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CASE NO.:

Appeal (civil) 5041 of 2005

PETITIONER:

P.A. Inamdar & Ors.

RESPONDENT:

State of Maharashtra & Ors.

DATE OF JUDGMENT: 12/08/2005

BENCH:

R.C.LAHOTI CJI & Y.K.SABHARWAL & D.M.DHARMADHIKARI & ARUN KUMAR & G.P.MATHUR & TARUN CHATTER

JEE & P.K.BALASUBRAMANYAN

JUDGMENT:

JUDGMENT

DELIVERED BY:

R.C.LAHOTI,CJI

(Arising out of Special Leave Petition (C) No.9932 of 2004)

WITH

Civil Appeal No. 5042 of 2005 (@ SLP(C) No.9935/2004); Civil

Appeal No. 5043 of 2005 (@ SLP(C) No. 9936/2004); W.P. (C)

No. 276/2004; W.P. (C) No. 330/2004; W.P. (C) No. 357/2004;

I.A. NOS. 26, 27, 30, 31 AND 33 IN W.P. (C) No.350/1993; Civil

Appeal No. 5035 of 2005 (@ SLP(C) No.11244/2004; W.P.(C)

No. 302/204; W.P. (C) No. 347/2004; W.P. (C) No. 349/2004;

W.P. (C) No. 350/2004; W.P. (C) No. 387/2004; W.P. (C) No.

423/2004; W.P. (C) No. 480/2004; W.P. (C) No. 19/2005; W.P.

(C) No. 261/2004; W.P. (C) No. 265/2004; W.P. (C) No.

380/2004; W.P. (C) No. 358/2004; W.P. (C) No. 359/2004; W.P.

(C) No. 360/2004; W.P. (C) No.361/2004; W.P. (C) No.

362/2004; W.P. (C) No. 363/2004; C.A. No. 5257-5258/2004;

C.A. No. 5259/2004; C.A. No. 5260-5261/2004; C.A. No. 5262-

5263/2004; C.A. No. 5996/2004; C.A. No. 5992/2004; C.A. No.

5997-5998/2004; C.A. No. 7969-7971/2004; C.A. No.

7972/2004; C.A. No. 7973/2004; C.A. No. 7974/2004; C.A. No.

7975/2004; W.P. (C) No. 371/2004; W.P. (C) No.

368/2004; C.A. No. 7117-7119/2004; C.A. No. 7124-

7126/2004; CONMT.PET. (CIVIL) No. 561-563/2004 In C.A. No.

7117-7119/2004; CONMT. PET. (Civil) No. 564-566/2004 in

C.A. No. 7124-7126/2004; W.P. (C) No. 251/2004; Civil Appeal

No. 5036 of 2005 (@ SLP (C) No. 17464/2004); Civil Appeal No.

5037 of 2005 (@ SLP (C) No. 17549/2004); W.P. (C) No.

318/2004; Civil Appeal No. 5038 of 2005 (@ SLP(C) No.

17930/2004; Civil Appeal No. 5039 of 2005 (@ SLP (C) No.

17931/2004); Civil Appeal No. 5040 of 2005 (@ SLP (C) No.

17326/2003); W.P. (C) No. 386/2004; W.P. (C) No. 397/2004

R.C. Lahoti, CJI

Preliminary

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Leave granted in all SLPs.

A Coram of 11 Judges, not a common feature in the

Supreme Court of India, sat to hear and decide T.M.A.Pai

Foundation v. State of Karnataka (2002) 8 SCC 481

(hereinafter 'Pai Foundation', for short). It was expected that

the authoritative pronouncement by a Bench of such strength on

the issues arising before it would draw a final curtain on those

controversies. The subsequent events tell a different story. A

learned academician observes that the 11-Judge Bench decision

in Pai Foundation is a partial response to some of the

challenges posed by the impact of Liberalisation, Privatisation

and Globalisation (LPG); but the question whether that is a

satisfactory response, is indeed debatable. It was further

pointed out that 'the decision raises more questions than it has

answered' (see : Annual Survey of Indian Law, 2002 at p.251,

254). The Survey goes on to observe "the principles laid down

by the majority in Pai Foundation are so broadly formulated

that they provide sufficient leeway to subsequent courts in

applying those principles while the lack of clarity in the judgment

allows judicial creativity \005" (ibid at p.256).

The prophecy has come true and while the ink on the

opinions in Pai Foundation was yet to dry, the High Courts

were flooded with writ petitions, calling for settlements of

several issues which were not yet resolved or which propped on

floor, post Pai Foundation. A number of Special Leave

Petitions against interim orders passed by High Courts and a few

writ petitions came to be filed directly in this Court. A

Constitution Bench sat to interpret the 11-Judge Bench decision

in Pai Foundation which it did vide its judgment dated

14.8.2003 (reported as - Islamic Academy of Education &

Anr. v. State of Karnataka & Ors., (2003) 6 SCC 697;

"Islamic Academy" for short). The 11 learned Judges

constituting the Bench in Pai Foundation delivered five

opinions. The majority opinion on behalf of 6 Judges was

delivered by B.N. Kirpal, CJ. Khare, J (as His Lordship then was)

delivered a separate but concurring opinion, supporting the

majority. Quadri, J, Ruma Pal, J and Variava, J (for himself and

Bhan, J) delivered three separate opinions partly dissenting from

the majority. Islamic Academy too handed over two opinions.

The majority opinion for 4 learned Judges has been delivered by

V.N. Khare, CJ. S.B. Sinha, J, has delivered a separate opinion.

The events following Islamic Academy judgment show

that some of the main questions have remained unsettled even

after the exercise undertaken by the Constitution Bench in

Islamic Academy in clarification of the 11-Judge Bench

decision in Pai Foundation. A few of those unsettled questions

as also some aspects of clarification are before us calling for

settlement by this Bench of 7 Judges which we hopefully propose

to do.

Pai Foundation and Islamic Academy have set out the

factual backdrop of the issues leading to the formulation of 11-

Judge and 5-Judge Benches respectively. For details thereof a

reference may be made to the reported decisions. A brief

summary of the past events, highlighting the issues as they have

travelled in search of resolution would be apposite.

II

BACKDROP

Education used to be charity or philanthropy in good old

times. Gradually it became an 'occupation'. Some of the

Judicial dicta go on to hold it as an 'industry'. Whether, to

receive education, is a fundamental right or not has been

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debated for quite some time. But it is settled that establishing

and administering of an educational institution for imparting

knowledge to the students is an occupation, protected by Article

19(1)(g) and additionally by Article 26(a), if there is no element

of profit generation. As of now, imparting education has come

to be a means of livelihood for some professionals and a mission

in life for some altruists.

Education has since long been a matter of litigation. Law

reports are replete with rulings touching and centering around

education in its several aspects. Until Pai Foundation, there

were four oft quoted leading cases holding the field of education.

They were Unni Krishnan v. State of Andhra Pradesh (1993)

1 SCC 645, St. Stephen's College v. University of Delhi

(1992)1 SCC 558, Ahmedabad St. Xavier's College Society

v. State of Gujarat (1974)1 SCC 717 and In Re: Kerala

Education Bill, 1957, (1958) SCR 995. For convenience sake,

these cases will be referred to as Unni Krishnan, St.

Stephen's, St. Xavier's and Kerala Education Bill

respectively. All these cases amongst others came up for the

consideration of this Court in Pai Foundation.

Correctness of the decision in St. Stephen's was doubted

during the course of hearing of Writ Petition No. 350 of 1993

filed by Islamic Academy. As St. Stephen's is a

pronouncement of 5-Judge Bench, the matter was directed to

be placed before 7-Judge Bench.

An event of constitutional significance which had already

happened, was taken note of by the Constitution Bench.

"Education" was a State Subject in view of the following Entry 11

placed in List II ___ State List:-

"11. Education including universities,

subject to the provisions of entries 63,

64, 65 and 66 of List I and entry 25 of

List III."

By the Constitution (42nd Amendment) Act 1976, the

abovesaid Entry was directed to be deleted and instead Entry 25

in List III \026 Concurrent List, was directed to be suitably amended

so as to read as under:-

"25. Education, including technical

education, medical education and

universities, subject to the provisions of

entries 63, 64, 65 and 66 of List I;

vocational and technical training of

labour."

The 7-Judge Bench felt that the matter called for hearing

by a 11-Judge Bench. The 11-Judge Bench felt that it was not

bound by the ratio propounded in Kerala Education Bill and

St. Xavier's and was free to hear the case in wider perspective

so as to discern the true scope and interpretation of Article 30(1)

of the Constitution and make an authoritative pronouncement.

Eleven Questions and Five Heads of Issues in Pai

Foundation

In Pai Foundation, 11 questions were framed for being

answered. Detailed submissions were made centering around

the 11 questions. The Court dealt with the questions by

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classifying the discussion under the following five heads:

1. Is there a fundamental right to set up educational

institutions and if so, under which provision?

2. Does Unni Krishnan require reconsideration?

3. In case of private institutions, can there be government

regulations and, if so, to what extent?

4. In order to determine the existence of a religious or

linguistic minority in relation to Article 30, what is to be

the unit __ the State or the country as a whole?

5. To what extent can the rights of aided private minority

institutions to administer be regulated?

Having dealt with each of the abovesaid heads, the Court

through the majority opinion expressed by B.N. Kirpal, CJ,

recorded answers to the 11 questions as they were framed and

posed for resolution. The questions and the answers as given by

the majority are set out hereunder:

"Q.1. What is the meaning and content of the expression

"minorities" in Article 30 of the Constitution of India?

A. Linguistic and religious minorities are covered by the

expression "minority" under Article 30 of the Constitution. Since

reorganization of the States in India has been on linguistic lines,

therefore, for the purpose of determining the minority, the unit

will be the State and not the whole of India. Thus, religious and

linguistic minorities, who have been put on a par in Article 30,

have to be considered Statewise.

Q.2. What is meant by the expression "religion" in Article

30(1)? Can the followers of a sect or denomination of a

particular religion claim protection under Article 30(1) on the

basis that they constitute a minority in the State, even though

the followers of that religion are in majority in that State?

A. This question need not be answered by this Bench; it will be

dealt with by a regular Bench.

Q.3 (a) What are the indicia for treating an educational

institution as a minority educational institution? Would an

institution be regarded as a minority educational institution

because it was established by a person(s) belonging to a

religious or linguistic minority or its being administered by a

person(s) belonging to a religious or linguistic minority?

A. This question need not be answered by this Bench; it will be

dealt with by a regular Bench.

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

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scope for merit-based selection is practically nil, cannot be

regulated by the State or university concerned, except for

providing the qualifications and minimum conditions of eligibility

in the interest of academic standards.

[emphasis by us]

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.

[emphasis by us]

A minority institution does not cease to be so, the moment

grant-in-aid is received by the institution. An aided minority

educational institution, therefore, would be entitled to have the

right of admission of students belonging to the minority group

and at the same time, would be required to admit a reasonable

extent of non-minority students, so that the rights under Article

30(1) are not substantially impaired and further the citizens'

rights under Article 29(2) are not infringed. What would be a

reasonable extent, would vary from the types of institution, the

courses of education for which admission is being sought and

other factors like educational needs. The State Government

concerned has to notify the percentage of the non-minority

students to be admitted in the light of the above observations.

Observance of inter se merit amongst the applicants belonging

to the minority group could be ensured. In the case of aided

professional institutions, it can also be stipulated that passing of

the common entrance test held by the State agency is necessary

to seek admission. As regards non-minority students who are

eligible to seek admission for the remaining seats, admission

should normally be on the basis of the common entrance test

held by the State agency followed by counselling wherever it

exists.

Q.5(a) Whether the minorities' rights to establish and

administer educational institutions of their choice will include the

procedure and method of admission and selection of students?

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 mal-administration. 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) Whether the minority institutions' right of admission of

students and to lay down procedure and method of admission, if

any, would be affected in any way by the receipt of State aid?

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A. While giving aid to professional institutions, it would be

permissible for the authority giving aid to prescribe bye __ rules

or regulations, the conditions on the basis of which admission

will be granted to different aided colleges by virtue of merit,

coupled with the reservation policy of the State qua non-minority

students. The merit may be determined either through a

common entrance test conducted by the university or the

Government concerned followed by counselling, or on the basis

of an entrance test conducted by the individual institutions \026 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.

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 day-to-day management, like

the appointment of staff, teaching and non-teaching, and

administrative control over them, the management should have

the freedom and there should not be any external controlling

agency. However, a rational procedure for the selection of

teaching staff and for taking disciplinary action has to be evolved

by the 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.

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.

Q.6(a) Where can a minority institution be operationally

located? Where a religious or linguistic minority in State A

establishes an educational institution in the said State, can such

educational institution grant preferential admission/reservations

and other benefits to members of the religious/linguistic group

from other States where they are non-minorities?

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A. This question need not be answered by this Bench; it will be

dealt with by a regular Bench.

Q. 6. (b) Whether it would be correct to say that only the

members of that minority residing in State A will be treated as

the members of the minority vis-`-vis such institution?

A. This question need not be answered by this Bench; it will be

dealt with by a regular Bench.

Q.7. Whether the member of a linguistic non-minority in one

State can establish a trust/society in another State and claim

minority status in that State?

A. This question need not be answered by this Bench; it will be

dealt with by a regular Bench.

Q.8. Whether the ratio laid down by this Court in St. Stephen's

case (St. Stephen's College v. University of Delhi, (1992) 1

SCC 558) is correct? If no, what order?

A. The basic ratio laid down by this Court in St. Stephen's

College case (supra) is correct, as indicated in this judgment.

However, rigid percentage cannot be stipulated. It has to be left

to authorities to prescribe a reasonable percentage having

regard to the type of institution, population and educational

needs of minorities.

Q. 9. Whether the decision of this Court in Unni Krishnan, J.P.

v. State of A.P., (1993) 1 SCC 645 (except where it holds that

primary education is a fundamental right) and the scheme

framed thereunder require reconsideration/modification and if

yes, what?

A. The scheme framed by this Court in Unni Krishnan case

(supra) and the direction to impose the same, except where it

holds that primary education is a fundamental right, is

unconstitutional. However, the principle that there should not be

capitation fee or profiteering is correct. Reasonable surplus to

meet cost of expansion and augmentation of facilities does not,

however, amount to profiteering.

Q. 10. Whether the non-minorities have the right to establish

and administer educational institution under Articles 21 and

29(1) read with Articles 14 and 15(1), in the same manner and

to the same extent as minority institutions?

and

Q. 11. What is the meaning of the expressions "education" and

"educational institutions" in various provisions of the

Constitution? Is the right to establish and administer

educational institutions guaranteed under the Constitution?

A. The expression "education" in the articles of the Constitution

means and includes education at all levels from the primary

school level up to the postgraduate level. It includes

professional education. The expression "educational institutions"

means institutions that impart education, where "education" is

as understood hereinabove.

The right to establish and administer educational

institutions is guaranteed under the Constitution to all citizens

under Articles 19(1)(g) and 26, and to minorities specifically

under Article 30.

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All citizens have a right to establish and administer

educational institutions under Articles 19(1)(g) and 26, but this

right is subject to the provisions of Articles 19(6) and 26(a).

