IN THE SUPREME COURT OF
CIVIL APPEAL NO. 5041 OF
out of Special Leave Petition (C) No.9932 of 2004)
Inamdar & Ors.
of Maharashtra & Ors.
Appeal No. 5042 of 2005 (@ SLP(C) No.9935/2004); Civil
Appeal No. 5043 of 2005 (@ SLP(C) No. 9936/2004); W.P.
(C) No. 276/2004; W.P. (C) No. 330/2004; W.P. (C) No. 357/2004;
I.A. NOS. 26, 27, 30, 31 AND 33 IN W.P. (C) No.350/1993; Civil
Appeal No. 5035 of 2005 (@ SLP(C) No.11244/2004; W.P.(C)
No. 302/204; W.P. (C) No. 347/2004; W.P. (C) No. 349/2004;
W.P. (C) No. 350/2004; W.P. (C) No. 387/2004; W.P. (C) No.
423/2004; W.P. (C) No. 480/2004; W.P. (C) No. 19/2005; W.P.
(C) No. 261/2004; W.P. (C) No. 265/2004; W.P. (C) No. 380/2004;
W.P. (C) No. 358/2004; W.P. (C) No. 359/2004; W.P. (C) No.
360/2004; W.P. (C) No.361/2004; W.P. (C) No. 362/2004; W.P.
(C) No. 363/2004; C.A. No. 5257-5258/2004; C.A. No. 5259/2004;
C.A. No. 5260-5261/2004; C.A. No. 5262-5263/2004; C.A. No.
5996/2004; C.A. No. 5992/2004; C.A. No. 5997-5998/2004; C.A.
No. 7969-7971/2004; C.A. No. 7972/2004; C.A. No. 7973/2004;
C.A. No. 7974/2004; C.A. No. 7975/2004; W.P. (C) No. 371/2004;
W.P. (C) No. 368/2004; C.A. No. 7117-7119/2004; C.A. No. 7124-7126/2004;
CONMT.PET. (CIVIL) No. 561-563/2004 In C.A. No. 7117-7119/2004;
CONMT. PET. (CIVIL) No. 564-566/2004 in C.A. No. 7124-7126/2004;
W.P. (C) No. 251/2004; Civil Appeal No. 5036 of 2005
(@ SLP (C) No. 17464/2004); Civil Appeal No. 5037 of
2005 (@ SLP (C) No. 17549/2004); W.P. (C)
No. 318/2004; Civil Appeal No. 5038
of 2005 (@ SLP(C) No. 17930/2004; Civil Appeal No. 5039
of 2005 (@ SLP (C) No. 17931/2004); Civil Appeal No. 5040
of 2005 (@ SLP (C) No. 17326/2003); W.P. (C) No. 386/2004;
W.P. (C) No. 397/2004
J U D G M E N T
R.C. Lahoti, CJI
granted in all SLPs.
Coram of 11 judges, not a common feature in the Supreme Court
of India, sat to hear and decide T.M.A.Pai
Foundation v. State of
(2002) 8 SCC 481 (hereinafter
'Pai Foundation', for short).
It was expected that the authoritative pronouncement by a
Bench of such strength on the issues arising before it would
draw a final curtain on those controversies. The subsequent
events tell a different story. A learned academician
observes that the 11-Judge Bench
decision in Pai
Foundation is a
partial response to some
of the challenges posed by the impact of Liberalisation, Privatisation
and Globalisation (LPG), but the question whether that is
a satisfactory response, is indeed
debatable. It was
further pointed out that 'the decision raises more questions
than it has answered' (see : Annual Survey of Indian Law,
2002 at p.251, 254). The Survey goes on to observe
"the principles laid down by the majority in Pai Foundation are
so broadly formulated that they provide sufficient
leeway to subsequent courts in applying those
principles while the lack of clarity in the judgment allows
judicial creativity..." (ibid at p.256).
prophecy has come true and while the ink on the opinions in
Pai Foundation was
yet to dry, the High Courts were flooded with
writ petitions, calling for settlements
of several issues which were not yet resolved or which propped
on floor, post Pai Foundation.
