The Inamdar Judgement

FOR THE RECORD
The Inamdar Judgement

CASE NO.:Appeal (civil) 5041 of 2005
PETITIONER:P.A. Inamdar & Ors.
RESPONDENT:State of Maharashtra & Ors.
DATE OF JUDGMENT: 12/08/2005

BENCH:CJI R.C. LAHOTI Y.K. SABHARWAL D.M. DHARMADHIKARIARUN KUMAR,G.P. MATHUR,TARUN CHATTERJEE & P.K. BALASUBRAMANYAN

JUDGMENT:J U D G M E N TJUDGMENT GIVEN BYCJI R.C.LAHOTI,Y.K. SABHARWAL,D.M. DHARMADHIKARI,ARUN KUMAR,G.P. MATHUR,TARUN CHATTERJEE& P.K. BALASUBRAMANYAN

(Arising out of Special Leave Petition (C) No.9932 of 2004) WITH 

Civil Appeal No. 5042 of 2005 (@ SLP(C) No.9935/2004);Civil Appeal No. 5043 of 2005 (@ SLP(C) No. 9936/2004); W.P. (C) No. 276/2004;W.P. (C) No. 330/2004; W.P. (C) No. 357/2004; I.A. NOS. 26, 27, 30, 31 AND 33 INW.P. (C) No.350/1993; Civil Appeal No. 5035 of 2005 (@ SLP(C) No.11244/2004;W.P.(C) No. 302/204; W.P. (C) No. 347/2004; W.P. (C) No. 349/2004; W.P. (C) No.350/2004; W.P. (C) No. 387/2004; W.P. (C) No. 423/2004; W.P. (C) No. 480/2004;W.P. (C) No. 19/2005; W.P. (C) No. 261/2004; W.P. (C) No. 265/2004; W.P. (C) No.380/2004; W.P. (C) No. 358/2004; W.P. (C) No. 359/2004; W.P. (C) No. 360/2004;W.P. (C) No.361/2004; W.P. (C) No. 362/2004; W.P. (C) No. 363/2004; C.A. No.5257-5258/2004; C.A. No. 5259/2004; C.A. No. 5260-5261/2004; C.A. No.5262-5263/2004; C.A. No. 5996/2004; C.A. No. 5992/2004; C.A. No. 5997-5998/2004;C.A. No. 7969-7971/2004; C.A. No. 7972/2004; C.A. No. 7973/2004; C.A. No.7974/2004; C.A. No. 7975/2004; W.P. (C) No. 371/2004; W.P. (C) No. 368/2004;C.A. No. 7117-7119/2004; C.A. No. 7124-7126/2004; CONMT.PET. (CIVIL) No.561-563/2004 In C.A. No. 7117-7119/2004; CONMT. PET. (Civil) No. 564-566/2004 inC.A. No. 7124-7126/2004; W.P. (C) No. 251/2004; Civil Appeal No. 5036 of 2005 (@SLP (C) No. 17464/2004); Civil Appeal No. 5037 of 2005 (@ SLP (C) No.17549/2004); W.P. (C) No. 318/2004; Civil Appeal No. 5038 of 2005 (@ SLP(C) No.17930/2004; Civil Appeal No. 5039 of 2005 (@ SLP (C) No. 17931/2004); CivilAppeal No. 5040 of 2005 (@ SLP (C) No. 17326/2003); W.P. (C) No. 386/2004; W.P.(C) No. 397/2004

R.C. Lahoti, CJI

Preliminary

Leave granted in all SLPs.

A Coram of 11 Judges, not a common feature in theSupreme Court of India, sat to hear and decide T.M.A.Pai Foundation v. State ofKarnataka (2002) 8 SCC 481 (hereinafter 'Pai Foundation', for short). It wasexpected that the authoritative pronouncement by a Bench of such strength on theissues arising before it would draw a final curtain on those controversies. Thesubsequent events tell a different story. A learned academician observes thatthe 11-Judge Bench decision in Pai Foundation is a partial response to some ofthe challenges posed by the impact of Liberalisation, Privatisation andGlobalisation (LPG); but the question whether that is a satisfactory response,is indeed debatable. It was further pointed out that 'the decision raises morequestions than it has answered' (see : Annual Survey of Indian Law, 2002 atp.251, 254). The Survey goes on to observe "the principles laid down by themajority in Pai Foundation are so broadly formulated that they providesufficient leeway to subsequent courts in applying those principles while thelack of clarity in the judgment allows judicial creativity " (ibid atp.256).

The prophecy has come true and while the ink on theopinions in Pai Foundation was yet to dry, the High Courts were flooded withwrit petitions, calling for settlements of several issues which were not yetresolved or which propped on floor, post Pai Foundation. A number of SpecialLeave Petitions against interim orders passed by High Courts and a few writpetitions came to be filed directly in this Court. A Constitution Bench sat tointerpret the 11-Judge Bench decision in Pai Foundation which it did vide itsjudgment dated 14.8.2003 (reported as - Islamic Academy of Education & Anr.v. State of Karnataka & Ors., (2003) 6 SCC 697; "Islamic Academy"for short). The 11 learned Judges constituting the Bench in Pai Foundationdelivered five opinions. The majority opinion on behalf of 6 Judges wasdelivered by B.N. Kirpal, CJ. Khare, J (as His Lordship then was) delivered aseparate but concurring opinion, supporting the majority. Quadri, J, Ruma Pal, Jand Variava, J (for himself and Bhan, J) delivered three separate opinionspartly dissenting from the majority. Islamic Academy too handed over twoopinions. The majority opinion for 4 learned Judges has been delivered by V.N.Khare, CJ. S.B. Sinha, J, has delivered a separate opinion. The events followingIslamic Academy judgment show that some of the main questions have remainedunsettled even after the exercise undertaken by the Constitution Bench inIslamic Academy in clarification of the 11-Judge Bench decision in PaiFoundation. A few of those unsettled questions as also some aspects ofclarification are before us calling for settlement by this Bench of 7 Judgeswhich we hopefully propose to do.

Pai Foundation and Islamic Academy have set out thefactual backdrop of the issues leading to the formulation of 11-Judge and5-Judge Benches respectively. For details thereof a reference may be made to thereported decisions. A brief summary of the past events, highlighting the issuesas they have travelled in search of resolution would be apposite. IIBACKDROP

Education used to be charity or philanthropy in good oldtimes. Gradually it became an 'occupation'. Some of the Judicial dicta go on tohold it as an 'industry'. Whether, to receive education, is a fundamental rightor not has been debated for quite some time. But it is settled that establishingand administering of an educational institution for imparting knowledge to thestudents is an occupation, protected by Article 19(1)(g) and additionally byArticle 26(a), if there is no element of profit generation. As of now, impartingeducation has come to be a means of livelihood for some professionals and amission in life for some altruists.

Education has since long been a matter of litigation.Law reports are replete with rulings touching and centering around education inits several aspects. Until Pai Foundation, there were four oft quoted leadingcases holding the field of education. They were Unni Krishnan v. State of AndhraPradesh (1993) 1 SCC 645, St. Stephen's College v. University of Delhi (1992)1SCC 558, Ahmedabad St. Xavier's College Society v. State of Gujarat (1974)1 SCC717 and In Re: Kerala Education Bill, 1957, (1958) SCR 995. For conveniencesake, these cases will be referred to as Unni Krishnan, St. Stephen's, St.Xavier's and Kerala Education Bill respectively. All these cases amongst otherscame up for the consideration of this Court in Pai Foundation.

Correctness of the decision in St. Stephen's was doubtedduring the course of hearing of Writ Petition No. 350 of 1993 filed by IslamicAcademy. As St. Stephen's is a pronouncement of 5-Judge Bench, the matter wasdirected to be placed before 7-Judge Bench.

An event of constitutional significance which hadalready happened, was taken note of by the Constitution Bench."Education" was a State Subject in view of the following Entry 11placed in List II :

State List:-

"11. Education including universities, subject tothe provisions of entries 63, 64, 65 and 66 of List I and entry 25 of ListIII."

By the Constitution (42nd Amendment) Act 1976, theabovesaid Entry was directed to be deleted and instead Entry 25 in List III Concurrent List, was directed to be suitably amended so as to read asunder:-

"25. Education, including technical education,medical education and universities, subject to the provisions of entries 63, 64,65 and 66 of List I; vocational and technical training of labour."

The 7-Judge Bench felt that the matter called forhearing by a 11-Judge Bench. The 11-Judge Bench felt that it was not bound bythe ratio propounded in Kerala Education Bill and St. Xavier's and was free tohear the case in wider perspective so as to discern the true scope andinterpretation of Article 30(1) of the Constitution and make an authoritativepronouncement.

Eleven Questions and Five Heads of Issues in PaiFoundation

In Pai Foundation, 11 questions were framed for beinganswered. Detailed submissions were made centering around the 11 questions. TheCourt dealt with the questions by classifying the discussion under the followingfive heads:

1.Is there a fundamental right to set up educationalinstitutions and if so, under which provision? 2.Does Unni Krishnan requirereconsideration? 3.In case of private institutions, can there be governmentregulations and, if so, to what extent? 4.In order to determine the existence ofa religious or linguistic minority in relation to Article 30, what is to be theunit -- the State or the country as a whole? 5.To what extent can the rights ofaided private minority institutions to administer be regulated?

Having dealt with each of the abovesaid heads, the Courtthrough the majority opinion expressed by B.N. Kirpal, CJ, recorded answers tothe 11 questions as they were framed and posed for resolution. The questions andthe answers as given by the majority are set out hereunder:

"Q.1. What is the meaning and content of theexpression "minorities" in Article 30 of the Constitution of India?

A. Linguistic and religious minorities are covered bythe expression "minority" under Article 30 of the Constitution. Sincereorganization of the States in India has been on linguistic lines, therefore,for the purpose of determining the minority, the unit will be the State and notthe whole of India. Thus, religious and linguistic minorities, who have been puton a par in Article 30, have to be considered Statewise.

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

A. This question need not be answered by this Bench; itwill be dealt with by a regular Bench.

Q.3 (a) What are the indicia for treating an educationalinstitution as a minority educational institution? Would an institution beregarded as a minority educational institution because it was established by aperson(s) belonging to a religious or linguistic minority or its beingadministered by a person(s) belonging to a religious or linguistic minority?

A. This question need not be answered by this Bench; itwill be dealt with by a regular Bench.

Q.3(b) To what extent can professional education betreated as a matter coming under minorities' rights under Article 30?

A. Article 30(1) gives religious and linguisticminorities the right to establish and administer educational institutions oftheir choice. The use of the words "of their choice" indicates thateven professional educational institutions would be covered by Article 30.

Q.4. Whether the admission of students to minorityeducational institution, whether aided or unaided, can be regulated by the StateGovernment or by the university to which the institution is affiliated?

A. Admission of students to unaided minority educationalinstitutions viz. schools and undergraduate colleges where the scope formerit-based selection is practically nil, cannot be regulated by the State oruniversity concerned, except for providing the qualifications and minimumconditions of eligibility in the interest of academic standards.[emphasis by us]

The right to admit students being an essential facet ofthe right to administer educational institutions of their choice, ascontemplated under Article 30 of the Constitution, the State Government or theuniversity may not be entitled to interfere with that right, so long as theadmission to the unaided educational institutions is on a transparent basis andthe merit is adequately taken care of. The right to administer, not beingabsolute, there could be regulatory measures for ensuring educational standardsand maintaining excellence thereof, and it is more so in the matter ofadmissions to professional institutions. [emphasis by us]

A minority institution does not cease to be so, themoment grant-in-aid is received by the institution. An aided minorityeducational institution, therefore, would be entitled to have the right ofadmission 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 thatthe rights under Article 30(1) are not substantially impaired and further thecitizens' rights under Article 29(2) are not infringed. What would be areasonable extent, would vary from the types of institution, the courses ofeducation for which admission is being sought and other factors like educationalneeds. The State Government concerned has to notify the percentage of thenon-minority students to be admitted in the light of the above observations.Observance of inter se merit amongst the applicants belonging to the minoritygroup could be ensured. In the case of aided professional institutions, it canalso be stipulated that passing of the common entrance test held by the Stateagency is necessary to seek admission. As regards non-minority students who areeligible to seek admission for the remaining seats, admission should normally beon the basis of the common entrance test held by the State agency followed bycounselling wherever it exists.

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

A. A minority institution may have its own procedure andmethod of admission as well as selection of students, but such a procedure mustbe fair and transparent, and the selection of students in professional andhigher education colleges should be on the basis of merit. The procedure adoptedor selection made should not be tantamount to mal-administration. Even anunaided minority institution ought not to ignore the merit of the students foradmission, while exercising its right to admit students to the collegesaforesaid, as in that event, the institution will fail to achieve excellence.

Q.5(b) Whether the minority institutions' right ofadmission 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?

A. While giving aid to professional institutions, itwould be permissible for the authority giving aid to prescribe bye __ rules orregulations, the conditions on the basis of which admission will be granted todifferent aided colleges by virtue of merit, coupled with the reservation policyof the State qua non-minority students. The merit may be determined eitherthrough a common entrance test conducted by the university or the Governmentconcerned followed by counselling, or on the basis of an entrance test conductedby the individual institutions  the method to be followed is for theuniversity or the Government to decide. The authority may also devise othermeans to ensure that admission is granted to an aided professional institutionon the basis of merit. In the case of such institutions, it will be permissiblefor the Government or the university to provide that consideration should beshown to the weaker sections of the society.

Q.5(c) Whether the statutory provisions which regulatethe facets of administration like control over educational agencies, controlover governing bodies, conditions of affiliation includingrecognition/withdrawal thereof, and appointment of staff, employees, teachersand principals including their service conditions and regulation of fees, etc.would interfere with the right of administration of minorities?

A. So far as the statutory provisions regulating thefacets of administration are concerned, in case of an unaided minorityeducational institution, the regulatory measure of control should be minimal andthe conditions of recognition as well as the conditions of affiliation to auniversity or board have to be complied with, but in the matter of day-to-daymanagement, like the appointment of staff, teaching and non-teaching, andadministrative control over them, the management should have the freedom andthere should not be any external controlling agency. However, a rationalprocedure for the selection of teaching staff and for taking disciplinary actionhas to be evolved by the management itself. For redressing the grievances ofemployees of aided and unaided institutions who are subjected to punishment ortermination from service, a mechanism will have to be evolved, and in ouropinion, appropriate tribunals could be constituted, and till then, suchtribunals could be presided over by a judicial officer of the rank of DistrictJudge.

The State or other controlling authorities, however, canalways prescribe the minimum qualification, experience and other conditionsbearing on the merit of an individual for being appointed as a teacher or aprincipal of any educational institution.

Regulations can be framed governing service conditionsfor teaching and other staff for whom aid is provided by the State, withoutinterfering with the overall administrative control of the management over thestaff.

Fees to be charged by unaided institutions cannot beregulated but no institution should charge capitation fee.

Q.6(a) Where can a minority institution be operationallylocated? Where a religious or linguistic minority in State A establishes aneducational institution in the said State, can such educational institutiongrant preferential admission/reservations and other benefits to members of thereligious/linguistic group from other States where they are non-minorities?

A. This question need not be answered by this Bench; itwill be dealt with by a regular Bench.

Q. 6. (b) Whether it would be correct to say that onlythe members of that minority residing in State A will be treated as the membersof the minority vis-`-vis such institution?

A. This question need not be answered by this Bench; itwill be dealt with by a regular Bench.

Q.7. Whether the member of a linguistic non-minority inone State can establish a trust/society in another State and claim minoritystatus in that State?

A. This question need not be answered by this Bench; itwill be dealt with by a regular Bench.

Q.8. Whether the ratio laid down by this Court in St.Stephen's case (St. Stephen's College v. University of Delhi, (1992) 1 SCC 558)is correct? If no, what order?