However, minority institutions will have a right to admit students

belonging to the minority group, in the manner as discussed in

this judgment."

The majority led by Kirpal, CJ, in Pai Foundation did say

that the expression "minorities" in Article 30 of the Constitution

of India, whether linguistic or religious, has to be determined by

treating the State and not the whole of India as unit. Questions

such as: (i) what is religion, (ii) what is the indicia for

determining if an educational institution is a minority institution,

(iii) whether a minority institution can operate extra-territorially

extending its activities into such states where the minority

establishing and administering the institution does not enjoy

minority status, (iv) the content and contour of minority by

reference to territories, were not answered in Pai Foundation

and were left to be determined by the regular Benches in

individual cases to be heard after the decision in Pai

Foundation. We also do not propose to involve ourselves by

dealing with these questions except to the extent it may become

necessary to do so for the purpose of answering the questions

posed before us.

Pai Foundation explained in Islamic Academy

Pai Foundation Judgment was delivered on 31.10.2002.

The Union of India, various State Governments and the

Educational Institutions, each understood the majority judgment

in its own way. The State Governments embarked upon

enacting laws and framing the regulations, governing the

educational institutions in consonance with their own

understanding of Pai Foundation. This led to litigation in

several Courts. Interim orders passed therein by High Courts

came to be challenged before this Court. At the hearing, again

the parties through their learned counsel tried to interpret the

majority decision in Pai Foundation in different ways as it

suited them. The parties agreed that there were certain

anomalies and doubts, calling for clarification. The persons

seeking such clarifications were unaided professional educational

institutions, both minority and non-minority. The Court

formulated four questions as arising for consideration in view of

the rival submissions made before the Court in Islamic

Academy:

"(1) whether the educational institutions are entitled to fix their

own fee structure;

(2) whether minority and non-minority educational institutions

stand on the same footing and have the same rights;

(3) whether private unaided professional colleges are entitled

to fill in their seats, to the extent of 100% , and if not, to

what extent; and

(4) whether private unaided professional colleges are entitled

to admit students by evolving their own method of

admission."

We could attempt at formulating the gist of the answers

given by the Constitution Bench of the Court as under:

(1) Each minority institution is entitled to have its own fee

structure subject to the condition that there can be no

profiteering and capitation fees cannot be charged. A provision

for reasonable surplus can be made to enable future expansion.

The relevant factors which would go into determining the

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reasonability of a fee structure, in the opinion of majority, are:

(i) the infrastructure and facilities available, (ii) the investments

made, (iii) salaries paid to the teachers and staff, (iv) future

plans for expansion and betterment of the institution etc.

S.B. Sinha, J, defined what is 'capitation' and 'profiteering'

and also said that reasonable surplus should ordinarily vary from

6 per cent to 15 per cent for utilization in expansion of the

system and development of education.

(2) In the opinion of the majority, minority institutions stand on

a better footing than non-minority institutions. Minority

educational institutions have a guarantee or assurance to

establish and administer educational institutions of their choice.

State Legislation, primary or delegated, cannot favour non-

minority institution over minority institution. The difference

arises because of Article 30, the protection whereunder is

available to minority educational institutions only. The majority

opinion called it a "special right" given under Article 30.

In the opinion of S.B. Sinha, J, minority educational

institutions do not have a higher right in terms of Article 30(1);

the rights of minorities and non-minorities are equal. What is

conferred by Article 30(1) of the Constitution is "certain

additional protection" with the object of bringing the minorities

on the same platform as that of non-minorities, so that the

minorities are protected by establishing and administering

educational institutions for the benefit of their own community,

whether based on religion or language.

It is clear that as between minority and non-minority

educational institutions, the distinction made by Article 30(1) in

the fundamental rights conferred by Article 19(1)(g) has been

termed by the majority as "special right" while in the opinion of

S.B.Sinha, J, it is not a right but an "additional protection".

What difference it makes, we shall see a little later.

(3)&(4). Questions 3 and 4 have been taken up for

consideration together. A reading of the opinion recorded in

Islamic Academy shows that paras 58, 59 and 68 of Pai

Foundation were considered and sought to be explained. It

was not very clear as to what types of institutions were being

dealt with in the above referred to paragraphs by the majority in

Pai Foundation. Certainly, distinction was being sought to be

drawn between professional colleges and other educational

institutions (both minority and unaided). Reference is also found

to have been made to minority and non-minority institutions. At

some places, observations have been made regarding

institutions divided into groups only by reference to aid, that is

whether they are aided or unaided educational institutions

without regard to the fact whether they were minority or non-

minority institutions. It appears that there are a few

passages/sentences wherein it is not clear which type of

institutions the majority opinion in Pai Foundation was

referring to thereat. However, the majority opinion in Islamic

Academy has by explaining Pai Foundation held as under:

(1) In professional institutions, as they are unaided, there will

be full autonomy in their administration, but the principle

of merit cannot be sacrificed, as excellence in profession is

in national interest.

(2) Without interfering with the autonomy of unaided

institutions, the object of merit based admissions can be

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secured by insisting on it as a condition to the grant of

recognition and subject to the recognition of merit, the

management can be given certain discretion in admitting

students.

(3) The management can have quota for admitting students at

its discretion but subject to satisfying the test of merit

based admissions, which can be achieved by allowing

management to pick up students of their own choice from

out of those who have passed the common entrance test

conducted by a centralized mechanism. Such common

entrance test can be conducted by the State or by an

association of similarly placed institutions in the State.

(4) The State can provide for reservation in favour of

financially or socially backward sections of the society.

(5) The prescription for percentage of seats, that is allotment

of different quotas such as management seats, State's

quota, appropriated by the State for allotment to reserved

categories etc., has to be done by the State in accordance

with the "local needs" and the interests/needs of that

minority community in the State, both deserving

paramount consideration. The exact concept of "local

needs" is not clarified. The plea that each minority unaided

educational institution can hold its own admission test was

expressly overruled. The principal consideration which

prevailed with the majority in Islamic Academy for

holding in favour of common entrance test was to avoid

great hardship and incurring of huge cost by the hapless

students in appearing for individual tests of various

colleges.

The majority opinion carved out an exception in favour of

those minority educational professional institutions which were

established and were having their own admission procedure for

at least 25 years from the requirement of joining any common

entrance test, and such institutions were permitted to have their

own admission procedure. The State Governments were

directed to appoint a permanent Committee to ensure that the

tests conducted by the association of colleges is fair and

transparent.

S.B. Sinha, J, in his separate opinion, agreed with the

majority that the merit and merit alone should be the basis of

selection for the candidates. He also agreed that one single

standard for all the institutions was necessary to achieve the

object of selection being made on merit by maintaining

uniformity of standard, which could not be left to any individual

institution in the matter of professional courses of study.

However, the merit criterion in the opinion of Sinha, J, was

required to be associated with the level of education. To quote

his words: "the merit criterion would have to be judged like a

pyramid. At the kindergarten, primary, secondary levels,

minorities may have 100% quota. At this level the merit may

not have much relevance at all but at the level of higher

education and in particular, professional education and

postgraduate-level education, merit indisputably should be a

relevant criterion. At the postgraduation level, where there may

be a few seats, the minority institutions may not have much say

in the matter. Services of doctors, engineers and other

professionals coming out from the institutions of professional

excellence must be made available to the entire country and not

to any particular class or group of people. All citizens including

the minorities have also a fundamental duty in this behalf."

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Before we part with the task of summing up the answers

given to the four questions in Islamic Academy, we would like

to make a few observations of ours in this regard. First, the

majority opinion spread over 30 printed pages, and the minority

opinion spread over 60 printed pages, both though illuminating

and instructive, have nonetheless not summed up or pointedly

answered the questions. We have endeavoured to cull out and

summarize the answers, noted above, as best and as briefly as

we could from the two opinions. We would, therefore, hasten to

add that in order to fully appreciate the ratio of the two opinions,

they have to be read in detail and our attempt at finding out and

placing in a few chosen words the ratio decidendi of the two

separately recorded opinions, is subject to this limitation.

However, we shall make a reference to relevant passages from

the two opinions as and when it becomes necessary. A point of

significance which we would like to briefly note here itself, a

detailed discussion being relegated to a later part of this

judgment, is that the opinion of S.B. Sinha, J, has examined in

detail, the scope of protection conferred on minority institutions

by reference to their right to seek recognition or affiliation, an

aspect of wider significance which does not seem to have

received consideration with that emphasis either in Pai

Foundation or in the majority opinion in Islamic Academy.

We shall revert to this aspect a little later.

III

Issues herein

A Few Preliminary observations

Before we embark upon dealing with the issues posed

before us for resolution, we would like to make a few preliminary

observations as a preface to our judgment inasmuch as that

would outline the scope of the controversy with which we are

actually dealing here. At the very outset, we may state that our

task is not to pronounce our own independent opinion on the

several issues which arose for consideration in Pai Foundation.

Even if we are inclined to disagree with any of the findings

amounting to declaration of law by the majority in Pai

Foundation, we cannot; that being a pronouncement by 11-

Judge Bench, we are bound by it. We cannot express a dissent

or disagreement howsoever we may be inclined to do so on any

of the issues. The real task before us is to cull out the ratio

decidendi of Pai Foundation and to examine if the explanation

or clarification given in Islamic Academy runs counter to Pai

Foundation and if so, to what extent. If we find anything said

or held in Islamic Academy in conflict with Pai Foundation,

we shall say so as being a departure from the law laid down by

Pai Foundation and on the principle of binding efficacy of

precedents, over-rule to that extent the opinion of the

Constitution Bench in Islamic Academy.

It is pertinent to note, vide paras 2, 3 and 35 of Islamic

Academy, that most of the petitioners/applicants therein were

unaided professional educational institutions (both minority and

non-minority). The purpose of constituting the Constitution

Bench, as noted at the end of para 1, was "so that

doubts/anomalies, if any, could be clarified." Having answered

the questions, the Constitution Bench treated all interlocutory

applications as regards interim matters as disposed of (see para

23). All the main matters (writ petitions, transfer petitions and

special leave petitions) were directed to be placed before the

regular Benches for disposal on merits.

Islamic Academy in addition to giving clarifications on

Interlocutory Applications, directed setting up of two committees

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in each State: one committee "to give effect to the judgment in

Pai Foundation" and to approve the fee structure or to propose

some other fee which can be charged by minority institutions

(vide para 7), and the other committee __ to oversee the tests

to be conducted by the association of institutions (vide para 19).

Since the direction made in Islamic Academy for

appointment of the Committees has been vehemently assailed

during the course of hearing before us, we would extract from

the judgment in Islamic Academy the following two passages

wherein, in the words of Khare, CJ, the purpose and the

constitution of the Committees, the powers conferred on and the

functions enjoined upon them are given:

"\005..we direct that in order to give effect to

the judgment in T.M.A. Pai case the

respective State Governments/concerned

authority shall set up, in each State, a

committee headed by a retired High Court

Judge who shall be nominated by the Chief

Justice of that State. The other member, who

shall be nominated by the Judge, should be a

Chartered Accountant of repute. A

representative of the Medical Council of India

(in short "MCI") or the All India Council for

Technical Education (in short "AICTE"),

depending on the type of institution, shall also

be a member. The Secretary of the State

Government in charge of Medical Education or

Technical Education, as the case may be,

shall be a member and Secretary of the

Committee. The Committee should be free to

nominate/co-opt another independent person

of repute, so that the total number of

members of the Committee shall not exceed

five. Each educational institute must place

before this Committee, well in advance of the

academic year, its proposed fee structure.

Along with the proposed fee structure all

relevant documents and books of accounts

must also be produced before the Committee

for their scrutiny. The Committee shall then

decide whether the fees proposed by that

institute are justified and are not profiteering

or charging capitation fee. The Committee will

be at liberty to approve the fee structure or to

propose some other fee which can be charged

by the institute. The fee fixed by the

Committee shall be binding for a period of

three years, at the end of which period the

institute would be at liberty to apply for

revision. Once fees are fixed by the

Committee, the institute cannot charge either

directly or indirectly any other amount over

and above the amount fixed as fees. If any

other amount is charged, under any other

head or guise e.g. donations, the same would

amount to charging of capitation fee. The

Governments/appropriate authorities should

consider framing appropriate regulations, if

not already framed, whereunder if it is found

that an institution is charging capitation fees

or profiteering that institution can be

appropriately penalised and also face the

prospect of losing its recognition/affiliation.

(para 7)

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We now direct that the respective State

Governments do appoint a permanent

Committee which will ensure that the tests

conducted by the association of colleges is fair

and transparent. For each State a separate

Committee shall be formed. The Committee

would be headed by a retired Judge of the

High Court. The Judge is to be nominated by

the Chief Justice of that State. The other

member, to be nominated by the Judge,

would be a doctor or an engineer of eminence

(depending on whether the institution is

medical or engineering/technical). The

Secretary of the State in charge of Medical or

Technical Education, as the case may be, shall

also be a member and act as the Secretary of

the Committee. The Committee will be free to

nominate/co-opt an independent person of

repute in the field of education as well as one

of the Vice-Chancellors of the University in

that State so that the total number of persons

on the Committee do not exceed five. The

Committee shall have powers to oversee the

tests to be conducted by the association. This

would include the power to call for the

proposed question paper(s), to know the

names of the paper-setters and examiners

and to check the method adopted to ensure

papers are not leaked. The Committee shall

supervise and ensure that the test is

conducted in a fair and transparent manner.

The Committee shall have the powers to

permit an institution, which has been

established and which has been permitted to

adopt its own admission procedure for the

last, at least, 25 years, to adopt its own

admission procedure and if the Committee

feels that the needs of such an institute are

genuine, to admit, students of their

community, in excess of the quota allotted to

them by the State Government. Before

exempting any institute or varying in

percentage of quota fixed by the State, the

State Government must be heard before the

Committee. It is clarified that different

percentage of quota for students to be

admitted by the management in each minority

or non-minority unaided professional

college(s) shall be separately fixed on the

basis of their need by the respective State

Governments and in case of any dispute as

regards fixation of percentage of quota, it will

be open to the management to approach the

Committee. It is also clarified that no

institute, which has not been established and

which has not followed its own admission

procedure for the last, at least, 25 years, shall

be permitted to apply for or be granted

exemption from admitting students in the

manner set out hereinabove. (para 19)"

Sinha, J. has not specifically spoken of the Committees.

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Nevertheless he made a reference to these Committees in his

opinion and thus impliedly recorded his concurrence with the

constitution of these Committees.

Vide para 20, the Constitution Bench has made it clear

that the setting up of two sets of Committees in the States has

been directed in exercise of the power conferred on this Court

by Article 142 of the Constitution and such Committees "shall

remain in force till appropriate legislation is enacted by

Parliament". Although the term 'permanent' has been used, but

it appears to us that these Committees are intended to be

transitory in nature.

Reference for constituting a Bench of a coram higher than

Constitution Bench

These matters have been directed to be placed for hearing

before a Bench of seven Judges under Orders of the Chief

Justice of India pursuant to Order dated July 15, 2004 in P.A.

