Aug 12, 202166 min read

case law on article 30 part 2

Supreme Court of India

Christian Medical College ... vs Union Of India on 29 April, 2020

Answers to eleven questions Q. 1. *** A. *** Q. 2. *** A. *** Q. 3. (a) *** A. *** Q. 3. (b) To what extent can professional education be treated as a matter coming under minorities’ rights under Article 30?

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

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

A. Admission of students to unaided minority educational institutions viz. schools and undergraduate colleges where the scope for meritbased selection is practically nil, cannot be regulated by the State or university concerned, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards. The right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution, the State Government or the university may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it is more so in the matter of admissions to professional institutions. … Q.5. (a) Whether the minorities’s rights to establish and administer educational institutions of their choice will include the procedure and method of admission and selection of students?

A. A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or selection made should not be tantamount to maladministration. Even an unaided minority institution ought not to ignore the merit of the students for admission, while exercising its right to admit students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence.

Q.5.(b) *** A. *** Q.5. (c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and principals including 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 the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to a university or board have to be complied with, but in the matter of daytoday management, like the appointment of staff, teaching and nonteaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself.

For redressing the grievances of employees of aided and unaided institutions who are subjected to punishment or termination from service, a mechanism will have to be evolved, and in our opinion, appropriate tribunals could be constituted, and till then, such tribunals could be presided over by a judicial officer of the rank of District Judge.

The State or other controlling authorities, however, can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher or a principal of any educational institution.

Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State, without interfering with the overall administrative control of the management over the staff.

Fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee.” (emphasis supplied) In T.M.A. Pai Foundation (supra), the Court held that some system of computing equivalence between different kinds of qualifications like a common entrance test, would not be in violation of the rights conferred. The unaided minority institutions under Article 30(1) of the Constitution of India have the right to admit students, but the merit may be determined by common entrance test and the rights under Article 30(1) is not absolute so as to prevent the Government from making any regulations. The Government cannot be prevented from framing regulations that are in national interest. However, the safeguard is that the Government cannot discriminate any minority institution and put them in a disadvantageous position visàvis to other educational institutions and has to maintain the concept of equality in real sense. The minority institutions must be allowed to do what nonminority institutions are permitted. It is open to State/concerned bodies to frame regulations with respect to affiliation and recognition, to provide a proper academic atmosphere. While answering question no.4, it was held that the Government or the University can lay down the regulatory measures ensuring educational standards and maintaining excellence and more so, in the matter of admission to the professional institutions. It may not interfere with the rights so long as the admissions to the unaided minority institutions are on transparent basis and the merit is adequately taken care of.

28. In Brahmo Samaj Education Society v. State of West Bengal, (2004) 6 SCC 224, the Court opined that State can impose such conditions as are necessary for the proper maintenance of standards of education and to check maladministration. The decision of T.M.A.

Pai Foundation (supra) was followed in which it was observed that the State could regulate the method of selection and appointment of teachers after prescribing requisite qualifications for the same. In Brahmo Samaj Education Society (supra), it was further opined that the State could very well provide the basic qualification for teachers.

The equal standard of teachers has been maintained by the NET / SLET.

29. This Court in P.A. Inamdar (supra) also considered the difference between professional and nonprofessional educational institutions, thus:

“104. Article 30(1) speaks of “educational institutions” generally and so does Article 29(2). These articles do not draw any distinction between an educational institution dispensing theological education or professional or nonprofessional education. However, the terrain of thought as has developed through successive judicial pronouncements culminating in Pai Foundation, (2002) 8 SCC 481, is that looking at the concept of education, in the backdrop of the constitutional provisions, professional educational institutions constitute a class by themselves as distinguished from educational institutions imparting nonprofessional education. It is not necessary for us to go deep into this aspect of the issue posed before us inasmuch as Pai Foundation, (2002) 8 SCC 481, has clarified that merit and excellence assume special significance in the context of professional studies. Though merit and excellence are not anathema to nonprofessional education, yet at that level and due to the nature of education which is more general, the need for merit and excellence therein is not of the degree as is called for in the context of professional education.

105. Dealing with unaided minority educational institutions, Pai Foundation, (2002) 8 SCC 481, holds that Article 30 does not come in the way of the State stepping in for the purpose of securing transparency and recognition of merit in the matter of admissions. Regulatory measures for ensuring educational standards and maintaining excellence thereof are no anathema to the protection conferred by Article 30(1). However, a distinction is to be drawn between unaided minority educational institution of the level of schools and undergraduate colleges on the one side and institutions of higher education, in particular, those imparting professional education, on the other side. In the former, the scope for meritbased selection is practically nil and hence may not call for regulation. But in the case of the latter, transparency and merit have to be unavoidably taken care of and cannot be compromised. There could be regulatory measures for ensuring educational standards and maintaining excellence thereof. (See para 161, answer to Question 4, in Pai Foundation, (2002) 8 SCC 481.) The source of this distinction between two types of educational institutions referred to hereinabove is to be found in the principle that right to administer does not include a right to maladminister.

106. S.B. Sinha, J. has, in his separate opinion in Islamic Academy, (2003) 6 SCC 697, described (in para 199) the situation as a pyramidlike situation and suggested the right of minority to be read along with the fundamental duty. Higher the level of education, lesser are the seats and higher weighs the consideration for merit. It will, necessarily, call for more State intervention and lesser say for the minority.

107. Educational institutions imparting higher education i.e. graduate level and above and in particular specialised education such as technical or professional, constitute a separate class. While embarking upon resolving issues of constitutional significance, where the letter of the Constitution is not clear, we have to keep in view the spirit of the Constitution, as spelt out by its entire scheme. Education aimed at imparting professional or technical qualifications stands on a different footing from other educational instruction. Apart from other provisions, Article 19(6) is a clear indicator and so are clauses (h) and (j) of Article 51A. Education up to the undergraduate level aims at imparting knowledge just to enrich the mind and shape the personality of a student. Graduatelevel study is a doorway to admissions in educational institutions imparting professional or technical or other higher education and, therefore, at that level, the considerations akin to those relevant for professional or technical educational institutions step in and become relevant. This is in the national interest and strengthening the national wealth, education included. Education up to the undergraduate level on the one hand and education at the graduate and postgraduate levels and in professional and technical institutions on the other are to be treated on different levels inviting not identical considerations, is a proposition not open to any more debate after Pai Foundation, (2002) 8 SCC 481. A number of legislations occupying the field of education whose constitutional validity has been tested and accepted suggest that while recognition or affiliation may not be a must for education up to undergraduate level or, even if required, may be granted as a matter of routine, recognition or affiliation is a must and subject to rigorous scrutiny when it comes to educational institutions awarding degrees, graduate or postgraduate, postgraduate diplomas and degrees in technical or professional disciplines. Some such legislations are found referred in paras 81 and 82 of S.B. Sinha, J.’s opinion in Islamic Academy, (2003) 6 SCC 697.” Dealing with unaided minority educational institutions in T.M.A.

Pai Foundation (supra), the court observed that Article 30 does not come in the way of the State stepping in to secure transparency and recognition of merit in the matter of admissions. Regulatory measures for ensuring educational standards can be framed. In the case of professional education, transparency and merit have to be unavoidably taken care of and cannot be compromised.

30. In Sindhi Education Society and Anr. v. Chief Secretary, Government of NCT of Delhi and Ors., (2010) 8 SCC 49, the Court opined that measures to regulate the courses of study, qualifications, and appointment of teachers, the conditions of employment are germane to the affiliation of minority institutions. The Court held thus:

“47. Still another sevenJudge Bench of this Court, in Ahmedabad St. Xavier’s College Society, (1974) 1 SCC 717, was primarily concerned with the scope of Articles 29 and 30 of the Constitution, relating to the rights of minorities to impart general education and applicability of the concept of affiliation to such institutions. Of course, the Court held that there was no fundamental right of a minority institution to get affiliation from a university. When a minority institution applies to a university to be affiliated, it expresses its choice to participate in the system of general education and courses of instructions prescribed by that university, and it agrees to follow the uniform courses of study. Therefore, measures which will regulate the courses of study, the qualifications and appointment of teachers, the conditions of employment of teachers, the health, hygiene of students and the other facilities are germane to affiliation of minority institutions.

55. The respondents have placed reliance upon the law stated by the Bench that any regulation framed in the national interest must necessarily apply to all educational institutions, whether run by majority or the minority. Such a limitation must be read into Article 30. The rule under Article 30(1) cannot be such as to override the national interest or to prevent the Government from framing regulations in that behalf. It is, of course, true that government regulations cannot destroy the minority character of the institution or make a right to establish and administer a mere illusion; but the right under Article 30 is not so absolute as to be above the law.

56. The appellant also seeks to derive benefit from the view that the courts have also held that the right to administer is not absolute and is subject to reasonable regulations for the benefit of the institutions as the vehicle of education consistent with the national interest. Such general laws of the land would also be applicable to the minority institutions as well. There is no reason why regulations or conditions concerning generally the welfare of the students and teachers should not be made applicable in order to provide a proper academic atmosphere. As such, the provisions do not, in any way, interfere with the right of administration or management under Article 30(1). Any law, rule or regulation, that would put the educational institutions run by the minorities at a disadvantage, when compared to the institutions run by the others, will have to be struck down. At the same time, there may not be any reverse discrimination.

