2011 (5) TMI 1085

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..... ucation has hounded India from times immemorial. The futile pleadings of an Ekalavya for a teacher, that could not even be suppressed in the recesses of our cultural consciousness, to the modern day demands for exclusion from portals of knowledge of the "others", deemed to be unfit even if lip service of acknowledgement is paid that such "unfitness" may be due to no fault of theirs but is rather on account of their social, economic and cultural circumstances, gouges our very national soul. Even as higher levels of knowledge becomes vital for survival, and its technologies become capable of empowering those who belong to groups, that historically and in the present have been excluded from the liberating prowess of knowledge, this country seems to witness, as in the past, a resurgence in demands that knowledge be parceled out, through tight fisted notions of excellence, and concepts of merit that pander to the early advantages of already empowered groups. 3. For much of our history, most of our people were told that they were excluded, for no fault of theirs in this and here, but on account of some past mistakes. Hope was restricted to the duty that was supposed to attach itself to .....

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..... ery individual in those groups, we promised that never again would we allow social circumstances of the groups they belonged to be a factor in our assessment of their social worth. We gave our people the hope that we, the upper crust of India will change, and that their patience and tolerance of our inhumanity, over many millennia in the past and for a few decades more into the future, will soon be rewarded by our humanization. History says, Don't hope On this side of the grave, But then, once in a lifetime The longed-for tidal wave Of justice can rise up, And hope and history rhyme. Seamus Heaney, The Cure at Troy: A Version of Sophocles' Philoctetes, (London Faber and Faber, 1991); cited in Sen, Amartya, The Idea of Justice (Allen Lane, 2009). 5. We formed our nation-state to make sure that hope and history, as an actuality of experience of our people - all of our people, belonging to all of the groups into which they belonged to - would indeed rhyme. That is what our Constitution promises. And that is the motive force that informs the basic structure of our Constitution. Our fealty to that motive force is as sacred a promise that we as a nation have ever made to ours .....

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..... education? (2) Do private non-minority unaided professional educational institutions have the right to pre define a social group and admit into their institutions from only those social groups and exclude all other students the opportunity of being considered for admission into such educational institutions? It is against the background of the ark of hope that our Constitution is, that we have to answer the above questions. II Facts of the Case: The Private Non-Minority Unaided Professional Educational Institution 8. The private educational institution, started and managed by the Army Welfare Education Society ("AWES"), named Army College of Medical Sciences ("ACMS"), located in the National Capital Territory of Delhi ("NCT of Delhi"), seeks to admit only students who are wards or children of current and former army personnel and widows of army personnel (henceforth, we will be referring this entire group as "wards of army personnel" for ease of use). 9. AWES, it is stated, is a charitable trust that has been set up to cater to the educational needs of wards of Army personnel, both current and former, and widows of Army personnel. It is stated that the operation of its ed .....

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..... ided professional educational institution. 11. ACMS, in the year 2008, began to admit students. It sought to do this by a set of rules framed by itself, and which may be briefly stated as follows: (a) That only those students who have the relevant qualifying high school education and who have taken the common entrance test conducted by appropriate authorities for admission to medical colleges in the NCT of Delhi, and have secured the minimal qualifying marks in such a test, shall be eligible to apply to ACMS; (b) Of the students satisfying (a) above, only those who are wards or children of former and current army personnel and widows of army personnel (including those who have died in service) shall be eligible for admission; (c) that within the group of students satisfying conditions (a) and (b) above, admission based on strict inter-se ranking, based on marks secured in the common entrance test shall be followed for admitting students; and (d) there shall not be any distinction whatsoever, on the basis of social, economic or cultural background amongst the group comprising the wards of army personnel. The relevant laws of the affiliating university and the State Government .....

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..... fence Category (5%); (iv) Physically Handicapped (3%); and (v) Supernumerary Seats for Kashmiri Migrants (one seat). The said reservations, it is explicitly acknowledged were being provided for pursuant to Clause 5 of Article 15 of the Constitution, which was inserted by Constitution (Ninety Third Amendment) Act, 2005, which became effective on 20-1-2006. Ordinance 30 of GGSIU also specifically left out educational institutions that are owned by minorities from being subject to the reservations policy enunciated by it. 14. In addition to the above, as is the norm in rest of the Country wherein educational institutions are subjected to the laws of the legislature with territorial jurisdiction in which such educational institutions are located, ACMS is also subject to the laws of the NCT of Delhi, the territorial jurisdiction in which ACMS is located. In particular the applicable laws would be as cited below. The preamble of Delhi Act 80 of 2007 states that it is: "An Act to provide for prohibition of capitation fee, regulation of Admission, fixation of non-exploitative fee, a llotment of seats to Scheduled Castes, Scheduled Tribes and other socially and economically backward cla .....

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..... any "admission made in contravention of the provisions of this Act, or the rules made thereunder, shall be void." 16. However, ACMS based its admission policy on certain exemptions granted by the Government of Delhi exempting ACMS' admissions from the operation of provisions of Delhi Act 80 of 2007 with respect to allocations, as between Delhi and non-Delhi students, reservations as mandated in Sub-section (2) of Section 12, and the requirement that all admissions, in such reserved categories and with respect to remaining seats, be based on inter-se merit as determined by marks secured in the common entrance test. Such exemptions it is claimed have been granted in exercise of powers allegedly provided in Clause (b) of Sub-section (1) of Section 12 of the Delhi Act 80 of 2007. The said exemption specifically allowed ACMS to admit only wards of army personnel in accordance with ACMS's admission policy earlier noted herein. One of the peculiar aspects of the granted exemption seems to be that ACMS is mentioned to be the "Army" in the notification. 17. The admission policy of ACMS was challenged in a slew of writ petitions. The writ petitioners, students who otherwise would be eligib .....

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..... ission policy of ACMS ought to be upheld. In addition, it is also submitted that in as much as wards of army personnel suffer educational disadvantages, in comparison with the civilian population, and this affects the morale of army personnel, it would be in the national interest to allow ACMS and AWES to effectuate such admissions. Further, it is also claimed that such a right has been recognized previously by the courts in India. Further, with respect to it being an unaided educational institution, it was argued that ACMS is run purely out of regimental funds that have been held to be private funds, and not belonging to the Indian Army. Moreover, it is also claimed that the lease granted to it by the Army and the Ministry of Defense, in whose possession the public land, was for an initial period of thirty years, extendable to ninety nine years, to which effect the Ministry of Defense has "in principle" agreed to. Moreover, the access to Base Hospital of the Army in NCT of Delhi was only for a temporary period, and that an exclusive hospital for ACMS would soon be built. To this extent it was submitted that ACMS is not an "aided institution" under Delhi Act 80 of 2007 as its day t .....

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..... ts from the general category. It is against the judgment of the Division Bench that appeals by way of special leave petitions have been filed. III The Submissions of the Appellants: 20. The learned Counsel for Appellants, Dr. Aman Hingorani, submitted that ACMS is not an unaided institution, and further it is also posited that ACMS and its parent society be construed to be an "instrumentality of the State" under Article 12. To this effect the following facts were pointed out: (i) that a little over 25 acres extent of expensive land has been given on lease by Ministry of Defence, Union of India, in the Cantonment of Delhi; access has been provided to the Base Hospital; and further that affairs of AWES and of ACMS are substantially and wholly managed by regular officers of the Indian Army and headed by the Chief of Army Staff; and (ii) that regulations of Medical Council of India ("MCI") do not permit grant of permission for setting up of medical colleges unless the Society setting up such a college owns such land and has its own hospital of requisite number of beds, and further that the permission was granted by MCI on the ground that ACMS was in fact a governmental entity. It w .....

