CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION v. UNION OF INDIA AND OTHERS
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- Supreme Court of India
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- ARUN MISHRA, VINEET SARAN and M. R. SHAH
- Citation
- [2020] 5 S.C.R. 516
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Headnote — Supreme Court Reports (editorial summary, not part of the judgment)
Catchwords
Education/Educational Institutions – National Eligibility-cum- Entrance Test (NEET) if violates fundamental rights guaranteed u/Arts.19(1)(g), 25, 26, 29(1) & 30 – Notifications issued by Medical Council of India (MCI) and Dental Council of India (DCI) – NEET introduced for admission to MBBS course, Post- graduate course, BDS, MDS – Initially notifications were quashed – However, the said judgment was later recalled – During the pendency of petitions, s.10D, 1956 Act providing for uniform entrance examination for undergraduate and post-graduate level has come into force – s.10D, 1948 Act containing similar provisions w.r.t uniform entrance examination has also been inserted –
Held
Notifications questioned and the amendment made to s.10D as introduced in the 1956 Act and regulations as amended by MCI and similar provisions inserted in 1948 Act & Regulations, cannot be said to be violating the rights of the unaided/aided minority to administer institutions u/Arts.19(1)(g) & 30 r/w Arts. 25, 26 & 29(1) by prescribing the uniform examination of NEET for admissions in the graduate and postgraduate professional courses of medical as well as dental science – Provisions of the Act and regulation cannot be said to be ultra vires the rights guaranteed u/Art. 30(1) r/w Arts. 19(1)(g), 14, 25, 26 & 29(1) – It is open to provide regulatory mechanism for admission for such courses as held in T.M.A. Pai Foundation – A decision has been taken to regulate admission in professional colleges on national basis to wipe out corruption and various evils from the system – There cannot be any exemption, otherwise, there would be no end to such claims and multiple examinations – Minority and private institutions have to admit students based on merit in the permissible category, based on NEET as per procedure prescribed under the Act and Regulations – Rights u/Art.19(1)(g) are not H 516
Catchwords
CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 517 v. UNION OF INDIA AND OTHERS absolute and are subject to reasonable restriction in the interest of A student’s community to promote merit, recognition of excellence, and to curb the malpractices – Uniform Entrance Test qualifies the test of proportionality and is reasonable – Constitution of India – Arts. 14, 19(1)(g), 19(6), 25, 26 & 29(1), 30, 46, 47, 51A(j) – Indian Medical Council Act, 1956 – s.10D – Regulation on Graduate B Medical Education, 1997 – Dentists Act, 1948 – s.10D – Post Graduate Medical Education Regulations, 2000 – Regulations on Graduate Medical Education (Amendment) 2010 (Part II) – Post- Graduate Medical Education (Amendment) Regulation, 2010 (Part- II) – Regulations on Graduate Medical Education (Amendment) 2017 – Maharashtra Unaided Private Professional Educational C Institution (Regulation of Admissions & Fees) Act, 2015. Disposing of the matters, the Court
Held
1.1 The notifications, which are questioned in the matters and the amendment made to Section 10D as introduced in the Act of 1956 and regulations as amended by the MCI and similar provisions inserted in the Dentists Act & Regulations, cannot be said to be taking away the rights of the unaided minority institutions or private institutions of making admission in any manner as it is permissible to provide regulatory mechanism at the national level and the entrance test applies even to All India E Institute of Medical Science (AIIMS) – the most reputed Institute of India. It is open to provide the regulatory mechanism for admission for such courses as held in T.M.A. Pai Foundation the qualification and conditions of eligibility in the interest of academic standards can be provided, and there could be regulatory measures for ensuring educational standards and maintaining excellence in the matter of professional institution. Thus, the decision in T.M.A. Pai Foundation rendered by 11-Judge Bench is juxtaposedto the submission raised on behalf of petitioners. In P.A. Inamdar, the Court laid down the triple test of a fair, transparent and non-exploitative mechanism and if the admission procedure adopted by private institution does not satisfy all or any of the triple tests, it held that the admission procedure can be taken over by the State substituting its process. This aspect was gauged in Modern Dental College and Research Centre in a broader perspective considering prevailing situation of capitation
Reporter's headnote (continued) and case details
516 [2020]REPORTS SUPREME COURT 5 S.C.R. 516 [2020] 5 S.C.R.
(Transferred Case (Civil) No. 98 of 2012)
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A fee and education becoming saleable commodity. A decision has been taken to regulate admission in professional colleges on national basis so as to wipe out the corruption and various evils from the system. Even, the NEET has been made applicable to such premier institution like All India Institute of Medical B Sciences (AIIMS) and so many others. The decision has been taken considering the overall national scenario, there cannot be any exemption, otherwise, there would be no end to such claims and multiple examinations. It would not be possible to eradicate evils. Overall derogatory situation which prevailed before introduction of NEET cannot be restored. Still, there are several C loopholes, which are to be plugged in the admission procedure. Unscrupulous practices are being adopted by private colleges of not admitting students sponsored by centralised counselling committee.The minority and private institutions have to admit students based on merit in the permissible category, based on D NEET as per procedure prescribed under the Act and Regulations. [Paras 35, 37 and 38][610-G-H; 611-A-F] T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors. (2002) 8 SCC 481 : [2002] 3 Suppl. SCR 587; P. A. Inamdar and Ors. v. State of Maharashtra E and Ors. (2005) 6 SCC 537 : [2005] 2 Suppl. SCR 603; Modern Dental College and Research Centre and Ors. v. State of Madhya Pradesh and Ors. (2016) 7 SCC 353 : [2016] 3 SCR 579 – followed. 1.2 The notifications issued, amendment made to Section F 10D of the Act of 1956 and regulations framed by MCI and similar provisions for dental courses providing for NEET cannot be said to be impinging upon the rights of the minority and the provisions of the Act and regulations framed by MCI under the Act of 1956, in DCI Act and regulations are required to be observed by each and every institution. The regulatory measures under the Act/ G Regulations cannot be said to be averse to the interest of such institutions, and such reasonable measurescan be carved out. They do not impinge upon the rights of institutions guaranteed under Articles 14, 19(1)(g), 25 and 30 of the Constitution of India. There is no reason why conditions for the welfare of students H
CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 519 v. UNION OF INDIA AND OTHERS and teachers should not be made, but any law or rule or regulation that would put the educational institutions run by the minorities at a disadvantage when compared to the institutions run by the others will have to be struck down. The law of the land includes rules and regulations that must apply equally to the majority as well as minority institutions. The minority institutions must be allowed to do what non-minority is permitted to do. They have to comply with the conditions of recognition, which cannot be such as to whittle down the right guaranteed under Article 30 of the Constitution. [Paras 41, 42][614-B-C, F-H] 1.3 The NEET has been prescribed by the Legislature in the larger public interest that has to prevail. The provisions found to be reasonable conditions of recognition/affiliation are binding for the very existence of all such institution whether they are run by majority or minority failing which they cannot exists and impart education. The conditions are reasonable and cannot be said to be taking away any of the constitutional rights of minority institutions, they are reasonable, fair and intended to bring transparency in the professional education imparted by institutions. They are applicable for all institutions alike minorities are not placed on a disadvantageous platform. There is no doubt as to the concept of limited Government and least interference is welcomed, but in which field and to what extent balancing with the larger public and national interest is required. The individual autonomy, rights, and obligations are to be free from official interference except where the rational basis for intrusion exists. The Constitution provides a limitation on the power of the State to interfere with life, liberty, and rights, however, the concept of limited government cannot be extended to a level when it defeats the very national interest. The maladies with which professional education suffers in this country are writ large. The regulatory framework created by the MCI/ DCI is concomitant of conditions, affiliation and recognition, and providing central examination in the form of NEET cannot be said to be violative of the rights under Articles 19(1)(g) and 30. The regulatory framework is not restrictive, but caters to the effective enjoyment of the rights conferred under the aforesaid provisions. The provisions qualify the doctrine of proportionality considered in Modern Dental College and Research Centre. What has been held therein for State H
