ISLAMIC ACADEMY OF EDUCATION AND ANOTHER v. STATE OF KARNATAKA AND OTHERS

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A draft of which shall be published, in the Tamil Nadu Government Gazette stating that any objection or suggestion which may be received by the Government, within such period as may be specified therein, shall be considered by them.

(2) No educational institution shall receive or collect any fee or accept B deposit in excess of the amount notified under sub-section (1 ).

(3) Every educational institution shall issue an official receipt for the fee or deposit received or collected by it."

Once, however, it is held that such a provision would not constitute a C reasonable restriction within the meaning of Clause (6) of Article 19, it must also be held that such a provision would not satisfy the test of permissible regulations within the meaning of Article 30 thereof.

The ground reality, however, cannot be lost sight of. It is true, as has been contended by the learned counsel appearing on behalf of the applicants, that the Central Government in answer to question raised in the Parliament has stated that the expenses incurred by the State for imparting education to the students is very high'. It may vary from three lakhs to five lakhs. Some States, however, in their colleges charge about rupees five thousand per year; whereas the unaided institutions demand anything between rupees two lakhs to five lakhs.

Some State Governments unfortunately followed suit, hiked fees and like many private unaided institutions the State of Haryana has also demanded the entire amount of fees for the whole course.

F The fee structure, thus, in relation to each and every college must be determined separately ke~ping in view several factors including, facilities available, infrastructure made available, the age of the institution, investment made, future plan for expansion and betterment of the educational standard etc. The case of each institution in this behalf is required· to be considered by an appropriate Committee. For the said purpose, even the books of\accounts maintained by the institution may have to be looked into. Whatever is determined by the Committee by way of a fee structure having regard to relevant factors some of which are enumerated hereinbefore, the management of the institution would not be entitled to charge anything more.

While determining the fee structure, safeguard has to be provided for so that professional institutions do not become auction houses for the purpose

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of selling seats. Having regard to the statement of law laid down in para 56 A of the judgment, it would have been better, if sufficient guidelines could have been provided for. Such a task which is a difficult one has to be left to the Committee. While fixing the fee structure the Committee shall also take into consideration, inter alia, the salary or remuneration paid to the members of the faculty and other staff, the investment made by them, the infrastructure B provided and plan for future development of the institution as also expansion of the educational institution. Future planning or improvement of facilities may be provided for. An institution may want to invest in an expensive device, (for medical colleges) or a powerful computer (for technical college). These factors are also required to be taken care of. The State must evolve a detailed procedure for constitution and smooth functioning of the. Committee. C While this Court has not laid down any fixed guidelines as regard fee structure, in my opinion, reasonable surplus should ordinarily vary from 6% to 15%, as such surplus would be utilized for expansion of the system and development of education. D The institutions shall charge fee only for one year in accordance with the rules and shall not charge the fees for the entire course.

Profiteering has been defined in Black's Law Dictionary, Fifth 'edition as: E "Taking advantage of unusual or exceptional circumstances to make excessive profits"

With a view to ensure that an educational institution is kept within its bounds and does not indulge in profiteering or otherwise exploiting its students financially, it will be open to the statutory authorities and in its absence by the State to constitute an appropriate body, till appropriate statutory regulations are made in that behalf.

The respective institutions, however, for the aforementioned purpose must file an appropriate application before the Committee and place before it all documents and books of accounts in support of its case.

Fees once fixed should not ordinarily be changed for a period of three years, unless there exists extra-ordinary reason. The proposed fees, before indication in the prospectus issued for admission, have to be approved by the concerned authority/ Body set up. For this purpose the application should H

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A not be filed later than April of the preceding year of the relevant education session. The authority/ Body shall take the decision as regards fees chargeable later by October of the year concerned, so that it can form part of the prospectus. No institution should charge any fee beyond the amount fixed and the fee charged shall be deposited in a nationalized bank. In other words, no employee or any other person employed by the Management shall be entitled to take fees in cash from the students concerned directly. The statutory «:: I authority may consider the desirability of framing an appropriate regulation inter alia to the effect that in the event it is found that the management of a private unaided professional institution has accepted any amount other than the fees prescribed by the Committee, it may have to pay a penalty ten to fifteen times of the amount so collected and in a suitable case it may aiso lose its recognition or affiliation.

However, there cannot be any doubt that before any such order is passed the institutions concerned shall be entitled to an opportunity of being heard. For the aforementioned purpose, the State shall set up a machinery to detect cases where amounts in excess of permitted limit are collected as it is the general experience that students pay a huge amount.

