. These
concessions must have been made to them for good and valid reasons. Article 45,
no doubt, requires the State to provide for free and compulsory education for
all children, but there is nothing to prevent the State from discharging that
solemn obligation through Government and aided schools and Art. 45 does not
require that obligation to be discharged at the expense of the minority
communities. So long as the Constitution stands as it is and is not altered, it
is, we conceive, the duty of this Court to uphold the fundamental rights and
thereby honour our sacred obligation to the minority communities who are of our
the ages endless inundations of men of diverse creeds, cultures and races -
Aryans and non-Aryans, Dravidians and Chinese, Scythians, Huns, Pathans and Mughals
- have come to this ancient land from distant regions and climes. India has
welcomed them all. They have met and gathered, given and taken and got mingled,
merged and lost in one body. India's tradition has thus been epitomised in the
following noble lines :
shall be turned away From the shore of this vast sea of humanity That is
India" (Poems by Rabindranath Tagore).
India has sent out to the world her message of goodwill enshrined and
proclaimed in our National Anthem :
and night, thy voice goes out from land to land, calling Hindus, Buddhists,
Sikhs and Jains round thy throne and Parsees, Mussalmans and Christians.
are brought to thy shrine by the East and the West to be woven in a garland of
the hearts of all peoples into the harmony of one life, Thou Dispenser of
India's destiny, Victory, Victory, Victory to thee." (Rabindranath Tagore)
It is thus that the genius of India has been able to find unity in diversity by
assimilating the best of all creeds and cultures. Our Constitution accordingly recognises
our sacred obligations to the minorities. Looking at the rights guaranteed to
the minorities by our Constitution from the angle of vision indicated above, we
are of opinion that cl. 7 (except sub-cls. 1 and 3 which apply only to aided
schools) and cl. 10 may well be regarded as permissible regulation which the
State is entitled to impose as a condition for according its recognition to any
educational institution but that cl. 20 which has been extended by cl.
to newly established recognised schools, in so far as it affects educational
institutions established and administered by minority communities, is violative
Mathew, J. speaking for a 9-Judge Bench of this Court in Ahmedabad St. Xavier's
College Society (supra) laid down that the State necessity cannot be foisted
upon the minority. It was held:
find it impossible to subscribe to the proposition that State necessity is the
criterion for deciding whether a regulation imposed on an educational
institution takes away or abridges the right under Article 30(1).
legislature can impose any regulation which it think necessary to protect what
in its view is in the interest of the State or society, sounds paradoxical that
a right which the Constitution makers wanted to be absolute can be subjected to
regulations which need only satisfy the nebulous and elastic test of State
necessity. The very purpose of incorporating this right in Part III of the
Constitution in absolute terms in marked contrast with the other fundamental
rights was to withdraw it from the reach of the majority. To subject the right
today to regulations dictated by the protean concept of state necessity as
conceived by the majority would be to subvert the very purpose for which the
right was given." Others [(1984) 4 SCC 296] held that reservations for
students coming from rural areas would be bad in law.
difficult to define precisely what would constitute "local needs".
Mr. Venugopal refers to the Medical Council of India Regulations, 1999 for the
purpose of showing the requirements necessary to be considered by the State
Government for the grant of essentiality certificate. The State Government
alone would be in a position to determine local needs which may be based, for
instance, in the case of doctors, on the ratio of doctors to the population of
the State. Other factors such as the percentage of the relevant minority in the
State, the number of minority professional colleges belonging to that
particular linguistic/religious minority in the State, percentage of poorer and
backward sections in the State, total number of professional colleges therein,
contends Mr. Venugopal, would be relevant factors.
may be so but similarly there are many more factors that would contribute to
local needs. The criteria laid down in MCI Regulations no doubt provide for
some guidelines for the purpose of determination of local needs but the same
cannot be said to be exhaustive. Local needs would vary from State to State.
Even development of a backward area may be a local need. Absence of good
educational institutions in particular area may also be a local need. The State
may, in pursuit of its policy for the development of the people, consider it
expedient to encourage entrepreneurs for establishing educational institutions
in remote and backward areas for the benefit of the local people. Local needs,
therefore, cannot be defined only with reference to the State as a unit. For
good reasons the State may not like to establish professional colleges or
institutions only in their capitals.
local needs, thus, may have to be determined keeping in view the factors
enumerated therein but it must also be noticed that no essentiality certificate
is required to be given by the State in relation to engineering and other
professional colleges. While laying down the law based on interpretation of a
Constitution as well as a judgment, we cannot take a myopic view and hold that 'local
needs' must be referable to the medical education. Furthermore, it may be
difficult to give a restrictive meaning to the expression 'local needs' i.e.
keeping the same confined to the area where the educational institution is
sought to be established inasmuch as the right of minority extends to the
entire State and, thus, the local needs may also have direct nexus having
regard to the need of the State.
State of Maharashtra vs. Indian Medical Association and Others [(2002) 1 SCC
580], this Court did not decide the question as to whether the expression
"technical education" occurring in Article 371(2)(c) of the
Constitution is distinct and different from "medical education". The
questions which arise for consideration herein did not arise there.
Indian Medical Association case (supra), this Court was concerned with Maharashtra
University of Health Sciences Act, 1998 wherein the question revolved round as
to whether the essentiality certificate would be necessary for the State to
establish a Government- run medical college.
cannot read the said judgment out of context.
judgment, it is trite, is not to be read as a statute. The ratio decidendi of a
judgment is its reasoning which can be deciphered only upon reading the same in
its entirety. The ratio decidendi of a case or the principles and reasons on
which it is based is distinct from the relief finally granted or the manner
adopted for its disposal.
Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa 721] Others
[(2002) 3 SCC 533], it is stated:
is always peril in treating the words of a speech or judgment as though they
are words in a legislative enactment, and it is to be remembered that judicial
utterances are made in the setting of the facts of a particular case, said Lord
Morris in Herrington v. British Railways Board ((1972) 2 WLR 537 : 1972 AC 877
(HL) [Sub nom British Railways Board v. Herrington, (1972) 1 All ER 749 (HL)]).
flexibility, one additional or different fact may make a world of difference
between conclusions in two cases." [See also Haryana Financial Corporation
vs. Jagadamba Oil Mills and Another [(2002) 3 SCC 496] 137], it was held:
often enough pointed out by us, words and expressions used in a judgment are
not to be construed in the same manner as statutes or as words and expressions
defined in statutes. We do not have any doubt that when the words
"adjudication of the merits of the controversy in the suit" were used
by this Court in State of U.P. v. Janki Saran Kailash Chandra ((1974) 1 SCR 31
: (1973) 2 SCC 96 : AIR 1973 SC 2071), the words were not used to take in every
adjudication which brought to an end the proceeding before the court in
whatever manner but were meant to cover only such adjudication as touched upon
the real dispute between the parties which gave rise to the action.
to adjudication of the disputes between the parties, on whatever ground are in
truth not aids to the progress of the suit but hurdles to such progress.
Adjudication of such objections cannot be termed as adjudication of the merits
of the controversy in the suit. As we said earlier, a broad view has to be
taken of the principles involved and narrow and technical interpretation which
tends to defeat the object of the legislation must be avoided." Another
reported in AIR 1965 SC 1887, it was held:
141 empowers the Supreme Court to declare the law and enact it. Hence the
observation of the Supreme Court should not be read as statutory enactments. It
is also well known that ratio of a decision is the reasons assigned
therein." Punjab and Others [1985 (1) SCC 345] and Hameed Joharan (Dead)
and It will not, therefore, be correct to contend, as has been contended by Mr.
Nariman, that answers to the questions would be the ratio to a judgment. The
answers to the questions are merely conclusions. They have to be interpreted,
in a case of doubt or dispute with the reasons assigned in support thereof in
the body of the judgment, wherefor, it would be essential to read the other
paragraphs of the judgment also. It is also permissible for this purpose
(albeit only in certain cases and if there exist strong and cogent reasons) to
look to the pleadings of the parties.
Supp (1) SCC 272], this Court when faced with difficulties where specific
guidelines had been laid down for determination of seniority of Maharashtra,
(1990) 2 SCC 715 held that the conclusions have to be read along with the
discussions and the reasons given in the body of the judgment.
further trite that a decision is an authority for what it decides and not what
can be logically deduced therefrom. [See Union of The judgment of this Court in
T.M.A. Pai Foundation (supra) will, therefore, have to be construed or to be
interpreted on the aforementioned principles. The Court cannot read some
sentences from here and there to find out the intent and purport of the
decision by not only considering what has been said therein but the text and
context in which it was said. For the said purpose the Court may also consider
the constitutional or relevant statutory provisions vis-à-vis its earlier
decisions on which reliance has been placed.
bare reading of the relevant paragraphs of the judgment some of which are
referred to hereinbefore, it is beyond any doubt that in the matter of
determination of the fee structure the unaided institutions exercise a greater
autonomy. They, like any other citizens carrying on an occupation, must be held
to be entitled to a reasonable surplus for development of education and
expansion of the institution. Reasonable surplus doctrine can be given effect
to only if the institutions make profits out of their investments. As stated in
paragraph 56, economic forces have a role to play. They, thus, indisputably
have to plan their investment and expenditure in such a manner that they may
generate some amount of profit. What is forbidden is (a) capitation fee and (b)
the different State Governments have prescribed different amounts by way of
fees as would appear from the following:- State Fee Andhra Pradesh Rs. 22000
per annum Delhi Rs. 45000 per annum Gujarat Govt. Seats -Rs. 21,000 Management
Seats - Rs. 50000 Haryana Rs. 40,000 per annum Karnataka Rs. 47,590/- For
non-Karnataka Rs. 75,590 Kerala Rs. 37,100 Tamil Nadu Management seat - Rs.
30000 Merit student - Rs. 25000 Uttar Pradesh Rs. 45,000 per annum The
expression 'Capitation fee' does not have any fixed meaning.
Legislatures of some of the States, however, have defined capitation fee. We
may notice that in the Tamil Nadu Educational Institutions (Prohibition of
Collection of Capitation Fee) Act, 1992, Capitation fee has been defined as:
fee means any amount by whatever name called, paid or collected directly or
indirectly in excess of the fee prescribed under Section 4;" Section 4 of
the said Act states that any amount collected in excess of the fee so
prescribed is prohibited in the following terms:
of fee, etc. –
Notwithstanding anything contained in any other law for the time being in
force, the Government, by notification, regulate the tuition fee or any other
fee or deposit that may be received or collected by any educational institution
or class or classes of such educational institutions in respect of any or all
class or classes of students:
that before issuing a notification under this sub-section, the draft of which
shall be published, in the Tamil Nadu Government Gazette stating that any
objection or suggestion which may be received by the Government, within such
period as may be specified therein, shall be considered by them.
educational institution shall receive or collect any fee or accept deposit in
excess of the amount notified under sub-section (1).
educational institution shall issue an official receipt for the fee or deposit
received or collected by it." Once, however, it is held that such a
provision would not constitute a reasonable restriction within the meaning of
Clause (6) of Article 19, it must also be held that such a provision would not
satisfy the test of permissible regulations within the meaning of Article 30
ground reality, however, cannot be lost sight of. It is true, as has been
contended by the learned counsel appearing on behalf of the applicants, that
the Central Government in answer to question raised in the Parliament has
stated that the expenses incurred by the State for imparting education to the
students is very high. It may vary from three lakhs to five lakhs. Some States,
however, in their colleges charge about rupees five thousand per year; whereas
the unaided institutions demand anything between rupees two lakhs to five lakhs.
