MEDICAL COLLEGE VELLORE ASSOCIATION versus UNION OF INDIA AND OTHERS

516SUPREME COURT REPORTS[2020] 5 S.C.R. 516

[2020] 5 S.C.R.

ACHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION

UNION OF INDIA AND OTHERS

(Transferred Case (Civil) No. 98 of 2012)

BAPRIL 29, 2020

[ARUN MISHRA, VINEET SARAN AND M. R. SHAH, JJ.]

Education/Educational Institutions – National Eligibility-cum-Entrance Test (NEET) if violates fundamental rights guaranteedCu/Arts.19(1)(g), 25, 26, 29(1) & 30 – Notifications issued by MedicalCouncil of India (MCI) and Dental Council of India (DCI) – NEETintroduced for admission to MBBS course, Post- graduate course,BDS, MDS – Initially notifications were quashed – However, thesaid judgment was later recalled – During the pendency of petitions,s.10D, 1956 Act providing for uniform entrance examination forDundergraduate and post-graduate level has come into force – s.10D,1948 Act containing similar provisions w.r.t uniform entranceexamination has also been inserted – Held: Notifications questionedand the amendment made to s.10D as introduced in the 1956 Actand regulations as amended by MCI and similar provisions insertedEin 1948 Act & Regulations, cannot be said to be violating the rightsof the unaided/aided minority to administer institutionsu/Arts.19(1)(g) & 30 r/w Arts. 25, 26 & 29(1) by prescribing theuniform examination of NEET for admissions in the graduate andpostgraduate professional courses of medical as well as dentalscience – Provisions of the Act and regulation cannot be said to beFultra vires the rights guaranteed u/Art. 30(1) r/w Arts. 19(1)(g), 14,25, 26 & 29(1) – It is open to provide regulatory mechanism foradmission for such courses as held in T.M.A.Pai Foundation – Adecision has been taken to regulate admission in professionalcolleges on national basis to wipe out corruption and various evilsGfrom the system– There cannot be any exemption, otherwise, therewould be no end to such claims and multiple examinations – Minorityand private institutions have to admit students based on merit in thepermissible category, based on NEET as per procedure prescribedunder the Act and Regulations – Rights u/Art.19(1)(g) are not

absolute and are subject to reasonable restriction in the interest ofstudent’s community to promote merit, recognition of excellence, andto curb the malpractices – Uniform Entrance Test qualifies the testof proportionality and is reasonable – Constitution of India – Arts.14, 19(1)(g), 19(6), 25, 26 & 29(1), 30, 46, 47, 51A(j) – IndianMedical Council Act, 1956 – s.10D – Regulation on GraduateMedical Education, 1997 – Dentists Act, 1948 – s.10D – PostGraduate Medical Education Regulations, 2000 – Regulations onGraduate Medical Education (Amendment) 2010 (Part II) – Post-Graduate Medical Education (Amendment) Regulation, 2010 (Part-II) – Regulations on Graduate Medical Education (Amendment)2017 – Maharashtra Unaided Private Professional EducationalInstitution (Regulation of Admissions & Fees) Act, 2015.

Disposing of the matters, the Court

HELD: 1.1 The notifications, which are questioned in thematters and the amendment made to Section 10D as introducedin the Act of 1956 and regulations as amended by the MCI andsimilar provisions inserted in the Dentists Act & Regulations,cannot be said to be taking away the rights of the unaided minorityinstitutions or private institutions of making admission in anymanner as it is permissible to provide regulatory mechanism atthe national level and the entrance test applies even to All IndiaInstitute of Medical Science (AIIMS) – the most reputed Instituteof India. It is open to provide the regulatory mechanism foradmission for such courses as held in T.M.A. Pai Foundation thequalification and conditions of eligibility in the interest of academicstandards can be provided, and there could be regulatorymeasures for ensuring educational standards and maintainingexcellence in the matter of professional institution. Thus, thedecision in T.M.A. Pai Foundation rendered by 11-Judge Benchis juxtaposedto the submission raised on behalf of petitioners. InP.A. Inamdar, the Court laid down the triple test of fair,transparent and non-exploitative mechanism and if the admissionprocedure adopted by private institution does not satisfy all orany of the triple tests, it held that the admission procedure canbe taken over by the State substituting its process. This aspectwas gauged in Modern Dental College andResearch Centre in abroader perspective considering prevailing situation ofcapitation

EFGH

518SUPREME COURT REPORTS

[2020] 5 S.C.R.

Afee and education becoming saleable commodity. decision hasbeen taken to regulate admission in professional colleges onnational basis so as to wipe out the corruption and various evilsfrom the system. Even, the NEET has been made applicable tosuch premier institution like All India Institute of MedicalBSciences (AIIMS) and so many others. The decision has beentaken considering the overall national scenario, there cannot beany exemption, otherwise, there would be no end to such claimsand multiple examinations. It would not be possible to eradicateevils. Overall derogatory situation which prevailed beforeintroduction of NEET cannot be restored. Still, there are severalCloopholes, which are to be plugged in the admission procedure.Unscrupulous practices are being adopted by private colleges ofnot admitting students sponsored by centralised counsellingcommittee.The minority and private institutions have to admitstudents based on merit in the permissible category, based onDNEET as per procedure prescribed under the Act andRegulations. [Paras 35, 37 and 38][610-G-H; 611-A-F]

T.M.A. Pai Foundation and Ors. v. State of Karnatakaand Ors.(2002) 8 SCC 481 : [2002] 3 Suppl. SCR587; P. A. Inamdar and Ors. v. State of MaharashtraEand Ors. (2005) 6 SCC 537 : [2005] 2 Suppl. SCR603; Modern Dental College andResearch Centre andOrs. v. State of Madhya Pradesh and Ors.(2016) 7SCC 353 :[2016] 3 SCR 579 – followed.

1.2 The notifications issued, amendment made to SectionF10D of the Act of 1956 and regulations framed by MCI and similarprovisions for dental courses providing for NEET cannot be saidto be impinging upon the rights of the minority and the provisionsof the Act and regulations framed by MCI under the Act of 1956,in DCI Act and regulations are required to be observed by eachand every institution. The regulatory measures under the Act/GRegulations cannot be said to be averse to the interest of suchinstitutions, and such reasonable measurescan be carved out.They do not impinge upon the rights of institutions guaranteedunder Articles 14, 19(1)(g), 25 and 30 of the Constitution of India.There is no reason why conditions for the welfare of students

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATIONv. UNION OF INDIA AND OTHERS

and teachers should not be made, but any law or rule or regulationthat would put the educational institutions run by the minoritiesat disadvantage when compared to the institutions run by theothers will have to be struck down. The law of the land includesrules and regulations that must apply equally to the majority aswell as minority institutions. The minority institutions must beallowed to do what non-minority is permitted to do. They have tocomply with the conditions of recognition, which cannot be suchas to whittle down the right guaranteed under Article 30 of theConstitution. [Paras 41, 42][614-B-C, F-H]

1.3 The NEET has been prescribed by the Legislature inthe larger public interest that has to prevail. The provisions foundto be reasonable conditions of recognition/affiliation are bindingfor the very existence of all such institution whether they are runby majority or minority failing which they cannot exists and imparteducation. The conditions are reasonable and cannot be said tobe taking away any of the constitutional rights of minorityinstitutions, they are reasonable, fair and intended to bringtransparency in the professional education imparted byinstitutions. They are applicable for all institutions alike minoritiesare not placed on disadvantageous platform. There is no doubtas to the concept of limited Government and least interferenceis welcomed, but in which field and to what extent balancing withthe larger public and national interest is required. The individualautonomy, rights, and obligations are to be free from officialinterference except where the rational basis for intrusion exists.

The Constitution provides limitation on the power of the Stateto interfere with life, liberty, and rights, however, the concept oflimited government cannot be extended to level when it defeatsthe very national interest. The maladies with which professionaleducation suffers in this country are writ large. The regulatoryframework created by the MCI/ DCI is concomitant of conditions,affiliation and recognition, and providing central examination inthe form of NEET cannot be said to be violative of the rightsunder Articles 19(1)(g) and 30. The regulatory framework is notrestrictive, but caters to the effective enjoyment of the rightsconferred under the aforesaid provisions. The provisions qualifythe doctrine of proportionality considered in Modern DentalCollege and Research Centre. What has been held therein for State

Alevel examination holds good for NEET also. The prescription ofNEET is definitely in order to improve the medical education,co-related to the improvement of public health, thus, it is step-in furtherance of the duty of the State enshrined in the DirectivePrinciples of the State Policy contained in Article 47 of theConstitution of India. Similarly, Article 46 aims at promotion ofBeducational and economic interests of Scheduled Castes,Scheduled Tribes, and other weaker sections. By prescription ofone equivalence examination of NEET, the interest of their meritis also equally protected and its aims of preventing variousmalpractices, which crept into system and prevent economicCexploitation by selling seats with which maladythe professionalmedical education system suffered. Article 51A(j) deals with theduty to strive towards excellence in all spheres of individual andcollective activity so that the nation constantly rises to higherlevels of endeavour and achievement. For that purpose,recognition of merit is necessary, and one has to be given fullDopportunity in pursuit of his/her aim. The prescription of NEETis to provide equal opportunity and level launching platform toan individual to perform his duty as enshrined under Article 51A(j).Thus, there is no violation of the aforesaid provisions as arguedby appellants, rather action is in furtherance of the constitutionalEaims and directions to achieve intendment of Article 51A(j) andis in the national interest. [Paras 46-48][618-C-G; 619-A-E]

1.4 In view of the law laid down in T.M.A. Pai Foundation, itis apparent that NEET/common entrance test is devise tostandardise and computing equivalence between different kindsFof qualifications. It does not interfere with the rights of the unaidedminority institutions as it has been imposed in national interestconsidering the malpractices of granting illegal admission byvirtually selling the seats in derogation to rights of meritoriousstudents. The charitable activity of education became saleablecommodity and prerogative of wealthy persons and poor studentsGwere forced to get education funded from Banks making it difficultfor them to come out of tentacular octave of interest. They areexploited in bud before they bloom into flower. The ill-reputationdeveloped by MCI forced to change its entire structure. Thenational interest requires further improvement in the system toH

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATIONv. UNION OF INDIA AND OTHERS

eradicate evils from the system. The situation is still grim andrequire to be dealt with firm hand and steely determination. Thus,it is apparent that the provisions in question which have beenincorporated in the Act relating to Medical/Dental education, theGovernment, MCI and DCI cannot be said to be an invasion ofthe fundamental rights. The intendment is to ensure fairness inthe selection, recognition of merit, and the interests of thestudents. In the national interest, educational institutions arebasically for charitable purpose. By and large, at presenteducation is devoid of its real character of charity, it has becomea commodity. To weed out evils from the system, which wereeating away fairness in admission process, defeating merit andaspiration of the common incumbent with no means, the Statehas the right to frame regulatory regime for aided/ unaidedminority/ private institutions as mandated by DirectivesPrinciples, Articles 14 and 21 of the Constitution. The first stephas been taken to weed out the evils from the system, and itwould not be in the national interest to step back considering theoverall scenario. If the old system is reverted to, posterity is notgoing to forgive us. Still, complaints are galore that merit is beingignored by private institutions; there is still flood of litigation.It seems that unfettered by large number of regulatorymeasures, unscrupulous methods and malpractices are yet beingadopted. Building the nation is the main aspect of education, whichcould not be ignored and overlooked. They have to cater tonational interest first, then their interest, more so, when suchconditions can be prescribed for recognition, particularly in thematter of professional education. The learned counsel arguedthat it is open to some of the institutions to impose higherstandards of merit. Firstly, conditions of affiliation are bindingapart from that, it is found that when it comes to national standardsand the objects sought to be achieved by NEET, to conductindividual examinations by some institutions cannot be permitted.The system is not yet out of clutches of unscrupulous devicesand dubious means are adopted to defeat merit, the interest ofeducation would further suffer and very purpose of centralisedexamination would be defeated. It is not possible to prescribefurther examination over and above NEET that cannot be said tobe workable, no exemption can be granted from NEET,

CDEFGH

Aconsidering the objective with which it has been introduced. Theuniform Entrance Examination cannot be said to be unreasonableregulatory framework. Considering the terms and conditionsforaffiliation and recognition for professional medical and such otherprofessional courses are binding, and no relaxation can bepermitted in the conditions. [Paras 53, 55 and 57][621-C-E;BG-H; 622-A-D, F-H; 623-A]

1.5 Rights under Articles 19(1)(g)and 30 read with Articles25, 26 and 29(1) of the Constitution of India do not come in theway of securing transparency and recognition of merits in thematter of admissions. It is open to regulating the course of study,Cqualifications for ensuring educational standards. It is open toimposing reasonable restrictions in the national and publicinterest. The rights under Article 19(1)(g) are not absolute andare subject to reasonable restriction in the interest of the student’scommunity to promote merit, recognition of excellence, and toDcurb the malpractices. Uniform Entrance Test qualifies the testof proportionality and is reasonable. The same is intended tocheck several maladies which crept into medical education, toprevent capitation fee by admitting students which are lower inmerit and to prevent exploitation, profiteering, andcommercialisation of education. The institution has to be capableEvehicle of education. The minority institutions are equally boundto comply with the conditions imposed under the relevant Actsand Regulations to enjoy affiliation and recognition, which applyto all institutions.In case they have to impart education, they are

bound to comply with the conditions which are equally applicableFto all. The regulations are necessary, and they are not divisive ordisintegrative. Such regulatory measures enable institutions toadminister them efficiently. There is no right given tomaladminister the education derogatory to the national interest.The quality of medical education is imperative to sub-serve thenational interest, and the merit cannot be compromised. TheGGovernment has the right for providing regulatory measures thatare in the national interest, more so in view of Article 19(6) ofthe Constitution of India. The rights of the religious or linguisticminorities under Article 30 are not in conflict with other parts ofthe Constitution. Balancing the rights is constitutional intendmentHin the national and more enormous public interest. Regulatory

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATIONv. UNION OF INDIA AND OTHERS

measures cannot be said to be exceedingthe concept of limitedgovernance. The regulatory measures in question are for theimprovement of the public health and is step, in furtherance ofthe directive principles enshrined in Articles47 and 51(A)(j) andenable the individual by providing full opportunity in pursuanceof his objective to excel in his pursuit. The rights to administeran institution under Article 30 of the Constitution are not abovethe law and other Constitutional provisions. Reasonableregulatory measures can be provided without violating such rightsavailable under Article 30 of the Constitution to administer aninstitution. Professional educational institutions constitute classby themselves. Specific measures to make the administration ofsuch institutions transparent can be imposed. The rights availableunder Article 30 are not violated by provisions carved out inSection 10D of the MCI Act and the Dentists Act and Regulationsframed by MCI/DCI.The regulatory measures are intended forthe proper functioning of institutions and to ensure that thestandard of education is maintained and does not fall low underthe guise of an exclusive right of management to the extent ofmaladministration. The regulatory measures by prescribingNEET is to bring the education within the realm of charity whichcharacter it has lost. It intends to weed out evils from the systemand various malpractices which decayed the system. Theregulatory measures in no way interfere with the rights toadminister the institution by the religious or linguistic minorities.Resultantly, there is no violation of the rights of the unaided/aided minority to administer institutions under Articles19 (1)(g)and 30 read with Articles 25, 26 and 29(1) of the Constitution ofIndia by prescribing the uniform examination of NEET foradmissions in the graduate and postgraduate professional coursesof medical as well as dental science. The provisions of the Actand regulation cannot be said to be ultra vires or taking away therights guaranteed under the Constitution of India under Article30(1) read with Articles 19(1)(g), 14, 25, 26 and 29(1).[Paras 58-60][623-B-H; 624-A-F]

Ahmedabad St. Xavier’s College Society and Anr. v. Stateof Gujarat and Anr.(1974) 1 SCC 717 : [1975] 1 SCR173; St. Stephen’s College v. University of Delhi (1992)1 SCC 558 : [1991] 3 Suppl. SCR 121 – followed.

CDEF

[2020] 5 S.C.R.

Frank Anthony Public School Employees’ Associationv. Union of India and Others(1986) 4 SCC 707 : [1987]1 SCR 238; Bihar State Madarasa Education Board,Patna v. Madarasa Hanfia Arabic College, Jamalia andOthers(1990) 1 SCC 428 :[1989] 2 Suppl. SCR 399;Brahmo Samaj Education Society v. State of WestBengal(2004) 6 SCC 224 : [2004] 2 Suppl. SCR 214;SindhiEducation Society and Anr. v. Chief Secretary,Government of NCT of Delhi and Ors.(2010) 8 SCC49 : [2010] 8 SCR 81; Secretary, Malankara SyrianCatholic College v. T. Jose andOrs.(2007) 1 SCC 386: [2006] 9 Suppl. SCR 644 – relied on.

Sankalp Charitable Trust and Anr. v. Union of Indiaand Ors. (2016) 7 SCC 487;Gobind v. State of MadhyaPradesh and Anr.(1975) 2 SCC 148 : [1975] 3 SCR946; K.S. Puttaswamy v. Union of India (2017) 10 SCC1: [2017] 10 SCR 569; Islamic Academy of Educationand Ors. v. State of Karnataka and Ors. (2003) 6SCC697 : [2003] 2 Suppl. SCR 474; Christian MedicalCollege Vellore v. Union ofIndia(2014) 2 SCC 305 :[2013] 7 SCR 908;State of Madhya Pradesh v.Jainarayan Chouksey and Ors.(2016) 9 SCC 412;Stateof Maharashtra v. D.Y. Patil Vidyapeeth and Ors.(2016)9 SCC 401;Dar-us-Salam Educational Trust and Ors.v. Medical Council of India and Ors. (2017) 6 SCALE320;Yatin kumar Jasubhai Patel and Ors. v. State ofGujarat and Ors.(2019) 10 SCC 1 : [2019] 12SCR848; Re The Kerala Education Bill1957 AIR 1958 SC956 : [1959] SCR 995; Rev. Sidhajbhai Sabhai andOrs. v. State of Bombay and Anr. [1963] 3 SCR 837;Rev. Father W. Proost and Ors. v. State of Bihar andOrs. AIR 1969 SC 465 : [1969] 2 SCR 73; The GandhiFaiz-e-am College, Shahjahanpur v. University ofAgraand Anr.(1975) 2 SCC 283 : [1975] 3 SCR 810;Sk.Md. Rafique v. Managing Committee, Contai RahamaniaHigh Madrasah and Ors.(2020) 1 SCALE 345;Chandana Das (Malakar) v. State of West Bengal andOrs.(2015) 12 SCC 140 :[2014] 13 SCR 796;FacultyAssociation of All India Institute of Medical Sciencesv.

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATIONv. UNION OF INDIA AND OTHERS

Union of India and Ors.(2013) 11 SCC 246 : [2014]14 SCR 1634;Dr. PreetiSrivastava and Anr. v. State ofM.P. and Ors.(1999) 7 SCC 120 : [1999] 1 Suppl. SCR249 – referred to.

Case Law Reference

[2020] 5 S.C.R.

From the Judgment and Order dated 10.10.2012 of this Hon'bleCourt passed in Transfer Petition (Civil) No. 365 of 2012.C

With

Transferred Case (Civil) Nos. 102, 99, 104, 105, 107, 108, 119,120, 125-127, 110, 111, 112, 113-114, 115-116, 117-118, 123-124, 128-130, 131, 132-134, 138-139, 142, 144, 145 of 2012, 5, 2, 3, 4, 7, 1, 8, 9, 10,D11, 12-13, 16, 14-15, 23-24, 19, 20, 21-22, 17, 18, 25, 28-29, 48, 49, 39, 40,42, 41, 43, 44, 46, 45, 47, 37-38, 30, 31-32, 33-36, 59, 60, 61, 62, 63-65,66-69, 70-71, 72, 73, 75, 76, 108 of 2013, 25 of 2019, Writ Petition. (Civil)Nos. 443, 750 of 2016, Special Leave Petition.(C) No. 28223 of 2016.

Vikas Singh, R. Venkataramani, Jayanth Muthraj, Sr. Advs., GauravESharma, Dhawal Mohan, Prateek Bhatia, Ms. Deepeika Kalia, V.G.Pragasam, Prabu Ramasubramanian, S. Manuraj, Yashraj Singh Bundela,Praveen Vignesh, M. Yogesh Kanna, S Raja Rajeshwaran, KarthikRajendran, Ms. Uma Prasuna Bachu, Rohit Rathi, Ms. Sheena Taqui,Ms. Bina Gupta, Kshitij Vaibhav, K.S.T. Thambi Pillai, Hitesh KumarSharma, Akhileshwar Jha, Ms. Miria Jasmin, Samrat Shinde, Sachin Patil,FAnil Kumar Mishra, Idrish Mohammed, Supantha Sinha, A.K. Mishra,G.N. Reddy, T. Vijaya Bhaskar Reddy, A.P. Mayee, A. Rajarajan, RupeshKumar, Mrs. Pankhuri Shrivastava, Rajeev Sharma, Ms. Neelam Sharma,V.N. Raghupathy, Manendra Pal Gupta, Md. Apzal Ansari, Amol Chitale,Ms. Pragya Baghel, P.V. Dinesh, Ms. Sindhu T.P., Bineesh K., MukundGP. Unny, Ashwini Kumar Singh, M/s. India Law, Mahesh Thakur,Ms. Sheffali Chaudhary, Mrs. Vipasha Singh, Dr. Sushil Balwada,Ramesh Allanki, Syed Ahmad Naqvi, Ms. Savita Devi, N.V.R.S.S.S.Vara Prasad, Ms. Aruna Gupta, Ganni Krishna, R. Radha Krishna,Ms. Shilp Gupta, C.S.N. Mohan Rao, Anil Kumar Mishra-I, Shivaji M.Jadhav, Ashwarya Sinha, Ravindra Keshavrao Adsure, Mrs. Bina Gupta,H

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATIONv. UNION OF INDIA AND OTHERS

Dharmendra Kumar Sinha, Ramesh Babu M.R., Rakesh K. Sharma,Dushyant Parashar, Lakshmi Raman Singh, Ms. Udita Singh, Vivek Singh,A. Venayagam Balan, Alok Shukla, M/s. Arputham Aruna and Co., E.R.Kumar, Krishna Srinivasan, Ms. Geeti Aara, Udayaditya Banerjee,Sudipto Sircar, Bhav Ratab, Ms. Tanya Chaudhry, Raghav Bansal,Ms. Nitika Pandey, M/s. Parekh & Co., Ambhoj Kumar Sinha, AmitAnand Tiwari, Ms. Shakun Sharma, K.K. Singh, Ms. Mary Mitzy, Ms.E.R. Sumathy, M/s. Lawyer’s Knit & Co., K.K. Mani, RameshwarPrasad Goyal, Y. Raja Gopala Rao, Vipin Kumar Jai, Ms. Binu Tamta,Ms. Rekha Pandey, Gurmeet Singh Makker, Ms. Suruchii Aggarwal,M.Y. Deshmukh, Amit Kumar, Ms.Sushma Suri, T.C. Sharma, PrashantBhushan, Mrs. Vaijayanthi Girish, Ms. Pragati Neekhra, NishantRamakantrao Katneshwarkar, K.V. Vijayakumar, B. Balaji, Gopal Singh,Kaushik Poddar, R. Chandrachud, Ms. Hemantika Wahi, Ms. AsthaTyagi, Ms. Farah Fathima, Advs. for the appearing parties.

The Judgment of the Court was delivered by

ARUN MISHRA, J.

1.Most of the cases have chequered history. Initially, petitionershave questioned four notifications - two notifications dated 21.12.2010issued by Medical Council of India (for short, ‘the MCI’) and other twonotifications dated 31.5.2012, issued by Dental Council of India (for short,‘the DCI’). The MCI by virtue of Regulations on Graduate MedicalEducation (Amendment) 2010, (Part II) notified by the Government ofIndia, amended theRegulationson Graduate Medical Education,1997.Similarly, the other notification issued by MCIcalled “Post-GraduateMedical Education (Amendment) Regulation, 2010 (Part-II)” to amendthe Post Graduate Medical Education Regulations, 2000. The regulationscame into force on their publication in the Official Gazette. The othertwo notifications dated 31.5.2012 issued by DCI were relating to admissionin the BDS and MDS courses.

2.The MCI issued notifications in exercise of power conferredby Section 33 of the Indian Medical Council Act, 1956 (for short, ‘theAct of 1956’). The amendments were made in the Regulation on GraduateMedical Education, 1997. The change was made in Clause 5 in ChapterII of the Regulations. Clause 5 provided for procedure for selectionthus:

“6. In Chapter II, Clause 5 under the heading “Procedure forselection to MBBS Course shall be as follows” shall be substitutedas under:

(i) There shall be single eligibility-cum-entrance examination,namely, ‘National Eligibility-cum-EntranceTest for admission toMBBS course’ in each academic year. The overallsuperintendence, direction, and control of the National Eligibility-cum-Entrance Test shall vest with the Medical Council of India.However, the Medical Council of India, with the previous approvalof the Central Government, shall select organisation(s) to conduct‘National Eligibility-cum-Entrance Test for admission to MBBScourse.

