Islamic Academy of Edn. & Anr Vs. State of Karnataka & Ors [2003] Insc 378 (14 August 2003)
S.B. Sinha
with SLP(C) Nos. 11286, 11391, 11189- 11195/2003, W.P.(C) Nos. 355/1993, 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)No. 261, 275, 280 & 289/2003 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 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 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 (1) 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 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.
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 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, discipline in institution and several other matters. Such regulatory measures have been the subject matter of various decisions of this Court.
BACKGROUND:
This Court in Unni Krishnan J.P.and Others vs. State of Andhra Pradesh and Others [(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 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.
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.
Karnataka and Others [(2002) 8 SCC 481] noticed the same stating :
"The hearing of these cases has had a chequered history. Writ Petition No. 350 of 1993 filed by the Islamic Academy of Education and connected petitions were placed before a Bench of 5 Judges. As the Bench was prima facie of the opinion that Article 30 did not clothe a minority educational institution with the power to adopt its own method of selection and the correctness of the decision of this Court in St. Stephen's College v. University of Delhi [(1992) 1 SCC 558] was doubted, it was directed that the questions that arose should be authoritatively answered by a larger Bench.
These cases were then placed before a Bench of 7 Judges. The questions framed were recast and on 6th 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 III of the Seventh Schedule, the question of who would be regarded as a "minority" was required to 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:- "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 of Gujarat, 1975(1) SCR 173, it is clarified that this sized Bench would not feel itself inhibited by the views expressed in those cases since the present endeavour is to discern the true scope and interpretation of Article 30(1) of the Constitution, which being the dominant question would require examination in its pristine purity. The factum is recorded." 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.
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 of External Common Entrance Test (CET). The State Governments 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.M.A. Pai Foundation (supra) differently. The perceptions of the 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 11-Judge Bench of this Court. Some institutions as also the State of Kerala had also filed Special Leave Petitions against the interim orders passed by the High Courts. Some writ petitions under Article 32 of the Constitution of India have also been filed. Keeping in view the importance of the question, this Court issued notices to all the State Governments.
In the Special Leave Petitions and the Writ Petitions several other questions have also been raised but as at present advised this Bench intends to confine itself to the interpretation of judgment of this Court in T.M.A. Pai Foundation (supra) leaving other questions open for consideration by the appropriate benches.
In these matters this Court is not at all concerned with the rights of the aided minority and non-minority institutions and restrictions imposed by the States upon them but we are concerned only with the rights and obligations of private unaided institutions run by the minorities and non-minorities.
It was urged that while interpreting the judgment, this Court should bear in mind the salient aspects of the findings in T.M.A. Pai (supra) that is to say :
I ON THE FUNDAMENTAL RIGHTS OF EDUCATIONAL INSTITUTIONS:
(i) Citizens have a fundamental right to establish and administer educational institutions under Article 19(1)(g), 21, 26 and 30 of the Constitution (Paras 25 & 26) and, thus, the said rights cannot be taken away/ restricted.
(ii) Such a fundamental right extends to education at all levels including professional education. (Para 161)
(iii) The right to establish and administer educational institutions comprises of the right to
(a) admit students
(b) set up a reasonable fee structure
(c) constitute a governing body
(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 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-Ã -vis the minority communities must be judged keeping in view the distinction between
(a) unaided and aided institutions
(b) minority and non-minority institutions (Paras 46-73);
II ON THE DEGREE OF CONTROL
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 in Unnikrishnan has been abolished and consequent directions 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 fixing the fee. (Para 38) Minority institutions are not to subsidize the State nor any principle of cross-subsidy can be deciphered therefrom.
(iii) In the case of unaided institutions, maximum autonomy has to be conceded as contradistinguished from the power of the State to 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 or their Departments. (Paras 55, 61, 62 & 72)
(iv) Such a right of control over the aided institutions inheres for the purpose of oversight and restraints so as to
(a) ensure proper utilization of funds (Para 143)
(b) permit the Government to have some seats to the extent of its reservation policy (Paras 42-44).
