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CASE NO.: Writ Petition (civil)  350 of 1993

PETITIONER: Islamic Academy of Edn. & Anr.           

RESPONDENT: Vs. State of Karnataka & Ors.                               .

DATE OF JUDGMENT: 14/08/2003

BENCH: S.B. SINHA

JUDGMENT: J U D G M E N T

with SLP(C) Nos. 11286, 11391, 11189- 11195/2003, W.P.(C) Nos. 355/1993, 174/2003,  T.P.(C) Nos. 286-288/2003, SLP(C) Nos. 3465- 3466, 3942-3943, 4002-4003, 9253-9254,  10561/2003, W.P.(C)No. 261, 275, 280 & 289/2003

S.B. SINHA, J :

INTRODUCTORY REMARKS :

Imparting of education is a State function.  The State, however,  having regard to its financial and other constraints is not always in a  position to perform its duties.  The function of imparting education  has been, to a large extent, taken over by the citizens themselves.   Some do it as pure charity; some do it for protection of their minority  rights whether based on religion or language; and some do it by way of  their "occupation".  Some such institutions are aided by the State and  some are unaided.

Privately managed educational institutions imparting professional  education in the fields of medicine, dentistry and engineering have  spurted in the last few decades.  The right of the minorities to  establish an institution of their own choice in terms of clause (1) of  Article 30 of the Constitution of India is recognized; so is the right  of a citizen who intends to establish an institution under Article  19(1)(g) thereof.  However, the fundamental right of a citizen to  establish an educational institution and in particular a professional  institution is not absolute.  These rights are subject to regulations  and laws imposing reasonable restrictions.  Such reasonable  restrictions in public interest can be imposed under clause (6) of  Article 19 and regulations under Article 30 of the Constitution of  India.  The right to establish an educational institution, although  guaranteed under the Constitution, recognition or affiliation is not.   Recognition or affiliation of professional institutions must be in  terms of the statute.   

       Entry 66 of List I and Entry 25 of List III of the Seventh  Schedule of the Constitution of India provide for legislative field in  this behalf.  Various States have enacted laws for regulating admission  and prohibiting charging of capitation fee.  The said legislations also   provide for employment of teachers, their conditions of service,  discipline in institution and several other matters.  Such regulatory  measures have been the subject matter of various decisions of this  Court.

BACKGROUND :

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        This Court in Unni Krishnan J.P.and Others vs. State of Andhra  Pradesh and Others  [(1993) 1 SCC 645] laid down a Scheme.  In terms of  the said Scheme the self-financed institutions were entitled to admit  50% of students of their choice, whereas rest of the seats were to be  filled in by the State.  For admission of students, a common entrance  test was to be held.  Provisions for free seats and payment seats were  made therein.  The State and various statutory authorities including  the Medical Council of India, University Grants Commission and All  India Council for Technical Education made and/or amended regulations  so as to bring them at par with the said Scheme.  

The Islamic Academy of Education filed a writ petition in the  year 1993 questioning the validity thereof.  The said writ petition  along with connected matters were placed before a Bench of five Judges,  which was prima facie of the view that Article 30 of the Constitution  of India did not clothe minority educational institutions with the  power to adopt its own method of selecting students.      

This Court in T.M.A. Pai Foundation and Others Vs. State of  Karnataka and Others [(2002) 8 SCC 481] noticed the same stating :

"The hearing of these cases has had a chequered  history. Writ Petition No. 350 of 1993 filed by  the Islamic Academy of Education and connected  petitions were placed before a Bench of 5  Judges. As the Bench was prima facie of the  opinion that Article 30 did not clothe a  minority educational institution with the power  to adopt its own method of selection and the  correctness of the decision of this Court in  St. Stephen’s College v. University of Delhi  [(1992) 1 SCC 558] was doubted, it was directed  that the questions that arose should be  authoritatively answered by a larger Bench.  These cases were then placed before a Bench of  7 Judges. The questions framed were recast and  on 6th February, 1997, the Court directed that  the matter be placed a Bench of at least 11  Judges, as it was felt that in view of the  Forty-Second Amendment to the Constitution,  whereby "education" had been included in Entry  25 of List III of the Seventh Schedule, the  question of who would be regarded as a  "minority" was required to be considered  because the earlier case laws related to the  pre-amendment era, when education was only in  the State List. When the cases came up for  hearing before an eleven Judge Bench, during  the course of hearing on 19th March, 1997, the  following order was passed:- "Since a doubt has arisen during the  course of our arguments as to whether  this Bench would feel itself bound by the  ratio propounded in -- In Re Kerala  Education Bill, 1957 (1959 SCR 955) and  the Ahmedabad St. Xavier’s College  Society v. State of Gujarat, 1975(1) SCR  173, it is clarified that this sized  Bench would not feel itself inhibited by  the views expressed in those cases since  the present endeavour is to discern the  true scope and interpretation of Article  30(1) of the Constitution, which being  the dominant question would require

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examination in its pristine purity. The  factum is recorded."         The eleven Judge Bench answered various questions raised therein.         The petitioners/applicants before us are private unaided  institutions.  Most of them have been established by a Society, Trust  or persons belonging to the minority community based on religion or  language.

       By reason of the impugned legislations/ Government orders, the  State Governments, inter alia, while seeking to lay down the government  quota in relation to such unaided institutions, directed that while  filling up the same, the self-financed institutions must follow the  merit list prepared by the State on the basis of External Common  Entrance Test (CET).  The State Governments also fixed/regulated fees  to be charged from the students by such institutions.  Validity or otherwise of the said rules/regulations/ Governmental  Orders came up for consideration before several High Courts.  Different  High Courts in their Orders while granting interim reliefs, construed  the judgment of this Court in T.M.A. Pai Foundation (supra)  differently.  The perceptions of the States as also the High Courts in  reading the judgment are widely varied.  In the aforementioned  situation, several applications have been filed in the matters which  were disposed of by the 11-Judge Bench of this Court.  Some  institutions as also the State of Kerala had also filed Special Leave  Petitions against the interim orders passed by the High Courts.  Some  writ petitions under Article 32 of the Constitution of India have also  been filed.  Keeping in view the importance of the question, this Court  issued notices to all the State Governments.         In the Special Leave Petitions and the Writ Petitions several  other questions have also been raised but as at present advised this  Bench intends to confine itself to the interpretation of judgment of  this Court in T.M.A. Pai Foundation (supra) leaving other questions  open for consideration by the appropriate benches.         In these matters this Court is not at all concerned with the  rights of the aided minority and non-minority institutions and  restrictions imposed by the States upon them but we are concerned only  with the rights and obligations of private unaided institutions run by  the minorities and non-minorities. SUBMISSIONS MADE ON BEHALF OF WRIT PETITIONERS - APPLICANTS:

       It was urged that while interpreting the judgment, this Court  should bear in mind the salient aspects of the findings in T.M.A. Pai  (supra) that is to say :  I       ON THE FUNDAMENTAL RIGHTS OF EDUCATIONAL INSTITUTIONS:

(i)     Citizens have a fundamental right to establish and administer  educational institutions under Article 19(1)(g), 21, 26 and 30 of  the Constitution (Paras 25 & 26) and, thus, the said rights  cannot be taken away/ restricted. (ii)    Such a fundamental right extends to education at all levels  including professional education. (Para 161) (iii)   The right to establish and administer educational institutions  comprises of the right to  (a)     admit students (b)     set up a reasonable fee structure (c)     constitute a governing body (d)     appoint staff and take disciplinary action  (Para 50) (iv)    Although such rights are subject to reasonable restrictions, but  the same must be for the betterment of the institution and as  such the right under Article 19(1)(g) and Article 30 cannot be  undermined. (Paras 135-138) (v)     Restrictions can be imposed only at the time of grant of  recognition or affiliation of the institutions and not  thereafter. (vi)    The right of the citizens vis-Ã -vis the minority communities must

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be judged keeping in view the distinction between (a)     unaided and aided institutions (b)     minority and non-minority institutions (Paras 46-73); II      ON THE DEGREE OF CONTROL         It was contended that although some amount of regulation/ control  is permissible but the validity thereof is required to be considered: (i)     In the light of the decision of this Court that the Scheme  framed in Unnikrishnan has been abolished and consequent  directions issued on the basis thereof by the UGC, AICTE, MCI,  Central and State Governments etc. have been held to be  invalid. (Para 45) (ii)    While exercising the power of control, it is impermissible to  nationalize education particularly with regard to the right of  minorities to admit members of their own community as also  fixing the fee. (Para 38)  Minority institutions are not to  subsidize the State nor any principle of cross-subsidy can be  deciphered therefrom. (iii)   In the case of unaided institutions, maximum autonomy has to  be conceded as contradistinguished from the power of the State  to exercise more control over unaided institutions but even in  relation thereto, aided institutions should not be treated to  be wholly owned or controlled by the State or their  Departments.  (Paras 55, 61, 62  & 72) (iv)    Such a right of control over the aided institutions inheres  for the purpose of oversight and restraints so as to (a)     ensure proper utilization of funds (Para 143) (b)     permit the Government to have some seats to the  extent of its reservation policy (Paras 42-44). (v)     Although the aided institutions are subject to clause (2) of  Article 29 and clause (3) of Article 28 of the Constitution,  but the unaided minority institutions being not so subject  would not be bound by the restraints emanating therefrom so  long they exercise their right to admit and select students in  a transparent and non-arbitrary manner; III     ON ADMISSION OF STUDENTS BY UNAIDED INSTITUTIONS

(i)     Unaided institutions have an unbridled right on admission of  students, comprising of devising a test for selecting students of  their choice (Para 36, 40-41, 50).  Such a right emanates from  the principle that every private and public owner of an  institution has the power to admit qualified students of their  own choice (Para 42-44). (ii)    As such a right also emanates with a view to maintain the  atmosphere and traditions of the private educational  institutions, the general principles for unaided institutions  would also apply to unaided professional institutions.  The right  of option either to select their candidates from the Government  CET test or its own test is absolute and the ultimate decision in  this behalf rests with the institutions whereas aided  institutions can be compelled to follow the CET test devised by  the Government or the University. (iii)   Whereas such a test and devising a system on the part of the  unaided institutions cannot be based on fancy and whims but once  "some identifiable or reasonable methodology" usually on merit is  adopted, the right to select qualified students on a fair and  discernable basis cannot be interfered with (Para 65).

IV      ON THE NATURE AND EXTENT OF THE GOVERNMENT QUOTA FOR UNAIDED  INSTITUTIONS

(i)     It is contended that the Government cannot have a quota in this  regard as the institutions are unaided.  Having regard to the  fact that if such government quota is allowed, the same would  destroy not only the concept of unaided institutions but right to  exercise maximum autonomy especially in the matter of selection

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of students and fees would be impaired. (ii)    Such a right must be construed having regard to the extent of  control over the aided institution.   (iii)   Admission to a small percentage for weaker sections which the  unaided institutions are required to follow by way of implication  rules out enforcement of any reservation policy of the State as  the same would run counter to the decision of this Court in The  Ahmedabad St. Xavier’s College Society and Another Vs. State of  Gujarat and Another [(1974) 1 SCC 717]. (iv)    In any event, the direction to determine a small percentage of  persons drawn from the weaker sections of the society should be  left with the management, which would include the weaker sections  of the minority community for which such institution has been  established. (v)     It is for an unaided institution to volunteer to provide  scholarship or freeship to the students of weaker sections so  long they are meritorious students (Para 37, 53, 61 & 68) (vi)    Since weaker sections form a special category, they cannot be  selected either on the basis of : (a)     reservation policy of the State (b) regional affiliation or residence within the State (c) religion. (vii)   For the said purpose also, the social and educational  backwardness of the area or the regions entitling such inclusion  on the touchstone of compelling necessities of the State will  have to be taken into consideration.   (viii)  In any event, reservation for weaker sections cannot be greater  than 50% of the total in any batch after taking into account the  reservation for SC, ST and OBC.   (ix)    The unaided institutions cannot be subject to onerous financial  impositions nor can they be asked to perform the functions of the  State. (Para 61) (x)     In any event, the quota policy cannot be imposed on unaided  institutions to the extent of laying down standards of a  reasonable nature that do not cut down its operational autonomy  and financial independence. (Paras 36, 40, 43, 53, 59, 65).

V.      FEE FIXATION FOR UNAIDED INSTITUTIONS         As unaided institutions are to be given maximum autonomy in the  matter of fixation of fee, there cannot be : (a)     a rigid fee structure (para 54) (b)     Such fees are to be fixed by the unaided institutions (Para  56, 57). (c)     The only impediment in this behalf is that no capitation  fee can be charged nor the institutions can take recourse  to profiteering since education is charitable in nature.   Therefore a reasonable revenue surplus for the purpose of  development of education and expansion of education would  be permissible (Para 57).  While restricting charging the  capitation fee and profiteering, this Court had merely  directed that such institutions make no undue, excessive or  illegal profits and thereby a reasonable profit is  permitted. (d)     Only because fee is to be charged on a reasonable  development profit basis, the same would not result in  decline in standard or amount to capitation. (Para 61). (e)     Students of weaker sections when admitted may be granted  freeships and scholarships (Para 53). (f)     For the purpose of finding out as to who would be the  students belonging to the weaker sections of the community,  local needs and other needs must be taken into  consideration.

       The judgment of this Court in T.M.A. Pai Foundation (supra) is to  be construed having regard to the following principles:

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(a)     Its ratio must be found in the answers ultimately given. (b)     A judgment has to be read as a whole and in such a manner  so that all parts of a judgment dealing with a particular  point are provided with a meaning.  The regulations  imposing restrictions must be read in such a fashion so  that maximum autonomy of the unaided institutions are  preserved and respected. SUBMISSIONS MADE ON BEHALF OF STATES/CENTRAL GOVERNMENT/STATUTORY  AUTHORITIES (i)     The right of citizens including the minority communities  whether based on any religion or language contained in Article  19(1)(g) and Article 30(1) is not absolute but is subject to  reasonable restrictions. (ii)    Regulations restricting the right of minority to admission of  students are necessary for maintenance of proper academic  standards, atmosphere and infrastructure (including qualified  staff) and for prevention of mal-administration (Para 54). (iii)   Since education in a sense is regarded as charitable, unaided  institutions cannot charge a hefty fee which would not be  required for the purpose of fulfilling the object for which  the institutions are established nor by reason thereof they  can take recourse to profiteering (Para 57.) (iv)    As merit is usually determined by either the marks of the  students obtained at the qualifying examination or school  leaving certificate stage followed by the interview or by a  common entrance test conducted by the institution, the State  while framing regulation has the requisite jurisdiction to  issue necessary directions in this behalf so that merit is not  sacrificed (Para 58-59). (v)     The plea of the minority institutions to the effect that their  right to admit or reject students is absolute would not be in  consonance with the direction issued in para 68 which provides  for  (a)     a system to provide merit based selection while granting  sufficient discretion to the management (b)     As certain percentage of seats have to be reserved for  the management, the rest can be filled up on the basis  of counseling by the State agencies which would take  care of poorer and backward sections of the society.   The prescription of the percentage for the said purpose  must be left with the State (Para 68). (vi)    Professional institutions must apply a more rigorous test,  which would be subject to greater regulation by the State or  by the University.  (Answer to Question No. 4). (vii)   As the State while granting essentiality certificate is to  consider the local needs and further guarantee smooth  functioning of such institutions failing which the State has  to adjust the students of the institutions to their own  institutions, it has a great stake in the matter.  Choice and  selection of students in professional courses are directly  linked with maintaining the standards of medical education. (viii)  If a free hand is given to all the private medical, dental,  engineering and other professional colleges to hold their own  test, having regard to the time schedule framed by this Court  for holding examinations in the 15% All India quota as also  the All India test held by AIIMS, CBSE, JIPMER, AFMC etc. the  students would be deprived from appearing at the examinations  if tests are held throughout the country and they will have to  incur huge expenditure for purchasing application forms which  are priced at Rs. 500 to Rs. 1000/- as also by way of  travelling, boarding and lodging so as to enable them to  appear at various examinations.  More than one examination may  be held on the same day or in such near proximity that  traveling from one place to another would become virtually  impossible.  The methodology, thus, must be adopted so as to

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minimize the inconvenience caused to a majority of the  students so that they can appear at many examinations by  incurring a reasonable expenditure.   (ix)    It is a common knowledge that although not termed as  capitation fee a large number of unaided institutions are  selling their seats, which must not be allowed to continue,  and must be curbed with heavy hands.   (x)     In pursuit of its objective of State Policy having regard to  Articles 38, 41 & 46 which are in terms of Article 37 thereof,  which are fundamental in governance of the country it is  necessary to provide for a common examination so that the  rights of the inter se minorities and inter se weaker sections  can be taken care of in terms of para 68 of the judgment. (xi)    The directions issued by this Court to unaided professional  institutions contained in paras 67 and 68 only are to be given  effect to although the Bench referred to professional colleges  also in paras 58 and 59 of the judgment.

