TMI Blog2011 (5) TMI 1085X X X X Extracts X X X X X X X X Extracts X X X X ..... any constitutional provision that allows it to choose to be an educational institution serving only a small class of students from within the general pool. If indeed Army personnel now constitute a Socially and Educationally Backward Class , then under Clause (5) of Article 15, it is for the State to determine the same, and provide by law, for reservations of wards of Army personnel, in consonance with the constitutional jurisprudence extant with regard to how a Socially and Educationally Backward Class is to be delineated, for instance by removal of the creamy layer, and that the extent of reservations to be provided ought not to exceed certain levels etc. That has not happened in this instant matter. The Delhi Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-Exploitative Fee And Other Measures to Ensure Equity And Excellence) Act, 2007 (Delhi Act 80 of 2007) or any provisions thereof do not suffer from any constitutional infirmities. The validity of the Delhi Act 80 of 2007, and its provisions, are accordingly upheld. The Notification dated 14-08-2008 issued by the Government of National Capital Territory of D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducation as an occupation, damage the environment in which our students are taught the lessons of life, and imparted knowledge, and further also damage their ability to learn to deal with the diversity of India, and gain access to knowledge of its problems, so that they can appreciate how they can apply their formal knowledge in concrete social realities they will confront. Consequently, given the absolute necessity of achieving the egalitarian and social justice goals that are implied by provisions of clause (5) of Article 15, and the urgency of such a requirement, we hold that they are not a violation of the basic structure, but in fact strengthen the basic structure of our constitution. Consequently, we also find that the provisions of Delhi Act 80 of 2007, with respect to various categories of reservations provided therein to be constitutionally valid. - Civil Appeal No. 8170 Of 2009, 8171 OF 2009, Writ Petition (Civil) No. 192 OF 2010, 320 OF 2009, 528 OF 2009 - - - Dated:- 12-5-2011 - B. Sudershan Reddy And Surinder Singh Nijjar, JJ. JUDGEMENT B.Sudershan Reddy,J: Where the mind is without fear and the head is held high Where knowledge is free Where th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability to apply knowledge to practical affairs of all segments of population, and effectively shut off the feed back loop that practice by users could have provided, so that new knowledge could be generated. Our practical knowledge ossified, and deductive knowledge became ever more ready to justify the worth of the high and the mighty, for such justification brought status to the peddlers of mysticism and enabled the high and the mighty to evade questions of accountability to the masses. 4. It was that truth that our national poet spoke about when he prayed that knowledge would be free. It was that truth that the makers of modern India, those great souls, who could see the causes for past events, and foresee the needs of the future, tried to inscribe in our Constitution. It is not any wonder that our first Prime Minister in the excitement of the first seconds of freedom from foreign rule spoke about our tryst with destiny to the Constituent Assembly, and yet in the same breath also added now the time comes when we shall redeem our pledge, not wholly or in full measure, but very substantially. As Amartya Sen points out those were heady times, of promises made and of hope ki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ational institutions cannot be compelled to select students of lower merit as defined by marks secured in an entrance test, notwithstanding the fact that the State may have come to a rational conclusion that such underachievement is on account of social, economic or cultural deprivations and consequent denial of admissions to institutions of higher education deleterious to national interest and welfare. On the other hand it is contended that private unaided non-minority educational institutions, established by virtue of citizens claimed right to the charitable occupation, education , an essential ingredient of which is the unfettered right to choose who to admit, may define their own classes of students to select, notwithstanding the fact that there may be other students who have taken the same entrance test and scored more marks. It would appear that we have now entered a strange terrain of twilight constitutionalism, wherein constitutionally mandated goals of egalitarianism and social justice are set aside, the State is eviscerated of its powers to effectuate social transformation, even though inequality is endemic and human suffering is widely extant particularly amongst tradit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fulfill the regulatory requirement that a medical college possess access to a general hospital of sufficient number of beds as assurance of availability of facilities to meet the curricular requirements. 10. It is also stated that the wards of army personnel suffer from extensive disadvantages that children of the regular civilian population do not face. It is of course well recognized that army personnel are, by the very nature of their job, deputed to serve in various inhospitable terrains, or in regions with scant facilities. Such assignments imply non-availability of proper educational facilities for their wards in large periods of the critical growing periods of the children. Further, in order to facilitate the education of the children, personnel of army are also compelled to maintain dual homes, where the member of the army personnel is in one place, and his family resides in another place. This places tremendous economic hardships, which could be conceived as also imposing hardships in being able to secure any special coaching or training for the children. Further, the absence of the father figure could also imply a certain imbalance in family lives. All these contribut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Capitation Fee, Regulation of Admission, Fixation of Non-Exploitative Fee And Other Measures to Ensure Equity And Excellence) Act, 2007 ( Delhi Act 80 of 2007 ). The relevant portions of the applicable laws are reproduced below. Section 6 of GGSIU Act, 1998 provides as follows: (1) The University shall be open to persons of either sex and of whatever race, creed, caste or class, and it shall not be lawful for the University to adopt or impose on any person any test whatsoever of religious belief or profession or political opinion in order to entitle him to be appointed as a teacher of the University or to hold any office therein or to be admitted as a student of the University, or to graduate thereat, or to enjoy or exercise any privilege thereof; (2) Nothing in this section shall be deemed to prevent the University from making any special provision for the appointment or admission of women or of persons belonging to the weaker sections of the society, and in particular, of persons belonging to the Scheduled Castes and the Scheduled Tribes. 13. The Board of Management of GGSIU, pursuant to Sections 27 and 6(2) of GGSIU Act, 1998, enacted Ordinance 30; vide Board of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otal seats in an unaided institution shall be allocated as management seats; (b) eighty five percent of the total seats, except the management seats, shall be allocated for Delhi students and the remaining fifteen percent seats for the outside Delhi students or such other allocation as the Government may make by notification in the official Gazette, direct; (c) supernumerary seats for non-resident Indians and any other category shall be as may be prescribed. (2) In the seats mentioned in sub-section (1), an institution shall reserve- (a) seventeen percent seats for the candidate belonging to the Scheduled Castes category, one percent seats for the candidates belonging to the Scheduled Tribes category and such percentage of seats, for any other category including other Backward Classes as may be prescribed; (b) for seats not mentioned as allocated for Delhi students in sub-section (1), fifteen percent seats for candidates belonging to the Scheduled Caste category, seven and a half percent seats for the candidates belonging to the Scheduled Tribes category and such percentage of seats, for any other category as may be prescribed. (c) Subject to clause (a) and clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GGSIU or the Delhi Act 80 of 2007, they would have secured an admission in ACMS if it had followed the principle of inter-se ranking, based on marks secured in the common entrance test, of all the students applying to ACMS if ACMS had not proscribed all non-wards of army personnel from applying; and (3) in fact ACMS is an aided educational institution, in as much as it has received massive aid from the State, in the form of expensive land and access to Army Base Hospital in Delhi to meet the curricular requirements of clinical training in a general hospital that is required by every medical college, per regulations of the Medical Council of India. 18. In this regard, the defence of ACMS, and its parent society, AWES, in the High Court has been that the exemptions granted to it by the Government of Delhi were lawful, and hence they were well within the law in admitting students only from the wards of army personnel as identified by its admission policy. Further ACMS, and AWES, also claim that in any event the ratio of TMA Pai, as further explained by P.A. Inamdar, is that, contrary to what the writ petitioners were claiming, they have an unfettered right, under Article 19(1)(g), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30 of GGSIU would be applicable but for exemptions granted by Government of Delhi. This train of thought seems to have also affected the decisions of the learned Single Judge and the Division Bench of the High Court of Delhi, which decisions we broadly summarise below. The learned single judge found that the claimed power to exempt, by the Government of Delhi, under clause (b) of Sub-section (1) of Section 12 of Delhi Act 80 of 2007 to be applicable as regards only the 15% of seats remaining after the seats allocated to management quota. Thereupon, using various rationale, including the judgments of this Court in TMA Pai, P.A. Inamdar, and Islamic Academy of Education v State of Karnataka (2003) 6 SCC 697, engaged in an astonishing sequence of logic that twisted and turned, and finally found that 79% of the seats could be filled by wards of Army personnel, and the remaining 21% by students belonging to the general category. The legislatively mandated allotment of seats for various reserved categories, including but not limited to Scheduled Castes and Scheduled Tribes, was completely ignored. On appeal by both sides, the Division Bench embarked upon a different mode of reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicable to unaided private professional institutions, and furthermore the exemptions granted by the Government of Delhi from the operation of Delhi Act 80 of 2007, and relied on by ACMS and AWES, in making the admissions in the manner it has would also not be applicable. The applicable law, consequently, would be Ordinance 30 of GGSIU, which provides that an upper limit on reservations to be 5% for wards of defense personnel. 