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..... hi students, and not to allocate all the seats in ACMS to wards of Army personnel. Moreover, it was also contended that in as much as private unaided educational institutions are essentially rendering services that the State ought to be rendering, and wherein such services are "public services," admitting only wards of Army personnel in all the seats in ACMS would be a violation of Article 14 and Article 15. 22. In this regard, it was also argued by Dr. Hingorani that even reservations cannot be to the extent of 100%, in as much as such reservations would amount to a violation of Article 14, and in any event any reservations with respect of constitutionally permissible classes would need statutory or executive provision. In the event, the permission granted by Government of Delhi to allow ACMS to admit only wards of Army personnel amounts to a super-reservation and violates Article 14. 23. It was also argued by the learned Counsel that the grant of permission to ACMS, to admit only wards of Army personnel, without regard to the claim of those students who have secured more marks would be a violation of the ratio of TMA Pai, as explained in Islamic Academy, and P.A. Inamdar. The l .....

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..... oy a wide variety of preferential treatments, including reservations across the country, as a part of reservations provided to wards of all Defence personnel. In the instant case 5% reservations are provided for wards of Defence personnel, under Ordinance 30 of GGSIU, and also pursuant to the rules of Delhi Government, pursuant to Section 23(g) of Delhi Act 80 of 2007 and the power granted by the enabling provisions in clause (c) of Sub-section (2) of Section 12. To grant an exemption in favour of ACMS, in contravention of specific statutory provisions, and to the exclusion of all other constitutional claimants to special treatment, as also the claim of general students to equality, would violate the discipline imposed by Articles 14 and 15 of the Constitution. The Submissions of the Respondents: 25. Learned Senior Counsel, Mr. K.K. Venugopal, and Mr. Jaideep Gupta, appearing for the Respondents, dispute the contentions of the Appellants that ACMS is an instrumentality of the State, and also further dispute that ACMS is an aided institution. Pointing to the fact that AWES is a charitable trust, set up purely with the object of promoting the welfare of wards of Army personnel, an .....

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..... r Counsel submitted that according to P.A. Inamdar only a consensual agreement can be arrived at between private unaided professional institutions regarding seat sharing, and the State could not unilaterally demand any such sharing. In this regard, the learned Senior Counsel was equating the demand by the Appellants that the State should permit admissions to professional unaided non-minority professional colleges only on the basis of marks secured in the common entrance test to a demand by the State of a "quota" of seats by the State for imposition of reservations or for that matter any other purpose. Further, given the issues faced by Army personnel, it was submitted that a larger public interest is involved in the armed forces personnel having comfort and security that their wards can get a fair opportunity for securing admissions into professional colleges. 27. The learned Senior Counsel, Mr. Jaideep Gupta contended that the right to set up educational institutions, whether minority or non-minority, pursuant to sub-clause (g) of clause (1) of Article 19, includes the right to admit students of their choice from a "source" within the general pool, so long as the procedure adopte .....

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..... set of issues, wherein the question of whether ACMS is an instrumentality of the State or an aided institution or an unaided institution would have to be answered, so that we could then determine which laws would be applicable. As argued by the learned Counsel for Appellants, the Delhi Act 80 of 2007 would be applicable with respect to the matters on hand, if ACMS is an unaided non-minority educational institution. If that be the status of ACMS, then we'd have to next consider whether the exemptions granted by the Delhi Government are valid. 29. It is also noted that at no stage of the proceedings, whether before the High Court or in this court, have the Respondents challenged the constitutional validity of Delhi Act 80 of 2007, and specifically the allocations and reservations as mandated by Section 12 therein. The said Act was enacted, after the 93rd Constitutional (Amendment) Act, 2005 inserted clause (5) of Article 15 into the Constitution. Both the Title and the Preamble of Delhi Act 80 of 2007 specifically state that it was an Act to ensure equity for Scheduled Caste, Scheduled Tribes and other weaker segments of the population. Consequently, clause (5) of Article 15's enabl .....

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..... propriate common entrance test. 31. In light of the above, we frame the following specific questions: Preliminary: 1. Is ACMS an instrumentality of the State or an aided institution? 2. If the answer to Question 1 above is no, then whether the exemptions granted by Delhi Government are valid? Substantial: 3. If the answers to both questions 1 and 2 above are no, whether ACMS can admit only wards of Army personnel to the seats not covered by reservations mandated by Delhi Act 80 of 2007, without any regard to the merit of other Delhi or non-Delhi students who may have secured higher marks in the appropriate common entrance test? V Analysis Preliminary Questions: Question 1: 32. Is ACMS an instrumentality of the State or an aided institution? We note that with respect to the issues of whether ACMS is an instrumentality of the State, and whether ACMS is an aided or unaided institution, that at both stages of proceedings in the High Court, the conclusion reached was that Respondents were neither an instrumentality of the State, nor could ACMS be held to be an aided educational institution. Such determinations always present issues of fact and of law. We are disinclined t .....

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..... is that ACMS is a private non-minority unaided professional institution, we now turn to the issue of the validity of the exemptions granted by Delhi Government from the operation of Delhi Act 80 of 2007. By permitting ACMS to allocate all its seats to wards of Army personnel, albeit ones who had taken and qualified the common entrance test, the Delhi Government effectively suspended the operation of the provisions of the Act with regard to selection of students solely on merit from the general category, and also the provisions that mandated allotment and reservation of seats to various constitutionally permissible classes, including but not limited to Scheduled Classes and Scheduled Tribes. 35. At the very beginning of this portion of this judgment, we wish to make an observation based on the text of both the Cabinet Decision, and the Notification of Government of Delhi, on which reliance is placed by ACMS and AWES to admit only students of Army personnel. The texts state that an approval was being granted, in the case of Cabinet Decision, and that permission was being granted, in the case of the Notifications, that hundred percent seats in ACMS may be allocated for "admission tow .....

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..... Section 12 reveals the intent of the legislature that the specific reservations provided for Scheduled Castes and Scheduled Tribes and other provisions that may be made with respect to other weaker segments and other permissible categories of classes, shall be applied with respect to each and every category of seats identified in sub-section (1) of Section 12. Looking at sub-section (2) of Section 12 closely, this would mean that not only are reservation of seats, for instance with respect to Scheduled Castes and Scheduled Tribes, to be made with respect to Delhi students, non-Delhi students, and also with respect to all students admitted under the management quota. 38. Instead of appreciating the primordial importance of sub-section (2) of Section 12 of the Delhi Act 80 of 2007, the Division Bench finds that there is "nothing in Section 12 of the Delhi Act 80 of 2007 which prohibits the appellants from making 100% allocation in favour of army/ex-army personnel and war widows". If indeed that be so, and ACMS admits all wards of army personnel from outside Delhi, then what exactly is the status of reservations that have been specifically mandated in sub-section (2) of Section 12 o .....

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..... ly, there is no power conferred on Government of Delhi to grant any exemption in favour of any institution from the operation of any of the provisions of the Act. 40. The Government of Delhi in its affidavit claims that its powers to provide such exemptions also flow from Article 162 of the Constitution. In relevant part Article 162 states "[S]ubject to the provisions of this Constitution the executive power of a State shall extend to the matters to which the Legislature of the State has power to make law." We simply fail to see how a Government that claims to be functioning in accordance with the Constitution of India, in which democracy has been deemed to be a basic feature of the Constitution, can claim the power under Article 162 to set at nought a declared, specified and mandated policy legislated by the legislature. In a constitutional democracy, with a parliamentary form of government, the executive may initiate a policy in a legislative bill to be enacted by the legislature or in the absence of legislative action in a particular field, enact policy that may be akin to law. However, the executive has to be answerable to the legislature. That is why it has been stated in no .....