OVERVIEW OF THE JUDGMENT IN T.M.A. PAI FOUNDATION :         The right to establish an institution is provided for in Article  19(1)(g) of the Constitution of India.  Such a right, however, is  subject to reasonable restrictions, which may be brought about in terms  of Clause (6) thereof.   Minorities whether based on religion or language, however, have a  fundamental right to establish and administer educational institutions  of their own choice.  The right under clause (1) of Article 30 is  not  absolute;   and subject to reasonable regulations while inter alia may  be framed  having regard to the public interest and national interest  of the country.  Regulations can also be framed to prevent  maladministration as also for laying down the standard of education,  teaching, maintenance of discipline, public order, health, morality,  etc. UNNI KRISHNANAN, J.P.

       This Court in Unni Krishnan (supra) while framing the scheme  directed : (a)     that a professional college should be established and/or  administered only by a Society registered under the  Societies Registration Act, 1860, or the corresponding  Act of a State, or by a Public Trust registered under  the Trusts Act, or under the Wakfs Act, and that no  individual, firm, company or other body of individuals  would be permitted to establish and/or administer a  professional college. (b)     that 50% of the seats in every professional college  should be filled by the nominees of the Government or  University, selected on the basis of merit determined by  a common entrance examination, which will be referred to  as "free seats"; the remaining 50% seats ("payment  seats") should be filled by those candidates who pay the  fee prescribed therefor, and the allotment of students  against payment seats should be done on the basis of  inter se merit determined on the same basis as in the  case of free seats. (c)     that there should be no quota reserved for the  management or for any family, caste or community, which  may have established such a college. (d)     that it should be open to the professional college to  provide for reservation of seats for constitutionally  permissible classes with the approval of the affiliating  university. (e)     that the fee chargeable in each professional college  should be subject to such a ceiling as may be prescribed  by the appropriate authority or by a competent court. (f)     that every State government should constitute a

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committee to fix the ceiling on the fees chargeable by a  professional college or class of professional colleges,  as the case may be. This committee should, after hearing  the professional colleges, fix the fee once every three  years or at such longer intervals, as it may think  appropriate. (g)     that it would be appropriate for the University Grants  Commission to frame regulations under its Act regulating  the fees that the affiliated colleges operating on a no  grant-in-aid basis were entitled to charge. The AICTE,  the Indian Medical Council and the Central Government  were also given similar advice. The manner in which the  seats to be filled on the basis of the common entrance  test was also indicated.

       In T.M.A. Pai Foundation (supra) the Scheme framed by this Court  restricting the right of the citizen to establish private unaided  institutions including minority institutions and manage the same was  held to be   unconstitutional stating :  (1) The Scheme enforced by the  State Governments in relation to privately managed institutions would  not be a reasonable restriction within the meaning of Article 19(6) of  the Constitution of India as it resulted into revenue shortfalls making  it difficult for the educational institutions; (2)  the provision made  for free seats and payment seats amounted to subsidising education of  one segment of society at the cost of other which was unreasonable  having regard to the fact that higher education has been held not to be  a fundamental right.            All orders and directions issued by the State pursuant to or in  furtherance of the directions in Unnikrishnan are, thus, also  unconstitutional.

ST. STEPHEN’S COLLEGE :         The right of a minority educational institution to adopt its own  method of selection is subject to the restrictions contained in clause  (2) of Article 29 of the Constitution of India, if the institution is  an aided one.  It was held that allowing minority educational  institutions to select its own method of selection for admission of  students to the extent of 50% of the seats would not impinge upon the  right under Article 30 of the Constitution of India.  It was further  held that regulations can be imposed by the State for intake of  minority categories with regard to need of the minority in the area  which the institution intends to serve.           A question, however, arose therein as to whether the State could  impose regulatory measures on the institutions run by the minority  community which provides for admission by conducting interviews but not  solely on the marks obtained in the qualifying examination?  In that  case, the State had imposed restrictions on the college management  compelling it to make admission exclusively on the basis of marks  obtained in the qualifying examination.  But the management, in  addition to the marks obtained by the students, also conducted  interviews for making admission to the college.  This Court observed  that the denial of power to St. Stephen’s College to conduct interviews  to select candidates for admission would be violative of the rights of  the minority community guaranteed under Article 30(1) of the  Constitution. It was  held that, any regulatory measure imposed by the  State on the minority institutions should be beneficial to the  institution or for the betterment of those who join such institutions. In T.M.A. Pai Foundation (supra) while upholding the judgment in  St. Stephen (supra), that part of the direction whereby the right of  the minority institutions were confined to 50% of the seats was held to  be bad.         From the above decisions of this Court, it is evident that though  the right engrafted under Article 30(1) of the Constitution does not  lay down any limitations or restrictions upon the right of a minority  to administer its educational institutions, yet the right cannot be

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used absolutely and unreasonably.

QUESTIONS POSED IN T.M.A. PAI FOUNDATION :         In T.M.A. Pai Foundation (supra), the Bench framed the following  questions: 1. What is the meaning and content of the expression  "minorities" in Article 30 of the Constitution of India? 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? 3. (a) What are the indicia for treating an educational  institution as a minority education institution? Would an  institution be regarded as a minority educational  institution because it was established by a person(s)  belonging to a religious or linguistic minority or its  being administered by a person(s) belonging to a religious  or linguistic minority? (b) To what extent can professional education be treated as  a matter coming under minorities’ rights under Article 30? 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? 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? (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? (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? 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? (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-Ã -vis such  institution? 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? 8. Whether the ratio laid down by this Court in St.  Stephen’s case (St. Stephen’s College v. University of  Delhi) is correct? If no, what order? 9. Whether the decision of this Court in Unni Krishnan,  J.P. v. State of A. P. (except where it holds that primary  education is a fundamental right) and the scheme framed  thereunder require reconsideration/modification and if yes,  what? 10. Whether the non-minorities have the right to establish

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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 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?

       The Bench did not answer 4 out of 11 questions.  The Hon’ble  Chief Justice, B.N. Kirpal delivering the majority judgment considered  the questions answered by the Bench under the following headings:  

1. Is there a fundamental right to set up educational  institutions and if so, under which provision? 2. Does the judgment in Unni Krishnan case require  reconsideration? 3. In case of private unaided institutions can there be  government regulations and if so to what extent? 4. In determining the existence of a religious or  linguistic minority, in relation to Article 30, what is to  be the unit, the State or country as a whole? and 5. To what extent can the rights of aided minority  institutions to administer be regulated?

       We are not concerned with the subject under heading 1.  The core  issues in this matter revolve around headings 2, 3 and 5  aforementioned.         We are, thus, concerned in this case with Question No. 3(b), 4,  5(a), 5(b), 5(c) and 9.

       The answers to the relevant questions are in the following terms: A.3(b)  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.  A.4 Admission of students to unaided minority  educational institutions, viz., schools and  undergraduate colleges where the scope for  merit-based selection is practically nil,  cannot be regulated by the State or University  concerned, except for providing the  qualifications and minimum conditions of  eligibility in the interest of academic  standards.  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.  A minority institution does not cease to be so,  the moment grant-in-aid is received by the  institution. An aided minority educational

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institution, therefore, would be entitled to  have the right of admission of students  belonging to the minority group and at the same  time, would be required to admit a reasonable  extent of non-minority students, so that the  rights under Article 30(1) are not  substantially impaired and further the  citizens’ rights under Article 29(2) are not  infringed. What would be a reasonable extent,  would vary from the types of institution, the  courses of education for which admission is  being sought and other factors like educational  needs. The State Government concerned has to  notify the percentage of the non-minority  students to be admitted in the light of the  above observations. Observance of inter se  merit amongst the applicants belonging to the  minority group could be ensured. In the case of  aided professional institutions, it can also be  stipulated that passing of the common entrance  test held by the state agency is necessary to  seek admission. As regards non-minority  students who are eligible to seek admission for  the remaining seats, admission should normally  be on the basis of the common entrance test  held by the state agency followed by  counselling wherever it exists.  A.5(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.  A.5(b) While giving aid to professional  institutions, it would be permissible for the  authority giving aid to prescribe bye-rules or  regulations, the conditions on the basis of  which admission will be granted to different  aided colleges by virtue of merit, coupled with  the reservation policy of the state qua non- minority students. The merit may be determined  either through a common entrance test conducted  by the University or the Government concerned  followed by counselling, or on the basis of an  entrance test conducted by individual  institutions - the method to be followed is for  the university or the government to decide. The  authority may also devise other means to ensure  that admission is granted to an aided  professional institution on the basis of merit.  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.  A.5(c) So far as the statutory provisions  regulating the facets of administration are  concerned, in case of an unaided minority

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educational institution, the regulatory measure  of control should be minimal and the conditions  of recognition as well as the conditions of  affiliation to an university or board have to  be complied with, but in the matter of day-to- day management, like the appointment of staff,  teaching and non-teaching, and administrative  control over them, the management should have  the freedom and there should not be any  external controlling agency. However, a  rational procedure for the selection of  teaching staff and for taking disciplinary  action has to be evolved by the 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.  A.9 The scheme framed by this Court in Unni  Krishnan case and the direction to impose the  same, except where it holds that primary  education is a fundamental right, is  unconstitutional. However, the principle that  there should not be capitation fee or  profiteering is correct. Reasonable surplus to  meet cost of expansion and augmentation of  facilities does not, however, amount to  profiteering.                   The conflict has to be resolved keeping the aforementioned  findings in view.

CORE QUESTIONS  :        (i)     Whether unaided professional institutions are entitled to lay  down their own fee structure?   (ii)    Whether in view of the judgment of this Court in T.M.A. Pai  Foundation (supra) private and unaided professional  institutions are entitled to have their own admission  programme?   (iii)   Whether the State Governments are entitled to lay down the  quota of total seats to be filled up by the management?

RELEVANT FINDINGS OF THIS COURT IN T.M.A. PAI FOUNDATION

       The right to establish and administer educational institutions  was held to be guaranteed to citizens under Article 19(1)(g) of the  Constitution of India and to the minorities under Article 30.  

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       One of us (Chief Justice Khare) while agreeing with the majority  delivered a separate opinion relating to aided minority institutions  and non-minority institutions as also interpretation of the right of  the minorities under Clause (1) of Article 30 vis-Ã -vis clause (2) of  Article 29 and held that such right is limited by the conditions laid  down in clause (2) of Article 29 and clause (3) of Article 28.           Quadri, J. agreed with the aforementioned view stating: "259. In regard to the minorities seeking  recognition and/or aid it was observed in  Kerala Education Bill, 1957 (AIR 1958 SC 956 :  1959 SCR 995) that the minorities cannot surely  ask for aid or recognition for an educational  institution run by them in unhealthy  surroundings, without any competent teachers,  possessing any semblance of qualification, and  which does not maintain even a fair standard of  teaching or which teaches matters subversive of  the welfare of the scholars. In such matters,  "the State can insist that in order to grant  aid the State may prescribe reasonable  regulations to ensure the excellence of the  institutions to be aided", (emphasis supplied)  Thus, it is clear that regulations postulated  for granting recognition or aid ought to be  with regard to the excellence of education and  efficiency of administration viz. to make  certain healthy surroundings for the  institutions, existence of competent teachers  possessing requisite qualifications and  maintaining fair standard of teaching. Such  regulations are not restrictions on the right  but merely deal with the aspects of proper  administration of an educational institution,  to ensure excellence of education and to avert  maladministration in minority educational  institutions and will, therefore, be  permissible. This is on the principle that when  the Constitution confers a right, any  regulation framed by the State in that behalf  should be to facilitate exercise of that right  and not to frustrate it."                  Pal, J. also agreed with the said view stating:

"Similarly, the Constitution has also carved  out a further exception to Article 29(2) in the  form of Article 30(1) by recognising the rights  of special classes in the form of minorities  based on language or religion to establish and  administer educational institutions of their  choice. The right of the minorities under  Article 30(1) does not operate as  discrimination against other citizens only on  the ground of religion or language. The reason  for such classification is not only religion or  language per se but minorities based on  religion and language. Although, it is not  necessary to justify a classification made by  the Constitution, this fact of ’minorityship’  is the obvious rationale for making a  distinction, the underlying assumption being  that minorities by their very numbers are in a  politically disadvantaged situation and require  special protection at least in the field of  education.

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Articles 15(4), 337 and 30 are therefore facets  of substantive equality by making special  provision for special classes on special  considerations."

        One of us (Variava, J.) speaking for himself and Bhan, J. agreed  with the majority but thought it appropriate that a mechanism therefor  should be set up observing: "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 conditions of  affiliation to a University or Board have to be  complied with, but in the matter of day-to-day  Management, like appointment of staff, teaching  and non-teaching and administrative control  over them, the Management should have the  freedom and there should not be any external  controlling agency. However, a rational  procedure for selection of teaching staff and  for taking disciplinary action has to be  evolved by the Management itself. For  redressing the grievances of such employees who  are subjected to punishment or termination from  service, a mechanism will have to be evolved  and in our opinion, appropriate tribunals could  be constituted, and till then, such tribunal  could be presided over by a Judicial Officer of  the rank of District Judge. The State or other  controlling authorities, however, can always  prescribe the minimum qualifications, salaries,  experience and other conditions bearing on the  merit of an individual for being appointed as a  teacher of an educational institution.  Regulations can be framed governing service  conditions for teaching and other staff for  whom aid is provided by the State without  interfering with overall administrative control  of Management over the staff,  Government/University representative can be  associated with the selection committee and the  guidelines for selection can be laid down. In  regard to un-aided minority educational  institutions such regulations, which will  ensure a check over unfair practices and  general welfare, of teachers could be framed.  There could be appropriate mechanism to ensure  that no capitation fee is charged and  profiteering is not resorted to.  The extent of regulations will not be the same  for aided and un-aided institutions."

The majority held that there is an apparent conflict between the  provisions of clause (2) of Article 29 and clause (1) of Article 30.   Article 29 guarantees the right to every citizen not to be denied  admission into any educational institution maintained by the State or  receiving aid out of State funds on grounds only of religion, race,  caste, language or any of them; whereas clause (1) of Article 30  confers a fundamental right to set up educational institutions of their  choice.   

A delicate balance was sought to be struck by stipulating that

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minority educational institutions may admit non-minority students to a  "reasonable extent" so that the rights of both minorities and non- minorities are protected.  However, the extent to which such balance is  to be struck may be determined by the State having regard to such  factors as ’the type of institution’, ’course of education’,  ’population and educational needs of minorities’.  It was further laid  down that the minority institutions are required to admit students  having regard to inter-se merit amongst the applicants.  Non-minorities  students, who qualify the test, would be entitled to seek admission  against the "allotted seats" as per their own respective cumulative  merit.