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A level examination holds good for NEET also. The prescription of NEET is definitely in order to improve the medical education, co-related to the improvement of public health, thus, it is a step- in furtherance of the duty of the State enshrined in the Directive Principles of the State Policy contained in Article 47 of the Constitution of India. Similarly, Article 46 aims at promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes, and other weaker sections. By prescription of one equivalence examination of NEET, the interest of their merit is also equally protected and its aims of preventing various malpractices, which crept into system and prevent economic exploitation by selling seats with which maladythe professional medical education system suffered. Article 51A(j) deals with the duty to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. For that purpose, recognition of merit is necessary, and one has to be given a full opportunity in pursuit of his/her aim. The prescription of NEET is to provide equal opportunity and level launching platform to an individual to perform his duty as enshrined under Article 51A(j). Thus, there is no violation of the aforesaid provisions as argued by appellants, rather action is in furtherance of the constitutional aims and directions to achieve intendment of Article 51A(j) and is in the national interest. [Paras 46-48][618-C-G; 619-A-E] 1.4 In view of the law laid down in T.M.A. Pai Foundation, it is apparent that NEET/common entrance test is a devise to standardise and computing equivalence between different kinds of qualifications. It does not interfere with the rights of the unaided minority institutions as it has been imposed in national interest considering the malpractices of granting illegal admission by virtually selling the seats in derogation to rights of meritorious students. The charitable activity of education became a saleable commodity and prerogative of wealthy persons and poor students were forced to get education funded from Banks making it difficult for them to come out of tentacular octave of interest. They are exploited in bud before they bloom into flower. The ill-reputation developed by MCI forced to change its entire structure. The national interest requires further improvement in the system to H
CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 521 v. UNION OF INDIA AND OTHERS eradicate evils from the system. The situation is still grim and require to be dealt with firm hand and steely determination. Thus, it is apparent that the provisions in question which have been incorporated in the Act relating to Medical/Dental education, the Government, MCI and DCI cannot be said to be an invasion of the fundamental rights. The intendment is to ensure fairness in the selection, recognition of merit, and the interests of the students. In the national interest, educational institutions are basically for a charitable purpose. By and large, at present education is devoid of its real character of charity, it has become a commodity. To weed out evils from the system, which were eating away fairness in admission process, defeating merit and aspiration of the common incumbent with no means, the State has the right to frame regulatory regime for aided/ unaided minority/ private institutions as mandated by Directives Principles, Articles 14 and 21 of the Constitution. The first step has been taken to weed out the evils from the system, and it would not be in the national interest to step back considering the overall scenario. If the old system is reverted to, posterity is not going to forgive us. Still, complaints are galore that merit is being ignored by private institutions; there is still a flood of litigation. It seems that unfettered by a large number of regulatory measures, unscrupulous methods and malpractices are yet being adopted. Building the nation is the main aspect of education, which could not be ignored and overlooked. They have to cater to national interest first, then their interest, more so, when such conditions can be prescribed for recognition, particularly in the matter of professional education. The learned counsel argued that it is open to some of the institutions to impose higher standards of merit. Firstly, conditions of affiliation are binding apart from that, it is found that when it comes to national standards and the objects sought to be achieved by NEET, to conduct individual examinations by some institutions cannot be permitted. The system is not yet out of clutches of unscrupulous devices and dubious means are adopted to defeat merit, the interest of education would further suffer and very purpose of centralised examination would be defeated. It is not possible to prescribe further examination over and above NEET that cannot be said to be workable, no exemption can be granted from NEET, H
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A considering the objective with which it has been introduced. The uniform Entrance Examination cannot be said to be unreasonable regulatory framework. Considering the terms and conditionsfor affiliation and recognition for professional medical and such other professional courses are binding, and no relaxation can be permitted in the conditions. [Paras 53, 55 and 57][621-C-E; B G-H; 622-A-D, F-H; 623-A] 1.5 Rights under Articles 19(1)(g)and 30 read with Articles 25, 26 and 29(1) of the Constitution of India do not come in the way of securing transparency and recognition of merits in the matter of admissions. It is open to regulating the course of study, qualifications for ensuring educational standards. It is open to imposing reasonable restrictions in the national and public interest. The rights under Article 19(1)(g) are not absolute and are subject to reasonable restriction in the interest of the student’s community to promote merit, recognition of excellence, and to curb the malpractices. Uniform Entrance Test qualifies the test of proportionality and is reasonable. The same is intended to check several maladies which crept into medical education, to prevent capitation fee by admitting students which are lower in merit and to prevent exploitation, profiteering, and commercialisation of education. The institution has to be a capable vehicle of education. The minority institutions are equally bound to comply with the conditions imposed under the relevant Acts and Regulations to enjoy affiliation and recognition, which apply to all institutions.In case they have to impart education, they are bound to comply with the conditions which are equally applicable to all. The regulations are necessary, and they are not divisive or disintegrative. Such regulatory measures enable institutions to administer them efficiently. There is no right given to maladminister the education derogatory to the national interest. The quality of medical education is imperative to sub-serve the national interest, and the merit cannot be compromised. The G Government has the right for providing regulatory measures that are in the national interest, more so in view of Article 19(6) of the Constitution of India. The rights of the religious or linguistic minorities under Article 30 are not in conflict with other parts of the Constitution. Balancing the rights is constitutional intendment in the national and more enormous public interest. Regulatory
CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 523 v. UNION OF INDIA AND OTHERS measures cannot be said to be exceedingthe concept of limited governance. The regulatory measures in question are for the improvement of the public health and is a step, in furtherance of the directive principles enshrined in Articles47 and 51(A)(j) and enable the individual by providing full opportunity in pursuance of his objective to excel in his pursuit. The rights to administer an institution under Article 30 of the Constitution are not above the law and other Constitutional provisions. Reasonable regulatory measures can be provided without violating such rights available under Article 30 of the Constitution to administer an institution. Professional educational institutions constitute a class by themselves. Specific measures to make the administration of such institutions transparent can be imposed. The rights available under Article 30 are not violated by provisions carved out in Section 10D of the MCI Act and the Dentists Act and Regulations framed by MCI/DCI.The regulatory measures are intended for the proper functioning of institutions and to ensure that the standard of education is maintained and does not fall low under the guise of an exclusive right of management to the extent of maladministration. The regulatory measures by prescribing NEET is to bring the education within the realm of charity which character it has lost. It intends to weed out evils from the system and various malpractices which decayed the system. The E regulatory measures in no way interfere with the rights to administer the institution by the religious or linguistic minorities. Resultantly, there is no violation of the rights of the unaided/ aided minority to administer institutions under Articles19 (1)(g) and 30 read with Articles 25, 26 and 29(1) of the Constitution of F India by prescribing the uniform examination of NEET for admissions in the graduate and postgraduate professional courses of medical as well as dental science. The provisions of the Act and regulation cannot be said to be ultra vires or taking away the rights guaranteed under the Constitution of India under Article 30(1) read with Articles 19(1)(g), 14, 25, 26 and 29(1). G [Paras 58-60][623-B-H; 624-A-F] Ahmedabad St. Xavier’s College Society and Anr. v. State of Gujarat and Anr. (1974) 1 SCC 717 : [1975] 1 SCR 173; St. Stephen’s College v. University of Delhi (1992) 1 SCC 558 : [1991] 3 Suppl. SCR 121 – followed. H
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A Frank Anthony Public School Employees’ Association v. Union of India and Others (1986) 4 SCC 707 : [1987] 1 SCR 238; Bihar State Madarasa Education Board, Patna v. Madarasa Hanfia Arabic College, Jamalia and Others (1990) 1 SCC 428 : [1989] 2 Suppl. SCR 399; Brahmo Samaj Education Society v. State of West Bengal B (2004) 6 SCC 224 : [2004] 2 Suppl. SCR 214; Sindhi Education Society and Anr. v. Chief Secretary, Government of NCT of Delhi and Ors. (2010) 8 SCC 49 : [2010] 8 SCR 81; Secretary, Malankara Syrian Catholic College v. T. Jose and Ors. (2007) 1 SCC 386 C : [2006] 9 Suppl. SCR 644 – relied on. Sankalp Charitable Trust and Anr. v. Union of India and Ors. (2016) 7 SCC 487; Gobind v. State of Madhya Pradesh and Anr. (1975) 2 SCC 148 : [1975] 3 SCR 946; K.S. Puttaswamy v. Union of India (2017) 10 SCC D 1: [2017] 10 SCR 569; Islamic Academy of Education and Ors. v. State of Karnataka and Ors. (2003) 6 SCC 697 : [2003] 2 Suppl. SCR 474; Christian Medical College Vellore v. Union of India (2014) 2 SCC 305 : [2013] 7 SCR 908; State of Madhya Pradesh v. Jainarayan Chouksey and Ors. (2016) 9 SCC 412; State E of Maharashtra v. D.Y. Patil Vidyapeeth and Ors. (2016) 9 SCC 401; Dar-us-Salam Educational Trust and Ors. v. Medical Council of India and Ors. (2017) 6 SCALE 320; Yatin kumar Jasubhai Patel and Ors. v. State of Gujarat and Ors. (2019) 10 SCC 1 : [2019] 12 SCR F 848; Re The Kerala Education Bill 1957 AIR 1958 SC 956 : [1959] SCR 995; Rev. Sidhajbhai Sabhai and Ors. v. State of Bombay and Anr. [1963] 3 SCR 837; Rev. Father W. Proost and Ors. v. State of Bihar and Ors. AIR 1969 SC 465 : [1969] 2 SCR 73; The Gandhi Faiz-e-am College, Shahjahanpur v. University of Agra G and Anr. (1975) 2 SCC 283 : [1975] 3 SCR 810; Sk. Md. Rafique v. Managing Committee, Contai Rahamania High Madrasah and Ors. (2020) 1 SCALE 345; Chandana Das (Malakar) v. State of West Bengal and Ors. (2015) 12 SCC 140 : [2014] 13 SCR 796; Faculty H Association of All India Institute of Medical Sciences v.
CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 525 v. UNION OF INDIA AND OTHERS
Union of India and Ors. (2013) 11 SCC 246 : [2014] A 14 SCR 1634; Dr. Preeti Srivastava and Anr. v. State of M.P. and Ors. (1999) 7 SCC 120 : [1999] 1 Suppl. SCR 249 – referred to. Case Law Reference (2016) 7 SCC 487 referred to Para 15 B
[2016] 3 SCR 579 followed Para 15 [2002] 3 Suppl. SCR 587 followed Para 15 [1975] 3 SCR 946 referred to Para 15 C [2017] 10 SCR 569 referred to Para 15 [2003] 2 Suppl. SCR 474 referred to Para 15 [2005] 2 Suppl. SCR 603 followed Para 15 (2016) 7 SCC 487 referred to Para 17 D [2013] 7 SCR 908 referred to Para 17 (2016) 9 SCC 412 referred to Para 17 (2016) 9 SCC 401 referred to Para 17 (2017) 6 SCALE 320 referred to Para 17 E [2019] 12 SCR 848 referred to Para 17 [1959] SCR 995 referred to Para 20 [1963] 3 SCR 837 referred to Para 21 [1969] 2 SCR 73 referred to Para 21 F [1975] 1 SCR 173 followed Para 22 [1975] 3 SCR 810 referred to Para 23 [1987] 1 SCR 238 relied on Para 24 [1989] 2 Suppl. SCR 399 relied on Para 25 G [1991] 3 Suppl. SCR 121 followed Para 26 (2020) 1 SCALE 345 referred to Para 26 [2004] 2 Suppl. SCR 214 relied on Para 28 [2010] 8 SCR 81 relied on Para 30 H
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A [2014] 13 SCR 796 referred to Para 30 [2014] 14 SCR 1634 referred to Para 39 [1999] 1 Suppl. SCR 249 referred to Para 39 [2017] 10 SCR 569 referred to Para 45 B [2006] 9 Suppl. SCR 644 relied on Para 49 CIVIL ORIGINAL JURISDICTION: Transferred Case (Civil) No. 98 of 2012. From the Judgment and Order dated 10.10.2012 of this Hon'ble Court passed in Transfer Petition (Civil) No. 365 of 2012. 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, D 11, 12-13, 16, 14-15, 23-24, 19, 20, 21-22, 17, 18, 25, 28-29, 48, 49, 39, 40, 42, 41, 43, 44, 46, 45, 47, 37-38, 30, 31-32, 33-36, 59, 60, 61, 62, 63-65, 66-69, 70-71, 72, 73, 75, 76, 108 of 2013, 25 of 2019, Writ Petition. (Civil) Nos. 443, 750 of 2016, Special Leave Petition.(C) No. 28223 of 2016. Vikas Singh, R. Venkataramani, Jayanth Muthraj, Sr. Advs., Gaurav E Sharma, Dhawal Mohan, Prateek Bhatia, Ms. Deepeika Kalia, V.G. Pragasam, Prabu Ramasubramanian, S. Manuraj, Yashraj Singh Bundela, Praveen Vignesh, M. Yogesh Kanna, S Raja Rajeshwaran, Karthik Rajendran, Ms. Uma Prasuna Bachu, Rohit Rathi, Ms. Sheena Taqui, Ms. Bina Gupta, Kshitij Vaibhav, K.S.T. Thambi Pillai, Hitesh Kumar Sharma, Akhileshwar Jha, Ms. Miria Jasmin, Samrat Shinde, Sachin Patil, F Anil Kumar Mishra, Idrish Mohammed, Supantha Sinha, A.K. Mishra, G.N. Reddy, T. Vijaya Bhaskar Reddy, A.P. Mayee, A. Rajarajan, Rupesh Kumar, Mrs. Pankhuri Shrivastava, Rajeev Sharma, Ms. Neelam Sharma, V.N. Raghupathy, Manendra Pal Gupta, Md. Apzal Ansari, Amol Chitale, Ms. Pragya Baghel, P.V. Dinesh, Ms. Sindhu T.P., Bineesh K., Mukund G P. Unny, Ashwini Kumar Singh, M/s. India Law, Mahesh Thakur, Ms. Sheffali Chaudhary, Mrs. Vipasha Singh, Dr. Sushil Balwada, Ramesh Allanki, Syed Ahmad Naqvi, Ms. Savita Devi, N.V.R.S.S.S. Vara Prasad, Ms. Aruna Gupta, Ganni Krishna, R. Radha Krishna, Ms. Shilp Gupta, C.S.N. Mohan Rao, Anil Kumar Mishra-I, Shivaji M. Jadhav, Ashwarya Sinha, Ravindra Keshavrao Adsure, Mrs. Bina Gupta, H
CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 527 v. UNION OF INDIA AND OTHERS
Dharmendra Kumar Sinha, Ramesh Babu M.R., Rakesh K. Sharma, A Dushyant Parashar, Lakshmi Raman Singh, Ms. Udita Singh, Vivek Singh, A. Venayagam Balan, Alok Shukla, M/s. Arputham Aruna and Co., E.R. Kumar, Krishna Srinivasan, Ms. Geeti Aara, Udayaditya Banerjee, Sudipto Sircar, Bhav Ratab, Ms. Tanya Chaudhry, Raghav Bansal, Ms. Nitika Pandey, M/s. Parekh & Co., Ambhoj Kumar Sinha, Amit B Anand Tiwari, Ms. Shakun Sharma, K.K. Singh, Ms. Mary Mitzy, Ms. E.R. Sumathy, M/s. Lawyer’s Knit & Co., K.K. Mani, Rameshwar Prasad Goyal, Y. Raja Gopala Rao, Vipin Kumar Jai, Ms. Binu Tamta, Ms. Rekha Pandey, Gurmeet Singh Makker, Ms. Suruchii Aggarwal, M.Y. Deshmukh, Amit Kumar, Ms.Sushma Suri, T.C. Sharma, Prashant Bhushan, Mrs. Vaijayanthi Girish, Ms. Pragati Neekhra, Nishant C Ramakantrao Katneshwarkar, K.V. Vijayakumar, B. Balaji, Gopal Singh, Kaushik Poddar, R. Chandrachud, Ms. Hemantika Wahi, Ms. Astha Tyagi, Ms. Farah Fathima, Advs. for the appearing parties.
Judgment
The Judgment of the Court was delivered by ARUN MISHRA, J. D
11. Most of the cases have a chequered history. Initially, petitioners have questioned four notifications - two notifications dated 21.12.2010 issued by Medical Council of India (for short, ‘the MCI’) and other two notifications dated 31.5.2012, issued by Dental Council of India (for short, ‘the DCI’). The MCI by virtue of Regulations on Graduate Medical E Education (Amendment) 2010, (Part II) notified by the Government of India, amended theRegulationson Graduate Medical Education, 1997.Similarly, the other notification issued by MCIcalled “Post-Graduate Medical Education (Amendment) Regulation, 2010 (Part-II)” to amend the Post Graduate Medical Education Regulations, 2000. The regulations F came into force on their publication in the Official Gazette. The other two notifications dated 31.5.2012 issued by DCI were relating to admission in the BDS and MDS courses.
22. The MCI issued notifications in exercise of power conferred by Section 33 of the Indian Medical Council Act, 1956 (for short, ‘the G Act of 1956’). The amendments were made in the Regulation on Graduate Medical Education, 1997. The change was made in Clause 5 in Chapter II of the Regulations. Clause 5 provided for procedure for selection thus:
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A “6. In Chapter II, Clause 5 under the heading “Procedure for selection to MBBS Course shall be as follows” shall be substituted as under: (i) There shall be a single eligibility-cum-entrance examination, namely, ‘National Eligibility-cum-Entrance Test for admission to B MBBS course’ in each academic year. The overall superintendence, direction, and control of the National Eligibility- cum-Entrance Test shall vest with the Medical Council of India. However, the Medical Council of India, with the previous approval of the Central Government, shall select organisation(s) to conduct ‘National Eligibility-cum-Entrance Test for admission to MBBS C course. (ii) In order to be eligible for admission to MBBS course for a particular academic year, it shall be necessary for a candidate to obtain minimum of 50% (fifty percent) marks in each paper of National Eligibility-cum-Entrance Test held for the said academic D year. However, in respect of candidates belonging to the Scheduled Castes, the Scheduled Tribes, and the Other Backward Classes, the minimum percentage shall be 40% (forty percent) in each paper, and in respect of candidates with locomotory disability of lower limbs, the minimum percentage marks shall be 45% (forty- E five percent) in each paper of National Eligibility-cum-Entrance Test: Provided when sufficient number of candidates belonging to respective categories fail to secure minimum marks as prescribed in National Eligibility-cum-Entrance Test in any academic year F for admission to MBBS course, the Central Government in consultation with the Medical Council of India may at its discretion lower the minimum marks required for admission to MBBS course for candidates belonging to respective categories and marks so lowered by the Central Government shall be applicable for the said year only. G (iii) The reservation of seats in medical colleges for respective categories shall be as per applicable laws prevailing in States/ Union Territories. An all India merit list as well as State-wise merit list of the eligible candidates shall be prepared on the basis of the marks obtained in National Eligibility-cum-Entrance Test H
CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 529 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]
and candidates shall be admitted to MBBS course from the said lists only. (iv) No candidate who has failed to obtain the minimum eligibility marks as prescribed in sub-clause (ii) above shall be admitted to MBBS course in the said academic year. (v) All admissions to MBBS course within the respective categories shall be based solely on marks obtained in the National Eligibility- cum-Entrance Test.” (emphasis supplied)
33. Similarly, amendments to the Post Graduate Medical Education C Regulations, 2000 were made. The relevant portion of the amendments made are extracted hereunder: “No. MCI. 18(1)/2010-Med./49070. — In exercise of the powers conferred by Section 33 of the Indian Medical Council Act, 1956 (102 of 1956), the Medical Council of India with the previous D approval of the Central Government hereby makes the following regulations to further amend the ‘Postgraduate Medical Education Regulations, 2000’, namely:
1. (i). These Regulations may be called ‘the Postgraduate Medical Education (Amendment) Regulations, 2010 (Part II)’. E (ii) They shall come into force from the date of their publication in the Official Gazette.
2. In the ‘Postgraduate Medical Education Regulations, 2000’, the following additions/ modifications/ deletions/ substitutions, shall be as indicated therein: F
3. Clause 9 under the heading ‘SELECTION OF POSTGRADUATE STUDENTS’ shall be substituted as under: “9. Procedure for selection of candidate for Postgraduate courses shall be as follows: G (i) There shall be a single eligibility-cum-entrance examination, namely, National Eligibility-cum-Entrance Test for admission to Postgraduate Medical Courses in each academic year. The overall superintendence, direction and control of National Eligibility-cum-Entrance Test shall vest with Medical Council H
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A of India. However, the Medical Council of India, with the previous approval of the Central Government shall select organisation(s) to conduct National Eligibility-cum-Entrance Test for admission to Postgraduate courses”’.”