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..... ntire new classes of students from within those eligible for admission to professional institutions by itself, and exclude all those students who are not members of such classes, notwithstanding that they may fall in the categories of Delhi or non- Delhi students. 43. Further, we also hold that such an interpretation to be strained. This is so for two reasons. One, the fact that the word "and" is always used as a conjunction between the first part of a sentence and the second part of a sentence, and the word "or" is used to denote an alternative in a series of exclusive arrangements. Consequently, we hold that the correct interpretation of sub-section (b) of Section 12(1) is as follows: first part - "Eighty five percent of the total seats except the management seats, shall be allocated for Delhi students" followed by the conjunction "and" and then the second part - "the remaining fifteen percent seats for outside Delhi students or such other allocation as the Government may by notification in Official Gazette direct." Therefore, it can only mean that the powers of Delhi Government are limited to the extent of varying the percentage of seats reserved for non-Delhi students, up to a .....

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..... b form, is defined by the Concise Oxford Dictionary Eight Edition, Oxford University Press (1990)to include the meaning of the act to give or apportion to, distribute officially to. Allotment is what results from such an act i.e., an apportionment. The word "reserve" is defined to also include the meaning of "order to be specifically retained or allocated for a particular person", and the word "reservation" is the act or an instance of reserving or being reserved. The word "allocate" is defined to include the meanings of an act to assign or devote something for a purpose or to a person. Consequently, it can only be surmised that while the words allocation was used in the said Act in the context of apportionment of seats between Delhi and non-Delhi students, the word "reservation" was used to mean to allocate a certain percentage of seats, in both groups formed by eligible Delhi and non-Delhi students, for Scheduled Castes, and Scheduled Tribes and other weaker sections of the population and other constitutionally permissible classes. The use of those two words, allocation and reservation in Section 12, in as much as they overlap in their meaning, and the fact that they together del .....

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..... are clearly applicable, with respect to admission of students to ACMS. VI Substantive Questions: Question 3: 47. Whether ACMS can admit only wards of Army personnel to the seats not covered by reservations mandated by Delhi Act 80 of 2007, without any regard to the merit of other Delhi or non-Delhi students who may have secured higher marks in common entrance test? 48. Having resolved the preliminary issues in Part V above, we now turn our attention to the issue of whether ACMS has an unfettered right to define its own source of students with respect to all the seats remaining after setting aside the seats for categories of students covered by sub- section (2) of Section 12, read with sub-section (1) of Section 12 of the Act. 49. The main contentions of learned Senior Counsel, Mr. K.K. Venugopal and Mr. Jaideep Gupta, have been that the ratio of TMA Pai, as explained in P.A. Inamdar, stands for the propositions that (a) the rights of nonminority unaided educational institutions under sub-clause (g) of Clause (1) of Article 19 are exactly the same as the rights of minority unaided educational institutions under Clause (1) of Article 30; and hence (b) nonminority professiona .....

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..... the highest marks in a common entrance test. We are reminded of the story of the camel that sought to protect itself from the desert cold, and just wanted to poke its head into the tent. It appears that the camel is now ready to fully enter the tent, in the desert, and kick the original inhabitant out altogether. 51. In any case we examine these propositions below, as we are unable to convince ourselves that this Court would have advocated such an illogical position, particularly given our history of exclusion of people, on various invidious grounds, from portals of education and knowledge. Surely, in as much as this Constitution has been brought into force, as a constitutive document of this nation, on the promise of justice - social, economic and political, and equality - of status and opportunity, for all citizens so that they could live with dignity and fraternal relations amongst groups of them, it would be surprising that this Court would have unhorsed the State to exclude anyone even though it would lead to greater social good, because marks secured in an entrance test were sacrosanct, and yet give the right to non-minority private educational institutions to do the same. .....

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..... est or the State may itself or through an agency arrange for holding of such test. Out of such common merit list the successful candidates can be identified and chosen for being allotted to different institutions depending on the courses of study offered, and number of seats, the kind of minority to which the institution belongs and other relevant factors. Such an agency conducting the common entrance test ("CET" for short) must be one enjoying utmost credibility and expertise in the matter. This would better ensure the fulfillment of twin objects of transparency and merit. CET is necessary in the interest of achieving the said objectives and also for saving the student community from harassment and exploitation. Holding of such common entrance test followed by centralized counseling or, in other words, single window system regulating admissions does not cause any dent in the right of the minority unaided educational institutions to admit students of their choice. Such choice can be exercised from out of the list of successful candidates prepared at CET without altering the order of merit inter-se of the students so chosen." 137. Pai Foundation has held that minority unaided inst .....

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..... same minority. It is not a right to define a source as such. We turn to excavate the rights of minority unaided educational institutions, and non-minority unaided educational institutions in the larger body of judgment P.A. Inamdar to get a more synoptic understanding of the ratio in that judgment. 55. In paragraph 124 of P.A. Inamdar it is stated that the majority did not "see much of a difference between non-minority and minority unaided educational institutions". That expression "much of a difference" gives the clue that there is an actual difference between the rights of minority unaided institutions under clause (1) of Article 30, and the rights of nonminority unaided institutions under sub-clause (g) of Clause (1) of Article 19. We will address that issue a little later by gleaning the differences between minority and non-minority institutions enunciated in P.A. Inamdar. By using the expression "much of a difference" the Court did not mean a complete absence of difference. If the expression, by itself, were taken out of context, it could be understood in two ways: (i) that there is not much of a difference in terms, between the two kinds of institutions under consideration, .....

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..... ourt was not suggesting that insistence, by the State, on making merit based selections within the groups, general category for the non-minority institutions, and the specific minority group to which the minority educational institution belonged, from which the two kinds of institutions were expected to select students from, amounts to an imposition of a State quota. The context of the discussion was of imposition of reservations on private unaided non-minority educational institutions. This is borne out by the last sentence in paragraph 125, where it is stated "[M]erely because the resources of the State in providing professional education are limited, private educational institutions, which intend to provide better professional education, cannot be forced by the State to make admissions available on the basis of reservation policy to less meritorious candidates." 56. The jurisprudence of TMA Pai with respect to unaided non-minority educational institutions, as explained by P.A. Inamdar, clearly seems to be that private unaided educational institutions seek to provide better professional education, and hence they should not be saddled with less meritorious students, i.e., those w .....

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..... ed to ensure merit, as determined by the marks secured on the qualifying exam, is taken care of and thereby achieve academic excellence. In the post clause (5) Article 15 scenario, we are looking at all the seats that are available in the non-reserved category. Those seats have to be filled by non-minority institutions on the basis of merit of students, i.e., ranking determined in accordance with marks secured, in the general category, comprising of the entire set of students who have taken the qualifying examination and secured the minimal marks. 58. It should be clear from the above that simply taking a few stray sentences from here and there in P.A. Inamdar and asserting from those sentences a ratio or a categorical holding would be an incorrect appreciation and leads to an inaccurate assessment of what this Court actually said and meant. The judgments of this Court in TMA Pai, Islamic Academy and in P.A. Inamdar are long, dealing with extremely complex issues of law and fact, and diverse zones of similarities and dissimilarities between the various types of educational institutions being considered, both by the ownership structure - such as minority or non-minority, and aided .....

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..... be taken in interpreting P.A. Inamdar, and a few stray sentences here and there ought not to be taken to indicate an actual holding or ratio. In P.A. Inamdar itself, the seven judge bench cautioned that such dependence on stray sentences would lead us astray. We have to delve into the foundations and the architectural super-structure erected by P.A. Inamdar to eke out the correct ratio applicable to the facts of the instant case. 59. In paragraph 91, of P.A. Inamdar, this Court enunciated one of the main holdings of TMA Pai as: "the right to establish an educational institution, for charity or for profit, being an occupation is protected by Article 19(1)(g)". In this regard, in as much as the majority in the 11 judge bench in TMA Pai, along with those who partly dissented and partly concurred, clearly held that education could be an occupation under Article 19(1)(g) only when charitable in nature, we are of the opinion, and hold, that the observation in para 91 in P.A. Inamdar that education can be an occupation imbued with profit motive is not the ratio of the decision. One sentence or a phrase or an expression cannot be torn out of context and be characterized as the ratio decid .....