       However, one of us Variava, J., speaking for himself and Bhan, J.  clearly held that where the minority institutions take aid from the  State they do not have any right to admit students of minority  community alone.  For arriving at the said conclusion, the learned  Judge referred to the history of the said provision and the intention  of the founding fathers, which was the conferment of a right of  minorities to establish "a secular state wherein people belonging to  the different religions should all have a feeling of equality and non- discrimination".   

The learned Judge further referred to the significance of  conditional clause, ’at their own expense’ in the draft article VI  which reads as follows :                  "Citizens belonging to national minorities in a state  whether based on religion or language have equal  rights with other citizens in forming, controlling  and administering at their own expense, charitable,  religious and social institutions, schools and other  educational establishments with the free use of their  language and practice of their religion.

No legislation providing state-aid for schools  shall discriminate against schools under the  management of minorities whether based on religion or  language."

The learned Judge further observed that by reason of Article  30(1) no ’special’ or ’additional’ right is conferred on the  minorities.

       Expression ’minorities’ although is not defined in the  Constitution, one of us Khare, CJI, referred to the Year Book on Human  Rights (1950) and Encyclopaedia Britannica and some other standard  works on the theme of protection of minorities.         Though in para 153 the view regarding merit was expressed, but  while answering the question No. 7 was left open to be answered by the  appropriate Benches. The majority opined that the minority status of a group of  persons would be determined on the basis of population of the State or  Union Territory concerned and not on the whole of the country.  It was  further held that education within the meaning of the provision of  Article 30 would mean and include education from primary level to the  post-graduate level and would include professional education as well.

       The Bench, however, overruled the dicta in Unni Krishnan’s case  (supra) that education is not a ’business’ or ’occupation’ within the  meaning of Article 19(1)(g) of the Constitution of India, wherein  referring to State of Bombay Vs. R.M.D. Chamarbaugwala [1957 SCR 874]  and incorporating the doctrine of res extra commercium, the Court had  observed :

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       "While the conclusion that ’occupation’  comprehends the establishment of educational  institutions is correct, the proviso in the aforesaid  observation to the effect that this is so provided no  recognition is sought from the state or affiliation  from the concerned university is, with the utmost  respect, erroneous.  The fundamental right to  establish an educational institution cannot be  confused with the right to ask for recognition or  affiliation."                  

       While declaring that the Scheme framed in Unni Krishnan’s case  (supra) and the directions issued to the Government, UGC and other  concerned bodies to give effect to the same vis-Ã -vis privately managed  educational institutions as unconstitutional, it upheld two  propositions : (1) primary education is a fundamental right; and  (2)  the institution cannot charge any capitation fee or otherwise take  recourse to profiteering.         It was observed :

"The scheme framed by this Court in Unni Krishnan’s  case  and the direction to impose the same, except  where it holds that primary education is a  fundamental right, is unconstitutional. However, the  principle that there should not be capitation fee or  profiteering is correct. Reasonable surplus to meet  cost of expansion and augmentation of facilities does  not, however, amount to profiteering."

       The Bench agreed with the contention of the private institutions  that affiliation and recognition has to be made available to every  institution that fulfils the conditions for grant thereof observing :         "The private institutions are right in  submitting that it is not open to the Court to insist  that statutory authorities should impose the terms of  the scheme as a condition for grant of affiliation or  recognition; this completely destroys the  institutional autonomy and the very objective of the  institution."

The Court, however, laid emphasis that in professional education  merit should be the criteria.         With a view to appreciate the extent to which the Scheme  formulated in Unni Krishnan was not found favour with T.M.A. Pai  Foundation (supra), we may set out the observations of this Court in  T.M.A. Pai Foundation (supra) as follows: 1.  Establishment of Educational Institutions    All citizens have a right to establish and administer educational  institutions under Articles 19(1)(g) and 26, but this right is subject  to provisions of Articles 19(6) and 26-A. (See Answer to Question Nos.  10 & 11). 2. Admission to Courses (i)     Private Unaided Professional Colleges: (a)     Admission to professional colleges should be based on merit  by common entrance test conducted by the Government  agencies (See Paragraph 59) (b)     Certain percentage of seats can be reserved for admission  by management out of those students who have passed common  entrance test held by itself or by the State agency and the  rest of the seats may be filled up on the basis of  counselling by the State agency.  Prescription by  percentage has to be determined by the Government according  to local needs (See Paragraph 68) (c)     When one considers the Constitution Bench’s earlier  statements that higher education is not a fundamental

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right, it seems unreasonable to compel a citizen to pay for  the education of another more so in the unrealistic world  of competitive examinations which assess the merit for the  purpose of admission solely on the basis of marks obtained  where urban students always have an edge over rural  students. Those who seek professional education must pay  for it. (See Paragraphs 37 & 70). 2(ii)   Private aided professional institutions:         It would be permissible for the authority giving aid to prescribe  by Rules or Regulations the conditions on the basis of which the  admissions shall be granted to different aided colleges by virtue of  merit coupled with reservation policy of the State.  The merit may be  determined either through the common entrance test conducted by the  University or the Government followed by counselling or on the basis of  entrance test conducted by individual institution, and method to be  followed is for the Government or University to decide. 2. (iii)        Private aided minority institutions:         The State Government is not entitled to interfere with the right  of minority educational institutions to admit students of their choice  so long as the admission is on a transparent basis and the merit is  adequately taken care of.  The right not being absolute, there could be  regulatory measures for ensuring educational standards and maintaining  excellency thereof, specially in the case of admission to professional  institutions. (See Page 588, Q. 4). 2(iv.)  Unaided minority institutions:         Such institutions would have the right of admission of students  belonging to minority groups and at the same time would be required to  admit reasonable extent of non-minority students as notified by the  State Government.  In case of professional institutions it can also be  stipulated that passing of common entrance test held by the State  agency is necessary to seek admission. (Page 588, Qs. 4, 5(a) and 5(b)) 3. Reservation of Seats         ..While the State has a right to prescribe qualifications  necessary for admission, private unaided colleges have right to admit  students of their choice subject to objective and rational procedure of  selection and the compliance with the conditions if any requiring  admission of certain percentage of students belonging to weaker  sections by granting them free scholarships or scholarships if not  granted by the Government (paragraph 53).  4.      Fee Structure (i)     ..Scheme of "free" and "Payment" seats was evolved on the  presumption that the economic capacity of the 50 per cent of admitted  students would be greater than the remaining 50%, whereas the converse  has proved to be the reality.  In this scheme, the "Payment" seat  student would not only pay for his own seat, but also finance the cost  of a "free seat" classmate.  It seems unreasonable to compel a citizen  to pay for the education of another, more so in the unrealistic world  of competitive examinations which assess the merit for the purpose of  admission solely on the basis of marks obtained where urban students  always have an edge over rural students.  In practice, it has been the  case of the marginally less merited rural or poor students bearing the  burden of a rich and well exposed and urban students. (See Paragraph  37). (ii)    The decision in Unni Krishnan insofar as it framed the Scheme  relating to grant of admission and fixing fee was not correct, and to  that extent the said decision and consequent direction given to UGC,  AICTE, Medical Council of India, Central and State Governments etc., is  overruled. (Paragraph 45). (iii)   A rational fee structure should be adopted by the management and  it would not be entitled to charge capitation fee and appropriate  machinery can be devised by the State or University to ensure that no  capitation fee is charged and that there is no profiteering, though a  reasonable surplus in furtherance of education is permissible.  The  conditions of granting recognition or affiliation can broadly cover  academic and educational matters including the welfare of students and

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teachers (Paragraph 69, Q.9).         The problem presented in these matters should be viewed from the  aforementioned perspective.         There is a fundamental right to set up educational institutions  both under Article 19(1)(g) and Article 30 of the Constitution of  India.  It held that the Scheme framed by this Court in Unni Krishnan  did not impose reasonable restrictions within the meaning of Clause (6)  of Article 19 of the Constitution of India.  The unaided institutions  compared to the aided institutions will have more autonomy to run the  institutions.  However, in the matter of non-professional institutions,  the autonomy is absolute which is not the case in professional  institutions.

       The right to establish and administer an institution comprises of  the right: (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 employees.  

       As regards fee structure, it was held that the fixing of a rigid  fee structure, dictating the formation and composition of a governing  body, compulsory nomination of teachers and staff for appointment or  nominating students for admissions would be unacceptable restrictions.   Although an educational institution is not a business, in order to  examine the degree of independence that can be given to a recognized  educational institution, like any private entity that does not seek aid  or assistance from the Government, and that exists by virtue of the  funds generated by it, including its loans or borrowings.  It is  important to note that the essential ingredients of the management of  the private institution include the admission of students and  recruiting staff, and the quantum of fee that is to be charged.          An educational institution is established for the purpose of  imparting education of the type made available by the institution.  Different courses of studies are usually taught by teachers who have to  be recruited as per qualifications that may be prescribed. It is no  secret that better working conditions will attract better teachers.  More amenities will ensure that better students seek admission to that  institution. One cannot lose sight of the fact that providing good  amenities to the students in the form of competent teaching faculty and  other infrastructure costs money. It has, therefore, to be left to the  institution, if it chooses not to seek any aid from the government, to  determine the scale of fee that it can charge from the students. One  also cannot lose sight of the fact that we live in a competitive world  today, where professional education is in demand. We have been given to  understand that a large number of professional and other institutions  have been started by private parties who do not seek any governmental  aid. In a sense, a prospective student has various options open to  him/her where, therefore, normally economic forces have a role to play.  The decision on the fee to be charged must necessarily be left to the  private educational institution that does not seek or is not dependent  upon any funds from the Government.  

       Since the object of setting up of an educational institution is  charitable in nature, capitation fee and profiteering cannot be allowed  to be indulged in: (a)     although the institutions may generate a reasonable revenue  surplus for the purpose of development of education and  expansion of the institutions. (b)     For admission in a professional institutions, merit must play  an important role and meritorious candidates should not be  treated unfairly or put at a disadvantage by preferences shown  to less meritorious but more influential applicants.

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       Excellence in professional education would require that greater  emphasis be laid on the merit of a student seeking admission for which  appropriate regulations can be made.         As regards determination of merit, it was stated: "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."

       Educational institutions, however, cannot grant admission on  their whims and fancies and must follow some identifiable or reasonable  methodology of admitting the students.  Any scheme, rule or regulation  that does not give an institution the right to reject candidates who  might otherwise be qualified according to, say, their performance in an  entrance test, would be an unreasonable restriction under Article  19(6), though appropriate guidelines/modalities can be prescribed for  holding the entrance test in a fair manner. Even when students are  required to be selected on the basis of merit, the ultimate decision to  grant admission to the students who have otherwise qualified for the  grant of admission must be left with the educational institution  concerned. However, when the institution rejects some students, such  rejection must not be whimsical or for extraneous reasons.

       The principles governing private unaided professional colleges  were dealt with separately in paragraphs 67, 68 and 69; the relevant  portions whereof read thus: "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 forgo or discard the principle of merit. It  would, therefore, be permissible for the  university or the government, at the time of  granting recognition, to require a private  unaided institution to provide for merit-based  selection while, at the same time, giving the  Management sufficient discretion in admitting  students. This can be done through various  methods. For instance, a certain percentage of  the seats can be reserved for admission by the  Management out of those students who have  passed the common entrance test held by itself  or by the State/University and have applied to  the college concerned for admission, while the  rest of the seats may be filled up on the basis  of counselling by the state agency. This will  incidentally take care of poorer and backward  sections of the society. The prescription of  percentage for this purpose has to be done by  the government according to the local needs and  different percentages can be fixed for minority  unaided and non-minority unaided and  professional colleges. The same principles may  be applied to other non-professional but  unaided educational institutions viz.,  graduation and post graduation non-professional  colleges or institutes.  In such professional unaided institutions, the  Management will have the right to select

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teachers as per the qualifications and  eligibility conditions laid down by the  State/University subject to adoption of a  rational procedure of selection. A rational fee  structure should be adopted by the Management,  which would not be entitled to charge a  capitation fee. Appropriate machinery can be  devised by the state or university to ensure  that no capitation fee is charged and that  there is no profiteering, though a reasonable  surplus for the furtherance of education is  permissible. Conditions granting recognition or  affiliation can broadly cover academic and  educational matters including the welfare of  students and teachers.  

STATUTES OPERATING IN THE FIELD:         The Parliament in exercise of its power conferred upon it under  Entry 66 List I of the Seventh Schedule of the Constitution of India  enacted the Medical Council of India Act, University Grants Commission  Act and All India Council for Technical Education Act.  Regulations  have also been framed pursuant to or in furtherance of the regulation  making power contained therein.  Section 10(1)(i) of the AICTE Act  reads as under :-

"10. Functions of the Council. -  (1) It shall be the duty of the Council to take all  such steps as it may think fit for ensuring co- ordinated and integrated development of technical and  management education and maintenance of standards and  for the purposes of performing its functions under  this Act, the Council may-- (a) undertake survey in the various fields of  technical education, collect data on all  related matters and make forecast of the needed  growth and development in technical education; (b) co-ordinate the development of technical  education in the country at all levels; (c) allocate and disburse out of the Fund of  the Council such grants on such terms and  conditions as it may think fit to - (i) technical institutions"

Section 12A of UGC Act is as follows :

"12A. Regulation of fees and prohibition of donations  in certain cases.- (1) In this section, -

(a)      "affiliation", together with its grammatical   variations, includes in relation to a college,  recognition of such college by, association of  such college with, and admission of such college  to the privileges of, a University;

(b)      "college" means any institution, whether known  as such or by any other name which provides for a  course of study for obtaining any qualification  from a university and which, in accordance with  the rules and regulations of such University, is  recognized as competent to provide for such course  of study and present students undergoing such  course of study for the examination for the award  of such qualification;

(c)      "prosecution", in relation to a course of

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study, includes promotion from one part or stage  of the course of study to another part or stage of  the course of study;

(d)      "qualification" means a degree or any other  qualification  awarded by a University;

(e)      "regulations" means regulations made under this Act;

(f)     "specified course of study" means a course of  study in respect of which regulations of the  nature mentioned in sub-section (2) have been  made;

(g)      "student" includes a person seeking admission  as a student;

(h)      "university" means a university or institution  referred to in sub-section (1) of section 22.

(2) Without prejudice to the generality of the  provisions of section 12 if, having regard to -

(a)     the nature of any course of study for obtaining  any qualification from any University;

(b)     the types of activities in which persons  obtaining such qualification are likely to be  engaged on the basis of such qualification;

(c)     the minimum standards which a person possessing  such qualification should be able to maintain  in his work relating to such activities and the  consequent need for ensuring, so far as may be,  that no candidate secures admission to such  course of study by reason of economic power and  thereby prevents a more meritorious candidate  from securing admission to such course of  study; and

(d)     all other relevant factors,

the Commission is satisfied that it is necessary so  to do in the public interest, it may, after  consultation with the university or universities  concerned, specify by regulations the matters in  respect of which fees may be charged, and the scale  of fees in accordance with which fees shall be  charged in respect of those matters on and from such  date as may be specified in the regulations in this  behalf, by any college providing for such course of  study from, or in relation to, any student in  connection with his admission to, and prosecution of,  such course of study :

Provided that different matters and different  scales of fees may be so specified in relation to  different universities or different classes of  colleges or different areas.

(3) Where regulations of the nature referred to  in sub-section (2) have been made in relation to any  course of study, no college providing for such course  of study shall -

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(a)     levy or charge fee in respect of any matter  other than a matter specified in such  regulations;

(b)     levy or charge any fees in excess of the  scale of fees specified in such regulations,  or

(c)     accept, either directly or indirectly, any  payment (otherwise than by way of fees) or  any donation or gift (whether in cash or  kind),

from, or in relation to, any student in connection  with his admission to, and prosecution of, such  course of study.

