CHRISTIAN MEDICAL COLLEGE VELLORE & ORS v. UNION OF INDIA AND ORS.

The Judgments of the Court was delivered by B ALTAMAS KABIR, CJI. 1. Four notifications, two dated 21.12.2010 and the other two dated 31.5.2012, issued by the Medical Council of India and the Dental Council of India, are the subject matter of challenge in all these matters which have c been heard together by us. Notification No. MCl-31 (1)/2010- MED/49068 described as "Regulations on Graduate Medical Education (Amendment) 2010, (Part II)" has been published by the Medical Council of India to amend the "Regulations on Graduate Medical Education, 1997". Notification No.MCl.18(1)/ 0 201 O-MED/49070 described as "Post-graduate Medical Education (Amendment) Regulation, 2010 (Part II)" has been issued by the said Council to amend the "Post Graduate Medical Education Regulations, 2000". Both the Regulations came into force simultaneously on their publication in the Official E Gazette. The third and fourth Notifications both bearing No. DE- 22-2012 dated 31.5.2012, relating to admission in the BOS and MOS courses published by the Dental Council of India, are similar to the notifications published by the MCI.

2Copy pinpoint2. The four aforesaid Notifications have been challenged on several grounds. The major areas of challenge to the aforesaid Notifications are: (i) The powers of the Medical Council of India and the Dental Council of India to regulate the process of admissions into medical colleges and institutions run by the State Governments, private individuals (aided and unaided), educational institutions run by religious and linguistic minorities, in the guise of laying down minimum standards of medical education, as provided for in Section 19A of the H Indian Medical Council Act, 1956, and under Entry

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS v. 937 UNION OF INDIA AND ORS. {ALTAMAS KABIR, CJI.]

66 of List I of the Seventh Schedule to the A Constitution.

(ii) Whether the introduction of one National Eligibility- cum-Entrance Test (NEET) offends the fundamental right guaranteed to any citizen under Article 19(1 )(g) B of the Constitution to practise any profession or to carry on any occupation, trade or business?

(iii) Whether NEET violates the rights of religious and linguistic minorities to establish and administer educational institutions of their choice, as c guaranteed under Article 30 of the Constitution?

(iv) Whether subordinate legislation, such as the right to frame Regulations, flowing from a power given under a statute, can have an overriding effect over D the fundamental rights guaranteed under Articles 25, 26, 29(1) and 30 of the Constitution?

(v) Whether the exclusion of Entry 11 from the State List and the introduction of Entry 25 in the Concurrent List by the Constitution Forty Second E (Amendment). Act, 1976, makes any difference as far as the Regulations framed by the Medical Council of India under Section 33 of the 1956 Act and those framed by the Dental Council of India under Section 20 of the Dentists Act, 1948, are concerned, and whether such Regulations would have primacy over State legislation on the same subject?

(vi) Whether the aforesaid questions have been adequately answered in T.M.A. Pai Foundation Vs. State of Kamataka [(2002) 8 SCC 481), and in the subsequent decisions in Islamic Academy of Education Vs. State of Karnataka [(2003) 6 SCC 697), P.A. lnamdar Vs. State of Maharashtra H

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(vii) Whether the views expressed by the Constitution Bench comprised of Five Judges in Dr. Preeti B Srivastava Vs. State of M.P. [(1999) 7 SCC 120) have any impact on the issues raised in this batch of matters?

3Copy pinpoint3. In order to appreciate the challenge thrown to the four notifications, it is necessary to understand the functions and duties of the Medical Council of India under the Indian Medical Council Act, 1956, and the Dental Council of India constituted under the Dentists Act, 1948. The submissions advanced in regard to the MBBS and Post-graduate courses will apply to the BOS and MDS courses also.

4Copy pinpoint4. The Indian Medical Council Act, 1933, was replaced by the Indian Medical Council Act, 1956, hereinafter referred to as "the 1956 Act", inter alia, with the following objects in mind :- E "(a) to give representation to licentiate members of the medical profession, a large number of whom are still practicing in the country;

(b) to provide for the registration of the names of citizens of India who have obtained foreign medical qualifications which are not at present recognized under the existing Act;

(c) to provide for the temporary recognition of medical qualifi-cations granted by medical institutions in countries outside India with which no scheme of reciprocity exists in cases where the medical practitioners concerned are attached for the time being to any medical institution in India for the purpose of teaching or research or for any charitable objects;

H (d) to provide for the formation of a Committee of Post-

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS. v. 939 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.]

graduate Medical Education for the purpose of assisting A the Medical Council of India to prescribe standards of post- graduate medical education for the guidance of universities and to advise universities in the matter of securing uniform standards for post-graduate medical education throughout India; B

(e) To provide for the maintenance of an all-India register by the Medical Council of India, which will contain the names of all the medical practitioners possessing recognized medical qualifications." c

5Copy pinpoint5. The Medical Council of India, hereinafter referred to as "MCI", has been defined in Section 2(b) of the 1956 Act to mean the Medical Council of India constituted under the said Act. The Council was constituted under Section 3 of the Indian Medical Council Act, 1956. Section 6 of the aforesaid Act D provides for the incorporation of the Council as a body corporate by the name of Medical Council of India, having perpetual succession and a common seal, with power to acquire and hold property, both movable and immovable, and to contract, and to sue and be sued by the said name. E