A number of Special
Leave Petitions against interim orders passed by High Courts
and a few writ petitions came
to be filed directly
in this Court. A Constitution
Bench sat to interpret the 11-Judge Bench decision in
which it did vide its judgment dated 14.8.2003
(reported as - Islamic Academy
of Education & Anr. v. State
of Karnataka & Ors.,
(2003) 6 SCC 697; "Islamic
Academy" for short).
The 11 learned
Judges constituting the Bench
in Pai Foundation
delivered five opinions. The
majority opinion on behalf
of 6 Judges was delivered
by B.N. Kirpal, CJ. Khare, J (as His Lordship
then was) delivered a separate but concurring
opinion, supporting the majority. Quadri, J, Ruma
Pal, J and Variava, J (for himself and Bhan, J) delivered
three separate opinions partly dissenting from the majority.
Islamic Academy too
handed over two opinions. The majority opinion for 4 learned
Judges has been delivered by V.N. Khare, CJ. S.B. Sinha,
J, has delivered a separate opinion.
The events following Islamic Academy judgment
show that some of the main questions have remained unsettled
even after the exercise undertaken by the Constitution Bench
in Islamic Academy in
clarification of the 11-Judge Bench decision
in Pai Foundation. A
few of those unsettled questions as also some aspects of clarification
are before us calling for settlement by this Bench of 7 Judges
which we hopefully propose to do.
Pai Foundation and
Islamic Academy have
set out the factual backdrop of the issues leading to the
formulation of 11-Judge and 5-Judge Benches respectively.
For details thereof a reference may be made to the reported
decisions. A brief summary of the past events, highlighting
the issues as they have travelled in search of resolution
would be apposite.
used to be charity or philanthropy in good old times. Gradually
it became an 'occupation'. Some of the Judicial dicta go on
to hold it as an 'industry'. Whether, to receive education,
is a fundamental right or not has been debated for quite some
time. But it is settled that establishing and administering
of an educational institution for imparting knowledge to the
students is an occupation, protected by Article 19(l)(g) and
additionally by Article 26(a), if there is no element of profit
generation. As of now, imparting education has come
to be a means of livelihood for some professionals and a mission
in life for some altruists.
has since long been a matter of litigation. Law reports are
replete with rulings touching and centering around education
in its several aspects. Until Pai Foundation, there
were four oft quoted leading cases holding the field of education.
They were Unni Krishnan v. State of Andhra Pradesh
(1993) 1 SCC 645, St. Stephen's College
v. University of Delhi
(1992) 1 SCC 558, Ahmedabad St. Xavier's
College Society v. State of Gujarat
(1974) 1 SCC 717 and In Re: Kerala Education
Bill, 1957, (1958) SCR 995. For convenience
sake, these cases will be referred
to as Unni Krishnan, St. Stephen's,
St. Xavier's and Kerala Education Bill
respectively. All these cases amongst others
came up for the consideration of this Court in Pai
Correctness of the decision in St. Stephen's was doubted during
the course of hearing of Writ Petition No. 350 of 1993 filed
by Islamic Academy.
As St. Stephen's
is a pronouncement of 5-Judge
Bench, the matter was directed to be placed before 7-Judge Bench.
event of constitutional significance which had already happened,
was taken note of by the Constitution Bench. "Education" was
a State Subject in view of the following Entry 11 placed in
List II â”€ State List: -
"11. Education including
universities, subject to the provisions of entries 63, 64,
65 and 66 of List I and entry 25 of List III."
the Constitution (42nd Amendment) Act 1976, the above said
Entry was directed to be deleted and instead Entry 25 in List
III - Concurrent List, was directed to be suitably amended
so as to read as under: -
"25. Education, including technical
education, medical education and universities, subject to
the provisions of entries 63, 64, 65 and 66 of List I; vocational
and technical training of labour."