(4) If, after making, in relation to a college  providing for a specified course of study, an inquiry  in the manner provided by regulations, and after  giving such college a reasonable opportunity of being  heard, the Commission is satisfied that such college  has contravened the provisions of sub-section (3),  the Commission may, with the previous approval of the  Central Government, pass an order prohibiting such  college from presenting any students then undergoing  such course of study therein to any university for  the award of the qualification concerned.

       (5) The Commission shall forward a copy of the  order made by it under sub-section (4) to the  university concerned, and on and from the date of  receipt by the University of a copy of such order,  the affiliation of such college to such university  shall, in so far as it relates to the course of study  specified in such order, stand terminated and on and  from the date of termination of such affiliation and  for a period of three years thereafter affiliation  shall not be granted to such college in relation to  such or similar course of study by that or any other  university.              (6) On the termination of the affiliation of  any college under sub-section (5), the Commission shall  take all such steps as it may consider appropriate for  safeguarding the interests of the students concerned.                   (7) The provisions of this section and the  regulations made for the purposes of this section shall  have effect notwithstanding anything inconsistent  therewith contained in any other law for the time being  in force."

Detailed regulations have been framed under the aforementioned  three Acts regulating admission of students, percentage of the minority  students to be admitted into non-minority institutions, determination  of fee and matters incidental thereto and ancillary therewith.  By  reason of the said regulations, the State Government, however, have  been delegated with the power to determine the fee structure in respect  of professional institutions wherefor requisite guidelines have been  issued;  pursuant whereto and in furtherance whereof committees have  been constituted for the said purpose.

The States of Tamil Nadu, Maharashtra, Karnataka and Andhra  Pradesh enacted statutes prohibiting collection of capitation fee and  regulating admission in professional colleges.  In terms of the  provisions of the said Acts, the management of the professional

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colleges is prohibited from charging any fee other than fee determined  under the said Acts.  The right of the minorities under Article 30 of  the Constitution, however, stands protected thereby.  The respective  State Governments enforced the said statutes in respect of self- financing private institutions, minorities or otherwise.  They further  issued various Government orders in exercise of their powers under  Article 162 of the Constitution of India after the judgment in T.M.A.  Pai Foundation.  The University Grants Commission, the A.I.C.T.E. and  the Medical Council of India, issued provisional/ad hoc guidelines  covering the same subject purported to be in terms of the provisions of  the principal statutes governing the field in the light of the judgment  of this Court in T.M.A. Pai Foundation.  The State Governments also in  terms of the observations made by this Court issued various orders or  adopted resolutions providing for enforcement of their reservation  policy as also determining the fee structure.  

Constitutionality of such Government orders came to be  challenged, inter alia, by way of writ petition before the High Courts  of Andhra Pradesh, Karnataka and Kerala.  Certain interim orders had  been passed therein which are under challenge in several special leave  petitions.   As noticed hereinbefore, in T.M.A. Pai Foundation’s case (supra)  only orders and directions issued pursuant to Unni Krishnan have been  declared unconstitutional. However, the question with regard to constitutionality or  otherwise of the said statutes, Rules and Regulations had not been  examined.  In particular the parliamentary acts and the regulations  framed thereunder have not been referred to.  The question as to  whether the field with regard to the higher education is covered by the  parliamentary legislations or not was not adverted to.  The extent and  scope of the legislative competence of the Parliament and the State  Legislatures within the meaning of Entry 66 of List I and Entry 25 of  List III of the Seventh Schedule of the Constitution also had not been  adverted to.  In the aforementioned premise, one of us, Variava, J.  stated :

"393. The learned Chief Justice has repeatedly  emphasised that capitation fees cannot be  charged and that there must be no profiteering.  We clarify that the authorities concerned will  always be entitled to prevent by enactment or  by regulations the charging of exorbitant fees  or capitation fees. There are many such  enactments already in force. We have not gone  into the validity or otherwise of any such  enactment. No arguments regarding the validity  of any such enactment have been submitted  before us. Thus those enactments will not be  deemed to have been set aside by this judgment.  Of course now by virtue of this judgment the  fee structure fixed under any regulation or  enactment will have to be reworked so as to  enable educational institutions not only to  break even but also to generate some surplus  for future development/expansion and to provide  for free seats."

Although the parties have raised their contentions as regards  constitutionality of some of the provisions of the aforementioned  statutes, keeping in view the limited scope for which this Constitution  Bench has been constituted, we refrain ourselves from going thereinto.   This exercise has to be undertaken in appropriate cases.

ARE THE RIGHTS UNDER ARTICLE 19(1)(g) AND ARTICLE 30(1) OF THE  CONSTITUTION OF INDIA EQUAL ? :

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       T.M.A. Pai Foundation (supra) for the first time brought into  existence the concept of education as an ’occupation’.  In no uncertain  terms, it was held that all citizens of India irrespective of the fact  as to whether they belong to a minority group or not have a right to  establish and run an institution.  A right conferred on a citizen of  India in terms of Article 19(1)(g) of the Constitution of India  indisputably is subject to reasonable restrictions, which may be  imposed in public interest under clause (6) thereof.  The makers of the  Constitution no doubt while enacting Article 30 of the Constitution of  India intended to confer on the minorities the same right as that of  the majority.  But, does it mean that for all intent and purport no  further or additional right exists in the minority community is the  question.

       Drawing our attention to paragraphs 54, 65, 138, 139, 224-229 of  the judgment, Mr. Venugopal and Mr. Vaidyanathan,  the learned senior  counsel for the respondents would submit that the minority right is  equal to that of the majority and not vice-versa.  According to learned  counsel, if it is to be held that the minority exercises a higher right  than the majority, the same would be counter productive to the Indian  ethos.  Right to admit students of their own choice, the learned  counsel would contend, in a professional college, therefore, is not  absolute.   

On the other hand, the learned counsel appearing on behalf of the  Writ Petitioners-Applicant would contend that the discussions in T.M.A.  Pai Foundation centered round the question as to whether the right  conferred upon minorities under Article 30 was subject to clause (2) of  Article 29 or not.  Our attention was drawn to paragraphs 31 to 45 of  the judgment and in particular para 31, 45 and 459 of the judgment.   The learned counsel would submit that while considering the question as  to whether the Scheme framed by this Court in Unni Krishnan was  reasonable, it was categorically held that the provisions contained  therein to the extent that 50% seats would be free seats and 50%  thereof would be payment seats and all examinations would be conducted  through Common Entrance Test (CET) and the ceiling on fees was declared  unconstitutional as being violative of clause (6) of Article 19 of the  Constitution of India.  It was submitted that in the event if it be  held that the said provisions are ultra vires for the purpose of clause  (6) of the Article 19 the same consequences must ensue for construction  of Article 30 of Constitution of India.  It was contended that having  regard to the majority decision of this Court, if it is held, having  regard to clause (2) of Article 29 of the Constitution that in the  event an aid is granted to a professional institution, they will be  subject to the same restrictions which any other self-financed scheme  institution would face in terms of clause (6) of Article 19 of the  Constitution of India then no purpose can be held to have been achieved  by the Constitution makers in enacting clause (1) of Article 30 of the  Constitution of India.   A citizen of India whether belonging to a minority community or  not will have the right under Article 19.  A person belonging to a  minority community apart from 19(1)(g) has a right to establish,  administer institution of their choice.  In T.M.A. Pai Foundation this  Court held that minority institutions can establish and run a  professional institution in terms of clause (1) of Article 30 of the  Constitution having regard to the fact that they have a right to  establish an institution of their own choice.  

A citizen of India with a view to establish an unaided  professional institution exercises his right of occupation.  To the  said extent admittedly the right of the minority and non-minority is  equal.  Article 30, however, seeks further to protect the minorities so  that they may admit students in the institution established by them.   This privilege is not extended to the non-minority community.  They  also have a right to establish an institution and admit students of

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their own choice in terms of Para 68 of the judgment in T.M.A. Pai but  they do not have any right of admitting students belonging to a  particular locality or speaking a particular language as such  institutions are not meant to serve the said purpose.  But the same for  all intent and purport having regard to the question involved in the  matter may not be of much consequence as would appear from the  discussions made hereinafter.

       The Bench held: "36. The private unaided educational  institutions impart education, and that cannot  be the reason to take away their choice in  matters, inter alia, of selection of students  and fixation of fees. Affiliation and  recognition has to be available to every  institution that fulfills the conditions for  grant of such affiliation and recognition. The  private institutions are right in submitting  that it is not open to the Court to insist that  statutory authorities should impose the terms  of the scheme as a condition for grant of  affiliation or recognition; this completely  destroys the institutional autonomy and the  very objective of establishment of the  institution.     

       The Scheme framed in Unni Krishnan was held to be  unconstitutional by this Court and only in that context it was  observed:

"38. The scheme in Unni Krishnan’s case has the  effect of nationalizing education in respect of  important features, viz., the right of a  private unaided institution to give admission  and to fix the fee. By framing this scheme,  which has led to the State Governments  legislating in conformity with the scheme the  private institutions are indistinguishable from  the government institutions; curtailing all the  essential features of the right of  administration of a private unaided educational  institution can neither be called fair nor  reasonable. Even in the decision in Unni  Krishnan’s case, it has been observed by Jeevan  Reddy, J., at page 749, para 194, as follows: "The hard reality that emerges is that  private educational institutions are a  necessity in the present day context. It  is not possible to do without them  because the Governments are in no  position to meet the demand -  particularly in the sector of medical and  technical education which call for  substantial outlays. While education is  one of the most important functions of  the Indian State it has no monopoly  therein. Private educational institutions  - including minority educational  institutions - too have a role to play."                  However, it was also noticed : "138. As we look at it, Article 30(1) is a sort  of guarantee or assurance to the linguistic and  religious minority institutions of their right  to establish and administer educational

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institutions of their choice. Secularism and  equality being two of the basic features of the  Constitution, Article 30(1) ensures protection  to the linguistic and religious minorities,  thereby preserving the secularism of the  country. Furthermore, the principles of  equality must necessarily apply to the  enjoyment of such rights. No law can be framed  that will discriminate against such minorities  with regard to the establishment and  administration of educational institutions vis- a-vis other educational institutions. Any law  or rule or regulation that would put the  educational institutions run by the minorities  at a disadvantage when compared to the  institutions run by the others will have to be  struck down. At the same time, there also  cannot be any reverse discrimination. It was  observed in St. Xavier’s College case(1975) 1  SCR 173, at page 192, that  "the whole object of conferring the right on  minorities under Article 30 is to ensure that  there will be equality between the majority and  the minority. If the minorities do not have  such special protection, they will be dented  equality."  In other words, the essence of Article 30(1) is  to ensure equal treatment between the majority  and the minority institutions. No one type or  category of institution should be disfavoured  or, for that matter, receive more favourable  treatment than another. Laws of the land,  including rules and regulations, must apply  equally to the majority institutions as well as  to the minority institutions. The minority  institutions must be allowed to do what the  non-minority institutions are permitted to do. 139. Like any other private unaided  institutions, similar unaided educational  institutions administered by linguistic or  religious minorities are assured maximum  autonomy in relation thereto; e.g., method of  recruitment of teachers, charging of fees and  admission of students. They will have to comply  with the conditions of recognition, which  cannot be such as to whittle down the right  under Article 30."

       The findings of this Court in the aforementioned paragraphs must  be given their full effect.  Although the width and scope of Article  19(1)(g) and Article 30 are different, but they seek to fulfill the  same purpose.  A minority institution has no additional rights but it  enjoys a constitutional protection to admit students belonging to the  minority communities whether based on religion or language.  All  regulations in this behalf must satisfy the requirement of Article 30.   The doctrine of equality shall further apply once the institutions have  been established.          We may notice that this Court in Ahmedabad St. Xavier’s College  (supra)stated: "In order to attain that object, two things  were regarded as particularly necessary and  have formed the subject of provisions in these  treaties.  The first is to ensure that nationals belonging  to racial, religious or linguistic minorities

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shall be placed in every respect on a footing  of perfect equality with the other nationals of  the State. The second is to ensure for the  minority elements suitable means for the  preservation of their racial peculiarities,  their traditions and their national  characteristics.  These two requirements are indeed closely  interlocked, for there would be no true  equality between a majority and a minority if  the latter were deprived of its own  institutions and were consequently compelled to  renounce that which constitutes the very  essence of its being a minority"."

       The purport and object for which Article 30(1) was inserted in  the Constitution cannot be lost sight of.  Judgments of Khare, J. (as  the CJI then was) and Variava, J. are replete with the debates in the  constituent assembly.          The argument that the management of the minority institutions  cannot be taken over, whereas that of the non-minority institutions can  be, is misplaced and in any event irrelevant.  This Court in no  unmistakable terms held that the State cannot take any step by way of  imposing conditions at the time of grant of recognition which would  amount to nationalization of education.  This applies to both  minorities and non-minorities.

       The Constitution prohibits acquisition of property of any citizen  of India except in accordance with law.  Any action taken on the part  of the State to take over the property of minority institution must  also receive legal sanction through an act of a legislation and not  otherwise.         It will not be a correct proposition of law, on the face of  Clause 1A of Article 30 of the Constitution to contend that the  properties of the minority institutions cannot be taken over at all.   The only right which they have is to get reasonable compensation so as  to enable them to establish another educational institution at some  other place.  It is not necessary to raise hypothetical question to  drive home a point which is of not much consequence.  As and when laws  are made, their constitutionality will have to be tested on their own  merit. Preemptive answers should not be given on hypothetical  questions.           Furthermore, in the event, running of a minority institution is  found to be against national interest or permissible limits of  regulations, it can be taken over with a view to maintain morality,  public order, health, national interest.  Similar such considerations  would empower the State to close the institution or take over the  management thereof, although the same may be done only in extreme  cases.         In case of gross mismanagement and violation of the conditions of  essentiality certificate also, the State may be held to have the power  to close down the institution.         The right of the minority institution to admit their own  students, in other words, is only by way of protection of the minority  interest so that they may get the benefit of the equality clause. Such  a protection should not be confused to be a right. This is evident not  only from paras 138 and 139 of the judgment but also from para 371,  (opinion of Ruma Pal, J.)         The statement of law contained in paras 138 and 139 is absolutely  clear and unambiguous and no exception can be taken thereto.  The  doubt, if any, that the minorities have a higher right in terms of  Article 30(1) of the Constitution of India may be dispelled in clearest  terms inasmuch as the right of the minorities and non-minorities is  equal.  Only certain additional protection has been conferred under  Article 30(1) of the Constitution of India to bring the minorities on

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the same platform as that of non-minorities as regards the right to  establish and administer an educational institution for the purpose of  imparting education to the members of their own community whether based  on religion or language.         Demographically every Indian can become a minority having regard  to the fact that even Hindus are in minority in Jammu & Kashmir, Punjab  and some other States in North-East of India.  Even Hindi speaking  people except northern India are in minority in other parts of the  country.         The question, thus, has to be considered keeping in view the fact  that every Indian may be a minority, either based on religion or  language, in one part of the country or the other.  The right of a  citizen as a minority in one part of the country cannot be higher than  his right as a member of majority in another part of the country.         Furthermore, one of us (Variava, J.) speaking for himself and  Bhan, J. clearly said : "Article 30 merely protects the right of the minority  to establish and administer an educational  institution, i.e. to have the same rights as those  enjoyed by majority, Article 30 gives no right to  receive State aid.  It is for the institution to  decide whether it wants to receive aid.  If it  decides to take State aid then Article 30(2) merely  provides that the State will not discriminate against  it.  When State, whilst giving aid, asks the minority  educational institute to comply with a constitutional   mandate, it can hardly be said that the State is  discriminating against that institute.  The State is  bound to ensure that all educational institutes,  whether majority or minority, comply with the  constitutional mandate."                                                 (Emphasis supplied)

       The right of the minorities in the matter of admission of  students can also be restricted like the non-minorities.  T.M.A. Pai  says so.         The professional institutions indisputably are  governed by  statutes like MCI Act, AICTE Act and the UGC Act.  In terms the  provisions of the statutes  and regulations framed thereunder the  private professional institutions are required to maintain certain  standards.  They cannot be deviated or departed from.   In the context  of giving admissions to the meritorious students, it cannot be said  that the students belonging to the minority community shall be admitted  without reference to merit.

