TMI Blog2020 (4) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... t where the rational basis for intrusion exists. The Constitution provides a limitation on the power of the State to interfere with life, liberty, and rights, however, the concept of limited government cannot be extended to a level when it defeats the very national interest. The maladies with which professional education suffers in this country are writ large. The regulatory framework created by the MCI/DCI is concomitant of conditions, affiliation and recognition, and providing central examination in the form of NEET cannot be said to be violative of the rights Under Articles 19(1)(g) and 30. The regulatory framework is not restrictive, but caters to the effective enjoyment of the rights conferred under the aforesaid provisions. The prescription of NEET is definitely in order to improve the medical education, co-related to the improvement of public health, thus, it is a step-in furtherance of the duty of the State enshrined in the Directive Principles of the State Policy contained in Article 47 of the Constitution of India. Similarly, Article 46 aims at promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes, and other weaker sections. By prescript ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erit and aspiration of the common incumbent with no means, the State has the right to frame regulatory regime for aided/unaided minority/private institutions as mandated by Directives Principles, Articles 14 and 21 of the Constitution. In St. Stephen's College v. University of Delhi [ 1991 (12) TMI 276 - SUPREME COURT] , it was held that there has to be balancing of interest of rights of minorities. It was observed that 50% of the annual admission has to be given to the members of communities other than the minority community on the basis of merit. Regulations that serve the interest in standards of education amongst the recognised institutions could validly be made. Such general patterns and standards are the need, and such Regulation shall not have the effect of depriving the right of minorities to educate their children in their own institution. The uniform Entrance Examination cannot be said to be unreasonable regulatory framework. Considering the terms and conditions for affiliation and recognition for professional medical and such other professional courses are binding, and no relaxation can be permitted in the conditions - rights Under Articles 19(1)(g) and 30 read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MISHRA, VINEET SARAN AND M.R. SHAH, JJ. For Appearing Parties : Vikas Singh, R. Venkataramani, Jayanth Muth Raj, Sr. Advs., Gaurav Sharma, Dhawal Mohan, Prateek Bhatia, Deepika Kalia, V.G. Pragasam, Prabu Ramasubramanian, S. Manuraj, Yashraj Singh Bundela, Praveen Vignesh, M. Yogesh Kanna, S. Raja Rajeshwaran, Karthik Rajendran, Uma Prasuna Bachu, Rohit Rathi, Sheena Taqui, Bina Gupta, Kshitij Vaibhav, K.S.T. Thambi Pillai, Hitesh Kumar Sharma, Akhileshwar Jha, Miria Jasmin, Samrat Shinde, Sachin Patil, Anil Kumar Mishra, Idrish Mohammed, Supantha Sinha, A.K. Mishra, G.N. Reddy, T. Vijaya Bhaskar Reddy, A.P. Mayee, A. Rajarajan, Rupesh Kumar, Pankhuri Shrivastava, Rajeev Sharma, Neelam Sharma, V.N. Raghupathy, Manendra Pal Gupta, Md. Apzal Ansari, Amol Chitale, Pragya Baghel, P.V. Dinesh, Sindhu T.P., Bineesh K., Mukund P. Unny, Ashwini Kumar Singh, Advs., India Law, Sheffali Chaudhary, Vipasha Singh, Sushil Balwada, Ramesh Allanki, Syed Ahmad Naqvi, Savita Devi, N.V.R.S.S.S. Vara Prasad, Aruna Gupta, Ganni Krishna, R. Radha Krishna, Shilp Gupta, C.S.N. Mohan Rao, Anil Kumar Mishra-I, Shivaji M. Jadhav, Ashwarya Sinha, Ravindra Keshavrao Adsure, Dharmendra Kumar Sinha, Ramesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um-Entrance Test for admission to MBBS course' in each academic year. The overall superintendence, direction, and control of the National Eligibility-cum-Entrance Test shall vest with the Medical Council of India. However, the Medical Council of India, with the previous approval of the Central Government, shall select organisation(s) to conduct 'National Eligibility-cum-Entrance Test for admission to MBBS course. (ii) In order to be eligible for admission to MBBS course for a particular academic year, it shall be necessary for a candidate to obtain minimum of 50% (fifty percent) marks in each paper of National Eligibility-cum-Entrance Test held for the said academic year. However, in respect of candidates belonging to the Scheduled Castes, the Scheduled Tribes, and the Other Backward Classes, the minimum percentage shall be 40% (forty percent) in each paper, and in respect of candidates with locomotory disability of lower limbs, the minimum percentage marks shall be 45% (forty-five percent) in each paper of National Eligibility-cum-Entrance Test: Provided when sufficient number of candidates belonging to respective categories fail to secure minimum marks as prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... each academic year. The overall superintendence, direction and control of National Eligibility-cum-Entrance Test shall vest with Medical Council of India. However, the Medical Council of India, with the previous approval of the Central Government shall select organisation(s) to conduct National Eligibility-cum-Entrance Test for admission to Postgraduate courses. 4. Similar notifications were issued by DCI providing for procedure for selection of candidates for MBBS Course and Post-graduate Course and also for BDS and MDS. Thus, National Eligibility-cum-Entrance Test (for short, 'the NEET') for admission to the MBBS course and the Post-graduate course and similarly for BDS and MDS came to be introduced. Now the statutory provisions Under Section 10D of the Act of 1956 providing for uniform entrance examination for undergraduate and post-graduate level which came into force on 24.5.2016. Section 10D is extracted hereunder: 10D. Uniform entrance examination for undergraduate and post-graduate level .-- There shall be conducted a uniform entrance examination to all medical educational institutions at the undergraduate level and post-graduate level through such designate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e National Eligibility Entrance Test, and he/she shall not be allowed to appear for the National Eligibility-Cum-Entrance Test until: (1) He/she shall complete the age of 17 years on or before 31st December of the year of admission to the MBBS. (1A) He/She has obtained a minimum of marks in National Eligibility-Cum-Entrance Test as prescribed in Clause 5 of Chapter II. In Chapter II, Clause 5 under the heading Procedure for selection to MBBS has been substituted by MCI in 2017 as under: 7. In Chapter-II, Clause 5 under the heading Procedure for selection to MBBS course shall be as follows shall be substituted as under: Procedure for selection to MBBS course shall be as follows: (1) There shall be a uniform entrance examination to all medical educational institutions at the under graduate level namely 'National Eligibility-cum-Entrance Test for admission to MBBS course in each academic year and shall be conducted under overall supervision of the Ministry of Health Family Welfare, Government of India. (2) The designated authority to conduct the 'National Eligibility-Cum-Entrance Test' shall be the Central Board of Secondary Education or any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the said academic year. (7) No authority/institution shall admit any candidate to the MBBS course in contravention of the criteria/procedure as laid down by these Regulations and/or in violation of the judgments passed by the Hon'ble Supreme Court in respect of admissions. Any candidate admitted in contravention/violation of aforesaid shall be discharged by the Council forthwith. The authority/institution which grants admission to any student in contravention/violation of the Regulations and/or the judgments passed by the Hon'ble Supreme Court, shall also be liable to face such action as may be prescribed by the Council, including surrender of seats equivalent to the extent of such admission made from its sanctioned intake capacity for the succeeding academic year/years. (8) All admission to MBBS course within the respective categories shall be based solely on the marks obtained in the 'National Eligibility-Cum-Entrance Test. 6. Initially, the matters filed in 2012-2013 were heard by a Bench of three Judges, and the matters were decided vide judgment and order dated 18.7.2013. As per the majority opinion, the petitions were allowed. The notifications issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution of India and there is an inherent limitation on the State's involvement in matters of admissions of students. The NEET prescribes no alternative to the institution, impinges upon the fundamental rights of an unaided minority institution to establish and administer educational institution of their choice. 10. It was further urged on behalf of Petitioners that State has no power to compel an unaided minority institution to admit students through a single centralized national examination such as NEET. The unaided minority professional colleges have the fundamental rights to choose the method and manner in which to admit its students, subject to satisfying the triple test of having a fair, transparent, and non-exploitative process. 11. It was also argued on behalf of Petitioners that they have a time-tested admission procedure without any complaints. Their process is fair and transparent, and they have a fundamental right to protect autonomy and reputation by continuing to admit students using their admission process. The NEET cannot be the only parameter to determine the merit of a student. Some of the institutions are providing best medical professional by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e specialised institutions, they are not getting good doctors to take care of patients, for example, in the Oncology Department. Some of the candidates are not able to bear the burden of the procedure and have expressed their inability to go with very sick patients. Some of them were not able to undertake procedures in a sterile manner to avoid infections. Similar is the position in other super-speciality departments. There are complaints of lack of clinical competence among students admitted to speciality courses like general medicine. 