21. The learned Counsel for the Appellants also contended that, even if ACMS were deemed to be both a private and an unaided professional institution, the exemption granted by Delhi Government in allowing ACMS to admit only wards of Army personnel to 100% of its seats is ultra vires. In this regard it was pointed out that sub-section (2) of Section 12 of Delhi Act 80 of 2007 vide clause (a) provides for specified reservations for Scheduled Castes and Scheduled Tribes, and further, through rules enacted pursuant to Section 23(g), the Government of Delhi has fixed the percentage of reservations for wards of Defence personnel, as enabled by clause (c) of Sub-section (2) of Section 12, at 5%. It was contended that there is no provision in Delhi Act 80 of 2007 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate would be an unreasonable restriction when imposed on non-minority private unaided educational institutions, it cannot be said that P.A. Inamdar stands for the proposition that private non-minority private unaided professional educational institutions could select students from a pre-defined group from within the entire general category, thereby disregarding the students in the general category who have received higher marks. Apart from that, the holding in Islamic Academy that a quota that can be filled up by the management at its sole discretion could never be to the extent of 100%, has not been overruled by P.A. Inamdar. Consequently, it must be taken that the ratio in Islamic Academy holds the field with regard to such questions. It was also further contended that this Court in P.A. Inamdar has held that professional colleges stand on an entirely different footing, and that the requirement that admissions strictly be on the basis of merit, as determined by marks in a common entrance test, in fact takes precedence over other considerations including the rights of managements of professional unaided non-minority colleges to select students according to their choice. 24. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of Delhi, and as such meet the statutory requirements also. 26. Learned Senior Counsel, Mr. K.K. Venugopal submitted that admissions being effectuated by ACMS ought to be recognized as being based purely on inter-se merit i.e., marks received in common entrance test by wards of Army personnel and that no reservations of seats were being made on the basis of caste, race, religion, residence/domicile, backwardness or any such criteria. Tracing the history of the law as applicable to reservations and admissions to colleges, in case law from Unnikrishnan J.P. v. State of A.P. (1993) 1 SCC 645, through TMA Pai, Islamic Academy, to finally P.A. Inamdar, he submitted that P.A. Inamdar holds the field, in as much as it over-ruled parts of Islamic Academy, and explained the eleven judge bench decision of this court in TMA Pai. His main contention was that this court in P.A. Inamdar has found that a private unaided non-minority educational institution is entitled, under sub-clause (g) of clause (1) of Article 19, to the same rights as a private unaided minority institution under Clause (1) of Article 30: i.e., in as much as minorities have the right to choose students entirely from a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extent he also submitted that where a particular class is a source of admission, the principles relating to reservations would not apply to the same where, the class itself is well defined and rational. The learned Senior Counsel, Mr. Jaideep Gupta submitted that this Court in P.A. Inamdar, interpreting TMA Pai, has held that the essential ingredients of freedom of management of private non-minority unaided educational institutions include the right to admit students and recruit staff, and determine the quantum of fee to be charged, and that they cannot be regulated, either with respect to minority or non-minority educational institutions. In addition he also submitted that Clause (5) of Article 15, inserted by the 93rd Constitutional (Amendment) Act, 2005, in so far that it enables special provisions by the State with respect to admission of Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Classes in private non-minority unaided institutions, would be unconstitutional and violative of the basic structure of the Constitution. In particular he relied on the sole opinion of Bhandari J., in Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1 that enabling pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d have to apply with the full force that they were intended to be. 30. Only thereafter, would it be logical to proceed to examine whether the interpretations urged by the Appellants, or the Respondents, with regard to decisions of this Court in TMA Pai, P.A. Inamdar, and Islamic Academy, that would apply with respect to seats that are unaffected by reservations specified in sub-section (2) of Section 12 and allocation of seats, as between Delhi and non-Delhi students, specified in sub-section (1) of Section 12 of the said Act. It is to be noted that the said Act specifically mandates that all admissions to ACMS would have to be made in accordance with merit of students, based on marks secured in the common entrance test. With respect to those students covered by various categories such as Scheduled Castes, Scheduled Tribes and other constitutionally permissible classes, as delineated in Sub-section (2) of Section 12, and as applicable with respect to categories described in Subsection (1) of Section 12, the rule of inter-se merit, based on marks secured in common entrance test by students falling into each category, would apply. That would also mean, then, that with respect to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi Act 80 of 2007. This is so, because Delhi Act 80 of 2007 is a later enactment, much more general, containing a complete code covering the entire terrain of admissions of students to professional unaided non-minority institutions affiliated to all universities in NCT of Delhi, including GGSIU, with specific provisions therein regarding allocation of seats between Delhi and non-Delhi students, and reservations applicable in terms of those students falling within constitutionally permissible classes. However, the expression used by the Division Bench, that Ordinance 30 has lost its relevance : to the extent that it may suggest a loss of general relevance is not correct. Considerable care ought to be exercised in delineating the applicability of unrepealed sections of a previous statute, even if they conflict with the provisions of a later statute with respect to some specific terrain of activities. After all, Ordinance 30 of GGSIU may be applicable with respect to many other situations, not involving the terrain covered by Delhi Act 80 of 2007. In this regard it would be appropriate to cite the words of Mudholkar J., judgment in Municipal Council, Palai v. T.J. Joseph 1963 AIR 156 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evident from above, with which exemptions from the operation of vital aspects of a law enacted by the legislature seemed to have been undertaken. In any event, we will proceed on the assumption that the Government of Delhi intended that the exemption be granted with respect to wards of Army personnel as opposed to Army personnel and examine whether the exemptions granted are valid or not. 36. We find that the High Court has erred in its interpretation of Subsection (1) of Section 12, and indeed the very thrust of Delhi Act 80 of 2007. One of the cardinal principles of interpretation is to look for the purpose that the Act seeks to achieve, and in this regard what is also crucial is the relationship of each clause or sub-clause to the other. The strict lexicographical arrangement of sub-clauses, one after the other, ought not to be taken to mean that the one following is of lesser importance. 37. Reading Section 12 of Delhi Act of 2007 synoptically, we find that Sub-section (2) of Section 12 pervades the entire space of how seats are to be allocated. In fact, the preamble to the Act, states that it is being enacted to provide for allotment of seats to Scheduled Castes, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought a policy specifically enacted by the legislature, thereby turning on its head, as it were, every known principle of our constitutional law. 39. Furthermore, by permitting ACMS to admit only students of wards of army personnel, notwithstanding the fact there could be others who have taken the common entrance test, and have secured more marks than the wards of Army personnel, the exemptions granted by Delhi Government also set at naught the legislative intent to ensure excellence by mandating that all admissions be made on the basis of inter-se merit within each of the categories of students. The general category would comprise of all students who have taken the common entrance test, and other wise satisfy the conditions of sub-section (1) of Section 12 of the Delhi Act 80 of 2007, after the seats reserved pursuant to sub-section (2) of Section 12 are reserved i.e., allocated for the described constitutionally permissible categories therein. The said Act clearly specifies that its objective is to achieve excellence, and one of the methods specified to achieve the same is of admitting students on the basis of inter-se merit in each of the categories specified in Section 12. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islation by the State Legislature already covering the field. (See State of A.P. v. Lavu(1971) 1 SCC 607) In the instant case, the legislature of NCT of Delhi has specifically set out a clear policy with respect to reservations for Scheduled Castes and Scheduled Tribes and other weaker sections of the population. The duty of the executive is to implement that policy, and not to abrogate it. 41. The Government of Delhi also seeks to claim legitimacy of the decision by the Cabinet of Delhi and the Notification by Lieutenant Governor granting ACMS permission to admit 100% of the seats to wards of army personnel to the text of sub-section (b) of sub-section (1) of Section 12. The interpretation of the said sub-section sought to be pressed upon us is as follows: That the first part of said sub-section ought to be read as eighty five percent of the total seats except the management seats, shall be allocated for Delhi students and the remaining 15% percent of seats for outside Delhi students , followed by an or , and then the second part such other allocation as the Government by notification in the Official Gazette Direct . Such an interpretation it is claimed gives the government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e also denizens of Delhi, the legislature of Delhi would have taken into account the needs of Scheduled Castes and Scheduled Tribes in Delhi. The discretion to vary the 15% reserved for non-Delhi citizens was in all likelihood to enable the Government of Delhi to increase the percentage of seats allocated to denizens of Delhi, in the event a sizeable number of other backward classes of students also need to be accommodated in the professional colleges of Delhi. By fixing a number, 15%, for non-Delhi students, the legislature intended to set a maximal limit on the number of non-Delhi students who could be admitted, and specified the percentage of seats that could be allocated to Scheduled Castes, Scheduled Tribes and other weaker sections which could be reduced in the event that Government of Delhi needed to accommodate the special exigencies of the needs of denizens of Delhi, including but not limited to its backward classes. 44. The Government of Delhi has also claimed that a distinction needs to be drawn between allocation as used in sub-section (1) of Section 12 and reservation as used in sub-section (2) of Section 12. The claim of Government of Delhi is that the power to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set at naught its intent that at least 85% of seats that remain after 10% of management seats are set aside, be allocated to students of Delhi, also be set at naught. Consequently, the defense by Government of Delhi of the exemptions it granted to ACMS, on the use of different words, allotment in sub-section (1) of Section 12, and reservations in sub-section (2) of Section 12, also fails. 45. Thus we find that the exemption granted by the Government of Delhi allowing ACMS to fill 100% of its seats by wards of army personnel violates the basic principles of democratic governance, of the constitutional requirement that executive implement the specific and mandatory policy legislated by the legislature, and violates the provisions of Delhi Act 80 of 2007. In fact, the actions of the Government of Delhi, for the aforesaid reasons are wholly arbitrary, without any basis in law, and ultra vires. Section 14 of the said Act specifies that any admission made in contravention of the provisions of the Act or the rules made thereunder, shall be void, and further Section 18 provides that those making admissions in contravention of the provisions of Delhi Act 80 of 2007 may be punished by im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CMS should be upheld. Additionally it was also submitted by the learned Senior Counsel that allowing ACMS to pursue such an admission policy would be in the national interest. 50. At this stage we wish to make a necessary and a primordially important observation that has troubled us right throughout this case. The primordial premise of the arguments by unaided educational institutions in claiming an ability to choose students of their own choice, in case after case before this court, was on the ground that imposition of reservations by the State would impede their right to choose the most meritorious on the basis of marks secured in an objective test. It would appear that, having unhorsed the right of the State to impose reservations in favor of deprived segments of the population, even though such reservations would be necessary to achieve the Constitutionally mandated goals of social justice and an egalitarian order, unaided institutions are now seeking to determine their own delimited sources of students to the exclusion of everybody else. The fine distinctions made by learned Senior Counsel, Mr. Jaideep Gupta, that an allocation when made by the State is reservation, as op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that their admission procedures are fair, transparent and nonexploitative. Mr. K.K. Venugopal submits that there can be a consensual agreement between the State and the private unaided institution, regarding seat sharing, but the State cannot unilaterally demand any such share. Further, Mr. Jaideep Gupta claims that by admitting only students who are wards of army personnel, on an all India basis, what ACMS is actually doing is only defining a source of students and not reserving any seats. 53. We cite some additional paragraphs, including the paragraphs relied on by learned Senior Counsel from the judgment of this Court in P.A. Inamdar to test the above propositions. In particular we cite below paras 127, 136, 137 and 138: in extenso ( and emph. supp in cited paragraphs): 127. Nowhere in Pai Foundation either in the majority or the minority opinion, have we found any justification for imposing seat sharing quota by the State on unaided private professional educational institutions and reservation of the State, or State quota seats or management seats. 136. Whether minority or non-minority institutions, there may be more than one similarly situated institution impart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xploitative. All institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the above said triple tests. The State can also provide a procedure of holding a common entrance test in the interest of securing fair and merit based admissions and preventing maladministration. The admission procedure so adopted by a private institution or group of institutions, if it fails to satisfy all or any of the triple tests, indicated hereinabove, can be taken over by the State substituting its own procedure. The second question is answered accordingly. 138. It needs to be specifically stated that having regard to the larger interest and welfare of the student community to promote merit, achieve excellence and curb malpractices, it would be permissible to regulate admissions by providing a centralized and single-window procedure. Such a procedure to a large extent, can secure grant of merit based admissions on a transparent basis. Till regulations are framed, the Admission Committee can oversee admissions so as to ensure that merit is not the casualty. 54. By examining paragraphs 127 and 137 in the larger context of paragrap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat this Court surmised that there were no substantive differences as such, in terms of operational significance as to the groups from which the non-minority and minority unaided educational institutions could select students from, notice of the context, the specific issue that the Court was dealing at that point in the judgment, leads to a different conclusion. The issue that the Court was dealing with was with respect to whether the State could compel unaided educational institutions to choose students with lesser percentage of marks in order to implement its reservation policies. The last sentence of para 124 clarifies this: The State cannot insist on private educational institutions which receive no aid from the State to implement the State s policy on reservation for granting admission on lesser percentage of marks i.e., on any criterion except merit. Minority institutions have to choose from their own minority group who are otherwise qualified, and nonminority institutions have to choose from the entire group who are otherwise qualified. The modality of choosing within those groups has to be on the basis of inter-se ranking determined in accordance with marks secured in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m to engage in the occupation of education pursuant to sub-clause (g) of clause (1) of Article 19. In as much as Clause (5) of Article 15 is now part of the Constitution, reservations by the State for socially and educationally backward classes without the creamy layer, and for Scheduled Castes and Scheduled Tribes are now constitutionally permissible categories of state imposition on nonminority educational institutions. The status of constitutional permissibility removes the basis for finding reservations to be an unreasonable restriction in the freedom to select students only on the basis of merit with respect to all the seats in a non-minority unaided educational institution. Consequently, the unaided non-minority educational institutions would have to comply with the State mandated reservations, selecting students within the specified reservation categories on the basis of inter-se merit. The question then is whether with respect to the remaining seats, can the state insist that non-minority private unaided institutions select the most meritorious students, as determined by the marks secured in the qualifying test? The answer to that question is in the affirmative. As we h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the structure that this Court in P.A. Inamdar gleaned from the judgment of this Court in TMA Pai provides some pathways for these complex interpretational tasks that are imposed on courts dealing with many specific aspects of the wider universe of facts and law considered by this Court. And depending on the level of judicial review, the nature of judicial review, the courts may also have to take a look at the wider universe of facts and laws not taken into account by this Court in TMA Pai, Islamic Academy and P.A. Inamdar. The majority of the questions dealt with in TMA Pai related to minority institutions. In this regard, P.A. Inamdar, gleans three kinds of minority institutions that were dealt with in TMA Pai: (a) minority educational institutions, unaided nor seeking recognition or affiliation; (b) minority educational institution asking for affiliation or recognition; and (c) minority educational institutions receiving State aid, whether seeking recognition and affiliation or not. To this broad classification, P.A. Inamdar finds that TMA Pai has considered three parallel non-minority educational institutions also: (a1) non-minority educational institutions, neither seeking aid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nister educational institutions of their choice . It is also further noted in para 91 that though Article 30(1) is styled as a right, it is more in the nature of protection for minorities. The following cited text of the opinion in paras 91, 92 and 93 from P.A. Inamdar are critical: 91. But for Article 30, an educational institution, even though based on religion or language, could have been controlled or regulated by law enacted under clause (6) of Article 19, and so, Article 30 was enacted as a guarantee to the minorities that so far as the religious minorities are concerned, educational institutions of their choice will enjoy protection from such legislation .. The minorities being numerically less qua non-minorities, may not be able to protect their religion or language and such cultural values and their educational institutions will be protected under Article 30 at the stage of law making. However, merely because Article 30(1) has been enacted minority educational institutions do not become immune from the operation of regulatory measures because the right to administer does not include the right to maladminister. 