       The courts, it is relevant to place on record, would not  encourage establishment of pseudo minority institutions imparting  professional courses.  The statutory rules and regulations, thus, must  be equally applied to all the professional institutions whether aided  or unaided whether run by a minority or non-minority.  In the matter of  maintenance of standard, these institutions must be equally treated.         If it be held that the minority institutions can admit all the  students belonging to their own community whereas the non-minority  institutions cannot, the same, in my opinion, would amount to re- writing the judgment.         The arguments which have been advanced in this behalf, if  accepted,  would clearly lead to the conclusion that the majority  decision in TMA Pai Foundation is wrong. Even while laying down the law in terms of Articles 15(3), 15(4),  16(1) and 16(4), the object is to attain equality.  Reverse  discrimination even in the majority judgment has been frowned upon.   Can we say that the right of the minorities is higher than the other  disadvantaged group? Possibly not having regard to Part III of the  Constitution.    It is interesting to note that recently in Jennifer Gratz and

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Patrick Hamacher Vs. Lee Bollinger decided on 23rd June, 2003 by US  Supreme Court the guidelines providing for selection method under which  every applicant from an underrepresented racial or ethnic minority  groups was to be automatically awarded 20 points out of 100 points  needed to guarantee admission, was struck down as being violative of  equality protection clause.  It was observed: "The very nature of a college’s permissible  practice of awarding value to racial diversity  means that race must be considered in a way  that increases some applicants’ chances for  admission.  Since college admission is not left  entirely to inarticulate intuition, it is hard  to see what is inappropriate in assigning some  stated value to a relevant characteristic,  whether it be reasoning ability, writing style,  running speed, or minority race.  Justice  Powell’s plus factors necessarily are assigned  some values.  The college simply does by a  numbered scale what the law school accomplishes  in its "holistic review," Grutter, post, at 25;  the distinction does not imply that applicants  to the undergraduate college are denied  individualized consideration or a fair chance  to compete on the basis of all the various  merits their applications may disclose."

       Justice Ginsburg, however, speaking for himself and Justice  Souter in their minority opinion stated: "Our jurisprudence ranks race a "suspect"  category, "not because (race) is inevitably an  impermissible classification, but because it is  one which usually, to our national shame, has  been drawn for the purpose of maintaining  racial inequality."  Norwalk Core Vs. Norwalk  Redevelopment Agency, 395 F. 2d 920, 931-932  (CA2 1968) (footnote omitted).  But where race  is considered "for the purpose of achieving  equality," id., at 932, no automatic  proscription is in order.  For as insightfully  explained, "the Constitution is both color  blind and color conscious.  To avoid conflict  with the equal protection clause, a  classification that denies a benefit, causes  harm, or imposes a burden must not be based on  race.  In that sense, the Constitution is color  blind.  But the Constitution is color conscious  to prevent discrimination being perpetuated and  to undo the effects of past discrimination.   "United States Vs. Jefferson County Bd. Of Ed.,  372 F.2d 836, 876 (CA5 1966)(Wisdom,J.): see  Wechsler, The Nationalization of Civil  Liberties and Civil Rights Supp. To 12  Tex.Q.10,23(1968) (Brown may be seen as  disallowing racial classifications that "imply  an invidious assessment" while allowing such  classifications when "not invidious in  implication" but advanced to "correct  inequalities").  Contemporary human rights  documents draw just this line; they distinguish  between policies of oppression and measures  designed to accelerate de facto equality.  See  Grutter, post, at 1 (Ginsburg, J.  concurring)(citing the United Nations -  initiated Conventions on the Elimination of All  Forms of Racial Discrimination and on the

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Elimination of All Forms of Discrimination  against Women)."

It is not necessary to express any opinion on this judgment one  way or the other but it is referred to as the same points out two  different viewpoints.  But one thing is clear; ultimate constitutional  goal is to attain equality. Human history would show that struggle of man for democratic  polity was inspired by a desire to achieve equality among them.   Indeed, some of the world Constitutions in their preamble abhor  inequality and proclaim to achieve equality in all respects.  Whatever  may be the power and jurisdiction of the State and State authorities to  make a special provision in favour of backward and downtrodden, when  the Court tests the reasonableness of such distinctive State action, it  should be done by posing a question whether such State action to  ameliorate social, economic and political poverty; whatever be the  reason, delays the journey towards proclaimed goal of equality.  If a  measure tends to perpetuate inequality and makes the goal of equality a  mirage, such measure should not receive the approval of the Court.  The  Court, in such circumstances, has no mould the relief by indicating  what would be the reasonable measure or action which furthers the  object of achie4ving equality.  The concept of equality is not a  doctrinaire approach.  It is a binding thread which runs through the  entire constitutional text.  An affirmative action may, therefore, be  constitutionally valid by reason of Articles 15(4) and 16(4) and  various directive principles of State policy, but the Court cannot  ignore the constitutional morality which embraces in itself the  doctrine of equality.  It would be constitutionally immoral to  perpetuate inequality among majority peop0le of the country in the  guise of protecting the constitutional rights of minorities and  constitutional rights of backward and downtrodden.  All the rights of  these groups are part of right to social development which cannot  render national interest and public interest  subservient to right of  an individual or right of community.  In the event the minorities are not granted the right to  establish educational institutions of their choice and admit students  of their community, the right of equality would lose all its purpose  and relevance.  It is in that sense the rights of the majority and  minority must be held to be equal.  In my opinion the provisions of  Articles 19(1)(g), 29(2) and 30 must be so construed. REASONABLE REGULATIONS:

So far as institutions imparting professional education are  concerned, having regard to the public interest, they are bound to  maintain excellence in standard of education.  To that extent, there  cannot be any compromise and the State would be entitled to impose  restrictions and make regulations both in terms of Article 19(1)(g) and  Article 30 of the Constitution of India.  The width of the rights and  limitations thereof of unaided institutions whether run by a majority  or a minority must conform to the maintenance of excellence.  With a  view to achieve the said goal indisputably the regulations can be made  by the State. The right to administer does not amount to right to maladminister  and the right is not free from regulation.  The regulatory measures are  necessary for ensuring orderly, efficient and sound administration.   The regulatory measures can be laid down by the State in the  administration of minority institutions.

EXTENT OF REGULATIONS :         Article 30(1) of the Constitution does not confer an absolute  right.  The exercise of such right is subject to permissible State  regulations with an eye on preventing mal-administration. Broadly  stated there are "permissible regulations" and "impermissible  regulations".   

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Some of the permissible regulations/restrictions governing  enjoyment of Article 30(1) of the Constitution are - (i)     Guidelines for the efficiency and excellence of educational  standards (See Sidhrajbhai v. State of Gujarat, (1963) 3  SCR 837; State of Kerala v. Mother Provincial, (1970) 2 SCC  2079; All Saints High School v. Government of Andhra  Pradesh, (1980) 2 SCC 478);             (ii)    Regulations ensuring the security of the services of the  teachers or other employees (See In Re Kerala Education  Bill, and All Saints High School v. Government of A.P.  (supra);   (iii)Introduction of an outside authority or controlling voice in  the matter of service conditions of employees (See All  Saints High School v. Government of A.P. (supra); (iv)    Framing Rules and Regulations governing the conditions of  service of teachers and employees and their pay and  allowances (See State of Kerala v. Mother Provincial  (supra) and All Saints High School v. Government of A.P.  (supra); (v)     Appointing a high official with authority and guidance to  oversee that Rules regarding conditions of service are not  violated, but, however such an authority should not be  given blanket, uncanalised and arbitrary powers (See All  Saints High School v. Government of Andhra Pradesh (supra);  (vi)    Prescribing courses of study or syllabi or the nature of  books [See State of Kerala v. Mother Provincial (supra) and  All Saints High School v. Government of A.P. (supra)]; and (vii)   Regulation in the interest of efficiency of instruction,  discipline, health, sanitation, morality, public order and  the like [See Sidhbajbahi v. State of Gujarat (supra)]  

       Subject to what has been stated in T.M.A. Pai Foundation, some of  the impermissible regulations are : (i)     Refusal to affiliation without sufficient reasons  [All Saints High School v. Government of A.P.  (supra)]; (ii) Such conditions as would completely destroy the  autonomous administration of the educational  institution [All Saints High School v. Government of  A.P. (supra)]; (iii)Introduction of an outside authority either  directly  or through its nominees in the governing body or the  managing committee of minority institution to conduct  the affairs  of the institution  [All Saints High  School v. Government of A.P. (supra)]; (iv) Provision of an appeal or revision against an order of  dismissal or removal by an aggrieved member of staff  or provisions for Arbitral Tribunal [See St. Xaviers  College v. State of Gujarat (supra), Lilly Kurian v.  S.R. Lewina, (1979) 2 SCC 124 and All Saints High  School v. Government of A.P. (supra)];   

WHETHER THE STATE CAN IMPOSE RESERVATION ON A SELF FINANCED INSTITUTION  IN PURPORTED EXERCISE OF ITS RIGHT TO ENFORCE THE DIRECTIVE PRINCIPLES  OF STATE POLICY

       The purported right of the States to prescribe a certain  percentage of seats for their nominees including those belonging to the  reserved category candidates is said to have arisen from:

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(i)     The State grants essentiality certificate in terms  whereof in the event of closure of the institution the  State undertakes to take over. (ii)    The States have a duty to enforce Directive Principles  of State Policy in terms of Article 38, 41, 45 and 47 of  the Constitution of India.         Directive Principles of State Policy contained in Part IV of the  Constitution of India are not justiciable.         Equality clauses contained in Part III of the Constitution are to  be found in Articles 14, 15 and 16.  Whereas Article 14 mandates  equality amongst all sections of people, Articles 15 and 16 deal with  the matters specified therein namely, prohibition of discrimination on  grounds of religion, race, caste, sex or place of birth and equality of  opportunities in matters of public employment.  

       We are concerned in this case with Article 15.  Clauses (3) and  (4) of Article 15 of the Constitution of India read thus: "(3) Nothing in this article shall prevent the  State from making any special provision for  women and children."  "(4) Nothing in this article or in clause (2)  of article 29 shall prevent the State from  making any special provision for the  advancement of any socially and educationally  backward classes of citizens or for the  Scheduled Castes and Scheduled Tribes."

       The said provisions were inserted by the Constitution First  Amendment Act, 1951.  There, thus, exists provision for an exception to  Articles 14 and 15 as also Clause (2) of Article 29 of the Constitution  of India.  The State has also a right to make some reservation for  women and children in terms of Clause (3) of Article 15 of the  Constitution of India.  Clauses (3) and (4) of Article 15 provide an  exception to the general rule.  A special provision either for women  and children in terms of Clause (3) or for advancement of social and  backward class of citizens of Scheduled Castes and Scheduled Tribes in  terms of clause (4) must be made by the State in terms of a legislation  or an executive order.  Such a legislation or executive order would be  in relation to the State action.  The said provisions cannot be  extended by way of imposition of restriction or regulation so as to  impair the right of a citizen of India under Article 19(1)(g) or  Article 30 thereof.  The question which may arise is as to whether the  State can mandate upon an industry or a business house (for example) to  provide job to a person belonging to a reserve category?  If not, the  necessary corollary would be that such a restriction or regulation  cannot be imposed on a citizen carrying on an ’occupation’.  The right  of a citizen in terms of Article 19(1)(g) of the Constitution whether  ’to practise any profession’ or ’to carry on any business/occupation’  must be the same or similar.  The reasonable restrictions in terms of  Clause (6) must be on the exercise of a right conferred by the said  sub-clause.  Although reasonable restrictions can be imposed on  exercise of such right in terms of the constitutional scheme, the State  cannot impose its own duties and obligations upon a citizen.         Furthermore, Clauses (3) and (4) of Article 15 are enabling  provisions.  The States were to take appropriate steps required  therefor within the bounds, that is, limited only for uplifting the  weaker sections and not for conferring upon them a preferential right.   Reservation can be made inter alia by way of compelling State  necessity.  In any event the executive policy of the State cannot be  thrust upon the citizens without any valid legislation.

At this juncture, it may be useful to refer to the decisions of  this Court in Re: the Kerala Education Bill, 1957 (supra) wherein S.R.  Das, J speaking for the Constitution Bench held in the following terms: "Learned counsel for the State of Kerala

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referred us to the directive principles  contained in Art. 45 which requires the State  to endeavour to provide, within a period of ten  years from the commencement of the  Constitution, for free and compulsory education  for all children until they complete the age of  fourteen years and with considerable warmth of  feeling and indignation maintained that no  minorities should be permitted to stand in the  way of the implementation of the sacred duty  cast upon the State of giving free and  compulsory primary education to the children of  the country so as to bring them up properly and  to make them fit for discharging the duties and  responsibilities of good citizens. To pamper to  the selfish claims of these minorities is,  according to learned counsel, to set back the  hands of the clock of progress. Should these  minorities, asks learned counsel, be permitted  to perpetuate the sectarian fragmentation of  the people and to keep them perpetually  segregated in separate and isolated cultural  enclaves and thereby retard the unity of the  nation ? Learned counsel for the minority  institutions were equally eloquent as to the  sacred obligation of the State towards the  minority communities. It is not for this Court  to question the wisdom of the supreme law of  the land. We the people of India have given  unto ourselves the Constitution which is not  for any particular community or section but for  all. Its provisions are intended to protect  all, minority as well as the majority  communities. There can be no manner of doubt  that our Constitution has guaranteed certain  cherished rights of the minorities concerning  their language, culture and religion. These  concessions must have been made to them for  good and valid reasons. Article 45, no doubt,  requires the State to provide for free and  compulsory education for all children, but  there is nothing to prevent the State from  discharging that solemn obligation through  Government and aided schools and Art. 45 does  not require that obligation to be discharged at  the expense of the minority communities. So  long as the Constitution stands as it is and is  not altered, it is, we conceive, the duty of  this Court to uphold the fundamental rights and  thereby honour our sacred obligation to the  minority communities who are of our own.  Throughout the ages endless inundations of men  of diverse creeds, cultures and races - Aryans  and non-Aryans, Dravidians and Chinese,  Scythians, Huns, Pathans and Mughals - have  come to this ancient land from distant regions  and climes. India has welcomed them all. They  have met and gathered, given and taken and got  mingled, merged and lost in one body. India’s  tradition has thus been epitomised  in  the  following noble lines :  

        "None shall be turned away          From the shore of this vast sea of  humanity

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        That is India" (Poems by Rabindranath  Tagore). Indeed India has sent out to the world her  message of goodwill enshrined and proclaimed in  our National Anthem :  

      "Day and night, thy voice goes out from           land to land,        calling Hindus, Buddhists, Sikhs and  Jains           round thy throne        and Parsees, Mussalmans and Christians.        Offerings are brought to thy shrine by           the East and the West           to be woven in a garland of love.        Thou bringest the hearts of all peoples           into the harmony of one life,        Thou Dispenser of India’s destiny,           Victory, Victory, Victory to thee."     (Rabindranath Tagore) It is thus that the genius of India has been  able to find unity in diversity by assimilating  the best of all creeds and cultures. Our  Constitution accordingly recognises our sacred  obligations to the minorities. Looking at the  rights guaranteed to the minorities by our  Constitution from the angle of vision indicated  above, we are of opinion that cl. 7 (except  sub-cls. 1 and 3 which apply only to aided  schools) and cl. 10 may well be regarded as  permissible regulation which the State is  entitled to impose as a condition for according  its recognition to any educational institution  but that cl. 20 which has been extended by cl.  3(5) to newly established recognised schools,  in so far as it affects educational  institutions established and administered by  minority communities, is violative of Art.  30(1)."