14. The Petitioners further submitted that they have a fundamental right to admit students of their own choice Under Article 30 of the Constitution. It is submitted that the admission procedure adopted by them passes the triple test, i.e., fair, transparent, and non-exploitative. Various orders were passed by this Court recognising fair method adopted in individual institutions while admitting students through their admission procedure as apparent from interim orders passed in the years 1993, 1994, 1995, and 1998. 15. This Court on 28.4.2016 passed an order in Sankalp Charitable Trust and Anr. v. Union of India and Ors., (Writ Petition (C) No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Modern Dental College and Research Centre (supra) and P.A. Inamdar (supra). It was also argued that Section 10D has been inserted in the Act of 1956 it provides that there shall be a uniform common entrance conducted by the designated authority. The main reasoning of this Court in Christian Medical College Vellore v. Union of India, (2014) 2 SCC 305, which decision has been recalled, was that uniform common entrance examination could not be introduced by way of subordinate legislation and under the Act of 1956 and MCI had no power to conduct the said examination. After the introduction of Section 10D, both the said lacunas have been plugged. The introduction of NEET is constitutionally valid. In Modern Dental College and Research Centre (supra), the Court considered the question of conduct of examination by private medical colleges in the State of Madhya Pradesh for admitting students in their colleges. In State of Madhya Pradesh v. Jainarayan Chouksey and Ors., (2016) 9 SCC 412, while deciding the contempt petition it was observed that judgment dated 2.5.2016 passed in the case of Modern Dental College and Research Centre (supra), held that admission should be made through a centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... achers in Government and aided schools. The Court opined that minority cannot ask for the aid or recognition for an educational institution without competent teachers and fair standards. The choice does not necessarily militate against the claim of the State to insist on reasonable Regulations to ensure the excellence of the institutions to be aided or even recognized. The Court held thus: (29) Their grievances are thus stated: The gist of the right of administration of a school is the power of appointment, control, and dismissal of teachers and other staff. But under the said Bill such power of management is practically taken away. Thus the manager must submit annual statements (Clause 5). The fixed assets of the aided schools are frozen and cannot be dealt with except with the permission of the authorised officer (Clause 6). No educational agency of an aided school can appoint a manager of its choice and the manager is completely under the control of the authorised officer, for he must keep accounts in the manner he is told to do and to give periodical inspection of them and on the closure of the school the accounts must be made over to the authorised officer (Clause 7). All f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the management of aided schools. Some of these provisions, e.g., 7, 10, 11(1), 12(1)(2)(3) and (5) may easily be regarded as reasonable Regulations or conditions for the grant of aid. Clauses 9, 11(2) and 12(4) are, however, objected to as going much beyond the permissible limit. It is said that by taking over the collections of fees etc., and by undertaking to pay the salaries of the teachers and other staff the Government is in reality confiscating the school fund and taking away the prestige of the school, for none will care for the school authority. Likewise Clause 11 takes away an obvious item of management, for the manager cannot appoint any teacher at all except out of the panel to be prepared by the Public Service Commission which, apart from the question of its power of taking up such duties, may not be qualified at all to select teachers who will be acceptable to religious denominations and in particular Sub-clause (2) of that Clause is objectionable for it thrusts upon educational institutions of religious minorities teachers of Scheduled Castes who may have no knowledge of the tenets of their religion and may be otherwise weak educationally. Power of dismissal, remova ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section thereof. Regulation made in the real interests of efficiency of instruction, discipline, health, sanitation, morality, public order, and the like may undoubtedly be imposed. Such Regulations are not restrictive on the substance of the right, which is guaranteed, they secure the proper functioning of the institution in the matter of education. It was also observed that Regulation must satisfy a dual test-the test of reasonableness and that it is regulative of the educational character of the institution and is conducive to making the institution a capable vehicle of education for the minority community or other persons who resort to it. In Rev. Father W. Proost and Ors. v. State of Bihar and Ors. AIR 1969 SC 465, the Court observed thus: 8. In our opinion, the width of Article 30(1) cannot be cut down by introducing in it considerations on which Article 29(1) is based. The latter Article is a general protection which is given to minorities to conserve their language, script, or culture. The former is a special right to minorities to establish educational institutions of their choice. This choice is not limited to institution seeking to conserve language, script, or cultu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es are necessary for maintaining the educational character and content of minority institutions, similarly, regulatory measures are necessary for ensuring orderly, efficient, and sound administration. Das, C.J., in the Kerala Education Bill case (supra) 1959 SCR 995 : AIR 1958 SC 956, summed up in one sentence the true meaning of the right to administer by saying that the right to administer is not the right to mal-administer. 30. Educational institutions are temples of learning. The virtues of human intelligence are mastered and harmonised by education. Where there is complete harmony between the teacher and the taught, where the teacher imparts and the student receives, where there is complete dedication of the teacher and the taught in learning, where there is discipline between the teacher and the taught, where both are worshippers of learning, no discord or challenge will arise. An educational institution runs smoothly when the teacher and the taught are engaged in the common ideal of pursuit of knowledge. It is, therefore, manifest that the appointment of teachers is an important part in educational institutions. The qualifications and the character of the teachers are rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of reasonable Regulations in respect of those institutions. The Regulations have necessarily to be made in the interest of the institution as a minority educational institution. They have to be so designed as to make it an effective vehicle for imparting education. The right to administer educational institutions can plainly not include the right to maladminister. Regulations can be made to prevent the housing of an educational institution in unhealthy surroundings as also to prevent the setting up or continuation of an educational institution without qualified teachers. The State can prescribe Regulations to ensure the excellence of the institution. Prescription of standards for educational institutions does not militate against the right of the minority to administer the institutions. Regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order, and the like may undoubtedly be imposed. Such Regulations are not restrictions on the substance of the right, which is guaranteed: they secure the proper functioning of the institution, in matters educational [see observations of Shah, J. in Rev. Sidhajbhai Sabhai (supra), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve vehicle of education for the minority community or other persons who resort to it. 94. If a request is made for the affiliation or recognition of an educational institution, it is implicit in the request that the educational institution would abide by the Regulations which are made by the authority granting affiliation or recognition. The said authority can always prescribe Regulations and insist that they should be complied with before it would grant affiliation or recognition to an educational institution. To deny the power of making Regulations to the authority concerned would result in robbing the concept of affiliation or recognition of its real essence. No institution can claim affiliation or recognition until it conforms to a certain standard. The fact that the institution is of the prescribed standard indeed inheres in the very concept of affiliation or recognition. It is, therefore, permissible for the authority concerned to prescribe Regulations which must be complied with before an institution can seek and retain affiliation and recognition. Question then arises whether there is any limitation on the prescription of Regulations for minority educational institutions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s recognition or affiliation, an educational institution conducted by a religious minority is granted aid, further Regulations for ensuring that the aid is utilized for the purpose for which it is granted will be permissible. The heart of the matter is that no educational institution established by a religious or linguistic minority can