INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA & ORS.

A strict lexicographical arrangement of sub-clauses, one after the other, ought not to be taken to mean that the one following is of lesser importance.

37Copy pinpoint37. Reading Section 12 of Delhi Act of 2007 synoptically, we find that Sub-section (2) of Section 12 pervades the entire 8 space of how seats are to be allocated. In fact, the preamble to the Act, states that it is being enacted to provide for "allotment" of seats to "Scheduled Castes, Scheduled Tribes . . .. . ... and other measures to ensure equity and excellence in professional education in the National Capital Territory of C Delhi" (emph. Supp.). Consequently, it must be read that sub- section (2) of Section 12 is one of the primary sections of the Act and that it would act upon the provisions of Sub-section (1) of Section 12. Sub-section (2) of Section 12 provides that with respect to seats in sub-section (1) of Section 12, an institution D shall reserve as provided for in sub-sections (a), (b) and (c) of sub-section (2) of Section 12 that follow. Clearly the phrase "[l]n the seats mentioned in sub-section (1)" at the beginning of sub- section (2) of Section 12 reveals the intent of the legislature that the specific reservations provided for Scheduled Castes and E 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 F 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. G

38Copy pinpoint38. 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 H

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& ORS. [B.SUDERSHAN REDDY, J.] 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 of the Act by the legislature of NCT of Delhi with respect to Scheduled Castes and Scheduled Tribes and any other Backward Classes and other constitutionally permissible classes? Logically in accordance with the interpretation of the Division Bench, the benefits intended to be provided to students belonging to various weaker segments and thereby achieve greater social welfare through achievement of broader goals of social justice c by the legislature would be obliterated. This would be tantamount to grant of powers to set at nought a poliCJ specifically enacted by the legislature, thereby turning on its . head, as it were, every known principle of our constitutional law.

39Copy pinpoint39. Furthermore, by permitting ACMS to admit only students of wards of army personnel, notwithstanding the fact there could be others who have taken the common entrance test, and have secured more marks than the wards of Army personnel, the exemptions granted by Delhi Government also set at naught the legislative intent to ensure excellence by mandating that all admissions be made on the basis of inter- se merit within each of the categories of students. The general category would comprise of all students who have taken the common entrance test, and other wise satisfy the conditions of sub-section (1) of Section 12 of the Delhi Act 80 of 2007, after the seats reserved pursuant to sub-section (2) of Section 12 are reserved i.e., allocated for the described constitutionally permissible categories therein. The said Act clearly specifies that its objective is to achieve excellence, and one of the methods specified to achieve the same is of admitting students on the basis of inter-se merit in each of the categories specified in Section 12. The grant of permission to ACMS to admit students who may have scored lower marks than others, both within the general category and also in the reserved categories, results in defeat of the aims, objects and purposes of the Act, H

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A and the entire fabric and scheme of the Act gets frustrated. Nowhere in the Act do we find any powers granted to the government to not implement the Act. Nor does the Act state anywhere that the Government of Delhi could suspend the implementation of the provisions with respect to reservations B for weaker segments, and also simultaneously give the merit of the students scoring higher marks than wards of Army personnel a go by. To put it pithily, 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. c 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 D 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 E 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, F the executive has to be answerable to the legislature. That is why it has been stated in no uncertain terms, that while we do not follow a strict separation of powers as in the United States, executive functions have been deemed to be what remain after legislative and judicial function have been taken away. (See G Ram Jawaya Kapur v. State of Punjab 10 ) Further, the c1ted portion of Article 162 has been interpreted by this Court to mean that the State Executive has the power to make any regulation or order which shall have the effect of law so long as it does not contravene any legislation by the State

H 10. AIR 1955 SC 549: (1955) 2 SCR 225.

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& ORS. [B.SUDERSHAN REDDY, J.] Legislature already covering the field. (See State of A.P. v. A Lavu11 ) In the instant case, the legislature of NCT of Delhi has specifically set out a clear policy with respect to reservations for Scheduled Castes and Scheduled Tribes and other weaker sections of the population. The duty of the executive is to implement that policy, and not to abrogate it. B

41Copy pinpoint41. The Government of Delhi also seeks to claim legitimacy of the decision by the Cabinet of Delhi and the Notification by Lieutenant Governor granting ACMS permission to admit 100% of the seats to wards of army personnel to the text of sub-section (b) of sub-section (1) of Section 12. The C interpretation of the said sub-section sought to be pressed upon us is as follows: That the first part of said sub-section ought to be read as "eighty five percent of the total seats except the management seats, shall be allocated for Delhi students and the remaining 15% percent of seats for outside Delhi students", D followed by an "or", and then the second part "such other allocation as the Government by notification in the Official Gazette Direct". Such an interpretation it is claimed gives the government the power to vary the entire allocation of seats, and therefore the exemption granted by it to ACMS to admit only wards of Army personnel ought to be upheld.

42Copy pinpoint42. We simply fail to see how. At bes!,_even if we were to accept, arguendo, the interpretation pressed into service by the Government of Delhi, the best result that would follow would be that Government of Delhi has been given the power to vary the allocation of seats between Deln'i and non-Delhi students, belonging to all sections and within the broadest class of those who have taken the common entrance test and qualified. It cannot be read to mean that a power has been granted to G Government of Delhi to create entire 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

11. (1971) 1 sec 607. H

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A the categories of Delhi or non- Delhi students.

43Copy pinpoint43. 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 8 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" C 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 maximum of 15%. Apart from the above grammatical construction, we are led to such an understanding for additional reasons. This is the legislature of Delhi, that is legislating for the denizens of NCT of Delhi, with a primary responsibility for their welfare. Further, in as much as clause (a) of sub-section (2) of Section 12 provides that 17% of seats be reserved for Scheduled Castes, 1% of seats be reserved for Scheduled Tribes, and an unspecified percentage of seats be reserved for other Backward classes who are also denizens of Delhi, the legislature of Delhi would have taken into account the needs of Scheduled Castes and Scheduled Tribes in Delhi. The discretion to vary the 15% reserved for non-Delhi citizens was in all likelihood to enable the Government of Delhi to increase the percentage of seats allocated to denizens of Delhi, in the event a sizeable number of other backward classes of students also need to be accommodated in the professional colleges of Delhi. By fixing a number, 15%, for non-Delhi students, the legislature intended to set a maximal limit on the number of non- Delh i students who could be admitted, and specified the H

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& ORS. [B.SUDERSHAN REDDY, J.] percentage of seats that could be allocated to Scheduled A Castes, Scheduled Tribes and other weaker sections which could be reduced in the event that Government of Delhi needed to accommodate the special exigencies of the needs of denizens of Delhi, including but not limited to its backward classes. B