7-Judge Bench felt
that the matter called for hearing by a 11-Judge Bench. The
felt that it was not bound by the ratio propounded in Kerala Education Bill
and St. Xavier's and
was free to hear the case in wider perspective so as to discern
the true scope and interpretation of Article 30(1) of the
Constitution and make an authoritative pronouncement.
Questions and Five
Heads of Issues in
In Pai Foundation, 11
questions were framed for being answered. Detailed submissions
were made centering around the 11 questions. The Court dealt
with the questions by classifying the discussion under the
following five heads:
Is there a fundamental
right to set up
educational institutions and if so, under which provision?
Does Unni Krishnan require
In case of private institutions, can there be government regulations
and, if so, to what extent?
In order to determine the existence of a religious
or linguistic minority in relation to Article 30, what is
to be the unit - the State or the country as a whole?
To what extent can the rights of aided private minority institutions
to administer be regulated?
dealt with each of the above said heads, the Court through
the majority opinion expressed by B.N. Kirpal, CJ, recorded
answers to the 11 questions as they were framed and posed
for resolution. The questions and the answers as given by
the majority are set out hereunder:
is the meaning and content of the expression "minorities"
in Article 30 of the Constitution of India?
Linguistic and religious minorities are covered by the
expression "minority" under Article 30 of the Constitution.
Since reorganization of the States in India has been on linguistic
lines, therefore, for the purpose of determining the minority,
the unit will be the State and not the whole of India. Thus, religious
and linguistic minorities, who have been put on a par in Article
30, have to be considered Statewise.
What is meant by the expression "religion" in Article
30(1)? Can the followers of a sect or denomination of
a particular religion claim protection under Article 30(1)
on the basis that they constitute a minority in the State,
even though the followers of that religion are in majority
in that State?
This question need not be answered by this Bench;
it will be dealt with by a regular Bench.
Q.3 (a) What are the indicia for treating
an educational institution as a minority educational institution?
Would an institution be regarded as a minority educational
institution because it was established by a person(s) belonging
to a religious or linguistic minority or its being administered
by a person(s) belonging to a religious or linguistic minority?
This question need not be answered by this Bench; it will
be dealt with by a regular Bench.
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. 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 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 the qualifications
and minimum conditions of eligibility in the interest of academic
[emphasis by us]
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
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.
[emphasis by us]
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, so that the rights under
Article 30(1) are not substantially impaired and further the
citizens' rights under Article 29(2) are not infringed. What
would be a reasonable extent, would vary from the types of
institution, the courses of education for which admission
is being sought and other factors like educational needs.
The State Government concerned has to notify the percentage
of the non-minority students to be admitted in the light of
the above observations. Observance of inter se merit amongst
the applicants belonging to the minority group could be ensured.
In the case of aided professional institutions, it can also
be stipulated that passing of the common entrance test held
by the State agency is necessary to seek admission.
As regards non-minority students who are eligible to seek
admission for the remaining seats, admission should normally
be on the basis of the common entrance test held by the State
agency followed by counselling wherever it exists.
Q.5(a) Whether the minorities'
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 mal-administration. 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.
Q.5(b) Whether the minority
institutions' right of admission of students and to lay down
procedure and method of admission, if any, would be affected
in any way by the receipt of State aid?
A. While giving aid to
professional institutions, it would be permissible for the
authority giving aid to prescribe bye - 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 qua non-minority students.
The merit may be determined either through a common entrance
test conducted by the university or the Government concerned
followed by counselling, or on the basis of an entrance test
conducted by the 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.
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 and regulation
of fees, etc. would interfere with the right of administration
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 be minimal and the conditions
of recognition as well as the 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 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.
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.
to be charged by unaided institutions cannot be regulated
but no institution should charge capitation fee.
Where can a minority institution be operationally located?