claim total immunity from Regulations by the legislature or the university if it wants affiliation or recognition, but the character of the permissible Regulations must depend upon their purpose. As we said, such Regulations will be permissible if they are relevant to the purpose of securing or promoting the object of recognition or affiliation. There will be borderline cases where it is difficult to decide whether a Regulation really subserves the purpose of recognition or affiliation. But that does not affect the question of principle. In every case, when the reasonableness of a Regulation comes up for consideration before the Court, the question to be asked and answered is whether the Regulation is calculated to subserve or will in effect subserve the purpose of recognition or affiliation, namely, the excellence of the institution as a vehicle fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g it. If it is part of a minority's rights to make such a choice, it should also be part of its obligations, which necessarily follow from the choice to adhere to the general pattern. The logical basis of such a choice is that the particular minority Institution, which chooses to impart such general secular education, prefers that higher range of freedom where, according to the poet Rabindranath Tagore, the narrow domestic walls which constitute barriers between various Sections of the nation will crumble and fall. It may refuse to accept the choice made by the State of the kind of secular education the State wants or of the way in which it should be given. But, in that event, should it not be prepared to forego the benefits of recognition by the State? The State is bound to permit and protect the choice of the minority Institution, whatever that might be. But, can it be compelled to give it a treatment different from that given to other Institutions making such a choice? 221. Evidently, what was meant was that the right to exclusive management of the institution is separable from the right to determine the character of education and its standards. This may explain why st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who are not members of the particular minority concerned, and when it derives large parts of its income from the fees paid by those who are not members of the particular minority in question. Such greater degree of control could be justified by the need to secure the interests of those who are affected by the management of the minority institution and the education it imparts but who are not members of the minority in management. In other words, the degree of reasonably permissible control must vary from situation to situation. For the reasons already given above, I think that, apart from Sections 5, 40 and 41 of the Act, which directly and unreasonably impinge upon the rights of the petitioning minority managed college, protected by Article 30(1) of the Constitution, I do not think that the other provisions have that effect. On the situation under consideration before us, the minority institution affected by the enactment has, upon the claims put forward on its behalf, a means of escape from the impugned provisions other than Sections 5, 40 and 41 of the Act by resorting to Section 38B of the Act. 23. In The Gandhi Faiz-e-am College, Shahjahanpur v. University of Agra and Anr., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, contentment and decent living standards to teachers and which will consequently enable them to render better service to the institution and the pupils cannot surely be said to be violative of the fundamental right guaranteed by Article 30(1) of the Constitution. The management of a minority Educational Institution cannot be permitted under the guise of the fundamental right guaranteed by Article 30(1) of the Constitution, to oppress or exploit its employees any more than any other private employee. Oppression or exploitation of the teaching staff of an educational institution is bound to lead, inevitably, to discontent and deterioration of the standard of instruction imparted in the institution affecting adversely the object of making the institution an effective vehicle of education for the minority community or other persons who resort to it. The management of minority institution cannot complain of invasion of the fundamental right to administer the institution when it denies the members of its staff the opportunity to achieve the very object of Article 30(1) which is to make the institution an effective vehicle of education. 25. In Bihar State Madarasa Education Board, Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 7(2)(n) is clearly violative of constitutional right of minorities Under Article 30(1) of the Constitution insofar as it provides for dissolution of Managing Committee of a Madarasa. We agree with the view taken by the High Court. 26. In St. Stephen's College v. University of Delhi, (1992) 1 SCC 558, concerning admission process adopted by aided minority institutions, various questions were raised thus: 41. It was contended that St. Stephen's College after being affiliated to the Delhi University has lost its minority character. The argument was based on some of the provisions in the Delhi University Act and the Ordinances made thereunder. It was said that the students are admitted to the University and not to the College as such. But we find no substance in the contention. In the first place, it may be stated that the State or any instrumentality of the State cannot deprive the character of the institution, founded by a minority community by compulsory affiliation since Article 30(1) is a special right to minorities to establish educational institutions of their choice. The minority institution has a distinct identity and the right to administer with continua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not think it in their interest to send their children to the Muslim girls school run by the other minority community. The withholding of permission for admission of girl students in the boys minority school was violative of Article 30(1). It was also observed that the Rule sanctioning such refusal of permission crosses the barrier of regulatory measures and comes in the region of interference with the administration of the institution, a right which is guaranteed to the minority Under Article 30(1). The Court restricted the operation of the Rule and made it inapplicable to the minority educational institution. In Director of School Education, Government of T.N. v. Rev. Brother G. Arogiasamy AIR 1971 Mad 440, the Madras High Court had an occasion to consider the validity of an uniform procedure prescribed by the State Government for admission of candidates to the aided training schools. The government directed that the candidates should be selected by the school authorities by interviewing every candidate eligible for admission and assessing and awarding marks in the interview. The marks awarded to each candidate in the interview will be added to the marks secured by the candidate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench of five Judges of this Court had an occasion to consider the admission process adopted by two aided minority institutions viz. St. Stephen's College at Delhi and Allahabad Agricultural Institute at Naini. The factual context as summed-up in the majority judgment authored by Shetty, J., was as under: 68. It is not in dispute that St. Stephen's College and Allahabad Agricultural Institute are receiving grant-in-aid from the government. St. Stephen's College gives preference to Christian students. The Allahabad Agricultural Institute reserves 50 per cent of the seats for Christian students. The Christian students admitted by preference or against the quota reserved are having less merit in the qualifying examination than the other candidates. The other candidates with more merit are denied admission on the ground that they are not Christians. 69. It was argued for the University and the Students Union that since both the institutions are receiving State aid, the institutional preference for admission based on religion is violative of Article 29(2) of the Constitution. The institutions shall not prefer or deny admission to candidates on ground of religion. For i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beliefs of others. It is essential therefore, that there should be proper mix of students of different communities in all educational institutions. *** 28.3. The majority Judgment, then, considered the matter from the perspective of Rights of Minorities and Balancing Interest and observed: 101. Laws carving out the rights of minorities in Article 30(1) however, must not be arbitrary, invidious or unjustified; they must have a reasonable relation between the aim and the means employed. The individual rights will necessarily have to be balanced with competing minority interests. In Sidhajbhai case (1963) 3 SCR 837 the government order directing the minority run college to reserve 80 per cent of seats for government nominees and permitting only 20 per cent of seats for the management with a threat to withhold the grant-in-aid and recognition was struck down by the Court as infringing the fundamental freedom guaranteed by Article 30(1). Attention may also be drawn to Article 337 of the Constitution which provided a special concession to Anglo-Indian community for ten years from the commencement of the Constitution. Unlike Article 30(2) it conferred a positive right on the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , shall not have the effect of depriving the right of minorities to educate their children in their own institution. That is a privilege which is implied in the right conferred by Article 30(1). 