CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION v. UNION OF INDIA AND OTHERS

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A institution irrespective of community to which it belongs is a ‘melting pot’ in our national life. The students and teachers are the critical ingredients. It is there they develop respect for, and tolerance of, the cultures and beliefs of others. It is essential therefore, that there should be proper mix of students of different communities in all educational institutions.” B *** 28.3. The majority Judgment, then, considered the matter from the perspective of “Rights of Minorities and Balancing Interest” and observed: C “101. Laws carving out the rights of minorities in Article 30(1) however, must not be arbitrary, invidious or unjustified; they must have a reasonable relation between the aim and the means employed. The individual rights will necessarily have to be balanced with competing minority interests. In D Sidhajbhai case (1963) 3 SCR 837 the government order directing the minority run college to reserve 80 per cent of seats for government nominees and permitting only 20 per cent of seats for the management with a threat to withhold the grant-in-aid and recognition was struck down by the Court as infringing the fundamental freedom guaranteed by Article 30(1). Attention may also be drawn to Article 337 of the Constitution which provided a special concession to Anglo-Indian community for ten years from the commencement of the Constitution. Unlike Article 30(2) it conferred a positive right on the Anglo-Indian community to get grants from the government for their educational institutions, but subject to the condition that at least 40 per cent of annual admission were made available to members of other communities.

102. In the light of all these principles and factors, and in view of the importance which the Constitution attaches to protective measures to minorities under Article 30(1), the minority aided educational institutions are entitled to prefer their community candidates to maintain the minority character of the institutions subject of course to conformity with the University standard. The State may regulate the intake in this category with due regard to the need of the community in the area which the institution is intended to serve. But in no case such intake shall exceed 50 per cent of the annual admission. The minority institutions shall make

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 559 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

available at least 50 per cent of the annual admission to members of communities other than the minority community. The admission of other community candidates shall be done purely on the basis of merit.” 28.4. It was also observed that regulations which serve the interest of students and teachers and preserve the uniformity in standards of education amongst the affiliated institutions could validly be made. The relevant discussion in para 59 was as under: “59. The need for a detailed study on this aspect is indeed not necessary. The right to minorities whether religious or linguistic, to administer educational institutions and the power of the State C to regulate academic matters and management is now fairly well settled. The right to administer does not include the right to maladminister. The State being the controlling authority has right and duty to regulate all academic matters. Regulations which will serve the interests of students and teachers, and to preserve the uniformity in standards of education among the affiliated institutions could be made. The minority institutions cannot claim immunity against such general pattern and standard or against general laws such as laws relating to law and order, health, hygiene, labour relations, social welfare legislations, contracts, torts etc. which are applicable to all communities. So long as the basic right of minorities to manage educational institution is not taken away, the State is competent to make regulatory legislation. Regulations, however, shall not have the effect of depriving the right of minorities to educate their children in their own institution. That is a privilege which is implied in the right conferred by Article 30(1).” F

28.5. The dissenting opinion of Kasliwal, J. quoted a passage from the Constituent Assembly Debates (CAD) touching upon the matter in issue as under:- “137. These were Articles 23(1) on the one hand and 23(3)(a) G and 23(3)(b) on the other hand in the Draft Constitution. Firstly, Dr. B.R. Ambedkar said in relation to draft Article 23(2) corresponding to the present Article 28 of the Constitution that even in relation to Articles 30 and 29 the State was completely free to give or not to give aid to the educational institutions of the religious or linguistic minorities. He said: H

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A “Now, with regard to the second clause I think it has not been sufficiently well understood. We have tried to reconcile the claim of a community which has started educational institutions for the advancement of its own children either in education or in cultural matters, to permit to give religious instruction in such institutions; notwithstanding the fact that it receives certain aid from the State. The State, of course, is free to give aid, is free not to give aid; the only limitation we have placed is this, that the State shall not debar the institution from claiming aid under its grant-in-aid code merely on the ground that it is run and maintained by a community and not maintained by a public body. We have there provided also a further qualification, that while it is free to give religious instruction in the institution and the grant made by the State shall not be a bar to the giving of such instruction, it shall not give instruction to, or make it compulsory upon, the children belonging to other communities unless and until they obtain the consent of the parents of these children. That, I think, is a salutary provision. It performs two functions... Shri H.V. Kamath: On a point of clarification what about institutions and schools run by a community or a minority for its own pupils — not a school where all communities are mixed but a school run by the community for its own pupils? The Hon’ble Dr. B.R. Ambedkar: If my friend, Mr. Kamath will read the other article he will see that once an institution, whether maintained by the community or not, gets a grant, the condition is that it shall keep the school open to all communities. F That provision he has not read.”

138. He reaffirmed the freedom of the State to give or not to give aid to these schools when directly referring to draft Article 23 which is the precursor of the present Articles 29 and 30 as follows (VII CAD 923): G “I think another thing which has to be borne in reading Article 23 is that it does not impose any obligation or burden upon the State. It does not say that, when for instance the Madras people come to Bombay, the Bombay Government shall be required by law to finance any project of giving H education either in Tamil language or in Andhra language

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 561 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

or any other language. There is no burden cast upon the A State. The only limitation that is imposed by Article 23 is that if there is a cultural minority which wants to preserve its language, its script and its culture, the State shall not by law impose upon it any other culture which may be either local or otherwise.” B And, went on to observe that once an institution was receiving aid, “it must abide by the rigor of Article 29(2) in the matter of admission of students in the college” and “as already held by me, St. Stephen’s College and Allahabad Agricultural Institute are not entitled to claim any preferential right or reservation in favour of students of Christian community as they are getting C grant-in-aid and as such I do not consider it necessary to labour any more on the question of deciding as to what percentage can be considered as reasonable.” (emphasis supplied) D The Court held that the choice of institution does not mean that the minorities could establish educational institution for the benefit of their own community people. In ReTheKerala Education Bill (supra), it was considered and observed that the minorities cannot establish educational institution only for the benefit of their community. Every educational institution, irrespective of community to which it belongs, is E a ‘melting pot’ in our national life and that there should be mixing up of students of different communities in all educational institutions. The intake for the community cannot exceed 50% of the annual admission, which is to be provided to other than the minority community. The admission should be made purely on the basis of merit. F

27Copy pinpoint27. In T.M.A. Pai Foundation (supra), decided by Bench of 11 Judges of the Court,on consideration of the rights under Article 30 of the Constitution of India, held thus: “3. The hearing of these cases has had a chequered history. Writ Petition No. 350 of 1993 filed by the Islamic Academy of Education G and connected petitions were placed before a Bench of five Judges. As the Bench was prima facie of the opinion that Article 30 did not clothe a minority educational institution with the power to adopt its own method of selection and the correctness of the decision of this Court in St. Stephen’s College v. University of Delhi, H

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A (1992) 1 SCC 558, was doubted, it was directed that the questions that arose should be authoritatively answered by a larger Bench. These cases were then placed before a Bench of seven Judges. The questions framed were recast and on 6-2-1997, the Court directed that the matter be placed before a Bench of at least eleven Judges, as it was felt that in view of the Forty-second B Amendment to the Constitution, whereby “education” had been included in Entry 25 of List III of Seventh Schedule, the question of who would be regarded as a ”minority” was required to be considered because the earlier case-law related to the pre- amendment era, when education was only in the State List. When C the cases came up for hearing before an eleven-Judge Bench, during the course of hearing on 19-3-1997, the following order was passed: “Since a doubt has arisen during the course of our arguments as to whether this Bench would feel itself bound by the ratio propounded in —Kerala Education Bill, 1957, In Re, AIR 1958 SC 956 and Ahmedabad St. Xavier’s College Society v. State of Gujarat, (1974) 1 SCC 717it is clarified that this sized Bench would not feel itself inhibited by the views expressed in those cases since the present endeavour is to discern the true scope and interpretation of Article 30(1) of the Constitution, which being the dominant question would require examination in its pristine purity. The factum is recorded.””