6Copy pinpoint6. The powers vested in the MCI are essentially recommendatory in nature. Section 1OA, which was introduced in the 1956 Act by Amending Act 31 of 1993, with effect from 27th August, 1992, inter alia, provides that notwithstanding anything contained in the Act or any other law for the time being in force:-

(a) no person shall establish a medical college; or

(b) no medical college shall :- G

(i) open a new or higher course of study or training (including a postgraduate course ofstudy or training) which would enable a student of such H

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A course or training to qualify himselffor the award of any recognised medicalqualification; or

(ii) increase its admission capacity in anycourse of study or training (including ap o st g r a d u ate course of study or training), B . except with the previous permission of the Central Government obtained maccordance with the provisions of this section.

Under Section 10A the function of the MCI is purely c recommendatory for the purpose of grant of permission by the Central Government to establish a new medical college or to introduc~ a new course of study.

7Copy pinpoint7. Section 19A which was introduced into the 1956 Act by Act 24 of 1964 with effect from 16th June, 1964, provides for .o the Council to prescribe "minimum standards of medical education". Since Section 19A will have some bearing on the judgment itself, the same is extracted hereinbelow in full :-

"19A. Minimum standards of medical education - (1) E The Council may prescribe the minimum standards of medical education required for granting recognised medical qualifications (other than postgraduate medical qualifications) by universities or medical institutions in India. F (ii) Copies of the draft regulations and of all subsequent amendments thereof shall be furnished by the Council to all' State Governments and the Council shall before submitting the regulations or any amendment thereof, as • the case may be, to the Central Government for sanction, take into consideration the comments of any State Government received within three months from the furnishing of the copies as aforesaid.

(3) The Committee shall from time to time report to the H Council on the efficacy of the regulations and may

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS. v. 941 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.]

recommend to the Council such amendments thereof as A it may think fit."

8Copy pinpoint8. Section 20 of the 1956 Act, provides for a Post-gradu11te Medical Education Committee to assist the Medical Council of India to prescribe standards of post-graduate medical education · 8 for the guidance of the Universities. For the sake of reference, the relevant portions of Section 20 of the 1956 Act ~ith which we are concerned, are also extracted hereinbelow :- · ·

"20. Post-graduate Medical Education Committee for assisting Council in matters relating to post-graduate C medical education - (1) The Council may prescribe standards of Postgraduate Medical Education for the" guidance of Universities, and may advise Universities in the matter of securing uniform standards for Postgraduate Medical Education through out India, and for this purpose D • the Central Govt. may constitute from among the members of the Council a Postgraduate Medical Education Committee (hereinafter referred to as the Post-graduate Committee). E

9Copy pinpoint9. By the first of the two Notifications dated 21st December, 2010, being MCl-31(1)/2010-Med./49068, the Medical Council of India, in purported exercise of the powers conferred by Section 33 of the 1956 Act, made various amendments to the 1997 Regulations on Graduate Medical Education. The most significant amendment, which is also the F subject matter of challenge in some of these writ petitions and transferred cases, is clause 5 in Chapter :I of the Regulations. The relevant paragraph in the Amendment Notification reads as follows: • G "6. In Chapter II, Clause 5 under the heading "Procedure for selection to MBBS Course shall be as follows" shall be substituted as under:-

I. There shall be a single eligibility cum entrance H

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A examination namely 'National Eligibility-cum-Entrance Test for admission to MBBS course' in each academic year. The overall superintendence, direction and control of National Eligibility-cum-Entrance Test shall vest with Medical Council of India. However, Medical Council of B India with the previous approval of the Central Government shall select organization/s to conduct 'National Eligibility- cum-Entrance Test for admission to MBBS course.

II. In order to be eligible for admission to MBBS course for a particular academic year, it shall be necessary for a c candidate to obtain minimum of 50% (Fifty Percent) marks in each paper of National Eligibility-cum-Entrance Test held for the said academic year. However, in respect of candidates belonging to Scheduled Casts, Scheduled Tribes and Other Backward Classes, the minimum D percentage shall be 40% (Forty Percent) in each paper and in respect of candidates with locomotory disability of lower limbs, the minimum percentage marks shall be 45% (Forty Five Percent) in each paper of National Eligibility- cum-Entrance Test: E Provided when sufficient number of candidates belonging to respective categories fail to secure minimum marks as prescribed in National Eligibility-cum-Entrance Test in any academic year for admission to MBBS Course, the Central Government in consultation with Medical Council F of India may at its discretion lower the minimum marks required for admission to MBBS Course for candidates belonging to respective categories and marks so lowered by the Central Government shall be applicable for the said year only. G Ill. The reservation of seats in medical colleges for respective categories shall be as per applicable laws · prevailing in States/ Union Territories. An all India merit list as well as State-wise merit list of the eligible candidates shall be prepared on the basis of the m<:>rks obtained in

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS v. 943 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.] / National Eligibility-cum-Entrance Test and candidates shall be admitted to MBBS course from the said lists only.

IV. No candidate who has failed to obtain the minimum eligibility marks as prescribed in Sub Clause(ii) above shall be admitted to MBBS Course in the said academic 8 year.

