Initially, petitioners have questioned four notifications two notifications issued by Medical Council of India and other two notifications issued by Dental Council of India.
No Acts & Articles mentioned in this case
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL/ APPELLATE JURISDICTION
TRANSFERRED CASE (CIVIL) NO.98 OF 2012
CHRISTIAN MEDICAL COLLEGE
VELLORE ASSOCIATION … PETITIONER(S)
VERSUS
UNION OF INDIA AND OTHERS … RESPONDENT(S)
WITH
TRANSFERRED CASE (CIVIL) NO. 102 OF 2012
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WRIT PETITION (CIVIL) NO. 443 OF 2016
WRIT PETITION (CIVIL) NO. 750 OF 2016
CIVIL APPEAL NO. 2383 OF 2020
(@ SPECIAL LEAVE PETITION (CIVIL) NO. 28223 OF 2016)
AND
TRANSFERRED CASE (CIVIL) NO. 25 OF 2019
J U D G M E N T
ARUN MISHRA, J.
1.Most of the cases have a chequered history. Initially, petitioners
have questioned four notifications two notifications dated 21.12.2010
issued by Medical Council of India (for short, ‘the MCI’) and other two
notifications dated 31.5.2012, issued by Dental Council of India (for
short, ‘the DCI’). The MCI by virtue of Regulations on Graduate
Medical Education (Amendment) 2010, (Part II) notified by the
Government of India, amended the Regulations on Graduate Medical
Education, 1997. Similarly, the other notification issued by MCI
called “PostGraduate Medical Education (Amendment) Regulation,
2010 (PartII)” to amend the Post Graduate Medical Education
Regulations, 2000. The regulations came into force on their
publication in the Official Gazette. The other two notifications dated
31.5.2012 issued by DCI were relating to admission in the BDS and
MDS courses.
5
2.The MCI issued notifications in exercise of power conferred by
Section 33 of the Indian Medical Council Act, 1956 (for short, ‘the Act
of 1956’). The amendments were made in the Regulation on Graduate
Medical Education, 1997. The change was made in Clause 5 in
Chapter II of the Regulations. Clause 5 provided for procedure for
selection thus:
"6. In Chapter II, Clause 5 under the heading “Procedure for
selection to MBBS Course shall be as follows” shall be
substituted as under:
(i) There shall be a single eligibilitycumentrance examination,
namely, ‘National EligibilitycumEntrance Test for admission
to MBBS course’ in each academic year. The overall
superintendence, direction, and control of the National
EligibilitycumEntrance Test shall vest with the Medical
Council of India. However, the Medical Council of India, with
the previous approval of the Central Government, shall select
organisation(s) to conduct 'National EligibilitycumEntrance
Test for admission to MBBS course.
(ii) In order to be eligible for admission to MBBS course for a
particular academic year, it shall be necessary for a candidate
to obtain minimum of 50% (fifty percent) marks in each paper
of National EligibilitycumEntrance Test held for the said
academic year. However, in respect of candidates belonging to
the Scheduled Castes, the Scheduled Tribes, and the Other
Backward Classes, the minimum percentage shall be 40%
(forty percent) in each paper, and in respect of candidates with
locomotory disability of lower limbs, the minimum percentage
marks shall be 45% (fortyfive percent) in each paper of
National EligibilitycumEntrance Test:
Provided when sufficient number of candidates belonging to
respective categories fail to secure minimum marks as
prescribed in National EligibilitycumEntrance Test in any
academic year for admission to MBBS course, the Central
Government in consultation with the Medical Council of India
may at its discretion lower the minimum marks required for
admission to MBBS course for candidates belonging to
respective categories and marks so lowered by the Central
Government shall be applicable for the said year only.
6
(iii) The reservation of seats in medical colleges for respective
categories shall be as per applicable laws prevailing in
States/Union Territories. An all India merit list as well as
Statewise merit list of the eligible candidates shall be
prepared on the basis of the marks obtained in National
EligibilitycumEntrance Test and candidates shall be
admitted to MBBS course from the said lists only.
(iv) No candidate who has failed to obtain the minimum
eligibility marks as prescribed in subclause (ii) above shall be
admitted to MBBS course in the said academic year.
(v) All admissions to MBBS course within the respective
categories shall be based solely on marks obtained in the
National EligibilitycumEntrance Test.”
(emphasis supplied)
3.Similarly, amendments to the Post Graduate Medical Education
Regulations, 2000 were made. The relevant portion of the
amendments made are extracted hereunder:
“No. MCI. 18(1)/2010Med./49070. — In exercise of the
powers conferred by Section 33 of the Indian Medical Council
Act, 1956 (102 of 1956), the Medical Council of India with the
previous approval of the Central Government hereby makes
the following regulations to further amend the ‘Postgraduate
Medical Education Regulations, 2000’, namely:
1. (i). These Regulations may be called 'the Postgraduate
Medical Education (Amendment) Regulations, 2010 (Part II)'.
(ii) They shall come into force from the date of their publication
in the Official Gazette.
2. In the ‘Postgraduate Medical Education Regulations, 2000’,
the following additions/ modifications/ deletions/
substitutions, shall be as indicated therein:
3. Clause 9 under the heading ‘SELECTION OF
POSTGRADUATE STUDENTS’ shall be substituted as under:
“9. Procedure for selection of candidate for Postgraduate
courses shall be as follows:
(i) There shall be a single eligibilitycumentrance
examination, namely, National EligibilitycumEntrance
Test for admission to Postgraduate Medical Courses in each
7
academic year. The overall superintendence, direction and
control of National EligibilitycumEntrance Test shall vest
with Medical Council of India. However, the Medical Council
of India, with the previous approval of the Central
Government shall select organisation(s) to conduct National
EligibilitycumEntrance Test for admission to Postgraduate
courses"'."
4.Similar notifications were issued by DCI providing for procedure
for selection of candidates for MBBS Course and Postgraduate Course
and also for BDS and MDS. Thus, National EligibilitycumEntrance
Test (for short, ‘the NEET’) for admission to the MBBS course and the
Postgraduate course and similarly for BDS and MDS came to be
introduced. Now the statutory provisions under Section 10D of the
Act of 1956 providing for uniform entrance examination for
undergraduate and postgraduate level which came into force on
24.5.2016. Section 10D is extracted hereunder:
“10D. Uniform entrance examination for undergraduate
and postgraduate level.— There shall be conducted a
uniform entrance examination to all medical educational
institutions at the undergraduate level and postgraduate level
through such designated authority in Hindi, English and such
other languages and in such manner as may be prescribed
and the designated authority shall ensure the conduct of
uniform entrance examination in the aforesaid manner:
Provided that notwithstanding any judgment or order of any
court, the provisions of this section shall not apply, in relation
to the uniform entrance examination at the undergraduate
level for the academic year 201617 conducted in accordance
with any regulations made under this Act, in respect of the
State Government seats (whether in Government Medical
College or in a private Medical College) where such State has
not opted for such examination.”
(emphasis supplied)
8
Section 10D of the Dentists Act, 1948, containing similar
provisions with respect of uniform entrance examination has also been
inserted, same is extracted hereunder:
“10D. Uniform entrance examination for undergraduate
and postgraduate level.—There shall be conducted a uniform
entrance examination to all dental educational institutions at
the undergraduate level and postgraduate level through such
designated authority in Hindi, English and such other
languages and in such manner as may be prescribed and the
designated authority shall ensure the conduct of uniform
entrance examination in the aforesaid manner:
Provided that notwithstanding any judgment or order of any
court, the provisions of this section shall not apply, in relation
to the uniform entrance examination at the undergraduate
level for the academic year 201617 conducted in accordance
with any regulations made under this Act, in respect of the
State Government seats (whether in Government Dental
College or in a private Dental College) where such State has
not opted for such examination.”
5.The Regulations on Graduate Medical Education, 1997 have also
been amended by Regulations on Graduate Medical Education
(Amendment) 2017. The admission to the medical course eligibility
criteria has been prescribed by amended Clause 4 . Following has
been substituted:
“3. In Clause 4, under the heading Admission to the Medical
Courseeligibility criteria, and in subclause 4 (1) & (1A), the
following shall be substituted:
4. Admission to the Medical CourseEligibility Criteria: No
candidate shall be allowed to be admitted to the Medical
Curriculum proper of first Bachelor of Medicine and Bachelor
of Surgery course until he /she has qualified the National
Eligibility Entrance Test, and he/she shall not be allowed to
appear for the National EligibilityCumEntrance Test until:
(1) He/she shall complete the age of 17 years on or before 31
st
December of the year of admission to the MBBS.
9
(1A) He/She has obtained a minimum of marks in National
EligibilityCumEntrance Test as prescribed in Clause 5 of
Chapter II.”
(emphasis supplied)
In Chapter II, Clause 5 under the heading “Procedure for
selection to MBBS” has been substituted by MCI in 2017 as under:
“7. In ChapterII, Clause 5 under the heading “Procedure for
selection to MBBS course shall be as follows” shall be
substituted as under:
“Procedure for selection to MBBS course shall be as
follows:”
(1) There shall be a uniform entrance examination to all
medical educational institutions at the under graduate level
namely ‘National EligibilitycumEntrance Test for
admission to MBBS course in each academic year and shall
be conducted under overall supervision of the Ministry of
Health & Family Welfare, Government of India.
(2) The “designated authority” to conduct the ‘National
EligibilityCum Entrance Test’ shall be the Central Board
of Secondary Education or any other body/organization so
designated by the Ministry of Health & Family Welfare,
Government of India, in consultation with the Medical
Council of India.
(3) The language and manner of conducting the ‘National
EligibilityCumEntrance Test’ shall be determined by the
“designated authority” in consultation with the Medical
Council of India and the Ministry of Health and Family
Welfare, Government of India.
(4) In order to be eligible for admission to MBBS Course for
a academic year, it shall be necessary for a candidate to
obtain minimum of marks at 50
th
percentile in ‘National
EligibilitycumEntrance Test to MBBS course’ held for the
said academic year. However, in respect of candidates
belonging to Scheduled Castes, Scheduled Tribes, Other
Backward Classes, the minimum marks shall be at 40
th
percentile. In respect of candidates with benchmark
disabilities specified under the Rights of Persons with
Disabilities Act, 2016, in terms of Clause 4(3) above, the
minimum marks shall be at 45th percentile for General
Category candidates and 40th percentile for SC/ST/OBC
candidates. The percentile shall be determined on the basis
of highest marks secured in the AllIndia common merit list
for admission in ‘National EligibilitycumEntrance Test for
admission to MBBS course.
10
Provided when sufficient number of candidates in the
respective categories fail to secure minimum marks as
prescribed in National EligibilitycumEntrance Test held
for any academic year for admission to MBBS Course, the
Central Government in consultation with Medical Council of
India may at its discretion lower the minimum marks
required for admission to MBBS Course for candidates
belonging to respective categories and marks so lowered by
the Central Government shall be applicable for the said
academic year only.
(5) The reservation of seats in Medical Colleges for
respective categories shall be as per applicable laws
prevailing in States/Union Territories. An All India merit list
as well as State/Union Territorywise merit list of the
eligible candidates shall be prepared on the basis of marks
obtained in ‘National EligibilitycumEntrance Test and
candidates shall be admitted to MBBS course from the said
lists only.
(6) No candidate who has failed to obtain the minimum
eligibility marks as prescribed in Subclause (4) above shall
be admitted to MBBS course in the said academic year.
(7) No authority/institution shall admit any candidate to
the MBBS course in contravention of the criteria/procedure
as laid down by these Regulations and/or in violation of the
judgments passed by the Hon'ble Supreme Court in respect
of admissions. Any candidate admitted in
contravention/violation of aforesaid shall be discharged by
the Council forthwith. The authority/institution which
grants admission to any student in contravention /violation
of the Regulations and/or the judgments passed by the
Hon'ble Supreme Court, shall also be liable to face such
action as may be prescribed by the Council, including
surrender of seats equivalent to the extent of such
admission made from its sanctioned intake capacity for the
succeeding academic year/years.
(8) All admission to MBBS course within the respective
categories shall be based solely on the marks obtained in
the ‘National EligibilityCumEntrance Test.”
(emphasis supplied)
6.Initially, the matters filed in 20122013 were heard by a Bench
of three Judges, and the matters were decided vide judgment and
order dated 18.7.2013. As per the majority opinion, the petitions were
11
allowed. The notifications issued by MCI and DCI providing for NEET
were quashed. However, the admissions, which were made, were not
interfered with. Review petitions were filed, which were entertained
and were ultimately allowed on 11.4.2016, and judgment dated
18.7.2013 was recalled.
7.In Writ Petition (C) No.443 of 2016, prayer has been made to
protect the rights of the petitionerinstitutions guaranteed under
Articles 14, 15, 25, 26 and 30 of the Constitution of India. In Writ
Petition (C) No.750 of 2016, prayer is made to direct the respondents
to conduct centralized counselling for admission to all Graduate
Medical and Dental Courses throughout the country. In Transferred
Case (C) No.25 of 2019, it is stated that vires of the provisions of
Maharasthra Unaided Private Professional Educational Institution
(Regulation of Admissions & Fees) Act, 2015, applying them to
Unaided Private Minority Professional Educational Institutions are bad
in law. In S.L.P. (C) No.28223 of 2016, provisions have been
questioned on the ground that they cannot take away the rights
guaranteed under Articles 19(1)(g) and 30 read with Articles 25, 26
and 29(1) of the Constitution of India.
8.Initially, the questions were raised that MCI and DCI could not
have introduced NEET as the same offends the fundamental rights
12
guaranteed under Article19(1)(g) of the Constitution of India and the
rights of religious and linguistic minorities to establish and administer
educational institutions of their choice as guaranteed under Article 30
Constitution of India. Thus, subordinate legislation could not have
overriding effect over the fundamental rights guaranteed under
Articles 25, 26, 29(1), and 30 of the Constitution of India. Now the
amendment made could not take away or abridge the aforesaid rights
of minorities. The right to admit students is one of the fundamental
rights, thus, rider of clearing NEET examination could not have been
imposed.
9.It was urged on behalf of petitioners that the impugned
notifications violate the fundamental rights of an unaided minority
institution to “establish and administer educational institutions of
their choice” protected under Article 30 read with Articles 25 and 26 of
the Constitution of India, which includes the right to admit students
of their own choice. The doctrine of limited Government provides that
a citizen's liberty and autonomy is the central notion of the
Constitution of India and there is an inherent limitation on the State's
involvement in matters of admissions of students. The NEET
prescribes no alternative to the institution, impinges upon the
fundamental rights of an unaided minority institution to establish and
administer educational institution of their choice.
13
10.It was further urged on behalf of petitioners that State has no
power to compel an unaided minority institution to admit students
through a single centralized national examination such as NEET. The
unaided minority professional colleges have the fundamental rights to
choose the method and manner in which to admit its students,
subject to satisfying the triple test of having a fair, transparent, and
nonexploitative process.
11.It was also argued on behalf of petitioners that they have a time
tested admission procedure without any complaints. Their process is
fair and transparent, and they have a fundamental right to protect
autonomy and reputation by continuing to admit students using their
admission process. The NEET cannot be the only parameter to
determine the merit of a student. Some of the institutions are
providing best medical professional by having their procedure for
admission. They have fundamental rights under Articles 19(1)(g) and
30(1) of the Constitution to conduct and manage the affairs of the
institution. The State, while imposing reasonable restrictions, can fix
the threshold criterion of merit, but cannot restrict the petitioners
from having any additional criteria of merit over and above the
threshold fixed by the State. The restriction violates the test of
proportionality.
14
12.The petitioners have also referred to the existing position
concerning centralised examination for professional courses in India
and internationally, to hold entrance examination cannot be
compulsion, it has to be voluntarily. They have relied upon Common
Law Admission Test (CLAT) a system of examination for admission in
the Law Colleges. Reference has also been made to the admission
process followed in Indian Institute of Technology (IITs), National
Institute of Technology (NITs) and Indian Institute of Management
(IIMs). NEET is the first of its kind, both in India and globally, where
all institutions are compelled by the State to follow a single admission
procedure. Some of the institutions are having an excellent record.
They follow the gurukul tradition. With the introduction of NEET in
201617, institutions have been compelled to admit students through
NEET instead of their method. Some of them have the All India
Entrance Test. They have their unique procedure of admission for
MBBS as well as Post Graduation. The system of examination of some
of the institutions is wider on All India Basis, and they test general
ability also, whereas, in NEET, evaluation is based on three subjects,
namely, Physics, Biology, and Chemistry. They have an elaborate
procedure of the assessment, and they do not admit students only
based on their theoretical knowledge. Some of them are the best
15
medical educational institutions in the country. There is not even a
single allegation of maladministration against some of the reputed
institutions. The principles, which govern the selection, are eligibility,
suitability, and distributive justice. The selection of candidates is an
important factor to the medical colleges to suit their requirements in a
particular field.
13.There are various issues which have arisen according to the
admission given for postgraduate examination after the introduction
of NEET. Now, in some of the specialised institutions, they are not
getting good doctors to take care of patients, for example, in the
Oncology Department. Some of the candidates are not able to bear
the burden of the procedure and have expressed their inability to go
with very sick patients. Some of them were not able to undertake
procedures in a sterile manner to avoid infections. Similar is the
position in other superspeciality departments. There are complaints
of lack of clinical competence among students admitted to speciality
courses like general medicine.
14.The petitioners further submitted that they have a fundamental
right to admit students of their own choice under Article 30 of the
Constitution. It is submitted that the admission procedure adopted by
them passes the triple test, i.e., fair, transparent, and non
16
exploitative. Various orders were passed by this Court recognising
fair method adopted in individual institutions while admitting
students through their admission procedure as apparent from interim
orders passed in the years 1993, 1994, 1995, and 1998.
15.This Court on 28.4.2016 passed an order in Sankalp Charitable
Trust and Anr. v. Union of India and Ors., (Writ Petition (C) No.261 of
2016), in which it was clarified that order passed in the said matter
shall not affect the hearing of the petitions. Most of petitions
remained pending after recall of the order earlier passed by this Court.
As per appellants, the ratio laid down in Modern Dental College and
Research Centre and Ors. v. State of Madhya Pradesh and Ors., (2016)
7 SCC 353, is not applicable. While deciding the said case, this Court
did not deal with the rights of unaided minority institutions. A
Division Bench of Madras High Court held that the procedure of
admission of some of the institutions is fair, transparent and non
exploitative. Reliance has been placed on the T.M.A. Pai Foundation
and Ors. v. State of Karnataka and Ors., (2002) 8 SCC 481 to contend
that State have minimal interference and if possible, to be made only
to maintain academic standards. The right to admit students is one of
the fundamental rights recognized by this Court. The challenge in
Modern Dental College and Research Centre (supra) was to the State
level examination, i.e., the Common Entrance Test (CET). The holding
17
of NEET would not be in the interest of the academic standard of
premier medical institutions in the country. The change in admission
procedure of students would result in a sharp decline in the current
standards of excellence in education maintained at the institution,
that would not be in public interest. The admission procedure
followed by petitioners is head and shoulders above the NEET. The
concept of limited government has also been relied upon by referring
to the decisions in Gobind v. State of Madhya Pradesh and Anr., (1975)
2 SCC 148 and K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
Reliance has also been placed on the Islamic Academy of Education
and Ors. v. State of Karnataka and Ors., (2003) 6 SCC 697 and P.A.
Inamdar and Ors. v. State of Maharashtra and Ors., (2005) 6 SCC 537.
16.It was argued that provisions of the MCI and DCI Acts and
regulations which have been amended during the pendency of the
petitions cannot take away the right of the institutions to admit their
students under Article 30 of the Constitution of India. Thus, the
prescription of NEET cannot be said to be permissible for the
institutions in question.
17.On behalf of respondents, reliance has been placed on Sankalp
Charitable Trust and Anr. v. Union of India and Ors., (2016) 7 SCC 487,
Modern Dental College and Research Centre (supra) and P.A. Inamdar
18
(supra). It was also argued that Section 10D has been inserted in the
Act of 1956 it provides that there shall be a uniform common entrance
conducted by the designated authority. The main reasoning of this
Court in Christian Medical College Vellore v. Union of India, (2014) 2
SCC 305, which decision has been recalled, was that uniform common
entrance examination could not be introduced by way of subordinate
legislation and under the Act of 1956 and MCI had no power to
conduct the said examination. After the introduction of Section 10D,
both the said lacunas have been plugged. The introduction of NEET is
constitutionally valid. In Modern Dental College and Research Centre
(supra), the Court considered the question of conduct of examination
by private medical colleges in the State of Madhya Pradesh for
admitting students in their colleges. In State of Madhya Pradesh v.