38. The scheme in Unni Krishnan case, (1993) 1 SCC 645 has the effect of nationalizing education in respect of important features viz. the right of a private unaided institution to give admission and to fix the fee. By framing this scheme, which has led to the State Governments legislating in conformity with the scheme, the private institutions are indistinguishable from the government institutions; curtailing all the essential features of the right of administration of G a private unaided educational institution can neither be called fair nor reasonable. Even in the decision in Unni Krishnan case it has been observed by Jeevan Reddy, J., at p. 749, para 194, as follows: “194. The hard reality that emerges is that private educational institutions are a necessity in the present-day context. It is not

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 563 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

possible to do without them because the governments are in no position to meet the demand — particularly in the sector of medical and technical education which call for substantial outlays. While education is one of the most important functions of the Indian State it has no monopoly therein. Private educational institutions — including minority educational institutions — too have a role to play.”

40. Any system of student selection would be unreasonable if it deprives the private unaided institution of the right of rational selection, which it devised for itself, subject to the minimum qualification that may be prescribed and to some system of computing the equivalence between different kinds of qualifications, like a common entrance test. Such a system of selection can involve both written and oral tests for selection, based on principle of fairness.

45. In view of the discussion hereinabove, we hold that the decision in Unni Krishnan case, (1993) 1 SCC 645 insofar as it framed the scheme relating to the grant of admission and the fixing of the fee, was not correct, and to that extent, the said decision and the consequent directions given to UGC, AICTE, the Medical Council of India, the Central and State Governments etc. are overruled. 50.The right to establish and administer broadly comprises the following rights: (a) to admit students; (b) to set up a reasonable fee structure; (c) to constitute a governing body; F (d) to appoint staff (teaching and non-teaching); and (e) to take action if there is dereliction of duty on the part of any employees.

53. With regard to the core components of the rights under Articles G 19 and 26(a), it must be held that while the State has the right to prescribe qualifications necessary for admission, private unaided colleges have the right to admit students of their choice, subject to an objective and rational procedure of selection and the compliance with conditions, if any, requiring admission of a small percentage H

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A of students belonging to weaker sections of the society by granting them freeships or scholarships, if not granted by the Government. Furthermore, in setting up a reasonable fee structure, the element of profiteering is not as yet accepted in Indian conditions. The fee structure must take into consideration the need to generate funds to be utilized for the betterment and growth of the educational institution, the betterment of education in that institution and to provide facilities necessary for the benefit of the students. In any event, a private institution will have the right to constitute its own governing body, for which qualifications may be prescribed by the State or the university concerned. It will, however, be objectionable if the State retains the power to nominate specific individuals on governing bodies. Nomination by the State, which could be on a political basis, will be an inhibiting factor for private enterprise to embark upon the occupation of establishing and administering educational institutions. For the same reasons, nomination of teachers either directly by the department or through a service commission will be an unreasonable inroad and an unreasonable restriction on the autonomy of the private unaided educational institution.

68. It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forego or discard the principle of merit. It would, therefore, be permissible for the university or the Government, at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while, at the same time, giving the management sufficient discretion in admitting students. This can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the management out of those students who have passed the common entrance test held by itself or by the State/ G university and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counselling by the State agency. This will incidentally take care of poorer and backward sections of the society. The prescription of percentage for this purpose has to be done by the Government H according to the local needs and different percentages can be

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 565 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

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

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

90. In the exercise of this right to conserve the language, script or culture, that section of the society can set up educational institutions. The right to establish and maintain educational institutions of its choice is a necessary concomitant to the right conferred by E Article 30. The right under Article 30 is not absolute. Article 29(2) provides that, where any educational institution is maintained by the State or receives aid out of State funds, no citizen shall be denied admission on the grounds only of religion, race, caste, language or any of them. The use of the expression “any educational institution” in Article 29(2) would (sic not) refer F to any educational institution established by anyone, but which is maintained by the State or receives aid out of State funds. In other words, on a plain reading, State-maintained or aided educational institutions, whether established by the Government or the majority or a minority community cannot deny admission to G a citizen on the grounds only of religion, race, caste or language.

93. Can Article 30(1) be so read as to mean that it contains an absolute right of the minorities, whether based on religion or language, to establish and administer educational institutions in any manner they desire, and without being obliged to comply with H

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A the provisions of any law? Does Article 30(1) give the religious or linguistic minorities a right toestablish an educational institution that propagates religious or racial bigotry or ill will amongst the people? Can the right under Article 30(1) be so exercised that it is opposed to public morality or health? In the exercise of its right, would the minority while establishing educational institutions not B be bound by town planning rules and regulations? Can they construct and maintain buildings in any manner they desire without complying with the provisions of the building bye-laws or health regulations?

105. In Rev. SidhajbhaiSabhai v. State of Bombay, (1963) 3 C SCR 837, this Court had to consider the validity of an order issued by the Government of Bombay whereby from the academic year 1955-56, 80% of the seats in the training colleges for teachers in non-government training colleges were to be reserved for the teachers nominated by the Government. The petitioners, who belonged to the minority community, were, inter alia, running a training college for teachers, as also primary schools. The said primary schools and college were conducted for the benefit of the religious denomination of the United Church of Northern India and Indian Christians generally, though admission was not denied to students belonging to other communities. The petitioners challenged the government order requiring 80% of the seats to be filled by nominees of the Government, inter alia, on the ground that the petitioners were members of a religious denomination and that they constituted a religious minority, and that the educational institutions had been established primarily for the benefit of the F Christian community. It was the case of the petitioners that the decision of the Government violated their fundamental rights guaranteed by Articles 30(1), 26(a), (b), (c) and (d), and 19(1)(f) and (g). While interpreting Article 30, it was observed by this Court at SCR pp. 849-50 as under: G “All minorities, linguistic or religious have by Article 30(1) an absolute right to establish and administer educational institutions of their choice; and any law or executive direction which seeks to infringe the substance of that right under Article 30(1) would to that extent be void. This, however, is not to say that it is not open to the State to impose regulations H

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 567 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

upon the exercise of this right. The fundamental freedom is to establish and to administer educational institutions: it is a right to establish and administer what are in truth educational institutions, institutions which cater to the educational needs of the citizens, or sections thereof. Regulation made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed. Such Regulations are not restrictions on the substance of the right which is guaranteed: they secure the proper functioning of the institution, in matters educational.”

106. While coming to the conclusion that the right of the private training colleges to admit students of their choice was severely restricted, this Court referred to the opinion in Kerala Education Bill, 1957 case, 1959 SCR 995, but distinguished it by observing that the Court did not, in that case, lay down any test of reasonableness of the regulation. No general principle on which the reasonableness of a regulation may be tested was sought to be laid down in Kerala Education Bill, 1957 case, 1959 SCR 995 and, therefore, it was held in SidhajbhaiSabhai case, (1963) 3 SCR 837 that the opinion in that case was not an authority for the proposition that all regulative measures, which were not destructive or annihilative of the character of the institution established by the minority, provided the regulations were in the national or public interest, were valid. In this connection it was further held at SCR pp. 856-57, as follows: “The right established by Article 30(1) is a fundamental right declared in terms absolute. Unlike the fundamental freedoms guaranteed by Article 19, it is not subject to reasonable restrictions. It is intended to be a real right for the protection of the minorities in the matter of setting up of educational institutions of their own choice. The right is intended to be effective and is not to be whittled down by so-called regulative measures conceived in the interest not of the minority educational institution, but of the public or the nation as a whole. If every order which while maintaining the formal character of a minority institution destroys the power of administration is held justifiable because it is in the public or national interest, though not in its interest as an educational institution, the right H

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A guaranteed by Article 30(1) will be but a ‘teasing illusion’, a promise of unreality. Regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as a minority institution effective as an educational institution. Such regulation must B 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.”

