P A Inamdar & others Vs State of Maharashtra

 

 

CASE NO.: Appeal (civil) 5041 of 2005

PETITIONER: P.A. Inamdar & Ors.

RESPONDENT: State of Maharashtra & Ors.

DATE OF JUDGMENT: 12/08/2005

BENCH: CJI R.C. LAHOTI Y.K. SABHARWAL D.M. DHARMADHIKARI ARUN KUMAR,G.P. MATHUR,TARUN CHATTERJEE & P.K. BALASUBRAMANYAN

JUDGEMENT: JUDGEMENT GIVEN BY CJI R.C. LAHOTI,Y.K. SABHARWAL,D.M. DHARMADHIKARI,ARUN KUMAR,G.P. MATHUR,TARUN CHATTERJEE & P.K. BALASUBRAMANYAN

(Arising out of Special Leave Petition (C) No.9932 of 2004)
WITH Civil Appeal No. 5042 of 2005 (@ SLP(C) No.9935/2004); Civil Appeal No. 5043 of 2005 (@ SLP(C) No. 9936/2004); W.P. (C) No. 276/2004; W.P. (C) No. 330/2004; W.P. (C) No. 357/2004; I.A. NOS. 26, 27, 30, 31 AND 33 IN W.P. (C) No.350/1993; Civil Appeal No. 5035 of 2005 (@ SLP(C) No.11244/2004; W.P.(C) No. 302/204; W.P. (C) No. 347/2004; W.P. (C) No. 349/2004; W.P. (C) No. 350/2004; W.P. (C) No. 387/2004; W.P. (C) No. 423/2004; W.P. (C) No. 480/2004; W.P. (C) No. 19/2005; W.P. (C) No. 261/2004; W.P. (C) No. 265/2004; W.P. (C) No. 380/2004; W.P. (C) No. 358/2004; W.P. (C) No. 359/2004; W.P. (C) No. 360/2004; W.P. (C) No.361/2004; W.P. (C) No. 362/2004; W.P. (C) No. 363/2004; C.A. No. 5257-5258/2004; C.A. No. 5259/2004; C.A. No. 5260-5261/2004; C.A. No. 5262-
5263/2004; C.A. No. 5996/2004; C.A. No. 5992/2004; C.A. No. 5997-5998/2004; C.A. No. 7969-7971/2004; C.A. No. 7972/2004; C.A. No. 7973/2004; C.A. No. 7974/2004; C.A. No. 7975/2004; W.P. (C) No. 371/2004; W.P. (C) No. 368/2004; C.A. No. 7117-7119/2004; C.A. No. 7124-7126/2004; CONMT.PET. (CIVIL) No. 561-563/2004 In C.A. No. 7117-7119/2004; CONMT. PET. (Civil) No. 564-566/2004 in C.A. No. 7124-7126/2004; W.P. (C) No. 251/2004; Civil Appeal No. 5036 of 2005 (@ SLP (C) No. 17464/2004); Civil Appeal No. 5037 of 2005 (@ SLP (C) No. 17549/2004); W.P. (C) No. 318/2004; Civil Appeal No. 5038 of 2005 (@ SLP(C) No. 17930/2004; Civil Appeal No. 5039 of 2005 (@ SLP (C) No.
17931/2004); Civil Appeal No. 5040 of 2005 (@ SLP (C) No. 17326/2003); W.P. (C) No. 386/2004; W.P. (C) No. 397/2004


R.C. Lahoti, CJI

Preliminary
Leave granted in all SLPs.

A Coram of 11 Judges, not a common feature in the Supreme Court of India, sat to hear and decide T.M.A.Pai Foundation v. State of Karnataka (2002) 8 SCC 481 (hereinafter 'Pai Foundation', for short). It was expected that the authoritative pronouncement by a Bench of such strength on the issues arising before it would draw a final curtain on those controversies. The subsequent events tell a different story. A learned academician observes that the 11-Judge Bench decision in Pai Foundation is a partial response to some of the challenges posed by the impact of Liberalisation, Privatisation and Globalisation (LPG); but the question whether that is a satisfactory response, is indeed debatable. It was further pointed out that 'the decision raises more questions than it has answered' (see : Annual Survey of Indian Law, 2002 at p.251, 254). The Survey goes on to observe "the principles laid down by the majority in Pai Foundation are so broadly formulated that they provide sufficient leeway to subsequent courts in
applying those principles while the lack of clarity in the judgment allows judicial creativity " (ibid at p.256).

The prophecy has come true and while the ink on the
opinions in Pai Foundation was yet to dry, the High Courts
were flooded with writ petitions, calling for settlements of
several issues which were not yet resolved or which propped on
floor, post Pai Foundation. A number of Special Leave
Petitions against interim orders passed by High Courts and a few
writ petitions came to be filed directly in this Court. A
Constitution Bench sat to interpret the 11-Judge Bench decision
in Pai Foundation which it did vide its judgment dated
14.8.2003 (reported as - Islamic Academy of Education &
Anr. v. State of Karnataka & Ors., (2003) 6 SCC 697;
"Islamic Academy" for short). The 11 learned Judges
constituting the Bench in Pai Foundation delivered five
opinions. The majority opinion on behalf of 6 Judges was
delivered by B.N. Kirpal, CJ. Khare, J (as His Lordship then was)
delivered a separate but concurring opinion, supporting the
majority. Quadri, J, Ruma Pal, J and Variava, J (for himself and
Bhan, J) delivered three separate opinions partly dissenting from
the majority. Islamic Academy too handed over two opinions.
The majority opinion for 4 learned Judges has been delivered by
V.N. Khare, CJ. S.B. Sinha, J, has delivered a separate opinion.
The events following Islamic Academy judgment show
that some of the main questions have remained unsettled even
after the exercise undertaken by the Constitution Bench in
Islamic Academy in clarification of the 11-Judge Bench
decision in Pai Foundation. A few of those unsettled questions
as also some aspects of clarification are before us calling for
settlement by this Bench of 7 Judges which we hopefully propose
to do.

Pai Foundation and Islamic Academy have set out the
factual backdrop of the issues leading to the formulation of 11-
Judge and 5-Judge Benches respectively. For details thereof a
reference may be made to the reported decisions. A brief
summary of the past events, highlighting the issues as they have
travelled in search of resolution would be apposite.
II
BACKDROP

Education used to be charity or philanthropy in good old
times. Gradually it became an 'occupation'. Some of the
Judicial dicta go on to hold it as an 'industry'. Whether, to
receive education, is a fundamental right or not has been
debated for quite some time. But it is settled that establishing
and administering of an educational institution for imparting
knowledge to the students is an occupation, protected by Article
19(1)(g) and additionally by Article 26(a), if there is no element
of profit generation. As of now, imparting education has come
to be a means of livelihood for some professionals and a mission
in life for some altruists.

Education has since long been a matter of litigation. Law
reports are replete with rulings touching and centering around
education in its several aspects. Until Pai Foundation, there
were four oft quoted leading cases holding the field of education.
They were Unni Krishnan v. State of Andhra Pradesh (1993)
1 SCC 645, St. Stephen's College v. University of Delhi
(1992)1 SCC 558, Ahmedabad St. Xavier's College Society
v. State of Gujarat (1974)1 SCC 717 and In Re: Kerala
Education Bill, 1957, (1958) SCR 995. For convenience sake,
these cases will be referred to as Unni Krishnan, St.
Stephen's, St. Xavier's and Kerala Education Bill
respectively. All these cases amongst others came up for the
consideration of this Court in Pai Foundation.

Correctness of the decision in St. Stephen's was doubted
during the course of hearing of Writ Petition No. 350 of 1993
filed by Islamic Academy. As St. Stephen's is a
pronouncement of 5-Judge Bench, the matter was directed to
be placed before 7-Judge Bench.

An event of constitutional significance which had already
happened, was taken note of by the Constitution Bench.
"Education" was a State Subject in view of the following Entry 11
placed in List II ___ State List:-

"11. Education including universities,
subject to the provisions of entries 63,
64, 65 and 66 of List I and entry 25 of
List III."

By the Constitution (42nd Amendment) Act 1976, the
abovesaid Entry was directed to be deleted and instead Entry 25
in List III Concurrent List, was directed to be suitably amended
so as to read as under:-

"25. Education, including technical
education, medical education and
universities, subject to the provisions of
entries 63, 64, 65 and 66 of List I;
vocational and technical training of
labour."

The 7-Judge Bench felt that the matter called for hearing
by a 11-Judge Bench. The 11-Judge Bench felt that it was not
bound by the ratio propounded in Kerala Education Bill and
St. Xavier's and was free to hear the case in wider perspective
so as to discern the true scope and interpretation of Article 30(1)
of the Constitution and make an authoritative pronouncement.

Eleven Questions and Five Heads of Issues in Pai
Foundation

In Pai Foundation, 11 questions were framed for being
answered. Detailed submissions were made centering around
the 11 questions. The Court dealt with the questions by
classifying the discussion under the following five heads:

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

Having dealt with each of the abovesaid heads, the Court
through the majority opinion expressed by B.N. Kirpal, CJ,
recorded answers to the 11 questions as they were framed and
posed for resolution. The questions and the answers as given by
the majority are set out hereunder:

"Q.1. What is the meaning and content of the expression
"minorities" in Article 30 of the Constitution of India?

A. Linguistic and religious minorities are covered by the
expression "minority" under Article 30 of the Constitution. Since
reorganization of the States in India has been on linguistic lines,
therefore, for the purpose of determining the minority, the unit
will be the State and not the whole of India. Thus, religious and
linguistic minorities, who have been put on a par in Article 30,
have to be considered Statewise.

Q.2. What is meant by the expression "religion" in Article
30(1)? Can the followers of a sect or denomination of a
particular religion claim protection under Article 30(1) on the
basis that they constitute a minority in the State, even though
the followers of that religion are in majority in that State?

A. This question need not be answered by this Bench; it will be
dealt with by a regular Bench.

Q.3 (a) What are the indicia for treating an educational
institution as a minority educational institution? Would an
institution be regarded as a minority educational institution
because it was established by a person(s) belonging to a
religious or linguistic minority or its being administered by a
person(s) belonging to a religious or linguistic minority?

A. This question need not be answered by this Bench; it will be
dealt with by a regular Bench.

Q.3(b) To what extent can professional education be treated as
a matter coming under minorities' rights under Article 30?

A. Article 30(1) gives religious and linguistic minorities the right
to establish and administer educational institutions of their
choice. The use of the words "of their choice" indicates that
even professional educational institutions would be covered by
Article 30.

Q.4. Whether the admission of students to minority educational
institution, whether aided or unaided, can be regulated by the
State Government or by the university to which the institution is
affiliated?

A. Admission of students to unaided minority educational
institutions viz. schools and undergraduate colleges where the
scope for merit-based selection is practically nil, cannot be
regulated by the State or university concerned, except for
providing the qualifications and minimum conditions of eligibility
in the interest of academic standards. [emphasis by us]

The right to admit students being an essential facet of the
right to administer educational institutions of their choice, as
contemplated under Article 30 of the Constitution, the State
Government or the university may not be entitled to interfere
with that right, so long as the admission to the unaided
educational institutions is on a transparent basis and the merit is
adequately taken care of. The right to administer, not being
absolute, there could be regulatory measures for ensuring
educational standards and maintaining excellence thereof, and it
is more so in the matter of admissions to professional
institutions. [emphasis by us]

A minority institution does not cease to be so, the moment
grant-in-aid is received by the institution. An aided minority
educational institution, therefore, would be entitled to have the
right of admission of students belonging to the minority group
and at the same time, would be required to admit a reasonable
extent of non-minority students, so that the rights under Article
30(1) are not substantially impaired and further the citizens'
rights under Article 29(2) are not infringed. What would be a
reasonable extent, would vary from the types of institution, the
courses of education for which admission is being sought and
other factors like educational needs. The State Government
concerned has to notify the percentage of the non-minority
students to be admitted in the light of the above observations.
Observance of inter se merit amongst the applicants belonging
to the minority group could be ensured. In the case of aided
professional institutions, it can also be stipulated that passing of
the common entrance test held by the State agency is necessary
to seek admission. As regards non-minority students who are
eligible to seek admission for the remaining seats, admission
should normally be on the basis of the common entrance test
held by the State agency followed by counselling wherever it
exists.

Q.5(a) Whether the minorities' rights to establish and
administer educational institutions of their choice will include the
procedure and method of admission and selection of students?

A. A minority institution may have its own procedure and
method of admission as well as selection of students, but such a
procedure must be fair and transparent, and the selection of
students in professional and higher education colleges should be
on the basis of merit. The procedure adopted or selection made
should not be tantamount to mal-administration. Even an
unaided minority institution ought not to ignore the merit of the
students for admission, while exercising its right to admit
students to the colleges aforesaid, as in that event, the
institution will fail to achieve excellence.

Q.5(b) Whether the minority institutions' right of admission of
students and to lay down procedure and method of admission, if
any, would be affected in any way by the receipt of State aid?

A. While giving aid to professional institutions, it would be
permissible for the authority giving aid to prescribe bye __ rules
or regulations, the conditions on the basis of which admission
will be granted to different aided colleges by virtue of merit,
coupled with the reservation policy of the State qua non-minority
students. The merit may be determined either through a
common entrance test conducted by the university or the
Government concerned followed by counselling, or on the basis
of an entrance test conducted by the individual institutions the
method to be followed is for the university or the Government to
decide. The authority may also devise other means to ensure
that admission is granted to an aided professional institution on
the basis of merit. In the case of such institutions, it will be
permissible for the Government or the university to provide that
consideration should be shown to the weaker sections of the
society.

Q.5(c) Whether the statutory provisions which regulate the
facets of administration like control over educational agencies,
control over governing bodies, conditions of affiliation including
recognition/withdrawal thereof, and appointment of staff,
employees, teachers and principals including their service
conditions and regulation of fees, etc. would interfere with the
right of administration of minorities?

A. So far as the statutory provisions regulating the facets of
administration are concerned, in case of an unaided minority
educational institution, the regulatory measure of control should
be minimal and the conditions of recognition as well as the
conditions of affiliation to a university or board have to be
complied with, but in the matter of day-to-day management, like
the appointment of staff, teaching and non-teaching, and
administrative control over them, the management should have
the freedom and there should not be any external controlling
agency. However, a rational procedure for the selection of
teaching staff and for taking disciplinary action has to be evolved
by the management itself.

For redressing the grievances of employees of aided and
unaided institutions who are subjected to punishment or
termination from service, a mechanism will have to be evolved,
and in our opinion, appropriate tribunals could be constituted,
and till then, such tribunals could be presided over by a judicial
officer of the rank of District Judge.

The State or other controlling authorities, however, can
always prescribe the minimum qualification, experience and
other conditions bearing on the merit of an individual for being
appointed as a teacher or a principal of any educational
institution.

Regulations can be framed governing service conditions for
teaching and other staff for whom aid is provided by the State,
without interfering with the overall administrative control of the
management over the staff.

Fees to be charged by unaided institutions cannot be
regulated but no institution should charge capitation fee.

Q.6(a) Where can a minority institution be operationally
located? Where a religious or linguistic minority in State A
establishes an educational institution in the said State, can such
educational institution grant preferential admission/reservations
and other benefits to members of the religious/linguistic group
from other States where they are non-minorities?

A. This question need not be answered by this Bench; it will be
dealt with by a regular Bench.

Q. 6. (b) Whether it would be correct to say that only the
members of that minority residing in State A will be treated as
the members of the minority vis-`-vis such institution?

A. This question need not be answered by this Bench; it will be
dealt with by a regular Bench.

Q.7. Whether the member of a linguistic non-minority in one
State can establish a trust/society in another State and claim
minority status in that State?