Jainarayan Chouksey and Ors., (2016) 9 SCC 412, while deciding the
contempt petition it was observed that judgment dated 2.5.2016
passed in the case of Modern Dental College and Research Centre
(supra), held that admission should be made through a centralised
procedure to be conducted by the State Government. The Court again
in the State of Maharashtra v. D.Y. Patil Vidyapeeth and Ors., (2016) 9
SCC 401, decided on 28.9.2016 reiterated that the decision in Modern
Dental College and Research Centre (supra) makes it unequivocally
clear that centralised counselling is an adjunct and part of the
19
uniform common entrance test. The notifications were also challenged
by minority institutions, deemed Universities, and other private
institutions by filing writ petitions in this Court. The Court in the
judgment dated 9.5.2017 in DarusSalam Educational Trust and Ors.
v. Medical Council of India and Ors., (Writ Petition (C) No.267 of 2017),
observed that common counselling did not in any manner affect the
right of minority institutions to admit students of their minority
community. As such, their right to admit students of their community
was fully protected. The institutions were entitled to fill students of
minority quota in their respective medical colleges. NEET is a
qualifying examination to determine merit and also ensure fair
procedure and equality of opportunity that most meritorious
candidates get admitted in the medicine and dental courses. Reliance
has been placed on Yatinkumar Jasubhai Patel and Ors. v. State of
Gujarat and Ors., (2019) 10 SCC 1, in which the Court considered the
question of institutional preference/reservation after introduction of
NEET, and observed that introduction of NEET did not affect 50%
State quota seats in PG medicine course. It may be filled based on
institutional reservation.
18.The primary issue is whether by providing centralised
examination system – NEET for admission to MBBS, PG, BDS and
MDS by virtue of the provisions made in the Act and regulations, there
20
is violation of fundamental rights guaranteed under Articles 19(1)(g),
25, 26, 29(1) and 30 of the Constitution of India.
19.We first advert to take note that various decisions rendered by
this Court in respect of the right of minority as stated under Article 30
of the Constitution of India.
20.In Re The Kerala Education Bill, 1957, AIR 1958 SC 956,
question arose concerning right of the Government to prescribe
qualification to be possessed by the incumbents for appointment as
teachers in aided or recognized schools. The State Public Service
Commission was empowered to select candidates for appointment as
teachers in Government and aided schools. The Court opined that
minority cannot ask for the aid or recognition for an educational
institution without competent teachers and fair standards. The choice
does not necessarily militate against the claim of the State to insist on
reasonable regulations to ensure the excellence of the institutions to
be aided or even recognized. The Court held thus:
“(29) Their grievances are thus stated: The gist of the right of
administration of a school is the power of appointment,
control, and dismissal of teachers and other staff. But under
the said Bill such power of management is practically taken
away. Thus the manager must submit annual statements (Cl.
5). The fixed assets of the aided schools are frozen and cannot
be dealt with except with the permission of the authorised
officer (Cl. 6). No educational agency of an aided school can
appoint a manager of its choice and the manager is completely
under the control of the authorised officer, for he must keep
accounts in the manner he is told to do and to give periodical
21
inspection of them and on the closure of the school the
accounts must be made over to the authorised officer (Cl. 7).
All fees etc. collected will have to be made over to the
Government (Cl. 8(3)). Government will take up the task of
paying the teachers and the nonteaching staff (Cl. 9).
Government will prescribe the qualification of teachers (Cl. 10).
The school authorities cannot appoint a single teacher of their
choice, but must appoint persons out of the panel settled by
the Public Service Commission (Cl. 11). The school authorities
must provide amenities to teachers and cannot dismiss,
remove, reduce, or even suspend a teacher without the
previous sanction of the authorised officer (Cl. 12). ……
(31) We are thus faced with a problem of considerable
complexity apparently difficult of solution. There is, on the one
hand the minority rights under Art. 30(1) to establish and
administer educational institutions of their choice and the
duty of the Government to promote education, there is, on the
other side the obligation of the State under Art. 45 to
endeavour to introduce free and compulsory education. We
have to reconcile between these two conflicting interests and to
give effect to both if that is possible and bring about a
synthesis between the two. The directive principles cannot
ignore or override the fundamental rights but must, as we
have said, subserve the fundamental rights. We have already
observed that Art. 30(1) gives two rights to the minorities, (1)
to establish and (2) to administer educational institutions of
their choice. The right to administer cannot obviously include
the right to maladminister. The minority
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. It stands to reason, then, that the
constitutional right to administer an educational institution of
their choice does not necessarily militate against the claim of
the State to insist that in order to grant aid the State may
prescribe reasonable regulations to ensure the excellence of
the institutions to be aided. Learned AttorneyGeneral
concedes that reasonable regulations may certainly be
imposed by the State as a condition for aid or even for
recognition... ...Clauses 6, 7, 9, 10, 11, 12, 14, 15, and 20
relate to the management of aided schools. Some of these
provisions, e.g., 7, 10, 11(1), 12(1)(2)(3) and (5) may easily be
regarded as reasonable regulations or conditions for the grant
of aid. Clauses 9, 11(2) and 12(4) are, however, objected to as
going much beyond the permissible limit. It is said that by
taking over the collections of fees etc., and by undertaking to
pay the salaries of the teachers and other staff the
Government is in reality confiscating the school fund and
taking away the prestige of the school, for none will care for
22
the school authority. Likewise Cl. 11 takes away an obvious
item of management, for the manager cannot appoint any
teacher at all except out of the panel to be prepared by the
Public Service Commission which, apart from the question of
its power of taking up such duties, may not be qualified at all
to select teachers who will be acceptable to religious
denominations and in particular subcl. (2) of that clause is
objectionable for it thrusts upon educational institutions of
religious minorities teachers of Scheduled Castes who may
have no knowledge of the tenets of their religion and may be
otherwise weak educationally. Power of dismissal, removal,
reduction in rank, or suspension is an index of the right of
management, and that is taken away by Cl. 12(4). These are,
no doubt, serious inroads on the right of administration and
appear perilously near violating that right. But considering
that those provisions are applicable to all educational
institutions and that the impugned parts of Cls. 9, 11 and 12
are designed to give protection and security to the ill paid
teachers who are engaged in rendering service to the nation
and protect the backward classes, we are prepared, as at
present advised, to treat these clauses 9, 11(2) and 12(4) as
permissible regulations which the State may impose on the
minorities as a condition for granting aid to their educational
institutions. We, however, find it impossible to support Cls. 14
and 15 of the said Bill as mere Regulations. The provisions of
those clauses may be totally destructive of the rights under
Art. 30(1). It is true that the right to aid is not implicit in Art.
30(1) but the provisions of those clauses, if submitted to on
account of their factual compulsion as condition of aid, may
easily be violative of Art. 30(1) of the Constitution. Learned
Counsel for the State of Kerala recognizes that Cls. 14 and 15
of the Bill may annihilate the minority communities' right to
manage educational institutions of their choice but submits
that the validity of those clauses is not the subject matter of
question 2. But, as already explained, all newly established
schools seeking aid or recognition are, by Cl. 3(5), made
subject to all the provisions of the Act. Therefore, in a
discussion as to the constitutional validity of Cl. 3(5) a
discussion of the validity of the other clauses of the Bill
becomes relevant, not as and by way of a separate item but in
determining the validity of the provisions of Cl. 3(5). In our
opinion, subcl. 3 of Cl. 8 and Cls. 9, 10, 11, 12 and 13 being
merely regulatory do not offend Art. 30(1), but the provisions
of subcl. (5) of cl. 3 by making the aided educational
institutions subject to Cls. 14 and 15 as conditions for the
grant of aid do offend against Art. 30(1) of the Constitution.”
(emphasis supplied)
23
21.In Rev. Sidhajbhai Sabhai and Ors. v. State of Bombay and Anr.,
(1963) 3 SCR 837, the Court again considered the matter and
observed that educational institutions cater to the needs of the
citizens or section thereof. Regulation made in the real interests of
efficiency of instruction, discipline, health, sanitation, morality, public
order, and the like may undoubtedly be imposed. Such regulations
are not restrictive on the substance of the right, which is guaranteed,
they secure the proper functioning of the institution in the matter of
education. It was also observed that regulation must satisfy a dual
test the test of reasonableness and that it is regulative of the
educational character of the institution and is conducive to making
the institution a capable vehicle of education for the minority
community or other persons who resort to it. In Rev. Father W. Proost
and Ors. v. State of Bihar and Ors., AIR 1969 SC 465, the Court
observed thus:
“8. In our opinion, the width of Article 30(1) cannot be cut
down by introducing in it considerations on which Article 29(1)
is based. The latter article is a general protection which is
given to minorities to conserve their language, script, or
culture. The former is a special right to minorities to establish
educational institutions of their choice. This choice is not
limited to institution seeking to conserve language, script, or
culture, and the choice is not taken away if the minority
community having established an educational institution of its
choice also admits members of other communities. That is a
circumstance irrelevant for the application of Article 30(1)
since no such limitation is expressed and none can be implied.
The two articles create two separate rights, although it is
possible that they may meet in a given case.”
24
22.In Ahmedabad St. Xavier's College Society and Anr. v. State of
Gujarat and Anr., (1974) 1 SCC 717, a college was run by the minority.
A Bench of 9Judges of this Court considered the question whether
Sections 40 and 41 of the Gujarat University Act, 1949 violated
Section 30, which provided all colleges within the University area
would be governed by the statutes of the University which may provide
for minimum educational qualifications for teachers and tutorial staff.
The University may approve the appointments of teachers to
coordinate and regulate the facilities provided and expenditure
incurred. The Court opined that regulation which serves the interests
of the teachers are of paramount importance in good administration,
education should be a great cohesive force in developing integrity of
the nation, thus:
“19. The entire controversy centres round the extent of the
right of the religious and linguistic minorities to administer
their educational institutions. The right to administer is said
to consist of four principal matters. First is the right to choose
its managing or governing body. It is said that the founders of
the minority institution have faith and confidence in their own
committee or body consisting of persons elected by them.
Second is the right to choose its teachers. It is said that
minority institutions want teachers to have compatibility with
the ideals, aims, and aspirations of the institution. Third is the
right not to be compelled to refuse admission to students. In
other words, the minority institutions want to have the right to
admit students of their choice subject to reasonable
regulations about academic qualifications. Fourth is the right
to use its properties and assets for the benefit of its own
institution.
20. The right conferred on the religious and linguistic
minorities to administer educational institutions of their
choice is not an absolute right. This right is not free from
regulation. Just as regulatory measures are necessary for
25
maintaining the educational character and content of minority
institutions, similarly, regulatory measures are necessary for
ensuring orderly, efficient, and sound administration. Das,
C.J., in the Kerala Education Bill case (supra) 1959 SCR 995:
AIR 1958 SC 956, summed up in one sentence the true
meaning of the right to administer by saying that the right to
administer is not the right to maladminister.
30. Educational institutions are temples of learning. The
virtues of human intelligence are mastered and harmonised by
education. Where there is complete harmony between the
teacher and the taught, where the teacher imparts and the
student receives, where there is complete dedication of the
teacher and the taught in learning, where there is discipline
between the teacher and the taught, where both are
worshippers of learning, no discord or challenge will arise. An
educational institution runs smoothly when the teacher and
the taught are engaged in the common ideal of pursuit of
knowledge. It is, therefore, manifest that the appointment of
teachers is an important part in educational institutions. The
qualifications and the character of the teachers are really
important. The minority institutions have the right to
administer institutions. This right implies the obligation and
duty of the minority institutions to render the very best to the
students. In the right of administration, checks, and balances
in the shape of regulatory measures are required to ensure the
appointment of good teachers and their conditions of service.
The right to administer is to be tempered with regulatory
measures to facilitate smooth administration. The best
administration will reveal no trace or colour of minority. A
minority institution should shine in exemplary eclectism in the
administration of the institution. The best compliment that
can be paid to a minority institution is that it does not rest on
or proclaim its minority character.
31. Regulations which will serve the interests of the students,
regulations which will serve the interests of the teachers are of
paramount importance in good administration. Regulations in
the interest of efficiency of teachers, discipline, and fairness in
administration are necessary for preserving harmony among
affiliated institutions.
46. The ultimate goal of a minority institution too imparting
general secular education is advancement of learning. This
Court has consistently held that it is not only permissible but
also desirable to regulate everything in educational and
academic matters for achieving excellence and uniformity in
standards of education.
26
47. In the field of administration it is not reasonable to claim
that minority institutions will have complete autonomy.
Checks on the administration may be necessary in order to
ensure that the administration is efficient and sound and will
serve the academic needs of the institution. The right of a
minority to administer its educational institution involves, as
part of it, a correlative duty of good administration.
90. We may now deal with the scope and ambit of the right
guaranteed by clause (1) of Article 30. The clause confers a
right on all minorities, whether they are based on religion or
language, to establish and administer educational instructions
of their choice. The right conferred by the clause is in absolute
terms and is not subject to restrictions, as in the case of rights
conferred by Article 19 of the Constitution. The right of the
minorities to administer educational institutions does not,
however, prevent the making of reasonable regulations in
respect of those institutions. The regulations have necessarily
to be made in the interest of the institution as a minority
educational institution. They have to be so designed as to
make it an effective vehicle for imparting education. The right
to administer educational institutions can plainly not include
the right to maladminister. Regulations can be made to
prevent the housing of an educational institution in unhealthy
surroundings as also to prevent the setting up or continuation
of an educational institution without qualified teachers. The
State can prescribe regulations to ensure the excellence of the
institution. Prescription of standards for educational
institutions does not militate against the right of the minority
to administer the institutions. Regulations made in the true
interests of efficiency of instruction, discipline, health,
sanitation, morality, public order, and the like may
undoubtedly be imposed. Such regulations are not restrictions
on the substance of the right, which is guaranteed: they
secure the proper functioning of the institution, in matters
educational [see observations of Shah, J. in Rev. Sidhajbhai
Sabhai (supra), [(1963 3 SCR 837] p. 850]. Further, as
observed by Hidyatullah, C.J. in the case of Very Rev. Mother
Provincial (supra) [(1971) 1 SCR 734], the standards concern
the body politic and are dictated by considerations of the
advancement of the country and its people. Therefore, if
universities establish syllabi for examinations, they must be
followed, subject, however, to special subjects which the
institutions may seek to teach, and to a certain extent, the
State may also regulate the conditions of employment of
teachers and the health and hygiene of students. Such
regulations do not bear directly upon management as such,
although they may indirectly affect it. Yet the right of the State
to regulate education, educational standards, and allied
matters cannot be denied. The minority institutions cannot be
allowed to fall below the standards of excellence expected of
27
educational institutions, or under the guise of exclusive right
of management, to decline to follow the general pattern. While
the management must be left to them, they may be compelled
to keep in step with others.
92. A regulation which is designed to prevent
maladministration of an educational institution cannot be said
to offend Clause (1) of Article 30. At the same time, it has to be
ensured that under the power of making regulations, nothing
is done as would detract from the character of the institution
as a minority educational institution or which would impinge
upon the rights of the minorities to establish and administer
educational institutions of their choice. The right conferred by
Article 30(1) is intended to be real and effective and not a mere
pious and abstract sentiment; it is a promise of reality and not
a teasing illusion. Such a right cannot be allowed to be
whittled down by any measure masquerading as a regulation.
As observed by this Court in the case of Rev. Sidhajbhai
Sabhai (supra) [(1963 3 SCR 837], regulations which may
lawfully be imposed either by legislative or executive action as
a condition of receiving grant or of recognition must be
directed to making the institution while retaining its character
as minority institution effective as an educational institution.
Such regulation must satisfy a dual test — the test of
reasonableness, and the test that it is regulative of the
educational character of the institution and is conducive to
making the institution an effective vehicle of education for the
minority community or other persons who resort to it.
94. If a request is made for the affiliation or recognition of an
educational institution, it is implicit in the request that the
educational institution would abide by the regulations which
are made by the authority granting affiliation or recognition.
The said authority can always prescribe regulations and insist
that they should be complied with before it would grant
affiliation or recognition to an educational institution. To deny
the power of making regulations to the authority concerned
would result in robbing the concept of affiliation or recognition
of its real essence. No institution can claim affiliation or
recognition until it conforms to a certain standard. The fact
that the institution is of the prescribed standard indeed
inheres in the very concept of affiliation or recognition. It is,
therefore, permissible for the authority concerned to prescribe
regulations which must be complied with before an institution
can seek and retain affiliation and recognition. Question then
arises whether there is any limitation on the prescription of
regulations for minority educational institutions. So far as this
aspect is concerned, the authority prescribing the regulations
must bear in mind that the Constitution has guaranteed a
fundamental right to the minorities for establishing and
administering their educational institutions. Regulations made
28
by the authority concerned should not impinge upon that
right. Balance has, therefore, to be kept between the two
objectives, that of ensuring the standard of excellence of the
institution and that of preserving the right of the minorities to
establish and administer their educational institutions.
Regulations which embrace and reconcile the two objectives
can be considered to be reasonable.”
(emphasis supplied)
The Court held that it is permissible for the State to prescribe
qualifications for teachers. It observed:
“176. Recognition or affiliation is granted on the basis of the
excellence of an educational institution, namely, that it has
reached the educational standard set up by the university.
Recognition or affiliation is sought for the purpose of enabling
the students in an educational institution to sit for an
examination to be conducted by the university and to obtain a
degree conferred by the university. For that purpose, the
students should have to be coached in such a manner so as to
attain the standard of education prescribed by the university.
Recognition or affiliation creates an interest in the university
to ensure that the educational institution is maintained for the
purpose intended and any regulation which will subserve or
advance that purpose will be reasonable and no educational
institution established and administered by a religious or
linguistic minority can claim recognition or affiliation without
submitting to those regulations. That is the price of recognition
or affiliation: but this does not mean that it should submit to a
regulation stipulating for surrender of a right or freedom
guaranteed by the Constitution, which is unrelated to the
purpose of recognition or affiliation. In other words,
recognition or affiliation is a facility which the university
grants to an educational institution, for the purpose of
enabling the students there to sit for an examination to be
conducted by the university in the prescribed subjects and to
obtain the degree conferred by the university, and therefore, it
stands to reason to hold that no regulation which is unrelated
to the purpose can be imposed. If besides recognition or
affiliation, an educational institution conducted by a religious
minority is granted aid, further regulations for ensuring that
the aid is utilized for the purpose for which it is granted will be
permissible. The heart of the matter is that no educational
institution established by a religious or linguistic minority can
claim total immunity from regulations by the legislature or the
university if it wants affiliation or recognition, but the
character of the permissible regulations must depend upon
their purpose. As we said, such regulations will be permissible
if they are relevant to the purpose of securing or promoting the
29
object of recognition or affiliation. There will be borderline
cases where it is difficult to decide whether a regulation really
subserves the purpose of recognition or affiliation. But that
does not affect the question of principle. In every case, when
the reasonableness of a regulation comes up for consideration
before the Court, the question to be asked and answered is
whether the regulation is calculated to subserve or will in
effect subserve the purpose of recognition or affiliation,
namely, the excellence of the institution as a vehicle for
general secular education to the minority community and to
other persons who resort to it. The question whether a
regulation is in the general interest of the public has no
relevance if it does not advance the excellence of the
institution as a vehicle for general secular education as,
exhypothesi, the only permissible regulations are those which
secure the effectiveness of the purpose of the facility, namely,
the excellence of the educational institutions in respect of their
educational standards. This is the reason why this Court has
time and again said that the question whether a particular
regulation is calculated to advance the general public interest
is of no consequence if it is not conducive to the interests of
the minority community and those persons who resort to it.
197. On the second question, I have nothing significant to add
to what has fallen from My Lord the Chief Justice. I am in
entire agreement with the view that, although, Articles 29 and
30 may supplement each other so far as certain rights of
minorities are concerned, yet, Article 29 of the Constitution
does not, in any way, impose a limit on the kind or character
of education which a minority may choose to impart through
its Institution to the children of its own members or to those of
others who may choose to send their children to its schools. In
other words, it has a right to impart a general secular
education. I would, however, like to point out that, as rights
and duties are correlative, it follows, from the extent of this
wider right of a minority under Article 30(1) to impart even
general or nondenominational secular education to those who
may not follow its culture or subscribe to its beliefs, that,
when a minority Institution decides to enter this wider
educational sphere of national education, it, by reason of this
free choice itself, could be deemed to opt to adhere to the
needs of the general pattern of such education in the country,
at least whenever that choice is made in accordance with
statutory provisions. Its choice to impart an education
intended to give a secular orientation or character to its
education necessarily entails its assent to the imperative needs
of the choice made by the State about the kind of “secular”
education which promotes national integration or the elevating
objectives set out in the preamble to our Constitution, and the
best way of giving it. If it is part of a minority's rights to make
such a choice, it should also be part of its obligations, which
necessarily follow from the choice to adhere to the general
30
pattern. The logical basis of such a choice is that the
particular minority Institution, which chooses to impart such
general secular education, prefers that higher range of freedom
where, according to the poet Rabindranath Tagore, "the narrow
domestic walls" which constitute barriers between various
sections of the nation will crumble and fall. It may refuse to
accept the choice made by the State of the kind of secular
education the State wants or of the way in which it should be
given. But, in that event, should it not be prepared to forego
the benefits of recognition by the State? The State is bound to
permit and protect the choice of the minority Institution,
whatever that might be. But, can it be compelled to give it a
treatment different from that given to other Institutions
making such a choice?