C 107. The aforesaid decision does indicate that the right under Article 30(1) is not so absolute as to prevent the Government from making any regulation whatsoever. As already noted hereinabove, in SidhajbhaiSabhai case, (1963) 3 SCR 837, it was laid down that regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality and public order could be imposed. If this is so, it is difficult to appreciate how the Government can be prevented from framing regulations that are in the national interest, as it seems to be indicated in the passage quoted hereinabove. Any regulation framed in the national interest must necessarily apply to all educational institutions, whether run by the majority or the minority. Such a limitation must necessarily be read into Article 30. The right under Article 30(1) cannot be such as to override the national interest or to prevent the Government from framing regulations in that behalf. It is, of course, true that government regulations cannot destroy the minority character of the institution or make the right to establish and administer a mere illusion; but the right under Article 30 is not so absolute as to be above the law. It will further be seen that in SidhajbhaiSabhai case, (1963) 3 SCR 837, no reference was made to Article 29(2) of the Constitution. This decision, therefore, cannot be an authority for the proposition canvassed before us. G

119. In a concurrent judgment, while noting (at SCC p. 770, para 73) that ”clause (2) of Article 29 forbids the denial of admission to citizens into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them”, Khanna, J. then examined H

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Article 30, and observed at SCR p. 222, as follows: (SCC p. 770, A para 74) “74. Clause (1) of Article 30 gives right to all minorities, whether based on religion or language, to establish and administer educational institutions of their choice. Analysing that clause it would follow that the right which has been conferred by the clause is on two types of minorities. Those minorities may be based either on religion or on language. The right conferred upon the said minorities is to establish and administer educational institutions of their choice. The word ‘establish’ indicates the right to bring into existence, while the right to administer an institution means the right to effectively manage and conduct the affairs of the institution. Administration connotes management of the affairs of the institution. The management must be free of control so that the founders or their nominees can mould the institution as they think fit and in accordance with their ideas of how the interest of the community in general and the institution in particular will be best served. The words ‘of their choice’ qualify the educational institutions and show that the educational institutions established and administered by the minorities need not be of some particular class; the minorities have the right and freedom to establish and administer such educational institutions as they choose. Clause E (2) of Article 30 prevents the State from making discrimination in the matter of grant of aid to any educational institution on the ground that the institution is under the management of a minority, whether based on religion or language.”

120. Explaining the rationale behind Article 30, it was observed at SCR p. 224, as follows: (SCC p. 772, para 77) “77. The idea of giving some special rights to the minorities is not to have a kind of a privileged or pampered section of the population but to give to the minorities a sense of security and a feeling of confidence. The great leaders of India since time immemorial had preached the doctrine of tolerance and catholicity of outlook. Those noble ideas were enshrined in the Constitution. Special rights for minorities were designed not to create inequality. Their real effect was to bring about equality by ensuring the preservation of the minority institutions and by H

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A guaranteeing to the minorities autonomy in the matter of the administration of those institutions. The differential treatment for the minorities by giving them special rights is intended to bring about an equilibrium, so that the ideal of equality may not be reduced to a mere abstract idea but should become a living reality and result in true, genuine equality, an equality not merely B in theory but also in fact.”

121. While advocating that provisions of the Constitution should be construed according to the liberal, generous and sympathetic approach, and after considering the principles which could be discerned by him from the earlier decisions of this Court, Khanna, C J., observed at SCR p. 234, as follows: (SCC p. 781, para 89) “The minorities are as much children of the soil as the majority and the approach has been to ensure that nothing should be done as might deprive the minorities of a sense of belonging, of a feeling of security, of a consciousness of equality and of the awareness that the conservation of their religion, culture, language and script as also the protection of their educational institutions is a fundamental right enshrined in the Constitution. The same generous, liberal and sympathetic approach should weigh with the courts in construing Articles 29 and 30 as marked the deliberations of the Constitution-makers in drafting those articles and making them part of the fundamental rights. The safeguarding of the interest of the minorities amongst sections of population is as important as the protection of the interest amongst individuals of persons who are below the age of majority or are otherwise suffering from some kind of infirmity. The Constitution and the laws made by civilized nations, therefore, generally contain provisions for the protection of those interests. It can, indeed, be said to be an index of the level of civilization and catholicity of a nation as to how far their minorities feel secure and are not subject to any discrimination or suppression.”

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

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 571 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

regulations could be lawfully imposed, for the receiving of grants and recognition, while permitting the institution to retain its character as a minority institution. The regulation ”must satisfy a dual test — the test of reasonableness, and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it”. (SCC p. 783, para 92) It was permissible for the authorities to prescribe regulations, which must be complied with, before a minority institution could seek or retain affiliation and recognition. But it was also stated that the regulations made by the authority should not impinge upon the minority character of the institution. Therefore, a balance has to be kept between the two objectives — that of ensuring the standard of excellence of the institution, and that of preserving the right of the minorities to establish and administer their educational institutions. Regulations that embraced and reconciled the two objectives could be considered to be reasonable. This, in our view, is the correct approach to the problem.

123. After referring to the earlier cases in relation to the appointment of teachers, it was noted by Khanna, J., that the conclusion which followed was that a law which interfered with a minority’s choice of qualified teachers, or its disciplinary control over teachers and other members of the staff of the institution, was void, as it was violative of Article 30(1). While it was permissible for the State and its educational authorities to prescribe the qualifications of teachers, it was held that once the teachers possessing the requisite qualifications were selected by the minorities for their educational institutions, the State would have no right to veto the selection of those teachers. The selection and appointment of teachers for an educational institution was regarded as one of the essential ingredients under Article 30(1). The Court’s attention was drawn to the fact that in Kerala Education Bill, 1957 case, 1959 SCR 995, this Court had opined that clauses 11 G and 12 made it obligatory for all aided schools to select teachers from a panel selected from each district by the Public Service Commission and that no teacher of an aided school could be dismissed, removed or reduced in rank without the previous sanction of the authorized officer. At SCR p.245, Khanna, H

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A J., observed that in cases subsequent to the opinion in Kerala Education Bill, 1957 case, (1959) SCR 995 this Court had held similar provisions as clause 11 and clause 12 to be violative of Article 30(1) of the minority institutions. He then observed as follows: (SCC p. 792, para 109). B “The opinion expressed by this Court in Re Kerala Education Bill, 1957, 1959 SCR 995, was of an advisory character and though great weight should be attached to it because of its persuasive value, the said opinion cannot override the opinion subsequently expressed by this Court in contested cases. It is the law declared by this Court in the subsequent contested C cases which would have a binding effect. The words ‘as at present advised’ as well as the preceding sentence indicate that the view expressed by this Court in Re Kerala Education Bill, 1957 in this respect was hesitant and tentative and not a final view in the matter.”

D 135. We agree with the contention of the learned Solicitor- General that the Constitution in Part III does not contain or give any absolute right. All rights conferred in Part III of the Constitution are subject to at least other provisions of the said Part. It is difficult to comprehend that the framers of the Constitution would have E given such an absolute right to the religious or linguistic minorities, which would enable them to establish and administer educational institutions in a manner so as to be in conflict with the other Parts of the Constitution. We find it difficult to accept that in the establishment and administration of educational institutions by the religious and linguistic minorities, no law of the land, even the F Constitution, is to apply to them.

136. Decisions of this Court have held that the right to administer does not include the right to maladminister. It has also been held that the right to administer is not absolute, but must be subject to reasonable regulations for the benefit of the institutions as the G vehicle of education, consistent with national interest. General laws of the land applicable to all persons have been held to be applicable to the minority institutions also — for example, laws relating to taxation, sanitation, social welfare, economic regulation, public order and morality. H

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137. It follows from the aforesaid decisions that even though the words of Article 30(1) are unqualified, this Court has held that at least certain other laws of the land pertaining to health, morality and standards of education apply. The right under Article 30(1) has, therefore, not been held to be absolute or above other provisions of the law, and we reiterate the same. By the same analogy, there is no reason why regulations or conditions concerning, generally, the welfare of students and teachers should not be made applicable in order to provide a proper academic atmosphere, as such provisions do not in any way interfere with the right of administration or management under Article 30(1).