Inamdar and Ors. v. State of Maharashtra and Ors., (2004)

8 SCC 139 and Order dated July 29, 2004 in Pushpagiri

Medical Society v. State of Kerala and Ors., (2004) 8 SCC

135. The aggrieved persons before us are again classifiable in

one class, that is, unaided minority and non-minority institutions

imparting professional education. The issues arising for decision

before us are only three:

(i) the fixation of 'quota' of

admissions/students in respect of unaided

professional institutions;

(ii) the holding of examinations for admissions

to such colleges, that is, who will hold the

entrance tests; and

(iii) the fee structure.

The questions spelled out by Orders of Reference

In the light of the two orders of reference, referred to

hereinabove, we propose to confine our discussion to the

questions set out hereunder which, according to us, arise for

decision:-

(1) To what extent the State can regulate the

admissions made by unaided (minority or non-

minority) educational institutions? Can the

State enforce its policy of reservation and/or

appropriate to itself any quota in admissions to

such institutions?

(2) Whether unaided (minority and non-minority)

educational institutions are free to devise their

own admission procedure or whether direction

made in Islamic Academy for compulsorily

holding entrance test by the State or

association of institutions and to choose

therefrom the students entitled to admission in

such institutions, can be sustained in light of

the law laid down in Pai Foundation?

(3) Whether Islamic Academy could have issued

guidelines in the matter of regulating the fee

payable by the students to the educational

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institutions?

(4) Can the admission procedure and fee structure

be regulated or taken over by the Committees

ordered to be constituted by Islamic

Academy?

The issues posed before us are referable to headings 3

and 5 out of 'five headings' formulated by Kirpal, CJ in Pai

Foundation. So also speaking by reference to the 11 questions

framed in Pai Foundation, the questions and answers relevant

for us would be referable to question Nos. 3 (b), 4, 5 (a) (b) (c)

and (9).

IV

Submissions made

A number of learned counsel addressed the Court at the

time of hearing raising very many issues and canvassing

different view-points of law referable to those issues. We

propose to place on record, as briefly as we can, the principal

submissions made confined to the issues arising for decision

before us.

The arguments on behalf of the petitioners were led by

senior counsel Shri Harish Salve. Extensively reading various

relevant paragraphs and observations in different opinions in Pai

Foundation, learned counsel contends that the directions for

setting up permanent committees for regulating admissions and

fixing fee structure in unaided minority and non-minority

institutions issued in the case of Islamic Academy are contrary

to the ratio of judgment in Pai Foundation. According to

learned counsel, the directions clearly run counter to all earlier

Constitution Bench decisions of this Court in St. Stephen's,

St. Xavier's and Kerala Education Bill.

It is argued that in the judgment of the eleven judges in

Pai Foundation which deals with several diverse issues of

considerable complexity, every observation has to be understood

in its context. Paragraph 68 in Pai Foundation has wrongly

been read as the ratio of the judgement by the Bench of five

judges in the case of Islamic Academy. It is submitted that

paragraph 68 in the majority opinion in Pai Foundation has to

be read and understood in the context of the constitutional

interpretation placed on Articles 29 & 30 of the Constitution.

Reading thus, the directions for setting up permanent

committees, for fixing quota and fee structure seriously impinge

on the constitutional guarantee of autonomy to minority

institutions under Article 30 and to unaided non-minority

institutions under Article 19(1)(g). It is submitted that taking

over the right to regulate admission and fee structure of unaided

professional institutions is not a 'reasonable restriction' within

the meaning of Article 19(6) of the Constitution. Such restriction

is virtual negation of the constitutional protection of autonomy to

minorities in running educational institutions 'of their choice' as

provided in Article 30 of the Constitution.

Elaborating his legal propositions, learned senior counsel

Shri Salve argued that establishing and running an educational

institution is a guaranteed fundamental right of 'occupation'

under Article 19(1)(g) of the Constitution. Article 19(6) permits

State to make regulations and place reasonable restrictions in

public interest upon the rights enjoyed by citizens under Article

19(1)(g) of the Constitution. Any imposition of a system of

selection of students for admission would be unreasonable if it

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deprives the private unaided institutions of the right of rational

selection which it has devised for itself. Subject to the minimum

qualifications that may be prescribed and to some system of

computing the equivalence between different kinds of

qualifications like a common entrance test, it can evolve a

system of selection involving both written and oral tests based

on principle of fairness. Reference is made to paragraph 40 of

the judgment in Pai Foundation.

It is submitted that the State can prescribe minimum

qualifications and may prescribe systems of computing

equivalence in ascertaining merit; however, the right of rational

selection, which would necessarily involve the right to decide

upon the method by which a particular institution computes such

equivalence, is protected by Article 19 and infringement of this

right constitutes an unreasonable encroachment upon the

constitutionally guaranteed autonomy of such institutions.

It is further argued that where States take over the right

of the institution to grant admission and/or to fix the fees, it

constitutes nationalization of educational institutions. Such

nationalization of education is an unreasonable restriction on the

right conferred under Article 19. Reliance is placed on paragraph

38 of the judgment in Pai Foundation.

Learned counsel further argues that schemes framed

relating to grant of admission and fixing of fees in Unni

Krishnan has been held to be unconstitutional by the 11-Judge

Bench in Pai Foundation. [Reference is made to paragraph 45

of the judgment in Pai Foundation] It is submitted that the

directions to set up committees for regulation of admission and

fee structure in Islamic Academy virtually do the same

exercise as was done in Unni Krishnan and disapproved in the

larger Bench decision in Pai Foundation. The submission in

substance made is that Unni Krishnan was disapproved in Pai

Foundation and has wrongly been re-introduced in Islamic

Academy.

It is argued that State necessity cannot be a ground to

curtail the right of a citizen conferred under Article 19(1)(g) of

the Constitution. The Constitution casts a duty upon the States

to provide educational facilities. The State is obliged to carry out

this duty from revenue raised by the State. The shortfall in the

efforts of the State is met by the private enterprise, that

however, does not entitle the State to nationalize, whether in the

whole or in part, such private enterprise. This, it is submitted, is

the true ratio of the Pai Foundation in so far as Article 19 of

the Constitution is concerned.

It is next argued that as held in St. Xavier's and re-

affirmed in Pai Foundation the right to establish and administer

educational institutions by minorities under Article 30 of the

Constitution is not an absolute right meaning thereby that it is

subject to such regulations that satisfy a dual test that is : the

test of 'reasonableness' and 'any regulation regulating the

educational character of the institutions so that it is conducive to

making the institution an effective vehicle of education for the

minority community and for the others who resort to it'. Any

regulation which impinges upon the minority character of the

institutions is constitutionally impermissible. It is submitted that

between the right of minorities to establish and administer the

educational institutions and the right of the State to regulate

educational activities for maintaining standard of education, a

balance has to be struck. The regulation in relation to

recognition/affiliation operates in the area of standard of

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excellence and are unquestionable if they do not seriously curtail

or destroy the right of minorities to administer their educational

institutions. Only in maintaining standards of education, State

can insist by framing regulations that they be followed but in all

other areas the rights of minority must be protected. It is

conceded that mal-administration is not protected by Article 30

of the Constitution. Similarly, secular laws with secular object

that do not directly impinge upon the right of minority

institutions and operate generally upon all citizens do not

impinge upon Article 30 of the Constitution. This has been the

constitutional interpretation of Article 30 not because Article 30

admits no exception like Article 19(6) but because the right

conferred under Article 30 does not extend to these areas. The

laws that serve national interest do not impinge upon Article 30.

Learned counsel in elaborating his argument tried to make

a distinction between the rights of aided institutions and unaided

institutions. Article 29(2) places a limitation on the right of an

aided institution by providing that if State aid is obtained, 'no

citizen shall be denied admission on grounds only of religion,

race, caste, language or any of them'. It is submitted that as a

necessary corollary, no such limitation can be placed while

regulating admission in an unaided minority institution which

may prefer to admit students of minority community. So far as

unaided minority educational institutions are concerned, the

submission made is that government has no right or power,

much less duty, to decide as to which method of selection of

students is to be adopted by minority institutions. The role of the

government is confined to ensuring that there is no mal-

administration in the name of selection of students or in the

fixation of fees. No doubt, the State is under a duty to prevent

mal-administration, that is to control charging of capitation fees

for the seats regardless of merit and commercializing education

resulting in exploitation of students, but to prevent mal-

administration of the above nature or on the ground that there is

likelihood of such mal-administration, the State cannot take over

the administration of the institutions themselves into its own

hands. The likelihood of an abuse of a constitutional right cannot

ever furnish justification for a denial of that right. An

apprehension that a citizen may abuse his liberty does not

provide justification for imposing restraints on the liberty of

citizens. Similarly, the apprehension that the minorities may

abuse their educational rights under Article 30 of the

Constitution cannot constitute a valid basis for the State to take

over those rights.

Learned senior counsel Shri Ashok Desai appearing on

behalf of unaided Karnataka Private Medical Colleges (through its

Association) of both categories of minority and non-minority has

questioned the correctness of the directions in the case of

Islamic Academy for setting up permanent committees for

fixation of quota and determination of fees. According to him, as

held in Pai Foundation, in the name of controlling capitation,

there cannot be indirect nationalization and complete State

control of unaided professional institutes. In the case of Islamic

Academy, the ratio of Pai Foundation that autonomy of

unaided non-minority institutions is an important facet of their

right under Article 19(1)(g) and in case of minority under Article

19(1)(g) read with Article 30 of the Constitution has been

ignored.

On behalf of unaided private professional colleges, learned

counsel further submitted that there are many private

educational institutes which have been set up by people

belonging to a region or a community or a class in order to

promote their own groups. As long as these groups form an

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unaided minority institution, they are entitled to have

transparent criteria to admit students belonging to their group.

For instance, scheduled castes and scheduled tribes have started

Ambedkar Medical College; Lingayaths have started KLE Medical

College in Belgaun and people belonging to Vokalliga community

have started Kempegowda Medical College. Similarly, Edava

community in Kerala has started its own colleges. Sugar

cooperatives in Maharashtra have started their own colleges.

Learned counsel also highlighted an instance of a college opened

in Tamil Nadu by State Transport Workers for the education of

their children on the engineering side. He submitted that if the

State is allowed to interfere in the admission procedure in these

private institutions set up with the object of providing

educational facilities to their own group, community or poorer

sections, the very purpose and object of setting up a private

medical college by a group or community for their own people

would be defeated.

According to learned counsel, the State control in unaided

private professional colleges can only be to the extent of

monitoring or overseeing its working so that they do not indulge

in profiteering by charging capitation fees and sacrifice merit.

According to the learned counsel, in the directions contained in

Islamic Academy, the main ratio of Pai Foundation that the

unaided institutions should have autonomy in the matter of

admission and fees structure has been totally forgotten. The

learned counsel raised very serious objections to the manner in

which the various permanent committees set up in several

States on the directions of Islamic Academy are conducting

themselves and forcing their decisions on private institutions.

The proposed fee structure is required to be placed before the

Committee in advance of the academic year by the institute. It is

the Committee which has to decide whether the fees proposed

by the institute are justified and do not amount to profiteering or

charging of capitation fees. The Committee has been given

liberty to approve the fee structure of the institute or to propose

a different fee structure. The fee fixed by the Committee is

binding for a period of three years and at the end of the said

period the institute would be at liberty to apply for revision.

Learned counsel gave in writing certain illustrations of decisions

of the Fee Committee in few unaided colleges in the State of

Karnataka and pointed out that without proper financial

expertise and without studying the relevant documents and

accounts, the Committee determined the fee structure by only

taking into account the affordability of the parents of the

students with no regard whatsoever to the viability of the

institute on the basis of finances so generated. It is argued as to

why private professional institutes should not be allowed to

modernize its facilities and provide better professional education

than government institutes. It is pointed out that in the case of

non-minority unaided M.S. Ramaiaya Medical College, Bangalore,

the Fee Committee initially fixed annual fee at Rs.2.55 lacs for

MBBS course as against the justification shown by the institute

for demanding Rs. 3.90 lacs. The decision of the Fee Committee

led to the filing of writ petition by the institute in the High Court

of Karnataka and agitation and demonstrations by the students'

union. The Committee under the pressure of the student

community reduced the annual fee to Rs.1.6 lacs which was re-

affirmed after the High Court directed that the management of

the unaided college should be heard before reducing the annual

fee.

Thus the learned counsel on behalf of the Karnataka

Private Medical College Association questioned the correctness of

the directions of the Bench in Islamic Academy. It is submitted

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that as decided in Pai Foundation by a larger Bench, the

essence of private educational institutions is the autonomy that

the institution must have in its management and administration.

The 'right to establish and administer' particularly comprises the

right a) to admit students and b) to set up reasonable fee

structure. The autonomy of the institution, therefore, predicates

that all seats would be filled by the management and there can

be no reservations or quotas in favour of the State. In Pai

Foundation, the only observations made were that some

colleges may be required to admit a small percentage of

students belonging to weaker sections of the society by granting

them freeships or scholarships. It is conceded that autonomy of

a private educational institution to admit students of its choice

does not mean that there can be no insistence on transparency

in the admission procedure and on merit being the criterion for

admission. It is submitted that autonomy of a private

educational institution could mean that they can, according to

the objects and purposes of their institutions, give preference to

a particular class or group of students like SC/ST in Ambedkar

Medical College, students from backward area in Bijapur college

and transport employees' children in Madras State Corporation

Employees' College or the children of employees of Larson &

Turbo Company in a college established by that company. The

right to charge fees so as to run the college and to generate

sufficient funds for its betterment and growth cannot be

controlled by the State. That would seriously encroach upon the

autonomy of the private unaided institution. It is submitted, by

quoting Dr. S. Radhakrishnan, the then Chairman of the

University Education Commission, that interests of democracy lie

with the resistance of the trend towards governmental

domination of the educational process. In conclusion, learned

counsel representing Association of private unaided colleges in

Karnataka submits that the decision in Islamic Academy and

the directions made therein go far beyond the law laid down by

the larger Bench in Pai Foundation. The Bench in Islamic

Academy virtually reviewed the larger Bench decision in Pai

Foundation in guise of implementation of the said decision and

on the basis of later developments. In Islamic Academy, the

Bench accepted that there could be no rigid fee structure fixed

by the government for private institutions. An institute should

have the freedom to fix its own fee structure for day-to-day

running of the institute and to generate funds for its further

growth. Only capitation and diversion of profits and surplus of

the institute to any other business or enterprise was prohibited.

