TMI Blog2003 (8) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... s under: "3. The hearing of these cases has had a chequered history. Writ Petition No. 350 of 1993 filed by the Islamic Academy of Education and connected petitions were placed before a Bench of five Judges. As the Bench was prima facie of the opinion that Article 30 did not clothe a minority educational institution with the power to adopt its own method of selection and the correctness of the decision of this Court in St Stephens College v. University of Delhi was doubted, it was directed that the questions that arose should be authoritatively answered by a larger Bench. These cases were then placed before a bench of seven Judges. The questions framed were recast and on 6-2-1997, the Court directed that the matter be placed before a Bench of at least eleven Judges, as it was felt that in view of the Forty-second Amendment to the Constitution, whereby "education" had been included in Entry 25 of List III of Seventh Schedule, the question of who would be regarded as a "minority" was required to be considered because the earlier case-law related to the pre-amendment era, when education was only in the State List..............." After the Judgment was delivered, on 31st October 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impermissible. It is further submitted that the private, unaided professional educational institutions, had been given complete autonomy not only as regards the admission of students but also as regards the termination of their own fee structure. If was submitted that these institutions could fix their own fee structure, which could include a reasonable revenue surplus for purposes of development of education and expansion of the institution, and that so long as there was no profiteering or charging of capitation fees, there could be no interference by the Government. It was submitted that the right to admit students is an essential facet of the right to administer, and so long as admission to the unaided educational institutions is on a fair and transparent basis and on the basis of merit, government cannot interfere. It was submitted that these institutions are entitled to fill up all their seats by adopting/evolving a rational and transparent method of admission which ensures that merit is adequately taken care of. It was submitted that in any event the institutions should be given a choice and be allowed to admit students on basis of the ICSC or SSC or other such examination. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ach college and may find it difficult, if not impossible to travel from one college to another, to appear in all the tests. It was submitted that unless it was ensured that colleges admit students strictly on the basis of merit at a common entrance test, it would be impossible to ensure that capitation fees were not charged and that there was no profiteering. It was pointed out that some colleges do not even issue admission forms unless and until the student agrees to pay a hefty sum. It was submitted that the majority Judgment clarified that Article 30 had been enacted not for the purposes of giving any special right or privileges to the minority educational institutions, but to ensure that the minorities had equal rights with the majority. It was submitted that minority educational institutions cannot claim any higher or better rights than those enjoyed by the non-minority educational institutions. 212. Both sides relied upon various passages from the majority judgment in support of the respective submissions. These passages are reproduced hereinafter. In view of the rival submissions the following questions arise for consideration: 1) whether the educational institutions a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 total number of members of the Committee shall not exceed 5. 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad the same rights reliance was placed upon paragraphs 138 and 139 of the Judgment. These read as follows; "138. As we look at it, Article 30(1) is a sort of guarantee or assurance to the linguistic and religious minority institutions of their right to establish and administer educational institutions of their choice. Secularism and equality being two of the basic features of the Constitution, Article 30(1) ensures protection to the linguistic and religious minorities; thereby preserving the secularism of the country. Furthermore, the principles of equality must necessarily apply to the enjoyment of such rights. No law can be framed that will discriminate against such minorities with regard so the establishment and administration of educational institutions vis-a-vis other educational institutions. Any law or rule or regulation that would put the educational institutions run by the minorities at a disadvantage when compared to the institutions run by the others will have to be struck down. At the same time, there also cannot be any reverse discrimination. It was observed in St Xaviers College case, at page 192, that "the whole object of conferring the right on minorities under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l institutions may become bound by such an enactment. However, the right given under Article 30 to minorities cannot be done away with and the minorities will still have a fundamental right to establish and administer educational institutions of their choice. Similarly even though the government may have a right to take over management of a non minority educational institution the management of a minority educational institution cannot be taken over because of the protection given under Article 30. Of course we must not be understood to mean that even in national interest a minority institute cannot be closed down. Further minority educational institutions have preferential right to admit students of their own community/language. No such rights exist so far as non minority educational institutions are concerned. Questions Nos. 3 and 4 216. Questions 3 and 4 pertain to private unaided professional colleges. Thus ail observations in answer to questions 3 and 4 are therefore confined to such educational institutions. 217. In order to answer the third arid fourth questions it is necessary to see the manner in which the majority judgment is framed and to consider certain paragra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to a professional institution and to become a competent professional, it is necessary that meritorious candidates are not unfairly treated or put at a disadvantage by preferences shown to less meritorious but more influential applicants. Excellence in professional education would require that greater emphasis be laid on the merit of a student seeking admission. Appropriate regulations for this purpose may be made keeping in view the other observations made in this judgment in the context of admissions to unaided institutions." "59. Merit is usually determined for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school leaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by government agencies." Based on the above paragraphs it had been submitted, on behalf of the Union of India various State Governments and students that the majority Judgment makes a clear distinction between professional educational institutions (both minority and non minority) and other educational institutions i.e. school ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sional colleges. 