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..... r linguistic, by protecting their right to establish and administer educational institutions of their choice under Article 30. To some extent, what may be permissible by way of restriction under Article 19(6) may fall foul of Article 30. This is the additional protection which Article 30(1) grants to the minorities. 93. The employment of expressions "right to establish and administer" and "educational institutions of their choice" in Article 30(1) gives the right a very wide amplitude. Therefore, a minority educational institution has a right to admit students of its own choice, it can as a matter of its own free will admit students of nonminority community. However, non-minority students cannot be forced upon it. The only restriction on the free will of the minority educational institutions admitting students belonging to a non-minority community is, as spelt out by Article 30 itself, that the manner and number of such admission should not be violative of the minority character of the institution. 94. Aid and affiliation or recognition, both by the State, bring in some amount of regulation as a condition of receiving grant or recognition. The scope of such regulations, as spel .....

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..... tudents from within the general pool. If indeed Army personnel now constitute a "Socially and Educationally Backward Class", then under Clause (5) of Article 15, it is for the State to determine the same, and provide by law, for reservations of wards of Army personnel, in consonance with the constitutional jurisprudence extant with regard to how a Socially and Educationally Backward Class is to be delineated, for instance by removal of the creamy layer, and that the extent of reservations to be provided ought not to exceed certain levels etc. That has not happened in this instant matter. Consequently, all of the permissible restrictions and regulations under Clause (6) of Article 19 that non-minority institutions would be subject to would also be applicable with respect to ACMS. These regulations would also include a determination of how students in the non-reserved category of seats, in the post 93rd Amendment scenario, be admitted: on the basis of merit, determined by marks secured on the common entrance test. Maintenance of overall academic standards, which apparently can be properly achieved only if high importance is placed on admitting students on the basis of ranking determi .....

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..... of merit in the matter of admissions....... However, a distinction is to be drawn between unaided minority educational institution at 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 of merit-based 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. Those could be regulatory measures for ensuring educational standards ........ 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." 63. What stands out therefore, is that even though it is quite clearly and explicitly stated that maintenance of merit as determined by marks secured in qualifying examinations is an absolute necessity under Clause (6) of Article 19 for those enjoying the freedoms only under sub-clause (g) of Clause (1) of Article 19, the protection of clause (1) of Article 30 to minorities is e .....

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..... and by choosing students arbitrarily from within the sources that they are entitled to choose from. In the case of non-minority institutions, especially professional institutions, the "source" can only be the general pool, and selection has to be based on inter-se ranking of students who have qualified and applying or opting to choose to be admitted to such non-minority educational institutions. In the case of minority educational institutions, the "source" can be delimited to the particular minority the institution belongs to. To hold otherwise would be illogical, even if one were to assume that what is afforded to minority institutions is only a protection rather than a full fledged right. The protection under clause (1) of Article 30 is granted to minority institutions so long as they maintain their minority status. If the non-minority educational institutions could choose their own sources, minorities which are assured equal protections as non-minorities should certainly have that right too. The added protections to minority educational institutions makes sense only in the event that non-minorities are restricted to choosing from the general pool, and minorities from the delim .....

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..... untry to relax the strict requirement that all admissions be on the basis of "merit based on marks secured in qualifying examinations." The other option would have been for Courts to find, in the interests of justice, to expand the "doing complete justice" jurisprudence under Article 142 to correct such instances of injustice, which raises its own problems. If we find that every unaided educational institution can define its own source, then we run head long into a situation wherein the entire field of higher education is carved up into "gated communities", with each new educational institution defining its own source in whichever manner it may choose to, as long as overt and invidious constitutional grounds of classification are not resorted to. How will the scholars in those colleges interact with people from other communities, other social backgrounds, so that they can perceive and conceive the manner in which they may have to apply what they are learning to solve the problems in the wider social context of India? Where would such classifications stop? Would members of the judiciary, both igher and lower, then determine that they will start many law colleges which will only admi .....

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..... pressing the challenge of basic structure doctrine against clause (5) of Article 15, the learned Senior Counsel relied on the opinion of our learned brother Justice Dalveer Bhandari in Ashoka Kumar Thakur, on the provisions of clause (5) of Article 15 that are applicable with respect to private unaided non-minority educational institutions. We note the specific text of the constitutional provisions below, and thereafter briefly summarise the opinion of Bhandari J, which learned Senior Counsel adopts wholesale as his submissions. Clause (5) of Article 15 states as follows: "Nothing in this article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any special provisions, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled tribes insofar as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30." 70. In Ashoka Kumar Thakur, apart from Bhandari J., the other four learned j .....

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..... would teach. In this regard, the test for violation of basic structure doctrine was conducted by an impact and effects test (or what is called as a "rights test"), claiming that the observations of I.R. Coelho v. State of Tamil Nadu (2007) 2 SCC 1 in para 151 (ii) mandated such a test. In the first phase, the so called impact stage, it was determined that clause (5) of Article 15 would indeed affect the "identity" of the freedom of private citizens to engage in the charitable occupation of starting, operating, managing, working in, financing and teaching in nonminority unaided educational institutions. To this extent, the observations in TMA Pai were relied on to trace the contours of the outline of the "identity" of the freedom under sub-clause (g) of clause (1) of Article 19. The test of violation of basic structure doctrine was further stated to be whether the identity of the freedom of educators in non-minority unaided educational institutions under sub-clause (g) of clause (1) of Article 19 was "compromised" by clause (5) of Article 15. It was also held that even if the freedom to choose students of one educator was affected, then the identity of the freedom to engage in the .....

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..... rticle 19, to be unreasonable restrictions and not covered by clause (6) of Article 19. The purpose of the Amendment was to clarify or amend the constitution in a manner that what was held to be unreasonable would now be reasonable by virtue of the Constitutional status given to such measures. The correct approach would then be to test whether powers of amendment in Article 368 do extend to imposing restrictions on a right, which otherwise would have been held to be "unreasonable" on account of a judgment of this Court. Once that test is conducted and found to be not violating the basic structure of the Constitution, the grounds on which this Court had previously found the reservations to be unreasonable would vanish. This is even more so, when the amendment, and the consequent legislation, cannot and do not seem to be directed at completely eliminating the possibility of private citizens engaging in that activity, the right to charge appropriate fees is protected, and moreover the existing jurisprudence does not allow, normally an imposition of reservations above 50%. If we were to be guided by the submissions in this regard by the learned Senior Counsel we find that we would have .....

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..... e Court had arrived at the final answers. This has a deleterious effect on law. The broader principles that are applied, in a specific manner to particular fact patterns located in the specific questions that the courts set out to answer, would then be obliterated, and the narrow application that the Court finds for a specific situation, which is but an instance of the broader principle, the genus, would have taken over. Moreover, in the preceding paragraph 150, this Court enunciated that it is the constitutional validity of the Ninth Schedule laws which have to be adjudged by applying the "direct impact and effect test i.e. rights test." Consequently, if we were to just take the text of para 151 (ii) by itself as the ratio, then we would also run the risk of not recognizing the multiple principles enunciated in the conclusion itself. Hence, we find it necessary to cite below sub-paras (i), (ii), (iii), (iv) and (v) of Para 151 of I.R. Coelho below (emph. supplied), and thereafter derive the principle that is applicable in the instant matter: "(i) A law that abrogates or abridges rights guaranteed by Part III of the Constitution may violate the basic structure or it may not. If f .....

