MEDICAL COLLEGE VELLORE ASSOCIATION versus UNION OF INDIA AND OTHERS
[2020] 5 S.C.R. 516, Supreme Court of India, 2020
Outcome: Disposed off
Segment: Ratio
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CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION
v.
UNION OF INDIA AND OTHERS
(Transferred Case (Civil) No. 98 of 2012)
APRIL 29, 2020
[ARUN MISHRA, VINEET SARAN AND M. R. SHAH, JJ.]
Education/Educational Institutions – National Eligibility-cum-
Entrance Test (NEET) if violates fundamental rights guaranteed
u/Arts.19(1)(g), 25, 26, 29(1) & 30 – Notifications issued by Medical
Council of India (MCI) and Dental Council of India (DCI) – NEET
introduced for admission to MBBS course, Post- graduate course,
BDS, MDS – Initially notifications were quashed – However, the
said judgment was later recalled – During the pendency of petitions,
s.10D, 1956 Act providing for uniform entrance examination for
undergraduate and post-graduate level has come into force – s.10D,
1948 Act containing similar provisions w.r.t uniform entrance
examination has also been inserted – Held: Notifications questioned
and the amendment made to s.10D as introduced in the 1956 Act
and regulations as amended by MCI and similar provisions inserted
in 1948 Act & Regulations, cannot be said to be violating the rights
of the unaided/aided minority to administer institutions
u/Arts.19(1)(g) & 30 r/w Arts. 25, 26 & 29(1) by prescribing the
uniform examination of NEET for admissions in the graduate and
postgraduate professional courses of medical as well as dental
science – Provisions of the Act and regulation cannot be said to be
ultra vires the rights
guaranteed u/Art. 30(1) r/w Arts. 19(1)(g), 14,
25, 26 & 29(1) – It is open to provide regulatory mechanism for
admission for such courses as held in T.M.A. Pai Foundation – A
decision has been taken to regulate admission in professional
colleges on national basis to wipe out corruption and various evils
from the system – There cannot be any exemption, otherwise, there
would be no end to such claims and multiple examinations – Minority
and private institutions have to admit students based on merit in the
permissible category, based on NEET as per procedure prescribed
under the Act and Regulations – Rights u/Art.19(1)(g) are not
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absolute and are subject to reasonable restriction in the interest of
student’s community to promote merit, recognition of excellence, and
to curb the malpractices – Uniform Entrance Test qualifies the test
of proportionality and is reasonable – Constitution of India – Arts.
14, 19(1)(g), 19(6), 25, 26 & 29(1), 30, 46, 47, 51A(j) – Indian
Medical Council Act, 1956 – s.10D – Regulation on Graduate
Medical Education, 1997 – Dentists Act, 1948 – s.10D – Post
Graduate Medical Education Regulations, 2000 – Regulations on
Graduate Medical Education (Amendment) 2010 (Part II) – Post-
Graduate Medical Education (Amendment) Regulation, 2010 (Part-
II) – Regulations on Graduate Medical Education (Amendment)
2017 – Maharashtra Unaided Private Professional Educational
Institution (Regulation of Admissions & Fees) Act, 2015.
Disposing of the matters, the Court
HELD: 1.1 The notifications, which are questioned in the
matters and the amendment made to Section 10D as introduced
in the Act of 1956 and regulations as amended by the MCI and
similar provisions inserted in the Dentists Act & Regulations,
cannot be said to be taking away the rights of the unaided minority
institutions or private institutions of making admission in any
manner as it is permissible to provide regulatory mechanism at
the national level and the entrance test applies even to All India
Institute of Medical Science (AIIMS) – the most reputed Institute
of India. It is open to provide the regulatory
mechanism for
admission for such courses as held in T.M.A. Pai Foundation the
qualification and conditions of eligibility in the interest of academic
standards can be provided, and there could be regulatory
measures for  ensuring educational standards and maintaining
excellence in the matter of professional institution. Thus, the
decision in T.M.A. Pai Foundation  rendered by 11-Judge Bench
is juxtaposedto the submission raised on behalf of petitioners. In
P.A. Inamdar, the Court laid down the triple test of a fair,
transparent and non-exploitative mechanism and if the admission
procedure adopted by private institution does not satisfy all or
any of the triple tests, it held that the admission procedure can
be taken over by the State substituting its process. This aspect
was gauged in Modern Dental College and Research Centre in a
broader perspective considering prevailing situation of capitation
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fee and education becoming saleable commodity. A decision has
been taken to regulate admission in professional colleges on
national basis so as to wipe out the corruption and various evils
from the system. Even, the NEET has been made applicable to
such premier institution like All India Institute of Medical
Sciences (AIIMS) and so many others. The decision has been
taken considering the overall national scenario, there cannot be
any exemption, otherwise, there would be no end to such claims
and multiple examinations. It would not be possible to eradicate
evils. Overall derogatory situation which prevailed before
introduction of NEET cannot be restored. Still, there are several
loopholes, which are to be plugged in the admission procedure.
Unscrupulous practices are being adopted by private colleges of
not admitting students sponsored by centralised counselling
committee.The minority and private institutions have to admit
students based on merit in the permissible category, based on
NEET as per procedure prescribed under the Act and
Regulations. [Paras 35, 37 and 38][610-G-H; 611-A-F]
T.M.A. Pai Foundation and Ors. v. State of Karnataka
and Ors. (2002) 8 SCC 481 : [2002] 3 Suppl. SCR
587; P. A. Inamdar and Ors. v. State of Maharashtra
and Ors. (2005) 6 SCC 537 : [2005] 2 Suppl. SCR
603; Modern Dental College and Research Centre and
Ors. v. State of Madhya Pradesh and Ors. (2016) 7
SCC 353 : [2016] 3 SCR 579 –
followed.
1.2 The notifications issued, amendment made to Section
10D of the Act of 1956 and regulations framed by MCI and similar
provisions for dental courses providing for NEET cannot be said
to be impinging upon the rights of the minority and the provisions
of the Act and regulations framed by MCI under the Act of 1956,
in DCI Act and regulations are required to be observed by each
and every institution. The regulatory measures under the Act/
Regulations cannot be said to be averse to the interest of such
institutions, and such reasonable measurescan be carved out.
They do not impinge upon the rights of institutions guaranteed
under Articles 14, 19(1)(g), 25 and 30 of the Constitution of India.
There is no reason why conditions for the welfare of students
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and teachers should not be made, but any law or rule or regulation
that would put the educational institutions run by the minorities
at a disadvantage when compared to the institutions run by the
others will have to be struck down. The law of the land includes
rules and regulations that must apply equally to the majority as
well as minority institutions. The minority institutions must be
allowed to do what non-minority is permitted to do. They have to
comply with the conditions of recognition, which cannot be such
as to whittle down the right guaranteed under Article 30 of the
Constitution. [Paras 41, 42][614-B-C, F-H]
1.3 The NEET has been prescribed by the Legislature in
the larger public interest that has to prevail. The provisions found
to be reasonable conditions of recognition/affiliation are binding
for the very existence of all such institution whether they are run
by majority or minority failing which they cannot exists and impart
education. The conditions are reasonable and cannot be said to
be taking away any of the constitutional rights of minority
institutions, they are reasonable, fair and intended to bring
transparency in the professional education imparted by
institutions. They are applicable for all institutions alike minorities
are not placed on a disadvantageous platform. There is no doubt
as to the concept of limited Government and least interference
is welcomed, but in which field and to what extent balancing with
the larger public
and national interest is required. The individual
autonomy, rights, and obligations are to be free from official
interference except where the rational basis for intrusion exists.
The Constitution provides a limitation on the power of the State
to interfere with life, liberty, and rights, however, the concept of
limited government cannot be extended to a level when it defeats
the very national interest. The maladies with which professional
education suffers in this country are writ large. The regulatory
framework created by the MCI/ DCI is concomitant of conditions,
affiliation and recognition, and providing central examination in
the form of NEET cannot be said to be violative of the rights
under Articles 19(1)(g) and 30. The regulatory framework is not
restrictive, but caters to the effective enjoyment of the rights
conferred under the aforesaid provisions. The provisions qualify
the doctrine of proportionality considered in Modern Dental
College and Research Centre. What has been held therein for State
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level examination holds good for NEET also. The prescription of
NEET is definitely in order to improve the medical education,
co-related to the improvement of public health, thus, it is a step-
in furtherance of the duty of the State enshrined in the Directive
Principles of the State Policy contained in Article 47 of the
Constitution of India. Similarly, Article 46 aims at promotion of
educational and economic interests of Scheduled Castes,
Scheduled Tribes, and other weaker sections. By prescription of
one equivalence examination of NEET, the interest of their merit
is also equally protected and its aims of preventing various
malpractices, which crept into system and prevent economic
exploitation by selling seats with which maladythe professional
medical education system suffered. Article 51A(j) deals with the
duty to strive towards excellence in all spheres of individual and
collective activity so that the nation constantly rises to higher
levels of endeavour and achievement. For that purpose,
recognition of merit is necessary, and one has to be given a full
opportunity in pursuit of his/her aim. The prescription of NEET
is to provide equal opportunity and level launching platform to
an individual to perform his duty as enshrined under Article 51A(j).
Thus, there is no violation of the aforesaid provisions as argued
by appellants, rather action is in furtherance of the constitutional
aims and directions to achieve
intendment of Article 51A(j) and
is in the national interest. [Paras 46-48][618-C-G; 619-A-E]
1.4 In view of the law laid down in T.M.A. Pai Foundation, it
is apparent that NEET/common entrance test is a devise to
standardise and computing equivalence between different kinds
of qualifications. It does not interfere with the rights of the unaided
minority institutions as it has been imposed in national interest
considering the malpractices of granting illegal admission by
virtually selling the seats in derogation to rights of meritorious
students. The charitable activity of education became a saleable
commodity and prerogative of wealthy persons and poor students
were forced to get education funded from Banks making it difficult
for them to come out of tentacular octave of interest. They are
exploited in bud before they bloom into flower. The ill-reputation
developed by MCI forced to change its entire structure. The
national interest requires further improvement in the system to
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eradicate evils from the system. The situation is still grim and
require to be dealt with firm hand and steely determination. Thus,
it is apparent that the provisions in question which have been
incorporated in the Act relating to Medical/Dental education, the
Government, MCI and DCI cannot be said to be an invasion of
the fundamental rights. The intendment is to ensure fairness in
the selection, recognition of merit, and the interests of the
students. In the national interest, educational institutions are
basically for a charitable purpose. By and large, at present
education is devoid of its real character of charity, it has become
a commodity. To weed out evils from the system, which were
eating away fairness in admission process, defeating merit and
aspiration of the common incumbent with no means, the State
has the right to frame regulatory regime for aided/ unaided
minority/ private institutions as mandated by Directives
Principles, Articles 14 and 21 of the Constitution. The first step
has been taken to weed out the evils from the system, and it
would not be in the national interest to step back considering the
overall scenario. If the old system is reverted to, posterity is not
going to forgive us. Still, complaints are galore that merit is being
ignored by private institutions; there is still a flood of litigation.
It seems that unfettered by a large number of regulatory
measures, unscrupulous methods and malpractices are yet being
adopted.
Building the nation is the main aspect of education, which
could not be ignored and overlooked. They have to cater to
national interest first, then their interest, more so, when such
conditions can be prescribed for recognition, particularly in the
matter of professional education. The learned counsel argued
that it is open to some of the institutions to impose higher
standards of merit. Firstly, conditions of affiliation are binding
apart from that, it is found that when it comes to national standards
and the objects sought to be achieved by NEET, to conduct
individual examinations by some institutions cannot be permitted.
The system is not yet out of clutches of unscrupulous devices
and dubious means are adopted to defeat merit, the interest of
education would further suffer and very purpose of centralised
examination would be defeated. It is not possible to prescribe
further examination over and above NEET that cannot be said to
be workable, no exemption can be granted from NEET,
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considering the objective with which it has been introduced. The
uniform Entrance Examination cannot be said to be unreasonable
regulatory framework. Considering the terms and conditionsfor
affiliation and recognition for professional medical and such other
professional courses are binding, and no relaxation can be
permitted in the conditions. [Paras 53, 55 and 57][621-C-E;
G-H; 622-A-D, F-H; 623-A]
1.5 Rights under Articles 19(1)(g)and 30 read with Articles
25, 26 and 29(1) of the Constitution of India do not come in the
way of securing transparency and recognition of merits in the
matter of admissions. It is open to regulating the course of study,
qualifications for ensuring educational standards. It is open to
imposing reasonable restrictions in the national and public
interest. The rights under Article 19(1)(g) are not absolute and
are subject to reasonable restriction in the interest of the student’s
community to promote merit, recognition of excellence, and to
curb the malpractices. Uniform Entrance Test qualifies the test
of proportionality and is reasonable. The same is intended to
check several maladies which crept into medical education, to
prevent capitation fee by admitting students which are lower in
merit and to prevent exploitation, profiteering, and
commercialisation of education. The institution has to be a capable
vehicle of education. The minority institutions are equally bound
to comply with the
conditions imposed under the relevant Acts
and Regulations to enjoy affiliation and recognition, which apply
to all institutions.In case they have to impart education, they are
bound to comply with the conditions which are equally applicable
to all. The regulations are necessary, and they are not divisive or
disintegrative. Such regulatory measures enable institutions to
administer them efficiently. There is no right given to
maladminister the education derogatory to the national interest.
The quality of medical education is imperative to sub-serve the
national interest, and the merit cannot be compromised. The
Government has the right for providing regulatory measures that
are in the national interest, more so in view of Article 19(6) of
the Constitution of India. The rights of the religious or linguistic
minorities under Article 30 are not in conflict with other parts of
the Constitution. Balancing the rights is constitutional intendment
in the national and more enormous public interest. Regulatory
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measures cannot be said to be exceedingthe concept of limited
governance. The regulatory measures in question are for the
improvement of the public health and is a step, in furtherance of
the directive principles enshrined in Articles47 and 51(A)(j) and
enable the individual by providing full opportunity in pursuance
of his objective to excel in his pursuit. The rights to administer
an institution under Article 30 of the Constitution are not above
the law and other Constitutional provisions. Reasonable
regulatory measures can be provided without violating such rights
available under Article 30 of the Constitution to administer an
institution. Professional educational institutions constitute a class
by themselves. Specific measures to make the administration of
such institutions transparent can be imposed. The rights available
under Article 30 are not violated by provisions carved out in
Section 10D of the MCI Act and the Dentists Act and Regulations
framed by MCI/DCI.The regulatory measures are intended for
the proper functioning of institutions and to ensure that the
standard of education is maintained and does not fall low under
the guise of an exclusive right of management to the extent of
maladministration. The regulatory measures by prescribing
NEET is to bring the education within the realm of charity which
character it has lost. It intends to weed out evils from the system
and various malpractices which decayed the system. The
regulatory measures
in no way interfere with the rights to
administer the institution by the religious or linguistic minorities.
Resultantly, there is no violation of the rights of the unaided/
aided minority to administer institutions under Articles19 (1)(g)
and 30 read with Articles 25, 26 and 29(1) of the Constitution of
India by prescribing the uniform examination of NEET for
admissions in the graduate and postgraduate professional courses
of medical as well as dental science. The provisions of the Act
and regulation cannot be said to be ultra vires or taking away the
rights guaranteed under the Constitution of India under Article
30(1) read with Articles 19(1)(g), 14, 25, 26 and 29(1).
[Paras 58-60][623-B-H; 624-A-F]
Ahmedabad St. Xavier’s College Society and Anr. v. State
of Gujarat and Anr. (1974) 1 SCC 717 : [1975] 1 SCR
173; St. Stephen’s College v. University of Delhi (1992)
1 SCC 558 : [1991] 3 Suppl. SCR 121 – followed.
CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION
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Frank Anthony Public School Employees’ Association
v. Union of India and Others (1986) 4 SCC 707 : [1987]
1 SCR 238; Bihar State Madarasa Education Board,
Patna v. Madarasa Hanfia Arabic College, Jamalia and
Others (1990) 1 SCC 428 : [1989] 2 Suppl. SCR 399;
Brahmo Samaj Education Society v. State of West Bengal
(2004) 6 SCC 224 : [2004] 2 Suppl. SCR 214; Sindhi
Education Society and Anr. v. Chief Secretary,
Government of NCT of Delhi and Ors. (2010) 8 SCC
49 : [2010] 8 SCR 81; Secretary, Malankara Syrian
Catholic College v. T. Jose and Ors. (2007) 1 SCC 386
: [2006] 9 Suppl. SCR 644 – relied on.
Sankalp Charitable Trust and Anr. v. Union of India
and Ors. (2016) 7 SCC 487; Gobind v. State of Madhya
Pradesh and Anr. (1975) 2 SCC 148 : [1975] 3 SCR
946; K.S. Puttaswamy v. Union of India (2017) 10 SCC
1: [2017] 10 SCR 569; Islamic Academy of Education
and Ors. v. State of Karnataka and Ors. (2003) 6 SCC
697 : [2003] 2 Suppl. SCR 474; Christian Medical
College Vellore v. Union of India (2014) 2 SCC 305 :
[2013] 7 SCR 908; State of Madhya Pradesh v.
Jainarayan Chouksey and Ors. (2016) 9 SCC 412; State
of Maharashtra v. D.Y. Patil Vidyapeeth and Ors. (2016)
9 SCC 401; Dar-us-Salam Educational Trust and Ors.
v. Medical Council of India and Ors. (2017) 6 SCALE
320; Yatin kumar Jasubhai Patel and Ors. v. State of
Gujarat and Ors. (2019) 10 SCC 1 : [2019] 12 SCR
848; Re The Kerala Education Bill 1957 AIR 1958 SC
956 : [1959]
SCR 995; Rev. Sidhajbhai Sabhai and
Ors. v. State of Bombay and Anr. [1963] 3 SCR 837;
Rev. Father W. Proost and Ors. v. State of Bihar and
Ors. AIR 1969 SC 465 : [1969] 2 SCR 73; The Gandhi
Faiz-e-am College, Shahjahanpur v. University of Agra
and Anr. (1975) 2 SCC 283 : [1975] 3 SCR 810; Sk.
Md. Rafique v. Managing Committee, Contai Rahamania
High Madrasah and Ors. (2020) 1 SCALE 345;
Chandana Das (Malakar) v. State of West Bengal and
Ors. (2015) 12 SCC 140 : [2014] 13 SCR 796; Faculty
Association of All India Institute of Medical Sciences v.
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Union of India and Ors. (2013) 11 SCC 246 : [2014]
14 SCR 1634; Dr. Preeti Srivastava and Anr. v. State of
M.P. and Ors. (1999) 7 SCC 120 : [1999] 1 Suppl. SCR
249 – referred to.