However, if for some reason, fees have already been collected for a longer period the amount so collected shall be kept in a fixed deposit in a E nationalized bank against which no loan or advance may be granted so that the interest accrued thereupon may enure to the benefit of the students concerned. Ordinarily, however, the management should insist for a bond from the concerned students.

COMMON ENTRANCE TEST AND PERCENTAGE OF SEATS: F Paragraphs 48 to 66 appear under the heading "Private unaided non- minority educational institutions" whereas paragraphs 67, 68 and 69 appear under the heading "Private unaided professional colleges". The observations made by the bench, however, having regard to paragraphs 58 and 59 are referable to both to the minority and non-minority unaided insti!utions. G Paragraph 68 in no uncertain terms lays emphasis on merit for the purpose of admission to professional institutions.

However, paragraphs 58 and 59 also deal with professional institutions although discussions appear under different heading. This, however, would H not minimize the importance of the statement of law made therein ...

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Paragraph 68 does not state that the statement of law made therein. A applies only to the minorities, as for the purpose of local needs it refers to different percentages both for minority aided and non-minority unaided professional colleges. It cannot, therefore, be said that paragraph 68 has to be read in isolation and paragraphs 58 and 59 of the judgment would be irrelevant for the said purpose. If the said paragraphs are read conjointly, B there cannot be any doubt that merit must be at the forefront. For the said purpose professional and higher educational institutions have been clubbed together.

A dichotomy has arisen in view of the findings of the bench occurring in paragraphs 58 and 59 on the one hand and 68 of the judgment on the other. C Paras 68 refers to private unaided professional colleges which would include both minority and non-minority as would appear from the following :

"The prescription of percentage for this purpose has to be done by the Government according to the local needs and different percentages can be fixed for minority unaided and non-minority unaided and D professional colleges."

Paragraph 58 clearly states that the merit must play an important role. In no uncertain terms, it is directed :

"While seeking admission to a professional institution and to become E a competent professional, it is necessary that meritorious candidates are not unfairly treated or put at a disadvantage by preferences shown to less meritorious but more influential applicants. Excellence in professional education would require that greater emphasis be laid on the merit of a student seeking admission. F, Appropriate observations made in this judgment in the context of admissions to unaided institutions."

It, therefore, takes into its fold inter se merit between minority and non- rninority students. G Paragraph 59 contains illustration as to how the merit is usually determined. It may be true that paragraph 59 being illustrative in nature, other options at the hands of the minority institutions are not excluded but a confusion has certainly crept in as therein both minority and non-minority have been clubbed together. H

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,- A Paragraph 59 deals with.how todetennine the merit by giving illustration. ·- Thus, it does not rule out any other method for determining the merit which may also include marks obtained in qualifying examination. Paragraphs 58, 59 and 68, in my opinion, must be allowed to be given effect to and read conjointly for the said purpose. )o=

B Paragraph 68 should be read in five parts :

{l) A difference is sought to be made as regards rules and regulations J.· applicable to the aided institutions vis-a-vis unaided professional institutions. (This shows that .the regulations relating to admission of students shall be less rigid for unaided institutions as compared c to aided institutions);

(2) While conceding autonomy to _the unaided professional institutions (both minority and non-minority), it is mandatory that the principle of merit cannot be foregone or discarded (This shows that role played by merit must be given due importance); D (3) The conditions may be laid down by the University or the other statutory bodies entitled to grant recognition to provide for merit ~ based selection. (The same, however, in my opinion, would not mean that no condition other than those imposed at the time of grant of recognition can be imposed by way of legislation or ., \

E otherwise inasmuch as the field of imparting education in professional institutions is governed by statutes. To the said extent, it has to be read down); (4) The management of a private unaided _professional colleges for the purpose of admitting students will have options :- (a) to hold 1- F a common entrance test by itself; or (b) to follow the common entrance test held by the State or the University. The students belonging to the management quota may be admitted having regard to the common entrance test either held by the management or by the State/University, although the test may be common. So far as students belonging to poorer or backward section of society G is concerned, their seats will have to be filled up on the basis of counselling by the State agency. (As would appear from the discussions made hereinafter, it cannot be taken to its logical conclusion); \ (5) The percentage of management quota and the rest is required to H \_ I

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be prescribed having regard to the local needs. (However, the percentage for minority unaided and non-minority unaided institutions may be different).

