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

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A will incidentally take care of poorer and backward sections of the society. The prescription of percentage for this purpose has to be done by the Government according to the local needs and different percentages can be fixed for minority unaided and non-minority unaided and professional colleges. The same principles may be applied to other non-professional but unaided educational institutions viz. graduation and postgraduation non- professional colleges or institutes.”

44. A plea was raised by the appellants that by exercising the power to frame regulations, the State could not usurp the very function of conducting this admission test by the educational institutions. It was argued that it only meant that such a CET is to be conducted by the educational institutions themselves and the Government could only frame the regulations to regulate such admission tests to be conducted by the educational institutions and could not take away the function of holding CET.

481. In this behalf, we would like to recapitulate that in T.M.A. E Pai Foundation, (2002) 8 SCC 481, a Bench of eleven Judges dealt with the issues of scope of right to set up educational institutions by private aided or unaided, minority or non-minority institutions and the extent of government regulation of the said right. It was held that the right to establish and administer an institution included the right to admit students and to set up a F reasonable fee structure. But the said right could be regulated to ensure maintenance of proper academic standards, atmosphere and infrastructure. Fixing of rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating G students for admissions would be unacceptable restrictions. However, occupation of education was not business but profession involving charitable activity. The State can forbid charging of capitation fee and profiteering. The object of setting up educational institution is not to make profit. There could, however, be a reasonable revenue surplus for development of education. For H

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 601 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

admission, merit must play an important role. The State or the A University could require private unaided institution to provide for merit-based selection while giving sufficient discretion in admitting students. Certain percentage of seats could be reserved for admission by management out of students who have passed CET held by the institution or by the State/University. Interpretation of certain observations in para 68 of the judgment in T.M.A. Pai Foundation, (2002) 8 SCC 481, has been a matter of debate to which we will advert to in detail hereinafter.

48. The matter was then considered by a larger Bench of seven Judges in P.A. Inamdar, (2005) 6 SCC 537. It was held that the two committees for monitoring admission procedure and determining fee structure as per the judgment in Islamic Academy of Education, (2003) 6 SCC 697, were permissible as regulatory measures aimed at protecting the student community as a whole as also the minority themselves in maintaining required standards of professional education on non-exploitative terms. This did not violate Article 30(1) or Article 19(1)(g). It was observed that: (P.A. Inamdar case, (2005) 6 SCC 537, SCC p. 607, para 145) “145. … Unless the admission procedure and fixation of fees is regulated and controlled at the initial stage, the evil of unfair practice of granting admission on available seats guided by the paying capacity of the candidates would be impossible to curb.” (emphasis supplied) On this ground, suggestion of the institutions to achieve the purpose for which committees had been set up by post-audit checks after the institutions adopted their own admission procedure and fee structure was rejected. The committees were, thus, allowed to continue for regulating the admissions and the fee structure until a suitable legislation or regulations were framed by the States. It was left to the Central Government and the State Governments G to come out with a detailed well-thought out legislation setting up a suitable mechanism for regulating admission procedure and fee structure. Para 68 in T.M.A. Pai Foundation case, (2002) 8 SCC 481, was explained by stating that observations permitting the management to reserve certain seats were meant for poorer and H

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A backward sections as per local needs. It did not mean to ignore the merit. It was also held that CET could be held, otherwise, merit becomes a casualty. There is, thus, no bar to CET being held by a State agency when the law so provides.” (j) The Court held that entrance examination is a regulatory measure and does not infringe on the rights of the institutions. It opined: “49. Thus, the contention raised on behalf of the appellants that the private medical colleges had absolute right to make admissions or to fix fee is not consistent with the earlier decisions of this Court. Neither merit could be compromised in admissions to professional institutions nor capitation fee could be permitted. To achieve these objects it is open to the State to introduce regulatory measures. We are unable to accept the submission that the State could intervene only after proving that merit was compromised or capitation fee was being charged. As observed in the earlier decisions of this Court, post-audit measures would not meet the regulatory requirements. Control was required at the initial stage itself. Therefore, our answer to the first question is that though “occupation” is a fundamental right, which gives right to the educational institutions to admit the students and also fix the fee, at the same time, scope of such rights has been discussed and limitations imposed thereupon by the aforesaid judgments themselves explaining the nature of limitations on these rights.

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

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

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 603 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