Case Law Reference
(2016) 7 SCC 487
referred to
Para 15
[2016] 3 SCR 579
followed
Para 15
[2002] 3 Suppl. SCR 587
followed
Para 15
[1975] 3 SCR 946
referred to
Para 15
[2017] 10 SCR 569
referred to
Para 15
[2003] 2 Suppl. SCR 474
referred to
Para 15
[2005] 2 Suppl. SCR 603
followed
Para 15
(2016) 7 SCC 487
referred to
Para 17
[2013] 7 SCR 908
referred to
Para 17
(2016) 9 SCC 412
referred to
Para 17
(2016) 9 SCC 401
referred to
Para 17
(2017) 6 SCALE 320
referred to
Para 17
[2019] 12 SCR 848
referred to
Para 17
[1959] SCR 995
referred to
Para 20
[1963] 3 SCR 837
referred to
Para 21
[1969] 2 SCR 73
referred to
Para 21
[1975] 1 SCR 173
followed
Para 22
[1975] 3 SCR 810
referred to
Para 23
[1987] 1 SCR 238
relied on
Para 24
[1989] 2 Suppl. SCR 399
relied on
Para 25
[1991] 3 Suppl. SCR 121
followed
Para 26
(2020) 1 SCALE 345
referred to
Para 26
[2004] 2 Suppl. SCR 214
relied on
Para 28
[2010] 8 SCR 81
relied on
Para 30
CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION
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[2014] 13 SCR 796
referred to
Para 30
[2014] 14 SCR 1634
referred to
Para 39
[1999] 1 Suppl. SCR 249
referred to
Para 39
[2017] 10 SCR 569
referred to
Para 45
[2006] 9 Suppl. SCR 644
relied on
Para 49
CIVIL ORIGINAL JURISDICTION: Transferred Case (Civil)
No. 98 of 2012.
From the Judgment and Order dated 10.10.2012 of this Hon'ble
Court passed in Transfer Petition (Civil) No. 365 of 2012.
With
Transferred Case (Civil) Nos. 102, 99, 104, 105, 107, 108, 119,
120, 125-127, 110, 111, 112, 113-114, 115-116, 117-118, 123-124, 128-
130, 131, 132-134, 138-139, 142, 144, 145 of 2012, 5, 2, 3, 4, 7, 1, 8, 9, 10,
11, 12-13, 16, 14-15, 23-24, 19, 20, 21-22, 17, 18, 25, 28-29, 48, 49, 39, 40,
42, 41, 43, 44, 46, 45, 47, 37-38, 30, 31-32, 33-36, 59, 60, 61, 62, 63-65,
66-69, 70-71, 72, 73, 75, 76, 108 of 2013, 25 of 2019, Writ Petition. (Civil)
Nos. 443, 750 of 2016, Special Leave Petition.(C) No. 28223 of 2016.
Vikas Singh, R. Venkataramani, Jayanth Muthraj, Sr. Advs., Gaurav
Sharma, Dhawal Mohan, Prateek Bhatia, Ms. Deepeika Kalia, V.G.
Pragasam, Prabu Ramasubramanian, S. Manuraj, Yashraj Singh Bundela,
Praveen Vignesh, M. Yogesh Kanna, S Raja Rajeshwaran, Karthik
Rajendran, Ms. Uma Prasuna Bachu, Rohit Rathi, Ms. Sheena Taqui,
Ms. Bina Gupta, Kshitij Vaibhav, K.S.T. Thambi Pillai, Hitesh Kumar
Sharma, Akhileshwar Jha, Ms. Miria Jasmin, Samrat Shinde, Sachin Patil,
Anil Kumar Mishra, Idrish Mohammed, Supantha Sinha, A.K. Mishra,
G.N. Reddy, T. Vijaya Bhaskar Reddy, A.P. Mayee, A. Rajarajan, Rupesh
Kumar, Mrs. Pankhuri Shrivastava, Rajeev Sharma, Ms. Neelam Sharma,
V.N. Raghupathy, Manendra Pal Gupta, Md. Apzal Ansari, Amol Chitale,
Ms. Pragya Baghel, P.V. Dinesh, Ms. Sindhu T.P., Bineesh K., Mukund
P. Unny, Ashwini Kumar Singh, M/s. India Law, Mahesh Thakur,
Ms. Sheffali  Chaudhary,  Mrs. Vipasha Singh, Dr. Sushil Balwada,
Ramesh Allanki, Syed Ahmad Naqvi, Ms. Savita Devi, N.V.R.S.S.S.
Vara Prasad, Ms. Aruna Gupta, Ganni Krishna, R. Radha Krishna,
Ms. Shilp Gupta, C.S.N. Mohan Rao, Anil Kumar Mishra-I, Shivaji M.
Jadhav, Ashwarya Sinha, Ravindra Keshavrao Adsure, Mrs. Bina Gupta,
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Dharmendra Kumar Sinha, Ramesh Babu M.R., Rakesh K. Sharma,
Dushyant Parashar, Lakshmi Raman Singh, Ms. Udita Singh, Vivek Singh,
A. Venayagam Balan, Alok Shukla, M/s. Arputham Aruna and Co., E.R.
Kumar, Krishna Srinivasan, Ms. Geeti Aara, Udayaditya Banerjee,
Sudipto Sircar, Bhav Ratab, Ms. Tanya Chaudhry, Raghav Bansal,
Ms. Nitika Pandey, M/s. Parekh & Co., Ambhoj Kumar Sinha, Amit
Anand Tiwari, Ms. Shakun Sharma, K.K. Singh, Ms. Mary Mitzy, Ms.
E.R. Sumathy, M/s. Lawyer’s Knit & Co., K.K. Mani, Rameshwar
Prasad Goyal, Y. Raja Gopala Rao, Vipin Kumar Jai, Ms. Binu Tamta,
Ms. Rekha Pandey, Gurmeet Singh Makker, Ms. Suruchii Aggarwal,
M.Y. Deshmukh, Amit Kumar, Ms.Sushma Suri, T.C. Sharma, Prashant
Bhushan, Mrs. Vaijayanthi Girish, Ms. Pragati  Neekhra, Nishant
Ramakantrao Katneshwarkar, K.V. Vijayakumar, B. Balaji, Gopal Singh,
Kaushik  Poddar, R. Chandrachud, Ms. Hemantika Wahi, Ms. Astha
Tyagi, Ms. Farah Fathima, Advs. for the appearing parties.
The Judgment of the Court was delivered by
ARUN MISHRA, J.
1. Most of the cases have a chequered history.  Initially, petitioners
have questioned four notifications - two notifications dated 21.12.2010
issued by Medical Council of India (for short, ‘the MCI’) and other two
notifications dated 31.5.2012, issued by Dental Council of India (for short,
‘the DCI’). The MCI by virtue of Regulations on Graduate Medical
Education (Amendment) 2010, (Part II) notified by the Government of
India, amended theRegulationson
Graduate Medical Education,
1997.Similarly, the other notification issued by MCIcalled “Post-Graduate
Medical Education (Amendment) Regulation, 2010 (Part-II)” to amend
the Post Graduate Medical Education Regulations, 2000. The regulations
came into force on their publication in the Official Gazette. The other
two notifications dated 31.5.2012 issued by DCI were relating to admission
in the BDS and MDS courses.
2. The MCI issued notifications in exercise of power conferred
by Section 33 of the Indian Medical Council Act, 1956 (for short, ‘the
Act of 1956’). The amendments were made in the Regulation on Graduate
Medical Education, 1997. The change was made in Clause 5 in Chapter
II of the Regulations. Clause 5 provided for procedure for selection
thus:
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“6. In Chapter II, Clause 5 under the heading “Procedure for
selection to MBBS Course shall be as follows” shall be substituted
as under:
(i) There shall be a single eligibility-cum-entrance examination,
namely, ‘National Eligibility-cum-Entrance Test for admission to
MBBS course’ in each academic year. The overall
superintendence, direction, and control of the National Eligibility-
cum-Entrance Test shall vest with the Medical Council of India.
However, the Medical Council of India, with the previous approval
of the Central Government, shall select organisation(s) to conduct
‘National Eligibility-cum-Entrance Test for admission to MBBS
course.
(ii) In order to be eligible for admission to MBBS course for a
particular academic year, it shall be necessary for a candidate to
obtain minimum of 50% (fifty percent) marks in each paper of
National Eligibility-cum-Entrance Test held for the said academic
year. However, in respect of candidates belonging to the Scheduled
Castes, the Scheduled Tribes, and the Other Backward Classes,
the minimum percentage shall be 40% (forty percent) in each
paper, and in respect of candidates with locomotory disability of
lower limbs, the minimum percentage marks shall be 45% (forty-
five percent) in each paper of National Eligibility-cum-Entrance
Test:
Provided when sufficient number of candidates belonging to
respective categories fail to secure minimum marks as prescribed
in National
Eligibility-cum-Entrance Test in any academic year
for admission to MBBS course, the Central Government in
consultation with the Medical Council of India may at its discretion
lower the minimum marks required for admission to MBBS course
for candidates belonging to respective categories and marks so
lowered by the Central Government shall be applicable for the
said year only.
(iii) The reservation of seats in medical colleges for respective
categories shall be as per applicable laws prevailing in States/
Union Territories. An all India merit list as well as State-wise
merit list of the eligible candidates shall be prepared on the basis
of the marks obtained in National Eligibility-cum-Entrance Test
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and candidates shall be admitted to MBBS course from the said
lists only.
(iv) No candidate who has failed to obtain the minimum eligibility
marks as prescribed in sub-clause (ii) above shall be admitted to
MBBS course in the said academic year.
(v) All admissions to MBBS course within the respective categories
shall be based solely on marks obtained in the National Eligibility-
cum-Entrance Test.”
(emphasis supplied)
3. Similarly, amendments to the Post Graduate Medical Education
Regulations, 2000 were made. The relevant portion of the amendments
made are extracted hereunder:
 “No. MCI. 18(1)/2010-Med./49070. — In exercise of the powers
conferred by Section 33 of the Indian Medical Council Act, 1956
(102 of 1956), the Medical Council of India with the previous
approval of the Central Government hereby makes the following
regulations to further amend the ‘Postgraduate Medical Education
Regulations, 2000’, namely:
1. (i). These Regulations may be called ‘the Postgraduate Medical
Education (Amendment) Regulations, 2010 (Part II)’.
(ii) They shall come into force from the date of their publication
in the Official Gazette.
2. In the ‘Postgraduate Medical Education Regulations, 2000’,
the following additions/ modifications/ deletions/ substitutions, shall
be as indicated therein:
3. Clause 9 under the heading ‘SELECTION OF
POSTGRADUATE STUDENTS’ shall be substituted as under:
“9. Procedure for selection of candidate for Postgraduate
courses shall be as
follows:
(i) There shall be a single eligibility-cum-entrance examination,
namely, National Eligibility-cum-Entrance Test for admission
to Postgraduate Medical Courses in each academic year. The
overall superintendence, direction and control of National
Eligibility-cum-Entrance Test shall vest with Medical Council
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of India. However, the Medical Council of India, with the
previous approval of the Central Government shall select
organisation(s) to conduct National Eligibility-cum-Entrance
Test for admission to Postgraduate courses”’.”
4. Similar notifications were issued by DCI providing for procedure
for selection of candidates for MBBS Course and Post-graduate Course
and also for BDS and MDS.Thus, National Eligibility-cum-Entrance Test
(for short, ‘the NEET’) for admission to the MBBS course and the
Post-graduate course and similarly for BDS and MDS came to be
introduced. Now the statutory provisions underSection 10D of the Act
of 1956 providing for uniform entrance examination for undergraduate
and post-graduate level which came into force on 24.5.2016.  Section
10D is extracted hereunder:
“10D.Uniform entrance examination for undergraduate and
post-graduate level.—There shall be conducted a uniform
entrance examination to all medical educational institutions at the
undergraduate level and post-graduate level through such
designated authority in Hindi, English and such other languages
and in such manner as may be prescribed and the designated
authority shall ensure the conduct of uniform entrance examination
in the aforesaid manner:
Provided that notwithstanding any judgment or order of any
court, the provisions of this section shall not apply, in relation to
the uniform entrance examination at the undergraduate level for
the
academic year 2016-17 conducted in accordance with any
regulations made under this Act, in respect of the State
Government seats (whether in Government Medical College or in
a private Medical College) where such State has not opted for
such examination.”
(emphasis supplied)
Section 10D of the Dentists Act, 1948,containing similar provisions
with respect of uniform entrance examination hasalso been inserted,
same is extracted hereunder:
“10D. Uniform entrance examination for undergraduate and
post-graduate level.—There shall be conducted a uniform
entrance examination to all dental educational institutions at the
undergraduate level and post-graduate level through such
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designated authority in Hindi, English and such other languages
and in such manner as may be prescribed and the designated
authority shall ensure the conduct of uniform entrance examination
in the aforesaid manner:
Provided that notwithstanding any judgment or order of any
court, the provisions of this section shall not apply, in relation to
the uniform entrance examination at the undergraduate level for
the academic year 2016-17 conducted in accordance with any
regulations made under this Act, in respect of the State
Government seats (whether in Government Dental College or in
a private Dental College) where such State has not opted for
such examination.”
5. The Regulations on Graduate Medical Education, 1997 have
also been amended by Regulations on Graduate Medical Education
(Amendment) 2017. The admission to the medical course eligibility criteria
has been prescribed by amended Clause 4. Following has been substituted:
“3. In Clause 4, under the heading Admission to the Medical
Course-eligibility criteria, and in sub-clause 4 (1) & (1A), the
following shall be substituted:
4. Admission to the Medical Course-Eligibility Criteria: No
candidate shall be allowed to be admitted to the Medical Curriculum
proper of first Bachelor of Medicine and Bachelor of Surgery
course until he /she has qualified the NationalEligibility Entrance
Test, and he/she shall not be allowed to appear for the National
Eligibility-Cum-Entrance Test until:
(1) He/she shall complete
the age of 17 years on or before
31stDecember of the year of admission to the MBBS.
(1A) He/She has obtained a minimum of marks in National
Eligibility-Cum-Entrance Test as prescribed in Clause 5 of Chapter
II.”
(emphasis supplied)
In Chapter II, Clause 5 under the heading “Procedure for
selection to MBBS” has been substituted by MCI in 2017 as under:
“7. In Chapter-II, Clause 5 under the heading “Procedure for
selection to MBBS course shall be as follows” shall be substituted
as under:-
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“Procedure for selection to MBBS course shall be as
follows:”
(1) There shall be a uniform entrance examination to all medical
educational institutions at the undergraduate level namely ‘National
Eligibility-cum-Entrance Test for admission to MBBS course in
each academic year and shall be conducted under overall
supervision of the Ministry of Health & Family Welfare,
Government of India.
(2) The “designated authority” to conduct the ‘National Eligibility-
Cum- Entrance Test’ shall be the Central Board of Secondary
Education or any other body/organization so designated by the
Ministry of Health & Family Welfare, Government of India, in
consultation with the Medical Council of India.
(3) The language and manner of conducting the ‘National
Eligibility-Cum-Entrance Test’ shall be determined by the
“designated authority” in consultation with the Medical Council
of India and the Ministry of Health and Family Welfare,
Government of India.
(4) In order to be eligible for admission to MBBS Course for a
academic year, it shall be necessary for a candidate to obtain
minimum of marks at 50thpercentile in ‘National Eligibility-cum-
Entrance Test to MBBS course’ held for the said academic year.
However, in respect of candidates belonging to Scheduled Castes,
Scheduled Tribes, Other Backward Classes, the minimum marks
shall be at 40thpercentile. In respect of candidates with benchmark
disabilities specified under the Rights of
Persons with Disabilities
Act, 2016, in terms of Clause 4(3) above, the minimum marks
shall be at 45th percentile for General Category candidates and
40th percentile for SC/ST/OBC candidates. The percentile shall
be determined on the basis of highest marks secured in the All-
India common merit list for admission in ‘National Eligibility-cum-
Entrance Test for admission to MBBS course.
Provided when sufficient number of candidates in the respective
categories fail to secure minimum marks as prescribed in National
Eligibility-cum-Entrance Test held for any academic year for
admission to MBBS Course, the Central Government in
consultation with Medical Council of India may at its discretion
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lower the minimum marks required for admission to MBBS Course
for candidates belonging to respective categories and marks so
lowered by the Central Government shall be applicable for the
said academic year only.
(5) The reservation of seats in Medical Colleges for respective
categories shall be as per applicable laws prevailing in States/
Union Territories. An All India merit list as well as State/Union
Territory-wise merit list of the eligible candidates shall be prepared
on the basis of marks obtained in ‘National Eligibility-cum-Entrance
Test and candidates shall be admitted to MBBS course from the
said lists only.
(6) No candidate who has failed to obtain the minimum eligibility
marks as prescribed in Sub-clause (4) above shall be admitted to
MBBS course in the said academic year.
(7) No authority/institution shall admit any candidate to the MBBS
course in contravention of the criteria/procedure as laid down by
these Regulations and/or in violation of the judgments passed by
the Hon’ble Supreme Court in respect of admissions. Any candidate
admitted in contravention/violation of aforesaid shall be discharged
by the Council forthwith. The authority/institution which grants
admission to any student in contravention /violation of the
Regulations and/or the judgments passed by the Hon’ble Supreme
Court, shall also be liable to face such action as may be prescribed
by the Council, including surrender of seats equivalent to the extent
of such admission made
from its sanctioned intake capacity for
the succeeding academic year/years.
(8) All admission to MBBS course within the respective categories
shall be based solely on the marks obtained in the ‘National
Eligibility-Cum-Entrance Test.”
(emphasis supplied)
6. Initially, the matters filed in 2012-2013 were heard by a Bench
of three Judges, and the matters were decided vide judgment and order
dated 18.7.2013.  As per the majority opinion,the petitions were allowed.
The notifications issued by MCI and DCI providing for NEET were
quashed. However, the admissions, which were made, were not interfered
with. Review petitions were filed, which were entertained and were
ultimately allowed on 11.4.2016, and judgment dated 18.7.2013 was
recalled.
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7. In Writ Petition (C) No.443 of 2016, prayer has been made to
protect the rights of the petitioner-institutions guaranteed under Articles
14, 15, 25, 26 and 30 of the Constitution of India.In Writ Petition (C)
No.750 of 2016, prayer is made to direct the respondents to conduct
centralized counselling for admission to all Graduate Medical and Dental
Courses throughout the country. In Transferred Case (C) No.25 of 2019,
it is stated that vires of the provisions of Maharasthra Unaided Private
Professional Educational Institution (Regulation of Admissions & Fees)
Act, 2015, applying them to Unaided Private MinorityProfessional
Educational Institutions are bad in law.  In S.L.P. (C) No.28223 of 2016,
provisions have been questioned on the ground that they cannot take
away the rights guaranteed under Articles 19(1)(g) and 30 read with
Articles 25, 26 and 29(1) of the Constitution of India.