221. Evidently, what was meant was that the right to exclusive
management of the institution is separable from the right to
determine the character of education and its standards. This
may explain why "standards" of education were spoken as "not
part of management" at all. It meant that the right to manage,
having been conferred in absolute terms, could not be
interfered with at all although the object of that management
could be determined by a general pattern to be laid down by
the State, which could prescribe the syllabi and standards of
education. Speaking for myself, I find it very difficult to
separate the objects and standards of teaching from a right to
determine who should teach and what their qualifications
should be. Moreover, if the “standards of education” are not
part of management, it is difficult to see how they are
exceptions to the principle of freedom of management from
control. Again, if what is aimed at directly is to be
distinguished from an indirect effect of it, the security of
tenure of teachers and provisions intended to ensure fair and
equitable treatment for them by the management of an
institution would also not be directly aimed at interference
with its management. They could more properly be viewed as
designed to improve and ensure the excellence of teachers
available at the institution, and, therefore, to raise the general
standard of education. I think that it is enough for us to
distinguish this case on the ground that the provisions to be
interpreted by us are different, although, speaking for myself, I
feel bound to say, with great respect, that I am unable to
accept every proposition found stated there as correct. In that
case, the provisions of the Kerala University Act 9 of 1969,
considered there were inescapable for the minority institutions
which claimed the right to be free from their operation. As I
have already observed, in the case before us, Section 38B of
the Act provides the petitioning College before us with a
practically certain mode of escape from the compulsiveness of
provisions other than Sections 5, 40, and 41 of the Act if
claims made on its behalf are correct.
31
232. Even if Article 30(1) of the Constitution is held to confer
absolute and unfettered rights of management upon minority
institutions, subject only to absolutely minimal and negative
controls in the interests of health and law and order, it could
not be meant to exclude a greater degree of regulation and
control when a minority institution enters the wider sphere of
general secular and nondenominational education, largely
employs teachers who are not members of the particular
minority concerned, and when it derives large parts of its
income from the fees paid by those who are not members of
the particular minority in question. Such greater degree of
control could be justified by the need to secure the interests of
those who are affected by the management of the minority
institution and the education it imparts but who are not
members of the minority in management. In other words, the
degree of reasonably permissible control must vary from
situation to situation. For the reasons already given above, I
think that, apart from Sections 5, 40 and 41 of the Act, which
directly and unreasonably impinge upon the rights of the
petitioning minority managed college, protected by Article 30(1)
of the Constitution, I do not think that the other provisions
have that effect. On the situation under consideration before
us, the minority institution affected by the enactment has,
upon the claims put forward on its behalf, a means of escape
from the impugned provisions other than Sections 5, 40 and
41 of the Act by resorting to Section 38B of the Act.”
(emphasis supplied)
23.In The Gandhi Faizeam College, Shahjahanpur v. University of
Agra and Anr., (1975) 2 SCC 283, the Court considered whether
statute framed by University of Agra infringed fundamental rights of
the minority community and observed thus:
“16. The discussion throws us back to a closer study of
Statute 14A to see if it cuts into the flesh of the management’s
right or merely tones up its health and habits. The two
requirements the University asks for are that the managing
body (whatever its name) must take in (a) the Principal of the
College; (b) its seniormost teacher. Is this desideratum
dismissible as biting into the autonomy of management or
tenable as ensuring the excellence of the institution without
injuring the essence of the right? On a careful reflection and
conscious of the constitutional dilemma, we are inclined to the
view that this case falls on the valid side of the delicate line.
Regulation which restricts is bad, but regulation which
facilitates is good. Where does this fine distinction lie? No rigid
formula is possible, but a flexible test is feasible. Where the
32
object and effect is to improve the tone and temper of the
administration without forcing on it a stranger, however
superb his virtues be, where the directive is not to restructure
the governing body but to better its performance by a marginal
catalytic induction, where no external authority's fiat or
approval or outside nominee is made compulsory to validate
the Management Board but inclusion of an internal key
functionary appointed by the autonomous management alone
is asked for, the provision is salutary and saved, being not a
diktat eroding the freedom of the freedom."
(emphasis supplied)
The majority negated the challenge. It was held that regulation
which restricts is bad, but provision which facilitates is good.
24.In Frank Anthony Public School Employees' Association v. Union
of India and others, (1986) 4 SCC 707, question arose whether
teachers and other employees working in an unaided school were
entitled to same payscale, allowances, and benefits. The Court
allowed the petition and opined thus:
“16. The excellence of the instruction provided by an
institution would depend directly on the excellence of the
teaching staff, and in turn, that would depend on the quality
and the contentment of the teachers. Conditions of service
pertaining to minimum qualifications of teachers, their
salaries, allowances and other conditions of service which
ensure security, contentment and decent living standards to
teachers and which will consequently enable them to render
better service to the institution and the pupils cannot surely
be said to be violative of the fundamental right guaranteed by
Article 30(1) of the Constitution. The management of a
minority Educational Institution cannot be permitted under
the guise of the fundamental right guaranteed by Article 30(1)
of the Constitution, to oppress or exploit its employees any
more than any other private employee. Oppression or
exploitation of the teaching staff of an educational institution
is bound to lead, inevitably, to discontent and deterioration of
the standard of instruction imparted in the institution
affecting adversely the object of making the institution an
effective vehicle of education for the minority community or
other persons who resort to it. The management of minority
institution cannot complain of invasion of the fundamental
33
right to administer the institution when it denies the members
of its staff the opportunity to achieve the very object of Article
30(1) which is to make the institution an effective vehicle of
education.”
(emphasis supplied)
25.In Bihar State Madarasa Education Board, Patna v. Madarasa
Hanfia Arabic College, Jamalia and others, (1990) 1 SCC 428, the
Court held that minorities have the right to establish and administer
educational institution of their own choice. Still, they have no right to
maladminister, and the State has the power to regulate the
management and administration of such institutions in the interest of
educational need and discipline of the institution. The Court held
thus:
“6. The question which arises for consideration is whether
Section 7(2)(n) which confers power on the Board to dissolve
the Managing Committee of an aided and recognised Madarasa
institution violates the minorities constitutional right to
administer its educational institution according to their choice.
This Court has all along held that though the minorities have
right to establish and administer educational institution of
their own choice but they have no right to maladminister and
the State has power to regulate management and
administration of such institutions in the interest of
educational need and discipline of the institution. Such
regulation may have indirect effect on the absolute right of
minorities but that would not violate Article 30(1) of the
Constitution as it is the duty of the State to ensure efficiency
in educational institutions. The State has, however, no power
to completely take over the management of a minority
institution. Under the guise of regulating the educational
standards to secure efficiency in institution, the State is not
entitled to frame rules or regulations compelling the
management to surrender its right of administration. In State
of Kerala v. Very Rev. Mother Provincial, (1970) 2 SCC 417,
Section 63(1) of the Kerala University Act, 1969 which
conferred power on the government to take over the
management of a minority institution on its default in carrying
out the directions of the State Government was declared ultra
34
vires on the ground that the provisions interfered with the
constitutional right of a minority to administer its institution.
Minority institutions cannot be allowed to fall below the
standard of excellence on the pretext of their exclusive right of
management but at the same time their constitutional right to
administer their institutions cannot be completely taken away
by superseding or dissolving Managing Committee or by
appointing ad hoc committees in place thereof. In the instant
case Section 7(2)(n) is clearly violative of constitutional right of
minorities under Article 30(1) of the Constitution insofar as it
provides for dissolution of Managing Committee of a Madarasa.
We agree with the view taken by the High Court.”
(emphasis supplied)
26.In St. Stephen's College v. University of Delhi, (1992) 1 SCC 558,
concerning admission process adopted by aided minority institutions,
various questions were raised thus:
“41. It was contended that St. Stephen’s College after being
affiliated to the Delhi University has lost its minority
character. The argument was based on some of the provisions
in the Delhi University Act and the Ordinances made
thereunder. It was said that the students are admitted to the
University and not to the College as such. But we find no
substance in the contention. In the first place, it may be stated
that the State or any instrumentality of the State cannot
deprive the character of the institution, founded by a minority
community by compulsory affiliation since Article 30(1) is a
special right to minorities to establish educational institutions
of their choice. The minority institution has a distinct identity
and the right to administer with continuance of such identity
cannot be denied by coercive action. Any such coercive action
would be void being contrary to the constitutional guarantee.
The right to administer is the right to conduct and manage the
affairs of the institution. This right is exercised by a body of
persons in whom the founders have faith and confidence. Such
a management body of the institution cannot be displaced or
reorganised if the right is to be recognised and maintained.
Reasonable regulations however, are permissible but
regulations should be of regulatory nature and not of
abridgment of the right guaranteed under Article 30(1).
60. The right to select students for admission is a part of
administration. It is indeed an important facet of
administration. This power also could be regulated but the
regulation must be reasonable just like any other regulation. It
should be conducive to the welfare of the minority institution
35
or for the betterment of those who resort to it. The Bombay
Government order which prevented the schools using English
as the medium of instruction from admitting students who
have a mother tongue other than English was held to be
invalid since it restricted the admission pattern of the schools
[State of Bombay v. Bombay Education Society, (1955) 1 SCR
568]. The Gujarat Government direction to the minority run
college to reserve 80 per cent of seats for government selected
candidates with a threat to withdraw the grantinaid and
recognition was struck down as infringing the fundamental
right guaranteed to minorities under Article 30(1) of the
Constitution [Sidhajbhai Sabhai v. State of Bombay, (1963) 3
SCR 837]. In Rt. Rev. Magr. Mark Netto v. State of Kerala,
(1979) 1 SCC 23, the denial of permission to the management
of a minority school to admit girl students was held to be bad.
The Regional Deputy Director in that case refused to give
sanction for admission of girl students on two grounds: (i) that
the school was not opened as a mixed school and that the
school has been run purely as a boys school for 25 years; and
(ii) that there was facility for the education of girls of the
locality in a nearby girls school which was established by the
Muslims and was also a minority institution. This Court noted
that the Christian community in the locality wanted their girls
also to receive education in the school maintained specially by
their own community. They did not think it in their interest to
send their children to the Muslim girls school run by the other
minority community. The withholding of permission for
admission of girl students in the boys minority school was
violative of Article 30(1). It was also observed that the rule
sanctioning such refusal of permission crosses the barrier of
regulatory measures and comes in the region of interference
with the administration of the institution, a right which is
guaranteed to the minority under Article 30(1). The Court
restricted the operation of the rule and made it inapplicable to
the minority educational institution. In Director of School
Education, Government of T.N. v. Rev. Brother G. Arogiasamy,
AIR 1971 Mad 440, the Madras High Court had an occasion to
consider the validity of an uniform procedure prescribed by the
State Government for admission of candidates to the aided
training schools. The government directed that the candidates
should be selected by the school authorities by interviewing
every candidate eligible for admission and assessing and
awarding marks in the interview. The marks awarded to each
candidate in the interview will be added to the marks secured
by the candidate in the SSLC public examination. On the basis
of the aggregate of marks in the SSLC examination and those
obtained at the interview the selection was to be made without
any further discretion. The High Court held that the method of
selection placed serious restrictions on the freedom of the
minority institution to admit their own students. It was found
that the students of the minority community could not
compete with the students belonging to other communities.
36
The applications of students from other communities could not
be restricted under law. The result was that the students of
minority community for whose benefit the institution was
founded, had little chance of getting admission. The High
Court held that the government order prescribing the uniform
method of selection could not be applied to minority
institutions.
78. Having set the scene, we can deal with the provisions of
Articles 29(1) and 30(1) relatively quickly. Under Article 29(1)
every section of the citizens having a distinct language, script
or culture of its own has the right to conserve the same. Under
Article 29(1), the minorities — religious or linguistic — are
entitled to establish and administer educational institutions to
conserve their distinct language, script or culture. However, it
has been consistently held by the courts that the right to
establish an educational institution is not confined to
purposes of conservation of language, script or culture. The
rights in Article 30(1) are of wider amplitude. The width of
Article 30(1) cannot be cut down by the considerations on
which Article 29(1) is based. The words “of their choice” in
Article 30(1) leave vast options to the minorities in selecting
the type of educational institutions which they wish to
establish. They can establish institutions to conserve their
distinct language, script or culture or for imparting general
secular education or for both the purposes. (See: Father W.
Proost v. State of Bihar, (1969) 2 SCR 73, Ahmedabad St.
Xavier’s College v. State of Gujarat, (1974) 1 SCC 717; and
Kerala Education Bill case, 1959 SCR 995.)”
(emphasis supplied)
The decision in St. Stephen's College (supra) has been analysed
by my esteemed brother Lalit, J. in Sk. Md. Rafique v. Managing
Committee, Contai Rahamania High Madrasah and Ors., 2020 (1)
SCALE 345, thus:
“28. In St. Stephen's College vs. University of Delhi, (1992) 1
SCC 558 a Bench of five Judges of this Court had an occasion
to consider the admission process adopted by two aided
minority institutions viz. St. Stephen's College at Delhi and
Allahabad Agricultural Institute at Naini. The factual context
as summedup in the majority judgment authored by Shetty,
J., was as under:
“68. It is not in dispute that St. Stephen's College and
Allahabad Agricultural Institute are receiving grantinaid
37
from the government. St. Stephen's College gives preference
to Christian students. The Allahabad Agricultural Institute
reserves 50 per cent of the seats for Christian students. The
Christian students admitted by preference or against the
quota reserved are having less merit in the qualifying
examination than the other candidates. The other
candidates with more merit are denied admission on the
ground that they are not Christians.
69. It was argued for the University and the Students Union
that since both the institutions are receiving State aid, the
institutional preference for admission based on religion is
violative of Article 29(2) of the Constitution. The institutions
shall not prefer or deny admission to candidates on ground
of religion. For institutions, on the other hand, it was
claimed that any preference given to the religious minority
candidates in their own institutions cannot be a
discrimination falling under Article 29(2). The institutions
are established for the benefit of their community and if
they are prevented from admitting their community
candidates, the purpose of establishing the institutions
would be defeated. The minorities are entitled to admit their
candidates by preference or by reservation. They are also
entitled to admit them to the exclusion of all others and
that right flows from the right to establish and administer
educational institutions guaranteed under Article 30(1).”
28.1. The majority judgment dealt with the submissions raised
by the institution as under:
“80. Equally, it would be difficult to accept the
second submission that the minorities are entitled to
establish and administer educational institutions for their
exclusive benefit. The choice of institution provided in
Article 30(1) does not mean that the minorities could
establish educational institution for the benefit of their own
community people. Indeed, they cannot. It was pointed out
in Re, Kerala Education Bill that the minorities cannot
establish educational institution only for the benefit of their
community. If such was the aim, Article 30(1) would have
been differently worded and it would have contained the
words "for their own community". In the absence of such
words it is legally impermissible to construe the article as
conferring the right on the minorities to
establish educational institution for their own benefit.
81. Even in practice, such claims are likely to be met with
considerable hostility. It may not be conducive to have a
relatively homogeneous society. It may lead to religious
bigotry which is the bane of mankind. In the nation
building with secular character sectarian schools or
colleges, segregated faculties or universities for imparting
general secular education are undesirable and they may
38
undermine secular democracy. They would be inconsistent
with the central concept of secularism and equality
embedded in the Constitution. Every educational institution
irrespective of community to which it belongs is a 'melting
pot' in our national life. The students and teachers are the
critical ingredients. It is there they develop respect for, and
tolerance of, the cultures and beliefs of others. It is
essential therefore, that there should be proper mix of
students of different communities in all educational
institutions.”
***
28.3. The majority Judgment, then, considered the matter
from the perspective of "Rights of Minorities and Balancing
Interest" and observed:
“101. Laws carving out the rights of minorities in
Article 30(1) however, must not be arbitrary, invidious or
unjustified; they must have a reasonable relation between
the aim and the means employed. The individual rights will
necessarily have to be balanced with competing minority
interests. In Sidhajbhai case (1963) 3 SCR 837 the
government order directing the minority run college to
reserve 80 per cent of seats for government nominees and
permitting only 20 per cent of seats for the management
with a threat to withhold the grantinaid
and recognition was struck down by the Court as infringing
the fundamental freedom guaranteed by Article 30(1).
Attention may also be drawn to Article 337 of the
Constitution which provided a special concession to Anglo
Indian community for ten years from the commencement of
the Constitution. Unlike Article 30(2) it conferred a positive
right on the AngloIndian community to get grants from the
government for their educational institutions, but subject
to the condition that at least 40 per cent of annual
admission were made available to members of other
communities.
102. In the light of all these principles and factors, and in
view of the importance which the Constitution attaches to
protective measures to minorities under Article 30(1), the
minority aided educational institutions are entitled to prefer
their community candidates to maintain the minority
character of the institutions subject of course to conformity
with the University standard. The State may regulate the
intake in this category with due regard to the need of the
community in the area which the institution is intended to
serve. But in no case such intake shall exceed 50 per cent
of the annual admission. The minority institutions shall
make available at least 50 per cent of the annual admission
to members of communities other than the minority
39
community. The admission of other community candidates
shall be done purely on the basis of merit.”
28.4. It was also observed that regulations which serve the
interest of students and teachers and preserve the uniformity
in standards of education amongst the affiliated institutions
could validly be made. The relevant discussion in para 59 was
as under:
“59. The need for a detailed study on this aspect is indeed
not necessary. The right to minorities whether religious or
linguistic, to administer educational institutions and the
power of the State to regulate academic matters and
management is now fairly well settled. The right to
administer does not include the right to maladminister. The
State being the controlling authority has right and duty
to regulate all academic matters. Regulations which will
serve the interests of students and teachers, and to
preserve the uniformity in standards of education among
the affiliated institutions could be made. The minority
institutions cannot claim immunity against such general
pattern and standard or against general laws such as laws
relating to law and order, health, hygiene, labour relations,
social welfare legislations, contracts, torts etc. which are
applicable to all communities. So long as the basic right of
minorities to manage educational institution is not taken
away, the State is competent to make regulatory legislation.
Regulations, however, shall not have the effect of depriving
the right of minorities to educate their children in their own
institution. That is a privilege which is implied in the right
conferred by Article 30(1).”
28.5. The dissenting opinion of Kasliwal, J. quoted a passage
from the Constituent Assembly Debates (CAD) touching upon
the matter in issue as under:
“137. These were Articles 23(1) on the one hand and 23(3)(a)
and 23(3)(b) on the other hand in the Draft Constitution.
Firstly, Dr. B.R. Ambedkar said in relation
to draft Article 23(2) corresponding to the present
Article 28 of the Constitution that even in relation to
Articles 30 and 29 the State was completely free to give or
not to give aid to the educational institutions of the
religious or linguistic minorities. He said:
“Now, with regard to the second clause I think it has
not been sufficiently well understood. We have tried
to reconcile the claim of a community which has
started educational institutions for the advancement
of its own children either in education or in cultural
matters, to permit to give religious instruction in
such institutions; notwithstanding the fact that it
receives certain aid from the State. The State, of
course, is free to give aid, is free not to give aid; the
only limitation we have placed is this, that the State
40
shall not debar the institution from claiming aid
under its grantinaid code merely on the ground
that it is run and maintained by a community and
not maintained by a public body. We have there
provided also a further qualification, that while it is
free to give religious instruction in the institution and
the grant made by the State shall not be a bar to the
giving of such instruction, it shall not give
instruction to, or make it compulsory upon, the
children belonging to other communities unless and
until they obtain the consent of the parents of
these children. That, I think, is a salutary provision.
It performs two functions...
Shri H.V. Kamath: On a point of clarification what about
institutions and schools run by a community or a minority for
its own pupils — not a school where all communities are
mixed but a school run by the community for its own pupils?
The Hon'ble Dr. B.R. Ambedkar: If my friend, Mr. Kamath will
read the other article he will see that once an institution,
whether maintained by the community or not, gets a grant, the
condition is that it shall keep the school open to all
communities. That provision he has not read.”
138. He reaffirmed the freedom of the State to give or not to
give aid to these schools when directly referring
to draft Article 23 which is the precursor of the present
Articles 29 and 30 as follows (VII CAD 923):
“I think another thing which has to be borne in reading
Article 23 is that it does not impose any obligation or
burden upon the State. It does not say that, when for
instance the Madras people come to Bombay, the Bombay
Government shall be required by law to finance any project
of giving education either in Tamil language or in Andhra
language or any other language. There is no burden cast
upon the State. The only limitation that is imposed by
Article 23 is that if there is a cultural minority which wants
to preserve its language, its script and its culture, the State
shall not by law impose upon it any other culture which
may be either local or otherwise.”
And, went on to observe that once an institution was receiving
aid, "it must abide by the rigor of Article 29(2) in the matter of
admission of students in the college" and "as already held by
me, St. Stephen's College and Allahabad Agricultural Institute
are not entitled to claim any preferential right or reservation in
favour of students of Christian community as they are getting
grantinaid and as such I do not consider it necessary to
labour any more on the question of deciding as to what
percentage can be considered as reasonable.”
(emphasis supplied)
41
The Court held that the choice of institution does not mean that
the minorities could establish educational institution for the benefit of
their own community people. In Re The Kerala Education Bill (supra),
it was considered and observed that the minorities cannot establish
educational institution only for the benefit of their community. Every
educational institution, irrespective of community to which it belongs,
is a 'melting pot' in our national life and that there should be mixing
up of students of different communities in all educational institutions.
The intake for the community cannot exceed 50% of the annual
admission, which is to be provided to other than the minority
community. The admission should be made purely on the basis of
merit.