A. This question need not be answered by this Bench; it will be
dealt with by a regular Bench.

Q.8. Whether the ratio laid down by this Court in St. Stephen's
case (St. Stephen's College v. University of Delhi, (1992) 1
SCC 558) is correct? If no, what order?

A. The basic ratio laid down by this Court in St. Stephen's
College case (supra) is correct, as indicated in this judgment.
However, rigid percentage cannot be stipulated. It has to be left
to authorities to prescribe a reasonable percentage having
regard to the type of institution, population and educational
needs of minorities.

Q. 9. Whether the decision of this Court in Unni Krishnan, J.P.
v. State of A.P., (1993) 1 SCC 645 (except where it holds that
primary education is a fundamental right) and the scheme
framed thereunder require reconsideration/modification and if
yes, what?

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

Q. 10. Whether the non-minorities have the right to establish
and administer educational institution under Articles 21 and
29(1) read with Articles 14 and 15(1), in the same manner and
to the same extent as minority institutions?
and

Q. 11. What is the meaning of the expressions "education" and
"educational institutions" in various provisions of the
Constitution? Is the right to establish and administer
educational institutions guaranteed under the Constitution?

A. The expression "education" in the articles of the Constitution
means and includes education at all levels from the primary
school level up to the postgraduate level. It includes
professional education. The expression "educational institutions"
means institutions that impart education, where "education" is
as understood hereinabove.

The right to establish and administer educational
institutions is guaranteed under the Constitution to all citizens
under Articles 19(1)(g) and 26, and to minorities specifically
under Article 30.

All citizens have a right to establish and administer
educational institutions under Articles 19(1)(g) and 26, but this
right is subject to the provisions of Articles 19(6) and 26(a).
However, minority institutions will have a right to admit students
belonging to the minority group, in the manner as discussed in
this judgment."

The majority led by Kirpal, CJ, in Pai Foundation did say
that the expression "minorities" in Article 30 of the Constitution
of India, whether linguistic or religious, has to be determined by
treating the State and not the whole of India as unit. Questions
such as: (i) what is religion, (ii) what is the indicia for
determining if an educational institution is a minority institution,
(iii) whether a minority institution can operate extra-territorially
extending its activities into such states where the minority
establishing and administering the institution does not enjoy
minority status, (iv) the content and contour of minority by
reference to territories, were not answered in Pai Foundation
and were left to be determined by the regular Benches in
individual cases to be heard after the decision in Pai
Foundation. We also do not propose to involve ourselves by
dealing with these questions except to the extent it may become
necessary to do so for the purpose of answering the questions
posed before us.

Pai Foundation explained in Islamic Academy
Pai Foundation Judgment was delivered on 31.10.2002.
The Union of India, various State Governments and the
Educational Institutions, each understood the majority judgment
in its own way. The State Governments embarked upon
enacting laws and framing the regulations, governing the
educational institutions in consonance with their own
understanding of Pai Foundation. This led to litigation in
several Courts. Interim orders passed therein by High Courts
came to be challenged before this Court. At the hearing, again
the parties through their learned counsel tried to interpret the
majority decision in Pai Foundation in different ways as it
suited them. The parties agreed that there were certain
anomalies and doubts, calling for clarification. The persons
seeking such clarifications were unaided professional educational
institutions, both minority and non-minority. The Court
formulated four questions as arising for consideration in view of
the rival submissions made before the Court in Islamic
Academy:

"(1) whether the educational institutions are entitled to fix their
own fee structure;
(2) whether minority and non-minority educational institutions
stand on the same footing and have the same rights;
(3) whether private unaided professional colleges are entitled
to fill in their seats, to the extent of 100% , and if not, to
what extent; and
(4) whether private unaided professional colleges are entitled
to admit students by evolving their own method of
admission."

We could attempt at formulating the gist of the answers
given by the Constitution Bench of the Court as under:

(1) Each minority institution is entitled to have its own fee
structure subject to the condition that there can be no
profiteering and capitation fees cannot be charged. A provision
for reasonable surplus can be made to enable future expansion.
The relevant factors which would go into determining the
reasonability of a fee structure, in the opinion of majority, are:
(i) the infrastructure and facilities available, (ii) the investments
made, (iii) salaries paid to the teachers and staff, (iv) future
plans for expansion and betterment of the institution etc.

S.B. Sinha, J, defined what is 'capitation' and 'profiteering'
and also said that reasonable surplus should ordinarily vary from
6 per cent to 15 per cent for utilization in expansion of the
system and development of education.

(2) In the opinion of the majority, minority institutions stand on
a better footing than non-minority institutions. Minority
educational institutions have a guarantee or assurance to
establish and administer educational institutions of their choice.
State Legislation, primary or delegated, cannot favour non-
minority institution over minority institution. The difference
arises because of Article 30, the protection whereunder is
available to minority educational institutions only. The majority
opinion called it a "special right" given under Article 30.

In the opinion of S.B. Sinha, J, minority educational
institutions do not have a higher right in terms of Article 30(1);
the rights of minorities and non-minorities are equal. What is
conferred by Article 30(1) of the Constitution is "certain
additional protection" with the object of bringing the minorities
on the same platform as that of non-minorities, so that the
minorities are protected by establishing and administering
educational institutions for the benefit of their own community,
whether based on religion or language.

It is clear that as between minority and non-minority
educational institutions, the distinction made by Article 30(1) in
the fundamental rights conferred by Article 19(1)(g) has been
termed by the majority as "special right" while in the opinion of
S.B.Sinha, J, it is not a right but an "additional protection".
What difference it makes, we shall see a little later.

(3)&(4). Questions 3 and 4 have been taken up for
consideration together. A reading of the opinion recorded in
Islamic Academy shows that paras 58, 59 and 68 of Pai
Foundation were considered and sought to be explained. It
was not very clear as to what types of institutions were being
dealt with in the above referred to paragraphs by the majority in
Pai Foundation. Certainly, distinction was being sought to be
drawn between professional colleges and other educational
institutions (both minority and unaided). Reference is also found
to have been made to minority and non-minority institutions. At
some places, observations have been made regarding
institutions divided into groups only by reference to aid, that is
whether they are aided or unaided educational institutions
without regard to the fact whether they were minority or non-
minority institutions. It appears that there are a few
passages/sentences wherein it is not clear which type of
institutions the majority opinion in Pai Foundation was
referring to thereat. However, the majority opinion in Islamic
Academy has by explaining Pai Foundation held as under:

(1) In professional institutions, as they are unaided, there will
be full autonomy in their administration, but the principle
of merit cannot be sacrificed, as excellence in profession is
in national interest.


(2) Without interfering with the autonomy of unaided
institutions, the object of merit based admissions can be
secured by insisting on it as a condition to the grant of
recognition and subject to the recognition of merit, the
management can be given certain discretion in admitting
students.
(3) The management can have quota for admitting students at
its discretion but subject to satisfying the test of merit
based admissions, which can be achieved by allowing
management to pick up students of their own choice from
out of those who have passed the common entrance test
conducted by a centralized mechanism. Such common
entrance test can be conducted by the State or by an
association of similarly placed institutions in the State.


(4) The State can provide for reservation in favour of
financially or socially backward sections of the society.

(5) The prescription for percentage of seats, that is allotment
of different quotas such as management seats, State's
quota, appropriated by the State for allotment to reserved
categories etc., has to be done by the State in accordance
with the "local needs" and the interests/needs of that
minority community in the State, both deserving
paramount consideration. The exact concept of "local
needs" is not clarified. The plea that each minority unaided
educational institution can hold its own admission test was
expressly overruled. The principal consideration which
prevailed with the majority in Islamic Academy for
holding in favour of common entrance test was to avoid
great hardship and incurring of huge cost by the hapless
students in appearing for individual tests of various
colleges.

The majority opinion carved out an exception in favour of
those minority educational professional institutions which were
established and were having their own admission procedure for
at least 25 years from the requirement of joining any common
entrance test, and such institutions were permitted to have their
own admission procedure. The State Governments were
directed to appoint a permanent Committee to ensure that the
tests conducted by the association of colleges is fair and
transparent.

S.B. Sinha, J, in his separate opinion, agreed with the
majority that the merit and merit alone should be the basis of
selection for the candidates. He also agreed that one single
standard for all the institutions was necessary to achieve the
object of selection being made on merit by maintaining
uniformity of standard, which could not be left to any individual
institution in the matter of professional courses of study.
However, the merit criterion in the opinion of Sinha, J, was
required to be associated with the level of education. To quote
his words: "the merit criterion would have to be judged like a
pyramid. At the kindergarten, primary, secondary levels,
minorities may have 100% quota. At this level the merit may
not have much relevance at all but at the level of higher
education and in particular, professional education and
postgraduate-level education, merit indisputably should be a
relevant criterion. At the postgraduation level, where there may
be a few seats, the minority institutions may not have much say
in the matter. Services of doctors, engineers and other
professionals coming out from the institutions of professional
excellence must be made available to the entire country and not
to any particular class or group of people. All citizens including
the minorities have also a fundamental duty in this behalf."

Before we part with the task of summing up the answers
given to the four questions in Islamic Academy, we would like
to make a few observations of ours in this regard. First, the
majority opinion spread over 30 printed pages, and the minority
opinion spread over 60 printed pages, both though illuminating
and instructive, have nonetheless not summed up or pointedly
answered the questions. We have endeavoured to cull out and
summarize the answers, noted above, as best and as briefly as
we could from the two opinions. We would, therefore, hasten to
add that in order to fully appreciate the ratio of the two opinions,
they have to be read in detail and our attempt at finding out and
placing in a few chosen words the ratio decidendi of the two
separately recorded opinions, is subject to this limitation.
However, we shall make a reference to relevant passages from
the two opinions as and when it becomes necessary. A point of
significance which we would like to briefly note here itself, a
detailed discussion being relegated to a later part of this
judgment, is that the opinion of S.B. Sinha, J, has examined in
detail, the scope of protection conferred on minority institutions
by reference to their right to seek recognition or affiliation, an
aspect of wider significance which does not seem to have
received consideration with that emphasis either in Pai
Foundation or in the majority opinion in Islamic Academy.
We shall revert to this aspect a little later.

III
Issues herein

A Few Preliminary observations
Before we embark upon dealing with the issues posed before us for resolution, we would like to make a few preliminary observations as a preface to our judgment inasmuch as that would outline the scope of the controversy with which we are actually dealing here. At the very outset, we may state that our
task is not to pronounce our own independent opinion on the several issues which arose for consideration in Pai Foundation.
Even if we are inclined to disagree with any of the findings
amounting to declaration of law by the majority in Pai
Foundation, we cannot; that being a pronouncement by 11-
Judge Bench, we are bound by it. We cannot express a dissent
or disagreement howsoever we may be inclined to do so on any
of the issues. The real task before us is to cull out the ratio
decidendi of Pai Foundation and to examine if the explanation
or clarification given in Islamic Academy runs counter to Pai
Foundation and if so, to what extent. If we find anything said
or held in Islamic Academy in conflict with Pai Foundation,
we shall say so as being a departure from the law laid down by
Pai Foundation and on the principle of binding efficacy of
precedents, over-rule to that extent the opinion of the
Constitution Bench in Islamic Academy.

It is pertinent to note, vide paras 2, 3 and 35 of Islamic
Academy, that most of the petitioners/applicants therein were
unaided professional educational institutions (both minority and
non-minority). The purpose of constituting the Constitution
Bench, as noted at the end of para 1, was "so that
doubts/anomalies, if any, could be clarified." Having answered
the questions, the Constitution Bench treated all interlocutory
applications as regards interim matters as disposed of (see para
23). All the main matters (writ petitions, transfer petitions and
special leave petitions) were directed to be placed before the
regular Benches for disposal on merits.

Islamic Academy in addition to giving clarifications on
Interlocutory Applications, directed setting up of two committees
in each State: one committee "to give effect to the judgment in
Pai Foundation" and to approve the fee structure or to propose
some other fee which can be charged by minority institutions
(vide para 7), and the other committee __ to oversee the tests
to be conducted by the association of institutions (vide para 19).

Since the direction made in Islamic Academy for
appointment of the Committees has been vehemently assailed
during the course of hearing before us, we would extract from
the judgment in Islamic Academy the following two passages
wherein, in the words of Khare, CJ, the purpose and the
constitution of the Committees, the powers conferred on and the
functions enjoined upon them are given:
" ..we direct that in order to give effect to
the judgment in T.M.A. Pai case the
respective State Governments/concerned
authority shall set up, in each State, a
committee headed by a retired High Court
Judge who shall be nominated by the Chief
Justice of that State. The other member, who
shall be nominated by the Judge, should be a
Chartered Accountant of repute. A
representative of the Medical Council of India
(in short "MCI") or the All India Council for
Technical Education (in short "AICTE"),
depending on the type of institution, shall also
be a member. The Secretary of the State
Government in charge of Medical Education or
Technical Education, as the case may be,
shall be a member and Secretary of the
Committee. The Committee should be free to
nominate/co-opt another independent person
of repute, so that the total number of
members of the Committee shall not exceed
five. Each educational institute must place
before this Committee, well in advance of the
academic year, its proposed fee structure.
Along with the proposed fee structure all
relevant documents and books of accounts
must also be produced before the Committee
for their scrutiny. The Committee shall then
decide whether the fees proposed by that
institute are justified and are not profiteering
or charging capitation fee. The Committee will
be at liberty to approve the fee structure or to
propose some other fee which can be charged
by the institute. The fee fixed by the
Committee shall be binding for a period of
three years, at the end of which period the
institute would be at liberty to apply for
revision. Once fees are fixed by the
Committee, the institute cannot charge either
directly or indirectly any other amount over
and above the amount fixed as fees. If any
other amount is charged, under any other
head or guise e.g. donations, the same would
amount to charging of capitation fee. The
Governments/appropriate authorities should
consider framing appropriate regulations, if
not already framed, whereunder if it is found
that an institution is charging capitation fees
or profiteering that institution can be
appropriately penalised and also face the
prospect of losing its recognition/affiliation.
(para 7)

We now direct that the respective State
Governments do appoint a permanent
Committee which will ensure that the tests
conducted by the association of colleges is fair
and transparent. For each State a separate
Committee shall be formed. The Committee
would be headed by a retired Judge of the
High Court. The Judge is to be nominated by
the Chief Justice of that State. The other
member, to be nominated by the Judge,
would be a doctor or an engineer of eminence
(depending on whether the institution is
medical or engineering/technical). The
Secretary of the State in charge of Medical or
Technical Education, as the case may be, shall
also be a member and act as the Secretary of
the Committee. The Committee will be free to
nominate/co-opt an independent person of
repute in the field of education as well as one
of the Vice-Chancellors of the University in
that State so that the total number of persons
on the Committee do not exceed five. The
Committee shall have powers to oversee the
tests to be conducted by the association. This
would include the power to call for the
proposed question paper(s), to know the
names of the paper-setters and examiners
and to check the method adopted to ensure
papers are not leaked. The Committee shall
supervise and ensure that the test is
conducted in a fair and transparent manner.
The Committee shall have the powers to
permit an institution, which has been
established and which has been permitted to
adopt its own admission procedure for the
last, at least, 25 years, to adopt its own
admission procedure and if the Committee
feels that the needs of such an institute are
genuine, to admit, students of their
community, in excess of the quota allotted to
them by the State Government. Before
exempting any institute or varying in
percentage of quota fixed by the State, the
State Government must be heard before the
Committee. It is clarified that different
percentage of quota for students to be
admitted by the management in each minority
or non-minority unaided professional
college(s) shall be separately fixed on the
basis of their need by the respective State
Governments and in case of any dispute as
regards fixation of percentage of quota, it will
be open to the management to approach the
Committee. It is also clarified that no
institute, which has not been established and
which has not followed its own admission
procedure for the last, at least, 25 years, shall
be permitted to apply for or be granted
exemption from admitting students in the
manner set out hereinabove. (para 19)"

Sinha, J. has not specifically spoken of the Committees.
Nevertheless he made a reference to these Committees in his
opinion and thus impliedly recorded his concurrence with the
constitution of these Committees.
Vide para 20, the Constitution Bench has made it clear
that the setting up of two sets of Committees in the States has
been directed in exercise of the power conferred on this Court
by Article 142 of the Constitution and such Committees "shall
remain in force till appropriate legislation is enacted by
Parliament". Although the term 'permanent' has been used, but
it appears to us that these Committees are intended to be
transitory in nature.

