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October 10, 2009

Dear Vice Chancellor / Director

The India EU Study Centre Programme has announced on 1st October ‘Call for Expression of Interest’ from Indian and EU institutions of Higher Education to strengthen existing EU Study Centres in India and Modern India Study centres in the European Union. 

I am forwarding the mail received from Mr Ulrich Podwils of the India EU Study Centre programmes.  A web link has also been given.  You may kindly browse the website, for more information.

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Yours sincerely,

(Prof. Beena Shah)


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R.G.Nair                                                                                                                                Embassy of India

First Secretary (E&C)                                                                                                     37-3, Hannam Dong  

Seoul - 140210

                                                                       Tel: (82 2) 798 4257, 792 2653

        Fax: (82 2) 796 9534




No.SEO/327/1/2005                                                                                                   12th September, 2005   



            The Under Secretary,

            Association of Indian Universities,

            AIU House, 16- Kotla Marg,

            New Delhi - 110002


            Shingu College, an independent Vocational Education Institute located in the Gyeonggi Province of the Republic of Korea has approached this Embassy for academic relationships with appropriate Indian College or University for educational exchanges.


            A copy of their communication along with detailed profile of the College is forwarded herewith, which may please be circulated among Institutions in India, so that interested Institutions may directly contact Mr. Kim, Moon-Kang, Development Planning Team, Shingu College, 2685-Geumkwang-2 dong, Jungwon-gu, Seongnam,-si, Republic of Korea-462-743 (Tel: 0082-31-740-1277; Fax: 0082-31-740-1209) for further negotiations before an appropriate agreement is entered into with the College.


            This Embassy may also please be kept informed of progress in this respect.

               Yours faithfully,  


First Secretary (E&C)








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


P.A. Inamdar & Ors.                                                                                                                                ... Appellants


State of Maharashtra & Ors.                                                                                                                    ... Respondents


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



R.C. Lahoti, CJI



Leave granted in all SLPs.

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


The prophecy has come true and while the ink on the opinions in Pai Foundation was yet to dry, the High Courts were flooded   with   writ petitions, calling   for   settlements   of several issues which were not yet resolved or which propped on floor, post   Pai Foundation.      A   number   of   Special   Leave Petitions against interim orders passed by High Courts and a few writ   petitions   came   to   be   filed   directly   in   this   Court.   A Constitution Bench sat to interpret the 11-Judge Bench decision in   Pai Foundation   which it did vide its judgment   dated 14.8.2003 (reported as - Islamic Academy of Education & Anr.   v.   State  of Karnataka  & Ors.,  (2003)   6   SCC  697; "Islamic   Academy"   for   short).    The    11    learned   Judges constituting   the   Bench   in   Pai   Foundation   delivered   five opinions.   The   majority   opinion   on   behalf   of   6   Judges   was delivered by B.N. Kirpal, CJ.   Khare, J (as His Lordship then was) delivered a separate   but concurring   opinion, supporting the majority.   Quadri, J, Ruma Pal, J and Variava, J (for himself and Bhan, J) delivered three separate opinions partly dissenting from the majority.   Islamic Academy too handed over two opinions. The majority opinion for 4 learned Judges has been delivered by V.N. Khare, CJ.  S.B. Sinha, J, has delivered a separate opinion.


            The events following Islamic Academy judgment show that some of the main questions have remained unsettled even after the exercise undertaken by the Constitution Bench in Islamic Academy in clarification of the 11-Judge Bench decision in Pai Foundation. A few of those unsettled questions as also some aspects of clarification are before us calling for settlement by this Bench of 7 Judges which we hopefully propose to do.

Pai Foundation and Islamic Academy have set out the factual backdrop of the issues leading to the formulation of 11-Judge and 5-Judge Benches respectively. For details thereof a reference may be made to the reported decisions. A brief summary of the past events, highlighting the issues as they have travelled in search of resolution would be apposite.