Where a religious or linguistic minority in State A establishes
an educational institution in the said State, can such educational
institution grant preferential admission/reservations and
other benefits to members of the religious/linguistic group
from other States where they are non-minorities?
A. This question need
not be answered by this Bench; it will be dealt with by a
Q. 6. (b)
Whether it would be correct to say that only the members
of that minority residing in State A will be treated as the
members of the minority vis-Ã -vis such institution?
A. This question need
not be answered by this Bench; it will be dealt with by a
Q.7. Whether the member
of a linguistic non-minority in one State can establish a
trust/society in another State and claim minority status in
A. This question need
not be answered by this Bench; it will be dealt with by a
Q.8. Whether the ratio laid
down by this Court in St. Stephen's case (St.
Stephen's College v. University of Delhi,
(1992) 1 SCC 558) is correct? If no, what order?
A. The basic ratio laid
down by this Court in St. Stephen's College case (supra)
is correct, as indicated in this judgment. However, rigid
percentage cannot be stipulated. It has to be left to
authorities to prescribe a reasonable percentage having regard
to the type of institution, population and educational needs
9. Whether the decision of this Court in Unni Krishnan, J.P.
v. State of A.P.,
(1993) 1 SCC 645 (except where it holds that primary
education is a fundamental right) and the scheme framed thereunder
require reconsideration/modification and if yes, what?
scheme framed by this Court in Unni Krishnan case
(supra) and the direction to impose the same, except
where it holds that primary education is a fundamental right,
is unconstitutional. However, the principle that there should
not be capitation fee or "profiteering is correct. Reasonable
surplus to meet cost of expansion and augmentation of facilities
does not, however, amount to profiteering.
Whether the non-minorities have the right to establish and
administer educational institution under Articles 21 and 29(1)
read with Articles 14 and 15(1), in the same manner and to
the same extent as minority institutions?
Q. 11. What is the meaning
of the expressions "education" and "educational institutions"
in various provisions of the Constitution? Is the right to
establish and administer educational institutions guaranteed
under the Constitution?
A. The expression "education"
in the articles of the Constitution means and includes education
at all levels from the primary school
level up to the postgraduate level. It
includes professional education. The expression "educational
institutions" means institutions that impart education, where
"education" is as understood hereinabove.
The right to establish and administer educational institutions
is guaranteed under the Constitution to all citizens under
Articles 19(l)(g) and 26, and to minorities specifically under
All citizens have a right to establish and administer educational
institutions under Articles 19(l)(g) and 26, but this right
is subject to the provisions of Articles 19(6) and 26(a).
However, minority institutions will have a right to admit
students belonging to the minority group, in the manner as
discussed in this judgment."
The majority led by Kirpal, CJ, in Pai Foundation did
say that the expression "minorities" in Article 30 of the
Constitution of India, whether linguistic or religious, has
to be determined by treating the State and not the whole of
India as unit. Questions
such as: (i) what is religion, (ii) what is the indicia for
determining if an educational institution is a minority institution,
(iii) whether a minority institution can operate extra-territorially
extending its activities into such states where the minority
establishing and administering the institution does not enjoy
minority status, (iv) the content and contour of minority
by reference to territories, were not answered in Pai Foundation and
were left to be determined by the regular Benches in individual
cases to be heard after the decision in Pai Foundation. We
also do not propose to involve ourselves by dealing with these
questions except to the extent it may become necessary to
do so for the purpose of answering the questions posed before
Pai Foundation explained
in Islamic Academy
Pai Foundation Judgment
was delivered on 31.10.2002. The Union of India, various State
Governments and the Educational Institutions, each understood
the majority judgment in its own way. The State Governments
embarked upon enacting laws and framing the regulations, governing
the educational institutions in consonance with their own
understanding of Pai Foundation. This
led to litigation in several Courts. Interim orders passed
therein by High Courts came to be challenged before this Court.