A. The basic ratio laid down by this Court in St.Stephen's College case (supra) is correct, as indicated in this judgment.However, rigid percentage cannot be stipulated. It has to be left to authoritiesto prescribe a reasonable percentage having regard to the type of institution,population and educational needs of minorities.

Q. 9. Whether the decision of this Court in UnniKrishnan, J.P. v. State of A.P., (1993) 1 SCC 645 (except where it holds thatprimary education is a fundamental right) and the scheme framed thereunderrequire reconsideration/modification and if yes, what?

A. The scheme framed by this Court in Unni Krishnan case(supra) and the direction to impose the same, except where it holds that primaryeducation is a fundamental right, is unconstitutional. However, the principlethat there should not be capitation fee or profiteering is correct. Reasonablesurplus to meet cost of expansion and augmentation of facilities does not,however, amount to profiteering.

Q. 10. Whether the non-minorities have the right toestablish 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 asminority institutions? and

Q. 11. What is the meaning of the expressions"education" and "educational institutions" in variousprovisions of the Constitution? Is the right to establish and administereducational institutions guaranteed under the Constitution?

A. The expression "education" in the articlesof the Constitution means and includes education at all levels from the primaryschool level up to the postgraduate level. It includes professional education.The expression "educational institutions" means institutions thatimpart education, where "education" is as understood hereinabove.

The right to establish and administer educationalinstitutions is guaranteed under the Constitution to all citizens under Articles19(1)(g) and 26, and to minorities specifically under Article 30.

All citizens have a right to establish and administereducational institutions under Articles 19(1)(g) and 26, but this right issubject to the provisions of Articles 19(6) and 26(a). However, minorityinstitutions will have a right to admit students belonging to the minoritygroup, in the manner as discussed in this judgment."

The majority led by Kirpal, CJ, in Pai Foundation didsay that the expression "minorities" in Article 30 of the Constitutionof India, whether linguistic or religious, has to be determined by treating theState and not the whole of India as unit. Questions such as: (i) what isreligion, (ii) what is the indicia for determining if an educational institutionis a minority institution, (iii) whether a minority institution can operateextra-territorially extending its activities into such states where the minorityestablishing and administering the institution does not enjoy minority status,(iv) the content and contour of minority by reference to territories, were notanswered in Pai Foundation and were left to be determined by the regular Benchesin individual cases to be heard after the decision in Pai Foundation. We also donot propose to involve ourselves by dealing with these questions except to theextent it may become necessary to do so for the purpose of answering thequestions posed before us.

Pai Foundation explained in Islamic AcademyPaiFoundation Judgment was delivered on 31.10.2002. The Union of India, variousState Governments and the Educational Institutions, each understood the majorityjudgment in its own way. The State Governments embarked upon enacting laws andframing the regulations, governing the educational institutions in consonancewith their own understanding of Pai Foundation. This led to litigation inseveral Courts. Interim orders passed therein by High Courts came to bechallenged before this Court. At the hearing, again the parties through theirlearned counsel tried to interpret the majority decision in Pai Foundation indifferent ways as it suited them. The parties agreed that there were certainanomalies and doubts, calling for clarification. The persons seeking suchclarifications were unaided professional educational institutions, both minorityand non-minority. The Court formulated four questions as arising forconsideration in view of the rival submissions made before the Court in IslamicAcademy:

"(1) whether the educational institutions areentitled to fix their own fee structure; (2) whether minority and non-minorityeducational institutions stand on the same footing and have the same rights; (3)whether private unaided professional colleges are entitled to fill in theirseats, to the extent of 100% , and if not, to what extent; and (4) whetherprivate unaided professional colleges are entitled to admit students by evolvingtheir own method of admission."

We could attempt at formulating the gist of the answersgiven by the Constitution Bench of the Court as under:

(1)Each minority institution is entitled to have its ownfee structure subject to the condition that there can be no profiteering andcapitation fees cannot be charged. A provision for reasonable surplus can bemade to enable future expansion. The relevant factors which would go intodetermining the reasonability of a fee structure, in the opinion of majority,are: (i) the infrastructure and facilities available, (ii) the investments made,(iii) salaries paid to the teachers and staff, (iv) future plans for expansionand betterment of the institution etc.

S.B. Sinha, J, defined what is 'capitation' and'profiteering' and also said that reasonable surplus should ordinarily vary from6 per cent to 15 per cent for utilization in expansion of the system anddevelopment of education.

(2) In the opinion of the majority, minorityinstitutions stand on a better footing than non-minority institutions. Minorityeducational institutions have a guarantee or assurance to establish andadminister educational institutions of their choice. State Legislation, primaryor delegated, cannot favour non-minority institution over minority institution.The difference arises because of Article 30, the protection whereunder isavailable to minority educational institutions only. The majority opinion calledit a "special right" given under Article 30.

In the opinion of S.B. Sinha, J, minority educationalinstitutions do not have a higher right in terms of Article 30(1); the rights ofminorities and non-minorities are equal. What is conferred by Article 30(1) ofthe Constitution is "certain additional protection" with the object ofbringing the minorities on the same platform as that of non-minorities, so thatthe minorities are protected by establishing and administering educationalinstitutions for the benefit of their own community, whether based on religionor language.

It is clear that as between minority and non-minorityeducational institutions, the distinction made by Article 30(1) in thefundamental rights conferred by Article 19(1)(g) has been termed by the majorityas "special right" while in the opinion of S.B.Sinha, J, it is not aright but an "additional protection". What difference it makes, weshall see a little later.

(3)&(4).Questions 3 and 4 have been taken up forconsideration together. A reading of the opinion recorded in Islamic Academyshows that paras 58, 59 and 68 of Pai Foundation were considered and sought tobe explained. It was not very clear as to what types of institutions were beingdealt with in the above referred to paragraphs by the majority in PaiFoundation. Certainly, distinction was being sought to be drawn betweenprofessional colleges and other educational institutions (both minority andunaided). Reference is also found to have been made to minority and non-minorityinstitutions. At some places, observations have been made regarding institutionsdivided into groups only by reference to aid, that is whether they are aided orunaided educational institutions without regard to the fact whether they wereminority or non-minority institutions. It appears that there are a fewpassages/sentences wherein it is not clear which type of institutions themajority opinion in Pai Foundation was referring to thereat. However, themajority opinion in Islamic Academy has by explaining Pai Foundation held asunder:

(1)In professional institutions, as they are unaided,there will be full autonomy in their administration, but the principle of meritcannot be sacrificed, as excellence in profession is in national interest.

(2)Without interfering with the autonomy of unaidedinstitutions, the object of merit based admissions can be secured by insistingon it as a condition to the grant of recognition and subject to the recognitionof merit, the management can be given certain discretion in admitting students.(3)The management can have quota for admitting students at its discretion butsubject to satisfying the test of merit based admissions, which can be achievedby allowing management to pick up students of their own choice from out of thosewho have passed the common entrance test conducted by a centralized mechanism.Such common entrance test can be conducted by the State or by an association ofsimilarly placed institutions in the State.

(4) The State can provide for reservation in favour offinancially or socially backward sections of the society.

(5) The prescription for percentage of seats, that isallotment of different quotas such as management seats, State's quota,appropriated by the State for allotment to reserved categories etc., has to bedone by the State in accordance with the "local needs" and theinterests/needs of that minority community in the State, both deservingparamount consideration. The exact concept of "local needs" is notclarified. The plea that each minority unaided educational institution can holdits own admission test was expressly overruled. The principal considerationwhich prevailed with the majority in Islamic Academy for holding in favour ofcommon entrance test was to avoid great hardship and incurring of huge cost bythe hapless students in appearing for individual tests of various colleges.

The majority opinion carved out an exception in favourof those minority educational professional institutions which were establishedand were having their own admission procedure for at least 25 years from therequirement of joining any common entrance test, and such institutions werepermitted to have their own admission procedure. The State Governments weredirected to appoint a permanent Committee to ensure that the tests conducted bythe association of colleges is fair and transparent.

S.B. Sinha, J, in his separate opinion, agreed with themajority that the merit and merit alone should be the basis of selection for thecandidates. He also agreed that one single standard for all the institutions wasnecessary to achieve the object of selection being made on merit by maintaininguniformity of standard, which could not be left to any individual institution inthe matter of professional courses of study. However, the merit criterion in theopinion of Sinha, J, was required to be associated with the level of education.To quote his words: "the merit criterion would have to be judged like apyramid. At the kindergarten, primary, secondary levels, minorities may have100% quota. At this level the merit may not have much relevance at all but atthe level of higher education and in particular, professional education andpostgraduate-level education, merit indisputably should be a relevant criterion.At the postgraduation level, where there may be a few seats, the minorityinstitutions may not have much say in the matter. Services of doctors, engineersand other professionals coming out from the institutions of professionalexcellence must be made available to the entire country and not to anyparticular class or group of people. All citizens including the minorities havealso a fundamental duty in this behalf."

Before we part with the task of summing up the answersgiven to the four questions in Islamic Academy, we would like to make a fewobservations of ours in this regard. First, the majority opinion spread over 30printed pages, and the minority opinion spread over 60 printed pages, boththough illuminating and instructive, have nonetheless not summed up or pointedlyanswered the questions. We have endeavoured to cull out and summarize theanswers, noted above, as best and as briefly as we could from the two opinions.We would, therefore, hasten to add that in order to fully appreciate the ratioof the two opinions, they have to be read in detail and our attempt at findingout and placing in a few chosen words the ratio decidendi of the two separatelyrecorded opinions, is subject to this limitation. However, we shall make areference to relevant passages from the two opinions as and when it becomesnecessary. A point of significance which we would like to briefly note hereitself, a detailed discussion being relegated to a later part of this judgment,is that the opinion of S.B. Sinha, J, has examined in detail, the scope ofprotection conferred on minority institutions by reference to their right toseek recognition or affiliation, an aspect of wider significance which does notseem to have received consideration with that emphasis either in Pai Foundationor in the majority opinion in Islamic Academy. We shall revert to this aspect alittle later. IIIIssues herein

A Few Preliminary observationsBefore we embark upondealing with the issues posed before us for resolution, we would like to make afew preliminary observations as a preface to our judgment inasmuch as that wouldoutline the scope of the controversy with which we are actually dealing here. Atthe very outset, we may state that our task is not to pronounce our ownindependent opinion on the several issues which arose for consideration in PaiFoundation. Even if we are inclined to disagree with any of the findingsamounting to declaration of law by the majority in Pai Foundation, we cannot;that being a pronouncement by 11-Judge Bench, we are bound by it. We cannotexpress a dissent or disagreement howsoever we may be inclined to do so on anyof the issues. The real task before us is to cull out the ratio decidendi of PaiFoundation and to examine if the explanation or clarification given in IslamicAcademy runs counter to Pai Foundation and if so, to what extent. If we findanything said or held in Islamic Academy in conflict with Pai Foundation, weshall say so as being a departure from the law laid down by Pai Foundation andon the principle of binding efficacy of precedents, over-rule to that extent theopinion of the Constitution Bench in Islamic Academy.

It is pertinent to note, vide paras 2, 3 and 35 ofIslamic Academy, that most of the petitioners/applicants therein were unaidedprofessional educational institutions (both minority and non-minority). Thepurpose of constituting the Constitution Bench, as noted at the end of para 1,was "so that doubts/anomalies, if any, could be clarified." Havinganswered the questions, the Constitution Bench treated all interlocutoryapplications as regards interim matters as disposed of (see para 23). All themain matters (writ petitions, transfer petitions and special leave petitions)were directed to be placed before the regular Benches for disposal on merits.

Islamic Academy in addition to giving clarifications onInterlocutory Applications, directed setting up of two committees in each State:one committee "to give effect to the judgment in Pai Foundation" andto approve the fee structure or to propose some other fee which can be chargedby minority institutions (vide para 7), and the other committee -- to overseethe tests to be conducted by the association of institutions (vide para 19).

Since the direction made in Islamic Academy forappointment of the Committees has been vehemently assailed during the course ofhearing before us, we would extract from the judgment in Islamic Academy thefollowing two passages wherein, in the words of Khare, CJ, the purpose and theconstitution of the Committees, the powers conferred on and the functionsenjoined upon them are given: "..we direct that in order to giveeffect to the judgment in T.M.A. Pai case the respective StateGovernments/concerned authority shall set up, in each State, a committee headedby a retired High Court Judge who shall be nominated by the Chief Justice ofthat State. The other member, who shall be nominated by the Judge, should be aChartered Accountant of repute. A representative of the Medical Council of India(in short "MCI") or the All India Council for Technical Education (inshort "AICTE"), depending on the type of institution, shall also be amember. The Secretary of the State Government in charge of Medical Education orTechnical Education, as the case may be, shall be a member and Secretary of theCommittee. The Committee should be free to nominate/co-opt another independentperson of repute, so that the total number of members of the Committee shall notexceed five. Each educational institute must place before this Committee, wellin advance of the academic year, its proposed fee structure. Along with theproposed fee structure all relevant documents and books of accounts must also beproduced before the Committee for their scrutiny. The Committee shall thendecide whether the fees proposed by that institute are justified and are notprofiteering or charging capitation fee. The Committee will be at liberty toapprove the fee structure or to propose some other fee which can be charged bythe institute. The fee fixed by the Committee shall be binding for a period ofthree years, at the end of which period the institute would be at liberty toapply for revision. Once fees are fixed by the Committee, the institute cannotcharge either directly or indirectly any other amount over and above the amountfixed as fees. If any other amount is charged, under any other head or guisee.g. donations, the same would amount to charging of capitation fee. TheGovernments/appropriate authorities should consider framing appropriateregulations, if not already framed, whereunder if it is found that aninstitution is charging capitation fees or profiteering that institution can beappropriately penalised and also face the prospect of losing itsrecognition/affiliation. (para 7) We now direct that the respective StateGovernments do appoint a permanent Committee which will ensure that the testsconducted by the association of colleges is fair and transparent. For each Statea separate Committee shall be formed. The Committee would be headed by a retiredJudge of the High Court. The Judge is to be nominated by the Chief Justice ofthat State. The other member, to be nominated by the Judge, would be a doctor oran engineer of eminence (depending on whether the institution is medical orengineering/technical). The Secretary of the State in charge of Medical orTechnical Education, as the case may be, shall also be a member and act as theSecretary of the Committee. The Committee will be free to nominate/co-opt anindependent person of repute in the field of education as well as one of theVice-Chancellors of the University in that State so that the total number ofpersons on the Committee do not exceed five. The Committee shall have powers tooversee the tests to be conducted by the association. This would include thepower to call for the proposed question paper(s), to know the names of thepaper-setters and examiners and to check the method adopted to ensure papers arenot leaked. The Committee shall supervise and ensure that the test is conductedin a fair and transparent manner. The Committee shall have the powers to permitan institution, which has been established and which has been permitted to adoptits own admission procedure for the last, at least, 25 years, to adopt its ownadmission procedure and if the Committee feels that the needs of such aninstitute are genuine, to admit, students of their community, in excess of thequota allotted to them by the State Government. Before exempting any instituteor varying in percentage of quota fixed by the State, the State Government mustbe heard before the Committee. It is clarified that different percentage ofquota for students to be admitted by the management in each minority ornon-minority unaided professional college(s) shall be separately fixed on thebasis of their need by the respective State Governments and in case of anydispute as regards fixation of percentage of quota, it will be open to themanagement to approach the Committee. It is also clarified that no institute,which has not been established and which has not followed its own admissionprocedure for the last, at least, 25 years, shall be permitted to apply for orbe granted exemption from admitting students in the manner set out hereinabove.(para 19)"

Sinha, J. has not specifically spoken of the Committees.Nevertheless he made a reference to these Committees in his opinion and thusimpliedly recorded his concurrence with the constitution of theseCommittees.Vide para 20, the Constitution Bench has made it clear that thesetting up of two sets of Committees in the States has been directed in exerciseof the power conferred on this Court by Article 142 of the Constitution and suchCommittees "shall remain in force till appropriate legislation is enactedby Parliament". Although the term 'permanent' has been used, but it appearsto us that these Committees are intended to be transitory in nature.

