Holding

Unaided private professional colleges may fix reasonable fees and admit students on merit, with a management quota whose percentage is to be prescribed by the State, and minority institutions enjoy the same fundamental rights as non‑minorities but are not entitled to exceed the merit‑based quota.

Summary

The Supreme Court was asked to clarify several questions that arose from the T.M.A. Pai Foundation judgment concerning private unaided professional colleges. The petitioners, mainly minority and non‑minority unaided institutions, contended that they could fix their own fee structures, admit students by their own methods and fill all seats without state interference. The Court held that while such institutions enjoy autonomy to fix reasonable fees and generate a modest surplus, they may not charge capitation fees or profiteer, and fee structures must be approved by a state‑constituted committee. Admission must be merit‑based, with a management quota whose percentage is to be fixed by the State considering local needs, and minority institutions are not entitled to exceed this quota. The Court also directed each State to set up a permanent committee to oversee fee fixation and the conduct of common entrance tests, and disposed of the petitions, remitting the matters to regular benches for final disposal.

Issues considered

Whether private unaided educational institutions may fix their own fee structure.
Whether minority and non‑minority educational institutions stand on the same footing under Article 30.
Whether private unaided professional colleges can fill 100% of their seats and, if not, what percentage may be reserved for management.
Whether private unaided professional colleges may admit students by evolving their own method of admission.

Legislation cited

Subjects

Article 30minority educational institutionsprivate unaided professional collegesfee fixationcapitation feemerit based admissioncommon entrance teststate regulationreservationequality clausehuman rights

Judgment

A ISLAMIC ACADEMY OF EDUCATION AND ANOTHER
v.
STATE OF KARNATAKA AND OTHERS

AUGUST 14, 2003

B [V.N. KHARE, CJ., S.N. VARIA VA, K.G. BALAKRISHNAN, ARIJIT
PASA YAT AND S.B. SINHA, JJ.]

Constitution of India, 1950-Artic/e 30-Right of minority educational
C institutions-Decided in T.M.A. Pai case-Subsequent statutes/Regulations
led to litigation-Case interpreted in different perspectives-Reference to
Constitution Bench of Supreme Court for interpretation of the case-Held:
There can be no fixing of a rigid fee structure by Government-Each institute
has freedom to fix its own fee structure which should also generate surplus-
But the surplu:; to be used only for the educational institutions and not for
D personal gain or any other business or enterprise-Direction to set up a
Committee in each State for considering fixation offee~Minority and non-
minority educational institutions do not stand on the same footing-For
admission in unaided private professional colleges both minority and non-
minority, merit is to be criteria-In case of non-minority institution only a
E certain percentage of seats can be reserved for admission and the rest is to
be filled on the basis of counselling by State Agencies according to local
needs-In case of unaided minority professional colleges different percentage
can be fixed keeping in mind the need of the particular community apart from
the local needs-Private unaided professional colleges are not entitled to
admit students by evolving their own method of admission-The management
F of such institutions are to select students of their quota on the basis of
common entrance test either conducted by State or by an Association of all
colleges of a particular type in the State-Direction to State Government to
appoint a Committee to ensure fair test conducted by the Association of
colleges.

G Pusuant to judgment in T.M.A. Pai Foundation and Ors. v. State of
Karnataka and Ors., [20021 8 SCC 481, Union of India, various State
Governments and educational institutions understood the majority judgment
therein in different perspectives. Different statutes/regulations were enacted/
framed by different State Governments. These led to litigations in several

H 474
ISLAMIC ACADEMY OF EDUCATION. v. ST A TE 475

courts. Interim orders passed therein were challenged in the present petitions, A
wherein majority decision in T.M.A. Pai case was attempted to be interpreted
by various parties as suited to them. Therefore the petitions were referred to
Five Judges Bench for clarification of the judgment in T.M.A. Pai case.

Petitioners/applicants contended that the answers given to the
questions as set out at the end of the majority judgment lay down the true B
ratio of the judgment.

The following questions arose for clarification:

1. Whether the educational institutions are entitled to fix their
own fee structure; c
2. Whether minority and non-minority educational institutions
stand on the same footing and have the same rights.
3. Whether private unaided professional colleges are entitled to
fill in their seats, to the extent of 100%, and if not to what
extent; and D
4. Whether private unaided professional colleges are entitled to
admit students by evolving their own method of admission.
Clarifying the judgment in T.MA. Pai case, the Court
HELD: (Per V.N. Khare, CJ/for himselfand/or Variava, Balakrishnan E
and Pasayat, JJ.)

1. The answers to the questions, in the majority Judgment in T.M.A.
Pai case are merely a brief summation of the ratio laid down in the Judgment
The ratio decidendi of a Judgment has to be found out only on reading the
entire Judgment. In fact, the ratio of the judgment is what is set out in the F
judgment itself. The answer to the question would necessarily have to be read
in the context of what is set out in the judgment and not in isolation. In case
of any doubt as regards any observations, reasons and principles, the other
part of the judgment has to be looked into. By reading a line here and there
from the judgment, one cannot find out the entire ratio decidendi of the
judgment. (489-D-F] G
2.1. There can be no fixing of a rigid fee structure by the Government.
Each institute. must have the freedom to fix its own fee structure taking into
consideration the need to generate funds to run the institution and to provide
facilities necessary for the benefit of the students. They must also be able to
generate surplus which must be used for the betterment and growth of that H
476 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A educational institution. As per the majority judgment in T.M.A. Pai case,
imparting of education is essentially charitable.in nature. Thus the surplus/
profit that can be generated must be only for the benefit/use of that educational
institution. Profits/surplus cannot be diverted.for any other·use or purpose
and cannot be used for personal gain or for any other business or enterprise.
[491-H; 492-CJ
B
2.2. As, at present, there are statutes/regulatio.ns which govern the
fixation of fees and as this Court has not yet considered the validity of those
statutes/regulations, in order to give effect to the judgment in TM.A. Pai case
.the respective State Governments concerned shall set up, in each State, a
C Committee. Each educational Institute must place before this Committee, well
in advance ofthe academic year, its proposed fee structure. Along with the
proposed fee structure all relevant documents and books of accounts must
also be produced before the Committee for their scrutiny. The Committee shall
then decide whether the fees proposed by that institute are justified and are
not profiteering or charging capitation fee. The Committee will be at liberty
D to approve the fee structure or to propose some othedee which can be charged
by the institute. The fee fixed by the Committee shall be binding for a period
of three years, at the end of which .period the institute would be at liberty to
apply for revision. Once fees are fixed by the Committee, the institute cannot
charge either directly or indirectly any other amount over and above the
E amount fixed as fees. If any other amount is charged, under any other head or
guise e.g. donations, the same would amount to charging of capitation fee.
The Governments/appropriate authorities should consider framing
appropriate regulations, if not already framed, whereunder if it is found that
an institution is charging capitation fees or profiteering, that institution can
be appropriately penalised and also face the prospect of losing its recognition/
F .affiliation. [492-C-H; 493-A-B)
2.3. An educational institution can only charge prescribed fees for one
semester/year. If an institution feels that any particular student may leave in
midstream then, at the highest, it may require that student to give a bond/
bank guarantee that the balance fees for the whole course would be received
G by the institute even if the student left in midstream. If any educational
institution has collected fees in advance, only the fees of that semester/year
can be used by the institution. The balance fees must be kept invested in fixed
deposits in a nationalised barik. (493-C-E]

3. Non-minority·educational institutions would not have the same rights
H as those conferred on minority educational institutions by Article 30 of the
ISLAMIC ACADEMY OF EDUCATION. v. ST ATE 477
Constitution of India. Non-minority educational institutions do not have the A
protection of Article 30. Thus, in certain matters they cannot and do not stand
on similar footing as minority educational institutions. Even though the
principle behind Article 30 is to ensure that the minorities are protected and
r' are given an equal treatment yet the special right given under Article 30 does
give them certain advantages. [484-G-H; 495-A]
B
4.1. The majority judgment in T.MA. Pai case makes a distinction
between private unaided professional colleges and other educational
institutions i.e. schools and undergraduate colleges. The Judgment provides
that national interest would prevail, even over minority rights. It is for this
reason that in professional colleges, both minority and non-minority, merit C
has been made the criteria for admission. However, a further distinction has
been made between minority and non-minority professional colleges. It is
provided that in cases of non-minority professional colleges "a certain
percentage of seats" can be reserved for admission by the management. The
rest have to be filled up on basis of counselling by State Agencies. The
prescription of percentage has to be done by the Government according to D
local needs. Keeping this in mind provisions have to be made for the poorer
and backward sections of the society. So far as medical colleges are concerned,
an essentiality certificate has to be obtained before the college can be set up.
In non minority professional colleges admission of students, other than the
percentage given to the management, can only be on the basis of merit as per E
the common entrance tests conducted by Government Agencies. [498-B-E, G]

State of Maharashtra vs. Medical Association and Ors., [2002) 1 SCC
589, referred to.

4.2. A different percentage can be fixed for unaided minority professional
colleges. The expression "different percentage for minority professional F
institutions" carries different meaning than the expression "certain
percentage for unaided professional colleges." In fixing percentage for
y. unaided minority professional colleges the State must keep in mind, apart
from local needs, the interest/need of that community in the State. The need
of that community, in the State, would be paramount vis-a-vis the local needs. G
[499-F-G)

4.3. A minority professional college can admit, in their management
quota, a student of their own community/language in preference to a student
of another community even though that other student is more meritorious.
However, whilst selecting/admitting students of their community/language, H
478 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A the inter-se merit of those students cannot be ignored. Admission, even of
members of their community/language, must strictly be on the basis of merit
except that in case of their own students it has to be merit inter-se those
students only. Further ifthe seats cannot be filled up from members of their
community/language, then the other students can be admitted only on the basis
B of merit based on a common entrance test conducted by Government Agencies.
(499-H; 500-A-CJ

4.4. Majority judgment in T.MA. Pai case provides that admission by
the management can be by a common entrance test held by "itself or by State/
University". The words "common entrance test" clearly indicate that each
institute cannot hold a separate test. Thus the management could select
C students, of their quota, either on the basis of the common entrance tests
conducted by the State or on the basis of a common entrance test to be
conducted by an association of all colleges of a particular type in that State
e.g. medical, engineering or technical etc. The common entrance test, held
by the association, must be for admission to all colleges of that type in the
D State. The option of choosing, between either of these tests, must be exercised
before issuing of prospectus and after intimation to the concerned authority
and the Committee set up hereinafter. If any professional college chooses not
to admit from the common entrance test conducted by the association then
that college must necessarily admit from the common entrance test conducted
by the State. Selection of students must then be strictly on basis of merit as
E per that merit list. Minority colleges will be entitled to fill up their quota
with their own students on basis of inter-se merit amongst those students. If
it is found that any student has been admitted de-hors merit penalty can be
imposed on that institute and in appropriate cases recognition/affiliation may
also be withdrawn. (500-F-H; 501-A-D]
F 4.5. It cannot be said th~t the majority judgment only permits University/
State to provide for merit based selection at the time of granting recognition/

·-.
affiliation, and that once recognition/affiliation is granted to unaided
professional colleges, such a stipulation cannot be provided subsequently. Such
a provision can be made at the time of granting recognition/affiliation as well
G as subsequently after the grant of such recognition/affiliation.
(501-H; 502-A)

4.6. Respective State Governments are directed to appoint a permanent
Committee which will ensure that tiie·tests conducted by the Association of
colleges is fair and transparent. For each State a separate Committee ·shall
H be formed. The Committee shall have powers to oversee the tests to be
ISLAMIC ACADEMY OF EDUCA TJON v. STATE 479
conducted by the Association.,r This would include the power to call for the A
•
proposed question paper/s, to know the names of the paper setten and
examiners and to check the method adopted to ensure papers are not leaked.
The Committee shall supervise and ensure that the test is conducted in a fair
and transparent manner. The Committee shall have power to permit an
institution, which has been established and which has been permitted to adopt B
its own admission procedure for the last, at least, 25 years, to adopt its own
admission procedure an.d if the Committee feels that the needs of such an
institute are genuine, to admit, students of their community, in excess of the
quota allotted to them by the State Government. Before exempting any institute
or varying in percentage of quota fixed by the State, the State Government
must be heard before the Committee. It is clarified that different percentage C
of quota for students to be admitted by the management in each minority or
non-minority unaided professional college/s shall be separately fixed on the
basis of their need by the respective State Governments and in case of any
dispute as regards fixation of percentage of quota, it will be open to the
management to approach the Committee. It is also clarified that no institute,
which has not been established and which has not followed its own admission D
procedure for the last, at least, 25 years, shall be permitted to apply for or be
granted exemption from admitting students in the manner set out hereinabove.
[502-B-G]

Kera/a Education Bill, AIR (1958) SC 956; Rev Sidhajbhai v. State of E
Bombay, [1963] 3 SCR 837; Rev Father Proost v. State of Bihar, AIR (1969)
SC 465; State of Kera/av. Very Rev Mother Provincial, (1970) 2 SCC 417
and Ahmedabad St Xaviers College Society v. State of Gujarat, (1974) 1 SCC
717, referred to.

Per Sinha, J:( Partly dissenting) F
1.1. A judgment, it is trite, is not to be read as a statute. The ratio
decidendi of a judgment is its reasoning which can be deciphered only upon
reading the same in its entirety. The ratio decidendi of a case or the principles
and reasons on which it is based is distinct from the relief finally granted or
the manner adopted for its disposal.1552-GI G
Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa and
Ors. v. N.C. Budharaj (Deceased) by LRs. and Ors., [2001] 2 SCC 721; Padma
Sundara Rao (Dead) and Ors. v. State of T.N. and Ors., (2002) 3 SCC 533;
Haryana Financial Corporation v. Jagadamba Oil Mills and Anr., 12002] 3
SCC 496; General Electric Co. v. Renusagar Power Co., 11987] 4 SCC 137; H
480 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A Rajeswar Prasad Mishra v. The State of West Bengal and Anr. AIR 1965 SC
1887, referred to. i-

1.2. Answers to the questions would not be the ratio to a judgmer.t. They
are merely conclusions. They have to be interpreted, in a case of doubt or
dispute with the reasons assigned in support thereof in the body of the
B judgment, wherefor, it would be essential to read the other .paragraphs of the
judgment also. It is also permissible for this purpose (albeit only in certain
cases and ifthere exist strong and cogent reasons) to look to the pleadings of
the parties. (554-B-C)

Keshav Chandra Joshi and Ors. v. Union ofIndia and Ors., [19921 Supp.
c 1 sec 272~ relied on. .

1.3. A decision is an authority for what it decides and not what can be
logically deduced therefrom. [554-E)

Union of India v. Chajju Ram, (2003] 5 SCC 568, referred to.
D
2.1. So far as institutions imparting professional education are
concerned, having regard to the public interest, they are bound to maintain
excellence in standard of education. To that extent, there cannot be any
.
,-
'
compromise and the State would be entitled to impose restrictions and make
E regulations both in terms of Article 19(l)(g) and Article 30 of the
Constitution of India. The width of the rights and limitations thereof of unaided
institutions whether run by a majority or a minority must conform to the
maintenance of excellence. With a view to achieve the said goal indisputably
the regulations can be made by the State. (545-E-F)

p 2.2. The right to administer does not amount to right to ma!-administer
and the right is not free from regulation. The regulatory measures are
necessary for ensuring orderly, efficient and sound administration. The
regulatory measures can be laid down by the State in the administration of
minority institutions. [545-F-G(

G 2.3. Article 30(1) of the Constitution does not confer an absolute right.
The exercise of such right is subject to permissible State regulations with
an eye on preventing mal-administration. Broadly stated there are
"permissible regulations" and "imperntissible regulations". (545-H]

Sidhajbhai v. State of Gujarat, (1963) 3 SCR 837; State of Kera/av.
H Mother Provincial, (1970) 2 SCC 2079; All Saints High School v. Government
ISLAMIC ACADEMY OF EDUCATION. v. STA TE 481
of Andhra Pradesh, [1980) 2 SCC 478; Kera/a Education Bill, AIR (1958) A
SC 956; St. X<JViers College v. State of Gujarat, (1974[ l SCC 717 ~J1d Lilly
Kurian v. S.R. Lewina, (1979) 2 SCC 124, referred to.

3.1. In the matter of determination of the fee structure the unaided
institutions exercise a greater autonomy. They, like any other citizens
carrying on an occupation, must be held to be entitled to a reasonable surplus B
for development of education and expansio~ of the institution. Reasonable
surplus doctrine can be given effect to only if the institutions make profits
out of their investments. Economic forces have a role to play: Th~y! thus,
indisputably have to plan their investment and expenditure in such a manner
that they may generate some amount of profit. What is forbidd~n is (a) C
capitation fee and (b) profiteering. While determining the fee structure,
safeguard has to be provided for so that pro~~sional institutions do not become
auction houses for the purpos~ of se!~ing seats. Havi"!g regard!'! the statement
of law laid down in para 56 of majority judgment in T.MA. Pai case, it would
have been better, if sufficient guidelines could have been provided for. Sue~ a
task which is a difficult on~ has to be left to th~ c;ommittee: While fixing the D
fee structure the Com mitt~~ shal! _also tak~ into consideration, inter alia, the
salary or remuneration paid to the members of the faculty and other staff, the
investmtnt made by them, th~ i~fra~tr~~t~r~ pr~videl and .plan for future
development of the institution as al~o ~xp~nsi~n· of th~ educational in~tituti~n.
Future planning or improvement of fa~ilities may be provided for: An institution E
may want to invest in an ~xpensiv~ d~vic~ (for _medi?I colleges) or a pow~rful
computer (for technical colleges). Thes~ fa~tors ar~ also require to b~ taken
care of. The State must evolve a detailed procedure for constitution and smooth
f1;1nctioning of th~ ~ommittee. (5?4-G-H; 555-A; 557-A-q

3.2~ While this Court has not laid dow~ any fix~d guid~lin~s as regard F
fee structure, reasonable surplus should ordina.rily va.ry f_rom 6% to 15%,
as such surplus would (?e utilized for expansion of ~he system and development
of education. (557-D) · ·

3.3. The institutions shall charge fee only for one year in accordance
with the rules and shall not charge the fees for th~ entire course. Fees once G
fixed should not ordinarily be changed for a perio~ of three years, unless there
exists extra-ordinary reason. However, if for some reason, fees hav_e already
been collected for a longer period the amount so coll~cted shall _be kept in a
fixed deposit in .a nationalized bank against which no loan or adva1_1ce may be
granted so that the interest accrued thereupon may enure to the benefit of
the students concerned. Ordinarily, however, the management should insist H
482 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A for a bond from the concerned students. 1557-El
3.4. With a view to ensure that an educational institution is kept within
its bounds and does not indulge in profiteering or otherwise exploiting its
students financially, it will be open to the statutory authorities and in its
absence by the State to constitute an appropriate body, till appropriate statutory
B regulations are made in that behalf. 1557-FJ
4.1. The right of the minorities and non-minorities is equal. Only
certain additional protection has been conferred under Article 30(1) of the
Constitution of India to bring the minorities on the same platform as that of
non-minorities as regards the right to establish and administer an educational
C institution for the purpose of imparting education to the members of their
own 'community whether based on religion or language. The question, thus,
has to be considered keeping in view the fact that every Indian may be a
minority, either based on religion or language, in one part of the country or
the other. The right of a citizen as a minority in one part of the country cannot
be higher than his right as a member of majority in another part of the
D country. The right of the minorities in the matter of admission of students
can also be restricted like the non-minorities. 1541-F-H; 542-D)
4.2. It would be constitutionally immoral to perpetuate inequality among
majority people of the country in the guise of protecting the constitutional
rights of minorities and constitutional rights of backward and downtrodden.
E All the rights of these groups are part of right to social development which
cannot render national interest and public interest subservient to right of an
individual or right of community. 1545-BI
4.3. Clauses (3) and (4) of Article 15 are enabling provisions. The
States were to take appropriate _steps required therefor within the bounds,
F that is, limited only for uplifting the weaker sections and not for conferring
upon them a preferential right. Reservation can be made inter alia by way of
compelling State necessity. In any event the executive policy of the State cannot
be thrust upon the citizens without any valid legislatio_n. (548-GJ
4.4. In the event tile minorities are not granted the right to establish
G educational institutions of their choice and admit students of their community,
the right of equality would lose all its purpose and relevance. It is in that
sense the rights of the majority and minority must be held to be equal. The
provisions of Articles 19(1 )(g), 29(2) and 30 of the Constitution must be so
construed. 1545-CJ

H 4.5. The professional institutions indisputably are governed by statutes
ISLAMIC ACADEMY OF EDUCATION. v. STA TE 483
like Medical Council of India Act, All India Council for Technical Education A
Act and the University Grants Commission Act. In terms the provisions of
the statutes and regulations framed thereunder the private professional
institutions are required to maintain certain standards. They cannot be
deviated or departed from. In the context of giving admissions to the
meritorious students, it cannot be said that the students belonging to the
minority community shall be admitted without reference to merit. (542-E, F] B
4.6. The courts would not encourage establishment of pseudo minority
institutions imparting professional courses. The statutory rules and
regulations, thus, must be equally applied to all the professfonal institutions
whether aided or unaided whether run by a minority or non-minority. In the C_,
matter of maintenance of standard, these institutions must be equally treated.
(542-GJ

4.7. The right of the minority institution to admit their own students,
is only by way of protection of the minority interest so that they may get the
benefit of the equality clause. Such a protection should not be confused to be D
a right. (541-D)

4.8. If it be held that the minority institutions can admit all the students
belonging to their own community whereas the non-minority institutions
cannot, the same would amount to re-writing the judgment. (542-HJ

Jennifer Gratz and Patrick Hamacher v. Lee Bollinger, decided on 23rd E
June 2003 by US Supreme Court, referred to.

4.9. It cannot be said that the management of the minority il1stitution
cannot be taken over, whereas that of the non-minority institutions can be.
This Court in no unmistakable terms held that the State cannot take any step F
by way of imposing conditions at the time of grant of recognition which would
amount to nationalization of education. This applies to both minorities and
non-minorities. (540-E-FJ

5.1. What is explained in T.MA. Pai case is that there cannot be any
fixed percentage. Each case will have to be considered on its own merit. Need G
of the institution should be the prime concern. Percentage will have to be
worked out having regard to the need only. It has nothing to do with minority
or non-minority; aided or unaided. (542-C)

5.2. It is not correct to say that only because two different expressions
"certain" and "different" have been mentioned at two places in para 68 of the H
484 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A majority judgment in T;M:A. Pai case, they connote two airrefeiit meanings.
They wiii have to be read in the context in which they have been used; As a
logicai corollary, it will also be incorrect to say that minority unaided
iDstituHons can fill up all the seats from amongst ihe students belonging to
their coinmuriity whereas the rion:minority unaided institutions will have no
sucli right Ttie very fact that different percentages are to be fixed for iniriority
.B unaidei:I ana non-minority unaided institutions is itsetra ctear pointer to show
tliat although (Jiffererit percentages may be prescribed therefor; but both
iriirioi-icy unai<led and non:fufftority institutions can admit the students of their
choice to ihe 'extent of the percentage so pres'cribed; aiheit \\•lthcnit giving a
go bye to the merit criteria. !531-B-t)
c 'Sj. seieetioh or stucients, however, by the minority institutions even ror
ihe mein hers or their coitinniility cannot be bereft or merit. oniy in a given
sitUation less meritorious candidates froni the minority community can be
.1• •.•.• •
'1-'·~ .. :1·,+. 11 ..........,. ,.,._ .............. ,............. _
~~.,.ti" r .. _ _ ... ~ •·* ..__ ·- ,.. "" • •
.~ .;_,~. ,..
admitted v1s:.a:v1s the general category; but therefor the modahty has to be
workea out. For ifre said purpo"'se de Jacto equality cioctrine may be ·a(>piied
b or
in~teaci 'or cie jure eQ'U'aiiiy as every kirtti ciiscriffiiiiatioii iffay not be vioiative
·or tite equality ciause. [562-F':.ci

Pradeep jain v. Union of India, f1984i j s·cc 6S4, refei+e<i t6.
5:4. file miil"orlty iris-tihitions im'panii:tg professional c·oufses may itave
E afoga1 -0·r'ci>'n~·t'itiitiona1 right to ho1d their own examination; but a serious
conside'ratiOn 'is required to he bestowed as to whether for 'the purpose of
judgiilg 'inefit they should opt for the Cofomon Entrance Test be'ii:i iiy '.the State.
silclt ac·o"t1rie; 1r resor'"ted to, would not only be h"eiprui roraetermining the
;fr{ter se merit between the sfode'ilts/caildidates but also woY1ld ·be ·sufflCient to
F be indicatiVe of the fact how and 'to what ·extent the students .belonging to
miUorit'ies lag behi"rid the ..najoflty so that special effortS can be made to briffg
their sta.ildard up to the na.tional ievel. 1565-F-GI

5.5. The quota ofSeats to be filled u'p by the State Government for the
poor'or weaker sectio'i'ls Of society may be fixed on the basis ofthe entrance
0 tes·t lie1CI by the co'Dceriieit '.State 'Government ·o·r the unh.-ersffy. Ecoifomic
ci°i!;ability 7if a1rieritcir'iou's ·~tiident sh"o'iitci 'Come :to the forelront for de'terniining
crite"ria as ·regards "poor or weaker sectio·n·s of the society. (S6S:.H; 566:.A)

5:6. A'ppropriate stiituto·ry iiuthoiity ·on a deeper consideratio·n of the
matter iiii:1y 'prescribe a 's'ultable method for th"e l>iir"pose of11eterritiitfog the
H mfrit ·as aiso :tile 'fafr Mid 'trans"pareiit :nianlie"r in whkh such eYaininations
ISLAMIC ACADEMY OF EDUCATION. v. STA TE 485

can be conducted. Such a power exists under the UGC Act, MCI Act and AICTE A
Act. The relevant enactments wherein these statutory authorities have been
created provide for such law. However, assuming such a machinery is not
evolved, the State may constitute a body. Standard of education at no cost shall
be given a go by. Any institution ifit thinks proper and expedient, may file an
application for grant of exemption so as to enable it to hold its own examination. B
(566-A-C)

5.7. Although local needs, thus, may have to be determined keeping in
view the factors enumerated therein but it must also be noticed that no
essentiality certificate is required to be given by the State in relation to
engineering and other professional colleges. While laying down the law based
on interpretation of a Constitution as well as a judgment, it cannot be held C
that 'local needs' must be referable to the medical education. Furthermore, it
may be difficult to give a restrictive meaning to the expression 'local needs'
i.e. keeping the same confined to the area where the educational institution
is sought to be established inasmuch as the right of minority extends to the
entire State and, thus, the local needs may also have direct nexus having D
regard to the need of the State. (552-B-D]
State of Maharashtra v. Indian Medical Association and Ors., (2002)
1 sec 580, disti:lguished.
5.8. In T.MA. Pai case it was laid down that certain conditions can be
imposed as regards admission of students, mode of holding examinations at E
the time of grant of recognition. It would be too much to say that only because
an institution receives recognition/affiliation at a distant point of time the
appropriate Government is denuded of its power to lay down a1iy law in
imposing any fresh condition despite the need of change owing to passage of
time. Furthermore, the Parliament and the State Legislatures are not denu<led F
of their power having regard to restrictions that may satisfy the test of clause
(6) of Article 19 of the Constitution oflndia or regulations in terms of Article
30 depending upon the national interest/public interest and other relevant
factors. However, the State/University while granting recognition or the
affiliation cannot impose any condition in furtherance of its own needs or in
pursuit of the Directive Principles of State.Policy. [574-G-H; 575-A-B) G
5.9. With a view to avoid any future controversy, Court may not fix a
definite percentage for the said purpose. Different institutions may be
established by different minority communities. The need of the minority
community may differ from State to State. The need of the minority community
may have a nexus with the population belonging to that community in that H
486 SUPREME COURT REPORTS [2003] su'pp_ 2 S.C.R.