Pai Foundation, (2002) 8 SCC 481. Even while doing so, this right came with certain clutches and shackles. The Court made it clear that it is a noble occupation which would not permit commercialisation or profiteering and, therefore, such educational institutions are to be run on “no profit no loss basis”. While explaining the scope of this right, right to admit students and right to fix fee was accepted as facets of this right, the Court again added caution thereto by mandating that admissions to the educational institutions imparting higher education, and in particular professional education, have to admit the students based on merit. For judging the merit, the Court indicated that there can be a CET. While doing so, it also specifically stated that in case of admission to professional courses such a CET can be conducted by the State. If such a power is exercised by the State assuming the function of CET, this was so recognised in T.M.A. Pai Foundation, (2002) 8 SCC 481 itself, as a measure of “reasonable restriction on the said right”. Islamic Academy D of Education, (2003) 6 SCC 697, further clarified the contour of such function of the State while interpreting T.M.A. Pai Foundation, (2002) 8 SCC 481,itself wherein it was held that there can be committees constituted to supervise conducting of such CET. This process of interpretative balancing and constitutional balancing was remarkably achieved in P.A. Inamdar, E (2005) 6 SCC 537, by not only giving its premature to deholding (sic imprimatur to the holding) of CET but it went further to hold that agency conducting the CET must be the one which enjoys the utmost credibility and expertise in the matter to achieve fulfilment of twin objectives of transparency and merit and for F that purpose it permitted the State to provide a procedure of holding a CET in the interest of securing fair and merit-based admissions and preventing maladministration.” This Court also considered the balancing of rights even if there is a violation of fundamental rights of the appellants to admit students by Central Examination Test by State. It held as under: G

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

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A implementing ambitious constitutional promises, the matter is to be examined in a different hue. It is this spirit which we have kept in mind while balancing the right of these educational institutions given to them under Article 19(1)(g) on the one hand and reasonableness of the restrictions which have been imposed by the impugned legislation. The right to admission or right to fix the B fee guaranteed to these appellants is not taken away completely, as feared. T.M.A. Pai Foundation, (2002) 8 SCC 481, gives autonomy to such institutions which remains intact. Holding of CET under the control of the State does not impinge on this autonomy. Admission is still in the hands of these institutions. Once C it is even conceded by the appellants that in admission of students “triple test” is to be met, the impugned legislation aims at that. After all, the sole purpose of holding CET is to adjudge merit and to ensure that admissions which are done by the educational institutions, are strictly on merit. This is again to ensure larger public interest. It is beyond comprehension that merely by assuming the power to hold CET, fundamental right of the appellants to admit the students is taken away. Likewise, when it comes to fixation of fee, as already dealt with in detail, the main purpose is that the State acts as a regulator and satisfies itself that the fee which is proposed by the educational institution does not have the element of profiteering and also that no capitation fee, etc. is charged. In fact, this dual function of regulatory nature is going to advance the public interest inasmuch as those students who are otherwise meritorious but are not in a position to meet unreasonable demands of capitation fee, etc. are not deprived of getting admissions. The impugned provisions, therefore, are aimed at seeking laudable objectives in larger public interest. Law is not static, it has to change with changing times and changing social/ societal conditions.” (k) The Court held that MCI Actand the rules prescribed reasonable restrictions under Article 19(6),thus: G “53. After referring to paras 136 and 137 in P.A. Inamdar, (2005) 6 SCC 537, it was observed: (Assn. of Private Dental case, 2009 SCC OnLine MP 760, SCC OnLine MP paras 34 & 37) “34. It will be thus clear from paras 136 and 137 of the judgment in P.A. Inamdar, (2005) 6 SCC 537, quoted above, that

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 605 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

admissions to private unaided professional educational institutions can be made on the basis of merit of candidates determined in the common entrance test followed by centralised counselling by the institutions imparting same or similar professional education together or by the State or by an agency which must enjoy utmost credibility and expertise and that the common entrance test followed by centralised counselling must satisfy the triple test of being fair, transparent and non- exploitative. Thus, the judgments of the Supreme Court in T.M.A. Pai Foundation, (2002) 8 SCC 481 and P.A. Inamdar, (2005) 6 SCC 537, permit holding of a common entrance test for determination of merit for admission to private unaided professional educational institutions by the State as well as any agency which enjoy utmost credibility and expertise in the matter and which should ensure transparency in merit. * * *

37. Sections 3(d), 6 and 7 of the 2007 Act by providing that the common entrance test for determining merit for admissions in the private unaided professional educational institutions by a common entrance test to be conducted by the State or by an agency authorised by the State do not interfere with the autonomy of private unaided professional educational institutions, as such private professional educational institutions are entitled to collect the fees from the students admitted to the institutions on the basis of merit, appoint their own staff (teaching and non-teaching), discipline and remove the staff, provide infrastructure and other facilities for students and do all such other things as are necessary to impart professional education to the students. Sections 3(d), 6 and 7 of the 2007 Act, therefore, do not impinge on the fundamental right to carry on the occupation of establishing and administering professional educational institutions as an occupation. The only purpose of Sections 3(d), 6 and 7 of the 2007 Act is to ensure that students of excellence are selected on the basis of a common entrance test conducted by the State or an agency authorised by the State and that students without excellence and merit do not make entry into these professional educational institutions through malpractices and influence. As has been held both in H

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

32Copy pinpoint32. In Sankalp Charitable Trust (supra), various orders passed by this Court on different dates have been reported. This Court noted that NEET has been restored by judgment dated 11.4.2016 by which the judgment and order in Christian Medical College, Velloreand others was recalled. The respondents were directed to hold examination for admission to MBBS and BDS courses for the academic year 2016-17. The Court passed following order dated 28.4.2016: E “10. In view of the submissions made on behalf of the respondents, we record that NEET shall be held as stated by the respondents. We further clarify that notwithstanding any order passed by any court earlier with regard to not holding NEET, this order shall operate. Therefore, no further order is required to be passed at this stage. F

11. It may be mentioned here that some learned counsel representing those who are not parties to this petition have made submissions that in view of the judgment passed in Christian Medical College, Vellore v. Union of India, it would not be proper to hold NEET and this order should not affect pending G matters.