92. As an occupation, right to impart education is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommunity or other persons who resort to it; (c) it is directed towards maintaining excellence of education and efficiency of administration so as to prevent it from falling in standards. These tests have met the approval of Pai Foundation. 61. A clear set of distinctions emerge between educational institutions that are started and operated by minorities and non-minorities. The level of regulation that the State can impose under Clause (6) of Article 19 on the freedoms enjoyed pursuant to sub-clause (g) of Clause (1) of Article 19 by non-minority educational institutions would be greater than what could be imposed on minority institutions under Article 30(1) continuing to maintain minority status by admitting mostly students of the minority to which the minority institution claims it belongs to, except for a sprinkling of nonminority students. The critical difference in regulation that would be higher in the case of non-minority educational institutions is that they only select students from the general pool, and based on merit as determined by marks secured in qualifying examinations. The ability to choose from a smaller group within the general pool, becomes available only to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... educational institutions, only with respect to statutorily determined percentage of seats for Scheduled Caste, Scheduled Tribes, and Socially and Educationally Backward Classes as enabled by Clause (5) of Article 15 and other constitutionally permissible classes. With respect to Socially and Educationally Backward Classes, such classes can be determined only after excluding the creamy layer, as held by this Court in Ashoka Kumar Thakur. 62. To the above we need to add another dimension. In P.A. Inamdar, another fine distinction is drawn between professional and non-professional educational institutions. We now turn to paragraphs 104 and 105 of P.A. Inamdar below: 104 Article 30(1) speaks of educational institutions generally and so does Article 29(2). These articles do not draw any distinction between an educational institution dispensing theological education or professional or nonprofessional education. However, the terrain of thought as has developed through successive judicial pronouncements, culminating in Pai Foundation is that looking at the concept of education, in the backdrop of the constitutional provisions, professional educational institutions constitute a cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cational institution does not do that. The State does that, following a constitutionally mandated and permissible process. In that sense, even there it is the State which delineates the source so that the protections of Clause (1) of Article 30 indeed flow to the minorities that the State was expected to protect. Consequently, this attempt to define an equivalence between nonminorities and minorities, and then come up with the idea that minorities can choose or create a source from within the general pool, and hence the non-minorities should be free to also create their own sources has to be deemed to be illogical, and based on a weird interpretation of the Constitution and the reality on the ground. The non-minority educational institutions have the basic freedom to choose: those students who are the most meritorious as determined on the basis of marks secured in a common entrance test with respect to filling up the seats that are not covered by reservations for Scheduled Castes, Scheduled Tribes, and Socially and Educationally Backward Classes pursuant to clause (5) of Article 15. Consequently choice of students by non-minority educational institutions can only be from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mic Academy to be incorrect in presuming that there could state quotas and management quotas, we would also have to find that the 10% management quota described in clause (a) of sub-section (1) of Section 12 to be suspect. 66. With regard to the proposition that the exemptions granted to ACMS to fill up all of its seats only with wards of army personnel on account of national interest has also been noted by us. However, given the ratio of P.A. Inamdar, we are unable to grant any relief on that count. We do recognize that it may indeed be the case that army personnel, particularly those at the lower end of the hierarchy in the army, and their families, may be suffering from great hardships. It would indeed be, and ought to be a matter of considerable national distress if persons who have agreed to lay down their lives, for the sake of national security, are not extended an empathetic understanding of their needs and aspirations. However, the ratio of the judgments in TMA Pai, Islamic Academy and P.A. Inamdar, by larger benches of this Court, leaves us with no options with respect to holding that ACMS may select only those students who have scored higher marks in the common entran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h walled and divided portals of knowledge? What will become of the prayer of our national poet laureate, that knowledge be free and where the world is not broken up into fragments of narrow domestic walls? Have we set ourselves on the path to such divisiveness, at the very source of the one force that could liberate us and unite us, and make us a more egalitarian society? If we were to uphold the logic of the learned Senior Counsel appearing for the Respondents, which we cannot under the ratio of TMA Pai, and P.A. Inamdar, but under complete justice jurisprudence of Article 142, then we would have set ourselves on a slippery slope, whereby the entire field of higher education would comprise of gated communes or some new and perverse form of caste system, where existing advantages, of occupations, social and economic stature, would get ossified only within a small segment of the population. Surely, fundamental rights have been granted to the citizens, to be free and build a better society or at least refrain from actions that would create further walls of social division. VII 68. One last thing remains. 69. As we had noted earlier, the Constitutional validity of Delhi A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the basic structure. However, Bhandari J., opined that in as much as reservations would be imminent, pursuant to clause (5) of Article 15, the same ought to be tested because the content of freedoms enunciated by this Court, in TMA Pai, and P.A. Inamdar, were likely to be destroyed. It was granted that, even though this Court had held in TMA Pai, as explained in P.A. Inamdar, that imposition of reservations on nonminority unaided educational institutions to be unreasonable restrictions under clause (6) of Article 19 on the freedoms granted by sub-clause (g) of clause (1) of Article 19 to pursue the charitable occupation of starting, operating, financing, working and teaching in non-minority unaided educational institutions, the same could be subjected, by a constitutional amendment, to the provisions of clause (5) of Article 15. Nevertheless, it was reasoned that in as much as the freedoms of citizens to engage in the occupation of education was under potential threat, and further because the occupation of education was one of the activities covered by freedoms that were part of the Golden Triangle , as enunciated in Minerva Mills Ltd. V Union of India (1980) 3 SCC 625, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s suffer; (2) affect the ability of attracting and retaining good quality faculty; (3) the incentive to establish a first-rate unaided educational institution is made difficult; and (4) ultimately the global reputation of educational institutions would be damaged, it was held that freedom of educators in non-minority unaided educational institutions would have been compromised and hence abrogated. Further, it is determined that sub-clause (g) of clause (1) of Article 19 to itself be a basic feature of the Constitution, and it is further observed that: Given the dramatic effect that reservations would have on educators, the unaided institutions in which they teach, and consequently society as a whole, Article 19(1)(g) has been more than abridged .. The identity of the Constitution is altered when unreasonable restrictions make a fundamental right meaningless . Imposition of reservations on unaided institutions has abrogated Article 19(1)(g), a basic feature of the Constitution. 72. The learned Senior Counsel, Mr. Jaideep Gupta, has pressed upon us to follow the same methodology and find that clause (5) of Article 15 abrogates the basic structure of the constitution, and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urselves on the path to ineradicably alter the identity of our Constitution, damage its very purposes and the national project, and wipe out decades worth of jurisprudence with regard to the importance of Directive principles of State Policy, thereby bringing back the principles enunciated in the case of I.C. Golaknath v. State of Punjab(1967) 2 SCR 762, that none of the fundamental rights can be abridged or affected in any manner, which was set aside by this Court in Keshavananda Bharati v. State of Kerala (1973) 4 SCC 225. 74. In this regard we also opine that if we adopt the interpretation of para 151(ii) of I.R. Coelho that it mandates a rights test we would end up misinterpreting the modality of testing a Constitutional amendment on the anvil of the basic structure doctrine as enunciated by this Court in that case itself. In this regard, a basic distinction was drawn by this Court, in I.R. Coelho, as between rights test and essence of rights test, and it was stated in para 142 that: There is also a difference between the rights test and the essence of rights test. Both form part of application of the basic structure doctrine. When in a controlled Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on its own merits. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account for determining whether or not it destroys basic structure, The impact test would determine the validity of the challenge. (iii) All amendments to the Constitution made on or after 24-4-1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution as reflected in Article 21 read with Article 14, Article 19, and the principles underlying them. To put it 19 Indira Nehru Gandhi v Raj Narain, 1975 Supp SCC 1 differently even though an Act is put in the Ninth Schedule, its provisions would be open to attack on the ground that they destroy or damage the basic structure if the fundamental right or rights taken away or abrogated pertains to or pertain to the basic structure. (iv) Justification for conferring protection, not blanket protection, on the laws included in the Ninth Schedule by constitutional amendments shall be a matter of constitutional adjudication by examining the nature and extent of infraction of a fundamental right by a stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amending power inserting laws into the Ninth Schedule entails a complete removal of the fundamental rights chapter vis- -vis the laws that are added to the Ninth Schedule. Secondly, insertion in the Ninth Schedule is not controlled by any defined criteria or standards by which the exercise of power may be evaluated. The consequence of insertion is that it nullifies entire Part III of the Constitution. There is no constitutional control on such nullification .. The supremacy of the Constitution mandates all constitutional bodies to comply with the provisions of the Constitution. It also mandates a mechanism for testing the validity of legislative acts through an independent organ viz. the judiciary. Thus, it appears that what was exercising the collective mind of the Nine Judge Bench in I.R. Coelho was the breadth of protections that were being sought and placed on laws included in the Ninth Schedule: from any standards or values of the Constitution itself, including complete evisceration of Part III and judicial review. In fact this is borne out by para 103 wherein it was observed that [T]he absence of guidelines for exercise of such power means the absence of constitutional con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mic interests of the weaker sections of the population and protect them from social injustice, it was stated that access to education to be important to ensure advancement of persons belonging to Scheduled Castes, Scheduled Tribes and the Socially and Educationally Backward Classes. 79. In this regard, I.R. Coelho makes some very important observations, about the equality code and egalitarian content of fundamental rights that we opine have a direct bearing on the issues of basic structure review of clause (5) Article 15. In particular after noting that Part III has a key role to play in the application of the basic structure doctrine (para 100), the Court went on to state para 101: Regarding the status and stature in respect of fundamental rights in constitutional scheme, it is to be remembered that fundamental rights are those rights of citizens or those negative obligations of the State which do not permit encroachment on individual liberties. The state is to deny no one equality before the law. The object of fundamental rights is to foster the social revolution by creating a society egalitarian to the extent that all citizens are to be equally free from coercion or res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st these principles. If the law infringes the essence of any fundamental rights, or any other aspect of the basic structure then it will be struck down. The extent of abrogation and limit of abridgment shall have has to be examined in each case. (emph. supp.) 81. Consequently, it appears that in I.R. Coelho this Court recognized that there are different kinds of constitutional amendments. The kinds of amendments whereby laws are placed in the Ninth Schedule only enjoy a fictional immunity and they would have to be tested by using the direct impact and effect test i.e., rights test or even the essence of each fundamental right that has been deemed to be a part of the basic structure. The laws placed in the Ninth Schedule are ordinarily enacted, and then placed in Ninth Schedule by a constitutional amendment, simpliciter, and enjoy only a fictional immunity pursuant to Article 31-B. This is in contrast to the situation where a Constitutional amendment effectuates changes in the main provisions of the Constitution, particularly in Part III. In such a constitutional amendment, the essences of rights test used in M. Nagaraj, wherein the essences of the rights are identified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional amendments by which they are put in the Ninth Schedule damage or destroy the basic structure of the Constitution. This was so because post Keshavananda decision, this Court had specified that some of the fundamental rights are also a part of the basic structure because of their importance. Consequently, a direct impact and effect test i.e., rights test and essence of right i.e., the essence of the fundamental right that has been affected has to be conducted in the case of laws included in the Ninth Schedule by virtue of the constitutional amendments, simpliciter, whereas with respect to constitutional amendments of an article in the Constitution itself had to be tested in accordance with the essences of rights i.e., over-arching principles test as enunciated in M. Nagaraj. This is further borne out by sub-para (i) of paragraph 151 cited earlier when read with para 142, and taking the entire judgment in I.R. Coelho into account. 84. A few observations are merited with regard to the very carefully crafted principles laid down in the sub-para (i) of para 151 in I.R. Coelho. The first point is that a law that abrogates or abridges rights guaranteed by Part III may or ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution is not an ephemeral legal document embodying a set of rules for the passing hour . In M. Nagaraj this Court recognized that fundamental rights are not those which exist only by virtue of the State recognizing them to be so, but rather that the Constitution transcribes them as limitations on the power of the State. This would mean that not merely or solely are the negative rights to be conceived as natural, given and pre-existing, but the positive rights, which cast an obligation on the State to achieve egalitarian and social justice objectives, that behoove to the benefit of individuals and groups would also have to be recognized as natural, given and pre-existing. It is also recognized that the content of the fundamental right granted to a citizen has to be determined by the judiciary; and variations effectuated by the State have to meet the test of reasonableness as enunciated by this Court in Minerva Mills, which effectively set aside the narrow construction of A.K. Gopalan v State of Madras 1950 SCR 88 that as long as the variation and the extent of such variation of a granted fundamental right is effectuated by law it could not be questioned. However, it was also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the legislature. Only then, can it be examined whether it is so fundamental as to bind even the amending powers of Parliament i.e., to form part of the basic structure of the Constitution. This is the standard of review of constitutional amendments in the context of the doctrine of the basic structure. And further on, in para 26, the Court also recognized that the doctrine of basic structure has emanated from the German Constitution and notes that in that jurisprudence the overarching principle that connects, and informs all other values is the principle of human dignity. With respect to our Constitution it was noted that axioms like secularism, democracy, reasonableness, social justice, etc., are over-arching principles which provide linking factor for the principle of fundamental rights like Article 14, 19 and 21. These principles i.e., the over-arching principles, are beyond the amending power of Parliament. (emph. suppd.) 88. From the above we can glean that evaluation of whether a particular amendment has amended those over-arching principles is the test for basic structure. It is not the specific instances of expression of contents of a fundamental right, as stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e day. (emphasis added, para 28). 89. The prevention of destruction of the constitutional identity is the chief rationale in using the basic structure doctrine in instances of constitutional amendment such as the one we are concerned with in the instant matter. Constitutional identity, and continuance of such an identity are the primordial issues, and the identity ought not to be destroyed. Often a problem is encountered with issues of identity. The issue of change in identity, and debates about it can take extremely abstract and metaphysical form as with regards to the Ship of Theseus Plutarch: Theseus, trans. John Dryden. or the Theseus Paradox. In the classical narrative, in the metaphysical speculations about the paradox, reference is with respect to the ship in which Theseus, and other youth of Athens, returned from Crete having killed a minotaur that demanded sacrifice of Greek youth every year. Because the ship was of such importance, Athenians preserved it in the harbor for generations, replacing its boards that had become dilapidated by new ones, where at one point all the boards had been replaced. This apparently led to the fertile Greek minds, prone as they wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hip; and EQUALITY of status and opportunity; within the context of organizing our polity as a secular, socialist and a democratic republic, and the State itself, necessarily follows certain principles of policy, we would achieve those goals. We were enjoined to roam the high seas until we achieved a state of acceptable achievement of those goals, neither knowing the length of time nor the length of that journey. In fact we also knew, that achievement of those goals was never going to be a matter of some quantitative assessment of those goals, but always a maintenance of the path towards, and sustaining what we may have already achieved. We also knew that along that journey, many of the boards, and indeed even certain parts of the main structure may appear to be or actually become a detriment to our progress. Hence, we were also given liberty to change some of those parts, in terms of replacing those parts with exact same ones, or mostly similar ones, or even radically differently designed ones. The caveat was that, if the changes were such that the destination could not be reached, or that the motive force for powering the journey would become truncated, or debates could not be con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f country s governance. 