92. The right under clause (1) of Article 30 is not absolute but subject to reasonable restrictions which, inter alia, may be framed having regard to the public interest and national interest of the country. Regulation can also be framed to prevent maladministration as well as for laying down standards of education, teaching, maintenance of discipline, public order, health, morality, etc. It is also well settled that a minority institution does not cease to be so, the moment grantinaid is received by the institution. An aided minority educational institution, therefore, would be entitled to have the right of admission of students belonging to the minority group and, at the same time, would be required to admit a reasonable extent of nonminority students, to the extent, that the right in Article 30(1) is not substantially impaired and further, the citizen’s right under Article 29(2) is not infringed.” In Chandana Das (Malakar) v. State of West Bengal and Ors., (2015) 12 SCC 140, the Court observed that the Government can frame the conditions of eligibility for appointment of such teachers, thus:

“21. It is unnecessary to multiply decisions on the subject for the legal position is well settled. Linguistic institution and religious are entitled to establish and administer their institutions. Such right of administration includes the right of appointing teachers of its choice but does not denude the State of its power to frame regulations that may prescribe the conditions of eligibility for appointment of such teachers. The regulations can also prescribe measures to ensure that the institution is run efficiently for the right to administer does not include the right to maladministration. While grantinaid is not included in the guarantee contained in the Constitution to linguistic and religious minorities for establishing and running their educational institutions, such grant cannot be denied to such institutions only because the institutions are established by linguistic or religious minority. Grant of aid cannot, however, be made subservient to conditions which deprive the institution of their substantive right of administering such institutions. Suffice it to say that once Respondent 4 Institution is held to be a minority institution entitled to the protection of Articles 26 and 30 of the Constitution of India the right to appoint teachers of its choice who satisfy the conditions of eligibility prescribed for such appointments under the relevant rules is implicit in their rights to administer such institutions. Such rights cannot then be diluted by the State or its functionaries insisting that the appointment should be made only with the approval of the Director or by following the mechanism generally prescribed for institutions that do not enjoy the minority status.”

31. In Modern Dental College and Research Centre (supra), the Constitution Bench of this Court considered the provisions of Articles 19(1)(g), 19(6), 26 and 30 in relation to the right to freedom of occupation of private unaided minority and nonminority educational institutions. This Court observed that the activity of education is neither trade nor profession, i.e., commercialisation and profiteering cannot be permitted. It is open to impose reasonable restrictions in the interest of general public. The education cannot be allowed to be a purely economic activity; it is a welfare activity aimed at achieving more egalitarian and prosperous society to bring out social transformation and upliftment of the nation.

(a) This Court further opined that private unaided minority and nonminority institutions have a right to occupation under Article 19(1), the said right is not absolute and subject to reasonable restriction in larger public interest of students community to promote merit, achieve excellence and curb malpractices by holding common entrance test for admission and fee structure can undoubtedly be regulated in such institutions.

(b) This Court in Modern Dental College and Research Centre (supra) also held that unless the admission procedure and fixation of fees are regulated and controlled at the initial stage, the evil of unfair practice of granting admission on available seats guided by the paying capacity of the candidates would be impossible to curb. The Court also noted the menace of the fee prevailing in the various educational professional institutions and in the context of Articles 19(1)(g), 19(6), 30, 41 and 47, and considering the Schedule VII, Entry 25 of List III and Entry 6366 of List I, this Court held that concerning "professional unaided minority" and "nonminority institutions", common entrance test has to be conducted by the State and regulation of the fee structure by it is permissible. The Court took note of the largescale malpractices, exploitation of students, profiteering, and commercialisation and entrance examination held by various institutions failing the triple test of having fair, transparent, and nonexploitative process. The Court held that reasonable restriction can be imposed to regulate admission and fee structure.

The Court also observed about statutory functioning of the healthcare system in the country and the poor functioning of the MCI.

(c) The Court further considered the criteria of proportionality and emphasised for proper balance between the two facets viz. the rights and limitations imposed upon it by a statute. The concept of proportionality is an appropriate criterion. The law imposing restrictions will be treated as proportional if it is meant to achieve a proper purpose. If the measures taken to achieve such a goal are rationally connected to the object, such steps are necessary. The Court considered the concept of proportionality thus:

“57. It is well settled that the right under Article 19(1)(g) is not absolute in terms but is subject to reasonable restrictions under clause (6). Reasonableness has to be determined having regard to the nature of right alleged to be infringed, purpose of the restriction, extent of restriction and other relevant factors. In applying these factors, one cannot lose sight of the directive principles of State policy. The Court has to try to strike a just balance between the fundamental rights and the larger interest of the society. The Court interferes with a statute if it clearly violates the fundamental rights. The Court proceeds on the footing that the legislature understands the needs of the people. The Constitution is primarily for the common man. Larger interest and welfare of student community to promote merit, achieve excellence and curb malpractices, fee and admissions can certainly be regulated.

58. Let us carry out this discussion in some more detail as this is the central issue raised by the appellants.

Doctrine of proportionality explained and applied

59. Undoubtedly, the right to establish and manage the educational institutions is a fundamental right recognised under Article 19(1)(g) of the Act. It also cannot be denied that this right is not “absolute” and is subject to limitations i.e. “reasonable restrictions” that can be imposed by law on the exercise of the rights that are conferred under clause (1) of Article 19. Those restrictions, however, have to be reasonable. Further, such restrictions should be “in the interest of general public”, which conditions are stipulated in clause (6) of Article 19, as under:

“19. (6) Nothing in subclause (g) of the said clause shall affect the operation of any existing law insofar as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said subclause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law insofar as it relates to, or prevent the State from making any law relating to—

(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or

(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.”

60. Another significant feature which can be noticed from the reading of the aforesaid clause is that the State is empowered to make any law relating to the professional or technical qualifications necessary for practising any profession or carrying on any occupation or trade or business. Thus, while examining as to whether the impugned provisions of the statute and rules amount to reasonable restrictions and are brought out in the interest of the general public, the exercise that is required to be undertaken is the balancing of fundamental right to carry on occupation on the one hand and the restrictions imposed on the other hand. This is what is known as “doctrine of proportionality”. Jurisprudentially, “proportionality” can be defined as the set of rules determining the necessary and sufficient conditions for limitation of a constitutionally protected right by a law to be constitutionally permissible. According to Aharon Barak (former Chief Justice, Supreme Court of Israel), there are four subcomponents of proportionality which need to be satisfied [Aharon Barak, Proportionality: Constitutional Rights and Their Limitation (Cambridge University Press 2012)], a limitation of a constitutional right will be constitutionally permissible if:

(i) it is designated for a proper purpose;

(ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose;

(iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally

(iv) there needs to be a proper relation (“proportionality stricto sensu” or “balancing”) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.

61. Modern theory of constitutional rights draws a fundamental distinction between the scope of the constitutional rights, and the extent of its protection. Insofar as the scope of constitutional rights is concerned, it marks the outer boundaries of the said rights and defines its contents. The extent of its protection prescribes the limitations on the exercises of the rights within its scope. In that sense, it defines the justification for limitations that can be imposed on such a right.

62. It is now almost accepted that there are no absolute constitutional rights and all such rights are related. As per the analysis of Aharon Barak, two key elements in developing the modern constitutional theory of recognising positive constitutional rights along with its limitations are the notions of democracy and the rule of law. Thus, the requirement of proportional limitations of constitutional rights by a sub constitutional law i.e. the statute, is derived from an interpretation of the notion of democracy itself. Insofar as the Indian Constitution is concerned, democracy is treated as the basic feature of the Constitution and is specifically accorded a constitutional status that is recognised in the Preamble of the Constitution itself. It is also unerringly accepted that this notion of democracy includes human rights which is the cornerstone of Indian democracy. Once we accept the aforesaid theory (and there cannot be any denial thereof), as a fortiori, it has also to be accepted that democracy is based on a balance between constitutional rights and the public interests. In fact, such a provision in Article 19 itself on the one hand guarantees some certain freedoms in clause (1) of Article 19 and at the same time empowers the State to impose reasonable restrictions on those freedoms in public interest. This notion accepts the modern constitutional theory that the constitutional rights are related. This relativity means that a constitutional licence to limit those rights is granted where such a limitation will be justified to protect public interest or the rights of others. This phenomenon—of both the right and its limitation in the Constitution—exemplifies the inherent tension between democracy’s two fundamental elements. On the one hand is the right’s element, which constitutes a fundamental component of substantive democracy; on the other hand is the people element, limiting those very rights through their representatives. These two constitute a fundamental component of the notion of democracy, though this time in its formal aspect. How can this tension be resolved? The answer is that this tension is not resolved by eliminating the “losing” facet from the Constitution. Rather, the tension is resolved by way of a proper balancing of the competing principles. This is one of the expressions of the multifaceted nature of democracy. Indeed, the inherent tension between democracy’s different facets is a “constructive tension”. It enables each facet to develop while harmoniously coexisting with the others. The best way to achieve this peaceful coexistence is through balancing between the competing interests. Such balancing enables each facet to develop alongside the other facets, not in their place. This tension between the two fundamental aspects—rights on the one hand and its limitation on the other hand—is to be resolved by balancing the two so that they harmoniously coexist with each other. This balancing is to be done keeping in mind the relative social values of each competitive aspects when considered in proper context.

63. In this direction, the next question that arises is as to what criteria is to be adopted for a proper balance between the two facets viz. the rights and limitations imposed upon it by a statute. Here comes the concept of “proportionality”, which is a proper criterion. To put it pithily, when a law limits a constitutional right, such a limitation is constitutional if it is proportional. The law imposing restrictions will be treated as proportional if it is meant to achieve a proper purpose, and if the measures taken to achieve such a purpose are rationally connected to the purpose, and such measures are necessary. This essence of doctrine of proportionality is beautifully captured by Dickson, C.J. of Canada in R. v. Oakes, (1986) 1 SCR 103 (Can SC) in the following words (at p. 138): “To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures, responsible for a limit on a Charter right or freedom are designed to serve, must be “of” sufficient importance to warrant overriding a constitutional protected right or freedom … Second … the party invoking Section 1 must show that the means chosen are reasonable and demonstrably justified. This involves “a form of proportionality test…” Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be … rationally connected to the objective. Second, the means … should impair “as little as possible” the right or freedom in question … Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”. The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society.”