27.In T.M.A. Pai Foundation (supra), decided by Bench of 11 Judges
of the Court, on consideration of the rights under Article 30 of the
Constitution of India, held thus:
“3. The 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 five 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. These cases were
then placed before a Bench of seven Judges. The questions
framed were recast and on 621997, the Court directed that
the matter be placed before a Bench of at least eleven Judges,
as it was felt that in view of the Fortysecond Amendment to
the Constitution, whereby "education" had been included in
42
Entry 25 of List III of Seventh Schedule, the question of who
would be regarded as a "minority" was required to be
considered because the earlier caselaw related to the pre
amendment era, when education was only in the State List.
When the cases came up for hearing before an elevenJudge
Bench, during the course of hearing on 1931997, 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 — Kerala
Education Bill, 1957, In Re, AIR 1958 SC 956 and
Ahmedabad St. Xavier's College Society v. State of
Gujarat, (1974) 1 SCC 717 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.””
38. The scheme in Unni Krishnan case, (1993) 1 SCC 645 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 case it has
been observed by Jeevan Reddy, J., at p. 749, para 194, as
follows:
“194. The hard reality that emerges is that private
educational institutions are a necessity in the presentday
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.”
40. Any system of student selection would be unreasonable if
it deprives the private unaided institution of the right of
rational selection, which it devised for itself, subject to the
minimum qualification that may be prescribed and to some
system of computing the equivalence between different kinds
of qualifications, like a common entrance test. Such a system
43
of selection can involve both written and oral tests for
selection, based on principle of fairness.
45. In view of the discussion hereinabove, we hold that the
decision in Unni Krishnan case, (1993) 1 SCC 645 insofar as it
framed the scheme relating to the grant of admission and the
fixing of the fee, was not correct, and to that extent, the said
decision and the consequent directions given to UGC, AICTE,
the Medical Council of India, the Central and State
Governments etc. are overruled.
50. The right to establish and administer broadly comprises
the following rights:
(a) to admit students;
(b) to set up a reasonable fee structure;
(c) to constitute a governing body;
(d) to appoint staff (teaching and nonteaching); and
(e) to take action if there is dereliction of duty on the part of
any employees.
53. With regard to the core components of the rights under
Articles 19 and 26(a), it must be held that while the State has
the right to prescribe qualifications necessary for admission,
private unaided colleges have the right to admit students of
their choice, subject to an objective and rational procedure of
selection and the compliance with conditions, if any, requiring
admission of a small percentage of students belonging to
weaker sections of the society by granting them freeships or
scholarships, if not granted by the Government. Furthermore,
in setting up a reasonable fee structure, the element of
profiteering is not as yet accepted in Indian conditions. The fee
structure must take into consideration the need to generate
funds to be utilized for the betterment and growth of the
educational institution, the betterment of education in that
institution and to provide facilities necessary for the benefit of
the students. In any event, a private institution will have the
right to constitute its own governing body, for which
qualifications may be prescribed by the State or the university
concerned. It will, however, be objectionable if the State
retains the power to nominate specific individuals on
governing bodies. Nomination by the State, which could be on
a political basis, will be an inhibiting factor for private
enterprise to embark upon the occupation of establishing and
administering educational institutions. For the same reasons,
nomination of teachers either directly by the department or
through a service commission will be an unreasonable inroad
and an unreasonable restriction on the autonomy of the
private unaided educational institution.
44
68. It 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 forego 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 meritbased 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 nonprofessional but
unaided educational institutions viz. graduation and
postgraduation nonprofessional colleges or institutes.
71. While giving aid to professional institutions, it would be
permissible for the authority giving aid to prescribe by 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. The merit may
be determined either through a common entrance test
conducted by the university or the Government 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. In the
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.
90. In the exercise of this right to conserve the language,
script or culture, that section of the society can set
up educational institutions. The right to establish and
maintain educational institutions of its choice is a necessary
concomitant to the right conferred by Article 30. The right
under Article 30 is not absolute. Article 29(2) provides that,
where any educational institution is maintained by the State
or receives aid out of State funds, no citizen shall be denied
45
admission on the grounds only of religion, race, caste,
language or any of them. The use of the expression "any
educational institution" in Article 29(2) would (sic not) refer to
any educational institution established by anyone, but which
is maintained by the State or receives aid out of State funds.
In other words, on a plain reading, Statemaintained or aided
educational institutions, whether established by the
Government or the majority or a minority community cannot
deny admission to a citizen on the grounds only of religion,
race, caste or language.
93. Can Article 30(1) be so read as to mean that it contains
an absolute right of the minorities, whether based on religion
or language, to establish and administer educational
institutions in any manner they desire, and without being
obliged to comply with the provisions of any law? Does
Article 30(1) give the religious or linguistic minorities a right to
establish an educational institution that propagates religious
or racial bigotry or ill will amongst the people? Can the right
under Article 30(1) be so exercised that it is opposed to public
morality or health? In the exercise of its right, would the
minority while establishing educational institutions not
be bound by town planning rules and regulations? Can
they construct and maintain buildings in any manner they
desire without complying with the provisions of the building
byelaws or health regulations?
105. In Rev. Sidhajbhai Sabhai v. State of Bombay, (1963) 3
SCR 837, this Court had to consider the validity of an order
issued by the Government of Bombay whereby from the
academic year 195556, 80% of the seats in the training
colleges for teachers in nongovernment training colleges were
to be reserved for the teachers nominated by the Government.
The petitioners, who belonged to the minority community,
were, inter alia, running a training college for teachers, as also
primary schools. The said primary schools and college were
conducted for the benefit of the religious denomination of the
United Church of Northern India and Indian Christians
generally, though admission was not denied to students
belonging to other communities. The petitioners challenged the
government order requiring 80% of the seats to be filled by
nominees of the Government, inter alia, on the ground that the
petitioners were members of a religious denomination and that
they constituted a religious minority, and that the educational
institutions had been established primarily for the benefit of
the Christian community. It was the case of the petitioners
that the decision of the Government violated their fundamental
rights guaranteed by Articles 30(1), 26(a), (b), (c) and (d),
and 19(1)(f) and (g). While interpreting Article 30, it was
observed by this Court at SCR pp. 84950 as under:
46
“All minorities, linguistic or religious have by
Article 30(1) an absolute right to establish and
administer educational institutions of their choice;
and any law or executive direction which seeks to
infringe the substance of that right under
Article 30(1) would to that extent be void. This,
however, is not to say that it is not open to the State
to impose regulations upon the exercise of this right.
The fundamental freedom is to establish and to
administer educational institutions: it is a right to
establish and administer what are in truth
educational institutions, institutions which cater to
the educational needs of the citizens, or sections
thereof. Regulation made in the true interests of
efficiency of instruction, discipline, health,
sanitation, morality, public order and the like may
undoubtedly be imposed. Such Regulations are not
restrictions on the substance of the right which is
guaranteed: they secure the proper functioning of the
institution, in matters educational.”
106. While coming to the conclusion that the right of the
private training colleges to admit students of their choice
was severely restricted, this Court referred to the opinion
in Kerala Education Bill, 1957 case, 1959 SCR 995, but
distinguished it by observing that the Court did not, in that
case, lay down any test of reasonableness of the regulation.
No general principle on which the reasonableness of a
regulation may be tested was sought to be laid down
in Kerala Education Bill, 1957 case, 1959 SCR 995 and,
therefore, it was held in Sidhajbhai Sabhai case, (1963) 3
SCR 837 that the opinion in that case was not an authority
for the proposition that all regulative measures, which were
not destructive or annihilative of the character of the
institution established by the minority, provided the
regulations were in the national or public interest, were
valid. In this connection it was further held at SCR pp. 856
57, as follows:
“The right established by Article 30(1) is
a fundamental right declared in terms absolute.
Unlike the fundamental freedoms guaranteed by
Article 19, it is not subject to reasonable restrictions.
It is intended to be a real right for the protection of
the minorities in the matter of setting up of
educational institutions of their own choice. The
right is intended to be effective and is not to be
whittled down by socalled regulative measures
conceived in the interest not of the minority
educational institution, but of the public or the
nation as a whole. If every order which while
maintaining the formal character of a minority
institution destroys the power of administration is
47
held justifiable because it is in the public or national
interest, though not in its interest as an educational
institution, the right guaranteed by Article 30(1) will
be but a 'teasing illusion', a promise of unreality.
Regulations which may lawfully be imposed either by
legislative or executive action as a condition of
receiving grant or of recognition must be directed to
making the institution while retaining its character
as a minority institution effective as an educational
institution. Such regulation must satisfy a dual test
the test of reasonableness, and the test that it is
regulative of the educational character of the
institution and is conducive to making the institution
an effective vehicle of education for the minority
community or other persons who resort to it.”
107. The aforesaid decision does indicate that the right
under Article 30(1) is not so absolute as to prevent the
Government from making any regulation whatsoever. As
already noted hereinabove, in Sidhajbhai Sabhai case,
(1963) 3 SCR 837, it was laid down that regulations made
in the true interests of efficiency of instruction, discipline,
health, sanitation, morality and public order could be
imposed. If this is so, it is difficult to appreciate how the
Government can be prevented from framing regulations that
are in the national interest, as it seems to be indicated in
the passage quoted hereinabove. Any regulation framed in
the national interest must necessarily apply to all
educational institutions, whether run by the majority or the
minority. Such a limitation must necessarily be read into
Article 30. The right under Article 30(1) cannot be such as
to override the national interest or to prevent the
Government from framing regulations in that behalf. It is, of
course, true that government regulations cannot destroy
the minority character of the institution or make the
right to establish and administer a mere illusion; but the
right under Article 30 is not so absolute as to be above the
law. It will further be seen that in Sidhajbhai Sabhai case,
(1963) 3 SCR 837, no reference was made to Article 29(2) of
the Constitution. This decision, therefore, cannot be an
authority for the proposition canvassed before us.
119. In a concurrent judgment, while noting (at SCC p.
770, para 73) that "clause (2) of Article 29 forbids the denial
of admission to citizens 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", Khanna, J. then examined Article 30, and observed
at SCR p. 222, as follows: (SCC p. 770, para 74)
“74. Clause (1) of Article 30 gives right to all
minorities, whether based on religion or language, to
establish and administer educational institutions of
48
their choice. Analysing that clause it would follow
that the right which has been conferred by the clause
is on two types of minorities. Those minorities may
be based either on religion or on language. The right
conferred upon the said minorities is to establish and
administer educational institutions of their choice.
The word 'establish' indicates the right to bring into
existence, while the right to administer an institution
means the right to effectively manage and conduct
the affairs of the institution. Administration connotes
management of the affairs of the institution. The
management must be free of control so that the
founders or their nominees can mould the institution
as they think fit and in accordance with their ideas of
how the interest of the community in general and the
institution in particular will be best served. The
words 'of their choice' qualify the educational
institutions and show that the educational
institutions established and administered by the
minorities need not be of some particular class; the
minorities have the right and freedom to
establish and administer such educational
institutions as they choose. Clause (2) of
Article 30 prevents the State from making
discrimination in the matter of grant of aid to any
educational institution on the ground that the
institution is under the management of a minority,
whether based on religion or language.”
120. Explaining the rationale behind Article 30, it was
observed at SCR p. 224, as follows: (SCC p. 772, para 77)
“77. The idea of giving some special rights to the
minorities is not to have a kind of a privileged or
pampered section of the population but to give to the
minorities a sense of security and a feeling of
confidence. The great leaders of India since time
immemorial had preached the doctrine of tolerance
and catholicity of outlook. Those noble ideas were
enshrined in the Constitution. Special rights for
minorities were designed not to create inequality.
Their real effect was to bring about equality by
ensuring the preservation of the minority institutions
and by guaranteeing to the minorities autonomy in
the matter of the administration of those institutions.
The differential treatment for the minorities by giving
them special rights is intended to bring about an
equilibrium, so that the ideal of equality may not
be reduced to a mere abstract idea but should
become a living reality and result in true, genuine
equality, an equality not merely in theory but also in
fact.”
49
121. While advocating that provisions of the Constitution
should be construed according to the liberal, generous and
sympathetic approach, and after considering the principles
which could be discerned by him from the earlier decisions
of this Court, Khanna, J., observed at SCR p. 234, as
follows: (SCC p. 781, para 89)
“The minorities are as much children of the soil as
the majority and the approach has been to ensure
that nothing should be done as might deprive the
minorities of a sense of belonging, of a feeling of
security, of a consciousness of equality and of the
awareness that the conservation of their religion,
culture, language and script as also the protection of
their educational institutions is a fundamental
right enshrined in the Constitution. The same
generous, liberal and sympathetic approach should
weigh with the courts in
construing Articles 29 and 30 as marked the
deliberations of the Constitutionmakers in drafting
those articles and making them part of the
fundamental rights. The safeguarding of the interest
of the minorities amongst sections of population is as
important as the protection of the interest amongst
individuals of persons who are below the age of
majority or are otherwise suffering from some kind
of infirmity. The Constitution and the laws made by
civilized nations, therefore, generally
contain provisions for the protection of those
interests. It can, indeed, be said to be an index of the
level of civilization and catholicity of a nation as to
how far their minorities feel secure and are
not subject to any discrimination or suppression.”
122. The learned Judge then observed that the right of the
minorities to administer educational institutions did not
prevent the making of reasonable regulations in respect of
these institutions. Recognizing that the right to
administer educational institutions could not include the
right to maladminister, it was held that regulations could be
lawfully imposed, for the receiving of grants
and recognition, while permitting the institution to retain its
character as a minority institution. The regulation "must
satisfy a dual test — the test of reasonableness, and the test
that it is regulative of the educational character of the
institution and is conducive to making the institution an
effective vehicle of education for the minority community or
other persons who resort to it". (SCC p. 783, para 92) It was
permissible for the authorities to prescribe regulations,
which must be complied with, before a minority institution
could seek or retain affiliation and recognition. But it was
also stated that the regulations made by the authority
50
should not impinge upon the minority character of the
institution. Therefore, a balance has to be kept between the
two objectives — that of ensuring the standard of excellence
of the institution, and that of preserving the right of the
minorities to establish and administer their educational
institutions. Regulations that embraced and reconciled the
two objectives could be considered to be reasonable. This, in
our view, is the correct approach to the problem.
123. After referring to the earlier cases in relation to the
appointment of teachers, it was noted by Khanna, J., that
the conclusion which followed was that a law which
interfered with a minority's choice of qualified teachers, or
its disciplinary control over teachers and other members of
the staff of the institution, was void, as it was violative of
Article 30(1). While it was permissible for the State and its
educational authorities to prescribe the qualifications of
teachers, it was held that once the teachers possessing
the requisite qualifications were selected by the minorities
for their educational institutions, the State would have no
right to veto the selection of those teachers.
The selection and appointment of teachers for an
educational institution was regarded as one of the essential
ingredients under Article 30(1). The Court's attention was
drawn to the fact that in Kerala Education Bill, 1957 case,
1959 SCR 995, this Court had opined that clauses 11 and
12 made it obligatory for all aided schools to select teachers
from a panel selected from each district by the Public
Service Commission and that no teacher of an aided school
could be dismissed, removed or reduced in rank without the
previous sanction of the authorized officer. At SCR p.245,
Khanna, J., observed that in cases subsequent to the
opinion in Kerala Education Bill, 1957 case, (1959) SCR 995
this Court had held similar provisions as clause 11 and
clause 12 to be violative of Article 30(1) of the minority
institutions. He then observed as follows: (SCC p. 792, para
109).
“The opinion expressed by this Court in Re Kerala
Education Bill, 1957, 1959 SCR 995, was of an
advisory character and though great weight should
be attached to it because of its persuasive value, the
said opinion cannot override the opinion
subsequently expressed by this Court in contested
cases. It is the law declared by this Court in the
subsequent contested cases which would have a
binding effect. The words 'as at present advised' as
well as the preceding sentence indicate that the view
expressed by this Court in Re Kerala Education Bill,
1957 in this respect was hesitant and tentative and
not a final view in the matter.”
51
135. We agree with the contention of the learned Solicitor
General that the Constitution in Part III does not contain or
give any absolute right. All rights conferred in Part III of the
Constitution are subject to at least other provisions of the
said Part. It is difficult to comprehend that the framers of
the Constitution would have given such an absolute right to
the religious or linguistic minorities, which would enable
them to establish and administer educational institutions in
a manner so as to be in conflict with the other Parts of the
Constitution. We find it difficult to accept that in the
establishment and administration of educational
institutions by the religious and linguistic minorities, no
law of the land, even the Constitution, is to apply to them.
136. Decisions of this Court have held that the right to
administer does not include the right to maladminister. It
has also been held that the right to administer is not
absolute, but must be subject to reasonable regulations for
the benefit of the institutions as the vehicle of education,
consistent with national interest. General laws of the land
applicable to all persons have been held to be applicable to
the minority institutions also — for example, laws relating
to taxation, sanitation, social welfare, economic regulation,
public order and morality.
137. It follows from the aforesaid decisions that even
though the words of Article 30(1) are unqualified, this Court
has held that at least certain other laws of the land
pertaining to health, morality and standards of education
apply. The right under Article 30(1) has, therefore, not been
held to be absolute or above other provisions of the law, and
we reiterate the same. By the same analogy, there is no
reason why regulations or conditions concerning, generally,
the welfare of students and teachers should not be made
applicable in order to provide a proper academic
atmosphere, as such provisions do not in any way interfere
with the right of administration or management under
Article 30(1).
138. 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 visavis other educational
institutions. Any law or rule or regulation that would put
52
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 SCR p. 192
that: (SCC p. 743, para 9)
“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 denied 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
nonminority institutions are permitted to do.
139. 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.
144. It cannot be argued that no conditions can be imposed
while giving aid to a minority institution. Whether it is an
institution run by the majority or the minority, all
conditions that have relevance to the proper utilization of
the grantinaid by an educational institution can be
imposed. All that Article 30(2) states is that on the ground
that an institution is under the management of a minority,
whether based on religion or language, grant of aid to that
educational institution cannot be discriminated against, if
other educational institutions are entitled to receive aid.
The conditions for grant or nongrant of aid to educational
institutions have to be uniformly applied, whether it is a
majorityrun institution or a minorityrun institution. As in
the case of a majorityrun institution, the moment a
minority institution obtains a grant of aid, Article 28 of the
Constitution comes into play. When an educational
institution is maintained out of State funds, no religious
instruction can be provided therein. Article 28(1) does not
state that it applies only to educational institutions that are
not established or maintained by religious or linguistic
minorities. Furthermore, upon the receipt of aid,
the provisions of Article 28(3) would apply to all educational
institutions whether run by the minorities or the non
53
minorities. Article 28(3) is the right of a person studying in
a Staterecognized institution or in an educational
institution receiving aid from State funds, not to take part
in any religious instruction, if imparted by such institution,
without his/her consent (or his/her guardian's consent if
such a person is a minor). Just as Articles 28(1) and (3)
become applicable the moment any educational institution
takes aid, likewise, Article 29(2) would also be attracted and
become applicable to an educational institution maintained
by the State or receiving aid out of State funds. It was
strenuously contended that the right to give admission is
one of the essential ingredients of the right to
administer conferred on the religious or linguistic minority,
and that this right should not be curtailed in any manner.
It is difficult to accept this contention. If Articles 28(1) and
(3) apply to a minority institution that receives aid out of
State funds, there is nothing in the language of
Article 30 that would make the provisions of
Article 29(2) inapplicable. Like Article 28(1) and
Article 28(3), Article 29(2) refers to "any educational
institution maintained by the State or receiving aid out of
State funds". A minority institution would fall within the
ambit of Article 29(2) in the same manner in which
Article 28(1) and Article 28(3) would be applicable to an
aided minority institution. It is true that one of the rights to
administer an educational institution is to grant admission
to the students. As long as an educational institution,
whether belonging to the minority or the majority
community, does not receive aid, it would, in our opinion,
be its right and discretion to grant admission to such
students as it chooses or selects subject to what has been
clarified before. Out of the various rights that the minority
institution has in the administration of the institution,
Article 29(2) curtails the right to grant admission to a
certain extent. By virtue of Article 29(2), no citizen can be
denied admission by an aided minority institution on the
grounds only of religion, race, caste, language or any of
them. It is no doubt true that Article 29(2) does curtail one
of the powers of the minority institution, but on receiving
aid, some of the rights that an unaided minority institution
has, are also curtailed by Articles 28(1) and 28(3). A
minority educational institution has a right to
impart religious instruction — this right is taken away by
Article 28(1), if that minority institution is maintained
wholly out of State funds. Similarly on receiving aid out
of State funds or on being recognized by the State,
the absolute right of a minority institution requiring a
student to attend religious instruction is curtailed by
Article 28(3). If the curtailment of the right to administer a
minority institution on receiving aid or being wholly
maintained out of State funds as provided by Article 28 is
valid, there is no reason why Article 29(2) should not be
54
held to be applicable. There is nothing in the language of
Articles 28(1) and (3), Article 29(2) and Article 30 to suggest
that, on receiving aid, Articles 28(1) and (3) will apply, but
Article 29(2) will not. Therefore, the contention that the
institutions covered by Article 30 are outside the injunction
of Article 29(2) cannot be accepted.