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

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 607 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

On 6.5.2016, the Court directed that no examination shall be permitted to be held for admission to MBBS or BDS studies by any private college or association or any private/deemed university. Relevant portion is extracted hereunder: “23. In view of the request made by the learned Solicitor General, hearing is adjourned to 9-5-2016. However, it is clarified that no examination shall be permitted to be held for admission to MBBS or BDS studies by any private college or association or any private/ deemed university.

32. In a recent Constitution Bench judgment dated 2-5-2016, in F Modern Dental College & Research Centre v. State of M.P., (2016) 7 SCC 353, the stand of the private medical colleges (including minorities) that conducting of entrance test by the State violated the right of autonomy of the said colleges, has been rejected. The State law providing for conducting of entrance test was upheld, rejecting the contention that the State had no legislative G competence on the subject. At the same time, it was held that the admission involved two aspects. First, the adoption of setting up of minimum standards of education and coordination of such standards which aspect was covered exclusively by List I Entry

66. The second aspect is with regard to implementation of the H

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

33Copy pinpoint33. Prima facie, we do not find any infirmity in the NEET regulation B on the ground that it affects the rights of the States or the private institutions. Special provisions for reservation of any category are not subject-matter of NEET nor are the rights of minority in any manner affected by NEET. NEET only provides for conducting entrance test for eligibility for admission to the MBBS/BDS course.

34Copy pinpoint34. We thus, do not find any merit in the applications seeking modification of the order dated 28-4-2016.”

33. In JainarayanChouksey(supra), the Court followed the decision in Modern Dental College and Research Centre (supra) and opined that the said decision encompasses not only the State-conducted centralised test but also State-conducted centralised counselling. This Court issued a mandate for both the purposes, i.e., examination as well as counselling and held: “5. We have heard the learned counsel for the parties at length. We observe that mandate of our judgment was to hold centralised entrance test followed by centralised State counselling by the State to make it a one composite process. We, therefore, direct that admission to all medical seats shall be conducted by centralised counselling only by the State Government and none else.

6. If any counselling has been done by any college or university and any admission to any medical seat has been given so far, such admission shall stand cancelled forthwith and admission shall be given only as per centralised counselling done by the State Government.”

34. In D.Y. Patil Vidyapeeth (supra), the Court again clarified that the decision in Modern Dental College and Research Centre G (supra) encompasses not only centralised State-conducted test but also centralised State-conducted counselling.

35Copy pinpoint35. The MCI amended vide notification dated 10.3.2017 the Regulation on Graduate Medical Education, 1997 and Post Graduate Medical Education Regulations, 2000 providing for common counselling H

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 609 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

for admission to MBBS and post-graduate medicine courses on the basis of NEET. The said notifications were challenged by minority institutions, deemed universities, and other private institutions by filing a writ petition before this Court. The Court vide order dated 9.5.2017 in Dar-us-Salam Educational Trust and Ors. v. Medical Council of India and Ors., (Writ Petition (C) No.267 of 2017) opined that common counselling does not in any manner affect the right of minority institutions to admit students of their own minority community. The Court held thus: “10. Common counselling conducted by the DGHS/State Government will not in any manner affect the rights of minority institutions to admit students of their respective minority community. The minority quota seats, if any, in institutions run by minorities will be filled up by minority students only. Therefore, the rights of minority institutions are fully protected. Needless to say this arrangement will not apply to the States of Andhra Pradesh, Telangana and Jammu & Kashmir. As far as the other States are concerned, needless to say, this arrangement shall apply to all the colleges unless this Court has passed any different or separate order.”

36Copy pinpoint36. In YatinkumarJasubhai Patel (supra), the Court held that introduction of NEET does not affect the 50% State quota seat in PG medicine course. The Court also considered Section 10D of the Act of E 1956 and regulations as amended by MCI. It opined as under: “9.4. However, it is the case on behalf of the petitioners that in view of the introduction of the NEET Scheme and in view of Section 10-D of the MCI Act, by which admissions are to be given on the basis of merit in the NEET, such an “institutional preference” would not be permissible. It is required to be noted that introduction of the NEET has, as such, nothing to do with any preference/institutional preference, more particularly the “institutional preference” as approved by this Court time and again. The purpose and object of the introduction of NEET was to conduct a uniform entrance examination for all medical educational institutions at the undergraduate level or postgraduate level and admissions at the undergraduate level and postgraduate level are to be given solely on the basis of the merits and/or marks obtained in the NEET examination only. It is required to be noted that earlier the respective universities including Gujarat University used to H