It is not correct to say that only because two different expressions "certain" and "different" have been mentioned at two places in para 68, they connote two different meanings. They will have to be read in the context in which they have been used. As a logical corollary, it will also be incorrect to say that minority unaided institutions can fill up al! the seats from amongst the students belonging to their community whereas the non-minority unaided institutions will have no such right. The very fact that different percentages are to be fixed up for minority unaided and non-minority unaided institutions is itself a clear pointer to show that although different percentages may be prescribed therefor; but both minority unaided and non-minority institutions can admit the students of their choice to the extent of the percentage so prescribed, albeit without giving a go bye to the merit criteria. ·

Thus, reservation can be made out of the candidates who have been found to be meritorious on the above basis. For instance, if 100 students qualify on merit either through a school leaving examination or a common entrance test, reservation can be made for certain percentage of students. The balance of the seats can then made available to students who belong to non- minority community including poorer or backward section of society as mentioned in paragraph 68 of the judgment. This will not only take care of admission with regard to meritorious candidates including minority candidates for whom a reservation is made but also for other students as for the local needs of the State.

If it is to be held that in a case of minority institution all the seats could be filled in by members of their community/language, if available, the same would run counter to para 68 of the judgment which says about certain percentage which can never be 100%. The expression "different percentages" occurring in para 68 would clearly mean there cannot be any fixed percentage. In a given case it may be more than 90% but in another it may be less than 50%. Different percentages must be worked out in terms of the need of the institution. It has nothing to do with minority or non-minority; aided or unaided. The dictum of the court in St. Stephen vis-a-vis T.M.A. Pai Foundation must be read in that context. It cannot be said as a matter of legal proposition that in each and every case the minority educational institutions would be H

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A entitled to fill up more than 50% of the seats from amongst the students {'f their choice and that too irrespective of merit. The fact that even students belonging to minority community take admission in colleges run or aided by the State or other private unaided colleges cannot be lost sight of. On taking into consideration all.the.relevant criteria only the percentage can be worked B out. It would be, in my co~~idered opinion,. wrong to compare the unaided institutions always with aided institutions. St. Stephen should be understood in proper persp_ective. What is explained in TMA. Pai (supra) is that there cannot be any fixed percentage. Each case will have to be considered on its own merit. Need of the institution should be the prime concern. Per~entage will have to be worked out having regard to the need only. c For the purpose of achieving excellence in a professional institution, merit indisputably should be a relevant criterion. Merit, as has been noticed in the judgment, may be determined in various ways (Para 59). There cannot be, however, any fool-proof method whereby and whereunder the merit of a student for all times to come may be judged. Only, however, because a D student may fare differently in a different situation and at different point of time by itself cannot be a ground to adopt different standards for judging his merit at different points of time. Merit for any purpose and in particular for the purpose of admission in a professional cullege should he judged as far as possible on the basis of same or similar examination. In oth~r words, inter ~ se merit amongst the students similarly situated should be judged applying the same norm or standard. Different types of examinations, different sets of questions, different ways of evaluating the answer books may yield different results in the case of the same student.

Selection of students, however, by the minority institutions even for the members of their community cannot be bereft of merit. Only in a given situation less meritorious candidates from the minority community can be admitted vis-a-vis the general category; but therefor the modality has to be worked out. For the said purpose de facto equality doctrine may be applied instead of de jure equality as every kind of discrimination may not be violative of the equality clause. [See PradeepJain v. Union ofIndia, [1984] 3 sec 654.]

It may be true that some self-financed professional institutions have been permitted to hold their own examination so as to enable the management to fill up their seats from its own quota, as fixed by the State Government. Although no complaint has yet been received by the respective Governments, H it may be possible that the time was not ripe for it. As and when complaints

ISLAMIC ACADEMY OF EDUCATION.'" STATE [S.B. SINHA,J) 563

are received with regard to holding of an impartial and transparent test, the same has to be examined by the State/University. We may, however, place on record that the State of Maharashtra has placed before us a chart showing that some of the students had appeared at two examinations and one who got only 8% in the common entrance test held by the State, passed the examination held by the management. From the above chart supplied to us by the State of Maharashtra, it appears that only three students who had appeared both at the common entrance test held by the State and the management had passed the common entrance test held by the State whereas a large number of students had passed the test held by the management, although they could not pass the Common Entrance Test. The merit of the students whether belonging to the minority community or 'otherwise, thus, may be required to be placed on more rigid test.

