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TMI Blog2003 (8) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... Petition No. 350 of 1993 filed by the Islamic Academy of Education and connected petitions were placed before a Bench of five Judges. As the Bench was prima facie of the opinion that Article 30 did not clothe a minority educational institution with the power to adopt its own method of selection and the correctness of the decision of this Court in St Stephens College v. University of Delhi was doubted, it was directed that the questions that arose should be authoritatively answered by a larger Bench. These cases were then placed before a bench of seven Judges. The questions framed were recast and on 6-2-1997, the Court directed that the matter be placed before a Bench of at least eleven Judges, as it was felt that in view of the Forty-second Amendment to the Constitution, whereby "education" had been included in Entry 25 of List III of Seventh Schedule, the question of who would be regarded as a "minority" was required to be considered because the earlier case-law related to the pre-amendment era, when education was only in the State List..............." After the Judgment was delivered, on 31st October 2002, the Union of India, various Stale Governments and the educational instit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducational institutions, had been given complete autonomy not only as regards the admission of students but also as regards the termination of their own fee structure. If was submitted that these institutions could fix their own fee structure, which could include a reasonable revenue surplus for purposes of development of education and expansion of the institution, and that so long as there was no profiteering or charging of capitation fees, there could be no interference by the Government. It was submitted that the right to admit students is an essential facet of the right to administer, and so long as admission to the unaided educational institutions is on a fair and transparent basis and on the basis of merit, government cannot interfere. It was submitted that these institutions are entitled to fill up all their seats by adopting/evolving a rational and transparent method of admission which ensures that merit is adequately taken care of. It was submitted that in any event the institutions should be given a choice and be allowed to admit students on basis of the ICSC or SSC or other such examination. It was also suggested that educational institutions of a particular type may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o another, to appear in all the tests. It was submitted that unless it was ensured that colleges admit students strictly on the basis of merit at a common entrance test, it would be impossible to ensure that capitation fees were not charged and that there was no profiteering. It was pointed out that some colleges do not even issue admission forms unless and until the student agrees to pay a hefty sum. It was submitted that the majority Judgment clarified that Article 30 had been enacted not for the purposes of giving any special right or privileges to the minority educational institutions, but to ensure that the minorities had equal rights with the majority. It was submitted that minority educational institutions cannot claim any higher or better rights than those enjoyed by the non-minority educational institutions. 212. Both sides relied upon various passages from the majority judgment in support of the respective submissions. These passages are reproduced hereinafter. In view of the rival submissions the following questions arise for consideration: 1) whether the educational institutions arc entitled to fix their own fee structure; 2) whether minority and non minority educat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. A representative of the Medical Council of India (in short 'MCI') or the All India Council for Technical Education (in short 'AICTE'), depending on the type of institution, shall also be a member. The Secretary of the State Government in charge of Medical Education or Technical Education, as the case may be, shall be a member and Secretary of the Committee. The Committee should be free to nominate/co-opt another independent person of repute, so that total number of members of the Committee shall not exceed 5. Each educational Institute must place before this Committee, well in advance of the academic year, its proposed fee structure. Along with the proposed fee structure all relevant documents and books of accounts must also be produced before the committee for their scrutiny. The Committee shall then decide whether the fees proposed by that institute are justified and are not profiteering or charging capitation fee. The Committee will be at liberty to approve the fee structure or to propose some other fee which can be charged by the institute. The fee fixed by the committee shall be binding for a period of three years, at the end of which period the institute would be at liber ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follows; "138. As we look at it, Article 30(1) is a sort of guarantee or assurance to the linguistic and religious minority institutions of their right to establish and administer educational institutions of their choice. Secularism and equality being two of the basic features of the Constitution, Article 30(1) ensures protection to the linguistic and religious minorities; thereby preserving the secularism of the country. Furthermore, the principles of equality must necessarily apply to the enjoyment of such rights. No law can be framed that will discriminate against such minorities with regard so the establishment and administration of educational institutions vis-a-vis other educational institutions. Any law or rule or regulation that would put the educational institutions run by the minorities at a disadvantage when compared to the institutions run by the others will have to be struck down. At the same time, there also cannot be any reverse discrimination. It was observed in St Xaviers College case, at page 192, that "the whole object of conferring the right on minorities under Article 30 is to ensure that there will be equality between the majority and the minority. If the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orities cannot be done away with and the minorities will still have a fundamental right to establish and administer educational institutions of their choice. Similarly even though the government may have a right to take over management of a non minority educational institution the management of a minority educational institution cannot be taken over because of the protection given under Article 30. Of course we must not be understood to mean that even in national interest a minority institute cannot be closed down. Further minority educational institutions have preferential right to admit students of their own community/language. No such rights exist so far as non minority educational institutions are concerned. Questions Nos. 3 and 4 216. Questions 3 and 4 pertain to private unaided professional colleges. Thus ail observations in answer to questions 3 and 4 are therefore confined to such educational institutions. 217. In order to answer the third arid fourth questions it is necessary to see the manner in which the majority judgment is framed and to consider certain paragraphs of the judgment. The majority judgment considered various aspects under different heads. The 3rd head ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndidates are not unfairly treated or put at a disadvantage by preferences shown to less meritorious but more influential applicants. Excellence in professional education would require that greater emphasis be laid on the merit of a student seeking admission. Appropriate regulations for this purpose may be made keeping in view the other observations made in this judgment in the context of admissions to unaided institutions." "59. Merit is usually determined for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school leaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by government agencies." Based on the above paragraphs it had been submitted, on behalf of the Union of India various State Governments and students that the majority Judgment makes a clear distinction between professional educational institutions (both minority and non minority) and other educational institutions i.e. schools and undergraduate colleges. The submission was that in professional institutions merit had to play an importa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eges and other educational institutions i.e. schools and undergraduate colleges. The subheading "Private unaided professional