151. The right of the aided minority institution to preferably
admit students of its community, when Article 29(2) was
applicable, has been clarified by this Court over a decade
ago in St. Stephen's College case, (1992) 1 SCC 558. While
upholding the procedure for admitting students, this Court
also held that aided minority educational institutions were
entitled to preferably admit their community candidates so
as to maintain the minority character of the institution, and
that the State may regulate the intake in this category with
due regard to the area that the institution was intended to
serve, but that this intake should not be more than 50% in
any case. Thus, St. Stephen's endeavoured to strike a
balance between the two articles. Though we accept
the ratio of St. Stephen's which has held the field for over a
decade, we have compelling reservations in accepting the
rigid percentage stipulated therein. As Article 29 and
Article 30 apply not only to institutions of higher education
but also to schools, a ceiling of 50% would not be proper. It
will be more appropriate that, depending upon the level of
the institution, whether it be a primary or secondary or high
school or a college, professional or otherwise, and on the
population and educational needs of the area in which the
institution is to be located, the State properly balances the
interests of all by providing for such a percentage of
students of the minority community to be admitted, so as to
adequately serve the interest of the community for which
the institution was established.
152. At the same time, the admissions to aided institutions,
whether awarded to minority or nonminority students,
cannot be at the absolute sweet will and pleasure of the
management of minority educational institutions. As the
regulations to promote academic excellence and standards
do not encroach upon the guaranteed rights Under
Article 30, the aided minority educational institutions can
be required to observe inter se merit amongst the eligible
minority applicants and passage of common entrance test
by the candidates, where there is one, with regard to
admissions in professional and nonprofessional colleges. If
there is no such test, a rational method of assessing
comparative merit has to be evolved. As regards the non
minority segment, admission may be on the basis of the
common entrance test and counselling by a State agency. In
the courses for which such a test and counselling are not in
vogue, admission can be on the basis of relevant criteria for
55
the determination of merit. It would be open to the State
authorities to insist on allocating a certain percentage of
seats to those belonging to weaker sections of society, from
amongst the nonminority seats.
Answers to eleven questions
Q. 1. ***
A. ***
Q. 2. ***
A. ***
Q. 3. (a) ***
A. ***
Q. 3. (b) To what extent can professional education be
treated as a matter coming under minorities’ rights under
Article 30?
A. 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.
Q. 4. 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?
A. Admission of students to unaided minority educational
institutions viz. schools and undergraduate colleges where
the scope for meritbased 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.
The 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.
…
Q.5. (a) Whether the minorities’s rights to establish and
administer educational institutions of their choice will
include the procedure and method of admission and
selection of students?
56
A. 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
maladministration. Even 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.
Q.5.(b) ***
A. ***
Q.5. (c) 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?
A. 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
a university or board have to be complied with, but in the
matter of daytoday management, like the appointment of
staff, teaching and nonteaching, 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 management itself.
For 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.
The 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
educational institution.
57
Regulations 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.
Fees to be charged by unaided institutions cannot be
regulated but no institution should charge capitation fee.”
(emphasis supplied)
In T.M.A. Pai Foundation (supra), the Court held that some
system of computing equivalence between different kinds of
qualifications like a common entrance test, would not be in violation of
the rights conferred. The unaided minority institutions under Article
30(1) of the Constitution of India have the right to admit students, but
the merit may be determined by common entrance test and the rights
under Article 30(1) is not absolute so as to prevent the Government
from making any regulations. The Government cannot be prevented
from framing regulations that are in national interest. However, the
safeguard is that the Government cannot discriminate any minority
institution and put them in a disadvantageous position vis
àvis to
other educational institutions and has to maintain the concept of
equality in real sense. The minority institutions must be allowed to do
what nonminority institutions are permitted. It is open to
State/concerned bodies to frame regulations with respect to affiliation
and recognition, to provide a proper academic atmosphere. While
answering question no.4, it was held that the Government or the
University can lay down the regulatory measures ensuring educational
58
standards and maintaining excellence and more so, in the matter of
admission to the professional institutions. It may not interfere with
the rights so long as the admissions to the unaided minority
institutions are on transparent basis and the merit is adequately taken
care of.
28.In Brahmo Samaj Education Society v. State of West Bengal,
(2004) 6 SCC 224, the Court opined that State can impose such
conditions as are necessary for the proper maintenance of standards
of education and to check maladministration. The decision of T.M.A.
Pai Foundation (supra) was followed in which it was observed that the
State could regulate the method of selection and appointment of
teachers after prescribing requisite qualifications for the same. In
Brahmo Samaj Education Society (supra), it was further opined that
the State could very well provide the basic qualification for teachers.
The equal standard of teachers has been maintained by the NET /
SLET.
29.This Court in P.A. Inamdar (supra) also considered the difference
between professional and nonprofessional educational institutions,
thus:
“104. Article 30(1) speaks of “educational institutions”
generally and so does Article 29(2). These articles do not draw
any distinction between an educational institution dispensing
theological education or professional or nonprofessional
59
education. However, the terrain of thought as has developed
through successive judicial pronouncements culminating in
Pai Foundation, (2002) 8 SCC 481, is that looking at the
concept of education, in the backdrop of the constitutional
provisions, professional educational institutions constitute a
class by themselves as distinguished from educational
institutions imparting nonprofessional education. It is not
necessary for us to go deep into this aspect of the issue posed
before us inasmuch as Pai Foundation, (2002) 8 SCC 481, has
clarified that merit and excellence assume special significance
in the context of professional studies. Though merit and
excellence are not anathema to nonprofessional education, yet
at that level and due to the nature of education which is more
general, the need for merit and excellence therein is not of the
degree as is called for in the context of professional education.
105. Dealing with unaided minority educational institutions,
Pai Foundation, (2002) 8 SCC 481, holds that Article 30 does
not come in the way of the State stepping in for the purpose of
securing transparency and recognition of merit in the matter of
admissions. Regulatory measures for ensuring educational
standards and maintaining excellence thereof are no anathema
to the protection conferred by Article 30(1). However, a
distinction is to be drawn between unaided minority
educational institution of the level of schools and
undergraduate colleges on the one side and institutions of
higher education, in particular, those imparting professional
education, on the other side. In the former, the scope for
meritbased selection is practically nil and hence may not call
for regulation. But in the case of the latter, transparency and
merit have to be unavoidably taken care of and cannot be
compromised. There could be regulatory measures for
ensuring educational standards and maintaining excellence
thereof. (See para 161, answer to Question 4, in Pai
Foundation, (2002) 8 SCC 481.) The source of this distinction
between two types of educational institutions referred to
hereinabove is to be found in the principle that right to
administer does not include a right to maladminister.
106. S.B. Sinha, J. has, in his separate opinion in Islamic
Academy, (2003) 6 SCC 697, described (in para 199) the
situation as a pyramidlike situation and suggested the right of
minority to be read along with the fundamental duty. Higher
the level of education, lesser are the seats and higher weighs
the consideration for merit. It will, necessarily, call for more
State intervention and lesser say for the minority.
107. Educational institutions imparting higher education i.e.
graduate level and above and in particular specialised
education such as technical or professional, constitute a
separate class. While embarking upon resolving issues of
60
constitutional significance, where the letter of the Constitution
is not clear, we have to keep in view the spirit of the
Constitution, as spelt out by its entire scheme. Education
aimed at imparting professional or technical qualifications
stands on a different footing from other educational
instruction. Apart from other provisions, Article 19(6) is a clear
indicator and so are clauses (h) and (j) of Article 51A.
Education up to the undergraduate level aims at imparting
knowledge just to enrich the mind and shape the personality
of a student. Graduatelevel study is a doorway to admissions
in educational institutions imparting professional or technical
or other higher education and, therefore, at that level, the
considerations akin to those relevant for professional or
technical educational institutions step in and become relevant.
This is in the national interest and strengthening the national
wealth, education included. Education up to the
undergraduate level on the one hand and education at the
graduate and postgraduate levels and in professional and
technical institutions on the other are to be treated on
different levels inviting not identical considerations, is a
proposition not open to any more debate after Pai Foundation,
(2002) 8 SCC 481. A number of legislations occupying the field
of education whose constitutional validity has been tested and
accepted suggest that while recognition or affiliation may not
be a must for education up to undergraduate level or, even if
required, may be granted as a matter of routine, recognition or
affiliation is a must and subject to rigorous scrutiny when it
comes to educational institutions awarding degrees, graduate
or postgraduate, postgraduate diplomas and degrees in
technical or professional disciplines. Some such legislations
are found referred in paras 81 and 82 of S.B. Sinha, J.’s
opinion in Islamic Academy, (2003) 6 SCC 697.”
Dealing with unaided minority educational institutions in T.M.A.
Pai Foundation (supra), the court observed that Article 30 does not
come in the way of the State stepping in to secure transparency and
recognition of merit in the matter of admissions. Regulatory measures
for ensuring educational standards can be framed. In the case of
professional education, transparency and merit have to be
unavoidably taken care of and cannot be compromised.
61
30.In Sindhi Education Society and Anr. v. Chief Secretary,
Government of NCT of Delhi and Ors., (2010) 8 SCC 49, the Court
opined that measures to regulate the courses of study, qualifications,
and appointment of teachers, the conditions of employment are
germane to the affiliation of minority institutions. The Court held
thus:
“47. Still another sevenJudge Bench of this Court, in
Ahmedabad St. Xavier’s College Society, (1974) 1 SCC 717, was
primarily concerned with the scope of Articles 29 and 30 of the
Constitution, relating to the rights of minorities to impart
general education and applicability of the concept of affiliation
to such institutions. Of course, the Court held that there was
no fundamental right of a minority institution to get affiliation
from a university. When a minority institution applies to a
university to be affiliated, it expresses its choice to participate
in the system of general education and courses of instructions
prescribed by that university, and it agrees to follow the
uniform courses of study. Therefore, measures which will
regulate the courses of study, the qualifications and
appointment of teachers, the conditions of employment of
teachers, the health, hygiene of students and the other
facilities are germane to affiliation of minority institutions.
55. The respondents have placed reliance upon the law stated
by the Bench that any regulation framed in the national
interest must necessarily apply to all educational institutions,
whether run by majority or the minority. Such a limitation
must be read into Article 30. The rule under Article 30(1)
cannot be such as to override the national interest or to
prevent the Government from framing regulations in that
behalf. It is, of course, true that government regulations
cannot destroy the minority character of the institution or
make a right to establish and administer a mere illusion; but
the right under Article 30 is not so absolute as to be above the
law.
56. The appellant also seeks to derive benefit from the view
that the courts have also held that the right to administer is
not absolute and is subject to reasonable regulations for the
benefit of the institutions as the vehicle of education
consistent with the national interest. Such general laws of the
land would also be applicable to the minority institutions as
well. There is no reason why regulations or conditions
62
concerning generally the welfare of the students and teachers
should not be made applicable in order to provide a proper
academic atmosphere. As such, the provisions do not, in any
way, interfere with the right of administration or management
under Article 30(1). Any law, 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
may not be any reverse discrimination.
92. The right under clause (1) of Article 30 is not absolute but
subject to reasonable restrictions which, inter alia, may be
framed having regard to the public interest and national
interest of the country. Regulation can also be framed to
prevent maladministration as well as for laying down
standards of education, teaching, maintenance of discipline,
public order, health, morality, etc. It is also well settled that a
minority institution does not cease to be so, the moment
grantinaid 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 nonminority students, to the extent, that
the right in Article 30(1) is not substantially impaired and
further, the citizen’s right under Article 29(2) is not infringed.”
In Chandana Das (Malakar) v. State of West Bengal and Ors.,
(2015) 12 SCC 140, the Court observed that the Government can
frame the conditions of eligibility for appointment of such teachers,
thus:
“21. It is unnecessary to multiply decisions on the subject for
the legal position is well settled. Linguistic institution and
religious are entitled to establish and administer their
institutions. Such right of administration includes the right of
appointing teachers of its choice but does not denude the State
of its power to frame regulations that may prescribe the
conditions of eligibility for appointment of such teachers. The
regulations can also prescribe measures to ensure that the
institution is run efficiently for the right to administer does not
include the right to maladministration. While grantinaid is
not included in the guarantee contained in the Constitution to
linguistic and religious minorities for establishing and running
their educational institutions, such grant cannot be denied to
such institutions only because the institutions are established
by linguistic or religious minority. Grant of aid cannot,
however, be made subservient to conditions which deprive the
63
institution of their substantive right of administering such
institutions. Suffice it to say that once Respondent 4
Institution is held to be a minority institution entitled to the
protection of Articles 26 and 30 of the Constitution of India the
right to appoint teachers of its choice who satisfy the
conditions of eligibility prescribed for such appointments
under the relevant rules is implicit in their rights to administer
such institutions. Such rights cannot then be diluted by the
State or its functionaries insisting that the appointment
should be made only with the approval of the Director or by
following the mechanism generally prescribed for institutions
that do not enjoy the minority status.”
31. In Modern Dental College and Research Centre (supra), the
Constitution Bench of this Court considered the provisions of Articles
19(1)(g), 19(6), 26 and 30 in relation to the right to freedom of
occupation of private unaided minority and nonminority educational
institutions. This Court observed that the activity of education is
neither trade nor profession, i.e., commercialisation and profiteering
cannot be permitted. It is open to impose reasonable restrictions in
the interest of general public. The education cannot be allowed to be a
purely economic activity; it is a welfare activity aimed at achieving
more egalitarian and prosperous society to bring out social
transformation and upliftment of the nation.
(a)This Court further opined that private unaided minority and
nonminority institutions have a right to occupation under Article
19(1), the said right is not absolute and subject to reasonable
restriction in larger public interest of students community to promote
merit, achieve excellence and curb malpractices by holding common
64
entrance test for admission and fee structure can undoubtedly be
regulated in such institutions.
(b)This Court in Modern Dental College and Research Centre (supra)
also held that unless the admission procedure and fixation of fees are
regulated and controlled at the initial stage, the evil of unfair practice
of granting admission on available seats guided by the paying capacity
of the candidates would be impossible to curb. The Court also noted
the menace of the fee prevailing in the various educational
professional institutions and in the context of Articles 19(1)(g), 19(6),
30, 41 and 47, and considering the Schedule VII, Entry 25 of List III
and Entry 6366 of List I, this Court held that concerning
"professional unaided minority" and "nonminority institutions",
common entrance test has to be conducted by the State and
regulation of the fee structure by it is permissible. The Court took
note of the largescale malpractices, exploitation of students,
profiteering, and commercialisation and entrance examination held by
various institutions failing the triple test of having fair, transparent,
and nonexploitative process. The Court held that reasonable
restriction can be imposed to regulate admission and fee structure.
The Court also observed about statutory functioning of the healthcare
system in the country and the poor functioning of the MCI.
65
(c)The Court further considered the criteria of proportionality and
emphasised for proper balance between the two facets viz. the rights
and limitations imposed upon it by a statute. The concept of
proportionality is an appropriate criterion. The law imposing
restrictions will be treated as proportional if it is meant to achieve a
proper purpose. If the measures taken to achieve such a goal are
rationally connected to the object, such steps are necessary. The
Court considered the concept of proportionality thus:
“57. It is well settled that the right under Article 19(1)(g) is not
absolute in terms but is subject to reasonable restrictions
under clause (6). Reasonableness has to be determined having
regard to the nature of right alleged to be infringed, purpose of
the restriction, extent of restriction and other relevant factors.
In applying these factors, one cannot lose sight of the directive
principles of State policy. The Court has to try to strike a just
balance between the fundamental rights and the larger
interest of the society. The Court interferes with a statute if it
clearly violates the fundamental rights. The Court proceeds on
the footing that the legislature understands the needs of the
people. The Constitution is primarily for the common man.
Larger interest and welfare of student community to promote
merit, achieve excellence and curb malpractices, fee and
admissions can certainly be regulated.
58. Let us carry out this discussion in some more detail as
this is the central issue raised by the appellants.
Doctrine of proportionality explained and applied
59. Undoubtedly, the right to establish and manage the
educational institutions is a fundamental right recognised
under Article 19(1)(g) of the Act. It also cannot be denied that
this right is not “absolute” and is subject to limitations i.e.
“reasonable restrictions” that can be imposed by law on the
exercise of the rights that are conferred under clause (1) of
Article 19. Those restrictions, however, have to be reasonable.
Further, such restrictions should be “in the interest of general
public”, which conditions are stipulated in clause (6) of Article
19, as under:
“19. (6) Nothing in subclause (g) of the said clause shall
affect the operation of any existing law insofar as it
66
imposes, or prevent the State from making any law
imposing, in the interests of the general public, reasonable
restrictions on the exercise of the right conferred by the said
subclause, and, in particular, nothing in the said sub
clause shall affect the operation of any existing law insofar
as it relates to, or prevent the State from making any law
relating to—
(i) the professional or technical qualifications
necessary for practising any profession or carrying on
any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation
owned or controlled by the State, of any trade, business,
industry or service, whether to the exclusion, complete
or partial, of citizens or otherwise.”
60. Another significant feature which can be noticed from the
reading of the aforesaid clause is that the State is empowered
to make any law relating to the professional or technical
qualifications necessary for practising any profession or
carrying on any occupation or trade or business. Thus, while
examining as to whether the impugned provisions of the
statute and rules amount to reasonable restrictions and are
brought out in the interest of the general public, the exercise
that is required to be undertaken is the balancing of
fundamental right to carry on occupation on the one hand and
the restrictions imposed on the other hand. This is what is
known as “doctrine of proportionality”. Jurisprudentially,
“proportionality” can be defined as the set of rules determining
the necessary and sufficient conditions for limitation of a
constitutionally protected right by a law to be constitutionally
permissible. According to Aharon Barak (former Chief Justice,
Supreme Court of Israel), there are four subcomponents of
proportionality which need to be satisfied [Aharon Barak,
Proportionality: Constitutional Rights and Their Limitation
(Cambridge University Press 2012)], a limitation of a
constitutional right will be constitutionally permissible if:
(i) it is designated for a proper purpose;
(ii) the measures undertaken to effectuate such a
limitation are rationally connected to the fulfilment of that
purpose;
(iii) the measures undertaken are necessary in that there
are no alternative measures that may similarly achieve that
same purpose with a lesser degree of limitation; and finally
(iv) there needs to be a proper relation (“proportionality
stricto sensu” or “balancing”) between the importance of
achieving the proper purpose and the social importance of
preventing the limitation on the constitutional right.
61. Modern theory of constitutional rights draws a
fundamental distinction between the scope of the
67
constitutional rights, and the extent of its protection. Insofar
as the scope of constitutional rights is concerned, it marks the
outer boundaries of the said rights and defines its contents.
The extent of its protection prescribes the limitations on the
exercises of the rights within its scope. In that sense, it defines
the justification for limitations that can be imposed on such a
right.
62. It is now almost accepted that there are no absolute
constitutional rights and all such rights are related. As per the
analysis of Aharon Barak, two key elements in developing the
modern constitutional theory of recognising positive
constitutional rights along with its limitations are the notions
of democracy and the rule of law. Thus, the requirement of
proportional limitations of constitutional rights by a sub
constitutional law i.e. the statute, is derived from an
interpretation of the notion of democracy itself. Insofar as the
Indian Constitution is concerned, democracy is treated as the
basic feature of the Constitution and is specifically accorded a
constitutional status that is recognised in the Preamble of the
Constitution itself. It is also unerringly accepted that this
notion of democracy includes human rights which is the
cornerstone of Indian democracy. Once we accept the aforesaid
theory (and there cannot be any denial thereof), as a fortiori, it
has also to be accepted that democracy is based on a balance
between constitutional rights and the public interests. In fact,
such a provision in Article 19 itself on the one hand
guarantees some certain freedoms in clause (1) of Article 19
and at the same time empowers the State to impose
reasonable restrictions on those freedoms in public interest.
This notion accepts the modern constitutional theory that the
constitutional rights are related. This relativity means that a
constitutional licence to limit those rights is granted where
such a limitation will be justified to protect public interest or
the rights of others. This phenomenon—of both the right and
its limitation in the Constitution—exemplifies the inherent
tension between democracy’s two fundamental elements. On
the one hand is the right’s element, which constitutes a
fundamental component of substantive democracy; on the
other hand is the people element, limiting those very rights
through their representatives. These two constitute a
fundamental component of the notion of democracy, though
this time in its formal aspect. How can this tension be
resolved? The answer is that this tension is not resolved by
eliminating the “losing” facet from the Constitution. Rather,
the tension is resolved by way of a proper balancing of the
competing principles. This is one of the expressions of the
multifaceted nature of democracy. Indeed, the inherent
tension between democracy’s different facets is a “constructive
tension”. It enables each facet to develop while harmoniously
coexisting with the others. The best way to achieve this
peaceful coexistence is through balancing between the
68
competing interests. Such balancing enables each facet to
develop alongside the other facets, not in their place. This
tension between the two fundamental aspects—rights on the
one hand and its limitation on the other hand—is to be
resolved by balancing the two so that they harmoniously
coexist with each other. This balancing is to be done keeping
in mind the relative social values of each competitive aspects
when considered in proper context.
63. In this direction, the next question that arises is as to
what criteria is to be adopted for a proper balance between the
two facets viz. the rights and limitations imposed upon it by a
statute. Here comes the concept of “proportionality”, which is a
proper criterion. To put it pithily, when a law limits a
constitutional right, such a limitation is constitutional if it is
proportional. The law imposing restrictions will be treated as
proportional if it is meant to achieve a proper purpose, and if
the measures taken to achieve such a purpose are rationally
connected to the purpose, and such measures are necessary.