A State. It will further depend upon various other relevant factors. The
percentage of seats will also depend upon the need of the community in a
particular State as also the need of the institution itself. The nature of the
professional course would also have relevance. All these factors must be taken
into consideration by the appropriate Committee or Body so long a statutory
regulation is not framed in this behalf. Furthermore, the need of the community
B vis-a-vis the local needs must be judged upon taking into consideration the
relevant factors and ignoring irrelevant ones. Local needs, if it is compelling
state interest, will have a primacy over the need of the minority community
and in that view of the matter it would not be correct to lay down a proposition
of law that the need of that community in the State would be paramount Each
C case, thus, has to be considered on its own merit and no hard and fast rule
can be laid down therefor. (567-C-D, F-H; 568-A]

6. The right of development from the human right point of view must
be construed liberally. When there are two competing human rights namely
human rights for the religious minorities and the human rights for
D development, having regard to the economic and national interest of the
country in the matter of admission of students, the latter should be allowed to
prevail subject to protection of the basic minority rights. The State may have
to strike a delicate balance between these two competing rights. Furthermore,
the right to admit students may vary from course to course, discipline to
E discipline. At the stage of post graduate level, there may be only one seat or
two seats, and, thus, in such a situation the right of the minority instituti1Jns
to·admit a student may be less than in the case of non-professional course.
(572-E-FI

Kapila Hingorani v. State of Bihar, JT (2003) 5 SC 1, referred to.
F Munn v. Illinois, (1877) 94 US 113, referred to.

7. The superior courts in India exist for interpretation of Constitution
or interpretation of statutes. They cannot evolve a fool-proof system on the
basis of affidavits filed by the parties or upon hearing their counsel. Certain
G details of vexing problems on the basis of the interpretation given by this Court
must be undertaken by the statutory bodies which have the requisite expertise.
It is expected that statutory bodies would be able to perform their duties for
which they have been established. The doors of the Court should not be
knocked every time, if a problem arises in implementation of the judgment,
however slight it may be. The Court has its own limitations. The problems
H which can be sorted at the ground level by holding consultations should not
ISLAMIC ACADEMY OF EDUCATION. v. STATE 487
be allowed to be brought to the Court. In that view of the matter, Committees A
have been directed to be set up for the aforementioned purposes. (575-F-H)

CIVIL ORIGINAL mRISOICTION: Writ Petition (C) No. 350of1993.

(Under Article 32 of the Constitution of India.)
B
WITH

SLP(C)Nos.11286, 11391, 11189-11195/2003, W.P.(C)Nos.355/93, 174/
2003, T.P.(C) Nos. 286-288/2003,SLP(C) Nos. 3465-3466, 3942-3943, 4002-4003,
9253-9254, 10561/2003, W.P.(C) Nos. 261, 275, 280, 289 of2003.

Raju Ramachandran and R.N. Triv\!di, Additional Solicitor Generals, F.S.
c
Nariman, Rakesh Dwivedi, AK.Ganguli, H.N. Slave, K.K. Venugopal, Dr. Rajiv
Dhawan, Mohan Parasaran, P.P. Rao, V.R. Reddy, Dipankar P. Gupta, S.K.
Dholakia, T.R. Andhayarunjina, Kailash Vasdev, R. Mohan, K. Rajendra
Chowdhary, M.N. Krishnamani, Yashank Adhyaru, P.S. Mishra, Sr. Advs., Dr.
(Mrs.). Roxna S. Swamy, A. Lobo, Subhash C. Sharma, Ramesh N. Keswani, D
Bharat Sangal Seshachala, Ms. Niranjana Singh, Dayan Krishnan, Nikhil
Nayyar, Trideep Pias, Abhishek Chaudhary, Ms. Vimla Sinha, M.V. Seshachala,
Madhu Naik, S. Sukumaran, Suresh Unnikrishnan, Ms. Divya Nair, K. Rajeev,
Madhusudan R. Naik, S. Ravindra Bhat, Naveen R. Nath, Sanjay Sharawat,
Ms. Hetu Arora, Vijay Narain, C.B.N. Babu, Bimal Roy Jad, Ratan Singh, Adv. E
General for State ofKerala, K.R. Sasiprabhu, John Mathew, Anil Thomas, G.
Prakash, S. Udaya Kumar Sagar, Ms. Bina Madhavan, Prasanth P., P.H. Parekh,
Krishna Srinivasan, E.R. Kumar, Rohit Alex, S. Nanda Kumar, V. Vijayan, M.
Yogesh Kanna, Jitendra Shankar, Anuj Srivastav, Rakesh K. Sharma, Ajit
Kumar Sinha, S.W.A. Qadri, Ms. Rekha Pandey, D.S. Mehra Ms. Anil Katiyar,
K.C. Kaushik, Ashok Kumar Pandey, Pritish Kapur, Prateek Jalan, Sunil F
Mathews, A.N. Jaya Ram, Adv. General for State of Kamataka, Sanjay R.
Hegde, Satya Mitra, Anil K. Mishra, Ms. Mahalaxmi Pavani, Maninder Singh,
Ms. Pratibha M. Singh, Angad Mirdha, Ankur Talwar, Kirtiman Singh, D.S.
Mehra, G. Prabhakar, J.S. Attri, Gopal Prasad, T.V. Ratnam, K. Subba Rao, Ms.
A. Subhashini, S.R. Bhat, Ms. Manakshi Vij, T.N. Subramanium, G
Bhavanishankar V. Gadnis, Shiv Kumar Suri, A. Mariarputham, Ms. Aruna
. Mathur, A.K. Srivastava, S.S. Shamshery, Ms. Krishna Sarma, Ms. Asha G.
Nair, V.K. Sidharthan, Sakesh Kumar, S.K. Agnihotri, T.C. Sharma, Ms. Neelam
Sharma, Ajay Sharma, KH. Nobin Singh, Ms. H. Wahi, U.U. Lalit, S.S. Shinde,
Mukesh K. Giri, S.K. Shandilya, Ms. V.D. Khanna, Ranji Thomas, Ms. Bharati
Upadhyay, Arun Pednekar, V.N. Raghupathy, Anil Shrivastav, Gopal Singh, H
488 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A Navin Prakash, Ms. Kirti Mishra, Anis Suhrawardy, Neeraj Jain, Ms. Kavita
Wadia, V.G. Pragasam, A.S. Rawat Additional Advocate General for State of
Uttaranchal, J.K. Bhatia, R.S. Suri, Jagjit Singh Chhabre, Chandra Bhushan
Prasad, Shailesh Madiyal, C.S. Vaidyanathan, P.N. Ramalingam, V. Balaji, T.
Raja, Rakesh K. Sharma, Prashant Bhushan, N.L. Ganpathi, Bharat Kumar,
Bhupender Yadav, Ms. Sheela Goel, Ms. Sumita Hazarika, Ms. Madhu
B Moolchandani, R. Santhana Krishnan, D. Mahesh Babu, Duval C. Dave, Ms.
Apama Bhat, P. Ramesh Kumar, Ejaz Maqbool, Wajid Ali Kami!, U]wal Kr. Jha,
Ms. Minakshi Nag, Ms. Sarla Chandra, Sanjay Sen, Rana S. Biswas, Gourav
Agarwal, Ptasant Kumar, Joseph Pookkatt, T.N. Subramanian, M. Qamaruddin,
Mrs. M. Qarriaruddin, Arribar Qamaruddin and Manish Goswami, Advs., with
C them for the appearing parties.

The Judgment of the Court were delivered by

V. N. KHARE, CJl. For himself and for Variava, Balakrishnan and Pasayat,
JJ. On 31st October, 2002 eleven Judge Bench of this Court delivered the
D Judgment in the case oft.MA. Pai Foundation and Ors. v. State ofKarnataka ·
and Ors., [2002] 8 SCC 481. A brief history as to how a eleven Judge Bench
of this Court came to decide this case is set out in para 3 of the judgment,
which reads as under:

"3. The hearing of these cases has had a chequered history. Writ
E Petition No.- 350 of 1993 filed by the Islamic Academy of Education
and connected petitions were placed before a Bench of five Judges.
As the Bench was prima facie of the opinion that Article 30 did not
clothe a minority educational institution with the power to aoopt its
own method of selection and the correctness of the decision of this
Court in St Stephens College versus University of Delhi was doubted,
F it was directed that the questions that arose should be authoritatively
answered by a larger Bench. These cases were then placed before a
bench of seven Judges. The questions framed were recast and on 6-
2-1997, the Court directed that the matter be placed before a Bench
of at least eleven Judges, as it was felt that in view of the Forty-
G second Amendment to the Constitution, whereby "education" had .
been included in Entry 25 of List III of Seventh Schedule, the question
of who would be regarded as a "minority" was required to be considered
because the earlier case-law reiated to the pre-amendment era, when
education was only in the State List... ... "

H After the Judgment was delivered, on 3 lst October 2002, the Union of India,
ISLAMIC ACADEMY OF EDUCATION. v. STA TE [V.N. KHARE, CJ.) 489
various State Governments and the educational institutions understood the A
majority judgment in different perspectives. Different statutes/regulations were
enacted/framed by different State Governments. These led to litigations in
several Courts. Interim orders passed therein have been assailed before this
..,
Court. When these matters came up before a Bench of this Court, the parties
to the writ petitions and special leave petitions attempted to interpret the B
majority decision in their own way as suited to them and therefore at their
request all these matters were placed before a Bench of five Judges. It is
under these circumstances that this Bench has be~n constituted so that
doubts/anomalies, if any, could be clarified.

Most of the petitioners/applicants before us are unaided professional C
educational institutions (both minority and non-minority). On behalf of the
petitioners/applicants it was submitted that the answers given to the questions,
as set out at the end of the majority Judgment, lay down the true ratio of the
Judgment. It was submitted that any observation made in the body of the
judgment had to be read in the context of the answers given. We are unable
to accept this submission. The answers to the questions, in the majority D
Judgment in Pai' s case, are merely a brief summation of the ratio laid down
in the Judgment. The ratio decidendi of a Judgment has to be found out only
on reading the entire Judgment. In fact, the ratio of the judgment is what is
set out in the judgment itself. The answer to the question would necessarily
have to be read in the context of what is set out in the judgment and not in E
isolation. In case of any doubt as regards any observations, reasons and
principles, the other part of the judgment has to be looked into. By reading
a line here and there from the judgment, one cannot find out the entire ratio
decidendi of the judgment. We, therefore, while giving our clarifications, are
deposed to look into other parts cf the Judgment other than those portions
which may be relied upon. F

... Very briefly stated the other submissions were as follows:

On behalf of the petitioners/applicants it was also submitted that fixation
of percentages of seats that could be filled in the unaided professional
colleges both minority and non minority by the management, as done by G
various State Governments, was impermissible. It is further submitted that the
private unaided professional educational institutions, had been given complete
autonomy not only as regards the admission of students but also as regards
the determination of their own fee structure. It was submitted that these
institutions could fix their own fee structure, which could include a reasonable H
490 SUPREME COURT REPORTS (2003] SUPP. 2 S.C.R.

A revenue surplus for purposes of development of education and expansion of
the institution, and that so long as there was no profiteering or charging of
capitation fees, there could be no interference by the Government. It was
submitted that the right to admit students is an essential facet of the right
to administer, and so long as admission to the unaided educational institutions
B is on a fair and transparent basis and on the basis of merit, government
cannot interfere. It was submitted that these institutions are entitled to fill up
all their seats by adopting/evolving a rational and transparent method of
admission which ensures that merit is adequately taken care of. It was submitted
that in any event the institutions should be given a choice and be allowed
to admit students on basis of the ICSC or SSC or other such examination. It
C was also suggested that educational institutions of a particular type may be
permitted to associate themselves for the purposes of holding a common
entrance test in each State. On behalf of minority institutions, it was submitted
that they are entitled to fill up all the seats with students of their own
community/language. On behalf of non-minority institutions, it was submitted
D that they also had a fundamental right to establish and administer educational
institutions and that the majority Judgment puts them on a par with the
minority institutes.

As against this, on behalf of the Union of India, various State
Governments and some students, who sought to intervene, it was submitted
E that the right to set up and administer ari educational institution was not an
absolute right, and this right is subject to reasonable restrictions and that this
right is subject (even in respect of minority institutions) to national interest.
It was submitted that imparting education was a State function but, due to
resources crunch, the States were not in a position to establish sufficient
number of educational institutions. It was submitted that, because of such
F resources crunch, the States were permitting private educational institutions
to perform State functions. It was submitted that the Union of India, the
States, Universities had statutory rights to fix the fees and to regulate admission
.4-
of students in order to ensure (a) that there was no profiteering; (b) capitation
fees were not charged; (c) admission based on principles of merit and (d) to
G ensure that persons from the backward classes and poorer sections of society
also had an opportunity to receive education, particularly, professional
education. It was submitted that if these educational institutions were permitted
to have their own tests for admission, the students would be put to undue
harassment and hardship inasmuch as they would have to pay for application
forms in various colleges and appear for tests in various colleges. It was
H pointed out that even if each institution charged Rs. 500 to Rs. 1000 a student
ISLAMIC ACADEMY OF EDUCATION. v. STATE [V.N. KHARE, CJ.] 491
would ultimately have to pay a large amount by way of application fees as, A
in the absence of a common entrance test and admission procedure the
students would have to apply to a number of colleges. It is submitted that
the students would also have to spend for transport from and to each college
and may find it difficult, if not impossible to travel, from one college to
another, to appear in all the tests. It was submitted that unless it was ensured B
that colleges admit students strictly on the basis of merit at a common
entrance test, .it would be impossible to ensure that capitation fees were not
charged and that there was no profiteering. It was pointed out that some
colleges do not even issue admission forms unless and until the student
agrees to pay a hefty sum. It was submitted that the majority Judgment
clarified that Article 30 had been enacted not for the purposes of giving any C
special right or privileges to the minority educational institutions, but to
ensure that the minorities had equal rights with the majority. It was submitted
that minority educational institutions cannot claim any higher or better rights
than those enjoyed by the non-minority educational institutions .
...
Both sides relied upon various passages from the majority judgment in D
support of the respective submissions. These passages are reproduced
hereinafter.

In view of the rival submissions the following questions arise for
consideration:
(I) whether the educational institutions are entitled to fix their own fee
E
structure;

(2) whether minority and non minority educational institutions stand
on the same footing and have the same rights;

(3) whether private unaided professional colleges are entitled to fill in F
their seats, to the extent of l 00%, and if not to what extent; and

(4) whether private unaided professional colleges are entitled to admit
students by evolving their own method of admission;

Question No. 1.
G
So far as the first question is concerned, in our view the maJonty
judgment is very clear. There can be no fixing of a rigid fee structure by the
government. Each institute must have the freedom to fix its own fee structure
taking into consideration the need to generate funds to run the institution and
to provide facilities necessary for the benefit of the students. They must also H
492 SUPREME COURT REPORTS (2003] SUPP. 2 S.C.R.

A be able to generate surplus which must be used for the betterment and
growth of that educational institution. In paragraph 56 of the judgment it has
been categorically laid down that the decision on the fees to be charged must
necessarily be l~ft to the private educational institutions that do not seek and
which ar~ not dependent upon any funds from the Government. Each institute
B will be entitled to have its own fee structure. The fee structure for each
institute must be fixed keeping in mind the infrastructure and facilities available,
the investments made, sahlries paid to the teachers aod staff, future plans for
expansion and/or b~tterment of the institution etc. Of course there can be no
profiteering and capitation fees cannot be charged. It thus needs to be
emphasized that as per the majority judgment imparting of education is
C essentially ch~ritable in nature. Thus the surplus/profit that can be generated
must be only for the benefit/use of that educational institution-. Profits/
surplus cannot be diverted for any other use or purpose and cannot be used
for personal gain or for any other business or enterprise. As, at present, there
are statutes/regulations which _govern the fixation cf fees and as this Court
has not yet considered the validity of those statutes/regulations, we direct
D that in order to give effect to the judgment in TMA PA.l's case th!! respective
State Governments concerned authority shall set up, in each State, !l committee
headed by a retired High Court judge who shall be nominated by the Chief
Justice of that State. The other member, who shall be nominated by the Judge,
should be a Chartered Accountant of repute. A representative of the Medical
E Council of India (in short 'MCI') or the All India ~oun~il for Technical
Education (in short 'AICTE'), depending on the type of instituti~n, shall also
be a member. The Secretary of the St<cite Government in charge of Medical
Education or Technical Education, as the cas~ may be, shall be a member and
Secretary of the Committee. The Committee should be free to nominate/co-opt
another ind~pendent person of repute, so th_at ·total number ofm~mbers of the
F Committee shall not exceed 5. Each education.al lnstit1.:1te must place before
this Committee, well in advance of the academic year, its proposed fee structure.
Along with the proposed fee structure all relevant documents and books of •
accounts must also be produced before the committee for their scrutiny. The
Committee shall then decide whether the fees proposed by that insti_tute are
G justified and are not profiteering or charging capitation fee .. The Committee
will -be at liberty to approve th~ fee stru~ture or to propose some other fee
which _can be charged by the institute. The fe~ -fix~d -by _the s;ommitt~e shall
be binding for a period of thr,ee years, !lt the end of whi~h perio~ the institute
would be at liberty to apply for r~vision. Once (ees Ar~ fix~d by the Co_mmittee,
the institute cannot charge either .directly or indirectly any other amount over
H and above the amount fixed as fees. If any other amount is charged, under
ISLAMIC ACADEMY OF EDUCATION. v. STATE [S B. SINHA, J.) 493
any other head or guise e.g. donations the same would amount to charging A
of capitation fee. The Governments/appropriate authorities should consider
framing appropriate regulations, if not already framed, whereunder if it is
found that an institution is charging capitation fees or profiteering that
,.,
institution can be appropriately penalised and also face the prospect of losing
its recognition/affiliation.
B
It must be mentioned that during arguments it was pointed out to us
I that some educational institutions are collecting, in advance, the fees for the
entire course i.e. for all the years. It was submitted that this was done because
the institute was not sure whether the student would leave the institute
midstream. It was submitted that if the student left the course in midstream
then for the remaining years the seat would lie vacant and the institute would
c
suffer. In our view an educational institution can only charge prescribed fees
for one semester/year. If an institution feels that any particular student may
leave in midstream then, at the highest, it may require that student to give
a bond/bank guarantee that the balance fees for !he whole course would be
received by the institute even ifthe student left in midstream. If any educational D
institution has collected fees in advance, only the fees of that semester/year
can be used by the institution. The balance fees must be kept invested in
fixed deposits in a nationalised bank. As and when fees fall due for a semester/
year only the fees falling due for that semester/year can be withdrawn by the
institution. The rest must continue to remain deposited till such time that they
fall due. At the end of the course the interest earned on these deposits must E
be paid to the student from whom the fees were collected in advance.

Question No. 2

The next question for consideration is whether minority and non minority
educational institutions stand on the same footing and have the same rights F
under the Judgment. In support of the contention that the minority and non
minority educational institutions had the same rights reliance was placed
upon paragraphs 138 and 139 of the Judgment. These read as follows:

"138. As we look at it, Article 30(1). is a sort of guarantee or assurance
to the linguistic and religious minority institutions of their right to G
establish and administer educational institutions of their choice.
Secularism and equality being two of the basic features of the
Constitution, Article 30(1) ensures protection to the linguistic and
religious minorities; thereby preserving the secularism of the country.
Furthermore, the principles of equality must necessarily apply to the H
494 SUPREME COURT REPORTS (2003] SUPP. 2 S.C.R.

A enjoyment of such 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
B down. At the same time, there also cannot ~e any reverse
discrimination. It was observed in St. Xaviers College case, at page
192, that "the whole object of conferring the right on minorities under \
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,
c 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 favournble treatment than
another. Laws of the land, including rules and regulations, must apply
equally to the majority institutions as well as to the minority institutions. ,,·
D The minority institutions must be allowed to do what the non-minority
institutions are permitted to do."

"139 Like any other private unaided institutions, similar unaided
educational institutions administered by linguistic or religious minorities
are assured maximum autonomy in relation thereto; e.g., method of
E recruitment of teachers, charging of fees and admission of students.
They will have to comply with the condition of recognition, which
cannot be such as to whittle down the right under Article 30."
Undoubtedly at first blush it does appear that these paragraphs equate both
types of educational institutions. However on a careful reading of these
F paragraphs it is evident that the essence of what has been laid down is that
the minority educational institutions have a guarantee or assurance to establish
and administer educational institutions of their choice. These paragraphs
merely provide that laws, rules and regulations cannot be such that they
favour majority institutions over minority institutions. We do not read these
G paragraphs to mean that non minority educational institutions would have the
same rights as those conferred on minority eciucational institutions by Article
30 of the Constitution of India. Non minority educational institutions do not
have the protection of Article 30. Thus, in certain matters they cannot and
do not stand on similar footing as minority educational institutions. Even
though the principle behind Article 30 is to ensure that the minorities are
H protected and are given an equal treatment yet the special right given under
ISLAMIC ACADEMY OF EDUCATION. v. STATE [V.N. KHARE, CJ.] 495
Article 30 does give them certain advantages. Just to take a few examples, the A
Government may decide to nationalise education. In that case it may be
enacted that private educational institutions will not be pennitted. Non minority
educational institutions may become bound by such an enactment. However,
the right given under Article 30 to minorities cannot be done away with and
the minorities will still have a fundamental right to establish and administer
educational institutions of their choice. Similarly even though the government B
may have a right to take over management of a non minority educational
institution the management of a minority educational institution cannot be
taken over because of the protection given under Article 30. Of COl!rse we
must not be understood to mean that even in national interest a minority
institute cannot be closed down. Further minority educational institutions C
have preferential right to admit students of their own community/language.
No such rights exist so far as non minority educational institutions are
concerned.

Questions Nos. 3 and 4
D
Questions 3 and 4 pertain to private unaided professional colleges.
_, Thus all observations in answer to questions 3 and 4 are therefore confined
to such educational institutions.