At the hearing, again the parties through their learned counsel
tried to interpret the majority decision in Pai Foundation in
different ways as it suited them. The parties agreed that
there were certain anomalies and doubts, calling for clarification.
The persons seeking such clarifications were unaided professional
educational institutions, both minority and non-minority.
The Court formulated four questions as arising for consideration
in view of the rival submissions made before the Court in
whether the educational institutions are entitled to fix their
own fee structure;
whether minority and non-minority educational institutions
stand on the same footing and have the same rights;
whether private unaided professional colleges are entitled
to fill in their seats, to the extent of 100%, and if not,
to what extent; and
whether private unaided professional colleges are entitled
to admit students by evolving their own method
We could attempt at formulating the gist of the answers given
by the Constitution Bench of the Court as under:
Each minority institution is entitled to have its own fee
structure subject to the condition that there can be no profiteering
and capitation fees cannot be charged. A provision for
reasonable surplus can be made to enable future expansion.
The relevant factors which would go into determining the reasonability
of a fee structure, in the opinion of majority, are:
the infrastructure and facilities available, (ii) the investments
made, (iii) salaries paid to the teachers and staff, (iv)
future plans for expansion and betterment of the institution
S.B. Sinha, J, defined what is 'capitation' and 'profiteering'
and also said that reasonable surplus should ordinarily vary
from 6 per cent to 15 per cent for utilization in expansion
of the system and development of education.
In the opinion of the majority, minority institutions stand
on a better footing than non-minority institutions.
Minority educational institutions have a guarantee or assurance
to establish and administer educational institutions of their
choice. State Legislation, primary
or delegated, cannot favour non- minority
institution over minority institution.
The difference arises because of Article 30, the protection
whereunder is available to minority educational institutions
only. The majority opinion called it a "special
right" given under Article 30.
In the opinion of S.B. Sinha, J, minority educational institutions
do not have a higher right in terms of Article 30(1); the
rights of minorities and non-minorities are equal. What is
conferred by Article 30(1) of the Constitution is "certain
additional protection" with the object of bringing the minorities
on the same platform as that of non-minorities, so that the
minorities are protected by establishing and administering
educational institutions for the benefit of their own community,
whether based on religion or language.
It is clear that as between minority and non-minority educational
institutions, the distinction made by Article 30(1) in the
fundamental rights conferred by Article 19(l)(g) has been
termed by the majority as "special right" while in the opinion
of S.B.Sinha, J, it is not a right but an "additional protection".
What difference it makes, we shall see a little later.
Questions 3 and 4 have been taken up for consideration together.
A reading of the opinion recorded in Islamic Academy shows
that paras 58, 59 and 68 of Pai Foundation were
considered and sought to be explained. It was not very
clear as to what types of institutions were being dealt with
in the above referred to paragraphs by the majority in Pai Foundation. Certainly,
distinction was being sought to be drawn between professional
colleges and other educational institutions (both minority
and unaided). Reference is also found to have been made
to minority and non-minority institutions. At some places,
observations have been made regarding institutions divided
into groups only by reference to aid, that is whether they
are aided or unaided educational institutions without regard
to the fact whether they were minority or non-
institutions. It appears that there are a few passages/sentences
wherein it is not clear which type of institutions the majority
opinion in Pai Foundation was
referring to thereat. However, the majority opinion in Islamic Academy has
by explaining Pai Foundation held
In professional institutions, as they are unaided, there will
be full autonomy in their administration, but the principle
of merit cannot be sacrificed, as excellence in profession
is in national interest.
Without interfering with the autonomy of unaided institutions,
the object of merit based admissions can be secured by insisting
on it as a condition to the grant of recognition and subject
to the recognition of merit, the management can be given certain
discretion in admitting students.
The management can have quota for admitting students at its
discretion but subject to satisfying the test of merit based
admissions, which can be achieved by allowing management to
pick up students of their own choice from out of those who
have passed the common entrance test conducted by a centralized
mechanism. Such common entrance test can
be conducted by the State or by an association of
similarly placed institutions in the State.