Reference for constituting a Bench of a coram higherthan Constitution Bench

These matters have been directed to be placed forhearing before a Bench of seven Judges under Orders of the Chief Justice ofIndia pursuant to Order dated July 15, 2004 in P.A. Inamdar and Ors. v. State ofMaharashtra and Ors., (2004) 8 SCC 139 and Order dated July 29, 2004 inPushpagiri Medical Society v. State of Kerala and Ors., (2004) 8 SCC 135. Theaggrieved persons before us are again classifiable in one class, that is,unaided minority and non-minority institutions imparting professional education.The issues arising for decision before us are only three: (i) the fixation of'quota' of admissions/students in respect of unaided professional institutions;

(ii) the holding of examinations for admissions to suchcolleges, that is, who will hold the entrance tests; and

(iii) the fee structure.

The questions spelled out by Orders of Reference In thelight of the two orders of reference, referred to hereinabove, we propose toconfine our discussion to the questions set out hereunder which, according tous, arise for decision:-

(1)To what extent the State can regulate the admissionsmade by unaided (minority or non-minority) educational institutions? Can theState enforce its policy of reservation and/or appropriate to itself any quotain admissions to such institutions?

(2)Whether unaided (minority and non-minority)educational institutions are free to devise their own admission procedure orwhether direction made in Islamic Academy for compulsorily holding entrance testby the State or association of institutions and to choose therefrom the studentsentitled to admission in such institutions, can be sustained in light of the lawlaid down in Pai Foundation?

(3)Whether Islamic Academy could have issued guidelinesin the matter of regulating the fee payable by the students to the educationalinstitutions?

(4)Can the admission procedure and fee structure beregulated or taken over by the Committees ordered to be constituted by IslamicAcademy? The issues posed before us are referable to headings 3 and 5 out of'five headings' formulated by Kirpal, CJ in Pai Foundation. So also speaking byreference to the 11 questions framed in Pai Foundation, the questions andanswers relevant for us would be referable to question Nos. 3 (b), 4, 5 (a) (b)(c) and (9). IV Submissions made

A number of learned counsel addressed the Court at thetime of hearing raising very many issues and canvassing different view-points oflaw referable to those issues. We propose to place on record, as briefly as wecan, the principal submissions made confined to the issues arising for decisionbefore us.

The arguments on behalf of the petitioners were led bysenior counsel Shri Harish Salve. Extensively reading various relevantparagraphs and observations in different opinions in Pai Foundation, learnedcounsel contends that the directions for setting up permanent committees forregulating admissions and fixing fee structure in unaided minority andnon-minority institutions issued in the case of Islamic Academy are contrary tothe ratio of judgment in Pai Foundation. According to learned counsel, thedirections clearly run counter to all earlier Constitution Bench decisions ofthis Court in St. Stephen's, St. Xavier's and Kerala Education Bill.

It is argued that in the judgment of the eleven judgesin Pai Foundation which deals with several diverse issues of considerablecomplexity, every observation has to be understood in its context. Paragraph 68in Pai Foundation has wrongly been read as the ratio of the judgement by theBench of five judges in the case of Islamic Academy. It is submitted thatparagraph 68 in the majority opinion in Pai Foundation has to be read andunderstood in the context of the constitutional interpretation placed onArticles 29 & 30 of the Constitution. Reading thus, the directions forsetting up permanent committees, for fixing quota and fee structure seriouslyimpinge on the constitutional guarantee of autonomy to minority institutionsunder Article 30 and to unaided non-minority institutions under Article19(1)(g). It is submitted that taking over the right to regulate admission andfee structure of unaided professional institutions is not a 'reasonablerestriction' within the meaning of Article 19(6) of the Constitution. Suchrestriction is virtual negation of the constitutional protection of autonomy tominorities in running educational institutions 'of their choice' as provided inArticle 30 of the Constitution.

Elaborating his legal propositions, learned seniorcounsel Shri Salve argued that establishing and running an educationalinstitution is a guaranteed fundamental right of 'occupation' under Article19(1)(g) of the Constitution. Article 19(6) permits State to make regulationsand place reasonable restrictions in public interest upon the rights enjoyed bycitizens under Article 19(1)(g) of the Constitution. Any imposition of a systemof selection of students for admission would be unreasonable if it deprives theprivate unaided institutions of the right of rational selection which it hasdevised for itself. Subject to the minimum qualifications that may be prescribedand to some system of computing the equivalence between different kinds ofqualifications like a common entrance test, it can evolve a system of selectioninvolving both written and oral tests based on principle of fairness. Referenceis made to paragraph 40 of the judgment in Pai Foundation.

It is submitted that the State can prescribe minimumqualifications and may prescribe systems of computing equivalence inascertaining merit; however, the right of rational selection, which wouldnecessarily involve the right to decide upon the method by which a particularinstitution computes such equivalence, is protected by Article 19 andinfringement of this right constitutes an unreasonable encroachment upon theconstitutionally guaranteed autonomy of such institutions.

It is further argued that where States take over theright of the institution to grant admission and/or to fix the fees, itconstitutes nationalization of educational institutions. Such nationalization ofeducation is an unreasonable restriction on the right conferred under Article19. Reliance is placed on paragraph 38 of the judgment in Pai Foundation.

Learned counsel further argues that schemes framedrelating to grant of admission and fixing of fees in Unni Krishnan has been heldto be unconstitutional by the 11-Judge Bench in Pai Foundation. [Reference ismade to paragraph 45 of the judgment in Pai Foundation] It is submitted that thedirections to set up committees for regulation of admission and fee structure inIslamic Academy virtually do the same exercise as was done in Unni Krishnan anddisapproved in the larger Bench decision in Pai Foundation. The submission insubstance made is that Unni Krishnan was disapproved in Pai Foundation and haswrongly been re-introduced in Islamic Academy.

It is argued that State necessity cannot be a ground tocurtail the right of a citizen conferred under Article 19(1)(g) of theConstitution. The Constitution casts a duty upon the States to provideeducational facilities. The State is obliged to carry out this duty from revenueraised by the State. The shortfall in the efforts of the State is met by theprivate enterprise, that however, does not entitle the State to nationalize,whether in the whole or in part, such private enterprise. This, it is submitted,is the true ratio of the Pai Foundation in so far as Article 19 of theConstitution is concerned.

It is next argued that as held in St. Xavier's andre-affirmed in Pai Foundation the right to establish and administer educationalinstitutions by minorities under Article 30 of the Constitution is not anabsolute right meaning thereby that it is subject to such regulations thatsatisfy a dual test that is : the test of 'reasonableness' and 'any regulationregulating the educational character of the institutions so that it is conduciveto making the institution an effective vehicle of education for the minoritycommunity and for the others who resort to it'. Any regulation which impingesupon the minority character of the institutions is constitutionallyimpermissible. It is submitted that between the right of minorities to establishand administer the educational institutions and the right of the State toregulate educational activities for maintaining standard of education, a balancehas to be struck. The regulation in relation to recognition/affiliation operatesin the area of standard of excellence and are unquestionable if they do notseriously curtail or destroy the right of minorities to administer theireducational institutions. Only in maintaining standards of education, State caninsist by framing regulations that they be followed but in all other areas therights of minority must be protected. It is conceded that mal-administration isnot protected by Article 30 of the Constitution. Similarly, secular laws withsecular object that do not directly impinge upon the right of minorityinstitutions and operate generally upon all citizens do not impinge upon Article30 of the Constitution. This has been the constitutional interpretation ofArticle 30 not because Article 30 admits no exception like Article 19(6) butbecause the right conferred under Article 30 does not extend to these areas. Thelaws that serve national interest do not impinge upon Article 30.

Learned counsel in elaborating his argument tried tomake a distinction between the rights of aided institutions and unaidedinstitutions. Article 29(2) places a limitation on the right of an aidedinstitution by providing that if State aid is obtained, 'no citizen shall bedenied admission on grounds only of religion, race, caste, language or any ofthem'. It is submitted that as a necessary corollary, no such limitation can beplaced while regulating admission in an unaided minority institution which mayprefer to admit students of minority community. So far as unaided minorityeducational institutions are concerned, the submission made is that governmenthas no right or power, much less duty, to decide as to which method of selectionof students is to be adopted by minority institutions. The role of thegovernment is confined to ensuring that there is no mal-administration in thename of selection of students or in the fixation of fees. No doubt, the State isunder a duty to prevent mal-administration, that is to control charging ofcapitation fees for the seats regardless of merit and commercializing educationresulting in exploitation of students, but to prevent mal-administration of theabove nature or on the ground that there is likelihood of suchmal-administration, the State cannot take over the administration of theinstitutions themselves into its own hands. The likelihood of an abuse of aconstitutional right cannot ever furnish justification for a denial of thatright. An apprehension that a citizen may abuse his liberty does not providejustification for imposing restraints on the liberty of citizens. Similarly, theapprehension that the minorities may abuse their educational rights underArticle 30 of the Constitution cannot constitute a valid basis for the State totake over those rights.

Learned senior counsel Shri Ashok Desai appearing onbehalf of unaided Karnataka Private Medical Colleges (through its Association)of both categories of minority and non-minority has questioned the correctnessof the directions in the case of Islamic Academy for setting up permanentcommittees for fixation of quota and determination of fees. According to him, asheld in Pai Foundation, in the name of controlling capitation, there cannot beindirect nationalization and complete State control of unaided professionalinstitutes. In the case of Islamic Academy, the ratio of Pai Foundation thatautonomy of unaided non-minority institutions is an important facet of theirright under Article 19(1)(g) and in case of minority under Article 19(1)(g) readwith Article 30 of the Constitution has been ignored. On behalf of unaidedprivate professional colleges, learned counsel further submitted that there aremany private educational institutes which have been set up by people belongingto a region or a community or a class in order to promote their own groups. Aslong as these groups form an unaided minority institution, they are entitled tohave transparent criteria to admit students belonging to their group. Forinstance, scheduled castes and scheduled tribes have started Ambedkar MedicalCollege; Lingayaths have started KLE Medical College in Belgaun and peoplebelonging to Vokalliga community have started Kempegowda Medical College.Similarly, Edava community in Kerala has started its own colleges. Sugarcooperatives in Maharashtra have started their own colleges. Learned counselalso highlighted an instance of a college opened in Tamil Nadu by StateTransport Workers for the education of their children on the engineering side.He submitted that if the State is allowed to interfere in the admissionprocedure in these private institutions set up with the object of providingeducational facilities to their own group, community or poorer sections, thevery purpose and object of setting up a private medical college by a group orcommunity for their own people would be defeated.

According to learned counsel, the State control inunaided private professional colleges can only be to the extent of monitoring oroverseeing its working so that they do not indulge in profiteering by chargingcapitation fees and sacrifice merit. According to the learned counsel, in thedirections contained in Islamic Academy, the main ratio of Pai Foundation thatthe unaided institutions should have autonomy in the matter of admission andfees structure has been totally forgotten. The learned counsel raised veryserious objections to the manner in which the various permanent committees setup in several States on the directions of Islamic Academy are conductingthemselves and forcing their decisions on private institutions. The proposed feestructure is required to be placed before the Committee in advance of theacademic year by the institute. It is the Committee which has to decide whetherthe fees proposed by the institute are justified and do not amount toprofiteering or charging of capitation fees. The Committee has been givenliberty to approve the fee structure of the institute or to propose a differentfee structure. The fee fixed by the Committee is binding for a period of threeyears and at the end of the said period the institute would be at liberty toapply for revision. Learned counsel gave in writing certain illustrations ofdecisions of the Fee Committee in few unaided colleges in the State of Karnatakaand pointed out that without proper financial expertise and without studying therelevant documents and accounts, the Committee determined the fee structure byonly taking into account the affordability of the parents of the students withno regard whatsoever to the viability of the institute on the basis of financesso generated. It is argued as to why private professional institutes should notbe allowed to modernize its facilities and provide better professional educationthan government institutes. It is pointed out that in the case of non-minorityunaided M.S. Ramaiaya Medical College, Bangalore, the Fee Committee initiallyfixed annual fee at Rs.2.55 lacs for MBBS course as against the justificationshown by the institute for demanding Rs. 3.90 lacs. The decision of the FeeCommittee led to the filing of writ petition by the institute in the High Courtof Karnataka and agitation and demonstrations by the students' union. TheCommittee under the pressure of the student community reduced the annual fee toRs.1.6 lacs which was re-affirmed after the High Court directed that themanagement of the unaided college should be heard before reducing the annualfee.

Thus the learned counsel on behalf of the KarnatakaPrivate Medical College Association questioned the correctness of the directionsof the Bench in Islamic Academy. It is submitted that as decided in PaiFoundation by a larger Bench, the essence of private educational institutions isthe autonomy that the institution must have in its management andadministration. The 'right to establish and administer' particularly comprisesthe right a) to admit students and b) to set up reasonable fee structure. Theautonomy of the institution, therefore, predicates that all seats would befilled by the management and there can be no reservations or quotas in favour ofthe State. In Pai Foundation, the only observations made were that some collegesmay be required to admit a small percentage of students belonging to weakersections of the society by granting them freeships or scholarships. It isconceded that autonomy of a private educational institution to admit students ofits choice does not mean that there can be no insistence on transparency in theadmission procedure and on merit being the criterion for admission. It issubmitted that autonomy of a private educational institution could mean thatthey can, according to the objects and purposes of their institutions, givepreference to a particular class or group of students like SC/ST in AmbedkarMedical College, students from backward area in Bijapur college and transportemployees' children in Madras State Corporation Employees' College or thechildren of employees of Larson & Turbo Company in a college established bythat company. The right to charge fees so as to run the college and to generatesufficient funds for its betterment and growth cannot be controlled by theState. That would seriously encroach upon the autonomy of the private unaidedinstitution. It is submitted, by quoting Dr. S. Radhakrishnan, the then Chairmanof the University Education Commission, that interests of democracy lie with theresistance of the trend towards governmental domination of the educationalprocess. In conclusion, learned counsel representing Association of privateunaided colleges in Karnataka submits that the decision in Islamic Academy andthe directions made therein go far beyond the law laid down by the larger Benchin Pai Foundation. The Bench in Islamic Academy virtually reviewed the largerBench decision in Pai Foundation in guise of implementation of the said decisionand on the basis of later developments. In Islamic Academy, the Bench acceptedthat there could be no rigid fee structure fixed by the government for privateinstitutions. An institute should have the freedom to fix its own fee structurefor day-to-day running of the institute and to generate funds for its furthergrowth. Only capitation and diversion of profits and surplus of the institute toany other business or enterprise was prohibited. It is submitted that IslamicAcademy contrary to the legal position explained in Pai Foundation, could notset up in each State permanent committees headed by retired High Court Judgeswith the power to decide on the justification of the fee proposed by theinstitute and propose any other fees. It could also not make the fee fixed bythe Committee binding for a period of three years. Learned counsel submits thatonce the college infrastructure and hospital facilities attached to the medicalcollege have been approved by the Medical Counsel of India in accordance withits regulations, the total expenses of college and hospital could be taken intoaccount by the institute to decide upon its own fee structure. Learned counsel,in criticizing the directions in Islamic Academy, submitted that although thescheme formulated in Unni Krishnan has been expressly overruled in PaiFoundation on the ground that it virtually nationalized education and resultedin surrendering total process of selection to the State, the Bench in IslamicAcademy's case, in an attempt to take up preventive measures to ensure merit andcheck profiteering in private unaided professional institutions, cannotre-introduce quota system for the management and the State and thus infringeupon the autonomy of the institute. Such an attempt, learned counsel contends,would be unconstitutional and violative of Article 19(1)(g) of the Constitutionin the case of non-minority unaided institutions and also violative of Article30 in the case of minority unaided professional institutions. Learned counselargued that constitutionally, as held in Pai Foundation, it is not permissiblefor the State to impose a Government quota, its own reservation policy, a lowerscale of fees etc. on a private unaided non-minority and unaided minorityprofessional institutions, only by taking into consideration the interests ofstudents. In the State of Karnataka for the academic year 2004-2005, byillustration, it is shown that 75% of the intake capacity is the Governmentquota in which are included 5% quota for sports, defence and NCC; 50% quota forScheduled Castes/Economically backward classes/Scheduled Tribes/OBC, there istotal 55% reservation quota in 75% of the government quota. The remaining 25%quota left for the management is also to be taken over by the Governmentinsisting on admitting students from the select list prepared on the commonentrance test conducted by the State.