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


Education has since long been a matter of litigation. Law reports are replete with rulings touching and centering around education in its several aspects.  Until Pai Foundation, there were four oft quoted leading cases holding the field of education. They were Unni Krishnan v. State of Andhra Pradesh (1993) 1 SCC 645, St. Stephen's College  v. University of Delhi (1992) 1 SCC 558, Ahmedabad St. Xavier's College Society v. State of Gujarat (1974) 1 SCC 717    and In Re: Kerala Education Bill, 1957, (1958) SCR 995.   For convenience sake, these   cases   will be referred to as Unni Krishnan, St. Stephen's, St. Xavier's and Kerala Education Bill respectively.  All these cases amongst others came up for the consideration of this Court in Pai


            Correctness of the decision in St. Stephen's was doubted during the course of hearing of Writ Petition No. 350 of 1993 filed by Islamic  AcademyAs St. Stephen's  is a pronouncement of   5-Judge Bench, the matter was directed to be placed before 7-Judge Bench.

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


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


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

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

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


 Eleven   Questions   and    Five   Heads   of   Issues   in   Pai Foundation

In Pai Foundation, 11 questions were framed for being answered. Detailed submissions were made centering around the 11 questions. The Court dealt with the questions by classifying the discussion under the following five heads:


1.        Is   there   a   fundamental   right   to   set   up   educational institutions and if so, under which provision?

2.        Does Unni Krishnan require reconsideration?

3.        In case of private institutions, can there be government regulations and, if so, to what extent?

4.        In   order to determine the existence of a religious or linguistic minority in relation to Article 30, what is to be the unit - the State or the country as a whole?

5.        To what extent can the rights of aided private minority institutions to administer be regulated?


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


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

A.         Linguistic and religious minorities are covered by the expression "minority" under Article 30 of the Constitution. Since reorganization of the States in India has been on linguistic lines, therefore, for the purpose of determining the minority, the unit will be the State and not the whole of India. Thus, religious and linguistic minorities, who have been put on a par in Article 30, have to be considered Statewise.

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

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

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


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

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

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

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

A. Admission of students to unaided minority educational institutions viz. schools and undergraduate colleges where the scope for merit-based selection is practically nil, cannot be regulated by the State or university concerned, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards.

[emphasis by us]

The right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution, the State Government or the university may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of.  The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it is more so in the matter of admissions to professional institutions.

[emphasis by us]


A minority institution does not cease to be so, the moment grant-in-aid is received by the institution. An aided minority educational institution, therefore, would be entitled to have the right of admission of students belonging to the minority group and at the same time, would be required to admit a reasonable extent of non-minority students, so that the rights under Article 30(1) are not substantially impaired and further the citizens' rights under Article 29(2) are not infringed. What would be a reasonable extent, would vary from the types of institution, the courses of education for which admission is being sought and other factors like educational needs.  The State Government concerned has to notify the percentage of the non-minority students to be admitted in the light of the above observations.  Observance of inter se merit amongst the applicants belonging to the minority group could be ensured.  In the case of aided professional institutions, it can also be stipulated that passing of the common entrance test held by the State agency is necessary to seek admission.  As regards non-minority students who are eligible to seek admission for the remaining seats, admission should normally be on the basis of the common entrance test held by the State agency followed by counselling wherever it exists.


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


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

Q.5(b) Whether the minority institutions' right of admission of students and to lay down procedure and method of admission, if any, would be affected in any way by the receipt of State aid?

A. While giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe bye - rules or regulations, the conditions on the basis of which admission will be granted to different aided colleges by virtue of merit, coupled with the reservation policy of the State qua non-minority students. The merit may be determined either through a common entrance test conducted by the university or the Government concerned followed by counselling, or on the basis of an entrance test conducted by the individual institutions - the method to be followed is for the university or the Government to decide. The authority may also devise other means to ensure that admission is granted to an aided professional institution on the basis of merit. In the case of such institutions, it will be permissible for the Government or the university to provide that consideration should be shown to the weaker sections of the society.


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

A. So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to a university or board have to be complied with, but in the matter of day-to-day management, like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself.

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

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


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


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


Q.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?


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


Q. 6. (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-à-vis such institution?


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


Q.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?


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

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


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


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


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


Q.10. Whether the non-minorities have the right to establish and administer educational institution under Articles 21 and 29(1) read with Articles 14 and 15(1), in the same manner and to the same extent as minority institutions?