The State can provide for reservation in favour of financially
or socially backward sections of the society.
The prescription for percentage of seats, that is allotment
of different quotas such as management seats, State's quota,
appropriated by the State for allotment to reserved categories
etc., has to be done by the State in accordance with the "local
needs" and the interests/needs of that minority
community in the
State, both deserving paramount
consideration. The exact
concept of "local needs" is not clarified.
The plea that each minority unaided educational institution
can hold its own admission test was expressly overruled.
The principal consideration which prevailed with the majority
in Islamic Academy for
holding in favour of common entrance test was to avoid great
hardship and incurring of huge cost by the hapless students
in appearing for individual tests of various colleges.
majority opinion carved out an exception in favour of those
minority educational professional institutions which were
established and were having their own admission procedure
for at least 25 years from the requirement of joining any
common entrance test, and such institutions were permitted
to have their own admission procedure. The State Governments
were directed to appoint a permanent Committee to ensure that
the tests conducted by the association of colleges is fair
Sinha, J, in his separate opinion, agreed with the majority
that the merit and merit alone should be the basis of selection
for the candidates. He also agreed that one single standard
for all the institutions was necessary to achieve the object
of selection being made on merit by maintaining uniformity
of standard, which could not be left to any individual institution
in the matter of professional courses of study. However, the
merit criterion in the opinion of Sinha, J, was required to
be associated with the level of education. To quote his words:
"the merit criterion would have to be judged like a pyramid.
At the kindergarten, primary, secondary levels, minorities
may have 100% quota. At this level the merit may not have
much relevance at all but at the level of higher education
and in particular, professional education and postgraduate-level
education, merit indisputably should be a relevant criterion.
At the postgraduation level, where there may be a few seats,
the minority institutions may not have much say in the matter.
Services of doctors, engineers and other professionals coming
out from the institutions of professional excellence must
be made available to the entire country and not to any particular
class or group of people. All citizens including the minorities
have also a fundamental duty in this behalf."
we part with the task of summing up the answers given to the
four questions in Islamic Academy,
we would like to make a few observations of ours in
this regard. First, the majority opinion spread over 30 printed
pages, and the minority opinion spread over 60 printed pages,
both though illuminating and instructive, have nonetheless
not summed up or pointedly answered the questions. We have
endeavoured to cull out and summarize the answers, noted above,
as best and as briefly as we could from the two opinions.
We would, therefore, hasten to add that in order to fully
appreciate the ratio of the two opinions, they have to be
read in detail and our attempt at finding out and placing
in a few chosen words the ratio decidendi of the
two separately recorded opinions, is subject to this limitation.
However, we shall make a reference to relevant passages from
the two opinions as and when it becomes necessary. A point
of significance which we would like to briefly note here itself,
a detailed discussion being relegated to a later part of this
judgment, is that the opinion of S.B. Sinha, J, has examined
in detail, the scope of protection conferred on minority institutions
by reference to their right to seek recognition or affiliation,
an aspect of wider significance which does not seem to have
received consideration with that emphasis either in Pai Foundation
or in the majority opinion in Islamic Academy.
We shall revert to this aspect a little later.
A Few Preliminary observations
we embark upon dealing with the issues posed before us for
resolution, we would like to make a few preliminary observations
as a preface to our judgment inasmuch as that would outline
the scope of the controversy with which we are actually dealing
here. At the very outset, we may state that our task is not
to pronounce our own independent opinion on the several issues
which arose for consideration in Pai Foundation. Even
if we are inclined to disagree with any of the findings amounting
to declaration of law by the majority in Pai Foundation, we
cannot; that being a pronouncement by 11-Judge Bench, we are
bound by it. We cannot express a dissent or disagreement howsoever
we may be inclined to do so on any of the issues. The real
task before us is to cull out the ratio decidendi of Pai Foundation and
to examine if the explanation or clarification given in Islamic Academy runs
counter to Pai Foundation and
if so, to what extent. If we find anything said or held in
Islamic Academy in
conflict with Pai Foundation, we
shall say so as being a departure from the law laid down by
Pai Foundation and
on the principle of binding efficacy of precedents, over-rule
to that extent the opinion of the Constitution Bench in Islamic Academy.