This essence of doctrine of proportionality is beautifully
captured by Dickson, C.J. of Canada in R. v. Oakes, (1986) 1
SCR 103 (Can SC) in the following words (at p. 138):
“To establish that a limit is reasonable and demonstrably
justified in a free and democratic society, two central
criteria must be satisfied. First, the objective, which the
measures, responsible for a limit on a Charter right or
freedom are designed to serve, must be “of” sufficient
importance to warrant overriding a constitutional protected
right or freedom … Second … the party invoking Section 1
must show that the means chosen are reasonable and
demonstrably justified. This involves “a form of
proportionality test…” Although the nature of the
proportionality test will vary depending on the
circumstances, in each case courts will be required to
balance the interests of society with those of individuals
and groups. There are, in my view, three important
components of a proportionality test. First, the measures
adopted must be … rationally connected to the objective.
Second, the means … should impair “as little as possible”
the right or freedom in question … Third, there must be a
proportionality between the effects of the measures which
are responsible for limiting the Charter right or freedom,
and the objective which has been identified as of “sufficient
importance”. The more severe the deleterious effects of a
measure, the more important the objective must be if the
measure is to be reasonable and demonstrably justified in a
free and democratic society.”
64. The exercise which, therefore, is to be taken is to find out
as to whether the limitation of constitutional rights is for a
purpose that is reasonable and necessary in a democratic
69
society and such an exercise involves the weighing up of
competitive values, and ultimately an assessment based on
proportionality i.e. balancing of different interests.”
(d) In Modern Dental College and Research Centre (supra), the Court,
while dealing with reasonable restriction on rights under Article 19
observed:
“65. We may unhesitatingly remark that this doctrine of
proportionality, explained hereinabove in brief, is enshrined in
Article 19 itself when we read clause (1) along with clause (6)
thereof. While defining as to what constitutes a reasonable
restriction, this Court in a plethora of judgments has held that
the expression “reasonable restriction” seeks to strike a
balance between the freedom guaranteed by any of the sub
clauses of clause (1) of Article 19 and the social control
permitted by any of the clauses (2) to (6). It is held that the
expression “reasonable” connotes that the limitation imposed
on a person in the enjoyment of the right should not be
arbitrary or of an excessive nature beyond what is required in
the interests of public. Further, in order to be reasonable, the
restriction must have a reasonable relation to the object which
the legislation seeks to achieve, and must not go in excess of
that object (see P.P. Enterprises v. Union of India, (1982) 2 SCC
33). At the same time, reasonableness of a restriction has to be
determined in an objective manner and from the standpoint of
the interests of the general public and not from the point of
view of the persons upon whom the restrictions are imposed or
upon abstract considerations (see Mohd. Hanif Quareshi v.
State of Bihar, AIR 1958 SC 731). In M.R.F. Ltd. v. State of
Kerala, (1998) 8 SCC 227, this Court held that in examining
the reasonableness of a statutory provision one has to keep in
mind the following factors:
(1) The directive principles of State policy.
(2) Restrictions must not be arbitrary or of an excessive
nature so as to go beyond the requirement of the interest of
the general public.
(3) In order to judge the reasonableness of the
restrictions, no abstract or general pattern or a fixed
principle can be laid down so as to be of universal
application and the same will vary from case to case as also
with regard to changing conditions, values of human life,
social philosophy of the Constitution, prevailing conditions
and the surrounding circumstances.
(4) A just balance has to be struck between the
restrictions imposed and the social control envisaged by
Article 19(6).
70
(5) Prevailing social values as also social needs which
are intended to be satisfied by the restrictions.
(6) There must be a direct and proximate nexus or
reasonable connection between the restrictions imposed
and the object sought to be achieved. If there is a direct
nexus between the restrictions, and the object of the Act,
then a strong presumption in favour of the constitutionality
of the Act will naturally arise.”
(e) Concerning necessity of regulatory framework, the Court opined:
“85. No doubt, we have entered into an era of liberalisation of
the economy, famously termed as “globalisation” as well. In
such an economy, private players are undoubtedly given much
more freedom in economic activities, as the recognition has
drawn to the realities that the economic activities, including
profession, business, occupation, etc. are not normal forte of
the State and the State should have minimal role therein. It is
for this reason, many sectors which were hitherto State
monopolies, like telecom, power, insurance, civil aviation, etc.
have now opened up for private enterprise. Even in the field of
education the State/Government was playing a dominant role
inasmuch as it was thought desirable that in a welfare State it
is the fundamental duty, as a component of directive
principles, to impart education to the masses and commoners
as well as weaker sections of the society, at affordable rates. It
was almost treated as solemn duty of the Government to
establish adequate number of educational institutions at all
levels i.e. from primary level to higher education and in all
fields including technical, scientific and professional, to cater
to the varied sections of the society, particularly, when one
third of the population of the country is povertystricken with
large percentage as illiterate. With liberalisation, the
Government has encouraged establishments of privately
managed institutions. It is done with the hope that the private
sector will play vital role in the field of education with
philanthropic approach/ideals in mind as this activity is not to
be taken for the purpose of profiteering, but more as a societal
welfare.
86. It is, therefore, to be borne in mind that the occupation of
education cannot be treated on a par with other economic
activities. In this field, the State cannot remain a mute
spectator and has to necessarily step in in order to prevent
exploitation, privatisation and commercialisation by the
private sector. It would be pertinent to mention that even in
respect of those economic activities which are undertaken by
the private sector essentially with the objective of profit
making (and there is nothing bad about it), while throwing
open such kind of business activities in the hands of private
71
sector, the State has introduced regulatory regime as well by
providing regulations under the relevant statutes.
89. With the advent of globalisation and liberalisation, though
the market economy is restored, at the same time, it is also felt
that market economies should not exist in pure form. Some
regulation of the various industries is required rather than
allowing selfregulation by market forces. This intervention
through regulatory bodies, particularly in pricing, is
considered necessary for the welfare of the society and the
economists point out that such regulatory economy does not
rob the character of a market economy which still remains a
market economy. Justification for regulatory bodies even in
such industries managed by private sector lies in the welfare of
people. Regulatory measures are felt necessary to promote
basic well being for individuals in need. It is because of this
reason that we find regulatory bodies in all vital industries
like, insurance, electricity and power, telecommunications, etc.
90. Thus, it is felt that in any welfare economy, even for
private industries, there is a need for regulatory body and
such a regulatory framework for education sector becomes all
the more necessary. It would be more so when, unlike other
industries, commercialisation of education is not permitted as
mandated by the Constitution of India, backed by various
judgments of this Court to the effect that profiteering in the
education is to be avoided.”
(f) The Court held that the regulatory mechanism for centralised
examination is legal and constitutional and does not infringe on the
fundamental rights of the minority or nonminority to establish and
administer educational institutions. It observed:
“57. It is well settled that the right under Article 19(1)(g) is not
absolute in terms but is subject to reasonable restrictions
under clause (6). Reasonableness has to be determined having
regard to the nature of right alleged to be infringed, purpose of
the restriction, extent of restriction and other relevant factors.
In applying these factors, one cannot lose sight of the directive
principles of State policy. The Court has to try to strike a just
balance between the fundamental rights and the larger
interest of the society. The Court interferes with a statute if it
clearly violates the fundamental rights. The Court proceeds on
the footing that the legislature understands the needs of the
people. The Constitution is primarily for the common man.
72
Larger interest and welfare of student community to promote
merit, achieve excellence and curb malpractices, fee and
admissions can certainly be regulated.
“97. The very object of setting up institutions for the State is a
welfare function, for the purpose of excelling in educational
standards. On the other hand, the primary motivation for
private parties is profit motive or philanthropy. When the
primary motivation for institutions is profit motive, it is
natural that many means to achieve the same shall be adopted
by the private institutions which leads to a large degree of
secrecy and corruption. As such, the mechanism of
regulations as envisaged under the impugned laws is legal,
constitutional, fair, transparent and uphold the primary
criteria of merit. The same does not infringe on the
fundamental rights of either the minorities or the non
minorities to establish and administer educational institutions
and must as such be upheld as valid.”
(g) The Court also took note of prevailing situation of corruption in
the field of education and commercialisation of education thus:
“68. We are of the view that the larger public interest
warrants such a measure. Having regard to the malpractices
which are noticed in the CET conducted by such private
institutions themselves, for which plethora of material is
produced, it is, undoubtedly, in the larger interest and welfare
of the student community to promote merit, add excellence
and curb malpractices. The extent of restriction has to be
viewed keeping in view all these factors and, therefore, we feel
that the impugned provisions which may amount to
“restrictions” on the right of the appellants to carry on their
“occupation”, are clearly “reasonable” and satisfied the test of
proportionality.”
86. It is, therefore, to be borne in mind that the occupation of
education cannot be treated on a par with other economic
activities. In this field, the State cannot remain a mute
spectator and has to necessarily step in in order to prevent
exploitation, privatisation and commercialisation by the
private sector. It would be pertinent to mention that even in
respect of those economic activities which are undertaken by
the private sector essentially with the objective of profit
making (and there is nothing bad about it), while throwing
open such kind of business activities in the hands of private
sector, the State has introduced regulatory regime as well by
providing regulations under the relevant statutes.
73
96. As is evident from the facts mentioned by the State of
Madhya Pradesh in its reply filed in IA No. 83 of 2015, the
Association of Private Colleges has failed to hold their CETs in
a fair, transparent and rational manner. The accountability
and transparency in State actions is much higher than in
private actions. It is needless to say that the incidents of
corruption in the State machinery were brought in the public
eye immediately and have been addressed expeditiously. The
same could never have been done in case of private actions.
Even on a keel of comparative efficiency, it is more than
evident that the State process is far more transparent and fair
than one that is devised by the private colleges which have no
mechanism of any checks and balances. The State agencies
are subject to the Right to Information Act, audit, State
Legislature, anticorruption agencies, Lokayukta, etc.
172. Maintenance and improvement of public health and to
provide health care and medical services is the constitutional
obligation of the State. To discharge this constitutional
obligation, the State must have the doctors with professional
excellence and commitment who are ready to give medical
advice and services to the public at large. The State can
satisfactorily discharge its constitutional obligation only when
the aspiring students enter into the profession based on merit.
None of these lofty ideals can be achieved without having good
and committed medical professionals.
190. For the foregoing discussion, I hold that the State has the
legislative competence to enact the impugned legislation—the
2007 Act to hold common entrance test for admission to
professional educational institutions and to determine the fee
and the High Court has rightly upheld the validity of the
impugned legislation. Regulations sought to be imposed by the
impugned legislation on admission by common entrance test
conducted by the State and determination of fee are in
compliance of the directions and observations in T.M.A. Pai,
(2002) 8 SCC 481, Islamic Academy of Education, (2003) 6 SCC
697 and P.A. Inamdar, (2005) 6 SCC 537. Regulations on
admission process are necessary in the larger public interest
and welfare of the student community to ensure fairness and
transparency in the admission and to promote merit and
excellence. Regulation on fixation of fee is to protect the rights
of the students in having access to higher education without
being subjected to exploitation in the form of profiteering. With
the above reasonings, I concur with the majority view in
upholding the validity of the impugned legislation and affirm
the wellmerited decision of the High Court.”
74
(h)The Court in Modern Dental College and Research Centre (supra)
while considering the decision in T.M.A. Pai Foundation (supra) opined
that Court did not give complete freedom to admit the students and
also as to fixation of fee. Admission has to be based on merit,
particularly in professional educational institutions. This Court
observed thus:
“34. In the modern age, therefore, particularly after the policy
of liberalisation adopted by the State, educational institutions
by private bodies are allowed to be established. There is a
paradigm shift over from the era of complete government
control over education (like other economic and commercial
activities) to a situation where private players are allowed to
mushroom. But at the same time, regulatory mechanism is
provided thereby ensuring that such private institutions work
within such regulatory regime. When it comes to education, it
is expected that unaided private institutions provide quality
education and at the same time they are given “freedom in
joints” with minimal Government interference, except what
comes under regulatory regime. Though education is now
treated as an “occupation” and, thus, has become a
fundamental right guaranteed under Article 19(1)(g) of the
Constitution, at the same time shackles are put insofar as this
particular occupation is concerned which is termed as “noble”.
Therefore, profiteering and commercialisation are not
permitted and no capitation fee can be charged. The admission
of students has to be on merit and not at the whims and
fancies of the educational institutions. Merit can be tested by
adopting some methodology and few such methods are
suggested in T.M.A. Pai Foundation, (2002) 8 SCC 481, which
includes holding of CET. It is to be ensured that this
admission process meets the triple test of transparency,
fairness and nonexploitativeness.
37. Insofar as the first part of the question is concerned, it
does not pose any problem and the answer goes in favour of
the appellants. We may recapitulate here that Article 26 of the
Constitution gives freedom to every religious denomination or
any section thereof by conferring certain rights which include
right to establish and maintain institutions for religious and
charitable purposes. Thus, insofar as religious denominations
or any section thereof are concerned, they were given right to
establish and maintain institutions for religious and charitable
purposes making it a fundamental right. Likewise, Article 30
75
confers upon minorities fundamental right to establish and
administer educational institutions. Insofar as Article 26 is
concerned, it comes under the caption “Right to Freedom of
Religion”. As far as Article 30 is concerned, it is under the
heading “Cultural and Educational Rights”. Thus, rights of the
minorities to establish and administer educational institutions
were always recognised as fundamental rights. Further, the
right of private unaided professional institutions to establish
and manage educational institutions was not clearly
recognised as a fundamental right covered under Article 19(1)
(g) and categorically rejected by the Constitution Bench of this
Court comprising of five Judges in Unni Krishnan, (1993) 1
SCC 645. It was held in para 198 of the judgment that: (SCC
p. 752)
“198. [w]e are, therefore, of the opinion, adopting the line of
reasoning in State of Bombay v. R.M.D. Chamarbaugwala,
AIR 1957 SC 699, that imparting education cannot be
treated as a trade or business. Education cannot be allowed
to be converted into commerce nor can petitioners seek to
obtain the said result by relying upon the wider meaning of
“occupation”.”
38. In Unni Krishnan case, (1993) 1 SCC 645, this Court also
rejected the argument that the said activity could be classified
as a “profession”. However, the right of professional
institutions to establish and manage educational institutions
was finally regarded as an “occupation” befitting the
recognition of this right as a fundamental right under Article
19(1)(g) in T.M.A. Pai Foundation, (2002) 8 SCC 481, in the
following words: (SCC p. 535, para 25)
“25. The establishment and running of an educational
institution where a large number of persons are employed
as teachers or administrative staff, and an activity is carried
on that results in the imparting of knowledge to the
students, must necessarily be regarded as an occupation,
even if there is no element of profit generation. It is difficult
to comprehend that education, per se, will not fall under
any of the four expressions in Article 19(1)(g). “Occupation”
would be an activity of a person undertaken as a means of
livelihood or a mission in life. The abovequoted observations
in Sodan Singh case, (1989) 4 SCC 155, correctly interpret
the expression “occupation” in Article 19(1)(g).”
40. It becomes necessary to point out that while treating the
managing of educational institution as an “occupation”, the
Court was categorical that this activity could not be treated as
“business” or “profession”. This right to carry on the
occupation that education is, the same is not put on a par
with other occupations or business activities or even other
professions. It is a category apart which was carved out by this
Court in T.M.A. Pai Foundation, (2002) 8 SCC 481. There was a
76
specific purpose for not doing so. Education is treated as a
noble “occupation” on “no profit no loss” basis. Thus, those who
establish and are managing the educational institutions are
not expected to indulge in profiteering or commercialising this
noble activity. Keeping this objective in mind, the Court did
not give complete freedom to the educational institutions in
respect of right to admit the students and also with regard to
fixation of fee. As far as admission of students is concerned,
the Court was categorical that such admissions have to be on
the basis of merit when it comes to higher education,
particularly in professional institutions.”
(i)In Modern Dental College and Research Centre (supra), the Court
considered decision in T.M.A. Pai Foundation (supra), and observed
that Government is permitted to frame regulations for unaided private
professional educational institutions, thus:
“42. In order to see that merit is adjudged suitably and
appropriately, the Court candidly laid down that the procedure
for admission should be so devised which satisfies the triple
test of being fair, transparent and nonexploitative. The next
question was as to how the aforesaid objective could be
achieved? For determining such merit, the Court showed the
path in para 59 by observing that such merit should be
determined either by the marks that students obtained at
qualifying examination or at CET conducted by the institutions
or in the case of professional colleges, by government agencies.
Para 59 suggesting these modes reads as under: (T.M.A. Pai
Foundation case, (2002) 8 SCC 481, SCC p. 546)
“59. Merit 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.”
This paragraph very specifically authorises CET to be
conducted by government agencies in the case of professional
colleges.
43. In order to ensure that the said CET is fair, transparent
and meritbased, T.M.A. Pai Foundation, (2002) 8 SCC 481,
also permitted the Government to frame regulations for
unaided private professional educational institutions. Paras 67
77
and 68 which permit framing of such regulations are
reproduced below: (SCC p. 549)
“67. We now come to the regulations that can be framed
relating to private unaided professional institutions.
68. It 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
forego 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 meritbased 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 nonprofessional but
unaided educational institutions viz. graduation and
postgraduation nonprofessional colleges or institutes.”
44. A plea was raised by the appellants that by exercising the
power to frame regulations, the State could not usurp the very
function of conducting this admission test by the educational
institutions. It was argued that it only meant that such a CET
is to be conducted by the educational institutions themselves
and the Government could only frame the regulations to
regulate such admission tests to be conducted by the
educational institutions and could not take away the function
of holding CET.
45. This argument has to be rejected in view of the
unambiguous and categorical interpretation given by the
Supreme Court in P.A. Inamdar, (2005) 6 SCC 537, with
respect to certain observations, particularly in para 68 in
T.M.A. Pai Foundation, (2002) 8 SCC 481. In this behalf, we
would like to recapitulate that in T.M.A. Pai Foundation, (2002)
8 SCC 481, a Bench of eleven Judges dealt with the issues of
scope of right to set up educational institutions by private
aided or unaided, minority or nonminority institutions and
the extent of government regulation of the said right. It was
78
held that the right to establish and administer an institution
included the right to admit students and to set up a
reasonable fee structure. But the said right could be regulated
to ensure maintenance of proper academic standards,
atmosphere and infrastructure. Fixing of 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. However, occupation of education was not
business but profession involving charitable activity. The State
can forbid charging of capitation fee and profiteering. The
object of setting up educational institution is not to make
profit. There could, however, be a reasonable revenue surplus
for development of education. For admission, merit must play
an important role. The State or the University could require
private unaided institution to provide for meritbased selection
while giving sufficient discretion in admitting students. Certain
percentage of seats could be reserved for admission by
management out of students who have passed CET held by the
institution or by the State/University. Interpretation of certain
observations in para 68 of the judgment in T.M.A. Pai
Foundation, (2002) 8 SCC 481, has been a matter of debate to
which we will advert to in detail hereinafter.
48. The matter was then considered by a larger Bench of seven
Judges in P.A. Inamdar, (2005) 6 SCC 537. It was held that the
two committees for monitoring admission procedure and
determining fee structure as per the judgment in Islamic
Academy of Education, (2003) 6 SCC 697, were permissible as
regulatory measures aimed at protecting the student
community as a whole as also the minority themselves in
maintaining required standards of professional education on
nonexploitative terms. This did not violate Article 30(1) or
Article 19(1)(g). It was observed that: (P.A. Inamdar case,
(2005) 6 SCC 537, SCC p. 607, para 145)
“145. … Unless the admission procedure and fixation of fees
is regulated and controlled at the initial stage, the evil of
unfair practice of granting admission on available seats
guided by the paying capacity of the candidates would be
impossible to curb.”
(emphasis supplied)
On this ground, suggestion of the institutions to achieve the
purpose for which committees had been set up by postaudit
checks after the institutions adopted their own admission
procedure and fee structure was rejected. The committees
were, thus, allowed to continue for regulating the admissions
and the fee structure until a suitable legislation or regulations
were framed by the States. It was left to the Central
Government and the State Governments to come out with a
detailed wellthought out legislation setting up a suitable
79
mechanism for regulating admission procedure and fee
structure. Para 68 in T.M.A. Pai Foundation case, (2002) 8 SCC
481, was explained by stating that observations permitting the
management to reserve certain seats were meant for poorer
and backward sections as per local needs. It did not mean to
ignore the merit. It was also held that CET could be held,
otherwise, merit becomes a casualty. There is, thus, no bar to
CET being held by a State agency when the law so provides.”
(j) The Court held that entrance examination is a regulatory measure
and does not infringe on the rights of the institutions. It opined:
“49. Thus, the contention raised on behalf of the appellants
that the private medical colleges had absolute right to make
admissions or to fix fee is not consistent with the earlier
decisions of this Court. Neither merit could be compromised in
admissions to professional institutions nor capitation fee could
be permitted. To achieve these objects it is open to the State to
introduce regulatory measures. We are unable to accept the
submission that the State could intervene only after proving
that merit was compromised or capitation fee was being
charged. As observed in the earlier decisions of this Court,
postaudit measures would not meet the regulatory
requirements. Control was required at the initial stage itself.
Therefore, our answer to the first question is that though
“occupation” is a fundamental right, which gives right to the
educational institutions to admit the students and also fix the
fee, at the same time, scope of such rights has been discussed
and limitations imposed thereupon by the aforesaid judgments
themselves explaining the nature of limitations on these rights.