In order to answer the third and fourth questions it is necessary to see
the manner in which the majority judgment is framed and to consider certain E
paragraphs of the judgment. The majority judgment considered various aspects
under different heads. The 3rd head is "In case of private institutions, can
there be government regulations and, if so, to what extent?". This is further
divided into four subheadings viz. "Private unaided non minority educational
institutions"; "Private unaided professional colleges"; "Private aided
professional institutions (non minority)" and "Other aided institutions". The F
paragraph which has been strongly relied upon is paragraph 68 which is
under the sub-heading "Private unaided professional colleges". The said
paragraph reads as under:

"68. It would be unfair to apply the same rules and regulations G
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 forgo or discard the principle of merit. It
would, therefore, be pennissible for the university or the government,
at the time of granting recognition, to require a private unaided H
496 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A 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 for by the State/University and have
B applied to the college concerned for admission, while the rest of the
seats may be filled up on the basis of counseling by the state agency.
This will incidentally take care of poorer and backward sections of the
society. The prescription of percentage for this purpose has to be
done by the government according to the local needs and different
c percentages can be fixed for minority unaided and non-minority unaided
and professional colleges. The same principles may be applied to
other non-professional but unaided educational institutions viz.,
graduation and post ·graduation non-professional colleges or
institutes."

D Reliance was also placed on paragraphs 58 and 59 which read as
follows:

"58.For admission into any professional institution, merit must play an
important role. While it may be normally possible to judge the merit
of the applicant who seeks admission into a school, while seeking
E admission to a professional institution and to become a competent
professional, it is necessary that meritorious candidates are not unfairly
treated or put at a disadvantage by preferences shown to less
meritorious but more influential applicants. Excellence in professional
education would require that greater emphasis be laid on the merit of
a student seeking admission. Appropriate regulations for this purpose
F
may be made keeping in view the other observations made in this
judgment in the context of admissions to unaided institutions."

"59.Merit is usually determined for admission to professional and
higher education colleges, by either the marks that the student obtains
at the qualifying examination or school leaving certificate stage followed
G
by the interview, or by a common entrance test conducted by the
institution, or in the case of professional colleges, by government
agencies."

Based on the above paragraphs it had been submitted, on behalf of the Union
H of India, various State Governments and students that the majority Judgment
ISLAMIC ACADEMY OF EDUCATION. 11. STATE [V.N. KHARE, CJ.] 497
makes a clear distinction between professional educational institutions (both A
minority and non minority) and other educational institutions i.e. schools and
undergraduate colleges. The submission was that in professional institutions
merit had to play an important role and that excellence in professional education
required that for purposes of admission merit is determined by Government
agencies. It is submitted that paragraph 68 provides that in unaided professional B
colleges only a "certain" percentage of seats can be reserved for admission
by the management. It is submitted that the said paragraph provides that it
is permissible for the University or the Government to require a private
unaided professional institute to provide for a merit based selection. It was
submitted that paragraph 68, read with paragraph 59, lays down that in
unaided professional colleges merit is to be determined by a common entrance C
test conducted by Government agencies.

Paragraph 68 of the majority judgment in Pai's case can be split into
seven parts :-

Firstly, it deals with the unaided minority or non-minority professional D
colleges. Secondly, it will be unfair to apply the rule and regulations framed
by the State Government as regards the government aided professional colleges
to the unaided professional colleges.

Thirdly, the unaided professional institutions are entitled to autonomy
in their administration; while at the same time they should not forego or E
discard the principles of merit.

Fourthly, it is permissible for the university or the Government at the
time of granting recognition to require an unaided institution to provide for
merit based admission while at the same time giving the management sufficient F
discretion in admitting students.

Fifthly, for unaided non-minority professional colleges certain percentage
of seats can be reserved for admission by the management out of those
students who have passed the common test held by itself or by the State/
University and for applying to the college/university for admission, while the G
rest of the seat may be filled up on the basis of counseling by the State
agency.

Sixthly, the provisions for poorer and backward sections of the society
in unaided professional colleges are also to be provided for.
H

'
498 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A Seventhly; the prescription for percentage of seats in unaided
professional colleges has to be done by the government according to the
local needs. A different percentage of seats for admission can be fixed for
minority unaided and non-minority unaided professional colleges ....

Undoubtedly the majority judgment makes a distinction between private
B unaided professional colleges and other educational institutions i.e. schools
and undergraduate colleges. The subheading "Private unaided professional
colleges" includes both minority as well as non minority professional colleges.
This is also clear from a reading of paragraph 68. It appears to us that this
distinction has been made (between private unaided professional. colleges
C and other educational institutions) as the Judgment recognises that it is in
national interest to have good and efficient professionals. The Judgment
provides that national interest would prevail, even over minority rights. It .is
r,
for this reason that in professional colleges, both minority and non-minority, \..
merit has been made the criteria for admission. However a proper reading, of
paragraph 68, indicates that a further distinction has been made between
D minority and non minority professional colleges. It is provided that in cases
of non minority professional colleges "a certain percentage of seats" can be
reserved for admission by the management. The rest have to be filled up on
,...
bases of counseling by State agencies. The prescription of percentage has
to be done by the Government according to local needs: Keeping this in mind
E provisions have to be made for the poorer. and backward sections of the
society. It must be remembered that, so far as medical colleges are concerned,
an essentiality certificate has to be obtained before the college can be set up.
It cannot be denied that whilst issuing the essentiality certificate the respective
State Governments take into consideration the local needs. These aspects
have been highlighted in a recent decision of this Court in State ofMaharashtra
F V. Medical Association and Ors., [2002] 1 sec 589. Whilst granting the
essentiality certificate the State Government undertakes to take over the
obligations of the private educational institution in the event of that institution
becoming incapable of setting of the institution or imparting education therein.
A reading of paragraphs 59 and 68 shows that in non minority professional
G colleges admission of students, other than the percentage given to the
management, can only be on the basis of merit as per the common entrance
tests conducted by government agencies. The manner in which the percentage
given to the. management can be filled in is set out hereinafter.

Paragraph 68 provides that a different percentage can be prescribed for·
H unaided minority institutions. That the same yardstick cannot be applied to
ISLAMIC ACADEMY OF EDUCATION. v. STATE [V.N. KHARE, CJ.] 499
both minority and non minority professional colleges is also clear from the A
fact that paragraph 68 also falls under main heading "In case of private
institutions, can there be government regulations and, if so, to what extent?".
Paragraph 47, which is one of the first paragraph under this heading, inter-
alia provides as follows:

"It is appropriate to first deal with the case of private unaided B
institutions and private aided institutions that are not administer by
linguistic or religious minorities. Regulations that can be framed relating
to minority institutions will be considered while examining the merit
an effect of Article 30 of the Constitution."

Whilst discussing Article 30 under heading "To what extent the rights of C
aided private minority institutions to administer can be regulated" reliance has
been placed, in the majority Judgment, on previous judgments in the cases
of Re Kera/a Education Bill, AIR (I 958) Supreme Court page 956; Rev
Sidhajbhai v. State of Bombay, [l 963] 3 SCR page 837; Rev Father Proost v.
State of Bihar, AIR (1969) Supreme Court page 465; State of Kera/av. Very D
Rev Mother Provincial, [ l 970] 2 SCC page 417; Ahmedabad St Xaviers College
Society v. State of Gujarat, [1974] l SCC page 717. All the~e cases have
recognised and upheld the rights of minorities under Article 30. These cases
have held that in the guise of regulations, rights under Article 30 cannot be
abrogated. It has been held, even in respect of aided minority institutions that
they must have full autonomy in administration of that institution. It has been E
held that the right to administer includes the right to admit students of their
own community/language. Thus an unaided minority professional college
cannot be in a worse position than an aided minority professional college. It
is for this reason that paragraph 68 provides that a different percentage can
be fixed for unaided minority professional colleges. The expression "different F
percentage for minority professional institutions" carries different meaning
than the expression "certain percentage for unaided professional colleges."
In fixing percentage for unaided minority professional colleges the State must
keep in mind, apart ~rom local needs, the interest/need of that community in
the State. The need of that community, in the State, would be paramount vis-
a-vis the local needs. G
It must be clarified that a minority professional college can admit, in
their management quota, a student of their own community/language in
preference to a student of another community even though that other student
is more meritorious. However, whilst selecting/admitting students of their
H
500 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A community/language the inter-se merit of those students cannot be ignored.
In other words whilst selecting/admitting students of their own community/
language they cannot ignore the inter-se merit amongst students of their
community/language. Admission, even of members of their community/
language, must strictly be on the basis of merit except that in case of their
B own students it has to be merit inter-se those students only. Further if the
seats cannot be filled up from members of their community/language, then the
other students can be admitted only on the basis of merit based on a common
entrance test conducted by government agencies.

That brings us the question as to how the management of both minority
C and non minority professional colleges can admit students in the quota
allotted to them. Undoubtedly the majority Judgment has kept in mind the sad
reality that there are a large number of professional colleges which indulge
in profiteering and/or charging of capitation fees. It is for this reason that the
majority Judgment provides that in professional colleges admission must be
on the basis of mer1t. As has been rightly submitted it is impossible to control
D profiteering/charging of capitation fees unless it is ensured that admission is
on the basis of merit. Also as has been rightly pointed out if a student is
required to appear at more than one entrance test it would lead to great
hardship. The application fees charged by each institute, even though they
may be only Rs. 500 to Rs. 1000 for each institute, would impose a heavy
E burden on the students who will necessarily have to apply to a number of
colleges. Further as has been rightly pointed out, students would have to
arrange for transport from and to and stay at various places if they have to
appear for individual tests conducted by each College. If a student has to go
for test to each institute it is possible that he/she may not be able to reach,
in time, the venue of a test of a particular institute. In our view what is
F necessary is a practical approach keeping in mind the need for a merit based
selection. Paragraph 68 provides that admission by the management can be
by a common entrance test held by "itself or by State/University". The words
"common entrance test" clearly indicate that each institute cannot hold a
separate test. We thus hold that the management could select students, of
G their quota, either on the basis of the common entrance tests conducted by
the State or on the basis of a common entrance test to be conducted by an
association of all colleges of a particular type in that State e.g. medical,
engineering or technical etc. The common entrance test, held by the
association, must be for admission to all colleges of that type in the State.
The option of choosing, between either of these tests, must be exercised
H before issuing of prospectus and after intimation to the concerned authority
ISLAMIC ACADEMY OF EDUCATION. v. STATE [V.N. KHARE, CJ.] 501

and the Committee set up hereinafter. If any professional college chooses not A
to admit from the common entrance test conducted by the association then
that college must necessarily admit from the common entrance test conducted
by the State. After holding the common entrance test and declaration of
results the merit list will immediately be placed on the notice board of all
colleges which have chosen to admit as per this test. A copy of the merit list B
will also be forthwith sent to the concerned authority and the Committee.
Selection of students must then be strictly on basis of merit as per that merit
list. Of course, as indicated earlier, minority colleges will be entitled to fill up
their quota with their own students on basis of inter-se merit amongst those
students. The list of students admitted, along with the rank number obtained
by the student, the fees collected and all such particulars and details as may C
be required by the concerned authority or the Committee must be submitted
to them forthwith. The question paper and the answer papers must be preserved
for such period as the concerned authority or Committee may indicate. If it
is found that any student has been admitted de-hors merit penalty can be
imposed on that institute and in appropriate cases recognition/affiliation may
also be withdrawn. D
At this juncture it is brought to our notice that several institutions,
have since long, had their own admission procedure and that even though
they have been admitting only students of their own community no finger has
ever been raised against them and no complaints have been made regarding E
fairness or transparency of the admission procedure adopted by them. These
institutions submit that they have special features and that they stand on a
different footing from other minority non-aided professional institutions. It is
submitted that their cases are not based only on the right flowing from Article
30(1) but in addition they have some special features which requires that they
be permitted to admit in the manner they have been doing for all these years. F
A reference is made to few such institutions i.e. Christian Medical College,
Vellore, St. Johns Hospital, Islamic Academy of Education etc . The claim of
these institutions was disputed. However we do not think it necessary to go
into those questions. We leave it open to institutions which have been
established and who have had their own admission procedure for, at least, the G
last 25 years to apply to the Committee set out hereinafter.

Lastly, it must be mentioned that it was urged by learned counsel for
the appellant that paragraph 68 of the majority judgment only permits
University/State to provide for merit based selection at the time of granting
recognition/affiliation. It was also submitted that once recognition/affiliation H
502 SUPREME COURT REPORTS (2003] SUPP. 2 S.C.R.

A is granted to unaided professional colleges, such a stipulation cannot be
provided subsequently. We are unable to accept this submission. Such a
provision can be made at the time of granting recognition/affiliation as well
as subsequently after the grant of such recognition/affiliation:

We now direct that the respective State Government do appoint a
B permanent Committee which will ensure that the tests conducted by the
association of colleges is fair and transparent. For each State a separate
Committee shall be formed. The Committee would be headed by a retired
Judge of the High Court. The Judge to be nominated by the Chief Justice of
that State. The other member, to be nominated by the Judge, would be a
C doctor or an engineer of eminence (depending on whether the institution is
medical or engineering/technical). The Secretary of the State in charge of
Medical or Technical Education, as the case may be, shall also be a member
and act as Secretary of the Committee. The Committee will be free to nominate/
co-opt an independent person of repute in the field of education as well as
one of the Vice Chancellors of University in that State so that the total number
D of persons on the Committee do not exceed five. The Committee shall have
powers to oversee the tests to be conducted by the association. This would
include the power to call for the proposed question paper/s, to know the
names of the paper setters and examiners and to check the method adopted
to ensure papers are not leaked. The Committee shall supervise and ensure
E that the test is conducted in a fair and transparent manner. The Committee
shall have power to permit an institution, which has been established and
· which has been permitted to adopt its own admission procedure for the last,
at lellst, 25 years, to adopt its own admission procedure and ifthe Committee
feels that the needs of such an. institute are genuine, to admit, students of
their community, in excess of the quota allotted to them by the State
F Government. Before exempting any institute or varying in percentage of quota
fixed by the State, the State Government must be heard before the Committee.
It is clarified that different percentage of quota for students to be admitted
by the management in each minority or non-minority unaided professional
college/s shall be separately fixed on the basis of their need by the respective
G State Governments and in case of any dispute as regards fixation of percentage
of quota, it will be open to the management to approach the Committee. It is
also clarified that no institute, which has not been established and which has
not followed its own admission procedure for the last, at least, 25 years, shall
be permitted to apply for or be granted exemption from admitting students in
the manner set out hereinabove.
H
ISLAMIC ACADEMY OF EDUCATION. v. STA TE [S.B. SINHA, J.] 503
Our direction for setting up two sets of Committees in the States has A
been passed under Article 142 of the Constitution of India which shall remain
in force till appropriate legislation.is enacted by the Parliament. The expenses
incurred on the setting up of such Committees shall be borne by each State.
The infrastructural needs and provision for allowance and remuneration of the
Chairman and other members of the Committee shall also be borne by the B
respective State Government.
So far as the year 2003-2004 is concerned, time is running out as the
outer time limit for admission is fast approaching or nas gone. To meet the
urgent situation without going into the issues involved in the various petitions/
applications, we direct that the seats be filled up by the· institution and the
State Governments in the ratio 50:50. However, if by any interim order, this C
Court has permitted any institution to fill up a higher percentage of seats and
the seats have been filled up accordingly, the same shall not be disturbed.
It is made clear that due to the time constraint this arrangement has been
made, without deciding the contentious issue involved in various pending
• cases. D
With these clarifications we now direct that all the matters be placed
before the regular benches for disposal on merits.
All Interlocutory applications as regard interim matters stand disposed
of.
E
S.B. SINHA, J.

INTRODUCTORY REMARKS :

Imparting of education is a State function. The State, however, having
regard to its financial and other constraints is not always in a position to F
perform its duties. The function of imparting education has been, to a large
extent, taken over by the citizens themselves. Some do it as pure charity;
some do it for protection of their minority rights whether based on religion
or language; and some do it by way of their "occupation". Some such
institutions are aided by the State and some are unaided.

Privately managed educational institutions imparting professional G
education in the fields of medicine, dentistry and engineering have spurted
in the last few decades. The right of the minorities to establish an institution
of their own choice in terms of clause (I) of Article 30 of the Constitution of
India is recognized; so is the right of a citizen who intends. to establish an
institution under Article 19(1 )(g) thereof. However, the fundamental right of H
504 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A a citizen to establish an educational institution and in particular a professional
institution is not absolute. These rights are subject to regulations and laws
imposing reasonable restrictions. Such reasonable restrictions in public interest
can be imposed under clause (6) of Article 19 and regulations under Article
30 of the Constitution of India. The right to establish an educational institution, •
although guaranteed under the Constitution, recognition or affiliation is not.
B Recognition or affiliation of professional institutions must be in terms of the
statute.

Entry 66 of List I and Entry 25 of List III of the Seventh Schedule of
the Constitution of India provide for legislative field in this behalf. Various
C States have enacted laws for regulating admission and prohibiting charging
of capitation fee. The said legislations also provide for employment of teachers,
their conditions :of service, discipiine in institution and several other matters.
Such regulatory measures have been the subject matter of various decisions
of this Court.

D BACKGROUND:
...
This Court in Unni Krishnan JP.and Ors. v. State of Andhra Pradesh
and Ors., (1993] 1 SCC 645 laid down a Scheme. In terms of the said Scheme
the self-financed institutions were entitled to admit 50% of students of their
choice, whereas rest of the seats were to be filled in by the State. For
E admission of students, a common entrance test was to be held. Provisions for
free seats and payment seats were made therein. The State and various
statutory authorities including the Medical Council of India, University Grants
Commission and All India Council for. Technical Education made and/or
amended regulations so as to bring them at par with the said Scheme.

F The Islamic Academy of Education filed a writ petition in the year 1993
questioning the validity thereof. The said writ petition along with connected
matters were placed before a Bench of five Judges, which was prima facie of
the view that Article 30 of the Constitution of India did not clothe minority
educational institutions with the power to adopt its own method of selecting
students.
G
This Court in T.M.A. Pai Foundation and Ors. v. State of Karnataka
and Ors., [2002] 8 SCC 489 noticed the same stating :

"The hearing of these cases has had a chequered history. Writ Petition
No. 350 of 1993 filed by the Islamic Academy of Education and
H connected petitions were placed before a Bench of 5 Judges. As the
ISLAMIC ACADEMY OF EDUCATION. v. STATE [S.B. SINHA, J.] 505
Bench was prima facie of the opinion that Article 30 did not clothe A
a minority educational institution with the power to adopt its own
method of selection and the correctness of the decision of this Court
... in St. Stephen's College v. University of Delhi, [1992] I SCC 558 was
doubted, it was directed that the questions that arose should be
authoritatively answered by a larger Bench. These cases were then B
placed before a Bench of 7 Judges. The questions framed were recast
and on 6th February, 1997, the Court directed that the matter be placed
a Bench of at least 11 Judges, as it was felt that in view of the Forty-
Second Amendment to the Constitution, whereby "education" had
been included in Entry 25 of List Ill of the Seventh Schedule, the
question of who would be regarded as a "minority" was required to C
be considered because the earlier. case laws related to the pre-
amendment era, when education was only in the State List. When the
cases came up for hearing before an eleven Judge Bench, during the
course of hearing on 19th March, 1997, the following order was
passed:-
D
"Since a doubt has arisen during the course of our arguments
as to whether this Bench would feel itself bound by the ratio
propounded in - In Re Kerala Education Bill, 1957 (1959
SCR 955) and the Ahmedabad St. Xavier's College Society
v. State o/Gujarat, [1975] 1 SCR 173, it is clarified that this E
sized Bench would not feel itself inhibited by the view£
expressed in those cases since the present endeavour is to
discern the true scope and interpretation of Article 30( l) of
the Constitution, which being the dominant question would
require examination in its pristine purity. The factum is
recorded." F
The eleven Judge Bench answered various questions raised therein.

The petitioners/applicants before us are private unaided institutions.
Most of them have been established by a Society, Trust or persons belonging
to the minority community based on religion or language. G
By reason of the impugned legislations/ Government orders, the State
Governments, inter alia, while seeking to lay down the government quota in
relation to such unaided institutions, directed that while filling up the same,
the self-financed institutions must follow the merit list prepared by the State
on the basis ofExtemal Common Entrance Test (CET). The State Governments H
506 SUPREME COURT REPORTS (2003] SUPP. 2 S.C.R.

A also fixed/regulated fees to be charged from the students by such institutions.
Validity or otherwise of the said rules/regulations/ Governmental Orders
came up for consideration before several High Courts. Different High Courts
in their Orders while granting interim reliefs, construed the judgment of this
Court in T.MA. Pai Foundation (supra) differently. The perceptions of the
B States as also the High Courts in reading the judgment are widely varied. In
the aforementioned situation, several applications have been filed in the
matters which were disposed of by the I I-Judge Bench of this Court. Some
institutions as also the State of Kerala had also filed Special Leave Petitions
against the interim orders passed by the High Courts. Some writ petitions
C under Article 32 of the Constitution of India have also been filed. Keeping
in view the importance of the question, this Court issued notices to all the
State Governments.

In the Special Leave Petitions and the Writ Petitions several other
questions have also been raised but as at present advised this Bench intends
D to confine itself to the interpretation of judgment of this Court in T.MA. Pai
Foundation (supra) leaving other questions open for consideration by the
appropriate benches.

In these matters this Court is not at all concerned with the rights of the
aided minority and non-minority institutions and restrictions imposed by the
E States .upon them but we are concerned only with the rights and obligations
of private unaided institutions run by the minorities and non-minorities.

SUBMISSIONS MADE 01'! BEHALF OF WRIT PETITIONERS -APPLICANTS:

It was urged that while interpreting the judgment, this Court should
F bear in mind the salient aspects of the findings in T.M.A. Pai (supra) that is
to say :

ON THE FUNDAMENTAL RIGHTS OF EDUCATION AL
INSTITUTIONS:

(i) Citizens have a fundamental right to establish and administer
G
educational instituti.ons under Article 19( 1)(g), 21, 26 and 30
of the Constitution (Paras 2:5 & 26) and, thus, the said rights
cannot be taken away/ restricted.

(ii) Such a fundamental right extends to education at all levels
H including professional education. (Para 161)
ISLAMIC ACADEMY OF EDUCATION. v. STATE [S.B. SINHA, J.J 507

(iii) The right to establish and administer educational institutions A
comprises of the right to

(a) admit students
. (b) set up a reasonable fee structure

(c) constitute a governing body B
(d) appoint staff and take disciplinary action (Para 50)

(iv) Although such rights are subject to reasonable restrictions, but
the same must be for the betterment of the institution and as
such the right under Article 19(1 )(g) and Article 30 cannot be c
undermined. (Paras 135-138)
(v) Restrictions can be imposed only at the time of grant of
recognition or affiliation of the institutions and not thereafter.
(vi) The right of the citizens vis-a-vis the ~inority communities must
be judged keeping in view the distinction between D
(a) unaided and aided institutions

(b) minority and non-minority institutions (Paras 46-73);

II. ON THE DEGREE OF CONTROL
E
It was contended that although some amount of regulation/ control is
permissible but the validity thereof is required to be considered:

(i) In the light of the decision of this Court that the Scheme framed
iri Unnikrishnan has been abolished and consequent directions F
issued on the basis thereof by the UGC, AICTE, MCI, Central
and State Governments etc. have been held to be invalid. (Para
45)
'·
(ii) While exercising the power of control, it is impermissible to
nationalize education particularly with regard to the right of
minorities to admit members of their own community as also G
fixing the fee. (Para 38) Minority institutions are not to subsidize
the State nor any principle of cross-subsidy can be deciphered
therefrom.