8. Initially, the questionswere raised that MCI and DCI could not
have introduced NEET as the same offends the fundamental rights
guaranteed under Article19(1)(g) of the Constitution of India and the
rights of religious and linguistic minorities to establish and administer
educational institutions of their choice as guaranteed under Article 30
Constitution of India. Thus, subordinate legislation couldnot have
overriding effect over the fundamental rights guaranteed under Articles
25, 26, 29(1), and 30 of the Constitution of India. Now
the amendment
made could not take away or abridge the aforesaid rights of minorities.
The right to admit students is one of the fundamental rights, thus, rider of
clearing NEET examination could not have been imposed.
9. It was urged on behalf of petitioners that the impugned
notifications violate the fundamental rights of an unaided minority
institution to “establish and administer educational institutions of their
choice” protected under Article 30 read with Articles 25 and 26 of the
Constitution of India, which includes the right to admit students of their
own choice. The doctrine of limited Government provides that a citizen’s
liberty and autonomy is the central notion of the Constitution of India
and there is an inherent limitation on the State’s involvement in matters
of admissions of students. The NEET prescribes no alternative to the
institution, impinges upon the fundamental rights of an unaided minority
institution to establish and administer educational institution of their choice.
10. It was furtherurged on behalf of petitioners that State has no
power to compel an unaided minority institution to admit students through
a single centralized national examination such as NEET. The unaided
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minority professional colleges have the fundamental rights to choose the
method and manner in which to admit its students, subject to satisfying
the triple test of having a fair, transparent, and non-exploitative process.
11. It was also argued on behalf of petitioners that they have a
time-tested admission procedure without any complaints. Their process
is fair and transparent, and they have a fundamental right to protect
autonomy and reputation by continuing to admit students using their
admission process. The NEET cannot be the only parameter to determine
the merit of a student. Some of the institutions are providing best medical
professional by having their procedure for admission. They have
fundamental rights under Articles 19(1)(g) and 30(1) of the Constitution
to conduct and manage the affairs of the institution. The State, while
imposing reasonable restrictions, can fix the threshold criterion of merit,
but cannot restrict the petitioners from having any additional criteria of
merit over and above the threshold fixed by the State. The restriction
violates the test of proportionality.
12. The petitioners have also referred to the existing
positionconcerning centralised examination for professional courses in
India and internationally,to hold entrance examination cannot be
compulsion, it has to be voluntarily. They have relied upon Common
Law Admission Test (CLAT) - a system of examination for admission in
the Law Colleges. Reference has also been
made to the admission
process followed in Indian Institute of Technology (IITs), National
Institute of Technology (NITs) and Indian Institute of Management
(IIMs). NEET is the first of its kind, both in India and globally, where all
institutions are compelled by the State to follow a single admission
procedure. Some of the institutions are having an excellent record. They
follow the gurukul tradition. With the introduction of NEET in 2016-17,
institutions have been compelled to admit students through NEET instead
of their method. Some of them have the All India Entrance Test. They
have their unique procedure of admission for MBBS as well as Post
Graduation. The system of examination of some of the institutions is
wider on All India Basis, and they test general ability also, whereas, in
NEET, evaluation is based on three subjects, namely, Physics, Biology,
and Chemistry. They have an elaborate procedure of the assessment,
and they do not admit students only based on their theoretical knowledge.
Some of them are the best medical educational institutions in the country.
There is not even a single allegation of maladministration against some
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of the reputed institutions. The principles, which govern the selection,
are eligibility, suitability, and distributive justice. The selection of candidates
is an important factor to the medical colleges to suit their requirements
in a particular field.
13. There are various issues which have arisen according to the
admission given for post-graduate examination after the introduction of
NEET. Now, in some of the specialised institutions, they are not getting
good doctors to take care of patients, for example, in the Oncology
Department. Some of the candidates are not able to bear the burden of
the procedure and have expressed their inability to go with very sick
patients. Some of them were not able to undertake procedures in a sterile
manner to avoid infections. Similar is the position in other super-speciality
departments. There are complaints of lack of clinical competence among
students admitted to speciality courses like general medicine.
14. The petitioners further submitted that they have a fundamental
right to admit students of their own choice under Article 30 of the
Constitution. It is submitted that the admission procedure adopted by
them passes the triple test, i.e., fair, transparent, and non-exploitative.
Various orders were passed by this Court recognising fair method adopted
in individual institutions while admitting students through their admission
procedure as apparent from interim orders passed in
the years 1993,
1994, 1995, and 1998.
15. This Court on 28.4.2016 passed an order in Sankalp
Charitable Trust and Anr. v. Union of India and Ors., (Writ Petition
(C) No.261 of 2016), in which it was clarified that order passed in the
said matter shall not affect the hearing of the petitions. Most of petitions
remained pending after recall of the order earlier passed by this Court.As
per appellants, the ratio laid down in Modern Dental College and
Research Centre and Ors. v. State of Madhya Pradesh and Ors.,
(2016) 7 SCC 353, is not applicable. While deciding the said case, this
Court did not deal with the rights of unaided minority institutions. A Division
Bench of Madras High Court held that the procedure of admission of
some of the institutions is fair, transparent and non-exploitative. Reliance
has been placed on the T.M.A. Pai Foundation and Ors. v. State of
Karnataka and Ors., (2002) 8 SCC 481 to contend that State have
minimal interference and if possible, to be made only to maintain academic
standards. The right to admit students is one of the fundamental rights
recognized by this Court. The challenge in Modern Dental College
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and Research Centre (supra) was to the State level examination, i.e.,
the Common Entrance Test (CET). The holding of NEET would not be
in the interest of the academic standard of premier medical institutions
in the country. The change in admission procedure of students would
result in a sharp decline in the current standards of excellence in education
maintained at the institution, that would not be in public interest. The
admission procedure followed by petitioners is head and shoulders above
the NEET. The concept of limited government has also been relied upon
by referring to the decisions in Gobind v. State of Madhya Pradesh
and Anr., (1975) 2 SCC 148 and K.S. Puttaswamy v. Union of India,
(2017) 10 SCC 1.  Reliance has also been placed on the Islamic Academy
of Education and Ors. v. State of Karnataka and Ors., (2003) 6 SCC
697 and P.A. Inamdar and Ors. v. State of Maharashtra and Ors.,
(2005) 6 SCC 537.
16. It was argued that provisions of the MCI and DCI Acts and
regulations which have been amended during the pendency of the
petitions cannot take away the right of the institutions to admit their
students under Article 30 of the Constitution of India. Thus, the prescription
of NEET cannot be said to be permissible for the institutions in question.
17. On behalf of respondents, reliance has been placed on Sankalp
Charitable Trust and Anr. v. Union of India and Ors., (2016) 7 SCC
487, Modern Dental College and Research Centre (supra) and P.A.
Inamdar
(supra). It was also argued that Section 10D has been inserted
in the Act of 1956 it provides that there shall be a uniform common
entrance conducted by the designated authority. The main reasoning of
this Court in Christian Medical College Vellore v. Union of India,
(2014) 2 SCC 305, which decision has been recalled, was that uniform
common entrance examination could not be introduced by way of
subordinate legislation and under the Act of 1956 and MCI had no power
to conduct the said examination. After the introduction of Section 10D,
both the said lacunas have been plugged. The introduction of NEET is
constitutionally valid. In Modern Dental College and Research Centre
(supra), the Court considered the question of conduct of examination by
private medical colleges in the State of Madhya Pradesh for admitting
students in their colleges. In State of Madhya Pradesh v.
JainarayanChouksey and Ors., (2016) 9 SCC 412, while deciding the
contempt petition it was observed that judgment dated 2.5.2016 passed
in the case of Modern Dental College and Research Centre
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(supra),held that admission should be made through a centralised
procedure to be conducted by the State Government. The Court again in
the State of Maharashtra v. D.Y. Patil Vidyapeeth and Ors., (2016) 9
SCC 401, decided on 28.9.2016 reiterated that the decision in Modern
Dental College and Research Centre (supra) makes it unequivocally
clear that centralised counselling is an adjunct and part of the uniform
common entrance test. The notifications were also challenged by minority
institutions, deemed Universities, and other private institutions by filing
writ petitions in this Court. The Court in the judgment dated 9.5.2017 in
Dar-us-Salam Educational Trust and Ors. v. Medical Council of
India and Ors., (Writ Petition (C) No.267 of 2017), observed that
common counselling did not in any manner affect the right of minority
institutions to admit students of their minority community. As such, their
right to admit students of their community was fully protected. The
institutions were entitled to fill students of minority quota in their respective
medical colleges. NEET is a qualifying examination to determine merit
and also ensure fair procedure and equality of opportunity that most
meritorious candidates get admitted in the medicine and dental courses.
Reliance has been placed on YatinkumarJasubhai Patel and Ors. v.
State of Gujarat and Ors., (2019) 10 SCC 1, in which the Court
considered the question of institutional
preference/reservation after
introduction of NEET, and observed that introduction of NEET did not
affect 50% State quota seats in PG medicine course. It may be filled
based on institutional reservation.
18. The primary issue is whether by providing centralised
examination system – NEET for admission to MBBS, PG, BDS and
MDS by virtue of the provisions made in the Act and regulations, there
is violation of fundamental rights guaranteed under Articles 19(1)(g), 25,
26, 29(1) and 30 of the Constitution of India.
19. We first advert to take note that various decisions rendered
by this Court in respect of the right of minority as stated under Article 30
of the Constitution of India.
20. In ReTheKerala Education Bill, 1957, AIR 1958 SC 956,
question arose concerning right of the Government to prescribe
qualification to be possessed by the incumbents for appointment as
teachers in aided or recognized schools. The State Public Service
Commission was empowered to select candidates for appointment as
teachers in Government and aided schools. The Court opined that minority
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cannot ask for the aid or recognition for an educational institution without
competent teachers and fair standards. The choice does not necessarily
militate against the claim of the State to insist on reasonable regulations
to ensure the excellence of the institutions to be aided or even recognized.
The Court held thus:
“(29) Their grievances are thus stated: The gist of the right of
administration of a school is the power of appointment, control,
and dismissal of teachers and other staff. But under the said Bill
such power of management is practically taken away. Thus the
manager must submit annual statements (Cl. 5). The fixed assets
of the aided schools are frozen and cannot be dealt with except
with the permission of the authorised officer (Cl. 6). No educational
agency of an aided school can appoint a manager of its choice
and the manager is completely under the control of the authorised
officer, for he must keep accounts in the manner he is told to do
and to give periodical inspection of them and on the closure of the
school the accounts must be made over to the authorised officer
(Cl. 7). All fees etc. collected will have to be made over to the
Government (Cl. 8(3)). Government will take up the task of paying
the teachers and the non-teaching staff (Cl. 9). Government will
prescribe the qualification of teachers (Cl. 10). The school
authorities cannot appoint a single teacher of their choice, but
must appoint persons out of the panel settled by the
Public Service
Commission (Cl. 11). The school authorities must provide amenities
to teachers and cannot dismiss, remove, reduce, or even suspend
a teacher without the previous sanction of the authorised officer
(Cl. 12). ……
(31) We are thus faced with a problem of considerable complexity
apparently difficult of solution. There is, on the one hand the minority
rights under Art. 30(1) to establish and administer educational
institutions of their choice and the duty of the Government to
promote education, there is, on the other side the obligation of the
State under Art. 45 to endeavour to introduce free and compulsory
education. We have to reconcile between these two conflicting
interests and to give effect to both if that is possible and bring
about a synthesis between the two. The directive principles cannot
ignore or override the fundamental rights but must, as we have
said, subserve the fundamental rights. We have already observed
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that Art. 30(1) gives two rights to the minorities, (1) to establish
and (2) to administer educational institutions of their choice. The
right to administer cannot obviously include the right to
maladminister. The minority cannot surely ask for aid or recognition
for an educational institution run by them in unhealthy surroundings,
without any competent teachers, possessing any semblance of
qualification, and which does not maintain even a fair standard of
teaching or which teaches matters subversive of the welfare of
the scholars. It stands to reason, then, that the constitutional right
to administer an educational institution of their choice does not
necessarily militate against the claim of the State to insist that in
order to grant aid the State may prescribe reasonable regulations
to ensure the excellence of the institutions to be aided. Learned
Attorney-General concedes that reasonable regulations may
certainly be imposed by the State as a condition for aid or even
for recognition......Clauses 6, 7, 9, 10, 11, 12, 14, 15, and 20 relate
to the management of aided schools. Some of these provisions,
e.g., 7, 10, 11(1), 12(1)(2)(3) and (5) may easily be regarded as
reasonable regulations or conditions for the grant of aid. Clauses
9, 11(2) and 12(4) are, however, objected to as going much beyond
the permissible limit. It is said that by taking over the collections
of fees etc., and by undertaking to pay the salaries
of the teachers
and other staff the Government is in reality confiscating the school
fund and taking away the prestige of the school, for none will
care for the school authority. Likewise Cl. 11 takes away an
obvious item of management, for the manager cannot appoint any
teacher at all except out of the panel to be prepared by the Public
Service Commission which, apart from the question of its power
of taking up such duties, may not be qualified at all to select
teachers who will be acceptable to religious denominations and in
particular sub-cl. (2) of that clause is objectionable for it thrusts
upon educational institutions of religious minorities teachers of
Scheduled Castes who may have no knowledge of the tenets of
their religion and maybe otherwise weak educationally. Power of
dismissal, removal, reduction in rank, or suspension is an index of
the right of management, and that is taken away by Cl. 12(4).
These are, no doubt, serious inroads on the right of administration
and appear perilously near violating that right. But considering
that those provisions are applicable to all educational institutions
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and that the impugned parts of Cls. 9, 11 and 12 are designed to
give protection and security to the illpaid teachers who are engaged
in rendering service to the nation and protect the backward classes,
we are prepared, as at present advised, to treat these clauses 9,
11(2) and 12(4) as permissible regulations which the State may
impose on the minorities as a condition for granting aid to their
educational institutions. We, however, find it impossible to support
Cls. 14 and 15 of the said Bill as mere Regulations. The provisions
of those clauses may be totally destructive of the rights under
Art. 30(1). It is true that the right to aid is not implicit in Art. 30(1)
but the provisions of those clauses, if submitted to on account of
their factual compulsion as condition of aid, may easily be violative
of Art. 30(1) of the Constitution. Learned Counsel for the State
of Kerala recognizes that Cls. 14 and 15 of the Bill may annihilate
the minority communities’ right to manage educational institutions
of their choice but submits that the validity of those clauses is not
the subjectmatter of question 2. But, as already explained, all newly
established schools seeking aid or recognition are, by Cl. 3(5),
made subject to all the provisions of the Act. Therefore, in a
discussion as to the constitutional validity of Cl. 3(5) a discussion
of the validity of the other clauses of the Bill becomes relevant,
not as and by way of a separate item but in determining the
validity
of the provisions of Cl. 3(5). In our opinion, sub-cl. 3 of Cl. 8 and
Cls. 9, 10, 11, 12 and 13 being merely regulatory do not offend
Art. 30(1), but the provisions of sub-cl. (5) of cl. 3 by making the
aided educational institutions subject to Cls. 14 and 15 as conditions
for the grant of aid do offend against Art. 30(1) of the Constitution.”
(emphasis supplied)
21. In Rev. SidhajbhaiSabhai and Ors. v. State of Bombay
and Anr., (1963) 3 SCR 837, the Court again considered the matter and
observed that educational institutions cater to the needs of the citizens
or section thereof.  Regulation made in the real interests of efficiency of
instruction, discipline, health, sanitation, morality, public order, and the
like may undoubtedly be imposed.  Such regulations are not restrictive
on the substance of the right, which is guaranteed, they secure the proper
functioning of the institution in the matter of education. It was also
observed that regulation must satisfy a dual test-the test of reasonableness
and that it is regulative of the educational character of the institution and
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is conducive to making the institution a capable vehicle of education for
the minority community or other persons who resort to it.  In Rev. Father
W. Proost and Ors. v. State of Bihar and Ors., AIR 1969 SC 465, the
Court observed thus:
“8. In our opinion, the width of Article 30(1) cannot be cut down
by introducing in it considerations on which Article 29(1) is based.
The latter article is a general protection which is given to minorities
to conserve their language, script, or culture. The former is a
special right to minorities to establish educational institutions of
their choice. This choice is not limited to institution seeking to
conserve language, script, or culture, and the choice is not taken
away if the minority community having established an educational
institution of its choice also admits members of other communities.
That is a circumstance irrelevant for the application of Article
30(1) since no such limitation is expressed and none can be implied.
The two articles create two separate rights, although it is possible
that they may meet in a given case.”
22. In Ahmedabad St. Xavier’s College Society and Anr. v.
State of Gujarat and Anr., (1974) 1 SCC 717, a college was run by the
minority. A Bench of 9-Judges of this Court considered the question
whether Sections 40 and 41 of the Gujarat University Act, 1949 violated
Section 30, which provided all colleges within the University area would
be governed by
the statutes of the University which may provide for
minimum educational qualifications for teachers and tutorial staff. The
University may approve the appointments of teachers to coordinate and
regulate the facilities provided and expenditure incurred.  The Court
opined that regulation which serves the interests of the teachers are of
paramount importance in good administration,education should be a great
cohesive force in developing integrity of the nation, thus:
“19. The entire controversy centres round the extent of the right
of the religious and linguistic minorities to administer their
educational institutions. The right to administer is said to consist
of four principal matters. First is the right to choose its managing
or governing body. It is said that the founders of the minority
institution have faith and confidence in their own committee or
body consisting of persons elected by them. Second is the right to
choose its teachers. It is said that minority institutions want teachers
to have compatibility with the ideals, aims, and aspirations of the
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institution. Third is the right not to be compelled to refuse admission
to students. In other words, the minority institutions want to have
the right to admit students of their choice subject to reasonable
regulations about academic qualifications. Fourth is the right to
use its properties and assets for the benefit of its own institution.
20. The right conferred on the religious and linguistic minorities to
administer educational institutions of their choice is not an absolute
right. This right is not free from regulation. Just as regulatory
measures are necessary for maintaining the educational character
and content of minority institutions, similarly, regulatory measures
are necessary for ensuring orderly, efficient, and sound
administration. Das, C.J., in the Kerala Education Bill
case(supra) 1959 SCR 995: AIR 1958 SC 956, summed up in one
sentence the true meaning of the right to administer by saying
that the right to administer is not the right to mal-administer.
30. Educational institutions are temples of learning. The virtues
of human intelligence are mastered and harmonised by education.