138. As we look at it, Article 30(1) is a sort of guarantee or assurance to the linguistic and religious minority institutions of their right to establish and administer educational institutions of their choice. Secularism and equality being two of the basic features of the Constitution, Article 30(1) ensures protection to the linguistic and religious minorities, thereby preserving the secularism of the country. Furthermore, the principles of equality must necessarily apply to the enjoyment of such rights. No law can be framed that will discriminate against such minorities with regard to the establishment and administration of educational institutions vis-a- vis other educational institutions. Any law or rule or regulation that would put the educational institutions run by the minorities at E a disadvantage when compared to the institutions run by the others will have to be struck down. At the same time, there also cannot be any reverse discrimination. It was observed in St. Xavier’s College case, (1975) 1 SCR173 at SCR p. 192 that: (SCC p. 743, para 9) F “The whole object of conferring the right on minorities under Article 30 is to ensure that there will be equality between the majority and the minority. If the minorities do not have such special protection they will be denied equality.” In other words, the essence of Article 30(1) is to ensure equal G treatment between the majority and the minority institutions. No one type or category of institution should be disfavoured or, for that matter, receive more favourable treatment than another.Laws of the land, including rules and regulations, must apply equally to the majority institutions as well as to the minority institutions. The H

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

139. Like any other private unaided institutions, similar unaided educational institutions administered by linguistic or religious minorities are assured maximum autonomy in relation thereto; e.g. B method of recruitment of teachers, charging of fees and admission of students. They will have to comply with the conditions of recognition, which cannot be such as to whittle down the right under Article 30.

144. It cannot be argued that no conditions can be imposed while giving aid to a minority institution. Whether it is an institution run by the majority or the minority, all conditions that have relevance to the proper utilization of the grant-in-aid by an educational institution can be imposed. All that Article 30(2) states is that on the ground that an institution is under the management of a minority, whether based on religion or language, grant of aid to that educational institution cannot be discriminated against, if other educational institutions are entitled to receive aid. The conditions for grant or non-grant of aid to educational institutions have to be uniformly applied, whether it is a majority-run institution or a minority-run institution. As in the case of a majority-run institution, the moment a minority institution obtains a grant of aid, Article 28 of the Constitution comes into play. When an educational institution is maintained out of State funds, no religious instruction can be provided therein. Article 28(1) does not state that it applies only to educational institutions that are not established or maintained by religious or linguistic minorities. Furthermore, upon the receipt ofaid, the provisions of Article 28(3) would apply to all educational institutions whether run by the minorities or the non- minorities. Article 28(3) is the right of a person studying in a State- recognized institution or in an educational institution receiving aid from State funds, not to take part in any religious instruction, if imparted by such institution, without his/her consent (or his/her guardian’s consent if such a person is a minor). Just as Articles 28(1) and (3) become applicable the moment any educational institution takes aid, likewise, Article 29(2) would also be attracted and become applicable to an educational institution maintained by the State or receiving aid out of State funds. It was H

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 575 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

strenuously contended that the right to give admission is one of A the essential ingredients of the right to administer conferred on the religious or linguistic minority, and that this right should not be curtailed in any manner. It is difficult to accept this contention. If Articles 28(1) and (3) apply to a minority institution that receives aid out of State funds, there is nothing in the language of B Article 30 that would make the provisions of Article 29(2) inapplicable. Like Article 28(1) and Article 28(3), Article 29(2) refers to ”any educational institution maintained by the State or receiving aid out of State funds”. A minority institution would fall within the ambit of Article 29(2) in the same manner in which Article 28(1) and Article 28(3) would be applicable to an aided minority institution. It is true that one of the rights to administer an educational institution is to grant admission to the students. As long as an educational institution, whether belonging to the minority or the majority community, does not receive aid, it would, in our opinion, be its right and discretion to grant admission to such students as it chooses or selects subject to what has been clarified before. Out of the various rights that the minority institution has in the administration of the institution, Article 29(2) curtails the right to grant admission to a certain extent. By virtue of Article 29(2), no citizen can be denied admission by an aided minority institution on the grounds only of religion, race, caste, language or any of them. E It is no doubt true that Article 29(2) does curtail one of the powers of the minority institution, but on receiving aid, some of the rights that an unaided minority institution has, are also curtailed by Articles 28(1) and 28(3). A minority educational institution has a right to impart religious instruction — this right is taken away by F Article 28(1), if that minority institution is maintained wholly out of State funds. Similarly on receiving aid out of State funds or on being recognized by the State, the absolute right of a minority institution requiring a student to attend religious instruction is curtailed by Article 28(3). If the curtailment of the right to administer a minority institution on receiving aid or being wholly G maintained out of State funds as provided by Article 28 is valid, there is no reason why Article 29(2) should not be held to be applicable. There is nothing in the language of Articles 28(1) and (3), Article 29(2) and Article 30 to suggest that, on receiving aid, Articles 28(1) and (3) will apply, but Article 29(2) will H

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A not. Therefore, the contention that the institutions covered by Article 30 are outside the injunction of Article 29(2) cannot be accepted.

151. The right of the aided minority institution to preferably admit students of its community, when Article 29(2) was applicable, has been clarified by this Court over a decade ago in St. Stephen’s College case, (1992) 1 SCC 558. While upholding the procedure for admitting students, this Court also held that aided minority educational institutions were entitled to preferably admit their community candidates so as to maintain the minority character of the institution, and that the State may regulate the intake in this category with due regard to the area that the institution was intended to serve, but that this intake should not be more than 50% in any case. Thus, St. Stephen’s endeavoured to strike a balance between the two articles. Though we accept the ratio of St. Stephen’s which has held the field for over a decade, we have compelling reservations in accepting the rigid percentage stipulated therein. As Article 29 and Article 30 apply not only to institutions of higher education but also to schools, a ceiling of 50% would not be proper. It will be more appropriate that, depending upon the level of the institution, whether it be a primary or secondary or high school or a college, professional or otherwise, and on the population and educational needs of the area in which the institution is to be located, the State properly balances the interests of all by providing for such a percentage of students of the minority community to be admitted, so as to adequately serve the interest of the community for which the institution was established.

F 152. At the same time, the admissions to aided institutions, whether awarded to minority or non-minority students, cannot be at the absolute sweet will and pleasure of the management of minority educational institutions. As the regulations to promote academic excellence and standards do not encroach upon the guaranteed G rights Under Article 30, the aided minority educational institutions can be required to observe inter se merit amongst the eligible minority applicants and passage of common entrance test by the candidates, where there is one, with regard to admissions in professional and non-professional colleges. If there is no such test, a rational method of assessing comparative merit has to be H

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 577 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

evolved. As regards the non-minority segment, admission may be on the basis of the common entrance test and counselling by a State agency. In the courses for which such a test and counselling are not in vogue, admission can be on the basis of relevant criteria for the determination of merit. It would be open to the State authorities to insist on allocating a certain percentage of seats to those belonging to weaker sections of society, from amongst the non-minority seats. Answers to eleven questions Q. 1. *** A. *** C

Q. 2. *** A. *** Q. 3.(a) *** D A. *** Q. 3. (b) To what extent can professional education be treated as a matter coming under minorities’ rights under Article 30? A. Article 30(1) gives religious and linguistic minorities the right to establish and administer educational institutions of their choice. E The use of the words “of their choice” indicates that even professional educational institutions would be covered by Article 30. Q. 4. Whether the admission of students to minority educational institution, whether aided or unaided, can be regulated by the State F Government or by the university to which the institution is affiliated? A. Admission of students to unaided minority educational institutions viz. schools and undergraduate colleges where the scope for merit-based selection is practically nil, cannot be regulated by the State or university concerned, except for providing G the qualifications and minimum conditions of eligibility in the interest of academic standards. The right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution, the State H