(fu) In the case of unaided institutions, maximum autonomy has to be
conceded as contradistinguished from the power of the State to H
508 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A exercise more control over unaided institutions but even in relation
thereto, aided institutions should not be treated to be wholly
owned or controlled by the State cir their Departments. (Paras 55,
61, 62 & 72)
.
(iv) Such a right of control over the aided institutions inheres for the
B purpose of oversight and restraints so as to

(a) ensure proper utilization of funds (Para 143)

(b) pennit the Government to have some seats to the extent of
its reservation policy (Paras 42-44).

c (v) Although the aided institutions are subject to clause (2) of Article
29 and clause (3) of Article 28 of the Constitution, but the
unaided minority institutions being not so subject would not be
bound by the restraints emanating therefrom so long they exercise
their right to admit and select students in a transparent and non-
arbitrary manner; .
D
Ill. ON ADMISSION OF STUDENTS BY UNAIDED INSTITUTIONS

(i) Unaided institutions have an unbridled right on admission of
students, comprising of devising a test for selecting students of
their choice (Para 36, 40-41, 50). Such a right emanates from the
E principle that every private and public owner of an institution has
the power to admit qualified students of their own choice (Para
42-44).
. (ii) As such a right also emanates with a view to maintain the
atmosphere and traditions of the private educational institutions,
F the general principles for unaided institutions would also apply
to unaided professional institutions. The right of option either to
select their candidates from the Government CET test or its own
test is absolute and the ultimate decision in this behalf rests with
the institutions whereas aided institutions can be compelled to
follow the CET test devised by the Government or the University.
G
(iii) Whereas such a test and devising a system on the part of the
unaided institutions cannot be based on fancy and whims but
once "some identifiable or reasonable methodology" usually ori
merit is adopted, the right to select qualified students on a fair
and' discernable basis cannot be interfered with (Para 65).
H
ISLAMIC ACADEMY OF EDUCATION. v. STATE [S.B. SINHA, J.] 509
IV. ON THE NATURE AND EXTENT OF THE GOVERNMENT QUOTA FOR A
UNAIDED INSTITUTIONS

(i) It is contended that the Government cannot have a quota in this
..,.
regard as the institutions are unaided. Having regard to the fact
that if such government quota is allowed, the same would destroy
not only the concept of unaided institutions but right to exercise B
maximum autonomy especially in the matter of selection of students
and fees would be impaired.
(ii) Such a right must be construed having regard to the extent of
control over the aided institution.
(iit) Admission to a small percentage for weaker sections which the
c
unaided institutions are required to follow by way of implication
rules out enforcement of any reservation policy of the State as
the same would run counter to the decision of this Court in The
Ahmedabad St. Xavier's College Society and Anr. v. State of
GujaratandAnr., (1974] l SCC717. D
(iv) In any event, the direction to determine a small percentage of
persons drawn from the weaker sections of the society should be
left with the management, which would include the weaker sections
of the minority community for which such institution has been
established. E
(v) It is for an unaided institution to volunteer to provide scholarship
or freeship to the students of weaker sections so long they are
meritorious students (Para 37, 53, 61 & 68)
(vi) Since weaker sections form a special category, they cannot be
selected either on the basis of : F
~· (a) reservation policy of the State
.i,.
(b) regional affiliation or residence within the State

(c) religion.
G
(vii) For the said purpose also, the social and educational backwardness
of the area or the regions entitling such inclusion on the
touchstone of compelling necessities of the State will have to be
taken into consideration.

(viii) In any event, reservation for weaker sections cannot be greater H
510 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A than 50% of the total in any batch after taking into account the
reservation for SC, ST and OBC.
(ix) The unaided institutions cannot be subject to onerous financial
impositions nor can they be asked to perfonn the functions of the
State. (Para 61)
B (x) In· any event, the quota policy cannot be imposed on unaided
institutions to the extent of laying down standards of a reasonable
nature that do not cut down its operational autonomy and financial
independence. (Paras 36, 40, 43, 53, 59, 65).

c v. FEE FIXATION FOR UNAIDED INSTITUTIONS

As unaided institutions are to be given maximum autonomy in the
matter of fixation of fee, there cannot be :

(a) a rigid fee structure (para 54)

D (b) Such fees are to be fixed by the unaided institutions (Para 56, 57).
(c) The only impediment in this behalf is that no capitation fee can
be charged nor the institutions can take recourse to profiteering
since education is charitable in nature. Therefore a reasonable
revenue surplus for the purpose of development of education
and expansion of education would be pennissible (Para 57). While
E
restricting charging the capitation fee and profiteering, this Court
had merely directed· that such institutions make no undue,
.excessive or illegal profits and thereby a reasonable profit is
pennitted.
(d) Only because fee is to be charged on a reasonable development
F profit basis, the same would not result in decline in standard or
amount to capitation. (Para 61 ).
(e) Students of weaker sections when admitted may be granted
freeships and scholarships (Para 53).
G (f) For the purpose of finding out as to who would be the students
belonging to the weaker sections of the community, local needs
and other needs must be taken into consideration.

The judgment of this Court in T.M.A. Pai Foundation (supra) is to be
construed having regard to the following principles:
H
ISLAMIC ACADEMY OF EDUCATION.1•. STATE (S.B. SINHA, J.] 51 \
(a) Its ratio must be found in the answers ultimately given. A
(b) A judgment has to be read as a whole and in such a manner so
that all parts of a judgment dealing with a particular point are
provided with a meaning. The regulations imposing restrictions
must be read in such a fashion so that maximum autonomy of the
unaided institutions are preserved and respected. B
SUBMISSIONS MADE ON BEHALF OF STATES/CENTRAL GOVERNMENT/
STATUTORY AUTHORITIES

(i) The right of citizens including the minority communities whether
based on any religion or language contained in Article 19(1 )(g) C
and Article 30(1) is not absolute but is subject to reasonable
restrictions.
(ii) Regulations restricting the right of minority to admission of
students are necessary for maintenance of proper academic
standards, atmosphere and infrastructure (including qualified staff) D
and for prevention of mal-administration (Para 54).
(iii) Since education in a sense is regarded as charitable, unaided
institutions cannot charge a hefty fee which would not be required
for the purpose of fulfilling the object for which the institutions
are established nor by reason thereof they can take recourse to
profiteering (Para 57.) E
(iv) As merit is usually detennined by either the marks of the students
obtained at the qualifying examination or school leaving certificate
stage followed by the interview or by a common entrance test
conducted by the institution, the State while framing regulation
has the requisite jurisdiction to issue necessary directions in this F
behalf so that merit is not sacrificed (Para 58-59).
(v) The plea of the minority institutions to the effect that their right
to admit or reject students is absolute would not be in consonance
with the direction issued in para 68 whieh provides for
G
(a) a system to provide merit based selection while granting
sufficient discretion to the management

(b) As certain percentage of seats have to be reserved for the
management, the rest can be filled up on the basis of
counseling by' the State agencies which would take care of H
512 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A poorer and backward sections of the society. The prescription
of the percentage for the said purpose must be left with the
State (Para 68).

(vi) Professional institutions must apply a more rigorous test, which
would be subject to greater regulation by the State or by the
B University. (Answer to Question No. 4).

(vii) As the State whil~ granting essentiality certificate is to consider
the local needs and further guarantee smooth functioning of
such institutions failing which the State has to adjust the students
of the institutions to their own institution·s, it has a great stake
in the matter. Choice and selection of students in professional
courses are directly linked with maintaining the standards of
medical education. ·

(viii) If a free hand is given to all the private medical, dental, engineering
and other professional colleges to hold their own test, having
D regard to the time schedule framed by this Court for holding
examinations in the 15% All India quota as also the All India test
held by AIIMS, CBSE, JIPMER, AFMC etc. the students would
be deprived from appearing at the examinations if tests are held
throughout the country and they will have to incur huge
expenditure for purchasing application fonns which are priced at
E Rs. 500 to Rs. 1000/- as also by way of travelling, boarding and
lodging so as to enable them to appear at various ex;iminations.
More than one examination may be held on the same day or in
such near proximity that traveling from one place to another
would become virtually impossible. The methodology, thus, must
be adopted so as to minimize the inconvenience caused to a
F
majority of the students so. that they can appear at many
examinations by incurring a reasonable expenditure.
(ix) It is a common knowledge that although not tenned as capitation
fee a large number of unaid~d institutions are selling their seats,
which mu~t not be allowed to continue, and must be curbed with
G
heavy hands.
(x) In pursuit of its objective of State Policy having regard to Articles
38, 41 & 46 which are in terms of Article 37 thereof, which are
fundamental in governance of the country it is necessary to
provide for a common examination so that the rights of the inter
H
ISLAMIC ACADEMY OF EDUCATION. v. STATE [S.B. SINHA, J.] 513
se minorities and inter se weaker sections can be taken care of A
in terms of para 68 of the judgment.

(xi) The directions issued by this Court to unaided professional
institutions contained in paras 67 and 68 only are to be given
effect to although the Bench referred to professional colleges
also in paras 58 and 59 of the judgment. B·
OVERVIEW OF THE JUDGMENT INT.MA. PAI FOUNDATION:

The right to establish an institution is provided for in Article 19( l )(g)
of the Constitution of India. Such a right, however, is subject to reasonable
restrictions, which may be brought about in terms of Clause (6) thereof. C
Minorities whether based on religion or language, however, have a
fundamental right to establish and administer educational institutions of their
own choice. The right under clause (1) of Article 30 is not absolute; and
subject to reasonable regulations while inter alia may be framed having regard
to the public interest and national interest of the country. Regulations can D
also be framed to prevent maladministration as also for laying down the
standard of education, teaching, maintenance of discipline, public order, health,
""'
morality, etc.

UNNI KRISHNANAN, J.P.
E
This Court in Unni Krishnan (supra) while framing the scheme directed:

(a) that a professional college should be established and/or
administered only by a Society registered under the Societies
Registration Act, 1860, or the corresponding Act of a State, or
by a Public Trust registered under the Trusts Act, or under the F
Wakfs Act, and that no individual, firm, company or other body
of individuals would be permitted to establish and/or administer
a professional college.

(b) that 50% of the seats in every professional college should be
filled by the nominees of the Government or University, selected G
on the basis of merit determined by a common entrance
examination, which will be referred to as "free seats"; the remaining
50% seats ("payment seats") should be filled by those candidates
who pay the fee prescribed therefor, and the allotment of students
against payment seats should be done on the basis of inter se H
514 SUPREME COURT REPORTS (2003) SUPP. 2 S.C.R.

A merit determined on the same basis as in the case of free seats.
(c) that there should be no quota reserved for the management or
for any family, caste or community, which may have established
such a college.
(d) that it should be open to the professional college to provide for
B reservation of seats for constitutionally permissible classes with
the approval of the affiliating university.
(e) that the fee chargeable in each professional college should be
subject to such a ceiling as may be prescribed by the appropriate
authority or by a competent court.
c (t) that every State government should constitute a committee to fix
the ceiling on the fees chargeable by a professional college or
class of professional colleges, as the case may be. This committee
should, after hearing the professional colleges, fix the fee once
every three years or at such longer intervals, as it may think
D appropriate.
(g) that it would be appropriate for the University Grants Commission fl
to frame regulations under its Act regulating the fees that the
affiliated colleges operating on a no grant-in-aid basis were entitled
to charge. The AICTE, the Indian Medical Council and the Central
E Government were also given similar advice. The manner in which
the seats to be filled on the basis of the common entrance test
was also indicated.

In T.MA. Pai Foundation (supra) the Scheme framed by this Court
restricting the right of the citizen to establish private unaided institutions
F including minority institutions and manage the same was held to be
unconstitutional stating : (I) The Scheme enforced by the State Governments
in relation to privately managed institutions would not be a reasonable
restriction within the meaning of Article 19(6) of the Constitution of India as
it resulted into revenue shortfalls making it difficult for the educational
G institutions; (2) the provision made for free seats and payment seats amounted
to subsidising education of one segment of sqciety at the cost of other which
was unreasonable having regard to the fact that higher education has been
held not to be a fundamental right.

All orders and directions issued by the State pursuant to or in furtherance
H of th(! directions in Unnikrishnan are, thus, also unconstitutional.
ISLAMIC ACADEMY OF EDUCATION. v. STATE [S.B. SINHA, J.] 515

ST. STEPHEN'S COLLEGE: A
The right of a minority educational institution to adopt its own method
of selection is subject to the restrictions contained in clause (2) of Article 29
of the Constitution of India, if the institution is an aided one. It was held that
allowing minority educational institutions to select its own method of selection
for admission of students to the extent of 50% of the seats would not impinge B
upon the right under Article 30 of the Constitution oflndia. It was further held
that regulations can be imposed by the State for intake of minority categories
with regard to need of the minority in the area which the institution intends
to serve.

A question, however, arose therein as to whether the State could impose C
regulatory measures on the institutions run by the minority community which
provides for admission by conducting interviews but not solely on the marks
obtained in the qualifying examination? In that case, the State had imposed
restrictions on the college management compelling it to make admission
exclusively on the basis of marks obtained in the qualifying examination. But D
the management, in addition to the marks obtained by the students, also
conducted interviews for making admission to the college. This Court observed
that the denial of power to St. Stephen's College to conduct interviews to
select candidates for admission would be violative of the rights of the minority
community guaranteed under Article 30(1) of the Constitution. It was held
that, any regulatory measure imposed by the State on the minority institutions E
should be beneficial to the institution or for the betterment of those who join
such institutions.

In T.MA. Pai Foundation (supra) while upholding the judgm,'lt in St.
Stephen's (supra), that part of the direction whereby the right of the minority F
institutions were confined to 50% of the seats was held to. be bad.

From the above decisions of this Court, it is evident that though the
right engrafted under Article 30(1) of the Constitution does not lay down any
.- limitations or restrictions upon the right of a minority to administer its
educational institutions, yet the right cannot be used absolutely and G
unreasonably.

QUESTIONS POSED INT.MA. PAI FOUNDATION:

In T.M.A. Pai Foundation (supra), the Bench framed the following
questions: H
516 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A I. What is the meaning and content of the expression "minorities" in
Article 30 of the Constitution of India?

2. What is meant by the expression "religion" in Article 30(1)? Can the
followers of a sect or denomination of a particular religion claim
protection under Article 30(1) on the basis that they constitute a
B minority in the State, even though the followers of that religion are
in majority in that State?

3. (a) What are the indicia for treating an educational institution as a
minority education institution? Would an institution be regarded as a
minority educational institution because it was established by a
C person(s) belonging to a religious or linguistic minority or its being
administered by a person(s) belonging to a religious or linguistic
minority?

(b) To what extent can professional education be treated as a matter
coming under minorities' rights under Article 30?
D
4. Whether the admission of students to minority educational
institution, whether aided or unaided, can be regulated by the State
Government or by the university to which the institution is affiliated?

5. (a) Whether the minorities' rights to establish and administer
E educational institutions of their choice will include the procedure and
method of admission and selection of students?

(b) Whether the minority institutions' right of admission of students
and to lay down procedure and method of admission, if any, would
be affected in any way by the receipt of State aid?
F
(c) Whether the statutory provisions which regulate the facets of
administration like control over educational agencies, control over
governing bodies, conditions of affiliation including recognition/
withdrawal thereof, and appointment of staff, employees, teachers and
principals including their service conditions and. regulation of fees,
G etc. would interfere with the right of administration of minorities?

6. (a) Where can a minority institution be operationally located? Where·
a religious or linguistic minority in State 'A' establishes an educational
institution in the said State, can such educational institution grant
preferential admission/reservations and other benefits to members of
H the religious/linguistic group from other States where they are non-
ISLAMIC ACADEMY OF EDUCATION. v. STATE [S.B. SINHA, J.] 517
minorities? A
(b) Whether it would be correct to say that only the members of that
minority residing in State 'A' will be treated as the members of the
minority vis-a-vis such institution?

7. Whether the member of a linguistic non-minority in one State can B
establish a trust/society in another State and claim minority status in
that State?

;. Whether the ratio laid down by this Court in St. Stephen's case (St.
Stephen's College v. University of Delhi) is correct? Ifno, what order?

9. Whether the decision of this Court in Unni Krishnan, J.P. v. State C
of A.P. (except where it holds that primary education is a fundamental
right) and the scheme framed thereunder require reconsideration/
modification and if yes, what?

10. Whether the non-minorities have the right to establish and
administer educational institution under Articles 21 and 29( l) read D
with Articles 14 and 15(1), in the same manner and to the same extent
as minority institutions? and

11. What is the meaning of the expressions "education" and
"educational institutions" in various provisions of the Constitution? E
Is the right to establish and administer educational institutions
guaranteed under the Constitution?

The Bench did not answer 4 out of 11 questions. The Hon 'ble Chief
Justice, B.N. Kirpal delivering the majority judgment consider~d the
questions answered by the Bench under the following headings:
F
l. Is there a fundamental right to set up educational institutions and
if so, under which provision?

2. Does the judgment in Unni Krishnan case require reconsideration?

3. In case of private unaided institutions can there be government G
regulations and if so to what extent?

4. In determining the existence of a religious or linguistic minority, in
relation to Article 30, what is to be the unit, the State or country as
a whole? and
H
·-
518 SUPREME COURT REPORTS (2003) SUPP. 2 S.C.R.

A 5. To what extent can the rights of aided minority institutions to
administer be regulated?

We are not concerned with the subject under heading I. The core issues
in this matter revolve around headings 2, 3 and 5 aforementioned.

B We. are, thus, concerned in this case with Question No. 3(b), 4, 5(a),
5(b), 5(c) and 9.

The answers to the relevant questions are in the following tenns:

A.3(b) Article 30(1) gives religious and linguistic minorities the right
C to establish and administer educational institutions of their choice.
The use of the words "of their choice" indicates that even professional
educational institutions would be covered by Article 30.

A.4 Admission of students to unaided minority educational
institutions, viz., schools and undergraduate colleges where the scope
D for merit-based selection is practically nil, cannot be regulated by the
State or University concerned, except for providing the qualifications
and minimum conditions of eligibility in the interest of academic
standards.

The right to admit students being an essential facet of the right to
E administer educational institutions of their choice, as contemplated
under Article 30 of the Constitution, the state government or the
university may not be entitled to interfere with that right, so long as
the admission to the unaided educational institutions is on a
transparent basis and the merit is adequately taken care of. The right
to administer, not being absolute, there could be regulatory measures
F for ensuring educational standards and maintaining excellence thereof,
and it is more so in the matter of admissions to professional institutions.

A minority institution does not cease to be so, the moment ,grant-in-
aid is received by the institution. An aided minority educationttl
institution, therefore, would be entitled to have the right of admission
G of students belonging to the minority group and at the same time,
would be required to admit a reasonable extent of non-minority
students, so that the rights under Article 30(1) are not substantially
impaired an·d further the citizens' rights under Article 29(2) are not
infringed. What would be a reasonable extent, would vary from the
H. types of institution, the courses of education for which admission is
1

ISLAMIC ACADEMY OF EDUCATION. v. STATE [S.B. SINHA, J.] 519
being sought and other factors like educational needs. The State A
Government concerned has to notify the percentage of the non-
minority students to be admitted in the light of the above observations.
Observance of inter se merit amongst the applicants belonging to the
minority group could be ensured. In the case of aided professional
institutions, it can also be stipulated that passing of the common B
entrance test held by the state agency is necessary to seek admission.

.
'
As regards non-minority students who are eligible to seek admission
for the remaining seats, admission should n\lrmally be on the basis of
the common entr!lnce test held by the state agency followed by
counselling· wlia~ver it e"ists.

A.5(a) A minority institution may have its own procedure and method C
of admission as well as selection of students, but such a procedure
must be fair and transparent, and the selection of students in
professional and higher education colleges should be on the basis of
merit. The procedure adopted or selection made should not be
tantamount to mal-administration. Even an unaided minority institution D
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.

A.5(b) While giving aid to professional institutions, it would be
permissible for the authority giving aid to prescribe bye-rules or E
regulations, the conditions on the basis of which admission will be
granted to different aided colleges by virtue of merit, coupled with the
reservation policy of the state qua non-minority students. The merit
may be determined either through a common entrance test conducted
by the University or the Government concerned followed by counselling, F
or on the basis of an entrance test conducted by individual institutions
- the method to be followed is for the university or the government
to decide. The authority may also devise other means to ensure that
admission is granted to an aided professional institution on the basis
of merit.. In the case of such institutions, it will be permissible for the
government or the university to provide that consideration should be G
shown to the weaker sections of the society.

A.5(c) So far as the statutory provisions regulating .the facets of
administration are concerned, in case of an unaided minority
educational institution, the regulatory measure of control should be
minimal and the conditions of recognition as well as the conditions H
\
520 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A of affiliation to an university or board have to be complied with, but
in the mat,ter of day-to-day management, like the appointment of staff,
teaching and non-teaching, and administrative control over them, the
management should have the freedom and there should not be any .
external controlling agency. However, a rational procedure for the
selection of teaching staff and for taking disciplinary action has to be
evolved by the management itself. ··

For redressing the grievances of employees of aided and unaided .,
institutions who are subjected to punishment or termination from
service, a mechanism will have to be evolved, and in our opinion,
appropriate tribunals could be constituted, and till then, such tribunals
c could be presided over by a Judicial Officer of the rank of District
Judge.
I ,
The State or other controlling authorities, however, can always

-
prescribe the minimum qualification, experience and other conditions
bearing on the merit of an individual for being appointed as a teacher
D
or. a principal of any educational institution.

Regulations can be framed governing service conditions for teaching
and other staff for whom aid is provided by the State, without
interfering with the overall administrative control of the management
over the staff.
E
Fees to be charged by unaided institutions cannot be regulated but
no institution should charge capitation fee.

A.9 The scheme framed by this Court in l!nni Krishnan case and the
. direction to impose the same, except where it holds that primary
F education is a fundamental right, is unconstitutional. However, the
principle that there should not be capitation fee or profiteering is
correct. Reasonable surplus to meet cost of expansion and augmentation
of facilities does not, however, amount to profiteering.

The conflict has to be resolved keeping the aforementioned findings in
G view.
CORE QUESTIONS :

(i) Whether unaided professional institutions are entitled to lay
down their own fee structure?
H
ISLAMIC ACADEMY OF EDUCATION. v. STATE [S.B. SINHA, J.] 521
(ii) Whether in view of the judgment of this Court in T.M.A. Pai A
Foundation (supra) private and unaided professional institutions
are entitled to have their own admission programme?

(iii) Whether the State Governments are entitled to lay down the
quota of total seats to be filled up by the management?
B
RELEVANT FINDINGS OF THIS COURT IN T.M.A. PAI FOUNDATION

The right to establish and administer educational '.'.1stitutions was held
to be guaranteed to citizens under Article 19( 1)(g) of the Constitution of India
and to the minorities under Article 30.

One of us (Chief Justice Khare) while agreeing with the majority delivered
c
a separate opinion relating to aided minority institutions and non-minority
institutions as also interpretation of the right of the minorities under Clause·
(1) of Article 30 vis-a-vis clause (2) of Article 29 and held that such right is
limited by the conditions laid down in clause (2) of Article 29 and clause (3)
of Article 28. D
Quadri, J. agreed with the aforementioned view stating:

"259. In regard to the minorities seeking recognition and/or aid it was
observed in Kera/a Education Bill, (1957) AIR (1958) SC 956 : 1959
SCR 995 that the minorities cannot surely ask for aid or recognition E
for an educational institution run by them in unhealthy surroundings,
without any competent teachers, possessing any semblance of
qualification, and which does not maintain even a fair standard of
teaching or which teaches matters subversive of the welfare of the
scholars. In such matters, "the State can insist that in order to grant
aid the State may prescribe reasonable regulations to ensure the F
excellence of the institutions to be aided", (emphasis applied) Thus,
it is clear that regulations postulated for granting recognition or aid
ought to be with regard to the excellence of education and efficiency
of administration viz. to make certain healthy surroundings for the
institutions, existence of competent teachers possessing requisite G
qualifications and maintaining fair standard of teaching. Such
regulations are not restrictions on the right but merely deal with the
aspects of proper administration of an educational institution, to ensure
excellence of education and to avert maladministration in minority
educational institutions and will, therefore, be pennissible. This is on
the principle that when the Constitution confers a right, any regulation H
522 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A .frart.ed by the State in that behalf should be to facilitate exercise of
that right and not to frustrate it."

Pal, J. also agreed with the said view stating:

"Similarly, the Constitution has also carved out a further exception to
B Article 29(2) in the form of Article 30(1) by recognising the rights of
special classes in the form of minorities based on language or religion
to establish and administer educational institutions of their choice.
The right of the minorities under Article 30(1) does not operate as
discrimination against other citizens only on ·the ground of religion or
language. The reason for such classification is not only religion or
c language per se but minorities based on. religion and language.
Although, it is not necessary to justify a classification made by the
Constitution, this fact of 'minorityship' is the obvious rationale for
making a distinction, the underlying assumption being that minorities
by their very numbers are in a politically disadvantaged situation and
D require special protection at least in the field of education.

Articles 15(4), 337 and 30 are therefore facets of substantive equality
by making special provision for special classes on special
considerations."

E One of us (Variava, J.) speaking for himself and Bhan, J. agreed with the
majqrity but thought it appropriate that a mechanism therefor should be set
up observing:

"So far as the statutory provisions regulating the facets of
administration are concerned, in case of an unaided minority
educational institution, the regulatory measure of control should be
F
minimal and the conditions of recognition as well as conditions of
affiliation to a University or Board have to be complied with, but in
the matter of day-to-day Management, like appointment of staff,
teaching and non-teaching and administrative control over them, the
Management should have the freedom and there should not be any
G external controlling agency. However, a rational procedure for selection
of teaching staff and for taking disciplinary action has to be evolved
by the Management itself. For redressing the grievances of such
employees who are subjected to punishment or termination from service,
a mechanism will have to be evolved and in our opinion, appropriate
tribunals could be constituted, and till then, such tribunal could be
H
ISLAMIC ACADEMY OF EDUCATION. v. STATE [S.B. SINHA,J.] 523
presided over by a Judicial Officer of the rank of District Judge. The A
State or other controlling authorities, however, can always prescribe
the minimum qualifications, salaries, experience and other conditions
l,"'".
bearing on the merit of an individual for being appointed as a teacher
of an educational institution.