227. Undoubtedly the majority judgment makes a distinction between private unaided professional colleges and other educational institutions i.e. schools and undergraduate colleges. The subheading "Private unaided professional colleges" includes both minority as well as non minority professional colleges. This is also clear from a reading of paragraph 68. It appears to us that this distinction has been made (between private unaided professional colleges and other educational institutions) as the Judgment recognises that it is in national interest to have good and efficient professionals. The Judgment provides that national interest would prevail, even over minority rights. It is for this reason that in professional colleges, both minority and non-minority, merit has been made the criteria for admission. However a proper reading, of paragraph 68, indicates that a further distinction has been made between minority and non minority professional colleges. It is provided that in cases of non minority professional colleges "a certain percentage of seats" can be reserved for admission by the management. The rest have to be filled up on bases of counseling by State agen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Proost v. State of Bihar ; State of Kerala v. Very Rev Mother Provincial; Ahmedabad. St Xaviers College Society v. State of Gujarat . All these cases have recognised and upheld the rights of minorities under Article 30. These cases have held that in the guise of regulations, rights under Article 30 cannot be abrogated. It has been held, even in respect of aided minority institutions that they must have full autonomy in administration of that institution. It has been held that the right to administer includes the right to admit students of their own community/language. Thus an unaided minority professional college cannot be in a worse position than an aided minority professional college. It is for this reason that paragraph 68 provides that a different percentage can be fixed for unaided minority professional colleges. The expression "different percentage for minority professional institutions" carries different meaning than the expression "certain percentage for unaided professional colleges," In fixing percentage for unaided minority professional colleges the State must keep in mind, apart from local needs, the interest/need of that community in the State. The need of that commun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a practical approach keeping in mind the need for a merit based selection. Paragraph 68 provides that admission by the management can be by a common entrance test held by "itself or by State/University". The words "common entrance test" clearly Indicate that each institute cannot hold a separate test. We thus hold that the management could select students, of their quota, either on the basis of the common entrance tests conduced by the State or on the basis of a common entrance test to be conducted by an association of all colleges of a particular type in that State e.g. medical, engineering or technical etc. The common entrance test, held by the association, must be for admission to all colleges of that type in the State. The option of choosing, between either of these tests, must be exercised before issuing of prospectus and after intimation to the concerned authority and the Committee set up hereinafter. If any professional college chooses not to admit from the common entrance test conducted by the association then that college must necessarily admit from the common entrance test conducted by the State. After holding the common entrance test and declaration of results the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for merit based selection at the time of granting recognition/affiliation. It was also submitted that once recognition/affiliation is granted to unaided professional colleges, such a stipulation cannot be provided subsequently. We are unable to accept this submission. Such a provision can be made at the time of granting recognition/affiliation as well as subsequently after the grant of such recognition/affiliation. 233. We now direct that the respective State Government do appoint a permanent Committee which will ensure that the tests conducted by the association of colleges to 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 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 Secretary of the Committee. The Committee will be free to nominate/co-opt an independent person of repute in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n without going into the issues involved in the various petitions/application?), we direct that the seats be filled up by the institution and the State Governments in the ratio 50:50. However, if by any interim order, this Court has permitted any institution to fill up a higher percentage of seats and the seats have been filled up accordingly, the same shall not be disturbed. It is made clear that due to the lime constraint this arrangement has been made, without deciding the contentious issue involved in various pending cases. 236. With these clarifications we now direct that all the matters be placed before the regular benches for disposal on merits. 237. All Interlocutory applications as regard interim matters stand disposed of. ============================================================================================ ==================================== S.B. Sinha, J. INTRODUCTORY REMARKS : 1. Imparting of education is a State function. The State, however, having regard to its financial and other constraints is not always in a position to perform its duties. The function of imparting education has been, to a large extent, taken over by the citizens themselves. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the said Scheme. 5. The Islamic Academy of Education filed a writ petition in the year 1993 questioning the validity thereof. The said writ petition along with connected matters were placed before a Bench of five Judges, which was prima facie of the view that Article 30 of the Constitution of India did not clothe minority educational institutions with the power to adopt its own method of selecting students. 6. This Court in T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors. noticed the same stating : "The hearing of these cases has had a chequered history. Writ Petition No. 350 of 1993 filed by the Islamic Academy of Education and connected petitions were placed before a Bench of 5 Judges. As the Bench was prima facie of the opinion that Article 30 did not clothe a minority educational institution with the power to adopt its own method of selection and the correctness of the decision of this Court in St. Stephen s College v. University of Delhi was doubted, it was directed that the questions that arose should be authoritatively answered by a larger Bench. These cases were then placed before a Bench of 7 Judges. The questions framed were recast and on 6th Febru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich were disposed of by the 11-Judge Bench of this Court. Some institutions as also the State of Kerala had also filed Special Leave Petitions against the interim orders passed by the High Courts. Some writ petitions under Article 32 of the Constitution of India have also been filed. Keeping in view the importance of the question, this Court issued notices to all, the State Governments: 11. In the Special Leave Petitions and the Writ Petitions several other questions have also been raised but as at present advised this Bench intends to confine itself to the interpretation of judgment of this Court in T.M.A. Pai Foundation (supra) leaving other questions open for consideration by the appropriate benches. 12. In these matters this Court is not at all concerned with the rights of the aided minority and non-minority institutions and restrictions imposed by the States upon them but we are concerned only with the rights and obligations of private unaided institutions run by the minorities and nonminorities. SUBMISSIONS MADE ON BEHALF OF WRIT PETITIONERS - APPLICANTS: 13. It was urged that while interpreting the judgment, this Court should bear in mind the salient aspects of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch a right of control over the aided institutions inheres for the purpose of oversight and restraints so as to (a) ensure proper utilization of funds (Para 143) (b) permit the Government to, have some seats to the extent of its reservation policy (Paras 42-441). (v) Although the aided, institutions are subject to Clause (2) of Article 29 and Clause (3) of Article 28 of the Constitution, but the unaided minority institutions being not so subject would not be bound by the restraints emanating therefrom so long they exercise their right to admit and select students in a transparent and non-arbitrary manner; III ON ADMISSION OF STUDENTS BY UNAIDED INSTITUTIONS (i) Unaided institutions have an unbridled right on admission of students, comprising of devising a test for selecting students of their choice (Para 36, 40-41, 50). Such a right emanates from the principle that every