Where there is complete harmony between the teacher and the
taught, where the teacher imparts and the student receives, where
there is complete dedication of the teacher and the taught in
learning, where there is discipline between the teacher and the
taught, where both are worshippers of learning, no discord or
challenge will arise. An educational institution
runs smoothly when
the teacher and the taught are engaged in the common ideal of
pursuit of knowledge. It is, therefore, manifest that the appointment
of teachers is an important part in educational institutions. The
qualifications and the character of the teachers are really
important. The minority institutions have the right to administer
institutions. This right implies the obligation and duty of the minority
institutions to render the very best to the students. In the right of
administration, checks, and balances in the shape of regulatory
measures are required to ensure the appointment of good teachers
and their conditions of service. The right to administer is to be
tempered with regulatory measures to facilitate smooth
administration. The best administration will reveal no trace or colour
of minority. A minority institution should shine in exemplary
eclectism in the administration of the institution. The best
compliment that can be paid to a minority institution is that it does
not rest on or proclaim its minority character.
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31. Regulations which will serve the interests of the students,
egulations which will serve the interests of the teachers are of
paramount importance in good administration. Regulations in the
interest of efficiency of teachers, discipline, and fairness in
administration are necessary for preserving harmony among
affiliated institutions.
46. The ultimate goal of a minority institution too imparting general
secular education is advancement of learning. This Court has
consistently held that it is not only permissible but also desirable to
regulate everything in educational and academic matters for
achieving excellence and uniformity in standards of education.
47. In the field of administration it is not reasonable to claim that
minority institutions will have complete autonomy. Checks on the
administration may be necessary in order to ensure that the
administration is efficient and sound and will serve the academic
needs of the institution. The right of a minority to administer its
educational institution involves, as part of it, a correlative duty of
good administration.
90. We may now deal with the scope and ambit of the right
guaranteed by clause (1) of Article 30. The clause confers a right
on all minorities, whether they are based on religion or language,
to establish and administer educational instructions of their choice.
The right conferred by the clause is in absolute terms and is not
subject to restrictions,
as in the case of rights conferred by Article
19 of the Constitution. The right of the minorities to administer
educational institutions does not, however, prevent the making of
reasonable regulations in respect of those institutions. The
regulations have necessarily to be made in the interest of the
institution as a minority educational institution. They have to be so
designed as to make it an effective vehicle for imparting education.
The right to administer educational institutions can plainly not
include the right to maladminister. Regulations can be made to
prevent the housing of an educational institution in unhealthy
surroundings as also to prevent the setting up or continuation of
an educational institution without qualified teachers. The State
can prescribe regulations to ensure the excellence of the institution.
Prescription of standards for educational institutions does not
militate against the right of the minority to administer the institutions.
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Regulations made in the true interests of efficiency of instruction,
discipline, health, sanitation, morality, public order, and the like
may undoubtedly be imposed. Such regulations are not restrictions
on the substance of the right, which is guaranteed: they secure
the proper functioning of the institution, in matters educational
[see observations of Shah, J. in Rev. SidhajbhaiSabhai(supra),
[(1963 3 SCR 837]p. 850]. Further, as observed by Hidyatullah,
C.J. in the case of Very Rev. Mother Provincial (supra) [(1971)
1 SCR 734], the standards concern the body politic and are dictated
by considerations of the advancement of the country and its people.
Therefore, if universities establish syllabi for examinations, they
must be followed, subject, however, to special subjects which the
institutions may seek to teach, and to a certain extent, the State
may also regulate the conditions of employment of teachers and
the health and hygiene of students. Such regulations do not bear
directly upon management as such, although they may indirectly
affect it. Yet the right of the State to regulate education, educational
standards, and allied matters cannot be denied. The minority
institutions cannot be allowed to fall below the standards of
excellence expected of educational institutions, or under the guise
of exclusive right of management, to decline to follow the general
pattern. While the management must be left to them, they may be
compelled to keep in step with
others.
92. A regulation which is designed to prevent maladministration
of an educational institution cannot be said to offend Clause (1) of
Article 30. At the same time, it has to be ensured that under the
power of making regulations, nothing is done as would detract
from the character of the institution as a minority educational
institution or which would impinge upon the rights of the minorities
to establish and administer educational institutions of their choice.
The right conferred by Article 30(1) is intended to be real and
effective and not a mere pious and abstract sentiment; it is a
promise of reality and not a teasing illusion. Such a right cannot
be allowed to be whittled down by any measure masquerading as
a regulation. As observed by this Court in the case of Rev.
SidhajbhaiSabhai (supra) [(1963 3 SCR 837], regulations which
may lawfully be imposed either by legislative or executive action
as a condition of receiving grant or of recognition must be directed
to making the institution while retaining its character as minority
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institution effective as an educational institution. Such regulation
must satisfy a dual test — the test of reasonableness, and the test
that it is regulative of the educational character of the institution
and is conducive to making the institution an effective vehicle of
education for the minority community or other persons who resort
to it.
94. If a request is made for the affiliation or recognition of an
educational institution, it is implicit in the request that the educational
institution would abide by the regulations which are made by the
authority granting affiliation or recognition. The said authority can
always prescribe regulations and insist that they should be complied
with before it would grant affiliation or recognition to an educational
institution. To deny the power of making regulations to the authority
concerned would result in robbing the concept of affiliation or
recognition of its real essence. No institution can claim affiliation
or recognition until it conforms to a certain standard. The fact
that the institution is of the prescribed standard indeed inheres in
the very concept of affiliation or recognition. It is, therefore,
permissible for the authority concerned to prescribe regulations
which must be complied with before an institution can seek and
retain affiliation and recognition. Question then arises whether
there is any limitation on the prescription of regulations for minority
educational institutions. So far as this aspect is concerned, the
authority prescribing the regulations must bear in mind that the
Constitution has guaranteed a fundamental right to the minorities
for establishing and administering their educational institutions.
Regulations made by the authority concerned should not impinge
upon that right. Balance has, therefore, to be kept between the
two objectives, that of ensuring the standard of excellence of the
institution and that of preserving the right of the minorities to
establish and administer their educational institutions. Regulations
which embrace and reconcile the two objectives can be considered
to be reasonable.”
(emphasis supplied)
The Court held that it is permissible for the State to prescribe
qualifications for teachers. It observed:
“176. Recognition or affiliation is granted on the basis of the
excellence of an educational institution, namely, that it has reached
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the educational standard set up by the university. Recognition or
affiliation is sought for the purpose of enabling the students in an
educational institution to sit for an examination to be conducted
by the university and to obtain a degree conferred by the
university.For that purpose, the students should have to be coached
in such a manner so as to attain the standard of education
prescribed by the university. Recognition or affiliation creates an
interest in the university to ensure that the educational institution
is maintained for the purpose intended and any regulation which
will subserve or advance that purpose will be reasonable and no
educational institution established and administered by a religious
or linguistic minority can claim recognition or affiliation without
submitting to those regulations. That is the price of recognition or
affiliation: but this does not mean that it should submit to a regulation
stipulating for surrender of a right or freedom guaranteed by the
Constitution, which is unrelated to the purpose of recognition or
affiliation. In other words, recognition or affiliation is a facility
which the university grants to an educational institution, for the
purpose of enabling the students there to sit for an examination to
be conducted by the university in the prescribed subjects and to
obtain the degree conferred by the university, and therefore, it
stands to reason to hold that no regulation which is unrelated to
the purpose can
be imposed. If besides recognition or affiliation,
an educational institution conducted by a religious minority is
granted aid, further regulations for ensuring that the aid is utilized
for the purpose for which it is granted will be permissible. The
heart of the matter is that no educational institution established by
a religious or linguistic minority can claim total immunity from
regulations by the legislature or the university if it wants affiliation
or recognition, but the character of the permissible regulations
must depend upon their purpose. As we said, such regulations will
be permissible if they are relevant to the purpose of securing or
promoting the object of recognition or affiliation. There will be
borderline cases where it is difficult to decide whether a regulation
really subserves the purpose of recognition or affiliation. But that
does not affect the question of principle. In every case, when the
reasonableness of a regulation comes up for consideration before
the Court, the question to be asked and answered is whether the
regulation is calculated to subserve or will in effect subserve the
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purpose of recognition or affiliation, namely, the excellence of the
institution as a vehicle for general secular education to the minority
community and to other persons who resort to it. The question
whether a regulation is in the general interest of the public has no
relevance if it does not advance the excellence of the institution
as a vehicle for general secular education as, ex-hypothesi, the
only permissible regulations are those which secure the
effectiveness of the purpose of the facility, namely, the excellence
of the educational institutions in respect of their educational
standards. This is the reason why this Court has time and again
said that the question whether a particular regulation is calculated
to advance the general public interest is of no consequence if it is
not conducive to the interests of the minority community and those
persons who resort to it.
197. On the second question, I have nothing significant to add to
what has fallen from My Lord the Chief Justice. I am in entire
agreement with the view that, although, Articles 29 and 30 may
supplement each other so far as certain rights of minorities are
concerned, yet, Article 29 of the Constitution does not, in any
way, impose a limit on the kind or character of education which a
minority may choose to impart through its Institution to the children
of its own members or to those of others who may choose to send
their children to its schools. In
other words, it has a right to impart
a general secular education. I would, however, like to point out
that, as rights and duties are correlative, it follows, from the extent
of this wider right of a minority under Article 30(1) to impart even
general or non-denominational secular education to those who
may not follow its culture or subscribe to its beliefs, that, when a
minority Institution decides to enter this wider educational sphere
of national education, it, by reason of this free choice itself, could
be deemed to opt to adhere to the needs of the general pattern of
such education in the country, at least whenever that choice is
made in accordance with statutory provisions. Its choice to impart
an education intended to give a secular orientation or character to
its education necessarily entails its assent to the imperative needs
of the choice made by the State about the kind of “secular”
education which promotes national integration or the elevating
objectives set out in the preamble to our Constitution, and the best
way of giving it. If it is part of a minority’s rights to make such a
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choice, it should also be part of its obligations, which necessarily
follow from the choice to adhere to the general pattern. The logical
basis of such a choice is that the particular minority Institution,
which chooses to impart such general secular education, prefers
that higher range of freedom where, according to the poet
Rabindranath Tagore, “the narrow domestic walls” which
constitute barriers between various sections of the nation will
crumble and fall. It may refuse to accept the choice made by the
State of the kind of secular education the State wants or of the
way in which it should be given. But, in that event, should it not be
prepared to forego the benefits of recognition by the State? The
State is bound to permit and protect the choice of the minority
Institution, whatever that might be. But, can it be compelled to
give it a treatment different from that given to other Institutions
making such a choice?
221. Evidently, what was meant was that the right to exclusive
management of the institution is separable from the right to
determine the character of education and its standards. This may
explain why “standards” of education were spoken as “not part
of management” at all. It meant that the right to manage, having
been conferred in absolute terms, could not be interfered with at
all although the object of that management could be determined
by a general pattern to be laid down by the State, which could
prescribe the syllabi and standards of
education. Speaking for
myself, I find it very difficult to separate the objects and standards
of teaching from a right to determine who should teach and what
their qualifications should be. Moreover, if the “standards of
education” are not part of management, it is difficult to see how
they are exceptions to the principle of freedom of management
from control. Again, if what is aimed at directly is to be distinguished
from an indirect effect of it, the security of tenure of teachers and
provisions intended to ensure fair and equitable treatment for them
by the management of an institution would also not be directly
aimed at interference with its management. They could more
properly be viewed as designed to improve and ensure the
excellence of teachers available at the institution, and, therefore,
to raise the general standard of education. I think that it is enough
for us to distinguish this case on the ground that the provisions to
be interpreted by us are different, although, speaking for myself, I
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feel bound to say, with great respect, that I am unable to accept
every proposition found stated there as correct. In that case, the
provisions of the Kerala University Act 9 of 1969, considered
there were inescapable for the minority institutions which claimed
the right to be free from their operation. As I have already
observed, in the case before us, Section 38-B of the Act provides
the petitioning College before us with a practically certain mode
of escape from the compulsiveness of provisions other than
Sections 5, 40, and 41 of the Act if claims made on its behalf are
correct.
232. Even if Article 30(1) of the Constitution is held to confer
absolute and unfettered rights of management upon minority
institutions, subject only to absolutely minimal and negative controls
in the interests of health and law and order, it could not be meant
to exclude a greater degree of regulation and control when a
minority institution enters the wider sphere of general secular and
non-denominational education, largely employs teachers who are
not members of the particular minority concerned, and when it
derives large parts of its income from the fees paid by those who
are not members of the particular minority in question. Such greater
degree of control could be justified by the need to secure the
interests of those who are affected by the management of the
minority institution and the education it imparts but who are not
members
of the minority in management. In other words, the
degree of reasonably permissible control must vary from situation
to situation. For the reasons already given above, I think that,
apart from Sections 5, 40 and 41 of the Act, which directly and
unreasonably impinge upon the rights of the petitioning minority
managed college, protected by Article 30(1) of the Constitution, I
do not think that the other provisions have that effect. On the
situation under consideration before us, the minority institution
affected by the enactment has, upon the claims put forward on its
behalf, a means of escape from the impugned provisions other
than Sections 5, 40 and 41 of the Act by resorting to Section 38B
of the Act.”
(emphasis supplied)
23. In The Gandhi Faiz-e-am College, Shahjahanpur v.
University of Agra and Anr., (1975) 2 SCC 283, the Court considered
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whether statute framed by University of Agra infringed fundamental
rights of the minority community and observed thus:
“16. The discussion throws us back to a closer study of Statute
14-A to see if it cuts into the flesh of the management’s right or
merely tones up its health and habits. The two requirements the
University asks for are that the managing body (whatever its name)
must take in (a) the Principal of the College; (b) its seniormost
teacher. Is this desideratum dismissible as biting into the autonomy
of management or tenable as ensuring the excellence of the
institution without injuring the essence of the right? On a careful
reflection and conscious of the constitutional dilemma, we are
inclined to the view that this case falls on the valid side of the
delicate line. Regulation which restricts is bad, but regulation which
facilitates is good. Where does this fine distinction lie? No rigid
formula is possible, but a flexible test is feasible. Where the object
and effect is to improve the tone and temper of the administration
without forcing on it a stranger, however superb his virtues be,
where the directive is not to restructure the governing body but to
better its performance by a marginal catalytic induction, where
no external authority’s fiat or approval or outside nominee is made
compulsory to validate the Management Board but inclusion of
an internal key functionary appointed by the autonomous
management alone is asked for, the provision is
salutary and saved,
being not a diktat eroding the freedom of the freedom.”
(emphasis supplied)
The majority negated the challenge. It was held that regulation
which restricts is bad, but provision which facilitates is good.
24. In Frank Anthony Public School Employees’ Association
v. Union of India and others, (1986) 4 SCC 707, question arose whether
teachers and other employees working in an unaided school were entitled
to same pay-scale, allowances, and benefits.  The Court allowed the
petition and opined thus:
 “16. The excellence of the instruction provided by an institution
would depend directly on the excellence of the teaching staff, and
in turn, that would depend on the quality and the contentment of
the teachers. Conditions of service pertaining to minimum
qualifications of teachers, their salaries, allowances and other
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conditions of service which ensure security, contentment and
decent living standards to teachers and which will consequently
enable them to render better service to the institution and the
pupils cannot surely be said to be violative of the fundamental
right guaranteed by Article 30(1) of the Constitution. The
management of a minority Educational Institution cannot be
permitted under the guise of the fundamental right guaranteed by
Article 30(1) of the Constitution, to oppress or exploit its employees
any more than any other private employee. Oppression or
exploitation of the teaching staff of an educational institution is
bound to lead, inevitably, to discontent and deterioration of the
standard of instruction imparted in the institution affecting adversely
the object of making the institution an effective vehicle of education
for the minority community or other persons who resort to it. The
management of minority institution cannot complain of invasion
of the fundamental right to administer the institution when it denies
the members of its staff the opportunity to achieve the very object
of Article 30(1) which is to make the institution an effective vehicle
of education.”
(emphasis supplied)
25. In Bihar State Madarasa Education Board, Patna v.
MadarasaHanfia Arabic College, Jamalia and others, (1990) 1 SCC
428, the Court held that minorities have the right to establish and administer
educational institution of
their own choice. Still, they have no right to
maladminister, and the State has the power to regulate the management
and administration of such institutions in the interest of educational need
and discipline of the institution. The Court held thus:
“6. The question which arises for consideration is whether Section
7(2)(n) which confers power on the Board to dissolve the
Managing Committee of an aided and recognised Madarasa
institution violates the minorities constitutional right to administer
its educational institution according to their choice. This Court
has all along held that though the minorities have right to establish
and administer educational institution of their own choice but they
have no right to maladminister and the State has power to regulate
management and administration of such institutions in the interest
of educational need and discipline of the institution. Such regulation
may have indirect effect on the absolute right of minorities but
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that would not violate Article 30(1) of the Constitution as it is the
duty of the State to ensure efficiency in educational institutions.
The State has, however, no power to completely take over the
management of a minority institution. Under the guise of regulating
the educational standards to secure efficiency in institution, the
State is not entitled to frame rules or regulations compelling the
management to surrender its right of administration. In State of
Kerala v. Very Rev. Mother Provincial, (1970) 2 SCC 417, Section
63(1) of the Kerala University Act, 1969 which conferred power
on the government to take over the management of a minority
institution on its default in carrying out the directions of the State
Government was declared ultra vires on the ground that the
provisions interfered with the constitutional right of a minority to
administer its institution. Minority institutions cannot be allowed
to fall below the standard of excellence on the pretext of their
exclusive right of management but at the same time their
constitutional right to administer their institutions cannot be
completely taken away by superseding or dissolving Managing
Committee or by appointing ad hoc committees in place thereof.
In the instant case Section 7(2)(n) is clearly violative of
constitutional right of minorities under Article 30(1) of the
Constitution insofar as it provides for dissolution of Managing
Committee of a Madarasa. We agree with the view taken by the
High Court.”
(emphasis supplied)
26. In St. Stephen’s College v. University of Delhi, (1992) 1
SCC 558, concerning admission process adopted by aided minority
institutions, various questions were raised thus:
“41. It was contended that St. Stephen’s College after being
affiliated to the Delhi University has lost its minority character.
The argument was based on some of the provisions in the Delhi
University Act and the Ordinances made thereunder. It was said
that the students are admitted to the University and not to the
College as such. But we find no substance in the contention. In
the first place, it may be stated that the State or any instrumentality
of the State cannot deprive the character of the institution, founded
by a minority community by compulsory affiliation since Article
30(1) is a special right to minorities to establish educational
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institutions of their choice. The minority institution has a distinct
identity and the right to administer with continuance of such identity
cannot be denied by coercive action. Any such coercive action
would be void being contrary to the constitutional guarantee. The
right to administer is the right to conduct and manage the affairs
of the institution. This right is exercised by a body of persons in
whom the founders have faith and confidence. Such a
management body of the institution cannot be displaced or
reorganised if the right is to be recognised and maintained.
Reasonable regulations however, are permissible but regulations
should be of regulatory nature and not of abridgment of the right
guaranteed under Article 30(1).
60.The right to select students for admission is a part of
administration. It is indeed an important facet of administration.