28.5. The dissenting opinion of Kasliwal, J. quoted a passage from the Constituent Assembly Debates (CAD) touching upon the matter in issue as under: 137. These were Articles 23(1) on the one hand and 23(3)(a) and 23(3)(b) on the other hand in the Draft Constitution. Firstly, Dr. B.R. Ambedkar said in relation to draft Article 23(2) corresponding to the present Article 28 of the Constitution that even in relation to Articles 30 and 29 the State was completely free to give or not to give aid to the educational institutions of the religious or linguistic minorities. He said: Now, with regard to the second Clause I think it has not been sufficiently well understood. We have tried to reconcile the claim of a community which has started educational institutions for the advancement of its own children either in education or in cultural matters, to permit to give religious instruction in such institutions; notwithstanding the fact that it receives certain aid from the State. The State, of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llahabad Agricultural Institute are not entitled to claim any preferential right or reservation in favour of students of Christian community as they are getting grant-in-aid and as such I do not consider it necessary to labour any more on the question of deciding as to what percentage can be considered as reasonable. The Court held that the choice of institution does not mean that the minorities could establish educational institution for the benefit of their own community people. In Re The Kerala Education Bill (supra), it was considered and observed that the minorities cannot establish educational institution only for the benefit of their community. Every educational institution, irrespective of community to which it belongs, is a 'melting pot' in our national life and that there should be mixing up of students of different communities in all educational institutions. The intake for the community cannot exceed 50% of the annual admission, which is to be provided to other than the minority community. The admission should be made purely on the basis of merit. 27. In T.M.A. Pai Foundation (supra), decided by Bench of 11 Judges of the Court, on consideration of the righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the right of administration of a private unaided educational institution can neither be called fair nor reasonable. Even in the decision in Unni Krishnan case it has been observed by Jeevan Reddy, J., at p. 749, para 194, as follows: 194. The hard reality that emerges is that private educational institutions are a necessity in the present-day context. It is not possible to do without them because the governments are in no position to meet the demand -- particularly in the sector of medical and technical education which call for substantial outlays. While education is one of the most important functions of the Indian State it has no monopoly therein. Private educational institutions -- including minority educational institutions -- too have a role to play. 40. Any system of student selection would be unreasonable if it deprives the private unaided institution of the right of rational selection, which it devised for itself, subject to the minimum qualification that may be prescribed and to some system of computing the equivalence between different kinds of qualifications, like a common entrance test. Such a system of selection can involve both written and oral tests for sele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omy of the private unaided educational institution. 68. It would be unfair to apply the same Rules and Regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forego or discard the principle of merit. It would, therefore, be permissible for the university or the Government, at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while, at the same time, giving the management sufficient discretion in admitting students. This can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the management out of those students who have passed the common entrance test held by itself or by the State/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 do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther based on religion or language, to establish and administer educational institutions in any manner they desire, and without being obliged to comply with the provisions of any law? Does Article 30(1) give the religious or linguistic minorities a right to establish an educational institution that propagates religious or racial bigotry or ill will amongst the people? Can the right Under Article 30(1) be so exercised that it is opposed to public morality or health? In the exercise of its right, would the minority while establishing educational institutions not be bound by town planning Rules and Regulations? Can they construct and maintain buildings in any manner they desire without complying with the provisions of the building bye-laws or health Regulations? 105. In Rev. Sidhajbhai Sabhai v. State of Bombay, (1963) 3 SCR 837, this Court had to consider the validity of an order issued by the Government of Bombay whereby from the academic year 1955-56, 80% of the seats in the training colleges for teachers in non-government training colleges were to be reserved for the teachers nominated by the Government. The Petitioners, who belonged to the minority community, were, inter alia, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be laid down in Kerala Education Bill, 1957 case, 1959 SCR 995 and, therefore, it was held in Sidhajbhai Sabhai case, (1963) 3 SCR 837 that the opinion in that case was not an authority for the proposition that all regulative measures, which were not destructive or annihilative of the character of the institution established by the minority, provided the Regulations were in the national or public interest, were valid. In this connection it was further held at SCR pp. 856-57, as follows: The right established by Article 30(1) is a fundamental right declared in terms absolute. Unlike the fundamental freedoms guaranteed by Article 19, it is not subject to reasonable restrictions. It is intended to be a real right for the protection of the minorities in the matter of setting up of educational institutions of their own choice. The right is intended to be effective and is not to be whittled down by so-called regulative measures conceived in the interest not of the minority educational institution, but of the public or the nation as a whole. If every order which while maintaining the formal character of a minority institution destroys the power of administration is held justifiable be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them , Khanna, J. then examined Article 30, and observed at SCR p. 222, as follows: (SCC p. 770, para 74) 74. Clause (1) of Article 30 gives right to all minorities, whether based on religion or language, to establish and administer educational institutions of their choice. Analysing that Clause it would follow that the right which has been conferred by the Clause is on two types of minorities. Those minorities may be based either on religion or on language. The right conferred upon the said minorities is to establish and administer educational institutions of their choice. The word 'establish' indicates the right to bring into existence, while the right to administer an institution means the right to effectively manage and conduct the affairs of the institution. Administration connotes management of the affairs of the institution. The management must be free of control so that the founders or their nominees can mould the institution as they think fit and in accordance with their ideas of how the interest of the community in general and the instituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal institutions is a fundamental right enshrined in the Constitution. The same generous, liberal and sympathetic approach should weigh with the courts in construing Articles 29 and 30 as marked the deliberations of the Constitution-makers in drafting those articles and making them part of the fundamental rights. The safeguarding of the interest of the minorities amongst Sections of population is as important as the protection of the interest amongst individuals of persons who are below the age of majority or are otherwise suffering from some kind of infirmity. The Constitution and the laws made by civilized nations, therefore, generally contain provisions for the protection of those interests. It can, indeed, be said to be an index of the level of civilization and catholicity of a nation as to how far their minorities feel secure and are not subject to any discrimination or suppression. 122. The learned Judge then observed that the right of the minorities to administer educational institutions did not prevent the making of reasonable Regulations in respect of these institutions. Recognizing that the right to administer educational institutions could not include the right to ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed, removed or reduced in rank without the previous sanction of the authorized officer. At SCR p. 245, Khanna, J., observed that in cases subsequent to the opinion in Kerala Education Bill, 1957 case, (1959) SCR 995 this Court had held similar provisions as Clause 11 and Clause 12 to be violative of Article 30(1) of the minority institutions. He then observed as follows: (SCC p. 792, para 109). The opinion expressed by this Court in Re Kerala Education Bill, 1957, 1959 SCR 995, was of an advisory character and though great weight should be attached to it because of its persuasive value, the said opinion cannot override the opinion subsequently expressed by this Court in contested cases. It is the law declared by this Court in the subsequent contested cases which would have a binding effect. The words 'as at present advised' as well as the preceding sentence indicate that the view expressed by this Court in Re Kerala Education Bill, 1957 in this respect was hesitant and tentative and not a final view in the matter. 