Learned senior counsel Shri F. S. Nariman also supportedthe submissions made by other counsel on behalf of the unaided professionalinstitutions and added that the observations of the Bench in Islamic Academyclearly go far beyond anything said by eleven judges in Pai Foundation. It issubmitted that the question of quota 50:50 for State and management as referredto in St. Stephen's was in respect of aided minority educational institutionsand in Pai Foundation, the Bench never suggested fixation of quota for State andmanagement in case of unaided professional institutions. Learned senior counselparticularly pointed out that in Islamic Academy, the observations thatdifferent percentage of quota for students to be admitted by the management ineach minority and non-minority unaided professional institutions shall beseparately fixed on the basis of their need by the respective State Government,was a totally new direction, nowhere to be found or supported by any of theobservations in any of the opinions of the 11-Judge Bench in Pai Foundation.With regard to the most controversial observations contained in paragraph 68 ofthe opinion prepared by Justice Kirpal (the then CJI) in Pai Foundation, learnedcounsel contended that the decision in Unni Krishnan having been overruled by11-Judge Bench in Pai Foundation, the observations in paragraph 68 which aremore in tune with Unni Krishnan should not be read as the ratio of the case.Senior counsel was also critical of all the observations in fixing quota for theState in unaided institutions on the basis of local needs and not the needs ofthe community for which the institution was set up. Learned counsel alsocriticized the directions in Islamic Academy which according to him are contraryto the findings in Pai Foundation that certain unaided private educationalinstitutions which had been adopting its own admission procedure for the last 25years be allowed to continue to do so. It is submitted that as a part ofautonomy of the private unaided institution, the quantum of fees to be chargedmust be left to the institution and except for checking profiteering andcapitation fees, the State can have no say in fixation of fees. The scheme ofsetting up permanent committees for even unaided minority and non-minorityinstitutions was not at all envisaged in Pai Foundation. The Islamic Academywhich was the case before a smaller Bench could not do anything beyond andcontrary to what has been stated in Pai Foundation.

Learned senior counsel Shri R.F. Nariman in supportingthe argument advanced against the directions in Islamic Academy submitted thatany interference with the autonomy of the institution, other than to preventmal-administration, would not be saved by Article 19(6) of the Constitution. Theconcept of administration includes choice in admitting students and fixing areasonable fee structure. In the matter of admission, if objective criteria areadopted so as to reflect the merit, it would be unexceptionable. So far as feestructure is concerned, no institution can be allowed to charge capitation feeswhich only means something taken over and above what the institution needs byway of revenue and capital expenditure plus a reasonable surplus. Once UnniKrishnan was overruled, private education cannot be allowed to be nationalized.It is submitted that it may be possible for the State to scrutinize theexpenditure of revenue and capital expenditure of an aided and unaidedinstitution to ensure good administration but the State cannot devise its ownadmission procedure and determine in advance a fee structure for the unaidedprivate institutions. On the question of deducing ratio in Pai Foundation,learned counsel referred to Halsbury Laws of England Vol. 37 page 378 in whichthe meaning of ratio decidendi has been explained. It is submitted that it isonly the essence of the reason or principle upon which the question before acourt has been decided which is alone binding as a precedent. It is dangerous totake one or two observations out of a long judgment and to treat them as if theygive the ratio decidendi of the case.

Dr. Rajiv Dhawan, learned senior counsel in assailingdirections issued in Islamic Academy for setting up permanent committees to fixquota and fee structure highlighted that the State of Maharashtra has encroachedupon the rights of unaided institutions by directing in one of its GovernmentMemoranda dated 13.02.2003 that even in the quota of seats fixed for management,the unaided non-minority institutions should implement the rule of reservation(communal reservation) of the State Government.

Learned senior counsel contends that the net result ofsuch illegal directions is that the reservation policy for schedule castes,schedule tribes and OBCs is to be applied not only for 50% seats of governmentquota but also for the remaining 50% of management quota of unaided non-minorityinstitutions. Virtually, the management of non-aided institutions has beencompletely taken over by the state and as a result of communal reservations, thequota of seats fixed for government and quota fixed for the management may befilled by granting admissions to students of non-minority communities .

Learned senior counsel contends that in Pai Foundation,maximum autonomy is conceded in favour of unaided institutions. The onlyinsistence is on maintenance of transparency in method of admission and fixationof such fee structure that does not permit charging of capitation fee.Interpreting provisions of Article 19(6) and Article 30 it is contended thatconstitutional limitation necessarily would vary in imposing reasonablerestriction where the institution is unaided or aided.

On the issue of constitutional protection to the unaidedminority institutions, the contention advanced that general restrictionspermissible under Article 19(6) can also be applied to unaided minorityinstitutions, it is submitted, is misconceived. The submission is that educationis a recognized head of charity. The object of establishing educationalinstitution is not to make profit. Imparting education is essentially charitablein nature. The charitable nature of the occupation of establishing and runningan educational institution has been recognized in Pai Foundation. Therefore, allrestrictions, which are permissible under Article 19(6) in case of other kind ofprofessions and occupations, cannot apply to educational activities. It issubmitted that restrictions imposed should satisfy the requirements of Article30 and not only of Article 19(6).

In Pai Foundation, for determining linguistic andreligious minorities, the unit to be taken is State. Therefore, when Tamilians,who are in majority in Tamil Nadu, establish an institution for Tamil studentsin Karnataka, it would be a minority institution in Karnataka. What would be therights of such an institution of linguistic minority has not been answeredeither in Pai Foundation or in Islamic Academy. Therefore, this Bench shoulddecide what are the rights of such cross-border institutions.

In short, the submission made by Sr. Counsel Dr. RajivDhawan is that there is nothing in Pai Foundation, which permits fixation ofquotas for government seats, fixation of fee structure by the State, impositionof its reservation policy and imposition of candidates on the basis of commonentrance test conducted by the State. In Pai Foundation, the State can have somecontrolling influence on unaided institutions for the purpose of ensuringtransparency in admissions and checking the collection of capitation fee. In PaiFoundation, no preemptive action by setting up permanent committees by the Statewas envisaged or even indirectly approved.

The decision in Islamic Academy, it is submitted, iscontrary to the decision by the larger Bench in Pai Foundation, and deservestherefore to be so declared by this Bench.

Learned senior counsel Shri U.U. Lalit appears for thesole Dental College established by Muslims in the State of Maharashtra. Apartfrom supporting the contention advanced by other counsel against the scheme ofcommittees evolved in Islamic Academy, learned counsel submitted that thejudgment of the Bombay High Court against which they have filed an appeal beforethis court has resulted in a situation where affluent students are gettingadmission at lesser fee and poorer students are kept out of college. It wassubmitted that the petitioner institute being the sole institute set up forMuslim community, their desire to cater to the educational needs of Muslimstudents from all over cannot be discouraged. Objecting to the fee structureprescribed by the committees in Maharashtra, the suggestion made on behalf ofthe institute is as under :-

(a)

25% students will be charged five times of the averagefee, which was in vogue before TMA Pai's judgment.

(b)50% students will be charged average fee.

(c)Remaining 25% will be charged 1/4th of the averagefee.

It is submitted that in the above proposed feestructure, meritorious students coming from all sections of society will be ableto take admissions. At the same time, the educational institutions will be ableto recover the amount required for running the educational institution in thebest possible manner. It is, therefore, prayed that Bombay High Court judgmentdated 23.08.2003 prescribing uniform fee structure for all the students be setaside and minority educational institutions be allowed in the exercise of theirfundamental right, to prescribe fee under a three-tier system subject to therider of non-profiteering and not charging capitation fee.

In reply, on behalf of the respondents, senior counsel,Shri K.K. Venugopal, who appeared for the States of Kerala led the arguments. Itmay be noted at this stage that after the decisions in Pai Foundation andIslamic Academy, in the States of Kerala, Karnataka, Maharashtra and Tamil Nadu,their respective legislatures have passed Acts regulating admissions andcharging of fee in both aided and unaided minority and non-minority privateeducational institutions engaged in imparting education in professional,medical, engineering and allied courses.

On behalf of the State of Kerala, it is pointed out thatonly 25% seats in private professional colleges have been reserved to be filledon the basis of central entrance test and remaining 75% seats are to be filledby the management. It is submitted that the group of paragraphs starting with 67and ending with 70 in the majority opinion in Pai Foundation carries the title"Private Unaided Professional Colleges." This heading covers bothunaided minority and non-minority professional colleges. Since paragraph 68 inthe majority opinion in Pai Foundation has been differently understood by theHigh Court of Karnataka and Kerala, an occasion has arisen to resolve thecontroversy by a Bench of the present combination of seven judges.

To justify fixation of quota for seat sharing betweenState and the private management and fixing a reasonable fee structure to avoidprofiteering and capitation, the learned counsel highlighted certain illicitpractices, which are being resorted to, by the private institutions to exploitthe student community. It is submitted both the judgments in Pai Foundation andIslamic Academy, profiteering, commercialization of education and the collectionof capitation fee have been condemned. This court had expressly held that itwould be open to the government to make regulations for the purpose ofpreventing commercialization of professional education. It is on the linesuggested by this court that the Government of Kerala had made regulations bothfor the purpose of admissions as well as for fixing reasonable fee which willcover not only the expenditure incurred by the institution but also give them areasonable revenue surplus for further growth and betterment of the institution.

The High Court of Kerala by its judgment of 23.08.2003has fixed rupees 1.50 lacs provisionally per annum as the fee. The Governmenthas fixed 1.76 lacs. What is being disclosed by Pushpgiri Medical College itselfis that they had collected rupees 4.38 lacs and rupees 22 lacs from differentstudents. The explanation given is that these collections are for the wholeperiod of five years to prevent the students from leaving the college mid-way.This explanation on the face of it is disingenuous as rupees 22 lacs was notcollected uniformly from all the students. Despite the students leaving thecourse mid-way, the seats would still be filled. It is due to this menace andevil practice of exploiting parents and students that a Committee was requiredto be set up for restricting admissions in proportion to the need of thepeculiar character of the institution and to check profiteering.

It is submitted that if the scheme as evolved in IslamicAcademy of setting up of permanent Committees is not allowed, education which isalready commercialized to some extent would be wholly inaccessible to studentscoming from middle classes, lower-middle classes and poor sections of thesociety. To provide access to professional education even to weaker sections ofthe society in fifty percent quota of seats to be filled by the government, thereservation policy of the government has been applied. The fifty-fifty percentquota between government and management fixed by the government has been changedto twenty five-seventy five per cent by the court. Similarly, the court hasstruck down Regulation 11 framed by the State on the ground that the Statecannot foist fee of students on the institution and it would be left to themanagement to make provisions for poorer sections of the society throughfree-ships or scholarships.

In the above-mentioned background, learned counsel ShriVenugopal submits that this Bench is not considering the correctness of judgmentin Islamic Academy. It will not and cannot go into the question of correctnessof judgment in Pai Foundation which is of a larger Bench. This Bench has alimited jurisdiction to examine whether the 5-Judge Bench decision in IslamicAcademy is in any manner inconsistent with 11-Judge Bench judgment in PaiFoundation. It is submitted that if there are certain inherent inconsistenciesbetween various paragraphs particularly 59 and 68 of the judgment in PaiFoundation, they have to be resolved and that was exactly what was done by thefive judges in Islamic Academy.

In Pai Foundation, observation in paragraph 68 under theheading "Private Unaided Professional Colleges" read with para 69indicates appropriate machinery to be evolved to regulate admissions in bothcategories of private institutions to check exploiters who are chargingcapitation fee.

It is submitted that if the attempt by the Bench inIslamic Academy to resolve the apparent inconsistency in the judgment of PaiFoundation, indicated a reasonable and plausible interpretation of the 11-JudgeBench judgment in Pai Foundation, this court should refrain from substitutinganother interpretation.

It is for the first time in Pai Foundation that thequestion of application of Article 30 to minority professional colleges arose.All earlier judgments of this court were only concerning education in schoolsand colleges other than those imparting professional education. For the firsttime in Pai Foundation, the court held that running an educational institutionis an 'occupation' and Article 19(1) (g) guarantees it as a fundamental right.

It is submitted that regulation of non-minority unaidedprofessional institution is permissible under Article 19(6) of the Constitutionto prevent profiteering, levy of capitation fee and selection of non-meritoriouscandidates. Such regulation also does not violate right of minority professionalinstitutions under Article 30, which this Court has repeatedly held, is not anabsolute right but is merely a protection extended to minorities againstoppression by the majority.

The issue relating to reservation of seats for schedulecastes, schedule tribes or OBCs, either in management quota or in Governmentquota did not come up for consideration either in Pai Foundation or IslamicAcademy. This has to be separately dealt with by the present Bench

Similarly, it is submitted that right of minorityinstitutions to admit students from all over the country, irrespective of theirreligion and community and also from abroad such as NRIs never arose directlyfor consideration either in Pai Foundation or Islamic Academy. In this respect,it is submitted that the status of minority both religious and linguistic is tobe determined at the state level. The minority institutions cannot claim a rightto cater to the educational needs of their community from all over the countryand even from abroad.

In paragraph 68 of the judgment in Pai Foundation theuse of the phrase 'certain percentage based on local needs' and further phrase'different percentages can be fixed' for minority unaided and non-minorityunaided professional colleges' clearly convey that quotas can be fixed based onlocal needs for management and for the Government. Meritorious students fromweaker sections are not to be sidelined from higher and professional education.It is argued that the phrase 'local need' as used in paragraph 68 in thejudgment of Pai Foundation cannot be read to mean the needs of the institutionconcerned. So far as the selection based on merit is concerned, common entrancetest has been suggested both for aided and non-aided professional colleges. Whenthere is no common entrance test, merit becomes the casualty and the rich andthe affluent corner the seats.

So far as the right to fix a fee structure for unaidedminority or non-minority colleges or institutes is concerned, the argument thatpre-fixation of fee is a serious encroachment on the rights of minority andnon-minority, it is submitted, is not valid as full discretion is given to themanagement in fixing their fee structure. However, they would not be allowed tofix such high fee as would deny many meritorious students a chance of admissiononly because they come from economically weaker sections. It would be of noconsolation to them to find that after admissions are over and classes havestarted, the fee has been lowered by the monitoring committee. If the committeeis allowed to scrutinize the justification of fee fixation after the admissionsand the fee is lowered, it would not be possible for the meritorious students toagain seek admission. Through the Committees set up in Islamic Academy, the feestructure would be known before hand and would serve the interest of theinstitution as also the students seeking admission. The Committee has to fix feefor each college depending upon its peculiar conditions and its assets andavailability of funds. Coming to the question of cross subsidy, it is submittedthat in Pai Foundation, cross-subsidizing the weaker sections by the moreaffluent ones has not been held to be impermissible. The Bench in Pai Foundationoverruled the judgment in Unni Krishnan. The latter provided for"marginally less merited rural or poor students bearing the burden of richand urban students." The learned counsel suggests that solution can be toset apart fifteen percent of total seats in a local college to be filled by NRI/person of independent origin/ foreign students who would volunteer to fill upthe allotted seats on the management quota but on inter se merit. Each NRIstudent would subsidize two other students belonging to the economically andsocially weaker sections based on an annual income of say less than rupees 2.5lacs. This would cater to the financial needs of at least 30 out of 50 studentsselected on merit forming part of the Government quota and this would be aconstitutionally permissible solution.