95. In this regard, it was noted in M. Nagaraj that concepts like equality , representative democracy etc., are delineated over various articles. Basically Part III of the Constitution consists of equality code, the freedom code and the right to move the courts. It is true that equality has several facets. However, each case has to be seen in the context of the placement of an article which embodies the foundational value of equality. 96. Two consequences follow from the above: our earlier assessment, that the test we are to apply in instances like the addition of clause (5) to Article 15, is not about truncation of one activity that was previously deemed by this court to be one of the essential features of one of the many occupations that are a part of one of the many freedoms guaranteed in the freedom code; and that we not only have to assess the negative impact, but also the positive impact of an amendment. This follows from the realization that while we may classify aspects important for that ship to sail towards its goals into neat analytical categories, the ship itself, and the nation it carries functions in accordance with the action and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undamental instrument in country s governance. 98. Consequently, in evaluating whether the provisions of clause (5) of Article 15 with respect to unaided private educational institutions violate the basic structure doctrine the questions to carry out the test would be as follows: (1) the place of clause (5) in Article 15 in the context of the equality code; (2) its importance with respect to the Constitution as an instrument of governance, including the mandatory, though not justiciable, provisions of Directive Principles of State Policy, and the goals of ensuring dignity for all citizens, with fraternity amongst groups of them, thereby ensuring the unity and integrity of the nation; and (3) an assessment of the importance of the right of the educators to only admit students based on their choice, and thereby, also possess, the consequential right to disregard the impact of social, educational, cultural and economic disadvantages suffered by groups and individuals in those groups, in terms of access to higher education, and the damage that such a disregard might do to the very purpose of the occupation, and the broader objectives of the nation that such an occupation is to serve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent governmental regulations would not have hindered our economic progress. However, they seldom have answers as to when, or over what time frame could it be conceived that a state of equality of status and opportunity, and social, economic and political justice would inform all walks of our lives, so that each and every citizen would be enabled to lead a life with dignity, that both promotes fraternity and also is promoted by such a fraternity, and of active participation, to the fullest extent of their natural talents, to participate in full measure in the making of choices, social, political and economic. Nor do the free market proponents answer whether the operation of the laissez-faire free markets would not lead to a perpetuation of ever widening disparities between the haves and the have-nots. Historical human experience militated against a trust in any such answer even if it were given. 101. Consequently, the State was given the responsibility to balance the exigencies of the needs, between social justice and formal equality, between a command and control economy and a private sector with freedom to make its choices within a regulated environment, keeping in mind the lar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Given the magnitude of the task of the State, and immense human tragedies that could continue to occur unabated or even increase, and conditions of inequalities could intensify even further, beyond the unconscionable levels at which they already are, it can only be surmised that the power of the State to frame policies in furtherance of the national goals, including the goals of social justice, achievement of human dignity of all people and groups of people, improved access to better articulation of thoughts and aspirations by individuals and groups of people in the democratic processes and in social choices made in their communities, and equality of status and opportunity with respect to social, economic and physical resources i.e., all material resources that are useful for productive activities, as granted and used within the limits of the constitutional vision and design, to achieve such tasks to be commensurate, is indeed an essential element of governance. Derogation of such powers, through a whittling down by judicial fiat, below the level at which the Constitutional structure, provisions and vision provides would necessarily be an alteration of the very identity of our C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of our people in disadvantaged and deprived positions that could only be deemed to be egregious and unconscionable by any notions of empathetic conscience, and the imperatives that all the rest also be provided meaningful levels of protections guaranteed by fundamental rights. It is not without reason that Fundamental Rights and Directive Principles of State Policy along with the grant of power to the State to achieve intrinsic egalitarian and social justice aspects inscribed on many of the fundamental rights themselves, that have been called the twin wheels of the chariot of national progress. In this regard it has been held in Keshavananda that harmony between Directive Principles of State Policy and Fundamental Rights is one of the most important of elements of the basic features or structures of the Constitution. 105. In this respect, the placement of clause (5) of Article 15 in the equality code, by the 93rd Constitutional Amendment is of great significance. It clearly situates itself within the broad egalitarian objectives of the Constitution. In this sense, what it does is that it enlarges as opposed to truncating, an essential and indeed a primordial feature of the equal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erformance of those with much better opportunities. The fact that it is the State that seeks to enhance through its policies, such rights of disadvantaged, because it has the duty to ensure their realization, cannot be taken to mean that every element of every individual right of the less disadvantaged could be used to frustrate the realization of those rights. 106. A brief historical excursus, into our constitutional jurisprudence, would also be necessary at this stage to realize that the egalitarian conception is inbuilt in the equality code. In M.R. Balaji v State of Mysore AIR 1963 SC 649, Article 15(4) was treated as an exception to Article 15(1). However, in Devadasan v. Union of India AIR 1964 SC 179, decided a year later, the Court found that reservations to appointments and posts would not violate Article 14. Devadasan, followed the ruling of M.R. Balaji and held that excessiveness of reservations under Article 16(4) is an issue to be recognized. Subba Rao, J, in his dissenting opinion opined that Article 16(4) was not an exception but preserved a power untrammeled by the other provisions of the Article. The decisive break came in State of Kerala v. N.M. Thomas AIR 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rianism to be a part of the equality code, at the level of being essential features informing the entire equality code, per force have to also be applied to the context of private sector unaided educational institutions. When we speak of egalitarianism being an essential and a necessary component of the equality code, which is a finding that this Court arrived at in Indra Sawhney, M. Nagaraj and in Ashoka Kumar Thakur, we cannot in the same breath then turn around and say that the same concerns, of national purpose, goal and objectives that inform the constitutional identity miraculously disappear in the context of the private sector. It is indeed true that the extent of State involvement in the field of higher education has dramatically declined on account of its own financial position. At least a part of the problem of the financial situation of the State could be reasonably linked to increasing privatization and liberalization of the economy, and one of the essential elements of that process of privatization has been the demand of the private sector that the State reduce its deficits, even as tax rates were cut, by reducing its involvement in various social welfare activities. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te sector could only have existed if the State had the power to devise policies based on circumstances to promote general welfare of the country, and the larger public interest. The same cannot be taken to mean that a constitutional amendment has occurred, in a manner that fundamental alteration has occurred in the basic structure itself, whereby the State is now denuded of its obligations to pursue social justice and egalitarian ideals, inscribed as an essential part of our constitutional identity, in those areas which the State feels that even resources in the private sector would need to be used to achieve those goals. The argument that the policies of liberalization, privatization and globalization (LPG) have now cut off that power of the State are both specious, and fallacious. Such policies are only instances of the broader powers of the State to craft policies that it deems to serve broader public interests. One cannot, and ought not to deem that the ideologies of LPG have now stained the entire Constitutional fabric itself, thereby altering its very identity. 110. In the first place, it is not a completely well accepted principle that liberalization, privatization and gl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and consequences, of evisceration of the role of the State was anticipated by the farmers of our Constitution. That is the reason why, the Preamble specifically articulates that ensuring the dignity of human beings, and fraternity amongst groups of people, to be vital for the integrity and security of the nation. 