(v) Although the aided institutions are subject to clause (2) of Article 29 and clause (3) of Article 28 of the Constitution, but the unaided minority institutions being not so subject would not be bound by the restraints emanating therefrom so long they exercise their right to admit and select students in a transparent and non-arbitrary manner;
III ON ADMISSION OF STUDENTS BY UNAIDED INSTITUTIONS
(i) Unaided institutions have an unbridled right on admission of students, comprising of devising a test for selecting students of their choice (Para 36, 40-41, 50). Such a right emanates from the principle that every private and public owner of an institution has the power to admit qualified students of their own choice (Para 42-44).
(ii) As such a right also emanates with a view to maintain the atmosphere and traditions of the private educational institutions, the general principles for unaided institutions would 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.
(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 on merit is adopted, the right to select qualified students on a fair and discernable basis cannot be interfered with (Para 65).
IV ON THE NATURE AND EXTENT OF THE GOVERNMENT QUOTA FOR 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 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.
(iii) Admission to a small percentage for weaker sections which the 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 Gujarat and Another [(1974) 1 SCC 717].
(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.
(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:
(a) reservation policy of the State
(b) regional affiliation or residence within the State
(c) religion.
(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 than 50% of the total in any batch after taking into account the reservation for SC, ST and OBC.
(ix) The unaided institutions cannot be subject to onerous financial impositions nor can they be asked to perform the functions of the State. (Para 61)
(x) In any event, the quota policy cannot be imposed on unaided institutions to the extent of laying down standards of a reasonable nature that do not cut down its operational autonomy and financial independence. (Paras 36, 40, 43, 53, 59, 65).
V. FEE FIXATION FOR UNAIDED INSTITUTIONS
As unaided institutions are to be given maximum autonomy in the matter of fixation of fee, there cannot be :
(a) a rigid fee structure (para 54)
(b) Such fees are to be fixed by the unaided institutions (Para 56, 57).
(c) The only impediment in this behalf is that no capitation fee can be charged nor the institutions can take recourse to profiteering since education is charitable in nature.
Therefore a reasonable revenue surplus for the purpose of development of education and expansion of education would be permissible (Para 57). While 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 permitted.
(d) Only because fee is to be charged on a reasonable development 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).
(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:
(a) Its ratio must be found in the answers ultimately given.
(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.
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) 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) 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.)
(iv) As merit is usually determined 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 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 which provides for
(a) a system to provide merit based selection while granting sufficient discretion to the management
(b) As certain percentage of seats have to be reserved for the management, the rest can be filled up on the basis of counseling by the State agencies which would take care of poorer and backward sections of the society.
The prescription of the percentage for the said purpose must be left with the State (Para 68).
(vi) Professional institutions must apply a more rigorous test, which would be subject to greater regulation by the State or by the University. (Answer to Question No. 4).
(vii) As the State while granting essentiality certificate is to consider the local needs and further guarantee smooth functioning of such institutions failing which the State has to adjust the students of the institutions to their own institutions, it has a great stake in the matter. Choice and selection of students in professional courses are directly linked with maintaining the standards of medical 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 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 forms which are priced at Rs. 500 to Rs. 1000/- as also by way of travelling, boarding and lodging so as to enable them to appear at various examinations. 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 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 termed as capitation fee a large number of unaided institutions are selling their seats, which must not be allowed to continue, and must be curbed with 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 se minorities and inter se weaker sections can be taken care of 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.
The right to establish an institution is provided for in Article 19(1)(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.
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 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.
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 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 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 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 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.
(f) 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 appropriate.
(g) that it would be appropriate for the University Grants Commission 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 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.M.A. Pai Foundation (supra) the Scheme framed by this Court restricting the right of the citizen to establish private unaided institutions including minority institutions and manage the same was held to be unconstitutional stating :
(1) 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 institutions;
(2) the provision made for free seats and payment seats amounted to subsidising education of one segment of society 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 of the directions in Unnikrishnan are, thus, also unconstitutional.