44. Similar notifications were issued by DCI providing for procedure for selection of candidates for MBBS Course and Post-graduate Course and also for BDS and MDS.Thus, National Eligibility-cum-Entrance Test (for short, ‘the NEET’) for admission to the MBBS course and the Post-graduate course and similarly for BDS and MDS came to be introduced. Now the statutory provisions underSection 10D of the Act of 1956 providing for uniform entrance examination for undergraduate and post-graduate level which came into force on 24.5.2016. Section 10D is extracted hereunder: “10D.Uniform entrance examination for undergraduate and post-graduate level.—There shall be conducted a uniform entrance examination to all medical educational institutions at the undergraduate level and post-graduate level through such designated authority in Hindi, English and such other languages and in such manner as may be prescribed and the designated authority shall ensure the conduct of uniform entrance examination in the aforesaid manner: E Provided that notwithstanding any judgment or order of any court, the provisions of this section shall not apply, in relation to the uniform entrance examination at the undergraduate level for the academic year 2016-17 conducted in accordance with any regulations made under this Act, in respect of the State F Government seats (whether in Government Medical College or in a private Medical College) where such State has not opted for such examination.” (emphasis supplied) Section 10D of the Dentists Act, 1948,containing similar provisions with respect of uniform entrance examination hasalso been inserted, same is extracted hereunder: “10D. Uniform entrance examination for undergraduate and post-graduate level.—There shall be conducted a uniform entrance examination to all dental educational institutions at the undergraduate level and post-graduate level through such
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designated authority in Hindi, English and such other languages and in such manner as may be prescribed and the designated authority shall ensure the conduct of uniform entrance examination in the aforesaid manner: Provided that notwithstanding any judgment or order of any court, the provisions of this section shall not apply, in relation to the uniform entrance examination at the undergraduate level for the academic year 2016-17 conducted in accordance with any regulations made under this Act, in respect of the State Government seats (whether in Government Dental College or in a private Dental College) where such State has not opted for such examination.” C
55. The Regulations on Graduate Medical Education, 1997 have also been amended by Regulations on Graduate Medical Education (Amendment) 2017. The admission to the medical course eligibility criteria has been prescribed by amended Clause 4. Following has been substituted: D “3. In Clause 4, under the heading Admission to the Medical Course-eligibility criteria, and in sub-clause 4 (1) & (1A), the following shall be substituted:
4. Admission to the Medical Course-Eligibility Criteria: No candidate shall be allowed to be admitted to the Medical Curriculum E proper of first Bachelor of Medicine and Bachelor of Surgery course until he /she has qualified the NationalEligibility Entrance Test, and he/she shall not be allowed to appear for the National Eligibility-Cum-Entrance Test until: (1) He/she shall complete the age of 17 years on or before F 31stDecember of the year of admission to the MBBS. (1A) He/She has obtained a minimum of marks in National Eligibility-Cum-Entrance Test as prescribed in Clause 5 of Chapter II.” (emphasis supplied) G In Chapter II, Clause 5 under the heading “Procedure for selection to MBBS” has been substituted by MCI in 2017 as under: “7. In Chapter-II, Clause 5 under the heading “Procedure for selection to MBBS course shall be as follows” shall be substituted as under:- H
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A “Procedure for selection to MBBS course shall be as follows:” (1) There shall be a uniform entrance examination to all medical educational institutions at the undergraduate level namely ‘National Eligibility-cum-Entrance Test for admission to MBBS course in B each academic year and shall be conducted under overall supervision of the Ministry of Health & Family Welfare, Government of India. (2) The “designated authority” to conduct the ‘National Eligibility- Cum- Entrance Test’ shall be the Central Board of Secondary C Education or any other body/organization so designated by the Ministry of Health & Family Welfare, Government of India, in consultation with the Medical Council of India. (3) The language and manner of conducting the ‘National Eligibility-Cum-Entrance Test’ shall be determined by the D “designated authority” in consultation with the Medical Council of India and the Ministry of Health and Family Welfare, Government of India. (4) In order to be eligible for admission to MBBS Course for a academic year, it shall be necessary for a candidate to obtain E minimum of marks at 50thpercentile in ‘National Eligibility-cum- Entrance Test to MBBS course’ held for the said academic year. However, in respect of candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, the minimum marks shall be at 40thpercentile. In respect of candidates with benchmark disabilities specified under the Rights of Persons with Disabilities F Act, 2016, in terms of Clause 4(3) above, the minimum marks shall be at 45th percentile for General Category candidates and 40th percentile for SC/ST/OBC candidates. The percentile shall be determined on the basis of highest marks secured in the All- India common merit list for admission in ‘National Eligibility-cum- G Entrance Test for admission to MBBS course. Provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in National Eligibility-cum-Entrance Test held for any academic year for admission to MBBS Course, the Central Government in consultation with Medical Council of India may at its discretion H
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lower the minimum marks required for admission to MBBS Course A for candidates belonging to respective categories and marks so lowered by the Central Government shall be applicable for the said academic year only. (5) The reservation of seats in Medical Colleges for respective categories shall be as per applicable laws prevailing in States/ B Union Territories. An All India merit list as well as State/Union Territory-wise merit list of the eligible candidates shall be prepared on the basis of marks obtained in ‘National Eligibility-cum-Entrance Test and candidates shall be admitted to MBBS course from the said lists only. C (6) No candidate who has failed to obtain the minimum eligibility marks as prescribed in Sub-clause (4) above shall be admitted to MBBS course in the said academic year. (7) No authority/institution shall admit any candidate to the MBBS course in contravention of the criteria/procedure as laid down by D these Regulations and/or in violation of the judgments passed by the Hon’ble Supreme Court in respect of admissions. Any candidate admitted in contravention/violation of aforesaid shall be discharged by the Council forthwith. The authority/institution which grants admission to any student in contravention /violation of the Regulations and/or the judgments passed by the Hon’ble Supreme E Court, shall also be liable to face such action as may be prescribed by the Council, including surrender of seats equivalent to the extent of such admission made from its sanctioned intake capacity for the succeeding academic year/years. (8) All admission to MBBS course within the respective categories F shall be based solely on the marks obtained in the ‘National Eligibility-Cum-Entrance Test.” (emphasis supplied)
66. Initially, the matters filed in 2012-2013 were heard by a Bench G of three Judges, and the matters were decided vide judgment and order dated 18.7.2013. As per the majority opinion,the petitions were allowed. The notifications issued by MCI and DCI providing for NEET were quashed. However, the admissions, which were made, were not interfered with. Review petitions were filed, which were entertained and were ultimately allowed on 11.4.2016, and judgment dated 18.7.2013 was H recalled.
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77. In Writ Petition (C) No.443 of 2016, prayer has been made to protect the rights of the petitioner-institutions guaranteed under Articles 14, 15, 25, 26 and 30 of the Constitution of India.In Writ Petition (C) No.750 of 2016, prayer is made to direct the respondents to conduct centralized counselling for admission to all Graduate Medical and Dental Courses throughout the country. In Transferred Case (C) No.25 of 2019, B it is stated that vires of the provisions of Maharasthra Unaided Private Professional Educational Institution (Regulation of Admissions & Fees) Act, 2015, applying them to Unaided Private MinorityProfessional Educational Institutions are bad in law. In S.L.P. (C) No.28223 of 2016, provisions have been questioned on the ground that they cannot take away the rights guaranteed under Articles 19(1)(g) and 30 read with Articles 25, 26 and 29(1) of the Constitution of India.
88. Initially, the questionswere raised that MCI and DCI could not have introduced NEET as the same offends the fundamental rights guaranteed under Article19(1)(g) of the Constitution of India and the rights of religious and linguistic minorities to establish and administer educational institutions of their choice as guaranteed under Article 30 Constitution of India. Thus, subordinate legislation couldnot have overriding effect over the fundamental rights guaranteed under Articles 25, 26, 29(1), and 30 of the Constitution of India. Now the amendment made could not take away or abridge the aforesaid rights of minorities. E The right to admit students is one of the fundamental rights, thus, rider of clearing NEET examination could not have been imposed.
99. It was urged on behalf of petitioners that the impugned notifications violate the fundamental rights of an unaided minority institution to “establish and administer educational institutions of their choice” protected under Article 30 read with Articles 25 and 26 of the Constitution of India, which includes the right to admit students of their own choice. The doctrine of limited Government provides that a citizen’s liberty and autonomy is the central notion of the Constitution of India and there is an inherent limitation on the State’s involvement in matters of admissions of students. The NEET prescribes no alternative to the institution, impinges upon the fundamental rights of an unaided minority institution to establish and administer educational institution of their choice.
1010. It was furtherurged on behalf of petitioners that State has no power to compel an unaided minority institution to admit students through H a single centralized national examination such as NEET. The unaided
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minority professional colleges have the fundamental rights to choose the method and manner in which to admit its students, subject to satisfying the triple test of having a fair, transparent, and non-exploitative process.
1111. It was also argued on behalf of petitioners that they have a time-tested admission procedure without any complaints. Their process is fair and transparent, and they have a fundamental right to protect autonomy and reputation by continuing to admit students using their admission process. The NEET cannot be the only parameter to determine the merit of a student. Some of the institutions are providing best medical professional by having their procedure for admission. They have fundamental rights under Articles 19(1)(g) and 30(1) of the Constitution to conduct and manage the affairs of the institution. The State, while imposing reasonable restrictions, can fix the threshold criterion of merit, but cannot restrict the petitioners from having any additional criteria of merit over and above the threshold fixed by the State. The restriction violates the test of proportionality.