This power also could be regulated but the regulation must be
reasonable just like any other regulation. It should be conducive
to the welfare of the minority institution or for the betterment of
those who resort to it. The Bombay Government order which
prevented the schools using English as the medium of instruction
from admitting students who have a mother tongue other than
English was held to be invalid since it restricted the admission
pattern of the schools [State of Bombay v. Bombay Education
Society,(1955) 1 SCR 568]. The Gujarat Government direction to
the
minority run college to reserve 80 per cent of seats for
government selected candidates with a threat to withdraw the
grant-in-aid and recognition was struck down as infringing the
fundamental right guaranteed to minorities under Article 30(1) of
the Constitution [Sidhajbhai Sabhai v. State of Bombay, (1963)
3 SCR 837]. In Rt. Rev. Magr. Mark Netto v. State of Kerala,
(1979) 1 SCC 23, the denial of permission to the management of
a minority school to admit girl students was held to be bad. The
Regional Deputy Director in that case refused to give sanction
for admission of girl students on two grounds: (i) that the school
was not opened as a mixed school and that the school has been
run purely as a boys school for 25 years; and (ii) that there was
facility for the education of girls of the locality in a nearby girls
school which was established by the Muslims and was also a
minority institution. This Court noted that the Christian community
in the locality wanted their girls also to receive education in the
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school maintained specially by their own community. They did not
think it in their interest to send their children to the Muslim girls
school run by the other minority community. The withholding of
permission for admission of girl students in the boys minority school
was violative of Article 30(1). It was also observed that the rule
sanctioning such refusal of permission crosses the barrier of
regulatory measures and comes in the region of interference with
the administration of the institution, a right which is guaranteed to
the minority under Article 30(1). The Court restricted the operation
of the rule and made it inapplicable to the minority educational
institution. In Director of School Education, Government of
T.N. v. Rev. Brother G. Arogiasamy,AIR 1971 Mad 440, the
Madras High Court had an occasion to consider the validity of an
uniform procedure prescribed by the State Government for
admission of candidates to the aided training schools. The
government directed that the candidates should be selected by
the school authorities by interviewing every candidate eligible for
admission and assessing and awarding marks in the interview.
The marks awarded to each candidate in the interview will be
added to the marks secured by the candidate in the SSLC public
examination. On the basis of the aggregate of marks in the SSLC
examination and those obtained at the interview the selection was
to be made without any further discretion. The High Court held
that
the method of selection placed serious restrictions on the
freedom of the minority institution to admit their own students. It
was found that the students of the minority community could not
compete with the students belonging to other communities. The
applications of students from other communities could not be
restricted under law. The result was that the students of minority
community for whose benefit the institution was founded, had
little chance of getting admission. The High Court held that the
government order prescribing the uniform method of selection
could not be applied to minority institutions.
78. Having set the scene, we can deal with the provisions of
Articles 29(1) and 30(1) relatively quickly. Under Article 29(1)
every section of the citizens having a distinct language, script or
culture of its own has the right to conserve the same. Under Article
29(1), the minorities — religious or linguistic — are entitled to
establish and administer educational institutions to conserve their
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distinct language, script or culture. However, it has been consistently
held by the courts that the right to establish an educational institution
is not confined to purposes of conservation of language, script or
culture. The rights in Article 30(1) are of wider amplitude. The
width of Article 30(1) cannot be cut down by the considerations
on which Article 29(1) is based. The words “of their choice” in
Article 30(1) leave vast options to the minorities in selecting the
type of educational institutions which they wish to establish. They
can establish institutions to conserve their distinct language, script
or culture or for imparting general secular education or for both
the purposes. (See: Father W. Proost v. State of Bihar, (1969) 2
SCR 73,Ahmedabad St. Xavier’s College v. State of Gujarat,
(1974) 1 SCC 717; and Kerala Education Bill case, 1959 SCR
995.)”
 (emphasis supplied)
The decision in St. Stephen’s College (supra) has been analysed
by my esteemed brother Lalit, J. in Sk. Md. Rafique v. Managing
Committee, ContaiRahamania High Madrasah and Ors., 2020 (1)
SCALE 345, thus:
“28. In St. Stephen’s College vs. University of Delhi, (1992) 1
SCC 558 a Bench of five Judges of this Court had an occasion to
consider the admission process adopted by two aided minority
institutions viz. St. Stephen’s College at Delhi and Allahabad
Agricultural Institute at Naini. The factual context as summed-up
in the majority judgment
authored by Shetty, J., was as under:
“68. It is not in dispute that St. Stephen’s College and Allahabad
Agricultural Institute are receiving grant-in-aid from the
government. St. Stephen’s College gives preference to Christian
students. The Allahabad Agricultural Institute reserves 50 per
cent of the seats for Christian students. The Christian
students admitted by preference or against the quota reserved
are having less merit in the qualifying examination than the
other candidates. The other candidates with more merit are
denied admission on the ground that they are not Christians.
69. It was argued for the University and the Students Union
that since both the institutions are receiving State aid, the
institutional preference for admission based on religion is
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violative of Article 29(2) of the Constitution. The institutions
shall not prefer or deny admission to candidates on ground of
religion. For institutions, on the other hand, it was claimed that
any preference given to the religious minority candidates in
their own institutions cannot be a discrimination falling under
Article 29(2). The institutions are established for the benefit
of their community and if they are prevented from admitting
their community candidates, the purpose of establishing the
institutions would be defeated. The minorities are entitled to
admit their candidates by preference or by reservation. They
are also entitled to admit them to the exclusion of all others
and that right flows from the right to establish and administer
educational institutions guaranteed under Article 30(1).”
28.1. The majority judgment dealt with the submissions raised by
the institution as under:
“80. Equally, it would be difficult to accept the
second submission that the minorities are entitled to
establish and administer educational institutions for their
exclusive benefit. The choice of institution provided in
Article 30(1) does not mean that the minorities could establish
educational institution for the benefit of their own community
people. Indeed, they cannot. It was pointed out in Re, Kerala
Education Bill that the minorities cannot establish educational
institution only for the benefit of their community. If such was
the aim, Article 30(1) would have
been differently worded and
it would have contained the words “for their own community”.
In the absence of such words it is legally impermissible to
construe the article as conferring the right on the minorities to
establish educational institution for their own benefit.
81. Even in practice, such claims are likely to be met with
considerable hostility. It may not be conducive to have a
relatively homogeneous society. It may lead to religious bigotry
which is the bane of mankind. In the nation building with secular
character sectarian schools or colleges, segregated faculties
or universities for imparting general secular education are
undesirable and they may undermine secular democracy. They
would be inconsistent with the central concept of secularism
and equality embedded in the Constitution. Every educational
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institution irrespective of community to which it belongs is a
‘melting pot’ in our national life. The students and teachers are
the critical ingredients. It is there they develop respect for, and
tolerance of, the cultures and beliefs of others. It is essential
therefore, that there should be proper mix of students of
different communities in all educational institutions.”
***
28.3. The majority Judgment, then, considered the matter from
the perspective of “Rights of Minorities and Balancing Interest” and
observed:
“101. Laws carving out the rights of minorities in
Article 30(1) however, must not be arbitrary, invidious or
unjustified; they must have a reasonable relation between the aim
and the means employed. The individual rights will necessarily
have to be balanced with competing minority interests. In
Sidhajbhai case (1963) 3 SCR 837 the government order
directing the minority run college to reserve 80 per cent of seats
for government nominees and permitting only 20 per cent of seats
for the management with a threat to withhold the grant-in-aid
and recognition was struck down by the Court as infringing the
fundamental freedom guaranteed by Article 30(1). Attention may
also be drawn to Article 337 of the Constitution which provided a
special concession to Anglo-Indian community for ten years from
the commencement of the Constitution. Unlike Article 30(2) it
conferred a positive right on the Anglo-Indian community
to get
grants from the government for their educational institutions,
but subject to the condition that at least 40 per cent of annual
admission were made available to members of other communities.
102. In the light of all these principles and factors, and in view of
the importance which the Constitution attaches to protective
measures to minorities under Article 30(1), the minority aided
educational institutions are entitled to prefer their community
candidates to maintain the minority character of the institutions
subject of course to conformity with the University standard. The
State may regulate the intake in this category with due regard to
the need of the community in the area which the institution is
intended to serve. But in no case such intake shall exceed 50 per
cent of the annual admission. The minority institutions shall make
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available at least 50 per cent of the annual admission to members
of communities other than the minority community. The admission
of other community candidates shall be done purely on the basis
of merit.”
28.4. It was also observed that regulations which serve the interest
of students and teachers and preserve the uniformity in standards of
education amongst the affiliated institutions could validly be made. The
relevant discussion in para 59 was as under:
“59. The need for a detailed study on this aspect is indeed not
necessary. The right to minorities whether religious or linguistic, to
administer educational institutions and the power of the State
to regulate academic matters and management is now fairly well
settled. The right to administer does not include the right to
maladminister. The State being the controlling authority has right
and duty to regulate all academic matters. Regulations which will
serve the interests of students and teachers, and to preserve the
uniformity in standards of education among the affiliated institutions
could be made. The minority institutions cannot  claim 
immunity against such general pattern and standard or against
general laws such as laws relating to law and order, health,
hygiene, labour relations, social welfare legislations, contracts, torts
etc. which are applicable to all communities. So long as the basic
right of minorities to manage educational institution is not taken
away, the State is competent to make
regulatory legislation.
Regulations, however, shall not have the effect of depriving the
right of minorities to educate their children in their own institution.
That is a privilege which is implied in the right conferred by
Article 30(1).”
28.5. The dissenting opinion of Kasliwal, J. quoted a passage
from the Constituent Assembly Debates (CAD) touching upon the matter
in issue as under:-
“137. These were Articles 23(1) on the one hand and 23(3)(a)
and 23(3)(b) on the other hand in the Draft Constitution. Firstly,
Dr. B.R. Ambedkar said in relation to draft Article 23(2)
corresponding to the present Article 28 of the Constitution that
even in relation to Articles 30 and 29 the State was completely
free to give or not to give aid to the educational institutions of the
religious or linguistic minorities. He said:
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“Now, with regard to the second clause I think it has not been
sufficiently well understood. We have tried to reconcile the
claim of a community which has started educational institutions
for the advancement of its own children either in education or
in cultural matters, to permit to give religious instruction in such
institutions; notwithstanding the fact that it receives certain aid
from the State. The State, of course, is free to give aid, is free
not to give aid; the only limitation we have placed is this, that
the State shall not debar the institution from claiming aid under
its grant-in-aid code merely on the ground that it is run and
maintained by a community and not maintained by a public
body. We have there provided also a further qualification, that
while it is free to give religious instruction in the institution and
the grant made by the State shall not be a bar to the giving of
such instruction, it shall not give instruction to, or make it
compulsory upon, the children belonging to other communities
unless and until they obtain the consent of the parents of
these children. That, I think, is a salutary provision. It performs
two functions...
Shri H.V. Kamath: On a point of clarification what about
institutions and schools run by a community or a minority for
its own pupils — not a school where all communities are mixed
but a school run by the community for its own pupils?
The Hon’ble Dr. B.R. Ambedkar: If
my friend, Mr. Kamath
will read the other article he will see that once an institution,
whether maintained by the community or not, gets a grant, the
condition is that it shall keep the school open to all communities.
That provision he has not read.”
138. He reaffirmed the freedom of the State to give or not to
give aid to these schools when directly referring
to draft Article 23 which is the precursor of the present
Articles 29 and 30 as follows (VII CAD 923):
“I think another thing which has to be borne in reading
Article 23 is that it does not impose any obligation or burden
upon the State. It does not say that, when for instance the
Madras people come to Bombay, the Bombay Government
shall be required by law to finance any project of giving
education either in Tamil language or in Andhra language
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or any other language. There is no burden cast upon the
State. The only limitation that is imposed by Article 23 is
that if there is a cultural minority which wants to preserve
its language, its script and its culture, the State shall not by
law impose upon it any other culture which may be either
local or otherwise.”
And, went on to observe that once an institution was receiving
aid, “it must abide by the rigor of Article 29(2) in the matter of
admission of students in the college” and “as already held by
me, St. Stephen’s College and Allahabad Agricultural Institute
are not entitled to claim any preferential right or reservation in
favour of students of Christian community as they are getting
grant-in-aid and as such I do not consider it necessary to labour
any more on the question of deciding as to what percentage
can be considered as reasonable.”
(emphasis supplied)
The Court held that the choice of institution does not mean that
the minorities could establish educational institution for the benefit of
their own community people.  In ReTheKerala Education Bill (supra),
it was considered and observed that the minorities cannot establish
educational institution only for the benefit of their community.  Every
educational institution, irrespective of community to which it belongs, is
a ‘melting pot’ in our national life and that there should be mixing up of
students of different communities in all educational institutions. The intake
for the community
cannot exceed 50% of the annual admission, which is
to be provided to other than the minority community. The admission
should be made purely on the basis of merit.
27. In T.M.A. Pai Foundation (supra), decided by Bench of 11
Judges of the Court,on consideration of the rights under Article 30 of the
Constitution of India, held thus:
“3. The hearing of these cases has had a chequered history. Writ
Petition No. 350 of 1993 filed by the Islamic Academy of Education
and connected petitions were placed before a Bench of five Judges.
As the Bench was prima facie of the opinion that Article 30 did
not clothe a minority educational institution with the power to adopt
its own method of selection and the correctness of the decision
of this Court in St. Stephen’s College v. University of Delhi,
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(1992) 1 SCC 558, was doubted, it was directed that the questions
that arose should be authoritatively answered by a larger Bench.
These cases were then placed before a Bench of seven Judges.
The questions framed were recast and on 6-2-1997, the Court
directed that the matter be placed before a Bench of at least
eleven Judges, as it was felt that in view of the Forty-second
Amendment to the Constitution, whereby “education” had been
included in Entry 25 of List III of Seventh Schedule, the question of
who would be regarded as a ”minority” was required to be
considered because the earlier case-law 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 19-3-1997, 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 —Kerala Education Bill, 1957, In
Re, AIR 1958 SC 956 and Ahmedabad St. Xavier’s College
Society v. State of Gujarat, (1974) 1 SCC 717it is clarified
that this sized Bench would not feel itself inhibited by the views
expressed in those cases since the present endeavour is to
discern the true scope and interpretation of Article 30(1) of
the Constitution, which being the dominant question would
require examination in its pristine purity. The factum is
recorded.””
38. The scheme in
Unni Krishnan case, (1993) 1 SCC 645 has
the effect of nationalizing education in respect of important features
viz. the right of a private unaided institution to give admission and
to fix the fee. By framing this scheme, which has led to the State
Governments legislating in conformity with the scheme, the private
institutions are indistinguishable from the government institutions;
curtailing all the essential features of the right of administration of
a private unaided educational institution can neither be called fair
nor reasonable. Even in the decision in Unni Krishnan case it
has been observed by Jeevan Reddy, J., at p. 749, para 194, as
follows:
“194. The hard reality that emerges is that private educational
institutions are a necessity in the present-day context. It is not
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possible to do without them because the governments are in
no position to meet the demand — particularly in the sector of
medical and technical education which call for substantial
outlays. While education is one of the most important functions
of the Indian State it has no monopoly therein. Private
educational institutions — including minority educational
institutions — too have a role to play.”
40. Any system of student selection would be unreasonable if it
deprives the private unaided institution of the right of rational
selection, which it devised for itself, subject to the minimum
qualification that may be prescribed and to some system of
computing the equivalence between different kinds of qualifications,
like a common entrance test. Such a system of selection can involve
both written and oral tests for selection, based on principle of
fairness.
45. In view of the discussion hereinabove, we hold that the decision
in Unni Krishnan case, (1993) 1 SCC 645 insofar as it framed
the scheme relating to the grant of admission and the fixing of the
fee, was not correct, and to that extent, the said decision and the
consequent directions given to UGC, AICTE, the Medical Council
of India, the Central and State Governments etc. are overruled.
50.The right to establish and administer broadly comprises the
following rights:
(a) to admit students;
(b) to set up a reasonable fee structure;
(c) to constitute a governing body;
(d) to appoint staff (teaching and
non-teaching); and
(e) to take action if there is dereliction of duty on the part of
any employees.
53. With regard to the core components of the rights under Articles
19 and 26(a), it must be held that while the State has the right to
prescribe qualifications necessary for admission, private unaided
colleges have the right to admit students of their choice, subject to
an objective and rational procedure of selection and the compliance
with conditions, if any, requiring admission of a small percentage
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of students belonging to weaker sections of the society by granting
them freeships or scholarships, if not granted by the Government.
Furthermore, in setting up a reasonable fee structure, the element
of profiteering is not as yet accepted in Indian conditions. The fee
structure must take into consideration the need to generate funds
to be utilized for the betterment and growth of the educational
institution, the betterment of education in that institution and to
provide facilities necessary for the benefit of the students. In any
event, a private institution will have the right to constitute its own
governing body, for which qualifications may be prescribed by the
State or the university concerned. It will, however, be objectionable
if the State retains the power to nominate specific individuals on
governing bodies. Nomination by the State, which could be on a
political basis, will be an inhibiting factor for private enterprise to
embark upon the occupation of establishing and administering
educational institutions. For the same reasons, nomination of
teachers either directly by the department or through a service
commission will be an unreasonable inroad and an unreasonable
restriction on the autonomy of the private unaided educational
institution.
68. It would be unfair to apply the same rules and regulations
regulating admission to both aided and unaided professional
institutions. It must be borne in mind that
unaided professional
institutions are entitled to autonomy in their administration while,
at the same time, they do not forego or discard the principle of
merit. It would, therefore, be permissible for the university or the
Government, at the time of granting recognition, to require a private
unaided institution to provide for 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
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fixed for minority unaided and non-minority unaided and
professional colleges. The same principles may be applied to other
non-professional but unaided educational institutions viz. graduation
and postgraduation non-professional colleges or institutes.
71. While giving aid to professional institutions, it would be
permissible for the authority giving aid to prescribe by rules or
regulations, the conditions on the basis of which admission will be
granted to different aided colleges by virtue of merit, coupled with
the reservation policy of the State. The merit may be determined
either through a common entrance test conducted by the university
or the Government followed by counselling, or on the basis of an
entrance test conducted by individual institutions — the method
to be followed is for the university or the Government to decide.
The authority may also devise other means to ensure that admission
is granted to an aided professional institution on the basis of merit.
In the case of such institutions, it will be permissible for the
Government or the university to provide that consideration should
be shown to the weaker sections of the society.
90. In the exercise of this right to conserve the language, script or
culture, that section of the society can set up educational institutions.
The right to establish and maintain educational institutions of its
choice is a necessary concomitant to the right conferred by
Article 30. The right under Article 30 is not
absolute.