V. All admissions to MBBS course within the respective categories shall be based solely on marks obtained in the National Eligibility-cum·Entrance Test. (Dr. P. Prasannaraj) c Additional Secretary Medical Council of India"

10Copy pinpoint10. Similarly, by virtue of Notification No. MCl.18(1)/201 O- Med./49070, in purported exercise of the powers conferred by D Section 33 of the 1956 Act, the Me.dical Council of India, with the previous approval of the Central <3overnment, made similar amendments to the Postgraduate Medical Education Regulations, 2000, providing for a single eligibility cum entrance examination. For the sake of reference, the portion of the E notification which is relevant for our purpose is extracted herein below:

"No. MCl.18(1 )/201 O-Med./49070. - In exercise of the powers conferred by Section 33 of the Indian Medical F Council Act, 1956(102 of 1956), the Medical Council of India with the previous approval of the Central Government hereby makes the following regulations to further amend the "Postgraduate Medical Education Regulations, 2000", namely:- G

1. (i) These Regulations may be called the Postgraduate Medical Education (Amendment) Regulations, 2010 (Part- 11)".

(ii) They shall come into force from the date of their H

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A publication in the Official Gazette.

2. In the "Postgraduate Medical Education Regulations, 2000", the following additions /modifications/ deletions I substitutions, shall be as indicated therein:-

B 3. Clause 9 under the heading 'SELECTION OF POSTGRADUATE STUDENTS' shall be substituted as under:-

"9. Procedure for selection of candidate for Postgraduate c courses shall be as follows:

I. There shall be a single eligibility cum entrance examination namely 'National Eligibility-cum-Entrance Test for admission to Postgraduate Medical Courses' in eac.h academic year. The overall superintendence, direction and D control of National Eligibility-cum-Entrance Test shall vest with Medical Council of India. However, Medical Council of India with the previous approval of the Central Government shall select organization/s to conduct 'National Eligibility-cum-Entrance Test for admission to E Postgraduate courses'."

Two similar Notifications both bearing No.DE-22-2012 dated 31.5.2012, were published by the Dental Council of India for the same purpose. F

11Copy pinpoint11. The challenge to these Notifications has thrown up various issues, which include the powers of the Central and the State Governments to legislate on matters relating to education under Entry 66 of List I of the Seventh Schedule to the G Constitution and Entry 25 of List Ill which was introduced by way of the Constitution (Forty-second Amendment) Act, 1976, having particular regard to the fact that the previous Entry No. 11 in the State List, was omitted by the said amendment, doing away with education as a State subject and denuding the State of its powers to legislate on matters relating to education except H

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS, v. 945 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.]

in accordance with Entry 25 of the Concurrent List. In fact, what A has been pointed out on behalf of some of the parties is that by omitting Entry 11 from the State List and including Entry 25 in the Concurrent List of the Seventh. Schedule, the Union Government acquired the authority to also legislate on matters relating to education, which it did not have previously. ·· B ---·---- ....

12Copy pinpoint12. Another common submission, which is of great significance as far as th,ese matters are concerned, was with regard to the adverse impact of the single entrance examination on the fundamental right guaranteed to all citizens under Article 19(1)(g) of the Constitution to practise any profession, or to C carry on any occupation, trade or business. The provisions of Article 30 1 preserving the right of both religious and linguistic · minorities, to establish and administer educational institutions of their choice, were also highlighted by learned counsel for some of the Petitioners. D

13Copy pinpoint13. The major challenge, however, was with regard tq the MCI's attempt to regulate admissions to the M.B.B.S. and Post- graduate Courses in all medical colleges and medical institutions in the country run by the different State Governments E and by private agencies falling within the ambit of Article 19(1)(g) and in some cases Article 30 of the Constitution as well by introducing NEET. One of the facets of such challenge was the inter-play of Article 29(2) and Article 30(1), a8 also Article 30(2) of the Constitution. Various authorities have been cited on behalf of the diff~rent parties, harking back to the Presidential Reference iri the Kera/a Education Bill case [(1959] S.C.R. 995], and the subsequent views, which have been expressed on most of the aforesaid issues by various combinations of Judges, which include combinations of Eleven- G Judges, Nine-Judges, Seven"Judges, Five-Judges and Three- Judges, of this Court. While most of the decisions touch upon the main theme in these, matters regarding the right of either the Central Government or the State Government or the MCI to regulate admissions into medical colleges, the issue.raised H

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A before us concerning the authority of the MCI and the DCI to conduct an All India Entrance Examination, which will form the basis of admissions into the M.B.B.S. as well as Post-graduate Courses in all medical colleges and institutions all over the country, could not be considered in the earlier judgments. As B a result, after the introduction of NEET, admissions to the M.B.B.S. and Post-graduate courses and the BOS and MOS courses can be made only on the basis of the Select List prepared in accordance with the results of the All India Entrance Test, which would not only eliminate a large number of c applicants from admission to the medical colleges, but would also destroy the very essence qf Articles 25, 26, 29(1) and 30 of the Constitution, since admission is one of the more important functions of an institution.