64. The exercise which, therefore, is to be taken is to find out as to whether the limitation of constitutional rights is for a purpose that is reasonable and necessary in a democratic society and such an exercise involves the weighing up of competitive values, and ultimately an assessment based on proportionality i.e. balancing of different interests.”

(d) In Modern Dental College and Research Centre (supra), the Court, while dealing with reasonable restriction on rights under Article 19 observed:

“65. We may unhesitatingly remark that this doctrine of proportionality, explained hereinabove in brief, is enshrined in Article 19 itself when we read clause (1) along with clause (6) thereof. While defining as to what constitutes a reasonable restriction, this Court in a plethora of judgments has held that the expression “reasonable restriction” seeks to strike a balance between the freedom guaranteed by any of the sub clauses of clause (1) of Article 19 and the social control permitted by any of the clauses (2) to (6). It is held that the expression “reasonable” connotes that the limitation imposed on a person in the enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the interests of public. Further, in order to be reasonable, the restriction must have a reasonable relation to the object which the legislation seeks to achieve, and must not go in excess of that object (see P.P. Enterprises v. Union of India, (1982) 2 SCC

33). At the same time, reasonableness of a restriction has to be determined in an objective manner and from the standpoint of the interests of the general public and not from the point of view of the persons upon whom the restrictions are imposed or upon abstract considerations (see Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731). In M.R.F. Ltd. v. State of Kerala, (1998) 8 SCC 227, this Court held that in examining the reasonableness of a statutory provision one has to keep in mind the following factors:

(1) The directive principles of State policy. (2) Restrictions must not be arbitrary or of an excessive nature so as to go beyond the requirement of the interest of the general public.

(3) In order to judge the reasonableness of the restrictions, no abstract or general pattern or a fixed principle can be laid down so as to be of universal application and the same will vary from case to case as also with regard to changing conditions, values of human life, social philosophy of the Constitution, prevailing conditions and the surrounding circumstances.

(4) A just balance has to be struck between the restrictions imposed and the social control envisaged by Article 19(6).

(5) Prevailing social values as also social needs which are intended to be satisfied by the restrictions.

(6) There must be a direct and proximate nexus or reasonable connection between the restrictions imposed and the object sought to be achieved. If there is a direct nexus between the restrictions, and the object of the Act, then a strong presumption in favour of the constitutionality of the Act will naturally arise.”

(e) Concerning necessity of regulatory framework, the Court opined:

“85. No doubt, we have entered into an era of liberalisation of the economy, famously termed as “globalisation” as well. In such an economy, private players are undoubtedly given much more freedom in economic activities, as the recognition has drawn to the realities that the economic activities, including profession, business, occupation, etc. are not normal forte of the State and the State should have minimal role therein. It is for this reason, many sectors which were hitherto State monopolies, like telecom, power, insurance, civil aviation, etc. have now opened up for private enterprise. Even in the field of education the State/Government was playing a dominant role inasmuch as it was thought desirable that in a welfare State it is the fundamental duty, as a component of directive principles, to impart education to the masses and commoners as well as weaker sections of the society, at affordable rates. It was almost treated as solemn duty of the Government to establish adequate number of educational institutions at all levels i.e. from primary level to higher education and in all fields including technical, scientific and professional, to cater to the varied sections of the society, particularly, when one third of the population of the country is povertystricken with large percentage as illiterate. With liberalisation, the Government has encouraged establishments of privately managed institutions. It is done with the hope that the private sector will play vital role in the field of education with philanthropic approach/ideals in mind as this activity is not to be taken for the purpose of profiteering, but more as a societal welfare.

86. It is, therefore, to be borne in mind that the occupation of education cannot be treated on a par with other economic activities. In this field, the State cannot remain a mute spectator and has to necessarily step in in order to prevent exploitation, privatisation and commercialisation by the private sector. It would be pertinent to mention that even in respect of those economic activities which are undertaken by the private sector essentially with the objective of profit making (and there is nothing bad about it), while throwing open such kind of business activities in the hands of private sector, the State has introduced regulatory regime as well by providing regulations under the relevant statutes.

89. With the advent of globalisation and liberalisation, though the market economy is restored, at the same time, it is also felt that market economies should not exist in pure form. Some regulation of the various industries is required rather than allowing selfregulation by market forces. This intervention through regulatory bodies, particularly in pricing, is considered necessary for the welfare of the society and the economists point out that such regulatory economy does not rob the character of a market economy which still remains a market economy. Justification for regulatory bodies even in such industries managed by private sector lies in the welfare of people. Regulatory measures are felt necessary to promote basic well being for individuals in need. It is because of this reason that we find regulatory bodies in all vital industries like, insurance, electricity and power, telecommunications, etc.

90. Thus, it is felt that in any welfare economy, even for private industries, there is a need for regulatory body and such a regulatory framework for education sector becomes all the more necessary. It would be more so when, unlike other industries, commercialisation of education is not permitted as mandated by the Constitution of India, backed by various judgments of this Court to the effect that profiteering in the education is to be avoided.”

(f) The Court held that the regulatory mechanism for centralised examination is legal and constitutional and does not infringe on the fundamental rights of the minority or nonminority to establish and administer educational institutions. It observed:

Larger interest and welfare of student community to promote merit, achieve excellence and curb malpractices, fee and admissions can certainly be regulated.

“97. The very object of setting up institutions for the State is a welfare function, for the purpose of excelling in educational standards. On the other hand, the primary motivation for private parties is profit motive or philanthropy. When the primary motivation for institutions is profit motive, it is natural that many means to achieve the same shall be adopted by the private institutions which leads to a large degree of secrecy and corruption. As such, the mechanism of regulations as envisaged under the impugned laws is legal, constitutional, fair, transparent and uphold the primary criteria of merit. The same does not infringe on the fundamental rights of either the minorities or the non minorities to establish and administer educational institutions and must as such be upheld as valid.”

(g) The Court also took note of prevailing situation of corruption in the field of education and commercialisation of education thus:

“68. We are of the view that the larger public interest warrants such a measure. Having regard to the malpractices which are noticed in the CET conducted by such private institutions themselves, for which plethora of material is produced, it is, undoubtedly, in the larger interest and welfare of the student community to promote merit, add excellence and curb malpractices. The extent of restriction has to be viewed keeping in view all these factors and, therefore, we feel that the impugned provisions which may amount to “restrictions” on the right of the appellants to carry on their “occupation”, are clearly “reasonable” and satisfied the test of proportionality.”

96. As is evident from the facts mentioned by the State of Madhya Pradesh in its reply filed in IA No. 83 of 2015, the Association of Private Colleges has failed to hold their CETs in a fair, transparent and rational manner. The accountability and transparency in State actions is much higher than in private actions. It is needless to say that the incidents of corruption in the State machinery were brought in the public eye immediately and have been addressed expeditiously. The same could never have been done in case of private actions. Even on a keel of comparative efficiency, it is more than evident that the State process is far more transparent and fair than one that is devised by the private colleges which have no mechanism of any checks and balances. The State agencies are subject to the Right to Information Act, audit, State Legislature, anticorruption agencies, Lokayukta, etc.

172. Maintenance and improvement of public health and to provide health care and medical services is the constitutional obligation of the State. To discharge this constitutional obligation, the State must have the doctors with professional excellence and commitment who are ready to give medical advice and services to the public at large. The State can satisfactorily discharge its constitutional obligation only when the aspiring students enter into the profession based on merit. None of these lofty ideals can be achieved without having good and committed medical professionals.

190. For the foregoing discussion, I hold that the State has the legislative competence to enact the impugned legislation—the 2007 Act to hold common entrance test for admission to professional educational institutions and to determine the fee and the High Court has rightly upheld the validity of the impugned legislation. Regulations sought to be imposed by the impugned legislation on admission by common entrance test conducted by the State and determination of fee are in compliance of the directions and observations in T.M.A. Pai, (2002) 8 SCC 481, Islamic Academy of Education, (2003) 6 SCC 697 and P.A. Inamdar, (2005) 6 SCC 537. Regulations on admission process are necessary in the larger public interest and welfare of the student community to ensure fairness and transparency in the admission and to promote merit and excellence. Regulation on fixation of fee is to protect the rights of the students in having access to higher education without being subjected to exploitation in the form of profiteering. With the above reasonings, I concur with the majority view in upholding the validity of the impugned legislation and affirm the wellmerited decision of the High Court.”

(h) The Court in Modern Dental College and Research Centre (supra) while considering the decision in T.M.A. Pai Foundation (supra) opined that Court did not give complete freedom to admit the students and also as to fixation of fee. Admission has to be based on merit, particularly in professional educational institutions. This Court observed thus:

“34. In the modern age, therefore, particularly after the policy of liberalisation adopted by the State, educational institutions by private bodies are allowed to be established. There is a paradigm shift over from the era of complete government control over education (like other economic and commercial activities) to a situation where private players are allowed to mushroom. But at the same time, regulatory mechanism is provided thereby ensuring that such private institutions work within such regulatory regime. When it comes to education, it is expected that unaided private institutions provide quality education and at the same time they are given “freedom in joints” with minimal Government interference, except what comes under regulatory regime. Though education is now treated as an “occupation” and, thus, has become a fundamental right guaranteed under Article 19(1)(g) of the Constitution, at the same time shackles are put insofar as this particular occupation is concerned which is termed as “noble”. Therefore, profiteering and commercialisation are not permitted and no capitation fee can be charged. The admission of students has to be on merit and not at the whims and fancies of the educational institutions. Merit can be tested by adopting some methodology and few such methods are suggested in T.M.A. Pai Foundation, (2002) 8 SCC 481, which includes holding of CET. It is to be ensured that this admission process meets the triple test of transparency, fairness and nonexploitativeness.