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A Government or the university may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it is more so in the matter of admissions to professional institutions. … Q.5. (a) Whether the minorities’s rights to establish and administer educational institutions of their choice will include the procedure and method of admission and selection of students? A. A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or selection made should not be tantamount to maladministration. Even an unaided minority institution ought not to ignore the merit of the students for admission, while exercising its right to admit students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence. E

Q.5.(b) *** A. ***

F Q.5. (c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and principals including their service conditions G and regulation of fees, etc. would interfere with the right of administration of minorities? A. So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should H

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 579 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

be minimal and the conditions of recognition as well as the A conditions of affiliation to a university or board have to be complied with, but in the matter of day-to-day management, like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a B rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself. For redressing the grievances of employees of aided and unaided institutions who are subjected to punishment or termination from service, a mechanism will have to be evolved, and in our opinion, appropriate tribunals could be constituted, and till then, such tribunals could be presided over by a judicial officer of the rank of District Judge. The State or other controlling authorities, however, can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher or a principal of any educational institution. Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State, without interfering with the overall administrative control of the management over the staff. E

Fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee.” (emphasis supplied) In T.M.A. Pai Foundation (supra), the Court held that some F system of computing equivalence between different kinds of qualifications like a common entrance test, would not be in violation of the rights conferred.The unaided minority institutions under Article 30(1) of the Constitution of India have the right to admit students, but the merit may be determined by common entrance test and the rights under Article G 30(1) is not absolute so as to prevent the Government from making any regulations. The Government cannot be prevented from framing regulations that are in national interest. However, the safeguard is that the Government cannot discriminate any minority institution and put them in a disadvantageous positionvis-à-vis to other educational institutions and has to maintain the concept of equality in real sense. The minority H

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A institutions must be allowed to do what non-minority institutions are permitted.It is open to State/concerned bodies to frame regulations with respect to affiliation and recognition, to provide a proper academic atmosphere.While answering question no.4, it was held that the Government or the University can lay down the regulatory measures ensuring educational standards and maintaining excellence and more so, B in the matter of admission to the professional institutions. It may not interfere with the rights so long as the admissions to the unaided minority institutions are on transparent basis and the merit is adequately taken care of.

28Copy pinpoint28. In Brahmo Samaj Education Society v. State of West C Bengal, (2004) 6 SCC 224, the Court opined that State can impose such conditions as are necessary for the proper maintenance of standards of education and to check maladministration. The decision of T.M.A. Pai Foundation (supra) was followed in which it was observed that the State could regulate the method of selection and appointment of teachers after prescribing requisite qualifications for the same. In Brahmo Samaj Education Society (supra), it was further opined that the State could very well provide the basic qualification for teachers. The equal standard of teachers has been maintained by the NET / SLET.

29Copy pinpoint29. This Court in P.A. Inamdar (supra) also considered the difference between professional and non-professional educational institutions, thus: “104. Article 30(1) speaks of “educational institutions” generally and so does Article 29(2). These articles do not draw any distinction between an educational institution dispensing theological education or professional or non-professional education. However, the terrain of thought as has developed through successive judicial pronouncements culminating in Pai Foundation, (2002) 8 SCC 481, is that looking at the concept of education, in the backdrop of the constitutional provisions, professional educational institutions constitute a class by themselves as distinguished from educational institutions imparting non-professional education. It is not necessary for us to go deep into this aspect of the issue posed before us inasmuch as Pai Foundation, (2002) 8 SCC 481, has clarified that merit and excellence assume special significance in the context of professional studies. Though merit and excellence are not anathema to non-professional education, yet at that level and due

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 581 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

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

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

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

107. Educational institutions imparting higher education i.e. graduate level and above and in particular specialised education such as technical or professional, constitute a separate class. While G embarking upon resolving issues of constitutional significance, where the letter of the Constitution is not clear, we have to keep in view the spirit of the Constitution, as spelt out by its entire scheme. Education aimed at imparting professional or technical qualifications stands on a different footing from other educational H

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A instruction. Apart from other provisions, Article 19(6) is a clear indicator and so are clauses (h) and (j) of Article 51-A. Education up to the undergraduate level aims at imparting knowledge just to enrich the mind and shape the personality of a student. Graduate- level study is a doorway to admissions in educational institutions imparting professional or technical or other higher education and, therefore, at that level, the considerations akin to those relevant for professional or technical educational institutions step in and become relevant. This is in the national interest and strengthening the national wealth, education included. Education up to the undergraduate level on the one hand and education at the graduate and postgraduate levels and in professional and technical institutions on the other are to be treated on different levels inviting not identical considerations, is a proposition not open to any more debate after Pai Foundation, (2002) 8 SCC 481. A number of legislations occupying the field of education whose constitutional validity has been tested and accepted suggest that while recognition or affiliation may not be a must for education up to undergraduate level or, even if required, may be granted as a matter of routine, recognition or affiliation is a must and subject to rigorous scrutiny when it comes to educational institutions awarding degrees, graduate or postgraduate, postgraduate diplomas and degrees in technical or professional disciplines. Some such legislations are found referred in paras 81 and 82 of S.B. Sinha, J.’s opinion in Islamic Academy, (2003) 6 SCC 697.” Dealing with unaided minority educational institutions in T.M.A. Pai Foundation (supra), the court observed that Article 30 does not come in the way of the State stepping in to secure transparency and recognition of merit in the matter of admissions. Regulatory measures for ensuring educational standards can be framed. In the case of professional education, transparency and merit have to be unavoidably taken care of and cannot be compromised.

30Copy pinpoint30. In Sindhi Education Society and Anr. v. Chief Secretary, Government of NCT of Delhi and Ors., (2010) 8 SCC 49, the Court opined that measures to regulate the courses of study, qualifications, and appointment of teachers, the conditions of employment are germane to the affiliation of minority institutions. The Court held thus:

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 583 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

“47. Still another seven-Judge Bench of this Court, in Ahmedabad A St. Xavier’s College Society, (1974) 1 SCC 717, was primarily concerned with the scope of Articles 29 and 30 of the Constitution, relating to the rights of minorities to impart general education and applicability of the concept of affiliation to such institutions. Of course, the Court held that there was no fundamental right of a B minority institution to get affiliation from a university. When a minority institution applies to a university to be affiliated, it expresses its choice to participate in the system of general education and courses of instructions prescribed by that university, and it agrees to follow the uniform courses of study. Therefore, measures which will regulate the courses of study, the qualifications and appointment of teachers, the conditions of employment of teachers, the health, hygiene of students and the other facilities are germane to affiliation of minority institutions.

55. The respondents have placed reliance upon the law stated by the Bench that any regulation framed in the national interest must necessarily apply to all educational institutions, whether run by majority or the minority. Such a limitation must be read into Article

30. The rule under Article 30(1) cannot be such as to override the national interest or to prevent the Government from framing regulations in that behalf. It is, of course, true that government regulations cannot destroy the minority character of the institution or make a right to establish and administer a mere illusion; but the right under Article 30 is not so absolute as to be above the law.

56. The appellant also seeks to derive benefit from the view that the courts have also held that the right to administer is not absolute and is subject to reasonable regulations for the benefit of the institutions as the vehicle of education consistent with the national interest. Such general laws of the land would also be applicable to the minority institutions as well. There is no reason why regulations or conditions concerning generally the welfare of the students and teachers should not be made applicable in order to provide a G proper academic atmosphere. As such, the provisions do not, in any way, interfere with the right of administration or management under Article 30(1). Any law, rule or regulation, that would put the educational institutions run by the minorities at a disadvantage, when compared to the institutions run by the others, will have to H

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A be struck down. At the same time, there may not be any reverse discrimination.