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..... s "permissible for the Parliament under Article 31-B to immunize legislation from fundamental rights by inserting them into the Ninth Schedule, and if so, what is its effect on the power of judicial review of the Court". In para 78 of I.R. Coelho it was noted that the "real crux of the problem is to the extent and nature of immunity under Article 31-B can validly provide". The question of immediate purport was whether Article 31-B provided a blanket protection such that legislative enactments which destroy the basic structure could be included in the Ninth Schedule, and thereby become immune from the test of basic structure itself. 77. One of the incidental questions that this Court in I.R. Coelho sought to answer was whether, pursuant to Keshavananda, none of the fundamental rights were to be considered to be a part of the basic structure. This was so, in the light of the opinion of Khanna, J., in Keshavananda, which seemed to suggest that fundamental rights were not to be treated as a part of the basic structure. However, in light of Khanna J's, clarification in the Indira Nehru Gandhi v Raj Narain 1975 Supp SCC 1 case, that his opinion in Keshavananda could not be read to mean .....

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..... t Constitutional Amendment in 1951. The purport of its provisions is that sub-clause (g) clause (1) of Article 19 should not be read to mean that if the State were to make "special provisions" with respect to admission of Scheduled Castes, Scheduled Tribes, and Socially and Educationally Backward Classes to non-minority unaided educational institutions the same should not be deemed to be unreasonable. A small portion, of one of the activities of one particular occupation in the entire field of occupations that are a part of the guaranteed freedoms by subclause (g) of clause (1) of Article 19, is to be restricted. Further, such an amendment was necessary, as stated in the Statement of Objects and Reasons of the Constitution (one Hundred and Fourth Amendment) Bill 2005 (which became the 93rd Constitutional (Amendment) Act, 2005), to promote the "educational advancement of the socially and educationally backward classes of citizens....The Scheduled Castes and Scheduled Tribes in matters of admission of students belonging to these categories in unaided educational institutions other than minority educational institutions." It was also stated that greater access to higher education, inc .....

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..... he amendment is "consistent with the original; you cannot by an amendment transform the original into the opposite of what it is. For that purpose, a comparison is undertaken to match the amendment with the original. Such a comparison can yield fruitful results even in the rarefied sphere of constitutional law." In other places, as in para 105, it is noted that "Economic growth and social equity are two pillars of our Constitution, which are linked to the rights of an individual (right to equal opportunity), rather than in the abstract. Some of the rights in Part III constitute fundamentals of the Constitution like Article 21 read with Articles 14 and 15 which represent secularism etc., As held in Nagaraj M. Nagaraj v Union of India (2006)8 SCC 202 egalitarian equality exists in Article 14 read with Articles 16(4), (4-A), (4-B) and, therefore, its wrong to suggest that equity and justice finds place only in the directive principles." (emph. supp'd). Upon discussing various aspects such as the fact that extensive discussions were held in Keshavananda with respect to status of property as a fundamental right, that in the Indira Gandhi case Chandrachud, J., posits that equality embodi .....

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..... "we have to be guided by the impact test." (see para 149) "The basic structure doctrine requires the State to justify the degree of invasion of fundamental rights..." Further on in para 150 the Court concludes "The result of the aforesaid discussion is that the constitutional validity of the Ninth Schedule laws can be adjudged by applying the direct impact and effect test i.e., rights test, which means the form of an amendment is not the relevant factor, but the consequences thereof." 83. The above cited paragraph lends further support to our earlier observation that this Court in I.R. Coelho has made an essential distinction between the kinds of constitutional amendments that are effected by placement of State laws in the Ninth Schedule versus the kinds of constitutional amendments that change aspects of the Constitution itself. This is further supported by the fact that in para 133 the Court recognized that the laws placed in the Ninth Schedule do not become a part of the main body of the Constitution, and that they become a part of Ninth Schedule and "derive validity on account of the exercise undertaken by Parliament to include them... This exercise has to be tested every tim .....

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..... "The validity or invalidity would be tested on the principles laid down in this judgment". That sentence clearly indicates that the same has to be determined in accordance with the principles laid down in the entire judgment and not just in the conclusion. That principle was unequivocally laid down in para 142 that had been cited earlier, which recognizes that the test of Constitutional amendments on the anvil of the basic structure doctrine would have to be in accordance with the test delineated in M. Nagaraj. 85. In light of the above discussion, we are of the opinion that it is impermissible for us to apply the direct impact and effects test to evaluate whether clause (5) of Article 15 provisions with respect to admissions to unaided non-minority educational institutions violate the basic structure. By no stretch of imagination could the provisions of Clause (5) of Article 15 be deemed to be so wide as to eliminate an entire chapter of fundamental rights, or permit complete evisceration of even the freedom to engage in one of the occupations of the many occupations guaranteed by clause (g) of clause (1) of Article 19. The correct test would be the "essences of rights" test, i.e .....

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..... stematic principles underlying and connecting the provisions of the Constitution. These principles give coherence to the Constitution and make it an organic whole.... These principles are part of constitutional law even if they are not expressly stated in the form of rules. An instance is the principle of reasonableness which connects Article 14, 19 and 21. Some of these principles may be so important and fundamental, as to qualify as "essential features" or part of the "basic structure" of the Constitution, that is to say, they are not open to amendment. However, it is only by linking provisions to such overarching principles that one would be able to distinguish essential from less essential features of the Constitution."  (emphasis added).   It was further specified that certain principles, such as federalism, socialism, secularism and reasonableness "are beyond the words of a particular provision. They are systematic and structural principles underlying and connecting various provisions of the Constitution." 87. The modality of the "essences of rights test" was enunciated in para 25 of M. Nagaraj as follows: " In order to qualify as an essential feature, it must be .....

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..... of the conspectus of activities of one occupation in a plethora of occupations that itself forms a part of the many different kinds of freedoms that leads to the violation of the basic structure doctrine; but rather whether the over-arching principles, that connect one fundamental right to the other that are so abrogated as to change the very identity of the Constitution which is the true test to evaluate whether a constitutional amendment has violated the basic structure doctrine. In this regard, the Court in M. Nagaraj further goes on to pithily state that the standard to be applied in evaluating whether an amendment has also modified the over-arching principles, that inform each and every fundamental right and link them, is to find whether because of such a change we have a completely different constitution. In particular, summarizing the various opinions in Keshavananda Bharati(1973) 4 SCC 225, it was stated: "To conclude, the theory of basic structure is based on the concept of constitutional identity. The basic structure jurisprudence is a preoccupation with constitutional identity.... The word "amendment" postulates that the old Constitution survives without a loss of its .....

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..... rs do not have the luxury of facile metaphysical speculations, and imposing conclusions arrived thereupon on this country, by ignoring the practical impact of the ship and the larger purposes that it is supposed to serve. Indeed our ship, the Constitution, was never intended to remain in the harbour and was intended to set sail. The narrative of our Ship of Theseus takes a different form for us. 91. We liken our Constitution to the Ship of Theseus, with the difference that the ship itself has been provided with sufficient wood, and tools to fashion new boards, and it was to actually set sail. The Ship of our Nation, the Constitution, set sail on its journey in 1950, on uncharted oceans of time, circumstances and challenges. We set sail with a ship as it was then designed, nevertheless knowing that certain features were quintessential to being a ship that could sail such oceans; and we set sail towards a target, almost like Columbus, with the understanding that sailing in a particular direction would get us to a particular destination. We even promised ourselves, that notwithstanding our prior history of bickering, of degradation of humans amongst us by ascribed status, and of econ .....