14Copy pinpoint14. The submissions in these cases were commenced by D Mr. Harish Salve, learned senior counsel appearing for the Christian Medical College, Vellore, and the Christian Medical College, Ludhiana, the Petitioners in Transferred Cases (C) Nos. 98-99 of 2012. Mr. Salve's submissions were supplemented by Mr. K. Parasaran, Dr. Rajiv Dhawan, Mr. K.K. E Venugopal and Mr. R. Venkataramani, learned senior counsel, and several others appearing for some of the religious and linguistic minorities referred to in Article 30 of the Constitution .

. - 15. Mr. Salve submitted that the two Notifications both F dC;tted 21st December, 2010, incorporating amendments in the ·"Regulations on Graduate Medical Education, 1997 and the Post-Graduate Medical Education Regulations, 2000, and introducing a single National Eligibility-cum-Entrance Test (NEET) for admission to the MBBS course and the Post- graduate course in each academic year throughout the country, had been challenged by the Petitioners before the Madras High Court, in Writ Petition Nos.24109 of 2011 and 24110 of 2011. Mr. Salve urged that the said amendments stifled and stultified the fundamental rights guaranteed to religious minorities under Articles 25, 26, 29(1) and 30 of the Constitution of India. Mr. H

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS. v. 947 UNION OF INDIA AND ORS. [ALTAMAS l<ABIR, CJI.]

Salve submitted that Article 25 secures to every person, subject A to public order, health and morality and to the other provisions of Part-Ill of the Constitution, freedom of conscience and the right freely to profess, practise and propagate religion. The said right guarantees to every person freedom not only to entertain such religious belief, but also to exhibit his belief in 8 such outward acts as he thought proper and to propagate or disseminate his ideas for the edification of others. Mr. Salve urged that this proposition was settled by this Court as far back as in 1954 by a Bench of Seven-Judges in Commr., H.R.E. Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954 C SCR 1005].

16Copy pinpoint16. Mr. Salve submitted that subject to public order, morality and health, Article 26 of the Constitution guarantees to every reiigious denomination or a section thereof, the right to establish and maintain institutions for religious and charitable D purposes and to manage its own affairs in matters of religion. Mr. Salve urged that in regard to affairs in matters of religion, the right of management given to a religious body is a guaranteed fundamental right which no legislation can take away. Mr. Salve submitted that Article 30(1) of the Constitution E gives religious and linguistic minorities the right to establish and to administer educational institutions of their choice, which was reiterated and emphasised in T.M.A. Pai Foundation Vs. State of Karnataka [(2002) 8 SCC 481], decided by a Bench of Eleven Judges. F

17Copy pinpoint17. Mr. Salve submitted that the Christian Medical College, Vellore, hereinafter referred to as "CMC Vellore", was established 113 years ago as a one-bed clinic by one Dr. Ida Sophia Scudder, the daughter of an American Medical Missionary. She started training Compounders (Health G Assistants) in 1903 and Nurses in 1909, and was able to establish a Missionary Medical School for women leading to the Licentiate in Medical Practice in 1918 which was upgraded to the MBBS course affiliated to the Madras University. H

948 SUPREME COURT REPORTS [2013] 7 S.C.R.

A Admission was thrown open to men for the MBBS course in

1947. As the college grew, from 1948 it started admitting students by an All-India Entrance Examination, followed by an in-depth interview. By 1950, the affiliation to the University was confirmed and the intake was increased to 60 under-graduate 8 MBBS students in 1964, which has now increased to 100 MBBS students. To meet the needs of the local population, a large number of Higher Speciality Courses, Post-graduate Medical Courses, Allied Health Sciences Courses and Courses _in Nursing, have also been developed over the years.

18Copy pinpoint18. Currently, there are 11 Post-graduate Medical Diploma Courses; 23 Post-graduate Medical Degree Courses and 17 Higher Specialty Courses approved by the Medical Council of India and affiliated to the Tamil Nadu Dr. MGR Medical University. Today, the CMC Vellore, a minority, unaided, non- 0 capitation fee educational institution, is run by the Petitioner Association comprised of 53 Christian Churches and Christian Organizations belonging to the Protestant and Orthodox traditions. The stated object of the Petitioner Association, as mentioned in its Memorandum of Association, E Constitution and the Bye-laws is "the establishment, maintenance and development of a Christian Medical College and Hospitals, in India, where women and men shall receive education of the highest grade in the art and science of medicine and of nursing, or in one or other of F the related professions, to equip them in the spirit of Christ for service in the relief of suffering and the promotion of health".

19Copy pinpoint19. Out of 100 seats available for the under-graduate MBBS Course, 84 are reserved for candidates from the G Christian community and the remaining are available for selection in the open category with reservation for candidates belonging to the Scheduled Castes and Scheduled Tribes. Similarly, 50% of the Post-graduate seats are reserved for Christian candidates and the remaining 50% are available for H

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS. v. 949 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJL]

open selection on an All-India basis. Mr. Salve submitted that A all students selected for the MBBS course are required to sign a bond agreeing to serve for a period of two years in areas of need, upon completion of their courses. Similarly, Post- graduate students selected in the Christian minority category have also to give a similar undertaking. B