To streamline and further improve the admissionprocedure and fixation of fee structure, learned counsel has made the followingproposals in writing submitting that they may be of practical value to theCommittees directed to be set up by Islamic Academy:-

A.ADMISSION:

Six months prior to the commencement of the academicyear, the Government would fix the percentage of students to be admitted by aminority (religious/linguistic) professional college (other than engineering ),taking into account the local needs of the State, the region as well as that ofthe minority-community. It would be a huge and cumbersome exercise in practice,to fix a percentage for each one of the institutions separately and it would bea pragmatic approach to have a fixed percentage for all the minorityinstitutions which is fair and reasonable. A practical approach to the problemwould require a very definite percentage to be fixed for minority institutions,say, 50% so that even if candidates of their choice, belonging to the minorityinstitutions, are only 25% they would still have the right to selectnon-minority students to make up the 50%, of course, from the CET held by theGovernment.

1.The CET held by Government would ensure that thevarious devices adopted by professional colleges to secretly demand capitationfees and take the same in black money, thus resulting in merit being thecasualty, would not take place. No prejudice will be caused to the management ofthe professional colleges as they could select the minority students based oninter se merit in the CET held by the Government.

2.There would equally be no disadvantage to anyparticular section or to Government if the same 50% rule is applied even tounaided non-minority professional colleges as well.

3.The result of following this procedure is that aconsortium holding the tests for admissions is done away with and a monitoringcommittee, preferably headed by a retired High Court or Supreme Court judgewould ensure fairness and transparency both in the minority and non-minorityprofessional institutions.

4.............

5.............

B.FEES:

The Committee suggested by Islamic Academy and theprocedure mentioned therein, appears to be the only safe method of ensuring thatextortionate fees are not charged by the medical colleges. At the same time, itwould be wrong to deny expenditure which the institution undertakes for ensuringexcellence in education. Equally, a reasonable surplus should be permitted sothat the fees charged cover the entire revenue expenditure and in additionleaves a reasonable surplus for future expansion. This alone would prevent theclandestine collection of capitation fees and would result in entrepreneursinvesting in new medical colleges.

The Committee suggested by Islamic Academy appears to bethe ideal one consisting of a chartered accountant, a representative of the MCIor AICTE as the case may be, with a retired judge of the High Court or theSupreme Court as the head.

The fee is to be fixed on the proposal of theinstitution supported by documents and the procedure of fee finalization shouldcommence at least 6 months in advance of the commencement of the academic year.

These proposals should all be by way of an interimarrangement as held by Islamic Academy in para 20 with the Parliament bringingin a law, as suggested by Islamic Academy without dragging its feet anylonger."

With regard to the ambit of the constitutional guaranteeof protection of educational rights of minorities under Article 30, learnedcounsel submits that both religious and linguistic minority, as held in PaiFoundation, are to be determined at the State level. On this understanding ofthe concept of 'minority', Article 30 has to be harmoniously construed withArticle 19(1)(g) and in the light of the Directive Principles of the StatePolicy contained in the Articles 38, 41 and 46. Rights of minorities cannot beplaced higher than the general welfare of the students and their right to takeup professional education on the basis of their merit.

The real purpose of Article 30 is to preventdiscrimination against members of the minority community and to place them on anequal footing with non-minority. Reverse discrimination was not the intention ofArticle 30. If running of educational institutions cannot be said to be at ahigher plane than the right to carry on any other business, reasonablerestriction similar to those placed on the right to carry on business can beplaced on educational institutions conducting professional courses. For thepurpose of these restrictions both minorities and non-minorities can be treatedat par and there would not be any violation of Article 30(1), which guaranteesonly protection against oppression and discrimination of the minority from themajority. Activities of education being essentially charitable in nature, theeducational institutions both of non-minority and minority character can beregulated and controlled so that they do not indulge in selling seats oflearning to make money. They can be allowed to generate such funds as would bereasonably required to run the institute and for its further growth.

On behalf of the State of Karnataka, learned seniorcounsel Shri T.R. Andhyarujuna supported the judgment in Islamic Academy ofsetting up permanent Committees for regulating admission and fee structure.Learned senior counsel submitted that relevant parts of paragraphs 58, 59 and 68and answer to question no. 4 in Pai Foundation have to be read and reconciled.They cannot be ignored simply as obiter. A combined reading of the relevantparagraphs and the answer to question no.4 makes it clear that regulations canbe made by the State for admission in minority and non-minority privateeducational institutions and more so in professional institutions. The merit foradmission to professional courses is generally determined by Governmentagencies. In Pai Foundation the reservation on certain percentage of seats bythe Government to be filled up by counseling by state agency, is heldpermissible.

With regard to the quota fixation, learned counselsubmits that paragraph 68 in Pai Foundation allows reservation of quota formanagement and for the Government for available seats. It is submitted that theeducational institutions cannot merely read the answer to question no.4 given byjudgment in Pai Foundation and ignore the other observations in other paragraphsof the judgment.

So far as the case of minority and non-minority unaidedinstitutions is concerned, learned counsel submits that the balancing act hasbeen performed in the judgment of Pai Foundation by regulating the economy ofeducational institutions moderated by necessary State legislation. Observationin paragraph 68 in Pai Foundation does not amount to permitting nationalizationor takeover of the private institutions which was the main feature found foul inthe decision in Unni Krishnan and was consequently overruled. The observation inPai Foundation in paragraph 68 strikes the balance between the academy andeducation. To read paragraph 68 as merely giving an instance would be to ignorethe concern of the Bench in Pai Foundation of providing reservation to poorer orbackward sections of society even in private institutions. The description ofpercentage of reservation in paragraph 68 is different from reservation policyof the State for State institutions and in State quota.

It is submitted that the reservation spoken of inparagraph 68 of Pai Foundation is to cater to the needs of poorer and weakersections and also other students depending upon the local needs.

So far as the regulation of fee structure is concerned,it is submitted that in paragraph 69 in Pai Foundation there is a mention of"appropriate machinery to be devised by the State or University to ensurethat no capitation fee is charged and profiteering is checked." Thejudgment in Islamic Academy merely implements the legal position explained byPai Foundation by providing a fee determination committee. In reply to theargument that post-fixation audit may be permitted to check profiteering andcapitation, the learned counsel answers that if the role of the Committee islimited to supervisory post fixation audit, it would amount to denying crediblerestriction to the charging of capitation fee. It is chimerical to suggest thatthe student should first pay the exorbitant fee fixed by the institution andlater on complain about it to the post audit machinery to recover the excessthrough court of law. The controlling of the fee fixing machinery is necessarilyto be done before it is charged otherwise it is meaningless to the benefit ofthe students for whom it is suggested in paragraph 69. The general principle forscrutinizing the fee structure is two-fold; (1) that education is a charity, (2)that educational institutions cannot charge such fee as is not required for thepurpose of fulfilling that object which means cost plus reasonable surplus forexpansion and growth of the institution. These are the parameters before theCommittee whose decisions, in any case, are subject to judicial review.

So far as the admissions based on common entrance testare concerned, it is submitted that paragraphs 58 and 59 of Pai Foundationpermit regulations to be framed for admission in professional institutions byState agency to ensure admission on merit. In the absence of CET and centralizedcounseling, private educational institutions would pick and choose candidatesignoring merit, as has been evident from the Karnataka experience. If theprivate professional educational institutions conceive that merit cannot beignored in granting admission, direction to make selection based on CET does notin any manner adversely affect the character of the minority institution. TheState regulation providing for CET is a reasonable restriction and it will passthe test of Article 19(6) both in respect of aided and unaided non-minorityinstitutions. Private unaided institutions have also to admit students on thebasis of merit in a fair and transparent manner in the interest of studentcommunity. Right of private educational institutions to admit students can beregulated. Such regulations if in national and public interest do not in anymanner impinge on the right of minority.

Learned counsel points out that so far as the State ofKarnataka is concerned, no reservation policy is being insisted upon in theseats or quota given to the management.

Arguments were also advanced supporting the directionsin Islamic Academy by learned senior counsel Shri P.P. Rao appearing for theState of Tamil Nadu. It is submitted that already a statement had been made inthe High Court that the State of Tamil Nadu would not be insisting on communalreservation based on State policy in the minority institution.

Learned counsel pressed into service Article 51-A(j)providing for Fundamental Duties in the Constitution. It is submitted thatfundamental duty is enjoined on citizens to so direct their individual andcollective activities that the nation constantly rises to higher levels ofendeavour and achievement. This duty implies that the State on its part is tofacilitate discharge of duties by the citizen in relation to the professionaleducation. The State is bound to ensure admission to colleges that are madepurely on relative merit to be objectively assessed by a responsible agency. Thedecisions of this court rendered from time to time consistently and unanimouslyheld that regulation could be made for achieving standards of excellence ineducation. Reliance is placed on Dr. Prithvi v. State of MP (1999) 7 SCC 120 at153 and 155; Professor Yashpal v. State of Chhattisgarh (2005) 2 SCC 61 at 79paragraph 90.

VA few concepts

There are a few concepts which should be very clear inour minds at the very outset, as these are the concepts which flow asundercurrents in the sea of issues surfacing for resolution in all educationalcases. These concepts are referable to : (i) What is 'education'? (ii) What isthe inter-relationship of Articles 19(1)(g), 29 and 30 of the Constitution?(iii) In the context of minority educational institutions, what difference doesit make if they are aided or unaided or if they seek recognition or affiliationor do not do so? (iv) Would it make any difference if the instructions impartedin such educational institutions relate to professional or non-professionalcourses of study?Education

'Education' according to Chambers Dictionary is"bringing up or training; strengthening of the powers of body or mind;culture."

In Advanced Law Lexicon (P. Ramanatha Aiyar, 3rdEdition, 2005, Vol.2) 'education' is defined in very wide terms. It is stated :"Education is the bringing up; the process of developing and training thepowers and capabilities of human beings. In its broadest sense the wordcomprehends not merely the instruction received at school, or college but thewhole course of training moral, intellectual and physical; is not limited to theordinary instruction of the child in the pursuits of literature. It alsocomprehends a proper attention to the moral and religious sentiments of thechild. And it is sometimes used as synonymous with 'learning'."

In The Sole Trustee, Lok Shikshana Trust v. C.I.T.,(1976) 1 SCC 254, the term 'education' was held to mean __ "the systematicinstruction, schooling or training given to the young in preparation for thework of life. It also connotes the whole course of scholastic instruction whicha person has received. What education connotes is the process of trainingand developing the knowledge, skill, mind and character of students by formalschooling."

In 'India  Vision 2020' published by PlanningCommission of India, it is stated (at p.250) __ "Education is an importantinput both for the growth of the society as well as for the individual. Properlyplanned educational input can contribute to increase in the Gross NationalProducts, cultural richness, build positive attitude towards technology andincrease efficiency and effectiveness of the governance. Education opens newhorizons for an individual, provides new aspirations and develops new values. Itstrengthens competencies and develops commitment. Education generates in anindividual a critical outlook on social and political realities and sharpens theability to self-examination, self-monitoring and self-criticism." "Theterm 'Knowledge Society', 'Information Society' and 'Learning Society' have nowbecome familiar expressions in the educational parlance, communicating emergingglobal trends with far-reaching implications for growth and development of anysociety. These are not to be seen as mere clichi or fads but words that arepregnant with unimaginable potentialities. Information revolution, informationtechnologies and knowledge industries, constitute important dimensions of aninformation society and contribute effectively to the growth of a knowledgesociety." (ibid, p.246)

"Alvin Toffler (1980) has advanced the idea thatpower at the dawn of civilization resided in the 'muscle'. Power then gotassociated with money and in 20th century it shifted its focus to 'mind'. Thusthe shift from physical power to wealth power to mind power is an evolution inthe shifting foundations of economy. This shift supports the observation ofFrancis Bacon who said 'knowledge itself is power'; stressing the same point andupholding the supremacy of mind power, in his characteristic expression, WinstonChurchill said, "the Empires of the future shall be empires of themind". Thus, he corroborated Bacon and professed the emergence of theknowledge society." (ibid, p.247)

Quadri, J. has well put it in his opinion in PaiFoundation (para 287) ___ "Education plays a cardinal role in transforminga society into a civilised nation. It accelerates the progress of the country inevery sphere of national activity. No section of the citizens can be ignored orleft behind because it would hamper the progress of the country as a whole. Itis the duty of the State to do all it could, to educate every section ofcitizens who need a helping hand in marching ahead along with others".

According to Dr. Zakir Hussain, a great statesman withdemocratic credentials, a secularist and an educationist, a true democracy isone where each and every citizen is involved in the democratic process and thisend cannot be achieved unless we remove the prevailing large-scale illiteracy inour country. Unless universal education is achieved which allows every citizento participate actively in the processes of democracy, we can never claim to bea true democracy. Dr. Zakir Hussain sought to ensure that the seeds of knowledgewere germinated in the minds of as many citizens as possible, with a view toenabling them to perform their assigned roles on the stage of democracy. [Dr.Zakir Hussain, as quoted by Justice A.M. Ahmadi, the then Chief Justice ofIndia, (1996) 2 SCC (J) 1, at 2-3.]

Under Article 41 of the Constitution, right toeducation, amongst others, is obligated to be secured by the State by makingeffective provision therefor. Fundamental duties recognized by Article 51Ainclude, amongst others, (i) to develop the scientific temper, humanism and thespirit of inquiry and reform; and (ii) to strive towards excellence in allspheres of individual and collective activity so that the nation constantlyrises to higher levels of endeavour and achievement. None can be achieved orensured except by means of education. It is well accepted by the thinkers,philosophers and academicians that if JUSTICE, LIBERTY, EQUALITY and FRATERNITY,including social, economic and political justice, the golden goals set out inthe Preamble to the Constitution of India are to be achieved, the Indian polityhas to be educated and educated with excellence. Education is a national wealthwhich must be distributed equally and widely, as far as possible, in theinterest of creating an egalitarian society, to enable the country to rise highand face global competition. 'Tireless striving stretching its arms towardsperfection' (to borrow the expression from Rabindranath Tagore) would not besuccessful unless strengthened by education.

Education is "continual growth of personality,steady development of character, and the qualitative improvement of life. Atrained mind has the capacity to draw spiritual nourishment from everyexperience, be it defeat or victory, sorrow or joy. Education is training themind and not stuffing the brain." (See Eternal Values for A ChangingSociety, Vol. III Education for Human Excellence, published by Bharatiya VidyaBhavan, Bombay, at p. 19)

"We want that education by which character isformed, strength of mind is increased, the intellect is expanded, and by whichone can stand on one's own feet." "The end of all education, alltraining, should be man-making. The end and aim of all training is to make theman grow. The training by which the current and expression of will are broughtunder control and become fruitful is called education." (Swami Vivekanandas quoted in ibid, at p.20)

Education, accepted as a useful activity, whether forcharity or for profit, is an occupation. Nevertheless, it does not cease to be aservice to the society. And even though an occupation, it cannot be equated to atrade or a business.

In short, education is national wealth essential for thenation's progress and prosperity.