44Copy pinpoint44. The Government of Delhi has also claimed that a distinction needs to be drawn between "allocation" as used in sub-section (1) of Section 12 and "reservation" as used in sub- section (2) of Section 12. The claim of Government of Delhi is C that the power to "allocate" between Delhi and non-Delhi students or some other classes is prior to "reservation" of seats as between general category of students, and moreover that such an allocation would mean a power to allocate all the seats not just to non-Delhi students, but even an entirely new class. D I This plea of Government of Delhi is untenable and unsustainable as the same is not supported by any of the provisions of the Delhi Act 80 of 2007 and in fact runs counter . to them. One of primary purposes of the act, the goal that it seeks to achieve, is described in terms of "allotment" of seats to Scheduled Castes, Scheduled Tribes and other weaker segments. The word allot, in its verb form, is defined by the Concise Oxford Dictionary 12 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

12. Eight Edition, Oxford University Press (1990). H

656 SUPREME COURT REPORTS [20111 6 S.C.R.

A 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 B delineate the seats to be allotted to Scheduled Castes and Scheduled Tribes and other weaker sections and constitutionally permissible classes, implies that we cannot infer from the use of the word "allotment" in sub-section (1) of Section 12, the kind of power claimed to vary allotment in clause (b) of c sub-section (1) of Section 12 as provided therein and thereby also set at naught the intent of legislature of Delhi to allot seats for Scheduled Castes, Scheduled tribes, and other weaker sections, and further, also set at naught its intent that at least 85% of seats that remain after 10% of management seats are D set aside, be allocated to students of Delhi, also be set at naught. Consequently, the defense by Government of Delhi of the exemptions it granted to ACMS, on the use of different words, allotment in sub-section (1) of Section 12, and reservations in sub-section (2) of Section 12, also fails.

45Copy pinpoint45. Thus we find that the exemption granted by the Government of Delhi allowing ACMS to fill 100% of its seats by wards of army personnel violates the basic principles of democratic governance, of the constitutional requirement that eicecutive implement the specific and mandatory policy F legislated by the legislature, and violates the provisions of Delhi Act 80 of 2007. In fact, the actions of the Government of Delhi, for the aforesaid reasons are wholly arbitrary, without any basis in law, and ultra vires. Section 14 of the said Act specifies that any admission made in contravention of the provisions of the G Act or the rules made thereunder, shall be void, and further Section 18 provides that those making admissions in contravention of the provisions of Delhi Act 80 of 2007 may be punished by imprisonment up to three years or a fine up to Rupees one Crore or both. Such provisions clearly demonstrate H the intent of the legislature that its policy, as specified in the

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& ORS. [B.SUDERSHAN REDDY, J.] Act, and the purposes of the Act, not be derogated from in any manner. The said provisions of the Act are mandatory in nature. The Government of Delhi has clearly acted on the basis of a misplaced belief of its powers, under the Act, a misunderstanding of the statutory language of the Act, and its relevant provisions, and also in complete contravention of constitutional principles.

46Copy pinpoint46. In light of the above, we have to hold that Delhi Act 80 of 2007, and Section 12, including both sub-sections (1) and (2) are clearly applicable, with respect to admission of students to ACMS.

Substantive Questions:

Question 3: D

47Copy pinpoint47. 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?

48Copy pinpoint48. 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.

49Copy pinpoint49. 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. lnamdar, stands for the propositions that (a) the rights of non-minority 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 H

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A hence (b) non-minority professional educational institutions, such as ACMS, should be deemed to have the right to define their own "source" from within the general pool of students taking the common entrance test, so long as the classification is not based on any of the constitutionally impermissible basis' B such as religion, race, caste, place of birth or sex. Further, it was also contended that in as much as the admission policy thereafter proceeds in a transparent, fair and non-exploitative manner, the admission policy of ACMS should be upheld. Additionally it was also submitted by the learned Senior c Counsel that allowing ACMS to pursue such an admission policy would be in the national interest.

50Copy pinpoint50. At this stage we wish to make a necessary and a primordially important observation that has troubled us right throughout this case. The primordial premise of the arguments D by unaided educational institutions in claiming an ability to choose students of their own choice, in case after case before this court, was on the ground that imposition of reservations by the State would impede their right to choose the most meritorious on the basis of marks secured in an objective test. E It would appear that, having unhorsed the right of the State to impose reservations in favor of deprived segments of the population, even though such reservations would be necessary to achieve the Constitutionally mandated goals of social justice and an egalitarian order, unaided institutions are now seeking F to determine their own delimited "sources" of students to the exclusion of everybody else. The fine distinctions made by learned Senior Counsel, Mr. Jaideep Gupta, that an allocation when made by the State is reservation, as opposed to allocations made by private educational institutions in selecting G a source do not relate to the fundamental issue here: when the state delimits, and excludes some students who have secured more marks, to achieve goals of national importance, is sought to be projected as contrary to Constitutional values, and impermissibly reducing national welfare by allowing those with H lesser marks to be selected into professional colleges; and at

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& ORS. [B.SUDERSHAN REDDY, J.] · the same time, such a delimitation by a private educational institution, is supposedly permissible under our Constitution, and we are not then to ask what happens to that very same national interest and welfare in selecting only those students who have secured 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.

51Copy pinpoint51. In any case we examine these propositions below, as c 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 D 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 E 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. The knots of legal formalism, and abandonment of the values that the Constitution F seeks to protect, may lead to such a result We cannot believe that this Court would have arrived at such an interpretation of our Constitution, and in fact below we find that it has not.

52Copy pinpoint52. It would appear that both learned Senior Counsel, Mr. G K.K. Venugopal and Mr. Jaideep Gupta are relying on paragraphs 127 and 137 in P.A. lnamdar to substantiate their claim that all that is needed by ACMS is to ensure that their admission procedures are fair, transparent and non- exploitative. Mr. K.K. Venugopal submits that there can be a H

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A consensual agreement between the State and the private unaided institution, regarding seat sharing, but the State cannot unilaterally demand any such share. Further, Mr. Jaideep Gupta claims that by admitting only students who are wards of army personnel, on an all India basis, what ACMS is actually doing is only defining a "source" of students and not reserving any seats.

53Copy pinpoint53. We cite some additional paragraphs, including the paragraphs relied on by learned Senior Counsel from the judgment of this Court in P.A. lnamdar to test the above propositions. In particular we cite below paras 127, 136, 137 and 138: in extenso (and emph. supp in cited paragraphs):

"127. Nowhere in Pai Foundation either in the majority or the minority opinion, have we found any justification for imposing seat sharing quota by the State on unaided private professional educational institutions and reservation of the State, or State quota seats or management seats.

136. "Whether minority or no.1-minority institutions, there may be more than one similarly situated institution imparting education in any one discipline, in any State. The same aspirant seeking admission to take education in any one discipline of education shall have to purchase admission forms from several institutions and appear at several admission tests conducted at different places on the same or different dates and ther may be clash of dates, If the same candidate is required to appear in several tests, he would be subjected to unnecessary and avoidable expenditure and inconvenience. There is nothing wrong in an entrance test being held for one group of institutions imparting same or similar education. Such institutions situated in one State or in more than one State may join together and hold a common entrance test or the State may itself or through an agency arrange for holding of such H

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& ORS. [B.SUDERSHAN REDDY, J.] test. Out of such common merit list the successful A 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 8 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 ·c 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 tq 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 institutions can legitimately claim unfettered fundamental right to choose the students to be allowed admission and . the procedure therefore subject to its being fair. transparent and non-exploitative. The same principle applies to non- minority unaided institutions. There may be a single institution imparting a particular type of education which is not being imparted by any other institutions and having its own admission procedure fulfilling the test of being fair, transparent and non-exploitative. All institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the above said triple tests. The State can also provide a procedure of holding a common entrance test in the interest of securing fair and merit based admissions and preventing maladministration. The admission procedure so adopted by a private institution or group of institutions, if it fails to H

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A satisfy all or any of the triple tests, indicated hereinabove, can be taken over by the State substituting its own procedure. The second question is answered accordingly.