• 20. Mr. Salve submitted that the Medical Colleges and institutions run by the Writ Petitioners charge fees which are subsidised and are even lower than the fees charged by Government Medical Colleges. Liberal scholarships are given by· the College to those who have difficulty in making the payments, which include boarding, lodging and University charges (which are considerably higher). Learned counsel 1

submitted that the institution was established by a Christian minority doctor in response to her religious beliefs and the command of Jesus Christ exhorting His disciples and followers to heal the sick and has evolved an admission process for both its undergraduate and post graduate courses in order to ensure that the selected candidates are suitable for being trained according to the ideology professed at Vellore. Mr. Salve urged that the selection process is comprised of an All India Entrance E Test followed by a searching. interview and special test devised in 1948. Such process has been improved and fine-tuned over the years so that the candidates are not only trained as health professionals, but to also serve in areas of need in difficult circumstances. F

21Copy pinpoint21. It was pointed out that this system of admission resorted to by the Petitioner has successfully reflected the ideals with which the medical college was founded and a survey conducted in 1992 established the fact that the majority of G graduates and post-graduates, who have passed out from the college, have been working in India for more than 10 years after· their graduation and the majority among them were working in non-metropolitan areas of the country. This evaluation remained the same, even during surveys conducted in 2002 and 2010, H

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A and is in striking contrast to similar surveys carried out by other medical institutions of equal standard, where only a small number of graduates have been working in non-metropolitan areas.

22Copy pinpoint22. Mr. Salve submitted that in 1993, an attempt was made 8 by the Government of Tamil Nadu to interfere with the admission process in the institution by a letter dated 7th May, 1993, directing the Petitioner to implement the scheme framed by this Court in the case of Unni Krishnan Vs. State of U.P. [(1993) 1 sec 645], insofar as the undergraduate course in Nursing C was concerned. The Petitioner-institution filed Writ Petition No.482 of 1993 before this Court challenging the State Government's attempts to interfere with the admission process of the institution as being contrary to and in violation of the rights guaranteed to it under Article 30 of the Constitution. In the D pending Writ Petition, various interim orders were passed by the Constitution Bench of this Court permitting the institution to take resort to its own admission procedure for the undergraduate course in the same manner in which it had been doing in the past. The said Writ Petition was heard in 2002, E along with the T.M.A. Pai Foundation case (supra), wherein eleven questions had been framed.

While hearing the matters, the Chief Justice formulated five issues to encompass all the eleven questions, on the basis of F which the hearing was conducted, and the same are extracted below:

"1. Is there a fundamental right to set up educational institutions and, if so, under which provision?

G 2. Does Unni Krishnan case [(1993) 4 sec 111] require reconsideration?

3. In case of private institutions (unaided and aided), can there be government regulations and,· if so, to what extent? H

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS v. 951 · UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.]

4. In order to determine the existence of a religious or A linguistic minority in relation to Article 30, what is to be the · unit - the State or the country as a whole?

5. To what extent can the rights of aided private minority institutions to administer be regulated?" B

Out of the eleven questions framed by the Bench, Questions 3(b), 4 and 5(a) are extremely relevant for deciding the questions raised in the Writ Petition filed by the Petitioner- institution. For the sake of reference, the said three Questions are extracted hereinbelow: C

"Q3(b). To what extent can professional education be treated as a matter coming under minorities rights under Article 30?

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

Q5(a). Whether the minority's rights to establish and administer educational institutions of their choice will include the procedure and method of admission and selection of students?"

23Copy pinpoint23. Mr. Salve submitted that the answer given by the F Eleven-Judge Bench to the first Question is that Article 30(1) re-e'mphasises the right of religious and linguistic minorities to establish and administer educational institutions of their choice. The use of the words "of their choice" indicates that even professional educational institutions would be covered by G Article 30.

24Copy pinpoint24. The answer to the second Question is that, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards; admission of students to unaided minority educational institutions cannot be regulated H

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A by the State or University concerned. Mr. Salve pointed out that a note of caution was, however, introduced and it was observed that the right to administer, not being an absolute right, there could be regulatory measures for ensuring proper educational standards and maintaining the excellence thereof, particularly B in regard to admissions to professional institutions. It was further held that a minority institution does not cease to be so, when it receives grant-in-aid and it would, therefore, be entitled to have a right to admit students belonging to the minority group, but at the same time it would be required to admit a reasonable c number of non-minority students so that rights under Article 30(1) were not substantially impaired and the rights of a citizen under Article 29(2) of the Constitution were not infringed. However, the concerned State Governments would have to notify the percentage of non-minority students to be admitted 0 in the institution. Amongst students to be admitted from the minority group, inter se merit would have to be ensured and, in the case of aided professional institutions, it could also be submitted that in regard to the seats relating to non-minority students, admission should normally be on the basis of the E common entrance test held by the State agency, followed by counselling wherever it exists.

25Copy pinpoint25. In reply to the third Question, it was held that a minority institution may have its own procedure and method of admission as well as selection of students, but such a F procedure would have to be fair and transparent and the selection of students in professional and higher educational colleges should be on the basis of merit. The procedure selected for admission by the minority institution ought not to ignore the merit of students for admission while exercising the G right to admit students by the colleges aforesaid, as in that event, the institution will fail to achieve excellence. The said procedure should not amount to maladministration.