(ii) In order to be eligible for admission to MBBS course for aparticular academic year, it shall be necessary for candidate toobtain minimum of 50% (fifty percent) marks in each paper ofNational Eligibility-cum-Entrance Test held for the said academicyear. However, in respect of candidates belonging to the ScheduledCastes, the Scheduled Tribes, and the Other Backward Classes,the minimum percentage shall be 40% (forty percent) in eachpaper, and in respect of candidates with locomotory disability oflower limbs, the minimum percentage marks shall be 45% (forty-five percent) in each paper of National Eligibility-cum-EntranceTest:

Provided when sufficient number of candidates belonging torespective categories fail to secure minimum marks as prescribedin National Eligibility-cum-Entrance Test in any academic yearfor admission to MBBS course, the Central Government inconsultation with the Medical Council of India may at its discretionlower the minimum marks required for admission to MBBS coursefor candidates belonging to respective categories and marks solowered by the Central Government shall be applicable for thesaid year only.

(iii) The reservation of seats in medical colleges for respectivecategories shall be as per applicable laws prevailing in States/Union Territories. An all India merit list as well as State-wisemerit list of the eligible candidates shall be prepared on the basisof the marks obtained in National Eligibility-cum-Entrance Test

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATIONv. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

and candidates shall be admitted to MBBS course from the saidlists only.

(iv) No candidate who has failed to obtain the minimum eligibilitymarks as prescribed in sub-clause (ii) above shall be admitted toMBBS course in the said academic year.

(v) All admissions to MBBS course within the respective categoriesshall be based solely on marks obtained in the National Eligibility-cum-Entrance Test.”

(emphasis supplied)

3.Similarly, amendments to the Post Graduate Medical EducationRegulations, 2000 were made. The relevant portion of the amendmentsmade are extracted hereunder:

“No. MCI. 18(1)/2010-Med./49070. — In exercise of the powersconferred by Section 33 of the Indian Medical Council Act, 1956(102 of 1956), the Medical Council of India with the previousapproval of the Central Government hereby makes the followingregulations to further amend the ‘Postgraduate Medical EducationRegulations, 2000’, namely:

1. (i). These Regulations may be called ‘the Postgraduate MedicalEducation (Amendment) Regulations, 2010 (Part II)’.

(ii) They shall come into force from the date of their publicationin the Official Gazette.

2. In the ‘Postgraduate Medical Education Regulations, 2000’,the following additions/ modifications/ deletions/ substitutions, shallbe as indicated therein:

3. Clause 9 under the heading ‘SELECTION OFPOSTGRADUATE STUDENTS’ shall be substituted as under:

“9. Procedure for selection of candidate for Postgraduatecourses shall be as follows:

(i) There shall be single eligibility-cum-entrance examination,namely, National Eligibility-cum-Entrance Test for admissionto Postgraduate Medical Courses in each academic year. Theoverall superintendence, direction and control of NationalEligibility-cum-Entrance Test shall vest with Medical Council

530SUPREME COURT REPORTS

of India. However, the Medical Council of India, with theprevious approval of the Central Government shall selectorganisation(s) to conduct National Eligibility-cum-EntranceTest for admission to Postgraduate courses”’.”

4.Similar notifications were issued by DCI providing for procedureBfor selection of candidates for MBBS Course and Post-graduate Courseand also for BDS and MDS.Thus, National Eligibility-cum-Entrance Test(for short, ‘the NEET’) for admission to the MBBS course and thePost-graduate course and similarly for BDS and MDS came to beintroduced. Now the statutory provisions underSection 10D of the Actof 1956 providing for uniform entrance examination for undergraduateCand post-graduate level which came into force on 24.5.2016. Section10D is extracted hereunder:

“10D.Uniform entrance examination for undergraduate andpost-graduate level.—There shall be conducted uniformentrance examination to all medical educational institutions at theDundergraduate level and post-graduate level through suchdesignated authority in Hindi, English and such other languagesand in such manner as may be prescribed and the designatedauthority shall ensure the conduct of uniform entrance examinationin the aforesaid manner:

Provided that notwithstanding any judgment or order of anycourt, the provisions of this section shall not apply, in relation tothe uniform entrance examination at the undergraduate level forthe academic year 2016-17 conducted in accordance with anyregulations made under this Act, in respect of the StateFGovernment seats (whether in Government Medical College or ina private Medical College) where such State has not opted forsuch examination.”

(emphasis supplied)

Section 10D of the Dentists Act, 1948,containing similar provisionsGwith respect of uniform entrance examination hasalso been inserted,same is extracted hereunder:

“10D. Uniform entrance examination for undergraduate andpost-graduate level.—There shall be conducted uniformentrance examination to all dental educational institutions at theHundergraduate level and post-graduate level through such

designated authority in Hindi, English and such other languagesand in such manner as may be prescribed and the designatedauthority shall ensure the conduct of uniform entrance examinationin the aforesaid manner:

Provided that notwithstanding any judgment or order of anycourt, the provisions of this section shall not apply, in relation tothe uniform entrance examination at the undergraduate level forthe academic year 2016-17 conducted in accordance with anyregulations made under this Act, in respect of the StateGovernment seats (whether in Government Dental College or ina private Dental College) where such State has not opted forsuch examination.”

5.The Regulations on Graduate Medical Education, 1997 havealso been amended by Regulations on Graduate Medical Education(Amendment) 2017. The admission to the medical course eligibility criteriahas been prescribed by amended Clause 4. Following has been substituted:

“3. In Clause 4, under the heading Admission to the MedicalCourse-eligibility criteria, and in sub-clause 4 (1) & (1A), thefollowing shall be substituted:

4. Admission to the Medical Course-Eligibility Criteria: Nocandidate shall be allowed to be admitted to the Medical Curriculumproper of first Bachelor of Medicine and Bachelor of Surgerycourse until he /she has qualified the NationalEligibility EntranceTest, and he/she shall not be allowed to appear for the NationalEligibility-Cum-Entrance Test until:

(1) He/she shall complete the age of 17 years on or before31[st]December of the year of admission to the MBBS.

(1A) He/She has obtained minimum of marks in NationalEligibility-Cum-Entrance Test as prescribed in Clause 5 of ChapterII.”

(emphasis supplied)

In Chapter II, Clause 5 under the heading “Procedure forselection to MBBS” has been substituted by MCI in 2017 as under:

“7. In Chapter-II, Clause 5 under the heading “Procedure forselection to MBBS course shall be as follows” shall be substitutedas under:-

“Procedure for selection to MBBS course shall be asfollows:”

(1) There shall be uniform entrance examination to all medicaleducational institutions at the undergraduate level namely ‘NationalEligibility-cum-EntranceTest for admission to MBBS course ineach academic year and shall be conducted under overallsupervision of the Ministry of Health & Family Welfare,Government of India.

(2) The “designated authority” to conduct the ‘National Eligibility-Cum- Entrance Test’ shall be the Central Board of SecondaryEducation or any other body/organization so designated by theMinistry of Health & Family Welfare, Government of India, inconsultation with the Medical Council of India.

(3) The language and manner of conducting the ‘NationalEligibility-Cum-Entrance Test’ shall be determined by the“designated authority” in consultation with the Medical Councilof India and the Ministry of Health and Family Welfare,Government of India.

(4) In order to be eligible for admission to MBBS Course for aacademic year, it shall be necessary for candidate to obtainminimum of marks at 50[th]percentile in ‘National Eligibility-cum-Entrance Test to MBBS course’ held for the said academic year.However, in respect of candidates belonging to Scheduled Castes,Scheduled Tribes, Other Backward Classes, the minimum marksshall be at 40[th]percentile. In respect of candidates with benchmarkdisabilities specified under the Rights of Persons with DisabilitiesAct, 2016, in terms of Clause 4(3) above, the minimum marksshall be at 45th percentile for General Category candidates and40th percentile for SC/ST/OBC candidates. The percentile shallbe determined on the basis of highest marks secured in the All-India common merit list for admission in ‘National Eligibility-cum-Entrance Test for admission to MBBS course.

Provided when sufficient number of candidates in the respectivecategories fail to secure minimum marks as prescribed in NationalEligibility-cum-Entrance Test held for any academic year foradmission to MBBS Course, the Central Government inconsultation with Medical Council of India may at its discretion

lower the minimum marks required for admission to MBBS Coursefor candidates belonging to respective categories and marks solowered by the Central Government shall be applicable for thesaid academic year only.

(5) The reservation of seats in Medical Colleges for respectivecategories shall be as per applicable laws prevailing in States/Union Territories. An All India merit list as well as State/UnionTerritory-wise merit list of the eligible candidates shall be preparedon the basis of marks obtained in ‘National Eligibility-cum-EntranceTest and candidates shall be admitted to MBBS course from thesaid lists only.

(6) No candidate who has failed to obtain the minimum eligibilitymarks as prescribed in Sub-clause (4) above shall be admitted toMBBS course in the said academic year.

(7) No authority/institution shall admit any candidate to the MBBScourse in contravention of the criteria/procedure as laid down bythese Regulations and/or in violation of the judgments passed bythe Hon’ble Supreme Court in respect of admissions. Any candidateadmitted in contravention/violation of aforesaid shall be dischargedby the Council forthwith. The authority/institution which grantsadmission to any student in contravention /violation of theRegulations and/or the judgments passed by the Hon’ble SupremeCourt, shall also be liable to face such action as may be prescribedby the Council, including surrender of seats equivalent to the extentof such admission made from its sanctioned intake capacity forthe succeeding academic year/years.

(8) All admission to MBBS course within the respective categoriesshall be based solely on the marks obtained in the ‘NationalEligibility-Cum-Entrance Test.”

(emphasis supplied)

6. Initially, the matters filed in 2012-2013 were heard by Benchof three Judges, and the matters were decided vide judgment and orderdated 18.7.2013. As per the majority opinion,the petitions were allowed.The notifications issued by MCI and DCI providing for NEET werequashed. However, the admissions, which were made, were not interferedwith. Review petitions were filed, which were entertained and wereultimately allowed on 11.4.2016, and judgment dated 18.7.2013 wasrecalled.

A7. In Writ Petition (C) No.443 of 2016, prayer has been made toprotect the rights of the petitioner-institutions guaranteed under Articles14, 15, 25, 26 and 30 of the Constitution of India.In Writ Petition (C)No.750 of 2016, prayer is made to direct the respondents to conductcentralized counselling for admission to all Graduate Medical and DentalCourses throughout the country. In Transferred Case (C) No.25 of 2019,Bit is stated that vires of the provisions of Maharasthra Unaided PrivateProfessional Educational Institution (Regulation of Admissions & Fees)Act, 2015, applying them to Unaided Private MinorityProfessionalEducational Institutions are bad in law. In S.L.P. (C) No.28223 of 2016,provisions have been questioned on the ground that they cannot takeCaway the rights guaranteed under Articles 19(1)(g) and 30 read withArticles 25, 26 and 29(1) of the Constitution of India.

8.Initially, the questionswere raised that MCI and DCI could nothave introduced NEET as the same offends the fundamental rightsguaranteed under Article19(1)(g) of the Constitution of India and theDrights of religious and linguistic minorities to establish and administereducational institutions of their choice as guaranteed under Article 30Constitution of India. Thus, subordinate legislation couldnot haveoverriding effect over the fundamental rights guaranteed under Articles25, 26, 29(1), and 30 of the Constitution of India. Now the amendmentmade could not take away or abridge the aforesaid rights of minorities.EThe right to admit students is one of the fundamental rights, thus, rider ofclearing NEET examination could not have been imposed.9. It was urged on behalf of petitioners that the impugnednotifications violate the fundamental rights of an unaided minorityinstitution to “establish and administer educational institutions of theirFchoice” protected under Article 30 read with Articles 25 and 26 of theConstitution of India, which includes the right to admit students of theirown choice. The doctrine of limited Government provides that citizen’sliberty and autonomy is the central notion of the Constitution of Indiaand there is an inherent limitation on the State’s involvement in mattersGof admissions of students. The NEET prescribes no alternative to theinstitution, impinges upon the fundamental rights of an unaided minorityinstitution to establish and administer educational institution of their choice.

10. It was furtherurged on behalf of petitioners that State has nopower to compel an unaided minority institution to admit students throughHa single centralized national examination such as NEET. The unaided

minority professional colleges have the fundamental rights to choose themethod and manner in which to admit its students, subject to satisfyingthe triple test of having fair, transparent, and non-exploitative process.

11. It was also argued on behalf of petitioners that they have atime-tested admission procedure without any complaints. Their processis fair and transparent, and they have fundamental right to protectautonomy and reputation by continuing to admit students using theiradmission process. The NEET cannot be the only parameter to determinethe merit of student. Some of the institutions are providing best medicalprofessional by having their procedure for admission. They havefundamental rights under Articles 19(1)(g) and 30(1) of the Constitutionto conduct and manage the affairs of the institution. The State, whileimposing reasonable restrictions, can fix the threshold criterion of merit,but cannot restrict the petitioners from having any additional criteria ofmerit over and above the threshold fixed by the State. The restrictionviolates the test of proportionality.

12. The petitioners have also referred to the existingpositionconcerning centralised examination for professional courses inIndia and internationally,to hold entrance examination cannot becompulsion, it has to be voluntarily. They have relied upon CommonLaw Admission Test (CLAT) - system of examination for admission inthe Law Colleges. Reference has also been made to the admissionprocess followed in Indian Institute of Technology (IITs), NationalInstitute of Technology (NITs) and Indian Institute of Management(IIMs). NEET is the first of its kind, both in India and globally, where allinstitutions are compelled by the State to follow single admissionprocedure. Some of the institutions are having an excellent record. Theyfollow the gurukul tradition. With the introduction of NEET in 2016-17,institutions have been compelled to admit students through NEET insteadof their method. Some of them have the All India Entrance Test. Theyhave their unique procedure of admission for MBBS as well as PostGraduation. The system of examination of some of the institutions iswider on All India Basis, and they test general ability also, whereas, inNEET, evaluation is based on three subjects, namely, Physics, Biology,and Chemistry. They have an elaborate procedure of the assessment,and they do not admit students only based on their theoretical knowledge.Some of them are the best medical educational institutions in the country.There is not even single allegation of maladministration against some

Aof the reputed institutions. The principles, which govern the selection,are eligibility, suitability, and distributive justice. The selection of candidatesis an important factor to the medical colleges to suit their requirementsin particular field.

13. There are various issues which have arisen according to theBadmission given for post-graduate examination after the introduction ofNEET. Now, in some of the specialised institutions, they are not gettinggood doctors to take care of patients, for example, in the OncologyDepartment. Some of the candidates are not able to bear the burden ofthe procedure and have expressed their inability to go with very sickpatients. Some of them were not able to undertake procedures in sterileCmanner to avoid infections. Similar is the position in other super-specialitydepartments. There are complaints of lack of clinical competence amongstudents admitted to speciality courses like general medicine.

14.The petitioners further submitted that they have fundamentalright to admit students of their own choice under Article 30 of theDConstitution. It is submitted that the admission procedure adopted bythem passes the triple test, i.e., fair, transparent, and non-exploitative.Various orders were passed by this Court recognising fair method adoptedin individual institutions while admitting students through their admissionprocedure as apparent from interim orders passed in the years 1993,E1994, 1995, and 1998.

15.This Court on 28.4.2016 passed an order in SankalpCharitable Trust and Anr. v. Union of India and Ors., (Writ Petition(C) No.261 of 2016), in which it was clarified that order passed in thesaid matter shall not affect the hearing of the petitions. Most of petitionsFremained pending after recall of the order earlier passed by this Court.Asper appellants, the ratio laid down in Modern Dental College andResearch Centre and Ors. v. State of Madhya Pradesh and Ors.,(2016) 7 SCC 353, is not applicable. While deciding the said case, thisCourt did not deal with the rights of unaided minority institutions. DivisionBench of Madras High Court held that the procedure of admission ofGsome of the institutions is fair, transparent and non-exploitative. Reliancehas been placed on the T.M.A. Pai Foundation and Ors. v. State ofKarnataka and Ors., (2002) 8 SCC 481 to contend that State haveminimal interference and if possible, to be made only to maintain academicstandards. The right to admit students is one of the fundamental rightsHrecognized by this Court. The challenge in Modern Dental College

and Research Centre (supra) was to the State level examination, i.e.,the Common Entrance Test (CET). The holding of NEET would not bein the interest of the academic standard of premier medical institutionsin the country. The change in admission procedure of students wouldresult in sharp decline in the current standards of excellence in educationmaintained at the institution, that would not be in public interest. Theadmission procedure followed by petitioners is head and shoulders abovethe NEET. The concept of limited government has also been relied uponby referring to the decisions in Gobind v. State of Madhya Pradeshand Anr., (1975) 2 SCC 148 and K.S. Puttaswamy v. Union of India,(2017) 10 SCC 1. Reliance has also been placed on the Islamic Academyof Education and Ors. v. State of Karnataka and Ors., (2003) 6 SCC697 and P.A. Inamdar and Ors. v. State of Maharashtra and Ors.,(2005) 6 SCC 537.

16.It was argued that provisions of the MCI and DCI Acts andregulations which have been amended during the pendency of thepetitions cannot take away the right of the institutions to admit theirstudents under Article 30 of the Constitution of India. Thus, the prescriptionof NEET cannot be said to be permissible for the institutions in question.

17. On behalf of respondents, reliance has been placed on SankalpCharitable Trust and Anr. v. Union of India and Ors., (2016) 7 SCC487, Modern Dental College and Research Centre (supra) and P.A.Inamdar (supra). It was also argued that Section 10D has been insertedin the Act of 1956 it provides that there shall be uniform commonentrance conducted by the designated authority. The main reasoning ofthis Court in Christian Medical College Vellore v. Union of India,(2014) 2 SCC 305, which decision has been recalled, was that uniformcommon entrance examination could not be introduced by way ofsubordinate legislation and under the Act of 1956 and MCI had no powerto conduct the said examination. After the introduction of Section 10D,both the said lacunas have been plugged. The introduction of NEET isconstitutionally valid. In Modern Dental College and Research Centre(supra), the Court considered the question of conduct of examination byprivate medical colleges in the State of Madhya Pradesh for admittingstudents in their colleges. In State of Madhya Pradesh v.JainarayanChouksey and Ors., (2016) 9 SCC 412, while deciding thecontempt petition it was observed that judgment dated 2.5.2016 passedin the case of Modern Dental College and Research Centre

A(supra),held that admission should be made through centralisedprocedure to be conducted by the State Government. The Court again inthe State of Maharashtra v. D.Y. Patil Vidyapeeth and Ors., (2016) 9SCC 401, decided on 28.9.2016 reiterated that the decision in ModernDental College and Research Centre (supra) makes it unequivocallyclear that centralised counselling is an adjunct and part of the uniformBcommon entrance test. The notifications were also challenged by minorityinstitutions, deemed Universities, and other private institutions by filingwrit petitions in this Court. The Court in the judgment dated 9.5.2017 inDar-us-Salam Educational Trust and Ors. v. Medical Council ofIndia and Ors., (Writ Petition (C) No.267 of 2017), observed thatCcommon counselling did not in any manner affect the right of minorityinstitutions to admit students of their minority community. As such, theirright to admit students of their community was fully protected. Theinstitutions were entitled to fill students of minority quota in their respectivemedical colleges. NEET is qualifying examination to determine meritand also ensure fair procedure and equality of opportunity that mostDmeritorious candidates get admitted in the medicine and dental courses.Reliance has been placed on YatinkumarJasubhai Patel and Ors. v.State of Gujarat and Ors., (2019) 10 SCC 1, in which the Courtconsidered the question of institutional preference/reservation afterintroduction of NEET, and observed that introduction of NEET did notEaffect 50% State quota seats in PG medicine course. It may be filledbased on institutional reservation.

18.The primary issue is whether by providing centralisedexamination system – NEET for admission to MBBS, PG, BDS andMDS by virtue of the provisions made in the Act and regulations, thereFis violation of fundamental rights guaranteed under Articles 19(1)(g), 25,26, 29(1) and 30 of the Constitution of India.

19. We first advert to take note that various decisions renderedby this Court in respect of the right of minority as stated under Article 30of the Constitution of India.G20.

20.In ReTheKerala Education Bill, 1957, AIR 1958 SC 956,question arose concerning right of the Government to prescribequalification to be possessed by the incumbents for appointment asteachers in aided or recognized schools. The State Public ServiceCommission was empowered to select candidates for appointment asHteachers in Government and aided schools. The Court opined that minority

cannot ask for the aid or recognition for an educational institution withoutcompetent teachers and fair standards. The choice does not necessarilymilitate against the claim of the State to insist on reasonable regulationsto ensure the excellence of the institutions to be aided or even recognized.The Court held thus:

“(29) Their grievances are thus stated: The gist of the right ofadministration of school is the power of appointment, control,and dismissal of teachers and other staff. But under the said Billsuch power of management is practically taken away. Thus themanager must submit annual statements (Cl. 5). The fixed assetsof the aided schools are frozen and cannot be dealt with exceptwith the permission of the authorised officer (Cl. 6). No educationalagency of an aided school can appoint manager of its choiceand the manager is completely under the control of the authorisedofficer, for he must keep accounts in the manner he is told to doand to give periodical inspection of them and on the closure of theschool the accounts must be made over to the authorised officer(Cl. 7). All fees etc. collected will have to be made over to theGovernment (Cl. 8(3)). Government will take up the task of payingthe teachers and the non-teaching staff (Cl. 9). Government willprescribe the qualification of teachers (Cl. 10). The schoolauthorities cannot appoint single teacher of their choice, butmust appoint persons out of the panel settled by the Public ServiceCommission (Cl. 11). The school authorities must provide amenitiesto teachers and cannot dismiss, remove, reduce, or even suspenda teacher without the previous sanction of the authorised officer(Cl. 12). ……

(31) We are thus faced with problem of considerable complexityapparently difficult of solution. There is, on the one hand the minorityrights under Art. 30(1) to establish and administer educationalinstitutions of their choice and the duty of the Government topromote education, there is, on the other side the obligation of theState under Art. 45 to endeavour to introduce free and compulsoryeducation. We have to reconcile between these two conflictinginterests and to give effect to both if that is possible and bringabout synthesis between the two. The directive principles cannotignore or override the fundamental rights but must, as we havesaid, subserve the fundamental rights. We have already observed

that Art. 30(1) gives two rights to the minorities, (1) to establishand (2) to administer educational institutions of their choice. Theright to administer cannot obviously include the right tomaladminister.The minority cannot surely ask for aid or recognitionfor an educational institution run by them in unhealthy surroundings,without any competent teachers, possessing any semblance ofqualification, and which does not maintain even fair standard ofteaching or which teaches matters subversive of the welfare ofthe scholars. It stands to reason, then, that the constitutional rightto administer an educational institution of their choice does notnecessarily militate against the claim of the State to insist that inorder to grant aid the State may prescribe reasonable regulationsto ensure the excellence of the institutions to be aided. LearnedAttorney-General concedes that reasonable regulations maycertainly be imposed by the State as condition for aid or evenfor recognition......Clauses 6, 7, 9, 10, 11, 12, 14, 15, and 20 relateto the management of aided schools. Some of these provisions,e.g., 7, 10, 11(1), 12(1)(2)(3) and (5) may easily be regarded asreasonable regulations or conditions for the grant of aid. Clauses9, 11(2) and 12(4) are, however, objected to as going much beyondthe permissible limit. It is said that by taking over the collectionsof fees etc., and by undertaking to pay the salaries of the teachersand other staff the Government is in reality confiscating the schoolfund and taking away the prestige of the school, for none willcare for the school authority. Likewise Cl. 11 takes away anobvious item of management, for the manager cannot appoint anyteacher at all except out of the panel to be prepared by the PublicService Commission which, apart from the question of its powerof taking up such duties, may not be qualified at all to selectteachers who will be acceptable to religious denominations and inparticular sub-cl. (2) of that clause is objectionable for it thrustsupon educational institutions of religious minorities teachers ofScheduled Castes who may have no knowledge of the tenets oftheir religion and maybe otherwise weak educationally. Power ofdismissal, removal, reduction in rank, or suspension is an index ofthe right of management, and that is taken away by Cl. 12(4).These are, no doubt, serious inroads on the right of administrationand appear perilously near violating that right. But consideringthat those provisions are applicable to all educational institutionsand that the impugned parts of Cls. 9, 11 and 12 are designed togive protection and security to the illpaid teachers who are engagedin rendering service to the nation and protect the backward classes,we are prepared, as at present advised, to treat these clauses 9,11(2) and 12(4) as permissible regulations which the State mayimpose on the minorities as condition for granting aid to theireducational institutions. We, however, find it impossible to supportCls. 14 and 15 of the said Bill as mere Regulations. The provisionsof those clauses may be totally destructive of the rights underArt. 30(1). It is true that the right to aid is not implicit in Art. 30(1)but the provisions of those clauses, if submitted to on account oftheir factual compulsion as condition of aid, may easily be violativeof Art. 30(1) of the Constitution. Learned Counsel for the Stateof Kerala recognizes that Cls. 14 and 15 of the Bill may annihilatethe minority communities’ right to manage educational institutionsof their choice but submits that the validity of those clauses is notthe subjectmatter of question 2. But, as already explained, all newlyestablished schools seeking aid or recognition are, by Cl. 3(5),made subject to all the provisions of the Act. Therefore, in adiscussion as to the constitutional validity of Cl. 3(5) discussionof the validity of the other clauses of the Bill becomes relevant,not as and by way of separate item but in determining the validityof the provisions of Cl. 3(5). In our opinion, sub-cl. 3 of Cl. 8 andCls. 9, 10, 11, 12 and 13 being merely regulatory do not offendArt. 30(1), but the provisions of sub-cl. (5) of cl. 3 by making theaided educational institutions subject to Cls. 14 and 15 as conditionsfor the grant of aid do offend against Art. 30(1) of the Constitution.”