ST. STEPHEN'S COLLEGE:
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 upon the right under Article 30 of the Constitution of India. It was further held that regulations can be imposed by the State for intake of minority categories with regard to need of the minority in the area which the institution intends to serve.
A question, however, arose therein as to whether the State could impose regulatory measures on the institutions run by the minority community which provides for admission by conducting interviews but not solely on the marks obtained in the qualifying examination? In that case, the State had imposed restrictions on the college management compelling it to make admission exclusively on the basis of marks obtained in the qualifying examination. But the management, in addition to the marks obtained by the students, also conducted interviews for making admission to the college. This Court observed that the denial of power 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 should be beneficial to the institution or for the betterment of those who join such institutions.
In T.M.A. Pai Foundation (supra) while upholding the judgment in St. Stephen (supra), that part of the direction whereby the right of the minority 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 unreasonably.
QUESTIONS POSED IN T.M.A. PAI FOUNDATION:
In T.M.A. Pai Foundation (supra), the Bench framed the following questions:
1. 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 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 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?
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 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?
(c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/ withdrawal thereof, and appointment of staff, employees, teachers and principals including their service conditions and regulation of fees, etc. would interfere with the right of administration of minorities?
6. (a) Where can a minority institution be operationally located? Where a religious or linguistic minority in State 'A' establishes an educational institution in the said State, can such educational institution grant preferential admission/ reservations and other benefits to members of the religious/linguistic group from other States where they are non-minorities? (b) Whether it would be correct to say that only the members of that minority residing in State 'A' will be treated as the members of the minority vis-Ã -vis such institution?
7. Whether the member of a linguistic non-minority in one State can establish a trust/society in another State and claim minority status in that State? 8. Whether the ratio laid down by this Court in St. Stephen's case (St. Stephen's College v. University of Delhi) is correct? If no, what order?
9. Whether the decision of this Court in Unni Krishnan, J.P. v. State 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(1) read 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? 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 considered the questions answered by the Bench under the following headings:
1. 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 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
5. To what extent can the rights of aided minority institutions to administer be regulated?
We are not concerned with the subject under heading 1. The core issues in this matter revolve around headings 2, 3 and 5 aforementioned.
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 terms:
A.3(b) Article 30(1) gives religious and linguistic minorities the right to establish and administer educational institutions of their choice. The use of the words "of their choice" indicates that even professional educational institutions would be covered by Article 30.
A.4 Admission of students to unaided minority educational institutions, viz., schools and undergraduate colleges where the scope for merit-based selection is practically nil, cannot be regulated by the State or University concerned, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards.
The right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution, the state government or the university may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it is more so in the matter of admissions to professional institutions.
A minority institution does not cease to be so, the moment grant-in-aid is received by the institution. An aided minority educational institution, therefore, would be entitled to have the right of admission of students belonging to the minority group and at the same time, would be required to admit a reasonable extent of non-minority students, so that the rights under Article 30(1) are not substantially impaired and further the citizens' rights under Article 29(2) are not infringed. What would be a reasonable extent, would vary from the types of institution, the courses of education for which admission is being sought and other factors like educational needs. The State Government concerned has to notify the percentage of the non-minority students to be admitted in the light of the above observations. Observance of inter se merit amongst the applicants belonging to the minority group could be ensured. In the case of aided professional institutions, it can also be stipulated that passing of the common entrance test held by the state agency is necessary to seek admission. As regards non-minority students who are eligible to seek admission for the remaining seats, admission should normally be on the basis of the common entrance test held by the state agency followed by counselling wherever it exists.
A.5(a) A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or selection made should not be tantamount to mal-administration.
Even an unaided minority institution ought not to ignore the merit of the students for admission, while exercising its right to admit students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence.
A.5(b) While giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe bye-rules or regulations, the conditions on the basis of which admission will be granted to different aided colleges by virtue of merit, coupled with the reservation policy of the state qua non- minority students. The merit may be determined either through a common entrance test conducted by the University or the Government concerned followed by counselling, or on the basis of an entrance test conducted by individual institutions - the method to be followed is for the university or the government to decide. The authority may also devise other means to ensure that admission is granted to an aided professional institution on the basis of merit.