Regulations can be framed governing service conditions for teaching B
and other staff for whom aid is provided by the State without interfering
with overall administrative control of Management over the staff,
Government/University representative can be associated with the
selection committee and the guidelines for selection can be laid down.
In regard to un-aided minority educational institutions such regulations, C
which will ensure a check over unfair practices and general welfare,
of teachers could be framed.

There could be appropriate mechanism to ensure that no capitation
fee is charged and profiteering is not r~sorted to.

The extent of regulations will not be the same for aided and un-aided D
institutions."

The majority held that there is an apparent conflict between the
provisions of clause (2) of Article 29 and clause (1) of Article 30. Article 29
guarantees the right to every citizen not to be denied admission into any E
educational institution maintained by the State or receiving aid out of State
funds on grounds only of religion, race, caste, language or any of them;
whereas clause (1) of Article 30 confers a fundamental right to set up
educational institutions of their choice.

A delicate balance was sought to be struck by stipulating that minority F
educational institutions may admit non-minority students to a "reasonable
extent" so that the rights of both minorities and non-minorities are protected.
However, the extent to which such balance is to be struck may be determined
by the State having regard to such factors as 'the type of institution', 'course
of education', 'population and educational needs of minorities'. It was further G
laid down that the minority institutions are required to admit students having
regard to inter-se merit amongst the applicants. Non-minorities students, who
qualify the test, would be entitled to seek admission against the "allotted
seats" as per their own respective cumulative merit.

However, one ofus Variava, J., speaking for himself and Bhan, J. clearly H
held that where the minority institutions take aid from the State they do not
524 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A have any right to admit students of minority community alone. For arriving
at the said conclusion, the learned Judge referred to the history of the said
provision and the intention of the founding fathers, which was the conferment
of a right of minorities to establish "a secular state wherein people belonging :v

to the different religions should all have a feeling of equality and non-
B discrimination".

The learned Judge further referred to the significance of conditional
clause, 'at their own expense' in the draft article VI which reads as follows:

"Citizens belonging to national minorities in a state whether based on
-'religion or language have equal rights with other citizens in forming,
c controlling and administering at their own expense, charitable, religious
and social institutions, schools and other educational establishments
with the free use of their language and practice of their religion.

No legislation providing state-aid for schools shall discriminate
against schools under the management of minorities whether based
D
on religion or language."

The learned Judge further observed that by reason of Article 30(1) no
'special' or 'additional' right is conferred on the minorities.

E Expression 'minorities' although is not defined in the Constitution, one
of us Khare, CJI, referred to the Year Book on Human Rights (I 950) and
Encyclopaedia Britannica and some other standard works on the theme of
protection of minorities.

Though in para 153 the view regarding merit was expressed, but while
F answering the question No. 7 was left open to be answered by the appropriate
Benches.
v
The majority opined that the minority status of a group of persons
would be determined on the basis of population of the State or Union Territory
concerned and not on the whole of the country. It was further held that
G education within the meaning of the provision of Article 30 would mean and
include education from primary level to the post-graduate level and would
include professional education as well.

The Bench, however, overruled the dicta in Unni Krishnan 's case (supra)
H that education is not a 'business' or 'occupation' within the meaning of
Article 19(1 )(g) of the Constitution of India, wherein referring to State of
ISLAMIC ACADEMY OF EDUCATION. v. STATE [S.B. SINHA, J] 525
Bombay v. R.M.D. Chamarbaugwala, [1957] SCR 874 and incorporating the A
doctrine of res extra commercium, the Court had observed :

"While the conclusion that 'occupation' comprehends the
establishment of educational institutions is correct, the proviso in the
aforesaid observation to the effect that this is so provided no
recognition is sought from the state or affiliation from the concerned B
university is, with the utmost respect, erroneous. The fundamental
right to establish an educational institution cannot be confused with
the right to ask for recognition or affiliation."

While declaring that the Scheme framed in Unni Krishnan 's case (supra) C
and the direction!! issued to the Government, UGC and other concerned
bodies to give effect to the same vis-a-vis privately managed educational
institutions as unconstitutional, it upheld two propositions : ( 1) primary
education is a fundamental right; and (2) the institution cannot charge any
capitation fee or otherwise take.recourse to profiteering.
D
It was observed :

"The scheme framed by this Court in Unni Krishnan 's case and the
direction to impose the same, except where it holds that primary
education is a fundamental right, is unconstitutional. However, the
principle that there should not be capitation fee or profiteering is E
correct. Reasonable surplus to meet cost of expansion and augmentation
of facilities does not, however, amount to profiteering."

The Bench agreed with the contention of the private institutions that
affiliation and recognition has to be made available to every institution that
fulfils the conditions for grant thereof observing : F
"The private institutions are right in submitting that it is not open
to the Court to insist that statutory authorities should impose the
terms of the scheme as a condition for grant of affiliation or recognition;
this completely destroys the institutional autonomy and the very G
objective of the institution."

The Court, however, laid emphasis that in professional education merit
should be the criteria.

With a view to appreciate the extent to which the Scheme formulated
in Unni Krishnan was not found favour with T.M.A. Pai Foundation (supra), H
526 SUPREME COURT REPORTS (2003] SUPP. 2 S.C.R.

A we may set out the observations of this Court in T.MA. Pai Foundation
(supra) as follows:
'•
I . Establishment of Educational Institutions

All citizens have a right to establish and administer educational
B institutions under Articles 19( I)(g) and 26, but this right is subject to provisions
of Articles 19(6) and 26-A. (See Answer to Question Nos. IO & 11).

2. Admission to Courses

(i) Private Unaided Professional Coileges:
c
(a) Admission to professional colleges should be based on merit by
common entrance test conducted by the Government agencies
(See Paragraph 59) ·

(b) Certain percentage of seats can be reserved for admission by
D management out of those students who have passed common
entrance test held by itself or by the State agency and the rest
of the seats may be filled up on the basis of counselling by the
State agency. Prescription by percentage has to be determined by
the Government according to local needs (See Paragraph 68)

E (c) When one considers the Constitution Bench's earlier statements
that higher education is not a fundamental right, it seems
unreasonable to compel a citizen to pay for the education of
another more so in the unrealistic world of competitive
examinations which assess the merit for the purpose of admission
solely on the basis of marks obtained where urban students
F always have an edge over rural students. Those who seek
professional education must pay for it. (See Paragraphs 37 & 70).
2 (ii) Private aided professional institutions:
...
It would be permissible for the authority giving aid to prescribe by
G Rules or Regulations the conditions on the basis of which th_e admissions
shall be granted to different aided colleges by virtue of merit coupled with
reservation policy of the State. The merit may be determined either through
the common entrance test conducted by the University or the Government ·
followed by counselling or on the basis of entrance test conducted by
H individual institution, and method to be followed is for the Government o~
University to decide.
ISLAMIC ACADEMY OF EDUCATION. v. STATE [S.B. SINHA, J.] 527

2. (iii) Private aided minority institutions: A
The State Government is not entitled to interfere with the right of
minority educational institutions to admit students of their choice so long as
the admission is on a transparent basis and the merit is adequately taken care
of. The right not being absolute, there could be regulatory measures for
ensuring educational standards and maintaining excellency thereof, specially B
in the case of admission to professional institutions. (See Page 588, Q. 4).

2 (iv.) Unaided minority institutions:

Such institutions would have the right of admission of students
belonging to minority groups and at the same time would be required to admit C
reasonable extent of non-minority students as notified by the State Government.
In case of professional institutions it can also be stipulated that passing of
common entrance test held by the State agency is necessary to seek admission.
(Page 588, Qs. 4, 5(a) and 5(b))

3. Reservation of Seats D

.... While the State has a right to prescribe qualifications necessary for
admission, private unaided colleges have right to admit students of their
choice subject to objective and rational procedure of selection and the
compliance with the conditions if any requiring admission of certain percentage E
of students belonging to weaker sections by granting them free scholarships
or scholarships if not granted by th~ Government (paragraph 53).

4. Fee Structure

(i) .. Scheme of "free" and "Payment" seats was evolved on the F
presumption that the economic capacity of the 50 per cent of admitted students
would be greater than the remaining 50%, whereas the converse has proved
to be the reality. In this scheme, the "Payment" seat student would not only
pay for his own seat, but also finance the cost of a "free seat" classmate. It
seems unreasonable to compel a citizen to pay for the education of another,
more so in the unrealistic world of competitive examinations which assess the G
merit for the purpose of admission solely on the basis of marks obtained
where urban students always have an edge over rural students. In practice,
it has been the case of the marginally less merited rural or poor students
bearing the burden of a rich and well exposed and urban students. (See
Paragraph 37).
H
528 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A (ii) The decision in Unni Krishnan insofar as it framed the Scheme
relating to grant of admission and fixing fee was not correct, and to that extent
the said decision and consequent direction given to UGC, AICTE, Medical
Council of India, Central and State Governments etc., is overruled. (Paragraph
45).

B (iii) A rational fee structure should be adopted by the management and
it would not be entitled to charge capitation fee and appropriate machinery
can be devised by the State or University to ensure that no capitation fee is
charged and that there is no profiteering, though a reasonable surplus in
furtherance of education is permissible. The conditions of granting recognition
C or affiliation can broadly cover academic and educational matters including
the welfare of students and teachers (Paragraph 69, Q.9).

The problem presented in these matters should be viewed from the
aforementioned perspective.

D There is a fundamental right to set up educational institutions both
under Article 19(l)(g) and Article 30 of the Constitution oflndia. It held that
the Scheme framed by this Court in Unni Krishnan did not impose reasonable
restrictions within the meaning of Clause (6) of Article 19 of the Constitution
of India. The unaided institutions compared to the aided institutions will have
more autonomy to run the institutions. However, in the matter of non-
E professional institutions, the autonomy is absolute which is not the case in
professional institutions.

The right to establish and administer an institution comprises of the
right:

F (a) to admit stl!dents;
(b) to set up a reasonable fee structure;
(c) to constitute a governing body;
. (d) to appoint staff (teaching and non-teaching); and
G (e) to take action if there is dereliction of duty on the part of any
employees.

As regards fee structure, it was. held that the fixing of a rigid fee
structure, dictating the formation and composition of a governing body,
compulsory nomination of teachers and staff for appoint~ent or nominating
H

t•1
ISLAMIC ACADEMY OF EDUCATION. v. STATE [S.B. SINHA, J.] 529
students for admissions would be unacceptable restrictions. Although an A
educational institution is not a business, in order to examine the degree of
independence that can be given to a recognized educational institution, like
any private entity that does not seek aid or assistance from the Government,
and that exists by virtue of the funds generated by it, including its loans or
borrowings. It is important to note that the essential ingredients of the
management of the private institution include the admission of students and B
recruiting staff, and the quantum of fee that is to be charged.

An educational institution is established for the purpose of imparting
education of the type made available by the institution. Different courses of
studies are usually taught by teachers who have to be recruited as per C
qualifications that may be pr-escribed. It is no secret that better working
conditions will attract better teachers. More amenities will ensure that better
students seek admission to that institution. One cannot lose sight of the fact
that providing good amenities to the students in th~ form of competent
teaching faculty and other infrastructure costs money. It has, therefore, to be
left to the institution, if it chooses not to seek any aid from the government, D
to determine the scale of fee that it can charge from the students. One also
cannot lose sight of the fact that we live in a competitive world today, where
professional education is in demand. We have been given to understand that
a large number of professional and other institutions have been started by
private parties who do not seek any governmental aid. In a sense, a prospective E
student has various options open to him/her where, therefore, normally
economic forces have a role to play. The decision on the fee to be charged
must necessarily be left to the private educational institution that does not
seek or is not dependent upon any funds from the Government.

Since the object of setting up of an educational institution is charitable p
in nature, capitation fee and profiteering cannot be allowed to be indulged in:

(a) although the institutions may generate a reasonable revenue
surplus for the purpose of development of education and
expansion of the institutions.

(b) For admission in a professional institutions, merit must play an G
important role and meritorious candidates should not be treated
unfairly or put at a disadvantage by preferences shown to less
meritorious but more influential applicants.

Excellence in professional education would require that greater emphasis H
530 SUPREf\1E COURT REPORTS [2003) SUPP. 2 S.C.R.

A be laid on the merit of a student seeking admission ·for which appropriate
regulations can be made.

As regards determination of merit, it was stated:

"Merit is usually determined, for .admission to professional and higher
B education colleges, by either the marks that the student obtains at the
qualifying examination or school leaving certificat~ stage followed by
the interview, or by a common entra~ce test conducted by the
. institution, or in the case of professional colleges, by government
agencies." ·

C Educational institutions, l}.owever, cannot grant admission on their whims
and fancies and must follow some identifiable or reasonable methodology of
admitting the stude_nt~. Any scheme, rule or regulation that does not give an
institution the right to reject candidates who might otherwise be qualified
according to, say, their performance in an entrance. t~st,. would be ~n
D unreasonable· restriction under Article 19(6), th~mgh appiOpriate guidelines/ ·
modalities can be prescribed -for holding the entrance test in a fair manner.
0

Even when students are required to be selec;ted on the baiiis of merit, the
ultimate decision to grant admission to the· students who have otherwise
qualified for the grant admission must be left with the edu~tional institiltion
of
concerned. However, when thejnstitution rejects.some students; such.rejection
E must not. be whimsical or for extraneous reason's.

The princjples governing private unaided. professional colleges were
dealt with separately in paragraphs 67, 68 anq 69; the relevC111t portions
whereof read thus:

F "It would be unfair to apply the same rules and regulations regulating
admission to both aided and unaided professional institutions. It must
be 6ome in mind tha,t unaided professional institutions are' entitled to
autonomy in theii: administration while, at the sa~e time, they do not
forgo or discard the principle of merit. It would, therefore; be penrtissible
for the university or the government, at the time of granting recognition,
G· to require a pdvate unaided institution to provide for merit-based
selection while, at the same time, giving the Management sufficient
discretion in admitting st4dents. This· can 'be done through various
methods. For instance, a certain percentage of the seats can be reserved
for admission by the Management.out pf tbose students who have
G passed the common· entrance test held- _by itself ·or by the State/
ISLAMIC ACADEMY OF EDUCATION. v. STATE [S.B. SINHA, J.) 531

University and have applied to the coll~ge concerned for admission, A
while th~ rest of the seats may be filled up on the basis of counselling
by the state agency. This will incidentally take care of pr -per and
backward sections of the society. The prescription of percentage for
this purpose has to be done by the government according to_ the local
needs and different percentages can be fixed for minority unaided and
non-minority unaided _and professional colleges. The same principles B
may be applied to other non-professional but unaided educational
institutions viz.~ graduation and post graduation non-professional
colleges or institutes.
In such professional unaided institutions; the Management will have C
the right to select teachers as per the qualifications and eligibility
. conditions laid down by the State/University subject to adoption of
a rational procedure of selection. A rational fee structure should be
adopted by the Management, which would not be entitled to charge
a capitation· fee. Appropriate machinery can be devised by the state
or university to ensure that no capitation fee is charged and that there D
is no profiteering, though a reasonable surplus for the furtherance of
. ed~cation is permissible. Conditions granting recognition or affiliation
can broadly cover academiC and educational matters. including the
welfare of students and teachers.

STATUTES OPERATING IN THE FIELD: E
The .Parliament in exercise of its power conferred upon it under Entry
66 List I of the Seventh Schedule of the Constitution of India enacted the
Medical Council ·of India Act, University Grants Commission Act and All
India Council for Technical Education Act. Regulations h~ve also been rramed
pursuant to or in furtherance of the regulation making power contained F
therein. Section lO(l)(i) of the AICTE Act reads as under :-

"IO. Functions of tlie Council. -(I) It shall be the duty of the Council
to take all such steps as it may think fit for ensuring co-ordinated and
integrated development of technical and management education and G
maintenance of standards and for the purposes of performing its
functions under this Act, the Council may-
(a) undertake survey in the various fields of technica.l education,
collect data on all related matters and make forecast of the needed
growth and development in technical education;
H
532 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A (b) co-ordinate the development of technical education in the
country at all levels;

(c) allocate and disburse out of the Fund of the Council such
grants on such terms and conditions as it inay think fit to -

(i) technical institutions"
B
Section 12A of UGC Act is as follows :

"12A. Regulation of fees and prohibition of donations in certain
cases.- (I) In this section, -

c (a) "affiliation", together with its grammatical.variations, includes in
relation to a college, recognition of such college ·by, association
of such college with, and admission of such college to the
privileges of, a University;
(b) "college" means any institution, whether known as such or by
D any other name which provides for a course of study for obtaining
any qualification from a university and which,.in accordance with
the rules and regulations of such University, js recognized as
competent to provide for such coursi;: of study and present
students undergoing such course of study for the examination
for the award of such qualification;
E
(c) "prosecution'', in relation to a course of study, includes promotion
from one part or stage of the course of study to another part or
stage of the course oLstudy;
(d) "qualification" means a degree or any other qualification awarded
by a. University;
F
(e) "regulations" means regulations made under this Act;
(f) "specified course of study" means a course of study in respect
of which regulations of the nature mentioned in sub-section (2)
have been made;
G (g) "student" includes a person seeking admission as a student;

(h) "university" means a university or institution referred to in sub-
section (I) of section 22.

(2) Without prejudice to the generality of the provisions of section
H 12 if,. having regard to -
ISLAMIC ACADEMY OF EDUCATION. v. STATE [S.B. SINHA,J.] 533
(a) the nature of any course of study for obtaining any qualification A
from any University;

(b) the types of activities in which persons obtaining such
qualification are likely to be engaged on the basis of such
qualification;

(c) the minimum standards which a person possessing such B
qualification should be able to maintain in his work relating to
such activities and the consequent need for ensuring, so far as
may be, that no candidate secures admission to such course of
study by reason of economic power and thereby prevents a more
meritorious candidate from securing admission to such course of c
study; and
(d) all other relevant factors, the Commission is satisfied that it is
necessary so to do in the public interest, it may, after consultation
with the university or universiti.es concerned, specify by
regulations the matters in respect of which fees may be charged, D
and the scale of fees in accordance with which fees shall be
charged in respect of those matters on and from such date as
may be specified in the regulations in this behalf, by any college
providing for such course of study from, or in i:elation to, any
student in connection with his admission to, and prosecution of,
such course of study : E
Provided that different matters and different scales of fees may be
so specified in relation to different universities or different classes of
colleges or different areas.

(3) Where regulations of the nature referred to in sub-section (2) F
have been made in relation to any course of study, no college providing
for such course of study shall -

(a) levy or charge fee in respect of any matter other than a ·matter
specifie~ in such regulations;

(b) levy or charge any fees in excess of the scale of fees specified G
in such regulations, or

(c) accept, either directly or indirectly, any payment (otherwise than
by way of fees) or any donation or gift (whether in cash or kind),
from, or in relation to, any student in connection with his admission
H
534 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A to, and prosecution of, such course of study.

(4) If, after making, in relation to a: college providing for a specified
course of study, an inquiry in the manner provided by regulations,
and after giving such college a reasonable opportunity of being heard,
the Commission is satisfied that such college has contravened the
B provisions of sub-section (3), the Commission may, with the previous
approval of the Central Government, pass an order prohibiting such
college ftom presenting any students then undergoing such course of
study therein to any university for the award of the qualification
concerned.

c (5) The Commission shall forward a copy of the order made by it
under sub-section (4) to the university concerned, and on and from
the date of receipt by the University of a copy of such order, the
affiliation of such college to such university shall, in so far as it
relates to the course of study specified in such order, stand terminated
and on and from the date of termination of such affiliation and for a
D
period of three years thereafter affiliation shall not be granted to such
college in relation to such or similar course or study by that or any
other university.

(6) On the termination of the affiliation ofany college under sub-
E section (5), the Commission shall take all such steps as it may consider . '
appropriate for safeguarding the interests of the students concerned.

(7) The provisions of this section and the regulations made for _the
purposes of this section shall have effect notwithstanding anything
inconsistent therewith contained in any other law for the time being
F in force."

Detailed regulations have been framed under the aforementioned three
Acts regulating admission of students, percentage of the minority students
to be admitted into non-minority institutions, determination of fee and matters
incidental thereto and ancillary therewith. By reason of the said regulations,
G the State Government, however, have been delegated· with the power to
determine the fee structure in respect of professional institutions wherefor
requisite guidelines have been issued; pursuant whereto and in furtherance
whereof committees have been constituted for the said purpose.

The States of Tamil Nadu, Maharashtra, Karnataka and Andhra Pradesh
H enacted statutes prohibiting collection of capitation fee and. regulating
ISLAMIC ACADEMY OF EDUCATION. v. STA TE [S.B. SINHA, J.] 535
admission in professional colleges. In terms of the provisions of the said A
Acts, the management of the professional colleges is prohibited from charging
any fee other than fee determined under the said Acts. The right of the
minorities under Article 30 of the Constitution, however, stands protected
thereby. The respective State Governments enforced the said statutes in
respect of self-financing private institutions, minorities or otherwise. They B
further issued various Government orders in exercise of their powers under
Article 162 of the Constitution of India after the judgment in T.MA. Pai
Foundation. The University Grants Commission, the A.I.C.T.E. and the Medical
Council of India, issued provisional/ad hoc guidelines covering the same
subject purported to be in terms of the provisions of the principal statutes
governing the field in the light of the judgment of this Court in T.MA. Pai C
Foundation. The State Governments also in terms of the observations made
by this Court issued various orders or adopted resolutions providing for
enforcement of their reservation policy as also determining the fee structure.

Constitutionality of such Government orders came to be challenged,
inter alia, by way of writ petition before the High Courts of Andhra Pradesh, D
Karnataka and Kerala. Certain interim orders had been passed therein which
are under challenge in several special leave petitions. As noticed hereinbefore,
in T.MA. Pai Foundation's case (supra) only orders and directions issued
pursuant to Unni Krishnan have been declared unconstitutional.

However, the question with regard to constitutionality or ~herwise of E
the said statutes, Rules and Regulations had not been exipnined. In partk:ular
the parliamentary acts and the regulations framed thereunder have not been
referred to. The question as to whether the field with regard to the higher
education is covered by the parliamentary legislations or not was not adverted
to. The extent and scope of the legislative competence of the Parliament and F
the State Legislatures within the meaning of Entry 66 of List I and Entry 25
of List III of the Seventh Schedule of the Constitution also had not been
adverted to. In the aforementioned premise, one of us, Variava, J. stated :

"393. The learned Chief Justice has repeatedly emphasised that
capitation fees cannot be charged and that there must be no G
profiteering. We clarify that the authorities concerned will always be
entitled to prevent by enactment or by regulations the charging of
exorbitant fees or capitation fees. There are many such enactments
already in force. We have not gone into the validity or otherwise of
any such enactment. No arguments regarding the validity of any' such
H
536 SUPREME COURT REPORTS (2003] SUPP. 2 S.C.R.

A enactment have been submitted before us. Thus those enactments will
not be deemed to have been set aside by this judgment. Of course
now by virtue of this judgment the fee structure fixed under any
regulation or enactment will have to be reworked so as to enable
B educational institutions not only to break even but also to generate
some surplus for future development/expansion and to provide for
free seats."

Although the parties have raised their contentions as regards
C constitutionality of some of the provisions of the aforementioned statutes,
keeping in.view the limited scope for which this Constitution Bench has been
constituted, we refrain ourselves from going thereinto. This exercise has to
be undertaken in appropriate cases.

D ARE THE RIGHTS UNDER ARTI CLE 19(1 )(g) AND ARTICLE 30( I) OF
THE CONSTITUTION OF INDIA EQUAL ? :

T.MA. Pai Foundation (supra) for the first time brought into existence
the concept of education as an 'occupation'. In no uncertain terms, it was
held that all citizens oflndia irrespective of the fact as to whether they belong
E to a minority group or not have a right to establish and run an institution.
A right conferred on a citizen of India in terms of Article 19(1)(g) of the
Constitution of India indisputably is subject to reasonable restrictions, which
may ~e imirsed in public interest under clause (6) thereof. The makers of the
Constitution no doubt while enacting Article 30 of the Constitution of India
intended to confer on the minorities the same right as that of the majority. But,
F does it mean that for all intent and purport no further or additional right exists
in the minority community is the question.