37. Insofar as the first part of the question is concerned, it does not pose any problem and the answer goes in favour of the appellants. We may recapitulate here that Article 26 of the Constitution gives freedom to every religious denomination or any section thereof by conferring certain rights which include right to establish and maintain institutions for religious and charitable purposes. Thus, insofar as religious denominations or any section thereof are concerned, they were given right to establish and maintain institutions for religious and charitable purposes making it a fundamental right. Likewise, Article 30 confers upon minorities fundamental right to establish and administer educational institutions. Insofar as Article 26 is concerned, it comes under the caption “Right to Freedom of Religion”. As far as Article 30 is concerned, it is under the heading “Cultural and Educational Rights”. Thus, rights of the minorities to establish and administer educational institutions were always recognised as fundamental rights. Further, the right of private unaided professional institutions to establish and manage educational institutions was not clearly recognised as a fundamental right covered under Article 19(1)

(g) and categorically rejected by the Constitution Bench of this Court comprising of five Judges in Unni Krishnan, (1993) 1 SCC 645. It was held in para 198 of the judgment that: (SCC p. 752) “198. [w]e are, therefore, of the opinion, adopting the line of reasoning in State of Bombay v. R.M.D. Chamarbaugwala, AIR 1957 SC 699, that imparting education cannot be treated as a trade or business. Education cannot be allowed to be converted into commerce nor can petitioners seek to obtain the said result by relying upon the wider meaning of “occupation”.”

38. In Unni Krishnan case, (1993) 1 SCC 645, this Court also rejected the argument that the said activity could be classified as a “profession”. However, the right of professional institutions to establish and manage educational institutions was finally regarded as an “occupation” befitting the recognition of this right as a fundamental right under Article 19(1)(g) in T.M.A. Pai Foundation, (2002) 8 SCC 481, in the following words: (SCC p. 535, para 25) “25. The establishment and running of an educational institution where a large number of persons are employed as teachers or administrative staff, and an activity is carried on that results in the imparting of knowledge to the students, must necessarily be regarded as an occupation, even if there is no element of profit generation. It is difficult to comprehend that education, per se, will not fall under any of the four expressions in Article 19(1)(g). “Occupation” would be an activity of a person undertaken as a means of livelihood or a mission in life. The abovequoted observations in Sodan Singh case, (1989) 4 SCC 155, correctly interpret the expression “occupation” in Article 19(1)(g).”

40. It becomes necessary to point out that while treating the managing of educational institution as an “occupation”, the Court was categorical that this activity could not be treated as “business” or “profession”. This right to carry on the occupation that education is, the same is not put on a par with other occupations or business activities or even other professions. It is a category apart which was carved out by this Court in T.M.A. Pai Foundation, (2002) 8 SCC 481. There was a specific purpose for not doing so. Education is treated as a noble “occupation” on “no profit no loss” basis. Thus, those who establish and are managing the educational institutions are not expected to indulge in profiteering or commercialising this noble activity. Keeping this objective in mind, the Court did not give complete freedom to the educational institutions in respect of right to admit the students and also with regard to fixation of fee. As far as admission of students is concerned, the Court was categorical that such admissions have to be on the basis of merit when it comes to higher education, particularly in professional institutions.”

(i) In Modern Dental College and Research Centre (supra), the Court considered decision in T.M.A. Pai Foundation (supra), and observed that Government is permitted to frame regulations for unaided private professional educational institutions, thus:

“42. In order to see that merit is adjudged suitably and appropriately, the Court candidly laid down that the procedure for admission should be so devised which satisfies the triple test of being fair, transparent and nonexploitative. The next question was as to how the aforesaid objective could be achieved? For determining such merit, the Court showed the path in para 59 by observing that such merit should be determined either by the marks that students obtained at qualifying examination or at CET conducted by the institutions or in the case of professional colleges, by government agencies. Para 59 suggesting these modes reads as under: (T.M.A. Pai Foundation case, (2002) 8 SCC 481, SCC p. 546) “59. Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school leaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by government agencies.” This paragraph very specifically authorises CET to be conducted by government agencies in the case of professional colleges.

43. In order to ensure that the said CET is fair, transparent and meritbased, T.M.A. Pai Foundation, (2002) 8 SCC 481, also permitted the Government to frame regulations for unaided private professional educational institutions. Paras 67 and 68 which permit framing of such regulations are reproduced below: (SCC p. 549) “67. We now come to the regulations that can be framed relating to private unaided professional institutions.

68. It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forego or discard the principle of merit. It would, therefore, be permissible for the university or the Government, at the time of granting recognition, to require a private unaided institution to provide for meritbased selection while, at the same time, giving the management sufficient discretion in admitting students. This can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the management out of those students who have passed the common entrance test held by itself or by the State/university and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counselling by the State agency. This will incidentally take care of poorer and backward sections of the society. The prescription of percentage for this purpose has to be done by the Government according to the local needs and different percentages can be fixed for minority unaided and non minority unaided and professional colleges. The same principles may be applied to other nonprofessional but unaided educational institutions viz. graduation and postgraduation nonprofessional colleges or institutes.”

44. A plea was raised by the appellants that by exercising the power to frame regulations, the State could not usurp the very function of conducting this admission test by the educational institutions. It was argued that it only meant that such a CET is to be conducted by the educational institutions themselves and the Government could only frame the regulations to regulate such admission tests to be conducted by the educational institutions and could not take away the function of holding CET.

45. This argument has to be rejected in view of the unambiguous and categorical interpretation given by the Supreme Court in P.A. Inamdar, (2005) 6 SCC 537, with respect to certain observations, particularly in para 68 in T.M.A. Pai Foundation, (2002) 8 SCC 481. In this behalf, we would like to recapitulate that in T.M.A. Pai Foundation, (2002) 8 SCC 481, a Bench of eleven Judges dealt with the issues of scope of right to set up educational institutions by private aided or unaided, minority or nonminority institutions and the extent of government regulation of the said right. It was held that the right to establish and administer an institution included the right to admit students and to set up a reasonable fee structure. But the said right could be regulated to ensure maintenance of proper academic standards, atmosphere and infrastructure. Fixing of rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions. However, occupation of education was not business but profession involving charitable activity. The State can forbid charging of capitation fee and profiteering. The object of setting up educational institution is not to make profit. There could, however, be a reasonable revenue surplus for development of education. For admission, merit must play an important role. The State or the University could require private unaided institution to provide for meritbased selection while giving sufficient discretion in admitting students. Certain percentage of seats could be reserved for admission by management out of students who have passed CET held by the institution or by the State/University. Interpretation of certain observations in para 68 of the judgment in T.M.A. Pai Foundation, (2002) 8 SCC 481, has been a matter of debate to which we will advert to in detail hereinafter.

48. The matter was then considered by a larger Bench of seven Judges in P.A. Inamdar, (2005) 6 SCC 537. It was held that the two committees for monitoring admission procedure and determining fee structure as per the judgment in Islamic Academy of Education, (2003) 6 SCC 697, were permissible as regulatory measures aimed at protecting the student community as a whole as also the minority themselves in maintaining required standards of professional education on nonexploitative terms. This did not violate Article 30(1) or Article 19(1)(g). It was observed that: (P.A. Inamdar case, (2005) 6 SCC 537, SCC p. 607, para 145) “145. … Unless the admission procedure and fixation of fees is regulated and controlled at the initial stage, the evil of unfair practice of granting admission on available seats guided by the paying capacity of the candidates would be impossible to curb.” (emphasis supplied) On this ground, suggestion of the institutions to achieve the purpose for which committees had been set up by postaudit checks after the institutions adopted their own admission procedure and fee structure was rejected. The committees were, thus, allowed to continue for regulating the admissions and the fee structure until a suitable legislation or regulations were framed by the States. It was left to the Central Government and the State Governments to come out with a detailed wellthought out legislation setting up a suitable mechanism for regulating admission procedure and fee structure. Para 68 in T.M.A. Pai Foundation case, (2002) 8 SCC 481, was explained by stating that observations permitting the management to reserve certain seats were meant for poorer and backward sections as per local needs. It did not mean to ignore the merit. It was also held that CET could be held, otherwise, merit becomes a casualty. There is, thus, no bar to CET being held by a State agency when the law so provides.”

(j) The Court held that entrance examination is a regulatory measure and does not infringe on the rights of the institutions. It opined:

“49. Thus, the contention raised on behalf of the appellants that the private medical colleges had absolute right to make admissions or to fix fee is not consistent with the earlier decisions of this Court. Neither merit could be compromised in admissions to professional institutions nor capitation fee could be permitted. To achieve these objects it is open to the State to introduce regulatory measures. We are unable to accept the submission that the State could intervene only after proving that merit was compromised or capitation fee was being charged. As observed in the earlier decisions of this Court, postaudit measures would not meet the regulatory requirements. Control was required at the initial stage itself. Therefore, our answer to the first question is that though “occupation” is a fundamental right, which gives right to the educational institutions to admit the students and also fix the fee, at the same time, scope of such rights has been discussed and limitations imposed thereupon by the aforesaid judgments themselves explaining the nature of limitations on these rights.

55. It would be necessary to clarify the position in respect of educational institutions run by minorities. Having regard to the pronouncement in T.M.A. Pai Foundation, (2002) 8 SCC 481, with lucid clarifications to the said judgment given by this Court in P.A. Inamdar, (2005) 6 SCC 537, it becomes clear that insofar as such regulatory measures are concerned, the same can be adopted by the State in respect of minorityrun institutions as well. Reliance placed by the appellants in St. Stephen’s College v. University of Delhi, (1992) 1 SCC 558, may not be of much help as that case did not concern with professional educational institutions.