While consiaering this question, we may not also loose sight of the fact that a student who aspires to take admission in a professional college keeping in view the extent of competition he has to face, would like to appear in as many examinations as possible. For the said purpose he or she may not choose only one State. Even in a State like Karnataka, as has been ~oticed in T.MA. Pai Foundation (supra), a large number of private institutions exist. But, if they are permitted to hold their own examinations, not only the students will have to purchase different admission forms, which as noticed hereinbefore, may cost between Rs.500 to Rs.1,000 but he may be asked to appear in examinations at various places on the same day or on the next day and having regard to the distance, the transport facilities and other factors, he may not be able to appear therein. Travelling from place to place for the purpose of appearance at the examinations in quick .succession would ?.lso entail a huge expenditure. It may also be difficult to direct that such examinations be held with sufficient time gap. The fact remains that in terms of this judgment each State will be entitled to hold their own examinations. We are also not oblivious of the fact that aHegations have been made that some institutions even may not sell an admission form unless it is assured of a hefty sum at the time of admission. It may be true that the States like Karnataka, Kerala and Tamil Nadu have permitted the minority institutions to conduct their own examinations for the purpose of admitting the sturients of their choice. Some institutions have pointed out that they have been holding such examinations for a long long time on all-India basis and fairness and transparency of such examinations have never been questioned by any State or the statutory al.11horities. We do not intend to go into the correctness or otherwise of the said plea. However, their cases may be considered separately H

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A by the appropriate body if any occasion arises therefor. While granting the right to detennine the suitability of a candidate on the basis of marks obtained in the qualifying examination or on the basis of their own examination, or an examination conducted by the State, merit cannot be sacrificed. Some mechanism as far as practicable must be found out also for the purpose of judging the inter se merit.

Furthermore, answers to Questions 5 (a) and (c), would go to show that the minority unaided institution have a right to evolve their own machinery for admitting the students on the basis of merit subject of course to passing the fairness and transparency test. Even for non-minority professional institutions such a right has been recognized. There is no mechanism which would ensure fairness or transparency of the examination held by each and every unaided professional institution. A suggestion has been mooted out that Associations/Federations of private institutions have been formed. It may, thus, be possible to protect the right of the minority if such Associations/ Federations take a decision in this behalf in consultation with the statutory authorities or the concerned State as regards holding of a common entrance test for the said purpose.

We may notice that Mr. R.N. Trivedi, learned Additional Solicitor General, has submitted that the Central Government may hold such all-India examinations but there are practical difficulties in this behalf, as has been rightly pointed out by Mr. Venugopal. The need of each State must be judged separately. A number of students may like to take a chance of taking admission in more than one State. Unless proper mechanism and _requisite infrastructure 'therefor is created, as at present advised, it may not be possible for the Central Government to hold any examination on all-India basis. There is another aspect of the matter which cannot be lost sight of. There must be an agency which would have to detennine the equivalence of several examinations. Many universities have adopted such a mechanism. The standard of education varies from State to State or university to university or board to board. In such a situation, equivalence of degrees must be considered for the said purpose by an appropriate authority. G In the aforementioned premise, I am of the opinion that the right of the minorities should be protected and fairness and transparency in holding such examinations would also be maintained if the minority institutions come to a consensus through their association or federation to hold a common test under the supervision of a monitoring committee which may be subject to H

ISLAMIC ACADEMY OF EDUCATION.'" STATE [S.B SINHA, J] 565 verification at a later stage by taking recourse to : ( 1) report back systelJI; \2) A all answer papers may be preserved; and (3) in case of dispute some independent agency may determine the same,

It goes without saying that having regard to the number of institutions vis-a-vis number of candidates with reference to the local needs, it will be open to the State/University to fix higher cut-off marks than prescribed by the B Medical Council oflndia or the All India Council for Technical Education. So far as common entrance test proposed to be held by the Federation/Association of private unaided professional institutions is concerned, the modalities and the detailed procedure therefor must be worked out so that it may not cause any undue inconvenience to either the students or the institution(s). By way of an example, we may state that if a common entrance test is held under the auspices of the Federation/Association, it must clearly spell out that those who belong to minority community, whether based on religion or language, shall be admitted only in the institutions run by such community and not in the institutions run by the other community at the first instance. Only in the event the seats remain unfilled up, they would cle.arly be filled up by the students belonging to the general category including those who do not belong to that particular community running the institution. Similarly, the mode and manner in which the expenses are to be incurred for holding the examinations, the apportionment thereof as well the disbursement of the amount earned by way of selling the admission fonns etc. have to be worked out by the Committee.