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

A. The expression "education" in the articles of the Constitution means and includes education at all levels from the primary school level up to the postgraduate level.   It   includes professional education. The expression "educational institutions" means institutions that impart education, where "education" is as understood hereinabove.

            The right to establish and administer educational institutions is guaranteed under the Constitution to all citizens under Articles 19(l)(g) and 26, and to minorities specifically under Article 30.


            All citizens have a right to establish and administer educational institutions under Articles 19(l)(g) and 26, but this right is subject to the provisions of Articles 19(6) and 26(a).  However, minority institutions will have a right to admit students belonging to the minority group, in the manner as discussed in this judgment."


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


Pai Foundation explained in Islamic Academy

Pai Foundation Judgment was delivered on 31.10.2002. The Union of India, various State Governments and the Educational Institutions, each understood the majority judgment in its own way. The State Governments embarked upon enacting laws and framing the regulations, governing the educational institutions in consonance with their own understanding of Pai Foundation. This led to litigation in several Courts. Interim orders passed therein by High Courts came to be challenged before this Court.  At the hearing, again the parties through their learned counsel tried to interpret the majority decision in Pai Foundation in different ways as it suited them. The parties agreed that there were certain anomalies and doubts, calling for clarification. The persons seeking such clarifications were unaided professional educational institutions, both minority and non-minority.  The Court formulated four questions as arising for consideration in view of the rival submissions made before the Court in Islamic Academy:

"(1)   whether the educational institutions are entitled to fix their own fee structure;

(2)       whether minority and non-minority educational institutions stand on the same footing and have the same rights;

(3)       whether private unaided professional colleges are entitled to fill in their seats, to the extent of 100%, and if not, to what extent; and

(4)       whether private unaided professional colleges are entitled to admit students by evolving their   own method of admission."


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

(1) Each minority institution is entitled to have its own fee structure subject to the condition that there can be no profiteering and capitation fees cannot be charged.  A provision for reasonable surplus can be made to enable future expansion. The relevant factors which would go into determining the reasonability of a fee structure, in the opinion of majority, are:


(i) the infrastructure and facilities available, (ii) the investments made, (iii) salaries paid to the teachers and staff, (iv) future plans for expansion and betterment of the institution etc.


            S.B. Sinha, J, defined what is 'capitation' and 'profiteering' and also said that reasonable surplus should ordinarily vary from 6 per cent to 15 per cent for utilization in expansion of the system and development of education.


(2) In the opinion of the majority, minority institutions stand on a better footing than non-minority institutions.  Minority educational institutions have a guarantee or assurance to establish and administer educational institutions of their choice.  State  Legislation,   primary  or delegated,  cannot favour  non- minority  institution   over minority  institution.     The difference arises because of Article 30, the protection whereunder is available to minority educational institutions only.   The majority opinion called it a "special right" given under Article 30.


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


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


(3)&(4). Questions 3 and 4 have been taken up for consideration together. A reading of the opinion recorded in Islamic Academy shows that paras 58, 59 and 68 of Pai Foundation were considered and sought to be explained.  It was not very clear as to what types of institutions were being dealt with in the above referred to paragraphs by the majority in Pai Foundation. Certainly, distinction was being sought to be drawn between professional colleges and other educational institutions (both minority and unaided).  Reference is also found to have been made to minority and non-minority institutions. At some places, observations have been made regarding institutions divided into groups only by reference to aid, that is whether they are aided or unaided educational institutions without regard to the fact whether they were minority or non-

minority institutions. It appears that there are a few passages/sentences wherein it is not clear which type of institutions the majority opinion in Pai Foundation was referring to thereat. However, the majority opinion in Islamic Academy has by explaining Pai Foundation held as under:

(1)            In professional institutions, as they are unaided, there will be full autonomy in their administration, but the principle of merit cannot be sacrificed, as excellence in profession is in national interest.

(2)            Without interfering with the autonomy of unaided institutions, the object of merit based admissions can be secured by insisting on it as a condition to the grant of recognition and subject to the recognition of merit, the management can be given certain discretion in admitting students.

(3)            The management can have quota for admitting students at its discretion but subject to satisfying the test of merit based admissions, which can be achieved by allowing management to pick up students of their own choice from out of those who have passed the common entrance test conducted by a centralized mechanism.    Such common entrance test can be conducted by the State or by an association of similarly placed institutions in the State.