private and public owner of an institution has the power to admit qualified students of their own choice (Para 42-44). (ii) As such a right also emanates with a view to maintain the atmosphere and traditions of the private educational institutions, the general principles for unaided institutions would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State will have to be taken into consideration. (viii) In any event, reservation for weaker sections cannot be greater than 50% of the total in any batch after taking into account the reservation for SC, ST and OBC. (ix) The unaided institutions cannot be subject to onerous financial impositions nor can they be asked to perform the functions of the State. (Para 61) (x) In any event, the quota policy cannot be imposed on unaided institutions to the extent of laying down standards of a reasonable nature that do not cut down its operational autonomy and financial independence. (Paras 36, 40, 43, 53, 59, 65). V. FEE FIXATION FOR UNAIDED INSTITUTIONS 15. As unaided institutions are to be given maximum autonomy in the matter of fixation of fee, there cannot be : (a) a rigid fee structure (para 54) (b) Such fees are to be fixed by the unaided institutions (Para 56, 57). (c) The only impediment in this behalf is that no capitation fee can be charged nor the institutions can take recourse to profiteering since education is charitable in nature Therefore a reasonable revenue surplus for the purpose of development of education and expansion of education would be permissible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) The plea of the minority institutions to the effect that their right to admit or reject students is absolute would not be in consonance with the direction issued in para 68 which provides for (a) a system to provide merit based selection while granting sufficient discretion to the management (b) As certain percentage of seats have to be reserved for the management, the rest can be filled up on the basis of counseling by the State agencies which would take care of poorer and backward sections of the society. The prescription of the percentage for the said purpose must be left with the State (Para 68). (vi) Professional institutions must apply a more rigorous test, which would be subject to greater regulation by the State or by the University. (Answer to Question No. 4). (vii) As the State while granting essentiality certificate is to consider the local needs and further guarantee smooth functioning of such institutions failing which the State has to adjust the students of the institutions to their own institutions, it has a great stake in the matter. Choice and selection of students in professional courses are directly linked with maintaining the standards of medical educa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving regard to the public interest and national interest of the country. Regulations can also be framed to prevent maladministration as also for laying down the standard of education, teaching, maintenance of discipline, public order, health, morality, etc. UNNI KRISHNANAN, J.P. 19. This Court in Unni Krishnan (supra) while framing the scheme directed : (a) that a professional college should be established and/or administered only by a Society registered under the Societies Registration Act, 1860, or the corresponding Act of a State, or by a Public Trust registered under the Trusts Act, or under the Wakes Act, and that no individual, firm, company or other body of individuals would be permitted to establish and/or administer a professional college. (b) that 50% of the seats in every professional college should be filled by the nominees of the Government or University, selected on the basis of merit determined by a common entrance examination, which will be referred to as "free seats"; the remaining 50% seats ("payment seats") should be filled by those candidates who pay the fee prescribed therefor, and the allotment of students against payment seats should be done on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lection is subject to the restrictions contained in Clause (2) of Article 29 of the Constitution of India, if the institution is an aided one. It was held that allowing minority educational institutions to select its own method of selection, for admission of students to the extent of 50% of the seats would not impinge upon the right under Article 30 of the Constitution of India. It was further held that regulations can be imposed by the State for intake of minority categories with regard to need of the minority in the area which the institution intends to serve. 23. A question, however, arose therein as to whether the State could impose regulatory measures on the institutions run by the minority community which provides for admission by conducting interviews but not solely on the marks obtained in the qualifying examination? In that case, the State had imposed restrictions on the college management compelling it to make admission exclusively on the basis of marks obtained in the qualifying examination. But the management, in addition to the marks obtained by the students, also conducted interviews for making admission to the college. This Court observed that the denial of power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dents and to lay down procedure and method of admission, if any, would be affected in any way by the receipt of State aid? (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 of minorities? 6. (a) 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? (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-a-vis such institution? 7. Whether the member of a linguistic non-minority in one State can establish a trust/society in another State and cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gulated by the State or University concerned, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards. The right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution, the state 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. A minority institution does not cease to be so, the moment grant-in-aid is received by the institution. An aided minority educational institution, therefore, would be entitled to have the right of admission of students belonging to the minority group and at the same time, would be required to admit a reasonable extent of non-minority students, so that the rights under Article 30(1) are not substantially ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsideration should be shown to the weaker sections of the society. A.5(c) 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 an university or board, have to be complied with, but in the matter of day-today 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 prescri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings, without any competent teachers, possessing any. semblance of qualification, and which does not maintain even a fair standard of teaching or which teaches matters subversive of the welfare of the scholars. In such matters, "the State can insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of the institutions to be aided", (emphasis supplied) Thus, it is clear that regulations postulated for granting recognition or aid ought to be with regard to the excellence of education and efficiency of administration vis. to make certain healthy surroundings for the institutions, existence of competent teachers possessing requisite qualifications and maintaining fair standard of teaching. Such regulations are not restrictions on the right but merely deal with the aspects of proper administration of an educational institution, to ensure excellence of education and to avert maladministration in minority educational institutions and will, therefore, be permissible. This is on the principle that when the Constitution confers a right, any regulation framed by the State in that behalf should be to facilitate exercise of that right and not to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions, salaries, experience and other conditions bearing on the merit of an individual for being appointed as a teacher of an educational institution. Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State without interfering with overall administrative control of Management over the staff, Government/University representative can be associated with the selection committee and the guidelines for selection can be laid down. In regard to un-aided minority educational institutions such regulations, which will ensure a check over unfair practices and general welfare, of teachers could be framed. There could be appropriate mechanism to ensure that no capitation fee is charged and profiteering is not resorted to. The extent of regulations will not be the same for aided and un-aided institutions." 37. The majority held that there is an apparent conflict between the provisions of Clause (2) of Article 29 and Clause (1) of Article 30. Article 29 guarantees the right to every citizen not to be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Year Book on Human Rights (1950) and Encyclopaedia Britannica and some other standard works on the theme of protection of minorities. 43. Though in para 153 the view regarding merit was expressed, but while answering the question No. 7 was left open to be answered by the appropriate Benches. 44. The majority opined that the minority status of a group of persons would be determined on the basis of population of the State or Union Territory concerned and not on the whole of the country. It was further held that education within the meaning of the provision of Article 36 would mean and include education from primary level to the post-graduate level and would include professional education as well. 45. The Bench, however, overruled the dicta in Unni Krishnan s case (supra) that education is not a business or occupation within the meaning of Article 19(1)(g) of the Constitution of India, wherein referring to State of Bombay v. R.M.D. Chamarbaugwala [1957 SCR 874] and incorporating the doctrine of res extra commercium, the Court had observed : "While the conclusion that occupation comprehends the establishment of educational institutions is correct, the proviso in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essional colleges should be based on merit by common entrance test conducted by the Government agencies (See Paragraph 59) (b) Certain percentage of seats can be reserved for admission by management out of those students who have passed common entrance test held by itself or by the State agency and the rest of the seats may be filled up on the basis of counsellings by the State agency. Prescription by percentage has to be determined by the Government according to local needs (See Paragraph 68) (c) When the considers the Constitution Bench s earlier statements that higher education is not a fundamental right, it seems unreasonable to compel a citizen to pay for the education of another more so in the unrealistic world, of competitive examinations which assess the merit for the purpose of admission solely on the basis of marks obtained where urban students always have an edge over rural students. Those who seek professional education roust pay for it. (See Paragraphs 37 70). 2(ii) Private aided professional institutions: It would be permissible for the authority giving aid to prescribe by Rules or Regulations the conditions on the basis of which the admissions shall be gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of marks obtained where urban students always have an edge over rural students. In practice, it has been the case of the marginally less merited rural or poor students bearing the burden of a rich and well exposed and urban students. (See Paragraph 37). (ii) The decision in Unni Krishnan insofar as it framed the Scheme relating to grant of admission and fixing fee was not correct, and to that extent the said decision and consequent direction given to UGC, AICTE, Medical Council of India, Central and State Governments etc., is overruled. (Paragraph 45). (iii ) A rational fee structure should be adopted by the management and it would not be entitled to charge capitation fee and appropriate machinery can be devised by the State or University to ensure that no capitation fee is charged and that there is no profiteering, though a reasonable surplus in furtherance of education is permissible. The conditions of granting recognition or affiliation can broadly cover academic and educational matters including the welfare of students and teachers (Paragraph (59, Q.9). 51. The problem presented in these matters should be viewed from the aforementioned perspective. 52. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... termine the scale of fee that it can charge from the students. One also cannot lose sight of the fact that we live in a competitive world today, where professional education is in demand. We have been, given to understand that a large number of professional and other institutions have been started by private parties, who do not seek any governmental aid. In a sense, a prospective student has various options open to him/her where, therefore, normally economic forces have a role to play. The decision on the fee to be charged must necessarily be left to the private educational institution that does not seek or is not dependent upon any funds from the Government. 56. Since the object of setting up of an educational institution is charitable in nature, capitation fee and profiteering cannot be allowed to be indulged in: (a) although the institutions may generate a reasonable revenue surplus for the purpose of development of education and expansion of the institutions. (b) For admission in a professional institutions, merit must play an important role and meritorious candidates should pot be treated unfairly or put at a disadvantage by preferences shown to less meritorious but more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Management out of those students who have passed the common entrance test held by itself or by the State/University and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counselling by the state agency. This 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 post graduation non-professional colleges or institutes. In such professional unaided institutions, the Management will have the right to select teachers as per the qualifications and eligibility conditions laid down by the State/University subject to adoption of a rational procedure of selection. A rational fee structure should be adopted by the Management, which would not be entitled to charge a capitation fee. Appropriate machinery can be devised by the state or university to ensure that no cap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of study to another part or stage of the course of study: (d) "Qualification" means a degree or any other qualification awarded by a University; (e) "regulations" means regulations made under this Act; (f) "specified course of study" means a course of study in respect of which regulations of the nature mentioned in Sub-section (2) have been made; (g) "student" includes a person seeking admission as a student; (h) "university" means a university or institution referred to in Subsection (1) of section 22. (2) Without prejudice to the generality of the provisions of section 12 if, having regard to - (a) the nature of any course of study for obtaining any qualification from any University; (b) the types of activities in which persons obtaining such qualification are likely to be engaged on the basis of such qualification; (c) the minimum standards which a person possessing such qualification should be able to maintain in his work relating to such activities and the consequent need for ensuring, so far as may be, that no candidate secures admission to such course of study by reason of economic power and thereby prevents a more meritorious candidate from securing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and for a period of three years thereafter affiliation shall not be granted to such college in relation to such or similar course of study by that or any other university. (6) On the termination of the affiliation of any college under Sub-section (5), the Commission shall take all such steps as it may consider appropriate for safeguarding the interests of the students concerned. (7) The provisions of this section and the regulations made for the purposes of this section shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force." 