138. It needs to be specifically stated that having regard to the larger interest and welfare of the student community B to promote merit, achieve excellence and curb malpractices, it would be permissible to regulate admissions by providing a centralized and single-window procedure. Such a procedure to a large extent, can secure grant of merit based admissions on a transparent c basis. Till regulations are framed, the Admission Committee can oversee admissions so as to ensure that merit is not the casualty."

54Copy pinpoint54. By examining paragraphs 127 and 137 in the larger context of paragraphs 135, 137 and 138, it would appear that this Court's emphasis was on the right of private educational institutions to admit students on the basis of "merit" as determined by marks secured in an entrance test. To this extent, the above paragraphs would stand for the proposition that both minority and non-minority unaided institutions have the right to admit students who have secured higher marks in the entrance test, and not an equivalence between minority and non-minority institutions to engraft their own "sources" or "classes" of students from within the general pool. The rights of minority unaided educational institutions to select students, based on merit, is with respect to students who belong to that 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. lnamdar to get a more synoptic understanding of the ratio in that judgment.

55Copy pinpoint55. In paragraph 124 of P.A. lnamdar it is stated that the majority did not "see much of a difference between non-minority and minority unaided educational institutions". That expression H "much of a difference" gives the clue that there is an actual

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& ORS. [B.SUDERSHAN REDDY, J.] difference between the rights of minority unaided institutions A under clause (1) of Article 30, and the rights of non-minority 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. lnamdar. By using the expression "much of 8 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, based on an overall quantitative assessment of all the rights· put together, with a few differences C that would still have operational significance; or that (ii) in all respects the two classes of educational institutions are more or less the same, with the differences being minor and not leading to any operational significance. We hold that it is in the former sense that the said expression was used. By noticing 0 the phrase "much of a difference" out of context it might appear that this Court surmised that there were no substantive differences as such, in terms of operational significance as to the groups from which the non-minority and minority unaided educational institutions could select students from, notice of the context, the specific issue that the Court was dealing at that point in the judgment, leads to a different conclusion. The issue that the Court was dealing with was with respect to whether the State could compel unaided educational institutions to choose students with lesser percentage of marks in order to implement its reservation policies. The last sentence of para 124 clarifies this: "The State cannot insist on private educational institutions which receive no aid from the State to implement the State's policy on reservation for granting admission on lesser percentage of marks i.e., on any criterion except merit." Minority G institutions have to choose from their own minority group who are otherwise qualified, and non-minority institutions have to choose from the entire group who are otherwise qualified. The modality of choosing within those groups has to be on the basis of inter-se ranking determined in accordance with marks H

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A secured in the common entrance test. When we look at the following paragraph, no. 125 in P.A. lnamdar, it might also appear that the State is not entitled to impose a state quota, whereby the private unaided institutions are compelled to give up a share of available seats to the candidates chosen by the 8 State, as if it was filling lhe seats available to be filled up at its discretion in such private institutions. This Court made the observation that s4cn an act, of imposition of a quota, would be an encroachment on the freedoms granted pursuant to Article 30(1) to minority institutions, and an unreasonable restriction under Article 19(1 )(g) read with Article 19(6) when imposed on non-minority educational institutions. The Court 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 E "[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."

56Copy pinpoint56. The jurisprudence of TMA Pai with respect to unaided non-minority educational institutions, as explained by P.A. lnamdar, 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 who get lesser marks in a qualifying examination such as a common entrance test, by imposition of reservations. With respect to minority educational institutions, the imposition of reservations or the imposition of the duty to

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& ORS. [B.SUDERSHAN REDDY, J.] select non-minorities beyond a sprinkling would be an encroachment of freedom guaranteed by clause (1) of Article

30. With respect to non-minority unaided institutions, imposition of reservations was deemed to be an unreasonable restriction on the freedom to engage in the occupation of "education" pursuant to sub-clause (g) of clause (1) of Article 19. In as much as Clause (5) of Article 15 is now part of the Constitution, reservations by the State for "socially and educationally backward classes" without the creamy layer, and for Schedule.d' Castes and Scheduled Tribes are now constitutionally permissible categories of state imposition on non-minority c educational institutions. The status of constitutional permissibility removes the basis for finding reserwtions to be an unreasonable restriction in the freedom to select students only on the basis of merit with respect to all the,.4eats in a non- minority unaided educational institution. Consequently, the 0 unaided non-minority educational institutions would have to comply with the State mandated reservations, selecting students within the specified reservation categories on the basis of inter-se merit. The question then is whether with respect to the remaining seats, can the state insist that non- minority private unaided institutions .select the most meritorious students, as determined by the marks secured in the qualifying test? The answer to that question is in the affirmative. As we have seen above that in paragraph 136 in P.A. lnamdar it was held that a Common Entrance Test "would better ensure the fulfillment of twin objectives of transparency and merir and further on in para 138, it stated again "[l]t nettds to be specifically stated that having regard to the larger interests and welfare of the student community to promote merit, achieve excellence and curb malpractices, it would be permissible to regulate admission by providing a centralized and single window procedure. Such a procedure, can secure grant of merit-based admissions on a transparent basis.•

57Copy pinpoint57. Clearly, the continuing concern expressed by the Seven Judge Bench in lnamdar, echoes ttie concern of this H

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A Court in TMA Pai: the need 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 B 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. c

58Copy pinpoint58. It should be clear from the above that simply taking a few stray sentences from here and there in P.A. lnamdar 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 0 judgments of this Court in TMA Pai, Islamic Academy and in P.A. lnamdar 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 E - such as minority or non-minority, and aided or unaided -, as well as by the level of education being sought to be imparted. On top of that the issues related to whether recognition and affiliation was being sought or not. So, before arriving at an applicable principle from within those huge judgments, for F particular cases that courts deal with, it is imperative that context of observations be closely scrutinized, and also follow the many lines of delineation of many different ratios and principles. To this extent the structure that this Court in P.A. lnamdar gleaned from the judgment of this Court in TMA Pai G provides some pathways for these complex interpretational tasks that are imposed on courts dealing with many specific aspects of the wider universe of facts and law considered by this Court. And depending on the level of judicial review, the nature of judicial review, the courts may also have to take a look H at the wider universe of facts and laws not taken into account