Reference for constituting a Bench of a coram higher than
Constitution Bench


These matters have been directed to be placed for hearing
before a Bench of seven Judges under Orders of the Chief
Justice of India pursuant to Order dated July 15, 2004 in P.A.
Inamdar and Ors. v. State of Maharashtra and Ors., (2004)
8 SCC 139 and Order dated July 29, 2004 in Pushpagiri
Medical Society v. State of Kerala and Ors., (2004) 8 SCC
135. The aggrieved persons before us are again classifiable in
one class, that is, unaided minority and non-minority institutions
imparting professional education. The issues arising for decision
before us are only three:
(i) the fixation of 'quota' of
admissions/students in respect of unaided
professional institutions;


(ii) the holding of examinations for admissions
to such colleges, that is, who will hold the
entrance tests; and

(iii) the fee structure.

The questions spelled out by Orders of Reference
In the light of the two orders of reference, referred to
hereinabove, we propose to confine our discussion to the
questions set out hereunder which, according to us, arise for
decision:-

(1) To what extent the State can regulate the
admissions made by unaided (minority or non-
minority) educational institutions? Can the
State enforce its policy of reservation and/or
appropriate to itself any quota in admissions to
such institutions?


(2) Whether unaided (minority and non-minority)
educational institutions are free to devise their
own admission procedure or whether direction
made in Islamic Academy for compulsorily
holding entrance test by the State or
association of institutions and to choose
therefrom the students entitled to admission in
such institutions, can be sustained in light of
the law laid down in Pai Foundation?


(3) Whether Islamic Academy could have issued
guidelines in the matter of regulating the fee
payable by the students to the educational
institutions?


(4) Can the admission procedure and fee structure
be regulated or taken over by the Committees
ordered to be constituted by Islamic
Academy?

The issues posed before us are referable to headings 3
and 5 out of 'five headings' formulated by Kirpal, CJ in Pai
Foundation. So also speaking by reference to the 11 questions
framed in Pai Foundation, the questions and answers relevant
for us would be referable to question Nos. 3 (b), 4, 5 (a) (b) (c)
and (9).


IV
Submissions made
A number of learned counsel addressed the Court at the
time of hearing raising very many issues and canvassing
different view-points of law referable to those issues. We
propose to place on record, as briefly as we can, the principal
submissions made confined to the issues arising for decision
before us.

The arguments on behalf of the petitioners were led by
senior counsel Shri Harish Salve. Extensively reading various
relevant paragraphs and observations in different opinions in Pai
Foundation, learned counsel contends that the directions for
setting up permanent committees for regulating admissions and
fixing fee structure in unaided minority and non-minority
institutions issued in the case of Islamic Academy are contrary
to the ratio of judgment in Pai Foundation. According to
learned counsel, the directions clearly run counter to all earlier
Constitution Bench decisions of this Court in St. Stephen's,
St. Xavier's and Kerala Education Bill.

It is argued that in the judgment of the eleven judges in
Pai Foundation which deals with several diverse issues of
considerable complexity, every observation has to be understood
in its context. Paragraph 68 in Pai Foundation has wrongly
been read as the ratio of the judgement by the Bench of five
judges in the case of Islamic Academy. It is submitted that
paragraph 68 in the majority opinion in Pai Foundation has to
be read and understood in the context of the constitutional
interpretation placed on Articles 29 & 30 of the Constitution.
Reading thus, the directions for setting up permanent
committees, for fixing quota and fee structure seriously impinge
on the constitutional guarantee of autonomy to minority
institutions under Article 30 and to unaided non-minority
institutions under Article 19(1)(g). It is submitted that taking
over the right to regulate admission and fee structure of unaided
professional institutions is not a 'reasonable restriction' within
the meaning of Article 19(6) of the Constitution. Such restriction
is virtual negation of the constitutional protection of autonomy to
minorities in running educational institutions 'of their choice' as
provided in Article 30 of the Constitution.

Elaborating his legal propositions, learned senior counsel
Shri Salve argued that establishing and running an educational
institution is a guaranteed fundamental right of 'occupation'
under Article 19(1)(g) of the Constitution. Article 19(6) permits
State to make regulations and place reasonable restrictions in
public interest upon the rights enjoyed by citizens under Article
19(1)(g) of the Constitution. Any imposition of a system of
selection of students for admission would be unreasonable if it
deprives the private unaided institutions of the right of rational
selection which it has devised for itself. Subject to the minimum
qualifications that may be prescribed and to some system of
computing the equivalence between different kinds of
qualifications like a common entrance test, it can evolve a
system of selection involving both written and oral tests based
on principle of fairness. Reference is made to paragraph 40 of
the judgment in Pai Foundation.

It is submitted that the State can prescribe minimum
qualifications and may prescribe systems of computing
equivalence in ascertaining merit; however, the right of rational
selection, which would necessarily involve the right to decide
upon the method by which a particular institution computes such
equivalence, is protected by Article 19 and infringement of this
right constitutes an unreasonable encroachment upon the
constitutionally guaranteed autonomy of such institutions.

It is further argued that where States take over the right
of the institution to grant admission and/or to fix the fees, it
constitutes nationalization of educational institutions. Such
nationalization of education is an unreasonable restriction on the
right conferred under Article 19. Reliance is placed on paragraph
38 of the judgment in Pai Foundation.

Learned counsel further argues that schemes framed
relating to grant of admission and fixing of fees in Unni
Krishnan has been held to be unconstitutional by the 11-Judge
Bench in Pai Foundation. [Reference is made to paragraph 45
of the judgment in Pai Foundation] It is submitted that the
directions to set up committees for regulation of admission and
fee structure in Islamic Academy virtually do the same
exercise as was done in Unni Krishnan and disapproved in the
larger Bench decision in Pai Foundation. The submission in
substance made is that Unni Krishnan was disapproved in Pai
Foundation and has wrongly been re-introduced in Islamic
Academy.

It is argued that State necessity cannot be a ground to
curtail the right of a citizen conferred under Article 19(1)(g) of
the Constitution. The Constitution casts a duty upon the States
to provide educational facilities. The State is obliged to carry out
this duty from revenue raised by the State. The shortfall in the
efforts of the State is met by the private enterprise, that
however, does not entitle the State to nationalize, whether in the
whole or in part, such private enterprise. This, it is submitted, is
the true ratio of the Pai Foundation in so far as Article 19 of
the Constitution is concerned.

It is next argued that as held in St. Xavier's and re-
affirmed in Pai Foundation the right to establish and administer
educational institutions by minorities under Article 30 of the
Constitution is not an absolute right meaning thereby that it is
subject to such regulations that satisfy a dual test that is : the
test of 'reasonableness' and 'any regulation regulating the
educational character of the institutions so that it is conducive to
making the institution an effective vehicle of education for the
minority community and for the others who resort to it'. Any
regulation which impinges upon the minority character of the
institutions is constitutionally impermissible. It is submitted that
between the right of minorities to establish and administer the
educational institutions and the right of the State to regulate
educational activities for maintaining standard of education, a
balance has to be struck. The regulation in relation to
recognition/affiliation operates in the area of standard of
excellence and are unquestionable if they do not seriously curtail
or destroy the right of minorities to administer their educational
institutions. Only in maintaining standards of education, State
can insist by framing regulations that they be followed but in all
other areas the rights of minority must be protected. It is
conceded that mal-administration is not protected by Article 30
of the Constitution. Similarly, secular laws with secular object
that do not directly impinge upon the right of minority
institutions and operate generally upon all citizens do not
impinge upon Article 30 of the Constitution. This has been the
constitutional interpretation of Article 30 not because Article 30
admits no exception like Article 19(6) but because the right
conferred under Article 30 does not extend to these areas. The
laws that serve national interest do not impinge upon Article 30.

Learned counsel in elaborating his argument tried to make
a distinction between the rights of aided institutions and unaided
institutions. Article 29(2) places a limitation on the right of an
aided institution by providing that if State aid is obtained, 'no
citizen shall be denied admission on grounds only of religion,
race, caste, language or any of them'. It is submitted that as a
necessary corollary, no such limitation can be placed while
regulating admission in an unaided minority institution which
may prefer to admit students of minority community. So far as
unaided minority educational institutions are concerned, the
submission made is that government has no right or power,
much less duty, to decide as to which method of selection of
students is to be adopted by minority institutions. The role of the
government is confined to ensuring that there is no mal-
administration in the name of selection of students or in the
fixation of fees. No doubt, the State is under a duty to prevent
mal-administration, that is to control charging of capitation fees
for the seats regardless of merit and commercializing education
resulting in exploitation of students, but to prevent mal-
administration of the above nature or on the ground that there is
likelihood of such mal-administration, the State cannot take over
the administration of the institutions themselves into its own
hands. The likelihood of an abuse of a constitutional right cannot
ever furnish justification for a denial of that right. An
apprehension that a citizen may abuse his liberty does not
provide justification for imposing restraints on the liberty of
citizens. Similarly, the apprehension that the minorities may
abuse their educational rights under Article 30 of the
Constitution cannot constitute a valid basis for the State to take
over those rights.

Learned senior counsel Shri Ashok Desai appearing on
behalf of unaided Karnataka Private Medical Colleges (through its
Association) of both categories of minority and non-minority has
questioned the correctness of the directions in the case of
Islamic Academy for setting up permanent committees for
fixation of quota and determination of fees. According to him, as
held in Pai Foundation, in the name of controlling capitation,
there cannot be indirect nationalization and complete State
control of unaided professional institutes. In the case of Islamic
Academy, the ratio of Pai Foundation that autonomy of
unaided non-minority institutions is an important facet of their
right under Article 19(1)(g) and in case of minority under Article
19(1)(g) read with Article 30 of the Constitution has been
ignored.
On behalf of unaided private professional colleges, learned
counsel further submitted that there are many private
educational institutes which have been set up by people
belonging to a region or a community or a class in order to
promote their own groups. As long as these groups form an
unaided minority institution, they are entitled to have
transparent criteria to admit students belonging to their group.
For instance, scheduled castes and scheduled tribes have started
Ambedkar Medical College; Lingayaths have started KLE Medical
College in Belgaun and people belonging to Vokalliga community
have started Kempegowda Medical College. Similarly, Edava
community in Kerala has started its own colleges. Sugar
cooperatives in Maharashtra have started their own colleges.
Learned counsel also highlighted an instance of a college opened
in Tamil Nadu by State Transport Workers for the education of
their children on the engineering side. He submitted that if the
State is allowed to interfere in the admission procedure in these
private institutions set up with the object of providing
educational facilities to their own group, community or poorer
sections, the very purpose and object of setting up a private
medical college by a group or community for their own people
would be defeated.

According to learned counsel, the State control in unaided
private professional colleges can only be to the extent of
monitoring or overseeing its working so that they do not indulge
in profiteering by charging capitation fees and sacrifice merit.
According to the learned counsel, in the directions contained in
Islamic Academy, the main ratio of Pai Foundation that the
unaided institutions should have autonomy in the matter of
admission and fees structure has been totally forgotten. The
learned counsel raised very serious objections to the manner in
which the various permanent committees set up in several
States on the directions of Islamic Academy are conducting
themselves and forcing their decisions on private institutions.
The proposed fee structure is required to be placed before the
Committee in advance of the academic year by the institute. It is
the Committee which has to decide whether the fees proposed
by the institute are justified and do not amount to profiteering or
charging of capitation fees. The Committee has been given
liberty to approve the fee structure of the institute or to propose
a different fee structure. The fee fixed by the Committee is
binding for a period of three years and at the end of the said
period the institute would be at liberty to apply for revision.
Learned counsel gave in writing certain illustrations of decisions
of the Fee Committee in few unaided colleges in the State of
Karnataka and pointed out that without proper financial
expertise and without studying the relevant documents and
accounts, the Committee determined the fee structure by only
taking into account the affordability of the parents of the
students with no regard whatsoever to the viability of the
institute on the basis of finances so generated. It is argued as to
why private professional institutes should not be allowed to
modernize its facilities and provide better professional education
than government institutes. It is pointed out that in the case of
non-minority unaided M.S. Ramaiaya Medical College, Bangalore,
the Fee Committee initially fixed annual fee at Rs.2.55 lacs for
MBBS course as against the justification shown by the institute
for demanding Rs. 3.90 lacs. The decision of the Fee Committee
led to the filing of writ petition by the institute in the High Court
of Karnataka and agitation and demonstrations by the students'
union. The Committee under the pressure of the student
community reduced the annual fee to Rs.1.6 lacs which was re-
affirmed after the High Court directed that the management of
the unaided college should be heard before reducing the annual
fee.

Thus the learned counsel on behalf of the Karnataka
Private Medical College Association questioned the correctness of
the directions of the Bench in Islamic Academy. It is submitted
that as decided in Pai Foundation by a larger Bench, the
essence of private educational institutions is the autonomy that
the institution must have in its management and administration.
The 'right to establish and administer' particularly comprises the
right a) to admit students and b) to set up reasonable fee
structure. The autonomy of the institution, therefore, predicates
that all seats would be filled by the management and there can
be no reservations or quotas in favour of the State. In Pai
Foundation, the only observations made were that some
colleges may be required to admit a small percentage of
students belonging to weaker sections of the society by granting
them freeships or scholarships. It is conceded that autonomy of
a private educational institution to admit students of its choice
does not mean that there can be no insistence on transparency
in the admission procedure and on merit being the criterion for
admission. It is submitted that autonomy of a private
educational institution could mean that they can, according to
the objects and purposes of their institutions, give preference to
a particular class or group of students like SC/ST in Ambedkar
Medical College, students from backward area in Bijapur college
and transport employees' children in Madras State Corporation
Employees' College or the children of employees of Larson &
Turbo Company in a college established by that company. The
right to charge fees so as to run the college and to generate
sufficient funds for its betterment and growth cannot be
controlled by the State. That would seriously encroach upon the
autonomy of the private unaided institution. It is submitted, by
quoting Dr. S. Radhakrishnan, the then Chairman of the
University Education Commission, that interests of democracy lie
with the resistance of the trend towards governmental
domination of the educational process. In conclusion, learned
counsel representing Association of private unaided colleges in
Karnataka submits that the decision in Islamic Academy and
the directions made therein go far beyond the law laid down by
the larger Bench in Pai Foundation. The Bench in Islamic
Academy virtually reviewed the larger Bench decision in Pai
Foundation in guise of implementation of the said decision and
on the basis of later developments. In Islamic Academy, the
Bench accepted that there could be no rigid fee structure fixed
by the government for private institutions. An institute should
have the freedom to fix its own fee structure for day-to-day
running of the institute and to generate funds for its further
growth. Only capitation and diversion of profits and surplus of
the institute to any other business or enterprise was prohibited.
It is submitted that Islamic Academy contrary to the legal
position explained in Pai Foundation, could not set up in each
State permanent committees headed by retired High Court
Judges with the power to decide on the justification of the fee
proposed by the institute and propose any other fees. It could
also not make the fee fixed by the Committee binding for a
period of three years. Learned counsel submits that once the
college infrastructure and hospital facilities attached to the
medical college have been approved by the Medical Counsel of
India in accordance with its regulations, the total expenses of
college and hospital could be taken into account by the institute
to decide upon its own fee structure. Learned counsel, in
criticizing the directions in Islamic Academy, submitted that
although the scheme formulated in Unni Krishnan has been
expressly overruled in Pai Foundation on the ground that it
virtually nationalized education and resulted in surrendering total
process of selection to the State, the Bench in Islamic
Academy's case, in an attempt to take up preventive measures
to ensure merit and check profiteering in private unaided
professional institutions, cannot re-introduce quota system for
the management and the State and thus infringe upon the
autonomy of the institute. Such an attempt, learned counsel
contends, would be unconstitutional and violative of Article
19(1)(g) of the Constitution in the case of non-minority unaided
institutions and also violative of Article 30 in the case of minority
unaided professional institutions. Learned counsel argued that
constitutionally, as held in Pai Foundation, it is not permissible
for the State to impose a Government quota, its own reservation
policy, a lower scale of fees etc. on a private unaided non-
minority and unaided minority professional institutions, only by
taking into consideration the interests of students. In the State
of Karnataka for the academic year 2004-2005, by illustration, it
is shown that 75% of the intake capacity is the Government
quota in which are included 5% quota for sports, defence and
NCC; 50% quota for Scheduled Castes/Economically backward
classes/Scheduled Tribes/OBC, there is total 55% reservation
quota in 75% of the government quota. The remaining 25%
quota left for the management is also to be taken over by the
Government insisting on admitting students from the select list
prepared on the common entrance test conducted by the State.