67. Undoubtedly, right to establish and administer educational institutions is treated as a fundamental right as it is termed “occupation”, which is one of the freedoms guaranteed under Article 19(1)(g). It was so recognised for the first time in T.M.A. Pai Foundation, (2002) 8 SCC 481. Even while doing so, this right came with certain clutches and shackles. The Court made it clear that it is a noble occupation which would not permit commercialisation or profiteering and, therefore, such educational institutions are to be run on “no profit no loss basis”. While explaining the scope of this right, right to admit students and right to fix fee was accepted as facets of this right, the Court again added caution thereto by mandating that admissions to the educational institutions imparting higher education, and in particular professional education, have to admit the students based on merit. For judging the merit, the Court indicated that there can be a CET. While doing so, it also specifically stated that in case of admission to professional courses such a CET can be conducted by the State. If such a power is exercised by the State assuming the function of CET, this was so recognised in T.M.A. Pai Foundation, (2002) 8 SCC 481 itself, as a measure of “reasonable restriction on the said right”. Islamic Academy of Education, (2003) 6 SCC 697, further clarified the contour of such function of the State while interpreting T.M.A. Pai Foundation, (2002) 8 SCC 481, itself wherein it was held that there can be committees constituted to supervise conducting of such CET. This process of interpretative balancing and constitutional balancing was remarkably achieved in P.A.

Inamdar, (2005) 6 SCC 537, by not only giving its premature to deholding (sic imprimatur to the holding) of CET but it went further to hold that agency conducting the CET must be the one which enjoys the utmost credibility and expertise in the matter to achieve fulfilment of twin objectives of transparency and merit and for that purpose it permitted the State to provide a procedure of holding a CET in the interest of securing fair and meritbased admissions and preventing maladministration.” This Court also considered the balancing of rights even if there is a violation of fundamental rights of the appellants to admit students by Central Examination Test by State. It held as under:

“92. In this sense, when imparting of quality education to crosssection of the society, particularly, the weaker section and when such private educational institutions are to rub shoulders with the State managed educational institution to meet the challenge of the implementing ambitious constitutional promises, the matter is to be examined in a different hue. It is this spirit which we have kept in mind while balancing the right of these educational institutions given to them under Article 19(1)(g) on the one hand and reasonableness of the restrictions which have been imposed by the impugned legislation. The right to admission or right to fix the fee guaranteed to these appellants is not taken away completely, as feared. T.M.A. Pai Foundation, (2002) 8 SCC 481, gives autonomy to such institutions which remains intact. Holding of CET under the control of the State does not impinge on this autonomy. Admission is still in the hands of these institutions. Once it is even conceded by the appellants that in admission of students “triple test” is to be met, the impugned legislation aims at that. After all, the sole purpose of holding CET is to adjudge merit and to ensure that admissions which are done by the educational institutions, are strictly on merit. This is again to ensure larger public interest. It is beyond comprehension that merely by assuming the power to hold CET, fundamental right of the appellants to admit the students is taken away. Likewise, when it comes to fixation of fee, as already dealt with in detail, the main purpose is that the State acts as a regulator and satisfies itself that the fee which is proposed by the educational institution does not have the element of profiteering and also that no capitation fee, etc. is charged. In fact, this dual function of regulatory nature is going to advance the public interest inasmuch as those students who are otherwise meritorious but are not in a position to meet unreasonable demands of capitation fee, etc. are not deprived of getting admissions. The impugned provisions, therefore, are aimed at seeking laudable objectives in larger public interest. Law is not static, it has to change with changing times and changing social/societal conditions.”

(k) The Court held that MCI Act and the rules prescribed reasonable restrictions under Article 19(6), thus:

“53. After referring to paras 136 and 137 in P.A. Inamdar, (2005) 6 SCC 537, it was observed: (Assn. of Private Dental case, 2009 SCC OnLine MP 760, SCC OnLine MP paras 34 &

37) “34. It will be thus clear from paras 136 and 137 of the judgment in P.A. Inamdar, (2005) 6 SCC 537, quoted above, that admissions to private unaided professional educational institutions can be made on the basis of merit of candidates determined in the common entrance test followed by centralised counselling by the institutions imparting same or similar professional education together or by the State or by an agency which must enjoy utmost credibility and expertise and that the common entrance test followed by centralised counselling must satisfy the triple test of being fair, transparent and nonexploitative. Thus, the judgments of the Supreme Court in T.M.A. Pai Foundation, (2002) 8 SCC 481 and P.A. Inamdar, (2005) 6 SCC 537, permit holding of a common entrance test for determination of merit for admission to private unaided professional educational institutions by the State as well as any agency which enjoy utmost credibility and expertise in the matter and which should ensure transparency in merit.

* * *

37. Sections 3(d), 6 and 7 of the 2007 Act by providing that the common entrance test for determining merit for admissions in the private unaided professional educational institutions by a common entrance test to be conducted by the State or by an agency authorised by the State do not interfere with the autonomy of private unaided professional educational institutions, as such private professional educational institutions are entitled to collect the fees from the students admitted to the institutions on the basis of merit, appoint their own staff (teaching and nonteaching), discipline and remove the staff, provide infrastructure and other facilities for students and do all such other things as are necessary to impart professional education to the students. Sections 3(d), 6 and 7 of the 2007 Act, therefore, do not impinge on the fundamental right to carry on the occupation of establishing and administering professional educational institutions as an occupation. The only purpose of Sections 3(d), 6 and 7 of the 2007 Act is to ensure that students of excellence are selected on the basis of a common entrance test conducted by the State or an agency authorised by the State and that students without excellence and merit do not make entry into these professional educational institutions through malpractices and influence. As has been held both in the judgments in T.M.A. Pai Foundation, (2002) 8 SCC 481 and P.A. Inamdar, (2005) 6 SCC 537, the right of private unaided professional educational institutions to admit students of their choice is subject to selection of students on the basis of their merit through a transparent, fair and nonexploitative procedure. In our considered opinion therefore, Sections 3(d), 6 and 7 of the 2007 Act do not in any way violate the fundamental right of citizens guaranteed under Article 19(1)(g) of the Constitution. In view of this conclusion, it is not necessary for us to decide whether the provisions of Sections 3(d), 6 and 7 of the 2007 Act are saved by Article 15(5) of the Constitution or by the second limb of Article 19(6) of the Constitution relating to the power of the State to make a law for creation of monopoly in its favour in respect of any service.””

32. In Sankalp Charitable Trust (supra), various orders passed by this Court on different dates have been reported. This Court noted that NEET has been restored by judgment dated 11.4.2016 by which the judgment and order in Christian Medical College, Vellore and others was recalled. The respondents were directed to hold examination for admission to MBBS and BDS courses for the academic year 201617. The Court passed following order dated 28.4.2016:

“10. In view of the submissions made on behalf of the respondents, we record that NEET shall be held as stated by the respondents. We further clarify that notwithstanding any order passed by any court earlier with regard to not holding NEET, this order shall operate. Therefore, no further order is required to be passed at this stage.

11. It may be mentioned here that some learned counsel representing those who are not parties to this petition have made submissions that in view of the judgment passed in Christian Medical College, Vellore v. Union of India, it would not be proper to hold NEET and this order should not affect pending matters.

12. We do not agree with the first submission for the reason that the said judgment has already been recalled on 1142016 and therefore, the Notifications dated 21122010 are in operation as on today.” On 6.5.2016, the Court directed that no examination shall be permitted to be held for admission to MBBS or BDS studies by any private college or association or any private/deemed university.

Relevant portion is extracted hereunder:

“23. In view of the request made by the learned Solicitor General, hearing is adjourned to 952016. However, it is clarified that no examination shall be permitted to be held for admission to MBBS or BDS studies by any private college or association or any private/deemed university.

24. The issue with regard to those students, who had appeared or who are due to appear in examinations conducted by the States in accordance with their State laws, shall be decided after hearing the learned Solicitor General.” On 9.5.2016, in the aforesaid matter, the Court considered various applications filed by private medical colleges seeking clarification of order dated 28.4.2016. This Court directed as under:

“29. Medical Council of India (MCI) and Dental Council of India (DCI) issued Notifications dated 21122010, amending the existing statutory regulations to provide for a single National EligibilitycumEntrance Test (NEET) for admission to the MBBS/BDS course. The said Notifications were struck down in Christian Medical College, Vellore v. Union of India, (2014) 2 SCC 305. The said judgment stands recalled vide order dated 1142016 in Medical Council of India v. Christian Medical College, Vellore, (2016) 4 SCC 342.

32. In a recent Constitution Bench judgment dated 252016, in Modern Dental College & Research Centre v. State of M.P., (2016) 7 SCC 353, the stand of the private medical colleges (including minorities) that conducting of entrance test by the State violated the right of autonomy of the said colleges, has been rejected. The State law providing for conducting of entrance test was upheld, rejecting the contention that the State had no legislative competence on the subject. At the same time, it was held that the admission involved two aspects. First, the adoption of setting up of minimum standards of education and coordination of such standards which aspect was covered exclusively by List I Entry 66. The second aspect is with regard to implementation of the said standards which was covered by List III Entry 25. On the said aspect, the State could also legislate. The two entries overlap to some extent and to that extent List I Entry 66 prevailed over the subject covered by Entry 25.

33. Prima facie, we do not find any infirmity in the NEET regulation on the ground that it affects the rights of the States or the private institutions. Special provisions for reservation of any category are not subjectmatter of NEET nor are the rights of minority in any manner affected by NEET. NEET only provides for conducting entrance test for eligibility for admission to the MBBS/BDS course.

34. We thus, do not find any merit in the applications seeking modification of the order dated 2842016.”

33. In Jainarayan Chouksey (supra), the Court followed the decision in Modern Dental College and Research Centre (supra) and opined that the said decision encompasses not only the Stateconducted centralised test but also Stateconducted centralised counselling.

This Court issued a mandate for both the purposes, i.e., examination as well as counselling and held:

“5. We have heard the learned counsel for the parties at length. We observe that mandate of our judgment was to hold centralised entrance test followed by centralised State counselling by the State to make it a one composite process. We, therefore, direct that admission to all medical seats shall be conducted by centralised counselling only by the State Government and none else.

6. If any counselling has been done by any college or university and any admission to any medical seat has been given so far, such admission shall stand cancelled forthwith and admission shall be given only as per centralised counselling done by the State Government.”