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& ORS. [B.SUDERSHAN REDDY, J.] by this Court in TMA Pai, Islamic Academy and P.A. lnamdar. A The majority of the questions dealt with in TMA Pai related to minority institutions. In this regard, P.A. lnamdar, gleans three kinds of minority institutions that were dealt with in TMA Pai: (a} minority educational institutions, unaided nor seeking recognition or affiliation; (b} minority educational institution B asking for affiliation or recognition; and (c} minority educational institutions receiving State aid, whether seeking recognition and affiliation or not. To this broad classification, P.A. lnamdar finds that TMA Pai has considered three parallel non-minority educational institutions also: (a1} non-minority educational c institutions, neither seeking aid nor recognition or affiliation; (b1} non-minority educational institutions, seeking recognition or affiliation but no aid; and (c1} non-minority educational institutions receiving State aid, whether seeking recognition or affiliation or not. To the matrix of parallel institutions, P.A. D lnamdar also gleans from TMA Pai, another dimension on which to differentiate educational institutions: by level of education, general collegiate education, professional graduate level education and post-graduate level of education. It is within this labyrinthine maze that this court sought to find similarities and differences between minority educational institutions and non-minority educational institutions. Consequently, care must be taken in interpreting P.A. lnamdar, and a few stray sentences here and there ought not to be taken to indicate an actual holding or ratio. In P.A. lnamdar 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. lnamdar to eke out the correct ratio applicable to the facts of the instant case.

59Copy pinpoint59. In paragraph 91, of P.A. lnamdar, 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, H

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A 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. lnamdar that education can be an occupation imbued with profit motive is not the ratio of the decision. One sentence or a phrase or an B expression cannot be torn out of context and be characterized as the ratio decidendi.

60Copy pinpoint60. That apart, a question is raised in para 91 of P.A. lnamdar. If the right to start and operate educational institutions is a general right for all citizens, why did the framers of the C Constitution have to enact Article 30(1)? It is observed in para 91 that the "reasons are too obvious to require elaboration ...... " and that it was "intended to instill confidence in minorities against any executive or legislative encroachment on their right to establish and administer educational institutions of their D choice". It is also further noted in pa,a 91 that though Article 30(1) is styled as a right, it is more in the nature of protection for minorities. The following cited text of the opinion in paras 91, 92 and 93 from P.A. lnamdar are critical:

E "91 .......... But for Article 30, an educational institution, even though based on religion or language, could have been controlled or regulated by law enacted under clause (6) of Article 19, and so, Article 30 was enacted as a guarantee to the minorities that so far as the religious F minorities are concerned, educational institutions of their choice will enjoy protection from such legislation ..... The minorities being numerically less qua non-minorities, may not be able to protect their religion or language and such cultural values and their educational institutions will be protected under Article 30 at the stage of law making. G However, merely because Article 30(1) has been enacted minority educational institutions do not. become immune from the operation of regulatory measures because the right to administer does not include the right to maladminister. H

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& ORS. [B.SUDERSHAN REDDY, J.]

92. As an occupation, right to impart education is a A fundamental right under Article 19(1 )(g), and therefore, subject .to control by clause (6) of Article 19. This right is available to all citizens without drawing a distinction between minority and non-minority. Such a right is, generctlly speaking subject to laws imposing reasonable B restrictions in the interest of general public; In particular laws may be enacted on the following subjects: (i) the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business; (ii) the carrying on by State of-any trade, c business, industry or service whether to the exqlusion, complete or practical of citizens or otherwise. Care is taken of minorities, religious or linguistic, by protecting their right to establish and administer educational institutions of their choice under Article 30. To some extent, what may D 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 E 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 non-minority community. However, non-minority students cannot be · F 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 G 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 H

670 SUPREME COURT REPORTS [201~] 6 S.C.R.

A regulations, as spelt out by a six-Judge Bench decision in Rev. Sidhajbhai case 13 and a nine-Judge Bench case in St. Xavier's 14 must satisfy the following tests: (a) regulation is reasonable and rational; (b) it is regulative of the essential character of the institution and is conducive to B making the institution an effective vehicle of education for the minority community or other persons who resort to it; (c) it is directed towards maintaining excellence of education and efficiency of administration so as to prevent it from falling in standards. These tests have met the c approval of Pai Foundation."

61Copy pinpoint61. A clear set of distinctions emerge between educational institutions that are started and operated by minorities and non- minorities. The level of regulation that the State can impose under Clause (6) of Article 19 on the freedoms enjoyed pursuant to sub-clause (g) of Cl2·Jse (1) of Article 19 by non- minority educational institutions would be greater than what could be imposed on minority institutions under Article 30(1) continuing to maintain minority status by admitting mostly students of the minority to which the minority institution claims it belongs to, except for a sprinkling of non-minority students. ' The critical difference in regulation that would be higher in the case of non-minority educational institutions is that they only select students from the general pool, and based on merit as determined by marks secured in qualifying examinations. The F ability to choose from a smaller group within the general pool, t becomes available only to those who are constitutionally protected under Clause (1) of Article 30. Even that ability to choose from within the smaller group is not really a right to choose a "source". The source is given. The source can only G be the minority to which the minority educational institution claims it belongs to. Once the choice is exercised to be an educational institution that serves a minority, the source itself

13. Rev. Sidhajbhai Sabhai v. State of Gujarat (1963) 3 SCR 837.

H 14. Ahmemdabad St. Xavier's College Society v. State of Gujarat (1974) 1 SCC 717.

INDIAN MEDICAL ASSOCIATION V. UNION or INDIA 671 & ORS. [B.SUDERSHAN REDDY, J.] is given by Clause (1) of Article 30 and depends on whether A the group claiming to be a minority is actually a minority or not, as determined at the State level. Neither AWES nor. ACMS, are protected by any constitutional provision that allows it to choose to be an educational institution serving only a small class of students from within the general pool. If indeed Army B 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 c 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 0 (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 determined by marks secured in entrance tests, is necessarily a State concern, which it may relax only in respect of those groups that it is constitutionally permitted to relax for. In the case of minority educational institutions, that relaxation is on account of Clause (1) of Article 30 provided minority educational institutions are maintaining their minority status by admitting mostly minority students except for a sprinkling of non-minorities; and with respect to non-minority educational institutions, only with respect to statutorily determined percentage of seats for Scheduled Caste, Scheduled Tribes, and Socially and Educationally Backward Classes as enabled by Clause (5) of Article 15 and other constitutionally permissible classes. With H

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A respect to Socially and Educationally Backward Classes, such classes can be determined .only after excluding the creamy layer, as held by this Court in Ashoka Kumar Thakur.

62Copy pinpoint62. To the above we need to add another dimension. In P.A. lnamdar, another fine distinction is drawn between 8 professional and non-professional educational institutions. We now turn to paragraphs 104 and 105 of P.A. lnamdar below:

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

105. Dealing with unaided minority educational institutions, Pai Foundation holds that Article 30 does not come in the way of the State stepping in for the purpose of securing transparency and recognition of merit in the matter of admissions ....... 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 H

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& ORS. [B.SUDERSHAN REDDY, J.] 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."