       Mathew, J. speaking for a 9-Judge Bench of this Court in  Ahmedabad St. Xavier’s College Society  (supra) laid down that the  State necessity cannot be foisted upon the minority.  It was held:  "We find it impossible to subscribe to the  proposition that State necessity is the  criterion for deciding whether a regulation  imposed on an educational institution takes  away or abridges the right under Article 30(1).   If a legislature can impose any regulation  which it think necessary to protect what in its  view is in the interest of the State or  society, sounds paradoxical that a right which  the Constitution makers wanted to be absolute  can be subjected to regulations which need only  satisfy the nebulous and elastic test of State  necessity.  The very purpose of incorporating  this right in Part III of the Constitution in  absolute terms in marked contrast with the  other fundamental rights was to withdraw it  from the reach of the majority.  To subject the  right today to regulations dictated by the  protean concept of state necessity as conceived  by the majority would be to subvert the very  purpose for which the right was given."         

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       This Court in Suneel Jatley and Others Vs. State of Haryana and  Others [(1984) 4 SCC 296] held that reservations for students coming  from rural areas would be bad in law.

LOCAL NEEDS :              It is difficult to define precisely what would constitute "local  needs".  Mr. Venugopal refers to the Medical Council of India  Regulations, 1999 for the purpose of showing the requirements necessary  to be considered by the State Government for the grant of essentiality  certificate.  The State Government alone would be in a position to  determine local needs which may be based, for instance, in the case of  doctors, on the ratio of doctors to the population of the State.  Other  factors such as the percentage of the relevant minority in the State,  the number of minority professional colleges belonging to that  particular linguistic/religious minority in the State, percentage of  poorer and backward sections in the State, total number of professional  colleges therein, contends Mr. Venugopal, would be relevant factors.   This may be so but similarly there are many more factors that would  contribute to local needs.  The criteria laid down in MCI Regulations  no doubt provide for some guidelines for the purpose of determination  of local needs but the same cannot be said to be exhaustive.  Local  needs would vary from State to State.  Even development of a backward  area may be a local need.  Absence of good educational institutions in  particular area may also be a local need.  The State may, in pursuit of  its policy for the development of the people, consider it expedient to  encourage entrepreneurs for establishing educational institutions in  remote and backward areas for the benefit of the local people.  Local  needs, therefore, cannot be defined only with reference to the State as  a unit.   For good reasons the State may not like to establish  professional colleges or institutions only in their capitals.   

ESSENTIALITY CERTIFICATE :         Although local needs, thus, may have to be determined keeping in  view the factors enumerated therein but it must also be noticed that no  essentiality certificate is required to be given by the State in  relation to engineering and other professional colleges.  While laying  down the law based on interpretation of a Constitution as well as a  judgment, we cannot take a myopic view and hold that ’local needs’ must  be referable to the medical education.  Furthermore, it may be  difficult to give a restrictive meaning to the expression ’local needs’  i.e. keeping the same confined to the area where the educational  institution is sought to be established inasmuch as the right of  minority extends to the entire State and, thus, the local needs may  also have direct nexus having regard to the need of the State.         In State of Maharashtra vs. Indian Medical Association and Others  [(2002) 1 SCC 580], this Court did not decide the question as to  whether the expression "technical education" occurring in Article  371(2)(c) of the Constitution is distinct and different from "medical  education".  The questions which arise for consideration herein did not  arise there.         In Indian Medical Association case (supra), this Court was  concerned with Maharashtra University of Health Sciences Act, 1998  wherein the question revolved round as to whether the essentiality  certificate would be necessary for the State to establish a Government- run medical college.         We cannot read the said judgment out of context.

INTERPRETATION OF A JUDGMENT :          A judgment, it is trite, is not to be read as a statute.  The  ratio decidendi of a judgment is its reasoning which can be deciphered  only upon reading the same in its entirety.   The ratio decidendi of a  case or the principles and reasons on which it is based is distinct  from the relief finally granted or the manner adopted for its disposal.  [See Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa  and Others Vs. N.C. Budharaj (Deceased) By LRs. And Others (2001) 2 SCC

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721]         In Padma Sundara Rao (Dead) and Others Vs. State of T.N. and  Others [(2002) 3 SCC 533], it is stated: "There is always peril in treating the words of  a speech or judgment as though they are words  in a legislative enactment, and it is to be  remembered that judicial utterances are made in  the setting of the facts of a particular case,  said Lord Morris in Herrington v. British  Railways Board ((1972) 2 WLR 537 : 1972 AC 877  (HL) [Sub nom British Railways Board v.  Herrington, (1972) 1 All ER 749 (HL)]).  Circumstantial flexibility, one additional or  different fact may make a world of difference  between conclusions in two cases."

       [See also Haryana Financial Corporation vs. Jagadamba Oil Mills  and Another [(2002) 3 SCC 496]          In General Electric Co. Vs. Renusagar Power Co. [(1987) 4 SCC  137], it was held: "As often enough pointed out by us, words and  expressions used in a judgment are not to be  construed in the same manner as statutes or as  words and expressions defined in statutes. We  do not have any doubt that when the words  "adjudication of the merits of the controversy  in the suit" were used by this Court in State  of U.P. v. Janki Saran Kailash Chandra ((1974)  1 SCR 31 : (1973) 2 SCC 96 : AIR 1973 SC 2071),  the words were not used to take in every  adjudication which brought to an end the  proceeding before the court in whatever manner  but were meant to cover only such adjudication  as touched upon the real dispute between the  parties which gave rise to the action.  Objections to adjudication of the disputes  between the parties, on whatever ground are in  truth not aids to the progress of the suit but  hurdles to such progress. Adjudication of such  objections cannot be termed as adjudication of  the merits of the controversy in the suit. As  we said earlier, a broad view has to be taken  of the principles involved and narrow and  technical interpretation which tends to defeat  the object of the legislation must be avoided."                  In Rajeswar Prasad Mishra Vs. the State of West Bengal and  Another reported in AIR 1965 SC 1887, it was held: "Article 141 empowers the Supreme Court to  declare the law and enact it.  Hence the  observation of the Supreme Court should not be  read as statutory enactments.  It is also well  known that ratio of a decision is the reasons  assigned therein."

       (See also M/s. Amar Nath Om Prakash and Others Vs. State of  Punjab and Others [1985 (1) SCC 345] and Hameed Joharan (Dead) and  Others Vs. Abdul Salam (Dead) By LRs. And Others [(2001) 7 SCC 573])

       It will not, therefore, be correct to contend, as has been  contended by Mr. Nariman, that answers to the questions would be the  ratio to a judgment.  The answers to the questions are merely  conclusions.  They have to be interpreted, in a case of doubt or  dispute with the reasons assigned in support thereof in the body of the  judgment, wherefor, it would be essential to read the other paragraphs

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of the judgment also.  It is also permissible for this purpose (albeit  only in certain cases and if there exist strong and cogent reasons) to  look to the pleadings of the parties.

       In Keshav Chandra Joshi and Others Vs. Union of India and Others  [1992 Supp (1) SCC 272], this Court when faced with difficulties where  specific guidelines had been laid down for determination of seniority  in Direct Recruits Class II Engineering Officers’ Association Vs. State  of Maharashtra, (1990) 2 SCC 715 held that the conclusions have to be  read along with the discussions and the reasons given in the body of  the judgment.         It is further trite that a decision is an authority for what it  decides and not what can be logically deduced therefrom. [See Union of  India Vs. Chajju Ram (2003) 5 SCC 568]         The judgment of this Court in T.M.A. Pai Foundation (supra) will,  therefore, have to be construed or to be interpreted on the  aforementioned principles.  The Court cannot read some sentences from  here and there to find out the intent and purport of the decision by  not only considering what has been said therein but the text and  context in which it was said.  For the said purpose the Court may also  consider the constitutional or relevant statutory provisions vis-Ã -vis  its earlier decisions on which reliance has been placed.  FEE STRUCTURE:         On a bare reading of the relevant paragraphs of the judgment some  of which are referred to hereinbefore, it is beyond any doubt that in  the matter of determination of the fee structure the unaided  institutions exercise a greater autonomy.  They, like any other  citizens carrying on an occupation, must be held to be entitled to a  reasonable surplus for development of education and expansion of the  institution.  Reasonable surplus doctrine can be given effect to only  if the institutions make profits out of their investments. As stated in  paragraph 56, economic forces have a role to play.  They, thus,  indisputably have to plan their investment and expenditure in such a  manner that they may generate some amount of profit.  What is forbidden  is (a) capitation fee and (b) profiteering.         However the different State Governments have prescribed different  amounts by way of fees as would appear from the following:- State Fee

Andhra Pradesh Rs. 22000 per annum

Delhi Rs. 45000 per annum

Gujarat Govt. Seats -Rs. 21,000 Management Seats - Rs. 50000

Haryana Rs. 40,000 per annum

Karnataka Rs. 47,590/- For non-Karnataka Rs. 75,590

Kerala Rs. 37,100

Tamil Nadu Management seat - Rs. 30000 Merit student - Rs. 25000

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Uttar Pradesh Rs. 45,000 per annum

       The expression ’Capitation fee’ does not have any fixed meaning.   The Legislatures of some of the States, however, have defined  capitation fee.  We may notice that in the Tamil Nadu Educational  Institutions (Prohibition of Collection of Capitation Fee) Act, 1992,  Capitation fee has been defined as: "capitation fee means any amount by whatever  name called, paid or collected directly or  indirectly in excess of the fee prescribed  under Section 4;"

       Section 4 of the said Act states that any amount collected in  excess of the fee so prescribed is prohibited in the following terms: "Regulation of fee, etc. - (1) Notwithstanding  anything contained in any other law for the  time being in force, the Government, by  notification, regulate the tuition fee or any  other fee or deposit that may be received or  collected by any educational institution or  class or classes of such educational  institutions in respect of any or all class or  classes of students: Provided that before issuing a notification  under this sub-section, the draft of which  shall be published, in the Tamil Nadu  Government Gazette stating that any objection  or suggestion which may be received by the  Government, within such period as may be  specified therein, shall be considered by them. (2) No educational institution shall receive or  collect any fee or accept deposit in excess of  the amount notified under sub-section (1). (3) Every educational institution shall issue  an official receipt for the fee or deposit  received or collected by it."

       Once, however, it is held that such a provision would not  constitute a reasonable restriction within the meaning of Clause (6) of  Article 19, it must also be held that such a provision would not  satisfy the test of permissible regulations within the meaning of  Article 30 thereof.           The ground reality, however, cannot be lost sight of.  It is  true, as has been contended by the learned counsel appearing on behalf  of the applicants, that the Central Government in answer to question  raised in the Parliament has stated that the expenses incurred by the  State for imparting education to the students is very high.  It may  vary from three lakhs to five lakhs.  Some States, however, in their  colleges charge about rupees five thousand per year; whereas the  unaided institutions demand anything between rupees two lakhs to five  lakhs.         Some State Governments unfortunately followed suit, hiked fees  and like many private unaided institutions the State of Haryana has  also demanded the entire amount of fees for the whole course.           The fee structure, thus, in relation to each and every college  must be determined separately keeping in view several factors  including, facilities available, infrastructure made available, the age  of the institution, investment made, future plan for expansion and  betterment of the educational standard etc.  The case of each  institution in this behalf is required to be considered by an

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appropriate Committee.  For the said purpose, even the books of  accounts maintained by the institution may have to be looked into.   Whatever is determined by the Committee by way of a fee structure  having regard to relevant factors some of which are enumerated  hereinbefore, the management of the institution would not be entitled  to charge anything more.           While determining the fee structure, safeguard has to be provided  for so that professional institutions do not become auction houses for  the purpose of selling seats.  Having regard to the statement of law  laid down in para 56 of the judgment, it would have been better, if  sufficient guidelines could have been provided for.   Such a task which  is a difficult one has to be left to the Committee.  While fixing the  fee structure the Committee shall also take into consideration, inter  alia,  the salary or remuneration paid to the members of the faculty  and other staff, the investment made by them, the infrastructure  provided and plan for future development of the institution as also   expansion of the educational institution.       Future planning or  improvement of facilities may be provided for.  An institution may want  to invest in an expensive device (for medical colleges) or a powerful  computer (for technical college).  These factors are also required to  be taken care of. The State must evolve a detailed procedure for  constitution and smooth functioning of the Committee.

       While this Court has not laid down any fixed guidelines as regard  fee structure, in my opinion, reasonable surplus should ordinarily vary  from 6% to 15%, as such surplus would be utilized for expansion of the  system and development of education.         The institutions shall charge fee only for one year   in  accordance with the rules and shall not charge the fees for the entire  course.         Profiteering has been defined in Black’s Law Dictionary, Fifth  edition as:  "Taking advantage of unusual or exceptional  circumstances to make excessive profits"

       With a view to ensure that an educational institution is kept  within its bounds and does not indulge in profiteering or otherwise  exploiting its students financially, it will be open to the statutory  authorities and in its absence by the State to constitute an  appropriate body, till appropriate statutory regulations are made in  that behalf.           The respective institutions, however, for the aforementioned  purpose must file an appropriate application before the Committee and  place before it all documents and books of accounts in support of its  case.           Fees once fixed should not ordinarily be changed for a period of  three years, unless there exists extra-ordinary reason. The proposed  fees, before indication in the prospectus issued for admission, have to  be approved by the concerned authority/ Body set up.  For this purpose  the application should not be filed later than April of the preceding  year of the relevant education session.  The authority/ Body shall take  the decision as regards fees chargeable later by October of the year  concerned, so that it can form part of the prospectus.  No institution  should charge any fee beyond the amount fixed and the fee charged shall  be deposited in a nationalized bank.  In other words, no employee or  any other person employed by the Management shall be entitled to take  fees in cash from the students concerned directly.  The statutory  authority may consider the desirability of framing an appropriate  regulation inter alia to the effect that in the event it is found that  the management of a private unaided professional institution has  accepted any amount other than the fees prescribed by the Committee, it  may have to pay a penalty ten to fifteen times of the amount so  collected and in a suitable case it may also lose its recognition or  affiliation.           However, there cannot be any doubt that before any such order is

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passed the institutions concerned shall be entitled to an opportunity  of being heard.  For the aforementioned purpose, the State shall set up  a machinery to detect cases where amounts in excess of permitted limit  are collected as it is the general experience that students pay a huge  amount.

       However, if for some reason, fees have already been collected for  a longer period the amount so collected shall be kept in a fixed  deposit in a nationalized bank against which no loan or advance may be  granted so that the interest accrued thereupon may enure to the benefit  of the students concerned. Ordinarily, however, the management should  insist for a bond from the concerned students. COMMON ENTRANCE TEST AND PERCENTAGE OF SEATS:         Paragraphs 48 to 66 appear under the heading "Private unaided  non-minority educational institutions" whereas paragraphs 67, 68 and 69  appear under the heading "Private unaided professional colleges".  The  observations made by the bench, however, having regard to paragraphs 58  and 59 are referable to both to the minority and non-minority unaided  institutions.  Paragraph 68 in no uncertain terms lays emphasis on  merit for the purpose of admission to professional institutions.         However, paragraphs 58 and 59 also deal with professional  institutions although discussions appear under different heading.   This, however, would not minimize the importance of the statement of  law made therein.        Paragraph 68 does not state that the statement of law made  therein. applies only to the minorities, as for the purpose of local  needs it refers to different percentages both for minority aided and  non-minority unaided professional colleges.  It cannot, therefore, be  said that paragraph 68 has to be read in isolation and paragraphs 58  and 59 of the judgment would be irrelevant for the said purpose.  If  the said paragraphs are read conjointly, there cannot be any doubt that  merit must be at the forefront.  For the said purpose professional and  higher educational institutions have been clubbed together.           A dichotomy has arisen in view of the findings of the bench  occurring in paragraphs 58 and 59 on the one hand and 68 of the  judgment on the other.  Paras 68 refers to private unaided professional  colleges which would include both minority  and non-minority as would  appear from the following : "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."