Articles 19(1)(g), 29(2) and 30(1): inter-relationshipbetween

The right to establish an educational institution, forcharity or for profit, being an occupation, is protected by Article 19(1) (g).Notwithstanding the fact that the right of a minority to establish andadminister an educational institution would be protected by Article 19(1)(g) yetthe Founding Fathers of the Constitution felt the need of enacting Article 30.The reasons are too obvious to require elaboration. Article 30(1) is intended toinstill confidence in minorities against any executive or legislativeencroachment on their right to establish and administer educational institutionof their choice. Article 30(1) though styled as a right, is more in the natureof protection for minorities. But for Article 30, an educational institution,even though based on religion or language, could have been controlled orregulated by law enacted under Clause (6) of Article 19, and so, Article 30 wasenacted as a guarantee to the minorities that so far as the religious orlinguistic minorities are concerned, educational institutions of their choicewill enjoy protection from such legislation. However, such institutions cannotbe discriminated against by the State solely on account of their being minorityinstitutions. The minorities being numerically less qua non-minorities, may notbe able to protect their religion or language and such cultural values and theireducational institutions will be protected under Article 30, at the stage of lawmaking. However, merely because Article 30(1) has been enacted, minorityeducational institutions do not become immune from the operation of regulatorymeasure because the right to administer does not include the right tomal-administer. To what extent the State regulation can go, is the issue. Thereal purpose sought to be achieved by Article 30 is to give minorities someadditional protection. Once aided, the autonomy conferred by the protection ofArticle 30(1) on the minority educational institution is diluted as provisionsof Article 29(2) will be attracted. Certain conditions in the nature ofregulations can legitimately accompany the State aid.

As an occupation, right to impart education is afundamental right under Article 19(1)(g) and, therefore, subject to control byclause (6) of Article 19. This right is available to all citizens withoutdrawing a distinction between minority and non-minority. Such a right is,generally speaking, subject to laws imposing reasonable restrictions in theinterest of the general public. In particular, laws may be enacted on thefollowing subjects: (i) the professional or technical qualifications necessaryfor practicing any profession or carrying on any occupation, trade or business;(ii) the carrying on by the State, or by a corporation owned or controlled bythe State of any trade, business, industry or service whether to the exclusion,complete or partial of citizens or otherwise. Care is taken of minorities,religious or linguistic, by protecting their right to establish and administereducational institutions of their choice under Article 30. To some extent, whatmay be permissible by way of restriction under Article 19(6) may fall foul ofArticle 30. This is the additional protection which Article 30(1) grants to theminorities.

The employment of expressions 'right to establish andadminister' and 'educational institution of their choice' in Article 30(1) givesthe right a very wide amplitude. Therefore, a minority educational institutionhas a right to admit students of its own choice, it can, as a matter of its ownfreewill, admit students of non-minority community. However, non-minoritystudents cannot be forced upon it. The only restriction on the freewill of theminority educational institution admitting students belonging to non-minoritycommunity is, as spelt out by Article 30 itself, that the manner and number ofsuch admissions should not be violative of the minority character of theinstitution.

Aid and affiliation or recognition, both by State, bringin some amount of regulation as a condition of receiving grant or recognition.The scope of such regulations, as spelt out by 6-Judge Bench decision in Rev.Sidhrajbhai case AIR 1963 SC 540 and 9-Judge Bench case in St. Xavier's mustsatisfy the following tests: (a) the regulation is reasonable and rational; (b)it is regulative of the essential character of the institution and is conduciveto making the institution an effective vehicle of education for the minoritycommunity or other persons who resort to it; (c) it is directed towardsmaintaining excellence of the education and efficiency of administration so asto prevent it from falling in standards. These tests have met the approval ofPai Foundation. However, Rev. Sidhrajbhai's case and St. Xavier's go on to saythat no regulation can be cast in 'the interest of the nation' if it does notserve the interest of the minority as well. This proposition (except when it isread in the light of the opinion of Quadri, J.) stands overruled in PaiFoundation where Kirpal, CJ, speaking for majority has ruled (vide para 107) ___"any regulation framed in the national interest must necessarily apply toall educational institutions, whether run by the majority or the minority. Sucha limitation must necessarily be read into Article 30. The right under Article30(1) cannot be such as to override the national interest or to prevent theGovernment from framing regulations in that behalf". (Also see, paras 117to 123 and para 138 of Pai Foundation where Kirpal, CJ has dealt with St.Xavier's in details). No right can be absolute. Whether a minority or anon-minority, no community can claim its interest to be above the nationalinterest.

'Minority' And 'Minority Educational Institutions'Theterm 'minority' is not defined in the Constitution. Chief Justice Kirpal,speaking for the majority in Pai Foundation, took clue from the provisions ofthe State Reorganisation Act and held that in view of India having been dividedinto different linguistic States, carved out on the basis of the language of themajority of persons of that region, it is the State, and not the whole of India,that shall have to be taken as the unit for determining linguistic minorityviz-a-viz Article 30. Inasmuch as Article 30(1) places on par religions andlanguages, he held that the minority status, whether by reference to language orby reference to religion, shall have to be determined by treating the State asunit. The principle would remain the same whether it is a Central legislation ora State legislation dealing with linguistic or religious minority. Khare, J. (asHis Lordship then was), Quadri, J. and Variava & Bhan, JJ. in their separateconcurring opinions agreed with Kirpal, CJ. According to Khare, J., take thepopulation of any State as a unit, find out its demography and calculate if thepersons speaking a particular language or following a particular religion areless than 50% of the population, then give them the status of linguistic orreligious minority. The population of the entire country is irrelevant for thepurpose of determining such status. Quadri, J. opined that the word 'minority'literally means 'a non-dominant' group. Ruma Pal, J. defined the word 'minority'to mean 'numerically less'. However, she refused to take the State as a unit forthe purpose of determining minority status as, in her opinion, the question ofminority status must be determined with reference to the country as a whole. Sheassigned reasons for the purpose. Needless to say, her opinion is a lone voice.Thus, with the dictum of Pai Foundation, it cannot be doubted that minority,whether linguistic or religious, is determinable only by reference to thedemography of a State and not by taking into consideration the population of thecountry as a whole.

Such definition of minority resolves one issue but givesrise to many a questions when it comes to defining 'minority educationalinstitution'. Whether a minority educational institution, though established bya minority, can cater to the needs of that minority only? Can there be anenquiry to identify the person or persons who have really established theinstitution? Can a minority institution provide cross-border or inter-Stateeducational facilities and yet retain the character of minority educationalinstitution?

In Kerala Education Bill, the scope and ambit of rightconferred by Article 30(1) came up for consideration. Article 30(1) does notrequire that minorities based on religion should establish educationalinstitutions for teaching religion only or that linguistic minority shouldestablish educational institution for teaching its language only. The objectunderlying Article 30(1) is to see the desire of minorities being fulfilled thattheir children should be brought up properly and efficiently and acquireeligibility for higher university education and go out in the world fullyequipped with such intellectual attainments as will make them fit for enteringpublic services, educational institutions imparting higher instructionsincluding general secular education. Thus, the twin objects sought to beachieved by Article 30(1) in the interest of minorities are: (i) to enable suchminority to conserve its religion and language, and (ii) to give a thorough,good general education to the children belonging to such minority. So long asthe institution retains its minority character by achieving and continuing toachieve the above said two objectives, the institution would remain a minorityinstitution.

The learned Judges in Kerala Education Bill were posedwith the issue projected by Article 29(2). What will happen if the institutionwas receiving aid out of State funds? The apparent conflict was resolved by theJudges employing a beautiful expression. They said, Article 29(2) and 30(1),read together, clearly contemplate a minority institution with a 'sprinkling ofoutsiders' admitted in it. By admitting a member of non-minority into theminority institution, it does not shed its character and cease to be a minorityinstitution. The learned Judges went on to observe that such 'sprinkling' wouldenable the distinct language, script and culture of a minority being propagatedamongst non-members of a particular minority community and that would indeedbetter serve the object of conserving the language, religion and culture of thatminority.

Chief Justice Hidayatullah, speaking for theConstitution Bench in State of Kerala, Etc. v. Very Rev. Mother Provincial,Etc., (1970) 2 SCC 417, has not used the expression 'sprinkling' but hasexplained the reason why that was necessary. He said ___ "It matters not ifa single philanthropic individual with his own means, founds the institution orthe community at large contributes the funds. The position in law is the sameand the intention in either case must be to found an institution for the benefitof a minority community by a member of that community. It is equally irrelevantthat in addition to the minority community others from other minoritycommunities or even from the majority community can take advantage of theseinstitutions. Such other communities bring in income and they do not have to beturned away to enjoy the protection". (para 8)

Much of controversy can be avoided if only the nature ofthe right conferred by Articles 29 and 30 is clearly understood. The nature andcontent of these articles stands more than clarified and reconciled inter se asalso with other articles if only we understand that these two articles areintended to confer protection on minorities rather than a right as such. In St.Stephen's, their Lordships clearly held (vide para 28) that Article 30(1) is"a protective measure only" and further said (vide para 59) thatArticle 30(1) implied certain 'privilege'. Articles 29 and 30 can be betterunderstood and utilized if read as a protection and/or a privilege of minorityrather than an abstract right.

In this background arises the complex question oftrans-border operation of Article 30(1). Pai Foundation has clearly ruled infavour of the State (or a province) being the unit for the purpose of decidingminority. By this declaration of law, certain consequences follow. First, everycommunity in India becomes a minority because in one or the other State of thecountry it will be in minority ___ linguistic or religious. What would happen ifa minority belonging to a particular State establishes an educationalinstitution in that State and administers it but for the benefit of membersbelonging to that minority domiciled in the neighbouring State where thatcommunity is in majority? Would it not be a fraud on the Constitution? In St.Stephen's, their Lordships had ruled that Article 31 is a protective measureonly for the benefit of religious and linguistic minorities and "no illfitor camouflaged institution should get away with the constitutionalprotection" (para 28). The question need not detain us for long as itstands answered in no uncertain terms in Pai Foundation. Emphasising the needfor preserving its minority character so as to enjoy the privilege of protectionunder Article 30(1), it is necessary that the objective of establishing theinstitution was not defeated. "If so, such an institution is under anobligation to admit the bulk of the students fitting into the description of theminority community. Therefore, the students of that group residing in the Statein which the institution is located have to be necessarily admitted in a largemeasure because they constitute the linguistic minority group as far as thatState is concerned. In other words, the predominance of linguistic studentshailing from the State in which the minority educational institution isestablished should be present. The management bodies of such institutions cannotresort to the device of admitting the linguistic students of the adjoining Statein which they are in a majority, under the fagade of the protection given underArticle 30(1)." (para 153). The same principle applies to religiousminority. If any other view was to be taken, the very objective of conferringthe preferential right of admission by harmoniously constructing Articles 30(1)and 29(2), may be distorted.It necessarily follows from the law laid down in PaiFoundation that to establish a minority institution the institution mustprimarily cater to the requirements of that minority of that State else itscharacter of minority institution is lost. However, to borrow the words of ChiefJustice S.R. Das (in Kerala Education Bill) a 'sprinkling' of that minority fromother State on the same footing as a sprinkling of non-minority students, wouldbe permissible and would not deprive the institution of its essential characterof being a minority institution determined by reference to that State as aunit.Minority educational institutions: classifiable in three

To establish an educational institution is a FundamentalRight. Several educational institutions have come up. In Kerala Education Bill,'minority educational institutions' came to be classified into three categories,namely, (i) those which do not seek either aid or recognition from the State;(ii) those which want aid; and (iii) those which want only recognition but notaid. It was held that the first category protected by Article 30(1) can"exercise that right to their hearts' content" unhampered byrestrictions. The second category is most significant. Most of the educationalinstitutions would fall in that category as no educational institution can, inmodern times, afford to subsist and efficiently function without some State aid.So is with the third category. An educational institution may survive withoutaid but would still stand in need of recognition because in the absence ofrecognition, education imparted therein may not really serve the purpose as forwant of recognition the students passing out from such educational institutionsmay not be entitled to admission in other educational institutions for higherstudies and may also not be eligible for securing jobs. Once an educationalinstitution is granted aid or aspires for recognition, the State may grant aidor recognition accompanied by certain restrictions or conditions which must befollowed as essential to the grant of such aid or recognition. This Courtclarified in Kerala Educational Bill that 'the right to establish and administereducational institutions' conferred by Article 30(1) does not include the rightto mal-administer, and that is very obvious. Merely because an educationalinstitution belongs to minority it cannot ask for aid or recognition thoughrunning in unhealthy surroundings, without any competent teachers and which doesnot maintain even a fair standard of teaching or which teaches matterssubversive to the welfare of the scholars. Therefore, the State may prescribereasonable regulations to ensure the excellence of the educational institutionsto be granted aid or to be recognized. To wit, it is open to the State to laydown conditions for recognition such as, an institution must have a particularamount of funds or properties or number of students or standard of education andso on. The dividing line is that in the name of laying down conditions for aidor recognition the State cannot directly or indirectly defeat the veryprotection conferred by Article 30(1) on the minority to establish andadminister educational institutions. Dealing with the third category ofinstitutions, which seek only recognition but not aid, their Lordships held that'the right to establish and administer educational institutions of their choice'must mean the right to establish real institutions which will effectively servethe needs of the community and scholars who resort to these educationalinstitutions. The dividing line between how far the regulation would remainwithin the constitutional limits and when the regulations would cross the limitsand be vulnerable is fine yet perceptible and has been demonstrated in severaljudicial pronouncements which can be cited as illustrations. They have beendealt with meticulous precision coupled with brevity by S.B. Sinha, J. in hisopinion in Islamic Academy. The considerations for granting recognition to aminority educational institution and casting accompanying regulation would besimilar as applicable to a non-minority institution subject to two overridingconsiderations: (i) the recognition is not denied solely on the ground of theeducational institution being one belonging to minority, and (ii) the regulationis neither aimed at nor has the effect of depriving the institution of itsminority status.

Article 30(1) speaks of 'educational institutions'generally and so does Article 29(2). These Articles do not draw any distinctionbetween an educational institution dispensing theological education orprofessional or non-professional education. However, the terrain of thought ashas developed through successive judicial pronouncements culminating in PaiFoundation is that looking at the concept of education, in the backdrop ofconstitutional provisions, the professional educational institutions constitutea class by themselves as distinguished from the educational institutionsimparting non-professional education. It is not necessary for us to go deep intothis aspect of the issue posed before us inasmuch as Pai Foundation hasclarified that merit and excellence assume special significance in the contextof professional studies. Though merit and excellence are not anathema tonon-professional education, yet at that level and due to the nature of educationwhich is more general, merit and excellence do not stand in need of that degreethereof, as is called for in the context of professional education.

Difference between professional and non-professionaleducation institutions

Dealing with unaided minority educational institutions,Pai Foundation holds that Article 30 does not come in the way of the Statestepping in for the purpose of securing transparency and recognition of merit inthe matter of admissions. Regulatory measures for ensuring educational standardsand maintaining excellence thereof are no anathema to the protection conferredby Article 30(1). However, a distinction is to be drawn between unaided minorityeducational institution of the level of schools and undergraduate colleges onone side and the institutions of higher education, in particular, thoseimparting professional education on the other side. In the former, the scope formerit based selection is practically nil and hence may not call for regulation.But in the case of latter, transparency and merit have to be unavoidably takencare of and cannot be compromised. There could be regulatory measures forensuring educational standards and maintaining excellence thereof. (See para161, Answer to Q.4, in Pai Foundation). The source of this distinction betweentwo types of educational institutions referred to hereinabove is to be found inthe principle that right to administer does not include a right tomal-administer.