92. The right under clause (1) of Article 30 is not absolute but subject to reasonable restrictions which, inter alia, may be framed having regard to the public interest and national interest of the country. Regulation can also be framed to prevent maladministration as well as for laying down standards of education, teaching, maintenance of discipline, public order, health, morality, etc. It is also well settled that a minority institution does not cease to be so, the moment grant-in-aid is received by the institution. An aided minority educational institution, therefore, would be entitled to have the right of admission of students belonging to the minority group and, at the same time, would be required to admit a reasonable extent of non-minority students, to the extent, that the right in Article 30(1) is not substantially impaired and further, the citizen’s right under Article 29(2) is not infringed.” D In Chandana Das (Malakar) v. State of West Bengal and Ors., (2015) 12 SCC 140, the Court observed that the Government can frame the conditions of eligibility for appointment of such teachers,thus: “21. It is unnecessary to multiply decisions on the subject for the legal position is well settled. Linguistic institution and religious are entitled to establish and administer their institutions. Such right of administration includes the right of appointing teachers of its choice but does not denude the State of its power to frame regulations that may prescribe the conditions of eligibility for appointment of such teachers. The regulations can also prescribe measures to ensure that the institution is run efficiently for the right to administer does not include the right to maladministration. While grant-in-aid is not included in the guarantee contained in the Constitution to linguistic and religious minorities for establishing and running their educational institutions, such grant cannot be denied to such institutions only because the institutions are established by linguistic or religious minority. Grant of aid cannot, however, be made subservient to conditions which deprive the institution of their substantive right of administering such institutions. Suffice it to say that once Respondent 4 Institution is held to be a minority institution entitled to the protection of Articles 26 and 30 of the H Constitution of India the right to appoint teachers of its choice

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 585 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

who satisfy the conditions of eligibility prescribed for such appointments under the relevant rules is implicit in their rights to administer such institutions. Such rights cannot then be diluted by the State or its functionaries insisting that the appointment should be made only with the approval of the Director or by following the mechanism generally prescribed for institutions that do not enjoy the minority status.”

31Copy pinpoint31. In Modern Dental College and Research Centre (supra), the Constitution Bench of this Court considered the provisions of Articles 19(1)(g), 19(6), 26 and 30 in relation to the right to freedom of occupation of private unaided minority and non-minority educational institutions. This Court observed that the activity of education is neither trade nor profession, i.e., commercialisation and profiteering cannot be permitted. It is open to impose reasonable restrictions in the interest of general public. The education cannot be allowed to be a purely economic activity; it is a welfare activity aimed at achieving more egalitarian and prosperous society to bring out social transformation and upliftment of the nation. D (a) This Court further opined that private unaided minority and non-minority institutions have a right to occupation under Article 19(1), the said right is not absolute and subject to reasonable restriction in larger public interest of students community to promote merit, achieve excellence and curb malpractices by holding common entrance test for admission and fee structure can undoubtedly be regulated in such institutions. (b) This Court in Modern Dental College and Research Centre (supra) also held that unless the admission procedure and fixation of fees are regulated and controlled at the initial stage, the evil of unfair practice of granting admission on available seats guided by the paying capacity of the candidates would be impossible to curb. The Court also noted the menace of the fee prevailing in the various educational professional institutions and in the context of Articles 19(1)(g), 19(6), 30, 41and 47, and considering the Schedule VII, Entry 25 of List III and Entry 63-66 of List I, this Court held that concerning “professional unaided minority” and “non-minority institutions”, common entrance test has to be conducted by the State and regulation of the fee structure by it is permissible. The Court took note of the large-scale malpractices, exploitation of students, profiteering, and commercialisation and entrance examination held by various institutions failing the triple test of having fair, transparent, and non-exploitative process. The Court held that H

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A reasonable restriction can be imposed to regulate admission and fee structure. The Court also observed about statutory functioning of the healthcare system in the country and the poor functioning of the MCI. (c) The Court further considered the criteria of proportionality and emphasised for proper balance between the two facets viz. the B rights and limitations imposed upon it by a statute. The concept of proportionality is an appropriate criterion.The law imposing restrictions will be treated as proportional if it is meant to achieve a proper purpose. If the measures taken to achieve such a goal are rationally connected to the object, such steps are necessary. The Court considered the concept of proportionality thus: C “57. It is well settled that the right under Article 19(1)(g) is not absolute in terms but is subject to reasonable restrictions under clause (6). Reasonableness has to be determined having regard to the nature of right alleged to be infringed, purpose of the restriction, extent of restriction and other relevant factors. In D applying these factors, one cannot lose sight of the directive principles of State policy. The Court has to try to strike a just balance between the fundamental rights and the larger interest of the society. The Court interferes with a statute if it clearly violates the fundamental rights. The Court proceeds on the footing that E the legislature understands the needs of the people. The Constitution is primarily for the common man. Larger interest and welfare of student community to promote merit, achieve excellence and curb malpractices, fee and admissions can certainly be regulated.

F 58. Let us carry out this discussion in some more detail as this is the central issue raised by the appellants. Doctrine of proportionality explained and applied

59. Undoubtedly, the right to establish and manage the educational institutions is a fundamental right recognised under Article 19(1)(g) G of the Act. It also cannot be denied that this right is not “absolute” and is subject to limitations i.e. “reasonable restrictions” that can be imposed by law on the exercise of the rights that are conferred under clause (1) of Article 19. Those restrictions, however, have to be reasonable. Further, such restrictions should be “in the interest of general public”, which conditions are stipulated in clause (6) of H Article 19, as under:

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 587 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

“19. (6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law insofar as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law insofar as it relates to, or prevent the State from making any law relating to— (i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or C (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.”

60. Another significant feature which can be noticed from the reading of the aforesaid clause is that the State is empowered to make any law relating to the professional or technical qualifications necessary for practising any profession or carrying on any occupation or trade or business. Thus, while examining as to whether the impugned provisions of the statute and rules amount to reasonable restrictions and are brought out in the interest of the general public, the exercise that is required to be undertaken is the balancing of fundamental right to carry on occupation on the one hand and the restrictions imposed on the other hand. This is what is known as “doctrine of proportionality”. Jurisprudentially, “proportionality” can be defined as the set of rules determining the necessary and sufficient conditions for limitation of a constitutionally protected right by a law to be constitutionally permissible. According to Aharon Barak (former Chief Justice, Supreme Court of Israel), there are four sub-components of proportionality which need to be satisfied [Aharon Barak, Proportionality: Constitutional Rights and Their Limitation G (Cambridge University Press 2012)], a limitation of a constitutional right will be constitutionally permissible if: (i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation H are rationally connected to the fulfilment of that purpose;

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A (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation (“proportionality strictosensu” or “balancing”) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.

61. Modern theory of constitutional rights draws a fundamental distinction between the scope of the constitutional rights, and the extent of its protection. Insofar as the scope of constitutional rights is concerned, it marks the outer boundaries of the said rights and defines its contents. The extent of its protection prescribes the limitations on the exercises of the rights within its scope. In that sense, it defines the justification for limitations that can be imposed on such a right.