colleges" includes both minority as well as non minority professional colleges. This is also clear from a reading of paragraph 68. It appears to us that this distinction has been made (between private unaided professional colleges and other educational institutions) as the Judgment recognises that it is in national interest to have good and efficient professionals. The Judgment provides that national interest would prevail, even over minority rights. It is for this reason that in professional colleges, both minority and non-minority, merit has been made the criteria for admission. However a proper reading, of paragraph 68, indicates that a further distinction has been made between minority and non minority professional colleges. It is provided that in cases of non minority professional colleges "a certain percentage of seats" can be reserved for admission by the management. The rest have to be filled up on bases of counseling by State agencies. The prescription of percentage has to be done by the Government according to local needs. Keeping this in mind pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gujarat . All these cases have recognised and upheld the rights of minorities under Article 30. These cases have held that in the guise of regulations, rights under Article 30 cannot be abrogated. It has been held, even in respect of aided minority institutions that they must have full autonomy in administration of that institution. It has been held that the right to administer includes the right to admit students of their own community/language. Thus an unaided minority professional college cannot be in a worse position than an aided minority professional college. It is for this reason that paragraph 68 provides that a different percentage can be fixed for unaided minority professional colleges. The expression "different percentage for minority professional institutions" carries different meaning than the expression "certain percentage for unaided professional colleges," In fixing percentage for unaided minority professional colleges the State must keep in mind, apart from local needs, the interest/need of that community in the State. The need of that community, in the State, would be paramount vis-a- vis the local needs. 229. It must be clarified that a minority professional co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gement can be by a common entrance test held by "itself or by State/University". The words "common entrance test" clearly Indicate that each institute cannot hold a separate test. We thus hold that the management could select students, of their quota, either on the basis of the common entrance tests conduced by the State or on the basis of a common entrance test to be conducted by an association of all colleges of a particular type in that State e.g. medical, engineering or technical etc. The common entrance test, held by the association, must be for admission to all colleges of that type in the State. The option of choosing, between either of these tests, must be exercised before issuing of prospectus and after intimation to the concerned authority and the Committee set up hereinafter. If any professional college chooses not to admit from the common entrance test conducted by the association then that college must necessarily admit from the common entrance test conducted by the State. After holding the common entrance test and declaration of results the merit list will immediately be placed on the notice board of all colleges which have chosen to admit as per this test. A copy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s granted to unaided professional colleges, such a stipulation cannot be provided subsequently. We are unable to accept this submission. Such a provision can be made at the time of granting recognition/affiliation as well as subsequently after the grant of such recognition/affiliation. 233. We now direct that the respective State Government do appoint a permanent Committee which will ensure that the tests conducted by the association of colleges to fair and transparent. For each State a separate Committee shall be formed. The Committee would be headed by a retired Judge of the High Court. The Judge to be nominated by the Chief Justice of that State. The other member, to be nominated by the Judge, would be a doctor or an engineer of eminence (depending on whether the institution is medical or engineering/technical). The Secretary of the State in charge of Medical or Technical Education, as the case may be, shall also be a member and act as Secretary of the Committee. The Committee will be free to nominate/co-opt an independent person of repute in the field of education as well as one of the Vice Chancellors of University in that State so that the total number of persons on the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and the State Governments in the ratio 50:50. However, if by any interim order, this Court has permitted any institution to fill up a higher percentage of seats and the seats have been filled up accordingly, the same shall not be disturbed. It is made clear that due to the lime constraint this arrangement has been made, without deciding the contentious issue involved in various pending cases. 236. With these clarifications we now direct that all the matters be placed before the regular benches for disposal on merits. 237. All Interlocutory applications as regard interim matters stand disposed of. ============================================================================================ ==================================== S.B. Sinha, J. INTRODUCTORY REMARKS : 1. Imparting of education is a State function. The State, however, having regard to its financial and other constraints is not always in a position to perform its duties. The function of imparting education has been, to a large extent, taken over by the citizens themselves. Some do it as pure charity; some do it for protection of their minority rights whether based on religion or language and some do it by way of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with connected matters were placed before a Bench of five Judges, which was prima facie of the view that Article 30 of the Constitution of India did not clothe minority educational institutions with the power to adopt its own method of selecting students. 6. This Court in T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors. noticed the same stating : "The hearing of these cases has had a chequered history. Writ Petition No. 350 of 1993 filed by the Islamic Academy of Education and connected petitions were placed before a Bench of 5 Judges. As the Bench was prima facie of the opinion that Article 30 did not clothe a minority educational institution with the power to adopt its own method of selection and the correctness of the decision of this Court in St. Stephen's College v. University of Delhi was doubted, it was directed that the questions that arose should be authoritatively answered by a larger Bench. These cases were then placed before a Bench of 7 Judges. The questions framed were recast and on 6th February, 1997, the Court directed that the matter be placed a Bench of at least 11 Judges, as it was felt that in view of the Forty-Second Amendment to the Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders passed by the High Courts. Some writ petitions under Article 32 of the Constitution of India have also been filed. Keeping in view the importance of the question, this Court issued notices to all, the State Governments: 11. In the Special Leave Petitions and the Writ Petitions several other questions have also been raised but as at present advised this Bench intends to confine itself to the interpretation of judgment of this Court in T.M.A. Pai Foundation (supra) leaving other questions open for consideration by the appropriate benches. 