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A hold examination for postgraduate admission to medical courses and now instead of such tests by Gujarat University/universities concerned, merit is to be determined on the basis of the NEET examination results only and admissions are required to be given on the basis of such merits or marks obtained in NEET. The only obligation by virtue of introduction of NEET is that, once centralised admission test is conducted, the State, its agencies, universities and institutions cannot hold any separate test for the purpose of admission to postgraduate and PG and diploma courses and such seats are to be filled up by the State agencies, universities/ institutions for preparing merit list as per the score obtained by the applicants in NEET examination and therefore by introduction of NEET, Section 10-D of the MCI Act has been amended, consequently amendment to the Post-Graduate Education Regulations, 2000, admission to postgraduate courses are made providing for solely on the basis of the score secured by the candidates seeking admission based on centralised examination D i.e. NEET. 9.5. Even while giving admissions in the State quota/institutional reservation quota, still the admissions are required to be given on the basis of the merits determined on the basis of the NEET examination results. Under the circumstances, introduction of the E NEET Scheme, as such, has nothing to do with the “institutional preference”. Therefore, the change by introduction of the NEET Scheme shall not affect the institutional preference/reservation as approved by this Court from time to time in a catena of decisions, more particularly the decisions referred to hereinabove. Under F the guise of introduction of the NEET Scheme, the petitioners cannot be permitted to re-agitate and/or reopen the issue with respect to institutional preference which has been approved and settled by this Court in a catena of decisions, more particularly the decisions referred to hereinabove.”

37Copy pinpoint37. The notifications, which are questioned in the matters and the amendment made to Section 10D as introduced in the Act of 1956 and regulations as amended by the MCI and similar provisions inserted in the Dentists Act & Regulations, cannot be said to be taking away the rights of the unaided minority institutions or private institutions of making admission in any manner as it is permissible to provide regulatory H

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 611 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

mechanism at the national level and the entrance test applies even to All A India Institute of Medical Science (AIIMS) – the most reputed Institute of India. It is open to provide the regulatory mechanism for admission for such courses as held in T.M.A. Pai Foundation (supra) the qualification and conditions of eligibility in the interest of academic standards can be provided, and there could be regulatory measures for ensuring educational standards and maintaining excellence in the matter of professional institution. Thus, the decision in T.M.A. Pai Foundation (supra) rendered by 11-Judge Bench is juxtaposedto the submission raised on behalf of petitioners.

38Copy pinpoint38. In P.A. Inamdar (supra), the Court laid down the triple test of a fair, transparent and non-exploitative mechanism and if the admission procedure adopted by private institution does not satisfy all or any of the triple tests, it held that the admission procedure can be taken over by the State substituting its process.This aspect was gauged in Modern Dental College and Research Centre (supra) in a broader perspective considering prevailing situation of capitation fee and education becoming saleable commodity. A decision has been taken to regulate admission in professional colleges on national basis so as to wipe out the corruption and various evils from the system. Even, the NEET has been made applicable to such premier institution like All India Institute of Medical Sciences (AIIMS)and so many others.The decision has been taken considering the overall national scenario, there cannot be any exemption, otherwise, there would be no end to such claims and multiple examinations. It would not be possible to eradicate evils. We cannot restore overall derogatory situation which prevailed before introduction of NEET. Still, there are several loopholes, which are to be plugged in the admission procedure. Unscrupulous practices are being adopted by private colleges of not admitting students sponsored by centralised counselling committee.The minority and private institutions have to admit students based on merit in the permissible category, based on NEET as per procedure prescribed under the Act and Regulations.

39Copy pinpoint39. In Faculty Association of All India Institute of Medical G Sciences v. Union of India and Ors., (2013) 11 SCC 246, concerning issue of reservation in super-speciality, the Court opined: “22. Although the matter has been argued at some length, the main issue raised regarding reservation at the superspeciality level has already been considered in Indra Sawhney case, 1992 Supp H

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A (3) SCC 217, by a nine-Judge Bench of this Court. Having regard to such decision, we are not inclined to take any view other than the view expressed by the nine-Judge Bench on the issue. Apart from the decisions rendered by this Court in Jagadish Saran case, (1980) 2 SCC 768 and Pradeep Jain case, (1984) 3 SCC 654, the issue also fell for consideration in Preeti Srivastava case, B (1999) 7 SCC 120, which was also decided by a Bench of five Judges. While in Jagadish Saran case, (1980) 2 SCC 768 and in Pradeep Jain case, (1984) 3 SCC 654, it was categorically held that there could be no compromise with merit at the superspeciality stage, the same sentiments were also expressed in Preeti C Srivastava case, (1999) 7 SCC 120, as well.

23. In Preeti Srivastava case, (1999) 7 SCC 120, the Constitution Bench had an occasion to consider Regulation 27 of the Post Graduate Institute of Medical Education and Research, Chandigarh Regulations, 1967, whereby 20% of seats in every course of study in the institute was to be reserved for candidates belonging to the Scheduled Castes, Scheduled Tribes or other categories of persons, in accordance with the general rules of the Central Government promulgated from time to time. The Constitution Bench came to the conclusion that Regulation 27 could not have any application at the highest level of superspeciality as this would defeat the very object of imparting the best possible training to selected meritorious candidates, who could contribute to the advancement of knowledge in the field of medical research and its applications. Their Lordships ultimately went on to hold that there could not be any type of relaxation at the superspeciality level.