1212. The petitioners have also referred to the existing positionconcerning centralised examination for professional courses in India and internationally,to hold entrance examination cannot be compulsion, it has to be voluntarily. They have relied upon Common Law Admission Test (CLAT) - a system of examination for admission in the Law Colleges. Reference has also been made to the admission process followed in Indian Institute of Technology (IITs), National Institute of Technology (NITs) and Indian Institute of Management (IIMs). NEET is the first of its kind, both in India and globally, where all institutions are compelled by the State to follow a single admission procedure. Some of the institutions are having an excellent record. They follow the gurukul tradition. With the introduction of NEET in 2016-17, F institutions have been compelled to admit students through NEET instead of their method. Some of them have the All India Entrance Test. They have their unique procedure of admission for MBBS as well as Post Graduation. The system of examination of some of the institutions is wider on All India Basis, and they test general ability also, whereas, in G NEET, evaluation is based on three subjects, namely, Physics, Biology, and Chemistry. They have an elaborate procedure of the assessment, and they do not admit students only based on their theoretical knowledge. Some of them are the best medical educational institutions in the country. There is not even a single allegation of maladministration against some H
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A of the reputed institutions. The principles, which govern the selection, are eligibility, suitability, and distributive justice. The selection of candidates is an important factor to the medical colleges to suit their requirements in a particular field.
1313. There are various issues which have arisen according to the admission given for post-graduate examination after the introduction of NEET. Now, in some of the specialised institutions, they are not getting good doctors to take care of patients, for example, in the Oncology Department. Some of the candidates are not able to bear the burden of the procedure and have expressed their inability to go with very sick patients. Some of them were not able to undertake procedures in a sterile manner to avoid infections. Similar is the position in other super-speciality departments. There are complaints of lack of clinical competence among students admitted to speciality courses like general medicine.
1414. The petitioners further submitted that they have a fundamental right to admit students of their own choice under Article 30 of the D Constitution. It is submitted that the admission procedure adopted by them passes the triple test, i.e., fair, transparent, and non-exploitative. Various orders were passed by this Court recognising fair method adopted in individual institutions while admitting students through their admission procedure as apparent from interim orders passed in the years 1993, E 1994, 1995, and 1998.
1515. This Court on 28.4.2016 passed an order in Sankalp Charitable Trust and Anr. v. Union of India and Ors., (Writ Petition (C) No.261 of 2016), in which it was clarified that order passed in the said matter shall not affect the hearing of the petitions. Most of petitions remained pending after recall of the order earlier passed by this Court.As per appellants, the ratio laid down in Modern Dental College and Research Centre and Ors. v. State of Madhya Pradesh and Ors., (2016) 7 SCC 353, is not applicable. While deciding the said case, this Court did not deal with the rights of unaided minority institutions. A Division Bench of Madras High Court held that the procedure of admission of some of the institutions is fair, transparent and non-exploitative. Reliance has been placed on the T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors., (2002) 8 SCC 481 to contend that State have minimal interference and if possible, to be made only to maintain academic standards. The right to admit students is one of the fundamental rights recognized by this Court. The challenge in Modern Dental College
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and Research Centre (supra) was to the State level examination, i.e., A the Common Entrance Test (CET). The holding of NEET would not be in the interest of the academic standard of premier medical institutions in the country. The change in admission procedure of students would result in a sharp decline in the current standards of excellence in education maintained at the institution, that would not be in public interest. The B admission procedure followed by petitioners is head and shoulders above the NEET. The concept of limited government has also been relied upon by referring to the decisions in Gobind v. State of Madhya Pradesh and Anr., (1975) 2 SCC 148 and K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1. Reliance has also been placed on the Islamic Academy of Education and Ors. v. State of Karnataka and Ors., (2003) 6 SCC C 697 and P.A. Inamdar and Ors. v. State of Maharashtra and Ors., (2005) 6 SCC 537.
1616. It was argued that provisions of the MCI and DCI Acts and regulations which have been amended during the pendency of the petitions cannot take away the right of the institutions to admit their D students under Article 30 of the Constitution of India. Thus, the prescription of NEET cannot be said to be permissible for the institutions in question.
1717. On behalf of respondents, reliance has been placed on Sankalp Charitable Trust and Anr. v. Union of India and Ors., (2016) 7 SCC 487, Modern Dental College and Research Centre (supra) and P.A. E Inamdar (supra). It was also argued that Section 10D has been inserted in the Act of 1956 it provides that there shall be a uniform common entrance conducted by the designated authority. The main reasoning of this Court in Christian Medical College Vellore v. Union of India, (2014) 2 SCC 305, which decision has been recalled, was that uniform common entrance examination could not be introduced by way of subordinate legislation and under the Act of 1956 and MCI had no power to conduct the said examination. After the introduction of Section 10D, both the said lacunas have been plugged. The introduction of NEET is constitutionally valid. In Modern Dental College and Research Centre (supra), the Court considered the question of conduct of examination by private medical colleges in the State of Madhya Pradesh for admitting students in their colleges. In State of Madhya Pradesh v. JainarayanChouksey and Ors., (2016) 9 SCC 412, while deciding the contempt petition it was observed that judgment dated 2.5.2016 passed in the case of Modern Dental College and Research Centre H
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Footnotes
1818. The primary issue is whether by providing centralised examination system – NEET for admission to MBBS, PG, BDS and MDS by virtue of the provisions made in the Act and regulations, there is violation of fundamental rights guaranteed under Articles 19(1)(g), 25, 26, 29(1) and 30 of the Constitution of India.
1919. We first advert to take note that various decisions rendered by this Court in respect of the right of minority as stated under Article 30 of the Constitution of India.
2020. In ReTheKerala Education Bill, 1957, AIR 1958 SC 956, question arose concerning right of the Government to prescribe qualification to be possessed by the incumbents for appointment as teachers in aided or recognized schools. The State Public Service Commission was empowered to select candidates for appointment as teachers in Government and aided schools. The Court opined that minority
CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 539 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]
cannot ask for the aid or recognition for an educational institution without competent teachers and fair standards. The choice does not necessarily militate against the claim of the State to insist on reasonable regulations to ensure the excellence of the institutions to be aided or even recognized. The Court held thus: “(29) Their grievances are thus stated: The gist of the right of administration of a school is the power of appointment, control, and dismissal of teachers and other staff. But under the said Bill such power of management is practically taken away. Thus the manager must submit annual statements (Cl. 5). The fixed assets of the aided schools are frozen and cannot be dealt with except with the permission of the authorised officer (Cl. 6). No educational agency of an aided school can appoint a manager of its choice and the manager is completely under the control of the authorised officer, for he must keep accounts in the manner he is told to do and to give periodical inspection of them and on the closure of the school the accounts must be made over to the authorised officer D (Cl. 7). All fees etc. collected will have to be made over to the Government (Cl. 8(3)). Government will take up the task of paying the teachers and the non-teaching staff (Cl. 9). Government will prescribe the qualification of teachers (Cl. 10). The school authorities cannot appoint a single teacher of their choice, but must appoint persons out of the panel settled by the Public Service E Commission (Cl. 11). The school authorities must provide amenities to teachers and cannot dismiss, remove, reduce, or even suspend a teacher without the previous sanction of the authorised officer (Cl. 12). …… (31) We are thus faced with a problem of considerable complexity apparently difficult of solution. There is, on the one hand the minority rights under Art. 30(1) to establish and administer educational institutions of their choice and the duty of the Government to promote education, there is, on the other side the obligation of the State under Art. 45 to endeavour to introduce free and compulsory education. We have to reconcile between these two conflicting interests and to give effect to both if that is possible and bring about a synthesis between the two. The directive principles cannot ignore or override the fundamental rights but must, as we have said, subserve the fundamental rights. We have already observed H
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A that Art. 30(1) gives two rights to the minorities, (1) to establish and (2) to administer educational institutions of their choice. The right to administer cannot obviously include the right to maladminister. The minority cannot surely ask for aid or recognition for an educational institution run by them in unhealthy surroundings, without any competent teachers, possessing any semblance of qualification, and which does not maintain even a fair standard of teaching or which teaches matters subversive of the welfare of the scholars. It stands to reason, then, that the constitutional right to administer an educational institution of their choice does not necessarily militate against the claim of the State to insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of the institutions to be aided. Learned Attorney-General concedes that reasonable regulations may certainly be imposed by the State as a condition for aid or even for recognition......Clauses 6, 7, 9, 10, 11, 12, 14, 15, and 20 relate to the management of aided schools. Some of these provisions, D e.g., 7, 10, 11(1), 12(1)(2)(3) and (5) may easily be regarded as reasonable regulations or conditions for the grant of aid. Clauses 9, 11(2) and 12(4) are, however, objected to as going much beyond the permissible limit. It is said that by taking over the collections of fees etc., and by undertaking to pay the salaries of the teachers and other staff the Government is in reality confiscating the school fund and taking away the prestige of the school, for none will care for the school authority. Likewise Cl. 11 takes away an obvious item of management, for the manager cannot appoint any teacher at all except out of the panel to be prepared by the Public Service Commission which, apart from the question of its power of taking up such duties, may not be qualified at all to select teachers who will be acceptable to religious denominations and in particular sub-cl. (2) of that clause is objectionable for it thrusts upon educational institutions of religious minorities teachers of Scheduled Castes who may have no knowledge of the tenets of their religion and maybe otherwise weak educationally. Power of dismissal, removal, reduction in rank, or suspension is an index of the right of management, and that is taken away by Cl. 12(4). These are, no doubt, serious inroads on the right of administration and appear perilously near violating that right. But considering that those provisions are applicable to all educational institutions H
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and that the impugned parts of Cls. 9, 11 and 12 are designed to give protection and security to the illpaid teachers who are engaged in rendering service to the nation and protect the backward classes, we are prepared, as at present advised, to treat these clauses 9, 11(2) and 12(4) as permissible regulations which the State may impose on the minorities as a condition for granting aid to their educational institutions. We, however, find it impossible to support Cls. 14 and 15 of the said Bill as mere Regulations. The provisions of those clauses may be totally destructive of the rights under Art. 30(1). It is true that the right to aid is not implicit in Art. 30(1) but the provisions of those clauses, if submitted to on account of their factual compulsion as condition of aid, may easily be violative of Art. 30(1) of the Constitution. Learned Counsel for the State of Kerala recognizes that Cls. 14 and 15 of the Bill may annihilate the minority communities’ right to manage educational institutions of their choice but submits that the validity of those clauses is not the subjectmatter of question 2. But, as already explained, all newly established schools seeking aid or recognition are, by Cl. 3(5), made subject to all the provisions of the Act. Therefore, in a discussion as to the constitutional validity of Cl. 3(5) a discussion of the validity of the other clauses of the Bill becomes relevant, not as and by way of a separate item but in determining the validity of the provisions of Cl. 3(5). In our opinion, sub-cl. 3 of Cl. 8 and E Cls. 9, 10, 11, 12 and 13 being merely regulatory do not offend Art. 30(1), but the provisions of sub-cl. (5) of cl. 3 by making the aided educational institutions subject to Cls. 14 and 15 as conditions for the grant of aid do offend against Art. 30(1) of the Constitution.” (emphasis supplied) F
2121. In Rev. SidhajbhaiSabhai and Ors. v. State of Bombay and Anr., (1963) 3 SCR 837, the Court again considered the matter and observed that educational institutions cater to the needs of the citizens or section thereof. Regulation made in the real interests of efficiency of instruction, discipline, health, sanitation, morality, public order, and the G like may undoubtedly be imposed. Such regulations are not restrictive on the substance of the right, which is guaranteed, they secure the proper functioning of the institution in the matter of education. It was also observed that regulation must satisfy a dual test-the test of reasonableness and that it is regulative of the educational character of the institution and H
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A is conducive to making the institution a capable vehicle of education for the minority community or other persons who resort to it. In Rev. Father W. Proost and Ors. v. State of Bihar and Ors., AIR 1969 SC 465, the Court observed thus: “8. In our opinion, the width of Article 30(1) cannot be cut down by introducing in it considerations on which Article 29(1) is based. The latter article is a general protection which is given to minorities to conserve their language, script, or culture. The former is a special right to minorities to establish educational institutions of their choice. This choice is not limited to institution seeking to conserve language, script, or culture, and the choice is not taken away if the minority community having established an educational institution of its choice also admits members of other communities. That is a circumstance irrelevant for the application of Article 30(1) since no such limitation is expressed and none can be implied. The two articles create two separate rights, although it is possible that they may meet in a given case.”