In the case of such institutions, it will be permissible for the government or the university to provide that consideration should be shown to the weaker sections of the society.
A.5(c) So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to an university or board have to be complied with, but in the matter of day-to- day management, like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself.
For redressing the grievances of employees of aided and unaided institutions who are subjected to punishment or termination from service, a mechanism will have to be evolved, and in our opinion, appropriate tribunals could be constituted, and till then, such tribunals could be presided over by a Judicial Officer of the rank of District Judge.
The State or other controlling authorities, however, can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher or a principal of any educational institution.
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.
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 Unni Krishnan 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 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 view.
CORE QUESTIONS:
(i) Whether unaided professional institutions are entitled to lay down their own fee structure?
(ii) Whether in view of the judgment of this Court in T.M.A. Pai 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?
RELEVANT FINDINGS OF THIS COURT IN T.M.A. PAI FOUNDATION
The right to establish and administer educational institutions 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 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-Ã -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.
Quadri, J. agreed with the aforementioned view stating:
"259. In regard to the minorities seeking recognition and/or aid it was observed in Kerala Education Bill, 1957 (AIR 1958 SC 956 :
1959 SCR 995) that the minorities cannot surely ask for aid or recognition 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 excellence of the institutions to be aided", (emphasis supplied) Thus, it is clear that regulations postulated for granting recognition or aid ought to be with regard to the excellence of education and efficiency of administration viz. to make certain healthy surroundings for the institutions, existence of competent teachers possessing requisite qualifications and maintaining fair standard of teaching. Such regulations are not restrictions on the right but merely deal with the aspects of proper administration of an educational institution, to ensure excellence of education and to avert maladministration in minority educational institutions and will, therefore, be permissible. This is on the principle that when the Constitution confers a right, any regulation framed by the State in that behalf should be to facilitate exercise of that right and not to frustrate it." Pal, J. also agreed with the said view stating:
"Similarly, the Constitution has also carved out a further exception to 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 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 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." One of us (Variava, J.) speaking for himself and Bhan, J. agreed with the majority 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 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 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 presided over by a Judicial Officer of the rank of District Judge. The State or other controlling authorities, however, can always prescribe the minimum qualifications, salaries, experience and other conditions bearing on the merit of an individual for being appointed as a teacher of an educational institution.
Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State without interfering with overall administrative control of Management over the staff, Government/University representative can be associated with the selection committee and the guidelines for selection can be laid down. In regard to un-aided minority educational institutions such regulations, which will ensure a check over unfair practices and general welfare, of teachers could be framed.
There could be appropriate mechanism to ensure that no capitation fee is charged and profiteering is not resorted to.
The extent of regulations will not be the same for aided and un-aided institutions." The majority held that there is an apparent conflict between the provisions of clause (2) of Article 29 and clause (1) of Article 30.
Article 29 guarantees the right to every citizen not to be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds 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 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 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 of us Variava, J., speaking for himself and Bhan, J. clearly held that where the minority institutions take aid from the State they do not 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 to the different religions should all have a feeling of equality and non- 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, 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 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.
Expression 'minorities' although is not defined in the Constitution, one of us Khare, CJI, referred to the Year Book on Human Rights (1950) 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 answering the question No. 7 was left open to be answered by the appropriate Benches.
The majority opined that the minority status of a group of persons would be determined on the basis of population of the State or Union Territory concerned and not on the whole of the country. It was further held that education within the meaning of the provision of Article 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) that education is not a 'business' or 'occupation' within the meaning of Article 19(1)(g) of the Constitution of India, wherein and incorporating the doctrine of res extra commercium, the Court had observed :
"While the conclusion that 'occupation' comprehends the establishment of educational institutions is correct, the proviso in the aforesaid observation to the effect that this is so provided no recognition is sought from the state or affiliation from the concerned 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) and the directions issued to the Government, UGC and other concerned bodies to give effect to the same vis-Ã -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.