26Copy pinpoint26. Some of the issues decided in the T.M.A. Pai H Foundation case came up for clarification in the Islamic

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS. v. 953 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.]

Academy of Education case (supra) and for further interpretation in P.A. lnamdar's case (supra), before a Bench of Seven-Judges, wherein the Petitioner-Association was duly represented. The Hon'ble Judges reiterated the views expressed in the T.M.A. Pai Foundation case that there cannot be any reservation in private unaided institutions, which had the right to have their own admission process, if the same was fair, transparent, non-exploitative and based on merit. Mr. Salve referred to paragraph 125 of the judgment in P.A. lnamdar's case (supra), which is relevant for our purpose, and reads as follows: c "125. As per our understanding, neither in the judgment of Pai Foundation [(2002) 8 SCC 481] nor in the Constitution Bench decision in Kera/a Education Bill [1959 SCR 995] which was approved by Pai·Foundation, is there anything which would allow the State to regulate or control admissions in the unaided professional educational institutions so as to compel them to give up a share of the available seats to the candidates chosen by the State, as if it was filling the seats available to be filled up at its discretion in such private institutions. This would amount to nationalisation of seats which has been specifically disapproved in Pai Foundation [(2002) 8 SCC 481]. Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions. Such appropriation of seats can also not be held to be a regulatory measure in the interest of the minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of G Article 19(6) of the Constitution of India. Merely because the resources of the State· in providing professional education are limited, private educational institutions, which intend to provide better professional education, cannot be forced by the State to make admissions H

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A available on the basis of reservation policy to less meritorious candidates. Unaided institutions, as they are not deriving any aid from State funds, can have their own admissions if fair, transparent, non-exploitative and based on merit." 8

27Copy pinpoint27. Mr. Salve submitted that after this decision, the Petitioner Institution continued to admit students to its various graduate and post-graduate courses by following its own admission procedure, as it had been doing for the last several decades. Mr. Salve submitted that the Committee set up by the C Government of Tamil Nadu has permitted the Institution to follow its own admission procedure for undergraduate M.8.8.S. course for the academic year 2012-2013.

28Copy pinpoint28. While matters were thus poised, the Medical Council D of India framed the impugned amended Regulations, which, according to Mr. Salve, not only violated the fundamental rights guaranteed under Articles 25, 26 and 30 of the Constitution to minority run institutions, but if implemented, would destroy the very objective with which the hospital had been set up in E response to Christ's mission of healing the sick. Mr. Salve submitted that the impugned Notifications were inconsistent with the law laid down by the Supreme Court in its various decisions dealing with the rights of unaided, non-capitation fee minority institutions to admit students of their choice.

29Copy pinpoint29. Mr. Salve submitted that right from the decision in Unni Krishnan's case (supra), when the State Government first sought to interfere with the admission process adopted by the Petitioner Institution, this Court has, by virtue of different interim and final orders, held that there could be no reservation of seats in institutions like the ones run by the Petitioner, which are wholly unaided and have always been permitted to admit students of their choice, in keeping with their status as minority unaided professional institutions. It was urged that Clause 9(vi) of the Post-Graduate Notification, which provides for reservation, is ultra vires the provisions of Article 30(1) of the

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS v. 955 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.]

Constitution. Furthermore, when the State Government tried to reserve 50% of the seats in the Under-graduate courses, this Court granted a stay which continues to be operative.

30Copy pinpoint30. Mr. Salve submitted that the question of reservation of seats in minority institutions, which has been introduced by the impugned amendments, both in respect of the Under-graduate and the Post-Graduate courses, does violence to the rights conferred on minorities under Article 30(1) of the Constitution of India, as interpreted by this Court in various judgments starting from 1957 till 2002, when the question was finally decided by an Eleven-Judge Bench in the T.M.A. Pai Foundation case (supra). Even the reservation created for NRls in Unni Krishnan's case (supra) case was declared to be ultra vires the Constitution of India.

31Copy pinpoint31. It was urged that in a recent decision of this Court in the Indian Medical Association case (supra), it has, inter alia, been held that the level of regulation that the State could impose under Article 19(6) on the freedoms enjoyed pursuant to Sub- C I a use (g) of Clause (1) of Article 19 by non-minority educational institutions, would be greater than what could be . E imposed on minority institutions under Article 30(1) thereof, which continued to maintain their minority status by admitting students mostly belonging to the minority community to which the minority institutions claim to belong, except for a sprinkling of non-minority students, an expression which has been used F in P.A. lnamdar's case and earlier cases as well. Mr. Salve contended that the Petitioner Institution, from its very inception reserved up to 85% of its seats in the Under-graduate courses and 50% of the Post-Graduate seats for Christian students exclusively. In the remaining 15% of the seats in the Under- G graduate courses, reservations have been made for Scheduled Castes and Scheduled Tribes candidates.