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..... sionmaking. There is a moral dimension to every major constitutional case: the language of the text is not necessarily a controlling factor. Our Constitution works because of its generalities; and because of the good sense of the judges when interpreting it. It is that informed freedom of action of judges that helps to preserve and protect our basic document of governance." (para 30 of M. Nagaraj). 93. Proceeding on the rationale as enunciated in the cited paragraphs, this Court in M. Nagaraj, then enunciated that the "theory of the basic structure is based on the principle that a change in a thing does not involve its destruction and destruction of a thing is a matter of substance and not of form. Therefore one has to apply the principle of over-arching principle to be gathered from the scheme and the placement and the structure of an article in the Constitution. For example, the placement of Article 14 in the equality code; the placement of Article 19 in the freedom code; the placement of Article 32 in the code giving access to the Supreme Court". 94. Yet, the question remains? How do we discern whether a particular aspect is a part of the basic structure or not? In M. Nagaraj, .....

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..... ssential ones that form the freedom to engage in one of the occupations of the many occupations that are a part of the many freedoms guaranteed by the Constitution, conflicts with an amendment that intends to strengthen the process of achievement of one of the main navigational tools and thereby the goals of the nation-state itself, should such an amendment be declared to be unconstitutional and against the basic structure? Shouldn't one also look at the damage that such a declaration can cause to many of the other basic features of the Constitution, and also the loss of diverse strengths that such an amendment is likely to impart to many other essential or basic features of our Constitution? We opine that by not undertaking an assessment of such factors we would almost certainly lead to erroneous judgments that would destroy the basic structure of the Constitution. In the present context what is involved is a judicial review of an amendment to the Constitution that seeks to strengthen the egalitarian aspects of our social order. Consequently, the conflict, in the instant case, has to be evaluated in terms of whether disallowing the amendment might damage, significantly, the prospe .....

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..... cess to social and economic resources was rampant and on a massive scale, and that so long as they individually, and the social groups they were a part of, continue to not access to social and economic resources that affords them dignity, they would always be on the margins of the ship, with the ever present danger of falling off that ship and thereby never partaking of the promised goals of that ship. Babasaheb Ambedkar with great foresight remarked that unless such more fundamental inequalities, that foster conditions of injustice, and limit liberty of thought and of conscience, are eradicated at the earliest, the ship itself would be torn apart. 100. In this regard, it was recognized early on as we, as a nation-state, set sail that while revolutionary change, using the force and might of the State, might actually bring about the realization of that state of equality much faster. However, it was also recognized that the violence it would unleash could potentially destroy our nation-state itself, and the end goal may be the creation of a State that would not be conducive for other cherished values of peace, harmony, co-existence, and a democratic set up in which reasoned and reas .....

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..... ct of our Constitution that should always be kept in mind is that various aspects of social justice, and an egalitarian social order, were also inscribed, not as exceptions to the formal content of equality but as intrinsic, vital and necessary components of the basic equality code itself. To the extent there was to be a conflict, on account of scarcity, it was certainly envisaged that the State would step in to ensure an equitable distribution in a manner that would be conducive to common good; nevertheless, if the state was to transgress beyond a certain limit, whereby the formal content of equality was likely to be drastically abridged or truncated, the power of judicial review was to curtail it. However, as long as the policy initiatives of the State were in consonance with principles of equity and justice inherent within the equality code, and indeed even the freedom code, via Article 21's guarantee of the right to life, and for promotion of freedom of expression and thought, especially to promote excellence in our debates and arguments in the political sphere so that democratic richness could be better served, or were framed in pursuance of the Directive Principles of State P .....

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..... eads to inabilities of the organs of the State in discharging their constitutional responsibilities. Powers that have been granted, and implied by, and borne by the constitutional text have to be perforce admitted..." 104. To be sure, powers granted to the State are not unlimited, and indeed our constitutional jurisprudence specifies that Part III is one such zone of limitation. The rigour and discipline of fundamental rights, granted to citizens are to be the checks on the power of the State. Fundamental rights are indeed vital for the survival of our society, and provide guarantees that protect our citizens against totalitarianism, are conducive for full expression of human creativity, and in fact foundational for human dignity. Further, the substance of justice is inscribed into such fundamental rights, that are both substantive and procedural and are available to all the citizens, along with powers granted to the State to realize social justice and real and "in fact" equality of status and opportunity for those who are disadvantaged. Consequently, it cannot be taken to mean that the zone of limitation would then operate to frustrate the obligations of the State, to achieve goa .....

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..... framework of liberal democracy" and further that "[U]nder the Indian Constitution, while basic liberties are guaranteed and individual initiative is encouraged, the State has got the role of ensuring that no class prospers at the cost of other class and no person suffers because of drawbacks which is not of his but social." With regard to distribution of social opportunities and social benefits, Kapadia J. (as he then was) notes that some define "social justice in terms of rights", and some others, like Friedrich Hayek in terms of "desert" without any regard to the relative advantages or disadvantages as between individuals, and some others, socialists, on the basis of needs. With regard to these three different rationale, this Court recognized that all three have to be accommodated under the equality code, with those fulfilling the "desert based" criteria located under formal equality zone, and those fulfilling the "need based" or the "disadvantaged based" criteria under the zone covered by proportional equality. To this we need to add another important point. The critical aspect of the authenticity of constitutional claims of the disadvantaged, on whose behalf State exercises its .....

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..... a part of our constitutional jurisprudence with respect to admissions to private unaided educational institutions. This may be a case of splitting hairs to deny the validity of an over-arching principle. In countless cases, involving the private sector, this Court has held that legislation to achieve social and economic justice cannot be held to be a violation of fundamental rights. (See: State of Karnataka v Ranganatha Reddy(1977) 4 SCC 471) What they could be and ought to be tested on was the anvil of reasonableness of classification, and extent of intrusion, where the Constitution itself did not specifically provide for untrammeled power to completely eliminate the private sector from a particular field of activity. This Court's decisions in M. Nagaraj, and equally importantly, Ashoka Kumar Thakur, have unequivocally held, based on Indra Sawhney, that the concept of egalitarianism is an essential and vital element of the equality code, and in Ashoka Kumar Thakur that principle was applied in the context of education. The Court refused, in Ashoka Kumar Thakur, to look at whether clause (5) of Article 15 as applied to non-minority private unaided colleges would violate the basic .....

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..... ticulated that its goal was to withdraw from such crucial and vital fields, such as higher education, and that it was also not expecting the private sector to carry any of the burdens of ensuring an egalitarian order and realize the goal of social justice in at least some measure, then the dimensions of constitutional litigation on that front could very well have taken a different shape, and questions about whether such actions constitute a fraud on the face of the Constitution could certainly have gained great salience. 109. Certainly, the State has the power under clause (6) of Article 19, to totally or partially exclude the participation of private sector in the field of higher education. As TMA Pai stated, having allowed the private sector into the field of education, including higher education, it would be unreasonable, pursuant to clause (6) of Article 19, for the State to fix the fees and also impose reservations on private unaided educational institutions. Nevertheless, if we take into consideration the width of the original powers under clause (6) of Article 19, one would necessarily have to find that the State would at least have the power to make amendments to the Const .....

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..... the "dismal prognosis of immutable inequality." Meritocracy and Economic Inequality, Oxford University Press. Moreover, it is also very well recognized that markets, instead of eradicating discriminations and disadvantages, may in fact perpetuate the same. (See Cass R. Sunstein, "Free Markets and Social Justice" Oxford University Press (1997), and also Reservation and Private Sector: Quest for Equal Opportunity and Growth, Ed. Sukhadeo Thorat, Aryama and Prasant Negi) Rawat Publications (2005). The falsity of the knee jerk beliefs that markets are necessarily efficient, and will necessarily find optimal and just solutions for all problems, was again provided by the recent global financial crisis. That unregulated laissez faire free markets would only lead to massive market failures, even with respect to those aspects in which markets are supposed to function efficiently, such as wealth generation has to be accepted as a fundamental truth. With respect to other social values and goals, it has also been shown that the complete evisceration of the power of the State to regulate the private sector would lead to massive redistributions of incomes, assets and resources in favour of the .....