62. Detailed regulations have been framed under the aforementioned three Acts regulating admission of students, percentage of the minority students to be admitted into non- minority institutions, determination of fee and matters incidental thereto and ancillary therewith. By reason of the said regulations, the State Government, however, have been delegated with the power to determine the fee structure in respect of professional institutions wherefor requisite guidelines have been issued; pursuant whereto and in furtherance whereof committees have been constituted for the said purpose. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ava, J. stated : "393. The learned Chief Justice has repeatedly emphasised that capitation fees cannot be charged and that there must be no profiteering. We clarify that the authorities concerned will always be entitled to prevent by enactment or by regulations the charging of exorbitant fees or capitation fees. There are many such enactments already in force. We have no gone into the validity or otherwise of any such enactment. No arguments regarding the validity of any such enactment have been submitted before us. Thus those enactments will not be deemed to have been set aside by this judgment. Of course now by virtue of this judgment the fee structure fixed under any regulation or enactment will have to be reworked so as to enable educational institutions not only to break even but also to generate some surplus for future development/expansion and to provide for free seats." 67. Although the parties have raised their contentions as regards constitutionality of some of the provisions of the aforementioned statutes, keeping in view the limited scope for which this Constitution Bench has been constituted, we refrain ourselves from going thereinto. This exercise has to be under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of Article 19 of the Constitution of India. It was submitted that in the event if it be held that the said provisions are ultra vires for the purpose of Clause (6) of the Article 19 the same consequences must ensue for construction of Article 30 of Constitution of India. It was contended that having regard to the majority decision of this Court, if it is held, having regard to Clause (2) of Article 29 of the Constitution that in the event an aid is granted to a professional institution, they will be subject to the same restrictions which any other self-financed scheme institution would face in terms of Clause (6) of Article 19 of the Constitution of India then no purpose can be held to have been achieved by the Constitution (sic) in enacting Clause (1) of Article 30 of the Constitution of India. 71. A citizen of India whether belonging to a minority community or not will have the right under Article 19. A person belonging to a minority community apart from 19(1)(g) has a right to establish, administer institution of their choice. In T.M.A Pal Foundation this Court held that minority institutions can establish and run a professional institution in terms of Clause (1) of Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision in Unni Krishnan s case, it has been observed by Jeevan Reddy, J., at page 749, para 194, as follows: "The hard reality that emerges is that private educational institutions are a necessity in the present day context. It is not possible to do without them because the Governments are in no position to meet the demand particularly in the sector of medical and technical education which call for substantial outlays. While education is one of the most important functions of the Indian State it has no monopoly therein. Private educational institutions -including minority educational institutions - too have a role to play," 75. However, it was also noticed : "138. As we look at it, Article 30(1) is a sort of guarantee or assurance to the linguistic and religious minority institutions of their right to establish and administer educational institutions of their choice. Secularism and equality-being two of the basic features of the Constitution, Article 30(1) ensures protection to the linguistic and religious minorities, thereby preserving the secularism of the country. Furthermore, the principles of equality must necessarily apply to the enjoyment of such rights. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd have formed the subject of provisions in these treaties. The first is to ensure that nationals belonging to racial, religious or linguistic minorities shall be placed in every respect on a footing of perfect equality with the other nationals of the State. The second is to ensure for the minority elements suitable means for the preservation of their racial peculiarities, their traditions and their national characteristics. These two requirements, are indeed closely interlocked for there would be no true equality between a majority and a minority if the latter were deprived of its own institutions and were consequently compelled to renounce that which constitutes the very essence of its being a minority"." 78. The purport and object for which Article 30(1) was inserted in the Constitution cannot be lost sight of. Judgments of Khare. J. (as the CJI then was) and Variava, J. are replete with the debates in the constituent assembly. 79. The argument that the management of the minority institutions cannot be taken over, whereas that of the non-minority institutions can be, is misplaced and in any event irrelevant. This Court in no unmistakable terms held that the State cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Only certain additional protection has been conferred under Article 30(1) of the Constitution of India to bring the minorities on the same platform as that of non-minorities as regards the right to establish and administer an educational institution for the purpose of imparting education to UK: 86. members of their own community whether based on religion or language. Demographically every Indian can become a minority having regard to the fact that even Hindus are in minority in Jammu Kashmir, Punjab and some other States in North-East of India. Even Hindi speaking people except northern India are in minority in other parts of the country. 87. The question, thus, has to be considered keeping in view the fact that every Indian may be a minority, either based on religion or language, in one part of the country or the other. The right of a citizen as a minority in one part of the country cannot be higher than his right as a member of majority in another part of the country. 88. Furthermore, one of us (Variava, J.) speaking for himself and Bhan, J. clearly said : "Article 30 merely protects the right of the minority to establish and administer an educational institution, i. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t III of the Constitution. 95. It is interesting to note that recently in Jennifer Gratz and Patrick Hamacher v. Lee Bollinger decided on 23rd June, 2003 by US Supreme Court the guidelines providing for selection method under which every applicant from an under represented racial or ethnic minority groups was to be automatically awarded 20 points out of 100 points needed to guarantee admission, was struck down as being violative of equality protection clause. It was observed; "The very nature of a college s permissible practice of awarding? value to racial diversity means that race must. be considered in a way that increases some applicants chances for admission. Since college admission is not left entirely to inarticulate intuition, it is hard to see what is inappropriate in assigning some stated value to a relevant characteristic, whether it be reasoning ability, writing style, running speed, or minority race. Justice Powell s plus factors necessarily are assigned some values. The college simply does by a numbered scale what the law school accomplishes in its "holistic, review," Grutter, post, at 25; the distinction does not imply that applicants to the undergraduate colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uality in all respects. Whatever may be the power and jurisdiction of the State and State authorities to make a special provision in favour of backward and downtrodden, when the Court tests the reasonableness of such distinctive State action, it should be done by posing a question whether such State action to ameliorate