It is pertinent to note, vide paras 2, 3 and 35 of Islamic Academy, that most of the
petitioners/applicants therein were unaided professional educational
institutions (both minority and non-minority). The purpose
of constituting the Constitution Bench, as noted at the end
of para 1, was "so that doubts/anomalies, if any, could be
clarified." Having answered the questions, the Constitution
Bench treated all interlocutory applications as regards interim
matters as disposed of (see para 23). All the main matters
(writ petitions, transfer petitions and special leave petitions)
were directed to be placed before the regular Benches for
disposal on merits.
Islamic Academy in addition to giving clarifications
on Interlocutory Applications, directed setting up of two
committees in each State: one committee "to give effect to
the judgment in Pai Foundation" and
to approve the fee structure or to propose some other fee
which can be charged by minority institutions (vide para 7),
and the other committee - to oversee the tests to be conducted
by the association of institutions (vide para 19).
Since the direction made in Islamic Academy for
appointment of the Committees has been vehemently assailed
during the course of hearing before us, we would extract from
the judgment in Islamic Academy the
following two passages wherein, in the words of Khare, CJ,
the purpose and the constitution of the Committees, the powers
conferred on and the functions enjoined upon them are given:
direct that in order to give effect to the judgment in T.M.A. Pai case
the respective State Governments/concerned authority
shall set up, in each State, a committee headed by a retired
High Court Judge who shall be nominated by the Chief Justice
of that State. The other member, who shall be nominated by
the Judge, should be a Chartered Accountant of repute. A representative
of the Medical Council of India (in short "MCI") or the All
India Council for Technical Education (in short "AICTE"),
depending on the type of institution, shall also be a member.
The Secretary of the State Government in charge of Medical
Education or Technical Education, as the case may be, shall
be a member and Secretary of the Committee. The Committee
should be free to nominate/co-opt another independent person
of repute, so that the total number of members of the Committee
shall not exceed five. Each educational institute must place
before this Committee, well in advance of the academic year,
its proposed fee structure. Along with the proposed fee structure
all relevant documents and books of accounts must also be
produced before the Committee for their scrutiny. The Committee
shall then decide whether the fees proposed by that institute
are justified and are not profiteering or charging capitation
fee. The Committee will be at liberty to approve the fee structure
or to propose some other fee which can be charged by the institute.
The fee fixed by the Committee shall be binding for a period
of three years, at the end of which period the institute would
be at liberty to apply for revision. Once fees are fixed by
the Committee, the institute cannot charge either directly
or indirectly any other amount over and above the amount fixed
as fees. If any other amount is charged, under any other
head or guise e.g. donations, the same would amount to charging
of capitation fee. The Governments/appropriate authorities
should consider framing appropriate regulations, if not already
framed, whereunder if it is found that an institution is charging
capitation fees or profiteering that institution can be appropriately
penalised and- also face the prospect of losing its recognition/affiliation,
now direct that the respective State Governments do appoint
a permanent Committee which will ensure that the tests conducted
by the association of colleges is fair and transparent. For
each State a separate Committee shall be formed. The
Committee would be headed by a retired Judge of the High Court.