Drawing our attention to paragraphs 54, 65, 138~ 139, 224-229 of the
judgment, Mr. Venugopal and Mr. Vaidyanathan, the learned senior counsel
for the respondents would submit that the minority right is equal to that of
G the majority and not vice-versa. According to learned counsel, if it is to be
held that the minority exercises a higher right than the majority, the same
would be counter productive to the Indian ethos. Right to admit students of
their own choice, the learned counsel would contend, in a professional college,
therefore, is not absolute.
H
On the other hand, the learned counsel appearing on behalf of the Writ
Petitioners-Applicant would contend that the discussions in T.M.A. Pai
1 Foundation centered round the question as to whether the right conferred
ISLAMIC ACADEMY OF EDUCATION. v. STATE [S.B. :;INHA, J] 537
upon minorities under Article 30 was subject to clause (2) of Article 29 or not. A
Our attention was drawn to paragraphs 31 to 45 of the judgment and in
particular para 31, 45 and 459 of the judgment. The learned counsel would
submit that while considering the question as to whether the Scheme framed
by this Court in Unni Krishnan was reasonable, it was categorically held that
the provisions contained therein to the extent that 50% seats would be free B
seats and 50% thereof would be payment seats and all examinations would
be conducted through Common Entrance Test (CET) and the ceiling on fees
was declared unconstitutional as being violative of clause '6) ,,[Article 19 of
the Constitution of India. It was submitted that in the event if it be held that
the said provisions are ultra vires for ~he purpose of clause (f..) of the Article
19 the same consequences must ensue for construction of Article 30 of C
Constitution of India. It was contended that having· regard to the majority
decision of this Court, if it is held, having regard to clause (2) of Article 29
of the Constitution that in the event an aid is granted to a professional
institution, they will be subject to the same restrictions which any other self-
financed scheme institution would face in terms of clause (6) of Article 19 of
the Constitution of India then no purpose can be held to have been achieved D
by the Constitution makers in enacting clause (I) of Article 30 of the
Constitution of India.

A citizen of India whether belonging to a minority community or not will
have the right under Article 19. A person belonging to a minority community E
apart from 19(l)(g) has a right to establish, administer institution of their
choice. In T.MA. Pai Foundation this Court held that minority institutions
can establish and run a professional institution in terms of clause (I) of
Article 30 of the Constitution having regard to the fact that they have a right
to establish an institution of their own choice.
F
A citizen of India with a view to establish an unaided professional
institution exercises his right of occupation. To the said extent admittedly the
right of the minority and non-minority is equal. Article 30, however, seeks
further to protect the minorities so that they may admit students in the
institution established by them. This privilege is not extended to the non-
minority community. They also have a right to establish an institution and G
admit students of their own choice in terms of Para 68 of the judgment in
T.M.A. Pai but they do not have any right of admitting students belonging
to a particular locality or speaking a particular language as such institutions
are not meant to serve the said purpose. But the same for all intent and
purport having regard to the question involved in the matter may not be of H
538 SUPREME COURT REPORTS (2003] SUPP. 2 S.C.R.

A much consequence as would appear from the discussions made hereinafter.
The Bench held:

"36. The private unaided educational institutions impart education,
and that cannot be the reason to take away their choice in matters,
B inter alia, of selection of students and fixation o( fees. Affiliation and
recognition has to be available t<1 every institution .that fulfills the
conditions for grant of such affiliation and. recognition. The private
institutions are right in submitting that it is not open to the Court to
insist that statutory authorities should impose the terms of the scheme
as a condition for grant of affiliation or recognition; this completely
c destroys the institutional autonomy and the very objective of
establishment of the institution.

The Scheme framed in Unni Krishnan was held to be unconstitutional
by this Court and only· in that context it was observed:

D "38. The scheme in Unni Krishnan 's case has the effect of nationalizing
education in respect of important features, viz., the right of a private
unaided institution to give admission and to fix the fee. By framing
this scheme, which has led to the State Governments legislating in
conformity with the scheme the private institutions are indistinguishable
from the government institutions; curtailing all the essential features
E
of the· right of administration of a private unaided educational
institution can neither be called fair nor reasonable. Even in the
decision i!l Unni Krishnan 's case, it has been observed by Jeevan
Reddy, J., at page 749, para 194, as follows: _

"The hard reality that emerges is that private educational
F
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
G State it has no monopoly therein. Private educational institutions
- including minority educational institutions - too have a role to
play."

However, it was also noticed :

H "138. As we look at it, Article 30(1) is a sort of guarantee or assurance
ISLAMIC ACADEMY OF EDUCATION. v. STATE [S.B. SINHA, JV 539
to the linguistic and religious minority institutions of their right to A
establish and administer educational institutions of their choice.
Secularism and equality being two of the basic features of the
Constitution, Article 30(1) ensures protection to the linguistic and
religious minorities, thereby preserving the secularism of the country.
Furthermore, the principles of equality must necessarily apply to the B
enjoyment of such 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 C
down. At the same time, there also cannot be any reverse
discrimination. It was observed in St. Xavier's College case (1975) l
SCR 173, at page 192, that

"the whole object of conferring the right on minorities under Article D
30 is to ensure that there will be equality between the majority afl!l
the minority. If the minorities do not have such special protection,
they will be dented equality. "

In other words, the essence of Article 30( l) is to ensure equal treatment
between the majority .and the minority irtstitutions. No one type or E
category of institution should be disfavoured or, for that platter, 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 institutions. The minority" institutions must
be allowed to do what the non-minority institutions are permitted to
~. . F
139. Like any other private unaided institutions, similar unaided
educational institutions administered by linguistic or religious minorities
are assured maximum autonomy in relation thereto; e.g., method of
recruitment of teachers, charging of fees and admission of students.
They will have to comply with the conditions of recognition, ·which G
cannot be such as· to whittle down the right under Article 30."

The findings of this Court in the aforementioned paragraphs must be
given their full effect. Although the width and scope of Article 19(\)(g) and
Article 30 are different, but they seek to fulfill the same purpose. A minority H
540 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A institution has no additional rights but it enjoys a constitutional protection
to admit students belonging to the minority communities whether based on
religion or language. All regulations in this behalf must satisfy the requirement
of Article 30. The doctrine of equality shall further apply once the institutions
have been established.

B We may notice that this Court in Ahmedabad St. Xavier's College
(supra) stated:

"In order to attain that object, two things were regarded as particularly
necessary and have formed the subject of provisions in these treaties.

c The first is to ensure that nationals belonging to racial, religious or
linguistic minorities shall be placed in every respect on a footing of
perfect equality with the other nationals of the State. The second is
to ensure for the minority elements suitable means for the preservation
of their racial peculiarities, their traditions and their national
characteristics.
D
These two requirements are indeed closely interlocked, for there would
be no true equality between a majority and a minority ifthe latter were
deprived of its own institutions and were consequently compelled to
renounce that which constitutes the very essence of its being a
minority"."
E
The purport and object for which Article 30(1) was inserted in the
Constitution cannot be lost sight of. Judgments of Khare, J. (as the CJI then
was) and Variava, J. are replete with the debates in the constituent assembly.

The argument that the management of the minority institutions cannot
F be taken over, whereas that of the non-minority institutions can be, is misplaced
and in any event irrelevant. This Court in no unmistakable terms held that the
State cannot take any step by way of imposing conditions at the time of grant
of recognition which would amount to nationalization of education. This
applies to both minorities and non-minorities.
G
The Constitution prohibits acquisition of property of any citizen of
India except in accordance .with law. Any action taken on the part of the State
to take over the property of minority institution must also receive legal
sanction through an act of a legislation and not otherwise.

H It will not be a correct proposition of law, on the face of Clause I A of
IS LA MIC ACADEMY OF EDUCATION. v. STATE [S.B. SINHA, J.] 541
Article 30 of the Constitution to contend that the properties of the minority A
institutions cannot be taken over at all. The only right which they have is to
get reasonable compensation so as to enable them to establish another
,. educational institution at some other place. It is not necessary to raise
hypothetical question to drive home a point which is of not much consequence.
As and when laws are made, their constitutionality will have to be tested on B
their own merit. Preemptive answers should not be given on hypothetical
questions.

Furthermore, in the event, running of a minority institution is found to
be against national interest or permissible limits of regulations, it can be taken
over with a view to maintain morality, public order, health, national interest. C
Similar such considerations would empower the State to close the institution
or take over the management thereof, although the same may. be done only
in extreme cases.

In case of gross mismanagement and violation of the conditions of
essentiality certificate also, the State may be held to have the power to close D
down the institution.

The right of the minority institution to admit their own students, in
.,
other words, is only by way of protection of the minority interest so that they
may get the benefit of the equality clause. Such a protection should not be
confused to be a right. This is evident not only from paras 138 and 139 of E
the judgment but also from para 371, (opinion of Ruma Pal, J.)

The statement of law contained in paras 138 and 139 is absolutely clear
and unambiguous and no exception can be taken thereto. The doubt, if any,
that the minorities have a higher right in terms of Article 30( I) of the Constitution
of India may be dispelled in clearest terms inasmuch as the right of the F

-
minorities and non-minorities is equal. Only certain additional protection has
been conferred under Article 30( I) of the Constitution of India to bring the
minorities on the same platform as that of non-minorities as regards the right
to establish and administer an educational institution for the purpose of
imparting education to the members of their own community whether based G
on religion or language.

Demographically every Indian can become a minority having regard to
the fact that even Hindus are in minority in Jammu & Kashmir, Punjab and
some other States in North-East of India. Even Hindi speaking people except
northern India are in minority in other parts of the country. H
542 SUPREME COURT REPORTS (2003] SUPP. 2 S.C.R.

A The question, thus, has to be considered keeping in view the fact that
every Indian may be a minority, either based on religion or language, in one
part of the country or the other. The right of a citizen as a minority in one
part of the country cannot be higher than his right as a member of majority
in another part of the country.

B Furthermore, one of us t Variava, J.) speaking for himself and Bhan, J.
clearly said :

"Article 30 merely protects the right of the minority to establish and
administer an educational institution, i.e. to have the same rights· as
those enjoyed by majority, Article 30 gives no right to receive State
c aid. It is for the institution to decide whether it wants to receive aid.
If it decides to take State aid then Article 3~(2) merely provides that
the State will not discriminate against, it. When State, whilst giving
aid, asks the minority educational institute to comply with a
constitutional mandate, it can hardly be said 'that the State is
D discriminating against that institute. The State is bound to ensure that
all educational institutes, whe_ther majority or minority, comply with
the constitutional mandate. "

(Emphasis applied)

E The right of the minorities in the matter of admission of students can
also be restrict~d like the non-minorities. T.MA. Pai says so.

The professional institutions indisputably are governed by statutes like
MCI Act, AICTE Act and the UGC Act. In terms the provisions of the
statutes and regulations framed thereunder the private professional institutions
F are required to maintain certain standards. They cannot be deviated or departed
from. In the context of giving admissions to the meritorious students, it

·-
I
cannot ~e said that the students belonging to the minority community shall j

be admitted without reference to merit.

The courts, it is relevant to place on record, would not encourage
G ·establishment of pseudo minor~ty institutions imparting professional courses.
The statutory rules and regulatLons, thus, must be equally applied to all the
professional institutions whether aided or unaided whether run by a minority
or non-minority. In the matter of maintenance of standard, these institutions
must be equally treated.

H If it be held that the minority institutions can admit all the students
j

ISLAMIC ACADEMY OF EDUCATION. v. STATE (S.B SINHA, .I.) 543

belonging to their own community whereas the non-minority institutions A
cannot, the same, in my opinion, would amount to re-writing the judgment.

The arguments which have been advan .. ed in this behalf, if accepted,
would clearly lead to the conclusion that the majority decision in TMA Pai
Foundation is wrong.
B
Even while laying down the law in tenns of Articles 15(3), 15(4), 16(1)
and 16(4), the object is to attain equality. Reverse discrimination even in the
majority judgment has been frowned upon. Can we say that the right of the
minorities is higher than the other disadvantaged group? Possibly not having
regard to Part III of the Constitution.
c
It is interesting to note that recently in Jennifer Gratz and Patrick
Hamacher v. Lee Bollinger decided on 23rd June, 2003 by US Supreme Court
the guidelines providing for selection method under which every applicant
from an under represented racial or ethnic minority groups was to be
automatically awarded 20 points out of I 00 pointsneeded to guarantee D
admission, was struck down as being violative of equality protection clause.
It was observed:

"The very nature of a college's permissible practice of awarding value
to racial diversity means that race must be considered in a way that
increases some applicants' chances for admission. Since college E
admission is not left entirely to inarticulate intuition, it is hard to see
what is inappropriate in assigning some stated value to a relevant
characteristic, whether it be reasoning ability, writing style, running
speed, or minority race. Justice Powell's plus factors necessarily are
assigned some values. The college simply does by a numbered scale
what the law school accomplishes in its "holistic review," Grutter, F
post, at 25; the distinction does not imply that applicants to the
undergraduate college are denied individualized consideration or a fair
chance to compete on the basis of all the various merits their
applications may disclose."

Justice Ginsburg, however, speaking for himself and Justice Souter in G
their minority opinion stated:

"Our jurisprudence ranks race a "suspect" category, "not because
(race) is inevitably an impermissible classification, but because it is
one which usually, to our national shame, has been drawn for the H
544 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A purpose of maintaining racial inequality." Norwalk Core Vs. Norwalk
Redevelopment Agency, 395 F. 2d 920, 931-932 (CA2 1968) (footnote
omitted). But where race is considered "for the pi.;rpose of achieving
equality," id., at 932, no automatic proscription is in order. For as
insightfully explained, "the Constitution is both color blind and color
conscious. To avoid conflict with the equal protection clause, a
B classification that denies a benefit, causes harm, or imposes a burden
must not be based on race. In that sense, the Constitution is color
blind. But the Constitution is color conscious to prevent discrimination
being perpetuated and to undo the effects of past discrimination.
"United States v. Jefferson County Bd. Of Ed., 372 F.2d 836, 876 (CA5
c 1966)(Wisdom,J.): see Wechsler, The Nationalization of Civil Liberties
and Civil Rights Supp. To 12 Tex.Q.10,23(1968) (Brown may be seen
as disallowing racial classifications _that "imply an invidious
assessment" while allowing such classifications when "not invidious
in implication" but advanced to "correct inequalities"). Contemporary
human rights documents draw just this line; thex distinguish between
D policies of oppression and measures designed to accelerate de facto
equality. See Grutter, post, at l (Ginsburg, J. concurring)(citing the "
United Nations - initiated Conventions on the Elimination of All Forms ·
of Racial Discrimination and on the Elimination of All Forms of
Discrimination against Women)."
E · 1t is not necessary to express any opinion on this judgment one way
or the other but it is referred to as the same points out two different viewpoints.
But one thing is clear; ultimate constitutional goal is to attain equality.

Human history would show that struggle of man for democratic polity
F was inspired by a desire to achieve equality among them. Indeed, some of the
world Constitutions in their preamble abhor inequality and proclaim to achieve
equality in all respects. Whatever may be the power and jurisdiction of the
State and State authorities to make a special provision in favour of backward
and downtrodden, when the Court tests the reasonableness of such distincti~e
State action, it should be done by posing a question whether such State
G action to ameliorate social, economic and political poverty; whatever be the
reason, delays the journey towards proclaimed goal of equality. If a measure
tends to perpetuate inequality and makes the goal of equality a mirage, such
measure should not receive the approval of the Court. The Court, in such
circumstances, has to mould the relief by indicating what would be the
H reasonable measure or action which furthers the object of achieving equality.
ISLAMIC ACADEMY OF EDUCATION. v. STATE (S.B. SINHA, J.] 545

The concept of equality is not a doctrinaire approach. It is a binding thread A
which runs through the entire constitutional text. An affirmative action may,
therefore, be constitutionally valid by reason of Articles 15(4) and 16(4) and
various directive principles of State policy, but the Court cannot ignore the
constitutional morality which embraces in itself the doctrine of equality. It
would be constitutionally immoral to perpetuate inequality among majority B
people of the country in the guise of protecting the constitutional rights pf
. minorities and constitutional rights of backward and downtrodden. All the
rights of these groups are part of right to social development which cannot
render national interest and public interest subservient to right of an individual
or right of community.

In the event the minontles are not granted the right to establish
c
educational institutions of their choice and admit students of their community,
the right of equality would lose all its purpose and relevance. It is in that
sense the rights of the majority and minority must be held to be equal. In my
opinion the provisions of Articles 19( l )(g), 29(2) and 30 must be so construed.
D
REASONABLE REGULATIONS:

So far as institutions imparting professional educatinn are concerned,
having regard to the public interest, they are bound to maintain excellence in
standard of education. To that extent, there cannot be any compromise and
the State would be entitled to impose restrictions and make regulations both E
in terms of Article 19( I )(g) and Article 30 of the Constitution of India. The
width of the rights and limitations thereof of unaided institutions whether run
by a majority or a minority must conform to the maintenance of excellence.
With a view to achieve the said goal indisputably the regulations can be made
by the State.
F
The right to administer does not amount to right to maladminister and
the right is not free from regulation. The regulatory measures are necessary
for ensuring orderly, efficient and sound administration. The regulatory
measures can be laid down by the State in the administration of minority
institutions.
G
EXTENT OF REGULATIONS:

Article 30(1) of the Constitution does not con for an absolute right. The
exercise of such right is subject to permissible State regulations with an eye
on preventing mat-administration. Broadly stated there are "permissible H
546 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A regulations" and "impermissible regulations".
Some of the permissible regulations/restrictions governiPg enjoyment
of Article 30( 1) of the Constitution are -

(i) Guidelines for the efficiency and excellence of educational
B standards [See Sidhajbhai v. State of Gujarat, [1963] 3 SCR 837;
State of Kera/a v. Mother Provincial, [ 1970] 2 SCC 2079; All
Saints High School v. Government of Andhra Prac/esh, [ 1980] 2
sec 478];
(ii) Regulations ensuring the security of the services of the teachers
C or other employees [See In Re Kera/a Education Bill, and All
Saints High School v. Government of A.P. (supra)];
(iii) Introduction of an outside authority or controlling voice in the
matter ·of service conditions of employees [See All Saints High
School v. Government of A.P. (supra)];
D (iv) Framing Rules and Regulations governing the conditions of
service of teachers and employees and their pay and allowances
[See State of Kera/av. Mother Provincial, (supra) and All Saints
High School v. Government of A.P., (supra)];
(v) Appointing a high official with authority and guidance to oversee
E that Rules regarding conditions of service are not violated, but,
however such an authority should not be given blanket,
uncanalised and arbitrary powers [See All Saints High School v.
Government of Andhra Pradesh (supra)];
(vi) Prescribing courses of study or syllabi or the nature of books
F [See State of Kera/av. Mother Provincial (supra) and All Saints
High School v. Government of A.P., (supra)]; and
(vii) Regulation in the interest of efficiency of instruction, discipline,
health, sanitation, morality, public order and the like [See
Sidhajbhai v. State of Gujarat (supra)]
G Subject to what has been stated in T.M.A. Pai Foundation, some of the
impermissible regulations are :

(i) Refusal to affiliation without sufficient reasons [All Saints High
School v. Government of A.P. (supra)];
H (ii) Such conditions as would completely destroy the autonomous
ISLAMIC ACADEMY OF EDUCATION. v. STATE [S.B. SINHA, J.] 547
administration of the educational institution [All Saints High A
School v. Government of A.P., (supra)];

(iii) Introduction of an outside authority either directly or through its
nominees in the governing body or the managing committee of
minority institution to conduct the affairs of the institution [All
Saints High School v. Government of A.P., (supra)]; B
(iv) Provision of an appeal or revision against an order of dismissal
or removal by an aggrieved member of staff or provisions for
Arbitral Tribunal [See St. Xaviers College v. State of Gujarat
(supra), Lilly Kurian v. S.R. Lewina, [1979] 2 SCC 124 and All
Saints High School v. Government of A.P. (supra)]; C
WHETHER THE STATE CAN IMPOSE /IBSERVATION ON A SELF FINANCED
INSTITUTION JN PURPORTED EXERCISE OF ITS RIGHT TO ENFORCE
THE DIRECTIVE PRINCIPLES OF STATE POLICY

The purported right of the States to prescribe a certain percentage of D
seats for their nominees including those belonging to the reserved category
candidates is said to have arisen from:

(i) The State grants essentiality certificate in terms whereof in the
event of closure· of the institution the State undertakes to take
over.
E
(ii) The States have a duty to enforce Directive Principles of State
Policy in terms of Article 38, 41, 45 and 47 of the Constitution of
India.

Directive Principles of State Policy contained in Part IV of the
Constitution of India are not justiciable. F
Equality clauses contained in Part III of the Constitution are to be found
in Articles 14, 15 and 16. Whereas Article 14 mandates equality amongst all
sections of people, Articles 15 and 16 deal with the matters specified therein
namely, prohibition of discrimination on grounds of religion, race, caste, sex
or place of birth and equality of opportunities in matters of public employment. G
We are concerned in this case with Article 15. Clauses (3) and (4) of
Article 15 of the Constitution of India read thus:

"(3) Nothing in this article shall prevent the State from making any
special provision for women and children." H
548 SUPREME COURT REPORTS l2003] SUPP. 2 S.C.R.

A "(4) Nothing in this article or in clause (2) of article 29 shall prevent
the State from making any special provision for the advancement of
any socially and educationally backward classes of citizens or for the
Scheduled Castes and Scheduled Tribes."

The said provisions were inserted by the Constitution First Amendment
B Act, 1951. There, thus, exists provision for an exception to Articles 14 and
15 as also Clause (2) of Article 29 of the Constitution of India. The State has
also a right to make some reservation for women and children in tenns of
Clause (3) of Article I 5 of the Constitution of India. Clauses (3) and (4) of
Article 15 provide an exception to the general rule. A special provision either
for women and children in terms of Ciause (3) or for advancement of social
C and backward class of citizens of Scheduled Castes and Scheduled Tribes in
terms of clause (4) must be made by the State in terms of a legislation or an
executive order. Such a legislation or executive order would be in relation to
the State action. The said provisions cannot be extended by way of imposition
of restriction or regulation so as to impair the right of a citizen of India under
D Article 19( l)(g) or Article 30 thereof. The question which may arise is as to
whether the State can mandate upon an industry or a business house (for
example) to provide job to a person belonging to a reserve category? If not,
the necessary corollary would be that such a restriction or regulation cannot
be imposed on a citizen carrying on an 'occupation'. The right of a citizen
in tenns of Article 19(1 )(g) of the Constitution whether 'to practise any
E profession' or 'to carry on any business/occupation' must be the same or
similar. The reasonable restrictions in terms of Clause (6) must be on the
exercise of a right conferred by the said sub-clause. Although reasonable
restrictions can be imposed on exercise of such right in terms of the
constitutional scheme, the State cannot impose its own duties and obligations
F upon a citizen.

Furthermore, Clauses (3) and (4) of Article 15 are enabling provisions.
The States were to take appropriate steps required therefor within the bounds,
that is, limited only for uplifting the weaker sections and not for conferring
upon them a preferential right. Reservation can be made inter alia by way of
G compelling State necessity. In any event the executive policy of the State
cannot be thrust upon the citizens without any valid legislation

At this juncture, it may be useful to refer to the decisions of this Court
in Re: the Kera/a Education Bill, 1957 (supra) wherein S.R. Das, J speaking
for the Constitution Bench held in the following terms:

H "Learned counsel for the State of Kerala referred us to the directive
ISLAMIC ACADEMY OF EDUCATION. v. STATE [S.B. SINHA, J.) 549

principles contained in Art. 45 which requires the State to endeavour A
to provide, within a period often years from the commencement of the
Constitution, for free and compulsory education for all children until
they complete the age of fourteen years and with considerable warmth
of feeling and indignation maintained that no minorities should be
permitted to stand in the way of the implementation of the sacred duty
cast upon the State of giving free and compulsory primary education B
to the children of the country so as to bring them up properly and
to make them fit for discharging the duties and responsibilities of
good citizens. To pamper to the selfish claims of these minorities is,
according to learned counsel, to set back the hands of the clock of
progress. Should these minorities, asks learned counsel, be pennitted C
to perpetuate the sectarian fragmentation of the people and to keep
them perpetually segregated in separate and isolated cultural enclaves
and thereby retard the unity of the nation ? Learned counsel for the
minority institutions were equally eloquent as to the sacred obligation
of the State towards the minority communities. It is not for this Court
to question the wisdom of the supreme law of the land. We the people D
of India have given unto ourselves the Constitution which is not for
any particular community or section but for all. Its provisions are
intended to protect all, minority as well as the majority communities.
There can be no manner of doubt that our Constitution has guaranteed
certain cherished rights of the minorities concerning their language, E
culture and religion. These concessions must have been made to them
for good and valid reasons. Article 45, no doubt, requires the State
to provide for free and compulsory education for all children, but
there is nothing to prevent the State from discharging that solemn
obligation through Government and aided schools and Art. 45 does
not require that obligation to be discharged at the expense of the F
minority communities. So long as the Constitution stands as it is and
is not altered, it is, we conceive, the duty of this Court to uphold the
fundamental rights and thereby honour our sacred obligation to the
minority communities who are of our own. Throughout the ages
endless inundations of men of diverse creeds, cultures and races - G
Aryans and non-Aryans, Dravidians and Chinese, Scythians, Huns,
Pathans and Mughals - have come to this ancient land from distant
regions and climes. India has welcomed them all. They have met and
gathered, given and taken and got mingled, merged and lost in one
body. India's tradition has thus been epitomised in the following
noble lines : H

..
550 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A "None shall be turned away From the shore of this vast sea of
humanity

That is India" (Poems by Rabindranath Tagore)

.Indeed India has sent out to the world her message of goodwill
B enshrined and proclaimed in our National Anthem :

"Day and night, thy voice goes out from

land to land,

calling Hindus, Buddhists, Sikhs and Jains
c round thy throne and Parsees, Mussalmans and Christians.