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

(5)       The prescription for percentage of seats, that is allotment of different quotas such as management seats, State's quota, appropriated by the State for allotment to reserved categories etc., has to be done by the State in accordance with the "local   needs" and the interests/needs of that minority    community    in    the    State, both    deserving paramount   consideration.   The   exact   concept   of  "local needs" is not clarified. The plea that each minority unaided educational institution can hold its own admission test was expressly overruled.   The principal consideration which prevailed with the majority in   Islamic Academy for holding in favour of common entrance test was to avoid great hardship and incurring of huge cost by the hapless students in appearing for individual   tests of various colleges.

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

S.B. Sinha, J, in his separate opinion, agreed with the majority that the merit and merit alone should be the basis of selection for the candidates. He also agreed that one single standard for all the institutions was necessary to achieve the object of selection being made on merit by maintaining uniformity of standard, which could not be left to any individual institution in the matter of professional courses of study. However, the merit criterion in the opinion of Sinha, J, was required to be associated with the level of education. To quote his words: "the merit criterion would have to be judged like a pyramid. At the kindergarten, primary, secondary levels, minorities may have 100% quota. At this level the merit may not have much relevance at all but at the level of higher education and in particular, professional education and postgraduate-level education, merit indisputably should be a relevant criterion. At the postgraduation level, where there may be a few seats, the minority institutions may not have much say in the matter. Services of doctors, engineers and other professionals coming out from the institutions of professional excellence must be made available to the entire country and not to any particular class or group of people. All citizens including the minorities have also a fundamental duty in this behalf."


Before we part with the task of summing up the answers given to the four questions in Islamic Academy, we would like to make a few observations of ours in this regard. First, the majority opinion spread over 30 printed pages, and the minority opinion spread over 60 printed pages, both though illuminating and instructive, have nonetheless not summed up or pointedly answered the questions. We have endeavoured to cull out and summarize the answers, noted above, as best and as briefly as we could from the two opinions. We would, therefore, hasten to add that in order to fully appreciate the ratio of the two opinions, they have to be read in detail and our attempt at finding out and placing in a few chosen words the ratio decidendi of the two separately recorded opinions, is subject to this limitation. However, we shall make a reference to relevant passages from the two opinions as and when it becomes necessary. A point of significance which we would like to briefly note here itself, a detailed discussion being relegated to a later part of this judgment, is that the opinion of S.B. Sinha, J, has examined in detail, the scope of protection conferred on minority institutions by reference to their right to seek recognition or affiliation, an aspect of wider significance which does not seem to have received consideration with that emphasis either in Pai Foundation   or in the majority opinion in Islamic Academy.   We shall revert to this aspect a little later.



Issues herein

A Few Preliminary observations

Before we embark upon dealing with the issues posed before us for resolution, we would like to make a few preliminary observations as a preface to our judgment inasmuch as that would outline the scope of the controversy with which we are actually dealing here. At the very outset, we may state that our task is not to pronounce our own independent opinion on the several issues which arose for consideration in Pai Foundation. Even if we are inclined to disagree with any of the findings amounting to declaration of law by the majority in Pai Foundation, we cannot; that being a pronouncement by 11-Judge Bench, we are bound by it. We cannot express a dissent or disagreement howsoever we may be inclined to do so on any of the issues. The real task before us is to cull out the ratio decidendi of Pai Foundation and to examine if the explanation or clarification given in Islamic Academy runs counter to Pai Foundation and if so, to what extent. If we find anything said or held in Islamic Academy in conflict with Pai Foundation, we shall say so as being a departure from the law laid down by Pai Foundation and on the principle of binding efficacy of precedents, over-rule to that extent the opinion of the Constitution Bench in Islamic Academy.