Article 29(2) provides that, where any educational institution is
maintained by the State or receives aid out of State funds, no
citizen shall be denied admission on the grounds only of religion,
race, caste, language or any of them. The use of the expression
“any educational institution” in Article 29(2) would (sic not) refer
to any educational institution established by anyone, but which is
maintained by the State or receives aid out of State funds. In
other words, on a plain reading, State-maintained or aided
educational institutions, whether established by the Government
or the majority or a minority community cannot deny admission to
a citizen on the grounds only of religion, race, caste or language.
93. Can Article 30(1) be so read as to mean that it contains
an absolute right of the minorities, whether based on religion or
language, to establish and administer educational institutions in any
manner they desire, and without being obliged to comply with
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the provisions of any law? Does Article 30(1) give the religious
or linguistic minorities a right toestablish an educational institution
that propagates religious or racial bigotry or ill will amongst the
people? Can the right under Article 30(1) be so exercised that it
is opposed to public morality or health? In the exercise of its right,
would the minority while establishing educational institutions not
be bound by town planning rules and regulations? Can
they construct and maintain buildings in any manner they desire
without complying with the provisions of the building bye-laws or
health regulations?
105. In Rev. SidhajbhaiSabhai v. State of Bombay, (1963) 3
SCR 837, this Court had to consider the validity of an order issued
by the Government of Bombay whereby from the academic year
1955-56, 80% of the seats in the training colleges for teachers in
non-government training colleges were to be reserved for the
teachers nominated by the Government. The petitioners, who
belonged to the minority community, were, inter alia, running a
training college for teachers, as also primary schools. The said
primary schools and college were conducted for the benefit of
the religious denomination of the United Church of Northern India
and Indian Christians generally, though admission was not denied
to students belonging to other communities. The petitioners
challenged the government order requiring 80% of the seats to
be filled by
nominees of the Government, inter alia, on the ground
that the petitioners were members of a religious denomination and
that they constituted a religious minority, and that the educational
institutions had been established primarily for the benefit of the
Christian community. It was the case of the petitioners that the
decision of the Government violated their fundamental rights
guaranteed by Articles 30(1), 26(a), (b), (c) and (d), and 19(1)(f)
and (g). While interpreting Article 30, it was observed by this
Court at SCR pp. 849-50 as under:
“All minorities, linguistic or religious have by Article 30(1)
an absolute right to establish and administer educational
institutions of their choice; and any law or executive direction
which seeks to infringe the substance of that right under
Article 30(1) would to that extent be void. This, however, is
not to say that it is not open to the State to impose regulations
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upon the exercise of this right. The fundamental freedom is to
establish and to administer educational institutions: it is a right to
establish and administer what are in truth educational institutions,
institutions which cater to the educational needs of the citizens,
or sections thereof. Regulation made in the true interests of
efficiency of instruction, discipline, health, sanitation, morality,
public order and the like may undoubtedly be imposed. Such
Regulations are not restrictions on the substance of the right
which is guaranteed: they secure the proper functioning of the
institution, in matters educational.”
106. While coming to the conclusion that the right of the private
training colleges to admit students of their choice was severely
restricted, this Court referred to the opinion in Kerala Education
Bill, 1957 case, 1959 SCR 995, but distinguished it by observing
that the Court did not, in that case, lay down any test
of reasonableness of the regulation. No general principle on which
the reasonableness of a regulation may be tested was sought to
be laid down in Kerala Education Bill, 1957 case, 1959 SCR
995 and, therefore, it was held in SidhajbhaiSabhai case, (1963)
3 SCR 837 that the opinion in that case was not an authority for
the proposition that all regulative measures, which were not
destructive or annihilative of the character of the institution
established by the minority, provided the regulations were in the
national or public
interest, were valid. In this connection it was
further held at SCR pp. 856-57, as follows:
“The right established by Article 30(1) is a fundamental
right declared in terms absolute. Unlike the fundamental
freedoms guaranteed by Article 19, it is not subject
to reasonable restrictions. It is intended to be a real right for
the protection of the minorities in the matter of setting up of
educational institutions of their own choice. The right is intended
to be effective and is not to be whittled down by so-called
regulative measures conceived in the interest not of the minority
educational institution, but of the public or the nation as a whole.
If every order which while maintaining the formal character
of a minority institution destroys the power of administration is
held justifiable because it is in the public or national interest,
though not in its interest as an educational institution, the right
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guaranteed by Article 30(1) will be but a ‘teasing illusion’,
a promise of unreality. Regulations which may lawfully be
imposed either by legislative or executive action as a condition
of receiving grant or of recognition must be directed to making
the institution while retaining its character as a minority institution
effective as an educational institution. Such regulation must
satisfy a dual test — the test of reasonableness, and the test
that it is regulative of the educational character of the institution
and is conducive to making the institution an effective vehicle
of education for the minority community or other persons who
resort to it.”
107. The aforesaid decision does indicate that the right under
Article 30(1) is not so absolute as to prevent the Government from
making any regulation whatsoever. As already noted hereinabove,
in SidhajbhaiSabhai case, (1963) 3 SCR 837, it was laid down
that regulations made in the true interests of efficiency of instruction,
discipline, health, sanitation, morality and public order could be
imposed. If this is so, it is difficult to appreciate how the
Government can be prevented from framing regulations that are
in the national interest, as it seems to be indicated in the passage
quoted hereinabove. Any regulation framed in the national interest
must necessarily apply to all educational institutions, whether run
by the majority or the minority. Such a limitation must
necessarily
be read into Article 30. The right under Article 30(1) cannot be
such as to override the national interest or to prevent the
Government from framing regulations in that behalf. It is, of course,
true that government regulations cannot destroy the minority
character of the institution or make the right to establish and
administer a mere illusion; but the right under Article 30 is not so
absolute as to be above the law. It will further be seen that
in SidhajbhaiSabhai case, (1963) 3 SCR 837, no reference was
made to Article 29(2) of the Constitution. This decision, therefore,
cannot be an authority for the proposition canvassed before us.
119. In a concurrent judgment, while noting (at SCC p. 770, para
73) that ”clause (2) of Article 29 forbids the denial of admission
to citizens into any educational institution maintained by the State
or receiving aid out of State funds on grounds only of religion,
race, caste, language or any of them”, Khanna, J. then examined
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Article 30, and observed at SCR p. 222, as follows: (SCC p. 770,
para 74)
“74. Clause (1) of Article 30 gives right to all minorities,
whether based on religion or language, to establish and
administer educational institutions of their choice. Analysing
that clause it would follow that the right which has been
conferred by the clause is on two types of minorities. Those
minorities may be based either on religion or on language. The
right conferred upon the said minorities is to establish and
administer educational institutions of their choice. The word
‘establish’ indicates the right to bring into existence, while the
right to administer an institution means the right to effectively
manage and conduct the affairs of the institution. Administration
connotes management of the affairs of the institution. The
management must be free of control so that the founders or
their nominees can mould the institution as they think fit and in
accordance with their ideas of how the interest of the
community in general and the institution in particular will be
best served. The words ‘of their choice’ qualify the educational
institutions and show that the educational institutions established
and administered by the minorities need not be of some particular
class; the minorities have the right and freedom to establish and
administer such educational institutions as they choose. Clause
(2) of Article 30 prevents the State from making discrimination
in the matter of grant of
aid to any educational institution on
the ground that the institution is under the management of a
minority, whether based on religion or language.”
120. Explaining the rationale behind Article 30, it was observed
at SCR p. 224, as follows: (SCC p. 772, para 77)
“77. The idea of giving some special rights to the minorities is
not to have a kind of a privileged or pampered section of the
population but to give to the minorities a sense of security and
a feeling of confidence. The great leaders of India since time
immemorial had preached the doctrine of tolerance and
catholicity of outlook. Those noble ideas were enshrined in the
Constitution. Special rights for minorities were designed not to
create inequality. Their real effect was to bring about equality
by ensuring the preservation of the minority institutions and by
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guaranteeing to the minorities autonomy in the matter of the
administration of those institutions. The differential treatment
for the minorities by giving them special rights is intended to
bring about an equilibrium, so that the ideal of equality may not
be reduced to a mere abstract idea but should become a living
reality and result in true, genuine equality, an equality not merely
in theory but also in fact.”
121. While advocating that provisions of the Constitution should
be construed according to the liberal, generous and sympathetic
approach, and after considering the principles which could be
discerned by him from the earlier decisions of this Court, Khanna,
J., observed at SCR p. 234, as follows: (SCC p. 781, para 89)
“The minorities are as much children of the soil as the majority
and the approach has been to ensure that nothing should be
done as might deprive the minorities of a sense of belonging,
of a feeling of security, of a consciousness of equality and of
the awareness that the conservation of their religion, culture,
language and script as also the protection of their educational
institutions is a fundamental right enshrined in the Constitution.
The same generous, liberal and sympathetic approach should
weigh with the courts in construing Articles 29 and 30 as
marked the deliberations of the Constitution-makers in drafting
those articles and making them part of the fundamental rights.
The safeguarding
of the interest of the minorities amongst
sections of population is as important as the protection of the
interest amongst individuals of persons who are below the age
of majority or are otherwise suffering from some kind
of infirmity. The Constitution and the laws made by civilized
nations, therefore, generally contain provisions for the
protection of those interests. It can, indeed, be said to be an
index of the level of civilization and catholicity of a nation as to
how far their minorities feel secure and are not subject to any
discrimination or suppression.”
122. The learned Judge then observed that the right of the
minorities to administer educational institutions did not prevent the
making of reasonable regulations in respect of these institutions.
Recognizing that the right to administer educational institutions
could not include the right to maladminister, it was held that
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regulations could be lawfully imposed, for the receiving of grants
and recognition, while permitting the institution to retain its
character as a minority institution. The regulation ”must satisfy a
dual test — the test of reasonableness, and the test that it is
regulative of the educational character of the institution and is
conducive to making the institution an effective vehicle of education
for the minority community or other persons who resort to it”.
(SCC p. 783, para 92) It was permissible for the authorities to
prescribe regulations, which must be complied with, before a
minority institution could seek or retain affiliation and recognition.
But it was also stated that the regulations made by the authority
should not impinge upon the minority character of the
institution. Therefore, a balance has to be kept between the two
objectives — that of ensuring the standard of excellence of the
institution, and that of preserving the right of the minorities to
establish and administer their educational institutions. Regulations
that embraced and reconciled the two objectives could be
considered to be reasonable. This, in our view, is the correct
approach to the problem.
123. After referring to the earlier cases in relation to the
appointment of teachers, it was noted by Khanna, J., that the
conclusion which followed was that a law which interfered with a
minority’s choice of qualified teachers, or its disciplinary control
over teachers and other members of
the staff of the institution,
was void, as it was violative of Article 30(1). While it was
permissible for the State and its educational authorities to prescribe
the qualifications of teachers, it was held that once the teachers
possessing the requisite qualifications were selected by the
minorities for their educational institutions, the State would have
no right to veto the selection of those teachers. The selection and
appointment of teachers for an educational institution was regarded
as one of the essential ingredients under Article 30(1). The Court’s
attention was drawn to the fact that in Kerala Education Bill,
1957 case, 1959 SCR 995,  this Court had opined that clauses 11
and 12 made it obligatory for all aided schools to select teachers
from a panel selected from each district by the Public
Service Commission and that no teacher of an aided school could
be dismissed, removed or reduced in rank without the
previous sanction of the authorized officer. At SCR p.245, Khanna,
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J., observed that in cases subsequent to the opinion in Kerala
Education Bill, 1957 case, (1959) SCR 995 this Court had held
similar provisions as clause 11 and clause 12 to be violative of
Article 30(1) of the minority institutions. He then observed as
follows: (SCC p. 792, para 109).
“The opinion expressed by this Court in Re Kerala Education
Bill, 1957, 1959 SCR 995, was of an advisory character and
though great weight should be attached to it because of its
persuasive value, the said opinion cannot override the opinion
subsequently expressed by this Court in contested cases. It is
the law declared by this Court in the subsequent contested
cases which would have a binding effect. The words ‘as at
present advised’ as well as the preceding sentence indicate
that the view expressed by this Court in Re Kerala Education
Bill, 1957 in this respect was hesitant and tentative and not a
final view in the matter.”
135. We agree with the contention of the learned Solicitor-
General that the Constitution in Part III does not contain or give
any absolute right. All rights conferred in Part III of the Constitution
are subject to at least other provisions of the said Part. It is difficult
to comprehend that the framers of the Constitution would have
given such an absolute right to the religious or linguistic minorities,
which would enable them to establish and administer educational
institutions in a manner so as to be in
conflict with the other Parts
of the Constitution. We find it difficult to accept that in the
establishment and administration of educational institutions by the
religious and linguistic minorities, no law of the land, even the
Constitution, is to apply to them.
136. Decisions of this Court have held that the right to administer
does not include the right to maladminister. It has also been held
that the right to administer is not absolute, but must be subject to
reasonable regulations for the benefit of the institutions as the
vehicle of education, consistent with national interest. General
laws of the land applicable to all persons have been held to be
applicable to the minority institutions also — for example, laws
relating to taxation, sanitation, social welfare, economic regulation,
public order and morality.
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137. It follows from the aforesaid decisions that even though the
words of Article 30(1) are unqualified, this Court has held that at
least certain other laws of the land pertaining to health, morality
and standards of education apply. The right under Article 30(1) has,
therefore, not been held to be absolute or above other provisions of
the law, and we reiterate the same. By the same analogy, there is
no reason why regulations or conditions concerning, generally,
the welfare of students and teachers should not be made applicable
in order to provide a proper academic atmosphere, as
such provisions do not in any way interfere with the right of
administration or management under Article 30(1).
138. As we look at it, Article 30(1) is a sort of guarantee or
assurance to the linguistic and religious minority institutions of their
right to establish and administer educational institutions of their
choice. Secularism and equality being two of the basic features
of the Constitution, Article 30(1) ensures protection to the linguistic
and religious minorities, thereby preserving the secularism of the
country. Furthermore, the principles of equality must necessarily
apply to the enjoyment of such rights. No law can be framed that
will discriminate against such minorities with regard to the
establishment and administration of educational institutions 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 SCR173 at SCR p. 192 that: (SCC p. 743,
para 9)
“The whole object of conferring the right on minorities under
Article 30 is to ensure that there will be equality between the
majority and the minority. If the minorities do not have such
special protection they will be denied equality.”
In other words, the essence of Article 30(1) is to ensure equal
treatment between the majority and the minority institutions. No
one type or category of institution should be disfavoured or, for
that matter, receive more favourable treatment than another.Laws
of the land, including rules and regulations, must apply equally to
the majority institutions as well as to the minority institutions. The
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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.
144. It cannot be argued that no conditions can be imposed while
giving aid to a minority institution. Whether it is an institution run
by the majority or the minority, all conditions that have relevance
to the proper utilization of the grant-in-aid by an educational
institution can be imposed. All that Article 30(2) states is that on
the ground that an institution is under the management of a minority,
whether based on religion or language, grant of aid to that
educational institution cannot be discriminated against, if other
educational institutions are entitled to receive aid. The conditions
for grant or non-grant of aid to educational institutions have to be
uniformly applied, whether it is a majority-run institution or a
minority-run institution. As in the case of a majority-run institution,
the moment a minority institution obtains a grant of aid, Article 28 of
the Constitution comes into play. When an educational
institution
is maintained out of State funds, no religious instruction can be
provided therein. Article 28(1) does not state that it applies only
to educational institutions that are not established or maintained
by religious or linguistic minorities. Furthermore, upon
the receipt ofaid, the provisions of Article 28(3) would apply to all
educational institutions whether run by the minorities or the non-
minorities. Article 28(3) is the right of a person studying in a State-
recognized institution or in an educational institution receiving aid
from State funds, not to take part in any religious instruction, if
imparted by such institution, without his/her consent (or his/her
guardian’s consent if such a person is a minor). Just as
Articles 28(1) and (3) become applicable the moment any
educational institution takes aid, likewise, Article 29(2) would also
be attracted and become applicable to an educational institution
maintained by the State or receiving aid out of State funds. It was
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strenuously contended that the right to give admission is one of
the essential ingredients of the right to administer conferred on
the religious or linguistic minority, and that this right should not be
curtailed in any manner. It is difficult to accept this contention. If
Articles 28(1) and (3) apply to a minority institution that receives
aid out of State funds, there is nothing in the language of
Article 30 that would make the provisions of Article 29(2)
inapplicable. Like Article 28(1) and Article 28(3), Article 29(2) 
refers to ”any educational institution maintained by the State or
receiving aid out of State funds”. A minority institution would fall
within the ambit of Article 29(2) in the same manner in which
Article 28(1) and Article 28(3) would be applicable to an aided
minority institution. It is true that one of the rights to administer an
educational institution is to grant admission to the students. As
long as an educational institution, whether belonging to the minority
or the majority community, does not receive aid, it would, in our
opinion, be its right and discretion to grant admission to such students
as it chooses or selects subject to what has been clarified before.
Out of the various rights that the minority institution has in the
administration of the institution, Article 29(2) curtails the right to
grant admission to a certain extent. By virtue of Article 29(2), no
citizen can be denied admission by an aided minority institution on
the grounds only of religion, race, caste, language or any of them.
It is no doubt true that Article 29(2) does curtail one of the powers
of the minority institution, but on receiving aid, some of the rights
that an unaided minority institution has, are also curtailed by
Articles 28(1) and 28(3). A minority educational institution has a
right to impart religious instruction — this right is taken away by
Article 28(1), if that minority institution is maintained wholly out
of State funds. Similarly on receiving aid out of State funds or on
being recognized by the State, the absolute right of a minority
institution requiring a student to attend religious instruction is
curtailed by Article 28(3). If the curtailment of the right to
administer a minority institution on receiving aid or being wholly
maintained out of State funds as provided by Article 28 is valid,
there is no reason why Article 29(2) should not be held to be
applicable. There is nothing in the language of Articles 28(1) and
(3), Article 29(2) and Article 30 to suggest that, on receiving aid,
Articles 28(1) and (3) will apply, but Article 29(2) will
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not. Therefore, the contention that the institutions covered by
Article 30 are outside the injunction of Article 29(2) cannot be
accepted.
151. The right of the aided minority institution to preferably admit
students of its community, when Article 29(2) was applicable, has
been clarified by this Court over a decade ago in St. Stephen’s
College case, (1992) 1 SCC 558. While upholding the procedure
for admitting students, this Court also held that aided minority
educational institutions were entitled to preferably admit their
community candidates so as to maintain the minority character of
the institution, and that the State may regulate the intake in this
category with due regard to the area that the institution was
intended to serve, but that this intake should not be more than
50% in any case. Thus, St. Stephen’s endeavoured to strike a
balance between the two articles. Though we accept the ratio of St.