Offerings are brought to thy shrine b~

the East and the West

D to be woven in a garland of love.

Thou bringest the hearts of all peoples

into the hannony of one life, Thou Dispenser of India's destiny,

Victory, Victory, Victory to thee." (Rabindranath Tagore)
E
It is thus that the genius of India has been able to find unity in diversity
by assimilating the best of all creeds and cultures. OurConstitution accordingly
recognises our sacred obligations to the minorities. Looking at the rights
guaranteed to the minorities by our Constitution from the angle of vision
indicated above, we are of opinion that cl. 7 (except sub-els. I and 3 which
F apply only to aided schools) and cl. 10 may well be regarded as pennissible
regulation which the State is entitled to impose as a condition for according
its -recognition to any educational institution but that cl. 20 which has been
extended by cl. 3(5) to newly established recognised schools, in so far as it
affects educational institutions established and administered by minority
G communities, is violative of Art. 30( I)."

Mathew, J. speaking for a 9-Judge Bench of this Court in Ahmedabad
St. Xavier's College Society (supra) laid down that the State necessity cannot
be foisted upon the minority. It was held:

H "We find it impossible to subscribe to the proposition that State

•I
ISLAMIC ACADEMY OF EDUCATION. v. STATE [S.B. SINHA, J.] 551

necessity is the criterion for deciding whether a regulation imposed A
on an educational institution takes away or abridges the right under
Article 30(1). If a legislature can impose any regulation which it think
necessary to protect what in its view is in the interest of the State or
society, sounds paradoxical that a right which the Constitution makers
wanted to be absolute can be subjected to regulations which need B
only satisfy the nebulous and elastic test of State necessity. The very
purpose of incorporating this right in Part III of the Constitution in
absolute terms in marked contrast with the o~her fundamental rights
was to withdraw it from the reach of the majority. To subject the right
today to regulations dictated by the protean concept of state necessity
as conceived by the majority would be to subvert the very purpose C
for which the right was given."

This Court in Sunee/ Jat/ey and Ors. v. State of Haryana and Ors.,
[ 1984] 4 sec 296 held that reservations for students coming from rural areas
would be bad in law.

LOCAL NEEDS :
D

It is difficult to define precisely what would constitute "local needs".
Mr. Venugopal refers to the Medical Council of India Regulations, 1999 for
the purpose of showing the requirements necessary to be considered by the
State Government for the grant of essentiality certificate. The State Government E
alone would be in a position to determine local needs which may be based,
for instance, in the case of doctors, on the ratio of doctors to the population
of the State. Other factors such as the percentage of the relevant minority in
the State, the number of minority professional colleges belonging to that
particular linguistic/religious minority in the State, percentage of poorer and
backward sections in the State, total number of professional colleges therein, F
contends Mr. Venugopal, would be relevant factors. This may be so but
similarly there are many more factors that would contribute to local needs.
The criteria laid down in MCI Regulations no doubt provide for some guidelines
for the purpose of determination of local ne~ds but the same cannot be said
to be exhaustive. Local needs would vary from State to State. Even development G
of a backward area may be a local need. Absence of good educational
institutions in particular area may also be a local need. The State may, in
pursuit of its policy for the development of the people, consider it expedient
to encourage entrepreneurs for establishing educational institutions in remote
and backward areas for the benefit of the local people. Local needs, therefore,
cannot be defined only witn reference to the State as a unit. For good reasons H
552 SUPREME COURT REPORTS (2003] SUPP. 2 S.C.R.

A the State may not like to establish professional colleges or institutions only
in their capitals.

ESSENTIALITY CERTIFICATE:

Although local needs, thus, may have to be determined keeping in view
B the factors enumerated therein but it must also be noticed that no essentiality
certificate is required to be given by the State in relation to engineering and
other professional colleges. While laying down the law based on interpretation
of a Constitution as well as a judgment, we cannot take a myopic view and
hold.that 'local needs' must be referable to the medical education. Furthermore,
it may be difficult to give a restrictive meaning to the expression 'local needs'
C i.e. keeping the same confined to the area where the educational institution
is sought to be established inasmuch as the right of minority extends to the
entire State and, thus, the local needs may also have direct nexus having
regard to the need of the State.

D In State of Maharashtra v. Indian Medical Association and Ors., [2002]
I SCC 580, this Court did not decide the question as to whether the expression
"technical education" occurring in Article 371 (2)( c) of the Constitution is
distinct and different from "medical education". The questions which arise for
consideration herein did not arise there.

E In Indian Medical Association case (supra), this Court was concerned
with Maharashtra University of Health Sciences Act, 1998 wherein the question
revolved round as to whether the essentiality certificate would be necessary
for the State to establish a Government-run medical college.

We cannot read the said judgment out of context.

F INTERPRETATION OF A JUDGMENT :
A judgment, it is trite, is not to be read as a statute. The ratio decidendi
of a judgment is its reasoning which can be deciphered only upon reading
the same in its entirety. The ratio decidendi of a case or the principles and
G reasons on which it is based is distinct from the relief finally granted or the
manner adopted for its disposal. [See Executive Engineer, Dhenkanal Minor
Irrigation Division, Orissa and Ors. v. N.C. Budharaj (Deceased) By LRs.
and Ors., (200 I] 2 SCC 721.

In Padma Sundara Rao (Dead) and Ors. v. State of TN. and Ors.,
H [20021 3 sec 533, it is stated:
ISLAMIC ACADEMY OF EDUCATION. v. STATE (V.N. KHARE, CJ.] 553
"There is always peril in treating the words of a speech or judgment A
as though they are words in a legislative enactment, and it is to be
remembered that judicial utterances are made in the setting of the
facts of a particular case, said Lord Morris in Herrington v. British
Railways Board, ((1972) 2 WLR 537: 1972 AC 877 (HL) [Sub nom
British Railways Board v. Herrington, (1972) l All ER 749 (HL)]).
Circumstantial flexibility, one additional or different fact may make a B
world of difference between conclusions in two cases."

[See also Haryana Financial Corporation v. Jagadamba Oil Mills and
Anr., [2002] 3 SCC 496].

In General Electric Co. v. Renusagar Power Co., [1987] 4 SCC 137, it C
was held:

"As often enough pointed out by us, words and expressions used in
a judgment are not to be construed in the same manner as statutes
or as words and expressions defined in statutes. We do not have any D
doubt that when the words "adjudication of the merits of the
controversy in the suit" were used by this Court in State of U.P. v.
Janki Saran Kai/ash Chandra, [ 197 4] I SCR 31 : [ 1973] 2 SCC 96 :
AIR (1973) SC 2071, the words were not used to take in every
adjudication which brought to an end the proceeding before the court
in whatever manner but were meant to cover only such adjudication E
as touched upon the real dispute between the parties which gave rise
to the action. Objections to adjudication of the disputes between the
parties, on whatever ground are in truth not aids to the progress of
the suit but hurdles to such progress. Adjudication of such objections
cannot be termed as adjudication of the merits of the controversy in
the suit. As we said earlier, a broad view has to be taken of the F
principles involved and narrow and technical interpretation which
tends to defeat the object of the legislation must be avoided."

In Rajeswar Prasad Mishra v. the State of West Bengal and Another
reported in AIR ( 1965) SC 1887, it was held:
G
"No doubt, the law declared by this Court binds Courts in India but it
should always be remembered that this Court does not enact."

(See also Mis. Amar Nath Om Prakash and Ors. v. State of Punjab and
Ors., [ 1985] 1 SCC 345 and Hameed Joharan (Dead) and Ors. v. Abdul Salam H

·-
554 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A (Dead) By LRs. and Ors., [2001] 7 SCC 573].
It will not, therefore, be correct to contend, as ha_~ been contended by
~fr. Nariman, that answers to the questions would be the ratio to a judgment.
The answers to the questions are merely conclusions. They have to be
interpreted, in a case of doubt or \dispute with the reasons assigned in
B support thereof in the body of the \judgment, wherefor, it would be essential
to read the other paragraphs of the judgment also. It is also permissible for
this purpose (albeit only in certain cases and if there exist strong and cogent
reasons) to look to the pleadings of the parties.

In Keshav Chandra Joshi and Ors. v. Union of India and Ors., [ 1992]
C Supp. 1 SCC 272, this Court when faced with difficulties where specific
guidelines had been laid down for determination of seniority in Direct Recruits
Class II Engineering Officers' Association v. State of Maharashtra, [1990] 2
sec 715 held that the conclusions have to be read along with the discussions
and the reasons given in the body of the judgment.
D
It is further trite that a decision is an authority for what it decides and
not what can be logically deduced therefrom. [See Union of India v. Chajju
Ram, [2003] 5 sec 568.

The judgment of this Court in T.MA. Pai Foundation (supra) will,
E therefore, have to be construed or to be interpreted on the aforementioned
principles. The Court cannot read some sentences from here and there to find
out the intent and purport of the decision by not only considering what has
been said therein but the text and context in which it was said. For the said
purpose the Court may also consider the constitutional or relevant statut•lry
provisions vis-a-vis its earlier decisions on which reliance has been placed.
F
FEE STRUCTURE:

On a bare reading of the relevant paragraphs of the judgment some of
which are referred to hereinbefore, it is beyond any doubt that in the matter
of determination of the fee structure the unaided institutions exercise a greater
G autonomy. They, like any other citizens carrying on an occupation, must be
held to be entitled to a reasonable surplus for development of education and
expansion of the institution. Reasonable surplus doctrine can be given effect
to only if the institutions make profits out of their investments. As stated in
paragraph 56, economic forces have a role to play. They, thus, indisputably
H have to plan their investment and expenditure in such a manner that they may
ISLAMIC ACADEMY OF EDUCATION. v. STATE [S.B. SINHA. J) 555
generate some amount of profit. What is forbidden is (a) capitation fee and A
(b) profiteering.

However the different State Governments have prescribed different
amounts by way of fees as would appear from the following:-
State Fee
B
Andhra Pradesh Rs. 22,000 per annum
Delhi Rs. 45,000 per annum
Gujarat Govt. Seats -Rs. 21,000

Management Seats - Rs. 50,000 c
Haryana Rs. 40,000 per annum
Kamataka Rs. 4 7,590/-
For non-Kamataka Rs. 75,590

Kerala Rs. 37,100
Tamil Nadu Management seat - Rs. 30,000
D

Merit student - Rs. 25,000
Uttar Pradesh Rs. 45,000 per annum

The expression 'Capitation fee' does not have any fixed meaning. The E
Legislatures of some of the States, however, have defined capitation fee. We
may notice that in the Tamil Nadu Educational Institutions (Prohibition of
Collection of Capitation Fee) Act, 1992, Capitation fee has been defined
as:"capitation fee means any amount by whatever name called, paid or collected
directly or indirectly in excess of the fee prescribed under Section 4;"
F
Section 4 of the said Act states that any amount collected in excess of
the fee so prescribed is prohibited in the following tenns:

"Regulation of fee, etc. - (l) Notwithstanding anything contained in
any other law for the time being in force, the Government, by
notification, regulate the tuition fee or any other fee or deposit that G
may be received or collected by any educational institution or class
or classes of such educational institutions in respect of any or all
class or classes of students:

Provided that before issuing a notification under this sub-section, the
H
556 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A draft of which shall be published, in the Tamil Nadu Government
Gazette stating that any objection or suggestion which may be received
by the Government, within such period as may be specified therein,
shall be considered by them.

(2) No educational institution shall receive or collect any fee or accept
B deposit in excess of the amount notified under sub-section (1 ).

(3) Every educational institution shall issue an official receipt for the
fee or deposit received or collected by it."

Once, however, it is held that such a provision would not constitute a
C reasonable restriction within the meaning of Clause (6) of Article 19, it must
also be held that such a provision would not satisfy the test of permissible
regulations within the meaning of Article 30 thereof.

The ground reality, however, cannot be lost sight of. It is true, as has
been contended by the learned counsel appearing on behalf of the applicants,
D that the Central Government in answer to question raised in the Parliament
has stated that the expenses incurred by the State for imparting education to
the students is very high'. It may vary from three lakhs to five lakhs. Some
States, however, in their colleges charge about rupees five thousand per year;
whereas the unaided institutions demand anything between rupees two lakhs
E to five lakhs.

Some State Governments unfortunately followed suit, hiked fees and
like many private unaided institutions the State of Haryana has also demanded
the entire amount of fees for the whole course.

F The fee structure, thus, in relation to each and every college must be
determined separately ke~ping in view several factors including, facilities
available, infrastructure made available, the age of the institution, investment
made, future plan for expansion and betterment of the educational standard
etc. The case of each institution in this behalf is required· to be considered
by an appropriate Committee. For the said purpose, even the books of\accounts
G maintained by the institution may have to be looked into. Whatever is
determined by the Committee by way of a fee structure having regard to
relevant factors some of which are enumerated hereinbefore, the management
of the institution would not be entitled to charge anything more.

While determining the fee structure, safeguard has to be provided for
H so that professional institutions do not become auction houses for the purpose
ISLAMIC ACADEMY OF EDliCA TION. v. STATE [S.B. SINHA, J.] 557

of selling seats. Having regard to the statement of law laid down in para 56 A
of the judgment, it would have been better, if sufficient guidelines could have
been provided for. Such a task which is a difficult one has to be left to the
Committee. While fixing the fee structure the Committee shall also take into
consideration, inter alia, the salary or remuneration paid to the members of the
faculty and other staff, the investment made by them, the infrastructure B
provided and plan for future development of the institution as also expansion
of the educational institution. Future planning or improvement of facilities
may be provided for. An institution may want to invest in an expensive device,
(for medical colleges) or a powerful computer (for technical college). These
factors are also required to be taken care of. The State must evolve a detailed
procedure for constitution and smooth functioning of the. Committee. C
While this Court has not laid down any fixed guidelines as regard fee
structure, in my opinion, reasonable surplus should ordinarily vary from 6%
to 15%, as such surplus would be utilized for expansion of the system and
development of education.
D
The institutions shall charge fee only for one year in accordance with
the rules and shall not charge the fees for the entire course.

Profiteering has been defined in Black's Law Dictionary, Fifth 'edition
as:
E
"Taking advantage of unusual or exceptional circumstances to make
excessive profits"

With a view to ensure that an educational institution is kept within its
bounds and does not indulge in profiteering or otherwise exploiting its students
financially, it will be open to the statutory authorities and in its absence by F
the State to constitute an appropriate body, till appropriate statutory
regulations are made in that behalf.

The respective institutions, however, for the aforementioned purpose
must file an appropriate application before the Committee and place before it G
all documents and books of accounts in support of its case.

Fees once fixed should not ordinarily be changed for a period of three
years, unless there exists extra-ordinary reason. The proposed fees, before
indication in the prospectus issued for admission, have to be approved by
the concerned authority/ Body set up. For this purpose the application should H
558 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A not be filed later than April of the preceding year of the relevant education
session. The authority/ Body shall take the decision as regards fees chargeable
later by October of the year concerned, so that it can form part of the
prospectus. No institution should charge any fee beyond the amount fixed
and the fee charged shall be deposited in a nationalized bank. In other words,
B no employee or any other person employed by the Management shall be
entitled to take fees in cash from the students concerned directly. The statutory «::
I
authority may consider the desirability of framing an appropriate regulation
inter alia to the effect that in the event it is found that the management of
a private unaided professional institution has accepted any amount other
than the fees prescribed by the Committee, it may have to pay a penalty ten
C to fifteen times of the amount so collected and in a suitable case it may aiso
lose its recognition or affiliation.

However, there cannot be any doubt that before any such order is
passed the institutions concerned shall be entitled to an opportunity of being
heard. For the aforementioned purpose, the State shall set up a machinery to
D detect cases where amounts in excess of permitted limit are collected as it is
the general experience that students pay a huge amount.

However, if for some reason, fees have already been collected for a
longer period the amount so collected shall be kept in a fixed deposit in a
E nationalized bank against which no loan or advance may be granted so that
the interest accrued thereupon may enure to the benefit of the students
concerned. Ordinarily, however, the management should insist for a bond from
the concerned students.

COMMON ENTRANCE TEST AND PERCENTAGE OF SEATS:
F
Paragraphs 48 to 66 appear under the heading "Private unaided non-
minority educational institutions" whereas paragraphs 67, 68 and 69 appear
under the heading "Private unaided professional colleges". The observations
made by the bench, however, having regard to paragraphs 58 and 59 are
referable to both to the minority and non-minority unaided insti!utions.
G Paragraph 68 in no uncertain terms lays emphasis on merit for the purpose
of admission to professional institutions.

However, paragraphs 58 and 59 also deal with professional institutions
although discussions appear under different heading. This, however, would
H not minimize the importance of the statement of law made therein ...
ISLAMIC ACADEMY OF EDUCATION. v. STA TE [S.B. SINHA, J.] 559
Paragraph 68 does not state that the statement of law made therein. A
applies only to the minorities, as for the purpose of local needs it refers to
different percentages both for minority aided and non-minority unaided
professional colleges. It cannot, therefore, be said that paragraph 68 has to
be read in isolation and paragraphs 58 and 59 of the judgment would be
irrelevant for the said purpose. If the said paragraphs are read conjointly, B
there cannot be any doubt that merit must be at the forefront. For the said
purpose professional and higher educational institutions have been clubbed
together.

A dichotomy has arisen in view of the findings of the bench occurring
in paragraphs 58 and 59 on the one hand and 68 of the judgment on the other. C
Paras 68 refers to private unaided professional colleges which would include
both minority and non-minority as would appear from the following :

"The prescription of percentage for this purpose has to be done by
the Government according to the local needs and different percentages
can be fixed for minority unaided and non-minority unaided and D
professional colleges."

Paragraph 58 clearly states that the merit must play an important role.
In no uncertain terms, it is directed :

-
I

"While seeking admission to a professional institution and to become E
a competent professional, it is necessary that meritorious candidates
are not unfairly treated or put at a disadvantage by preferences shown
to less meritorious but more influential applicants. Excellence in
professional education would require that greater emphasis be laid on
the merit of a student seeking admission.
F,
Appropriate observations made in this judgment in the context of
admissions to unaided institutions."

It, therefore, takes into its fold inter se merit between minority and non-
rninority students.
G
Paragraph 59 contains illustration as to how the merit is usually
determined. It may be true that paragraph 59 being illustrative in nature, other
options at the hands of the minority institutions are not excluded but a
confusion has certainly crept in as therein both minority and non-minority
have been clubbed together.
H
F

560 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.
,-
A Paragraph 59 deals with.how todetennine the merit by giving illustration.
·-
Thus, it does not rule out any other method for determining the merit which
may also include marks obtained in qualifying examination. Paragraphs 58, 59
and 68, in my opinion, must be allowed to be given effect to and read
conjointly for the said purpose. )o=

B Paragraph 68 should be read in five parts :

{l) A difference is sought to be made as regards rules and regulations J.·
applicable to the aided institutions vis-a-vis unaided professional
institutions. (This shows that .the regulations relating to admission
of students shall be less rigid for unaided institutions as compared
c to aided institutions);

(2) While conceding autonomy to _the unaided professional
institutions (both minority and non-minority), it is mandatory that
the principle of merit cannot be foregone or discarded (This
shows that role played by merit must be given due importance);
D
(3) The conditions may be laid down by the University or the other
statutory bodies entitled to grant recognition to provide for merit
~
based selection. (The same, however, in my opinion, would not
mean that no condition other than those imposed at the time of
grant of recognition can be imposed by way of legislation or
.,
\

E otherwise inasmuch as the field of imparting education in
professional institutions is governed by statutes. To the said
extent, it has to be read down);
(4) The management of a private unaided _professional colleges for
the purpose of admitting students will have options :- (a) to hold
1-
F a common entrance test by itself; or (b) to follow the common
entrance test held by the State or the University. The students
belonging to the management quota may be admitted having
regard to the common entrance test either held by the management
or by the State/University, although the test may be common. So
far as students belonging to poorer or backward section of society
G is concerned, their seats will have to be filled up on the basis of
counselling by the State agency. (As would appear from the
discussions made hereinafter, it cannot be taken to its logical
conclusion); \
(5) The percentage of management quota and the rest is required to
H \_
I
ISLAMIC ACADEMY OF EDUCATION. v. STATE [S.B. SINHA, J.] 561

be prescribed having regard to the local needs. (However, the A
percentage for minority unaided and non-minority unaided
institutions may be different).

It is not correct to say that only because two different expressions
"certain" and "different" have been mentioned at two places in para 68, they
connote two different meanings. They will have to be read in the context in B
which they have been used. As a logical corollary, it will also be incorrect to
say that minority unaided institutions can fill up al! the seats from amongst
the students belonging to their community whereas the non-minority unaided
institutions will have no such right. The very fact that different percentages
are to be fixed up for minority unaided and non-minority unaided institutions C
is itself a clear pointer to show that although different percentages may be
prescribed therefor; but both minority unaided and non-minority institutions
can admit the students of their choice to the extent of the percentage so
prescribed, albeit without giving a go bye to the merit criteria. ·

Thus, reservation can be made out of the candidates who have been D
found to be meritorious on the above basis. For instance, if 100 students
qualify on merit either through a school leaving examination or a common
entrance test, reservation can be made for certain percentage of students. The
balance of the seats can then made available to students who belong to non-
minority community including poorer or backward section of society as
mentioned in paragraph 68 of the judgment. This will not only take care of E
admission with regard to meritorious candidates including minority candidates
for whom a reservation is made but also for other students as for the local
needs of the State.

If it is to be held that in a case of minority institution all the seats could
be filled in by members of their community/language, if available, the same F
would run counter to para 68 of the judgment which says about certain
percentage which can never be 100%. The expression "different percentages"
occurring in para 68 would clearly mean there cannot be any fixed percentage.
In a given case it may be more than 90% but in another it may be less than
50%. Different percentages must be worked out in terms of the need of the G
institution. It has nothing to do with minority or non-minority; aided or
unaided.
The dictum of the court in St. Stephen vis-a-vis T.M.A. Pai Foundation
must be read in that context. It cannot be said as a matter of legal proposition
that in each and every case the minority educational institutions would be H
562 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A entitled to fill up more than 50% of the seats from amongst the students {'f
their choice and that too irrespective of merit. The fact that even students
belonging to minority community take admission in colleges run or aided by
the State or other private unaided colleges cannot be lost sight of. On taking
into consideration all.the.relevant criteria only the percentage can be worked
B out. It would be, in my co~~idered opinion,. wrong to compare the unaided
institutions always with aided institutions. St. Stephen should be understood
in proper persp_ective. What is explained in TMA. Pai (supra) is that there
cannot be any fixed percentage. Each case will have to be considered on its
own merit. Need of the institution should be the prime concern. Per~entage
will have to be worked out having regard to the need only.
c For the purpose of achieving excellence in a professional institution,
merit indisputably should be a relevant criterion. Merit, as has been noticed
in the judgment, may be determined in various ways (Para 59). There cannot
be, however, any fool-proof method whereby and whereunder the merit of a
student for all times to come may be judged. Only, however, because a
D student may fare differently in a different situation and at different point of
time by itself cannot be a ground to adopt different standards for judging his
merit at different points of time. Merit for any purpose and in particular for
the purpose of admission in a professional cullege should he judged as far
as possible on the basis of same or similar examination. In oth~r words, inter
~ se merit amongst the students similarly situated should be judged applying
the same norm or standard. Different types of examinations, different sets of
questions, different ways of evaluating the answer books may yield different
results in the case of the same student.

Selection of students, however, by the minority institutions even for the
F members of their community cannot be bereft of merit. Only in a given
situation less meritorious candidates from the minority community can be
admitted vis-a-vis the general category; but therefor the modality has to be
worked out. For the said purpose de facto equality doctrine may be applied
instead of de jure equality as every kind of discrimination may not be violative
G of the equality clause. [See PradeepJain v. Union ofIndia, [1984] 3 sec 654.]

It may be true that some self-financed professional institutions have
been permitted to hold their own examination so as to enable the management
to fill up their seats from its own quota, as fixed by the State Government.
Although no complaint has yet been received by the respective Governments,
H it may be possible that the time was not ripe for it. As and when complaints
ISLAMIC ACADEMY OF EDUCATION.'" STATE [S.B. SINHA,J) 563

are received with regard to holding of an impartial and transparent test, the A
same has to be examined by the State/University. We may, however, place on
record that the State of Maharashtra has placed before us a chart showing
that some of the students had appeared at two examinations and one who got
only 8% in the common entrance test held by the State, passed the examination
held by the management. From the above chart supplied to us by the State
of Maharashtra, it appears that only three students who had appeared both B
at the common entrance test held by the State and the management had
passed the common entrance test held by the State whereas a large number
of students had passed the test held by the management, although they could
not pass the Common Entrance Test. The merit of the students whether
belonging to the minority community or 'otherwise, thus, may be required to C
be placed on more rigid test.