111. Article 38 of the Constitution mandates that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of national life. This is a clear transcribing of a promise made in the Preamble, to all the people of our country, and in particular those who were socially disadvantaged, and who continue to be disadvantaged, that justice shall inform all institutions of our national life. What does Article 38 mean, when it talks about institutions informing our national life ? Clearly higher education, and more particularly professional educational institutions imparting education in the medical, technical engineering, scientific, managerial and legal fields, are to be recognized as being vital to the national well being, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribes . 113. The purport of Article 15 (2) can be gathered from the Constituent Assembly debates. Babasaheb Ambedkar elucidated on the same saying that To define the word shop in the most generic term one can think of is to state that shop is a place where the owner is prepared to offer his service to anybody who is prepared to go there seeking his service. . Certainly it will include anybody who offers his services. I am using it in a generic sense. I should like to point out therefore that the word shop used here is not used in the limited sense of permitting entry. It is used in the larger sense of requiring the services if the terms of service are agreed to. 39 In as much as education, pursuant to TMA Pai, is an occupation under sub-clause (g) of clause (1) of Article 19, and it is a service that is offered for a fee that takes care of all the expenses of the educational institution in rendering that service, plus a reasonable surplus, and is offered to all those amongst the general public, who are otherwise qualified, then such educational institutions would also be subject to the discipline of clause (2) of Article 15. In this regard, the purport of the above exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re severely handicapped in demonstrating their actual talents. This would be even more so in the case of Scheduled Castes and Scheduled Tribes. Given that social and educational, background of the parents, and of general community members, has an important bearing on how well the youngsters learn and advance, it would only mean that complete dependence on such tests which do not discriminate and grade, in terms of real merit relative to peers in similar circumstances, but on the basis of so called absolute abilities, we would end up selecting more students from better social and educational backgrounds, thereby foreclosing or substantially truncating the possibility of individuals in such disadvantaged groups from being able to gain access to a vital element of modern life that grants dignity to the individuals, and thereby to the group as a whole, both in this generation, and in future generations. In light of the specific command of Article 38, of infusing our institutions of national life with social justice, we hold that a proper construction of clause (2) of Article 15 would in fact be to prohibit a complete dependence on such context (social and educational backwardness) inse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial groups, and other divisions such as religion or gender. This is not just a scientifically proven fact, notwithstanding the efforts of misguided racist and junk science, but also a veritable ontological and ethical assumption. This would mean that unless this pool is expanded, to identify and provide opportunities for the best performers across all those groups, we would not have exploited our human resources as well as we could. This would in turn mean that the economic gains that were possible if the imperfections in the supply side of the labor market had been overcome, have been lost on account of such imperfections, and also would continue to be lost in the future. Sukhadeo Thorat, Aryama and Prasant Negi ( Eds.) Quest for Equal Opportunity and Growth (2007). 117. In addition to the above, we also need to be very careful about certain arguments that are raised in the context of reservations. These arguments suggest that reservations would weaken India s capacity to innovate, and retain its competitive edge in the high tech industries. It would appear that there are at least two problems associated with this. One problem seems to be the implicit assumption that those who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eds, circumstances, and cultural factors that could affect the effectiveness of the innovation in the field. Within the universal class of innovations one would also find need to innovate in a manner that meets the requirements that are specific to geographic area, particular social group or even according to the level of prior technological adaptation in particular facet of social or economic life of a community. Some technological inventions, say general technologies, may not need much of user inputs, and a one size fits all solution may be fine for most people. However, some innovations may need to be highly specific, and tailored to specific circumstances. Another layer of complexity could be visualized: innovation, particularly when it is based on specific information, that is more likely to be gained through long years of exposure to specific crafts, problems, social patterns etc. Such information tends to be sticky i.e., it is not easily specifiable and transferable, is specific to people who actually have had the relevant exposure, and may need to be addressed at the location of the problem. Further, it would also mean that unless the putative innovator actually knows w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-professional, as against the value generated from being employed in some multi-national company? Why should the Constitutional discourse undervalue the importance of the former? Are the lives of people from socially disadvantaged backgrounds to be deemed to be not a constitutional concern? The fact that the former may not be quantifiable, or in popular and elite culture not acknowledged, does not mean that they are less valuable. 120. We can conceive tremendous gains in another respect also. Increasingly, with technological advances, the choices made by societies with respect to which technology is chosen for implementation, which technology is discarded, which technology is promoted and the costs, both direct and indirect, such as environmental externalities, would have a tremendous impact on social and economic aspects, that range from global to local in impact. The implementation of such technologies has an impact on multiple constitutional rights, from Article 21 to issues of hidden bias against the lower classes. If the people in these socially and educationally backward classes, and in Scheduled Castes and Tribes are to engage in these debates, about the choices being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very one of the beneficial consequences we have discussed as being possible, would enhance the social justice content of the equality code, provide for enhancements of social and economic welfare at the lower end of the social and economic spectrum which can only behoove to the benefit of all the citizens thereby promoting the values inherent in Article 21, promote more informed, reasoned and reasonable debate by individuals belonging to various deprived segments of the population in the debates and formation of public opinion about choices being made, and the course that political and institutional constructs are taking in this country. Consequently we find that clause (5) of Article 15 strengthens the social fabric in which the Constitutional vision, goals and values could be better achieved and served. Or in terms of the analogy to Ship of Theseus, Clause (5) of Article 15 may be likened to a necessary replacement and in fact an enhancement in the equality code, so that it makes our national ship, the Constitution, more robust and stable. 123. At present, statistics Devesh Kapur Pratap Bhanu Mehta, Morgaging the Future? Indian Higher Education (2007) reveal that we just ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... access and justice, on promises made and unkept, and new promises that may take too long to fulfill, even if one were to assume that they would in fact be fulfilled. Promises are not enough to avert social catastrophes. 125. One of the things that has exercised our minds has been that in the debates in popular discourse of the elite in India it is assumed that imposition of reservations on private unaided educational institutions would have a great and deleterious impact on the freedom of educators, i.e., those who promote, operate, finance and teach in those private unaided educational institutions, to choose their own students. We hold that granting such a freedom would by itself be the actual problem. Our societal hierarchy, and in fact one of the sustaining forces of caste system, and caste like structures in even other religious groups, apart from endogamy, lack of relative vertical and occupational mobility, has been the normative assumption that only some amongst us, belonging to certain social groups, deserve to study and gain the knowledge that truly provides ability to critically evaluate and attempt to change their world. Caste system may have been many things, but it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inapposite, in the context of a Basic Structure test. Notwithstanding the fact that it is acknowledged that the Constitution can be amended in accordance with Article 368 to take away the basis of a judgment of this Court, the proposed methodology would have us adopting the view that the starting point for the evaluation of impact of clause (5) of Article 15 with respect to the basic structure would also have to accept the views expressed by this court in TMA Pai to be given and deemed to be immutable, as if carved in stone. 