34. In D.Y. Patil Vidyapeeth (supra), the Court again clarified that the decision in Modern Dental College and Research Centre (supra) encompasses not only centralised Stateconducted test but also centralised Stateconducted counselling.

35. The MCI amended vide notification dated 10.3.2017 the Regulation on Graduate Medical Education, 1997 and Post Graduate Medical Education Regulations, 2000 providing for common counselling for admission to MBBS and postgraduate medicine courses on the basis of NEET. The said notifications were challenged by minority institutions, deemed universities, and other private institutions by filing a writ petition before this Court. The Court vide order dated 9.5.2017 in DarusSalam Educational Trust and Ors. v.

Medical Council of India and Ors., (Writ Petition (C) No.267 of 2017) opined that common counselling does not in any manner affect the right of minority institutions to admit students of their own minority community. The Court held thus:

“10. Common counselling conducted by the DGHS/State Government will not in any manner affect the rights of minority institutions to admit students of their respective minority community. The minority quota seats, if any, in institutions run by minorities will be filled up by minority students only. Therefore, the rights of minority institutions are fully protected. Needless to say this arrangement will not apply to the States of Andhra Pradesh, Telangana and Jammu & Kashmir. As far as the other States are concerned, needless to say, this arrangement shall apply to all the colleges unless this Court has passed any different or separate order.”

36. In Yatinkumar Jasubhai Patel (supra), the Court held that introduction of NEET does not affect the 50% State quota seat in PG medicine course. The Court also considered Section 10D of the Act of 1956 and regulations as amended by MCI. It opined as under:

“9.4. However, it is the case on behalf of the petitioners that in view of the introduction of the NEET Scheme and in view of Section 10D of the MCI Act, by which admissions are to be given on the basis of merit in the NEET, such an “institutional preference” would not be permissible. It is required to be noted that introduction of the NEET has, as such, nothing to do with any preference/institutional preference, more particularly the “institutional preference” as approved by this Court time and again. The purpose and object of the introduction of NEET was to conduct a uniform entrance examination for all medical educational institutions at the undergraduate level or postgraduate level and admissions at the undergraduate level and postgraduate level are to be given solely on the basis of the merits and/or marks obtained in the NEET examination only. It is required to be noted that earlier the respective universities including Gujarat University used to hold examination for postgraduate admission to medical courses and now instead of such tests by Gujarat University/universities concerned, merit is to be determined on the basis of the NEET examination results only and admissions are required to be given on the basis of such merits or marks obtained in NEET. The only obligation by virtue of introduction of NEET is that, once centralised admission test is conducted, the State, its agencies, universities and institutions cannot hold any separate test for the purpose of admission to postgraduate and PG and diploma courses and such seats are to be filled up by the State agencies, universities/institutions for preparing merit list as per the score obtained by the applicants in NEET examination and therefore by introduction of NEET, Section 10D of the MCI Act has been amended, consequently amendment to the PostGraduate Education Regulations, 2000, admission to postgraduate courses are made providing for solely on the basis of the score secured by the candidates seeking admission based on centralised examination i.e. NEET.

9.5. Even while giving admissions in the State quota/institutional reservation quota, still the admissions are required to be given on the basis of the merits determined on the basis of the NEET examination results. Under the circumstances, introduction of the NEET Scheme, as such, has nothing to do with the “institutional preference”. Therefore, the change by introduction of the NEET Scheme shall not affect the institutional preference/reservation as approved by this Court from time to time in a catena of decisions, more particularly the decisions referred to hereinabove. Under the guise of introduction of the NEET Scheme, the petitioners cannot be permitted to reagitate and/or reopen the issue with respect to institutional preference which has been approved and settled by this Court in a catena of decisions, more particularly the decisions referred to hereinabove.”

37. The notifications, which are questioned in the matters and the amendment made to Section 10D as introduced in the Act of 1956 and regulations as amended by the MCI and similar provisions inserted in the Dentists Act & Regulations, cannot be said to be taking away the rights of the unaided minority institutions or private institutions of making admission in any manner as it is permissible to provide regulatory mechanism at the national level and the entrance test applies even to All India Institute of Medical Science (AIIMS) – the most reputed Institute of India. It is open to provide the regulatory mechanism for admission for such courses as held in T.M.A. Pai Foundation (supra) the qualification and conditions of eligibility in the interest of academic standards can be provided, and there could be regulatory measures for ensuring educational standards and maintaining excellence in the matter of professional institution. Thus, the decision in T.M.A. Pai Foundation (supra) rendered by 11Judge Bench is juxtaposed to the submission raised on behalf of petitioners.

38. In P.A. Inamdar (supra), the Court laid down the triple test of a fair, transparent and nonexploitative mechanism and if the admission procedure adopted by private institution does not satisfy all or any of the triple tests, it held that the admission procedure can be taken over by the State substituting its process. This aspect was gauged in Modern Dental College and Research Centre (supra) in a broader perspective considering prevailing situation of capitation fee and education becoming saleable commodity. A decision has been taken to regulate admission in professional colleges on national basis so as to wipe out the corruption and various evils from the system. Even, the NEET has been made applicable to such premier institution like All India Institute of Medical Sciences (AIIMS) and so many others.

The decision has been taken considering the overall national scenario, there cannot be any exemption, otherwise, there would be no end to such claims and multiple examinations. It would not be possible to eradicate evils. We cannot restore overall derogatory situation which prevailed before introduction of NEET. Still, there are several loopholes, which are to be plugged in the admission procedure.

Unscrupulous practices are being adopted by private colleges of not admitting students sponsored by centralised counselling committee.

The minority and private institutions have to admit students based on merit in the permissible category, based on NEET as per procedure prescribed under the Act and Regulations.

39. In Faculty Association of All India Institute of Medical Sciences v.

Union of India and Ors., (2013) 11 SCC 246, concerning issue of reservation in superspeciality, the Court opined:

“22. Although the matter has been argued at some length, the main issue raised regarding reservation at the superspeciality level has already been considered in Indra Sawhney case, 1992 Supp (3) SCC 217, by a nineJudge Bench of this Court.

Having regard to such decision, we are not inclined to take any view other than the view expressed by the nineJudge Bench on the issue. Apart from the decisions rendered by this Court in Jagadish Saran case, (1980) 2 SCC 768 and Pradeep Jain case, (1984) 3 SCC 654, the issue also fell for consideration in Preeti Srivastava case, (1999) 7 SCC 120, which was also decided by a Bench of five Judges. While in Jagadish Saran case, (1980) 2 SCC 768 and in Pradeep Jain case, (1984) 3 SCC 654, it was categorically held that there could be no compromise with merit at the superspeciality stage, the same sentiments were also expressed in Preeti Srivastava case, (1999) 7 SCC 120, as well.

23. In Preeti Srivastava case, (1999) 7 SCC 120, the Constitution Bench had an occasion to consider Regulation 27 of the Post Graduate Institute of Medical Education and Research, Chandigarh Regulations, 1967, whereby 20% of seats in every course of study in the institute was to be reserved for candidates belonging to the Scheduled Castes, Scheduled Tribes or other categories of persons, in accordance with the general rules of the Central Government promulgated from time to time. The Constitution Bench came to the conclusion that Regulation 27 could not have any application at the highest level of superspeciality as this would defeat the very object of imparting the best possible training to selected meritorious candidates, who could contribute to the advancement of knowledge in the field of medical research and its applications. Their Lordships ultimately went on to hold that there could not be any type of relaxation at the superspeciality level.

24. In para 836 of the judgment in Indra Sawhney case, 1992 Supp (3) SCC 217, it was observed that while the relevance and significance of merit at the stage of initial recruitment cannot be ignored, it cannot also be ignored that the same idea of reservation implies selection of a less meritorious person. It was also observed that at the same time such a price would have to be paid if the constitutional promise of social justice was to be redeemed. However, after making such suggestions, a note of caution was introduced in the very next paragraph in the light of Article 15 of the Constitution. A distinction was, however, made with regard to the provisions of Article 16 and it was held that Article 335 would be relevant and it would not be permissible not to prescribe any minimum standard at all. Of course, the said observation was made in the context of admission to medical colleges and reference was also made to the decision in State of M.P. v. Nivedita Jain, (1981) 4 SCC 296, where admission to medical courses was regulated by an entrance test. It was held that in the matter of appointment of medical officers, the Government or the Public Service Commission would not be entitled to say that there would not be minimum qualifying marks for Scheduled Castes/Scheduled Tribes candidates while prescribing a minimum for others. In the very next paragraph, the nine Judge Bench while discussing the provisions of Article 335 also observed that there were certain services and posts where either on account of the nature of duties attached to them or the level in the hierarchy at which they stood, merit alone counts. In such situations, it cannot be advised to provide for reservations. In the paragraph following, the position was made even more clear when Their Lordships observed that they were of the opinion that in certain services in respect of certain posts, application of rule of reservation may not be advisable in regard to various technical posts including posts in superspeciality in medicine, engineering and other scientific and technical posts.” (emphasis supplied) The Court directed the Union of India to take appropriate steps in accordance with views expressed in the case of Dr. Preeti Srivastava and Anr. v. State of M.P. and Ors. (1999) 7 SCC 120.

40. In Re The Kerala Education Bill (supra), it was opined that minority could not ask for aid and recognition of educational institution, when such institutions are recognized it would be open to make the institution retaining its character as effective as an educational institution without destroying its minority character for the purpose as enshrined in Article 30. The institution has to be an effective vehicle of education for all concerned.