12. In these matters this Court is not at all concerned with the rights of the aided minority and non-minority institutions and restrictions imposed by the States upon them but we are concerned only with the rights and obligations of private unaided institutions run by the minorities and nonminorities. SUBMISSIONS MADE ON BEHALF OF WRIT PETITIONERS - APPLICANTS: 13. It was urged that while interpreting the judgment, this Court should bear in mind the salient aspects of the findings in T.M.A. Pai (supra) that is to say : I ON THE FUNDAMENTAL RIGHTS OF EDUCATIONAL INSTITUTIONS: (i) Citizens have a fundamental right to establish and admini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have some seats to the extent of its reservation policy (Paras 42-441). (v) Although the aided, institutions are subject to Clause (2) of Article 29 and Clause (3) of Article 28 of the Constitution, but the unaided minority institutions being not so subject would not be bound by the restraints emanating therefrom so long they exercise their right to admit and select students in a transparent and non-arbitrary manner; III ON ADMISSION OF STUDENTS BY UNAIDED INSTITUTIONS (i) Unaided institutions have an unbridled right on admission of students, comprising of devising a test for selecting students of their choice (Para 36, 40-41, 50). Such a right emanates from the principle that every private and public owner of an institution has the power to admit qualified students of their own choice (Para 42-44). (ii) As such a right also emanates with a view to maintain the atmosphere and traditions of the private educational institutions, the general principles for unaided institutions would also apply to unaided professional institutions. The right of option either to select their candidates from the Government CET test or its own test is absolute and the ultimate decision in this behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C. (ix) The unaided institutions cannot be subject to onerous financial impositions nor can they be asked to perform the functions of the State. (Para 61) (x) In any event, the quota policy cannot be imposed on unaided institutions to the extent of laying down standards of a reasonable nature that do not cut down its operational autonomy and financial independence. (Paras 36, 40, 43, 53, 59, 65). V. FEE FIXATION FOR UNAIDED INSTITUTIONS 15. As unaided institutions are to be given maximum autonomy in the matter of fixation of fee, there cannot be : (a) a rigid fee structure (para 54) (b) Such fees are to be fixed by the unaided institutions (Para 56, 57). (c) The only impediment in this behalf is that no capitation fee can be charged nor the institutions can take recourse to profiteering since education is charitable in nature Therefore a reasonable revenue surplus for the purpose of development of education and expansion of education would be permissible (Para 571). While restricting charging the capitation fee and profiteering, this Court had merely directed that such institutions make no undue, excessive or illegal profits and thereby a reasonable profit is permitted. (d) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n while granting sufficient discretion to the management (b) As certain percentage of seats have to be reserved for the management, the rest can be filled up on the basis of counseling by the State agencies which would take care of poorer and backward sections of the society. The prescription of the percentage for the said purpose must be left with the State (Para 68). (vi) Professional institutions must apply a more rigorous test, which would be subject to greater regulation by the State or by the University. (Answer to Question No. 4). (vii) As the State while granting essentiality certificate is to consider the local needs and further guarantee smooth functioning of such institutions failing which the State has to adjust the students of the institutions to their own institutions, it has a great stake in the matter. Choice and selection of students in professional courses are directly linked with maintaining the standards of medical education. (viii) If a free hand is given to all the private medical, dental, engineering and other professional colleges to hold their own test, having regard to the time schedule framed by this Court for holding examinations in the 15% All India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, etc. UNNI KRISHNANAN, J.P. 19. This Court in Unni Krishnan (supra) while framing the scheme directed : (a) that a professional college should be established and/or administered only by a Society registered under the Societies Registration Act, 1860, or the corresponding Act of a State, or by a Public Trust registered under the Trusts Act, or under the Wakes Act, and that no individual, firm, company or other body of individuals would be permitted to establish and/or administer a professional college. (b) that 50% of the seats in every professional college should be filled by the nominees of the Government or University, selected on the basis of merit determined by a common entrance examination, which will be referred to as "free seats"; the remaining 50% seats ("payment seats") should be filled by those candidates who pay the fee prescribed therefor, and the allotment of students against payment seats should be done on the basis of inter se merit determined on the same basis as in the case of free seats. (c) that there should be no quota reserved for the management or for any family, caste or community, which may have established such a college. (d) that it should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts to the extent of 50% of the seats would not impinge upon the right under Article 30 of the Constitution of India. It was further held that regulations can be imposed by the State for intake of minority categories with regard to need of the minority in the area which the institution intends to serve. 23. A question, however, arose therein as to whether the State could impose regulatory measures on the institutions run by the minority community which provides for admission by conducting interviews but not solely on the marks obtained in the qualifying examination? In that case, the State had imposed restrictions on the college management compelling it to make admission exclusively on the basis of marks obtained in the qualifying examination. But the management, in addition to the marks obtained by the students, also conducted interviews for making admission to the college. This Court observed that the denial of power to St. Stephen's College to conduct interviews to select candidates for admission would be violative of the rights of the minority community guaranteed under Article 30(1) of the Constitution. It was held that, any regulatory measure imposed by the State on the mino ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions of affiliation including recognition/ withdrawal thereof, and appointment of staff, employees, teachers and principals including their service conditions and regulation of fees, etc. would interfere with the right of administration of minorities? 6. (a) Where can a minority institution be operationally located? Where a religious or linguistic minority in State 'A' establishes an educational institution in the said State, can such educational institution grant preferential admission/ reservations and other benefits to members of the religious/linguistic group from other States where they are non-minorities? (b) Whether it would be correct to say that only the members of that minority residing in state 'A' will be treated as the members of the minority vis-a-vis such institution? 7. Whether the member of a linguistic non-minority in one State can establish a trust/society in another State and claim minority status in that State? 8. Whether the ratio laid down by this Court in St. Stephen's case (St. Stephen's College v. University of Delhi) is correct? If no what order? 9. Whether the decision of this Court in Unni Krishnan, J.P. v. State of A.P. (except where it holds th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted under Article 30 of the Constitution, the state government or the university may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it is more so in the matter of admissions to professional institutions. A minority institution does not cease to be so, the moment grant-in-aid is received by the institution. An aided minority educational institution, therefore, would be entitled to have the right of admission of students belonging to the minority group and at the same time, would be required to admit a reasonable extent of non-minority students, so that the rights under Article 30(1) are not substantially impaired and further the citizens rights under Article 29(2) are not infringed. What would be a reasonable extent, would vary from the types of institution, the courses of education for which admission is being sought and other factors like educational needs. The State Government concerned has to no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion as well as the conditions; of affiliation to an university or board, have to be complied with, but in the matter of day-today management like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself. For redressing the grievances of employees of aided and unaided institutions who are subjected to punishment or termination from service, a mechanism will have to be evolved, and in our opinion, appropriate tribunals could be constituted, and till then, such tribunals could be presided over by a Judicial Officer of the rank of District Judge. The State or other controlling authorities, however, can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher or a principal of any educational institution. Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns to ensure the excellence of the institutions to be aided", (emphasis supplied) Thus, it is clear that regulations postulated for granting recognition or aid ought to be with regard to the excellence of education and efficiency of administration vis. to make certain healthy surroundings for the institutions, existence of competent teachers possessing requisite qualifications and maintaining fair standard of teaching. Such regulations are not restrictions on the right but merely deal with the aspects of proper administration of an educational institution, to ensure excellence of education and to avert maladministration in minority educational institutions and will, therefore, be permissible. This is on the principle that when the Constitution confers a right, any regulation framed by the State in that behalf should be to facilitate exercise of that right and not to frustrate it. " 35. Pal, J. also agreed with the said view stating: "Similarly, the Constitution has also carved out a further exception to Article 29(2) in the form of Article 30(1) by recognising the rights of special classes in the form of minorities based on language or religion to establish and administer educati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trol of Management over the staff, Government/University representative can be associated with the selection committee and the guidelines for selection can be laid down. In regard to un-aided minority educational institutions such regulations, which will ensure a check over unfair practices and general welfare, of teachers could be framed. There could be appropriate mechanism to ensure that no capitation fee is charged and profiteering is not resorted to. The extent of regulations will not be the same for aided and un-aided institutions." 37. The majority held that there is an apparent conflict between the provisions of Clause (2) of Article 29 and Clause (1) of Article 30. Article 29 guarantees the right to every citizen not to be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them; whereas Clause (1) of Article 30 confers a fundamental right to set up educational institutions of their choice. 38. A delicate balance was sought to be struck by stipulating that minority educational institutions may admit non-minority students to a "reasonable extent" so th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity status of a group of persons would be determined on the basis of population of the State or Union Territory concerned and not on the whole of the country. It was further held that education within the meaning of the provision of Article 36 would mean and include education from primary level to the post-graduate level and would include professional education as well. 45. The Bench, however, overruled the dicta in Unni Krishnan's case (supra) that education is not a 'business' or 'occupation' within the meaning of Article 19(1)(g) of the Constitution of India, wherein referring to State of Bombay v. R.M.D. Chamarbaugwala [1957 SCR 874] and incorporating the doctrine of res extra commercium, the Court had observed : "While the conclusion that 'occupation' comprehends the establishment of educational institutions is correct, the proviso in the aforesaid observation to the effect that this is so provided no recognition is sought from the state or affiliation from the concerned university is, with the utmost respect, erroneous. The fundamental right to establish an educational institution cannot be confused with the right to ask for recognition or affiliation." 46. While declarin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsellings by the State agency. Prescription by percentage has to be determined by the Government according to local needs (See Paragraph 68) (c) When the considers the Constitution Bench's earlier statements that higher education is not a fundamental right, it seems unreasonable to compel a citizen to pay for the education of another more so in the unrealistic world, of competitive examinations which assess the merit for the purpose of admission solely on the basis of marks obtained where urban students always have an edge over rural students. Those who seek professional education roust pay for it. (See Paragraphs 37 & 70). 2(ii) Private aided professional institutions: It would be permissible for the authority giving aid to prescribe by Rules or Regulations the conditions on the basis of which the admissions shall be granted to different aided colleges by virtue of merit coupled with reservation policy of the State. The merit may be determined either through the common entrance test conducted by the University or the Government followed by counselling or on the basis of entrance test conducted by individual institution, and method to be followed is for the Government or Unive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was not correct, and to that extent the said decision and consequent direction given to UGC, AICTE, Medical Council of India, Central and State Governments etc., is overruled. (Paragraph 45). (iii ) A rational fee structure should be adopted by the management and it would not be entitled to charge capitation fee and appropriate machinery can be devised by the State or University to ensure that no capitation fee is charged and that there is no profiteering, though a reasonable surplus in furtherance of education is permissible. The conditions of granting recognition or affiliation can broadly cover academic and educational matters including the welfare of students and teachers (Paragraph (59, Q.9). 51. The problem presented in these matters should be viewed from the aforementioned perspective. 52. There is a fundamental right to set up educational institutions both under Article 19(1)(g) and Article 30 of the Constitution of India. It held that the Scheme framed by this Court in Unni Krishnan did not impose reasonable restrictions within the meaning of Clause (6) of Article 19 of the Constitution of India. The unaided institution compared to the aided institutions will have mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as various options open to him/her where, therefore, normally economic forces have a role to play. The decision on the fee to be charged must necessarily be left to the private educational institution that does not seek or is not dependent upon any funds from the Government. 56. Since the object of setting up of an educational institution is charitable in nature, capitation fee and profiteering cannot be allowed to be indulged in: (a) although the institutions may generate a reasonable revenue surplus for the purpose of development of education and expansion of the institutions. (b) For admission in a professional institutions, merit must play an important role and meritorious candidates should pot be treated unfairly or put at a disadvantage by preferences shown to less meritorious but more influential applicants. 57. Excellence in professional education would require that greater emphasis be laid on the merit of a student seeking admission for which appropriate regulations can be made. As regards determination of merit, it was stated: "Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student obtains at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be done by the government according to the local needs and different percentages can be fixed for minority unaided and non-minority unaided and professional colleges. The same principles may be applied to other non-professional but unaided educational institutions viz., graduation and post graduation non-professional colleges or institutes. In such professional unaided institutions, the Management will have the right to select teachers as per the qualifications and eligibility conditions laid down by the State/University subject to adoption of a rational procedure of selection. A rational fee structure should be adopted by the Management, which would not be entitled to charge a capitation fee. Appropriate machinery can be devised by the state or university to ensure that no capitation fee is charged and that; there is no profiteering, though a reasonable surplus for the furtherance of education is permissible. Conditions granting recognition or affiliation can broadly cover academic and educational matters including the welfare of students and teachers. STATUTES OPERATING IN THE FIELD : 60. The Parliament in exercise of its power conferred upon it under Entry 66 List I o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tudent; (h) "university" means a university or institution referred to in Subsection (1) of section 22. (2) Without prejudice to the generality of the provisions of section 12 if, having regard to - (a) the nature of any course of study for obtaining any qualification from any University; (b) the types of activities in which persons obtaining such qualification are likely to be engaged on the basis of such qualification; (c) the minimum standards which a person possessing such qualification should be able to maintain in his work relating to such activities and the consequent need for ensuring, so far as may be, that no candidate secures admission to such course of study by reason of economic power and thereby prevents a more meritorious candidate from securing admission to such course of study; and (d) all other relevant factors, the Commission is satisfied that it is necessary so to do in the public interest, it may, after consultation with the university or universities concerned, specify by regulations the matters in respect of which fees may be charged, and the scale of fees in accordance with which fees shall be charged in respect of those matters on and from such date a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egulations made for the purposes of this section shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force." 