129. In the first place, we note that in neither of the two judgments, were features of the protections afforded to private unaided educational institutions evaluated in terms of the basic structure doctrine. Except for two references, in two paragraphs in a judgment spanning 450 paragraphs in total, TMA Pai does not speak of the basic structure doctrine at all. In paragraph 8, the said expression is mentioned, but it is a recitation of the submissions made by one of the litigants in the case. This shows that in fact the basic structure doctrine was argued by opponents of reservations as one of the grounds to deem reservations to be unconstitutional. The Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes the Basic Structure. Indeed we are acutely aware that TMA Pai, is an eleven judge bench judgment, and P.A. Inamdar to be a seven judge bench judgment. However, the very eloquent silence of the two benches as to whether the contents they have read into sub-clause (g) of clause (1) of Article 19 to constitute a basic feature of the Constitution, is itself a clear indication that this Court, in those judgments was not engaging in that type of analysis. This Court, through another constitutional bench, Islamic Academy, had also exhaustively examined the ratio in TMA Pai, and there is not even a whisper therein that there is any indication in TMA Pai, that the right of private unaided educational institutions to be free from reservations would constitute a right of such magnitude that its partial truncation would abrogate the basic structure of our Constitution and change its very identity. What TMA Pai did was essentially to engage in a reasonableness standard test based on the text of Article 19(1)(g). Nothing more. 131. This Court, in P.A. Inamdar, warns us that certain recitals, certain observations and certain findings in TMA Pai are contradictory inter se . There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rman, and in particular the following is very important: Liberal Education All education is expected to be liberal. It should free us from the shackles of ignorance, prejudice and unfounded belief. If we are incapable of achieving the good life, it is due to the faults in our inward being, to the darkness in us. The process of education is the slow conquering of this darkness. To lead us from darkness to light, to free us from every kind of domination except that of reason, is the aim of education.(emphasis supplied) This obviously implies that the darkness of ignorance, prejudice and unfounded belief, wherever it may be found, including amongst the socially and educationally disadvantaged classes, and those who have been subjected to grossly inhuman deprivations and unjust discriminations, such as Scheduled Castes and Scheduled Tribes, has to be eliminated. Not just equality, but freedom itself would lose any meaning and content, if such darkness were to pervade amongst large swaths of our people. Certainly, in as much as the word occupation comprehends within itself all incidental, as well as the main requirements of the vocation, we ought to reasonably be able to conclude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intended, when it accepted that education as an occupation could only be charitable in nature, that it would also be devoid of intrinsic and essential qualities such as love for mankind as the motivating factors in starting educational institutions. 137. However, in hierarchical societies, marked by endemic inequalities, and where hierarchy had ossified, this love of mankind , which was the primary, and inherent, motive of education as a charitable or a philanthropic occupation, was extended only to individuals who belonged to the communities to which such philanthropists belonged to. Time, knowledge, and philosophical constructs that inform our love for mankind change. Even societies in which race was used to impose horrific economic and social conditions on those who belonged to enslaved races, have changed. Great universities, such as Harvard which many decades ago did not admit students from formerly enslaved races, or women, or those with other disadvantages, have with the march of time recognized that the very notion of education as a philanthropic activity would lose its motive force, and the essentiality of its purpose, of imparting liberal education that leads people ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons, they look at not merely the marks secured at the qualifying level, or aptitude tests. They also evaluate the desirability of admitting students on the basis of recommendations of their teachers, the statements of purposes written by prospective students, and consider many other factors such as background experiences. For instance a demonstrated desire to undertake social service, or being part of activities that demonstrate an acknowledgement of social responsibility are also taken into account. There are three reasons why they do that. 139. One is that grades and marks, at the secondary level may not necessarily indicate why a youngster has scored a certain level of marks or not, thereby not being a substantially accurate measure of ability to pursue studies at the collegiate level. The second relates to expectations of universities as to how knowledge gained would be used by the wider society and its impact on society. Those multiple other means provides them, obviously not perfectly, but a more granulated and textured view about the background of the youngster, the particular circumstances under which the youngster was expected to study, and yet achieved what he or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the dark and forgotten past, out of love for humanity. To attempt to convert that knowledge into gated communities of exclusion would be to sow the seeds of destruction of humanity. Non-minority educational institutions claim that they ought to have the right to choose only those who have demonstrated a certain level of proficiency in tests, where the differences between those who get selected and those who are discarded may be insignificant, or do not take into account the impact of differences in social and educational backgrounds on the performances in those tests. They also claim the right to be free from any state based imposition of reservations, thereby denying any social responsibility in ensuring that those who are the best within the socially and educationally backward classes, and Scheduled Castes and Scheduled Tribes. To claim a right to distribute it only to a few, who are selected on the basis of tests which do not reveal the true talents spread across diverse groups, and communities in this country, is to destroy the very foundation by which such non-minority educational institutions are given access to knowledge. To partake of knowledge, from the common pool, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on t expect all of our students, who graduate from our colleges to go and join the global society, whatever such a construct might mean. We obviously expect most or many of them to live and work in India. To not build the right scholastic environment, in which there is a diversity in the student body, reflecting the diversities of India, would be a fraud that our educational institutions would be perpetrating. Further, if one posits that national barriers are breaking down, and that we are all a part of some amorphous global village , based on knowledge economy, to deny access to the best amongst various social groups in India, would be an act that destroys their prospects of living in such a global society. Either way, to allow that to happen by granting access to higher education solely or mostly to the privileged segments of our population would be to invite a cultural genocide. 143. It is not without reason that one of the great educationists of the World, Paulo Freire, characterized education as Cultural Action For Freedom. Harvard Educational Review (2000). It is an activity that all societies, and human cultures, undertake to enable their children to be free from ign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al fact, is not a given destiny but the result of an unjust order that engenders violence in the oppressors, which in turn dehumanizes the oppressed. Elsewhere, that great scholar continues: Because it is a distortion of being more fully human, sooner or later being less human leads the oppressed to struggle against those who made them so. In order for this struggle to have meaning, the oppressed must not, in seeking to regain their humanity (which is a way to create it) become in turn oppressors of the oppressors, but rather restorers of the humanity of both. This, then, is the great humanistic and historical task of the oppressed: to liberate themselves and their oppressors as well. The oppressors, who oppress, exploit, and rape by virtue of their power, cannot find in this power the strength to liberate either the oppressed or themselves. Only power that springs from the weakness of the oppressed will sufficiently be strong to free both. Any attempt to soften the power of the oppressor in deference to the weakness of the oppressed almost always manifests itself in the form of false generosity; indeed, the attempt never goes beyond this. In order to have continued o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Constitution is based on an ontology of humanism. It is based on the recognition of the dehumanization of vast swaths of our people in a hierarchical society. It is based on the acknowledgment of the truth that as long as endemic inequalities remain entrenched, the cultural constructs of the inherited notions of hierarchy and of social worth based on social status would not disappear, and further intensify the conditions of dehumanized existence of all human beings, irrespective of their stature. The disadvantaged are obviously brutalized and dehumanized, by the very structure in which they are compelled to live in. If the masses of India were to start believing, which thankfully they do not, and hopefully will not in the future, that their dehumanized condition is immutable, then also the ship of our constitution would have lost its way. If they conclude, that dehumanization is the only normal order based on what some keep propagating, and then further conclude that the only way out for them would be to violently revolt and oppress the oppressor, the ship would sink. 146. Education is one of the principal human activities to establish a humanized order in our country. Its ont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be constitutionally valid. VIII CONCLUSIONS: A) The Delhi Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-Exploitative Fee And Other Measures to Ensure Equity And Excellence) Act, 2007 (Delhi Act 80 of 2007) or any provisions thereof do not suffer from any constitutional infirmities. The validity of the Delhi Act 80 of 2007, and its provisions, are accordingly upheld. B) The Notification dated 14-08-2008 issued by the Government of National Capital Territory of Delhi permitting the Army College of Medical Sciences, Delhi Cantonment, Delhi to allocate hundred percent seats in the said college for admission towards of Army personnel in accordance with the policy followed by the Indian Army is ultra vires the provisions of Delhi Act 80 of 2007 and also unconstitutional. The same is accordingly set aside. C) The admission procedures devised by Army College of Medical Sciences, Delhi Cantonment, Delhi for admitting the students in the first year MBBS course from a pre-defined source, carved out by itself and its parent society, are illegal and ultra vires the provisions of the Delhi Act 80 of 2007. D) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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