It is submitted that Islamic Academy contrary to the legal

position explained in Pai Foundation, could not set up in each

State permanent committees headed by retired High Court

Judges with the power to decide on the justification of the fee

proposed by the institute and propose any other fees. It could

also not make the fee fixed by the Committee binding for a

period of three years. Learned counsel submits that once the

college infrastructure and hospital facilities attached to the

medical college have been approved by the Medical Counsel of

India in accordance with its regulations, the total expenses of

college and hospital could be taken into account by the institute

to decide upon its own fee structure. Learned counsel, in

criticizing the directions in Islamic Academy, submitted that

although the scheme formulated in Unni Krishnan has been

expressly overruled in Pai Foundation on the ground that it

virtually nationalized education and resulted in surrendering total

process of selection to the State, the Bench in Islamic

Academy's case, in an attempt to take up preventive measures

to ensure merit and check profiteering in private unaided

professional institutions, cannot re-introduce quota system for

the management and the State and thus infringe upon the

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autonomy of the institute. Such an attempt, learned counsel

contends, would be unconstitutional and violative of Article

19(1)(g) of the Constitution in the case of non-minority unaided

institutions and also violative of Article 30 in the case of minority

unaided professional institutions. Learned counsel argued that

constitutionally, as held in Pai Foundation, it is not permissible

for the State to impose a Government quota, its own reservation

policy, a lower scale of fees etc. on a private unaided non-

minority and unaided minority professional institutions, only by

taking into consideration the interests of students. In the State

of Karnataka for the academic year 2004-2005, by illustration, it

is shown that 75% of the intake capacity is the Government

quota in which are included 5% quota for sports, defence and

NCC; 50% quota for Scheduled Castes/Economically backward

classes/Scheduled Tribes/OBC, there is total 55% reservation

quota in 75% of the government quota. The remaining 25%

quota left for the management is also to be taken over by the

Government insisting on admitting students from the select list

prepared on the common entrance test conducted by the State.

Learned senior counsel Shri F. S. Nariman also supported

the submissions made by other counsel on behalf of the unaided

professional institutions and added that the observations of the

Bench in Islamic Academy clearly go far beyond anything said

by eleven judges in Pai Foundation. It is submitted that the

question of quota 50:50 for State and management as referred

to in St. Stephen's was in respect of aided minority educational

institutions and in Pai Foundation, the Bench never suggested

fixation of quota for State and management in case of unaided

professional institutions. Learned senior counsel particularly

pointed out that in Islamic Academy, the observations that

different percentage of quota for students to be admitted by the

management in each minority and non-minority unaided

professional institutions shall be separately fixed on the basis of

their need by the respective State Government, was a totally

new direction, nowhere to be found or supported by any of the

observations in any of the opinions of the 11-Judge Bench in

Pai Foundation. With regard to the most controversial

observations contained in paragraph 68 of the opinion prepared

by Justice Kirpal (the then CJI) in Pai Foundation, learned

counsel contended that the decision in Unni Krishnan having

been overruled by 11-Judge Bench in Pai Foundation, the

observations in paragraph 68 which are more in tune with Unni

Krishnan should not be read as the ratio of the case. Senior

counsel was also critical of all the observations in fixing quota for

the State in unaided institutions on the basis of local needs

and not the needs of the community for which the institution

was set up. Learned counsel also criticized the directions in

Islamic Academy which according to him are contrary to the

findings in Pai Foundation that certain unaided private

educational institutions which had been adopting its own

admission procedure for the last 25 years be allowed to continue

to do so. It is submitted that as a part of autonomy of the

private unaided institution, the quantum of fees to be charged

must be left to the institution and except for checking

profiteering and capitation fees, the State can have no say in

fixation of fees. The scheme of setting up permanent committees

for even unaided minority and non-minority institutions was not

at all envisaged in Pai Foundation. The Islamic Academy

which was the case before a smaller Bench could not do anything

beyond and contrary to what has been stated in Pai

Foundation.

Learned senior counsel Shri R.F. Nariman in supporting the

argument advanced against the directions in Islamic Academy

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submitted that any interference with the autonomy of the

institution, other than to prevent mal-administration, would not

be saved by Article 19(6) of the Constitution. The concept of

administration includes choice in admitting students and fixing a

reasonable fee structure. In the matter of admission, if objective

criteria are adopted so as to reflect the merit, it would be

unexceptionable. So far as fee structure is concerned, no

institution can be allowed to charge capitation fees which only

means something taken over and above what the institution

needs by way of revenue and capital expenditure plus a

reasonable surplus. Once Unni Krishnan was overruled, private

education cannot be allowed to be nationalized. It is submitted

that it may be possible for the State to scrutinize the

expenditure of revenue and capital expenditure of an aided and

unaided institution to ensure good administration but the State

cannot devise its own admission procedure and determine in

advance a fee structure for the unaided private institutions. On

the question of deducing ratio in Pai Foundation, learned

counsel referred to Halsbury Laws of England Vol. 37 page 378

in which the meaning of ratio decidendi has been explained. It is

submitted that it is only the essence of the reason or principle

upon which the question before a court has been decided which

is alone binding as a precedent. It is dangerous to take one or

two observations out of a long judgment and to treat them as if

they give the ratio decidendi of the case.

Dr. Rajiv Dhawan, learned senior counsel in assailing

directions issued in Islamic Academy for setting up permanent

committees to fix quota and fee structure highlighted that the

State of Maharashtra has encroached upon the rights of unaided

institutions by directing in one of its Government Memoranda

dated 13.02.2003 that even in the quota of seats fixed for

management, the unaided non-minority institutions should

implement the rule of reservation (communal reservation) of the

State Government.

Learned senior counsel contends that the net result of such

illegal directions is that the reservation policy for schedule

castes, schedule tribes and OBCs is to be applied not only for

50% seats of government quota but also for the remaining 50%

of management quota of unaided non-minority institutions.

Virtually, the management of non-aided institutions has been

completely taken over by the state and as a result of communal

reservations, the quota of seats fixed for government and quota

fixed for the management may be filled by granting admissions

to students of non-minority communities .

Learned senior counsel contends that in Pai Foundation,

maximum autonomy is conceded in favour of unaided

institutions. The only insistence is on maintenance of

transparency in method of admission and fixation of such fee

structure that does not permit charging of capitation fee.

Interpreting provisions of Article 19(6) and Article 30 it is

contended that constitutional limitation necessarily would vary in

imposing reasonable restriction where the institution is unaided

or aided.

On the issue of constitutional protection to the unaided

minority institutions, the contention advanced that general

restrictions permissible under Article 19(6) can also be applied to

unaided minority institutions, it is submitted, is misconceived.

The submission is that education is a recognized head of charity.

The object of establishing educational institution is not to make

profit. Imparting education is essentially charitable in nature.

The charitable nature of the occupation of establishing and

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running an educational institution has been recognized in Pai

Foundation. Therefore, all restrictions, which are permissible

under Article 19(6) in case of other kind of professions and

occupations, cannot apply to educational activities. It is

submitted that restrictions imposed should satisfy the

requirements of Article 30 and not only of Article 19(6).

In Pai Foundation, for determining linguistic and religious

minorities, the unit to be taken is State. Therefore, when

Tamilians, who are in majority in Tamil Nadu, establish an

institution for Tamil students in Karnataka, it would be a

minority institution in Karnataka. What would be the rights of

such an institution of linguistic minority has not been answered

either in Pai Foundation or in Islamic Academy. Therefore,

this Bench should decide what are the rights of such cross-

border institutions.

In short, the submission made by Sr. Counsel Dr. Rajiv

Dhawan is that there is nothing in Pai Foundation, which

permits fixation of quotas for government seats, fixation of fee

structure by the State, imposition of its reservation policy and

imposition of candidates on the basis of common entrance test

conducted by the State. In Pai Foundation, the State can have

some controlling influence on unaided institutions for the

purpose of ensuring transparency in admissions and checking

the collection of capitation fee. In Pai Foundation, no

preemptive action by setting up permanent committees by the

State was envisaged or even indirectly approved.

The decision in Islamic Academy, it is submitted, is

contrary to the decision by the larger Bench in Pai Foundation,

and deserves therefore to be so declared by this Bench.

Learned senior counsel Shri U.U. Lalit appears for the sole

Dental College established by Muslims in the State of

Maharashtra. Apart from supporting the contention advanced by

other counsel against the scheme of committees evolved in

Islamic Academy, learned counsel submitted that the

judgment of the Bombay High Court against which they have

filed an appeal before this court has resulted in a situation where

affluent students are getting admission at lesser fee and poorer

students are kept out of college. It was submitted that the

petitioner institute being the sole institute set up for Muslim

community, their desire to cater to the educational needs of

Muslim students from all over cannot be discouraged. Objecting

to the fee structure prescribed by the committees in

Maharashtra, the suggestion made on behalf of the institute is as

under :-

(a) 25% students will be charged five times

of the average fee, which was in vogue before

TMA Pai's judgment.

(b) 50% students will be charged average

fee.

(c) Remaining 25% will be charged 1/4th of

the average fee.

It is submitted that in the above proposed fee structure,

meritorious students coming from all sections of society will be

able to take admissions. At the same time, the educational

institutions will be able to recover the amount required for

running the educational institution in the best possible manner.

It is, therefore, prayed that Bombay High Court judgment dated

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23.08.2003 prescribing uniform fee structure for all the students

be set aside and minority educational institutions be allowed in

the exercise of their fundamental right, to prescribe fee under a

three-tier system subject to the rider of non-profiteering and not

charging capitation fee.

In reply, on behalf of the respondents, senior counsel, Shri

K.K. Venugopal, who appeared for the States of Kerala led the

arguments. It may be noted at this stage that after the

decisions in Pai Foundation and Islamic Academy, in the

States of Kerala, Karnataka, Maharashtra and Tamil Nadu, their

respective legislatures have passed Acts regulating admissions

and charging of fee in both aided and unaided minority and non-

minority private educational institutions engaged in imparting

education in professional, medical, engineering and allied

courses.

On behalf of the State of Kerala, it is pointed out that only

25% seats in private professional colleges have been reserved to

be filled on the basis of central entrance test and remaining 75%

seats are to be filled by the management. It is submitted that

the group of paragraphs starting with 67 and ending with 70 in

the majority opinion in Pai Foundation carries the title "Private

Unaided Professional Colleges." This heading covers both

unaided minority and non-minority professional colleges. Since

paragraph 68 in the majority opinion in Pai Foundation has

been differently understood by the High Court of Karnataka and

Kerala, an occasion has arisen to resolve the controversy by a

Bench of the present combination of seven judges.

To justify fixation of quota for seat sharing between State

and the private management and fixing a reasonable fee

structure to avoid profiteering and capitation, the learned

counsel highlighted certain illicit practices, which are being

resorted to, by the private institutions to exploit the student

community. It is submitted both the judgments in Pai

Foundation and Islamic Academy, profiteering,

commercialization of education and the collection of capitation

fee have been condemned. This court had expressly held that it

would be open to the government to make regulations for the

purpose of preventing commercialization of professional

education. It is on the line suggested by this court that the

Government of Kerala had made regulations both for the

purpose of admissions as well as for fixing reasonable fee which

will cover not only the expenditure incurred by the institution but

also give them a reasonable revenue surplus for further growth

and betterment of the institution.

The High Court of Kerala by its judgment of 23.08.2003

has fixed rupees 1.50 lacs provisionally per annum as the fee.

The Government has fixed 1.76 lacs. What is being disclosed by

Pushpgiri Medical College itself is that they had collected rupees

4.38 lacs and rupees 22 lacs from different students. The

explanation given is that these collections are for the whole

period of five years to prevent the students from leaving the

college mid-way. This explanation on the face of it is

disingenuous as rupees 22 lacs was not collected uniformly from

all the students. Despite the students leaving the course mid-

way, the seats would still be filled. It is due to this menace and

evil practice of exploiting parents and students that a Committee

was required to be set up for restricting admissions in proportion

to the need of the peculiar character of the institution and to

check profiteering.

It is submitted that if the scheme as evolved in Islamic

Academy of setting up of permanent Committees is not allowed,

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education which is already commercialized to some extent would

be wholly inaccessible to students coming from middle classes,

lower-middle classes and poor sections of the society. To

provide access to professional education even to weaker sections

of the society in fifty percent quota of seats to be filled by the

government, the reservation policy of the government has been

applied. The fifty-fifty percent quota between government and

management fixed by the government has been changed to

twenty five-seventy five per cent by the court. Similarly, the

court has struck down Regulation 11 framed by the State on the

ground that the State cannot foist fee of students on the

institution and it would be left to the management to make

provisions for poorer sections of the society through free-ships

or scholarships.

In the above-mentioned background, learned counsel Shri

Venugopal submits that this Bench is not considering the

correctness of judgment in Islamic Academy. It will not and

cannot go into the question of correctness of judgment in Pai

Foundation which is of a larger Bench. This Bench has a

limited jurisdiction to examine whether the 5-Judge Bench

decision in Islamic Academy is in any manner inconsistent with

11-Judge Bench judgment in Pai Foundation. It is submitted

that if there are certain inherent inconsistencies between various

paragraphs particularly 59 and 68 of the judgment in Pai

Foundation, they have to be resolved and that was exactly

what was done by the five judges in Islamic Academy.

In Pai Foundation, observation in paragraph 68 under

the heading "Private Unaided Professional Colleges" read with

para 69 indicates appropriate machinery to be evolved to

regulate admissions in both categories of private institutions to

check exploiters who are charging capitation fee.

It is submitted that if the attempt by the Bench in Islamic

Academy to resolve the apparent inconsistency in the judgment

of Pai Foundation, indicated a reasonable and plausible

interpretation of the 11-Judge Bench judgment in Pai

Foundation, this court should refrain from substituting another

interpretation.

It is for the first time in Pai Foundation that the question

of application of Article 30 to minority professional colleges

arose. All earlier judgments of this court were only concerning

education in schools and colleges other than those imparting

professional education. For the first time in Pai Foundation, the

court held that running an educational institution is an

'occupation' and Article 19(1) (g) guarantees it as a fundamental

right.

It is submitted that regulation of non-minority unaided

professional institution is permissible under Article 19(6) of the

Constitution to prevent profiteering, levy of capitation fee and

selection of non-meritorious candidates. Such regulation also

does not violate right of minority professional institutions under

Article 30, which this Court has repeatedly held, is not an

absolute right but is merely a protection extended to minorities

against oppression by the majority.

The issue relating to reservation of seats for schedule

castes, schedule tribes or OBCs, either in management quota or

in Government quota did not come up for consideration either in

Pai Foundation or Islamic Academy. This has to be

separately dealt with by the present Bench

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Similarly, it is submitted that right of minority institutions

to admit students from all over the country, irrespective of their

religion and community and also from abroad such as NRIs

never arose directly for consideration either in Pai Foundation

or Islamic Academy. In this respect, it is submitted that the

status of minority both religious and linguistic is to be

determined at the state level. The minority institutions cannot

claim a right to cater to the educational needs of their

community from all over the country and even from abroad.

In paragraph 68 of the judgment in Pai Foundation the

use of the phrase 'certain percentage based on local needs' and

further phrase 'different percentages can be fixed' for minority

unaided and non-minority unaided professional colleges' clearly

convey that quotas can be fixed based on local needs for

management and for the Government. Meritorious students

from weaker sections are not to be sidelined from higher and

professional education. It is argued that the phrase 'local need'

as used in paragraph 68 in the judgment of Pai Foundation

cannot be read to mean the needs of the institution

concerned. So far as the selection based on merit is concerned,

common entrance test has been suggested both for aided and

non-aided professional colleges. When there is no common

entrance test, merit becomes the casualty and the rich and the

affluent corner the seats.