63Copy pinpoint63. 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 extended to choosing those with merit, based on ·marks on the qualifying examinations, amongst their own minority group. )here is no choice of "source" here. The choice · is only with respect to being a minority or a non-minority educational institution. If the choice is exercised that the promoters wish to start a minority educational institutioll, the source immediately gets affixed, by clause (1) of Article 30 and a determination of who falls within that minority group. The educational institution does not do that. The State does that, following a constitutionally mandated and permissible process. F In that sense, even there it is the State which delineates the "source" so that the protections of Clause (1) of Article 30 indeed flow to the minorities that the State was expected to protect. Consequently, this attempt to define an equivalence between non-minorities and minorities, and then come up with G the idea that minorities can choose or create a "source" from within the general pool, and hence the non-minorities should be free to also create their own "sources" has to be deemed to be illogical, and based on a weird interpretation of the Constitution and the reality on the ground. The non-minority H

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A educational institutions have the basic freedom to choose: those students who are the most meritorious as determined on the basis of marks secured in a common entrance test with respect to filling up the seats that are not covered by reservations for Scheduled Castes, Scheduled Tribes, and B "Socially and Educationally Backward Classes" pursuant to clause (5) of Article 15. Consequently choice of students by non- minority educational institutions can only be from the general pool with respect to non-reserved seats. They carnot make fu,rther distinctions of their own accord. c 64. In light of the above we have to conclude that non- minority private unaided professional colleges do not have the right to choose their own "source" from within the general pool. The equivalence between minority and non-minority unaided institutions, apart from that distinction because of clause (1) of D Article 30, was to be on the basis that both are subject to reasonable restrictions pursuant to. clause (6) of Article 19, that neither minority nor non-minority institutions could maladminister their educational institutions, especially professional institutions, that affect the quality of education, 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 ed;.icational institutions could choose their own sources, minorities which are assured equal protections as non-minorities should certainly have that right

INDIAN MEDICAL ASSOCIATION v. UNION OF !NOIA 675 & ORS. [B.SUDERSHAN REDDY, J.] 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 delimited source of their own minority. Otherwise Clause (1) of Article 30 would become meaningless. B

65Copy pinpoint65. Consequently, we hold that the arguments of learned Senior Counsels, Mr. K.K. Venugopal and Mr. Jaideep Gupta that ACMS as a non-minority professional institution has the right to delimit a source of students are unpersuasive. ACMS has only the right to choose students from within the general C pool. Further, in as much as this court in P.A. lnamdar found the judgment in Islamic Academy to be incorrect in presuming that there could state quotas and management quotas, we would also have to find that the 10% management quota described in clause (a) of sub-section (1) of Section 12 to be suspect. D

66Copy pinpoint66. With regard to the proposition that the exemptions granted to ACMS to fill up all ofits seats only with wards of army personnel on account of national interest has also been noted by us. However, given the ratio of P.A. lnamdar, we are unable to grant any relief on that count. We do recognize that it may indeed be the case that army personnel, particularly those at the lower end of the hierarchy in the army, and their families, may be suffering from great hardships. It would indeed be, and ought to be a matter of considerable national distress if persons who have agreed to lay down their lives, for the sake of national security, are not extended an empathetic understanding of their needs and aspirations. However, the ratio of the judgments in TMA Pai, Islamic Academy and P.A. lnamdar, by larger benches of this Court, leaves us with no options with respect to holding that ACMS may select only those students who have scored higher marks in the common entrance test with respect to seats remaining after taking into account reserved seats. This is notwithstanding what we may perceive to be an odious and an inherently unjust situation. If any special provisions need to H

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A be made to protect the wards of Army personnel, this may possibly be done by the State, by laws protected by Clause (5) of Article 15. The private society, of former and current army personnel by themselves cannot unilaterally choose to do the same. B

67Copy pinpoint67. Prior to the enactment of 93rd Constitutional (Amendment) Act 2005, whereby Clause (5) was inserted into Article 15 of our Constitution, the ratio in TMA Pai, as further explained by P.A. lnamdar, would have foreclosed any options for the society and this country 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 higher and lower, then determine that they will start many law colleges which will only admit wards of such members of the judiciary? Would Indian Administrative Officers, G along with some slightly lower level in the administrative rung then have a similar right? Would the members of the police force also then get such rights? Would NASSCOM or a group of software companies say that they want to start software engineering colleges that will open their portals only to those H

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& ORS. [B.SUDERSHAN REDDY, J.] who belong to NASSCOM? Where will this stop? How will this nation take the burden of such walled and divided portals of knowledge? What will become of the prayer of our national poet laureate, that knowledge be free and where the world is not broken up into fragments of narrow domestic walls? Have we set ourselves on the path to such divisiveness, at the very source of the one force that could liberate us and unite us, and make us a more egalitarian society? If we were to uphold the logic of the learned Senior Counsel appearing for the Respondents, which we cannot under the ratio of TMA Pai, and P.A. lnamdar, but under "complete justice jurisprudence" of Article 142, then c we would have set ourselves on a slippery slope, whereby the entire field of higher education would comprise of "gated communes" or some new and perverse form of caste system, where existing advantages, of occupations, social and economic stature, would get ossified only within a small D segment of the population. Surely, fundamental rights have been granted to the citizens, to be free and build a better society or at least refrain from actions that would create further walls of social division.

VII E

68Copy pinpoint68. One last thing remains.

69Copy pinpoint69. As we had noted earlier, the Constitutional validity of Delhi Act 80 of 2007 was never raised, either by the Appellants F or the Respondents, in any of the proceedings earlier. For the first time, before us, the learned Senior Counsel, Mr. Jaideep Gupta has raised the question of whether the provisions of clause (5) of Article 15 violate the basic structure of the Constitution in so far as they relate to enablement of the making of "special provisions", by law, with respect to admissions of G Scheduled Castes, Scheduled Tribes, and Socially and Educationally Backward Classes into private unaided non- minority educational institutions. This would obviously raise an issue regarding applicability of Delhi Act 80 of 2007 in the instant matter. We are hence, required to look at this issue too. H

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A In 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- B 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: c "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 D 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 1 ~ferred to in clause (1) of E Article 30."

70Copy pinpoint70. In Ashoka Kumar Thakur, apart from Bhandari J., the other four learned judges did not evaluate the issue of whether the provisions in clause (5) of Article 15, as applicable to unaided non-minority educational institutions, violate the basic F structure of the Constitution. This was on the grounds that no unaided educational institutions were before this Court. The majority, including Bhandari J., held that the same provisions in so far as they relate to governmental and private aided institutions to be valid and not in violation of the basic structure. G However, Bhandari J., opined that in as much as reservations would be imminent, pursuant to clause (5) of Article 15, the same ought to be tested because the content of freedoms enunciated by this Court, in TMA Pai, and P.A. lnamdar, were likely to be destroyed. It was granted that, even though this Court H had held in TMA Pai, as explained in P.A. lnamdar, that