62. Detailed regulations have been framed under the aforementioned three Acts regulating admission of students, percentage of the minority students to be admitted into non- minority institutions, determination of fee and matters incidental thereto and ancillary therewith. By reason of the said regulations, the State Government, however, have been delegated with the power to determine the fee structure in respect of professional institutions wherefor requisite guidelines have been issued; pursuant whereto and in furtherance whereof committees have been constituted for the said purpose. 63. The States of Tamil Nadu, Maharashtra, Karnataka and Andhra Pradesh enacted statutes prohibiting collection of capitation fee and regulating admission in professional colleges. In terms of the provisions of the said Acts, the management of the professional colleges is prohibited from charging any fee other than fee determined under the said Acts. The right of the minorities under Article 30 of the Constitution, however, stands ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments regarding the validity of any such enactment have been submitted before us. Thus those enactments will not be deemed to have been set aside by this judgment. Of course now by virtue of this judgment the fee structure fixed under any regulation or enactment will have to be reworked so as to enable educational institutions not only to break even but also to generate some surplus for future development/expansion and to provide for free seats." 67. Although the parties have raised their contentions as regards constitutionality of some of the provisions of the aforementioned statutes, keeping in view the limited scope for which this Constitution Bench has been constituted, we refrain ourselves from going thereinto. This exercise has to be undertaken in appropriate cases. ARE THE RIGHTS UNDER ARTICLE 19(1)(g) AND ARTICLE 30(1) OF THE CONSTITUTION OF INDIA EQUAL?: 68. T.M.A. Pal Foundation (supra) for the first time brought into existence the concept of education as an 'occupation'. In to uncertain terms, it was held that all citizens of India irrespective of the fact as to whether they belong to a minority group or not have a right to establish and run an institution. A right c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is granted to a professional institution, they will be subject to the same restrictions which any other self-financed scheme institution would face in terms of Clause (6) of Article 19 of the Constitution of India then no purpose can be held to have been achieved by the Constitution (sic) in enacting Clause (1) of Article 30 of the Constitution of India. 71. A citizen of India whether belonging to a minority community or not will have the right under Article 19. A person belonging to a minority community apart from 19(1)(g) has a right to establish, administer institution of their choice. In T.M.A Pal Foundation this Court held that minority institutions can establish and run a professional institution in terms of Clause (1) of Article 30 of the Constitution having regard to the fact that they have a right to establish an institution of their own choice. 72. A citizen of India with a view to establish an unaided professional institution exercises his right of occupation. To the said extent admittedly the right of the minority and non-minority is equal. Article 30, however, seeks further to protect the minorities so that they may admit students in the institution established by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the most important functions of the Indian State it has no monopoly therein. Private educational institutions -including minority educational institutions - too have a role to play," 75. However, it was also noticed : "138. As we look at it, Article 30(1) is a sort of guarantee or assurance to the linguistic and religious minority institutions of their right to establish and administer educational institutions of their choice. Secularism and equality-being two of the basic features of the Constitution, Article 30(1) ensures protection to the linguistic and religious minorities, thereby preserving the secularism of the country. Furthermore, the principles of equality must necessarily apply to the enjoyment of such rights. No law can be framed that will discriminate, against such minorities with regard to the establishment and administration of educational institutions vis-a-vis other educational institutions. Any law or rule or regulation that would put the educational institutions run by the minorities at a disadvantage when compared to the institutions run by the others will have to be struck down. At the same time, there also cannot be any reverse discrimination. It was obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... closely interlocked for there would be no true equality between a majority and a minority if the latter were deprived of its own institutions and were consequently compelled to renounce that which constitutes the very essence of its being a minority"." 78. The purport and object for which Article 30(1) was inserted in the Constitution cannot be lost sight of. Judgments of Khare. J. (as the CJI then was) and Variava, J. are replete with the debates in the constituent assembly. 79. The argument that the management of the minority institutions cannot be taken over, whereas that of the non-minority institutions can be, is misplaced and in any event irrelevant. This Court in no unmistakable terms held that the State cannot take any step by way of imposing conditions at the time of grant of recognition which would amount to nationalization of education. This applies to both minorities and non-minorities. 80. The Constitution prohibits acquisition of property of any citizen of India except in accordance with law. Any action taken on . the part of the State to take over the property of minority institution must also receive legal sanction through an act of a legislation and not otherwis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nority in Jammu & Kashmir, Punjab and some other States in North-East of India. Even Hindi speaking people except northern India are in minority in other parts of the country. 87. The question, thus, has to be considered keeping in view the fact that every Indian may be a minority, either based on religion or language, in one part of the country or the other. The right of a citizen as a minority in one part of the country cannot be higher than his right as a member of majority in another part of the country. 88. Furthermore, one of us (Variava, J.) speaking for himself and Bhan, J. clearly said : "Article 30 merely protects the right of the minority to establish and administer an educational institution, i.e. to have the same rights as those enjoyed by majority, Article 30 gives no right to receive State aid. It is for the institution to decide whether it wants to receive aid. If it decides to take State aid then Article 30(2) merely provides that the State will not discriminate against it. When State, whilst giving aid, asks, the minority educational institute to comply with a constitutional mandate, it can hardly be said that the State is discriminating against that institute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery nature of a college's permissible practice of awarding? value to racial diversity means that race must. be considered in a way that increases some applicants' chances for admission. Since college admission is not left entirely to inarticulate intuition, it is hard to see what is inappropriate in assigning some stated value to a relevant characteristic, whether it be reasoning ability, writing style, running speed, or minority race. Justice Powell's plus factors necessarily are assigned some values. The college simply does by a numbered scale what the law school accomplishes in its "holistic, review," Grutter, post, at 25; the distinction does not imply that applicants to the undergraduate college are denied individualized consideration or a fair chance to compete on the basis of all the various merits their applications may disclose." 