D 62. It is now almost accepted that there are no absolute constitutional rights and all such rights are related. As per the analysis of Aharon Barak, two key elements in developing the modern constitutional theory of recognising positive constitutional rights along with its limitations are the notions of democracy and the rule of law. Thus, the requirement of proportional limitations E of constitutional rights by a sub-constitutional law i.e. the statute, is derived from an interpretation of the notion of democracy itself. Insofar as the Indian Constitution is concerned, democracy is treated as the basic feature of the Constitution and is specifically accorded a constitutional status that is recognised in the Preamble F of the Constitution itself. It is also unerringly accepted that this notion of democracy includes human rights which is the cornerstone of Indian democracy. Once we accept the aforesaid theory (and there cannot be any denial thereof), as a fortiori, it has also to be accepted that democracy is based on a balance between constitutional rights and the public interests. In fact, such G a provision in Article 19 itself on the one hand guarantees some certain freedoms in clause (1) of Article 19 and at the same time empowers the State to impose reasonable restrictions on those freedoms in public interest. This notion accepts the modern constitutional theory that the constitutional rights are related. This H relativity means that a constitutional licence to limit those rights is

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 589 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

granted where such a limitation will be justified to protect public interest or the rights of others. This phenomenon—of both the right and its limitation in the Constitution—exemplifies the inherent tension between democracy’s two fundamental elements. On the one hand is the right’s element, which constitutes a fundamental component of substantive democracy; on the other hand is the people element, limiting those very rights through their representatives. These two constitute a fundamental component of the notion of democracy, though this time in its formal aspect. How can this tension be resolved? The answer is that this tension is not resolved by eliminating the “losing” facet from the Constitution. Rather, the tension is resolved by way of a proper balancing of the competing principles. This is one of the expressions of the multi-faceted nature of democracy. Indeed, the inherent tension between democracy’s different facets is a “constructive tension”. It enables each facet to develop while harmoniously coexisting with the others. The best way to achieve this peaceful coexistence is through balancing between the competing interests. Such balancing enables each facet to develop alongside the other facets, not in their place. This tension between the two fundamental aspects—rights on the one hand and its limitation on the other hand—is to be resolved by balancing the two so that they harmoniously coexist with each other. This balancing is to be done keeping in mind the relative social values of each competitive aspects when considered in proper context.

63. In this direction, the next question that arises is as to what criteria is to be adopted for a proper balance between the two facets viz. the rights and limitations imposed upon it by a statute. F Here comes the concept of “proportionality”, which is a proper criterion. To put it pithily, when a law limits a constitutional right, such a limitation is constitutional if it is proportional. The law imposing restrictions will be treated as proportional if it is meant to achieve a proper purpose, and if the measures taken to achieve such a purpose are rationally connected to the purpose, and such G measures are necessary. This essence of doctrine of proportionality is beautifully captured by Dickson, C.J. of Canada in R. v. Oakes, (1986) 1 SCR 103 (Can SC) in the following words (at p. 138): “To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be H

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A satisfied. First, the objective, which the measures, responsible for a limit on a Charter right or freedom are designed to serve, must be “of” sufficient importance to warrant overriding a constitutional protected right or freedom … Second … the party invoking Section 1 must show that the means chosen are reasonable and demonstrably justified. This involves “a form B of proportionality test…” Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, C the measures adopted must be … rationally connected to the objective. Second, the means … should impair “as little as possible” the right or freedom in question … Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”. The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society.”

64. The exercise which, therefore, is to be taken is to find out as to whether the limitation of constitutional rights is for a purpose that is reasonable and necessary in a democratic society and such an exercise involves the weighing up of competitive values, and ultimately an assessment based on proportionality i.e. balancing of different interests.” F (d) In Modern Dental College and Research Centre (supra), the Court, while dealing with reasonable restriction on rights under Article 19 observed: “65. We may unhesitatingly remark that this doctrine of proportionality, explained hereinabove in brief, is enshrined in Article G 19 itself when we read clause (1) along with clause (6) thereof. While defining as to what constitutes a reasonable restriction, this Court in a plethora of judgments has held that the expression “reasonable restriction” seeks to strike a balance between the freedom guaranteed by any of the sub-clauses of clause (1) of H

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 591 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

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A (e) Concerning necessity of regulatory framework, the Court opined: “85. No doubt, we have entered into an era of liberalisation of the economy, famously termed as “globalisation” as well. In such an economy, private players are undoubtedly given much more freedom in economic activities, as the recognition has drawn to the realities that the economic activities, including profession, business, occupation, etc. are not normal forte of the State and the State should have minimal role therein. It is for this reason, many sectors which were hitherto State monopolies, like telecom, power, insurance, civil aviation, etc. have now opened up for private enterprise. Even in the field of education the State/Government was playing a dominant role inasmuch as it was thought desirable that in a welfare State it is the fundamental duty, as a component of directive principles, to impart education to the masses and commoners as well as weaker sections of the society, at affordable rates. It was almost treated as solemn duty of the Government to establish adequate number of educational institutions at all levels i.e. from primary level to higher education and in all fields including technical, scientific and professional, to cater to the varied sections of the society, particularly, when one-third of the population of the country is poverty-stricken with large percentage as illiterate. With E liberalisation, the Government has encouraged establishments of privately managed institutions. It is done with the hope that the private sector will play vital role in the field of education with philanthropic approach/ideals in mind as this activity is not to be taken for the purpose of profiteering, but more as a societal welfare.

86. It is, therefore, to be borne in mind that the occupation of education cannot be treated on a par with other economic activities. In this field, the State cannot remain a mute spectator and has to necessarily step in in order to prevent exploitation, privatisation and commercialisation by the private sector. It would be pertinent to mention that even in respect of those economic activities which are undertaken by the private sector essentially with the objective of profit-making (and there is nothing bad about it), while throwing open such kind of business activities in the hands of private sector, the State has introduced regulatory regime as well by providing regulations under the relevant statutes.

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 593 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

89. With the advent of globalisation and liberalisation, though the market economy is restored, at the same time, it is also felt that market economies should not exist in pure form. Some regulation of the various industries is required rather than allowing self- regulation by market forces. This intervention through regulatory bodies, particularly in pricing, is considered necessary for the welfare of the society and the economists point out that such regulatory economy does not rob the character of a market economy which still remains a market economy. Justification for regulatory bodies even in such industries managed by private sector lies in the welfare of people. Regulatory measures are felt necessary to promote basic well being for individuals in need. It is because of this reason that we find regulatory bodies in all vital industries like, insurance, electricity and power, telecommunications, etc.

90. Thus, it is felt that in any welfare economy, even for private industries, there is a need for regulatory body and such a regulatory framework for education sector becomes all the more necessary. It would be more so when, unlike other industries, commercialisation of education is not permitted as mandated by the Constitution of India, backed by various judgments of this Court to the effect that profiteering in the education is to be avoided.” E (f) The Court heldthat the regulatory mechanism for centralised examination is legal and constitutional and does not infringe on the fundamental rights of the minority or non-minority to establish and administer educational institutions. It observed: “57. It is well settled that the right under Article 19(1)(g) is not absolute in terms but is subject to reasonable restrictions under clause (6). Reasonableness has to be determined having regard to the nature of right alleged to be infringed, purpose of the restriction, extent of restriction and other relevant factors. In applying these factors, one cannot lose sight of the directive principles of State policy. The Court has to try to strike a just balance between the fundamental rights and the larger interest of the society. The Court interferes with a statute if it clearly violates the fundamental rights. The Court proceeds on the footing that the legislature understands the needs of the people. The Constitution is primarily for the common man. Larger interest and H

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A welfare of student community to promote merit, achieve excellence and curb malpractices, fee and admissions can certainly be regulated. “97. The very object of setting up institutions for the State is a welfare function, for the purpose of excelling in educational standards. On the other hand, the primary motivation for private parties is profit motive or philanthropy. When the primary motivation for institutions is profit motive, it is natural that many means to achieve the same shall be adopted by the private institutions which leads to a large degree of secrecy and corruption. As such, the mechanism of regulations as envisaged under the impugned laws is legal, constitutional, fair, transparent and uphold the primary criteria of merit. The same does not infringe on the fundamental rights of either the minorities or the non-minorities to establish and administer educational institutions and must as such be upheld as valid.” D (g) The Court also took note of prevailing situation of corruption in the field of education and commercialisation of education thus: “68. We are of the view that the larger public interest warrants such a measure. Having regard to the malpractices which are noticed in the CET conducted by such private institutions themselves, for which plethora of material is produced, it is, undoubtedly, in the larger interest and welfare of the student community to promote merit, add excellence and curb malpractices. The extent of restriction has to be viewed keeping in view all these factors and, therefore, we feel that the impugned provisions which may amount to “restrictions” on the right of the appellants to carry on their “occupation”, are clearly “reasonable” and satisfied the test of proportionality.”