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& ORS. [B.SUDERSHAN REDDY, J.] imposition of reservations on non-minority unaided educational institutions to be unreasonabl.e restrictions under clause (6) of Article 19 on the freedoms granted by sub-clause (g) of clause (1) of Article 19 to pursue the charitable occupation of starting, operating, financing, working and teaching in non-minority unaided educational institutions, the same could be subjected, by a constitutional amendment, to the provisions of clause (5) of Article 15. Nevertheless, it was reasoned that in as much as the freedoms of citizens to engage in the occupation of education was under potential threat, and further because the occupation of education was one of the activities covered by c freedoms that were part of the "Golden Triangle", as enunciated in Minerva Mills Ltd. V Union of lndia 15 , it was posited that the details be examined as to the degree of abridgment of the freedom of the "educators" to start, operate, manage, finance, work in and teach in non-minority educational institutions. D

71Copy pinpoint71. The main conclusion reached was that "educators" who do not take a "paisa of public money" ought to be free from restrictions of State imposed reservations. Further, it was also opined that even though non-minority unaided educational institutions would continue to exist, and educators would have their occupation, the "greatest impact on the educator is that neither he nor his institution will choose whom to teach'; in as much as in "49.5%" of the time the State would determine, through a policy of reservations, who the educators 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 J.R. Coelho v. State of Tamil Nadu 16 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 G "identity" of the freedom of private citizens to engage in the charitable occupation of starting, operating, managing, working

1s. (1980) 3 sec 625.

16. (2007) 2 sec 1. H

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A in, financing and teaching in non-minority 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 B 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 c freedom to engage in the said occupation guaranteed by sub- clause (g) of clause (1) of Article 19 itself would have been compromised, and consequently the provisions in clause (5) of Article 15 in as much as they affect non-minority unaided educational institutions would have to be deemed to be unconstitutional and violativ~ of the basic structure. Thereafter 0 an "effect" test was conducted, and by noting that imposition of reservations would immediately (1) make academic standards suffer; (2) affect the ability of attracting and retaining good quality faculty; (3) the incentive to establish a first-rate unaided educational institution is made difficult; and (4) E ultimately the global reputation of educational institutions would be damaged, it was held that freedom of "educators" in non- minority unaided educational institutions would have been compromised and hence abrogated. Further, it is determined that sub-clause (g) of clause (1) of Article 19 to itself be a basic feature of the Constitution, and it is further observed that:

"Given the dramatic effect that reservations would have on educators, the unaided institutions in which they teach, and consequently society as a whole, Article 19(1)(g) has been more than abridged ..... The identity of the Constitution is altered when unreasonable restrictions make a fundamental right meaningless .... Imposition of reservations on unaided institutions has abrogated Article 19(1)(g), a basic feature of the Constitution." H

INDIAN MEDICAL ASSOCIATION v UNION OF IND!A 681 & ORS. [B.SUDERSHAN REDDY, J.]

72Copy pinpoint72. The learned Senior Counsel, Mr. Jaideep Gupta, has A pressed upon us to follow the same methodology and find that clause (5) of Article 15 abrogates the basic structure of the constitution, and consequently declare those aspects of Delhi Act 80 of 2007 that impose reservations to be unconstitutional. We state our response very simply: we are not persuaded by s the same, and for the reasons discussed hereafter with humility and utmost respect beg to differ from the view taken by our esteemed brother Bhandari J.

73Copy pinpoint73. Clause (5) of Article 15 is an enabling provision and inserted by the 93rd Constitutional (Amendment) Act, 2005 by C use of powers of amendment in Article 368. The 93rd Constitutional (Amendment) Act, 2005 was in response to this Court's explanation, in P.A. lnamdar, of the ratio in TMA Pai, that imposition of reservations on non-minority unaided educational institutions, covered by sub-clause (g) of clause (1) D of Article 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 E 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 F Constitution, the grounds on which this Court had previously found the reservations to be unreasonable would v~nish.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 G 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 to invert the logic of the H

682 SUPREME COURT REPORTS (20111 6 S.C.R.

A basic structure doctrine, state the propositions of the test in a tautological manner and consequently convince ourselves that there is great danger to constitutional identity by virtue of legislations that could plausibly be enacted by the State by virtue of the enabling provisions of clause (5) of Article 15 with B respect to non-minority unaided educational institutions. We find that if we were to do that, we would have set ourselves on the path to ineradicably alter the identity of our Constitution, damage its very purposes and the national project, and wipe out decades worth of jurisprudence with regard to the c importance of Directive principles of State Policy, thereby bringing back the principles enunciated in the case of I. C. Golaknath v. State of Punjab 17 , that none of the fundamental rights can be abridged or affected in any manner, which was set aside by this Court in Keshavananda Bharati v. State of Kera/a 18 • 0

74Copy pinpoint74. In this regard we also opine that if we adopt the interpretation of para 151 (ii) of l.R. Coelho that it mandates a "rights test" we would end up misinterpreting the modality of testing a Constitutional amendment on the anvil of the basic E structure doctrine as enunciated by this Court in that case itself. In this regard, a basic distinction was drawn by this Court, in l.R. Coelho, as between "rights test" and "essence of rights" test, and it was stated in para 142 that:

F "There is a/so a difference between the "rights test" and the "essence of rights" test. Both form part of application of the basic structure doctrine. When in a controlled Constitution conferring limited power of amendment, an entire chapter is made inapplicable. the "essence of right" test as applied in M. Nagaraj Case will have no G applicability. In such a situation, to judge the validity of law, it is the "right test" which is more appropriate."

17. (1967) 2 SCR 762. H 1s. (1973) 4 sec 22s.

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& ORS. [B.SUDERSHAN REDDY, J.]

75Copy pinpoint75. Paragraph 151(ii) in l.R. Coelho, when read by itself, may suggest that an effect and impact test be used; however we are unable to do so because of what was stated in para 142 of l.R. Coelho stated above. This is on account of the fact that if we were to take the concluding answer given to a specific question, and conflating the same to the status of a ratio applicable to all other general or specific facts, we run the risk of not recognizing the rationale by which the 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 .c 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 0 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 E (v) of Para 151 of l.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 F Part Ill of the Constitution may violate the basic structure or it may not. ·1f former is the consequence of the law, whether by amendment of any article or by an insertion in the Ninth Schedule, such law will have to be invalidated in exercise of judicial review power of the Court. The validity G or invalidity would be tested on the principles laid down in this judgment. (ii) The majority judgment in Keshavananda Bharati case H

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A read with Indira Gandhi case 19 requires the validity of each new constitutional amendment to be judged on its own merits. The actual effect and impact of the law on the rights guaranteed under Part Ill has to be taken into account for determining whether or not it destroys basic structure, The B impact test would determine the validity of the challenge.

(iii) All amendments to the Constitution made on or after 24-4-1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the c Constitution as reflected in Article 21 read with Article 14, Article 19, and the principles underlying them. To put it differently even though an Act is put in the Ninth Schedule, its provisions would be open to attack on the ground that they destroy or damage the basic structure if the fundamental right or rights taken away or abrogated pertains to or pertain to the basic structure.