Learned senior counsel Shri F. S. Nariman also supported
the submissions made by other counsel on behalf of the unaided
professional institutions and added that the observations of the
Bench in Islamic Academy clearly go far beyond anything said
by eleven judges in Pai Foundation. It is submitted that the
question of quota 50:50 for State and management as referred
to in St. Stephen's was in respect of aided minority educational
institutions and in Pai Foundation, the Bench never suggested
fixation of quota for State and management in case of unaided
professional institutions. Learned senior counsel particularly
pointed out that in Islamic Academy, the observations that
different percentage of quota for students to be admitted by the
management in each minority and non-minority unaided
professional institutions shall be separately fixed on the basis of
their need by the respective State Government, was a totally
new direction, nowhere to be found or supported by any of the
observations in any of the opinions of the 11-Judge Bench in
Pai Foundation. With regard to the most controversial
observations contained in paragraph 68 of the opinion prepared
by Justice Kirpal (the then CJI) in Pai Foundation, learned
counsel contended that the decision in Unni Krishnan having
been overruled by 11-Judge Bench in Pai Foundation, the
observations in paragraph 68 which are more in tune with Unni
Krishnan should not be read as the ratio of the case. Senior
counsel was also critical of all the observations in fixing quota for
the State in unaided institutions on the basis of local needs
and not the needs of the community for which the institution
was set up. Learned counsel also criticized the directions in
Islamic Academy which according to him are contrary to the
findings in Pai Foundation that certain unaided private
educational institutions which had been adopting its own
admission procedure for the last 25 years be allowed to continue
to do so. It is submitted that as a part of autonomy of the
private unaided institution, the quantum of fees to be charged
must be left to the institution and except for checking
profiteering and capitation fees, the State can have no say in
fixation of fees. The scheme of setting up permanent committees
for even unaided minority and non-minority institutions was not
at all envisaged in Pai Foundation. The Islamic Academy
which was the case before a smaller Bench could not do anything
beyond and contrary to what has been stated in Pai
Foundation.

Learned senior counsel Shri R.F. Nariman in supporting the
argument advanced against the directions in Islamic Academy
submitted that any interference with the autonomy of the
institution, other than to prevent mal-administration, would not
be saved by Article 19(6) of the Constitution. The concept of
administration includes choice in admitting students and fixing a
reasonable fee structure. In the matter of admission, if objective
criteria are adopted so as to reflect the merit, it would be
unexceptionable. So far as fee structure is concerned, no
institution can be allowed to charge capitation fees which only
means something taken over and above what the institution
needs by way of revenue and capital expenditure plus a
reasonable surplus. Once Unni Krishnan was overruled, private
education cannot be allowed to be nationalized. It is submitted
that it may be possible for the State to scrutinize the
expenditure of revenue and capital expenditure of an aided and
unaided institution to ensure good administration but the State
cannot devise its own admission procedure and determine in
advance a fee structure for the unaided private institutions. On
the question of deducing ratio in Pai Foundation, learned
counsel referred to Halsbury Laws of England Vol. 37 page 378
in which the meaning of ratio decidendi has been explained. It is
submitted that it is only the essence of the reason or principle
upon which the question before a court has been decided which
is alone binding as a precedent. It is dangerous to take one or
two observations out of a long judgment and to treat them as if
they give the ratio decidendi of the case.

Dr. Rajiv Dhawan, learned senior counsel in assailing
directions issued in Islamic Academy for setting up permanent
committees to fix quota and fee structure highlighted that the
State of Maharashtra has encroached upon the rights of unaided
institutions by directing in one of its Government Memoranda
dated 13.02.2003 that even in the quota of seats fixed for
management, the unaided non-minority institutions should
implement the rule of reservation (communal reservation) of the
State Government.

Learned senior counsel contends that the net result of such
illegal directions is that the reservation policy for schedule
castes, schedule tribes and OBCs is to be applied not only for
50% seats of government quota but also for the remaining 50%
of management quota of unaided non-minority institutions.
Virtually, the management of non-aided institutions has been
completely taken over by the state and as a result of communal
reservations, the quota of seats fixed for government and quota
fixed for the management may be filled by granting admissions
to students of non-minority communities .

Learned senior counsel contends that in Pai Foundation,
maximum autonomy is conceded in favour of unaided
institutions. The only insistence is on maintenance of
transparency in method of admission and fixation of such fee
structure that does not permit charging of capitation fee.
Interpreting provisions of Article 19(6) and Article 30 it is
contended that constitutional limitation necessarily would vary in
imposing reasonable restriction where the institution is unaided
or aided.

On the issue of constitutional protection to the unaided
minority institutions, the contention advanced that general
restrictions permissible under Article 19(6) can also be applied to
unaided minority institutions, it is submitted, is misconceived.
The submission is that education is a recognized head of charity.
The object of establishing educational institution is not to make
profit. Imparting education is essentially charitable in nature.
The charitable nature of the occupation of establishing and
running an educational institution has been recognized in Pai
Foundation. Therefore, all restrictions, which are permissible
under Article 19(6) in case of other kind of professions and
occupations, cannot apply to educational activities. It is
submitted that restrictions imposed should satisfy the
requirements of Article 30 and not only of Article 19(6).

In Pai Foundation, for determining linguistic and religious
minorities, the unit to be taken is State. Therefore, when
Tamilians, who are in majority in Tamil Nadu, establish an
institution for Tamil students in Karnataka, it would be a
minority institution in Karnataka. What would be the rights of
such an institution of linguistic minority has not been answered
either in Pai Foundation or in Islamic Academy. Therefore,
this Bench should decide what are the rights of such cross-
border institutions.

In short, the submission made by Sr. Counsel Dr. Rajiv
Dhawan is that there is nothing in Pai Foundation, which
permits fixation of quotas for government seats, fixation of fee
structure by the State, imposition of its reservation policy and
imposition of candidates on the basis of common entrance test
conducted by the State. In Pai Foundation, the State can have
some controlling influence on unaided institutions for the
purpose of ensuring transparency in admissions and checking
the collection of capitation fee. In Pai Foundation, no
preemptive action by setting up permanent committees by the
State was envisaged or even indirectly approved.

The decision in Islamic Academy, it is submitted, is
contrary to the decision by the larger Bench in Pai Foundation,
and deserves therefore to be so declared by this Bench.

Learned senior counsel Shri U.U. Lalit appears for the sole
Dental College established by Muslims in the State of
Maharashtra. Apart from supporting the contention advanced by
other counsel against the scheme of committees evolved in
Islamic Academy, learned counsel submitted that the
judgment of the Bombay High Court against which they have
filed an appeal before this court has resulted in a situation where
affluent students are getting admission at lesser fee and poorer
students are kept out of college. It was submitted that the
petitioner institute being the sole institute set up for Muslim
community, their desire to cater to the educational needs of
Muslim students from all over cannot be discouraged. Objecting
to the fee structure prescribed by the committees in
Maharashtra, the suggestion made on behalf of the institute is as
under :-

(a) 25% students will be charged five times of the average fee, which was in vogue before TMA Pai's judgment.

(b) 50% students will be charged average fee.

(c) Remaining 25% will be charged 1/4th of the average fee.

It is submitted that in the above proposed fee structure,
meritorious students coming from all sections of society will be
able to take admissions. At the same time, the educational
institutions will be able to recover the amount required for
running the educational institution in the best possible manner.
It is, therefore, prayed that Bombay High Court judgment dated
23.08.2003 prescribing uniform fee structure for all the students
be set aside and minority educational institutions be allowed in
the exercise of their fundamental right, to prescribe fee under a
three-tier system subject to the rider of non-profiteering and not
charging capitation fee.

In reply, on behalf of the respondents, senior counsel, Shri
K.K. Venugopal, who appeared for the States of Kerala led the
arguments. It may be noted at this stage that after the
decisions in Pai Foundation and Islamic Academy, in the
States of Kerala, Karnataka, Maharashtra and Tamil Nadu, their
respective legislatures have passed Acts regulating admissions
and charging of fee in both aided and unaided minority and non-
minority private educational institutions engaged in imparting
education in professional, medical, engineering and allied
courses.

On behalf of the State of Kerala, it is pointed out that only
25% seats in private professional colleges have been reserved to
be filled on the basis of central entrance test and remaining 75%
seats are to be filled by the management. It is submitted that
the group of paragraphs starting with 67 and ending with 70 in
the majority opinion in Pai Foundation carries the title "Private
Unaided Professional Colleges." This heading covers both
unaided minority and non-minority professional colleges. Since
paragraph 68 in the majority opinion in Pai Foundation has
been differently understood by the High Court of Karnataka and
Kerala, an occasion has arisen to resolve the controversy by a
Bench of the present combination of seven judges.

To justify fixation of quota for seat sharing between State
and the private management and fixing a reasonable fee
structure to avoid profiteering and capitation, the learned
counsel highlighted certain illicit practices, which are being
resorted to, by the private institutions to exploit the student
community. It is submitted both the judgments in Pai
Foundation and Islamic Academy, profiteering,
commercialization of education and the collection of capitation
fee have been condemned. This court had expressly held that it
would be open to the government to make regulations for the
purpose of preventing commercialization of professional
education. It is on the line suggested by this court that the
Government of Kerala had made regulations both for the
purpose of admissions as well as for fixing reasonable fee which
will cover not only the expenditure incurred by the institution but
also give them a reasonable revenue surplus for further growth
and betterment of the institution.

The High Court of Kerala by its judgment of 23.08.2003
has fixed rupees 1.50 lacs provisionally per annum as the fee.
The Government has fixed 1.76 lacs. What is being disclosed by
Pushpgiri Medical College itself is that they had collected rupees
4.38 lacs and rupees 22 lacs from different students. The
explanation given is that these collections are for the whole
period of five years to prevent the students from leaving the
college mid-way. This explanation on the face of it is
disingenuous as rupees 22 lacs was not collected uniformly from
all the students. Despite the students leaving the course mid-
way, the seats would still be filled. It is due to this menace and
evil practice of exploiting parents and students that a Committee
was required to be set up for restricting admissions in proportion
to the need of the peculiar character of the institution and to
check profiteering.
It is submitted that if the scheme as evolved in Islamic
Academy of setting up of permanent Committees is not allowed,
education which is already commercialized to some extent would
be wholly inaccessible to students coming from middle classes,
lower-middle classes and poor sections of the society. To
provide access to professional education even to weaker sections
of the society in fifty percent quota of seats to be filled by the
government, the reservation policy of the government has been
applied. The fifty-fifty percent quota between government and
management fixed by the government has been changed to
twenty five-seventy five per cent by the court. Similarly, the
court has struck down Regulation 11 framed by the State on the
ground that the State cannot foist fee of students on the
institution and it would be left to the management to make
provisions for poorer sections of the society through free-ships
or scholarships.

In the above-mentioned background, learned counsel Shri
Venugopal submits that this Bench is not considering the
correctness of judgment in Islamic Academy. It will not and
cannot go into the question of correctness of judgment in Pai
Foundation which is of a larger Bench. This Bench has a
limited jurisdiction to examine whether the 5-Judge Bench
decision in Islamic Academy is in any manner inconsistent with
11-Judge Bench judgment in Pai Foundation. It is submitted
that if there are certain inherent inconsistencies between various
paragraphs particularly 59 and 68 of the judgment in Pai
Foundation, they have to be resolved and that was exactly
what was done by the five judges in Islamic Academy.

In Pai Foundation, observation in paragraph 68 under
the heading "Private Unaided Professional Colleges" read with
para 69 indicates appropriate machinery to be evolved to
regulate admissions in both categories of private institutions to
check exploiters who are charging capitation fee.

It is submitted that if the attempt by the Bench in Islamic
Academy to resolve the apparent inconsistency in the judgment
of Pai Foundation, indicated a reasonable and plausible
interpretation of the 11-Judge Bench judgment in Pai
Foundation, this court should refrain from substituting another
interpretation.

It is for the first time in Pai Foundation that the question
of application of Article 30 to minority professional colleges
arose. All earlier judgments of this court were only concerning
education in schools and colleges other than those imparting
professional education. For the first time in Pai Foundation, the
court held that running an educational institution is an
'occupation' and Article 19(1) (g) guarantees it as a fundamental
right.

It is submitted that regulation of non-minority unaided
professional institution is permissible under Article 19(6) of the
Constitution to prevent profiteering, levy of capitation fee and
selection of non-meritorious candidates. Such regulation also
does not violate right of minority professional institutions under
Article 30, which this Court has repeatedly held, is not an
absolute right but is merely a protection extended to minorities
against oppression by the majority.

The issue relating to reservation of seats for schedule
castes, schedule tribes or OBCs, either in management quota or
in Government quota did not come up for consideration either in
Pai Foundation or Islamic Academy. This has to be
separately dealt with by the present Bench

Similarly, it is submitted that right of minority institutions
to admit students from all over the country, irrespective of their
religion and community and also from abroad such as NRIs
never arose directly for consideration either in Pai Foundation
or Islamic Academy. In this respect, it is submitted that the
status of minority both religious and linguistic is to be
determined at the state level. The minority institutions cannot
claim a right to cater to the educational needs of their
community from all over the country and even from abroad.

In paragraph 68 of the judgment in Pai Foundation the
use of the phrase 'certain percentage based on local needs' and
further phrase 'different percentages can be fixed' for minority
unaided and non-minority unaided professional colleges' clearly
convey that quotas can be fixed based on local needs for
management and for the Government. Meritorious students
from weaker sections are not to be sidelined from higher and
professional education. It is argued that the phrase 'local need'
as used in paragraph 68 in the judgment of Pai Foundation
cannot be read to mean the needs of the institution
concerned. So far as the selection based on merit is concerned,
common entrance test has been suggested both for aided and
non-aided professional colleges. When there is no common
entrance test, merit becomes the casualty and the rich and the
affluent corner the seats.