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 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 :
"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 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), we may set out the observations of this Court in T.M.A. Pai Foundation (supra) as follows:
1. Establishment of Educational Institutions All citizens have a right to establish and administer educational institutions under Articles 19(1)(g) and 26, but this right is subject to provisions of Articles 19(6) and 26-A. (See Answer to Question Nos. 10 & 11).
2. Admission to Courses (i) Private Unaided Professional Colleges:
(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 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)
(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 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 Rules or Regulations the conditions on the basis of which the 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 individual institution, and method to be followed is for the Government or University to decide.
2. (iii) Private aided minority institutions:
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 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 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 ..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 of students belonging to weaker sections by granting them free scholarships or scholarships if not granted by the Government (paragraph 53).
4. Fee Structure
(i) ..Scheme of "free" and "Payment" seats was evolved on the 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 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).
(ii) The decision in Unni Krishnan insofar as it framed the Scheme relating to grant of admission and fixing fee was not correct, and to that extent the said decision and consequent direction given to UGC, AICTE, Medical Council of India, Central and State Governments etc., is overruled. (Paragraph 45).
(iii) A rational fee structure should be adopted by the management and it would not be entitled to charge capitation fee and appropriate machinery can be devised by the State or University to ensure that no capitation fee is charged and that there is no profiteering, though a reasonable surplus in furtherance of education is permissible. The conditions of granting recognition or affiliation can broadly cover academic and educational matters including the welfare of students and teachers (Paragraph 69, Q.9).
The problem presented in these matters should be viewed from the aforementioned perspective.
There is a fundamental right to set up educational institutions both under Article 19(1)(g) and Article 30 of the Constitution of India. 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-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:
(a) to admit students;
(b) to set up a reasonable fee structure;
(c) to constitute a governing body;
(d) to appoint staff (teaching and non-teaching); and
(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 appointment or nominating students for admissions would be unacceptable restrictions.
Although an 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 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 qualifications that may be prescribed. 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 the 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, 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 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 in nature, capitation fee and profiteering cannot be allowed to be indulged in:
(a) although the institutions may generate a reasonable revenue surplus for the purpose of development of education and expansion of the institutions.
(b) For admission in a professional institutions, merit must play an important role and meritorious candidates should 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 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 education colleges, by either the marks that the student obtains at the qualifying examination or school leaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by government agencies." Educational institutions, however, cannot grant admission on their whims and fancies and must follow some identifiable or reasonable methodology of admitting the students. 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 test, would be an unreasonable restriction under Article 19(6), though appropriate guidelines/modalities can be prescribed for holding the entrance test in a fair manner. Even when students are required to be selected on the basis of merit, the ultimate decision to grant admission to the students who have otherwise qualified for the grant of admission must be left with the educational institution concerned. However, when the institution rejects some students, such rejection must not be whimsical or for extraneous reasons.
The principles governing private unaided professional colleges were dealt with separately in paragraphs 67, 68 and 69; the relevant portions whereof read thus:
"It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forgo or discard the principle of merit. It would, therefore, be permissible for the university or the government, at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while, at the same time, giving the Management sufficient discretion in admitting students. This can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the Management out of those students who have passed the common entrance test held by itself or by the State/University and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counselling by the state agency. This will incidentally take care of poorer and backward sections of the society. The prescription of percentage for this purpose has to be done by the government according to the local needs and different percentages can be fixed for minority unaided and non-minority unaided and professional colleges. The same principles may be applied to other non-professional but unaided educational institutions viz., graduation and post graduation non-professional colleges or institutes.
In such professional unaided institutions, the Management will have the right to select teachers as per the qualifications and eligibility conditions laid down by the State/University subject to adoption of a rational procedure of selection. A rational fee structure should be adopted by the Management, which would not be entitled to charge a capitation fee. Appropriate machinery can be devised by the state or university to ensure that no capitation fee is charged and that there is no profiteering, though a reasonable surplus for the furtherance of education 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:
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 have also been framed p