State Governments unfortunately followed suit, hiked fees and like many private
unaided institutions the State of Haryana has also demanded the entire amount
of fees for the whole course.
fee structure, thus, in relation to each and every college must be determined
separately keeping in view several factors including, facilities available,
infrastructure made available, the age of the institution, investment made,
future plan for expansion and betterment of the educational standard etc. The
case of each institution in this behalf is required to be considered by an
appropriate Committee. For the said purpose, even the books of accounts
maintained by the institution may have to be looked into.
is determined by the Committee by way of a fee structure having regard to
relevant factors some of which are enumerated hereinbefore, the management of
the institution would not be entitled to charge anything more.
determining the fee structure, safeguard has to be provided for so that
professional institutions do not become auction houses for the purpose of
selling seats. Having regard to the statement of law laid down in para 56 of
the judgment, it would have been better, if sufficient guidelines could have
been provided for. Such a task which is a difficult one has to be left to the
Committee. While fixing the fee structure the Committee shall also take into
consideration, inter alia, the salary or remuneration paid to the members of
the faculty and other staff, the investment made by them, the infrastructure
provided and plan for future development of the institution as also expansion
of the educational institution. Future planning or improvement of facilities
may be provided for. An institution may want to invest in an expensive device
(for medical colleges) or a powerful computer (for technical college). These
factors are also required to be taken care of. The State must evolve a detailed
procedure for constitution and smooth functioning of the Committee.
this Court has not laid down any fixed guidelines as regard fee structure, in
my opinion, reasonable surplus should ordinarily vary from 6% to 15%, as such
surplus would be utilized for expansion of the system and development of
institutions shall charge fee only for one year in accordance with the rules
and shall not charge the fees for the entire course.
has been defined in Black's Law Dictionary, Fifth edition as:
advantage of unusual or exceptional circumstances to make excessive
profits" With a view to ensure that an educational institution is kept
within its bounds and does not indulge in profiteering or otherwise exploiting
its students financially, it will be open to the statutory authorities and in
its absence by the State to constitute an appropriate body, till appropriate
statutory regulations are made in that behalf.
respective institutions, however, for the aforementioned purpose must file an
appropriate application before the Committee and place before it all documents
and books of accounts in support of its case.
once fixed should not ordinarily be changed for a period of three years, unless
there exists extra-ordinary reason. The proposed fees, before indication in the
prospectus issued for admission, have to be approved by the concerned
authority/ Body set up. For this purpose the application should not be filed
later than April of the preceding year of the relevant education session. The
authority/ Body shall take the decision as regards fees chargeable later by
October of the year concerned, so that it can form part of the prospectus. No
institution should charge any fee beyond the amount fixed and the fee charged
shall be deposited in a nationalized bank. In other words, no employee or any
other person employed by the Management shall be entitled to take fees in cash
from the students concerned directly. The statutory authority may consider the
desirability of framing an appropriate regulation inter alia to the effect that
in the event it is found that the management of a private unaided professional
institution has accepted any amount other than the fees prescribed by the
Committee, it may have to pay a penalty ten to fifteen times of the amount so
collected and in a suitable case it may also lose its recognition or
there cannot be any doubt that before any such order is passed the institutions
concerned shall be entitled to an opportunity of being heard. For the
aforementioned purpose, the State shall set up a machinery to detect cases
where amounts in excess of permitted limit are collected as it is the general
experience that students pay a huge amount.
if for some reason, fees have already been collected for a longer period the
amount so collected shall be kept in a fixed deposit in a nationalized bank
against which no loan or advance may be granted so that the interest accrued
thereupon may enure to the benefit of the students concerned. Ordinarily,
however, the management should insist for a bond from the concerned students.
ENTRANCE TEST AND PERCENTAGE OF SEATS:
48 to 66 appear under the heading "Private unaided non-minority educational
institutions" whereas paragraphs 67, 68 and 69 appear under the heading
"Private unaided professional colleges". The observations made by the
bench, however, having regard to paragraphs 58 and 59 are referable to both to
the minority and non-minority unaided institutions. Paragraph 68 in no
uncertain terms lays emphasis on merit for the purpose of admission to
paragraphs 58 and 59 also deal with professional institutions although
discussions appear under different heading.
however, would not minimize the importance of the statement of law made
68 does not state that the statement of law made therein. applies only to the
minorities, as for the purpose of local needs it refers to different percentages
both for minority aided and non-minority unaided professional colleges. It
cannot, therefore, be said that paragraph 68 has to be read in isolation and
paragraphs 58 and 59 of the judgment would be irrelevant for the said purpose.
If the said paragraphs are read conjointly, there cannot be any doubt that
merit must be at the forefront. For the said purpose professional and higher
educational institutions have been clubbed together.
dichotomy has arisen in view of the findings of the bench occurring in
paragraphs 58 and 59 on the one hand and 68 of the judgment on the other. Paras
68 refers to private unaided professional colleges which would include both
minority and non-minority as would appear from the following :
prescription of percentage for this purpose has to be done by the Government
according to the local needs and different percentages can be fixed for
minority unaided and non-minority unaided and professional colleges."
Paragraph 58 clearly states that the merit must play an important role. In no
uncertain terms, it is directed :
seeking admission to a professional institution and to become a competent
professional, it is necessary that meritorious candidates are not unfairly
treated or put at a disadvantage by preferences shown to less meritorious but
more influential applicants. Excellence in professional education would require
that greater emphasis be laid on the merit of a student seeking admission.
observations made in this judgment in the context of admissions to unaided
institutions." It, therefore, takes into its fold inter se merit between
minority and non-minority students.
59 contains illustration as to how the merit is usually determined. It may be
true that paragraph 59 being illustrative in nature, other options at the hands
of the minority institutions are not excluded but a confusion has certainly
crept in as therein both minority and non-minority have been clubbed together.