96. Justice Ginsburg, however, speaking for himself and Justice Souter in their minority opinion stated: "Our jurisprudence ranks race A "suspect" category, "not because (race) is inevitably an impermissible classification, but because it is one which usually, to our national shame, has been drawn for the purpose of maintaining racial inequalit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goal of equality a mirage, such measure should not receive the approval of the Court. The Court, in such circumstances, has no mould the relief by indicating what would be the reasonable measure or action which furthers the object of achieving equality. The concept of equality is not a doctrinaire approach. It is a binding thread which runs through the entire constitutional text. An affirmative action may, therefore, be constitutionally valid by reason of Articles 15(4) and 16(4) and various directive principles of State policy, but the Court cannot ignore the constitutional morality which embraces in itself the doctrine of equality. It would be constitutionally immoral to perpetuate inequality among majority people of the country in the guise of protecting the constitutional rights Of minorities and constitutional rights of backward and downtrodden. All the rights of these groups are part of right to social development which cannot render national interest and public interest subservient to right of an individual or right of community. 99. In the event the minorities are not granted the right to establish educational institutions of their choice and admit students of their c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government of A.P. (supra). (v) Appointing a high official with authority and guidance to oversee, that Rules regarding conditions of service are not violated, but, however such an authority should not be given blanket, uncanalised and arbitrary powers (See All Saints High School v. Government of Andhra Pradesh (supra); (vi) Prescribing courses of study or syllabi or the nature of books [See State of Kerala v. Mother Provincial (supra) and All Saints High School v. Government of A.P. (supra)]; and (vii) Regulation in the interest of efficiency of instruction, discipline, health sanitation, morality, public order and the like [See Sidhbajbahi v. State of Gujarat (supra)] 104. Subject to what has been stated in T.M.A. Pai Foundation, some of the impermissible regulations are : (i) Refusal to affiliation without sufficient reasons [All Saints High School v. Government of A.P. (supra)]; (ii) Such conditions as would completely destroy the autonomous administration of the educational institution [All Saints High School v. Government of A.P. (supra)] ; (iii) Introduction of an outside authority either directly or through its nominees in the governing body or the managing committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution of India. Clauses (3) and (4) of Article 15 provide an exception to the general rule. A special provision either for women and children in terms of Clause (3) or for advancement of social and backward class of citizens of Scheduled Castes and Scheduled Tribes in terms of Clause (4) must be made by the State in terms of a legislation or an executive order. Such a legislation or executive order would be in relation to the State action. The said provisions cannot be extended by way of imposition of restriction or regulation so as to impair the right of a citizen of India under Article 19(1)(g) or Article 30 thereof. The question which may arise is as to whether the State can mandate upon an industry or a business house (for example) to provide job to a person belonging to a reserve category? If not, the necessary corollary would be that such a restriction, or regulation cannot be imposed on a citizen carrying on an 'occupation'. The right of a citizen in terms of Article 19(1)(g) of the Constitution whether to practise any profession' or 'to carry on any business/occupation' must be the same or similar. The reasonable restrictions in terms of Clause (6) must be on the exerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s well as the majority communities. There can be no manner of doubt that our Constitution has guaranteed certain cherished rights of the minorities concerning their language, culture and religion. These concessions must have been made to them for good and valid reasons. Article 45, no doubt, requires the State to provide for free and compulsory education for ail children, but there is nothing to prevent the State from discharging that solemn obligation through Government and aided schools and Article 45 does not require that obligation to be discharged at the expense of the minority communities. So long as the Constitution stands as it is and is not altered, it is, we conceive, the duty of this Court to uphold the fundamental rights and thereby honour our sacred obligation to the minority communities who are of our own. Throughout the ages endless inundations of men of diverse creeds, cultures and races - Aryans and non-Aryans, Dravidians and Chinese, Scythians, Huns, Pathans and Mughals - have come to this ancient land from distant regions and climes, India has welcomed them all. They have met and gathered, given and taken and got mingled, merged and lost in one body. India's tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ast with the other fundamental rights was to withdraw it from the reach of the majority. To subject the right today to regulations dictated by the protean concept of state necessity as conceived by the majority would be to subvert the very purpose for which the right was given." 113. This Court in Suneel Jatley and Ors. v. State of Haryana and Ors. [(1964) 4 SCC 296] held that reservations for students coming from rural areas would be bad in law. LOCAL NEEDS : 114. It is difficult to define precisely what would constitute "local needs". Mr. Venugopal refers to the Medical Council of India Regulations, 1999 for the purpose of showing the requirements necessary to be considered by the State Government for the grant of essentiality certificate. The State Government alone would be in a position to determine local needs which may be based, for instance, in the case of doctors, on the ratio of doctors to the population of the State. Other factors such as the percentage of the relevant minority in the State, the number of minority professional colleges belonging to that particular linguistic/religious minority in the State, percentage of poorer and backward sections in the State, total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e necessary for the State to establish a Government-run medical college. We cannot read the said judgment out of context. INTERPRETATION OF A JUDGMENT : 118. A judgment, it is trite, is not to be read as a statute. The ratio decidendi of a judgment is its reasoning which can be deciphered only upon reading the same in its entirety. The ratio decidendi of a case or the principles and reasons on which it is based is distinct from the relief finally granted or the manner adopted for its disposal. [See Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa and Ors. v. N.C. Budharaj (Deceased) By. Lrs. and Ors. (2001) 2 SCC 721] 119. In Padma Sundara Rao (Dead) and Ors. v. State of T.N. and Ors. , it is stated: "There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways Board ((1972) 2 WLR 537) [Sub nom British Railways Board v. Herrington, (1972) 1 All ER 749 (HL)]). Circumstantial flexibility, one additional or different fact may make a world of differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Ors. [1992 Supp (1) SCC 272], this Court when faced with difficulties where specific guidelines had been laid down for determination of seniority in Direct Recruits Class II Engineering Officers' Association v. State of Maharashtra, held that the conclusions have to be read along with the discussions and the reasons given in the body of the judgment. 126. It is further trite that a decision is an authority for what it decides and not what can be logically deduced therefrom. [See Union of India v. Chajju Ram ]. 