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..... At this level of generality, certainly the entire field of "higher education" is to be conceived as an institution informing our national life. The educated youngsters coming out of the portals of our each individual college enter into jobs that may require different degrees of discretionary judgment, which in turn may also affect the lives of other people, including those in socially and educationally disadvantaged groups. Consequently, we have to necessarily hold that Article 38 necessarily includes within its conception of "institutions informing our national life", all institutions that perform the role of imparting higher education. 112. However, we must hasten to add that this conception of social justice is to be found not just in Article 38, in part IV of our constitution. The same concern for social justice is also reflected in Clause 2 of Article 15 which states that: "No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subjected to any disability, liability, restriction or condition with regard to - (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing gh .....

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..... of enumerated grounds and not be worried about the consequences. Another interpretation could be that the private establishment not just refrain from the particular form of overt discrimination but also ensure that the 39 Constituent Assembly Debates - Vol. VII. consequences of rules of access to such private establishments do not contribute to the perpetration of the unwarranted social disadvantages associated with the functioning of the social, cultural and economic order. Whether sub-clause (a) of clause (2) of Article 15 is self-executory or not is irrelevant in the context of reservations. If the State does enact "special provisions" for the advancement of socially and educationally backward classes, it does so in order to prevent the perpetuation of social and educational backwardness in certain classes of people generation after generation. 114. If a publicly offered service follows a particular rule that achieves the same or similar consequences as the proscribed discrimination, and tends to perpetuate the effects of such discrimination, then it would violate the principle of substantive equality. In the case of admissions to colleges, it is an acknowledged fact, in both T .....

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..... ement of competence, grading as between similarly situated and provisioned individuals would reflect both true talents and also individual variations in behaviour such as hard work, diligence, the ability to overcome challenges etc. 115. Even if one were to assume that at some conceivable level, some youngsters from Socially and Educationally Backward Classes or Scheduled castes and Scheduled Tribes are actually relatively less proficient, at the entry point, than those belonging to the upper crust of India, there could be other mitigating factors. It is perfectly plausible to assume that youngsters who were socially deprived of appropriate scholastic content in earlier years, do make it up and narrow the gap over time. Introduction in Meritocracy and Economic Inequality, ed by Arrow, Samuel Bowles and Steven Durlauf. 116. In addition, there are many other advantages that one could conceptualise that could emanate from social redistribution, of access to higher education, including professional education, in favour of disadvantaged groups. One talks about a knowledge economy that requires us to continuously ensure that we push the brightest amongst all of us to the top or be avai .....

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..... ; nevertheless, we would also need to be careful in assessing whether any decline in standards, if any, has been on account of students in reserved categories entering institutions of higher education, or on account much wider systemic weaknesses in the field of higher education, including the way our universities are managed, and the levels of research conducted or not conducted. Without separating such causal factors, it would be constitutionally impermissible, and indeed unethical to lay the blame for any loss of academic standards on students in reserved categories. 118. Setting aside the question of whether candidates who have been enabled to secure admission to professional colleges have participated in innovation in the high tech context, we also address a more fundamental issue. The very notion of innovation implicit in such arguments reveals a fundamental flaw. Innovation occurs across diverse fields, in diverse contexts, and with respect to diverse social needs. Two aspects need to be recognized in this. There is a fundamental distinction between invention and innovation. An invention is a new technical solution to a specific technical problem. Joseph Schumpeter Capitali .....

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..... eb interface that allows women to pictorially navigate certain sites to find out the best prices for their produce. To design such a web interface, the designer would need to know the language of the end user, as well as the particular culture, and levels of cultural identification of the end users. Additional factors may also be surmised such as knowledge of cultural variations, particular social mores and problems emanating from such mores. Would a person who has a broad exposure to emerging or new technologies, as well as the level of knowledge that is imparted at graduate level engineering courses, and who is also more aware of the local problems, or community specific problems be in a better position to engage in the innovative tasks appropriate for such a situation? It is entirely conceivable that the youngsters who have entered collegiate level courses, based on reservations, may be more adept at adapting existing technical solutions to particular problems because of their background. Most certainly one could conceive of situations in which such youngsters by virtue of their social backgrounds may be the only ones who would have the knowledge that a problem exists, or the cu .....

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..... uld obviously deepen and enrich the democratic processes of this country, and thereby make it more stable. 121. In a recent judgment, this Court, has explicitly recognized that the meaning and purport of each article of the Constitution has to be gleaned from the text of the article, and also the meaning of that text as it may be further informed and transformed by other provisions in the other parts of the Constitution. The meaning and extent of a fundamental right cannot be gleaned only from the specific text of that particular amendment; rather it needs to be gleaned from the matrices of inter-relationships, with other fundamental rights and provisions in other parts of the Constitution, thereby recognizing the transformations effectuated on each other [GVK Industries Limited (supra)]. In that sense, the nature of judicial review of a constitutional amendment, in which over-arching principles informing all of the fundamental rights have to be gleaned and subjected to the test of abrogation of basic structure, comprises a particular form of constitutional interpretation in which the essences of each of those over-arching principles has to be gleaned and an amendment to the const .....

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..... youngsters, notwithstanding a naturally equal distribution of talent and ability, belonging to disadvantaged groups would be left without access to higher education at all. That would constitute a state of social emergency with a potential for conflagration that would be on an unimaginable scale. 124. Indeed at one level the recommendation of Bhandari J., in Ashoka Kumar Thakur that high quality institutions catering to the primary and secondary schooling needs of socially and educationally disadvantaged groups, and scheduled castes and scheduled tribes have to be increased on a war footing is a sound one. This need has been felt for a long time and yet the State, which a lot of those youngsters might perceive to be in the hands of the upper crust, has not done enough. However, the argument that access to excellent schooling for all our children, including those from disadvantaged backgrounds, ought to be provided cannot be turned on its head, and then used to deny the necessity of reservations in higher education today. Many youngsters from such disadvantaged backgrounds, who are getting into institutions of higher education today on account of reservations, may at best be chara .....

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..... , as enunciated in M. Nagaraj case, and as gleaned from our constitutional jurisprudence, would over come such an impasse. A tautology is one in which the assumption contains all the elements of the conclusion in a logical argument. The tautology in the basic structure review urged upon us is this: Premise 1: Any derogation from any of the essential features of any kind of activity guaranteed freedom under sub-clause (g) of clause (1) of Article 19 would constitute an abrogation of the basic structure of the Constitution; Premise 2: the freedom of unaided educational institutions to not be subject to reservations with respect to admission of students is an essential aspect of the freedom to pursue the occupation of starting, operating, teaching in and managing educational institutions; and ergo, Conclusion: reservations would necessarily destroy the basic structure of the Constitution. 127. The power of tautological arguments is that they sound very reasonable. However, what we should look for is not the reasonableness of the tautological arguments, within the context of the argument itself. Rather, the structure of the tautological arguments have to be examined with respect to th .....