59 deals with how to determine the merit by giving illustration. Thus, it does
not rule out any other method for determining the merit which may also include
marks obtained in qualifying examination. Paragraphs 58, 59 and 68, in my
opinion, must be allowed to be given effect to and read conjointly for the said
68 should be read in five parts :
difference is sought to be made as regards rules and regulations applicable to
the aided institutions vis-à-vis unaided professional institutions. (This shows
that the regulations relating to admission of students shall be less rigid for
unaided institutions as compared to aided institutions);
While conceding autonomy to the unaided professional institutions (both
minority and non-minority), it is mandatory that the principle of merit cannot
be foregone or discarded (This shows that role played by merit must be given
The conditions may be laid down by the University or the other statutory bodies
entitled to grant recognition to provide for merit based selection. (The same,
however, in my opinion, would not mean that no condition other than those
imposed at the time of grant of recognition can be imposed by way of
legislation or otherwise inasmuch as the field of imparting education in
professional institutions is governed by statutes. To the said extent, it has
to be read down);
The management of a private unaided professional colleges for the purpose of
admitting students will have options :-
hold a common entrance test by itself; or
follow the common entrance test held by the State or the University.
students belonging to the management quota may be admitted having regard to the
common entrance test either held by the management or by the State/University,
although the test may be common. So far as students belonging to poorer or
backward section of society is concerned, their seats will have to be filled up
on the basis of counselling by the State agency. (As would appear from the
discussions made hereinafter, it cannot be taken to its logical conclusin);
The percentage of management quota and the rest is required to be prescribed
having regard to the local needs. (However, the percentage for minority unaided
and non-minority unaided institutions may be different).
not correct to say that only because two different expressions
"certain" and "different" have been mentioned at two places
in para 68, they connote two different meanings. They will have to be read in
the context in which they have been used. As a logical corollary, it will also
be incorrect to say that minority unaided institutions can fill up all the
seats from amongst the students belonging to their community whereas the
non-minority unaided institutions will have no such right. The very fact that
different percentages are to be fixed up for minority unaided and non-minority
unaided institutions is itself a clear pointer to show that although different
percentages may be prescribed therefor; but both minority unaided and
non-minority institutions can admit the students of their choice to the extent
of the percentage so prescribed, albeit without giving a go bye to the merit
reservation can be made out of the candidates who have been found to be
meritorious on the above basis. For instance, if 100 students qualify on merit
either through a school leaving examination or a common entrance test,
reservation can be made for certain percentage of students. The balance of the
seats can then made available to students who belong to non-minority community
including poorer or backward section of society as mentioned in paragraph 68 of
the judgment. This will not only take care of admission with regard to
meritorious candidates including minority candidates for whom a reservation is
made but also for other students as for the local needs of the State.
is to be held that in a case of minority institution all the seats could be
filled in by members of their community/language, if available, the same would
run counter to para 68 of the judgment which says about certain percentage
which can never be 100%. The expression "different percentages"
occurring in para 68 would clearly mean there cannot be any fixed percentage.
In a given case it may be more than 90% but in another it may be less than 50%.
Different percentages must be worked out in terms of the need of the
institution. It has nothing to do with minority or non-minority; aided or
dictum of the court in St. Stephen vis-à-vis T.M.A. Pai Foundation must be read
in that context. It cannot be said as a matter of legal proposition that in
each and every case the minority educational institutions would be entitled to
fill up more than 50% of the seats from amongst the students of their choice
and that too irrespective of merit. The fact that even students belonging to
minority community take admission in colleges run or aided by the State or
other private unaided colleges cannot be lost sight of. On taking into
consideration all the relevant criteria only the percentage can be worked out.
It would be, in my considered opinion, wrong to compare the unaided
institutions always with aided institutions. St. Stephen should be understood
in proper perspective. What is explained in T.M.A. Pai (supra) is that there
cannot be any fixed percentage. Each case will have to be considered on its own
merit. Need of the institution should be the prime concern. Percentage will
have to be worked out having regard to the need only.
the purpose of achieving excellence in a professional institution, merit
indisputably should be a relevant criterion. Merit, as has been noticed in the
judgment, may be determined in various ways (Para 59). There cannot be, however, any fool-proof method whereby and whereunder
the merit of a student for all times to come may be judged.
because a student may fare differently in a different situation and at
different point of time by itself cannot be a ground to adopt different
standards for judging his merit at different points of time. Merit for any
purpose and in particular for the purpose of admission in a professional
college should be judged as far as possible on the basis of same or similar
examination. In other words, inter se merit amongst the students similarly
situated should be judged applying the same norm or standard. Different types
of examinations, different sets of questions, different ways of evaluating the
answer books may yield different results in the case of the same student.
of students, however, by the minority institutions even for the members of their
community cannot be bereft of merit. Only in a given situation less meritorious
candidates from the minority community can be admitted vis-a-vis the general
category; but therefor the modality has to be worked out. For the said purpose
de facto equality doctrine may be applied instead of de jure equality as every
kind of discrimination may not be violative of the equality clause. (See Pradeep
Jain vs. Union of India - 1984 (3) SCC 654).
be true that some self-financed professional institutions have been permitted
to hold their own examination so as to enable the management to fill up their
seats from its own quota, as fixed by the State Government. Although no
complaint has yet been received by the respective Governments, it may be
possible that the time was not ripe for it. As and when complaints are received
with regard to holding of an impartial and transparent test, the same has to be
examined by the State/University. We may, however, place on record that the
State of Maharashtra has placed before us a chart showing that some of the
students had appeared at two examinations and one who got only 8% in the common
entrance test held by the State, passed the examination held by the management.