55. It would be necessary to clarify the position in respect of
educational institutions run by minorities. Having regard to
the pronouncement in T.M.A. Pai Foundation, (2002) 8 SCC
481, with lucid clarifications to the said judgment given by this
Court in P.A. Inamdar, (2005) 6 SCC 537, it becomes clear that
insofar as such regulatory measures are concerned, the same
can be adopted by the State in respect of minorityrun
institutions as well. Reliance placed by the appellants in St.
Stephen’s College v. University of Delhi, (1992) 1 SCC 558, may
not be of much help as that case did not concern with
professional educational institutions.
67. Undoubtedly, right to establish and administer
educational institutions is treated as a fundamental right as it
is termed “occupation”, which is one of the freedoms
guaranteed under Article 19(1)(g). It was so recognised for the
first time in T.M.A. Pai Foundation, (2002) 8 SCC 481. Even
while doing so, this right came with certain clutches and
80
shackles. The Court made it clear that it is a noble occupation
which would not permit commercialisation or profiteering and,
therefore, such educational institutions are to be run on “no
profit no loss basis”. While explaining the scope of this right,
right to admit students and right to fix fee was accepted as
facets of this right, the Court again added caution thereto by
mandating that admissions to the educational institutions
imparting higher education, and in particular professional
education, have to admit the students based on merit. For
judging the merit, the Court indicated that there can be a CET.
While doing so, it also specifically stated that in case of
admission to professional courses such a CET can be
conducted by the State. If such a power is exercised by the
State assuming the function of CET, this was so recognised in
T.M.A. Pai Foundation, (2002) 8 SCC 481 itself, as a measure of
“reasonable restriction on the said right”. Islamic Academy of
Education, (2003) 6 SCC 697, further clarified the contour of
such function of the State while interpreting T.M.A. Pai
Foundation, (2002) 8 SCC 481, itself wherein it was held that
there can be committees constituted to supervise conducting
of such CET. This process of interpretative balancing and
constitutional balancing was remarkably achieved in P.A.
Inamdar, (2005) 6 SCC 537, by not only giving its premature to
deholding (sic imprimatur to the holding) of CET but it went
further to hold that agency conducting the CET must be the
one which enjoys the utmost credibility and expertise in the
matter to achieve fulfilment of twin objectives of transparency
and merit and for that purpose it permitted the State to
provide a procedure of holding a CET in the interest of
securing fair and meritbased admissions and preventing
maladministration.”
This Court also considered the balancing of rights even if there is
a violation of fundamental rights of the appellants to admit students
by Central Examination Test by State. It held as under:
“92. In this sense, when imparting of quality education to
crosssection of the society, particularly, the weaker section
and when such private educational institutions are to rub
shoulders with the State managed educational institution to
meet the challenge of the implementing ambitious
constitutional promises, the matter is to be examined in a
different hue. It is this spirit which we have kept in mind while
balancing the right of these educational institutions given to
them under Article 19(1)(g) on the one hand and
reasonableness of the restrictions which have been imposed by
the impugned legislation. The right to admission or right to fix
81
the fee guaranteed to these appellants is not taken away
completely, as feared. T.M.A. Pai Foundation, (2002) 8 SCC
481, gives autonomy to such institutions which remains
intact. Holding of CET under the control of the State does not
impinge on this autonomy. Admission is still in the hands of
these institutions. Once it is even conceded by the appellants
that in admission of students “triple test” is to be met, the
impugned legislation aims at that. After all, the sole purpose of
holding CET is to adjudge merit and to ensure that admissions
which are done by the educational institutions, are strictly on
merit. This is again to ensure larger public interest. It is
beyond comprehension that merely by assuming the power to
hold CET, fundamental right of the appellants to admit the
students is taken away. Likewise, when it comes to fixation of
fee, as already dealt with in detail, the main purpose is that
the State acts as a regulator and satisfies itself that the fee
which is proposed by the educational institution does not have
the element of profiteering and also that no capitation fee, etc.
is charged. In fact, this dual function of regulatory nature is
going to advance the public interest inasmuch as those
students who are otherwise meritorious but are not in a
position to meet unreasonable demands of capitation fee, etc.
are not deprived of getting admissions. The impugned
provisions, therefore, are aimed at seeking laudable objectives
in larger public interest. Law is not static, it has to change
with changing times and changing social/societal conditions.”
(k)The Court held that MCI Act and the rules prescribed reasonable
restrictions under Article 19(6), thus:
“53. After referring to paras 136 and 137 in P.A. Inamdar,
(2005) 6 SCC 537, it was observed: (Assn. of Private Dental
case, 2009 SCC OnLine MP 760, SCC OnLine MP paras 34 &
37)
“34. It will be thus clear from paras 136 and 137 of the
judgment in P.A. Inamdar, (2005) 6 SCC 537, quoted above,
that admissions to private unaided professional educational
institutions can be made on the basis of merit of candidates
determined in the common entrance test followed by
centralised counselling by the institutions imparting same
or similar professional education together or by the State or
by an agency which must enjoy utmost credibility and
expertise and that the common entrance test followed by
centralised counselling must satisfy the triple test of being
fair, transparent and nonexploitative. Thus, the judgments
of the Supreme Court in T.M.A. Pai Foundation, (2002) 8
SCC 481 and P.A. Inamdar, (2005) 6 SCC 537, permit
holding of a common entrance test for determination of
merit for admission to private unaided professional
educational institutions by the State as well as any agency
82
which enjoy utmost credibility and expertise in the matter
and which should ensure transparency in merit.
* **
37. Sections 3(d), 6 and 7 of the 2007 Act by providing that
the common entrance test for determining merit for
admissions in the private unaided professional educational
institutions by a common entrance test to be conducted by
the State or by an agency authorised by the State do not
interfere with the autonomy of private unaided professional
educational institutions, as such private professional
educational institutions are entitled to collect the fees from
the students admitted to the institutions on the basis of
merit, appoint their own staff (teaching and nonteaching),
discipline and remove the staff, provide infrastructure and
other facilities for students and do all such other things as
are necessary to impart professional education to the
students. Sections 3(d), 6 and 7 of the 2007 Act, therefore,
do not impinge on the fundamental right to carry on the
occupation of establishing and administering professional
educational institutions as an occupation. The only purpose
of Sections 3(d), 6 and 7 of the 2007 Act is to ensure that
students of excellence are selected on the basis of a
common entrance test conducted by the State or an agency
authorised by the State and that students without
excellence and merit do not make entry into these
professional educational institutions through malpractices
and influence. As has been held both in the judgments in
T.M.A. Pai Foundation, (2002) 8 SCC 481 and P.A. Inamdar,
(2005) 6 SCC 537, the right of private unaided professional
educational institutions to admit students of their choice is
subject to selection of students on the basis of their merit
through a transparent, fair and nonexploitative procedure.
In our considered opinion therefore, Sections 3(d), 6 and 7
of the 2007 Act do not in any way violate the fundamental
right of citizens guaranteed under Article 19(1)(g) of the
Constitution. In view of this conclusion, it is not necessary
for us to decide whether the provisions of Sections 3(d), 6
and 7 of the 2007 Act are saved by Article 15(5) of the
Constitution or by the second limb of Article 19(6) of the
Constitution relating to the power of the State to make a
law for creation of monopoly in its favour in respect of any
service.””
32.In Sankalp Charitable Trust (supra), various orders passed by
this Court on different dates have been reported. This Court noted
that NEET has been restored by judgment dated 11.4.2016 by which
83
the judgment and order in Christian Medical College, Vellore and
others was recalled. The respondents were directed to hold
examination for admission to MBBS and BDS courses for the
academic year 201617. The Court passed following order dated
28.4.2016:
“10. In view of the submissions made on behalf of the
respondents, we record that NEET shall be held as stated by
the respondents. We further clarify that notwithstanding any
order passed by any court earlier with regard to not holding
NEET, this order shall operate. Therefore, no further order is
required to be passed at this stage.
11. It may be mentioned here that some learned counsel
representing those who are not parties to this petition have
made submissions that in view of the judgment passed in
Christian Medical College, Vellore v. Union of India, it would not
be proper to hold NEET and this order should not affect
pending matters.
12. We do not agree with the first submission for the reason
that the said judgment has already been recalled on 1142016
and therefore, the Notifications dated 21122010 are in
operation as on today.”
On 6.5.2016, the Court directed that no examination shall be
permitted to be held for admission to MBBS or BDS studies by any
private college or association or any private/deemed university.
Relevant portion is extracted hereunder:
“23. In view of the request made by the learned Solicitor
General, hearing is adjourned to 952016. However, it is
clarified that no examination shall be permitted to be held for
admission to MBBS or BDS studies by any private college or
association or any private/deemed university.
24. The issue with regard to those students, who had
appeared or who are due to appear in examinations conducted
84
by the States in accordance with their State laws, shall be
decided after hearing the learned Solicitor General.”
On 9.5.2016, in the aforesaid matter, the Court considered
various applications filed by private medical colleges seeking
clarification of order dated 28.4.2016. This Court directed as under:
“29. Medical Council of India (MCI) and Dental Council of
India (DCI) issued Notifications dated 21122010, amending
the existing statutory regulations to provide for a single
National EligibilitycumEntrance Test (NEET) for admission to
the MBBS/BDS course. The said Notifications were struck
down in Christian Medical College, Vellore v. Union of India,
(2014) 2 SCC 305. The said judgment stands recalled vide
order dated 1142016 in Medical Council of India v. Christian
Medical College, Vellore, (2016) 4 SCC 342.
32. In a recent Constitution Bench judgment dated 252016,
in Modern Dental College & Research Centre v. State of M.P.,
(2016) 7 SCC 353, the stand of the private medical colleges
(including minorities) that conducting of entrance test by the
State violated the right of autonomy of the said colleges, has
been rejected. The State law providing for conducting of
entrance test was upheld, rejecting the contention that the
State had no legislative competence on the subject. At the
same time, it was held that the admission involved two
aspects. First, the adoption of setting up of minimum
standards of education and coordination of such standards
which aspect was covered exclusively by List I Entry 66. The
second aspect is with regard to implementation of the said
standards which was covered by List III Entry 25. On the said
aspect, the State could also legislate. The two entries overlap
to some extent and to that extent List I Entry 66 prevailed over
the subject covered by Entry 25.
33. Prima facie, we do not find any infirmity in the NEET
regulation on the ground that it affects the rights of the States
or the private institutions. Special provisions for reservation of
any category are not subjectmatter of NEET nor are the rights
of minority in any manner affected by NEET. NEET only
provides for conducting entrance test for eligibility for
admission to the MBBS/BDS course.
34. We thus, do not find any merit in the applications seeking
modification of the order dated 2842016.”
85
33.In Jainarayan Chouksey (supra), the Court followed the decision
in Modern Dental College and Research Centre (supra) and opined that
the said decision encompasses not only the Stateconducted
centralised test but also Stateconducted centralised counselling.
This Court issued a mandate for both the purposes, i.e., examination
as well as counselling and held:
“5. We have heard the learned counsel for the parties at
length. We observe that mandate of our judgment was to hold
centralised entrance test followed by centralised State
counselling by the State to make it a one composite process.
We, therefore, direct that admission to all medical seats shall
be conducted by centralised counselling only by the State
Government and none else.
6. If any counselling has been done by any college or
university and any admission to any medical seat has been
given so far, such admission shall stand cancelled forthwith
and admission shall be given only as per centralised
counselling done by the State Government.”
34.In D.Y. Patil Vidyapeeth (supra), the Court again clarified that
the decision in Modern Dental College and Research Centre (supra)
encompasses not only centralised Stateconducted test but also
centralised Stateconducted counselling.
35.The MCI amended vide notification dated 10.3.2017 the
Regulation on Graduate Medical Education, 1997 and Post Graduate
Medical Education Regulations, 2000 providing for common
counselling for admission to MBBS and postgraduate medicine
86
courses on the basis of NEET. The said notifications were challenged
by minority institutions, deemed universities, and other private
institutions by filing a writ petition before this Court. The Court vide
order dated 9.5.2017 in DarusSalam Educational Trust and Ors. v.
Medical Council of India and Ors., (Writ Petition (C) No.267 of 2017)
opined that common counselling does not in any manner affect the
right of minority institutions to admit students of their own minority
community. The Court held thus:
“10. Common counselling conducted by the DGHS/State
Government will not in any manner affect the rights of
minority institutions to admit students of their respective
minority community. The minority quota seats, if any, in
institutions run by minorities will be filled up by minority
students only. Therefore, the rights of minority institutions are
fully protected. Needless to say this arrangement will not apply
to the States of Andhra Pradesh, Telangana and Jammu &
Kashmir. As far as the other States are concerned, needless to
say, this arrangement shall apply to all the colleges unless this
Court has passed any different or separate order.”
36.In Yatinkumar Jasubhai Patel (supra), the Court held that
introduction of NEET does not affect the 50% State quota seat in PG
medicine course. The Court also considered Section 10D of the Act of
1956 and regulations as amended by MCI. It opined as under:
“9.4. However, it is the case on behalf of the petitioners that
in view of the introduction of the NEET Scheme and in view of
Section 10D of the MCI Act, by which admissions are to be
given on the basis of merit in the NEET, such an “institutional
preference” would not be permissible. It is required to be noted
that introduction of the NEET has, as such, nothing to do with
any preference/institutional preference, more particularly the
“institutional preference” as approved by this Court time and
again. The purpose and object of the introduction of NEET was
to conduct a uniform entrance examination for all medical
87
educational institutions at the undergraduate level or
postgraduate level and admissions at the undergraduate level
and postgraduate level are to be given solely on the basis of
the merits and/or marks obtained in the NEET examination
only. It is required to be noted that earlier the respective
universities including Gujarat University used to hold
examination for postgraduate admission to medical courses
and now instead of such tests by Gujarat
University/universities concerned, merit is to be determined
on the basis of the NEET examination results only and
admissions are required to be given on the basis of such
merits or marks obtained in NEET. The only obligation by
virtue of introduction of NEET is that, once centralised
admission test is conducted, the State, its agencies,
universities and institutions cannot hold any separate test for
the purpose of admission to postgraduate and PG and diploma
courses and such seats are to be filled up by the State
agencies, universities/institutions for preparing merit list as
per the score obtained by the applicants in NEET examination
and therefore by introduction of NEET, Section 10D of the
MCI Act has been amended, consequently amendment to the
PostGraduate Education Regulations, 2000, admission to
postgraduate courses are made providing for solely on the
basis of the score secured by the candidates seeking
admission based on centralised examination i.e. NEET.
9.5. Even while giving admissions in the State
quota/institutional reservation quota, still the admissions are
required to be given on the basis of the merits determined on
the basis of the NEET examination results. Under the
circumstances, introduction of the NEET Scheme, as such,
has nothing to do with the “institutional preference”.
Therefore, the change by introduction of the NEET Scheme
shall not affect the institutional preference/reservation as
approved by this Court from time to time in a catena of
decisions, more particularly the decisions referred to
hereinabove. Under the guise of introduction of the NEET
Scheme, the petitioners cannot be permitted to reagitate
and/or reopen the issue with respect to institutional
preference which has been approved and settled by this Court
in a catena of decisions, more particularly the decisions
referred to hereinabove.”
37.The notifications, which are questioned in the matters and the
amendment made to Section 10D as introduced in the Act of 1956 and
regulations as amended by the MCI and similar provisions inserted in
88
the Dentists Act & Regulations, cannot be said to be taking away the
rights of the unaided minority institutions or private institutions of
making admission in any manner as it is permissible to provide
regulatory mechanism at the national level and the entrance test
applies even to All India Institute of Medical Science (AIIMS) – the
most reputed Institute of India. It is open to provide the regulatory
mechanism for admission for such courses as held in T.M.A. Pai
Foundation (supra) the qualification and conditions of eligibility in the
interest of academic standards can be provided, and there could be
regulatory measures for ensuring educational standards and
maintaining excellence in the matter of professional institution. Thus,
the decision in T.M.A. Pai Foundation (supra) rendered by 11Judge
Bench is juxtaposed to the submission raised on behalf of petitioners.
38.In P.A. Inamdar (supra), the Court laid down the triple test of a
fair, transparent and nonexploitative mechanism and if the admission
procedure adopted by private institution does not satisfy all or any of
the triple tests, it held that the admission procedure can be taken over
by the State substituting its process. This aspect was gauged in
Modern Dental College and Research Centre (supra) in a broader
perspective considering prevailing situation of capitation fee and
education becoming saleable commodity. A decision has been taken
to regulate admission in professional colleges on national basis so as
89
to wipe out the corruption and various evils from the system. Even,
the NEET has been made applicable to such premier institution like
All India Institute of Medical Sciences (AIIMS) and so many others.
The decision has been taken considering the overall national scenario,
there cannot be any exemption, otherwise, there would be no end to
such claims and multiple examinations. It would not be possible to
eradicate evils. We cannot restore overall derogatory situation which
prevailed before introduction of NEET. Still, there are several
loopholes, which are to be plugged in the admission procedure.
Unscrupulous practices are being adopted by private colleges of not
admitting students sponsored by centralised counselling committee.
The minority and private institutions have to admit students based on
merit in the permissible category, based on NEET as per procedure
prescribed under the Act and Regulations.
39.In Faculty Association of All India Institute of Medical Sciences v.
Union of India and Ors., (2013) 11 SCC 246, concerning issue of
reservation in superspeciality, the Court opined:
“22. Although the matter has been argued at some length, the
main issue raised regarding reservation at the superspeciality
level has already been considered in Indra Sawhney case,
1992 Supp (3) SCC 217, by a nineJudge Bench of this Court.
Having regard to such decision, we are not inclined to take any
view other than the view expressed by the nineJudge Bench
on the issue. Apart from the decisions rendered by this Court
in Jagadish Saran case , (1980) 2 SCC 768 and Pradeep Jain
case , (1984) 3 SCC 654, the issue also fell for consideration in
Preeti Srivastava case, (1999) 7 SCC 120, which was also
90
decided by a Bench of five Judges. While in Jagadish Saran
case, (1980) 2 SCC 768 and in Pradeep Jain case, (1984) 3
SCC 654, it was categorically held that there could be no
compromise with merit at the superspeciality stage, the same
sentiments were also expressed in Preeti Srivastava case,
(1999) 7 SCC 120, as well.
23. In Preeti Srivastava case, (1999) 7 SCC 120, the
Constitution Bench had an occasion to consider Regulation 27
of the Post Graduate Institute of Medical Education and
Research, Chandigarh Regulations, 1967, whereby 20% of
seats in every course of study in the institute was to be
reserved for candidates belonging to the Scheduled Castes,
Scheduled Tribes or other categories of persons, in accordance
with the general rules of the Central Government promulgated
from time to time. The Constitution Bench came to the
conclusion that Regulation 27 could not have any application
at the highest level of superspeciality as this would defeat the
very object of imparting the best possible training to selected
meritorious candidates, who could contribute to the
advancement of knowledge in the field of medical research and
its applications. Their Lordships ultimately went on to hold
that there could not be any type of relaxation at the
superspeciality level.
24. In para 836 of the judgment in Indra Sawhney case, 1992
Supp (3) SCC 217, it was observed that while the relevance
and significance of merit at the stage of initial recruitment
cannot be ignored, it cannot also be ignored that the same idea
of reservation implies selection of a less meritorious person. It
was also observed that at the same time such a price would
have to be paid if the constitutional promise of social justice
was to be redeemed. However, after making such suggestions,
a note of caution was introduced in the very next paragraph in
the light of Article 15 of the Constitution. A distinction was,
however, made with regard to the provisions of Article 16 and
it was held that Article 335 would be relevant and it would not
be permissible not to prescribe any minimum standard at all.
Of course, the said observation was made in the context of
admission to medical colleges and reference was also made to
the decision in State of M.P. v. Nivedita Jain, (1981) 4 SCC
296, where admission to medical courses was regulated by an
entrance test. It was held that in the matter of appointment of
medical officers, the Government or the Public Service
Commission would not be entitled to say that there would not
be minimum qualifying marks for Scheduled
Castes/Scheduled Tribes candidates while prescribing a
minimum for others. In the very next paragraph, the nine
Judge Bench while discussing the provisions of Article 335
also observed that there were certain services and posts where
either on account of the nature of duties attached to them or
91
the level in the hierarchy at which they stood, merit alone
counts. In such situations, it cannot be advised to provide for
reservations. In the paragraph following, the position was
made even more clear when Their Lordships observed that
they were of the opinion that in certain services in respect of
certain posts, application of rule of reservation may not be
advisable in regard to various technical posts including posts
in superspeciality in medicine, engineering and other scientific
and technical posts.”
(emphasis supplied)
The Court directed the Union of India to take appropriate steps
in accordance with views expressed in the case of Dr. Preeti Srivastava
and Anr. v. State of M.P. and Ors. (1999) 7 SCC 120.
40.In Re The Kerala Education Bill (supra), it was opined that
minority could not ask for aid and recognition of educational
institution, when such institutions are recognized it would be open to
make the institution retaining its character as effective as an
educational institution without destroying its minority character for
the purpose as enshrined in Article 30. The institution has to be an
effective vehicle of education for all concerned.