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

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 595 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

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

96. As is evident from the facts mentioned by the State of Madhya Pradesh in its reply filed in IA No. 83 of 2015, the Association of Private Colleges has failed to hold their CETs in a fair, transparent and rational manner. The accountability and transparency in State actions is much higher than in private actions. It is needless to say that the incidents of corruption in the State machinery were brought in the public eye immediately and have been addressed expeditiously. The same could never have been done in case of private actions. Even on a keel of comparative efficiency, it is more than evident that the State process is far more transparent and fair than one that is devised by the private colleges which have no mechanism of any checks and balances. The State agencies are subject to the Right to Information Act, audit, State Legislature, anti-corruption agencies, Lokayukta, etc. D

172. Maintenance and improvement of public health and to provide health care and medical services is the constitutional obligation of the State. To discharge this constitutional obligation, the State must have the doctors with professional excellence and commitment who are ready to give medical advice and services to the public at large. The State can satisfactorily discharge its constitutional obligation only when the aspiring students enter into the profession based on merit. None of these lofty ideals can be achieved without having good and committed medical professionals.

190. For the foregoing discussion, I hold that the State has the legislative competence to enact the impugned legislation—the 2007 Act to hold common entrance test for admission to professional educational institutions and to determine the fee and the High Court has rightly upheld the validity of the impugned legislation. Regulations sought to be imposed by the impugned legislation on admission by common entrance test conducted by the State and determination of fee are in compliance of the directions and observations in T.M.A. Pai, (2002) 8 SCC 481, Islamic Academy of Education, (2003) 6 SCC 697 and P.A. Inamdar, (2005) 6 SCC 537. Regulations on admission process are necessary in the larger public interest and welfare of the student community to H

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A ensure fairness and transparency in the admission and to promote merit and excellence. Regulation on fixation of fee is to protect the rights of the students in having access to higher education without being subjected to exploitation in the form of profiteering. With the above reasonings, I concur with the majority view in upholding the validity of the impugned legislation and affirm the well-merited decision of the High Court.” (h) The Court in Modern Dental College and Research Centre (supra) while considering the decision in T.M.A. Pai Foundation (supra) opined that Court did not give complete freedom to admit the students and also as to fixation of fee. Admission has to be based on merit, particularly in professional educational institutions. This Court observed thus: “34. In the modern age, therefore, particularly after the policy of liberalisation adopted by the State, educational institutions by private bodies are allowed to be established. There is a paradigm shift over from the era of complete government control over education (like other economic and commercial activities) to a situation where private players are allowed to mushroom. But at the same time, regulatory mechanism is provided thereby ensuring that such private institutions work within such regulatory regime. When it comes to education, it is expected that unaided private institutions provide quality education and at the same time they are given “freedom in joints” with minimal Government interference, except what comes under regulatory regime. Though education is now treated as an “occupation” and, thus, has become a fundamental right guaranteed under Article 19(1)(g) of the Constitution, at the same time shackles are put insofar as this particular occupation is concerned which is termed as “noble”. Therefore, profiteering and commercialisation are not permitted and no capitation fee can be charged. The admission of students has to be on merit and not at the whims and fancies of the educational institutions. Merit G can be tested by adopting some methodology and few such methods are suggested in T.M.A. Pai Foundation, (2002) 8 SCC 481, which includes holding of CET. It is to be ensured that this admission process meets the triple test of transparency, fairness and non-exploitativeness.

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 597 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

37. Insofar as the first part of the question is concerned, it does not pose any problem and the answer goes in favour of the appellants. We may recapitulate here that Article 26 of the Constitution gives freedom to every religious denomination or any section thereof by conferring certain rights which include right to establish and maintain institutions for religious and charitable purposes. Thus, insofar as religious denominations or any section thereof are concerned, they were given right to establish and maintain institutions for religious and charitable purposes making it a fundamental right. Likewise, Article 30 confers upon minorities fundamental right to establish and administer educational institutions. Insofar as Article 26 is concerned, it comes under the caption “Right to Freedom of Religion”. As far as Article 30 is concerned, it is under the heading “Cultural and Educational Rights”. Thus, rights of the minorities to establish and administer educational institutions were always recognised as fundamental rights. Further, the right of private unaided professional institutions to establish and manage educational institutions was not clearly recognised as a fundamental right covered under Article 19(1)(g) and categorically rejected by the Constitution Bench of this Court comprising of five Judges in Unni Krishnan, (1993) 1 SCC 645. It was held in para 198 of the judgment that: (SCC p. 752) “198. [w]e are, therefore, of the opinion, adopting the line of reasoning in State of Bombay v. R.M.D. Chamarbaugwala, AIR 1957 SC 699, that imparting education cannot be treated as a trade or business. Education cannot be allowed to be converted into commerce nor can petitioners seek to obtain the said result by relying upon the wider meaning of F “occupation”.”

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A administrative staff, and an activity is carried on that results in the imparting of knowledge to the students, must necessarily be regarded as an occupation, even if there is no element of profit generation. It is difficult to comprehend that education, per se, will not fall under any of the four expressions in Article 19(1)(g). “Occupation” would be an activity of a person undertaken as a means of livelihood or a mission in life. The abovequoted observations in Sodan Singh case, (1989) 4 SCC 155, correctly interpret the expression “occupation” in Article 19(1)(g).”

40. It becomes necessary to point out that while treating the managing of educational institution as an “occupation”, the Court was categorical that this activity could not be treated as “business” or “profession”. This right to carry on the occupation that education is, the same is not put on a par with other occupations or business activities or even other professions. It is a category apart which was carved out by this Court in T.M.A. Pai Foundation, (2002) 8 SCC 481. There was a specific purpose for not doing so. Education is treated as a noble “occupation” on “no profit no loss” basis. Thus, those who establish and are managing the educational institutions are not expected to indulge in profiteering or commercialising this noble activity. Keeping this objective in mind, the Court did not give complete freedom to the educational institutions in respect of right to admit the students and also with regard to fixation of fee. As far as admission of students is concerned, the Court was categorical that such admissions have to be on the basis of merit when it comes to higher education, particularly in professional institutions.” (i) In Modern Dental College and Research Centre (supra), the Court considered decision in T.M.A. Pai Foundation (supra), and observed that Government is permitted to frame regulations for unaided private professional educational institutions, thus: G “42. In order to see that merit is adjudged suitably and appropriately, the Court candidly laid down that the procedure for admission should be so devised which satisfies the triple test of being fair, transparent and non-exploitative. The next question was as to how the aforesaid objective could be achieved? For H determining such merit, the Court showed the path in para 59 by

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 599 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

observing that such merit should be determined either by the marks A that students obtained at qualifying examination or at CET conducted by the institutions or in the case of professional colleges, by government agencies. Para 59 suggesting these modes reads as under: (T.M.A. Pai Foundation case,(2002) 8 SCC 481, SCC p. 546) B “59. Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school leaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by government agencies.” C

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

43. In order to ensure that the said CET is fair, transparent and merit-based, T.M.A. Pai Foundation, (2002) 8 SCC 481, also D permitted the Government to frame regulations for unaided private professional educational institutions. Paras 67 and 68 which permit framing of such regulations are reproduced below: (SCC p. 549) “67. We now come to the regulations that can be framed relating to private unaided professional institutions. E

68. It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forego or discard the principle of merit. It would, therefore, be permissible for the university or the Government, at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while, at the same time, giving the management sufficient discretion in admitting students. This can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the management out of those students who have passed the common entrance test held by itself or by the State/university and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counselling by the State agency. This H