127. The judgment of this Court in T.M.A. Pai Foundations (supra) will, therefore, have to be construed or to be interpreted on the aforementioned principles, The Court cannot read some sentences from here and there to find out the intent and purport of the decision by not only considering what has been said therein but the text and context in which it was said. For the said purpose the Court may also consider the constitutional or relevant, statutory provisions vis-a-vis its earlier decisions on which reliance has been placed. FEE STRUCTURE : 128. On a bare reading of the relevant paragraphs of the judgment some of which are referred to hereinbefore, it is beyond an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em. (2) No educational institution shall receive or collect any fee or accept deposit in excess of the amount notified under Sub-section (1). (3) Every educational institution shall issue an official receipt for the fee or deposit received or collected by it." 130. Once, however, it is held that such a provision would not constitute a reasonable restriction within the meaning of Clause (6) of Article 19, it must also be held that such a provision would not satisfy the test of permissible regulations within the meaning of Article 30 thereof. 131. The ground reality, however, cannot be lost sight of. It is true, as has been contended by the learned counsel appearing on behalf of the applicants, that the Central Government in answer to question raised in the Parliament has stated that the expenses incurred by the State for imparting education to the students is very high. It may vary from three lakhs to five lakhs. Some States, however, in their colleges charge about rupees five thousand per year; whereas the unaided institutions demand anything between rupees two lakhs to five lakhs. 132. Some State Governments unfortunately followed suit hiked fees and like many private unaided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : "Taking- advantage of unusual or exceptional circumstances to make excessive profits." 138. With a view to ensure that an educational institution is kept within its bounds, and does not indulge in profiteering or otherwise exploiting its students financially, it will be open to the statutory authorities and in its absence by the State to constitute an appropriate body, till appropriate statutory regulations are made in that behalf. 139. The respective institutions, however, for the aforementioned purpose must file an appropriate application before the Committee and place before it all documents and books of accounts in support of its case. 140. Fees once fixed should not ordinarily be changed for a period of three years, unless there exists extra-ordinary reason. The proposed fees, before indication in the prospectus issued for admission, have to be approved by the concerned authority/ Body set up. For this purpose the application should not be filed later than April of the preceding year, of the relevant education session. The authority/ Body shall take the decision as regards fees chargeable later by October of the year concerned, so that it can form part of the prospectus. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r minority aided and non-minority unaided professional colleges. It cannot, therefore, be said that paragraph 68 has to be read in isolation and paragraphs 58 and 59 of the judgment would be irrelevant for the said purpose. If the said paragraphs are read conjointly, there cannot be any doubt that merit must be at the forefront. For the said purpose professional and higher educational institutions have been clubbed together. 146. A dichotomy has arisen in view of the findings of the bench occurring in paragraphs 58 and 59 on the one hand and 68 of the judgment on the other. Paras 68 refers to private unaided professional colleges which would include both minority and non-minority as would appear from the following : "The prescription of percentage for this purpose has to be done by the Government according to the local needs and different percentages can be fixed for minority unaided and non-minority unaided and professional colleges. 147. Paragraph 58 clearly states that the merit must play an important role. In no uncertain terms, it is directed : "While seeking admission to a professional institution and to become a competent professional, it is necessary that meritorious c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommon entrance test held by the State or the University. The students belonging to the management quota may be admitted having regard to the common entrance test either held by the management or by the State/University although the test may be common. So far as students belonging to poorer or backward section of society is concerned. their seats will have to be filled up on the basis of counselling by the State agency. (As would appear from the discussions made hereinafter, it cannot be taken to its logical conclusin); (5) The percentage of management quota and the rest is required to be prescribed having regard to the local needs, (However, the percentage for minority unaided and non-minority unaided institutions may be different). 152. It is not correct to say that only because two different expressions "certain" and "different" have been mentioned at two places in para 68, they connote two different meanings. They will have to be read in the context in which they have been used. As a logical corollary, it will also be incorrect to say that minority unaided institutions can fill up all the seats from amongst the students belonging to their community whereas the non-minority una ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in my considered opinion, wrong to compare the unaided institutions always with aided institutions. St. Stephen should be understood in proper perspective. What is explained in T.M.A. Pai (supra) is that there cannot be any fixed percentage. Each case will have to be considered on its own merit. Need of the institution should be the prime concern. Percentage will have to be worked out having regard to the need only. 156. For the purpose of achieving excellence in a professional institution, merit indisputably should be a relevant criterion. Merit, as has been noticed in the judgment, may be determined in various ways (Para 59). There cannot be, however, any fool-proof method whereby and whereunder the merit of a student for all times to come may be judged. Only, however, because a student may faro differently in a different situation and at different point of time by itself cannot be a ground to adopt different standards for judging his merit at different points of time. Merit for any purpose and in particular for the purpose of admission in a professional college should be judged as far as possible on the basis of same or similar examination. In other words, inter se merit amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xaminations, not only the students will have to purchase different admission former which as noticed hereinbefore, may cost between Rs. 500/- to Rs. 1,000/- but he may be asked to appear in examinations at various places on the same day or on the next day and having regard to the distance, the transport facilities and other factors, he may not be able to appear therein. Travelling from place to place for the purpose of appearance at the examinations in quick succession would also entail a huge expenditure. It may also be difficult, to direct that such examinations be held with sufficient time gap. The fact remains that in terms of this judgment each State will be entitled to hold their own examinations. We are also not oblivious of the fact that allegations have been made that some institutions even may not sell an admission form unless it is assured of a hefty sum at the time of admission. It may be true that the States like Karnataka, Kerala and Tamil Nadu have permitted the minority institutions to conduct their own examinations for the purpose of admitting the students of their choice. Some institutions have pointed out, that they have been holding such examinations for a long ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate or university to university or board to board. In such a situation, equivalence of degrees must be considered for the said purpose by an appropriate authority. 