(emphasis supplied)

21.In Rev. SidhajbhaiSabhai and Ors. v. State of Bombayand Anr., (1963) 3 SCR 837, the Court again considered the matter andobserved that educational institutions cater to the needs of the citizensor section thereof. Regulation made in the real interests of efficiency ofinstruction, discipline, health, sanitation, morality, public order, and thelike may undoubtedly be imposed. Such regulations are not restrictiveon the substance of the right, which is guaranteed, they secure the properfunctioning of the institution in the matter of education. It was alsoobserved that regulation must satisfy dual test-the test of reasonablenessand that it is regulative of the educational character of the institution and

Ais conducive to making the institution capable vehicle of education forthe minority community or other persons who resort to it. In Rev. FatherW. Proost and Ors. v. State of Bihar and Ors., AIR 1969 SC 465, theCourt observed thus:

“8. In our opinion, the width of Article 30(1) cannot be cut downBby introducing in it considerations on which Article 29(1) is based.The latter article is general protection which is given to minoritiesto conserve their language, script, or culture. The former is aspecial right to minorities to establish educational institutions oftheir choice. This choice is not limited to institution seeking toconserve language, script, or culture, and the choice is not takenCaway if the minority community having established an educationalinstitution of its choice also admits members of other communities.That is circumstance irrelevant for the application of Article30(1) since no such limitation is expressed and none can be implied.The two articles create two separate rights, although it is possibleDthat they may meet in given case.”22.In Ahmedabad St. Xavier’s College Society and Anr. v.State of Gujarat and Anr., (1974) 1 SCC 717, college was run by theminority. Bench of 9-Judges of this Court considered the questionwhether Sections 40 and 41 of the Gujarat University Act, 1949 violatedESection 30, which provided all colleges within the University area wouldbe governed by the statutes of the University which may provide forminimum educational qualifications for teachers and tutorial staff. TheUniversity may approve the appointments of teachers to coordinate andregulate the facilities provided and expenditure incurred. The Courtopined that regulation which serves the interests of the teachers are ofFparamount importance in good administration,education should be greatcohesive force in developing integrity of the nation, thus:

“19. The entire controversy centres round the extent of the rightof the religious and linguistic minorities to administer theireducational institutions. The right to administer is said to consistGof four principal matters. First is the right to choose its managingor governing body. It is said that the founders of the minorityinstitution have faith and confidence in their own committee orbody consisting of persons elected by them. Second is the right tochoose its teachers. It is said that minority institutions want teachersto have compatibility with the ideals, aims, and aspirations of the

institution. Third is the right not to be compelled to refuse admissionto students. In other words, the minority institutions want to havethe right to admit students of their choice subject to reasonableregulations about academic qualifications. Fourth is the right touse its properties and assets for the benefit of its own institution.

20. The right conferred on the religious and linguistic minorities toadminister educational institutions of their choice is not an absoluteright. This right is not free from regulation. Just as regulatorymeasures are necessary for maintaining the educational characterand content of minority institutions, similarly, regulatory measuresare necessary for ensuring orderly, efficient, and soundadministration. Das, C.J., in the Kerala Education Billcase(supra) 1959 SCR 995: AIR 1958 SC 956, summed up in onesentence the true meaning of the right to administer by sayingthat the right to administer is not the right to mal-administer.

30. Educational institutions are temples of learning. The virtuesof human intelligence are mastered and harmonised by education.Where there is complete harmony between the teacher and thetaught, where the teacher imparts and the student receives, wherethere is complete dedication of the teacher and the taught inlearning, where there is discipline between the teacher and thetaught, where both are worshippers of learning, no discord orchallenge will arise. An educational institution runs smoothly whenthe teacher and the taught are engaged in the common ideal ofpursuit of knowledge. It is, therefore, manifest that the appointmentof teachers is an important part in educational institutions. Thequalifications and the character of the teachers are reallyimportant. The minority institutions have the right to administerinstitutions. This right implies the obligation and duty of the minorityinstitutions to render the very best to the students. In the right ofadministration, checks, and balances in the shape of regulatorymeasures are required to ensure the appointment of good teachersand their conditions of service. The right to administer is to betempered with regulatory measures to facilitate smoothadministration. The best administration will reveal no trace or colourof minority. minority institution should shine in exemplaryeclectism in the administration of the institution. The bestcompliment that can be paid to minority institution is that it doesnot rest on or proclaim its minority character.

31. Regulations which will serve the interests of the students,egulations which will serve the interests of the teachers are ofparamount importance in good administration. Regulations in theinterest of efficiency of teachers, discipline, and fairness inadministration are necessary for preserving harmony amongaffiliated institutions.

46. The ultimate goal of minority institution too imparting generalsecular education is advancement of learning. This Court hasconsistently held that it is not only permissible but also desirable toregulate everything in educational and academic matters forachieving excellence and uniformity in standards of education.

47. In the field of administration it is not reasonable to claim thatminority institutions will have complete autonomy. Checks on theadministration may be necessary in order to ensure that theadministration is efficient and sound and will serve the academicneeds of the institution. The right of minority to administer itseducational institution involves, as part of it, correlative duty ofgood administration.

90. We may now deal with the scope and ambit of the rightguaranteed by clause (1) of Article 30. The clause confers righton all minorities, whether they are based on religion or language,to establish and administer educational instructions of their choice.The right conferred by the clause is in absolute terms and is notsubject to restrictions, as in the case of rights conferred by Article19 of the Constitution. The right of the minorities to administereducational institutions does not, however, prevent the making ofreasonable regulations in respect of those institutions. Theregulations have necessarily to be made in the interest of theinstitution as minority educational institution. They have to be sodesigned as to make it an effective vehicle for imparting education.The right to administer educational institutions can plainly notinclude the right to maladminister. Regulations can be made toprevent the housing of an educational institution in unhealthysurroundings as also to prevent the setting up or continuation ofan educational institution without qualified teachers. The Statecan prescribe regulations to ensure the excellence of the institution.Prescription of standards for educational institutions does notmilitate against the right of the minority to administer the institutions.

Regulations made in the true interests of efficiency of instruction,discipline, health, sanitation, morality, public order, and the likemay undoubtedly be imposed. Such regulations are not restrictionson the substance of the right, which is guaranteed: they securethe proper functioning of the institution, in matters educational[see observations of Shah, J. in Rev. SidhajbhaiSabhai(supra),[(1963 3 SCR 837]p. 850]. Further, as observed by Hidyatullah,C.J. in the case of Very Rev. Mother Provincial (supra) [(1971)1 SCR 734], the standards concern the body politic and are dictatedby considerations of the advancement of the country and its people.Therefore, if universities establish syllabi for examinations, theymust be followed, subject, however, to special subjects which theinstitutions may seek to teach, and to certain extent, the Statemay also regulate the conditions of employment of teachers andthe health and hygiene of students. Such regulations do not beardirectly upon management as such, although they may indirectlyaffect it. Yet the right of the State to regulate education, educationalstandards, and allied matters cannot be denied. The minorityinstitutions cannot be allowed to fall below the standards ofexcellence expected of educational institutions, or under the guiseof exclusive right of management, to decline to follow the generalpattern. While the management must be left to them, they may becompelled to keep in step with others.92. regulation which is designed to prevent maladministrationof an educational institution cannot be said to offend Clause (1) ofArticle 30. At the same time, it has to be ensured that under thepower of making regulations, nothing is done as would detractfrom the character of the institution as minority educationalinstitution or which would impinge upon the rights of the minoritiesto establish and administer educational institutions of their choice.The right conferred by Article 30(1) is intended to be real andeffective and not mere pious and abstract sentiment; it is apromise of reality and not teasing illusion. Such right cannotbe allowed to be whittled down by any measure masquerading asa regulation. As observed by this Court in the case of Rev.SidhajbhaiSabhai (supra) [(1963 3 SCR 837], regulations whichmay lawfully be imposed either by legislative or executive actionas condition of receiving grant or of recognition must be directedto making the institution while retaining its character as minority

institution effective as an educational institution. Such regulationmust satisfy dual test — the test of reasonableness, and the testthat it is regulative of the educational character of the institutionand is conducive to making the institution an effective vehicle ofeducation for the minority community or other persons who resortto it.

94. If request is made for the affiliation or recognition of aneducational institution, it is implicit in the request that the educationalinstitution would abide by the regulations which are made by theauthority granting affiliation or recognition. The said authority canalways prescribe regulations and insist that they should be compliedwith before it would grant affiliation or recognition to an educationalinstitution. To deny the power of making regulations to the authorityconcerned would result in robbing the concept of affiliation orrecognition of its real essence. No institution can claim affiliationor recognition until it conforms to certain standard. The factthat the institution is of the prescribed standard indeed inheres inthe very concept of affiliation or recognition. It is, therefore,permissible for the authority concerned to prescribe regulationswhich must be complied with before an institution can seek andretain affiliation and recognition. Question then arises whetherthere is any limitation on the prescription of regulations for minorityeducational institutions. So far as this aspect is concerned, theauthority prescribing the regulations must bear in mind that theConstitution has guaranteed fundamental right to the minoritiesfor establishing and administering their educational institutions.Regulations made by the authority concerned should not impingeupon that right. Balance has, therefore, to be kept between thetwo objectives, that of ensuring the standard of excellence of theinstitution and that of preserving the right of the minorities toestablish and administer their educational institutions. Regulationswhich embrace and reconcile the two objectives can be consideredto be reasonable.”

(emphasis supplied)

The Court held that it is permissible for the State to prescribequalifications for teachers. It observed:

“176. Recognition or affiliation is granted on the basis of theHexcellence of an educational institution, namely, that it has reached

the educational standard set up by the university. Recognition oraffiliation is sought for the purpose of enabling the students in aneducational institution to sit for an examination to be conductedby the university and to obtain degree conferred by theuniversity.For that purpose, the students should have to be coachedin such manner so as to attain the standard of educationprescribed by the university. Recognition or affiliation creates aninterest in the university to ensure that the educational institutionis maintained for the purpose intended and any regulation whichwill subserve or advance that purpose will be reasonable and noeducational institution established and administered by religiousor linguistic minority can claim recognition or affiliation withoutsubmitting to those regulations. That is the price of recognition oraffiliation: but this does not mean that it should submit to regulationstipulating for surrender of right or freedom guaranteed by theConstitution, which is unrelated to the purpose of recognition oraffiliation. In other words, recognition or affiliation is facilitywhich the university grants to an educational institution, for thepurpose of enabling the students there to sit for an examination tobe conducted by the university in the prescribed subjects and toobtain the degree conferred by the university, and therefore, itstands to reason to hold that no regulation which is unrelated tothe purpose can be imposed. If besides recognition or affiliation,an educational institution conducted by religious minority isgranted aid, further regulations for ensuring that the aid is utilizedfor the purpose for which it is granted will be permissible. Theheart of the matter is that no educational institution established bya religious or linguistic minority can claim total immunity fromregulations by the legislature or the university if it wants affiliationor recognition, but the character of the permissible regulationsmust depend upon their purpose. As we said, such regulations willbe permissible if they are relevant to the purpose of securing orpromoting the object of recognition or affiliation. There will beborderline cases where it is difficult to decide whether regulationreally subserves the purpose of recognition or affiliation. But thatdoes not affect the question of principle. In every case, when thereasonableness of regulation comes up for consideration beforethe Court, the question to be asked and answered is whether theregulation is calculated to subserve or will in effect subserve the

DEF

purpose of recognition or affiliation, namely, the excellence of theinstitution as vehicle for general secular education to the minoritycommunity and to other persons who resort to it. The questionwhether regulation is in the general interest of the public has norelevance if it does not advance the excellence of the institutionas vehicle for general secular education as, ex-hypothesi, theonly permissible regulations are those which secure theeffectiveness of the purpose of the facility, namely, the excellenceof the educational institutions in respect of their educationalstandards. This is the reason why this Court has time and againsaid that the question whether particular regulation is calculatedto advance the general public interest is of no consequence if it isnot conducive to the interests of the minority community and thosepersons who resort to it.197. On the second question, I have nothing significant to add towhat has fallen from My Lord the Chief Justice. I am in entireagreement with the view that, although, Articles 29 and 30 maysupplement each other so far as certain rights of minorities areconcerned, yet, Article 29 of the Constitution does not, in anyway, impose limit on the kind or character of education which aminority may choose to impart through its Institution to the childrenof its own members or to those of others who may choose to sendtheir children to its schools. In other words, it has right to imparta general secular education. I would, however, like to point outthat, as rights and duties are correlative, it follows, from the extentof this wider right of minority under Article 30(1) to impart evengeneral or non-denominational secular education to those whomay not follow its culture or subscribe to its beliefs, that, when aminority Institution decides to enter this wider educational sphereof national education, it, by reason of this free choice itself, couldbe deemed to opt to adhere to the needs of the general pattern ofsuch education in the country, at least whenever that choice ismade in accordance with statutory provisions. Its choice to impartan education intended to give secular orientation or character toits education necessarily entails its assent to the imperative needsof the choice made by the State about the kind of “secular”education which promotes national integration or the elevatingobjectives set out in the preamble to our Constitution, and the bestway of giving it. If it is part of minority’s rights to make such

choice, it should also be part of its obligations, which necessarilyfollow from the choice to adhere to the general pattern. The logicalbasis of such choice is that the particular minority Institution,which chooses to impart such general secular education, prefersthat higher range of freedom where, according to the poetRabindranath Tagore, “the narrow domestic walls” whichconstitute barriers between various sections of the nation willcrumble and fall. It may refuse to accept the choice made by theState of the kind of secular education the State wants or of theway in which it should be given. But, in that event, should it not beprepared to forego the benefits of recognition by the State? TheState is bound to permit and protect the choice of the minorityInstitution, whatever that might be. But, can it be compelled togive it treatment different from that given to other Institutionsmaking such choice?221. Evidently, what was meant was that the right to exclusivemanagement of the institution is separable from the right todetermine the character of education and its standards. This mayexplain why “standards” of education were spoken as “not partof management” at all. It meant that the right to manage, havingbeen conferred in absolute terms, could not be interfered with atall although the object of that management could be determinedby general pattern to be laid down by the State, which couldprescribe the syllabi and standards of education. Speaking formyself, I find it very difficult to separate the objects and standardsof teaching from right to determine who should teach and whattheir qualifications should be. Moreover, if the “standards ofeducation” are not part of management, it is difficult to see howthey are exceptions to the principle of freedom of managementfrom control. Again, if what is aimed at directly is to be distinguishedfrom an indirect effect of it, the security of tenure of teachers andprovisions intended to ensure fair and equitable treatment for themby the management of an institution would also not be directlyaimed at interference with its management. They could moreproperly be viewed as designed to improve and ensure theexcellence of teachers available at the institution, and, therefore,to raise the general standard of education. I think that it is enoughfor us to distinguish this case on the ground that the provisions tobe interpreted by us are different, although, speaking for myself, I

feel bound to say, with great respect, that I am unable to acceptevery proposition found stated there as correct. In that case, theprovisions of the Kerala University Act 9 of 1969, consideredthere were inescapable for the minority institutions which claimedthe right to be free from their operation. As I have alreadyobserved, in the case before us, Section 38-B of the Act providesthe petitioning College before us with practically certain modeof escape from the compulsiveness of provisions other thanSections 5, 40, and 41 of the Act if claims made on its behalf arecorrect.

232. Even if Article 30(1) of the Constitution is held to conferabsolute and unfettered rights of management upon minorityinstitutions, subject only to absolutely minimal and negative controlsin the interests of health and law and order, it could not be meantto exclude greater degree of regulation and control when aminority institution enters the wider sphere of general secular andnon-denominational education, largely employs teachers who arenot members of the particular minority concerned, and when itderives large parts of its income from the fees paid by those whoare not members of the particular minority in question. Such greaterdegree of control could be justified by the need to secure theinterests of those who are affected by the management of theminority institution and the education it imparts but who are notmembers of the minority in management. In other words, thedegree of reasonably permissible control must vary from situationto situation. For the reasons already given above, I think that,apart from Sections 5, 40 and 41 of the Act, which directly andunreasonably impinge upon the rights of the petitioning minoritymanaged college, protected by Article 30(1) of the Constitution, Ido not think that the other provisions have that effect. On thesituation under consideration before us, the minority institutionaffected by the enactment has, upon the claims put forward on itsbehalf, means of escape from the impugned provisions otherthan Sections 5, 40 and 41 of the Act by resorting to Section 38Bof the Act.”

(emphasis supplied)

23.In The Gandhi Faiz-e-am College, Shahjahanpur v.HUniversity of Agra and Anr., (1975) 2 SCC 283, the Court considered

whether statute framed by University of Agra infringed fundamentalrights of the minority community and observed thus:

“16. The discussion throws us back to closer study of Statute14-A to see if it cuts into the flesh of the management’s right ormerely tones up its health and habits. The two requirements theUniversity asks for are that the managing body (whatever its name)must take in (a) the Principal of the College; (b) its seniormostteacher. Is this desideratum dismissible as biting into the autonomyof management or tenable as ensuring the excellence of theinstitution without injuring the essence of the right? On carefulreflection and conscious of the constitutional dilemma, we areinclined to the view that this case falls on the valid side of thedelicate line. Regulation which restricts is bad, but regulation whichfacilitates is good. Where does this fine distinction lie? No rigidformula is possible, but flexible test is feasible. Where the objectand effect is to improve the tone and temper of the administrationwithout forcing on it stranger, however superb his virtues be,where the directive is not to restructure the governing body but tobetter its performance by marginal catalytic induction, whereno external authority’s fiat or approval or outside nominee is madecompulsory to validate the Management Board but inclusion ofan internal key functionary appointed by the autonomousmanagement alone is asked for, the provision is salutary and saved,being not diktat eroding the freedom of the freedom.”

(emphasis supplied)

The majority negated the challenge. It was held that regulationwhich restricts is bad, but provision which facilitates is good.

24. In Frank Anthony Public School Employees’ Associationv. Union of India and others, (1986) 4 SCC 707, question arose whetherteachers and other employees working in an unaided school were entitledto same pay-scale, allowances, and benefits. The Court allowed thepetition and opined thus:

“16. The excellence of the instruction provided by an institutionwould depend directly on the excellence of the teaching staff, andin turn, that would depend on the quality and the contentment ofthe teachers. Conditions of service pertaining to minimumqualifications of teachers, their salaries, allowances and other

Aconditions of service which ensure security, contentment anddecent living standards to teachers and which will consequentlyenable them to render better service to the institution and thepupils cannot surely be said to be violative of the fundamentalright guaranteed by Article 30(1) of the Constitution. Themanagement of minority Educational Institution cannot beBpermitted under the guise of the fundamental right guaranteed byArticle 30(1) of the Constitution, to oppress or exploit its employeesany more than any other private employee. Oppression orexploitation of the teaching staff of an educational institution isbound to lead, inevitably, to discontent and deterioration of theCstandard of instruction imparted in the institution affecting adverselythe object of making the institution an effective vehicle of educationfor the minority community or other persons who resort to it. Themanagement of minority institution cannot complain of invasionof the fundamental right to administer the institution when it deniesthe members of its staff the opportunity to achieve the very objectDofArticle 30(1) which is to make the institution an effective vehicleof education.”

(emphasis supplied)

25. In Bihar State Madarasa Education Board, Patna v.EMadarasaHanfia Arabic College, Jamalia and others, (1990) 1 SCC428, the Court held that minorities have the right to establish and administereducational institution of their own choice. Still, they have no right tomaladminister, and the State has the power to regulate the managementand administration of such institutions in the interest of educational needand discipline of the institution. The Court held thus:F

“6. The question which arises for consideration is whether Section7(2)(n) which confers power on the Board to dissolve theManaging Committee of an aided and recognised Madarasainstitution violates the minorities constitutional right to administerits educational institution according to their choice. This CourtGhas all along held that though the minorities have right to establishand administer educational institution of their own choice but theyhave no right to maladminister and the State has power to regulatemanagement and administration of such institutions in the interestof educational need and discipline of the institution. Such regulationmay have indirect effect on the absolute right of minorities but

that would not violate Article 30(1) of the Constitution as it is theduty of the State to ensure efficiency in educational institutions.The State has, however, no power to completely take over themanagement of minority institution. Under the guise of regulatingthe educational standards to secure efficiency in institution, theState is not entitled to frame rules or regulations compelling themanagement to surrender its right of administration. In State ofKerala v. Very Rev. Mother Provincial, (1970) 2 SCC 417, Section63(1) of the Kerala University Act, 1969 which conferred poweron the government to take over the management of minorityinstitution on its default in carrying out the directions of the StateGovernment was declared ultra vires on the ground that theprovisions interfered with the constitutional right of minority toadminister its institution. Minority institutions cannot be allowedto fall below the standard of excellence on the pretext of theirexclusive right of management but at the same time theirconstitutional right to administer their institutions cannot becompletely taken away by superseding or dissolving ManagingCommittee or by appointing ad hoc committees in place thereof.In the instant case Section 7(2)(n) is clearly violative ofconstitutional right of minorities under Article 30(1) of theConstitution insofar as it provides for dissolution of ManagingCommittee of Madarasa. We agree with the view taken by theHigh Court.”

(emphasis supplied)

26.In St. Stephen’s College v. University of Delhi, (1992) 1SCC 558, concerning admission process adopted by aided minorityinstitutions, various questions were raised thus:

“41. It was contended that St. Stephen’s College after beingaffiliated to the Delhi University has lost its minority character.The argument was based on some of the provisions in the DelhiUniversity Act and the Ordinances made thereunder. It was saidthat the students are admitted to the University and not to theCollege as such. But we find no substance in the contention. Inthe first place, it may be stated that the State or any instrumentalityof the State cannot deprive the character of the institution, foundedby minority community by compulsory affiliation since Article30(1) is special right to minorities to establish educational

institutions of their choice. The minority institution has distinctidentity and the right to administer with continuance of such identitycannot be denied by coercive action. Any such coercive actionwould be void being contrary to the constitutional guarantee. Theright to administer is the right to conduct and manage the affairsof the institution. This right is exercised by body of persons inwhom the founders have faith and confidence. Such amanagement body of the institution cannot be displaced orreorganised if the right is to be recognised and maintained.Reasonable regulations however, are permissible but regulationsshould be of regulatory nature and not of abridgment of the rightguaranteed under Article 30(1).