       Paragraph 58 clearly states that the merit must play an important  role.  In no uncertain terms, it is directed : "While seeking admission to a professional  institution and to become a competent professional,  it is necessary that meritorious candidates are not  unfairly treated or put at a disadvantage by  preferences shown to less meritorious but more  influential applicants.  Excellence in professional  education would require that greater emphasis be laid  on the merit of a  student seeking admission.   Appropriate observations made in this judgment in the  context of admissions to unaided institutions."

       It, therefore, takes into its fold inter se merit between  minority and non-minority students.         Paragraph 59 contains illustration as to how the merit is usually  determined.  It may be true that paragraph 59 being illustrative in  nature, other options at the hands of the minority institutions are not  excluded but a confusion has certainly crept in as therein both  minority and non-minority have been clubbed together.         Paragraph 59 deals with how to determine the merit by giving

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illustration.  Thus, it does not rule out any other method for  determining the merit which may also include marks obtained in  qualifying examination. Paragraphs 58, 59 and 68, in my opinion, must  be allowed to be given effect to and read conjointly for the said  purpose.         Paragraph 68 should be read in five parts : (1)     A difference is sought to be made as regards rules and  regulations applicable to the aided institutions vis-Ã -vis  unaided professional institutions.  (This shows that the  regulations relating to admission of students shall be less rigid  for unaided institutions as compared to aided institutions); (2)     While conceding autonomy to the unaided professional institutions  (both minority and non-minority), it is mandatory that the  principle of merit cannot be foregone or discarded (This shows  that role played by merit must be given due importance); (3)     The conditions may be laid down by the University or the other  statutory bodies entitled to grant recognition to provide for  merit based selection.  (The same, however, in my opinion, would  not mean that no condition other than those imposed at the time  of grant of recognition can be imposed by way of legislation or  otherwise inasmuch as the field of imparting education in  professional institutions is governed by statutes.  To the said  extent, it has to be read down); (4)     The management of a private unaided professional colleges for the  purpose of admitting students will have options :- (a) to hold a  common entrance test by itself; or (b) to follow the common  entrance test held by the State or the University.  The students  belonging to the management quota may be admitted having regard  to the common entrance test either held by the management or by  the State/University, although the test may be common.  So far as  students belonging to poorer or backward section of society is  concerned, their seats will have to be filled up on the basis of  counselling by the State agency. (As would appear from the  discussions made hereinafter, it cannot be taken to its logical  conclusin);  (5)     The percentage of management quota and the rest is required to be  prescribed having regard to the local needs.  (However, the  percentage for minority unaided and non-minority unaided  institutions may be different). It is not correct to say that only because two different  expressions "certain" and "different" have been mentioned at two places  in para 68, they connote two different meanings.  They will have to be  read in the context in which they have been used.  As a logical  corollary, it will also be incorrect to say that minority unaided  institutions can fill up all the seats from amongst the students  belonging to their community whereas the non-minority unaided  institutions will have no such right.  The very fact that different  percentages are to be fixed up for minority unaided and non-minority  unaided institutions is itself a clear pointer to show that although  different percentages may be prescribed therefor; but both minority  unaided and non-minority institutions can admit the students of their  choice to the extent of the percentage so prescribed, albeit without  giving a go bye to the merit criteria. Thus, reservation can be made out of the candidates who have been  found to be meritorious on the above basis.  For instance, if 100  students qualify on merit either through a school leaving examination  or a common entrance test, reservation can be made for certain  percentage of students.  The balance of the seats can then made  available to students who belong to non-minority community including  poorer or backward section of society as mentioned in paragraph 68 of  the judgment.  This will not only take care of admission with regard to  meritorious candidates including minority candidates for whom a  reservation is made but also for other students as for the local needs  of the State.      

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       If it is to be held that in a case of minority institution all  the seats could be filled in by members of their community/language, if  available, the same would run counter to para 68 of the judgment which  says about certain percentage which can never be 100%.  The expression  "different percentages" occurring in para 68 would clearly mean there  cannot be any fixed percentage.  In a given case it may be more than  90% but in another it may be less than 50%.  Different percentages must  be worked out in terms of the need of the institution.  It has nothing  to do with minority or non-minority; aided or unaided.          The dictum of the court in St. Stephen vis-Ã -vis T.M.A. Pai  Foundation must be read in that context.  It cannot be said as a matter  of legal proposition that in each and every case the minority  educational institutions would be entitled to fill up more than 50% of  the seats from amongst the students of their choice and that too  irrespective of merit. The fact that even students belonging to  minority community take admission in colleges run or aided by the State  or other private unaided colleges cannot be lost sight of.  On taking  into consideration all the relevant criteria only the percentage can be  worked out.  It would be, in my considered opinion, wrong to compare  the unaided institutions always with aided institutions.  St. Stephen  should be understood in proper  perspective.  What is explained in  T.M.A. Pai (supra) is that there cannot be any fixed percentage.  Each  case will have to be considered  on its own merit.  Need of the  institution should be the prime concern.  Percentage will have to be  worked out having regard to the need only.             For the purpose of achieving excellence in a professional  institution, merit indisputably should be a relevant criterion.  Merit,  as has been noticed in the judgment, may be determined in various ways  (Para 59).  There cannot be, however, any fool-proof method whereby and  whereunder the merit of a student for all times to come may be judged.   Only, however, because a student may fare differently in a different  situation and at different point of time by itself cannot be a ground  to adopt different standards for judging his merit at different points  of time.  Merit for any purpose and in particular for the purpose of  admission in a professional college should be judged as far as possible  on the basis of same or similar examination.  In other words, inter se  merit amongst the students similarly situated should be judged applying  the same norm or standard.   Different types of examinations, different  sets of questions, different ways of evaluating the answer books may  yield different results in the case of the same student.   

       Selection of students, however, by the minority institutions even  for the members of their community cannot be bereft of merit. Only in a  given situation less meritorious candidates from the minority community  can be admitted vis-a-vis the general category; but therefor the  modality has to be worked out.  For the said purpose de facto equality  doctrine may be applied instead of de jure equality as every kind of  discrimination may not be violative of the equality clause.  (See  Pradeep Jain vs. Union of India - 1984 (3) SCC 654).  

       It may be true that some self-financed professional institutions  have been permitted to hold their own examination so as to enable the  management to fill up their seats from its own quota, as fixed by the  State Government.  Although no complaint has yet been received by the  respective Governments, it may be possible that the time was not ripe  for it. As and when complaints are received with regard to holding of  an impartial and transparent test, the same has to be examined by the  State/University.  We may, however, place on record that the State of  Maharashtra has placed before us a chart showing that some of the  students had appeared at two examinations and one who got only 8%      in the common entrance test held by the State, passed the examination  held by the management.  From the above chart supplied to us by the  State of Maharashtra, it appears that only three students who had  appeared both at the common entrance test held by the State and the  management  had passed the common entrance test held by the State

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whereas a large number of students had passed the test held by the  management, although they could not pass the Common Entrance Test.  The  merit of the students whether belonging to the minority community or  otherwise, thus, may be required to be placed on more rigid test.

       While considering this question, we may not also loose sight of  the fact that a student who aspires to take admission in a professional  college keeping in view the extent of competition he has to face, would  like to appear in as many examinations as possible.  For the said  purpose he or she may not choose only one State.  Even in a State like  Karnataka, as has been noticed in T.M.A. Pai Foundation (supra), a  large number of private institutions exist.  But, if they are permitted  to hold their own examinations, not only the students will have to  purchase different admission forms, which as noticed hereinbefore, may  cost between Rs.500/- to Rs.1,000/- but he may be asked to appear in  examinations at various places on the same day or on the next day and  having regard to the distance, the transport facilities and other  factors, he may not be able to appear therein.   Travelling from place  to place for the purpose of appearance at the examinations in quick  succession would also entail a huge expenditure.   It may also be  difficult to direct that such examinations be held with sufficient time  gap. The fact remains that in terms of this judgment each State will be  entitled to hold their own examinations.  We are also not oblivious of  the fact that allegations have been made that some institutions even  may not sell an admission form unless it is assured of a hefty sum at  the time of admission.  It may be true that the States like Karnataka,  Kerala and Tamil Nadu have permitted the minority institutions to  conduct their own examinations for the purpose of admitting the  students of their choice.  Some institutions have pointed out that they  have been holding such examinations for a long long time on all-India  basis and fairness and transparency of such examinations have never  been questioned by any State or the statutory authorities. We do not  intend to go into the correctness or otherwise of the said plea.   However, their cases may be considered separately by the appropriate  body if any occasion arises therefor.  While granting the right to  determine the suitability of a candidate on the basis of marks obtained  in the qualifying examination or on the basis of their own examination,  or an examination conducted by the State, merit cannot be sacrificed.   Some mechanism as far as practicable must be found out also for the  purpose of judging the inter se merit.   

Furthermore, answers to Questions 5 (a) and (c), would go to show  that the minority unaided institution have a right to evolve their own  machinery for admitting the students on the basis of merit subject of  course to passing the fairness and transparency test.  Even for non- minority professional institutions such a right has been recognized.    There is no mechanism which would ensure fairness or transparency of  the examination held by each and every unaided professional  institution.  A suggestion has been mooted out that  Associations/Federations of private institutions have been formed.  It  may, thus, be possible to protect the right of the minority if such  Associations/Federations take a decision in this behalf in consultation  with the statutory authorities or the concerned State as regards  holding of a common entrance test for the said purpose.                  We may notice that Mr. R.N. Trivedi, learned Additional Solicitor  General, has submitted that the Central Government may hold such all- India examinations but there are practical difficulties in this behalf,  as has been rightly pointed out by Mr. Venugopal.  The need of each  State must be judged separately.   A number of students may like to  take a chance of taking admission in more than one State.  Unless  proper mechanism and requisite infrastructure therefor is created, as  at present advised, it may not be possible for the Central Government  to hold any examination on all-India basis.  There is another aspect of  the matter which cannot be lost sight of.  There must be an agency  which would have to determine the equivalence of several examinations.  

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Many universities have adopted such a mechanism.  The standard of  education varies from State to State or university to university or  board to board.  In such a situation, equivalence of degrees must  be  considered for the said purpose by an appropriate authority.           In the aforementioned premise, I am of the opinion that the right  of the minorities should be protected and fairness and transparency in  holding such examinations would also be maintained if the minority  institutions come to a consensus through their association or  federation to hold a common test under the supervision of a monitoring  committee which may be subject to verification at a later stage by  taking recourse to : (1) report back system; (2) all answer papers may  be preserved; and (3) in case of dispute some independent agency may  determine the same.  

       It goes without saying that having regard to the number of  institutions vis-Ã -vis number of candidates with reference to the local  needs, it will be open to the State/University to fix higher cut-off  marks than prescribed by the Medical Council of India or the All India  Council for Technical Education.  So far as common entrance test  proposed to be held by the Federation/Association of private unaided  professional institutions is concerned,  the modalities and the  detailed procedure therefor must be worked out so that it may not cause  any undue inconvenience to either the students or the institution(s).   By way of an example, we may state that if a common entrance test is  held under the auspices of the Federation/Association, it must clearly  spell out that those who belong to minority community, whether based on  religion or language, shall be admitted only in the institutions run by  such community and not in the institutions run by the other community  at the first instance.  Only in the event the seats remain unfilled up,  they would clearly be filled up by the students belonging to the  general category including those who do not belong to that particular  community running the institution.  Similarly, the mode and manner in  which the expenses are to be incurred for holding the examinations, the  apportionment thereof as well the disbursement of the amount earned by  way of selling the admission forms etc. have to be worked out by the  Committee.

       The minority institutions imparting professional courses may have  a legal or constitutional right to hold their own examination; but a  serious consideration is required to be bestowed as to whether for the  purpose of judging merit they should opt for the Common Entrance Test  held by the State.  Such a course, if resorted to, would not only be  helpful for determining the inter se merit between the  students/candidates but also would be sufficient to be indicative of  the fact how and to what extent the students belonging to minorities  lag behind the majority so that special efforts can be made to bring  their standard up to the national level.

       The quota of seats to be filled up by the State Government for  the poor or weaker sections of society may be fixed on the basis of the  entrance test held by the concerned State Government or the University.   Economic disability of a meritorious student should come to the  forefront for determining criteria as regard poor or weaker sections of  the society.   

       There cannot, however, be any gain-saying that the appropriate  statutory authority on a deeper consideration of the matter may  prescribe a suitable method for the purpose of determining the merit as  also the fair and transparent manner in which such examinations can be  conducted.  Such a power exists under the UGC Act, MCI Act and AICTE  Act.  The relevant enactments wherein these statutory authorities have  been created provide for such law.  However, assuming such a machinery  is not evolved, the State may constitute a body which may be headed by  a person who has been a judge of the High Court to be nominated by the  Chief Justice thereof.  Standard of education at no cost shall be given

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a go by.            Furthermore, any institution if it thinks proper and expedient,  may file an application for grant of exemption so as to enable it to  hold its own examination.  An application in this behalf should be  filed by the end of April of the previous year in which such  examination is sought to be held.  The aforementioned body would pass  an appropriate order within three months from the date of receipt of  such representation upon giving an opportunity of hearing and placing  of material in support of its stand, to the institution concerned.         Several States like State of Tamil Nadu, Karnataka and Kerala  have permitted the educational institutions to hold their own  examination for the purpose of admitting students within their quota.   Some of the States like Maharashtra and Gujarat insist on admitting the  students through Common Entrance Test.  The following chart gives a  glimpse as to how different States understood the judgment of this  Court differently:

State Admissions

Govt. Management Andhra Pradesh 85% 15% Delhi 95% 15% Max Gujarat 85% 15% Haryana 15% AIEEE 15%

70% CEET 2003

Karnataka 75% 25% Kerala 50% 50% Orissa 85% 15% Tamil Nadu 50% 50% Uttar Pradesh 85% 15% Chhattisgarh 60% 40% Maharashtra 85% 15% (These seats  must also be  filled from the  State common  entrance test  list)