From the above chart supplied to us by the State of Maharashtra, it appears
that only three students who had appeared both at the common entrance test held
by the State and the management had passed the common entrance test held by the
State whereas a large number of students had passed the test held by the management,
although they could not pass the Common Entrance Test. The merit of the
students whether belonging to the minority community or otherwise, thus, may be
required to be placed on more rigid test.
considering this question, we may not also loose sight of the fact that a
student who aspires to take admission in a professional college keeping in view
the extent of competition he has to face, would like to appear in as many
examinations as possible. For the said purpose he or she may not choose only
one State. Even in a State like Karnataka, as has been noticed in T.M.A. Pai
Foundation (supra), a large number of private institutions exist. But, if they
are permitted to hold their own examinations, not only the students will have
to purchase different admission forms, which as noticed hereinbefore, may cost
between Rs.500/- to Rs.1,000/- but he may be asked to appear in examinations at
various places on the same day or on the next day and having regard to the
distance, the transport facilities and other factors, he may not be able to
appear therein. Travelling from place to place for the purpose of appearance at
the examinations in quick succession would also entail a huge expenditure. It
may also be difficult to direct that such examinations be held with sufficient
time gap. The fact remains that in terms of this judgment each State will be
entitled to hold their own examinations. We are also not oblivious of the fact
that allegations have been made that some institutions even may not sell an
admission form unless it is assured of a hefty sum at the time of admission. It
may be true that the States like Karnataka, Kerala and Tamil Nadu have
permitted the minority institutions to conduct their own examinations for the
purpose of admitting the students of their choice. Some institutions have
pointed out that they have been holding such examinations for a long long time
on all-India basis and fairness and transparency of such examinations have
never been questioned by any State or the statutory authorities. We do not
intend to go into the correctness or otherwise of the said plea.
their cases may be considered separately by the appropriate body if any
occasion arises therefor. While granting the right to determine the suitability
of a candidate on the basis of marks obtained in the qualifying examination or
on the basis of their own examination, or an examination conducted by the
State, merit cannot be sacrificed.
mechanism as far as practicable must be found out also for the purpose of judging
the inter se merit.
answers to Questions 5 (a) and (c), would go to show that the minority unaided
institution have a right to evolve their own machinery for admitting the
students on the basis of merit subject of course to passing the fairness and
transparency test. Even for non- minority professional institutions such a
right has been recognized.
is no mechanism which would ensure fairness or transparency of the examination
held by each and every unaided professional institution. A suggestion has been
mooted out that Associations/Federations of private institutions have been
formed. It may, thus, be possible to protect the right of the minority if such
Associations/Federations take a decision in this behalf in consultation with the
statutory authorities or the concerned State as regards holding of a common
entrance test for the said purpose.
notice that Mr. R.N. Trivedi, learned Additional Solicitor General, has
submitted that the Central Government may hold such all- India examinations but there are
practical difficulties in this behalf, as has been rightly pointed out by Mr. Venugopal.
The need of each State must be judged separately. A number of students may like
to take a chance of taking admission in more than one State. Unless proper
mechanism and requisite infrastructure therefor is created, as at present
advised, it may not be possible for the Central Government to hold any
examination on all-India basis. There is another aspect of the matter which
cannot be lost sight of. There must be an agency which would have to determine
the equivalence of several examinations.
universities have adopted such a mechanism. The standard of education varies
from State to State or university to university or board to board. In such a
situation, equivalence of degrees must be considered for the said purpose by an
aforementioned premise, I am of the opinion that the right of the minorities
should be protected and fairness and transparency in holding such examinations
would also be maintained if the minority institutions come to a consensus
through their association or federation to hold a common test under the
supervision of a monitoring committee which may be subject to verification at a
later stage by taking recourse to:
answer papers may be preserved; and
case of dispute some independent agency may determine the same.
goes without saying that having regard to the number of institutions vis-à-vis
number of candidates with reference to the local needs, it will be open to the
State/University to fix higher cut-off marks than prescribed by the Medical
Council of India or the All India Council for Technical Education. So far as
common entrance test proposed to be held by the Federation/Association of
private unaided professional institutions is concerned, the modalities and the
detailed procedure therefor must be worked out so that it may not cause any
undue inconvenience to either the students or the institution(s).
of an example, we may state that if a common entrance test is held under the
auspices of the Federation/Association, it must clearly spell out that those
who belong to minority community, whether based on religion or language, shall
be admitted only in the institutions run by such community and not in the
institutions run by the other community at the first instance. Only in the
event the seats remain unfilled up, they would clearly be filled up by the
students belonging to the general category including those who do not belong to
that particular community running the institution. Similarly, the mode and
manner in which the expenses are to be incurred for holding the examinations,
the apportionment thereof as well the disbursement of the amount earned by way
of selling the admission forms etc. have to be worked out by the Committee.
minority institutions imparting professional courses may have a legal or
constitutional right to hold their own examination; but a serious consideration
is required to be bestowed as to whether for the purpose of judging merit they
should opt for the Common Entrance Test held by the State. Such a course, if
resorted to, would not only be helpful for determining the inter se merit
between the students/candidates but also would be sufficient to be indicative
of the fact how and to what extent the students belonging to minorities lag
behind the majority so that special efforts can be made to bring their standard
up to the national level.
quota of seats to be filled up by the State Government for the poor or weaker
sections of society may be fixed on the basis of the entrance test held by the
concerned State Government or the University.
disability of a meritorious student should come to the forefront for
determining criteria as regard poor or weaker sections of the society.
cannot, however, be any gain-saying that the appropriate statutory authority on
a deeper consideration of the matter may prescribe a suitable method for the
purpose of determining the merit as also the fair and transparent manner in
which such examinations can be conducted. Such a power exists under the UGC
Act, MCI Act and AICTE Act. The relevant enactments wherein these statutory
authorities have been created provide for such law. However, assuming such a
machinery is not evolved, the State may constitute a body which may be headed
by a person who has been a judge of the High Court to be nominated by the Chief
Justice thereof. Standard of education at no cost shall be given a go by.
any institution if it thinks proper and expedient, may file an application for
grant of exemption so as to enable it to hold its own examination. An
application in this behalf should be filed by the end of April of the previous
year in which such examination is sought to be held. The aforementioned body
would pass an appropriate order within three months from the date of receipt of
such representation upon giving an opportunity of hearing and placing of
material in support of its stand, to the institution concerned.