The minority institutions imparting professional courses may have a legal or constitutional right to hold their own examination; but a serious consideration is required to be bestowed as to whether for the purpJse of judging merit they 'Should opt for the Common Entrance Test held by the p State. Such a course, if resorted to, would not only be helpful for detennining the inter se merit between the students/candidates but also would be sufficient to be indicative of the fact how and to what extent the students belonging to minorities lag behind the majority so that special efforts can be made to bring their standard up to the national level. G The quota of seats to be filled up by the State Government for the poor or weaker sections of society may be fixed on the basis of the entrance test held by the concerned State Government or the University. Economic disability of a meritorious st~dent should come to the forefront for detemtining criteria as regard poor or weaker sections of the society. H

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A There cannot, however, be any gain-saying that the appropriate statutory authority on a deeper consideration of the matter may prescribe a suitable method for the purpose of detennining the merit as also the fair and transparent manner in which such examinations can be conducted. Such a power exists under the UGC Act, MCI Act and AICTE Act. The relevant enactments B wherein these statutory authorities have been created provide for such law. However, assuming such a machinery is not evolved, the State may constitute a body which may be headed by a person who has been a judge of the High Court to be nomfoated by the Chief Justice thereof. Standard of education at no cost shall be given a go by.

C Furthermore, any institution if it thinks proper and expedient, may file an application for grant of exemption so as to enable it to hold its own examination. An application in this behalf should be filed by the end of April of the previous year in which such examination is sought to be held. The aforementioned body would pass an appropriate order within three months from the date of receipt of such representation upon giving an opportunity D of hearing and placing of material in support of its stand, to the institution concerned.

Several States like State of Tamil Nadu, Kamataka and Kerala have pennitted the educational institutions to hold their own examination for the purpose of admitting students within their quota. Some of the States like E Maharashtra and Gujarat insist on admitting the students through Common Entrance Test. The following chart gives a glimpse as to how different States understood the judgment of this Court differently:

State Admissions Govt. Management

F Andhra Pradesh 85% 15% Delhi 95% 15%Max Gujarat 85% 15% Haryana 15%AIEEE 15% 70%CEET 2003 G Karnataka 75% 25% Kerala 500/o 500/o Orissa 85% 15% TamiJNadu 500/o 500/o Uttar Pradesh 85% 15% H

ISL..\.MIC ACADEMY OF EDUCATION. v. STATE [V.N. KHARE, CJ.] 567

Chhattisgarh 6()0/o 40% A Maharashtra 85% 15% (These seats must also be filled from the State common entrance test list) Unless there exists any exigency normally the institutions will have the B right to admit a higher percentage of students depending upon their need. However all such students must be admitted only on merit. !'1 the event, some seats remain vacant, they must be filled by general category students strictly on merit.

As noticed hereinbefore, different States and different High Courts C Ohave laid down different percentages of seats for management and the State. The learned counsels appearing on behalf of parties have submitted that this Court may, with a view to avoid any future controversy, fix a definite percentage for the said purpose. We are afraid that it is not possible. Different institutions may be established by different minority communities. The need of the minority community may differ from State to State. The need of the minority community may have a nexus with the population belonging to that community in that State. It will further depend upon various other relevant factors. By way of example, we may say that in a State where the percentage of a particular religion may be 30 or 35, the minority institution established by members of that religion may have a higher stake than the members of the community professing a religion but the population of which is negligible. Similar may be the case with minority institutions based on language.

The percentage of seats will also depend upon the need of the community in a particular State as also the need of the institution itself. The nature of the professional course would a'lso have relevance. All these factors must be taken into consideration by the appropriate committee or Body so long a statutory regulation is not framed in this behalf.

Furthermore, the need of the community vis-a-vis the local needs must be judged upon taking into consideration the relevant factors and ignoring irrelevant ones. In terms of Paragraph 68 of the judgment, local need would be a relevant factor for the purpose of determining the percentage of students who would be admitted on non-minority quota. Local needs, if it is compelling state interest, will have a primacy over the need of the minority community and in that view of the matter it would not be correct to lay down a proposition of law that the need of that community in the State would be paramount. Each H

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A case, thus, has to be considered on its own merit and no hard and fast rule can be laid down therefor.

For the aforementioned purpose also, a machinery should be evolved in the respective States, the decision of which shall be final and binding.

B However, there may not be any permanent Committee functioning as a tribunal. Such a body, if any, must be created under a statute. A tribunal with an adjudicatory power should not be directed to be created by this Court in exercise of its power under Article 142 of the Constitution of India. This direction is only interim in nature and is being issued in the interest of all - C concerned. It is, therefore, clarified that the body created in terms of this judgment would function only so long a statutory body, if any, does not come into being by reason of a statute or statutory rules. The Legislature or the rule making authority may, however, lay down the procedure for proper functioning thereof.