135. We agree with the contention of the learned Solicitor-General that the Constitution in Part III does not contain or give any absolute right. Al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch rights. No law can be framed that will discriminate against such minorities with regard to the establishment and administration of educational institutions vis-a-vis other educational institutions. Any law or Rule or Regulation that would put the educational institutions run by the minorities at a disadvantage when compared to the institutions run by the others will have to be struck down. At the same time, there also cannot be any reverse discrimination. It was observed in St. Xavier's College case, (1975) 1 SCR 173 at SCR p. 192 that: (SCC p. 743, para 9) The whole object of conferring the right on minorities Under Article 30 is to ensure that there will be equality between the majority and the minority. If the minorities do not have such special protection they will be denied equality. In other words, the essence of Article 30(1) is to ensure equal treatment between the majority and the minority institutions. No one type or category of institution should be disfavoured or, for that matter, receive more favourable treatment than another. Laws of the land, including Rules and Regulations, must apply equally to the majority institutions as well as to the minority inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined by the State or receiving aid out of State funds. It was strenuously contended that the right to give admission is one of the essential ingredients of the right to administer conferred on the religious or linguistic minority, and that this right should not be curtailed in any manner. It is difficult to accept this contention. If Articles 28(1) and (3) apply to a minority institution that receives aid out of State funds, there is nothing in the language of Article 30 that would make the provisions of Article 29(2) inapplicable. Like Article 28(1) and Article 28(3), Article 29(2) refers to any educational institution maintained by the State or receiving aid out of State funds . A minority institution would fall within the ambit of Article 29(2) in the same manner in which Article 28(1) and Article 28(3) would be applicable to an aided minority institution. It is true that one of the rights to administer an educational institution is to grant admission to the students. As long as an educational institution, whether belonging to the minority or the majority community, does not receive aid, it would, in our opinion, be its right and discretion to grant admission to such students a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ephen's which has held the field for over a decade, we have compelling reservations in accepting the rigid percentage stipulated therein. As Article 29 and Article 30 apply not only to institutions of higher education but also to schools, a ceiling of 50% would not be proper. It will be more appropriate that, depending upon the level of the institution, whether it be a primary or secondary or high school or a college, professional or otherwise, and on the population and educational needs of the area in which the institution is to be located, the State properly balances the interests of all by providing for such a percentage of students of the minority community to be admitted, so as to adequately serve the interest of the community for which the institution was established. 152. At the same time, the admissions to aided institutions, whether awarded to minority or non-minority students, cannot be at the absolute sweet will and pleasure of the management of minority educational institutions. As the Regulations to promote academic excellence and standards do not encroach upon the guaranteed rights Under Article 30, the aided minority educational institutions can be required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s more so in the matter of admissions to professional institutions. ... Q. 5. (a) Whether the minorities's rights to establish and administer educational institutions of their choice will include the procedure and method of admission and selection of students? A. A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or selection made should not be tantamount to maladministration. Even an unaided minority institution ought not to ignore the merit of the students for admission, while exercising its right to admit students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence. Q. 5. (b) *** A. *** Q. 5. (c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and principals including thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot discriminate any minority institution and put them in a disadvantageous position vis-a-vis to other educational institutions and has to maintain the concept of equality in real sense. The minority institutions must be allowed to do what non-minority institutions are permitted. It is open to State/concerned bodies to frame Regulations with respect to affiliation and recognition, to provide a proper academic atmosphere. While answering question No. 4, it was held that the Government or the University can lay down the regulatory measures ensuring educational standards and maintaining excellence and more so, in the matter of admission to the professional institutions. It may not interfere with the rights so long as the admissions to the unaided minority institutions are on transparent basis and the merit is adequately taken care of. 28. In Brahmo Samaj Education Society v. State of West Bengal, (2004) 6 SCC 224, the Court opined that State can impose such conditions as are necessary for the proper maintenance of standards of education and to check maladministration. The decision of T.M.A. Pai Foundation (supra) was followed in which it was observed that the State could regula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll for Regulation. But in the case of the latter, transparency and merit have to be unavoidably taken care of and cannot be compromised. There could be regulatory measures for ensuring educational standards and maintaining excellence thereof. (See para 161, answer to Question 4, in Pai Foundation, (2002) 8 SCC 481.) The source of this distinction between two types of educational institutions referred to hereinabove is to be found in the principle that right to administer does not include a right to maladminister. 106. S.B. Sinha, J. has, in his separate opinion in Islamic Academy, (2003) 6 SCC 697, described (in para 199) the situation as a pyramid-like situation and suggested the right of minority to be read along with the fundamental duty. Higher the level of education, lesser are the seats and higher weighs the consideration for merit. It will, necessarily, call for more State intervention and lesser say for the minority. 107. Educational institutions imparting higher education i.e. graduate level and above and in particular specialised education such as technical or professional, constitute a separate class. While embarking upon resolving issues of constitutional signific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tary, Government of NCT of Delhi and Ors., (2010) 8 SCC 49, the Court opined that measures to regulate the courses of study, qualifications, and appointment of teachers, the conditions of employment are germane to the affiliation of minority institutions. The Court held thus: 47. Still another seven-Judge Bench of this Court, in Ahmedabad St. Xavier's College Society, (1974) 1 SCC 717, was primarily concerned with the scope of Articles 29 and 30 of the Constitution, relating to the rights of minorities to impart general education and applicability of the concept of affiliation to such institutions. Of course, the Court held that there was no fundamental right of a minority institution to get affiliation from a university. When a minority institution applies to a university to be affiliated, it expresses its choice to participate in the system of general education and courses of instructions prescribed by that university, and it agrees to follow the uniform courses of study. Therefore, measures which will regulate the courses of study, the qualifications and appointment of teachers, the conditions of employment of teachers, the health, hygiene of students and the other facili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a reasonable extent of non-minority students, to the extent, that the right in Article 30(1) is not substantially impaired and further, the citizen's right Under Article 29(2) is not infringed. In Chandana Das (Malakar) v. State of West Bengal and Ors., (2015) 12 SCC 140, the Court observed that the Government can frame the conditions of eligibility for appointment of such teachers, thus: 21. It is unnecessary to multiply decisions on the subject for the legal position is well settled. Linguistic institution and religious are entitled to establish and administer their institutions. Such right of administration includes the right of appointing teachers of its choice but does not denude the State of its power to frame Regulations that may prescribe the conditions of eligibility for appointment of such teachers. The Regulations can also prescribe measures to ensure that the institution is run efficiently for the right to administer does not include the right to maladministration. While grant-in-aid is not included in the guarantee contained in the Constitution to linguistic and religious minorities for establishing and running their educational institutions, such grant canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court also noted the menace of the fee prevailing in the various educational professional institutions and in the context of Articles 19(1)(g), 19(6), 30, 41 and 47, and considering the Schedule VII, Entry 25 of List III and Entry 63-66 of List I, this Court held that concerning professional unaided minority and non-minority institutions , common entrance test has to be conducted by the State and Regulation of the fee structure by it is permissible. The Court took note of the large-scale malpractices, exploitation of students, profiteering, and commercialisation and entrance examination held by various institutions failing the triple test of having fair, transparent, and non-exploitative process. The