States like State of Tamil Nadu, Karnataka and Kerala have permitted the
educational institutions to hold their own examination for the purpose of
admitting students within their quota.
of the States like Maharashtra and Gujarat insist on admitting the students
through Common Entrance Test. The following chart gives a glimpse as to how
different States understood the judgment of this Court differently:
Andhra Pradesh 85% 15% Delhi 95% 15% Max Gujarat 85% 15% Haryana 15% AIEEE 15%
70% CEET 2003 Karnataka 75% 25% Kerala 50% 50% Orissa 85% 15% Tamil Nadu 50%
50% Uttar Pradesh 85% 15% Chhattisgarh 60% 40% Maharashtra 85% 15% (These seats
must also be filled from the State common entrance test list) Unless there
exists any exigency normally the institutions will have the right to admit a
higher percentage of students depending upon their need. However all such
students must be admitted only on merit.
event, some seats remain vacant, they must be filled by general category
students strictly on merit.
noticed hereinbefore, different States and different High Courts have laid down
different percentages of seats for management and the State. The learned
counsels appearing on behalf of parties have submitted that this Court may,
with a view to avoid any future controversy, fix a definite percentage for the
said purpose. We are afraid that it is not possible. Different institutions may
be established by different minority communities. The need of the minority
community may differ from State to State. The need of the minority community
may have a nexus with the population belonging to that community in that State.
It will further depend upon various other relevant factors. By way of example,
we may say that in a State where the percentage of a particular religion may be
30 or 35, the minority institution established by members of that religion may
have a higher stake than the members of the community professing a religion but
the population of which is negligible. Similar may be the case with minority
institutions based on language.
percentage of seats will also depend upon the need of the community in a
particular State as also the need of the institution itself. The nature of the
professional course would also have relevance. All these factors must be taken
into consideration by the appropriate committee or Body so long a statutory
regulation is not framed in this behalf.
the need of the community vis-à-vis the local needs must be judged upon taking
into consideration the relevant factors and ignoring irrelevant ones. In terms
of Paragraph 68 of the judgment, local need would be a relevant factor for the
purpose of determining the percentage of students who would be admitted on
needs, if it is compelling state interest, will have a primacy over the need of
the minority community and in that view of the matter it would not be correct
to lay down a proposition of law that the need of that community in the State
would be paramount. Each case, thus, has to be considered on its own merit and
no hard and fast rule can be laid down therefor.
the aforementioned purpose also, a machinery should be evolved in the
respective States, the decision of which shall be final and binding.
there may not be any permanent Committee functioning as a tribunal. Such a
body, if any, must be created under a statute. A tribunal with an adjudicatory
power should not be directed to be created by this Court in exercise of its
power under Article 142 of the Constitution of India. This direction is only interim
in nature and is being issued in the interest of all concerned. It is,
therefore, clarified that the body created in terms of this judgment would
function only so long a statutory body, if any, does not come into being by
reason of a statute or statutory rules. The Legislature or the rule making
authority may, however, lay down the procedure for proper functioning thereof.
profession in general and medical profession in particular in all countries and
in all ages has been considered to be a noble profession. To acquire
excellence, these professions demand a very high calibre, which criteria can be
satisfied only by the meritorious students. If we want to achieve very high
standard which would be comparable to the standard of the developed countries,
then merit and merit alone should be the basis of selection for the candidates.
not only to maintain high standard of education, but also to maintain
uniformity of standard, the right of selection of candidates for any
professional course cannot be left to the discretion of any individual
management. Efforts must be made to find out one single standard for all the
to ensure high standard of education and for that purpose to ensure admission
to the most eligible candidates, requiring merit in a poor country like ours,
the tuition and other fees should be within the reach of common people.
as minority institutions are concerned, merit criteria would have to be judged
like a pyramid. At the kindergarten, primary, secondary levels, minorities may
have 100% quota. At this level the merit may not have much relevance at all but
at the level of higher education and in particular professional education and
post graduate level education, merit indisputably should be a relevant criteria.
At the post-graduation level, where there may be a few seats, the minority
institutions may not have much say in the matter. Services of doctors,
engineers and other professionals coming out from the institutions of
professional excellence must be made available to the entire country and not to
any particular class or group of people. All citizens including the minorities
have also a fundamental duty in this behalf.
RIGHTS ASPECTS OF SELECTION ON THE BASIS OF MERIT:
aspect of the matter may also be considered from Human Rights angle.
of minorities, on the one hand, and rights of persons to have higher education
and right of development should be so construed so as to enable the Court to
give effect thereto.
Universal Declaration of Human Rights, 1948 provides for 27 rights. Right of
Education is also one of the human rights. Article 26 reads thus:
Everyone has the right to education. Education shall be free, at least in the
elementary and fundamental stages. Elementary education shall be compulsory.
Technical and professional education shall be made generally available and
higher education shall be equally accessible to all on the basis of
Education shall be directed to the full development of the human personality
and to the strengthening of respect for human rights and fundamental freedoms.