S.B. Sinha, J. has, in his separate opinion in IslamicAcademy, described (in para 199) the situation as a pyramid like situation andsuggested the right of minority to be read along with fundamental duty. Higherthe level of education, lesser are the seats and higher weighs the considerationfor merit. It will, necessarily, call for more State intervention and lesser sayfor minority.

Educational institutions imparting higher education,i.e. graduate level and above and in particular specialized education such astechnical or professional, constitutes a separate class. While embarking uponresolving issues of constitutional significance, where the letter of theConstitution is not clear, we have to keep in view the spirit of theConstitution, as spelt out by its entire scheme. Education aimed at impartingprofessional or technical qualifications stand on a different footing from othereducational instructions. Apart from other provisions, Article 19(6) is a clearindicator and so are clauses (h) and (j) of Article 51A. Education uptoundergraduate level aims at imparting knowledge just to enrich mind and shapethe personality of a student. Graduate level study is a doorway to admissions ineducational institutions imparting professional or technical or other highereducation and, therefore, at that level, the considerations akin to thoserelevant for professional or technical educational institutions step in andbecome relevant. This is in national interest and strengthening the nationalwealth, education included. Education up to undergraduate level on one hand andeducation at graduate and post-graduate levels and in professional and technicalinstitutions on the other are to be treated on different levels inviting notidentical considerations, is a proposition not open to any more debate after PaiFoundation. A number of legislations occupying the field of education whoseconstitutional validity has been tested and accepted suggest that whilerecognition or affiliation may not be a must for education up to undergraduatelevel or, even if required, may be granted as a matter of routine, recognitionor affiliation is a must and subject to rigorous scrutiny when it comes toeducational institutions awarding degrees, graduate or post-graduate,post-graduate diplomas and degrees in technical or professional disciplines.Some such legislations are found referred in paras 81 and 82 of S.B. Sinha, J'sopinion in Islamic Academy.

Having so stated and clarified these principles whichwould be germane to answering the four questions posed before us, now we take upeach of the four questions seriatim and answer the same.

And yet, before we do so, let us quote and reproduceparagraphs 68, 69 and 70 from Pai Foundation to enable easy reference thereto asthe core of controversy touching the four questions which we are dealing withseems to have originated therefrom. These paragraphs read as under:"68.(I)It would be unfair to apply the same rules and regulations regulating admissionto both aided and unaided professional institutions. It must be borne in mindthat unaided professional institutions are entitled to autonomy in theiradministration while, at the same time, they do not forego or discard theprinciple of merit. It would, therefore, be permissible for the university orthe Government, at the time of granting recognition, to require a privateunaided institution to provide for merit-based selection while, at the sametime, giving the management sufficient discretion in admitting students. Thiscan be done through various methods.

(II) For instance, a certain percentage of the seats canbe reserved for admission by the management out of those students who havepassed the common entrance test held by itself or by the State/university andhave applied to the college concerned for admission, while the rest of the seatsmay be filled up on the basis of counselling by the State agency. This willincidentally take care of poorer and backward sections of the society. Theprescription of percentage for this purpose has to be done by the Governmentaccording to the local needs and different percentages can be fixed for minorityunaided and non-minority unaided and professional colleges. The same principlesmay be applied to other non-professional but unaided educational institutionsviz. graduation and postgraduation non-professional colleges or institutes.

69. In such professional unaided institutions, themanagement will have the right to select teachers as per the qualifications andeligibility conditions laid down by the State/university subject to adoption ofa rational procedure of selection. A rational fee structure should be adopted bythe management, which would not be entitled to charge a capitation fee.Appropriate machinery can be devised by the State or university to ensure thatno capitation fee is charged and that there is no profiteering, though areasonable surplus for the furtherance of education is permissible. Conditionsgranting recognition or affiliation can broadly cover academic and educationalmatters including the welfare of students and teachers.

70. It is well established all over the world that thosewho seek professional education must pay for it. The number of seats availablein government and government-aided colleges is very small, compared to thenumber of persons seeking admission to the medical and engineering colleges. Allthose eligible and deserving candidates who could not be accommodated ingovernment colleges would stand deprived of professional education. This void inthe field of medical and technical education has been filled by institutionsthat are established in different places with the aid of donations and theactive part taken by public-minded individuals. The object of establishing aninstitution has thus been to provide technical or professional education to thedeserving candidates, and is not necessarily a commercial venture. In order thatthis intention is meaningful, the institution must be recognized. At the schoollevel, the recognition or affiliation has to be sought from the educationalauthority or the body that conducts the school-leaving examination. It is onlyon the basis of that examination that a school-leaving certificate is granted,which enables a student to seek admission in further courses of study afterschool. A college or a professional educational institution has to getrecognition from the university concerned, which normally requires certainconditions to be fulfilled before recognition. It has been held that conditionsof affiliation or recognition, which pertain to the academic and educationalcharacter of the institution and ensure uniformity, efficiency and excellence ineducational courses are valid, and that they do not violate even the provisionsof Article 30 of the Constitution; but conditions that are laid down forgranting recognition should not be such as may lead to governmental control ofthe administration of the private educational institutions.

In Islamic Academy the majority has (vide para 12)paraphrased the contents of para 68 by dividing it into seven parts. S.B. Sinha,J has read the same para 68 by paraphrasing it in five parts (vide para 172 ofhis opinion). However, we have reproduced para 68 by dividing it into two parts.A reading of the majority judgment in Pai Foundation in its entirety supportsthe conclusion that while the first part of para 68 is law laid down by themajority, the second part is only by way of illustration, tantamounting to justa suggestion or observation, as to how the State may devise a possible mechanismso as to take care of poor and backward sections of the society. The second partof para 68 cannot be read as law laid down by the Bench. It is only anobservation in passing or an illustrative situation which may be reached byconsent or agreement or persuasion.A Comment

It was submitted at the Bar that a flourish of languageor just a flow of thoughts placed on paper when read in isolation gives animpression as if such is the law laid down though in reality even the author ofthe judgment had not intended to do so. A mere observation or a reasoningleading to formulation of ultimate opinion on a disputed question of law cannotbe read as a ratio of the decision. Such submissions forcefully advanced at theBar, have been kept in view by us while reading the several opinions in PaiFoundation and Islamic Academy. In Islamic Academy the petitioners-applicantswere private unaided institutions (minority and non-minority both) and thepetitioners-applicants before us are also private unaided institutions,non-minority and minority (religions and linguistic) both. It was submitted thatthe majority opinion in Islamic Academy has, while embarking upon clarifying thelaw laid down in Pai Foundation, not only reiterated some of the propositions oflaw laid down in Pai Foundation but has also added something more which was notsaid in Pai Foundation and the two have been so intertwined as to becomeinseparable and that has been the reason for a spate of litigation post IslamicAcademy. S.B. Sinha, J., writing his separate opinion in Islamic Academy, hasnot himself chosen to say whether his is a concurring opinion or a dissentingone. However, it was pointed out that S.B. Sinha, J's opinion is analytical,clear and more in consonance with the majority opinion of Pai Foundation. It wasurged that the task was difficult and unwittingly, for the sake of aiming atbrevity, certain omissions have taken place. Illustratively it was pointed outthat vide para 59 of Pai Foundation Kirpal, CJ, has said 

"Merit is usually determined, for admission toprofessional and higher education colleges, by either the marks that the studentobtains at the qualifying examination or school-leaving certificate stagefollowed by the interview, or by a common entrance test conducted by theinstitution, or in the case of professional colleges, by governmentagencies."

(emphasis by us)

In Islamic Academy, vide para 70, sub-para (2)(i)(a),the abovesaid passage has been quoted as under:-

"Admission to professional colleges should be basedon merit by a common entrance test conducted by the government agencies".

(emphasis by us)

It was pointed out that Pai Foundation vide para 59 wasjust making a note of what is 'prevailing as the usual systems' for admittingstudents but Islamic Academy vide para 70 gives an impression that the viewtaken in Pai Foundation is to confine to common entrance test conducted by thegovernment agencies as the only source of admission to professional colleges.

While expressing their appreciation of the taskperformed in Islamic Academy of attempting resolution of several issues raisedpost Pai Foundation, the learned counsel addressing us have tried to put acrossand demonstrate several such anomalies which Islamic Academy read in juxtaposition with Pai Foundation has raised.

Having generally dealt with the several legalpropositions, relevant for our purpose, now we come to specifically dealing withthe questions before us.

Q.1. Unaided educational institutions; appropriation ofquota by State and enforcement of reservation policy

First, we shall deal with minority unaided institutions.

We have in the earlier part of this judgment referred toKerala Education Bill and stated the three categories of minority educationalinstitutions as classified and dealt with therein. The 7-Judge Bench decision inKerala Education Bill still holds the field and has met the approval of 11-JudgeBench in Pai Foundation. We cull out and state what Pai Foundation has to sayabout such category of institutions:-

(i) Minority educational institution, unaided andunrecognized

Pai Foundation is unanimous on the view that the rightto establish and administer an institution, the phrase as employed in Article30(1) of the Constitution, comprises of the following rights: (a) to admitstudents; (b) to set up a reasonable fee structure; (c) to constitute agoverning body; (d) to appoint staff (teaching and non-teaching); and (e) totake action if there is dereliction of duty on the part of any of the employees.(para 50)

A minority educational institution may choose not totake any aid from the State and may also not seek any recognition oraffiliation. It may be imparting such instructions and may have studentslearning such knowledge that do not stand in need of any recognition. Suchinstitutions would be those where instructions are imparted for the sake ofinstructions and learning is only for the sake of learning and acquiringknowledge. Obviously, such institutions would fall in the category of those whowould exercise their right under the protection and privilege conferred byArticle 30(1) "to their hearts content" unhampered by any restrictionsexcepting those which are in national interest based on considerations such aspublic safety, national security and national integrity or are aimed atpreventing exploitation of students or teaching community. Such institutionscannot indulge in any activity which is violative of any law of the land.

They are free to admit all students of their ownminority community if they so choose to do. (para 145, Pai Foundation)

(ii) Minority unaided educational institutions askingfor affiliation or recognition

Affiliation or recognition by the State or the Board orthe University competent to do so, cannot be denied solely on the ground thatthe institution is a minority educational institution. However, the urge or needfor affiliation or recognition brings in the concept of regulation by way oflaying down conditions consistent with the requirement of ensuring merit,excellence of education and preventing mal-administration. For example,provisions can be made indicating the quality of the teachers by prescribing theminimum qualifications that they must possess and the courses of studies andcurricula. The existence of infrastructure sufficient for its growth can bestipulated as a pre-requisite to the grant of recognition or affiliation.However, there cannot be interference in the day-to-day administration. Theessential ingredients of the management, including admission of students,recruiting of staff and the quantum of fee to be charged, cannot be regulated.(para 55, Pai Foundation)

Apart from the generalized position of law that right toadminister does not include right to mal-administer, an additional source ofpower to regulate by enacting condition accompanying affiliation or recognitionexists. Balance has to be struck between the two objectives: (i) that ofensuring the standard of excellence of the institution, and (ii) that ofpreserving the right of the minority to establish and administer its educationalinstitution. Subject to reconciliation of the two objectives, any regulationaccompanying affiliation or recognition must satisfy the triple tests: (i) thetest of resonableness and rationality, (ii) the test that the regulation wouldbe conducive to making the institution an effective vehicle of education for theminority community or other persons who resort to it, and (iii) that there is noin-road on the protection conferred by Article 30(1) of the Constitution, thatis, by framing the regulation the essential character of the institution being aminority educational institution, is not taken away. (para 122, Pai Foundation)

(iii) Minority educational institutions receiving Stateaid

Conditions which can normally be permitted to be imposedon the educational institutions receiving the grant must be related to theproper utilization of the grant and fulfillment of the objectives of the grantwithout diluting the minority status of the educational institution, as held inPai Foundation (See para 143 thereof). As aided institutions are not before usand we are not called upon to deal with their cases, we leave the discussion atthat only.

So far as appropriation of quota by the State andenforcement of its reservation policy is concerned, we do not see much ofdifference between non-minority and minority unaided educational institutions.We find great force in the submission made on behalf of the petitioners that theStates have no power to insist on seat sharing in the unaided privateprofessional educational institutions by fixing a quota of seats between themanagement and the State. The State cannot insist on private educationalinstitutions which receive no aid from the State to implement State's policy onreservation for granting admission on lesser percentage of marks, i.e. on anycriterion except merit.

As per our understanding, neither in the judgment of PaiFoundation nor in the Constitution Bench decision in Kerala Education Bill,which was approved by Pai Foundation, there is anything which would allow theState to regulate or control admissions in the unaided professional educationalinstitutions so as to compel them to give up a share of the available seats tothe candidates chosen by the State, as if it was filling the seats available tobe filled up at its discretion in such private institutions. This would amountto nationalization of seats which has been specifically disapproved in PaiFoundation. Such imposition of quota of State seats or enforcing reservationpolicy of the State on available seats in unaided professional institutions areacts constituting serious encroachment on the right and autonomy of privateprofessional educational institutions. Such appropriation of seats can also notbe held to be a regulatory measure in the interest of minority within themeaning of Article 30(1) or a reasonable restriction within the meaning ofArticle 19(6) of the Constitution. Merely because the resources of the State inproviding professional education are limited, private educational institutions,which intend to provide better professional education, cannot be forced by theState to make admissions available on the basis of reservation policy to lessmeritorious candidate. Unaided institutions, as they are not deriving any aidfrom State funds, can have their own admissions if fair, transparent,non-exploitative and based on merit.

The observations in paragraph 68 of the majority opinionin Pai Foundation, on which the learned counsel for the parties have been muchat variance in their submissions, according to us, are not to be read disjointlyfrom other parts of the main judgment. A few observations contained in certainparagraphs of the judgment in Pai Foundation, if read in isolation, appearconflicting or inconsistent with each other. But if the observations made andthe conclusions derived are read as a whole, the judgment nowhere lays down thatunaided private educational institutions of minorities and non-minorities can beforced to submit to seat sharing and reservation policy of the State. Readingrelevant parts of the judgment on which learned counsel have made comments andcounter comments and reading the whole judgment (in the light of previousjudgments of this Court, which have been approved in Pai Foundation) in ourconsidered opinion, observations in paragraph 68 merely permit unaided privateinstitutions to maintain merit as the criterion of admission by voluntarilyagreeing for seat sharing with the State or adopting selection based on commonentrance test of the State. There are also observations saying that they mayframe their own policy to give free-ships and scholarships to the needy and poorstudents or adopt a policy in line with the reservation policy of the state tocater to the educational needs of weaker and poorer sections of the society.

Nowhere in Pai Foundation, either in the majority or inthe minority opinion, have we found any justification for imposing seat sharingquota by the State on unaided private professional educational institutions andreservation policy of the State or State quota seats or management seats.

We make it clear that the observations in Pai Foundationin paragraph 68 and other paragraphs mentioning fixation of percentage of quotaare to be read and understood as possible consensual arrangements which can bereached between unaided private professional institutions and the State.

In Pai Foundation, it has been very clearly held atseveral places that unaided professional institutions should be given greaterautonomy in determination of admission procedure and fee structure. Stateregulation should be minimal and only with a view to maintain fairness andtransparency in admission procedure and to check exploitation of the students bycharging exorbitant money or capitation fees.

For the aforesaid reasons, we cannot approve of thescheme evolved in Islamic Academy to the extent it allows States to fix quotafor seat sharing between management and the States on the basis of local needsof each State, in the unaided private educational institutions of both minorityand non-minority categories. That part of the judgment in Islamic Academy, inour considered opinion, does not lay down the correct law and runs counter toPai Foundation.