So far as the right to fix a fee structure for unaided
minority or non-minority colleges or institutes is concerned, the
argument that pre-fixation of fee is a serious encroachment on
the rights of minority and non-minority, it is submitted, is not
valid as full discretion is given to the management in fixing their
fee structure. However, they would not be allowed to fix such
high fee as would deny many meritorious students a chance of
admission only because they come from economically weaker
sections. It would be of no consolation to them to find that after
admissions are over and classes have started, the fee has been
lowered by the monitoring committee. If the committee is
allowed to scrutinize the justification of fee fixation after the
admissions and the fee is lowered, it would not be possible for
the meritorious students to again seek admission. Through the
Committees set up in Islamic Academy, the fee structure
would be known before hand and would serve the interest of the
institution as also the students seeking admission. The
Committee has to fix fee for each college depending upon its
peculiar conditions and its assets and availability of funds.
Coming to the question of cross subsidy, it is submitted that in
Pai Foundation, cross-subsidizing the weaker sections by the
more affluent ones has not been held to be impermissible. The
Bench in Pai Foundation overruled the judgment in Unni
Krishnan. The latter provided for "marginally less merited rural
or poor students bearing the burden of rich and urban students."
The learned counsel suggests that solution can be to set apart
fifteen percent of total seats in a local college to be filled by NRI/
person of independent origin/ foreign students who would
volunteer to fill up the allotted seats on the management quota
but on inter se merit. Each NRI student would subsidize two
other students belonging to the economically and socially weaker
sections based on an annual income of say less than rupees 2.5
lacs. This would cater to the financial needs of at least 30 out of
50 students selected on merit forming part of the Government
quota and this would be a constitutionally permissible solution.

To streamline and further improve the admission
procedure and fixation of fee structure, learned counsel has
made the following proposals in writing submitting that they
may be of practical value to the Committees directed to be set
up by Islamic Academy:-

A. ADMISSION:

Six months prior to the commencement of the
academic year, the Government would fix the
percentage of students to be admitted by a minority
(religious/linguistic) professional college (other than
engineering ), taking into account the local needs of
the State, the region as well as that of the minority-
community. It would be a huge and cumbersome
exercise in practice, to fix a percentage for each one
of the institutions separately and it would be a
pragmatic approach to have a fixed percentage for
all the minority institutions which is fair and
reasonable. A practical approach to the problem
would require a very definite percentage to be fixed
for minority institutions, say, 50% so that even if
candidates of their choice, belonging to the minority
institutions, are only 25% they would still have the
right to select non-minority students to make up the
50%, of course, from the CET held by the
Government.

1. The CET held by Government would ensure
that the various devices adopted by professional
colleges to secretly demand capitation fees and take
the same in black money, thus resulting in merit
being the casualty, would not take place. No
prejudice will be caused to the management of the
professional colleges as they could select the
minority students based on inter se merit in the CET
held by the Government.

2. There would equally be no disadvantage to any
particular section or to Government if the same 50%
rule is applied even to unaided non-minority
professional colleges as well.

3. The result of following this procedure is that a
consortium holding the tests for admissions is done
away with and a monitoring committee, preferably
headed by a retired High Court or Supreme Court
judge would ensure fairness and transparency both
in the minority and non-minority professional
institutions.

4. ............
5. ..............

B. FEES:

The Committee suggested by Islamic Academy and
the procedure mentioned therein, appears to be the
only safe method of ensuring that extortionate fees
are not charged by the medical colleges. At the
same time, it would be wrong to deny expenditure
which the institution undertakes for ensuring
excellence in education. Equally, a reasonable
surplus should be permitted so that the fees charged
cover the entire revenue expenditure and in addition
leaves a reasonable surplus for future expansion.
This alone would prevent the clandestine collection of
capitation fees and would result in entrepreneurs
investing in new medical colleges.

The Committee suggested by Islamic Academy
appears to be the ideal one consisting of a chartered
accountant, a representative of the MCI or AICTE as
the case may be, with a retired judge of the High
Court or the Supreme Court as the head.

The fee is to be fixed on the proposal of the
institution supported by documents and the
procedure of fee finalization should commence at
least 6 months in advance of the commencement of
the academic year.

These proposals should all be by way of an interim
arrangement as held by Islamic Academy in para 20
with the Parliament bringing in a law, as suggested
by Islamic Academy without dragging its feet any
longer."

With regard to the ambit of the constitutional guarantee of
protection of educational rights of minorities under Article 30,
learned counsel submits that both religious and linguistic
minority, as held in Pai Foundation, are to be determined at
the State level. On this understanding of the concept of
'minority', Article 30 has to be harmoniously construed with
Article 19(1)(g) and in the light of the Directive Principles of the
State Policy contained in the Articles 38, 41 and 46. Rights of
minorities cannot be placed higher than the general welfare of
the students and their right to take up professional education on
the basis of their merit.

The real purpose of Article 30 is to prevent discrimination
against members of the minority community and to place them
on an equal footing with non-minority. Reverse discrimination
was not the intention of Article 30. If running of educational
institutions cannot be said to be at a higher plane than the right
to carry on any other business, reasonable restriction similar to
those placed on the right to carry on business can be placed on
educational institutions conducting professional courses. For the
purpose of these restrictions both minorities and non-minorities
can be treated at par and there would not be any violation of
Article 30(1), which guarantees only protection against
oppression and discrimination of the minority from the majority.
Activities of education being essentially charitable in nature, the
educational institutions both of non-minority and minority
character can be regulated and controlled so that they do not
indulge in selling seats of learning to make money. They can be
allowed to generate such funds as would be reasonably required
to run the institute and for its further growth.

On behalf of the State of Karnataka, learned senior counsel
Shri T.R. Andhyarujuna supported the judgment in Islamic
Academy of setting up permanent Committees for regulating
admission and fee structure. Learned senior counsel submitted
that relevant parts of paragraphs 58, 59 and 68 and answer to
question no. 4 in Pai Foundation have to be read and
reconciled. They cannot be ignored simply as obiter. A
combined reading of the relevant paragraphs and the answer to
question no.4 makes it clear that regulations can be made by the
State for admission in minority and non-minority private
educational institutions and more so in professional institutions.
The merit for admission to professional courses is generally
determined by Government agencies. In Pai Foundation the
reservation on certain percentage of seats by the Government to
be filled up by counseling by state agency, is held permissible.

With regard to the quota fixation, learned counsel submits
that paragraph 68 in Pai Foundation allows reservation of
quota for management and for the Government for available
seats. It is submitted that the educational institutions cannot
merely read the answer to question no.4 given by judgment in
Pai Foundation and ignore the other observations in other
paragraphs of the judgment.

So far as the case of minority and non-minority unaided
institutions is concerned, learned counsel submits that the
balancing act has been performed in the judgment of Pai
Foundation by regulating the economy of educational
institutions moderated by necessary State legislation.
Observation in paragraph 68 in Pai Foundation does not
amount to permitting nationalization or takeover of the private
institutions which was the main feature found foul in the decision
in Unni Krishnan and was consequently overruled. The
observation in Pai Foundation in paragraph 68 strikes the
balance between the academy and education. To read
paragraph 68 as merely giving an instance would be to ignore
the concern of the Bench in Pai Foundation of providing
reservation to poorer or backward sections of society even in
private institutions. The description of percentage of reservation
in paragraph 68 is different from reservation policy of the State
for State institutions and in State quota.

It is submitted that the reservation spoken of in paragraph
68 of Pai Foundation is to cater to the needs of poorer and
weaker sections and also other students depending upon the
local needs.

So far as the regulation of fee structure is concerned, it is
submitted that in paragraph 69 in Pai Foundation there is a
mention of "appropriate machinery to be devised by the State or
University to ensure that no capitation fee is charged and
profiteering is checked." The judgment in Islamic Academy
merely implements the legal position explained by Pai
Foundation by providing a fee determination committee. In
reply to the argument that post-fixation audit may be permitted
to check profiteering and capitation, the learned counsel answers
that if the role of the Committee is limited to supervisory post
fixation audit, it would amount to denying credible restriction to
the charging of capitation fee. It is chimerical to suggest that
the student should first pay the exorbitant fee fixed by the
institution and later on complain about it to the post audit
machinery to recover the excess through court of law. The
controlling of the fee fixing machinery is necessarily to be done
before it is charged otherwise it is meaningless to the benefit of
the students for whom it is suggested in paragraph 69. The
general principle for scrutinizing the fee structure is two-fold; (1)
that education is a charity, (2) that educational institutions
cannot charge such fee as is not required for the purpose of
fulfilling that object which means cost plus reasonable surplus
for expansion and growth of the institution. These are the
parameters before the Committee whose decisions, in any case,
are subject to judicial review.

So far as the admissions based on common entrance
test are concerned, it is submitted that paragraphs 58 and 59 of
Pai Foundation permit regulations to be framed for admission
in professional institutions by State agency to ensure admission
on merit. In the absence of CET and centralized counseling,
private educational institutions would pick and choose candidates
ignoring merit, as has been evident from the Karnataka
experience. If the private professional educational institutions
conceive that merit cannot be ignored in granting admission,
direction to make selection based on CET does not in any
manner adversely affect the character of the minority institution.
The State regulation providing for CET is a reasonable restriction
and it will pass the test of Article 19(6) both in respect of aided
and unaided non-minority institutions. Private unaided
institutions have also to admit students on the basis of merit in a
fair and transparent manner in the interest of student
community. Right of private educational institutions to admit
students can be regulated. Such regulations if in national and
public interest do not in any manner impinge on the right of
minority.
Learned counsel points out that so far as the State of
Karnataka is concerned, no reservation policy is being insisted
upon in the seats or quota given to the management.

Arguments were also advanced supporting the directions in
Islamic Academy by learned senior counsel Shri P.P. Rao
appearing for the State of Tamil Nadu. It is submitted that
already a statement had been made in the High Court that the
State of Tamil Nadu would not be insisting on communal
reservation based on State policy in the minority institution.

Learned counsel pressed into service Article 51-A(j)
providing for Fundamental Duties in the Constitution. It is
submitted that fundamental duty is enjoined on citizens to so
direct their individual and collective activities that the nation
constantly rises to higher levels of endeavour and achievement.
This duty implies that the State on its part is to facilitate
discharge of duties by the citizen in relation to the professional
education. The State is bound to ensure admission to colleges
that are made purely on relative merit to be objectively assessed
by a responsible agency. The decisions of this court rendered
from time to time consistently and unanimously held that
regulation could be made for achieving standards of excellence
in education. Reliance is placed on Dr. Prithvi v. State of MP
(1999) 7 SCC 120 at 153 and 155; Professor Yashpal v. State
of Chhattisgarh (2005) 2 SCC 61 at 79 paragraph 90.

V
A few concepts

There are a few concepts which should be very clear in
our minds at the very outset, as these are the concepts which
flow as undercurrents in the sea of issues surfacing for resolution
in all educational cases. These concepts are referable to : (i)
What is 'education'? (ii) What is the inter-relationship of Articles
19(1)(g), 29 and 30 of the Constitution? (iii) In the context of
minority educational institutions, what difference does it make if
they are aided or unaided or if they seek recognition or affiliation
or do not do so? (iv) Would it make any difference if the
instructions imparted in such educational institutions relate to
professional or non-professional courses of study?
Education
'Education' according to Chambers Dictionary is "bringing
up or training; strengthening of the powers of body or mind;
culture."

In Advanced Law Lexicon (P. Ramanatha Aiyar, 3rd Edition,
2005, Vol.2) 'education' is defined in very wide terms. It is
stated : "Education is the bringing up; the process of developing
and training the powers and capabilities of human beings. In its
broadest sense the word comprehends not merely the instruction
received at school, or college but the whole course of training
moral, intellectual and physical; is not limited to the ordinary
instruction of the child in the pursuits of literature. It also
comprehends a proper attention to the moral and religious
sentiments of the child. And it is sometimes used as
synonymous with 'learning'."

In The Sole Trustee, Lok Shikshana Trust v. C.I.T.,
(1976) 1 SCC 254, the term 'education' was held to mean __
"the systematic instruction, schooling or training given to the
young in preparation for the work of life. It also connotes the
whole course of scholastic instruction which a person has
received . What education connotes is the process of training
and developing the knowledge, skill, mind and character of
students by formal schooling."

In 'India Vision 2020' published by Planning Commission
of India, it is stated (at p.250) __ "Education is an important
input both for the growth of the society as well as for the
individual. Properly planned educational input can contribute to
increase in the Gross National Products, cultural richness, build
positive attitude towards technology and increase efficiency and
effectiveness of the governance. Education opens new horizons
for an individual, provides new aspirations and develops new
values. It strengthens competencies and develops commitment.
Education generates in an individual a critical outlook on social
and political realities and sharpens the ability to self-
examination, self-monitoring and self-criticism."

"The term 'Knowledge Society', 'Information Society' and
'Learning Society' have now become familiar expressions in the
educational parlance, communicating emerging global trends
with far-reaching implications for growth and development of
any society. These are not to be seen as mere clichi or fads but
words that are pregnant with unimaginable potentialities.
Information revolution, information technologies and knowledge
industries, constitute important dimensions of an information
society and contribute effectively to the growth of a knowledge
society." (ibid, p.246)

"Alvin Toffler (1980) has advanced the idea that power at
the dawn of civilization resided in the 'muscle'. Power then got
associated with money and in 20th century it shifted its focus to
'mind'. Thus the shift from physical power to wealth power to
mind power is an evolution in the shifting foundations of
economy. This shift supports the observation of Francis Bacon
who said 'knowledge itself is power'; stressing the same point
and upholding the supremacy of mind power, in his characteristic
expression, Winston Churchill said, "the Empires of the future
shall be empires of the mind". Thus, he corroborated Bacon
and professed the emergence of the knowledge society." (ibid,
p.247)

Quadri, J. has well put it in his opinion in Pai Foundation
(para 287) ___ "Education plays a cardinal role in transforming a
society into a civilised nation. It accelerates the progress of the
country in every sphere of national activity. No section of the
citizens can be ignored or left behind because it would hamper
the progress of the country as a whole. It is the duty of the
State to do all it could, to educate every section of citizens who
need a helping hand in marching ahead along with others".

According to Dr. Zakir Hussain, a great statesman with
democratic credentials, a secularist and an educationist, a true
democracy is one where each and every citizen is involved in the
democratic process and this end cannot be achieved unless we
remove the prevailing large-scale illiteracy in our country.
Unless universal education is achieved which allows every citizen
to participate actively in the processes of democracy, we can
never claim to be a true democracy. Dr. Zakir Hussain sought to
ensure that the seeds of knowledge were germinated in the
minds of as many citizens as possible, with a view to enabling
them to perform their assigned roles on the stage of democracy.
[Dr. Zakir Hussain, as quoted by Justice A.M. Ahmadi, the then
Chief Justice of India, (1996) 2 SCC (J) 1, at 2-3.]

Under Article 41 of the Constitution, right to education,
amongst others, is obligated to be secured by the State by
making effective provision therefor. Fundamental duties
recognized by Article 51A include, amongst others, (i) to
develop the scientific temper, humanism and the spirit of inquiry
and reform; and (ii) to strive towards excellence in all spheres of
individual and collective activity so that the nation constantly
rises to higher levels of endeavour and achievement. None can
be achieved or ensured except by means of education. It is well
accepted by the thinkers, philosophers and academicians that if
JUSTICE, LIBERTY, EQUALITY and FRATERNITY, including social,
economic and political justice, the golden goals set out in the
Preamble to the Constitution of India are to be achieved, the
Indian polity has to be educated and educated with excellence.
Education is a national wealth which must be distributed equally
and widely, as far as possible, in the interest of creating an
egalitarian society, to enable the country to rise high and face
global competition. 'Tireless striving stretching its arms towards
perfection' (to borrow the expression from Rabindranath Tagore)
would not be successful unless strengthened by education.


Education is " continual growth of personality, steady
development of character, and the qualitative improvement of
life. A trained mind has the capacity to draw spiritual
nourishment from every experience, be it defeat or victory,
sorrow or joy. Education is training the mind and not stuffing
the brain." (See Eternal Values for A Changing Society, Vol. III
Education for Human Excellence, published by Bharatiya Vidya
Bhavan, Bombay, at p. 19)

"We want that education by which character is formed,
strength of mind is increased, the intellect is expanded, and by
which one can stand on one's own feet." "The end of all
education, all training, should be man-making. The end and aim
of all training is to make the man grow. The training by which
the current and expression of will are brought under control and
become fruitful is called education." (Swami Vivekanand as
quoted in ibid, at p.20)

Education, accepted as a useful activity, whether for
charity or for profit, is an occupation. Nevertheless, it does not
cease to be a service to the society. And even though an
occupation, it cannot be equated to a trade or a business.