41. In Gandhi Faizeam College, Shahjahanpur (supra), it was opined that regulation which imposes restrictions is bad; but regulation which facilitates is good. We find that in Frank Anthony Public School Employees' Association (supra) it has been observed that institution has to be an effective vehicle of education for the minority community or other persons who resort to it. There cannot be any complaint of invasion of the fundamental right to administer the institution when it denies the members of its staff the opportunity to achieve the very object. The Court observed that minorities have no right to maladminister. The notifications issued, amendment made to Section 10D of the Act of 1956 and regulations framed by MCI and similar provisions for dental courses providing for NEET cannot be said to be impinging upon the rights of the minority and the provisions of the Act and regulations framed by MCI under the Act of 1956, in DCI Act and regulations are required to be observed by each and every institution. The regulatory measures under the Act/ Regulations cannot be said to be averse to the interest of such institutions, and such reasonable measures can be carved out. They do not impinge upon the rights of institutions guaranteed under Articles 14, 19(1)(g), 25 and 30 of the Constitution of India.

42. In T.M.A. Pai Foundation (supra), this Court opined that State maintained or aided educational institutions, whether established by the Government or the majority or a minority community cannot deny admission to a citizen on the grounds only of religion, race, caste or language. While considering the issue In Re The Kerala Education Bill (supra), it was observed that the right of the private training colleges to admit students of their choice was severely restricted. It further observed that the right under Article 30(1) is not so absolute as to prevent the State from making any regulation whatsoever. The Government cannot be prevented from framing regulations that are in the national interest. This Court observed that it is difficult to comprehend that right to the religious or linguistic minorities are given by the Constitution, which would enable them to establish and administer educational institutions in a manner to conflict with the other Parts of the Constitution. There is no reason why conditions for the welfare of students and teachers should not be made, but any law or rule or regulation that would put the educational institutions run by the minorities at a disadvantage when compared to the institutions run by the others will have to be struck down. The law of the land includes rules and regulations that must apply equally to the majority as well as minority institutions. The minority institutions must be allowed to do what nonminority is permitted to do. They have to comply with the conditions of recognition, which cannot be such as to whittle down the right guaranteed under Article 30 of the Constitution.

43. In Brahmo Samaj Education Society (supra), it was held that State could impose necessary conditions for proper maintenance of standards of education and to check maladministration.

44. On behalf of the appellants, it was submitted that individual autonomy is the concern of any Government. There should not be interference to defeat the rights conferred by the Constitution.

Reliance has been placed on Gobind v. State of Madhya Pradesh (supra) in which this Court held:

“20. There can be no doubt that the makers of our Constitution wanted to ensure conditions favourable to the pursuit of happiness. They certainly realized as Brandeis, J. said in his dissent in Olmstead v. United States, 277 US 438, 471, the significance of man’s spiritual nature, of his feelings and of his intellect and that only a part of the pain, pleasure, satisfaction of life can be found in material things and therefore they must be deemed to have conferred upon the individual as against the Government a sphere where he should be let alone.

21. “The liberal individualist tradition has stressed, in particular, three personal ideals, to each of which corresponds a range of ‘private affairs’. The first is the ideal of personal relations; the second, the Lockean ideal of the politically free man in a minimally regulated society; the third, the Kantian ideal of the morally autonomous man, acting on principles that he accepts as rational. [See Benn, “Privacy, Freedom and Respect for Persons” in J. Pennock & J. Chapman. Eds., Privacy, Nomos XIII, 1, 1516].”

23. Individual autonomy, perhaps the central concern of any system of limited Government, is protected in part under our Constitution by explicit constitutional guarantees. In the application of the Constitution our contemplation cannot only be of what has been but what may be. Time works changes and brings into existence new conditions. Subtler and far reaching means of invading privacy will make it possible to be heard in the street what is whispered in the closet. Yet, too broad a definition of privacy raises serious questions about the propriety of judicial reliance on a right that is not explicit in the Constitution. Of course, privacy primarily concerns the individual. It therefore relates to and overlaps with the concept of liberty. The most serious advocate of privacy must confess that there are serious problems of defining the essence and scope of the right. Privacy interest in autonomy must also be placed in the context of other rights and values.

24. Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing. This catalogue approach to the question is obviously not as instructive as it does not give analytical picture of the distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying the concept has been the assertion that a claimed right must be a fundamental right implicit in the concept of ordered liberty.

25. Rights and freedoms of citizens are set forth in the Constitution in order to guarantee that the individual, his personality, and those things stamped with his personality shall be free from official interference except where a reasonable basis for intrusion exists. “Liberty against Government” a phrase coined by Professor Corwin expresses this idea forcefully. In this sense, many of the fundamental rights of citizens can be described as contributing to the right to privacy.

26. As Ely says:

There is nothing to prevent one from using the word ‘privacy’ to mean the freedom to live one’s life without governmental interference. But the Court obviously does not so use the term. Nor could it, for such a right is at stake in every case. [See The Wage of Crying Wolf: A Comment on Roe v. Wade, 82 Yale LJ 920, 932].”

45. The reliance has also been placed on K.S. Puttaswamy and Anr.

v. Union of India and Ors., 2017 (10) SCC 1, the decision relating to privacy in which this Court held:

“351. The Constitution of any country reflects the aspirations and goals of the people of that country voiced through the language of the few chosen individuals entrusted with the responsibility of framing its Constitution. Such aspirations and goals depend upon the history of that society. History invariably is a product of various forces emanating from religious, economic, and political events1. The degree of refinement of the Constitution depends upon the wisdom of the people entrusted with the responsibility of framing the Constitution. The constitution is not merely a document signed by 284 Members of the Constituent Assembly. It is a politically sacred instrument created by men and women who risked lives and sacrificed their liberties to fight alien rulers and secured freedom for our people, not only of their generation but 1 However, various forced which go into the making of history are dynamic. Those who are entrusted with the responsibility of the working of the Constitution must necessarily keep track of the dynamics of such forces. Evolution of science and growth of technology is another major factor in the modern world which is equally a factor to be kept in mind to successfully work the Constitution.

generations to follow. The Constitution cannot be seen as a document written in ink to replace one legal regime by another. It is a testament created for securing the goals professed in Preamble2. Part III of the Constitution is incorporated to ensure the achievement of the objects contained in the Preamble 3. "We the People" of this country are the intended beneficiaries4 of the Constitution. It must be seen as a document written in the blood of innumerable martyrs of Jalianwala Bagh and the like. Man is not a creature of the State. Life and liberty are not granted by the Constitution. Constitution only stipulates the limitations on the power of the State to interfere with our life and liberty. Law is essential to enjoy the fruits of liberty; it is not the source of liberty and emphatically not the exclusive source.”

46. It was argued that certain colleges have produced doctors of renowned fame, and they are an asset for India. There is no doubt about it that doctors of international fame have been produced by various institutions. They are an asset not only for India but also for the entire humanity. They are pioneers in various fields of medical science such as Oncology, Surgery, and other branches of medical science. But, when it comes to the eradication of the malpractices that have crept into the system, we have to take into consideration larger interest of the education countrywide. The NEET has been 2 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.

“91. … Our Preamble outlines the objectives of the whole Constitution. It expresses “what we had thought of dreamt for so long”.” (SCC p.323, para 91). 3 Kerala Education Bill, 1957, In re, AIR 1958 SC 956 “5. … To implement and fortify these supreme purposes set forth in the Preamble, Part III of our Constitution has provided for us certain fundamental rights.” (AIR p. 965, para 5).

4 Bidi Supply Co. v. Union of India, AIR 1956 SC 479 “23. After all, for whose benefit was the Constitution enacted? What was the point of making all this bother about fundamental rights? I am clear that the Constitution is not for the exclusive benefit of governments and States; it is only for lawyers and politicians and officials and those highly placed. It also exists for the common man, for the poor and the humble, for those who have businesses at stake, for the “butcher, the baker and the candlestick maker”. It lays down for this land “a rule of law” as understood in the free democracies of the world. It constitutes India into a Sovereign Republic and guarantees in every page rights and freedom to the side by side and consistent with the overriding power of the State to act for the common good of all.” (AIR p.487, para 23) [For convenience, citations have been renumbered.] prescribed by the Legislature in the larger public interest that has to prevail. We find the provisions to be reasonable conditions of recognition/ affiliation are binding for the very existence of all such institution whether they are run by majority or minority failing which they cannot exists and impart education. The conditions are reasonable and cannot be said to be taking away any of the constitutional rights of minority institutions, they are reasonable, fair and intended to bring transparency in the professional education imparted by institutions. They are applicable for all institutions alike minorities are not placed on a disadvantageous platform.

47. There is no doubt as to the concept of limited Government and least interference is welcomed, but in which field and to what extent balancing with the larger public and national interest is required. The individual autonomy, rights, and obligations are to be free from official interference except where the rational basis for intrusion exists. The Constitution provides a limitation on the power of the State to interfere with life, liberty, and rights, however, the concept of limited government cannot be extended to a level when it defeats the very national interest. The maladies with which professional education suffers in this country are writ large. The regulatory framework created by the MCI/ DCI is concomitant of conditions, affiliation and recognition, and providing central examination in the form of NEET cannot be said to be violative of the rights under Articles 19(1)(g) and

30. The regulatory framework is not restrictive, but caters to the effective enjoyment of the rights conferred under the aforesaid provisions. The provisions qualify the doctrine of proportionality considered in Modern Dental College and Research Centre (supra).

What has been held therein for State level examination holds good for NEET also.

48. The prescription of NEET is definitely in order to improve the medical education, corelated to the improvement of public health, thus, it is a stepin furtherance of the duty of the State enshrined in the Directive Principles of the State Policy contained in Article 47 of the Constitution of India. Similarly, Article 46 aims at promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes, and other weaker sections. By prescription of one equivalence examination of NEET, the interest of their merit is also equally protected and its aims of preventing various malpractices, which crept into system and prevent economic exploitation by selling seats with which malady the professional medical education system suffered.

Article 51A(j) deals with the duty to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. For that purpose, recognition of merit is necessary, and one has to be given a full opportunity in pursuit of his/her aim. The prescription of NEET is to provide equal opportunity and level launching platform to an individual to perform his duty as enshrined under Article 51A(j).