24. In para 836 of the judgment in Indra Sawhney case, 1992 Supp (3) SCC 217, it was observed that while the relevance and significance of merit at the stage of initial recruitment cannot be ignored, it cannot also be ignored that the same idea of reservation implies selection of a less meritorious person. It was also observed that at the same time such a price would have to be paid if the constitutional promise of social justice was to be redeemed. However, after making such suggestions, a note of caution was introduced in the very next paragraph in the light of Article 15 of the Constitution. A distinction was, however, made with regard to H

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 613 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

40Copy pinpoint40. In Re TheKerala Education Bill (supra), it was opined that minority could not ask for aid and recognition of educational institution, when such institutions are recognized it would be open to make the institution retaining its character as effective as an educational institution without destroying its minority character for the purpose as enshrined in Article 30. The institution has to be an effective vehicle of education for G all concerned.

41Copy pinpoint41. In Gandhi Faiz-e-am College, Shahjahanpur (supra), it was opined that regulation which imposes restrictions is bad; but regulation which facilitates is good. We find that in Frank Anthony Public School H

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A Employees’ Association (supra) it has been observed that institution has to be an effective vehicle of education for the minority community or other persons who resort to it. There cannot be any complaint of invasion of the fundamental right to administer the institution when it denies the members of its staff the opportunity to achieve the very object. The Court observed that minorities have no right to maladminister. The B notifications issued, amendment made to Section 10D of the Act of 1956 and regulations framed by MCI and similar provisions for dental courses providing for NEET cannot be said to be impinging upon the rights of the minority and the provisions of the Act and regulations framed by MCI under the Act of 1956, in DCI Act and regulations are required to be C observed by each and every institution. The regulatory measures under the Act/ Regulations cannot be said to be averse to the interest of such institutions, and such reasonable measurescan be carved out. They do not impinge upon the rights of institutions guaranteed under Articles 14, 19(1)(g), 25 and 30 of the Constitution of India.

42Copy pinpoint42. In T.M.A. Pai Foundation (supra), this Court opined that State maintained or aided educational institutions, whether established by the Government or the majority or a minority community cannot deny admission to a citizen on the grounds only of religion, race, caste or language. While considering the issueIn Re TheKerala Education Bill (supra), it was observed that the right of the private training colleges to admit students of their choice was severely restricted. It further observed that the right under Article 30(1) is not so absolute as to prevent the State from making any regulation whatsoever. The Government cannot be prevented from framing regulations that are in the national interest. This Court observed that it is difficult to comprehend that right to the religious or linguistic minorities are given by the Constitution, which would enable them to establish and administer educational institutions in a manner to conflict with the other Parts of the Constitution. There is no reason why conditions for the welfare of students and teachers should not be made, but any law or rule or regulation that would put the educational institutions run by the minorities at a disadvantage when compared to the institutions run by the others will have to be struck down. The law of the land includes rules and regulations that must apply equally to the majority as well as minority institutions. The minority institutions must be allowed to do what non-minority is permitted to do. They have to comply with the conditions of recognition, which cannot be such as to whittle down the right guaranteed under Article 30 of the Constitution.

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 615 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

43Copy pinpoint43. In Brahmo Samaj Education Society (supra), it was held that State could impose necessary conditions for proper maintenance of standards of education and to check maladministration.

44Copy pinpoint44. On behalf of the appellants, it was submitted that individual autonomy is the concern of any Government. There should not be interference to defeat the rights conferred by the Constitution. Reliance B has been placed on Gobind v. State of Madhya Pradesh (supra) in which this Court held: “20. There can be no doubt that the makers of our Constitution wanted to ensure conditions favourable to the pursuit of happiness. They certainly realized as Brandeis, J. said in his dissent in C Olmstead v. United States, 277 US 438, 471, the significance of man’s spiritual nature, of his feelings and of his intellect and that only a part of the pain, pleasure, satisfaction of life can be found in material things and therefore they must be deemed to have conferred upon the individual as against the Government a sphere where he should be let alone. D

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

23. Individual autonomy, perhaps the central concern of any system of limited Government, is protected in part under our F Constitution by explicit constitutional guarantees. In the application of the Constitution our contemplation cannot only be of what has been but what may be. Time works changes and brings into existence new conditions. Subtler and far reaching means of invading privacy will make it possible to be heard in the street G what is whispered in the closet. Yet, too broad a definition of privacy raises serious questions about the propriety of judicial reliance on a right that is not explicit in the Constitution. Of course, privacy primarily concerns the individual. It therefore relates to and overlaps with the concept of liberty. The most serious advocate H

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

24. Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, B procreation and child rearing. This catalogue approach to the question is obviously not as instructive as it does not give analytical picture of the distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying the concept has been the assertion that a C claimed right must be a fundamental right implicit in the concept of ordered liberty.

25. Rights and freedoms of citizens are set forth in the Constitution in order to guarantee that the individual, his personality, and those things stamped with his personality shall be free from official D interference except where a reasonable basis for intrusion exists. “Liberty against Government” a phrase coined by Professor Corwin expresses this idea forcefully. In this sense, many of the fundamental rights of citizens can be described as contributing to the right to privacy.