2222. In Ahmedabad St. Xavier’s College Society and Anr. v. State of Gujarat and Anr., (1974) 1 SCC 717, a college was run by the minority. A Bench of 9-Judges of this Court considered the question whether Sections 40 and 41 of the Gujarat University Act, 1949 violated E Section 30, which provided all colleges within the University area would be governed by the statutes of the University which may provide for minimum educational qualifications for teachers and tutorial staff. The University may approve the appointments of teachers to coordinate and regulate the facilities provided and expenditure incurred. The Court opined that regulation which serves the interests of the teachers are of paramount importance in good administration,education should be a great cohesive force in developing integrity of the nation, thus: “19. The entire controversy centres round the extent of the right of the religious and linguistic minorities to administer their educational institutions. The right to administer is said to consist of four principal matters. First is the right to choose its managing or governing body. It is said that the founders of the minority institution have faith and confidence in their own committee or body consisting of persons elected by them. Second is the right to choose its teachers. It is said that minority institutions want teachers to have compatibility with the ideals, aims, and aspirations of the
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institution. Third is the right not to be compelled to refuse admission to students. In other words, the minority institutions want to have the right to admit students of their choice subject to reasonable regulations about academic qualifications. Fourth is the right to use its properties and assets for the benefit of its own institution.
20. The right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not an absolute right. This right is not free from regulation. Just as regulatory measures are necessary for maintaining the educational character and content of minority institutions, similarly, regulatory measures are necessary for ensuring orderly, efficient, and sound administration. Das, C.J., in the Kerala Education Bill C case(supra) 1959 SCR 995: AIR 1958 SC 956, summed up in one sentence the true meaning of the right to administer by saying that the right to administer is not the right to mal-administer.
30. Educational institutions are temples of learning. The virtues of human intelligence are mastered and harmonised by education. D Where there is complete harmony between the teacher and the taught, where the teacher imparts and the student receives, where there is complete dedication of the teacher and the taught in learning, where there is discipline between the teacher and the taught, where both are worshippers of learning, no discord or challenge will arise. An educational institution runs smoothly when the teacher and the taught are engaged in the common ideal of pursuit of knowledge. It is, therefore, manifest that the appointment of teachers is an important part in educational institutions. The qualifications and the character of the teachers are really important. The minority institutions have the right to administer institutions. This right implies the obligation and duty of the minority institutions to render the very best to the students. In the right of administration, checks, and balances in the shape of regulatory measures are required to ensure the appointment of good teachers and their conditions of service. The right to administer is to be tempered with regulatory measures to facilitate smooth administration. The best administration will reveal no trace or colour of minority. A minority institution should shine in exemplary eclectism in the administration of the institution. The best compliment that can be paid to a minority institution is that it does not rest on or proclaim its minority character. H
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A 31. Regulations which will serve the interests of the students, egulations which will serve the interests of the teachers are of paramount importance in good administration. Regulations in the interest of efficiency of teachers, discipline, and fairness in administration are necessary for preserving harmony among affiliated institutions. B
46. The ultimate goal of a minority institution too imparting general secular education is advancement of learning. This Court has consistently held that it is not only permissible but also desirable to regulate everything in educational and academic matters for achieving excellence and uniformity in standards of education. C
47. In the field of administration it is not reasonable to claim that minority institutions will have complete autonomy. Checks on the administration may be necessary in order to ensure that the administration is efficient and sound and will serve the academic needs of the institution. The right of a minority to administer its educational institution involves, as part of it, a correlative duty of good administration.
90. We may now deal with the scope and ambit of the right guaranteed by clause (1) of Article 30. The clause confers a right on all minorities, whether they are based on religion or language, to establish and administer educational instructions of their choice. The right conferred by the clause is in absolute terms and is not subject to restrictions, as in the case of rights conferred by Article 19 of the Constitution. The right of the minorities to administer educational institutions does not, however, prevent the making of reasonable regulations in respect of those institutions. The regulations have necessarily to be made in the interest of the institution as a minority educational institution. They have to be so designed as to make it an effective vehicle for imparting education. The right to administer educational institutions can plainly not include the right to maladminister. Regulations can be made to prevent the housing of an educational institution in unhealthy surroundings as also to prevent the setting up or continuation of an educational institution without qualified teachers. The State can prescribe regulations to ensure the excellence of the institution. Prescription of standards for educational institutions does not militate against the right of the minority to administer the institutions.
CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 545 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]
Regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order, and the like may undoubtedly be imposed. Such regulations are not restrictions on the substance of the right, which is guaranteed: they secure the proper functioning of the institution, in matters educational [see observations of Shah, J. in Rev. SidhajbhaiSabhai(supra), B [(1963 3 SCR 837]p. 850]. Further, as observed by Hidyatullah, C.J. in the case of Very Rev. Mother Provincial (supra) [(1971) 1 SCR 734], the standards concern the body politic and are dictated by considerations of the advancement of the country and its people. Therefore, if universities establish syllabi for examinations, they must be followed, subject, however, to special subjects which the institutions may seek to teach, and to a certain extent, the State may also regulate the conditions of employment of teachers and the health and hygiene of students. Such regulations do not bear directly upon management as such, although they may indirectly affect it. Yet the right of the State to regulate education, educational standards, and allied matters cannot be denied. The minority institutions cannot be allowed to fall below the standards of excellence expected of educational institutions, or under the guise of exclusive right of management, to decline to follow the general pattern. While the management must be left to them, they may be compelled to keep in step with others. E
92. A regulation which is designed to prevent maladministration of an educational institution cannot be said to offend Clause (1) of Article 30. At the same time, it has to be ensured that under the power of making regulations, nothing is done as would detract from the character of the institution as a minority educational F institution or which would impinge upon the rights of the minorities to establish and administer educational institutions of their choice. The right conferred by Article 30(1) is intended to be real and effective and not a mere pious and abstract sentiment; it is a promise of reality and not a teasing illusion. Such a right cannot be allowed to be whittled down by any measure masquerading as G a regulation. As observed by this Court in the case of Rev. SidhajbhaiSabhai (supra) [(1963 3 SCR 837], regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as minority H
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A institution effective as an educational institution. Such regulation must satisfy a dual test — the test of reasonableness, and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it. B
94. If a request is made for the affiliation or recognition of an educational institution, it is implicit in the request that the educational institution would abide by the regulations which are made by the authority granting affiliation or recognition. The said authority can always prescribe regulations and insist that they should be complied with before it would grant affiliation or recognition to an educational institution. To deny the power of making regulations to the authority concerned would result in robbing the concept of affiliation or recognition of its real essence. No institution can claim affiliation or recognition until it conforms to a certain standard. The fact that the institution is of the prescribed standard indeed inheres in the very concept of affiliation or recognition. It is, therefore, permissible for the authority concerned to prescribe regulations which must be complied with before an institution can seek and retain affiliation and recognition. Question then arises whether there is any limitation on the prescription of regulations for minority educational institutions. So far as this aspect is concerned, the authority prescribing the regulations must bear in mind that the Constitution has guaranteed a fundamental right to the minorities for establishing and administering their educational institutions. Regulations made by the authority concerned should not impinge upon that right. Balance has, therefore, to be kept between the two objectives, that of ensuring the standard of excellence of the institution and that of preserving the right of the minorities to establish and administer their educational institutions. Regulations which embrace and reconcile the two objectives can be considered to be reasonable.” G (emphasis supplied) The Court held that it is permissible for the State to prescribe qualifications for teachers. It observed: “176. Recognition or affiliation is granted on the basis of the excellence of an educational institution, namely, that it has reached
CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 547 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]
the educational standard set up by the university. Recognition or affiliation is sought for the purpose of enabling the students in an educational institution to sit for an examination to be conducted by the university and to obtain a degree conferred by the university.For that purpose, the students should have to be coached in such a manner so as to attain the standard of education prescribed by the university. Recognition or affiliation creates an interest in the university to ensure that the educational institution is maintained for the purpose intended and any regulation which will subserve or advance that purpose will be reasonable and no educational institution established and administered by a religious or linguistic minority can claim recognition or affiliation without submitting to those regulations. That is the price of recognition or affiliation: but this does not mean that it should submit to a regulation stipulating for surrender of a right or freedom guaranteed by the Constitution, which is unrelated to the purpose of recognition or affiliation. In other words, recognition or affiliation is a facility which the university grants to an educational institution, for the purpose of enabling the students there to sit for an examination to be conducted by the university in the prescribed subjects and to obtain the degree conferred by the university, and therefore, it stands to reason to hold that no regulation which is unrelated to the purpose can be imposed. If besides recognition or affiliation, an educational institution conducted by a religious minority is granted aid, further regulations for ensuring that the aid is utilized for the purpose for which it is granted will be permissible. The heart of the matter is that no educational institution established by a religious or linguistic minority can claim total immunity from regulations by the legislature or the university if it wants affiliation or recognition, but the character of the permissible regulations must depend upon their purpose. As we said, such regulations will be permissible if they are relevant to the purpose of securing or promoting the object of recognition or affiliation. There will be borderline cases where it is difficult to decide whether a regulation really subserves the purpose of recognition or affiliation. But that does not affect the question of principle. In every case, when the reasonableness of a regulation comes up for consideration before the Court, the question to be asked and answered is whether the regulation is calculated to subserve or will in effect subserve the H
p. 548
A purpose of recognition or affiliation, namely, the excellence of the institution as a vehicle for general secular education to the minority community and to other persons who resort to it. The question whether a regulation is in the general interest of the public has no relevance if it does not advance the excellence of the institution as a vehicle for general secular education as, ex-hypothesi, the only permissible regulations are those which secure the effectiveness of the purpose of the facility, namely, the excellence of the educational institutions in respect of their educational standards. This is the reason why this Court has time and again said that the question whether a particular regulation is calculated to advance the general public interest is of no consequence if it is not conducive to the interests of the minority community and those persons who resort to it.
197. On the second question, I have nothing significant to add to what has fallen from My Lord the Chief Justice. I am in entire agreement with the view that, although, Articles 29 and 30 may supplement each other so far as certain rights of minorities are concerned, yet, Article 29 of the Constitution does not, in any way, impose a limit on the kind or character of education which a minority may choose to impart through its Institution to the children of its own members or to those of others who may choose to send their children to its schools. In other words, it has a right to impart a general secular education. I would, however, like to point out that, as rights and duties are correlative, it follows, from the extent of this wider right of a minority under Article 30(1) to impart even general or non-denominational secular education to those who may not follow its culture or subscribe to its beliefs, that, when a minority Institution decides to enter this wider educational sphere of national education, it, by reason of this free choice itself, could be deemed to opt to adhere to the needs of the general pattern of such education in the country, at least whenever that choice is made in accordance with statutory provisions. Its choice to impart an education intended to give a secular orientation or character to its education necessarily entails its assent to the imperative needs of the choice made by the State about the kind of “secular” education which promotes national integration or the elevating objectives set out in the preamble to our Constitution, and the best way of giving it. If it is part of a minority’s rights to make such a
CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 549 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]
choice, it should also be part of its obligations, which necessarily follow from the choice to adhere to the general pattern. The logical basis of such a choice is that the particular minority Institution, which chooses to impart such general secular education, prefers that higher range of freedom where, according to the poet Rabindranath Tagore, “the narrow domestic walls” which constitute barriers between various sections of the nation will crumble and fall. It may refuse to accept the choice made by the State of the kind of secular education the State wants or of the way in which it should be given. But, in that event, should it not be prepared to forego the benefits of recognition by the State? The State is bound to permit and protect the choice of the minority C Institution, whatever that might be. But, can it be compelled to give it a treatment different from that given to other Institutions making such a choice?
221. Evidently, what was meant was that the right to exclusive management of the institution is separable from the right to determine the character of education and its standards. This may explain why “standards” of education were spoken as “not part of management” at all. It meant that the right to manage, having been conferred in absolute terms, could not be interfered with at all although the object of that management could be determined by a general pattern to be laid down by the State, which could prescribe the syllabi and standards of education. Speaking for myself, I find it very difficult to separate the objects and standards of teaching from a right to determine who should teach and what their qualifications should be. Moreover, if the “standards of education” are not part of management, it is difficult to see how they are exceptions to the principle of freedom of management from control. Again, if what is aimed at directly is to be distinguished from an indirect effect of it, the security of tenure of teachers and provisions intended to ensure fair and equitable treatment for them by the management of an institution would also not be directly aimed at interference with its management. They could more properly be viewed as designed to improve and ensure the excellence of teachers available at the institution, and, therefore, to raise the general standard of education. I think that it is enough for us to distinguish this case on the ground that the provisions to be interpreted by us are different, although, speaking for myself, I H
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A feel bound to say, with great respect, that I am unable to accept every proposition found stated there as correct. In that case, the provisions of the Kerala University Act 9 of 1969, considered there were inescapable for the minority institutions which claimed the right to be free from their operation. As I have already observed, in the case before us, Section 38-B of the Act provides the petitioning College before us with a practically certain mode of escape from the compulsiveness of provisions other than Sections 5, 40, and 41 of the Act if claims made on its behalf are correct.
232. Even if Article 30(1) of the Constitution is held to confer absolute and unfettered rights of management upon minority institutions, subject only to absolutely minimal and negative controls in the interests of health and law and order, it could not be meant to exclude a greater degree of regulation and control when a minority institution enters the wider sphere of general secular and non-denominational education, largely employs teachers who are not members of the particular minority concerned, and when it derives large parts of its income from the fees paid by those who are not members of the particular minority in question. Such greater degree of control could be justified by the need to secure the interests of those who are affected by the management of the minority institution and the education it imparts but who are not members of the minority in management. In other words, the degree of reasonably permissible control must vary from situation to situation. For the reasons already given above, I think that, apart from Sections 5, 40 and 41 of the Act, which directly and unreasonably impinge upon the rights of the petitioning minority managed college, protected by Article 30(1) of the Constitution, I do not think that the other provisions have that effect. On the situation under consideration before us, the minority institution affected by the enactment has, upon the claims put forward on its behalf, a means of escape from the impugned provisions other than Sections 5, 40 and 41 of the Act by resorting to Section 38B of the Act.” (emphasis supplied)
2323. In The Gandhi Faiz-e-am College, Shahjahanpur v. H University of Agra and Anr., (1975) 2 SCC 283, the Court considered
CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 551 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]
whether statute framed by University of Agra infringed fundamental A rights of the minority community and observed thus: “16. The discussion throws us back to a closer study of Statute 14-A to see if it cuts into the flesh of the management’s right or merely tones up its health and habits. The two requirements the University asks for are that the managing body (whatever its name) B must take in (a) the Principal of the College; (b) its seniormost teacher. Is this desideratum dismissible as biting into the autonomy of management or tenable as ensuring the excellence of the institution without injuring the essence of the right? On a careful reflection and conscious of the constitutional dilemma, we are inclined to the view that this case falls on the valid side of the delicate line. Regulation which restricts is bad, but regulation which facilitates is good. Where does this fine distinction lie? No rigid formula is possible, but a flexible test is feasible. Where the object and effect is to improve the tone and temper of the administration without forcing on it a stranger, however superb his virtues be, where the directive is not to restructure the governing body but to better its performance by a marginal catalytic induction, where no external authority’s fiat or approval or outside nominee is made compulsory to validate the Management Board but inclusion of an internal key functionary appointed by the autonomous management alone is asked for, the provision is salutary and saved, being not a diktat eroding the freedom of the freedom.” (emphasis supplied) The majority negated the challenge. It was held that regulation which restricts is bad, but provision which facilitates is good. F