social, economic and political poverty; whatever be the reason, delays the journey towards proclaimed goal of equality. If a measure tends to perpetuate inequality and makes the goal of equality a mirage, such measure should not receive the approval of the Court. The Court, in such circumstances, has no mould the relief by indicating what would be the reasonable measure or action which furthers the object of achieving equality. The concept of equality is not a doctrinaire approach. It is a binding thread which runs through the entire constitutional text. An affirmative action may, therefore, be constitutionally valid by reason of Articles 15(4) and 16(4) and various directive principles of State policy, but the Court cannot ignore the constitutional morality which embraces in itself the doctrine of equality. It would be constitutionally immoral to perpetuate inequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the teachers or other employees [See In Re Kerala Education Bill, and All Saints High School v. Government of A.P. (supra) ; (iii) Introduction of an outside authority or controlling voice in the matter of service conditions of employees (See All Saints High School v. Government of A.P. (supra); (iv) Framing Rules and Regulations governing the conditions of service of teachers and employees and their pay and allowances (See State of Kerala v. Mother Provincial (supra) and All Saints High School v. Government of A.P. (supra). (v) Appointing a high official with authority and guidance to oversee, that Rules regarding conditions of service are not violated, but, however such an authority should not be given blanket, uncanalised and arbitrary powers (See All Saints High School v. Government of Andhra Pradesh (supra); (vi) Prescribing courses of study or syllabi or the nature of books [See State of Kerala v. Mother Provincial (supra) and All Saints High School v. Government of A.P. (supra)]; and (vii) Regulation in the interest of efficiency of instruction, discipline, health sanitation, morality, public order and the like [See Sidhbajbahi v. State of Gujarat (supra)] 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes." 109. The said provisions were inserted by the Constitution First Amendment Act, 1951. There, thus, exists provision for an exception to Articles 14 and 15 as also Clause (2) of Article 29 of the Constitution of India. The State has also a right to make some reservation for women and children in terms of Clause (3) of Article 15 of the Constitution of India. Clauses (3) and (4) of Article 15 provide an exception to the general rule. A special provision either for women and children in terms of Clause (3) or for advancement of social and backward class of citizens of Scheduled Castes and Scheduled Tribes in terms of Clause (4) must be made by the State in terms of a legislation or an executive order. Such a legislation or executive order would be in relation to the State action. The said provisions cannot be extended by way of imposition of restriction or regulation so as to impair the right of a citizen of India under Article 19(1)(g) or Article 30 thereof. The question which may arise is as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to keep them perpetually segregated in separate and iso1ated cu1tural enc1aves and thereby retard the unity of the nation ? Learned counsel for the minority institutions were equally eloquent as to the sacred obligation of the State towards the minority communities. It is not for this Court to question the wisdom of the supreme law of the land. We the people of India have given unto ourselves the Constitution which is not for any particular community or section but for all. Its provisions are intended to protect all, minority as well as the majority communities. There can be no manner of doubt that our Constitution has guaranteed certain cherished rights of the minorities concerning their language, culture and religion. These concessions must have been made to them for good and valid reasons. Article 45, no doubt, requires the State to provide for free and compulsory education for ail children, but there is nothing to prevent the State from discharging that solemn obligation through Government and aided schools and Article 45 does not require that obligation to be discharged at the expense of the minority communities. So long as the Constitution stands as it is and is not altere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a regulation imposed on an educational institution takes away or abridges the right under Article 30(1). If a legislature can impose any regulation which it think necessary to protect what in its view is in the interest of the State or society, sounds paradoxical that a right which the Constitution makers wanted to be, absolute can be subjected to regulations which need only satisfy the nebulous and elastic test of State necessity. The very purpose of incorporating this right in Part III of the Constitution in absolute terms in marked contrast with the other fundamental rights was to withdraw it from the reach of the majority. To subject the right today to regulations dictated by the protean concept of state necessity as conceived by the majority would be to subvert the very purpose for which the right was given." 113. This Court in Suneel Jatley and Ors. v. State of Haryana and Ors. [(1964) 4 SCC 296] held that reservations for students coming from rural areas would be bad in law. LOCAL NEEDS : 114. It is difficult to define precisely what would constitute "local needs". Mr. Venugopal refers to the Medical Council of India Regulations, 1999 for the purpose of showing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rashtra v. Indian Medical Association and Ors. [(2002) 1 SCC 580], this Court did not decide the question as to whether the expression "technical education" occurring in Article 371(2)(c) of the Constitution is distinct and different from "medical education." The (SIC) questions which arise for consideration herein did not arise there. 117. In Indian Medical Association case (supra), this Court was concerned with Maharashtra University of Health Sciences Act, 1998 wherein the question revolved round as to whether the essentiality certificate would be necessary for the State to establish a Government-run medical college. We cannot read the said judgment out of context. INTERPRETATION OF A JUDGMENT : 118. A judgment, it is trite, is not to be read as a statute. The ratio decidendi of a judgment is its reasoning which can be deciphered only upon reading the same in its entirety. The ratio decidendi of a case or the principles and reasons on which it is based is distinct from the relief finally granted or the manner adopted for its disposal. [See Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa and Ors. v. N.C. Budharaj (Deceased) By. Lrs. and Ors. (2001) 2 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntended by Mr. Nariman, that answers to the questions would be the ratio to a judgment. The answers to the questions are merely conclusions. They have to be interpreted, in a case of doubt or dispute with the reasons assigned in support thereof in the body of the judgment, wherefor, it would be essential to read the other paragraphs of the judgment also. It is also permissible for this purpose (albeit only in certain cases and if there exist strong and cogent reasons) to look to the pleadings of the parties. 125. In Keshav Chandra Joshi and Ors. v. Union of India and Ors. [1992 Supp (1) SCC 272], this Court when faced with difficulties where specific guidelines had been laid down for determination of seniority in Direct Recruits Class II Engineering Officers Association v. State of Maharashtra, held that the conclusions have to be read along with the discussions and the reasons given in the body of the judgment. 126. It is further trite that a decision is an authority for what it decides and not what can be logically deduced therefrom. [See Union of India v. Chajju Ram ]. 