In short, education is national wealth essential for the
nation's progress and prosperity.

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

The right to establish an educational institution, for charity
or for profit, being an occupation, is protected by Article 19(1)
(g). Notwithstanding the fact that the right of a minority to
establish and administer an educational institution would be
protected by Article 19(1)(g) yet the Founding Fathers of the
Constitution felt the need of enacting Article 30. The reasons
are too obvious to require elaboration. Article 30(1) is intended
to instill confidence in minorities against any executive or
legislative encroachment on their right to establish and
administer educational institution of their choice. Article 30(1)
though styled as a right, is more in the nature of protection for
minorities. But for Article 30, an educational institution, even
though based on religion or language, could have been
controlled or regulated by law enacted under Clause (6) of
Article 19, and so, Article 30 was enacted as a guarantee to the
minorities that so far as the religious or linguistic minorities are
concerned, educational institutions of their choice will enjoy
protection from such legislation. However, such institutions
cannot be discriminated against by the State solely on account of
their being minority institutions. The minorities being
numerically less qua non-minorities, may not be able to protect
their religion or language and such cultural values and their
educational institutions will be protected under Article 30, at the
stage of law making. However, merely because Article 30(1) has
been enacted, minority educational institutions do not become
immune from the operation of regulatory measure because the
right to administer does not include the right to mal-administer.
To what extent the State regulation can go, is the issue. The
real purpose sought to be achieved by Article 30 is to give
minorities some additional protection. Once aided, the autonomy
conferred by the protection of Article 30(1) on the minority
educational institution is diluted as provisions of Article 29(2) will
be attracted. Certain conditions in the nature of regulations can
legitimately accompany the State aid.

As an occupation, right to impart education is a
fundamental right under Article 19(1)(g) and, therefore, subject
to control by clause (6) of Article 19. This right is available to all
citizens without drawing a distinction between minority and non-
minority. Such a right is, generally speaking, subject to laws
imposing reasonable restrictions in the interest of the general
public. In particular, laws may be enacted on the following
subjects: (i) the professional or technical qualifications necessary
for practicing any profession or carrying on any occupation,
trade or business; (ii) the carrying on by the State, or by a
corporation owned or controlled by the State of any trade,
business, industry or service whether to the exclusion, complete
or partial of citizens or otherwise. Care is taken of minorities,
religious or linguistic, by protecting their right to establish and
administer educational institutions of their choice under Article
30. To some extent, what may be permissible by way of
restriction under Article 19(6) may fall foul of Article 30. This is
the additional protection which Article 30(1) grants to the
minorities.

The employment of expressions 'right to establish and
administer' and 'educational institution of their choice' in Article
30(1) gives the right a very wide amplitude. Therefore, a
minority educational institution has a right to admit students of
its own choice, it can, as a matter of its own freewill, admit
students of non-minority community. However, non-minority
students cannot be forced upon it. The only restriction on the
freewill of the minority educational institution admitting students
belonging to non-minority community is, as spelt out by Article
30 itself, that the manner and number of such admissions should
not be violative of the minority character of the institution.

Aid and affiliation or recognition, both by State, bring in
some amount of regulation as a condition of receiving grant or
recognition. The scope of such regulations, as spelt out by
6-Judge Bench decision in Rev. Sidhrajbhai case AIR 1963 SC
540 and 9-Judge Bench case in St. Xavier's must satisfy the
following tests: (a) the regulation is reasonable and rational; (b)
it is regulative of the essential character of the institution and is
conducive to making the institution an effective vehicle of
education for the minority community or other persons who
resort to it; (c) it is directed towards maintaining excellence of
the education and efficiency of administration so as to prevent it
from falling in standards. These tests have met the approval of
Pai Foundation. However, Rev. Sidhrajbhai's case and St.
Xavier's go on to say that no regulation can be cast in 'the
interest of the nation' if it does not serve the interest of the
minority as well. This proposition (except when it is read in the
light of the opinion of Quadri, J.) stands overruled in Pai
Foundation where Kirpal, CJ, speaking for majority has ruled
(vide para 107) ___ "any regulation framed in the national
interest must necessarily apply to all educational institutions,
whether run by the majority or the minority. Such a limitation
must necessarily be read into Article 30. The right under Article
30(1) cannot be such as to override the national interest or to
prevent the Government from framing regulations in that
behalf". (Also see, paras 117 to 123 and para 138 of Pai
Foundation where Kirpal, CJ has dealt with St. Xavier's in
details). No right can be absolute. Whether a minority or a non-
minority, no community can claim its interest to be above the
national interest.

'Minority' And 'Minority Educational Institutions'
The term 'minority' is not defined in the Constitution.
Chief Justice Kirpal, speaking for the majority in Pai
Foundation, took clue from the provisions of the State
Reorganisation Act and held that in view of India having been
divided into different linguistic States, carved out on the basis of
the language of the majority of persons of that region, it is the
State, and not the whole of India, that shall have to be taken as
the unit for determining linguistic minority viz-a-viz Article 30.
Inasmuch as Article 30(1) places on par religions and languages,
he held that the minority status, whether by reference to
language or by reference to religion, shall have to be determined
by treating the State as unit. The principle would remain the
same whether it is a Central legislation or a State legislation
dealing with linguistic or religious minority. Khare, J. (as His
Lordship then was), Quadri, J. and Variava & Bhan, JJ. in their
separate concurring opinions agreed with Kirpal, CJ. According
to Khare, J., take the population of any State as a unit, find out
its demography and calculate if the persons speaking a particular
language or following a particular religion are less than 50% of
the population, then give them the status of linguistic or
religious minority. The population of the entire country is
irrelevant for the purpose of determining such status. Quadri, J.
opined that the word 'minority' literally means 'a non-dominant'
group. Ruma Pal, J. defined the word 'minority' to mean
'numerically less'. However, she refused to take the State as a
unit for the purpose of determining minority status as, in her
opinion, the question of minority status must be determined with
reference to the country as a whole. She assigned reasons for
the purpose. Needless to say, her opinion is a lone voice. Thus,
with the dictum of Pai Foundation, it cannot be doubted that
minority, whether linguistic or religious, is determinable only by
reference to the demography of a State and not by taking into
consideration the population of the country as a whole.

Such definition of minority resolves one issue but gives
rise to many a questions when it comes to defining 'minority
educational institution'. Whether a minority educational
institution, though established by a minority, can cater to the
needs of that minority only? Can there be an enquiry to identify
the person or persons who have really established the
institution? Can a minority institution provide cross-border or
inter-State educational facilities and yet retain the character of
minority educational institution?

In Kerala Education Bill, the scope and ambit of right
conferred by Article 30(1) came up for consideration. Article
30(1) does not require that minorities based on religion should
establish educational institutions for teaching religion only or
that linguistic minority should establish educational institution for
teaching its language only. The object underlying Article 30(1)
is to see the desire of minorities being fulfilled that their children
should be brought up properly and efficiently and acquire
eligibility for higher university education and go out in the world
fully equipped with such intellectual attainments as will make
them fit for entering public services, educational institutions
imparting higher instructions including general secular
education. Thus, the twin objects sought to be achieved by
Article 30(1) in the interest of minorities are: (i) to enable such
minority to conserve its religion and language, and (ii) to give a
thorough, good general education to the children belonging to
such minority. So long as the institution retains its minority
character by achieving and continuing to achieve the above said
two objectives, the institution would remain a minority
institution.

The learned Judges in Kerala Education Bill were posed
with the issue projected by Article 29(2). What will happen if
the institution was receiving aid out of State funds? The
apparent conflict was resolved by the Judges employing a
beautiful expression. They said, Article 29(2) and 30(1), read
together, clearly contemplate a minority institution with a
'sprinkling of outsiders' admitted in it. By admitting a member
of non-minority into the minority institution, it does not shed its
character and cease to be a minority institution. The learned
Judges went on to observe that such 'sprinkling' would enable
the distinct language, script and culture of a minority being
propagated amongst non-members of a particular minority
community and that would indeed better serve the object of
conserving the language, religion and culture of that minority.

Chief Justice Hidayatullah, speaking for the Constitution
Bench in State of Kerala, Etc. v. Very Rev. Mother
Provincial, Etc., (1970) 2 SCC 417, has not used the
expression 'sprinkling' but has explained the reason why that
was necessary. He said ___ "It matters not if a single
philanthropic individual with his own means, founds the
institution or the community at large contributes the funds. The
position in law is the same and the intention in either case must
be to found an institution for the benefit of a minority
community by a member of that community. It is equally
irrelevant that in addition to the minority community others from
other minority communities or even from the majority
community can take advantage of these institutions. Such other
communities bring in income and they do not have to be turned
away to enjoy the protection". (para 8)

Much of controversy can be avoided if only the nature of
the right conferred by Articles 29 and 30 is clearly understood.
The nature and content of these articles stands more than
clarified and reconciled inter se as also with other articles if only
we understand that these two articles are intended to confer
protection on minorities rather than a right as such. In St.
Stephen's, their Lordships clearly held (vide para 28) that
Article 30(1) is "a protective measure only" and further said
(vide para 59) that Article 30(1) implied certain 'privilege'.
Articles 29 and 30 can be better understood and utilized if read
as a protection and/or a privilege of minority rather than an
abstract right.

In this background arises the complex question of trans-
border operation of Article 30(1). Pai Foundation has clearly
ruled in favour of the State (or a province) being the unit for the
purpose of deciding minority. By this declaration of law, certain
consequences follow. First, every community in India becomes a
minority because in one or the other State of the country it will
be in minority ___ linguistic or religious. What would happen if a
minority belonging to a particular State establishes an
educational institution in that State and administers it but for the
benefit of members belonging to that minority domiciled in the
neighbouring State where that community is in majority? Would
it not be a fraud on the Constitution? In St. Stephen's, their
Lordships had ruled that Article 31 is a protective measure only
for the benefit of religious and linguistic minorities and "no illfit
or camouflaged institution should get away with the
constitutional protection" (para 28). The question need not
detain us for long as it stands answered in no uncertain terms in
Pai Foundation. Emphasising the need for preserving its
minority character so as to enjoy the privilege of protection
under Article 30(1), it is necessary that the objective of
establishing the institution was not defeated. "If so, such an
institution is under an obligation to admit the bulk of the
students fitting into the description of the minority community.
Therefore, the students of that group residing in the State in
which the institution is located have to be necessarily admitted
in a large measure because they constitute the linguistic
minority group as far as that State is concerned. In other
words, the predominance of linguistic students hailing from the
State in which the minority educational institution is established
should be present. The management bodies of such institutions
cannot resort to the device of admitting the linguistic students of
the adjoining State in which they are in a majority, under the
fagade of the protection given under Article 30(1)." (para 153).
The same principle applies to religious minority. If any other
view was to be taken, the very objective of conferring the
preferential right of admission by harmoniously constructing
Articles 30(1) and 29(2), may be distorted.
It necessarily follows from the law laid down in Pai
Foundation that to establish a minority institution the
institution must primarily cater to the requirements of that
minority of that State else its character of minority institution is
lost. However, to borrow the words of Chief Justice S.R. Das (in
Kerala Education Bill) a 'sprinkling' of that minority from other
State on the same footing as a sprinkling of non-minority
students, would be permissible and would not deprive the
institution of its essential character of being a minority institution
determined by reference to that State as a unit.
Minority educational institutions: classifiable in three
To establish an educational institution is a Fundamental
Right. Several educational institutions have come up. In Kerala
Education Bill, 'minority educational institutions' came to be
classified into three categories, namely, (i) those which do not
seek either aid or recognition from the State; (ii) those which
want aid; and (iii) those which want only recognition but not aid.
It was held that the first category protected by Article 30(1) can
"exercise that right to their hearts' content" unhampered by
restrictions. The second category is most significant. Most of the
educational institutions would fall in that category as no
educational institution can, in modern times, afford to subsist
and efficiently function without some State aid. So is with the
third category. An educational institution may survive without
aid but would still stand in need of recognition because in the
absence of recognition, education imparted therein may not
really serve the purpose as for want of recognition the students
passing out from such educational institutions may not be
entitled to admission in other educational institutions for higher
studies and may also not be eligible for securing jobs. Once an
educational institution is granted aid or aspires for recognition,
the State may grant aid or recognition accompanied by certain
restrictions or conditions which must be followed as essential to
the grant of such aid or recognition. This Court clarified in
Kerala Educational Bill that 'the right to establish and
administer educational institutions' conferred by Article 30(1)
does not include the right to mal-administer, and that is very
obvious. Merely because an educational institution belongs to
minority it cannot ask for aid or recognition though running in
unhealthy surroundings, without any competent teachers and
which does not maintain even a fair standard of teaching or
which teaches matters subversive to the welfare of the scholars.
Therefore, the State may prescribe reasonable regulations to
ensure the excellence of the educational institutions to be
granted aid or to be recognized. To wit, it is open to the State to
lay down conditions for recognition such as, an institution must
have a particular amount of funds or properties or number of
students or standard of education and so on. The dividing line is
that in the name of laying down conditions for aid or recognition
the State cannot directly or indirectly defeat the very protection
conferred by Article 30(1) on the minority to establish and
administer educational institutions. Dealing with the third
category of institutions, which seek only recognition but not aid,
their Lordships held that 'the right to establish and administer
educational institutions of their choice' must mean the right to
establish real institutions which will effectively serve the needs of
the community and scholars who resort to these educational
institutions. The dividing line between how far the regulation
would remain within the constitutional limits and when the
regulations would cross the limits and be vulnerable is fine yet
perceptible and has been demonstrated in several judicial
pronouncements which can be cited as illustrations. They have
been dealt with meticulous precision coupled with brevity by S.B.
Sinha, J. in his opinion in Islamic Academy. The
considerations for granting recognition to a minority educational
institution and casting accompanying regulation would be similar
as applicable to a non-minority institution subject to two
overriding considerations: (i) the recognition is not denied solely
on the ground of the educational institution being one belonging
to minority, and (ii) the regulation is neither aimed at nor has
the effect of depriving the institution of its minority status.

Article 30(1) speaks of 'educational institutions' generally
and so does Article 29(2). These Articles do not draw any
distinction between an educational institution dispensing
theological education or professional or non-professional
education. However, the terrain of thought as has developed
through successive judicial pronouncements culminating in Pai
Foundation is that looking at the concept of education, in the
backdrop of constitutional provisions, the professional
educational institutions constitute a class by themselves as
distinguished from the educational institutions imparting non-
professional education. It is not necessary for us to go deep into
this aspect of the issue posed before us inasmuch as Pai
Foundation has clarified that merit and excellence assume
special significance in the context of professional studies. Though
merit and excellence are not anathema to non-professional
education, yet at that level and due to the nature of education
which is more general, merit and excellence do not stand in need
of that degree thereof, as is called for in the context of
professional education.

Difference between professional and non-professional
education institutions.

Dealing with unaided minority educational institutions, Pai
Foundation holds that Article 30 does not come in the way of
the State stepping in for the purpose of securing transparency
and recognition of merit in the matter of admissions. Regulatory
measures for ensuring educational standards and maintaining
excellence thereof are no anathema to the protection conferred
by Article 30(1). However, a distinction is to be drawn between
unaided minority educational institution of the level of schools
and undergraduate colleges on one side and the institutions of
higher education, in particular, those imparting professional
education on the other side. In the former, the scope for merit
based selection is practically nil and hence may not call for
regulation. But in the case of latter, transparency and merit
have to be unavoidably taken care of and cannot be
compromised. There could be regulatory measures for ensuring
educational standards and maintaining excellence thereof. (See
para 161, Answer to Q.4, in Pai Foundation). The source of
this distinction between two types of educational institutions
referred to hereinabove is to be found in the principle that right
to administer does not include a right to mal-administer.