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..... he relationship of that right to be free from reservations in light of the powers granted to the State, under sub-clause (ii) of clause (6) of Article 19 to even abrogate, partially or wholly, the participation of private citizens in any of the activities guaranteed by sub-clause (g) of clause (1) of Article 19. In as much as the issue of the content of the freedoms of non-minority unaided institutions came about collaterally, and were not the main issue under consideration, and notwithstanding the fact that this Court did issue an authoritative ruling with respect to such institutions under sub-clause (g) of clause (1) of Article 19. We also find that this Court did not engage in any discussion with respect to right to life under Article 21, nor to subclause (a) of clause (1) of Article 19 and its impact over all on the principles, and the actual processes, of democracy, which would certainly include within itself the rights of people of all segments, regions and groups to possess the appropriate level of knowledge to be able to debate, discuss and influence social, political and economic choices of institutions. Such choices could have a vast impact on vital aspects that inform r .....

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..... d not only be inapposite, but also lead the Court down the wrong path. 132. In light of the above, we are necessarily compelled to look at those unexamined aspects, including the contents of the very occupation that is guaranteed by sub-clause (g) of clause (1) of Article 19. This is imperative because a test of a constitutional amendment on the anvil of the basic structure doctrine using the "essences of rights" test i.e., the "over-arching principles test" is an entirely different exercise from a mere "unreasonableness test" undertaken by this Court in TMA Pai. 133. This Court, in TMA Pai, declared the establishment of educational institutions by citizens to be an "occupation" as comprehended in the text of sub-clause (g) of clause (1) of Article 19. In doing so, the Court cited approvingly, and extensively, from Corpus Juris Secondum. In particular, the word "occupation" is stated to be a very "comprehensive term, which includes every species of the genus, and encompasses the incidental, as well as the main, requirements of one's vocation, calling, or business." Consequently, it would necessarily mean that in describing "education" as an occupation, the Court, in TMA Pai, cert .....

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..... ic activity. Charity, the basis on which the charitable activity is undertaken, such as the setting up of, managing and operating educational institutions, is defined to include the following meanings: giving voluntarily to those in need, an institution or an organization for helping those in need, kindness & benevolence, tolerance in judging others and love of one's fellow men. In a similar vein, philanthropy involves a love of mankind The Concise Oxford Dictionary (1990). If one were to take a synoptic view of history of mankind, one would realize that educational institutions, as formal structures for learning, were invariably started by the State, or by citizens who had a great love for their fellow human beings. In societies which were homogenous, and not hierarchically ordered, this love extended to all its members. The idea was that equipping as many youngsters as possible with knowledge would strengthen the society, bring in the benefits of enlightenment that darkness, caused by ignorance, prejudices and unfounded beliefs, denies to the individuals as well as the society. No philanthropist, with love for mankind, would want to educate a person who says that he or she wants .....

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..... ught at the stage of secondary school education. The ability to engage with this expanding knowledge, to autodidactically keep pace with such expanding frontiers, is typically provided only at collegiate level.47 This implies that unless access is provided on a wide scale, across all swath of the population, the debates about social, political, economic and technological choices would be uninformed, and therefore also likely to be unreasoned and unreasonable, thereby threatening the democratic process and social integration that is vital for fraternity and unity of the nation threatened. Noting the pernicious influence of marketplace throngs that seek to subordinate the higher status of higher education, Frank Newman, Laura Couturier and Jamie Scurry write that from "the establishment of the first college in America in 1636, there has been an understanding that higher education, though it clearly 47 Learning To Be: The World of Education Today and Tomorrow - Unesco Paris 1972 provides private benefits, also served community needs..... steadily expanded from preparation of young men for leadership.... to preparation of a broad share of population for participation in the workforce a .....

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..... ich are centers of great academic excellence, if those universities, educationists, and their philanthropists who had financed such institutions had stuck to archaic notions of inherent inequality amongst human beings, and insisted only on the demonstrated ability to get high marks. Our students were selected because they had demonstrated an ability to excel within the background of our current socio-economic circumstances, and their academic accomplishments may or may not have been equivalent to what youngsters in similar cohorts in those nations, and indeed all across the World, actually accomplished. It was also felt that it was important for other students in such universities to interact with Indians, learn about our ancient culture, our lives and our circumstances, and view the knowledge they were gleaning from text books, whether sciences, social sciences or humanities, from the perspective of entire humanity, including India. 141. Knowledge is the vital force that unites people. Knowledge is generated in diverse circumstances, in the practical arenas that range from a highly technical and clinical laboratory, to the humble farmer, or a hut dweller eking out a bare subsiste .....

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..... cally unequal, as between groups. Caste, gender, and class still are the structural impediments to the realization of a truly egalitarian society. The inherited social, educational, cultural, political and economic disadvantages of vast swaths of humanity in our country are propagated across generations. A system that predominantly results in giving access to only certain groups would necessarily work towards sustenance of those inequalities. This will have an immediate, and necessarily, a deleterious impact on the quality of our social and political discourse, in our assessment of the problems that our society confronts and which of those problems ought to be prioritized for social action. It will also hinder the development of abilities amongst students graduating from those gated institutions of higher education that are vital to be able to interact with other Indians, less fortunate than themselves and treating them with respect, and in the application of their knowledge for the betterment of communities, and larger society around themselves. Reservations, for socially and educationally backward classes and Scheduled Castes and Scheduled Tribes, would ensure that students from .....

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..... s them too. The task of education, as a cultural action for freedom, is to promote the establishment of a truly humanized society. It pays to quote Paulo Freire extensively from his work "Pedagogy of the Oppressed" Continuum, New York (30th Anniversary Edition, 2005): "While the problem of humanization has always, from an axiological perspective, been humankind's central problem, it now takes the character of an inescapable concern. Concern for humanization leads at once to the recognition of dehumanization, not only as an ontological possibility but as an historical reality. And as an individual perceives the extent of dehumanization, he or she may ask if humanization is a viable possibility. Within history, in concrete, objective contexts, both humanization and dehumanization are possibilities for a person as an uncompleted being conscious of their incompletion..... But while humanization and dehumanization are real alternatives, only the first is the people's vocation. This vocation is constantly negated, yet it is affirmed by that very negation. It is thwarted by injustice, exploitation, oppression, and the violence of the oppressors; it is affirmed by the yearning of the opp .....

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..... ould necessarily perpetuate the conditions of lack of access to knowledge that can transform the praxis of socially and educationally disadvantaged groups. The occupation they would be engaging in would be imbued with "false charity." For the past two decades, this country has been in the throes of early "amor" with the false but mesmerizing promises of laissez faire free markets, liberalization, privatization and globalization. The State, in the throes of that false passion, believed that it would lead to generation of such wealth, that it could then take on the task of providing access to higher education to hitherto excluded classes and groups. However, that promise has turned out to be false and a mirage. It is now apparent to the State that denial of access to higher education, to socially and educationally backward classes, and Scheduled Castes and Scheduled Tribes, would potentially be dangerous to the ship of our nation, the Constitution. The 93rd Amendment, by necessitating a wider analysis of different facets of our constitutional constructs, and the ontology that it is based on, has revealed new dimensions of understanding our past, present, and how we might approach the .....

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..... d teach only those who belong to socially and educationally advanced groups, would be a curse on our constitutional project. The fact that non-minority unaided educational institutions insist on "social disadvantages blind" admission policies is proof that they are not recognizing the true purpose of education as an occupation. Hence, State intervention is a categorical imperative, both morally and within our constitutional logic. 147. In light of the above, we hold that the claimed rights of non-minority educational institutions to admit students of their choice, would not only be a minor right, but if that were in fact a right, if exercised in full measure, that would be detrimental to the true nature of education as an occupation, damage the environment in which our students are taught the lessons of life, and imparted knowledge, and further also damage their ability to learn to deal with the diversity of India, and gain access to knowledge of its problems, so that they can appreciate how they can apply their formal knowledge in concrete social realities they will confront. 148. Consequently, given the absolute necessity of achieving the egalitarian and social justice goals tha .....

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