Thus, we find that there is no violation of the aforesaid provisions as argued by appellants, rather action is in furtherance of the constitutional aims and directions to achieve intendment of Article 51A(j) and is in the national interest.

49. In Secretary, Malankara Syrian Catholic College v. T. Jose and Ors., (2007) 1 SCC 386, Court considered T.M.A. Pai Foundation (supra), and held that all laws made by the State to regulate the administration of educational institutions and grant of aid will apply to minority educational institutions also, but dilution of right under Article 30 is not permissible. The right under Article 30 is not above the law. The regulations or conditions concerning the welfare of the students and teachers should be made applicable to provide a proper academic atmosphere.

50. In P.A. Inamdar (supra), the court opined that activities of education are charitable. The educational institutions, both of a non minority and minority character, can be regulated and controlled so that they do not indulge in selling seats of learning to make money.

They can be allowed to generate such funds as would be reasonably required to run the institute and for its further growth. In P.A.

Inamdar (supra), this Court noted the difference between professional and nonprofessional educational institutions. It observed that professional educational institutions constitute a class by themselves and are distinguished from educational institutions imparting non professional education. With respect to unaided minority educational institutions, Article 30 of the Constitution does not come in the way of the State stepping in for the purpose of securing transparency and recognition of merit in the matter of admissions, and the conditions of recognition are binding on such institutions. In P.A.

Inamdar (supra), the Court opined that the admissions based on merit were in the national interest and strengthening the national welfare.

51. In Ahmedabad St. Xavier's College Society (supra), the Court held that minority institutions have a right to admit students of their choice subject to reasonable restriction for the academic qualification and the regulation, which will serve the interest of the students, can be imposed for ensuring efficiency and fairness. Education is vital for the nation; it develops the ethos of the nation. Regulations are necessary to see that there are no divisive or disintegrating forces in administration. It observed that it is not reasonable to claim that minority institutions will have complete autonomy. Some checks may be necessary and will serve the academic needs of the institution. A correlative duty of good administration is attached to the right to administer educational institution. It was also opined in Ahmedabad St. Xavier's College Society (supra) in paragraph 19 quoted above that the State can prescribe regulations to ensure the excellence of the institution that does not militate against the right of the minority to administer the institutions. Such Regulations are not restrictions on the substance of the right, which is guaranteed; they secure the proper functioning of the institution. The institution cannot be allowed to fall below the standards of excellence under the guise of the exclusive right of the management. Minorities are as much part of the nation as the majority, and anything that impinges upon national interest must necessarily in its ultimate operation affect the interests of all.

52. It was further opined in Ahmedabad St. Xavier's College Society (supra) in paragraph 94 quoted above that there are conditions of affiliation or recognition of an educational institution, it is implicit in the request for grant thereof that the educational institution would abide by the regulations which are made by the authority granting affiliation or recognition. When Government and MCI/DCI or concerned Universities grant affiliation and recognition, the institutions are bound by the conditions prescribed for affiliation and recognition. It has also been observed that recognition or affiliation creates an interest in the university to ensure that the educational institution is maintained for the purpose intended and any Regulation which will subserve or advance that purpose will be reasonable and no minority institution established and administered by a religious or linguistic minority can claim recognition or affiliation without submitting to those regulations.

53. In view of the law laid down in T.M.A. Pai Foundation (supra), it is apparent that NEET/common entrance test is a devise to standardise and computing equivalence between different kinds of qualifications. It does not interfere with the rights of the unaided minority institutions as it has been imposed in national interest considering the malpractices of granting illegal admission by virtually selling the seats in derogation to rights of meritorious students. The charitable activity of education became a saleable commodity and prerogative of wealthy persons and poor students were forced to get education funded from Banks making it difficult for them to come out of tentacular octave of interest. They are exploited in bud before they bloom into flower. The illreputation developed by MCI forced to change its entire structure. The national interest requires further improvement in the system to eradicate evils from the system. The situation is still grim and require to be dealt with firm hand and steely determination.

54. In Dr. Preeti Srivastava and Anr. v. State of M.P. and Ors. (supra), it was opined that at super speciality level there cannot be any reservation or lowering of the minimum qualifying marks. In Modern Dental College and Research Centre (supra), considering various malpractices, it was observed that education is being used as exploitative financial device. Education is not a commodity to be purchased by money power and deserving one as per merit cannot be deprived of the right to obtain it. The State cannot remain a mute spectator, and it must step in to prevent exploitation.

55. Thus, it is apparent that the provisions in question which have been incorporated in the Act relating to Medical/Dental education, the Government, MCI and DCI cannot be said to be an invasion of the fundamental rights. The intendment is to ensure fairness in the selection, recognition of merit, and the interests of the students. In the national interest, educational institutions are basically for a charitable purpose. By and large, at present education is devoid of its real character of charity, it has become a commodity. To weed out evils from the system, which were eating away fairness in admission process, defeating merit and aspiration of the common incumbent with no means, the State has the right to frame regulatory regime for aided/ unaided minority/ private institutions as mandated by Directives Principles, Articles 14 and 21 of the Constitution. The first step has been taken to weed out the evils from the system, and it would not be in the national interest to step back considering the overall scenario. If we revert to the old system, posterity is not going to forgive us. Still, complaints are galore that merit is being ignored by private institutions; there is still a flood of litigation. It seems that unfettered by a large number of regulatory measures, unscrupulous methods and malpractices are yet being adopted. Building the nation is the main aspect of education, which could not be ignored and overlooked. They have to cater to national interest first, then their interest, more so, when such conditions can be prescribed for recognition, particularly in the matter of professional education.

56. In St. Stephen's College v. University of Delhi (supra), it was held that there has to be balancing of interest of rights of minorities. It was observed that 50% of the annual admission has to be given to the members of communities other than the minority community on the basis of merit. Regulations that serve the interest in standards of education amongst the recognised institutions could validly be made.

Such general patterns and standards are the need, and such regulation shall not have the effect of depriving the right of minorities to educate their children in their own institution.

57. The learned counsel argued that it is open to some of the institutions to impose higher standards of merit. Firstly, conditions of affiliation are binding apart from that, we find that when it comes to national standards and the objects sought to be achieved by NEET, to conduct individual examinations by some institutions cannot be permitted. The system is not yet out of clutches of unscrupulous devices and dubious means are adopted to defeat merit, the interest of education would further suffer and very purpose of centralised examination would be defeated. It is not possible to prescribe further examination over and above NEET that cannot be said to be workable, no exemption can be granted from NEET, considering the objective with which it has been introduced. We find that the uniform Entrance Examination cannot be said to be unreasonable regulatory framework.

Considering the terms and conditions for affiliation and recognition for professional medical and such other professional courses are binding, and no relaxation can be permitted in the conditions.

58. Thus, we are of the opinion that rights under Articles 19(1)(g) and 30 read with Articles 25, 26 and 29(1) of the Constitution of India do not come in the way of securing transparency and recognition of merits in the matter of admissions. It is open to regulating the course of study, qualifications for ensuring educational standards. It is open to imposing reasonable restrictions in the national and public interest.

The rights under Article 19(1)(g) are not absolute and are subject to reasonable restriction in the interest of the student's community to promote merit, recognition of excellence, and to curb the malpractices.

Uniform Entrance Test qualifies the test of proportionality and is reasonable. The same is intended to check several maladies which crept into medical education, to prevent capitation fee by admitting students which are lower in merit and to prevent exploitation, profiteering, and commercialisation of education. The institution has to be a capable vehicle of education. The minority institutions are equally bound to comply with the conditions imposed under the relevant Acts and Regulations to enjoy affiliation and recognition, which apply to all institutions. In case they have to impart education, they are bound to comply with the conditions which are equally applicable to all. The regulations are necessary, and they are not divisive or disintegrative. Such regulatory measures enable institutions to administer them efficiently. There is no right given to maladminister the education derogatory to the national interest. The quality of medical education is imperative to subserve the national interest, and the merit cannot be compromised. The Government has the right for providing regulatory measures that are in the national interest, more so in view of Article 19(6) of the Constitution of India.

59. The rights of the religious or linguistic minorities under Article 30 are not in conflict with other parts of the Constitution. Balancing the rights is constitutional intendment in the national and more enormous public interest. Regulatory measures cannot be said to be exceeding the concept of limited governance. The regulatory measures in question are for the improvement of the public health and is a step, in furtherance of the directive principles enshrined in Articles 47 and 51(A)(j) and enable the individual by providing full opportunity in pursuance of his objective to excel in his pursuit. The rights to administer an institution under Article 30 of the Constitution are not above the law and other Constitutional provisions. Reasonable regulatory measures can be provided without violating such rights available under Article 30 of the Constitution to administer an institution. Professional educational institutions constitute a class by themselves. Specific measures to make the administration of such institutions transparent can be imposed. The rights available under Article 30 are not violated by provisions carved out in Section 10D of the MCI Act and the Dentists Act and Regulations framed by MCI/DCI. The regulatory measures are intended for the proper functioning of institutions and to ensure that the standard of education is maintained and does not fall low under the guise of an exclusive right of management to the extent of maladministration. The regulatory measures by prescribing NEET is to bring the education within the realm of charity which character it has lost. It intends to weed out evils from the system and various malpractices which decayed the system. The regulatory measures in no way interfere with the rights to administer the institution by the religious or linguistic minorities.

60. Resultantly, we hold that there is no violation of the rights of the unaided/aided minority to administer institutions under Articles 19(1)

(g) and 30 read with Articles 25, 26 and 29(1) of the Constitution of India by prescribing the uniform examination of NEET for admissions in the graduate and postgraduate professional courses of medical as well as dental science. The provisions of the Act and regulation cannot be said to be ultra vires or taking away the rights guaranteed under the Constitution of India under Article 30(1) read with Articles 19(1)(g), 14, 25, 26 and 29(1). Accordingly, the transferred cases, appeal, and writ petitions are disposed of.

case law on article 30 part 2

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