So far as the right to fix a fee structure for unaided

minority or non-minority colleges or institutes is concerned, the

argument that pre-fixation of fee is a serious encroachment on

the rights of minority and non-minority, it is submitted, is not

valid as full discretion is given to the management in fixing their

fee structure. However, they would not be allowed to fix such

high fee as would deny many meritorious students a chance of

admission only because they come from economically weaker

sections. It would be of no consolation to them to find that after

admissions are over and classes have started, the fee has been

lowered by the monitoring committee. If the committee is

allowed to scrutinize the justification of fee fixation after the

admissions and the fee is lowered, it would not be possible for

the meritorious students to again seek admission. Through the

Committees set up in Islamic Academy, the fee structure

would be known before hand and would serve the interest of the

institution as also the students seeking admission. The

Committee has to fix fee for each college depending upon its

peculiar conditions and its assets and availability of funds.

Coming to the question of cross subsidy, it is submitted that in

Pai Foundation, cross-subsidizing the weaker sections by the

more affluent ones has not been held to be impermissible. The

Bench in Pai Foundation overruled the judgment in Unni

Krishnan. The latter provided for "marginally less merited rural

or poor students bearing the burden of rich and urban students."

The learned counsel suggests that solution can be to set apart

fifteen percent of total seats in a local college to be filled by NRI/

person of independent origin/ foreign students who would

volunteer to fill up the allotted seats on the management quota

but on inter se merit. Each NRI student would subsidize two

other students belonging to the economically and socially weaker

sections based on an annual income of say less than rupees 2.5

lacs. This would cater to the financial needs of at least 30 out of

50 students selected on merit forming part of the Government

quota and this would be a constitutionally permissible solution.

To streamline and further improve the admission

procedure and fixation of fee structure, learned counsel has

made the following proposals in writing submitting that they

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may be of practical value to the Committees directed to be set

up by Islamic Academy:-

A. ADMISSION:

Six months prior to the commencement of the

academic year, the Government would fix the

percentage of students to be admitted by a minority

(religious/linguistic) professional college (other than

engineering ), taking into account the local needs of

the State, the region as well as that of the minority-

community. It would be a huge and cumbersome

exercise in practice, to fix a percentage for each one

of the institutions separately and it would be a

pragmatic approach to have a fixed percentage for

all the minority institutions which is fair and

reasonable. A practical approach to the problem

would require a very definite percentage to be fixed

for minority institutions, say, 50% so that even if

candidates of their choice, belonging to the minority

institutions, are only 25% they would still have the

right to select non-minority students to make up the

50%, of course, from the CET held by the

Government.

1. The CET held by Government would ensure

that the various devices adopted by professional

colleges to secretly demand capitation fees and take

the same in black money, thus resulting in merit

being the casualty, would not take place. No

prejudice will be caused to the management of the

professional colleges as they could select the

minority students based on inter se merit in the CET

held by the Government.

2. There would equally be no disadvantage to any

particular section or to Government if the same 50%

rule is applied even to unaided non-minority

professional colleges as well.

3. The result of following this procedure is that a

consortium holding the tests for admissions is done

away with and a monitoring committee, preferably

headed by a retired High Court or Supreme Court

judge would ensure fairness and transparency both

in the minority and non-minority professional

institutions.

4. ............

5. ..............

B. FEES:

The Committee suggested by Islamic Academy and

the procedure mentioned therein, appears to be the

only safe method of ensuring that extortionate fees

are not charged by the medical colleges. At the

same time, it would be wrong to deny expenditure

which the institution undertakes for ensuring

excellence in education. Equally, a reasonable

surplus should be permitted so that the fees charged

cover the entire revenue expenditure and in addition

leaves a reasonable surplus for future expansion.

This alone would prevent the clandestine collection of

capitation fees and would result in entrepreneurs

investing in new medical colleges.

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The Committee suggested by Islamic Academy

appears to be the ideal one consisting of a chartered

accountant, a representative of the MCI or AICTE as

the case may be, with a retired judge of the High

Court or the Supreme Court as the head.

The fee is to be fixed on the proposal of the

institution supported by documents and the

procedure of fee finalization should commence at

least 6 months in advance of the commencement of

the academic year.

These proposals should all be by way of an interim

arrangement as held by Islamic Academy in para 20

with the Parliament bringing in a law, as suggested

by Islamic Academy without dragging its feet any

longer."

With regard to the ambit of the constitutional guarantee of

protection of educational rights of minorities under Article 30,

learned counsel submits that both religious and linguistic

minority, as held in Pai Foundation, are to be determined at

the State level. On this understanding of the concept of

'minority', Article 30 has to be harmoniously construed with

Article 19(1)(g) and in the light of the Directive Principles of the

State Policy contained in the Articles 38, 41 and 46. Rights of

minorities cannot be placed higher than the general welfare of

the students and their right to take up professional education on

the basis of their merit.

The real purpose of Article 30 is to prevent discrimination

against members of the minority community and to place them

on an equal footing with non-minority. Reverse discrimination

was not the intention of Article 30. If running of educational

institutions cannot be said to be at a higher plane than the right

to carry on any other business, reasonable restriction similar to

those placed on the right to carry on business can be placed on

educational institutions conducting professional courses. For the

purpose of these restrictions both minorities and non-minorities

can be treated at par and there would not be any violation of

Article 30(1), which guarantees only protection against

oppression and discrimination of the minority from the majority.

Activities of education being essentially charitable in nature, the

educational institutions both of 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.

On behalf of the State of Karnataka, learned senior counsel

Shri T.R. Andhyarujuna supported the judgment in Islamic

Academy of setting up permanent Committees for regulating

admission and fee structure. Learned senior counsel submitted

that relevant parts of paragraphs 58, 59 and 68 and answer to

question no. 4 in Pai Foundation have to be read and

reconciled. They cannot be ignored simply as obiter. A

combined reading of the relevant paragraphs and the answer to

question no.4 makes it clear that regulations can be made by the

State for admission in minority and non-minority private

educational institutions and more so in professional institutions.

The merit for admission to professional courses is generally

determined by Government agencies. In Pai Foundation the

reservation on certain percentage of seats by the Government to

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be filled up by counseling by state agency, is held permissible.

With regard to the quota fixation, learned counsel submits

that paragraph 68 in Pai Foundation allows reservation of

quota for management and for the Government for available

seats. It is submitted that the educational institutions cannot

merely read the answer to question no.4 given by judgment in

Pai Foundation and ignore the other observations in other

paragraphs of the judgment.

So far as the case of minority and non-minority unaided

institutions is concerned, learned counsel submits that the

balancing act has been performed in the judgment of Pai

Foundation by regulating the economy of educational

institutions moderated by necessary State legislation.

Observation in paragraph 68 in Pai Foundation does not

amount to permitting nationalization or takeover of the private

institutions which was the main feature found foul in the decision

in Unni Krishnan and was consequently overruled. The

observation in Pai Foundation in paragraph 68 strikes the

balance between the academy and education. To read

paragraph 68 as merely giving an instance would be to ignore

the concern of the Bench in Pai Foundation of providing

reservation to poorer or backward sections of society even in

private institutions. The description of percentage of reservation

in paragraph 68 is different from reservation policy of the State

for State institutions and in State quota.

It is submitted that the reservation spoken of in paragraph

68 of Pai Foundation is to cater to the needs of poorer and

weaker sections and also other students depending upon the

local needs.

So far as the regulation of fee structure is concerned, it is

submitted that in paragraph 69 in Pai Foundation there is a

mention of "appropriate machinery to be devised by the State or

University to ensure that no capitation fee is charged and

profiteering is checked." The judgment in Islamic Academy

merely implements the legal position explained by Pai

Foundation by providing a fee determination committee. In

reply to the argument that post-fixation audit may be permitted

to check profiteering and capitation, the learned counsel answers

that if the role of the Committee is limited to supervisory post

fixation audit, it would amount to denying credible restriction to

the charging of capitation fee. It is chimerical to suggest that

the student should first pay the exorbitant fee fixed by the

institution and later on complain about it to the post audit

machinery to recover the excess through court of law. The

controlling of the fee fixing machinery is necessarily to be done

before it is charged otherwise it is meaningless to the benefit of

the students for whom it is suggested in paragraph 69. The

general principle for scrutinizing the fee structure is two-fold; (1)

that education is a charity, (2) that educational institutions

cannot charge such fee as is not required for the purpose of

fulfilling that object which means cost plus reasonable surplus

for expansion and growth of the institution. These are the

parameters before the Committee whose decisions, in any case,

are subject to judicial review.

So far as the admissions based on common entrance

test are concerned, it is submitted that paragraphs 58 and 59 of

Pai Foundation permit regulations to be framed for admission

in professional institutions by State agency to ensure admission

on merit. In the absence of CET and centralized counseling,

private educational institutions would pick and choose candidates

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ignoring merit, as has been evident from the Karnataka

experience. If the private professional educational institutions

conceive that merit cannot be ignored in granting admission,

direction to make selection based on CET does not in any

manner adversely affect the character of the minority institution.

The State regulation providing for CET is a reasonable restriction

and it will pass the test of Article 19(6) both in respect of aided

and unaided non-minority institutions. Private unaided

institutions have also to admit students on the basis of merit in a

fair and transparent manner in the interest of student

community. Right of private educational institutions to admit

students can be regulated. Such regulations if in national and

public interest do not in any manner impinge on the right of

minority.

Learned counsel points out that so far as the State of

Karnataka is concerned, no reservation policy is being insisted

upon in the seats or quota given to the management.

Arguments were also advanced supporting the directions in

Islamic Academy by learned senior counsel Shri P.P. Rao

appearing for the State of Tamil Nadu. It is submitted that

already a statement had been made in the High Court that the

State of Tamil Nadu would not be insisting on communal

reservation based on State policy in the minority institution.

Learned counsel pressed into service Article 51-A(j)

providing for Fundamental Duties in the Constitution. It is

submitted that fundamental duty is enjoined on citizens to so

direct their individual and collective activities that the nation

constantly rises to higher levels of endeavour and achievement.

This duty implies that the State on its part is to facilitate

discharge of duties by the citizen in relation to the professional

education. The State is bound to ensure admission to colleges

that are made purely on relative merit to be objectively assessed

by a responsible agency. The decisions of this court rendered

from time to time consistently and unanimously held that

regulation could be made for achieving standards of excellence

in education. Reliance is placed on Dr. Prithvi v. State of MP

(1999) 7 SCC 120 at 153 and 155; Professor Yashpal v. State

of Chhattisgarh (2005) 2 SCC 61 at 79 paragraph 90.

V

A few concepts

There are a few concepts which should be very clear in

our minds at the very outset, as these are the concepts which

flow as undercurrents in the sea of issues surfacing for resolution

in all educational cases. These concepts are referable to : (i)

What is 'education'? (ii) What is the inter-relationship of Articles

19(1)(g), 29 and 30 of the Constitution? (iii) In the context of

minority educational institutions, what difference does it make if

they are aided or unaided or if they seek recognition or affiliation

or do not do so? (iv) Would it make any difference if the

instructions imparted in such educational institutions relate to

professional or non-professional courses of study?

Education

'Education' according to Chambers Dictionary is "bringing

up or training; strengthening of the powers of body or mind;

culture."

In Advanced Law Lexicon (P. Ramanatha Aiyar, 3rd Edition,

2005, Vol.2) 'education' is defined in very wide terms. It is

stated : "Education is the bringing up; the process of developing

and training the powers and capabilities of human beings. In its

broadest sense the word comprehends not merely the instruction

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received at school, or college but the whole course of training

moral, intellectual and physical; is not limited to the ordinary

instruction of the child in the pursuits of literature. It also

comprehends a proper attention to the moral and religious

sentiments of the child. And it is sometimes used as

synonymous with 'learning'."

In The Sole Trustee, Lok Shikshana Trust v. C.I.T.,

(1976) 1 SCC 254, the term 'education' was held to mean __

"the systematic instruction, schooling or training given to the

young in preparation for the work of life. It also connotes the

whole course of scholastic instruction which a person has

received\005. What education connotes is the process of training

and developing the knowledge, skill, mind and character of

students by formal schooling."

In 'India \026 Vision 2020' published by Planning Commission

of India, it is stated (at p.250) __ "Education is an important

input both for the growth of the society as well as for the

individual. Properly planned educational input can contribute to

increase in the Gross National Products, cultural richness, build

positive attitude towards technology and increase efficiency and

effectiveness of the governance. Education opens new horizons

for an individual, provides new aspirations and develops new

values. It strengthens competencies and develops commitment.

Education generates in an individual a critical outlook on social

and political realities and sharpens the ability to self-

examination, self-monitoring and self-criticism."

"The term 'Knowledge Society', 'Information Society' and

'Learning Society' have now become familiar expressions in the

educational parlance, communicating emerging global trends

with far-reaching implications for growth and development of

any society. These are not to be seen as mere clichi or fads but

words that are pregnant with unimaginable potentialities.

Information revolution, information technologies and knowledge

industries, constitute important dimensions of an information

society and contribute effectively to the growth of a knowledge

society." (ibid, p.246)

"Alvin Toffler (1980) has advanced the idea that power at

the dawn of civilization resided in the 'muscle'. Power then got

associated with money and in 20th century it shifted its focus to

'mind'. Thus the shift from physical power to wealth power to

mind power is an evolution in the shifting foundations of

economy. This shift supports the observation of Francis Bacon

who said 'knowledge itself is power'; stressing the same point

and upholding the supremacy of mind power, in his characteristic

expression, Winston Churchill said, "the Empires of the future

shall be empires of the mind". Thus, he corroborated Bacon

and professed the emergence of the knowledge society." (ibid,

p.247)

Quadri, J. has well put it in his opinion in Pai Foundation

(para 287) ___ "Education plays a cardinal role in transforming a

society into a civilised nation. It accelerates the progress of the

country in every sphere of national activity. No section of the

citizens can be ignored or left behind because it would hamper

the progress of the country as a whole. It is the duty of the

State to do all it could, to educate every section of citizens who

need a helping hand in marching ahead along with others".

According to Dr. Zakir Hussain, a great statesman with

democratic credentials, a secularist and an educationist, a true

democracy is one where each and every citizen is involved in the

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democratic process and this end cannot be achieved unless we

remove the prevailing large-scale illiteracy in our country.

Unless universal education is achieved which allows every citizen

to participate actively in the processes of democracy, we can

never claim to be a true democracy. Dr. Zakir Hussain sought to

ensure that the seeds of knowledge were germinated in the

minds of as many citizens as possible, with a view to enabling

them to perform their assigned roles on the stage of democracy.

[Dr. Zakir Hussain, as quoted by Justice A.M. Ahmadi, the then

Chief Justice of India, (1996) 2 SCC (J) 1, at 2-3.]

Under Article 41 of the Constitution, right to education,

amongst others, is obligated to be secured by the State by

making effective provision therefor. Fundamental duties

recognized by Article 51A include, amongst others, (i) to

develop the scientific temper, humanism and the spirit of inquiry

and reform; and (ii) 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. None can

be achieved or ensured except by means of education. It is well

accepted by the thinkers, philosophers and academicians that if

JUSTICE, LIBERTY, EQUALITY and FRATERNITY, including social,

economic and political justice, the golden goals set out in the

Preamble to the Constitution of India are to be achieved, the

Indian polity has to be educated and educated with excellence.