Stephen’s which has held the field for over a decade, we have
compelling reservations in accepting the rigid percentage stipulated
therein. As Article 29 and Article 30 apply not only to institutions
of higher education but also to schools, a ceiling of 50% would not
be proper. It will be more appropriate that, depending upon the
level of the institution, whether it be a primary or secondary or
high school or a college, professional or otherwise, and on the
population and educational needs of the area in which the
institution
is to be located, the State properly balances the interests of all by
providing for such a percentage of students of the minority 
community to be admitted, so as to adequately serve the interest
of the community for which the institution was established.
152. At the same time, the admissions to aided institutions, whether
awarded to minority or non-minority students, cannot be at the
absolute sweet will and pleasure of the management of minority
educational institutions. As the regulations to promote academic
excellence and standards do not encroach upon the guaranteed
rights Under Article 30, the aided minority educational institutions
can be required to observe inter se merit amongst the eligible
minority applicants and passage of common entrance test by the
candidates, where there is one, with regard to admissions in
professional and non-professional colleges. If there is no such
test, a rational method of assessing comparative merit has to be
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evolved. As regards the non-minority segment, admission may be
on the basis of the common entrance test and counselling by a
State agency. In the courses for which such a test and counselling
are not in vogue, admission can be on the basis of relevant criteria
for the determination of merit. It would be open to the State
authorities to insist on allocating a certain percentage of seats to
those belonging to weaker sections of society, from amongst the
non-minority seats.
Answers to eleven questions
Q. 1. ***
A. ***
Q. 2. ***
A. ***
Q. 3.(a) ***
A. ***
Q. 3. (b) To what extent can professional education be treated as
a matter coming under minorities’ rights under Article 30?
A. Article 30(1) gives religious and linguistic minorities the right to
establish and administer educational institutions of their choice.
The use of the words “of their choice” indicates that even
professional educational institutions would be covered by Article
30.
Q. 4. Whether the admission of students to minority educational
institution, whether aided or unaided, can be regulated by the State
Government or by the university to which the institution is affiliated?
A. Admission of students to unaided minority educational
institutions viz. schools and undergraduate colleges where the
scope for 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
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Government or the university may not be entitled to interfere with
that right, so long as the admission to the unaided educational
institutions is on a transparent basis and the merit is adequately
taken care of. The right to administer, not being absolute, there
could be regulatory measures for ensuring educational standards
and maintaining excellence thereof, and it is more so in the matter
of admissions to professional institutions.
…
Q.5. (a) Whether the minorities’s rights to establish and administer
educational institutions of their choice will include the procedure
and method of admission and selection of students?
A. A minority institution may have its own procedure and method
of admission as well as selection of students, but such a procedure
must be fair and transparent, and the selection of students in
professional and higher education colleges should be on the basis
of merit. The procedure adopted or selection made should not be
tantamount to maladministration. Even an unaided minority
institution ought not to ignore the merit of the students for
admission, while exercising its right to admit students to the colleges
aforesaid, as in that event, the institution will fail to achieve
excellence.
Q.5.(b) ***
A. ***
Q.5. (c) Whether the statutory provisions which regulate the
facets of administration like control over educational agencies,
control over governing bodies, conditions of affiliation including
recognition/withdrawal thereof, and appointment of staff,
employees, teachers and principals including their service conditions
and regulation of fees, etc. would interfere with the right of
administration of minorities?
A. So far as the statutory provisions regulating the facets of
administration are concerned, in case of an unaided minority
educational institution, the regulatory measure of control should
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be minimal and the conditions of recognition as well as the
conditions of affiliation to a university or board have to be complied
with, but in the matter of day-to-day management, like the
appointment of staff, teaching and non-teaching, and administrative
control over them, the management should have the freedom and
there should not be any external controlling agency. However, a
rational procedure for the selection of teaching staff and for taking
disciplinary action has to be evolved by the management itself.
For redressing the grievances of employees of aided and
unaided institutions who are subjected to punishment or termination
from service, a mechanism will have to be evolved, and in our
opinion, appropriate tribunals could be constituted, and till then,
such tribunals could be presided over by a judicial officer of the
rank of District Judge.
The State or other controlling authorities, however, can
always prescribe the minimum qualification, experience and other
conditions bearing on the merit of an individual for being appointed
as a teacher or a principal of any educational institution.
Regulations can be framed governing service conditions for
teaching and other staff for whom aid is provided by the State,
without interfering with the overall administrative control of the
management over the staff.
Fees to be charged by unaided institutions cannot be
regulated but no institution should charge capitation fee.”
(emphasis supplied)
In T.M.A. Pai
Foundation (supra), the Court held that some
system of computing equivalence between different kinds of qualifications
like a common entrance test, would not be in violation of the rights
conferred.The unaided minority institutions under Article 30(1) of the
Constitution of India have the right to admit students, but the merit may
be determined by common entrance test and the rights under Article
30(1) is not absolute so as to prevent the Government from making any
regulations. The Government cannot be prevented from framing
regulations that are in national interest. However, the safeguard is that
the Government cannot discriminate any minority institution and put them
in a disadvantageous positionvis-à-vis to other educational institutions
and has to maintain the concept of equality in real sense. The minority
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institutions must be allowed to do what non-minority institutions are
permitted.It is open to State/concerned bodies to frame regulations with
respect to affiliation and recognition, to provide a proper academic
atmosphere.While answering question no.4, it was held that the
Government or the University can lay down the regulatory measures
ensuring educational standards and maintaining excellence and more so,
in the matter of admission to the professional institutions.  It may not
interfere with the rights so long as the admissions to the unaided minority
institutions are on transparent basis and the merit is adequately taken
care of.
28. In Brahmo Samaj Education Society v. State of West
Bengal, (2004) 6 SCC 224, the Court opined that State can impose such
conditions as are necessary for the proper maintenance of standards of
education and to check maladministration. The decision of T.M.A. Pai
Foundation (supra) was followed in which it was observed that the
State could regulate the method of selection and appointment of teachers
after prescribing requisite qualifications for the same. In Brahmo Samaj
Education Society (supra), it was further opined that the State could
very well provide the basic qualification for teachers. The equal standard
of teachers has been maintained by the NET / SLET.
29. This Court in P.A. Inamdar (supra) also considered the
difference between professional and non-professional educational
institutions, thus:
“104. Article 30(1) speaks of “educational institutions” generally
and so does Article 29(2). These articles do not draw any distinction
between an educational institution dispensing theological education
or professional or non-professional education. However, the terrain
of thought as has developed through successive judicial
pronouncements culminating in Pai Foundation, (2002) 8 SCC
481, is that looking at the concept of education, in the backdrop of
the constitutional provisions, professional educational institutions
constitute a class by themselves as distinguished from educational
institutions imparting non-professional education. It is not necessary
for us to go deep into this aspect of the issue posed before us
inasmuch as Pai Foundation, (2002) 8 SCC 481, has clarified
that merit and excellence assume special significance in the context
of professional studies. Though merit and excellence are not
anathema to non-professional education, yet at that level and due
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to the nature of education which is more general, the need for
merit and excellence therein is not of the degree as is called for in
the context of professional education.
105. Dealing with unaided minority educational institutions, Pai
Foundation, (2002) 8 SCC 481, holds that Article 30 does not
come in the way of the State stepping in for the purpose of securing
transparency and recognition of merit in the matter of admissions.
Regulatory measures for ensuring educational standards and
maintaining excellence thereof are no anathema to the protection
conferred by Article 30(1). However, a distinction is to be drawn
between unaided minority educational institution of the level of
schools and undergraduate colleges on the one side and institutions
of higher education, in particular, those imparting professional
education, on the other side. In the former, the scope for merit-
based selection is practically nil and hence may not call for
regulation. But in the case of the latter, transparency and merit
have to be unavoidably taken care of and cannot be compromised.
There could be regulatory measures for ensuring educational
standards and maintaining excellence thereof. (See para 161,
answer to Question 4, in Pai Foundation,(2002) 8 SCC 481.)
The source of this distinction between two types of educational
institutions referred to hereinabove is to be found in the principle
that right to administer does not include a right to maladminister.
106. S.B. Sinha,
J. has, in his separate opinion in Islamic Academy,
(2003) 6 SCC 697, described (in para 199) the situation as a
pyramid-like situation and suggested the right of minority to be
read along with the fundamental duty. Higher the level of education,
lesser are the seats and higher weighs the consideration for merit.
It will, necessarily, call for more State intervention and lesser say
for the minority.
107. Educational institutions imparting higher education i.e.
graduate level and above and in particular specialised education
such as technical or professional, constitute a separate class. While
embarking upon resolving issues of constitutional significance,
where the letter of the Constitution is not clear, we have to keep
in view the spirit of the Constitution, as spelt out by its entire
scheme. Education aimed at imparting professional or technical
qualifications stands on a different footing from other educational
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instruction. Apart from other provisions, Article 19(6) is a clear
indicator and so are clauses (h) and (j) of Article 51-A. Education
up to the undergraduate level aims at imparting knowledge just to
enrich the mind and shape the personality of a student. Graduate-
level study is a doorway to admissions in educational institutions
imparting professional or technical or other higher education and,
therefore, at that level, the considerations akin to those relevant
for professional or technical educational institutions step in and
become relevant. This is in the national interest and strengthening
the national wealth, education included. Education up to the
undergraduate level on the one hand and education at the graduate
and postgraduate levels and in professional and technical institutions
on the other are to be treated on different levels inviting not identical
considerations, is a proposition not open to any more debate after
Pai Foundation, (2002) 8 SCC 481. A number of legislations
occupying the field of education whose constitutional validity has
been tested and accepted suggest that while recognition or
affiliation may not be a must for education up to undergraduate
level or, even if required, may be granted as a matter of routine,
recognition or affiliation is a must and subject to rigorous scrutiny
when it comes to educational institutions awarding degrees,
graduate or postgraduate, postgraduate diplomas and
degrees in
technical or professional disciplines. Some such legislations are
found referred in paras 81 and 82 of S.B. Sinha, J.’s opinion in
Islamic Academy, (2003) 6 SCC 697.”
Dealing with unaided minority educational institutions in T.M.A.
Pai Foundation (supra), the court observed that Article 30 does not
come in the way of the State stepping in to secure transparency and
recognition of merit in the matter of admissions. Regulatory measures
for ensuring educational standards can be framed. In the case of
professional education, transparency and merit have to be unavoidably
taken care of and cannot be compromised.
30. In Sindhi Education Society and Anr. v. Chief Secretary,
Government of NCT of Delhi and Ors., (2010) 8 SCC 49, the Court
opined that measures to regulate the courses of study, qualifications, and
appointment of teachers, the conditions of employment are germane to
the affiliation of minority institutions. The Court held thus:
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“47. Still another seven-Judge Bench of this Court, in Ahmedabad
St. Xavier’s College Society, (1974) 1 SCC 717, was primarily
concerned with the scope of Articles 29 and 30 of the Constitution,
relating to the rights of minorities to impart general education and
applicability of the concept of affiliation to such institutions. Of
course, the Court held that there was no fundamental right of a
minority institution to get affiliation from a university. When a
minority institution applies to a university to be affiliated, it expresses
its choice to participate in the system of general education and
courses of instructions prescribed by that university, and it agrees
to follow the uniform courses of study. Therefore, measures which
will regulate the courses of study, the qualifications and appointment
of teachers, the conditions of employment of teachers, the health,
hygiene of students and the other facilities are germane to affiliation
of minority institutions.
55. The respondents have placed reliance upon the law stated by
the Bench that any regulation framed in the national interest must
necessarily apply to all educational institutions, whether run by
majority or the minority. Such a limitation must be read into Article
30. The rule under Article 30(1) cannot be such as to override the
national interest or to prevent the Government from framing
regulations in that behalf. It is, of course, true that government
regulations cannot destroy the minority
character of the institution
or make a right to establish and administer a mere illusion; but the
right under Article 30 is not so absolute as to be above the law.
56. The appellant also seeks to derive benefit from the view that
the courts have also held that the right to administer is not absolute
and is subject to reasonable regulations for the benefit of the
institutions as the vehicle of education consistent with the national
interest. Such general laws of the land would also be applicable to
the minority institutions as well. There is no reason why regulations
or conditions concerning generally the welfare of the students
and teachers should not be made applicable in order to provide a
proper academic atmosphere. As such, the provisions do not, in
any way, interfere with the right of administration or management
under Article 30(1). Any law, rule or regulation, that would put the
educational institutions run by the minorities at a disadvantage,
when compared to the institutions run by the others, will have to
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be struck down. At the same time, there may not be any reverse
discrimination.
92. The right under clause (1) of Article 30 is not absolute but
subject to reasonable restrictions which, inter alia, may be framed
having regard to the public interest and national interest of the
country. Regulation can also be framed to prevent maladministration
as well as for laying down standards of education, teaching,
maintenance of discipline, public order, health, morality, etc. It is
also well settled that a minority institution does not cease to be so,
the moment grant-in-aid is received by the institution. An aided
minority educational institution, therefore, would be entitled to have
the right of admission of students belonging to the minority group
and, at the same time, would be required to admit a reasonable
extent of non-minority students, to the extent, that the right in
Article 30(1) is not substantially impaired and further, the citizen’s
right under Article 29(2) is not infringed.”
In Chandana Das (Malakar) v. State of West Bengal and Ors.,
(2015) 12 SCC 140, the Court observed that the Government can frame
the conditions of eligibility for appointment of such teachers,thus:
“21. It is unnecessary to multiply decisions on the subject for the
legal position is well settled. Linguistic institution and religious are
entitled to establish and administer their institutions. Such right of
administration includes the right of
appointing teachers of its choice
but does not denude the State of its power to frame regulations
that may prescribe the conditions of eligibility for appointment of
such teachers. The regulations can also prescribe measures to
ensure that the institution is run efficiently for the right to administer
does not include the right to maladministration. While grant-in-aid
is not included in the guarantee contained in the Constitution to
linguistic and religious minorities for establishing and running their
educational institutions, such grant cannot be denied to such
institutions only because the institutions are established by linguistic
or religious minority. Grant of aid cannot, however, be made
subservient to conditions which deprive the institution of their
substantive right of administering such institutions. Suffice it to
say that once Respondent 4 Institution is held to be a minority
institution entitled to the protection of Articles 26 and 30 of the
Constitution of India the right to appoint teachers of its choice
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who satisfy the conditions of eligibility prescribed for such
appointments under the relevant rules is implicit in their rights to
administer such institutions. Such rights cannot then be diluted by
the State or its functionaries insisting that the appointment should
be made only with the approval of the Director or by following
the mechanism generally prescribed for institutions that do not
enjoy the minority status.”
31. In Modern Dental College and Research Centre (supra),
the Constitution Bench of this Court considered the provisions of Articles
19(1)(g), 19(6), 26 and 30 in relation to the right to freedom of occupation
of private unaided minority and non-minority educational institutions.  This
Court observed that the activity of education is neither trade nor
profession, i.e., commercialisation and profiteering cannot be permitted.
It is open to impose reasonable restrictions in the interest of general
public.  The education cannot be allowed to be a purely economic activity;
it is a welfare activity aimed at achieving more egalitarian and prosperous
society to bring out social transformation and upliftment of the nation.
(a) This Court further opined that private unaided minority and
non-minority institutions have a right to occupation under Article 19(1),
the said right is not absolute and subject to reasonable restriction in larger
public interest of students community to promote merit, achieve excellence
and curb malpractices by holding common
entrance test for admission
and fee structure can undoubtedly be regulated in such institutions.
(b) This Court in Modern Dental College and Research Centre
(supra) also held that unless the admission procedure and fixation of
fees are regulated and controlled at the initial stage, the evil of unfair
practice of granting admission on available seats guided by the paying
capacity of the candidates would be impossible to curb.  The Court also
noted the menace of the fee prevailing in the various educational
professional institutions and in the context of Articles 19(1)(g), 19(6), 30,
41and 47, and considering the Schedule VII, Entry 25  of List III and
Entry 63-66 of List I, this Court held that concerning “professional unaided
minority” and “non-minority institutions”, common entrance test has to
be conducted by the State and regulation of the fee structure by it is
permissible. The Court took note of the large-scale malpractices,
exploitation of students, profiteering, and commercialisation and entrance
examination held by various institutions failing the triple test of having
fair, transparent, and non-exploitative process. The Court held that
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reasonable restriction can be imposed to regulate admission and fee
structure. The Court also observed about statutory functioning of the
healthcare system in the country and the poor functioning of the MCI.
(c) The Court further considered the criteria of proportionality
and emphasised for proper balance between the two facets viz. the
rights and limitations imposed upon it by a statute. The concept of
proportionality is an appropriate criterion.The law imposing restrictions
will be treated as proportional if it is meant to achieve a proper purpose.
If the measures taken to achieve such a goal are rationally connected to
the object, such steps are necessary. The Court considered the concept
of proportionality thus:
“57. It is well settled that the right under Article 19(1)(g) is not
absolute in terms but is subject to reasonable restrictions under
clause (6). Reasonableness has to be determined having regard
to the nature of right alleged to be infringed, purpose of the
restriction, extent of restriction and other relevant factors. In
applying these factors, one cannot lose sight of the directive
principles of State policy. The Court has to try to strike a just
balance between the fundamental rights and the larger interest of
the society. The Court interferes with a statute if it clearly violates
the fundamental rights. The Court proceeds on the footing that
the legislature understands the needs of the people. The
Constitution is primarily for the common man. Larger interest and
welfare of student community to promote merit, achieve excellence
and curb malpractices, fee and admissions can certainly be
regulated.
58. Let us carry out this discussion in some more detail as this is
the central issue raised by the appellants.
Doctrine of proportionality explained and applied
59. Undoubtedly, the right to establish and manage the educational
institutions is a fundamental right recognised under Article 19(1)(g)
of the Act. It also cannot be denied that this right is not “absolute”
and is subject to limitations i.e. “reasonable restrictions” that can
be imposed by law on the exercise of the rights that are conferred
under clause (1) of Article 19. Those restrictions, however, have
to be reasonable. Further, such restrictions should be “in the interest
of general public”, which conditions are stipulated in clause (6) of
Article 19, as under:
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“19. (6) Nothing in sub-clause (g) of the said clause shall
affect the operation of any existing law insofar as it imposes, or
prevent the State from making any law imposing, in the interests
of the general public, reasonable restrictions on the exercise of
the right conferred by the said sub-clause, and, in particular, nothing
in the said sub-clause shall affect the operation of any existing
law insofar as it relates to, or prevent the State from making any
law relating to—
(i) the professional or technical qualifications necessary for
practising any profession or carrying on any occupation, trade or
business, or
(ii) the carrying on by the State, or by a corporation owned
or controlled by the State, of any trade, business, industry or service,
whether to the exclusion, complete or partial, of citizens or
otherwise.”