D MERIT:

Technical profession in general and medical profession in particular in all countries and in all ages has been considered to be a noble profession. To acquire excellence, these professions demand a very high calibre, which criteria can be satisfied only by the meritorious students. If we want to achieve very high standard which would be comparable to the standard of the developed countries, then merit and merit alone should be the basis of selection for the candidates.

Secondly, not only to maintain high standard of education, but als:> to maintain uniformity of standard, the right of selection of candidates for any professional course cannot be left to the discretion of any inoividual management. Efforts must be made to find out one single standard for all the institutions.

Thirdly, to ensure high standard of education and for that purpose to ensure admission to the most eligible candidates, requiring merit in a poor country like ours, the tuition and other fees should be within the reach of common people.

So far as minority institutions are concerned, merit criteria would have to be judged like a pyramid. At the kindergarten, primary, secondary levels, minorities may have 100% quota. At this level the merit may not have much

ISLAMIC ACADEMY OF EDUCATION."· STATE [V.N. KHARE, CJ] 569

relevance at all but at the level of higher education and in particular professional education and post graduate level education, merit indisputably should be a relevant criteria. At the post-graduation level, where there may be a few seats, the minority institutions may not have much say in the matter. ·" Services of doctors, engineers and other professionals coming out from the institutions of professional excellence must be made available to the entire country and not to any particular class or group of people. All citizens including the minorities have also a fundamental duty in this behalf.

HUMAN RIGHTS ASPECTS OF SELECTION ON THE BASIS OF MERIT:

This aspect of the matter may also be considered from Human Rights C angle.

Rights of minorities, on the one hand, and rights of persons to have higher education and right of development should be so construed so as to enable the Court to give effect thereto.

The Universal Declaration of Human Rights, 1948 provides for 27 rights. D Right of Education is also one of the human rights. Article 26 reads thus:

"(I) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit."

(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. Parents have a prior right to choose the kind of education that shall be given to their children."

(Emphasis applied) G Article 3 of Convention Against Discrimination in Education (1960) reads thus:

"Article 3 undertakes "to ensure, by legislation, where necessary, that there is no discrimination in the admission of pupils to educational H

570 SUPREME COURT REPORTS [2003} SUPP. 2 S.C.R.

A institutions; not to allow any difference of treatment by the public authorities between nationals, except on the basis of merit or need, in the matter of school fees and the grant of scholarships to give foreign nationals resident within their territory the same access to education as that given to their own nationals."

B Apart from the aforementioned rights, Right to Development is also a human right. "Development" connotes an ongoing process. An economic prosperity or elimination of poverty is not the only goal to be achieved but along with it allows individuals to lead a life with dignity with a view to participate in the Governmental process so as to enable them to preserve their identity and culture.

We may refer to the UN Declaration on the Right to Development, 1986. The Declaration describes development as a comprehensive economic, social, cultural and political process, which aims at constant improvement of well being of people and of individuals on the basis of their active, free and meaningful participation in the process.

In the UNESCO Convention against Discrimination in Education, the States parties agree (Article 5[c]) that "it is essential to recognize the right of members of national minorities to carry on their own educational activities, including the maintenance of schools and, depending on the educational policy of each State, the use or the teaching of their own language," and set out the circumstances in which this right may be exercised. The European Convention on Human Rights contains a provision (Article 14) in which "association with a national minority" is listed among a series of grounds upon which discrimination is prohibited. The International Covenant on Civii F and Political Rights, adopted by the UN General Assembly in 1966, includes an article on the rights of persons belonging to minorities which reads:

"Article 27. In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language."

Among the decisions of principal organs of the United Nations which have dealt with the question of-special protective measures for ethnic, religious, or linguistic groups are three resolutions of the General Assembly: (I) on the future government of Palestine, (2) on the question of the disposal of the

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former Italian colonies and (3) on the question of Eritrea. In addition, the A Statue of the City of Jerusalem, approved by the Trusteeship Council 1 on 4 April 1950, provides special protective measures for ethnic, religious, or linguistic groups in articles dealing with human rights and fundamental freedoms, the legislative council, the judicial system, official and working languages, the educational system and cultural and benevolent institutions, and broadcasting and television.