Education is a national wealth which must be distributed equally

and widely, as far as possible, in the interest of creating an

egalitarian society, to enable the country to rise high and face

global competition. 'Tireless striving stretching its arms towards

perfection' (to borrow the expression from Rabindranath Tagore)

would not be successful unless strengthened by education.

Education is "\005continual growth of personality, steady

development of character, and the qualitative improvement of

life. A trained mind has the capacity to draw spiritual

nourishment from every experience, be it defeat or victory,

sorrow or joy. Education is training the mind and not stuffing

the brain." (See Eternal Values for A Changing Society, Vol. III

Education for Human Excellence, published by Bharatiya Vidya

Bhavan, Bombay, at p. 19)

"We want that education by which character is formed,

strength of mind is increased, the intellect is expanded, and by

which one can stand on one's own feet." "The end of all

education, all training, should be man-making. The end and aim

of all training is to make the man grow. The training by which

the current and expression of will are brought under control and

become fruitful is called education." (Swami Vivekanand as

quoted in ibid, at p.20)

Education, accepted as a useful activity, whether for

charity or for profit, is an occupation. Nevertheless, it does not

cease to be a service to the society. And even though an

occupation, it cannot be equated to a trade or a business.

In short, education is national wealth essential for the

nation's progress and prosperity.

Articles 19(1)(g), 29(2) and 30(1): inter-relationship between

The right to establish an educational institution, for charity

or for profit, being an occupation, is protected by Article 19(1)

(g). Notwithstanding the fact that the right of a minority to

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establish and administer an educational institution would be

protected by Article 19(1)(g) yet the Founding Fathers of the

Constitution felt the need of enacting Article 30. The reasons

are too obvious to require elaboration. Article 30(1) is intended

to instill confidence in minorities against any executive or

legislative encroachment on their right to establish and

administer educational institution of their choice. Article 30(1)

though styled as a right, is more in the nature of protection for

minorities. But for Article 30, an educational institution, even

though based on religion or language, could have been

controlled or regulated by law enacted under Clause (6) of

Article 19, and so, Article 30 was enacted as a guarantee to the

minorities that so far as the religious or linguistic minorities are

concerned, educational institutions of their choice will enjoy

protection from such legislation. However, such institutions

cannot be discriminated against by the State solely on account of

their being minority institutions. The minorities being

numerically less qua non-minorities, may not be able to protect

their religion or language and such cultural values and their

educational institutions will be protected under Article 30, at the

stage of law making. However, merely because Article 30(1) has

been enacted, minority educational institutions do not become

immune from the operation of regulatory measure because the

right to administer does not include the right to mal-administer.

To what extent the State regulation can go, is the issue. The

real purpose sought to be achieved by Article 30 is to give

minorities some additional protection. Once aided, the autonomy

conferred by the protection of Article 30(1) on the minority

educational institution is diluted as provisions of Article 29(2) will

be attracted. Certain conditions in the nature of regulations can

legitimately accompany the State aid.

As an occupation, right to impart education is a

fundamental right under Article 19(1)(g) and, therefore, subject

to control by clause (6) of Article 19. This right is available to all

citizens without drawing a distinction between minority and non-

minority. Such a right is, generally speaking, subject to laws

imposing reasonable restrictions in the interest of the general

public. In particular, laws may be enacted on the following

subjects: (i) the professional or technical qualifications necessary

for practicing any profession or carrying on any occupation,

trade or business; (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. Care is taken of minorities,

religious or linguistic, by protecting their right to establish and

administer educational institutions of their choice under Article

30. To some extent, what may be permissible by way of

restriction under Article 19(6) may fall foul of Article 30. This is

the additional protection which Article 30(1) grants to the

minorities.

The employment of expressions 'right to establish and

administer' and 'educational institution of their choice' in Article

30(1) gives the right a very wide amplitude. Therefore, a

minority educational institution has a right to admit students of

its own choice, it can, as a matter of its own freewill, admit

students of non-minority community. However, non-minority

students cannot be forced upon it. The only restriction on the

freewill of the minority educational institution admitting students

belonging to non-minority community is, as spelt out by Article

30 itself, that the manner and number of such admissions should

not be violative of the minority character of the institution.

Aid and affiliation or recognition, both by State, bring in

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some amount of regulation as a condition of receiving grant or

recognition. The scope of such regulations, as spelt out by

6-Judge Bench decision in Rev. Sidhrajbhai case AIR 1963 SC

540 and 9-Judge Bench case in St. Xavier's must satisfy the

following tests: (a) the regulation is reasonable and rational; (b)

it is regulative of the essential 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; (c) it is directed towards maintaining excellence of

the education and efficiency of administration so as to prevent it

from falling in standards. These tests have met the approval of

Pai Foundation. However, Rev. Sidhrajbhai's case and St.

Xavier's go on to say that no regulation can be cast in 'the

interest of the nation' if it does not serve the interest of the

minority as well. This proposition (except when it is read in the

light of the opinion of Quadri, J.) stands overruled in Pai

Foundation where Kirpal, CJ, speaking for majority has ruled

(vide para 107) ___ "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". (Also see, paras 117 to 123 and para 138 of Pai

Foundation where Kirpal, CJ has dealt with St. Xavier's in

details). No right can be absolute. Whether a minority or a non-

minority, no community can claim its interest to be above the

national interest.

'Minority' And 'Minority Educational Institutions'

The term 'minority' is not defined in the Constitution.

Chief Justice Kirpal, speaking for the majority in Pai

Foundation, took clue from the provisions of the State

Reorganisation Act and held that in view of India having been

divided into different linguistic States, carved out on the basis of

the language of the majority of persons of that region, it is the

State, and not the whole of India, that shall have to be taken as

the unit for determining linguistic minority viz-a-viz Article 30.

Inasmuch as Article 30(1) places on par religions and languages,

he held that the minority status, whether by reference to

language or by reference to religion, shall have to be determined

by treating the State as unit. The principle would remain the

same whether it is a Central legislation or a State legislation

dealing with linguistic or religious minority. Khare, J. (as His

Lordship then was), Quadri, J. and Variava & Bhan, JJ. in their

separate concurring opinions agreed with Kirpal, CJ. According

to Khare, J., take the population of any State as a unit, find out

its demography and calculate if the persons speaking a particular

language or following a particular religion are less than 50% of

the population, then give them the status of linguistic or

religious minority. The population of the entire country is

irrelevant for the purpose of determining such status. Quadri, J.

opined that the word 'minority' literally means 'a non-dominant'

group. Ruma Pal, J. defined the word 'minority' to mean

'numerically less'. However, she refused to take the State as a

unit for the purpose of determining minority status as, in her

opinion, the question of minority status must be determined with

reference to the country as a whole. She assigned reasons for

the purpose. Needless to say, her opinion is a lone voice. Thus,

with the dictum of Pai Foundation, it cannot be doubted that

minority, whether linguistic or religious, is determinable only by

reference to the demography of a State and not by taking into

consideration the population of the country as a whole.

Such definition of minority resolves one issue but gives

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rise to many a questions when it comes to defining 'minority

educational institution'. Whether a minority educational

institution, though established by a minority, can cater to the

needs of that minority only? Can there be an enquiry to identify

the person or persons who have really established the

institution? Can a minority institution provide cross-border or

inter-State educational facilities and yet retain the character of

minority educational institution?

In Kerala Education Bill, the scope and ambit of right

conferred by Article 30(1) came up for consideration. Article

30(1) does not require that minorities based on religion should

establish educational institutions for teaching religion only or

that linguistic minority should establish educational institution for

teaching its language only. The object underlying Article 30(1)

is to see the desire of minorities being fulfilled that their children

should be brought up properly and efficiently and acquire

eligibility for higher university education and go out in the world

fully equipped with such intellectual attainments as will make

them fit for entering public services, educational institutions

imparting higher instructions including general secular

education. Thus, the twin objects sought to be achieved by

Article 30(1) in the interest of minorities are: (i) to enable such

minority to conserve its religion and language, and (ii) to give a

thorough, good general education to the children belonging to

such minority. So long as the institution retains its minority

character by achieving and continuing to achieve the above said

two objectives, the institution would remain a minority

institution.

The learned Judges in Kerala Education Bill were posed

with the issue projected by Article 29(2). What will happen if

the institution was receiving aid out of State funds? The

apparent conflict was resolved by the Judges employing a

beautiful expression. They said, Article 29(2) and 30(1), read

together, clearly contemplate a minority institution with a

'sprinkling of outsiders' admitted in it. By admitting a member

of non-minority into the minority institution, it does not shed its

character and cease to be a minority institution. The learned

Judges went on to observe that such 'sprinkling' would enable

the distinct language, script and culture of a minority being

propagated amongst non-members of a particular minority

community and that would indeed better serve the object of

conserving the language, religion and culture of that minority.

Chief Justice Hidayatullah, speaking for the Constitution

Bench in State of Kerala, Etc. v. Very Rev. Mother

Provincial, Etc., (1970) 2 SCC 417, has not used the

expression 'sprinkling' but has explained the reason why that

was necessary. He said ___ "It matters not if a single

philanthropic individual with his own means, founds the

institution or the community at large contributes the funds. The

position in law is the same and the intention in either case must

be to found an institution for the benefit of a minority

community by a member of that community. It is equally

irrelevant that in addition to the minority community others from

other minority communities or even from the majority

community can take advantage of these institutions. Such other

communities bring in income and they do not have to be turned

away to enjoy the protection". (para 8)

Much of controversy can be avoided if only the nature of

the right conferred by Articles 29 and 30 is clearly understood.

The nature and content of these articles stands more than

clarified and reconciled inter se as also with other articles if only

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we understand that these two articles are intended to confer

protection on minorities rather than a right as such. In St.

Stephen's, their Lordships clearly held (vide para 28) that

Article 30(1) is "a protective measure only" and further said

(vide para 59) that Article 30(1) implied certain 'privilege'.

Articles 29 and 30 can be better understood and utilized if read

as a protection and/or a privilege of minority rather than an

abstract right.

In this background arises the complex question of trans-

border operation of Article 30(1). Pai Foundation has clearly

ruled in favour of the State (or a province) being the unit for the

purpose of deciding minority. By this declaration of law, certain

consequences follow. First, every community in India becomes a

minority because in one or the other State of the country it will

be in minority ___ linguistic or religious. What would happen if a

minority belonging to a particular State establishes an

educational institution in that State and administers it but for the

benefit of members belonging to that minority domiciled in the

neighbouring State where that community is in majority? Would

it not be a fraud on the Constitution? In St. Stephen's, their

Lordships had ruled that Article 31 is a protective measure only

for the benefit of religious and linguistic minorities and "no illfit

or camouflaged institution should get away with the

constitutional protection" (para 28). The question need not

detain us for long as it stands answered in no uncertain terms in

Pai Foundation. Emphasising the need for preserving its

minority character so as to enjoy the privilege of protection

under Article 30(1), it is necessary that the objective of

establishing the institution was not defeated. "If so, such an

institution is under an obligation to admit the bulk of the

students fitting into the description of the minority community.

Therefore, the students of that group residing in the State in

which the institution is located have to be necessarily admitted

in a large measure because they constitute the linguistic

minority group as far as that State is concerned. In other

words, the predominance of linguistic students hailing from the

State in which the minority educational institution is established

should be present. The management bodies of such institutions

cannot resort to the device of admitting the linguistic students of

the adjoining State in which they are in a majority, under the

fagade of the protection given under Article 30(1)." (para 153).

The same principle applies to religious minority. If any other

view was to be taken, the very objective of conferring the

preferential right of admission by harmoniously constructing

Articles 30(1) and 29(2), may be distorted.

It necessarily follows from the law laid down in Pai

Foundation that to establish a minority institution the

institution must primarily cater to the requirements of that

minority of that State else its character of minority institution is

lost. However, to borrow the words of Chief Justice S.R. Das (in

Kerala Education Bill) a 'sprinkling' of that minority from other

State on the same footing as a sprinkling of non-minority

students, would be permissible and would not deprive the

institution of its essential character of being a minority institution

determined by reference to that State as a unit.

Minority educational institutions: classifiable in three

To establish an educational institution is a Fundamental

Right. Several educational institutions have come up. In Kerala

Education Bill, 'minority educational institutions' came to be

classified into three categories, namely, (i) those which do not

seek either aid or recognition from the State; (ii) those which

want aid; and (iii) those which want only recognition but not aid.

It was held that the first category protected by Article 30(1) can

"exercise that right to their hearts' content" unhampered by

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restrictions. The second category is most significant. Most of the

educational institutions would fall in that category as no

educational institution can, in modern times, afford to subsist

and efficiently function without some State aid. So is with the

third category. An educational institution may survive without

aid but would still stand in need of recognition because in the

absence of recognition, education imparted therein may not

really serve the purpose as for want of recognition the students

passing out from such educational institutions may not be

entitled to admission in other educational institutions for higher

studies and may also not be eligible for securing jobs. Once an

educational institution is granted aid or aspires for recognition,

the State may grant aid or recognition accompanied by certain

restrictions or conditions which must be followed as essential to

the grant of such aid or recognition. This Court clarified in

Kerala Educational Bill that 'the right to establish and

administer educational institutions' conferred by Article 30(1)

does not include the right to mal-administer, and that is very

obvious. Merely because an educational institution belongs to

minority it cannot ask for aid or recognition though running in

unhealthy surroundings, without any competent teachers and

which does not maintain even a fair standard of teaching or

which teaches matters subversive to the welfare of the scholars.

Therefore, the State may prescribe reasonable regulations to

ensure the excellence of the educational institutions to be

granted aid or to be recognized. To wit, it is open to the State to

lay down conditions for recognition such as, an institution must

have a particular amount of funds or properties or number of

students or standard of education and so on. The dividing line is

that in the name of laying down conditions for aid or recognition

the State cannot directly or indirectly defeat the very protection

conferred by Article 30(1) on the minority to establish and

administer educational institutions. Dealing with the third

category of institutions, which seek only recognition but not aid,

their Lordships held that 'the right to establish and administer

educational institutions of their choice' must mean the right to

establish real institutions which will effectively serve the needs of

the community and scholars who resort to these educational

institutions. The dividing line between how far the regulation

would remain within the constitutional limits and when the

regulations would cross the limits and be vulnerable is fine yet

perceptible and has been demonstrated in several judicial

pronouncements which can be cited as illustrations. They have

been dealt with meticulous precision coupled with brevity by S.B.

Sinha, J. in his opinion in Islamic Academy. The

considerations for granting recognition to a minority educational

institution and casting accompanying regulation would be similar

as applicable to a non-minority institution subject to two

overriding considerations: (i) the recognition is not denied solely

on the ground of the educational institution being one belonging

to minority, and (ii) the regulation is neither aimed at nor has

the effect of depriving the institution of its minority status.

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 non-professional

education. However, the terrain of thought as has developed

through successive judicial pronouncements culminating in Pai

Foundation is that looking at the concept of education, in the

backdrop of constitutional provisions, the professional

educational institutions constitute a class by themselves as

distinguished from the educational institutions imparting non-

professional education. It is not necessary for us to go deep into

this aspect of the issue posed before us inasmuch as Pai

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Foundation has clarified that merit and excellence assume

special significance in the context of professional studies. Though

merit and excellence are not anathema to non-professional

education, yet at that level and due to the nature of education

which is more general, merit and excellence do not stand in need

of that degree thereof, as is called for in the context of

professional education.