E 26. As Ely says: There is nothing to prevent one from using the word ‘privacy’ to mean the freedom to live one’s life without governmental interference. But the Court obviously does not so use the term. Nor could it, for such a right is at stake in every case.[See The F Wage of Crying Wolf: A Comment on Roe v. Wade, 82 Yale LJ 920, 932].”

45Copy pinpoint45. The reliance has also been placed on K.S. Puttaswamy and Anr. v. Union of India and Ors., 2017 (10) SCC 1, the decision relating to privacy in which this Court held: G “351. The Constitution of any country reflects the aspirations and goals of the people of that country voiced through the language of the few chosen individuals entrusted with the responsibility of framing its Constitution. Such aspirations and goals depend upon the history of that society. History invariably is a product of various H

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 617 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

forces emanating from religious, economic, and political events1. A The degree of refinement of the Constitution depends upon the wisdom of the people entrusted with the responsibility of framing the Constitution. The constitution is not merely a document signed by 284 Members of the Constituent Assembly. It is a politically sacred instrument created by men and women who risked lives and sacrificed their liberties to fight alien rulers and secured freedom for our people, not only of their generation but generations to follow. The Constitution cannot be seen as a document written in ink to replace one legal regime by another. It is a testament created for securing the goals professed in Preamble2. Part III of the Constitution is incorporated to ensure the achievement of the objects contained in the Preamble3. “We the People” of this country are the intended beneficiaries4 of the Constitution. It must be seen as a document written in the blood of innumerable martyrs of Jalianwala Bagh and the like. Man is not a creature of the State. Life and liberty are not granted by the Constitution. D Constitution only stipulates the limitations on the power of the State to interfere with our life and liberty. Law is essential to enjoy the fruits of liberty; it is not the source of liberty and emphatically not the exclusive source.”

1 E However, various forced which go into the making of history are dynamic. Those who are entrusted with the responsibility of the working of the Constitution must necessarily keep track of the dynamics of such forces. Evolution of science and growth of technology is another major factor in the modern world which is equally a factor to be kept in mind to successfully work the Constitution. 2 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225. F “91. … Our Preamble outlines the objectives of the whole Constitution. It expresses “what we had thought of dreamt for so long”.” (SCC p.323, para 91). 3 Kerala Education Bill, 1957, In re, AIR 1958 SC 956 “5. … To implement and fortify these supreme purposes set forth in the Preamble, Part III of our Constitution has provided for us certain fundamental rights.” (AIR p. 965, para 5). G 4 Bidi Supply Co. v. Union of India, AIR 1956 SC 479 “23. After all, for whose benefit was the Constitution enacted? What was the point of making all this bother about fundamental rights? I am clear that the Constitution is not for the exclusive benefit of governments and States; it is only for lawyers and politicians and officials and those highly placed. It also exists for the common man, for the poor H

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46Copy pinpoint46. It was argued that certain colleges have produced doctors of renowned fame, and they are an asset for India. There is no doubt about it that doctors of international fame have been produced by various institutions. They are an asset not only for India but also for the entire humanity. They are pioneers in various fields of medical science such as Oncology, Surgery, and other branches of medical science. But, when it comes to the eradication of the malpractices that have crept into the system, we have to take into consideration larger interest of the education countrywide. The NEET has been prescribed by the Legislature in the larger public interest that has to prevail. We find the provisions to be reasonable conditions of recognition/ affiliation are binding for the very existence of all such institution whether they are run by majority or minority failing which they cannot exists and impart education. The conditions are reasonable and cannot be said to be taking away any of the constitutional rights of minority institutions,they are reasonable, fair and intended to bring transparency in the professional education imparted by institutions. They are applicable for all institutions alike minorities are not placed on a disadvantageous platform.

47Copy pinpoint47. There is no doubt as to the concept of limited Government and least interference is welcomed, but in which field and to what extent balancing with the larger public and national interest is required. The individual autonomy, rights, and obligations are to be free from official interference except where the rational basis for intrusion exists. The Constitution provides a limitation on the power of the State to interfere with life, liberty, and rights, however, the concept of limited government cannot be extended to a level when it defeats the very national interest. The maladies with which professional education suffers in this country are writ large. The regulatory framework created by the MCI/ DCI is concomitant of conditions, affiliation and recognition, and providing central examination in the form of NEET cannot be said to be violative of the rights under Articles 19(1)(g) and 30. The regulatory framework is not restrictive, but caters to the effective enjoyment of the rights conferred under the aforesaid provisions. The provisions qualify the doctrine of and the humble, for those who have businesses at stake, for the “butcher, the baker and the candlestick maker”. It lays down for this land “a rule of law” as understood in the free democracies of the world. It constitutes India into a Sovereign Republic and guarantees in every page rights and freedom to the side by side and consistent with the overriding power of the State to act for the common good of all.” (AIR p.487, para 23)

H [For convenience, citations have been renumbered.]

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 619 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

proportionality considered in Modern Dental College and Research A Centre (supra). What has been held therein for State level examination holds good for NEET also.