Court held that reasonable restriction can be imposed to regulate admission and fee structure. The Court also observed about statutory functioning of the healthcare system in the country and the poor functioning of the MCI. (c) The Court further considered the criteria of proportionality and emphasised for proper balance between the two facets viz. the rights and limitations imposed upon it by a statute. The concept of proportionality is an appropriate criterion. The law impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to-- (i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise. 60. Another significant feature which can be noticed from the reading of the aforesaid Clause is that the State is empowered to make any law relating to the professional or technical qualifications necessary for practising any profession or carrying on any occupation or trade or business. Thus, while examining as to whether the impugned provisions of the statute and Rules amount to reasonable restrictions and are brought out in the interest of the general public, the exercise that is required to be undertaken is the balancing of fundamental right to carry on occupation on the one hand and the restrictions imposed on the other hand. This is what is known as doctrine of proportionality . Jurisprudentially, proportionality can be defined as the set of Rules determining the necessary and sufficient conditions for limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accept the aforesaid theory (and there cannot be any denial thereof), as a fortiori, it has also to be accepted that democracy is based on a balance between constitutional rights and the public interests. In fact, such a provision in Article 19 itself on the one hand guarantees some certain freedoms in Clause (1) of Article 19 and at the same time empowers the State to impose reasonable restrictions on those freedoms in public interest. This notion accepts the modern constitutional theory that the constitutional rights are related. This relativity means that a constitutional licence to limit those rights is granted where such a limitation will be justified to protect public interest or the rights of others. This phenomenon--of both the right and its limitation in the Constitution--exemplifies the inherent tension between democracy's two fundamental elements. On the one hand is the right's element, which constitutes a fundamental component of substantive democracy; on the other hand is the people element, limiting those very rights through their representatives. These two constitute a fundamental component of the notion of democracy, though this time in its formal aspect. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be ... rationally connected to the objective. Second, the means ... should impair as little as possible the right or freedom in question ... Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of sufficient importance . The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society. 64. The exercise which, therefore, is to be taken is to find out as to whether the limitation of constitutional rights is for a purpose that is reasonable and necessary in a democratic society and such an exercise involves the weighing up of competitive values, and ultimately an assessment based on proportionality i.e. balancing of different interests. (d) In Modern Dental College and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the restrictions. (6) There must be a direct and proximate nexus or reasonable connection between the restrictions imposed and the object sought to be achieved. If there is a direct nexus between the restrictions, and the object of the Act, then a strong presumption in favour of the constitutionality of the Act will naturally arise. (e) Concerning necessity of regulatory framework, the Court opined: 85. No doubt, we have entered into an era of liberalisation of the economy, famously termed as globalisation as well. In such an economy, private players are undoubtedly given much more freedom in economic activities, as the recognition has drawn to the realities that the economic activities, including profession, business, occupation, etc. are not normal forte of the State and the State should have minimal role therein. It is for this reason, many sectors which were hitherto State monopolies, like telecom, power, insurance, civil aviation, etc. have now opened up for private enterprise. Even in the field of education the State/Government was playing a dominant role inasmuch as it was thought desirable that in a welfare State it is the fundamental duty, as a component of di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e find regulatory bodies in all vital industries like, insurance, electricity and power, telecommunications, etc. 90. Thus, it is felt that in any welfare economy, even for private industries, there is a need for regulatory body and such a regulatory framework for education sector becomes all the more necessary. It would be more so when, unlike other industries, commercialisation of education is not permitted as mandated by the Constitution of India, backed by various judgments of this Court to the effect that profiteering in the education is to be avoided. (f) The Court held that the regulatory mechanism for centralised examination is legal and constitutional and does not infringe on the fundamental rights of the minority or non-minority to establish and administer educational institutions. It observed: 57. It is well settled that the right Under Article 19(1)(g) is not absolute in terms but is subject to reasonable restrictions under Clause (6). Reasonableness has to be determined having regard to the nature of right alleged to be infringed, purpose of the restriction, extent of restriction and other relevant factors. In applying these factors, one cannot lose sight of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation, privatisation and commercialisation by the private sector. It would be pertinent to mention that even in respect of those economic activities which are undertaken by the private sector essentially with the objective of profit-making (and there is nothing bad about it), while throwing open such kind of business activities in the hands of private sector, the State has introduced regulatory regime as well by providing Regulations under the relevant statutes. 96. As is evident from the facts mentioned by the State of Madhya Pradesh in its reply filed in IA No. 83 of 2015, the Association of Private Colleges has failed to hold their CETs in a fair, transparent and rational manner. The accountability and transparency in State actions is much higher than in private actions. It is needless to say that the incidents of corruption in the State machinery were brought in the public eye immediately and have been addressed expeditiously. The same could never have been done in case of private actions. Even on a keel of comparative efficiency, it is more than evident that the State process is far more transparent and fair than one that is devised by the private colleges which have no me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State, educational institutions by private bodies are allowed to be established. There is a paradigm shift over from the era of complete government control over education (like other economic and commercial activities) to a situation where private players are allowed to mushroom. But at the same time, regulatory mechanism is provided thereby ensuring that such private institutions work within such regulatory regime. When it comes to education, it is expected that unaided private institutions provide quality education and at the same time they are given freedom in joints with minimal Government interference, except what comes under regulatory regime. Though education is now treated as an occupation and, thus, has become a fundamental right guaranteed Under Article 19(1)(g) of the Constitution, at the same time shackles are put insofar as this particular occupation is concerned which is termed as noble . Therefore, profiteering and commercialisation are not permitted and no capitation fee can be charged. The admission of students has to be on merit and not at the whims and fancies of the educational institutions. Merit can be tested by adopting some methodology and few such meth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , (2002) 8 SCC 481, in the following words: (SCC p. 535, para 25) 25. The establishment and running of an educational institution where a large number of persons are employed as teachers or administrative staff, and an activity is carried on that results in the imparting of knowledge to the students, must necessarily be regarded as an occupation, even if there is no element of profit generation. It is difficult to comprehend that education, per se, will not fall under any of the four expressions in Article 19(1)(g). Occupation would be an activity of a person undertaken as a means of livelihood or a mission in life. The abovequoted observations in Sodan Singh case, (1989) 4 SCC 155, correctly interpret the expression occupation in Article 19(1)(g). 40. It becomes necessary to point out that while treating the managing of educational institution as an occupation , the Court was categorical that this activity could not be treated as business or profession . This right to carry on the occupation that education is, the same is not put on a par with other occupations or business activities or even other professions. It is a category apart which was carved out by this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 67 and 68 which permit framing of such Regulations are reproduced below: (SCC p. 549) 67. We now come to the Regulations that can be framed relating to private unaided professional institutions. 