60.The right to select students for admission is part ofadministration. It is indeed an important facet of administration.This power also could be regulated but the regulation must bereasonable just like any other regulation. It should be conduciveto the welfare of the minority institution or for the betterment ofthose who resort to it. The Bombay Government order whichprevented the schools using English as the medium of instructionfrom admitting students who have mother tongue other thanEnglish was held to be invalid since it restricted the admissionpattern of the schools [State of Bombay v. Bombay EducationSociety,(1955) 1 SCR 568]. The Gujarat Government direction tothe minority run college to reserve 80 per cent of seats forgovernment selected candidates with threat to withdraw thegrant-in-aid and recognition was struck down as infringing thefundamental right guaranteed to minorities under Article 30(1) ofthe Constitution [Sidhajbhai Sabhai v. State of Bombay, (1963)3 SCR 837]. In Rt. Rev. Magr. Mark Netto v. State of Kerala,(1979) 1 SCC 23, the denial of permission to the management ofa minority school to admit girl students was held to be bad. TheRegional Deputy Director in that case refused to give sanctionfor admission of girl students on two grounds: (i) that the schoolwas not opened as mixed school and that the school has beenrun purely as boys school for 25 years; and (ii) that there wasfacility for the education of girls of the locality in nearby girlsschool which was established by the Muslims and was also aminority institution. This Court noted that the Christian communityin the locality wanted their girls also to receive education in theschool maintained specially by their own community. They did notthink it in their interest to send their children to the Muslim girlsschool run by the other minority community. The withholding ofpermission for admission of girl students in the boys minority schoolwas violative of Article 30(1). It was also observed that the rulesanctioning such refusal of permission crosses the barrier ofregulatory measures and comes in the region of interference withthe administration of the institution, right which is guaranteed tothe minority under Article 30(1). The Court restricted the operationof the rule and made it inapplicable to the minority educationalinstitution. In Director of School Education, Government ofT.N. v. Rev. Brother G. Arogiasamy,AIR 1971 Mad 440, theMadras High Court had an occasion to consider the validity of anuniform procedure prescribed by the State Government foradmission of candidates to the aided training schools. Thegovernment directed that the candidates should be selected bythe school authorities by interviewing every candidate eligible foradmission and assessing and awarding marks in the interview.The marks awarded to each candidate in the interview will beadded to the marks secured by the candidate in the SSLC publicexamination. On the basis of the aggregate of marks in the SSLCexamination and those obtained at the interview the selection wasto be made without any further discretion. The High Court heldthat the method of selection placed serious restrictions on thefreedom of the minority institution to admit their own students. Itwas found that the students of the minority community could notcompete with the students belonging to other communities. Theapplications of students from other communities could not berestricted under law. The result was that the students of minoritycommunity for whose benefit the institution was founded, hadlittle chance of getting admission. The High Court held that thegovernment order prescribing the uniform method of selectioncould not be applied to minority institutions.

78. Having set the scene, we can deal with the provisions ofArticles 29(1) and 30(1) relatively quickly. Under Article 29(1)every section of the citizens having distinct language, script orculture of its own has the right to conserve the same. Under Article29(1), the minorities — religious or linguistic — are entitled toestablish and administer educational institutions to conserve their

Adistinct language, script or culture. However, it has been consistentlyheld by the courts that the right to establish an educational institutionis not confined to purposes of conservation of language, script orculture. The rights in Article 30(1) are of wider amplitude. Thewidth of Article 30(1) cannot be cut down by the considerationson which Article 29(1) is based. The words “of their choice” inBArticle 30(1) leave vast options to the minorities in selecting thetype of educational institutions which they wish to establish. Theycan establish institutions to conserve their distinct language, scriptor culture or for imparting general secular education or for boththe purposes. (See: Father W. Proost v. State of Bihar, (1969) 2CSCR 73,Ahmedabad St. Xavier’s College v. State of Gujarat,(1974) 1 SCC 717; and Kerala Education Bill case, 1959 SCR995.)”

(emphasis supplied)

The decision in St. Stephen’s College (supra) has been analysedDby my esteemed brother Lalit, J. in Sk. Md. Rafique v. ManagingCommittee, ContaiRahamania High Madrasah and Ors., 2020 (1)SCALE 345, thus:

“28. In St. Stephen’s College vs. University of Delhi, (1992) 1SCC 558 Bench of five Judges of this Court had an occasion toEconsider the admission process adopted by two aided minorityinstitutions viz. St. Stephen’s College at Delhi and AllahabadAgricultural Institute at Naini. The factual context as summed-upin the majority judgment authored by Shetty, J., was as under:

“68. It is not in dispute that St. Stephen’s College and AllahabadFAgricultural Institute are receiving grant-in-aid from thegovernment. St. Stephen’s College gives preference to Christianstudents. The Allahabad Agricultural Institute reserves 50 percent of the seats for Christian students. The Christianstudents admitted by preference or against the quota reservedGare having less merit in the qualifying examination than theother candidates. The other candidates with more merit aredenied admission on the ground that they are not Christians.

69. It was argued for the University and the Students Unionthat since both the institutions are receiving State aid, theinstitutional preference for admission based on religion isH

violative of Article 29(2) of the Constitution. The institutionsshall not prefer or deny admission to candidates on ground ofreligion. For institutions, on the other hand, it was claimed thatany preference given to the religious minority candidates intheir own institutions cannot be discrimination falling underArticle 29(2). The institutions are established for the benefitof their community and if they are prevented from admittingtheir community candidates, the purpose of establishing theinstitutions would be defeated. The minorities are entitled toadmit their candidates by preference or by reservation. Theyare also entitled to admit them to the exclusion of all othersand that right flows from the right to establish and administereducational institutions guaranteed under Article 30(1).”

28.1. The majority judgment dealt with the submissions raised bythe institution as under:

“80. Equally, it would be difficult to accept thesecond submission that the minorities are entitled toestablish and administer educational institutions for theirexclusive benefit. The choice of institution provided inArticle 30(1) does not mean that the minorities could establisheducational institution for the benefit of their own communitypeople. Indeed, they cannot. It was pointed out in Re, KeralaEducation Bill that the minorities cannot establish educationalinstitution only for the benefit of their community. If such wasthe aim, Article 30(1) would have been differently worded andit would have contained the words “for their own community”.In the absence of such words it is legally impermissible toconstrue the article as conferring the right on the minorities toestablish educational institution for their own benefit.

81. Even in practice, such claims are likely to be met withconsiderable hostility. It may not be conducive to have arelatively homogeneous society. It may lead to religious bigotrywhich is the bane of mankind. In the nation building with secularcharacter sectarian schools or colleges, segregated facultiesor universities for imparting general secular education areundesirable and they may undermine secular democracy. Theywould be inconsistent with the central concept of secularismand equality embedded in the Constitution. Every educational

DEF

institution irrespective of community to which it belongs is a‘melting pot’ in our national life. The students and teachers arethe critical ingredients. It is there they develop respect for, andtolerance of, the cultures and beliefs of others. It is essentialtherefore, that there should be proper mix of students ofdifferent communities in all educational institutions.”

28.3. The majority Judgment, then, considered the matter fromthe perspective of “Rights of Minorities and Balancing Interest” andobserved:

“101. Laws carving out the rights of minorities inArticle 30(1) however, must not be arbitrary, invidious orunjustified; they must have reasonable relation between the aimand the means employed. The individual rights will necessarilyhave to be balanced with competing minority interests. InSidhajbhai case (1963) 3 SCR 837 the government orderdirecting the minority run college to reserve 80 per cent of seatsfor government nominees and permitting only 20 per cent of seatsfor the management with threat to withhold the grant-in-aidand recognition was struck down by the Court as infringing thefundamental freedom guaranteed by Article 30(1). Attention mayalso be drawn to Article 337 of the Constitution which provided aspecial concession to Anglo-Indian community for ten years fromthe commencement of the Constitution. Unlike Article 30(2) itconferred positive right on the Anglo-Indian community to getgrants from the government for their educational institutions,but subject to the condition that at least 40 per cent of annualadmission were made available to members of other communities.

102. In the light of all these principles and factors, and in view ofthe importance which the Constitution attaches to protectivemeasures to minorities under Article 30(1), the minority aidededucational institutions are entitled to prefer their communitycandidates to maintain the minority character of the institutionssubject of course to conformity with the University standard. TheState may regulate the intake in this category with due regard tothe need of the community in the area which the institution isintended to serve. But in no case such intake shall exceed 50 percent of the annual admission. The minority institutions shall make

available at least 50 per cent of the annual admission to membersof communities other than the minority community. The admissionof other community candidates shall be done purely on the basisof merit.”

28.4. It was also observed that regulations which serve the interestof students and teachers and preserve the uniformity in standards ofeducation amongst the affiliated institutions could validly be made. Therelevant discussion in para 59 was as under:

“59. The need for detailed study on this aspect is indeed notnecessary. The right to minorities whether religious or linguistic, toadminister educational institutions and the power of the Stateto regulate academic matters and management is now fairly wellsettled. The right to administer does not include the right tomaladminister. The State being the controlling authority has rightand duty to regulate all academic matters. Regulations which willserve the interests of students and teachers, and to preserve theuniformity in standards of education among the affiliated institutionscould be made. The minority institutions cannot claimimmunity against such general pattern and standard or againstgeneral laws such as laws relating to law and order, health,hygiene, labour relations, social welfare legislations, contracts, tortsetc. which are applicable to all communities. So long as the basicright of minorities to manage educational institution is not takenaway, the State is competent to make regulatory legislation.Regulations, however, shall not have the effect of depriving theright of minorities to educate their children in their own institution.That is privilege which is implied in the right conferred byArticle 30(1).”

28.5. The dissenting opinion of Kasliwal, J. quoted passagefrom the Constituent Assembly Debates (CAD) touching upon the matterin issue as under:-

“137. These were Articles 23(1) on the one hand and 23(3)(a)and 23(3)(b) on the other hand in the Draft Constitution. Firstly,Dr. B.R. Ambedkar said in relation to draft Article 23(2)corresponding to the present Article 28 of the Constitution thateven in relation to Articles 30 and 29 the State was completelyfree to give or not to give aid to the educational institutions of thereligious or linguistic minorities. He said:

“Now, with regard to the second clause I think it has not beensufficiently well understood. We have tried to reconcile theclaim of community which has started educational institutionsfor the advancement of its own children either in education orin cultural matters, to permit to give religious instruction in suchinstitutions; notwithstanding the fact that it receives certain aidfrom the State. The State, of course, is free to give aid, is freenot to give aid; the only limitation we have placed is this, thatthe State shall not debar the institution from claiming aid underits grant-in-aid code merely on the ground that it is run andmaintained by community and not maintained by publicbody. We have there provided also further qualification, thatwhile it is free to give religious instruction in the institution andthe grant made by the State shall not be bar to the giving ofsuch instruction, it shall not give instruction to, or make itcompulsory upon, the children belonging to other communitiesunless and until they obtain the consent of the parents ofthese children. That, I think, is salutary provision. It performstwo functions...

Shri H.V. Kamath: On point of clarification what aboutinstitutions and schools run by community or minority forits own pupils — not school where all communities are mixedbut school run by the community for its own pupils?

The Hon’ble Dr. B.R. Ambedkar: If my friend, Mr. Kamathwill read the other article he will see that once an institution,whether maintained by the community or not, gets grant, thecondition is that it shall keep the school open to all communities.That provision he has not read.”

138. He reaffirmed the freedom of the State to give or not togive aid to these schools when directly referringto draft Article 23 which is the precursor of the presentArticles 29 and 30 as follows (VII CAD 923):

“I think another thing which has to be borne in readingArticle 23 is that it does not impose any obligation or burdenupon the State. It does not say that, when for instance theMadras people come to Bombay, the Bombay Governmentshall be required by law to finance any project of givingeducation either in Tamil language or in Andhra language

or any other language. There is no burden cast upon theState. The only limitation that is imposed by Article 23 isthat if there is cultural minority which wants to preserveits language, its script and its culture, the State shall not bylaw impose upon it any other culture which may be eitherlocal or otherwise.”

And, went on to observe that once an institution was receivingaid, “it must abide by the rigor of Article 29(2) in the matter ofadmission of students in the college” and “as already held byme, St. Stephen’s College and Allahabad Agricultural Instituteare not entitled to claim any preferential right or reservation infavour of students of Christian community as they are gettinggrant-in-aid and as such I do not consider it necessary to labourany more on the question of deciding as to what percentagecan be considered as reasonable.”

(emphasis supplied)

The Court held that the choice of institution does not mean thatthe minorities could establish educational institution for the benefit oftheir own community people. In ReTheKerala Education Bill (supra),it was considered and observed that the minorities cannot establisheducational institution only for the benefit of their community. Everyeducational institution, irrespective of community to which it belongs, isa ‘melting pot’ in our national life and that there should be mixing up ofstudents of different communities in all educational institutions. The intakefor the community cannot exceed 50% of the annual admission, which isto be provided to other than the minority community. The admissionshould be made purely on the basis of merit.

27. In T.M.A. Pai Foundation (supra), decided by Bench of 11Judges of the Court,on consideration of the rights under Article 30 of theConstitution of India, held thus:

“3. The hearing of these cases has had chequered history. WritPetition No. 350 of 1993 filed by the Islamic Academy of Educationand connected petitions were placed before Bench of five Judges.As the Bench was prima facie of the opinion that Article 30 didnot clothe minority educational institution with the power to adoptits own method of selection and the correctness of the decisionof this Court in St. Stephen’s College v. University of Delhi,

(1992) 1 SCC 558, was doubted, it was directed that the questionsthat arose should be authoritatively answered by larger Bench.These cases were then placed before Bench of seven Judges.The questions framed were recast and on 6-2-1997, the Courtdirected that the matter be placed before Bench of at leasteleven Judges, as it was felt that in view of the Forty-secondAmendment to the Constitution, whereby “education” had beenincluded in Entry 25 of List III of Seventh Schedule, the question ofwho would be regarded as ”minority” was required to beconsidered because the earlier case-law related to the pre-amendment era, when education was only in the State List. Whenthe cases came up for hearing before an eleven-Judge Bench,during the course of hearing on 19-3-1997, the following orderwas passed:

“Since doubt has arisen during the course of our argumentsas to whether this Bench would feel itself bound bythe ratio propounded in —Kerala Education Bill, 1957, InRe, AIR 1958 SC 956 and Ahmedabad St. Xavier’s CollegeSociety v. State of Gujarat, (1974) 1 SCC 717it is clarifiedthat this sized Bench would not feel itself inhibited by the viewsexpressed in those cases since the present endeavour is todiscern the true scope and interpretation of Article 30(1) ofthe Constitution, which being the dominant question wouldrequire examination in its pristine purity. The factum isrecorded.””

38. The scheme in Unni Krishnan case, (1993) 1 SCC 645 hasthe effect of nationalizing education in respect of important featuresviz. the right of private unaided institution to give admission andto fix the fee. By framing this scheme, which has led to the StateGovernments legislating in conformity with the scheme, the privateinstitutions are indistinguishable from the government institutions;curtailing all the essential features of the right of administration ofa private unaided educational institution can neither be called fairnor reasonable. Even in the decision in Unni Krishnan case ithas been observed by Jeevan Reddy, J., at p. 749, para 194, asfollows:

“194. The hard reality that emerges is that private educationalinstitutions are necessity in the present-day context. It is not

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATIONv. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

possible to do without them because the governments are inno position to meet the demand — particularly in the sector ofmedical and technical education which call for substantialoutlays. While education is one of the most important functionsof the Indian State it has no monopoly therein. Privateeducational institutions — including minority educationalinstitutions — too have role to play.”

40.Any system of student selection would be unreasonable if itdeprives the private unaided institution of the right of rationalselection, which it devised for itself, subject to the minimumqualification that may be prescribed and to some system ofcomputing the equivalence between different kinds of qualifications,like common entrance test. Such system of selection can involveboth written and oral tests for selection, based on principle offairness.

45. In view of the discussion hereinabove, we hold that the decisionin Unni Krishnan case, (1993) 1 SCC 645 insofar as it framedthe scheme relating to the grant of admission and the fixing of thefee, was not correct, and to that extent, the said decision and theconsequent directions given to UGC, AICTE, the Medical Councilof India, the Central and State Governments etc. are overruled.

50.The right to establish and administer broadly comprises thefollowing rights:

(a) to admit students;

(b) to set up reasonable fee structure;

(c) to constitute governing body;

(d) to appoint staff (teaching and non-teaching); and

(e) to take action if there is dereliction of duty on the part ofany employees.

53. With regard to the core components of the rights under Articles19 and 26(a), it must be held that while the State has the right toprescribe qualifications necessary for admission, private unaidedcolleges have the right to admit students of their choice, subject toan objective and rational procedure of selection and the compliancewith conditions, if any, requiring admission of small percentage

of students belonging to weaker sections of the society by grantingthem freeships or scholarships, if not granted by the Government.Furthermore, in setting up reasonable fee structure, the elementof profiteering is not as yet accepted in Indian conditions. The feestructure must take into consideration the need to generate fundsto be utilized for the betterment and growth of the educationalinstitution, the betterment of education in that institution and toprovide facilities necessary for the benefit of the students. In anyevent, private institution will have the right to constitute its owngoverning body, for which qualifications may be prescribed by theState or the university concerned. It will, however, be objectionableif the State retains the power to nominate specific individuals ongoverning bodies. Nomination by the State, which could be on apolitical basis, will be an inhibiting factor for private enterprise toembark upon the occupation of establishing and administeringeducational institutions. For the same reasons, nomination ofteachers either directly by the department or through servicecommission will be an unreasonable inroad and an unreasonablerestriction on the autonomy of the private unaided educationalinstitution.68. It would be unfair to apply the same rules and regulationsregulating admission to both aided and unaided professionalinstitutions. It must be borne in mind that unaided professionalinstitutions are entitled to autonomy in their administration while,at the same time, they do not forego or discard the principle ofmerit. It would, therefore, be permissible for the university or theGovernment, at the time of granting recognition, to require privateunaided institution to provide for merit-based selection while, atthe same time, giving the management sufficient discretion inadmitting students. This can be done through various methods.For instance, certain percentage of the seats can be reservedfor admission by the management out of those students who havepassed 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 ofcounselling by the State agency. This will incidentally take care ofpoorer and backward sections of the society. The prescription ofpercentage for this purpose has to be done by the Governmentaccording to the local needs and different percentages can be

fixed for minority unaided and non-minority unaided andprofessional colleges. The same principles may be applied to othernon-professional but unaided educational institutions viz. graduationand postgraduation non-professional colleges or institutes.

71. While giving aid to professional institutions, it would bepermissible for the authority giving aid to prescribe by rules orregulations, the conditions on the basis of which admission will begranted to different aided colleges by virtue of merit, coupled withthe reservation policy of the State. The merit may be determinedeither through common entrance test conducted by the universityor the Government followed by counselling, or on the basis of anentrance test conducted by individual institutions — the methodto be followed is for the university or the Government to decide.The authority may also devise other means to ensure that admissionis granted to an aided professional institution on the basis of merit.In the case of such institutions, it will be permissible for theGovernment or the university to provide that consideration shouldbe shown to the weaker sections of the society.

90. In the exercise of this right to conserve the language, script orculture, that section of the society can set up educational institutions.The right to establish and maintain educational institutions of itschoice is necessary concomitant to the right conferred byArticle 30. The right under Article 30 is not absolute.Article 29(2) provides that, where any educational institution ismaintained by the State or receives aid out of State funds, nocitizen shall be denied admission on the grounds only of religion,race, caste, language or any of them. The use of the expression“any educational institution” in Article 29(2) would (sic not) referto any educational institution established by anyone, but which ismaintained by the State or receives aid out of State funds. Inother words, on plain reading, State-maintained or aidededucational institutions, whether established by the Governmentor the majority or minority community cannot deny admission toa citizen on the grounds only of religion, race, caste or language.

93. Can Article 30(1) be so read as to mean that it containsan absolute right of the minorities, whether based on religion orlanguage, to establish and administer educational institutions in anymanner they desire, and without being obliged to comply with

the provisions of any law? Does Article 30(1) give the religiousor linguistic minorities right toestablish an educational institutionthat propagates religious or racial bigotry or ill will amongst thepeople? Can the right under Article 30(1) be so exercised that itis opposed to public morality or health? In the exercise of its right,would the minority while establishing educational institutions notbe bound by town planning rules and regulations? Canthey construct and maintain buildings in any manner they desirewithout complying with the provisions of the building bye-laws orhealth regulations?

105. In Rev. SidhajbhaiSabhai v. State of Bombay, (1963) 3SCR 837, this Court had to consider the validity of an order issuedby the Government of Bombay whereby from the academic year1955-56, 80% of the seats in the training colleges for teachers innon-government training colleges were to be reserved for theteachers nominated by the Government. The petitioners, whobelonged to the minority community, were, inter alia, running atraining college for teachers, as also primary schools. The saidprimary schools and college were conducted for the benefit ofthe religious denomination of the United Church of Northern Indiaand Indian Christians generally, though admission was not deniedto students belonging to other communities. The petitionerschallenged the government order requiring 80% of the seats tobe filled by nominees of the Government, inter alia, on the groundthat the petitioners were members of religious denomination andthat they constituted religious minority, and that the educationalinstitutions had been established primarily for the benefit of theChristian community. It was the case of the petitioners that thedecision of the Government violated their fundamental rightsguaranteed by Articles 30(1), 26(a), (b), (c) and (d), and 19(1)(f)and (g). While interpreting Article 30, it was observed by thisCourt at SCR pp. 849-50 as under:

“All minorities, linguistic or religious have by Article 30(1)an absolute right to establish and administer educationalinstitutions of their choice; and any law or executive directionwhich seeks to infringe the substance of that right underArticle 30(1) would to that extent be void. This, however, isnot to say that it is not open to the State to impose regulations

upon the exercise of this right. The fundamental freedom is toestablish and to administer educational institutions: it is right toestablish and administer what are in truth educational institutions,institutions which cater to the educational needs of the citizens,or sections thereof. Regulation made in the true interests ofefficiency of instruction, discipline, health, sanitation, morality,public order and the like may undoubtedly be imposed. SuchRegulations are not restrictions on the substance of the rightwhich is guaranteed: they secure the proper functioning of theinstitution, in matters educational.”106. While coming to the conclusion that the right of the privatetraining colleges to admit students of their choice was severelyrestricted, this Court referred to the opinion in Kerala EducationBill, 1957 case, 1959 SCR 995, but distinguished it by observingthat the Court did not, in that case, lay down any testof reasonableness of the regulation. No general principle on whichthe reasonableness of regulation may be tested was sought tobe laid down in Kerala Education Bill, 1957 case, 1959 SCR995 and, therefore, it was held in SidhajbhaiSabhai case, (1963)3 SCR 837 that the opinion in that case was not an authority forthe proposition that all regulative measures, which were notdestructive or annihilative of the character of the institutionestablished by the minority, provided the regulations were in thenational or public interest, were valid. In this connection it wasfurther held at SCR pp. 856-57, as follows:

“The right established by Article 30(1) is fundamentalright declared in terms absolute. Unlike the fundamentalfreedoms guaranteed by Article 19, it is not subjectto reasonable restrictions. It is intended to be real right forthe protection of the minorities in the matter of setting up ofeducational institutions of their own choice. The right is intendedto be effective and is not to be whittled down by so-calledregulative measures conceived in the interest not of the minorityeducational institution, but of the public or the nation as whole.If every order which while maintaining the formal characterof minority institution destroys the power of administration isheld justifiable because it is in the public or national interest,though not in its interest as an educational institution, the right

guaranteed by Article 30(1) will be but ‘teasing illusion’,a promise of unreality. Regulations which may lawfully beimposed either by legislative or executive action as conditionof receiving grant or of recognition must be directed to makingthe institution while retaining its character as minority institutioneffective as an educational institution. Such regulation mustsatisfy dual test — the test of reasonableness, and the testthat it is regulative of the educational character of the institutionand is conducive to making the institution an effective vehicleof education for the minority community or other persons whoresort to it.”

107. The aforesaid decision does indicate that the right underArticle 30(1) is not so absolute as to prevent the Government frommaking any regulation whatsoever. As already noted hereinabove,in SidhajbhaiSabhai case, (1963) 3 SCR 837, it was laid downthat regulations made in the true interests of efficiency of instruction,discipline, health, sanitation, morality and public order could beimposed. If this is so, it is difficult to appreciate how theGovernment can be prevented from framing regulations that arein the national interest, as it seems to be indicated in the passagequoted hereinabove. Any regulation framed in the national interestmust necessarily apply to all educational institutions, whether runby the majority or the minority. Such limitation must necessarilybe read into Article 30. The right under Article 30(1) cannot besuch as to override the national interest or to prevent theGovernment from framing regulations in that behalf. It is, of course,true that government regulations cannot destroy the minoritycharacter of the institution or make the right to establish andadminister mere illusion; but the right under Article 30 is not soabsolute as to be above the law. It will further be seen thatin SidhajbhaiSabhai case, (1963) 3 SCR 837, no reference wasmade to Article 29(2) of the Constitution. This decision, therefore,cannot be an authority for the proposition canvassed before us.119. In concurrent judgment, while noting (at SCC p. 770, para73) that ”clause (2) of Article 29 forbids the denial of admissionto citizens into any educational institution maintained by the Stateor receiving aid out of State funds on grounds only of religion,race, caste, language or any of them”, Khanna, J. then examined

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATIONv. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

Article 30, and observed at SCR p. 222, as follows: (SCC p. 770,para 74)

“74. Clause (1) of Article 30 gives right to all minorities,whether based on religion or language, to establish andadminister educational institutions of their choice. Analysingthat clause it would follow that the right which has beenconferred by the clause is on two types of minorities. Thoseminorities may be based either on religion or on language. Theright conferred upon the said minorities is to establish andadminister educational institutions of their choice. The word‘establish’ indicates the right to bring into existence, while theright to administer an institution means the right to effectivelymanage and conduct the affairs of the institution. Administrationconnotes management of the affairs of the institution. Themanagement must be free of control so that the founders ortheir nominees can mould the institution as they think fit and inaccordance with their ideas of how the interest of thecommunity in general and the institution in particular will bebest served. The words ‘of their choice’ qualify the educationalinstitutions and show that the educational institutions establishedand administered by the minorities need not be of some particularclass; the minorities have the right and freedom to establish andadminister such educational institutions as they choose. Clause(2) of Article 30 prevents the State from making discriminationin the matter of grant of aid to any educational institution onthe ground that the institution is under the management of aminority, whether based on religion or language.”