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       Unless there exists any exigency normally the institutions will  have the right to admit a higher percentage of students depending upon  their need.  However all such students must be admitted only on merit.   In the event, some seats remain vacant, they must be filled by general  category students strictly on merit.         As noticed hereinbefore, different States and different High  Courts have laid down different percentages of seats for management and  the State.  The learned counsels appearing on behalf of parties have  submitted that this Court may, with a view to avoid any future  controversy, fix a definite percentage for the said purpose.  We are  afraid that it is not possible.  Different institutions may be  established by different minority communities.  The need of the  minority community may differ from State to State.  The need of the  minority community may have a nexus with the population belonging to  that community in that State.  It will further depend upon various  other relevant factors.  By way of example, we may say that in a State  where the percentage of a particular religion may be 30 or 35, the  minority institution established by members of that religion may have a  higher stake than the members of the community professing a religion  but the population of which is negligible.  Similar may be the case  with minority institutions based on language.           The percentage of seats will also depend upon the need of the  community in a particular State as also the need of the institution  itself.  The nature of the professional course would also have  relevance.  All these factors must be taken into consideration by the  appropriate committee or Body so long a statutory regulation is not  framed in this behalf.         Furthermore, the need of the community vis-Ã -vis the local needs  must be judged upon taking into consideration the relevant factors and  ignoring irrelevant ones.  In terms of Paragraph 68 of the judgment,  local need would be a relevant factor for the purpose of determining  the percentage of students who would be admitted on non-minority quota.   Local needs, if it is compelling state interest, will have a primacy  over the need of the minority community and in that view of the matter  it would not be correct to lay down a proposition of law that the need  of that community in the State would be paramount.  Each case, thus,  has to be considered on its own merit and no hard and fast rule can be  laid down therefor.         For the aforementioned purpose also, a machinery should be  evolved in the respective States, the decision of which shall be final  and binding.         However, there may not be any permanent Committee functioning as  a tribunal.  Such a body, if any, must be created under a statute.  A  tribunal with an adjudicatory power should not be directed to be  created by this Court in exercise of its power under Article 142 of the  Constitution of India.  This direction is only interim in nature and is  being issued in the interest of all concerned.  It is, therefore,  clarified that the body created in terms of this judgment would  function only so long a statutory body, if any, does not come into  being by reason of a statute or statutory rules.  The Legislature or  the rule making authority may, however, lay down the procedure for  proper functioning thereof. MERIT:         Technical profession in general and medical profession in  particular in all countries and in all ages has been considered to be a  noble profession.  To acquire excellence,  these professions demand a  very high calibre, which criteria can be satisfied only by the  meritorious students.  If we want to achieve very high standard which  would be comparable to the standard of the developed countries, then  merit and merit alone should be the basis of selection for the  candidates.         Secondly, not only to maintain high standard of education, but  also to maintain uniformity of standard, the right of selection of  candidates for any professional course cannot be left to the discretion  of any individual management.  Efforts must be made to find out one

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single standard for all the institutions.         Thirdly, to ensure high standard of education and for that  purpose to ensure admission to the most eligible candidates, requiring  merit in a poor country like ours, the tuition and other fees should be  within the reach of common people.         So far as minority institutions are concerned, merit criteria  would have to be judged like a pyramid.  At the kindergarten, primary,  secondary levels, minorities may have 100% quota.  At this level the  merit may not have much relevance at all but at the level of higher  education and in particular professional education and post graduate  level education, merit indisputably should be a relevant criteria.  At  the post-graduation level, where there may be a few seats, the minority  institutions may not have much say in the matter.  Services of doctors,  engineers and other professionals coming out from the institutions of  professional excellence must be made available to the entire country  and not to any particular class or group of people.  All citizens  including the minorities have also a fundamental duty in this behalf.

HUMAN RIGHTS ASPECTS OF SELECTION ON THE BASIS OF MERIT:    This aspect of the matter may also be considered from Human  Rights angle.  Rights of minorities, on the one hand, and rights of persons to  have higher education and right of development should be so construed  so as to enable the Court to give effect thereto.         The Universal Declaration of Human Rights, 1948 provides for 27  rights.   Right of Education is also one of the human rights.  Article  26 reads thus:  "(1) Everyone has the right to education.   Education shall be free, at least in the  elementary and fundamental stages.  Elementary  education shall be compulsory.  Technical and  professional education shall be made generally  available and higher education shall be equally  accessible to all on the basis of merit." (2)     Education shall be directed to the full  development of the human personality and to the  strengthening of respect for human rights and  fundamental freedoms.  It shall promote  understanding, tolerance and friendship among  all nations, racial or religious groups, and  shall further the activities of the United  Nations for the maintenance of peace. Parents have a prior right to choose the kind  of education that shall be given to their  children."                                                 (Emphasis Supplied)         Article 3 of Convention Against Discrimination in Education  (1960) reads thus:          "Article 3 undertakes "to ensure, by  legislation, where necessary, that there is no  discrimination in the admission of pupils to  educational institutions; not to allow any  difference of treatment by the public  authorities between nationals, except on the  basis of merit or need, in the matter of school  fees and the grant of scholarships..to give  foreign nationals resident within their  territory the same access to education as that  given to their own nationals."

       Apart from the aforementioned rights, Right to Development is  also a human right.  "Development" connotes an ongoing process.  An  economic prosperity or elimination of poverty is not the only goal to  be achieved but along with it allows individuals to lead a life with

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dignity with a view to participate in the Governmental process so as to  enable them to preserve their identity and culture.

       We may refer to the UN Declaration on the Right to Development,  1986.  The Declaration describes development as a comprehensive  economic, social, cultural and political process, which aims at  constant improvement of well being of people and of individuals on the  basis of their active, free and meaningful participation in the  process.               In the UNESCO Convention against Discrimination in Education, the  States parties agree (Article 5[c]) that "it is essential to recognize  the right of members of national minorities to carry on their own  educational activities, including the maintenance of schools and,  depending on the educational policy of each State, the use or the  teaching of their own language," and set out the circumstances in which  this right may be exercised.  The European Convention on Human Rights  contains a provision (Article 14) in which "association with a national  minority" is listed among a series of grounds upon which discrimination  is prohibited.  The International Covenant on Civil and Political  Rights, adopted by the UN General Assembly in 1966, includes an article  on the rights of persons belonging to minorities which reads: "Article 27. In those States in which ethnic,  religious or linguistic minorities exist,  persons belonging to such minorities shall not  be denied the right, in community with other  members of their group, to enjoy their own  culture, to profess and practice their own  religion, or to use their own language."           Among the decisions of principal organs of the United Nations  which have dealt with the question of special protective measures for  ethnic, religious, or linguistic groups are three resolutions of the  General Assembly: (1) on the future government of Palestine, (2) on the  question of the disposal of the former Italian colonies and (3) on the  question of Eritrea.  In addition, the Statue of the City of Jerusalem,  approved by the Trusteeship Council, on 4 April 1950, provides special  protective measures for ethnic, religious, or linguistic groups in  articles dealing with human rights and fundamental freedoms, the  legislative council, the judicial system, official and working  languages, the educational system and cultural and benevolent  institutions, and broadcasting and television.         From the texts of the instruments and decisions mentioned above,  it may be inferred that the term "minority" is applied internationally  to two distinct categories of persons: (a) minorities whose members  desire equality with dominant groups in the sole sense of non- discrimination, and (b) those whose members desire equality with  dominant groups in the sense of non-discrimination and the recognition  of certain special rights and the rendering of certain positive  services.  The kind of "minority rights" that they feel they are  entitled to claim if their equality within the State is to be real  includes one or more of the following: (a)     provision of adequate primary and secondary education  for the minority in its own language and its cultural  traditions; (b)     provision for maintenance of the culture of the  minority through the establishment and operation of  schools, libraries, museums, media of information,  and other cultural and educational institutions; (c)     provision of adequate facilities to the minority for  the use of its language, either orally or in writing,  in the legislature, before the courts, and in  administration, and the granting of the right to use  that language in private intercourse; (d)     provision for respect of the family law and personal  status of the minority and their religious practices

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and interests; and (e)     provision of a certain degree of autonomy.

       Several areas are sought to be secured wherefor the struggle  continues. The gap between the developed and the developing countries  is a yawning one.  Whereas there has been a rapid economic growth in a  few countries bringing millions of people out of poverty, narrowing the  gap between haves and have-nots, a large number of countries have seen  the gap grow and poverty increase.  Development and the eradication of  poverty vis-Ã -vis human rights must be seen in that perspective.

       The right to establish professional colleges both by minorities  and non-minorities has been found in Article 19(1)(g) as also Article  30 of the Constitution of India.  These rights vis-Ã -vis restrictions  and limitations thereupon should be construed not only from economic  point of view but also having regard to the international treaties,  declarations and conventions on Human Rights.  The right of a minority  is a human right so also the right of development.  Thus, subject to  reasonable restrictions, any unaided institution imparting professional  courses may although exercise greater autonomy in the matter of  management and determination of the fee structure, it will have a  limited right so far as the right to admit students is concerned.   T.M.A. Pai Foundation says that merit shall be the criteria. Right of  development finds place in WTO and GATT.  It takes into consideration  globalisation and opening up of economy.  Excellence in professional  education must be viewed from the economic interest in the country.  In  order to compete with the other developed countries, GDP of India  should be around 15% instead of present rate of 5%.   This can be  achieved only by producing students of excellence, which can be  achieved only by encouraging institutions of excellence imparting  professional education to those who are meritorious.  Giving  encouragement to the students, having better merit will, thus, have a  direct nexus with the economic and consequently the national interests  of the country.  The right of development from the human right point of  view must be construed liberally.  When there are two competing human  rights namely human rights for the religious minorities and the human  rights for development, having regard to the economic and national  interest of the country in the matter of admission of students, the  latter should be allowed to prevail subject to protection of the basic  minority rights.  The State may have to strike a delicate balance  between these two competing rights.  Furthermore, the right to admit  students may vary from course to course, discipline to discipline.  At  the stage of  post graduate level, there may be only one seat or two  seats, and, thus, in such a situation the right of the minority  institutions to admit a student may be less than in the case of non- professional course.

"Proper education", Nani Palkhiwala said, "should lead to  civilization."  Recently, in Kapila Hingorani vs. State of Bihar [JT  2003 (5) SC 1], a Bench of this Court noticed the following  observations of Field, J. in Munn vs. Illinois [(1877) 94 US 113] as to  what is "Life", which was in the following terms :

"[S]omething more than mere animal existence and the  inhibition against the deprivation of life extends to  all those limits and faculties by which life is  enjoyed."   

Therein it was noticed  :  "The right to development in the developing  countries is itself a human right.  The same has been  made a part of WTO and GATT.  In ’The World Trade  Organization, Law, Practice, and Policy (Oxford) by  Matsushita Schoenbaum and Mauroidis at page 389, it  is stated:

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"The United Nations has proclaimed the  existence of a human right to development.    This right refers not only to economic  growth but also to human welfare, including  health, education, employment, social  security, and a wide-range of other human  needs.  This human right to development is  vaguely defined as a so-called third- generation human right that cannot be  implemented in the same way as civil and  political human rights. Rather, it is the  obligation of states and intergovernmental  organizations to work within the scope of  their authority to combat poverty and misery  in disadvantaged countries."

                                       [Emphasis supplied] Poverty to a great extent can be combated through education.  

Having regard to globalisation and opening up of the market, the  State expects various medical colleges and educational institutions and  universities to move in.  Under WTO and GATT human development has  taken its firm root.  A decent life to the persons living in the  society in general is perceived.  

In the said scenario this Court in Kapila Hingorani(supra)  observed :                  "The States of India are welfare States.  They having  regard to the constitutional provisions adumbrated in  the Constitution of India and in particular Part IV  thereof laying down the Directive Principles of the  State Policy and Part IVA laying down the Fundamental  Duties are bound to preserve the practice to maintain  the human dignity."

       To achieve this, the promotion of human development and the  preservation and protection of human rights proceed from a common  platform.  Both reflect the commitment of the people to promote  freedom, the well-being and dignity of individuals in society.  Human  development as a human right has a direct nexus with the increase in  capabilities of human beings as also the range of things they can do.  Human development is eventually in the interest of society and on a  larger canvas, it is in the national interest also. As a human right,  human development finds its echo in several areas as for example in  excellence in professional education, be it the study of medicine,  engineering or law. Progress and development in these fields will not  only give a boost to the economy of the country but also result in  better living conditions for the people of India.  

In T.M.A. Pai Foundation’s case (supra), this Court called upon  the private unaided institutions including the minority educational  institutions to fulfill the hopes and aspirations of the meritorious  students and in particular the meritorious socially and educationally  backward students.  Higher education as contained in Article 26 must be  based on merit.  The competing human rights of the minorities vis-Ã -vis  any other citizen, thus, requires a delicate balance.   Furthermore Article 51A(j) enjoins a duty of every citizen of  India inter alia to strive towards excellence in all spheres of  individual and collective activity so that the nation constantly rises  to higher levels of excellence and achievement.

In T.M.A Pai Foundation (supra), this Court in no uncertain terms  said that merit would be the first criteria for imparting professional

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education.  It must be given full effect with the aid of these  additional reasons. RECOGNITION/AFFILIATION :         Although the minorities have a right to establish institutions of  their own choice, they admittedly do not have any right of recognition  or affiliation for the said purpose.  They must fulfill the  requirements of law as also other conditions which may reasonably be  fixed by the appropriate Government or the university.           In T.M.A. Pai Foundation (supra) it was laid down that certain  conditions can be imposed as regards admission of students, mode of  holding examinations at the time of grant of recognition.  A question  has been raised by Mr. Nariman that once recognition has been granted,  no further restriction can be imposed.  We do not agree.  There exist  some institutions in this country which are more than a century old.   It would be too much to say that only because an institution receives  recognition/affiliation at a distant point of time the appropriate  Government is denuded of its power to lay down any law in imposing any  fresh condition despite the need of change owing to passage of time.   Furthermore, the Parliament or the State Legislatures are not denuded  of its power having regard to restrictions that may satisfy the test of  clause (6) of Article 19 of the Constitution of India or regulations in  terms of Article 30 depending upon the national interest/public  interest and other relevant factors.   We, however, wish to emphasise  that the State/University while granting recognition or the affiliation  cannot impose any condition in furtherance of its own needs or in  pursuit of the Directive Principles of State Policy. AN  EPILOGUE:         It is unfortunate that a Constitution Bench had to be constituted  for interpreting a 11-Judge Bench judgment.  Probably in judicial  history of India, this has been done for the first time.  It is equally  unfortunate that all of us cannot agree on all the points, despite the  fact that the matter involves construction of a judgment.  In the name  of interpretation we have to some extent, however little it may be re- written the judgment.  We have laid down new laws and issued directions  purported to be in terms of Article 142 of the Constitution.  We have  interpreted T.M.A. Pai; but we have also made endeavours to give effect  to it.  In some areas it was possible; in some other it was not.         We have refrained ourselves from expressing any opinion at this  stage as to whether grant of settlement of Government land at a throw- away price or allowing the private institutions to avail the facilities  of Government hospitals would amount to grant of aid or not.  We have  also not expressed any opinion on cross-subsidy.          The superior courts in India exist for interpretation of  Constitution or interpretation of statutes.  They cannot evolve a fool- proof system on the basis of affidavits filed by the parties or upon  hearing their counsel.  Certain details of vexing problems on the basis  of the interpretation given by this Court must be undertaken by the  statutory bodies which have the requisite expertise.  It is expected  that statutory bodies would be able to perform their duties for which  they have been established.  The doors of the Court should not be  knocked every time, if a problem arises in implementation of the  judgment, however slight it may be.   The Court has its own  limitations.  The problems which can be sorted at the ground level by  holding consultations should not be allowed to be brought to the Court.   It is, in that view of the matter, we have thought it fit to direct  setting up of committees for the aforementioned purposes.  In the present constitutional set up having regard to Entry 66,  List I of the Constitution of India, the legislative power of the State  may be very limited; the extent whereof may have to be determined in  appropriate cases.  But the stake of the State in such matters is also  not minimal.  The State has to evolve its own policies generating the  source of employment.          We have come across several schemes framed by the States in terms  whereof incentives are being given to the private industries for  generating employment or reduction in taxes is being proposed if

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graduates are employed.  The respective States, therefore, must apply  its mind while granting essentiality certificate inasmuch as the human  resource development problems will have to be faced by it.  In evolving  a sound policy decision in this behalf, the statutory bodies shall also  have to lend their ears to the respective State Governments while  granting permission for establishment of the professional educational  institutions.  The Human Resource Development Ministry of the Central  Government should also play its role.          The I.As. for clarification are, thus, disposed of.  The writ  petitions may now be placed before appropriate Benches for disposal.   In the facts and circumstances of this case, there shall be no order as  to costs.

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