68. It would be unfair to apply the same Rules and Regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forego or discard the principle of merit. It would, therefore, be permissible for the university or the Government, at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while, at the same time, giving the management sufficient discretion in admitting students. This can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the management out of those students who have passed the common entrance test held by itself or by the State/university and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counselling by the State ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , merit must play an important role. The State or the University could require private unaided institution to provide for merit-based selection while giving sufficient discretion in admitting students. Certain percentage of seats could be reserved for admission by management out of students who have passed CET held by the institution or by the State/University. Interpretation of certain observations in para 68 of the judgment in T.M.A. Pai Foundation, (2002) 8 SCC 481, has been a matter of debate to which we will advert to in detail hereinafter. 48. The matter was then considered by a larger Bench of seven Judges in P.A. Inamdar, (2005) 6 SCC 537. It was held that the two committees for monitoring admission procedure and determining fee structure as per the judgment in Islamic Academy of Education, (2003) 6 SCC 697, were permissible as regulatory measures aimed at protecting the student community as a whole as also the minority themselves in maintaining required standards of professional education on non-exploitative terms. This did not violate Article 30(1) or Article 19(1)(g). It was observed that: (P.A. Inamdar case, (2005) 6 SCC 537, SCC p. 607, para 145) 145. ... Unless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reupon by the aforesaid judgments themselves explaining the nature of limitations on these rights. 55. It would be necessary to clarify the position in respect of educational institutions run by minorities. Having regard to the pronouncement in T.M.A. Pai Foundation, (2002) 8 SCC 481, with lucid clarifications to the said judgment given by this Court in P.A. Inamdar, (2005) 6 SCC 537, it becomes clear that insofar as such regulatory measures are concerned, the same can be adopted by the State in respect of minority-run institutions as well. Reliance placed by the Appellants in St. Stephen's College v. University of Delhi, (1992) 1 SCC 558, may not be of much help as that case did not concern with professional educational institutions. 67. Undoubtedly, right to establish and administer educational institutions is treated as a fundamental right as it is termed occupation , which is one of the freedoms guaranteed Under Article 19(1)(g). It was so recognised for the first time in T.M.A. Pai Foundation, (2002) 8 SCC 481. Even while doing so, this right came with certain clutches and shackles. The Court made it clear that it is a noble occupation which would not permit commerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s given to them Under Article 19(1)(g) on the one hand and reasonableness of the restrictions which have been imposed by the impugned legislation. The right to admission or right to fix the fee guaranteed to these Appellants is not taken away completely, as feared. T.M.A. Pai Foundation, (2002) 8 SCC 481, gives autonomy to such institutions which remains intact. Holding of CET under the control of the State does not impinge on this autonomy. Admission is still in the hands of these institutions. Once it is even conceded by the Appellants that in admission of students triple test is to be met, the impugned legislation aims at that. After all, the sole purpose of holding CET is to adjudge merit and to ensure that admissions which are done by the educational institutions, are strictly on merit. This is again to ensure larger public interest. It is beyond comprehension that merely by assuming the power to hold CET, fundamental right of the Appellants to admit the students is taken away. Likewise, when it comes to fixation of fee, as already dealt with in detail, the main purpose is that the State acts as a regulator and satisfies itself that the fee which is proposed by the education ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on the basis of merit, appoint their own staff (teaching and non-teaching), discipline and remove the staff, provide infrastructure and other facilities for students and do all such other things as are necessary to impart professional education to the students. Sections 3(d), 6 and 7 of the 2007 Act, therefore, do not impinge on the fundamental right to carry on the occupation of establishing and administering professional educational institutions as an occupation. The only purpose of Sections 3(d), 6 and 7 of the 2007 Act is to ensure that students of excellence are selected on the basis of a common entrance test conducted by the State or an agency authorised by the State and that students without excellence and merit do not make entry into these professional educational institutions through malpractices and influence. As has been held both in the judgments in T.M.A. Pai Foundation, (2002) 8 SCC 481 and P.A. Inamdar, (2005) 6 SCC 537, the right of private unaided professional educational institutions to admit students of their choice is subject to selection of students on the basis of their merit through a transparent, fair and non-exploitative procedure. In our considered opini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts, who had appeared or who are due to appear in examinations conducted by the States in accordance with their State laws, shall be decided after hearing the learned Solicitor General. On 9.5.2016, in the aforesaid matter, the Court considered various applications filed by private medical colleges seeking clarification of order dated 28.4.2016. This Court directed as under: 29. Medical Council of India (MCI) and Dental Council of India (DCI) issued Notifications dated 21-12-2010, amending the existing statutory Regulations to provide for a single National Eligibility-cum-Entrance Test (NEET) for admission to the MBBS/BDS course. The said Notifications were struck down in Christian Medical College, Vellore v. Union of India, (2014) 2 SCC 305. The said judgment stands recalled vide order dated 11-4-2016 in Medical Council of India v. Christian Medical College, Vellore, (2016) 4 SCC 342. 32. In a recent Constitution Bench judgment dated 2-5-2016, in Modern Dental College Research Centre v. State of M.P., (2016) 7 SCC 353, the stand of the private medical colleges (including minorities) that conducting of entrance test by the State violated the right of autonomy of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tralised State-conducted test but also centralised State-conducted counselling. 35. The MCI amended vide notification dated 10.3.2017 the Regulation on Graduate Medical Education, 1997 and Post Graduate Medical Education Regulations, 2000 providing for common counselling for admission to MBBS and post-graduate medicine courses on the basis of NEET. The said notifications were challenged by minority institutions, deemed universities, and other private institutions by filing a writ petition before this Court. The Court vide order dated 9.5.2017 in Dar-us-Salam Educational Trust and Ors. v. Medical Council of India and Ors., (Writ Petition (C) No. 267 of 2017) opined that common counselling does not in any manner affect the right of minority institutions to admit students of their own minority community. The Court held thus: 10. Common counselling conducted by the DGHS/State Government will not in any manner affect the rights of minority institutions to admit students of their respective minority community. The minority quota seats, if any, in institutions run by minorities will be filled up by minority students only. Therefore, the rights of minority institutions are fully prot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducation Regulations, 2000, admission to postgraduate courses are made providing for solely on the basis of the score secured by the candidates seeking admission based on centralised examination i.e. NEET. 9.5. Even while giving admissions in the State quota/institutional reservation quota, still the admissions are required to be given on the basis of the merits determined on the basis of the NEET examination results. Under the circumstances, introduction of the NEET Scheme, as such, has nothing to do with the institutional preference . Therefore, the change by introduction of the NEET Scheme shall not affect the institutional preference/reservation as approved by this Court from time to time in a catena of decisions, more particularly the decisions referred to hereinabove. Under the guise of introduction of the NEET Scheme, the Petitioners cannot be permitted to re-agitate and/or reopen the issue with respect to institutional preference which has been approved and settled by this Court in a catena of decisions, more particularly the decisions referred to hereinabove. 37. The notifications, which are questioned in the matters and the amendment made to Section 10D as introduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on merit in the permissible category, based on NEET as per procedure prescribed under the Act and Regulations. 