120. Explaining the rationale behind Article 30, it was observedat SCR p. 224, as follows: (SCC p. 772, para 77)

“77. The idea of giving some special rights to the minorities isnot to have kind of privileged or pampered section of thepopulation but to give to the minorities sense of security anda feeling of confidence. The great leaders of India since timeimmemorial had preached the doctrine of tolerance andcatholicity of outlook. Those noble ideas were enshrined in theConstitution. Special rights for minorities were designed not tocreate inequality. Their real effect was to bring about equalityby ensuring the preservation of the minority institutions and by

ABC

FGH

guaranteeing to the minorities autonomy in the matter of theadministration of those institutions. The differential treatmentfor the minorities by giving them special rights is intended tobring about an equilibrium, so that the ideal of equality may notbe reduced to mere abstract idea but should become livingreality and result in true, genuine equality, an equality not merelyin theory but also in fact.”

121. While advocating that provisions of the Constitution shouldbe construed according to the liberal, generous and sympatheticapproach, and after considering the principles which could bediscerned by him from the earlier decisions of this Court, Khanna,J., observed at SCR p. 234, as follows: (SCC p. 781, para 89)

“The minorities are as much children of the soil as the majorityand the approach has been to ensure that nothing should bedone as might deprive the minorities of sense of belonging,of feeling of security, of consciousness of equality and ofthe awareness that the conservation of their religion, culture,language and script as also the protection of their educationalinstitutions is fundamental right enshrined in the Constitution.The same generous, liberal and sympathetic approach shouldweigh with the courts in construing Articles 29 and 30 asmarked the deliberations of the Constitution-makers in draftingthose articles and making them part of the fundamental rights.The safeguarding of the interest of the minorities amongstsections of population is as important as the protection of theinterest amongst individuals of persons who are below the ageof majority or are otherwise suffering from some kindof infirmity. The Constitution and the laws made by civilizednations, therefore, generally contain provisions for theprotection of those interests. It can, indeed, be said to be anindex of the level of civilization and catholicity of nation as tohow far their minorities feel secure and are not subject to anydiscrimination or suppression.”

122. The learned Judge then observed that the right of theminorities to administer educational institutions did not prevent themaking of reasonable regulations in respect of these institutions.Recognizing that the right to administer educational institutionscould not include the right to maladminister, it was held that

regulations could be lawfully imposed, for the receiving of grantsand recognition, while permitting the institution to retain itscharacter as minority institution. The regulation ”must satisfy adual test — the test of reasonableness, and the test that it isregulative of the educational character of the institution and isconducive to making the institution an effective vehicle of educationfor the minority community or other persons who resort to it”.(SCC p. 783, para 92) It was permissible for the authorities toprescribe regulations, which must be complied with, before aminority institution could seek or retain affiliation and recognition.But it was also stated that the regulations made by the authorityshould not impinge upon the minority character of theinstitution. Therefore, balance has to be kept between the twoobjectives — that of ensuring the standard of excellence of theinstitution, and that of preserving the right of the minorities toestablish and administer their educational institutions. Regulationsthat embraced and reconciled the two objectives could beconsidered to be reasonable. This, in our view, is the correctapproach to the problem.123. After referring to the earlier cases in relation to theappointment of teachers, it was noted by Khanna, J., that theconclusion which followed was that law which interfered with aminority’s choice of qualified teachers, or its disciplinary controlover teachers and other members of the staff of the institution,was void, as it was violative of Article 30(1). While it waspermissible for the State and its educational authorities to prescribethe qualifications of teachers, it was held that once the teacherspossessing the requisite qualifications were selected by theminorities for their educational institutions, the State would haveno right to veto the selection of those teachers. The selection andappointment of teachers for an educational institution was regardedas one of the essential ingredients under Article 30(1). The Court’sattention was drawn to the fact that in Kerala Education Bill,1957 case, 1959 SCR 995, this Court had opined that clauses 11and 12 made it obligatory for all aided schools to select teachersfrom panel selected from each district by the PublicService Commission and that no teacher of an aided school couldbe dismissed, removed or reduced in rank without theprevious sanction of the authorized officer. At SCR p.245, Khanna,

ABCD

J., observed that in cases subsequent to the opinion in KeralaEducation Bill, 1957 case, (1959) SCR 995 this Court had heldsimilar provisions as clause 11 and clause 12 to be violative ofArticle 30(1) of the minority institutions. He then observed asfollows: (SCC p. 792, para 109).

“The opinion expressed by this Court in Re Kerala EducationBill, 1957, 1959 SCR 995, was of an advisory character andthough great weight should be attached to it because of itspersuasive value, the said opinion cannot override the opinionsubsequently expressed by this Court in contested cases. It isthe law declared by this Court in the subsequent contestedcases which would have binding effect. The words ‘as atpresent advised’ as well as the preceding sentence indicatethat the view expressed by this Court in Re Kerala EducationBill, 1957 in this respect was hesitant and tentative and not afinal view in the matter.”

135. We agree with the contention of the learned Solicitor-General that the Constitution in Part III does not contain or giveany absolute right. All rights conferred in Part III of the Constitutionare subject to at least other provisions of the said Part. It is difficultto comprehend that the framers of the Constitution would havegiven such an absolute right to the religious or linguistic minorities,which would enable them to establish and administer educationalinstitutions in manner so as to be in conflict with the other Partsof the Constitution. We find it difficult to accept that in theestablishment and administration of educational institutions by thereligious and linguistic minorities, no law of the land, even theConstitution, is to apply to them.

136. Decisions of this Court have held that the right to administerdoes not include the right to maladminister. It has also been heldthat the right to administer is not absolute, but must be subject toreasonable regulations for the benefit of the institutions as thevehicle of education, consistent with national interest. Generallaws of the land applicable to all persons have been held to beapplicable to the minority institutions also — for example, lawsrelating to taxation, sanitation, social welfare, economic regulation,public order and morality.137. It follows from the aforesaid decisions that even though thewords of Article 30(1) are unqualified, this Court has held that atleast certain other laws of the land pertaining to health, moralityand standards of education apply. The right under Article 30(1) has,therefore, not been held to be absolute or above other provisions ofthe law, and we reiterate the same. By the same analogy, there isno reason why regulations or conditions concerning, generally,the welfare of students and teachers should not be made applicablein order to provide proper academic atmosphere, assuch provisions do not in any way interfere with the right ofadministration or management under Article 30(1).

138. As we look at it, Article 30(1) is sort of guarantee orassurance to the linguistic and religious minority institutions of theirright to establish and administer educational institutions of theirchoice. Secularism and equality being two of the basic featuresof the Constitution, Article 30(1) ensures protection to the linguisticand religious minorities, thereby preserving the secularism of thecountry. Furthermore, the principles of equality must necessarilyapply to the enjoyment of such rights. No law can be framed thatwill discriminate against such minorities with regard to theestablishment and administration of educational institutions vis-a-

vis other educational institutions. Any law or rule or regulationthat would put the educational institutions run by the minorities ata disadvantage when compared to the institutions run by the otherswill have to be struck down. At the same time, there also cannotbe any reverse discrimination. It was observed in St. Xavier’sCollege case, (1975) 1 SCR173 at SCR p. 192 that: (SCC p. 743,para 9)

“The whole object of conferring the right on minorities underArticle 30 is to ensure that there will be equality between themajority and the minority. If the minorities do not have suchspecial protection they will be denied equality.”

In other words, the essence of Article 30(1) is to ensure equaltreatment between the majority and the minority institutions. Noone type or category of institution should be disfavoured or, forthat matter, receive more favourable treatment than another.Lawsof the land, including rules and regulations, must apply equally tothe majority institutions as well as to the minority institutions. The

minority institutions must be allowed to do what the non-minorityinstitutions are permitted to do.

139. Like any other private unaided institutions, similar unaidededucational institutions administered by linguistic or religiousminorities are assured maximum autonomy in relation thereto; e.g.method of recruitment of teachers, charging of fees and admissionof students. They will have to comply with the conditionsof recognition, which cannot be such as to whittle down the rightunderArticle 30.

144. It cannot be argued that no conditions can be imposed whilegiving aid to minority institution. Whether it is an institution runby the majority or the minority, all conditions that have relevanceto the proper utilization of the grant-in-aid by an educationalinstitution can be imposed. All that Article 30(2) states is that onthe ground that an institution is under the management of minority,whether based on religion or language, grant of aid to thateducational institution cannot be discriminated against, if othereducational institutions are entitled to receive aid. The conditionsfor grant or non-grant of aid to educational institutions have to beuniformly applied, whether it is majority-run institution or aminority-run institution. As in the case of majority-run institution,the moment minority institution obtains grant of aid, Article 28 ofthe Constitution comes into play. When an educational institutionis maintained out of State funds, no religious instruction can beprovided therein. Article 28(1) does not state that it applies onlyto educational institutions that are not established or maintainedby religious or linguistic minorities. Furthermore, uponthe receipt ofaid, the provisions of Article 28(3) would apply to alleducational institutions whether run by the minorities or the non-minorities. Article 28(3) is the right of person studying in State-recognized institution or in an educational institution receiving aidfrom State funds, not to take part in any religious instruction, ifimparted by such institution, without his/her consent (or his/herguardian’s consent if such person is minor). Just asArticles 28(1) and (3) become applicable the moment anyeducational institution takes aid, likewise, Article 29(2) would alsobe attracted and become applicable to an educational institutionmaintained by the State or receiving aid out of State funds. It wasstrenuously contended that the right to give admission is one ofthe essential ingredients of the right to administer conferred onthe religious or linguistic minority, and that this right should not becurtailed in any manner. It is difficult to accept this contention. IfArticles 28(1) and (3) apply to minority institution that receivesaid out of State funds, there is nothing in the language ofArticle 30 that would make the provisions of Article 29(2)inapplicable. Like Article 28(1) and Article 28(3), Article 29(2) refers to ”any educational institution maintained by the State orreceiving aid out of State funds”. minority institution would fallwithin the ambit of Article 29(2) in the same manner in whichArticle 28(1) and Article 28(3) would be applicable to an aidedminority institution. It is true that one of the rights to administer aneducational institution is to grant admission to the students. Aslong as an educational institution, whether belonging to the minorityor the majority community, does not receive aid, it would, in ouropinion, be its right and discretion to grant admission to such studentsas it chooses or selects subject to what has been clarified before.Out of the various rights that the minority institution has in theadministration of the institution, Article 29(2) curtails the right togrant admission to certain extent. By virtue of Article 29(2), nocitizen can be denied admission by an aided minority institution onthe grounds only of religion, race, caste, language or any of them.It is no doubt true that Article 29(2) does curtail one of the powersof the minority institution, but on receiving aid, some of the rightsthat an unaided minority institution has, are also curtailed byArticles 28(1) and 28(3).A minority educational institution has aright to impart religious instruction — this right is taken away byArticle 28(1), if that minority institution is maintained wholly outof State funds. Similarly on receiving aid out of State funds or onbeing recognized by the State, the absolute right of minorityinstitution requiring student to attend religious instruction iscurtailed by Article 28(3). If the curtailment of the right toadminister minority institution on receiving aid or being whollymaintained out of State funds as provided by Article 28 is valid,there is no reason why Article 29(2) should not be held to beapplicable. There is nothing in the language of Articles 28(1) and(3), Article 29(2) and Article 30 to suggest that, on receiving aid,Articles 28(1) and (3) will apply, but Article 29(2) will

not. Therefore, the contention that the institutions covered byArticle 30 are outside the injunction of Article 29(2) cannot beaccepted.

151. The right of the aided minority institution to preferably admitstudents of its community, when Article 29(2) was applicable, hasbeen clarified by this Court over decade ago in St. Stephen’sCollege case, (1992) 1 SCC 558. While upholding the procedurefor admitting students, this Court also held that aided minorityeducational institutions were entitled to preferably admit theircommunity candidates so as to maintain the minority character ofthe institution, and that the State may regulate the intake in thiscategory with due regard to the area that the institution wasintended to serve, but that this intake should not be more than50% in any case. Thus, St. Stephen’s endeavoured to strike abalance between the two articles. Though we accept the ratio of St.Stephen’s which has held the field for over decade, we havecompelling reservations in accepting the rigid percentage stipulatedtherein. As Article 29 and Article 30 apply not only to institutionsof higher education but also to schools, ceiling of 50% would notbe proper. It will be more appropriate that, depending upon thelevel of the institution, whether it be primary or secondary orhigh school or college, professional or otherwise, and on thepopulation and educational needs of the area in which the institutionis to be located, the State properly balances the interests of all byproviding for such percentage of students of the minority community to be admitted, so as to adequately serve the interestof the community for which the institution was established.

152. At the same time, the admissions to aided institutions, whetherawarded to minority or non-minority students, cannot be at theabsolute sweet will and pleasure of the management of minorityeducational institutions. As the regulations to promote academicexcellence and standards do not encroach upon the guaranteedrights Under Article 30, the aided minority educational institutionscan be required to observeinter semerit amongst the eligibleminority applicants and passage of common entrance test by thecandidates, where there is one, with regard to admissions inprofessional and non-professional colleges. If there is no suchtest, rational method of assessing comparative merit has to be

evolved. As regards the non-minority segment, admission may beon the basis of the common entrance test and counselling by aState agency. In the courses for which such test and counsellingare not in vogue, admission can be on the basis of relevant criteriafor the determination of merit. It would be open to the Stateauthorities to insist on allocating certain percentage of seats tothose belonging to weaker sections of society, from amongst thenon-minority seats.

Answers to eleven questions

Q. 1. ***

Q. 2. ***

Q. 3.(a) ***

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

A. Article 30(1) gives religious and linguistic minorities the right toestablish and administer educational institutions of their choice.The use of the words “of their choice” indicates that evenprofessional educational institutions would be covered by Article30.

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

A. Admission of students to unaided minority educationalinstitutions viz. schools and undergraduate colleges where thescope for merit-based selection is practically nil, cannot beregulated by the State or university concerned, except for providingthe qualifications and minimum conditions of eligibility in the interestof academic standards.

The right to admit students being an essential facet of theright to administer educational institutions of their choice, ascontemplated under Article 30 of the Constitution, the State

Government or the university may not be entitled to interfere withthat right, so long as the admission to the unaided educationalinstitutions is on transparent basis and the merit is adequatelytaken care of. The right to administer, not being absolute, therecould be regulatory measures for ensuring educational standardsand maintaining excellence thereof, and it is more so in the matterof admissions to professional institutions.

Q.5. (a) Whether the minorities’s rights to establish and administereducational institutions of their choice will include the procedureand method of admission and selection of students?

A. minority institution may have its own procedure and methodof admission as well as selection of students, but such proceduremust be fair and transparent, and the selection of students inprofessional and higher education colleges should be on the basisof merit. The procedure adopted or selection made should not betantamount to maladministration. Even an unaided minorityinstitution ought not to ignore the merit of the students foradmission, while exercising its right to admit students to the collegesaforesaid, as in that event, the institution will fail to achieveexcellence.

Q.5.(b) ***

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

A. So far as the statutory provisions regulating the facets ofadministration are concerned, in case of an unaided minorityeducational institution, the regulatory measure of control should

be minimal and the conditions of recognition as well as theconditions of affiliation to university or board have to be compliedwith, but in the matter of day-to-day management, like theappointment of staff, teaching and non-teaching, and administrativecontrol over them, the management should have the freedom andthere should not be any external controlling agency. However, arational procedure for the selection of teaching staff and for takingdisciplinary action has to be evolved by the management itself.

For redressing the grievances of employees of aided andunaided institutions who are subjected to punishment or terminationfrom service, mechanism will have to be evolved, and in ouropinion, appropriate tribunals could be constituted, and till then,such tribunals could be presided over by judicial officer of therank of District Judge.

The State or other controlling authorities, however, canalways prescribe the minimum qualification, experience and otherconditions bearing on the merit of an individual for being appointedas teacher or principal of any educational institution.

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

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

(emphasis supplied)

In T.M.A. Pai Foundation (supra), the Court held that somesystem of computing equivalence between different kinds of qualificationslike common entrance test, would not be in violation of the rightsconferred.The unaided minority institutions under Article 30(1) of theConstitution of India have the right to admit students, but the merit maybe determined by common entrance test and the rights under Article30(1) is not absolute so as to prevent the Government from making anyregulations. The Government cannot be prevented from framingregulations that are in national interest. However, the safeguard is thatthe Government cannot discriminate any minority institution and put themin disadvantageous positionvis-à-vis to other educational institutionsand has to maintain the concept of equality in real sense. The minority

Ainstitutions must be allowed to do what non-minority institutions arepermitted.It is open to State/concerned bodies to frame regulations withrespect to affiliation and recognition, to provide proper academicatmosphere.While answering question no.4, it was held that theGovernment or the University can lay down the regulatory measuresensuring educational standards and maintaining excellence and more so,Bin the matter of admission to the professional institutions. It may notinterfere with the rights so long as the admissions to the unaided minorityinstitutions are on transparent basis and the merit is adequately takencare of.

28.In Brahmo Samaj Education Society v. State of WestCBengal, (2004) 6 SCC 224, the Court opined that State can impose suchconditions as are necessary for the proper maintenance of standards ofeducation and to check maladministration. The decision of T.M.A. PaiFoundation (supra) was followed in which it was observed that theState could regulate the method of selection and appointment of teachers

Dafter prescribing requisite qualifications for the same. In Brahmo SamajEducation Society (supra), it was further opined that the State couldvery well provide the basic qualification for teachers. The equal standardof teachers has been maintained by the NET / SLET.

29.This Court in P.A. Inamdar (supra) also considered theEdifference between professional and non-professional educationalinstitutions, thus:

“104. Article 30(1) speaks of “educational institutions” generallyand so does Article 29(2). These articles do not draw any distinctionbetween an educational institution dispensing theological educationFor professional or non-professional education. However, the terrainof thought as has developed through successive judicialpronouncements culminating in Pai Foundation, (2002) 8 SCC481, is that looking at the concept of education, in the backdrop ofthe constitutional provisions, professional educational institutionsconstitute class by themselves as distinguished from educationalGinstitutions imparting non-professional education. It is not necessaryfor us to go deep into this aspect of the issue posed before usinasmuch as Pai Foundation, (2002) 8 SCC 481, has clarifiedthat merit and excellence assume special significance in the contextof professional studies. Though merit and excellence are notanathema to non-professional education, yet at that level and due

to the nature of education which is more general, the need formerit and excellence therein is not of the degree as is called for inthe context of professional education.

105. Dealing with unaided minority educational institutions, PaiFoundation, (2002) 8 SCC 481, holds that Article 30 does notcome in the way of the State stepping in for the purpose of securingtransparency and recognition of merit in the matter of admissions.Regulatory measures for ensuring educational standards andmaintaining excellence thereof are no anathema to the protectionconferred by Article 30(1). However, distinction is to be drawnbetween unaided minority educational institution of the level ofschools and undergraduate colleges on the one side and institutionsof higher education, in particular, those imparting professionaleducation, on the other side. In the former, the scope for merit-based selection is practically nil and hence may not call forregulation. But in the case of the latter, transparency and merithave to be unavoidably taken care of and cannot be compromised.There could be regulatory measures for ensuring educationalstandards and maintaining excellence thereof. (See para 161,answer to Question 4, in Pai Foundation,(2002) 8 SCC 481.)The source of this distinction between two types of educationalinstitutions referred to hereinabove is to be found in the principlethat right to administer does not include right to maladminister.

106. S.B. Sinha, J. has, in his separate opinion in Islamic Academy,(2003) 6 SCC 697, described (in para 199) the situation as apyramid-like situation and suggested the right of minority to beread along with the fundamental duty. Higher the level of education,lesser are the seats and higher weighs the consideration for merit.It will, necessarily, call for more State intervention and lesser sayfor the minority.

107. Educational institutions imparting higher education i.e.graduate level and above and in particular specialised educationsuch as technical or professional, constitute separate class. Whileembarking upon resolving issues of constitutional significance,where the letter of the Constitution is not clear, we have to keepin view the spirit of the Constitution, as spelt out by its entirescheme. Education aimed at imparting professional or technicalqualifications stands on different footing from other educational

Ainstruction. Apart from other provisions, Article 19(6) is clearindicator and so are clauses (h) and (j) of Article 51-A. Educationup to the undergraduate level aims at imparting knowledge just toenrich the mind and shape the personality of student. Graduate-level study is doorway to admissions in educational institutionsimparting professional or technical or other higher education and,Btherefore, at that level, the considerations akin to those relevantfor professional or technical educational institutions step in andbecome relevant. This is in the national interest and strengtheningthe national wealth, education included. Education up to theundergraduate level on the one hand and education at the graduateCand postgraduate levels and in professional and technical institutionson the other are to be treated on different levels inviting not identicalconsiderations, is proposition not open to any more debate afterPai Foundation, (2002) 8 SCC 481. number of legislationsoccupying the field of education whose constitutional validity hasbeen tested and accepted suggest that while recognition orDaffiliation may not be must for education up to undergraduatelevel or, even if required, may be granted as matter of routine,recognition or affiliation is must and subject to rigorous scrutinywhen it comes to educational institutions awarding degrees,graduate or postgraduate, postgraduate diplomas and degrees inEtechnical or professional disciplines. Some such legislations arefound referred in paras 81 and 82 of S.B. Sinha, J.’s opinion inIslamic Academy, (2003) 6 SCC 697.”Dealing with unaided minority educational institutions in T.M.A.Pai Foundation (supra), the court observed that Article 30 does notFcome in the way of the State stepping in to secure transparency andrecognition of merit in the matter of admissions. Regulatory measuresfor ensuring educational standards can be framed. In the case ofprofessional education, transparency and merit have to be unavoidablytaken care of and cannot be compromised.

G30. In Sindhi Education Society and Anr. v. Chief Secretary,Government of NCT of Delhi and Ors., (2010) 8 SCC 49, the Courtopined that measures to regulate the courses of study, qualifications, andappointment of teachers, the conditions of employment are germane tothe affiliation of minority institutions. The Court held thus:

“47. Still another seven-Judge Bench of this Court, in AhmedabadSt. Xavier’s College Society, (1974) 1 SCC 717, was primarilyconcerned with the scope of Articles 29 and 30 of the Constitution,relating to the rights of minorities to impart general education andapplicability of the concept of affiliation to such institutions. Ofcourse, the Court held that there was no fundamental right of aminority institution to get affiliation from university. When aminority institution applies to university to be affiliated, it expressesits choice to participate in the system of general education andcourses of instructions prescribed by that university, and it agreesto follow the uniform courses of study. Therefore, measures whichwill regulate the courses of study, the qualifications and appointmentof teachers, the conditions of employment of teachers, the health,hygiene of students and the other facilities are germane to affiliationof minority institutions.

55. The respondents have placed reliance upon the law stated bythe Bench that any regulation framed in the national interest mustnecessarily apply to all educational institutions, whether run bymajority or the minority. Such limitation must be read into Article30. The rule under Article 30(1) cannot be such as to override thenational interest or to prevent the Government from framingregulations in that behalf. It is, of course, true that governmentregulations cannot destroy the minority character of the institutionor make right to establish and administer mere illusion; but theright under Article 30 is not so absolute as to be above the law.

56. The appellant also seeks to derive benefit from the view thatthe courts have also held that the right to administer is not absoluteand is subject to reasonable regulations for the benefit of theinstitutions as the vehicle of education consistent with the nationalinterest. Such general laws of the land would also be applicable tothe minority institutions as well. There is no reason why regulationsor conditions concerning generally the welfare of the studentsand teachers should not be made applicable in order to provide aproper academic atmosphere. As such, the provisions do not, inany way, interfere with the right of administration or managementunder Article 30(1). Any law, rule or regulation, that would put theeducational institutions run by the minorities at disadvantage,when compared to the institutions run by the others, will have to

be struck down. At the same time, there may not be any reversediscrimination.

92. The right under clause (1) of Article 30 is not absolute butsubject to reasonable restrictions which, inter alia, may be framedhaving regard to the public interest and national interest of thecountry. Regulation can also be framed to prevent maladministrationas well as for laying down standards of education, teaching,maintenance of discipline, public order, health, morality, etc. It isalso well settled that minority institution does not cease to be so,the moment grant-in-aid is received by the institution. An aidedminority educational institution, therefore, would be entitled to havethe right of admission of students belonging to the minority groupand, at the same time, would be required to admit reasonableextent of non-minority students, to the extent, that the right inArticle 30(1) is not substantially impaired and further, the citizen’sright under Article 29(2) is not infringed.”