From the texts of the instruments and decisions mentioned above, it may be inferred that the term "minority" is applied internationally to two . distinct categories of persons: (a) minorities whose members desire equality with dominant groups in the sole sense of non-discrimination, and (b) those whose members desire equality with dominant groups in the sense of non- discrimination and the recognition of certain special rights and the rendering of certain positive services. The kind of "minority rights" that they feel they are entitled to claim iftheir equality within the State is to be real includes one or more of the following: D (a) provision of adequate primary and secondary education for the minority in its own language and its cultural traditions; (b) provision for maintenance of the culture of the minority through the establishment and operation of schools, libraries, museums, media of information, and other cultural and educational E institutions;

(c) provision of adequate facilities to the minority for the use of its language, either orally or in writing, in the legislature, before the courts, and in administration, and the granting of the right to use that language in private intercourse; F (d) provision for respect of the family law and personal status of the minority and their religious practices and interests; and

(e) provision of a certain degree of autonomy.

Several areas are sought to be secured wherefor the struggle continues. G The gap between the developed and the developing countries is a yawning one. Whereas there has been a rapid economic growth in a few countries bringing millions of people out of poverty, narrowing the gap between haves and have-nots, a large number of countries have seen the gap grow and poverty increase. Development and the eradication of poverty vis-a-vis human rights must be seen in that perspective. H

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A The right to establish professional colleges both by minorities and non- minorities has been found in Article l 9(1)(g) as also Article 30 of the Constitution of India. These rights vis-a-vis restrictions and limitations thereupon should be construed not only from economic point of view but also having regard to the international treaties, declarations and conventions on Human Rights. The right of a minority is a human right so also the righ.t of development. Thus, subject to reasonable restrictions, any unaided institution imparting professional courses may although exercise greater autonomy in the matter of management and determination of the fee structure, it will have a limited right so far as the right to admit students is concerned. T.M.A. Pai Foundation says that merit shall be the criteria. Right of development finds place in WTO and GA TT. It takes into consideration globalisation and opening up of economy. Excellence in professional education must be viewed from the economic interest in the country. In order to compete with the other developed countries, GDP of India should be around 15% instead of present rate of 5%. This can be achieved only by producing students of excellence, which can be achieved only by encouraging institutions of excellence imparting professional education to those who are meritorious. Giving encouragement to the students, having better merit will, thus, have a direct nexus with the economic and consequently the national interests of the country. The right of development from the human right point of view must be construed liberally. When there are two competing human rights namely human rights for the religious minorities and the human rights for development, having regard to the economic and national interest of the country in the matter of admission of students, the latter should be allowed to prevail subject to protection of the basic minority rights. The State may have to strike a delicate balance between these two competing rights. Furthermore, the right to admit students may vary from course to course, discipline to discipline. At the stage of post graduate level, there may be only one seat ·or two seats, and, thus, in such a situation the right of the minority institutions to admit a student may be less than in the case of non-professional course.

".Something more than mere animal existence and the inhibition against H the deprivation of life e.xtends to all those limits and faculties by

ISLAMICACADEMYOF EDUCATION. v. STATE (V.N. KHARE, CJ] 573 which life is enjoyed." A Therein it was noticed :

.. ~·. "The right to development in the developing countries is itself a human right. The same has been made a part of WTO and GA TT. In 'The World Trade Organization, Law, Practice, and Policy (Oxford) by B Matsushita Schoenbaum and Mauroidis at page 389, it is stated:

"The United Nations has proclaimed the existence of a human right to development. This right refers not only to economic growth but also to human welfare, including health, education, employment, social security, and a wide-range of other human needs. This human C · right to development is vaguely defined as a so-called third-generation human right that cannot be implemented in the same way as civil and political human rights. Rather, it is the obligation of states and intergovernmental organizations to work within the scope of their authority to combat poverty and misery in disadvantaged countries. " D [Emphasis applied]

-·.. Poverty to a great extent can be combated through education. Having regard to globalisation and opening up of the market, the State expects various medical colleges and educational institutions and universities to move in. Under WTO and GA TT human development has taken its firm root. E A decent life to the persons living in the society in general is perceived.

In the said scenario this Court in Kapi/a Hingorani (supra) observed:

"The States of India are welfare States. They having regard to the constitutional provisions adumbrated in the Constitution of India and F in particular Part IV thereof laying down the Directive Principles of the State Policy and Part IV A laying down the Fundamental Duties are bound to preserve the practice to maintain the human dignity."

To achieve this, the promotion of human development and the preservation and protection of human rights proceed from a common platform. G Both reflect the commitment of the people to promote freedom, the well-being and dignity of individuals in society. Human development as a human right has a direct nexus with the increase in capabilities of human beings as also the range of things they can do. Human development is eventually in the interest of society and on a larger canvas, it is in the national interest also. H

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A As a human right, human development finds its echo in several areas as for example in excellence in professional education, be it the study of medicine, engineering or law. Progress and development in these fields will not only give .a boost to the economy of the country but also result in better living conditions for the people of India.