NRI seats

Here itself we are inclined to deal with the question asto seats allocated for Non-Resident Indians ('NRI', for short) or NRI seats. Itis common knowledge that some of the institutions grant admissions to certainnumber of students under such quota by charging a higher amount of fee. In fact,the term 'NRI' in relation to admissions is a misnomer. By and large, we havenoticed in cases after cases coming to this Court, neither the students who getadmissions under this category nor their parents are NRIs. In effect andreality, under this category, less meritorious students, but who can afford tobring more money, get admission. During the course of hearing, it was pointedout that a limited number of such seats should be made available as the moneybrought by such students admitted against NRI quota enables the educationalinstitutions to strengthen its level of education and also to enlarge itseducational activities. It was also pointed out that people of Indian origin,who have migrated to other countries, have a desire to bring back their childrento their own country as they not only get education but also get reunited withIndian cultural ethos by virtue of being here. They also wish the money whichthey would be spending elsewhere on education of their children should ratherreach their own motherland. A limited reservation of such seats, not exceeding15%, in our opinion, may be made available to NRIs depending on the discretionof the management subject to two conditions. First, such seats should beutilized bona fide by the NRIs only and for their children or wards. Secondly,within this quota, the merit should not be given a complete go-by. The amount ofmoney, in whatever form collected from such NRIs, should be utilized forbenefiting students such as from economically weaker sections of the society,whom, on well defined criteria, the educational institution may admit onsubsidized payment of their fee. To prevent misutilisation of such quota or anymalpractice referable to NRI quota seats, suitable legislation or regulationneeds to be framed. So long as the State does not do it, it will be for theCommittees constituted pursuant to Islamic Academy's direction to regulate.

Our answer to the first question is that neither thepolicy of reservation can be enforced by the State nor any quota or percentageof admissions can be carved out to be appropriated by the State in a minority ornon-minority unaided educational institution. Minority institutions are free toadmit students of their own choice including students of non-minority communityas also members of their own community from other States, both to a limitedextent only and not in a manner and to such an extent that their minorityeducational institution status is lost. If they do so, they lose the protectionof Article 30(1).

Q.2. Admission procedure of unaided educationalinstitutions.

So far as the minority unaided institutions areconcerned to admit students being one of the components of "right toestablish and administer an institution", the State cannot interferetherewith. Upto the level of undergraduate education, the minority unaidededucational institutions enjoy total freedom.

However, different considerations would apply forgraduate and post-graduate level of education, as also for technical andprofessional educational institutions. Such education cannot be imparted by anyinstitution unless recognized by or affiliated with any competent authoritycreated by law, such as a University, Board, Central or State Government or thelike. Excellence in education and maintenance of high standards at this levelare a must. To fulfill these objectives, the State can and rather must, innational interest, step in. The education, knowledge and learning at this levelpossessed by individuals collectively constitutes national wealth.

Pai Foundation has already held that the minority statusof educational institutions is to be determined by treating the States as units.Students of that community residing in other States where they are not inminority, shall not be considered to be minority in that particular State andhence their admission would be at par with other non-minority students of thatState. Such admissions will be only to a limited extent that is like a'sprinkling' of such admissions, the term we have used earlier borrowing fromKerala Education Bill, 1957. In minority educational institutions, aided orunaided, admissions shall be at the State level. Transparency and merit shallhave to be assured.

Whether minority or non-minority institutions, there maybe more than one similarly situated institutions imparting education in any onediscipline, in any State. The same aspirant seeking admission to take educationin any one discipline of education shall have to purchase admission forms fromseveral institutions and appear at several admission tests conducted atdifferent places on same or different dates and there may be a clash of dates.If the same candidate is required to appear in several tests, he would besubjected to unnecessary and avoidable expenditure and inconvenience. There isnothing wrong in an entrance test being held for one group of institutionsimparting same or similar education. Such institutions situated in one State orin more than one State may join together and hold a common entrance test or theState may itself or through an agency arrange for holding of such test. Out ofsuch common merit list the successful candidates can be identified and chosenfor being allotted to different institutions depending on the courses of studyoffered, the number of seats, the kind of minority to which the institutionbelongs and other relevant factors. Such an agency conducting Common EntranceTest (CET, for short) must be one enjoying utmost credibility and expertise inthe matter. This would better ensure the fulfillment of twin objects oftransparency and merit. CET is necessary in the interest of achieving the saidobjectives and also for saving the student community from harassment andexploitation. Holding of such common entrance test followed by centralizedcounseling or, in other words, single window system regulating admissions doesnot cause any dent in the right of minority unaided educational institutions toadmit students of their choice. Such choice can be exercised from out of list ofsuccessful candidates prepared at the CET without altering the order of meritinter se of the students so chosen.

Pai Foundation has held that minority unaidedinstitutions can legitimately claim unfettered fundamental right to choose thestudents to be allowed admissions and the procedure therefor subject to itsbeing fair, transparent and non-exploitative. The same principle applies tonon-minority unaided institutions. There may be a single institution imparting aparticular type of education which is not being imparted by any otherinstitution and having its own admission procedure fulfilling the test of beingfair, transparent and non-exploitative. All institutions imparting same orsimilar professional education can join together for holding a common entrancetest satisfying the abovesaid triple tests. The State can also provide aprocedure of holding a common entrance test in the interest of securing fair andmerit-based admissions and preventing mal-administration. The admissionprocedure so adopted by private institution or group of institutions, if itfails to satisfy all or any of the triple tests, indicated hereinabove, can betaken over by the State substituting its own procedure. The second question isanswered accordingly.

It needs to be specifically stated that having regard tothe larger interest and welfare of the student community to promote merit,achieve excellence and curb mal-practices, it would be permissible to regulateadmissions by providing a centralized and single window procedure. Such aprocedure, to a large extent, can secure grant of merit based admissions on atransparent basis. Till regulations are framed, the admission committees canoversee admissions so as to ensure that merit is not the casualty.

Q. 3 Fee, regulation of

To set up a reasonable fee structure is also a componentof "the right to establish and administer an institution" within themeaning of Article 30(1) of the Constitution, as per the law declared in PaiFoundation. Every institution is free to devise its own fee structure subject tothe limitation that there can be no profiteering and no capitation fee can becharged directly or indirectly, or in any form (Paras 56 to 58 and 161 [Answerto Q.5(c)] of Pai Foundation are relevant in this regard).

Capitation Fees Capitation fee cannot be permitted to becharged and no seat can be permitted to be appropriated by payment of capitationfee. 'Profession' has to be distinguished from 'business' or a mere'occupation'. While in business, and to a certain extent in occupation, there isa profit motive, profession is primarily a service to society wherein earning issecondary or incidental. A student who gets a professional degree by payment ofcapitation fee, once qualified as a professional, is likely to aim more atearning rather than serving and that becomes a bane to the society. The chargingof capitation fee by unaided minority and non-minority institutions forprofessional courses is just not permissible. Similarly, profiteering is alsonot permissible. Despite the legal position, this Court cannot shut its eyes tothe hard realities of commercialization of education and evil practices beingadopted by many institutions to earn large amounts for their private or selfishends. If capitation fee and profiteering is to be checked, the method ofadmission has to be regulated so that the admissions are based on merit andtransparency and the students are not exploited. It is permissible to regulateadmission and fee structure for achieving the purpose just stated.

Our answer to Question-3 is that every institution isfree to devise its own fee structure but the same can be regulated in theinterest of preventing profiteering. No capitation fee can be charged.

Q.4.Committees formed pursuant to Islamic Academy

Most vehement attack was laid by all the learned counselappearing for the petitioner-applicants on that part of Islamic Academy whichhas directed the constitution of two committees dealing with admissions and feestructure. Attention of the Court was invited to paras 35,37, 38, 45 and 161(answer to question 9) of Pai Foundation wherein similar scheme framed in UnniKrishnan was specifically struck down. Vide para 45, Chief Justice Kirpal hasclearly ruled that the decision in Unni Krishnan insofar as it framed the schemerelating to the grant of admission and the fixing of the fee, was not correctand to that extent the said decision and the consequent directions given to UGC,AICTE, MCI, the Central and the State Governments etc. are overruled. Vide para161, Pai Foundation upheld Unni Krishnan to the extent to which it holds theright to primary education as a fundamental right, but the scheme was overruled.However, the principle that there should not be capitation fee or profiteeringwas upheld. Leverage was allowed to educational institutions to generatereasonable surplus to meet cost of expansion and augmentation of facilitieswhich would not amount to profiteering. It was submitted that Islamic Academyhas once again restored such Committees which were done away with by PaiFoundation.

The learned senior counsel appearing for differentprivate professional institutions, who have questioned the scheme of permanentCommittees set up in the judgment of Islamic Academy, very fairly do not disputethat even unaided minority institutions can be subjected to regulatory measureswith a view to curb commercialization of education, profiteering in it andexploitation of students. Policing is permissible but not nationalization ortotal take over, submitted Shri Harish Salve, the learned senior counsel.Regulatory measures to ensure fairness and transparency in admission proceduresto be based on merit have not been opposed as objectionable though a mechanismother than formation of Committees in terms of Islamic Academy was insisted onand pressed for. Similarly, it was urged that regulatory measures, to the extentpermissible, may form part of conditions of recognition and affiliation by theuniversity concerned and/or MCI and AICTE for maintaining standards ofexcellence in professional education. Such measures have also not beenquestioned as violative of the educational rights of either minorities or non-minorities.

The two committees for monitoring admission procedureand determining fee structure in the judgment of Islamic Academy, are in ourview, permissive as regulatory measures aimed at protecting the interest of thestudent community as a whole as also the minorities themselves, in maintainingrequired standards of professional education on non-exploitative terms in theirinstitutions. Legal provisions made by the State Legislatures or the schemeevolved by the Court for monitoring admission procedure and fee fixation do notviolate the right of minorities under Article 30(1) or the right of minoritiesand non-minorities under Article 19(1)(g). They are reasonable restrictions inthe interest of minority institutions permissible under Article 30(1) and in theinterest of general public under Article 19(6) of the Constitution.

The suggestion made on behalf of minorities andnon-minorities that the same purpose for which Committees have been set up canbe achieved by post-audit or checks after the institutions have adopted theirown admission procedure and fee structure, is unacceptable for the reasons shownby experience of the educational authorities of various States. Unless theadmission procedure and fixation of fees is regulated and controlled at theinitial stage, the evil of unfair practice of granting admission on availableseats guided by the paying capacity of the candidates would be impossible tocurb.

Non-minority unaided institutions can also be subjectedto similar restrictions which are found reasonable and in the interest ofstudent community. Professional education should be made accessible on thecriterion of merit and on non-exploitative terms to all eligible students on anuniform basis. Minorities or non-minorities, in exercise of their educationalrights in the field of professional education have an obligation and a duty tomaintain requisite standards of professional education by giving admissionsbased on merit and making education equally accessible to eligible studentsthrough a fair and transparent admission procedure and on a reasonablefee-structure.

In our considered view, on the basis of judgment in PaiFoundation and various previous judgments of this Court which have been takeninto consideration in that case, the scheme evolved of setting up the twoCommittees for regulating admissions and determining fee structure by thejudgment in Islamic Academy cannot be faulted either on the ground of allegedinfringement of Article 19(1)(g) in case of unaided professional educationalinstitutions of both categories and Article 19(1)(g) read with Article 30 incase of unaided professional institutions of minorities.

A fortiori, we do not see any impediment to theconstitution of the Committees as a stopgap or adhoc arrangement made inexercise of the power conferred on this Court by Article 142 of the Constitutionuntil a suitable legislation or regulation framed by the State steps in. SuchCommittees cannot be equated with Unni Krishnan Committees which were supposedto be permanent in nature.

However, we would like to sound a note of caution tosuch Committees. The learned counsel appearing for the petitioners have severelycriticised the functioning of some of the Committees so constituted. It waspointed out by citing concrete examples that some of the Committees haveindulged in assuming such powers and performing such functions as were nevergiven or intended to be given to them by Islamic Academy. Certain decisions ofsome of the Committees were subjected to serious criticism by pointing out thatthe fee structure approved by them was abysmally low which has rendered thefunctioning of the institutions almost impossible or made the institutions runinto losses. In some of the institutions, the teachers have left their job andmigrated to other institutions as it was not possible for the management toretain talented and highly qualified teachers against the salary permitted bythe Committees. Retired High Court Judges heading the Committees are assisted byexperts in accounts and management. They also have the benefit of hearing thecontending parties. We expect the Committees, so long as they remain functional,to be more sensitive and to act rationally and reasonably with due regard forrealities. They should refrain from generalizing fee structures and, whereneeded, should go into accounts, schemes, plans and budgets of an individualinstitution for the purpose of finding out what would be an ideal and reasonablefee structure for that institution.

We make it clear that in case of any individualinstitution, if any of the Committees is found to have exceeded its powers byunduly interfering in the administrative and financial matters of the unaidedprivate professional institutions, the decision of the Committee beingquasi-judicial in nature, would always be subject to judicial review.

On Question-4, our conclusion, therefore, is that thejudgment in Islamic Academy, in so far as it evolves the scheme of twoCommittees, one each for admission and fee structure, does not go beyond the lawlaid down in Pai Foundation and earlier decisions of this Court, which have beenapproved in that case. The challenge to setting up of two Committees inaccordance with the decision in Islamic Academy, therefore, fails. However, theobservation by way clarification, contained in the later part of para 19 ofIslamic Academy which speaks of quota and fixation of percentage by StateGovernment is rendered redundant and must go in view of what has been alreadyheld by us in the earlier part of this judgment while dealing with QuestionNo.1.

Epilogue

We have answered the four questions formulated by us inthe manner indicated hereinabove. All other issues which we leave untouched, maybe dealt with by the regular Benches which will take up individual cases fordecision.

We have placed on record in the earlier part of thisjudgment and, yet, before parting we would like to reiterate, that certainrecitals, certain observations and certain findings in Pai Foundation arecontradictory inter se and such conflict can only be resolved by a Bench of acoram larger than Pai Foundation. There are several questions which haveremained unanswered and there are certain questions which have propped up postPai Foundation and Islamic Academy. To the extent the area is left open, theBenches hearing individual cases after this judgment would find the answers.Issues referable to those areas which are already covered by Pai Foundation andyet open to question shall have to be answered by a Bench of a larger coram thanPai Foundation. We leave those issues to be taken care of by posterity.

We are also conscious of the fact that admission processin several professional educational institutions has already commenced. Someadmissions have been made or are in the process of being made in consonance withthe schemes and procedures as approved by Committees and in some cases pursuantto interim directions made by this Court or by the High Courts. This judgmentshall not have the effect of disturbing the admissions already made or withregard to which the process has already commenced. The law, as laid down in thisjudgment, shall be given effect to from the academic year commencing next afterthe pronouncement of this judgment.

It is for the Central Government, or for the StateGovernments, in the absence of a Central legislation, to come out with adetailed well thought out legislation on the subject. Such a legislation is longawaited. States must act towards this direction. Judicial wing of the State iscalled upon to act when the other two wings, the Legislature and the Executive,do not act. Earlier the Union of India and the State Governments act, the betterit would be. The Committees regulating admission procedure and fee structureshall continue to exist, but only as a temporary measure and an inevitablepassing phase until the Central Government or the State Governments are able todevise a suitable mechanism and appoint competent authority in consonance withthe observations made hereinabove. Needless to say, any decision taken by suchCommittees and by the

Central or the State Governments, shall be open tojudicial review in accordance with the settled parameters for the exercise ofsuch jurisdiction.

Before parting, we would like to place on record ourappreciation of the valuable assistance rendered by all the learned seniorcounsel and other counsel appearing in the case and who have addressed us,highlighting very many aspects of the ticklish issues in the field ofprofessional education which have propped up for decision in the light of the11-Judge Bench decision in Pai Foundation and Constitution Bench decision inIslamic Academy. But for their assistance, the issues would have defiedresolution.

All the petitions, Civil Appeals and IAs shall now belisted before appropriate Benches for hearing.