In Chandana Das (Malakar) v. State of West Bengal and Ors.,(2015) 12 SCC 140, the Court observed that the Government can framethe conditions of eligibility for appointment of such teachers,thus:

“21. It is unnecessary to multiply decisions on the subject for thelegal position is well settled. Linguistic institution and religious areentitled to establish and administer their institutions. Such right ofadministration includes the right of appointing teachers of its choicebut does not denude the State of its power to frame regulationsthat may prescribe the conditions of eligibility for appointment ofsuch teachers. The regulations can also prescribe measures toensure that the institution is run efficiently for the right to administerdoes not include the right to maladministration. While grant-in-aidis not included in the guarantee contained in the Constitution tolinguistic and religious minorities for establishing and running theireducational institutions, such grant cannot be denied to suchinstitutions only because the institutions are established by linguisticor religious minority. Grant of aid cannot, however, be madesubservient to conditions which deprive the institution of theirsubstantive right of administering such institutions. Suffice it tosay that once Respondent 4 Institution is held to be minorityinstitution entitled to the protection of Articles 26 and 30 of theConstitution of India the right to appoint teachers of its choice

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATIONv. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

who satisfy the conditions of eligibility prescribed for suchappointments under the relevant rules is implicit in their rights toadminister such institutions. Such rights cannot then be diluted bythe State or its functionaries insisting that the appointment shouldbe made only with the approval of the Director or by followingthe mechanism generally prescribed for institutions that do notenjoy the minority status.”

31.In Modern Dental College and Research Centre (supra),the Constitution Bench of this Court considered the provisions of Articles19(1)(g), 19(6), 26 and 30 in relation to the right to freedom of occupationof private unaided minority and non-minority educational institutions. ThisCourt observed that the activity of education is neither trade norprofession, i.e., commercialisation and profiteering cannot be permitted.It is open to impose reasonable restrictions in the interest of generalpublic. The education cannot be allowed to be purely economic activity;it is welfare activity aimed at achieving more egalitarian and prosperoussociety to bring out social transformation and upliftment of the nation.(a) This Court further opined that private unaided minority andnon-minority institutions have right to occupation under Article 19(1),the said right is not absolute and subject to reasonable restriction in largerpublic interest of students community to promote merit, achieve excellenceand curb malpractices by holding common entrance test for admissionand fee structure can undoubtedly be regulated in such institutions.

(b) This Court in Modern Dental College and Research Centre(supra) also held that unless the admission procedure and fixation offees are regulated and controlled at the initial stage, the evil of unfairpractice of granting admission on available seats guided by the payingcapacity of the candidates would be impossible to curb. The Court alsonoted the menace of the fee prevailing in the various educationalprofessional institutions and in the context of Articles 19(1)(g), 19(6), 30,41and 47, and considering the Schedule VII, Entry 25 of List III andEntry 63-66 of List I, this Court held that concerning “professional unaidedminority” and “non-minority institutions”, common entrance test has tobe conducted by the State and regulation of the fee structure by it ispermissible. The Court took note of the large-scale malpractices,exploitation of students, profiteering, and commercialisation and entranceexamination held by various institutions failing the triple test of havingfair, transparent, and non-exploitative process. The Court held that

Areasonable restriction can be imposed to regulate admission and feestructure. The Court also observed about statutory functioning of thehealthcare system in the country and the poor functioning of the MCI.

(c) The Court further considered the criteria of proportionalityand emphasised for proper balance between the two facets viz. theBrights and limitations imposed upon it by statute. The concept ofproportionality is an appropriate criterion.The law imposing restrictionswill be treated as proportional if it is meant to achieve proper purpose.If the measures taken to achieve such goal are rationally connected tothe object, such steps are necessary. The Court considered the conceptof proportionality thus:C

“57. It is well settled that the right under Article 19(1)(g) is notabsolute in terms but is subject to reasonable restrictions underclause (6). Reasonableness has to be determined having regardto the nature of right alleged to be infringed, purpose of therestriction, extent of restriction and other relevant factors. Inapplying these factors, one cannot lose sight of the directiveprinciples of State policy. The Court has to try to strike justbalance between the fundamental rights and the larger interest ofthe society. The Court interferes with statute if it clearly violatesthe fundamental rights. The Court proceeds on the footing thatthe legislature understands the needs of the people. TheConstitution is primarily for the common man. Larger interest andwelfare of student community to promote merit, achieve excellenceand curb malpractices, fee and admissions can certainly beregulated.

58. Let us carry out this discussion in some more detail as this isthe central issue raised by the appellants.

Doctrine of proportionality explained and applied

59. Undoubtedly, the right to establish and manage the educationalinstitutions is fundamental right recognised under Article 19(1)(g)Gof the Act. It also cannot be denied that this right is not “absolute”and is subject to limitations i.e. “reasonable restrictions” that canbe imposed by law on the exercise of the rights that are conferredunder clause (1) of Article 19. Those restrictions, however, haveto be reasonable. Further, such restrictions should be “in the interestof general public”, which conditions are stipulated in clause (6) ofHArticle 19, as under:“19. (6) Nothing in sub-clause (g) of the said clause shallaffect the operation of any existing law insofar as it imposes, orprevent the State from making any law imposing, in the interestsof the general public, reasonable restrictions on the exercise ofthe right conferred by the said sub-clause, and, in particular, nothingin the said sub-clause shall affect the operation of any existinglaw insofar as it relates to, or prevent the State from making anylaw relating to—

(i) the professional or technical qualifications necessary forpractising any profession or carrying on any occupation, trade orbusiness, or

(ii) the carrying on by the State, or by corporation ownedor controlled by the State, of any trade, business, industry or service,whether to the exclusion, complete or partial, of citizens orotherwise.”

60. Another significant feature which can be noticed from thereading of the aforesaid clause is that the State is empowered tomake any law relating to the professional or technical qualificationsnecessary for practising any profession or carrying on anyoccupation or trade or business. Thus, while examining as towhether the impugned provisions of the statute and rules amountto reasonable restrictions and are brought out in the interest of thegeneral public, the exercise that is required to be undertaken isthe balancing of fundamental right to carry on occupation on theone hand and the restrictions imposed on the other hand. This iswhat is known as “doctrine of proportionality”. Jurisprudentially,“proportionality” can be defined as the set of rules determiningthe necessary and sufficient conditions for limitation of aconstitutionally protected right by law to be constitutionallypermissible. According to Aharon Barak (former Chief Justice,Supreme Court of Israel), there are four sub-components ofproportionality which need to be satisfied [Aharon Barak,Proportionality: Constitutional Rights and Their Limitation(Cambridge University Press 2012)], limitation of constitutionalright will be constitutionally permissible if:

(i) it is designated for proper purpose;

(ii) the measures undertaken to effectuate such limitationare rationally connected to the fulfilment of that purpose;

DEFG

(iii) the measures undertaken are necessary in that thereare no alternative measures that may similarly achieve that samepurpose with lesser degree of limitation; and finally

(iv) there needs to be proper relation (“proportionalitystrictosensu” or “balancing”) between the importance of achievingthe proper purpose and the social importance of preventing thelimitation on the constitutional right.

61. Modern theory of constitutional rights draws fundamentaldistinction between the scope of the constitutional rights, and theextent of its protection. Insofar as the scope of constitutional rightsis concerned, it marks the outer boundaries of the said rights anddefines its contents. The extent of its protection prescribes thelimitations on the exercises of the rights within its scope. In thatsense, it defines the justification for limitations that can be imposedon such right.

62. It is now almost accepted that there are no absoluteconstitutional rights and all such rights are related. As per theanalysis of Aharon Barak, two key elements in developing themodern constitutional theory of recognising positive constitutionalrights along with its limitations are the notions of democracy andthe rule of law. Thus, the requirement of proportional limitationsof constitutional rights by sub-constitutional law i.e. the statute,is derived from an interpretation of the notion of democracy itself.Insofar as the Indian Constitution is concerned, democracy istreated as the basic feature of the Constitution and is specificallyaccorded constitutional status that is recognised in the Preambleof the Constitution itself. It is also unerringly accepted that thisnotion of democracy includes human rights which is thecornerstone of Indian democracy. Once we accept the aforesaidtheory (and there cannot be any denial thereof), as fortiori, ithas also to be accepted that democracy is based on balancebetween constitutional rights and the public interests. In fact, sucha provision in Article 19 itself on the one hand guarantees somecertain freedoms in clause (1) of Article 19 and at the same timeempowers the State to impose reasonable restrictions on thosefreedoms in public interest. This notion accepts the modernconstitutional theory that the constitutional rights are related. Thisrelativity means that constitutional licence to limit those rights is

granted where such limitation will be justified to protect publicinterest or the rights of others. This phenomenon—of both theright and its limitation in the Constitution—exemplifies the inherenttension between democracy’s two fundamental elements. On theone hand is the right’s element, which constitutes fundamentalcomponent of substantive democracy; on the other hand is thepeople element, limiting those very rights through theirrepresentatives. These two constitute fundamental componentof the notion of democracy, though this time in its formal aspect.How can this tension be resolved? The answer is that this tensionis not resolved by eliminating the “losing” facet from theConstitution. Rather, the tension is resolved by way of properbalancing of the competing principles. This is one of the expressionsof the multi-faceted nature of democracy. Indeed, the inherenttension between democracy’s different facets is “constructivetension”. It enables each facet to develop while harmoniouslycoexisting with the others. The best way to achieve this peacefulcoexistence is through balancing between the competing interests.Such balancing enables each facet to develop alongside the otherfacets, not in their place. This tension between the twofundamental aspects—rights on the one hand and its limitation onthe other hand—is to be resolved by balancing the two so thatthey harmoniously coexist with each other. This balancing is to bedone keeping in mind the relative social values of each competitiveaspects when considered in proper context.63. In this direction, the next question that arises is as to whatcriteria is to be adopted for proper balance between the twofacets viz. the rights and limitations imposed upon it by statute.Here comes the concept of “proportionality”, which is propercriterion. To put it pithily, when law limits constitutional right,such limitation is constitutional if it is proportional. The lawimposing restrictions will be treated as proportional if it is meantto achieve proper purpose, and if the measures taken to achievesuch purpose are rationally connected to the purpose, and suchmeasures are necessary. This essence of doctrine of proportionalityis beautifully captured by Dickson, C.J. of Canada in R. v. Oakes,(1986) 1 SCR 103 (Can SC) in the following words (at p. 138):

“To establish that limit is reasonable and demonstrably justifiedin free and democratic society, two central criteria must be

satisfied. First, the objective, which the measures, responsiblefor limit on Charter right or freedom are designed to serve,must be “of” sufficient importance to warrant overriding aconstitutional protected right or freedom … Second … the partyinvoking Section 1 must show that the means chosen arereasonable and demonstrably justified. This involves “a formof proportionality test…” Although the nature of theproportionality test will vary depending on the circumstances,in each case courts will be required to balance the interests ofsociety with those of individuals and groups. There are, in myview, three important components of proportionality test. First,the measures adopted must be … rationally connected to theobjective. Second, the means … should impair “as little aspossible” the right or freedom in question … Third, there mustbe proportionality between the effects of the measures whichare responsible for limiting the Charter right or freedom, andthe objective which has been identified as of “sufficientimportance”. The more severe the deleterious effects of ameasure, the more important the objective must be if themeasure is to be reasonable and demonstrably justified in afree and democratic society.”

64. The exercise which, therefore, is to be taken is to find out asto whether the limitation of constitutional rights is for purposethat is reasonable and necessary in democratic society and suchan exercise involves the weighing up of competitive values, andultimately an assessment based on proportionality i.e. balancingof different interests.”

(d) In Modern Dental College and Research Centre (supra),the Court, while dealing with reasonable restriction on rights under Article19 observed:

“65. We may unhesitatingly remark that this doctrine ofproportionality, explained hereinabove in brief, is enshrined in Article19 itself when we read clause (1) along with clause (6) thereof.While defining as to what constitutes reasonable restriction, thisCourt in plethora of judgments has held that the expression“reasonable restriction” seeks to strike balance between thefreedom guaranteed by any of the sub-clauses of clause (1) of

Article 19 and the social control permitted by any of the clauses(2) to (6). It is held that the expression “reasonable” connotesthat the limitation imposed on person in the enjoyment of theright should not be arbitrary or of an excessive nature beyondwhat is required in the interests of public. Further, in order to bereasonable, the restriction must have reasonable relation to theobject which the legislation seeks to achieve, and must not go inexcess of that object (see P.P. Enterprises v. Union of India,(1982) 2 SCC 33). At the same time, reasonableness of restrictionhas to be determined in an objective manner and from thestandpoint of the interests of the general public and not from thepoint of view of the persons upon whom the restrictions are imposedor upon abstract considerations (see Mohd. Hanif Quareshi v.State of Bihar, AIR 1958 SC 731). In M.R.F. Ltd. v. State ofKerala, (1998) 8 SCC 227, this Court held that in examining thereasonableness of statutory provision one has to keep in mindthe following factors:

(1) The directive principles of State policy.

(2) Restrictions must not be arbitrary or of an excessivenature so as to go beyond the requirement of the interest of thegeneral public.

(3) In order to judge the reasonableness of the restrictions,no abstract or general pattern or fixed principle can be laiddown so as to be of universal application and the same will varyfrom case to case as also with regard to changing conditions,values of human life, social philosophy of the Constitution, prevailingconditions and the surrounding circumstances.

(4) just balance has to be struck between the restrictionsimposed and the social control envisaged by Article 19(6).

(5) Prevailing social values as also social needs which areintended to be satisfied by the restrictions.

(6) There must be direct and proximate nexus orreasonable connection between the restrictions imposed and theobject sought to be achieved. If there is direct nexus betweenthe restrictions, and the object of the Act, then strong presumptionin favour of the constitutionality of the Act will naturally arise.”

(e) Concerning necessity of regulatory framework, the Courtopined:

“85. No doubt, we have entered into an era of liberalisation of theeconomy, famously termed as “globalisation” as well. In such aneconomy, private players are undoubtedly given much morefreedom in economic activities, as the recognition has drawn tothe realities that the economic activities, including profession,business, occupation, etc. are not normal forte of the State andthe State should have minimal role therein. It is for this reason,many sectors which were hitherto State monopolies, like telecom,power, insurance, civil aviation, etc. have now opened up for privateenterprise. Even in the field of education the State/Governmentwas playing dominant role inasmuch as it was thought desirablethat in welfare State it is the fundamental duty, as componentof directive principles, to impart education to the masses andcommoners as well as weaker sections of the society, at affordablerates. It was almost treated as solemn duty of the Government toestablish adequate number of educational institutions at all levelsi.e. from primary level to higher education and in all fields includingtechnical, scientific and professional, to cater to the varied sectionsof the society, particularly, when one-third of the population of thecountry is poverty-stricken with large percentage as illiterate. Withliberalisation, the Government has encouraged establishments ofprivately managed institutions. It is done with the hope that theprivate sector will play vital role in the field of education withphilanthropic approach/ideals in mind as this activity is not to betaken for the purpose of profiteering, but more as societalwelfare.

86. It is, therefore, to be borne in mind that the occupation ofeducation cannot be treated on par with other economicactivities. In this field, the State cannot remain mute spectatorand has to necessarily step in in order to prevent exploitation,privatisation and commercialisation by the private sector. It wouldbe pertinent to mention that even in respect of those economicactivities which are undertaken by the private sector essentiallywith the objective of profit-making (and there is nothing bad aboutit), while throwing open such kind of business activities in thehands of private sector, the State has introduced regulatory regimeas well by providing regulations under the relevant statutes.

89. With the advent of globalisation and liberalisation, though themarket economy is restored, at the same time, it is also felt thatmarket economies should not exist in pure form. Some regulationof the various industries is required rather than allowing self-regulation by market forces. This intervention through regulatorybodies, particularly in pricing, is considered necessary for thewelfare of the society and the economists point out that suchregulatory economy does not rob the character of marketeconomy which still remains market economy. Justification forregulatory bodies even in such industries managed by privatesector lies in the welfare of people. Regulatory measures are feltnecessary to promote basic well being for individuals in need. It isbecause of this reason that we find regulatory bodies in all vitalindustries like, insurance, electricity and power,telecommunications, etc.90. Thus, it is felt that in any welfare economy, even for privateindustries, there is need for regulatory body and such regulatoryframework for education sector becomes all the more necessary.It would be more so when, unlike other industries,commercialisation of education is not permitted as mandated bythe Constitution of India, backed by various judgments of this Courtto the effect that profiteering in the education is to be avoided.”

(f) The Court heldthat the regulatory mechanism for centralisedexamination is legal and constitutional and does not infringe on thefundamental rights of the minority or non-minority to establish andadminister educational institutions. It observed:

“57. It is well settled that the right under Article 19(1)(g) is notabsolute in terms but is subject to reasonable restrictions underclause (6). Reasonableness has to be determined having regardto the nature of right alleged to be infringed, purpose of therestriction, extent of restriction and other relevant factors. Inapplying these factors, one cannot lose sight of the directiveprinciples of State policy. The Court has to try to strike justbalance between the fundamental rights and the larger interest ofthe society. The Court interferes with statute if it clearly violatesthe fundamental rights. The Court proceeds on the footing thatthe legislature understands the needs of the people. TheConstitution is primarily for the common man. Larger interest and

welfare of student community to promote merit, achieve excellenceand curb malpractices, fee and admissions can certainly beregulated.

“97. The very object of setting up institutions for the State is awelfare function, for the purpose of excelling in educationalstandards. On the other hand, the primary motivation for privateparties is profit motive or philanthropy. When the primarymotivation for institutions is profit motive, it is natural that manymeans to achieve the same shall be adopted by the privateinstitutions which leads to large degree of secrecy and corruption.As such, the mechanism of regulations as envisaged under theimpugned laws is legal, constitutional, fair, transparent and upholdthe primary criteria of merit. The same does not infringe on thefundamental rights of either the minorities or the non-minorities toestablish and administer educational institutions and must as suchbe upheld as valid.”

(g) The Court also took note of prevailing situation of corruptionin the field of education and commercialisation of education thus:

“68. We are of the view that the larger public interest warrantssuch measure. Having regard to the malpractices which arenoticed in the CET conducted by such private institutionsthemselves, for which plethora of material is produced, it is,undoubtedly, in the larger interest and welfare of the studentcommunity to promote merit, add excellence and curbmalpractices. The extent of restriction has to be viewed keepingin view all these factors and, therefore, we feel that the impugnedprovisions which may amount to “restrictions” on the right of theappellants to carry on their “occupation”, are clearly “reasonable”and satisfied the test of proportionality.”

86. It is, therefore, to be borne in mind that the occupation ofeducation cannot be treated on par with other economicactivities. In this field, the State cannot remain mute spectatorand has to necessarily step in in order to prevent exploitation,privatisation and commercialisation by the private sector. It wouldbe pertinent to mention that even in respect of those economicactivities which are undertaken by the private sector essentiallywith the objective of profit-making (and there is nothing bad about

it), while throwing open such kind of business activities in thehands of private sector, the State has introduced regulatory regimeas well by providing regulations under the relevant statutes.

96. As is evident from the facts mentioned by the State of MadhyaPradesh in its reply filed in IA No. 83 of 2015, the Association ofPrivate Colleges has failed to hold their CETs in fair, transparentand rational manner. The accountability and transparency in Stateactions is much higher than in private actions. It is needless to saythat the incidents of corruption in the State machinery were broughtin the public eye immediately and have been addressedexpeditiously. The same could never have been done in case ofprivate actions. Even on keel of comparative efficiency, it ismore than evident that the State process is far more transparentand fair than one that is devised by the private colleges whichhave no mechanism of any checks and balances. The Stateagencies are subject to the Right to Information Act, audit, StateLegislature, anti-corruption agencies, Lokayukta, etc.

172. Maintenance and improvement of public health and to providehealth care and medical services is the constitutional obligation ofthe State. To discharge this constitutional obligation, the State musthave the doctors with professional excellence and commitmentwho are ready to give medical advice and services to the public atlarge. The State can satisfactorily discharge its constitutionalobligation only when the aspiring students enter into the professionbased on merit. None of these lofty ideals can be achieved withouthaving good and committed medical professionals.

190. For the foregoing discussion, I hold that the State has thelegislative competence to enact the impugned legislation—the 2007Act to hold common entrance test for admission to professionaleducational institutions and to determine the fee and the HighCourt has rightly upheld the validity of the impugned legislation.Regulations sought to be imposed by the impugned legislation onadmission by common entrance test conducted by the State anddetermination of fee are in compliance of the directions andobservations in T.M.A. Pai, (2002) 8 SCC 481, Islamic Academyof Education, (2003) 6 SCC 697 and P.A. Inamdar, (2005) 6SCC 537. Regulations on admission process are necessary in thelarger public interest and welfare of the student community to

ensure fairness and transparency in the admission and to promotemerit and excellence. Regulation on fixation of fee is to protectthe rights of the students in having access to higher educationwithout being subjected to exploitation in the form of profiteering.With the above reasonings, I concur with the majority view inupholding the validity of the impugned legislation and affirm thewell-merited decision of the High Court.”

(h) The Court in Modern Dental College and Research Centre(supra) while considering the decision in T.M.A. Pai Foundation (supra)opined that Court did not give complete freedom to admit the studentsand also as to fixation of fee. Admission has to be based on merit,particularly in professional educational institutions. This Court observedthus:

“34. In the modern age, therefore, particularly after the policy ofliberalisation adopted by the State, educational institutions by privatebodies are allowed to be established. There is paradigm shiftover from the era of complete government control over education(like other economic and commercial activities) to situationwhere private players are allowed to mushroom. But at the sametime, regulatory mechanism is provided thereby ensuring that suchprivate institutions work within such regulatory regime. When itcomes to education, it is expected that unaided private institutionsprovide quality education and at the same time they are given“freedom in joints” with minimal Government interference, exceptwhat comes under regulatory regime. Though education is nowtreated as an “occupation” and, thus, has become fundamentalright guaranteed under Article 19(1)(g) of the Constitution, at thesame time shackles are put insofar as this particular occupation isconcerned which is termed as “noble”. Therefore, profiteeringand commercialisation are not permitted and no capitation feecan be charged. The admission of students has to be on merit andnot at the whims and fancies of the educational institutions. Meritcan be tested by adopting some methodology and few such methodsare suggested in T.M.A. Pai Foundation, (2002) 8 SCC 481,which includes holding of CET. It is to be ensured that thisadmission process meets the triple test of transparency, fairnessand non-exploitativeness.

37. Insofar as the first part of the question is concerned, it doesnot pose any problem and the answer goes in favour of theappellants. We may recapitulate here that Article 26 of theConstitution gives freedom to every religious denomination or anysection thereof by conferring certain rights which include right toestablish and maintain institutions for religious and charitablepurposes. Thus, insofar as religious denominations or any sectionthereof are concerned, they were given right to establish andmaintain institutions for religious and charitable purposes makingit fundamental right. Likewise, Article 30 confers upon minoritiesfundamental right to establish and administer educationalinstitutions. Insofar as Article 26 is concerned, it comes under thecaption “Right to Freedom of Religion”. As far as Article 30 isconcerned, it is under the heading “Cultural and EducationalRights”. Thus, rights of the minorities to establish and administereducational institutions were always recognised as fundamentalrights. Further, the right of private unaided professional institutionsto establish and manage educational institutions was not clearlyrecognised as fundamental right covered under Article 19(1)(g)and categorically rejected by the Constitution Bench of this Courtcomprising of five Judges in Unni Krishnan, (1993) 1 SCC 645.It was held in para 198 of the judgment that: (SCC p. 752)

“198. [w]e are, therefore, of the opinion, adopting the line ofreasoning in State of Bombay v. R.M.D. Chamarbaugwala,AIR 1957 SC 699, that imparting education cannot be treatedas trade or business. Education cannot be allowed to beconverted into commerce nor can petitioners seek to obtainthe said result by relying upon the wider meaning of“occupation”.”

38. In Unni Krishnan case, (1993) 1 SCC 645, this Court alsorejected the argument that the said activity could be classified as a“profession”. However, the right of professional institutions to establishand manage educational institutions was finally regarded as an“occupation” befitting the recognition of this right as fundamentalright under Article 19(1)(g) in T.M.A. Pai Foundation, (2002) 8 SCC481, in the following words: (SCC p. 535, para 25)

“25. The establishment and running of an educational institutionwhere large number of persons are employed as teachers or

administrative staff, and an activity is carried on that results inthe imparting of knowledge to the students, must necessarilybe regarded as an occupation, even if there is no element ofprofit generation. It is difficult to comprehend that education,per se, will not fall under any of the four expressions in Article19(1)(g). “Occupation” would be an activity of personundertaken as means of livelihood or mission in life. Theabovequoted observations in Sodan Singh case, (1989) 4 SCC155, correctly interpret the expression “occupation” in Article19(1)(g).”