127. The judgment of this Court in T.M.A. Pai Foundations (supra) will, therefore, have to be construed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther law for the time being in force, the Government, by notification, regulate the tuition fee or any other fee or deposit that may be received or collected by any educational institution or class or classes of such educational institutions in respect of any or all class or classes of students: Provided that before issuing a notification under this sub-section, the draft of which shall be published, in the Tamil Nadu Government Gazette stating that any objection or suggestion which may be received by the Government, within such period as may be specified therein, shall be considered by them. (2) No educational institution shall receive or collect any fee or accept deposit in excess of the amount notified under Sub-section (1). (3) Every educational institution shall issue an official receipt for the fee or deposit received or collected by it." 130. Once, however, it is held that such a provision would not constitute a reasonable restriction within the meaning of Clause (6) of Article 19, it must also be held that such a provision would not satisfy the test of permissible regulations within the meaning of Article 30 thereof. 131. The ground reality, however, cannot be l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso required to be taken care of. The State must evolve a detailed procedure for constitution and smooth functioning of the Committee. 135. While this Court has not laid down any fixed guidelines as regard fee structure, in my opinion, reasonable surplus should ordinarily vary from 6% to 15%, as such surplus would be utilized for expansion of the system and development of. education. 136. The institutions shall charge fee only for one year in accordance with the rules and shall not charge the fees for the entire course, 137. Profiteering has been defined in Black s Law Dictionary, Fifth edition as: "Taking- advantage of unusual or exceptional circumstances to make excessive profits." 138. With a view to ensure that an educational institution is kept within its bounds, and does not indulge in profiteering or otherwise exploiting its students financially, it will be open to the statutory authorities and in its absence by the State to constitute an appropriate body, till appropriate statutory regulations are made in that behalf. 139. The respective institutions, however, for the aforementioned purpose must file an appropriate application before the Committee and place befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard to paragraphs 58 and 59 are referable to both to the minority and non-minority unaided institutions. Paragraph 68 in no uncertain terms lays emphasis on merit for the purpose of admission to professional institutions. 144. However, paragraphs 58 and 59 also deal with professional institutions although discussions appear under different heading. This, however, would not minimise the importance of the statement of law made therein. 145. Paragraph 68 does not state that the statement of law made therein, applies only to the minorities, as for the purpose of local needs it refers to different percentages both for minority aided and non-minority unaided professional colleges. It cannot, therefore, be said that paragraph 68 has to be read in isolation and paragraphs 58 and 59 of the judgment would be irrelevant for the said purpose. If the said paragraphs are read conjointly, there cannot be any doubt that merit must be at the forefront. For the said purpose professional and higher educational institutions have been clubbed together. 146. A dichotomy has arisen in view of the findings of the bench occurring in paragraphs 58 and 59 on the one hand and 68 of the judgment on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down by the University or the other statutory bodies entitled to grant recognition to provide for merit based selection. (The same, however, in my opinion, would not mean that no condition other than those imposed at the time of grant of recognition can be imposed by way of legislation or otherwise inasmuch as the field of imparting education in professional institutions is governed by statutes. To the said extent, it has to be read down); (4) The management of a private unaided professional colleges for the purpose of admitting students will have options :- (a) to hold a common entrance test by itself; or (b) to follow the common entrance test held by the State or the University. The students belonging to the management quota may be admitted having regard to the common entrance test either held by the management or by the State/University although the test may be common. So far as students belonging to poorer or backward section of society is concerned. their seats will have to be filled up on the basis of counselling by the State agency. (As would appear from the discussions made hereinafter, it cannot be taken to its logical conclusin); (5) The percentage of management qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aided. 155. The dictum of the court in St. Stephen vis-a-vis T.M.A. Pai Foundation must be read in that context. It cannot be said as a matter of legal proposition that in each and every case the minority educational institutions would be entitled to fill up more than 50% of the seats from amongst the students of their choice and that too irrespective of merit. The fact that even students belonging to minority community take admission in colleges rim or aided by the State or other private unaided colleges cannot be lost sight of. On taking into consideration all the relevant criteria only the percentage can be worked out. It would be, in my considered opinion, wrong to compare the unaided institutions always with aided institutions. St. Stephen should be understood in proper perspective. What is explained in T.M.A. Pai (supra) is that there cannot be any fixed percentage. Each case will have to be considered on its own merit. Need of the institution should be the prime concern. Percentage will have to be worked out having regard to the need only. 156. For the purpose of achieving excellence in a professional institution, merit indisputably should be a relevant criterion. Me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st. The merit of the students whether belonging to the minority community or otherwise, thus, may be required to be placed on more rigid test. 159. While considering this question, we may not also loose sight of the fact that a student who aspires to take admission in a professional college keeping in view the extent of competition he has to face, would like to appear in as many examinations as possible. For the said purpose he or she may not choose only one State. Even in a State like Karnataka, as has been noticed in T.M.A. Pai Foundation (supra), a large number of private institutions exist. But, if they are permitted to hold their own examinations, not only the students will have to purchase different admission former which as noticed hereinbefore, may cost between Rs. 500/- to Rs. 1,000/- but he may be asked to appear in examinations at various places on the same day or on the next day and having regard to the distance, the transport facilities and other factors, he may not be able to appear therein. Travelling from place to place for the purpose of appearance at the examinations in quick succession would also entail a huge expenditure. It may also be difficult, to direct th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehalf, as has been rightly pointed out by Mr. Venugopal. The need of each State must be judged separately. A number of students may like to take a chance of taking admission in more than one State. Unless proper mechanism and requisite infrastructure therefor is created, as at present advised, it may not be possible for the Central Government to hold any examination on all-India basis. There is another aspect of the matter which cannot be lost sight of. There must be an agency which would have to determine the equivalence of several examinations. Many universities have adopted such a mechanism. The standard of education varies from State to State or university to university or board to board. In such a situation, equivalence of degrees must be considered for the said purpose by an appropriate authority. 