It shall promote understanding, tolerance and friendship among all nations,
racial or religious groups, and shall further the activities of the United
Nations for the maintenance of peace.
have a prior right to choose the kind of education that shall be given to their
children." (Emphasis Supplied) Article 3 of Convention Against
Discrimination in Education (1960) reads thus:
3 undertakes "to ensure, by legislation, where necessary, that there is no
discrimination in the admission of pupils to educational institutions; not to
allow any difference of treatment by the public authorities between nationals,
except on the basis of merit or need, in the matter of school fees and the
grant of scholarships..to give foreign nationals resident within their
territory the same access to education as that given to their own
nationals." Apart from the aforementioned rights, Right to Development is
also a human right. "Development" connotes an ongoing process. An
economic prosperity or elimination of poverty is not the only goal to be achieved
but along with it allows individuals to lead a life with dignity with a view to
participate in the Governmental process so as to enable them to preserve their
identity and culture.
refer to the UN Declaration on the Right to Development, 1986. The Declaration
describes development as a comprehensive economic, social, cultural and
political process, which aims at constant improvement of well being of people
and of individuals on the basis of their active, free and meaningful
participation in the process.
UNESCO Convention against Discrimination in Education, the States parties agree
(Article 5[c]) that "it is essential to recognize the right of members of
national minorities to carry on their own educational activities, including the
maintenance of schools and, depending on the educational policy of each State,
the use or the teaching of their own language," and set out the
circumstances in which this right may be exercised. The European Convention on
Human Rights contains a provision (Article 14) in which "association with
a national minority" is listed among a series of grounds upon which
discrimination is prohibited. The International Covenant on Civil and Political
Rights, adopted by the UN General Assembly in 1966, includes an article on the
rights of persons belonging to minorities which reads:
27. In those States in which ethnic, religious or linguistic minorities exist,
persons belonging to such minorities shall not be denied the right, in
community with other members of their group, to enjoy their own culture, to
profess and practice their own religion, or to use their own language."
Among the decisions of principal organs of the United Nations which have dealt
with the question of special protective measures for ethnic, religious, or linguistic
groups are three resolutions of the General Assembly:
the future government of Palestine,
the question of the disposal of the former Italian colonies and
the question of Eritrea.
addition, the Statue of the City of Jerusalem, approved by the Trusteeship Council, on 4 April 1950, provides special protective measures for ethnic,
religious, or linguistic groups in articles dealing with human rights and
fundamental freedoms, the legislative council, the judicial system, official
and working languages, the educational system and cultural and benevolent
institutions, and broadcasting and television.
the texts of the instruments and decisions mentioned above, it may be inferred
that the term "minority" is applied internationally to two distinct
categories of persons: (a) minorities whose members desire equality with
dominant groups in the sole sense of non- discrimination, and (b) those whose
members desire equality with dominant groups in the sense of non-discrimination
and the recognition of certain special rights and the rendering of certain
positive services. The kind of "minority rights" that they feel they
are entitled to claim if their equality within the State is to be real includes
one or more of the following:
of adequate primary and secondary education for the minority in its own
language and its cultural traditions;
for maintenance of the culture of the minority through the establishment and
operation of schools, libraries, museums, media of information, and other
cultural and educational institutions;
of adequate facilities to the minority for the use of its language, either
orally or in writing, in the legislature, before the courts, and in
administration, and the granting of the right to use that language in private
for respect of the family law and personal status of the minority and their
religious practices and interests; and
of a certain degree of autonomy.
areas are sought to be secured wherefor the struggle continues. The gap between
the developed and the developing countries is a yawning one. Whereas there has
been a rapid economic growth in a few countries bringing millions of people out
of poverty, narrowing the gap between haves and have-nots, a large number of
countries have seen the gap grow and poverty increase. Development and the
eradication of poverty vis-à-vis human rights must be seen in that perspective.
right to establish professional colleges both by minorities and non-minorities
has been found in Article 19(1)(g) as also Article 30 of the Constitution of
India. These rights vis-à-vis restrictions and limitations thereupon should be
construed not only from economic point of view but also having regard to the
international treaties, declarations and conventions on Human Rights. The right
of a minority is a human right so also the right of development. Thus, subject
to reasonable restrictions, any unaided institution imparting professional
courses may although exercise greater autonomy in the matter of management and
determination of the fee structure, it will have a limited right so far as the
right to admit students is concerned.
Pai Foundation says that merit shall be the criteria. Right of development
finds place in WTO and GATT. It takes into consideration globalisation and
opening up of economy. Excellence in professional education must be viewed from
the economic interest in the country. In order to compete with the other
developed countries, GDP of India should be around 15% instead of present rate
of 5%. This can be achieved only by producing students of excellence, which can
be achieved only by encouraging institutions of excellence imparting
professional education to those who are meritorious. Giving encouragement to
the students, having better merit will, thus, have a direct nexus with the
economic and consequently the national interests of the country. The right of
development from the human right point of view must be construed liberally.
When there are two competing human rights namely human rights for the religious
minorities and the human rights for development, having regard to the economic
and national interest of the country in the matter of admission of students,
the latter should be allowed to prevail subject to protection of the basic
minority rights. The State may have to strike a delicate balance between these
two competing rights. Furthermore, the right to admit students may vary from
course to course, discipline to discipline. At the stage of post graduate
level, there may be only one seat or two seats, and, thus, in such a situation
the right of the minority institutions to admit a student may be less than in
the case of non- professional course.
education", Nani Palkhiwala said, "should lead to civilization."
Recently, in Kapila Hingorani vs. State of Bihar [JT 2003 (5) SC 1], a Bench of this Court noticed the following
observations of Field, J. in Munn vs. Illinois [(1877) 94 US 113] as to what is
"Life", which was in the following terms :
more than mere animal existence and the inhibition against the deprivation of
life extends to all those limits and faculties by which life is enjoyed."