40. It becomes necessary to point out that while treating themanaging of educational institution as an “occupation”, the Courtwas categorical that this activity could not be treated as “business”or “profession”. This right to carry on the occupation thateducation is, the same is not put on par with other occupationsor business activities or even other professions. It is categoryapart which was carved out by this Court in T.M.A. PaiFoundation, (2002) 8 SCC 481. There was specific purposefor not doing so. Education is treated as noble “occupation” on“no profit no loss” basis. Thus, those who establish and aremanaging the educational institutions are not expected to indulgein profiteering or commercialising this noble activity. Keeping thisobjective in mind, the Court did not give complete freedom to theeducational institutions in respect of right to admit the studentsand also with regard to fixation of fee. As far as admission ofstudents is concerned, the Court was categorical that suchadmissions have to be on the basis of merit when it comes tohigher education, particularly in professional institutions.”

(i) In Modern Dental College and Research Centre (supra),the Court considered decision in T.M.A. Pai Foundation (supra), andobserved that Government is permitted to frame regulations for unaidedprivate professional educational institutions, thus:

“42. In order to see that merit is adjudged suitably andappropriately, the Court candidly laid down that the procedure foradmission should be so devised which satisfies the triple test ofbeing fair, transparent and non-exploitative. The next question wasas to how the aforesaid objective could be achieved? Fordetermining such merit, the Court showed the path in para 59 by

observing that such merit should be determined either by the marksthat students obtained at qualifying examination or at CETconducted by the institutions or in the case of professional colleges,by government agencies. Para 59 suggesting these modes readsas under: (T.M.A. Pai Foundation case,(2002) 8 SCC 481, SCCp. 546)

“59. Merit is usually determined, for admission to professionaland higher education colleges, by either the marks that thestudent obtains at the qualifying examination or school leavingcertificate stage followed by the interview, or by commonentrance test conducted by the institution, or in the case ofprofessional colleges, by government agencies.”

This paragraph very specifically authorises CET to be conductedby government agencies in the case of professional colleges.

43. In order to ensure that the said CET is fair, transparent andmerit-based, T.M.A. Pai Foundation, (2002) 8 SCC 481, alsopermitted the Government to frame regulations for unaided privateprofessional educational institutions. Paras 67 and 68 which permitframing of such regulations are reproduced below: (SCC p. 549)

“67. We now come to the regulations that can be framedrelating to private unaided professional institutions.

68. It would be unfair to apply the same rules and regulationsregulating admission to both aided and unaided professionalinstitutions. It must be borne in mind that unaided professionalinstitutions are entitled to autonomy in their administration while,at the same time, they do not forego or discard the principle ofmerit. It would, therefore, be permissible for the university orthe Government, at the time of granting recognition, to requirea private unaided institution to provide for merit-based selectionwhile, at the same time, giving the management sufficientdiscretion in admitting students. This can be done through variousmethods. For instance, certain percentage of the seats canbe reserved for admission by the management out of thosestudents who have passed the common entrance test held byitself or by the State/university and have applied to the collegeconcerned for admission, while the rest of the seats may befilled up on the basis of counselling by the State agency. This

will incidentally take care of poorer and backward sections ofthe society. The prescription of percentage for this purposehas to be done by the Government according to the local needsand different percentages can be fixed for minority unaidedand non-minority unaided and professional colleges. The sameprinciples may be applied to other non-professional but unaidededucational institutions viz. graduation and postgraduation non-professional colleges or institutes.”

44. plea was raised by the appellants that by exercising thepower to frame regulations, the State could not usurp the veryfunction of conducting this admission test by the educationalinstitutions. It was argued that it only meant that such CET is tobe conducted by the educational institutions themselves and theGovernment could only frame the regulations to regulate suchadmission tests to be conducted by the educational institutionsand could not take away the function of holding CET.

45. This argument has to be rejected in view of the unambiguousand categorical interpretation given by the Supreme Court in P.A.Inamdar, (2005) 6 SCC 537, with respect to certain observations,particularly in para 68 in T.M.A. Pai Foundation, (2002) 8 SCC481. In this behalf, we would like to recapitulate that in T.M.A.Pai Foundation, (2002) 8 SCC 481, Bench of eleven Judgesdealt with the issues of scope of right to set up educationalinstitutions by private aided or unaided, minority or non-minorityinstitutions and the extent of government regulation of the saidright. It was held that the right to establish and administer aninstitution included the right to admit students and to set up areasonable fee structure. But the said right could be regulated toensure maintenance of proper academic standards, atmosphereand infrastructure. Fixing of rigid fee structure, dictating theformation and composition of governing body, compulsorynomination of teachers and staff for appointment or nominatingstudents for admissions would be unacceptable restrictions.However, occupation of education was not business but professioninvolving charitable activity. The State can forbid charging ofcapitation fee and profiteering. The object of setting up educationalinstitution is not to make profit. There could, however, be areasonable revenue surplus for development of education. For

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATIONv. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

admission, merit must play an important role. The State or theUniversity could require private unaided institution to provide formerit-based selection while giving sufficient discretion in admittingstudents. Certain percentage of seats could be reserved foradmission by management out of students who have passed CETheld by the institution or by the State/University. Interpretation ofcertain observations in para 68 of the judgment in T.M.A. PaiFoundation, (2002) 8 SCC 481, has been matter of debate towhich we will advert to in detail hereinafter.

48. The matter was then considered by larger Bench of sevenJudges in P.A. Inamdar, (2005) 6 SCC 537. It was held that thetwo committees for monitoring admission procedure anddetermining fee structure as per the judgment in Islamic Academyof Education, (2003) 6 SCC 697, were permissible as regulatorymeasures aimed at protecting the student community as wholeas also the minority themselves in maintaining required standardsof professional education on non-exploitative terms. This did notviolate Article 30(1) or Article 19(1)(g). It was observed that:(P.A. Inamdar case, (2005) 6 SCC 537, SCC p. 607, para 145)

“145. … Unless the admission procedure and fixation offees is regulated and controlled at the initial stage, the evilof unfair practice of granting admission on available seatsguided by the paying capacity of the candidates would beimpossible to curb.”

(emphasis supplied)

On this ground, suggestion of the institutions to achieve the purposefor which committees had been set up by post-audit checks afterthe institutions adopted their own admission procedure and feestructure was rejected. The committees were, thus, allowed tocontinue for regulating the admissions and the fee structure untila suitable legislation or regulations were framed by the States. Itwas left to the Central Government and the State Governmentsto come out with detailed well-thought out legislation setting upa suitable mechanism for regulating admission procedure and feestructure. Para 68 in T.M.A. Pai Foundation case, (2002) 8 SCC481, was explained by stating that observations permitting themanagement to reserve certain seats were meant for poorer and

backward sections as per local needs. It did not mean to ignorethe merit. It was also held that CET could be held, otherwise,merit becomes casualty. There is, thus, no bar to CET beingheld by State agency when the law so provides.”

(j) The Court held that entrance examination is regulatoryBmeasure and does not infringe on the rights of the institutions. It opined:

“49. Thus, the contention raised on behalf of the appellants thatthe private medical colleges had absolute right to make admissionsor to fix fee is not consistent with the earlier decisions of thisCourt. Neither merit could be compromised in admissions toprofessional institutions nor capitation fee could be permitted. Toachieve these objects it is open to the State to introduce regulatorymeasures. We are unable to accept the submission that the Statecould intervene only after proving that merit was compromised orcapitation fee was being charged. As observed in the earlierdecisions of this Court, post-audit measures would not meet theregulatory requirements. Control was required at the initial stageitself. Therefore, our answer to the first question is that though“occupation” is fundamental right, which gives right to theeducational institutions to admit the students and also fix the fee,at the same time, scope of such rights has been discussed andlimitations imposed thereupon by the aforesaid judgmentsthemselves explaining the nature of limitations on these rights.

55. It would be necessary to clarify the position in respect ofeducational institutions run by minorities. Having regard to thepronouncement in T.M.A. Pai Foundation, (2002) 8 SCC 481,with lucid clarifications to the said judgment given by this Court inP.A. Inamdar, (2005) 6 SCC 537, it becomes clear that insofar assuch regulatory measures are concerned, the same can be adoptedby the State in respect of minority-run institutions as well. Relianceplaced by the appellants in St. Stephen’s College v. Universityof Delhi, (1992) 1 SCC 558, may not be of much help as thatcase did not concern with professional educational institutions.

67. Undoubtedly, right to establish and administer educationalinstitutions is treated as fundamental right as it is termed“occupation”, which is one of the freedoms guaranteed underArticle 19(1)(g). It was so recognised for the first time in T.M.A.

Pai Foundation, (2002) 8 SCC 481. Even while doing so, thisright came with certain clutches and shackles. The Court made itclear that it is noble occupation which would not permitcommercialisation or profiteering and, therefore, such educationalinstitutions are to be run on “no profit no loss basis”. Whileexplaining the scope of this right, right to admit students and rightto fix fee was accepted as facets of this right, the Court againadded caution thereto by mandating that admissions to theeducational institutions imparting higher education, and in particularprofessional education, have to admit the students based on merit.For judging the merit, the Court indicated that there can be aCET. While doing so, it also specifically stated that in case ofadmission to professional courses such CET can be conductedby the State. If such power is exercised by the State assumingthe function of CET, this was so recognised in T.M.A. PaiFoundation, (2002) 8 SCC 481 itself, as measure of“reasonable restriction on the said right”. Islamic Academyof Education, (2003) 6 SCC 697, further clarified the contour ofsuch function of the State while interpreting T.M.A. PaiFoundation, (2002) 8 SCC 481,itself wherein it was held thatthere can be committees constituted to supervise conducting ofsuch CET. This process of interpretative balancing andconstitutional balancing was remarkably achieved in P.A. Inamdar,(2005) 6 SCC 537, by not only giving its premature to deholding(sic imprimatur to the holding) of CET but it went further to holdthat agency conducting the CET must be the one which enjoysthe utmost credibility and expertise in the matter to achievefulfilment of twin objectives of transparency and merit and forthat purpose it permitted the State to provide procedure of holdinga CET in the interest of securing fair and merit-based admissionsand preventing maladministration.”

This Court also considered the balancing of rights even if there isa violation of fundamental rights of the appellants to admit students byCentral Examination Test by State. It held as under:

“92. In this sense, when imparting of quality education to cross-section of the society, particularly, the weaker section and whensuch private educational institutions are to rub shoulders with theState managed educational institution to meet the challenge of the

Aimplementing ambitious constitutional promises, the matter is tobe examined in different hue. It is this spirit which we have keptin mind while balancing the right of these educational institutionsgiven to them under Article 19(1)(g) on the one hand andreasonableness of the restrictions which have been imposed bythe impugned legislation. The right to admission or right to fix theBfee guaranteed to these appellants is not taken away completely,as feared. T.M.A. Pai Foundation, (2002) 8 SCC 481, givesautonomy to such institutions which remains intact. Holding ofCET under the control of the State does not impinge on thisautonomy. Admission is still in the hands of these institutions. OnceCit is even conceded by the appellants that in admission of students“triple test” is to be met, the impugned legislation aims at that.After all, the sole purpose of holding CET is to adjudge merit andto ensure that admissions which are done by the educationalinstitutions, are strictly on merit. This is again to ensure largerpublic interest. It is beyond comprehension that merely by assumingDthe power to hold CET, fundamental right of the appellants toadmit the students is taken away. Likewise, when it comes tofixation of fee, as already dealt with in detail, the main purpose isthat the State acts as regulator and satisfies itself that the feewhich is proposed by the educational institution does not have theEelement of profiteering and also that no capitation fee, etc. ischarged. In fact, this dual function of regulatory nature is going toadvance the public interest inasmuch as those students who areotherwise meritorious but are not in position to meet unreasonabledemands of capitation fee, etc. are not deprived of gettingadmissions. The impugned provisions, therefore, are aimed atFseeking laudable objectives in larger public interest. Law is notstatic, it has to change with changing times and changing social/societal conditions.”

(k) The Court held that MCI Actand the rules prescribed reasonablerestrictions under Article 19(6),thus:

“53. After referring to paras 136 and 137 in P.A. Inamdar, (2005)6 SCC 537, it was observed: (Assn. of Private Dental case, 2009SCC OnLine MP 760, SCC OnLine MP paras 34 & 37)

“34. It will be thus clear from paras 136 and 137 of the judgmentin P.A. Inamdar, (2005) 6 SCC 537, quoted above, that

admissions to private unaided professional educationalinstitutions can be made on the basis of merit of candidatesdetermined in the common entrance test followed by centralisedcounselling by the institutions imparting same or similarprofessional education together or by the State or by an agencywhich must enjoy utmost credibility and expertise and that thecommon entrance test followed by centralised counselling mustsatisfy the triple test of being fair, transparent and non-exploitative. Thus, the judgments of the Supreme Court in T.M.A.Pai Foundation, (2002) 8 SCC 481 and P.A. Inamdar, (2005)6 SCC 537, permit holding of common entrance test fordetermination of merit for admission to private unaidedprofessional educational institutions by the State as well asany agency which enjoy utmost credibility and expertise in thematter and which should ensure transparency in merit.

37. Sections 3(d), 6 and 7 of the 2007 Act by providing thatthe common entrance test for determining merit for admissionsin the private unaided professional educational institutions by acommon entrance test to be conducted by the State or by anagency authorised by the State do not interfere with theautonomy of private unaided professional educationalinstitutions, as such private professional educational institutionsare entitled to collect the fees from the students admitted tothe institutions on the basis of merit, appoint their own staff(teaching and non-teaching), discipline and remove the staff,provide infrastructure and other facilities for students and doall such other things as are necessary to impart professionaleducation to the students. Sections 3(d), 6 and 7 of the 2007Act, therefore, do not impinge on the fundamental right to carryon the occupation of establishing and administering professionaleducational institutions as an occupation. The only purpose ofSections 3(d), 6 and 7 of the 2007 Act is to ensure that studentsof excellence are selected on the basis of common entrancetest conducted by the State or an agency authorised by theState and that students without excellence and merit do notmake entry into these professional educational institutionsthrough malpractices and influence. As has been held both in

Athe judgments in T.M.A. Pai Foundation, (2002) 8 SCC 481and P.A. Inamdar, (2005) 6 SCC 537, the right of private unaidedprofessional educational institutions to admit students of theirchoice is subject to selection of students on the basis of theirmerit through transparent, fair and non-exploitative procedure.In our considered opinion therefore, Sections 3(d), 6 and 7 ofBthe 2007 Act do not in any way violate the fundamental rightof citizens guaranteed under Article 19(1)(g) of the Constitution.In view of this conclusion, it is not necessary for us to decidewhether the provisions of Sections 3(d), 6 and 7 of the 2007Act are saved by Article 15(5) of the Constitution or by theCsecond limb of Article 19(6) of the Constitution relating to thepower of the State to make law for creation of monopoly inits favour in respect of any service.””

32.In Sankalp Charitable Trust (supra), various orders passedby this Court on different dates have been reported. This Court notedDthat NEET has been restored by judgment dated 11.4.2016 by which thejudgment and order in Christian Medical College, Velloreand otherswas recalled. The respondents were directed to hold examination foradmission to MBBS and BDS courses for the academic year 2016-17.The Court passed following order dated 28.4.2016:

“10. In view of the submissions made on behalf of the respondents,we record that NEET shall be held as stated by the respondents.We further clarify that notwithstanding any order passed by anycourt earlier with regard to not holding NEET, this order shalloperate. Therefore, no further order is required to be passed atthis stage.

11. It may be mentioned here that some learned counselrepresenting those who are not parties to this petition have madesubmissions that in view of the judgment passed in ChristianMedical College, Vellore v. Union of India, it would not beproper to hold NEET and this order should not affect pendingGmatters.

12. We do not agree with the first submission for the reason thatthe said judgment has already been recalled on 11-4-2016 andtherefore, the Notifications dated 21-12-2010 are in operation ason today.”

On 6.5.2016, the Court directed that no examination shall bepermitted to be held for admission to MBBS or BDS studies by anyprivate college or association or any private/deemed university. Relevantportion is extracted hereunder:

“23. In view of the request made by the learned Solicitor General,hearing is adjourned to 9-5-2016. However, it is clarified that noexamination shall be permitted to be held for admission to MBBSor BDS studies by any private college or association or any private/deemed university.

24. The issue with regard to those students, who had appeared orwho are due to appear in examinations conducted by the States inaccordance with their State laws, shall be decided after hearingthe learned Solicitor General.”

On 9.5.2016, in the aforesaid matter, the Court considered variousapplications filed by private medical colleges seeking clarification of orderdated 28.4.2016. This Court directed as under:

“29. Medical Council of India (MCI) and Dental Council of India(DCI) issued Notifications dated 21-12-2010, amending theexisting statutory regulations to provide for single NationalEligibility-cum-Entrance Test (NEET) for admission to the MBBS/BDS course. The said Notifications were struck down in ChristianMedical College, Vellore v. Union of India, (2014) 2 SCC 305.The said judgment stands recalled vide order dated 11-4-2016 inMedical Council of India v. Christian Medical College, Vellore,(2016) 4 SCC 342.

32. In recent Constitution Bench judgment dated 2-5-2016, inModern Dental College & Research Centre v. State of M.P.,(2016) 7 SCC 353, the stand of the private medical colleges(including minorities) that conducting of entrance test by the Stateviolated the right of autonomy of the said colleges, has beenrejected. The State law providing for conducting of entrance testwas upheld, rejecting the contention that the State had no legislativecompetence on the subject. At the same time, it was held that theadmission involved two aspects. First, the adoption of setting upof minimum standards of education and coordination of suchstandards which aspect was covered exclusively by List I Entry66. The second aspect is with regard to implementation of the

said standards which was covered by List III Entry 25. On thesaid aspect, the State could also legislate. The two entries overlapto some extent and to that extent List I Entry 66 prevailed overthe subject covered by Entry 25.

33. Prima facie, we do not find any infirmity in the NEET regulationon the ground that it affects the rights of the States or the privateinstitutions. Special provisions for reservation of any category arenot subject-matter of NEET nor are the rights of minority in anymanner affected by NEET. NEET only provides for conductingentrance test for eligibility for admission to the MBBS/BDS course.

34. We thus, do not find any merit in the applications seekingmodification of the order dated 28-4-2016.”

33.In JainarayanChouksey(supra), the Court followed thedecision in Modern Dental College and Research Centre (supra) andopined that the said decision encompasses not only the State-conductedDcentralised test but also State-conducted centralised counselling. ThisCourt issued mandate for both the purposes, i.e., examination as wellas counselling and held:

“5. We have heard the learned counsel for the parties at length.We observe that mandate of our judgment was to hold centralisedEentrance test followed by centralised State counselling by the Stateto make it one composite process. We, therefore, direct thatadmission to all medical seats shall be conducted by centralisedcounselling only by the State Government and none else.

6. If any counselling has been done by any college or universityFand any admission to any medical seat has been given so far, suchadmission shall stand cancelled forthwith and admission shall begiven only as per centralised counselling done by the StateGovernment.”

34.In D.Y. Patil Vidyapeeth (supra), the Court again clarifiedthat the decision in Modern Dental College and Research CentreG(supra) encompasses not only centralised State-conducted test but alsocentralised State-conducted counselling.

35.The MCI amended vide notification dated 10.3.2017 theRegulation on Graduate Medical Education, 1997 and Post GraduateMedical Education Regulations, 2000 providing for common counsellingH

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATIONv. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

for admission to MBBS and post-graduate medicine courses on the basisof NEET. The said notifications were challenged by minority institutions,deemed universities, and other private institutions by filing writ petitionbefore this Court. The Court vide order dated 9.5.2017 in Dar-us-SalamEducational Trust and Ors. v. Medical Council of India and Ors.,(Writ Petition (C) No.267 of 2017) opined that common counselling doesnot in any manner affect the right of minority institutions to admit studentsof their own minority community. The Court held thus:

“10. Common counselling conducted by the DGHS/StateGovernment will not in any manner affect the rights of minorityinstitutions to admit students of their respective minority community.The minority quota seats, if any, in institutions run by minoritieswill be filled up by minority students only. Therefore, the rights ofminority institutions are fully protected. Needless to say thisarrangement will not apply to the States of Andhra Pradesh,Telangana and Jammu & Kashmir. As far as the other States areconcerned, needless to say, this arrangement shall apply to all thecolleges unless this Court has passed any different or separateorder.”

36.In YatinkumarJasubhai Patel (supra), the Court held thatintroduction of NEET does not affect the 50% State quota seat in PGmedicine course. The Court also considered Section 10D of the Act of1956 and regulations as amended by MCI. It opined as under:

“9.4. However, it is the case on behalf of the petitioners that inview of the introduction of the NEET Scheme and in view ofSection 10-D of the MCI Act, by which admissions are to begiven on the basis of merit in the NEET, such an “institutionalpreference” would not be permissible. It is required to be notedthat introduction of the NEET has, as such, nothing to do with anypreference/institutional preference, more particularly the“institutional preference” as approved by this Court time and again.The purpose and object of the introduction of NEET was toconduct uniform entrance examination for all medical educationalinstitutions at the undergraduate level or postgraduate level andadmissions at the undergraduate level and postgraduate level areto be given solely on the basis of the merits and/or marks obtainedin the NEET examination only. It is required to be noted that earlierthe respective universities including Gujarat University used to

hold examination for postgraduate admission to medical coursesand now instead of such tests by Gujarat University/universitiesconcerned, merit is to be determined on the basis of the NEETexamination results only and admissions are required to be givenon the basis of such merits or marks obtained in NEET. The onlyobligation by virtue of introduction of NEET is that, once centralisedadmission test is conducted, the State, its agencies, universitiesand institutions cannot hold any separate test for the purpose ofadmission to postgraduate and PG and diploma courses and suchseats are to be filled up by the State agencies, universities/institutions for preparing merit list as per the score obtained bythe applicants in NEET examination and therefore by introductionof NEET, Section 10-D of the MCI Act has been amended,consequently amendment to the Post-Graduate EducationRegulations, 2000, admission to postgraduate courses are madeproviding for solely on the basis of the score secured by thecandidates seeking admission based on centralised examinationi.e. NEET.

9.5. Even while giving admissions in the State quota/institutionalreservation quota, still the admissions are required to be given onthe basis of the merits determined on the basis of the NEETexamination results. Under the circumstances, introduction of theNEET Scheme, as such, has nothing to do with the “institutionalpreference”. Therefore, the change by introduction of the NEETScheme shall not affect the institutional preference/reservationas approved by this Court from time to time in catena of decisions,more particularly the decisions referred to hereinabove. Underthe guise of introduction of the NEET Scheme, the petitionerscannot be permitted to re-agitate and/or reopen the issue withrespect to institutional preference which has been approved andsettled by this Court in catena of decisions, more particularlythe decisions referred to hereinabove.”

37.The notifications, which are questioned in the matters and theamendment made to Section 10D as introduced in the Act of 1956 andregulations as amended by the MCI and similar provisions inserted inthe Dentists Act & Regulations, cannot be said to be taking away therights of the unaided minority institutions or private institutions of makingadmission in any manner as it is permissible to provide regulatory

mechanism at the national level and the entrance test applies even to AllIndia Institute of Medical Science (AIIMS) – the most reputed Instituteof India. It is open to provide the regulatory mechanism for admissionfor such courses as held in T.M.A. Pai Foundation (supra) thequalification and conditions of eligibility in the interest of academicstandards can be provided, and there could be regulatory measures forensuring educational standards and maintaining excellence in the matterof professional institution. Thus, the decision in T.M.A. Pai Foundation(supra) rendered by 11-Judge Bench is juxtaposedto the submission raisedon behalf of petitioners.38.In P.A. Inamdar (supra), the Court laid down the triple test ofa fair, transparent and non-exploitative mechanism and if the admissionprocedure adopted by private institution does not satisfy all or any of thetriple tests, it held that the admission procedure can be taken over by theState substituting its process.This aspect was gauged in Modern DentalCollege and Research Centre (supra) in broader perspectiveconsidering prevailing situation of capitation fee and education becomingsaleable commodity. decision has been taken to regulate admission inprofessional colleges on national basis so as to wipe out the corruptionand various evils from the system. Even, the NEET has been madeapplicable to such premier institution like All India Institute of MedicalSciences (AIIMS)and so many others.The decision has been takenconsidering the overall national scenario, there cannot be any exemption,otherwise, there would be no end to such claims and multipleexaminations. It would not be possible to eradicate evils. We cannotrestore overall derogatory situation which prevailed before introductionof NEET. Still, there are several loopholes, which are to be plugged inthe admission procedure. Unscrupulous practices are being adopted byprivate colleges of not admitting students sponsored by centralisedcounselling committee.The minority and private institutions have to admitstudents based on merit in the permissible category, based on NEET asper procedure prescribed under the Act and Regulations.