The Judge is to be nominated by the Chief Justice of that
State. The other member, to be nominated by the Judge, would
be a doctor or an engineer of eminence (depending on whether
the institution is medical or engineering/technical). The
Secretary of the State in charge of Medical or Technical Education,
as the case may be, shall also be a member and act as the
Secretary of the Committee. The Committee will be free
to nominate/co-opt an independent person of repute in the
field of education as well as one of the Vice-Chancellors
of the University in that State so that the total number of
persons on the Committee do not exceed five. The Committee
shall have powers to oversee the tests to be conducted by
the association. This would include the power to call for
the proposed question paper(s), to know the names of the paper-setters
and examiners and to check the method adopted to ensure papers
are not leaked. The Committee shall supervise and ensure that
the test is conducted in a fair and transparent manner. The
Committee shall have the powers to permit an institution,
which has been established and which has been permitted to
adopt its own admission procedure for the last, at least,
25 years, to adopt its own admission procedure and if the
Committee feels that the needs of such an institute are genuine,
to admit, students of their community, in excess of the quota
allotted to them by the State Government. Before exempting
any institute or varying in percentage of quota fixed by the
State, the State Government must be heard before the Committee.
It is clarified that different percentage of quota for students
to be admitted by the management in each minority or non-minority
unaided professional college(s) shall be separately fixed
on the basis of their need by the respective State Governments
and in case of any dispute as regards fixation of percentage
of quota, it will be open to the management to approach the
Committee. It is also clarified that no institute, which has
not been established and which has not followed its own admission
procedure for the last, at least, 25 years, shall be permitted
to apply for or be granted exemption from admitting students
in the manner set out hereinabove. (para 19)"
J. has not specifically spoken of the Committees. Nevertheless
he made a reference to these Committees in his opinion and
thus impliedly recorded his concurrence with the constitution
of these Committees.
para 20, the Constitution Bench has made it clear that the
setting up of two sets of Committees in the States has been
directed in exercise of the power conferred on this Court
by Article 142 of the Constitution and such Committees "shall
remain in force till appropriate legislation is enacted by
Parliament". Although the term 'permanent' has been used,
but it appears to us that these Committees are intended to
be transitory in nature.
for constituting a Bench of a Coram higher than Constitution
matters have been directed to be placed for hearing before
a Bench of seven Judges under Orders of the Chief Justice
of India pursuant to Order dated July 15, 2004 in P.A. Inamdar and Ors.
v. State of Maharashtra
and Ors., (2004) 8 SCC 139 and Order dated July
29, 2004 in Pushpapiri Medical Society
v. State of Kerala and Ors.,
(2004) 8 SCC 135. The aggrieved persons before us
are again classifiable in one class, that is, unaided minority
and non-minority institutions imparting professional education.
The issues arising for decision before us are
the fixation of 'quota' of admissions/ students
in respect of unaided professional institutions;
the holding of examinations for admissions to such colleges,
that is, who will hold the entrance tests; and
the fee structure.
The questions spelled
out by Orders of Reference
the light of the two orders of reference, referred to hereinabove,
we propose to confine our discussion to the questions set
out hereunder which, according to us, arise for decision:
To what extent the State can regulate the admissions made
by unaided (minority or non-minority) educational institutions?
Can the State enforce its policy of reservation and/or appropriate
to itself any quota in admissions to such institutions?
Whether unaided (minority and non-minority) educational institutions
are free to devise their own admission procedure or whether
direction made in Islamic Academy for
compulsorily holding entrance test by the State or association
of institutions and to choose therefrom the students
entitled to admission in such institutions, can be sustained
in light of the law laid down in Pai Foundation?
Whether Islamic Academy could
have issued guidelines in the matter of regulating the fee
payable by the students to the educational institutions?
Can the admission procedure and fee structure be regulated
or taken over by the Committees ordered to be constituted
by Islamic Academy?
issues posed before us are referable to headings 3 and 5 out
of 'five headings' formulated by Kirpal, CJ in Pai Foundation. So also
speaking by reference to the 11 questions framed in Pai Foundation, the
questions and answers relevant for us would be referable to
question Nos. 3 (b), 4, 5 (a) (b) (c) and (9).
number of learned counsel addressed the Court at the time
of hearing raising very many issues and canvassing different
view-points of law referabl