Difference between professional and non-professional

education institutions

Dealing with unaided minority educational institutions, Pai

Foundation 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 one side and the institutions of

higher education, in particular, those imparting professional

education on the other side. In the former, the scope for merit

based selection is practically nil and hence may not call for

regulation. But in the case of 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 Q.4, in Pai Foundation). 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 mal-administer.

S.B. Sinha, J. has, in his separate opinion in Islamic

Academy, described (in para 199) the situation as a pyramid

like situation and suggested the right of minority to be read

along with 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 minority.

Educational institutions imparting higher education, i.e.

graduate level and above and in particular specialized education

such as technical or professional, constitutes a separate class.

While embarking upon resolving issues of 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 stand on a different footing from other

educational instructions. Apart from other provisions, Article

19(6) is a clear indicator and so are clauses (h) and (j) of Article

51A. Education upto undergraduate level aims at imparting

knowledge just to enrich mind and shape the personality of a

student. Graduate level 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

national interest and strengthening the national wealth,

education included. Education up to undergraduate level on one

hand and education at graduate and post-graduate 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. A number of legislations occupying the field of

education whose constitutional validity has been tested and

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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

post-graduate, post-graduate 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.

Having so stated and clarified these principles which would

be germane to answering the four questions posed before us,

now we take up each of the four questions seriatim and answer

the same.

And yet, before we do so, let us quote and reproduce

paragraphs 68, 69 and 70 from Pai Foundation to enable easy

reference thereto as the core of controversy touching the four

questions which we are dealing with seems to have originated

therefrom. These paragraphs read as under:

"68.(I) 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 merit-based selection

while, at the same time, giving the

management sufficient discretion in admitting

students. This can be done through various

methods.

(II) For instance, a certain percentage of

the seats can be reserved for admission by the

management out of those students who have

passed the common entrance test held by itself

or by the State/university and have applied to

the college concerned for admission, while the

rest of the seats may be filled up on the basis

of counselling by the State agency. This will

incidentally take care of poorer and backward

sections of the society. The prescription of

percentage for this purpose has to be done by

the Government according to the local needs

and different percentages can be fixed for

minority unaided and non-minority unaided

and professional colleges. The same principles

may be applied to other non-professional but

unaided educational institutions viz. graduation

and postgraduation non-professional colleges

or institutes.

69. In such professional unaided

institutions, the management will have the

right to select teachers as per the qualifications

and eligibility conditions laid down by the

State/university subject to adoption of a

rational procedure of selection. A rational fee

structure should be adopted by the

management, which would not be entitled to

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charge a capitation fee. Appropriate machinery

can be devised by the State or university to

ensure that no capitation fee is charged and

that there is no profiteering, though a

reasonable surplus for the furtherance of

education is permissible. Conditions granting

recognition or affiliation can broadly cover

academic and educational matters including

the welfare of students and teachers.

70. It is well established all over the world

that those who seek professional education

must pay for it. The number of seats available

in government and government-aided colleges

is very small, compared to the number of

persons seeking admission to the medical and

engineering colleges. All those eligible and

deserving candidates who could not be

accommodated in government colleges would

stand deprived of professional education. This

void in the field of medical and technical

education has been filled by institutions that

are established in different places with the aid

of donations and the active part taken by

public-minded individuals. The object of

establishing an institution has thus been to

provide technical or professional education to

the deserving candidates, and is not

necessarily a commercial venture. In order

that this intention is meaningful, the institution

must be recognized. At the school level, the

recognition or affiliation has to be sought from

the educational authority or the body that

conducts the school-leaving examination. It is

only on the basis of that examination that a

school-leaving certificate is granted, which

enables a student to seek admission in further

courses of study after school. A college or a

professional educational institution has to get

recognition from the university concerned,

which normally requires certain conditions to

be fulfilled before recognition. It has been held

that conditions of affiliation or recognition,

which pertain to the academic and educational

character of the institution and ensure

uniformity, efficiency and excellence in

educational courses are valid, and that they do

not violate even the provisions of Article 30 of

the Constitution; but conditions that are laid

down for granting recognition should not be

such as may lead to governmental control of

the administration of the private educational

institutions.

In Islamic Academy the majority has (vide para 12)

paraphrased the contents of para 68 by dividing it into seven

parts. S.B. Sinha, J has read the same para 68 by paraphrasing

it in five parts (vide para 172 of his opinion). However, we have

reproduced para 68 by dividing it into two parts. A reading of

the majority judgment in Pai Foundation in its entirety

supports the conclusion that while the first part of para 68 is law

laid down by the majority, the second part is only by way of

illustration, tantamounting to just a suggestion or observation,

as to how the State may devise a possible mechanism so as to

take care of poor and backward sections of the society. The

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second part of para 68 cannot be read as law laid down by the

Bench. It is only an observation in passing or an illustrative

situation which may be reached by consent or agreement or

persuasion.

A Comment

It was submitted at the Bar that a flourish of language or

just a flow of thoughts placed on paper when read in isolation

gives an impression as if such is the law laid down though in

reality even the author of the judgment had not intended to do

so. A mere observation or a reasoning leading to formulation of

ultimate opinion on a disputed question of law cannot be read as

a ratio of the decision. Such submissions forcefully advanced at

the Bar, have been kept in view by us while reading the several

opinions in Pai Foundation and Islamic Academy. In Islamic

Academy the petitioners-applicants were private unaided

institutions (minority and non-minority both) and the petitioners-

applicants before us are also private unaided institutions, non-

minority and minority (religions and linguistic) both. It was

submitted that the majority opinion in Islamic Academy has,

while embarking upon clarifying the law laid down in Pai

Foundation, not only reiterated some of the propositions of law

laid down in Pai Foundation but has also added something

more which was not said in Pai Foundation and the two have

been so intertwined as to become inseparable and that has been

the reason for a spate of litigation post Islamic Academy. S.B.

Sinha, J., writing his separate opinion in Islamic Academy, has

not himself chosen to say whether his is a concurring opinion or

a dissenting one. However, it was pointed out that S.B. Sinha,

J's opinion is analytical, clear and more in consonance with the

majority opinion of Pai Foundation. It was urged that the task

was difficult and unwittingly, for the sake of aiming at brevity,

certain omissions have taken place. Illustratively it was pointed

out that vide para 59 of Pai Foundation Kirpal, CJ, has said ___

"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."

(emphasis by us)

In Islamic Academy, vide para 70, sub-para (2)(i)(a),

the abovesaid passage has been quoted as under:-

"Admission to professional colleges

should be based on merit by a common

entrance test conducted by the government

agencies".

(emphasis by us)

It was pointed out that Pai Foundation vide para 59 was

just making a note of what is 'prevailing as the usual systems'

for admitting students but Islamic Academy vide para 70 gives

an impression that the view taken in Pai Foundation is to

confine to common entrance test conducted by the government

agencies as the only source of admission to professional

colleges.

While expressing their appreciation of the task performed

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in Islamic Academy of attempting resolution of several issues

raised post Pai Foundation, the learned counsel addressing us

have tried to put across and demonstrate several such anomalies

which Islamic Academy read in juxta position with Pai

Foundation has raised.

Having generally dealt with the several legal propositions,

relevant for our purpose, now we come to specifically dealing

with the questions before us.

Q.1. Unaided educational institutions; appropriation of

quota by State and enforcement of reservation policy

First, we shall deal with minority unaided institutions.

We have in the earlier part of this judgment referred to

Kerala Education Bill and stated the three categories of

minority educational institutions as classified and dealt with

therein. The 7-Judge Bench decision in Kerala Education Bill

still holds the field and has met the approval of 11-Judge Bench

in Pai Foundation. We cull out and state what Pai Foundation

has to say about such category of institutions:-

(i) Minority educational institution, unaided and

unrecognized

Pai Foundation is unanimous on the view that the right

to establish and administer an institution, the phrase as

employed in Article 30(1) of the Constitution, comprises of 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 non-teaching); and (e) to take

action if there is dereliction of duty on the part of any of the

employees. (para 50)

A minority educational institution may choose not to take

any aid from the State and may also not seek any recognition or

affiliation. It may be imparting such instructions and may have

students learning such knowledge that do not stand in need of

any recognition. Such institutions would be those where

instructions are imparted for the sake of instructions and

learning is only for the sake of learning and acquiring

knowledge. Obviously, such institutions would fall in the

category of those who would exercise their right under the

protection and privilege conferred by Article 30(1) "to their

hearts content" unhampered by any restrictions excepting those

which are in national interest based on considerations such as

public safety, national security and national integrity or are

aimed at preventing exploitation of students or teaching

community. Such institutions cannot indulge in any activity

which is violative of any law of the land.

They are free to admit all students of their own minority

community if they so choose to do. (para 145, Pai Foundation)

(ii) Minority unaided educational institutions asking for

affiliation or recognition

Affiliation or recognition by the State or the Board or the

University competent to do so, cannot be denied solely on the

ground that the institution is a minority educational institution.

However, the urge or need for affiliation or recognition brings in

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the concept of regulation by way of laying down conditions

consistent with the requirement of ensuring merit, excellence of

education and preventing mal-administration. For example,

provisions can be made indicating the quality of the teachers by

prescribing the minimum qualifications that they must possess

and the courses of studies and curricula. The existence of

infrastructure sufficient for its growth can be stipulated as a pre-

requisite to the grant of recognition or affiliation. However,

there cannot be interference in the day-to-day administration.

The essential ingredients of the management, including

admission of students, recruiting of staff and the quantum of fee

to be charged, cannot be regulated. (para 55, Pai Foundation)

Apart from the generalized position of law that right to

administer does not include right to mal-administer, an

additional source of power to regulate by enacting condition

accompanying affiliation or recognition exists. Balance has to be

struck between the two objectives: (i) that of ensuring the

standard of excellence of the institution, and (ii) that of

preserving the right of the minority to establish and administer

its educational institution. Subject to reconciliation of the two

objectives, any regulation accompanying affiliation or recognition

must satisfy the triple tests: (i) the test of resonableness and

rationality, (ii) the test that the regulation would be conducive to

making the institution an effective vehicle of education for the

minority community or other persons who resort to it, and (iii)

that there is no in-road on the protection conferred by Article

30(1) of the Constitution, that is, by framing the regulation the

essential character of the institution being a minority educational

institution, is not taken away. (para 122, Pai Foundation)

(iii) Minority educational institutions receiving State aid

Conditions which can normally be permitted to be

imposed on the educational institutions receiving the grant must

be related to the proper utilization of the grant and fulfillment of

the objectives of the grant without diluting the minority status of

the educational institution, as held in Pai Foundation (See para

143 thereof). As aided institutions are not before us and we are

not called upon to deal with their cases, we leave the discussion

at that only.

So far as appropriation of quota by the State and

enforcement of its reservation policy is concerned, we do not see

much of difference between non-minority and minority unaided

educational institutions. We find great force in the submission

made on behalf of the petitioners that the States have no power

to insist on seat sharing in the unaided private professional

educational institutions by fixing a quota of seats between the

management and the State. The State cannot insist on private

educational institutions which receive no aid from the State to

implement State's policy on reservation for granting admission

on lesser percentage of marks, i.e. on any criterion except merit.

As per our understanding, neither in the judgment of Pai

Foundation nor in the Constitution Bench decision in Kerala

Education Bill, which was approved by Pai Foundation, there

is anything which would allow the State to regulate or control

admissions in the unaided professional educational institutions so

as to compel them to give up a share of the available seats to

the candidates chosen by the State, as if it was filling the seats

available to be filled up at its discretion in such private

institutions. This would amount to nationalization of seats which

has been specifically disapproved in Pai Foundation. Such

imposition of quota of State seats or enforcing reservation policy

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of the State on available seats in unaided professional

institutions are acts constituting serious encroachment on the

right and autonomy of private professional educational

institutions. Such appropriation of seats can also not be held to

be a regulatory measure in the interest of minority within the

meaning of Article 30(1) or a reasonable restriction within the

meaning of Article 19(6) of the Constitution. Merely because the

resources of the State in providing professional education are

limited, private educational institutions, which intend to provide

better professional education, cannot be forced by the State to

make admissions available on the basis of reservation policy to

less meritorious candidate. Unaided institutions, as they are not

deriving any aid from State funds, can have their own

admissions if fair, transparent, non-exploitative and based on

merit.

The observations in paragraph 68 of the majority opinion

in Pai Foundation, on which the learned counsel for the parties

have been much at variance in their submissions, according to

us, are not to be read disjointly from other parts of the main

judgment. A few observations contained in certain paragraphs of

the judgment in Pai Foundation, if read in isolation, appear

conflicting or inconsistent with each other. But if the

observations made and the conclusions derived are read as a

whole, the judgment nowhere lays down that unaided private

educational institutions of minorities and non-minorities can be

forced to submit to seat sharing and reservation policy of the

State. Reading relevant parts of the judgment on which learned

counsel have made comments and counter comments and

reading the whole judgment (in the light of previous judgments

of this Court, which have been approved in Pai Foundation) in

our considered opinion, observations in paragraph 68 merely

permit unaided private institutions to maintain merit as the

criterion of admission by voluntarily agreeing for seat sharing

with the State or adopting selection based on common entrance

test of the State. There are also observations saying that they

may frame their own policy to give free-ships and scholarships to

the needy and poor students or adopt a policy in line with the

reservation policy of the state to cater to the educational needs

of weaker and poorer sections of the society.

Nowhere in Pai Foundation, either in the majority or in

the minority opinion, have we found any justification for

imposing seat sharing quota by the State on unaided private

professional educational institutions and reservation policy of the

State or State quota seats or management seats.

We make it clear that the observations in Pai Foundation

in paragraph 68 and other paragraphs mentioning fixation of

percentage of quota are to be read and understood as possible

consensual arrangements which can be reached between

unaided private professional institutions and the State.

In Pai Foundation, it has been very clearly held at

several places that unaided professional institutions should be

given greater autonomy in determination of admission procedure

and fee structure. State regulation should be minimal and only

with a view to maintain fairness and transparency in admission

procedure and to check exploitation of the students by charging

exorbitant money or capitation fees.

For the aforesaid reasons, we cannot approve of the

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scheme evolved in Islamic Academy to the extent it allows

States to fix quota for seat sharing between management and

the States on the basis of local needs of each State, in the

unaided private educational institutions of both minority and

non-minority categories. That part of the judgment in Islamic

Academy, in our considered opinion, does not lay down the

correct law and runs counter to Pai Foundation.

NRI seats

Here itself we are inclined to deal with the question as to

seats allocated for Non-Resident Indians ('NRI', for short) or NRI

seats. It is common knowledge that some of the institutions

grant admissions to certain number of students under such

quota by charging a higher amount of fee. In fact, the term

'NRI' in relation to admissions is a misnomer. By and large, we

have noticed in cases after cases coming to this Court, neither

the students who get admissions under this category nor their

parents are NRIs. In effect and reality, under this category, less

meritorious students, but who can afford to bring more money,

get admission. During the course of hearing, it was pointed out

that a limited number of such seats should be made available as

the money brought by such students admitted against NRI quota

enables the educational institutions to strengthen its level of

education and also to enlarge its educational activities. It was

also pointed out that people of Indian origin, who have migrated

to other countries, have a desire to bring back their children to

their own country as they not only get education but also get

reunited with Indian cultural ethos by virtue of being here. They

also wish the money which they would be spending elsewhere on

education of their children should rather reach their own

motherland. A limited reservation of such seats, not exceeding

15%, in our opinion, may be made available to NRIs depending

on the discretion of the management subject to two conditions.