162. In the aforementioned premise, I am of the opinion that the right of the minorities should be protected and fairness and transparency in holding such examinations would also be maintained if the minority institutions come to a consensus through their association or federation to hold a common test under the supervision of a monitoring committee which may be subject to verif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eaker sections of society may be fixed on the basis of the entrance test held by the concerned State Government or the University. Economic disability of a meritorious student should come to the forefront for determining criteria as regard poor or weaker sections of the society. 166. There cannot, however, be any gain-saying that the appropriate statutory authority on a deeper consideration of the matter may prescribe a suitable method for the purpose of determining the merit as also the fair and transparent manner in which such examinations can be conducted. Such a power exists under the UGC Act, MCI Act and AICTE Act. The relevant enactments wherein these statutory authorities have been created provide for such law. However, assuming such a machinery is not evolved, the State may constitute a body which may be headed by a person who has been a judge of the High Court to be nominated by the Chief Justice thereof. Standard of education at no cost shall be given a go by. 167. Furthermore, any institution if it thinks proper and expedient, may file an application for grant of exemption so as to enable it to hold its own examination. An application in this behalf should be filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r religion may be 30 or 35, the minority institution established by members of that religion may have a higher stake than the members of the community professing a religion but the population of which is negligible. Similar may be the case with minority institutions based on language. 171. The percentage of seats will also depend upon the need of the community in a particular State as also the need of the institution itself. The nature of the professional course would also have relevance. All these factors must be taken into consideration by the appropriate committee or Body so long a statutory regulation is not framed in this behalf. 172. Furthermore, the need of the community vis-a-vis the local needs must be judged upon taking into consideration the relevant factors and ignoring irrelevant ones. In terms of Paragraph 68 of the judgment, local need would be a relevant factor for the purpose of determining the percentage of students who would be admitted on non-minority quota. Local needs, if it is compelling state interest, will have, a primacy over the need of the minority community and in that view of the matter it would not be correct to lay down a proposition of law tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... education and post graduate level education, merit indisputably should be a relevant criteria. At the post-graduation 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. HUMAN RIGHTS ASPECTS OF SELECTION ON THE BASIS OF MERIT : 179. This aspect of the matter may also be considered from Human Rights angle. 180. Rights of minorities, on the one hand, and rights of persons to have higher education and right of development should be so construed so as to enable the Court to give effect thereto. 181. The Universal Declaration of Human Rights, 1948 provides for 27 rights. Right of Education is also one of the human rights. Article 26 reads thus: "(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional educati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14) in which "association with a national minority" is listed among a series of grounds upon which discrimination is prohibited. The International Covenant on Civil and Political Rights, adopted by the UK General Assembly in 1966, includes an article on the rights of persons belonging to minorities which reads: "Article 27. In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members or their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language." 186. Among the decisions of principal organs of the United Nations which have dealt with, the question of special protective measures for ethnic, religious, or linguistic groups are three resolutions of the General Assembly: (1) on the future government of Palestine, (2) on the question of the disposal of the former Italian colonies and (3) on the question of Eritrea. In addition, the Statue of the City of Jerusalem, approved by the Trusteeship Council, on 4 April 1950, provides special protective measures for ethnic, religious, or linguistic groups in articles d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... economic point of view but also having regard to the international treaties, declarations and conventions on Human Rights. The right of a minority is a human right so also the right of development. Thus, subject to reasonable restrictions, any unaided institution imparting professional courses may although exercise greater autonomy in the matter of management and determination of the fee structure, it will have a limited right so far as the right to admit students is concerned. T.M.A. Pai Foundation says that merit shall be the criteria. Right of development finds place in WTO and GATT. It takes into consideration globalisation and opening up of economy. Excellence in professional education must be viewed from the economic interest in the country. In order to compete with the other developed countries, GDP of India should be around 15% instead of present rate of 5%. This can be achieved only by producing students of excellence, which can be achieved only by encouraging institutions of excellence imparting professional education to those who are meritorious. Giving encouragement to the students, having better merit will, thus, have a direct nexus with the economic and consequently t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various medical colleges and educational institutions and universities to move in. Under WTO and GATT human development has taken its firm root. A decent life to the persons living in the society in general is perceived. 194. In the said scenario this Court in Kapila Hingorani (supra) observed: "The States of India are Welfare States. They having regard to the constitutional provisions adumbrated in the Constitution of India and in particular Part IV thereof laying down the Directive Principles of the State Policy and Part IVA laying down the Fundamental Duties are bound to preserve the practice to maintain the human dignity." 195. To achieve this, the promotion of human development and the preservation and protection of human rights proceed from a common platform. Both reflect the commitment of the people to promote freedom, the wellbeing and dignity of individuals in society. Human development as a human right has a direct nexus with the increase in capabilities of human beings as also the range of things they can do. Human development is eventually in the interest of society and on a larger canvas, it is in the national interest also. As a human right, human development f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to restrictions that may satisfy the test of Clause (6) of Article 19 of the Constitution of India or regulations in terms of Article 30 depending upon the national interest/public interest and other relevant factors. We, however, wish to emphasise that the State/University while granting recognition or the affiliation cannot impose any condition in furtherance of its own needs or in pursuit of the Directive Principles of State Policy. AN EPILOGUE : 201. It is unfortunate that a Constitution Bench had to be constituted for interpreting a 11-Judge Bench judgment. Probably in judicial history of India, this has been done for the first time. It is equally unfortunate that all of us cannot agree on all the points, despite the fact that the matter involves construction of a judgment. In the name of interpretation we have to some extent, however little it may be re-written the judgment. We have laid down new laws and issued directions purported to be in terms of Article 142 of the Constitution. We have interpreted T.M.A. Pai; but we have also made endeavours to give effect to it. In some areas it was possible; in some other it was not. 202. We have refrained ourselves from ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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