48Copy pinpoint48. The prescription of NEET is definitely in order to improve the medical education, co-related to the improvement of public health, thus, it is a step-in furtherance of the duty of the State enshrined in the B Directive Principles of the State Policy contained in Article 47 of the Constitution of India. Similarly, Article 46 aims at promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes, and other weaker sections. By prescription of one equivalence examination of NEET, the interest of their merit is also equally protected and its aims of preventing various malpractices, which crept into system and prevent economic exploitation by selling seats with which maladythe professional medical education system suffered. Article 51A(j) deals with the duty to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. For that purpose, recognition of merit is necessary, and one has to be given a full opportunity in pursuit of his/her aim. The prescription of NEET is to provide equal opportunity and level launching platform to an individual to perform his duty as enshrined under Article 51A(j). Thus, we find that there is no violation of the aforesaid provisions as argued by appellants, rather action is in furtherance of the constitutional aims and directions to achieve intendment of Article 51A(j) and is in the national interest.

49Copy pinpoint49. In Secretary, Malankara Syrian Catholic College v. T. Jose and Ors., (2007) 1 SCC 386, Court considered T.M.A. Pai Foundation (supra), and held that all laws made by the State to regulate the administration of educational institutions and grant of aid will apply to minority educational institutions also, but dilution of right under Article 30 is not permissible. The right under Article 30 is not above the law. The regulations or conditions concerning the welfare of the students and teachers should be made applicable to provide a proper academic atmosphere. G

50Copy pinpoint50. In P.A. Inamdar (supra), the court opined that activities of education are charitable. The educational institutions, both of a non- minority and minority character, can be regulated and controlled so that they do not indulge in selling seats of learning to make money. They can be allowed to generate such funds as would be reasonably required to H

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A run the institute and for its further growth. In P.A. Inamdar (supra), this Court noted the difference between professional and non-professional educational institutions. It observed that professional educational institutions constitute a class by themselves and are distinguished from educational institutions imparting non-professional education. With respect to unaided minority educational institutions, Article 30 of the B Constitution 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, and the conditions of recognition are binding on such institutions. In P.A. Inamdar (supra), the Court opined that the admissions based on merit were in the national interest and strengthening the national welfare.

51Copy pinpoint51. In Ahmedabad St. Xavier’s College Society (supra), the Court held that minority institutions have a right to admit students of their choice subject to reasonable restriction for the academic qualification and the regulation, which will serve the interest of the students, can be imposed for ensuring efficiency and fairness. Education is vital for the nation; it develops the ethos of the nation. Regulations are necessary to see that there are no divisive or disintegrating forces in administration. It observed that it is not reasonable to claim that minority institutions will have complete autonomy. Some checks may be necessary and will serve the academic needs of the institution. A correlative duty of good administration is attached to the right to administer educational institution. It was also opined in Ahmedabad St. Xavier’s College Society (supra) in paragraph 19 quoted above that the State can prescribe regulations to ensure the excellence of the institution that does not militate against the right of the minority to administer the institutions. Such Regulations are not restrictions on the substance of the right, which is guaranteed; they secure the proper functioning of the institution. The institution cannot be allowed to fall below the standards of excellence under the guise of the exclusive right of the management. Minorities are as much part of the nation as the majority, and anything that impinges upon national interest must necessarily in its ultimate operation affect the interests of all. G

52Copy pinpoint52. It was further opined in Ahmedabad St. Xavier’s College Society (supra) in paragraph 94 quoted above that there are conditions of affiliation or recognition of an educational institution, it is implicit in the request for grant thereof that the educational institution would abide by the regulations which are made by the authority granting affiliation H

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 621 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

or recognition. When Government and MCI/DCI or concerned A Universities grant affiliation and recognition, the institutions are bound by the conditions prescribed for affiliation and recognition. It has also been observed that recognition or affiliation creates an interest in the university to ensure that the educational institution is maintained for the purpose intended and any Regulation which will subserve or advance B that purpose will be reasonable and no minority institution established and administered by a religious or linguistic minority can claim recognition or affiliation without submitting to those regulations.

53Copy pinpoint53. In view of the law laid down in T.M.A. Pai Foundation (supra), it is apparent that NEET/common entrance test is a devise to standardise and computing equivalence between different kinds of qualifications. It C does not interfere with the rights of the unaided minority institutions as it has been imposed in national interest considering the malpractices of granting illegal admission by virtually selling the seats in derogation to rights of meritorious students. The charitable activity of education became a saleable commodity and prerogative of wealthy persons and poor students were forced to get education funded from Banks making it difficult for them to come out of tentacular octave of interest. They are exploited in bud before they bloom into flower. The ill-reputation developed by MCI forced to change its entire structure. The national interest requires further improvement in the system to eradicate evils from the system. The situation is still grim and require to be dealt with firm hand and steely determination.