41.In Gandhi Faizeam College, Shahjahanpur (supra), it was
opined that regulation which imposes restrictions is bad; but
regulation which facilitates is good. We find that in Frank Anthony
Public School Employees' Association (supra) it has been observed that
institution has to be an effective vehicle of education for the minority
community or other persons who resort to it. There cannot be any
92
complaint of invasion of the fundamental right to administer the
institution when it denies the members of its staff the opportunity to
achieve the very object. The Court observed that minorities have no
right to maladminister. The notifications issued, amendment made to
Section 10D of the Act of 1956 and regulations framed by MCI and
similar provisions for dental courses providing for NEET cannot be
said to be impinging upon the rights of the minority and the provisions
of the Act and regulations framed by MCI under the Act of 1956, in
DCI Act and regulations are required to be observed by each and every
institution. The regulatory measures under the Act/ Regulations
cannot be said to be averse to the interest of such institutions, and
such reasonable measures can be carved out. They do not impinge
upon the rights of institutions guaranteed under Articles 14, 19(1)(g),
25 and 30 of the Constitution of India.
42.In T.M.A. Pai Foundation (supra), this Court opined that State
maintained or aided educational institutions, whether established by
the Government or the majority or a minority community cannot deny
admission to a citizen on the grounds only of religion, race, caste or
language. While considering the issue In Re The Kerala Education Bill
(supra), it was observed that the right of the private training colleges
to admit students of their choice was severely restricted. It further
observed that the right under Article 30(1) is not so absolute as to
93
prevent the State from making any regulation whatsoever. The
Government cannot be prevented from framing regulations that are in
the national interest. This Court observed that it is difficult to
comprehend that right to the religious or linguistic minorities are
given by the Constitution, which would enable them to establish and
administer educational institutions in a manner to conflict with the
other Parts of the Constitution. There is no reason why conditions for
the welfare of students and teachers should not be made, but 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. The law of the land
includes rules and regulations that must apply equally to the majority
as well as minority institutions. The minority institutions must be
allowed to do what nonminority is permitted to do. They have to
comply with the conditions of recognition, which cannot be such as to
whittle down the right guaranteed under Article 30 of the
Constitution.
43.In Brahmo Samaj Education Society (supra), it was held that
State could impose necessary conditions for proper maintenance of
standards of education and to check maladministration.
94
44.On behalf of the appellants, it was submitted that individual
autonomy is the concern of any Government. There should not be
interference to defeat the rights conferred by the Constitution.
Reliance has been placed on Gobind v. State of Madhya Pradesh
(supra) in which this Court held:
“20. There can be no doubt that the makers of our Constitution
wanted to ensure conditions favourable to the pursuit of
happiness. They certainly realized as Brandeis, J. said in his
dissent in Olmstead v. United States, 277 US 438, 471, the
significance of man’s spiritual nature, of his feelings and of his
intellect and that only a part of the pain, pleasure, satisfaction of
life can be found in material things and therefore they must be
deemed to have conferred upon the individual as against the
Government a sphere where he should be let alone.
21. “The liberal individualist tradition has stressed, in particular,
three personal ideals, to each of which corresponds a range of
‘private affairs’. The first is the ideal of personal relations; the
second, the Lockean ideal of the politically free man in a minimally
regulated society; the third, the Kantian ideal of the morally
autonomous man, acting on principles that he accepts as rational.
[See Benn, “Privacy, Freedom and Respect for Persons” in J.
Pennock & J. Chapman. Eds., Privacy, Nomos XIII, 1, 1516].”
23. Individual autonomy, perhaps the central concern of any
system of limited Government, is protected in part under our
Constitution by explicit constitutional guarantees. In the
application of the Constitution our contemplation cannot only be
of what has been but what may be. Time works changes and
brings into existence new conditions. Subtler and far reaching
means of invading privacy will make it possible to be heard in the
street what is whispered in the closet. Yet, too broad a definition of
privacy raises serious questions about the propriety of judicial
reliance on a right that is not explicit in the Constitution. Of
course, privacy primarily concerns the individual. It therefore
relates to and overlaps with the concept of liberty. The most
serious advocate of privacy must confess that there are serious
problems of defining the essence and scope of the right. Privacy
interest in autonomy must also be placed in the context of other
rights and values.
24. Any right to privacy must encompass and protect the personal
intimacies of the home, the family, marriage, motherhood,
procreation and child rearing. This catalogue approach to the
95
question is obviously not as instructive as it does not give
analytical picture of the distinctive characteristics of the right of
privacy. Perhaps, the only suggestion that can be offered as
unifying principle underlying the concept has been the assertion
that a claimed right must be a fundamental right implicit in the
concept of ordered liberty.
25. Rights and freedoms of citizens are set forth in the
Constitution in order to guarantee that the individual, his
personality, and those things stamped with his personality shall
be free from official interference except where a reasonable basis
for intrusion exists. “Liberty against Government” a phrase coined
by Professor Corwin expresses this idea forcefully. In this sense,
many of the fundamental rights of citizens can be described as
contributing to the right to privacy.
26. As Ely says:
There is nothing to prevent one from using the word ‘privacy’ to
mean the freedom to live one’s life without governmental
interference. But the Court obviously does not so use the term.
Nor could it, for such a right is at stake in every case. [See The
Wage of Crying Wolf: A Comment on Roe v. Wade, 82 Yale LJ 920,
932].”
45.The reliance has also been placed on K.S. Puttaswamy and Anr.
v. Union of India and Ors., 2017 (10) SCC 1, the decision relating to
privacy in which this Court held:
“351. The Constitution of any country reflects the aspirations and
goals of the people of that country voiced through the language of
the few chosen individuals entrusted with the responsibility of
framing its Constitution. Such aspirations and goals depend upon
the history of that society. History invariably is a product of
various forces emanating from religious, economic, and political
events
1
. The degree of refinement of the Constitution depends
upon the wisdom of the people entrusted with the responsibility of
framing the Constitution. The constitution is not merely a
document signed by 284 Members of the Constituent Assembly. It
is a politically sacred instrument created by men and women who
risked lives and sacrificed their liberties to fight alien rulers and
secured freedom for our people, not only of their generation but
1 However, various forced which go into the making of history are dynamic. Those who
are entrusted with the responsibility of the working of the Constitution must necessarily
keep track of the dynamics of such forces. Evolution of science and growth of technology
is another major factor in the modern world which is equally a factor to be kept in mind
to successfully work the Constitution.
96
generations to follow. The Constitution cannot be seen as a
document written in ink to replace one legal regime by another. It
is a testament created for securing the goals professed in
Preamble
2
. Part III of the Constitution is incorporated to ensure
the achievement of the objects contained in the Preamble
3
. "We the
People" of this country are the intended beneficiaries
4
of the
Constitution. It must be seen as a document written in the blood
of innumerable martyrs of Jalianwala Bagh and the like. Man is
not a creature of the State. Life and liberty are not granted by the
Constitution. Constitution only stipulates the limitations on the
power of the State to interfere with our life and liberty. Law is
essential to enjoy the fruits of liberty; it is not the source of liberty
and emphatically not the exclusive source.”
46.It was argued that certain colleges have produced doctors of
renowned fame, and they are an asset for India. There is no doubt
about it that doctors of international fame have been produced by
various institutions. They are an asset not only for India but also for
the entire humanity. They are pioneers in various fields of medical
science such as Oncology, Surgery, and other branches of medical
science. But, when it comes to the eradication of the malpractices
that have crept into the system, we have to take into consideration
larger interest of the education countrywide. The NEET has been
2 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
“91. … Our Preamble outlines the objectives of the whole Constitution. It
expresses “what we had thought of dreamt for so long”.” (SCC p.323, para 91).
3 Kerala Education Bill, 1957, In re, AIR 1958 SC 956
“5. … To implement and fortify these supreme purposes set forth in the Preamble,
Part III of our Constitution has provided for us certain fundamental rights.” (AIR p. 965,
para 5).
4 Bidi Supply Co. v. Union of India, AIR 1956 SC 479
“23. After all, for whose benefit was the Constitution enacted? What was the point
of making all this bother about fundamental rights? I am clear that the Constitution is not
for the exclusive benefit of governments and States; it is only for lawyers and politicians
and officials and those highly placed. It also exists for the common man, for the poor
and the humble, for those who have businesses at stake, for the “butcher, the baker and
the candlestick maker”. It lays down for this land “a rule of law” as understood in the
free democracies of the world. It constitutes India into a Sovereign Republic and
guarantees in every page rights and freedom to the side by side and consistent with the
overriding power of the State to act for the common good of all.” (AIR p.487, para 23)
[For convenience, citations have been renumbered.]
97
prescribed by the Legislature in the larger public interest that has to
prevail. We find the provisions to be reasonable conditions of
recognition/ affiliation are binding for the very existence of all such
institution whether they are run by majority or minority failing which
they cannot exists and impart education. The conditions are
reasonable and cannot be said to be taking away any of the
constitutional rights of minority institutions, they are reasonable, fair
and intended to bring transparency in the professional education
imparted by institutions. They are applicable for all institutions alike
minorities are not placed on a disadvantageous platform.
47.There is no doubt as to the concept of limited Government and
least interference is welcomed, but in which field and to what extent
balancing with the larger public and national interest is required. The
individual autonomy, rights, and obligations are to be free from official
interference except where the rational basis for intrusion exists. The
Constitution provides a limitation on the power of the State to
interfere with life, liberty, and rights, however, the concept of limited
government cannot be extended to a level when it defeats the very
national interest. The maladies with which professional education
suffers in this country are writ large. The regulatory framework
created by the MCI/ DCI is concomitant of conditions, affiliation and
recognition, and providing central examination in the form of NEET
98
cannot be said to be violative of the rights under Articles 19(1)(g) and
30. The regulatory framework is not restrictive, but caters to the
effective enjoyment of the rights conferred under the aforesaid
provisions. The provisions qualify the doctrine of proportionality
considered in Modern Dental College and Research Centre (supra).
What has been held therein for State level examination holds good for
NEET also.
48.The prescription of NEET is definitely in order to improve the
medical education, corelated to the improvement of public health,
thus, it is a stepin furtherance of the duty of the State enshrined in
the Directive Principles of the State Policy contained in Article 47 of
the Constitution of India. Similarly, Article 46 aims at promotion of
educational and economic interests of Scheduled Castes, Scheduled
Tribes, and other weaker sections. By prescription of one equivalence
examination of NEET, the interest of their merit is also equally
protected and its aims of preventing various malpractices, which crept
into system and prevent economic exploitation by selling seats with
which malady the professional medical education system suffered.
Article 51A(j) deals with the duty to strive towards excellence in all
spheres of individual and collective activity so that the nation
constantly rises to higher levels of endeavour and achievement. For
that purpose, recognition of merit is necessary, and one has to be
99
given a full opportunity in pursuit of his/her aim. The prescription of
NEET is to provide equal opportunity and level launching platform to
an individual to perform his duty as enshrined under Article 51A(j).
Thus, we find that there is no violation of the aforesaid provisions as
argued by appellants, rather action is in furtherance of the
constitutional aims and directions to achieve intendment of Article
51A(j) and is in the national interest.
49.In Secretary, Malankara Syrian Catholic College v. T. Jose and
Ors., (2007) 1 SCC 386, Court considered T.M.A. Pai Foundation
(supra), and held that all laws made by the State to regulate the
administration of educational institutions and grant of aid will apply
to minority educational institutions also, but dilution of right under
Article 30 is not permissible. The right under Article 30 is not above
the law. The regulations or conditions concerning the welfare of the
students and teachers should be made applicable to provide a proper
academic atmosphere.
50.In P.A. Inamdar (supra), the court opined that activities of
education are charitable. The educational institutions, both of a non
minority and minority character, can be regulated and controlled so
that they do not indulge in selling seats of learning to make money.
They can be allowed to generate such funds as would be reasonably
required to run the institute and for its further growth. In P.A.
100
Inamdar (supra), this Court noted the difference between professional
and nonprofessional educational institutions. It observed that
professional educational institutions constitute a class by themselves
and are distinguished from educational institutions imparting non
professional education. With respect to unaided minority educational
institutions, Article 30 of the Constitution does not come in the way of
the State stepping in for the purpose of securing transparency
and recognition of merit in the matter of admissions, and the
conditions of recognition are binding on such institutions. In P.A.
Inamdar (supra), the Court opined that the admissions based on merit
were in the national interest and strengthening the national welfare.
51.In Ahmedabad St. Xavier's College Society (supra), the Court held
that minority institutions have a right to admit students of their
choice subject to reasonable restriction for the academic qualification
and the regulation, which will serve the interest of the students, can
be imposed for ensuring efficiency and fairness. Education is vital for
the nation; it develops the ethos of the nation. Regulations are
necessary to see that there are no divisive or disintegrating forces in
administration. It observed that it is not reasonable to claim that
minority institutions will have complete autonomy. Some checks may
be necessary and will serve the academic needs of the institution. A
correlative duty of good administration is attached to the right to
101
administer educational institution. It was also opined in Ahmedabad
St. Xavier's College Society (supra) in paragraph 19 quoted above that
the State can prescribe regulations to ensure the excellence of the
institution that does not militate against the right of the minority to
administer the institutions. Such Regulations are not restrictions on
the substance of the right, which is guaranteed; they secure the
proper functioning of the institution. The institution cannot be
allowed to fall below the standards of excellence under the guise of the
exclusive right of the management. Minorities are as much part of the
nation as the majority, and anything that impinges upon national
interest must necessarily in its ultimate operation affect the interests
of all.
52.It was further opined in Ahmedabad St. Xavier's College Society
(supra) in paragraph 94 quoted above that there are conditions of
affiliation or recognition of an educational institution, it is implicit in
the request for grant thereof that the educational institution would
abide by the regulations which are made by the authority granting
affiliation or recognition. When Government and MCI/DCI or
concerned Universities grant affiliation and recognition, the
institutions are bound by the conditions prescribed for affiliation and
recognition. It has also been observed that recognition or affiliation
creates an interest in the university to ensure that the educational
102
institution is maintained for the purpose intended and any Regulation
which will subserve or advance that purpose will be reasonable and no
minority institution established and administered by a religious or
linguistic minority can claim recognition or affiliation without
submitting to those regulations.
53.In view of the law laid down in T.M.A. Pai Foundation (supra), it
is apparent that NEET/common entrance test is a devise to
standardise and computing equivalence between different kinds of
qualifications. It does not interfere with the rights of the unaided
minority institutions as it has been imposed in national interest
considering the malpractices of granting illegal admission by virtually
selling the seats in derogation to rights of meritorious students. The
charitable activity of education became a saleable commodity and
prerogative of wealthy persons and poor students were forced to get
education funded from Banks making it difficult for them to come out
of tentacular octave of interest. They are exploited in bud before they
bloom into flower. The illreputation developed by MCI forced to
change its entire structure. The national interest requires further
improvement in the system to eradicate evils from the system. The
situation is still grim and require to be dealt with firm hand and steely
determination.
103
54.In Dr. Preeti Srivastava and Anr. v. State of M.P. and Ors. (supra),
it was opined that at super speciality level there cannot be any
reservation or lowering of the minimum qualifying marks. In Modern
Dental College and Research Centre (supra), considering various
malpractices, it was observed that education is being used as
exploitative financial device. Education is not a commodity to be
purchased by money power and deserving one as per merit cannot be
deprived of the right to obtain it. The State cannot remain a mute
spectator, and it must step in to prevent exploitation.
55.Thus, it is apparent that the provisions in question which have
been incorporated in the Act relating to Medical/Dental education, the
Government, MCI and DCI cannot be said to be an invasion of the
fundamental rights. The intendment is to ensure fairness in the
selection, recognition of merit, and the interests of the students. In the
national interest, educational institutions are basically for a charitable
purpose. By and large, at present education is devoid of its real
character of charity, it has become a commodity. To weed out evils
from the system, which were eating away fairness in admission
process, defeating merit and aspiration of the common incumbent
with no means, the State has the right to frame regulatory regime for
aided/ unaided minority/ private institutions as mandated by
104
Directives Principles, Articles 14 and 21 of the Constitution. The first
step has been taken to weed out the evils from the system, and it
would not be in the national interest to step back considering the
overall scenario. If we revert to the old system, posterity is not going
to forgive us. Still, complaints are galore that merit is being ignored
by private institutions; there is still a flood of litigation. It seems that
unfettered by a large number of regulatory measures, unscrupulous
methods and malpractices are yet being adopted. Building the nation
is the main aspect of education, which could not be ignored and
overlooked. They have to cater to national interest first, then their
interest, more so, when such conditions can be prescribed for
recognition, particularly in the matter of professional education.
56.In St. Stephen's College v. University of Delhi (supra), it was held
that there has to be balancing of interest of rights of minorities. It was
observed that 50% of the annual admission has to be given to the
members of communities other than the minority community on the
basis of merit. Regulations that serve the interest in standards of
education amongst the recognised institutions could validly be made.
Such general patterns and standards are the need, and such
regulation shall not have the effect of depriving the right of minorities
to educate their children in their own institution.
105
57.The learned counsel argued that it is open to some of the
institutions to impose higher standards of merit. Firstly, conditions of
affiliation are binding apart from that, we find that when it comes to
national standards and the objects sought to be achieved by NEET, to
conduct individual examinations by some institutions cannot be
permitted. The system is not yet out of clutches of unscrupulous
devices and dubious means are adopted to defeat merit, the interest of
education would further suffer and very purpose of centralised
examination would be defeated. It is not possible to prescribe further
examination over and above NEET that cannot be said to be workable,
no exemption can be granted from NEET, considering the objective
with which it has been introduced. We find that the uniform Entrance
Examination cannot be said to be unreasonable regulatory framework.
Considering the terms and conditions for affiliation and recognition for
professional medical and such other professional courses are binding,
and no relaxation can be permitted in the conditions.
58.Thus, we are of the opinion that rights under Articles 19(1)(g)
and 30 read with Articles 25, 26 and 29(1) of the Constitution of India
do not come in the way of securing transparency and recognition of
merits in the matter of admissions. It is open to regulating the course
of study, qualifications for ensuring educational standards. It is open
to imposing reasonable restrictions in the national and public interest.
106
The rights under Article 19(1)(g) are not absolute and are subject to
reasonable restriction in the interest of the student's community to
promote merit, recognition of excellence, and to curb the malpractices.
Uniform Entrance Test qualifies the test of proportionality and is
reasonable. The same is intended to check several maladies which
crept into medical education, to prevent capitation fee by admitting
students which are lower in merit and to prevent exploitation,
profiteering, and commercialisation of education. The institution has
to be a capable vehicle of education. The minority institutions are
equally bound to comply with the conditions imposed under the
relevant Acts and Regulations to enjoy affiliation and recognition,
which apply to all institutions. In case they have to impart education,
they are bound to comply with the conditions which are equally
applicable to all. The regulations are necessary, and they are not
divisive or disintegrative. Such regulatory measures enable
institutions to administer them efficiently. There is no right given to
maladminister the education derogatory to the national interest. The
quality of medical education is imperative to subserve the national
interest, and the merit cannot be compromised. The Government has
the right for providing regulatory measures that are in the national
interest, more so in view of Article 19(6) of the Constitution of India.
107
59.The rights of the religious or linguistic minorities under Article
30 are not in conflict with other parts of the Constitution. Balancing
the rights is constitutional intendment in the national and more
enormous public interest. Regulatory measures cannot be said to be
exceeding the concept of limited governance. The regulatory measures
in question are for the improvement of the public health and is a step,
in furtherance of the directive principles enshrined in Articles 47 and
51(A)(j) and enable the individual by providing full opportunity in
pursuance of his objective to excel in his pursuit. The rights to
administer an institution under Article 30 of the Constitution are not
above the law and other Constitutional provisions. Reasonable
regulatory measures can be provided without violating such rights
available under Article 30 of the Constitution to administer an
institution. Professional educational institutions constitute a class by
themselves. Specific measures to make the administration of such
institutions transparent can be imposed. The rights available under
Article 30 are not violated by provisions carved out in Section 10D of
the MCI Act and the Dentists Act and Regulations framed by
MCI/DCI. The regulatory measures are intended for the proper
functioning of institutions and to ensure that the standard of
education is maintained and does not fall low under the guise of an
exclusive right of management to the extent of maladministration. The
108
regulatory measures by prescribing NEET is to bring the education
within the realm of charity which character it has lost. It intends to
weed out evils from the system and various malpractices which
decayed the system. The regulatory measures in no way interfere with
the rights to administer the institution by the religious or linguistic
minorities.
60.Resultantly, we hold that there is no violation of the rights of the
unaided/aided minority to administer institutions under Articles 19(1)
(g) and 30 read with Articles 25, 26 and 29(1) of the Constitution of
India by prescribing the uniform examination of NEET for admissions
in the graduate and postgraduate professional courses of medical as
well as dental science. The provisions of the Act and regulation
cannot be said to be ultra vires or taking away the rights guaranteed
under the Constitution of India under Article 30(1) read with Articles
19(1)(g), 14, 25, 26 and 29(1). Accordingly, the transferred cases,
appeal, and writ petitions are disposed of.
No costs.
................................J.
[ARUN MISHRA]
................................J.
[VINEET SARAN]
................................J.
[M.R. SHAH]
NEW DELHI;
APRIL 29, 2020.
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