(iv) Justification for conferring protection, not blanket protection, on the laws included in the Ninth Schedule by constitutional amendments shall be a matter of constitutional adjudication by examining the nature and extent of infraction of a fundamental right by a statute, sought to be constitutionally protected, and on the touchstone of the basic structure doctrine as reflected in Article 21 read with Article 14 and Article 19 by application of the "rights test" and "essence of the right" test taking the synoptic view of the Articles in Part Ill as held in Indira Gandhi case 20 • Applying the above tests to the Ninth Schedule laws, if the infraction affects the basic structure then such law(s) will not get the protection of the Ninth G Schedule. (v) This is our ansyJer to the question referred to us vide

19. Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1.

H 20. 1975 Supp sec 1.

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& ORS. [B.SUDERSHAN REDDY, J.] order dated 14-9-1999 in l.R. Coelho v. State of T.N" A

76Copy pinpoint76. It should be pointed out that l.R. Coelho judgment was delivered to answer the question, as pointed out in para 5, as to whether it is "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 8 effect on the power of judicial review of the Courf'. In para 78 of l.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 31-8 provided a blanket protection such that C 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.

77Copy pinpoint77. One of the incidental questions that this Court in l.R. D 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 case 21 , that his opinion in Keshavananda could not be read to mean that none of the fundamental rights could be treated as a part of basic structure, this Court in l.R. Coelho in para 97, held that "the rights and freedoms created by the fundamental rights chapter can be taken away or destroyed by amendment of the relevant article, but subject to the limitation of the basic structure doctrine". In para 98 it was observed by this Court that "the first aspect to be borne in mind is that each exercise of the amending power inserting laws into the Ninth Schedule entails a complete removal of the fundamental rights chapter vis-a-vis the laws that are added to the Ninth Schedule. Secondly, insertion in the Ninth

21. 1975 Supp sec 1. H

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A Schedule is not controlled by any defined criteria or standards by which the exercise of power may be evaluated. The consequence of insertion is that it nullifies entire Part /II of the Constitution. There is no constitutional control on such nullification........ The supremacy of the Constitution B mandates all constitutional bodies to comply with the provisions of the Constitution. It also mandates a mechanism for testing the validity of legislative acts through an independent organ viz. the judiciary." Thus, it appears that what was exercising the collective mind of the Nine Judge C Bench in l.R. Coelho was the breadth of protections that were being sought and placed on laws included in the Ninth Schedule: from any standards or values of the Constitution itself, including complete evisceration of Part Ill and judicial review. In fact this is borne out by para 103 wherein it was observed that "[T]he absence of guidelines for exercise of such power D means the absence of constituticnal control which results in destruction of constitutional supremacy and creation of parliamentary hegemony and absence of full power of judicial review to determine the constitutional validity of such exercise." E

78Copy pinpoint78. It would be pertinent to note that the provisions of new clause (5) of Article 15 do not purport to take away the power of judicial review, or even access to courts through Articles 32 or 226. Neither do the provisions of clause (5) of Article 15 F mandate that the field of higher education be taken over by the State itself, either to the partial or total exclusion, of any private non-minority unaided educational institutions, a power that was most certainly granted under clause (6) of Article 19, which had been inserted by the 1st Constitutional Amendment in 1951. G 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

INDIAN MEDICAL ASSOCIATION v. UNION OF !NOIA 687 & ORS. [B.SUDERSHAN REDDY, J.] 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 sub-clause (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 B 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 c categories in unaided educational institutions other than minority educational institutions." It was also stated that greater access to higher education, including professional education to students belonging to weaker segments is a matter of major concern, and that the number of seats available in aided or 0 State maintained institutions, particularly in respect of professional education, was limited in comparison to those in private unaided institutions. Furthermore, in as much as Article 46, a Directive Principle of State Policy, commands that the State promote with special care the educational and economic interests of the weaker sections of the population and protect E them from social injustice, it was stated that access to education to be important to ensure advancement of persons belonging to Scheduled Castes, Scheduled Tribes and the Socially and Educationally Backward Classes. F

79Copy pinpoint79. In this regard, l.R. Coelho makes some very important observations, about the equality code and egalitarian content of fundamental rights that we opine have a direct bearing on the issues of basic structure review of clause (5) Article 15. In particular after noting that Part Ill "has a key role to play in the G. application" of the basic structure doctrine (para 100), the Court went on to state para 101:

Regarding the status and stature in respect of fundamental H

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A rights in constitutional scheme, it is to be remembered that fundamental rights are those rights of citizens or those negative obligations of the State which do not permit encroachment on individual liberties. The state is to deny no one equality before the law. The object of fundamental B rights is to foster the social revolution by creating a society egalitarian to the extent that all citizens are to be equally free from coercion or restriction by the State: By enacting fundamental rights and directive principles which are negative and positive obligations of the State, the c Constituent Assembly made it the responsibility of the Government to adopt a middle path between individual liberty and public good. Fundamental rights and directive principles have to be balanced. The balance can be tilted in favour of the public good. The balance however cannot be over-turned by completely overriding individual liberty. D This balance is an essential feature of the Constitution." (emph. Supp.)

80Copy pinpoint80. Further, it was also stated in, in para 102, that in evaluating the permissibility of an amendment, one needs to look at; as done in Waman Rao v. Union of lndia 22 , how far the 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 G Part I/I constitute fundamentals of the Constitution like Article 21 read with Attic/es 14 and 15 which represent secularism etc., As held in Nagaraj2 3 egalitarian equality exists in Atticle 14 read with Articles 16(4), (4-A), (4-B) and, therefore, its

22. (1981) 2 sec 362.

H 23. M. Nagaraj v. Union of India (2006) 8 SCC 202.

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& ORS. [B.SUDERSHAN REDDY, J.] 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 embodied in Article 14 is part of the basic structure of the Constitution, that in Minerva Mills it was held that Articles 14, 19 and 21 clearly form part of the basic structure of the Constitution and cannot be abrogated, it is concluded in para 114 that "the result of the aforesaid discussion is that since basic structure of the constitution c includes some of the fundamental rights, any law granted Ninth Schedule protection deserves to be tested against these principles. If the law infringes the essence of any fundamental rights, or any other aspect of the basic structure then it will be struck down. The extent of abrogation and limit of abridgment D shall have has to be examined in each case." (emph. supp.)

81Copy pinpoint81. Consequently, it appears that in l.R. Coelho this Court recognized that there are different kinds of constitutional amendments. The kinds of amendments whereby laws are placed in the Ninth Schedule only enjoy a "fictional immunity" E and they would have to be tested by using the direct impact and effect test i.e., "rights test" or even the essence of each fundamental right that has been deemed to be a part of the basic structure. The laws placed in the Ninth Schedule are ordinarily enacted, and then placed in Ninth Schedule by a F constitutional amendment, simpliciter, and enjoy only a "fictional immunity" pursuant to Article 31-8. This is in contrast to the situation where a Constitutional amendment effectuates changes in the main provisions of the Constitution, particularly in Part Ill. In such a constitutional amendment, the "essences G of rights" test used in M. Nagaraj, wherein the essences of the rights are identified across entire equality, freedom and judicial review codes, i.e., "over-arching principles" of such codes, and then the particular Constitutionol amendment is evaluated as to whether it completely changes the very "identity" of the entire H

690 SUPREME COURT REPORTS [20111 6 S.C.R.

A Constitution itself. Those "over-arching principles" are what gives the Constitution its identity, and when they are destroyed would the identity of the Constitution have been changed completely.