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


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

            Since the direction made in Islamic Academy for appointment of the Committees has been vehemently assailed during the course of hearing before us, we would extract from the judgment in Islamic Academy the following two passages wherein, in the words of Khare, CJ, the purpose and the constitution of the Committees, the powers conferred on and the functions enjoined upon them are given:


"……we direct that in order to give effect to the judgment in T.M.A. Pai  case   the respective State Governments/concerned authority shall set up, in each State, a committee headed by a retired High Court Judge who shall be nominated by the Chief Justice of that State. The other member, who shall be nominated by the Judge, should be a Chartered Accountant of repute. 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 the total number of members of the Committee shall not exceed five. 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 liberty to apply for revision. Once fees are fixed by the Committee, the institute cannot charge either directly or indirectly any other amount over and above the amount fixed as fees.  If any other amount is charged, under any other head or guise e.g. donations, the same would amount to charging of capitation fee. The Governments/appropriate authorities should consider framing appropriate regulations, if not already framed, whereunder if it is found that an institution is charging capitation fees or profiteering that institution can be appropriately penalised and- also face the prospect of losing its recognition/affiliation, (para 7)


We now direct that the respective State Governments do appoint a permanent Committee which will ensure that the tests conducted by the association of colleges is 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 is 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 the 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 the University in that State so that the total number of persons on the Committee do not exceed five. The Committee shall have powers to oversee the tests to be conducted by the association. This would include the power to call for the proposed question paper(s), to know the names of the paper-setters and examiners and to check the method adopted to ensure papers are not leaked. The Committee shall supervise and ensure that the test is conducted in a fair and transparent manner. The Committee shall have the powers to permit an institution, which has been established and which has been permitted to adopt its own admission procedure for the last, at least, 25 years, to adopt its own admission procedure and if the Committee feels that the needs of such an institute are genuine, to admit, students of their community, in excess of the quota allotted to them by the State Government. Before exempting any institute or varying in percentage of quota fixed by the State, the State Government must be heard before the Committee. It is clarified that different percentage of quota for students to be admitted by the management in each minority or non-minority unaided professional college(s) shall be separately fixed on the basis of their need by the respective State Governments and in case of any dispute as regards fixation of percentage of quota, it will be open to the management to approach the Committee. It is also clarified that no institute, which has not been established and which has not followed its own admission procedure for the last, at least, 25 years, shall be permitted to apply for or be granted exemption from admitting students in the manner set out hereinabove. (para 19)"

Sinha, J. has not specifically spoken of the Committees. Nevertheless he made a reference to these Committees in his opinion and thus impliedly recorded his concurrence with the constitution of these Committees.

Vide para 20, the Constitution Bench has made it clear that the setting up of two sets of Committees in the States has been directed in exercise of the power conferred on this Court by Article 142 of the Constitution and such Committees "shall remain in force till appropriate legislation is enacted by Parliament". Although the term 'permanent' has been used, but it appears to us that these Committees are intended to be transitory in nature.


Reference for constituting a Bench of a Coram higher than Constitution Bench


These matters have been directed to be placed for hearing before a Bench of seven Judges under Orders of the Chief Justice of India pursuant to Order dated July 15, 2004 in P.A. Inamdar and Ors. v. State of Maharashtra and Ors., (2004) 8 SCC 139 and Order dated July 29, 2004 in Pushpapiri Medical Society v. State of Kerala and Ors., (2004) 8 SCC 135. The aggrieved persons before us are again classifiable in one class, that is, unaided minority and non-minority institutions imparting professional education. The issues arising for decision before us are only three:

(i)    the fixation of 'quota' of admissions/ students in respect of unaided professional institutions;


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


(iii)    the fee structure.


The questions spelled out by Orders of Reference

In the light of the two orders of reference, referred to hereinabove, we propose to confine our discussion to the questions set out hereunder which, according to us, arise for decision: -

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


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


(3)      Whether Islamic Academy could have issued guidelines in the matter of regulating the fee payable by the students to the educational institutions?


(4)      Can the admission procedure and fee structure be regulated or taken over by the Committees ordered to be constituted by Islamic Academy?


The issues posed before us are referable to headings 3 and 5 out of 'five headings' formulated by Kirpal, CJ in Pai FoundationSo also speaking by reference to the 11 questions framed in Pai Foundation, the questions and answers relevant for us would be referable to question Nos. 3 (b), 4, 5 (a) (b) (c) and (9).


Submissions made

A number of learned counsel addressed the Court at the time of hearing raising very many issues and canvassing different view-points of law referabl

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