Therein it was noticed :
right to development in the developing countries is itself a human right. The
same has been made a part of WTO and GATT. In 'The World Trade Organization,
Law, Practice, and Policy (Oxford) by
Matsushita Schoenbaum and Mauroidis at page 389, it is stated:
United Nations has proclaimed the existence of a human right to development.
right refers not only to economic growth but also to human welfare, including
health, education, employment, social security, and a wide-range of other human
needs. This human right to development is vaguely defined as a so-called third-
generation human right that cannot be implemented in the same way as civil and
political human rights. Rather, it is the obligation of states and
intergovernmental organizations to work within the scope of their authority to
combat poverty and misery in disadvantaged countries." [Emphasis supplied]
Poverty to a great extent can be combated through education.
regard to globalisation and opening up of the market, the State expects various
medical colleges and educational institutions and universities to move in.
Under WTO and GATT human development has taken its firm root. A decent life to
the persons living in the society in general is perceived.
said scenario this Court in Kapila Hingorani(supra) observed :
States of India are welfare States. They having regard to the constitutional
provisions adumbrated in the Constitution of India and in particular Part IV
thereof laying down the Directive Principles of the State Policy and Part IVA
laying down the Fundamental Duties are bound to preserve the practice to
maintain the human dignity." To achieve this, the promotion of human
development and the preservation and protection of human rights proceed from a
common platform. Both reflect the commitment of the people to promote freedom,
the well-being and dignity of individuals in society. Human development as a
human right has a direct nexus with the increase in capabilities of human
beings as also the range of things they can do.
development is eventually in the interest of society and on a larger canvas, it
is in the national interest also. As a human right, human development finds its
echo in several areas as for example in excellence in professional education,
be it the study of medicine, engineering or law. Progress and development in
these fields will not only give a boost to the economy of the country but also
result in better living conditions for the people of India.
T.M.A. Pai Foundation's case (supra), this Court called upon the private
unaided institutions including the minority educational institutions to fulfill
the hopes and aspirations of the meritorious students and in particular the
meritorious socially and educationally backward students. Higher education as
contained in Article 26 must be based on merit. The competing human rights of
the minorities vis-à-vis any other citizen, thus, requires a delicate balance.
Article 51A(j) enjoins a duty of every citizen of India inter alia to strive
towards excellence in all spheres of individual and collective activity so that
the nation constantly rises to higher levels of excellence and achievement.
T.M.A Pai Foundation (supra), this Court in no uncertain terms said that merit
would be the first criteria for imparting professional education. It must be
given full effect with the aid of these additional reasons.
the minorities have a right to establish institutions of their own choice, they
admittedly do not have any right of recognition or affiliation for the said
purpose. They must fulfill the requirements of law as also other conditions
which may reasonably be fixed by the appropriate Government or the university.
T.M.A. Pai Foundation (supra) it was laid down that certain conditions can be
imposed as regards admission of students, mode of holding examinations at the
time of grant of recognition. A question has been raised by Mr. Nariman that
once recognition has been granted, no further restriction can be imposed. We do
not agree. There exist some institutions in this country which are more than a
would be too much to say that only because an institution receives
recognition/affiliation at a distant point of time the appropriate Government
is denuded of its power to lay down any law in imposing any fresh condition
despite the need of change owing to passage of time.
the Parliament or the State Legislatures are not denuded of its power having
regard to restrictions that may satisfy the test of clause (6) of Article 19 of
the Constitution of India or regulations in terms of Article 30 depending upon
the national interest/public interest and other relevant factors. We, however,
wish to emphasise that the State/University while granting recognition or the
affiliation cannot impose any condition in furtherance of its own needs or in
pursuit of the Directive Principles of State Policy.
unfortunate that a Constitution Bench had to be constituted for interpreting a
11-Judge Bench judgment. Probably in judicial history of India, this has been done for the first
time. It is equally unfortunate that all of us cannot agree on all the points,
despite the fact that the matter involves construction of a judgment. In the
name of interpretation we have to some extent, however little it may be re-
written the judgment. We have laid down new laws and issued directions
purported to be in terms of Article 142 of the Constitution. We have
interpreted T.M.A. Pai; but we have also made endeavours to give effect to it.
In some areas it was possible; in some other it was not.
have refrained ourselves from expressing any opinion at this stage as to
whether grant of settlement of Government land at a throw- away price or
allowing the private institutions to avail the facilities of Government
hospitals would amount to grant of aid or not. We have also not expressed any
opinion on cross-subsidy.
superior courts in India exist for interpretation of
Constitution or interpretation of statutes. They cannot evolve a fool- proof
system on the basis of affidavits filed by the parties or upon hearing their
counsel. Certain details of vexing problems on the basis of the interpretation
given by this Court must be undertaken by the statutory bodies which have the
requisite expertise. It is expected that statutory bodies would be able to
perform their duties for which they have been established. The doors of the
Court should not be knocked every time, if a problem arises in implementation
of the judgment, however slight it may be. The Court has its own limitations.
The problems which can be sorted at the ground level by holding consultations
should not be allowed to be brought to the Court.
in that view of the matter, we have thought it fit to direct setting up of committees
for the aforementioned purposes.
present constitutional set up having regard to Entry 66, List I of the
Constitution of India, the legislative power of the State may be very limited;
the extent whereof may have to be determined in appropriate cases. But the
stake of the State in such matters is also not minimal. The State has to evolve
its own policies generating the source of employment.
have come across several schemes framed by the States in terms whereof
incentives are being given to the private industries for generating employment
or reduction in taxes is being proposed if graduates are employed. The
respective States, therefore, must apply its mind while granting essentiality
certificate inasmuch as the human resource development problems will have to be
faced by it. In evolving a sound policy decision in this behalf, the statutory
bodies shall also have to lend their ears to the respective State Governments
while granting permission for establishment of the professional educational institutions.
The Human Resource Development Ministry of the Central Government should also
play its role.
for clarification are, thus, disposed of. The writ petitions may now be placed
before appropriate Benches for disposal.
facts and circumstances of this case, there shall be no order as to costs.