B In T.M.A. Pai Foundation's case (supra), this Court called upon the private unaided institutions including the minority educational institutions to fulfill the hopes and aspirations of the meritorious students and in particular the meritorious socially and educationally backward students. Higher education as contained in Article 26 must be based on merit. The competing human . C rights of the minorities vis-a-vis any other citizen, thus, requires a delicate balance.

Furthermore Article 5 lAG) enjoins a duty of every citizen of India inter alia to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of excellence and D achievement.

In T.M.A Poi Foundation, (supra), this Court in no uncertain terms said that merit would be the first criteria for imparting professional education. It must be given full effect with the aid of these additional reasons.

E RECOGNITION/AFFILIATION:

Although the minorities have a right to establish institutions of their own choice, they admittedly do not have any right of recognition or affiliation for the said purpose. They must fulfill the requirements of law as also other conditions which may reasonably be fixed by the appropriate Government or F the university.

In T.M.A. Pai Foundation, (supra) it was laid down that certain conditions can be imposed as regards admission of students, mode of holding examinations at the time of grant of recognition. A question has been raised by Mr. Nariman that once recognition has been granted, no further restriction can be imposed. G We do not agree. There exist some institutions in this country which are more than a century old. It would be too much to say that only because an institution receives recognition/affiliation at a distant point of time the appropriate Government is denuded of its power to lay down any law iri imposing any fresh condition despite the need of change owing to passage H of time. Furthermore, the Parliament or the State Legislatures are not denuded

Iii

ISLAMIC ACADEMY OF EDUCATION. v. STATE [V.N. KHARE, CJ.) 575 of its power having regard to restrictions that may satisfy the test of clause A (6) of Article 19 of the Constitution of India or regulations in tenns of Article 30 depending upon the national interest/public interest and other relevant factors. We, however, wish to emphasise that the State/University while granting recognition or the affiliation cannot impose any condition in furtherance of its own needs or in pursuit of the Directive Principles of State B Policy.

AN EPILOGUE:

H is unfortunate that a Constitution Bench had to be constituted for interpreting a I I-Judge Bench judgment. Probably in judicial history of India, C this has been done for the first time. It is equally unfortunate that all of us cannot agree on all the points, despite the fact that the matter involves construction of a judgment. In the name of interpretation we have to some extent, however little it may be re-written the judgment. We have laid down new laws and issued directions purported to be in terms of Article 142 of the Constitution. We have interpreted T.M.A. Pai; but we have also made D .endeavours to give effect to it. In some areas it was possible; in some other it was not.

We have refrained ourselves from expressing any opinion at this stage as to whether grant of settlement of Government land at a throw-away price or allowing the private institutions to avail the facilities of Government E hospitals would amount to grant of aid or not. We have also not expressed any opinion on cross-subsidy.

The superior courts in India exist for interpretation of Constitution or interpretation of statutes. They cannot evolve a fool-proof system on the. basis of affidavits filed by the parties or upon hearing their counsel. Certain F details of vexing problems on the basis of tile interpretation given by this Court must be undertaken by the statutory bodies which have the requisite expertise. It is expected that statutory bodies would be able to perform their duties for which they have been established. The doors of the Court should not be knocked every time, if a problem arises in implementation of the G judgment, however slight it may be. The Court has its own limitations. The problems which can be sorted at the ground level by holding consultations should not be allowed to be brought to the Court. It is, in that view of the matter, we have thought it fit to direct setting up of committees for the aforementioned purposes. H

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A In the present constitutional set up having regard to Entry 66, List I of the Constitution of India, the legislative power of the State may be very limited; the extent whereof may have to be detennined in appropriate cases. But the stake of the State in such matters is also not minimal. The State has to evolve its own policies generating the source of employment.

B We have come across several schemes framed by the States in terms whereof incentives are being given to the private industries for generating employment or reduction in taxes is being proposed if graduates are employed. The respective States, therefore, must apply its mind while granting essentiality certificate inasmuch as the human resource development problems will have C to be faced by it. In evolving a sound policy decision in this behalf, the statutory bodies shall also have to lend their ears to the respective State Governments while granting permission for establishment of the professional educational institutions. The Human Resource Development Ministry of the Central Government should also play its role.

D The I.As. for clarification are, thus, disposed of. The writ petitions may now be placed before appropriate Benches for disposal. In the facts and circumstances of this case, there shall be no order as to costs.

K.K.T. Referred to the Larger Bench.