39.In Faculty Association of All India Institute of MedicalSciences v. Union of India and Ors., (2013) 11 SCC 246, concerningissue of reservation in super-speciality, the Court opined:

“22. Although the matter has been argued at some length, themain issue raised regarding reservation at the superspeciality levelhas already been considered in Indra Sawhney case, 1992 Supp

(3) SCC 217, by nine-Judge Bench of this Court. Having regardto such decision, we are not inclined to take any view other thanthe view expressed by the nine-Judge Bench on the issue. Apartfrom the decisions rendered by this Court in Jagadish Sarancase, (1980) 2 SCC 768 and Pradeep Jain case, (1984) 3 SCC654, the issue also fell for consideration inPreeti Srivastava case,(1999) 7 SCC 120, which was also decided by Bench of fiveJudges. While inJagadish Saran case,(1980) 2 SCC 768 and inPradeep Jain case, (1984) 3 SCC 654, it was categorically heldthat there could be no compromise with merit at the superspecialitystage, the same sentiments were also expressed in PreetiSrivastava case, (1999) 7 SCC 120, as well.

23. In Preeti Srivastava case, (1999) 7 SCC 120, the ConstitutionBench had an occasion to consider Regulation 27 of the PostGraduate Institute of Medical Education and Research, ChandigarhRegulations, 1967, whereby 20% of seats in every course of studyin the institute was to be reserved for candidates belonging to theScheduled Castes, Scheduled Tribes or other categories ofpersons, in accordance with the general rules of the CentralGovernment promulgated from time to time. The ConstitutionBench came to the conclusion that Regulation 27 could not haveany application at the highest level of superspeciality as this woulddefeat the very object of imparting the best possible training toselected meritorious candidates, who could contribute to theadvancement of knowledge in the field of medical research andits applications. Their Lordships ultimately went on to hold thatthere could not be any type of relaxation at the superspecialitylevel.24. In para 836 of the judgment in Indra Sawhney case, 1992Supp (3) SCC 217, it was observed that while the relevance andsignificance of merit at the stage of initial recruitment cannot beignored, it cannot also be ignored that the same idea of reservationimplies selection of less meritorious person. It was also observedthat at the same time such price would have to be paid if theconstitutional promise of social justice was to be redeemed.However, after making such suggestions, note of caution wasintroduced in the very next paragraph in the light of Article 15 ofthe Constitution. distinction was, however, made with regard to

the provisions of Article 16 and it was held that Article 335 wouldbe relevant and it would not be permissible not to prescribe anyminimum standard at all. Of course, the said observation wasmade in the context of admission to medical colleges and referencewas also made to the decision in State of M.P. v. Nivedita Jain,(1981) 4 SCC 296, where admission to medical courses wasregulated by an entrance test. It was held that in the matter ofappointment of medical officers, the Government or the PublicService Commission would not be entitled to say that there wouldnot be minimum qualifying marks for Scheduled Castes/ScheduledTribes candidates while prescribing minimum for others. In thevery next paragraph, the nine-Judge Bench while discussing theprovisions of Article 335 also observed that there were certainservices and posts where either on account of the nature of dutiesattached to them or the level in the hierarchy at which they stood,merit alone counts. In such situations, it cannot be advised toprovide for reservations. In the paragraph following, the positionwas made even more clear when Their Lordships observed thatthey were of the opinion that in certain services in respect ofcertain posts, application of rule of reservation may not beadvisable in regard to various technical posts including posts insuperspeciality in medicine, engineering and other scientific andtechnical posts.”

(emphasis supplied)

The Court directed the Union of India to take appropriate steps inaccordance with views expressed in the case of Dr.Preeti Srivastavaand Anr. v. State of M.P. and Ors. (1999) 7 SCC 120.

40.In Re TheKerala Education Bill (supra), it was opined thatminority could not ask for aid and recognition of educational institution,when such institutions are recognized it would be open to make theinstitution retaining its character as effective as an educational institutionwithout destroying its minority character for the purpose as enshrined inArticle 30. The institution has to be an effective vehicle of education forall concerned.

41.In Gandhi Faiz-e-am College, Shahjahanpur (supra), itwas opined that regulation which imposes restrictions is bad; but regulationwhich facilitates is good. We find that in Frank Anthony Public School

AEmployees’ Association (supra) it has been observed that institutionhas to be an effective vehicle of education for the minority communityor other persons who resort to it. There cannot be any complaint ofinvasion of the fundamental right to administer the institution when itdenies the members of its staff the opportunity to achieve the very object.The Court observed that minorities have no right to maladminister. TheBnotifications issued, amendment made to Section 10D of the Act of 1956and regulations framed by MCI and similar provisions for dental coursesproviding for NEET cannot be said to be impinging upon the rights of theminority and the provisions of the Act and regulations framed by MCIunder the Act of 1956, in DCI Act and regulations are required to beCobserved by each and every institution. The regulatory measures underthe Act/ Regulations cannot be said to be averse to the interest of suchinstitutions, and such reasonable measurescan be carved out. They donot impinge upon the rights of institutions guaranteed under Articles 14,19(1)(g), 25 and 30 of the Constitution of India.D42.In T.M.A. Pai Foundation (supra), this Court opined thatState maintained or aided educational institutions, whether establishedby the Government or the majority or minority community cannot denyadmission to citizen on the grounds only of religion, race, caste orlanguage. While considering the issueIn Re TheKerala Education Bill(supra), it was observed that the right of the private training colleges toEadmit students of their choice was severely restricted. It further observedthat the right under Article 30(1) is not so absolute as to prevent theState from making any regulation whatsoever. The Government cannotbe prevented from framing regulations that are in the national interest.This Court observed that it is difficult to comprehend that right to theFreligious or linguistic minorities are given by the Constitution, which wouldenable them to establish and administer educational institutions in mannerto conflict with the other Parts of the Constitution. There is no reasonwhy conditions for the welfare of students and teachers should not bemade, but any law or rule or regulation that would put the educationalinstitutions run by the minorities at disadvantage when compared toGthe institutions run by the others will have to be struck down. The law ofthe land includes rules and regulations that must apply equally to themajority as well as minority institutions. The minority institutions must beallowed to do what non-minority is permitted to do. They have to complywith the conditions of recognition, which cannot be such as to whittleHdown the right guaranteed under Article 30 of the Constitution.

43.In Brahmo Samaj Education Society (supra), it was heldthat State could impose necessary conditions for proper maintenance ofstandards of education and to check maladministration.

44.On behalf of the appellants, it was submitted that individualautonomy is the concern of any Government. There should not beinterference to defeat the rights conferred by the Constitution. Reliancehas been placed on Gobind v. State of Madhya Pradesh (supra) inwhich this Court held:

“20. There can be no doubt that the makers of our Constitutionwanted to ensure conditions favourable to the pursuit of happiness.They certainly realized as Brandeis, J. said in his dissent inOlmstead v. United States, 277 US 438, 471, the significance ofman’s spiritual nature, of his feelings and of his intellect and thatonly part of the pain, pleasure, satisfaction of life can be foundin material things and therefore they must be deemed to haveconferred upon the individual as against the Government spherewhere he should be let alone.

21. “The liberal individualist tradition has stressed, in particular,three personal ideals, to each of which corresponds range of‘private affairs’. The first is the ideal of personal relations; thesecond, the Lockean ideal of the politically free man in minimallyregulated society; the third, the Kantian ideal of the morallyautonomous man, acting on principles that he accepts as rational.[See Benn, “Privacy, Freedom and Respect for Persons” in J.Pennock & J. Chapman. Eds., Privacy, Nomos XIII, 1, 15-16].”

23. Individual autonomy, perhaps the central concern of anysystem of limited Government, is protected in part under ourConstitution by explicit constitutional guarantees. In the applicationof the Constitution our contemplation cannot only be of what hasbeen but what may be. Time works changes and brings intoexistence new conditions. Subtler and far reaching means ofinvading privacy will make it possible to be heard in the streetwhat is whispered in the closet. Yet, too broad definition ofprivacy raises serious questions about the propriety of judicialreliance on right that is not explicit in the Constitution. Of course,privacy primarily concerns the individual. It therefore relates toand overlaps with the concept of liberty. The most serious advocate

of privacy must confess that there are serious problems of definingthe essence and scope of the right. Privacy interest in autonomymust also be placed in the context of other rights and values.

24. Any right to privacy must encompass and protect the personalintimacies of the home, the family, marriage, motherhood,procreation and child rearing. This catalogue approach to thequestion is obviously not as instructive as it does not give analyticalpicture of the distinctive characteristics of the right of privacy.Perhaps, the only suggestion that can be offered as unifyingprinciple underlying the concept has been the assertion that aclaimed right must be fundamental right implicit in the conceptof ordered liberty.

25. Rights and freedoms of citizens are set forth in the Constitutionin order to guarantee that the individual, his personality, and thosethings stamped with his personality shall be free from officialinterference except where reasonable basis for intrusion exists.“Liberty against Government” phrase coined by ProfessorCorwin expresses this idea forcefully. In this sense, many of thefundamental rights of citizens can be described as contributing tothe right to privacy.

26. As Ely says:

There is nothing to prevent one from using the word ‘privacy’ tomean the freedom to live one’s life without governmentalinterference. But the Court obviously does not so use the term.Nor could it, for such right is at stake in every case.[See TheWage of Crying Wolf: Comment on Roe v. Wade, 82 Yale LJ920, 932].”

45.The reliance has also been placed on K.S. Puttaswamy andAnr. v. Union of India and Ors., 2017 (10) SCC 1, the decision relatingto privacy in which this Court held:

“351. The Constitution of any country reflects the aspirationsand goals of the people of that country voiced through the languageof the few chosen individuals entrusted with the responsibility offraming its Constitution. Such aspirations and goals depend uponthe history of that society. History invariably is product of various

forces emanating from religious, economic, and political events[1].The degree of refinement of the Constitution depends upon thewisdom of the people entrusted with the responsibility of framingthe Constitution. The constitution is not merely document signedby 284 Members of the Constituent Assembly. It is politicallysacred instrument created by men and women who risked livesand sacrificed their liberties to fight alien rulers and securedfreedom for our people, not only of their generation but generationsto follow. The Constitution cannot be seen as document writtenin ink to replace one legal regime by another. It is testamentcreated for securing the goals professed in Preamble[2]. Part III ofthe Constitution is incorporated to ensure the achievement of theobjects contained in the Preamble[3]. “We the People” of thiscountry are the intended beneficiaries[4] of the Constitution. It mustbe seen as document written in the blood of innumerable martyrsof Jalianwala Bagh and the like. Man is not creature of theState. Life and liberty are not granted by the Constitution.Constitution only stipulates the limitations on the power of theState to interfere with our life and liberty. Law is essential toenjoy the fruits of liberty; it is not the source of liberty andemphatically not the exclusive source.”

1However, various forced which go into the making of history are dynamic. Those whoare entrusted with the responsibility of the working of the Constitution must necessarilykeep track of the dynamics of such forces. Evolution of science and growth of technologyis another major factor in the modern world which is equally factor to be kept in mindto successfully work the Constitution.

2Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.

“91. … Our Preamble outlines the objectives of the whole Constitution. It expresses“what we had thought of dreamt for so long”.” (SCC p.323, para 91).

3Kerala Education Bill, 1957, In re, AIR 1958 SC 956

“5. … To implement and fortify these supreme purposes set forth in the Preamble, PartIII of our Constitution has provided for us certain fundamental rights.” (AIR p. 965,para 5).

4Bidi Supply Co. v. Union of India, AIR 1956 SC 479

“23. After all, for whose benefit was the Constitution enacted? What was the point ofmaking all this bother about fundamental rights? I am clear that the Constitution is notfor the exclusive benefit of governments and States; it is only for lawyers and politiciansand officials and those highly placed. It also exists for the common man, for the poor

A46.It was argued that certain colleges have produced doctors ofrenowned fame, and they are an asset for India. There is no doubt aboutit that doctors of international fame have been produced by variousinstitutions. They are an asset not only for India but also for the entirehumanity. They are pioneers in various fields of medical science such asOncology, Surgery, and other branches of medical science. But, when itBcomes to the eradication of the malpractices that have crept into thesystem, we have to take into consideration larger interest of the educationcountrywide. The NEET has been prescribed by the Legislature in thelarger public interest that has to prevail. We find the provisions to bereasonable conditions of recognition/ affiliation are binding for the veryCexistence of all such institution whether they are run by majority orminority failing which they cannot exists and impart education. Theconditions are reasonable and cannot be said to be taking away any ofthe constitutional rights of minority institutions,they are reasonable, fairand intended to bring transparency in the professional education imparted

by institutions. They are applicable for all institutions alike minorities areDnot placed on disadvantageous platform.

47.There is no doubt as to the concept of limited Governmentand least interference is welcomed, but in which field and to what extentbalancing with the larger public and national interest is required. Theindividual autonomy, rights, and obligations are to be free from officialEinterference except where the rational basis for intrusion exists. TheConstitution provides limitation on the power of the State to interferewith life, liberty, and rights, however, the concept of limited governmentcannot be extended to level when it defeats the very national interest.The maladies with which professional education suffers in this countryFare writ large. The regulatory framework created by the MCI/ DCI isconcomitant of conditions, affiliation and recognition, and providing centralexamination in the form of NEET cannot be said to be violative of therights under Articles 19(1)(g) and 30. The regulatory framework is notrestrictive, but caters to the effective enjoyment of the rights conferredunder the aforesaid provisions. The provisions qualify the doctrine ofGand the humble, for those who have businesses at stake, for the “butcher, the baker andthe candlestick maker”. It lays down for this land “a rule of law” as understood in thefree democracies of the world. It constitutes India into Sovereign Republic andguarantees in every page rights and freedom to the side by side and consistent with theoverriding power of the State to act for the common good of all.” (AIR p.487, para 23)

H[For convenience, citations have been renumbered.]

proportionality considered in Modern Dental College and ResearchCentre (supra). What has been held therein for State level examinationholds good for NEET also.

48.The prescription of NEET is definitely in order to improvethe medical education, co-related to the improvement of public health,thus, it is step-in furtherance of the duty of the State enshrined in theDirective Principles of the State Policy contained in Article 47 of theConstitution of India. Similarly, Article 46 aims at promotion of educationaland economic interests of Scheduled Castes, Scheduled Tribes, and otherweaker sections. By prescription of one equivalence examination ofNEET, the interest of their merit is also equally protected and its aims ofpreventing various malpractices, which crept into system and preventeconomic exploitation by selling seats with which maladythe professionalmedical education system suffered. Article 51A(j) deals with the duty tostrive towards excellence in all spheres of individual and collective activityso that the nation constantly rises to higher levels of endeavour andachievement. For that purpose, recognition of merit is necessary, andone has to be given full opportunity in pursuit of his/her aim. Theprescription of NEET is to provide equal opportunity and level launchingplatform to an individual to perform his duty as enshrined under Article51A(j). Thus, we find that there is no violation of the aforesaid provisionsas argued by appellants, rather action is in furtherance of the constitutionalaims and directions to achieve intendment of Article 51A(j) and is in thenational interest.

49.In Secretary, Malankara Syrian Catholic College v. T. Joseand Ors., (2007) 1 SCC 386, Court considered T.M.A. Pai Foundation(supra), and held that all laws made by the State to regulate theadministration of educational institutions and grant of aid will apply tominority educational institutions also, but dilution of right under Article30 is not permissible. The right under Article 30 is not above the law.The regulations or conditions concerning the welfare of the students andteachers should be made applicable to provide proper academicatmosphere.

50. In P.A. Inamdar (supra), the court opined that activities ofeducation are charitable. The educational institutions, both of non-minority and minority character, can be regulated and controlled so thatthey do not indulge in selling seats of learning to make money. They canbe allowed to generate such funds as would be reasonably required to

Arun the institute and for its further growth. In P.A. Inamdar (supra), thisCourt noted the difference between professional and non-professionaleducational institutions. It observed that professional educationalinstitutions constitute class by themselves and are distinguished fromeducational institutions imparting non-professional education. With respectto unaided minority educational institutions, Article 30 of theBConstitution does not come in the way of the State stepping in for thepurpose of securing transparency and recognition of merit in the matterof admissions, and the conditions of recognition are binding on suchinstitutions. In P.A. Inamdar (supra), the Court opined that the admissionsbased on merit were in the national interest and strengthening the nationalCwelfare.51.In Ahmedabad St. Xavier’s College Society (supra), the Courtheld that minority institutions have right to admit students of their choicesubject to reasonable restriction for the academic qualification and theregulation, which will serve the interest of the students, can be imposedDfor ensuring efficiency and fairness. Education is vital for the nation; itdevelops the ethos of the nation. Regulations are necessary to see thatthere are no divisive or disintegrating forces in administration. It observedthat it is not reasonable to claim that minority institutions will havecomplete autonomy. Some checks may be necessary and will serve theacademic needs of the institution. correlative duty of good administrationEis attached to the right to administer educational institution. It was alsoopined in Ahmedabad St. Xavier’s College Society (supra) in paragraph19 quoted above that the State can prescribe regulations to ensure theexcellence of the institution that does not militate against the right of theminority to administer the institutions. Such Regulations are not restrictionsFon the substance of the right, which is guaranteed; they secure the properfunctioning of the institution. The institution cannot be allowed to fallbelow the standards of excellence under the guise of the exclusive rightof the management. Minorities are as much part of the nation as themajority, and anything that impinges upon national interest mustnecessarily in its ultimate operation affect the interests of all.G

52.It was further opined in Ahmedabad St. Xavier’s CollegeSociety (supra) in paragraph 94 quoted above that there are conditionsof affiliation or recognition of an educational institution, it is implicit inthe request for grant thereof that the educational institution would abideby the regulations which are made by the authority granting affiliationH

or recognition. When Government and MCI/DCI or concernedUniversities grant affiliation and recognition, the institutions are boundby the conditions prescribed for affiliation and recognition. It has alsobeen observed that recognition or affiliation creates an interest inthe university to ensure that the educational institution is maintained forthe purpose intended and any Regulation which will subserve or advancethat purpose will be reasonable and no minority institution establishedand administered by religious or linguistic minority can claim recognition or affiliation without submitting to those regulations.

53.In view of the law laid down in T.M.A. Pai Foundation (supra),it is apparent that NEET/common entrance test is devise to standardiseand computing equivalence between different kinds of qualifications. Itdoes not interfere with the rights of the unaided minority institutions as ithas been imposed in national interest considering the malpractices ofgranting illegal admission by virtually selling the seats in derogation torights of meritorious students. The charitable activity of education becamea saleable commodity and prerogative of wealthy persons and poorstudents were forced to get education funded from Banks making itdifficult for them to come out of tentacular octave of interest. They areexploited in bud before they bloom into flower. The ill-reputation developedby MCI forced to change its entire structure. The national interest requiresfurther improvement in the system to eradicate evils from the system.The situation is still grim and require to be dealt with firm hand andsteely determination.

54.In Dr.Preeti Srivastava and Anr. v. State of M.P. andOrs.(supra), it was opined that at super speciality level there cannot beany reservation or lowering of the minimum qualifying marks. In ModernDental College and Research Centre (supra), considering variousmalpractices, it was observed that education is being used as exploitativefinancial device. Education is not commodity to be purchased by moneypower and deserving one as per merit cannot be deprived of the right toobtain it. The State cannot remain mute spectator, and it must step into prevent exploitation.55.Thus, it is apparent that the provisions in question which havebeen incorporated in the Act relating to Medical/Dental education, theGovernment, MCI and DCI cannot be said to be an invasion of thefundamental rights. The intendment is to ensure fairness in the selection,recognition of merit, and the interests of the students. In the national

Ainterest, educational institutions are basically for charitable purpose.By and large, at present education is devoid of its real character ofcharity, it has become commodity. To weed out evils from the system,which were eating away fairness in admission process, defeating meritand aspiration of the common incumbent with no means, the State hasthe right to frame regulatory regime for aided/ unaided minority/ privateBinstitutions as mandated by Directives Principles, Articles 14 and 21 ofthe Constitution. The first step has been taken to weed out the evilsfrom the system, and it would not be in the national interest to step backconsidering the overall scenario. If we revert to the old system, posterityis not going to forgive us. Still, complaints are galore that merit is beingCignored by private institutions; there is still flood of litigation. It seemsthat unfettered by large number of regulatory measures, unscrupulousmethods and malpractices are yet being adopted. Building the nation isthe main aspect of education, which could not be ignored and overlooked.They have to cater to national interest first, then their interest, more so,when such conditions can be prescribed for recognition, particularly inDthe matter of professional education.

56.In St. Stephen’s College v. University of Delhi (supra), itwas held that there has to be balancing of interest of rights of minorities.It was observed that 50% of the annual admission has to be given to themembers of communities other than the minority community on the basisEof merit. Regulations that serve the interest in standards of educationamongst the recognised institutions could validly be made. Such generalpatterns and standards are the need, and such regulation shall not havethe effect of depriving the right of minorities to educate their children intheir own institution.F

57.The learned counsel argued that it is open to some of theinstitutions to impose higher standards of merit. Firstly, conditions ofaffiliation are binding apart from that, we find that when it comes tonational standards and the objects sought to be achieved by NEET, toconduct individual examinations by some institutions cannot be permitted.GThe system is not yet out of clutches of unscrupulous devices and dubiousmeans are adopted to defeat merit, the interest of education would furthersuffer and very purpose of centralised examination would be defeated.It is not possible to prescribe further examination over and above NEETthat cannot be said to be workable, no exemption can be granted fromNEET, considering the objective with which it has been introduced. WeH

find that the uniform Entrance Examination cannot be said to beunreasonable regulatory framework. Considering the terms andconditionsfor affiliation and recognition for professional medical and suchother professional courses are binding, and no relaxation can be permittedin the conditions.

58. Thus, we are of the opinion that rights under Articles19(1)(g)and 30 read with Articles 25, 26 and 29(1) of the Constitution ofIndia do not come in the way of securing transparency and recognitionof merits in the matter of admissions. It is open to regulating the courseof study, qualifications for ensuring educational standards. It is open toimposing reasonable restrictions in the national and public interest. Therights under Article 19(1)(g) are not absolute and are subject to reasonablerestriction in the interest of the student’s community to promote merit,recognition of excellence, and to curb the malpractices. Uniform EntranceTest qualifies the test of proportionality and is reasonable. The same isintended to check several maladies which crept into medical education,to prevent capitation fee by admitting students which are lower in meritand to prevent exploitation, profiteering, and commercialisation ofeducation. The institution has to be capable vehicle of education. Theminority institutions are equally bound to comply with the conditionsimposed under the relevant Acts and Regulations to enjoy affiliation andrecognition, which apply to all institutions.In case they have to imparteducation, they are bound to comply with the conditions which are equallyapplicable to all. The regulations are necessary, and they are not divisiveor disintegrative. Such regulatory measures enable institutions toadminister them efficiently. There is no right given to maladminister theeducation derogatory to the national interest. The quality of medicaleducation is imperative to sub-serve the national interest, and the meritcannot be compromised. The Government has the right for providingregulatory measures that are in the national interest, more so in view ofArticle 19(6) of the Constitution of India.

59.The rights of the religious or linguistic minorities under Article30 are not in conflict with other parts of the Constitution. Balancing therights is constitutional intendment in the national and more enormouspublic interest. Regulatory measures cannot be said to be exceeding theconcept of limited governance. The regulatory measures in question arefor the improvement of the public health and is step, in furtherance ofthe directive principles enshrined in Articles 47 and 51(A)(j) and enable

Athe individual by providing full opportunity in pursuance of his objectiveto excel in his pursuit. The rights to administer an institution under Article30 of the Constitution are not above the law and other Constitutionalprovisions. Reasonable regulatory measures can be provided withoutviolating such rights available under Article 30 of the Constitution toadminister an institution. Professional educational institutions constituteBa class by themselves. Specific measures to make the administration ofsuch institutions transparent can be imposed. The rights available underArticle 30 are not violated by provisions carved out in Section 10D ofthe MCI Act and the Dentists Act and Regulations framed by MCI/DCI.The regulatory measures are intended for the proper functioning ofCinstitutions and to ensure that the standard of education is maintainedand does not fall low under the guise of an exclusive right of managementto the extent of maladministration. The regulatory measures by prescribingNEET is to bring the education within the realm of charity whichcharacter it has lost. It intends to weed out evils from the system andvarious malpractices which decayed the system. The regulatory measuresDin no way interfere with the rights to administer the institution by thereligious or linguistic minorities.60. Resultantly, we hold that there is no violation of the rights ofthe unaided/aided minority to administer institutions under Articles19(1)(g)and 30 read with Articles 25, 26 and 29(1)of the Constitution of India byEprescribing the uniform examination of NEET for admissions in thegraduate and postgraduate professional courses of medical as well asdental science. The provisions of the Act and regulation cannot be saidto be ultra vires ortaking away the rights guaranteed under theConstitution of India under Article 30(1) read with Articles 19(1)(g), 14,F25, 26 and 29(1). Accordingly, the transferred cases, appeal, and writpetitions are disposed of.

Ankit Gyan

Matters disposed of.