82Copy pinpoint82. This is made very clear by what this Court in l.R. Coelho 9 perceived to be the status of the nature of immunity granted by Article 31-B: "Article 31-B gives validation based on fictional immunity. In judging the validity of constitutional amendment' i.e., the amendment that places a state law in the Ninth Schedule "we have to be guided by the impact test." (see para C 149) "The basic structure doctrjne 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."

83Copy pinpoint83. The above cited paragraph lends further support to our earlier observation that this Court in l.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 F 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 time it is G undertaken". Secondly, it must also be noticed, that state legislatures cannot amend the constitution. It was conclusively held in l.R. Coelho, in para 14.8, that "fictional validation based on the power of immunity exercised by Parliament under H

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& ORS. [B.SUDERSHAN REDDY, J.} Article 368 is not compatible with basic structure doctrine and, A therefore, the laws that are included in the Ninth Schedule have to be examined individually for determining whether the constitutional amendments by which they are put in the Ninth Schedule damage or destroy the basic structure of the Constitution." This was so because post. Keshavananda B decision, this Court had specified that some of the fundamental rights are also a part of the basic structure because of their importance. Consequently, a direct impact and effect test i.e., "rights test" and "essence of right" i.e., the essence of the fundamental right that has been affected has to be conducted c in the case of laws included in the Ninth Schedule by virtue of the constitutional amendments, simpliciter, whereas with respect to constitutional amendments of an article in the Constitution itself had to be tested in accordance with the essences of rights i.e., "over-arching principles" test as enunciated in M. Nagaraj. D This is further borne out by sub-para (i) of paragraph 151 cited earlier when read with para 142, and taking the entire judgment in l.R. Coelho into account.

84Copy pinpoint84. A few observations are merited with regard to the very carefully crafted principles laid down in the sub-para (i) of para E 151 in l.R. Coelho. The first point is that a law that abrogates or abridges rights guaranteed by Part Ill may or may not violate the basic structure. This means that there could be laws that could abrogate some fundamental rights in Part Ill, and yet may not lead to a violation of the basic structure doctrine. The second sentence in sub-para (i) states emphatically that if a law abrogates or abridges a fundamental right and also violates the basic structure then it must be set aside. At this stage it is not yet clear whether the law is a constitutional amendment exercised under Article 368 to make an amendment to the main body of the constitutional text, or the law is an amendment that places laws in the Ninth Schedule, whereby such laws in the Ninth Schedule do not become a part of the Constitution as such. That clarification comes from the next sentence: "The validity or invalidity would be tested on the principles laid down H

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A 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 B amendments on the anvil of the basic structure doctrine would have to be in accordance with the test delineated in M. Nagaraj.

85Copy pinpoint85. 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 C 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 D 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., the "over-arching principles" test as enunciated in M. Nagaraj24 , to which we turn below. E

86Copy pinpoint86. In M. Nagaraj, Kapadia J., (as he then was) speaking for the Court, recognized that one of the cardinal principles of constitutional adjudication is that the mode of interpretation ought to be the one that is purposive and conducive to ensure that the constitution endures for ages to come. Eloquently, it was stated that the "Constitution is not an ephemeral legal document embodying a set of rules for the passing hour". In M. Nagaraj this Court recognized that fundamental rights are not those which exist only by virtue of the State recognizing them to be so, but rather that the Constitution transcribes them as limitations on the power of the State. This would mean that not merely or solely are the negative rights to be conceived as natural, given and pre-existing, but the positive rights, which cast an obligation on the State to achieve egalitarian and social

H 24. (2006) a sec 212.

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& ORS. [B.SUDERSHAN REDDY, J l justice objectives, that behoove to the benefit of individuals and A groups would also have to be recognized as natural, given and pre-existing. It is also recognized that the content of the fundamental right granted to a citizen has to be determined by the judiciary; and variations effectuated by the State have to meet the test of reasonableness as enunciated by this Court B in Minerva Mills, which effectively set aside the narrow construction of A.K. Gopalan v State of Madras25 that as long as the variation and the extent of such variation of a granted fundamental right is effectuated by "law" it could not be questioned. However, it was also recognized that the judiciary c cannot use a narrow and pedantic exposition of the text of the fundamental right to determine the contents thereof. Further, the Court in M. Nagaraj recognized that the standard of judicial review of a constitutional amendment, on the touchstone of the doctrine of the basic structure, is an entirely different exercise than review of state legislation with respect to its impact on a specific fundamental right. Analysing the rationale and·mode of analysis of the Court in S.R. Bommai v. Union of lndia26 , it was stated, in para 23, that "it is important to note that the recognition of a basic structure in the context of amendment provides an insight that there are, beyond the words of particular provisions, systematic 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. F 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 G 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

25. 1950 SCR 88.

26. (1994) 3 sec 1. H

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A 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." B

87Copy pinpoint87. The modality of the "essences of rights test" was enunciated in para 25 of M. Nagaraj as follows: " Jn order to qualify as an essential feature, it must be first established that the said principle is a part of constitutional law binding on the legislature. Only, thereafter, is the second step to be taken, namely whether, whether the principle is so fundamental as to bind even the amending power of Parliament i.e., to form a part of the basic structure ..... To sum up: in order to qualify as an essential feature, a principle is to be first established as part of constitutional law and as such binding on the legislature. Only then, can it be examined whether it is so fundamental as to bind even the amending powers of Parliament i.e., to form part of the basic structure of the Constitution. This is the standard of review of constitutional amendments in the context of the doctrine of the basic structure." And further on, in para 26, the Court also recognized that the doctrine of basic structure has emanated from the German Constitution and notes that in that jurisprudence the overarching principle that connects, and informs all other values is the principle of human dignity. With respect to our F Constitution it was noted that "axioms like secularism, democracy, reasonableness, social justice, etc., are over- arching principles which provide linking factor for the principle of fundamental rights like Article 14, 19 and 21. These principles" i.e., the over-arching principles, "are beyond the G amending power of Parliament." (emph. suppd.)

88Copy pinpoint88. From the above we can glean that evaluation of whether a particular amendment has amended those "over- arching principles" is the test for basic structure. It is not the H

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& ORS. [B.SUDERSHAN REDDY, J.] specific instances of expression of contents of a fundamental right, as stated by the courts prior to an ameAdment which are to become the anvil of the test of basic structure when the amending power is exercised and a main element of the provisions of the Constitution is altered. Rather, the courts have to be careful in assessing whether those over-arching principles themselves are abrogated. By no stretch of imagination could one claim that lruncation of one of the activities that were deemed to have been one of the many essential features of one of the occupations of the many occupations that are guaranteed by one of clauses of the freedom code, by itself c could constitute an over-arching principle, and further that such a principle has been abrogated. It is not the change in the identity of any one element 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 0 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 iri 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 Bliarati27 , 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 identity despite the change and it continues even thoughit has been subjected to alteration. This is the constant theme of

21. (1973) 4 sec 22s. H

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