54Copy pinpoint54. In Dr.Preeti Srivastava and Anr. v. State of M.P. and Ors.(supra), it was opined that at super speciality level there cannot be any reservation or lowering of the minimum qualifying marks. In Modern Dental College and Research Centre (supra), considering various malpractices, it was observed that education is being used as exploitative financial device. Education is not a commodity to be purchased by money power and deserving one as per merit cannot be deprived of the right to obtain it. The State cannot remain a mute spectator, and it must step in to prevent exploitation. G

55Copy pinpoint55. Thus, it is apparent that the provisions in question which have been incorporated in the Act relating to Medical/Dental education, the Government, MCI and DCI cannot be said to be an invasion of the fundamental rights. The intendment is to ensure fairness in the selection, recognition of merit, and the interests of the students. In the national H

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

56Copy pinpoint56. In St. Stephen’s College v. University of Delhi (supra), it was held that there has to be balancing of interest of rights of minorities. It was observed that 50% of the annual admission has to be given to the members of communities other than the minority community on the basis of merit. Regulations that serve the interest in standards of education amongst the recognised institutions could validly be made. Such general patterns and standards are the need, and such regulation shall not have the effect of depriving the right of minorities to educate their children in their own institution.

57Copy pinpoint57. The learned counsel argued that it is open to some of the institutions to impose higher standards of merit. Firstly, conditions of affiliation are binding apart from that, we find that when it comes to national standards and the objects sought to be achieved by NEET, to conduct individual examinations by some institutions cannot be permitted. G The system is not yet out of clutches of unscrupulous devices and dubious means are adopted to defeat merit, the interest of education would further suffer and very purpose of centralised examination would be defeated. It is not possible to prescribe further examination over and above NEET that cannot be said to be workable, no exemption can be granted from NEET, considering the objective with which it has been introduced. We H

CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION 623 v. UNION OF INDIA AND OTHERS [ARUN MISHRA, J.]

find that the uniform Entrance Examination cannot be said to be A unreasonable regulatory framework. Considering the terms and conditionsfor affiliation and recognition for professional medical and such other professional courses are binding, and no relaxation can be permitted in the conditions.

58Copy pinpoint58. Thus, we are of the opinion that rights under Articles B 19(1)(g)and 30 read with Articles 25, 26 and 29(1) of the Constitution of India do not come in the way of securing transparency and recognition of merits in the matter of admissions. It is open to regulating the course of study, qualifications for ensuring educational standards. It is open to imposing reasonable restrictions in the national and public interest. The rights under Article 19(1)(g) are not absolute and are subject to reasonable restriction in the interest of the student’s community to promote merit, recognition of excellence, and to curb the malpractices. Uniform Entrance Test qualifies the test of proportionality and is reasonable. The same is intended to check several maladies which crept into medical education, to prevent capitation fee by admitting students which are lower in merit and to prevent exploitation, profiteering, and commercialisation of education. The institution has to be a capable vehicle of education. The minority institutions are equally bound to comply with the conditions imposed under the relevant Acts and Regulations to enjoy affiliation and recognition, which apply to all institutions.In case they have to impart education, they are bound to comply with the conditions which are equally applicable to all. The regulations are necessary, and they are not divisive or disintegrative. Such regulatory measures enable institutions to administer them efficiently. There is no right given to maladminister the education derogatory to the national interest. The quality of medical education is imperative to sub-serve the national interest, and the merit cannot be compromised. The Government has the right for providing regulatory measures that are in the national interest, more so in view of Article 19(6) of the Constitution of India.

59Copy pinpoint59. The rights of the religious or linguistic minorities under Article 30 are not in conflict with other parts of the Constitution. Balancing the rights is constitutional intendment in the national and more enormous public interest. Regulatory measures cannot be said to be exceeding the concept of limited governance. The regulatory measures in question are for the improvement of the public health and is a step, in furtherance of the directive principles enshrined in Articles 47 and 51(A)(j) and enable H

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A the individual by providing full opportunity in pursuance of his objective to excel in his pursuit. The rights to administer an institution under Article 30 of the Constitution are not above the law and other Constitutional provisions. Reasonable regulatory measures can be provided without violating such rights available under Article 30 of the Constitution to administer an institution. Professional educational institutions constitute B a class by themselves. Specific measures to make the administration of such institutions transparent can be imposed. The rights available under Article 30 are not violated by provisions carved out in Section 10D of the MCI Act and the Dentists Act and Regulations framed by MCI/ DCI.The regulatory measures are intended for the proper functioning of institutions and to ensure that the standard of education is maintained and does not fall low under the guise of an exclusive right of management to the extent of maladministration. The regulatory measures by prescribing NEET is to bring the education within the realm of charity which character it has lost. It intends to weed out evils from the system and various malpractices which decayed the system. The regulatory measures in no way interfere with the rights to administer the institution by the religious or linguistic minorities.

60Copy pinpoint60. Resultantly, we hold that there is no violation of the rights of the unaided/aided minority to administer institutions under Articles19(1)(g) and 30 read with Articles 25, 26 and 29(1)of the Constitution of India by prescribing the uniform examination of NEET for admissions in the graduate and postgraduate professional courses of medical as well as dental science. The provisions of the Act and regulation cannot be said to be ultra vires ortaking away the rights guaranteed under the Constitution of India under Article 30(1) read with Articles 19(1)(g), 14, F 25, 26 and 29(1). Accordingly, the transferred cases, appeal, and writ petitions are disposed of.

Ankit Gyan Matters disposed of.