39. In Faculty Association of All India Institute of Medical Sciences v. Union of India and Ors., (2013) 11 SCC 246, concerning issue of reservation in super-speciality, the Court opined: 22. Although the matter has been argued at some length, the main issue raised regarding reservation at the superspeciality level has already been considered in Indra Sawhney case, 1992 Supp (3) SCC 217, by a nine-Judge Bench of this Court. Having regard to such decision, we are not inclined to take any view other than the view expressed by the nine-Judge Bench on the issue. Apart from the decisions rendered by this Court in Jagadish Saran case, (1980) 2 SCC 768 and Pradeep Jain case, (1984) 3 SCC 654, the issue also fell for consideration in Preeti Srivastava case, (1999) 7 SCC 120, which was also decided by a Bench of five Judges. While in Jagadish Saran case, (1980) 2 SCC 768 and in Pradeep Jain case, (1984) 3 SCC 654, it was categorically held that there could be no compromise with merit at the superspeciality stage, the same sentiments were also expressed in Preeti Srivastava c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discussing the provisions of Article 335 also observed that there were certain services and posts where either on account of the nature of duties attached to them or the level in the hierarchy at which they stood, merit alone counts. In such situations, it cannot be advised to provide for reservations. In the paragraph following, the position was made even more clear when Their Lordships observed that they were of the opinion that in certain services in respect of certain posts, application of Rule of reservation may not be advisable in regard to various technical posts including posts in superspeciality in medicine, engineering and other scientific and technical posts. The Court directed the Union of India to take appropriate steps in accordance with views expressed in the case of Dr. Preeti Srivastava and Anr. v. State of M.P. and Ors. (1999) 7 SCC 120. 40. In Re The Kerala Education Bill (supra), it was opined that minority could not ask for aid and recognition of educational institution, when such institutions are recognized it would be open to make the institution retaining its character as effective as an educational institution without destroying its minority characte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... flict with the other Parts of the Constitution. There is no reason why conditions for the welfare of students and teachers should not be made, but any law or Rule or Regulation that would put the educational institutions run by the minorities at a disadvantage when compared to the institutions run by the others will have to be struck down. The law of the land includes Rules and Regulations that must apply equally to the majority as well as minority institutions. The minority institutions must be allowed to do what non-minority is permitted to do. They have to comply with the conditions of recognition, which cannot be such as to whittle down the right guaranteed Under Article 30 of the Constitution. 43. In Brahmo Samaj Education Society (supra), it was held that State could impose necessary conditions for proper maintenance of standards of education and to check maladministration. 44. On behalf of the Appellants, it was submitted that individual autonomy is the concern of any Government. There should not be interference to defeat the rights conferred by the Constitution. Reliance has been placed on Gobind v. State of Madhya Pradesh (supra) in which this Court held: 20. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suggestion that can be offered as unifying principle underlying the concept has been the assertion that a claimed right must be a fundamental right implicit in the concept of ordered liberty. 25. Rights and freedoms of citizens are set forth in the Constitution in order to guarantee that the individual, his personality, and those things stamped with his personality shall be free from official interference except where a reasonable basis for intrusion exists. Liberty against Government a phrase coined by Professor Corwin expresses this idea forcefully. In this sense, many of the fundamental rights of citizens can be described as contributing to the right to privacy. 26. As Ely says: There is nothing to prevent one from using the word 'privacy' to mean the freedom to live one's life without governmental interference. But the Court obviously does not so use the term. Nor could it, for such a right is at stake in every case. [See The Wage of Crying Wolf: A Comment on Roe v. Wade, 82 Yale LJ 920, 932]. 45. The reliance has also been placed on K.S. Puttaswamy and Anr. v. Union of India and Ors., 2017 (10) SCC 1, the decision relating to privacy in which this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those highly placed. It also exists for the common man, for the poor and the humble, for those who have businesses at stake, for the butcher, the baker and the candlestick maker . It lays down for this land a Rule of law as understood in the free democracies of the world. It constitutes India into a Sovereign Republic and guarantees in every page rights and freedom to the side by side and consistent with the overriding power of the State to act for the common good of all. (AIR p. 487, para 23) [For convenience, citations have been renumbered.] of the Constitution. It must be seen as a document written in the blood of innumerable martyrs of Jallianwala Bagh and the like. Man is not a creature of the State. Life and liberty are not granted by the Constitution. Constitution only stipulates the limitations on the power of the State to interfere with our life and liberty. Law is essential to enjoy the fruits of liberty; it is not the source of liberty and emphatically not the exclusive source. 46. It was argued that certain colleges have produced doctors of renowned fame, and they are an asset for India. There is no doubt about it that doctors of international fame have been pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... education, co-related to the improvement of public health, thus, it is a step-in furtherance of the duty of the State enshrined in the Directive Principles of the State Policy contained in Article 47 of the Constitution of India. Similarly, Article 46 aims at promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes, and other weaker sections. By prescription of one equivalence examination of NEET, the interest of their merit is also equally protected and its aims of preventing various malpractices, which crept into system and prevent economic exploitation by selling seats with which malady the professional medical education system suffered. Article 51A(j) deals with the duty to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. For that purpose, recognition of merit is necessary, and one has to be given a full opportunity in pursuit of his/her aim. The prescription of NEET is to provide equal opportunity and level launching platform to an individual to perform his duty as enshrined Under Article 51A(j). Thus, we find that there is no violation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grating forces in administration. It observed that it is not reasonable to claim that minority institutions will have complete autonomy. Some checks may be necessary and will serve the academic needs of the institution. A correlative duty of good administration is attached to the right to administer educational institution. It was also opined in Ahmedabad St. Xavier's College Society (supra) in paragraph 19 quoted above that the State can prescribe Regulations to ensure the excellence of the institution that does not militate against the right of the minority to administer the institutions. Such Regulations are not restrictions on the substance of the right, which is guaranteed; they secure the proper functioning of the institution. The institution cannot be allowed to fall below the standards of excellence under the guise of the exclusive right of the management. Minorities are as much part of the nation as the majority, and anything that impinges upon national interest must necessarily in its ultimate operation affect the interests of all. 52. It was further opined in Ahmedabad St. Xavier's College Society (supra) in paragraph 94 quoted above that there are conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot remain a mute spectator, and it must step in to prevent exploitation. 55. Thus, it is apparent that the provisions in question which have been incorporated in the Act relating to Medical/Dental education, the Government, MCI and DCI cannot be said to be an invasion of the fundamental rights. The intendment is to ensure fairness in the selection, recognition of merit, and the interests of the students. In the national interest, educational institutions are basically for a charitable purpose. By and large, at present education is devoid of its real character of charity, it has become a commodity. To weed out evils from the system, which were eating away fairness in admission process, defeating merit and aspiration of the common incumbent with no means, the State has the right to frame regulatory regime for aided/unaided minority/private institutions as mandated by Directives Principles, Articles 14 and 21 of the Constitution. The first step has been taken to weed out the evils from the system, and it would not be in the national interest to step back considering the overall scenario. If we revert to the old system, posterity is not going to forgive us. Still, complaints ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of merits in the matter of admissions. It is open to regulating the course of study, qualifications for ensuring educational standards. It is open to imposing reasonable restrictions in the national and public interest. The rights Under Article 19(1)(g) are not absolute and are subject to reasonable restriction in the interest of the student's community to promote merit, recognition of excellence, and to curb the malpractices. Uniform Entrance Test qualifies the test of proportionality and is reasonable. The same is intended to check several maladies which crept into medical education, to prevent capitation fee by admitting students which are lower in merit and to prevent exploitation, profiteering, and commercialisation of education. The institution has to be a capable vehicle of education. The minority institutions are equally bound to comply with the conditions imposed under the relevant Acts and Regulations to enjoy affiliation and recognition, which apply to all institutions. In case they have to impart education, they are bound to comply with the conditions which are equally applicable to all. The Regulations are necessary, and they are not divisive or disintegrative. S ..... 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