S.B. Sinha, J. has, in his separate opinion in Islamic
Academy, described (in para 199) the situation as a pyramid
like situation and suggested the right of minority to be read
along with fundamental duty. Higher the level of education,
lesser are the seats and higher weighs the consideration for
merit. It will, necessarily, call for more State intervention and
lesser say for minority.

Educational institutions imparting higher education, i.e.
graduate level and above and in particular specialized education
such as technical or professional, constitutes a separate class.
While embarking upon resolving issues of constitutional
significance, where the letter of the Constitution is not clear, we
have to keep in view the spirit of the Constitution, as spelt out
by its entire scheme. Education aimed at imparting professional
or technical qualifications stand on a different footing from other
educational instructions. Apart from other provisions, Article
19(6) is a clear indicator and so are clauses (h) and (j) of Article
51A. Education upto undergraduate level aims at imparting
knowledge just to enrich mind and shape the personality of a
student. Graduate level study is a doorway to admissions in
educational institutions imparting professional or technical or
other higher education and, therefore, at that level, the
considerations akin to those relevant for professional or technical
educational institutions step in and become relevant. This is in
national interest and strengthening the national wealth,
education included. Education up to undergraduate level on one
hand and education at graduate and post-graduate levels and in
professional and technical institutions on the other are to be
treated on different levels inviting not identical considerations, is
a proposition not open to any more debate after Pai
Foundation. A number of legislations occupying the field of
education whose constitutional validity has been tested and
accepted suggest that while recognition or affiliation may not be
a must for education up to undergraduate level or, even if
required, may be granted as a matter of routine, recognition or
affiliation is a must and subject to rigorous scrutiny when it
comes to educational institutions awarding degrees, graduate or
post-graduate, post-graduate diplomas and degrees in technical
or professional disciplines. Some such legislations are found
referred in paras 81 and 82 of S.B. Sinha, J's opinion in Islamic
Academy.

Having so stated and clarified these principles which would
be germane to answering the four questions posed before us,
now we take up each of the four questions seriatim and answer
the same.

And yet, before we do so, let us quote and reproduce
paragraphs 68, 69 and 70 from Pai Foundation to enable easy
reference thereto as the core of controversy touching the four
questions which we are dealing with seems to have originated
therefrom. These paragraphs read as under:
"68.(I) It would be unfair to apply the
same rules and regulations regulating
admission to both aided and unaided
professional institutions. It must be borne in
mind that unaided professional institutions are
entitled to autonomy in their administration
while, at the same time, they do not forego or
discard the principle of merit. It would,
therefore, be permissible for the university or
the Government, at the time of granting
recognition, to require a private unaided
institution to provide for merit-based selection
while, at the same time, giving the
management sufficient discretion in admitting
students. This can be done through various
methods.

(II) For instance, a certain percentage of
the seats can be reserved for admission by the
management out of those students who have
passed the common entrance test held by itself
or by the State/university and have applied to
the college concerned for admission, while the
rest of the seats may be filled up on the basis
of counselling by the State agency. This will
incidentally take care of poorer and backward
sections of the society. The prescription of
percentage for this purpose has to be done by
the Government according to the local needs
and different percentages can be fixed for
minority unaided and non-minority unaided
and professional colleges. The same principles
may be applied to other non-professional but
unaided educational institutions viz. graduation
and post-graduation non-professional colleges
or institutes.

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

70. It is well established all over the world
that those who seek professional education
must pay for it. The number of seats available
in government and government-aided colleges
is very small, compared to the number of
persons seeking admission to the medical and
engineering colleges. All those eligible and
deserving candidates who could not be
accommodated in government colleges would
stand deprived of professional education. This
void in the field of medical and technical
education has been filled by institutions that
are established in different places with the aid
of donations and the active part taken by
public-minded individuals. The object of
establishing an institution has thus been to
provide technical or professional education to
the deserving candidates, and is not
necessarily a commercial venture. In order
that this intention is meaningful, the institution
must be recognized. At the school level, the
recognition or affiliation has to be sought from
the educational authority or the body that
conducts the school-leaving examination. It is
only on the basis of that examination that a
school-leaving certificate is granted, which
enables a student to seek admission in further
courses of study after school. A college or a
professional educational institution has to get
recognition from the university concerned,
which normally requires certain conditions to
be fulfilled before recognition. It has been held
that conditions of affiliation or recognition,
which pertain to the academic and educational
character of the institution and ensure
uniformity, efficiency and excellence in
educational courses are valid, and that they do
not violate even the provisions of Article 30 of
the Constitution; but conditions that are laid
down for granting recognition should not be
such as may lead to governmental control of
the administration of the private educational
institutions.

In Islamic Academy the majority has (vide para 12)
paraphrased the contents of para 68 by dividing it into seven
parts. S.B. Sinha, J has read the same para 68 by paraphrasing
it in five parts (vide para 172 of his opinion). However, we have
reproduced para 68 by dividing it into two parts. A reading of
the majority judgment in Pai Foundation in its entirety
supports the conclusion that while the first part of para 68 is law
laid down by the majority, the second part is only by way of
illustration, tantamounting to just a suggestion or observation,
as to how the State may devise a possible mechanism so as to
take care of poor and backward sections of the society. The
second part of para 68 cannot be read as law laid down by the
Bench. It is only an observation in passing or an illustrative
situation which may be reached by consent or agreement or
persuasion.

A Comment
It was submitted at the Bar that a flourish of language or
just a flow of thoughts placed on paper when read in isolation
gives an impression as if such is the law laid down though in
reality even the author of the judgment had not intended to do
so. A mere observation or a reasoning leading to formulation of
ultimate opinion on a disputed question of law cannot be read as
a ratio of the decision. Such submissions forcefully advanced at
the Bar, have been kept in view by us while reading the several
opinions in Pai Foundation and Islamic Academy. In Islamic
Academy the petitioners-applicants were private unaided
institutions (minority and non-minority both) and the petitioners-
applicants before us are also private unaided institutions, non-
minority and minority (religions and linguistic) both. It was
submitted that the majority opinion in Islamic Academy has,
while embarking upon clarifying the law laid down in Pai
Foundation, not only reiterated some of the propositions of law
laid down in Pai Foundation but has also added something
more which was not said in Pai Foundation and the two have
been so intertwined as to become inseparable and that has been
the reason for a spate of litigation post Islamic Academy. S.B.
Sinha, J., writing his separate opinion in Islamic Academy, has
not himself chosen to say whether his is a concurring opinion or
a dissenting one. However, it was pointed out that S.B. Sinha,
J's opinion is analytical, clear and more in consonance with the
majority opinion of Pai Foundation. It was urged that the task
was difficult and unwittingly, for the sake of aiming at brevity,
certain omissions have taken place. Illustratively it was pointed
out that vide para 59 of Pai Foundation Kirpal, CJ, has said ___
"Merit is usually determined, for
admission to professional and higher education
colleges, by either the marks that the student
obtains at the qualifying examination or
school-leaving certificate stage followed by the
interview, or by a common entrance test
conducted by the institution, or in the case of
professional colleges, by government
agencies." (emphasis by us)

In Islamic Academy, vide para 70, sub-para (2)(i)(a),
the abovesaid passage has been quoted as under:-
"Admission to professional colleges
should be based on merit by a common
entrance test conducted by the government
agencies". (emphasis by us)

It was pointed out that Pai Foundation vide para 59 was
just making a note of what is 'prevailing as the usual systems'
for admitting students but Islamic Academy vide para 70 gives
an impression that the view taken in Pai Foundation is to
confine to common entrance test conducted by the government
agencies as the only source of admission to professional
colleges.

While expressing their appreciation of the task performed
in Islamic Academy of attempting resolution of several issues
raised post Pai Foundation, the learned counsel addressing us
have tried to put across and demonstrate several such anomalies
which Islamic Academy read in juxta position with Pai
Foundation has raised.

Having generally dealt with the several legal propositions,
relevant for our purpose, now we come to specifically dealing
with the questions before us.

Q.1. Unaided educational institutions; appropriation of
quota by State and enforcement of reservation policy

First, we shall deal with minority unaided institutions.

We have in the earlier part of this judgment referred to
Kerala Education Bill and stated the three categories of
minority educational institutions as classified and dealt with
therein. The 7-Judge Bench decision in Kerala Education Bill
still holds the field and has met the approval of 11-Judge Bench
in Pai Foundation. We cull out and state what Pai Foundation
has to say about such category of institutions:-

(i) Minority educational institution, unaided and
unrecognized

Pai Foundation is unanimous on the view that the right
to establish and administer an institution, the phrase as
employed in Article 30(1) of the Constitution, comprises of the
following rights: (a) to admit students; (b) to set up a
reasonable fee structure; (c) to constitute a governing body; (d)
to appoint staff (teaching and non-teaching); and (e) to take
action if there is dereliction of duty on the part of any of the
employees. (para 50)

A minority educational institution may choose not to take
any aid from the State and may also not seek any recognition or
affiliation. It may be imparting such instructions and may have
students learning such knowledge that do not stand in need of
any recognition. Such institutions would be those where
instructions are imparted for the sake of instructions and
learning is only for the sake of learning and acquiring
knowledge. Obviously, such institutions would fall in the
category of those who would exercise their right under the
protection and privilege conferred by Article 30(1) "to their
hearts content" unhampered by any restrictions excepting those
which are in national interest based on considerations such as
public safety, national security and national integrity or are
aimed at preventing exploitation of students or teaching
community. Such institutions cannot indulge in any activity
which is violative of any law of the land.

They are free to admit all students of their own minority
community if they so choose to do. (para 145, Pai Foundation)

(ii) Minority unaided educational institutions asking for
affiliation or recognition

Affiliation or recognition by the State or the Board or the
University competent to do so, cannot be denied solely on the
ground that the institution is a minority educational institution.
However, the urge or need for affiliation or recognition brings in
the concept of regulation by way of laying down conditions
consistent with the requirement of ensuring merit, excellence of
education and preventing mal-administration. For example,
provisions can be made indicating the quality of the teachers by
prescribing the minimum qualifications that they must possess
and the courses of studies and curricula. The existence of
infrastructure sufficient for its growth can be stipulated as a pre-
requisite to the grant of recognition or affiliation. However,
there cannot be interference in the day-to-day administration.
The essential ingredients of the management, including
admission of students, recruiting of staff and the quantum of fee
to be charged, cannot be regulated. (para 55, Pai Foundation)

Apart from the generalized position of law that right to
administer does not include right to mal-administer, an
additional source of power to regulate by enacting condition
accompanying affiliation or recognition exists. Balance has to be
struck between the two objectives: (i) that of ensuring the
standard of excellence of the institution, and (ii) that of
preserving the right of the minority to establish and administer
its educational institution. Subject to reconciliation of the two
objectives, any regulation accompanying affiliation or recognition
must satisfy the triple tests: (i) the test of resonableness and
rationality, (ii) the test that the regulation would be conducive to
making the institution an effective vehicle of education for the
minority community or other persons who resort to it, and (iii)
that there is no in-road on the protection conferred by Article
30(1) of the Constitution, that is, by framing the regulation the
essential character of the institution being a minority educational
institution, is not taken away. (para 122, Pai Foundation)

(iii) Minority educational institutions receiving State aid

Conditions which can normally be permitted to be
imposed on the educational institutions receiving the grant must
be related to the proper utilization of the grant and fulfillment of
the objectives of the grant without diluting the minority status of
the educational institution, as held in Pai Foundation (See para
143 thereof). As aided institutions are not before us and we are
not called upon to deal with their cases, we leave the discussion
at that only.

So far as appropriation of quota by the State and
enforcement of its reservation policy is concerned, we do not see
much of difference between non-minority and minority unaided
educational institutions. We find great force in the submission
made on behalf of the petitioners that the States have no power
to insist on seat sharing in the unaided private professional
educational institutions by fixing a quota of seats between the
management and the State. The State cannot insist on private
educational institutions which receive no aid from the State to
implement State's policy on reservation for granting admission
on lesser percentage of marks, i.e. on any criterion except merit.

As per our understanding, neither in the judgment of Pai
Foundation nor in the Constitution Bench decision in Kerala
Education Bill, which was approved by Pai Foundation, there
is anything which would allow the State to regulate or control
admissions in the unaided professional educational institutions so
as to compel them to give up a share of the available seats to
the candidates chosen by the State, as if it was filling the seats
available to be filled up at its discretion in such private
institutions. This would amount to nationalization of seats which
has been specifically disapproved in Pai Foundation. Such
imposition of quota of State seats or enforcing reservation policy
of the State on available seats in unaided professional
institutions are acts constituting serious encroachment on the
right and autonomy of private professional educational
institutions. Such appropriation of seats can also not be held to
be a regulatory measure in the interest of minority within the
meaning of Article 30(1) or a reasonable restriction within the
meaning of Article 19(6) of the Constitution. Merely because the
resources of the State in providing professional education are
limited, private educational institutions, which intend to provide
better professional education, cannot be forced by the State to
make admissions available on the basis of reservation policy to
less meritorious candidate. Unaided institutions, as they are not
deriving any aid from State funds, can have their own
admissions if fair, transparent, non-exploitative and based on
merit.

The observations in paragraph 68 of the majority opinion
in Pai Foundation, on which the learned counsel for the parties
have been much at variance in their submissions, according to
us, are not to be read disjointly from other parts of the main
judgment. A few observations contained in certain paragraphs of
the judgment in Pai Foundation, if read in isolation, appear
conflicting or inconsistent with each other. But if the
observations made and the conclusions derived are read as a
whole, the judgment nowhere lays down that unaided private
educational institutions of minorities and non-minorities can be
forced to submit to seat sharing and reservation policy of the
State. Reading relevant parts of the judgment on which learned
counsel have made comments and counter comments and
reading the whole judgment (in the light of previous judgments
of this Court, which have been approved in Pai Foundation) in
our considered opinion, observations in paragraph 68 merely
permit unaided private institutions to maintain merit as the
criterion of admission by voluntarily agreeing for seat sharing
with the State or adopting selection based on common entrance
test of the State. There are also observations saying that they
may frame their own policy to give free-ships and scholarships to
the needy and poor students or adopt a policy in line with the
reservation policy of the state to cater to the educational needs
of weaker and poorer sections of the society.

Nowhere in Pai Foundation, either in the majority or in
the minority opinion, have we found any justification for
imposing seat sharing quota by the State on unaided private
professional educational institutions and reservation policy of the
State or State quota seats or management seats.


We make it clear that the observations in Pai Foundation
in paragraph 68 and other paragraphs mentioning fixation of
percentage of quota are to be read and understood as possible
consensual arrangements which can be reached between
unaided private professional institutions and the State.


In Pai Foundation, it has been very clearly held at
several places that unaided professional institutions should be
given greater autonomy in determination of admission procedure
and fee structure. State regulation should be minimal and only
with a view to maintain fairness and transparency in admission
procedure and to check exploitation of the students by charging
exorbitant money or capitation fees.


For the aforesaid reasons, we cannot approve of the
scheme evolved in Islamic Academy to the extent it allows
States to fix quota for seat sharing between management and
the States on the basis of local needs of each State, in the
unaided private educational institutions of both minority and
non-minority categories. That part of the judgment in Islamic
Academy, in our considered opinion, does not lay down the
correct law and runs counter to Pai Foundation.