32Copy pinpoint32. Mr. Salve contended that the impugned Notifications and the amendments to the MCI Regulations sought to be introduced thereby are contrary to the judgments delivered by H

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A the Constitution Bench. Learned counsel submitted that till the amendments were introduced, the concerned institutions had been conducting their own All India Entrance Tests for admission to the MBBS and Post-Graduate medical courses. Mr. Salve urged that there has been no complaint of maladministration as far as the institutions run by the Petitioner Association are concerned. ·

33Copy pinpoint33. If was further submitted that all the Petitioners in this batch of cases are either religious minority educational institutions or linguistic minority institutions; non-minority self- financing colleges, self-financing "Deemed to be Universities" under Section 3 of the University Grants Commission Act and the State Governments which run State medical colleges. However, it is the Christian Medical College, Vellore, which is among the very few institutions that fall in the first category. The D learned counsel urged that without demur, the Christian Medical College, Vellore, has been consistently rated among the top ten medical colleges in the country and usually ranked first or second. The excellence of patient care and academic training has been recognised, both at the national and international levels, and its contribution to health research has also been recognised as pioneering work by both national and international research funding agencies. Mr. Salve submitted that a part of the teachings of Jesus Christ, as documented in the Gospels, which form part of the New Testament, was to reach out to and to heal the sick, which command has been institutionalised by the Petitioner ever since it was established as a one-bed mission clinic-cum-hospital in 1900. Mr. Salve submitted that the activities of the Petitioner Institution clearly attract the provisions of Article 25 of the Constitution and through the Christian Medical College, Vellore, its activities are designed to achieve the avowed objective of providing human resources for the healing ministry of the Church. The activity of running medical courses and allied health sciences and nursing courses, in order to ensure constant supply of doctors and other para-medical staff to those hospitals, engaged in the healing

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS. v. 957 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.] of the sick, are acts performed by the Petitioner in furtherance of its religious faith and beliefs. It was submitted that in the decision of the Constitution Bench of Seven Hon'ble Judges in the case of Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954 SCR 1005), this Court held that Article 25 of the B Constitution, protects not only the freedom of religious opinion, but also acts done in pursuance of religious beliefs, as is clear from the expression "practice of religion"

34Copy pinpoint34. Mr. Salve also referred to the decision in the case of Ratilal Panachand Gandhi Vs. The State of Bombay & C Others, reported in 1954 SCR 1055, which was also a decision rendered by a Constitution Bench of this Court relying upon the decision in the Shirur Mutt case {supra), wherein similar sentiments were expressed. Various other decisions on the same issue were also referred to, which, however, need not D detain us.

35Copy pinpoint35. Mr. Salve further urged that the Petitioner Institution is still one of the largest tertiary care hospitals in the country, where patients come from all over India for expert treatment. The E medical college combines both medical treatment and education which, besides being a religious activity, is also a charitable activity, thereby bringing it within the ambit of Article 26(a) and (b) of the Constitution. Mr. Salve submitted that, in fact, the said activities had been recognised by this Court in F the T.M.A. Pai Foundation case {supra), wherein in paragraph 26, it was held as follows :-

"26. The right to establish and maintain educational institutions may also be sourced to Article 26(a), which grants, in positive terms, the right to every religious G '• denomination or any section thereof to establish and maintain institutions for religious and charitable purposes, subject to public order, morality and health. Education is a recognised head of charity. Therefore, religious denominations or sections thereof, which do not fall within H

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A the special categories carved out in Article 29(1) and 30(1), have the right to establish and maintain religious and educational institutions."

36Copy pinpoint36. Today the Petitioner has in place a selection process for admission to its Under-graduate and Post-graduate courses, 8 by which it seeks to select candidates imbibed in the spirit of Christ for the purpose of healing the sick and to dedicate their lives to serve the needy, both in the Petitioner Institution and also in far flung areas, where people have no ready access to medical care, through the Christian Mission Hospitals run by the members of the Petitioner Association. Mr. Salve submitted that the doctors, who are the product of the Petitioner Institution, are not only well-trained in medicine, but have also been imparted with values in the treatment of the sick and the needy in keeping with the teachings of Christ, who looked on everybody with compassion. Mr. Salve urged that the admission process has proved to be highly successful and effective, and in the case of St. Stephen's College Vs. University of Delhi [(1992) 1 SCC 558], this Court upheld the same as it was found to meet the objectives for which the E Institution itself had been established, despite the fact that it was an aided minority institution. Mr. Salve pointed out that in paragraph 54 of the judgment, this Court had occasion to deal with the expression "management of the affairs of the institution" and it was held that this management must be free from control F so that the founder or their nominees could mould the Institution as they thought fit and in accordance with the ideas of how the interests of the community in general and the institution in particular could be served.

37Copy pinpoint37. As far as unaided, non-capitation fee, religious minority institutions are concerned, Mr. Salve submitted that so long as the admission procedure adopted is fair, transparent and non- exploitative and there is no complaint of maladministration, it would be grossly unjust and unconstitutional to interfere with the administration of such an institution, in complete violence of the H

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS v. 959 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.]

freedoms guaranteed under Articles 25, 26 and 30 of the A Constitution. Mr. Salve submitted that if the National Eligibility- cum-Entrance Test was to be applied and followed in the case of minority institutions protected under Article 30 of the Constitution, it would result in complete denudation of the freedoms and rights guaranteed to such institutions under the B Constitution, as it would run counter to the very principles on which admissions in such institutions are undertaken.