162. In the aforementioned premise, I am of the opinion that the right of the minorities should be protected and fairness and transparency in holding such examinations would also be maintained if the minority institutions come to a consensus through their association or federation to hold a common test under the supervision of a monitoring committee which may be subject to verification at a later stage by taking recourse to : (1) report back system; (2) all answer papers may be preserved: and (3) in case of dispute some independent agency may determine the same. 163. It goes without saying that having regard to the number of institutions vis-a-vis number of candidates with reference to the local needs, it will be open to the State/university to fix higher cut-off marks than prescribed by the Medical Council of India or the All India Council for Technical Education. So far as common entrance test proposed to be held by the Federation/Association of private unaided professional institutions is concerned, the modalitie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n these statutory authorities have been created provide for such law. However, assuming such a machinery is not evolved, the State may constitute a body which may be headed by a person who has been a judge of the High Court to be nominated by the Chief Justice thereof. Standard of education at no cost shall be given a go by. 167. Furthermore, any institution if it thinks proper and expedient, may file an application for grant of exemption so as to enable it to hold its own examination. An application in this behalf should be filed by the end of April of the previous year in which such examination is sought to be held. The aforementioned body would pass an appropriate order within three months from the date of receipt of such representation upon giving an opportunity of hearing and placing of material in support of its stand, to the institution concerned. 168. Several States like State of Tamil Nadu, Karnataka and Kerala have permitted the educational institutions to hold their own examination for the purpose of admitting students within their quota. Some of the States like Maharashtra and Gujarat insist on admitting the students through Common Entrance Test. The following chart g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... framed in this behalf. 172. Furthermore, the need of the community vis-a-vis the local needs must be judged upon taking into consideration the relevant factors and ignoring irrelevant ones. In terms of Paragraph 68 of the judgment, local need would be a relevant factor for the purpose of determining the percentage of students who would be admitted on non-minority quota. Local needs, if it is compelling state interest, will have, a primacy over the need of the minority community and in that view of the matter it would not be correct to lay down a proposition of law that the need of that community in the State would be paramount. Each case, thus, has to be considered on its own merit and no hard and fast rule can be laid down therefor. 173. For the aforementioned purpose also, a machinery should be evolved in the respective States, the decision of which shall be final and binding. 174. However, there may not be any permanent Committee functioning as a tribunal. Such a body, if any, must be created under a statute. A tribunal with an adjudicatory power should not be directed to be created by this Court in exercise of its power under Article 142 of the Constitution of India. This, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Human Rights angle. 180. Rights of minorities, on the one hand, and rights of persons to have higher education and right of development should be so construed so as to enable the Court to give effect thereto. 181. The Universal Declaration of Human Rights, 1948 provides for 27 rights. Right of Education is also one of the human rights. Article 26 reads thus: "(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. " (2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. Parents have a prior right to choose the kind of education that shall be given to their children. " (Emphasis Supplied) 182. Article 3 of Convention Against Discrimination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f principal organs of the United Nations which have dealt with, the question of special protective measures for ethnic, religious, or linguistic groups are three resolutions of the General Assembly: (1) on the future government of Palestine, (2) on the question of the disposal of the former Italian colonies and (3) on the question of Eritrea. In addition, the Statue of the City of Jerusalem, approved by the Trusteeship Council, on 4 April 1950, provides special protective measures for ethnic, religious, or linguistic groups in articles dealing with human rights and fundamental freedoms, the legislative council, the judicial system, official and working languages, the educational system and cultural and benevolent institutions, and broadcasting and television. 187. From the texts of the "instruments and decisions mentioned above, it may be inferred that the term "minority" is applied internationally to two distinct categories of persons: (a) minorities whose members desire equality with dominant groups in the sole sense of non- discrimination, and (b) those whose members desire equality, with dominant groups in the sense of non-discrimination and the recognition of cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... my. Excellence in professional education must be viewed from the economic interest in the country. In order to compete with the other developed countries, GDP of India should be around 15% instead of present rate of 5%. This can be achieved only by producing students of excellence, which can be achieved only by encouraging institutions of excellence imparting professional education to those who are meritorious. Giving encouragement to the students, having better merit will, thus, have a direct nexus with the economic and consequently the national interests of the country. The right of development from the human right point of view must be construed liberally. When there are two competing human rights namely human rights for the religious minorities and the human rights for development, having regard to the economic and national interest of the country in the matter of admission of students, the latter should be. allowed to prevail subject to protection of the basic minority rights. The State may have to strike a delicate balance, between these two competing rights. Furthermore, the right to admit students may vary from course to course, discipline to discipline. At the stage of pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omotion of human development and the preservation and protection of human rights proceed from a common platform. Both reflect the commitment of the people to promote freedom, the wellbeing and dignity of individuals in society. Human development as a human right has a direct nexus with the increase in capabilities of human beings as also the range of things they can do. Human development is eventually in the interest of society and on a larger canvas, it is in the national interest also. As a human right, human development finds its echo in several areas as for example in excellence in professional education, be it the study of medicine, engineering or law. Progress and development in these fields will not only give a boost to the economy of the country but also result in better living conditions for the people of India. 196. In T.M.A. Pai Foundation's case (supra), this Court called upon the private unaided institutions including the minority educational institutions to fulfill the hopes and aspirations of the meritorious students and in particular the meritorious socially and educationally backward students. Higher education as contained in Article 26 must be based on merit. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat all of us cannot agree on all the points, despite the fact that the matter involves construction of a judgment. In the name of interpretation we have to some extent, however little it may be re-written the judgment. We have laid down new laws and issued directions purported to be in terms of Article 142 of the Constitution. We have interpreted T.M.A. Pai; but we have also made endeavours to give effect to it. In some areas it was possible; in some other it was not. 202. We have refrained ourselves from expressing any opinion at this stage as to whether grant of settlement of Government land at a throw-away price or allowing the private institutions to avail the facilities of Government hospitals would amount to grant of aid or not. We have also not expressed any opinion on cross-subsidy. 203. The supervisor courts in India exist for interpretation of Constitution or interpretation of statutes. They cannot evolve a fool-proof system on the basis of affidavits filed by the parties or upon hearing their counsel. Certain details of vexing problems on the basis of the interpretation given by this Court must be undertaken by the statutory bodies which have the requisite expertise. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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