First, such seats should be utilized bona fide by the NRIs only

and for their children or wards. Secondly, within this quota, the

merit should not be given a complete go-by. The amount of

money, in whatever form collected from such NRIs, should be

utilized for benefiting students such as from economically weaker

sections of the society, whom, on well defined criteria, the

educational institution may admit on subsidized payment of their

fee. To prevent misutilisation of such quota or any malpractice

referable to NRI quota seats, suitable legislation or regulation

needs to be framed. So long as the State does not do it, it will

be for the Committees constituted pursuant to Islamic

Academy's direction to regulate.

Our answer to the first question is that neither the policy

of reservation can be enforced by the State nor any quota or

percentage of admissions can be carved out to be appropriated

by the State in a minority or non-minority unaided educational

institution. Minority institutions are free to admit students of

their own choice including students of non-minority community

as also members of their own community from other States,

both to a limited extent only and not in a manner and to such an

extent that their minority educational institution status is lost. If

they do so, they lose the protection of Article 30(1).

Q.2. Admission procedure of unaided educational

institutions.

So far as the minority unaided institutions are concerned

to admit students being one of the components of "right to

establish and administer an institution", the State cannot

interfere therewith. Upto the level of undergraduate education,

the minority unaided educational institutions enjoy total

freedom.

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However, different considerations would apply for graduate

and post-graduate level of education, as also for technical and

professional educational institutions. Such education cannot be

imparted by any institution unless recognized by or affiliated

with any competent authority created by law, such as a

University, Board, Central or State Government or the like.

Excellence in education and maintenance of high standards at

this level are a must. To fulfill these objectives, the State can

and rather must, in national interest, step in. The education,

knowledge and learning at this level possessed by individuals

collectively constitutes national wealth.

Pai Foundation has already held that the minority status

of educational institutions is to be determined by treating the

States as units. Students of that community residing in other

States where they are not in minority, shall not be considered to

be minority in that particular State and hence their admission

would be at par with other non-minority students of that State.

Such admissions will be only to a limited extent that is like a

'sprinkling' of such admissions, the term we have used earlier

borrowing from Kerala Education Bill, 1957. In minority

educational institutions, aided or unaided, admissions shall be at

the State level. Transparency and merit shall have to be

assured.

Whether minority or non-minority institutions, there may

be more than one similarly situated institutions imparting

education in any one discipline, in any State. The same aspirant

seeking admission to take education in any one discipline of

education shall have to purchase admission forms from several

institutions and appear at several admission tests conducted at

different places on same or different dates and there may be a

clash of dates. If the same candidate is required to appear in

several tests, he would be subjected to unnecessary and

avoidable expenditure and inconvenience. There is nothing

wrong in an entrance test being held for one group of institutions

imparting same or similar education. Such institutions situated

in one State or in more than one State may join together and

hold a common entrance test or the State may itself or through

an agency arrange for holding of such test. Out of such common

merit list the successful candidates can be identified and chosen

for being allotted to different institutions depending on the

courses of study offered, the number of seats, the kind of

minority to which the institution belongs and other relevant

factors. Such an agency conducting Common Entrance Test

(CET, for short) must be one enjoying utmost credibility and

expertise in the matter. This would better ensure the fulfillment

of twin objects of transparency and merit. CET is necessary in

the interest of achieving the said objectives and also for saving

the student community from harassment and exploitation.

Holding of such common entrance test followed by centralized

counseling or, in other words, single window system regulating

admissions does not cause any dent in the right of minority

unaided educational institutions to admit students of their

choice. Such choice can be exercised from out of list of

successful candidates prepared at the CET without altering the

order of merit inter se of the students so chosen.

Pai Foundation has held that minority unaided

institutions can legitimately claim unfettered fundamental right

to choose the students to be allowed admissions and the

procedure therefor subject to its being fair, transparent and non-

exploitative. The same principle applies to non-minority unaided

institutions. There may be a single institution imparting a

particular type of education which is not being imparted by any

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other institution and having its own admission procedure

fulfilling the test of being fair, transparent and non-exploitative.

All institutions imparting same or similar professional education

can join together for holding a common entrance test satisfying

the abovesaid triple tests. The State can also provide a

procedure of holding a common entrance test in the interest of

securing fair and merit-based admissions and preventing mal-

administration. The admission procedure so adopted by private

institution or group of institutions, if it fails to satisfy all or any of

the triple tests, indicated hereinabove, can be taken over by the

State substituting its own procedure. The second question is

answered accordingly.

It needs to be specifically stated that having regard to the

larger interest and welfare of the student community to promote

merit, achieve excellence and curb mal-practices, it would be

permissible to regulate admissions by providing a centralized

and single window procedure. Such a procedure, to a large

extent, can secure grant of merit based admissions on a

transparent basis. Till regulations are framed, the admission

committees can oversee admissions so as to ensure that merit is

not the casualty.

Q. 3 Fee, regulation of

To set up a reasonable fee structure is also a component of

"the right to establish and administer an institution" within the

meaning of Article 30(1) of the Constitution, as per the law

declared in Pai Foundation. Every institution is free to devise

its own fee structure subject to the limitation that there can be

no profiteering and no capitation fee can be charged directly or

indirectly, or in any form (Paras 56 to 58 and 161 [Answer to

Q.5(c)] of Pai Foundation are relevant in this regard).

Capitation Fees

Capitation fee cannot be permitted to be charged and no

seat can be permitted to be appropriated by payment of

capitation fee. 'Profession' has to be distinguished from

'business' or a mere 'occupation'. While in business, and to a

certain extent in occupation, there is a profit motive, profession

is primarily a service to society wherein earning is secondary or

incidental. A student who gets a professional degree by

payment of capitation fee, once qualified as a professional, is

likely to aim more at earning rather than serving and that

becomes a bane to the society. The charging of capitation fee

by unaided minority and non-minority institutions for

professional courses is just not permissible. Similarly,

profiteering is also not permissible. Despite the legal position,

this Court cannot shut its eyes to the hard realities of

commercialization of education and evil practices being adopted

by many institutions to earn large amounts for their private or

selfish ends. If capitation fee and profiteering is to be checked,

the method of admission has to be regulated so that the

admissions are based on merit and transparency and the

students are not exploited. It is permissible to regulate

admission and fee structure for achieving the purpose just

stated.

Our answer to Question-3 is that every institution is free to

devise its own fee structure but the same can be regulated in the

interest of preventing profiteering. No capitation fee can be

charged.

Q.4. Committees formed pursuant to Islamic Academy

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Most vehement attack was laid by all the learned counsel

appearing for the petitioner-applicants on that part of Islamic

Academy which has directed the constitution of two committees

dealing with admissions and fee structure. Attention of the Court

was invited to paras 35,37, 38, 45 and 161 (answer to question

9) of Pai Foundation wherein similar scheme framed in Unni

Krishnan was specifically struck down. Vide para 45, Chief

Justice Kirpal has clearly ruled that the decision in Unni

Krishnan 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, MCI, the Central and the State Governments etc.

are overruled. Vide para 161, Pai Foundation upheld Unni

Krishnan to the extent to which it holds the right to primary

education as a fundamental right, but the scheme was overruled.

However, the principle that there should not be capitation fee or

profiteering was upheld. Leverage was allowed to educational

institutions to generate reasonable surplus to meet cost of

expansion and augmentation of facilities which would not

amount to profiteering. It was submitted that Islamic Academy

has once again restored such Committees which were done away

with by Pai Foundation.

The learned senior counsel appearing for different private

professional institutions, who have questioned the scheme of

permanent Committees set up in the judgment of Islamic

Academy, very fairly do not dispute that even unaided

minority institutions can be subjected to regulatory measures

with a view to curb commercialization of education, profiteering

in it and exploitation of students. Policing is permissible but not

nationalization or total take over, submitted Shri Harish Salve,

the learned senior counsel. Regulatory measures to ensure

fairness and transparency in admission procedures to be based

on merit have not been opposed as objectionable though a

mechanism other than formation of Committees in terms of

Islamic Academy was insisted on and pressed for. Similarly, it

was urged that regulatory measures, to the extent permissible,

may form part of conditions of recognition and affiliation by the

university concerned and/or MCI and AICTE for maintaining

standards of excellence in professional education. Such

measures have also not been questioned as violative of the

educational rights of either minorities or non- minorities.

The two committees for monitoring admission

procedure and determining fee structure in the judgment of

Islamic Academy, are in our view, permissive as regulatory

measures aimed at protecting the interest of the student

community as a whole as also the minorities themselves, in

maintaining required standards of professional education on non-

exploitative terms in their institutions. Legal provisions made by

the State Legislatures or the scheme evolved by the Court for

monitoring admission procedure and fee fixation do not violate

the right of minorities under Article 30(1) or the right of

minorities and non-minorities under Article 19(1)(g). They are

reasonable restrictions in the interest of minority institutions

permissible under Article 30(1) and in the interest of general

public under Article 19(6) of the Constitution.

The suggestion made on behalf of minorities and non-

minorities that the same purpose for which Committees have

been set up can be achieved by post-audit or checks after the

institutions have adopted their own admission procedure and fee

structure, is unacceptable for the reasons shown by experience

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of the educational authorities of various States. 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.

Non-minority unaided institutions can also be subjected to

similar restrictions which are found reasonable and in the

interest of student community. Professional education should be

made accessible on the criterion of merit and on non-exploitative

terms to all eligible students on an uniform basis. Minorities or

non-minorities, in exercise of their educational rights in the field

of professional education have an obligation and a duty to

maintain requisite standards of professional education by giving

admissions based on merit and making education equally

accessible to eligible students through a fair and transparent

admission procedure and on a reasonable fee-structure.

In our considered view, on the basis of judgment in Pai

Foundation and various previous judgments of this Court which

have been taken into consideration in that case, the scheme

evolved of setting up the two Committees for regulating

admissions and determining fee structure by the judgment in

Islamic Academy cannot be faulted either on the ground of

alleged infringement of Article 19(1)(g) in case of unaided

professional educational institutions of both categories and

Article 19(1)(g) read with Article 30 in case of unaided

professional institutions of minorities.

A fortiori, we do not see any impediment to the

constitution of the Committees as a stopgap or adhoc

arrangement made in exercise of the power conferred on this

Court by Article 142 of the Constitution until a suitable

legislation or regulation framed by the State steps in. Such

Committees cannot be equated with Unni Krishnan Committees

which were supposed to be permanent in nature.

However, we would like to sound a note of caution to such

Committees. The learned counsel appearing for the petitioners

have severely criticised the functioning of some of the

Committees so constituted. It was pointed out by citing concrete

examples that some of the Committees have indulged in

assuming such powers and performing such functions as were

never given or intended to be given to them by Islamic

Academy. Certain decisions of some of the Committees were

subjected to serious criticism by pointing out that the fee

structure approved by them was abysmally low which has

rendered the functioning of the institutions almost impossible or

made the institutions run into losses. In some of the

institutions, the teachers have left their job and migrated to

other institutions as it was not possible for the management to

retain talented and highly qualified teachers against the salary

permitted by the Committees. Retired High Court Judges

heading the Committees are assisted by experts in accounts and

management. They also have the benefit of hearing the

contending parties. We expect the Committees, so long as they

remain functional, to be more sensitive and to act rationally and

reasonably with due regard for realities. They should refrain

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from generalizing fee structures and, where needed, should go

into accounts, schemes, plans and budgets of an individual

institution for the purpose of finding out what would be an ideal

and reasonable fee structure for that institution.

We make it clear that in case of any individual institution,

if any of the Committees is found to have exceeded its powers

by unduly interfering in the administrative and financial matters

of the unaided private professional institutions, the decision of

the Committee being quasi-judicial in nature, would always be

subject to judicial review.

On Question-4, our conclusion, therefore, is that the

judgment in Islamic Academy, in so far as it evolves the

scheme of two Committees, one each for admission and fee

structure, does not go beyond the law laid down in Pai

Foundation and earlier decisions of this Court, which have been

approved in that case. The challenge to setting up of two

Committees in accordance with the decision in Islamic

Academy, therefore, fails. However, the observation by way

clarification, contained in the later part of para 19 of Islamic

Academy which speaks of quota and fixation of percentage by

State Government is rendered redundant and must go in view of

what has been already held by us in the earlier part of this

judgment while dealing with Question No.1.

Epilogue

We have answered the four questions formulated by us in

the manner indicated hereinabove. All other issues which we

leave untouched, may be dealt with by the regular Benches

which will take up individual cases for decision.

We have placed on record in the earlier part of this

judgment and, yet, before parting we would like to reiterate,

that certain recitals, certain observations and certain findings in

Pai Foundation are contradictory inter se and such conflict can

only be resolved by a Bench of a coram larger than Pai

Foundation. There are several questions which have remained

unanswered and there are certain questions which have propped

up post Pai Foundation and Islamic Academy. To the extent

the area is left open, the Benches hearing individual cases after

this judgment would find the answers. Issues referable to those

areas which are already covered by Pai Foundation and yet

open to question shall have to be answered by a Bench of a

larger coram than Pai Foundation. We leave those issues to be

taken care of by posterity.

We are also conscious of the fact that admission process in

several professional educational institutions has already

commenced. Some admissions have been made or are in the

process of being made in consonance with the schemes and

procedures as approved by Committees and in some cases

pursuant to interim directions made by this Court or by the High

Courts. This judgment shall not have the effect of disturbing the

admissions already made or with regard to which the process

has already commenced. The law, as laid down in this

judgment, shall be given effect to from the academic year

commencing next after the pronouncement of this judgment.

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It is for the Central Government, or for the State

Governments, in the absence of a Central legislation, to come

out with a detailed well thought out legislation on the subject.

Such a legislation is long awaited. States must act towards this

direction. Judicial wing of the State is called upon to act when

the other two wings, the Legislature and the Executive, do not

act. Earlier the Union of India and the State Governments act,

the better it would be. The Committees regulating admission

procedure and fee structure shall continue to exist, but only as a

temporary measure and an inevitable passing phase until the

Central Government or the State Governments are able to

devise a suitable mechanism and appoint competent authority in

consonance with the observations made hereinabove. Needless

to say, any decision taken by such Committees and by the

Central or the State Governments, shall be open to judicial review in

accordance with the settled parameters for the exercise of such jurisdiction.

Before parting, we would like to place on record our appreciation of

the valuable assistance rendered by all the learned senior counsel and other

counsel appearing in the case and who have addressed us, highlighting very

many aspects of the ticklish issues in the field of professional education

which have propped up for decision in the light of the 11-Judge Bench

decision in Pai Foundation and Constitution Bench decision in Islamic

Academy. But for their assistance, the issues would have defied resolution.

All the petitions, Civil Appeals and IAs shall now be listed before

appropriate Benches for hearing.