NRI seats
Here itself we are inclined to deal with the question as to
seats allocated for Non-Resident Indians ('NRI', for short) or NRI
seats. It is common knowledge that some of the institutions
grant admissions to certain number of students under such
quota by charging a higher amount of fee. In fact, the term
'NRI' in relation to admissions is a misnomer. By and large, we
have noticed in cases after cases coming to this Court, neither
the students who get admissions under this category nor their
parents are NRIs. In effect and reality, under this category, less
meritorious students, but who can afford to bring more money,
get admission. During the course of hearing, it was pointed out
that a limited number of such seats should be made available as
the money brought by such students admitted against NRI quota
enables the educational institutions to strengthen its level of
education and also to enlarge its educational activities. It was
also pointed out that people of Indian origin, who have migrated
to other countries, have a desire to bring back their children to
their own country as they not only get education but also get
reunited with Indian cultural ethos by virtue of being here. They
also wish the money which they would be spending elsewhere on
education of their children should rather reach their own
motherland. A limited reservation of such seats, not exceeding
15%, in our opinion, may be made available to NRIs depending
on the discretion of the management subject to two conditions.
First, such seats should be utilized bona fide by the NRIs only
and for their children or wards. Secondly, within this quota, the
merit should not be given a complete go-by. The amount of
money, in whatever form collected from such NRIs, should be
utilized for benefiting students such as from economically weaker
sections of the society, whom, on well defined criteria, the
educational institution may admit on subsidized payment of their
fee. To prevent misutilisation of such quota or any malpractice
referable to NRI quota seats, suitable legislation or regulation
needs to be framed. So long as the State does not do it, it will
be for the Committees constituted pursuant to Islamic
Academy's direction to regulate.

Our answer to the first question is that neither the policy
of reservation can be enforced by the State nor any quota or
percentage of admissions can be carved out to be appropriated
by the State in a minority or non-minority unaided educational
institution. Minority institutions are free to admit students of
their own choice including students of non-minority community
as also members of their own community from other States,
both to a limited extent only and not in a manner and to such an
extent that their minority educational institution status is lost. If
they do so, they lose the protection of Article 30(1).
Q.2. Admission procedure of unaided educational
institutions.
So far as the minority unaided institutions are concerned
to admit students being one of the components of "right to
establish and administer an institution", the State cannot
interfere therewith. Upto the level of undergraduate education,
the minority unaided educational institutions enjoy total
freedom.

However, different considerations would apply for graduate
and post-graduate level of education, as also for technical and
professional educational institutions. Such education cannot be
imparted by any institution unless recognized by or affiliated
with any competent authority created by law, such as a
University, Board, Central or State Government or the like.
Excellence in education and maintenance of high standards at
this level are a must. To fulfill these objectives, the State can
and rather must, in national interest, step in. The education,
knowledge and learning at this level possessed by individuals
collectively constitutes national wealth.

Pai Foundation has already held that the minority status
of educational institutions is to be determined by treating the
States as units. Students of that community residing in other
States where they are not in minority, shall not be considered to
be minority in that particular State and hence their admission
would be at par with other non-minority students of that State.
Such admissions will be only to a limited extent that is like a
'sprinkling' of such admissions, the term we have used earlier
borrowing from Kerala Education Bill, 1957. In minority
educational institutions, aided or unaided, admissions shall be at
the State level. Transparency and merit shall have to be
assured.

Whether minority or non-minority institutions, there may
be more than one similarly situated institutions imparting
education in any one discipline, in any State. The same aspirant
seeking admission to take education in any one discipline of
education shall have to purchase admission forms from several
institutions and appear at several admission tests conducted at
different places on same or different dates and there may be a
clash of dates. If the same candidate is required to appear in
several tests, he would be subjected to unnecessary and
avoidable expenditure and inconvenience. There is nothing
wrong in an entrance test being held for one group of institutions
imparting same or similar education. Such institutions situated
in one State or in more than one State may join together and
hold a common entrance test or the State may itself or through
an agency arrange for holding of such test. Out of such common
merit list the successful candidates can be identified and chosen
for being allotted to different institutions depending on the
courses of study offered, the number of seats, the kind of
minority to which the institution belongs and other relevant
factors. Such an agency conducting Common Entrance Test
(CET, for short) must be one enjoying utmost credibility and
expertise in the matter. This would better ensure the fulfillment
of twin objects of transparency and merit. CET is necessary in
the interest of achieving the said objectives and also for saving
the student community from harassment and exploitation.
Holding of such common entrance test followed by centralized
counseling or, in other words, single window system regulating
admissions does not cause any dent in the right of minority
unaided educational institutions to admit students of their
choice. Such choice can be exercised from out of list of
successful candidates prepared at the CET without altering the
order of merit inter se of the students so chosen.

Pai Foundation has held that minority unaided
institutions can legitimately claim unfettered fundamental right
to choose the students to be allowed admissions and the
procedure therefor subject to its being fair, transparent and non-
exploitative. The same principle applies to non-minority unaided
institutions. There may be a single institution imparting a
particular type of education which is not being imparted by any
other institution and having its own admission procedure
fulfilling the test of being fair, transparent and non-exploitative.
All institutions imparting same or similar professional education
can join together for holding a common entrance test satisfying
the abovesaid triple tests. The State can also provide a
procedure of holding a common entrance test in the interest of
securing fair and merit-based admissions and preventing mal-
administration. The admission procedure so adopted by private
institution or group of institutions, if it fails to satisfy all or any of
the triple tests, indicated hereinabove, can be taken over by the
State substituting its own procedure. The second question is
answered accordingly.

It needs to be specifically stated that having regard to the
larger interest and welfare of the student community to promote
merit, achieve excellence and curb mal-practices, it would be
permissible to regulate admissions by providing a centralized
and single window procedure. Such a procedure, to a large
extent, can secure grant of merit based admissions on a
transparent basis. Till regulations are framed, the admission
committees can oversee admissions so as to ensure that merit is
not the casualty.

Q. 3 Fee, regulation of
To set up a reasonable fee structure is also a component of
"the right to establish and administer an institution" within the
meaning of Article 30(1) of the Constitution, as per the law
declared in Pai Foundation. Every institution is free to devise
its own fee structure subject to the limitation that there can be
no profiteering and no capitation fee can be charged directly or
indirectly, or in any form (Paras 56 to 58 and 161 [Answer to
Q.5(c)] of Pai Foundation are relevant in this regard).

Capitation Fees
Capitation fee cannot be permitted to be charged and no
seat can be permitted to be appropriated by payment of
capitation fee. 'Profession' has to be distinguished from
'business' or a mere 'occupation'. While in business, and to a
certain extent in occupation, there is a profit motive, profession
is primarily a service to society wherein earning is secondary or
incidental. A student who gets a professional degree by
payment of capitation fee, once qualified as a professional, is
likely to aim more at earning rather than serving and that
becomes a bane to the society. The charging of capitation fee
by unaided minority and non-minority institutions for
professional courses is just not permissible. Similarly,
profiteering is also not permissible. Despite the legal position,
this Court cannot shut its eyes to the hard realities of
commercialization of education and evil practices being adopted
by many institutions to earn large amounts for their private or
selfish ends. If capitation fee and profiteering is to be checked,
the method of admission has to be regulated so that the
admissions are based on merit and transparency and the
students are not exploited. It is permissible to regulate
admission and fee structure for achieving the purpose just
stated.

Our answer to Question-3 is that every institution is free to
devise its own fee structure but the same can be regulated in the
interest of preventing profiteering. No capitation fee can be
charged.

Q.4. Committees formed pursuant to Islamic Academy

Most vehement attack was laid by all the learned counsel
appearing for the petitioner-applicants on that part of Islamic
Academy which has directed the constitution of two committees
dealing with admissions and fee structure. Attention of the Court
was invited to paras 35,37, 38, 45 and 161 (answer to question
9) of Pai Foundation wherein similar scheme framed in Unni
Krishnan was specifically struck down. Vide para 45, Chief
Justice Kirpal has clearly ruled that the decision in Unni
Krishnan insofar as it framed the scheme relating to the grant
of admission and the fixing of the fee, was not correct and to
that extent the said decision and the consequent directions given
to UGC, AICTE, MCI, the Central and the State Governments etc.
are overruled. Vide para 161, Pai Foundation upheld Unni
Krishnan to the extent to which it holds the right to primary
education as a fundamental right, but the scheme was overruled.
However, the principle that there should not be capitation fee or
profiteering was upheld. Leverage was allowed to educational
institutions to generate reasonable surplus to meet cost of
expansion and augmentation of facilities which would not
amount to profiteering. It was submitted that Islamic Academy
has once again restored such Committees which were done away
with by Pai Foundation.

The learned senior counsel appearing for different private
professional institutions, who have questioned the scheme of
permanent Committees set up in the judgment of Islamic
Academy, very fairly do not dispute that even unaided
minority institutions can be subjected to regulatory measures
with a view to curb commercialization of education, profiteering
in it and exploitation of students. Policing is permissible but not
nationalization or total take over, submitted Shri Harish Salve,
the learned senior counsel. Regulatory measures to ensure
fairness and transparency in admission procedures to be based
on merit have not been opposed as objectionable though a
mechanism other than formation of Committees in terms of
Islamic Academy was insisted on and pressed for. Similarly, it
was urged that regulatory measures, to the extent permissible,
may form part of conditions of recognition and affiliation by the
university concerned and/or MCI and AICTE for maintaining
standards of excellence in professional education. Such
measures have also not been questioned as violative of the
educational rights of either minorities or non- minorities.

The two committees for monitoring admission
procedure and determining fee structure in the judgment of
Islamic Academy, are in our view, permissive as regulatory
measures aimed at protecting the interest of the student
community as a whole as also the minorities themselves, in
maintaining required standards of professional education on non-
exploitative terms in their institutions. Legal provisions made by
the State Legislatures or the scheme evolved by the Court for
monitoring admission procedure and fee fixation do not violate
the right of minorities under Article 30(1) or the right of
minorities and non-minorities under Article 19(1)(g). They are
reasonable restrictions in the interest of minority institutions
permissible under Article 30(1) and in the interest of general
public under Article 19(6) of the Constitution.

The suggestion made on behalf of minorities and non-
minorities that the same purpose for which Committees have
been set up can be achieved by post-audit or checks after the
institutions have adopted their own admission procedure and fee
structure, is unacceptable for the reasons shown by experience
of the educational authorities of various States. Unless the
admission procedure and fixation of fees is regulated and
controlled at the initial stage, the evil of unfair practice of
granting admission on available seats guided by the paying
capacity of the candidates would be impossible to curb.

Non-minority unaided institutions can also be subjected to
similar restrictions which are found reasonable and in the
interest of student community. Professional education should be
made accessible on the criterion of merit and on non-exploitative
terms to all eligible students on an uniform basis. Minorities or
non-minorities, in exercise of their educational rights in the field
of professional education have an obligation and a duty to
maintain requisite standards of professional education by giving
admissions based on merit and making education equally
accessible to eligible students through a fair and transparent
admission procedure and on a reasonable fee-structure.

In our considered view, on the basis of judgment in Pai
Foundation and various previous judgments of this Court which
have been taken into consideration in that case, the scheme
evolved of setting up the two Committees for regulating
admissions and determining fee structure by the judgment in
Islamic Academy cannot be faulted either on the ground of
alleged infringement of Article 19(1)(g) in case of unaided
professional educational institutions of both categories and
Article 19(1)(g) read with Article 30 in case of unaided
professional institutions of minorities.

A fortiori, we do not see any impediment to the
constitution of the Committees as a stopgap or adhoc
arrangement made in exercise of the power conferred on this
Court by Article 142 of the Constitution until a suitable
legislation or regulation framed by the State steps in. Such
Committees cannot be equated with Unni Krishnan Committees
which were supposed to be permanent in nature.

However, we would like to sound a note of caution to such
Committees. The learned counsel appearing for the petitioners
have severely criticised the functioning of some of the
Committees so constituted. It was pointed out by citing concrete
examples that some of the Committees have indulged in
assuming such powers and performing such functions as were
never given or intended to be given to them by Islamic
Academy. Certain decisions of some of the Committees were
subjected to serious criticism by pointing out that the fee
structure approved by them was abysmally low which has
rendered the functioning of the institutions almost impossible or
made the institutions run into losses. In some of the
institutions, the teachers have left their job and migrated to
other institutions as it was not possible for the management to
retain talented and highly qualified teachers against the salary
permitted by the Committees. Retired High Court Judges
heading the Committees are assisted by experts in accounts and
management. They also have the benefit of hearing the
contending parties. We expect the Committees, so long as they
remain functional, to be more sensitive and to act rationally and
reasonably with due regard for realities. They should refrain
from generalizing fee structures and, where needed, should go
into accounts, schemes, plans and budgets of an individual
institution for the purpose of finding out what would be an ideal
and reasonable fee structure for that institution.

We make it clear that in case of any individual institution,
if any of the Committees is found to have exceeded its powers
by unduly interfering in the administrative and financial matters
of the unaided private professional institutions, the decision of
the Committee being quasi-judicial in nature, would always be
subject to judicial review.


On Question-4, our conclusion, therefore, is that the
judgment in Islamic Academy, in so far as it evolves the
scheme of two Committees, one each for admission and fee
structure, does not go beyond the law laid down in Pai
Foundation and earlier decisions of this Court, which have been
approved in that case. The challenge to setting up of two
Committees in accordance with the decision in Islamic
Academy, therefore, fails. However, the observation by way
clarification, contained in the later part of para 19 of Islamic
Academy which speaks of quota and fixation of percentage by
State Government is rendered redundant and must go in view of
what has been already held by us in the earlier part of this
judgment while dealing with Question No.1.



Epilogue

We have answered the four questions formulated by us in
the manner indicated hereinabove. All other issues which we
leave untouched, may be dealt with by the regular Benches
which will take up individual cases for decision.

We have placed on record in the earlier part of this
judgment and, yet, before parting we would like to reiterate,
that certain recitals, certain observations and certain findings in
Pai Foundation are contradictory inter se and such conflict can
only be resolved by a Bench of a coram larger than Pai
Foundation. There are several questions which have remained
unanswered and there are certain questions which have propped
up post Pai Foundation and Islamic Academy. To the extent
the area is left open, the Benches hearing individual cases after
this judgment would find the answers. Issues referable to those
areas which are already covered by Pai Foundation and yet
open to question shall have to be answered by a Bench of a
larger coram than Pai Foundation. We leave those issues to be
taken care of by posterity.


We are also conscious of the fact that admission process in
several professional educational institutions has already
commenced. Some admissions have been made or are in the
process of being made in consonance with the schemes and
procedures as approved by Committees and in some cases
pursuant to interim directions made by this Court or by the High
Courts. This judgment shall not have the effect of disturbing the
admissions already made or with regard to which the process
has already commenced. The law, as laid down in this
judgment, shall be given effect to from the academic year
commencing next after the pronouncement of this judgment.

It is for the Central Government, or for the State
Governments, in the absence of a Central legislation, to come
out with a detailed well thought out legislation on the subject.
Such a legislation is long awaited. States must act towards this
direction. Judicial wing of the State is called upon to act when
the other two wings, the Legislature and the Executive, do not
act. Earlier the Union of India and the State Governments act,
the better it would be. The Committees regulating admission
procedure and fee structure shall continue to exist, but only as a
temporary measure and an inevitable passing phase until the
Central Government or the State Governments are able to
devise a suitable mechanism and appoint competent authority in
consonance with the observations made hereinabove. Needless
to say, any decision taken by such Committees and by the

Central or the State Governments, shall be open to judicial review in
accordance with the settled parameters for the exercise of such jurisdiction.
Before parting, we would like to place on record our appreciation of
the valuable assistance rendered by all the learned senior counsel and other
counsel appearing in the case and who have addressed us, highlighting very
many aspects of the ticklish issues in the field of professional education
which have propped up for decision in the light of the 11-Judge Bench
decision in Pai Foundation and Constitution Bench decision in Islamic
Academy. But for their assistance, the issues would have defied resolution.

All the petitions, Civil Appeals and IAs shall now be listed before
appropriate Benches for hearing.