60. Another significant feature which can be noticed from the
reading of the aforesaid clause is that the State is empowered to
make any law relating to the professional or technical qualifications
necessary for practising any profession or carrying on any
occupation or trade or business. Thus, while examining as to
whether the impugned provisions of the statute and rules amount
to reasonable restrictions and are brought out in the interest of the
general public, the exercise that is required to be undertaken is
the balancing of fundamental right to carry on occupation on the
one hand and the restrictions imposed on the other hand. This is
what is known as “doctrine of proportionality”. Jurisprudentially,
“proportionality” can be defined as the set of rules determining
the necessary and sufficient conditions for limitation of a
constitutionally protected right by a law to be constitutionally
permissible. According to Aharon Barak (former Chief Justice,
Supreme Court of Israel), there are four sub-components of
proportionality which need to be satisfied [Aharon Barak,
Proportionality: Constitutional Rights and Their Limitation
(Cambridge University Press 2012)], a limitation of a constitutional
right will be constitutionally permissible if:
(i) it is designated for a proper purpose;
(ii) the measures undertaken to effectuate such a limitation
are rationally connected to the fulfilment of that purpose;
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(iii) the measures undertaken are necessary in that there
are no alternative measures that may similarly achieve that same
purpose with a lesser degree of limitation; and finally
(iv) there needs to be a proper relation (“proportionality
strictosensu” or “balancing”) between the importance of achieving
the proper purpose and the social importance of preventing the
limitation on the constitutional right.
61. Modern theory of constitutional rights draws a fundamental
distinction between the scope of the constitutional rights, and the
extent of its protection. Insofar as the scope of constitutional rights
is concerned, it marks the outer boundaries of the said rights and
defines its contents. The extent of its protection prescribes the
limitations on the exercises of the rights within its scope. In that
sense, it defines the justification for limitations that can be imposed
on such a right.
62. It is now almost accepted that there are no absolute
constitutional rights and all such rights are related. As per the
analysis of Aharon Barak, two key elements in developing the
modern constitutional theory of recognising positive constitutional
rights along with its limitations are the notions of democracy and
the rule of law. Thus, the requirement of proportional limitations
of constitutional rights by a sub-constitutional law i.e. the statute,
is derived from an interpretation of the notion of democracy itself.
Insofar as the
Indian Constitution is concerned, democracy is
treated as the basic feature of the Constitution and is specifically
accorded a constitutional status that is recognised in the Preamble
of the Constitution itself. It is also unerringly accepted that this
notion of democracy includes human rights which is the
cornerstone of Indian democracy. Once we accept the aforesaid
theory (and there cannot be any denial thereof), as a fortiori, it
has also to be accepted that democracy is based on a balance
between constitutional rights and the public interests. In fact, such
a provision in Article 19 itself on the one hand guarantees some
certain freedoms in clause (1) of Article 19 and at the same time
empowers the State to impose reasonable restrictions on those
freedoms in public interest. This notion accepts the modern
constitutional theory that the constitutional rights are related. This
relativity means that a constitutional licence to limit those rights is
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granted where such a limitation will be justified to protect public
interest or the rights of others. This phenomenon—of both the
right and its limitation in the Constitution—exemplifies the inherent
tension between democracy’s two fundamental elements. On the
one hand is the right’s element, which constitutes a fundamental
component of substantive democracy; on the other hand is the
people element, limiting those very rights through their
representatives. These two constitute a fundamental component
of the notion of democracy, though this time in its formal aspect.
How can this tension be resolved? The answer is that this tension
is not resolved by eliminating the “losing” facet from the
Constitution. Rather, the tension is resolved by way of a proper
balancing of the competing principles. This is one of the expressions
of the multi-faceted nature of democracy. Indeed, the inherent
tension between democracy’s different facets is a “constructive
tension”. It enables each facet to develop while harmoniously
coexisting with the others. The best way to achieve this peaceful
coexistence is through balancing between the competing interests.
Such balancing enables each facet to develop alongside the other
facets, not in their place. This tension between the two
fundamental aspects—rights on the one hand and its limitation on
the other hand—is to be resolved by balancing the two so that
they harmoniously coexist with each other. This balancing is to be
done
keeping in mind the relative social values of each competitive
aspects when considered in proper context.
63. In this direction, the next question that arises is as to what
criteria is to be adopted for a proper balance between the two
facets viz. the rights and limitations imposed upon it by a statute.
Here comes the concept of “proportionality”, which is a proper
criterion. To put it pithily, when a law limits a constitutional right,
such a limitation is constitutional if it is proportional. The law
imposing restrictions will be treated as proportional if it is meant
to achieve a proper purpose, and if the measures taken to achieve
such a purpose are rationally connected to the purpose, and such
measures are necessary. This essence of doctrine of proportionality
is beautifully captured by Dickson, C.J. of Canada in R. v. Oakes,
(1986) 1 SCR 103 (Can SC) in the following words (at p. 138):
“To establish that a limit is reasonable and demonstrably justified
in a free and democratic society, two central criteria must be
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satisfied. First, the objective, which the measures, responsible
for a limit on a Charter right or freedom are designed to serve,
must be “of” sufficient importance to warrant overriding a
constitutional protected right or freedom … Second … the party
invoking Section 1 must show that the means chosen are
reasonable and demonstrably justified. This involves “a form
of proportionality test…” Although the nature of the
proportionality test will vary depending on the circumstances,
in each case courts will be required to balance the interests of
society with those of individuals and groups. There are, in my
view, three important components of a proportionality test. First,
the measures adopted must be … rationally connected to the
objective. Second, the means … should impair “as little as
possible” the right or freedom in question … Third, there must
be a proportionality between the effects of the measures which
are responsible for limiting the Charter right or freedom, and
the objective which has been identified as of “sufficient
importance”. The more severe the deleterious effects of a
measure, the more important the objective must be if the
measure is to be reasonable and demonstrably justified in a
free and democratic society.”
64. The exercise which, therefore, is to be taken is to find out as
to whether the limitation of constitutional rights is for a purpose
that is reasonable and necessary in a democratic society
and such
an exercise involves the weighing up of competitive values, and
ultimately an assessment based on proportionality i.e. balancing
of different interests.”
(d) In Modern Dental College and Research Centre (supra),
the Court, while dealing with reasonable restriction on rights under Article
19 observed:
“65. We may unhesitatingly remark that this doctrine of
proportionality, explained hereinabove in brief, is enshrined in Article
19 itself when we read clause (1) along with clause (6) thereof.
While defining as to what constitutes a reasonable restriction, this
Court in a plethora of judgments has held that the expression
“reasonable restriction” seeks to strike a balance between the
freedom guaranteed by any of the sub-clauses of clause (1) of
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Article 19 and the social control permitted by any of the clauses
(2) to (6). It is held that the expression “reasonable” connotes
that the limitation imposed on a person in the enjoyment of the
right should not be arbitrary or of an excessive nature beyond
what is required in the interests of public. Further, in order to be
reasonable, the restriction must have a reasonable relation to the
object which the legislation seeks to achieve, and must not go in
excess of that object (see P.P. Enterprises v. Union of India,
(1982) 2 SCC 33). At the same time, reasonableness of a restriction
has to be determined in an objective manner and from the
standpoint of the interests of the general public and not from the
point of view of the persons upon whom the restrictions are imposed
or upon abstract considerations (see Mohd. Hanif Quareshi v.
State of Bihar, AIR 1958 SC 731). In M.R.F. Ltd. v. State of
Kerala, (1998) 8 SCC 227, this Court held that in examining the
reasonableness of a statutory provision one has to keep in mind
the following factors:
(1) The directive principles of State policy.
(2) Restrictions must not be arbitrary or of an excessive
nature so as to go beyond the requirement of the interest of the
general public.
(3) In order to judge the reasonableness of the restrictions,
no abstract or general pattern or a fixed principle can be laid
down so as to be of universal application and the same will vary
from case to case as also with regard to
changing conditions,
values of human life, social philosophy of the Constitution, prevailing
conditions and the surrounding circumstances.
(4) A just balance has to be struck between the restrictions
imposed and the social control envisaged by Article 19(6).
(5) Prevailing social values as also social needs which are
intended to be satisfied by the restrictions.
(6) There must be a direct and proximate nexus or
reasonable connection between the restrictions imposed and the
object sought to be achieved. If there is a direct nexus between
the restrictions, and the object of the Act, then a strong presumption
in favour of the constitutionality of the Act will naturally arise.”
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(e) Concerning necessity of regulatory framework, the Court
opined:
“85. No doubt, we have entered into an era of liberalisation of the
economy, famously termed as “globalisation” as well. In such an
economy, private players are undoubtedly given much more
freedom in economic activities, as the recognition has drawn to
the realities that the economic activities, including profession,
business, occupation, etc. are not normal forte of the State and
the State should have minimal role therein. It is for this reason,
many sectors which were hitherto State monopolies, like telecom,
power, insurance, civil aviation, etc. have now opened up for private
enterprise. Even in the field of education the State/Government
was playing a dominant role inasmuch as it was thought desirable
that in a welfare State it is the fundamental duty, as a component
of directive principles, to impart education to the masses and
commoners as well as weaker sections of the society, at affordable
rates. It was almost treated as solemn duty of the Government to
establish adequate number of educational institutions at all levels
i.e. from primary level to higher education and in all fields including
technical, scientific and professional, to cater to the varied sections
of the society, particularly, when one-third of the population of the
country is poverty-stricken with large percentage as illiterate. With
liberalisation, the Government has
encouraged establishments of
privately managed institutions. It is done with the hope that the
private sector will play vital role in the field of education with
philanthropic approach/ideals in mind as this activity is not to be
taken for the purpose of profiteering, but more as a societal
welfare.
86. It is, therefore, to be borne in mind that the occupation of
education cannot be treated on a par with other economic
activities. In this field, the State cannot remain a mute spectator
and has to necessarily step in in order to prevent exploitation,
privatisation and commercialisation by the private sector. It would
be pertinent to mention that even in respect of those economic
activities which are undertaken by the private sector essentially
with the objective of profit-making (and there is nothing bad about
it), while throwing open such kind of business activities in the
hands of private sector, the State has introduced regulatory regime
as well by providing regulations under the relevant statutes.
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89. With the advent of globalisation and liberalisation, though the
market economy is restored, at the same time, it is also felt that
market economies should not exist in pure form. Some regulation
of the various industries is required rather than allowing self-
regulation by market forces. This intervention through regulatory
bodies, particularly in pricing, is considered necessary for the
welfare of the society and the economists point out that such
regulatory economy does not rob the character of a market
economy which still remains a market economy. Justification for
regulatory bodies even in such industries managed by private
sector lies in the welfare of people. Regulatory measures are felt
necessary to promote basic well being for individuals in need. It is
because of this reason that we find regulatory bodies in all vital
industries like, insurance, electricity and power,
telecommunications, etc.
90. Thus, it is felt that in any welfare economy, even for private
industries, there is a need for regulatory body and such a regulatory
framework for education sector becomes all the more necessary.
It would be more so when, unlike other industries,
commercialisation of education is not permitted as mandated by
the Constitution of India, backed by various judgments of this Court
to the effect that profiteering in the education is to be avoided.”
(f) The Court heldthat the regulatory mechanism for centralised
examination is legal and constitutional and
does not infringe on the
fundamental rights of the minority or non-minority to establish and
administer educational institutions. It observed:
“57. It is well settled that the right under Article 19(1)(g) is not
absolute in terms but is subject to reasonable restrictions under
clause (6). Reasonableness has to be determined having regard
to the nature of right alleged to be infringed, purpose of the
restriction, extent of restriction and other relevant factors. In
applying these factors, one cannot lose sight of the directive
principles of State policy. The Court has to try to strike a just
balance between the fundamental rights and the larger interest of
the society. The Court interferes with a statute if it clearly violates
the fundamental rights. The Court proceeds on the footing that
the legislature understands the needs of the people. The
Constitution is primarily for the common man. Larger interest and
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welfare of student community to promote merit, achieve excellence
and curb malpractices, fee and admissions can certainly be
regulated.
“97. The very object of setting up institutions for the State is a
welfare function, for the purpose of excelling in educational
standards. On the other hand, the primary motivation for private
parties is profit motive or philanthropy. When the primary
motivation for institutions is profit motive, it is natural that many
means to achieve the same shall be adopted by the private
institutions which leads to a large degree of secrecy and corruption.
As such, the mechanism of regulations as envisaged under the
impugned laws is legal, constitutional, fair, transparent and uphold
the primary criteria of merit. The same does not infringe on the
fundamental rights of either the minorities or the non-minorities to
establish and administer educational institutions and must as such
be upheld as valid.”
(g) The Court also took note of prevailing situation of corruption
in the field of education and commercialisation of education thus:
“68. We are of the view that the larger public interest warrants
such a measure. Having regard to the malpractices which are
noticed in the CET conducted by such private institutions
themselves, for which plethora of material is produced, it is,
undoubtedly, in the larger interest and welfare of the student
community to promote merit, add excellence and curb
malpractices. The extent of restriction has to be viewed keeping
in view all these factors and, therefore, we feel that the impugned
provisions which may amount to “restrictions” on the right of the
appellants to carry on their “occupation”, are clearly “reasonable”
and satisfied the test of proportionality.”
86. It is, therefore, to be borne in mind that the occupation of
education cannot be treated on a par with other economic
activities. In this field, the State cannot remain a mute spectator
and has to necessarily step in in order to prevent exploitation,
privatisation and commercialisation by the private sector. It would
be pertinent to mention that even in respect of those economic
activities which are undertaken by the private sector essentially
with the objective of profit-making (and there is nothing bad about
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it), while throwing open such kind of business activities in the
hands of private sector, the State has introduced regulatory regime
as well by providing regulations under the relevant statutes.
96. As is evident from the facts mentioned by the State of Madhya
Pradesh in its reply filed in IA No. 83 of 2015, the Association of
Private Colleges has failed to hold their CETs in a fair, transparent
and rational manner. The accountability and transparency in State
actions is much higher than in private actions. It is needless to say
that the incidents of corruption in the State machinery were brought
in the public eye immediately and have been addressed
expeditiously. The same could never have been done in case of
private actions. Even on a keel of comparative efficiency, it is
more than evident that the State process is far more transparent
and fair than one that is devised by the private colleges which
have no mechanism of any checks and balances. The State
agencies are subject to the Right to Information Act, audit, State
Legislature, anti-corruption agencies, Lokayukta, etc.
172. Maintenance and improvement of public health and to provide
health care and medical services is the constitutional obligation of
the State. To discharge this constitutional obligation, the State must
have the doctors with professional excellence and commitment
who are ready to give medical advice and services to the public at
large. The State can satisfactorily discharge its
constitutional
obligation only when the aspiring students enter into the profession
based on merit. None of these lofty ideals can be achieved without
having good and committed medical professionals.
190. For the foregoing discussion, I hold that the State has the
legislative competence to enact the impugned legislation—the 2007
Act to hold common entrance test for admission to professional
educational institutions and to determine the fee and the High
Court has rightly upheld the validity of the impugned legislation.
Regulations sought to be imposed by the impugned legislation on
admission by common entrance test conducted by the State and
determination of fee are in compliance of the directions and
observations in T.M.A. Pai, (2002) 8 SCC 481, Islamic Academy
of Education, (2003) 6 SCC 697 and P.A. Inamdar, (2005) 6
SCC 537. Regulations on admission process are necessary in the
larger public interest and welfare of the student community to
CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION
v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]
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ensure fairness and transparency in the admission and to promote
merit and excellence. Regulation on fixation of fee is to protect
the rights of the students in having access to higher education
without being subjected to exploitation in the form of profiteering.
With the above reasonings, I concur with the majority view in
upholding the validity of the impugned legislation and affirm the
well-merited decision of the High Court.”
(h) The Court in Modern Dental College and Research Centre
(supra) while considering the decision in T.M.A. Pai Foundation (supra)
opined that Court did not give complete freedom to admit the students
and also as to fixation of fee. Admission has to be based on merit,
particularly in professional educational institutions. This Court observed
thus:
“34. In the modern age, therefore, particularly after the policy of
liberalisation adopted by the State, educational institutions by private
bodies are allowed to be established. There is a paradigm shift
over from the era of complete government control over education
(like other economic and commercial activities) to a situation
where private players are allowed to mushroom. But at the same
time, regulatory mechanism is provided thereby ensuring that such
private institutions work within such regulatory regime. When it
comes to education, it is expected that unaided private institutions
provide quality education and at the same time they are given
“freedom in joints” with minimal Government interference, except
what comes under regulatory regime. Though education is now
treated as an “occupation” and, thus, has become a fundamental
right guaranteed under Article 19(1)(g) of the Constitution, at the
same time shackles are put insofar as this particular occupation is
concerned which is termed as “noble”. Therefore, profiteering
and commercialisation are not permitted and no capitation fee
can be charged. The admission of students has to be on merit and
not at the whims and fancies of the educational institutions. Merit
can be tested by adopting some methodology and few such methods
are suggested in T.M.A. Pai Foundation, (2002) 8 SCC 481,
which includes holding of CET. It is to be ensured that this
admission process meets the triple test of transparency, fairness
and non-exploitativeness.
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37. Insofar as the first part of the question is concerned, it does
not pose any problem and the answer goes in favour of the
appellants. We may recapitulate here that Article 26 of the
Constitution gives freedom to every religious denomination or any
section thereof by conferring certain rights which include right to
establish and maintain institutions for religious and charitable
purposes. Thus, insofar as religious denominations or any section
thereof are concerned, they were given right to establish and
maintain institutions for religious and charitable purposes making
it a fundamental right. Likewise, Article 30 confers upon minorities
fundamental right to establish and administer educational
institutions. Insofar as Article 26 is concerned, it comes under the
caption “Right to Freedom of Religion”. As far as Article 30 is
concerned, it is under the heading “Cultural and Educational
Rights”. Thus, rights of the minorities to establish and administer
educational institutions were always recognised as fundamental
rights. Further, the right of private unaided professional institutions
to establish and manage educational institutions was not clearly
recognised as a fundamental right covered under Article 19(1)(g)
and categorically rejected by the Constitution Bench of this Court
comprising of five Judges in Unni Krishnan, (1993) 1 SCC 645.
It was held in para 198 of the judgment that: (SCC p. 752)
“198. [w]e are, therefore, of the opinion, adopting the
line of
reasoning in State of Bombay v. R.M.D. Chamarbaugwala,
AIR 1957 SC 699, that imparting education cannot be treated
as a trade or business. Education cannot be allowed to be
converted into commerce nor can petitioners seek to obtain
the said result by relying upon the wider meaning of
“occupation”.”
38. In Unni Krishnan case, (1993) 1 SCC 645, this Court also
rejected the argument that the said activity could be classified as a
“profession”. However, the right of professional institutions to establish
and manage educational institutions was finally regarded as an
“occupation” befitting the recognition of this right as a fundamental
right under Article 19(1)(g) in T.M.A. Pai Foundation, (2002) 8 SCC
481, in the following words: (SCC p. 535, para 25)
“25. The establishment and running of an educational institution
where a large number of persons are employed as teachers or
CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION
v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]