38Copy pinpoint38. Mr. Salve submitted that neither Section 10A nor Section 19A of the 1956 Act, which were inserted in the principal Statute by amendment, contemplate that the MCI would itself be entitled to conduct entrance tests for admission into different medical colleges and hospitals in India. Learned counsel submitted that the main purpose of constituting the MCI was to ensure excellence in the field of medical education and for the said purpose, to regulate the standards of teaching and the infrastructure available for establishment of a new medical college or to introduce a new course of study in an existing college. What is made clear from Section 1OA is that no new medical college could be established and recognised by the Central Government without the recommendation of the Medical E Council of India. Such recognition would be dependent upon inspection and satisfaction that the proposed new medical college satisfied all the conditions stipulated by the Medical Council of India for starting a new medical college. Section 19A, which was inserted into the principal Act much before F Section 1OA, speaks of the minimum standards of medical education, other than post-graduate medical qualification, which the Medical Council of India may prescribe as being required for grant of recognition to medical institutions in India. G

39Copy pinpoint39. Mr. Salve urged that while Section 33 of the 1956 Act empowered the Council, with the previous sanction of the Central Government, to make Regulations to carry out the purposes of the Act and clause (I} empowered the Council to make Regulations with regard to the conduct of professional examinations, qualifications of examiners and the conditions of H

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A admission to such examinations, the same did not empower the Council to actually conduct the examinations, which continues to be the prerogative of the institution concerned.

40Copy pinpoint40. Mr. Salve submitted that in State of A.P. Vs. Lavu B Narendranath[(1971) 1 SCC 607], this Court had considered the validity of a test held by the State Government for admission to medical colleges in the State of Andhra Pradesh and had held that although the Andhra University Act, 1926, prescribed the minimum qualification of passing HSC, PUC, ISC C examinations for entry into a higher course of study, owing to the limited number of seats, the Government, which ran the medical colleges, had a right to select students out of the large number of candidates who had passed the entrance examination prescribed by it. It was also held that merely because the Government had supplemented the eligibility rules by a written test in the subjects with which the candidates were already familiar, there was nothing unfair in the test prescribed nor did it militate against the powers of the Parliament under Entry 66 of List I, which is not relatable to a screening test prescribed by the Government or by a University for selection of students out of a large number of students applying for admission to a particular course of study. This Court held that such a test necessarily partakes of the character of an eligibility test as also a screening test. Mr. Salve urged that in such a situation, minimum qualifying marks were necessary, but the said question has not been addressed at all in Lavu Narendranath's case (supra), since it did not arise in that case.

41Copy pinpoint41. Mr. Salve submitted that the Petitioner Institution has been supplementing the primary duty enjoined on the State G under Articles 21 and 47 of the Constitution in providing health care to the people in different parts of the country, including the rural and remote areas, through the several hospitals run by Christian Churches and organizations. Any interference with the manner in which these -minority institutions are being administered, except where the standards of excellence are H

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS. v. 961 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.] compromised, would not only strike at the very reason for their existence, but would disturb the health care services being provided by them. Mr. Salve submitted that the MCI, which is a creature of Statute, cannot travel beyond the powe{s vested in it by the Statute and its attempt to regulate and control the manner in which admissions are to be undertaken in these institutions, by introducing a single entrance examination, goes against the very grain of the fundamental rights vested in the religious and linguistic minorities to establish and administer educational institutions of their choice and to impart their religious values therein, so long as the same was not against c the peace and security of the State.

42Copy pinpoint42. Mr. Salve urged that the amended provisions of the MCI Regulations as impugned, were liable to be struck down as being contrary to the provisions of Articles 25, 26 and 30 of the Constitution, read with Sections 10A and 19A of the Indian D Medical Council Act, 1956.

43Copy pinpoint43. Having heard Mr. Harish Salve on the rights. claimed by religious minority medical institution enjoying' the protection of Articles 25, 26, 29(1) and 30 of the Constitution, we may now E turn to the submissions made by Mr. K. Parasaran, learned Senior Advocate, appearing on behalf of the Vinayaka Missions University, run by a linguistic minority, also enjoying the rights guaranteed under Article 19(1 )(g) and the protection of Article 30 of the Constitution. F

44Copy pinpoint44. Mr. Parasaran began by reiterating Mr. Salve's submission that while minority institutions enjoyed the fundamental rights guaranteed to any other individual or institution under Article 19(1 )(g) of the Constitution, in addition, linguistic minorities, like religious minorities, enjoy the special G protection afforded under Article 30 of the Constitution. Mr. Parasaran submitted that just as in the case of religious minorities, linguistic minorities also have the right to establish and administer educational institutions of their choice, which included the right to admit students therein. H

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45Copy pinpoint45. Mr. Parasaran submitted that the impugned Regulations are ultra vires, unconstitutional and violative of Article 19(1 )(g) of the Constitution, not only in respect of institutions run by minorities, but also to all institutions covered by NEET .. Mr. Parasaran submitted that if the Indian Medical B Council Act, 1956, is to be understood to empower the MCI to nominate the students for admission, it would be invalid, since the said Act and the amendments to the Act. which are relevant for the present cases, were enacted before the 42nd Constitution Amendment, whereby Entry 11 was removed from c List II of the Seventh Schedule and was relocated as Entry 25 in List Ill of the said Schedule, came into force on 3rd January, 1977.