While consiaering this question, we may not also loose sight of the fact
that a student who aspires to take admission in a professional college keeping
in view the extent of competition he has to face, would like to appear in as
many examinations as possible. For the said purpose he or she may not D
choose only one State. Even in a State like Karnataka, as has been ~oticed
in T.MA. Pai Foundation (supra), a large number of private institutions exist.
But, if they are permitted to hold their own examinations, not only the
students will have to purchase different admission forms, which as noticed
hereinbefore, may cost between Rs.500 to Rs.1,000 but he may be asked to E
appear in examinations at various places on the same day or on the next day
and having regard to the distance, the transport facilities and other factors,
he may not be able to appear therein. Travelling from place to place for the
purpose of appearance at the examinations in quick .succession would ?.lso
entail a huge expenditure. It may also be difficult to direct that such
examinations be held with sufficient time gap. The fact remains that in terms F
of this judgment each State will be entitled to hold their own examinations.
We are also not oblivious of the fact that aHegations have been made that
some institutions even may not sell an admission form unless it is assured
of a hefty sum at the time of admission. It may be true that the States like
Karnataka, Kerala and Tamil Nadu have permitted the minority institutions to G
conduct their own examinations for the purpose of admitting the sturients of
their choice. Some institutions have pointed out that they have been holding
such examinations for a long long time on all-India basis and fairness and
transparency of such examinations have never been questioned by any State
or the statutory al.11horities. We do not intend to go into the correctness or
otherwise of the said plea. However, their cases may be considered separately H
564 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A by the appropriate body if any occasion arises therefor. While granting the
right to detennine the suitability of a candidate on the basis of marks obtained
in the qualifying examination or on the basis of their own examination, or an
examination conducted by the State, merit cannot be sacrificed. Some
mechanism as far as practicable must be found out also for the purpose of
B judging the inter se merit.

Furthermore, answers to Questions 5 (a) and (c), would go to show that
the minority unaided institution have a right to evolve their own machinery
for admitting the students on the basis of merit subject of course to passing
the fairness and transparency test. Even for non-minority professional
C institutions such a right has been recognized. There is no mechanism which
would ensure fairness or transparency of the examination held by each and
every unaided professional institution. A suggestion has been mooted out
that Associations/Federations of private institutions have been formed. It
may, thus, be possible to protect the right of the minority if such Associations/
Federations take a decision in this behalf in consultation with the statutory
D authorities or the concerned State as regards holding of a common entrance
test for the said purpose.

We may notice that Mr. R.N. Trivedi, learned Additional Solicitor General,
has submitted that the Central Government may hold such all-India examinations
but there are practical difficulties in this behalf, as has been rightly pointed
E out by Mr. Venugopal. The need of each State must be judged separately. A
number of students may like to take a chance of taking admission in more than
one State. Unless proper mechanism and _requisite infrastructure 'therefor is
created, as at present advised, it may not be possible for the Central Government
to hold any examination on all-India basis. There is another aspect of the
F matter which cannot be lost sight of. There must be an agency which would
have to detennine the equivalence of several examinations. Many universities
have adopted such a mechanism. The standard of education varies from State
to State or university to university or board to board. In such a situation,
equivalence of degrees must be considered for the said purpose by an
appropriate authority.
G
In the aforementioned premise, I am of the opinion that the right of the
minorities should be protected and fairness and transparency in holding such
examinations would also be maintained if the minority institutions come to a
consensus through their association or federation to hold a common test
under the supervision of a monitoring committee which may be subject to
H
ISLAMIC ACADEMY OF EDUCATION.'" STATE [S.B SINHA, J] 565
verification at a later stage by taking recourse to : ( 1) report back systelJI; \2) A
all answer papers may be preserved; and (3) in case of dispute some
independent agency may determine the same,

It goes without saying that having regard to the number of institutions
vis-a-vis number of candidates with reference to the local needs, it will be
open to the State/University to fix higher cut-off marks than prescribed by the B
Medical Council oflndia or the All India Council for Technical Education. So
far as common entrance test proposed to be held by the Federation/Association
of private unaided professional institutions is concerned, the modalities and
the detailed procedure therefor must be worked out so that it may not cause
any undue inconvenience to either the students or the institution(s). By way C
of an example, we may state that if a common entrance test is held under the
auspices of the Federation/Association, it must clearly spell out that those
who belong to minority community, whether based on religion or language,
shall be admitted only in the institutions run by such community and not in
the institutions run by the other community at the first instance. Only in the
event the seats remain unfilled up, they would cle.arly be filled up by the D
students belonging to the general category including those who do not
belong to that particular community running the institution. Similarly, the
mode and manner in which the expenses are to be incurred for holding the
examinations, the apportionment thereof as well the disbursement of the
amount earned by way of selling the admission fonns etc. have to be worked E
out by the Committee.

The minority institutions imparting professional courses may have a
legal or constitutional right to hold their own examination; but a serious
consideration is required to be bestowed as to whether for the purpJse of
judging merit they 'Should opt for the Common Entrance Test held by the p
State. Such a course, if resorted to, would not only be helpful for detennining
the inter se merit between the students/candidates but also would be sufficient
to be indicative of the fact how and to what extent the students belonging
to minorities lag behind the majority so that special efforts can be made to
bring their standard up to the national level.
G
The quota of seats to be filled up by the State Government for the poor
or weaker sections of society may be fixed on the basis of the entrance test
held by the concerned State Government or the University. Economic disability
of a meritorious st~dent should come to the forefront for detemtining criteria
as regard poor or weaker sections of the society.
H
566 SUPREME COURT REPORTS (2003] SUPP. 2 S.C.R.

A There cannot, however, be any gain-saying that the appropriate statutory
authority on a deeper consideration of the matter may prescribe a suitable
method for the purpose of detennining the merit as also the fair and transparent
manner in which such examinations can be conducted. Such a power exists
under the UGC Act, MCI Act and AICTE Act. The relevant enactments
B wherein these statutory authorities have been created provide for such law.
However, assuming such a machinery is not evolved, the State may constitute
a body which may be headed by a person who has been a judge of the High
Court to be nomfoated by the Chief Justice thereof. Standard of education at
no cost shall be given a go by.

C Furthermore, any institution if it thinks proper and expedient, may file
an application for grant of exemption so as to enable it to hold its own
examination. An application in this behalf should be filed by the end of April
of the previous year in which such examination is sought to be held. The
aforementioned body would pass an appropriate order within three months
from the date of receipt of such representation upon giving an opportunity
D of hearing and placing of material in support of its stand, to the institution
concerned.

Several States like State of Tamil Nadu, Kamataka and Kerala have
pennitted the educational institutions to hold their own examination for the
purpose of admitting students within their quota. Some of the States like
E Maharashtra and Gujarat insist on admitting the students through Common
Entrance Test. The following chart gives a glimpse as to how different States
understood the judgment of this Court differently:

State Admissions Govt. Management

F Andhra Pradesh 85% 15%
Delhi 95% 15%Max
Gujarat 85% 15%
Haryana 15%AIEEE 15%
70%CEET 2003
G Karnataka 75% 25%
Kerala 500/o 500/o
Orissa 85% 15%
TamiJNadu 500/o 500/o
Uttar Pradesh 85% 15%
H
ISL..\.MIC ACADEMY OF EDUCATION. v. STATE [V.N. KHARE, CJ.] 567

Chhattisgarh 6()0/o 40% A
Maharashtra 85% 15% (These seats
must also be filled from the
State common entrance test
list)
Unless there exists any exigency normally the institutions will have the B
right to admit a higher percentage of students depending upon their need.
However all such students must be admitted only on merit. !'1 the event, some
seats remain vacant, they must be filled by general category students strictly
on merit.

As noticed hereinbefore, different States and different High Courts C
Ohave laid down different percentages of seats for management and the State.
The learned counsels appearing on behalf of parties have submitted that this
Court may, with a view to avoid any future controversy, fix a definite percentage
for the said purpose. We are afraid that it is not possible. Different institutions
may be established by different minority communities. The need of the minority D
community may differ from State to State. The need of the minority community
may have a nexus with the population belonging to that community in that
State. It will further depend upon various other relevant factors. By way of
example, we may say that in a State where the percentage of a particular
religion may be 30 or 35, the minority institution established by members of
that religion may have a higher stake than the members of the community E
professing a religion but the population of which is negligible. Similar may be
the case with minority institutions based on language.

The percentage of seats will also depend upon the need of the community
in a particular State as also the need of the institution itself. The nature of
the professional course would a'lso have relevance. All these factors must be F
taken into consideration by the appropriate committee or Body so long a
statutory regulation is not framed in this behalf.

Furthermore, the need of the community vis-a-vis the local needs must
be judged upon taking into consideration the relevant factors and ignoring G
irrelevant ones. In terms of Paragraph 68 of the judgment, local need would
be a relevant factor for the purpose of determining the percentage of students
who would be admitted on non-minority quota. Local needs, if it is compelling
state interest, will have a primacy over the need of the minority community
and in that view of the matter it would not be correct to lay down a proposition
of law that the need of that community in the State would be paramount. Each H
568 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A case, thus, has to be considered on its own merit and no hard and fast rule
can be laid down therefor.

For the aforementioned purpose also, a machinery should be evolved
in the respective States, the decision of which shall be final and binding.

B However, there may not be any permanent Committee functioning as a
tribunal. Such a body, if any, must be created under a statute. A tribunal with
an adjudicatory power should not be directed to be created by this Court in
exercise of its power under Article 142 of the Constitution of India. This
direction is only interim in nature and is being issued in the interest of all
-
C concerned. It is, therefore, clarified that the body created in terms of this
judgment would function only so long a statutory body, if any, does not come
into being by reason of a statute or statutory rules. The Legislature or the
rule making authority may, however, lay down the procedure for proper
functioning thereof.

D MERIT:
Technical profession in general and medical profession in particular in
all countries and in all ages has been considered to be a noble profession.
To acquire excellence, these professions demand a very high calibre, which
criteria can be satisfied only by the meritorious students. If we want to
E achieve very high standard which would be comparable to the standard of
the developed countries, then merit and merit alone should be the basis of
selection for the candidates.

Secondly, not only to maintain high standard of education, but als:> to
maintain uniformity of standard, the right of selection of candidates for any
F professional course cannot be left to the discretion of any inoividual
management. Efforts must be made to find out one single standard for all the
institutions.

Thirdly, to ensure high standard of education and for that purpose to
ensure admission to the most eligible candidates, requiring merit in a poor
G country like ours, the tuition and other fees should be within the reach of
common people.

So far as minority institutions are concerned, merit criteria would have
to be judged like a pyramid. At the kindergarten, primary, secondary levels,
H minorities may have 100% quota. At this level the merit may not have much
ISLAMIC ACADEMY OF EDUCATION."· STATE [V.N. KHARE, CJ] 569

relevance at all but at the level of higher education and in particular A
professional education and post graduate level education, merit indisputably
should be a relevant criteria. At the post-graduation level, where there may
be a few seats, the minority institutions may not have much say in the matter.
·" Services of doctors, engineers and other professionals coming out from the
institutions of professional excellence must be made available to the entire B
country and not to any particular class or group of people. All citizens
including the minorities have also a fundamental duty in this behalf.

HUMAN RIGHTS ASPECTS OF SELECTION ON THE BASIS OF MERIT:

This aspect of the matter may also be considered from Human Rights C
angle.

Rights of minorities, on the one hand, and rights of persons to have
higher education and right of development should be so construed so as to
enable the Court to give effect thereto.

The Universal Declaration of Human Rights, 1948 provides for 27 rights. D
Right of Education is also one of the human rights. Article 26 reads thus:

"(I) Everyone has the right to education. Education shall be free, at
least in the elementary and fundamental stages. Elementary education
shall be compulsory. Technical and professional education shall be E
made generally available and higher education shall be equally
accessible to all on the basis of merit."

(2) Education shall be directed to the full development of the human
personality and to the strengthening of respect for human rights and
fundamental freedoms. It shall promote understanding, tolerance and F
friendship among all nations, racial or religious groups, and shall
further the activities of the United Nations for the maintenance of
peace. Parents have a prior right to choose the kind of education that
shall be given to their children."

(Emphasis applied) G
Article 3 of Convention Against Discrimination in Education (1960)
reads thus:

"Article 3 undertakes "to ensure, by legislation, where necessary, that
there is no discrimination in the admission of pupils to educational H
570 SUPREME COURT REPORTS [2003} SUPP. 2 S.C.R.

A institutions; not to allow any difference of treatment by the public
authorities between nationals, except on the basis of merit or need, in
the matter of school fees and the grant of scholarships to give foreign
nationals resident within their territory the same access to education
as that given to their own nationals."

B Apart from the aforementioned rights, Right to Development is also a
human right. "Development" connotes an ongoing process. An economic
prosperity or elimination of poverty is not the only goal to be achieved but
along with it allows individuals to lead a life with dignity with a view to
participate in the Governmental process so as to enable them to preserve their
C identity and culture.

We may refer to the UN Declaration on the Right to Development, 1986.
The Declaration describes development as a comprehensive economic, social,
cultural and political process, which aims at constant improvement of well
being of people and of individuals on the basis of their active, free and
D meaningful participation in the process.

In the UNESCO Convention against Discrimination in Education, the
States parties agree (Article 5[c]) that "it is essential to recognize the right
of members of national minorities to carry on their own educational activities,
including the maintenance of schools and, depending on the educational
E policy of each State, the use or the teaching of their own language," and set
out the circumstances in which this right may be exercised. The European
Convention on Human Rights contains a provision (Article 14) in which
"association with a national minority" is listed among a series of grounds
upon which discrimination is prohibited. The International Covenant on Civii
F and Political Rights, adopted by the UN General Assembly in 1966, includes
an article on the rights of persons belonging to minorities which reads:

"Article 27. In those States in which ethnic, religious or linguistic
minorities exist, persons belonging to such minorities shall not be
denied the right, in community with other members of their group, to
enjoy their own culture, to profess and practice their own religion, or
G
to use their own language."

Among the decisions of principal organs of the United Nations which
have dealt with the question of-special protective measures for ethnic, religious,
or linguistic groups are three resolutions of the General Assembly: (I) on the
H future government of Palestine, (2) on the question of the disposal of the
ISLAMIC ACADEMY OF EDUCATION. v. STA TE [V.N. KHARE, CJ.] 571
former Italian colonies and (3) on the question of Eritrea. In addition, the A
Statue of the City of Jerusalem, approved by the Trusteeship Council 1 on 4
April 1950, provides special protective measures for ethnic, religious, or
linguistic groups in articles dealing with human rights and fundamental
freedoms, the legislative council, the judicial system, official and working
languages, the educational system and cultural and benevolent institutions, B
and broadcasting and television.

From the texts of the instruments and decisions mentioned above, it
may be inferred that the term "minority" is applied internationally to two .
distinct categories of persons: (a) minorities whose members desire equality
with dominant groups in the sole sense of non-discrimination, and (b) those C
whose members desire equality with dominant groups in the sense of non-
discrimination and the recognition of certain special rights and the rendering
of certain positive services. The kind of "minority rights" that they feel they
are entitled to claim iftheir equality within the State is to be real includes one
or more of the following:
D
(a) provision of adequate primary and secondary education for the
minority in its own language and its cultural traditions;
(b) provision for maintenance of the culture of the minority through
the establishment and operation of schools, libraries, museums,
media of information, and other cultural and educational E
institutions;

(c) provision of adequate facilities to the minority for the use of its
language, either orally or in writing, in the legislature, before the
courts, and in administration, and the granting of the right to use
that language in private intercourse; F
(d) provision for respect of the family law and personal status of the
minority and their religious practices and interests; and

(e) provision of a certain degree of autonomy.

Several areas are sought to be secured wherefor the struggle continues. G
The gap between the developed and the developing countries is a yawning
one. Whereas there has been a rapid economic growth in a few countries
bringing millions of people out of poverty, narrowing the gap between haves
and have-nots, a large number of countries have seen the gap grow and
poverty increase. Development and the eradication of poverty vis-a-vis human
rights must be seen in that perspective. H
572 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A The right to establish professional colleges both by minorities and non-
minorities has been found in Article l 9(1)(g) as also Article 30 of the
Constitution of India. These rights vis-a-vis restrictions and limitations
thereupon should be construed not only from economic point of view but
also having regard to the international treaties, declarations and conventions
B on Human Rights. The right of a minority is a human right so also the righ.t
of development. Thus, subject to reasonable restrictions, any unaided
institution imparting professional courses may although exercise greater
autonomy in the matter of management and determination of the fee structure,
it will have a limited right so far as the right to admit students is concerned.
T.M.A. Pai Foundation says that merit shall be the criteria. Right of development
C finds place in WTO and GA TT. It takes into consideration globalisation and
opening up of economy. Excellence in professional education must be viewed
from the economic interest in the country. In order to compete with the other
developed countries, GDP of India should be around 15% instead of present
rate of 5%. This can be achieved only by producing students of excellence,
which can be achieved only by encouraging institutions of excellence imparting
D professional education to those who are meritorious. Giving encouragement
to the students, having better merit will, thus, have a direct nexus with the
economic and consequently the national interests of the country. The right
of development from the human right point of view must be construed liberally.
When there are two competing human rights namely human rights for the
E religious minorities and the human rights for development, having regard to
the economic and national interest of the country in the matter of admission
of students, the latter should be allowed to prevail subject to protection of
the basic minority rights. The State may have to strike a delicate balance
between these two competing rights. Furthermore, the right to admit students
may vary from course to course, discipline to discipline. At the stage of post
F graduate level, there may be only one seat ·or two seats, and, thus, in such
a situation the right of the minority institutions to admit a student may be less
than in the case of non-professional course.

"Proper education", Nani Palkhiwala said, "should lead to civilization."
G Recently, in Kapila Hingorani v. State of Bihar, 1T (2003) 5 SC 1, a Bench
of this Court noticed the following observations of Field, J. in Munn v.
Illinois, (1877) 94 US 113 as to what i:; "Life", which was in the following
terms:

".Something more than mere animal existence and the inhibition against
H the deprivation of life e.xtends to all those limits and faculties by
ISLAMICACADEMYOF EDUCATION. v. STATE (V.N. KHARE, CJ] 573
which life is enjoyed." A
Therein it was noticed :

.. ~·. "The right to development in the developing countries is itself a
human right. The same has been made a part of WTO and GA TT. In
'The World Trade Organization, Law, Practice, and Policy (Oxford) by B
Matsushita Schoenbaum and Mauroidis at page 389, it is stated:

"The United Nations has proclaimed the existence of a human
right to development. This right refers not only to economic growth
but also to human welfare, including health, education, employment,
social security, and a wide-range of other human needs. This human C ·
right to development is vaguely defined as a so-called third-generation
human right that cannot be implemented in the same way as civil and
political human rights. Rather, it is the obligation of states and
intergovernmental organizations to work within the scope of their
authority to combat poverty and misery in disadvantaged countries. "
D
[Emphasis applied]

-·.. Poverty to a great extent can be combated through education. Having
regard to globalisation and opening up of the market, the State expects
various medical colleges and educational institutions and universities to
move in. Under WTO and GA TT human development has taken its firm root. E
A decent life to the persons living in the society in general is perceived.

In the said scenario this Court in Kapi/a Hingorani (supra) observed:

"The States of India are welfare States. They having regard to the
constitutional provisions adumbrated in the Constitution of India and F
in particular Part IV thereof laying down the Directive Principles of the
State Policy and Part IV A laying down the Fundamental Duties are
bound to preserve the practice to maintain the human dignity."

To achieve this, the promotion of human development and the
preservation and protection of human rights proceed from a common platform. G
Both reflect the commitment of the people to promote freedom, the well-being
and dignity of individuals in society. Human development as a human right
has a direct nexus with the increase in capabilities of human beings as also
the range of things they can do. Human development is eventually in the
interest of society and on a larger canvas, it is in the national interest also. H
574 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A As a human right, human development finds its echo in several areas as for
example in excellence in professional education, be it the study of medicine,
engineering or law. Progress and development in these fields will not only
give .a boost to the economy of the country but also result in better living
conditions for the people of India.

B In T.M.A. Pai Foundation's case (supra), this Court called upon the
private unaided institutions including the minority educational institutions to
fulfill the hopes and aspirations of the meritorious students and in particular
the meritorious socially and educationally backward students. Higher education
as contained in Article 26 must be based on merit. The competing human
. C rights of the minorities vis-a-vis any other citizen, thus, requires a delicate
balance.

Furthermore Article 5 lAG) enjoins a duty of every citizen of India inter
alia to strive towards excellence in all spheres of individual and collective
activity so that the nation constantly rises to higher levels of excellence and
D achievement.

In T.M.A Poi Foundation, (supra), this Court in no uncertain terms said
that merit would be the first criteria for imparting professional education. It
must be given full effect with the aid of these additional reasons.

E RECOGNITION/AFFILIATION:

Although the minorities have a right to establish institutions of their
own choice, they admittedly do not have any right of recognition or affiliation
for the said purpose. They must fulfill the requirements of law as also other
conditions which may reasonably be fixed by the appropriate Government or
F the university.

In T.M.A. Pai Foundation, (supra) it was laid down that certain conditions
can be imposed as regards admission of students, mode of holding examinations
at the time of grant of recognition. A question has been raised by Mr. Nariman
that once recognition has been granted, no further restriction can be imposed.
G We do not agree. There exist some institutions in this country which are more
than a century old. It would be too much to say that only because an
institution receives recognition/affiliation at a distant point of time the
appropriate Government is denuded of its power to lay down any law iri
imposing any fresh condition despite the need of change owing to passage
H of time. Furthermore, the Parliament or the State Legislatures are not denuded
Iii

ISLAMIC ACADEMY OF EDUCATION. v. STATE [V.N. KHARE, CJ.) 575
of its power having regard to restrictions that may satisfy the test of clause A
(6) of Article 19 of the Constitution of India or regulations in tenns of Article
30 depending upon the national interest/public interest and other relevant
factors. We, however, wish to emphasise that the State/University while
granting recognition or the affiliation cannot impose any condition in
furtherance of its own needs or in pursuit of the Directive Principles of State B
Policy.

AN EPILOGUE:

H is unfortunate that a Constitution Bench had to be constituted for
interpreting a I I-Judge Bench judgment. Probably in judicial history of India, C
this has been done for the first time. It is equally unfortunate that all of us
cannot agree on all the points, despite the fact that the matter involves
construction of a judgment. In the name of interpretation we have to some
extent, however little it may be re-written the judgment. We have laid down
new laws and issued directions purported to be in terms of Article 142 of the
Constitution. We have interpreted T.M.A. Pai; but we have also made D
.endeavours to give effect to it. In some areas it was possible; in some other
it was not.

We have refrained ourselves from expressing any opinion at this stage
as to whether grant of settlement of Government land at a throw-away price
or allowing the private institutions to avail the facilities of Government E
hospitals would amount to grant of aid or not. We have also not expressed
any opinion on cross-subsidy.

The superior courts in India exist for interpretation of Constitution or
interpretation of statutes. They cannot evolve a fool-proof system on the.
basis of affidavits filed by the parties or upon hearing their counsel. Certain F
details of vexing problems on the basis of tile interpretation given by this
Court must be undertaken by the statutory bodies which have the requisite
expertise. It is expected that statutory bodies would be able to perform their
duties for which they have been established. The doors of the Court should
not be knocked every time, if a problem arises in implementation of the G
judgment, however slight it may be. The Court has its own limitations. The
problems which can be sorted at the ground level by holding consultations
should not be allowed to be brought to the Court. It is, in that view of the
matter, we have thought it fit to direct setting up of committees for the
aforementioned purposes.
H

(
;.

576 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A In the present constitutional set up having regard to Entry 66, List I of
the Constitution of India, the legislative power of the State may be very
limited; the extent whereof may have to be detennined in appropriate cases.
But the stake of the State in such matters is also not minimal. The State has
to evolve its own policies generating the source of employment.

B We have come across several schemes framed by the States in terms
whereof incentives are being given to the private industries for generating
employment or reduction in taxes is being proposed if graduates are employed.
The respective States, therefore, must apply its mind while granting essentiality
certificate inasmuch as the human resource development problems will have
C to be faced by it. In evolving a sound policy decision in this behalf, the
statutory bodies shall also have to lend their ears to the respective State
Governments while granting permission for establishment of the professional
educational institutions. The Human Resource Development Ministry of the
Central Government should also play its role.

D The I.As. for clarification are, thus, disposed of. The writ petitions may
now be placed before appropriate Benches for disposal. In the facts and
circumstances of this case, there shall be no order as to costs.

K.K.T. Referred to the Larger Bench.

i-

\.