2424. In Frank Anthony Public School Employees’ Association v. Union of India and others, (1986) 4 SCC 707, question arose whether teachers and other employees working in an unaided school were entitled to same pay-scale, allowances, and benefits. The Court allowed the petition and opined thus: G “16. The excellence of the instruction provided by an institution would depend directly on the excellence of the teaching staff, and in turn, that would depend on the quality and the contentment of the teachers. Conditions of service pertaining to minimum qualifications of teachers, their salaries, allowances and other H
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A conditions of service which ensure security, contentment and decent living standards to teachers and which will consequently enable them to render better service to the institution and the pupils cannot surely be said to be violative of the fundamental right guaranteed by Article 30(1) of the Constitution. The management of a minority Educational Institution cannot be permitted under the guise of the fundamental right guaranteed by Article 30(1) of the Constitution, to oppress or exploit its employees any more than any other private employee. Oppression or exploitation of the teaching staff of an educational institution is bound to lead, inevitably, to discontent and deterioration of the standard of instruction imparted in the institution affecting adversely the object of making the institution an effective vehicle of education for the minority community or other persons who resort to it. The management of minority institution cannot complain of invasion of the fundamental right to administer the institution when it denies the members of its staff the opportunity to achieve the very object of Article 30(1) which is to make the institution an effective vehicle of education.” (emphasis supplied)
2525. In Bihar State Madarasa Education Board, Patna v. E MadarasaHanfia Arabic College, Jamalia and others, (1990) 1 SCC 428, the Court held that minorities have the right to establish and administer educational institution of their own choice. Still, they have no right to maladminister, and the State has the power to regulate the management and administration of such institutions in the interest of educational need and discipline of the institution. The Court held thus: F “6. The question which arises for consideration is whether Section 7(2)(n) which confers power on the Board to dissolve the Managing Committee of an aided and recognised Madarasa institution violates the minorities constitutional right to administer its educational institution according to their choice. This Court G has all along held that though the minorities have right to establish and administer educational institution of their own choice but they have no right to maladminister and the State has power to regulate management and administration of such institutions in the interest of educational need and discipline of the institution. Such regulation may have indirect effect on the absolute right of minorities but
CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 553 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]
that would not violate Article 30(1) of the Constitution as it is the duty of the State to ensure efficiency in educational institutions. The State has, however, no power to completely take over the management of a minority institution. Under the guise of regulating the educational standards to secure efficiency in institution, the State is not entitled to frame rules or regulations compelling the management to surrender its right of administration. In State of Kerala v. Very Rev. Mother Provincial, (1970) 2 SCC 417, Section 63(1) of the Kerala University Act, 1969 which conferred power on the government to take over the management of a minority institution on its default in carrying out the directions of the State Government was declared ultra vires on the ground that the provisions interfered with the constitutional right of a minority to administer its institution. Minority institutions cannot be allowed to fall below the standard of excellence on the pretext of their exclusive right of management but at the same time their constitutional right to administer their institutions cannot be completely taken away by superseding or dissolving Managing Committee or by appointing ad hoc committees in place thereof. In the instant case Section 7(2)(n) is clearly violative of constitutional right of minorities under Article 30(1) of the Constitution insofar as it provides for dissolution of Managing Committee of a Madarasa. We agree with the view taken by the E High Court.” (emphasis supplied)
2626. In St. Stephen’s College v. University of Delhi, (1992) 1 SCC 558, concerning admission process adopted by aided minority institutions, various questions were raised thus: F
“41. It was contended that St. Stephen’s College after being affiliated to the Delhi University has lost its minority character. The argument was based on some of the provisions in the Delhi University Act and the Ordinances made thereunder. It was said that the students are admitted to the University and not to the G College as such. But we find no substance in the contention. In the first place, it may be stated that the State or any instrumentality of the State cannot deprive the character of the institution, founded by a minority community by compulsory affiliation since Article 30(1) is a special right to minorities to establish educational H
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A institutions of their choice. The minority institution has a distinct identity and the right to administer with continuance of such identity cannot be denied by coercive action. Any such coercive action would be void being contrary to the constitutional guarantee. The right to administer is the right to conduct and manage the affairs of the institution. This right is exercised by a body of persons in whom the founders have faith and confidence. Such a management body of the institution cannot be displaced or reorganised if the right is to be recognised and maintained. Reasonable regulations however, are permissible but regulations should be of regulatory nature and not of abridgment of the right guaranteed under Article 30(1). 60.The right to select students for admission is a part of administration. It is indeed an important facet of administration. This power also could be regulated but the regulation must be reasonable just like any other regulation. It should be conducive to the welfare of the minority institution or for the betterment of those who resort to it. The Bombay Government order which prevented the schools using English as the medium of instruction from admitting students who have a mother tongue other than English was held to be invalid since it restricted the admission pattern of the schools [State of Bombay v. Bombay Education E Society,(1955) 1 SCR 568]. The Gujarat Government direction to the minority run college to reserve 80 per cent of seats for government selected candidates with a threat to withdraw the grant-in-aid and recognition was struck down as infringing the fundamental right guaranteed to minorities under Article 30(1) of the Constitution [Sidhajbhai Sabhai v. State of Bombay, (1963) 3 SCR 837]. In Rt. Rev. Magr. Mark Netto v. State of Kerala, (1979) 1 SCC 23, the denial of permission to the management of a minority school to admit girl students was held to be bad. The Regional Deputy Director in that case refused to give sanction for admission of girl students on two grounds: (i) that the school was not opened as a mixed school and that the school has been run purely as a boys school for 25 years; and (ii) that there was facility for the education of girls of the locality in a nearby girls school which was established by the Muslims and was also a minority institution. This Court noted that the Christian community in the locality wanted their girls also to receive education in the
CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 555 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]
school maintained specially by their own community. They did not think it in their interest to send their children to the Muslim girls school run by the other minority community. The withholding of permission for admission of girl students in the boys minority school was violative of Article 30(1). It was also observed that the rule sanctioning such refusal of permission crosses the barrier of regulatory measures and comes in the region of interference with the administration of the institution, a right which is guaranteed to the minority under Article 30(1). The Court restricted the operation of the rule and made it inapplicable to the minority educational institution. In Director of School Education, Government of T.N. v. Rev. Brother G. Arogiasamy,AIR 1971 Mad 440, the C Madras High Court had an occasion to consider the validity of an uniform procedure prescribed by the State Government for admission of candidates to the aided training schools. The government directed that the candidates should be selected by the school authorities by interviewing every candidate eligible for admission and assessing and awarding marks in the interview. The marks awarded to each candidate in the interview will be added to the marks secured by the candidate in the SSLC public examination. On the basis of the aggregate of marks in the SSLC examination and those obtained at the interview the selection was to be made without any further discretion. The High Court held that the method of selection placed serious restrictions on the freedom of the minority institution to admit their own students. It was found that the students of the minority community could not compete with the students belonging to other communities. The applications of students from other communities could not be restricted under law. The result was that the students of minority community for whose benefit the institution was founded, had little chance of getting admission. The High Court held that the government order prescribing the uniform method of selection could not be applied to minority institutions.
78. Having set the scene, we can deal with the provisions of G Articles 29(1) and 30(1) relatively quickly. Under Article 29(1) every section of the citizens having a distinct language, script or culture of its own has the right to conserve the same. Under Article 29(1), the minorities — religious or linguistic — are entitled to establish and administer educational institutions to conserve their H
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A distinct language, script or culture. However, it has been consistently held by the courts that the right to establish an educational institution is not confined to purposes of conservation of language, script or culture. The rights in Article 30(1) are of wider amplitude. The width of Article 30(1) cannot be cut down by the considerations on which Article 29(1) is based. The words “of their choice” in B Article 30(1) leave vast options to the minorities in selecting the type of educational institutions which they wish to establish. They can establish institutions to conserve their distinct language, script or culture or for imparting general secular education or for both the purposes. (See: Father W. Proost v. State of Bihar, (1969) 2 C SCR 73,Ahmedabad St. Xavier’s College v. State of Gujarat, (1974) 1 SCC 717; and Kerala Education Bill case, 1959 SCR 995.)” (emphasis supplied) The decision in St. Stephen’s College (supra) has been analysed by my esteemed brother Lalit, J. in Sk. Md. Rafique v. Managing Committee, ContaiRahamania High Madrasah and Ors., 2020 (1) SCALE 345, thus: “28. In St. Stephen’s College vs. University of Delhi, (1992) 1 SCC 558 a Bench of five Judges of this Court had an occasion to consider the admission process adopted by two aided minority institutions viz. St. Stephen’s College at Delhi and Allahabad Agricultural Institute at Naini. The factual context as summed-up in the majority judgment authored by Shetty, J., was as under: “68. It is not in dispute that St. Stephen’s College and Allahabad F Agricultural Institute are receiving grant-in-aid from the government. St. Stephen’s College gives preference to Christian students. The Allahabad Agricultural Institute reserves 50 per cent of the seats for Christian students. The Christian students admitted by preference or against the quota reserved G are having less merit in the qualifying examination than the other candidates. The other candidates with more merit are denied admission on the ground that they are not Christians.
69. It was argued for the University and the Students Union that since both the institutions are receiving State aid, the institutional preference for admission based on religion is H
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violative of Article 29(2) of the Constitution. The institutions shall not prefer or deny admission to candidates on ground of religion. For institutions, on the other hand, it was claimed that any preference given to the religious minority candidates in their own institutions cannot be a discrimination falling under Article 29(2). The institutions are established for the benefit of their community and if they are prevented from admitting their community candidates, the purpose of establishing the institutions would be defeated. The minorities are entitled to admit their candidates by preference or by reservation. They are also entitled to admit them to the exclusion of all others and that right flows from the right to establish and administer educational institutions guaranteed under Article 30(1).” 28.1. The majority judgment dealt with the submissions raised by the institution as under: “80. Equally, it would be difficult to accept the second submission that the minorities are entitled to establish and administer educational institutions for their exclusive benefit. The choice of institution provided in Article 30(1) does not mean that the minorities could establish educational institution for the benefit of their own community people. Indeed, they cannot. It was pointed out in Re, Kerala E Education Bill that the minorities cannot establish educational institution only for the benefit of their community. If such was the aim, Article 30(1) would have been differently worded and it would have contained the words “for their own community”. In the absence of such words it is legally impermissible to construe the article as conferring the right on the minorities to establish educational institution for their own benefit.
81. Even in practice, such claims are likely to be met with considerable hostility. It may not be conducive to have a relatively homogeneous society. It may lead to religious bigotry which is the bane of mankind. In the nation building with secular character sectarian schools or colleges, segregated faculties or universities for imparting general secular education are undesirable and they may undermine secular democracy. They would be inconsistent with the central concept of secularism and equality embedded in the Constitution. Every educational H
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